author: OVERTON, Judge.

text:
    Jimmy R. VELEZ, Petitioner, v. CRITERION INSURANCE COMPANY, Respondent.
    No. 65003.
    Supreme Court of Florida.
    Nov. 29, 1984.
    Rehearing Denied Feb. 7, 1985.
    Daniel C. Kasaris of Yanchuck, Thompson, Young & Berman, P.A., St. Peters-burg, for petitioner.
    Mark E. Hungate and William T. Atchley of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for respondent.
   OVERTON, Judge.

This is a petition to review Velez v. Criterion Insurance Co., 445 So.2d 1049 (Fla. 2d DCA 1984), in which the Second District Court of Appeal held that a moped, as defined by the legislature, is a self-propelled vehicle and, therefore, a person injured while riding a moped is precluded from recovery under the personal injury protection coverage on his automobile. We find direct conflict with State Farm Mutual Automobile Insurance Co. v. Link, 416 So.2d 875 (Fla. 5th DCA 1982). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we quash the Velez decision and find that petitioner, Velez, may recover under his personal injury protection coverage.

This cause involves the interpretation of section 627.736(4)(d)l, Florida Statutes (1981), and a determination of whether the legislature intended to characterize a moped as a self-propelled vehicle. The section in question provides:

The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle.

Section 627.736(4)(d)l, Fla.Stat. (1981).

In the instant case, Velez was injured in a collision with an automobile while he was riding his moped. He filed for personal injury protection benefits under his automobile policy with respondent. The automobile covered by the policy was not involved in the accident. The trial court granted respondent’s motion for summary judgment on the basis that an insurer is not liable under a motor vehicle policy for payment of personal injury protection benefits to an insured who is injured while riding a moped.

The district court affirmed the trial court, finding that a moped is a self-propelled vehicle for purposes of section 627.-736(4)(d)l and, therefore, Velez was precluded from recovery under the personal injury protection coverage on his automobile. The district court expressly acknowledged conflict with the decision of the Fifth District Court of Appeal in Link. For the reasons expressed below, we disagree with the district court in the instant case and approve the Link decision.

Initially, we note that section 627.732, Florida Statutes (1981), specifically excludes mopeds from the definition of “motor vehicle” for purposes of the Florida Automobile. Reparations Reform Act, sections 627.730-627.741, Florida Statutes (1981). Therefore, as stated previously, the only question is whether a moped is a self-propelled vehicle. The Link court answered this question in the negative, finding that a moped is a bicycle as defined in section 316.003(2), Florida Statutes (1981), and not a vehicle as defined in section 316.003(64). That court reasoned that a moped could not, therefore, be a self-propelled vehicle for purposes of the personal injury protection benefits exclusion under section 627.736(4)(d)l. We agree and find that the result reached by the Link court is the better construction of the statutory provisions involved. We note that the legislature has addressed mopeds under various laws dealing with bicycles, motor vehicles, and motorcycles, giving them characteristics of each group. For purposes of the Florida Automobile Reparations Reform Act, however, we find that section 627.732(1), by its reference to section 316.-003(2), unambiguously defines mopeds as bicycles. Further, it is clear that under this definition a bicycle is not a vehicle. Therefore, as correctly determined in Link, the legislature did not intend that a moped be considered as a self-propelled vehicle.

Accordingly, we find that Velez is not precluded from recovery under section 627.736(4)(d)l and we quash the decision of the district court and remand for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD C.J. dissents.

      . Section 627.732(1), Florida Statutes (1981), reads as follows:
      “Motor vehicle" means any self-propelled vehicle which is of a type both designed and required to be licensed for use on the highways of this state except mopeds, as defined in s. 316.003(2) ....

      . Section 316.003(2), Florida Statutes (1982), reads as follows:
      BICYCLE. — Any device propelled by human power, or any moped propelled by a pedal-activated helper motor with a manufacturer’s certified maximum rating of 1 ½ brake horsepower, upon which any person may ride, having two tandem wheels, either of which is 20 inches or more in diameter, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels.

      . Section 316.003(64), Florida Statutes (1981), reads as follows:
      VEHICLE. — Any device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, except bicycles or mopeds as defined in subsection (2) or devises used exclusively upon stationary rails or tracks.

      . See, e.g., § 316.2065(14)-(15), Fla.Stat. (1981).

      . See, e.g., § 233.063(1), Fla.Stat. (1981); § 316.-2075, Fla.Stat. (1981); § 320.0803, Fla.Stat. (1981).

      . See, e.g., § 320.02(6), Fla.Stat. (1981); § 320.-08(1), Fla.Stat. (1981).


source: Caselaw Access Project

author: McDONALD, Justice. BOYD, Chief Justice,

license: Public Domain

text:
    PENTHOUSE NORTH ASSOCIATION, INC., Petitioner, v. Remo M. LOMBARDI, et al., Respondents.
    No. 64380.
    Supreme Court of Florida.
    Dec. 6, 1984.
    Rehearing Denied Feb. 5, 1985.

      Mark B. Schorr of Becker, Poliakoff & Streitfeld, Fort Lauderdale, for petitioner.
    Levy, Shapiro, Kneen & Kingcade, Palm Beach, Coleman, Leonard & Morrison, Fort Lauderdale, and Larry Klein, West Palm Beach, for respondents.
   McDONALD, Justice.

We have for review Penthouse North Association, Inc. v. Lombardi, 436 So.2d 184 (Fla. 4th DCA 1983), based upon express and direct conflict with Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla.1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The question presented is whether an action by a condominium association against its directors for an alleged breach of fiduciary duty in reference to a rent escalation agreement brought thirteen years after the execution of the agreement, but before the escalated rent was demanded, is timely. We hold that it is.

Penthouse North Association, Inc.- (association), a condominium association, filed its second amended complaint in 1980 against Remo Lombardi, Alfred Anderson, and the estate of Joseph Novotny (lessors) for breach of the lessors’ fiduciary duties as officers and directors of the association. In 1966 the lessors executed a ninety-nine-year recreation lease containing a rent escalation clause tied to the consumer price index. The association alleged that the lessors, who were simultaneously directors of the association, breached their fiduciary duties by including the escalation clause without disclosing it to the association members and by using their position to enrich themselves at the expense of the association. The association alleged timely filing of the original complaint because the lessors did not relinquish control of the association until 1968, and Florida case law precluded this cause of action until 1977. The association brought the action promptly after being notified in 1979 that the éscalation clause would be enforced. The trial court, finding that the action was barred by the statute of limitation, granted the lessors’ motion to dismiss the second amended complaint with prejudice. The trial court later struck the lessors’ request for attorney’s fees, finding that neither section 57.105, Florida Statutes (1979), nor the association’s articles of incorporation authorized an award of attorney’s fees.

The association appealed the dismissals of its original and second amended complaints; the lessors cross-appealed the order striking their request for attorney’s fees. The district court rejected the contrary holding in Burleigh House and affirmed the dismissals, reasoning that Avila South Condominium Association, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977), did not revive otherwise time-barred causes of actions by delaying their accrual until Avila South was decided. The district court reversed and remanded the order striking attorney’s fees, finding the lessors entitled to attorney’s fees either under the indemnification provision in the association’s articles of incorporation or under section 607.-014, Florida Statutes (1979). While we agree with the district court’s interpretation of the effect of Avila South on previously time-barred actions, we quash the rest of the decision under review because it failed to consider when the cause of action accrued.

The association urges us to adopt the Burleigh House holding that a condominium association’s cause of action for breach of fiduciary duties and unjust enrichment by its former officers and directors did not accrue until Avila South was decided in 1977. We agree that Avila South had retroactive application. Nevertheless, we disapprove any implication in Burleigh House that Avila South breathed new life into those causes of action previously barred by a statute of limitations or laches. This Court has often changed common-law tort rules or recognized new causes of action without affecting time-barred claims. This may seem unfair to those plaintiffs who would have had viable claims if the change of law had occurred earlier, but potential and actual liability must end with finality at some point. Persons should have the right to conduct their affairs without fear of liability for their actions once an appropriate limitation period has passed. Accordingly, we approve the district court’s holding on this point and disapprove any language in Burleigh House to the contrary.

We do not agree, however, that the association’s cause of action in this case was time-barred. Because the trial court decided this case on a motion to dismiss, all facts alleged in the complaint must be assumed to be true. Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla.1973). The association’s second amended complaint alleged a breach of fiduciary duty in 1966 by the lessors when they executed the recreation lease with an escalation clause effective in 1981. The association also alleged it was not notified until 1979 that the escalation clause would be enforced by the lessors. Assuming these allegations to be true, the last element of the association’s cause of action, damages, occurred no earlier than either when the association received notice that the rent escalation clause would be enforced in 1979 or when the lessors actually demanded the escalated rent in 1981.

This is so because the obligation to pay rent is a contingent one which becomes an enforceable debt only as the rent is earned through the lessee’s use of the property. De Vore v. Lee, 158 Fla. 608, 30 So.2d 924 (1947). A statute of limitation does not commence to run until the cause of action accrues. A cause of action does not accrue until someone has been damaged by the acts complained of.

The alleged wrong took place in 1966 when the defendants, acting as officers and directors of the condominium association, allegedly violated their fiduciary duties. The harm, or damages, did not materialize until the escalated rent was demanded. In this case the association timely filed this action upon notification of the lessors’ intent to escalate the recreation lease rent. If anything, the action was premature rather than tardy. The second amended complaint should not have been dismissed, and we quash that portion of the district court’s opinion.

We also quash the rest of the district court’s opinion finding the lessors entitled to attorney’s fees. The trial court found that the indemnification provision in the association’s articles of incorporation applied to actions between the lessors and third parties, but not in actions between the lessors and the association itself. The district court disagreed. The court distinguished its own prior decision in Century Village, Inc. v. Chatham Condominium Associations, 387 So.2d 523 (Fla. 4th DCA 1980), on the grounds that Century Village neither discussed the statutory entitlement to officer and director indemnity found in section 607.014 nor involved a breach of fiduciary duty claim.

Section 607.014 has no application to this association, which is a not-for-profit corporation. The indemnification provisions of 607.014 have been applicable to not-for-profit corporations only since 1982. § 617.-028, Fla.Stat. (Supp.1982). The subsequent enactment of an applicable indemnification provision, however, does not control in this case first brought by the association in 1979.

The fact that this is an action for breach of fiduciary duty and unjust enrichment further convinces us that the lessors’ indemnification argument must fail. We agree with the following answer from Century Village to a similar contention by a lessor:

Accepting the lessor’s contention would amount to accepting the incongruous theory that although the appellees [condominium associations] may be successful in their litigation, they would nevertheless have to satisfy their own judgment in addition to paying the lessor’s costs. The law will not sanction such an anomaly-

387 So.2d at 524.

We find no applicable statutory or contractual basis for an award of attorney’s fees to the lessors. The trial court properly struck the lessors’ motion for attorney’s fees.

Accordingly, we approve in part and quash in part the district court decision. This case is remanded for reinstatement of the association’s second amended complaint and further proceedings consistent with this opinion.

It is so ordered.

ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., dissents with an opinion, in which ALDERMAN, J., concurs.

BOYD, Chief Justice,

dissenting.

I agree with that portion of the majority opinion which holds that a change in deci-sional law does not revive time-barred causes of action. I dissent to the Court’s holding that the cause of action in this case was not barred by the statute of limitations. In particular, I disagree with the finding that the cause of action did not accrue until the lessors of the recreation facilities sought to invoke the escalation clause and increase the rent.

The complaint in this case charged a breach of fiduciary duty occurring when, as alleged, the lessors of the recreation property, acting on behalf of the condominium owners’ association, lessees, executed the lease containing a provision for rent increases. This is alleged to have occurred in 1966. In 1968 the developers ceased to function as both lessors and lessees of the recreation property, and new officers and directors took over the operation of the condominium association, the lessees. At that time the new officers and directors of the association clearly had, it must be presumed, notice of all of the provisions of all of the agreements affecting the relationship between the lessors of the recreation property and the condominium owners,' or lessees of the recreation property.

The damages flowing, if any, from the charged breach of fiduciary duty, consisted in the existence of a provision for escalable rent, and did not depend on an actual increase. The provision subjecting the condominium owners to the possibility of rent increases is what caused the alleged injury. Action to redress that injury needed to be taken within the applicable limitations period as measured from the time the developers relinquished control of the association and the officers and directors representing the condominium purchasers took over. The suggestion that the association had no notice of the existence of the escalation clause until 1979 is erroneous. The limitations period began to run when the association knew or should have known of the alleged acts constituting a breach of fiduciary duty.

The applicable limitations period was three, four, or five years depending on how one might characterize the nature of the cause of action. See § 95.11(3), (4), and (5), Fla.Stat. (1967). It is unnecessary to undertake that inquiry because the action was not brought until over ten years after the condominium purchasers took over control of the association. Therefore the action was barred by the statute of limitations, as was correctly held by both the trial and appellate courts. I would approve the decision of the district court of appeal.

ALDERMAN, J., concurs.

       Statutes of limitation are to be distinguished from statutes of repose. In the latter instance if the last element of a cause of action, damages, does not accrue within a designated time, no claim can be maintained. We have here a statute of limitation situation.


author: PER CURIAM. OVERTON, Justice,

text:
    John O’CALLAGHAN, Appellant, v. STATE of Florida, Appellee. John O’CALLAGHAN, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    Nos. 65353 to 65355.
    Supreme Court of Florida.
    Dec. 13, 1984.
    Rehearing Denied Feb. 7, 1985.
    David Lipman of Lipman & Weisberg, Miami, and Steven L. Winter, New York City, for appellant/petitioner.
    Jim Smith, Atty. Gen., Richard G. Bart-mon, Sarah B. Mayer and Marlyn J. Altman, Asst. Attys. Gen., West Palm Beach, for appellee/respondent.
   PER CURIAM.

In this post-conviction relief proceeding, John O’Callaghan, who is under a sentence of death, seeks a stay of execution and (1) appeals from denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850; (2) petitions for habeas corpus relief, asserting ineffective assistance of appellate counsel; and (3) applies for leave to file a petition for writ of error coram nobis, asserting that a critical witness has recanted a material part of his testimony. This Court has jurisdiction, article V, section 3(b)(1), Florida Constitution. We granted a stay of execution to allow this Court an opportunity to fully address these claims for relief.

This Court previously affirmed appellant’s conviction for first-degree murder and a sentence of death. See O’Callaghan v. State, 429 So.2d 691 (Fla.1983).

Motion for 3.850 Relief

Appellant’s 3.850 motion raises eleven claims for relief. All but three of these claims were raised or could have been raised in the appeal on the merits. As we have repeatedly stated, a 3.850 motion cannot be utilized for a second appeal to consider issues that either were raised or could have been raised in the initial appeal. Jones v. State, 446 So.2d 1059 (Fla.1984); Demps v. State, 416 So.2d 808 (Fla.1982); Christopher v. State, 416 So.2d 450 (Fla.1982); Foster v. State, 400 So.2d 1 (Fla.1981); Sullivan v. State, 372 So.2d 938 (Fla.1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The three remaining issues are (1) that the Florida capital sentencing scheme is imposed in an arbitrary and discriminatory manner on the basis of geography, economic status, and sex of the defendant, and the occupation and race of the victim; (2) that a critical material witness has recanted and changed a material portion of his testimony; and (3) that O’Callaghan was deprived of effective assistance of counsel at both the guilt and sentencing phases of his trial.

First, O’Callaghan’s claim that death penalty imposition in Florida is arbitrary and discriminatory has been previously raised and disposed of by this Court in Adams v. State, 449 So.2d 819 (Fla.1984), and Sullivan v. State, 441 So.2d 609 (Fla.1983). See also Wainwright v. Adams, _ U.S. _, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984); Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983). The second issue relating to the change of testimony by a material witness is not a matter to be resolved in a 3.850 proceeding and will be disposed of in this opinion with respect to O’Callaghan’s application for leave to file a petition for writ of error coram nobis. The only claim that merits discussion relates to the allegations of ineffective assistance of counsel. The trial court denied O’Callaghan an evidentiary hearing on this issue and specifically found in its order denying relief that O’Callaghan did not sufficiently demonstrate that he received ineffective assistance of counsel under the standards set forth by the United States Supreme Court in its recent decision in Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The question that must first be resolved is whether the allegations made by O’Callaghan were sufficient to require an evidentiary hearing on the claim of ineffective assistance of counsel. The law is clear that under rule 3.850 procedure, a movant is entitled to an evidentiary hearing unless the motion or files and records in the case conclusively show that the movant is entitled to no relief. See Riley v. State, 433 So.2d 976 (Fla.1983); Demps v. State, 416 So.2d 808 (Fla.1982); LeDuc v. State, 415 So.2d 721 (Fla.1982). O’Callaghan alleges, in part, that his counsel’s motion for a psychiatric examination of O’Callaghan was granted, but that O’Callaghan’s counsel never had the examination conducted; that O’Callaghan’s counsel called no witness in mitigation or for any purpose at the sentencing hearing; that O’Callaghan’s counsel never contacted O’Callaghan’s parents prior to the trial; that if his parents had been contacted, his counsel would have discovered that O’Callaghan suffered a harsh and alienating childhood, serious physical and psychological abuse as a child, a serious drug problem as a teenager, and had a family history of mental illness; and that a mental health professional’s affidavit asserts he exhibits likely evidence of brain damage and mental illness. We conclude that these allegations are sufficient to require an evidentiary hearing on the issue of ineffective assistance of counsel.

Motion for Leave to File a Petition for Writ of Error Coram Nobis

O’Callaghan asserts that his code-fendant, Walter Tucker, a/k/a Beau Mark Tucker, signed an affidavit on May 22, 1984, in which he recanted part of his trial testimony and stated, in part:

1. The night of the crime that O’Callaghan received the death penalty for, I, Beau Tucker fired what I consider to be a fatal shot into Vick, the victim.
2. O’Callaghan had fired two shots in rapid succession, and I believed at the time, and still do, that O’Callaghan missed the victim.
3. After he fired those two shots that missed, he handed me the gun immediately and I fired one shot, which I considered at the time, and still do believe, was the shot that entered his head.

O’Callaghan and Tucker were tried together. Tucker was found guilty of second-degree murder, while O’Callaghan was found guilty of first-degree murder and the jury recommended the imposition of the death penalty. O’Callaghan argues that had these facts been known at the time of trial, he would not have been convicted of first-degree murder or sentenced to death. In rebuttal, the state argues that in order to merit coram nobis relief, this type of newly discovered evidence, if taken as true, must directly invalidate an essential element of the state’s case. Further, the state argues, the new evidence must conclusively have prevented the entry of judgment. We agree with the state that under the conclusiveness test established by this Court in Hallman v. State, 371 So.2d 482, 485 (Fla.1979), this change of testimony would not conclusively have prevented the entry of judgment in the instant case. We agree that the recantation would not have precluded O’Callaghan’s conviction. Using the conclusiveness test, we must also agree that the presentation of that evidence would not change the sentence imposed on the defendant.

Petition for Writ of Habeas Corpus

We find O’Callaghan’s petition for habe-as corpus relief on the ground that he was provided ineffective assistance of counsel during his appeal to be without merit.

Conclusion

For the reasons expressed, we reverse the trial court’s order denying relief under rule 3.850 on the ground of ineffective assistance of counsel, and we remand for a prompt evidentiary hearing on that question. We affirm the trial court’s denial of relief under 3.850 on the other grounds asserted by O’Callaghan. The application for leave to file a petition for writ of error coram nobis and the petition for writ of habeas corpus are each denied.

It is so ordered.

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

OVERTON, J., concurs in part and dissents in part with an opinion.

OVERTON, Justice,

concurring in part, dissenting in part.

I concur in all parts of the majority opinion except the holding that, in effect, denies an evidentiary hearing on the recanted testimony of the codefendant who was convicted of second-degree murder. I fully recognize and support the view that recanting witnesses must be looked upon by courts with utmost suspicion. See, e.g., Bell v. State, 90 So.2d 704 (Fla.1956). Even given that principle of law, however, I find that where a death sentence has been imposed and a material witness has changed his testimony, the court should not be reluctant to at least provide an evidentiary hearing to ascertain the truth. I dissented in Hallman v. State, 371 So.2d 482, 486 (Fla.1979), because I found the rigid application of the “conclusiveness test” overly harsh in death penalty eases, particularly when the “probability test” would be applied had the evidence been discovered in sufficient time to permit the filing of a motion for new trial. I would grant the motion for leave to file a petition for writ of error coram nobis in this case, to the extent of remanding the cause to a trial judge for a determination as to whether the witness was telling the truth at the trial, or in the affidavit. If the court found that the testimony in the affidavit is true, then the trial court would proceed to determine whether that evidence would affect the conviction or the sentence under the probability standard discussed in my dissent in Hallman. I adhere to my dissent in Hall-man because I believe it provides a procedure that will serve to protect this state from executing an individual whose conviction was based in part on false testimony.


author: ALDERMAN, Justice.

text:
    CITIZENS OF the STATE OF FLORIDA, Petitioner, v. FLORIDA PUBLIC SERVICE COMMISSION, Jacksonville Suburban Utilities Corporation and Southern Utilities Company, Respondents.
    No. 64680.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Jack Shreve, Public Counsel and Stephen Burgess, Associate Public Counsel, Office of the Public Counsel, Tallahassee, and Alan C. Sundberg of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, for petitioner.
    William S. Bilenky, Gen. Counsel, Susan F. Clark, Deputy Gen. Counsel and William H. Harrold, Associate Gen. Counsel, for Florida Public Service Com’n, Tallahassee.
    James L. Ade, William A. Van Nortwick, Jr., and Michael A. Candeto of Martin, Ade, Birchfield & Johnson, Jacksonville, for Jacksonville Suburban Utilities Corp. and Southern Utilities Co., respondents.
   ALDERMAN, Justice.

We originally accepted jurisdiction in this cause, reported below as Citizens v. Florida Public Service Commission, 440 So.2d 371 (Fla. 1st DCA 1983), on the basis of conflict with Citizens v. Hawkins, 364 So.2d 723 (Fla.1978). After hearing oral argument, however, we find no express and direct conflict between these cases and, consequently, no basis for this Court to accept jurisdiction in this cause. The petition for review is denied. No motion for rehearing will be entertained by the Court.

It is so ordered.

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

ADKINS, J., dissents.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida ex rel. M.H., a juvenile, Respondent.
    No. 65159.
    Supreme Court of Florida.
    Jan. 10, 1985.

      Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for petitioner.
    Maureen L. McGill, District Legal Counsel, Pensacola, for respondent.
   PER CURIAM.

The decision of the district court of appeal, reported as Department of Health and Rehabilitative Services ex rel. M.H. v. State, 447 So.2d 359 (Fla. 1st DCA 1984), is approved on the authority of A. O. v. State, 456 So.2d 1173 (Fla.1984).

It is so ordered.

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

ADKINS, J., dissents.


text:
    Bobby MYRICK, Appellant, v. STATE of Florida, Appellee.
    Nos. 84-570 to 84-572.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1984.
    Rehearing Denied Jan. 14, 1985.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We vacate defendant’s sentence for breaking and entering with intent to commit grand larceny and for two counts of uttering a forged instrument. We remand for resentencing.

Although the sentencing guidelines were applicable because defendant elected to be sentenced under the guidelines, the trial court did not follow the guidelines procedures. See Fla.R.Crim.P. 3.701 d. The court sentenced defendant without the benefit of a guidelines scoresheet which would have provided a presumptive sentence. Not knowing the presumptive sentence, the court was without sufficient information to decide whether to depart from the guidelines.

Our conclusion is not changed by the facts that the court gave reasons which are now argued to be sufficient to justify a departure from the guidelines and that the court commented that if, after a scoresheet was provided, he determined the guidelines presumptive sentence was heavy enough, he might modify the sentence. We could not accept an argument that under those circumstances there was harmless error. That would put the cart before the horse. The sentencing guidelines were promulgated to provide actual guidance to trial courts in sentencing and not simply to be an after-the-fact reference source by which to ascertain whether a trial court is satisfied with the guidelines.

Also, when a trial court disregards the guidelines and imposes a sentence which exceeds the presumptive guidelines sentence, it would seem illogical to conclude that the court gave clear and convincing reasons for departing from the guidelines under rule 3.701 d 11. We could not conclude that a court properly departed from the guidelines when the court had nothing under consideration from which to depart. Under those circumstances the purpose of the guidelines — to promote uniformity of sentencing by the trial courts of similarly situated defendants — would be not only not furthered but would be thwarted.

The failure of defendant to make a contemporaneous objection does not preclude appellate review. See State v. Rhoden, 448 So.2d 1013 (Fla.1984); Mitchel v. State, 458 So.2d 10 (Fla. 1st DCA 1984).

We remand for resentencing consistent with this opinion.

OTT, A.C.J.; and DANAHY and LEHAN, JJ., concur.


text:
    Kerry Lemuel DOBY a/k/a Dillar S. Booker, Appellant, v. STATE of Florida, Appellee.
    Nos. 84-498 to 84-500.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We vacate defendant’s sentences imposed at defendant’s probation revocation hearing on three counts of burglary and two counts of grand theft. We remand for resentencing. The trial court did not follow the procedures set forth in the sentencing guidelines. See Fla.R.Crim.P. 3.701 d. The court sentenced the defendant to the maximum sentences without the benefit of a guidelines scoresheet which would have provided a presumptive sentence. The court announced what purported to be reasons for departing from the guidelines. But, not knowing the presumptive sentences under the guidelines, the court was without sufficient information to decide whether to depart from the guidelines. See Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984).

The record is susceptible of an interpretation that the trial court did not inadvertently fail to follow the sentencing guidelines.

Parole is not available to “[a] person convicted of crimes committed on or after October 1, 1983, or any other person sentenced pursuant to sentencing guidelines.” Fla.Stat. 921.001(8). Compare Knight v. State, 455 So.2d 457 (Fla. 1st DCA 1984). Any trial court which might consider disregarding the guidelines and simply sentencing a defendant under preguidelines criteria, while announcing reasons for the sentence which may be sufficient to justify a departure from the guidelines, should bear in mind that due to the absence of parole the defendant’s term of incarceration may well be greater than it would have been prior to the time the guidelines came into effect. The intent of the legislature in authorizing the guidelines and of the supreme court in promulgating them was “to promote uniformity in punishment meted out to those convicted of the same offense, whose prior conviction records and other relevant factors are comparable.” Id. The intent was not to create a device by which an individual trial judge, by disregarding the guidelines, may increase terms of incarceration over terms imposed prior to the time the guidelines came into effect.' If a trial court disregards those concepts and thereby contributes to disparities in sentences and terms of incarceration among similarly situated defendants, the purpose of the guidelines would be defeated and there would be a failure to uphold the law.

We remand for resentencing consistent with this opinion.

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


author: RYDER, Chief Judge.

text:
    Nelson L. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2615.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.
    James Marion Moorman, Public Defender, Bartow and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

Nelson L. Davis was charged with grand theft auto. The court denied his motion to suppress. A jury found Davis guilty as charged. On appeal, Davis argues that the trial court erred by denying his motion to suppress, his motion for mistrial, and when sentencing him.

On March 15, 1983, Det. Benjamin Hol-thusen of the St. Petersburg Police Department was on uniformed patrol in a downtown area of the city. The detective testified that he “checked” the area bars up to three times each evening, and he knew “just about everybody” in the bars by face or name. Holthusen was in one of these bars when he saw Davis, whom he did not recognize. As Davis was leaving the bar, Holthusen asked him for identification. Davis replied that he did not have any. Holthusen then walked back to his cruiser and began to drive off. He then saw Davis and two companions get into a car in front of the bar. Davis got behind the wheel and drove off. At this point, Holthusen became suspicious that Davis was driving without a license because Davis had just stated that he didn’t have any identification. The detective stopped Davis’ car and asked for his driver’s license and vehicle registration. Davis was unable to produce either item or any identification. At that point, Holthu-sen took Davis back to the cruiser with the intention of arresting him for driving without a license. After running several checks on the car which Davis had been driving, Holthusen found that the vehicle had been stolen a few weeks earlier. Davis was arrested for grand theft auto.

During the hearing on the motion tp suppress, Holthusen testified that the reason he initially approached Davis was because he did not know him. Holthusen admitted that, at that time, he did not suspect Davis of being involved in any criminal activity. Holthusen further testified that if Davis had not said he did not have identification, he would not have stopped Davis’ car and subsequently found out it was stolen.

Appellant argues that the detective’s initial questioning of him for identification was not based on any suspicion of criminal activity but was purely arbitrary. In support of this argument, he cites cases in which the Florida Supreme Court has held that a policeman may not stop and question a person on a bare suspicion of illegal activity. Mullins v. State, 366 So.2d 1162 (Fla.1978), on remand, 371 So.2d 1113 (Fla. 3d DCA), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979) (defendant was riding a bicycle slowly through a residential area in the very early morning hours); Wilson v. State, 433 So.2d 1301 (Fla. 2d DCA 1983) (defendant was in a high crime area with a bag under his arm, changed the package from one arm to another after seeing the detectives, changed directions in his walk and went up on a front porch of a house where he did not live).

In Lightbourne v. State, 438 So.2d 380 (Fla.1983), cert. denied, _ U.S. _, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984), the Florida Supreme Court cited Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for the proposition that nothing in the constitution prevents a police officer from addressing questions to anyone on the street. Under such circumstances, the person may refuse to cooperate and go on his way. The court then concluded that there was nothing in the record that indicated Lightb-ourne was not free to express an alternative to go on his way. The court explained that the police need questioning as a tool for effective enforcement of the criminal laws.

In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the Supreme Court wrote “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street ... [and] asking him if he is willing to answer some questions_” 103 S.Ct. at 1324.

In a more recent opinion, I.N.S. v. Delgado, _ U.S. _, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), on remand, 736 F.2d 1340 (9th Cir.1984), the court ruled that a consensual encounter between a police officer and a citizen can be transformed into a Fourth Amendment seizure if, in view of all the surrounding circumstances, a reasonable person believes he is not free to leave. The court wrote that Royer implies that a request for identification by police does not constitute a Fourth Amendment seizure. 104 S.Ct. at 1762. The court further wrote that even though most citizens will respond to a police request without being told they are free not to respond, this does not eliminate the consensual nature of the response. A Fourth Amendment detention results only when the circumstances of the encounter are so intimidating that a reasonable person would have believed he is not free to leave. 104 S.Ct. at 1763.

In the case before us, we have a uniformed police officer who chose to ask appellant for identification only because he did not recognize him. Although the officer admittedly did not have any founded suspicion upon which to approach and question the appellant, both the United States Supreme Court and the Florida Supreme Court have ruled that the mere questioning of an individual does not amount to a Fourth Amendment detention. The appellant truthfully answered the officer’s question, even though he was free to refuse to respond. However, he did respond and then walked away. The information gained was, therefore, not the product of an illegal detention, and could properly be used to provide probable cause for the second stop, which led to the appellant’s arrest and conviction for auto theft.

Appellant’s second point on appeal is that the court should have granted a mistrial because of an allegedly prejudicial remark which a witness made in response to the state’s questioning. The state asked the witness, an investigating officer, whether he saw the appellant in possession of the car. The officer responded: “[w]hen I arrived at the scene, he was already in custody ...I knew the defendant.” (emphasis supplied by appellant). Appellant’s counsel objected to this comment. The trial judge found that because of the ambiguity of the statement and because it conformed to a previous witness’ testimony, the jury would not get the impression that the appellant had a prior criminal history. We agree.

The appellant also argues that the judge erred by departing from the recommended sentencing guidelines range and not attaching a guideline scoresheet as required by Florida Rule of Criminal Procedure 3.701(d). We do not agree. The judge properly declared appellant to be an habitual offender under section 775.084, Florida Statutes (1983), and sentenced him to five years imprisonment. The judge then outlined the same criminal history upon which he had declared appellant to be an habitual offender as the reason for departing from the sentencing guidelines. This was a clear and convincing reason for departing from the guidelines. Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984). Unlike the circumstances in Doby v. State, 461 So.2d 1360 (Fla. 2d DCA 1984), and Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984), the judge had been informed by appellant’s counsel that the presumptive sentence was three years and the guideline range encompassed two and one half to three and one half years. Therefore, the absence of a guideline scoresheet in this record is irrelevant.

Affirmed.

GRIMES and CAMPBELL, JJ., concur.


author: ZEHMER, Judge.

text:
    Kevin HICKEY, Appellant, v. Lola Ann BAXTER, Appellee.
    No. AY-441.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1984.

      Ben R. Patterson, III, Patterson & Traynham, Tallahassee, for appellant.
    Anthony L. Bajoczky and Joseph A. Bu-lone, Barrett & Bajoczky, Tallahassee, for appellee.
   ZEHMER, Judge.

This case involves simultaneous child custody proceedings in Florida and Virginia. Both states have adopted the Uniform Child Custody Jurisdiction Act (UCCJA).

Kevin Hickey, a resident of Virginia, appeals the denial of his motion to vacate the final judgment awarding custody of his two minor children to their mother, Lola Ann Baxter, and ordering him to pay child support, arrearages, attorney’s fees, and court costs. Appellant contends the Florida court is without subject matter jurisdiction or should not have exercised its jurisdiction because Virginia obtained jurisdiction over the custody dispute before proceedings were begun in Florida. We reverse, not for the reasons asserted by appellant, but to obtain the essential information needed to determine that the Virginia court is acting in conformity with the act.

The couple’s two children, born in May 1979 and November 1980, lived in Gadsden County from birth until September 1981, when the family moved to Virginia. Although the couple never married, they had lived together for several years and it is undisputed that Hickey is the father of the children. On June 10, 1983, after living in Virginia approximately one and a half years, the mother returned the children to her home in Florida. She contends that the father ordered her and the children out of the Virginia home. The father contends the children were removed from Virginia by subterfuge — ostensibly for a vacation with their maternal grandparents in Florida.

In September 1983, the father initiated custody proceedings in the Juvenile and Domestic Relations District Court of Fair-fax County, Virginia. The mother became aware of these proceedings and, on November 9, 1983, petitioned the Florida court for an adjudication of paternity, award of support, and custody of the children. On the same day, the mother made an appearance in the Virginia court by filing a motion to dismiss the father’s petition for custody. The motion alleged that (1) the petition failed to state a cause of action and (2) Virginia was an inconvenient forum in which to litigate the custody issue since “the best interests of the children may best be determined by examining the circumstances as they now exist in Gadsden County, Florida, and such determination would best be made by a Florida court.” The mother did not assert lack of jurisdiction in Virginia as a ground for dismissal.

Custody proceedings progressed simultaneously and independently in Florida and Virginia. The father did not appear in the Florida action to contest that proceeding. After submitting to the jurisdiction of the Virginia court, the mother did not further contest the father’s claims in the Virginia action, nor did she timely inform the Florida court of the pendency of the Virginia proceedings. The Florida court entered a default against the father on December 12, 1983, and was apparently unaware of the Virginia proceedings until sometime after December 22, 1983, when the mother filed an affidavit pursuant to section 61.132, Florida Statutes (1983).

Section 61.132 contains explicit requirements:

(1) Every party in a custody proceeding, in his first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child’s present address, the places where the child has lived within the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit, every party shall further declare under oath whether: (a) he has participated as a party or witness or in any other capacity in any other litigation concerning the custody of the same child in this or any other state; (b) he has information of any custody proceeding concerning the child pending in a court of this or any other state; and (c) he knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.

Because the information is necessary for an adjudication of custody, this statute clearly requires each party to provide this information with the petition, whether contested or not, and with the answer thereto. The lower court has an affirmative duty, which was not performed in this case, to determine from the pleadings or examination of the parties whether it should order the joinder of additional parties and whether courts of another state should be contacted in accordance with the provisions of the act. §§ 61.1322 and 61.1324, Fla. Stat. (1983).

In this instance, had the court below been informed of the Virginia proceeding when the petition for custody was filed, the court could have exercised its authority to order the father served with notice, as provided in section 61.1312, requiring him to appear personally, and informing him that failure to appear might result in a decision adverse to him. § 61.1324, Fla.Stat. (1983).

Once a Florida court learns of proceedings in another state involving custody of a child, it should adhere strictly to the provisions in section 61.1314, “to the end that the issues may be litigated in the more appropriate forum.” Among other things, sections 61.1314 and 20-129 of the Virginia Code require that a court: (1) not exercise jurisdiction if, “at the time of the filing of the petition, a proceeding concerning the custody of the child was pending in another state exercising jurisdiction substantially in conformity with this act,” unless that out-of-state proceeding is stayed, or (2) stay the proceedings and communicate with the out-of-state court to determine which is the more appropriate forum to litigate the custody dispute. In deciding which state is the more appropriate forum, a court, either upon its own motion or the motion of a party, must determine whether it is an “inconvenient forum” as defined in sections 61.1316 and 20-130 of the Virginia Code. Communication between the courts involved, Florida and Virginia in this case, is essential to making this determination under the statutes. See Greene v. Greene, 432 So.2d 62 (Fla. 3d DCA 1983).

The clerk of the circuit court is required by section 61.1334 to maintain a registry in which are filed certified copies of custody decrees of other states received for filing, communications as to the pendency of custody proceedings in other states or findings of an inconvenient forum by a court of another state, and any communication or document concerning custody proceedings in another state which may affect the jurisdiction of a court of this state or the disposition to be made by it in a custody proceeding. The record in this case does not reflect any entries in such a registry or any communication between the Florida and Virginia courts.

The Florida court’s failure to require the petitioning mother to file the required affidavit, failure to properly serve the father with the required notice and process, and failure to communicate with the Virginia court once the Florida court had learned of the Virginia proceedings clearly indicate that the Florida court has not substantially complied with the UCCJA requirements. Nevertheless, on January 19, 1983, the Florida court, acting on the default entered against the father, rendered a final judgment declaring Florida to be the “home state” of the children, citing sections 61.-1302-61.1348, inclusive; awarding custody of both children to the mother, with reasonable visitation rights to the father; requiring the father to pay future child support and child support arrearages, and to reimburse the mother for medical and hospital costs incurred incident to the birth of the children; and requiring the father to pay reasonable attorney’s fees and costs of this suit.

On February 22, 1984, the Virginia court entered a final judgment awarding custody of the children to the father, noting that on November 23, 1983, approximately one month before the final custody hearing in the Florida court, the Virginia court had determined that it “has continuing jurisdiction and is the proper forum for this action.” Section 20-129(C) of the Virginia Code (Cum.Supp.1982) provides that if a Virginia court “is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall ... inform the other court to the end that the issues may be litigated in the most appropriate forum.” The record does not reflect that the Virginia court communicated with the Florida court, as required by this section, prior to entering its final judgment, a fact which suggests that the Virginia court, like the Florida court, also may not be exercising jurisdiction substantially in conformity with the provisions of the UCCJA.

Addressing appellant's specific points on appeal, we now determine (1) whether Florida has subject matter jurisdiction of this suit, and (2) whether the Florida court erred in exercising jurisdiction.

Appellant contends that the Florida court does not have subject matter jurisdiction because the pending Virginia proceeding was filed first, citing Greene v. Greene, supra, and Mondy v. Mondy, 428 So.2d 235 (Fla.1983). Although we disagree and hold that the Florida court does have subject matter jurisdiction, we do so for reasons other than those given by the lower court. Section 61.1308 sets forth four situations in which a Florida court has jurisdiction to make a custody determination. Only subsections (l)(a) and (l)(b) are applicable in this case. Subsection (l)(a) provides that the court has jurisdiction to make an initial determination or to modify a previous custody decree where the state is the “home state” of the child at the time proceedings are initiated. Jurisdiction on this basis continues for six months after a child has been removed from the “home state.!’ “Home state” is defined in section 61.1306(5) to mean:

[T]he state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as parent for at least 6 consecutive months or, in the case of a child less than 6 months old, the state in which the child lived from birth with any persons mentioned. Periods of temporary absence ... are counted as part of the 6-month or other period.”

The lower court’s determination that Florida is the “home state” of the parties’ two children is erroneous. The children are older than six months and their nineteen-month residence in Virginia cannot be considered, on the record before us, a period of “temporary absence.” Custody proceedings were initiated in Virginia and Florida less than six months after the children were removed from Virginia. By statutory definition, the “home state” is Virginia, not Florida, and Virginia clearly has jurisdiction. See Bonis v. Bonis, 420 So.2d 104 (Fla. 3d DCA 1982). The six-month provision in section 61.1308(l)(a) protects a parent such as Hickey, whose children have been removed from the home state by the other parent, by insuring that the stay-at-home parent may institute proceedings in his own state rather than being forced to pursue the fleeing parent and the child in another state.

Subsection 61.1308(l)(b) provides that Florida may assert jurisdiction if it is in the best interest of the child because the child and his parents have a “significant connection” with this state and there is available in the state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. Section 61.1308(l)(b) does not require that a child’s only “significant connection” be with the state of Florida in order for jurisdiction of the Florida court to attach; it requires only that the child have a "significant connection” with this state. Hofer v. Agner, 373 So.2d 48, 51 (Fla. 1st DCA 1979). The record indicates that the children are living in Florida where they lived from birth until September 1981, in the geographical area where the mother was raised, and in close proximity to the maternal grandparents, who are contributing substantially to their financial and emotional support. These circumstances constitute a significant connection with Florida and are a sufficient predicate for Florida’s assumption of subject matter jurisdiction under subsection (l)(b). See Reeve v. Reeve, 391 So.2d 789 (Fla. 1st DCA 1980). Cf., Greene v. Greene, supra.

It is readily apparent, therefore, that concurrent jurisdiction exists in Florida and in Virginia under the alternative tests in section 61.1308(l)(a) and (l)(b), Florida Statutes (1983), and section 20-126, Virginia Code, as amended. Section 61.-1304 states, “[T]he general purposes of this act are to ... avoid jurisdictional confrontation and conflict with courts of other states.” While it is possible under the act for several states to have jurisdiction over a custody dispute, the basic premise is that only one court shall assume responsibility to determine custody. Mort v. Mort, 365 So.2d 194 (Fla. 4th DCA 1978). When the courts of more than one state have jurisdiction, priority in time of filing ordinarily controls which state shall proceed with the action so long as the court having such priority is “exercising jurisdiction substantially in conformity with this act.” § 61.-1314(1), Fla.Stat. (1983); Va.Code § 20-129 (Cum.Supp.1982). See Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982). Whether the Florida court erred in exercising jurisdiction in this case depends on whether the Virginia court is exercising its jurisdiction in conformity with the act.

The incomplete record on appeal is not sufficient for us to determine whether Virginia is exercising its jurisdiction “substantially in conformity” with the UCCJA. As previously stated, the omission of any communication between courts suggests the Virginia court is not doing so. But a final determination of this question must be made by the trial court on remand after it communicates with the Virginia court and acquires the pertinent information required by the applicable statutes discussed above. The trial court should consider, among other things, whether the Virginia court has adjudicated the issue of paternity and declared Hickey the father since that declaration is an essential predicate to recognizing Hickey’s custodial rights as the father of these otherwise illegitimate children; whether an appropriate home study has been made in Virginia and Florida pursuant to sections 61.134 and 61.1342, Florida Statutes (1983), and sections 20-142 and 20-143, Virginia Code (Cum.Supp. 1982); and whether the judgment of the Virginia court purports to be based on competent, substantial evidence concerning the minor children’s present and future care, protection, training, and personal relationships in both locations. §§ 61.1308 and 61.1316, Fla.Stat. (1983), and Va. Code §§ 20-126 and 20-130(C) (Cum.Supp.1982).

The lack of communication between the Florida and Virginia courts, the lack of a competent record to support a determination that Virginia is exercising its jurisdiction in compliance with the act and is the more convenient forum, the lack of record support to determine that Florida is the inconvenient forum, and the fact that the Florida court has concurrent jurisdiction with Virginia distinguishes this case from Mondy v. Mondy, 428 So.2d 235, 238 (Fla.1983). In Mondy, the issue was whether Idaho or Florida should exercise jurisdiction in a child custody dispute between the father and mother. The Florida trial court ordered its clerk to request Idaho to forward all documents and other pertinent information in the Idaho court file to the Florida court. The trial court also ordered a home study from the Florida Department of Health and Rehabilitative Services and its corresponding agency in Idaho. The nonresident father appealed an order finding jurisdiction in the Florida court and awarding custody to the mother. The Supreme Court reversed the order and held that the trial court should have refused to exercise jurisdiction because “the Idaho court had already followed the UCCJA in making its determination, presumably in the best interest of these children,” (428 So.2d at 238), and, moreover, that the Florida court did not have jurisdiction under the significant connection test set out in section 61.1308(l)(b). We also note that the mother in Mondy filed a custody action in Florida after she had appeared in the Idaho court, suffered an adverse ruling, and then removed the children to Florida in violation of the Idaho court order. Nothing of that sort has occurred in this case.

If, on remand, the information obtained in compliance with this opinion supports a finding that Virginia is conforming to the provisions of the UCCJA and is the more appropriate forum under the statutory tests, the court below must decline to further exercise its jurisdiction and defer to the Virginia court in accordance with Mondy v. Mondy, supra.

Appellee argues that the judgment below should be affirmed because the UCCJA provisions are more in the nature of venue provisions than jurisdictional requirements, citing Bedingfield v. Bedingfield, supra, and urges that the father has waived his right to raise venue objections in Florida due to his failure to appear in the Florida action. We rfeject this argument for at least two reasons. First, the petitioning mother did not timely advise the court below of the pending Virginia action before the default was taken against the father, and the court did not perform its affirmative duty to require compliance with the provisions of the UCCJA as described herein. Second, this record does not contain proof that the husband was properly served with process and notice to appear in the Florida case in strict compliance with sections 61.131, .1312, and .1324, Florida Statutes (1983). Since it does not appear that the father was made a party in compliance with these statutory requirements, he was under no obligation to appear and defend the Florida action and, therefore, could not be found to have waived the right to make this objection.

This case deals primarily with an initial custody dispute between parents, and the parents’ respective rights must obviously be recognized. It must also be kept in mind, however, that the court’s paramount concern is the best interests of the children — not just the relative rights of the natural parents to custody. As the commissioners’ note to section 3 of the uniform act points out (section 61.1304), “the [best] interests of the children are served when the forum has optimum access to relevant information about the child and family.” Uniform Child Custody Jurisdiction Act, § 3, Commissioners’ Note, 9 U.L.A. at 124 (1979).

The final judgment is reversed, and the case is remanded for further proceedings on an expedited basis. The court below may continue the existing custody arrangements in effect for a reasonable time to acquire the information from the Virginia court necessary to make the determinations required by this opinion.

REVERSED and REMANDED.

ERVIN, C.J., and MILLS, J., concur.

      . The UCCJA became effective in Florida on October 1, 1977, and is found in sections 61.-1302 through 61.1348, Florida Statutes (1983). The act became effective in Virginia on January 1, 1980, and is found in sections 20-125 through 20-146, Virginia Code (Cum.Supp.1982).

      . Provisions corresponding to section 61.132 are found in sections 20-132, Virginia Code (Cum. Supp.1982).

      . Provisions corresponding to section 61.1322 are found in section 20-133, Virginia Code (Cum.Supp.1982).

      . Provisions corresponding to section 61.1324 are found in section 20-134, Virginia Code (Cum.Supp.1982).

      . Provisions substantially similar to section 61.-1312 are found in section 20-128, Virginia Code (Cum.Supp.1982).

      . Provisions substantially similar to section 61.-1324 are found in section 20-134, Virginia Code (Cum.Supp.1982). Section 61.1324(3), Florida Statutes (1983), and section 20-134(C), Virginia Code (Cum.Supp.1982), provide authority for allocating expenses of travel to the court that may be close to one of the parties and distant from another. The court may equalize the expense where appropriate under the circumstances. Uniform Child Custody Jurisdiction Act, § 11, Commissioners' Note, 9 U.L.A., at 148 (1979).

      . Similar provisions to section 61.1314 are found in section 20-129, Virginia Code (Cum. Supp.1982).

      . The Greene case involved a jurisdictional dispute between a Florida and a Virginia court; the Virginia court, in obvious compliance with the UCJJA, directed its clerk to communicate with the circuit court in Florida, confirm the Virginia court’s jurisdiction over the custody issue, and "respectfully request that the Florida court refrain from exercising jurisdiction over the same cause.” 432 So.2d at 63.

      . Provisions corresponding to section 61.1334 are found in section 20-139, Virginia Code (Cum.Supp.1982).

      . Section 20-126, Virginia Code (Cum.Supp. 1982), is comparable to section 61.1308.

      . Section 20-125(5), Virginia Code (Cum.Supp. 1982), is comparable to section 61.1306(5).

      . Section 20-126(1), Virginia Code (Cum.Supp. 1982), is comparable to section 61.1308(l)(a).

      . Frumkes & Elser, "Uniform Child Custody Jurisdiction, The Florida Experience,” Florida Bar Journal, December 1979, at 686.

      . Section 20-126(2), Virginia Code (Cum.Supp. 1982), is comparable to section 61.1308(l)(b).

      . Appellant’s reliance on Greene v. Greene, supra, for a contrary conclusion is misplaced. The court in Greene found that Florida lacked subject matter jurisdiction because “there is a glaring dearth of evidence that the child and the parents have any significant connection with the state.” 432 So.2d at 64.

      . If the Virginia court has not adjudicated the paternity issue, that court may well lack jurisdiction to award custody of the children to the father because his status as father has not been legally established, except by the Florida judgment appealed in this case. This issue has not been argued, and we cannot reach and decide it on the record before us.

      . Section 61.134, Florida Statutes (1983), provides:
      Hearings and studies in another state; orders to appear. (1) A court of this state may request the appropriate court of another state to hold a hearing to adduce evidence, to order a party to produce or give evidence under the procedures of that state, or to have social studies made with respect to the custody of a child involved in proceedings pending in the court of this state; and to forward to the court of this state certified copies of the transcript of the record of the hearing, the evidence otherwise adduced, or any social studies prepared in compliance with the request.
      Section 20-143 of the Virginia Code, as amended, contains similar provisions.


author: DELL, Judge. GLICKSTEIN, Judge,

text:
    Edward Joiner KING, Appellant, v. STATE of Florida, Appellee.
    No. 83-725.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Edward Joiner King appeals from his conviction of trafficking in cocaine and conspiracy to traffic.

We have considered each of the seven points raised by appellant. Only one point demonstrates reversible error. That point concerns the trial judge’s implementation of a procedure which restricted appellant’s right to backstrike jurors during voir dire. The following colloquy occurred between the court and counsel before voir dire began:

THE COURT: Let’s do this, the way we will handle this trial, the Court will question the jurors. The State will then question, Defense will question and then as to those not challenged we will go ahead and swear them in pursuant to 3.310 which states the State or Defendant may challenge individual prospective jurors before the jury is sworn to try the cause. I will go ahead and swear them in and ship them out to the jury room and continue with the process.
MR. BROUDY: I object, Judge ... by swearing them in doesn’t allow us to back strike.
THE COURT: I don’t like that word. I don’t know what it means, frankly. Pursuant to 3.310, I think it’s within the Court’s discretion to do so.
MR. GRUSKIN: I will object to the Court’s procedure. I think it’s precluding back striking....
THE COURT: That is the way the Court will do it. Your objections are noted for the purpose of the record. The Court will state it is following 3.310.

During voir dire, the trial- court denied appellant’s motion to exercise a remaining peremptory challenge to backstrike a previously sworn juror. Appellant has adequately demonstrated that the procedure adopted by the trial court interfered with his right to exercise peremptory challenges.

The appellate courts of this state have consistently interpreted both Florida Rule of Civil Procedure 1.431 and Florida Rule of Criminal Procedure 3.310 to protect the right of the litigant to backstrike at any time before a juror is sworn. See Matthews v. State, 451 So.2d 973 (Fla. 4th DCA 1984); Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 So.2d 630 (Fla. 5th DCA 1981); Jones v. State, 332 So.2d 615 (Fla.1976); Knee v. State, 294 So.2d 411 (Fla. 4th DCA 1974). The right to backstrike must be reconciled with the supreme court’s statement in Mathis v. State, 45 Fla. 46, 34 So. 287 (1903) that the time for swearing of jurors is in the sound discretion of the trial judge. Notwithstanding the broad discretion the trial judge has in the timing and manner of swearing in a juror, the exercise of that discretion is subject to review.

We said in Grant v. State, 429 So.2d 758, 760 (Fla. 4th DCA 1983), petition for review denied, 440 So.2d 352 (Fla.1983) that

A lawyer charged with the duty of selecting a jury panel should not be deprived of the opportunity to exercise such peremptory challenges and such challenges for cause which he may have in order to provide him with the greatest opportunity to have a fair and impartial trial by a jury of his peers.

Judge Hurley, in his special concurrence summarizes what appears to be the underlying basis for each of the many appellate decisions which have without hesitation held that a litigant has the right to exercise his peremptory challenges at any time until the jury is sworn.

The right to the unfettered exercise of peremptory challenges — which, I believe, includes the right to view the panel as a whole before the jury is sworn — is an essential component of the right to trial by jury, a right that “is fundamental to the American scheme of justice.” Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968).

Grant, 429 So.2d at 760-61.

In Grant v. State, we stated, albeit in dicta, “the trial judge erred when he prohibited backstriking and immediately administered the jurors’ oath for the sole purpose of preventing strikebacks.” Id. at 760. We recognize that trial judges today face a large volume of cases and that the procedure implemented by the trial judge sub judice may speed the voir dire process. However, we do not believe that expediency should form the, basis of a procedure which effectively deprives a litigant from selecting a jury panel as a whole and deprives him of the free exercise of his peremptory challenges.

With the issue now squarely before us, we hold that the procedure adopted by the trial judge unreasonably restricted appellant’s right to exercise peremptory challenges as provided in Rule 3.310 and constituted an abuse of discretion which requires reversal. Therefore we reverse and remand this cause for a new trial.

REVERSED and REMANDED.

HERSEY, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting.

The fact that we as a court or as individuals do not like a particular activity is not a sufficient basis for reversal. In every case in which we reverse a trial judge, we must have a reason for it: some basis in the federal or state constitution, a state statute, or a rule of court or procedure.

Taking the last first, there is clearly no formal rule of procedure which would require a trial judge to allow backstrikes. The closest rule is Florida Rule of Criminal Procedure 3.310, which requires unfettered peremptory challenge prior to swearing in a jury. Because the challenges here were sought after jurors were sworn this rule is not implicated, as distinguished from our recent opinion in Matthews v. State, 451 So.2d 973 (Fla. 4th DCA 1984).

The majority relies on our opinion in Grant v. State, 429 So.2d 758 (Fla. 4th DCA 1983), which said in dicta that the trial judge erred in utilizing a procedure calculated to prevent backstriking. Grant relied in turn upon Denham v. State, 421 So.2d 1082 (Fla. 4th DCA 1982), which contained the completely gratuitous statement that backstriking should not be prohibited by the trial court. In neither Grant nor Denham was any authority cited for these statements, and current reliance on them imbues the statements with the status of court-made rules of procedure. I must respectfully suggest that we have no authority whatsoever to create a rule of procedure. The Florida Constitution has delegated that authority to the Florida Supreme Court in Article V, section 2(a). Had our Supreme Court adopted such a rule, we would justifiably reverse.

Nor may reversal be predicated upon the basis of a state or federal statute, for none impacts on the issue in question. The only other possible ground for argument is that preclusion of backstriking embarrasses the right guaranteed by the United States Constitution to unrestrained selection of the jurors who will try one’s case. In St. Clair v. United States, 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936 (1894), however, the nation’s highest court held constitutional a similar, former California practice in which the jurors were sworn in a piecemeal fashion, precluding the defendant from viewing them as a panel. Although old, St. Clair is still whole and is therefore binding on us with respect to the United States Constitution.

In short, we had no authority in Grant and Denham to hold this procedure erroneous, and an opinion basing itself on these two decisions only compounds their error. Those on the appellate bench who decry the procedure used here should suggest that the Florida Supreme Court remedy the problem in its next promulgation of Florida Rules of Procedure and should not attempt an unconstitutional usurpation of that court’s rule-making authority.


author: DELL, Judge. GLICKSTEIN, J.,

text:
    Salvatore MOTISI, Appellant, v. STATE of Florida, Appellee.
    No. 83-723.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Stephen H. Broudy, Law Offices of Stephen H. Broudy, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

We reverse and remand for a new trial on the authority of King v. State, 461 So.2d 1370 (Fla. 4th DCA 1985), issued simultaneously with this opinion.

REVERSED and REMANDED.

HERSEY, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, J.,

dissenting.

I dissent because we are not granted the authority to make rules of procedure, as more fully expressed in the companion case of King v. State, 461 So.2d 1370 (Fla. 4th DCA 1985).


author: PER CURIAM. HURLEY, Judge,

text:
    Roy Thomas DEROCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-1342.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Rehearing Denied Feb. 6, 1985.
    Richard L. Jorandby, Public Defender, and Lorrie Robinson, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ„ concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

When the defendant, Roy DeRock, appeared before the court for arraignment on charges of kidnapping and sexual battery, he elected to stand mute. Therefore, in accord with Rule 3.170(c), Fla.R.Crim.P., the trial court entered a plea of not guilty on behalf of the defendant. At the same time, the clerk stamped the back of the information so that the following printed line: “To the within Information, Defendant pleaded ...,” was completed with this notation: “Stood mute in open Court. Not Guilty plea entered by court.”

At the conclusion of the trial, when both sides had rested, the court engaged in a brief discussion with counsel and asked them to confer to see if they could reach agreement on requested jury instructions. It is apparent from the record that all of the parties anticipated that the trial court would exercise its discretion under Rule 3.400(a), Fla.R.Crim.P., and permit the jury to take a copy of the information into the jury room during deliberations. Therefore, counsel for Mr. DeRock requested that the court “white-out” the back of the information which indicated that the defendant had stood mute at arraignment. Counsel asserted that this statement could be interpreted by the jury as a comment on the defendant’s exercise of his constitutional right to remain silent. The trial court denied the request out-of-hand. Due to the brevity of the exchange, the record is not as clear as it could be, but the prosecuting attorney seems to have allied himself with the defense request for, after the court’s ruling, the prosecutor stated, “Note any objection. The court note my objection at this time?” To which the court responded, “Yes,” and declared the. lunch recess.

The parties to this appeal agree that the information containing the clerk’s stamped notation went back to the jury. The record reveals that the trial court did not instruct the jury on the defendant’s right to stand mute at arraignment. The court, however, did instruct on the right of Mr. DeRock’s co-defendant to remain silent and not testify at trial. This instruction was not made applicable to Mr. DeRock because he had testified at trial.

I submit that by permitting the jury to view the clerk’s stamped notation, the trial court sanctioned an impermissible written comment on the defendant’s exercise of his constitutional right to remain silent. The jury was informed that the defendant, when confronted by judicial authority, refused to admit or deny his guilt. I cannot conceive how one could argue that the Fifth Amendment is not operative at arraignment, a critical stage in the trial. Thus, I respectfully suggest that the record demonstrates a clear violation of the defendant’s constitutional rights. “[I]t is a fundamental principle of our constitutional law that a defendant cannot be penalized for exercising his fifth amendment privilege to refuse to communicate to the authorities....” State v. Burwick, 442 So.2d 944, 947 (Fla.1983). “The reason for the rule holding inadmissible at trial evidence of the post-arrest silence ... is that the evidence creates an inference that the defendant is guilty .... ” Ibid.

Having said this, I should further note that I would join my colleagues and vote to affirm the defendant’s conviction if Florida permitted the harmless error rule to apply to errors of this nature. The evidence of the defendant’s guilt is overwhelming and, therefore, I would be prepared to find that the constitutional error is harmless beyond a reasonable doubt. However, my understanding of the state of the law is that the court is not free to utilize the harmless error rule. See Marshall v. State, _ So.2d _ (Fla. 4th DCA Dec. 28, 1984). Consequently, I must respectfully dissent.

      . Rule 3.170(c), Fla.R.Crim.P., provides that "[i]f a defendant stands mute, or pleads evasively, a plea of not guilty shall be entered.”

      . Rule 3.400(a), Fla.R.Crim.P., provides that “[t]he court may permit the jury, upon retiring for deliberation, to take to the jury room a copy of the charges against the defendant.”


text:
    Samuel Claude SELIG, Jr., Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 83-1467.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Richard L. Jorandby, Public Defender, and Lorrie Robinson, Asst. Public Defender, West Palm Beach, for appellant, cross-appellee.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee, cross-appellant.
   PER CURIAM.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.

' HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring.

I have dissented from this court’s affirmance of Mr. Selig’s co-defendant’s conviction. See DeRock v. State, 461 So.2d 1373, (Fla. 4th DCA 1985). However, I concur in the decision to affirm Mr. Selig’s conviction because I am satisfied that his attorney failed to enter a timely objection to an impermissible comment on the defendant’s exercise of his right to remain silent. Counsel’s catch-all effort to join in the objections to instructions made by co-defendant’s counsel during the charge conference was neither specific nor broad enough to encompass an objection made by co-defendant’s counsel prior to the charge conference. Indeed, co-defendant’s counsel made his objection prior to the luncheon recess. The charge conference began after lunch and defense counsel’s effort to join in came at the end of the charge conference. It was too little, too late. Since the error is constitutional but not fundamental, I concur in the decision to affirm.


author: HERSEY, Judge.

text:
    Alfreddie GRANT, Petitioner, v. Ron JONES, Superintendent, G.C.I., and Florida Parole and Probation Commission, Respondents.
    No. 84-2360.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.

      Alfreddie Grant, Belle Glade, petitioner, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst..Atty. Gen., West Palm Beach, for respondents.
   HERSEY, Judge.

Alfreddie Grant petitions this court for issuance of a writ of habeas corpus to review the revocation of his parole by respondent Florida Parole and Probation Commission.

Petitioner was charged with violating condition ten of his probation, which stated that he must comply with all instructions given him by his parole supervisor, when, on March 28, 1984, he failed to immediately report to his supervisor upon her instruction to do so. On that date, petitioner had a domestic quarrel with his wife, following which petitioner’s parole supervisor spoke with petitioner on the telephone and requested that he immediately come to her office. Petitioner did not comply with the request, because he was on medication at the time and was unable to drive.

Petitioner’s parole supervisor, after waiting a reasonable time, went to petitioner’s home to ascertain why her summons had been ignored. She became satisfied with petitioner’s explanation and recommended against revocation of his parole. Petitioner’s version of the facts is uncontradicted. The violation was both insubstantial and unintentional.

Petitioner’s parole should not have been revoked absent evidence that he willfully violated a condition of parole. Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980); Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978). In Shaw, the appellant failed to timely submit a report to the probation office because he lacked transportation. The appellate court found insufficient evidence to support a finding that such violation of parole was willful. A similar situation is presented in the instant case, where petitioner was unable to drive and was forced to rely on other means of transportation. There is no showing that he willfully violated a condition of his parole.

We therefore grant the petition for writ of habeas corpus and direct that petitioner be released from custody within a short time upon such reasonable conditions as may be imposed by the Commission.

GRANT THE PETITION FOR WRIT OF HABEAS CORPUS.

ANSTEAD, C.J., and LETTS, J., concur.


author: SMITH, Judge.

text:
    Michael Clifford WILKERSON, Appellant, v. STATE of Florida, Appellee.
    No. AU-447.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1985.

      Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Wilkerson appeals his convictions for burglary while armed and grand theft of a firearm, as charged, urging that the trial court abused its discretion in excluding the testimony of two of his defense witnesses whose names had been tardily supplied to the state after docket sounding. We agree and reverse.

A gun was stolen from the home of John Bradley on February 7, 1983, between the hours of 4:00 P.M. and 8:00 P.M. Later that evening, appellant sold a gun to Daryl Mathis for $100. Mathis became concerned that the gun might be stolen property and called the sheriff’s office. The gun was identified as the one stolen from Bradley’s home.

The dates on which certain pretrial events occurred are significant. Appellant moved for discovery, the state responded on April 29,1983, and on the same date, the state made a reciprocal demand for discovery. Appellant did not provide the state with a reciprocal witness list within seven days after receipt of the state’s witness list as is required by Rule 3.220(b)(3), Florida Rules of Criminal Procedure. The docket was sounded on June 13, 1983, and trial was set for June 30, 1983. Appellant’s counsel served his witness list containing the names and addresses of the excluded witnesses, on June 16, 1983, and filed the list with the clerk on June 17, 1983, nearly two weeks before the scheduled trial date.

On June 16, 1983, defense counsel interviewed appellant’s brother and sister-in-law, David and Cindy Wilkerson. The state had been notified that David and Cindy would be present in defense counsel’s office and available for interrogation or deposition on June 16. The state took no action pursuant to this notification. On June 17, 1983, appellant filed his reciprocal response to discovery listing David and Cindy as defense witnesses, as well as John Sheppard. However, in a telephone conversation, on or about June 16 or 17, defense counsel told the assistant state attorney that he “probably” would not be calling David and Cindy to testify at the trial. On June 21, 1983, appellant filed a supplemental response to discovery listing Andy Wilkerson, another brother, as a defense witness.

Appellant’s defense was that he had gotten the gun from John Sheppard and that he sold it to Mathis for Sheppard. After the state rested, defense counsel indicated his intention to call David and Cindy Wilkerson as witnesses. The assistant state attorney objected on the grounds that he had been told that these witnesses would not be called and therefore he had not deposed them. Defense counsel responded that he had listed the two as witnesses in his reciprocal response to discovery and that he had made them available to the state for deposition. He admitted that he had told the assistant state attorney that he “probably” would not call them, but stated he changed his mind the morning of the trial when he determined David would be a partial alibi witness since he had worked with appellant all day on February 7, and was with appellant until about 6:00 or 6:30 P.M. that evening. Moreover, defense counsel also proffered testimony from the two that appellant was at home with them on the evening of February 7, when John Sheppard came to the house and asked appellant if appellant knew where he could get rid of a gun, after which appellant and Sheppard left the house. The court refused to permit David and Cindy’s testimony because appellant’s reciprocal response to discovery, filed after docket sounding, was untimely and on the further ground that the testimony was irrelevant.

Andy Wilkerson was permitted to testify. He stated that he was at his girl friend’s house at approximately 7:00 or 8:00 P.M. the evening of February 7, 1983, when appellant and Shepard came by. Sheppard inquired if Andy knew where he could get rid of a gun. Andy told Sheppard “no,” and Sheppard then asked Andy to drive him and appellant to Daryl Mathis’ house. When they got there, appellant sold the gun to Mathis.

On rebuttal, the state called Sheppard as a witness over defense counsel’s objection that Sheppard had not been listed on the state’s response to discovery. After an inquiry, the trial court permitted Sheppard to testify, ruling that since Sheppard had been listed as a defense witness there was no surprise to the defense, and therefore prejudice had not been shown. Sheppard testified that he knew the appellant, but he denied approaching appellant on February 7 concerning the sale of a gun. The jury returned a verdict finding appellant guilty as charged.

Initially, appellant complains that the trial court failed to conduct an adequate “Richardson” inquiry into the reasons for his untimely response to the state’s demand for discovery and the resulting prejudice to the state or lack thereof. Richardson v. State, 246 So.2d 771 (Fla.1971). However, our examination of the record reveals that the trial court did conduct an inquiry into whether the failure to comply with Rule 3.220(b)(4) was willful, negligent or inadvertent; whether the violation was trivial or substantial; and whether there was prejudice to the state as a result of the violation. The court’s failure to call the inquiry a “Richardson ” hearing or to make formal findings concerning each of the pertinent Richardson considerations does not constitute reversible error. Baker v. State, 438 So.2d 905 (Fla. 2d DCA 1983); and Ansley v. State, 302 So.2d 797 (Fla. 1st DCA 1974).

Next, we address the question of whether the trial court abused its discretion in imposing the extreme sanction of exclusion of David and Andy’s testimony on the grounds that the State was prejudiced by appellant’s response to discovery after docket sounding.

We recognize that a ruling on whether a discovery violation calls for the exclusion of testimony is discretionary, and should not be disturbed on appeal unless an abuse is clearly shown. Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976). However, it is also true that exclusion is an extreme remedy which should be invoked only under the most compelling circumstances. Williams v. State, 264 So.2d 106 (Fla. 4th DCA 1972). As recently stated by this court, in Austin v. State, 461 So.2d 1380 (Fla. 1st DCA 1984): “[T]he severe sanction of witness exclusion for failure to timely comply with the rules of procedure should be a last resort and reserved for extreme or aggravated circumstances, ...” See, also, Fedd v. State, 461 So.2d 1384 (Fla. 1st DCA 1984); Johnson v. State, 461 So.2d 1385 (Fla. 1st DCA 1984). Relevant evidence should not be excluded from the jury unless no other remedy suffices, and it is incumbent upon the trial court to conduct an adequate inquiry to determine whether other reasonable alternatives can be employed to overcome or mitigate any possible prejudice. Austin, Fedd, Johnson, supra; Jones v. State, 360 So.2d 1293, 1297 (Fla. 3d DCA 1978).

In this case, the trial court did not adequately explore other avenues to rectify the prejudice to the state, such as ordering a recess or continuance, although specifically requested by the defense. The assistant state attorney’s argument that a recess to enable him to depose the witnesses would not solve the prejudice since he would still be deprived of the possibility of obtaining impeachment evidence concerning David and Cindy is unavailing since this is always the case when one whose name was not on the witness list is permitted to testify. Baker v. State, 438 So.2d at 906.

We have no doubt that the testimony of David and Cindy was relevant to appellant’s defense since their testimony would have corroborated appellant’s testimony that it was Sheppard who approached appellant with a gun in an effort to obtain a buyer, and that appellant merely negotiated the sale of the gun to Mathis since Sheppard did not know Mathis well. Appellant, who was charged with a serious crime and is subject to the loss of his personal liberty, is entitled to produce evidence material to his case.

We emphasize here that the trial court’s exclusion ruling was not accomplished by a finding of prejudice to the state’s ability to prepare for trial. Further, the record affirmatively discloses that any detriment to the state was at least in part self-inflicted, since the two witnesses were disclosed, and the state simply chose not to depose or even interview them, even after notice of their availability for that purpose was given by defense counsel. The fact that defense counsel later stated his intention not to call these witnesses may indeed have influenced the state’s choice in this instance, but it did not preclude the state, from exercising the option to depose them if desired. The state’s approach to the matter is further indicated by the state’s refusal to cross-examine the witnesses during the proffer of their testimony.

We note also that the state does not contend, and we find no suggestion in the record, that pretrial knowledge that the excluded witnesses would be called by the defense would have changed the prosecution’s case against appellant. Their testimony would not have altered the nature of appellant’s defense — that John Sheppard brought the gun to him and asked his assistance in selling it. The state was already aware of this defense through its own witnesses, Deputy Sheriff Don Denton and John Sheppard himself, who was called in rebuttal by the state.

Given all the facts and circumstances in this case, we conclude that the trial court abused its discretion in imposing the extreme sanction of the exclusion of David and Cindy’s testimony. Moreover, we find that this error was not harmless since it is possible that the testimony of appellant’s witnesses could have produced a reasonable doubt in the minds of the jurors sufficient to tip the scales in favor of acquittal.

Finally, we find no error in the trial court’s ruling permitting John Sheppard to testify over appellant’s objection that his name was not listed on the state’s response to discovery. See generally, Holman v. State, 347 So.2d 832 (Fla. 3d DCA 1977); Mobley v. State, supra; Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970); and Buttler v. State, 238 So.2d 313 (Fla. 3d DCA 1970).

REVERSED and REMANDED. for new trial.

MILLS and NIMMONS, JJ., concur.

      . We are not concerned with a violation of Rule 3.200, Florida Rules of Criminal Procedure, which requires notice of intent to use alibi witnesses, because the prosecution did not make a written demand upon the defense requesting this information.