author: NIMMONS, Judge.

text:
    Bobby Joe QUALLS, as Personal Representative of the Estate of Danny Qualls, Appellant, v. William A. STANCATO and Nationwide Mutual Fire Insurance Company, Appellees.
    No. AV-315.
    District Court of Appeal of Florida, First District.
    May 15, 1984.

      Hugh A. Richeson, Jr., Palm Harbour, for appellant.
    Carle A. Felton, Jr., of Boyd, Jenerette, Staas, Joos, Williams & Felton, Jacksonville, for appellees.
   NIMMONS, Judge.

Appellant, the personal representative of the Estate of Danny Qualls, appeals from an order of the trial court granting a new trial. We affirm.

This is a personal injury suit brought by Danny Qualls against William Stancato and Nationwide Mutual Fire Insurance Company for injuries which he received in a shooting incident wherein he was shot in the head by Stancato during an incident which occurred in front of the home of Mr. and Mrs. Tony Poulin. Qualls had given Poulin a ride home from a tavern one morning shortly after midnight for which Poulin had agreed to pay Qualls $15. Qualls waited in his ear while Poulin entered his house to get the $15. Instead, Poulin, apparently exhausted from the night’s activities, told his wife to pay Qualls and then promptly went to bed. Poulin slept through the ensuing events. When Qualls began knocking on Poulin’s front door, Mrs. Poulin became frightened and telephoned her neighbor, Stancato. She told Stancato that a man was breaking down her door. Stan-cato told her to call the police and that he would be right over. He armed himself with a .38 caliber revolver, proceeded to the Poulin home and confronted Qualls, who refused Poulin’s demands that Qualls leave. Qualls testified that he remembered nothing about the confrontation with Stancato except Stancato’s approaching him and telling him that he had better leave and Quail’s response that he was about to leave. He remembered nothing thereafter nor did he remember anything about a gun or any threats.

Stancato testified that after Qualls refused to leave, he decided to go into the house to wait with Mrs. Poulin for the police to arrive. As Stancato went to open the door, he placed his hand on his gun, which was situated on his hip, in order to protect it. He said that Qualls ■ lunged at him and placed his hand on Stancato’s hand which was on the gun. As they struggled, Qualls slipped, pulling Stancato’s hand down and causing the gun to discharge by reason of the force of Qualls’ hand on Stancato’s hand.

Mrs. Poulin testified that she was looking through the peephole in her front door when she saw Stancato walk up and order Qualls off the premises. She said that she saw Qualls lunge at Stancato, at which time she saw Stancato holding a gun up in the air. She then moved away from the door and saw nothing further of the altercation. There were no other witnesses to the incident.

The jury returned a verdict finding Stan-cato 70% negligent, Qualls 30% negligent, and total damages to Qualls in the sum of $40,000. The order granting the defendants’ motion for new trial recited what the court regarded as the uncontroverted facts in the case which facts are essentially as summarized above. The order found that the defendants were entitled to a new trial basically because of (1) improper and prejudicial conduct by plaintiff’s counsel in the examination of various witnesses which had the effect of suggesting matters extraneous to the record and which may have improperly influenced the jury; (2) certain questions raised by the jury concerning the role of the defendant, Nationwide Mutual Fire Insurance Company, in the case; and (3) excessiveness of the verdict. We affirm the order for new trial on the first ground.

Throughout the trial, plaintiff’s counsel on several occasions, through patently improper questions and comments, implied that Mrs. Poulin had made several pretrial statements inconsistent with her testimony at trial. Plaintiff’s counsel was apparently attempting to show that Stancato had removed his gun prior to Qualls’ lunging at Stancato and that Stancato’s conduct in this regard provoked a reasonable defensive action by Qualls. Stancato’s testimony directly refuted that scenario. Although Mrs. Poulin’s testimony agreed in most respects with that of Stancato, she did testify that when Qualls lunged at Stancato, she saw Stancato holding the gun up in the air. Plaintiff’s counsel, who called Mrs. Poulin as a witness, was unable to elicit from her any stronger testimony which would demonstrate threatening or provocative conduct on the part of Stanca-to. Counsel, instead, improperly, and in spite of repeated admonitions by the trial court, pressed the inference that Mrs. Pou-lin had made previous statements favorable to the plaintiff regarding the manner in which the shooting occurred. We summarize counsel’s numerous efforts to elicit inadmissible evidence, the cumulative effect of which was prejudicial to the defendants.

Plaintiff’s counsel asked his first witness, Stancato, what Mrs. Poulin told Stan-cato she was doing at the time of the incident. Defense counsel’s hearsay objection was, of course, sustained. Plaintiff’s next witness was Mrs. Poulin. During her testimony describing what she had seen during the altercation, the following occurred:

“Q Did you ever say—
MR. FELTON: I’m going to object. This sounds like he is leading to impeachment of his witness.
MR. RICHESON: That’s exactly right. I’m entitled to — ”

During arguments on the objection outside the jury’s presence, the trial judge pointed out to plaintiff’s counsel that he obviously could not attempt to impeach Mrs. Poulin, his own witness, as counsel had not even attempted to lay any predicate which would allow him so to do. Moreover, counsel, during this colloquy with the court, was unable to show any reason why an exception should be made.

During his direct examination of Mr. Poulin, plaintiff’s counsel asked him what Mrs. Poulin had told him about the shooting. Defense counsel interposed an objection to which plaintiff’s counsel responded that he was “just trying to get the facts out.” Notwithstanding the court’s sustaining the objection, plaintiff’s counsel persisted:

“Q Okay. Did your wife tell you what she saw?
A Yes.
Q What did your wife tell you?”

The trial judge again sustained defense counsel’s objection and admonished plaintiff’s counsel to avoid further efforts in attempting to elicit such obviously inadmissible testimony.

The next similar incident occurred during the direct examination by plaintiff’s counsel of deputy sheriff Van Dyke who investigated the incident. Plaintiff’s counsel asked Van Dyke whether he had interviewed Mrs. Poulin. After responding that he had, the following occurred:

“Q What did Mrs. Poulin tell you?
MR. FELTON: Your honor, again we have certain rules of court, and Mr. Richeson continues to try to abuse those rules. He keeps asking for hearsay statements that he knows are not admissible and I object to them.
MR. RICHESON: Your honor, I’m not trying to abuse any rules of evidence. I’m just trying to ask the officer to tell me what his investigation revealed.
THE COURT: By asking him to tell you what a third party said, does that violate the hearsay rule?
MR. RICHESON: May I rephrase my question?
THE COURT: I asked: Does it violate the hearsay rule?
MR. RICHESON: I don’t believe so.
THE COURT: I do and I’ve so ruled.
MR. RICHESON: Okay. May I ask him—
THE COURT: Ask him anything you want, sir.
BY MR. RICHESON:
Q Okay. Mr. Van Dyke, did you talk to anyone at the scene?
A I talked to Mrs. Poulin.
Q What did Mrs. Poulin tell you?
MR. FELTON: Your honor, that’s the same question. This is getting abusive.
THE COURT: Bailiff, take the jury to the jury room, please.”

While the jury was out, the trial judge, who by now was entitled to feel a degree of exasperation, attempted to determine from plaintiff’s counsel how he could conceivably think that the testimony he persistently sought to elicit was admissible. Counsel gave the remarkable response that he considered the testimony admissible under the theory that the officer was refreshing his recollection by referring to his investigative report which apparently included statements made to him by Mrs. Poulin. Of course, as the trial judge pointed out to plaintiff’s counsel, the obviously hearsay statements of Mrs. Poulin were not rendered admissible even if the officer had been using his report to refresh his recollection. The judge also properly observed that no predicate had been laid by plaintiffs counsel for the officer’s use of the report to refresh his recollection. That is, neither counsel nor the witness had said anything about a need of the officer to have his recollection refreshed, either by reference to his offense report or otherwise. The trial judge sustained the objection but denied the defendant’s motion for mistrial.

The trial judge acted properly in granting a new trial based upon the conduct of counsel in improperly and repeatedly attempting to elicit inadmissible evidence. A motion for new trial is addressed to the sound discretion of the trial judge and will not be disturbed absent a clear showing of abuse of discretion. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Mead v. Bentley, 61 So.2d 428 (Fla.1952). If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981). The assertion that plaintiff’s counsel (by virtue, we add, of the vigilance of defense counsel and the trial judge) was never permitted to actually elicit from any of the witnesses the inadmissible testimony which he so ardently and persistently pursued is unavailing where it can fairly be inferred that the jury was improperly influenced by the conduct of counsel in his efforts to elicit such testimony notwithstanding the court’s rulings and admonitions. See Ridarsick v. Amirkanian, 147 So.2d 580 (Fla. 3rd DCA 1963); 38 Fla.Jur.2d New Trial § 26.

Although we find that the trial court was justified in ordering a new trial on the basis discussed above, we do not agree with the court’s second and third grounds which he articulated in his order. The second ground had to do with certain questions which the jury asked regarding the role in the case of the defendant, Nationwide Mutual Fire Insurance Company. After the jury had deliberated for approximately 25 minutes, the jurors sent the trial judge a written question: “On whose behalf is Nationwide Insurance Company representation?” The judge informed them, “I really don’t know what [your question] means, but all I can tell you is William Stancato and Nationwide Insurance Company, I think is the real name of it, are both defendants.” The jury then retired for further deliberations. Approximately 15 minutes later, the judge answered a second question regarding that same subject: “The second question you propounded to me is irrelevant and immaterial at (sic) the issue that you have to decide. But to answer your question, ‘Whose property does Nationwide cover?’ the answer is Stancato, but it’s immaterial and irrelevant at (sic) issues that you have to decide.” No objection was raised as to the manner in which the judge responded to the questions and the jury retired to the jury room to further deliberate. Thirty-five minutes later, the jury returned its verdict.

In his order granting a new trial, the trial judge observed that it was apparent from the jurors’ questions and from the excessiveness of the verdict that the jury was influenced by the existence of insurance coverage. The amount of the verdict was not such as would support an order granting a new trial. With respect to the jurors’ questions regarding the status of Nationwide in the case, the jurors’ questions reflected a conscientious effort on their part to fully understand what their responsibility was with respect to that entity. Nationwide appeared on the verdict form in the style of the case as a party defendant. Although the judge mentioned Nationwide as well as the other parties during his jury instructions and although Nationwide appeared on the verdict form, there was no way for the jury to know what, if anything, was expected of them by reason of the existence of Nationwide as a party defendant. And so to suggest that the jury’s questions indicated an improper concern about insurance is perhaps an overstatement. Moreover, the judge informed the jurors that the Nationwide’s role was irrelevant to their deliberations.

Although grounds two and three of the order appealed were insufficient to support a new trial, we affirm the order on the basis of the first ground for the reasons mentioned above.

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . Danny Qualls died after filing this suit, and the personal representative of the estate was substituted as the party plaintiff. Qualls’ death was unrelated to the incident which gave rise to this suit.

      . Qualls’ deposition, taken before his death, was read at the trial.


source: Caselaw Access Project

author: PER CURIAM. DANIEL S. PEARSON, Judge,

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Kolleen M. DAVELLA, Appellee.
    No. 83-1724.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Rehearing Denied June 15, 1984.
    Barnett & Clark and James Clark, Coral Gables, for appellant.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, Beckham & McAliley, Jacksonville, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant seeks review of a final judgment for the plaintiff entered by the trial court pursuant to a directed verdict at the close of all the evidence in an action wherein the plaintiff sought a declaratory judgment on the question of the amount of uninsured motorist coverage in a policy issued by the appellant.

In November 1979, the plaintiff purchased from the defendant, State Farm, an automobile insurance policy. The policy had liability limits of $100,000 and uninsured motorists limits of $15,000. At the time of the purchase of the policy, the plaintiff was a resident of Colorado and the policy was delivered in Colorado. The policy was written for a 6 month period to expire May 12, 1980. Two weeks after she received the policy the plaintiff was transferred to Monroe County, Florida, for employment purposes. She notified her Colorado agent of her Monroe County address and in March, 1980, she received a letter from State Farm to contact a local Florida agent and a Florida policy with $100,000 limits for both liability and uninsured motorists coverage. At this time the Colorado policy had almost 3 months to run and as she wasn’t sure about remaining in Florida, she returned, the Florida policy informing State Farm there was some question as to whether or not she would remain in Florida so she wanted the Colorado policy reinstated. At the expiration of that policy in May, 1980, if she were still in Florida, she would then accept a Florida policy. The policy remained as a Colorado policy until the accident giving rise to this claim which occurred on November 26, 1980. During the interim, the policy had been renewed for the May-November 1980 term and the November, 1980 — May 1981 term and all premiums were paid. After the accident State Farm contended the plaintiff had $15,000 limits under the policy written and delivered in Colorado. The plaintiff contended she was entitled to $100,000 limits pursuant to § 627.727 Fla. Stat. (1980 Supp.). The instant litigation ensued resulting in a directed verdict for the plaintiff holding she had $100,000— $300,000 uninsured motorists coverage.

The appellant contends that the trial court erred in failing to direct a verdict in the appellant’s favor when the policy sued upon was a Colorado policy purchased and delivered in Colorado. The $15,000 limit contained in that policy is controlling and is not changed by Florida law. We agree. This was a Colorado policy when issued and continued as such upon renewal; the policy holder having specifically rejected a Florida policy. Goodman v. Olsen, 305 So.2d 753 (Fla.1975); Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla. 3d DCA 1981); Cf Burnett v. Fireman’s Fund Insurance Company, 408 So.2d 838 (Fla. 2d DCA 1982).

The Colorado policy originally issued was renewed at six month intervals. After the Florida policy was rejected by Davella, no other policy was issued. The general rule in such situations is stated as follows:

“If a court follows the rule that the law governing the construction of an insurance contract is that of the state in which the contract was made, and if an arrangement subsequent to the making of the original insurance contract is treated as a new and independent contract, then the law of the state in which the subsequent arrangement was made, rather than the law of the state in which the original contract was made, will be controlling as to matters involved in the construction of the contract. If, on the other hand, the subsequent arrangement is treated merely as an incident or continuation of the original contract, then the law of the state in which the original contract was made, rather than the law of the state in which the subsequent arrangement was made, will govern as to matter of construction.”
and that,
... “the payment of renewal premiums in a different state from that in which the original contract was made did not constitute the making of a new and independent contract and that the governing law was that which governed the original policy.”
Annot, 3 A.L.R. 3rd 646, 649 (1965).

On the date of loss, the original Colorado policy was still in effect. The Florida insurance code uninsured motorist statute specifically, applies only to policies delivered or issued for delivery in Florida, therefore these statutes have no applicability in the instant case. See, Sections 627.401 and 627.727, Fla.Stat. (1979).

Appellee argues that the premium notices sent Davella by her Colorado agent constitute “delivery” of a policy in Florida because they “evidence the insurance contract and itemized the coverage”.

If the brochures and booklets referred to in Blue Cross of Florida, Inc. v. Turner, 363 So.2d 133 (Fla. 1st DCA 1978) and Albury v. Equitable Life Assurance Society of the United States, 409 So.2d 235 (Fla. 1st DCA 1982) are not defined “policies”, the simple notices of premium sent in this case cannot suffice as policies.

The appellee replies strongly on Gillen v. United States Automobile Association, 300 So.2d 3 (Fla., 1974) and Decker v. Great American Insurance Company, 392 So.2d 965 (Fla. 2d DCA 1980). We find these cases not to be applicable because when the policies therein were issued the insured were permanent residents of Florida or moved to Florida and notified the insurer of their intent to become permanent residents. The instant case differs from Gillen and Decker in that the insured advised the company on several occasions that her move to Florida was temporary and that she wanted to keep her Colorado policy intact. She continued to deal with her Colorado agent and wrote to him, not her Florida agent, to request her renewal policies. She also specifically rejected a Florida insurance policy.

Finding that this was a Colorado policy, the trial court committed error in granting the appellée’s motion for directed verdict and denying the appellant’s motion for directed verdict and therefore we reverse the declaratory judgment under review with directions to enter a directed verdict for the defendants in the trial court.

Reversed and remanded with directions.

DANIEL S. PEARSON, Judge,

dissenting.

The majority concludes that the appel-lee’s reliance on Gillen v. United States Automobile Ass’n, 300 So.2d 3 (Fla.1974), and Decker v. Great American Insurance Co., 392 So.2d 965 (Fla. 2d DCA 1980), is misplaced because “when the policies therein were issued the insured[s] were permanent residents of Florida or moved to Florida and notified the insurer[s] of their intent to become permanent residents,” whereas, in the present case, according to the majority, the insured “advised the company on several occasions that her move to Florida was temporary and that she wanted to keep her Colorado policy intact,” “continued to deal with her Colorado agent and wrote to him, not her Florida agent, to request her renewal policies,” and “specifically rejected a Florida insurance policy.” Indeed, all of these things happened at one time or another, but they hardly establish what the situation was as of November 1980 when the policy in question was issued.

Kolleen Davella and her husband moved from California to Aspen, Colorado in June of 1979. In November of 1979, Davella told her State Farm agent in Colorado that she wanted “full coverage” on the cars then owned by her, namely, a 1977 Toyota Célica and a 1975 Chevrolet. At the time of this request, Davella and her husband had already applied for a transfer from their postal service jobs in Colorado to South Florida, but did not know whether or when their applications would be acted on. State Farm issued Davella a six-month Colorado policy, running from November 12, 1979, to May 12, 1980.

Two weeks later, the Davellas were transferred to Monroe County, Florida, and they gave their Colorado State Farm agent their new Florida address. The Davellas were hoping to stay in Florida, and thus renewed their drivers’ licenses in Florida and registered the Toyota in Florida. However, they encountered problems securing housing and a mortgage in Florida, and acknowledged the possibility that they might have to move back to Colorado.

In the winter of 1979, with three months still to run on the Colorado policy, Davella received in Florida a declaration page of a new Florida policy with uninsured motorist coverage of $100,000, a balance-due notice from State Farm on this new policy, and a letter from State Farm telling her to contact her local agent. As instructed, Davel-la went to see a State Farm agent in Florida and told the agent “that there was, indeed, a possibility that I would be returning to Colorado, that I didn’t want the policies touched until the expiration date .... ” In February of 1980, Davella sent a letter to the State Farm office in Winter Haven in which she wrote:

“I didn’t ask my policies to be turned over to Florida. I asked that it be kept in Colorado until the expiration. Then, if I’m still residing here, you can switch them over. I might not be here. I may be back in Colorado. Also, you sent a refund of $6.98 with no letters. I also don’t pay. I’m already paid up for six months until May the 12th. Please respond. Kolleen Davella.” (emphasis supplied).

Davella testified that she wrote this letter “to make it explicitly clear that [she] wanted the policies changed at the expiration date,” but not sooner, because she was still unsure of her status in Florida. She received no response to her letter.

In April 1980, Davella sold the 1975 Chevrolet and wrote to her Colorado agent that she wanted the policy on that car cancelled and a refund. On April 22, 1980, the agent wrote Mrs. Davella telling her that her Colorado policy had been transferred to Florida in February of 1980 because the Colorado agent no longer had jurisdiction over the policy and to contact an agent in Florida. On April 25, 1980, Davella wrote to the Florida State Farm office about the mix-up:

“I was just notified by Greenwood Springs, Colorado State Farm agent that he turned my policy over to you on 02/12/80, which my agent was told.on that date not to change over my policy, because I was unsure that I was going to stay here in Key Colony Beach. It appears they did it, anyway. I wrote them on 4/10 to cancel the Chevy policy as of 4/12, because we no longer have the car and, therefore, they owe me a refund of 36 days and I want it. On the Célica— the policy on the Célica is to remain active and is due to be expired on 5/18. Please send me a renewal bill, but I don’t expect to lose on this mix-up when the policy on the Chevy , was cancelled 4/12 with Colorado headquarters. If they played around with the location of my policy, I don’t expect to lose on this. Please respond. Kolleen Davella.”

Again, Mrs. Davella received no response to her letter. Because her then-existing Colorado policy was to expire in a couple of weeks, she called the State Farm office in Winter Haven and was told to call the Miami office. She obeyed and talked to one Jim Dye, telling him that her policy would expire in a week and that she was afraid she would be uninsured. Dye said he would check out the situation, then called her back and “said that he fully understood the confusion and that he would take care of it and that he would get a corrected Florida policy_” (emphasis supplied). Davella asked Dye to send her a letter to that effect, and he wrote back on May 7, 1980, five days before the expiration of the Colorado policy, as follows: “We are aware of the confusion between your Colorado policy and your transfer to Florida. You do have coverage from State Farm and will be receiving a corrected policy.”

This letter, as all other communications to Davella from State Farm, was sent to her address in Monroe County. Since moving to Florida in November of 1979, Davel-la had never returned to Colorado and had remained continuously residing in Monroe County, where her Toyota was garaged throughout this entire period of time. Thus, although State Farm knew where Davella was, it never fulfilled its promise, made by Dye, to send Davella a corrected policy. Between the time of this May 7, 1980, letter and Mrs. Davella’s accident on November 26, 1980, she never received any corrected policy. What she did receive was a balance-due notice dated May 19, 1980, telling her that she owed $119.15 for the premium. Mrs. Davella paid the bill, but she still received no policy.

Mrs. Davella had no further contact with State Farm until October 1, 1980, when she wrote her Colorado State Farm agent a letter regarding life insurance. In the course of that letter, she told the Colorado agent that her present automobile policy would expire in mid-November of 1980, and asked him to send her a renewal. She testified that she wrote to the Colorado agent because the Florida agent — Dye— had never responded to her or sent her the policy which he had promised. The Colorado agent wrote back on October 21, 1980, telling Davella that payment for a new automobile policy was due November 12, 1980, and that if Davella sent the Colorado agent the money, he would send her the policy. She then received from Colorado a premium notice dated November 12, 1980, and she sent a check to Colorado for the amount owed. Davella testified that she sent the check to Colorado because “I thought that that was the headquarters of State Farm.” Once again, Davella did not receive the policy for the six-month period between November 12, 1980, and May 12, 1981.

Thus, contrary to the majority’s view, it is far from clear that as of November 12, 1980, or, for that matter, May 12, 1980, Mrs. Davella was not a permanent resident of Florida, had not notified State Farm of her intent to be one, had not told State Farm she wanted a Florida policy, or had rejected a Florida insurance policy. Davel-la’s actions before May 12, 1980, prove little or nothing about her later status or intentions, and her continued dealings with the Colorado office out of frustration with Florida’s inaction and broken promises hardly establishes that the policies issued on May 12, 1980, and November 12, 1980, which were never delivered, were not “issued for delivery” in Florida so as to make Section 627.727, Florida Statutes (Supp. 1980), applicable.

Even if, arguendo, it is not clear that Mrs. Davella requested that a Florida policy be issued to her as of May 12, 1980, if she were then, which she was, residing in Florida, the very most that can be said of the evidence in this record is that Davella was not entitled to a directed verdict in her favor, not, as the majority concludes, that the insurance company was entitled to a directed verdict in its favor.

      . Davella refused this "Florida" policy with the following written explanation to State Farm:
      “I didn't ask my policies to be turned over to Fla. they’re to be kept in Colo until the expiration then if I’m still residing here you can switch them over I may not be here I may be back in Colo — I also don’t plan on paying another 10<t if the rates are higher here I already payed (sic) & I’m payed (sic) up till May 12 ...”
      State Farm, then, pursuant to its insured’s request, transferred the Florida policy back to Colorado in March of 1980, and reinstated the original Colorado policy.
      Sometime in April of 1980, Davella had some conversation and dealings with her Colorado local State Farm agent concerning another vehicle of hers. She then received a letter from that agent informing her that her policy was still in Florida and that she should deal with her Florida agent.
      Upon learning that information, Davella, on April 25th, 1980, only seventeen days before the expiration date of her Colorado policy, wrote State Farm’s Florida regional office complaining that her policy had been turned over to Florida and again reiterating that,
      ”... my agent was told ... not to change over my policy because I was unsure if I was going to stay here ...”
      In response to that complaint, a State Farm agent in Miami, one Jim Dye wrote her a memo which state:
      "We are aware of the confusion between your Colo policies and your transfer to Fla. You do have coverage with State Farm and will soon be receiving your corrected policies.”
      Dye testified that the memo was written to Dav-ella after a telephone conversation where Davel-la stated she wanted her policy to stay in Colorado.
      Davella next received a premium notice for her Colorado policy from Greely, Colorado. She paid her renewal premium and sent it to Greely, Colorado.
      In October of 1980, while dealing with her Colorado agent about a life insurance policy, Davella wrote a letter to him which stated:
      "... concerning my automobile policy which comes due in November Please send me the renewal as early as possible as last year, six months ago, it was quite a mix up ...”

      . Mrs. Davella testified:
      "My status at this point still was I didn’t really know where I was going to be. The policy only had two and a half months left and I really felt that it shouldn't be interrupted until we could find out what we were doing. We hadn’t even secured housing. And that’s what my situation was at that time.

      . In her letter of April 25, 1980, to the Florida State Farm office, supra, Mrs. Davella had written that her policy on the Chevrolet had been cancelled "with Colorado headquarters." This is consistent with Mrs. Davella's trial testimony that she considered Colorado to be State Farm headquarters.


author: BERANEK, Judge.

text:
    Sara Jane MARELL, Lawrence Abramson, and Palm Beach County Commissioners, Appellants, v. Signe HARDY, et al., Appellees.
    No. 82-1756.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    Rehearing Denied June 14, 1984.

      George H. Bailey of Jones & Foster, P.A., West Palm Beach, for appellants, Ma-rell and Abramson.
    Charles F. Schoech, West Palm Beach, for appellant, Palm Beach County Com’rs.
    Tracy R. Sharpe of Farish, Farish & Ro-mani, West Palm Beach, for appellees.
   BERANEK, Judge.

Petitioners seek review of a circuit court order which granted respondents’ petition for writ of certiorari and quashed certain portions of resolutions of the Palm Beach County Board of County Commissioners. An appeal has also been filed, but we treat this matter as a petition for certiorari, quash the order of the circuit court, and reinstate the Board resolutions in their entirety.

In 1969, petitioner, Stephen Abramson, the owner of undeveloped property (now owned by Abramson and others), filed an application with Palm Beach County seeking permission to develop a mobile home park site. Specifically, Abramson petitioned for the conditional use of an eighty-acre parcel of property for a mobile home park. At the public hearings before the Commission, Abramson indicated that he intended to develop a golf course on a portion of the property. Only one person from the public addressed Abramson’s petition. He stated that he was not speaking against the petition but that he would like the 25 acres which Abramson had indicated that he intended to develop as a golf course to be zoned for that purpose. Abramson had no objection to that request. Indeed, the original petition on file included the golf course. As all the -interested parties were in agreement, the Commission granted Abramson’s petition upon the following motion:

That the petition as modified to include the golf course as a conditional use be granted and that a minimum of 25 acres is to be utilized for the golf course, that a maximum of 55 acres is to be utilized for a mobile home park.

Thereafter, Mr. Abramson constructed the mobile home park and golf course. He later constructed single family homes and condominiums on other surrounding property which he owned.

Approximately 12 years later, on April 9, 1981, Abramson and other property owners petitioned the Palm Beach County Planning Commission to rezone the golf course parcel from AG-Agricultural District to RS-Residential Single Family District. The petition further sought a special exception to permit the operation of a mobile home rental park on the parcel. The petition also sought modification of the conditional use agreed upon by Abramson and the County Commissioners in 1969. After considering a number of factors pertinent to the petition, the Planning Commission voted unanimously to grant it. Thereafter, the Board of County Commissioners considered the petition at three separate meetings before it concluded on a 4-1 vote that the application should be granted. The Board adopted two resolutions: Resolution No. R-81-1195 rezoned the parcel from AG-Agricultural District to RS-Residential Single Family District, and Resolution No. R-81-1196 granted a special exception to allow a mobile home rental park thereon and modified the 1969 conditional use.

On September 28, 1981, respondents (property owners in the area) filed a petition for writ of certiorari against the County Commission asserting that there was no relationship between the rezoning adopted by the Commission and the promotion of the public health, safety, morals, and general welfare of the community. The petition alleged that the determination to grant the property owners’ petition was arbitrary, discriminatory, and unreasonable, was not fairly debatable, and constituted a gross abuse of discretion by the Commission. After preliminary proceedings, on February 24,1982, the trial court remanded the case to the County Commissioners for the stated purpose of clarifying Resolution No. 81-1196 asking: “Did they intend by that Resolution to terminate the 1969 condition which petitioner claims required that in order to use the 55 acres as a mobile home rental park, the property north thereof be utilized as a golf course?” The County Commission met pursuant to the court’s remand order and adopted Resolution No. R-82-550 which read:

Be it resolved by the Board of County Commissioners of Palm Beach County, Florida, that its Resolutions No. R-81-1195 and R-81-1196 be, and they hereby are, clarified pursuant to said Order of said court to make clear that it was the intent of the Board of County Commissioners to eliminate, completely, the requirement of the golf course, thus allowing the golf course area to be developed as a mobile home park.

On June 30, 1982, the trial court recommended proceedings in the matter. Respondents again argue that the 1969 resolution provided that the use of the existing mobile home park was conditioned upon the continued use of the parcel as a golf course. Respondents further claimed that petitioners did not present substantial competent evidence to show a change in the character of the community that would be conducive to allowing a mobile home park to justify the Commissioner’s adoption of the resolutions. Petitioners argued that the County Commission had acted within its power and that the adoption of the resolutions was supported by substantial competent evidence as would make the matter at least “fairly debatable.”

The trial court entered an order leaving intact Resolution No. 81-1195, but quashing those portions of Resolution No. 81-1196 and Resolution No. R-82-550 which purported to grant a special exception allowing a mobile home park. In its order, the trial court stated: “[T]he action of the County Commission is clothed with a presumption of correctness and should be set aside only on a showing that the action was not fairly debatable, or otherwise contrary to law.” It then went on to rule in favor of respondents on a theory of administrative res judicata. Petitioners are now before us challenging this order.

The trial court enunciated two doctrines in its order, one being the “fairly debatable” rule and the other being the doctrine of res judicata. As the trial court was persuaded by the latter, we will address it first. Citing to Burger King Corporation v. Metropolitan Dade County, 349 So.2d 210 (Fla. 3d DCA 1977), and Metropolitan Dade County Board of County Commissioners v. Rockmatt Corporation, 231 So.2d 41 (Fla. 3d DCA 1970), the trial court correctly stated that the doctrine of administrative res judicata “is applicable to rulings or decisions of administrative bodies and to rulings of such bodies dealing with zoning regulations unless it can be shown that since the earlier ruling thereon, there has been a substantial change of circumstances relating to the subject matter of the ruling sufficient to prompt a different or contrary determination.” The trial court found this doctrine applicable and then determined that the evidence was insufficient to show a substantial change of circumstance. The trial court erred in both respects.

Initially, we determine that the doctrine of administrative res judicata is inapplicable here. The seminal case of City of Miami Beach v. Prevatt, 97 So.2d 473 (Fla.1957), holds that the doctrine should be applied in zoning cases with great caution pointing to the requirements of identity of parties and of causes of action. Here, we have neither. The issue of whether the golf course parcel could be used as a mobile home park was actually litigated for the first time at the hearing on the petition for writ of certiorari before the circuit court. In 1969, Abramson himself wanted to use the parcel as a golf course and certainly no one opposed it. Thus, there was no prior action to which the doctrine could apply. Furthermore, since there was no prior action, there was no identity of parties. The case before us is easily distinguishable from Burger King, supra. In that case, a property owner went before the Dade County Commission three times in a short span of time in an attempt to obtain a use variance. Twice the Third District was called upon to rule on the propriety of the Commission’s decision to deny the variance. It is clear that the requirements of the theory of administrative res judicata were present and that the court properly applied the doctrine in that case.

We further note that even if the doctrine were applicable in the case before us, we believe that sufficient evidence of a substantial change of circumstances was present to overcome the effect of administrative res judicata. The intervening 12-year period was one of great development and change in Palm Beach County. The Board, as the elected representatives of the county, was directly involved in this development and was presented with specifics during these proceedings regarding other new recreational development in the area and other new mobile home park development in the area. These were all matters which the Board of County Commissioners appropriately relied upon despite the conclusion of the circuit court to the contrary.

We now address the “fairly debatable” rule mentioned by the trial court. All zoning must meet the constitutional test of being within the police power, i.e., it must bear a substantial relationship to the public health, welfare, safety, and morals of the community. It is the function of the legislative body charged with responsibility for protecting and enhancing the health, welfare, and safety of the public to weigh the advantages and disadvantages of rezoning property. Jones v. First Virginia Mortgage and Real Estate Investment Trust, 399 So.2d 1068 (Fla. 2d DCA 1981). The courts are not super zoning boards substituting their judgment for that of the legislative and administrative bodies exercising legitimate objectives. S.A. Healy Company v. Town of Highland Beach, 355 So.2d 813 (Fla. 4th DCA 1978). Zoning resolutions are presumed valid and should not be disturbed by the courts unless they are arbitrarily and unreasonably applied to a particular piece of property. Dade County v. United Resources, Inc., 374 So.2d 1046 (Fla. 3d DCA 1979). A clear showing of an abuse of discretion by the Commission is required. Jones, supra.

The test to be used in determining whether a zoning resolution is arbitrary and unreasonable as applied to a particular piece of property is whether the particular resolution is “fairly debatable.” The court’s function is to determine whether the zoning resolution meets the constitutional test of being within the police power, i.e., serving the health, safety, morals, or general welfare of the public. If this question is open to dispute or controversy on grounds that make sense and are fairly debatable then the court should not substitute its judgment for that of the zoning authority (legislative body). See Dade County v. United Resources, Inc., supra, at 1049 and 1050. One can analogize the scope of review which the trial court has under the “fairly debatable” rule to our scope of review in divorce cases under the “reasonable man” theory enunciated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In such cases, if reasonable men can differ as to the propriety of the action taken by the trial court, we cannot say that the trial court abused its discretion nor can we substitute our judgment for that of the trial court. By the same token, the trial court under the “fairly debatable” rule is limited to a determination of whether a legitimate controversy existed before the zoning body. If the court so determines, then the Commission’s action must be upheld.

The burden is upon the party seeking relief from the resolution to show that the resolution was not a fairly debatable issue before the legislative authority, here, the County Commission. Even though there may be competent evidence and argument against the zoning change, the resolution need only be supported by competent substantial evidence to show that the matter was fairly debatable. Dade County v. United Resources, Inc., supra. We hold that both sides presented competent evidence of the reasonableness of their positions to the Commission, thus making the issue fairly debatable. We therefore hold that the trial court departed from the essential requirements of law in quashing those portions of the resolutions granting a special exception to allow a mobile home park. We quash the order of the circuit court and remand this matter for reinstatement of the Board resolutions in their entirety.

CERTIORARI GRANTED; ORDER QUASHED; REMANDED.

ANSTEAD, C.J., and COCALIS, PATRICIA W., Associate Judge, concur.

      . We note that under the theory of administrative res judicata, there had to be sufficient evidence of a substantial change of circumstances while under the “fairly debatable” rule, a petitioner need only show the existence of a legitimate, i.e., fairly debatable controversy.


author: GLICKSTEIN, Judge.

text:
    Jimmie Lee ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 83-317.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1984.
    Rehearing Denied June 27, 1984.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
    Robert Dowlut, Washington, D.C., for amicus curiae.
   GLICKSTEIN, Judge.

This is an appeal of the trial court’s order, denying appellant’s sworn motion to dismiss. Appellant pled nolo contendere, reserving for appeal the denial of the motion to dismiss. The parties had stipulated the denial would be dispositive.

The record establishes that appellant was charged by information with carrying a concealed firearm. Appellee’s traverse to the sworn motion to dismiss either admitted or pled lack of knowledge of the following material facts:

1. On September 7, 1982, the defendant was seated in the driver’s seat of his automobile.
2. Defendant’s automobile was parked in Wag’s parking lot.
3. Defendant was employed at Wag’s.
4. Officer Edmonston, in plain clothes, became suspicious of the defendant and sent Officer Lerman in a marked unit to investigate.
5. Officer Lerman asked the defendant for identification.

There was disagreement as to all or part of the following facts:

SWORN MOTION TO DISMISS TRAVERSE

6. The defendant opened his zippered • pouch and looked for his identification. 6. Defendant's 6 denied. When the officer requested defendant’s identification, defendant stated he had some and started to unzip a black leather hand purse. The defendant stopped unzipping the purse, zipped it back up quickly, and said he did not have his wallet or identification on his person at that time.

7. Defendant was unable to find his identification and closed his pouch— zippered it shut. 7. The defendant did zipper the purse shut, but never looked inside it. Officer Lerman later found defendant’s wallet, driver's license and other forms of identification in the purse, after the defendant denied having them.

The state specifically admitted facts 8 through 10 as stated in the motion to dismiss:

8. Officer Lerman became suspicious of a bulky object in the pouch.
9. Officer Lerman opened the pouch.
10.Officer Lerman arrested the defendant for carrying a concealed firearm.

As to paragraph 11, the motion to dismiss quoted newly effective sections 790.-25(5) and 790.001(16), Florida Statutes (Supp.1982), underlying in the latter “in a zippered gun case,” thus implying that the statute exempted the present situation from the prohibition against carrying concealed firearms in a motor vehicle. The state agreed that the statute was correctly quoted, but stated there was a disputed material fact in that the object containing the gun was a man’s black leather hand purse and not a zippered gun case. In support of its position the state pointed out that defendant’s wallet, driver’s license and various forms of identification were found in another zippered compartment of the same object.

The sole issue before the trial court bearing upon the charge was whether the pistol was securely encased within the meaning of section 790.001(16). The court ruled the bag was neither a zippered gun case nor a container that requires opening a cover or a lid for access and therefore the firearm was not securely encased; and as a result of appellant’s plea, withheld adjudication and placed appellant on eighteen months’ probation. There are two issues on appeal, the appellant raising here for the first time the second of the two:

I. Whether the trial court erred by denying the motion to dismiss. We conclude that it did not.
II. Whether section 790.01(2), Florida Statutes (1981) as refined in sections 790.25(5), Florida Statutes (Supp.1982) and 790.001(15), Florida Statutes (Supp.1982) is void for vagueness. We conclude that it is not.

Accordingly, we affirm.

That this is not a run-of-the-mill case is shown by the fact the National Rifle Association (NRA) has submitted an amicus brief. While Americans continue to kill and maim themselves to such extent that communities may not have a baseball team but they have a SWAT team, English constables still walk their beats without weapons. Most contemporary constitutional scholars agree that the second amendment to the United States Constitution concerns only the militia and does not guarantee individuals an unbridled right to carry arms. The Florida Constitution, however, at article I, section 8, expressly states the right of the people to keep and bear arms in defense of themselves, as well as of the lawful authority of the state, subject to the legislature’s authority to regulate the manner of bearing arms. This provision of the Florida Constitution and similar provisions in the constitutions of some thirteen other states have been read as guarantees to individuals, not the people collectively. Sections 776.012 and .031, and 782.02, Florida Statutes, reinforce this view by making it lawful to use firearms in defense of life, home and property, as does the policy declaration in the statute with which we are here most concerned, section 790.25. It would be a futile digression to point out that an alarming percentage of all deaths by firearms are perpetrated by the bearers of arms on acquaintances, friends, family members and themselves.

The purpose of present legislated restrictions on ownership, possession and use of firearms and other weapons is to promote firearms safety and to curb and prevent the use of firearms and other weapons in crime and by incompetent persons without prohibiting their lawful use in defense of life, home or property, by state and federal military, and in other lawful uses such as target practice, marksmanship, and hunting, as permitted by law. Section 790.25(1).

Section 790.01(2) makes it a third degree felony to carry a concealed firearm on or about one’s person. Prior to amendment in 1982, section 790.25(3)(Z) made an exception merely for “[a]ny person traveling by private conveyance when the weapon is securely encased.” In Ensor v. State, 403 So.2d 349 (Fla.1981), the Supreme Court of Florida held that a firearm need not be absolutely invisible in order to be concealed, for purposes of the statute prohibiting carrying a concealed firearm, so long as the weapon was concealed from the casual and ordinary observation of another in the normal associations of life, and the weapon was physically on the person or readily accessible to its bearer. Thus a passenger in a vehicle was carrying a concealed weapon when an officer who stopped the vehicle, peering through the windshield, saw a portion of a white object which he was then able to tell, by looking into the already-opened passenger door, was a derringer. According to Ensor a firearm could simultaneously be in open view, for purposes of seizure under the open view doctrine, and concealed, in violation of the concealed firearms statute. Moreover, even if a weapon were in a locked glove compartment, Ensor indicated it could be “about the person” and thus a prohibited concealed weapon.

Ensor apparently prompted the legislature to add section 790.25(5), Florida Statutes (Supp.1982), which provides:

(5) POSSESSION IN PRIVATE CONVEYANCE. — Notwithstanding subsection (2), it is lawful and is not a violation of s. 790.01 to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for a lawful use. Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed in favor of the lawful use, ownership, and possession of firearms and other weapons, including lawful self-defense as provided in s. 776.012.

Subsection (2), mentioned in the quoted subsection, makes clear that the usual requirement of a permit to carry a concealed firearm is not undone by this portion of the statute. The 1982 legislature also provided definitions for “securely encased” and “readily accessible for immediate use.” “ ‘Securely encased’ means encased in a glove compartment, whether or not locked; in a snapped holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.” Section 790.001(16), Florida Statutes (Supp. 1982). “ ‘Readily accessible for immediate use’ means that a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person.” Section 790.001(15), Florida Statutes (Supp. 1982).

According to Rule of Criminal Procedure 3.190, the trial court must deny a motion to dismiss if the state files a sworn traverse which with specificity denies a material fact alleged in the motion to dismiss; for then it is not clear that there is lacking a prima facie case of guilt against the defendant. See Rule 3.190(c)(4) and (d).

In the present ease the defense in its sworn motion to dismiss averred that the firearm was in a zippered gun case, and therefore Alexander’s carrying of it in his automobile was not in violation of the statute. The state, in its sworn traverse specifically denied that the firearm was in a zippered gun case, stating rather that the firearm was in a man’s black leather hand purse. It fortified this with the fact that in another zippered compartment of the same purse the officer found the defendant’s wallet, driver’s license and various other forms of identification.

What is a zippered gun case? The NRA, in its amicus brief, argues that Alexander’s pouch qualifies as a zippered gun case, referring to a catalog that apparently enjoys considerable circulation to show that zippered gun eases may have room for carrying objects additional to the gun. The court looked at the pictures of Alexander’s pouch, which are included in an envelope in the record, and determined the pouch was neither a zippered gun case nor a container requiring a top or lid to be opened to make the contents accessible. While the pictures were informational, it was the office of the trial court to look only to the motion to dismiss and the state’s traverse. Having done so, the court properly could have found that there remained a dispute of a material fact which the trier of fact ought to resolve.

Appellant appropriately relies on Trushin v. State, 425 So.2d 1126 (Fla.1983), as authority for a convicted appellant’s constitutional issue being raised and entertained for the first time on appeal as shown in the following excerpt:

The district court answered the facial constitutionality of the statute question with the . following correct assertion: “Notwithstanding that these issues are acknowledgedly raised for the first time on appeal, we consider their merits because a conviction for the violation of a facially invalid statute would constitute fundamental error.” [Trushin v. State ] 384 So.2d [668] at 672 [Fla. 3d DCA 1980] (footnotes omitted). The facial validity of a statute, including an assertion that the statute is infirm because of over-breadth, can be raised for the first time on appeal even though prudence dictates that it be presented at the trial court level to assure that it will not be considered waived. The constitutional application of a statute to a particular set of facts is another matter and must be raised at the trial level. Once an appellate court has jurisdiction it may, if it finds it necessary to do so, consider any item that may affect the case. See Whitted, [v. State, 362 So.2d 668 (Fla.1978) ]; Miami Gardens, Inc. v. Conway, 102 So.2d 622 (Fla.1958); Vance v. Bliss Properties, Inc., 109 Fla. 388, 149 So. 370 (1933).

Id. at 1129-30. It should be noted that a distinction is drawn between facial unconstitutionality of the statute and unconstitutionality of the application of the statute to the facts of the particular case. The former may be raised for the first time on appeal; the latter must first have been raised at the trial level. The logic is that a facially unconstitutional statute creates no subject matter jurisdiction pursuant to which a court may convict the accused, whereas, one infers, a statute alleged to be applied unconstitutionally in the case has no such infirmity. Thus application of an unconstitutional statute constitutes fundamental error, whereas unconstitutional application of an otherwise constitutional statute does not.

HURLEY, J., and SMITH, CHARLES E„ Associate Judge, concur.

      . As to whether the principle that facial unconstitutionality may first be raised on appeal applies when there was a nolo contendere plea rather than a trial and conviction, the law is harder to pin down. Appellant analogizes to Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). There it was held that even where the conviction resulted from a counseled plea of guilty, it must be set aside if the United States Constitution precludes the state from hauling the defendant into court on a charge. Appellant argues that in light of this holding and the practical equivalence for appellate purposes between conviction and sentence on one hand and the withholding of adjudication and imposition of probation on the other, the Trush-in holding applies as well in circumstances like those of the instant case. We agree.


author: MILLS, Judge.

text:
    DEVCO PREMIUM FINANCE COMPANY, a corporation, Appellant/Cross Appellee, v. NORTH RIVER INSURANCE COMPANY, a foreign corporation; Paul G. Miller, Jr., Robert E. Holley, and Miller & Holley Chartered, a professional corporation, Appellee/Cross Appellant.
    No. AV-46.
    District Court of Appeal of Florida, First District.
    May 18, 1984.
    Noah H. Jenerette, Jr., James H. McCarty, Jr., Karen K. Cole of Boyd, Jenerette, Staas, Joos, Williams & Felton, P.A., Jacksonville, for appellant/cross appellee.
    G. Kenneth Norrie and E. Allen Hieb, Jr. of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, Robert M. Greco of Karon, Morrison & Savikas, Ltd., Chicago, Ill. and Rudolph J. Inman, Jr. of Inman & Landau, Jacksonville, for appellee/cross appellant.
   MILLS, Judge.

We are asked in this appeal to determine whether an accounting firm is entitled to assert the defense of comparative negligence in a malpractice action instituted against the firm by a client. We agree with the trial court that the firm is entitled to assert such a defense.

Devco Premium Finance Company (Dev-co) served clients who desired to purchase insurance policies but who could not afford to pay the initial lump-sum premiums on those policies. Each client paid to the agent of the insurer a stated percentage of the lump-sum premium, generally 80 percent, and Devco then paid the insurer the remainder of the premium. In return for Devco’s payment to the insurance company on behalf of the client, the client: (1) agreed to make monthly payments to Dev-co, amortizing the balance due on the premium plus interest; (2) assigned the unearned premium held by the insurance company to Devco as a security interest; and (3) provided Devco with a power of attorney. When a client failed to make a monthly payment, Devco used its power of attorney to cancel the client’s insurance policy. Upon cancellation, the insurance company refunded to Devco the portion of the client’s premium which was as yet unearned. Devco thereby protected itself from loss because the premium returned by the insurance company should always be greater than the amount owed by the client to Devco.

Timely notification to the client that he was in arrears on his payment and prompt cancellation of the insured’s policy upon the insured’s failure to become current in his payments were critical to the success of Devco. Because Devco did not subject its clients to credit checks and did not require the pledge of collateral, its only security lay in the interest which it held in the client’s unearned premium. If it failed to promptly cancel the insurance policy of a client who defaulted on his payments, more of the premium would be earned by the insurance company, and Devco stood not only to lose its profit but also its initial investment.

Initially, Devco subscribed to a monthly computer service which provided it with reports of the aging of its accounts receivable. The reports showed the accounts receivable on which payments were 0 to 30 days overdue, 31 to 60 days overdue, and more than 60 days overdue. Devco received these monthly computer aging reports from 1976 through May 1980. On 1 June 1980, Devco began converting to an in-house computer system. Although the problem had existed before the conversion, the company soon began to experience severe problems with failure to properly cancel delinquent accounts. Although Dan Crisp, the President of Devco and a member of its Board of Directors, had available to him the monthly printouts with their aging schedules from 1976 through May 1980, he never reviewed them during that time.

Paul G. Miller and Robert E. Holley, certified public accountants, operating under the firm name of Miller & Holley, audited the financial records of Devco for the fiscal years ending 30 June 1979 and 30 June 1980. Mike Latimer, an employee of Miller & Holley, actually performed most of the audits.

During the 1979 and 1980 audits, Miller & Holley devised a statistical confirmation, test to determine the number and size of doubtful accounts receivable. Latimer omitted numerous pre-1980 contracts from the sample used for this test even though those contracts were still outstanding and were included as accounts receivable on the company’s financial statements. Miller & Holley relied upon the opinion of Gladys Tillman, manager of Devco, as to the collec-tibility of these pre-1980 accounts which were omitted from the confirmation sample used. Latimer selected 240 Devco accounts receivable to test by confirmation procedures in both the 1979 and 1980 audits. It appears, however, that in each year he in fact tested only 100 of the 240 accounts and neglected to test the remainder because he concluded, after completing the 100 accounts, that no problems existed. In fact, many of the accounts selected for testing were deficient. Of the 100 accounts actually tested by Latimer in one of the years, 80 were debit accounts on which payments from the client were owed. Of these 80 accounts, 27 were accounts on which the security — the unearned insurance premium — had been lost. Miller & Holley ignored the results of the statistical sample testing and instead established a doubtful accounts receivable allowance of .5% of the outstanding premium contracts receivable.

In June 1981, Dan Crisp learned for the first time that Devco was no longer a profitable operation. He had believed from his review of the Miller & Holley audits performed on 30 June 1979 and 30 June 1980 that Devco had sound accounts receivable and was a thriving business. Crisp first became aware of the serious delinquent accounts problem when an employee showed him a computer printout indicating that $500,000 worth of accounts receivable were delinquent more than 90 days.

Florida National Bank had extended $700,000 credit to Devco in reliance upon the audited financial statements prepared by Miller & Holley. The bank determined the line of credit which it would extend to Devco by calculating a percentage of the nondelinquent accounts receivable. In ■ 1981, Edward M. Clay, a Florida National Bank Commercial Loan Officer, reported to the bank loan committee that $632,179.93 of the Devco accounts receivable previously presumed collectible were in fact over 90 days old and should not be considered as collateral. Clay then notified Devco by letter that it would need to infuse between $325,000 and $400,000 in additional capital to secure its line of credit. When Devco was unable to provide this additional capital, Florida National Bank called in its line of credit loan, causing Devco to liquidate.

By way of amended complaint, Devco alleged that Miller & Holley negligently prepared its audits- of 30 June 1979 and 30 June 1980 and that Devco had suffered damages as a result of its reliance on them. After a nonjury trial in which expert testimony was presented by both sides, the trial court made the following findings of fact, with which we concur:

C. The financial statements submitted by Miller & Holley included expressions of opinions that the accompanying balance sheet and statements of earnings, etc., presented fairly the financial position of Devco at fiscal years’ ends; and those submissions further stated that those opinions were expressed after examinations of Devco’s books and records “made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances.” The values of the company’s assets, specifically its premium contracts receivable (PCR’s), were substantially overstated because of a failure on the part of company personnel to timely cancel insurance policies when the insured failed to make the installment payments required by his contract with the company. It is those facts which make this case unique. To a material degree, the gross amounts owed Devco by the insureds who were its debtors were correctly stated in the financial statements. Devco’s financial problems arose and this suit ensued when it was discovered that those accounts receivable, though existent, were virtually without value. All parties, i.e.: management and the auditors, were aware, or should have been aware, of the fact that collections of most of the balances due on PCR’s became highly unlikely if timely cancellation for non-payment was not effected.
D. Generally accepted auditing standards require an independent auditor to perform a number of functions, included among which are: (a) the testing of accounts receivable; and (b) communication of material weaknesses in internal accounting control that come to his attention to senior management or the Board of Directors. The performance of the latter function, however, is only an incident to the auditor’s objective in making an examination of financial statements, which is to form the opinion relating to the fair presentation of financial position, etc. And the existence of the duty to perform that function does not relieve management of its responsibility for the establishment and maintenance of a system of internal accounting control nor does it convert the auditor into something of management’s agent who must police the system created by management. The evidence in this case, at any rate, does not establish that any material weakness in Devco’s internal accounting control ever came to the attention of Miller & Holley. What the evidence does disclose is that had Miller & Holley adequately and properly tested Devco’s accounts receivable, the material weaknesses in ‘the internal accounting controls established and maintained by management would have been earlier revealed; and the awareness of the existence of those weaknesses would have provided management an opportunity to take remedial action.
E.Because of the small size of the balances due on most of the PCR’s, Miller & Holley, through Miller, chose not to canvas all accounts, opting instead to canvas a statistical sampling for its test results. That procedure was reasonable. Whether the entire field from which the test samples were chosen was complete or not is of no moment because the test results which were produced contained a sufficient number of discrepancies and informational voids to lead any prudent auditor to conduct further inquiry. Such inquiry would have led to an examination of the individual files/payment records and would have readily disclosed that proper cancellation procedures were not being followed. Miller & Holley did not conduct appropriate further inquiry, even though its own work papers suggested the necessity therefor.
F. Both Devco’s senior management and its Board of Directors relied heavily on both the financial statements (audited) and on the monthly “write up services” (unaudited) presented by Miller & Holley during calendar 1978, 1979 and 1980. They did so to an unwarranted degree. Each of them paid a great deal of attention to the size (growth) of the company’s receivables as a composite; but neither, as it should have, took the steps necessary to assure availability of the aging reports which would have provided the quality control vital to the life of an insurance premium finance company. Under its contract with an insured, Dev-co acquired the right on behalf of the insured to cancel any policy if the insured was 10 days late in the making of any installment payment. Prompt cancellation, with the resultant refund of unearned premium, resulted in no loss to Devco. Prudent insurance premium finance company management regularly employs aging reports prepared monthly, and those reports are ordinarily prepared by company employees.
G. Devco compounded its problems by attempting to install an in-house computer system without adding the personnel necessary to assure an orderly conversion. The result was that the problems of tardy cancellations were increasing at an alarming rate when growth was deceptively encouraging, but quality controls were non-existent. For the period June 1980 through approximately January 1981 management had virtually no computer print-outs available to it, and back up systems were not in place.

The trial court further found that the damages suffered by Devco as a result of the negligence of Miller & Holley were limited to “diminished values in accounts receivable.” Fault was apportioned at 80% on the part of Devco and 20% on the part of Miller & Holley.

The only reported ease in Florida dealing with an accountant’s malpractice liability to his client is Dantzler Lumber & Export Co. v. Columbia Casualty Co., 115 Fla. 541, 156 So. 116 (1934), where it was held that auditors and accountants occupy a relation of trust and confidence to their employer based upon their superior knowledge of accounting and auditing principles. That case did not address the effect of the client’s contributory negligence, and, indeed, there have been relatively few such cases reported throughout the United States. See generally, Annot., 92 A.L.R.3d 396 (1979).

In arguing that auditors are not entitled to assert the defense of comparative negligence, Devco relies principally upon and urges that we adopt the holding of National Surety Corporation v. Lybrand, 256 A.D. 226, 9 N.Y.S.2d 554 (1939), which was that “[njegligence of the employer is a defense only when it has contributed to the accountant’s failure to perform his contract and to report the truth.” 9 N.Y.S.2d at 563. We decline to adopt that holding because Lybrand was decided on principles of contributory negligence, a doctrine which has been repudiated in this State. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Rather, we believe the better rule is the one adopted in Craig v. Anyon, 212 A.D. 55, 208 N.Y.S. 259 (1925), that “[plaintiffs should not be allowed to recover for losses which they could have avoided by the exercise of reasonable care.” 208 N.Y.S. at 268. Accord, Delmar Vineyard v. Timmons, 486 S.W.2d 914 (Tenn.App.1972). Therefore, we hold that the trial court did not err in allowing Miller & Holley to assert the defense of comparative negligence, nor in assigning 80% of the fault to Devco.

During opening and closing argument, Devco admitted that Miller & Holley was not responsible for $130,000 worth of the delinquent accounts. Miller & Holley argues that the trial court erred in the amount of damages it awarded because it failed to subtract the $130,000 from the total damages figure. We are unable to determine from the record whether these damages were in fact deducted. Therefore, we remand this case to the trial court with instructions to deduct, if it has not already done so, the $130,000 from the total damages suffered by Devco.

Affirmed in part, reversed in part, and remanded with instructions.

SMITH and NIMMONS, JJ., concur.


author: SCHEB, Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Leo DECKER, Carl Shepard, and Dora J. Shepard, Appellees.
    No. 83-1931.
    District Court of Appeal of Florida, Second District.
    May 23, 1984.

      Janice G. Scott, Alan E. DeSerio, Craig M. Dickinson, and John H. Beck, Tallahassee, for appellant.
    H. Rex Owen and Bruce Crawford of Owen & McCrory, St. Petersburg, and Thomas M. Gallen of Miller, Gallen, Kaklis & Venable, Bradenton, for the Shepards.
   SCHEB, Judge.

The Department of Transportation (DOT) challenges the trial court’s order awarding the defendants, Carl and Dora Shepard, attorneys’ fees prior to conclusion of the proceedings in a condemnation action. We reverse.

In 1978 the DOT filed an eminent domain proceeding to condemn lands for a road project. DOT sought to acquire from defendants a temporary easement “for the period of construction ... [to] expire upon the completion of the construction of the said road project.” The trial court entered an order of taking granting DOT the right of possession of the easement. Subsequently, a jury awarded defendants $17,000 for the value of the land and $750,000 for severance and business damages caused by the taking of the temporary construction easement. DOT appealed that judgment. In reversing and remanding for a new trial on the merits, this court also reversed the trial court’s award of $200,000 attorneys’ fees to defendants. Division of Administration, State Department of Transportation v. Decker, 408 So.2d 1056 (Fla. 2d DCA 1981), petition for review denied, 415 So.2d 1361 (Fla.1982).

On remand defendants again moved for an award of attorneys’ fees for services in the initial trial. The trial court denied the motion, noting that any award of fees should be withheld until retrial “at which time the Court will be in a position to determine the benefits resulting to the property owners and the time spent by the attorneys.”

On September 16, 1982, DOT moved to amend its complaint to delete the language referring to the duration of the construction easement., DOT sought a new termination date for that temporary easement based on a revision in the construction plans for the road project. The Secretary of Transportation, it noted, had executed a resolution wherein DOT abandoned its right of easement on the defendants’ property effective September 30, 1982. The trial court allowed the amendment request-' ed by DOT. This court, in a per curiam decision, affirmed the trial court’s order. Shepard v. Division of Administration, State Department of Transportation, 431 So.2d 997 (Fla. 2d DCA 1983).

On May 4, 1983, defendants again moved the trial court to fix attorneys’ fees in respect to their services at the initial trial. This time defendants alleged that since DOT had elected to terminate the easement, they no longer had an opportunity for a jury trial on the issue involved in the original taking. Thus, they contended, an award of attorneys’ fees was now appropriate. After hearing expert testimony, the court entered an order awarding defendants attorneys’ fees of $205,000.

The trial court succinctly set forth its reasoning as follows:

The Defendants now seek an attorney’s fee for the first trial on the theory that they will not be able to present the same evidence to another jury to establish the value of the easement which was originally taken. However, the result of the first trial and the efforts of the attorneys have resulted in the termination of the easement which benefits the Defendants and which, according to the first jury, was worth $767,000.00. Now the issue to be tried is only the value of the easement from the date of the Order of Taking until September 30, 1982, rather than the value of an easement which could exist in perpetuity. The next jury trial of this cause will of necessity be entirely different from that previously tried by the property owners’ attorneys.
The Court finds that the attorneys for the property owners are entitled to be paid a reasonable fee for the services which they rendered in the first trial of this cause and the benefits which resulted, i.e., the termination of the easement, and that said fee should be awarded at this time.

On appeal DOT makes two contentions. First, that any determination of fees can be made only upon conclusion of the eminent domain proceedings, at which time costs are to be assessed as in all other civil actions. Second, that the trial court further erred in finding the defendants were benefitted to the extent of $767,000 and predicating its award of attorneys’ fees on that basis. We find merit to the DOT's contentions.

Section 73.091, Florida Statutes (1981), provides that the petitioner in an eminent domain proceeding “shall pay all reasonable costs of the proceedings in the circuit court, including a reasonable attorney’s fee to be assessed by that court.” In assessing attorney’s fees, section 73.092 requires the court to consider the following criteria:

(1) Benefits resulting to the . client from the services rendered.
(2) The novelty, difficulty, and importance of the questions involved.
(3) The skill employed by the attorney in conducting the cause.
(4) The amount of money involved.
(5) The responsibility incurred and fulfilled by the attorney.
' (6) The attorney’s time and labor reasonably required adequately to represent the client.
However, under no circumstances shall the attorney’s fee be based solely on a percentage of the award.

These statutory criteria clearly contemplate that the fee determination is to be made at the conclusion of the proceedings. See City of St. Petersburg v. Vinoy Park Hotel Co., 354 So.2d 136 (Fla. 2d DCA 1978); Smith v. City of Tallahassee, 198 So.2d 380 (Fla. 1st DCA 1966). The Florida Supreme Court has indicated that costs in eminent domain proceedings should be assessed “as costs are assessed in all other civil actions,” Florida East Coast Railway v. Martin County, 171 So.2d 873, 883 (Fla.), cert. denied, 382 U.S. 834, 86 S.Ct. 79, 15 L.Ed.2d 78 (1965). Of course, costs in other civil actions are assessed at the conclusion of the proceedings when the cause is “determined.” See § 57.021, Fla.Stat. (1981).

Defendants argue that the proceedings as to the original taking by DOT have concluded that they are now entitled to payment of attorneys’ fees. They rely on City of Miami Beach v. Cummings, 266 So.2d 122 (Fla. 3d DCA 1972), cert. denied, 273 So.2d 761 (Fla.1973), as support for their argument. In Cummings the City of Miami Beach had unsuccessfully pursued a condemnation action against the property owners. The Third District held that before -the City could put landowners to the expense of another condemnation proceeding, it would be fair and just to pay the landowners outstanding costs and attorneys’ fees to which they were entitled from the first condemnation suit. Cummings, however, is distinguishable from this case. In Cummings, the city completely abandoned the first proceeding and subsequently instituted a separate and different proceeding. In the present case DOT has not abandoned its action against the defendants. Instead, DOT’s amendment to its complaint served to definitize the duration of the easement. These proceedings are still continuing and, thus, attorneys’ fees may not be awarded until after their completion.

When this action is concluded, the trial court may then award attorneys’ fees to the defendants, pursuant to the guidelines in section 73.092. Clearly, the defendants have received considerable benefit from their attorneys’ services. However, a determination of the extent of that benefit must wait until the conclusion of the proceedings. The court must consider all services which benefitted the defendants. However, it may not rely on the original jury award of $767,000 as the basis for determining the amount of those benefits, because that award was erroneously arrived at due to the court’s failure to admit certain evidence.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

OTT, C.J., and GRIMES, J., concur.


author: DOWNEY, Judge.

text:
    Michael Stanley NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-646.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.
    As Corrected on Denial of Rehearing June 27, 1984.

      Richard L. Jorandby, Public Defender, and Margaret Good, and Anthony J. Calvel-lo, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Michael Stanley Nelson was convicted of the premeditated murder of his wife, Linda Nelson, by drowning on September 12, 1979, and with attempted premeditated murder of Linda Nelson by poison on August 30, 1979. From a judgment and sentence of life imprisonment and a consecutive thirty year term of imprisonment Nelson has perfected this appeal.

On September 12, 1979, Nelson’s wife, Linda, drowned in the bathtub of her home in Delray Beach. Nelson claimed that, when he returned home on the afternoon of September 12th, he found his wife face down in a bathtub of water. He tried to resuscitate her without success and then called the paramedics. Although Nelson said he found an empty valium bottle near her body, an autopsy showed only therapeutic quantities of valium present in the deceased’s body, and the cause of death was determined to be drowning.

Nelson was eventually charged with premeditated murder in the drowning and in a second count with attempted murder by poison. The evidence adduced was sufficient for the jury to find that Linda had been drowned in the bathtub. She had bruises and other marks on her head and face consistent with being caused by human hands and unusually long strings of her hair were found in the clear bathtub water by one of the witnesses. The bathroom was in a state of disarray; while the floor was dry, there were several half-wet bathmats behind the bathroom door. Nelson admitted to an investigating officer that he could have gotten physical with Linda that day trying to get her to straighten up and snap out of her alleged illness. He stated he was the equivalent to a Brown Belt in Karate; he was from a long line of warriors; and he was comfortable with killings. These and other statements militated against the accidental drowning theory. Nelson was described as being very calm, cool, and collected on the evening of Linda’s death. On that very evening he called Linda’s boss and made arrangements to come into the office the next day to discuss Linda’s death benefits. Nelson was aware that he was the beneficiary of'a large life insurance policy on Linda’s life. He also evidenced great concern that Linda’s first husband might participate in her estate.

With reference to the count involving the attempted murder by poisoning, Dr. Weems testified he attended Linda in the hospital on August 30, 1979. Among other things, she was hyperventilating, drooling, and complaining of muscle pain. Some of her symptoms were consistent with poisoning. The juxtaposition of drooling and hyperventilating was unusual. Dr. Ralph Tanz, a pharmocologist, testified that the symptoms exhibited by Linda on August 30, 1979, were consistent with aconitine poison; he knew of no other chemical that would produce such symptoms. In further support of this charge, it was shown that Nelson purchased quantities of a chemical known as aconitine, which is a poisonous chemical, very toxic to the heart. Its ostensible use, according to Nelson, was for a paint he was experimenting with to prevent barnacles on boat bottoms. There was evidence that made this story suspect.

On the attempted murder count, the State introduced similar fact evidence regarding Nelson’s conduct with his first wife, Sherrie Braswell. There was a striking similarity between the illnesses and symptoms suffered by the two women when living with Nelson. The medical evidence showed, for example, that the hospital admissions of the two women reflected both evidencing the same symptoms, nervousness, heart flutter, numbness, tingling and drooling, all of which were shown to be consistent with aconitine poisoning. It was shown that Nelson purchased a large life insurance policy on his and Sherrie’s lives before they were married. Prior to the purchase of that policy Sherrie had never experienced any of the distress symptoms mentioned above. However, thereafter on several occasions she started having nausea, cramps, cardiac arrythmia, numbness, and tingling all over, generally related to occasions when Nelson would furnish her pills. The symptoms required that she be treated at a hospital. Eventually, she canceled the life insurance policy against Nelson’s wish and never had any further such distressful episodes.

Nelson’s first point on appeal contends that the admission of the similar fact evidence was error, since it bore no relevancy to the crimes charged in the present case. On the contrary, we hold that the similar facts were relevant to the charge contained in Count II, attempted murder of Linda Nelson by poison. It was probative of a common design and of his motive for wanting to do away with both women. While the time span between the two attempts is substantial, ten years, the close similarity of symptoms evidenced by the two women, Nelson’s intimate proximity to the intended victims, and the inference that aconitine poison was used renders the time span less a problem. We hold that the evidence relative to Sherrie Nelson incidents was admissible under Section 90.-404(2)(a), Florida Statutes (1979), as proof on the count charging attempted first degree murder of Linda Nelson.

Nelson also contends reversible error was committed by the trial court in denying his motion to sever the two counts. The motion for severance was heard prior to trial in conjunction with Nelson’s objection to the admission of the similar fact evidence. At that hearing counsel for Nelson advised the court that, if the court overruled Nelson’s objection to the similar fact evidence, his motion to sever lost its purpose and he would just as well go to trial on both counts. Since we hold counsel waived his motion for severance, we set out at length the colloquy involved:

MR. LUBIN: Okay. I would like to make the argument — well, I would like to make the argument and preserve that point if you rule that it comes in, with my client’s permission, my decision is made but of course with my client’s permission, I am going to withdraw it and say, “Let’s go to trial with them together.”
If it were error to admit the Williams Rule, it wouldn’t matter whether I got them severed or not. So I would just like to make those arguments and let the Court rule.
THE COURT: Okay.
(LUBIN) I ask that you sever them, but again, not to mislead the Court, if you allow in the Braswell testimony or if the Court of Appeals does, my inclination is to go with both of them at the same time. THE COURT: All right. I am inclined not to grant the severance.

Since we hold that defendant’s counsel waived the motion for severance in view of the court’s ruling on the similar fact evidence, we need not treat the merits of the severance motion.

Nelson’s other points have been giv-. en serious consideration and found to be without merit. No error has been shown in the court’s refusal to recuse defendant’s counsel, Mr. Lubin. The motion was made by the State, not by Nelson. Furthermore, the trial court seriously considered any possible ramifications to Nelson from Lubin’s conduct and specifically advised Nelson of those possibilities. Nevertheless, in the face of that advice, Nelson, who hired Lu-bin as private counsel, expressly waived any objection to Lubin’s continuing in the case.

There was no error in denying Nelson’s motion for discharge based on an alleged violation of his speedy trial rights. Nelson’s counsel waived speedy trial, and Nelson’s presence was not required. State v. Abrams, 350 So.2d 1104 (Fla. 4th DCA 1977).

Finally, the conglomeration of alleged ev-identiary errors does not require reversal. We hold the evidence involved was either relevant, not objected to, or harmless error.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

ANSTEAD, C.J., and DELL, J., concur.


author: COBB, Judge.

text:
    Alonza ROWELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-452.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.
    James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The appellant, Alonza Rowell, was convicted on two counts of burglary of a conveyance, one count of possession of burglary tools and one count of petit theft. The charges stemmed from the burglary of two cars in a shopping mall on the same day.

During the course of the jury trial, the prosecutor queried the arresting officer as to whether he ever attempted to take a statement from the defendant after arrest, and the answer was: “Ah, I never asked him that. I never ... I asked him, but he refused to give me any information as far as....”

At that point, counsel for.the defense intervened with a timely objection and motion for mistrial. See State v. Cumbie, 380 So.2d 1031 (Fla.1980); Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 363 So.2d 331 (Fla.1978). We find that this exchange is “fairly susceptible” to interpretation by the jury as a reference to the defendant’s exercise of his right to remain silent. See Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984).

The appellant relies upon Bennett v. State, 316 So.2d 41 (Fla.1975), and Ford v. State, 431 So.2d 349 (Fla. 5th DCA 1983), for the proposition that any comment on the exercise by the accused of his right to remain silent at time of arrest is reversible error without regard to the harmless error doctrine. In regard to this point, we also note Donovan v. State, 417 So.2d 674 (Fla.1982), and Diguilio v. State, 451 So.2d 487 (Fla. 5th DCA 1984).

The state argues that even if there was a violation of the law regarding comment, it was harmless error because of the overwhelming proof of guilt. The state contends that the harmless error doctrine, rather than the per se reversal rule, should apply based on the recent United States Supreme Court case of U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The state urges that the Florida Supreme Court has adopted the rationale of Hasting by its recent opinion in State v. Murray, 443 So.2d 955 (Fla.1984) and, therefore, by implication, has receded from the automatic reversal rule espoused in Bennett and Donovan.

In Hasting, the United States Supreme Court affirmatively rejected a per se reversal rule, citing to its prior decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), wherein it had declared that even constitutional errors could be deemed harmless in the setting of a particular case. The Court of Appeals had summarily reversed trial convictions in Hasting, declining to rely on the harmless error doctrine on the basis that to do so “would impermissibly compromise the clear constitutional violation of the defendants’ Fifth Amendment rights.” The Supreme Court, in reversing the Court of Appeals, held that the harmless error rule of Chapman may not be avoided by an assertion of supervisory power simply to justify reversal of criminal convictions. The court stated, “[t]he interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise what the court viewed as prosecutorial overreaching.” 103 S.Ct. at 1979.

The Supreme Court then proceeded to review the record in the Hasting case and concluded that it was clear beyond a reasonable doubt that the jury would have returned a verdict of guilty even in the absence of the improper comment by the prosecutor. We reach the same factual conclusion in the instant case.

Subsequent to the Hasting decision, the Florida Supreme Court in Murray reviewed the harmless error doctrine in the context of prosecutorial overzealousness in closing argument where an intemperate attack was made on the credibility of a defendant who had testified during trial. In Justice Shaw’s majority opinion it is stated:

When there is overzealousness or misconduct on the part of either the prosecutor or defense lawyer, it is proper for either trial or appellate courts to exercise their supervisory powers by registering their disapproval, or, in appropriate cases, referring the matter to The Florida Bar for disciplinary investigation. Arango v. State, 437 So.2d 1099 (Fla.1983); Spenkelink v. Wainwright, 372 So.2d 927 (Fla.1979) (Alderman, J., concurring specially); Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982). Nevertheless, prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless. The correct standard of appellate review is whether “the error committed was so prejudicial as to vitiate the entire trial.” Cobb [v. State], 376 So.2d [230] at 232. The appropriate test for whether the error is prejudicial is the “harmless error” rule set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and its progeny. We agree with the recent analysis of the Court in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The supervisory power of the appellate court to reverse a conviction is inappropriate as a remedy when the error is harmless; prosecutorial misconduct or indifference to judicial admonitions is the proper subject of bar disciplinary action. Reversal of the conviction is a separate matter; it is the duty of appellate courts to consider the record as a whole and to ignore harmless error, including most constitutional violations.

443 So.2d at 956.

Murray did not concern a prosecutorial comment on a defendant’s exercise of his right to remain silent. Therefore, its expressed approval of the analysis by the Supreme Court in Hasting is not necessarily a retreat from the per se rule of Bennett and Donovan. Despite our agreement with the logic of Hasting and our reservations in regard to the justice of a per se rule, we are bound at this point in time to adhere to Bennett and Donovan. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). This conclusion is buttressed by the fact that in the recent case of State v. Strasser, 445 So.2d 322 (Fla.1984), released a month after the opinion issued in Murray, the Florida Supreme Court relied on its prior decision in State v. Burwick, 442 So.2d 944 (Fla.1983), which was issued a month before Murray. In Burwick, it was held to be reversible error to admit evidence at trial that a defendant had intelligently exercised his constitutional right to silence after Miranda warnings in the state’s effort to rebut his insanity defense. The Florida Supreme Court recognized the per se rule in Burwick, stating: “There is no dispute that it is reversible error for the prosecution to attempt to impeach a defendant’s alibi testimony by asking on cross-examination why he remained silent at the time of his arrest.” 442 So.2d at 947. Two United States Supreme Court cases are cited in Burwick: Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). Doyle is irrelevant in regard to the applicability of the harmless error rule; it expressly notes that issue was not raised. Hale did not approve a per se rule but confined its holding to the circumstances of that particular case and an express finding of prejudice. Neither Burwick nor Stras-ser refers to Hasting.

The state forcefully argues in its brief that the federal courts have not elevated the Fifth Amendment to the lofty heights afforded to it by the Florida Supreme Court in Bennett and Donovan. The state poses the question:

Why should a mere, unintentional slip of the tongue by a State’s witness ... doom an otherwise proper and lawful conviction to certain reversal despite ironclad testimony and physical and circumstantial evidence which provide unequivocal and uncontroverted proof of the accused’s guilt?

Indeed, this is a difficult question to answer from the standpoint of reason and logic. Perhaps it can only be answered by the acrid and familiar comment on the law by Mr. Bumble in Oliver Twist. Or perhaps more fairly by the observation that bad precedents often derive from noble motives. In any event, the state’s question would be more appropriately directed to the Florida Supreme Court than to us.

Accordingly, we reverse for a new trial but certify the following question to the Florida Supreme Court, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), as one of great public importance:

Has the Florida Supreme Court, by its agreement in State v. Murray, 443 So.2d 955 (Fla.1984), with the analysis of the supervisory powers of appellate courts as related to the harmless error rule as set forth in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), receded by implication from the per se rule of reversal explicated in Donovan v. State, 417 So.2d 674 (Fla.1982)?

REVERSED and REMANDED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, J., concur.


author: PER CURIAM.

text:
    Thomas JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1854.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

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


text:
    David Clifton HALL, Appellant, v. STATE of Florida, Appellee.
    No. 83-1866.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Malloy v. State, 380 So.2d 501 (Fla.2d DCA 1980).

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