author: PER CURIAM. OVERTON, Justice,

text:
    Daniel Lee DOYLE, Appellant, v. STATE of Florida, Appellee.
    No. 62212.
    Supreme Court of Florida.
    Oct. 18, 1984.
    Rehearing Denied Jan. 3, 1985.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was tried by jury and convicted of first-degree murder and sexual battery in the death of Pamela Kipp. The jury recommended a sentence of death which the trial judge imposed. The case is now before this Court on direct appeal pursuant to article V, section 3(b)(1) of the Florida Constitution. We affirm the conviction and the sentence.

Appellant Doyle was a neighbor and relative of the Kipp family, including Pamela Kipp, the victim. On September 5, 1981, he was doing yard work in the Kipp’s yard and later drove his truck which was full of branches and leaves to a nearby area to unload the debris. Witnesses reported seeing Pamela Kipp jogging in the same area at the same time. The victim never returned home. After a search, a skeleton later identified as that of Monica Ruddick was discovered in the area where the defendant had been dumping leaves. Shortly thereafter, the victim’s body was discovered about 200 yards from the area where Doyle had been dumping leaves. Found near the victim’s nude body were a beige carpet and fresh tree clippings as well as ruts in the mud where a vehicle had been stuck. Doyle’s truck had been stuck in the mud in the area the day of the murder and another individual had helped him pull his truck out of the mud.

Before the discovery of the victim’s body, Doyle had been questioned by police since he reportedly was the last person to see the victim. Later, Doyle and his girlfriend went to the police station where he was given his rights and where he gave a tape-recorded statement. Doyle was then confronted with inconsistencies in his story concerning freshness of certain grass clippings at a different location and the date of the presence of a front-end loader at the dump site, after which he made a non-recorded inculpatory statement to the police, with such statement being repeated with modifications in subsequent tape-recorded statements at the county jail. Doyle admitted having sex with the victim and killing her, claiming, however, that he was intoxicated at the time and had no recollection of details of the incident. The victim was found to have been killed by strangulation and to have been sexually battered while still alive. Doyle claimed, in one statement, that he had asked the victim to help him get his truck out of the mud and he attacked her, she fought back, and he then strangled her and had intercourse with her on the carpet in the grass. He also admitted telling his girlfriend on a number of occasions subsequent to the murder that he had killed the victim.

At the suppression hearing, but not at trial, it was reported that Doyle had undergone a hypnosis session after his last taped confession in an attempt to recall further details of the murder. The session lasted an hour and was taped. Allegedly, Doyle admitted the Kipp killing as well as the Ruddick killing, but then recanted and denied killing Monica Ruddick. However, both the tape of this session as well as all notes were lost and never recovered.

Doyle was indicted for the first-degree murder of Pamela Kipp and the sexual battery upon Pamela Kipp with force likely to cause serious personal injury. At trial, he was found guilty of both charges and at the sentencing phase, the jury voted for an advisory sentence of death. The trial court concurred and sentenced Doyle to death.

Appellant’s first issue concerns the lost tape recording of the hypnosis session in which Doyle allegedly again confessed to the Kipp murder. Asserting that this was evidence which the prosecution was required to make available to the defense pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), appellant argues that its unavailability was a denial of due process which necessitates dismissal of the charges against him. The Brady rule, however, applies only to evidence which is favorable to the defendant and which is material to issues of guilt and punishment. This court has held that due process requirements are fulfilled “where the contents of a lost or destroyed tape recording would not have been beneficial to the accused, thus demonstrating a lack of prejudice.” State v. Sobel, 363 So.2d 324, 328 (Fla.1978). In light of the three taped confessions appellant made before undergoing hypnosis and in light of testimony that appellant again confessed to the Kipp murder during that hypnosis session, we find that such a showing has been made and appellant was not denied any measure of due process on this ground.

Appellant further contends that his fifth and sixth amendment rights were violated during interrogation and the confessions he made as a result of that interrogation should therefore have been suppressed. We find no reason to question the trial judge’s findings that Doyle was given adequate Miranda warnings; see Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); and that he was capable of understanding the significance of those warnings; Ross v. State, 386 So.2d 1191 (Fla.1980); Fields v. State, 402 So.2d 46 (Fla. 1st DCA 1981). Further, appellant’s claim that he was denied access to an attorney during questioning is a personal one which must be invoked by the defendant in some unambiguous manner. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Craig, 237 So.2d 737 (Fla.1970). The record indicates that Doyle’s only mention of an attorney occurred early in the first interrogation session when he remarked that the attorney who had represented him in an earlier matter was currently out of town. Although his girlfriend later attempted to reach an attorney for Doyle, she was unable to testify that Doyle had asked her to do so. At no time in the questioning did Doyle indicate an unwillingness to answer questions in the absence of counsel. On these facts it is impossible to find any indication that appellant wished to deal with the police only through counsel, as is necessary to invoke the protection of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 S.Ct. 378 (1981). Waterhouse v. State, 429 So.2d 301 (Fla.), cert. denied, — U.S. —, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983).

Appellant’s assertion that certain remarks made by the trial judge during voir dire and in excusing an allegedly antagonistic witness so prejudiced the proceedings as to require a mistrial is without merit. Read in context, these remarks do not appear to have been error, but even were we to find error, there could be no finding of prejudice sufficient to require a new trial. Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977); Hayes v. State, 368 So.2d 374 (Fla. 4th DCA), cert. denied, 378 So.2d 345 (Fla.1979).

We also find no error in the trial judge’s refusal to grant a mistrial for alleged juror misconduct. During a court recess after the state had presented its evidence, an unidentified juror happened to encounter Doyle’s attorney in a corridor and said, “Good luck. You’re going to need it.” Although denying the motion for mistrial, the judge did give a curative cautionary instruction to the jury which the attorney, without relinquishing his demand for mistrial, conceded was satisfactory. The determination of whether substantial justice warrants the granting of a mistrial is within the discretion of the trial court. Evers v. State, 280 So.2d 30 (Fla. 3d DCA 1973). Dealing with the conduct of jurors is likewise left to the sound discretion of the court. Walker v. State, 330 So.2d 110 (Fla. 3d DCA), cert. denied, 341 So.2d 1087 (Fla.1976). We find no abuse of that discretion here.

Finally, appellant challenges the imposition of the death penalty on grounds that the court failed to find mitigating circumstances and improperly found aggravating factors. In the penalty phase of the trial, the defense presented evidence concerning Doyle’s low intelligence, classed as “dull normal” and “borderline retarded” by expert witnesses, and of emotional disturbance arising from the death of his brother in Doyle’s arms in a hunting accident the previous year. Although the sentencing order did mention that defendant had been found competent to stand trial, it is clear from the context that this is not the standard the court used to determine mitigation. Rather, the court obviously rested its determination on the fact that Doyle had been able to attend school, hold jobs and function in society. This Court has held that where the defense presented evidence of mitigating circumstances and where the trial court considered that evidence in imposing sentence, “mere disagreement with the force to be given such evidence is an insufficient basis for challenging a sentence.” Quince v. State, 414 So.2d 185, 187 (Fla.), cert. denied, 459 U.S. 895, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982). We find no error here.

The trial court found three aggravating factors: the murder was committed in the course of a sexual battery; the murder was especially heinous, atrocious and cruel; and the murder was committed to avoid lawful arrest. These are factors set forth in the Florida death penalty statute. The first two were properly found on the evidence before the court. Magill v. State, 428 So.2d 649 (Fla.), cert. denied, — U.S. —, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983); Martin v. State, 420 So.2d 583 (Fla.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983); Stevens v. State, 419 So.2d 1058 (Fla.1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983).

In particular, the finding that the murder was heinous, atrocious and cruel was based on the evidence that the victim died of strangulation which occurred over a period of up to five minutes and that prior to losing consciousness the victim was aware of the nature of the attack and had time to anticipate her death. Murder by strangulation has consistently been found to be heinous, atrocious and cruel because of the nature of the suffering imposed and the victim’s awareness of impending death. Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982); Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976).

Furthermore, the court found that Doyle had expressed no remorse for the killing and considered that as evidence that the crime was heinous, atrocious and cruel. Lack of remorse is not a separate aggravating factor under the statutory scheme, and subsequent to this trial, this Court ruled that lack of remorse was not to be considered as in any way affecting the finding of aggravating circumstances. Pope v. State, 441 So.2d 1073 (Fla.1984). Nonetheless, disregarding that language in the sentencing order, we find the evidence on the record before us was sufficient to prove this factor beyond a reasonable doubt.

As for the remaining aggravating factor, the court based its finding that the murder was committed to avoid lawful arrest on its finding of fact: The victim knew her attacker and would report the rape. In a prior case, Doyle had been given a suspended five-year sentence which would be imposed if he were convicted of any crime. The trial court therefore inferred that the murder was committed to prevent the report of the rape. We have consistently held that where the victim is not a law enforcement officer, the state must prove beyond a reasonable doubt that the dominant motive for the murder was the elimination of witnesses. Menendez v. State, 368 So.2d 1278 (Fla.1979); Riley v. State, 366 So.2d 19 (Fla.1978), cert. denied, 459 U.S. 981, 103 S.Ct. 317, 74 L.Ed.2d 985 (1982). It is a tragic reality that the murder of a rape victim is all too frequently the culmination of the same hostile-aggressive impulses which triggered the initial attack and not a reasoned act motivated primarily by the desire to avoid detection. Based on the facts in the record before this Court, we hold that the state has not proven this aggravating factor beyond a reasonable doubt.

The trial court properly found two aggravating factors and no mitigating circumstances. The death penalty was appropriate. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

Accordingly, Doyle’s conviction for first-degree murder and the imposition of the death penalty are affirmed.

It is so ordered.

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

OVERTON, J., concurs in the conviction but dissents from the sentence with an opinion, in which McDONALD, J., concurs.

OVERTON, Justice,

concurring in part, dissenting in part.

I concur with the conviction but find that under the dictates of the United States Supreme Court decision in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and our decisions in Mines v. State, 390 So.2d 332 (Fla.1981), Ferguson v. State, 417 So.2d 631 (Fla.1982), and Ferguson v. State, 417 So.2d 639 (Fla.1982), this cause must be remanded to the trial judge for resentencing.

In Eddings, the 16-year-old defendant was seriously emotionally disturbed and had been neglected and physically abused. In sentencing, the trial judge refused to consider in mitigation Eddings’ family history and emotional disturbance. The Supreme Court reversed the death sentence, concluding that these facts constituted valid mitigating circumstances and could not be excluded from consideration by the sentencing judge. The Court stated:

[I]t is not disputed that he was a juvenile with serious emotional problems, and had been raised in a neglectful, sometimes even violent, family background .... [JJust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing.

Id. 455 U.S. at 116, 102 S.Ct. at 877. The Court remanded for a new sentencing procedure. In the instant case, similar circumstances were presented. The record reflects that the appellant was 21 years old; that he had an IQ of between 70 and 80, and was borderline retarded; that he was suffering from organic brain defects, which caused dyslexia, and had emotional problems; that he had been enrolled in handicapped classes; and that his mental condition was chronic.

Under our death sentence process, two mitigating circumstances relating to mental condition are set forth in section 921.-141(6)(b) and (f), Florida Statutes (1983). In considering these statutory mitigating circumstances, the trial judge found as follows:

B. The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. [§ 921.141(6)(b).]
CONCLUSION
There is no mitigating circumstance under this paragraph.
F. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. [§ 921.141(6)(f).]
FACT
There has been evidence that the defendant had in the past held jobs and attended school. The doctors that were ordered to examine the defendant determined he was sane and able to aid in his defense and this Court found him competent to stand trial.

(Emphasis added.)

In my view, this record clearly indicates that the trial judge applied the wrong standard in determining the presence or absence of the above mitigating circumstances. This case cannot be distinguished from our decisions in Mines and the two Ferguson cases. The sentencing order reflects that the trial judge “misconceived the standard to be applied,” as did the judge in the Ferguson cases, when he utilized the tests for sanity at the time of the offense and competency to stand trial in determining the applicability of section 921.141(6)(b) and (f). See 417 So.2d at 638; 417 So.2d at 645.

I conclude that mitigating circumstances under section 921.141(6)(b) and (f) were established in this record by unrefuted testimony. Although these mitigating circumstances do not conclusively override the aggravating circumstances found by the trial judge, under Eddings, Mines, and the Ferguson cases, the trial judge must consider mitigating evidence that is established in the record. The judge is free, however, to determine the weight to be accorded it. The evidence in this record requires that this cause be remanded for resentencing with direction that the trial judge evaluate mitigating evidence of the appellant’s background and mental condition.

McDONALD, J., concurs.

      . The trial court reserved sentencing on the sexual battery charge. Though not asked to do so, we have studied the record and found that Doyle’s conviction for sexual battery was proper. We thus affirm that conviction.

      . Appellant also filed an amended motion for new trial on the basis of jurors’ remarks overheard in a restaurant before the close of the case. The jurors allegedly stated that they were certain of Doyle’s guilt and could tell he had committed the murder just by looking at him. The allegations were unsupported in any manner in the motion and appellant conceded in oral argument that the issue had not been properly preserved for appeal. Thus we do not consider it.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    Mark D. MIKENAS, Appellant, v. STATE of Florida, Appellee.
    No. 64317.
    Supreme Court of Florida.
    Nov. 1, 1984.
    Rehearing Denied Jan. 3, 1985.

      Allan van Gestel, Joseph L. Cotter and Margaret R. Hinkle of Goodwin, Procter & Hoar, Boston, Mass., for appellant.
    Jim Smith, Atty. Gen., and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appel-lee.
   ADKINS, Justice.

We have before us a direct appeal from the denial of a motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

In 1978, appellant was convicted of first-degree felony murder and of second-degree murder. The facts of the case are set forth in Mikenas v. State, 367 So.2d 606 (Fla.1979). Appellant was sentenced to death for the first-degree felony murder and life imprisonment for the second-degree murder. Upon direct appeal, this Court affirmed the convictions but remanded for resentencing without further jury deliberations, because the trial judge considered a nonstatutory aggravating factor. Id. Appellant was again sentenced to death. This Court affirmed the sentence of death. Mikenas v. State, 407 So.2d 892 (Fla.1981). Certiorari was sought in the United States Supreme Court on the issue of nonstatutory aggravating evidence being presented. The petition was denied. Mikenas v. State, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). Appellant appeared before the Clemency Board in January, 1983. The motion for post-conviction relief followed. An evidentiary hearing was held on June 22 and June 23, 1983, and relief was denied on August 30, 1983. This appeal followed.

Appellant alleged the following six grounds for relief in his rule 3.850 motion: 1) that appellant’s sentence of death was based on an invalid guilty plea; 2) that appellant was denied effective assistance of counsel; 3) that appellant’s death sentence was excessive and disproportionate; 4) that the Florida capital sentencing statute is unconstitutional; 5) that Florida procedures allowing rebuttal of mitigating circumstances violate the due process clause; 6) that appellant’s death sentence was based on improper application of aggravating and mitigating circumstances and inadequate findings of fact. Appellant’s fourth ground for relief is without merit. His third, fifth and sixth grounds stated are issues which either were or could have been raised on direct appeal. Those issues are not cognizable through collateral attack and therefore are precluded from our consideration. Demps v. State, 416 So.2d 808, 809 (Fla.1982); Meeks v. State, 382 So.2d 673, 675 (Fla.1980).

However, appellant does raise two issues which are appropriate for collateral attack. He first alleges that his sentence of death was based on an invalid guilty plea. More specifically, he contends that his guilty plea was not knowing and voluntary. This Court has held that the voluntariness of a plea is a recognized ground for relief in a 3.850 proceeding. See Robinson v. State, 373 So.2d 898 (Fla.1979). The appellant has the burden of showing his plea was not knowingly and voluntarily entered. State v. Gomez, 363 So.2d 624 (Fla. 3d DCA 1978), overruled on other grounds, Hallman v. State, 371 So.2d 482 (Fla.1979).

Appellant argues his plea was not knowing and voluntary in four respects. He argues his plea was involuntary, 1) because of his physical and mental condition; 2) because he believed a plea bargain had been reached; 3) because he was not informed of the consequences of his plea; and, 4) because he received ineffective assistance of counsel.

Regarding his first point, the record demonstrates that appellant understood what was going on and was able to assist in his own defense. Furthermore, appellant could and did talk intelligently with counsel about his plea and fully understood the nature and consequences of that plea.

Concerning appellant’s second point, the law is that a plea of guilty must be voluntarily made by one competent to know the consequences of that plea and must not be induced by promises, threats or coercion. Hooper v. State, 232 So.2d 257 (Fla. 2d DCA 1970); Young v. State, 216 So.2d 497 (Fla. 2d DCA 1968); and Reddick v. State, 190 So.2d 340 (Fla. 2d DCA 1966). The record shows that appellant’s plea was not the result of promises, threats or coercion.

As for appellant’s third point, due process requires that a court accepting a guilty plea carefully inquire into its voluntary nature. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274 (1969). When appellant entered his plea, Florida Rule of Criminal Procedure 3.170(j) set forth the procedure to be followed to satisfy the due process requirements enunciated in Boykin. Under Florida Rule of Criminal Procedure 3.170(j), trial courts are charged with determining on the record “that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness.... ” We find that the April 12th plea hearing sufficiently complied with this rule. The plea was taken in open court and was properly recorded. The record reflects that appellant understood the nature of the charges against him and the consequences of his plea. Contrary to appellant’s assertions, the plea hearing was not superficial and the trial judge asked questions in such a manner that appellant would fully understand the significance of his plea and of its voluntariness.

Regarding appellant’s final point, it is axiomatic that an attorney is obligated to advise his client of all plea offers, the choice of alternatives available and the course of action he deems appropriate under the circumstances. See Fla.R.Crim.P. 3.171. Counsel has fulfilled these requirements in the instant case. Accordingly, we hold that appellant has failed to establish that his plea was involuntary for any one of the allegations made in his 3.850 petition.

Appellant next alleges that he was denied effective assistance of counsel during the course of the penalty trial. In his claim of ineffective assistance appellant alleges, 1) counsel failed to investigate, prepare and present critical evidence; 2) counsel failed to move properly for the recusal of the sentencing judge; 3) counsel breached his duty to introduce nonstatutory mitigating evidence; 4) counsel made damaging concessions, failed to raise objections adequately and failed to request jury instructions; 5) counsel permitted the entry of the guilty plea without any assurance that the plea would result in tangible sentencing benefits; and, 6) counsel’s acts and omissions prejudiced appellant.

Since the filing of this appeal, the Supreme Court of the United States has rendered its decision in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), enunciating the standards to be applied in determining whether a defendant was denied his sixth amendment right to effective assistance of counsel. The test set forth in that case does not “differ significantly” with the test espoused by this Court in Knight v. State, 394 So.2d 997 (Fla.1981); Jackson v. State, 452 So.2d 538, 535 (Fla.1984). See also Downs v. State, 453 So.2d 1102 (Fla.1984).

In Strickland, the United States Supreme Court held that a defendant’s claim of ineffective assistance of counsel has two components:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

104 S.Ct. at 2064.

In explaining the appropriate test for proving prejudice, the Court stated that “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 2068.

The Court further noted that:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982), 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783 (1982).

Id. at 2065.

In applying the principles of Strickland v. Washington to this case, we find that appellant’s claim of ineffective assistance of counsel must fail. The facts developed in the record clearly reflect that the conduct of appellant’s counsel was not unreasonable under the circumstances. The record shows that counsel properly investigated and prepared the case and that his strategy and decisions were not outside the range of professionally competent counsel. Even if this Court had found counsel’s performance to be deficient, we would also have concluded that the deficient performance did not prejudice the appellant.

Accordingly, the denial of appellant’s 3.850 motion is hereby affirmed.

It is so ordered.

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


author: BOYD, Chief Justice.

text:
    Timothy C. PALMES, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Florida Department of Corrections, Respondent. Timothy C. PALMES, Appellant, v. STATE of Florida, Appellee.
    Nos. 66099, 66105.
    Supreme Court of Florida.
    Nov. 2, 1984.

      Tom McCoun of Louderback, McCoun & Helinger, St. Petersburg, for petitioner/appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for respondent/appellee.
   BOYD, Chief Justice.

Timothy C. Palmes, a state prisoner under sentence of death, has filed a petition for writ of habeas corpus with this Court and an appeal of the denial, by the circuit court in which he was tried and sentenced, of his motion to set aside judgment and sentence under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const. In connection with these two proceedings, he seeks a stay of the scheduled execution of sentence. Because we find that the matters raised in the petition and the appeal can be satisfactorily resolved on an expedited basis, we deny the motion for stay of execution. We deny the petition for habeas corpus and affirm the denial of post-conviction relief.

Palmes was convicted of murder in the first-degree and was sentenced to death. On appeal, this Court affirmed both the conviction and the sentence. Palmes v. State, 397 So.2d 648 (Fla.1981). The United States Supreme Court denied Palmes’ petition for review of the judgment. Palmes v. Florida, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). Later Palmes returned to the court in which he was tried and sentenced and sought to have his conviction and sentence set aside pursuant to rule 3.850. The court denied relief and this Court affirmed its judgment. Palmes v. State, 425 So.2d 4 (Fla.1983). Palmes also sought to challenge his conviction and sentence in federal court. A United States District Court found no ground to interfere with our state court’s judgment, and this decision was affirmed on appeal. Palmes v. Wainwright, 725 F.2d 1511 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984).

Habeas Corpus

In his habeas corpus petition, Palmes asserts that in deciding his original appeal this Court failed to provide proportionality review to ensure that his sentence of death was appropriate. Specifically he argues that the state’s chief witness against him was equally as guilty of the murder as he was and that her immunization from prosecution constituted such a disparity of treatment of equally guilty accomplices as to violate the principle of proportionality.

In essence this argument asks us to reconsider a matter that was raised and resolved when Palmes’ original appeal was decided by this Court. As we said when we denied relief on his previous post-conviction motion, the original affirmance of the sentence of death implicitly found the sentence appropriate to the crime under proportionality principles. See Sullivan v. State, 441 So.2d 609 (Fla.1983); Booker v. State, 441 So.2d 148 (Fla.1983); Messer v. State, 439 So.2d 875 (Fla.1983).

Petitioner’s argument misapprehends the function of proportionality review. Proportionality review compares the sentence of death with other cases in which a sentence of death was approved or disapproved. Disparate treatment of accomplices which may be a ground of mitigation is an entirely separate matter. Prosecuto-rial discretion in the granting of immunity for the purpose of investigating and obtaining testimony about crimes does not render death sentences imposed on convicted persons arbitrary. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Moreover, although the evidence given by the witness would have shown her to be an aider and abettor had she been charged, it also showed that she did not wield a murder weapon and was not present at the scene of the murder. Therefore petitioner’s premise of equal culpability is without basis in law or fact.

Rule 3.850 Appeal

Palmes’ motion to set aside judgment and sentence raises four issues concerning his trial and sentencing. Among the four, three of the contentions refer to alleged errors which, even if meritorious, would be ordinary procedural errors which must be raised on appeal if they are to be raised at all. Eg., Messer v. State, 439 So.2d 875 (Fla.1983); Thompson v. State, 410 So.2d 500 (Fla.1982). The three issues falling into this category are: (1) whether a juror with conscientious scruples against capital punishment was improperly excused after the trial was delayed due to the juror becoming ill; (2) whether the trial court deprived appellant of his right to a public trial in closing the courtroom to the public during the testimony of a seven-year-old witness for the state; and (3) whether the practice of instructing the jury on the legal definitions of all degrees of homicide violated the eighth amendment on the ground that it is conducive to arbitrary results.

None of these three issues calls into question the fundamental fairness of the trial, the reliability of the determination of guilt, or the propriety of the sentence of death. There was no objection at trial to the dismissal of the juror who had become ill, and no indication that the views she expressed during voir dire had anything to do with her dismissal. There was no objection to closure of the trial during the testimony of,the very young witness, and appellant has cited no authority showing that such a limited deviation from the principle of open trial violates his constitutional rights. Instructing the jury on all the lesser included offenses of first-degree murder regardless of the evidence could only have benefitted appellant; the fact that such a practice might lead to improper jury pardons for other offenders just as guilty of capital murder as appellant was provides no ground to relieve him of his conviction or sentence.

Appellant’s remaining argument is that before trial the state withheld information that would have been helpful to the defense. Unlike the three previously waived contentions discussed above, a properly made out claim of suppression of evidence is usually considered a fundamental matter that can be raised by collateral challenge to a conviction. On the merits of appellant’s claim, however, we find it to be completely without merit.

Appellant says that the state not only granted immunity to the witness previously referred to, but also used promises of special assistance and a threat to deprive her of custody of her child in order to induce her to testify and that these threats and promises were not disclosed to the defense before trial. The defense had full opportunity to impeach the witness on the ground of her participation in the crime and her immunity from prosecution. Appellant argues that the existence of the alleged threats and promises would have given him additional material for attacking the credibility of the witness.

We find that the information, even if factually substantiated and not already known to the defense at the time of trial, fails the crucial test of “materiality” as expressed in United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). The information would only have added marginally to the defendant’s ability to impeach the witness and was not material to the fundamental question of guilt or innocence. Failing the test of materiality, the issue does not present a question of fundamental error.

We therefore affirm the circuit court’s denial of the motion for post-conviction relief.

As was indicated above, we also deny the petition for habeas corpus and deny the motion for stay of execution.

It is so ordered.

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


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Robert W. BOWLES, Jr., Respondent.
    No. 62660.
    Supreme Court of Florida.
    Nov. 29, 1984.
    John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    Laurence J. Pino, Orlando, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on the complaint of The Florida Bar and the report of the referee recommending that Robert W. Bowles, Jr. be suspended from the practice of law for eight months. Neither the bar nor Bowles has petitioned for review. We have jurisdiction. Art. V, § 15, Fla. Const.

The bar’s complaint charged Bowles with five counts of misconduct. Count I alleged that Bowles had violated Florida Bar Code of Professional Responsibility Disciplinary Rules 6-101(A)(3), 7-101(A)(2), and 7-101(A)(3) while representing a client in a bankruptcy proceeding. Count II alleged his violations of disciplinary rules 2-101(A), 2-101(B)(l), (2) and (3); 2-106(A), 9-102(B)(3) and (4), and Florida Bar Integration Rule 11.02(4) by using improper advertising and mishandling the representation and funds of a client seeking a dissolution. Count III alleged that Bowles had violated disciplinary rules 6-101(A)(3), 7-101(A)(l), 7-101(A)(2), and 7-101(A)(3) by mishandling another dissolution action. Count IV alleged violations of disciplinary rules 6-101(A)(1), 6-101(A)(2), and 6-101(A)(3) by Bowles in mishandling a real estate matter entrusted to him. Count V alleged that Bowles had violated disciplinary rules 2-101(A), 2-101(B)(2), 2-101(B)(3), 2-101(B)(6)(c), 6-101(A)(3), and 7-101(A)(2) by using improper advertising and mishandling a third dissolution.

Based upon the pleadings and evidence, the referee recommended that Bowles be found guilty of the violations charged in Counts II through V. The referee recommended that Bowles be suspended for eight months, pay the costs of these proceedings, and make restitution to two clients. We adopt the referee’s findings and approve his recommendations.

We therefore suspend Robert W. Bowles, Jr. from the practice of law in Florida for eight months and thereafter until he shall prove his rehabilitation. The suspension shall be effective January 2, 1985, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. He shall also make restitution of $293.00 to Mrs. Judity Reed and $70.00 to Mrs. Bertha Kipp. Costs in the amount of $3,168.73 are assessed against Bowles.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Peter Kent SPRIGGS, Respondent.
    No. 63519.
    Supreme Court of Florida.
    Dec. 6, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    Philip S. Parsons, Tallahassee, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Peter Kent Spriggs, a member of The Florida Bar is presently before us on complaint of The Florida Bar and report of referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Integration Rule of The Florida Bar 11.09(1) has been filed.

A stipulation of facts was entered into and filed before the referee by The Florida Bar and the respondent and the referee adopted the stipulation as the Finding of Fact in this cause.

The referee recommended that respondent be found guilty of violating article XI, Rule 11.02(3)(a) of the Integration Rule of The Florida Bar and Disciplinary Rules 2-106(B) and 7-101(A)(3) of The Florida Bar’s Code of Professional Responsibility and that he receive a public reprimand for these violations.

Having carefully reviewed the record, we approve the findings and recommendations of the referee. Publication of this opinion in Southern Reporter will serve as the public reprimand.

Costs in the amount of $469.33 are hereby taxed against respondent.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Betty Owen STINSON, Respondent.
    No. 63520.
    Supreme Court of Florida.
    Dec. 6, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    Gayle S. Swedmark, Tallahassee, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Betty Owen Stinson, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and report of referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Integration Rule of The Florida Bar 11.09(1) has been filed.

A stipulation of facts was entered into and filed before the referee by The Florida Bar and the respondent and the referee adopted the stipulation as the Finding of Fact in this cause.

The referee recommended that respondent be found guilty of violating article XI, Rule 11.02(3)(a) of the Integration Rule of The Florida Bar and Disciplinary Rules 2-106(B) and 7-101(A)(3) of The Florida Bar’s Code of Professional Responsibility and that she receive a public reprimand for these violations.

Having carefully reviewed the record, we approve the findings and recommendations of the referee. Publication of this opinion in Southern Reporter will serve as the public reprimand.

Costs in the amount of $388.33 are hereby taxed against respondent.

It is so ordered.

ADKINS, A.C.J., and OVERTON, ALDERMAN, MCDONALD and EHRLICH, JJ., concur.


author: OVERTON, Justice.

text:
    In re GUARDIANSHIP OF D.A.McW., A Minor. Emma NERO, Petitioner, v. Albert McWHITE, Respondent.
    No. 63712.
    Supreme Court of Florida.
    Dec. 6, 1984.

      Frank E. Maloney, Jr., Macclenny, for petitioner.
    Mitchell B. Luber, Fort Lauderdale, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as In re Guardianship of D.A.McW., 429 So.2d 699 (Fla. 4th DCA 1983), in which the district court held that the custody rights of a natural father of a child born out of wedlock must prevail over the rights of the child’s maternal grandmother when it is determined that the father is a fit person for custody, unless it is shown that such custody will be detrimental to the child’s welfare. We find conflict with Scott v. Singleton, 378 So.2d 885 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we approve the decision of the district court.

The record reflects that the child, D.A. McW., was born to the respondent, Albert McWhite, and Vicky Nero, daughter of the petitioner, Emma Nero. Although McWhite and Vicky were never married, they had maintained a longstanding relationship and McWhite is represented to be the child’s father on the child’s birth certificate, in a hospital acknowledgment form filed at birth, on the child’s baptismal certificate, in the records of the Florida Department of Health and Rehabilitative Services, and in the records of the United States Social Security Administration. When Vicky died in an automobile accident, both McWhite and Emma Nero, the maternal grandmother, petitioned for appointment as custodian and guardian of the child.

At trial, McWhite testified that he and Vicky had planned to marry and that he had cared for the child regularly since the child was three months old. Specifically, McWhite claimed that he had taken care of the child on weekdays while the mother was attending college. Further, McWhite testified that he had provided for some of the child's medical needs, had provided some food and clothing, and had made payments to the Department of Health and Rehabilitative Services for the child’s benefit. Emma Nero testified that the child had lived with her in her house since birth and explained how she had eared for the child. The trial court determined that McWhite was fit to have custody, but concluded that, although it recognized

the putative father’s interest and legal rights to claim custody and guardianship pursuant to the United States Supreme Court case of Stanley v. Illinois, 405 U.S. 645 [92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ] ... the best interest of the minor child will be served by giving custody and guardianship of person and property to the maternal grandmother.

The trial court reasoned that “the maturity of the grandmother must be taken into consideration in addition to the past care and extreme interest that the grandmother has placed in this child.” In addition, the court found that “the grandmother, in conjunction with the deceased natural mother, has raised this child since birth and that the child has, in fact, resided in the Nero home for his entire life.”

On appeal, the district court reversed the award of custody and, in a thorough opinion, noted the personal involvement of the natural father with the child and emphasized the custody rights of a natural parent as opposed to the rights of a third person. The district court correctly articulated the test to be applied in a custody dispute between two natural parents and distinguished it from the test applicable to a custody dispute between a natural parent and a third party. When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child. When the custody dispute is between a natural parent and a third party, however, the test must include consideration of the right of a natural parent “to enjoy the custody, fellowship and companionship of his offspring .... This is a rule older than the common law itself.” State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957). In Reeves we held that in such a circumstnace, custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child. We explained what would constitute detriment to the child and approved a temporary grant of custody to the grandparents because of the father’s temporary inability to care for the children after the mother's death. We cautioned, however, that the father would be entitled to custody once his ability to care for the children was established. Id. at 20-21.

In the instant case, the district court remanded with directions that the trial court award custody to the natural father and correctly stated that there is strong public policy which exists in this state in favor of the natural family unit ... [and] a natural parent of a child born out of wedlock should be denied custody only where it is demonstrated that the parent is disabled from exercising custody or that such custody will, in fact, be detrimental to the welfare of the child. 429 So.2d at 703-04 (footnote and citation omitted). We agree with this statement of the law and find the opinion of the district court is fully consistent with prior decisions of this Court. To hold otherwise would permit improper governmental interference with the rights of natural parents who are found fit to have custody of and raise their children.

The district court in the instant case recognized apparent conflict with Singleton on the issue of a natural parent’s right to custody of a child. Singleton is disapproved to the extent that it did not address the appropriate test to determine the custody rights of a natural parent as opposed to the rights of a third party. We do not disapprove the result in Singleton because the facts of that ease are distinguishable. We observe that the children in Singleton had resided almost exclusively in the grandparent’s home for six years prior to the natural mother’s death. In addition, it appears that the natural father in Singleton had virtually no involvement with the children during that time. We recognize that the First District Court of Appeal, in Pape v. Pape, 444 So.2d 1058 (Fla. 1st DCA 1984), recently receded, in part, from its decision in Singleton.

Accordingly, we fully approve the district court opinion in the instant cause.

It is so ordered.

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


text:
    POLK COUNTY, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, et al., Appellees. LEON COUNTY, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, et al., Appellees.
    Nos. 63875, 63892.
    Supreme Court of Florida.
    Dec. 6, 1984.

      Irvin S. Cowie, Monte J. Tillis, Jr., Mark F. Carpanini and Dawn Grant Kahre, Bar-tow, for Polk County.
    F.E. Steinmeyer, III, County Atty., and 0. Earl Black, Jr., Asst. County Atty., Tallahassee, for Leon County.
    William S. Bilenky, Gen. Counsel and Paul Sexton, Associate Gen. Counsel, Tallahassee, for Florida Public Service Commission.
    Roy C. Young and Claire A. Duchemin of Young, van Assenderp, Varnadoe & Benton, Tallahassee, for Orlando Utilities Commission and City of Lakeland.
    Frederick M. Bryant of Moore, Williams & Bryant, Tallahassee, and Davisson F. Dunlap, Jr. of Pennington, Wilkinson & Dunlap, Tallahassee, for City of Tallahassee.
    Ann Carlin, Office of the City Atty., Gainesville, amicus curiae for City of Gainesville and joins in brief of appellees.
    Frederick M. Bryant and Davisson F. Dunlap, Jr. of Pennington, Wilkinson & Dunlap, Tallahassee, amicus curiae for City of Moore Haven, City of Wauchula, Lake Worth Utilities Authority, City of Blounts-town, City of Alachua and City of Bushnell and joins in brief of appellees.
   OVERTON, Justice.

These consolidated cases are before us on petitions for review of action of the Florida Public Service Commission. We have jurisdiction. Art. V, § 3(b)(2), Fla. Const.

The question presented concerns the validity of Florida Administrative Code Rule 25-9.525. The rule, adopted by the Public Service Commission after giving proper notice and conducting public hearings, permits a municipal electric utility to impose a surcharge on customers outside of its corporate limits equal to the service tax imposed on customers within its corporate limits. Appellants challenge the rule on three grounds and allege that: (1) the rule is beyond the jurisdiction and authority of the Public Service Commission; (2) the rule improperly authorizes a municipality to impose a tax on persons beyond its corporate limits; and (3) the action of the commission in adopting the rule is not supported by competent, substantial evidence. For the reasons expressed below, we reject each of these contentions and find that the commission acted properly and within its prescribed authority in adopting the rule.

The appellants, Polk and Leon ■ Counties, first contend that the rule is beyond the authority and jurisdiction of the commission. Appellants argue that the rule represents an attempt by the Public Service Commission to regulate the dollar amounts charged by municipal utilities, and that this constitutes an invalid regulation of utility rates. We disagree with this characterization. It is true that the commission has no authority to regulate specific dollar amounts charged for a specific service. City of Tallahassee v. Mann, 411 So.2d 162 (Fla.1981); Amerson v. Jacksonville Electric Authority, 362 So.2d 433 (Fla. 1st DCA 1978). We find, however, that the rule in question operates to regulate “rate structure” and is, therefore, within the jurisdiction and authority of the commission. As we stated in Mann,

there is a clear distinction between “rates” and “rate structure” though the two concepts are related. “Rates” refers to the dollar amount charged for a particular service or an established amount of consumption. Rate structure refers to the classification system used in justifying different rates.

411 So.2d at 163 (citation omitted).

The rule in this case regulates only the relative rate levels charged to different classes of customers. It mandates that, if a public service tax is levied by a municipality on utility customers residing in the municipality limits, the municipality may impose an equivalency surcharge upon municipal electricity customers residing outside of the municipality. The rule does not mandate a surcharge and does not set the dollar amount of a surcharge if one is, in fact, imposed. Thus, it is clear that the rule regulates rate structure and not rates.

This holding is consistent with our recent decision in a related case, City of Tallahassee v. Public Service Commission, 441 So.2d 620 (Fla.1983). In that case we affirmed an order of the commission which required the city to eliminate a fifteen percent surcharge imposed on non-resident utility customers. The commission determined that the surcharge was not justified and ruled that a city could impose an out-of-city surcharge equal to the in-city surcharge. We agreed and found that “such a surcharge would not be unduly discriminatory.” Id. at 624.

Appellants’ second claim alleges that the rule authorizes a municipality to impose a tax on non-residents in violation of the due process clauses of the constitutions of the State of Florida and the United States and the equal protection clause of the constitution of the United States. We reject this contention. This Court, in upholding an analogous surcharge authorized by section 180.191, Florida Statutes (1973), held that a twenty-five percent surcharge on non-resident municipal water customers was not unreasonable, discriminatory, or unconstitutional. Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976). The statute allowed the twenty-five percent surcharge, but limited the rates charged non-residents to not more than fifty percent in excess of the rates charged residents. A public hearing on the rates charged was required only if the surcharge exceeded twenty-five percent. We find that the surcharge authorized by the rule in the instant case is much more reasonable than the one authorized by section 180.191. The rule provides for a more equitable surcharge and results in equal overall charges to both residents and non-residents. Moreover, persons challenging the imposition of the surcharge are entitled to a public hearing, regardless of the amount of the surcharge. In addition, application of the “end-result” test to the rate structure authorized by this rule results in equality of rates charged all customers. See General Telephone Co. v. Carter, 115 So.2d 554 (Fla.1959).

Appellants’ third claim that the action of the commission is not supported by competent, substantial evidence, revolves around alleged deficiencies in the commission’s economic impact statement which was submitted in support of the rule. We have previously held that this Court will not reweigh or re-evaluate the evidence presented to the commission, but should only examine the record to determine whether the order complained of complies with essential requirements of law and whether the agency had available competent, substantial evidence to support its findings. Carter at 557. We find that the commission had available for its consideration the requisite evidence to adopt the rule.

Accordingly, the order of the commission is affirmed.

It is so ordered.

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

         25-9.525 Municipal Surcharge on Customers Outside Municipal Limits.
      (1) The provisions of Rule 25-9.52 notwithstanding, a municipal electric utility may impose on those customers outside of its corporate limits a surcharge equal to the public service tax charged by the municipality within its corporate limits. To be equal to the tax, the surcharge shall apply to the same base, at the same rate, in the same manner and to the same types of customers as the tax. The surcharge shall not result in a payment by any customer for services received outside of the city limits in excess of that charged a customer in the same class within the city limits, including the public service tax.
      (2) Each municipal electric utility seeking to impose a surcharge on customers outside of its municipal limits shall provide written documentation to the Commission demonstrating compliance with the terms of this rule.


author:
ALDERMAN, Justice.
      OVERTON, Justice, specially concurring.

text:
    Morris Lee MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 64505.
    Supreme Court of Florida.
    Dec. 6, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Sharon Lee Stedman and Penny H. Brill, Asst. Attys, Gen., West Palm Beach, for respondent.
   ALDERMAN, Justice.

We review the decision of the District Court of Appeal, Fourth District, in Miller v. State, 438 So.2d 83 (Fla. 4th DCA 1983), which directly expressly conflicts with Carroll v. State, 412 So.2d 972 (Fla. 1st DCA 1982). Since our acceptance of jurisdiction in the present case on the basis of conflict, the First District, in an en banc opinion, has expressly receded from its holding in Carroll. Cooper v. State, 455 So.2d 588 (Fla. 1st DCA 1984).

Miller was charged with second-degree murder in that he killed another by shooting him with a handgun. The jury was instructed as to lesser included offenses and returned a verdict of attempted second-degree murder which is a second-degree felony punishable by a term of imprisonment not to exceed fifteen years. Because it was established that Miller had used a handgun during the commission of the crime, the trial court, at sentencing, reclassified attempted second-degree murder from a second-degree felony to a first-degree felony pursuant to section 775.-087(l)(b), Florida Statutes (1981), thereby enhancing the penalty from a possible sentence of fifteen years to a possible sentence of thirty years. The trial court then sentenced him to twenty years with the requirement of a minimum mandatory sentence of three years.

He appealed to the Fourth District and argued that only those offenses which are expressly charged in the information, as opposed to those offenses impliedly charged as a lesser included offense, may be reclassified pursuant to section 775.-087(1). The Fourth District disagreed with his contention and affirmed the trial court. It held that the phrase “charged with a felony,” used in section 775.087(1), encompasses felonies which are impliedly charged as necessarily included lesser offenses and attempts and that, therefore, Miller was subject to the operation of this statute.

Section 775.087(1), Florida Statutes (1981), provides in pertinent part:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: ...

The issue before us is whether the reclassification provisions of section 775.-087(1), Florida Statutes (1981), apply where the defendant is not convicted of the offense expressly charged in the information or indictment but instead is convicted of a lesser included offense.

The Fourth District held that the reclassification provisions do apply in this situation and affirmed the trial court. We agree and approve the decision of the district court.

It is so ordered.

BOYD, C.J., and ADKINS, McDONALD, EHRLICH and SHAW, JJ., concur.

OVERTON, J., concurs specially with an opinion.

OVERTON, Justice, specially concurring.

I concur with the majority that reclassification applies where the record clearly establishes that the defendant used a handgun while committing the crime for which he was convicted. I would note, however, that reclassification under this statute is not always applicable when a defendant is found guilty of a lesser included offense. For example, reclassification would be inappropriate when a defendant is charged with burglary with a dangerous weapon and is convicted of the lesser included offense of burglary, since the lesser included burglary conviction necessarily excludes the commission of that offense with a dangerous weapon.


text:
    THE FLORIDA BAR, Complainant, v. John T. BOND, Respondent.
    No. 65373.
    Supreme Court of Florida.
    Dec. 6, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Bar Counsel, Fort Lauderdale, for complainant.
    No Appearance, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against John T. Bond, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and report of referee. Pursuant to article XI, Rule 11.-06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Integration Rule of The Florida Bar 11.09(1) has been filed.

Having considered the pleadings and evidence, the referee found as follows:

AS TO COUNT I
1. The Respondent, John T. Bond, is and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. On or about December 27, 1979, Gold Coast, Inc. entered into a sales agreement with Identity, Inc. to sell a Public Service Commission license that Gold Coast, Inc. owned. At the time of said sales agreement, Respondent was the attorney for Identity, Inc.
3. Pursuant to the sales agreement, Identity, Inc. deposited the sum- of Fifteen Thousand Dollars ($15,000) with Respondent as escrow agent.
4. Subsequently, Gold Coast, Inc. instituted a lawsuit against Identity, Inc. and Respondent over the sales agreement.
5. During the course of the litigation, on May 29, 1981, The Honorable Eugene S. Garrett of the Seventeenth Judicial Circuit ordered Respondent to pay the Fifteen Thousand Dollars ($15,000) held in escrow to Fred J. Ward, P.A. Trust account.
6. Fred J. Ward represented Identity, Inc. in said litigation.
7. In the above order, The Honorable Eugene J. Garrett also ordered Respondent to appear for the taking of his deposition.
8. Fred J. Ward was unable to locate Respondent.
9. Respondent failed to pay the Fifteen Thousand Dollars ($15,000) to Fred J. Ward.
10. On or about October 23, 1981, a settlement was reached in the above litigation and the case was dismissed with, prejudice.
11. As part of the settlement agreement, Identity, Inc. assigned all of its rights, title and interest in the Fifteen Thousand Dollars ($15,000) held by Respondent to Gold Coast, Inc.
12. After the settlement agreement was signed, both Fred J. Ward and Harry M. Rosen, attorney for Gold Coast, Inc., attempted to locate Respondent but were unable to do so.
13. Respondent failed to pay the Fifteen Thousand Dollars ($15,000) to Gold Coast, Inc., pursuant to the settlement agreement.
AS TO COUNT II
14. On or about March 7,1980, Trans-Florida Express, Inc. entered into a sales agreement to sell a Certificate of Public Convenience and Necessity to Salvatore Esposito d/b/a Esposito Trucking.
15. Pursuant to said agreement, the sum of Ten Thousand Dollars ($10,000) was paid by Esposito Trucking to Respondent to be held in escrow.
16. At the time of said agreement, Respondent was the attorney for Anthony Giella, owner of Esposito Trucking.
17. On or about November 12, 1980, Trans-Florida Express, Inc. signed a General Release releasing Salvatore Esposito and Esposito Trucking from all liability for the March 7, 1980 sales agreement and authorizing Respondent to release the Ten Thousand Dollars ($10,000) from escrow.
18. Anthony Giella made numerous attempts, through telephone calls and personal conversations, to get back the Ten Thousand Dollars ($10,000) from Respondent.
19. Respondent eventually gave a check, made out in the amount of Ten Thousand Dollars ($10,000) and dated December 9, 1980, to Anthony Giella.
20. When the check was deposited, the bank returned it marked “account closed.”
21. Respondent promised Anthony Giella that he would make the check good, but he failed to do so.
22. On January 4, 1981, during proceedings for his divorce, Respondent testified that he was “short” in his trust account.
23. Respondent stated that he commingled Ten Thousand Dollars ($10,000) from the trust account with clients’ money and other funds that belonged to Respondent.
24. Respondent failed to account for and/or return the Ten Thousand Dollars ($10,000) to Esposito Trucking.

The referee recommends that respondent be found guilty of misconduct justifying disciplinary measures and recommends that respondent be disbarred from the practice of law in the State of Florida.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, John T. Bond, is hereby disbarred from the practice of law in the State of Florida effective immediately.

Costs in the amount of $868.40 are hereby taxed against respondent.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


text:
    In re INQUIRY CONCERNING A JUDGE, JAMES S. BYRD, # 84-73.
    No. 66019.
    Supreme Court of Florida.
    Dec. 6, 1984.
    Mark Hulsey, Chairman, Jacksonville, and John S. Rawls, Gen. Counsel, Tallahassee, for Florida Judicial Qualifications Commission, petitioner.
    James S. Byrd, in pro. per., Orlando, for respondent.
   PER CURIAM.

The Grand Jury of Orange County, Florida, investigated the Third Annual Jack Byrd Memorial Invitational Golf Tournament. The tournament committee, which included James S. Byrd, Circuit Judge of the Ninth Judicial Circuit, promoted, advertised, and conducted gambling with respect to the golf tournament. At the direction of the grand jury the report was delivered to the Judicial Qualifications Commission.

Formal proceedings were instituted by the commission and Judge Byrd was charged with impairing the confidence of the citizens of this state and the integrity of the judicial system, and violating Canons 1, 2 A, 5 B(2) and 5 C(l) of the Code of Judicial Conduct.

Judge Byrd and the commission have stipulated that the factual matters are true and that Judge James S. Byrd should be publicly reprimanded for his conduct as a Circuit Judge of the Ninth Judicial Circuit of Florida. We agree.

The publication of this order in the Southern Reporter will constitute a public reprimand of Judge James S. Byrd for his conduct as a Circuit Judge of the Ninth Judicial Circuit of Florida.

It is so ordered.

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


author: SCHEB, Judge.

text:
    Lee Edward GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 84-18.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.
    Rehearing Denied Dec. 11, 1984.
    Jerry Hill, Public Defender, and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Lee Edward Green appeals his sentences, which are outside the presumptive sentence recommended by the new sentencing guidelines. We have jurisdiction pursuant to section 924.06(l)(e), Florida Statutes (1988).

On March 30, 1983, the state filed an information charging Green with kidnapping, aggravated battery, and armed robbery. On April 8 defendant was notified that he would be treated as a subsequent felony offender under section 775.084, Florida Statutes (1983). After pleading not guilty to all the offenses, defendant subsequently entered pleas of no contest to the three charges on October 11, the day of the trial, and affirmatively elected to be sentenced under the new sentencing guidelines. In this regard his attorney stated:

Yes, Your Honor. We are here for a trial this morning and pursuant to plea negotiations, which the State and the Court were present, we have elected to withdraw a previously entered plea of not guilty to the original Information and enter a plea of no contest at this time.
... We received the Sentencing Guidelines and under the Guidelines as they applied to the original Information, this would be a category three sentencing procedure. And if the Court is going to impose it I understand it is included to [the] habitual offender aspect of these new Guidelines and Mr. Green’s sentence would fall between the nine to twelve years range. And we would be — elected to be sentenced under that.
He is aware that had he not elected to be sentenced under the Guidelines he would be exposed to the old sentencing procedures and by my calculations, and I think probably as well, he would be exposed to life plus sixty years, and the Court v/ould have the option at a subsequent time to retain jurisdiction over that time period or perhaps one half of that sentence.
So, as far as these areas that I have mentioned being considered, we have elected to be sentenced under the new Guidelines.

The court then adjudged defendant guilty and sentenced him to three concurrent twelve-year terms of imprisonment.

Green now argues on appeal that he was not sentenced in conformity with the guidelines, because the scoresheet submitted by his attorney reflected a recommended range of only seven to nine years imprisonment. We reject this argument.

Defendant elected to be sentenced under the guidelines pursuant to a negotiated plea. Realizing that he could have been imprisoned for life, he elected instead to plead no contest and receive a sentence of no more than twelve years. In light of these circumstances, the trial judge was justified in honoring the plea bargain and thereby deviating from the guidelines. Defendant is therefore in no position to argue now that his sentence exceeded the recommended guidelines range.

We hold that the negotiated plea in this case was a clear and sufficient reason for departure from the guidelines. Bell v. State, 453 So.2d 478 (Fla. 2d DCA 1984); Key v. State, 452 So.2d 1147 (Fla. 5th DCA 1984). Accordingly, we affirm defendant’s sentences.

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


author: SHARP, Judge.

text:
    INNKEEPERS MOTOR LODGE, INC., a Georgia corporation, Appellant, v. CITY OF NEW SMYRNA BEACH, etc., et al., Appellee.
    No. 83-921.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Rehearing Denied Dec. 11, 1984.
    Thomas S. Hart of Thomas S. Hart, P.A., Daytona Beach, for appellant.

      Margaret T. Brewer, New Smyrna Beach, for appellee.
   SHARP, Judge.

Innkeepers Motor Lodge, Inc. (Innkeepers), appeals from a final judgment that upheld a density cap passed by the electorate of the City of New Smyrna Beach, Florida, in a special referendum election. We reverse because we find that the flat density cap, which cannot be justified by any particular study and which does not allow for the possibility of variance, is arbitrary and unreasonable.

In 1968, Innkeepers purchased a parcel of oceanfront property within the city limits, with the intent of constructing a full service hotel thereon. At the time of the purchase, the property was not subject to density restrictions.

In June 1973, the city electorate incorporated a density cap into the city charter by way of a special referendum election. That density cap limited multifamily dwellings to twelve dwelling units per acre and hotels/motels to twenty-four dwelling units per acre. The group of citizens that initiated the referendum process did not conduct any study to justify the twelve/twenty-four figure; indeed, the figures apparently materialized “out of the air.” The density cap applies to New Smyrna Beach across the board, and does not provide for variance procedures.

In -1977, Innkeepers sought approval from New Smyrna Beach to construct a one hundred unit hotel on its property. The city attorney informed Innkeepers that, pursuant to the density cap of twenty-four dwelling units per acre, it could build a maximum of thirty dwelling units because its property contained approximately 1.25 acres.

At a non-jury trial, Innkeepers presented testimony to the effect that the highest and best use of the property, indeed, its only reasonable use, was to build a full service hotel thereon. For the purposes of this appeal, however, we do not consider this question, nor the question of whether Innkeepers showed that the density cap was not reasonably related to valid police powers possessed by the City.

Zoning plans cannot be arbitrarily adopted. See Town of Surfside v. Skyline Terrace Corporation, 120 So.2d 20 (Fla. 3d DCA), cert. denied, 123 So.2d 675 (Fla.1960). In the case sub judice, it is clear the figures for the density cap were arbitrarily adopted: the group that initiated the referendum process failed to conduct a study to justify the twelve/twenty-four figures for the cap. In fact, no one seems to know where the figures came from.

Further, we point out that usually zoning laws provide for variances to be granted in certain cases, e.g., in cases of unique hardship, in accordance with some governing standard or rule. 8 E. McQuillan, The Law of Municipal Corporations § 25.46 (3d ed. 1983); see Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). The density plan adopted by referendum in this case does not allow for the possibility of a variance. In such a case, a “unique hardship making a zoning ordinance arbitrary, oppressive or confiscatory as to particular property, renders it void and unconstitutional in its application to that property _” 8 E. McQuillan, supra., at § 25.46.

Because the density cap was arbitrarily adopted, we reverse.

REVERSED.

COWART, J., concurs.

DAUKSCH, J., concurs in conclusion only.

      . The property has undergone various zoning reclassifications. A discussion of such is not germane to the instant appeal, except to note that the property had the necessary zoning classification to build a hotel thereon at the time of the suit.

      . Although the City of New Smyrna Beach did conduct density studies both before and after the referendum, it did not participate in the formulation of the twelve/twenty-four figures, nor has it ever recommended these particular figures.


author: LEHAN, Judge.

text:
    FLORIDA PATIENT’S COMPENSATION FUND, Appellant, v. June BLACK and Randy Black, Appellees.
    No. 83-2598.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1984.
    Rehearing Denied Dec. 3, 1984.
    Judith W. Simmons of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Cole & Shasteen, P.A., Tampa, for appellant.
    V. James Facciolo of Searcy & Facciolo, P.A., Jacksonville, for appellees.
   LEHAN, Judge.

We affirm the trial court’s denial of the Florida Patient’s Compensation Fund’s motion for attorney’s fees under section 768.-56, Florida Statutes (1981). We agree with the trial court that the Fund was not the “prevailing party” in this litigation within the intended scope of section 768.56.

The jury in this medical malpractice trial against plaintiff’s doctor and the Fund returned a verdict in the total sum of $27,000 which was below the threshold amount of $100,000 beyond which the Fund’s obligation to compensate plaintiff would be activated. § 768.54 (3), Fla. Stat. (1981). However, we must conclude that plaintiff actually won the lawsuit.

The Fund was named as a defendant in this lawsuit by virtue of plaintiff’s claim against the doctor, not by reason of some entirely separate claim against the Fund. See § 768.54(3)(e), Fla. Stat. (1981). Although the Fund tellingly argues that from its standpoint the Fund prevailed, for present purposes the appropriate way to view the outcome of a suit like this is from the standpoint of the plaintiff. Failure to win on all aspects of a lawsuit does not mean that plaintiff did not prevail. See Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla.1983) (a plaintiff prevails when he wins a personal injury suit on one theory even though he may lose on another); Raffel v. Magarian, 165 So.2d 249 (Fla. 3d DCA 1964) (a plaintiff is entitled to costs when he obtains a judgment in his favor on liability even though no damages are awarded). See also Upson v. Hazelrig, 444 So.2d 1127 (Fla. 3d DCA 1984). We do not believe it was the legislature’s intent to penalize a plaintiff in these circumstances for adding the Fund to a suit like this. There is no contention that the inclusion of the Fund in the suit was improper. The fact that in closing argument, after all the evidence was in, plaintiff’s attorney asked for damages in an amount less than $100,-000 ($74,266.68) does not mean that inclusion of the Fund in the suit was improper.

It is not established in the record, notwithstanding the hindsight indications provided by the $27,000 jury verdict and by appellees’ $74,266.68 request for damages in closing argument, whether or not the potential liability of the Fund in this lawsuit should have been anticipated to be less than the foregoing threshold level. But, even if it had been shown that such potential liability should have been anticipated to be less than that threshold level, the legislature seems to have placed upon the Fund in that type of circumstance the responsibility to decide whether or not to rely upon the defense of the other defendant (the doctor here) or to incur the separate expense of defending the suit itself. The legislature did not place upon the plaintiff the responsibility to decide whether or not to continue the suit against the Fund. Section 768.54(3)(e) 1 provides: “If, after the facts upon which the claim is based are reviewed, it appears that the claim will exceed $100,000 or, if greater, the amount of the health care provider’s basic coverage, the fund shall appear and actively defend itself when named as a defendant in the suit.” Accordingly, it is up to the Fund to decide when it may properly not actively defend. Therefore, there appears to be validity in appellees’ argument to the effect that appellees did not bear the sole responsibility for the Fund incurring the defense expenses it seeks to recover from appel-lees.

AFFIRMED.

OTT, A.C.J., and SCHOONOVER, J., concur.


author: RYDER, Chief Judge.

text:
    FREE UNITHOLDERS OF OUTDOOR RESORTS AT ORLANDO, INC., Appellants, v. OUTDOOR RESORTS OF AMERICA, INC., Appellee.
    No. 83-2602.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1984.
    As Amended on Rehearing Dec. 14, 1984.

      Irby G. Pugh, Orlando, for appellants.
    Scott J. Johnson of Maguire, Voorhis & Wells, P.A., Orlando, for appellee.
   RYDER, Chief Judge.

Free Unitholders of Outdoor Resorts at Orlando, Inc., a group of lot owners at a recreational vehicle condominium known as Outdoor Resorts at Orlando, appeal from a final judgment enjoining the lot owners from renting their lots in violation of a 99-year exclusive rental provision in the Declaration of Condominium and declaring the provision to be valid and enforceable. We affirm.

Article XI of the Declaration of Condominium specifically provides that the developer of the project, Outdoor Resorts of America, Inc., shall have for a period of 99 years the exclusive right, in the absence of use by the lot owner or his designated guest, to rent the lots. The article also provides that the developer shall undertake an advertising program to promote lot rentals and split the gross amount of rent equally with the affected lot owner. The Declaration of Condominium was recorded in the public records prior to the sale of the first lot and the developer actively operated the rental program from the inception of the project.

Appellants have failed to carry their burden proving that Article XI is unconscionable and unenforceable as outlined in Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d DCA 1982). The recording of the Declaration gave each potential lot purchaser at least constructive knowledge of its contents. No lot owner was forced to rent his lot. The terms of the exclusive rental provision do not amount to an outrageous degree of unfairness. Therefore, we affirm the trial court’s judgment.

The developer has filed a cross-appeal from a separate judgment denying its motion for attorney’s fees and granting it only part of its court costs. Its notice of appeal was filed beyond the jurisdictional thirty days allowed for filing a direct appeal from a judgment. Fla.R.App.P. 9.110(b). Because the developer did not appeal from the same judgment from which the original appeal was taken, the procedural rule concerning commencement of a cross-appeal does not apply. Webb General Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So.2d 1058 (Fla. 3d DCA 1981). Therefore, this court lacks jurisdiction to entertain the developer’s appeal. Hawks v. Walker, 409 So.2d 524 (Fla. 5th DCA 1982). The developer’s appeal is dismissed.

Affirmed; cross-appeal dismissed.

DANAHY and SCHOONOVER, JJ., concur.


author: SHARP, Judge. COWART, Judge, SHARP, Judge.

text:
    Doris MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-833.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    On Rehearing Dec. 13, 1984.

      James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Mobley appeals from the trial court’s revocation of her probation, and sentence of one year imprisonment. She pleaded nolo contendere to Count II of an information which stated in relevant part:

DORIS MOBLEY of the County of Her-nando, and the State of Florida, on the 18th day of November, 1981, in the County and State aforesaid did unlawfully and feloniously sell or deliver to another person, Cannabis, a controlled substance commonly known as Marijuana, in violation of Florida Statute 893.3(l)(a)(2) [893.-13(l)(a)(2)]_ (Emphasis supplied).

The information fails to allege that the delivery was for an amount in excess of twenty grams or that it was for consideration. The information charges Mobley with committing a felony, or alternatively, a misdemeanor.

In Young v. State, 439 So.2d 306 (Fla. 5th DCA 1983), we held that a similarly worded information did not properly invoke the jurisdiction of the circuit court, because it failed to charge the commission of a felony. See also Nelson v. State, 398 So.2d 920 (Fla. 5th DCA 1981). However, we recently receded from that view. Fike v. State, 455 So.2d 628 (Fla. 5th DCA 1984). Accordingly, the judgment is

AFFIRMED.

ORFINGER, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I dissent for the reasons stated in the dissent in Fike v. State, 455 So.2d 628 (Fla. 5th DCA 1984), and the dissent in Ramsey v. State, 456 So.2d 973 (Fla. 5th DCA 1984).

ON MOTION FOR REHEARING

SHARP, Judge.

On motion for rehearing, Mobley correctly points out that we misstated the fact she was sentenced for one year as to Count II, the ruling she was appealing. The record shows she was sentenced to thirty months on Count II.

We hereby grant the motion for rehearing, and amend our prior opinion as indicated above. Otherwise, it is affirmed.

MOTION GRANTED; OPINION AMENDED.

ORFINGER and COWART, JJ., concur.

      . State V. Stewart, 374 So.2d 1381 (Fla.1979); Boley v. State, 273 So.2d 109 (Fla. 4th DCA 1973), cert. discharged, 287 So.2d 668 (Fla.1973); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So.2d 99 (Fla.1973).


author: DAUKSCH, Judge. SHARP, Judge,

text:
    John P. MOSER, Petitioner, v. Honorable Ted P. COLEMAN, Circuit Judge, In and For Orange County, Respondent.
    No. 84-957.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Kirk N. Kirkconnell, of Muller, Kirkcon-nell & Lindsey, P.A., Winter Park, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   DAUKSCH, Judge.

This is before us on a petition for writ of prohibition. It is alleged the trial judge is prejudiced and thus must be disqualified from proceeding further in the case. We deny the writ.

The petitioner was inaccurately charged with a violation of probation by “a sloppy pleading by the probation officer,” so said the judge. After a hearing the judge dismissed the warrant but found “The evidence is clear, in my opinion, that the Defendant committed the subsequent offense, that is, a trespass after warning, but he wasn’t charged with that, which would clearly be a violation of probation.” The judge went on to say “Not only am I not taking it lightly, but I am going to take a hard look at whether jeopardy attaches, and if I determine that jeopardy doesn’t attach, I am going to order the probation department to file an affidavit charging him properly.”

Neither the pleadings nor the facts warrant the disqualification of the judge. The fact that he has heard at least some of the evidence and has an attitude regarding the guilt of the accused does not, ipso facto, disqualify him from hearing the matter. Every time a judge signs a warrant, for probation violation or otherwise, he makes a judgment on the minimal merits of the case but that does not disqualify him from hearing the matter. Trial judges who sign or order the petition for warrants are not disqualified from hearing the case further on the basis that they must have already made up their minds.

Many times this court sends eases back for a new trial, either by judge or jury. That does not mean the reversed judge must recuse himself because he has already determined the matter. This would be especially true in the very sensitive circumstances regarding the allocation of assets, provision of support and award of custody and residency in marriage dissolution cases. There is nothing in this record, as minimal as it is, to indicate any bias, prejudice or ill-will on the part of the judge. The trial judge is merely exercising his control over his probationer.

The writ is denied and this cause remanded for a full hearing on the matter. Upon remand the matter should be considered de novo with a proper charge and a full evi-dentiary hearing.

Writ denied.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

A clearer case than this one for disqualifying a trial judge for having prejudged a defendant’s guilt could not be presented to an appellate court. I would grant the writ of prohibition.

The trial judge heard and presided over a probation violation hearing involving Mos-er. At its conclusion he dismissed the charge for lack of proof, but stated that, in his opinion, Moser could be found to have violated his probation because he committed trespass after warning. He also said he would order the probation department to file an affidavit charging Moser with violation of probation based on trespass after warning. At that hearing the judge said when the trespass matter was filed he would allow the defense to make “legal arguments” only.

Due process demands that there should be a full evidentiary hearing on the trespass charge. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Clark v. State, 442 So.2d 1076 (Fla. 3rd DCA 1983); Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973). Further, since the record demonstrates this trial judge has already decided this case based on evidence heard in the prior case, I think he should recuse himself. Irwin v. Marko, 417 So.2d 1108 (Fla. 4th DCA 1982).


text:
    RUSTBROOK—S.C.B. (U.S.), INC., A Florida Corporation, Appellant, v. Walter SAUERMANN, Appellee.
    No. 84-63.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1984.
    Rehearing Denied Dec. 19, 1984.

      Guión T. DeLoach, Naples, for appellant.
    Harold S. Smith, II, of Vega, Brown, Nichols, Stanley & Martin, P.A., Naples, for appellee.
   LEHAN, Judge.

A condominium developer has appealed a judgment for the buyer of a condominium unit in a lawsuit by the buyer for the refund of his deposit money. We reverse.

On July 22, 1981, Walter Sauermann signed two contracts to purchase two condominium units in a project being developed by Rustbrook-S.C.B. (U.S.), Inc. Sauermann made a $56,400 down payment on the two units.

Two days after the contracts were signed, Rustbrook submitted to the Department of Business Regulation, Division of Florida Land Sales and Condominiums, a prospectus and all other documents required to be filed by section 718.504, Florida Statutes (1981). On October 23, 1981, the Division notified Rustbrook that the examination of the condominium documents was complete and that no deficiencies had been found.

Sauermann acknowledged under oath in court that in March 1982 he had received copies of the condominium documents. He had not signed a receipt for the documents.

Prior to the date set by the contracts for the closing on the condominium purchase, Sauermann’s attorney notified Rustbrook that Sauermann was cancelling the purchase contracts. No closing on the contracts ever occurred.

Sauermann sued Rustbrook for the return of his deposit money which was being held in escrow. The trial court ruled that the contracts were avoidable by Sauermann because (a) Rustbrook was unable to produce a signed receipt evidencing delivery to Sauermann of the required condominium documents, and (b) Rustbrook entered into the contracts for sale before filing the prospectus with the Division.

On appeal Rustbrook first contends that the trial court incorrectly ruled that the contracts were voidable by Sauermann because of the lack of a signed receipt. Florida Administrative Code Rule 7D-18.01 provides that a contract for sale of a condominium unit is voidable by the purchaser within fifteen days after the buyer has executed the contract and the buyer has signed a receipt for the required condominium documents. In this case, because Sauermann never signed a receipt he claimed (and the trial court agreed) that the contracts remained voidable.

However, rule 7D-18.01 is based on section 718.503(2), Florida Statutes, which provides that the buyer may terminate the contract “within 15 days after the buyer ... receives all of the documents required by this section.” Thus, under the language of the statute, Sauermann’s right to cancel his contracts expired fifteen days after he received the condominium documents in March 1982, regardless of the fact that he never signed a receipt for the documents.

We believe that the language of the statute controls in this situation. As the Florida Supreme Court said in Kimbrell v. Great American Insurance Co., 420 So.2d 1086, 1088 (Fla.1982), “It is true that a regulatory agency’s construction of a statute the agency is assigned to enforce is entitled to considerable weight_ However, when the language of a statute is plain and its meaning clear, resort to this or any other rule of statutory construction is unnecessary.” The language of section 718.503(2) clearly allows a buyer to cancel a contract for a period of fifteen days from his receipt of the documents. The intent of the legislature was doubtless to allow the buyer sufficient time to inspect the documents before being bound by the contract. Whether or not the buyer signed a receipt for the documents is irrelevant to the purpose of the fifteen-day period. The signed receipt required by the administrative regulations is more in the nature of an eviden-tiary aid to assist a developer in proving that a buyer in fact received the documents.

Rustbrook’s second point on appeal is that the contracts were not voidable for the second reason given by the trial court — that Rustbrook entered into a contract before filing the prospectus with the Division. Section 718.502(1), Florida Statutes (1981), requires a developer to file' certain documents, including a prospectus, and states that “[ujntil the developer has so filed, a contract for sale ... shall be voidable by the purchaser ... prior to the closing of his purchase ... of a unit.” The statute clearly states that a contract is voidable by the purchaser “until the developer has so filed.” This connotes that once the developer files the required documents, the contract is no longer voidable (except to the extent other portions of the Condominium Act apply, such as the fifteen-day waiting period discussed above).

Sauermann contends that under language in section 718.504 any contract is unenforceable if it is entered into before the filing requirement is met. Section 718.-504 says that a developer shall prepare a prospectus and file it with the Division “prior to entering into an enforceable contract of purchase and sale of any unit.” While it may be argued, as Sauermann does, that section 718.504 indicates that any contract entered into before the filing of the prospectus is and remains unenforceable, we do not believe that any such indication can overcome the language of section 718.502(1) which we construe as saying that the contract is unenforceable only until the required documents are filed.

Because we find under the foregoing statutory construction that the contracts were not voidable by Sauermann on either of the two grounds argued, we reverse and remand for proceedings consistent herewith.

RYDER, C.J., and SCHOONOVER, J„ concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. Sylvester McKINNIE, Appellee.
    Nos. 82-2235, 83-60.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Jan. 4, 1985.
    Joe N. Unger of Law Offices of Joe N. Unger, P.A., Miami, and Kopplow & Flynn, P.A., Fort Lauderdale, for appellant.
    Marcia E. Levine of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellee.
   PER CURIAM.

Section 627.727(1), Florida Statutes (1981), provides in pertinent part that uninsured motorist coverage “shall be over and above, but shall not duplicate the benefits available to an insured ... from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.” (Emphasis supplied.)

Today we join our sister courts and hold that the foregoing language requires that:

Where two tortfeasors are jointly and severally liable for damages caused to a third person in an automobile accident, although one tortfeasor is uninsured, if the other tortfeasor has liability insurance with policy limits equal to, or greater than, those contained in uninsured motorist coverage possessed by the injured third person, the injured third person cannot recover under his own uninsured motorist policy.

Scharfschwerdt v. Allstate Insurance Co., 430 So.2d 578, 579 (Fla. 5th DCA 1983). See also Craft v. Government Employees Insurance Company, 432 So.2d 1343 (Fla. 2d DCA 1983); Fenner v. McLowhorn, 424 So.2d 50 (Fla. 2d DCA 1982); United States Fidelity and Guaranty Co. v. Timon, 379 So.2d 113 (Fla. 1st DCA 1979); Travelers Insurance Co. v. Wilson, 371 So.2d 145 (Fla. 3d DCA 1979). Notwithstanding our holding we certify the following as a question of great public importance to the Florida Supreme Court:

Where two tortfeasors are jointly and severally liable for damages caused to a third person in an automobile accident, although one tortfeasor is uninsured, if the other tortfeasor has liability insurance with policy limits equal to, or greater than, those contained in uninsured motorist coverage possessed by the injured third person, can the injured third person recover under his own uninsured motorist policy?

Accordingly, the judgment on appeal is reversed. On remand, the trial court should proceed with a determination as to the responsibility and rights of the respective parties. See Travelers Insurance Co. v. Wilson, supra.

REVERSED and REMANDED with instructions.

HURLEY, J., and WESSEL, JOHN D„ Associate Judge, concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

I agree with the dissent of Judge Schwartz set out in Behrmann v. Industrial Fire and Casualty Ins. Co., 374 So.2d 568, 569 (Fla. 3d DCA 1979), Schwartz, J., dissenting:

In my judgment, none of the decisions cited in the majority opinion, all of which deal with markedly different situations, are controlling. The plaintiff in this case, who was ostensibly covered by $15,000 in UM insurance provided by Industrial Fire, was a passenger in a car, the driver of which was insured with $15,000 liability limits by Stonewall Insurance Company. The car was involved with another un insured vehicle in an accident in which both drivers were at fault. Under these circumstances, I believe, as the appellant contends, that she is entitled to the benefit of both coverages, with her own UM properly regarded, not as being “stacked” upon her driver’s liability policy, compare Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978), but as representing the other, uninsured, motorist’s liability. If both drivers were insured, the plaintiff would clearly be entitled to recover, in effect, against both of their liability carriers. Therefore, a simple application of the general rule that the purpose of UM is to provide the insured with the same protection accorded if the tortfeasor were covered by liability insurance, e.g., Aetna Casualty and Surety Co. v. Ilmonen, 360 So.2d 1271, 1274 (Fla. 3d DCA 1978), requires, I believe, a result opposite to that reached by the court.

This seems to be the view in several other jurisdictions as well. See Tholen v. Carney, 555 F.2d 479 (5th Cir.1977); Security National Insurance Co. v. Hand, 31 Cal. App.3d 277, 107 Cal.Rptr. 439 (1973); and Motorists Mutual Insurance Co. v. Tomanski, 27 Ohio St.2d 222, 271 N.E.2d 924 (1971). Uninsured motorist coverage comes into play when one is injured by an uninsured motorist. Here, appellee claims an injury at the hands of an uninsured motorist, thereby invoking the coverage of appellant. The fact that a second, insured, motorist is also involved should not bar the appellee from invoking coverage that is clearly applicable on the face of the terms of the policy. As Judge Schwartz noted, this will not subvert the purpose of uninsured motorist coverage, but, rather, will enhance it, since appellee, if injured at the hands of two insured motorists would have been able to look to both for recovery of his total damages. So, here, the appellee should be able to invoke his uninsured motorist coverage to insure, as close as possible, within the coverages, that he does recover his total damages.


author: PER CURIAM. PER CURIAM.

text:
    Patricia A. BRENNER and Arthur R. Brenner, her husband, Appellants, v. ALLSTATE INSURANCE COMPANY and Gertrude Rudolph, Appellees.
    No. 83-2321.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Jan. 9, 1985.
    Richard A. Sherman of Law Office of Richard A. Sherman, Fort Lauderdale, and Ronald A. David of David & French, P.A., Boca Raton, for appellants.
    Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellees.
   PER CURIAM.

The decision of the court below is affirmed in all respects except as to the issue of damages. This cause is remanded for a new trial upon the sole issue of damages.

HERSEY and WALDEN, JJ., and J. LEONARD FLEET, Associate Judge, concur.

UPON APPELLANTS’ MOTION FOR CLARIFICATION AND MOTION FOR REHEARING

PER CURIAM.

Inasmuch as we remanded this case for a new trial upon the sole issue of damages, the appellants no longer have the option of accepting the remittitur.

The motions are

DENIED.

HERSEY, WALDEN, JJ., and J. LEONARD FLEET, Associate Judge, concur.