author: ADKINS, Justice. OVERTON, Justice,

text:
    Ian LIGHTBOURNE, Appellant, v. STATE of Florida, Appellee.
    No. 60871.
    Supreme Court of Florida.
    Sept. 15, 1983.
    Rehearing Denied Oct. 26, 1983.

      Jerry T. Lockett, Sp. Asst. Public Defender, Tavares, for appellant.
    Jim Smith, Atty. Gen., and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appel-lee.
   ADKINS, Justice.

We have for review a judgment of conviction and a sentence of death imposed by a trial court. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant, Ian Lightbourne, was convicted of first-degree murder and as recommended by the jury, was sentenced to death. By appeal he seeks a reversal of his conviction and his sentence. For the reasons set out below we affirm both appellant’s conviction and the sentence of death imposed upon him. The facts are complex and will be recited together with their respective issues which appellant raises on appeal.

I.

The indictment reads in part:

[T]hat IAN LIGHTBOURNE of the County of Marion and State of Florida, on the 16th or 17th day of January, 1981, in the County and State aforesaid, did unlawfully, from a premeditated design to effect the death of a human being and/or while engaged in the perpetration of a burglary and/or involuntary sexual battery, kill and murder Nancy A. O’Farrell, a human being, by shooting her with a firearm, to-wit: a .25 caliber automatic pistol, a more particular description being to this Body unknown, in violation of Florida Statute 782.04.

Appellant’s (hereinafter defendant) initial claim is that the indictment does not allege the time of the offense “as definitely as possible” under Florida Rule of Criminal Procedure 3.140(d)(3). However, it is not necessary that an indictment or information state the exact date of the offense if such date is not known. Rather the indictment or information in such cases will be deemed sufficient if it is alleged that the offense occurred within stated specific time limits. Sparks v. State, 273 So.2d 74 (Fla.1973); State v. Bandi, 338 So.2d 75 (Fla. 4th DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977).

The statement of particulars given by the state narrowed the time period for the alleged offense to sometime between 5:30 p.m. on January 16, 1981, and 4:00 p.m. on January 17, 1981. Furthermore, this time frame was based on scientific evidence obtained at the crime scene and during the subsequent autopsy and later presented at trial. Scientific experts could only narrow the time of death to approximately midnight of January 16, 1981.

Given the limited information possessed by the state relative to the time of death of the decedent, the indictment sufficiently charged the time of the offense and notified the defendant of the time of the murder as specifically as possible. As such, the trial court did not err in denying the defendant’s motion to dismiss the indictment on this ground. Fla.R.Crim.P. 3.140(d)(3).

The defendant also challenges the indictment on grounds of overbreadth and vagueness, arguing that the state, by charging in the disjunctive in this case, has effected the result of charging two inconsistent offenses, that is felony murder and premeditated murder.

An indictment or information will be dismissed for vagueness only if it is so vague, indistinct and indefinite so as to mislead a defendant or embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. State v. Dilworth, 397 So.2d 292 (Fla.1981); State v. Black, 385 So.2d 1372 (Fla.1980); Fla.R.Crim.P. 3.140(o).

Under section 782.04, Florida Statutes (1981), the offense of first-degree murder may be committed in several ways, including murder by premeditated design or a felony murder supported by various felonies, among which are included the felonies of burglary and sexual battery. The instant indictment tracked the statute and adequately placed the defendant on notice that he was charged with first-degree murder resulting from any one or a combination of the three specific'methods in the indictment. The single offense of first-degree murder may be proven by alternate methods, so it follows that the charging instrument should be free to include such alternate bases for conviction.

The allegations of the indictment are sufficient to charge murder in the first degree, regardless of whether the murder was committed with premeditated design or in the perpetration of the enumerated felonies. Knight v. State, 338 So.2d 201 (Fla.1976); Barton v. State, 193 So.2d 618 (Fla. 2d DCA 1966), cert. denied, 201 So.2d 459 (Fla.1967). Consequently, the indictment was not vague or overbroad since it specifically apprised the defendant of the criminal acts allegedly committed which support the charge of first-degree murder.

The defendant’s final challenge under Point I is that the indictment could be construed as charging only felony murder and that charging only felony murder and proving-premeditated murder is impermissible under Ables v. State, 338 So.2d 1095 (Fla. 1st DCA 1976), cert. denied, 346 So.2d 1247 (Fla.1977). The indictment herein clearly incorporates an allegation that the murder was premeditated in design. The Abies decision involved a case in which premeditated murder was never alleged, and as such that case is clearly distinguishable from the instant case.

II.

The defendant claims that the trial court erred in denying his second motion to dismiss the indictment, arguing that the aggravating circumstances to be applied at the sentencing stage in capital felony cases must be originally alleged in the indictment in order to confer jurisdiction on a court to impose a sentence of death. If such allegations are not made, argues the defendant, death is not a permissible penalty, for it is now established that the sentencing process, as well as the trial itself, must satisfy the requirements of due process. See, Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

The defendant’s arguments raised under Point II are clearly without merit, having been previously addressed and rejected in Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). The trial court did not err in denying the defendant’s motion to dismiss the indictment or to declare that death was not a possible penalty.

III.

The defendant raises a number of constitutional challenges to sections 775.082(1), 782.04(1), and 921.141, Florida Statutes, (1981). Such challenges for the most part have been previously considered and disposed of by this and other courts.

First, the defendant claims that section 775.082, by fixing the penalties for capital felony convictions, infringes on the principle of separation of power, eliminates judicial discretion at the sentencing stage, and is therefore unconstitutional. This argument is clearly misplaced. The constitutionality of this section has been repeatedly upheld. Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); 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); 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). Additionally, the determination of maximum and minimum penalties is a matter for the legislature. Also, when a statutory sentence is not cruel and unusual on its face it will be upheld against an attack based on separation of powers grounds. Sowell v. State, 342 So.2d 969 (Fla.1977).

Second, the defendant attacks the constitutionality of section 921.141, arguing that the aggravating and mitigating circumstances contained in the statute are im-permissibly vague and overbroad. This Court has ruled on numerous occasions upholding the constitutionality of the section, finding that the statutorily prescribed circumstances were not vague but rather provided “[mjeaningful restraints and guidelines for the discretion of judge and jury.” State v. Dixon, 283 So.2d at 9. Subsequent decisions buttress the constitutionality of the statute. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); Alvord v. State.

The defendant’s claim that the mitigating factors contained in section 921.-141(6) are constitutionally deficient because limited by statute is without merit. In Sireci v. State and Songer v. State, 419 So.2d 1044 (Fla.1982), all relevant factors were authorized to be presented in mitigation at the sentencing phase of the proceedings.

Finally, the defendant asks this Court to reverse its position on the constitutionality of Florida’s death penalty statutes, sections 782.04(l)(a) and 775.082. This we decline to do. These statutes have been repeatedly upheld against claims of denial of due process and equal protection, as well as against assertions that they constitute cruel and unusual punishment. Proffitt v. Florida; Spinkellink v. Wainwright; Ferguson v. State, 417 So.2d 639 (Fla.1982); Songer v. State, Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); Antone v. State; Foster v. State; Martin v. State, 377 So.2d 706 (Fla.1979); Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977); Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221, Alvord v. State; Swan v. State, 322 So.2d 485 (Fla.1975); State v. Dixon. The defendant has failed to establish or demonstrate that this Court’s position on the death penalty statutes should be disturbed.

Accordingly, we hold that the trial court did not err in denying the defendant’s motion to declare sections 775.082(1), 921.141 and 782.04(1) unconstitutional.

IV.

Defendant’s basic claim under Point IV is that Theodore Chavers, a state witness at trial, was acting as an agent of the state during the time he shared a cell with the defendant at the Marion County jail. Consequently defendant argues that any statements made by him to Chavers should have been suppressed in that the defendant was unaware that he was talking to a government agent, and such statements were obtained in violation of his constitutionally guaranteed privilege against self incrimination and his right to counsel. U.S. Const, amend. V and VI; Art. I, § 12, Fla. Const.

The threshold inquiry here is whether or not Theodore Chavers was acting as an agent of the state. In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Supreme Court held that sixth amendment rights were violated when:

[T]here was used against [the defendant] at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.

Id. at 206, 84 S.Ct. at 1203.

In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Supreme Court applied Massiah in the context of using informant information and apparently recognized an active/passive dichotomy in determining whether or not an informant is to be deemed acting as an agent of the state in any particular case. The key to the Henry decision lies in the requirement that, in order for an informant to be acting as a state agent he must, acting in concert with the state, actively stimulate or instigate conversation specifically designed to elicit incriminating information. If no active role is taken by the informant, but rather he merely remains passive and keeps his ears open for anything the defendant might wish to volunteer, then under the Henry analysis there is no agency relationship which would trigger the fifth and sixth amendment protections.

In Henry the Court found that the informant, Nichols, was acting under instructions as a paid informant for the government. In return for information he was given money and this arrangement was mutually understood. In the instant case there is nothing in the record establishing that the informant Chavers had any prearranged guarantee of money in return for information, and it appears that the two hundred dollars that he did receive from the Marion County Sheriff’s Department was drawn from a general reward fund and not given as an inducement to elicit information.

Similarly, Investigator LaTorre’s advice to the informant Chavers to keep his ears open does not constitute an attempt by the state to deliberately elicit incriminating statements. Without some promise or guarantee of compensation, some overt scheme in which the state took part, or some other evidence of prearrangement aimed at discovering incriminating information we are unwilling to elevate the state’s actions in this case to an agency relationship with the informant Chavers.

The informant Chavers’ testimony regarding statements made by the defendant was properly allowed into evidence and the trial court did not err in denying defendant’s motion to suppress.

V.

The defendant claims that certain personal items taken from him at the time of his arrest on the weapons charge should have been held inadmissible in his trial on the murder charge. This argument is without merit.

The taking into custody, by police, of property of arrested persons for safekeeping does not violate constitutional search and seizure protections. United States v. Gravitt, 484 F.2d 375 (5th Cir.1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974); United States v. Lipscomb, 435 F.2d 795 (5th Cir.1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971); Delatte v. State, 384 So.2d 245 (Fla. 1st DCA 1980).

Furthermore, after a person allows his personal effects to be taken into custody by police and inventoried, any privacy interest previously attached thereto is dissipated. United States v. Grill, 484 F.2d 990 (5th Cir.1973), cert. denied, 416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974). The inventory of the defendant’s belongings, occurring incident to a lawful arrest did not constitute an unreasonable search; subsequent inspection of the belongings by Officer LaTorre at the jail caused no greater intrusion than the original inventory. Since the belongings had already been exposed to police view under lawful circumstances, Officer LaTorre’s inspection did not breach defendant’s privacy interest in such belongings since any such right previously existing was relinquished by the defendant when he initially acquiesced to having his property inventoried. Id.

The trial court made no error in its denial of defendant’s motion to suppress dated April 13, 1981.

VI.

The defendant argues that his detention by Officer McGowan prior to his arrest on the concealed weapons charge constituted an illegal stop under the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As a result, defendant argues, all items seized as a result of the “illegal” stop should be suppressed from evidence as “fruits of the poisonous tree” from which they issued. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We disagree.

We find, under the circumstances of this case, that no unlawful intrusion occurred when Officer McGowan approached Mr. Lightbourne for the purpose of investigating a suspicious car called to his attention by a concerned citizen of the community. Although defendant is correct in his assertion that the officers had no probable cause or well-founded suspicion that the defendant was about to commit or had committed any crime, under the instant facts such a showing was not necessary. The officers were responding to a call and were not acting on their own “hunch” as in the “roving patrol” cases.

In Terry, the Supreme Court noted that, “[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the street.” 392 U.S. at 34, 88 S.Ct. at 1886 (White, J., concurring). This is so even under normal conditions with officers having no concrete suspicion on which to rely. Of course in such situations a person would be under no duty to remain, and could continue on his way if he chose to do so. That person, instructed the Terry Court, “absent special circumstances may not be detained or frisked but may refuse to cooperate and go on his way.” Id. (Emphasis added.)

There exists, therefore, a distinction between an intrusion by police amounting to a “seizure” of the person and an encounter which intrudes upon no constitutionally protected interest. Terry v. Ohio; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); United States v. Elmore, 595 F.2d 1036 (5th Cir.1979), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980).

Officer McGowan’s investigation of the suspicious vehicle in this case does not rise to the level of an unconstitutional stop or seizure. Officer McGowan simply approached the parked car, asked defendant a few simple questions as to the reason for his presence there, his current address, and then ran a routine check on defendant’s car and identification. Surely the average, reasonable person, under similar circumstances, would not find the officer’s actions unduly harsh. There is nothing in the record that would indicate that prior to defendant voluntarily relinquishing his driver’s license to Officer McGowan he was not free to express an alternative wish to go on his way. The Court need not consider here the question of what would happen if a citizen, asked for identification under somewhat similar conditions, and who upon declining to surrender such identification, was placed under arrest. The implication is that in reality, rather than theory, one who has been so confronted by an officer is not free to leave.

The Supreme Court has repeatedly acknowledged the need for police questioning as a tool for effective enforcement of our criminal laws. United States v. Mendenhall. Florida courts have recognized that, in this context, law enforcement officers can indeed initiate contacts with citizens without creating a stop and seizure situation.

In State v. Rawlings, 391 So.2d 269 (Fla. 4th DCA), petition denied, 399 So.2d 1145 (Fla.1981), an individual heard some shots outside his home and, upon investigating saw someone outside, but could not identify him. He called the police who arrived on the scene to find the defendant and a woman on the street in the vicinity. The officer engaged the defendant in conversation and while doing so, noticed the outline of a gun in his back pocket. The officer then conducted a pat-down search which revealed a .25 caliber pistol. The court in Rawlings held that the police in that case did not have a founded suspicion to justify a detention of the defendant. However, while the court agreed that there was insufficient evidence of an articulable basis of founded suspicion presented at the hearing on the motion to suppress, it nevertheless found that the police activity in this case did not constitute a detention of the defendant. Thus no showing of founded suspicion was required to justify the encounter. The court went on to add:

A mere contact between a citizen and a police officer which evokes voluntary cooperation on the part of the citizen is not a “seizure” within the meaning of the Fourth Amendment. If, during a lawful and extremely temporary encounter between a police officer and a citizen, probable cause is formulated to believe that the citizen is carrying a dangerous weapon, a frisk of that citizen’s person is entirely justified to insure the safety of the police officer.

Id. at 270.

In Carter v. State, 370 So.2d 1181 (Fla. 4th DCA), cert. denied, 378 So.2d 343 (Fla.1979), the court, citing Mullins v. State, 366 So.2d 1162 (Fla.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979), recognized that there would be instances where legitimate contact between police officers and citizens, not based upon founded suspicion of criminal activity or probable cause, might result in the subsequent arrest of the citizen for a crime detected by the officer as a result of the legitimate contact.

In the case sub judice we find that no “stop” or “seizure” of the defendant within the meaning of Terry and its progeny occurred prior to his removal from the car by Officer McGowan to conduct the pat-down search. Officer McGowan was simply performing his duty as a police officer to investigate a citizen complaint, motivated by a concern that the defendant might be in need of assistance. Once on the scene, the officer acted prudently for the protection of the safety of the concerned citizen and his neighbors in the community when he proceeded to check out the defendant’s car and identification.

Given the fact that the initial contact was justified, the ultimate pat-down was also justified in that defendant’s furtive movements and nervous appearance when observed by Officer McGowan formulated a reasonable ground to believe that the defendant was armed and potentially dangerous. United States v. Tharpe, 526 F.2d 326 (5th Cir.1976); Jackson v. State, 403 So.2d 1116 (Fla. 5th DCA 1981). The officer in this case acted with prudence and was entitled to execute the limited search for weapons which might be used to assault him. Terry v. Ohio.

Based on the foregoing, we hold the officer’s initial contact with the defendant to have been legitimately initiated for the purpose of investigating the citizen’s call regarding a suspicious vehicle. We further hold that such contact as is evidenced by these facts did not constitute a stop or seizure of the defendant under Terry principles. Finally, the objectively discernible actions of the defendant provided Officer McGowan with a reasonable ground for searching the defendant for dangerous weapons. As such, we therefore hold that the gun and subsequent items found as a result of the search of the defendant’s car incident to his lawful arrest on the weapon’s charge, were correctly admitted into evidence by the trial court, and the court did not err in denying defendant’s motion to suppress said items.

VII.

Defendant argues that certain videotaped statements made of him while he was being interrogated by police officers should have been held inadmissible under the rationale of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree.

The record reflects that defendant was twice advised of his Miranda rights; at the Marion County jail when picked up, and prior to his interrogation at the Sheriff’s Department Operations Center on February 3, 1981. When asked if he understood his rights, the defendant stated that he did, and that he had no reason not to talk to the interrogators. The interview was promptly terminated when defendant finally expressed his wish to state nothing further.

Defendant argues that sometime prior to the termination of the interview, he sought to conclude the questioning by asking whether he had to continue. This inquiry, argues the defendant, evidenced a reassertion of his right to cut off the interrogation, and therefore any statements subsequently made by defendant should have been inadmissible due to a lack of a second waiver of his Miranda rights.

The thrust of defendant’s argument goes to whether or not the defendant did indeed reassert his right to remain silent when he inquired whether or not he must continue the interview. Under the facts of this case we cannot say that defendant wished to conclude the interview at the time he made his inquiry, and even if he did so intend, his subsequent actions evidenced a second knowing waiver after such attempt.

An express statement by an accused that he fully understands and waives his Miranda rights is not necessary for a valid waiver of those rights. This is as true mid-interview as it is at its inception. Waiver may be shown by attendant circumstances and by actions of the accused. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); United States v. Hayes, 385 F.2d 375 (4th Cir.1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968); State v. Craig, 237 So.2d 737 (Fla.1970).

The fact that defendant knew of his right to end the interrogation is made manifest by his finally stating that he wished to say nothing further and ending his conversation at that point. We find that the mid-interview inquiry made by defendant did not rise to the level of a reassertion of his Miranda rights requiring a second waiver of those rights. However, even if such inquiry were to be held tantamount to a reassertion, we find that by his actions defendant once again waived his rights.

After the defendant questioned his need to go on, he voluntarily resumed his responses to the interviewers. There has been no showing made of any coercive measures taken by the interviewing officers to induce further testimony from defendant. Indeed, quite the opposite is reflected by the record. It is therefore apparent in this case that defendant’s conduct evidenced a voluntary waiver of his known constitutional rights throughout the interrogation process.

We find that the trial court properly considered the videotape and surrounding testimony in this case and clearly determined that the statements were freely and voluntarily made in light of Miranda. Consequently, the trial court did not err in admitting into evidence, over defendant’s motion to suppress, the statements made by defendant during his custodial interrogation on February 3, 1981.

VIII.

The defendant argues that the trial court erred in denying defendant’s motion to impose sanctions under Florida Rule of Criminal Procedure 3.220(j), for the state’s failure to properly notify defendant of a deposition to be taken of a listed state witness. See Fla.R.Crim.P. 3.220(d).

As the record reflects, defendant’s admitted motivation for filing the motion in the first place was to insure that all future depositions would be properly noticed, thus assuring defendant’s opportunity to be present at those depositions. The trial court, after a hearing on the motion, ordered that all future depositions be properly noticed, thereby satisfying defendant’s concern.

Finding that a motion under Rule 3.220(j) is properly addressed to the discretion of the trial court, and finding no abuse of discretion in this case, we hold there was no error in the court’s decision not to impose sanctions greater than admonishment of both parties, as was done in this case.

IX.

The defendant claims that the death sentence imposed upon him in this case is not justified, arguing that it was based upon inappropriate aggravating circumstances, that the court failed to consider an unenu-merated mitigating circumstance, and that the mitigating circumstances outweigh the aggravating circumstances.

In the instant case, following presentation of evidence at the penalty phase, the jury returned an advisory recommendation of death. In imposing the death penalty in this case the trial court found five aggravating and two mitigating factors. Of course the sentencing procedure is not merely a counting contest in which the number of aggravating factors is compared to the number of mitigating factors, with all factors having equal weight. State v. Dixon, 283 So.2d 1 (Fla.1973). Rather the process involves a reasoned judgment as to what factual circumstances weigh heavily toward or against the imposition of the ultimate penalty.

We will first consider the mitigating factors due to their relatively straightforward import. The trial judge found that the defendant was twenty-one years old at the time of the crime and had no significant history of prior criminal activity. § 921.-141(6)(a) and (g), Fla.Stat. (1981). Contrary to defendant’s assertions, we find that the defendant’s lack of past history of violence was not overlooked in consideration of sentence, but rather was not proved by the defendant. The trial court properly considered all matters.

We find no error in the court’s failure to find the unenumerated mitigating factor of defendant’s previous lack of violent history. Moreover, as will be shown hereafter, the strength of the aggravating circumstances in this case would have supported the imposition of the death penalty even had defendant’s lack of past violent history been found as a mitigating factor.

Next we review the aggravating circumstances found to exist in this case.

Aggravating Circumstances

1. The capital felony was committed while the defendant was engaged in the commission of a burglary and sexual battery. § 921.141(5)(d), Fla.Stat. (1981). The evidence presented to the jury in this case, and considered by the learned trial judge at sentencing was clearly sufficient to establish the burglary and sexual battery. A screen had been cut and a window of victim’s house had been pried open and broken. Testimony revealed that the defendant had admitted surprising the victim in her home, that he took some money, a necklace, and a small silver coin bank. The phone cords had been severed. Viable sperm and semen traces were discovered in the victim’s vagina indicating sexual relations at approximately the time of death. The defendant’s blood type was consistent with semen and blood tests and factors present therein as testified to by experts. Pubic hair found at the crime scene was miscroscopically matched with those of the defendant. These facts and others contained in the record in this case are clearly sufficient to support the findings of burglary and sexual battery. As such they also stand sufficiently strong to support the aggravating circumstance under section 921.141(5)(d).

The evidence was sufficient to show premeditated design. During the burglary the victim was forced into acts of oral sex and intercourse as she begged him not to kill her. Despite her pleas that he not kill her, defendant fired a shot striking her on the left side of the head. The weapon was held against a pillow at the time it was fired. The examining doctor said she bled to death. Defendant’s argument with respect to the unconstitutional effect of “automatic” aggravating circumstances solely in the felony murder context is inappropriate in this case.

2. The capital felony was committed for the purpose of avoiding or preventing a lawful arrest. § 921.141(5)(e), Fla. Stat. (1981). Once again the evidence presented at trial strongly supports this aggravating circumstance. Defendant admitted knowing the victim. Plainly the defendant killed to avoid identification and arrest. Proof of the requisite intent to avoid detection is strong in this case. See Riley v. State, 366 So.2d 19 (Fla.1978).

3. The capital felony was committed for pecuniary gain. § 921.141(5)(f), Fla.Stat. (1981). Defendant says that the consideration of murder for pecuniary gain and murder while engaged in a burglary is a doubling of aggravating circumstances. We have held in applying the aggravating circumstances that the trial court does not improperly duplicate robbery and pecuniary gain where defendant committed the crime of rape in conjunction with the murder. Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981). There was adequate proof of rape.

4. The capital felony was especially heinous, atrocious, or cruel. § 921.-141(5)(h), Fla.Stat. (1981). Taking into consideration the totality of circumstances in this case, the murder and the events leading up to its consummation were carried out in an unnecessarily torturous way toward the victim. The record reflects that the victim was forced to submit to sexual relations with defendant prior to her death, while pleading for her life, and we cannot say that the trial court’s finding of heinousness is at material variance with the facts.

5. The capital felony was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. § 921.141(5)(i), Fla.Stat. (1981). We find that the defendant cut phone lines, entered the house at a time when others would most likely not be present, and effected the execution-style killing using a pillow placed between the murder weapon and the victim’s head. As such, the trial court could properly find this aggravating circumstance.

For the foregoing reasons it is held that the trial court did not err in imposing the death sentence upon the defendant in accordance with the advisory recommendation of the jury.

In the performance of our constitutional duty we have reviewed the entire record below and have considered all issues presented on appeal. Therefore we now hold that the defendant’s judgment of conviction and sentence of death are hereby affirmed.

It is so ordered.

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

McDONALD, J., concurs in the conviction, but dissents from the sentence.

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I reluctantly dissent because I find the recent United States Supreme Court decision in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), mandates a reversal under the circumstances of this case. A jailhouse informer was placed in a cell adjacent to the appellant’s and was requested to keep his ears open. The investigating officer understood that the informant expected something in return for his information, and the informant was paid two hundred dollars in cash, in addition to being released nineteen days early in return for his services. These factors make the informant an agent of the state under the dictates of Henry, which requires suppression of the statements made by the appellant to the informant in the absence of Miranda warnings. I find we have no choice but to grant a new trial.


source: Caselaw Access Project

author: BOYD, Justice. EHRLICH, Justice,

license: Public Domain

text:
    BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, Petitioner, v. Thomas G. GRICE and Lilia Grice, Personal Representatives of the Estate of Debbie Diane Grice, Respondents.
    No. 62174.
    Supreme Court of Florida.
    Sept. 22, 1983.

      Dominic M. Caparello of Messer, Rhodes & Vickers, Tallahassee, for petitioner.
    Wilmer H. Mitchell, Pensacola, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for review of the district court of appeal decision in Grice v. Board of County Commissioners of Madison County, 413 So.2d 88 (Fla. 1st DCA 1982), which that court certified as having passed upon a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondents brought this wrongful death action on behalf of their deceased minor daughter against Tallahassee Memorial Hospital and the petitioner, Madison County. The complaint alleged that the respondents had contracted with Tallahassee Memorial Hospital to transport their daughter by ambulance to Gainesville, where the seriously ill girl was to have received medical treatment. It was alleged that while in Madison County the ambulance malfunctioned and became inoperable, requiring transfer of the patient to an ambulance owned and operated by Madison County. The second ambulance also failed, so that a third ambulance had to be obtained to transport the girl to the place of treatment. The plaintiffs alleged that both ambulances were defective in that they were improperly maintained or equipped and that the substantial delay resulting from such defects caused or contributed to their daughter’s death.

The suit was filed in Leon County, the place where the original contractual relationship was entered into and the place of residence of one of the two defendants. Both defendants filed motions to dismiss. Madison County moved to dismiss on the ground that it had the right to be sued in the county of its official residence. The trial court granted the motions of both defendants and ordered the complaint dismissed. Plaintiffs-respondents moved for rehearing which was denied.

Respondents appealed that portion of the trial court’s order that dismissed their complaint as to Madison County for improper venue. The district court of appeal reversed, holding that the home venue privilege is not absolute and must give way to other considerations where two governmental entities residing in different counties are sued as joint tortfeasors and the actions are unseverable. The district court certified the following as a question of great public importance:

Is an exception to the home venue privilege created when a plaintiff states an unseverable cause of action against joint tortfeasors which are governmental entities in separate counties?

413 So.2d at 90. We intend to modify the question somewhat in order to ground it on the facts we believe are properly before us. Although the district court opined that it would be “highly impractical” for the plaintiffs to maintain separate actions against the two defendants, we do not find that severability was specifically decided by the trial court or that there was a basis in the record for the appellate court to have determined the issue of severability. Nor do we believe that it was established that Tallahassee Memorial Hospital is an entity entitled to the home venue privilege. Furthermore, the question as we see it is not what circumstances will per se require an exception, but what circumstances will allow an exception as a discretionary matter. We find that the real issue presented by this case is whether a trial court should have the discretion to override the home venue privilege when a state agency or subdivision is sued as a joint tortfeasor. Subject to the qualifications discussed below, we answer this question in the affirmative and approve in part the decision of the district court of appeal.

Before discussing the principal issue we must first address a preliminary issue raised by the petitioner concerning the district court’s jurisdiction over the appeal taken by the respondents. Petitioner points out that although the notice of appeal was filed within thirty days of the trial court’s second order ruling that venue was improper, it was not filed within thirty days of the original order. Petitioner argues that the original order was interlocutory in nature so that an appeal had to be filed within thirty days and that the time was not tolled by the filing of a motion for rehearing since such a motion is not authorized by the rules. See Fla.R.App.P. 9.020(g) & 9.130(b). Although an order concerning venue is ordinarily considered interlocutory, it may result in a final order dismissing the complaint. An order on a motion to dismiss may not be final, but an order which actually dismisses the complaint is. See Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980). Since the original order in question here actually dismissed the complaint, it was a final order subject to a motion for rehearing. The filing of the motion for rehearing therefore tolled the time for filing the appeal. Since the notice of appeal was filed within thirty days of the trial court’s denial of the motion for rehearing, the district court of appeal had jurisdiction.

Returning to the main issue at hand, we recognize that Florida is one of the jurisdictions in which the home county venue privilege for government bodies is derived from judicial development of the common law rather than legislative act. See Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). Most states have statutes requiring that governmental entities be sued where their headquarters are located. Annot., 48 A.L.R.2d 423 (1956). Where venue is thus regulated by statute, courts are often reluctant to interfere with the express provision of the legislature. See State v. Superior Court of County of Pima, 120 Ariz. 273, 585 P.2d 882 (1978). There is a modern trend, however, toward allowing exceptions to such statutory requirements where government bodies are sued as joint tortfeasors. See Lawless v. Village of Park Forest South, 108 Ill. App.3d 191, 63 Ill.Dec. 936, 438 N.E.2d 1299 (1982); Hoffman v. Bos, 56 Mich.App. 448, 224 N.W.2d 107 (1974); Peaceman v. Cades, 272 Pa.Super. 568, 416 A.2d 1042 (1979). In the cited cases, the courts recognized that even under modern venue statutes the right of governmental defendants to insist on venue at their headquarters is not absolute. Lawless v. Village of Park Forest South. Modem methods of communication and transportation have weakened the policy reasons supporting the privilege while current crowded court docket conditions have strengthened the policy reasons for avoiding duplicative litigation if possible. Hoffman v. Bos.

In the present case the trial court, in granting the county’s motion to dismiss for improper venue, relied upon Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). There we held that the statutory waiver of sovereign immunity did not affect the common-law privilege of the state and its agencies and subdivisions to be sued in the county where the principal headquarters were located. The Court declined to make an exception to the privilege for actions based in tort. We reasoned that the home venue privilege “promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.” 354 So.2d at 364.

Frequently, however, these beneficial purposes are not furthered when the governmental defendant is sued as a joint tort-feasor. In such cases the district courts, in attempting to follow the dictates of Carlile, have been ordering severance of lawsuits that would normally be tried in a single proceeding. See, e.g., Wagner v. Nova University, Inc., 397 So.2d 375 (Fla. 4th DCA 1981); County of Volusia v. Atlantic International Investment Corp., 394 So.2d 477 (Fla. 1st DCA 1981); Liberty Mutual Insurance Co. v. Ford, 392 So.2d 354 (Fla. 4th DCA 1981); Lake County v. Friedel, 387 So.2d 514 (Fla. 5th DCA 1980); State Department of Transportation v. Bromante, 365 So.2d 388 (Fla. 4th DCA 1979); City of Boca Raton v. Walker, 354 So.2d 440 (Fla. 3d DCA), cert. denied, 359 So.2d 1221 (1978). The result, of course, is separate proceedings requiring increased use of public resources. The benefit of money saved by state agencies and subdivisions by not having to defend against lawsuits filed outside their home counties must now be weighed against the increased costs incurred in the operation of the courts, costs which are paid in substantial part by all taxpayers. Therefore, the objective of minimizing public expenditures in the operation of the courts is not furthered when the home venue privilege results in multiple lawsuits. We therefore hold, as did the district court, that the home venue privilege for government entities is not absolute.

We hold further that a trial court has discretion to dispense with the home venue privilege when a governmental body is sued as a joint tortfeasor. The exercise of this discretion must be guided by considerations of justice, fairness, and convenience under the circumstances of the ease. In its discretion the trial court may retain the entire case, sever and transfer the cause of action against the entity asserting the privilege if it is severable, or transfer the entire case. The home venue privilege, although not absolute, should be given substantial consideration in this process along with the other circumstances presented and the interests of the other parties.

The decision of the district court of appeal is approved in part and quashed in part. This cause is remanded with directions that the trial court reconsider Madison County’s motion to dismiss for improper venue in a manner consistent with this opinion.

It is so ordered.

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

EHRLICH, J., concurs specially with an opinion, in which ADKINS and OVERTON, JJ., concur.

EHRLICH, Justice,

specially concurring.

I concur with the majority opinion, but I write separately to emphasize a procedural detail which may serve to avoid potential injustice.

Debbie Grice died on March 1, 1978. Her parents instituted this action on February 29, 1980, the last possible day before the statute of limitations barred their claim. See § 95.11(4)(d), Fla.Stat. (1977). Although the rules of civil procedure specify that an order to dismiss a claim grounded on a venue objection is not ordinarily an adjudication on the merits and therefore does not bar refiling the case in the appropriate venue, Florida Rule of Civil Procedure 1.420, in this instance such a dismissal did foreclose the possibility of refiling because the claim was by then barred by the statute of limitations.

The majority opinion states that, in the face of an appropriate venue objection, the action may be severed and transferred or the entire action may be transferred pursuant to Florida Rule of Civil Procedure 1.060(b). Transferring an action circumvents the operation of the statute of limitations and promotes the ends of justice. I would adopt Henry Trawick’s eminently practical and legally sound delineation of the common law distinction between defensive motions which bar an action and defensive motions which abate an action, both of which are included in Florida Rule of Civil Procedure 1.140(b). H. Trawick, Trawick’s Florida Practice and Procedure § 10-3 (1981 ed.) The former address flaws in the merits of the case — lack of subject-matter jurisdiction, failure to state a claim upon which relief can be granted — and support an order dismissing the cause of action. The other four defenses listed in rule 1.140(b) are technical flaws in the manner in which the case is initiated and should result in an order holding the case in abeyance until a curative action can be taken. In the instance of a venue objection, the curative action should be automatic transfer to the proper venue. Id. §§ 5-7, 5-8.

The occasions on which a statute of limitations bar and an order dismissing a cause of action for improper venue combine to foreclose a valid claim are probably rare. Nonetheless, it ill behooves us to condone a harsh result, however rare, when the rules of procedure provide a practical and equitable means of avoiding that result entirely.

ADKINS and OVERTON, JJ., concur.


author: BERANEK, Judge. PER. CURIAM. ANSTEAD, Chief Judge,

text:
    Frank Frederick TRUCCI, Appellant, v. STATE of Florida, Appellee.
    No. 82-1792.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Oct. 12, 1983.
    Richard L. Jorandby, Public Defender, Margaret Good, Asst. Public Defender, and Tom Wm. Odom, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was charged with attempted first degree murder and aggravated assault and after trial was convicted of aggravated battery and aggravated assault. He appeals raising two points, both of which relate to his mental status — competency to stand trial and insanity at the time of the offense. The facts and circumstances relating to the appellate issues are as follows.

Appellant is a 35 year old Vietnam war veteran. A psychologist’s testimony and appellant’s medical history established an ongoing pattern of severe mental disturbances. Appellant has a 100% psychiatric disability from the United States Air Force. He was first diagnosed as a chronic schizophrenic in a Veterans’ Administration Hospital in 1970. He has received periodic treatment and medication from the Veterans’ Administration. He has previously undergone court-ordered psychiatric treatment stemming from criminal mischief charges. Appellant was shown to suffer from various personal problems. His relationships with his parents were abnormal. He had few friends and spent much of his time drinking in bars where he frequently got into fights. He was diagnosed as a chronic alcoholic.

On the night in question, defendant was sitting in a bar alone. He sat by himself talking out loud and walking around in circles staring at dots on the dance floor. He stumbled as he walked and his speech was slurred beyond understanding. A patron of the bar testified that he heard appellant say something to a bar maid which the patron deemed offensive. As a result, the patron hit the defendant in the face and he fell to the floor where he laid for about five minutes. He got up, left the bar, came back with a gun, and shot the patron. He said nothing before the shooting or afterward. His recollection of the incident was bizarre and not in accordance with any of the witnesses.

Prior to trial, defense counsel had Dr. Weitz, a clinical psychologist, evaluate the defendant for purposes of determining his competency to stand trial. Dr. Weitz concluded Mr. Trucci was mentally ill. He detected disoriented thinking, memory impairment, delusions, moods of depression, and various other severe psychological emotional problems. Dr. Weitz was of the firm opinion that Trucci was not competent to stand trial.

The court considered the question of competency to stand trial and after being presented with the opinion of Dr. Weitz and argument of counsel, concluded, over defense objections, that Trucci was competent. The standard for competency is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as a factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Also see Fla.R.Crim.P. 3.211(a). Certainly, the trial court is not absolutely bound by expert opinion as to competency. On the other hand, courts should not ignore uncontested expert testimony particularly when strongly supported by other relevant evidence. Lane v. State, 388 So.2d 1022 (Fla.1980). A further problem is present in this case regarding the court’s decision on competency. When defendant was initially arrested, he went through a screening process whereby another psychologist gave him a brief examination. A fill-in-the blanks type form was checked by this psychologist and although never formally introduced into evidence, this form was considered by the court in determining defendant’s competency. The consideration of this form was over objection of the defendant. It thus appears that the court chose to disregard the admissible evidence on the question and may well have improperly considered evidence which should have been excluded from an evidentiary standpoint.

We thus conclude that the court erred in determining the defendant’s competency. The defendant should have been found incompetent to stand trial and all proceedings thereafter constituted a violation of due process.

We therefore reverse the defendant’s conviction and vacate the order finding him to be competent. The matter is remanded for further proceedings which shall include a redetermination of competency before any subsequent trial. We do not decide the issue of defendant’s sanity at the time of the offense. Defendant is entitled to have this issue decided when, if ever, he is determined to be competent to assist his counsel on the issue.

REVERSED AND REMANDED.

ANSTEAD, C.J., and GLICKSTEIN, J., concur.

ON REHEARING

PER. CURIAM.

The motion for rehearing is denied.

BERANEK and GLICKSTEIN, JJ., concur.

ANSTEAD, C.J., dissents in part with opinion.

ANSTEAD, Chief Judge,

dissenting in part on rehearing:

I agree with appellant’s contention on rehearing that we must deal with the issue of sufficiency of the evidence. Regardless of our ruling on the issue of his competency to stand trial, appellant would be entitled to be discharged if the evidence was insufficient to sustain his conviction. Cf. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). However, upon review of the evidence I believe the evidence sufficient to sustain his conviction and, despite the substantial evidence of his incompetency, to support the jury’s rejection of the defense of insanity. Collins v. State, 431 So.2d 225 (Fla. 4th DCA 1983). Accordingly, I would grant rehearing to the extent of determining the issue of sufficiency of the evidence and hold that the evidence was sufficient.


author: LEHAN, Judge. PER CURIAM.

text:
    George WICKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-274.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.
    Rehearing Denied Oct. 5, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant was convicted of first degree unarmed burglary with assault and first degree sexual battery and sentenced to 100 years and 30 years, respectively. We have considered the points raised by defendant on appeal and find them to be without merit except for certain aspects of the sentence which require us to reverse and remand.

First, the case must be remanded in light of the state’s admission that “due to an apparent clerical oversight the judgment and sentence included in this case fails to reflect jail credit for time served.” If on remand the trial court determines that defendant is entitled to credit for jail time, the specific amount must be included in the sentence. Section 921.161(1), Fla.Stat. (1981); Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975).

Second, the trial court retained jurisdiction over one-third of each of the consecutive sentences imposed. However, for the purpose of retention of jurisdiction in this case, the authority of the court applies only to one-third of the total consecutive sentences imposed. Section 947.16(3), Fla.Stat. (1981); Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983); Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982). The 1982 amendment to section 947.16(3) is inapplicable because its effective date was after the crimes were committed. See Adams, supra; Cf. State v. Williams, 397 So.2d 663 (Fla.1981).

We therefore affirm the appellant’s convictions and remand for correction and reconsideration of the sentences consistent herewith.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

The appellant’s motion for rehearing en banc is denied. We adhere to our holding that the 1982 amendment to section 947.-16(3), Florida Statutes (Supp.1982), does not apply to offenses committed prior to the effective date of that amendment. See State v. Williams, 397 So.2d 663 (Fla.1981). This court’s opinion in Redding v. State, 431 So.2d 706 (Fla. 2d DCA 1983), does not show the date on which the offense in that case was committed.

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


author: SCHOONOVER, Judge.

text:
    George WICKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-273.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, George Wicker, Jr., has appealed from the judgments and sentences entered pursuant to jury verdicts finding him guilty of armed burglary with assault, armed sexual battery, and armed robbery.

We find no merit in appellant’s contention that he was improperly convicted and accordingly affirm the judgments entered by the trial court. However, we agree that the trial court erred when imposing sentences upon the appellant.

First, the appellant was sentenced to serve seventy-five years on each of the charges, and the sentences for armed sexual battery and armed robbery were to run consecutive to the armed burglary assault charge. The court retained jurisdiction over one-third of each sentence.

At the time the appellant committed the offenses, for which he was convicted, section 947.16(3), Florida Statutes (1981), provided in part:

When any person is convicted of two or more felonies and consecutive sentences are imposed, then the jurisdiction of the trial court judge as provided herein shall apply to one-third of the total consecutive sentences imposed.

Accordingly, the trial court had the authority to retain jurisdiction to review any parole commission release order for one-third of the total consecutive sentences imposed, but not for the first one-third of each of the consecutive sentences imposed. Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983); Wicker v. State, 438 So.2d 398 (Fla. 2d DCA 1983); Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982).

Additionally, although the sentences indicate the appellant is to receive credit for “time served,” they do not set forth a specific period of credit time as required by section 921.161(1), Florida Statutes (1981). Moore v. State, 428 So.2d 789 (Fla. 2d DCA 1983); Wicker.

We, therefore, affirm the appellant’s convictions but strike each of the special provisions for retention of jurisdiction and remand to the trial court with directions to reconsider the period of retention in accordance with section 947.16(3), Florida Statutes (1981). Additionally, if the court determines that the appellant is entitled to receive credit for time served, the specific amount of such credit must be included in the sentence.

REVERSED and REMANDED.

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


author: PER CURIAM. WALDEN, Judge,

text:
    George THEODOROU, M.D., and Radiology Associates, P.A., Appellants, v. Jeffrey BURLING, Appellee.
    No. 81-2291.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearings Denied Oct. 27, 1983.

      Robert T. Bergin, Jr., West Palm Beach, for appellants.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P.A., and Edna L. Caruso, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an order disallowing attorneys’ fees, based upon an interpretation of Section 768.56, Florida Statutes (1980). A brief synopsis of procedural facts is pertinent to the issue presented for review.

A complaint for medical malpractice was filed against various defendants, excluding appellants, on February 21,1980. A second amended complaint was filed on November 16, 1980, adding appellants as parties defendant. Ultimately these defendants were found not to have been guilty of negligence or medical malpractice. Nevertheless, their claims for attorneys’ fees were disallowed, whereupon they filed their notice of appeal.

Florida Statute 768.56 provides in part:

(1) Except as otherwise provided by law, the court shall award a reasonable attorney’s fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization; ....
(2) This section shall not apply to any action filed before July 1, 1980.

The trial court reasoned that the filing of the second amended complaint related back to the original filing of the “action” which was prior to July 1,1980, so that the statute was not activated.

Appellant takes the position that the issue presented by these facts is analogous to an issue which sometimes arises in a statute of limitations context illustrated by the following excerpt from Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977) cert. dismissed 359 So.2d 1217 (Fla.1978).

An amendment which merely corrects a misnomer might well relate back to the date the complaint was originally filed but this relation back rule is inapplicable where the effect is to bring new parties into the suit. Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970)....

Id. at 563. A similar rationale emerges from the third district case of Horace Mann Insurance Company v. DeMirza, 312 So.2d 501 (Fla. 3d DCA 1975) where suit was filed two days before expiration of the limitations period. Contra Cherney v. Moody, 413 So.2d 866 (Fla. 1st DCA 1982). The court held that the defendant was precluded from filing a counterclaim because of the statute of limitations. This conclusion is consistent with Florida Rule of Civil Procedure 1.050 (1983).

Adapting this rationale to the instant situation would result in a holding that the action, as to appellants, was filed at the time of the filing of the second amended complaint, and thus the relation-back doctrine would be inapplicable.

Appellee, on the other hand, suggests that the statute of limitations analogy is inappropriate, urging instead that the reasoning of a case involving the Medical Mediation Act more logically controls here.

A case on point is MEDEL v. VALENTINE, 376 So.2d 1154 (Fla.1979). That case concerned the applicability of the Medical Mediation Act. An exemption to the Act, set forth in § 768.41 [sic] (10), provided that the requirement that a claim be filed in mediation was not applicable to any “case” where formal suit was filed prior to the effective date of the statute. In MEDEL the lawsuit was first instituted against an obstetrician before the effective date of the statute. An anesthesiologist was added as a defendant after the effective date of the statute, and was tried in mediation first. The Florida Supreme Court held that the filing of the common law action against the obstetrician before the effective date of the Act applied to all elements of the controversy, including the joinder of additional defendants. Accordingly, the claim against the anesthesiologist did not fall within, the new statute, even though the claim was filed after its effective date:
By its terms the Medical Mediation Act “shall not be applicable to any case in which formal suit has been instituted, prior to ... July 1, 1975.” § 768.-133(10), Fla.Stat. (1975). We read subsection (10) to exempt from the provisions of the Medical Mediation Act all elements of a controversy, including the joinder of additional defendants, which arise from a single medical transaction or a series of related medical transactions where suit was filed prior to July 1, 1975. The allegedly negligent acts of Drs. Valentine and Cohen were components of essentially one transaction — the timing and delivery of the Medel baby. Hence the filing of the complaint against Dr. Valentine served to exempt the entire controversy, notwithstanding Dr. Cohen’s joinder subsequent to the Act’s effective date. (Emphasis added)
Applying MEDEL to this case, requires a finding that since Plaintiff’s “action” was filed prior to the effective date of the attorney’s fee statute, the addition of DR. THEODOROU as a defendant at a later date would not be controlled by the statute.

In weighing the respective theories advanced by the parties, we note that it cannot be doubted that the purpose of the statute was remedial and that it should be construed liberally to effectuate the legislative purpose. At the same time, however, a statute that is clear and unambiguous must be accorded its common sense meaning. It is not for the judiciary to rewrite statutes even to accomplish laudable ends, whether or not they were within the contemplation of the legislature. The statute on its face is not to apply to any “action” filed before July 1, 1980. Our task is to find, not to create, the definition of “action.” An action is “[t]he legal and formal demand of one’s right from another person or party made and insisted on in a court of justice.” Black’s Law Dictionary 49 (4th Ed.Rev. 1968). An action is deemed to have been commenced when the complaint is filed except that ancillary proceedings are deemed to have been commenced when the initial pleading setting forth the ancillary claim is filed. Fla.R.Civ.P. 1.050 (1983). It would appear from the foregoing that the word “action” is, for all intents and purposes, at least in this context, synonymous with the word “case,” used in the Medical Mediation Act. The two terms were defined and used synonomously in Mount Sinai Hospital of Greater Miami, Inc. v. Mora, 342 So.2d 1063, 1064 (Fla. 3d DCA 1977) where the court stated:

In First National Bank of Miami v. Bebinger, 99 Fla. 1290, 128 So. 862, 688 (1930), it was said: “The words ‘case’ or ‘cause,’ when used as legal terms, are generally understood as meaning a judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected or wrongs are prevented or redressed.” In that case the Supreme Court held that supplementary proceedings taken in a cause for enforcement of a judgment which had been entered therein were part of the case or action in which the judgment was rendered. In Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 108 (2 Cir.1953) cited by appellant, the court said: “ * * * the word ‘action’ as used in the Rules [of Civil Practice] denotes the entire controversy”. See State Department v. Crill, 99 Fla. 1012, 128 So. 412, 415 (1930); State v. Furen, 118 So.2d 6, 9 (Fla.1960).

The supreme court in Medel placed its imprimatur upon the logic and holding of the Mt. Sinai case, reaching the same conclusion.

In Hickox v. University Community Hospital, Inc., 384 So.2d 160 (Fla. 2d DCA 1980) the second district reiterated the view that the term “case” encompasses all elements of a controversy arising “from a single medical transaction or a series of related medical transactions” relying on the Medel case. We do not, however, agree with the second district’s characterization of the Medel result as based upon the constitutional ground of equal protection.

Having equated “action” to “case,” we affirm the order on appeal on the basis of the foregoing authorities and reasoning. This result makes it unnecessary to consider the constitutional issue also raised and argued by the parties.

AFFIRMED.

HERSEY and HURLEY, JJ., concur.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

In my judgment appellants are entitled to an award of their attorney fees since they were brought into the action by amended complaint as party defendants after the critical statutory date of July 1, 1980. Until then appellants had no interest or standing in the suit.

Simplistically, I think that a law suit starts when a complaint is filed against an individual, as concerns that particular individual. Had plaintiff wished to avoid the statute he could have named appellants in the initial complaint.

I feel that the statute of limitations’ cases ably outlined in the majority opinion are applicable, and particularly the quote from Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977).

I would reverse and remand with instructions to allow appellants their attorney fees per Section 768.56, Florida Statutes (1980).


author: PER CURIAM.

text:
    Alirio ROJAS, M.D. and Alirio Rojas, M.D., P.A., Appellants, v. Mary DUFFY, Appellee.
    No. 82-890.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Oct. 26, 1983.
    Shelley H. Leinicke, Miami, and Lyndall Lambert of Law Offices of Howard E. Bar-wick, P.A., Miami Shores, for appellants.
    William J. Zloch of Patterson & Maloney, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed and remanded with directions to the trial court to determine and award a reasonable attorney’s fee to appellants pursuant to Section 768.56, Florida Statutes (1981). See Florida Medical Center, Inc. v. Susan Ann Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983).

DOWNEY, LETTS and DELL, JJ., concur.


author: LETTS, Judge.

text:
    Omar BLANCO and Enrique Gonzalez, Appellants, v. STATE of Florida, Appellee.
    Nos. 82-1095, 82-1336.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Oct. 26, 1983.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The defendants appeal their convictions for armed robbery and armed burglary claiming that they were denied their right to “backstrike” a juror and that their apartment was subjected to an illegal search and seizure. We agree on both counts and reverse.

Challenges to jurors may be exercised at any time before the jury is sworn Denham v. State, 421 So.2d 1082 (Fla. 4th DCA 1982), and it matters not whether this right is exercised by backstriking. We are fully aware that trial judges dislike this practice and we sympathize with them. However, the law is clear.

As to the search and seizure of contraband in the apartment without a warrant, the police were given permission to enter by the landlord. However, the two defendant tenants had executed a series of written agreements which, when taken together, were tantamount to a year’s lease still in force and effect.

The State argues that under the terms of the agreement the landlord had the right to enter. We agree, but that right was for reasonable access for inspection purposes and in order to spray for infestations. Inviting the police to enter and search the apartment is another matter altogether.

Nor are we impressed with the State’s insistance that the defendants had been orally told to deliver up the premises. First of all, we question the landlord’s right to evict them and second, no written notice was given as required under the Landlord Tenant Law. The State’s final argument that the defendants were three days late on their monthly rent also falls short of the kind of occurrence that would permit the landlord to invite the police to search.

In short, a warrant should have been obtained and we reverse the trial judge’s denial of the motion to suppress the fruits of that search. See Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) and Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

We either find no merit in or see no need to address the remaining points on appeal.

REVERSED AND REMINDED.

DOWNEY and DELL, JJ., concur.

      . We do not share the public defender’s confidence that the “rental agreement” was a valid one year lease. However, that agreement taken in pari materia with the application form and the deposit receipt, did have that effect.


author: HURLEY, Judge.

text:
    Dick A. LEE, Appellant, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 82-2113.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Oct. 27, 1983.
    Robert D. Klausner of Pelzner, Schwe-dock, Finkelstein & Klausner, P.A., Hollywood, for appellant.

      Paul A. Rowell, General Counsel, and Judson M. Chapman, Asst. General Counsel, Tallahassee, for appellee.
    Jim Smith, Atty. Gen., and Arthur C. Wallberg, Asst. Atty. Gen., Tallahassee, for Career Service Commission.
   HURLEY, Judge.

The question on appeal is whether the Career Service Commission is empowered to limit an award of back pay to a reinstated Florida highway patrolman. We answer in the affirmative and uphold the ruling of the Career Service Commission.

Dick A. Lee, a Florida highway patrolman, was dismissed from his position on February 15, 1982. He appealed to the Career Service Commission and was reinstated with full back pay on September 9, 1982. The Commission’s order, however, stated that the award of back pay was to be offset by “any gross income which [Trooper Lee] had earned from personal services and any unemployment compensation which he had received during the period from February 16, 1982 until actual reinstatement.” On appeal, Trooper Lee contends that his status as a police officer bars any offset against his award of back pay.

Historically, the treatment of state officers and state employees has differed in matters concerning compensation. A reinstated officer was not subject to an offset of wages earned during a period of dismissal. State ex rel. Dresskell v. City of Miami, 153 Fla. 90, 13 So.2d 707 (1943). On the other hand, an employee was subject to such an offset. Rubin v. Shapiro, 198 So.2d 854 (Fla. 3d DCA 1967). Thus, the disposi-tive issue is whether the common law distinction between police officers and employees, as it relates to awards of back pay, has survived the advent of the Career Service System.

As we view it, the enactment of Chapter 110 with its creation of the Career Service System constitutes a new, comprehensive method for dealing with state employment. Trooper Lee concedes, as he must, that Florida highway patrolmen are covered by the Florida Career Service System. See Humphries v. Department of Highway Safety and Motor Vehicles, 400 So.2d 1311 (Fla. 1st DCA 1981); see also, Ridaught v. Division of Florida Highway Patrol, 314 So.2d 140 (Fla.1975). Section 110.205(1), Florida Statutes (1981), expressly states that “[t]he Career Service ... shall include all positions not specifically exempted .... ” Florida highway patrolmen are not specifically exempted. Thus, Trooper Lee, as a member of the Highway Patrol, is entitled to the full protection of the Act. Similarly, he is subject to its restrictions-— one of which allows the Commission to reinstate an employee “with or without back pay.” See Section 110.309(3), Florida Statutes (1981). Neither the language of the Act nor logic suggests any reason to create a special exception for members of the Highway Patrol and we decline to do so.

The Career Service System offers a broad range of procedural protections. Indeed, its benefits are exemplified by the case at bar. The express basis for reinstating Trooper Lee was that the Highway Patrol failed to dismiss him in accordance with procedural requirements of the Career Service System. The Commission stated that “the Agency must comply with applicable rules of procedure when it dismisses a permanent employee of the State Career Service System, and if it does not, the employee is entitled to reinstatement. Department of Law Enforcement v. Allen, 400 So.2d 777 (Fla. 1st DCA 1981).” The Commission further enumerated four specific ways in which Trooper Lee’s dismissal contravened procedures required by the Career Service System. It then concluded that the dismissal was without just cause.

As indicated, Section 110.309(3), Florida Statutes (1981), states that “[u]pon a finding that just cause did not exist for the suspension or dismissal, the commission may order the reinstatement of the employee, with or without back pay.” This provision was expressly upheld in Corte v. Department of Administration, 386 So.2d 875 (Fla. 1st DCA 1980) where the court went on to note that “it rests within the sound discretion of the Commission, when reinstating an employee, to do so ‘with or without back pay,’ and this court shall not reverse or substitute its judgment for that of the Commission unless the court finds that the agency has abused its discretion.” Id. at 876. Inasmuch as Trooper Lee has failed to demonstrate an abuse of discretion, the order on appeal is

AFFIRMED.

GLICKSTEIN and DELL, JJ., concur.


author: DOWNEY, Judge.

text:
    Hiram Cazes PARNELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-2257.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Oct. 26, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant seeks reversal of the judgment of guilty of possession of a firearm by a convicted felon and sentence of fifteen years in prison.

Appellant and a person named Furlong were observed by police looking in the rear window of a residence in Fort Lauderdale. The police stopped appellant and Furlong and inquired about their presence in the neighborhood. It was ultimately determined that the two had driven up to Fort Lauderdale in Furlong’s Lincoln, which the police found parked in the carport of a nearby vacant residence. A rifle was found on the floor behind the front seat of the Lincoln.

Appellant was charged with, and convicted by a jury of, possession of a firearm (the rifle) by a convicted felon.

Since the evidence failed to show actual possession by the appellant, the State’s case rises or falls on the probative value of the evidence adduced regarding constructive possession. The State needed to prove beyond a reasonable doubt that appellant (1) knew the rifle was in the car, and (2) had the ability to maintain dominion and control over the piece. Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976).

Viewed in a light most supportive of the verdict and judgment the evidence shows that appellant originally lied about how he came to Fort Lauderdale, but eventually he admitted he had been a passenger in the Lincoln when it arrived at the carport location. One of the officers testified that although it was dark, use of a flashlight enabled him to see the rifle on the floor of the Lincoln behind the front seat. He said the rifle was “in plain view.” His conclusion apparently was based upon the fact that he saw it, and therefore anyone would see it. The evidence further showed that Furlong had taken the rifle, handguns, and flex cuffs from his cousin, a policeman in Miami. Furthermore, Furlong admitted to the police that he owned the car and that the rifle was in his possession.

Under these circumstances even if the State had been able to prove ability to maintain dominion and control, which we doubt, the evidence adduced was insufficient to prove beyond a reasonable doubt that appellant knew the rifle was present in the car. Compare Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975).

Accordingly, we reverse the judgment and sentence appealed from.

LETTS and DELL, JJ., concur.


text:
    William J. GOTTSCHAMER and Nancy Gottschamer, Appellants, v. AUGUST, THOMPSON, SHERR, CLARK & SHAFER, P.C., a Michigan corporation, Appellee.
    No. 82-2447.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1983.
    Rehearing Denied Oct. 10, 1983.

      Michael S. Wilson, Orlando, for appellants.
    Ted B. Edwards of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   SCHOONOVER, Judge.

This is an appeal from an order determining the amount of set-off the guarantors of a promissory note and mortgage are entitled to as a result of a foreclosure sale. The trial court allowed a set-off in the amount of $186,500, the value of the property determined at a hearing, and not $195,-000, the amount bid at the foreclosure sale. We reverse.

The appellee was the owner and holder of a note and mortgage in the amount of $165,000 executed by Gottschamer & Gott-schamer, Inc., a Florida corporation, and guaranteed by the appellants, William J. Gottschamer and Nancy Gottschamer. After the corporation defaulted, the appellee, August, Thompson, Sherr, Clark & Shafer, P.C., a Michigan corporation, filed a foreclosure action against it and added a count in their complaint seeking damages against the appellants on the guaranty. The foreclosure action was stayed because of a suggestion of bankruptcy filed by the corporation, but the trial court entered a final summary judgment against the appellants, in the total amount of $197,671.56. After the corporation’s bankruptcy action had been concluded, a final summary judgment on the foreclosure action was entered. A foreclosure sale was held, and the appellee bid the amount of $195,000 and subsequently received a certificate of title in its name.

At a subsequent hearing to determine the value of the property and the amount of the set-off to which the appellants are entitled, the court determined that the market value of the property was $186,500. An order was then entered allowing the appellee to execute on its judgment to the extent of the difference between that amount and the amount of the judgment plus accrued interest thereon.

We disagree with the appellants’ contention that the appellee’s election to join its claim against the appellants in the foreclosure action precluded the appellee from obtaining a judgment against the appellants until the amount of the deficiency had been determined in the foreclosure action. A suit on a promissory note or the foreclosure of a mortgage securing that note are not inconsistent remedies available to a mortgagee, and pursuit of one without satisfaction is not a bar to the other, Klondike, Inc. v. Blair, 211 So.2d 41 (Fla. 4th DCA 1968). Similarly, a suit on a guaranty and a foreclosure action are not inconsistent remedies, and therefore pursuit of either of those remedies without satisfaction is not a bar to the pursuit of the other. See Klondike v. Blair; Spencer v. American Advisory Corp., 338 So.2d 62 (Fla. 3d DCA 1976).

We, however, agree with the appellants’ argument that since the price bid at the foreclosure sale was higher than the trial court’s determination of the market value of the property, they were entitled to a set-off in the amount of the price bid at the sale. When the amount bid at the foreclosure sale is higher than the fair market value of the property subject to the mortgage, the amount bid must be applied to the debt as fixed by the final judgment. We agree with the First District Court of Appeal’s holding in the case of Provident National Bank v. Thunderbird, Assoc., 364 So.2d 790 (Fla. 1st DCA 1978), wherein the court stated:

The amount for which a mortgaged property sells at foreclosure sale, whether to the mortgagee or to a stranger, is (less such costs and expenditures as provided in the final judgment of foreclosure) applied to the debt as fixed by the final judgment of foreclosure. Although the amount for which mortgaged property sells at a properly conducted foreclosure sale is not conclusive as to the value of the property nor the right to a deficiency judgment, the deficiency may not exceed the difference between the amount for which the property so sold and the amount of the indebtedness secured by the final judgment of foreclosure.

Id. at 795.

Accordingly, since the price bid at the foreclosure sale was higher than the fair market value of the property, the appellants should have received a set-off in the amount of $195,000.

REVERSED and REMANDED for proceedings consistent with this opinion.

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


text:
    James William MEAD, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2203.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 7, 1983.
    Bennett H. Brummer, Public Defender and Kalter & Kutner, Miami and Robert Kalter, Sp. Appointed Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

The defendant James William Mead appeals his conviction for first degree murder entered below. His sole point on appeal is that the state failed to adduce sufficient evidence at trial to establish the essential element of premeditation herein. We reject this contention upon a holding that the defendant’s statement to the police, which was admitted in evidence below, adequately established the above-stated element of premeditation in this case. Sireci v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982).

Affirmed.


author: DELL, Judge.

text:
    William SCHRANK, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Nos. 81-1681, 81-2221.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    On Rehearing Oct. 14, 1983.

      Stuart B. Blake and Barry S. Franklin of Law Offices of Paul L. Backman, Hollywood, for appellant.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., and Thomas T. Grimmett of Gunther, Grimmett & Whitaker, Fort Lauderdale, for appellee.
   DELL, Judge.

The prevailing plaintiff in an action to compel arbitration challenges two orders of the trial court which denied his motion to tax costs and attorneys fees against appel-lee, his insurer.

Following an automobile accident involving personal injuries, appellant settled with the tortfeasor without the written consent of appellee, then sought arbitration of his underinsured motorist claim. Appellee declined to arbitrate and appellant filed the instant suit. The trial court found in favor of appellant, and entered a final judgment which compelled arbitration, awarded costs and attorneys fees pursuant to Section 627.-428, Florida Statutes (1981), and reserved jurisdiction to set the amount of such fees. Appellee made no motion for rehearing or to alter or amend the judgment. At the subsequent hearing to determine the amount of appellant’s attorneys fees, appellant’s counsel presented evidence relevant to the proper amount of such fees. At the close of appellant’s evidence, and with no prior notice to appellant, appellee’s counsel made a substantive argument, disputing appellant’s entitlement to fees under Section 627.428. After hearing appellee’s argument the court orally denied appellant’s motion for attorneys fees. Appellant moved for rehearing of this oral ruling. The court thereafter took various confusing actions which alternatively awarded and denied attorneys fees to appellant.

On August 4, 1981, the judge entered an order denying attorneys fees and modifying the final judgment to that effect. In this order the court construed Section 627.428 and concluded that appellant was not entitled to recover attorneys fees. Subsequently, the trial judge reversed himself. He entered an order granting appellant’s motion for rehearing, and ruled that appellant was entitled to attorneys fees under Section 627.428. One week later, September 2, 1981, the judge reversed himself again and entered an order which denied the same motion for rehearing and quashed “any order to the contrary” (i.e., the order of August 26). The September 2 order states in part: “Denial of [appellant’s] Motion to Tax Attorneys Pees dated June 19, 1981, and heard June 29, 1981, is hereby ratified on grounds then stated.” The order cited Rule 1.540(b), Florida Rules of Civil Procedure, as authority to correct the final judgment by deleting paragraph three thereof, the attorneys fee award. Appellant filed his notice of appeal on September 16, 1981.

Appellee challenges this court’s jurisdiction and contends that appellant’s motion for rehearing, directed at the trial judge’s oral ruling, did not operate to toll the time to appeal from the court’s written order implementing that ruling, rendered on August 4. Accordingly, appellee also contends that the time to file appellant’s notice of appeal expired on September 3, 1981.

We need not determine the effect of appellant’s motion for rehearing because before the time to appeal the August 4 order expired, the trial judge entered an order which awarded appellant attorneys fees. Accordingly, as of August 26, appellant had prevailed on all points. He had nothing to appeal. Not until September 2, when the trial judge reversed himself for the third time, did appellant’s need to file a notice of appeal resurrect itself. Appellant’s notice of appeal refers to this order. We have jurisdiction.

Rule 1.540(b) permits the trial court to relieve a party from final judgment on several grounds, including mistake or inadvertence, within one year of entry of final judgment. The rule envisions an inadvertent and honest mistake made in the ordinary course of litigation, Viking General Corp. v. Diversified Mortgage Investors, 387 So.2d 983 (Fla. 2d DCA 1980), petition for review denied, 394 So.2d 1154 (Fla.1981), including the inadvertent and erroneous signing of an order submitted by counsel, Marx v. Redd, 368 So.2d 101 (Fla. 4th DCA 1979). A mistaken view of the law, however, constitutes judicial error rather than simple mistake, Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 75 (Fla.1979), and must be presented by motion to rehear under Rule 1.530. Elmore v. Palmer First National Bank and Trust Co., 221 So.2d 164 (Fla. 2d DCA 1969).

Appellee vigorously argues that the trial judge had the authority to alter this judgment under Rule 1.540(b) because the judge inadvertently signed the final judgment, prepared by appellant’s counsel, without realizing that it included a fee award. We find no support for this argument in the record. Although the September 2 order cites Rule 1.540(b), it also explicitly refers to the argument presented at the fee hearing as grounds for entry of the order. We find no indication that appellee presented an argument on mistake to the court in this hearing, or at any other time. Instead, appellee argued the substantive merits of the award during the hearing. The transcript of this hearing demonstrates that the trial judge based his ruling on, and only on, appellee’s substantive argument. Such a change in the trial judge’s view of the law did not provide grounds for relief under Rule 1.540(b). Accordingly, the trial judge had no cognizable grounds to alter this judgment. We decline to discuss other points presented, as our holding disposes of them. Since appellee did not dispute the amount of fees established at the hearing, and in fact agreed the amount was reasonable, we reverse and remand with directions to reinstate the award of attorney fees in favor of appellant in the amount of $6,581.50.

REVERSED and REMANDED WITH DIRECTIONS.

GEIGER, DWIGHT L., Associate Judge, concurs.

HURLEY, J., concurs in result only.

ON MOTION FOR REHEARING

We grant appellant’s Motion for Rehearing and Clarification to the extent that we grant appellant’s motion for appellate attorney’s fee and remand this cause to the trial court with directions to determine a reasonable amount for such services.


text:
    John B. SPARLING and George H. Sparling, III, Appellants/Cross Appellees, v. BOCA RATON LAND DEVELOPMENT, INC., a Florida corporation, Appellee/Cross Appellant.
    Nos. 82-845, 82-1171.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Rehearing Denied Oct. 27, 1983.
    Maurice M. Garcia and Bradford J. Beilly of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellants/cross appellees.
    Joel D. Kenwood, Boca Raton, and Edna L. Caruso, West Palm Beach, for ap-pellee/cross appellant.
   DELL, Judge.

Appellants challenge a verdict and final judgment quieting title to real property in the appellee, Boca Raton Land Development, Inc.

In 1973, George B. Liddy and his wife conveyed the subject property to L-U Ventures. In 1974, L-U Ventures, a partnership, conveyed the property to appellee. Initially, George B. Liddy and Lawrence Urbanek each owned fifty percent of the stock of appellee. However, prior to the conveyance which resulted in this quiet title action, Liddy acquired two-thirds of appel-lee’s stock. At all times material to this action Liddy served as president of appellee and Urbanek held no office other than secretary-treasurer. In 1976, Urbanek, without legal authority, signed a deed as president of appellee, affixed the corporate seal and conveyed the property to himself. A number of intermediary conveyances followed finally ending with a conveyance of the property in 1978 by Urbanek to appellants.

In 1980, appellee filed its complaint to quiet title under Chapter 65, Florida Statutes. Appellee named appellants as defendants, but failed to include Urbanek as a party defendant. The complaint alleged that appellants derived their title from the deed which Urbanek executed in 1976; that this deed was void, illegal, defective and fraudulent; that appellants either knew or should have known the nature of their source of title; and that appellants were mere nominees of Urbanek. On the first day of trial appellants moved to dismiss for failure to join Urbanek as an indispensable party. The trial court denied appellant’s motion. The jury found that Urbanek intended to defraud the corporation when he conveyed the property and that appellants should have been aware of the fact that Urbanek conveyed the property wrongfully and without appellee’s authority.

We have considered each of the issues raised by appellant and conclude that the trial court properly denied their motion for a directed verdict. However, appellants’ argument that the court erred in denying their motion to dismiss because of appellee’s failure to join Urbanek as an indispensable party requires discussion.

Appellants rely upon Florida Land Rock Phosphate Co. v. Anderson, 50 Fla. 501, 39 So. 392 (1905) and Gibson v. Tuttle, 53 Fla. 979, 43 So. 310 (1907). The complaint in Gibson asks for cancellation of three successive deeds, each of which was allegedly made with intent to cloud the plaintiffs’ title. The grantor of the third deed was not named as a party defendant. The Supreme Court reversed for failure to include all proper parties:

The general rule in equity is that all persons materially and directly interested, either legally or beneficially, in the subject matter of a suit, must be made parties, so that a complete decree may be made binding upon all parties.

Id. 43 So. at 311.

In Florida Land Rock Phosphate Co., certain defendants had been voluntarily dismissed and were not before the trial court when it entered final judgment quieting title in the plaintiff. The Court independently determined that the dismissed defendants were indispensable parties and sua sponte reversed and remanded for a new trial without expressing an opinion upon the merits of the appeal. The Court reasoned that the dismissed defendants had such an interest in the controversy that a final decree between the parties remaining before the court could not be made without affecting the dismissed parties’ interests.

Appellee responds to appellants’ argument by citing Section 65.041, Florida Statutes (1981) and contends that this statute permits a quiet title action without mandatory joinder of all persons who may have an interest in the property or who may be affected by the judgment.

Section 65.041, Florida Statutes provides: No person not a party to the action is bound by any judgment rendered adverse to his interest, but any judgment favorable to the person inures to his benefit to the extent of his legal or equitable title.

With some reservations we agree with ap-pellee’s argument that the reasons which formed the basis of the Court’s holding in Florida Land Rock Phosphate Co., supra, and Gibson, supra, have been eliminated by Section 65.041, Florida Statutes. The statute removes the binding nature of an adverse quiet title judgment on a non-party. We find support for this conclusion in Markley v. Madill, 259 So.2d 723 (Fla. 2d DCA 1972) and in Dunn v. Stack, 394 So.2d 1076 (Fla. 1st DCA 1981).

In Markley, the Second District rejected the argument that a quiet title action based on a tax deed was defective because of the failure to join various other parties who had or who might have had an interest in the land. The court stated:

It may be that other persons may still have an interest in the property which has not been quieted as against their claim, but this did not preclude the trial court from proceeding to final judgment against the appellant’s interest, if any, in the property.

259 So.2d at 724. The court in Dunn, supra, discussed the effect of Section 65.041, Florida Statutes, and concluded:

The purpose and result of the prior quiet title action was to clear from the title all of the claims by the named defendants which had come to cloud the title over the years. J.E. Stack, Jr., et al. are alleged to be successors in title of Ates. E.L. Dunn and John C. Nix, Jr., were not parties to the action.
In a quiet title action, a person who is not a party to the action is. not bound by any judgment rendered adverse to his interest. Section 65.041, Florida Statutes (1971). Therefore, the trial court did have jurisdiction to consider the merits of the claim by Dunn and Nix and should not have ordered the dismissal.

394 So.2d at 1077.

In this case appellants could have filed a claim against Urbanek and brought him into the lawsuit themselves. However, a resolution of appellants’ claim, if any, against Urbanek was not necessary to quiet the title between appellant and appellee. Although better practice would compel the joinder of all parties claiming or who might claim an interest in land subject to a quiet title action, we hold that the trial court did not err when it denied appellants’ motion to dismiss because appellee failed to join Ur-banek as a defendant. Accordingly, we affirm the judgment quieting title in favor of the appellee.

AFFIRMED.

DOWNEY and LETTS, JJ., concur.