author: ERVIN, Judge. MILLS, Judge, ERVIN, Chief Judge. MILLS, Judge,

text:
    Roberto CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. AJ-349.
    District Court of Appeal of Florida, First District.
    April 14, 1983.
    Rehearing and Rehearing En Banc Denied Sept. 19, 1983.

      Neal L. Betancourt, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   ERVIN, Judge.

Cruz appeals his convictions for the offenses of conspiracy to commit robbery with a firearm and of robbery with a firearm. Because we find that the lower court unduly restricted appellant’s right of cross-examination of the state’s key witness, we reverse and remand this cause for a new trial.

Due to our disposition of this case, we will not address at length appellant’s other points, i.e., that the lower court abused its discretion in refusing to reopen the evidence to allow the defendant to take the stand in his own behalf; that the lower court erred in denying defendant’s motion for new trial on the ground that the court permitted a prosecution witness to testify that he had received certain money from the defendant as payment for his part in the robbery; that the lower court erred in denying the motions for judgment of acquittal on the ground that there was insufficient evidence to go to the jury on the question of whether defendant had participated either in the planning of the robbery or in the actual robbery itself; that the court erred in permitting a prosecution witness to testify on the ground that the state violated the rule of discovery by failing to notify defendant until just before the trial that the witness would appear on behalf of the state; that the court erred in giving to the jury an instruction on the law of principals, because the state had failed to request such ah instruction at the time of the charging conference, and that the court erred in denying a motion for mistrial due to leading questions asked by the state of its own witnesses as to the date of the offense after a statement of particulars had been filed by the defense.

None of the above alleged errors constitutes reversible error. It also appears from our examination of the record that there was sufficient evidence to go before the jury. In our view many of the rulings alleged as errors involve a proper exercise of discretion which we find was not abused. Moreover, since this case must be retried for the reasons stated infra, certain of the assigned errors, particularly those relating to inadequate notice to the defense, will probably not recur on retrial.

The state’s evidence against the defendants Cruz and Gilley, whose case was consolidated with that of Cruz for trial, consisted primarily of the testimony of Michael Smith, who was also charged with the same offenses for which Cruz and Gilley were then on trial. Smith, who on July 27, 1981 was an employee of McDonald’s Fast-Food Restaurant located in Jacksonville, Florida, testified that early that same evening he, Cruz, Gilley, and one Roundtree had discussed a plan to rob McDonald’s. The plan, which was successfully carried out, required Smith to leave the back door to the establishment unlatched, Gilley and Roundtree to enter and commit the robbery, and Cruz to drive the “getaway” car.

None of the robbers was identified as each wore stocking masks. There was additional circumstantial evidence from another employee, who had known Cruz when he had been employed at McDonald’s, as having seen Smith and Cruz together some time before the robbery in an automobile, a white Vega, which was similar to a car she had seen parked at McDonald’s lot the evening of the robbery. Finally, a detective produced two wigs and some tennis shoes that he had removed from the home of co-defendant Roundtree. According to the victims, these items appeared to resemble those worn by the two robbers during the offense. Both Gilley and Cruz presented alibi testimony placing them at other places at the time the robbery was committed.

Following the robbery, Smith gave a statement admitting his complicity in the scheme. Later, Smith entered into extensive plea negotiations with the state, which were unsuccessful in that eventually Smith went to trial, but, after verdicts of guilt were returned against him, he agreed shortly before the trial of Cruz and Gilley to give state’s evidence. On the same day that Smith’s testimony was submitted to the jury, the state filed a motion in limine, seeking to restrict the defense from cross-examining Smith concerning his “alleged drug use and-mental problems ... on dates other than the date of the crime, Smith’s arrest or Smith’s deposition or courtroom testimony,” as well as “any offers or negotiations made to [him] prior to or during his trial.” In seeking exclusion of the latter material, the state’s motion cited Section 90.410, Florida Statutes (1979).

I. The Motion in Limine as it Relates to the Request to Restrict Cross-Examination of Smith Concerning His Drug Use.

In addressing this part of the state’s motion, the court ruled it would grant it, with the exception of any questions relating to Smith’s competency, loss of memory and “things flowing from the mental condition”, but denied the defense the right to cross-examine Smith as to any involvement he may have had with drugs either before or during the offense. Defense counsel was allowed to and did ask the witness if he was nervous, if he considered that he was emotionally unstable and whether he felt that he had mental problems, to all of which Smith responded affirmatively.

It is well established that great latitude is allowed the defense in the cross-examination of a witness to determine his interest, his opportunities for observation, his disposition to speak truthfully, and his ability to speak accurately. Killingsworth v. State, 90 Fla. 200, 105 So. 834 (1925). Indeed, the Florida Evidence Code codifies existing case law by permitting a party to attack the credibility of a witness by “[sjhowing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which he testified.” § 90.608(l)(d), Fla. Stat. (1981). Florida jurisprudence has long sanctioned the admissibility of evidence disclosing that the witness took drugs either at the time he was testifying, or at the time of the occurrence of facts about which he has testified, for the purpose of impeaching his credibility. Eldridge v. State, 27 Fla. 162, 9 So. 448 (1891); Nelson v. State, 99 Fla. 1032, 128 So. 1 (1930). Our court has gone further, by permitting evidence of the witness’s drug-taking at times other than during the occurrence of the offense. Morrell v. State, 335 So.2d 836 (Fla. 1st DCA 1976) (prosecuting witness’s lengthy addiction to narcotics relevant for testing her credibility). In a somewhat analogous situation, we recently stated that evidence relating to a defendant’s consumption of alcohol or narcotics at times other than during or immediately before the commission of an offense might be material in determining his mental capacity to form the specific intent necessary to commit the crime. Rivers v. State, 425 So.2d 101 (Fla. 1st DCA 1982).

What was at issue below was not the witness’s competency to testify, but whether, as a result of his involvement with drugs, his ability to remember accurately the facts which were the subject of his testimony was affected. We conclude that the lower court’s limitation on the defense’s cross-examination of a key government witness was an abuse of discretion.

II. The Order Granting the Motion In Limine as it Related to Restricting Inquiries of Any Offers or Statements of Plea Negotiations Made to Witness Smith Prior to or During His Trial.

The court granted the motion, permitting only testimony relating to any offers or negotiations that occurred following witness Smith’s trial, at which he was found guilty of “simple” robbery and conspiracy to commit robbery. The court was of the opinion that any plea negotiations which occurred before Smith’s decision to go to trial had been effectively revoked, and therefore such evidence was immaterial. The court also refused to allow the defense to make a proffer of its proposed questions, but it did state for the record outside the jury’s presence that the proffer which the defense wished to make related to (1) an offer made before trial for Smith to receive a ten-year maximum sentence, and (2) certain discussions for Smith’s possible eligibility for probation were he to plead guilty and testify against his co-defendants.

The defense was permitted to ask Smith whether, by changing his story and implicating himself and other persons, he expected to receive any leniency in exchange for such testimony. He replied that he did. The leniency he referred to was a lighter sentence. No details of the plea negotiations, however, were permitted.

In restricting the defense from inquiring into matters which were the subject of plea negotiations, the lower court may have been influenced by the state's reliance upon section 90.410, excluding statements relating to plea bargaining into evidence. From a superficial reading of the statute, one might conclude that evidence of any offers made in connection with plea negotiations is inadmissible at any proceeding. If this were the legislature’s purpose in enacting section 90.410, it would constitute a serious infringement upon a defendant’s sixth amendment right to examine his accusers. We are not convinced, however, that the statute was meant to be read so expansively. We consider, rather, that section 90.410 was intended to preclude evidence of thwarted plea negotiations only if such evidence is introduced at a later proceeding against the person who withdrew the plea or refused to accept the offer, provided he is a party to the proceeding. Moreover, we are persuaded that section 90.410 was never intended to bar evidence of plea negotiations for the purpose of impeaching a witness who appears at trial to offer testimony against an accused. Rather, the admissibility of such evidence is governed by the provisions of section 90.608(l)(b) of the Florida Evidence Code, allowing a witness’s credibility to be impeached upon a showing that he is biased.

Our conclusion is supported by the comments of the Law Revision Council Note to the 1976 statute, which explain that exclusion of such evidence “has as its purpose the promotion of disposition of criminal cases by compromise.” Law Revision Council Note-1976, 6B Fla.Stat.Ann., § 90.410 at 440 (1979). Obviously, such purpose is not frustrated by impeaching the testimony of a person, other than an accused, with inquiries directed to the witness’s possible interest in giving testimony favoring the state in exchange for a promise of leniency.

The Law Revision Council’s reference to two decisions in its note—Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) and Green v. State, 40 Fla. 474, 24 So. 537 (1898) — provides further support for our interpretation. Both cases involved defendants who had withdrawn pleas of guilty and then gone on to trial on the same charges to which they had formerly pled. Both cases disallowed evidence of the withdrawn pleas to be admitted against them as evidence of their guilt.

The 1978 amendment to section 90.410 and the Council’s accompanying commentary finally foreclose any rational contention that the statute was designed to bar at any trial all evidence of statements made in connection with pleas or offers. Before the 1978 amendment, the statute proscribed their admissibility, “except when such statements are offered for impeachment or in a prosecution under chapter 837.” The 1978 amendment deleted the words “for impeachment.” Consequently, such evidence is now admissible in a later prosecution only for perjury or false statement. The Council’s commentary to the amendment states that it “conforms Section 90.-410 to Fed.Rule Evid. 410 and Fla.R.Crim.P. 3.172(h).” 6B Fla.Stat.Ann. at 441. Significantly, Rule 3.172(h) excludes evidence of plea negotiations “against the person who made the plea or offer.” (emphasis supplied) Thus, if section 90.410 is to be interpreted consistently with the purpose stated in the Council’s notes and the provisions of Rule 3.172(h), we consider it necessary to construe the amended statute in pari materia with both the Florida and federal rules.

The Council’s reference to Federal Evidence Rule 410 also convinces us that section 90.410 — despite its different wording— was intended to be an adaptation of Rule 410. In language similar to that of Rule 3.172(h), Rule 410 precludes the admission of such evidence “in any civil or criminal proceeding — against the person who made the plea or was a participant in the plea discussions .... ” (emphasis supplied) The note adjoining Rule 410 explains it was the committee’s purpose to limit the ban only against defendants:

Limiting the exclusionary rule to use against the accused is consistent with the purpose of the rule, since the possibility of use for or against other persons will not impair the effectiveness of withdrawing pleas or the freedom of discussion which the rule is designed to foster. See AMA Standards Relating to Pleas of Guilty, § 2.2 (1968).

Advisory Committee Notes to Rule 410, Federal Rules of Evidence, 28 U.S.C.A. at 168 (1975).

In their comments upon the effect of the 1975 amendment to Rule 410, which deleted the provision allowing the introduction of plea-related statements for general impeachment purposes against the person who made them, Wright and Graham regard the amended rule as continuing to permit the use of such statements to impeach the defendant when he testifies in a case in which he is not a party, because, under such circumstances, the statements are “beyond the scope of Rule 410 .... ” 23 C. Wright & K. Graham, Federal Practice and Procedure, § 5349, p. 416-17 (1980) [hereinafter: 23 C. Wright & K. Graham]. Accord United States v. Mathis, 550 F.2d 180, 182 (4th Cir.1976) (use of such statements in connection with a plea of guilty admissible to impeach a witness). Wright and Graham point out that the invocation of the rule by the government to bar a defendant on trial from using plea negotiations for the purpose of impeaching a prosecution witness “might run afoul of the Confrontation Clause.” 23 C. Wright & K. Graham, supra, at 417.

We therefore conclude, after considering the stated purpose for prohibiting the introduction into evidence of statements made during plea negotiations, and the various comments, that the legislature in enacting section 90.410 did not intend to exclude such statements from being used to impeach persons other than the defendant on trial.

In the instant case, the lower court decided that because the state’s offer of leniency was not accepted by Smith due to his resolution to go to trial, any plea negotiations which transpired before Smith’s trial on the charge of robbery were immaterial. In doing so, the court appears to have injected principles of contract law into a factual setting that is instead controlled by the rule of relevancy. The court placed undue emphasis on the witness’s failure to accept the offer, rather than on the effect that the offer itself and other discussions may have had in causing Smith ultimately to change his decision not to testify. As the Fifth Circuit Court of Appeals recently observed:

[A] defendant’s right to cross-examine a witness about any deals that may have been made or any understandings that may have been reached between the government and one of its witnesses does not hinge on whether in fact any such deals or understandings were effected .... ‘What tells, of course, is not the actual existence of a deal but the witness’ belief or disbelief that a Seal exists.’

United States v. Mayer, 556 F.2d 245, 249 (5th Cir.1977) (quoting from United States v. Onori, 535 F.2d 938, 945 (5th Cir.1976)) (emphasis in original). See also Lee v. State, 324 So.2d 694 (Fla. 1st DCA 1976), and Engram v. State, 405 So.2d 428 (Fla. 1st DCA 1981). Indeed, the defense’s right to question a witness as to what representations were made to him is not dependent on whether they were approved by the court; the inquiries are germane to developing the witness’s interest or bias in testifying. United States v. Benavides, 549 F.2d 392, 394 (5th Cir.1977).

It would be problematic for anyone to say with certainty whether the state’s conviction of the appellant could have been effected without the key testimony of witness Smith. The other evidence admitted against Cruz and his accomplice Gilley was highly circumstantial. Smith was in fact the only witness who gave testimony against the appellant relating to the offense of conspiracy to commit robbery with a firearm. Given the crucial nature of Smith’s testimony, the defense should have been permitted to make a more thorough examination of two vital areas bearing on the witness’s credibility; his ability to relate accurately the facts pertaining to appellant’s involvement in the offenses, and his interest or bias, if any, in testifying against the appellant. A comprehensive exploration of the former necessarily included inquiries directed to whether and how long Smith had consumed narcotics, and of the latter, questions relevant to plea negotiations which occurred both before and after Smith’s trial.

We conclude that the lower court abused its discretion by unduly restricting the defendant’s right to cross-examine the primary prosecuting witness in these two important sectors. Accordingly, the judgments of convictions are REVERSED and the case is remanded for new trial.

SHIVERS, J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent.

Cruz was charged jointly with Gilley. They were tried together. They were represented by the same attorney. Both were found guilty as charged.

Both appealed the same day. The same trial transcript was used in each appeal. They were represented by the same attorney. He filed the same or similar briefs on behalf of both.

In Gilley v. State, 422 So.2d 358 (Fla. 1st DCA 1982), we affirmed the trial court in a two-to-one decision, the dissenting judge dissenting for the same or similar reasons that the majority now urges in reversing.

I would adhere to precedent, Gilley, supra, and affirm.

ON REHEARING

ERVIN, Chief Judge.

Appellee has filed with this court motions for rehearing and for rehearing en banc. The motion for rehearing en banc was considered by the full court, and, after deliberation, a majority determined not to consider it. The en banc motion argues that our disposition of this cause conflicts with this court’s prior decision in Gilley v. State, 422 So.2d 358 (Fla. 1st DCA 1982), in which another panel of this court affirmed per curiam Gilley’s conviction for the offense of robbery. Gilley and Cruz were co-defendants and were tried together, although their cases were separately appealed. It appears from the dissent in Gilley that an issue was raised — as here — relating to the impermissible limitation of the defense’s right to cross-examine witness Smith. It is not evident from the very brief opinion of the majority why it rejected this issue as non-reversible. The opinion merely stated that it found, from its examination of the record, “no* reversible error.” 422 So.2d at 358. Nevertheless, Gilley’s conviction may have been sustainable for several reasons not disclosed in the opinion. One of course is harmless error. As it appears from our discussion of the facts in Cruz, Gilley’s participation in the robbery was much more involved than that of Cruz, who drove only the getaway car. At any event, the majority’s opinion in Gilley, written as it was, has no preceden-tial effect on the outcome of our decision.

Because of the concern expressed in the state’s motion for rehearing en banc and the dissent relating to conflict in our decisions, we consider it necessary to address the principles of stare decisis and res judicata and what effect, if any, a per curiam affirmance (PCA) that fails to address an issue on appeal has on a later opinion involving different parties which explicitly decides the same or a similar issue raised in the earlier case. As we recently recognized in State of Florida, Commission on Ethics v. Sullivan, 430 So.2d 928, 932 (Fla. 1st DCA 1983), if the same issues and parties are involved in two or more cases, a PCA becomes the law of the case, is res judicata, but is not stare decisis. Accord Department of Legal Affairs v. District Court of Appeal, Fifth District, 434 So.2d 310, 313 (Fla., 1983) (“... such a decision is not a precedent for a principle of law and should not be relied upon for anything other than res judicata.”). Obviously, since there is no identity of parties in either the Cruz or Gilley cases, the doctrine of res judicata is inapplicable. Neither is the doctrine of stare decisis, because, as we observed in Sullivan, a PCA “establishes no precedential point of law.” 430 So.2d at 932. There is no presumption that an af-firmance without opinion is on the merits. Schooley v. Judd, 149 So.2d 587, 590 (Fla. 2d DCA 1963), reversed on other grounds, 158 So.2d 514 (Fla.1963). Moreover, even if an opinion is written, the decision may not be considered as precedent for a point not mentioned therein. 13 Fla.Jur.2d, Courts and Judges, s. 146, p. 270 (1979).

If there was any lingering doubt concerning the precedential effect of a per curiam affirmance without opinion on a later case involving different parties, such doubt was unquestionably laid to rest by the supreme court’s recent opinion in Department of Legal Affairs v. District Court of Appeal, Fifth District:

The rationale and basis for the decision without opinion is always subject to speculation. In Newmons v. Lake Worth Drainage District, 87 So.2d 49 (Fla.1956), the Court discussed several reasons for issuing per curiam decisions, some with written opinions and some without written opinions, and concluded: “In fine there is no limit to the grounds that may prompt a per curiam opinion.” Id. at 51. Such uncertainty in itself negates a basis for reliance on an unwritten decision for guidance or precedence. We therefore recede from the language in Melser [State Department of Public Welfare v. Melser, 69 So.2d 347 (Fla.1954)] on rehearing which implies that a per curiam decision without opinion can be cited as precedent.

434 So.2d at 312.

The motions for rehearing and rehearing en banc are denied.

SHIVERS, J., concurs.

MILLS, J., dissents with an opinion.

MILLS, Judge,

dissenting:

I dissent. I would grant the State’s motions for rehearing and rehearing en banc.

Although Cruz was charged jointly with Gilley; although they were tried together; although they were represented by the same attorney; although they both were found guilty as charged; although they both appealed the same day; although the same trial transcript was used in each appeal; although they were represented by the same attorney; although the attorney filed the same or similar briefs on behalf of both; and although in Gilley v. State, 422 So.2d 358 (Fla. 1st DCA 1982), we affirmed the trial court in a 2 to 1 decision, the majority now adopts the Gilley dissent. Will Gilley understand and appreciate this action? Has justice prevailed? I think not.

This case should be affirmed.

      . Section 90.410 provides:
      Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.

      . The committee note to Rule 3.172(h) states that it is a “[r]ewording of Rule 11(3)(6) [this in fact is and should be a reference to 11(e)(6) ] of the Federal Rules of Criminal Procedure.” Committee Note, 33 Fla.Stat.Ann., Fla.R. Crim.P. 3.172 at 74 (1983 Pocket Part). Rule 11(e)(6), as amended in 1979, bars evidence of statements made during plea negotiations under certain specific conditions only “against the defendant who made the plea or was a participant in the plea negotiations: .... ”


source: Caselaw Access Project

author: NIMMONS, Judge.

license: Public Domain

text:
    Melvin A. CHISHOLM, Appellant, v. McCORMICK, CONDUIT, BUCKLEY and CNA Insurance Group, Appellees.
    Nos. AK-235, AN-207.
    District Court of Appeal of Florida, First District.
    June 9, 1983.
    Rehearing Denied Sept. 29, 1983.
    Joseph H. Williams of Troutman, Parrish & Williams, Winter Park, for appellant.
    Wendell J. Kiser of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   NIMMONS, Judge.

In these consolidated appeals, Chisholm appeals two orders of the deputy commissioner pertaining to his July 18, 1980, on-the-job back injury.

The first order entered on February 10, 1982, denied Chisholm’s claim of entitlement to permanent total disability (PTD). We hold that there was competent substantial evidence presented at the January 14, 1982, hearing to support the deputy commissioner’s finding that Chisholm was not permanently and totally disabled under the applicable statute. We, therefore, affirm that order.

The second order from which Chisholm appeals is an order entered by the deputy on June 28, 1982, pertaining to Chisholm’s April, 1982, application for hearing on a claim for wage-loss benefits for the period of December 24, 1981, through March 18, 1982. The deputy ruled that he was without jurisdiction to consider such claim because the deputy’s above-referred order denying Chisholm’s previous claim for PTD was pending on appeal. The employer/carrier (E/C) contends that the deputy’s order should be affirmed because: (1) the claim for wage-loss benefits was not presented at the first hearing on January 14, 1982; and (2) the deputy was without jurisdiction in view of the pendency of Chisholm’s appeal from the previous order. We disagree.

With respect to E/C’s assertion that Chisholm was required to present his claim at the January 14, 1982, hearing, the brief answer to that is that there was no matured wage-loss claim at the time of that hearing. The record in this case is clear that Chisholm has received rehabilitative temporary total disability benefits through December 24, 1981. The earliest period for which wage-loss could be claimed would, therefore, be for the period beginning December 24,1981. Even if claimant had, at the time of the January 14 hearing on PTD, alternatively claimed entitlement for wage-loss benefits, such claim would not have been ripe for hearing on January 14 given the statutory timetable and notice provisions governing wage-loss claims. See §§ 440.-20(4), 440.185(10), Florida Statutes, and W.C.R.P. 8.

The remaining contention by E/C that the deputy was without jurisdiction to hear any wage-loss claim because of the penden-cy on appeal of the PTD order is equally without merit. As we have previously recognized, piecemeal handling of workers’ compensation proceedings is inherent in the statutory scheme governing such proceedings. Hunt v. International Minerals and Chemical Corp., 410 So.2d 640 (Fla. 1st DCA 1982). The comment following W.C.R.P. 16 is apropos:

[I]n some regards workers’ compensation cases are unique, and this uniqueness generates special needs for workers’ compensation appeals not present in appeals involving other litigation.
******
Workers’ compensation cases, of necessity, are taken up piecemeal. A workers’ compensation case requires this treatment because the various entitlements of the claimant (which generate potential issues to be heard by the Deputy Commissioner) mature at different times as the course of the claimant’s physical recovery progresses. A workers’ compensation case, unlike other personal injury litigation, can engender successive issues as to medical treatment, the entitlement to temporary disability benefits, the entitlement to permanent disability benefits, as well as ancillary issues of penalties, costs, attorney’s fees and some other rather exotic issues. These can result in successive hearings and successive orders which are all equally final, and all equally appeala-ble. This is not only necessitated by the nature of a workers’ compensation case but also is required by the Statute and the existing rules which allow claims and trials of only the matured issues. (See in this regard F.S. 440.25 and existing Workers’ Compensation Rule of Procedure 7.) This of course is different from other sorts of personal injury litigation in which the matter is tried at one time, and all issues are presented.

Neither statutory provisions nor the Florida Workers’ Compensation Rules precluded the deputy from hearing Chisholm’s wage-loss claim during the pendency of his appeal from the final order denying the PTD claim. This conclusion is not inconsistent with Fla.W.C.R.P. 20(b) “Proceedings Pending Review” as a close reading thereof will demonstrate.

We do not believe that our holding will present any substantial problem in the prosecution and handling of workers’ compensation cases. If the deputy had proceeded to hear the claimant’s wage-loss claim as scheduled on June 22,1982, and had ordered the E/C to pay wage-loss benefits, and if this Court subsequently reversed the deputy’s previous order denying PTD, the E/C would, of course, be entitled to credit on its subsequently determined PTD obligations for the amounts paid as wage-loss. On the other hand, to sustain the deputy’s ruling of lack of jurisdiction would force a potentially deserving claimant to wait for resolution of the question of his entitlement to significant compensation benefits for a substantial period of time pending resolution of the first appeal.

The deputy’s first order appealed from is affirmed as previously noted herein. The deputy’s second order is reversed and remanded for hearing on the wage-loss claim.

BOOTH and WIGGINTON, JJ., concur.

      . Section 440.15(l)(b), Florida Statutes (1979), provides in pertinent part:
      “[N]o compensation shall be payable under paragraph (a) if the employee is ... physically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation.”

      . “(b) Further Proceedings.
      (1) In the absence of a stay, during the pend-ency of a review of a non-final order, the deputy may proceed with all matters, including final hearing; provided that the deputy may not enter a final order disposing of the cause pending such appeal.
      (2) When the jurisdiction of the deputy has been divested by an appeal from a final order, the court by order may permit the deputy to proceed with specifically stated matters during the pendency of the appeal.
      (3) Pending appeal the deputy shall retain jurisdiction to enter orders on all matters of the claim which have not been appealed.”

      . Assuming without deciding — since no such issue has been raised herein — that with respect to the period between December 24, 1981, and January 14, 1982, the claimant will be bound in the wage-loss hearing by the deputy’s finding in the first order that “the claimant has voluntarily limited his employment,” such a finding would not by itself justify a complete denial of wage-loss benefits. Section 440.15(3)(b)2 provides in pertinent part:
      “In the event the employee voluntarily limits his or her income or fails to accept employment commensurate with his or her abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his or her income or accepted appropriate employment.”


author: PER CURIAM.

text:
    David CAMPBELL, Appellant, v. Dr. Larry ROSENBAUM, et al., Appellees.
    No. 82-2368.
    District Court of Appeal of Florida, Fourth District.
    June 15, 1983.
    Rehearing Denied Oct. 6, 1983.
    David Campbell, pro se appellant.
    David M. Wiegand of Law Offices of Howard E. Barwick, P.A., Miami, Shores, for appellee-Rosenbaum.
   PER CURIAM.

Affirmed upon authority of Panter v. Werbel-Roth Securities, Inc., 406 So.2d 1267 (Fla. 4th DCA 1981); Hauser v. Schiff, 341 So.2d 531 (Fla. 3d DCA 1977).

LETTS, DOWNEY and WALDEN, JJ., concur.


author: ANSTEAD, Judge.

text:
    James E. WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-754.
    District Court of Appeal of Florida, Fourth District.
    June 22, 1983.
    Rehearing Denied Oct. 5, 1983.
    Richard L. Jorandby, Public Defender, and Marcy Karr Allen, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus and Debra Mann, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

James E. Watson appeals from his conviction of robbery with a firearm and the sentence imposed. Watson contends that the trial court erred in admitting a tape recording of his confession at trial; in determining that the evidence was sufficient to sustain a finding that he possessed a firearm; and in retaining jurisdiction over a third of his 99-year sentence.

Watson was apprehended after fleeing into a waiting taxi following the robbery of a 7-11 store. The store clerk, who identified him immediately, stated that Watson had pointed a gun in his face. The arresting officer found a gun in the getaway car. Watson gave a taped statement admitting the robbery and the use of the gun; however, he denied that he could have shot anyone because the gun was inoperative and he had no ammunition.

Detective Pusin took the taped statement from Watson. After the recording was complete, Pusin punched out the tabs to prevent accidental erasures and labeled the cassette with the case number, the date and his initials; when Pusin went home, sometime after 2 a.m., he left the cassette on a secretary’s desk for transcription later that day. At trial, Pusin was uncertain whether he saw the cassette later that day or whether he saw it when he removed it from the evidence locker for use in another defendant’s trial; he acknowledged that the cassette had not been placed in the locker immediately after recording and that it had not been constantly in his possession, but he declared that the tape completely and accurately recorded his conversation with Watson. The tape was then admitted into evidence over a defense objection that the state had failed to establish the chain of custody.

Before a physical object may be admitted into evidence, the trial judge must determine that the object is in substantially the same condition as when it was procured. Continuous custody of the object is only one factor to be considered. Beck v. State, 405 So.2d 1365, 1367 (Fla. 4th DCA 1981); see also Bernard v. State, 275 So.2d 34, 35 (Fla. 3d DCA 1973) and Stevens v. State, 245 So.2d 92 (Fla. 1st DCA 1971). Although the whereabouts of the cassette involved herein were not fully explained, cf. Jones v. State, 253 So.2d 154, 156 (Fla. 2d DCA 1971) and Stunson v. State, 228 So.2d 294 (Fla. 3d DCA 1969), there was evidence that the cassette was preserved in the same physical condition. Watson now contends that a discrepancy between the time stated on the tape and the actual recording time demonstrates a possibility of tampering; Pusin attributed the admitted error to a misreading of his watch. Interestingly, this discrepancy was not brought to the court’s attention until after the tape was admitted. Furthermore, Watson made no attempt to show what, if anything, was erased. Based on the test enunciated in Beck, we do not believe it was error for the trial judge to admit the tape into evidence.

Watson acknowledged in his statement that he carried a gun during the robbery. His counsel stipulated during trial that the gun confiscated by the police was the gun used. The prosecution stipulated that the condition of the revolver was unchanged since the robbery. Dennis Grey, an expert, described the gun as a .32 caliber Clark revolver. He declared the gun would probably not fire in the condition he found it. Specifically, the revolver was missing the plastic grips and the cylinder pin, and the main spring was out of position. Grey testified that the gun could be repaired by adjusting the main spring and replacing the cylinder pin, but some type of knowledge of guns or expertise was required. However, there was no specific testimony that Watson possessed such knowledge. Grey acknowledged that the gun, when manufactured, was designed to fire a projectile. Watson contends that this evidence was insufficient to establish that the robbery was committed with a firearm.

The trial judge denied Watson’s pretrial motion to dismiss based on a finding that this court’s decision in Nash v. State, 374 So.2d 1090 (Fla. 4th DCA 1979), was controlling. Nash affirmed a conviction for aggravated assault and carrying a concealed firearm based on the use of a starter pistol which was apparently capable of being adapted to fire a projectile, although it had not been so adapted at the time of the offense. Nash relied on Bass v. State, 232 So.2d 25 (Fla. 1st DCA 1970), which held the perception of the victim as to the nature of the weapon was an important consideration:

Reasoning similar to that found in State v. Johnston, 207 La. 161, 20 So.2d 741 (1944), is particularly applicable here. Certainly, when one is confronted by another with a gun and does not know it to be unloaded, the natural reaction is to assume that the gun can be fired and can inflict great bodily harm. In such a situation and under the proper circumstances, it would not bé unreasonable for the person assaulted to attempt to repel his assailant by inflicting upon him bodily harm, which attempt might result in the death of the assailant or in the deaths of bystanders in the event that the assailant was not subdued. In such a situation, the possibility of death is not unforeseeable even though the assailant did not load his gun. This view comports with the general definition of a “deadly weapon” as one likely to produce death or great bodily injury. Goswick v. State [143 So.2d 817 (Fla.1962) ], supra.

232 So.2d at 27.

The opposite view is expressed in the recent case of Morales v. State, 431 So.2d 648 (Fla. 3d DCA 1983):

Appellants argued during the trial that the State had the burden of proving that the starter gun either had been, or could readily be, converted to fire a bullet.. The State argued that the burden was on the defendants to prove that the gun wasn’t readily convertible. The trial court, while making no specific finding as to the ability of the starter to fire a bullet, obviously accepted the State’s contention because it sentenced appellants Barzaga and Canton to the three year minimum mandatory sentence required by section 775.087. This was an incorrect application of the law and we therefore reverse on this issue.
In M.R.R. v. State, 411 So.2d 983 (Fla. 3d DCA 1982), this court said that it is the State’s burden to prove that a starter gun could expel a projectile by the action of an explosive, or that it could be readily converted to do so. The court noted that Florida courts look to the nature and the actual use of the instrument in determining whether the instrument is a deadly weapon. The subjective fear of the victim or the intent of the perpetrator is not a consideration. The court then went on to hold that because the State failed to prove that the “fake gun” was a deadly weapon, either because it was a firearm as statutorily defined and therefore a deadly weapon per se, or because it was in fact used as a deadly weapon, the finding that the starter gun was a deadly weapon could not stand. Id. at 985. Accord, I.O. v. State, 412 So.2d 42 (Fla. 3d DCA 1982). See also M.M. v. State, 391 So.2d 366 (Fla. 1st DCA 1980), where the court found that a starter gun with a warped barrel was not a “firearm” under the statute because there was no evidence that the pistol could be readily converted to expel a projectile.
Here, as in the above cited cases, there is no evidence that the starter gun displayed during the sexual battery either had been converted or could be readily converted to fire a bullet. Therefore, we cannot find that the starter pistol was a “firearm” within the meaning of section 790.001(6) or that there was a possession of a firearm within the meaning of section 775.087.

(Footnote omitted.)

Section 790.001(6), Florida Statutes (1981), provides the following definition of a firearm:

“Firearm” means any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” shall not include an antique firearm.

In our view, the legislature’s inclusion of the frame or receiver of a weapon and of mufflers and silencers within the definition of a firearm indicates that the legislature did not intend to require a finding that an operable handgun be involved in order to sustain a conviction of robbery with a firearm. While it is not entirely clear, it appears that the legislature, like the Bass court, was concerned about the perception of the victim in determining whether the weapon used should be classified as a firearm. We must apply the legislature’s definition. Here, the jury could have concluded that this weapon could be “readily converted” to expel a projectile. Similarly, the jury could have concluded that this weapon was “designed” to expel a projectile. Either of those conclusions would be sufficient to meet the definition of firearm established by the legislature. In any case, we believe the evidence was sufficient to support the implicit finding of the jury that the weapon carried by Watson was a firearm.

The trial court retained jurisdiction over one third of Watson’s sentence pursuant to section 947.16(3), Florida Statutes (1981) which authorizes retention for the purpose of reviewing the defendant’s release on parole during a period up to one-third of the sentence imposed. Watson received a sentence of 99 years in prison, a valid sentence under section 812.13(2)(a), Florida Statutes (1981), which provides for a maximum penalty of “a term of years not exceeding life imprisonment.” In Alvarez v. State, 358 So.2d 10 (Fla.1978) a similar sentence was upheld as the practical equivalent of a life sentence. In other words, regardless of the number of years set out in the sentence no defendant would in fact ever serve a term in excess of the maximum life sentence authorized by statute. Here, however, Watson contends that the period of retention of 33 years is excessive by reason of the fact that his sentence exceeds any reasonable life expectancy he may enjoy. We agree.

The maximum period that the trial court could retain jurisdiction is for one-third of life. Unlike the situation in Alvarez, 33 years is not the practical equivalent of one-third of life. We cannot say here that the length of the sentence really makes no difference. The record reflects Watson was 28 years old at the time of sentencing. In order to uphold the retention for 33 years we would have to conclude that Watson had a total life expectancy of 127 years. We reject such a conclusion as inherently improbable, if not incredible. When a defendant is sentenced to life or a term of years in excess of any reasonable life expectancy, we believe some evidence, such as mortality tables, must be presented to establish a reasonable basis for the trial court’s determination as to the period of time for which jurisdiction may be retained. In this instance we vacate the provision for retention of jurisdiction and remand to give the state and the trial court an opportunity to meet this requirement. We also acknowledge that this decision is in conflict with other appellate decisions which have approved retention of jurisdiction under similar circumstances, including the recent decision in Anderson v. State, 431 So.2d 249 (Fla. 1st DCA 1983).

Accordingly, we affirm the appellant’s conviction and his sentence with the exception of the provision for retention of jurisdiction; and we remand for further proceedings consistent herewith.

GLICKSTEIN and HURLEY, JJ., concur.

      . Other courts have held that a starter pistol with a warped barrel, see M.M. v. State, 391 So.2d 366 (Fla. 1st DCA 1980), cert. denied, 411 So.2d 384 (Fla.1981), and a cigarette lighter that is shaped like a gun, see McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978), are not deadly weapons. In Machado v. State, 363 So.2d 1132 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979), it was held that the state was not required to prove that a loaded 9 mm. automatic pistol was operable in order to sustain a conviction for robbery with a firearm.

      . Although based on somewhat different reasoning, a similar analysis of this statute is contained in State v. Altman, 432 So.2d 159 (Fla. 3d DCA 1983).

      . The mortality tables set out in Volume 3, Florida Statutes (1975) show a maximum life expectancy of 68 years. Those tables were based on a 1958 publication of the State Treasurer and Insurance Commissioner. Granted that life expectancies have increased we do not believe they have increased enough to sustain the retention imposed here.


author: ZEHMER, Judge. ZEHMER, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. Ronald R. NORTHROP and Margaret V. Northrop, Appellees.
    Nos. AQ-109, AO-284.
    District Court of Appeal of Florida, First District.
    June 27, 1983.
    On Rehearing Sept. 12, 1983.
    C. Miner Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Louis K. Rosenbloum, of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellees.
   ZEHMER, Judge.

State Farm appeals a final judgment awarding the Northrops $65,000 by allowing stacking of the uninsured motorist benefits provided by three separate automobile insurance policies issued by State Farm to Ronald Northrop and others as named insureds. As State Farm conceives it, “the question presented to this Court is whether the policies involved in this case insured ‘different named insureds’ within the purview of the last sentence of Section 627.-4132, Florida Statutes (1979).” State Farm also contends that if we reverse, then the award to appellees of attorney’s fees and costs under Section 627.428, Florida Statutes, was also error.

On July 18, 1980, Ronald Northrop, while traveling on his motorcycle, was struck by an uninsured automobile. At the time of the accident, Northrop had three automobile insurance policies in effect with State Farm. The first policy insured Northrop alone as the named insured, covered the motorcycle involved in the accident, and provided uninsured motorist coverage with limits of $15,000 each person, $30,000 each accident. The second policy insured Northrop and his wife as named insureds and covered a 1971 Ford Torino automobile. The third policy insured Northrop and his daughter as named insureds and covered a 1968 Pontiac. Each of these last two policies provided uninsured motorist coverage with limits of $25,000 each person, $50,000 each accident. The trial court entered a partial summary judgment for appellees on the issue of stacking, which became final upon the entry of judgment after a jury trial on issues of the uninsured driver’s liability and the amount of appellee’s damages.

State Farm contends that its liability is limited to the policy insuring the motorcycle which Northrop was operating at the time of the accident, relying upon the Third District Court’s opinion in Lowry v. State Farm Mutual Autumobile Insurance Co., 421 So.2d 668 (Fla. 3d DCA 1982). In Lowry, the court held that Section 627.4132, Florida Statutes (1979), prohibits stacking of multiple policies when the policies contain the same named insured, even if one or more of the policies contain an additional named insured.

On the narrow issue of statutory construction argued by the parties, we agree with the decision in Lowry, supra, that the language in Section 627.4132, in effect on July 18, 1980, was intended to prohibit “stacking” of uninsured motorist coverage in the circumstances of this case. We reverse the judgment below that allows stacking of benefits under the three policies, and reverse the allowance of attorney’s fees and costs. The case is remanded for further proceedings not inconsistent with this opinion.

ROBERT P. SMITH, Jr., C.J., and WENTWORTH, J., concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

By motion for rehearing, appellees contend it was error to reverse the award of costs, excluding attorney’s fees, to appellees because appellant disputed the issue of liability and forced appellees to try that issue, on which they prevailed. In reply to the motion for rehearing, appellant contends there was no disputed issue as to liability for the $15,000 coverage afforded in the policy covering Ronald R. Northrop. We decline to resolve the dispute, but amend our opinion filed June 27, 1983, by adding the following sentence at the end of the last paragraph:

The trial court shall reconsider whether costs, excluding attorney’s fees, should be awarded to appellees as the prevailing party on any issues of liability disputed by the appellant and tried before the Court.

ROBERT P. SMITH, Jr., and WENT-WORTH, JJ., concur.

      . Section 627.4132 provided as follows on July IS, 1980, the date of the accident in this case:
      627.4132 Stacking of coverages prohibited. —If an uninsured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.
      The statute was amended, effective October 1, 1980, to exclude uninsured motorists coverage from its operation altogether. Ch. 80-364, Laws of Florida (1980).

      . A prior appeal from that interlocutory order was dismissed by this Court on January 13, 1982, for lack of jurisdiction.

      . We note that both State Farm and appellees have only argued the meaning of the statutory language and its application to the facts of this case, which language apparently was the basis of the trial court’s partial summary judgment against State Farm. Neither party addressed whether the statute is self-executing in view of its language that “the policy shall provide,” Section 627.4132, Fla.Stat. (1979), nor did they refer to any specific policy provisions that implement the statutory mandate. Both parties argue in their briefs that premium reduction was the motivating factor behind the adoption of the anti-stacking statute in 1976 (see Sections 10 and 14, Ch. 76-266, Laws of Florida (1976)), but neither party discussed whether State Farm made any change or reduction in premiums for uninsured motorist coverage because of incorporating the anti-stacking statutory provisions in its policies. We have not determined whether these issues (or perhaps other issues of fact) have been raised by the pleadings and, accordingly, have not considered such issues.

      .Both parties agree that reversal on the stacking issue requires reversal of the attorney’s fees allowed under Section 627.428, Florida Statutes (1979).


author: SCHEB, Judge.

text:
    BANKERS INSURANCE COMPANY, Appellant, v. STATE of Florida, For the Use and Benefit of HARDEE COUNTY, Appellee.
    No. 82-2210.
    District Court of Appeal of Florida, Second District.
    July 6, 1983.
    Rehearing Denied Sept. 15, 1983.
    George F. Meehan of Harris, Barrett & Dew, St. Petersburg, for appellant.
    Barry Richard of Roberts, Baggett, La-Face, Richard & Wiser, Tallahassee, for ap-pellee.
   SCHEB, Judge.

Bankers Insurance Company appeals from a final order denying its motion to set aside a judgment of estreature of bail bonds. We affirm.

Bankers became surety on bail bonds guaranteeing the appearance of seven defendants charged under a series of four-count informations filed by the state. The defendants were charged with trafficking in marijuana, conspiracy to traffic in marijuana, violation of the Florida Racketeer Influenced and Corrupt Organization Act (RICO), and conspiracy to violate that act. The original informations were filed July 25, 1980. They were amended by the state without leave of court on December 4,1980, to add forty-two predicate acts to the thirty-one acts already alleged in support of the RICO charges.

The defendants appeared for arraignment on December 16, 1980, at which time the court overruled their objections to the state’s amendments and ordered that their bonds remain the same. Although notified of the arraignments, Bankers made no appearance and filed no objections to continuing as surety on the defendants’ bonds. The defendants failed to appear for trial, and on March 2, 1981, the trial court ordered that their bonds be estreated. A deputy clerk of the court signed the certificates of estreature.

During the year following estreature, one of the seven defendants was apprehended. After crediting Bankers for remission of the forfeiture on that bond, the court, on March 3, 1982, entered final judgment against Bankers for $957,917.44.

On April 16, 1982, Bankers filed a series of motions under Florida Rule of Civil Procedure 1.540(b), seeking to set aside that judgment and to be exonerated as surety on the defendants’ bonds. The court denied its motions and this appeal ensued.

Bankers raises two contentions. First, Bankers argues that as a result of the state’s amending the information to allege additional predicate acts in support of the RICO charges, it was subjected to greater risks than it originally agreed to assume. Bankers contends that inclusion of these additional acts changed the substance of the state’s charges, subjected the defendants to the possibility of increased penalties, and increased the likelihood of flight by defendants. All this, it argues, increased its risk as surety and relieved it of its obligation on the bonds.

As we observed in Accredited Surety & Casualty Co. v. State ex rel. Hillsborough County, 383 So.2d 308 (Fla. 2d DCA 1980), a bail bond is a three-party contract between the state, the accused, and the surety, whereby the surety guarantees appearance of the accused. The offense charged must be stated in the appearance bond and the surety’s liability on the bond cannot be extended beyond the terms of the contract. State ex rel. Dade County v. All Florida Surety Co., 59 So.2d 849 (Fla.1952). Thus, it follows that if the criminal charges are substantially changed from the charges on which the bail bond was originally written, then the surety is no longer obligated under the bond. In support of its contention that it has been relieved of its responsibility as surety, Bankers relies principally on Accredited Surety, where the accused was rearrested and then released on her own recognizance, and Midland Insurance Co. v. State, 354 So.2d 961 (Fla.3d DCA 1978), where after bond was posted on a second-degree murder charge, the state abandoned that charge and secured an indictment of the defendant for first-degree murder. In each of these cases it was held that a surety was discharged of its responsibility.

We do not find these cases to be persuasive in support of Bankers’ argument that the charges against defendants were substantially changed. Here, the condition of each bond provided that the defendants “submit to said Court to answer a charge of violation of the Florida RICO Act.” That charge was never changed. Bankers correctly points out that there is an alternate fine under the new RICO Act where the court may, if it chooses, impose a fine up to three times the gross value gained or the loss caused by the defendants’ criminal activity. § 895.04, Fla.Stat. (1981). Should the court elect this alternative fine, the potential assessment remains indefinite until subsequently established by proof. Nevertheless, the basic character of the charges remains. Regardless of what fine the court may choose to impose, a RICO Act violation is still a first-degree felony. Moreover, the record does not reveal any objection by Bankers to remaining as surety on the bonds after the amendments to the information had been approved by the court.

Second, Bankers contends that the certificates of estreature are invalid because they were signed by a deputy clerk instead of by the trial judge as provided by section 932.-46, Florida Statutes (1981). When the defendants failed to appear for their scheduled trial, The Honorable Oliver L. Green, Jr., who presided over the hearings, ordered the bonds estreated in open court. The deputy clerk typed the name of the judge on the signature line of the certificates of estreature and signed her name below the line. Judge Green subsequently entered an order nunc pro tunc stating that the original certificates of estreature were signed by the deputy clerk at the direction of the court for each of the defendants. He then filed personally signed nunc pro tunc certificates of estreature as to each bond.

It is well established that a signature may be made not only by the signer but also through someone duly authorized. State v. Hickman, 189 So.2d 254 (Fla. 2d DCA), cert. denied, 194 So.2d 618 (Fla.1966). Essentially, the judge’s signature was a ministerial act which he could delegate to a deputy clerk of court. However, even if the signature by the deputy clerk did not explicitly comply with the requirements of section 932.46, Bankers has failed to show any prejudice to it which would have justified the court in setting aside the estrea-ture.

In sum, we regard Bankers' contentions as relating to technicalities which do not affect its substantial rights and duties as surety.

AFFIRMED.

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

      . Bankers filed its notice of appeal on August 9, 1982. On appeal it argues one point that it raised in a subsequently filed motion to set aside the judgment of March 3, 1982. The trial court denied this latter motion on January 3, 1983. No appeal therefrom has been taken; hence, we do not reach that point.

      . We note the requirement for certificate of estreature was eliminated effective October 1, 1982. Ch. 82-175, § 70, Laws of Florida.


text:
    George Dwayne WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-671.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1983.
    Rehearing Denied Sept. 15, 1983.
    Jerry Hill, Public Defender, and W.C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We find error only in the court’s assessment of costs. Accordingly, we strike the trial court’s assessment of $2 court costs, and $10 assessed for the Crimes Compensation Trust Fund. These assessments were improper since appellant had been adjudged insolvent. Cox v. State, 334 So.2d 568 (Fla.1976); Johnson v. State, 403 So.2d 626 (Fla. 2d DCA 1981). Otherwise, we affirm the judgment and sentence of the trial court.

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.

      . We previously certified to the supreme court the question of whether costs may be assessed for the Crimes Compensation Trust Fund and Law Enforcement Officers Training Trust Fund against a defendant who had been adjudged insolvent. Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983).


author: MILLS, Judge.

text:
    Bobby LYONS, Appellant, v. STATE of Florida, Appellee.
    No. AO-390.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.
    Rehearing Denied Sept. 28, 1983.
    Michael Allen, Public Defender, Gwendolyn Spivey, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Lyons appeals a verdict of guilty on charges of possession of a weapon, aggravated battery, and lesser included offense of resisting an officer without offering to do violence. He raises two points on his appeal. The trial court erred in denying his request to represent himself and it erred in excluding defense evidence that the victim consented to the aggravated battery. We affirm.

After the jury had been sworn, Lyons requested that he be allowed to represent himself. The judge denied the request as untimely.

At trial, the testimony established that on 17 March 1982, Lyons and Bailey, the victim, were prisoners at Florida State Prison. Bailey, who was handcuffed, was being escorted back to his cell from the clinic by a prison guard. Lyons ran out of a door and began stabbing at Bailey with a homemade knife. Lyons was restrained by the guard and another guard recovered the knife. Four guards and Bailey testified for the State.

The defense attorney tried to cross-examine Bailey about his relationship and interaction with Lyons. The trial judge sustained the State’s objections to the questions as irrelevant. With the jury excused, defense counsel tried to proffer Bailey’s anticipated answers, but was allowed only to explain how those answers might be relevant to the defense theory of consent. The testimony of defense witnesses was also excluded as irrelevant. The defense attorney summarized their testimony and argued it would establish the defense of consent to the aggravated battery charge. The trial court assured defense counsel that it would exclude the witnesses’ testimony and Lyons’ testimony as irrelevant. Lyons then decided not to take the stand and the defense rested.

Lyons first contends that his request to represent himself was timely, and that the denial of his request, without any inquiry to determine his ability to do so, violated his rights under the federal and state constitutions. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Cook v. State, 167 So.2d 793 (Fla. 1st DCA 1964); Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967), rev’d. on other grounds, 216 So.2d 749 (Fla.1968).

He contends that there is no credible distinction between his case and Kimble v. State, 429 So.2d 1369 (Fla. 3d DCA 1983); and Martin v. State, 434 So.2d 979 (Fla. 1st DCA 1983).

In Kimble, the defendant made his request “toward the end of the jury selection process.” The Third District Court reversed his conviction because the trial court had denied his request without sufficient inquiry.

In Martin, the trial judge granted defendant’s request made on the morning of the trial and after the jury had been selected but not yet sworn.

The distinction is that Lyons made his request after the jury had been selected and sworn and as counsel were about to make their opening statements. Cappetta v. State, supra, requires: “Such request must be made prior to the commencement of trial.” Cappetta also directs:

If the defendant has not complied with the above requirements and the trial has begun with defendant represented by counsel, there must then be shown that prejudice to the legitimate interest of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge’s assessment of this balance.

We agree with the trial judge that Lyons’ request was untimely. To have granted his motion at that time would have “disrupted the proceedings already in progress,” Cap-petta, supra. It was within the trial judge’s discretion to deny the request at that time, and we have not been shown how that denial was prejudicial. Cappetta, supra.

Lyons also alleges that the trial judge erred in excluding all defense evidence that the victim had consented to the aggravated battery; thus, denying him his right to present a defense; to cross-examine witnesses; to testify in his own behalf; and to proffer excluded testimony in violation of his rights under the state and federal constitutions.

At the heart of Lyons’ argument is whether consent is a defense to criminal aggravated battery and whether the excluded testimony was relevant to consent.

First, we have determined that this point was sufficiently preserved in the record to allow this court to review it. Section 90.-104(l)(b), Florida Statutes (1981). Next, we have found that although during the trial the judge refused to accept the proffered testimony, there was enough of the testimony in the record to allow this court adequate review on whether the trial judge’s ruling was proper. Piccirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976); Phillips v. State, 351 So.2d 738 (Fla. 3d DCA 1977); Pender v. State, 432 So.2d 800 (Fla. 1st DCA 1983).

Having made these initial determinations, we reach the issue of whether consent is a valid defense to a criminal prosecution of aggravated battery. We have found no cases in Florida directly on this point. The general view is that consent is not a defense to a criminal prosecution for assault and battery, except in cases of rape. See, e.g. 58 A.L.R.3d 662 (1974). The common reason given is: “Whether or not the victims of crimes have so little regard for their own safety as to request injury, the public has a stronger and overriding interest in prohibiting and preventing such acts as this.” State v. Fransua, 85 N.M. 173, 510 P.2d 106 (1973). We agree with this view, and for this reason hold that consent is not a valid defense to criminal aggravated battery; therefore, the exclusion of testimony relating to consent was proper.

AFFIRMED.

ERVIN, C.J., and LARRY G. SMITH, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    In the Interest of R.V.F., Jr., a Child.
    No. 82-2451.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.
    Rehearing Denied Sept. 15, 1983.
    James R. Dirmann of Dirmann & Scott, Sarasota, for appellant.
    Jordan L. Wallach of Sherr & Wallach, Sarasota, for appellee.
   GRIMES, Acting Chief Judge.

The Florida Department of Health and Rehabilitative Services (HRS) seeks review of an order denying its petition for permanent commitment of a dependent child for subsequent adoption.

A detailed discussion of the facts is necessary for a proper understanding of the case. R.V.F., Jr., was born on August 9, 1979. The child and his half brother, W.W., were initially brought to a shelter care facility by their mother on October 22, 1979. Custody of R.V.F., Jr., was later returned to both parents by court order of December 13, 1979. A month later, his mother returned the child for shelter care placement because she was unable to take care of him. At this time, R.V.F., Jr.’s parents were separated, and the whereabouts of his father was unknown. R.Y.F., Jr., was adjudicated dependent on January 25, 1980, and placed under the custody and control of HRS.

In February of 1980, R.V.F., Jr.’s father learned of his child’s placement in shelter care and told a caseworker that he wanted the child back. He did not leave a forwarding address or phone number at this time. The next contact from the father was in July, 1980, when he called the caseworker and again showed interest in regaining custody of his son. He asked that his parents in North Carolina be studied as a possible placement for the child. The North Carolina home study did not recommend placement of the child with his paternal grandparents primarily because of financial and health reasons.

HRS filed a petition for permanent commitment on November 5, 1981. After the petition was filed, the father contacted HRS once again expressing interest in having the child. At the father’s request, HRS ordered a home study in Texas for the purpose of determining whether the child could properly be placed with the father and his pregnant girlfriend with whom he was then living. This study recommended against placing R.Y.F., Jr., with his father at that time.

Counsel was appointed for the father and appeared with him at the hearing on August 17,1982, to oppose the permanent commitment. The testimony presented at the hearing showed that from February of 1980 until December of 1981, the father provided no financial support for R.Y.F., Jr., nor made any attempt to communicate or visit with him. The court denied the petition for commitment but ordered the child to remain in the temporary custody of HRS. The court directed that the father be given the opportunity to actively participate in a performance agreement with the goal of regaining custody of his son and retained jurisdiction to entertain another petition for commitment if the father failed to carry out the agreement.

Section 39.41, Florida Statutes (1981), provides:

39.41 Powers of disposition.—
(1) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child shall have the power, by order, to:
(f) 1. Permanently commit the child to the department or a licensed child-placing agency willing to receive the child for subsequent adoption if the court finds that it is manifestly in the best interests of the child to do so, and:
a. If the court finds that the parent has abandoned, abused, or neglected the child; or

In the order denying the petition for commitment, the court acknowledged that according to the definition of “abandoned” in section 39.01, Florida Statutes (1981), the father had abandoned R.V.F., Jr. However, the court characterized this as a technical abandonment and relied upon the explanation of abandonment in Interest of D.A.H., 390 So.2d 379 (Fla. 5th DCA 1980), to conclude that the father’s manifestations of interest in regaining the child were sufficient to negate a complete abandonment. The problem with this analysis is that the opinion in Interest of D.A.H. specifically noted that it was relying on a case law definition of abandonment which predated the 1978 enactment of the statutory definition which now reads:

39.01 Definitions. — When used in this chapter:
(1) “Abandoned” means a situation in which a parent who, while being able, makes no provision for the child’s support and makes no effort to communicate with the child for a period of 6 months or longer. If a parent’s efforts to support and communicate with the child during such a 6-month period are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.

The court also discounted the effect of the statutory definition by construing the word “may” which appears in the second sentence as giving the court discretion not to declare a child abandoned in spite of a parent’s lack of support and communication for the six month period. To the contrary, our reading of the definition leads us to believe that the second sentence is designed merely to permit the court to declare a child abandoned even if a parent has made a marginal effort to assume parental duties. See Interest of C.M.H., 413 So.2d 418 (Fla. 1st DCA 1982), in which the statute was applied consistent with our interpretation.

The father did not contact either R.V.F., Jr., or HRS for a period of more than seventeen months prior to the filing of the petition for permanent commitment. He had provided no support since the child was declared dependent on January 25, 1980, even though the court found that he had the financial ability to do so. The father cannot hide behind his claim that he did not realize he should have paid support while the child was in foster care. The court was obviously impressed with the father's renewed interest in seeking to reacquire the child, but this cannot make up for the lengthy omission of support and communication which preceded the filing of the petition. Despite the court’s misinterpretation of the statute, the findings of fact clearly demonstrate that the child was abandoned.

The other statutory requirement for an order of permanent commitment is a finding “that it is manifestly in the best interests of the child.” The court denied the petition on the premise that the child had not been abandoned, so the question of the child’s best interests was never specifically addressed. However, to the extent that the order denying the petition implicitly carries with it a finding that permanent commitment was not in the child’s best interests, there is simply no evidence in the record to support such a conclusion. Neither of the home studies requested by the father recommended placement. Three HRS experts testified that in their opinion it was in the child’s best interests to be permanently committed for adoption. The HRS plan was for R.V.F., Jr., to be adopted by the couple which had already adopted his brother. As much as we are loath to interfere with the discretion of the trial judge in a case where the best interests of a child are involved, we are compelled to do so in this case.

We reverse the order entered below and direct that R.V.F., Jr., be permanently committed to HRS for subsequent adoption.

RYDER, J., and HANLON, MORTON J., Associate Judge, concur.


author: JOANOS, Judge.

text:
    JUMA CONSTRUCTION and United States Fidelity and Guaranty Company, Appellants, v. Orlando VILLANUEVA and the Division of Workers’ Compensation, Appellees.
    No. AR-10.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1983.
    Rehearing Denied Sept. 27, 1983.
    Summers Warden, Miami, for appellants.
    Ira J. Druckman, P.A., Miami, for appel-lees.
   JOANOS, Judge.

In this workers’ compensation case, appellant raises two issues regarding the amount of the attorney’s fee awarded by the deputy commissioner. First, appellant contends the award must be reversed because the deputy, in determining the amount of the fee, relied on an affidavit that is mathematically incorrect and not based on competent substantial evidence. The errors complained of could easily have been corrected had they been brought to the deputy’s attention within thirty days of rendition of the order, see Section 440.25(4)(a), Florida Statutes; Polk County Board of County Commissioners v. Patterson, 433 So.2d 1298 (Fla. 1st DCA 1983); Dade American Hospital Supply v. Perez, 417 So.2d 296 (Fla. 1st 1982); Sunland v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981). Therefore we affirm.

Appellant also contends the deputy erred in departing from the statutory schedule for attorneys fees, however, the deputy indicated in the order that he considered all of the relevant, prescribed factors to the extent circumstances permitted, see Roundtree Transport, Inc. v. Godek, 412 So.2d 66 (Fla. 1st DCA 1982).

The order appealed is AFFIRMED.

WIGGINTON and ZEHMER, JJ., concur.


text:
    Kenneth Eric HALL, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. AS-297.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1983.
    Rehearing Denied Sept. 28, 1983.
    Kenneth Eric Hall, appellant pro se.
    p Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Hall appeals from the trial court’s dismissal of his petition for writ of habeas corpus. Having reviewed Hall’s brief, ap-pellee’s answer and Hall’s “Traverse To Answer of Appellee” that we treat as a reply brief, we find no error and affirm.

MILLS, JOANOS and WIGGINTON, JJ., concur.


author: LARRY G. SMITH, Judge. NIMMONS, Judge,

text:
    Leonard MAZZARA, Appellant, v. STATE of Florida, Appellee.
    Nos. AP-108 & AP-109.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1983.
    Rehearing Denied Oct. 4, 1983.

      Michael P. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Kathryn Sands, Asst. Atty. Gen., Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Mazzara appeals his convictions for two counts of first degree murder and one count of conspiracy to commit murder. He raises as error the admission into evidence of a state witness’ prior inconsistent statement and the introduction into evidence of allegedly gruesome, inflamatory and irrelevant photos. We affirm.

In the summer of 1980, appellant asked Rocco Marshall, whose band played at a Jacksonville Beach inn, to locate some “crazies” to kill Frank Ihlenfeld. Appellant wanted Ihlenfeld killed because of some bad debts connected with drug dealing. Rocco put appellant in touch with Barry Hoffman, who agreed to do the killing. James Robert White was contacted to assist Hoffman in the murders.

On September 7, 1980, Hoffman and White brutally beat and fatally stabbed Ihl-enfeld and a female companion in their Jacksonville Beach motel room. With appellant’s assistance, Hoffman fled from Jacksonville. White was arrested a few months later in South Florida. On October 12,1981, Hoffman was apprehended by FBI agents in Michigan and placed under arrest.

After being advised of his rights, Hoffman declared that he wanted to give a statement to Florida authorities concerning his involvement in the murders. Officers Dorn and Maxwell of the Jacksonville Police Department flew to Michigan to take Hoffman’s statement. After being advised of his rights again, Hoffman told Dorn and Maxwell in the presence of FBI agent Lukepas that appellant paid him $5,000.00 to commit the murders. In his statement, Hoffman gave the officers the complete details of the killings and everyone’s involvement in them. Hoffman was returned to Florida where he pled guilty to two counts of first degree murder in return for the State’s promise not to seek the death penalty. Apparently, as part of his plea bargain, Hoffman agreed to testify against appellant.

Notwithstanding his prior representations to the contrary, when Hoffman was called at appellant’s trial to testify, he denied killing anyone and denied any involvement with appellant. Hoffman admitted that he had given a deposition in which he testified that he had conspired with appellant to kill the victims, but at the trial he maintained his innocence and explained that he pled guilty and agreed to testify against appellant to avoid the death penalty. Immediately thereafter, the State called FBI agent Lukepas to the stand. Lukepas testified that he was present when officers Dorn and Maxwell interviewed Hoffman in Michigan and that Hoffman, with full knowledge of his constitutional rights, made a statement to Dorn and Maxwell. Lukepas elaborated that Hoffman told him and the officers that appellant wanted Ihlenfeld killed, that Hoffman and White killed Ihlenfeld and his female companion, and that appellant took Hoffman to the airport and paid him money for doing the killings. Next, the state called officer Dorn, who also related Hoffman’s Michigan statement to the jury. Appellant objected to this testimony on the grounds that it constituted impermissible hearsay. The trial court overruled the objection on the grounds that Hoffman was an adverse witness and could be impeached by evidence of his prior inconsistent Michigan statement as set forth in Section 90.-608(2), Florida Statutes (1981).

Appellant contends that since his Michigan statement was not given under oath in some court proceeding, the provisions of Section 90.801(2)(a) do not apply, and the testimony concerning the statement should have been excluded under the rule that a prior inconsistent statement may not be admitted as substantive evidence, but only for impeachment. Smith v. State, 379 So.2d 996 (Fla. 5th DCA 1980); Delame v. State, 362 So.2d 689 (Fla. 2nd DCA 1978); Perry v. State, 356 So.2d 342 (Fla. 1st DCA 1978); Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976); and Rankin v. State, 143 So.2d 193 (Fla.1962).

Admittedly, Hoffman’s Michigan statement was not admissible under Section 90.801(2)(a) since it was not given under oath. Compare Webb v. State, 426 So.2d 1033 (Fla. 5th DCA 1983). However, the use of the statement was proper under Section 90.608(2) as impeachment of Hoffman’s in-court testimony, which differed substantially from his prior Michigan statement on relevant issues.

Although Section 90.608(2) no longer requires the prosecution to be surprised when a witness proves adverse, it is clear from the record that everyone involved in this trial proceeding was surprised by Hoffman’s turncoat performance on the witness stand. More importantly, Hoffman’s in-court testimony, exculpating appellant in the eyes of the jury, was extremely prejudicial to the state’s case. Under the circumstances, the state was entitled to eliminate from the jury’s mind the prejudicial effect of Hoffman’s adverse testimony by proving that Hoffman made a statement on another occasion that was inconsistent with his testimony in court. Adams v. State, 34 Fla. 185, 15 So. 905 (1894).

The authorities cited by appellant do proscribe the use of a prior inconsistent statement as substantive evidence. We acknowledge that the testimony as to Hoffman’s Michigan statement supplied positive evidence of appellant’s guilt for the jury’s consideration. If there were no other evidence in this record establishing the facts contained in the Michigan statement, then we would be compelled to reverse. However, through the testimony of Rocco Marshall, the state proved the elements of each offense. Hoffman’s Michigan statement merely corroborated the facts already adduced. This case is not governed by the rule which prohibits the prosecutor from introducing an inconsistent statement, under the guise of impeachment, for the primary purpose of placing before the jury substantive evidence not otherwise established by the facts already introduced in evidence. Compare Smith, supra; Delanie, supra; Pitts, supra; and Rankin, supra.

Finally, the four photographs introduced at trial demonstrated the gangland slaying of Ihlenfeld and his companion and as such were relevant. See, Alford v. State, 307 So.2d 433 (Fla.1975), cert. den. 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). “Gruesome and gory photographs may and should be admitted if they properly depict the factual conditions relating to the crime and if they are relevant in that they aid the court and jury in finding the truth.” Swan v. State, 322 So.2d 485, 487 (Fla.1975). These photographs were not so inflammatory as to create an undue prejudice in the mind of the jury. Two of the photographs identify the crime scene and the positions of the victims. The other two depict the appearance of each victim’s body. The photographs, which were not duplicitous, were admissible.

AFFIRMED.

JOANOS, J., concurs.

NIMMONS, J., concurs specially with an opinion.

NIMMONS, Judge,

specially concurring.

I concur in Judge Smith’s opinion. I do so with somewhat different emphasis. Pri- or inconsistent statements of witnesses who prove adverse within the meaning of Section 90.608 are admissible under that section for the purpose of impeachment of such witness but not as substantive evidence. When evidence admissible for one purpose, but inadmissible for another, is admitted, the court, upon request, is required to instruct the jury as to the limited purpose for which the evidence is received. Section 90.107, Florida Statutes (1981). This principle was recognized and applied before the adoption of the Florida Evidence Code to prior inconsistent statements admissible, as here, for impeachment purposes, but inadmissible as substantive evidence. Johnson v. State, 249 So.2d 470 (Fla. 3rd DCA 1971); Walter v. State, 272 So.2d 180 (Fla. 3rd DCA 1973). It is apparent, however, from those cases and from the provisions of Section 90.107 that a party must request a limiting instruction in order to be entitled to assert error by reason of the court’s failure to so instruct. Appellant made no request of the trial court for such a limiting instruction and since the testimony was admissible as previously indicated, no error was committed by the trial court in allowing the same.

Even if the trial court had denied a request for a limiting instruction, I am of the view that such error would be harmless not simply because there was, as the court’s opinion notes, substantial evidence of guilt apart from such statements, but for the reason that there was testimony that he had made similar statements under oath in his subsequent deposition in the instant case. Evidence of such sworn statements is not regarded as hearsay and is admissible as substantive evidence under Section 90.-801(2)(a). See Webb v. State, 426 So.2d 1033 (Fla. 5th DCA 1983); State v. Moore, 424 So.2d 920 (Fla. 4th DCA 1983). Thus, any error in allowing testimony regarding Hoffman’s prior unsworn inconsistent statements without an appropriate limiting jury instruction would be harmless.

      . Appellant has not raised on appeal any question as to whether Hoffman met the test of “adverseness” under Section 90.608(2). Appellant apparently concedes that Hoffman did not simply fail to give the testimony expected of him by the State but instead gave testimony which was prejudicial to the State. See Johnson v. State, 178 So.2d 724, 728 (Fla. 2nd DCA 1965). Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (Fla.1945). Compare Tipton v. State, 402 So.2d 479 (Fla. 1st DCA 1981) (Smith, R., specially concurring).


author: LETTS, Judge.

text:
    BROWARD COUNTY, Appellant, v. James H. PAYNE, etc., et al., Appellees. James H. PAYNE, etc., et al., Appellants, v. CITY OF CORAL SPRINGS, Appellee. James H. PAYNE, etc., et al., Appellants, v. Steven WALLICE, etc., et al., Appellees.
    Nos. 80-1966, 80-2126 and 81-4.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Oct. 7, 1983.

      Harry A. Stewart, Gen. Counsel, and John Franklin Wade, Asst. Gen. Counsel, Fort Lauderdale, for Broward County.
    Larry Klein, West Palm Beach, and Ronald E. Solomon, P.A., Fort Lauderdale, for appellee-School Bd. of Broward County.
    Martin J. Sperry of Krathen & Sperry, P.A., and Nancy Little Hoffmann of Law Offices of Nancy Little Hoffmann, P.A., Fort Lauderdale, for Payne.
   LETTS, Judge.

The principal question presented in these consolidated appeals is whether the failure to install a traffic signal at an intersection near a school, which failure allegedly contributed to the accident that killed a 17 year old student, constitutes a planning or an operational function of government.

At first blush it appears obvious that it was a planning function which granted absolute immunity, by reason of the recent Supreme Court decision in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982). However, the case now before us, while superficially on all fours with Neilson, possesses an additional factual wrinkle. Apparently, the forces of government in the case at bar were in agreement that a traffic light was needed and indeed the decision to install one had been arrived at. Yet, over a two year period the actual installation had not been carried out.

As a consequence, the question before us, more narrowly stated, is: Would any delay between the decision to install the light and the actuality of installation extend the planning immunity cloak during the hiatus? We answer in the affirmative and reverse.

The fruition of plans to widen a road, build a school, repave a highway, condemn a house, hire more police, buy a fire engine, request Federal aid, widen a sidewalk, erect barriers, and yes, install a traffic light are more often than not delayed for years before completion because of shortage of funds or competent available personnel. Until a governmental plan is implemented, it continues as just that — a plan. A decision to four lane a highway may be shelved for as much as a decade awaiting public monies to actually achieve it. . We cannot expect a government to rush out and install a traffic light the day after it is deemed prudent to do so by the appropriate planning department. To the obvious comment that this delay was not for only the day, but was for over 700 days, we can only declare ourselves unwilling to delineate any time table.

The above would conclude this opinion, but for a new conundrum visited on us, but a few days ago, by our superiors in Tallahassee. In Harrison v. Escambia County School Board, 434 So.2d 316 (Fla.1983) the Supreme Court found the location of a school bus stop was a planning decision. However, it concluded with a secondary holding (tracking Collom, infra) that if a known danger is created by a governmental body there is a duty to warn. In the case at bar the County built a new spin-off right-of-way (Rock Island Road) at the ill fated intersection which it is suggested contributed to the accident. Was this the creation of the kind of known danger which requires a warning or an aversion of the danger? Did the decision once made of the need to install the traffic light carry with it the concomitant duty to warn until such time as the light was operational? Finally, as the Supreme Court required in Harrison, did the instant complaint adequately allege the dangerous condition requiring warning notice of the danger? We have read and reread the complaint and while its 32 pages allege almost everything but the proverbial kitchen sink, its allusions to creation of dangerous conditions, and failure to warn of them, do not appear to rise to the level “needed under City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982) and Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982).”

However, continuing with our uncertainty as to the delineation between operations and planning as recently expressed in Carter v. City of Stuart, 433 So.2d 669 (Fla. 4th DCA, 1983) and believing the matter to be of great public importance, we certify the three questions propounded in the previous paragraph to the Supreme Court.

We also take judicial notice of the fact that the recent lower court decisions, law review notes and legal periodical articles redound with wailing and gnashing of teeth on how to define and apply the' dictates of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). The so-called Modlin doctrine discarded by Commercial Carrier may well have been unsatisfactory but at least we all understood it!

The remaining questions on appeal about failure to provide signs, crosswalks, pedestrian signals, sidewalks, fences, barriers, striping and other protective devices all appear to us to be included in our discussion on the traffic light and to have been decided in favor of governmental immunity by the various cases cited herein. Accordingly, we do not address each of them in detail.

We conclude that the court should have directed a verdict in favor of the County and remand this cause for entry of a judgment in accordance herewith.

REVERSED AND REMANDED.

HERSEY and WALDEN, JJ., concur.