author: DANIEL S. PEARSON, Judge.

text:
    Joe DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2394.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

This case was previously before us when the State appealed an order granting the defendant a new trial after he was convicted of the crime of displaying a firearm during the commission of a felony. We affirmed that order in State v. Davis, 411 So.2d 1354 (Fla. 3d DCA 1982) [Davis I], and the defendant was retried and again convicted. In the present appeal, the defendant contends that the charge against him should have been dismissed rather than retried because first, the verdicts in his initial trial finding him not guilty of second-degree murder and guilty of displaying a firearm during the commission of a felony were legally inconsistent so as to bar the entry of a judgment of guilt on, and thus the reprosecution of, the firearm charge; and second, the order granting him a new trial, although ostensibly limiting his relief to that .stated, effectively acquitted him of the firearm charge so as to prevent a retrial. His alternative contention is that even if his retrial on the firearm charge was legally permissible, the State was nonetheless collaterally estopped from basing that firearm charge, in whole or in part, on the felony — that is, murder — for which the defendant had been acquitted at his initial trial.

I.

The defendant’s first contention comes as no surprise to us, and our rejection of it should come as no surprise to the defendant. In Davis I, the special concurrence predicted that “[b]y omitting further comment on these ostensibly inconsistent verdicts, we [would] invite the defendant’s opening salvo on remand to be that under Redondo v. State, 403 So.2d 954 (Fla.1981), the acquittal on Count One [murder] undermines the conviction on Count Two [possession of a firearm during the commission of a felony].” 411 So.2d at 1355. The defendant proved the concern to be well founded when, upon the return of the case to the trial court, he moved to dismiss the surviving firearm charge on the anticipated Re-dondo ground, despite the concededly nonbinding warning of the special concurring opinion that the conviction on the possession count would survive any Redondo attack. See 411 So.2d at 1355. We now make that dictum come true. First, by failing to cross-appeal the denial of his motion for judgment of acquittal, the defendant waived his right to later challenge that denial by a motion to dismiss further proceedings on double jeopardy grounds. Cf. State v. One (1) 1977 Volkswagen, VIN/1773229365, Florida License “KTV- 062,” 455 So.2d 434, 436 (Fla. 1st DCA 1984) (on rehearing). Clearly, the defendant, who had moved for a judgment of acquittal on the ground, inter alia, that the verdicts were inconsistent, had properly preserved the point in the trial court, see Ayrado v. State, 431 So.2d 320 (Fla. 3d DCA 1983) (post-trial motions for arrest of judgment or judgment of acquittal sufficient to preserve for appellate review contention that jury verdicts inconsistent), and clearly, he could have raised the point by cross-appeal, see State v. Williams, 444 So.2d 434 (Fla. 3d DCA 1983).

Second, even had the point not been waived, the rule of Redondo does not apply to the verdicts in Davis’ first trial because the record of that trial:

“reflects that the jury, instructed on Count Two that the defendant could be found guilty of possession and display of the firearm ‘while committing or attempting to commit the felony of second degree murder,’ was not instructed as to Count One on the offense of attempted second-degree murder. This means that the jury logically could have found that the defendant attempted to commit the felony of second-degree murder so as to support the conviction of possession and display of a firearm during the course of that felony, and still have acquitted the defendant of the crimes of second-degree murder and manslaughter, the only offenses upon which, under the court’s instructions, it could have returned a verdict on Count One. Under such circumstances, the conviction on Count Two may stand.”
State v. Davis, 411 So.2d at 1355 (Pearson, J., concurring) (emphasis in original; footnote omitted).

See State v. Pitts, 400 So.2d 549 (Fla. 3d DCA 1981), aff'd, 425 So.2d 542 (Fla.1983); McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981), aff'd, 425 So.2d 1 (Fla.1983); Cooper v. State, 448 So.2d 6 (Fla. 3d DCA) (concurring opinion), rev. dismissed, 450 So.2d 485 (Fla.1984).

II.

The defendant’s second contention, namely, that the trial court’s “new trial” order effectively acquitted him of the sole remaining charge, like his contention respecting inconsistent verdicts, is one that could have been raised on cross-appeal when the State appealed the order granting the defendant a new trial. But again, instead of asserting that he had not obtained the full relief to which he was entitled, see Williams v. State, 444 So.2d at 437, the defendant merely chose to defend the propriety of the grant of a new trial. The State again says that the defendant waived his right to assert his claimed “acquittal” as a bar to his retrial when he elected not to seek by cross-appeal our declaration that the order granting him a new trial in fact acquitted him of the firearm charge. We again agree with the State.

The contention that the trial court should have acquitted the defendant of the offense, unlike the contention that the defendant was acquitted of the offense, is one that seeks to collaterally attack an existing judgment of conviction. In order for the trial court to have granted the defendant relief in the instant case, it would have been necessary for it to revisit the order denying the defendant’s motion for judgment of acquittal entered in the defendant’s first trial, an order which had long since become final after the defendant failed to challenge it on the initial appeal.

The defendant argues, however, that his motion to dismiss in the present case does not seek to avoid the impact of a long-since affirmed final judgment of conviction, but in reality seeks to enforce a final judgment of acquittal. He correctly says that what constitutes an “acquittal” is not controlled by the form of the trial court’s action, see United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and goes on to urge that the ruling of the trial court after his initial trial, although in form the grant of the lesser relief of a new trial, in substance was the entry of a judgment of acquittal. While it is true, as the defendant argues, that the trial judge’s order granting a new trial states that he would have granted a judgment of acquittal were it not for the fact that to do so would have precluded the State from appealing, the order otherwise reveals that the judge’s inclination to acquit the defendant stemmed from his disbelief of the testimony of the State’s principal witness, a seven-year-old girl. Of course, “[t]he credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The trial judge’s remarks, in our view, have no greater significance than a statement that had he been the trier of fact, he would have acquitted the defendant. As this court said in Rodriguez v. State, 436 So.2d 219, 220 (Fla. 3d DCA 1983), rev. denied, 447 So.2d 888 (Fla.1984):

“The fact that before the trial judge sent this case to the jury, he stated on the record that he would have acquitted the defendant had he been sitting as the trier of fact, is of no moment. In ruling on a motion for judgment of acquittal, the test is not whether the trial judge would acquit the defendant had he been the trier of fact.”

Thus, it is clear to us that the trial judge did not find the evidence legally insufficient and did not acquit the defendant by word or otherwise.

III.

Having decided that the defendant was not effectively acquitted in his first trial of the crime of displaying a firearm during the commission óf a felony either by virtue of being acquitted of the underlying felony of murder or by the trial court’s order granting him a new trial, we turn to the question of whether the retrial of the defendant on the firearm charge, although legally permissible, was conducted in such a manner as to place the defendant twice in jeopardy.

The defendant’s contention is that the doctrine of collateral estoppel as delineated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), prevents the relitigation of the issue of whether the defendant was guilty of the crime of second-degree murder, an issue of ultimate fact which was determined in the defendant’s favor in the initial trial by a valid and final judgment. While collateral estoppel is “a protection embodied in the fifth amendment guarantee against double jeopardy,” United States v. Henry, 661 F.2d 894, 897 (5th Cir.1981), cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1982), the concepts are distinct in that “the traditional bar of double jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime.” United States v. Mock, 604 F.2d 341, 343-44 (5th Cir.1979), conviction aff'd after remand, 640 F.2d 629 (5th Cir.1981). See United States v. Mulherin, 710 F.2d 731 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1305, 79 L.Ed.2d 703 (1984); State v. Gunn, 381 So.2d 1186 (Fla. 2d DCA 1980).

In the present case, there is little doubt that double jeopardy would bar the repros-ecution of Davis for the crime of displaying a firearm while committing the crime of second-degree murder. It follows, says the defendant, that the State is collaterally es-topped from (a) prosecuting Davis under an information which here charges that the defendant did unlawfully display a firearm while “committing or attempting to commit” murder, and (b) introducing evidence to show that the defendant committed a murder. The defendant further argues that the doctrine of collateral estoppel also precludes the trial court from instructing the jury, as it did, that it could convict the defendant of the crime of displaying a firearm while committing or attempting to commit the felony of murder.

We believe that we need go no further than the jury’s verdict to decide that the defendant must prevail. The verdict form, submitted over the defendant’s objection, asked the jury to find the defendant guilty or not guilty of the charge of unlawful possession of a firearm “while committing or attempting to commit a felony, to wit: Murder.” (emphasis supplied). The jury’s undifferentiated finding of guilt was at least just as likely a finding that the defendant possessed a firearm while committing murder as it was a finding that the defendant possessed a firearm while attempting to commit a murder. Therefore, because Davis’ conviction may very well be for a crime for which he has already been acquitted, it cannot stand. See Pugliese v. Perrin, 731 F.2d 85 (1st Cir.1984) (where defendant previously acquitted of manslaughter, instruction to jury in trial of defendant on lesser-included offense of negligent homicide that it could find the defendant guilty of negligent homicide on the basis of manslaughter-type conduct— that is, purposeful, knowing, or reckless conduct — as well as negligent conduct, violated principle of collateral estoppel embodied in the Fifth Amendment guarantee against double jeopardy); Feela v. Israel, 727 F.2d 151 (7th Cir.1984) (where defendant previously acquitted of van theft, introduction of evidence of van theft and instruction to jury which permitted them to find van theft an act to effect the object of the conspiracy to commit armed robbery violated doctrine of collateral estoppel).

Accordingly, we conclude that Davis is entitled to a new trial solely on the charge of displaying a firearm during the commission of an attempted murder. Reference in the information to the actual commission of murder is to be stricken, and the jury is to be instructed, and the verdict form is to reflect, that in order to find the defendant guilty, it must find that he displayed a firearm during the commission of an attempted murder. Moreover, at this new trial, the State’s proof and arguments should be restricted to the crime for which the defendant is on trial and should not include references to the crime for which the defendant has been acquitted. See Humphries v. Wainwright, 584 F.2d 702 (5th Cir.1978); McDonald v. Wainwright, 493 F.2d 204 (5th Cir.1974).

Reversed and remanded for a new trial.

      . Although, as we have said, the defendant has waived any claim that the evidence at his first trial was legally insufficient to convict, that is, that the trial court should have granted his motion for judgment of acquittal, we note that no record of the defendant’s first trial is before us, and we could not decide such a claim. Moreover, on the present appeal, the defendant does not raise insufficiency of the evidence at his second trial, perhaps suggesting that he agrees that the evidence submitted, presumably of the same quantity and quality as the evidence at the first trial, was legally sufficient despite the trial court’s concern about its evidentiary weight. See Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

      . The information upon which the defendant was originally tried made no mention of attempt. When we affirmed the new trial order and returned the case to the trial court, the State filed a superseding information disjunc-tively charging the commission of murder and the attempt. The defendant’s motion to dismiss this information on the ground that he was acquitted of the murder was denied, and the court refused to strike "committing" from the information.

      . We reject the defendant’s related claim that he cannot be prosecuted for display of a firearm during the commission of attempted murder. First, we implicitly decided that issue against the defendant in State v. Davis, 411 So.2d 1354. Second, Davis’ assertion that the jury’s acquittal of him necessarily found in his favor on his self-defense claim, therefore precluding the revisiting of the question of his culpability for an attempt, is sheer speculation, particularly in light of the jury's contrary finding that Davis was guilty of the firearm offense. See United States v. Whitaker, 702 F.2d 901 (11th Cir.1983); Harris v. State, 449 So.2d 892 (Fla. 1st DCA 1984); State v. Wade, 435 So.2d 898 (Fla. 1st DCA 1983), rev. denied, 443 So.2d 980 (Fla.1984); Robinson v. State, 393 So.2d 33 (Fla. 1st DCA 1981).

      .The State’s theory, arguments and proof at Davis’ second trial were indistinguishable from its theory, arguments and proof at Davis' first trial, despite Davis’ acquittal on the murder charge. While much of the evidence to prove attempted murder and murder will obviously be the same, evidence concerning the victim’s death, autopsy, etc. can be readily excluded. See State v. Perkins, 349 So.2d 161 (Fla.1977). See generally Annot., Admissibility of Evidence As To Other Offense As Affected By Defendant’s Acquittal of That Offense, 25 A.L.R. 4th 934 (1983).


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    Bobby Lee WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2229.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven Kolod-ny and Carolyn Snurkowski, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   FERGUSON, Judge.

Defendant appeals his convictions for robbery and burglary. His sole contention is that the trial court erred in denying his motion for mistrial based on certain prose-cutorial comments. The State does not contend that the remarks were proper but claims that the comments were (a) invited by remarks of defense counsel, (b) harmless error, or (c) cured by the trial court’s instruction given immediately following the comments. We agree with the defendant and reverse.

In the afternoon of November 27, 1982, the victim and her husband were driving on 1-95 when they developed car trouble. The couple pulled off the expressway and Mr. Goodman exited the vehicle to call for a tow truck. He locked the car doors leaving the driver’s side window open approximately twelve inches for ventilation. A few minutes later, a car pulled up behind the Goodmans’ car. One of the occupants approached the Goodmans’ car, put both hands on the driver’s side window, and asked Mrs. Goodman for the time. As she raised her arm to give the time, the individual pulled her purse with his right hand and held a knife in his left hand. Mrs. Goodman let go of the purse, screamed, and jumped out of the car. As the assailant ran, Mr. Goodman, who had seen the robber reach into the car, gave chase. The assailant jumped into the waiting car and locked the door. For a few seconds Mr. Goodman was face-to-face with the assailant before the car sped away. The purse contained cash, credit cards, and valuable jewelry.

The police were called and arrived soon afterward. Mr. Goodman was shown a large number of photos, and he identified a picture of the defendant as the assailant. Mrs. Goodman was too upset to make an identification. On December 2, 1982, the Goodmans went to the police station and both selected a picture of the defendant as being the robber. The Goodmans further described the assailant’s vehicle as a new Chevrolet or Oldsmobile.

At trial, the defendant relied primarily on an alibi. He testified that he left his home at approximately 11:00 a.m. to go to a rhythm and blues concert. The concert featured six different groups and was to last all day. He did not return home until approximately 11:00 p.m. when the concert ended. His alibi was corroborated by the testimony of Chris Walden, a friend who had accompanied the defendant to the concert and had been with him all day.

In the course of closing arguments, defense counsel argued that the State did not sufficiently refute the defendant’s alibi, stating:

All they would have had to have done is get any one person in that neighborhood to say they saw Chris Walden or Bobby Lee Williamson [the defendant] in that neighborhood or anywhere else, but they didn’t do it. They couldn’t do it because Bobby and Chris were at the concert and it is unrebutted.
When His Honor asked, do you have any rebuttal witnesses, people to counter what the defense has said, no, we don’t. We don’t have no one to rebut that.

The prosecutor responded to this in closing argument:

Now, ladies and gentlemen, basically, this case comes down to one real issue, whether or not you are going to believe Mr. and Mrs. Goodman, the state’s witnesses.
You know, the defense brought up, we didn’t bring in all these other people. You know the state can’t win this type of situation.
We could have brought in the neighborhood and have them tell you what they saw.
The defense would have said these people are lying, [e.s.]

The propriety of these comments is the subject of this appeal.

Defendant correctly contends that the prosecutor’s comments were improper, in that they implied the existence of additional, highly incriminating testimony. The remarks are quite similar to those condemned in Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976). There, the defendant was charged with possession of cocaine and marijuana. The drugs had been seized in the yard adjacent to the defendant’s residence. The only evidence linking the seized drugs to the defendant was the testimony of one of the officers at the scene, to the effect that defendant had admitted ownership of the drugs. Although approximately ten officers had conducted the search, the prosecution produced only one officer as a witness. In his closing argument, the prosecutor stated:

Now there were a lot of officers there; and I did tell you that I was going to present five of them. This was a mistake on my part, because at the time I thought that I was going to, but there wasn’t any need.
I could have put on those other police officers who were in my office who heard Detective Frazer say that this man said those statements. I saw no need. So hold it against me. Don’t hold it against Detective Frazier [sic]. I could have brought in other witnesses, just like defense counsel said, just like Sergeant Pacitti could have submitted those things for fingerprint analysis. Sure, he could have, but he didn’t feel there was a need. He thought he had a good case, .... Id. at 551.

The court reiterated the well-established rule that a prosecutor may not express his belief in the guilt of the accused where doing so implies that he has additional knowledge or information about the case which has not been disclosed to the jury. The court here found:

Nothing as subtle as an expression of belief in guilt implying access to additional evidence occurred in the case at bar. Instead, the prosecutor here represented outright to the jury that he had additional evidence of appellant’s guilt which he simply saw no need to present to them. This representation was highly improper and prejudicial, especially in the context of this case. Id. at 552.

Accord Richardson v. State, 335 So.2d 835 (Fla. 4th DCA 1976) (prosecutor’s comment that: “I could have brought in a lot of police officers” implies existence of additional, harmful evidence and constituted reversible error); cf. Libertucci v. State, 395 So.2d 1223, 1225 n. 5 (Fla. 3d DCA 1981) (prosecutor’s comment that but for its inability to call a certain witness, the prosecution would have called him, unfairly suggests that the witness’s testimony would lend support to State’s case and is improper under Richardson and Thompson cases).

The State responds first that the prosecutor’s remarks here were invited by defense counsel’s earlier comment on the lack of State witnesses to rebut the defendant’s alibi. The argument of defense counsel was plainly a permissible one. See, e.g., White v. State, 377 So.2d 1149 (Fla.1979), cert. denied, 449 U.S. 845, 101 S.Ct. 129, 66 L.Ed.2d 54 (1980) (prosecutor said: “You haven’t heard one word of testimony to contradict what she has said, other than the lawyer’s argument”; prosecutor may properly point out that there is an absence of evidence on a certain issue); State v. Mathis, 278 So.2d 280 (Fla.1973) (prosecutor may properly indicate that there was no evidence on the involuntariness of defendant’s confession by stating: “Now, did you hear one thing about him getting beaten up or somebody was pounding on his head, forcing him into this? Not a word about it.”); State v. Jones, 204 So.2d 515 (Fla.1967) (prosecutor’s remark that: “Now where is the evidence that says that he didn’t know what he was doing?” was proper to refute insanity defense where it was addressed to the evidence as it existed before the jury). That defense counsel’s argument is proper, however, does not mean that it did not invite some prosecutorial response. We must decide whether the response in this case was within permissible bounds.

In Cook v. State, 391 So.2d 362 (Fla. 1st DCA 1980), defense counsel permissibly referred to the paucity of evidence produced by the State, and questioned why certain witnesses were not called by the State. The prosecutor then commented on the fact that the defense had the same subpoena power as the State. In upholding the defendant’s conviction, the court characterized the comment as fair in response to the defendant’s summation. It did note, however, that the prosecutor was skirting the outer limits of permissible prosecutorial conduct. These limits were apparently exceeded in Wilder v. State, 355 So.2d 188 (Fla. 1st DCA 1978), the case which best illustrates the impropriety of the comments in the instant case. Wilder was charged with larceny, and the defense argued to the jury in closing that the jury should consider as a weakness in the State’s case its failure to call the arresting officer to corroborate the testimony of its chief witness. The prosecutor argued that it could have called the officer, but chose not to because his testimony would simply parallel that of the main witness. The court reversed for a new trial, holding that:

The state must of course have an opportunity to reply when defense counsel argues the insufficiency or lack of evidence. Defense counsel’s argument in this case may well have prompted a state reply that [the] evidence could not have been received over objection if offered in the state’s case in chief, [cite omitted], that the witness was as available to the defense as to the state, and that Nelson’s identification testimony was not impeached. However, the alternatives available to the state did not include power to recite to the jury testimony the missing witness would have given if called, [e.s.] Id. at 189.

The prosecutor’s remarks in this case, unlike those in Cook, did not merely bring up the fact that the defendant also could have called neighborhood witnesses. Instead, they implied that the State could have called such witnesses if it wished to, that they would have testified favorably towards the State, and further that the only reason the State did not call these witnesses was because defense counsel would have called them liars. Under Wilder, the prosecutor’s comments were not invited by defense counsel’s simple comment on the lack of State evidence.

Nor was the error harmless. The case against defendant was by no means overwhelming. Both Mr. and Mrs. Goodman testified that the robber had no facial hair; the defendant had a mustache and beard. Mrs. Goodman described the robber’s nose as having a bump and being “curved a little”; the defendant had no bump on his nose. The car in which the assailant fled was described as “brand-new”; the defendant owned a 1971 yellow Cadillac. Further, Mrs. Goodman’s credit cards were still being used as late as January or February of 1983; the defendant was arrested on December 2, 1982. In a close case, a court must carefully examine the challenged error to ensure that it in no way prejudiced the accused. Richardson, 335 So.2d at 836; Thompson, 318 So.2d at 552. We cannot say in this case that the absence of prejudice is plain, therefore, the error may not be categorized as harmless.

Finally, the error was not cured by the trial court’s instruction to disregard the prosecutor’s remarks. As Florida courts have consistently held since Deas v. State, 119 Fla. 839, 161 So. 729 (1935):

When it is made to appear that a prosecuting officer has overstepped the bounds of that propriety and fairness which should characterize the conduct of a state’s counsel in the prosecution of a criminal case, or where a prosecuting attorney’s argument to the jury is undignified and intemperate, and contains aspersions, improper insinuations, assertions of matters not in evidence, or consists of an appeal to prejudice or sympathy calculated to unduly influence a trial jury, the trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments, [e.s.] Id. at 845, 161 So. at 731.

The trial judge’s instruction that the jury simply disregard the prosecutor’s statements here was insufficient to destroy the likelihood of jury prejudice against the accused. See also State v. Coron, 411 So.2d 237 (Fla. 3d DCA 1982); Ruiz v. State, 395 So.2d 566 (Fla. 3d DCA), rev. denied, 407 So.2d 1106 (Fla.1981).

Reversed and remanded for a new trial.


author: PER CURIAM.

text:
    F.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2900.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Because the state failed to establish the market value of the property so as to classify it as a felony under sections 812.-012(9)(a)(l) and 812.014(2)(b)(l), Florida Statutes (1983), the juvenile’s conviction for grand theft is reversed. Negron v. State, 306 So.2d 104, 108 (Fla.1974); Taylor v. State, 425 So.2d 1191, 1194 (Fla. 1st DCA 1983). Consequently, the defendant’s adjudication of delinquency is reduced from grand theft to petit theft. JJ. v. State, 438 So.2d 988 (Fla. 3d DCA 1983).

As modified, the adjudication and sentence for delinquency is affirmed.


author: HENDRY, Judge.

text:
    Maxine NEWMAN, Appellant, v. Arthur NEWMAN, Appellee.
    No. 84-658.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.

      Norman K. Schwarz and Louis Tertocha, Miami Beach, for appellant.
    Jerold Feuer, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

Appellant takes this appeal from a final order of the trial court which denied her petition to adjudicate claimed arrearag-es of child support for which the appellee was obligated pursuant to a 1976 final judgment of dissolution. The order appealed additionally declined to hold the appellee in contempt, and dismissed the cause. The question presented for review is whether the appellant, as former custodial parent of a now-emancipated child, is entitled to seek enforcement of the claimed arrearages in child support which accrued before the child reached age eighteen. We believe she is, and accordingly, reverse the order of the trial court.

This court recently held, in Massey v. Massey, 443 So.2d 294 (Fla. 3d DCA 1983), that a mother had both the right and standing to enforce, pursuant to the Uniform Reciprocal Enforcement of Support Act, child support obligations of the father which had accrued after the children turned eighteen. The parties in Massey had agreed, prior to the effective date of section 743.07, Florida Statutes (1973) (removing the disability of non-age for all persons 18 years of age or older), that the father would pay child support until the parties’ children reached age twenty-one. Massey’s holding was grounded upon the dissent authored by Judge Winifred J. Sharp in Cronebaugh v. Van Dyke, 415 So.2d 738 (Fla. 5th DCA 1982), pet. for rev. den., 426 So.2d 25 (Fla.1983), another case involving a “limbo” support order. While the instant case does not involve a “limbo” support order, we nonetheless find persuasive the reasoning and authorities of Judge Sharp’s dissent in Cronebaugh, and again rely thereon, as we did in Massey. To reiterate,

[t]he fact that a child attains eighteen years should no.t make the child support obligation unenforceable by the former spouse, whether it is a post 1973 dissolution judgment or not.11 The fact that an ostensibly third party beneficiary (the child) can, if it chooses, enforce an agreement incorporated in a judgment, should not deprive one of the parties in privity (the wife in this case) of the right to enforce the provisions of that same agreement or judgment.
11. Cf. Catches v. Catches, 409 So.2d 1199 (Fla. 1st DCA 1982) (Evident standing of wife to seek reinstatement of contempt order for nonpayment of support after children have reached their majority).

Cronebaugh v. Van Dyke, 415 So.2d at 745 (Sharp, J., dissenting). Furthermore, we find that this result is dictated by the nature of the wife/former custodial parent’s right to payment of child support in arrears. It is a vested property right which the court is required to adjudicate. Guarino v. Guarino, 431 So.2d 189 (Fla. 2d DCA), pet. for rev. dism., 441 So.2d 632 (Fla.1983); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977); Feder v. Feder, 291 So.2d 641 (Fla. 3d DCA 1974). Nor should this parent be deprived of the right to seek enforcement of her vested property right in the readily available forum of the dissolution proceeding because the child also ostensibly has standing to sue for enforcement of his court-ordered support obligation. See Massey v. Massey, 443 So.2d at 295, n. 2 (noting the “evanescent nature of the supposed alternative remedy.. .an action by the [adult] children themselves_”).

As to the propriety vel non of imposing upon appellee the requested sanction of contempt on remand, it appears that since the trial court had not previously adjudicated appellee in contempt prior to the child’s attaining age eighteen, this sanction is not now authorized. Compare Catches v. Catches, 409 So.2d at 1200 (authorizing use of trial court’s contempt authority after child had reached majority where husband had been found in contempt while child was still a minor), with Smith v. Morgan, 379 So.2d 1052 (Fla. 1st DCA 1980) (no civil contempt power to collect arrearages after child has attained majority), and Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970), cert. denied, 247 So.2d 437 (Fla.1971) (court lacked jurisdiction to punish father for contempt for failure to provide support after children attained majority).

Finally, we reject appellee’s argument that the doctrine of laches should operate to bar the appellant’s petition for adjudication of child support arrearages. There has been no prejudice or disadvantage caused to appellee by the delay. See Reed v. Fain, 145 So.2d 858, 868 (Fla.1962); Stephenson v. Stephenson, 52 So.2d 684 (Fla.1951); Pollock v. T & M Investments, Inc., 420 So.2d 99, 102 (Fla. 3d DCA 1982); Jimenez v. Jimenez, 309 So.2d 38 (Fla. 3d DCA 1975). Moreover, appellee is appar-. ently guilty of “unclean hands” in this matter for having failed to comply with his court-ordered child support obligation or to seek modification thereof, and therefore, is not entitled to assert the defense of laches against the appellant’s petition. See Williamson v. Williamson, 367 So.2d 1016, 1018 (Fla.1979), and cases cited therein; Pollock v. T & M Investments, Inc., 420 So.2d at 102; Pennington v. Pennington, 390 So.2d 809 (Fla. 5th DCA 1980).

For these reasons, the order of the trial court under review is reversed, except insofar as it declines to find the appellee in contempt, and the cause is remanded for an adjudication of the child support arrearag-es claimed by appellant.

Reversed and remanded.

      . "Limbo" dissolution decrees are those rendered prior to July 1, 1973 [effective date of § 743.07, Fla.Stat. (1973) ] which require child support payments until a child attains twenty-one years or his age of “majority." Cronebaugh v. Van Dyke, 415 So.2d at 743, n. 1 (Sharp, J., dissenting).

        . As did Judge Sharp in her Cronebaugh dissent, we also distinguish Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978), a case in which the former wife sought support for college-age children when there had been no agreement, and the final judgment of dissolution did not obligate the former husband to provide such support. In Kern, the trial court’s power to review or modify its order relating to the maintenance of children of the marriage was held to be limited to the period of time in which a parent owes a duty of support to his child. Once a normal child reached majority, the parent who had legal custody of the child had no standing to seek continued support monies for that child. Sub judice, appellant does not seek continued support for the adult child, but seeks only to enforce the former husband’s obligation, under the final judgment, to support the child until her majority, by collecting arrearages which accrued prior to the child’s majority.

      . We emphasize, however, that our disposition merely assures the appellant will have her petition heard. She will still have to prove the amount of the claimed arrearages, which has not previously been determined by the trial court.


text:
    Steven J. KROUSE, Personal Representative of the Estate of Jeffrey B. Krouse, a minor, deceased, Appellant, v. AVIS RENT-A-CAR SYSTEM, INC., etc., David Signore, Nancy Signore, et al., Appellees.
    No. 84-925.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Rosenblatt, Arnowitz & Roth and Domingo Rodriguez, Miami, for appellant.
    George, Hartz, Burt & Lundeen and Michael I. Goldberg, Dube & Wright and Richard Gale, Miami, for appellees:
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

After carefully considering the record and briefs in this wrongful death case, we conclude that the trial court committed no error in (1) entering the final summary judgment under review in favor of the defendant David Signore and the defendant Avis Rent-A-Car System, Inc., and (2) subsequently denying the plaintiff Steven J. Krouse’s petition for rehearing. We reach this conclusion for two reasons.

First, we are convinced that only speculative, rather than genuine, issues of material fact are raised by this record. The evidence is undisputed that on August 24, 1980, the defendant David Signore was operating a motor vehicle, which he had rented from the defendant Avis Rent-A-Car System, Inc.; he was driving within the speed limit in his lane of travel on state road 60 in Polk County, Florida. A motor vehicle, in which the plaintiff’s decedent was riding as a passenger, was traveling in the opposite direction in the adjoining lane, on the same highway. The plaintiff’s vehicle, without dispute, suddenly swerved into the lane of travel of the defendant David Signore, resulting almost immediately in the fatal automobile collision herein.

The plaintiff’s decedent argues that genuine issues of material fact are raised as to whether the defendant David Signore had sufficient time to avoid the accident in question. The driver of the motor vehicle who was traveling behind the Signore vehicle estimates that it took, at most, from five to ten seconds for the plaintiff vehicle to show signs of losing control and then come across to the wrong side of the road. Even if correct, it is pure speculation to conclude that the Signore vehicle could have done anything during that time to avoid the collision. The arguments made by the plaintiffs decedent that perhaps the Signore vehicle was traveling too fast under existing weather conditions and that perhaps he might have had enough time to avoid the accident had he not been traveling at that rate of speed are also pure conjecture. The Signore vehicle was traveling within the speed limit in its lane of travel and was suddenly struck nearly head-on by a car coming in the opposite direction; nothing in this record remotely suggests that Signore could have done anything to avoid this accident. See Rawls v. Zeigler, 107 So.2d 601, 608 (Fla.1958); Johnson v. Gulf Life Insurance Co., 429 So.2d 744, 746 (Fla. 3d DCA 1983); Colon v. Lara, 389 So.2d 1070, 1072 (Fla. 3d DCA 1980); compare Lee v. Dunnigan, 384 So.2d 165, 166 (Fla. 2d DCA 1980) (positive testimony of twenty to thirty seconds reaction time under similar conditions raises a genuine issue of fact).

Second, we think the trial court was well within its discretion in denying the plaintiffs motion for rehearing and in rejecting the affidavit filed in connection therewith. The affidavit was untimely filed and was, in any event, entirely speculative. The trial court therefore committed no error in denying the petition for rehearing. See Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla.1982), adopting, 381 So.2d 1164 (Fla. 5th DCA 1980); Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558, 559 (Fla. 3d DCA 1983); Morgan v. Continental Casualty Co., 382 So.2d 351, 353 (Fla. 3d DCA 1980); Gulewicz v. Cziesla, 366 So.2d 507, 508 (Fla. 2d DCA 1979). The final summary judgment under review is in all respects

Affirmed.


text:
    RIVER PINES, INC., Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, Appellee.
    No. 84-1597.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Michael Lechtman, North Miami Beach, for appellant.

      Thomas L. Barnhart, Tallahassee, for ap-pellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

We reverse the order of respondents which fined the petitioner $20,000.00 and ordered certain other actions pertaining to purchasers of lots in a subdivision because, upon being served with a rule to show cause, the petitioner put in issue, by an immediate written response, the question of whether or not the subdivision was exempt from regulation, therefore it was entitled to a formal hearing. Best Western Tivoli Inn v. Department of Transportation, 448 So.2d 1052 (Fla. 1st DCA 1984); Garrido v. State, Department of Health and Rehabilitative Services, 386 So.2d 811 (Fla. 1st DCA 1980); Kuster Enterprises, Inc. v. State Department of Transportation, 347 So.2d 1092 (Fla. 1st DCA 1977); Section 120.68(6) Florida Statutes (1983).

Reversed and remanded for a hearing.

      . The petitioner was entitled to a hearing prior to the entry of the final order entered some 312 days after receipt of the written response from the petitioner. The final order also failed to contain necessary findings of fact to support the penal assessment and, in all probability, the failure to render the order within 90 days was prejudicial.


author: JORGENSON, Judge.

text:
    The STATE of Florida, Petitioner, v. NATIONAL RESEARCH SYSTEMS, INC., Respondent.
    No. 84-2000.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for petitioner.
    Entin, Schwartz, Dion & Sclafani and Thomas Sclafani, North Miami Beach, for respondent.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   JORGENSON, Judge.

The State of Florida seeks review of an order quashing a subpoena duces tecum issued pursuant to section 27.04, Florida Statutes (1988), which required National Research Systems, Inc. to produce certain documents. We have jurisdiction, article 5, section 4(b)(3), Florida Constitution (1968), and Florida Rule of Appellate Procedure 9.030(b)(2)(A) and for the reasons which follow, quash the order of the trial court.

The Dade County State Attorney’s Office, acting on information received from the authorities in the state of New York regarding an alleged embezzlement, initiated an investigation to determine whether proceeds of an alleged embezzlement had been transferred to Dade County, Florida. National Research Systems filed a motion to quash the investigative subpoena and as grounds therefore alleged:

(a) that the State Attorney is not conducting a criminal investigation, but, rather, is assisting the New York State Insurance Department in obtaining documents which it has no jurisdiction to acquire; and (b) that because of the background of this case giving rise to the issuance of the above-referenced subpoena duces tecum, it would be unreasonable and oppressive for the petitioner to comply with it.

At the hearing on the motion to quash, the trial court received no evidence from either the state attorney’s office or National Research Systems, Inc. During the hearing, the state made the following proffer:

MR. KERSTEIN: The only issues raised by defense counsel in his particular motion are, one whether SAO or the State Attorney’s Office is conducting an investigation, or whether this is merely a subterfuge to obtain records for an out of state agency, and the State in its response has addressed that particular issue.
We have reasonable basis to believe that $350,000 over a three year period was forwarded; to the defendant here in Dade County; that there was an embezzlement that occurred in this; that there are funds here, the funds which were shipped here, and may well be the proceeds of such embezzlement and such theft, and under those circumstances, there is strong possibility of criminal violations here in Dade County.
The subpoena has been validly issued under the authority of the State Attorney’s Office. The State Attorney’s Office is conducting an investigation.

Following the foregoing proffer, the state and the court discussed whether the state was going to share the information received with the Division of Insurance Fraud, Department of Insurance, State of Florida, and the New York authorities. Upon learning .that the state would in fact share the information received, the trial court granted National Research Systems, Inc.’s motion to quash on the stated basis that the subpoena duces tecum involved here was issued at the behest and direction of New York authorities and that there was no legitimate investigation being conducted by the state attorney’s office with respect to that subpoena.

There is simply no evidence to support the trial court’s conclusion in the face of the state’s proffer. The order to quash, therefore, is a departure from the essential requirements of law. See Imparato v. Spicola, 238 So.2d 503 (Fla. 2d DCA 1970). Once on notice of the possibility of criminal activity within his jurisdiction, the state attorney has the authority to investigate, section 27.04, Florida Statutes (1983); indeed, it is his duty. See State v. Michell, 188 So.2d 684, 687 (Fla. 4th DCA), cert. discharged, 192 So.2d 281 (Fla.1966). The fact that the state may subsequently share portions of its investigative findings with other agencies or other jurisdictions is no basis to quash an investigative subpoena. Imparato, 238 So.2d at 506.

Accordingly, certiorari is granted and the order of the trial court is quashed.


author: WESSEL, JOHN D., Associate Judge.

text:
    Robert ARNER, Appellant, v. STATE of Florida, Appellee.
    No. 81-239.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1984.
    James O. Druker and Paula Schwartz Frome, Mineóla, N.Y., for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   WESSEL, JOHN D., Associate Judge.

Robert Arner, appellant, appeals from a judgment of conviction and sentence for life without parole for 25 years for the first degree murder of his wife, Elinor Arner. Appellant raises several issues as to evi-dentiary rulings by the trial court.

On January 25, 1978, the victim, Elinor Arner, was found languishing from a hammer beating from which she ultimately died on March 11, 1978. It is unnecessary to detail the gruesome and brutal nature of the injuries sustained by the victim.

The testimony at the trial included the appellant’s girl friend, Valerie Wade, whose testimony appellant claims was perjury. Wade had given ten statements prior to the trial, six of which were basically exculpatory and four were basically incul-patory to the appellant.

Appellant contends that at the trial, the prior taped statement and affidavit of the witness Wade were excluded during the examination of the appellant’s first lawyer when the appellant sought to have the taped statement played before the jury.

The State called Valerie Wade as a witness. On direct examination, she explained that she had recanted her Grand Jury testimony so that the appellant could visit a sick grandparent in New York and be free for a holiday. Extensive cross-examination of this witness was conducted over a period of several days. The witness admitted that she had told deliberate and intentional lies under oath, and confessed to being a perjurer. During this cross-examination, appellant’s counsel took this witness through each of her sworn statements made to the appellant’s lawyer in his office and an affidavit dated September 26,1978. In Wade’s testimony at appellant’s bond hearing on September 27, 1978, she recanted her Grand Jury testimony against the appellant. Inconsistencies were apparent.

During the cross-examination, appellant’s counsel asked the witness Wade to identify the affidavit she executed for the appellant’s former counsel, which recanted her Grand Jury testimony against the appellant. She was then questioned on cross-examination about the tape recording of her recanting statements. During this same cross-examination Wade identified the voices of the tape as her voice and as that of the appellant’s former counsel, Leonard Robbins. Appellant’s counsel made no attempt, at this time, to introduce the tape during the cross-examination of Valerie Wade, the witness. During the appellant’s case, the prior lawyer, Leonard Robbins, was called as a witness to testify. Appellant sought, during his examination, to introduce the affidavit and taped statement made by Valerie Wade as substantive evidence.

The trial court denied the admissibility of the tape and the affidavit, and the appellant claims this act as reversible error in the trial court. It is obvious the appellant had the opportunity to introduce the tape in its entirety when Wade was on the stand during her cross-examination, but contended that he was allowed to play it before the jury in the defense’s case to show the jury how it reflected the pressure on Wade at the time this tape was being made.

Under the evidence code in effect at the time of the appellant’s trial, a prior material inconsistent statement could only be introduced if the witness denied making the statement or failed to remember it. Wingate v. New Deal Cab Co., 217 So.2d 612 (Fla. 1st DCA 1969). A prior inconsistent statement could not be put into evidence if the trial court permitted examination on the prior statement and the witness admitted making the prior inconsistent statement. Dean v. State, 325 So.2d 14, 19-20 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976). However, prior inconsistent statements are now admissible as substantive evidence if given under oath in a prior judicial proceeding. Moore v. State, 452 So.2d 559 (Fla.1984). However, even under the criteria in Moore, the statement would not be admissible inasmuch as the proceeding in which the tape and affidavit were taken was not a judicial proceeding; secondly, the witness was available and did testify; and third, the evidence would merely be cumulative. Accordingly, we find no error in the trial court’s ruling on the admissibility of the tape and affidavit of Valerie Wade during the appellant’s case.

Two other evidentiary matters which the court raised on appeal concerned the issue of the evaluation of the estate of the decedent/victim. After reviewing the evidence, this court concludes that there was sufficient evidence of the victim’s assets and income from property at the time of her death to create a jury question on the estate evaluation and the appellant’s possible financial motive for murder.

Finally, the trial court admitted evidence concerning wet clothes found in the washer at the appellant’s residence two days after the attack on his victim/wife, and the court finds no error in tho trial court’s use of its broad discretion in admitting evidence that may be considered relevant in conjunction with other evidence in the case, New v. State, 211 So.2d 35, 36 (Fla. 2d DCA 1968).

This court has reviewed all of the numerous alleged errors directed in this cause, and finds no error. Accordingly, the judgment of conviction and sentence is hereby

AFFIRMED.

ANSTEAD, C.J., and HURLEY, J., concur.

      . Under the Florida Evidence Code which is now consistent with the Federal Evidence Code, Section 90.801(2)(a), holds that such prior inconsistent statements of a witness at a criminal trial given under oath in a judicial proceeding are excluded from the hearsay definition and may be admitted not only for impeachment purposes but also as substantive evidence on material issues of fact.


author: FRANK D. UPCHURCH, Jr., Judge. COWART, Judge,

text:
    Gary Wayne SCHAFER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1148.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Gary Wayne Schafer, defendant below, appeals contending his right to self-representation was violated.

The defendant first requested permission to represent himself at his arraignment. The defendant stated that he wanted to conduct his own defense due to what he perceived as the public defender’s inattention to his case. The trial court denied defendant’s motion, stating that it was not satisfied that there was a conflict that could not be reconciled.

At pretrial proceedings, defendant again announced his desire to represent himself. Defendant’s request was made in conjunction with his general complaints about the delay in bringing his case to trial. Although the trial judge listened patiently to defendant’s complaints, he made no response to defendant’s request for self-representation.

After defendant’s trial had begun and the state had examined its first witness, the public defender informed the court that defendant desired to conduct his own defense. The court responded that defendant would be allowed to address the court, but would not be allowed to address the jury, and that it was the public defender’s responsibility to conduct the case.

A defendant has a constitutional right to proceed pro se when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, when an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). To insure that the decision is “knowingly and intelligently” made, the trial court must make an inquiry on the record to demonstrate that the defendant fully understands and appreciates the seriousness of the charges and is capable of representing himself. Smith v. State, 444 So.2d 542 (Fla. 1st DCA 1984); Watts v. State, 434 So.2d 23 (Fla. 3d DCA 1983); Mansfield v. State, 430 So.2d 586 (Fla. 4th DCA 1983); Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983); Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981).

Here the defendant clearly asserted his demand to proceed to trial without counsel. It was incumbent upon the trial court to make adequate inquiry to determine whether the defendant was knowingly and intelligently waiving his constitutional right to appointed counsel. Since no inquiry was made and the defendant was forced to proceed to trial with counsel he deemed ineffective, we reverse and remand for a new trial.

REVERSED and REMANDED.

ORFINGER, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Before arraignment in this case the defendant in writing exercised his constitutional right to counsel and swore “... I ... desire the assistance of counsel.” Accordingly counsel was appointed. Becoming displeased with the quality of the service of the public defender’s office the defendant later desired to represent himself. The trial judge in this case did listen long and patiently to the defendant’s complaints but he did not discharge defendant’s appointed counsel. The trial judge had an adequate opportunity and basis upon which to conclude that the defendant’s personal problems about being represented by his appointed counsel did not amount to an intentional and intelligent waiver of the previously exercised right to counsel. From a defendant’s appearance, attitude, speech and statements it does not take an experienced trial judge long to ascertain and appraise a defendant’s age, education, experience and mental and emotional condition and the true basis of his complaints and to make a decision as to his capacity to act intelligently and as to whether he is acting knowledgeably and intentionally with respect to any particular matter including the discharge of his appointed counsel.

A defendant has a constitutional right to the assistance of counsel. If the trial judge discharges appointed counsel too readily he errs, see, e.g., Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981), and if he is too reluctant, he errs. The life of a trial judge is not an easy one.

Because the assistance of counsel is of such obvious benefit to one accused of crime, its denial is properly presumed to be harmful and prejudicial and, hence, reversible. But for this very reason, the assistance of unwanted counsel should not be presumed to be harmful or prejudicial and, accordingly, the harmless error statutes (§§ 59.041 and 924.33, Fla.Stat.) should be applied even when there is no factual question, as here, and there is a clear violation of the right to self-representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), does not hold that a defendant who has elected to exercise his right to have counsel may at will change his mind at any time nor does that decision prohibit the application of harmless error concepts and statutes. This case should be affirmed.


author: SHARP, Judge. COWART, Judge,

text:
    Edward Leon CAMPS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES on Behalf of Carla Faye JAMERSON, Appellee.
    No. 83-1572.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.

      John S. Lynch, Ocala, for appellant.
    Geraldyne H. Carlton of Carlton & Carlton, P.A., Lakeland, for appellee.
   SHARP, Judge.

Camps appeals from an order dated September 28,1983, which required him to pay $1,184.00, representing past child support, to the Department of Health and Rehabilitative Services (HRS). He argues that this judgment is barred by the doctrines of merger or res judicata, because HRS obtained a prior judgment in the same proceeding against him, dated March 11, 1982, which failed to include past support. We agree and reverse.

HRS paid public assistance for the benefit of Carla Faye Jamerson from the time of her birth. Pursuant to section 409.2561, Florida Statutes (1988), HRS filed suit against Camps to establish that he was Carla’s father, and to obtain reimbursement of public moneys expended by it on behalf of Carla. The March 11, 1982 judgment declared Camps was Carla’s father and it required him to pay $60.00 per month for her support, beginning on April 2, 1982. Months later, and purportedly filed in the “same proceeding,” HRS filed a motion for repayment of public assistance monies it had paid for Carla from the date of her birth through the time it filed the paternity suit.

These proceedings were brought pursuant to section 409.2561, Florida Statutes (1983), which provides that any payment of public assistance money for the benefit of a dependent child creates an obligation owing to HRS by the responsible parent. It becomes, in effect, a subrogee to the child’s rights (or its parent or guardian) to recover support.

Section 409.2561(1) provides in part; Any payment of public assistance money made to, or for the benefit of, any dependent child creates an obligation in an amount equal to the amount of public assistance so paid. If there has been a prior court order or final judgment of dissolution of marriage establishing an obligation of support, the obligation is limited to the amount provided by such court order or decree. The responsible parent must voluntarily discharge the obligation pursuant to the terms of the court order or decree.... If there is no prior court order establishing an obligation of support, the court shall establish the liability of the responsible parent, if any, for reimbursement of public assistance moneys paid.

Camps argues that the statute limits HRS from obtaining an award for past child support because none was provided for in the prior March 11th order. Had the March 11th order set a different sum for past support, we would agree. However, since it was silent on that item of support, we do not think the statute is applicable as a limitation on amount.

However, we think HRS is barred by the doctrines of res judicata and merger. See RESTATEMENT (SECOND) OF JUDGMENTS § 18 (1982). Both proceedings were brought by HRS as a subrogee to recover child support for Carla. It was a real party in interest in both, given the fact that it had paid public assistance for Carla during the continuum of times involved in both suits. To establish its standing to bring the first action, it was incumbent upon HRS to prove prior payments it had made. Therefore, the two actions involve the same parties and the same cause of action or thing sued for.

In the first suit when paternity was determined and a future support award was obtained, HRS clearly could have then sought to be reimbursed for support it had previously paid for this child from birth to the time of that suit. However, HRS did not ask for past support in that suit, but simply asked for and obtained a future support award.

The result in this case should be consistent with other domestic relations litigation. A person to whom support or alimony is owed by another, is allowed to bring but one suit to recover all of the funds owing at the time the suit is filed.

Accordingly, the order appealed is

REVERSED.

COBB, C.J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting.

This case involves a cause of action to establish paternity and to determine the natural father’s future child support obligation as compared to a second, separate cause of action by a state agency against the natural father for restitution for an accumulation of public monies expended for necessities for the child before the father’s paternity was established.

The Department of Health and Rehabilitative Services of the State of Florida (HRS) brought a paternity action on behalf of Carla Faye Jamerson, the mother of a dependent child and a recipient of public assistance monies, against the appellant, Edward Leon Camps, resulting in an adjudication that appellant was the natural father of the child and owed it a duty of future support that was set in the amount of $60 per month. Thereafter, in the same cause, HRS filed a motion requesting the court to further adjudicate and order the father to repay HRS the sum of $1,184 for public assistance monies expended for the benefit of the child from the time of its birth until the establishment of the father’s paternity. The father filed a motion to dismiss, an answer and affirmative defenses to the motion. From an order adjudicating that the father was indebted to HRS for $1,184 and directing repayment of that sum at the rate of $20 per month, the father brings this appeal.

The father argues that HRS is prohibited from recovering the sum of $1,184 by section 409.2561(1), Florida Statutes, and doctrines of res judicata and merger.

Section 409.2561(1), Florida Statutes, reads in part:

Any payment of public assistance money made to, or for the benefit of, any dependent child creates an obligation in an amount equal to the amount of public assistance so paid. If there has been a prior court order or final judgment of dissolution of marriage establishing an obligation of support, the obligation is limited to the amount provided by such court order or decree. The responsible parent must voluntarily discharge the obligation pursuant to the terms of the court order or decree.... If there is no prior court order establishing an obligation of support, the court shall establish the liability of the responsible parent, if any, for reimbursement of public assistance moneys paid.

The father reads the statute to mean that the first order establishing paternity and the father’s obligation for future child support constitutes a limitation on the right of HRS to obtain reimbursement from the father for public assistance money paid for the benefit of the child in the past and prior to the adjudication of paternity and the judicial establishment of the amount of the father’s obligation to pay future child support. This construction of the statute is not correct. Only if the public assistance monies are paid after the obligor’s obligation for future child support has previously been established and limited in dollar amount per unit of time does the second sentence constitute any limitation on the obligor’s reimbursement obligation. That limitation was intended to relate to support orders requiring the parent to make future regular periodic child support payments, as contemplated by section 409.2564(1) and (2), Florida Statutes, for reimbursement for ongoing welfare payments; that limitation does not relate to a cause of action for restitution for an accumulated, past due, lump sum obligation which is merely being repaid in periodic payments, as is involved in this case.

During the time that the $1,184 in public assistance monies was being paid to discharge the natural father’s responsibility there was no prior court order or final judgment of dissolution of marriage establishing an obligation of support. Nevertheless, once the paternity of the father is established, he is liable to reimburse for monies previously paid in discharge of his parental obligation as well as being liable for continuing, regular, periodic payments for needed future child support. The inchoate obligation and responsibility of a natural father for the necessities of his child exists from the time the child is conceived. A paternity action merely adjudicates and judicially establishes the relationship between the parent and the child which is but one part of the factual basis for the adjudication necessary to legally establish and enforce the obligation of support which has existed from conception.

The first cause of action to determine paternity and future child support was separate and distinctly different from the second restitutionary cause of action for reimbursement for public assistance money previously paid to, or for the benefit of, the dependent child. The fact that both causes of action relate to the parent-child relationship between the obligor (parent) and the dependent child does not make the two causes of action the same. In addition to the fact of paternity the first cause of action required a determination as to the continuing, future needs of the child and the ability of the father to pay future child support. In that cause of action the child is the real party in interest, whoever may bring the action on behalf of the child. In addition to the fact of paternity the second cause of action required proof of the fact that public assistance monies had previously been paid to, or expended for the benefit of, a dependent child. This second cause of action is for restitution and is in favor of any third party who has provided the child necessaries for which a parent is legally responsible. As to child support provided by public assistance money this second legal obligation for restitution has been codified in section 409.2561(1), Florida Statutes, and the basic legal obligation there recognized can be the basis for many, recurring separate actions as the essential operative facts occur or unfold. See section 409.-2564(1), Florida Statutes, and Mears v. Luterman, 453 So.2d 499 (Fla. 3d DCA 1984). Each of the two causes of action involved in this case is separate and distinct from the other because each has a different real party in interest and each requires proof of facts not required by the other. There was no improper splitting of one cause of action as the father argues in this case, no merger of the two causes of action, and no res judicata problem because there was no fact adjudicated in the first cause of action in favor of the father that was inconsistent with the factual basis required for adjudication of the second cause of action against the father. It is merely fortuitous that the governmental agency, HRS, bringing, on behalf of the child, the first cause of action for future child support happens to be the real party in’interest in the second cause of action for restitution and reimbursement for support previously provided the child. The two causes of action could, and perhaps should, have been filed in two actions.

The second cause of action for reimbursement was improperly initiated by a motion rather than a pleading. However, the father did not object to this pleading irregularity but pleaded to it and joined issue by filing an answer and affirmative defenses to the motion.

This case should be affirmed and the father required to reimburse the public for the public monies used to pay the father’s support obligation to his child.

      . Section 409.2561 consists of three interrelated provisions: subparagraph (1) directs that HRS obtain, from those responsible parents who have the ability to pay, reimbursement for public assistance monies expended to benefit dependent children, while, at the same time, giving priority to securing continuing reasonable child support from the reasonable parent; sub-paragraph (2) specifies that any judicial determination of the responsible parent’s liability to repay HRS be based on the parent’s ability to pay; and subparagraph (3) provides that the acceptance of public assistance effects an assignment to the state of the recipient’s interest in child support in the amount of public assistance paid and allows the state to act for the recipient in all matters relating to child support, including the pursuit of civil remedies to enforce the support obligation. See Lamm v. Chapman, 413 So.2d 749 (Fla.1982).

      . §§ 409.2561(3) & (4), Fla.Stat. (1983).

      . The law does not permit the owner of a single or entire cause of action to divide or split that cause of action so as to make it the subject of several actions, without the consent of the defendant. See 1 Fla.Jur.2d Actions, § 56 (1977). See also Mims v. Reid, 98 So.2d 498 (Fla. 1957); Brown v. Brown, 338 So.2d 916 (Fla. 3d DCA 1976); Elkins v. Elkins, 287 So.2d 119 (Fla. 3d DCA 1973).

      . See Cronebaugh v. Van Dyke, 415 So.2d 738, 741, notes 5, 6 and 7 (Fla. 5th DCA 1982); Dept of HRS v. Walker, 411 So.2d 347 (Fla. 2d DCA 1982).

      . Cf. Dept. of HRS v. King, 390 So.2d 1224 (Fla. 1st DCA 1980) (child's present support needs must be met before HRS may be reimbursed).


text:
    Jesus Antonio CABO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1201.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck; Bonnie Belle Phillips, del Corral, Miami, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen. for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment of conviction and sentence for the felony of trafficking in methaqualone, a contraband drug [§ 893.135(l)(e), Fla.Stat.(1983) ], is affirmed upon a holding that the trial court properly denied a defense request for a jury charge on attempted possession of methaqualone because no evidence was presented at trial to support such an attempt. See Fla.R.Crim.P. 3.510.

The final judgment of conviction and sentence for the felony of unlawful possession of methaqualone [§ 893.13(l)(e), Fla.Stat.(1983)] is reversed upon a holding that this crime is a necessarily included offense in the above-stated felony of trafficking in methaqualone [§ 893.135(l)(e), Fla.Stat.(1983) ] and consequently a conviction and sentence thereon was barred by the defendant’s right against double jeopardy. Bell v. State, 437 So.2d 1057 (Fla.1983); Camcio v. State, 448 So.2d 1251 (Fla. 3d DCA 1984).

The judgment of conviction and sentence for trafficking in methaqualone is affirmed; the judgment of conviction and sentence for unlawful possession of metha-qualone is reversed and the cause is remanded to the trial court with directions to discharge the defendant as to this judgment and sentence only.

Affirmed in part; reversed in part.


text:
    Jefferson LANE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1414.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    Bennett H. Brummer, Public Defender, and Henry H. Harnage, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.

      Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Jefferson Lane appeals from his conviction and sentence as a principal in two counts of armed robbery. For reasons more fully stated below, we reverse.

Appellant raises two issues on appeal, both of which have merit. First, he argues that he was wrongfully excluded from the peremptory challenges portion of the jury selection process. Appellant was present during the voir dire but, due to the small size of the courtroom, the peremptory challenges were held in a hallway outside the courtroom in order to prevent the venire from overhearing the challenging. Appellant asked to be present but the corrections officer in charge of security for the courtroom refused because he did not have sufficient personnel to guard appellant. Appellant’s objection to this exclusion was overruled.

It is well settled that the challenging of jurors is one of the essential stages of a criminal trial where a defendant’s presence is required. Herzog v. State, 439 So.2d 1372 (Fla.1983); Francis v. State, 413 So.2d 1175 (Fla.1982); Walker v. State, 438 So.2d 969 (Fla. 2d DCA 1983); Rule 3.180(a)(4), Florida Rules of Criminal Procedure. Thus, appellant’s exclusion violated his constitutional right to be present at a stage where fundamental fairness might be thwarted by his absence. Francis v. State, 413 So.2d at 1177. Since there is nothing in the record to suggest that appellant waived this right, and since the other evidence presented was not so overwhelming, we cannot say that the constitutional error was harmless. Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).

Appellant also argues that the trial court erred in denying his motion for a mistrial after the prosecutor repeatedly made improper comments on appellant’s failure to call alibi witnesses when there was no alibi defense presented. Because the whole issue of alibi was raised by the state, we find that the prosecutor’s “straw man” argument and actual use of the word “alibi” may have led the jury to believe that appellant had the burden of proving his innocence, Bayshore v. State, 437 So.2d 198 (Fla. 3d DCA 1983); Dixon v. State, 430 So.2d 949 (Fla. 3d DCA), pet. for rev. denied, 440 So.2d 353 (Fla.1983); Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982), and was, therefore, prejudicial error.

Reversed and remanded for a new trial.


author: BASKIN, Judge.

text:
    Marvin SINGER, Appellant, v. FLORIDA PAVING COMPANY, INC., Appellee.
    No. 84-1251.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.

      Samek & Besser, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Paul T. Reid, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

Finding that Singer’s independent claim for damages states a cause of action within the jurisdiction of the circuit court, and that his claim is not barred by principles of res judicata, we reverse the trial court’s dismissal of Singer’s complaint.

Singer’s action was precipitated by Florida Paving Company’s failure to pave and drain Singer’s driveway properly. When Florida Paving Company completed its work, Singer paid only a portion of the sum due under his contract. As a result, Florida Paving Company brought an action in county court to foreclose its mechanic’s lien on the property and to recover damages for breach of contract. Singer filed a counterclaim for damages amounting to less than $1,500 based upon Florida Paving Company’s poor workmanship and damage to his property, but the counterclaim was dismissed as untimely filed. Singer then filed an action in circuit court alleging damages in excess of $5,000. Upon Singer’s motion, Florida Paving Company’s cause of action against Singer was transferred to circuit court to be heard in conjunction with Singer’s action against Florida Paving Company. Florida Paving Company responded to the action brought in circuit court by filing a motion to strike and dismiss Singer’s complaint. The court granted the motion and this appeal ensued.

We reject the argument by Florida Paving Company that the jurisdictional amount alleged in the complaint was subject to challenge because it did not allege a jurisdictional amount in excess of $5,000 “in good faith.” Richter Jewelry Co. v. Harrison, 147 Fla. 732, 733, 3 So.2d 387, 388 (1941). Although Florida Paving Company urges the correct test for determining jurisdiction, this case turns on the well-established principle that a trial court’s ruling on a motion to dismiss is confined to the allegations within the four corners of the complaint. The trial court is required to accept the allegations as true and may not speculate as to the ultimate facts to be proved during trial. Emile v. Florida Power & Light Co., 426 So.2d 1152 (Fla. 3d DCA 1983); Dunnell v. Malone & Hyde, Inc., 425 So.2d 646 (Fla. 3d DCA 1983). In addition, the complaint was not necessarily inherently false and should not have been striken as a sham. Jaruagua Enterprises, Inc. v. Bom, Inc., 339 So.2d 702 (Fla. 3d DCA 1976); Slatko v. Virgin, 328 So.2d 499 (Fla. 3d DCA 1976).

We also reject appellee’s contention that res judicata principles bar the filing of Singer’s independent claim in circuit court. A party who has failed to interpose a compulsory counterclaim in a lawsuit which remains pending may nevertheless file an independent action on the same claim. Cheezem Development Corp. v. Maddox Roof Service, Inc., 362 So.2d 99 (Fla. 2d DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979). Even though a counterclaim has been dismissed with prejudice, it may be refiled as an independent action while the initial lawsuit remains pending. See Travelers Express, Inc. v. Acosta, 397 So.2d 733 (Fla. 3d DCA 1981).

For these reasons, we reverse the trial court’s dismissal and remand for further proceedings.

       Although the order granting the motion to strike and dismiss the complaint did not specify that it was with prejudice, a dismissal other than for lack of jurisdiction or for improper venue or for lack of an indispensible party operates as an adjudication on the merits. Fla.R.Civ.P. 1.420(b).


text:
    Johnny WASHINGTON, Sr., etc., Appellant, v. FIREMAN’S FUND INSURANCE COMPANY and Fowler, White, Burnett, Hurley, Banick & Strickfoot, P.A., Appellees.
    No. 83-1816.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1984.
    Marcia E. Levine of Fazio Dawson & DiSalvo, Fort Lauderdale, for appellant.
    William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee Fowler, White, Burnett, Hurley, Banick & Strickfoot, P.A.
   PER CURIAM.

Appellant appeals from an order dismissing his complaint with prejudice on the grounds that an action for legal malpractice is not assignable. We affirm.

The assignability of a legal malpractice action is apparently a question of first impression in this state. A majority of jurisdictions prohibit the assignment of such actions because of the personal nature of legal services which involve highly confidential relationships. See Chaffee v. Smith, 98 Nev. 222, 645 P.2d 966 (1982); Clement v. Prestwich, 114 Ill.App.3d 479, 70 Ill.Dec. 161, 448 N.E.2d 1039 (1983); Joos v. Drillock, 127 Mich.App. 99, 338 N.W.2d 736 (1982); Christison v. Jones, 83 Ill.App.3d 334, 39 Ill.Dec. 560, 405 N.E.2d 8 (1980); Goodley v. Wank & Wank, Inc., 63 Cal.App.3d 389, 133 Cal.Rptr. 83 (1976). We agree with the majority. As a matter of public policy, we cannot permit enforcement of a legal malpractice action which has been transferred by assignment.

Accordingly, this court affirms the trial court’s dismissal of the complaint with prejudice.

LETTS, HERSEY and GLICKSTEIN, JJ., concur.


author: GOLDMAN, MURRAY, Associate Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. David FAMIGLETTI, Linda Famigletti, his wife, John Burch, Betty Jane Burch, “John Doe,” an unidentified person, et al., Appellees.
    No. 83-2638.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1984.
    John Donahoe, P.A., Fort Lauderdale and Jeanne Heyward, Miami, for appellant.
    Mark R. Boyd of Walsh, Theissen & Boyd, P.A., Fort Lauderdale, for appel-lees — John and Betty Burch.
   GOLDMAN, MURRAY, Associate Judge.

This is an appeal from a summary final judgment in an action to determine coverage under the personal injury protection provisions of an automobile insurance policy. The trial court determined that the Defendants (insureds) were entitled to benefits because they sustained injuries arising out of the ownership, maintenance or use of a motor vehicle. We reverse.

John and Betty Burch, the insureds, seek benefits for damages arising out of an incident which occurred on January 26, 1982.

The Burches and their neighbors, the Famiglettis, had been involved in several violent confrontations since April, 1981. These incidents included physical assaults and gunfire and resulted in threats being made by the Famiglettis against Mr. and Mrs. Burch.

On January 26, 1982, the Burches left their house together on their way to work. They entered their car, pulled out of the driveway, and proceeded down the street. Suddenly, David Famigletti stepped out from behind a tree to the edge of the road, machine gun in hand, and began his attempt to massacre his neighbors. The bullets flew, penetrating the car and striking the Burches, who somehow managed to survive.

The Burches made a claim for PIP benefits as a result of the assault, and Allstate sought a declaratory decree that its policy did not provide coverage. Each party moved for summary judgment, and the trial court entered summary final judgment in favor of the Burches and against Allstate, determining that the policy did in fact provide for coverage.

Section 627.736(1), Florida Statutes (1981), requires that automobile insurance policies provide personal injury protection benefits for any “loss sustained ... as a result of bodily injury, sickness, disease or death arising out of the ownership, maintenance or use of a motor vehicle.”

In Government Employees Insurance Company v. Novak, 453 So.2d 1116 (Fla.1984), a divided court interpreted this section to mean that there must be some nexus between the motor vehicle and the injury. The court there found a highly substantial connection between Ms. Novak’s use of her auto and the event which resulted in her death. The attack on her was motivated by a desire by the assailant to ride in or obtain possession of her car.

There is no such connection present in this case. Famigletti’s attack was not caused by nor did it arise out of the use of the automobile. The automobile was merely the situs of the attack. Reynolds v. Allstate Insurance Company, 400 So.2d 496 (Fla. 5th DCA 1981) (No PIP coverage for assault by intruder lurking in the back seat of the insured’s vehicle which was merely the fortuitous scene of the assault). See also Feltner v. Hartford Accident & Indemnity Company, 336 So.2d 142 (Fla. 2d DCA 1976); General Accident Fire & Life, etc., v. Appleton, 361 So.2d 830 (Fla. 4th DCA 1978), cert. denied 361 So.3d 830 (Fla.1978); Stonewall Insurance Co. v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979), cert. denied 385 So.2d 762 (Fla.1979); Florida Farm Bureau Insurance Co. v. Shaffer, 391 So.2d 216 (Fla. 4th DCA 1980), petition for review denied 402 So.2d 613 (Fla.1981).

In the recent case of Protective Casualty Insurance Company v. Hernandez, 450 So.2d 864 (Fla. 3rd D.C.A. 1984), the court reversed a determination that Plaintiff was entitled to PIP benefits. The Plaintiff, who had been apprehended by police officers for a traffic infraction, was forcibly removed from the vehicle, frisked and handcuffed with resulting injuries. The trial judge, there as here, relied on Novak v. Government Employees Insurance Company, 424 So.2d 178 (Fla. 4th DCA 1983). However, the appellate court found that the injuries did not arise out of the ownership, maintenance or use of the motor vehicle, and therefore there was no PIP coverage.

Mr. Famigletti intended to murder the Burches. The mere fact that he chose the site of their automobile for his attempted slaughter does not provide a sufficient nexus between the assault and the use of the car to warrant the imposition of PIP coverage.

Accordingly, the summary final judgment entered in favor of the defendants is reversed, with directions to enter final judgment in favor of the Plaintiff, Allstate Insurance Company.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    In the Interest of B.B., a child.
    No. 84-709.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1984.
    Rehearing Denied Jan. 4, 1985.
    Richard L. Jorandby, Public Defender and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on the authority of B.A.A. v. State, 356 So.2d 304 (Fla.1978); Patmore v. State, 383 So.2d 309 (Fla. 2d DCA 1980).

HURLEY, DELL and WALDEN, JJ., concur.


author: PER CURIAM. ERVIN, Chief Judge,

text:
    Susan JONES, a/k/a Janice Jones, Appellant, v. STATE of Florida, Appellee.
    No. AW-148.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    Rehearing Denied Dec. 18, 1984.
    Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of a sentence imposed, after a guilty plea, for the offense of felony petit theft. Appellant argues that her election to be sentenced pursuant to Fla.R.Crim.P. 3.701 is vitiated by the court’s failure to ascertain whether she was aware that she would not be eligible for parole. We conclude that the court is not required to make such an inquiry and we therefore affirm the sentence imposed.

Appellant was charged with the commission of a felony petit theft in September 1983 and entered a guilty plea accompanied by an express election to be sentenced pursuant to the provisions of Fla.R.Crim.P. 3.701. The state recommended that the penalty imposed be in accord with the presumptive guidelines sentence, and appellant indicated that her plea had been entered in return for this recommendation. The court made an extensive inquiry into the voluntariness of appellant’s plea and, after informing appellant that she was foregoing various specific constitutional rights, determined that the plea was freely entered with a “full understanding” of both the nature of the plea and its consequences.

The court also informed appellant that it was bound by neither the presumptive guidelines sentence nor the state’s recommendation with regard thereto. The court did not inform appellant as to her ineligibility for parole; appellant asserts that such failure vitiates her election to be sentenced pursuant to Fla.R.Crim.P. 3.701. However, application of Rule 3.701 requires only that appellant “affirmatively selects” to be sentenced pursuant to the rule. See § 921.-001(4)(a), Florida Statutes. Such affirmative selection does not require any advisement by the court as to ineligibility for parole. See Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984); also see Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984).

Unlike Moore, the present case involves a negotiated plea. It is well established that the voluntariness of a guilty plea is dependent upon an awareness of the consequences thereof.- See, e.g., Brady v. U.S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Thus, a defendant must be aware of the direct sentencing consequences which attend a plea. See State v. Green, 421 So.2d 508 (Fla.1982). However, appellant does not challenge the validity of her guilty plea, but seeks only to have her sentence vacated so that she might reconsider whether to select the application of Fla.R.Crim.P. 3.701. Furthermore, appellant’s ineligibility for parole is not a consequence which directly attends the plea itself; rather, it is a consequence which attends appellant’s election to be sentenced pursuant to Rule 3.701. And appellant’s election to be sentenced pursuant to Rule 3.701 is not impacted by the absence of a showing that appellant was aware of her ineligibility for parole, since such election requires only an affirmative selection without any requirement that the court advise a defendant regarding parole ineligibility. See Moore, supra.

Accordingly, the sentence appealed is affirmed.

BOOTH and WENTWORTH, JJ., concur.

ERVIN, C.J., dissents with written opinion.

ERVIN, Chief Judge,

dissenting.

' I respectfully dissent. • Notwithstanding that appellant was not advised of the consequences of selecting guideline sentencing, the majority affirms, relying upon this court’s opinion in Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), holding that because the rule and legislation authorizing the guidelines require only a showing that a defendant “affirmatively select” guideline sentencing, there is no necessity for such selection to be equatable with the term “knowingly and intelligently.” I would feel bound by the Moore holding if the dispositive facts in the instant case were the same as those stated in Moore. Unlike the case at bar, Moore involved a situation in which the defendant’s selection of guideline sentencing was not made part of a plea bargain agreement. Rather, it occurred after the rendition of a jury verdict which had found Moore guilty of armed robbery. Moore, then, was sentenced with none of the strictures imposed upon trial judges following a tender of a plea of guilt. See specifically Florida Rules of Criminal Procedure 3.170(j), placing on the trial court the responsibility of determining that the circumstances surrounding the plea reflect a full understanding of its significance, and 3.172, regarding the factors which must be stated in the record disclosing the voluntariness of the plea. These rules generally incorporate the requirements of Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279 (1969), holding that it is error for a “trial judge to accept ... [a] guilty plea without an affirmative showing that it was intelligent and voluntary.” A guilty plea — unlike an affirmative selection to be sentenced following trial — involves the waiver of three important constitutional rights: (1) the privilege against compulsory self-incrimination; (2) the right to trial • by jury; and (3) the right to confront one’s accusers. 395 U.S. at 243, 23 L.Ed.2d at 279. Indeed, as stated in Harris v. State, 438 So.2d 787, 797 (Fla.1983), for a plea to be effective, “there must be an express waiver of the right ... by the defendant, and the record must reflect that it was knowingly and intelligently made. ” (Emphasis in original.) This is a restatement of the rule applied in Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760 (1970), holding that in order for a plea to be voluntary, it must be made by one fully aware of the consequences. Moreover, waiver of constitutional rights cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962).

In my judgment, because the record fails to reveal the existence of an express waiver of the defendant’s right to a proper consideration of parole, the statute and the rule, in their application, not facially, must be said to violate constitutional prohibitions against ex post facto laws. A violation of the ex post facto constitutional provision occurs when a law has retrospective effect, i.e., it applies to events occurring before its enactment, and it disadvantages the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981). Weaver indicates that if a defendant is deprived of the right to qualify for parole, the deprivation may amount to an ex post facto violation, if applied retroactively. 450 U.S. at 34, 101 S.Ct. at 967. In the case on review, appellant, by selecting guideline sentencing, unknowingly waived a valuable constitutional right: the right to be sentenced under the law existing at the time the offense was committed.

Thus there should be no question that retroactive application of Section 921.001, Florida Statutes, or of Florida Rule of Criminal Procedure 3.701, could amount to an ex post facto violation if a defendant does not knowingly and intelligently waive his or her right to a proper consideration of parole.

A situation similar to that before us occurs when, as part of a plea bargain, the defendant is not informed by the court that it may retain jurisdiction over a portion of his sentence. See State v. Green, 421 So.2d 508, 509 (Fla.1982), holding that the imposition of retention is a significant consideration in the plea bargain arrangement which should be fully explained to a defendant before his plea is accepted, otherwise he would not be completely informed of the consequences of his plea. See also Shofner v. State, 433 So.2d 657 (Fla. 1st DCA 1983); Ward v. State, 433 So.2d 1221 (Fla. 3d DCA 1983); Brown v. State, 434 So.2d 21 (Fla. 2d DCA 1983).

Nor should there be any question that the defendant was disadvantaged by the sentence imposed. Admittedly the trial judge could have sentenced appellant outside the guidelines to a five-year term of imprisonment. See Sections 812.014(2)(c); 775.082(3)(d), Florida Statutes. Nevertheless, pursuant to the Objective Parole Guidelines Act, appellant would have been eligible for a parole interview within eight months of her sentence, to have a presumptive parole release date set within 90 days of that interview, and to have the release date reconsidered periodically. See Sections 947.16(l)(a), 947.172(2), and 947.174, Florida Statutes.

Although no specific objection was raised at the time the sentence was imposed as to the failure of the court to advise the appellant that by selecting guideline sentencing she would waive her right to parole, the point is appropriately preserved for appellate review. See State v. Rhoden, 448 So.2d 1013 (Fla.1984); Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984).

I would therefore reverse the sentence imposed with directions that the appellant be given the option either of withdrawing her plea of guilty or her selection of guideline sentencing.

      . The law is clear that while there is no absolute right to parole, there is nonetheless a right to a proper consideration of parole for most offenses. See Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974).

      . The offense with which appellant was charged occurred on September 3, 1983, whereas guideline sentencing became effective on October 1, 1983. See Ch. 83-87, § 5, Laws of Fla. The law permits defendants to make affirmative selections to be so sentenced as to all noncapital and life felonies which were committed before October 1, 1983. If no selection had been made, the defendant of course would have been sentenced outside the guidelines, thereby entitling her to consideration for parole.