author: BOYD, Chief Justice.

text:
    Thomas Raphael FASENMYER, Petitioner, v. STATE of Florida, Respondent.
    No. 63382.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Nov. 21, 1984.

      Quentin T. Till, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.
   BOYD, Chief Justice.

This cause is before the Court on petition for review of a decision of the District Court of Appeal, First District. The district court held that on remand after a successful appeal challenging only one of three criminal convictions, where the appellate relief clearly attached to only one of the three convictions, the trial court could resentence the offender not only on the offense affected by the appellate court’s ruling but also on the other offenses, including an offense the previously imposed sentence for which had been completely satisfied at the time of resentencing. Fasenmyer v. State, 425 So.2d 151 (Fla. 1st DCA 1983). Finding the jurisdictional ground of express and direct conflict with Troupe v. Rowe, 283 So.2d 857 (Fla.1973) and Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982), we accept the case for review. Art. V, § 3(b)(3), Fla. Const. The issue is whether, when an appellate court reduces the severity of a criminal conviction because of lack of evidence and orders resentencing accordingly, the trial court may change the sentences previously imposed on other convictions not affected by the appellate court judgment. Under the facts of this case as set out below, we hold that it may not.

In 1973, petitioner was convicted of three crimes and was sentenced for them as follows: (1) count one, breaking and entering with intent to commit a felony, while armed with a dangerous weapon, one hundred years; (2) count two, grand larceny, five years, consecutive to the sentence on count one; (3) count three, use of a firearm during the commission of a felony, fifteen years, consecutive to the sentences on counts one and two. On appeal, the judgment was affirmed without opinion. Fasenmyer v. State, 305 So.2d 99 (Fla. 1st DCA 1974), cert. denied, 315 So.2d 188 (Fla.1975). However, petitioner sought ha-beas corpus relief in federal district court and received a new trial. He was again convicted on all three counts, but on appeal the convictions were reversed for a new trial due to procedural error by the trial court which was held to have been damaging to the fairness of the trial. Fasenmyer v. State, 383 So.2d 706 (Fla. 1st DCA), review denied, 389 So.2d 1109 (Fla.1980).

Upon being tried a third time petitioner was again convicted of the same three offenses and was sentenced as follows: (1) on count one, breaking and entering while armed, fifty years with credit for seven years served; (2) on count two, grand larceny, five years, to be served concurrently with the sentence on count one; (3) on count three, use of a firearm while committing a felony, no sentence was imposed, on the ground that the offense in count three “merged” with the offense in count one. Petitioner again appealed his convictions, and this time the appellate court held that there was insufficient evidence to convict him of breaking and entering. The court held that the highest offense petitioner could be convicted of on count one was entering without breaking. The court re- • manded for entry of judgment of conviction for that offense and for appropriate resen-tencing. The court specifically observed, “No error affects appellant’s other convictions.” Fasenmyer v. State, 413 So.2d 33, 33 (Fla. 1st DCA 1981), review denied, 413 So.2d 877 (Fla.1982).

On resentencing, the trial court was faced with an unusual situation. When imposing sentence previously the court had determined that count one, breaking and entering enhanced by the carrying of a firearm, and count three, based on the use or display of a firearm during the burglary, had “merged,” and accordingly, had imposed no sentence on count three. After remand from the district court of appeal, ordering reduction of the offense in count one to entering without breaking, it was determined that counts one and three had “unmerged” because there was no statutory provision for enhancement of the crime of entering without breaking by proof of the carrying of a firearm. If the sentence on count one was to be reduced to the statutory maximum punishment of five years and the sentence on count three (no sentence) was left undisturbed, then petitioner would escape punishment entirely for having used a firearm in the commission of the crime.

At the resentencing hearing, petitioner’s counsel sought to alleviate this problem for the court by offering a stipulation or testimony that petitioner was carrying a loaded gun at the time of the unlawful entry he was convicted of on count one. Counsel’s purpose was to allow the court to sentence petitioner for entering without breaking as a second-degree felony, carrying a possible penalty of fifteen years, rather than as a third-degree felony carrying a maximum penalty of five years. Use of the applicable enhanced penalty provision required proof of possession of “nitroglycerine, dynamite, gunpowder, or other high explosive.” See § 810.03, Fla.Stat. (1973) (referring to § 810.01, Fla.Stat. (1973)). However, the court would not accept petitioner’s argument that the powder in the bullets of his gun came within this statutory provision, and found that the most petitioner could be sentenced to on count one was five years.

Petitioner’s objective in making this stipulation and argument was to avoid having the trial judge resentence him under count three. He argued that resentencing under count three would violate the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Pearce held that although there is no constitutional bar to imposing a more severe sentence on retrial after appeal, the Due Process Clause of the Fourteenth Amendment requires that vindictiveness against the defendant for having taken a successful appeal “must play no part in” resentencing. Valid reasons for a harsher sentence than that previously imposed must affirmatively appear in the record and be based on “objective information concerning identifiable conduct.” Id. at 725-26, 89 S.Ct. at 2080-81.

The trial court resentenced appellant as follows: (1) for count one, entering without breaking with intent to commit a felony, five years; (2) for count two, grand larceny, five years, consecutive to count one; (3) for count three, use of a firearm in the commission of a felony, fifteen years, consecutive to counts one and two. Petitioner was given credit for nearly nine years of time served.

On appeal petitioner challenged the re-sentencing on counts two and three. The district court affirmed and held that the trial court could change the sentences on offenses which were not challenged or disturbed on appeal as to either conviction or sentence. Relying on United States v. Susie, 639 F.2d 940 (3d Cir.1981), the district court reasoned that such a rule would allow the sentencing court to achieve its original sentencing plan based on the aggregate of the convictions. Fasenmyer v. State, 425 So.2d 151, 152 (Fla. 1st DCA 1983).

Petitioner argues that the district court was wrong to affirm the trial court’s changing of the five-year sentence on count two from concurrent to consecutive. After his third trial petitioner was sentenced to five years for the offense of grand larceny, to be served concurrently with count one. By that time petitioner had already served seven years on count one and therefore he had fully satisfied the concurrent sentence on count two. By changing the sentence from concurrent to consecutive in 1982, and not pursuant to any challenge by appellant to the previous sentence or the underlying conviction, the court nullified the service of those five years and violated the Double Jeopardy Clauses of the United States and Florida constitutions.

In Troupe v. Rowe, 283 So.2d 857 (Fla.1973), this Court held that once a defendant has been sentenced, double jeopardy attaches and a court may not thereafter on its own motion increase the severity of the sentence. Such prohibition, clearly, should apply even more strongly when the offender has fully satisfied the sentence. It was so held in Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), where the defendant was sentenced to both a fine and imprisonment where the statute provided for either a fine or imprisonment. The Court held that when the offender had paid the fine, the sentence was fully satisfied and the court could not thereafter re-sentence him. Of course, the rule that a sentence cannot be changed after service has begun does not apply where the defendant successfully challenges his sentence or the conviction upon which it is based.

If petitioner had successfully appealed or collaterally attacked his conviction on count two, on remand the court would have been free to change the sentence from concurrent to consecutive so long as it stayed within the confines of North Carolina v. Pearce. See Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982); Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972). But we hold that where a conviction is not challenged and not disturbed by the appellate court, and has been fully satisfied by.its terms by the time the trial court receives the case on remand, a sentence originally ordered to be served concurrently cannot be changed to consecutive service.

We also find merit in petitioner’s argument as it pertains to his new sentence on count three. After petitioner’s original conviction, he was sentenced to fifteen years on count three, to be served consecutively to counts one and two. On his second conviction after retrial, the court gave petitioner no sentence on count three because it was deemed to have “merged” with count one. However, after the appellate court reduced count one to entering without breaking, an offense for which there is no provision for enhancement by the use of a firearm, the trial court no longer considered counts one and three merged for sentencing purposes. The court accordingly sentenced petitioner again to fifteen years consecutive to the sentences on counts one and two. While it might well be argued that the new sentence on count three does not come within the rule of Ex Parte Lange because petitioner never finished serving a sentence on count three, we nevertheless find that the court erred in resentencing petitioner on count three.

In affirming the new sentences, the district court found support in United States v. Busic, 639 F.2d 940 (3d Cir.1981). There it was held that because of an appellate court’s reversal of one set of convictions among several, the trial “court’s sentencing plan, based on the aggregate conviction ... was- thwarted. In such a case, we believe an appellate court, vacating one of those sentences, can vacate the other sentence even if its imposition is not specifically raised on appeal.” Id. at 947 (footnote omitted). Thus Busic is somewhat different from the present case in that there the appellate court vacated the other sentence while here the appellate court left the other convictions and sentences undisturbed. The propriety of an appellate court vacating an unchallenged sentence in order to allow plenary resentencing as in Busic is not before us because it is clear from the district court’s opinion here that only the judgment and sentence on count one were affected by its judgment. 413 So.2d at 33.

We find Chandler v. United States, 468 F.2d 834 (5th Cir.1972), much more closely applicable to this case. Like the present case, Chandler dealt with a trial court’s modification, on its own motion, of the sentence on a conviction that had not been challenged. There the government argued that because of an error in a companion sentence, the trial court properly changed the sentence on the unchallenged count in order to achieve the trial court’s original intent. The Court of Appeals was not persuaded because divining the sentencing court’s intent was too delicate an undertaking.

To allow the trial court’s action in this case to stand would place a rather formidable deterrent in the path of a convicted defendant who desires to apply for post-conviction relief on only one count of a multi-count conviction. By subjecting the defendant to the contingency of having a non-challenged sentence escalated to the statutory maximum, we would truly be inviting the defendant to play “Russian Roulette.”

468 F.2d at 837.

Furthermore, the district court’s reference, based on the Busic analysis, to “aggregate” sentencing for multiple convictions based on “interdependent” offenses is inconsistent with the principle laid down by this Court in Dorfman v. State, 351 So.2d 954 (Fla.1977). There we held that general sentences on convictions of multiple offenses were improper.

The evil of a general sentence ... inheres in the uncertainty that its inscrutability creates, for if the trial judge had committed a reversible error as to any one count for any reason, the entire sentence would have to be vacated. Then, on resentencing, a failure to reduce a new sentence for the affirmed conviction or convictions could raise complications comparable to those arising from the imposition of a more severe sentence when a defendant is convicted on retrial of the charges which underlay the reversed conviction.

Id. at 957 (footnote omitted). Each separate offense must carry a discrete sentence. See § 775.021(4), Fla.Stat. (1981). We conclude that the concept of aggregate sentencing on interdependent offenses as it relates to a trial judge’s desire to effect the original sentencing plan does not justify modification, on remand after appeal, of sentences on convictions not challenged on appeal or disturbed by the appellate court.

The decision of the district court of appeal is quashed and the new sentences improperly imposed on petitioner on counts two and three are vacated.

It is so ordered.

ADKINS, OVERTON and SHAW, JJ., concur.

ALDERMAN and McDONALD, JJ., dissent. •

      . Neither the correctness of this characterization, nor its result as determined by the trial court, is an issue before us in this case.

      . Compare § 810.03, Fla.Stat. (1973) with § 810.01(1), Fla.Stat. (1973). The two statutes provided as follows:
      § 810.01:
      (1) Whoever breaks and enters a dwelling house, or any building or structure within the curtilage of a dwelling house though not forming a part thereof, with intent to commit a felony, or after having entered with such intent breaks such dwelling house or other building or structure aforesaid, if he be armed with a dangerous weapon, or have with him any nitroglycerine, dynamite, gunpowder or other high explosive at the time of breaking and entering, or if he arm himself with a dangerous weapon, or take into his possession any such high explosive within such building, or if he make an assault upon any person lawfully therein, shall be guilty of a felony of the first degree, punishable by imprisonment in the state prison for life, or for such term of years as may be determined by the court.
      (2) If the offender be not armed, nor arm himself with a dangerous weapon as aforesaid, nor have with him nor take into his possession any high explosive as aforesaid, nor make an assault upon any person lawfully in said building, he shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.
      § 810.03:
      Whoever enters without breaking, any dwelling house, or any of the buildings or structures mentioned in §§ 810.01 and 810.02 or into any ship or vessel, with intent to commit a felony, shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. If the offender entered having with him, or having entered, takes into his possession, any high explosive mentioned in § 810.01, he shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

      . Under section 810.03, Fla.Stat. (1973), entering without breaking was a third-degree felony, with a maximum sentence of five years imprisonment. § 775.082(4)(d), Fla.Stat. (1973). The offense could be enhanced to a second-degree felony by the possession of a "high explosive" as defined in section 810.01(1), but not by possession of a firearm. Breaking and entering under section 810.01 was a second-degree felony but could be enhanced to a first-degree felony by the possession of explosives or a firearm. Second-degree felonies were punishable by a maximum sentence of fifteen years, first-degree felonies by thirty years or life imprisonment. § 775.082(4)(b) and (c).

      . Thus, had the district court of appeal in 1981 vacated all three sentences rather than simply reversing on count one, Busic might provide support for the holding below. However, the
        Busic principle is still being debated in the federal courts and is far from having achieved universal acceptance. In Busic v. United States, 446 U.S. 398, 412, 100 S.Ct. 1747, 1756, 64 L.Ed.2d 381 (1980), the question was left open. On remand, the Third Circuit rendered the decision discussed in text. However, the Fifth Circuit, in United States v. Henry, 709 F.2d 298 (5th Cir.1983), held that after a collateral attack, a valid unchallenged sentence cannot be changed. The Supreme Court’s decision in United States v. DiFrancesco, 449 U.S. 117, 1.01 S.Ct. 426, 66 L.Ed.2d 328 (1980), upheld the constitutionality of the federal "dangerous special offender” statute, which gives the government the right to seek on appeal to increase the sentence of a dangerous defendant. This holding has created further confusion in light of the Fifth Circuit's view of the Third Circuit's interpretation of DiFrancesco, to the effect that the decision "abolished — even in the absence of a statute — the common law’s double jeopardy ban against the imposition of an increased sentence after the defendant has begun to serve his original sentence.” United States v. Henry, 709 F.2d at 309-10, (citing United States v. Busic, 639 F.2d 940). Whatever the outcome of that debate, it does not govern our disposition of this case.


source: Caselaw Access Project

author: ADKINS, Justice. BOYD, Justice,

license: Public Domain

text:
    Paul Edward MAGILL, Appellant, v. STATE of Florida, Appellee.
    No. 64997.
    Supreme Court of Florida.
    Sept. 20, 1984.
    Rehearing Denied Nov. 26, 1984.

      Philip J. Padovano, Tallahassee, and Patrick D. Doherty, Clearwater, for appellant.
    Jim Smith, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.
   ADKINS, Justice.

This case is before us on appeal from the denial of Magill’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We also have before us a motion for a stay of execution. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Magill was charged by indictment with the crimes of first-degree murder, sexual battery, and armed robbery. A plea of not guilty was entered and the case was tried before a jury on March 21, 1977. At the close of the guilt phase of the trial, the jury returned a verdict finding Magill guilty of each of the offenses. At the conclusion of the penalty portion of the trial, the jury returned an advisory verdict recommending the imposition of the death penalty. Consecutive life sentences were imposed for the charges of robbery and involuntary sexual battery, and the trial judge imposed a sentence of death on the charge of murder, in accordance with the recommendation of the jury.

Magill’s direct appeal to this Court resulted in an affirmance of the conviction, but we remanded the case for a new sentencing hearing on the ground that the trial judge erred generally in his failure to list the mitigating circumstances which may or may not have been considered. Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981) (hereinafter Magill I).

On January 26, 1981, following the new sentencing hearing, the trial judge entered a new judgment supported by written findings of fact. The ultimate conclusion of the court was that there were insufficient mitigating circumstances to outweigh the aggravating circumstances. Accordingly, the trial judge resentenced Magill to death.

The second appeal to this Court involved only the validity of MagilPs sentence. On March 10, 1983, this Court entered its opinion affirming the imposition of the sentence of death. Magill v. State, 428 So.2d 649 (Fla.), cert. denied, — U.S. —, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983) (hereinafter Magill II).

Governor Graham denied Magill’s petition for executive clemency and signed a death warrant on February 21, 1984, directing the execution of the sentence at some time between March 16, 1984, and March 23, 1984. Subsequently, the Superintendent of the Florida State Prison scheduled the execution for Tuesday, March 20, 1984, at 7:00 a.m.

Shortly after the warrant was signed Magill filed a motion to vacate the judgment and sentence of death and a motion for stay of execution. The trial judge considered the evidence presented on Magill’s behalf and entered an order denying the motion to vacate as well as the motion for stay of execution. On March 13, 1984, this Court entered a temporary stay of execution pending further order of this Court.

Magill asserted the following fundamental errors in his collateral challenge to the conviction and sentence: 1) that he was deprived of effective assistance of counsel at trial in violation of his rights under the sixth and fourteenth amendments; 2) that his plea of guilty of second-degree murder, made directly to the jury by trial counsel, was accepted by the court in the absence of a determination of voluntariness; 3) that the exclusion for cause of a juror who expressed a conscientious objection to the imposition of the death penalty upon youthful offenders deprived the defendant of his sixth and fourteenth amendment rights; 4) that the imposition of the death penalty upon a youth who was under the age of eighteen at the time of the offense constitutes excessive and disproportionate punishment in violation of the eighth and fourteenth amendments; 5) that the imposition of the death penalty in this case constitutes a denial of his equal protection rights as he is the only juvenile offender against whom a death warrant has been signed in the entire class of capital juvenile offenders; 6) that he was denied the effective assistance of counsel at sentencing in violation of the sixth and fourteenth amendments; 7) that the consideration by this Court of a psychological report denied him his sixth amendment right of confrontation and his right to a fair sentencing review required in capital cases by the eighth and fourteenth amendments; 8) that the approval of the use of certain aggravating circumstances prior to the sentencing on remand effectively deprived him of his right to a fair sentencing hearing in violation of his rights under the eighth and fourteenth amendments; 9) that the death sentence, in view of the overwhelming mitigating circumstances in his case, constitutes excessive and disproportionate punishment forbidden by the eighth and fourteenth amendments.

At his 3.850 hearing, the trial judge evaluated Magill’s claim of ineffectiveness of counsel according to the standards which we set forth in Knight v. State, 394 So.2d 997 (Fla.1981). Since that time the United States rendered its decision in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), discussing the standards to be applied when assessing ineffectiveness claims. However, the Supreme Court in Strickland held that, to the extent the lower court evaluated the claim according to whether the particular proceeding is unreliable because of a breakdown in the adversarial process, the standards articulated therein did not require reconsideration of ineffectiveness claims rejected under different standards. Moreover, in Jackson v. State, 452 So.2d 533 (Fla.1984), we held that the Knight standard is not significantly different than the guidelines of Strickland. See also Downs v. State, 453 So.2d 1102 (Fla.1984).

At his rule 3.850 evidentiary hearing, Magill asserted approximately thirteen different perceived failings of his counsel at trial. We find from our review of the record that those perceptions were faulty inasmuch as either the testimony contradicts the claim, or the perceived failing was not an act necessarily required of counsel, or Magill failed to demonstrate any specific prejudice to his case.

Among the claims asserted is the complaint that counsel failed to interview, depose or cross-examine certain witnesses or potential witnesses. Decisions on these matters are tactical choices and are within the standard of competency expected. See Armstrong v. State, 429 So.2d 287 (Fla.), cert. denied, — U.S. —, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983); Straight v. Wainwright, 422 So.2d 827 (Fla.1982).

In order to characterize the lack of depositions as a specific omission, Magill would have to identify a specific evidentia-ry matter to which the failure to depose witnesses would relate. But the simple assertion that there were few or no depositions taken does not qualify as an identification of a specific omission. Messer v. State, 439 So.2d 875 (Fla.1983). There is nothing in the motion or in the record to show admissible evidence that would be forthcoming from the witnesses or what material may have been brought out in cross-examination. Hence, there is no showing before this Court of a causal relationship between the failure to obtain the testimony at trial of these witnesses or failure to extract favorable testimony to the defendant upon cross-examination and the defendant’s conviction. See Aldridge v. State, 425 So.2d 1132 (Fla.1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983).

Magill also challenges his counsel’s failure to file pretrial motions, motions to suppress and motions challenging the constitutionality of the death penalty as applied to this case. In each of these either the record shows the motion lacked merit or Magill failed to demonstrate the merit or requisite prejudice.

An attorney should raise any honestly debatable issue that may aid his client's position, but he is not obligated to raise every conceivable issue, and certainly not when he regards the argument as futile because of its lack of merit. Palmes v. State, 425 So.2d 4 (Fla.1983). The defendant’s right to reasonably competent counsel does not entitle him to have every conceivable challenge pressed upon the court. Scott v. Wainwright, 433 So.2d 974 (Fla.1983).

Another of the perceived failings at trial was that counsel did not contest MagilPs guilt during the guilt phase and that he allowed Magill to testify to his own guilt. Testimony at the evidentiary hearing firmly established that the defense of insanity was initially a considered possibility, but when medical examination of Magill revealed this was out of the question, the goal was clearly to obtain a conviction based on a lesser offense of second-degree murder to save his life and to obtain mercy from the jury. See e.g., McNeal v. Wainwright, 722 F.2d 674 (11th Cir.1984).

Magill contends that his counsel was ineffective at the penalty phase of the trial because he failed to present available mitigating evidence which would likely have changed the advisory verdict and because he failed to use existing favorable evidence to rebut the aggravating circumstances. The lower court properly denied relief on the basis of this claim after allowing the defendant to present the testimony of numerous witnesses.

The choice by counsel to present or not to present evidence in mitigation at the sentencing phase of trial is a tactical decision properly within counsel’s discretion. Brown v. State, 439 So.2d 872 (Fla.1983). It cannot be said that the further presentation of mitigating evidence would have been beneficial to the defendant or that such mitigating evidence even existed.

It is also asserted that counsel failed to contest the ruling of the court restricting the penalty proceeding to the statutory mitigating circumstances and that counsel failed to assert any non-statutory mitigating circumstances. These assertions are belied by the record. The transcript of the penalty phase proceedings upon remand does not show any limitations imposed upon the presentation of mitigating circumstances and the trial court did in fact find a non-statutory mitigating circumstance, i.e., that Magill’s father passed away on December 28, 1975. In any event, a claim that the trial court unduly restricted the introduction of evidence relevant to non-statutory mitigating circumstances should have been raised on direct appeal. Cooper v. State, 437 So.2d 1070 (Fla.1983), cert. denied, — U.S. —, 104 S.Ct. 986, 79 L.Ed.2d 221 (1984).

The defendant further contends counsel failed to call any witnesses or present argument negating aggravating circumstances. However, the medical examiner and other unknown witnesses were never called to testify at the evidentiary hearing and it is not known what the substance of such testimony might be. Such a claim is speculative and is not supported by affidavit or evidence. An expert in capital eases testified that in such cases the medical examiner could testify that after the gunshot wound to the head the victim was rendered unconscious so as to show that the crime was not heinous, atrocious or cruel. While this may be true in some capital cases, there is no reason to believe it holds true in this case for this medical examiner absent something more than the fact that she was not called to testify.

In conclusion, applying the standards of Strickland and Knight, there was no sufficient deficiency in counsel’s performance under the circumstances nor was there the requisite amount of prejudice shown.

Next Magill argues that imposition of the death penalty upon a defendant who was seventeen years old at the time of the offense is excessive and disproportionate punishment in violation of the eighth and fourteenth amendments and that it is a violation of his equal protection rights because he is the only juvenile offender against whom a death warrant has been signed. This issue is not properly presented in a 3.850 motion. Christopher v. State, 416 So.2d 450 (Fla.1982).

Magill also argues that this Court considered a psychological screening réport during the oral argument in the direct appeal from his conviction and sentence (Magill II) which was not provided to his appellate counsel. He contends that this is a violation of his rights under the fifth, sixth, eighth, and fourteenth amendments and relies on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

The reliance on Gardner is misplaced under these circumstances. We have previously fully discussed this issue in Brown v. Wainwright, 392 So.2d 1327, 1332 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). In that case we stated:

It is evident, once our dual roles in the capital punishment scheme are fully appreciated, that non-record information we may have seen, even though never presented to or considered by the judge, the jury, or counsel, plays no role in capital sentence “review.” That fact is obviously appreciated by the United States Supreme Court, for it very carefully differentiated the sentence “review” process of appellate courts from the sentence “imposition” function of trial judges in Proffitt [Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) ] and in Gregg v. Georgia, 428 U.S. 153, [96 S.Ct. 2909, 49 L.Ed.2d 859] (1976).
A remaining question is whether the reading of non-record documents would so affect members of this Court that they could not properly perform their assigned appellate functions. Plainly, it would not. Just as trial judges are aware of matters they do not consider in sentencing, Alford v. State, 355 So.2d 108 (Fla.), cert. denied, 436 U.S. 935 [98 S.Ct. 2835, 56 L.Ed.2d 778] (1978), so appellate- judges are cognizant of information that they disregard in the performance of their judicial tasks.
The upshot of this is that petitioners’ claims áre untenable.

Id. (footnote omitted.)

The remaining grounds asserted by Ma-gill were not cognizable on collateral attack because they either were or could have been raised on direct appeal. Armstrong, 429 So.2d at 288; Thompson v. State, 410 So.2d 500, 501 (Fla.1982).

Accordingly, we find no error and affirm the order of the trial court denying Magill’s motion for post-conviction relief, and dissolve the stay of execution entered March 13, 1984.

It is so ordered.

ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., concurs in part and dissents in part with an opinion.

OVERTON, J., dissents.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the Court’s affirmance of the trial court’s refusal to vacate Magill’s convictions. However, for the reasons stated in Magill v. State, 428 So.2d 649, 652 (Fla.) (Boyd, J., concurring in part and dissenting in part), cert. denied, — U.S. —, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983), I would reverse the denial of relief insofar as it pertains to the sentence of death. The sentence of death imposed on the appellant was not the product of a proper weighing of the established aggravating and mitigating circumstances. While the facts of the murder appellant committed, seen in the abstract, seem to call for the most severe punishment available, facts pertaining to the appellant himself and his character and background should have been held to outweigh the aggravating circumstances. Of particular importance was the fact that he was an unemancipated minor at the time of the crimes. I would vacate the sentence of death and remand for imposition of a sentence of life imprisonment without eligibility for parole for twenty-five years.


author: ADKINS, Justice.

text:
    Charles Kenneth FOSTER, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 65967.
    Supreme Court of Florida.
    Oct. 10, 1984.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, Richard H. Burr, III and Louis G.

      Carres, Asst. Public Defenders, 15th Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

We have before us a petition for a writ of habeas corpus. Jurisdiction of this Court is invoked pursuant to article V, section 8(b)(9), of the Florida Constitution.

On October 3, 1975, petitioner was convicted of first-degree murder and robbery. The following day, he was sentenced to death upon the conviction for murder in the first degree, and to life imprisonment upon the conviction for robbery. This Court affirmed both of petitioner’s convictions and sentences on February 22, 1979, and denied rehearing on May 10, 1979. Foster v. State, 369 So.2d 928 (Fla.1979). The United States Supreme Court denied certiorari on October 1, 1979. Foster v. Florida, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979).

On September 29, 1980, petitioner joined with 122 other capital defendants in challenging Florida’s death penalty statute by habeas corpus petition. This Court decided the claim adversely to petitioner’s prayer for relief. Brown v. Wainwright, 392 So.2d 1327 (Fla.1981).

Subsequent to the signing of a warrant setting his execution, petitioner filed a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Relief was summarily denied. On appeal to this Court, the trial court’s order denying post-conviction relief was affirmed. Foster v. State, 400 So.2d 1 (Fla.1981).

Thereafter, petitioner filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida. On July 2, 1981, judgment was entered denying his petition. Foster v. Strickland, 517 F.Supp. 597 (N.D.Fla.1981). The Eleventh Circuit affirmed the district court’s denial of relief. Foster v. Strickland, 707 F.2d 1339 (11th Cir.1983). Petitioner then applied for certiorari relief to the United States Supreme Court. This was denied in Foster v. Strickland, — U.S. —, 104 S.Ct. 2375, 80 L.Ed.2d 847.

The facts of this case are set forth in Foster v. State, 369 So.2d 928 (Fla.1979), and need not be repeated here.

Petitioner argues that he did not receive meaningful appellate review of his death sentence because this- Court’s consideration of whether to use non-record materials in the review of petitioner’s death sentence on direct appeal was not made known to his counsel. This issue was settled in Brown v. Wainwright, 392 So.2d 1327 (1981), which held that availability of information to this Court concerning capital defendants, which was not presented at trial and was not part of the trial record or record on appeal was not unconstitutional. Thus, we find this argument to be without merit. We also find that all of the matters relating to incompetency in petitioner’s petition for habeas corpus and its supplement are cumulative to evidence presented at the trial.

Petitioner further argues based upon Magill v. State, 386 So.2d 1188 (Fla.1980), that this cause should be remanded to the trial court for resentencing because the trial judge failed to articulate any mitigating circumstances considered by him before imposing the death sentence.

Petitioner’s attorney argued on appeal that the trial court did not find any mitigating circumstances in the instant case. We find this same argument in habeas corpus proceedings to be without merit.

Petitioner finally contends that the concern for proportionality in capital sentencing requires a remand for the reimposition of the sentence in the instant case. This issue was disposed of on direct appeal where this Court found that the sentence imposed was proportionate in comparison to other similar death cases decided by the Court. Foster v. State, 369 So.2d 928 (Fla.1979). We find it unnecessary to revisit this argument.

There is nothing in the petition for habe-as corpus or its supplement that convinces the Court that petitioner is entitled to any relief. Petitioner’s arguments are without merit.

Accordingly, we hold that the petitioner is not entitled to relief and deny the petition for writ of habeas corpus.

It is so ordered.

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


author: McDonald, justice.

text:
    Randy MILLER, Executive Director, Department of Revenue, State of Florida, et al., Appellants, v. PUBLICKER INDUSTRIES, INC., and Publicker Chemical Corporation, et al., Appellees.
    No. 65839.
    Supreme Court of Florida.
    Oct. 11, 1984.

      Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III and Linda Lettera, Asst. Attys. Gen., Tallahassee, for appellants.
    Stephen C. O’Connell and W. Crit Smith of Cason & Henderson, Tallahassee, and Skadden, Arps, Slate, Meagher & Flom, New York City, for Publicker Industries, Inc. and Publicker Chemical Corp.
    Douglas L. Stowell and Mary K. Kraemer of Mang & Stowell, Tallahassee, for Juan Granados.
    Robert M. Ervin, Thomas M. Ervin, Jr. and Melissa Fletcher Allaman of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and Eugene T. Rossides of Rogers & Wells, Washington, D.C., for Internoor Trade, Inc.
    Kenneth R. Hart and Steven J. Uhlfelder of Ausley, McMullen,-McGehee, Carothers & Proctor, Tallahassee, and Aubrey M. Daniel, III, John K. Villa and Stephen L. Urbanczyk of Williams & Connolly, Washington, D.C., amicus curiae for National Corn Growers Ass’n.
   McDonald, justice.

This case is before us on certification by the First District Court of Appeal that a trial court judgment involving issues of great public importance requires our immediate resolution. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.

Publicker and other brokers and importers of Brazilian ethyl alcohol brought actions in the circuit court of Leon County challenging the constitutionality of chapter 84-353, Laws of Florida. Chapter 84-353 limits the four-cent-a-gallon tax exemption granted gasohol by section 212.63, Florida Statutes (1983), to gasohol containing “ethyl alcohol which is distilled from U.S. agricultural products or byproducts” only. The trial court, after consolidating the cases and holding an expedited final hearing, found that Publicker had standing to challenge chapter 84-353 and that chapter 84-353 violated both the import-export clause and the commerce clause of the United States Constitution. The final judgment struck the language in chapter 84-353 which limits the gasohol tax exemption to gasohol made from domestic alcohol and permanently enjoined Miller from collecting the tax on gasohol containing foreign source alcohol. Miller appealed and the district court certified the case to us for immediate resolution. We affirm.

On the threshold issue of standing Miller argues that Publicker may not challenge the constitutionality of this taxing statute because Publicker neither pays nor collects the tax. Thus, the effect of the tax on Publicker’s business is indirect and cannot confer standing. We cannot agree with such a restrictive view of standing. A party may challenge the constitutionality of a statute after showing that enforcement of the statute will injuriously affect the plaintiffs personal or property rights. The standing of a particular plaintiff is a question of fact for the trial court. Lykes Brothers, Inc. v. Board of Commissioners of Everglades Drainage District, 41 So.2d 898 (Fla.1949).

In the present case Publicker presented evidence that, due to removal of the exemption on gasohol with foreign source alcohol, blender/distributors of gasohol in Florida either will not purchase or will require a substantial reduction in price before purchasing foreign ethyl alcohol. Publicker demonstrated the devastating effect this statute has had on its business. It must continue to pay fixed expenses while unable to sell its alcohol in Florida at an economically viable price. The direct, adverse effect of chapter 84-353 on Publicker is obvious. The legislature may not protect a tax statute from constitutional review merely by ensuring that someone other than the party whose business is adversely affected must pay the tax. Miller failed to show that foreign alcohol producers will reduce their prices after losing the tax exemption. We therefore agree with the trial court’s finding that Publicker had standing to challenge chapter 84-353.

Miller also claims that the trial court erred in holding that chapter 84-353 violates the import-export clause of the United States Constitution. Miller argues that the tax at issue does not constitute an impost on an import because the tax is levied on gasohol as a motor fuel, not on the imported ethyl alcohol itself. In his view the foreign ethyl alcohol loses its distinctive import status once blended into gasohol and becomes a domestic product subject to taxation. We cannot accept this argument as it relates to the discriminatory tax at issue here.

The import-export clause, article I, section 10, clause 2 of the United States Constitution, prohibits the states from imposing “any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws.” In Low v. Austin, 13 Wall 29, 80 U.S. 29, 20 L.Ed. 517 (1872), the Supreme Court interpreted the import-export clause to prohibit the states from imposing nondiscriminatory ad valorem property taxes on imported products until those products lost their import character. Low stood for over a hundred years until being overruled by Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S.Ct. 535, 46 L.Ed.2d 495 (1976). Michelin shifted the analysis from whether the imported goods still retained their import character to whether the tax complained of was an impost or duty. The nondiscriminatory ad valorem property tax imposed by Georgia on Michelin’s imported tires and tubes warehoused in Georgia did not affect federal regulation of foreign commerce or federal import revenues. A nondiscriminatory property tax

does not fall on imports as such because of their place of origin. It cannot be used to create special protective tariffs or particular preferences for certain domestic goods, and it cannot be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation.

Id. at 286, 96 S.Ct. at 541.

The tax at issue is contrary to the reasoning set out above. Unlike the nondiscriminatory property tax approved in Michelin, the tax exemption in chapter 84-353 excludes from its benefits only gasohol containing foreign source ethyl alcohol. This constitutes discriminatory taxation based upon the foreign origin of a product in violation of the import-export clause. Although Publicker has no right to import its alcohol free of all state taxation, it has the right to do so free from discriminatory state taxation. We agree with the trial court’s finding of unconstitutionality on this issue.

Miller argues finally that the trial court erred in holding that chapter 84-353 violates the commerce clause of the United States Constitution. He contends that the tax at issue does not impose an impermissible burden on foreign commerce. We agree that “interstate commerce must bear its fair share of the state tax burden.” Department of Revenue of Washington v. Association of Washington Stevedoring Cos., 435 U.S. 734, 750, 98 S.Ct. 1388, 1399, 55 L.Ed.2d 682 (1978). The commerce clause does, however, require “substantially evenhanded treatment.” Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 332, 97 S.Ct. 599, 603, 50 L.Ed.2d 514 (1977). A state tax must not be discriminatory, Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), and the prohibition on discriminatory taxation of interstate commerce extends to foreign commerce as well as domestic. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979). We conclude that the tax exemption limitation of chapter 84-353 facially discriminates against foreign commerce in -alcohol used to produce gasohol and that the trial court properly declared it unconstitutional.

Accordingly, we affirm the final judgment declaring chapter 84-353 unconstitutional and permanently enjoining Miller from collecting that portion of the motor fuel tax from gasohol containing foreign source alcohol otherwise exempt under section 212.63, Florida Statutes (1983).

It is so ordered.

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

       Gasohol is a motor fuel containing a minimum 10% blend of 99% pure ethyl alcohol. § 212.63, Fla.Stat. (1983).


author: PER CURIAM.

text:
    Terrence M. ASH, D.C., Petitioner, v. Nicholas A. STELLA, etc., Respondent.
    No. 63347.
    Supreme Court of Florida.
    Oct. 11, 1984.
    Susan J. Cole and Michael K. McLemore of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for petitioner.
    Edward A. Perse of Horton, Perse & Ginsberg, and Carroll, Halberg & Meyer-son, Miami, for respondent.
   PER CURIAM.

We have for review a decision of a district court of appeal, Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982), which is in conflict with decisions of other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The issue in this case is when does the statute of limitations begin to run in wrongful death actions where the negligence complained of is medical malpractice. Respondent Nicholas Stella, as personal representative of his wife’s estate, commenced this action on March 30, 1979, by filing a complaint charging petitioner Terrence M. Ash, D.C., with the wrongful death of his wife Cynthia Stella. The complaint alleged that Mrs. Stella began experiencing back and shoulder pains in 1975 and that on July 7, 1975, she came under the care and treatment of Albert Gersing, M.D. On January 7, 1977, according to the complaint, Mrs. Stella came under the care and treatment of Terrence M. Ash, D.C., who treated her improperly by failing to diagnose her condition as malignant he-mangiopericytoma of the soft tissue of the right post-scapula area. The complaint further alleged that a proper diagnosis was not made until March 23, 1977, by Robert B. Hinds, M.D., and that as a result of the delay of proper diagnosis, Mrs. Stella died on January 31, 1978.

Dr. Ash filed a motion to dismiss on the ground that the statute of limitations had run since the complaint was filed more than two years after Mrs. Stella’s condition was properly diagnosed. The motion was granted; Stella appealed and the district court reversed, finding that although the complaint was filed more than two years after a proper diagnosis was rendered, there was nothing in the complaint to indicate whether or not the proper diagnosis was conveyed to the patient. Stella v. Ash, 380 So.2d 488 (Fla. 3d DCA 1980). On remand, after additional discovery established that Mrs. Stella had been informed of the proper diagnosis on the day it was made, Dr. Ash filed a motion for summary judgment, again asserting that the statute of limitations had run. The trial court granted Ash’s motion for summary judgment, and Stella filed a second appeal.

On appeal, the district court again reversed, holding that a wrongful death action is not limitations-barred when it is filed within two years of the death of the injured party. Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982). The district court went on to hold that even if the action were required to be brought within two years of when the incident giving rise to the action was discovered or should have been discovered, the fact that Cynthia Stella had been informed of a proper diagnosis did not conclusively establish that she knew or should have known that Dr. Ash had misdiagnosed her condition.

In support of its holding that the statute of limitations did not begin running until Cynthia Stella had died, the district court cited Perkins v. Variety Children’s Hospital, 413 So.2d 760 (Fla. 3d DCA 1982), which held that a survivor can bring a wrongful death action even though the deceased while still living had recovered damages for his injuries. The district court in Perkins reasoned that the wrongful death action could be brought since it was a separate and independent cause of action and not derivative of the injured person’s right while living to recover for personal injuries.

We reversed the district court’s holding in Perkins, finding that there was no wrongful death cause of action.

At the moment of his death the injured minor Anthony Perkins had no right of action against the tortfeasor because his cause of action had already been litigated, proved and satisfied. The recovery awarded by the judgment in the previous personal injury action included damages arising from future expenses. Since there was no right of action existing at the time of death, under the statute no wrongful death cause of action survived the decedent. See Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934); Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894); Warren v. Cohen, 363 So.2d 129 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 462 (Fla.1979).

Variety Children’s Hospital v. Perkins, 445 So.2d 1010, 1012 (Fla.1983).

In this case we are concerned with the issue of whether a survivor can bring a wrongful death action in cases where if the decedent had survived, the decedent would have been precluded from filing suit because of the statute of limitations. The statute of limitations governing this case is section 95.11(4)(b), Florida Statutes (1979), which provides:

(b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.

This language was originally adopted in 1975. See Ch. 75-9, Laws of Fla. Before that time the statute of limitations governing malpractice suits did not apply to wrongful death actions. See e.g., St. Francis Hospital Inc. v. Thompson, 159 Fla. 453, 31 So.2d 710 (1947); Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975). However, by defining an “action for medical malpractice” to include a claim in tort for damages because of death, the legislature clearly intended this section to apply to wrongful death actions in cases where the basis for the action is medical malpractice. See Worrell v. John F. Kennedy Memorial Hospital, Inc., 384 So.2d 897 (Fla. 4th DCA 1980), aff'd sub nom., Dober v. Worrell, 401 So.2d 1322 (Fla.1981). Accord Real v. Kim, 112 Ill.App.3d 427, 68 Ill.Dec. 139, 445 N.E.2d 783 (1983); Armijo v. Tandysh, 98 N.M. 181, 646 P.2d 1245 (Ct.App.1981), cert. quashed; 98 N.M. 336, 648 P.2d 794, cert. denied, 459 U.S. 1016, 103 S.Ct. 377, 74 L.Ed.2d 510 (1982).

We now reach the question of whether the trial court properly granted summary judgment in favor of Dr. Ash. The trial judge concluded that Cynthia Stella knew or should have known of Dr. Ash’s allegedly improper diagnosis on March 23, 1977, when she received a proper diagnosis. However, the diagnosis on which the trial court based its decision was inarguably a preliminary diagnosis. Tests to confirm that diagnosis were not performed until March 29. The final results of those tests were not available until March 30. We do not believe that, as a matter of law, a tentative diagnosis, however proper it may turn out to be in hindsight, starts the clock on an action for medical malpractice arising out of negligent failure to properly diagnose. Thus there is an issue of fact as to whether notice that an inoperable, malignant tumor had been discovered did, in fact, put the respondent and his wife on legal notice that the tumor had existed at the time Dr. Ash treated Mrs. Stella and that Dr. Ash had been negligent in improperly diagnosing the problem. The etiology of malignancy is not well enough understood, even by medical researchers, that the courts should impute sophisticated medical analysis to a lay person struggling to cope with the fact of malignancy. Further evidence may reveal that, without knowledge of the specific nature of the tumor, no medical expert could have conclusively stated that the cancer did, in fact, exist at the time of Dr. Ash’s alleged misdiagnosis. Absent a finding of fact that before March 30, 1977, medical records showed that the newly discovered tumor had been the cause of Mrs. Stella’s earlier problems, constructive knowledge of the incident giving rise to the claim cannot be charged to the Stellas.

We therefore quash that portion of the district court opinion relating to the running of the statute of limitations for wrongful deaths arising out of medical malpractice, but we approve that portion reversing the summary judgment and remanding for further proceedings.

It is so ordered.

OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., and ADKINS, J., dissent.


text:
    Frank SMITH, Appellant, v. STATE of Florida, Appellee. Frank SMITH, Petitioner, v. Louie L. WAINWRIGHT, Etc., Respondent.
    Nos. 65,991, 65,992.
    Supreme Court of Florida.
    Oct. 11, 1984.
    Baya Harrison, III, Tallahassee, Billy H. Ñolas of Plunkett, Ñolas and Donnard, New York City, and Santha Sonenberg, Public Defender Service for the District of Columbia, Washington, D.C., for appellant/petitioner.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee/respondent.
   BOYD, Chief Justice.

These consolidated cases are before the Court on (1) appeal from the denial of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and (2) a petition for writ of habeas corpus. Appellant-Petitioner has also filed a motion for stay of execution of sentence. We affirm the denial of the motion for post-conviction relief and deny the petition for ha-beas corpus. Having resolved all issues adversely to appellant-petitioner, we deny his motion for stay of execution.

Frank Smith is a state prisoner under sentence of death. By jury trial he was convicted of first-degree murder, robbery, kidnapping, and sexual battery. In accordance with the recommendation of the jury, Smith was sentenced to death on the first-degree murder conviction. He was entitled to and received appellate review of his convictions and sentence of death. This Court affirmed the convictions and the sentence of death. Smith v. State, 424 So.2d 726 (Fla.1982). Smith’s subsequent petition for review was denied by the United States Supreme Court. Smith v. Florida, — U.S. —, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983).

Appeal of Denial of Rule 3.850 Motion

Appellant’s motion to vacate, set aside or correct judgment and sentence raised the following issues: (1) that jurors were improperly excused for cause due to their opposition to capital punishment and that, even if they were properly excused, imposing such “death qualifications” deprived appellant of trial by a jury drawn from a representative cross-section of the community; (2) that the jury instruction given on the process of weighing aggravating and mitigating circumstances placed the burden on the defendant to prove that death was not the appropriate penalty; (3) that the state at trial was improperly allowed to bolster the credibility of its principal witness before the defense had attempted to impeach him, violating the defendant’s right of confrontation; (4) that the trial court erred in refusing to instruct the jury on the defense of withdrawal; (5) that the giving of jury instructions on all lesser degrees of homicide, attempted murder, and felony murder is a practice conducive to arbitrariness in violation of the Eighth Amendment; (6) that instructing the jury on all the statutory aggravating circumstances was improper; (7) that the trial court erroneously instructed the jury that its decision to recommend either life or death would have to be made by a majority vote; (8) that the trial court so instructed the jury on mitigating circumstances as to limit consideration to statutory mitigating circumstances and that the court limited its own consideration thus as well; (9) that appellant did not receive the effective assistance of counsel at trial; and (10) that appellant’s sentence of death was a product of systematic racial discrimination in capital sentencing.

All but the last two of these arguments are issues that either were or could have been presented on appeal and are therefore not proper grounds for collateral challenge of the convictions or sentence. See Booker v. State, 441 So.2d 148 (Fla.1983). Appellant argues that these grounds are cognizable even though not raised on appeal, or even though raised on appeal and decided adversely to appellant, because they constitute fundamental error. We reject this contention and find that issues (1) through (8) above were properly summarily denied by the trial court as improper grounds for á Rule 3.850 claim.

The claim that the death sentence was the product of racially discriminatory sentencing practices is in theory one that can be raised by motion under Rule 3.850. See Henry v. State, 377 So.2d 692 (Fla.1979). However, we find that appellant did not make a sufficient showing to require the trial court to hold a hearing on the claim and we therefore affirm the trial court’s summary denial of relief on this ground. See State v. Washington, 453 So.2d 389 (Fla.1984).

The trial court properly held an evidentiary hearing on appellant's claim that the performance of his trial defense counsel was deficient. Under Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a convicted person making such a claim must identify specific acts or omissions that were deficient in the sense that they “were outside the wide range of professionally competent assistance.” Id. 104 S.Ct. at 2066. The inquiry must be based on a presumption of competence and a deferential approach to counsel’s strategy and tactics. The claimant who meets this requirement must then establish that the deficiency was such that there is a reasonable probability that the result of the proceeding would have been different. The United States Supreme Court explained that this second element of the necessary showing — prejudice—was shown by a failure of the adversarial testing process sufficient to undermine confidence in the outcome.

The trial court found that appellant had failed to show any deficiency or deviation from professional standards of competence on the part of defense counsel at appellant’s trial. We agree and approve the trial court’s analysis of the facts as follows:

The defendant was represented at trial and on direct appeal by Mr. Philip J. Padovano. Mr. Padovano represented the defendant for six (6) years from December, 1978, through the summer of 1984 until this claim was lodged against him. He represented the defendant during all phases of discovery, pre-trial hearings, the guilt phase of the trial, the penalty phase, and the direct appeal to the Florida Supreme Court.
Mr. Padovano is an experienced criminal trial lawyer with over one hundred (100) jury trials to his credit. As of the time of the defendant’s trial in this case, Mr. Padovano had been involved in more than fifty jury trials. Moreover, he secured the assistance in this case of another experienced trial attorney, Mr. Martin Murray, of St. Petersburg, Florida, who had previously represented defendants in capital cases. Furthermore, Mr. Padovano has been a member of the Florida Bar for eleven (11) years and has had no grievances or claims of ineffectiveness filed against him previously.
Mr. Padovano was able to effectively communicate with the defendant through every stage of the proceedings. In fact, the defendant wrote often to Mr. Padova-no and never expressed the notion that he was less than pleased with Mr. Pado-vano’s representation. The only complaint the defendant expressed was the speed at which Mr. Padovano responded to his letters. However, this was during a two year period awaiting the Florida Supreme Court’s opinion on direct appeal.
In preparing for trial Mr. Padovano spoke with hundreds of potential witnesses including members of the defendant’s family. They included the defendant’s sister, Jessie Smith-Givens, and his grandmother, Caldonia Smith. After interviewing these two individuals Mr. Pa-dovano determined their testimony would not be helpful during the penalty phase of the proceedings and made the strategic choice not to call them as witnesses in defendant’s behalf. He determined Jessie Smith-Givens was in a branch of the armed services and would be going to Germany thus unavailable to testify. However, he made it clear her distance from the proceeding was not the reason he chose not to call her to testify. In addition, he determined Caldonia Smith’s testimony at the penalty phase would not be helpful. She had told him she did not think she would live through the experience as her health was very poor and that she did not want to testify in any event.
Mr. Padovano’s pre-trial discovery included the deposition of co-defendant, Victor Hall, who had testified during the trial in the guilt phase that the defendant was the one carrying the “smoking gun” when Johnny Copeland (the other co-defendant) and Smith returned to the car from the woods in which Sheila Porter was murdered. On cross-examination, Mr. Padovano was able to impeach Hall by getting him to admit he had “lied” to the jury on direct examination. Afterward, Hall broke down and cried on the witness stand. Due to Hall’s total impeachment in front of the jury, Mr. Pado-vano did not even “elevate to a decision” whether to call Hall as a witness in the penalty phase. While Mr. Padovano did not have an opportunity to scrutinize every detail of Hall’s affidavit which the defendant attached to his motion for post-conviction relief, he was able to determine the affidavit is inconsistent with Hall’s trial testimony. This fact is supported by the record.
In an effort to bring mitigating factors to the attention of the jury, Mr. Padova-no obtained the services of Dr. Wallace Kennedy, a licensed psychologist and professor of psychology at Florida State University. Dr. Kennedy examined the defendant pursuant to this Court’s order. He reported to Mr. Padovano that the defendant had no congenital or physiological defects. Moreover, he advised that the defendant was not incompetent or insane and did not suffer from any type of brain dysfunction. Dr. Kennedy advised Mr. Padovano the defendant was a secondary psychopath, a mental disorder acquired after birth but which does not rise to the level of incompetency or insanity. Dr. Kennedy advised further that his prognosis of Smith’s future behavior was very poor. He indicated his testimony would be harmful rather than helpful and, in fact, it was his opinion Smith would kill again. Based on this information, Mr. Padovano reminded Dr. Kennedy of the attorney-client privilege and made the strategic choice not to call him as a defense witness at the penalty phase.
Mr. Padovano later learned from a subsequent conversation with Dr. Kennedy that the defendant suffered from epilepsy as a child. However, in contacting the office of Smith’s physician, Dr. Brick-ler, Mr. Padovano was unable to verify whether or not Smith was ever a patient of Dr. Brickler.
Mr. Padovano did not have separate strategies for the guilt phase of the trial and the penalty phase. Based on the statements given the police by Smith and his co-defendants, especially Victor Hall who put the gun in Smith’s hand, as well as the other State’s evidence, a trial strategy was developed long before trial that the State would be held to its burden of proof. Furthermore, the defense strategy was to show that although Smith was involved in the underlying felonies he was not the murderer but rather tried to withdraw and talk Johnny Copeland out of killing Sheila Porter when he learned lethal force was about to be used against her. Thus, he argued Smith was not deserving of the death penalty. Mr. Padovano felt confident the jury was accepting his argument during the guilt phase that Smith was not the triggerman and that Hall could not be believed when the jury returned and asked what the highest offense Smith could be convicted of if he did not pull the trigger. While the question had a positive impace on Mr. Padovano, he testified it would not have changed his approach and served only to reinforce the defense strategy.
Based on the foregoing, the entire testimony before this Court in defendant’s Rule 3.850 motion hearing and on the record of this case, I find the defendant’s trial counsel, Mr. Philip J. Padovano, did not call character witnesses to testify in mitigation at the penalty phase for the reason their testimony would have been harmful rather than helpful. Such harmful testimony would have supported aggravating circumstances rather than mitigating ones. I find based upon the testimony that Mr. Padovano elected not to present the evidence in question and it was a considered strategic judgment.

We find that the appellant failed to establish the first element of the Strickland v. Washington test for ineffective assistance of counsel and therefore affirm the trial court’s denial of post-conviction relief.

Petition for Habeas Corpus

Smith’s habeas corpus petition raises the issue of denial of effective assistance of counsel on appeal. By means of this challenge to appellate counsel’s performance, petitioner seeks to have this Court to provide belated review of issues which were not argued on appeal but which petitioner says should have been argued and would have resulted in favorable appellate relief if they had been argued.

Again, under Strickland v. Washington, petitioner must first show that his counsel’s performance fell short of prevailing professional norms, then must show a reasonable likelihood that the deficiency affected the outcome. Bearing in mind the presumption of competence and the required deference to counsel’s strategic choices, as taught by Strickland v. Washington, we find that petitioner has not identified any act or omission of his former appellate counsel that constituted a deficiency or deviation from professional norms. We therefore decline to allow petitioner to use the ineffectiveness challenge as a vehicle for further appellate review of his convictions and sentence..

The judgment of the circuit court is affirmed and the petition for writ of habeas corpus is denied. The motion for stay of execution is denied.

It is so ordered.

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

SHAW, J., concurs in result only.


text:
    THE FLORIDA BAR, Complainant, v. R. Bruce JONES, Jr., Respondent.
    No. 63855.
    Supreme Court of Florida.
    Oct. 18, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, for complainant.
    Charles L. Brown, Brown & Pickett, West Palm Beach, for respondent.
   PER CURIAM.

This bar disciplinary proceeding is before us on a referee’s report recommending that R. Bruce Jones, Jr. be found guilty of misconduct and recommending that Jones be suspended from the practice of law for six months. Neither The Florida Bar nor Jones has contested the referee’s report. We have jurisdiction pursuant to article V, section 15 of the Florida Constitution.

The referee found that Edward Bussey retained Jones to represent him in a personal injury action. Bussey had received $9,291.35 in medical services from a hospital, which filed a lien for that amount. Jones advised the attorney representing the hospital that he had received only $10,-000.00 for Bussey’s personal injuries. The hospital’s counsel agreed to settle the hospital’s claim against Bussey for $8,000.00. Jones had in fact received a $25,000.00 settlement on behalf of Bussey. Jones failed to pay the $8,000.00 settlement to the hospital until after the hospital filed suit and obtained a default final judgment against Bussey for $9,291.35 plus costs.

Based upon the conduct summarized above, the referee recommended that Jones be found guilty of violating The Florida Bar Code of Professional Responsibility, Disciplinary Rule 1-102(A)(4), by engaging in conduct involving misrepresentation, and violating Disciplinary Rule 6-101(A)(3) by neglecting a legal matter entrusted to him. Because this conduct was cumulative to previous misconduct, the referee recommended that Jones be suspended from the practice of law for six months, with proof of rehabilitation required before reinstatement. The referee further recommended that such suspension be retroactive to the date of the initial referee hearing on February 17, 1984.

We approve the referee’s findings and recommendations. R. Bruce Jones, Jr. is suspended from the practice of law for a period of six months from February 17, 1984 and thereafter until he proves rehabilitation. Costs of these proceedings in the amount of $961.20 are taxed against Jones.

It is so ordered.

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


author: BOYD, Chief Justice. ALDERMAN, Justice,

text:
    STATE of Florida, Petitioner, v. Robert Dale OVERFELT, Respondent.
    No. 64208.
    Supreme Court of Florida.
    Oct. 18, 1984.

      Jim Smith, Atty. Gen. and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, 15th Jud. Cir., West Palm Beach, for respondent.
   BOYD, Chief Justice.

This case is before the Court on petition for review of the decision in Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983). The district court of appeal certified its decision to be in direct conflict with Gentry v. State, 422 So.2d 1072 (Fla. 2d DCA 1982), on the question of whether the crime of attempted third-degree murder exists in the law of Florida. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

In Gentry v. State, 437 So.2d 1097 (Fla.1983), we approved the above-cited decision of the Second District Court of Appeal and held that there is a crime of attempted third-degree murder reasoning as follows:

[Tjhere are offenses that may be successfully prosecuted as an attempt without proof of a specific intent to commit the relevant completed offense. The key to recognizing these crimes is to first determine whether the completed offense is a crime requiring specific intent or general intent. If the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime. We believe there is logic in this approach and that it comports with legislative intent. Second-degree and third-degree murder under our statutes are crimes requiring only general intent.

Id. at 1098-99. We therefore take jurisdiction of this case pursuant to article V, section 3(b)(4), Florida Constitution, to quash that portion of the district court’s opinion that conflicts with our holding in Gentry. On remand the judgment of conviction of attempted third-degree murder should be reinstated. See also Amlotte v. State, 456 So.2d 448 (Fla.1984).

With regard to the second issue raised by the state’s petition for review, we find no error and approve that portion of the decision of the district court of appeal. This second issue concerns the question of whether there must be a specific jury finding that an accused actually possessed a firearm before a trial court can apply the enhancement and mandatory sentencing provisions of section 775.087, Florida Statutes (1983). In this case Overfelt was charged with, among other crimes, two counts of attempted first-degree murder. On these charges the jury found him guilty of the lesser included offenses of attempted third-degree murder on one count and aggravated assault on the other. The trial judge reclassified the crime of attempted third-degree murder as a felony of the third degree, relying upon section 775.-087(1), which authorizes the reclassification of the degree of a felony whenever the defendant in committing the felony carries, displays, uses, threatens, or attempts to use any weapon or firearm. The court also applied the three year mandatory sentencing provision of section 775.087(2).

The district court held, and we agree, “that before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.” 434 So.2d at 948. See also Hough v. State, 448 So.2d 628 (Fla. 5th DCA 1984); Smith v. State, 445 So.2d 1050 (Fla. 1st DCA 1984); Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982); Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1981). But see Tindall v. State, 443 So.2d 362 (Fla. 5th DCA 1983). The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury. Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury’s function to be the finder of fact with regard to matters concerning the criminal episode. To allow a judge to find that an accused actually possessed a firearm when committing a felony in order to apply the enhancement or mandatory sentencing provisions of section 775.087 would be an invasion of the jury’s historical function and could lead to a miscarriage of justice in cases such as this where the defendant was charged with but not convicted of a crime involving a firearm.

The decision of the district court of appeal is quashed in part and approved in part. We remand this case with instructions that Overfelt’s conviction of attempted third-degree murder be reinstated and that he be resentenced in accordance with the views expressed m this opinion.

It is so ordered.

ADKINS, OVERTON, McDONALD and SHAW, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion in which EHRLICH, J., concurs.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I concur with that portion of the majority opinion which reinstates Overfelt’s conviction of attempted third-degree murder. As to the second issue, however, I disagree with the Court’s holding that there must be a specific jury finding that an accused actually possessed a firearm before the trial court can apply the enhancement and mandatory sentencing provisions of section 775.087, Florida Statutes (1983). A defendant can be sentenced to the three-year mandatory minimum under this provision without such a specific finding by the jury. In my view, the trial court, in the context of sentencing a defendant, can make a finding from the evidence that a firearm was used without any express indication by the jury as to its use. I agree with the rationale and holding of the Fifth District Court of Appeal in Tindall v. State, 443 So.2d 362 (Fla. 5th DCA 1983), that where a defendant is charged with a crime which requires possession of a firearm to commit the crime or where the allegations and the proof lead to the inescapable conclusion that defendant possessed a firearm during the commission of the crime, the jury need not render a specific verdict finding such firearm possession in order for the trial court to impose the three-year minimum mandatory sentence under section 775.-087(2). This determination is part of the sentencing process and may be made by the trial court.

Accordingly, I would quash the decision of the Fourth District and reinstate the conviction and sentence for attempted third-degree murder, the felony reclassification, and the three-year mandatory minimum sentence.

EHRLICH, J., concurs.


author: FERGUSON, Judge. BARKDULL, Judge,

text:
    Pedro VELEZ and Mercedes Velez, his wife, Appellants, v. OXFORD DEVELOPMENT CO., d/b/a Turnberry Isle Country Club and Liberty Mutual Insurance Company, Appellees.
    No. 84-687.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.

      Klein, Oshinsky & Solomon and Michael Solomon, Hallandale, for appellants.
    Daniel & Hicks and Patrice A. Talisman; Richard E. Hardwick, Miami, for appellees.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   FERGUSON, Judge.

Plaintiff-employee appeals an order entered in a personal injury action granting defendant-employer’s motion for summary judgment on a finding that the plaintiff knowingly accepted workers’ compensation benefits. In defense of the judgment, the employer presents two theories: (1) the plaintiff is barred from instituting a tort action by the doctrine of election of remedies, and (2) the plaintiff waived the right of is estopped to bring a tort action. We accept neither proposition.

Plaintiff, a kitchen employee of Turnber-ry, was injured when a fellow employee struck him with a golfcart during his unpaid one-half hour lunch period. While hospitalized, plaintiff received benefit checks from Liberty Mutual, the employer’s workers’ compensation insurer. In addition to paying approximately one year’s benefits for temporary total disability, Liberty Mutual voluntarily paid all of plaintiff’s medical bills. Plaintiff never filed a claim for benefits. When he returned to work all benefits were terminated. Plaintiff and his wife instituted this action in the circuit court, alleging negligence on the part of Turnberry in leaving keys in the ignition of a golfcart which was recklessly operated by an employee. The summary judgment entered on that complaint is the subject of this appeal.

The employer may not rely on the election of remedies doctrine to support the judgment. Election of remedies by its very terms presupposes that a plaintiff has at least two viable theories upon which recovery may be had. That is not the case here. Where an injury is suffered in the course and scope of employment, the Workers’ Compensation Law, Chapter 440, Florida Statutes (1983), is the exclusive remedy for recovery against the employer. See § 440.-11. That remedy is not available, however, where an injury is suffered outside the course of employment. See § 440.09(1). Plaintiff, a semi-illiterate, never elected to file a claim against his employer pursuant to the Workers’ Compensation Law. His single decision, after retaining counsel (because the employer terminated benefit payments), was to commence a tort action, alleging that the injury was not within the course of his employment. The trial court granted summary judgment for the employer without determining that issue, finding that plaintiff knowingly accepted workers’ compensation benefits. To these facts the election of remedies doctrine is totally inapplicable.

Williams v. Duggan, 153 So.2d 726 (Fla.1963), relied on by the employer, is inappo-site. In Williams, the employee at all times conceded that the injury occurred in the course of employment. Further, the holding in that case was that where the employee first filed a workers’ compensation claim against his employer, and such claim was dismissed as untimely, no election was made under Section 440.11 since the election was not “efficacious to some extent.” Id. at 727. In fact, most Florida eases dealing with election under the Workers’ Compensation Law involve employees who voluntarily filed claims against their employers, see, e.g., Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972), appeal dismissed, 411 U.S. 944, 93 S.Ct. 1923, 36 L.Ed.2d 406 (1973) (employee, by his voluntary act, chose to bind himself to provisions of Workers’ Compensation Law); Matthews v. G.S.P. Corp., 354 So.2d 1243 (Fla. 1st DCA 1978) (employee may not elect to file workers’ compensation claim and then file a tort action repudiating earlier position).

Coney v. International Minerals & Chemical Corp., 425 So.2d 171 (Fla.2d DCA 1983), also cited by the employer, is distinguishable. There, a wife who accepted death benefits under Workers’ Compensation Law owing to her husband's death, where no claim for workers’ compensation had been made, was held to be barred from bringing a tort action seeking punitive damages. In that case, the wife never contended that the injury occurred outside the scope of her husband’s employment. Cf. Holcomb v. Bullock, 353 Mich. 514, 91 N.W.2d 869 (1958) (where trial court found that plaintiff was independent contractor and not employee, Workers’ Compensation Act was not applicable and plaintiff had no right of election as to his remedy).

Not only did plaintiff lack an option in remedies, he in fact did not attempt to make any such election. The acceptance of benefits, without more, does not amount to a valid election. Martin v. United States, 566 F.2d 895 (4th Cir.1977). Martin is factually similar to the instant case. There, an army employee was injured in a collision with an army truck while she was returning from lunch. Plaintiff accepted workers’ compensation payments, which were paid voluntarily by her government employer. She then filed suit in federal court, seeking damages under the Federal Tort Claims Act. The fourth circuit court found that plaintiff was not injured in the course of her employment because (1) her lunch hour was her own time, (2) there were no restrictions on where she went or what she did, (3) she was riding in her own automobile, and (4) she was not doing any errands for her employer. On those facts the court held that plaintiff’s continued acceptance of compensation benefits did not evidence a conscious intent on her part to give up a tort claim. The court further found it unreasonable to expect a plaintiff, who is understandably uncertain of a future recovery in tort, to refuse compensation payments which are voluntarily made. A double recovery is easily avoided by reducing any tort damages awarded by the amount of payments already received. Accord Freeman v. Norfolk and Western Railway Co., 596 F.2d 1205 (4th Cir.1979) (acceptance of benefits under federal Longshoremen’s and Harbor Workers’ Compensation Act is not binding election to forego tort claim under Federal Employers’ Liability Act); Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250 (Alaska 1976) (fact that illegally employed child passively accepted workers’ compensation benefits does not indicate that valid election occurred). The latter case cites to a learned treatise by Professor Larson, where the author states:

Mere acceptance of some compensation benefits ... is not enough to constitute an election. There must also be evidence of conscious intent to elect the compensation remedy and to waive ... other rights. (Footnotes omitted). 554 P.2d at 254 (citing 2A A. Larson, Workmen’s Compensation § 67.22 (1976)).

Reliance on waiver or estoppel, the employer’s fail-back argument, is also misplaced. Waiver, like election of remedies, implies a conscious intent on the part of the employee to choose compensation benefits over a tort action. See Whitney-Fidalgo Seafoods, Inc., 554 P.2d at 254 (no waiver of other rights without valid election to pursue remedy of workers’ compensation).

Courts from other jurisdictions have similarly rejected the notion that passive acceptance of compensation benefits works to estop an employee from bringing suit in tort. See, e.g., Freeman, 596 F.2d at 1208 (no estoppel where employer has not been harmed and employee has not been enriched); Martin, 566 F.2d at 898-99 (no estoppel by employer’s unilateral decision to pay compensation benefits); Holcomb, 91 N.W.2d at 872 (no estoppel without concealment or misrepresentation on part of employee). There is no Florida authority to the contrary.

Plaintiff suffered serious orthopedic and neurological injuries in the accident. He argues here that if his injuries had been within the scope of employment, under Workers’ Compensation Law, he would be entitled to continuing benefits for temporary partial disability and medical treatment, none of which are forthcoming. We agree that acquiescence by an employer to pay only a part of what would be its obligation under the Workers’ Compensation Law does not satisfy the requirements for es-toppel. See Martin, 566 F.2d at 898.

If it is determined, after a hearing on the merits, that the plaintiff was injured in the course of his employment, then the employer’s obligation is to pay only such additional benefits as to which plaintiff can prove entitlement. If the accident was not in the course of employment and plaintiff can prove some vicarious fault of his employer in a tort action, the employer is entitled to set off the value of benefits paid out of proceeds from the tort action. See Martin, 566 F.2d at 899.

The employer has not carried its burden to demonstrate conclusively the nonexistence of genuine issues of law and fact, therefore, summary judgment was inappropriate. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded.

BARKDULL, Judge,

dissenting.

I respectfully dissent. The appellant Velez is a kitchen helper employee of Turn-berry who was injured as a result of another employee accidently striking him with a golfcart during Velez’s unpaid one-half lunch hour. While in the hospital Velez began receiving workers’ compensation checks from Liberty Mutual, Turnberry’s insurer. All of his medical bills were paid by Liberty, as well as a year’s worth of disability payments. Velez never filed a notice of injury or a claim for workers’ compensation benefits. He never prosecuted any claim for the benefits — he merely accepted same. The checks ceased when Velez was able to return to work. Thereafter, Velez and his wife filed a complaint in the Circuit Court alleging negligence against Turnberry and Liberty Mutual based upon Turnberry negligently leaving the keys in the ignition of a golfcart. The trial court entered a final summary judgment which stated:

“Turnberry Isle Country Club is entitled to a Summary Judgment as a matter of law, based upon its finding that the plaintiff’s knowingly acceptance of workers’ compensation benefits precludes this claim ...”

I would agree. Williams v. Duggan, 153 So.2d 726 (Fla.1963); 1 Fla.Jur.2d Actions, Section 148; Section 440.11(1), Florida Statutes (1981); 25 Am.Jur.2d, Elections of Remedies, Section 21.


text:
    Jerry FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 84-666.
    District Court of Appeal of Florida, Second District.
    June 1, 1984.
   PER CURIAM.

Affirmed. See Hitchcock v. State, 432 So.2d 42 (Fla.1983).

RYDER, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    In re ESTATE OF Emma G.W. VOSBURGH, Deceased. William Reed VOSBURGH, Jr., Appellant, v. Lester George WARD, William Ward, and Harvey Schonbrun, as Administrator Ad Litem, Appellees.
    No. 83-2548.
    District Court of Appeal of Florida, Second District.
    June 22, 1984.
    Rehearing Denied Sept. 19, 1984.
    Susan Vernon Mikul of Albury, Morgan & Hendrick, P.A., Key West, for appellant.
    H. Eugene Johnson, Tampa, for appel-lees Lester George Ward and William Ward.
    Harvey Schonbrun of Harvey Schonbrun, P.A., Tampa, for appellee Harvey Schon-brun, as Adm’r Ad Litem.
   PER CURIAM.

Affirmed.

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

ON MOTION FOR REHEARING

PER CURIAM.

Appellant incorrectly suggests in his motion for rehearing that this court held that a will could not be set aside on the basis of a nonbeneficiary’s exercise of undue influence. Rather, the rationale for our affirmance was based on a determination that appellant’s bare allegations of undue influence by a nonbeneficiary were insufficient to state grounds for relief.

Accordingly, appellant’s motion for rehearing is denied.

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


text:
    STATE of Florida, Petitioner, v. Maureen BENNETT, Respondent.
    No. 83-2572.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for petitioner.
   PER CURIAM.

We treat this appeal as a petition for writ of certiorari. Fla.R.App.P. 9.040(c). The petition for writ of certiorari is denied.

RYDER, C.J., and SCHEB and OTT, JJ., concur.


text:
    Bobby DIETZ and Mary Dietz, Appellants, v. ASGROW FLORIDA COMPANY, a subsidiary of the Upjohn Company, Appellee.
    No. 84-521.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    John M. Potter, Clewiston, for appellants.
    Raymond A. Alley, Jr., of Trinkle, Red-man, Alley & Moody, P.A., Brandon, for appellee.
   PER CURIAM.

Affirmed. See Southeastern Office Supply v. Barley, 427 So.2d 1139 (Fla. 5th DCA 1983) (a contractual venue agreement constitutes a waiver of venue on grounds of convenience, residency, location of property, or place of accrual of action.)

BOARDMAN, A.CJ., and DANAHY and LEHAN, JJ., concur.


text:
    Catherine L. HUGHES, Appellant, v. Charles E. EDWARDS, Appellee.
    No. 84-524.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Stanley M. Miller, Dunedin, for appellant.
    Peggy Burke BeVille of Peacock & Cope, P.A., Clearwater, for appellee.
   PER CURIAM.

Affirmed. See Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978); United Services Automobile Association v. Johnson, 428 So.2d 334 (Fla. 2d DCA 1983).

RYDER, C.J., and SCHEB and OTT, JJ., concur.


text:
    Hugh RUCKDESCHEL and Janet Ruckdeschel, his wife, Appellants, v. FIREMAN’S FUND INSURANCE COMPANY, Appellee.
    No. 83-2259.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.

      Edwin Peck, St. Petersburg, for appellants.
    Dennis E. Dabroski of Lyle and Skipper, P.A., St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. See Cape Development Co. v. City of Cocoa Beach, 192 So.2d 766 (Fla.1966); Mann v. Price, 434 So.2d 943 (Fla. 2d DCA 1983). See also Safeco Insurance Co. v. Rochow, 384 So.2d 163 (Fla. 5th DCA 1980); Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979).

RYDER, C.J., and CAMPBELL and LE-HAN, JJ., concur.


author: PER CURIAM. PER CURIAM. FERGUSON, Judge

text:
    The STATE of Florida, Appellant, v. Jean Flynn SANCHEZ and Norberto Sanchez, Appellees.
    No. 83-2841.
    District Court of Appeal of Florida, Third District.
    July 24, 1984.
    Rehearing Denied Nov. 6, 1984.
    Jim Smith, Atty. Gen., and Penny H. Brill and Carolyn Snurkowski, Asst. Attys. Gen., for appellant.
    Keith Haymes, Miami, for appellees.
    Before HUBBART and FERGUSON, JJ., and PEARSON, TILLMAN (Ret. Associate Judge).
   PER CURIAM.

This is an appeal by the state from an order suppressing certain evidence seized by the police pursuant to a duly executed search warrant. The search warrant was issued and executed prior to January 3, 1983, the effective date of the amendments to Article I, Section 12 of the Florida Constitution, which require that the search and seizure right secured thereby “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” In their motion to suppress filed below, the defendants attacked the affidavit in support of the search warrant as failing to state probable cause for the issuance of the said warrant. The trial court agreed and suppressed the evidence. We reverse.

We conclude that, based on the “totality of the circumstances,” the affidavit in question states probable cause for the issuance of the subject search warrant under the Fourth Amendment to the United States Constitution. Illinois v. Gates, 462 U.S. 213,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We reach the same conclusion with respect to Article I, Section 12 of the Florida Constitution (prior to the 1983 amendments). Although not required to follow Illinois v. Gates, supra, in interpreting Article I, Section 12 of the Florida Constitution (prior to the 1983 amendments), we choose to do so in this case because Florida courts have traditionally considered United States Supreme Court decisions interpreting the Fourth Amendment — here Illinois v. Gates, supra — “very persuasive” in interpreting the above-stated provision of the Florida Constitution. Thurman v. State, 116 Fla. 426, 435, 156 So. 484, 487-88 (1934); Leveson v. State, 138 So.2d 361, 364 (Fla. 3d DCA 1962), cert, discharged, 151 So.2d 283 (Fla.1963); Houston v. State, 113 So.2d 582, 584-85 (Fla. 1st DCA 1959). We further reject the defendant’s contention that Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spi-nelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) — overruled by Illinois v. Gates, supra — were ever part of the substantive law of Florida under Article I, Section. 12 of the Florida Constitution. Compare Blue v. State, 441 So.2d 165, 167 n. 2 (Fla. 3d DCA 1983).

The order under review is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration after rehearing, we adhere to the opinion and decision of July 24, 1984.

FERGUSON, Judge

(dissenting).

I would affirm. Contrary to the majority’s holding, the Aguilar-Spinelli probable cause standard was incorporated into the substantive law of the state, see Antone v. State, 382 So.2d 1205 (Fla.), cert, denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); Andersen v. State, 274 So.2d 228 (Fla.), cert, denied, 414 U.S. 879, 94 S.Ct. 150, 38 L.Ed.2d 124 (1973); St. John v. State, 356 So.2d 32 (Fla. 1st DCA 1978), and continued to be the law of the state until the 1983 constitutional amendment. The facts of this case are controlled by pre-amendment law, State v. Lavazzoli, 434 So.2d 321 (Fla.1983) (article 1, section 12, Florida Constitution, as amended in 1983, operates prospectively only), which requires that the fruits of the search be suppressed.


text:
    ONE 1978 OLDSMOBILE COUPE, LICENSE TAG NO. GSM886, VEHICLE IDENTIFICATION NO. 3R47F8642434, Appellant, v. STATE of Florida ex rel. CITY OF WINTER HAVEN, Florida, a municipal corporation, Appellee.
    No. 84-118.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Jesse J. Bennett, Jr., of Bennett & Bennett, P.A., Winter Haven, for appellant.
    Neal E. Young of Wheeler & Traviss, P.A., Winter Haven, for appellee.
   PER CURIAM.

Affirmed. One 1976 American Jeep v. State ex rel. City of Largo, 427 So.2d 364 (Fla. 2d DCA 1983); In re Forfeiture of 1979 Toyota Corolla, 424 So.2d 922 (Fla. 4th DCA 1982).

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


text:
    David A. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 83-2464.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and William I. Munsey, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Fla.R.Crim.P. 3.170(f); Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983); State v. Braverman, 348 So.2d 1183 (Fla. 3d DCA 1977); Riddle v. State, 212 So.2d 122 (Fla. 2d DCA 1968).

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


text:
    Latarsha GAINER, Appellant, v. STATE of Florida, Appellee.
    No. 84-39.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Zambuto v. State, 413 So.2d 461 (Fla. 4th DCA 1982).

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


text:
    Gale Frederick KIRKPATRICK, Appellant, v. STATE of Florida, Appellee.
    No. 84-337.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    John F. Rudy, II, of Bush, Ross, Gardner, Warren & Rudy, Tampa, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Francis Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See section 943.058(2)(d), Florida Statutes (1983).

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