author: EHRLICH, Judge.

text:
    STATE of Florida, ex rel. Jim SMITH, and Louie Wainwright, Relators, v. Bennett BRUMMER and Robin H. Greene and Rory S. Stein, Respondents.
    No. 64280.
    Supreme Court of Florida.
    Jan. 12, 1984.
    Jim Smith, Atty. Gen., Tallahassee, Penny H. Brill and Michael J. Neimand, Asst. Attys. Gen., Miami, for relators.
    Parker D. Thomson and Susan H. Aprill of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Miami, for respondents.
   EHRLICH, Judge.

Relator, Attorney General Jim Smith, brings this petition for writ of quo warran-to to divest respondent, the Public Defender for the Eleventh Judicial Circuit in and for Dade County, Florida, and two assistant public defenders, of authority to accept an appointment by a federal judge to represent indigents in federal court. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const.

On August 5, 1981, Carlton Harris was sentenced, in Dade County, for attempted robbery, attempted first degree murder and aggravated assault. Respondent Bennett Brummer, as public defender, was appointed to represent Harris on direct appeal to the Third District. Assistant Public Defender Robin Greene, also a respondent, handled the appeal. Harris’s conviction and sentence were affirmed May 11, 1982, and rehearing was denied on June 17, 1982. Neither Brummer nor Greene undertook any further representation of Harris in any state or federal court. On May 13, 1983, Harris, pro se, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. Harris did not request appointed counsel. The United States Magistrate recommended denial, and Harris filed objections. The United States District Judge ordered a hearing on the matter and, after consulting the state public defender’s office, appointed respondent, the Public Defender for the Eleventh Judicial Circuit, to represent Harris in the federal court.

Mario Machin was convicted of trafficking in cannabis and possession with intent to sell on November 10,1981, in Dade County. Respondent Brummer was appointed to represent Machin on appeal and the case was handled by Rory Stein, an assistant public defender and respondent here. Ma-chin’s conviction was affirmed on September 2, 1982. Neither Brummer nor Stein took further action. On November 2, 1982, Machin, pro se, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. He did not request appointment of counsel. The United States Magistrate recommended further proceedings on Machin’s petition, and the United States District Judge set a hearing. After consultation with respondent, the district judge appointed the Public Defender for the Eleventh Judicial Circuit to represent Machin pro bono in the federal court.

Relator then filed a motion and supporting memorandum of law to vacate the appointment of the public defender in the federal court. The motion attacked the appointment as beyond the powers granted by the federal statute. Counsel is provided to indigent clients in federal courts pursuant to 18 U.S.C. § 3006A (1976). That statute specifies that attorneys appointed be drawn from the federal public defender’s office or from a panel of private attorneys which may include members of nonprofit legal aid organizations. Relator argued that the respondents were not, and by statute could not be, members of the panel of private attorneys.

The petition now before us was filed before the federal court ruled on the motion to vacate. The motion was denied on the grounds that the state public defender was authorized to continue representation of indigent clients in federal court by this Court’s decisions in Graham v. State, 372 So.2d 1363 (Fla.1979) and State ex rel. Smith v. Brummer, 426 So.2d 532 (Fla.1983), cert. denied,-U.S. ——, 104 S.Ct. 90, 78 L.Ed.2d 97 (1983).

It must be noted at the outset that the issue of the federal judge’s power to appoint respondent under 18 U.S.C. § 3006A is not before us. We lack jurisdiction over that matter and advance no opinion as to the statutory validity of that appointment. The petition we address here raises only the issue of the state public defender’s authority to accept such an appointment.

The Office of the Public Defender is a creature of the state constitution and of statute, not of the common law. The State of Florida, in order to meet its responsibility to provide the assistance of counsel guaranteed to defendants against state action by the sixth amendment of the United States Constitution, made applicable to states through the fourteenth amendment, has created this office in article V, section 18 of the Florida constitution. The functioning of that office is regulated by statute, sections 27.50-59, Florida Statutes (1981), and by court rule. Florida Rule of Criminal Procedure 3.111. Section 27.51 sets forth the duties of the public defender: To represent any indigents who face possible loss of liberty, or any indigent minor alleged to be a delinquent child, and to handle felony appeals in the state or federal courts.

Nothing in either the statute or the rule can fairly be construed to authorize appointment of the Florida public defender by any entity other than a Florida court. Graham and Smith v. Brummer I did not address the issue of appointment and are at best tangentially related to the question now before us.

Although we find that respondents have exceeded their statutory authority in accepting the appointment, we also note that the appointment has been made and accepted. Were we to issue the writ of quo warranto, the respondents might find themselves in an untenable position before the federal court. Rather than risk that outcome, we at this point decline to issue the writ, but we commend this construction of applicable state law to the consideration of both the respondents and the United States District Judge for the Southern District of Florida with every confidence that the appointment will be vacated.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MeDONALD and SHAW, JJ., concur.

      . We note, however, that the federal judge consulted with the public defender’s office before making the appointment and relied on the representations of that office that it was able and authorized to accept the assignment both in making the original appointment and in denying the motion to vacate.

      . Section 27.51, Florida Statutes (1981), provides in pertinent part:
      27.51 Duties of public defender.—
      (1) The public defender shall represent, without additional compensation, any person who is determined by the court to be indigent as provided in s. 27.52 and who is:
      (a) Under arrest for, or is charged with, a felony;
      (b) Under arrest for, or is charged with, a misdemeanor, a violation of chapter 316 which is punishable by imprisonment, or a violation of a municipal or county ordinance in the county court, unless the court, prior to trial, files in the cause a statement in writing that the defendant will not be imprisoned if he is convicted;
      (c) Alleged to be a delinquent child pursuant to a petition filed before a circuit court; or
      (d) Sought by petition filed in such court to be involuntarily hospitalized as a mentally ill or mentally retarded person.

      (4) The public defender for a judicial circuit enumerated in this subsection shall, after the record on appeal is transmitted to the appellate court by the office of the public defender which handled the trial and if requested by any public defender within the indicated appellate district, handle all felony appeals to the state and federal courts required of the official making such request:


source: Caselaw Access Project

author: PER CURIAM. SHAW, Justice,

license: Public Domain

text:
    TRAVELERS INSURANCE COMPANY, Petitioner, v. Helen A. BRUNS, etc., Respondent.
    No. 63501.
    Supreme Court of Florida.
    Jan. 12, 1984.

      Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for petitioner.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks review of Travelers Insurance Company v. Bruns, 429 So.2d 317 (Fla. 4th DCA 1983), on the ground of direct and express conflict with P & H Vehicle Rental and Leasing Corp. v. Garner, 416 So.2d 503 (Fla. 5th DCA 1982), and Alamo Rent-A-Car, Inc. v. Summers, 404 So.2d 131 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

This case arose from an action against Bruns (respondent) and her alleged insurer, Travelers Insurance Company (petitioner). Insurance coverage was disputed and the trial court issued a summary judgment against petitioner that coverage existed. Petitioner sought review under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). The district court of appeal held that the summary judgment of insurance coverage did not determine the issue of liability in favor of a party seeking affirmative relief and, thus, was nonappealable under rule 9.130. In so holding, the district court aligned itself with the first and third district courts of appeal decisions in U.S. Fidelity and Guaranty Co. v. Sloan, 410 So.2d 549 (Fla. 1st DCA 1982) and Ogur v. Mogel, 390 So.2d 105 (Fla. 3d DCA 1980). The district court recognized and certified express conflict with Summers and Garner. For the reasons below, we approve the district court decision and disapprove Summers and Garner.

Rule 4.2, Interlocutory Appeals, the 1962 predecessor to rule 9.130, authorized review of interlocutory orders which granted partial summary judgment on liability in civil action. This rule was interpreted to permit appeals from partial summary judgments on the issue of insurance coverage. Auto Owners Insurance Co. v. West, 260 So.2d 534 (Fla. 3d DCA 1972), reversed on other grounds, 276 So.2d 31 (Fla.1973); Travelers Insurance Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972). Petitioner concedes that the wording of the present rule differs from its predecessor, but asserts that we should adopt Summers and Garner and permit continued review of such orders, because this would vindicate the intent of the framers of the present rule. Petitioner’s argument is contrary to the plain meaning of the rule and of the committee notes to the 1977 revision. The resolution of a coverage issue concerning an alleged insured and insurer clearly does not determine the issue of liability in favor of a party seeking affirmative relief. The committee notes also state that the revised rule substantially alters current practice. The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment. We approve the decision of the district court and disapprove Summers and Garner.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and EHRLICH, JJ., concur.

SHAW, J., concurs specially with an opinion.

ADKINS, J., concurs in result only.

McDONALD, J., dissents.

SHAW, Justice,

specially concurring.

I agree with the majority that the plain meaning of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) does not permit review of the nonfinal order holding that coverage exists. I am impressed, however, by the pragmatism of petitioner’s public policy argument:

Immediate review of coverage determination would not result in a duplication of judicial effort but rather would conserve it. Often the issues of negligence and damages can be resolved by the parties once a definitive decision has been reached on the issue of coverage. Delaying final adjudication of coverage matters is an obstacle to settlement and a burden upon the judicial system and litigants that should not be countenanced.

Petitioner’s brief at page 5.

This argument has merit. It is striking for two reasons: (1) it is being urged on this Court by a major insurer who is only potentially liable, but recognizes that the first order of business in a suit involving three real parties in interest is to determine who is opposing whom — not even school boys first play the school yard ballgame and then retroactively choose sides. It is difficult to see how orderly litigation can proceed without this initial determination; (2) it is directly contradictory to the argument urged on this Court by other major insurers and friends of the Court in Vanbibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), that section 627.7262, Florida Statutes (Supp.1982), which prohibits even the joinder of the alleged insurer until liability has been established against the alleged insured, should be upheld.

The incident here occurred prior to the effective date of section 627.7262 when it was at least possible to bring all the real parties in interest before the trial court and obtain a judgment as to the insurance coverage which aligned the parties. It will not be possible in the future as the revised section 627.7262 takes hold. Thereafter, the relatively minor problem here of obtaining review of a nonfinal order aligning the parties and facilitating the litigation will be substantially increased. Aside from the constitutional infirmities of section 627.7262 which I delineated in my dissent to Van bib-ber, I am convinced that the statute will produce a procedural quagmire for both trial and appellate courts to the detriment of all the parties in interest. The application of section 627.7262 to tort suits where coverage is disputed can result in three separate actions. In the first action plaintiff A will sue defendant B (alleged insured) on the issues of negligence and damages. Simultaneously, if coverage is disputed, either B or C (alleged insurer) will be obliged to seek a declaratory judgment against the other in a second action. Even though A has a vital interest in the coverage issue, A will be unable to enter the action or appeal the judgment because of the prohibition in section 627.7262. (Alternatively, B could bring a third-party action against C in the first action but this would not change the rights or positions of the parties.) If A then wins against B in the first action, C wins against B in the second action, and A then sues C in a third action, as he is entitled to do under section 627.7262, we will have the ingredients of a very interesting law school problem, particularly if one or the other of the actions involving B is a “sweetheart” suit which B does not aggressively or competently pursue. The procedure has the earmarks of a very complicated tournament which transforms a common everyday occurrence, a suit on an automobile accident, into a cancerous intricacy of the law. I venture no opinion as to what the judicial system’s answer to all this will be, but eagerly anticipate hearing it.


author: BOYD, Justice.

text:
    Linroy BOTTOSON, Appellant, v. STATE of Florida, Appellee.
    No. 60708.
    Supreme Court of Florida.
    Dec. 15, 1983.
    Rehearing Denied Feb. 7, 1984.

      A. Thomas Mihok of Dempsey & Slaughter, Orlando, for appellant.
    Jim Smith, Atty. Gen. and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for appellee.
   BOYD, Justice.

This cause is before the Court on appeal from a final judgment of conviction of murder in the first degree and a sentence of death. This Court has jurisdiction of the appeal under article V, section 3(b)(1) of the Florida Constitution.

Linroy Bottoson was convicted for the first-degree murder of Catherine Alexander, the postmistress at Eatonville, in Orange County. The victim was last seen alive leaving the post office at around noon on October 26, 1979, with a tall black man. As she was leaving, she whispered to two bystanders to call the police and tell them that the man was stealing. United States postal inspectors were called, and they discovered that some postal money orders were missing. They began to suspect appellant and his wife when they learned that appellant’s wife had tried to cash one of the missing postal money orders at her bank that very afternoon. Appellant’s residence was placed under surveillance Monday evening, October 29, as the postal inspectors applied to a United States magistrate for an arrest warrant. The magistrate granted the application but the actual preparation of the warrant was postponed until the following day because there was no one available to draft and type it. Upon learning of the granting of the application, several postal inspectors entered appellant’s home around 10:30 p.m. and arrested appellant and his wife. The next day the postal inspectors searched appellant’s home pursuant to a search warrant and found the missing money orders and the victim’s shoes. In all the confusion the arrest warrant was never drafted and formally issued. The victim’s body was found on the side of a dirt road the same night appellant was arrested.

At the trial three persons who were present at the abduction testified. Though none of them could identify appellant as the man with whom the victim was seen leaving the post office, they all identified from a photograph the car in which she was taken away. It was later shown that the car was rented to appellant at the time of the abduction. A postal official identified the money orders found in appellant’s home and could trace them to the machine at the Eatonville post office. There was also evidence of appellant’s having deposited some of the stolen money orders in his bank account.

The medical examiner testified that the victim had been stabbed fourteen times in the back and once in the abdomen. He said that she died from crushing injuries to the chest and abdomen which were consistent with being run over by an automobile. There was expert testimony that hair samples and clothing impressions found on the undercarriage of appellant’s car, a brown 1973 Chevelle, were consistent with having come from the victim’s body and clothing. There was also expert evidence that clothing fibers similar to those in the victim’s clothes and a tip of the victim’s fingernail were found inside the car. Furthermore a dog handler testified that one of his dogs who was familiarized with the victim’s scent found the victim’s scent inside the car rented by appellant and underneath the length of the brown Chevelle owned by appellant. He also testified that another dog familiarized to appellant’s scent indicated appellant’s scent was present at the location where the victim’s body was found.

Appellant’s former wife, who was married to him at the time of the murder, testified that on October 26, appellant was away from home in the rented car at around noon. When he returned he gave her a postal money order which she deposited at the bank that afternoon. She testified that on the following Monday, October 29, she did not see appellant from 1:30 p.m. to 10:00 p.m. and that during that time he had the brown Chevelle.

A minister who visited appellant in jail testified that appellant admitted killing the victim. Also, during the trial the prosecuting attorney announced that the state had just learned from appellant’s cellmate of some incriminating statements made by appellant. The cellmate was called as a witness and he testified that appellant admitted to killing Mrs. Alexander and that appellant had said “the best witness is a dead witness.”

Appellant testified in his own defense. He claimed that on October 26, he loaned his rented car to a man named Ernest who gave him the postal money orders upon returning the car. He said that over the weekend he became suspicious of a connection between the money orders and the reported disappearance of the postmistress and went to see Ernest about it on Monday night. Appellant testified that Ernest admitted the money orders came from the Eatonville post office and then asked to borrow his car to give an elderly lady a ride home. Appellant said that he gave Ernest the keys to his brown Chevelle and that when Ernest returned Ernest admitted to having just killed Mrs. Alexander. Appellant said that he insisted on seeing for himself, so Ernest drove him out to the site of the murder where appellant got out of the car to look at the body.

The jury found appellant guilty of first-degree murder. In accordance with the jury’s recommendation, the trial judge sentenced appellant to death.

In this appeal, appellant raises several points concerning the admissibility of the statements he made to the minister and the cellmate, the constitutionality of the search of his residence, the sufficiency of the evidence, the court’s denial of his motions for additional counsel and to exhume the victim’s body, the court’s refusal to give a requested instruction, and the appropriateness of the death penalty. We resolve all of these issues against appellant and therefore affirm.

While awaiting trial appellant developed a friendship with another jail inmate named Pertrell Kuniara. According to Kuniara’s testimony, appellant told Kun-iara he killed the victim by stabbing her and running over her with a car because “dead witnesses are the best witnesses.” Kuniara relayed this information to the state attorney’s office and was advised not to question appellant further about the case. Despite this admonition Kuniara continued to discuss appellant’s case with him. Appellant now claims that Kuniara was acting as a governmental informant and that the evidentiary use of his statements to Kuniara violated his sixth amendment right to counsel, relying on United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). But as we have noted in Barfield v. State, 402 So.2d 377 (Fla. 1981), Henry does not apply to unsolicited statements made to a cellmate who is neither paid nor instructed by the government. In this case there was an insufficient connection between Kuniara and the state to establish that Kuniara was a government agent. Moreover, there is no proof that Kuniara actually solicited the incriminating statements from appellant. Therefore appellant’s sixth amendment right to have counsel present during questioning did not come into play.

During their discussions, Kuniara suggested to appellant that he talk to Reverends Judge and Champion to enlist their support in negotiating a plea. Appellant requested that the two ministers visit him. When they arrived he handed them two written statements confessing to the murder and requesting leniency. They delivered these statements to the state attorney’s office. Appellant now argues that these statements were inadmissible in evidence as either privileged communications or as statements made in connection with an offer to plead guilty. Appellant’s second contention refutes his first. By his own admission he intended for these statements to be relayed to the state attorney’s office. Since they were intended to be communicated to a third person, the statements were not confidential and were therefore not privileged communications. See § 90.505, Fla.Stat. (1981).

As for his second argument, we agree that any statement made in connection with a plea or an offer to plead is inadmissible. § 90.410, Fla.Stat. (1981). However, we do not believe that unsolicited, unilateral statements are under the aegis of this evidentiary statute. In construing the similarly worded Federal Rule of Criminal Procedure 11(e)(6), the federal courts have held that before excluding statements made during a plea negotiation a “trial court must apply a two-tiered analysis and determine, first, whether the accused exhibits an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.” United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978) (en banc); see also United States v. O’Brien, 618 F.2d 1234 (7th Cir.), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980); United States v. Pantohan, 602 F.2d 855 (9th Cir. 1979). In this case appellant’s expectation that he was involved in a plea negotiation was not reasonable. The ministers were not agents for the state nor did they pretend to be. Appellant gave them his statements before there was any discussion as to the role they would play in helping him to obtain leniency. Thus we fail to find any error in the admission of these statements into evidence.

Appellant’s third point on appeal is that the postal inspector’s entry into his house without an arrest warrant violated his state constitutional right to be free from unreasonable seizure. He points out that subsequent to his arrest, the United States Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), held that a warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest was unconstitutional. We do not find Payton to be applicable because this was not a routine felony arrest. As far as the officers knew the postmistress was still alive. Hence there was probable cause and exigent circumstances justifying the warrant-less arrest of appellant within his home.

We have reviewed the entire record and find that there is more than enough evidence to support the jury’s verdict. We also find no merit in appellant’s assertions that the trial court erred in denying his motions for additional counsel and to exhume the victim’s body.

We now proceed to the sentencing phase of the trial. At the sentencing hearing the state called only one witness, an FBI agent who had investigated appellant for bank robbery in California. The agent identified an exhibit as papers relating to appellant’s conviction. The state inadvertently neglected to offer the exhibit into evidence. After the jury had retired to deliberate, the prosecuting attorney brought to the court’s attention that the exhibit had somehow been included with the materials given to the jury. The defense moved to have the penalty phase retried before a new jury. The judge ruled it was harmless error since he would have let the exhibit in if it had been offered into evidence.

We agree with appellant that it is error for the jury to be exposed to materials that have not been properly introduced into evidence. However, before a mistrial can be granted, it must be shown that the existence of an unauthorized object in the jury room has somehow prejudiced the defendant. E.g., State v. Turrentine, 122 Ariz. 39, 592 P.2d 1305 (Ct.App.1979); Vaughn v. United States, 367 A.2d 1291 (D.C.1977); State v. Gander, 220 Kan. 88, 551 P.2d 797 (1976); Brittle v. Commonwealth, 222 Va. 518, 281 S.E.2d 889 (1981); Johnson v. State, 75 Wis.2d 344, 249 N.W.2d 593 (1977). There is no prejudice where the information conveyed by the unauthorized materials merely duplicates evidence that had been properly presented to the jury at the trial. State v. Sumpter, 655 S.W.2d 726 (Mo.Ct.App.1983); Edwards v. State, 637 P.2d 886 (Okl.Cr.App.1983). In this case the unadmitted exhibit that was inadvertently allowed to go into the jury room merely reproduced the testimony of the FBI agent, which the jury had already heard. We therefore hold that the trial court did not abuse its discretion in denying the motion for mistrial.

Appellant argues that the trial court erred in not instructing the jury that it could recommend life imprisonment even if it found the existence of aggravating circumstances and no mitigating circumstances. Since appellant did not object to the instructions given, he has waived this objection. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).

Finally we hold that the trial judge properly imposed the death sentence. As aggravating circumstances, the trial judge found that appellant had previously been convicted of a crime involving the threat of violence; that the crime was committed during the commission of a felony; that it was committed for the purpose of avoiding arrest; and that it was especially heinous, atrocious, or cruel. He found no mitigating circumstances.

All of these aggravating circumstances were proven beyond a reasonable doubt. Appellant had previously been convicted of a bank robbery which inherently involves the use or threat of use of violence against another person. 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). Appellant concedes that the crime was committed during the commission of a robbery. That it was committed for the purpose of avoiding arrest was proven by appellant’s own statement to Kuniara that “dead witnesses are the best witnesses.” Finally that the victim was held captive for at least three days before being stabbed about fifteen times and then run over with a car renders this crime especially, heinous, atrocious, or cruel. These aggravating circumstances, considered in light of the nonexistence of any mitigating factors, clearly justified the trial court’s determination that a sentence of death is proper.

We therefore affirm the conviction for first-degree murder and the sentence of death.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OVERTON, McDonald and EHRLICH, JJ., concur.


text:
    Chester MAXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 60754.
    Supreme Court of Florida.
    Dec. 15, 1983.
    Rehearing Denied Feb. 7, 1984.

      R.E. Conner, Plantation, for appellant.
    Jim Smith, Atty. Gen. and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of conviction of first-degree murder and robbery and a sentence of death. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const.

The appellant, Chester Maxwell, and his co-defendant, Dale Griffin, were found guilty by a jury and convicted of the murder of Donald Klein. The evidence showed that Mr. Klein was playing golf with three friends at the Palmaire Country Club in Pompano Beach, Broward County, when Maxwell and Griffin approached. Griffin grabbed one golfer and held a knife to his throat while appellant pulled out a revolver. The assailants robbed three of the men of their money, the fourth golfer having nothing of value on his person. From Donald Klein appellant took a gold bracelet, a gold chain and some gold pendants. Appellant also demanded Mr. Klein’s gold ring. When Klein protested that his wife had given him the ring, appellant shot him in the chest. He died within minutes. Both the heart and the lungs were severely damaged by the bullet, which was a .22 caliber rifle bullet cut off at the nose so it would fit into the pistol’s chamber.

One of the victim’s golfing companions chose appellant from an identification lineup and at trial testified that he saw appellant shoot Donald Klein.

After the shooting appellant and Griffin ran from the area and that night they departed Broward County on a northbound Greyhound bus. Upon learning this, the Pompano Beach police communicated with the Ocala police, who boarded the bus when it stopped at the Ocala bus station. The Ocala police detained the pair and told them to claim their bags. Appellant and Griffin claimed one bag each, accompanied the officers to police headquarters, and consented to have their bags searched. At the time of their detention and questioning, the two suspects had in their possession the gold items taken from Donald Klein. These items were identified by his widow at the trial.

Suspecting that appellant and Griffin had left possessions on the bus when they were detained for questioning, the Pompano Beach police sought the assistance of the Tallahassee police. When the bus arrived in Tallahassee, police officers arranged to have all the passengers and their luggage removed from the bus. When the bus was emptied, one brown suitcase remained unclaimed. The officers looked inside and found a knife and a .22 caliber pistol. Subsequent examination revealed that the six-chambered pistol contained five .22 caliber rifle bullets with their forward ends cut off.

Prior to trial appellant filed a motion to exclude from evidence the items found in the suitcase recovered in Tallahassee on the ground that its search without a warrant was unconstitutional. The trial court denied the motion on the ground that appellant lacked standing to object to the evidence on constitutional grounds. The jury found appellant and his co-defendant guilty of first-degree murder and three counts of armed robbery. A separate sentencing proceeding was held, and the jury recommended a sentence of death for appellant and a sentence of life imprisonment for co-defendant Griffin. The judge followed both recommendations.

In this appeal, appellant argues that the trial court erred in denying the motion to suppress; in denying the motion to exclude television cameras from court without holding an evidentiary hearing; in excusing for cause a prospective juror who expressed qualms about the death penalty; by not asking the jury foreman whether the sentencing recommendation was concurred in by a majority; in denying a motion to compel the state to disclose the names of the witnesses it planned to present at the sentencing hearing; and in not furnishing defense counsel with the presentence investigation report in time to prepare for rebuttal. Since we find none of these arguments to be substantiated, we affirm appellant’s convictions. We have also reviewed the sentence of death and find it to be appropriate.

Appellant argues that the search, without a warrant, of the suitcase taken from the Greyhound bus in Tallahassee violated his right to be free from unreasonable searches and seizures under the Fourth Amendment and that therefore the articles seized from within the suitcase should have been excluded from evidence. The evidence showed, however, that when appellant and Griffin were detained for questioning in Ocala they each claimed one suitcase but they left the third suitcase on the bus. Thus they abandoned all posses-sory interests and expectations of privacy in the suitcase. The subsequent recovery and examination of the suitcase by law enforcement authorities was therefore not a search within the meaning of the Fourth Amendment. The retrieval and retention of the suitcase therefore could not have violated the constitutional right of appellant to be free in his person, home, papers and effects from unreasonable searches and seizures. See United States v. Jackson, 544 F.2d 407 (9th Cir.1976); United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc); State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980); Riley v. State, 266 So.2d 173 (Fla. 4th DCA 1972).

Next appellant claims that the trial court erred in denying his motion to exclude the electronic media from the courtroom without holding an evidentiary hearing. We enunciated the test for excluding electronic media coverage of courtroom proceedings in In re Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 779 (Fla.1979):

The presiding judge may exclude electronic media coverage of a particular participant only upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and such effect will be qualitatively different from coverage by other types of media.

In State v. Green, 395 So.2d 532 (FIa.1981), we stated that if the judge is called upon by a proper motion to make such a determination, an evidentiary hearing is required. “A proper motion should set forth facts that, if proven, would justify the entry of a restrictive order. General assertions or allegations are insufficient.” Id. at 538. The televising of a trial does not per se impinge on the right to fairness and impartiality. A motion to limit or exclude television coverage must attempt to show with specificity that it will deleteriously affect the trial. See Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981), aff'g, 366 So.2d 64 (Fla. 3d DCA 1978), cert. denied, 376 So.2d 1157 (Fla. 1979). Appellant concedes that his motion contained only general assertions, but argues that this failure was excusable because trial counsel did not know and could not have known prior to trial that the electronic media representatives would appear. This is not an adequate excuse for failing to seek relief before trial by a proper motion. Since our decision in Post-Newsweek, all persons in this state have had constructive if not actual notice that courtroom proceedings may be covered by the electronic media. Whether television and radio concerns will broadcast a particular courtroom proceeding in whole or in part is a matter solely within their control. Litigants and their attorneys are not entitled to notice that a trial will be broadcast, but presumably they are free to attempt to find out in advance. In any event, if the media representatives wish to provide such coverage, and the prospect of such coverage is a matter of concern to accused persons or their attorneys, they must bring their objections to the attention of the court by motion in time to allow for a proper pre-trial determination of the suitability of electronic media coverage.

As for appellant's argument that the trial court erred in excusing for cause a prospective juror who had expressed reservations or conscientious beliefs about the death penalty, we find this point has not been properly preserved for appeal since appellant’s trial counsel failed to pose a timely objection. Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); Brown v. State, 381 So.2d 690 (FIa.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981). Moreover, if we were to reach the merits of this point we would find no error because the juror in question was properly excused.

We also find that appellant has failed to preserve for appeal his argument that the trial court erred in not asking the jury foreman whether a majority of the jury concurred in the advisory recommendation of death. No such request was made at the trial. Appellant’s argument that the trial court was compelled to make such an inquiry upon its own motion is totally without merit.

Next appellant argues that the trial court erred in denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.220(a), for a list of witnesses and of tangible papers or objects the prosecutor intended to use at the sentencing hearing. Appellant contends the rule and due process require that the state disclose such information. This Court has held that one accused of a capital offense does not have a due process right to pre-trial notice of the aggravating circumstances the state intends to prove. Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); Menendez v. State, 368 So.2d 1278 (Fla.1979). See Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). As far as any procedural rights in the sentencing process which appellant may have had under Rule 3.220(a) are concerned, we find that there was no prejudicial error.

Appellant’s final argument is that the record does not show that his trial counsel received a copy of the presentence investí-gation report which the trial judge relied upon in imposing the death sentence. The state has supplemented the record with an affidavit from trial counsel that he did indeed receive a copy of the report before sentencing. We therefore find this point to be without merit.

Although appellant has not raised any objections concerning the judge’s findings with regard to the aggravating and mitigating circumstances, we are required to review the sentence of death to ensure that it has been properly imposed. § 921.141(4), Fla.Stat. (1981). In his sentence the trial judge found as aggravating circumstances that appellant had previously been convicted of a felony involving the use of violence, section 921.141(5)(b); that the capital felony was committed during the commission of a felony, section 921.141(5)(d); that it was committed for pecuniary gain, section 921.141(5)(f); that it was especially heinous, atrocious, or cruel, section 921.-141(5)(h); and that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification, section 921.141(5)(i). He found no mitigating circumstances.

We find three errors in the judge’s findings. First, it was error to consider as separate aggravating circumstances that the crime was committed during the commission of a robbery and for pecuniary gain, since these findings “refer to the same aspect of the defendant’s crime.” Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Second, since the death was instantaneous, following a single shot, this crime cannot be considered especially heinous, atrocious, or cruel. Riley v. State, 366 So.2d 19 (Fla. 1978); Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). Third, the finding that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification was not proper under the circumstances of this case. Proof of this aggravating circumstance requires a showing of a state of mind beyond that of the ordinary premeditation required for a first-degree murder conviction. Here the evidence showed that appellant killed Donald Klein intentionally and deliberately but there was no showing of any additional factor to establish that the murder was committed in “a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” § 921.-141(5)(i), Fla.Stat. (1981); see Combs v. State, 403 So.2d 418, 421 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982).

Despite these errors, we conclude that the sentence of death is still lawful because there are two aggravating circumstances and no mitigating circumstances. The previous conviction of a felony involving violence (armed robbery) was shown by documentary evidence. That the murder was committed in the course of a robbery was clearly demonstrated by the circumstances of the criminal episode.

Where an intentional murder is committed in the course of a robbery and there are no mitigating circumstances, a sentence of death is appropriate. E.g., Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976); see generally State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The commission of murder in the course of a robbery by one who has previously been convicted of a felony involving violence to the person of another, when there are no mitigating circumstances, warrants a sentence of death. E.g., Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). Here the appellant had previously been convicted of a violent felony, the murder was committed in the course of a robbery, and there were no mitigating circumstances. Thus the facts of this case are equally or more aggravated than those in Sullivan and closely similar to those in Shriner. They are also comparable to those in Jones v. State, 411 So.2d 165 (Fla.), cert. denied, — U.S.-, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982), and Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979). Therefore, the sentence of death is proper under the law.

The convictions and sentence are affirmed.

It is so ordered.

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

ADKINS, J., concurs in result only.

McDONALD, J., concurs with conviction, but concurs in result only as to sentence.

       Co-defendant Griffin having received a life sentence, his appeal went to the District Court of Appeal for the Fourth District. The conviction was affirmed without opinion. Griffin v. State, 412 So.2d 501 (Fla. 4th DCA 1982).


author: McDONALD, Justice.

text:
    THE FLORIDA BAR. In re AMENDMENT TO RULES OF APPELLATE PROCEDURE (9.140) (Appeal Proceedings in Criminal Cases).
    No. 64461.
    Supreme Court of Florida.
    Dec. 15, 1983.
    John R. Beranek, Chairman, Appellate Rules Committee, West Palm Beach, for petitioner.
   McDONALD, Justice.

Because of the enactment of section 921.-001, Florida Statutes (1983), effective October 1, 1983, and Rules of Criminal Procedure 3.710 and 3.988, also effective October 1, 1983, the Florida Appellate Rules Committee recommends an emergency amendment to Rule 9.140. That statute and Criminal Rule 3.710 authorize an appeal, both by the state and by the defendant, from a sentence imposed outside the range recommended by the sentencing guidelines. While Rule of Appellate Procedure 9.140(b)(1)(E) adequately allows a defendant to appeal from such a sentence, no rule clearly authorizes the state to do so.

Accordingly, on an interim basis subject to further review and comments from interested parties, Rule 9.140, Florida Rules of Appellate Procedure, is hereby amended by adding a provision to the existing rule so that it shall now read:

Rule 9.140. Appeal Proceedings in Criminal Cases.
(a) Applicability. Appeal proceedings in criminal cases shall be as in civil cases except as modified by this rule.
(b) Appeals by Defendant.
(1) Appeals Permitted. A defendant may appeal:
(A) A final judgment adjudicating guilt;
(B) An order granting probation, whether or not guilt has been adjudicated;
(C) Orders entered after final judgment or finding of guilt, including orders revoking or modifying probation;
(D) An illegal sentence; and
(E) A sentence when required or permitted by general law.

A defendant may not appeal from a judgment entered upon a plea of guilty; nor may a defendant appeal from a judgment entered upon a plea of nolo contendere without an express reservation of the right of appeal from a prior order of the lower tribunal, identifying with particularity the point of law being reserved.

(2) Commencement. The defendant shall file the notice prescribed by Rule 9.110(d) with the clerk of the lower tribunal at any time between rendition of a final judgment and 30 days following the entry of a written order imposing sentence. Copies shall be served on the State Attorney and Attorney General.
* jjs * * * *
(c) Appeals by the State.
(1) Appeals Permitted. The State may appeal an order:
(A) Dismissing an indictment or information or any count thereof;
(B) Suppressing before trial confessions, admissions or evidence obtained by search and seizure;
(C) Granting a new trial;
(D) Arresting judgment;
(E) Discharging a defendant pursuant to Fla.R.Crim.P. 3.191;
(F) Discharging a prisoner on habe-as corpus;
(G) Adjudicating a defendant incompetent or insane;
(H) Ruling on a question of law when a convicted defendant appeals his judgment of conviction; and may appeal
(I) An illegal sentence;
(J) A sentence imposed outside the range recommended by the guidelines authorized by Section 921.001, Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.710.
(2) Commencement. The State shall file the notice prescribed by Rule 9.110(d) with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed; provided that in an appeal by the State pursuant to Rule 9.140(c)(1)(H), the State’s notice shall be filed within 10 days of service of defendant’s notice. Copies shall be served on the defendant and the attorney of record. An appeal by the State shall stay further proceedings in the lower tribunal only by order of the lower tribunal.
(3) Briefs. The State’s initial brief shall be served within 80 days of filing the notice. Additional briefs shall be served as prescribed by Rule 9.210.

It is so ordered.

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


author: PER CURIAM.

text:
    Larry CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 62126.
    Supreme Court of Florida.
    Dec. 22, 1983.
    Rehearing Denied Feb. 7, 1984.

      Simson Unterberger of Kessler & Unter-berger, Tampa, for appellant.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Larry Clark appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. We affirm both the conviction and sentence.

Following indictment by a Hillsborough County grand jury for first-degree murder, attempted first-degree murder, and armed robbery, a jury convicted Clark of all three counts and, by a vote of eight to four, recommended the death sentence. The trial court followed the jury’s advisory verdict by imposing a sentence of death.

The crimes occurred on the afternoon of October 30, 1981 in Tampa. Two men entered a sign shop owned by the victims, Felix and Dorothy Satey, husband and wife. One of the men, subsequently identified by Mr. Satey as Clark, had a gun. After shooting Mr. Satey twice and robbing him, Clark and his companion entered the residential portion of the premises and found the seventy-four-year-old Mrs. Satey who was confined by a physical disability to a castored typist’s chair. Mr. Satey pleaded that his wife not be harmed, then heard a gunshot followed by his wife’s moaning. When found, Mrs. Satey had a gunshot wound over the right eye, from which she subsequently died.

The first asserted error relating to the conviction is the admission, over defense counsel’s objection, of certain testimony of Richard E. Casey, a handwriting expert. Mr. Casey’s qualifications as an expert in the field of questioned documents was not contested. The testimony to which Clark’s counsel objected concerned the taking of handwriting exemplars from Davidson Joel James, Clark’s co-defendant, whose trial was severed from that of Clark. Mr. Casey testified that the unusual length of time James took to complete the exemplars was evidence that James, “through apprehension or other reasons,” was trying to vary his handwriting from that which he used in everyday writing. Defense counsel objected, contending that this testimony allowed an inference that James was trying to hide something. Such an inference could then have a “spill-over” effect on Clark. Clark argues here, as at trial, that Casey was not qualified to speculate on the reasons an individual’s handwriting might vary from one time to another. The trial court’s determination that Casey was qualified by experience and training to make such an assessment is fully supported by the record. Further, defense counsel negated any alleged spill-over effect on cross-examining Casey by establishing that Clark, unlike James, completed his handwriting exemplars very quickly. Casey’s testimony was properly admitted.

The second claimed error concerns the denial of a motion for mistrial when, during its deliberations, the jury requested that it be allowed to look at a windbreaker, allegedly belonging to the co-defendant James. The jacket had been excluded from evidence because it had not been exhibited to defense counsel prior to trial. Although the trial court denied the motion for mistrial, it acceded to the defense request that the jury be instructed that its members not concern themselves with the jacket because it had not been admitted into evidence. The court further instructed the jury that it should not draw any inferences from anything said about the jacket, nor should it speculate as to why the jacket was not in evidence. Clark speculates that the excluded jacket must have assumed a particular significance in the minds of the jury. Whatever prejudice may have been caused Clark by the jurors’ interest in the jacket was cured by the trial court’s response to their request to view it. In any event the jury's request does not demonstrate the sort of prejudicial impact which would make a mistrial an absolute necessity. See Ferguson v. State, 417 So.2d 639, 641 (Fla.1982); Salvatore v. State, 366 So.2d 745, 750 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).

Having found no merit to Clark’s arguments relating to the validity of his conviction, and further finding the conviction to be supported by substantial competent evidence, we turn to consideration of the sentence imposed on Clark. Against no statutory mitigating circumstances, the trial court found the following five aggravating circumstances:

1. The defendant had been previously convicted of a felony involving the use or threat of violence to the person. § 921.141(5)(b), Fla.Stat.
2. The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of a burglary and a robbery. § 921.-141(5)(d), Fla.Stat.
3. The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. § 921.-141(5)(e), Fla.Stat.
4. The capital felony was especially heinous, atrocious, or cruel. § 921.-141(5)(h), Fla.Stat.
5. The capital felony was a homicide committed by the defendant in a cold, calculated, and premeditated manner without pretense of moral or legal justification. § 921.141(5)(i), Fla. Stat.

Clark specifically challenges the sufficiency of the evidence in support of the third and fourth of these aggravating circumstances.

The burden is upon the state in the sentencing portion of a capital felony trial to prove every aggravating circumstance beyond a reasonable doubt. Williams v. State, 386 So.2d 538 (Fla.1980). Not even “logical inferences” drawn by the trial court will suffice to support a finding of a particular aggravating circumstance when the state’s burden has not been met. In regard to the third circumstance listed above, in order for a witness-elimination motive to support finding the avoidance of arrest circumstance when the victim is not a law enforcement officer, 1 [p]roof of the requisite intent to avoid arrest and detection must be very strong.” Riley v. State, 366 So.2d 19, 22 (Fla.1978). We have also said that an intent to avoid arrest is not present, at least when the victim is not a law enforcement officer, unless it is clearly shown that the dominant or only motive for murder was the elimination of witnesses. Menendez v. State, 368 So.2d 1278 (Fla. 1979).

Here the proof of such a dominant or exclusive motive for the killing of Dorothy Satey was established. Clark made a statement to a cellmate that “one of them could identify him.” Mrs. Satey knew Clark from his past employment and had signed past paychecks to him. She knew, or would soon know, that he had just committed a violent felony on her husband. Because of her physical condition she was helpless to thwart further taking of the Satey’s property, hence no other motive is readily apparent.

The trial court’s fourth aggravating circumstance, that the murder was especially heinous, atrocious, or cruel, on the other hand, is insufficiently supported by the record. The murder of a disabled and defenseless elderly woman is a vile and despicable act. But under the standard set forth in State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), an especially heinous, atrocious, or cruel homicide is one

where the actual commission of the capital felony was accompanied by such additional facts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Id. at 9. Directing a pistol shot to the head of the victim does not establish a homicide as especially heinous, atrocious, or cruel. Kampff v. State, 371 So.2d 1007 (Fla.1979). Although Mr. Satey testified that he heard his wife moan after being shot, there was no evidence of whether she was conscious after being shot, not did the medical examiner indicate how long Mrs. Satey survived or what degree of pain, if any, she suffered. Although the helpless anticipation of impending death may serve as the basis for this aggravating factor, there is no evidence to prove that Mrs. Satey knew for more than an instant before she was shot what was about to happen to her. Similarly, as pitiable as were Mr. Satey’s vain efforts to dissuade his attackers from harming his wife, it is the effect upon the victim herself that must be considered in determining the existence of this aggravating factor. See Riley v. State, 366 So.2d at 21.

Finding the evidence insufficient to support one aggravating circumstance, when there are four valid aggravating circumstances and no mitigating circumstances, does not warrant a reversal of the sentence. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981); Elledge v. State, 346 So.2d 998 (Fla.1977).

Two other asserted errors during the sentencing phase of Clark’s trial do not merit extensive discussion. The trial judge, following the standard criminal instructions, refused to instruct the jury that the aggravating circumstances of killing during the commission of a robbery and for pecuniary gain must be treated as a single factor. Clark argues that the relative closeness of the jury’s vote on its recommended sentence — eight to four in favor of death — suggests that the improper consideration of these two circumstances as separate factors may have been decisive in its arriving at a recommendation of death. Such an argument is sheer conjecture. Moreover, the sentencing order clearly shows that the trial court, upon whom the sentencing responsibility actually rests, did not improperly count these factors twice. Similarly without merit is the contention that the trial court erred in refusing to strike testimony as to the sentence Clark received for a 1972 robbery conviction. Clark argues that mentioning the twenty-year sentence he received for the previous crime prejudiced him by suggesting the 1971 robbery was especially serious or violent. This argument is without merit since any robbery is, as a matter of law for purpose of the capital penalty aggravating circumstance, a felony involving the use or threat of violence. Simmons v. State, 419 So.2d 316 (Fla.1982).

Finally, Clark has presented an attack upon the constitutionality of section 921.141, Florida Statutes (1981), concerning the death penalty. The essence of the constitutional argument is as follows: By setting up classes of defendants punishable by death, to wit, felony murderers and premeditated murderers, and by then imposing an “automatic” aggravating circumstance only upon a defendant convicted of felony murder, Florida has violated the equal protection clause of the United States Constitution because such a statutory classification bears no reasonable relationship to the legitimate state interests in punishment and deterrence of crime. Clark also contends that the aggravating circumstance that the homicide occurred during the commission or attempted commission of a felony is unconstitutional in that it “automatically” mandates the death penalty upon conviction of felony murder, in the absence of mitigating circumstance.

We have considered, and rejected, arguments substantially the same as these in Menendez v. State, 419 So.2d 312 (Fla. 1982), and White v. State, 403 So.2d 331 (Fla.1981), cert. denied, — U.S.-, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). The constitutional attacks are no more persuasive in conjunction with the facts of Clark’s case.

We conclude that Clark has failed to demonstrate reversible error in any of the trial court’s rulings or in the conduct of his trial. We further conclude that substantial competent evidence exists in the record to support both the conviction and sentence. Having so concluded, we affirm the judgment of the trial court.

It is so ordered.

ALDERMAN, C.J., and BOYD, OYER-TON, McDonald, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs with conviction, but concurs in result only in sentence.

      . The trial judge did not accept as nonstatutory mitigating circumstances psychiatric testimony and evidence that Clark was a recent father who loved and supported his illegitimate son.

      . The state has cogently argued that Mr. Clark lacks standing to present these constitutional arguments since the trial court properly found no mitigating circumstances and two aggravating circumstances other than that the homicide occurred during the commission of a robbery. We take this opportunity, however, to make abundantly clear our view that § 921.141, Fla. Stat., does not unconstitutionally mandate the death penalty for felony murder and that it comports fully with the constitutional requirements of equal protection and due process, as well as the prohibition against cruel and unusual punishment.


author: GRIMES, Acting Chief Judge.

text:
    John Newton ADAMS, III, Appellant, v. STATE of Florida, Appellee.
    No. 82-2217.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1983.
    Rehearing Denied Jan. 11, 1984.
    Marshall G. Slaughter, and Jack T. Edmund, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This case involves a business venture to raise and sell rabbits for pelts.

Appellant John N. Adams, III, was a promoter and rabbit breeder. In late 1978 he devised a plan in which buyers would purchase a rabbit kit in order to breed and raise Rex rabbits for pelts. The pelts were then sold to a furrier for the eventual manufacture into clothing. Adams advertised in local newspapers and held rabbit seminars at various motels.

Through a slide presentation and printed material distributed at the seminars, Adams represented to potential buyers the time and money involved in an individual rabbit operation. For an initial investment of $7,200, the buyer received the minimal plan of twelve does and two bucks. In his lecture on the breeding patterns of the animals, Adams explained that by the end of the first year, an investor could expect to have 720 new breeding does from the original twelve does.

Adams represented that a typical Rex rabbit could be raised to pelting age in four and a half months at an average cost of $1.87 per month for a return of $14-$18 per pelt. The commercial demand for fur combined with the rapid production rate of the animals should result in a profit of $400-$600 per year for each rabbit. Adams pointed out that rabbit breeding could be conducted as a secondary occupation.

Each breeder had the option of selling his pelts individually. Adams recommended, however, that a new buyer join Regency Rex Breeders’ Association [Regency] of which he was a founding member. The group held meetings and published a newsletter. More importantly, a Regency member could be certain of the sale of his pelts through Regency International, Inc. [International], Adams’ family rabbi-try. The corporation functioned as the representative of the Regency members, collecting the rabbits and pelting them and then negotiating for the members in transactions with the furriers. Thus, when buyers purchased their kits, they frequently purchased a membership in Regency as well.

When Adams began his rabbit venture, he contacted Johannes Niemz, a foreign businessman, to establish Rex Furriers [Rex]. Rex guaranteed the purchase of all pelts raised by Regency breeders and sold through International. When a new prospect signed a purchase agreement with Adams, the investor often signed a contract with Niemz as well. Although Adams disputed any agency relationship with or monetary benefit from Rex, he did sign company cheeks and Rex business cards were distributed in his name.

By June 1981, Niemz proved unreliable and eventually disappeared. Rex then ceased operations. Many members of Regency who had sent their rabbits to International for pelting had not been paid. Meanwhile, Cliff Jones, an employee of Regency who assisted members with the care-taking of their rabbits, was fostering dissent among the breeders. He stopped delivering Adams’ stock to new members claiming that it was of inferior quality. Charles and Mary Embry were new breeders who gave Adams a down payment but never received their animals. Jones encouraged members disaffected with Adams and his corporation, International, to split off and form a second breeders’ association, United Rex Breeders [United]. The new group planned to sell their pelts independently.

By August 1981, Adams attempted to recoup his losses. Recognizing that Rex was defunct, he contacted a former business acquaintance and personal friend, Don Rowberry, who headed an investment group. As a result, Rowberry established Royal Fur Company [Royal], a Nevada corporation, which immediately began purchasing Regency pelts through International. Adams denied receiving any compensation from Royal as an employee, although he was again listed as a signatory for its company checks. Adams then contacted by letter all former breeders, including those lost to United, to reassure them of the purchase of their pelts. He encouraged disaffected members to rejoin Regency upon their signing a “contract of reaffirmation.” Adams reorganized his International corporation as well. He continued his general format of lecturing in small towns throughout northern and central Florida to acquire new investors.

Adams and Niemz had originally come to the attention of the Division of Securities of the Office of the State Comptroller in 1979 for alleged violations of the state securities statute. The matter ended in Adams signing a stipulated final judgment filed in April 1981, wherein he agreed to change his sales presentation and offered to make restitution to all previous investors of his rabbit kits. The instant prosecution arose after further complaints were received, which culminated in an investigation by the Florida Department of Law Enforcement. Following a jury trial in August 1982, Adams was convicted on one count each of grand theft (count 7), sale of unregistered securities (count 8), sale of securities by an unregistered person (count 9), fraudulent security transaction (count 10), and failure to file a disclosure statement by the seller of a business opportunity (count 11). Adams now appeals each conviction.

Since Adams was charged with violating various provisions of the Florida Securities Act, our first determination must be whether the purchase agreement for his rabbit kit and Regency Association membership constituted the sale of a security. Section 517.021(15), Florida Statutes (1981), defines “security” as follows:

“Security” means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation, whiskey warehouse receipt or other commodity warehouse receipt, or right to subscribe to any of the foregoing; certificate of interest in a profit-sharing agreement or the right to participate therein; certificate of interest in an oil, gas, petroleum, mineral, or mining title or lease, or the right to participate therein; collateral trust certificate, reorganization certificate, preorganization subscription, or any transferable share, investment contract, or beneficial interest in title to property, profits, or earnings; interests in or under a profit-sharing or participation agreement or scheme, or any other instrument commonly known as a security, including an interim or temporary bond, debenture, note, certificate, or receipt for a security or for subscription to a security.

The state contends that Adams’ contract constituted an “investment contract.” The meaning of this term is not spelled out in the Florida act. However, the same term is used in the Federal Securities Act, and its classic definition was stated by the United States Supreme Court in SEC v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), as “a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.” Id. at 299, 66 S.Ct. at 1102, 90 L.Ed. at 1249. Thus, to prove the existence of an investment contract, the three-pronged test of Howey requires:

1. an investment of money;
2. a common enterprise; and
3. expectations of profits to be derived solely from the efforts of another.

Subsequent federal decisions have expansively construed the word “solely” of the third prong of the test to include various schemes in which the investor was required to contribute certain minimum efforts. Thus, in SEC v. Glen W. Turner Enterprises, Inc., 474 F.2d 476 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973), the court interpreted “solely” to mean “whether the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of enterprise.” Accord SEC v. Koscot Interplanetary, Inc., 497 F.2d 473 (5th Cir.1974). In defining an investment contract under the Florida Securities Act, our courts have adopted the Howey test, as modified. Florida Discount Centers, Inc. v. Antinori, 232 So.2d 17 (Fla.1970); Rudd v. State, 386 So.2d 1216 (Fla. 5th DCA 1980), petition for review denied, 392 So.2d 1380 (1981); Le Chateau Royal Corp. v. Puntaleo, 370 So.2d 1155 (Fla. 3d DCA 1979); Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla. 4th DCA 1971); Florida Discount Centers, Inc. v. Antinori, 226 So.2d 693 (Fla. 2d DCA 1969). Thus, in order to constitute an investment contract, “the efforts made by those other than the investor must be the significant ones in comparison to those made by the investor.” Le Chateau Royal Corp. v. Pantaleo.

Focusing on the third prong of Howey, Adams claims that his efforts in locating a buyer for the Regency pelts were minimal when balanced against the time and energy employed by the individual investors to care for the rabbits and maintain the breeding operations. The state responds that Adams’ endeavors to assure the purchase of the pelts were the significant efforts looked to by the investors to guarantee a return for their money. Without discounting the importance of ensuring a market for the rabbits, we are convinced that the efforts of the investors in raising the rabbits were at least as essential to the success of the venture.

During his presentations and in printed materials, Adams detailed for the investors the time and attention necessary to raise quality stock for the most marketable rabbit pelts. He stressed the caretaking aspect of the operation and explained the optimum breeding conditions. The Regency Breeders Association had employed Cliff Jones as a “troubleshooter” to assist them with health and production problems. Breeders could visit Adams’ own rabbitry for advice, and he made occasional visits to members’ homes. Adams emphasized to an investor that only after he raised and maintained a sizeable number of animals to pelting age would he realize the advertised returns.

We distinguish the investment contract cases cited by the state. SEC v. Turner and SEC v. Koscot were based on pyramid selling schemes in which the investors’ primary responsibility was simply to recruit other investors. Miller v. Central Chinchilla Group, Inc., 494 F.2d 414 (8th Cir. 1974), and Smith v. Gross, 604 F.2d 639 (9th Cir.1979), are factually closer because Miller involved the sale of chinchillas and the investors in Smith bought earthworms. However in both schemes the advertised profits could be realized only if the promoters secured new investors to buy the stock at inflated prices. Hence, unlike the instant case, the undeniably significant efforts for the promised return were those of the promoters and not of the investors.

We next consider the sufficiency of the evidence to sustain Adams’ conviction for grand theft. Mrs. Embry testified that she and her husband entered into a purchase agreement with Adams, made a $3,600 down payment, and never received their rabbits. Although the record reflects contradictory evidence with respect to the scheduled readiness of their cages, Mrs. Embry asserted that the primary reason for nondelivery of the stock was the Em-brys’ decision to end the arrangement altogether. Their cancellation came after Cliff Jones warned them of the alleged poor quality of the animals. When Mrs. Embry contacted Adams, he assured her of a refund after he sold additional rabbit kits. He continued to guarantee the return of their money, although his only obligation under the agreement was to deliver the rabbits as ordered. He specifically denied any intent to defraud the Embrys or any other breeders through nondelivery of their animals.

Adams testified that at the time he entered into the kit sale with the Embrys, his sole intent was to abide by the provisions of the agreement. The Embrys never contended that Adams refused to comply with the contract. Rather, Mrs. Embry stated they had simply changed their minds. Moreover, Adams openly admitted accepting the Embrys’ down payment and stated under oath that his debt to them remained outstanding.

Under the old larceny statute, the felonious intent required to convict had to exist at the time of the taking. Helton v. State, 135 Fla. 458, 185 So. 864 (1938); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). There is nothing in the new theft statute to suggest that this rule has been changed. In Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980), the court held that a contractor who had accepted a down payment on a construction job but thereafter made no effort to perform had not committed grand theft. On the other hand, the court in Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982), petition for review denied, 426 So.2d 25 (1983), upheld the conviction of grand theft of one who accepted money for the performance of services and immediately disappeared until his arrest more than two years later. Our supreme court has said that where a “taking was in the open, with no subsequent attempt to conceal it, and there was no concealment nor denial of such taking, but on the other hand, an express avowal thereof,” a strong presumption of no felonious intent is raised. Maddox v. State, 38 So.2d 58 (Fla.1948). Measured by applicable law, there was insufficient evidence that Adams possessed the requisite felonious intent to steal the Embrys’ down payment at the time he sold them the rabbit kit. We note that Adams was not charged with the commission of any fraudulent practices under Chapter 817, and he was acquitted of misrepresentation by the seller of a business opportunity.

The nature of Adams’ venture clearly constituted the sale of a “business opportunity” as defined in section 559.-801(1), Florida Statutes (1981). Therefore, the evidence supports the jury’s conclusion that Adams violated the law by failing to file the disclosure statement required by section 559.805, Florida Statutes (1981).

We hereby reverse Adams’ conviction under counts 7 through 10 and order that he be discharged of those counts. We affirm the judgment and sentence on count 11.

SCHOONOVER and LEHAN, JJ., concur.


text:
    Patrick Thomas TRINDADE, Appellant, v. ABBEY ROAD BEEF ’N BOOZE, American Mutual Insurance Company, and Division of Workers’ Compensation, Dept. of Labor and Employment Security, Appellees.
    No. AP-254.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1983.

      Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.
    Keith R. Pallo of Adams, Coogler, Watson & Merkel, West Palm Beach, for appel-lees, Abbey Road Beef ’N Booze and American Mut. Ins. Co.
    Dan F. Turnbull, Asst. Gen. Counsel, State Dept, of Labor and Employment Sec., Tallahassee, for appellee, Div. of Workers’ Compensation.
   EN BANC OPINION

PER CURIAM.

On its own motion, the court voted to hear and determine this worker’s compensation appeal en banc, under Rule 9.331(a) and (b), Florida Rules of Appellate Procedure, because of apparent conflict between the proposed decision and opinion of the regular three-judge panel, and prior decisions of this court. The proposed opinion (to which a majority of the members of the court sitting en banc concur as to the result) has been withdrawn, and the following is adopted as the decision and opinion of the court.

This is an appeal from an order of the deputy commissioner (DC) denying wage-loss benefits upon a finding that the claimant had not sustained a permanent impairment under the American Medical Association’s Guides to the Evaluation of Permanent Impairment (1977) (“AMA Guides ”). The DC relied upon our decision in Mathis v. Kelly Construction Company, 417 So.2d 740 (Fla. 1st DCA 1982), to deny wage loss benefits, since the medical testimony reflected that Trindade had no loss of range of motion in his knee, and thus had no permanent impairment assignable under the AMA Guides.

Trindade concedes that Section 440.-15(3)(a)3., Florida Statutes (1979), as interpreted by this court in Mathis, purports to require the use of the AMA Guides to determine the existence and degree of permanent impairment. However, Trindade argues that although the AMA Guides “cover” knee impairments, the Guides do not provide a permanent impairment rating for his particular type of knee injury, and he therefore should not be denied wage loss benefits. Trindade further urges that to the extent it would appear to preclude his recovery of benefits, this court should reconsider Mathis. We agree that since Trindade’s knee injury is one involving no loss of range of motion, no permanent impairment rating is ascertainable by the use of the Guides. Nevertheless, contrary to the result apparently dictated by our Mathis decision, we find that Trindade has sustained a permanent impairment and is entitled to wage loss benefits. We therefore reverse the deputy commissioner’s order.

Trindade suffered a knee injury in an accident arising out of and in the course of employment on November 21, 1979. The treating orthopedic surgeon, Dr. Zeide, rated Trindade’s knee instability as resulting in a five to ten percent permanent impairment based on the American Academy of Orthopedic Surgery Guides. His diagnosis was that Trindade had torn cartilage and torn anterior cruciate ligament, causing his knee to buckle on occasion, and recommended a knee cage to limit the motion of his knee. Dr. Zeide testified that he was unable to give a permanent impairment rating to the injury based on the AMA Guides as they dealt only with loss of range of motion in rating knee disability, and Trindade’s knee had instability due to excessive range of motion.

In Mathis, we determined that Section 440.15(3)(a)8. survived a due process attack and was constitutional as applied because the particular injury, a knee joint injury, was “covered” by the AMA Guides, but since his knee injury did not involve loss of range of motion, Mathis could not be assigned a permanent impairment rating under the Guides. Whether the result in Mathis might have been different had the court been faced with the same compelling facts as in this case (the nature of Mathis’ knee joint injury is not described in the opinion), or had the court been privileged to hear the same arguments as presented in this case (including those presented in the briefs and oral argument of the Workers’ Compensation Division), we are unable to state. Be that as it may, the Mathis opinion did not fully address the application and effect of the statute in cases (such as the one before us) in which the injury to a part of the body nominally covered by the Guides results in permanent impairment which manifests itself in a way other than by loss of range of motion.

Our efforts to give the Guides exclusive effect, and by doing so to facilitate the goal of uniformity (in determining the existence of and in rating permanent impairment) expressly sought by the enactment of Section 440.15(3)(a)3., have been undertaken in anticipation of the adoption by the Division of a more comprehensive schedule for determining the existence and degree of permanent impairment as mandated by the same statute. See, Decor Painting & Iowa Mutual Insurance Co. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981); Mathis v. Kelly Construction Company, 417 So.2d 740 (Fla. 1st DCA 1982); Jones Mahoney Corporation v. Hutto, 421 So.2d 703 (Fla. 1st DCA 1982); Morrison & Knudsen/American, etc. v. Scott, 423 So.2d 463 (Fla. 1st DCA 1982); Paradise Fruit Company v. Floyd, 425 So.2d 9 (Fla. 1st DCA 1982); Refrigerated Transport Company v. Edmond, 428 So.2d 338 (Fla. 1st DCA 1983); and Cabrera v. Universal Trusses, Inc., 429 So.2d 768 (Fla. 1st DCA 1983). More than four years have now passed since the legislature imposed upon the Division the duty of establishing such a comprehensive guide, and mandated the use of the AMA Guides as a temporary schedule. In the meantime, it has become increasingly difficult (as attested by the opinions of this court reflecting the actual experience of the litigants, their counsel, and the deputy commissioners) to reconcile the limited scope and coverage of the Guides with the broader commas of Chapter 440 itself, which has as its fundamental purpose the compensation (as well as rehabilitation) of injured workers.

Accordingly, although our decisions have reflected our view that the legislature’s directive to utilize the Guides is mandatory, and that they must be applied when the injury in question is “covered” therein, see, e.g., Paradise Fruit Company v. Floyd, supra, we also recognized that certain injuries and conditions that are medically determined to result in permanent impairment are “not covered” in the Guides, and when that is the case the claimant may not be made to suffer the consequences of such omissions. Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982). In Rhaney, we held that “[ujnder such circumstances the permanent impairment can be proved by qualified expert testimony based on the training, experience, and expertise of the witness or on other accepted medical guides or schedules prepared by specialist groups or associations such as the Academy of Orthopedic Surgeons.” Id. at 1279-80. Subsequent cases have reflected and extended the rationale of Rha-ney so as to find entitlement to benefits with respect to injuries which we have determined to be “not covered” by the Guides. Quality Petroleum Corporation v. MIHM, 424 So.2d 112 (Fla. 1st DCA 1982) (injury to right leg — soft tissue scarring, impairment of circulation, probability of recurring infection, recurring swelling and pain); Florida Sheriffs Youth Fund v. Harrell, 438 So.2d 450 (Fla. 1st DCA 1983) (soft tissue injury in sacroiliac — spasm, impairment of capability because of sensitivity to stress, bending, lifting, prolonged sitting, etc.).

If our former approach as indicated in Mathis and other cases was justified by the “temporary” status given to the Guides by the legislative enactment, it no longer is. The Division has informed us, both in its brief and in oral argument before this court, that it not only has been unable to produce a comprehensive schedule as mandated by the statute: It expresses doubt that a suitable schedule can be prepared, and it is anticipated that no such schedule will be forthcoming. Instead, the Division informs us that it advocates the continued use of the AMA Guides, to the extent applicable, and that it proposes to adopt the revised and up-dated version of the Guides expected to be published in 1984.

It may be observed that our experience in trying to formulate a standard based on the “covered” or “not covered” dichotomy for determining when the Guides permit a finding of permanent impairment, and when they do not, offers little hope for a workable solution. One fundamental reason for this is that the Guides apparently were never intended to be used in this manner. Thus, it is unrealistic for us to find that certain types of “injuries” are “not covered” by the Guides (and therefore other medical standards can be used) when, in actuality, the Guides (Chapter I particularly) do not generally speak in terms of “injuries,” to the body and its extremities but speak primarily in terms of the consequences or results of injury. As already indicated above, for the most part Chapter I of the Guides and the tables therein concern themselves with a single type of result — loss of range of motion. Other chapters, such as those dealing with peripheral spinal nerves, respiratory and cardiovascular systems, mental illness, etc., of course use other appropriate criteria.

Although a contrary conclusion is implicit in Mathis and other decisions, there appear to be valid arguments against the motion that the legislature, simply by mandating use of the Guides on a temporary basis, intended to establish a single “range of motion” test of permanent impairment. If this were the case, then our Quality Petroleum and Harrell decisions were incorrectly decided. Significantly, by the language of the statute the Division is not restricted to the adoption of a schedule based upon a single “range of motion” criteria, but is directed to adopt a schedule for determining the existence and degree of permanent impairment “based upon medically or scientifically demonstrable findings.” Further, the schedule shall be based on “generally accepted medical standards for determining impairment,” and “may incorporate all or part of any one or more generally accepted schedules used for such purpose,_” Section 440.15(3)(a)3. It is evident that interpretation of the directive to use the Guides as the adoption of a single “range of motion” criteria, would have the anomalous effect of requiring the application of that single standard until such time as the Division adopts a different schedule, but not after.

We have the obligation of interpreting a statute in a manner consistent with the legislative intent, to the extent it is ascertainable and can lawfully be implemented. We have the further obligation of applying an interpretation upholding the constitutionality of a statute, if such an interpretation is permissible. Department of Insurance, State of Florida v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla.1983).

With the above considerations in mind, we return to the specific issue before us, which is: Whether we shall recognize the so-called “exclusivity” of the Guides with respect to injuries which, although “covered” in the Guides, do so only to the extent of providing a permanent impairment rating for loss of range of motion, where the existence of permanent impairment other than loss of range of motion has been made to appear by evidence meeting generally acceptable medical standards for determining impairment? The answer to this question is clear, and was forecast by our decisions in Rhaney, Paradise Fruit Company, and Farrell, supra.

First, as a practical matter, over four years of experience have shown the futility of attempting to view the Guides as a comprehensive, all-inclusive schedule of permanent impairments. This valuable treatise, viewed by the Division as the “best available,” is nevertheless — according to much credible medical testimony reflected in the eases coming before us — incomplete and unsuited to the determination of permanent impairment resulting from certain types of injuries. See, Rhaney, Quality Petroleum, Harrell, supra. The Division apparently agrees with this assessment. Its brief labels it “an absurdity” to require the use of the Guides where the injury is not covered by the Guides, and urges also that “coverage” must not be governed by whether the Guides cover “a particular area of the body,” but whether the Guides cover conditions created by the injury itself.

The Division rejects outright appellee’s implied assertion that the only way to obtain an anatomic impairment rating is through the Guides. Division’s Brief, page 10. We concur. As the Division indicates, this court in Quality Petroleum expressed the same view, although in different language, by holding that where the evidence establishes permanent physical impairment, “but that impairment is not addressed by the ... [AMA] Guides, it is not error for the deputy to rely on medical testimony of permanent impairment based upon other generally accepted medical standards.” 424 So.2d at 113-114. See, also, Refrigerated Transport Co. v. Edmond, supra, which denied wage loss benefits because there was an absence of competent medical testimony of permanent impairment “based on the AMA Guides or other scientifically demonstrable findings, (emphasis supplied). 428 So.2d at 340.

Finally, but not least importantly, to interpret and apply the statute so as to find one employee — with permanent impairment manifested by restrictions in the range of motion of his body or extremities — eligible for compensation for his loss of earning ability, but to deny such eligibility to another employee — whose non-range of motion permanent impairment has no less effect on his earning ability — would be violative of due process. We are unable to imagine how such a statute would bear any reasonable relationship to permissible legislative objectives, nor how it could be other than discriminatory, arbitrary and oppressive. See, Carr v. Central Florida Aluminum Products, 402 So.2d 565 (Fla. 1st DCA 1981); Fourteenth Amendment, Section 1, United States Constitution; Article I, Section 9, Florida Constitution. Further, since the sine qua non of the wage loss concept is economic loss, a classification which distinguishes between eligible and ineligible claimants on a basis which bears no reasonable relationship to their respective economic loss is violative of equal protection and access to the courts provisions of the Federal and State Constitutions. Fourteenth Amendment, Section 1, United States Constitution; Article I, Sections 2, 21, Florida Constitution.

We therefore hold that for purposes of determining eligibility for wage loss benefits in accordance with Section 440.15(3)(a) and (b), the existence and degree of permanent impairment resulting from injury shall be determined pursuant to the Guides, unless such permanent impairment cannot reasonably be determined under the criteria utilized in the Guides, in which event such permanent impairment may be established under other generally accepted medical criteria for determining impairment.

Since the conditions causing Trindade’s permanent impairment (instability of the knee joint — excessive range of motion) are not treated in the Guides, it is impossible to determine the existence or degree of impairment from the Guides; therefore, other generally accepted medical standards may properly be used. Quality Petroleum, supra. We recede from Mathis and any other decisions to the extent they would dictate a contrary result.

Finally, our decision today does not require that we recede from or modify Jamar Sportswear, Morrison & Knudsen, Decor Painting, supra (footnote 1), or related cases, except to the extent that the restrictive “exclusivity” attributed to the Guides by those cases would be contrary to the rule we have announced here. The Guides, where applicable, shall be used as the primary rating schedule, but shall not be used to deny benefits simply because the Guides do not make provision for the conditions causing the impairment.

One additional matter requires attention. The deputy commissioner found, in accordance with the medical testimony before him, that the knee cage prescribed for Trin-dade’s condition did not qualify as a “prosthesis” so as to entitle him to a 50% impairment rating under the Guides. The original panel’s proposed decision did not disturb this ruling. Our determination to decide the case en banc was based upon the Mathis conflict, rather than this issue. However, once en banc consideration is properly undertaken, the court will ordinarily decide all the issues in the case. The division urges that the knee cage, although technically classified as an “orthosis” by Dr. Zeidé, nevertheless meets the requirements of a “prosthesis” as the term is interpreted by the division in connection with other statutory provisions (Sections 440.19(2)(b), 440.02(6)). The division argues further (as does Trindade) that a definition restricting the term to “artificial limbs” would be inapposite in the context in which it appears in the Guides (see footnote 6, supra). We tend to agree. Therefore, on remand, the deputy commissioner is directed to receive further evidence with respect to the knee cage, including testimony of expert medical witnesses furnished by the division, to determine whether a disability rating under the “prosthesis ... required” provision of the Guides is appropriate.

The order appealed is reversed and the cause is remanded for entry of an order finding permanent impairment, and for further order with respect to the degree of impairment, and award of benefits, consistent with this opinion.

ERVIN, C.J., and MILLS, ROBERT P. SMITH, Jr., BOOTH, LARRY G. SMITH, SHIVERS, WENTWORTH, JOANOS, THOMPSON, WIGGINTON, NIMMONS and ZEHMER, JJ., concur.

      .In our order informing the parties of our decision to consider this case en banc, we scheduled oral argument, recognized the Division of Workers’ Compensation, Department of Labor and Employment Security as a party, directed the filing of a brief by the Division, and invited additional briefs by the other parties addressing the following and any related questions:
      1. Should the court recede from Mathis v. Kelly Construction Co., 417 So.2d 740 (Fla. 1st DCA 1982) and similar decisions?
      2. If so, what effect if any would that action have on Jamar Sportswear, Inc. v. Miller, 413 So.2d 811 (Fla. 1st DCA 1982), Morrison & Knudsen/American Bridge Division v. Scott, 423 So.2d 463 (Fla. 1st DCA 1982), and Decor Painting, et al. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981)?
      3. What is the effect, in terms of possible exclusivity and irrebuttability, of section 440.-15(3)(a)3. prescribing the temporary use of the AMA Guides to the Evaluation of Permanent Impairment (1977)?

      . "The workers' compensation system was instituted to compensate a worker for his inability (total or partial) to earn as much after an injury as he had earned before." Sadowski, Herzog, Butler & Gokel, The 1979 Workers’ Compensation Reform: Back to Basics, 7 Fla.St.U.L.Rev. 641, 649 (1979).

      . Under a schedule fully complying with these legislative standards, the claimant in Mathis, supra, could easily have qualified for wage loss benefits, since the medical evidence established a 30% permanent impairment rating under the Guides of the American Academy of Orthopedic Surgeons.

      . Our Mathis and perhaps other decisions seem to have adopted this inappropriate "area of the body” approach to the “coverage” issue. Of course, not all "Guides" cases denying benefits do so on this narrow ground. For example, in Jones Mahoney, supra, there was an apparent absence of proof of permanent impairment under other medically acceptable (but non -Guides) criteria. Compare, also, Racz v. Chennault, Inc., 418 So.2d 413 (Fla. 1st DCA 1982), Deinema v. Pierpoint Condominiums, 415 So.2d 811 (Fla. 1st DCA 1982), and Cabrera, supra, in which non-use of the Guides precluded an award of benefits, but it was not fatal to the claim, and the cases were remanded for further evidence as to an impairment rating based on the Guides.

      . Id., 7 Fla.St.L.Rev. 641, 652, 681, 684 (1979).

      . "If a prosthesis is required for knee stability, there is 50% impairment of the lower extremity although there might be full range of motion of the knee joint.” Guides, at page 33.

      . Dorland’s Illustrated Medical Dictionary, Twenty-Fourth Edition (1965), includes the following definition of "prosthesis”: "2. An artificial substitute for a missing part, such as an eye, leg, or denture; the term is also applied to any device by which performance of a natural function is aided or augmented, such as a hearing aid or eyeglasses.” (emphasis supplied).