author: PER CURIAM. BOYD, Justice,

text:
    Connie Moore LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 59846.
    Supreme Court of Florida.
    Oct. 27, 1983.
    Rehearing Denied Jan. 11, 1984.

      Melanie Ann Hines, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant, Connie Moore Livingston, appeals his conviction of first-degree murder and the imposition of the death sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We conclude that under the special circumstances of this case the trial judge should have disqualified himself from presiding in appellant’s trial and, consequently, we must reverse appellant’s conviction and sentence and remand this case for a new trial. It should be understood that the trial judge’s action in denying the motion for disqualification was influenced by a decision of this Court which rejected a request by the same attorney who now represents appellant to disqualify the same judge in all cases in which the attorney served as counsel or was a party. As we have explained in this opinion, that prior action does not control this case. To aid in appellant’s retrial, we have addressed the question submitted concerning the use of a prior criminal offense to establish identity and find that this evidence is admissible in the retrial.

The appellant, who is retarded, was charged with a brutal first-degree murder and sexual battery. The appellant’s mother retained Charles A. Wade to represent her son. Prior to his arraignment, appellant filed a motion, verified by him, for the disqualification of Judge Erwin Fleet. In this motion, which was filed under section 38.10, Florida Statutes (1979), appellant set forth specific conflicts between his attorney and the trial judge, concluding that “Judge Fleet is so biased and prejudiced and has so much animosity against his counsel, Charles A. Wade, that he, Connie Livingston, would be unable to get a fair and impartial trial in this case ... . ”

Wade filed a supporting affidavit which described several incidents establishing this alleged animosity between himself and Judge Fleet. As alleged, these incidents, which occurred over a period of twenty-five years, were: (1) that in 1958, Fleet, who had been appointed to a circuit judgeship in 1957, was defeated by Wade in an election for that position; (2) that during Wade’s service as a circuit judge, Fleet appeared before him as a lawyer and angry words exchanged between them, resulting in Fleet’s threat to petition for Wade’s disqualification in future cases; (3) that after Fleet was elected to another circuit judgeship and Wade, who was still a circuit judge, became the administrative judge for the county, there were numerous crossings between the judges; (4) that after Wade retired from his circuit judge position and began his private law practice he was held in contempt of court by Judge Fleet in Wade’s first contested hearing before him; and (5) that Judge Fleet had directed a grand jury to investigate a criminal matter involving Wade which had been nol-prossed by the state attorney and had appointed as grand jury foreman a man whom Fleet had unsuccessfully represented before Wade when he was a circuit judge. This latter incident concerning the grand jury investigation occurred in 1979, approximately five months prior to the commencement of appellant’s trial, and, as indicated in the record in this case, received local newspaper publicity.

The appellant’s motion for disqualification also contained two affidavits from individuals who stated that they were not related to the parties or the attorneys and that to the best of their knowledge it would be virtually impossible for Wade or any of his clients to get a fair and impartial hearing before Judge Fleet. On April 16, 1980, Judge Fleet denied the motion for disqualification, finding that the motion and accompanying affidavits were legally insufficient under the requirements of section 38.10, Florida Statutes (1979). Wade renewed the motion for disqualification twice during subsequent pre-trial hearings and again at the commencement of the trial. Each renewal was denied. The denial of the motion was also used as a ground for a motion for new trial, which was also denied.

First, we address the previous action in which Wade sought to disqualify Judge Fleet in all cases. In December, 1979, Wade filed a suggestion for writ of prohibition in the Supreme Court of Florida, seeking to have Fleet disqualified from hearing any case or matter involving Wade either as an individual or as an attorney. This Court, without opinion, denied the suggestion for the writ on February 14,1980, approximately two months before the commencement of appellant’s trial. See Wade v. Fleet, 383 So.2d 1204 (Fla.1980).

The state contends that this Court’s denial of the writ without opinion is controlling in this case. We realize that the allegations made by the appellant in his motion for disqualification in this case are basically the same as those made by Wade in his previously denied petition for writ of prohibition. It is important to note, however, that the relief sought by Wade in his prior petition was a general prohibition against Judge Fleet’s hearing any of Wade’s cases. That petition was not by a litigant seeking disqualification of the judge in any particular case, as appellant’s motion does in the instant case.

This Court has clearly held that a lawyer’s request for a general disqualification of a judge will not be granted. In Ginsberg v. Holt, 86 So.2d 650, 651-52 (Fla.1956), we said that

[tjhere is no provision in the statutes or the decisions for a blanket decree restraining a particular judge from hearing all cases in which a particular attorney may appear in his professional capacity as an officer of the court and we unreservedly decline to introduce such a novel and revolutionary procedure.

(Emphasis added.) Because our denial of the writ of prohibition in Wade v. Fleet was not accompanied by an opinion, we recognize that Judge Fleet, as well as the prosecution, could have construed the denial to mean that the allegations in the affidavit were insufficient to require the disqualification of Judge Fleet in any particular case arising in the future. Our prior decision in Wade v. Fleet, however, is not controlling and appellant’s motion for disqualification must be considered on the basis of whether, under the circumstances, he has a reasonable fear that he would not receive a fair trial in this case.

This Court has recognized the sensitivity and seriousness involved whenever the issue of judicial prejudice is raised. We have stated that:

Prejudice of a judge is a delicate question to raise but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge against whom raised, should be prompt to recuse himself. No judge under any circumstances is warranted in sitting in the trial of a cause whose neutrality is shadowed or even questioned.
... It is a matter of no concern what judge presides in a particular cause, but it is a matter of grave concern that justice be administered with dispatch, without fear or favor or the suspicion of such attributes. The outstanding big factor in every lawsuit is the truth of the controversy. Judges, counsel, and rules of procedure are secondary factors designed by the law as instrumentalities to work out and arrive at the truth of the controversy.
The judiciary cannot be too circumspect, neither should it be reluctant to retire from a cause under circumstances that would shake the confidence of litigants in a fair and impartial adjudication of the issues raised.

Dickenson v. Parks, 104 Fla. 577, 582-84, 140 So. 459, 462 (1932). This Court has also expressed the view that:

“Every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge.” It is the duty of courts to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy -tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice.

State ex rel. Mickle v. Rowe, 100 Fla. 1382, 1385, 131 So. 331, 332 (1930).

In Florida, there are four separate expressions concerning the disqualification of trial judges, which are set forth in: (1) The Code of Judicial Conduct Canon 3-C; (2) section 38.10, Florida Statutes (1981); (3) Florida Rule of Criminal Procedure 3.230, which was adopted verbatim by this Court from a former statute, section 911.01, Florida Statutes (1967); and (4) Florida Rule of Civil Procedure 1.432.

The Code of Judicial Conduct sets forth basic principles of how judges should conduct themselves in carrying out their judicial duties. Canon 3-C(l) states that “[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned .... ” This is totally consistent with the case law of this Court, which holds that a party seeking to disqualify a judge need only show “a well grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affi-ant’s mind and the basis for such feeling.” State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (1938). See also Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981). The question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the judge’s perception of his ability to act fairly and impartially.

When a party believes he cannot obtain a fair and impartial trial before the assigned trial judge, he must present the issue of disqualification to the court in accordance with the process designed to resolve this sensitive issue. The requirements set forth in section 38.10, Florida Statutes (1981), Florida Rule of Criminal Procedure 3.230, and Florida Rule of Civil Procedure 1.432 were established to ensure public confidence in the integrity of the judicial system as well as to prevent the disqualification process from being abused for the purposes of judge-shopping, delay, or some other reason not related to providing for the fairness and impartiality of the proceeding. The same basic requirements are contained in each of these three processes. First, there must be a verified statement of the specific facts which indicate a bias or prejudice requiring disqualification. Second, the application must be timely made. Third, the judge with respect to whom the motion is made may only determine whether the motion is legally sufficient and is not allowed to pass on the truth of the allegations. Section 38.10 and Florida Rule of Criminal Procedure 3.230 also require two affidavits stating that the party making the motion for disqualification will not be able to receive a fair trial before the judge with respect to whom the motion is made, as well as a certificate of good faith signed by counsel for the party making the motion. Section 38.10 requires that these affidavits be from persons unrelated to the parties or counsel. No affidavits are required under Florida Rule of Civil Procedure 1.432.

Section 38.10 gives to litigants a substantive right to seek the disqualification of a trial judge. Because, however, the actual process of the disqualification of a judge is procedural, Florida Rule of Criminal Procedure 3.230, rather than the statute, controls the disqualification process. See Jackson v. Korda, 402 So.2d 1362 (Fla. 4th DCA 1981), State ex rel. Aguiar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977). See also Benyard v. Wainwright, 322 So.2d 473 (Fla.1975); In re Clarification of Florida Rules of Practice & Procedure, 281 So.2d 204 (Fla.1973). We reject the state’s contention that appellant’s motion is invalid because it was filed pursuant to section 38.10 rather than under Florida Rule of Criminal Procedure 3.230. The substance of the procedural requirements of rule 3.230 is contained in the appellant’s motion. In considering the sufficiency of the allegations to meet the requirements of our procedural process, the technical requirements of the contents of the affidavits need not be strictly applied but, rather, they will be deemed sufficient “[i]f taken as a whole, the suggestion and supporting affidavits are sufficient to warrant fear on the part of” a party that he will not receive a fair trial by the assigned judge. Parks, 141 Fla. at 519, 194 So. at 614-15.

The facts alleged in the motion need only show that “the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge.” Dewell, 131 Fla. at 573, 179 So. at 697. “If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.” Parks, 141 Fla. at 518,194 So. at 614. Further, “it is a question of what feeling resides in the affiant’s mind and the basis for such feeling.” Dewell, 131 Fla. at 573, 179 So. at 697-98.

The state argues that the allegations made in appellant’s motion for disqualification fail to show prejudice towards counsel to the degree that it is likely to prejudice appellant. This Court has expressly held that a judge may be disqualified due to prejudice towards an attorney where the prejudice “is of such degree that it adversely affects the client.” Ginsberg v. Holt, 86 So.2d 650, 651 (Fla.1956). See also State ex rel. Fuente v. Himes, 160 Fla. 757, 36 So.2d 433 (Fla.1948); Parks. Prejudice against a party’s attorney can be as detrimental to the interests of that party as prejudice against the party himself. What is important is the party’s reasonable belief concerning his or her ability to obtain a fair trial. A determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. As noted, the last incident involving Judge Fleet and Mr. Wade occurred just five months prior to the commencement of appellant’s trial. Given the record in this case identifying the disputes which have arisen between the judge and the lawyer over a substantial period of time, we must conclude that the appellant could have a reasonable fear that he could not receive a fair trial. This is especially true in this prosecution for first-degree murder in which appellant’s life is at stake and in which the circuit judge’s sentencing decision is so important.

We have concluded that Livingston’s verified motion and supporting documents were sufficient under Florida Rule of Criminal Procedure 3.230 to require the trial judge to disqualify himself. We must vacate the judgment and sentence and remand with directions to proceed with a new trial. Further hearings at the trial court level on the issue of disqualification would not, in our view, be beneficial. We therefore direct that the chief judge of the circuit assign another judge for the retrial of this case.

To aid in the retrial of this case, we address the question of the admissibility of testimony concerning an offense committed by appellant on March 29,1980, in Pensacola, Florida. Appellant asserts that the testimony concerning the Pensacola offense does not qualify as similar fact evidence under the guidelines of Williams v. State, 110 So.2d 654 (Fla.) cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). We find that there was a uniqueness about the appellant’s modus operandi which, in our view, made the evidence clearly admissible on the issue of identity.

We find it inappropriate to discuss any of the other issues raised in the case. For the reasons expressed we reverse appellant’s conviction and sentence and remand for a new trial.

It is so ordered.

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

BOYD, J., dissents with an opinion, in which ALDERMAN, C.J., concurs.

BOYD, Justice,

dissenting.

I dissent to the judgment of the Court that a new trial is required because of appellant’s pre-trial perception of prejudice against his lawyer on the part of the trial judge. I believe that a trial judge’s denial of a motion for disqualification pursuant to Florida Rule of Criminal Procedure 3.230 must be evaluated differently after there has been a trial and conviction than when such a motion is reviewed by way of a petition for a writ of prohibition prior to trial.

I agree with the majority’s statement that Rule 3.230 provides a procedure for effectuating substantive rights bestowed by section 38.10, Florida Statutes (1981). Former section 911.01, Florida Statutes (1969), pertained to the same subject but was a statute dealing with criminal procedure and was therefore superseded by Rule 3.230 and was accordingly later repealed. Ch. 70-339, § 180, Laws of Fla. Section 38.10 remains as a substantive provision regarding the rights of litigants to receive justice at the hands of impartial judges. Only the procedural elements of section 38.10 have been superseded in criminal cases by Rule 3.230.

I also agree that by judicial interpretation the references in both the statute and the rule to prejudice in favor of or against a party have been expanded to encompass also prejudice in favor of or against an attorney for a party. State ex rel. Fuente v. Himes, 160 Fla. 757, 36 So.2d 433 (1948); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939). When this Court denied Charles Wade’s petition to prohibit Judge Fleet from sitting on any case in which Wade might appear as an attorney, Wade v. Fleet, 383 So.2d 1204 (Fla.1980), we were following a long-standing precedent rejecting such a “blanket decree” as a “novel and revolutionary procedure.” Ginsberg v. Holt, 86 So.2d 650, 651-52 (Fla.1956). Recognition of animosity toward a lawyer as a cause of prejudice against the lawyer’s client does carry with it the danger, however, that although the lawyer may not be able to get a “blanket decree” of disqualification, he may be able to achieve the same result one case at a time. From the perspective of concern for the sound and efficient administration of justice, it may be far more reasonable, in the case of a lawyer who is going to transfer a well-grounded fear of prejudice to all of his clients, to require him to remove his practice to another circuit than to require the judge to re-cuse himself every time the lawyer appears in his courtroom.

Rule 3.230 provides that when a motion for disqualification of the judge is filed in a criminal case, the judge shall consider the motion only to determine its legal sufficiency and “shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.” When a trial judge denies a motion for disqualification either by improperly passing on the truth of the allegations or adjudicating the question of disqualification, or by erroneously finding a legally sufficient motion to be insufficient, the moving party has one further remedy to exhaust before proceeding to trial before the judge in question. Although such a pre-judgment order is not appealable, the moving party can seek review by petitioning the court with appellate jurisdiction for a writ of prohibition. See, e.g., Bundy v. Rudd, 366 So.2d 440 (Fla.1978); Wilson v. Renfroe, 91 So.2d 857 (Fla.1956); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939); Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State ex rel. Zacke v. Woodson, 399 So.2d 7 (Fla. 5th DCA 1981). The writ of prohibition affords a means of reviewing the trial court’s determination of the sufficiency of the motion, or a remedy for its passing on the truth of the allegations, before the expenditure of judicial time and labor on the conduct of a trial.

Rule 3.230 provides an extraordinary protection for the right of an accused to a fair trial in that well-grounded allegations of subjective fear that the judge is prejudiced are sufficient to require recusal. The judge is not permitted to evaluate the merits of a legally sufficient motion. The reason for this procedure is to secure inviolate the appearance and perception of complete impartiality and to avoid the creation of “an intolerable adversary atmosphere” in the proceedings. Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978) (quoting Department of Revenue v. Golder, 322 So.2d 1, 7 (Fla.1975) (on reconsideration)). This valuable procedural right, together with the writ of prohibition as a means of review, protect the accused from having to go to trial before a certain judge when the accused has a well-grounded fear that he will not receive a fair trial. If the accused fails to seek review of the judge’s denial of the disqualification motion, however, and proceeds to trial, he should be deemed to have waived the extraordinary procedural right provided for by Rule 3.230.

I do not say that by not seeking prohibition the accused waives the right to be tried before an impartial judge. Such right is substantive and fundamental and abides with the accused throughout the proceedings. But the procedural right afforded by Rule 3.230, which almost gives the accused a unilateral “peremptory challenge” to the first judge assigned to his case, should not be evaluated on appeal after trial and judgment under the same standards as would have applied if the accused had sought review by writ of prohibition before the commencement of the trial. After the trial has already been held, the appellate court can examine the record of the proceedings and treat the question as one of impartiality versus prejudice in fact. If an atmosphere of partiality did in fact develop at the trial then a new trial should be ordered. But the expenditure of substantial time and labor by the court, jury, and lawyers should not be held for naught because of an erroneous ruling under Rule 3.230 when the appellant could have sought review before trial by means of a petition for writ of prohibition.

It is interesting to note that something like the approach I am proposing has been widely utilized by the appellate courts of Florida in dealing with the issue of disqualification of trial judges for prejudice. When a trial judge’s denial of a motion for disqualification is brought before the appellate court for review by means of a pre-trial petition for writ of prohibition, the courts tend to apply the rule strictly and inquire only into the sufficiency of the motion and supporting affidavits to state a well-grounded fear of partiality. See, e.g., Bundy v. Rudd; Dickenson v. Parks; State ex rel. Allen v. Testa, 414 So.2d 38 (Fla. 3d DCA 1982); Jackson v. Korda, 402 So.2d 1362 (Fla. 4th DCA 1981); State ex rel. Zacke v. Woodson, 399 So.2d 7 (Fla. 5th DCA 1981); State ex rel. Aguiar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977). On the other hand, when defendants wait until after their trials to seek review of the orders of denial in conjunction with their appeals, the appellate courts tend to evaluate the claims of prejudice on the merits. See, e.g., Jones v. State, 411 So.2d 165 (Fla.), cert. denied, -U.S. -, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982); Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); Mikenas v. State, 367 So.2d 606 (Fla.1978); Dempsey v. State, 415 So.2d 1351 (Fla. 1st DCA), review denied, 424 So.2d 761 (Fla.1982); Van Fripp v. State, 412 So.2d 915 (Fla. 4th DCA 1982); Yesbick v. State, 408 So.2d 1083 (Fla. 4th DCA), review dismissed, 417 So.2d 331 (Fla.1982).

I therefore conclude that by failing to seek appellate court prohibition of the judge’s presiding over his trial, appellant has waived the right to have his motion evaluated under the standards set out in Rule 3.230. Lest I be misunderstood, I reiterate that I am not saying he waived the right to be tried before an impartial judge. The record of the trial is before us. If appellant could demonstrate from that record that during his trial the presiding judge deviated for a single instant from that cold neutrality that is demanded of a judge, then appellant would be entitled to a new trial. Moreover, in my view, if the circuit judge who presided at trial could be shown to have in fact allowed his unfavorable relationship with appellant’s lawyer to affect him and his actions in his official capacity as judge to appellant’s detriment, the result should be not only a new trial for appellant but a complaint from the justices of this Court to the Judicial Qualifications Commission concerning .the conduct of the trial court judge.

I have carefully reviewed the entire record of appellant’s trial. I conclude that the alleged mutual dislike of Judge Fleet and attorney Wade had no substantial effect on the conduct of the trial; the alleged prejudice of the judge against the lawyer was not visited upon the client in any significant manner discernible from the record. On the basis of this review of what actually happened I would reject appellant’s demand for a new trial for violation of Rule 3.230.

The evidence showed that the victim was bludgeoned to death with a glass soft-drink bottle. Her sexual organs were violently molested. There was competent, substantial evidence for the jury to conclude that appellant was the perpetrator of these acts. The defendant’s lawyer was allowed fair and ample opportunity to contest the state’s interpretation of the evidence and to develop his theory of defense.

Appellant was properly found competent to stand trial and the procedure by which this issue was determined was fair and proper. The psychiatrists’ written reports were a proper basis for the judge’s determination. Fowler v. State, 255 So.2d 513 (Fla.1971). The psychiatrists found appellant to be mentally slow but competent to understand the proceedings.

There was evidence of an unrelated criminal attack committed by appellant. This evidence was properly admitted under Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1960).

The appellant’s confession was found through proper procedures to have been voluntarily given and was therefore properly admitted into evidence. All of appellant’s other arguments on the admissibility of particular items of evidence and the fairness of the trial procedure are without merit.

My review of the sentencing proceeding reveals that it too was conducted in a constitutionally fair manner. As aggravating circumstances the court found that appellant had previously been convicted of a felony involving the use or threat of violence; that the murder was especially heinous, atrocious, or cruel; and that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. These findings were supported by the evidence.

The court found one mitigating circumstance as follows:

FINDING: From the evidence, the defendant, CONNIE LIVINGSTON, was under the influence of emotional disturbance when he committed the murder and sexual battery of which he was convicted. Previous psychological examinations showed evidence of diminished capacity of the defendant, but not to the extreme that it deprived him of the ability to form the intent to commit a premeditated homicide.

The court concluded that the aggravating circumstances outweighed the single mitigating circumstance found. This conclusion was reasonable and proper under the evidence.

I would affirm the convictions of first-degree murder and sexual battery and the sentence of death. I dissent to the order granting a new trial.

ALDERMAN, C.J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James DOLAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-407.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    As Corrected on Denial of Rehearing Dec. 21, 1983.
    James M. Stark of James M. Stark, P.A., and Donald R. Spadaro, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert L. Bogen, and Sharon Lee Stead-man, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have carefully reviewed the voluminous record and considered each of the several points on appeal, facilitated by the excellence of appellate briefs and argument. As to each of appellant’s points we conclude either that no error exists or, where error is made to appear, that it was harmless, with the exception of that part of the sentence which imposed a fine “jointly and severally” upon several individuals. Appellant could have been fined a sum not in excess of $10,000 under Section 775.-082(3)(c), Florida Statutes (1981). We vacate the present fine and remand for imposition of an appropriate fine which shall not be joint and several.

Upon remand, the imposition of an appropriate fine is a sentencing under the provisions of Section 775.083 Florida Statutes (1981), and Dolan at such time is entitled to the sentencing rights articulated in State v. Scott, 439 So.2d 219 (Fla.1983).

Accordingly, we affirm in part and reverse in part and remand.

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Irene T. WEBB, Appellant, v. PARK EAST PROPERTIES, INC., a Florida corporation, Appellee.
    No. 83-178.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Rehearing Denied Jan. 11, 1984.
    Thomas E. Brandt of the Law Office of Thomas E. Brandt, Fort Lauderdale, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed on the authority of Harris v. Haught, 435 So.2d 926 (Fla. 1st DCA 1983), and section 682.13, Florida Statutes (1981).

LETTS, GLICKSTEIN and WALDEN, JJ., concur.


text:
    John B. PIERCE, Jr., and Roger Wellington, as Personal Representatives of the Estate of Lucile P. Wellington, Deceased, Appellants, v. Harold KOPLOW and Wang Laboratories, Inc., a foreign corporation, Appellees.
    No. 83-1284.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Denied Dec. 15, 1983.

      Gaston Snow & Ely Bartlett Hall & Swann and Richard H.M. Swann and John J. Sullivan, Coral Gables, for appellants.
    Kelly, Black, Black, Earle & Patchen, P.A., and Leon D. Black, Jr., and Richard M. Bales, Jr., Miami, for Wang Laboratories, Inc.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See McMullen v. McMullen, 145 So.2d 568 (Fla. 2d DCA 1962).


author: SHARP, Judge.

text:
    Donald B. SCHMECK and Gloria Schmeck, his wife, and Frederick G. Lippold and Janet Lippold, his wife, Appellants, v. The SEA OATS CONDOMINIUM ASSOCIATION, INC., Appellee/Cross-Appellant, and Sea Oats Developer, Inc., a Florida corporation, Appellee/Cross-Appellee.
    No. 82-896.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 1983.
    Rehearings Denied Dec. 7, 1983.

      Thomas R. Hess, of Ossinsky, Krol & Hess, Daytona Beach, for appellants.
    William G. Norwich, of Gralla & Norwich, Cocoa Beach, for appellee/cross-appellee, Sea Oats Developer, Inc.
    James S. Theriac, III, of Holcomb, Theri-ac & Steinberg, Merritt Island and S. Lindsey Holland, Jr., of Crofton, Holland, Starling, Harris & Severs, P.A., Melbourne, for appellee/cross-appellant.
   SHARP, Judge.

Gloria and Donald Schmeck, and Janet and Frederick Lippold, owners of two condominiums in the Sea Oats Condominium, and the Sea Oats Condominium Association, Inc., appeal and cross-appeal from a judgment rendered after a non-jury trial. The lower court denied the condominium unit owners and the association any damages against Sea Oats Developers, Inc., the company that built and sold the condominium, for various construction defects in the Schmeck and Lippold units and in the common elements; and it mandated that the Schmecks and Lippolds remove shutters from the exterior of their units that they had installed to protect the interiors of their units from water damage. The court also denied the unit owners any remedy against the condominium association. We affirm in part and reverse in part.

It is with great reluctance that we reverse a judgment after a trial on the merits. Such a judgment comes to us as presumptively correct, and we cannot overturn findings of fact where there is conflict in the evidence or testimony. Unfortunately for us the lower court made no findings of fact. That makes our review more difficult because we must look at the whole record and seek to uphold it, if possible, on any theory.

I. Claim of the Condominium Association Against the Unit Owners

This litigation commenced when the association sought an injunction to require the Schmecks and the Lippolds to remove storm shutters they had installed across the exterior of their sliding glass doors and windows on the ocean side of their units. The Schmecks purchased unit 28 in Sea Oats in February of 1979, and the Lippolds purchased unit 22 in the same year. Both purchases were from the developer. The Schmecks’ unit was on the top floor, and the Lippolds’ unit was on the fourth floor, directly beneath the Schmecks.

The Schmecks and the Lippolds moved into their respective units in June of 1979. From that time, and even at the time of the trial in this case, they experienced severe water damage in their units. Water seeped in through the windows, the doors, and the walls. They complained to the developer, who at least twice tried to remedy the problem by recaulking the walls and window and door frames.

There is conflict in the record whether the unit owners sufficiently notified the association about their problems before the June and July meetings of the association’s board in 1980. At the June meeting, they asked the board to allow them to install storm shutters across the exterior of the glass doors facing the balconies of the units. Permission was not granted. Again the record was conflicting as to whether the association agreed to work with the unit owners to get the developer tó remedy the problem, and whether the unit owners cooperated with the association on this remedy. Resolving this conflict most favorably to support the judgment, it appears that the Schmecks and the Lippolds did not respond to the association’s overtures, and they installed the shutters with full knowledge that they lacked permission to do so.

The installed shutters reduced the water seepage and leakage in both units. The uncontroverted testimony was that the Schmecks spent four thousand one hundred six dollars ($4,106.00), and the Lippolds spent three thousand four hundred eighty-two dollars twenty-five cents ($3,482.25), to repair the woodwork, repaper walls, replace the draperies and upholstery, and refinish and replace ruined furniture. The units were refurnished with approximately the same quality and kind of furnishings as they had originally contained prior to the water problems.

The Sea Oats Declaration of Condominium provides that unit owners may not make any structural modifications or alterations of their units “including ... the installation of awnings, shutters ... and other things which might protrude through or be attached to the walls of the apartment buildings....” Further, the declaration clearly defines the balcony areas where the shutters were installed as limited common elements, and the exterior walls where they were attached as common elements. Under the Florida Condominium Law, unit owners are prohibited from making any alterations or additions to the common elements, except in a manner provided by the declaration, and they are required to comply with that statute and the provisions in their declarations. The president of the association testified that the installation of the shutters could have been authorized by a change in the by-laws or declaration. However, no such change was made.

The lower court was correct in concluding that the unit owners violated the provisions of the declaration and the condominium statute by installing the storm shutters on their units, and that they could be required to remove them. Fountains of Palm Beach Condominium, Inc. No. 5 v. Farkas, 355 So.2d 163 (Fla. 4th DCA 1978); Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971). In the Farkas case, an owner built a patio on the common elements, and in Breitenbach, the owners replaced the screens on their porch with glass jalousies. But in neither case did the owner have a compelling reason for doing so, as in this case.

Prior to the trial, the association, the Schmecks and the Lippolds entered into a written stipulation that should have controlled their positions in this case. The stipulation provided:

That the actions and events giving rise to the present lawsuit are primarily the result of the tortious actions of the Sea Oats Developers, Inc., a Florida corporation.
It appears that both the Plaintiff [the Association] and the Defendants [the unit owners] have causes of action against the Sea Oats Developers, Inc., and that amendment of the pleadings making the Sea Oats Developers, Inc. a party defendant, will enable the existing parties to fully adjudicate the matters now in controversy.

In the amended pleadings, both the association and the unit owners claimed the developer had breached its implied warranties with regard to its construction of the common elements and the Schmeck and the Lippold units, causing all of these parties to suffer damages.

The association did not offer any proof that the Schmecks and the Lippolds had not suffered thousands of dollars of damage to their units and furnishings, and their own expert witness testified that the severe water problems suffered by the unit owners were caused by the developer’s failure to construct the roof of the building according to plans, and its failure to provide any down-spouts or gutters. He also testified that the shutters were not the best way to solve the Schmecks’ and the Lippolds’ water problems. It is clear and undisputed, however, that neither the association nor the developer took any temporary or permanent action to stop the water seepage, and the Schmecks and the Lippolds resorted to the shutters as the best remedy known to them at the time. Indeed, had they not taken some steps to protect their refurnished units, and if the water damage had recurred as it most likely would have, they would likely be found not to have tried to mitigate their damages. “Damages are not recoverable for harm that the plaintiff should have foreseen and could have avoided by reasonable effort without undue risk, expense, or humiliation.” Restatement (First) of Contracts § 336(1) (1932).

We affirm the lower court’s injunction mandating removal of the shutters because they clearly violate the declaration and condominium law. However, on remand we urge that the court temper the immediacy of its order, so as to prevent the recurrence of water damage in the units before the construction defects are corrected. The unit owners in this case have a duty to take reasonable steps to protect their units and furnishings until the cause of the water leakage is corrected. Putting up shutters in this case can be viewed as boarding up glass doors and windows with plywood after a hurricane has broken out the glass. We do not mean to suggest, however, that the unit owners can recover from any party the full cost of the shutters, unless they also establish it was a reasonable method to use for temporary protection of their units.

II. Claims of the Unit Owners Against the Condominium Association

The Schmecks and the Lippolds argue that the association has the primary duty to repair and maintain the common elements and the limited common elements under the Sea Oats Declaration of Condominium. The association also has the duty to make emergency repairs or replacements of the condominium property, including the common elements and limited common elements. The uncontroverted testimony at trial established that the Schmeck and the Lippold apartments were being damaged by leaks through defects in the common elements: rainfall cascaded from the roof onto the balconies and exterior walls of the units.

However, there was also adequate testimony to support the lower court’s conclusion that the association had been newly formed when the damage suffered by the Schmecks and the Lippolds came to its attention. The association referred the problem to its attorney, and tried to work with the developer to resolve various construction defects. Within a four month period after retaining an attorney and not being able to work out a satisfactory resolution with the developer, the association authorized its attorney to file suit against the developer.

Under these circumstances, the court could have concluded that the association was acting as reasonably and expeditiously as possible, and that it was not primarily responsible for the water problems being experienced by the Schmecks and the Lippolds. See Janke v. Corinthian Gardens, Inc., 405 So.2d 740 (Fla. 4th DCA 1981). Further, the stipulation quoted above, by itself, is a sufficient basis upon which to conclude that the Schmecks and the Lippolds agreed that the damage was primarily caused by the developer, not the association. That portion of the judgment denying the Schmecks’ and Lippolds’ claims against the association is therefore affirmed.

III. Claims of the Unit Owners and the Association Against the Developer

As described above, the record is uncon-troverted that the Schmecks’ and the Lip-polds’ condominium units suffered severe water intrusion, and that the unit owners expended several thousand dollars to repair and refurnish the units. They testified that although the shutters stopped the worst leaks, the problem was not completely cured. Before the shutters were installed, the units were not habitable.

The association’s expert witness, Clark Smith, testified as to numerous construction problems with the buildings, including substandard construction of the false mansard built around the buildings’ roofs; defects in the garage roofs; poor concrete work on the sidewalks and stairs; and seepage between the balcony supports, which needed to be sealed at the very least. Smith also testified that there was a large amount of storm water run-off from the roofs which flooded onto the balconies, causing the Schmecks’ and Lippolds’ problems. The building had not been constructed according to its plans and specifications. The roof should have extended an additional eighteen inches, or the full distance of the balcony below. Also, the plans called for down-spouts, which would have channeled the run-off away from the balconies. Smith said it was too late now to extend the roof out eighteen inches, but the flooding problem could be handled with a gutter and drain system. He testified as to each item of construction defect, and the cost to repair or restore it.

The developer’s expert witness, Clifton Gurr, who drew the plans for the condominium, testified that the developer did not build the roof according to the plans because the roof should have extended out the same distance as the balconies. Gurr also admitted the plans called for two by three standard galvanized down-spouts, but he could not locate where they were to have been placed on the plans. Gurr denied, however, that the deviation from the plans caused any structual problems. He testified, for example, that the open balconies would have received run-off and rain anyway. However, Gurr did admit there was some substandard workmanship on the condominium.

The developer admitted he shortened the roof eighteen inches for aesthetic and structural reasons, and it was a deviation from the plans. He denied that this caused the unit owners’ water seepage problems, but he did not deny they existed. The developer testified he sent out numerous workmen to caulk windows and walls, and make numerous other repairs. But he did not deny that additional repairs still needed to be made. He testified he could make the various repairs Smith talked about at no cost, or a fraction of the cost Smith estimated would be reasonable.

It is now well established that a developer may be held liable for damages for breach of implied warranties in failure to construct according to plans or in a workmanlike or acceptable manner, or for failure to provide a unit or building which is reasonably habitable. These warranties run in favor of the condominium association and (at least) the first purchasers of the units from the developer.

Because the record here clearly established that the developers did not build the building according to its plans and specifications, that there was defective workmanship in the condominium construction, and that the Schmecks’ and the Lippolds’ units were not reasonably fit as residences due to water leaks and seepage, the judgment below denying the association and the unit owners any relief against the developer is clearly erroneous. We reverse that portion of the judgment denying relief against the developer, and remand this proceeding for a new trial on the issue of damages.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

ORFINGER, C.J., and DAUKSCH, J., concur.

      . See Industrial Builders, Inc. v. Heritage Ins. Co. of America, 416 So.2d 1244 (Fla. 4th DCA 1982); Highland Lakes, Inc. v. Art Present Real Estate, Inc., 147 So.2d 348 (Fla. 3d DCA 1962).

      . Section 13, Declaration of Condominium for the Sea Oats Condominium provides in full: No owner of an apartment shall make any structural modifications or alterations of the apartment. Further, no owner shall cause any improvements or changes to be made on or to the exterior of the apartment buildings, including painting or other decoration, the installation of awnings, shutters, electrical wiring, air conditioning units and other things which might protrude through or be attached to the walls of the apartment building; further, no owner shall in any manner change the appearance of any portion of the apartment building not wholly within the boundaries of his apartment.

      . § 5, Declaration of Condominium for the Sea Oats Condominium.

      . § 718.113(2) & (3), Fla.Stat. (1981).

      . § 718.303(1), Fla.Stat. (1981).

      . Section 11, Declaration of Condominium for the Sea Oats Condominium, provides:
      The Association, at its expense, shall be responsible for the maintenance, repair and replacement of all common elements and limited common elements, including those portions thereof which contribute to the support of the building, and all conduits, ducts, plumbing, wiring and other facilities located in the common elements, or the interior walls, ceilings or floors of condominium units, for the furnishing of utility services to the apartments.

      . § 6C(7), By-Laws of the Sea Oats Condominium Association, Inc.

      . Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981); B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla. 3d DCA 1977); see Grossman Holdings, Ltd. v. Hourihan, 414 So.2d 1037 (Fla.1982).

      . Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972); see Gory Associated, Ind., Inc. v. Jupiter Roofing & Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978).

      . See Putnam v. Roudebush, 352 So.2d 908 (Fla. 2d DCA 1977).

      . Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689 (Fla. 2d DCA 1979).


author: PER CURIAM. BARKDULL, Judge,

text:
    Elbert BROWN and Edith Brown, Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC.; the Celotex Corporation; Nicolet, Inc.; Gaf Corporation; Pittsburgh Corning Corporation; Eagle-Picher Industries, Inc.; Owens-Illinois, Inc.; Combustion Engineering, Inc.; and Owens-Corning Fiberglas Corporation, Appellees.
    No. 82-2678.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Rehearing Denied Dec. 28, 1983.
    Frederick M. Baron and Jane N. Saginaw, Robles & Robles, and Brian Weinstein, Dallas, Tex., for appellants.
    Shackleford, Farrior, Stallings & Evans and Charles P. Schropp and Raymond T. Elligett, Jr. and Clark Jordan-Holmes, Tampa, Harold C. Knecht, Jr., Coral Gables, Stephens, Lynn, Chernay & Klein and Debra Levy Neimark, Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLemore, Miami, Marks, Gray, Conroy & Gibbs and James C. Rinaman, Jacksonville, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Bleck, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court entered final summary judgment for the defendants on the ground that the action, commenced July 31, 1979, was barred by the applicable statute of limitations, Section 95.11(3), Florida Statutes (1979). We reverse because there remains a material factual issue as to whether claimant, prior to July 31, 1975, in the exercise of reasonable diligence should have known that he had a cause of action against product manufacturers for injuries caused by exposure to asbestos. See Perez v. Universal Engineering Corp., 413 So.2d 75 (Fla. 3d DCA 1982); Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980).

In addition to the testimony upon which the dissent focuses, plaintiff also testified that he has visited physicians regularly during his adult life, in later years complaining of shortness of breath, and that he was not informed by any physician until 1979 that he suffered from an asbestos-related disease. There is no showing by the defendants that any physician could have established to a reasonable medical certainty— priorato 1979 — a cause and effect relationship between plaintiffs exposure to asbestos and his physical disability.

It is a burden of one seeking summary judgment to demonstrate conclusively the nonexistence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). On the record before us the burden is not carried.

Reversed and remanded.

BARKDULL, Judge,

dissenting.

I respectfully dissent from the majority opinion and would hold that as a matter of law the plaintiff should have discovered with the exercise of due diligence his injury some 4 years prior to the commencement of the action.

The Florida Statute of Limitations governing this cause of action for negligence and products liability is Section 95.11(3)(a), (e), Florida Statutes (1979). This read with Section 95.031(2), Florida Statutes (1979) provides that the four year time period commences

“running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence.”

The plaintiff should have discovered that his breathing difficulties beginning in the 1960s were a result of his exposure to asbestos. Plaintiff’s own testimony which formed the basis for the entry of the judgment reads in part as follows:

Q. Now, you said before this morning that one of the reasons that you retired in 1968 was shortness of breath.
A. Right.
Q. And you had been experiencing that for some time prior to—
A. Right.
Q. —prior to 1968.
A. Right.
Q. When did that start?
A. I don’t know, maybe a year or two, just — it’s built up to it. It’s built up to it.
Q. Did you ever see any physician for that problem?
A. No.
Q. At all?
A. No,. You mean before this Dr. Tate?
Q. Yes?
A. Before him, no.
Q. Yes, before him?
A. No.
Q. So, the first doctor that you specifically saw for a chest problem was Dr. Tate?
A. Right.
Q. When did you first hear the word, “asbestosis”?
A. I don’t know. I guess maybe when they come out with it in the papers about it.
Q. And when was that?
A. I don’t remember, ’70, ’71 or ’72, whenever.
Q. You were retired at that point; cor- • rect?
A. Yeah.
Q. Did you still attend union meetings?
A. No, no, because I was moved away.
Q. Where were you living at that point?
A. Up in Inglis.
Q. Did you become concerned at that point that your breathing problems might be because of your exposure to asbestos?
A. Yes, yes, in a sense, but, you know, you would have — if you don’t know that you’ve got it you don’t look for it.
Q. You knew that asbestos and asbestosis was a lung problem that insulation workers were developing; did you not?
A. According to the paper, yes.
Q. And you knew, of course, that you had shortness of breath?
A. Right.
Q. And you had had it for a number of years?
A. Right.
Q. And in your mind did you relate the shortness of breath that you were having to your career in asbestos industry?
A. No, because I didn’t want to. You don’t like to even think that you have got it.
Q. So, if you thought about it at all you dismissed it from your mind because you didn’t want to think about it?
A. I tried to.
Q. Tell me in 1971 and ’72 when you read this in the papers about asbestosis causing lung disease—
A. Yes.
Q. —how you were doing as far as your shortness of breath?
A. Well, it was — I would say it was progressively getting worse.
Q. Were you progressively getting more worried as it got worse?
A. Yes, I was bound to be concerned, but I tried not to do a lot of worrying.
Q. Okay.
A. But naturally it was a concern.
Q. When you read this information concerning that that the inhalation of asbestos dust possibly being harmful to your breathing, and this is at a period of time when you have had these breathing problems which were getting worse, did you contact your union or contact any co-workers to find out what they had heard about it?
About two years ago. t>
What I would like for you to do, Mr. Brown, is focus on 1971 or ’72 when you read this information in the papers about asbestos causing breathing problems and my question is, at that time during those years upon finding that out did you contact any co-workers or union members concerning what they knew about asbestos or asbestosis? «©
No. <1
At that point did you go to a doctor concerning your increasing breathing problems? O’
No. !>
Why? <©
That is a good question. I wish that I could answer it. i>
Well, give my your best answer. <©
I would say just too darn stupid. i>
What do you mean by that. <©
Well, me — I should have gone, no doubt about it, but I didn’t.
And in what way do you mean stupid? O'
I should have gone, I should have had respect for my body than just let something like that go.
So, you just decided to ignore it; is that what you are telling me? £>
That is what I did.

I would hold that the admissions of the plaintiff as set out above established as a matter of law that his cause of action is time barred by the statute of limitations. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Buck v. Mouradian, 100 So.2d 70 (Fla. 3d DCA 1958); Morre, By and Through Moore v. Morris, 429 So.2d 1209 (Fla. 3d DCA 1983); Roberts v. Casey, 413 So.2d 1226 (Fla. 5th DCA 1982); Steiner v. Ciba-Geigy Corporation, 364 So.2d 47. (Fla. 3d DCA 1978).

      . Section 95.11 provides in pertinent part: Actions other than for recovery of real property shall be commenced as follows:
      (3) WITHIN FOUR YEARS.
      (a) An action founded on negligence.
      * * * * * *
      (e) An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property that is not permanently incorporated in an improvement to real property, including fixtures.
      Section 95.11(3) must be read in conjunction with Section 95.031(2), which provides in pertinent part:
      (2) Actions for products liability ... under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3) ....


author: BASKIN, Judge.

text:
    AMERICAN SAVINGS AND LOAN ASSOCIATION OF FLORIDA, and Shepard Broad, Appellants, v. Jack BERTOGLIO and Bear, Stearns & Company, Appellees.
    Nos. 83-1310, 83-885.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Rehearing Denied Dec. 15, 1983.
    Heller & Kaplan, Daniels & Hicks and Patrice A. Talisman and Sam Daniels, Miami, for appellants.
    White, Burnett, Hurley, Banick & Strickroot and Curtis Carlson and Kathy M. Klock and Douglas C. Broeker, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Appellee Bertoglio purchased 100,000 shares of American Savings and Loan stock directly from American. The stock he received bore a legend reserving voting rights pursuant to a voting trust agreement. Contending that the legend prevented him from freely trading the stock, Bertoglio obtained injunctive relief requiring American Savings and Loan to reissue the stock without the legend.

We hold that Bertoglio has failed to demonstrate the lack of an adequate remedy at law. Any injury he might suffer as a result of the inclusion of the legend may be addressed in an action to recover damages. See Oxford International Bank and Trust v. Merrill Lynch, Pierce, Fenner & Smith, 374 So.2d 54 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1199 (Fla.1980).

Reversed.


text:
    Joseph WOJICK, Appellant, v. UNIJAX, INC., Appellee.
    No. 83-10.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Rehearing Denied Dec. 20, 1983.

      Raymond G. Ingalsbe and David Wiitala, of Ingalsbe, McManus, Wiitala & Contole, P.A., North Palm Beach, for appellant.
    B.H. Boswell, Fort Lauderdale, and Charles Kelso of Fisher & Phillips, Atlanta, Ga., for appellee.
   PER CURIAM.

Affirmed. See, Kourtis v. Eastern Airlines, 409 So.2d 139 (Fla. 4th DCA 1982).

ANSTEAD, C.J., and HERSEY and DELL, JJ., concur.


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. William Henry BAKER, Appellee.
    No. 82-688.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    Rehearing Denied Nov. 30, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant,
    Russell W. Layton, Cocoa Beach, for ap-pellee.
   COWART, Judge.

This case involves the admissibility of similar fact evidence.

William Henry Baker was accused of being the man who got out of a certain pickup truck and shot at Doctor Austin. A witness at trial, Kenneth Bowen, testified that he was driving down Boggy Creek Road when he heard shots, saw a man get into the pickup truck and proceed ahead of him up Boggy Creek Road. Bowen said the truck stopped at a stop sign and that he saw Baker get out of the truck and that Bowen passed Baker and the truck. When Bowen was asked if Baker’s truck fell in behind him after he passed it, Bowen replied, “after he shot at me, yes.” At the time of this answer defense counsel made no objection or motion but at the close of the State’s case moved for a mistrial on the ground that Bowen had improperly testified to an unrelated crime committed by Baker. The trial court denied the motion for mistrial and, in his case, Baker testified he did not shoot at Doctor Austin or Bowen and did not have a gun at the time in question. After Baker was found guilty by the jury the trial court granted his motion for a new trial based on Bowen’s answer being inadmissible and prejudicial and the State appeals. We reverse the order granting a new trial.

Evidence of a defendant’s commission of crimes, wrongs, or bad acts, other than that for which he is being tried, is admissible if the evidence is relevant to prove any material fact in issue in the trial and is not offered merely to show the bad character or propensity of the defendant to commit the crime charged. Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Hodges v. State, 403 So.2d 1375 (Fla. 5th DCA 1981), rev. den., 413 So.2d 877 (Fla.1982); § 90.404(2)(a), Fla.Stat. (1981). It is true that here the similar fact evidence got before the jury not because the State intended to offer it but because the witness volunteered it. It is also true that Bowen’s answer was unresponsive in that he could have answered that Baker followed him without saying that Baker first shot at him. Nevertheless the volunteered testimony was not legally prejudicial because it was properly admissible. This is because the testimony of Bowen as to being shot at by Baker, if believed, was probative to several relevant factual issues involved in the underlying trial, including whether Baker had a gun at the time and place in question, Baker’s state of mind at the time and place in question and, possibly, as to Baker’s consciousness of guilt if the jury inferred that Baker shot at Bowen because Bowen was a witness to Baker’s assault on Doctor Austin.

The trial court’s order granting a new trial indicates that Bowen’s reference to Baker’s shooting at Bowen may have violated a prior court instruction to Bowen not to volunteer testimony. If the witness Bowen willfully violated a lawful court order the proper remedy was a contempt charge against the witness and not the granting of a new trial because of the admission of evidence which we here hold to be properly admissible.

REVERSED AND REMANDED for further proceedings.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: COBB, Judge.

text:
    CKN AIRWAYS, INC., and John Ostgard, Appellants, v. FLAGLER COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 82-1362.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    Rehearing Denied Dec. 8, 1983.

      Eric A. Latinsky, Ormond Beach, for appellants.
    Cynthia S. Tunnicliff and David S. Dee of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, and Noah C. McKinnon, Jr., Daytona Beach, for appellee.
   COBB, Judge.

This appeal concerns the basic issue of whether the appellants, CKN Airways, Inc., and John Ostgard, breached a lease agreement with Flagler County (hereinafter Fla-gler) relating to operation of the Flagler County Airport. Flagler sued for cancellation of the agreement and the eviction of CKN and Ostgard, who signed the lease as president of CKN and as an individual guarantor.

The action by Flagler was filed as a suit for declaratory judgment. It asserted that the defendants had breached the lease agreement by failing to present evidence of insurance for all periods during the lease, assigning an interest in the lease without Flagler’s prior approval, and subleasing a portion of the airport for non-aviation purposes.

CKN and Ostgard moved to dismiss on the ground that the complaint was not properly one for declaratory relief, since it did not seek an interpretation of provisions of the lease, but merely sought eviction based upon allegations of breach by the defendants. See Barrett v. Pickard, 85 So.2d 630 (Fla.1956); Halpert v. Olesky, 65 So.2d 762 (Fla.1953); Kelner v. Woody, 399 So.2d 35 (Fla. 3d DCA 1981). Although this contention was correct, the motions were properly denied because the complaint, although misnomered as one for declaratory relief, stated a cause of action for eviction. As such, this action would be one properly brought only in the county court. However-, the defendants’ filing of counterclaims against Flagler seeking damages in excess of $5,000 prior to the filing of the motion to dismiss cured the circuit court’s jurisdictional problem.

CKN and Ostgard also contend on appeal that the trial judge erred in denying their demand for a jury trial. We agree. Following the non-jury trial, the circuit judge resolved various factual conflicts against the defendants, as indicated by the following language from the Final Judgment of Eviction:

L. The Court finds and determines that there was conflicting evidence as to the sufficiency and adequacy of the performance by the Defendants at the airport facility under the lease, but the credible and believable evidence persuades the Court that the Defendants failed to materially perform a substantial number of the functions of the Flagler County Airport and materially comply with the terms of the lease dated December 15, 1977 to the extent there is a material breach of the lease agreement. The cumulative effect of the various violations of the lease by the Defendants supports the Plaintiff’s right to terminate the lease.

The circuit court was in error in denying the repeated demands by the defendants for a jury trial on the various factual issues presented by the complaint and the counterclaims. See Wincast Assn., Inc. v. Hickey, 342 So.2d 77 (Fla.1977); Winter Garden Citrus Growers Assn., Inc. v. Willits, 113 Fla. 131, 151 So. 509 (1933); Kies v. Florida Ins. Guaranty Assn., Inc., 435 So.2d 410 (Fla. 5th DCA 1983); Goldbloom v. Kislak, 408 So.2d 748 (Fla. 3d DCA 1982); Olins, Inc. v. Avis, 131 So.2d 20 (Fla. 3d DCA 1961).

Accordingly, the judgment is reversed and the cause is remanded for jury trial.

REVERSED and REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . § 34.011(2), Fla.Stat. (1981).


author: DAUKSCH, Judge.

text:
    In re the ESTATE OF Lester O. SCHRIVER, Deceased. Louise A. SCHRIVER, Appellant, v. Merritt L. SCHRIVER, etc., Appellee.
    No. 83-42.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    Rehearing Denied Dec. 2, 1983.
    Stewart Andrew Marshall, III; of Stewart Andrew Marshall, III, P.A., Moreland, Palmer & Marshall, a partnership including professional associations, Winter Park, for appellant.
    John DeM. Haines of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order in a probate case. The question on appeal is whether the donee of a Durable Family Power of Attorney can make a binding election for the donor/widow to take an elective share of the widow’s deceased husband’s estate. The trial court said no; we say yes.

In 1974 the legislature created a new power of attorney called a durable family power of attorney which was a means by which the family members could help a potentially disabled or incompetent person in handling that person’s legal, business and property affairs. This law has the beneficial effect of avoiding the time, expense and embarrassment involved in having to establish guardianships for incompetent persons. The power to act under a durable family power of attorney may be conferred on only certain family members and the statute is explicit in what cannot be done by the donee. It is not specific as to what can be done. Essentially the only property not “subject to” the durable family power of attorney, according to the statute, is homestead property held in tenancy by the entirety. Even that can be alienated with the joinder of the spouse, when Section 709.08(3), Florida Statutes (1981) is considered in its entirety. The essential difference this statute creates between the usual general power of attorney and a durable family power of attorney is that the latter allows the continued authority to act during a period of incapacity or incompetency, except as the statute otherwise provides. See § 709.08(2), Fla.Stat. (1981).

The durable power of attorney in this case was executed in July, 1981 and authorized the donor’s daughter to “execute) ... any instrument which may be requisite ... to effectuate any ... thing pertaining ... to me.” Of course, it does not say so in such words — the words used are obviously meant to be all-inclusive to allow the donee to do any legal act the donor could do on her own. We interpret the statute and document to authorize the donee’s signing documents which secure and protect any legal interest of the donor.

Lester 0. Schriver died in August 1981 some two months after executing his will which left nothing to his wife of five years, Louise. The will said:

It is my intent that my present wife, Louise Schriver, should not participate in my estate in that her own estate is entirely adequate to provide for her care. It has been our desire during our relatively short marriage that our estates should remain separate and pass to our respective children.

In September, 1981, Nancy Trull, Louise’s daughter by another marriage signed an “election to take elective share” for her mother pursuant to the “durable power of attorney,” a certified copy of which was attached to the election. Section 732.201, et seq. covers the surviving spouse’s rights to an elective share of a decedent’s estate and is designed to permit such spouse to get a greater share of the decedent’s estate than she might be able to get under a will. This is what happened here — the will excluded the spouse and she, through her attorney in fact, chose to take the statutory elective share, which consists of 30% of the fair market value of the estate property after deductions for claims and liens against the estate and its assets. See: §§ 732.206, 732.207, Fla.Stat. (1981).

In our consideration of this case we have weighed the arguments of the parties and considered the intent of the legislature as we perceive it. The appellee makes an argument that we should look to the intentions of the testator and cause his will to be enforced. Appellee cites First National Bank of St. Petersburg v. MacDonald, 100 Fla. 675, 130 So. 596 (1930), and emphasizes that this case declared that the guardian of a widow could not elect for the widow to take her dower rights as opposed to under a will. The court said only the widow herself could do that. MacDonald was decided before' we had elective shares, before" dower was abolished, before Section 732.210 was enacted and without regard to any of these things. MacDonald holds: “our statute does not in words or by fair implication extend the right to renounce the provisions of the husband’s will to his insane widow or to her guardian for her.” 130 So. at 598. When this statement and the current statutory provisions are considered together we are compelled to the conclusion that MacDonald is supportive of appellant’s position, and this opinion, rather than appellee’s. In Section 732.210, Florida Statutes (1981) the legislature expressly gives two persons the power to exercise an election: the surviving spouse or the guardian of her property. Paraphrasing MacDonald, the current statute on elective share clearly in words authorizes someone other than the widow herself to make the election. The holder of a durable family power of attorney is appointed by the donor of the power, and essentially performs the same functions as would a court appointed guardian. While not a “guardian” in the legal sense, the attorney in fact has fiduciary duties similar in nature.

Without regard to exactly who the legislature meant in Section 732.210(2), and even if it meant the more restrictive court appointed guardian of the property, we find it easy, and more appropriate, to say that the donee of a durable family power of attorney falls within Section 732.210(1). This is because according to the terms of the power of attorney and the statute governing powers of attorney, the act of the donee is the act of the surviving spouse.

We attach great significance to the legislature’s directions in Section 732.210(2), “The court having jurisdiction of the probate proceeding shall determine the election as the best interests of the surviving spouse require.” This can be said in another way: When the will of the testator and the wishes of the surviving spouse collide, then the wishes prevail over the will to the extent of an elective share. It can hardly be said that it is against the interest of the surviving spouse to opt to take an elective share in this case since the will left her nothing.

The donee of the durable family power of attorney had the authority to exercise the right of election to the elective share and the trial court erred in declaring otherwise. The orders and judgment against the widow’s elective share rights are reversed and this cause is remanded for entry of an order confirming the right of the widow to her elective share and such further proceedings as are necessary to distribute the estate accordingly.

REVERSED and REMANDED.

ORFINGER, C.J., and COWART, J., concur.

      . Section 709.08, Florida Statutes (1981) provides:
      Durable family power of attorney.—
      (1) A principal may create a durable family power of attorney designating his spouse, parent, child, whether natural or adopted, brother, or sister his attorney in fact by executing a power of attorney. Such power of attorney shall be in writing, shall state the relationship of the parties, and shall include the words, “This durable family power of attorney shall not be affected by disability of the principal except as provided by statute” or similar words clearly showing the intent of the principal that the power conferred on the attorney in fact shall be exercisable from the date specified in the instrument, notwithstanding a later disability or incapacity of the principal, unless otherwise provided by statute. All acts done by the attorney in fact pursuant to the power conferred during any period of disability or incompetence shall have the same effect, and inure to the benefit of and bind the principal or his heirs, devi-sees, and personal representatives, as if the principal were competent and not disabled.
      (2) The durable family power of attorney shall be nondelegable and shall be valid until such time as the donor shall die, revoke the power, or be adjudged incompetent. At any time, a petition to determine competency of the donor or a petition to appoint a guardian for the donor has been filed, the durable family power of attorney shall be temporarily suspended. Notice of the pending petition shall be given to all known donees of the power. The power shall remain suspended until the petition is dismissed, withdrawn, or the donor adjudged competent, at which time the power shall be automatically reinstated and any exercise of the power shall be valid. If the donor is adjudged incompetent, the power shall be automatically revoked.
      (3) Property subject to the durable family power of attorney shall include all real and personal property owned by the donor, the donor’s interest in all property held in joint tenancy, the donor’s interest in all nonhome-stead property held in tenancy by the entirety, and all property over which the donor holds a power of appointment. Nothing in this section shall permit the donee of a durable family power of attorney, when the donor is married, to mortgage or convey homestead property without the joinder of the spouse or the spouse’s legal guardian, but the joinder may be accomplished through the exercise of a power of attorney.
      (4) Whenever an emergency shall arise between the time a petition is filed and an adjudication is made regarding the competency of the donor, the donee of the durable family power of attorney may petition the court for permission to exercise the power. The petition shall specify the emergency, the property involved, and the proposed action of the donee. No exercise of the power by the donee during this time period shall be valid without the permission of the court.

      . Section 732.210 Florida Statutes (1981) states:
      By whom exercisable. — The right of election may be exercised:
      (1) By the surviving spouse.
      (2) By a guardian of the property of the surviving spouse. The court having jurisdiction of the probate proceeding shall determine the election as the best interests of the surviving spouse require.


author: MILLS, Judge.

text:
    Lawana BURKETT and Janice Maddox, Appellants, v. CALHOUN COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. AQ-351.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.
    Paul D. Srygley, Tallahassee, for appellants.
    John M. Fite of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fensom, Panama City, for appellee.
   MILLS, Judge.

Burkett and Maddox appeal the trial court’s order dismissing their negligence complaint against Calhoun County for failure to comply with the notice provision contained in Section 768.28(6), Florida Statutes (1981). We affirm.

On 29 May 1978, at an intersection in Calhoun County, a vehicle in which Lawana Burkett was a passenger collided with another vehicle which was being driven by Janice Maddox. Both Burkett and Maddox were injured in the accident.

They filed a complaint against Calhoun County on 26 May 1982, alleging that the County negligently maintained the right-of-way at the intersection and that its negligence was the proximate cause of their injuries. Calhoun County filed a motion to dismiss the complaint, contending that the plaintiffs did not notify the Department of Insurance of their claim within three years of the date of the accident as required by Section 768.28(6), Florida Statutes (1981). The trial court granted the motion.

Burkett and Maddox contend on appeal that the notice provision of Section 768.-28(6) does not apply to their suit because Calhoun County had waived its sovereign immunity by securing liability insurance as authorized by Section 286.28, Florida Statutes (1981). We cannot agree with that contention.

Section 286.28 authorizes political subdivisions of the State to secure liability insurance, and that section goes on to provide that the sovereign immunity of those subdivisions is waived to the extent of the coverage. Section 768.28(10) evidences a legislative intent not to repeal Section 286.28. Nevertheless, Section 768.28 represents a complete overhaul of the area of sovereign immunity law in Florida. Dade County School Board v. Ingraham, 428 So.2d 283 (Fla. 3d DCA 1983). Section 768.28(1) waives sovereign immunity “only to the extent specified in this act.” Therefore, we believe that it was the intent of the legislature to require compliance with the notice provision of Section 768.28(6) whether or not the political subdivision elected to carry liability insurance.

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur,


author: WENTWORTH, Judge.

text:
    MANASOTA-88, INC., and Booker Creek Preservation, Inc., Appellants, v. DEPARTMENT OF ENVIRONMENTAL REGULATION and Gardinier, Inc., Appellees.
    No. AQ-480.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.

      Thomas W. Reese, St. Petersburg, for appellant Manasota-88, Inc.
    Peter B. Belmont, St. Petersburg, for appellant Booker Creek Preservation, Inc.
    William W. Deane, Asst. Gen. Counsel, Dept, of Environmental Regulation, Tallahassee, for appellee Department of Environmental Regulation.
    Robert L. Rhodes, Jr., and Lawrence E. Sellers, Jr., of Holland & Knight, Lakeland, for appellee Gardinier, Inc.
    Stephen W. Metz, Tallahassee; Robert M. Rhodes & Terry E. Lewis, Tallahassee, for appellee, amicus curiae.
   WENTWORTH, Judge.

Appellants are private, non-profit environmental protection corporations that filed a joint petition with the Department of Environmental Regulation requesting party status in the non-adversary, free-form licensing proceedings between DER and Gar-dinier Inc. DER denied the request, and we affirm.

Gardinier owns and operates a phosphoric chemical plant in Hillsborough County at the mouth of the Alafia River. It is currently proposing major modifications to the plant and has filed numerous permit applications pursuant to the licensing provisions of § 120.60. DER has not yet issued a notice of proposed agency action on those applications. Pla.Admin.Code Rule 17-1.62.

Appellants derive their theory of entitlement to intervene at this stage from several statutory provisions. First, § 120.60(2) which provides in part that:

When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch, ...

Second, § 120.52(8), which provides:

(8) “Licensing” means the agency process respecting-the issuance, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license or imposition of terms for the exercise of a license.

Appellants interpret the quoted statutes as providing that licensing proceedings commence when an application for permitting is filed. Appellants then assume such is the case and assert that § 403.412(5) is a provision bestowing party status upon them by the definition found in § 120.52(10)(b). Section 403.412(5) provides:

(5) In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or 'will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state, (e.s.)

Since appellants have filed a pleading asserting that Gardinier’s proposed activities will have the effect of impairing, polluting, or otherwise injuring the state’s environment, they argue that their request for party status should be granted.

In defending its denial, DER relies heavily upon this court’s recent opinion in Greene v. Department of Natural Resources, 414 So.2d 251 (Fla. 1st DCA 1982). According to DER, appellants are attempting to use Chapter 403 to initiate a § 120.57 proceeding which is prohibited by Greene. While we affirm the denial of the request for party status at this stage of the activity between DER and Gardinier, we find DER’s interpretation of Greene to be unnecessarily broad as discussed more fully below.

We affirm the denial of the petition because we discern no legislative intent in § 403.412(5) to permit intervention during the free-form, informal process between the time an application is filed and the notice of proposed agency action is issued. If the proposed agency action is to deny the applications, and the applicant does not request further proceedings under Chapter 120, there will be no activity “to be licensed or permitted.” Conversely, until an agency proposes to issue a license or permit, it cannot be said that the objectionable activity is “to be licensed or permitted” as required by § 403.412(5). Thus, licensing proceedings do not commence for purposes of § 403.412(5) until DER issues its notice of proposed action.

In the event that the Department does propose to issue the permits to Gardi-nier, § 403.412(5) would appear to be a statutory provision entitling appellants to participate as a party in the proceedings under § 120.52(10)(b), including initiationof a § 120.57 hearing. Greene holds only that a citizen may not in reliance on § 403.412(5) initiate a § 120.57 hearing when there is no licensing or permitting proceeding involved, or when there is an absence of the statutorily required allegations with respect to injury to the environment. It does not follow that a citizen is precluded from initiating § 120.57 proceedings when the department does propose to proceed with the granting of licenses or permits. When an entity meets the standing requirements of § 403.-412 and achieves party status, the statutory scheme would generally if not always permit a determination that the substantial interests of the parties will be affected by the proceedings. The cited provisions should accordingly be construed so that upon notice of proposed agency action which allegedly has or will have an effect of impairing, polluting, or otherwise injuring the natural resources of the state a party may intervene and initiate further proceedings by filing the appropriate verified petition in accordance with § 403.-412(5).

The order denying appellants’ request for party status in the non-adversary proceedings is affirmed.

LARRY G. SMITH and JOANOS, JJ., concur.

      . (10) “Party” means:
      (b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.


author: FERGUSON, Judge.

text:
    Paul OWEN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-342.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 21, 1983.

      Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill and William P. Thomas, Asst. Attys. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant was charged with first-degree murder. A jury rejected his defense of self-defense and returned a verdict for second-degree murder. The court imposed a sixty-year sentence, then enhanced it by retaining jurisdiction to veto parole during the first one-third of the sentence pursuant to Section 947.16, Florida Statutes (1981). As justification for the retention of jurisdiction, which justification must be stated “with individual particularity,” Section 947.16(3)(a), the court announced:

[T]he offense was [a] deliberate act and bolstered by considerable time by consumption of alcohol, apparently enough to carry it out.

Section 947.16(3), Florida Statutes (1981) has generated considerable discussion in recent months. The only point about which there is general agreement is that the authority given judges to retain jurisdiction in individual cases is totally devoid of legislative guidelines. See Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1980). It is also generally agreed that the justification given by the trial court for sentence enhancement is reviewable on' appeal for substance and reasonableness, Moore v. State, and for the purpose of insuring that other rights of the defendant are not violated in the process. See Harden v. State, 428 So.2d 316 (Fla. 4th DCA 1983) (defendant’s exercise of his constitutional right against self-incrimination cannot be the basis for enhancement of his sentence).

A trial judge has considerable discretion in imposing a sentence but that discretion has always been subject to limited appellate review to determine whether the factors taken into consideration are relevant and reliable. Fraley v. State, 426 So.2d 983 (Fla. 3d DCA 1983). Retention of jurisdiction for the purpose of vetoing parole is but part of the sentencing process. It is against this backdrop that we consider the “justification with individual particularity” of the enhanced sentence imposed in this case.

As justification for the enhancement the court states, in other words, (1) defendant committed the offense [murder] after deliberation, and (2) defendant consumed enough alcohol over a period of time to bolster courage to commit the murder.

It was undisputed that appellant sought out and shot the victim because appellant’s girlfriend complained to him that the victim, who had a reputation for violence, had attempted to force her into an unnatural sex act. Appellant raised two defenses at trial (1) self-defense, and (2) voluntary intoxication. The jury rejected his defense of self-defense. It appears, however, that the jury accepted his defense of voluntary intoxication.

Our first reason for reversing the court’s retention of jurisdiction is on solid footing. The defendant’s commission of a deliberate act of murder, the court’s first justification, is inconsistent with the jury verdict. Deliberate, in the context of its usage herein, implies a planned or premeditated act to effect the death of a particular person. “Deliberation” is often used interchangeably with “premeditation” to describe the essential element of first-degree murder. The jury acquitted on the first-degree murder charge and convicted for second-degree murder, the elements of which are the perpetration of an “act imminently dangerous to another and evincing a depraved mind ... without any premeditated design to effect the death of any particular individual ....” [e.s.] The trial judge’s view of the evidence may be entirely correct but he is not free to disregard the jury’s findings even for the purpose of enhancing a sentence. See State ex rel. Cavanaugh v. Coe, 439 So.2d 313 (Fla. 2d DCA 1983) (a trial court may not refuse to issue a certificate for a defendant to recover costs on a theory that the defendant is factually guilty even though the jury found him not guilty).

The second part of the court’s stated reason for retaining jurisdiction, defendant’s voluntary consumption of alcohol for the purpose of bolstering courage, is also irrelevant to a conviction for second-degree murder, and therefore cannot support the sentence enhancement.

First, the finding that the defendant consumed a large volume of alcohol is supported by the evidence but that it was done for the purpose of bolstering the courage to commit murder is contrary to the jury verdict. Further, the use of alcohol was injected into the trial of the cause as a defense to first-degree murder. One whose faculties are sufficiently impaired from alcohol consumption may be incapable of forming the specific intent which is essential to first-degree murder. The jury acquitted defendant of first-degree murder, from which it may be inferred that the voluntary intoxication defense was accepted by the jury. To permit a sentencing court to then rely on the fact of voluntary intoxication,- which in itself is not criminal conduct, as a reason for enhancing a sentence after a jury has considered that same factor in acquitting for the higher offense (here, first-degree murder), would have a chilling effect on the assertion of valid defenses. Where a defendant’s assertion of a valid defense to a criminal charge in a jury trial must be circumscribed because the trial court may use the defense — especially if believed by a jury — as a basis for aggravating a sentence in the event of conviction for a lesser included offense, the constitutional right to an unfettered trial by jury is impaired. We think that enhancement of a sentence because defendant asserted voluntary intoxication as a defense is as unfair as is the use of the assertion of a fifth amendment privilege for that purpose. See Harden v. State.

Within the scope of our limited review, we hold that the factors relied upon by the court for the purpose of retaining jurisdiction were irrelevant and inconsistent with the jury’s verdict.

The challenges to the conviction are without merit.

We AFFIRM the conviction and sixty-year sentence; the retention of jurisdiction over the first third of the sentence is VACATED.

      . Retention of jurisdiction which empowers a trial court to veto a parole recommendation and deny release pursuant to gain time is, in effect, an enhancement of a sentence. State v. Williams, 397 So.2d 663 (Fla.1981).

      . Section 947.16(3)(a), Florida Statutes (1981) provides:
      In retaining jurisdiction for the purposes of this act, the trial court judge shall state the justification with individual particularity, and said justification shall be made a part of the court record.

      . The lack of statutory guidelines also suggests a constitutional infirmity.

      . “ ‘Premeditation” and ‘deliberation’ are synonymous terms, which, as elements of first-degree murder, mean simply that the accused, before he committed the fatal act, intended that he would commit the act at the time that he did, and that death would be the result of the act.” Sanders v. State, 392 So.2d 1280, 1282 (Ala.Cr.App.1980). Deliberation is the element which distinguishes first and second degree murder. State v. Swart, 485 S.W.2d 90 (Mo. 1972). It is defined as a prolonged premeditation and so is even stronger than premeditation. See State v. Hall, 40 N.M. 128, 55 P.2d 740, 742 (1935).

      .Section 782.04(2), Florida Statutes (1981) provides in part:
      The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree ....

      . Voluntary intoxication is an absolute defense to any crime requiring specific intent. Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983); Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979).


text:
    COSTA BELLA DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. COSTA DEVELOPMENT CORPORATION, Miguel Recarey, Jr., Olga Recarey, Miguel Recarey and Carmen Recarey, Appellees.
    No. 82-711.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 21, 1983.

      Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Lapidus & Stettin and Robert P. Frankel, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The order of the court dismissing plaintiff’s complaint with prejudice for failure to comply with an order of discovery was warranted where it was demonstrated that plaintiff had failed to use every available means to produce the original note sued upon after a passage of more than ample time to comply. The sanction of dismissal on this record, which shows that the failure to comply was a calculated act of bad faith, see A.H. Robins Co., Inc. v. Devereaux, 415 So.2d 30 (Fla. 3d DCA 1982), rev. denied, 426 So.2d 25 (Fla.1983); Watson v. Peskoe, 407 So.2d 954 (Fla. 3d DCA 1981); Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971), was not an abuse of discretion.

However, in affirming the dismissal of the action we vacate its dismissal as to Miguel Recarey, Jr. and Olga Recarey who were not named defendants and were not properly before the court as parties.

The dismissal as it relates to Miguel Re-carey, Jr. and Olga Recarey is VACATED; in all other respects the order of dismissal is AFFIRMED.

      . Appellant commenced this action to foreclose on a mortgage. The record reflects that prior to this action the mortgage had been assigned to the Bank of Miami, which had assigned it to Latin American Development Bank & Trust Co., Ltd. Latin American Bank & Trust had also brought an action, then pending before the same judge, to foreclose the same mortgage. Appellees have not challenged the right of the assignee Latin American Bank & Trust to sue on the instrument but do challenge the right of appellant-assignor to maintain this separate action on the same instrument. Only one action can be maintained and in the absence of a reassignment of the mortgage to appellant, or knowledge and consent by the assignee of the appellant’s action (which is not yet determined), it is only assignee Latin American Bank & Trust, and not the appellant, which can maintain the action. See Laing v. Gainey Builders, Inc., 184 So.2d 897 (Fla. 1st DCA 1966). The court understandably wished to avoid two separate full-blown trials. Production of the original note was relevant and material to the appellees’ pending motion to dismiss on the ground that appellant was not the real party in interest.


text:
    Stanley A. KANTAINIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2219.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 21, 1983.
    Andrew H. Boros, Miami, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendant’s convictions are affirmed. See State v. James, 404 So.2d 1181 (Fla. 2d DCA 1981); Budman v. State, 362 So.2d 1022 (Fla. 3d DCA 1978); Bates v. State, 102 So.2d 826 (Fla. 2d DCA 1958). The indeterminate sentences of five to fifteen years imposed on Counts I and II, conceded by the State to be invalid under Section 921.18, Florida Statutes (1981), see Lee v. State, 404 So.2d 860 (Fla. 1st DCA 1981); Cox v. State, 344 So.2d 1324 (Fla. 2d DCA 1977), are reversed and the cause remanded to the trial court for the entry of indeterminate sentences of six months to fifteen years.

Affirmed in part; reversed in part.