author: HERSEY, Judge.

text:
    COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION OF the PALM BEACHES, Appellant, v. Karen L. WRIGHT, Guardian of the Person and Property of Robert W. Olsker, Jr., Appellee.
    No. 83-1079.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1984.
    Rehearing Denied Sept. 7, 1984.

      Frederick M. Dahlmeier of Cromwell & Remsen, Riviera Beach, for appellant.
    Charles L. Brown, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee-Robert W. Olsker, Jr.
   HERSEY, Judge.

Community Federal Savings and Loan Association of the Palm Beaches (the mortgagee) appeals from a non-final order setting aside a default and final judgment in a foreclosure proceeding.

Robert W. Olsker executed promissory notes and two mortgages encumbering the real property which ultimately became the subject matter of these foreclosure proceedings. Upon his death the property was set aside as homestead and the fee simple title vested in Robert W. Olsker, Jr., who was at all pertinent times a minor (the minor). Karen L. Wright, a step-sister of the minor, was appointed as guardian of his person and property (the guardian).

Although funds were available in a guardianship account the guardian failed to make mortgage payments, whereupon foreclosure proceedings were instituted by the mortgagee. The complaint and all subsequent pleadings named as sole defendant “Karen L. Wright as guardian of the person and property of Robert W. Olsker, Jr.” Service of process was effected on the guardian and on her resident agent. Inexplicably, no responsive pleadings were filed and ultimately a default and final judgment were entered. In due course the property was sold at a foreclosure sale to the highest bidder for a price of $36,000, although it was stipulated that the property was worth in excess of $100,000. The mortgagee was paid in full from the proceeds of the sale. A certificate of title was duly issued by the clerk.

The minor and his step-sister (the guardian) were evicted by the sheriff. The minor then learned for the first time of the foreclosure proceedings and, indeed, of the default in making the mortgage payments. He successfully petitioned for the appointment of a guardian ad litem who filed the motion to set aside the default judgment and as well, the sale of the property, pursuant to Florida Rule of Civil Procedure 1.540.

Apparently because the trial court felt that the sale itself could not be set aside before joinder of the purchaser, an order was entered setting aside only the default and the final judgment of foreclosure.

The mortgagee appeals, advancing five points for our consideration.

First, it is contended that the purchaser at the foreclosure sale is an indispensible party to proceedings which result in setting aside the final judgment ordering such sale. We need not decide this point since, in any event, the purchaser became a party by virtue of his motion to set aside the notice of lis pendens filed by the guardian ad litem subsequent to the judicial sale.

The motion to set aside the notice of lis pendens did not question the jurisdiction of the court over the person of the purchaser. While it is true that it is no longer necessary to appear specially to contest the jurisdiction of the court in order to preserve the defense of lack of jurisdiction, it is also true that where some affirmative action is taken it must be coupled with an objection to the jurisdiction of the court over the person or such jurisdictional inadequacy is waived. Green v. Hood, 120 So.2d 223 (Fla. 2d DCA 1960); Fla.R.Civ.P. 1.140(h). Clearly, a motion to set aside a lis pendens subjects the movant to the jurisdiction of the court. Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966). In addition, the purchaser was given notice of all proceedings subsequent to the sale and the purchaser’s attorney attended each of the two hearings on the motion to vacate the default. The fact that the purchaser’s attorney chose to take no active part in those proceedings is of no consequence. For all practical purposes the purchaser was a party to the action upon the filing of the motion to set aside the notice of lis pen-dens.

Appellant’s second point on appeal concerns the question of whether a minor is an indispensible party in an action “wherein his duly authorized and appointed guardian has been named and service of process is obtained upon such guardian in a manner provided by law.” Fee simple title to the real property encumbered by the mortgages sought to be foreclosed was in the minor. It is well established that in an action to foreclose a mortgage the owner of the fee simple title is an indispensible party. See 37 Fla.Jur.2d Mortgages and Deeds of Trust § 296, at 262 n. 26. This is so even where the titleholder is a minor. See 39 C.J.S. Guardian and Ward § 179, at 359, 360 (A ward is a necessary .party to a suit affecting his title to real property and cannot be bound by such an action brought against the guardian alone.) and 39 Am.Jur.2d Guardian and Ward § 153, at 119 (“[A]ll actions relating to the property of the ward ... must be brought against the ward himself, and not against the guardian.”). Throughout appellant’s brief the statement is made that the minor was not made a party. This concession is reinforced by the pleadings and the balance of the record from the trial court. We therefore conclude that the judgment of foreclosure is void because the minor was never made a party.

Parenthetically we note that the parties exchange arguments as to the necessity of “formal notice” under Florida Rule of Probate and Guardianship Procedure 5.040(a), and the type of service of process appropriate under the circumstances present in this case. The concept of “formal notice” is peculiar to probate and guardianship proceedings in the probate division of circuit court. It has no application to suits of a civil nature filed in other divisions of circuit court. Fla.R.P. & G.P. 5.010. The sufficiency of service of process in civil litigation is controlled by Florida Rule of Civil Procedure 1.070 and Chapter 48, Florida Statutes (1983), whether or not the party is a minor or other incompetent.

As to the type of service of process, appellant takes the position that, where a guardian has been appointed, service may be perfected on a minor by delivering a copy of the process, together with the complaint, petition or other initial pleading, to the guardian. §§ 48.041(2) and 48.031, Fla. Stat. (1983). However, appellant fails to read section 48.041(2) in pari materia with section 48.041(1). Section 48.041(1) states that service on incompetents is accomplished by reading the process to the minor and to the person in whose custody the minor is and by further serving said process on the guardian ad litem or other person if one is appointed by the court to represent the minor. Subsection 2 merely provides the method of service on the guardian by reference to section 48.031. The minor was never named in the instant suit much less read the process. The latter procedural deficiency would render the final judgment voidable on appeal, Smith v. Langford, 255 So.2d 294 (Fla. 1st DCA 1971); Williams v. Richardson, 432 So.2d 58 (Fla. 3d DCA 1983); however, here the judgment of foreclosure is void for the reasons previously indicated.

Further appellant argues that since the provisions for notice and virtual representation apply in guardianship, citing section 744.106, Florida Statutes (1983), then any judgment entered against a guardian binds the ward even if such judgment results from a default. This is clearly wrong. Although section 731.303(2)(b)(l) provides that, to the extent there is no conflict of interest between them, orders binding a guardian of the property bind the ward whose estate he controls, this hypothesis is limited to probate and guardianship proceedings in which a judgment has been entered in due course and with due process. Even this concession is more an exception than a rule. And it is clearly not the rule in other civil litigation, except in the case of a guardian ad litem appointed to represent the incompetent in the particular litigation. Without the minor before the court, conflict of interest might be impossible to detect. Therefore while it is true that the . guardian may represent the interests of his ward, it is not true that the ward need not be made a party in an action to foreclose a mortgage. Compare Florida Rule of Civil Procedure 1.210(a), which provides that a guardian may sue in his own name without joining with him the real party in interest, with 1.210(b), which provides that the guardian may sue or defend on behalf of the infant or incompetent person. (By negative implication the guardian cannot defend in his own name.)

Appellant’s third point on appeal is whether a court may enter a default judgment against a duly appointed and authorized guardian. We discuss this point only briefly, because our disposition of the case is based upon appellant’s second point on appeal.

Appellant’s first argument under this point relies upon an interpretation of Florida Rule of Civil Procedure 1.500(e), which provides in part as follows:

(e) Final Judgment. Final Judgments after default may be entered by the court at any time but no judgment may be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator or other representative who has appeared in it or unless the court has made an order under Rule 1.210(b) providing that no representative is necessary for the infant or incompetent.

Appellant contends that the phrase “who has appeared in it” modifies only the term “other representative” so that it is not necessary that a “general guardian” have “appeared in” the suit in order for a final judgment to be entered after default. We suggest this is an incorrect reading of the rule. The jurisprudence is repleat with examples of judicial solicitude for the rights of incompetents. So much so, that it has often been said that an incompetent is the ward of the court. Clearly, if a final judgment is to be entered against an incompetent after a default, the very least protection that courts should afford is to require that the guardian of the incompetent enter an appearance in the action. Thus we hold that, even if the ward had been made a party and service of process upon him had been appropriately perfected, the default would have been improper.

Appellant next maintains, alternatively, that Rule 1.500(e) would not apply here because “the rule only limits judgments against an infant or incompetent person. It is clear in this case that no judgment was entered against an infant or incompetent person .... A judgment was entered [only] against the guardian of the person and property of said infant.” The fallacy behind this argument is self-evident. If such were the case the protections of the rule could be avoided and the purpose of the rule frustrated by the simple expedient of naming the guardian and not the ward. We disavow such an interpretation.

Finally, under this point, appellant reminds the court that the guardian has authority without court approval to waive any defense arising in the foreclosure action. We suggest this is an incorrect statement of the law. The authority of a guardian is seriously circumscribed by statute. The powers and the limitation on the powers of a guardian to act are set out in Chapter 744, Florida Statutes. In section 744.387(3)(a), it is provided that no settlement after an action has been commenced by or on behalf of a minor or other incompetent shall be effective unless approved by the court having jurisdiction of the action. Again in Section 744.441 the guardian may act only after obtaining approval of the court in (7) abandoning property (and basically this is what happens if a mortgage is permitted to be foreclosed without objection by the guardian), (11) prosecute or defend claims for the protection of the ward’s estate, and (12) to sell, mortgage or lease any real or personal property. The guardian thus labors under the most careful scrutiny in dealing with a ward’s property. To suggest cavalierly that a guardian may waive any defense in a foreclosure action without court approval is inimical to the philosophy underlying the relationship between guardian and ward and the position of that relationship within the framework of our judicial system.

Appellant’s fourth point on appeal is whether a final default judgment can be set aside under Florida Rule of Civil Procedure 1.540, based on “judicial error.” The trial court indicated during the course of the hearings that he had been remiss in failing to take into account the minor’s status, and perhaps in failing to appoint a guardian ad litem to represent his interests. This is apparently the judicial error upon which the order setting aside the default rests. Nonetheless, we are instructed by Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) that a pronouncement of the trial court may be right for the wrong reason and should be affirmed if it is right for any reason. We have previously determined that the judgment of foreclosure is void. Consequently, the defect is clearly reachable under Florida Rule of Civil Procedure 1.540(b)(4): “[T]he judgement or decree is void.” The cases cited by appellant have no application in the context of a void judgment.

Appellant’s final point on appeal deals with excusable neglect as that term is used in Florida Rule of Civil Procedure 1.540(b) and has no application on the facts of this case.

The conclusion we reach in this case may well ultimately result in the setting aside of the judicial sale. While that may seem a somewhat harsh result, it is no more harsh than depriving an incompetent of his property as the result, of a proceeding in which he was not a party and of which he had no notice. Further, the purchaser was on notice, at least constructively, of the fundamental deficiencies in the foreclosure proceedings.

A sale by the guardian must strictly comply with the order authorizing it, and must be in accordance with the provisions of law giving the court jurisdiction of the proceedings.
The doctrine of caveat emptor, which applied in its utmost vigor and strictness to those claiming under judicial sales, applies to guardianship sales.

28 Fla.Jur.2d Guardian and Ward § 63 and cases there cited. (Emphasis added.)

We therefore affirm the order setting aside the default and final judgment and remand for further appropriate proceedings.

AFFIRMED.

ANSTEAD, C.J., and BERANEK, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Carl Joseph JONES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1054.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Rehearing Denied Aug. 1, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Carl Joseph Jones appeals convictions of first degree felony murder, kidnapping and attempted robbery. We reverse and remand for a new trial.

This case arose out of a shooting which occurred on January 9, 1983, at approximately 8:00 p.m. The victim was found in his car with gunshot wounds to his hip and his heart, and died shortly thereafter.

The evidence at trial established that on the day of the shooting appellant and three codefendants robbed “a gay guy who wanted to buy some pot.” After a brief altercation in which the victim was driven to a schoolyard, frisked, threatened with a gun belonging to appellant, and beaten, the victim was shot twice by appellant. The next day when one of the accomplices took police to Darryl Donald’s house, where the murder weapon was alleged to be located, Donald stated that appellant had already picked up the gun. Approximately one week later, Donald gave the police a taped statement that appellant told him he had been involved “in a little shooting.” At trial, however, Donald denied telling police that appellant admitted being in a shooting. The tape was admitted into evidence over a defense objection that it was “improper.”

The state and defense counsel agreed prior to trial that no alternate juror would be chosen, and that in the case of a juror becoming incapacitated the trial would continue with eleven. When one juror did ask to be excused, the following interchange took place between the trial judge, defense counsel (Mr. Smith), and counsel for the state (Mr. Gordon):

THE COURT: Do you stipulate to excuse this lady from the jury?
MR. SMITH: I have to. I don’t want her sitting there in pain.
MR. GORDON: Stipulated.
THE COURT: I’ll excuse you. Go down to the fifth floor. You must be excused from the jury panel.
Thank you, ma’am.
(Whereupon, the jury was returned to the jury box.)
THE COURT: Okay. Both sides have stipulated to go with 11 jurors, rather than declaring a mistrial and having to start this thing all over again. Apparently, the lady hurt her finger yesterday. I asked her why she didn’t tell me yesterday. She said that it didn’t hurt that much.
Let the record reflect the jury is back in the jury box, the Defendant is present with counsel and the State is represented.

Jones complains, on appeal, that he was entitled to be tried by a jury of twelve. We agree.

Preliminarily, appellant’s claim that his waiver of a twelve-person jury was invalid alleges a fundamental error, Nova v. State, 439 So.2d 255 (Fla. 3d DCA 1983), and is therefore permissibly raised for the first time on appeal. Castor v. State, 365 So.2d 701 (Fla.1978). Although the third district in Groomes v. State, 401 So.2d 1139 (Fla. 3d DCA 1981), declined for lack of preservation to consider the validity of a stipulation that the state waive the death penalty and the defendant be tried by a six-person rather than a twelve-person jury, Groomes involved a valid written waiver signed by counsel for both parties, as well as by the defendant and the defendant’s mother.

Appellee relies on United States v. Spiegel, 604 F.2d 961 (5th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980), to refute appellant’s contention that effective waiver necessitates a finding that the defendant in some way endorsed the action of his counsel in waiving the presence of a twelfth juror. Indeed, Spiegel held that “a waiver made by counsel of the right to a twelve-person jury after intelligent and deliberate discussion in open court satisfies rule 23(b) [Federal Rules of Criminal Procedure] and passes constitutional muster.” Id. at 965 (citing Horne v. United States, 264 F.2d 40 (5th Cir.), cert. denied, 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549 (1959)). However, two aspects of Spiegel bear significantly on its application to the present case. First, Spiegel involved a written stipulation waiving the requirement of twelve jurors, whereas here there was no writing. Second, Spiegel involved construction of Federal Rule of Criminal Procedure 23, subsections (a) and (b), which state that although under (a) “trial by jury” must be waived by the “defendant,” under (b) “the parties” may stipulate, in writing, to a lesser number of jurors. Spiegel held that trial counsel came within the meaning of “parties.”

It is clear that in Florida the waiver of trial by jury must be written and it must be signed by the defendant. Fla.R.Crim.P. 3.260 and Sessums v. State, 404 So.2d 1074 (Fla. 3d DCA 1981). Florida Riile of Criminal Procedure 3.260 states simply that “[a] defendant may in writing waive a jury trial with the consent of the State,” and Florida Rule of Criminal Procedure 3.270 states: “Twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases.” The waiver of the prescribed number of jurors is addressed solely in case law dealing with plea agreements in which a defendant agrees to a jury of six in exchange for a lesser sentence. See, e.g., Groomes, 401 So.2d at 1140, and Nova, 439 So.2d at 260. However, because a defendant’s right to twelve jurors in the trial of a capital case is fundamental, as Nova holds, standards applicable in such cases would be identical to those in a case, such as here, where a trial is held before an eleven-person jury. Discussing this fundamental right the Nova court stated:

Nova’s claim that his waiver of a twelve-person jury was invalid alleges a fundamental error. A defendant in a capital case in Florida is entitled to a twelve-person jury as a matter of state constitutional law. Article I, Section 22 of the Florida Constitution secures the right of trial by jury and provides that “the number of jurors, not fewer than six, shall be fixed by law.” The number of jurors fixed by law to try all capital cases is twelve. Fla.R.Crim.P. 3.270.
In Cotton v. State, 85 Fla. 197, 95 So. 668 (1923), the defendant was tried and convicted of first-degree murder. Before trial the defendant timely filed a plea in abatement, challenging the indictment as having been returned by a grand jury which contained a person incompetent to serve. His request that this challenge be determined by a jury of twelve was denied, and his challenge to the make-up of the grand jury was submitted to a six-person jury. The Florida Supreme Court reversed Cotton’s conviction, holding that a trial on the defendant’s plea in abatement required a jury of twelve.
“The trial on the plea in abatement was not a trial of ‘other criminal cases’ as differentiated from ‘capital cases.’ Sec. 6008, Rev.Gen.Stat. It was not the trial of a criminal case less than a capita] case, nor was it the trial of a civil cause. The statute authorizing a trial by a jury of six men is therefore not applicable. It follows inescapably that the defendant was entitled to a trial on the issue made by his plea in abatement by a jury of twelve, and that a trial by a jury of six amounted to a denial to him of a jury trial such as he is entitled to under the law.
“[A] trial of the issue made by the plea in abatement by a jury of a less number than the law prescribes deprived the defendant of a right he was entitled to claim, and did claim, under the express provisions of the law of the land. Denial to him of this right by the court results in a lack of due process of law that is commanded by the Constitution.” Cotton v. State, 85 Fla. at 202, 95 So. at 670.
Thus, Cotton holds that so long as a twelve-person jury is fixed by law to try a person accused of a capital crime, the right to a jury of that number is constitutional and an invasion of that right a denial of due process.

439 So.2d at 261-62 (footnote omitted).

We therefore hold that the absence of a written stipulation renders appellant’s waiver void.

Appellant’s second point on appeal concerns itself with the question of the propriety of a ruling which permitted the state to impeach its own witness, who had not been shown to be an adverse witness. This was clearly error. See § 90.608(2), Fla.Stat. (1983). See also Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976). However, it was not preserved by an objection made with specificity as to the grounds which would have precluded impeachment.

Finally, appellant correctly argues that he could not be convicted both for felony murder and for the underlying felony upon which the felony murder is based. The rule applicable here had its metamorphosis in Florida law in the following cases: State v. Pinder, 375 So.2d 836 (Fla.1979); State v. Hegstrom, 401 So.2d 1343 (Fla.1981); State v. Monroe, 406 So.2d 1115 (Fla.1981); Faison v. State, 426 So.2d 963 (Fla.1983); and Bell v. State, 437 So.2d 1057 (Fla.1983). See also the analysis by Chief Judge Orfinger in Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), with which we agree.

Because appellant’s waiver of the right to be tried by a jury of twelve was not in writing, we reverse and remand for a new trial.

REVERSED and REMANDED.

GLICKSTEIN and WALDEN, JJ„ concur.


author: PER CURIAM.

text:
    TOLL-McCLENEGHAN CORP., 60, Appellant, v. Harold E. SCHWARTZ and Evelyn Schwartz, his Wife, Appellees.
    No. 83-2553.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Rehearing Denied July 26, 1984.
    Bruce Freedman and Richard J. Potash of Tralins & Potash, P.A., North Miami, for appellant.
    John H. Pelzer of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED. Black v. Clifton, 284 So.2d 465 (Fla. 4th DCA 1973); Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla.1982).

HERSEY, GLICKSTEIN and DELL, JJ., concur.


author:
HURLEY, Judge.
      GLICKSTEIN, Judge,

text:
    William C. FRENCH, Appellant, v. Kathryn M. FRENCH, Appellee.
    Nos. 82-696, 82-1195.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Aug. 1, 1984.

      Majorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellant.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellee.
   HURLEY, Judge.

The former husband appeals from a final judgment of dissolution of marriage and a post-judgment order awarding the former wife costs and attorney fees. We affirm in part and reverse in part.

William and Kathryn French were married for twenty-one years, producing three children, aged fifteen, thirteen and eight. The husband, a stockbroker, earned a gross income of slightly over $100,000 in 1980. The wife, who was forty-two at the time final judgment entered in February, 1982, worked in the fashion industry during the first six to seven years of the marriage, but did not work outside the home after that time. She holds two college degrees and worked for six to eight months as an assistant editor for a magazine prior to the marriage.

The trial court was presented with evidence showing that the husband left the home in May, 1981 and moved onto a boat with a son, then eleven years old. The husband’s girlfriend and her two children also moved onto the boat the same day. One month later, the son reported to his mother that he had frequently observed the father and his girlfriend engaged in sexual activities on the boat. The wife then filed for dissolution.

At trial the husband admitted that he and his girlfriend had sexual relations on the boat, but he maintained that with the exception of one incident, he was unaware that the children had observed them. Mr. French further testified that he and his girlfriend took every possible precaution to prevent the children from observing their sexual activities.

Upon receipt of the evidence, the trial court granted the wife;s petition for dissolution, awarded her custody of the three minor children and decreed that the husband was not entitled to any visitation with the children. The court based its denial of visitation on the ground that the husband failed to acknowledge the impropriety of his cohabitation with his girlfriend during the marriage, and appeared insensitive to the pain he caused his children by what they perceived as “a desertion, betrayal and intentional infliction of harm to their mother and themselves.”

Additionally, the trial court awarded the wife: (1) full title and ownership in the marital home, valued at $250,000-$290,000, with an equity of $220,000-$260,000, as lump sum alimony; (2) the sum of $2,000 per month for twelve years as rehabilitative alimony; and (3) $2,000 per year as permanent alimony to be deposited by the husband “in an IRA or similar account, to be selected by the wife [which] account shall be in the name of or in trust for the wife at the option of the wife and consistent with IRS regulations,” which sum is to be increased to $4,000 in the event the wife becomes employed.

With respect to child support, the final judgment provided that the husband must pay $400 per month per child, as well as “[a]ll medical expenses” and “[a]ll educational expenses, including college up to a bachelor’s degree.” In a subsequent hearing the court further ordered the husband to pay $12,610.00 for the wife’s attorney’s fees plus $2,209.26 as costs. It also directed the husband to pay the first installment of the daughter’s $4,200 annual tuition bill to a private school in which she was enrolled after final judgment entered.

We begin by considering the trial court’s absolute ban on visitation. The court, with commendable candor, set forth its rationale in a letter to the parties’ trial counsel. It stated in pertinent part:

These children have been extremely hurt and disillusioned by what they perceive to be a desertion, betrayal and intentional infliction of harm to their mother and themselves. I do not know whether they ever will be willing and able to resume a proper relationship with their father. For their sake I hope so, but so long as Mr. French continues to appear completely insensitive to the hurt he has caused them, I do not think he will ever regain their confidence and respect.
... I do not believe Mr. French deliberately engaged in sexual acts in front of the children. I do, however, believe that he was more careless than he thinks he was, but even this is not what concerns me and, I think, the children the most. Children, no matter how smart and mature, are still children rather than adults. They react to things on very basic levels. The basic level here is that they perceive that their father does not care about the feelings of their mother and themselves. I hope Mr. French can comprehend this so that visitation and a proper relationship can someday be resumed.

It is important to note that the trial court did not base its decision prohibiting visitation on a finding of intentional or grossly negligent conduct with respect to the father’s sexual activity. Rather, the court focused on the father’s failure to acknowledge the impropriety of his extramarital affair and his seeming insensitivity to the emotional pain which it caused the wife and children. Emotional distress exists to some degree in virtually every dissolution and is not a factor which will justify a complete ban on child visitation. Indeed, visitation is essential to allay such feelings and to reinforce the parent-child relationship. Under Florida law, a parent may not be deprived of the right to visit his child merely because he has engaged in conduct which a trial court deems morally reprehensible or otherwise objectionable. A restriction against visitation may stand only if supported by competent substantial evidence showing that the alleged misconduct will have an adverse effect on the morals or welfare of the children. Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Trylko v. Trylko, 392 So.2d 1034 (Fla. 2d DCA 1981).

We are cognizant of the psychological harm which can result from children observing a parent engaged in sexual intercourse. Had the trial court found that such occurred in the case at bar due to intentional conduct or gross negligence on the part of the father, our evaluation of the visitation ban would be different. But, as indicated, the court relied on other factors which do not support a total ban. See Claughton v. Claughton, 344 So.2d 944 (Fla. 3d DCA 1977). Accordingly, the ban must be lifted. However, in light of the concern and sensitivity which the trial court brought to this ease, we are confident that the court will exercise its discretion to fashion appropriate limitations for visitation to safeguard the interests of all parties.

Next, we turn to the husband’s contention that the trial court erred by awarding the wife $2,000 per month for twelve years as rehabilitative alimony. The husband argues that the wife does not need twelve years to acquire employment skills in view of the fact that she has two college degrees and seven years of work experience in the fashion industry. We find that the award does not constitute an abuse of discretion given the substantial income of the husband, the duration of the marriage, and the wife’s limited work experience. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

The next error urged on appeal questions the propriety of the permanent periodic alimony award, pursuant to which the husband was directed to deposit $2,000 per year “in an IRA or similar account, to be selected by the wife.... and consistent with IRS regulations.” The husband argues that the IRS provision in the judgment should be stricken because the wife did not request establishment of an IRA account, citing Hernandez v. Hernandez, 444 So.2d 35 (Fla. 3d DCA 1983), and because federal law limits an IRA contribution to $2,000 per working person and makes no provision for establishing an IRA for an unemployed person. He argues that he would be subject to a cumulative penalty tax on the contribution if he were to establish an IRA account for the unemployed wife.

We are not persuaded by either of those contentions. First, the wife did seek permanent alimony and thus the award was proper even though the specific form awarded was not requested. Second, we reject the husband’s challenge to the legality of the IRA provision because the final judgment expressly states that a “similar account to be selected by the wife” may be established in lieu of an IRA account. The terms of the IRA provision are sufficiently flexible to permit substantial compliance without violation of federal law. Accordingly, we find it unnecessary to remand for modification. The trial judge obviously contemplated the creation of some type of pension fund as permanent periodic alimony. In our view, the trial court acted within its discretion by making such an award, given the length of the marriage and the sharp disparity in the income and earning capacity of the parties. See Kuvin, supra; Canakaris v. Canakaris, 382 So.2d 1197, 1201-02 (Fla.1980); cf. Tate v. Tate, 432 So.2d 601 (Fla. 4th DCA 1983); Vandergriff v. Vandergriff, 438 So.2d 452 (Fla. 1st DCA 1983).

The husband further alleges error in the award of all medical and dental expenses for the wife and children. We agree, and reverse with directions that the trial court limit the award to payment of unusual, major medical expenses. See Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Klein v. Klein, 413 So.2d 1297 (Fla. 4th DCA 1982). In addition, we strike that provision of the final judgment ordering the husband to pay college tuition for the children, because a trial court has no authority to require a parent to provide a college education for his children. Grapin v. Grapin, 450 So.2d 853 (Fla.1984); Klein, supra; Genoe v. Genoe, 373 So.2d 940 (Fla. 4th DCA 1979). We also strike the provision ordering the husband to pay one-half the cost of room and board for the children during college years because a husband has no legal obligation to pay child support beyond a child’s eighteenth birthday. See Klein, supra; French v. French, 303 So.2d 668 (Fla. 4th DCA 1974).

Next, we turn to the post-judgment order directing the husband to pay the first installment of the daughter’s $4,200 annual tuition bill. We view this order as nothing more than an interpretation of the final judgment which required the husband to pay “all educational expenses” for the children. Since the husband has failed to demonstrate that the court abused its discretion by requiring an unreasonable payment, see Fox v. Haislett, 388 So.2d 1261 (Fla. 2d DCA 1980), we find no error.

Finally, we hold that the attorney’s fee and costs award was not an abuse of discretion given the disparate financial positions of the parties. See Kuvin, supra; DiPrima v. DiPrima, 435 So.2d 876 (Fla. 5th DCA 1983); Sloman v. Sloman, 418 So.2d 1249 (Fla. 4th DCA 1982).

AFFIRMED IN PART, REVERSED IN PART.

SMITH, CHARLES E., Associate Judge, concurs.

GLICKSTEIN, J., concurs in part and dissents in part with opinion.

GLICKSTEIN, Judge,

concurring in part and dissenting in part.

While I concur with the majority opinion in almost every respect, my concern with the majority’s treatment of the issue of visitation occasions my dissent as to that part of the decision.

First, I think it inappropriate for this court to enter any determinative order on the issue of visitation in May, 1984, more than two years since the entry of Final Judgment. The children have not been frozen in time, waiting for the square wheels of justice to bump along to a conclusion in the case, although they may have been existing in an emotional vacuum for over two years because of the lengthy period of time in finalizing this matter. As of the present date, there is no evidence whatsoever before us of the present circumstances which could affect their welfare upon the issue of visitation.

Among the diverse matters this court must address, the rights of children deserve first priority. I hope in the future the attorneys in this district will move to expedite appeals involving the status and rights of a child for the reasons recited in the Model Statute for Termination of Parental Rights (National Council of Juvenile and Family Court Judges 1976), and quoted in part by Judge John R. Milligan and Ellen Loth, Permanency Placing for Children (A New Ballgame in Appellate Courts), in Appellate Court Administrative Review 37, 38-39 (1983), wherein the authors say:

A child’s time is not an adult’s time. The Model Statute for Termination of Parental Rights specifically recognizes this in Section One:
Unlike adults, who measure the passing of time by clocks and calendars, children have their own built-in time sense based on the urgency of their instinctual and emotional needs. What seems like a short wait to an adult can be an intolerable separation to a young child to whom a week can seem like a year and a month forever .... the purpose of this act is ... to acknowledge that the time perception of children differs from that of adults.

(Footnote omitted.)

Second, it is my further opinion that the appropriate alternative is to relinquish jurisdiction to the trial court with direction to appoint a trained guardian ad litem to represent these children and to report to the court with an appropriate recommendation upon the issue of visitation. Knowledgeable, caring child advocates throughout the country are making the rest of us aware of the necessity for sensitive treatment of children who are forced, involuntarily into issues of custody or visitation. While the concept of guardians ad litem are generally used in the framework of a custody issue, their appointment should be considered by a trial judge in other situations wherein a child’s rights are involved.

In 1979, the House of Delegates of the American Bar Association approved the Juvenile- Justice Standards recommended by the Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, including 2 — 3(b) which recited in part:

Independent counsel should also be provided for the juvenile who is the subject of proceedings affecting his or her status or custody.

Florida’s guardian ad litem program has been funded basically to the extent of dependency proceedings, not to intra-family custody and visitation issues. It is a sensitive program which provides training for primarily non-legal volunteers as well as responsible supervision of their activities.

Wisconsin now expressly provides for the appointment of a guardian ad litem for every child caught up in a custody, visitation or support cataclysm. The Wisconsin Supreme Court, invoking its rule making power, created section 247.045 of The Family Code (1971), which requires an attorney to be appointed as the child’s guardian ad litem in every such case. New Hampshire, by RSA 458:17a (1979), has mandated appointment of a guardian ad litem when either custody or visitation is disputed. In his article, Guardians Ad Litem: A Proposal to Better Protect the Interests of Children of Divorce, 20 New Hampshire Law Journal 35 (1978), Michael D. Casasan-to says as to the role of the guardian ad litem:

There remains the problem of deciding upon the proper role of the guardian ad litem. As the remainder of this section will make obvious, the guardian ad litem should in all cases be a lawyer. This is so because of the advocacy role that the guardian ad litem should fulfill and the knowledge of court procedure and the ability to participate in this procedure that the guardian should possess.
There are basically two different views as to the proper role of a guardian ad litem for a child in a divorce action. One view holds that the guardian’s role should be that of an expert investigator and adviser to the court. Under this view, the guardian would investigate the facts, interview interested parties and make a recommendation to the court. The other view holds that the guardian should be an advocate for the position of his or her client. Under this view, the guardian should take an active role in zealously representing the interests of his client and should be bound toward this end by the Code of Professional Responsibility; the guardian would not only thoroughly investigate the facts and consult with nonlegal experts, but would also take an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision if the outcome was adverse to the child.

Id. at 47.

Florida is taking its rightful place among the states of the union who can be relied upon for leadership and who serve as role models in the battle of “awareness” of and response to children’s needs. The judiciary, in my view, is striving to become aware, as evidenced by the recent programs of the Circuit Judges’ Conference. The Family Law Section of The Florida Bar and of the American Bar Association, together with members of the Academy of Matrimonial Lawyers are all making efforts to remedy the absence of representation of children. While some circuits have made strides in involving trained guardians ad litem in contested custody matters; organized programs are generally too few and too far between. How many of us judges have ever seen a trained guardian ad litem’s report to the court? How many of us have ever read any literature on the subject matter of guardians ad litem? Although the answer to both questions may be “few,” I suggest it can be significantly changed for the better by our giving children’s needs the attention and priority they require and deserve.

In closing, this opinion has emphasized the role of the non-lawyer representative of children’s interests in matters involving custody and visitation. The role of the lawyer in custody cases arising out of divorce or dissolution proceedings is debated in an enlightening, recently published article by Robert F. Cochran, Jr., and Paul C. Vitz, Child Protective Divorce Laws: A Response to the Effects of Parental Separation on Children, 17 Family Law Quarterly 327 (1983). This scholarly article primarily reviews surveys of devastating effects upon children following dissolution and separation from one parent. It specifically addresses the subject matter of this case; namely, visitation. As for legal representation of children in dependency matters, the same issue features an equally enlightening article by Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision Making Custody, at 287.

Judges involved in family or juvenile matters have a useful tool in the Family Law Quarterly, published by the American Bar Association Family Law Section. Its winter 1984 issue contains an encyclopedic fifty states overview of all facets of family law, as well as an extensive special section on family mediation, including an empirical study of mediation as an alternative to litigating child custody disputes.

An immigrant to these shores some years ago was heard to say of this country: “There is gold in the streets, but you must pick it up.” Concrete knowledge about the effects of marital discord on children is similarly accessible. We in the judiciary must acquire that knowledge and not shoot from the hip where children are concerned.

      . Appellate counsel for the father has indicated that at the time of oral argument one of the sons was living with the father.

      . The prime mover throughout the nation in this area is the National Council of Juvenile and Family Court Judges, whose Children in Placement Committee coined the term "Court Appointed Special Advocate” (CASA), which in Spanish means “home." A CASA, as that term is used in other states, is a trained non-legal volunteer. The term, guardian ad litem, is used in Florida and elsewhere. Whichever term is used, the volunteer’s basic task is directed to the abused or neglected child whose dependency falls within the bailiwick of the judge assigned to the juvenile division. In this state, Fla.R. Juv.P. 8.300 authorizes the appointment of a guardian ad litem. In the newly published National Court Appointed Special Advocate Association, Court Appointed Special Advocate A Guide For Your Court (1984), the editors note:
      The CASA serves as:

        investigator, who ferrets out all relevant facts through personal interviews and a review of all records, documents, and clinical data;

        advocate, who ensures that all relevant facts are before the court at hearings, through written reports and direct testimony;

        facilitator and negotiator, who ensures that the court, social service and legal counsel fulfill their obligations to the child in a timely fashion;

        monitor of all court orders, who ensures compliance by all parties and brings to the court’s attention any change in circumstances that may require modification of the court order.
      Strict adherence to this role definition will provide maximum benefit to the court and the child. Optimally this role definition can be incorporated in a state statute.
      In training CASAs, it is also essential to spell out which roles are not performed. CA-SAs are not Big Brothers or Big Sisters. CA-SAs are not guardian angels. CASAs are not attorneys speaking the child’s wishes or social workers planning for the entire family. CA-SAs are "the eyes and ears" of the court, making independent, objective recommendations regarding the child’s best interests.

        Id. at 13, 14.
      See, also, State of Florida, Guardian Ad Litem Program Volunteer Coordinator Project, Advanced Training Manual: Volume I, Protecting the Best Interests of the Child (1983). Accordingly, definite criteria exist for those who participate — not only in their qualifications but also in their duties; and Florida has been fortunate in the leadership provided the program by its initial director, Ellen Irene Hoffenberg, Esquire, and its coordinators throughout the state.

      . See, also, on the general subject of guardians ad litem: Berdon, A Child's Right to Counsel in Contested Custody Proceeding Resulting from a Termination of the Marriage, 50 Conn.B.J. ISO-67 (1976); Bersoff, Representation for Children in Custody Decisions: All that Glitters is Not Gault, 15 J.Fam.L. 27-49 (1976-1977); Devine, A Child's Right to Independent Counsel in Custody Proceedings: Providing Effective ‘Best Interests' Determination Through the Use of a Legal Advocate, 6 Seton Hall L.Rev. 303-05 (1975); Ginsburg, In the Interest of Children—A View from the Bench, 1979 B.L.J. 21-24; Kargman, A Court Appointed Child Advocate (Guardian Ad

        Litem) Reports on her Role in Contested Child Custody Cases and Looks to the Future, 3 J. of Divorce 77-90 (1979); Levin, Guardian Ad Litem in a Family Court, 34 Md.L.Rev. 341-81 (1974). Milmed, Due Process for Children: A Right to Counsel in Custody Proceedings, 4 N.Y. U.Rev.L. & Soc. Change 177-89 (1974); Mlyniec, The Child Advocate in Private Custody Disputes: A Role in Search of a Standard, 16 J.Fam.L. 1-17 (1977); Singer & Shipper, The Child’s Right to Independent Counsel in Divorce Custody Hearings, 5 L. & Psychology Rev. 50-78 (1979); Wilcox, A Child’s Due Process Right to Counsel in Divorce Custody Proceedings, 27 Hastings L.J. 917-50 (1976); Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J. 1126-90 (1978); The National Association of Counsel for Children/The Florida Association of Counsel for Children, In the Interest of Children: Quality Child Advocacy, 7-1 to 7-57 (1983) (describing the guardian ad litem’s role as investigator, protector, spokesperson, reporter and monitor); Arizona Council of Attorneys for Children, Inc., Representing Children in Domestic Relations Cases (1982); Cuyahoga County Bar Association, Manual for Guardian Ad Litem Representing Children in Custody Litigation (1982); Connecticut Bar Association, Family Law Section, Counsel for Children: Guidelines for Courts and Counsel in Civil Custody Cases (1982); Wallace, When the Child Becomes the Prize—That Child Needs a Lawyer, 9 Barrister 16 (1982).


text:
    Mario Julio LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-1500.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied July 26, 1984.
    Nathan P. Diamond of Law Offices of Penzell & Diamond, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial, after an evidentiary hearing, of appellant’s motion for post-conviction relief alleging ineffectiveness of trial counsel.

Our affirmance is substantially predicated upon our deference to the position of the trial judge, who was the same judge that presided over appellant’s trial, as the trier of fact to resolve issues of fact and credibility in considering the alleged deficiencies of counsel and their effects on the trial proceedings. We are particularly influenced by the trial court’s own observations as to the manner in which a decision was made by counsel, in consultation with the appellant, to waive instructions on lesser-included offenses. The testimony of counsel, considered together with the court’s observations, constitute a sufficient predicate for the trial court to deny the claim of ineffectiveness in this respect. Cf. Josey v. State, 301 So.2d 489 (Fla. 2d DCA 1974), wherein the court was concerned that the decision to waive “may have been a knowing, all or nothing gamble, or it may have been oversight of the existence of the necessarily lesser included offense ....” We have also considered each of the other allegations of ineffectiveness, reviewed the evidence presented, and conclude that there is an evidentiary basis for the trial court’s decision in each instance. See Knight v. State, 394 So.2d 997 (Fla.1981).

ANSTEAD, C.J., DOWNEY, J., and RODGERS, EDWARD, Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Raymond BEAUCHEMIN and Mihelle Beauchemin, his wife, and Dennis Grenier and Janet Grenier, his wife, Appellants, v. FEDERAL REALTY OF BROWARD, INC., a Florida Corporation, Appellee.
    No. 83-1537.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.

      Levi England of England & Donato, Dav-ie, for appellants.
    Michael L. Gates of Kaplan, Jaffe and Gates, P.A., Hollywood, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS and BERANEK, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

I would reverse and hold that the second broker, the appellee herein, was not entitled to a commission on the sale admittedly produced by the efforts of a first broker which took place shortly after the expiration of the first broker’.s exclusive listing agreement. Clearly the appellant sellers contemplated that a sale to the purchasers produced by the first broker would be excluded by the terms of the listing contract with the second broker, even though the sellers did not finalize such sale until after the expiration of the first broker’s listing and commencement of the term of the second broker’s listing. Indeed, it appears that the actual purchasers, with whom the sellers had already exchanged offers and were actively negotiating, were specifically contemplated by marking from the second broker’s listing any sale to purchasers produced directly “by me,” i.e., purchasers produced by the sellers themselves. There is no other explanation for the markings.


text:
    STATE of Florida, Appellant, v. Harold Wayne ROMANS, Appellee.
    No. 83-1880.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellant.
    R. John Cole, II of Steves, Busch & Cole, Sarasota, for appellee.
   PER CURIAM.

The state seeks reversal of the lower court’s order granting the defendant’s motion to dismiss based on res judicata and collateral estoppel. We reverse.

The issue below was whether the state was barred on the ground of res judicata or collateral estoppel from prosecuting the substantive offense for which the trial judge ruled there was insufficient evidence upon which to revoke probation in a separate violation of probation hearing. In all essential particulars, this case is identical to State v. Justice, 451 So.2d 1056 (Fla. 2d DCA 1984), and on the authority and reasoning of Justice, we reverse. The Justice court relied in part on Green v. State, 450 So.2d 509 (Fla. 3d DCA 1984), and certified to the Florida Supreme Court as a question of great public importance, the question certified by the Green court as:

When, in a probation proceeding, the trial judge finds the evidence is insufficient to prove the criminal offense asserted as the ground for revocation, is the state collaterally estopped from trying the defendant for the same criminal offense?

Accordingly, we reverse and certify the same question certified in Green and Justice.

Reversed.

GRIMES, A.C.J., and CAMPBELL and LEHAN, JJ., concur.


text:
    Anthony HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1610.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   ON MOTION TO MODIFY MANDATE

PER CURIAM.

On May 30, 1984, the state filed a motion to recall and modify the mandate which was issued on April 27, 1984, in this case pursuant to our opinion which was filed April 11, 1984, 448 So.2d 84. The state alleged in its motion that after the time period for filing a motion for rehearing had expired, the case of Castle v. State, 330 So.2d 10 (Fla.1976), came to the state’s attention. The state alleged that our opinion conflicts with Castle v. State.

The state asks that we recall the mandate and modify our opinion. However, we do not agree that our holding conflicts with Castle. Therefore, we deny the state’s motion to withdraw the mandate, but we hereby modify our opinion to clarify the basis for the holding.

In this case the trial court retained jurisdiction over one-half of the sentence imposed pursuant to section 947.16(3), Florida Statutes (Supp.1982), which was the statute in effect at the time defendant committed the crime. The defendant argued on appeal that the trial court should have retained jurisdiction over only one-third of the sentence pursuant to section 947.16(3), Florida Statutes (1983), which became effective seven days before the defendant was sentenced. This court agreed with defendant’s argument and remanded the case for correction of the sentence to reflect retention of jurisdiction over one-third of the sentence.

The stated basis for our holding was that, contrary to previous cases in which the permissible period for retention of jurisdiction had been increased from one-third to one-half, see, e.g., Reid v. State, 440 So.2d 651 (Fla. 2d DCA 1983); Wicker v. State, 438 So.2d 398 (Fla. 2d DCA 1983), this situation presented no problem of an illegal ex post facto application of an increased “punishment” to defendant. As the state has now pointed out, Article X, Section 9, of the Florida Constitution provides that “[rjepeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” This provision has been interpreted to mean that a defendant is not entitled to the benefit of a lesser sentence if the legislation reducing the statutory sentence is enacted after defendant commits the crime. Castle v. State, 330 So.2d at 11.

Although in our opinion we referred to the increase in retention time as a more severe punishment, we should more properly have termed it a disadvantage to defendant which cannot be applied ex post facto, see Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), rather than a punishment as that term is used in Article X, Section 9, of the Florida Constitution. We conclude, for present purposes, that retention of jurisdiction does not affect the punishment or sentence imposed on a defendant within the meaning of the foregoing constitutional provision but has an effect which “permits the trial judge to control parole review” during the term of the sentence imposed. Overton v. State, 429 So.2d 722, 723 (Fla. 1st DCA 1983).

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


author: OTT, Acting Chief Judge.

text:
    Lawrence Everett WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1159.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
   OTT, Acting Chief Judge.

This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised several points in his motion which merit discussion. He first alleges that he was not tried within one hundred eighty days of his arrest, in violation of Florida Rule of Criminal Procedure 3.191. He also alleges he was denied effective assistance of counsel because his trial counsel did not raise this issue in the trial court. Appellant admits that the speedy trial issue was not raised on direct appeal.

Violation of rule 3.191 is a violation of a state procedural rule and does not go to the fundamental fairness of a trial. See Davis v. Wainwright, 547 F.2d 261 (5th Cir.1977). Violation of the speedy trial rule can be raised on direct appeal but only if it was first raised in the trial court. Oliva v. State, 354 So.2d 1264 (Fla. 3d DCA 1978). Because this error is not fundamental, and because it could have been raised on direct appeal, it is not proper to raise it under rule 3.850.

Appellant also alleges his trial counsel was ineffective because of the failure to move for discharge upon the expiration of the one-hundred-eighty-day period following his arrest. See Fla.R.Crim.P. 3.191(d)(1). Appellant’s factual allegations facially show that he was not brought to trial within one hundred eighty days. Therefore, appellant’s allegation of ineffective assistance of counsel meets the test recently established by the United States Supreme Court in Strickland v. Washington,-U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); he has shown that counsel’s performance was deficient and that this deficient performance prejudiced appellant so as to deprive him of a fair trial.

The trial court did not conduct an eviden-tiary hearing. The order denying the motion recites that denial is “based upon the record and the affidavit filed by ... defendant’s attorney.” However, no portions of the record, nor counsel’s affidavit, are attached.

Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the ineffective assistance of counsel allegation and attach to its order those portions of the record which conclusively show appellant is not entitled to relief,- or hold an evidentiary hearing and then rule on the specified allegation. See Fla.R.Cr.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

The other points raised in appellant’s motion were correctly denied by the trial court.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    W.B.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1652.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Where a juvenile was arrested for having a misdemeanor amount of marijuana on his person, and an additional felony amount of marijuana was found in the rear of the police cruiser after the juvenile had been transported to a detention center, there was a single offense for which he could not be twice prosecuted. See Jackson v. State, 418 So.2d 456 (Fla. 4th DCA 1982); see also Blockburger ¶. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). After a delinquency adjudication for possession of the misdemeanor amount of marijuana, the constitutional proscription against double jeopardy prohibited the State from seeking an adjudication for possession of a felony amount of marijuana. See Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187, 196 (1977) (fifth amendment forbids successive prosecution and cumulative' punishment for a greater and lesser included offense).

The delinquency adjudication for the misdemeanor offense is AFFIRMED; the adjudication for the felony offense is REVERSED; and the cause is remanded for further consistent proceedings.


author: SCOTT, ROBERT C., Associate Judge.

text:
    William J. GOLDWORN and Hall and Hauser, P.A., Appellants, v. The ESTATE OF Frederick B. DAY, Appellee.
    Nos. 82-1484, 82-1485.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.

      Hall & O’Brien and Richard O’Brien and Lewis R. Cohen, Miami, for appellants.
    Arky, Freed, Stearns, Watson & Greer and R. Lawrence Bonner, Miami, for appel-lee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J. and SCOTT, ROBERT C., Associate Judge.
   SCOTT, ROBERT C., Associate Judge.

Appellant, a co-personal representative of decedent’s estate appeals two orders which denied him attorney’s fees in a probate proceeding. We affirm.

At the outset, we note that appellant had been awarded attorney’s fees of $35,000 plus $15,000 for his services as co-personal representative. Some time after the award of fees to appellant, Dora Brown, a beneficiary of decedent’s estate and appellant’s co-personal representative, brought an action, in the probate proceedings, against appellant charging him with waste and maladministration of the estate. Specifically, appellant was charged with embarking upon an imprudent and unnecessary investment scenario which resulted in substantial losses to the estate. Dora Brown sought to remove appellant as co-personal representative and to charge him with the losses.

At the trial of the issues raised, the evidence was contradictory. Ultimately, the court dismissed Dora Brown’s petition. However, the court also denied appellant’s motions for attorney’s fees. This appeal ensued.

The sole issue is whether appellant’s attorney’s fees, incurred by him in his defense of Dora Brown’s attack upon him should have been charged to the estate. Section 733.617, Florida Statutes (Supp.1976), the controlling statute, relates to compensation of personal representatives and professionals. It provides in part:

(1) Personal representatives, attorneys, accountants, and appraisers and other agents employed by the personal representative shall be entitled to reasonable compensation....

It is axiomatic that an award of attorney’s fees from estate funds presupposes the performance of services which were necessary or beneficial to the estate. Heirs of Estate of Waldon v. Rotella, 427 So.2d 261 (Fla. 5th DCA 1983) and cases cited therein.

In the instant case, the estate and its beneficiaries derived no necessary or beneficial services from the efforts of appellant’s attorneys. While appellant was not removed as co-personal representative, the trial court spoke disparagingly about the performance of his duties in that position.

Appellant argues that his retention by the court as a co-personal representative, as contemplated by the decedent, was ipso facto, a benefit to the estate. Appellant relies upon In Re Estate of Murphy, 336 So.2d 697 (Fla. 4th DCA 1976). In that opinion, the court refused to override the expressed direction of the decedent and acknowledged the decedent’s right to select a person to manage his estate. However, the court, in the cited case, did not discuss the award of attorney’s fees for services incurred in pulling appellant’s personal chestnuts out of a fire.

The order of the court below should not be disturbed absent a clear abuse of discretion. In Re Estate of Simon, 402 So.2d 26 (Fla. 3d DCA 1981).

Appellant’s claim for attorney’s fees based upon section 57.105, Florida Statutes (Supp.1978) is without merit. The judgment below is affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    Roberto TOLEDO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2019.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Kurt Marmar, Coral Gables, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.

      Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The defendant was convicted of two counts of aggravated assault with a firearm. He contends on appeal that the trial court erroneously precluded him from introducing evidence which, he says, would have supported his claim that he acted in self-defense when he pointed a shotgun at two individuals who had come to his tow-truck company premises to recover an impounded vehicle and, after an argument concerning the amount due to release the vehicle, menacingly shoved the defendant backwards. We affirm.

The evidence which the trial court rejected was purported expert testimony that people in the business of towing away other people’s cars are frequently threatened and assaulted by angry car owners who take particular offense at being temporarily dispossessed of their automobiles and having to pay to reclaim them. Assuming, arguendo, that testimony that a defendant was subjected to or aware of prior assaultive behavior by disgruntled car owners is relevant as tending to prove the material fact that he reasonably believed that his show of force was necessary to defend himself against the imminent use of force, see § 776.012, Fla.Stat. (1981),, the proffer here did not include, as it was required to do, that this defendant knew of the assaults which had befallen his colleagues in the towing business. In the absence of the proffered testimony being tied to the defendant’s perception of the circumstances confronting him, the proffered testimony was not relevant to the defendant’s self-defense claim. See Price v. Gray’s Guard Services, Inc., 298 So.2d 461, 464 (Fla. 1st DCA 1974) (“The conduct of a person acting in self defense is measured by an objective standard, but the standard must be applied to the facts and circumstances as they appeared at the time of the altercation to the one acting in self defense.” (emphasis supplied)); People v. Moody, 62 Cal.App.2d 18, 143 P.2d 978, 980 (1943) (a person in the exercise of his right of self-defense may use “only such force as a reasonable person, situated as he was and knowing what he knew, would have used under like circumstances.” (emphasis supplied)); State v. Scroggins, 91 Idaho 847, 433 P.2d 117, 119 (1967) (the kind and degree of force which may lawfully be used in self-defense is “limited by what a reasonable person in the same situation as such person, seeing what he sees and knowing what he knows, then would believe to be necessary.” (emphasis supplied)); State v. Dunning, 8 Wash.App. 340, 506 P.2d 321, 323 (1973) (a person “may use that degree of force necessary to protect himself which a reasonably prudent man would have used under the conditions appearing to him at that time.” (emphasis in original)).

Affirmed.

      . "All relevant evidence is admissible, except as provided by law.” § 90.402, Fla.Stat. (1983). The State suggests that the admissibility of evidence of prior assaults is limited to prior assaults committed by the very same persons who are alleged to be the victims of the offense for which the defendant is being tried. Of course, such testimony, as well as testimony concerning a victim’s known reputation for violent conduct and specific prior acts of violence committed by a victim and known to the defendant, is admissible, see Garner v. State, 28 Fla. 113, 9 So. 835 (1891); Sanchez v. State, 445 So.2d 1 (Fla. 3d DCA 1984); Hager v. State, 439 So.2d 996 (Fla. 4th DCA 1983). However, this rule of admissibility is merely an exception to the rule that evidence of the character of the victim is ordinarily irrelevant, see § 90.404, Fla.Stat. (1983), and does not purport to define the outer limits of relevancy where a self-defense claim is made.

      . Section 776.012, Florida Statutes (1981), provides:
      “Use of force in defense of person. — A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another to prevent the imminent commission of a forcible felony.”

      . The State suggests that any error of excluding the defense evidence was harmless, since the defendant used deadly force and there was no evidence to suggest that he was being threatened with imminent death, great bodily harm, or the imminent commission of a forcible felony. But display of a deadly weapon without more is not deadly force. See § 776.06, Fla.Stat. (1981).

      . While the defendant’s proffer is unclear, it sufficiently appears that the testimony of the excluded witness was to relate to persons similarly situated to the defendant. Thus, defense counsel argued in support of the proffer:
      "The statute as to reasonable use of force and the standard jury instruction all deal with an individual who is similarly situated, within [sic] a reasonable individual who would have acted the same.”
      This argument indicates that the purpose of the testimony was merely to show that the witness would have done what the defendant did under the circumstances. Indeed, the trial court stated it would permit the testimony if defense counsel could show "a pattern in this case of exactly what happened on that evening to this person" under similar circumstances, but would not permit testimony of others who themselves have received threats.

      . Although, as we have acknowledged, prior incidents of assaultive behavior in like circumstances known to the defendant would likely have been admissible, no such testimony was proffered through the defendant. The defendant, testifying on his own behalf, stated that he had a shotgun in the car, "[b]ecause [of] other problems that I had before. A couple of other drivers got beat up pretty bad. My brother got a gun pulled out on him.” Although the prosecutor’s “objection” to the answer was sustained, no motion to strike the answer was made, and the testimony remained for the jury to consider. Defense counsel did not further pursue this area of inquiry by proffer or otherwise.


text:
    Jose SORLI, Appellant, v. I.M. SKAUGEN MANAGEMENT CO., A/S Royal Caribbean Cruise Lines, A/S Poseidon Maritime Services, Inc., Poseidon Services, Ltd., Fairweather International Corporation and Carnival Cruise Lines, Inc., Appellees.
    No. 83-2367.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Horton, Perse & Ginsberg and Arnold Ginsberg, Charles R. Lipcon, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Allan R. Kelley, Holland & Knight and Michael T. Moore and William F. Hamilton, Miami, Fla., for appel-lees.
    Before SCHWARTZ, C.J., HUBBART, J., and SHARP, WINIFRED J., Associate Judge.
   PER CURIAM.

The order under review dismissing the amended complaint herein is reversed and the cause is remanded to the trial court for further proceedings upon a holding that the affirmative defense of laches does not appear on the face of the complaint as urged by the defendants below. Although arguably an inexcusable delay in bringing the subject action is alleged in the amended complaint, see Byrd v. M/V Yozgat, 420 F.2d 954, 955 (5th Cir.1969); Gildens v. Isbrandtsen Co., 355 F.2d 125, 128 (4th Cir.1966); Morales v. More-McCormack Lines, Inc., 208 F.2d 218, 221 (5th Cir. 1953); but cf. Larios v. Victory Carriers, Inc., 316 F.2d 63, 67 (2d Cir. 1963) (absence from country presented relatively strong excuse for delay), the element of prejudice to the defendants (an essential element of laches), see Gardner v. Panama Railroad, 342 U.S. 29, 31, 72 S.Ct. 12, 14, 96 L.Ed. 31, 36 (1951); Akers v. State Marine Lines, Inc., 344 F.2d 217, 220-21 (5th Cir.1965); VanMeter v. Kelsey, 91 So.2d 327, 331 (Fla.1956); Peacock v. Firman, 177 So.2d 560, 562 (Fla. 3d DCA), cert. denied, 183 So.2d 215 (Fla.1965), is expressly negated by allegations in the amended complaint that the defendant suffered no prejudice as a result of the aforesaid delay (Amended Complaint, para. 32). This being so, it was inappropriate at this point of the proceedings to dismiss the amended complaint as being barred by the affirmative defense of laches. See Sanchez v. Mercy Hospital, 386 So.2d 42, 43 (Fla. 3d DCA 1980); Paulos v. Vordermeier, 327 So.2d 245, 246 (Fla. 4th DCA 1976); Stern v. First National Bank of South Miami, 275 So.2d 58, 60-61 (Fla. 3d DCA 1973); Fla.R.Civ.P. 1.110(d).

Reversed and remanded.


author: SCHWARTZ, Chief Judge.

text:
    E.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2678.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.

      Before SCHWARTZ, C.J., HUBBART, J., and WINIFRED J. SHARP, Associate Judge.
   SCHWARTZ, Chief Judge.

Once again, we consider and are forced to reverse an adjudication that the accused was guilty of aiding and abetting the substantive offense which was the sole charge asserted and as to which the evidence is simply insufficient to establish the necessary elements of that claim. E.g., J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980).

The respondent, a seventeen-year-old female, was charged with robbery and adjudicated delinquent on that ground. Since she had no part in the actual offense — the mugging of a patron as he emerged from a bar in Miami — which was actively committed by two young men, it was contended only that she had aided and abetted their crime. E.g., D.M. v. State, 394 So.2d 520 (Fla. 3d DCA 1981); P.R. v. State, 389 So.2d 1078 (Fla. 3d DCA 1980). In this regard, although E.H. drove one of the robbers to the scene of the crime and picked them both up afterwards, these naked facts are plainly circumstantially insufficient, even absent her uncontradicted denial from the witness stand that she had any previous knowledge of the crime, to establish the guilty intent which is indis-pensible to such a charge. J.H. v. State, supra; Davis v. State, 436 So.2d 196 (Fla. 4th DCA 1983), rev. denied, 444 So.2d 418 (Fla.1984), and eases cited; Perez v. State, 390 So.2d 85 (Fla. 3d DCA 1980); Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968). The state argues, however, that this element is supplied by proof that, after the actual offenders entered the car, it was deliberately driven toward both the victim and a security guard who had come to his assistance. But this inference was, in turn, entirely dissipated by E.H.’s testimony, again unchallenged in any way, that this had occurred only because one of the offenders had grabbed the steering wheel from her hands and steered the vehicle towards the men. Since this version of the incident was neither unreasonable nor contradicted by direct evidence, it must be accepted, McArthur v. State, 351 So.2d 972 (Fla.1977); J.A.L. v. State, 409 So.2d 70 (Fla. 3d DCA 1982), leaving nothing to support the adjudication. It is therefore

Reversed.

      . It may also be another of the almost equally large number of cases in which, as we have already pointed out with no discernible effect in A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982), the prosecutorial difficulty could have been, but unaccountably was not obviated by the simple expedient of charging the defendant or respondent as an accessory after, rather than as a principal of the crime itself.

      . As in J.H., this was corroborated by the fact that when the three were apprehended soon after the robbery, E.H. did not attempt to escape and said she had not done so because she had done nothing wrong.

      . Although the state's brief claimed that there was evidence that the incident had taken place when E.H. was alone in the vehicle, it commendably conceded at oral argument that this was not the case.

      . Indeed, her statement was buttressed by the fact that, after missing the victim and the guard, the car crashed into the wall of the cocktail lounge.


text:
    John RICHARD, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1550.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neiman, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Lane v. State, 430 So.2d 989 (Fla. 3d DCA 1983); Sec. 924.33, Fla.Stat. (1981).


text:
    William QUINN, Appellant, v. METROPOLITAN DADE COUNTY AVIATION DEPARTMENT, Appellee.
    No. 84-163.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Brumer, Cohen, Logan & Kandell and Karen A. Curran, Miami, for appellant.
    Richard R. McCormack, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558 (Fla.3d DCA 1983).


text:
    Wilbur BOATWRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 82-2033.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Defendant appeals his convictions for grand theft and aggravated assault for which he received two concurrent seven and one-half year sentences. We affirm in part and reverse in part.

During closing argument, the prosecutor stated:

[Ljadies and gentlemen of the jury, as difficult as it is, I’m asking you to stand up now, I’m asking you to do something about crime, I’m asking you to do something about [this] type of conduct, -I’m asking you to send a message to folks that we’re not going to put up with this.

Defense counsel voiced an objection which the trial court overruled. Thereupon, the prosecutor repeated his theme, “I’m asking you to do your job today, here in this courtroom and send these folks a message we’re not gonna put up with this kind of stuff.” During the rebuttal phase of final argument, the prosecutor again stated, “This is our country, this is our nation, it’s time to send ’em — send criminals a message we’re not gonna tolerate it any more -” Defense counsel renewed his objection and, this time, moved for a mistrial. The trial court denied the motion, stating in the presence of the jury, “[I]n my opinion the argument is not an improper argument.”

We respectfully disagree with the able trial judge. The “send ’em a message” argument may have some cachet in the political arena, but it is grossly improper in a court of law. Hines v. State, 425 So.2d 589 (Fla. 3d DCA 1982), petition for rev. denied, 430 So.2d 452 (Fla.1983); Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973). See generally United States v. Modica, 663 F.2d 1173 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). It diverts the jury’s attention from the task at hand and worse, prompts the jury to consider matters extraneous to the evidence. This type of argument is calculated to inflame the passions or prejudices of the jury and, thus, is prohibited by ABA Standards for Criminal Justice, 3-5.8(c).

Under our law, the prosecutor has a duty to be fair, honorable and just. As put by Justice, Sutherland, the prosecuting attorney “may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). We discussed the prosecutor’s role in Martin v. State, 411 So.2d 987, 990 (Fla. 4th DCA 1982), and said that

it is the duty of a prosecutor to seek justice, not merely to convict. We recognize that the tensions of the adversary process and the heat of trial can test an attorney to the limit. Nonetheless, it is imperative that prosecuting attorneys be ever mindful of their awesome power and concomitant responsibility. The tactics and trial strategy of the prosecutor must reflect a scrupulous adherence to the highest standards of professional conduct.

See also Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982).

The prosecutor’s argument in the case at bar constitutes a departure from acceptable practice. That it was stated three times and, on the final repetition, received the trial court’s imprimatur, only underscores the egregiousness of the error. Our responsibility is to evaluate the impact of the error. The standard we must apply was articulated in State v. Murray, 443 So.2d 955 (Fla.1984). There, the court held that

prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless. The correct standard of appellate review is whether “the error committed was so prejudicial as to vitiate the entire trial.” Cobb [v. State], 376 So.2d [230] at 232. The appropriate test for whether the error is prejudicial is the “harmless error” rule set forth in Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967), and its progeny.

Id. at 956.

Applying the harmless error rule to this case, we affirm the defendant’s conviction and sentence for grand theft. The evidence of guilt is so overwhelming that we are satisfied that the error is harmless beyond a reasonable doubt. On the other hand, we are unable to make the same finding with respect to the defendant’s conviction and sentence for aggravated assault. The aggravated assault allegedly took place subsequent to, and at some distance from, the grand theft. Although both crimes were properly charged in the same information, the evidence as to each is sufficiently distinct to permit separate evaluation. A review of the evidence relating to the aggravated assault simply does not allow us to say that the prosecutorial error was harmless beyond a reasonable doubt.

A second prosecutorial tactic also demands comment. During cross-examination of a key defense witness, the prosecutor skillfully established the differences between the witness’s testimony and that of earlier state witnesses. Up to this point, the cross-examination was perfectly legitimate. Then, over defense objection, the prosecutor asked the witness whether each of the earlier witnesses had been lying. This effort to isolate and thereby discredit the witness is improper for a number of reasons. It is elemental in our system of jurisprudence that the jury is the sole arbiter of the credibility of witnesses. Barnes v. State, 93 So.2d 863 (Fla.1957). Thus, it is an invasion of the jury's exclusive province for one witness to offer his personal view on the credibility of a fellow witness. Bowles v. State, 381 So.2d 326 (Fla. 5th DCA 1980). Moreover, the fact that two witnesses disagree does not necessarily establish that one is lying. Lying is the making of a false statement with intent to deceive. Absent some evidence showing that the witness is privy to the thought processes of the other, the first witness is not competent to pass on the other’s state of mind. Therefore, we hold that this part of the prosecutor’s cross-examination was improper; the trial court erred in failing to sustain the defendant’s objection.

Accordingly, the defendant’s conviction and sentence for aggravated assault are reversed and the cause is remanded for new trial.

AFFIRMED IN PART, REVERSED IN PART and REMANDED for NEW TRIAL.

SMITH, CHARLES E., Associate Judge, concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specialty-

The purposes of this concurring opinion are (1) to pass along to the trial judges, prosecutors and defense counsel who practice in this district as well as The Florida Bar some suggestions which have come to mind as a result of the decision of the Supreme Court of Florida in State v. Murray, 443 So.2d 955 (Fla.1984) and (2) to express some observations as the author of Murray v. State, 425 So.2d 157 (Fla. 4th DCA 1983), which was subsequently quashed in State v. Murray.

The suggestions are these:

1. Prosecutors should now, more than ever, realize that when they violate an individual’s constitutional rights, they not only may be admonished by the trial court but should expect to be subject to disciplinary proceedings by The Florida Bar. I have to believe that this is a drastic change in historical direction in Florida that now imposes upon the trial judge, defense counsel and the Bar an equal responsibility. If the trial judges do nothing, then Murray will only be a rhetorical exercise at the expense of defendants’ constitutional rights. I believe it was the intent of the Supreme Court that the foregoing responsibility be met because our judicial system is based upon “accountability.”

2. Trial judges must shoulder the responsibility of affirmative action in dealing with misconduct by one of two methods, both of which are found in the Integration Rule of The Florida Bar 11.14, Disciplinary Proceedings in Circuit Courts, 35 F.S.A. 137-138. The trial court, or this court on review of the record, may direct the state attorney to move for disciplining the prosecutor. That procedure plainly should now make the state attorney run a very tight ship among his assistants because common sense would dictate to all of those involved in prosecution that the sword of Damocles is properly hanging right above them. The second alternative method is one authored by this writer while a member of the Board of Governors of The Florida Bar which the Board and Supreme Court adopted; namely Rule 11.14(1); which was intended to spell out for the judiciary its responsibility to call for an investigation by the Bar of the alleged misconduct without the judge becoming the actual accuser. Staff counsel of The Florida Bar would then put the disciplinary investigative procedures into motion.

State v. Murray was predicated upon United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), which had not been decided when Murray v. State was decided (which fact I shall discuss hereinafter). In Hasting, the United States Supreme Court concluded that the Court of Appeals had erred because it reversed the conviction as an expression of the reviewing court’s supervisory powers without regard for the “harmless error” rule. We did the same thing in Murray v. State, which the Supreme Court of Florida correctly recognized. The difference in the federal judicial system and the system in this state with respect to the attention heretofore given prosecutorial misconduct apparently has been substantial. For example, in State v. Jones, 204 So.2d 515 (Fla.1967), a typical case perhaps, the Supreme Court of Florida reviewed the comments of this writer on closing argument in the prosecution of a murder case, found them to be proper, and reversed the split decision of this court, in Jones v. State, 197 So.2d 308 (Fla. 4th DCA 1967), which had granted a new trial. Jones is typical of pre-Murray decisions of this state’s highest court when determining whether prose-cutorial misconduct during closing argument constituted constitutional error; harmless error was not discussed. The United States Supreme Court’s opinion in Hasting, however, rests on both the “harmless error” rule and the availability of narrower means for dealing with prosecutorial misconduct. The Court said:

Here, for example, the court could have dealt with the offending argument by directing the District Court to order the prosecutor to show cause why he should not be disciplined, see, e.g., SD Ill Rule 33, or by asking the Department of Justice to initiate a disciplinary proceeding against him, see, e.g., 28 CFR 0.39 et seq. The Government informs us that in the last three years, the Department of Justice’s Office of Professional Responsibility has investigated 28 complaints of unethical conduct and that one assistant United States attorney resigned in the face of an investigation that he made improper arguments to a grand jury. Brief for United States 21, n 16. The Court also could have publicly chastised the prosecutor by identifying him in its opinion. See also United States v. Modica, 663 F2d 1173, 1183-1186 (CA2 1981).

461 U.S. at-n. 5, 103 S.Ct. at 1979 n. 5, 76 L.Ed.2d at 104 n. 5. This writer recalls no case of prosecutorial misconduct coming before the Board of Governors of The Florida Bar in the period of 1978 through 1983; and the record in Murray was devoid of any statistics of the “available” alternative for dealing with prosecutorial misconduct.

3. Defense counsel may have the toughest burden of all. Heretofore, they have objected to these constitutional violations because the errors have resulted in reversals of their client’s convictions regardless of “harmless error.” Now they have the responsibility of dealing with the prospect that their client’s case may be hopeless; and that an objection to prosecutorial misconduct may be a useless gesture. On top of the foregoing is the realization that the only purpose of an objection may be to initiate a request from the Bench for an investigation of misconduct by the Bar or an actual accusation by the Bench. If defense counsel and the prosecutor go at each other’s throat in the courtroom but are personal friends in their off-hours, this shouldering of responsibility is going to be tough but essential.

4. The Florida Bar must be expected to punish these abuses vigorously, particularly now that all prosecutors are on notice of Murray.

As for my observations about the Supreme Court’s decision in Murray, there are four which I wish to express:

1. It seems to me that the “harmless error” principle is a thread that now must visibly permeate every aspect of criminal prosecution. Very little is said about the existing harmless error statute, section 924.33, Florida Statutes (1983), in our opinions, although the Supreme Court of Florida, in Jones v. State, 332 So.2d 615 (Fla.1976), pointed out the statute in another setting and said:

A careful review of the record convinces us that the evidence, though circumstantial, was so clear and convincing as to leave no reasonable doubt but that Appellant was guilty of the crimes for which the jury convicted him. Where the evidence of guilt is overwhelming, even a constitutional error may be rendered harmless.

In United States v. Hasting, the court said in discussing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967):

After examining the harmless error rules of the 50 states along with the federal analog, 28 USC § 2111 [28 USCS § 2111], the Chapman Court stated:
“AH of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring automatic reversal of the conviction.” 386 US, at 22, 17 L.Ed.2d 705, 87 S.Ct. 824, 24 ALR3d 1065 (Emphasis added.)
In holding that the harmless error rule governs even constitutional violations under some circumstances, the Court recognized that, given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. Brown v United States, 411 US 223, 231-232, 36 LEd2d 208, 93 SCt 1565 (1973), citing Bruton v United States, 391 US 123, 135, 20 LEd2d 476, 88 SCt 1620 (1968); cf. Engle v Isaac, 456 US 107, 133, 134, 71 LEd2d 783, 102 SCt 1558, 1574 (1982). Chapman reflected the concern, later noted by Chief Justice Roger Traynor, that when courts fashion rules whose violations mandate automatic reversals, they “retreat[] from their responsibilities, becoming instead ‘impregnable citadels of technicality.’ ” R. Traynor, The Riddle of Harmless Error 14 (1970) (quoting Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 ABAJ 217, 222 (1925)).
Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations, see, e.g., Brown, supra, 411 US, at 230-232, 36 LEd2d 208, 93 SCt 1565; Harrington v California, 395 US 250, 23 LEd2d 284, 89 SCt 1726 (1969); Milton v Wainwright, 407 US 371, 33 LEd2d 1, 92 SCt 2174 (1972). The goal, as Chief Justice Traynor of the Supreme Court of California has noted, is “to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error.” Traynor, supra, at 81.

461 U.S. at-, 103 S.Ct. at 1980-81, 76 L.Ed.2d 105-06.

2. It seems worthwhile for trial and reviewing judges to keep in mind the following language from Chapman in their future handling of constitutional violations by prosecutors at trial:

Thus, the state prosecutor’s argument and the trial judge’s instruction to the jury continuously and repeatedly impressed the jury that from the failure of petitioners to testify, to all intents and purposes, the inferences from the facts in evidence had to be drawn in favor of the State — in short, that by their silence petitioners had served as irrefutable witnesses against themselves. And though the case in which this occurred presented a reasonably strong “circumstantial web of evidence” against petitioners, [People v. Teale] 63 Cal.2d [178], at 197, 45 Cal. Rptr. [729], at 740, 404 P.2d [209], at 220 [1965], it was also a case in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor’s comments and the trial judge’s instruction did not contribute to petitioners’ convictions. Such a machine-gun repetition of a denial of constitutional rights, designed and calculated to make petitioners’ version of the evidence worthless, can no more be considered harmless than the introduction against a defendant of a coerced confession. See, e.g., Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844 [2 L.Ed.2d 975 (1958)]. Petitioners are entitled to a trial free from the pressure of unconstitutional inferences.

386 U.S. at 25-26, 87 S.Ct. at 829, 17 L.Ed.2d at 711.

3. I earlier mentioned the fact that Hasting had not been decided when this court decided Murray v. State. That fact was not mentioned in the opinion of the Supreme Court, undoubtedly by oversight. I mention this fact because we undertake always to expressly note in our opinions that the trial judge did not have the benefit of a governing decision by an appellate court after the trial court’s action which would have materially altered that action. As in the case of the Supreme Court, if we fail to mention the chronology, it is simply an oversight.

4. Creditable and thus credible trial and intermediate appellate court judges would do well, when reversed, to consider, on balance, a saying West Virginians have been heard to express; namely, “Some days you get the bear; and some days the bear gets you.” A good-natured rapport up and down the line is also common sense tonic. Recently, this writer shared a conference table with two judges from an intermediate court and supreme court in the same state; and the former affably introduced the latter as “the one who gets to guess last!”

         Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

       The Court acknowledged that certain errors may involve "rights so basic to a fair trial that their infraction can never be treated as harmless error.” 386 US, at 23, 17 LEd2d 705, 87 SCt 824 [827], 24 ALR3d 1065, citing Payne v. Arkansas, 356 US 560, 2 LEd2d 975, 78 SCt 844 (1958) (coerced confession); Gideon v Wainwright, 372 US 335, 9 LEd2d 799, 83 SCt 792, 23 Ohio Ops 2d 258, 93 ALR2d 733 (1963) (right to counsel); Tumey v Ohio, 273 US 510, 71 LEd 749, 47 SCt 437, 5 Ohio L Abs 159, 5 Ohio L Abs 185 (1927) (impartial judge).