author: LETTS, Judge.

text:
    Karen A. MISCHLER, Appellant, v. STATE of Florida, Appellee.
    No. 84-151.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1984.
    Frank B. Kessler of Zwickel, Gross & Kessler, Lake Worth, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

A bookkeeper who stole cash from her roofing contractor employer appeals her aggravated sentence, the trial judge having departed from the guidelines. We reverse.

The trial court justified the departure because of its belief that white collar crime per se “deserves a harsher sanction.” Also expressed was its distress at the defendant’s “lack of remorse.” Another given reason was that the theft involved sizable funds from a non-wealthy victim. The final explanation was the existence of a fiduciary relationship between the bookkeeper and her employer. We find all of these pronouncements unacceptable under the facts of this case.

“White collar crime” is susceptible to several interpretations. It obviously does not encompass all crime committed by one who occupies white collar status, otherwise rape by a bank president would qualify. Nor does it cover everyone who earns a living with brains rather than brawn. White collar crime is a crime involving theft, fraud or violation of trust made possible because of the relationship inherent in the form of the employment. White collar and/or social status go hand in hand so that the two are virtually indistinguishable. The guidelines unequivocally state that no court should aggravate a defendant because of his or her social or economic status. Ergo, the trial judge here erred in aggravating the sentence because of this factor.

It is equally clear and convincing that to aggravate a sentence because the defendant shows “no remorse” is only acceptable if repugnant, odious and accompanied by a confession, either before or after the verdict. To cruelly torture a victim and admit pleasure at having done so is altogether different from professing innocence to the bitter end. How can one be expected to show remorse concurrently with the maintenance of innocence? . Nor does a jury guilty verdict automatically extinguish the right to continued proclamation of blamelessness. Moreover, even if it did, defendants at sentencing could avoid aggravation by simply declaring their innocence and gratuitously expressing sorrow for the victim. Finally our supreme court has specifically ruled out lack of remorse as an aggravating factor in death penalty cases. Pope v. State, 441 So.2d 1073, 1078 (Fla.1983). We know that capital crimes remain outside the guidelines but believe Justice Er-lich expressed our view of lack of remorse in Pope more poetically than we can. Accordingly, we deem it error to depart from the guidelines for failure to show remorse in the face of unflagging protestations of innocence.

Were the above the only two reasons for guideline departure in this case, our task would be easy. However, the experienced and able trial jurist had more to say. Specifically, he, in part, aggravated the sentence because the theft was of a large sum of money vis-a-vis the wealth of the victim whose small business was nearly bankrupted as a result. From this pronouncement, it is not unfair to conclude that the trial judge considered the social and economic status of the victim. However beguiling such a Robin Hood perspective appears at first blush, the guidelines speak only to the social and economic status of the defendant. In this case, the defendant was a bookkeeper. Whether she purloined money from a rich or poor employer should make no difference under the facts presented. However, we confess to experiencing difficulty before we concluded that the trial court abused its discretion on this particular issue and there remains the question of how we would react to a more harrowing tale. For example, imagine a thief who achieves the total child-like trust of a senile, lonely, friendless old widow then steals all her life savings, worldly goods and fond momentos. In such a setting, a white collar crime, as we have already defined it, would be committed, but the enormity of the emotional trauma to the victim coupled with a repugnant, odious fraud upon the helpless, might well excuse aggravation without an abuse of discretion.

Our final consideration is not unrelated to either the first or third reason relied on by the trial court. We refer to the articulated belief that a bookkeeper’s relationship with her employer “involves [a] special trust and confidence ... different from theft from a stranger or from an unoccupied building.” The truth of that is unarguable. The question is whether it clearly and convincingly supports a departure from the guidelines.

A judge who takes a bribe for a favorable ruling, or a public official who accepts illegal payoffs for his or her vote, are examples of white collar criminals who defile the very reason for their being. True, they enjoy elevated social status, which the guidelines decree should not be used against them, but much more than social status is involved when those whom we appoint or elect to chart the course of the Republic, desecrate their oaths of office or profession. Such repugnant and odious behavior is a prostitution of that which they swore to protect and is clearly a convincing reason why a trial judge may depart the guidelines.

On a more modest plane, however, we have before us the case of a bookkeeper who has stolen between $14,000 and $19,-000, depending on which version is accurate. Admittedly, the principle is the same. As a bookkeeper, she has betrayed her trust to keep an honest accounting. Yet, somehow her crime does not excite repugnance or odium and we therefore, confess that our conclusion as to what supports departure from the guidelines may well depend on degree rather than principle. Nonetheless we make no apology. After all, what constitutes abuse of discretion is little else than an overreaching of such magnitude or degree that it demands reversal in the eyes of the appellate beholders.

The trouble with the sentencing guidelines is that they themselves need guidelines. By very definition, guidelines are not mandatory and in Florida they specifically disavow any intention to “usurp judicial discretion” and provide that the trial court can depart from them for “clear and convincing” reasons. However, we note a paradox in the former guidelines (Florida Rule of Criminal Procedure 3.701(d)(ll)) which contained the phrase: “Reasons for deviating from the guidelines shall not include factors relating to ... instant offense.” What did that mean? There is no doubt it must have meant something because the Supreme Court removed the words “instant offense” and substituted “factors relating to prior arrests without conviction” in the latest amendment adopted May 8th, 1984. See 451 So.2d 824 (Fla.1984). In a well worded special concurrence, Judge Ervin of the First District suggests that this phrase, and others, precluded the trial judge from taking other factors into account (see Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984)). In truth, the trial court and the district courts, as we do here, have taken other factors in the “instant” (now “primary”) offense into account in nearly every reported case, almost all of which arose while the former guidelines were in vogue. Thus, if Judge Ervin be correct, we have built a mountain of incorrect law. It is to be hoped the Supreme Court will dispel our apprehensions. Meanwhile, we take comfort from the majority view in Manning, supra, and Florida Rule of Criminal Procedure 3.701(b)(3) which reads:

The penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense, (emphasis supplied)

The definition of “clear and convincing reasons” is not given to us in the guidelines and no Florida court has yet attempted to define them. In Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983), Judge Dell struggled with the definition of “clear and convincing” evidence concluding that:

Our review of the foregoing cases convinces us that a workable definition of clear and convincing evidence must contain both qualitative and quantitative standards. We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

We like his definition as it pertains to evidence, but it does not appear readily adaptable to reasons for departing guidelines. Clear and convincing reasons for departure have been held in Florida to include violation of probation repeated criminal convictions, crime “sprees” or “binges,” “careers” of crime, extraordinary mental or physical distress inflicted on the victim, and extreme risk to citizens and law enforcement officers. We ask ourselves: What do all these reasons have in common? The answer appears to be an excess in crime which either results in repetitive convictions, successive probation violations which decry the likelihood of rehabilitation or unusual physical or psychological trauma to the victim. To that, we now add crimes committed in a repugnant and odious manner.

Before us, we have an insignificant bookkeeper who has stolen cash, yet proclaims her innocence. There is nothing in the record to indicate prior convictions and her crime, though lamentable, is so common that it no longer rises to the level of either repugnance or odiousness. True, the victim suffered a major economic loss, but the record does not reveal him to have suffered severe physical or psychological trauma. Were we to uphold a departure from the guidelines in this case, it would serve as authority to do the same in most instances of embezzlement, a result obviously not intended when the guidelines were conceived.

We recognize the implementation of sentencing guidelines is not an exact science. We also recognize that a trial judge retains discretion to depart from them for clear and convincing reasons. Therefore, deeming the matter to be of great public importance, we certify this entire case to the Supreme Court. More specifically, we ask the following question:

DOES THE THEFT BY A BOOKKEEPER OF A MAJOR PORTION OF HER EMPLOYER’S ASSETS CONSTITUTE A CLEAR AND CONVINCING REASON TO DEPART FROM THE GUIDELINES AND AGGRAVATE A SENTENCE?

REVERSED AND REMANDED. FOR RESENTENCING WITHIN THE GUIDELINES.

DOWNEY and WALDEN, JJ., concur.

      . See Black’s Law Dictionary (5th ed. 1979).

      . The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984), Rule 3.701(b)(1).

      .It is true that here the defendant’s statement, to the effect that the victim had money and people with money rule the world, does weaken her protestations of innocence. Nevertheless she staunchly continued to maintain her guilt-lessness.

      . For an excellent analysis, see Spitzmiller, An Examination of Issues in the Florida Sentencing Guidelines, 8 Nova Law Journal 687 (1984).

      . Rule 3.701(b)(6).

      . Notwithstanding, Robert Wesley, former Director of the Sentencing Guidelines Commission, indicates in his Outline of the Guidelines that Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983) did provide a predicate for the clear and convincing reason standard.

      . Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984); Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984); Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).

      . Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984). Contra Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984).

      . Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984).

      . Higgs v. State, 455 So,2d 451 (Fla. 5th DCA 1984); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984); Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984).

      . Williams v. State, 454 So.2d 790 (Fla. 5th DCA 1984); Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984); Williams v. State, 454 So.2d 751 (Fla. 1st DCA 1984).

      . Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984).

      . The lone exception appears in the case of Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984), where “extreme risk” to third parties is included.

      . We have examined most of the Florida decisions so far on the subject of sentencing guidelines. For the convenience of the bench and bar we list them below by subject matter:

        Excessive use of force a good reason to depart guidelines

        Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984);

        Harrington v. State, 455 So.2d 1317 (Fla. 2d DCA 1984).

        Extreme risk to physical safety of both citizens and law enforcement officers caused by the defendants during the perpetration and apprehension for this offense.

        Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984).

        Victim ⅛ injuries both physical and psychological may permit departure

        Williams v. State, 454 So.2d 790 (Fla. 5th DCA 1984);

        Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984);

        Williams v. State, 454 So.2d 751 (Fla. 1st DCA 1984);

        Toney v. State, 456 So.2d 559 (Fla. 2d DCA 1984).

        Defendant on a crime spree can be aggravated

        Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984).

        Non-rehabilitative career criminals warrant departure

        Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984);

        Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984);

        Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984);

        Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984);

        Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984);

        Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984);

        Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984);

        Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984);

        Fleming v. State, 456 So.2d 1300 (Fla. 2d DCA 1984).

        Can depart from guidelines even though prior record has already been factored in on score sheet

        Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984);

        Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984);

        Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984);

        Fleming v. State, 456 So.2d 1300 (Fla. 2d DCA 1984).

        Past criminal conduct not considered on score sheet can support departure

        Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984);

        Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984);

        Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984);

        Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984);
      Contra Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984);

        Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984);

        Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984).

        Convictions in other states can support departure

        Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984).

        Speculation about possible further crimes not clear and convincing

        Lindsey v. State, 453 So.2d 485 (Fla. 2d DCA 1984);

        Davis v. State, 458 So.2d 42 (Fla. 4th DCA) issued simultaneously herewith.

        Violation of probation is sufficient to allow departure

        Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984);

        Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984);

        Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984);

        Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984);

        Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984);

        Atkinson v. State, 456 So.2d 568 (Fla. 5th DCA 1984);

        Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984);

        Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984);

        Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984);

        Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984);

        Klapp v. State, 456 So.2d 970 (Fla. 2d DCA 1984).

        Probation is not a sentence controlled by guidelines

        Cigelski v. State, 453 So.2d 840 (Fla. 1st DCA 1984).

        Revocation proceedings are within sentencing guidelines

        Olsen v. State, 458 So.2d 772 (Fla. 4th DCA 1984).

        Mentally disoriented sex offender not subject to guidelines

        Sweat v. State, 454 So.2d 749 (Fla. 1st DCA 1984);

        Dorman v. State, 457 So.2d 503 (Fla. 1st DCA 1984).

        Need of mental treatment does not warrant departure

        Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984).

        Mere failure to appear insufficient for departure

        Harms v. State, 454 So.2d 689 (Fla. 1st DCA 1984).

        Agreement as to sentence sufficient for departure Key v. State, 452 So.2d 1147 (Fla. 5th DCA 1984);

        Bell v. State, 453 So.2d 478 (Fla. 2d DCA 1984);

        Green v. State, 460 So.2d 378 (Fla. 2d DCA 1984);

        Harrington v. State, 455 So.2d 1317 (Fla. 2d DCA 1984).

        Judicial discretion not usurped by guidelines Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984); .

        Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984);

        Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984);

        Higgs v. State, 455 So.2d 451 (Fla. 5th DC1984).

        Departure upheld if even one of reasons is clear and convincing

        Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984);

        Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984);
      Contra, Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984);

        Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984);

        Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984); Brooks v. State, 456 So.2d 1305 (Fla. 1st DCA 1984);

        Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984).

        Appeals from departure not barred by guilty plea

        Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984).

        Appeals not waived by failure of defendant to make contemporaneous objection

        Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984); Rhoden v. State, 448 So.2d 1013 (Fla.1984); See also Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984);

        Jolly v. State, 454 So.2d 45 (Fla. 1st DCA 1984);

        Perry v. State, 457 So.2d 543 (Fla. 4th DCA 1984).

        Guidelines do not require defendant to "knowingly and intelligently" select to be sentenced under the guidelines

        Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984);

        Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984).

        Conviction prior to effective date does not prevent election to use guidelines but election may be waived

        Query v. State, 455 So.2d 554 (Fla. 1st DCA 1984);

        Johnson v. State, 453 So.2d 411 (Fla. 1st DCA 1984);

        Harms v. State, 454 So.2d 689 (Fla. 1st DCA 1984);

        Carroll v. State, 454 So.2d 791 (Fla. 5th DCA 1984);

        Olsen v. State, 458 So.2d 772 (Fla. 4th DCA 1984);

        Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984);

        Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984);

        Harrington v. State, 455 So.2d 1317 (Fla. 2d DCA 1984);

        Knight v. State, 455 So.2d 457 (Fla. 1st DCA 1984);

        McGrath v. State, 454 So.2d 694 (Fla. 1st DCA 1984);

        Hernandez v. State, 456 So.2d 1263 (Fla. 4th DCA 1984);

        Ratlin v. State, 455 So.2d 1347 (Fla. 5th DCA 1984).

        Multiple score sheets are impermissible

        Vileta v. State, 454 So.2d 792 (Fla. 2d DCA 1984).

        Written statement not required if reasons for departure transcribed

        Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984);

        Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984);

        Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984);

        Klapp v. State, 456 So.2d 970 (Fla. 2d DCA 1984);

        Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984);

        Rutlin v. State, 455 So.2d 1347 (Fla. 5th DCA 1984);

        Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984);

        Fleming v. State, 456 So.2d 1300 (Fla. 2d DCA 1984);
      Contra Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984);

        Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984).

        Statutory mandatory minimum sentence takes precedence over guidelines

        Maynoldi v. State, 456 So.2d 587 (Fla. 3d DCA 1984).


source: Caselaw Access Project

license: Public Domain

text:
    Robert Gene DAVIS, Appellant, v. STATE of Florida, Appellee.
    Nos. 84-87, 84-164 and 84-383.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This case concerns the Sentencing Guidelines as does Mischler v. State, 458 So.2d 37 (Fla. 4th DCA 1984), issued simultaneously herewith. However, on this occasion we deal with aggravated punishment, outside the Guidelines, predicated on kidnapping, armed robbery and resisting arrest rather than the embezzlement in Mis-chler, Once again we reverse.

The four major reasons for departure given by the trial judge were:

1. The defendant showed no remorse.

2. His suspicion that the defendant appeared poised to commit further violence on the victim: “sexual battery, aggravated battery — could have even been murder.”

3. The attack caused the victim great physical distress and emotional trauma.

4. The defendant had been convicted several times before and was a poor prospect for rehabilitation.

We disagree with reasons 1 and 2 but approve of 3 and 4.

As to the first pronouncement we held in Mischler that lack of remorse (in the face of continuous protestations of innocence) does not justify aggravation. In death cases, our Supreme Court has said the same. Pope v. State, 441 So.2d 1073, 1078 (Fla.1983).

The second ground involved the judge’s speculation as to further crimes to be committed on the victim. Frankly, we think the judge was correct and it appears the victim only escaped from the moving car, in which she was abducted, because she fought like a tigress. Nonetheless, no sexual battery or murder was ever committed. Our sister court has held the possibility of further crime does not support aggravation and we agree for the reasons set forth therein. Lindsey v. State, 453 So.2d 485 (Fla. 2d DCA 1984).

In Mischler we discussed the third basis for aggravation, that is, great physical distress and emotional trauma and we approve it here. See Williams v. State, 454 So.2d 790 (Fla. 5th DCA 1984); Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984); Williams v. State, 454 So.2d 751 (Fla. 1st DCA 1984). The defense argues that armed robbery by its very definition cannot help but induce trauma. This argument troubles us, but we again reiterate that the trial judge retains the right to exercise discretion under the Guidelines and we see no abuse here. The facts show something more than a simple robbery. The young male defendant chose a relatively helpless female to terrorize, kidnap and promise to kill while holding a gun at her head rendering her “madly hysterical.” Little of this was required to snatch her purse and his behavior was repugnant and odious. See Mischler.

Finally, it is argued that the Guidelines already take prior convictions into account on the score sheet and the consequence here is tantamount to a double-dipping sentence. This argument also troubles us, but to accept it would remove the trial judge’s right to exercise his discretion for clear and convincing reasons. As we see it, though we admit the apparent paradox in the Guidelines, our system of criminal justice is in part predicated on enhanced punishment for incorrigibles. If this be true, it cannot help but be a clear and convincing reason for aggravation, notwithstanding built-in provisions for prior criminal convictions on the score sheets. See Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984) and Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984).

Appeals from Guideline departure, despite assurances to the contrary by those who advocated their adoption, are now in full spate. As we see it, the flood cannot subside until the Supreme Court gives guidelines for the Guidelines. Accordingly, deeming the matter to be of great importance, we also certify this entire case to the Supreme Court. Specifically, we ask the following question:

IF THE SCORE SHEETS MAKE PROVISION FOR PRIOR CONVICTIONS, CAN THOSE CONVICTIONS ALSO CONSTITUTE CLEAR AND CONVINCING REASONS FOR AGGRAVATED PUNISHMENT OUTSIDE THE GUIDELINES?

In conclusion, we agree with Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984), that if there are some acceptable clear and convincing reasons for aggravation, unacceptable ones are surplusage. Nonetheless, we must speculate that the profusion of unacceptable reasons in this case may have affected the extent of the departure. Here we have both acceptable and unacceptable reasons for departure. To us, it appears more equitable to reverse and remand for resentencing, especially since the trial judge erroneously contemplated parole by retaining jurisdiction over a third of the sentence. Cynics may observe that a trial judge upon remand will simply decree the same enhanced punishment for the acceptable reasons. Maybe so, and maybe he should. However, he may well not and if the last be possible, simple justice requires that the defendant have his day in court. In all other respects, the judgment is affirmed.

REVERSED AND REMANDED FOR RESENTENCING.

DOWNEY and WALDEN, JJ., concur.

      . The prognostications that only between 15% and 20% of the total case load would result in departure from the guidelines is apparently proving correct. However, the data may contain a certain element of sophistry in that it is also widely believed that after trial, the departure rate skyrockets. We ask for investigation as to the truth of this.


author: OTT, Acting Chief Judge.

text:
    HALLMARK BUILDERS, INC., Petitioner, v. HICKORY LAKES OF BRANDON, INC., Respondent.
    No. 84-1105.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1984.

      Lynn James Hinson of Dean, Mead, Eg-erton, Bloodworth, Capouano & Bozarth, P.A., Orlando, for petitioner.
    Vincent E. Damian, Jr., of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Miami, for respondent.
   OTT, Acting Chief Judge.

Petitioner, plaintiff below, seeks review of an order denying its motion to amend a complaint for specific performance. Petitioner requested permission to add as a new defendant a party who allegedly purchased from respondent a portion of the real property in question. By the same order, the court sua sponte discharged a lis pendens filed by petitioner without affording petitioner notice and an opportunity to be heard. We grant the petition for writ of certiorari and quash the order of the lower court.

The initial complaint was for specific performance of a right of first refusal to purchase real property. The second amended complaint which petitioner was denied permission to file alleges that while the suit was pending respondent conveyed a portion of the property in question to a third party, Interprop. The second amended complaint further alleges that Interprop had actual and/or constructive notice of petitioner’s rights in the property at the time of the conveyance. Petitioner seeks to enforce its right of first refusal against Interprop.

Where a third-party purchaser is aware of a previous contract to sell to another, conveyance to the third party will be deemed fraudulent. Under such circumstances, an action for specific performance against the third party is proper. Coates v. Hale, 429 So.2d 761 (Fla. 1st DCA 1983). In Freeman v. Tucker, 79 Fla. 402, 84 So. 174 (1920), the court held that a third-party purchaser is an indispensable party to a suit for specific performance. Furthermore, failure to name the third party in the suit will subject the case to dismissal. Id. Unless petitioner is allowed to add Inter-prop as a party defendant, the court will be unable to determine the rights of all parties interested in the subject real property. We therefore conclude that the lower court’s denial of petitioner’s motion to amend is a departure from the essential requirements of law resulting in irreparable harm to petitioner.

Petitioner filed the notice of lis pen-dens when it filed the motion to amend. It is not founded on a duly recorded instrument. See § 48.23(3), Fla.Stat. (1983). A petition for writ of certiorari is the proper vehicle to challenge the dissolution of a lis pendens. See State-Wide Construction, Inc. v. Dowda, 424 So.2d 198 (Fla. 5th DCA 1983).

We hold that the trial court departed from the essential requirements of law when it discharged the lis pendens without affording petitioner notice and an opportunity to be heard. See Glusman v. Warren, 413 So.2d 857 (Fla. 4th DCA 1982). At any future hearing, respondent will have the burden of proving that the lis pendens is inappropriate. See Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981).

Under section 48.23(2), a notice of lis pendens not founded on a duly recorded instrument is ineffectual beyond one year from the commencement of the action unless the court extends the time following reasonable notice and for good cause. We do not interpret this statute as a bar to initially filing the notice of lis pendens beyond one year from commencement. If the court can extend the effect of the notice of lis pendens beyond one year, it stands to reason that the court can allow it to be filed beyond one year of commencement in the first place.

We decline to address the merits of whether the lis pendens should or should not be discharged. The parties can present their arguments to the trial court.

Petition for writ of certiorari GRANTED.

SCHOONOVER and LEHAN, JJ., concur.

      . We previously reversed a summary judgment in this case entered in favor of respondent. See Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 444 So.2d 1047 (Fla. 2d DCA 1984).


author: WIGGINTON, Judge.

text:
    C.C.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. AW-464.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.
    Louis 0. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellant.
    T. Edward Austin, State Atty., and Laurence C. Pritchard, Asst. State Atty., Jacksonville, for appellee.
   WIGGINTON, Judge.

This appeal involves the constitutionality of a Jacksonville municipal ordinance that prohibits all forms of begging or soliciting for alms. Appellant appeals his conviction of violation of Jacksonville Municipal Ordinance 330.105, asserting that the trial court erred in denying his motion to dismiss the charge on the ground that the ordinance is unconstitutional. Appellant pled no contest to the charge, reserving this point for review. We find the ordinance constitutionally deficient and reverse.

The ordinance provides:
It shall be unlawful and a class C offense for anyone to beg or solicit alms in the streets or public places of the city or exhibit oneself for the purpose of begging or obtaining alms.

On the other hand, Jacksonville has devised a regulatory scheme for those organizations or groups soliciting for the welfare and happiness of others who cannot or do not help themselves by its enactment of Municipal Ordinance 404.102 providing that no charitable organization shall solicit property or financial assistance without having first registered with the consumer affairs office and having obtained a permit. Further, Ordinance 404.103 provides that no permit is required for a charitable organization to solicit among its members voluntarily and without remuneration for the solicitation or if the solicitation is in the form of collections or contributions at the regular exercises or services of any church, religious society, et cetera.

C.C.B. argues that Ordinance 330.105 is overbroad because it bans all forms of solicitation for alms or charity, that it is in conflict with chapter 404, and further, that it lacks precisely drawn standards to prevent the prohibition of activities protected by the First Amendment. To the contrary, appellee contends that Ordinance 330.105 is not overbroad and not in conflict with chapter 404 when read in pari materia.

In League of Mercy Association, Inc. v. Walt, 376 So.2d 892 (Fla. 1st DCA 1979), this Court upheld the validity of the City of Jacksonville’s Municipal Ordinance Chapter 404 against the constitutional attack that it did not set forth sufficient guidelines for the issuance of permits. When read in pari materia with chapter 404, Ordinance 330.-105 does not prohibit the established first amendment right of individuals or groups to solicit contributions for religious and charitable purposes but merely validly limits that right by requiring permits. Thus, the ordinance is not overbroad in that sense.

However, Ordinance 330.105 is unconstitutionally overbroad by its abridgment in a more intrusive manner than necessary, of the first amendment right of individuals to beg or solicit alms for themselves. The City’s alleged legitimate and compelling interest is its duty and responsibility under its police power to control undue annoyance on the streets and public places and prevent the blocking of vehicle and pedestrian traffic. That lofty goal must be measured and balanced against the rights of those who seek welfare and sustenance for themselves, by their own hand and voice rather than by means of the muscle 'and mouths of others. We have learned through the ages that “charity begins at home,” and if so, the less fortunate of our societal admixture should be permitted, under our system, to apply self help. This right, nevertheless, must be subject to the state’s interest but conditioned upon less intrusive means than absolute preclusion.

We find a dearth of cases in our state to give us guidance and would opine that such scarcity is due to this particular segment of society not having the ability or wherewithal to pursue the challenge. The parties, caught in the same plight, refer us to cases from other jurisdictions which we find to be well reasoned and persuasive in our determinations.

In Goldstein v. Town of Nantucket, 477 F.Supp. 606 (D.Mass.1979), the court found that a troubadour’s public performance of Nantucket’s traditional folk music was clearly within the scope of protected first amendment expression. The court recognized that the rights to the first amendment freedoms are not absolute but are subject to the imposition of reasonable and impartial regulations regarding the time, place and manner of public expression. The court found that Nantucket’s permit requirements did not contain narrow, objective or definite standards and therefore they exceeded in their scope the constitutionally permissible grounds for regulating free expression and consequently the ordinance did not pass constitutional muster. The Goldstein case rejected the older view that commercial speech is not to be afforded the same first amendment protection as other types of speech and stated:

The fact that plaintiff accepts contributions of passersby during his public performance, thus, does not dilute plaintiffs protection of the first amendment.

Goldstein, at 609. See also Virginia State Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) in which the court stated:

Speech ... is protected even though it is carried in a form that is “sold” for profit, and even though it may involve a solicitation to purchase or otherwise pay or contribute money.

We find in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Arizona State Bar’s disciplinary rule prohibiting all advertising by attorneys was struck down on the holding that some commercial speech is entitled to first amendment protection. In People v. Fogelson, 21 Cal.3d 158, 145 Cal.Rptr. 542, 577 P.2d 677 (1978), a Hare Krishna follower was arrested in an airport for soliciting without a permit pursuant to an ordinance that required a permit before soliciting for oneself or another on city property. In a footnote, the court recognized the enlarged first amendment protection of commercial speech as discussed in Bates. The court declared that the state may reasonably regulate the time, place and manner of engaging in' solicitation in public places in order to prevent fraud or undue harassment of passersby. But, in another footnote, the court pointed out that the state must recognize that individuals in public places cannot expect the same degree of protection from contact with others as they are entitled to in their own homes. The court found the ordinance unconstitutional on the ground that it contained no standards to guide licensing officials in exercising their discretion to grant or deny applications to solicit on city property. In concurring, one judge stated:

It has been held that begging and soliciting for alms do not enjoy absolute constitutional protection. (Ulmer v. Municipal Court, 55 Cal.App.3d 263, 127 Cal.Rptr. 445 (1976)).

However, the California statute at issue in Ulmer read as follows:

Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: ... (c) who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms. (Emphasis supplied)

Even in Ulmer, the court referred to the comments of the legislative draftsmen noting that the statute was aimed at the conduct of the individual who goes about the streets accosting others for handouts. The comment stated:

It is framed in this manner in order to exclude from one ambit of the law the blind or crippled person who merely sits or stands by the wayside, the Salvation Army worker who solicits funds for charity on the streets at Christmas time and others whose charitable appeals may well be left to local control. (2 Assem.J. Appendix (1961 Reg.Sess.) Assem. Interim Com.Rep. (1959-1961) Crim.Proc. pp. 12-13.)

Ulmer, 55 Cal.App.3d at 266, 127 Cal.Rptr. 445.

The Ulmer court held that regulation of conduct bearing no necessary relationship to the freedom to speak does not abridge the guarantees of the first amendment. The court stated, however, that the statute in question does not extend to one

... “who merely sits or stands by the wayside.” Walking up to and approaching another for the purpose of soliciting, as opposed to merely receiving donations, is prohibited by the statute. The manner of approach is thus pertinent.

Ulmer, at 267, 127 Cal.Rptr. 445.

On the basis of the above authorities and upon our own reflection, we find that a total prohibition of begging or soliciting alms for oneself is an unconstitutional abridgment of the right to free speech as guaranteed by the first and fourteenth amendments of the Constitution of the United States and article I, section 4 of the Constitution of the State of Florida. No compelling reason justifies that total abridgment. Protecting citizens from mere annoyance is not a sufficient compelling reason to absolutely deprive one of a first amendment right. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Compare also Carter v. Town of Palm Beach, 237 So.2d 130 (Fla.1970), in which, in declaring invalid an ordinance prohibiting the operation of surfboards on the basis that the prohibition was arbitrary and unreasonable, the court ruled that a municipality, under its police power, may regulate and restrain certain activities which threaten the public health, safety and welfare, but the power to restrain and regulate does not include the power to prohibit an activity which is not a nuisance per se. The court determined that surfing was not a nuisance per se.

We conclude that Municipal Ordinance 330.105 is unconstitutional in that it curbs a first amendment right in a more intrusive manner than necessary. The City of Jacksonville is not entitled to absolutely prohibit a beggar’s exercise of his freedom of speech, but the city may regulate that right subject to strict guidelines and definite standards closely related to permissible municipal interests, such as could be imposed by a narrowly drawn permit system. Goldstein; Fogelson. The drafting of such a regulatory ordinance is a task for the City of Jacksonville and not for this Court. We adopt the view of the Fogelson court, which stated:

This Court should not, and does not, undertake the essentially legislative task of specifying which of the legitimate municipal interests in regulating solicitations are to be included in permit conditions, nor how such conditions might be drafted.

Fogelson, 145 Cal.Rptr. at 565, 577 P.2d at 700.

Municipal Ordinance 330.105 is stricken as facially unconstitutional and the order of the trial court denying appellant’s motion to dismiss the charge against him is reversed.

JOANOS and BARFIELD, JJ., concur.


author: SHIVERS, Judge.

text:
    Kyra PHILLIPS and Wayne Phillips, her husband, Appellants, v. UNICARE AMELIA ISLAND, INC., and National Union Fire Ins. Company, Appellees.
    No. AX-221.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.
    Rehearing Denied Nov. 2, 1984.

      Ned I. Price of Lewis & Price, Jacksonville, for appellants.
    Daniel C. Shaughnessy of Coker, Myers & Schickel, Jacksonville, for appellees.
   SHIVERS, Judge.

Kyra Phillips, plaintiff in the proceedings before the trial court, appeals the trial court’s granting of defendant’s motion for summary judgment. We affirm.

Plaintiff began work as a bookkeeper for the defendant/employer herein on July 1, 1981. On January 19, 1982, plaintiff wrote a letter to her supervisor advising him that she was resigning from her position. Plaintiff’s resignation was to be effective January 29, 1982. On January 29, 1982, plaintiff discontinued her daily work for the employer. As of that date, wages were owed plaintiff.

On February 15, 1982, plaintiff went to pick up her last paycheck from the defendant. According to the unrebutted affidavit of plaintiff’s supervisor, this was the first date available to plaintiff to pick up her paycheck due to the defendant’s customary delay in the payment of its employees. Plaintiff was paid on a bi-weekly basis. While leaving the defendant’s premises, plaintiff was injured when a handrail gave way.

On August 31,1982, plaintiff filed a complaint against defendant for the negligent maintenance of its handrail. Subsequently, defendant filed an amended answer setting forth the affirmative defense that plaintiff’s exclusive remedy is found in workers’ compensation. Plaintiff responded by requiring strict proof thereof. Defendant thereafter moved for summary judgment.

In support of its motion, defendant attached, among other items, the above-mentioned affidavit of plaintiffs supervisor. In opposition, plaintiff filed the affidavit of Marge Lehner, the claims representative for the employer/defendant’s workers’ compensation carrier, wherein Ms. Lehner opined that plaintiff was not an employee of defendant as of the date of her accident. Subsequently, after the hearing on summary judgment had been held, plaintiff filed two more affidavits. One affidavit contained as an attachment a letter from Blue Cross/Blue Shield, which letter states that as of January 31, 1982, this organization no longer considered plaintiff an employee of the defendant so as to render plaintiff eligible to receive health care benefits. The second affidavit contained the statement of Gregory Schott, the administrator of the Neurology Clinic where plaintiff was treated, that the employer/defendant’s workers’ compensation carrier had refused payment of plaintiff’s medical bills on two occasions.

The trial court granted defendant’s motion for summary judgment finding that plaintiff’s exclusive remedy lies in the workers’ compensation forum. The trial court summarily denied plaintiff’s motion for rehearing. No mention is made in the trial court’s order denying rehearing whether it considered the two affidavits mentioned above which were filed subsequent to the summary judgment hearing, but prior to the trial court’s order on rehearing. We find that whether the trial court did or did not consider these affidavits is immaterial to our decision.

First, we reject plaintiff’s argument that defendant waived or was estopped to assert that plaintiff’s exclusive remedy is in the workers’ compensation forum by failing to plead this defense until some ten months after plaintiff filed her complaint. We find that plaintiff failed to properly plead waiver or estoppel in avoidance of defendant’s exclusivity defense by not asserting these matters until her motion for rehearing, as opposed to her reply. See Florida First National Bank at Pensacola v. Martin, 449 So.2d 861, 865 (Fla. 1st DCA 1984); Sunrise Lakes Condominium Apartments v. Hechtman, 446 So.2d 272 (Fla. 4th DCA 1984).

Second, we agree with the defendant that the status of an employment relationship can be determined as a matter of law. See Sosa v. Knight-Ridder Newspapers, Inc., 435 So.2d 821, 826 (Fla.1983).

Third, and the crux of this appeal, we find and hold that plaintiff was an employee as of the date of her accident. See Slocum v. Coral Way Cafeteria, 3 FCR 147 (1958) (the Florida Industrial Commission holding the claimant’s injury com-pensable where the claimant left her employment on December 28, 1956, and was injured while returning to her employer on January 7, 1957, for the specific purpose of obtaining the wages due her); 1A A. Larson, The Law of Workmen’s Compensation, § 26.30 (Professor Larson stating that the contract of employment is not fully terminated until the employee is paid, and accordingly an employee is in the course of employment while collecting his pay, unless undue delay is shown). We find plaintiff’s supervisor’s unrebutted affidavit to the effect that this was the first date available to plaintiff to pick up her paycheck dispositive of this issue. This affidavit renders meaningless plaintiff’s argument that a genuine issue of material fact exists, to be determined by the trier of fact, as to whether there was undue delay by plaintiff in picking up her paycheck. Necessarily, there was not an unreasonable period of delay on the part of plaintiff in picking up her paycheck if this was the first date available to plaintiff to do so pursuant to the defendant/employer’s customary mode of payment.

We find that no material issues of fact were raised by the affidavits submitted by plaintiff in opposition to defendant’s motion for summary judgment. These affidavits represent only opinion testimony of various individuals as to whether plaintiff was an employee as of the date of her accident. However, the issue of plaintiff’s employment status was a matter o'f law to be resolved by the trial judge. We find that the trial judge properly resolved this issue based on the unrefuted facts presented to him, in particular, the fact that the date of plaintiffs accident was the first opportunity to plaintiff to pick up her paycheck in accord with the employer/defendant’s normal mode of payment. Accordingly, the summary judgment appealed from is AFFIRMED.

THOMPSON and ZEHMER, JJ., concur.


author: DANIEL S. PEARSON, Judge. HENDRY, Judge,

text:
    James REAVES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1493.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 17, 1984.
    Bennett H. Brummer, Public Defender, and James H. Greason, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We hold that the defendant’s statements, suppressed for the sole reason that the police, in violation of Miranda v. Arizona and its progeny, failed to scrupulously honor the defendant’s assertion of his right to remain silent, are admissible to impeach the defendant despite defense counsel’s claim that in reliance on the trial court’s inadvertent remark that the statements were being suppressed as “involuntary,” defense counsel advised the defendant that the statements could not be used for any purpose.

Reaves was charged with the first-degree murder of one Michael Smith. At trial, Reaves testified that he thought Smith was armed and that during a struggle to prevent Smith from carrying out an earlier threat to harm a female friend of Reaves, Reaves stabbed Smith. On cross-examination, the prosecutor asked:

“Mr. Reaves, did you ever tell anyone that you pulled a knife on Michael Smith because you were angry and that he was harassing you?”

The prosecutor’s question referred to a statement made by Reaves to the police which the trial court had earlier suppressed. Defense counsel, correctly anticipating that the question was a harbinger of impeachment testimony to come, objected to the question on the sole ground that since the court had labeled the statement “involuntary” at the suppression hearing, the statement was inadmissible, not only in the State’s case in chief, but, as well, to impeach the defendant. See n. 2, supra. According to defense counsel:

“I urged that they be suppressed, and your Honor found and used the word, ‘involuntary.’
“That might have been a mistake, but your using the word involuntary, I advised my client that the statements that he made to the police were inadmissible and they were not going to be used.
“... I have a right to rely on what I perceived to be your Honor’s ruling, and if I perceived your Honor’s ruling to be that they were involuntary, I can consider whether I am going to put him on the stand, knowing whether statements made to the police are going to be used or not.
“I am stating, for your Honor’s concern, that I told him, as his lawyer, that the statements that he made to the police would not come into evidence.”

Assuming, arguendo, that counsel for the defendant gave the foregoing advice to his client, the advice was completely unjustified. The motion to suppress was based entirely on the ground that Reaves’ statements were elicited through questioning in violation of Miranda v. Arizona. It is well understood that voluntary statements which are suppressed on the basis of Miranda violations are admissible to impeach the maker of the statement. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Hughey v. State, 411 So.2d 1021 (Fla. 5th DCA 1982). The evidence adduced at the suppression hearing reveals that the questioning of Reaves violated the principles of Miranda v. Arizona, but that his statements were voluntarily made: Reaves first received Miranda warnings upon his arrest soon after the stabbing occurred, and he responded that he did not wish to speak. A short time later, a second police officer, aware that the appellant had said that he did not want to make a statement, began to advise Reaves of his rights again. Reaves interrupted and told this officer that he had already been advised of his rights. The officer then asked Reaves if he wanted to tell him about the stabbing, and Reaves replied that he did it in a fit of anger, and, responding to an inquiry regarding the knife, Reaves said that he had thrown the knife under a car. A third officer, Detective Merritt, readvised Reaves of his Miranda rights en route to the homicide office. Merritt too knew Reaves had earlier been advised of his rights and had said he did not wish to make a statement. Upon arriving at the office, Reaves was taken by Merritt to an interview room and again read his Miranda rights from a printed waiver of rights form. Reaves indicated on the form that he understood his rights and voluntarily agreed to answer questions. No officer threatened Reaves; no promise was made to him; no force was used against him. Detective Merritt then questioned Reaves about the incident. Reaves’ answers to Merritt were held admissible for impeachment purposes:,

“The Motion was made. The basis of the motion was that his Miranda rights were violated by questioning him after he exercised his right to remain silent. I granted the motion based on that testimony.
“Now, if you had a question or something like that you could have clarified it....’’

We suspect that clarification was not something defense counsel wanted and that he was satisfied to rely on the trial court’s inadvertent use of the word “involuntary.” That reliance, as we have said, was manifestly unjustified, and if defense counsel, as he stated, told his client that he could testify without fear of impeachment, that misadvice is something between them which will, we are confident, be a matter for resolution another day. In the meantime, the defendant’s conviction is

Affirmed.

HENDRY, Judge,

dissenting.

I respectfully dissent. In my view, reversal of appellant’s conviction is mandated where the prosecution was allowed to impeach appellant’s trial testimony, over objection, by the introduction of his post-arrest statements to police which the court had previously suppressed as involuntary.

Reaves’ pre-trial motion to suppress certain inculpatory post-arrest statements asserted, among other grounds, that 1) the statements were obtained in violation of appellant’s constitutionally guaranteed right to counsel and privilege against self-incrimination as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and 2) the statements were not freely and voluntarily given, in violation of appellant’s constitutional right to due process of law.

After hearing testimony and argument of counsel and reviewing the case law presented, the court stated its ruling, as follows. “I specifically find under the cases cited to me, and my understanding of the general law, that this was not a voluntary statement, and I will suppress those statements.”

At trial, appellant took the stand and testified in his own behalf, stating that he feared Smith was armed and would carry out his supposed threat to harm appellant’s female friend, so he chased him and stabbed him as they grappled. On cross-examination, over objection, the prosecutor asked whether Reaves had ever told anyone that he pulled a knife on Smith because he was angry and Smith had harassed him; 'that he chased Smith and stabbed him; and that Smith fled when he first saw the knife and was then chased by Reaves. Appellant responded that he either did not make such statements, or could not remember having made them. Defense counsel objected on grounds that the court had suppressed the alluded to post-arrest statements of Reaves to police as involuntary and consequently, they were inadmissible for any purpose, including impeachment.

At a bench conference defense counsel stated that he had relied on the court’s suppression ruling in determining whether to put his client on the stand and the court expressed the view that its ruling did not give appellant the right to commit perjury and that he would allow impeachment of Reaves’ testimony by rebuttal testimony, accepting the state’s argument that this was proper under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

The police officer next testified on rebuttal, over renewed defense objection, that Reaves told him he was unsure whether Smith was armed; that he assaulted him with a knife because he was “fed up” with him; that he had chased and stabbed Smith and that Reaves never told him anything about Smith going to the house of Reaves’ female friend to harm her. No limiting instruction was given to the jury that they should consider the officer’s testimony not for the truth of the matters asserted, but only as bearing on the credibility of Reaves’ testimony.

The trial court apparently relied upon Harris v. New York, supra, in ruling that appellant’s prior inconsistent post-arrest statements to police were available for impeachment purposes. In Harris, the United States Supreme Court held that a defendant’s post-arrest statements given in the absence of Miranda warnings may be introduced for impeachment where the defendant has taken the stand and testified inconsistently therewith and where there was no allegation the statements were involuntary. More on point for the state’s position is a later opinion, Oregon v. Hass, 420 U.S. 714, 43 L.Ed.2d 570, 95 S.Ct. 1215 (1975), wherein the Supreme Court found that the fifth and fourteenth amendments to the Constitution of the United States did not prohibit such impeachment use of a defendant’s incriminating statements given after he was read his Miranda rights and requested an attorney, where he testified inconsistently at trial and there was no suggestion that the statements were involuntary or coerced. This analysis was also applied in Hughey v. State, 411 So.2d 1021 (Fla. 5th DCA 1982).

The necessity for a voluntariness determination was underscored by the Florida Supreme Court in Nowlin v. State, 346 So.2d 1020 (Fla.1977):

[WJhenever the state, in order to impeach a defendant’s credibility, chooses to present evidence of a defendant’s incriminating statements which are inconsistent with trial testimony of the defendant and which, are inadmissible in the case-in-chief because of the failure of custodial officers to give Miranda warnings, the statements must be shown to be voluntary before they may be admitted.

Id. at 1024. See also White v. State, 446 So.2d 1031 (Fla.1984) (defendant's prior inconsistent statements held admissible for impeachment where, although trial court did not specifically rule statements were voluntary, evidence supported such a determination).

In the instant case the trial court expressly ruled that appellant’s post-arrest statements were not voluntary, upon considering the issue in connection with the motion to suppress, involuntariness having been raised as one ground for the motion. A trial court’s ruling as to the voluntariness of a confession comes to the reviewing court with the same presumption of correctness that attaches to jury verdicts and final judgments. DeConingh v. State, 433 So.2d 501 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); Gilvin v. State, 418 So.2d 996 (Fla.1982); Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). Sub judice, there is ample evidence in the record to support the trial court’s initial ruling that appellant’s statements to the police were not voluntary because they were obtained from Reaves after repeated Miranda warnings and attempts at interrogation by several officers in succession where appellant never expressed a desire to make a statement. See United States v. Hernandez, 574 F.2d 1362 (5th Cir.1978) (number of times person in custody advised of rights prior to making statements not immaterial to question of voluntariness); Breedlove v. State, 364 So.2d 495 (Fla. 4th DCA 1978) (continued readings of Miranda rights to accused may constitute undue harassment). Additionally, in view of this express ruling by the trial judge and the record support therefor, it is also clear that the state failed to carry its burden in the court below to show by a preponderance of the evidence that the statements in question were voluntary. See Brewer v. State, 386 So.2d 232 (Fla.1980); Nowlin v. State, supra; Wiley v. State, 427 So.2d 283 (Fla. 1st DCA 1983).

Furthermore, this constitutional error may not, in my view, be considered harmless error, under the standards enunciated in Nowlin v. State, supra, 346 So.2d at 1024 (constitutional error may not be regarded as harmless “if there is a reasonable possibility that the error may have contributed to the accused’s conviction or if the error may not be found harmless beyond a reasonable doubt”); accord Palmes v. State, 397 So.2d 648 (Fla.), rev. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). In this regard, I find particularly applicable the Nowlin court’s further determination that “[t]he admission of the incriminating statements, by undermining the credibility of Nowlin, destroyed a great part of his defense. Unless the jury was fairly sophisticated, the statements were probably considered on the issue of guilt.” Id. at 1024. The absence of any limiting instruction cautioning the jury in the instant case that the rebuttal testimony should be considered only for impeachment of appellant’s testimony that he had not made such statements makes the possibility of such jury confusion all the more likely. The rebuttal evidence clearly prejudiced appellant by making his defenses of self-defense and defense of another appear recently fabricated. Stated otherwise, I would not find that the evidence of appellant’s guilt was so “overwhelming” as to allow us to treat the error as harmless. Jones v. State, 332 So.2d 615 (Fla.1976).

Finally, since the propriety vel non of this impeachment use of appellant’s statements is squarely presented for review, I would consider appellant’s further argument on appeal that no proper predicate was laid for such impeachment. I believe we may not ignore the state’s failure to comply with the statutory prerequisite for such impeachment. Section 90.614(2); Florida Statutes (1981), requires that appellant be afforded the opportunity to explain or deny the prior statements before they are introduced for impeachment purposes. See Wright v. State, 427 So.2d 326 (Fla. 3d DCA 1983) (statute’s mandatory predicate especially applicable in criminal cases where state seeks to use “Miranda-plagued” incriminating admission of defendant for limited purpose of impeaching his veracity). Although in the context of the present case it was likely clear to appellant and his counsel that the statements inquired about on cross-examination were those made to the police and challenged in the motion to suppress, “[t]he proper predicate for impeachment requires the state to advise the defendant the substance of the prior inconsistent statement and the time and place it was made as well as the person or persons to whom made.” Nowlin v. State, supra, 346 So.2d at 1025 (Overton, C.J., concurring).

For the foregoing reasons, I would reverse the judgment appealed and remand for a new trial.

      . In addition to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which, of course, first announced the rule that the questioning of a person in custody must cease when he asserts his right to remain silent, the defendant relied on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Bowen v. State, 404 So.2d 145 (Fla. 2d DCA 1981); Breedlove v. State, 364 So.2d 495 (Fla. 4th DCA 1978), and Jones v. State, 346 So.2d 639 (Fla. 2d DCA 1977), all of which speak to the same proposition.

      . Statements which have been found to be involuntary because they have been obtained through coercive tactics, false promises, and the like, are deemed to be so untrustworthy as to be inadmissible for any purpose, including impeachment. See Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1, 4 (1971) ("It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.").

      . On appeal, Reaves additionally contends that even if the defendant’s statement were admissible to impeach him, the question, "Mr. Reaves, did you ever tell anyone ..., etc.” (emphasis supplied), fails to establish a proper predicate for the introduction of an impeaching statement. Although the question was certainly subject to the objection of insufficient predicate in that it failed to advise the defendant of "the time and place [the statement] was made as well as the person or persons to whom made,” Nowlin v. State, 346 So.2d 1020, 1025 (Fla.1977) (Over-ton, C.J., concurring); see Wright v. State, 427 So.2d 326 (Fla. 3d DCA 1983), no such objection was made below.

      .While the written motion contained a catch-all allegation that the statements were not freely and voluntarily given, no testimony in support of this allegation was adduced.

      . Curiously, the dissent notes that the trial court’s finding that the defendant’s statements were "involuntary” comes to us with a presumption of correctness, and that we cannot overturn such a finding if there is evidence in the record to support it. These legal rules do not apply here because first, the trial court disavows that it found the statements to be involuntary, and second, such a finding would have no record support in any event.

      . At trial, the defendant did not request that the jury be instructed to consider this testimony for impeachment only, and on appeal, he does not complain of the trial court’s failure to give such an instruction.


author: HENDRY, Judge.

text:
    Jose A. JIMENEZ, Appellant, v. GULF & WESTERN MANUFACTURING COMPANY, etc., Appellee.
    No. 83-756.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Tew, Spittler, Berger & Bluestein and Jeffrey Allen Tew, Coral Gables, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   HENDRY, Judge.

Jose Jimenez appeals from an adverse final judgment entered on a jury verdict finding no liability on the part of the manufacturer in this products liability action. We affirm.

The machine involved in this cause was a punch, or power, press owned by Alva Metals and-;.used to prepare metal pieces which would ultimately be assembled to make furniture. This was a multi-purpose machine, doing different functions depending on what dies were being used. It is undisputed that the press, manufactured by ap-pellee in 1937, had no point of operation or other guard system, although Alva Metals was contemplating the addition of one. Appellant’s hand was crushed in the press when he inadvertently slipped and came into contact with some part of the die area. The complaint sounded in strict liability only, and alleged that appellee designed, manufactured, and placed on the market this press which was defective in design, unreasonably dangerous because it lacked a guard system, and the cause of appellant’s injuries. Prior to trial, appellant filed a motion in limine to exclude evidence that any third party had a duty to modify the press to make it safer. This motion was not ruled upon. Appellee’s expert, therefore, was allowed to read to the jury, over objection, 1971 federal OSHA regulations which assigned to the employer the duty of placing a point of operation guard on this machine. In addition, he was allowed to testify about the “ANSI” (American National Standards Institute) standards which also placed the duty to guard on the employer.

It is well settled that if there is any competent evidence to support a verdict, that verdict must be sustained regardless of the district court’s opinion as to its appropriateness. Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977); Miami Herald Publishing Co. v. Frank, 442 So.2d 982 (Fla. 3d DCA 1983); Gonpere Corp. v. Rebull, 440 So.2d 1307 (Fla. 3d DCA 1983); Wash-Bowl, Inc. v. Wroton, 432 So.2d 766 (Fla. 2d DCA 1983). The jury was presented with evidence tending to show that as early as 1922, private industry safety codes recognized that where a punch press could be used for multiple purposes, it made more sense to allow the purchaser to select a guard system compatible with the purpose to which he would use the machine. That is to say, even though there had been developed by 1937 several different guarding systems, and appellee does not dispute that this technology was available at the time it manufactured the punch press, the custom of the industry was to sell these machines unguarded and to let the user choose and install the relevant safety devices. Trade custom at the time of a product’s manufacture is a valid defense in a products liability suit. Ford v. International Harvester Co., 430 So.2d 912 (Fla. 3d DCA 1983). Thus, the jury could reasonably find that even though the manufacturer admittedly placed this machine on the market in a defective condition, the custom of the industry was such that the machine should not be considered “unreasonably dangerous” because the manufacturer’s reasonable expectation was that the user would put a guard on the press.

Against this background, the question of the admissibility of the OSHA regulations, while still troubling, diminishes in importance in this case. First of all, the admission of evidence is a matter within the sound judicial discretion of the trial judge, whose decision in that regard must be viewed in the context of the entire trial. Division of Corrections v. Wynn, 438 So.2d 446, 448 (Fla. 1st DCA 1983). Second, it is clear that evidence of an OSHA violation is admissible in a negligence action for support for a manufacturer’s assertion that its error was not the proximate cause of plaintiff’s injury. Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 (5th Cir.1982) (applying Florida law); Clement v. Rousselle Corp., 372 So.2d 1156 (Fla. 1st DCA 1979), cert. denied, 383 So.2d 1191 (Fla.1980). The ques'tion of the relevance of OSHA violations in a strict liability action, however, is one of first impression in Florida. Decisions in other jurisdictions provide no clear guidance. Certain propositions may be stated, however.

It is well settled that OSHA does not provide the basis for an independent federal cause of action against either employers or third parties such as manufacturers, Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir.1981), nor does it enlarge or dimmish common law or statutory rights, duties, or liabilities. 29 U.S.C. § 653(b)(4) (1976). Perhaps evidence of an employer’s OSHA violation is relevant to the issue of causation in a products liability suit, in much the same fashion as it would pertain to evidence of duty and proximate causation in a negligence action. Additionally, with the proper limiting instruction by the trial court, OSHA standards may constitute some evidence (perhaps weak) of industry custom or practice. There is a suggestion in the cases, however, that, with respect to products liability, an employer’s duty under OSHA should not in fact reduce a manufacturer’s obligation to design and produce safe products. Rexrode v. American Laundry Press Co., 674 F.2d 826, 831 (10th Cir.1982) (“the issue of manufacturer compliance with industry standards is generally considered to be irrelevant in a strict liability case. Rather, it relates to the question of the manufacturer’s duty of care under a negligence theory.”) But see McKinnon v. Skil Corp., 638 F.2d 270, 276-77 (1st Cir.1981) (“evidence of the UL standards, and this particular saw’s compliance with the standards, was properly admitted as some evidence of the defendant’s due care regarding the design and manufacture of the saw and of industry custom and practice.”). There is also some question about a manufacturer’s standing to raise the fact of an employer’s OSHA violation.

We need not resolve these issues here. There is ample evidence in the record to the effect that there was a longstanding industry practice which assigned to the user the responsibility of placing a guard on the machine. Appellant neither challenges the relevance of this practice nor presents evidence to refute its existence. Instead, he argues that there were effective, practical safety guarding systems available in 1937 to be used on punch presses, which fact appellee does not deny. Furthermore, appellant’s foreman testified that Alva Metals did, in fact, know that it was supposed to put a guard on the machine, that it had already put a guard on another press manufactured by appellee, and that the only reason the punch press which injured appellant was still unguarded was because he, the foreman, had “not gotten around to doing it.” On the basis of this evidence alone, without reference to the OSHA and ANSI standards, the jury could conclude that the chain of causation was broken and find the appellee not liable for appellant’s injury. It is axiomatic in a strict liability case that the defect must be the legal cause of plaintiff’s injury. West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976).

Based on the foregoing, we find that admission of evidence on the OSHA and ANSI standards in this case was harmless in light of the other, substantial, competent evidence presented. All other points have been considered and found to be without merit. The judgment below is affirmed.

Affirmed.

      . Occupational Health and Safety Act, 29 U.S.C. § 651, et seq. (1976) (as amended).

      . It must be pointed out, however, that this manufacturer uses the opposite argument where there is an injury and the user has placed a guard on the press. See Merriweather v. E. W. Bliss Co., 636 F.2d 42 (3d Cir.1980) wherein it argued that it could not he held liable for the injuries sustained by Mr. Merriweather because the press in question had been substantially changed (i.e. guarded) by General Electric (plaintiffs employer) after it had left Bliss’ control. Id. at 43.

      . This is a defensive use of the regulations, an attempt to shift responsibility by showing that some OSHA- violation had been committed and said breach is an intervening or superseding cause of plaintiff's injury. It is clear that a defendant manufacturer cannot use an OSHA violation to argue that such a violation constitutes negligence per se because the manufacturer is not a member of the class the regulations are designed to protect. See Groh v. Hasencamp, 407 So.2d 949 (Fla. 3d DCA 1981), rev. denied, 415 So.2d 1360 (Fla.1982) for the Florida rule on negligence per se. Trial courts must make certain that juries understand this; that simply because OSHA is a federal law, it is not dispositive on state law questions of negligence or products liability. It is problematical as to whether a manufacturer should be allowed to raise, as here, the employer’s violation of the regulations as the sole cause of plaintiffs injury when the plaintiff can’t bring the employer in as a party because of workers' compensation immunities and the manufacturer choses not to bring him in either. Again, this situation calls for careful explanation by the trial court so that the jury is clear on the responsibilities of each party.


author: PER CURIAM.

text:
    Lawrence C. MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1826.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Gold & Fox and Myron M. Gold, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The defendant Lawrence C. Moore appeals the denial of his motion to vacate judgment and sentence under Fla.R. Crim.P. 3.850. He claimed below that he received ineffective assistance of counsel from his court-appointed attorney at trial because the said attorney failed to call certain alibi witnesses, failed to call the defendant himself as a witness, and committed sundry other errors. The trial court conducted a full evidentiary hearing and denied the motion.

We have carefully examined the’ briefs and record in this case and conclude that no showing of ineffective assistance of counsel was made in this cause. Counsel declined to call the alibi defense witnesses for sound tactical reasons. Counsel also had a sound basis for advising the defendant not to testify at trial, which advice the defendant voluntarily followed. We recognize that the defendant gave contrary testimony at the hearing below, but the trial court was privileged to reject this testimony in favor of the conflicting testimony of counsel. Finally, the other claimed errors of counsel do not, in our view, rise to the level of ineffective assistance of counsel. See Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Morgan v. State (Fla.1984) (case no. 63,679, opinion filed September 11, 1984) [9 FLW 428]; Adams v. State, 456 So.2d 888 (Fla.1984); Shriner v. State, 452 So.2d 929 (Fla.1984); Jackson v. State, 452 So.2d 533 (Fla.1984); Knight v. State, 394 So.2d 997 (Fla.1981).

Affirmed.


text:
    J.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2155.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

In light of this court’s holdings which we have repeatedly reaffirmed — that mere presence by an accused at the scene of an offense which is committed by another, even under circumstances where there is knowledge that an offense is going to be committed, is not sufficient to establish aiding and abetting, G.C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981); J.L.B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981); J.O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980) — the adjudication of delinquency for theft, on the facts of this case, cannot stand.

Reversed and remanded with instructions to discharge the respondent.


text:
    Robert PERI, Appellant, v. The STATE of Florida, Appellee.
    No. 84-791.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Bennett Brummer, Public Defender and John Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The defendant appeals from the denial of a Fla.R.Crim.P. 3.850 motion based on the alleged ineffectiveness of appellate counsel. See Peri v. State, 412 So.2d 367 (Fla. 3d DCA 1981). Because this claim may be asserted only in a habeas corpus proceeding in the appellate court, Smith v. State, 400 So.2d 956 (Fla.1981); Knight v. State, 394 So.2d 997 (Fla.1981), the order under review is affirmed without prejudice to the filing of such a petition.

      . We do not believe that the record before us renders it appropriate to treat the present appeal as such a petition, as the appellant suggests. Cf. Smith v. State, supra; Roberts v. State, 378 So.2d 887 (Fla. 1st DCA 1979).


text:
    Peter QUACKENBUSH, Appellant, v. PERFORMANCE MARINE, INC., Appellee.
    Nos. 82-2444, 84-1928.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Jerome Bill Ullman, Miami, for appellant.
    Horton, Perse & Ginsberg, and Malcolm H. Friedman, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   ON MOTION FOR CLARIFICATION OF MANDATE

PER CURIAM.

The evidence supports a finding of only $14,498 in damages. See 441 So.2d 679. The $10,000 which plaintiff has already collected against a performance bond must be set-off against the amount of damages as found.


text:
    STATE of Florida, Appellant, v. Robert F. MAYCAN, Appellee.
    No. 84-301.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1984.
    Rehearing Denied Nov. 28, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellant.
    James K. Green of Green, Eisenberg & Cohen, Lawyers, West Palm Beach, for ap-pellee.
   PER CURIAM.

The State of Florida appeals from an order suppressing evidence seized pursuant to two search warrants.

We agree with the trial court’s conclusion that neither the search warrants nor the supporting affidavits particularly described the things to be seized. The warrants identified the items to be seized as “violation of law relating to narcotics or drug abuse being violated therein.” Appellant contends that this description is sufficient to satisfy the requirements of Carlton v. State, 449 So.2d 250 (Fla.1984). We disagree. The warrants considered by the court in Carlton identified the item to be seized as a controlled substance. The trial court correctly found that although it might be inferred from the affidavit in support of the curtilage warrant that the officers were looking for marijuana plants, “nowhere in the affidavit do they so state.” Since neither the warrants nor the affidavits contained a description of the property to be seized, they constituted general warrants authorizing exploratory searches. We affirm the order of suppression on the authority of Carlton v. State, supra.

AFFIRMED.

GLICKSTEIN, DELL and BARKETT, JJ., concur.


author: NIMMONS, Judge.

text:
    Kim RANDOLPH, Appellant, v. STATE of Florida, Appellee.
    No. AZ-498.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.

      Michael E. Allen, Public Defender and Michael J. Minerva, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Randolph appeals her sentence which was imposed under the sentencing guidelines. She complains of the court’s reliance upon the guidelines without her election to be sentenced thereunder. She also asserts that the court erred in relying upon an amendment to the guidelines which provides for “bumping up” the sentence range into the next higher “cell” by reason of Randolph’s probation having been revoked. We reverse on both points.

The defendant was charged with violation of probation. She admitted the violation and her attorney then presented mitigation in an effort to persuade the court not to revoke her probation. When the prosecutor mentioned sentencing guidelines, the defendant’s attorney stated that she did not believe the case would be governed by the guidelines. The court and prosecutor disagreed and, after taking a recess to prepare a guidelines scoresheet, the court proceeded to revoke probation and sentence the defendant to 30 months in the state corrections system. The recommended range under the guidelines score-sheet was “any nonstate prison sanction.” However, the trial court, over counsel’s objection, “bumped up” the sentence range into the next higher cell which provided for “community control or 12-30 months incarceration.” In doing so, the court relied upon Fla.R.Cr.Pr. 3.701 d.14 which provides that sentences imposed after revocation of probation may be increased to the next higher cell without requiring a reason for departure. Rule d.14 was added by amendment on May 8, 1984. The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So.2d 824 (Fla.1984). And although the defendant was sentenced thereafter on June 12, 1984, the amendment was not effective until July 1, 1984. See Chapter 84-328, Laws of Florida.

With respect to the appellant’s first point that she should not have been sentenced under the guidelines, we note that even though sentencing occurs on or after October 1,1983, the guidelines do not apply where the offense was committed prior to October 1, 1983, unless the defendant affirmatively elects to be sentenced under the guidelines. Section 921.001(4)(a), Florida Statutes (1983); In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983); cf. Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984); Harrington v. State, 455 So.2d 1317 (Fla. 2nd DCA 1984) [On Motion for Rehearing]. Although the offense for which appellant was sentenced was committed prior to October 1, 1983, no such affirmative election was made by her. On remand, the trial court should sentence appellant in accordance with the procedures in effect prior to the adoption of sentencing guidelines unless she affirmatively elects to be sentenced under the guidelines.

We also find that the court erred in applying Rule 3.701 d.14 because it was not in effect at the time the defendant was sentenced. See Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). Paschal v. Wainwright, 738 F.2d 1173 (11th Cir.1984), relied upon by the State, is distinguishable.

We realize that a defendant’s violation of probation may be a “clear and convincing reason” for the imposition of a sentence outside the guidelines range. Jackson v. State, supra; Carter v. State, supra. Nevertheless, assuming that she elects on remand to be sentenced under the guidelines, appellant is still entitled to have the trial court properly apply the guidelines including the determination of the particular guidelines cell applicable to the defendant. If, after doing so, the trial judge wishes to impose a sentence outside the guidelines cell, he may do so provided a sufficient basis for the departure is stated by the court in writing as required by Rule 3.701 d.11. Cf. Jackson v. State, supra.

The sentence is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

SHIVERS and WENTWORTH, JJ., concur.


text:
    J.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-906.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.
    Bennett H. Brummer, Public Defender; Lisa Bennett, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Because we find the evidence upon which the trial court based its determination that J.H. had committed a battery and a trespass is insufficient as a matter of law, we reverse the adjudication of delinquency and remand with directions to discharge the appellant. See Owen v. State, 432 So.2d 579 (Fla. 2d DCA 1983); In the Interest of G.J.N., 405 So.2d 787 (Fla. 4th DCA 1981); G.A.D. v. State, 340 So.2d 522 (Fla. 3d DCA 1976).

Reversed and remanded with directions.


text:
    Antonio PERDOMO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1610.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.

      Bennett H. Brummer, Public Defender and George T. Pallas, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The appellant was charged with armed robbery of an automobile and certain jewelry. He was duly convicted. He complains that he did not have a firearm when the jewelry was taken from the victim and therefore he should not receive a minimum-mandatory three-year-sentence. This may be correct as to the jewelry, but he had a firearm when the victim’s automobile was taken. This was part of the charge of armed robbery contained in the information.

The defendant had two defense counsel. The trial court refused to permit a witness to be examined on recross by a second attorney.

We find no error in either instance and affirm. Jacobs v. State, 396 So.2d 713 (Fla.1981); Baggett v. State, 424 So.2d 99 (Fla. 1st DCA 1982).

Affirmed.


text:
    AV-MED, INC., Appellant, v. Larry FRENCH and Dale Carter, Appellees. Dale CARTER, Cross Appellant/Appellee, v. AV-MED, INC., Cross Appellee/Appellant.
    Nos. 83-2158, 83-2157.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.

      Markus, Winter & Feldman and Stuart Markus and Sheldon I. Pivnik, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward Perse, Miami, for appellees.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

By this appeal and cross appeal, we are asked to review two amended final judgments entered in favor of Dale Carter and Larry French in an action which they brought below against their former employer, AV-MED, INC., for commissions allegedly due them. AV-MED appeals contending that (1) the agreement to pay commissions was barred by the statute of frauds, (2) no commissions were due and owing under the oral agreement, (3) an improper reduction was made of proper set-offs allowed by the trial court as to the employee Dale Carter, and (4) the interest due on the bonus commissions was improperly computed. The employee Dale Carter cross appeals contending that no set-offs should have been allowed as to him in favor of AV-MED. We reject all these contentions, save for the interest point, and accordingly affirm in part and reverse in part.

There was sufficient evidence adduced below that the employees herein were employed by AV-MED, INC. under an oral contract for an indefinite period of time. Dale Carter was employed to act as a salesman in soliciting various businesses to become members of AV-MED. The compensation agreement called for a specific salary, plus a commission based on the number of insurance clients which he enrolled. Larry French was employed to act as a marketing director in supervising a number of salesmen who, like Dale Carter, were employed to solicit insurance clients for AV-MED. The compensation agreement as to French called for a base salary, plus a commission based on the sale or enrollment of insurance clients by all salesmen under his supervision.

It is a reasonable, although disputed, interpretation of the contract, based on the evidence adduced below, that these commissions were earned by the employees upon the enrollment of the insurance clients in question, subject to certain conditions subsequent: (1) the monthly premiums from the insurance clients would, in fact, have to be paid by the said clients before the commissions would be payable to the employees in question, and (2) the insurance clients would have to be serviced, if necessary, by the employee Dale Carter, and if not so serviced, a reasonable set-off on the commissions due would be required in AV-MED’s favor.

Both employees performed under their respective oral contracts for approximately one year. Thereafter, Larry French resigned his position and Dale Carter was terminated. Both employees claimed and were denied commissions for insurance clients enrolled on the ground that these commissions were not earned until such time as the monthly premiums were, in fact, paid by the insurance clients. Since the insurance premiums were paid after the employees had left the employ of AV-MED, it was contended that these commissions were not due and owing to the employees in question.

Both employees brought suit claiming that they were entitled to the above commissions. The case was tried non-jury below; the trial court agreed with the employees and ordered the payment of the said commissions. The matter was then referred to a master and thereafter amended final judgments were entered. By these judgments, the trial court (1) computed the interest due on the commissions earned from the date that the employees left the employ of AV-MED, rather than from the dates on which the commissions were payable, and (2) allowed AV-MED a set-off for expenses incurred in servicing Dale Carter’s clients subsequent to his termination, minus the savings in salary which AV-MED experienced as a result of firing Carter. This appeal and cross appeal follow.

First, we conclude that the oral agreements herein were enforceable and were in no way barred by the statute of frauds. Both employees, we think, fully performed under their respective oral contracts, and by so doing, removed such contracts from the statute of frauds. Hiatt v. Vaughn, 430 So.2d 597 (Fla. 4th DCA 1983); Restatement (Second) of Contracts § 130, Comment d (1981).

Second, we have no trouble in concluding that, under the respective oral contracts, the commissions were earned by the respective employees upon the enrollment of the insurance clients in question, subject to the two conditions subsequent stated above. We agree that this was a disputed interpretation based on the evidence adduced below, but we believe it was a reasonable one which the trier of fact was entitled to reach. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).

Third, we conclude that the trial court, via the master, properly computed the set-offs which were allowed in AV-MED’s favor as to the employee Dale Carter. One of the conditions subsequent under his contract was that he was to service, where necessary, the insurance clients whom he had enrolled. AV-MED expended a certain amount of money in servicing these clients subsequent to Carter’s termination and was entitled to a corresponding set-off. The trial court gave AV-MED this set-off, but quite reasonably subtracted therefrom the savings which AV-MED experienced as a result of terminating Carter, namely, one half of his base salary which it did not have to pay as a result of the termination. Both parties object to this result.

The employee Dale Carter argues that his commission should not be reduced by the set-off because he was prevented from servicing the clients due to AV-MED’s unjustified firing of him. It is true that he was prevented from servicing but, under the contract, AV-MED had a right to terminate Carter at any time and did not breach the contract when Carter was fired. AV-MED breached the contract only when it refused to pay Carter his earned commissions. This being so, AV-MED cannot be denied its claimed set-off for exercising a right which it had under the contract.

AV-MED, on the other hand, claims that its set-off should not be reduced by the salary savings which it experienced as a result of terminating Carter. We cannot agree. AV-MED is only out-of-pocket a certain amount of money, namely the expenses which it incurred in servicing Carter’s insurance clients minus the savings which it experienced as a result of firing Carter. It is this out-of-pocket expense, and nothing more, which constitutes AV-MED’s actual losses as a result of Carter’s not servicing his insurance clients. This expense was therefore the proper set-off for AV-MED in this case.

Finally, we conclude that the trial court improperly computed the interest due on the commissions earned by the employees herein. The trial court ordered the interest to run from the date these employees left the employ of AV-MED. That is not the proper date because the commissions were, in fact, not payable on that date but were only payable when the premiums were, in fact, paid by the insurance clients in question. The interest should have been computed from the various dates on which these commissions were, in fact, payable under the contracts herein. Parker v. Brinson Construction Co., 78 So.2d 873, 874 (Fla.1955).

The final judgment is reversed solely as to the interest due on the above-stated commissions and is affirmed in all other respects. The cause is remanded to the trial court with directions to recompute the interest due herein in accord with this opinion and thereafter to enter new judgments thereon.

Affirmed in part; reversed in part.


text:
    Juan Jose GARZON, Appellant, v. The STATE of Florida, Appellee.
    No. 84-442.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Ferguson v. State, 417 So.2d 639 (Fla.1982).


text:
    The STATE of Florida, Appellant, v. Robert Lee LINDBERG, Appellee.
    No. 84-471.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Levin, 452 So.2d 562 (Fla.1984), adopting Levin v. State, 449 So.2d 288 (Fla. 3d DCA 1983); State v. Ecker, 311 So.2d 104 (Fla.1975), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); Kayes v. State, 409 So.2d 1075 (Fla. 2d DCA 1981); Dean v. State, 406 So.2d 1162 (Fla. 2d DCA 1981); Pomerantz v. State, 372 So.2d 104 (Fla. 3d DCA 1979).