author: SCOTT, ROBERT G, Judge. DANIEL S. PEARSON, Judge,

text:
    Felix GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1777.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Bennett H. Brummer, Public Defender, and Jeffrey A. Schwarz, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and ROBERT C. SCOTT, Associate Judge.
   SCOTT, ROBERT G, Judge.

This appeal concerns the propriety of the lower court’s failure to grant defendant’s motions for mistrial based upon improper prosecutorial questioning and comment which permeated and unalterably tainted the jury trial. We reverse.

Appellant was found guilty of the crime of robbery with a firearm and an adjudication and judgment for robbery was entered by the court.

While it appears, at first blush, that the evidence adduced was sufficient to sustain the jury verdict, nevertheless we reverse because of the incredible prosecutorial conduct which fundamentally tainted the trial.

Although the trial judge sustained a plethora of defense objections to questions propounded by the assistant state attorney and rebuked and admonished him on several occasions, no curative instructions by the court could dissipate the prejudicial effect of the prosecutorial errors complained of in this appeal. Most of the improprieties arose during the state’s attempt to cross-examine the victim, the appellant or the appellant’s co-defendant. A few examples follow:

To the victim:
Q. Have you ever been the victim of a crime before?
A. No.
[Objection sustained.] [T 298]
Q. Do you think all victims know the people that rob them?
[Objection sustained.]
Q. When you came to this country, Juan, did you have any money?
A. No.
Q. Everything that you have been able to earn, you have had to earn since you have come over here.
A. Yes, sir.
Q. Tell the jury some of the jobs you have done since you have been over here to earn money.
[Objection sustained.] [T 236]
Q. Now Juan, would you characterize yourself as wealthy or poor?
[Objection sustained.] [T 239]
To the appellant:
Q. Have you had a chance to discuss this case with your attorney?
A. Yes.
[Objection on grounds of attorney-client privilege sustained.] [T 492]

After eliciting from appellant that he discussed the case with the co-defendant but did not discuss what appellant was going to say in court:

Q. What did you talk about?
A. Well, we have talked about things, about cigarettes, things like that.
Q. This really was not on your mind?
[Objection sustained.] [T 493]
To appellant’s co-defendant:
Q. Tell me something. How did your kids feel about you taking them down to the corner when you went to buy cocaine ...?
Q. Why don’t you do it [cocaine] in front of your family?
[Objections were sustained to the foregoing questions.] [T 585-588]

Obviously, some of the state’s questions were venal efforts to paint the victim as an object of sympathy and color the appellant and his co-defendant as vile drug users who exposed their families to the street trade of drugs.

In addition to the improprieties exemplified above, the assistant state attorney was admonished for continuously summarizing testimony and for repeating questions to which objections had been sustained.

In sum, the assistant state attorney’s prosecutorial efforts were outrageous. They demonstrated total ineptness regarding cross-examination.

A view of the entire record mandates reversal. See Coleman v. State, 420 So.2d 354 (Fla. 5th DCA 1982); Knight v. State, 316 So.2d 576 (Fla. 1st DCA 1975).

Reversed and remanded.

DANIEL S. PEARSON, Judge,

concurring.

Because this case is being remanded for a new trial, the prosecutor should be reminded (as he was by the trial court continuously throughout the trial) that it is highly objectionable for him to make a closing argument to the jury in the guise of cross-examining defense witnesses. Omitting defense counsel’s interspersed objections, motions to strike, and motions for mistrial, the following are some examples of these improper questions (in actuality, statements in the form of questions) which appear in this record:

“You heard the police officers testify that at the time they took the description of the people that were involved in the incident, [the victim] told the police he did not know the name of these people?”
“Now we know that the victim called the police because you have heard the police officers testify.”
“We know from the police officers’ testimony that [the victim] called the police very, very soon after the incident that supposedly happened at quarter to ten or somewhere in that area, correct?”
“Now, why do you think, if you know — if you know, why would you think he would call the police and risk having his car stopped if he had the possibility of losing the fourteen grams of cocaine after the police would have stopped you?”
“Do you recall hearing the testimony of Clara Suarez and Gloria Suarez and Ma-lagro Dominguez to the facts that Juan Barberis [the victim] was crying at the time he came into the house?”
“Now, you heard a police officer testify that at the time that Juan Barberis saw Felix Gonzalez in the market, he immediately knew that this was one of the men that was there .... He held him at gunpoint until the police came.... And gave a positive identification.”
“Do you remember when Officer Swager testified? ... Do you recall him saying he was not aware of any keys being found inside the car?”
“Now, you also heard the testimony from Juan Barberis that he went out and actually looked for the car, walked around the streets, but could not find the car.”
“Now, some of the witnesses testified that aside from Felix Gonzalez, they had seen you with a gun .... You heard Juan Barberis testify to that _ I think Malagro Dominguez also testified to that .... Clara was not sure, you recall.”
“Now, you have heard testimony that there were a lot of people in that house.... Did you hear anybody testify in here that they heard that statement made?”

The functions of cross-examination are to elicit testimony concerning the facts of the case and to test the credibility of the witness. What a witness did or did not hear other witnesses say in the courtroom tends neither to prove nor disprove any material fact in issue and is therefore totally irrelevant unless, which is hardly the case here, the witness’s ability to hear is in issue. Thus, it is clear that the prosecutor’s foregoing and like questions can lead to no admissible testimony and serve the singular and improper purpose of recapitulating the testimony of the State’s witnesses at a point in the trial when such recapitulation is not called for. I am not aware of any authority which accords to any party the right to make a closing argument in mid-trial and a second at the trial’s conclusion.


source: Caselaw Access Project

author: SHIVERS, Judge.

license: Public Domain

text:
    Peter LOWERY, Appellant, v. STATE of Florida, Appellee.
    No. AT-278.
    District Court of Appeal of Florida, First District.
    May 18, 1984.

      P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Lowery appeals his conviction and sentence for robbery with a firearm. Appellant contends that the trial court erred in denying his motion for judgment of acquittal because the State failed to establish that appellant perpetrated the robbery. We disagree and affirm.

The State’s evidence against appellant was entirely circumstantial. It is true, as argued by appellant, that circumstantial evidence is insufficient to support conviction if it fails to exclude every reasonable hypothesis of innocence. Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). It is also true, however, that the test to be applied in reviewing the denial of a motion for judgment of acquittal is not whether in the opinion of the trial judge or appellate court the evidence fails to exclude every reasonable hypothesis of innocence, but whether the jury must reasonably so conclude. Pressley v. State, 395 So.2d 1175 (Fla. 3d DCA), rev. denied, 407 So.2d 1105 (Fla.1981). Stated otherwise, the test is whether the jury, as trier of fact, might reasonably conclude that the evidence excluded every reasonable hypothesis but that of guilt. Knight v. State, 392 So.2d 337 (Fla. 3d DCA), rev. denied, 399 So.2d 1143 (Fla.1981).

In the instant case, we think the circumstantial evidence was sufficient. Appellant, while arguing that the evidence does not exclude every reasonable hypothesis of innocence, has not suggested to this court any such hypothesis. Nor can we, after reviewing the record, imagine any hypothesis of innocence so plausible that the jury could not have rejected it as unreasonable. Brown v. State, 369 So.2d 91 (Fla. 1st DCA 1979), relied upon by appellant, is factually distinguishable.

AFFIRMED.

BOOTH and JOANOS, JJ., concur.


author: PER CURIAM.

text:
    Stanley HEATH, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2634.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.

      Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The sentence under review is reversed and the cause is remanded to the trial court for re-sentencing before a different trial judge to be assigned according to the established administrative procedures of the Circuit Court for the Eleventh Judicial Circuit of Florida. The court below failed to comply with the terms of a plea agreement previously accepted by the court in this case; upon remand, the reassigned trial judge is directed to impose a sentence in accord with the terms of the original plea agreement.

The defendant Stanley Heath was charged by information with two counts of involuntary sexual battery involving minor children. He initially entered a plea of not guilty, but subsequently changed this plea and entered a plea of guilty pursuant to the terms of a plea agreement which was accepted by the court. Under the terms of this agreement, the defendant pled guilty as charged, was found to be a mentally disordered sex offender, and was committed to the Department of Health and Rehabilitative Services to participate in a custodial treatment program for sex offenders pursuant to Section 917.19, Florida Statutes (1977). It was agreed that upon completion of this program, the defendant would be returned to court whereupon the court would determine what sentence, if any, should be imposed on the defendant; that the court would take into consideration the defendant’s successful completion of the above-stated treatment program, if such was the case; that the trial court would maintain an “open mind” as to the sentencing decision, but that in no event would the defendant be sentenced to more than twenty (20) years’ imprisonment. The relevant portion of the plea agreement was stated on the record at the time of the entry of the guilty plea as follows:

“THE COURT: No, the Court is in no way indicating what sentence, if any, it would impose, but what the Court is saying is in [the] event that the Court finds a sentence should be imposed under your negotiations, a sentence, if it were imposed could not exceed a maximum of twenty years to cover both.
[DEFENSE COUNSEL]: I am stating this on the record; I believe we discussed it and I believe it is important to my client that he understand that his successful completion in the program would be taken into the consideration by the Court.
THE COURT: Absolutely.
At this time the Court is not making any determination whether a sentence should be imposed at that time or not or any facts which should be appropriate for the Court to consider after the defendant has completed the program.
In other words, the Court will rule with an open mind at that time.
[DEFENSE COUNSEL]: That is all we are asking, Your Honor.”
(Tr. 5-6)

The defendant Stanley Heath thereupon was committed to the custodial sex offender program where he stayed for approximately four years. Without dispute, he successfully completed this program and was recommended by the hospital staff for out-patient treatment. He was thereupon returned to the trial court for a determination of what sentence, if any, should be imposed in the case. Due to the lapse of time, the original trial judge was no longer on the bench and a new trial judge was assigned to the case. This judge imposed a sentence of twenty (20) years’ imprisonment with credit for time served, treating the plea agreement, in effect, as a plea to twenty years’ imprisonment to be imposed upon successful completion of the sex offender program. The defendant Heath appeals the sentence on the basis that it was not imposed in accord with the plea agreement. We agree and reverse.

The trial judge at the sentencing hearing stated that she was treating the plea agreement as one “negotiated for a 20-year sentence and that prior to his beginning to serve the 20-year sentence in the State Prison, he was going to successfully complete the Mentally Disordered Sex Offender Program” (Tr. 20) although she later acknowledged that the twenty (20) years’ imprisonment was technically only “a cap” (Tr. 21); that she considered the sex offenses in question far too serious to impose anything less than twenty (20) years’ imprisonment; that it mattered not whether the defendant had successfully completed the sex offender program in view of the seriousness of these offenses; and that it was the defendant’s “hard luck” to draw her as a trial judge upon remand given her strong views on sex offenses involving minor children. Plainly, this trial judge was in no position to honor the plea agreement herein given her strong personal views concerning the crimes in question and, indeed, it is questionable whether she would have ever accepted the plea agreement, as negotiated, had she been the original trial judge in the case. It is therefore our view that she should have recused herself from the case as she could not conscientiously honor the terms of the plea agreement.

We in no way question the integrity or strong views of the trial judge in this matter and indeed find these views perfectly reasonable. We hold only that this judge, for conscientious reasons, was in no position to honor the plea agreement approved by another trial judge in this case. The case should therefore be reassigned upon remand to another trial judge who is able to honor the original plea agreement by (a) ruling with an open mind as to what sentence, if any, should be imposed in this case, taking into actual, not just pro for-ma, consideration the defendant’s successful completion of the sex offender program and all other relevant factors, and (b) imposing, in no event, a sentence in excess of twenty (20) years’ imprisonment. Damm v. State, 402 So.2d 52 (Fla. 3d DCA 1981); Overman v. State, 368 So.2d 434 (Fla. 3d DCA 1979).

Reversed and remanded.


author: OTT, Chief Judge.

text:
    AMALGAMATED TRANSIT UNION, LOCAL 1593, AFL-CIO, Appellant, v. HILLSBOROUGH AREA REGIONAL TRANSIT AUTHORITY, Appellee.
    No. 83-702.
    District Court of Appeal of Florida, Second District.
    May 23, 1984.

      Tobe Lev and Joseph Egan, Jr., of Egan, Williams & Lev, Orlando, for appellant.
    George Barford and John W. Boult of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee.
   OTT, Chief Judge.

The trial court entered a final summary judgment vacating an arbitration award on the grounds that the arbitrator exceeded his authority under the collective bargaining agreement in determining that discharge was too severe for the proven infraction. We reverse.

The following facts appear in the arbitrator’s award. A bus driver employed by appellee and a member of appellant asked a passenger on a bus he was driving to stop smoking a cigarette. The passenger continued to smoke. The driver renewed his request whereupon the passenger threw her cigarette out of the window. Later, as the passenger disembarked, she made an obscene gesture toward the driver and spit on him. The driver left his bus in a traffic lane, chased the passenger, and pushed her. The arbitrator noted that a dispute existed as to whether the passenger fell to the ground or against a fence. The passenger did not testify. There was also conflicting testimony about whether the driver engaged the brake before leaving the bus. The arbitrator’s written award did not resolve these conflicting versions of the episode. As a result of the incident, the driver was discharged by appellee.

Appellant brought a grievance on behalf of the driver. The matter was referred to arbitration pursuant to the collective bargaining agreement between the parties. The arbitrator found that the driver had committed an offense which warranted corrective action or punishment. However, the arbitrator concluded that discharge of the driver was too harsh and therefore not for sufficient and just cause. Appellee was ordered to reinstate the driver with back pay. If the arbitrator had the authority to so interpret the agreement, then his conclusion based on the facts is certainly proper.

Appellee applied to the circuit court for vacation of the arbitration award. The circuit court found that the arbitrator had exceeded his authority under the collective bargaining agreement when he assessed the appropriateness of the punishment, imposed by management. Consequently, the arbitration award was vacated.

Appellee points to Article 3, section 1, of the collective bargaining agreement between the parties, the Authority’s Management Rights article. It says that appellee “reserves and retains exclusively [the right] to suspend, discharge, demote or otherwise discipline employees for sufficient and just cause.” Appellee argues that because the arbitrator found the driver’s conduct warranted some type of corrective action or punishment, the choice of whether to fire the driver, merely suspend him, or impose some other discipline was entirely the appellee’s under the terms of Article 3, section 1. In short, appellee contends that the agreement precluded the arbitrator from determining the appropriateness of the punishment under the facts.

The arbitrator interpreted this portion of the collective bargaining agreement differently. Implicitly, the arbitrator determined that under the contract there might be just cause to impose some type of discipline when there was not just cause to fire. He concluded the agreement authorized him to determine whether the proven infraction, under the surrounding facts and circumstances, justified the particular punishment chosen by the employer. Under the particular facts of this case, the arbitrator found that the driver’s conduct was not so outrageous that appellee could dismiss him.

This case is similar to International Association of Machinists v. San Diego Marine, 620 F.2d 736 (9th Cir.1980). There, management dismissed an employee and the union protested the dismissal before an arbitrator. The union asserted, among other things, that the employee was fired without just cause. The arbitrator found that, although the employee’s misconduct justified disciplining him, firing was too severe a sanction. The district court confirmed the arbitrator’s award.

On appeal, management pointed to a clause in the collective bargaining agreement between the parties similar to the Management Rights article in our case. It provided, “[t]he right to ... suspend or discharge employees for just cause .. [.] is vested exclusively in this Company, subject to the terms of this agreement.” Id. at 738. Management asserted that because the arbitrator found just cause for disciplinary action, the choice of whether to fire or merely suspend the employee was entirely management’s. The court affirmed the arbitrator’s determination that under the contract there might be just cause to suspend but not just cause to fire. The court quoted from United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960):

[T]he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; so far as the arbitrator’s decision concerns the construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.

Id. at 739.

In our case, the circuit court erred in vacating the arbitrator’s award. The collective bargaining agreement charges the arbitrator with interpreting that agreement. The arbitrator’s decision should not be overturned merely because another plausible interpretation exists.

REVERSED with instructions to reinstate the arbitration award.

BOARDMAN and GRIMES, JJ., concur.

      . The record reflects that the arbitrator also concluded that in the absence of a stipulation of the parties, the agreement did not allow him to impose a lesser or different punishment than that administered by the employer. He noted that while there was "considerable discussion respecting the power of the arbitrator to modify the penalty to a less severe disciplinary action ... the parties did not so stipulate.” Whether we might conclude otherwise is irrelevant as this court has already determined that “an award may not be vacated upon a mistake of fact or law but only upon one of the statutory grounds.” McDonald v. Hardee County School Board, 448 So.2d 593 (Fla. 2d DCA 1984). In our case, appellee does not raise this issue but rather chooses to stand or fall on the right of the arbitrator to apply the just cause test to the particular disciplinary action of discharge.


author: HERSEY, Judge.

text:
    PANDOL BROTHERS, INC., a corporation, Appellant, v. NCNB NATIONAL BANK OF FLORIDA f/k/a Gulfstream Bank, N.A., Appellee.
    No. 83-2004.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.
    Rehearings Denied June 14, 1984.

      Gary Gerrard of Haddad, Josephs & Jack, Coral Gables, for appellant.
    Karen Kantner and Frank J. Sinagra of Britton, Cohen, Cassel, Kaufman & Schantz, P.A., Fort Lauderdale, for appel-lee.
   HERSEY, Judge.

Pandol Brothers, Inc., appeals from a summary final judgment in favor of NCNB National Bank of Florida (NCNB) permitting recovery for the amount of an overdraft in the account of Pandol Brothers, occasioned by the dishonor of three checks by Commercial Trust Bank, the bank on which the checks were drawn. We reverse.

Pandol Brothers maintained a business checking account with NCNB whereby NCNB agreed to honor demand drafts (checks) drawn upon the account, and Pan-dol Brothers agreed to make deposits into the account sufficient to cover such drafts. This procedure established what is commonly referred to as a provisional credit.

On January 28, 1982, Pandol Brothers deposited three checks to its account. Those checks were forwarded to Manufacturers Hanover Trust Company for collection through the Federal Reserve System. Manufacturers Hanover caused the checks to be delivered to Commercial Trust Bank where, in due course, they were dishonored. It is unclear from the record whether the checks were initially returned to NCNB on February 3rd, and, while that fact may need to be established in terms of ultimate liability, it is not an essential determination underlying the conclusion we reach based upon the additional facts. The record is clear that the checks were ultimately returned unpaid to NCNB on February 23, 1982, and debited to the account of Pandol Brothers in two installments, one on March 12, 1982, and one on March 18, 1982. These debits created an overdraft of $13,710.38, the amount of the underlying summary final judgment.

The primary issue on appeal is whether NCNB had the right to charge back to the account of Pandol Brothers the amount of the overdraft generated by dishonor of the checks during the process of collection. Whether we reach the substantive issue turns upon the question of whether procedurally the issue has been raised by the pleadings and, if so, whether a genuine issue of material fact remained unresolved on the record before the trial court at the time of the summary final judgment.

The legal issue involved is encompassed by Section 674.212(1), Florida Statutes (1983), which provides:

Right of charge-back or refund.—

(1) If a collecting bank has made provisional settlement with its customer for an item and itself fails by reason of dishonor, suspension of payments by a bank or otherwise to receive a settlement for the item which is or becomes final, the bank may revoke the settlement given by it, charge back the amount of any credit given for the item to its customer’s account or obtain refund from its customer whether or not it is able to return the items if by its midnight deadline or within a longer reasonable time after it learns the facts it returns the item or sends notification of the facts. These rights to revoke, charge back and obtain refund terminate if and when a settlement for the item received by the bank is or becomes final (ss. 674.211(3) and 674.-213(2), (3)).

Pandol Brothers’ position on appeal is that NCNB, in failing to send notification of the dishonor by its midnight deadline or within a longer reasonable time, lost the right to charge back its account. This issue was initially raised in paragraph 9 of the answer and counterclaim of Pandol Brothers by way of affirmative defense.

It is well established that summary final judgment is appropriate only where each affirmative defense has been conclusively refuted on the record. Spear v. Martin, 330 So.2d 543 (Fla. 4th DCA 1976). It is undisputed that NCNB failed to meet its midnight deadline in notifying Pandol Brothers of dishonor of the checks. The remaining factual issue is whether the period of time between NCNB’s learning of the dishonor and notification by it to Pandol Brothers was “a longer reasonable time.” Based on the existence of this issue, we reverse the summary final judgment.

Appellee points out, and correctly so, relying upon Ratner v. Central National Bank of Miami, 414 So.2d 210 (Fla. 3d DCA), pet. for review denied, 424 So.2d 762 (Fla.1982), and Section 674.212(4), Florida Statutes (1981), that the right to charge back is not affected by the “[fjailure by any bank to exercise ordinary care with respect to the item .... ” However, the right of charge-back created by Section 674.212(1) is expressly predicated upon the bank’s notification of the customer “by its midnight deadline or within a longer reasonable time after it learns the facts .... ” Thus, the general rule does not apply in the case of negligent notification. Further, where notification occurs within a reasonably longer time rather than before its midnight deadline, the collecting bank has the burden of establishing that the time is reasonable. § 674.202(2), Fla.Stat. (1981).

Because the foregoing requires that the matter be remanded to the trial court for further proceedings, we address the second aspect of appellant’s position on appeal, which has reference to requests for admission promulgated by Pandol Brothers, and unanswered by virtue of an order denying that relief to Pandol Brothers. Request number 8 was not objectionable as asking for a conclusion of law, but would more appropriately be characterized as requiring “an application of law to fact,” permissible under Salazar v. Valle, 360 So.2d 132, 134 (Fla. 3d DCA 1978).

Recognizing that, in the absence of an abuse of discretion, an order of the trial court determining whether there has been failure to comply with procedural rules should be affirmed, Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972), we nonetheless hold that requests numbered 18 and 19 are also appropriate for response and require a minimum of effort on the part of NCNB. In short, the information necessary to respond to these requests falls within the category of readily obtainable information which NCNB has a duty under the rules to obtain.

REVERSED and REMANDED.

DOWNEY and DELL, JJ., concur.


text:
    Arnold Francis IRWIN, Appellant, v. STATE of Florida, Appellee.
    No. 84-93.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1984.
    Rehearing Denied June 27, 1984.
    Arnold Francis Irwin, Polk City, pro se, appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

Affirmed on the authority of Smith v. State, 400 So.2d 956 (Fla.1981); Knight v. State, 394 So.2d 997 (Fla.1981); Suto v. State, 422 So.2d 924 (Fla. 2d DCA 1982).

ANSTEAD, C.J., and DOWNEY and HURLEY, JJ., concur.


author: COWART, Judge.

text:
    Jesse SKINNER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1158.
    District Court of Appeal of Florida, Fifth District.
    May 24, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee; and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

We agree with Ballard v. State, 447 So.2d 1040 (Fla. 2d DCA 1984), and hereby express direct conflict with Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960), and now expressly hold that section 790.19, Florida Statutes (1983), is violated by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who shoots at, within, or into the building per se. See Johnson v. State, 436 So.2d 248 (Fla. 5th DCA 1983).

AFFIRMED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: RYDER, Judge.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. James PRICE, Appellee.
    Nos. 83-968, 83-1649.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Jeffrey R. Fuller and Larry W. Wertz of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Petersburg, for appellant.
    Albert B. Lewis of Piper, Esteva, Karvo-nen & Lewis, St. Petersburg, for appellee.
   RYDER, Judge.

James Price, the plaintiff below, had obtained automobile insurance from Kenil-worth Insurance Company. During the policy period, Price was involved in an automobile accident which resulted in litigation.

The insurance policy included a-provision that Kenilworth “will settle or defend, as we consider appropriate, any claim or suit asking for these damages. Our duty to settle or defend ends when our liability for this coverage has been exhausted.” Kenil-worth selected a law firm (herein referred to as “the Piper firm”) to represent Price and Kenilworth.

Subsequently, Kenilworth underwent liquidation and an ancillary receiver was appointed. Additionally, Florida Insurance Guaranty Association (FIGA) was appointed to fulfill Kenilworth’s obligations.

In June 1982, Price filed a complaint seeking a declaratory judgment that FIGA was responsible for the continued defense of the two lawsuits which had been filed against Price as a result of the automobile accident. Also, the complaint sought to hold FIGA responsible for the payment of attorney’s fees and costs incurred both before and after Kenilworth’s insolvency.

The trial court found, inter alia, that Price was not personally liable for the Piper firm’s fees which were incurred prior to Kenilworth’s insolvency, in defense of the two negligence lawsuits, and FIGA was not liable to Price for these pre-insolvency fees. The court found that Price could recover from FIGA pre-insolvency court costs and personal costs, as well as post-insolvency attorney’s fees. Attorney’s fees for the case sub judice were also awarded by the trial court. Notices of appeal and cross-appeal were timely filed by the parties.

After an examination of the various issues raised on appeal and cross-appeal and the applicable statutory and case law, we find only one issue which warrants discussion: whether the trial court’s award of pre-insolvency court costs is erroneous.

Apparently, the trial court believed that the pre-insolvency court costs were “covered claims” within the meaning of section 631.54(4), Florida Statutes (1981). Kenil-worth Insurance Company, pursuant to its contractual duty to defend Price, incurred the $44.60 in court costs through the Piper firm. As Price did not incur the costs, they are not covered claims under section 631.-54(4). See Argonaut Insurance Co. v. Maryland Insurance Co., 372 So.2d 960 (Fla. 3d DCA 1979). Appellee’s argument that Argonaut is not applicable is unpersuasive. Therefore, we reverse the award of the pre-insolvency court costs. On remand, the trial court shall strike the award of $44.60 in court costs. The remaining portion of the trial court’s order is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

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


text:
    Helene J. POSTMAN, Appellant, v. PELZNER, SCHWEDOCK, FINKELSTEIN & KLAUSNER, P.A., f/k/a Pelzner, Schwedock & Finkelstein, P.A., a Florida professional association, Appellee.
    No. 83-2384.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.

      Joel P. Koeppel and Stuart M. Gottlieb, West Palm Beach, for appellant.
    Brumer, Cohen, Logan & Kandell and Kenneth R. Duboff, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARKDULL and BASKIN, JJ.

         Participated in the decision but not in oral argument.

   PER CURIAM.

This is an action between the appellee lawfirm and a former client over attorney’s fees. The client was representing herself. The matter was originally set for jury trial in the spring of 1983. The case was continued at the request of the plaintiff. The parties agreed that the matter would be reset in the fall of 1983. The court on its own set the cause for trial during the first 2 weeks of August, 1983. Everybody concedes that the defendant did not receive notice of the calendar call. Although she had notified plaintiff’s counsel and the judge’s office that she would be unavailable in August and had filed a motion for continuance, setting forth such unavailability, on August 1st she was notified by the judge’s office that the case would be tried on August 2nd. She did not appear and suffered an adverse jury verdict of $15,-000.00. We reverse.

All parties concede that the defendant had no notice of the calendar call which fixed the date of the trial and the trial judge having indicated that if she had been present at the calendar call he would have granted her motion for continuance, we find it error to have gone forward with the trial and to have denied her motion for new trial. Ford v. Ford, 150 Fla. 717, 8 So.2d 495 (1942); Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276 (1933); In Re Estate of Rutherfurd, 304 So.2d 517 (Fla. 4th DCA 1974).

Therefore we reverse the final judgment under review and return the cause to the trial court for the purposes of a new trial.

Reversed and remanded.


author: BASKIN, Judge.

text:
    RAUL DISTRIBUTORS, INC., Appellant, v. FAST AIR CARRIER, LTD., Appellee.
    No. 84-80.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.

      Alan J. Kluger, Miami, for appellant.
    Hayden & Milliken and John D. Kallen, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   BASKIN, Judge.

Raul Distributors, Inc. (Raul) appeals the entry of final summary judgment in favor of Fast Air Carrier, Ltd. We reverse.

It is axiomatic that summary judgment is inappropriate where the record reflects the existence of conflicting issues of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Levey v. Getelman, 408 So.2d 663 (Fla. 3d DCA 1981). Additionally, the burden is on the party moving for summary judgment to prove the non-existence of any genuine issue of material fact. Holl v. Talcott; Stringfellow v. State Farm Fire & Casualty Co., 295 So.2d 686 (Fla. 2d DCA 1974). The record under consideration discloses the existence of unresolved issues of material fact as to whether Raul acted as the shipper in the subject transaction and whether Fast Air received payment in full for carriage of the goods. Finding, therefore, that Fast Air failed to meet its burden and that the trial court erred in entering summary final judgment in favor of Fast Air, we reverse and remand the cause to the trial court for further proceedings.

Reversed and remanded.


text:
    Lazaro CORNEIRO, Petitioner, v. The Honorable Harold SOLOMON, as Judge of the Circuit Court in and for Dade County, Florida, Respondent.
    No. 84-496.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Bennett H. Brummer, Public Defender, and Harold Mendelow, Sp. Asst. Public Defender, for petitioner.

      Janet Reno, State Atty., and Anthony C. Musto, Asst. State Atty., for respondent.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Upon consideration of the petition for writ of prohibition, response thereto, and argument of counsel, we conclude that the trial court’s declaration of mistrial and discharge of the sworn jury without obtaining petitioner’s consent precludes retrial on double jeopardy grounds.

It is well settled that a defendant in a criminal trial is placed in jeopardy when he is “put to trial on an indictment or information sufficient in form and substance to sustain a conviction before a court of .competent jurisdiction and a jury has been sworn and charged with his deliverance.” State v. Iglesias, 374 So.2d 1060, 1062 (Fla. 3d DCA 1979). At this point in a criminal trial, a judge should not declare a mistrial and discharge the jury except in cases of manifest urgency and absolute necessity. State v. Grayson, 90 So.2d 710 (Fla.1956); State v. Collins, 436 So.2d 147 (Fla. 2d DCA 1983). As stated by the Florida Supreme Court in Grayson at 713:

If the jury is discharged for legally insufficient reasons and without an absolute necessity and without the defendant’s consent, such discharge is equivalent to an acquittal and precludes a subsequent trial for the same offense.

The record under consideration fails to disclose the manifest necessity required to justify the mistrial and clearly establishes that the court declared the mistrial without obtaining Corneiro’s consent. Finding, therefore, that a subsequent trial for the same offense would constitute double jeopardy, Grayson, we grant the writ of prohibition.

Writ issued and case remanded with directions to discharge petitioner on the offenses charged in this case.


text:
    BROADBAND ENGINEERING, INC., Appellant, v. QUALITY RF SERVICES, INC., and Fred Rogers, Appellees.
    No. 83-1454.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Schuler & Wilkerson, P.A., and Edna L. Caruso, P.A., West Palm Beach, for appellant.
    Kenneth J. Scherer of Cohen, Scherer & Cohn, P.A., North Palm Beach, for appel-lees.
   PER CURIAM.

The parties to this appeal participated in litigation that produced a three-page, signed document entitled, “Stipulation of Dismissal with Prejudice.” The trial court reviewed the stipulation and then entered an order of dismissal which reflected that the court had reviewed the stipulation together with other documents in the court file and that the action was being “dismissed with prejudice based upon the facts so stipulated to between the parties herein.”

Shortly thereafter, appellant filed a motion for contempt and temporary restraining order which, in essence, asked the court to enforce specified provisions in the stipulation of dismissal. The court declined on the ground that it lacked jurisdiction. We respectfully disagree.

Buckley Towers Condominium, Inc. v. Buchwald, 321 So.2d 628 (Fla. 3d DCA 1975), is directly on point. It holds that “even without an express reservation thereof, jurisdiction inherently remains in the trial court to make such orders as may be necessary to enforce its judgment.” Id. at 629. To adopt appellees’ contention that appellant’s only recourse is to file a second lawsuit would substantially undermine the policy favoring settlements and, indeed, would make a mockery of the legal process. Accordingly, the order on appeal is

REVERSED.

GLICKSTEIN, HURLEY and DELL, JJ., concur.


text:
    Henry KLEIN and Sydelle Klein, his wife, Appellants, v. ADVANCE MORTGAGE CORP., Clarence F. Barry, et al., Appellees.
    No. 83-2172.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Jerome L. Tepps of- Jerome L. Tepps, P.A., Fort Lauderdale, for appellants.
    Judith A. Frankel and Elliot L. Miller, Miami Beach, for appellee Barry.
   PER CURIAM.

Affirmed. We agree with the trial court’s determination that the title delivered pursuant to an execution sale of real property relates back to the date of recor-dation of the judgment upon which the sale was based. See Mansfield v. Johnson, 51 Fla. 239, 40 So. 196 (Fla.1906) and Black v. Miller, 219 So.2d 106 (Fla. 3d DCA 1969). We reject appellants’ claim that the execution deed only relates back to the time of filing of a notice of levy on the judgment.

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


text:
    Walter DANIELS, a/k/a Henry Johnson, Appellant, v. STATE of Florida, Appellee.
    No. 83-2762.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.

      Walter Daniels, a/k/a Henry Johnson, pro se, appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

We affirm the denial of defendant’s motion for post-conviction relief for two reasons. First, the motion contains insufficient facts to warrant an evidentiary hearing. See Knight v. State, 394 So.2d 997 (Fla.1981). Second, although defendant’s “Memorandum of Law,” submitted with the motion for post-conviction relief contains additional, but unsworn, factual allegations, Rule 3.850, Fla.R.Crim.P., requires that the motion contain “[a] brief statement of facts” and that “the motion shall be under oath.” (emphasis supplied). See also Goldstein v. State, 453 So.2d 69 (Fla. 4th DCA 1984). Therefore, the trial court properly disregarded the unsworn supplemental factual allegations in defendant’s accompanying memorandum.

Today’s decision is without prejudice to the defendant’s right to seek post-conviction relief in compliance with Rule 3.850, Fla.R.Crim.P.

Accordingly, the trial court’s decision is

AFFIRMED.

LETTS, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Oscar IZQUIERDO, Appellant, v. VOLKSWAGEN INTERAMERICANA, and United States Fidelity & Guaranty Company, Appellees.
    No. AU-482.
    District Court of Appeal of Florida, First District.
    May 30, 1984.

      Jay M. Levy of Hershoff & Levy, Miami, for appellant.
    Jerry V. Wilkey, Coral Gables, for appel-lees.
   SHIVERS, Judge.

In this workers’ compensation case, claimant, Izquierdo, appeals an order of the deputy commissioner. Appellant contends that the deputy commissioner erred in failing to award temporary partial disability benefits for a specified period of time and in denying wage-loss benefits pursuant to section 440.15(3)(b)3d, Florida Statutes (1979). We affirm.

The order sub judice, although awarding temporary total disability benefits from March 28, 1980, to May 26, 1982, and again from January 10, 1983, through April 20, 1983, is silent as to the interim period which the award creates, i.e., May 26, 1982, to January 10, 1983. Appellant contends that he is entitled to temporary partial disability benefits during this hiatus.

This error or oversight, if it is such, was never pointed out to .the deputy commissioner even though appellant had every opportunity to do so. An order prior to the one sub judice was entered on August 1, 1983. That order also was silent as to the hiatus. Claimant moved for reconsideration of the August 1 order and raised several issues but did not raise this issue. The deputy commissioner granted appellant’s motion for reconsideration, vacated the August 1 order, and entered the order sub judice. At no time did appellant bring this issue to the attention of the deputy commissioner. Therefore, we affirm. Mezquita v. Florida Steel Corp., 419 So.2d 675 (Fla. 1st DCA 1982); Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

We also find that appellant has no standing to challenge the constitutionality of section 440.15(3)(b)3.d., Florida Statutes (1979). The order contains no finding that claimant would be entitled to wage-loss benefits but for the provisions of section 440.15(3)(b)3.d. Acosta v. Kraco, Inc., 426 So.2d 1120 (Fla. 1st DCA 1983); Jack Eckerd Corp. v. Coker, 411 So.2d 1026 (Fla. 1st DCA 1982).

AFFIRMED.

MILLS and WIGGINTON, JJ., concur.


text:
    James K. HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2014.
    District Court of Appeal of Florida, Second District.
    June 1, 1984.

      Jerry Hill, Public Defender and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

James K. Hudson appeals his conviction and sentence for burglary of a dwelling. After careful consideration of the various issues raised in this appeal, we conclude that the only point which requires comment concerns sentencing.

Following his conviction by a jury, Hudson was sentenced to two years imprisonment as a youthful offender, followed by four years community control, with credit for 46 days served. Sections 958.05 and 958.10, Florida Statutes (1983), provide that a youthful offender shall not be sentenced to a period of more than two years in a community control program. As the trial court exceeded the two-year limit on placement in a community control program, we must reverse that portion of the sentence and remand for imposition of a sentence conforming to the statutory provisions.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    David JONES, Appellant, v. STATE of Florida, Appellee.
    No. 83-2332.
    District Court of Appeal of Florida, Second District.
    June 1, 1984.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The defendant appeals an order continuing his involuntary commitment in the mental health institution to which he was confined after he was found not guilty by reason of insanity on several 1981 criminal charges.

The trial court did not err in its decision that defendant’s proposed plan for conditional release did not meet the criteria of section 916.17, Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.219. See Hill v. State, 358 So.2d 190, 205, 206 n. 30, 208 (Fla. 1st DCA 1978).

AFFIRMED.

RYDER, A.C.J., SCHOONOVER and LE-HAN, JJ., concur.


text:
    Harrison JONES, Appellant, v. STATE of Florida, Appellee.
    No. 83-2496.
    District Court of Appeal of Florida, Second District.
    June 1, 1984.
    James R. Kennedy, Jr., St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, Harrison Jones, seeks review of the denial of his motion for discharge pursuant to Florida Rule of Criminal Procedure 3.191, regarding a charge of possession of cocaine filed on August 4, 1983.

.On February 11, 1983, appellant’s house was searched pursuant to a search warrant for controlled substances. Appellant was arrested at the scene for possession of marijuana which was found during the search. He was charged with that offense on March 18, 1983, to which he subsequently pled nolo contendere. Another substance was seized which, by later tests, proved to be cocaine. He was arrested on that offense on August 8, 1983, after being charged by information on August 3, 1983, upon receipt by the state of lab reports verifying that the substance was cocaine.

Appellant concedes that the arresting officers had no probable cause to arrest him for the possession of the cocaine on February 11, 1983, because at the time the substance was seized, they did not have knowledge that it was cocaine. However, appellant argues that because appellant was arrested for the marijuana, which was seized at the same time as the substance which later proved to be cocaine, prosecution should be barred because he was not brought to trial within 180 days of February 11, 1983.

Appellant relies on Crain v. State, 302 So.2d 433 (Fla. 2d DCA 1974), to argue that even though he was not arrested for cocaine at the time, he still should have been brought to trial on that charge within 180 days of his arrest for the marijuana charge. Appellant grounds his argument on the fact that both charges arose because of items seized during the same search. We affirm on the authority of State v. Lynch, 445 So.2d 687 (Fla. 2d DCA 1984). The 180-day speedy trial period does not begin to run until appellant was arrested or taken into custody for the offense for which he is sought to be tried. Merely because there was probable cause to arrest on one possessory offense does not require application of the speedy trial rule for all possessory offenses which may have coincided in time, but for which probable cause to arrest did not exist. In State v. Hoesley, 427 So.2d 1077 (Fla. 2d DCA 1983), we have previously distinguished Crain and State v. Kelly, 407 So.2d 257 (Fla. 2d DCA 1981).

Appellant also relies on State ex rel. Canup v. Langston, 341 So.2d 1069 (Fla. 2d DCA 1977), to argue that the state had an obligation to expedite the lab reports so as to bring him to trial within 180 days of his first arrest. Langston deals with the duty of the state to expedite reports after a defendant has been arrested and charged and is inapplicable where no probable cause to arrest existed.

Affirmed.

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


text:
    James ROME, Appellant, v. STATE of Florida, Appellee.
    No. 83-1082.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Taylor v. State, 444 So.2d 931 (Fla.1983).

LETTS, BERANEK and HERSEY, JJ., concur.


author: ANSTEAD, Chief Judge. LETTS, Judge,

text:
    Ralph Z. NAVA, Appellant, v. STATE of Florida, Appellee.
    No. 82-1685.
    District Court of Appeal, of Florida, Fourth District.
    May 30, 1984.

      Laura R. Morrison, Fort Lauderdale (withdrawn as counsel after filing brief), for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Chief Judge.

This is an appeal from convictions and sentences for two charges of sexual battery. At issue is the correctness of the trial court’s decision that the appellant would not be allowed to present the testimony of a witness whose identity was not disclosed to the state prior to trial in violation of the mutual discovery rules. Although we would ordinarily give strict scrutiny to a trial court’s decision to preclude evidence offered by a defendant in a criminal prosecution, we affirm the court’s decision here because of appellant’s failure to proffer or otherwise sufficiently make a record of the excluded evidence.

Initially, upon being informed of the situation, the trial court ruled that the witness would be allowed to testify if she promptly appeared for questioning before the prosecuting attorney. However, after she failed to appear at the agreed time, the trial court refused to allow her to be called'by appellant. The trial court did not bar the testimony of a second witness whose identity had similarly not been properly disclosed because that witness did promptly appear for questioning pursuant to the trial court’s ruling concerning both witnesses. The appellant made no attempt to proffer the excluded witness’ testimony in support of his claim on appeal that he was prejudiced by the exclusion and the record does not otherwise disclose what her testimony would have been.

The appellant now claims the trial court erred by failing to follow the procedures mandated by the Richardson rule and by imposing the severe sanction of exclusion. In Richardson, the Supreme Court held that the admission of evidence not previously disclosed to the defendant by the state pursuant to the rules of discovery, would require an appellate court to reverse a conviction unless the trial court made an adequate inquiry into all the circumstances surrounding the rules’ violation, with the state having the burden of showing to the trial court the lack of procedural prejudice to the defendant by reason of the violation. See also Cumbie v. State, 345 So.2d 1061 (Fla.1977); Brey v. State, 382 So.2d 395 (Fla. 4th DCA 1980).

The Richardson rule has also been applied by the Florida Supreme Court to defense discovery violations. Bradford v. State, 278 So.2d 624 (Fla.1973). In Bradford a judgment of conviction was reversed after the trial court refused to allow the testimony of two defense witnesses whose identities had not been properly disclosed to the state prior to trial. The Bradford opinion does not reflect the nature of the evidence to be offered by the witnesses or whether a proffer of their testimony was made. However, Bradford relied for authority on the decision in Wilson v. State, 220 So.2d 426 (Fla. 3d DCA 1969), wherein it was held to be reversible error to exclude a defense witness because of a defendant’s right to present evidence in his defense, and because the error in failing to disclose the witness was made by state furnished defense counsel. A proffer of the excluded witness’ testimony was made in Wilson and that proffer indicated that the “witness’ testimony was contradictory to the testimony of the chief witness for the state ....” Id. at 427.

We applied the Richardson rule to a discovery violation by the defense in Patterson v. State, 419 So.2d 1120 (Fla. 4th DCA 1982). In Patterson, the court ex-eluded the testimony of a defense witness. However, a proffer of that testimony was made so that we were in a position to assess not only the procedural fairness of allowing the defense to call an undisclosed witness, but also the substantive prejudice that might be suffered by the defendant by exclusion of the witness. In fact, as noted in the opinion, the likelihood of substantive prejudice was a major concern to us in concluding that the trial court had erred. We held that the trial court erred by imposing the severe sanction of exclusion of important evidence when weighed against the relatively insubstantial procedural prejudice suffered by the prosecution. We restated that

[t]he primary purpose of t[he] inquiry is to ferret out procedural prejudice occasioned by discovery violations. Smith v. State, 372 So.2d 86, 88 (Fla.1979). Thus, the trial judge must decide whether the violation hindered or prevented the aggrieved party from properly preparing for trial and may impose a remedy only if a finding of such prejudice is made.... If the trial court finds procedural prejudice, it can tailor a just remedial order, but “[rjelevant evidence should not be excluded from the jury unless no other remedy suffices.”

Patterson v. State, 419 So.2d at 1123.

To a point, we are now faced with the same situation that was involved in Patterson, Wilson and Bradford. Below, appellant argued that the state was not inconvenienced as it was allegedly made aware of the two defense witnesses through an alleged prior oral agreement. Appellant further claimed that he would be prejudiced by the exclusion, as he viewed the excluded witness’ testimony as a necessary predicate for the testimony of that of the second witness. However, the state did not agree with counsel’s allegations of a prior oral disclosure, and appellant made no proffer of what the testimony would be, and, in fact, did not even call the other witness.

There is a long-standing rule in Florida that requires the party against whom a ruling of exclusion has been made, to make a proffer of the proposed testimony so that the trial and the appellate courts may be able to evaluate its weight, relevancy and competency in determining the effect of its exclusion. See § 90.104(1)(b), Fla.Stat. (1983); Ketrow v. State, 414 So.2d 298 (Fla. 2d DCA 1982); Green v. Hood, 120 So.2d 223 (Fla. 2d DCA 1960). The basis of the rule is that appellate review of the exclusion of evidence that has not been proffered on the record would require improper speculation as to what the excluded witness would have said as well as what effect, if any, it would have had on the proceedings. This point was effectively expressed by Justice Adkins in a recent supreme court decision rejecting a claim of error in the exclusion of evidence at the sentencing phase of trial in a capital case:

There was no proffer of the attempted testimony after the trial judge excluded it. The purpose of a proffer is to put into the record testimony which is excluded from the jury so that an appellate court can consider the admissibility of the excluded testimony. Reversible error cannot be predicated on conjecture.

Jacobs v. Wainwright, 450 So.2d 200 (Fla.1984). Applying this rule here, it would appear logical, where it is the defendant who has committed the discovery violation, to place some burden upon him, a burden similar to that placed upon the state under Richardson, to demonstrate not only a lack of substantial procedural prejudice to the state, but also of demonstrating the prejudice he would suffer by exclusion of the witness who would allegedly testify in his favor. Of course, he can hardly demonstrate such prejudice if he fails to disclose on the record the nature of the evidence to be presented by the witness. We must concede that it is difficult for us to reconcile the two relevant, but apparently conflicting, lines of authority and the considerations underlying them: the one mandating the need for an adequate record upon which to properly review the exclusion of evidence, and the second mandating a court inquiry into the complete circumstances of a discovery violation, including the nature of the evidence being offered, before a witness’ testimony may be excluded. We realize there are other factors to be considered and that our decision will appear to conflict with established law no matter which way we go.

However, considering the burden of establishing the lack of prejudice that is placed on the state under Richardson, and the obvious necessity under that burden to disclose the nature of the e/idence being offered, we believe the better rule to be, and we so hold, that a defendant who fails to proffer or otherwise establish on the record the nature of the testimony of a witness, whose identity has not properly been disclosed to the state, is foreclosed from asserting the exclusion of such witness’ testimony as error on appeal. We have also considered the fact that our adversary system of justice is substantially predicated on the responsibility of the parties to object or otherwise alert the trial court when error is claimed and to establish the basis of that error on the record. We, thus, reject the claim of error here.

Nevertheless, in order to grant the appellant an opportunity for further definitive review, and cognizant of our responsibility to follow the law as established by the Supreme Court in the two lines of authority discussed above, we certify the following question as one of great public importance:

Is a defendant required to make a proffer of the testimony of a witness whose testimony is excluded by the trial court by reason of the defendant’s failure to disclose the existence of the witness pursuant to the reciprocal rules of discovery prior to trial, before such exclusion may be asserted as reversible error on appeal?

In accordance with the above, the judgment of conviction is hereby affirmed.

AFFIRMED.

HERSEY, J., concurs.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

concurring specially.

I concur specially only to comment that a close reading of Richardson reveals that the opinion repeatedly restricts its holding to the transgressions of prosecuting attorneys and nowhere is the question of discovery violations by defendants addressed.

However, I certainly concede the Richardson holding has been expanded to discovery violations by the defense.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Larry GABRIEL, James Turner and Freddie Williams.
    No. 83-KA-0749.
    Supreme Court of Louisiana.
    April 2, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Campbell, Tim McElroy, Linda Bizzaro, Clifford R. Strider, Asst. Dist. Attys., for plaintiff-appel-lee.
    Robert Glass, John Reed, Glass & Reed, New Orleans, for Larry Gabriel.
    Mark McTernan, New Orleans, for James Turner.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for Freddie Williams.
   CALOGERO, Justice.

Defendants Larry Gabriel, James Turner and Freddie Williams pleaded not guilty to two counts of armed robbery and one count of attempted first-degree murder, in violation of La.R.S. 14:64, R.S. 14:27 and 14:30. A twelve person jury found each defendant guilty of two counts of armed robbery, but acquitted all three on the attempted murder charge. Subsequently, Gabriel was adjudged a third felony offender and sentenced to ninety-nine (99) years on each count, concurrent, with credit for time served; Williams was adjudged a fourth felony offender and sentenced to ninety-nine (99) years on each count, concurrent, with credit for time served; and Turner was sentenced to fifty (50) years on each count, concurrent, with credit for time served. They now appeal, Gabriel raising three assignments of error, Turner raising sixteen assignments and Williams adopting the assignments and briefs of his co-appellants.

We find two of defendant Gabriel’s assignments of error meritorious, reverse his conviction and remand his case to the district court for new trial. We treat the two meritorious assignments in the main text of this opinion. Gabriel’s third assignment of error and all of the assignments of defendants Turner and Williams are governed by clearly established principles of law and will be discussed in an appendix to this opinion which will not be published in the Southern Reporter.

The following was adduced at trial. At about 12:30 p.m. on the afternoon of May 14, 1981, two masked men entered the Pelican Homestead at 5301 Elysian Fields Avenue in New Orleans. At least one of the men was armed with a hand gun.

The men ordered everyone down on the floor and instructed a teller, Tamara Popp, to empty the cash drawers into a white plastic bag. Ms. Popp followed instructions, making sure that the plastic bag contained some of the specially marked bait money kept for such circumstances. While this was being done, one of the robbers demanded a set of keys from Andrew Patton. The customer complied and handed over his truck keys. Taking the keys and the bag containing the money, the robbers fled through the rear door of the building. Once outside they encountered Ewell Kil-burn, a customer who had just pulled up to the drive-in window. Forcing Kilburn out of his car at gun point, the men got into his car and pulled out into traffic on Elysian Fields Avenue. Kilburn’s car, a blue and white 1979 Oldsmobile Cutlass, ran well but its diesel engine smoked a lot.

At the same time, approximately 12:41 p.m., Officer Louis Adams of the New Orleans Police Department was on Elysian Fields near Filmore Avenue, proceeding in a lakebound direction. Adams, in uniform but driving an unmarked vehicle, noticed a late model blue and white Oldsmobile pull out of Pelican Homestead’s parking lot. His attention was drawn to the car because of the “large amount of black smoke com[ing] out of the exhaust.” Officer Adams testified

Well, the car continued smoking, and it pulled up in front of me approximately two car lengths in front of me and it pulled over to my left.
I observed three black males in the car. Two black males were in the front seat, and one black male was in the back seat. And, they appeared to be laughing and kind of joking about something that was very humorous because the driver looked back at me when he pulled into my lane, and he was laughing. It kind of drew my curiosity why he c^me out of the parking lot and sped down Elysian Fields so fast.

As Adams followed behind the car, he radioed the police dispatcher and was advised of an armed robbery in progress at Filmore and Elysian Fields (i.e., the location of Pelican Homestead). Adams reported that he was following a car which had just left that location and requested backup assistance. At this point, the Oldsmobile began picking up speed.

As Adams followed, driving at times to within six feet of the vehicle he observed the driver lift a long-barrel pistol into the air and hand it to the man in the back seat. Taking the gun, the man in the back seat turned to face the officer, leaned out of the window and fired at Adams.

After an eight minute chase, the car turned into Rayne, a dead-end street near the London Avenue Canal and another shot (the fourth) rang out. Adams watched as the three jumped from the car, and fled into a nearby wooded area.

After taking the keys from the Oldsmobile’s ignition, Officer Adams followed the suspects and caught a glimpse of two of the men, moving together, holding “something white” between them. He lost sight of the men but continuing through the woods, Adams came across a ski mask and a bag of money (later confiscated by a crime scene detail). In the meantime, Officers Leroy DeFrisco and Walter Averett drove to the area in response to the armed robbery and “officer needs assistance” calls. DeFrisco and Averett spotted two black males on the street who were “sweating, and ... appeared to have been running.” One of the men, later identified as James Turner, was carrying something white and kept looking back over his shoulder. The other man, Freddie Williams, took off “almost in a run” when he saw the policemen. DeFrisco left the car, and, armed with a shotgun, ordered Turner to halt; Williams was stopped by Officer Averett. Confronted by the armed policemen, Turner threw down the plastic bag and said “It doesn’t belong to me.”

Besides the bag which contained about $8,000, Turner was also found in possession of a stocking and a yellow Playtex rubber glove, left hand. From Williams, Officer Averett seized a set of keys. A more thorough search of Williams a short time later uncovered, stuffed into Williams’ sock, a single yellow Playtex rubber glove, right hand, with the trigger finger cut out.

Not far away, an off-duty reserve police officer in civilian clothes, Mike Golden, also heard the calls and drove his unmarked van into position to cut off a possible escape route into the St. Bernard Project.

Shortly, Golden spotted a black male (later identified as Gabriel) running down the street allegedly in his direction. Golden testified that Gabriel would run until the sounds of police sirens neared the area; then he would slow down to a walk. As the sirens faded, Gabriel would begin running again. When Gabriel got to within twenty feet of Golden’s van, Golden placed Gabriel under arrest.

Following their arrests, Gabriel, Turner and Williams were transported back to Pelican Homestead where the three were placed in a line-up. Subsequently, Gabriel, Turner and Williams were- charged with armed robbery of Tamara Popp (money from the homestead) and Ewell Kilburn (Oldsmobile) and the attempted first degree murder of Officer Adams.

At trial, the state was able to show that the money seized pursuant to the arrest of Williams and Turner contained some of the bait money taken during the robbery. Witnesses identified the recovered ski mask, plastic bag, gun, and various items of clothing, as similar to those used by the robbers.

At trial, Gabriel introduced an alibi defense. Neither Turner nor Williams produced any evidence and none of the defendants testified in their own behalf.

As will be discussed more fully hereinafter, the identification testimony presented by two state witnesses, Darlene Fre-dricks and Officer Louis Adams, was the strongest evidence to link Gabriel with either the two defendants, the escape vehicle, or the Pelican Homestead robbery.

Gabriel’s Assignments of Error Nos. 1 and 2

The first assignment of error filed by defendant Gabriel, which we find to have merit, involves defense counsel’s attempt to introduce two pages of the preliminary examination testimony of state witness Darlene Fredricks, at which preliminary ex-animation she had failed to identify defendant Gabriel as one of the robbers. The second assignment of error of defendant Gabriel which we find meritorious involves the failure of the trial court to allow his defense counsel access to the relevant portions of an official police report of the incident, a report which allegedly recited that Officer Adams, the officer participating in the chase of the automobile from Pelican Homestead to the point of its abandonment had on the day of the robbery identified Gabriel as the driver of the car.

For the reasons which follow, we find these two assignments of error meritorious relative to the defendant Larry Gabriel.

Defendant Gabriel was the only defendant of the three who put on a defense. That defense primarily was one of alibi wherein he denied being at the scene of the robbery and denied being the driver of the getaway car.

Unlike the evidence against Turner and Williams, there was no physical evidence linking Gabriel either with the other two defendants or with the Pelican Homestead robbery itself. Gabriel was arrested completely independently of Turner and Williams, at a location several blocks away from the scene of the Turner and Williams arrest, and away from the wooded area into which Officer Adams saw the occupants of the car flee.

The evidence the state presented against Gabriel consisted of the following:

(1) The reserve police officer who arrested Gabriel testified that Gabriel was alternately walking and running on St. Denis Street in a direction away from the wooded area towards Paris Avenue, was sweating and had grass in his hair. This testimony, however, was contradicted by that of an eyewitness resident of St. Denis St. The eye witness to the arrest testified for the defense that Gabriel was leisurely walking from the opposite direction (coming from Paris Avenue heading towards the wooded area) said hello in passing, to a man sitting on a porch. Suddenly she saw a man in a white van (the reserve officer) stop, jump out and subdue Gabriel in such a forceful manner that the eye witnesses thought Gabriel himself was a victim of a robbery until such time as uniformed police officers arrived and took Gabriel away.
(2) There was evidence that the truck Gabriel drove for his job was found parked a block away from the robbery site. Gabriel’s counsel, however, elicited testimony at trial that the truck had been stolen before the time of the robbery. A defense witness testified that Gabriel had stopped briefly around the noon hour the day of the robbery at a bar where neighborhood friends gather, and upon leaving had returned abruptly, stating that his company truck had been stolen. Another acquaintance had seen Gabriel shortly thereafter, walking in a direction consistent with his having been seen later on St. Denis Street heading towards the wooded area (not away from it as the arresting officer testified). Upon inquiry, Gabriel had told this acquaintance that his company truck had been stolen and that he was looking for it. With the testimony of these two witnesses, Gabriel’s defense counsel sought to establish that the truck had been stolen before the Pelican Homestead robbery and that at the time of the robbery, Gabriel, on foot, was several miles away from the Homestead.
(3) Beyond the circumstances of Gabriel’s arrest and the discovery of the truck, the evidence against Gabriel was identification testimony. Five witnesses gave such testimony, much of which centered on his having been arrested wearing light brown, khaki pants. One of the robbers of Pelican Homestead had worn light brown, khaki trousers.

Anita Poche could not identify Gabriel by face, but indicated in her testimony that Gabriel fit the general appearance of one of the robbers, and the khaki pants worn by one of the robbers was similar to those Gabriel was wearing when he was arrested.

Ewell Kilburn, owner of the Oldsmobile in which the three robbers attempted to escape, testified initially at trial that when the defendants were returned to Pelican Homestead he recognized the trio as those who had forced him out of his car. On cross examination, it was established however that Williams was the only one Kil-burn was clearly able to identify since Williams was the one who had held the gun. Moreover, Kilburn admitted that he had not positively identified Gabriel the day of the robbery and he could not identify Gabriel (nor for that matter, the other defendants) the day of trial.

Another customer at Pelican Homestead, Eudell Bundy, identified Gabriel only to the point that Gabriel’s khaki pants were similar to those worn by one of the robbers. However, Bundy also testified that the robber wore hightop shoes with cleats on the bottom. Gabriel’s wife testified for the defense at trial that Gabriel did not own and had not owned hightop shoes with cleats.

Additional defense witnesses controverting the Pelican Homestead identifications included two residents of the area in which Turner and Williams were arrested. These two separately related seeing, before Turner and Williams were arrested, a third man, of description different from Gabriel’s, run away in a direction different from that in which Gabriel was proceeding at the time Golden arrested him.

The most persuasive identification testimony then was that of Darlene Fredricks and Officer Louis Adams.

Darlene Fredricks, manager of Pelican Homestead at the time of the offense, only saw two of the robbers. On direct examination at trial, Fredricks testified that the two she had identified the day of the robbery were Gabriel and Turner. At the preliminary examination attended only by Turner and Gabriel, however, she had been able to identify only Turner as one of the robbers, and had expressly stated that she could not identify Gabriel.

Both state and defense have the right to impeach the testimony and credibility of every witness sworn on behalf of the other side. La.R.S. 15:486; La.R.S. 15:493. Thus proof of a prior contradictory statement made at a preliminary hearing may be used to impeach a witness at trial. State v. Prestridge, 399 So.2d 564 at 574 (La.1981).

On cross examination at trial, Gabriel’s defense counsel tried to undercut the reliability of Fredricks’ identification by questioning Fredricks about her preliminary examination testimony, and then later by introducing into evidence that portion of the transcript of that proceeding wherein she was unable to identify Gabriel. In order to support the defense contention that Fre-dricks had not identified Gabriel the day of the incident but had identified Turner and Williams, it was critical for the jury not only to hear but also to understand that at the preliminary examination, with Gabriel present and Williams not present in the courtroom, Fredricks had identified only Turner. Counsel for the defendant repeatedly and variously confronted Fre-dricks with her prior inconsistent statement, but was unable to have Fredricks admit unequivocably from the stand to the jury that she had not identified Gabriel at the preliminary hearing.

When a witness fails distinctly to admit his or her prior inconsistent statement, the proof of that statement is admissible. La. R.S. 15:493; State v. Bonanno, 373 So.2d 1284 at 1291 (La.1979); State v. Rudolph, 332 So.2d 806 at 813 (La.1976). Unless the inconsistency is introduced and proven, some or all members of the jury may be misled by the witness into believing either that there was no inconsistency or that the inconsistency was simply a lawyer’s manipulating the witness’ testimony to his client’s advantage.

Furthermore, defense counsel’s attempt to highlight the inconsistencies in Fre-dricks’ testimony for the jury was spotted with objections, interjections and interruptions by the district attorney, all of which taken together could well have led the jury to infer that the witness had not in fact testified contradictorily on the earlier occasion.

Additionally at the time that defense counsel sought to have the two pages of the transcribed preliminary examination testimony exhibited to the jury, the state objected that the defense was trying to admit the testimony in part, and was tak-tag the testimony out of context. The state’s objection hinted to the jury that perhaps Fredricks had not made an inconsistent statement or inconsistent identification and that the two pages that the defense sought to admit would in some way inaccurately reflect what she had indeed related at the preliminary hearing. When the court refused to admit the transcript, not only was the jury denied the benefit of that transcript, which would clearly have shown an inconsistency, but also the jury was again given the impression that perhaps there was no inconsistency and that the defense was unfairly taking out of context minor aspects of the witness’ prior testimony.

The trial court’s error in not admitting the transcript of the witness’ earlier testimony would not necessarily constitute reversible error, however. In State v. Gomez, 365 So.2d 1313 at 1316 (La.1978), a prosecution for manslaughter, this Court found error in the trial court’s failure to admit evidence of a witness’ prior inconsistencies, but found no reversible error where “the jury was fully informed of the nature and content of this prior contradictory statement.” In State v. Lewis, 354 So.2d 566 at 568 (La.1978), a prosecution for distribution of heroin, this Court found no reversible error where defendants sought to impeach a witness police officer but where “... the jury was fully informed ... of the officer’s prior inconsistent testimony.”

In each of these cases, a majority of this Court found the error harmless because the substance of the prior inconsistent statement was effectively placed before the jury in other ways {Gomez) and because the impeachment concerned an issue which was peripheral to the case {Lewis). Neither conclusion is warranted here.

In this case, insofar as defendant Gabriel is concerned, the trial court erroneously refused to admit the two pertinent pages of Fredricks’ preliminary examination testimony, and thus prevented Gabriel’s defense from establishing the inconsistency and the consequent unreliability of Fredricks’ trial identification that Gabriel as one of the robbers of Pelican Homestead. We find that the jury was not presented a clear and concise picture of the full extent of Fre-dricks’ contradictory identification testimony at the preliminary examination. The inconsistency of Fredricks’ statement was disputed to the very end, with the state continuing to assert that the inconsistency was all a matter of a misinterpretation of the transcript. Secondly, the issue of the identification, or not, of Gabriel as one of the robbers, went to the heart of the case. All of the other evidence linking him either to the other defendants or to the robbery itself with the exception perhaps of Adams’ testimony (see next discussion) was weak by comparison with the Fredricks' identification. The failure of the trial court to allow the defendant to present to the jury a copy of the transcript containing Fredricks’ prior inconsistent statement notwithstanding the defendant’s right to impeach witnesses against him (La.R.S. 15:486 and 493) was substantially prejudicial to Gabriel’s case. La.C.Cr.P. art. 921.

The prejudicial effect of this single error in denying defense counsel’s request that the contradictory portions of the Fredricks’ testimony at the preliminary examination be presented to the jury before they deliberated, is compounded by the second trial error which relates to the testimony of Officer Adams.

Officer Adams’ testimony against Gabriel was probably even more damaging to Gabriel than the testimony of Fredricks and of all of the other state witnesses combined. Whereas all of the other witnesses were unable to view the faces of the robbers because each was wearing a mask, Officer Adams, the off duty policeman who gave chase to the car exiting the homestead parking lot, testified unequivocally that he got full face glimpses, with masks removed, of two of the robbers.

During direct examination, Officer Adams recounted for the jury the details of his chase and positively identified Williams as the gunman who fired at him from the car, and Gabriel, as the driver. Furthermore, Officer Adams testified that he had confronted the three defendants at police headquarters after their arrest and on his way to turn in his notes to reporting Officer Steinkamp. The fact of this inadvertent confrontation between Adams and the three defendants had not been made known before Adams’ testimony at trial.

Adams’ headquarters confrontation’s having previously gone unreported to either the state or the defense (until trial) prompted a plausible suspicion, according to the defendant, that Adams’ identification testimony was less than fully credible. Gabriel’s counsel examined Adams on this point and Adams testified that the official police report in this matter, which he claimed to have read prior to his testimony, noted that on the very day of the crime Adams had told Steinkamp that Gabriel was the escape vehicle driver. Adams stated that he had reviewed the official police report of the incident (prepared by Stein-kamp) prior to his appearance in court and that the report

describes me saying that Larry Gabriel was driving the car — was the driver of the vehicle and he handed the gun to Mr. Williams who was the the back seat of the ear who shot at me.
And, does it say that that information was given to the officers upon your confrontation with the three arrested individuals at the Major Offense Bureau?
No, sir, it does not.
Does it say in that report where it was that you got the ability to identify by name any of the three defendants as participating in any role in that chase? Sir, I identified them by name just now. I had identified them by face.
Are you saying then that in this report— the official report of the New Orleans Police Department there is the information recorded that on May 14th at the Detective Bureau you identified the driver and the person in the back seat by face?
That is correct. And, the detective put the face to the name. I didn’t.

Following an objection and a conference at the bench, the judge ordered counsel and the witness into chambers. Defense counsel requested that the prosecutor review the police report to determine whether the officer was telling the truth about its contents. The prosecutor complied, reviewed the report and stated

The police report is written in such a way that Officer Adams’ testimony is described by Steinkamp, — ‘He pulled out and saw three people in the car.’ He described Adams’ actions in detail, and he said what each person did by name in his report.
Those names are in the record. Now, when he says — when he uses the words — he says that Adams identified Williams as the man — as the shooter in the back seat. And, Adams says that Gabriel was the driver. There is no mention of any identification procedure in the report, Your Honor.

The prosecutor here seemed to be saying inferentially rather than expressly, after she alone had examined the report, that the police report supported Adams’ testimony just previously given in court. In any event counsel for Gabriel then requested that the court inspect the police report to ascertain the validity of Adams’ sworn testimony that the police report had Adams asserting on the day of the robbery that Gabriel was the driver of the escape vehicle. If the police report did not so verify Adams’ assertion, the defense wanted to be allowed to use that portion of the police report concerning the information Adams reported to Officer Steinkamp to impeach Adams’ testimony as to the identification of the people he chased in the car on May 14, 1981. It is worth noting that defense counsel was not asking to inspect the contents of the entire police report in this matter. Counsel only requested that he be allowed to establish in some way the fact that the police report did or did not contain the information to which Adams had testified. Counsel suggested that it might be sufficient to allow the witness to read the report and specify for the jury, if he could, the place where that information was contained. Further discussion led to the court’s decision to review the report itself.

At no time was defense counsel permitted to inspect the police report. The requested inspection was conducted in camera by the trial judge. Gabriel’s counsel asked:

For the record, is there anything in the report, Your Honor, that says that Officer Louis Adams told Detective Stein-kamp that he identified Gabriel as the driver and Williams in the back seat of the car? I think at least I ought to get the record to cross examine this man on because on the witness stand he said that he had reviewed the report — Steinkamp’s report, and that in this report was the information that he had identified these people and called them by name.

The prosecutor interjected:

Your Honor, the report is written as a narrative, and it reads as a narrative. It says that Officer Adams pulled out of a driveway, and it details the escape — the trail. And, it says that the subject Williams fired at the detective — Officer Adams. And, it says that Gabriel was the driver of the car and the direction in which they were driving. You can’t write a report without naming people.

The trial court inspected the report and, without giving reasons, refused to order the disclosure of the police report to or its use in any way by defense counsel. The defendant was thus unable to bring to the attention of the jury the fact that the police report did not contain the information that Officer Adams had sworn under oath was contained therein, a report which Officer Adams had testified that he had read in preparation for trial testimony that very morning. Counsel for Gabriel then moved to have a copy of the report sealed for review on appeal and all defendants moved for a mistrial. The motion was denied.

Back in open court, the cross-examination of Adams continued. Counsel moved for production of the report in order to enable defense to impeach the witness. The trial court denied the motion, to which error was assigned.

Our review of the police report, a copy of which was placed under seal, does not support Adams’ assertion at trial that the report “describes me as saying that Larry Gabriel was driving .... and he handed the gun to Mr. Williams who was in the back seat ... who shot at me.” The report, in fact, says nothing of the sort. It indicates that Adams was interviewed by Detectives Steinkamp, Davis and Pellegrin. There follows a narrative account of Adams’ following the car from the homestead, the car chase, the shootings, and later, the abandonment of the car and the flight of the suspects. Throughout the account, the men in the car are described as “three negro male occupants,” and are not otherwise identified.

The police report does not support Officer Adams’ trial testimony. Moreover the prosecutor’s account of what the police report contains cannot be reconciled with the copy of the document which is before the Court. Adams' account of the incident did not name people. Nor does it say that Adams had reported to Officer Steinkamp that he recognized two of the three defendants that were arrested in connection with this case. The report speaks only of “three negro male occupants.” What’s more, there are no identifying descriptions in the report, nor is there any indication that the three occupants of the vehicle chased by Adams were those eventually identified as Gabriel, Williams and/or Turner.

Police reports are considered confidential and generally the state may not be compelled to produce them for inspection. State v. Tauzier, 397 So.2d 494 at 502 (La.1981); State v. Franks, 363 So.2d 518 at 520 (La.1978). A defendant may obtain a copy of a police report upon a “showing ... that one or more of the material statements therein are contrary to the sworn testimony,” State v. Adams, 302 So.2d 599 at 604 (La.1974). Where a defendant can show a police report to be inconsistent with a witness’ testimony, the police report will be disclosed for the purpose of establishing that inconsistency. State v. Foret 315 So.2d 278 (La.1975); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); State v. Nails, 255 La. 1070, 234 So.2d 184 (1970); Compare State v. Babin, 319 So.2d 367 (La.1975).

The trial court’s ruling in the case of defendant Gabriel was erroneous. In the cross examination of Adams, defendant was improperly denied his right to use the police report to contradict Adams’ trial testimony that the report confirmed his having identified Gabriel, to Steinkamp, on the day of the robbery.

In summary, Larry Gabriel was the only one of the three defendants to present an alibi defense, contending he was not at the location of the robbery at the time of the robbery. Larry Gabriel’s conviction rested for the most part on the identification testimony of lay witness Fredricks and Officer Adams. Evidence with the potential for seriously undermining the credibility of the identification testimony of these two crucial witnesses was improperly excluded. Larry Gabriel’s ability to present his defense fully was substantially prejudiced by the trial court’s ruling that denied the jury access to two pages of Fredricks’ preliminary examination testimony and denied Gabriel’s defense counsel access to that portion of the police report containing Officer Adams’ account of the incident.

Accordingly Larry Gabriel’s conviction and sentence are set aside and his case remanded for a new trial.

Decree

For the foregoing reasons, the conviction and sentence of Larry Gabriel is reversed, and his case is remanded to the district court for a new trial. The convictions and sentences of James Turner and Freddie Williams are affirmed.

AFFIRMED IN PART: REVERSED IN PART AND REMANDED.

      . The specific guilty verdicts for each armed robbery for each of the defendants were Gabriel, 10-2, Williams, 11-1, Turner, 12-0.

      . There is some conflict in the testimony regarding how many men entered the homestead. Of the six employees and customers on the ground floor, two testified that there were two (2) men involved in the robbery; four others stated that there were three (3) involved. A seventh witness stated three (3) men forced him out of his car; the eighth witness, who watched the robbery on the homestead's video cameras from the second floor, stated that three (3) left the building after the hold-up.

      .Most witnesses agreed that only one of the robbers was armed, but the gun was described both as a "snub-nosed” and as a “long-barrel” hand gun.

      . The record contains a stipulation, as to the time the following communications were made over the police radio:
      12:52:24 p.m. inquiry re: any disturbance in area
      12:54:23 p.m. suspects abandon car and flee on foot on Rayne'
      12:59:32 p.m. two suspects arrested
      13:02:44 p.m. one suspect arrested
      13:06:57 p.m. weapon recovered.

      . Defendants Turner and Williams joined Larry Gabriel in complaining of trial error in these two matters. (Assignments of Error 9B and 10, Turner and Williams) As will be discussed hereinafter in the opinion, the merit of these assignments, insofar as defendant Gabriel is concerned, rests on his presentation of an alibi defense at trial and on there being little else except the identification evidence to link him either to the escape vehicle, to the other two defendants or to the robbery itself. Such is not the case with either Turner or Williams. See note 9, infra.

      . Apart from the identification testimony, there is ample evidence to link Turner and Williams both to each other and to the robbery itself. Turner and Williams were arrested together in each other's company clearly exiting the woods into which the alleged robbers had fled after abandoning the car. From Turner and Williams were recovered a plastic bag containing bait money from the homestead and the set of car keys taken from one of the victims of the Pelican Homestead robbery. Also Williams and Turner were respectively and individually in possession of the right and left hand of a matching pair of rubber gloves used in the robbery.

      . Defense counsel for Gabriel tried unsuccessfully to have the police report of the incident introduced at this point to confirm or deny whether Golden reported these details to Officer Skeinkamp on the day in question.

      . This gentleman and potential witness has since died.

      . It is worth noting, however, that even the manager Darlene Fredricks admitted at trial that her identification of Gabriel was based on the light brown, khaki slacks that he was wearing when arrested. She further admitted at trial that the shirt Gabriel was wearing at the time of his arrest was clearly not the shirt worn by the man wearing the light brown, khaki slacks during the robbery.

      . At the time of the lineup at the homestead the day of the robbery, the defendants were not identified by name. The three apprehended were placed in a row and the witnesses designated their respective identifications, the one on the right, the one on the left, or the one in in the middle. Later the state placed names to these earlier designations. Perhaps there had been an error in recording the names of the two robbers that Fredricks had identified. If so, this might account partly for the apparent inconsistency in Fredricks’ testimony, i.e., her allegedly having identified Gabriel at the homestead lineup, and her testimony just six weeks later at the preliminary hearing, that she was unable to identify Gabriel as one of the robbers.

      . The two pages comprised all of Fredricks’ preliminary examination testimony on the subject of her ability to identify Gabriel and represented completely the relevant inconsistency. See State v. Rudolph, 332 So.2d 806 at 813; State v. Lewis, 354 So.2d 566 (La.1978).

      . This is the subject of an assignment of error by Turner and Williams which, as more fully discussed in the unpublished appendix, we find non-meritorious.
      Adams, not only a police officer but also a victim in this case (the shots fired at Adams formed the basis for the attempted second degree murder charge), encountered defendants at the stationhouse while on his way to deliver his report to Steinkamp. Adams' confrontation and identifications are governed by those cases dealing with inadvertent meetings between victim and suspects. Where there is no indication of impropriety or suggestiveness, and where the identifications were immediate and definite, an out-of-court identification is both reliable and admissible. State v. Loyd, 425 So.2d 710 at 713 (La.1982); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Absent a showing of prejudice, the state’s failure to disclose the fact of an inadvertent stationhouse identification does not mandate a mistrial. State v. Norwood, 396 So.2d 1307 (La.1981).

      . Because of these comments, we were even concerned that there was another police report being viewed in camera that had not been included among the papers sealed by the trial court upon defense counsel's request. Extensive inquiries by the Clerk of this Court into this matter at our direction, however, have proven otherwise. We are satisfied that the copy of the police report lodged under seal with the record on appeal is the only police report in this case.

      . In his Assignment of Error No. 9B, Williams presents the same argument as Gabriel, relative to Officer Adams’ testimony. There is, however, a substantial difference between the two defendants, Gabriel and Williams, as discussed more fully at notes 8 and 9, supra and note 6 of the appendix treatment of Argument VII (Assignments of Error 9A and 9B — Turner and Williams). As relates to Williams, there was no reversible error in regard to this assignment.