text:
    James A. GARDNER, et al., Appellants, v. Richard JOHNSON, Appellee.
    No. 63665.
    Supreme Court of Florida.
    May 31, 1984.
    Jim Smith, Atty. Gen. and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellants.
    David B. McEwen, Tampa, for appellee.
   ADKINS, Justice.

This case is before us on direct appeal from a decision of the Second District Court of Appeal which affirmed the trial court’s determination that section 877.16, Florida Statutes (1979), is unconstitutional. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. The district court’s decision is reported at 429 So.2d 1341 (Fla. 2d DCA 1983).

Section 877.16 states in its entirety:

877.16, Exhibition of deformed animals prohibited; penalty — Whoever shall exhibit for pay or compensation any crippled or physically distorted, malformed, or disfigured beast, bird, or animal in any circus, show, or similar place, or any other place to which an admission fee is charged, whoever knowingly causes to be advertised any such exhibition, and whoever solicits or procures the attendance of others at such exhibition with knowledge of the nature thereof, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083.

Appellee owns and operates an animal show with which he travels about the state exhibiting the animals at various fairs and other events. In January of 1978 the animal show was closed in response to complaints received by Manatee County law enforcement authorities. In April of 1980 appellee filed a complaint for declaratory relief in the circuit court challenging the constitutionality of section 877.16 and its predecessor, section 867.02, Florida Statutes (1977).

The trial court, after a nonjury trial, declared section 877.16 unconstitutional and prohibited appellants from attempting to enforce the provisions of that statute against the appellee. On appeal, the district court affirmed the judgment of the trial court. Appellants then filed a timely notice of appeal to this Court.

Appellee argued at the trial level and on appeal that the statute lacked specific standards from which an average person could determine which animals may not be exhibited. This theory was accepted by the trial court and by the district court with each court relying heavily on the opinion of this Court in World Fair Freaks and Attractions, Inc. v. Hodges, 267 So.2d 817 (Fla.1972). In World Fair Freaks, this Court declared unconstitutional the former companion statute to section 877.16, section 867.01, Florida Statutes (1971), which prohibited the exhibition for pay of deformed humans. A reading of that decision reflects that the plaintiffs in that case, who were themselves deformed humans, could earn no livelihood outside the freak show setting. This Court found it necessary to balance the sometimes conflicting factors of the right of all persons to earn a livelihood against the public health, morals and safety.

This concern cannot be applied to the present case. We cannot agree with appellee’s contention that his right to work is being unconstitutionally infringed because he has invested a great deal of money in developing “his property rights to these beasts, birds and animals.” To the contrary, we believe that the state’s interest in protecting the public health, morals and safety of the public in general could encompass this legislation. One purpose would be, as appellant points out, to prevent the intentional maiming, crippling, disfigurement or induced malformation of animals. In any event, absent a violation of due process or other constitutional guarantees, we will not substitute our judgment as to whether the statute is accomplishing such a purpose for that of the legislature’s. State v. Millington, 377 So.2d 685 (Fla.1979). In this case, unlike World Fair Freaks, we have no interest of the individual to be weighed against the interest of society.

Appellee also asserts that the statute is unconstitutionally vague. As the district court noted, a statute must be definite enough to apprise a person of common intelligence of the activity sought to be proscribed. D’Alemberte v. Anderson, 349 So.2d 164, 169 (Fla.1977); Connor v. Joe Hatton, Inc., 216 So.2d 209, 211 (Fla.1968). The language of the statute must convey sufficiently definite warnings of the proscribed conduct when measured by common understanding and practice. Linville v. State, 359 So.2d 450, 451-52 (Fla.1978). The operative language of this statute is the phrase “crippled or physically distorted, malformed, or disfigured.” Each of these adjectives has a plain and ordinary meaning which can be readily understood by reference to a dictionary. We disagree with the conclusion of the trial court and the Second District Court of Appeal that the definitions of these words are difficult to apply or subject to unbridled discretion by officials attempting to enforce the statute. Small variances in the understanding of individual officers which could possibly be clarified on closer reading of the statute do not necessarily show vagueness.

There is a presumption of constitutionality inherent in any statutory analysis. Scullock v. State, 377 So.2d 682, 683-84 (Fla.1979). Appellee’s assertions are insufficient to overcome this presumption.

Accordingly, we reverse the decision of the district court.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Robert Howard BURNS, Respondent.
    No. 63854.
    Supreme Court of Florida.
    May 31, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Paul A. Gross, Bar Counsel, Miami, for complainant.
    Robert M. Jasinski, Miami Beach, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Robert Howard Burns, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and report of referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Integration Rule of The Florida Bar 11.09(1) has been filed.

Having considered the pleadings and evidence, the referee made findings of fact and offered the following recommendations as to guilt or innocence:

I recommend that the respondent be found guilty of the following violations of the Code of Professional Responsibility: Disciplinary Rule 1-102(A)(1), a lawyer shall not violate a disciplinary rule; Disciplinary Rule 1-102(A)(3), a lawyer shall not engage in illegal conduct involving moral turpitude; Disciplinary Rule 1-102(A)(5), a lawyer shall not engage in conduct prejudicial to the administration of justice; and Disciplinary Rule 1-102(A)(6), a lawyer shall not engage in any other conduct that adversely reflects upon his fitness to practice law.
In addition, I recommend the respondent be found guilty of violating Florida Bar Integration Rule 11.02(2), violation of the Code of Professional Responsibility ... is a cause for discipline and Florida Bar Integration Rule 11.02(3)(a), the commission by a lawyer of any act contrary to honesty, justice or good morales, whether the act is committed in the cause of his relations as an attorney or otherwise, ... constitutes a cause for discipline.

The referee recommends that respondent be disbarred and that he not be eligible for reinstatement for a period of not less than twenty (20) years.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Robert Howard Burns, is hereby disbarred from the practice of law in the State of Florida for a period of not less than twenty (20) years, effective immediately.

Costs in the amount of $427.50 are hereby taxed against respondent.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OV-ERTON, EHRLICH and SHAW, JJ., concur.


text:
    In re Inquiry Concerning a Judge Hale R. STANCIL.
    No. 63885.
    Supreme Court of Florida.
    May 31, 1984.
    Mark Hulsey, Chairman, Jacksonville, and John S. Rawls, Gen. Counsel, Tallahassee, for the Fla. Judicial Qualifications Com’n.
    William G. O’Neill of O’Neill, Cornelius & Cohen, Ocala, for Hale R. Stancil.
   PER CURIAM.

The Judicial Qualifications Commission initiated this proceeding accusing County Judge Hale R. Stancil of a violation of the Code of Judicial Conduct. The Commission filed with this Court its finding of a violation and a recommendation of a public reprimand. We issued an order to Judge Stan-cil to show cause why the recommendation should not be followed. He filed his response to the order to show cause. Now the Commission has filed a reply to Judge Stancil’s response, withdrawing its previous recommendation of a public reprimand.

The Commission having withdrawn its recommendation of a public reprimand, we find, based on the lack of clear and convincing evidence, that Judge Stancil is not guilty of the charged violation of the Code of Judicial Conduct.

This proceeding on judicial conduct is hereby dismissed.

It is so ordered.

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


author: . ALDERMAN, Chief Justice.

text:
    Barbara ARMSTRONG and Donald E. Armstrong, Sr., Petitioners, v. MUNFORD, INC., Respondent.
    No. 64500.
    Supreme Court of Florida.
    May 31, 1984.
    J. Bruce Harper of Robinson, Macpher-son, Harper, Kynes, Batt, Geller & Watson and Wayne J. Boyer, Clearwater, for petitioners.
    H. Vance Smith and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for respondent.
    Larry Klein, West Palm Beach, for The Academy of Fla. Trial Lawyers, amicus curiae.
   . ALDERMAN, Chief Justice.

We accept jurisdiction to review the decision of the District Court of Appeal, Second District, in Armstrong v. Munford, Inc., 439 So.2d 1009 (Fla. 2d DCA 1983), wherein that court has certified the following question as being of great public importance:

Does a third party have a cause of action against the dispenser of alcoholic beverages for injuries caused by a minor when the alcoholic beverages were furnished in violation of section 562.11(l)(a), Florida Statutes (1981), notwithstanding the enactment of section 768.125, Florida Statutes (1981)?

The district court held that section 768.125, Florida Statutes (1981), in effect at the time of the accident involved in this case, requires that the selling or furnishing of the alcoholic beverage to a minor must be done willfully. It further held that in the present case there were neither allegations nor proof of a willful sale by Munford, Inc., of alcoholic beverages to a minor. We approve the result reached by the district court.

Unlike the situation in either Migliore v. Crown Liquors, Inc., 448 So.2d 978 (Fla.1984), or Barber v. Jensen, 450 So.2d 830, No. 63,598 (Fla. Mar. 8, 1984), the present accident occurred after the effective date of section 768.125.

In our recent decisions of Migliore and Barber, we held that prior to the effective date of section 768.125, a third party who could establish proximate causation for his injuries did have a cause of action against the person who furnished alcoholic beverages to a minor in violation of section 562.-11. We also stated, however, that although section 768.125 did not create a cause of action for third persons against dispensers of intoxicants for injuries caused by intoxicated minors, it does constitute a limitation on the already existing liability of vendors of intoxicating beverages. The district court correctly held that section 768.125 requires that the selling or furnishing of the alcoholic beverage must be done willfully. Section 768.125 controls in those cases arising after its effective date.

Accordingly, although we do not approve all of its rationale, we approve the result reached by the district court to affirm the trial court’s summary judgment in favor of Munford, Inc.

It is so ordered.

ADKINS, BOYD, OVERTON, MCDONALD and SHAW, JJ., concur.


author: GLICKSTEIN, Judge. GLICKSTEIN, Judge.

text:
    Loretta COBB, Appellant, v. Carlos MALDONADO, M.D., and James Harrell, M.D., Appellees.
    No. 83-1062.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied June 27, 1984.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    Jill A. Van Derven of Law Offices of Robert T. Bergin, Jr., West Palm Beach, for appellee, Carlos Maldonado, M.D.
   GLICKSTEIN, Judge.

This appeal is from a Summary Final Judgment awarded to a doctor in a medical malpractice action. Appellee’s alleged malpractice took place in October, 1976 and the injury was discovered in August, 1980, within four years. Section 95.11(4)(b), Florida Statutes (1975) provides in part:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.... In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the j-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the, date the incident giving rise to the injury occurred. (Emphasis added).

The trial judge properly observed:

It is clear that the four-year statute of limitations has run unless the statute is tolled because of the fraud, concealment or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period.

In this case, the discovery having been made within the four-year period, appellant failed to overcome the hurdle we have emphasized in the foregoing statute which plainly contemplates successful fraud, concealment or intentional misrepresentation; i.e., prevention of discovery of the injury within the four-year period. Accordingly, we affirm.

ANSTEAD, C.J., and WALDEN, J., concur.

ON MOTION FOR REHEARING

GLICKSTEIN, Judge.

Appellant, Loretta Cobb, seeks a rehearing, pointing out that in medical malpractice suits the provisions of section 95.-ll(4)(b), Florida Statutes (1983), give to claimants who discover concealment of a practitioner’s negligence after the four-year limitation period has run marked advantage over similar claimants who discover the concealment just prior to the limitation period’s expiration. This court takes no pleasure in denying Ms. Cobb’s petition, and calls the statutory anomaly to the legislature’s attention.

In pertinent part, section 95.-ll(4)(b) reads as follows:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.... In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

It is true that as the statute is written the jig is up for the diligent claimant who nevertheless has failed to discover a concealed malpractice incident until the last day of the four-year limitation period, whereas a similar claimant making a similar discovery the day after the four-year limitation period has expired has two years within which to commence suit. It is unlikely the legislature intended such disparate effects. Nevertheless, when a statutory provision is clear and unambiguous, we are obliged to give effect to the language the legislature has used. Holmes v. Blazer Financial Services, Inc., 369 So.2d 987 (Fla. 4th DCA 1979). This court is not free to modify the effect of the statute. We observe that in a case similar to the present one the first district has likewise found the statutory language plain, and come to a similar result. See Carlton v. Ridings, 422 So.2d 1067 (Fla. 1st DCA 1982).

Florida’s Supreme Court recently held that section 95.11(4)(b) is constitutional. Cates v. Graham, 451 Bo.2d 475 (Fla.1984), affirming 427 So.2d 290 (Fla. 3d DCA 1983). The court reiterated that a statute of repose is constitutional so long as it merely curtails the time within which a suit must be filed but does not outright bar a cause of action. The court had previously made the same observation when upholding the constitutionality of section 95.11(3)(c) in Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978).

Rehearing is regretfully denied. We respectfully urge the legislature to take note of section 95.11(4)(b)’s disparate impacts on claimants in virtually identical circumstances, and take appropriate action.

ANSTEAD, C.J., and WALDEN, J., concur.


text:
    Larry Douglas BOGARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-95.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearings Denied July 11, 1984.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Larry Douglas Bogard was convicted of three criminal offenses, as follows:

Count I — Aggravated Battery.
Count II — Possession of a firearm while engaged in a felony.
Count III — Aggravated Assault.

Having considered the proofs and applied the definition of “lesser included” offenses articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); in accord, Borges v. State, 415 So.2d 1265 (Fla.1983), as well as the more recent analysis in Bell v. State, 437 So.2d 1057 (Fla.1983), we hold that the constituent elements of Section 790.07(1), (2), Florida Statutes (1981), as charged in Count Two are sufficiently similar to those of Section 784.045(l)(b), Florida Statutes (1981), as charged in Count One, to here classify Count Two of the Information as a lesser included offense of that charged in Count One.

Accordingly, we affirm as to Counts One and Three, reverse as to Count Two, and remand with instructions to vacate both the conviction and sentence on Count Two.

Affirmed in part; reversed in part; and remanded.

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


text:
    Moses DIXON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-654.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    On Rehearing June 26, 1984.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

The judgments of conviction and sentences under review are affirmed upon a holding that: (a) the defendant, a juvenile, voluntarily entered into a plea negotiation agreement below wherein he pled nolo contendere to the charges and agreed that the court would order a pre-sentence investigation report and thereafter sentence him to no more than five years imprisonment, (b) the defendant was sentenced in accord with the plea negotiation agreement to five years imprisonment (concurrent terms on both charges) after the court reviewed a pre-sentence investigation report ordered in the case, and (c) by voluntarily agreeing to be sentenced as an adult and by not properly objecting to the imposition of sentence below, the defendant has waived his procedural right to written trial court findings on the suitability of adult sanctions, § 39.-lll(6)(c), (d), Fla.Stat. (1983), and to a predisposition report on whether he should be treated as a juvenile for dispositional purposes. § 39.111(6)(a), Fla.Stat. (1983). Glenn v. State, 411 So.2d 1367 (Fla. 5th DCA 1982). '

Affirmed.

ON REHEARING

The defendant has filed a motion for rehearing in which he relies on State v. Rhoden, 448 So.2d 1013 (Fla.1984), and Rathbone v. State, 448 So.2d 85 (Fla. 2d DCA 1984) [decided subsequent to our original decision in this cause] for the proposition that it is fundamental error for a trial court to impose adult sanctions on a juvenile defendant without making written trial court findings on the suitability of adult sanctions as required by Section 39.-lll(6)(c), (d), Florida Statutes (1983), whether the adult sanctions are imposed after a trial or, as here, upon a plea of guilty or nolo contendere. We entirely agree and therefore grant the defendant’s motion for rehearing, affirm the judgments of conviction under review, reverse the sentences under review and remand for resen-tencing in compliance with Section 39.-lll(6)(c), (d), Florida Statutes (1983).

Affirmed in part; reversed in part and remanded.


text:
    William B. TRANTHAM, Appellant, v. C.A. HAWKINS WELL DRILLING, Appellee.
    No. AS-317.
    District Court of Appeal of Florida, First District.
    March 21, 1984.
    Alex Lancaster, Sarasota, for appellant.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellee.
   ON REHEARING

PER CURIAM.

Appellant’s motion for rehearing is granted. Paragraph three of the decretal portion of the order, 450 So.2d 493, appealed from is stricken. As modified, the order is AFFIRMED.

SHIVERS, JOANOS and THOMPSON, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    ISLAND EAST COMPANY OF INDIAN RIVER, INC., Appellant, v. Carl D. LEMON and The Beach Bank of Vero Beach, a banking institution organized and existing under the laws of the State of Florida, Appellees.
    No. 82-2197.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Rehearing Denied July 13, 1984.
    Michael J. Garavaglia of Smith, O’Haire, Quinn & Garris, Vero Beach, for appellant.
    Charles McKinnon of McKinnon & Stewart, Chartered, Vero Beach, for appellee, Lemon.
   PER CURIAM.

AFFIRMED. See Allington Towers North, Inc. v. Rubin, 400 So.2d 86 (Fla. 4th DCA 1981).

ANSTEAD, C.J., BERANEK, J., and CO-CALIS, PATRICIA W., Associate Judge, concur.

ON REHEARING

PER CURIAM.

The petition for rehearing is denied. We acknowledge, however, apparent conflict between our decision herein and the decision of the Third District in Ponce Development Co. v. Espino, 449 So.2d 317 (Fla. 3d DCA 1984).

ANSTEAD, C.J., BERANEK, J., and C0-CALIS, PATRICIA W., Associate Judge, concur.


author: ORFINGER, Chief Judge. ORFINGER, C.J.

text:
    Angelo John DiGUILIO, Appellant, v. STATE of Florida, Appellee.
    No. 82-1235.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.
    Rehearing Denied June 14, 1984.

      John W. Tanner of Tanner, Lambert, & Miller, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Chief Judge.

Defendant Angelo John DiGuilio appeals his judgment and sentence for conspiracy to traffic in cocaine, a second degree felony, following a jury trial. We reverse for a new trial because we conclude that the trial court erred in denying defendant’s motion for mistrial after the prosecutor elicited from a witness testimony concerning defendant’s exercise of his right to remain silent.

We will not burden this opinion with a lengthy recitation of the facts, except to say for the benefit of the parties that there is sufficient evidence to support the conviction, eliminating the impermissible testimony. One of the officers testifying for the State, when being questioned about DiGui-lio’s participation and apprehension was asked if DiGuilio had been read his Miranda warnings following his arrest. The officer replied that he had not personally read the warnings, but had heard a fellow officer read them. The witness paraphrased the content of the warnings, and then the following took place:

(By the Prosecutor)
Q: Did he indicate whether or not he would be willing to answer any questions?
A: At that point, he didn’t say.
Q: Did Mr. DiGuilio make any statements to you at that time?
A: Only to the effect that the driver of the car picked him up at his home and he had come directly to the Howard Johnson’s. That he lived in South Daytona. He refused to give me an address. He refused to identify the name of the driver. He also indicated to me that the driver had parked the car and walked north to the southeast doors to the motel and had entered. After that, he advised me he felt like he should speak to his attorney. And there was no further questioning.
Q: No further questioning?
A: No.

At that point, defense counsel interrupted, asked the court to excuse the jury, and promptly moved for a mistrial on the ground that the foregoing testimony was an impermissible comment on defendant’s right to remain silent. The motion was denied and the trial continued.

The law is clear that if an individual, after being given Miranda warnings, indicates in any manner at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease because the fifth amendment privilege has been exercised. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Thompson v. State, 386 So.2d 264 (Fla. 3d DCA 1980), pet. for rev. denied, 401 So.2d 1340 (Fla.1981). Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant’s exercise of his right to remain silent in the face of accusation, without consideration of the harmful effect of such comment or testimony. Miranda v. Arizo na, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 47 L.Ed.2d 91 (1976); Clark v. State, 363 So.2d 331 (Fla.1978); Shannon v. State, 335 So.2d 5 (Fla.1976); Washington v. State, 388 So.2d 1042 (Fla. 5th DCA 1980).

The State argues that this testimony was not an improper comment on defendant’s right to remain silent, but we must disagree. When the prosecutor asked the officer if defendant indicated whether or not he would answer any questions, he should have known what the answer would be, and the answer given: “at that point, he didn’t say” is a direct comment on defendant’s right to remain silent. The effect of that reply was further exacerbated by the questions and answers which followed, which advised the jury that defendant refused to give his address or to identify the driver of the ear he was in and that he then indicated his desire to talk to his attorney. A defendant should not have his silence or his desire to confer with an attorney used as evidence against him when he has been told, as he must be, that he has those rights.

In Peterson v. State, 405 So.2d 997 (Fla. 3d DCA 1981), a judgment of conviction for attempted burglary was reversed because the arresting officer testified that defendant, after being read his Miranda rights, said that “he would answer some questions, but that he would stop when he didn’t want to answer any more.” The Peterson court said:

... the supreme court has adopted a purely prophylactic rule that any reference to the assertion of fifth amendment rights, if preserved by prompt motion for mistrial as in this case, ipso facto, requires that a new trial be granted, specifically without consideration of whether so-called “harmless error” is or is not involved.

Id. at 1000. See also, Shannon v. State, 335 So.2d 5 (Fla.1976).

In Burwick v. State, 408 So.2d 722 (Fla. 1st DCA 1982), the court reversed a conviction on charges of sexual battery and burglary with assault because the officer testified that the defendant had said that he did not want to make a statement and wanted to talk to a lawyer.

In Bain v. State, 440 So.2d 454 (Fla. 4th DCA, 1983), a conviction for burglary was reversed when the officer testified that after the defendant was given his Miranda warnings and was asked if he wished to answer questions, he indicated that he was unsure of himself. He then gave the officer two different names and an address. In holding that this testimony violated defendant’s constitutional right to remain silent, the court said:

... The law is clear that a defendant’s invocation of his right to remain silent may not be used against him. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Bennett v. State, 316 So.2d 41 (Fla.1975). In Trafficante v. State, 92 So.2d 811 (Fla.1957), the Supreme Court prohibited any such comment, without regard to the character of the comment, or the motive or intent with which it is made. If such a comment is subject to an interpretation which would bring it within the constitutional prohibition, regardless of its susceptibility to a different construction, it constitutes reversible error.

Although the State argues that the testimony here is subject to the interpretation that it does not comment on defendant’s exercise of his rights, it can hardly be doubted that it is certainly subject to the interpretation that he would not answer questions and wanted to talk to his lawyer. If comment by the prosecutor or testimony elicited by the State is subject to the interpretation which would bring it within the constitutional prohibition, that constitutes reversible error notwithstanding its susceptibility to a different interpretation. Trafficante v. State, 92 So.2d 811 (Fla.1957); Bain.

We find no merit in any of the other issues raised by appellant, although one issue warrants discussion. Following his arrest, appellant and another person arrested in the transaction were placed in the rear seat of a police car. No one else was in the car. They were not aware of a hidden tape recorder in the car and appellant’s incriminating conversation was recorded and later introduced by the State at trial, over appellant’s objections, which we hold were properly overruled. An earlier motion to suppress the tape had also been properly denied.

Appellant argues here, as he did below, that the tape recording of his conversation with the other arrestee was a violation of his fourth amendment privilege against unreasonable searches and seizures and his fifth amendment right against self-incrimination. Neither of these constitutional rights is implicated here.

In Brown v. State, 349 So.2d 1196 (Fla. 4th DCA 1977), the court held that a tape recording made under similar circumstances was admissible. The Brown court held, and we agree, that once a person is taken into custody by law enforcement authorities, his right to privacy has been effectively diminished and he has no reasonable expectation that his conversation will be private. Certainly, no reasonable expectation of privacy exists while one is detained in the rear seat of a police vehicle. Neither is the recording of the conversation proscribed by the provisions of Chapter 943, Florida Statutes (1981), as an oral communication, because section 943.02(1) defines oral communications within the statute to include only those which are uttered under circumstances justifying an expectation of privacy. No such expectation is justified here.

Neither is the spontaneous and voluntary conversation between defendant and his alleged co-conspirator a violation of defendant’s fifth amendment right to remain silent. The statements made by defendant were not made in response to custodial interrogation. As a matter of fact, the police were not present in the car and anything appellant said was voluntary on his part. Absent custodial interrogation, spontaneous and voluntary statements by defendant to his alleged co-conspirator violate none of the procedural safeguards described in Miranda v. Arizona.

In Stanley v. Wainwright, 604 F.2d 379 (5th Cir. 1979), Stanley sought federal ha-' beas corpus on the ground that the admission into evidence of his tape recorded statements made in the back seat of a police car violated his fifth amendment rights. In denying relief, the court said:

... Here there was no questioning at all; the appellant’s conversation arose spontaneously while the policemen were physically absent. The policemen’s ruse was not the equivalent of inquiry. Miranda was designed to curb unfair methods of custodial interrogation; it does not protect spontaneous utterances made by detainees mistakenly believing that they will not be overheard, nor forbid police, under fifth amendment sanctions, from setting snares.

Id. at 382.

To borrow a phrase from United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), the government has no duty to catch criminals sportingly or according to any game book rule, so long as a suspect’s constitutional rights are observed. The tape recording was properly admitted here.

Because of the improper comment by the State’s witness on defendant’s constitutional right to remain silent in the face of interrogation, the judgment of conviction is reversed, the sentence set aside, and the cause remanded for a new trial.

REVERSED and REMANDED.

COWART, J„ and DAVIS, S.J., Associate Judge, concur.

ON PETITION FOR REHEARING

ORFINGER, C.J.

Both the defendant and the State move for rehearing. The defendant’s motion is without merit and is denied. The State’s motion requires comment.

The State contends that in State v. Murray, 443 So.2d 955 (Fla.1984) the Florida Supreme Court has receded from the rule expressed in Shannon v. State, 335 So.2d 5 (Fla.1976) and Bennett v. State, 316 So.2d 41 (Fla.1975) that

... any comment on an accused’s right to remain silent is reversible error, without regard to the harmless error doctrine.

It is the State’s contention that in relying on United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), the Murray court has approved the applicability of the “harmless error” doctrine to cases where it is alleged that there was improper comment on the exercise by the accused of his right to remain silent.

For an excellent analysis of the same argument raised by the State, see the opinion written by Judge Cobb in Rowell v. State, 450 So.2d 1226 (Fla. 5th DCA May 24, 1984). Because both Murray and Hasting deal with the effect of prosecutorial comment at trial on the defendant’s failure to testify, and do not discuss the effect of a comment on the defendant’s exercise of his right to remain silent when faced with an accusation, we cannot conclude that Murray has specifically overruled the line of cases which include Shannon and Bennett. However, the State’s position is arguable and should be addressed by the supreme court.

Our review of the record here convinces us that if the harmless error rule can be applied to the facts of this case, the judgment of conviction should be affirmed, because it appears to us that the error on which we based a reversal was harmless beyond any reasonable doubt. Our reversal was based strictly on what we perceive to be the per se rule of Bennett, as approved in Shannon and later in Donovan v. State, 417 So.2d 674 (Fla.1982).

Consequently, we deny the State’s motion for rehearing and we certify to the Florida Supreme Court, as a question of great public importance, the following:

Has the Florida Supreme Court, by its agreement in State v. Murray, 443 So.2d 955 (Fla.1984), with the analysis of the supervisory powers of appellate courts as related to the harmless error rule as set forth in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), receded by implication from the per se rule of reversal explicated in Donovan v. State, 417 So.2d 674 (Fla. 1982); Shannon v. State, 335 So.2d 5 (Fla.1976); and Bennett v. State, 316 So.2d 41 (Fla.1975)?

PETITION FOR REHEARING DENIED. QUESTION CERTIFIED.

COWART, J., and S.J. DAVIS, Associate Judge, concur.


author: HUBBART, Judge.

text:
    Glenda YESTE, individually, and as Personal Representative of the estate of Dixon Yeste, M.D., and John Darren Yeste and Michael Scott Yeste, by and through their natural guardian, mother and next friend, Glenda Yeste, Appellants, v. The MIAMI HERALD PUBLISHING COMPANY, A DIVISION OF KNIGHT-RIDDER NEWSPAPERS, INC., a Florida corporation, and Steven Sternberg, Appellees.
    No. 83-2006
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied June 19, 1984.

      Robert J. Dickman, Port Lauderdale, for appellants.
    Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Richard J. Ovelmen, Miami, for appellees.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   HUBBART, Judge.

The central question presented for review by this appeal is whether that portion of a death certificate which contains the medical certification of the cause of death is open for public inspection as a public record — or is exempt from such inspection — under the Florida Public Records Act [ch. 119, Fla.Stat.(1983) ]. We hold that the above-stated portion of a death certificate is made confidential by Section 382.35(4), Florida Statutes (1983), and is therefore exempt under Section 119.07(3)(a), Florida Statutes (1983), from the public inspection and certified copying provisions of Section 119.07(l)(a), Florida Statutes (1983). We accordingly reverse the final order under review and remand the cause to the trial court with directions to deny the petition for a writ of mandamus filed herein.

On July 12, 1983, Dr. Dixon Yeste died leaving a surviving wife and two minor sons. On July 13, 1983, Dr. Barry Barker, the attending physician to Dr. Yeste during his last illness, filed a medical certification of the cause of death with the Florida Department of Health and Rehabilitative Services, Bureau of Vital Statistics [HRS]. This certificate, in turn, was incorporated into Dr. Yeste’s official death certificate issued by HRS. On July 21, 1983, Steven Sternberg, a reporter for The Miami Herald, applied to the local office of HRS to inspect Dr. Yeste’s death certificate. The request was granted except as to the medical certification of the cause of death. Thereafter, the petitioners, The Miami Herald Publishing Company and Steven Stern-berg, applied to the trial court for a writ of mandamus requiring HRS and sundry other public entities and officials to authorize the inspection of the medical certification portion of Dr. Yeste’s death certificate. At that point, Dr. Yeste’s widow, Glenda Yeste, individually and as personal representative of the estate of Dr. Yeste, and his two minor sons, John Darren Yeste and Michael Scott Yeste, were permitted to intervene in the action and oppose the issuance of the writ of mandamus. After receiving full responses from all parties, and on an undisputed set of facts as stated above, the trial court issued a peremptory writ of mandamus directing HRS and other sundry officials to permit the petitioners to inspect the medical certification portion of Dr. Yeste’s death certificate. The interve-nors appeal.

Without dispute, a death certificate is a public record under Section 119.011(1), Florida Statutes (1983). Ordinarily, then, such a certificate would be subject to the public inspection and copying provisions of Section 119.07(l)(a), (b), Florida Statutes (1983). There is one exception, however, to these public inspection and copying provisions which is set forth in Section 119.-07(3)(a), Florida Statutes (1983), as follows:

“All public records which are presently provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, are exempt from the provisions of subsection (1). ” (emphasis added)

Section 382.35(4), Florida Statutes (1983), in turn, provides as follows:

“The State Registrar shall furnish a certified copy of all or part of any marriage, dissolution of marriage, or death certificate, excluding that portion which contains the medical certification of cause of death, recorded under the provisions of this chapter to any person requesting it upon payment of the fee prescribed by this section. A certified copy of the medical certification of cause of death shall be furnished only to persons having a direct and tangible interest in the cause of death, as provided by rules and regulations of the Department of Health and Rehabilitative Services.” (emphasis added)

Under the above statute, the issuance of certified copies of a death certificate is permitted with one important exception. That portion of a death certificate which contains the medical certification of the cause of death must be deleted from any certified copy of a death certificate, unless the person applying for same has “a direct and tangible interest in the cause of death.” We conclude that this required deletion from certified copies of death certificates makes the deleted portion “confidential” within the meaning of Section 119.-07(3)(a), Florida Statutes (1983), so as to exempt it from the public inspection and copying provisions of Section 119.07(l)(a), (b), Florida Statutes (1983).

We reach this conclusion because we think the legislative purpose behind the statute [§ 382.35(4), Fla.Stat.(1983)] would be thwarted and an absurd or unreasonable result reached if we construed the statute any other way. We are, of course, constrained by law to give full effect to the legislative purpose behind a statute and to avoid constructions which lead to absurd or unreasonable results. Foley v. State, 50 So.2d 179, 184 (Fla.1951). The legislature, as stated above, has mandated that a certain portion of a death certificate [i.e., the medical certification of the cause of death] should be deleted from any certified copy of a death certificate which, by law, is made available to the general public. Only those persons who have “a direct or tangible interest in the cause of death” are authorized by the statute to receive a certified copy of the entire death certificate, including the medical certification of the cause of death. This legislative mandate, we think, is totally undone if any member of the general public may physically inspect and presumably hand copy the above deleted information. There is surely no point in deleting information from a certified copy of a death certificate if one may inspect and hand copy the deleted information in any event. Plainly, the legislature’s purpose here was to make the deleted information confidential, except as to those persons having a direct and tangible interest in the cause of death.

The underlying justification for making such cause of death information confidential seems obvious enough. The cause of death as stated in a death certificate represents sensitive and generally private information. If made public, this information could cause public embarrassment to the deceased’s family, as, for example, where the deceased has died from an illegal drug overdose, by suicide, or from a socially distasteful disease such as venereal disease. Absent some direct or tangible interest in the deceased’s cause of death, it was thought best to keep this portion of the death certificate confidential and deleted so as to spare the feelings of the deceased’s family. Obviously, that purpose is totally defeated if any member of the general public may, as urged, inspect and hand copy the confidential portions of the death certificate.

In this connection, we reject The Miami Herald’s contrary suggestion that an administrative cost-efficiency purpose lies behind the legislative decision to delete the cause of death information from certified copies of death certificates because otherwise “the administrative burden of providing a multitude of certified copies of cause of death papers could prove overwhelming.” [appellee’s brief at 17] The short answer to this argument is that the statute does not prohibit the issuance of certified copies of death certificates; indeed, the statute expressly provides for the issuance of same with one above-stated deletion. Administratively accomplishing this deletion from certified copies already made available to the public obviously does not save time or money. On the contrary, it creates an increased administrative burden for governmental officials. The legislative purpose, then, in requiring this deletion could not have been to save time or money. Plainly, its purpose was to make the deleted portion of the death certificate confidential.

In reaching this result, we do not overlook two contrary considerations. First, we agree with the trial court that Section 382.35(4), Florida Statutes (1983), does not expressly preclude public inspection of the aforesaid portion of a death certificate. This conclusion, however, does not mean that said public inspection is permitted, because Section 119.07(3)(a), Florida Statutes (1983) provides that “[a]ll public records which are presently provided by law to be confidential” are exempt from public inspection and copying. Section 382.35(4), Florida Statutes (1983), for the reasons stated above, makes the aforesaid portion of a death certificate “confidential,” and, therefore, not subject to the public inspection or copying provisions of Section 119.07(l)(a), (b), Florida Statutes (1983). Second, we agree that Section 382.-35(4), Florida Statutes (1983), does not expressly make the aforesaid portion of a death certificate “confidential,” as does Section 382.35(1), Florida Statutes (1983), with respect to birth certificates. See 1982, Op.Att’y Gen.Fla. 82-16 (March 16, 1982). This conclusion, however, does not mean that said portion of a death certificate is not confidential; the legislature, by requiring the aforesaid deletion from certified copies of death certificates, has made the deleted portion confidential by implication. Any other reading of the statute leads, as indicated above, to absurd or unreasonable results. Moreover, we are constrained by law to avoid a literalistic reading of a statute where, as here, such a reading would defeat the entire legislative purpose behind the statute. Garner v. Ward, 251 So.2d 252, 255-56 (Fla.1971).

Turning to the instant ease, it is plain that the petitioners herein were not entitled to inspect the cause of death portion of Dr. Yeste’s death certificate herein. Without dispute, the petitioners have no direct or tangible interest in Dr. Yeste’s cause of death. It therefore follows that they are not entitled to receive a certified copy or to inspect same under the above statute. This being so, the trial court was in error in issuing the peremptory writ of mandamus in this cause.

Finally, we reject The Miami Herald’s argument that, apart from any statute, it has a free press right of access to the medical certification portion of Dr. Yeste’s death certificate. We are cited to no constitutional authority in Florida or elsewhere which has ever held that a newspaper has a free press right of access to public records such as that presented in the instant case. We decline to be the first court to so hold.

The peremptory writ of mandamus under review is reversed and the cause is remanded to the trial court with directions to dismiss the petition for writ of mandamus filed herein.

      . Metropolitan Dade County, Department of Public Health; Richard A. Morgan and Beatrice Marchette, HRS officials.


author: PER CURIAM. HERSEY, Judge, BERANEK, Judge,

text:
    RPC CORPORATION, Appellant, v. CABLE MARINE, INC., Appellee.
    Nos. 82-1355, 82-1456.
    District Court of Appeal of Florida, Fourth District
    April 11, 1984.
    Rehearing Denied June 28, 1984.
    Wesley A. Lauer and Charles M. Rosenberg, of Guren, Merritt, Udell, Sogg & Cohen, Miami, for appellant.
    Marilyn P. Liroff of Weaver, Weaver & Lardin, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, J., concurs.

HERSEY, J., concurs specially with opinion.

BERANEK, J., dissents with opinion.

HERSEY, Judge,

concurring specially.

This case was appropriately Per Curiam Affirmed. However the dissent raises an interesting point which invites comment. The jury verdict, presumed correct in any event, is supported by the evidence. There is no “right” to have an interrogatory verdict. Thus affirmance is required by section 924.33, Florida Statutes (1983).

As we said in Walsh v. Diaz, 409 So.2d 1186 (Fla. 4th DCA 1982):

The defendant-appellants’ sole contention on appeal is that the lower court reversibly erred in declining to submit a special interrogatory to the jury as to whether the plaintiff met the statutory no-fault threshold. The use of such a verdict form, however, is ordinarily for the trial judge alone to decide. Licenberg v. Issen, 318 So.2d 386 (Fla.1975); Frank v. Ruwitch, 318 So.2d 188 (Fla. 3d DCA 1975). In Lawrence v. Florida East Coast R. Co., 346 So.2d 1012 (Fla. 1977), the supreme court adopted the only exception to this rule — and then only prospectively — by requiring special verdicts on the comparative negligence issue. We are neither empowered nor inclined to impose another such mandatory requirement in the present instance. Accord, Souto v. Segal, 302 So.2d 465, 467 (Fla. 3d DCA 1974).

For these reasons we have affirmed the final judgment.

BERANEK, Judge,

dissenting.

Defendant, RPC Corporation, appeals an adverse final judgment awarding plaintiff, Cable Marine, Inc., $190,000 in a complex breach of contract case. I would reverse based on the trial court’s denial of appellant’s request for a special interrogatory verdict.

This complex breach of contract case was tried before a jury over a three-week period. The factual determinations by the jury were of crucial importance. It was up to the jury to decide whether the contract was oral or written, who made the offer, who made the acceptance, and whether future damages were actually incurred. The application of warranty disclaimers and the applicable measure of damages were all dependent on which set of facts the jury believed. The jury found for the plaintiff for $190,000 and for the defendant on its counterclaim for $5,000. Numerous specific issues were necessary for the jury to decide before arriving at the general verdicts rendered.

At the conclusion of the evidence, RPC requested a special interrogatory verdict which the trial court denied after objection from Cable Marine. The case was tried before a jury as requested by Cable Marine. Yet it objected to an interrogatory verdict arguing it would unduly prolong jury deliberations and that it was merely an attempt to obtain an inconsistent verdict which could be used on appeal. Certainly, special interrogatories should not delay deliberations, but instead should speed them up by aiding the jury in focusing on the proper issues. As for an inconsistent verdict being a basis for appeal, that argument deserves no comment. It should be noted that the jury deliberated on this case for a total of 2lh hours immediately prior to the Good Friday, Passover, and Easter week-end.

Except in comparative negligence cases, the submission of a special interrogatory verdict rests within the sound discretion of the trial court. Although numerous decisions note this discretionary standard of review, there are no cases in Florida actually finding that a trial court abused its discretion in not submitting special interrogatories to the jury. In fact, there appears to be one case in the country holding a specific refusal to submit interrogatories to be an abuse of discretion. See Curtis v. Schwartzman Packing Co., 61 N.M. 305, 299 P.2d 776 (1956) and 6 A.L.R.3d 438.

Obviously, the court here had wide discretion in denying the request for special interrogatories but that discretion must have some reasonable bounds. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Here, I see no reason why the request was summarily denied. The two reasons stated by appellee were patently without merit. Indeed, the statement that deliberations would be unduly prolonged is particularly suspect when viewed in retrospect. After a trial of almost one month’s duration, the jury deliberated for 2⅝ hours. These deliberations took place on the eve of a holiday weekend and appellant’s requests for a recess in the deliberations were denied. The reason stated by the trial judge for denying the use of special interrogatories was that it was his practice to submit interrogatories only in automobile negligence cases. I would find this ruling to be an abuse of discretion.

The practice of trying complex commercial cases before juries is an increasing phenomenon in Florida. These cases are difficult for the average juror and special verdicts isolating the appropriate issues should be helpful in reaching a fair and legally correct verdict rather than a detriment. Such verdicts are also of great assistance in the appellate disposition of cases. The federal circuit courts have even advocated the use of special interrogatories pursuant to Federal Rule of Civil Procedure 49(b). See Little v. Banker’s Life & Casualty Co., 426 F.2d 509 (5th Cir.1970); Jamison Co., Inc. v. Westvaco Corp., 526 F.2d 922 (5th Cir.1976); and Bissett v. Ply-Gem Industries, Inc., 533 F.2d 142 (5th Cir.1976).

Professor Moore states in his treatise: When submitted interrogatories are withdrawn ... the trial judge’s action is reviewable for abuse of discretion .... Generally, it is an abuse of discretion to withdraw a proper and material interrogatory, the answer to which proves a necessary basis for the general verdict. 5A J. Moore, Federal Practice, Section 49.04, at 49-38.

Indeed, Florida courts have been receptive to the use of special interrogatories. See Spencer Ladd’s, Inc. v. Lehman, 167 So.2d 731 (Fla. 1st DCA 1964), aff'd in part, rev’d in part, 182 So.2d 402 (Fla.1965). In Lincoln Tower Corp. v. Dunhall’s-Florida, Inc., 61 So.2d 474 (Fla.1952), the Supreme Court observed:

It seems to us to be evident that a jury to which are submitted proper interrogatories will be able to determine finally, for the present and future guidance of the parties, whether or not the performance ... meets the standards required _ At best, a determination of the issues of fact by a jury will be a complicated and confusing task, and whatever is done by way of clarifying the issues beforehand will operate to secure more exactitude and certainly in judgment. Id. at 476.

In State Department of Transportation v. Denmark, 366 So.2d 476, 478 (Fla. 4th DCA 1979), this court acknowledged that “one of the purposes of interrogatory verdicts is to provide a means of checking the work of the jury.” By utilizing the interrogatory verdict in that case, the court was able to determine that the jury had clearly erred.

As previously stated, the law is continually stated to be simply a question of discretion but that does not mean that proposed interrogatories may be denied merely because the trial judge chooses not to give them. Even appellee does not suggest that there was anything wrong with the actual interrogatories proposed in this case. There was never any discussion before the trial court as to the specific questions asked. It appears to me that the court simply chose not to give them and that no one reviewed them for content.

There is precedent for the mandatory requirement of special interrogatory verdicts via judicial decision. Such verdicts were made mandatory by the Florida Supreme Court in comparative negligence cases in Lawrence v. Florida East Coast Ry., 346 So.2d 1012 (Fla.1977). No similar result would be necessary herein. I would simply hold that the denial of appellant’s request here was an abuse of discretion. I am also convinced that this denial was prejudicial and that a new trial is therefore necessary.


author: ANSTEAD, Chief Judge. ANSTEAD, Chief Judge.

text:
    Gregory D. ROLLE, Petitioner, v. STATE of Florida, Respondent.
    No. 83-1990.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Rehearing Denied June 27, 1984.

      William G. Crawford, Jr. of Hodges, Gos-sett, McDonald, Gossett & Crawford, P.A., Hollywood, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   ANSTEAD, Chief Judge.

At issue is whether petitioner’s allegations of newly discovered evidence in his petition for leave to file a petition for writ of error coram nobis are sufficient to require a trial court hearing on the merits. While not passing on the merits, we must decide whether to authorize the trial court to determine, on the basis of evidence as to the allegations made in the petition, whether the petitioner’s criminal conviction should be set aside and a new trial conducted.

For purposes of considering the petition we must take the allegations of petitioner as true. Those allegations recite that, subsequent to the petitioner’s trial and conviction for murder, the chief prosecution witness for the state made a statement to a third party admitting that the petitioner did not commit the crime and that he, the witness, committed the crime. The petition does not allege that the prosecution witness’ testimony was the only evidence used against petitioner, or that the prosecution witness himself now concedes that he lied in the prior trial. Instead the petition relies on the deposition of the third party to whom the witness allegedly admitted his own guilt.

In general, a petition for leave to file a writ of error coram nobis should be granted only if the allegations of newly discovered matters, if taken as true, would have prevented the entry of judgment against the defendant if known before judgment was entered. Riley v. State, 433 So.2d 976 (Fla.1983). While this standard seems narrow, it represents a liberalization from the showing that was once necessary to grant the petition. In Humphreys v. State, 129 Wash. 309, 224 P. 937 (1924), the Washington Supreme Court held that a petition would never be granted merely on the basis of newly discovered evidence

relevant exclusively to the actual merits of the controversy tried and decided by the judgment, however conclusive such evidence may seem to be that the judgment was wrong upon the merits ....

In fact, the Humphreys court speculated that, in a murder conviction, the petition would not be granted even if the alleged victim were actually alive. The court noted that the proper remedy in such cases was a pardon. Dobbs v. State, 63 Kan. 321, 65 P. 658 (1901), and Howard v. State, 58 Ark. 229, 24 S.W. 8 (1893), hold that confessions of others to the crimes of which the defendants were found guilty did not form a sufficient basis to grant coram nobis relief. This rule is discussed in Annot., 33 A.L.R. 84 (1924).

This general rule has been followed in Florida. Lamb v. State, 91 Fla. 396, 107 So. 535 (1926). Lamb cites the above cases with approval. In Pike v. State, 103 Fla. 594, 139 So. 196 (1931), the court held that newly discovered evidence that the sole witness against Pike had confessed to the murder with which Pike was charged would not have prevented the entry of judgment had it been known. This evidence was testimony of a third party, not a recantation by the witness.

Recent cases have also followed this rule. Antone v. State, 410 So.2d 157 (Fla.1982), holds that allegations of newly discovered evidence that Antone’s connection to a murder conspiracy took place only after the murder had been committed were insufficient when it was admitted that Antone himself had testified at trial that he had not participated at all and when other witnesses had testified that he was a full participant. In Tafero v. State, 406 So.2d 89 (Fla. 3d DCA 1981), evidence that a third party had confessed to the crime for which Tafero was convicted and evidence that important state’s witnesses had recanted their testimony to a fourth party were insufficient for coram nobis relief. The Florida Supreme Court has held that newly discovered evidence of a confession by a third party was insufficient to merit coram nobis relief. Riley v. State, 433 So.2d 976 (Fla.1983).

The rule that can be deduced from this line of cases is that newly discovered evidence, if true, must directly invalidate an essential element of the state’s case. Riley, 433 So.2d at 980. For example, if the sole prosecution witness recants his testimony, the state would be left with no evidence, and the petition might be granted. Cf. Tafero, 406 So.2d at 93 n. 8 and 94 n. 11. In each of the cases cited above, the newly discovered evidence did not refute an element of the state s case; rather, the evidence contradicted other existing evidence. Therefore, in each case, sufficient evidence to convict the petitioner remained even after the allegations in the petition, taken as true, were considered. Cf. Mikulovsky v. State, 54 Wis.2d 699, 196 N.W.2d 748 (Wis.1972) where a third party confession was held not sufficient for coram no-bis purposes because that confession merely affected the credibility of other independent evidence of the petitioner’s guilt. In Riley, Justice Boyd, in dissent, conceded that, even accepting the existence of a third party confession, evidence remained to convict Riley. Boyd argued, however, that no jury could “conceivably” have convicted Riley upon this evidence. The majority, of course, did not accept this argument.

In the present case, Rolle’s petition alleges that a critical prosecution witness named Wright implicated Rolle at trial, but that now a witness whose identity or existence could not have been earlier discovered claims that Wright confessed responsibility for the crime to him after Rolle was convicted. This sounds like the kind of evidence that might ordinarily merit serious consideration if presented in a timely motion for new trial. However, because it is conceded that there exists other evidence of petitioner’s guilt and the new witness’s testimony would not nullify Wright’s testimony, but merely affect its credibility, we cannot conclude, under the stringent requirements of the case law set out above, that this evidence is sufficient for eoram nobis relief/ In other words, consideration of the petitioner’s newly discovered evidence, together with the remaining evidence of petitioner’s involvement, would not have mandated the entry of a judgment of acquittal for the petitioner even if known at the time of trial. See Tafero and Riley, supra, wherein relief was denied in similar circumstances.

We must confess, however, to being somewhat disturbed by this result, especially in the face of the rather liberal standards for relief from procedural error authorized by the criminal rules of procedure through a motion for post-conviction relief. The matter alleged herein, i.e., a newly discovered incriminating statement by the chief witness for the prosecution, clearly goes to the merits of the issue of petitioner’s guilt or innocence. However, under the current state of the law judicial relief is excluded, and the petitioner is left to the mercy of the executive branch of government. We are powerless to even authorize the trial court to conduct a hearing on petitioner’s allegations. The net result is that the judiciary may grant relief to a defendant who is not required to make any showing as to his innocence, but can demonstrate that his lawyer failed to perform up-to-snuff, although we are powerless to act in the face of allegations which, if proven, would directly affect the issue of the defendant’s guilt or innocence.

PETITION DENIED.

BERANEK and HURLEY, JJ., concur.

ON REHEARING

ANSTEAD, Chief Judge.

Although we deny the petition for rehearing we certify the following question as one of great public importance:

In order to be entitled to an evidentia-ry hearing upon a petition for writ of error coram nobis predicated upon the recent discovery of additional evidence, must a showing be made that the defendant would have been entitled to a dismissal or directed verdict of acquittal had the new evidence been considered at the original trial?

This certification will permit the petitioner, if he so chooses, to seek further review of our decision in the Florida Supreme Court.

BERANEK and HURLEY, JJ., concur.

      . Newly discovered evidence cannot be a basis for relief under a motion for post-conviction relief. Hallman v. State 371 So.2d 482, 484 (Fla. 1979).


author: MIZE, Associate Judge. SHARP, Judge,

text:
    Rose M. PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 82-1328.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1984.
    Rehearing Denied June 18, 1984.

      Gregory E. Tucci, of Berk & Tucci, P.A., Ocala, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
   MIZE, Associate Judge.

Rose M. Palmer appeals her conviction and sentence for two counts of vehicular homicide. Appellant has raised several points on appeal. Appellant argues that the trial court erred in admitting a certain posed photograph of one of the victims with his girlfriend into evidence, in prohibiting proposed testimony as to the blood alcohol level of the deceased victim who was the driver of the other vehicle, and in giving a special jury instruction requested by the State. We find that the trial court committed no reversible error and affirm.

On the evening of May 29, 1981, two pedestrians were walking across the grass median of U.S. Highway 301 near Ocala in Marion County. The grass median separated the northbound lanes from the southbound lanes of the four-lane highway. The witnesses testified that at approximately 11:00 p.m. they saw a white van pass them traveling north in the southbound fast lane at approximately 50 to 60 miles per hour. They turned to watch the van as it passed and saw headlights approaching in the southbound lanes in the distance. One witness testified that there appeared to be oncoming traffic in both of the southbound lanes. The testimony of the witness further revealed that a few seconds later the van driven by the appellant, Rose M. Palmer, and a southbound motorcycle crashed head-on. Two men on the motorcycle, Paul Utz (the driver) and Mark Kochen, were killed. Neither of the witnesses recalled the van or the motorcycle taking any evasive action to avoid the collision. Both vehicles had their headlights on and neither vehicle was observed braking immediately before the accident.

The testimony of Rose M. Palmer and Albert Palmer, her husband, revealed that Mrs. Palmer, after leaving the home of friends, was driving in an area of the county which was unfamiliar to her. She testified that she proceeded down the road from the friends’ house to what she thought was a two-lane road (Old Ocala Road) but was in fact U.S. Highway 301. There were neither signs nor lights illuminating the intersection. Mistaking the two southbound lanes of U.S. Highway 301 for the north and south lanes of Old Ocala Road, a turn off she had in mind, Rose M. Palmer turned left into the fast southbound lane of U.S. Highway 301 and proceeded north believing herself to be in her own lane of traffic. She traveled about one-half mile with no other traffic on U.S. Highway 301 until she saw two headlights coming toward her in the slow southbound lane. As those lights approached she stated that another single light suddenly darted around the two oncoming headlights into the fast lane and a collision occurred. Subsequent to the accident it was determined that Rose M. Palmer had a blood alcohol level of .078 grams per deciliter.

Rose M. Palmer was charged with two counts of D.W.I./manslaughter and two counts of vehicular homicide. Following the State’s case, a directed judgment of acquittal was granted as to the D.W.I./manslaughter charges and the trial proceeded as to the two vehicular homicide counts. The jury found Rose M. Palmer guilty of the two counts of vehicular homicide.

Appellant argues that the trial court erred in admitting into evidence a posed photograph of one of the victims, Mark Kochen, because it was taken while he was still alive and included his girlfriend. Appellant contends that the picture of the decedent was unnecessary and served only to inflame the passions of the jury. The fact that a photograph might tend to inflame the jury is insufficient by itself to constitute reversible error as long as the photograph has some relevancy either independently or to corroborate other evidence. Jackson v. State, 359 So.2d 1190, 1192 (Fla.1978), citing Young v. State, 234 So.2d 341 (Fla.1970). Here, the photograph had some relevancy with regard to the identity issue. Although it can reasonably be argued that the photograph was cumulative since the father of the decedent identified the body of the decedent at the morgue, the error, if any, in the admissibility of the photograph did not constitute harmful error because it was not of such a nature that would reasonably inflame the passions of the jury.

Appellant contends in her next point of appeal that the trial court erred in prohibiting the proffered testimony as to the blood alcohol level of the other victim, Paul Utz, who was the driver of the motorcycle. The State objected to the testimony based upon the decision set forth in Filmon v. State, 336 So.2d 586 (Fla.1976) a culpable-negligence manslaughter case. In that case the supreme court stated clearly on page 591 that the acts of the decedent can neither add to nor detract from the quality of the appellant’s conduct. The reasoning in Filmon should apply to a vehicular homicide case. If, in a culpable negligence case, the conduct of the decedent can neither add to nor detract from the quality of appellant’s conduct unless it was the sole proximate cause of the accident, as Filmon states, then neither can the acts of the decedent Paul Utz be considered in such a manner in this case.

Appellant further appeals the trial court’s following jury instruction:

... for purposes of prosecution for the offense of vehicular homicide, acts by the deceased can neither add to nor detract from a defendant’⅜ conduct and do not bear on the issue of wantonness or recklessness.

Appellant argues that the jury instruction was imprudently given as it informed the jury that appellant’s testimony as to the suddenness of the accident and possibly even the testimony of a corroborative witness who saw headlights was insufficient as a matter of law for the jury to consider in reaching its verdict. Appellee contends that the instant instruction was probably unnecessary because the evidence as to the sobriety of the motorcycle operator had been excluded, but argues that the giving of the instruction was nevertheless harmless error.

As proximate cause is a required consideration in a vehicular homicide prosecution, the jury was entitled to consider any evidence which could possibly have shown that Paul Utz’s conduct was the sole proximate cause of the accident. However, under the facts of this case, Paul Utz’s conduct was clearly not the sole cause of the accident. In Harrell v. State, 405 So.2d 480 (Fla. 3d DCA 1981), the court held that, in order to secure reversal of a conviction, the burden is on the defendant to establish prejudice resulting from any trial error, absent any showing of actual reliance by the jury or constitutional error. While it may have been error on the part of the trial court to allow the instruction, no reason exists to presume that this instruction prejudiced appellant and therefore the error, if any, was harmless.

We therefore hold that the conviction of appellant is affirmed.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion

SHARP, Judge,

dissenting.

I dissent because I think the evidence in this case is insufficient to establish beyond a reasonable doubt that Palmer was guilty of vehicular homicide. Even if the evidence is sufficient, it is marginal at best, and the trial judge's exclusion of the evidence of the motorcycle driver’s blood alcohol level and his instruction that the jury should disregard the conduct of the motorcycle driver, deprived Palmer of a fair trial. The trial court relied upon Filmon v. State, 336 So.2d 586 (Fla.1976), in making both rulings. This case illustrates the danger of applying a broadly-stated rule of law out of context.

Palmer was convicted of vehicular homicide. This is defined as:

the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. (Emphasis supplied.)

§ 782.071, Fla.Stat. (1981). Most jurisdictions interpret similar criminal statutes using the word “reckless” as requiring proof of willful or wanton conduct. In addition, the conduct must be intentionally embarked upon by the actor with the realization that it probably will cause injury to another. Annot., 52 A.L.R.2d 1337 (1957). Similarly, “reckless driving” is defined by section 316.192, Florida Statutes (1981), as driving a vehicle in “willful or wanton disregard for the safety of persons or property. ...”

In McCreary v. State, 371 So.2d 1024 (Fla.1979), our supreme court found that reckless, as used by the vehicular homicide statute, was a degree short of culpable negligence as used in the manslaughter statute, section 782.07, Florida Statutes (1975), but it was more than a mere failure to use ordinary care. The court defined culpable negligence as conduct which is gross and flagrant. It evinces, inter alia, “a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. [Cites omitted].” McCreary at 1026. In cases where only one or two factors were involved, such as speeding or being on the wrong side of the road, the courts have held that culpable negligence was not proven.

In this case there was little evidence of conscious reckless conduct on the part of Palmer. As the majority opinion describes the accident, the major cause was that Palmer made an inadvertent, incorrect turn going north in the fast lane for southbound traffic of a four-lane highway. She thought she was on a two-lane highway. It was a dark night. There were no lights or signs at the intersection, and there was no traffic on either the northbound or southbound lanes. She was not familiar with the roads or area. Not until after the collision did Palmer see any traffic which could have warned her she was in the wrong traffic lane. At most, this was a tragic mistake on her part, but it does not evince consciously reckless behavior.

Nor were other factors established in this case to justify the imposition of criminal sanctions. Palmer’s blood alcohol level showed she was not intoxicated. Further, she was driving below the speed limit. The only factors used against her to show conscious recklessness were that she did not apply her brakes or take evasive action to avoid hitting the motorcycle. She testified she did not have time to take any such action, and the evidence supported her answer. Unless section 782.071 encompasses ordinary negligence, which I do not think it does or should, Palmer’s conviction should be reversed.

Even if the fact that Palmer did not brake or swerve to try to avoid the motorcycle was enough to send the case to the jury, she was erroneously prevented from explaining or countering these facts by the trial court's ruling based on Filmon. She proffered evidence to show that the deceased motorcycle driver had a blood alcohol level indicating he was not completely sober. And Palmer testified she did not see his headlight until he pulled around the southbound automobile in the slow lane, just as it was passing her, so abruptly and so fast she could not react. He obviously did not look out beyond the automobile ahead of him before accelerating around it, although Palmer’s headlights would have been visible. But these facts were taken away from the jury’s consideration by a special instruction, based on Filmon, to which Palmer objected:

[F]or purposes of prosecution for the offense of vehicular homicide, acts by the deceased can neither add to nor detract from the defendant’s conduct and do not bear on the issue of wantoness or recklessness.

Filmon requires no such instruction, nor was such an instruction approved in that case. In Filmon, the issue was whether the defense’s instruction concerning a decedent motorist making a left turn in violation of a driving statute should have been given as bearing on the issue of causation. The court said that only if the decedent’s conduct was the sole proximate cause of the accident would the instruction be proper. This rule is based upon the well-established principle in criminal law that contributory negligence of a victim is not a defense; and where there are two contributing causes, both actors are criminally responsible. 21 Am.Jur.2d Criminal Law § 187 (1981); R. Ferguson, Concepts of Criminal Law, Selected Readings 416 (1975).

However, this rule has never prevented the consideration of the victim’s or a third person’s behavior as part of the circumstances in determining whether the defendant acted in a culpably negligent manner. In fact, in Filmon the blood alcohol level of the defendant, as well as the deceased’s, was put into evidence. “Thus, although the victim’s contributory negligence is not a defense, it may be considered as tending to show that the defendant was not culpably negligent_” 21 Am.Jur.2d Criminal Law, supra, at § 187. “However, the victim’s negligence is relevant on the question whether the defendant was himself guilty of criminal negligence.... ” 1 C. Torcia, Wharton’s Criminal Law § 47 (14th ed. 1978).

The conduct of the victim is often an important factor in a case, bearing on the degree of negligence of the defendant. As part of the situation or circumstances in which the defendant is acting, it is highly relevant. See Russ v. State, 140 Fla. 217, 191 So. 296 (1939); Graives v. State, 127 Fla. 182, 172 So. 716 (1936). How can the fact-finders determine whether the defendant was criminally negligent, under the circumstances, if part of the relevant circumstances are taken away from them?

In Smith v. State, 65 So.2d 303 (Fla. 1953), the supreme court held culpable negligence had not been shown in a case similar to this one. The driver was intoxicated and driving fast on a dark night in a rural area. He struck two pedestrians, who were wearing dark clothing, as they crossed the highway. The court observed that the pedestrians had not observed fundamental rules for their own safety. Their behavior was clearly considered by the court as bearing on the degree of recklessness of the defendant’s conduct.

In this case, the behavior of the motorcycle driver should likewise have been considered by the jury on the issue of Palmer’s reckless conduct, or lack thereof, in failing to brake or swerve. Failure to allow the jury to fully consider the circumstances of this accident, I think, deprived Palmer of a fair trial. I would reverse, or reverse for a new trial.

      . See Smith v. State, 65 So.2d 303 (Fla. 1953); Graives v. State, 127 Fla. 182, 172 So. 716 (1936); Scarborough v. State, 188 So.2d 877 (Fla. 2d DCA 1966); Jackson v. State, 100 So.2d 839 (Fla. 1st DCA 1958). Compare Filmon v. State, 336 So.2d 586 (Fla.1976); Tegethoff v. State, 220 So.2d 399 (Fla. 4th DCA 1969). But see Franklin v. State, 120 Fla. 686, 163 So. 55 (1935).

      . See R. Ferguson, Concepts of Criminal Law, Selected Readings 410 (1975).

      . See J.A.C. v. State, 374 So.2d 606 (Fla. 3d DCA 1979).

      .Annot., 20 A.L.R.3d 473 (1968).