author: ADKINS, Justice. BOYD, Justice,

text:
    Clifford R. KUEHNER, Petitioner, v. Henry Michael GREEN, et al., Respondents.
    No. 61586.
    Supreme Court of Florida.
    July 28, 1983.

      L. Edward McClellan, Jr. of McClellan, Raster & Vostrejs, Ocala, and Wooten, Honeywell, Kest & Martinez, Orlando, for petitioner.
    John G. Rooney of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for respondents.
   ADKINS, Justice.

This cause comes before us on certification from the District Court of Appeal, Fifth District, as a matter of great public importance. Kuehner v. Green, 406 So.2d 1160 (Fla. 5th DCA 1981). Our jurisdiction vests under article Y, section 3(b)(4), Florida Constitution.

Petitioner Kuehner, plaintiff in the trial court, brought a negligence action against respondent Green, defendant in the trial court, in the Circuit Court of the Eighteenth Judicial Circuit, Brevard County, Florida. Kuehner had been injured as the result of a karate takedown maneuver executed by Green during a sparring exercise at Green’s home. The case was tried before a jury which found both plaintiff and defendant fifty percent negligent. Kuehner’s damages totaled $55,000.

The jury was also presented with a special interrogatory which stated in pertinent part:

Did the Plaintiff, CLIFFORD R. KUEH-NER, know of the existence of the danger complained of, realize and appreciate the possibility of injury as a result of such danger, and, having a reasonable opportunity to avoid it, voluntarily and deliberately expose himself to the danger complained of?

The jury answered this question in the affirmative and, in turn, the trial court held that sufficient evidence was presented to establish the defense of express assumption of risk. Thereafter final judgment was rendered on behalf of Green, the defendant. On appeal the district court affirmed the lower court’s decision but certified the following question as a matter of great public importance:

Does express assumption of risk absolutely bar a plaintiff’s recovery where he engages in a contact sport with another participant who injures him without deliberate attempt to injure?

406 So.2d at 1161.

In Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977), this Court abolished implied assumption of risk as a defense to an action in negligence. We, however, reserved opinion as to the viability of express assumption of risk stating:

It should be pointed out that we are not here concerned with express assumption of risk which is a contractual concept outside the purview of this inquiry and upon which we express no opinion herein. Included within the definition of express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the covenan-tee’s negligence as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport.

348 So.2d at 290 (emphasis added) (citations and footnotes omitted).

We are called upon now to render our opinion regarding the impact of the doctrine of express assumption of risk as it arises in “situations in which actual consent exists such as where one voluntarily participates in a contact sport.” Id. (emphasis added).

If contact sports are to continue to serve a legitimate recreational function in our society express assumption of risk must remain a viable defense to negligence actions spawned from these athletic endeavors. However, the doctrine of assumption of risk often overlaps that of contributory negligence and can, if wrongly applied, result in the same inequities which this Court sought to avoid by abolishing contributory negligence in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). See also Blackburn v. Dorta. Thus, for express assumption of risk to operate compatibly within our comparative negligence system, courts of law must fully appreciate the scope and proper applications of the doctrine.

From the outset we find that a participant in a contact sport does not automatically assume all risks except those resulting from deliberate attempts to injure. Express assumption of risk, as it applies in the context of contact sports, rests upon the plaintiff’s voluntary consent to take certain chances. Meulners v. Hawkes, 299 Minn. 76, 216 N.W.2d 633, 635 (1974). This principle may be better expressed in terms of waiver. When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken. Our judicial system must protect those who rely on such a waiver and engage in otherwise prohibited bodily contacts.

It is the jury’s function to determine whether a participant voluntarily relinquished a right, or, in terms of the Blackburn decision, “actually consented” to confront certain dangers. In so doing several threshold questions must be answered. First, the jury must decide whether the plaintiff subjectively appreciated the risk giving rise to the injury. Henry v. Britt, 220 So.2d 917 (Fla. 4th DCA), cert. denied, 229 So.2d 867 (Fla.1969); see also Dana v. Bursey, 169 So.2d 845 (Fla. 2d DCA 1964), (actual knowledge is essential to voluntary assumption of risk). In making this determination it is well within the province of the jury to consider all the evidence as to what the plaintiff really expected while participating in the particular contact sport. If it is found that the plaintiff recognized the risk and proceeded to participate in the face of such danger the defendant can properly raise the defense of express assumption of risk. “Voluntary exposure is the bedrock upon which the doctrine of assumed risk rests.” Bartholf v. Baker, 71 So.2d 480, 483 (Fla.1954). Here, even though the defendant breached his duty of care and was negligent, the plaintiff should be barred from recovery because he in some way consented to the wrong. See Assumption of Risk in a Comparative Negligence System, 39 Ohio St.L.J. Number 2, 364 (1978); see also Restatement (Second) of Torts § 496C, Comment b (1965).

If the plaintiff is found not to have subjectively appreciated the risk, the trier of fact must determine, after reviewing all evidence, whether this plaintiff should have reasonably anticipated the risk involved. Brady v. Kane, 111 So.2d 472 (Fla. 3d DCA 1959). If it is found that a reasonable man would not have anticipated this risk, the “unsuspecting plaintiff” cannot be said to have consented to such danger and he therefore should be allowed to recover in full.

Conversely, if the jury determines that the plaintiff should have anticipated the particular risk and did not, then plaintiff’s conduct should be subjected to comparative negligence apportionment principles. Allowing the jury to assess a plaintiff’s failure to anticipate a risk poses no greater practical problems in the apportionment process than allowing it to consider contributory negligence. See Hoffman v. Jones; Blackburn v. Dorta.

In light of the discussion above, the trial court in the case sub judice properly barred Kuehner from recovery on grounds of express assumption of risk. At the conclusion of the evidential portion of the trial the jury was presented with a special interrogatory stating in pertinent part: We find that this question adequately addresses all threshold determinations required in applying the doctrine of express assumption of risk. By answering the interrogatory in the affirmative the jury determined that Kuehner subjectively recognized the danger of “leg sweeps” and voluntarily proceeded to spar in the face of such danger. Ample evidence in the record supports this factual determination. Accordingly the trial court was proper in finding applicable the doctrine of express assumption of risk. The decision of the district court of appeal is approved. The certified question, however, is inapposite to the facts of the case. Therefore the question, as framed, is not being answered.

Did the Plaintiff, CLIFFORD R. KUEH-NER, know of the existence of the danger complained of, realize and appreciate the possibility of injury as a result of such danger; and, having a reasonable opportunity to avoid it, voluntarily and deliberately expose himself to the danger complained of?

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD and EHRLICH, JJ., concur.

BOYD, J., concurs specially with an opinion.

BOYD, Justice,

concurring specially.

I concur with this Court’s approval of the district court’s decision affirming the final judgment in favor of the defendant, but for different reasons. I disagree with the manner in which the majority applies the assumption of risk doctrine to the facts of this case. I believe that the defendant should never have been placed in the position of having to raise this affirmative defense since the plaintiff’s complaint failed to state a cause of action.

Historically, the courts have been reluctant to allow persons to recover money damages for injuries received while participating in a sport, especially a contact sport, unless there was a deliberate attempt to injure. In denying recovery, the courts have often explained that a person who participates in a sport assumes the risk that he or she may be injured. Only recently have some courts allowed a sport participant to recover damages for injuries resulting from unintentional but reckless misconduct. See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (1979); Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975). These courts reasoned that a sport participant does not assume the risk of injuries resulting from bodily contact uncustomary to or prohibited by the rules of the particular sport.

The majority opinion in this case leaps beyond the confinements of all prior precedent by tacitly accepting the principle that a sport participant may recover damages for injuries resulting from simple negligence. The consequences of the majority decision will be extremely unsettling to legal relations in the sports world. The majority opinion will encourage the filing of tort action suits whenever an injury occurs during a sport activity. Any person who participates in a sport may now be faced with a lawsuit whenever he or she causes an injury. Although that person may ultimately prevail because of the plaintiff’s assumption of the risk, that person will still be saddled with the expense of defending against such a suit and will have the burden of proving that the plaintiff was actually aware of the risks involved. Moreover the only way a sport participant can be sure that the defense will be available is to actually warn all the other participants of the risks involved. A better way to properly limit the scope of potential liability, but without these adverse consequences, is to focus the inquiry not on the plaintiff’s assumption of the risk, but rather on the nature of the defendant’s duty toward the plaintiff. See Blair v. Mt. Hood Meadows Development Corp., 291 Or. 293, 630 P.2d 827 (1981). The only duty that a person participating in a contact sport has toward a fellow participant is to refrain from intentional or reckless misconduct that is not customary to the sport. Hence a complaint whieh fails to allege facts showing that the defendant engaged in intentional or reckless misconduct should be subject to a motion .to dismiss for failure to state a cause of action. This would relieve sport participants of the financial burden of having to prove the affirmative defense of assumption of the risk. It would also abolish the absurd legal semantics which classify voluntary participation in a contact sport as an “express” assumption of the risk.

In this case the plaintiff was injured when he fell as a result of a “leg sweep.” Because the “leg sweep” is a common karate maneuver, the defendant did not act in a reckless and therefore tortious manner. For this reason I concur in the judgment approving the district court decision.


source: Caselaw Access Project

author: BOYD, Justice. EHRLICH, Justice, McDONALD, Justice,

license: Public Domain

text:
    Charles F. BEECH and Fred Pendley, Petitioners, v. STATE of Florida, Respondent. Donald Lee ADAMS, Petitioner, v. STATE of Florida, Respondent.
    Nos. 61925, 62128.
    Supreme Court of Florida.
    July 28, 1983.
    Steven L. Bolotin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for Beech.
    Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for Adams.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Jacksonville, and Gregory C. Smith, Tallahassee, Asst. Attys. Gen., for respondent.
   BOYD, Justice.

These consolidated eases are before the Court on petitions for review of two decisions of the District Court of Appeal, First District, both of which passed upon questions which the district court certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

In separate criminal proceedings all three petitioners were placed on probation but were required to serve lengthy terms in prison as conditions of their probation, followed by continued terms of ordinary probation. Such punishment is referred to as the “split sentence alternative.” All three petitioners successfully challenged the validity of these orders under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). On remand to the trial courts, each petitioner was sentenced to a term of imprisonment longer than the originally required period of incarceration but no longer than the original combined term of incarceration and probation. The petitioners appealed, contending that their sentences constituted increased criminal penalties following appeal and were in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The district court of appeal affirmed the sentences and in both cases (two of the appeals having been consolidated by the district court) certified the following questions to be of great public importance:

1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the period of imprisonment and probation originally imposed? If not, what is the maximum sentence?
2. If the corrected sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)?
3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearce ?

Adams v. State, 414 So.2d at 1081; Beech v. State, 411 So.2d at 1385-86. Our answer to these questions is that in correcting a voidable order of punishment for a criminal offense a trial judge may impose a sentence of imprisonment no longer than the originally ordered combined period of incarceration and probation and that the sentences imposed in these cases did not deprive the petitioners of due process of law.

In North Carolina v. Pearce, the United States Supreme Court held that at a new trial following a successful appeal, a convicted person may not be given a sentence more severe than that originally imposed unless it is “based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 395 U.S. at 726, 89 S.Ct. at 2081. The purpose of this holding was to assure that convicted persons could take an available appeal without fear of retaliation from the sentencing judge.

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

Id. at 725, 89 S.Ct. at 2080 (footnote omitted). Thus it is not the more severe penalty itself but rather the use of the fear of a more severe penalty to deter the exercise of the right of appeal that concerned the Court under principles of due process.

For Pearce to be applicable, then, there must be some connection between the imposition of a more severe sentence and the defendant’s exercise of some right. When the defendant has not sought to have his sentence vacated or modified but the court imposes a more severe sentence to replace an illegal sentence on its own motion or on motion of the state, Pearce is inapplicable. E.g., Blankenship v. Parratt, 554 F.2d 850 (8th Cir.1977); Bell v. United States, 521 F.2d 713 (4th Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); State v. Pina, 440 A.2d 962 (Conn. 1981); State v. Blankenship, 195 Neb. 329, 237 N.W.2d 868 (1976). However, when a defendant is resentenced after having the original sentence vacated on the ground that the sentencing judge relied on a conviction that was subsequently set aside, Pearce is applicable. United States v. Durbin, 542 F.2d 486 (8th Cir.1976); Commonwealth v. Brown, 445 Pa. 274, 314 A.2d 5060 (1974). In such cases the threat of a more severe sentence may deter a convicted person from seeking to vindicate his right to be sentenced only on the basis of valid considerations. Therefore, Pearce applies to sentencing proceedings that are held as a result of the convicted person’s having pursued his constitutional or statutory rights regarding sentencing.

In the instant cases the petitioners invoked their rights to have their orders of probation with incarceration corrected after Villery declared certain punishments of this variety to be illegal under the applicable statutes. In Villery we held that the period of incarceration that may be imposed as a condition of probation is limited to less than one year. The opinion went on to explain the practical consequences of our construction of the pertinent statutes:

Accordingly, one who has been given a split sentence probation contrary to the mandate of this decision is entitled upon application to have the illegal order corrected. In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment. However, unless a condition of probation is determined to have been violated, the court may not extend the term of probation either with or without incarceration, nor may the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla.Stat. (1979).

396 So.2d at 1111-12.

By placing a limitation on the sentence that could be imposed in place of such an illegal “split sentence,” the Villery decision gave effect to the principle of Pearce that vindictiveness should play no part in the resentencing of a convicted person. However, in Villery we were faced with a unique problem that was not considered by the Supreme Court in Pearce. Under Pearce, when a person is being sentenced after a second trial brought about by the taking of a successful appeal, a sentence identical to the sentence originally imposed creates no due process problem. In the present cases, “resentencing” was necessary because the punishments originally imposed were illegal under Villery. In other words, by declaring a category of split sentences illegal, we took away the alternative of imposing sentences identical to those originally imposed.

Implicit in the Villery decision is the principle that if incarceration is the real objective of the judge’s order, such objective should be achieved through a sentence of imprisonment and not through a probation order with a lengthy period of incarceration as a condition of probation. The latter alternative was seen as a device for defeating the jurisdiction of the Parole and Probation Commission and thus violated legislative intent if the incarceration required was of a period of one year or more.

In the present cases, therefore, the sentencing judges were required to impose sentences that were inherently different in kind from the original orders of probation with incarceration. Because of the differences between such an order of probation and a sentence of imprisonment, it is impossible to devise a formula for precisely ranking the various sentencing alternatives according to degree of severity. The single factor common to both kinds of treatment is the total period of time the convicted person is under state supervision. So, in Villery we concluded that any sentence of imprisonment should be no longer than the original combined term of incarceration and probation. We do not believe that any further limitation is needed in order to avoid having a deterrent effect on a defendant’s exercise of his right to have his original illegal order corrected. When a sentence is imposed within this guideline, although it may be harsher than the original order in some respects, we will presume that it was not rendered out of vindictiveness.

Since there is no evidence in the records of these cases to show that the sentences here in question are both more severe than the original punishments and were imposed to retaliate against the petitioners for having pursued their rights, the presumption of correctness stands. We therefore hold that these sentences did not deprive petitioners of due process. Accord Stuckey v. Stynchcombe, 614 F.2d 75 (5th Cir.1980); Jones v. United States, 538 F.2d 1346 (8th Cir.1976).

The decisions of the district court of appeal are therefore approved.

It is so ordered.

ALDERMAN, C.J., and ADKINS and OVERTON, JJ., concur.

EHRLICH, J., concurs specially with an opinion.

McDONALD, J., dissents with an opinion.

EHRLICH, Justice,

concurring specially.

I concur with the majority based on the facts of these cases as governed by the judicial interpretation of the validity of split sentences since Villery. The petard on which we find ourselves hoisted is clearly one of our own construction. The error in Villery, as pointed out at the time by Justice McDonald was to impose the limitation of the period of incarceration which correctly applies to incarceration as a condition of probation pursuant to sections 948.01(3) and 948.03(2), Florida Statutes (1979) to the unrelated period of incarceration imposed pursuant to the true split sentence authorized by section 948.01(4), Florida Statutes (1979).

A close reading of the statute illuminates the analytical distinctions between the alternatives. For incarceration to be imposed as a condition of probation, sentence must be either stayed or withheld. In a true split sentence, sentence is imposed and probation may be substituted for in-custody service of a portion of that sentence. Nor does the true split sentence divest the Florida Parole and Probation Commission of its statutory power to consider the prisoner for parole— the major concern of the Villery Court in prohibiting incarceration for a period greater than one year as a condition of probation. Any prisoner under sentence for a period greater than one year is unarguably within the purview of section 947.16, Florida Statutes (1979). See Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981).

Had the Court refused on rehearing to expand its original holding in Villery to true split sentences, the petitioners now before us would have had the benefit of their original sentences and we would not be so hard-pressed to distinguish their plight from that proscribed in Pearce. More significantly, judges — and society — would still have available a useful sentencing option, one which was clearly within the contemplation of the legislature.

I would prefer to recede from Villery and reinstate the. sentences originally imposed.

McDONALD, Justice,

dissenting.

These cases illustrate the dilemma created by that portion of the majority opinion in Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), which held invalid incarceration, pursuant to the split sentence alternatives provided in subsections 948.01(4) and 948.03(2), Florida Statutes (1979), for more than one year. I urged in a special concurrence to Villery, that those statutory provisions clearly allow a trial court to impose a sentence of incarceration for a term of years, during which the prisoner would be eligible for parole consideration, to be followed by a term of probation. Such a true split sentence alternative allows the trial court the flexibility to ensure that a defendant remains under some type of state supervision for an appropriate length of time, but does not sanction the abuse complained of in Villery, i.e., circumvention of the parole process by imposition of a lengthy prison sentence as a condition of probation. The “legal and administrative morass” which the majority feared would be created by such split sentences is, in fact, not so insurmountable as to justify the removal of a sentencing alternative clearly provided by the legislature. But my view did not prevail.

Villery’s retroactive abolition of the split sentence alternative involving incarceration for more than one year has forced the trial judges of this state to fulfill their original, legitimate sentencing goals through other means. In petitioners’ cases, this has resulted in dropping the probationary term and increasing the term of imprisonment.

As the majority recognizes, it is impossible to quantify the severity of the various incarceration-probation combinations originally imposed on the petitioners. No reasonable person, however, would equate probation to imprisonment. Adam’s resentenc-ing from fifteen years’ probation with two years of incarceration as a condition of probation to a flat ten-year prison sentence is clearly an increase in punishment. On the other hand, Pendley’s new sentence of twelve years in prison is less obviously more severe than his original term of ten years’ incarceration followed by five years of probation.

The due process analysis of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), however, compels me to conclude that since an equation cannot be formulated, an increase in the length of incarceration must be regarded as a more severe punishment, which must be justified on the record by “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726, 89 S.Ct. at 2081. By its very definition, incarceration is a more drastic restriction on an individual’s freedom than is state-supervised probation. It may be that some defendant would prefer a slight lengthening of his prison term in return for complete freedom from state supervision upon his release. Nevertheless, it is clear that the possibility, indeed likelihood, of an increased prison term may unconstitutionally deter prisoners from exercising the right given them in Villery to collaterally attack their original sentences. It was just such a chilling effect that the Supreme Court in Pearce sought to prohibit.

I recognize that by limiting trial courts upon resentencing to imposition of the original term of imprisonment, these defendants will gain something of a “windfall” in that the total length of time during which they will be subject to some form of state supervision will be reduced. Similarly, I recognize that, had the trial courts which originally sentenced Beech, Pendley, and Adams foreseen the majority opinion in Vil-lery, lengthier periods of incarceration likely would have been meted out from the outset. Be that as it may, this Court has seen fit to retroactively invalidate a sentencing alternative and to allow those sentenced thereunder to have their now illegal sentencing order corrected. We may not now deter the exercise of that right by sanctioning the imposition, upon resentenc-ing, of harsher sentences in the form of lengthier periods of incarceration.

Since the Court is disinclined to recognize the overbreadth of Villery, I must dissent from the majority’s conclusion here that the sentences imposed upon the petitioners do not deprive them of due process. I would remand to the trial court with instruction that, in the absence of evidence of identifiable conduct on the part of petitioners occurring after the time of the original sentences, petitioners’ sentences be reduced to the term of incarceration originally imposed.

        Adams v. State, 414 So.2d 1079 (Fla. 1st DCA 1982); Beech v. State, 411 So.2d 1384 (Fla. 1st DCA 1982).

      . § 948.01(4), Fla.Stat. (1979), provides:
      (4) Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.

      . Beech was originally sentenced to 15 years’ imprisonment, with the balance of the sentence to be suspended after six years, to be followed by six years of probation. He was resentenced to 12' years in prison. Pendley was originally sentenced to 15 years in prison, provided that after 10 years the balance of the sentence be suspended, to be followed by five years of probation. Like Beech, Pendley was resentenced to a flat 12-year prison term. Adams was first sentenced to 15 years’ probation with the condition that he serve the first two years in prison. Upon resentencing, he received a straight 10-year prison term.

      . Of course the proper thing for this Court to do is to revisit that erroneous portion of Villery discussed above and remand these cases with instructions to reinstate the original sentences imposed.


author: BOYD, Justice.

text:
    Pedro QUEVEDO, Petitioner, v. STATE of Florida, Respondent.
    No. 62092.
    Supreme Court of Florida.
    July 28, 1983.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan and Elliot H. Scherker, Asst. Public Defenders, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., Miami, for respondent.
   BOYD, Justice.

We accepted jurisdiction of this case to review the decision of the district court of appeal, Quevedo v. State, 413 So.2d 136 (Fla. 3d DCA 1982). The petition for review was grounded upon the assertion that the decision below conflicted with the decision in Wilson v. State, 298 So.2d 433 (Fla. 4th DCA 1974), cert. dismissed, 327 So.2d 35 (Fla.1976).

The decision of the district court of appeal in the instant case was announced in an opinion which reads in its entirety as follows:

It affirmatively appears that any violation of Fla.R.Crim.P. 3.150(b) in the join-der in the same trial of the second degree murder count against the appellant Quev-edo, and a charge of attempted murder of the same victim, occurring during the same barroom brawl, against Quevedo’s brother, was entirely harmless. The judgment under review is therefore affirmed. Sec. 924.33, Fla.Stat. (1979); see, Zeigler v. State, 402 So.2d 365 (Fla.1981); Harris v. State, 414 So.2d 557 (Fla. 3rd DCA 1982); Damon v. State, 397 So.2d 1224 (Fla. 3rd DCA 1981); compare Wilson v. State, 298 So.2d 433 (Fla. 4th DCA 1974), cert. dismissed, 327 So.2d 35 (Fla. 1976); Paul v. State, 385 So.2d 1371 (Fla. 1980).

In Wilson v. State it was held that the joinder of charges against two defendants in a single information was improper because the joinder of defendants met none of the criteria set forth in Florida Rule of Criminal Procedure 3.150(b). In response to the state’s harmless error argument the court said “The state’s argument that appellant has failed to show any prejudice resulting from the joint trial misses the mark. Procedural rights such as this are not to be granted or denied in the discretion of the court. They are vested rights the denial of which constitutes reversible error.” 298 So.2d at 435.

The opinion of the court below in the instant case merely says that “any violation" that may have occurred in the joinder of charges against the two defendants “affirmatively appears” to have been harmless. 413 So.2d at 137. The opinion does not say whether there was a violation of the rule. We cannot tell from the face of the district court’s opinion whether the alleged violation was of the same character or gravity as the error found in Wilson. Therefore, it cannot be clearly shown that the decision below expressly and directly conflicts with a decision of another district court of appeal.

Having concluded that we do not have jurisdiction to review the decision below, we must also conclude that the petition for review should not have been accepted. The petition for review is therefore denied.

It is so ordered.

ALDERMAN, C.J., and OVERTON and McDONALD, JJ., concur.

ADKINS, EHRLICH and SHAW, JJ., dissent.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Glenn T. HARRIS, Respondent.
    No. 62236.
    Supreme Court of Florida.
    July 28, 1983.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, Michael D. Powell, Bar Counsel, Fort Lauderdale, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Glenn T. Harris, 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 The Florida Bar Integration Rule 11.09(1) has been filed.

Having considered the pleadings and evidence the referee found as follows:

1. Respondent, Glenn T. Harris, is a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
As to Count I
2. On January 12, 1982, pursuant to Rules 11.02(4)(b) and 11.13(3)(b), article XI, of the Integration Rule of The Florida Bar, Wilson C. Atkinson, III, then Chairman of Seventeenth Judicial Circuit Grievance Committee “D”, issued a Subpoena Duces Tecum directed to Respondent commanding him to appear before Michael D. Powell, Assistant Staff Counsel, The Florida Bar, to testify with respect to Bar file number 17D82F39, and to bring with him at that time certain trust account records.
3. Such Subpoena Duces Tecum was individually served on Respondent on January 13, 1982.
4. Respondent failed to appear at the appointed date, time, and place, as required by such Subpoena Duces Tecum.
As to Count II
5. At some time prior to March 10, 1981, Charles M. McVaden delivered to Respondent an amount of cash in excess of $2,000.00 to be held in trust by Respondent and applied as directed by Mr. McVaden. '
6. Respondent did not deposit such funds into an attorney trust account, but rather maintained them in cash in a safe deposit box in a bank in Dade or Broward County, Florida.
7. Respondent did not maintain trust account records with respect to the funds held in the safe deposit box.
8. On or about March 10, 1981, James Branch, as the undisclosed agent for Mr. McVaden, and Gladys Cox entered into a contract, whereby Ms. Cox was to sell to Mr. Branch, or his assigns, designees, or nominees, and Mr. Branch was to purchase from Ms. Cox, certain real property lying and being situated in Monroe County, Florida, to wit:
Lot 21, Block 6, Revised Tropical Atlantic Shores, First Addition, Plantation Key, as recorded in Plat Book 5, Page 83, of the Public Records of Monroe County, Florida.
Such contract called for a $2,000.00 deposit to be held in escrow by the law firm of Harris & Mulry.
9. On or about March 10, 1981, Mr. McVaden instructed Respondent to segregate $2,000.00 of the funds he had previously delivered to Respondent to be held as and for the deposit under the contract entered into between Mr. Branch and Ms. Cox.
10. On or about March 10, 1981, Respondent executed such real estate contract acknowledging receipt of the $2,000.00 deposit required by such contract.
11. Thereafter, Respondent again failed to deposit the $2,000.00 into an attorney trust account, but rather continued to maintain such $2,000.00 in cash in the safe deposit box.
12. On or about June 24, 1981, Mr. Branch and Mr. McVaden having defaulted on the real estate contract, Ms. Cox made demand upon Mr. Branch and Respondent for delivery of the deposit money.
13. When Respondent failed to deliver the deposit money, Ms. Cox sued Mr. Branch and Respondent, obtaining a final judgment against Mr. Branch and Respondent for such funds on October 6, 1981, based upon a default entered October 1, 1981.
14. Respondent failed, and continues to fail, to deliver to Ms. Cox the funds he held in trust as the deposit under the real estate contract, despite Mr. McVaden having no objection to their payment.
As to Count III
15. Respondent has converted to his own use that part of the cash received from Mr. McVaden which was to be held in trust as and for the deposit under such real estate contract entered into between Mr. Branch and Ms. Cox.
As to Count IV
16. After being served with the complaint in Ms. Cox’s suit for the deposit money, Mr. Branch consulted with Respondent, who informed Mr. Branch that he would take care of the matter.
17. Based upon Respondent’s representations, Mr. Branch did not defend the suit by Ms. Cox.
18. Respondent did not take any action in response to Ms. Cox’s action either on behalf of Mr. Branch or himself.
As to Count V
19. At some time prior to November 4,1980, Joseph Robinson and Rose Robinson, his wife, retained Respondent to represent them in the purchase of certain real property lying and being situate in Broward County, Florida, to wit:
The Condominium Parcel known as Apartment 320 in Water Bridge Condominium 7, according to the Declaration of Condominium thereof, recorded in Official Records Book 8639, Pages 836 through 044 of the Public Records of Broward County, Florida.
As part of such representation Respondent was to provide to Mr', and Mrs. Robinson a title insurance policy on such real property.
20. On or about November 4,1980, the closing of such transaction took place at the office of the seller’s attorney. At such closing, Mr. and Mrs. Robinson, pursuant to Respondent’s instructions, delivered to the seller’s attorney a cashier’s check in the amount of $48,271.20, which was to be first applied to the cash to close of $47,602.20 and the remainder disbursed to Respondent.
21. A portion of the funds to be disbursed to Respondent by the seller’s attorney was to be used by Respondent to pay the premium on the title insurance policy Respondent was to obtain for Mr. and Mrs. Robinson.
22. On or at sometime after November 4,1980, the seller’s attorney delivered to Respondent the sum of $669.00, such being the difference between the amount tendered by Mr. and Mrs. Robinson and the cash necessary to close the real property transaction. Respondent failed to notify Mr. and Mrs. Robinson of the receipt of such funds.
23. Despite numerous demands, Respondent failed to provide Mr. and Mrs. Robinson with a title insurance policy for the real property they purchased. Mr. and Mrs. Robinson eventually obtained such title insurance policy through another attorney.
24. Despite several demands, Respondent failed, and continues to fail, to return to Mr. and Mrs. Robinson that portion of the funds indirectly received by Respondent from Mr. and Mrs. Robinson which was to be applied to the premium for the title insurance policy to be purchased for Mr. and Mrs. Robinson.
As to Count VI
25. On or about November- 6, 1981, Respondent issued to Steak & Ale, a restaurant located in Tamarac, Florida, his personal check, number 144, in the amount of $200.00, drawn upon Capital Bank, for which respondent received in return $200.00 in cash.
26. Such check, number 144, was deposited by Steak & Ale in its business account, but was subsequently returned to Steak & Ale because there were insufficient funds in Respondent’s account to pay such check.
27. Despite demand, Respondent failed, and continues to fail, to redeem such check, number 144.
28. On or about November 11, 1981, Respondent issued to Steak & Ale his personal check, number 149, in the amount of $300.00, drawn upon Capital Bank, for which Respondent received in return $300.00 in cash.
29. Such check, number 149, was deposited by Steak & Ale in its business account, but was subsequently returned to Steak & Ale because there were insufficient funds in Respondent’s account to pay such check.
30. Despite demand, Respondent failed, and continues to fail, to redeem such check, number 149.
31. On or about November 17, 1981, Respondent issued to Steak & Ale his personal check, number 150, in the amount of $300.00, drawn upon Capital Bank, for which Respondent received in return $300.00 in cash.
32. Such check, number 150, was deposited by Steak & Ale in its business account, but was subsequently returned to Steak & Ale because there were insufficient funds in Respondent’s account to pay such check.
33. Despite demand, Respondent failed, and continues to fail, to redeem such check, number 150.
As to Count VII
34. Sometime during late July or early August, 1981, Doris Hernandez retained Respondent to represent her in an action filed against her by Parkway General Hospital. At that time, Mrs. Hernandez delivered to Respondent the summons and complaint seived upon her in that action.
35. Several times before the final hearing date, which was set for August 31, 1981, Mrs. Hernandez attempted to contact Respondent concerning her case, but was unsuccessful.
36. On or about August 31, 1981, the final hearing was held in Mrs. Hernandez’s case. Respondent failed to appear, as did Mrs. Hernandez, she being unsure as to the date, time, and place of the hearing due to Respondent having her papers.
37. At some time subsequent to the scheduled hearing date in her case, Mrs. Hernandez was able to speak with Respondent, who told her he would take care of the matter.
38. During November, 1981, a default judgment was entered against Mrs. Hernandez.

The referee recommends that respondent be found guilty of misconduct justifying disciplinary measures and recommends that respondent be disbarred from the practice of law in the State of Florida.

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

Accordingly respondent, Glenn T. Harris, is hereby disbarred from the practice of law in the State of Florida effective August 29, 1983, thereby giving respondent 30 days to close out his practice and take the necessary steps to protect his clients. Respondent shall not accept any new business.

Costs in the amount of $1,473.85 are hereby taxed against respondent.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OVERTON, MCDONALD and EHRLICH, JJ., concur.


author: OVERTON, Justice.

text:
    DEPARTMENT OF TRANSPORTATION, Petitioner, v. COURTELIS COMPANY, Respondent.
    No. 62331.
    Supreme Court of Florida.
    July 28, 1983.
    Margaret-Ray Kemper, Appellate Atty., Charles G. Gardner, Trial Atty., and John H. Beck, Gen. Counsel, Dept, of Transp., Tallahassee, for petitioner.
    Jay D. Schwartz of Malspeis, Lococo, Brown & Schwartz, North Miami, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Third District Court of Appeal reported as Courtelis Co. v. Department of Transportation, 415 So.2d 826 (Fla. 3d DCA 1982), which we find directly conflicts with our recent decision in Department of Business Regulation, Division of Pari-Mutuel Wagering v. Hyman, 417 So.2d 671 (Fla.1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The issue concerns the entry of a final order by the Department of Transportation 111 days after the hearing officer issued his recommended order. The Department’s final order was entered in violation of that part of section 120.59(1), Florida Statutes (1981), which directs that an agency’s final order be entered within ninety days after a recommended order is submitted to the agency and mailed to the parties. Respondent appealed and the district court, following its decision in Hyman v. State, Department of Business Regulation, 399 So.2d 1098 (Fla. 3d DCA 1981), reversed the Department’s final order. In Hyman, the district court held that a violation of the ninety-day statutory requirement “per se renders unenforceable an agency order in a proceeding in which the agency is the protagonist.” Id. at 1099. We in turn disapprove the district court decision because, subsequent to their decision in the instant case, this Court reversed the district court’s decision in Hyman. Department of Business Regulation, Division of Pari-Mutuel Wagering v. Hyman, 417 So.2d 671 (Fla. 1982). We rejected the district court’s per se invalidity construction of the statute and we concluded that an agency’s violation of the ninety-day period set forth in section 120.59(1) did not make the agency’s final order invalid unless the delay impaired the fairness of the proceeding or the correctness of the action, thereby resulting in prejudice to the adverse party. Accordingly, we quash the decision of the district court in the instant case, including its order for attorney’s fees. We remand for application of our decision in Hyman and for consideration on the merits of the other issue raised in the initial appeal.

It is so ordered.

ALDERMAN, C.J., and BOYD, MCDONALD, EHRLICH and SHÁW, JJ., concur.

ADKINS, J., dissents.


text:
    Melvin J. COMBS, Petitioner, v. STATE of Florida, Respondent.
    No. 62834.
    Supreme Court of Florida.
    July 28, 1983.
    Howard H. Babb, Jr., Public Defender and Laura Melvin, Asst. Public Defender, Fifth Judicial Circuit, Ocala, for petitioner.
    Jim Smith, Atty. Gen. and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for respondent.
   BOYD, Justice.

We have for review a decision of a district court of appeal, Combs v. State, 420 So.2d 316 (Fla. 5th DCA 1982), which announced as a rule of law that a district court of appeal can review by certiorari appellate decisions of circuit courts only if they have the effect of denying appellate review. Since we find this rule of law to be in direct conflict with the rule announced in Ellison v. City of Fort Lauderdale, 183 So.2d 193 (Fla.1966), and Mathews v. Metropolitan Life Insurance Co., 89 So.2d 641 (Fla.1956), we have jurisdiction. Art. V, § 3(b)(3), Fla. Const.; Mancini v. State, 312 So.2d 732 (Fla.1975); Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). We therefore grant the petition for review for the purpose of expunging language in the district court of appeal opinion that directly conflicts with our earlier decisions. See Government Employees Insurance Co. v. Grounds, 332 So.2d 13 (Fla.1976).

In this case Melvin Combs was convicted in county court of driving while intoxicated. At the trial a police officer testified that while he was working on an accident report concerning a parked car, Combs approached him. The officer testified that when he asked Combs to state his business Combs said he was the driver of the vehicle that ran into the parked car. In addition, Nathan Hall, the owner of the parked car, testified that Combs admitted to backing into his truck. Combs objected to the admission of these statements on the grounds that they were made to fulfill his statutory duty to make an accident report under sections 316.063 and 316.066, Florida Statutes (1981), and were therefore privileged under section 316.066(4). The trial court overruled the objections. On appeal the circuit court affirmed, finding

that the privilege conferred by Florida Statute 316.066 prohibits only the introduction of the written report prepared by the officer investigating an accident and does not protect statements made by the Appellant to the officer. Of greater impact, however, is the fact that the statements made by the Appellant were not in response to any question propounded by the officer or Mr. Hall as the operator of the unattended, damaged vehicle; the Appellant’s admissions were not in the form of a report and were spontaneous and voluntary. The Appellant was not obligated to tell either the officer or Mr. Hall that he was the driver of the vehicle involved in the accident. Under these facts the admissions, therefore, are not privileged under Florida Statute 316.066. Furthermore, it was not the intent of the Legislature to extend the Accident Report Privilege to Florida Statute 316.063. Therefore, the Appellant’s admission to Nathan Hall was properly admitted into evidence as was the testimony of Officer Watson.

Combs filed a petition for writ of certio-rari with the District Court of Appeal, Fifth District. In denying the petition, the district court stated:

Whether or not the county court and the circuit court were in error in their determinations regarding the admissibility of these statements is not for us to decide. Certiorari is not the vehicle for us to review alleged errors of law made by a circuit judge sitting in review of county court judgments. There is no vehicle for that review. The decision of the circuit court is final and not reviewable....
The only thing we can take by certiora-ri in this type of case is an alleged “departure from the essential requirements of law” which essentially amounts to violations of due process rights; that is, violations which effectively deny appellate review such as the circuit judge rendering a decision without allowing briefs to be filed and considered, a circuit judge making a decision without a record to support the decision, Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979), or the circuit court dismissing an appeal improperly. Lynch v. State, 409 So.2d 133 (Fla. 5th DCA 1982).

420 So.2d at 317.

We find that the district court has taken too narrow a view of what constitutes a “departure from the essential requirements of law.” The use of this phrase has generated much confusion; we recognize that some of the confusion results from conflicting language in some earlier decisions of this Court. See City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980); see generally Haddad, The Common Law Writ of Certiorari in Florida, 29 U.Fla.L. Rev. 207 (1977); Rogers and Baxter, Certiorari in Florida, 4 U.Fla.L.Rev. 477 (1951). Some decisions have held that there is a difference between the standard used in granting common-law certiorari — departure from the essential requirements of law— and the standards used in reviewing legal error on appeal. See, e.g., Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976); American National Bank of Jacksonville v. Marks Lumber & Hardware Co., 45 So.2d 336 (Fla.1950). Other decisions have ignored the distinctions between these two standards, using them interchangeably. See, e.g., In re Camm, 294 So.2d 318 (Fla.), cert. denied, 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972); Goodkind v. Wolkowsky, 151 Fla. 62, 9 So.2d 553 (1942); Biscayne Beach Theatre, Inc. v. Hill, 151 Fla. 1, 9 So.2d 109 (1942).

These conflicting decisions result from this Court’s efforts to clothe the decisions of all appellate courts with finality while at the same time providing a means for review in those few extreme cases where the appellate court’s decision is so erroneous that justice requires that it be corrected. At first, efforts were made to categorize errors reviewable by common-law certiorari by their nature. The Court stated that a writ of common-law certiorari should only be issued where there was an “illegality of procedure, not an erroneous proceeding.” American National Bank of Jacksonville v. Marks Lumber & Hardware Co., 45 So.2d at 337. However, it soon became apparent that procedural errors were not the only ones so egregious as to require this Court to review an appellate court’s decision. In Mathews v. Metropolitan Life Insurance Co., 89 So.2d 641 (Fla.1956), this Court espoused

the view that the duty of a trial judge to apply to admitted facts a correct principle of law is such a fundamental and essential element of the judicial process that a litigant cannot be said to have had the “remedy, by due course of law,” guaranteed by Section 4 of the Declaration of Rights of our Constitution, F.S.A., if the trial judge fails or refuses to perform that duty.... And, indeed, it is unthinkable that this court, in the exercise of its supervisory jurisdiction over other courts, could not compel adherence to, a principle of law heretofore established by this court in the unlikely event that a trial judge should deliberately and consciously refuse to follow our decision, even though the trial judge’s arbitrarily erroneous action in this respect had been approved and affirmed by a circuit court on appeal.

Id. at 642. Similarly, in Ellison v. City of Fort Lauderdale, 183 So.2d 193 (Fla.1966), this Court held that the district courts of appeal should not be limited to reviewing procedural errors in granting writs of cer-tiorari to review appellate decisions of the circuit courts. In that case, as in this one, the petitioner’s conviction was affirmed by the circuit court and the district court of appeal denied certiorari on the ground that the alleged error did not pertain to the trial court’s jurisdiction or the regularity of procedure. The Court quashed the district court’s decision, holding that common-law certiorari can be used to review a conviction brought about by an unconstitutional ordinance.

Hence the phrase “departure from the essential requirements of law” should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari. See Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974). A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law. See Mystan Marine, Inc. v. Harrington, 339 So.2d 200 (Fla.1976). The district courts should use this discretion cautiously so as to avert the possibility of common-law certiorari being used as a vehicle to obtain a second appeal.

Although in this case the district court of appeal erred in holding that it only had jurisdiction to review violations which effectively deny appellate review, it did not err in denying the petition for common-law certiorari. The petitioner asserted that the circuit court departed from the essential requirements of law by affirming a judgment based upon statements admitted into evidence in violation of section 316.066. Petitioner correctly points out that the circuit judge was wrong in stating that the privilege conferred by section 316.066 only applies to the introduction of the written report of the investigating officer. See State v. Coffey, 212 So.2d 632 (Fla.1968). The trial court also erred by concluding that petitioner was not obligated to tell either the officer or Mr. Hall that he was the driver of the vehicle involved in the accident.

However, the trial court did not err by concluding that the statements were not privileged under section 316.066. That section specifically provides that the privilege does not extend to statements disclosing “the identity of a person involved in an accident.” See Wise v. Western Union Telegraph Co., 177 So.2d 765 (Fla. 1st DCA 1965). Since the trial court reached the right result, albeit for the wrong reasons, the affirmance of the judgment by the circuit court on appeal did not depart from the essential requirements of law. Health Clubs Inc. v. Englund, 376 So.2d 453 (Fla. 5th DCA 1979).

We therefore approve the district court’s decision to deny certiorari but disapprove and expunge those statements in the opinion which conflict with this opinion.

It is so ordered.

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


author: BASKIN, Judge. JORGENSON, Judge, DANIEL S. PEARSON, Judge. NESBITT, Judge BASKIN, Judge HUBBART, Judge

text:
    Gloria TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 81-394.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    On Rehearing En Banc Aug. 2, 1983.
    Sweetapple & Kamilar and Robert A. Sweetapple, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.

       FERGUSON, J., did not participate in the decision of the court.

   BASKIN, Judge.

Due process violations require reversal of Gloria Taylor’s probation revocation. The affidavit alleged that she violated her probation by committing an armed robbery of Michele Peletier. At the beginning of the probation violation hearing, the court permitted the state to change the name of the victim to “Darlene Mack and/or Denise Sor-tini.”

Defense counsel argues that, after the trial court refused to preclude defendant’s new counsel from taking Darlene Macks’s deposition, the state failed to furnish her correct address. The state’s conduct, he asserts, undermined his preparation because he relied upon the state’s allegation that Michele Peletier was the victim of the offense charged. Michele Peletier had failed to appear when noticed for deposition, and the surprise amendment of the affidavit prejudiced the defense. We agree that the trial court erred in refusing to allow defense counsel an opportunity to prepare for the substantive change in the charging document and that the denial deprived defendant Taylor of due process of law. Cuciak v. State, 410 So.2d 916 (Fla.1982); see Hines v. State, 358 So.2d 183 (Fla.1978).

In addition, we note that the order revoking probation states that defendant Taylor committed an armed robbery against Michele Peletier. Since Michele Peletier neither appeared nor testified at the hearing and no evidence of any crime against Pele-tier was presented, the trial court’s order revoking probation is reversed on that ground as well.

Reversed and remanded.

JORGENSON, Judge,

dissenting.

I respectfully dissent.

The amendment of the affidavit of violation of probation was not prejudicial to this defendant, nor has the record been properly preserved for our review. Nelson v. State, 85 So.2d 832 (Fla.1956); Constantino v. State, 224 So.2d 341 (Fla. 3d DCA 1969).

The affidavit of violation of probation was properly amended prior to the taking of any testimony so as to reflect the name of the true victim, Darlene Mack, whose deposition had previously been taken by prior counsel and who was a named victim in the information in the substantive case. I fail to see how the granting of the motion to amend the affidavit of violation of probation does anything other than prevent a defense “gotcha”.

The applicable provision of Fla.R.Crim.P. 3.220(d), dealing with discovery depositions by the defendant, makes no mention of multiple depositions of the same witness. The trial court simply did not err when it refused to grant a continuance for the taking of a second deposition of ■ the victim/witness who had been previously deposed. Repetitive depositions can serve only to further disenchant the public with the processes of the criminal justice system.

This record demonstrates that the defendant had the benefit of a discovery deposition of the victim, taken by predecessor counsel. That deposition was used for impeachment purposes during the course of the hearing below. The victim identified the defendant shortly after the robbery.

The identification was buttressed by the victim’s detailed description of the defendant, including an unusual birthmark over the eye. This information was given to the police prior to the defendant’s apprehension. The victim’s, identification of the defendant, both at the scene and in court, was unequivocal. Field confrontation is inherently more reliable than any subsequent identification. State v. Freher, 366 So.2d 426 (Fla.1978); Miller v. State, 403 So.2d 1017 (Fla. 5th DCA 1981). Given the totality of the identification procedure in the field and the subsequent in-court identification, no error has been demonstrated. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

Since the trial court properly amended the affidavit of violation, the error in the order of revocation should be cured by a consistent amendment reflecting the name of the true victim.

I would affirm.

Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BAS-KIN, DANIEL S. PEARSON and JOR-GENSON, JJ.

ON REHEARING EN BANC

DANIEL S. PEARSON, Judge.

We grant the State’s motion for a rehearing en banc to review the panel decision, which we find to be in conflict with Stevens v. State, 351 So.2d 1077 (Fla. 3d DCA 1977), aff’d and quashed in part on other grounds, 372 So.2d 1370 (Fla.1979)., We vacate the panel decision and affirm the trial court’s order revoking the defendant’s probation.

The affidavit for violation of Taylor’s probation charged in pertinent part that “on or about April 24, 1980, in Dade County, Florida, the probationer did commit the Offense of Armed Robbery against Michelle Peletier in violation of Florida Statutes .... ” The corresponding information charged the defendant with committing the substantive offense of armed robbery on that date in Dade County and named the victims as being Darlene Mack and Denise Sortini. Before the commencement of the probation violation hearing, the Assistant State Attorney moved to amend the affidavit so as to accurately reflect the names of the victims as Mack and Sortini. He explained that Mrs. Mack and her fifteen-year-old daughter, Denise Sortini, were using a vehicle which Mack had borrowed from Peletier when they were held up by the defendant. Of course, defense counsel already knew this, because five months earlier Mack and Sortini had been deposed in preparation for the trial on the substantive charge contained in the information. Notwithstanding this knowledge, defense counsel reflexively recited the litany of “no notice,” “untimely,” “surprise,” and “prejudice” to the State’s motion to amend. The litany was belied not only by what defense counsel knew, but by the fact that only moments before he was insistent that the substantive trial precede the probation violation hearing. In the words of the prosecutor:

“I don’t see any prejudice to the Defendant. ... [H]e wants to proceed on the substantive case first and [now] he says that he is not prepared to proceed with the victims who are stated in the Information. That just doesn’t seem to make any sense.”

Indeed, it did not make any sense, and the trial judge allowed the affidavit to be amended.

The hearing proceeded. The State called several witnesses, including Mrs. Mack. She identified the defendant as being one of the two people who stole the vehicle at gunpoint. Defense counsel extensively cross-examined her, effectively utilizing her prior sworn deposition to refresh her recollection or to impeach her. Defense counsel then called as his witness the other victim of the crime, Denise Sortini, confident that he could elicit from her testimony that (a) the entire incident took two or three minutes (not, as Mack had testified, ten or fifteen minutes); (b) she noticed nothing unusual about the defendant’s face (not, as Mack had testified, that the defendant had a severely bruised left eye); and (c) unlike Mrs. Mack, Denise could not identify the defendant immediately after Taylor’s arrest. Defense counsel’s confidence arose, obviously, from the fact that Denise had previously made such statements in her sworn deposition to which defense counsel generously referred whenever Denise wavered from her expected trial testimony.

Counsel followed this by calling two witnesses, Veronica Martin and Jill Brown, to establish an alibi for the defendant and, incidentally, to refute Mrs. Mack’s testimony that the defendant’s left eye was bruised. The defendant then testified that she was with Veronica, Jill and others at someone’s home during the time that the robbery was said to have occurred. Only with complete knowledge of the victims’ expected testimony would this alibi defense have been possible.

We do not think it could be any clearer that the defendant, through the substantive charge contained in the information and through the depositions of Mack and Sorti-ni, had actual notice that Mack and Sortini were the sole victims of the armed robbery and that Peletier, despite being named as a victim in the affidavit, was merely the owner of the vehicle borrowed by Mack. Had the State proceeded to a hearing on the affidavit naming Peletier as the victim and proved, instead, that Mack and Sortini were the actual victims, Stevens v. State would compel us to reject the defendant’s claim that the variance was fatal, since it so clearly appears that the defendant was neither misled nor embarrassed in the preparation of her defense. See Hines v. State, 358 So.2d 183 (Fla.1978). The amendment of the affidavit before the hearing had the totally immaterial effect of changing the label placed on the result from “nonprejudicial variance” to “nonprejudicial amendment.”

Moreover, we simply cannot discern what discovery rule the defendant contends was violated. Certainly there could be no violation by the State’s failure, if it occurred, to furnish Mrs. Mack’s correct address to the defendant, long after Mrs. Mack had been deposed. Certainly any contention that the defendant was entitled to separately depose Mrs. Mack for the probation violation hearing after she had been deposed in connection with the substantive charge is completely frivolous in light of Cuciak v. State, 410 So.2d 916 (Fla.1982), which allows for discovery in probation revocation hearings only where such hearings are not bottomed on offenses which are simultaneously the subject of criminal proceedings in which discovery is provided for by rule. Certainly Michele Peletier’s failure to appear for deposition at most would preclude the State from calling her as a witness in the probation revocation hearing, which the State had no interest in doing. But if some violation arguably occurred, we cannot imagine a case in which the violation is so definitively nonprejudicial. Defense counsel knew who the victims of the robbery were and was thoroughly prepared through their depositions to examine and cross-examine them.

Finally, defendant’s claim that the written order revoking probation mistakenly identified Peletier as the victim is hardly a basis for reversal. That order can simply be corrected on remand. Boggs v. Wainwright, 223 So.2d 316 (Fla.1969); Perry v. State ex rel Mills, 357 So.2d 425 (Fla. 3d DCA 1978); Luhrs v. State, 394 So.2d 137 (Fla. 5th DCA 1981).

Accordingly, we affirm the order revoking the defendant’s probation and remand the case to the trial court with directions to correct the order to reflect the names of the victims of the robbery.

NESBITT, Judge

(specially concurring):

I concur with the majority opinion in granting the state’s motion for rehearing en banc, but write to express my views on the scope of the en banc rule. As I view it, there were two bases for the original majority’s conclusion that the defendant’s due process rights were violated. First, the trial court erred in allowing the state to amend the affidavit to change the name of the victim. Second, the defendant was prejudiced by the failure of the state to provide Darlene Mack’s correct address after the court refused to preclude defense counsel from retaking that witness’ redeposition. These errors, the original majority found, combined to create a due process infringement.

I agree with Judge Pearson that the ruling on the first issue is in conflict with this court’s decision in Stevens v. State, 351 So.2d 1077 (Fla. 3d DCA 1977), aff’d and quashed in part on other grounds, 372 So.2d 1370 (Fla.1979). In Stevens, the court found that since the defendant had actual notice of the offense charged and of the proper address, the defendant was not denied the minimal criterion of due process required in a probation revocation hearing. In the present case, the defendant had actual notice of the name of the victim where the victim’s deposition was taken by the defendant’s prior counsel and she was the named victim in the information in the substantive case. Accordingly, I agree with the majority that there is a conflict on this issue of the type contemplated by Florida Rule of Appellate Procedure 9.331, Schreiber v. Chase Federal Savings & Loan Ass'n, 422 So.2d 911, 914-22 (Fla. 3d DCA 1982) (en banc) and Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc).

Having determined that this court has a valid basis upon which to exercise its jurisdiction, I find that it is our responsibility to resolve all other questions necessary to the complete determination of the appeal. This procedure is one which has been utilized by the supreme court for many years. See Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Zirin v. Charles Pfizer & Co., 128 So.2d 594 (Fla.1961). As this court recognized in Schreiber v. Chase Federal Savings & Loan Ass’n, supra, at 914, “the power to be exercised by a district court of appeal must be the same as formerly exercised by the Supreme Court.” Additionally, there are sound reasons for determining all issues once valid jurisdiction has been obtained.

Needless steps in litigation should be avoided wherever possible and courts should always bear in mind the almost universal command of constitutions that justice should be administered without “sale, denial or delay.” Piecemeal determination of a cause by our appellate court should be avoided and when a case is properly lodged here there is no reason why it should not then be terminated here. In the Lissenden case [P.C. Lissenden Co., Inc. v. Board of County Commissioners of Palm Beach County, 116 So.2d 632, 636 (Fla.1959) ] we said, with respect to appeals and in discussing an analogous matter “[mjoreover, the efficient and speedy administration of justice is * * * promoted” by doing so.

Zirin v. Charles Pfizer & Co., supra, at 596. If we did not resolve all issues presented by the appeal, we would stultify the purpose of the en banc rule which is to maintain uniformity in this court’s decisions.

Consequently, while I agree with Judge Pearson that our en banc authority has been activated to hear the present case, I do so only for the reasons stated herein.

BASKIN, Judge

(dissenting).

I am unconvinced by the majority opinion, which strikes me as cavalier in its disdain for due process of law for Gloria Taylor. First, it grants rehearing en banc when neither conflict nor lack of uniformity exists and then it condones the trial court’s arbitrary rulings. Specifically, the trial court permitted a last minute substantive change in the charging document, refused to permit defense counsel time to prepare for the altered charge, permitted witnesses who had failed to respond to subpoena to testify without inquiry as to prejudice, entered a conviction totally unsupported by evidence and entered a defective order revoking probation. This demonstration of a rush to judgment is unacceptable under the law. I therefore dissent, adhering to the views expressed in my original opinion and, in addition, responding to newly raised points.

Implicitly acknowledging that the cases cited by the state presented no valid basis for en banc review, the majority foraged for a substitute and conjured up a lack of uniformity with Stevens v. State, 351 So.2d 1077 (Fla. 3d DCA 1977) aff’d and quashed in part on other grounds, 372 So.2d 1370 (Fla.1979). Not even an imaginative reading of Stevens will support the factual similarity necessary to find a lack of uniformity with Taylor’s case. Accordingly, I find en banc review inappropriate.

In seeking a rehearing en banc, the state cited authorities which supported the proposition that an incomplete record should not result in reversal. I fail to understand how this record could be considered incomplete. Is the state suggesting that a deposition that was never taken must be included in the record? Under these circumstances, I am forced to conclude that the majority granted rehearing, not because of conflict or lack of uniformity, but because the court believed the record was incomplete. Even if the authorities cited by the state were applicable to the facts, they no longer govern. Florida Rule of Appellate Procedure 9.200(f)(2), now provides:

If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record had been given.

Thus, the state has provided no basis for en banc hearing.

Turning to the merits of Gloria Taylor’s appeal, it appears to me that reversible error occurred throughout the proceedings. First, immediately prior to the commencement of the probation revocation hearing, the court permitted the state to amend the affidavit charging a violation of probation. Michelle Peletier had originally been listed as the victim of the offense. When the violation hearing commenced, the court permitted the state to amend the charge to name Darlene Mack, the individual who had formerly been listed as a witness and who had failed to appear for deposition, as the victim of the offense. The court not only refused counsel an opportunity to prepare for the substantive change in the charging document, it also neglected to conduct a hearing to determine whether Taylor was prejudiced by the failure of the witnesses to appear for deposition. Florida Rule of Criminal Procedure 3.220(a) does not preclude the retaking of a deposition rendered necessary by the change of counsel. Although her former attorney had taken depositions, Taylor’s new counsel considered them inadequate and subpoenaed the witnesses. The state filed a motion to quash the subpoenas but the court denied the motion. Despite the failure of the witnesses to appear for deposition, the court permitted them to testify. Under these circumstances, I believe the court should have inquired into the question of prejudice, especially since the state furnished defense counsel incorrect addresses.

The next error appears in the order revoking probation. Despite the fact that the orally-amended affidavit named Darlene Mack as the victim, the court entered an order revoking probation for an armed robbery upon Michelle Peletur [sic]. Thus, the amendment and the order revoking probation are inconsistent. On the other hand, if the amendment is disregarded and the victim of the offense was Michelle Peletier, the revocation of probation cannot stand because the state offered no evidence of an offense upon Michelle Peletier. Consequently, either considering or disregarding the amendment, I find the order revoking probation erroneous. See Cross v. State, 369 So.2d 685 (Fla. 4th DCA 1979); see generally Bernhardt v. State, 288 So.2d 490 (Fla.1974).

The majority’s conclusion that defendant Taylor was neither misled nor embarrassed in the preparation of her defense is immediately suspect when one realizes that the trial court did not conduct a hearing directed to the issue. In fact, this court’s seeming ability to decide upon intuition closely resembles a predisposition to conclude without trial that defendant Taylor was guilty.

For these reasons I would deny rehearing en banc.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would deny the state’s motion for rehearing en banc because, in my view, the panel decision herein creates no intra-district conflict of decisions sufficient to invoke our extraordinary en banc jurisdiction under Fla.R. App.P. 9.331(a). Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc); see also Schreiber v. Chase Federal Savings & Loan Assn., 422 So.2d 911, 914-16 (Fla. 3d DCA 1982) (en banc) (Nesbitt, J., dissenting).

First, it is plain that the panel decision cannot possibly create an intra-district conflict with Burau v. State, 353 So.2d 1183 (Fla. 3d DCA 1977); Abascal v. State, 345 So.2d 397 (Fla. 3d DCA 1977); Costantino v. State, 224 So.2d 341 (Fla. 3d DCA 1969), as urged by the state in its motion for rehearing en banc, because these cases all involve a point of appellate practice which no longer represents good law today. They stand for the proposition that an appellate court is compelled to affirm a trial court judgment based on an incomplete appellate record. Fla.R.App.P. 9.200(f)(2), which supersedes these cases, has since been promulgated. This rule provides:

“If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given.” (emphasis added)

The committee note to this section of the rule states in part:

“The new rule is intended to assure that appellate proceedings will be decided upon their merits.... This rule is intended to assure that any portion of the record before the lower tribunal which is material to a decision by the court will be available to the court. It is specifically intended to avoid those situations which have occurred in the past where an order has been affirmed because appellate counsel failed to bring up the portions of the record necessary to determine whether or not there was an error.” (emphasis added)

It is therefore clear, beyond any hope of successful contradiction, that the above cases in no way conflict with the panel decision in the instant case.

Secondly, it is equally plain that the panel decision creates no intra-district conflict with Stevens v. State, 351 So.2d 1077 (Fla. 3d DCA 1977), aff’d and quashed in part on other grounds, 372 So.2d 1370 (Fla.1979), as urged by Judge Pearson in his en banc opinion for the court herein. In Stevens, we held that the defendant probationer was adequately notified of the alleged probation violation notwithstanding an error in the probation revocation affidavit as to the exact address of a robbery charged therein when: (a) “[djefense counsel did not allege that he was unprepared for the revocation hearing,” 351 So.2d at 1081, and (b) defense counsel had “actual notice of the correct address” of the charged robbery and was not “embarrassed or misled in the preparation or presentation of his defense.” 351 So.2d at 1081. In the instant case, we deal with a far more serious error in the probation revocation affidavit, to wit: an error in the identity of the victim of the charged robbery; moreover, defense counsel, unlike counsel in Stevens, strongly protested a last minute amendment to the probation revocation affidavit on the ground that he was unprepared to go forward on that basis. Plainly, this case does not have substantially the same controlling facts as Stevens, and, therefore, the two cases cannot create a conflict sufficient to invoke our en banc jurisdiction under the strict criteria established by this court in Finney v. State, supra.

I would deny the state’s motion for rehearing en banc.

HENDRY, Judge, concurs.

      . Michelle Peletier was the registered owner of the motor vehicle which was the subject matter of the armed robbery. It should be noted further that the issue in this case, as framed by the defense, was identiñcation of the accused, not identity of the victim.

      . State v. Anders, 388 So.2d 308 (Fla. 3d DCA 1980); State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980); Salcedo v. Association Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979).

      . The effect of continuances upon victim and witness is well-documented by Frank Carring-ton in his stirring work, The Victims, where he states:
      Nothing can weaken the resolve of victims and witnesses more quickly than to be required to appear at the criminal courts building time after time only to be told that the case has been continued again. In addition to the delay and aggravation, the victims and witnesses «often lose many days of work. Even the most conscientious of them may finally decide that the simple economics of the situation finally dictates that they can no longer afford to show up in court.
      Frank Carrington, The Victims, 146 (1975).

      .The majority does not address the sufficiency of the defendant’s “motion to suppress show-up identification”, which is, in my view, patently defective. See Fla.R.Crim.P. 3.190(h)(2). Thus, I do not reach that issue.

      .This court declared in Stevens that even where the affidavit of probation misidentifies the place where the robbery occurred, no due process rights of the probationer are violated where the record shows that the probationer had actual notice of the correct location of the crime. In Stevens, as in the present case, the record reflected:
      “that [defense] counsel did have advance notice that the alleged probation violation consisted of the same robbery ... charged in the information. At the time of the probation revocation hearing, the prosecutor stated that [defense] counsel had been notified ‘as to what the probation violation would consist of, and that being the ... robbery case.’ The trial court decided to proceed with the hearing.”
      This court held in Stevens:

      “The allegation that the revocation was based upon an offense not charged in the affidavit, stems from the fact that the affidavit of violation contains an incorrect street number for the Publix which was robbed. We find that this is not a fatal variance since Stevens had actual notice of the correct address, and the record fails to reveal a possibility that he was embarrassed or misled in the preparation or presentation of his defense. [citations omitted]. The defendant was not denied the minimal criterion of due process guaranteed by law in probation revocation proceedings.” 351 So.2d at 1081.

      . Under the less restrictive test proposed by Judge Schwartz in Schreiber v. Chase Federal Savings & Loan Association, 422 So.2d 911 (Fla. 3d DCA 1982), en banc review would be activated when it appears that panel decisions lack uniformity, that is, are “so inconsistent and disharmonious that they would not have been rendered by the same panel of the court.” Id. at 912 n. 1. The panel decision is at least disharmonious, if not in actual conflict, with the rules that (a) a variance between what is alleged in the charging document and the proof at trial is immaterial where there is no prejudice to the defendant, Isom v. State, 387 So.2d 529 (Fla. 3d DCA 1980); Sharp v. State, 328 So.2d 503 (Fla. 3d DCA 1976); and (b) an amendment to an information or a statement of particulars is permitted where defendant is aware that the State’s proof would relate to the date set forth in the amendment, and thus, no harm or prejudice would result. Holland v. State, 359 So.2d 28 (Fla. 3d DCA 1978).

      . The depositions were taken on May 29, 1980, almost five months before the probation revocation hearing held on October 27, 1980.

      . In probation revocation proceedings, the failure of the trial court to conduct a Richardson hearing does not require reversal where the appellate court finds to its satisfaction that the error is harmless. Cuciak v. State, 410 So.2d 916.

      . These cases define decisional conflict as it was articulated in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960).

      . Between 1956 and 1972.

      .If, in exercising this jurisdiction, we create or remain in conflict with a supreme Court or another district court of appeal decision, the supreme court has jurisdiction to resolve that conflict. Art. V, § 3(b)(3), Fla. Const. (1980).

      * The committee note to this section of the rule states, in part:
      The new rule is intended to assure that appellate proceedings will be decided upon their merits .... This rule is intended to assure that any portion of the record before the lower tribunal which is material to a decision by the court will be available to the court. It is specifically intended to avoid those situations which have occurred in the past where an order has been affirmed because appellate counsel failed to bring up the portions of the record necessary to determine whether or not there was an error.


text:
    BANNER SUPPLY COMPANY, Appellant, v. EVE SEAVIEW, INC. and Frank Del Rey, Appellees.
    No. 82-388.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Herman T. Isis, Coral Gables, for appellant.
    Raul Carreras, Jr., Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

We find no basis in the record for the trial court’s refusal to impose a mechanic’s lien upon the realty improved with the materials supplied by the appellant. Fell v. Messeroff, 145 So.2d 238 (Fla. 3d DCA 1962); Sec. 713.28, Fla.Stat. (1981). The cause is therefore remanded with directions to enter such a lien for the amount of the judgment already rendered below and for further proceedings consistent herewith.


text:
    Robert DIX, Appellant, v. STATE of Florida, Appellee.
    No. 82-1538.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1982.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Alexander v. State, 422 So.2d 25 (Fla. 2d DCA 1982).

OTT, C.J., and RYDER and DANAHY, JJ., concur.


text:
    Harold HAMMOCK, Appellant, v. STATE of Florida, Appellee.
    No. 82-2329.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1982.
   PER CURIAM.

Affirmed. Knight v. State, 394 So.2d 997 (Fla.1981).

GRIMES, A.C.J., and SCHEB and LE-HAN, JJ., concur.


author: PER CURIAM. BASKIN, Judge

text:
    Gregory SINGLETON, Petitioner, v. The Honorable Howard GROSS, Judge of the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, Respondent.
    No. 82-2017.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen. and Scott Silver, Asst. Atty. Gen., for respondent.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

This is an original petition for a writ of prohibition wherein petitioner Gregory Singleton seeks to restrain the respondent Howard Gross, as a judge of. the Circuit Court for the Eleventh Judicial Circuit of Florida, from trying the petitioner on certain criminal charges on the ground that petitioner’s speedy trial rights have been denied. Contrary to the state’s contention herein, we have jurisdiction to entertain this petition. Art. V, § 4(b)(3), Fla.Const.; V.C. v. Ferguson, 422 So.2d 861 (Fla. 3d DCA 1982), rev. granted, 427 So.2d 722 (Fla. 1983), contra, Sherrod v. Franza, 396 So.2d 1136 (Fla. 4th DCA), rev. granted, 427 So.2d 161 (Fla.1983). For the reasons which follow, we deny the petition for a writ of prohibition and discharge the rule nisi.

The respondent trial judge held below, and we agree, that the petitioner Singleton was unavailable for trial under Fla. R.Crim.P. 3.191(e) when he failed to appear in court pursuant to proper notice to be tried on certain felony charges pending before the respondent judge within a 180-day time period subsequent to petitioner’s arrest. He was, therefore, not entitled to a discharge under either Fla.R.Crim.P. 3.191(a)(1) or Fla.R.Crim.P. 3.191(d)(3) for failure to be tried within the said 180-day time period. It appears from the record that the petitioner, unbeknowst to the state attorney and court below, was incarcerated at the Broward County Jail at the time of his trial date. As such, the petitioner was not, in our view, available for trial as the proper state authorities had no actual notice as to the petitioner’s whereabouts.

The petitioner relies on a line of cases which have held that a criminal defendant is not unavailable for trial merely because he is incarcerated in a county jail in another jurisdiction in this state. Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982); Richardson v. State, 340 So.2d 1198 (Fla. 4th DCA 1976); Ramos v. Amidon, 263 So.2d 602 (Fla. 2d DCA 1972). In each of these cases, however, the state attorney and trial court were aware of the defendant’s whereabouts during the 180-day speedy trial period and made no effort to bring the defendant to trial. The defendant missed no scheduled court dates as none were ever set during the 180-day period. This factor distinguishes those cases from the instant case because here the petitioner did miss a scheduled trial date in court and both the state attorney and court below were totally unaware of the petitioner’s whereabouts prior thereto.

The petition for a writ of prohibition is denied and the rule nisi is discharged.

BASKIN, Judge

(dissenting).

I disagree with the majority’s holding that defendant Singleton was unavailable for trial while incarcerated in Broward County. Singleton was tried and acquitted on an unrelated charge over a month prior to the expiration of the speedy trial period. Furthermore, it was the restraint placed upon Singleton by the state that prevented him from appearing in Dade County. ■

For these reasons, I agree with the decisions in Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982); Richardson v. State, 340 So.2d 1198 (Fla. 4th DCA 1976); Ramos v. Amidon, 263 So.2d 602 (Fla. 2d DCA 1972), which hold that incarceration in another county does not render a defendant unavailable for trial. Accordingly, I would grant the writ of prohibition.

      . Fla.R.Crim.P. 3.191(e):
      “Availability for Trial. A person is unavailable for trial if (1) the person or his counsel fails to attend a proceeding where their presence is required by these Rules, or (2) the person or his counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for herein is not entitled to be discharged. No presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish availability during the term.”

      . Fla.R.Crim.P. 3.191(a)(1):
      “Speedy Trial Without Demand. Except as otherwise provided by this Rule, and subject to the limitations imposed under (b)(1) and (b)(2), every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor, or within 180 days if the crime charged be a felony, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion, shall make the required inquiry under (d)(3). The time periods established by this section shall commence when such person is taken into custody as defined under (a)(4). A person charged with a crime is entitled to the benefits of this Rule whether such person is in custody in a jail or correctional institution of this State or a political sub-division thereof or is at liberty on bail or recognizance. This section shall cease to apply whenever a person files a valid demand for speedy trial under (a)(2).

      .Fla.R.Crim.P. 3.191(d)(3):
      “Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this Rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered under (d)(2) and that extension has not expired, or (ii) the failure to hold trial is attributable to the accused, a co-defendant in the same trial, or their counsel, or (iii) the accused was unavailable for trial under section (e), or (iv) the demand referred to in section (c) is invalid. If the court finds that discharge is not appropriate for the reasons under (d)(3)(h), (iii), or (iv), the pending motion for discharge shall be denied provided however, trial shall be scheduled and commenced within 90 days of a written or recorded order of denial.


author: GLICKSTEIN, Judge.

text:
    Martha DAVIDSON, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent.
    No. 82-2448.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for petitioner.
    No appearance for respondent.
   GLICKSTEIN, Judge.

Petitioner seeks a writ of habeas corpus to obtain delayed appellate review. The circumstances are identical to those in Potts v. Wainwright, 413 So.2d 156 (Fla. 4th DCA 1982) (on motion for rehearing). In both cases the public defender failed to file a timely notice of appeal; and by unpublished order, this court dismissed the appeal as untimely. In Potts, we granted the petition for writ of habeas corpus and permitted the matter to proceed as a delayed appeal; and we do the same herein.

We take note, however, that in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), the court held:

With respect to Dodson’s § 1983 claims against Shepard, we decide only that a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.

Id. 102 S.Ct. at 453 (footnote omitted). As a result, the court in Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982), while granting a like petition under similar circumstances, certified the following questions to the supreme court as being of great public importance:

A. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, 454 U.S. 312, 102 S.Ct. 445, 72[sie] L.Ed.2d 509 (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PUBLICLY APPOINTED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
B. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, 454 U.S. 312, 102 S.Ct. 445, 72[sic] L.Ed.2d 509 (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PRIVATELY RETAINED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?

In Epps v. Wainwright, 420 So.2d 659 (Fla. 4th DCA 1982), we deemed the two questions to be of the same significance and certified them as well. We do so again and further note the following comments of the Fifth District Court of Appeal in Meyer:

The ethical obligation of an attorney requires diligent attention to the legal problems of his client. No lawyer can ethically neglect a legal matter entrusted to him, nor handle it incompetently, Fla.Bar Code of Prof.Resp., DR 6-101, DR 7-101(A), and he should be sanctioned when he does. The fact that the courts have extricated the client from the consequences of the lawyer’s neglect to timely file an appeal does not convert the neglect of a legal duty to something less. We therefore believe that we must comply with our own ethical obligations to sanction lawyers who neglect their legal and professional duty. We have already notified the public defenders in this district that any such neglect of duty will give rise to sanctions by this court where the neglect is the failure to comply with a directive of this court, thus resulting in a dismissal of the appeal, or where we deem it appropriate, we will forward copies of the petition to the proper grievance committee of The Florida Bar for whatever action is deemed warranted by that committee under the circumstances of each case. We cannot condone admitted violations of the Code of Professional Responsibility nor will we do so, and we take this means to notify the lawyers who appear before this court of our intentions.

415 So.2d at 74-75. We would add to the foregoing, as a cautionary note, that the supreme court recently approved the following addition to Florida Bar Integration Rule, article XI, Rule 11.14:

(9) Nothing in this Rule shall be construed to discourage or to restrict the right and responsibility of any judge to call to the attention of The Florida Bar the conduct of any member thereof which, in the opinion of the judge, warrants investigation by The Florida Bar to determine if there has been a violation of the Code of Professional Responsibility or if an unprofessional act has occurred.

ANSTEAD and BERANEK, JJ., concur.

      . In this case, Davidson v. State, No. 82-82 (Fla. 4th DCA December 1, 1982) (order dismissing appeal as untimely).