author:
ERVIN, Chief Judge. BOOTH, Judge, ERVIN, Chief Judge. BOOTH, Judge,
      NIMMONS, Judge,

text:
    Harry MUNGIN, Appellant, v. STATE of Florida, Appellee.
    No. AT-468.
    District Court of Appeal of Florida, First District.
    April 6, 1984.
    On Rehearing and Rehearing En Banc Nov. 9, 1984.

      James M. Donohoe, Jr., Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

Mungin appeals his conviction of inmate possession of a weapon in violation of Section 944.47(l)(c), Florida Statutes, following a jury trial at which the trial court excluded from admission into evidence proffered defense testimony relating to the defenses of self-defense, necessity and duress. We reverse, finding that such testimony was improperly withheld from the jury’s consideration.

At trial, Correctional Officer Smith testified that while he was on duty at Florida State Prison on December 11, 1982, he observed an altercation between inmates Mungin and Williams. Smith grabbed Williams, who to him appeared to be the aggressor, and then turned to look at Mun-gin, standing approximately three or four feet away, holding a homemade knife. At that time Correctional Officers Marshall and Shaw arrived, and Marshall instructed Mungin to hand him the knife. Mungin responded that he would do so as soon as the room was cleared of inmates. After Smith had led Williams out, he saw Mungin hand the knife to Marshall.

At trial, when counsel for the defense attempted to question Smith about any problems that might have occurred between the two inmates on the day preceding the incident, the state entered an objection on grounds of irrelevancy, which was sustained by the trial court. When the same objection was made by the state to testimony by Mungin on the subject of recent prior disputes with Williams, a proffer of the following facts was made by defense counsel outside the jury’s presence: On December the tenth, Mungin saw Williams harassing his friend, another inmate named Stark. In an attempt to end the dispute, Mungin told Williams that he had money and would pay the debt. Williams’ response was to stab at Mungin twice with a knife, missing both times. Mungin testified that the attempted assault upset him greatly because he had nearly died of a stab wound to his throat, inflicted a month earlier. Fearful of another such attack, he tried, unsuccessfully, to obtain an apology from Williams and settle the matter. The following day, as Mungin entered the day-room, Williams stood up, approached him, reached under his shirt and seized a knife, which he used again to attack him. During the ensuing scuffle, and while Williams’ friends were throwing chairs at Mungin, the knife was dropped and Mungin retrieved it. At that point Correctional Officer Smith came in and subdued Williams. Mungin at first refused to surrender the knife until the other hostile inmates were removed. On this proffer, the trial court sustained the state’s objection, explaining that such a defense was not justification for Mungin’s possession of a deadly weapon. Defense counsel then stated for the record that had the proffer been allowed, Stark and another inmate would have been called to the stand to corroborate Mungin’s testimony. He then requested that such additional testimony, as well as Officer Smith’s proposed testimony relating to the prior dispute, be proffered. The trial court replied that defense counsel should consider it proffered.

Under the unique circumstances presented by this case, we hold that the trial court erred in excluding the proffered testimony. The determination of whether the accused committed the offense charged, acting in his own defense, is a matter for consideration by the jury, see, e.g., Hall v. State, 136 Fla. 644, 187 So. 392 (Fla.1939); Stevens v. State, 397 So.2d 324 (Fla. 5th DCA 1981), not the trial judge. The jury was entitled to consider the testimony concerning the recent events which led to Mungin’s temporary possession of the knife. Such testimony clearly tended to demonstrate that Mungin acted in self-defense. See, e.g., Moyers v. State, 400 So.2d 769 (Fla. 1st DCA 1981), affirmed State v. Moyers, 406 So.2d 1120 (Fla.1981); Wright v. State, 442 So.2d 1058 (Fla. 1st DCA 1983). It, moreover, could have established to the jury’s satisfaction Mun-gin’s well-founded fear that if he had not used all available resources at his disposal to remove the knife from the hands of his aggressor, he might have suffered death or great bodily harm.

In so concluding we have not overlooked our prior opinion in Carter v. State, 312 So.2d 494 (Fla. 1st DCA 1975), holding that the defense of necessity is not available to one charged with possession of a deadly weapon in his capacity as a prisoner, even though its possession is for the sole purpose of defending himself against other inmates. It does not appear from the court’s very brief opinion in Carter that the inmate came about his possession of the knife as the result of his forced removal of it from his aggressor while defending himself against the use of immediate, deadly force. Had the facts in the case at bar demonstrated that Mungin had sufficient time to reflect on the consequences of possession, so that he caused to have manufactured or imported into the prison system the knife in question, we consider that the Carter interpretation of section 944.47(l)(c) would be fully applicable in the instant case. The possession of the weapon under such circumstances would be clearly at variance with the legislative purpose expressed in the statute to bar the introduction of deadly weapons into the grounds of the state penal institutions. We do not consider, however, that section 944.47(l)(c) dispossesses an inmate’s right to defend himself against the peril of death or serious bodily injury, even to the extent of removing the offending weapon from the hands of the would-be aggressor.

Reversed and remanded for new trial.

ZEHMER, J., concurs.

BOOTH, J., dissents with written opinion.

BOOTH, Judge,

dissenting:

The trial court correctly sustained the State’s objection to the evidence in question, stating:

THE COURT: Now, Mr. Replogle [defense counsel], you would have a more valid point if the Defendant had surrendered the knife to the officers after the officers had gotten in there and had Williams under complete domination and control.
Now, I must not let the fact about whether I believe or not believe that Williams [victim of stabbing by defendant] had this knife influence me.
But when and if it had been limited solely to a situation in which a knife from another had been secured by an accused and then surrendered when the officers got there, you may have had a more valid legal status.
But to permit this Defendant’s theory of defense would turn what is already a bad situation in the prisons of Florida into an absolute dangerous jungle of armed criminals slashing and killing other human beings.
Now, this Defendant, Harry Mungin, had administrative remedies. He didn’t tell Officer Smith of any difficulty that he was having, if any. And then he would not turn the weapon over until he got ready to, which he identified as being the time when the officers- cleared the day room.
This proffered defense cannot be justification for the possession of a weapon.
The objection of the State is sustained.

The judgment of conviction should be sustained.

ON MOTION FOR REHEARING AND REHEARING EN BANC

ERVIN, Chief Judge.

The appellee, state of Florida, has filed motions for rehearing and rehearing en banc, urging that this court erred in releasing its opinion filed April 6, 1984, which recognized that the defense of self-defense, or necessity and duress, was, under the unique circumstances presented by this case, permissible. The state urges that this court’s opinion conflicts with its prior opinions in Carter v. State, 312 So.2d 494 (Fla. 1st DCA 1975), and Dardy v. State, 324 So.2d 178 (Fla. 1st DCA 1975), and therefore rehearing en banc should be granted pursuant to the provisions of Florida Rule of Appellate Procedure 9.331. The full court has considered the motion for rehearing en banc and has granted it in part insofar as the opinion conflicts with that in Carter, but otherwise adheres to the original opinion, as modified.

We agree that our former opinion requires clarification. Omitted from it was the fact that Williams himself was the victim of three stab wounds by appellant during the altercation. Appellant, however, as previously stated, was only tried on a charge of inmate possession of a weapon, as proscribed by Section 944.47(l)(c), Florida Statutes. Omitted also from the opinion were the lower court’s comments explaining its denial of the proffered defense. The lower court, somewhat inconsistently, apparently accepted the view that the defense of necessity might be appropriate under certain circumstances, but found it inapplicable to the facts before it, saying, “I am putting out of my mind the believea-bility of that defense. That is up to the jury. But in this case, because he [the defendant] has testified that he would not surrender the weapon until he got ready to, this defense is not applicable and the objection is sustained.”

Obviously the court’s interpretation of the defense was incorrect. The defense of necessity or duress was either available to the defendant or it was not. If it was one recognized by law then the jury had the right to weigh the credibility of the explanation4 offered by the defendant as to why he did not immediately hand over the knife, particularly in view of his proffered testimony that he had been attacked not only by the victim Williams but by other hostile inmates, and had finally agreed to surrender the knife when all were removed from the room. Clearly, if the defense is available, the jury — not the judge — has the right to decide whether the explanation is reasonable. See Hall v. State, 136 Fla. 644, 187 So. 392 (Fla.1939); Stevens v. State, 397 So.2d 324 (Fla. 5th DCA 1981).

The state argues, however, that the defense is not available under any circumstances and relies, as stated, on this court’s opinions in Dardy v. State and Carter v. State. We are not persuaded that the facts in Dardy control those before us. Those facts reveal a felon’s conscious, intentional decision to possess a firearm, a decision which was reflected on for some time in advance of the actual possession. Nevertheless, the blanket statement of law espoused in Dardy, holding that “self-defense is not a viable defense to the offense of possession of a firearm by a convicted felon”, and its reliance on Carter for such holding, is not in accord with what we have held in Mungin.

We have previously expressed our concern as to whether the Carter panel intended its holding to extend to an inmate’s temporary possession of a weapon under circumstances revealing that he himself was the victim of aggression. Regardless of our reservations, we agree with the state’s argument that Carter does express an applicable rule of law in that it states: “To grant judicial sanction to the otherwise unlawful possession of a deadly weapon by prisoners, whatever the reason would undoubtedly result in murder, mayhem and utter chaos throughout our entire penal institutions, with which authorities would be unable to cope.” Id. at 494 (e.s.). On further reflection, a majority of the full court now agrees that the reach of Carter could extend to the very factual situtation now before us — the temporary possession of a weapon even when used to defend an inmate against the imminent peril of death or serious bodily injury. To the extent that the Carter and Dardy opinions so hold, we recede from them, adhering to our original opinion that section 944.47(1) does not bar the temporary possession of a weapon taken from the possession of a would-be aggressor when it is used to defend the attacked inmate against the imminent peril of death or serious bodily injury.

The motions for rehearing and rehearing en banc are otherwise denied.

ERVIN, C.J., and SMITH, SHIVERS, WENTWORTH, JOANOS, WIGGINTON and ZEHMER, JJ., concur.

BOOTH, J., dissents, with MILLS, THOMPSON and NIMMONS, JJ., concurring.

NIMMONS, J., dissents, with MILLS, BOOTH, THOMPSON and BARFIELD, JJ., concurring.

BOOTH, Judge,

dissenting:

I respectfully dissent and would adhere to the law as stated by this Court in Carter v. State, 312 So.2d 494 (Fla. 1st DCA 1975), wherein this Court held:

Appellant here seeks our judicial approval of his possession of a deadly weapon while a prisoner, allegedly for the purpose of protecting himself against other inmates. While there is a narrow defense of necessity available to a prisoner whose escape has been motivated by sufficiently perilous circumstances such a defense has not been extended to the possession of deadly weapons. To grant judicial sanction to the otherwise unlawful possession of a deadly weapon by prisoners, whatever the reason, would undoubtedly result in murder, mayhem and utter chaos throughout our entire penal institutions, with which authorities would be unable to cope.

The trial court in the instant case correctly applied the law as stated in Carter and refused to “try the fight between the defendant and Williams.” The trial court further indicated that if defendant had turned over the knife to the officers when they asked for it after arrival on the scene, the proffered evidence would have been admitted, but stated: “By setting up his [defendant’s] own conditions and holding the knife until the officers complied, no, he cannot [claim self-defense].”

Defendant here, by his own testimony, used the knife to stab another inmate three times. Further, the testimony is uncontra-dicted that, when the officers arrived and asked him to relinquish the knife, he refused to do so until other inmates were removed from the room. For these reasons, defendant cannot claim that his possession of the knife was merely temporary and involuntary or inadvertent, matters which would bear on whether the State has established “possession.”

The majority view is a departure from the existing rule that necessity, including self-defense, is no defense to possession of a weapon by a prisoner. Carter v. State, supra. To recognize this defense is to permit prisons to become armed camps since all that need be shown by an inmate in order to defend his possesssion of a weapon is that he fears attack from other inmates.

This Court’s opinion in Carter v. State, supra, is quoted with approval in State v. Morbeck, 22 Wash.App. 404, 589 P.2d 823, 824 (1979), wherein the court affirmed an inmate’s conviction for unlawful possession of a weapon and the trial court’s refusal to allow evidence that defendant’s possession of the weapon was necessary to protect himself against another inmate, holding:

The purpose of [the statute] insofar as it prohibits inmates from possessing weapons, is to protect custodial officers and other prisoners from assaults with dangerous weapons by armed prisoners.... The statute does not make the intent with which the weapon is possessed an element of the offense, (emphasis added)

The rule disallowing the defense of self-defense also applies to possession of a weapon by a convicted felon. In Coleman v. State, 345 So.2d 1093 (Fla. 4th DCA 1977), the State proved that defendant was a convicted felon and that he had possession of a firearm, contrary to Section 790.-23, Florida Statutes. Defendant then sought to establish that, in self-defense, he shot a burglar who had attacked him with a crowbar. In affirming the conviction, the court held (345 So.2d at 1094):

Evidence justifying the defendant’s use of the firearm would be irrelevant and immaterial. The defendant is not charged with shooting the burglar; he is charged, as a convicted felon, with the unlawful possession of a firearm. The statute makes it a crime for a convicted felon to possess a firearm. There is no exception made for the convicted felon who believes he may need a firearm for self-defense. The defendant violated the statute by being in possession of a firearm. His subsequent use of the firearm in self-defense does not excuse or justify his initial violation of the statute. We hold that the trial court correctly disallowed the proffered testimony, (emphasis added)

In the instant case, as in Coleman, defendant was not charged with stabbing the other inmate (an offense to which the proffered evidence would be relevant), but with possession of the knife, a possession that continued even after the stabbing.

This Court, in Thorpe v. State, 377 So.2d 221, 223 (Fla. 1st DCA 1979), affirmed defendant’s conviction of attempted possession of a firearm by a convicted felon even though there was evidence that defendant had managed to wrest possession of the gun from a thief, who had accosted him, and held: ■

In Coleman v. State, 345 So.2d 1093 (Fla. 4th DCA 1977), the court squarely held that self defense is not available as a defense to the crime charged under this statute. There is, as that court put it, under the statute simply “no exception made for the convicted felon who believes he may need a firearm for self-defense”. Although the factual circumstances differ, the principle expressed in the Coleman case is, we believe, equally applicable to the case at bar. Although we acknowledge that this application of the law may in some instances produce what would seem to be a harsh result, nevertheless, we align ourselves with the Fourth District and hold that the evidence produced was sufficient to support the conviction of appellant in this case.

This Court should adhere to its prior decision and affirm the conviction below.

NIMMONS, Judge,

dissenting.

It was undisputed, indeed Mungin admitted the same during his testimony, that he initially refused to surrender the knife to Sergeant Marshall, a correctional officer, upon the latter’s demand therefor. Regardless of whether Mungin’s possession prior thereto was unlawful, it certainly was at that point. And even his “temporary” possession thereafter is sufficient. See McKinney v. State, 428 So.2d 322 (Fla. 1st DCA 1983). I, therefore, agree with the trial judge that what had transpired prior thereto was irrelevant. Even if I were to agree with the majority that we should recede from Carter, I would not do so in this case.

      . Section 944.47(l)(a)5 and (c), Fla.Stat. provides:
      (l)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

      5. Any firearm or weapon of any kind or any explosive substance.

      (c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

      . We have previously recognized that the defense of duress or necessity may be an appropriate defense to a charge of introducing contraband into a state prison, Moyers v. State, 400 So.2d 769 (Fla. 1st DCA 1981), although we there held it inapplicable because the proffered testimony was not sufficiently detailed to determine whether it tended to show duress in fact.

      . Jones v. State, 325 So.2d 436, 438 (Fla. 1st DCA 1976); Nickerson v. State, 417 So.2d 762, 763 (Fla. 4th DCA 1982).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IDY CORPORATION, d/b/a Crazy Horse Saloon, Appellant, v. Adam FREEDMAN, Appellee.
    No. 83-902.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for appellant.
    Robey & Pelstring and R. James Pelstr-ing, Miami, for appellee.
    Before HUBBART and NESBITT, JJ., and JOHN W. DELL, Associate Judge.
   PER CURIAM.

Affirmed.


text:
    Ricardo O. GERSHANIK, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 83-2346.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Rehearing Denied Oct. 2, 1984.

      Stephens, Lynn, Chernay, Klein & Zuker-man, and Robert Klein, Miami, for appellant.
    Joseph W. Lawrence, II, and Charles Tunnicliff, Tallahassee, for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Dr. Gershanik appeals the revocation of his license to practice medicine. We affirm.

The Board of Medical Examiners revoked Dr. Gershanik’s license following a disciplinary hearing conducted to consider charges that Dr. Gershanik had failed to conform to appropriate medical standards in the treatment of certain patients. At a prior proceeding, the Hearing Officer concluded that Dr. Gershanik’s conduct fell below acceptable standards: two of his patients, Rosemary Smith and Rebecca Glover, died while undergoing treatment by Dr. Ger-shanik.

In the earlier proceeding, the Hearing Officer determined that, as to Rosemary Smith, Dr. Gershanik acted negligently and unprofessionally in performing surgical procedures. The Officer, found:

[S]he had diffuse and contradictory complaints and her myelogram; which was not read by a radiologist prior to surgery, failed to demonstrate a clearly abnormal pathology. Additionally, the Respondent’s failure to take proper and timely measures to treat the patient’s condition which resulted from the damaged vessel demonstrates negligent and/or unprofessional conduct.

The Hearing Officer concluded that Dr. Gershanik violated section 458.1201(l)(m), Florida Statutes (1977), replaced in chapter 79-302, Laws of Florida, by section 458.-331(1)(t), Florida Statutes (1979). With regard to Rebecca Glover, the Hearing Officer decided that Dr. Gershanik violated section 458.1201(l)(m), Florida Statutes (1977) and section 458.331(l)(t), Florida Statutes (1979), when he acted

negligently and/or unprofessionally in deciding to perform a plastic repair on her forehead, lip and knees, while she was under general anesthesia, which was contraindicated by the patient’s serious chest injuries which included multiple fractured ribs and subcutaneous emphysema. Additionally, the Respondent Ger-shanik acted negligently and/or unprofessionally by failing to properly monitor Glover’s condition during the time she was administered general anesthesia, ..., which resulted in his inability to recognize and effectively treat the tension pneumothorax which developed during the plastic repair procedure which ultimately resulted in the patient's death, (citation omitted)

Despite Dr. Gershanik’s extensive medical background and experience, the Hearing Officer concluded that he

failed to treat two patients with the level of competence and professionalism required by law. The Respondent's testimony at the final hearing when considered in conjunction with what actually occurred during the two procedures, and his apparently well-intended belief that both patients were handled correctly, indicate that the Respondent lacks the requisite judgment and competence to continue to act as a licensed medical doctor in this state.

These findings culminated in a recommendation that Dr. Gershanik’s license to practice medicine be revoked.

The Board of Medical Examiners conducted a disciplinary hearing, heard argument of counsel, and questioned Dr. Ger-shanik. The Board then adopted the findings and conclusions of the Hearing Officer and imposed the recommended penalty. The Board acquitted Dr. Gershanik of other charges in the administrative complaint. This appeal ensued.

Our role is clear. According to section 120.68(10), Florida Statutes (1981), this court may not substitute its judgment for that of the agency as to disputed findings of fact or as to the weight of the evidence. Agency determinations may be set aside only if the court finds that the agency’s action depends on a finding of fact not supported by competent evidence in the record. Austin v. Gordon, 333 So.2d 118 (Fla. 2d DCA 1976). Our review of the record discloses no basis for overturning the Board’s decision.

Dr. Gershanik’s first argument is that the order appealed is not supported by competent substantial evidence. He contends that much, if not all, of the testimony of Dr. Hubert Aronson should be rejected because it was not competent. We disagree. On appeal a trial court’s determination of the competency of expert testimony will not be disturbed absent a clear abuse of discretion. See McDonnell Douglas v. Holliday, 397 So.2d 366 (Fla. 1st DCA 1981). The sufficiency of the facts required to form an opinion is usually decided by the expert; any deficiency relates to the weight of the evidence rather than to its admissibility. H.K. Cory. v. Estate of Miller, 405 So.2d 218 (Fla. 3d DCA 1981).

Dr. Gershanik next argues that the Hearing Officer and the Board erred in declaring his actions within the purview of the statute’s proscriptions. Again, we disagree. The construction of a statute by the administrative agency entrusted with its interpretation is accorded great weight and persuasive force. Bureau of Crimes Compensation v. Reynolds, 443 So.2d 501 (Fla. 3d DCA 1984). The agency’s interpretation will not be overturned unless it is clearly erroneous. Cohen v. School Board of Dade County, 450 So.2d 1238 (Fla. 3d DCA 1984). The record before us does not support such a conclusion. We therefore approve the Board’s determination that Dr. Gershanik’s conduct is subject to disciplinary action under the statute.

Dr. Gershanik’s final challenge is directed to the penalty. He maintains that the Board abused its discretion in revoking his license. The claim lacks merit. In Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978), the court stated:

We hold that so long as the penalty imposed is within the permissible range of statutory law, the appellate court has no authority to review the penalty unless the findings are in part reversed, (emphasis added)

We are bound to follow Webb. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). The sanction imposed is within the permissible range of penalties, and we have not reversed any part of the Board’s findings. Accordingly, the penalty is not subject to review.

We have considered appellant’s other arguments and find them to be without merit.

Affirmed.

       Insufficient evidence was presented that the act itself of damaging a vessel while performing this surgery, constitutes negligence. This is a recognized complication which, although rare, can occur when performing this procedure.

      . Section 458.1201(l)(m) provides:
      Denial, suspension, revocation of license; disciplinary powers. — .
      (l) The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of any of the following:
      (m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether committed within or without this state.

      . Section 458.331(l)(t) provides:
      Grounds for disciplinary action; action by the board.—
      (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
      (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.


text:
    POWERLINE DEVELOPMENT CORPORATION, a Florida corporation, Petitioner, v. Isaac ASSOR, Jose Bentolila, Moses Chacron and Bernard Tetner and Ven Power, N.V., a Netherlands Antilles corporation, Respondents.
    No. 84-1631.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1984.
    Rehearing Denied Oct. 2, 1984.

      Arvin Peltz, Peter R. Lopez, Miami, for petitioner.
    Daniels & Hicks and Patrice A. Talisman, Miami, Norman K. Schwarz, Miami Beach, for respondents.
    Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The instant petition for certiorari challenges the refusal to dissolve a lis pendens. The orders under review are quashed because the underlying action, which concerns allegedly fraudulent transactions involving interests in the petitioner-corporation which owns the property, does not directly affect the realty itself and therefore cannot justify the maintenance of a lis pendens upon it. Sunrise Point, Inc. v. Foss, 373 So.2d 438 (Fla. 3d DCA 1979), cert. denied, 374 So.2d 99 (Fla.1979); Hallmark Manufacturing, Inc. v. Lujack Construction Co., Inc., 372 So.2d 520 (Fla. 4th DCA 1979); Worldwide Development-Kendale Lakes West v. Lot Headquarters, Inc., 305 So.2d 271 (Fla. 3d DCA 1974); Beefy King International, Inc. v. Veigle, 464 F.2d 1102 (5th Cir.1972).

Certiorari granted.


text:
    GUARANTY NATIONAL INSURANCE COMPANY, Appellant, v. John PACHIVAS, Appellee.
    No. 83-2635.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Rehearing Denied Oct. 2, 1984.

      Lanza, Sevier, Womack & O’Connor and James C. Kelley, Coral Gables, for appellant.
    Lawrence & Daniels and Adam H. Lawrence, Kaplan & Hodin, Miami, for appel-lee.
    Before FERGUSON and JORGENSON, JJ., and WILLIAM A. NORRIS, Jr., Associate Judge.
   WILLIAM A. NORRIS, Jr., Associate judge.

Appellee sued appellant, and others, to recover on a $60,000.00 stated-value insurance policy issued to appellee on May 21, 1981, to cover a restored 1970 Porsche automobile. The 1970 Porsche was rendered a total loss in an accident on November 8, 1981. A $7,500.00 offer of settlement was made by appellant in January, 1982. Appellee rejected the offer and suit was filed seeking compensatory and punitive damages. Thereafter, discovery was undertaken.

An amended complaint added certain parties who are not subject to this appeal. Appellant’s answer to the amended complaint raised an additional defense of misrepresentation in obtaining the subject insurance policy. A counterclaim was also filed seeking rescission of the insurance policy based on certain misrepresentations discovered during the course of depositions taken after suit was filed.

On the day of trial, appellee served a motion to strike the counterclaim for rescission. The trial judge granted the motion to strike the counterclaim and refused to permit appellant to argue the defense of misrepresentation contained in the amended answer. The trial judge also permitted the jury to hear testimony of the prior offer of settlement, presumably in support of the punitive damage claim. The jury awarded appellee $59,000.00 compensatory damages and $24,000.00 punitive damages.

Appellant argues that the trial judge committed reversible error in: (1) striking appellant’s counterclaim for rescission; (2) permitting testimony of the prior settlement offer; and (3) permitting the issue of punitive damages to be submitted to the jury.

In granting the motion to strike the counterclaim on the day of trial, and prior to hearing any testimony, the trial judge apparently determined that the pre-complaint offer of settlement was a waiver of appellant’s right to rescind the contract. Johnson v. Life Insurance Co. of Georgia, 52 So.2d 813 (Fla.1951). The flaw in this reasoning is that the alleged misrepresentations were not discovered until depositions were taken after the lawsuit was filed. There can be no waiver without knowledge, express or implied, of that which is waived, Gulf Life Insurance Co. v. Green, 80 So.2d 321 (Fla.1955), and, of course, misrepresentation in an application for automobile insurance may constitute grounds for rescission. Life Insurance Co. of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967); Pina v. General Insurance Co., 443 So.2d 395 (Fla. 3d DCA 1984); § 627.409(1), Fla.Stat. (1981). Thus, it was error for the trial judge to strike the counterclaim.

Further, the allegations in the amended complaint are insufficient, as a matter of law, to sustain an award of punitive damages. Dominguez v. Equitable Life Assurance Society, 438 So.2d 58, 59 (Fla. 3d DCA 1983); Industrial Fire & Casualty Insurance Co. v. Romer, 432 So.2d 66 (Fla. 4th DCA), pet. for rev. denied, 441 So.2d 633 (Fla.1983); Henry Mor rison Flagler Museum v. Lee, 268 So.2d 434, 436 (Fla. 4th DCA 1972).

REVERSED and remanded for new trial, with directions to reinstate the counterclaim and to strike the claim for punitive damages.

      . Since we have reversed the award of punitive damages, on retrial, testimony of the offer of settlement would not be relevant.


text:
    Willie Lee MARCH, Andrei Stephonne Kelly, and David Murphy, Appellants, v. STATE of Florida, Appellee.
    Case Nos. 82-1451, 82-1742 and 82-1743.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    Rehearings Denied Oct. 9 and Nov. 2, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant March.
    J. William Masters, II, Orlando, for appellant Kelly.
    Charles A. Tabscott, Orlando, for appellant Murphy.
    Jim Smith, Attorney General, Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Appellants appeal from convictions of manslaughter following a jury trial on charges of second degree murder. We affirm.

The charges arose out of a shootout between appellants March and Murphy on the one side, and appellant Kelly on the other. The evidence reflects that all three appellants were engaged in drug trafficking and that the dispute arose over “turf.” In the course of the altercation, Little Walter Tukes, a bystander, was killed by a bullet which the evidence shows was fired from Kelly’s rifle.

March and Murphy contend that the evidence does not support their conviction because they were using handguns and the fatal bullet came from Kelly’s rifle. There is no merit to this contention. Because all three parties were engaged in the same felonious activity (the shootout) their participation in the episode would have been sufficient to support a finding that they were aiders and abettors to second degree murder, so the evidence was sufficient to support the conviction of the lesser offense of manslaughter. See LaMura v. State, 424 So.2d 25 (Fla. 4th DCA 1982).

Kelly asserts the position that he was clearly trying to protect himself from March and Murphy so that his use of the rifle was in self-defense and he was entitled to a directed verdict of acquittal. Unfortunately for his position, the evidence is capable of the inference that he was the aggressor on the day of the fatal shooting and that he arrived on the scene with his rifle ready to do battle because of an altercation which had taken place the previous day between the same parties. The issue of self-defense was properly submitted to the jury.

One other point concerns us greatly. Appellant March contends that he was denied a fair trial by virtue of lengthy prayers recited by the trial judge to open each court session and to which he objected below. He contends that these were more than prayers for divine guidance—that they were thinly disguised comments on the evidence and nature of the crime for which appellants were being tried, and that as a result appellant March was deprived of a fair trial and is entitled to a new trial, free of any such influence of the trial judge upon the jury.

We have carefully reviewed the content of the prayers given by the trial judge and agree that they are more than the usual nonsectarian benedictions used by many public officials to solemnize the opening of public functions. The prayers invoked here are clearly sectarian in nature and might be construed as an expression of the judge’s personal religious preferences. There is an inherent danger that litigants who hold different religious beliefs would feel that their cause was not being decided solely on the merits, and that a jury might be similarly influenced.

It should be clear that we do not criticize the proper use of prayers, including recognition of a supreme being, in the opening of judicial or legislative sessions. We agree that such prayers serve an important function while not jeopardizing the interests of any party. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The sessions of this court are opened daily with such a prayer.

However, when a. trial judge offers an invocation which is in effect a sermon, the judge may appear to the parties and to the jury to be espousing a standard to be applied in evaluating the evidence or the parties, and in effect, to be giving a jury instruction. In any litigation, and especially in a criminal trial, the trial judge must refrain from any activity which even remotely could appear to the jury as a comment on the evidence or on the proceedings before the court, or on the character of the defendants who are on trial. References to “save us from violence, discord and confusion;” or “subordination and obedience to government;” or “brotherly affection and love for one another or their fellow citizens;” or “a sense of our responsibility in saving the world from ruin;” and “obedience to thy law” could well be taken by jurors as an indication by the court that defendants were misfits who had violently departed from the divine umbrella of justice and brotherly love and thus should be punished.

We have admittedly taken the comments out of context only to make a point. Any comment by a trial judge made in the course of a jury trial which expresses or tends to express the judge’s view as to the weight of the evidence, the credibility of a witness, or the guilt of the accused poses a threat of interfering with the jury’s independent and impartial evaluation of the evidence. The dominant position of a judge in a case tried by a jury is such that his remarks or comments, especially if they relate to the proceedings before him, overshadow or tend to overshadow the actions of litigants, witnesses or other court officials. For this reason, comments on the evidence by a judge are prohibited and a judge should scrupulously refrain from any comments which could be so construed. See Robinson v. State, 161 So.2d 578 (Fla. 3d DCA 1964); Hamilton v. State, 109 So.2d 422 (Fla. 3d DCA 1959).

In the light of the overwhelming evidence of guilt in this case, we do not consider the prayers complained of here to be so prejudicial as to warrant reversal. We caution trial judges however, to avoid the risk of causing the reversal of what might otherwise be a correct result by injecting matters into the trial of a case that might best be left for other times and other places.

We have examined the other points raised by appellants and find them to be without merit.

The judgments of conviction are

AFFIRMED.

DAUKSCH, ORFINGER and SHARP, JJ., concur.

      . The parties have stipulated that the following prayers were recited to the jury during the course of the four day trial:
      Almighty God: We make our earnest prayer that thou wilt keep the United States in thy Holy protection; that thou wilt incline in the hearts of the citizens a spirit of subordination and obedience to government, and entertain a brotherly affection and love for one another for their fellow citizens of the United States at large and finally that thou wilt most graciously be pleased to dispose of all to do justice, to love mercy and to demean ourselves with that charity, humility and pacific temper of mind which were the characteristics of the divine author of our blessed religion, and without a humble imitation of whose example in these things we can never hope to be a happy nation. Grant our supplication, we beseech thee, through Jesus Christ our Lord, Amen.

      Almighty God, father of all men: To thee we raise thankful hearts for deliverance from forces of evil.... Deliver us a'so, we beseech thee, from the greater danger of ourselves. Have mercy upon us and forgive us for our part in the present desolation of the world. Awake us each one to a sense of our responsibility in saving the world from ruin. Open our minds and eyes and hearts to the desperate plight of millions. Arouse us from indifference into action. Let none of us fail to give his utmost in sympathy, understanding, thought and effort.... Fulfill in us and through us thy glorious intention: that thy peace, thy love and thy justice may enter into the regeneration of the world.
      * * * * * *
      Almighty God, who hast given us this good land for our heritage; we humbly beseech thee that we may always prove ourselves a people mindful of thy favor and glad to do thy will. Bless our land with honorable industry, sound learning, and pure manners.
      Save us from violence, discord, and confusion; from pride and arrogancy, and from every evil way. Defend our liberties, and fashion into one united people the multitudes brought hither out of many kindreds and tongues.
      Endue with the spirit of wisdom those to whom in thy name we entrust the authority of government, that there may be justice and peace at home, and that through obedience to thy law, we may show forth thy praise among the nations of the earth.
      In the time of prosperity, fill our hearts with thankfulness, and in the day of trouble, suffer not our trust in thee to fail; all of which we ask through Jesus Christ our Lord, Amen.

      0 God, mighty and merciful, the judge of all men, who sittest in the throne judging right: we humbly beseech thee to bless (sic) the courts of justice and magistrates in this land and grant to all those who are called upon to minister justice, the spirit of wisdom and discernment; and that they may be strong and patient, upright and compassionate, fill them, we beseech thee, with the spirit of thy holy fear; and give unto them the spirit of wisdom and understanding, Amen that they may discern of thee alone; through Him who shall come to be our judge, thy son our saviour Jesus Christ, Amen.


author: COWART, Judge.

text:
    Gary MAGUIRE, Epoch Properties, and Continental Casualty Company, Petitioners, v. STATE of Florida, Respondent.
    No. 84-1285.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 1984.
    Stephan W. Carter of Zimmerman, Shuf-field, Kiser & Sutcliffe, P.A., Orlando, for petitioners.
    No appearance for respondent.
   COWART, Judge.

Epoch Properties manages certain apartments and has liability insurance with Continental Casualty Company. A burglary and sexual assault occurred at the apartments. Continental Casualty employed an independent adjusting agency to investigate the incident. Gary Maguire, an individual adjuster, investigated and made recordings of statements (and written transcripts of the recorded statements) of the alleged rape victim and of one Johnny Lee Siplin, an employee of Epoch Properties. Siplin was thereafter accused and criminally charged with the burglary and sexual assault. In the criminal case the State subpoenaed Gary Maguire and required production of the original tapes of the statements, or written transcripts thereof, and all records of his investigation of the sexual assault. Maguire, Epoch Properties and Continental Casualty Company moved to quash the subpoena duces tecum and moved for a protective order asserting a work product privilege and from a denial of those motions they seek certiorari review in this court.

We deny the petition for writ of certiora-ri. Under the circumstances of this case the State’s right to obtain evidence for use in a criminal case is more important to society and the public interest than petitioners' work product privilege which is based on a court approved civil rule of procedure. This ease does not involve any claim by Mr. Siplin, the defendant in the criminal case, as to constitutional rights against self-incrimination or interference with the constitutional right to counsel or attorney-client, or other privilege. Furthermore, our holding that petitioners’ work product privilege is not a bar to production of evidence pursuant to a State subpoena in a criminal case does not necessarily mean that petitioners will be unable to successfully assert a work product privilege in any civil case to which they are parties.

The petition for writ of certiorari is

DENIED.

COBB, C.J., and DAUKSCH, J., concur.

      . The trial court found that the liability insurer, in anticipation of litigation, employed the independent adjusting agency to investigate the assault; based on this finding we have assumed that Maguire’s records of investigation and the statements of witnesses were work product. Cf. Selected Risks Insurance Co. v. White, 447 So.2d 455 (Fla. 4th DCA 1984).

      . Fla.R.Civ.P. 1.280(b)(2). See generally Imparato v. Spicola, 238 So.2d 503 (Fla. 2d DCA 1970).

      . Cf. Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980).

      . If the rape victim sues the apartment manager in negligence and she is unable without undue hardship to obtain the substantial equivalent of Siplin’s relevant statement by other means, she may be entitled to it although work-product. See Fla.R.Civ.P. 1.280(b)(2).


text:
    John Leroy MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 83-1157.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    Rehearing Denied Nov. 6, 1984.

      Leon B. Cheek, III, Casselberry, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

The “speedy trial” rule, Florida Rule of Criminal Procedure 3.191, requires that a person charged with a felony crime offense be brought to trial within 180 days of being taken into custody or, upon motion, that he be discharged. Because the state attorney failed to cause the defendant to be tried within the required period of time and the trial judge failed during that time period to enter an order specifically extending that time period for exceptional circumstances, this court must order that he be discharged. The trial judge’s order in another case (erroneously) declaring a statute unconstitutional (see State v. Kaufman, 430 So.2d 904 (Fla.1983)), did not have the effect of automatically extending the speedy trial time period in this case.

A trial scheduling court conference is neither a trial date nor a proceeding at which the presence of the defendant is required by the rules or any order in this case. Therefore, the failure of the defendant and his counsel to attend a trial scheduling conference does not establish that the defendant was unavailable for trial under Rule 3.191(e). See Fulk v. State, 417 So.2d 1121 (Fla. 5th DCA 1982). Neither are the operative facts in State v. Kubesh, 378 So.2d 121 (Fla. 2d DCA 1980), present here.

The judgment of conviction herein is reversed, the sentence vacated and the defendant discharged.

REVERSED.

COBB, C.J., and DAUKSCH, J., concur.


author:
SHARP, Judge.
      COWART, Judge,

text:
    Samuel Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1560.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    Rehearing Denied Nov. 1, 1984.

      James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Brown argues that he was improperly sentenced under the guidelines as having committed a felony punishable by a life sentence, thereby elevating the number of points on his sentencing score sheet to 124 rather than 100 points, which was applicable for armed robbery. We agree and vacate the sentence.

Brown was adjudicated guilty of two counts of armed robbery. The evidence at trial showed he and an accomplice robbed a convenience store, wearing nylon stocking masks and carrying guns. During the commission of the robbery, a shot was fired, but no one was injured.

The issue in this case is whether the trial court erred in enhancing the armed robbery offense by applying section 775.-087(l)(a), Florida Statutes (1981). That section provides:

Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, ... the felony for which the person is charged shall be reclassified as follows:
(a) in the case of a felony of the first degree, to a life felony. (Emphasis added).

Brown was charged with “carrying” a firearm, which is all that section 812.13(2)(a), Florida Statutes (1981), requires by way of proving armed robbery. Actually using the weapon or displaying it is not necessary. See Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983).

We have held, however, that armed robbery is already an enhanced charge under the robbery statute. Hill v. State, 434 So.2d 974 (Fla. 5th DCA 1983); see also Garvin v. State, 413 So.2d 34 (Fla. 1st DCA 1981); Tittle v. State, 405 So.2d 1007 (Fla. 1st DCA 1981); Lee v. State, 400 So.2d 1238 (Fla. 1st DCA 1981); Richardson v. State, 398 So.2d 1010 (Fla. 1st DCA 1981). We think this applies whether the proof at trial establishes that the defendant carried or used a firearm. See Whitehead v. State, 450 So.2d 545 (Fla. 4th DCA 1984). Criminal statutes should be construed strictly in the defendant’s favor, when there is any ambiguity or lack of clarity. Ferguson v. State, 377 So.2d 709 (Fla. 1979); State v. Winters, 346 So.2d 991 (Fla. 1977).

Accordingly, we vacate the sentence and remand for resentencing.

SENTENCE VACATED; REMANDED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The use of a weapon or firearm is not an essential element of armed robbery (§ 812.-13(2)(a), Fla.Stat. (1983)). State v. Gibson, 452 So.2d 553 (Fla.1984); Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983). Certainly the maximum statutory punishment for an armed robbery is greater than that for an unarmed robbery. However that is no legal reason why section 775.-087(l)(a), Florida Statutes, should not be applied to enhance a conviction for armed robbery where the robber does in fact display or use a weapon or firearm and does not merely carry it as required for the basic conviction for armed robbery. Nei: ther is that an adequate legal reason why a robber who actually displays or uses a weapon or firearm in an armed robbery should not be subjected, under the sentencing guidelines, to the possibility of a longer sentence than an armed robber who merely carried the weapon or firearm in the minimal manner necessary to be guilty of armed robbery.

I would affirm the two concurrent sentences of seven years each imposed on this robber’s two armed robbery convictions especially in view of the fact that guideline sentencing was elected as to these two armed robberies which were committed before October 1, 1983, and the special sentencing discretion authorized by section 921.005(l)(a), Fla.Stat. (1983).

      . § 812.13(2)(a), Fla.Stat. (1981).

      . If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
      § 812.13(2)(a), Fla.Stat. (1981).

      . Judge Daniel Pearson, dissenting in Whitehead v. State, 450 So.2d 545 (Fla. 3d DCA 1984), is correct.


author: COBB, Chief Judge. COWART, Judge,

text:
    Frances E. THIGPIN, as Clerk of the Circuit Court of Marion County, Petitioner, v. SUN BANK OF OCALA, as Trustee, Respondent.
    No. 84-568.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    Rehearing Denied Oct. 31, 1984.
    Robert R. McDonald and Fred W. Bag-gett of Roberts, Baggett, LaFace, Richard & Wiser, Tallahassee, and Michael Mil-brath, Ocala, for petitioner.
    Willard Ayres of Ayres, Cluster, Curry, McCall & Briggs, P.A., Ocala, for respondent.
   COBB, Chief Judge.

The defendant, Frances E. Thigpin, as Clerk of the Circuit Court of Marion County, has filed a timely notice of appeal from the trial court’s order denying her motion to dismiss the plaintiffs complaint. Said order is a non-final, non-appealable order. This court, however, by order dated July 5, 1984, is treating this cause as a petition for writ of certiorari.

This cause originated when the plaintiff, Sun Bank of Ocala, as Trustee, filed a negligence action against Frances E. Thig-pin as Clerk of-the Circuit Court of Marion County on February 21, 1984, alleging the Clerk had failed to record a mortgage which Sun Bank, as mortgagee, had submitted for recordation. The Clerk moved to dismiss Sun Bank’s complaint on two grounds: (1) that the plaintiff had failed to meet the three year statute of limitations for filing claims against the state under section 768.28(6)(a), Florida Statutes (1983); (2) that the state had not yet denied the plaintiff’s claim and plaintiff could not file its action until the state had done so. The trial court rendered an order denying the motion to dismiss wherein it stated that the amended complaint created “an issue of fact as to when plaintiff’s cause of action, if any, accrued.” The trial court then stayed further proceedings in the cause other than discovery until the running of the six month period for final disposition of a claim by the agency under section 768.-28(6)(a), Florida Statutes (1983).

Section 768.28(6)(a), Florida Statutes (1983) provides in relevant part:

An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within three years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. ... The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within six months after it is filed shall be deemed a final denial of the claim for purposes of this section....

We agree with the trial court’s determination that the amended complaint created an issue of fact as to date of accrual of the cause of action. It is apparent, however, that the plaintiff instituted this action against the clerk, a state agency, prior to any denial of its written claim as required by the foregoing statute. There was no written denial and six months from filing of the claim had not elapsed at the time suit was filed.

The trial court’s order constitutes a departure from essential requirements of law because of the premature, thus impermissible, discovery it authorizes. See Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980), review denied, 397 So.2d 779 (Fla.1981), cert. denied, 454 U.S. 815, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). The proper remedy when a complaint fails to allege performance of a condition precedent is dismissal with leave to amend. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); Askew v. County of Volusia, 450 So.2d 233 (Fla. 5th DCA 1984).

We grant certiorari review, quash the trial court’s order dated March 13, 1984, and remand for dismissal of the amended complaint without prejudice.

WRIT GRANTED.

SHARP, J., concurs.

COWART, J.,- dissents with opinion.

COWART, Judge,

dissenting:

The extraordinary writ of certiorari should not be used to review an ordinary interlocutory order denying a motion to dismiss a complaint. Legally and relatively, the judicial error in failing to dismiss a complaint that fails to state a cause of action is not a serious error because it can be rectified on plenary appeal from a final judgment and therefore results in no miscarriage of justice. Such use of certiorari to review non-appealable, non-final orders substantially abrogates the limitation, contained in Florida Rule of Appellate Procedure 9.130(a)(3), on the jurisdiction of this court to review such orders by direct appeal. Whatever reason the supreme court had for not permitting direct interlocutory appeal of all such orders is an even better reason for not selectively reviewing some of them by certiorari.

There is nothing that distinguishes this case from any other case in which the trial court errs by entry of an order denying a motion to dismiss a complaint which fails to state a cause of action. In all such cases the parties have the right to make discovery. Use of discovery before the pleadings are settled is not premature nor impermissible. There is nothing inherently or essentially harmful about the use of discovery in a civil case before the legal sufficiency of the pleadings are settled. The rules of procedure contemplate and explicitly provide for discovery at any time after commencement of the action and even before an action is filed. See Rules 1.310(a), 1.320(a), 1.340(a), 1.350(b) and 1.290(a), Florida Rules of Civil Procedure. Improper discovery in every case is always subject to protective orders in the trial court under Rule 1.280(c) and errors erroneously permitting discovery are properly reviewable by certiorari. In Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980), review denied, 397 So.2d 779 (Fla.1981), cert. denied, 454 U.S. 815, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981), a state attorney (Salcines) caused a trial court to order a private attorney (Briggs) to produce incriminating tape recordings which had been delivered to the private attorney by his client. The threat of a contempt citation against the private attorney and of the violation of the lawyer-client privilege and violation of the client’s constitutional fifth amendment rights, caused the appellate court to find the impending, threatened harm to be imminent, irreparable, and not remediable on appeal and certiorari review was granted and the State’s subpoena quashed. The operative and compelling facts in Briggs do not exist in this case.

Basic concepts of equal protection under the law dictate that legal remedies and review not be selectively or arbitrarily granted and that district courts of appeal should review all orders denying motions to dismiss in civil cases or none of them.

      .A serious judicial error that results in a miscarriage of justice appears to be the criteria for granting certiorari approved in Combs v. State, 436 So.2d 93 (Fla.1983). Combs stresses that certiorari is a discretionary writ. This means appellate courts have the discretion to deny review by certiorari even in a case that has the criteria justifying review by certiorari but it does not mean appellate courts have the discretion to grant review by certiorari in a case that does not meet the criteria for review by certio-rari. It should be noted that Combs was concerned with the certiorari being used as a “second" appeal by a district court of appeal reviewing by certiorari appellate decisions of circuit courts. The problem in this case involves the use of certiorari to review plain, ordinary, routine, everyday, garden variety, run-of-the-mill . non-final orders that this court does not have jurisdiction to review by appeal.

      . See, e.g., Page v. Ezell, 452 So.2d 582 (Fla. 3d DCA 1984).

      . The reason is that the appellate work and cost is just not justified because errors in interlocutory orders are usually ultimately rendered inconsequential because at some point they are corrected by the trial court or the parties settle or the case is tried by consent on the proper issues or the plaintiff loses on the merits or otherwise and the issue is never reviewed.

      . See Industrial Tractor Company v. Bartlett, 454 So.2d 1067 (Fla. 5th DCA 1984).

      . See Brogan v. Mullins, 452 So.2d 940 (Fla. 5th DCA 1984).


text:
    The STATE of Florida, Appellant, v. William HOWZE, Appellee.
    No. 83-2232.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Rehearing Denied Nov. 15, 1984.
    Jim Smith, Atty. Gen. and Richard E. Doran,, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Harold Mendelow, Sp. Asst. Public Defender, for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Upon undisputed facts the trial court dismissed an information charging the defendant with sale of a purported controlled substance contrary to Section 817.563, Florida Statutes (1981).

The stipulated facts read in part as follows:

“The issue for the Court to decide since there is no material dispute under the facts that the Defendant did not agree or offer to sell any person in lieu of a controlled substance any other substance, is whether the Defendant aided or abetted such a sale?”

We find that the trial court erred. The question of intent to abet a sale is a fact issue based on this record. Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982); State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972). Therefore the order of dismissal is reversed and the matter returned to the trial court for further proceedings.

Reversed and remanded.


author: GREEN, 0., Associate Judge.

text:
    Carole SMITH, Appellant, v. Edmund R. SMITH, Appellee.
    No. 83-2483.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.
    On Motion for Clarification Nov. 27, 1984.

      Martin J. Sperry of Krathen & Sperry, P.A., Fort Lauderdale, for appellant.
    Edward G. Stephany of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
   GREEN, 0., Associate Judge.

The Wife timely appeals an order of the lower court approving an order of a General Master which granted the Husband’s Petition for Modification of Alimony. We reverse.

The parties were married for ten years. A Final Judgment of Dissolution was entered on November 21, 1981, awarding the Wife rehabilitative alimony in the amount of $200.00 per week for three years. The trial court reserved jurisdiction as to the issue of permanent alimony.

The Husband filed his Petition for Modification of Alimony prior to the expiration of the prescribed rehabilitative alimony period. The proceeding was referred to a General Master, who found that the financial circumstances of the Wife were improved by a post-divorce award of Social Security benefits in the form of a lump sum payment and $465.00 per month. The Wife is physically disabled to the extent she is not able to work. The General Master also found that the Husband’s income had increased from $26,000.00 annually at the time of divorce, to $44,536.00 annually at the time of modification.

We find that the financial circumstances of the parties at the time of the hearing before the General Master do not justify a Modification of the Rehabilitative Alimony Award provided for in the Final Judgment of Dissolution. Freeland v. Purcifull, 347 So.2d 726, (Fla. 2d DCA 1977): Punie v. Punie, 291 So.2d 23 (Fla. 3d DCA 1974); Scott v. Scott, 285 So.2d 423, (Fla. 2d DCA 1973). Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

The order of the trial court, approving the report of the General Master, is therefore reversed with direction that the rehabilitative alimony award contained in the Final Judgment of Dissolution be reinstated.

REVERSED.

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

BY ORDER OF THE COURT:

ORDER GRANTING MOTION FOR CLARIFICATION

The Appellant Wife filed a Motion for Clarification with regard to this court’s opinion of September 26, 1984. She wishes to know whether our decision is retroactive so that she is entitled to unpaid alimony which has accrued under the Final Judgment of Dissolution, entered on November 21, 1981. We answer the question in the affirmative.


text:
    Lloyd E. ALBRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 84-204.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 1984.
    Rehearing Denied Nov. 2, 1984.
    James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This is another sentencing guidelines case.

The defendant pled guilty to DWI manslaughter (§ 316.1931(2), Fla.Stat. (1983), formerly § 860.01(2), Fla.Stat.) and driving while license suspended or revoked (§ 322.34, Fla.Stat.) and elected guideline sentencing. The trial judge stated three reasons for departing from the guidelines suggested or recommended sentence (3-7 years incarceration) and for imposing a fifteen year sentence on the DWI manslaughter charge. The first reason given was the fact that the defendant’s driving privilege had been revoked at the time of the commission of the DWI manslaughter offense was not scored on the guideline score sheet. This reason is incorrect as the defendant did receive an additional two points for the offense of driving while license was revoked that was scored as an additional offense at conviction on the guideline score sheet. Another reason given for departure was that the guideline recommendation was inappropriately light and not in accord with the value society places on human life. Because we uphold the departure sentence in this case for the reason stated below, we do not comment on this reason but see Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984). The third reason given for imposing a sentence departing from the guideline recommendation was that the defendant had been convicted of seven offenses of driving while intoxicated over a fifteen year period. We specifically hold that this was a clear and convincing reason for the trial judge to depart from the guidelines suggested sentence in this case because the defendant’s long continued drinking and driving problem and disregard for the safety of others, as evidenced by his multiple DWI conviction's, was not a factor considered in the guidelines sentencing calculations and, hence, is an appropriate “clear and convincing” reason for imposing a sentencing that departs from the guidelines recommendation. Cf., Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984).

The defendant also argues that where some of the reasons given by the trial judge for departure are inadequate or impermissible and other reasons given are authorized and valid reasons this court should not merely affirm but must remand for the trial court to reconsider the matter and determine if it would depart solely on the basis of the good reasons given. We do not agree. We assume the trial judge understood his sentencing discretion and understood that the mere existence of “clear and convincing reasons” for departing from the sentencing guidelines never requires the imposition of a departure sentence and that the trial judge believed that a sentence departing from the guidelines should be imposed in this case if legally possible. Accordingly, a departure sentence can be upheld on appeal if it is supported by any valid (“clear and convincing”) reason without the necessity of a remand in every case. This assumption in the trial judge’s continuing belief in the propriety of a departure sentence is especially safe in view of the trial court’s great discretion under Florida Rule of Criminal Procedure 3.800(b) to reduce or modify even a legal sentence imposed by it within sixty days after receipt of an appellate mandate affirming the sentence on appeal.

Lastly, the defendant argues that even if the trial judge was authorized to depart from the guideline recommended sentence he was not justified in deviating from the recommended range to the extent of the sentence imposed in this case. The Florida sentencing guidelines place no restrictions on a departure sentence, hence the only lawful limitation on a departure sentence is the maximum statutory sentence authorized by statute for the offense in question.

AFFIRMED.

COBB, C.J., and DAUKSCH, J., concur.

      . See § 921.001, Fla.Stat; Fla.R.Crim.P. 3.701.

      . See Key v. State, 452 So.2d 1147 (Fla. 5th DCA 1984).

      . For an argument by analogy the defendant cites Jackson v. State, 449 So.2d 309 (Fla. 5th DCA 1984), which relates to the revocation of probation for multiple violations some but not all of which are disapproved on appeal. However, many cases affirm without remand a revocation of probation based on any valid violation charge although on appeal other violation charges are found not to be supported in law or fact. See, e.g., Cikora v. State, 450 So.2d 351 (Fla. 4th DCA 1984). This court has previously affirmed without remand where a departure sentence is based on insufficient reasons as well as sufficient ones, see Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984). Cf., Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984).


author: OTT, Judge.

text:
    Judith K. HIERS, as Personal Representative of the Estate of Donald B. Hiers, Appellant, v. Paul THOMAS, Jr., Appellee.
    No. 84-104.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1984.
    Rehearing Denied Nov. 5, 1984.
    J. Jeffrey Rice of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellant.
    Robert L. Donald, Peter J. Gravina and William M. Powell of Pavese, Shields, Garner, Haverfield, Dalton & Harrison, Fort Myers, for appellee.
   OTT, Judge.

For the reasons hereinafter stated, we conclude the trial court erroneously dismissed appellant’s suit to enforce a claim of lien. The court also erred in dissolving appellant’s claim of lien and lis pendens.

The following facts are taken from appellant’s amended complaint. The decedent contracted to build a single-family dwelling for appellee. The decedent commenced construction but died before the dwelling was completed. Appellant, decedent’s surviving spouse, completed the house with the assistance of subcontractors. Appellee refused to pay $39,514.28 still due under the contract. Appellant filed a claim of lien, and a contractor’s affidavit was served on appellee. Both were executed by “Judith Hiers as agent for Donald B. Hiers, general contractor.” The claim of lien was filed within ninety days of the last work performed by appellant and two hundred twelve days after the decedent’s death.

Decedent’s brother was initially appointed personal representative of the estate. Appellant became successor personal representative some six months after she filed the claim of lien.

Thereafter, in her capacity as personal representative of the decedent’s estate, appellant filed a three-count complaint against appellee. Count one sought to enforce the claim of lien, count two was for breach of the construction contract for failure to pay $39,514.28 due and owing under the contract, and count three was for reasonable value of labor, services, and material furnished in the amount of $39,514.28. There is no allegation that the suit was not timely filed. See § 713.22(1), Fla.Stat. (1983).

Appellee moved to dismiss the complaint on the grounds that the claim of lien was not filed within ninety days of the last work performed by decedent, that appellant had not been appointed personal representative of decedent’s estate when the claim of lien was filed, that appellant had no rights under the contract, and that count three failed to state a cause of action. The trial court ultimately dismissed the entire complaint with prejudice, ruling that the estate had no claim in the case. However, the court allowed appellant, in her individual capacity and not as personal representative, to maintain counts two and three of the complaint. He apparently reasoned that the estate had no standing to sue since appellant was not personal representative at the time she filed the initial claim of lien or contractor’s affidavit. He seems to further have reasoned that an implied contract arose between appellant, individually, and appellee. However, the court permanently dissolved the claim of lien which appellant sought to enforce in count one of the complaint and the lis pen-dens filed in conjunction with count one.

Initially, we find nothing to prohibit appellant from suing in her capacity as personal representative for the benefit of the decedent’s estate. The contract was in the name of decedent and performed by him or on his behalf. By filing suit in her representative capacity, appellant is simply admitting that all work was performed and all money earned by or on behalf of the decedent was intended to benefit the estate. His estate is the real party in interest. The trial court obviously found that counts two and three stated a cause of action for breach of contract or in quantum meruit, albeit the order substituted the appellant individually as the one to maintain-the action. We hold that the trial court erred in not allowing appellant as personal representative to continue as plaintiff in counts two and three.

We also hold that the trial Court erred in dissolving the claim of lien and lis pendens. The Mechanics’ Lien Law defines “lienor” to include successors in interest. § 713.01(10), Fla.Stat. (1983). Appellant’s complaint alleges that she undertook completion of the contract as decedent’s successor in interest. For purposes of a motion to dismiss, this allegation must be accepted as true. Kg., Fearick v. Smugglers Cove, Inc., 379 So.2d 400 (Fla. 2d DCA 1980). We see no reason why successor in interest does not extend to any person appropriately standing in the shoes of and continuing performance for the decedent. Furthermore, the complaint implies that appellant undertook completion of the contract with the knowledge or acquiescence of appellee, or at least without objection. This must also be accepted as true at this juncture in the case.

Section 713.08(5), Florida Statutes (1983), provides that a claim of lien may be recorded at any time while the work is in progress but not later than ninety days after the final furnishing of the labor, services, or materials by the lienor. Nothing in this statute required appellant to file her claim of lien within ninety days of decedent’s death, and it does not provide that the claim of lien can be filed only by a personal representative of a deceased contractor. The complaint alleges that the work continued to progress after decedent’s death, and that appellant saw that the final labor, services, and materials were furnished to complete the contract. The complaint further alleges that she filed the claim of lien within ninety days of completion of the project, in full compliance with section 713.08(5).

For the reasons stated above with reference to counts two and three, appellant as personal representative can sue to enforce the claim of lien.

We think that the result reached by the trial court in dissolving the claim of lien is contrary to the public policy of this state relating to mechanics’ liens. As stated in United States v. Griffin-Moore Lumber Co., 62 So.2d 589, 590 (Fla.1953):

This court-has repeatedly held that the labor and materialman’s lien law should be liberally construed to protect the laborer and the materialman. Robert L. Weed, Architect, Inc. v. Horning, 159 Fla. 847, 33 So.2d 648. The reason for this holding is that the labor and material results in unjust enrichment of the land owner if the laborer or the materialman is not given priority in the enforcement of his lien claim. If this were not the case, any other claimant could come in and get the advantage of the value that the labor or materials adds to the land. Another reason for this rule is even more imperative. Furnishing labor and material not only results in unjust enrichment of the lands but it is the very source of the laborer and materialman’s bread and butter.

REVERSED and REMANDED for further proceedings.

GRIMES, A.C.J., and SANDERLIN, JAMES B., Associate Judge, concur.


text:
    FININVEST U.S. INCORPORATED, a Florida corporation, and Mercedes M. Ferre, Appellants, v. DOSS, LYNCH & CASTRO, P.A., a dissolved Florida professional association, by and through its surviving director, Arden Doss, Jr., Stephen A. Lynch, III, and Jose Luis Castro; and Arden Doss, Jr., Stephen A. Lynch, III, and Jose Luis Castro, individually, Appellees.
    No. 84-389.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Rehearing Denied Nov. 2, 1984.

      Paul R. Lipton, North Miami Beach, for appellants.
    Floyd, Pearson, Richman, Greer, Weil, Zack & Brumbraugh and Alan G. Greer and Dina V. Cellini; Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey and Richard H. Critchlow and Stephen T. Maher, Miami, for appellees.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Plaintiffs brought a lawsuit in the federal court to recover damages against one Farmingdale upon a liquidated damage provision of a real estate purchase contract. They recovered such a judgment which necessitated an obvious finding of a valid contract. They thereafter instituted an action in the state court attempting to recover against the appellee law firm on several .theories, underlying all of which is the basic position that the contract never came into being. The trial court entered a summary judgment for the appellees and we affirm.

The appellants recovered in the federal proceedings based on the theory they had a valid contract. Having made this election they will not be heard to say in the state court that no such contract ever came into being. Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla.1984); Gordon v. Gordon, 59 So.2d 40 (Fla.1952); O’Brien v. Brickell Townhouse, Inc., 439 So.2d 982 (Fla. 3d DCA 1983); AGB Oil Company v. Crystal Exploration and Production Company, 406 So.2d 1165 (Fla. 3d DCA 1981); United States v. Mendoza, — U.S.-, 104 S.Ct. 568, 78 L.Ed.2d 379 (1983); Scarano v. Central R. Co. of New Jersey, 203 F.2d 510 (3rd Cir.1953); In re: Holiday Isles, Ltd., 29 B.R. 827 (S.D.Fla.1983).

Therefore the summary judgment under review is affirmed.

Affirmed.


author: BASKIN, Judge. BARKDULL, Judge,

text:
    SOUTHERN RECORDS AND TAPE SERVICE, Tone Distributors, Inc., and Q Records and Tape, Inc., Petitioners, v. The Honorable Murray GOLDMAN, as Circuit Judge of the Eleventh Judicial Circuit, Dade County, Florida, Respondent.
    No. 84-748.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Rehearing Denied Nov. 13, 1984.

      Hofrichter & Quiat and Thomas D. Daiel-lo and Bette Quiat, Miami, for petitioners.
    Robert A. Ginsburg, County Atty., and Daniel A. Weiss and Murray Greenberg, Asst. County Attys., for respondent.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

Petitioners seek a writ prohibiting the circuit court from enforcing orders of the Metropolitan Dade County Fair Housing & Employment Appeals Board entered in an employment discrimination proceeding. Relying on Winn-Dixie Stores, Inc. v. Ferris, 408 So.2d 650 (Fla. 4th DCA 1981), review denied, 419 So.2d 1197 (Fla.1982), petitioners allege that the circuit court will exceed its jurisdiction if it attempts to enforce a county ordinance. They assert that jurisdiction to enforce county ordinances lies within the county court.

The Board determined that petitioners had discriminated against Emérita Abreu by failing to include maternity coverage in its health insurance, as required by federal law, and by terminating Abreu from employment because she was pregnant. The Board awarded unpaid wages, medical expenses, and interest. It ordered expunction of references to the unemployment discrimination charge against Southern Records and Tape Service, Tone Distributors, Inc., and Q Records and Tape, Inc., and review of petitioners’ health insurance policy to insure compliance with federal law. When petitioners failed to comply, the Board filed a petition in the circuit court for enforcement of its orders. Petitioners challenge the jurisdiction of the circuit court and request a writ of prohibition.

Respondent argues that the circuit court has jurisdiction based upon the amount in controversy and the request for equitable relief invoking the injunctive powers of the circuit court. Metropolitan Dade County Code, §§ HA-7(f)(iv), 11A-13.1 (1983).

We deem it unnecessary to reach the merits of the respective claims; the issue may properly be addressed on appeal.

It is a principal [sic] of universal application, and one which lies at the very foundation of the law of prohibition, that the jurisdiction is strictly confined to cases where no other remedy exists, and it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law_ And the writ will not be allowed to take the place of an appeal. In all cases, therefore, where the party has ample remedy by appeal from the order or judgment of the inferior court, prohibition will not lie....
Thus, where the defendant in an action instituted in an inferior court pleads to the jurisdiction of the court and his plea is overruled, no sufficient cause is presented for granting a prohibition, since ample remedy may be had by an appeal from the final judgment in the case.

Sherlock v. City of Jacksonville, 17 Fla. 93, 97 (1879) (citations omitted).

Prohibition may be granted only when it is shown that the lower tribunal is without jurisdiction or is attempting to act in excess of jurisdiction. English v. McCrary, 348 So.2d 293, 296 (Fla.1977). The writ does not lie to prevent the mere erroneous exercise of jurisdiction by an inferior tribunal. Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla. 457, 1 So.2d 872 (1941).

The circuit courts of the State of Florida are courts of general jurisdiction— similar to the Court of King’s Bench in England — clothed with most generous powers under the Constitution, which are beyond the competency of the legislature to curtail. Ex Parte Henderson, 6 Fla. 279; Lamb v. State, 91 Fla. 396, 107 So. 535. They are superior courts of general jurisdiction, subject of course to the appellate and supervisory powers vested in the Supreme Court by the Constitution, and as a general rule it might be said that nothing is outside the jurisdiction of a superior court of general jurisdiction except that which is clearly vested in other courts or tribunals, or is clearly out side of and beyond the jurisdiction vested in such circuit courts by the Constitution and the statutes enacted pursuant thereto. Chapman v. Reddick, 41 Fla. 120, 25 So. 673; Curtis v. Albritton, 101 Fla. 853, 132 So. 677.

State ex rel. B.F. Goodrich Co. v. Trammell, 140 Fla. 500, 504, 192 So. 175, 177 (1939). Circuit courts have jurisdiction over actions at law not cognizable by the county courts and in all cases in equity. § 26.012(2)(a), (c), Fla.Stat. (1983). Circuit court jurisdiction is invoked by good faith allegations in the pleadings. See Zuckerman v. Professional Writers of Florida, Inc., 398 So.2d 870 (Fla. 4th DCA), review denied, 411 So.2d 385 (Fla.1981); Festa v. Britton, 372 So.2d 1168 (Fla. 3d DCA 1979).

In the case under consideration, the county seeks enforcement of orders which form the basis of its allegations that the amount involved exceeds $11,000 and justifies equitable relief; these allegations place the matter within the jurisdiction of the circuit court. Challenges to circuit court jurisdiction can be adequately addressed by plenary appeal. Whether, as argued by petitioners, other remedies foreclosing equitable relief are available to Abreu, is a question to be determined by the trial court.

We certify that this question is in express and direct conflict with Winn-Dixie Stores, Inc. v. Ferris, 408 So.2d 650 (Fla. 4th DCA 1981), review denied, 419 So.2d 1197 (Fla.1982).

Prohibition denied. Rule Nisi discharged.

BARKDULL, Judge,

dissenting.

I dissent and would make the rule absolute in prohibition, not only for the reasons expressed in the opinion found in Winn-Dixie Stores, Inc. v. Ferris, 408 So.2d 650 (Fla. 4th DCA 1981), but also because I do not think the several boards of county commissions in this state are empowered to create boards or commissions that can award civil relief in the form of compensatory damages or grant equity rights such as enjoyed between private litigants.

“The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality.” Article V, Section 1, Constitution of the State of Florida as amended.

      . Nor are the boards of county commissions authorized to increase the jurisdiction of the circuit court by ordinance. See Article V, Section 5(b) and 6(b), Constitution of the State of Florida, (1971) and Section 26.012(2)(b) and 34.-01(l)(b), Florida Statutes, (1983).


author: WIGGINTON, Judge. WIGGINTON, Judge.

text:
    Ben Ruben POPE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AV-382.
    District Court of Appeal of Florida, First District.
    Oct. 2, 1984.
    Rehearing Denied Nov. 9, 1984.

      Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

This is an appeal from a conviction of attempted premeditated murder. As his sole point on appeal, appellant alleges that the trial court erred in failing to instruct the jury on his defense of voluntary intoxication. We agree and reverse.

Appellant was charged with the nocturnal stabbing of his roommate’s girl friend. On the night in question, when the police arrived at the home, appellant stated that he had been to a bar with his brother, become intoxicated', and returned home when the bar closed. The deputy sheriff to whom appellant had spoken testified at trial that he had smelled alcohol on appellant’s breath during this exchange. Appellant’s brother testified that appellant had been “pretty well intoxicated” that night. The victim’s boy friend, who had been asleep in front of the television set when appellant and his brother arrived home from the bar, testified that their raucous behavior awakened him and he had concluded that they had been drinking. Other witnesses who had been in appellant’s company at the bar testified that he had been drinking, but disagreed as to the degree of his intoxication. However, the testimony was undisputed that appellant had been drinking beer since early in the afternoon, and had had at least “eight more beers” while he was at the bar with his brother and friends. The trial court found that the requested jury instruction on the voluntary intoxication defense was not supported by the evidence and therefore denied it.

There is no dispute that appellant was charged with a specific intent crime, attempted premeditated murder. Gurganus v. State, 451 So.2d 817 (Fla.1984); Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983); cf. Gentry v. State, 437 So.2d 1097 (Fla.1983). Voluntary intoxication is a defense to any crime requiring specific intent. Gentry; Edwards; Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA 1981); Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979). It is axiomatic that a defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such an instruction, and the trial court may not weigh the evidence in determining whether the instruction is appropriate. Smith v. State, 424 So.2d 726 (Fla.1982). The evidence need not be “convincing to the trial court,” before the instruction can be submitted to the jury, Edwards, at 359, as it suffices that the defense is “suggested” by the testimony. Mellins, at 1209. “ ‘However disdainfully the trial Judge may have felt about the merits of such defense from a factual standpoint, however even we may feel about it, is beside the point.’ ” Laythe v. State, 330 So.2d 113, 114 (Fla. 3d DCA 1976).

The testimony in the instant case concerning the degree of appellant’s state of intoxication might have been conflicting, but it certainly constituted evidence of intoxication sufficient to go to the jury as an issue of fact. Consequently, the trial court erred in failing to instruct the jury on the defense of voluntary intoxication.

REVERSED and REMANDED for a new trial.

JOANOS and BARFIELD, JJ., concur.

ON MOTION FOR REHEARING

WIGGINTON, Judge.

The state moves for rehearing alleging that this Court “either overlooked or rejected the State’s ‘inconsistent defenses’ argument.” We deny the motion for rehearing but clarify our opinion to accommodate the state’s contention.

As the state admits in its motion, it “expended only minimal effort” in its brief on behalf of the trial court’s denial of the jury instruction on voluntary intoxication on the basis of lack of evidence to support the defense, instead choosing to develop an alternative theory for affirmance. This alternative theory was premised on the state’s position that appellant relied on inconsistent theories of defense at trial by maintaining that'an “unknown intruder” actually committed the stabbing, while also arguing that because he was intoxicated at the time the crime was committed, he was incapable of forming the specific intent to commit the crime charged. As argued by the state, under the first defense appellant denied having committed the very act of stabbing the victim, while under the second, appellant inconsistently admitted to having committed the act, but not the offense charged.

We are intrigued by this technical conundrum, apparently raised for the first time on appeal in order to salvage the trial court’s decision, Savage v. State, 156 So.2d 566 (Fla. 1st DCA 1963), cert. denied, 158 So.2d 518 (Fla.1963), but conclude that we need not plumb its depths as we find from a careful study of the record that the “unknown intruder” defense was never fully developed during trial. Instead, defense counsel relied primarily on the presumption of innocence, referring to the events surrounding the stabbing as being “a mystery,” and the state’s case as being “just a lot of facts thrown together.” In short, the defense was premised simply on a general plea of not guilty and the incomplete defense of voluntary intoxication. A plea of not guilty should not preclude the defense of voluntary intoxication anymore than it precludes a defense of entrapment/ Ivory v. State, 173 So.2d 759 (Fla. 3d DCA 1965), cert. dismissed, 183 So.2d 212 (Fla. 1965).

JOANOS and BARFIELD, JJ., concur.


author: SHARP, Judge.

text:
    BESCO EQUIPMENT CO., INC., etc., Appellant, v. GOLDEN LOAF BAKERY, INC., et al., Appellee.
    No. 83-353.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 1984.
    Rehearing Denied Nov. 5, 1984.

      Robert Dyer and Lavinia Dierking of Duckworth, Allen, Dyer & Pettis, P.A., Orlando, for appellant.
    Robert 0. Marks of Bronstein, Petree, Cooper & Marks, Orlando, for appellee.
   SHARP, Judge.

Besco Equipment Co., Inc. (Besco), appeals from a judgment denying its claim to an indebtedness as an intervenor in a garnishment proceeding. The judgment was entered based on the trial court’s imposition of sanctions, pursuant to Florida Rule of Civil Procedure 1.380(b)(2)(A), because Besco refused to comply with discovery motions filed against it by appellee, Golden Loaf Bakery, Inc. (Golden Loaf). We reverse.

Golden Loaf sought to garnish a debt owed to Besco by Oroweat Foods Company (Oroweat). Golden Loafs judgment debtor was Glen Sullivan d/b/a Bakery Engineers, but it asserted and sought to prove through discovery that Sullivan was the alter ego of Besco, or that the debt could be reached because Sullivan was an officer and shareholder of Besco.

Golden Loaf moved to take the deposition of a corporate officer of Besco, in Florida, and for production of various corporate records. Because it is a New Jersey corporation without offices in Florida, Bes-co filed a motion for a protective order. The motion was denied, and the trial court entered an order dated July 22, 1982, requiring a corporate officer of Besco to be deposed in Florida, as well as requiring Besco to produce the documents. The order stated that if Besco did not comply with its requirements, the court would continue the trial, which had been set a short time after the deposition date.

Besco complied with the production of documents, but it did not produce a corporate officer. Golden Loaf withdrew its motion for imposition of sanctions, and the trial court continued the trial date. Besco also sought to withdraw from the garnishment proceeding, but it failed to obtain the trial court’s order to do so, as required by Florida Rule of Civil Procedure 1.420(a).

In August and September, Golden Loaf again moved to depose a corporate officer of Besco and for production of documents. Besco did not seek a protective order, or comply with Golden Loaf’s discovery motions. Golden Loaf filed a motion for imposition of sanctions against Besco, and Bes-co failed to attend the hearing. Because of these failures, as well as non-compliance with the July 22 order, the trial court ruled that Besco and Sullivan were alter egos of each other.

Pursuant to Florida Rule of Civil Procedure 1.380 a trial court may make fact findings in favor of one party based upon another party’s willful failure to obey the trial court’s order requiring compliance with appropriate discovery. Johnson v. Allstate Insurance Company, 410 So.2d 978 (Fla. 5th DCA 1982). However, in this case there were no court orders sought or entered requiring compliance with Golden Loaf’s discovery efforts filed in August or September. These defaults are not an appropriate basis for the imposition of sanctions. Remington Construction Co. v. Hamilton Electric, Inc., 181 So.2d 183 (Fla. 3d DCA 1965).

Nor do we think failure to comply with the July 22 order is an appropriate basis for sanctions in this case. At the July 22 hearing when the order was entered, Golden Loaf withdrew its motion for sanctions, since the documents sought had been produced. Golden Loaf was apparently content with the sanction stated in the July 22 order that if Besco failed to produce the witness by July 23, the trial would be continued.

Besco also argues that the judgment should be reversed because the trial court erred in requiring it to bring witnesses from New Jersey to Florida for their depositions. Had the sanctions been properly imposed, we might not have reached this point because Besco did not seek appellate review of the order as it could have done. Any party who ignores or disobeys an order entered by a court which has jurisdiction over the parties and the subject matter does so at his peril. Johnson. However, to aid speedy disposition of this case on remand, we shall address it.

Florida courts generally do not require a nonresident corporation to produce a nonresident corporate officer in Florida, unless the corporation is seeking affirmative relief in the litigation. See Kaufman v. Kaufman, 63 So.2d 196 (Fla.1952); Madax International Corporation v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977); Godshall v. Hessen, 227 So.2d 506 (Fla. 3d DCA 1969), cert. denied, 237 So.2d 530 (Fla.1970). This rule is based on the theory that having selected the forum in which to assert his cause of action, the plaintiff must likewise appear there to give his deposition, if properly served with notice to do so. Ormond Beach First National Bank v. Montgomery Roof Co., 189 So.2d 239 (Fla. 1st DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967).

The question is, therefore, whether a party who files a claim as an intervenor in a garnishment proceeding pursuant to section 77.16, Florida Statutes (1983), is seeking affirmative relief. The garnishee, Oroweat, is in the position of a stakeholder. See Pierce, Wulbern, Murphey Corporation v. Riverside Bank of Jacksonville, 203 So.2d 177 (Fla. 1st DCA 1967). The real contest in such cases is between the garnishor, Golden Loaf, and Besco, the in-tervenor, as to which one of them is entitled to payment from the garnishee.

In this case Besco did not seek affirmative relief, but it is doubtful as to whether an intervenor in a garnishment proceeding would be entitled to affirmative relief against the opposing party. See Tilley Lamp Company v. Thacker, 454 F.2d 805, 808 (5th Cir.1972). The final judgment entered in this case acknowledges Besco’s defensive (as opposed to affirmative) position by declaring that Oroweat “may remit” the balance of the debt to Besco after paying Golden Loaf in full. In contrast, Golden Loaf was awarded a judgment against Oroweat for its claim.

Accordingly, the judgment is reversed and this cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

ORFINGER, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents without opinion.