author: ALDERMAN, Chief Justice. SHAW, Justice,

text:
    ALLSTATE INSURANCE COMPANY, Bruno F. Cassens, and Ruth Steel Cassens, Petitioners, v. Lorraine Feitsma LAFFERTY a/k/a Lorraine Howard, Respondent.
    No. 63251.
    Supreme Court of Florida.
    April 12, 1984.
    Rehearing Denied July 10, 1984.
    Bradford L. Jefferson of Brennan, McA-liley, Hayskar, McAliley and Jefferson, Fort Pierce, for petitioners.
    J. Michael Brennan of Brennan & Mus-chott, Fort Pierce, for respondent.
    Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher & Carrier, Miami, for Florida Defense Lawyers Ass’n, amicus curiae.
    Aubrey V. Kendall, P.A., and Edward T. O’Donnell of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for Motor Vehicle Mfrs. Ass’n of the U.S., Inc., amicus curiae.
    Frederick C. Heidgerd, Fort Lauderdale, for Florida Safety Councils. Larry Klein, West Palm Beach, for The Academy of Fla. Trial Lawyers.
    Joseph W. Little, Gainesville, interested party, amici curiae.
   ALDERMAN, Chief Justice.

We review the decision of the District Court of Appeal, Fourth District, in Lafferty v. Allstate Insurance Co., 425 So.2d 1147 (Fla. 4th DCA 1982), wherein the district court certified the following question to us as being of great public importance:

Should Florida courts consider seat belt evidence as bearing on comparative negligence or mitigation of damages?

The Fourth District reversed the trial court and held inadmissible the expert testimony that plaintiff’s facial and knee injuries would not have occurred if she had been wearing the shoulder and lap belts which were available in her automobile.

The identical question has been certified to us in Insurance Co. of North America v. Pasakarnis, 425 So.2d 1141 (Fla. 4th DCA 1982), which has been decided this same date. In Pasakarnis, we held that evidence of failure to wear an available and fully operational seat belt may be considered by the jury in assessing a plaintiff’s damages where the “seat belt defense” is pled and it is shown by competent evidence that failure to use the seat belt produced or contributed substantially to producing at least a portion of the damages.

Accordingly, the decision of the Fourth District is quashed on the authority of Insurance Co. of North America v. Pasakarnis, 451 So.2d 447 (Fla.1984), and this cause is remanded for further proceedings consistent therewith.

It is so ordered.

BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.

SHAW, J., dissents with an opinion, in which ADKINS, J., concurs.

SHAW, Justice,

dissenting.

I dissent for the reasons set forth in my dissent in the companion case, Insurance Co. of North America v. Pasakarnis, 451 So.2d 447 No. 63,312 (Fla. Apr. 12, 1984).

ADKINS, J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    INSURANCE COMPANY OF NORTH AMERICA and John Menninger, Petitioners, v. Richard D. PASAKARNIS, Respondent.
    No. 63312.
    Supreme Court of Florida.
    April 12, 1984.
    Rehearing Denied July 10, 1984.

      Marjorie Gadarian Graham of Jones & Foster, West Palm Beach, for petitioners.
    James C. Gavigan of the Law Offices of Hoadley & Gavigan, West Palm Beach, for respondent.
    Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher & Carrier, Miami, for the Florida Defense Lawyers Association; Aubrey V. Kendall,'P.A., Miami, and Edward T. O’Donnell of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for the Motor Vehicle Manufacturers Association of the United States, Inc.; Frederick C. Heid-gerd, Ft. Lauderdale, for Florida Safety Councils; and Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amici curiae.
   ALDERMAN, Chief Justice.

We review the decision of the District Court of Appeal, Fourth District, in Insurance Co. of North America v. Pasakarnis, 425 So.2d 1141 (Fla. 4th DCA 1982), wherein the district court certified as a question of great public importance whether Florida courts should consider seat belt evidence as bearing on comparative negligence or mitigation of damages. This is the first opportunity we have had to consider what effect, if any, plaintiff’s failure to wear a seat belt has upon his or her right of recovery in an action for personal injuries incurred as a result of an automobile accident. Contrary to the decision of the district court, we hold that evidence of failure to wear an available and fully operational seat belt may be considered by the jury in assessing a plaintiff’s damages where the “seat belt defense” is pled and it is shown by competent evidence that failure to use the seat belt produced or contributed substantially to producing at least a portion of the damages.

The facts of this case are simple and straightforward. While driving a jeep, without having fastened the available and fully operational seat belt contained therein, Richard Pasakarnis was injured in an accident caused entirely by John Menninger who had run a stop sign and struck Pasakarnis’s jeep broadside. Pasakarnis was thrown from the jeep and landed on his posterior. As a result, he sustained a compression-type injury to his lower back. His treating physician testified that his injury was caused by his flying through the air and impacting on the pavement.

In their answer to the complaint, defendants, petitioners here, alleged as an affirmative defense that at the time of the accident, Pasakarnis had available for his use a seat belt which, had it been utilized, would have substantially reduced or prevented any bodily injuries to him; that Pasakarnis was negligent in failing to use this safety device; and that his damages should be reduced in proportion to his negligence. Relying upon Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966), Pasakarnis moved to strike this affirmative defense, contending that, because he had no duty to wear a seat belt, the fact that he was not wearing his seat belt when this accident occurred does not establish a legal basis to reduce the amount of his damage award. The trial court granted the motion to strike, holding that expert testimony pertaining to the nonuse of seat belts and the causal relationship between nonuse and Pa-sakarnis’s injuries would not be admissible at trial. The court did allow the defendants to take the deposition of their expert and proffer it so that it would be a part of the record for purposes of review by the appellate court.

The defendants proffered the deposition of an engineer-accident analyst who stated that had Pasakarnis properly utilized his seat belt, it would have restrained him in the seat of the jeep and he would not have been ejected. The engineer explained in detail the approach he took to reach this conclusion. Further, in response to the question of whether Pasakarnis would have been likely to suffer any injury inside the jeep itself if he had been restrained by his seat belt and shoulder harness at the time of impact, the expert opined that within a high degree of probability, Pasakarnis would not have sustained any injury.

The jury found that Menninger was 100 percent responsible for the accident and that the total amount of Pasakarnis’s damages was $100,000. Petitioners’ motion for new trial, alleging, among other things, that the court erred in granting the motion to strike the “seat belt defense,” was denied.

Upon appeal, the District Court of Appeal, Fourth District, affirmed the judgment of the trial court holding the seat belt evidence inadmissible on the authority of Lafferty v. Allstate Insurance Co., 425 So.2d 1147 (Fla. 4th DCA 1982), which decision is also before us for review. The Fourth District in Lafferty elected to follow a line of authority which disallows evidence of failure to use an available operational seat belt. It found that the effectiveness of seat belts in preventing or limiting injury is still questionable and concluded that their nonuse should not be deemed prima facie unreasonable. It asserted judicial restraint as a compelling reason to answer the certified question in the negative and, agreeing with the First District’s decision in Brown v. Kendrick, decided that it was not within the province of the courts to legislate on the use of seat belts.

Judge Schwartz, dissenting, agreed with another line of authority which permits such evidence to be submitted to the jury in those cases where there is competent evidence to show that the plaintiff’s failure to use an available seat belt bore a causal relation to the plaintiff’s injuries. He concluded that nonuse of a seat belt may not be deemed negligent or nonnegligent conduct as a matter of law, but it is necessarily a matter to be determined in each instance by the jury.

Although we have not previously had an opportunity to address the issue of the viability of the “seat belt defense,” this issue has been raised in several decisions of the district courts of appeal. The majority of district courts, however, have not considered the viability of the defense under any theory because in the cases before them either the facts did not establish that plaintiff failed to use his or her belt or the evidence did not establish that the injuries would have been prevented or their severity lessened by use of an available and operational seat belt.

This issue was first considered in the 1966 First District case of Brown v. Kendrick. In that case, plaintiff was injured in an automobile accident while she was riding as a guest in an automobile owned by the defendant and driven by his sixteen-year-old son. In his answer, the defendant attempted to raise the defense of contributory negligence based upon an allegation that plaintiff had not used an available seat belt. The trial court struck the defense, and the First District affirmed. The First District held that the defendant had failed to show, except by conjecture, that use of the seat belt would have prevented the plaintiff’s injury. Because of the controversy over the safety features of seat belts in 1966 when that case was decided, the First District felt that the issue of the “seat belt defense” was one for the legislature rather than the courts to resolve. See also Paschal v. Pinkard, 228 So.2d 633 (Fla. 1st DCA 1969).

In Chandler Leasing Corp. v. Gibson, 227 So.2d 889 (Fla. 3d DCA 1969), defendants sought reversal of a judgment on the basis that the trial judge had erred in not permitting argument to the jury on the failure of plaintiff to fasten her seat belt. Finding that defendants did not plead contributory negligence and did not seek any instructions on the issue, the Third District affirmed. It additionally commented that had the issue been properly raised, defendants would still have to face Brown v. Kendrick.

This issue was more recently argued in Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978), wherein defendants argued that the trial court erred in directing a verdict against them on their claimed defenses of comparative and contributory negligence where they had asserted that plaintiff’s failure to buckle his seat belt contributed to the severity of his injuries. The Third District did not rule on this issue, however, because it held that the record did not contain sufficient evidence to demonstrate that plaintiff would have sustained less serious injuries had he been wearing his seat belt at the time of collision.

In Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA), review denied, 407 So.2d 1105 (Fla.1981), the First District, in addressing the issue of whether parents had a duty to install a child restraint device in their pickup truck, expressly said: “[W]e have read no authoritative suggestion that a parent’s duty to anticipate and protect his infant passenger against the negligence of other drivers extends beyond buckling an available restraint device and encompasses an earlier duty to buy and install such a device.” 397 So.2d at 351. The court then commented that in light of its ruling, it was unnecessary for it to advance the “troublesomely unconvincing, arguments against’ reducing the damages to be awarded in a comparative negligence state to one whose injury was more serious because he did not buckle an available seat belt.” Id.

Pasakarnis urges that we adhere to the First District’s ruling in Brown v. Kendrick and answer the certified question in the negative. He asserts that the single most compelling reason for such a holding is the principle that courts are law interpreting and not lawmaking and argues that we should not act in a peculiarly legislative matter.

We disagree and find this issue particularly appropriate for judicial decision. In the past, this Court has not abdicated its continuing responsibility to the citizens of this state to ensure that the law remains both fair and realistic as society and technology change. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In fact, the law of torts in Florida has been modernized, for the most part, through the courts. As we said in Gates v. Foley, 247 So.2d 40, 43 (Fla.1971):

It may be argued that any change in this rule should come from the Legislature. No recitation of authority is needed to indicate that this Court has not been backward in overturning unsound precedent in the area of tort law. Legislative action could, of course, be taken, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.

In Gates, we held that the wife of a husband injured as a proximate result'of negligence of another shall have a right of action against that person for loss of consortium. See also Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), wherein we acknowledged that we must constantly be alive to the demands of justice.

To abstain from acting responsibly in the present case on the basis of legislative deference would be to consciously ignore a limited area where decisions by the lower courts of this state have created an illogical exception to the doctrine of comparative negligence adopted in Hoffman and the underlying philosophy of individual responsibility upon which the decisions of this Court succeeding Hoffman have been predicated. In addition to our emphasis on individual responsibility, the other common thread running through our decisions has been that the law will, step in to protect people against risks which they cannot adequately guard against themselves.

In Hoffman v. Jones, we decided that contributory negligence as a complete bar to a plaintiffs action was unjust. We reasoned that contemporary conditions must be met with contemporary standards which are realistic and better calculated to obtain justice among all parties involved, based upon the circumstances, and stated that it was inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of another to produce the loss. The best argument in favor of comparative negligence we found was that it simply provided a more equitable system of determining liability. We stated that in the field of tort law, the most equitable result to be achieved is to equate liability with fault. In adopting the doctrine of comparative negligence, we explained that under this theory a plaintiff is prevented from recovering “only that proportion of his damages for which he is responsible.” 280 So.2d at 436 (emphasis supplied).

We reiterated this principle in Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), wherein we abolished the no-contribution among joint tortfeasors rule and expressly held:

[Although this Court has in the past recognized as viable the principle of no contribution, in view of a re-examination of the principles of law and equity and in light of Hoffman and public policy, as a matter of judicial policy, it would be undesirable for this Court to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault, and for these reasons this Court recedes from its earlier decisions to the contrary.

318 So.2d at 391.

In Auburn Machine Works v. Jones, 366 So.2d 1167 (Fla.1979), we rejected the “patent danger” doctrine and held that the obviousness of a hazard is not an exception to the manufacturer’s liability but is a defense whereby the manufacturer may show that plaintiff did not use the reasonable degree of care required by the circumstances. The doctrine was found to be inequitable and unjust because it held a plaintiff to too high a standard of self-protection against a manufacturer’s negligence and because it encouraged manufacturers to be outrageous in their design to eliminate safety devices and to make hazards obvious. Rather than applying a strict rule which precluded liability on the part of the manufacturer, this Court concluded that principles of comparative negligence should apply.

Because of the greater ability of the manufacturer to safeguard against injuries in automobile collision cases, we have held that under certain circumstances automobile manufacturers may be liable for a design or manufacturing defect that causes injury even though it did not cause the primary collision. In Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976), we held that there was a duty of care resting on common law negligence that the manufacturer of an article must use reasonable care in design and manufacture of its product to eliminate the risk of foreseeable injury. Adopting the rationale of Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), we made an observation which is just as relevant to the question before us as it was to our decision in Evancho, when we said:

Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types....
... While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts.

327 So.2d at 204. See also West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), wherein we imposed strict liability against manufacturers while at the same time acknowledging comparative or contributory negligence as a defense under certain circumstances.

Logically and consistently applying these principles to the present case, we hold that the “seat belt defense” is viable in Florida. The seat belt has been proven to afford the occupant of an automobile a means whereby he or she may minimize his or her personal damages prior to occurrence of the accident. Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974).

As we have already expressly acknowledged in Evancho, automobile collisions are foreseeable as are the so-called “second collisions” with the interior of the automobile. The seat belt has been a safety device required by the federal government for nearly twenty years. 15 U.S.C. §§ 1391-1425 (Supp.1965-69), 32 Fed.Reg. 2408, 2415 (1967). In a 1982 study by the United States Department of Transportation, National Highway Safety Administration Technical Report entitled the “Effectiveness and Efficiency of Safety Belt and Child Restraint Usage,” it is reported that the evidence for the effectiveness of safety belts in reducing deaths and injury severity is substantial and unequivocal. In view of the importance of the seat belt as a safety precaution available for a plaintiffs protection, failure to wear it under certain circumstances may be a pertinent factor for the jury to consider in deciding whether plaintiff exercised due care for his or her own safety. We agree with Judge Schwartz that:

[T]he failure to expend the minimal effort required to fasten an available safety device which has been put there specifically in order to reduce or avoid injuries from a subsequent accident is, on the very face of the matter, obviously pertinent and thus should be deemed admissible in an action for damages, part of which would not have been sustained if the seat belt had been used.

Insurance Co. of North America v. Pasakarnis, 425 So.2d at 1143 (Fla. 4th DCA 1982) (Schwartz, J., dissenting).

Those jurisdictions adopting the “seat belt defense” have considered three different approaches: (1) plaintiffs nonuse is negligent per se; (2) in failing to make use of an available seat belt, plaintiff has not complied with a standard of conduct which a reasonable prudent man would have pursued under similar circumstances, and therefore he may be found contributorily negligent; and (3) by not fastening his seat belt, plaintiff may, under the circumstances of a particular case, be found to have acted unreasonably and in disregard of his or her best interests and, therefore, should not be able to recover those damages which would not have occurred if his or her seat belt had been fastened. Spier v. Barker; Annot., 80 A.L.R.3rd 1033 (1977).

Because Florida does not by statute require the use of available seat belts, we reject the rule that failure to wear a seat belt is negligence per se as have the majority of jurisdictions. See, e.g., Spier v. Barker. Cf. Sloan v. Coit International, Inc., 292 So.2d 15 (Fla.1974); deJesus v. Seaboard Coastline Railroad, 281 So.2d 198 (Fla.1973). We also reject the second approach because contributory negligence is applicable only if plaintiffs failure to exercise due care causes in whole or in part the accident rather than enhancing the severity of the injuries. Rather, we adopt the third approach which is similar to that taken by the Court of Appeals of New York in Spier v. Barker and the approach outlined by Judge Schwartz in his dissenting opinion. Non-use of the seat belt may or may not amount to a failure to use reasonable care on the part of the plaintiff. Whether it does depends on the particular circumstances of the case. Defendant has the burden of pleading and proving that the plaintiff did not use an available and operational seat belt, that the plaintiffs failure to use the seat belt was unreasonable under the circumstances, and that there was a causal relationship between the injuries sustained by the plaintiff and plaintiff’s failure to buckle up. If there is competent evidence to prove that the failure to use an available and operational seat belt produced or contributed substantially to producing at least a portion of plaintiffs damages, then the jury should be permitted to consider this factor, along with all other facts in evidence, in deciding whether the damages for which defendant may otherwise be liable should be reduced. Nonuse of an available seat belt, however, should not be considered by the triers of fact in resolving the issue of liability unless it has been alleged and proved that such nonuse was a proximate cause of the accident.

To avoid confusion on the part of the jury in arriving at its verdict where seat belt evidence has been introduced and in order to clearly define the distinction between one’s negligent contribution to the accident, on the one hand, and to his damages on the other, we agree with Judge Schwartz’s statement in his dissenting opinion that the obvious solution is simply to add interrogatories to the special verdict form to elicit this information. For this reason we authorize the trial courts in appropriate cases to add the following interrogatories to the typical verdict form in automobile cases:

(a) Did defendant prove that the plaintiff failed to use reasonable care under the circumstances by failing to use an available and fully operational seat belt?
-Yes _No
If your answer to question (a) is No, you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question (a) is Yes, please answer question (b).
(b) Did defendant prove that plaintiff’s failure to use an available and fully operational seat belt produced or contributed substantially to producing at least a portion of the plaintiff’s damages?
_Yes _No
If your answer to question (b) is No, you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question (b) is Yes, please answer question (c).
(c) What percentage of plaintiff’s total damages were caused by his (or her) failure to use an available and fully operational seat belt? —%

These additional interrogatories should follow the interrogatory in the verdict which asks the jury to give the total amount of any damages sustained by the plaintiff and caused by the incident in question. If the jury returns a verdict for the plaintiff, finds that plaintiff’s negligence was a contributing cause of the accident, and finds that plaintiff’s failure to wear an available and fully operational seat belt produced or contributed substantially to producing at least a portion of plaintiff’s damages, then the trial court in its final judgment should first reduce the total amount of damages by the percentage of the plaintiff’s contributory negligence and then reduce this amount by the percentage attributable to plaintiff’s failure to wear the seat belt.

Applying this principle to the present case, we find that the trial court improperly struck the seat belt defense and erred in not permitting the proffered seat belt evidence to be submitted to the jury. The weight of such evidence is a matter within the province of the jury. We merely decide that under the particular facts of this case that it is admissible on the question of plaintiffs duty to use reasonable care under the circumstances.

Accordingly, the decision of the district court is quashed, and this cause is remanded for a new trial on the sole issue of whether and to what extent, if any, Pasa-karnis’s $100,000 verdict should be reduced as a result of his failure to wear an available and fully operational seat belt.

It is so ordered.

BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.

SHAW, J., dissentsS( with an opinion, in which ADKINS, J., concurs.

SHAW, Justice,

dissenting.

The unadorned question raised by the seat-belt defense is whether a plaintiff in an automobile personal injury action should be precluded from recovering for the full extent of his injuries because he failed to use an available seat belt. Various legal approaches favoring the defense have been advanced, all of which have a common thread: a tortfeasor is responsible only for that which he proximately causes, and as the plaintiff has a duty to exercise ordinary care to protect himself from harm, the defendant is not liable for injuries which the plaintiff reasonably could have avoided by the use of. an available seat belt. State statutes in some jurisdictions may permit the defendant to argue that violation of the statute, accompanied by proof that the violation substantially aggravated the plaintiffs injury, is negligence per se.

The majority opinion is premised upon the notion that the defense is consistent with Florida’s progression from contributory to comparative negligence and that “by not fastening his seat belt, plaintiff may, under the circumstances of a particular case, be found to have acted unreasonably and in disregard of his or her best interests and, therefore, should not be able to recover those damages which would not have occurred if his or her seat belt had been fastened.” This approach ignores the fact that the legislature has specifically prohibited, in any civil action, the admission of evidence that a parent or legal guardian of a child has not provided and used a child passenger restraint. This prohibition of the consideration of such evidence as comparative negligence is in the very section which requires the use of child restraint devices. § 316.613(1) and (3), Fla.Stat. (1983). Under this section, a parent who has failed to secure a child in the restraint device can, nonetheless, sue for the wrongful death of the child caused by the negligent driving of the defendant, and the defendant cannot introduce evidence that the parent had not secured the child in a restraint device. It seems to me that there would be a greater duty for a parent to protect a helpless child, especially when required by law, than to protect himself. Yet under Florida Statutes even a violation of that duty cannot be used to reduce damages.

Despite statistics determining that seat belts can be effective in reducing the number of serious injuries and deaths caused by automobile accidents, a vast majority of the motoring public declines to use them. If one accepts the proposition that there is no common law or statutory duty to wear seat belts, and that the wearing of such belts has been rejected by a majority of the public despite the urging of industry and the federal government, then the duty this decision places upon the Florida motorist is at the very least based upon a debatable public policy determination best left to the legislature. Basic to the majority opinion is the concept of avoidable consequences, but even that concept is not used in the traditional sense. Under the rule of avoidable consequences, the plaintiff is required to exercise reasonable care not to exacerbate the injuries that were caused by the negligence of the defendant. W. Prosser, The Law of Torts § 65 at 423 (4th ed. 1971). The plaintiffs conduct prior to the defendant’s tort normally is judged according to either the doctrine of contributory negligence or that of comparative negligence. The majority’s defense therefore not only smacks of judicial policy making, but also offends traditional notions of tort law.

In light of the justifiable hue and cry from lawyers, judges, and litigants that jury trials are becoming too costly, too lengthy, and too complex, I question whether seat-belt evidence ought to be added to the recently-introduced concept of comparative negligence. Seeing no pressing need for the introduction of this new defense into the field of automobile personal injury actions in Florida, I am reluctant to tread on established legal principles and impose a new duty upon the Florida motoring public, absent legislative action. The majority decision establishing this duty creates a host of technical problems. It is unclear in my mind when the defense is available and when the duty to wear seat belts arises. Is it available in an intentional tort action? What is the duty of a pregnant or handicapped person to wear the safety device? These answers will no doubt be provided via future litigation.

Under our current law of comparative negligence, the jury has only to determine the percentage of fault of the parties. Lawrence v. Florida East Coast Railway, 346 So.2d 1012 (Fla.1977). The seat-belt defense introduces another element. It requires the defendant to offer expert testimony to establish the causal connection between the non-use of the seat belt and aggravation of the injury. The plaintiff is called upon to counter the defendant’s expert by calling experts of his own. The jury will be called upon to evaluate conflicting expert testimony on such technical elements as the crash behavior of the vehicle, the trajectory of the plaintiff’s body in the crash, the relationship of the vehicle crash event to occupant'kinematics, the particular injury suffered, the trajectory which a restrained occupant would have taken, and the extent of lesser injuries which the restrained occupant would have sustained as a result of the impact. This battle of experts, in addition to adding to the costs, length, and complexity of the trial, might very well become the trial’s focal point, completely overshadowing the defendant’s tortious conduct in causing the accident. If the plaintiff’s automobile contains a seat belt, I can think of few instances where defense counsel would not feel compelled to call a seat-belt expert or experts, resulting in the plaintiff’s counsel doing likewise. Thus the proliferation of this new species of expert witness, the seat-belt expert.

The question in my mind is whether, in light of such technical difficulties and cost factors, the introduction of seat-belt evidence in the laws of Florida is merited. It is my opinion that it is not.

In sum, I disagree with the majority for two reasons. First, in view of the technical difficulties, cost factors, and problematical nature of the public policy which the majority establishes, I am not persuaded that the decision is wise public policy. Second, the question of the enforced use of safety belts has been before the legislature, which has not acted to impose such a requirement. On the contrary, the legislature has established a requirement that restraining devises be used for infants only. § 316.613, Fla.Stat. (1983). Significantly, in my view, our elected representatives have chosen not to require seat belts or restraining devices for children above five years of age or for adults when it could easily have done so. I consider it an unwarranted and inappropriate use of judicial power to impose by fiat a debatable public policy on an unwilling public.

I respectfully dissent.

ADKINS, J., concurs.

      . Chapter 316.613, Florida Statutes, requiring child restraint devices for children five years of age or under became effective July 1, 1983.

      . Judge Schwartz, in his dissenting opinion, asserted that this very practical viewpoint is the essential basis of those decisions which have accepted the viability of the "seat belt defense.” Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir.1976); Mays v. Dealers Transit, Inc., 441 F.2d 1344 (7th Cir.1971); Henderson v. United States, 429 F.2d 588 (10th Cir.1970); Caiazzo v. Volkswagenwerk, A.G., 468 F.Supp. 593 (E.D.N.Y.1979), modified on other grounds, 647 F.2d 241 (2d Cir.1981); Wilson v. Volkswagen of America, 445 F.Supp. 1368 (E.D.Va.1978); Pritts v. Walter Lowery Trucking Co., 400 F.Supp. 867 (W.D.Pa.1975); Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa.1977); Uresky v. Fedora, 27 Conn.Sup. 498, 245 A.2d 393 (1968); Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974); Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (1966); Sonnier v. Ramsey, 424 S.W.2d 684 (Tex.Civ.App.1968); Hernke v. Coronet Ins. Co., 72 Wis.2d 170, 240 N.W.2d 382 (1976); Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967).

      . A different situation would be presented if the defendant alleged and proved that the plaintiff s negligent failure to wear a seat belt was a contributing cause of the accident.

      . There is no contention that plaintiff's failure to wear a seat belt was a proximate cause of the accident in this case.

        . See, e.g., Note, The Seat Belt Defense: A Comprehensive Guide for the Trial Lawyer and Suggested Approach for the Courts, 56 Notre Dame Law. 272, 275-284 (1980); Note, Buckling Up for Safety: Should Florida Reconsider the Seat Belt Defense?, 13 Stetson L.Rev. 160 (1983); Note, The Seat Belt Defense: Should Coloradoans Buckle Up for Safety?, 50 U.CoIo.L.Rev. 375 (1979-80).

      . United States Dept. of Transportation, National Highway Traffic Safety Administration, The Automobile Safety Belt Fact Book (May 1982 rev.).

      . Only 14% of the motoring public used the belts the first half of 1983, up 3% from 1982. United States Dept, of Transportation, National Highway Traffic Safety Administration, National Safety Belt Usage Program, Progress and Assess-

        merit Report on the National Safety Belt Usage Program (Sept. 1983).

      . Chief Justice Warren Burger, in his Annual Message on the Administration of Justice before the American Bar Association (Feb. 12, 1984), urged lawyers to lead a search for reform of America’s legal system,, which has become "too costly, too painful, too destructive, too inefficient for a truly civilized people.”

      . 56 Notre Dame Law. at 282, n. 48.


author: EHRLICH, Justice.

text:
    Jack A. GRIFFITH, Petitioner, v. FLORIDA PAROLE & PROBATION COMM’N, Respondent. Bobby WRIGHT, Petitioner, v. FLORIDA PAROLE & PROBATION COMM’N, Respondent.
    Nos. 62067, 62068.
    Supreme Court of Florida.
    April 19, 1984.
    Rehearing Denied July 12, 1984.
    Jack A. Griffith, in pro. per.
    Bobby Wright, in pro. per.
    Richard W. Ervin, III, Chief Judge, First Dist. Court of Appeal, Tallahassee, for respondent.
   EHRLICH, Justice.

Prisoners, seeking judicial review of final action of respondent Florida Parole and Probation Commission in setting allegedly improper presumptive parole release dates, have filed with this Court petitions for writ of mandamus directing the First District Court of Appeal to entertain their appeals pursuant to Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), approved, Roberson v. Florida Parole & Probation Commission, 444 So.2d 917 (Fla.1983). We have jurisdiction. Art. V, § 3(b)(8), Fla. Const.

Documents filed with the petitions show that both appeals were filed with the district court on June 10, 1981, twenty-nine days after Daniels was filed and within the thirty-day grace period set forth in Dan iels. In Jordan v. Florida Parole & Probation Commission, 403 So.2d 591 (Fla. 1st DCA 1981), the district court made clear that the Daniels grace period made judicial review available to prisoners with a pre-Daniels final order from the Commission. Id. at 592.

After the Jordan decision issued, petitioners and two other prisoners who had also sought belated appeal from final Commission action within the thirty-day grace period, sought to reinstate their appeals or, in the alternative, to file petitions for writ of mandamus. Though procedurally indistinguishable, petitioners’ motions were denied, the other two prisoners’ motions were granted.

In light of the delineation of jurisdiction in Daniels and Jordan and in light of the district court’s granting review to other petitioners similarly situated, the denial of jurisdiction appears to be error. We do not choose to issue the writ of mandamus at this time, however. Rather, we remand these notices of belated appeal and motions to reinstate appeal or alternate leave to file petition for writ of mandamus for reconsideration by the district court.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD and SHAW, JJ., concur.


text:
    Clarence JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 62723.
    Supreme Court of Florida.
    May 10, 1984.
    Rehearing Denied July 12, 1984.

      Jerry Hill, Public Defender, and W.C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   EHRLICH, Justice.

This is an appeal from final judgment of the trial court imposing two sentences of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

A Hillsborough County grand jury indicted Clarence Jackson in October 1981 for the first-degree murders of Roger McKay and Terrance Milton. A jury convicted Jackson on both counts, and recommended death for both murders. The trial court sentenced Jackson to death on the convictions. We reverse.

The key witness at the trial was James Lucas. Jackson often shared heroin and other drugs with Lucas and the victims. Lucas testified at trial that Jackson picked up McKay on a Saturday afternoon in September 1981 near an east-side Tampa bar. As Lucas drove, Jackson, sitting in the backseat, argued with McKay about drugs, then shot him in the back. After driving to a remote area, Jackson shot McKay again as he put him in the trunk of the car. Returning to the bar Saturday evening, Jackson found Milton, took him for a ride with Lucas driving, and shot Milton after arguing about drugs. Milton remained conscious for some time, begging for his life. After driving to another remote area, Jackson had Lucas stop at a bridge where Jackson shot Milton several more times, then dumped both bodies into a backwater of the Hillsborough River. The bodies were found several days later. Lucas eventually told detectives about the murders and Jackson’s arrest and subsequent trial were the result. Jackson relied on an alibi defense, taking the stand as the only-defense witness in the guilt phase and testifying that he 'was at home with his wife and son during key periods of the weekend of the murders.

Jackson raises two issues of merit from the guilt phase of his trial, and one from the sentencing phase.

The first issue urged in the guilt phase concerns testimony from Sylvester Dumas, a state witness. During direct examination by the state, Dumas testified about an occasion when Jackson had pointed a gun at him and boasted of being a “thoroughbred killer” from Detroit. Jackson’s defense counsel interrupted the testimony to object to the line of questioning on relevancy grounds, and was overruled. Jackson argues that the testimony had no valid probative value and only tended to show bad character or propensity, and therefore is inadmissible. § 90.404(2)(a), Fla.Stat. (1979); Drake v. State, 400 So.2d 1217 (Fla.1981); Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

Before addressing the merits of this point, we must deal with the state’s contention that defense counsel failed to raise a contemporaneous objection adequate to preserve the issue for appellate review. A contemporaneous objection is required to preserve error other than fundamental error for appellate review. Castor v. State, 365 So.2d 701 (Fla.1978). The objection must be both timely and “sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Id. at 703. The state argues the objection in the instant case was neither timely nor sufficiently specific.

An objection need not always be made at the moment an examination enters impermissible areas of inquiry. In Roban v. State, 384 So.2d 683 (Fla. 4th DCA), review denied, 392 So.2d 1378, 1379 (Fla.1980), objection to an impermissible gratuitous comment by a witness was made several questions after the objectionable testimony. The district court found the objection timely because the question put to the witness was within the time frame for a contemporaneous objection. In the ease now before us, objection was made during the impermissible line of questioning, which is sufficiently timely to have allowed the court, had it sustained the objection, to instruct the jury to disregard the testimony or to consider a motion for mistrial.

As to the state’s contention that the objection was not adequately specific, we note that relevancy, the ground for objection at trial, goes to the heart of the objectionable testimony at issue here. In Williams this Court held that “evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion.” 110 So.2d at 661 (emphasis added). While the objection could have been more specific, we find the objection to have been adequate.

Turning to the merits of the issue, we agree with Jackson that the testimony was impermissible and prejudicial. We envision no circumstance in which the objected to testimony could be “relevant to a material fact in issue,” nor has the state suggested any. The testimony showed Jackson may have committed an assault on Dumas, but that crime was irrelevant to the case sub judice. Likewise the “thoroughbred killer” statement may have suggested Jackson had killed in the past, but the boast neither proved that fact, nor was that fact relevant to the case sub judice. The testimony is precisely the kind forbidden by the Williams rule and section 90.-404(2). As the Third District Court of Appeal said in Paul v. State, 340 So.2d 1249, 1250 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977),

[tjhere is no doubt that this admission [to prior unrelated crimes] would go far to convince men of ordinary intelligence that the defendant was probably guilty of the crime charged. But, the criminal law departs from the standard of the ordinary in that it requires proof of a particular crime. Where evidence has no relevancy except as to the character and propensity of the defendant to commit the crime charged, it must be excluded [citing to Williams ].

The second error urged by Jackson occurred when the trial judge declared a state witness, Sutton, to be adverse, allowing the witness to be cross-examined and impeached by the party who called him. Based on statements made to detectives and the state attorney during the investigation, the state expected Sutton to testify that he saw Jackson chase the two victims out of a bar the night before the murders, and that Jackson then asked Sutton where McKay and Milton had gone because they had robbed him and he was “going to get them.” The state also expected Sutton to testify he met Lucas and Jackson at Jackson’s car early Sunday morning, shortly after the murders. This would corroborate eyewitness Lucas’ testimony that such an encounter occurred and also would refute Jackson’s alibi, that he was at home at the time.

However, in the initial direct examination Sutton failed to give the testimony about the robbery and threat, and was confused about the day he saw Lucas and Jackson in Jackson’s car, eventually settling on early Monday morning. At this point the state attorney asked the court to declare Sutton a hostile witness. After a lengthy bench discussion, the trial judge declared Sutton to be adverse. This allowed the state to cross-examine and impeach Sutton, § 90.-608(2), Florida Statutes (1979), whereupon Sutton cleared up his confusion about when he saw Lucas and Jackson and testified he saw them early Sunday. However, Sutton said he didn’t remember telling investigators about the robbery and threat. The state then impeached Sutton by eliciting testimony from two detectives regarding the prior inconsistent statements.

The trial court was in error in declaring Sutton to be adverse and in permitting him to be impeached. A mere lapse of memory is insufficient to render a witness adverse. In a seminal decision addressing the problem of forgetful witnesses, this Court held:

It is very erroneous to suppose that, under this statute [§ 1101 Rev.Stat.Fla. (1892), precursor to § 90.608(2), Fla.Stat. (1979) ], a party producing a witness is at liberty to impeach him whenever such witness simply fails to testify as he was expected to do, without giving any evidence that is at all prejudicial to the party producing him. The impeachment permitted by the statute is only in cases where the witness proves adverse to the party producing him. He must not only fail to give the beneficial evidence expected of him, but he must become adverse by giving evidence that is prejudicial to the cause of the party producing him. When a party’s witness surprises him by not only failing to testify to the facts expected of him, but by giving harmful evidence that is contrary to what was expected, then, as is the purpose of this law, he is permitted to counteract the prejudicial effect of the adverse testimony of such witness, by proving that he has made statements on other occasions that are inconsistent with his present adverse evidence. It never was the purpose of this statute to allow a party to put up a witness for the purpose of endeavoring to get from him beneficial evidence, and upon his simple failure to testify to the desired facts, to permit him to get the benefit of those expected facts, as substantive evidence through the mouth of another witness, under the guise of impeachment. Evidence adduced in this manner is nothing more than the veriest hearsay, and is inadmissible. Even where a witness is properly impeached by proof of conflicting statements made on other occasions, the conflicting statements as made to and detailed by the impeaching witness should not be considered as substantive evidence in sustenance of the party’s cause who produced the impeached witness; but has weight only for the purpose of counteracting or annulling the harmful effects of the adverse testimony in the cause given by the impeached witness that is inconsistent with his statements testified to have been made on other occasions.

Adams v. State, 34 Fla. 185, 195-96, 15 So. 905, 908 (1894) (citations and emphasis deleted) (quoted in Hernandez v. State, 156 Fla. 356, 366-67, 22 So.2d 781, 785-86 (1945)).

The principles enunciated in Adams have retained their vitality. See, e.g., Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967); Johnson v. State, 178 So.2d 724 (Fla. 2d DCA 1965); 5 C. Ehrhardt, West’s Florida Practice, Florida Evidence 169-70 (1977). Although we find no case on point decided under the current evidence code, we perceive no reason to conclude that the principles are any less applicable, with the exception that section 90.608 no longer requires the calling party to he surprised by the prejudicial testimony. Sutton’s lapses of memory were not “affirmatively harmful” and thus could not be the basis for declaring him adverse or allowing him to be impeached. Compounding the error, the state used the impeaching testimony of the two detectives as substantive evidence in closing argument, clearly forbidden by Adams and more recent cases. See Rankin v. State, 143 So.2d 193 (Fla.1962); Perry v. State, 356 So.2d 342 (Fla. 1st DCA), cert. denied, 364 So.2d 889 (Fla.1978); Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976).

The two errors discussed above are prejudicial and necessitate reversal of Jackson’s conviction and remanding for a new trial. ■ However, Jackson urges one further error which we will address in the event of retrial. During the sentencing phase, the trial judge found McKay’s murder to be especially heinous, atrocious or cruel, one of the statutory aggravating circumstances of section 921.141(5), Florida Statutes (1981). In his findings in support of the death sentence, the trial judge relied on evidence that McKay “was shot in the back, put in the trunk while still alive, wrapped in plastic bags, and subsequently shot again while still alive.” The findings go on to outline Jackson’s actions in attempting to conceal the murder, washing the car and trying to repair the bullet hole in the car seat, before seeking out the second victim. Actions after the death of the victim are irrelevant in determining this aggravating circumstance. Herzog v. State, 439 So.2d 1372 (Fla.1983). Also, when the victim becomes unconscious, the circumstances of further acts contributing to his death cannot support a finding of heinousness. Id. at 1380. The record contains no evidence that McKay remained conscious more than a few moments after he was shot in the back the first time, and he therefore was incapable of suffering to the extent contemplated by this aggravating circumstance.

Accordingly, we reverse the defendant’s convictions and remand to the trial court for a new trial.

It is so ordered.

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

ADKINS, J., dissents.

      . The testimony was presented as follows [Assistant state attorney Bruce Berger questions, Dumas answers]:
      Q. How about Mr. Jackson, the Defendant in this case; did he carry a gun?
      A. From the first time I met him he always had a gun.
      Q. What type of gun?
      A. I saw several guns that he had. I know of a .44 magnum. At one time he opened the trunk of his Volvo and showed us some bulletproof vests.
      Q. What did they look like?
      A. Bulletproof vests, you know. Breastplates.
      Q. Ever see those before in your life?
      A. Yes, sir.
      Q. You know what a bulletproof vest looks like?
      A. Yes, sir.
      Q. What kind of guns did he have in that Volvo?
      A. I saw a .44 magnum, it was a .32, and there were two carbine type rifles. And there were another hand pistol. I am not sure of the caliber.
      Q. What did he say about these guns?
      A. He would always brag about them. He told me that that was his occupation.
      Q. What was his occupation?
      A. Said that he was a killer. Told me he was a killer. He was a thoroughbred killer.
      Q. Where did he do his killing?
      A. He told me he was a killer in his heyday in Detroit.
      Q. Why did he tell you this, Sylvester?
      A. One day we were about to inject some heroin and I had purchased part of the heroin. I fixed up and I was about to inject myself. And everyone there all of a sudden say, “No, no, you can’t get off before Une." And I say, “What you mean, I can't get off before Une? I bought this, I am fixin’ to do mine.” And say, “Nobody gets off before me. Nobody gets off before me.” And I say, "Well, I’ll tell you what, Unc, you give me my money back or somethin’ ’cause I'm going to do what I bought.” And when I got ready to inject myself again he pulled his gun out and set up, he say, "Nobody”—
      Q. What type of gun? I am sorry. What type of gun?
      A. The .44 magnum.
      MR. SIMMS [defense counsel]: I am going to object to the relevancy of this line of questioning.
      THE COURT: Overruled.
      Q. Go ahead, tell us, tell the jury.
      A. He pulled his .44 magnum and set up and say, "No one gets off before me." And I told him, I say, "Well, Unc, look, if you ain’t going to give me my money back or whatever you can do whatever you going to do ’cause I’m gonna do my own.” So he kinda laughed and he change his whole attitude. He say, "you know what, that is why I can’t mess with you.” He say, "You a little bit too tough for me.” He say, "You remind me of me in my heyday when I was in Detroit.” He say, “When I used to do all the things I used to do.” And we all were askin’, "What things you used to do, Unc?” And he say, you know, "I used to be a killer, and I am a thoroughbred killer. I know how to kill somebody and do it right.” And this was all the time. This was his main brag word. That he was a thoroughbred killer.

      . Section 90.404(2) reads:
      (2) OTHER CRIMES, WRONGS, OR ACTS.—
      (a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
      (b) 1. When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), no fewer than 10 days before trial, the state shall furnish to the accused a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.
      2. When the evidence is admitted, the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered. After the close of the evidence, the jury shall be instructed on the limited purpose for which the evidence was received and that the defendant cannot be convicted for a charge not included in the indictment or information.


author: PER CURIAM. ALDERMAN, Chief Justice,

text:
    UNIVERSAL ENGINEERING CORP., Appellant, v. Pedro Luis PEREZ, et al., Appellees.
    No. 62157.
    Supreme Court of Florida.
    May 17, 1984.

      Gerald E. Rosser and Vernis, Bowling, Mantalto, Goodman & Blank, Miami, for appellant.
    Edward A. Perse of Horton, Perse & Ginsberg and Carroll, Halberg & Meyer-son, Miami, for appellees.
   PER CURIAM.

This appeal is from a decision of the Third District Court of Appeal, Perez v. Universal Engineering Corp., 413 So.2d 75 (Fla. 3d DCA 1982), which held section 95.11(3)(c), Florida Statutes (1975), unconstitutional as applied to appellees’ causes of action. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, but we are unable to exercise our jurisdiction for lack of sufficient factual determinations on the record before us. Thus, we remand for further proceedings.

Pennsuco Cement & Aggregates, Inc., a wholly owned subsidiary of Maulé Industries, employed appellee Perez from November 1970 to April 1972 and appellee Rodriguez from July 1969 to October 1972. The appellees’ jobs consisted of welding manganese and manganese rods onto rock crusher machines, which had been purchased and installed between 1952 and 1958. Perez and Rodriguez contend that they contracted manganese poisoning induced by fumes given off during the welding process, that they became seriously ill in April 1972 and October 1972, respectively, and that the cause of their illness was not determined until a much later date. The record is silent as to the exact date of diagnosis and as to the date at which appel-lees knew or should reasonably have known their illness was occupationally related. Perez and Rodriguez filed suit against their employers in 1975. They amended their complaints on March 26, 1976, adding Universal Engineering Corporation and Western Knapp Engineering Company as party defendants. Appellees alleged that their injuries resulted from manganese poisoning derived from the use of the crusher machines negligently designed, manufactured, and installed by Universal and Western Knapp.

Universal filed a motion for summary judgment claiming that, since Universal had not been added until March 26, 1976, the actions were barred by the statute of limitations. The trial court granted the motion, and the district court reversed and remanded. Universal appealed the district court decision to this Court. We are asked to determine whether the district court erred in declaring the statute of repose unconstitutional as applied to appel-lees’ causes of action.

A statute of repose should be distinguished from a statute of limitations.

Rather than establishing a time limit within which [an] action must be brought, measured from the time of accrual of the cause of action, these [statute of repose] provisions cut off the right of action after a specified time measured from the delivery of a product or the completion of work. They do so regardless of the time of the accrual of the cause of action or of notice of the invasion of a legal right.

Bauld v. J.A. Jones Construction Co., 357 So.2d 401, 402 (Fla.1978). The statute of repose in issue was contained in the statute of limitations in effect when the actions were filed, section 95.11(3)(c), Florida Statutes (1975), which provided:

(3) WITHIN FOUR YEARS.—
(c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of abandonment of construction if not completed, or upon completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer; except that when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event within 12 years after the date of actual possession by the owner, the date of abandonment of construction if not completed, or upon completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer.

That statute was added by chapter 74-382, Laws of Florida, and became effective January 1, 1975. The provisions also contained a savings clause, codified as section 95.022, Florida Statutes (1975), which provided:

This act shall become effective on January 1, 1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.

The issue presented to this Court is whether the statute of repose in section 95.11(3)(c) may be constitutionally applied to bar actions which arose after the expiration of the twelve-year repose provision but before the effective date of the statute, so as to invoke the savings clause.

This case must be analyzed in terms of our reasoning in Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979), and its clarification of Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978). In Overland we held that, insofar as section 95.11(3)(c) operates as an absolute bar to actions commenced more than twelve years after events connected with the construction of improvements to real property, it violates article I, section 21 of the Florida Constitution. This section provides:

The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

Thus, for section 95.11(3)(c) to be unconstitutional as applied, it must operate as an absolute bar to bringing an action. If section 95.11(3)(c) only shortens the time period in which the action may be brought to a reasonable amount of time, then the Florida Constitution is not violated. Bauld.

In Overland the plaintiffs cause of action accrued after January 1, 1975, the effective date of the statutory revision and after the running of the twelve-year cap provision of section 95.11(3)(c). Consequently, the action was absolutely barred by the cap provision and the inapplicability of the savings clause’s one-year extension period. See also Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981) (interpreting section 95.031(2), Florida Statutes (1977)). In Bauld the plaintiff’s cause of action accrued prior to January 1, 1975, the effective date of the revision, and prior to the running of the twelve-year cap provision of section 95.11(3)(c). Consequently, the action was not absolutely barred because not only did the plaintiff have until the effective date of the statutory revision to file suit but, in addition, the plaintiff had the one-year extension granted by the savings clause. See also Purk v. Federal Press Co., 387 So.2d 354 (Fla.1980) (interpreting section 95.031(2), Florida Statutes (1975)).

It is undisputed that the cause of action accrued after the twelve-year repose provision had run in 1970, but this alone is not sufficient to determine the constitutionality of section 95.11(3)(c). An additional inquiry into whether the cause of action accrued before or after the effective date of the statutory revision, January 1, 1975, so as to invoke the savings clause, is essential. The very purpose of enacting the savings clause was to address the situation in which a plaintiff with an existing cause of action was barred from bringing suit because of the newly enacted statute of limitations. Carpenter v. Florida Central Credit Union, 369 So.2d 935, 937 (Fla.1979).

Because it does not appear in the record when this cause of action accrued, the Court is unable to determine whether this case is controlled by Overland or by Bauld. The rule of law applicable to the case at bar was discussed in Seaboard Air Line Railroad Co. v. Ford, 92 So.2d 160, 164-65 (Fla.1956) (per curiam on rehearing):

Generally, in actions for personal injuries resulting from the wrongful act or negligence of another, the cause of action accrues and the statute begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained has been ascertained. Cf. Cristiani v. City of Sarasota, Fla.1953, 65 So.2d 878; 54 C.J.S. Limitations of Actions, § 174, p. 141. The rule of Urie and similar cases dealing with limitations of actions for occupational diseases was developed as an exception to the general rule because of the fact that such diseases may exist unrecognized for a long time and under a judicial determination that the legislature could not have “intended such consequences to attach to blameless ignorance.” Urie v. Thompson, supra, 337 U.S. 163, 69 S.Ct. 1018, 1025 [93 L.Ed. 1282]. See also the comment of the annotator and cases cited in 11 A.L.R.2d p. 279 et seq., for a discussion of this theory and others developed by the courts to avoid the impact of the general rule in occupational disease cases. The United States Supreme Court said in the Urie case that “ ‘the afflicted employee can be held to be “injured” only when the accumulated effects of the deleterious substance manifest themselves, ... ’” quoting Associated Indemnity Corp. v. Industrial Accident Commission, 124 Cal.App. 378, 12 P.2d 1075, with approval. In City of Miami v. Brooks, supra, 70 So.2d 306, we adopted the theory of the Urie case and applied it in a non-occupational disease case where there was no visible traumatic injury at the time of the negligent act nor other circumstances by which plaintiff could have “been put on notice of his right to a cause of action ...” at that time. And it must be held, under those decisions, that until an occupational disease has manifested itself, there has been no “injury” to start the running of the statute. But we have concluded that when the existence of a disease of the kind here involved (contact dermatitis) is manifested and its nature as an occupational disease is fairly discoverable, the statute begins to run, even though the exact substance causing the disease has not been determined. This is so because when the disease manifests itself, the employee has been “injured” so as to start the running of the statute, Urie v. Thompson, supra; and if the employee knows or should know that his disease is occupational in origin, he “has been put on notice of his right to a cause of action,” City of Miami v. Brooks, supra, and can no longer rely on “blameless ignorance” as tolling the running of the statute. Cf. Consolidation Coal Co. v. Dugan, 1951, 198 Md. 331, 83 A.2d 863, 854.

(Emphasis added.) Plaintiffs alleged injuries fall in the category of occupational injuries. “[Tjhe statute of limitations begins to run from the time that the employee knows or should have known that the disease was occupational in origin, even though diagnosis of the exact cause has not yet been made.” Id. at 165.

The rationale for this exception to the general rule was explained by this Court in City of Miami v. Brooks, 70 So.2d 306 (Fla.1954). In that case, a patient had received x-ray treatment for plantar warts on her heel. More than five years after the treatment she developed an ulcer on the site of the original treatment, allegedly caused by negligent burning of the tissue with the x-ray. Suit was filed six years after the treatment but only a year after the ulcer began to develop. In holding that the statute of limitations did not bar the patient’s action for damages, this Court distinguished these facts from those controlled by the general rule:

There is a distinction, however, between notice of the negligent act and notice of its consequences. In the case of Christiani v. City of Sarasota, while there was no notice of the consequences of the act until eighteen months later, nevertheless, there was notice of the act at the time of the accident and of a right of a cause of action, so that the statute began to run even though notice of its consequences did not materialize until later. In the case of Urie v. Thompson ... the United States Supreme Court held the action not to have been barred by the three-year statute of limitations, where the suit was brought within three years from the time when the employee discovered the disease; that in the absence of evidence showing that he should have known his condition at an earlier date the cause of action accrued only when diagnosis of disease was accomplished and not when the employee unwrittingly contracted it.... In other words, the statute attaches when there has been notice of an invasion of the legal right of the plaintiff or he has been put on notice of his right to a cause of action.... To hold otherwise, under circumstances of this kind, would indeed be a harsh rule and prevent relief to an injured party who was without notice during the statutory period of any negligent act which might cause injury.

70 So.2d at 308-9. (Citations omitted.)

Appellees acknowledge their illnesses were manifest in 1972, but allege that the cause of illness was not determined till a later, unspecified, date. Thus, we are ignorant of when the appellees knew or should have known that their disease was occupational in origin. With that knowledge, the date of the accrual of the cause of action is determinable, and it will be possible to decide whether this cause of action is controlled by Overland or by Bauld. If the cause of action is found to have accrued before January 1, 1975, the effective date of the statute, the savings clause will be controlled by Bauld. If, however, the cause of action accrued after January 1, 1975, the claim will be barred by the statute. According to Overland, this would result' in an unconstitutional denial of access to the courts; thus the statute would be unconstitutional as applied.

Accordingly, this cause is therefore remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

ALDERMAN, C.J., dissents with an opinion with which BOYD, J., concurs.

ALDERMAN, Chief Justice,

dissenting.

I would quash the decision of the district court and remand with directions to reinstate the summary judgment of the trial court entered in favor of Universal Engineering Corporation on the basis that the cause of action against Universal was barred by the twelve-year statute of repose. The district court erroneously concluded that section 95.11(3)(c), Florida Statutes (1975), is unconstitutional as applied to appellees’ causes of action.

The causes of action arose after the expiration of the twelve-year repose period and prior to the effective date of section 95.-ll(3)(c), thereby invoking the savings clause which provides:

[Bjut any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.

§ 95.022, Fla.Stat. (1975). This case, therefore, is controlled by our decision in Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978), wherein we concluded that the plaintiff’s cause of action which accrued prior to January 1, 1975, was not absolutely barred in light of the applicability of the savings clause to her case.

I disagree with the majority that it is not clear when appellees’ causes of action accrued and that thus we are unable to determine whether the savings clause is applicable. Their causes of action accrued in October 1972 and April 1972 when appellees suffered serious job-related illnesses. Because of the savings clause, the time period which appellees had to file their actions was extended to December 31, 1975. They did not file until March 26, 1976, and their causes of action are therefore barred,

BOYD, J., concurs.

      . Western Knapp is not a party to this appeal.

      . This Court neither embraces nor rejects any conclusion as to whether Rodriguez or Perez stated a cause of action. The sole issue before this Court is whether the statute of repose unconstitutionally bars their actions.

      . It is interesting to note that the circuit court's orders granting summary judgment for Universal did not make reference to the particular statute of repose under consideration, but Universal in its motions to that court argued that the applicable statute of repose barring Perez’s and Rodriguez’s claims was § 95.031(2), Fla. Stat. (1975). That statute provides:
      Actions for products liability and fraud under subsection 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in subsection 95.-11(3) but in any event within 12 years after the date of delivery of the completed product to its original purchaser or the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered.
      Perez’s and Rodriguez’s brief to the circuit court mentioned §§ 95.031(2) and 95.11(3)(c). It is unclear from the record before this Court whether the parties presented their arguments to the district court based on § 95.11(3)(c), § 95.031(2), or both. The district court based its decision solely on § 95.11(3)(c) after finding that the "machinery which is alleged to have been the cause of appellants’ injuries was purchased and installed as fixtures between 1952 and 1958.” Perez, 413 So.2d at 76. This Court questions the applicability of § 95.11(3)(c). to the facts of this particular case, but as to the issue in this case the result would be the same under either § 95.1 l(3)(c) or § 95.031(2). In different factual situations, however, the result may vary as to actions under § 95.1 l(3)(c), because of ch. 80-322, Laws of Fla., which increased the repose period to 15 years.

      . This Court based its decision in Overland on a finding that the legislature had not expressed an overpowering public necessity for the prohibitory provision, and an absence of less onerous alternatives. This Court notes that the legislature in response to Overland set forth the following preamble to the provision increasing the statute of repose period of § 95.11(3)(c) in ch. 80-322, Laws of Fla.:
      WHEREAS, architects, engineers, and contractors of an improvement to real property may find themselves named as defendants in a damage suit many years after the improvement was completed and occupied, and
      WHEREAS, to permit the bringing of such actions without any limitation as to time, places the defendant in an unreasonable, if not impossible, position with respect to asserting a defense, and
      WHEREAS, architects, engineers, and contractors have no control over an owner whose neglect in maintaining an improvement may cause dangerous or unsafe conditions to develop over a period of years, an owner who uses an improvement for purposes for which it was not designed, or an owner who makes alterations or changes which, years afterward, may be determined to be unsafe or defective and which may appear to be a part of the original improvement, and
      WHEREAS, the availability of professional liability insurance for the engineer, architect, and contractor is more difficult to obtain if they are exposed to potential liability for an indefinite period of time after an improvement to real property has been completed, and
      WHEREAS, the best interest of the people of the state will be served by limiting the period of time an engineer, architect, or contractor may be exposed to potential liability after an improvement has been completed, and
      WHEREAS, a need exists for the reenactment of the limitation on actions founded on the design, planning, or construction of an improvement to real property, which limitation was declared unconstitutional by the Florida Supreme Court in Overland Construction Company, Inc. v. Sirmons, 369 So.2d 572 (1979), NOW, THEREFORE, ....
      This Court expresses no opinion as to the effect of this language on Overland.


author: McDONALD, Justice.

text:
    Chris RUSAW, Petitioner, v. STATE of Florida, Respondent.
    No. 63628.
    Supreme Court of Florida.
    May 24, 1984.

      Jerry Hill, Public Defender and L.S. Al-perstein, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for petitioner.
    Jim Smith, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for respondent.
   McDONALD, Justice.

The Second District Court of Appeal has certified its opinion in Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983), as being in direct conflict with Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution, and we approve Rusaw.

A jury convicted Rusaw of sexual battery upon a person eleven years of age or younger by a person eighteen or older, and the trial court sentenced him to life imprisonment with no possibility of parole for twenty-five years. § 794.011(2), Fla.Stat. (1981); § 775.082(1), Fla.Stat. (1981). On appeal Rusaw argued that he could be sentenced for no more than a life felony because the crime he committed is no longer subject to the death penalty and is, therefore, no longer a capital crime. The district court affirmed the twenty-five-year minimum mandatory sentence.

In Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982), we held that a death sentence for committing the crime proscribed by subsection 794.011(2) is so grossly disproportionate and excessive as to be constitutionally prohibited. We then reduced one of Buford’s death sentences to life imprisonment with no possibility of parole for twenty-five years, finding that to be an “automatic sentence” under subsection 775.082(1). Id. at 954. This Court has long held that a capital crime is one in which the death sentence is possible. Donaldson v. Sack, 265 So.2d 499 (Fla.1972); Adams v. State, 56 Fla. 1, 48 So. 219 (1908).

We find, however, that the district court resolved the instant problem properly. As this Court held in Donaldson,

elimination of the death penalty from the statute does not of course destroy the entire statute. We have steadfastly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so.

265 So.2d at 502. In subsection 794.011(2) the legislature has denominated certain conduct to be a “capital” crime and has provided alternative penalties for that crime. Buford’s striking of one of those penalties has not disturbed the other. See § 775.082(2), Fla.Stat. (1981).

We agree with the district court’s conclusion that the legislature intended that the penalties set out in subsection 775.082(1) be fully applied to the extent that they are constitutionally permissible. Death is no longer permissible for the sexual battery described in subsection 794.011(2), but life imprisonment with a twenty-five-year minimum mandatory is. Rusaw’s argument that his crime should be reduced automatically to a life felony ignores the legislature’s obvious intent.

It is well settled that the legislature has the power to define crimes and to set punishments. The legislature, by setting sexual battery of a child apart from other sexual batteries, has obviously found that crime to be of special concern. Just because death is no longer a possible punishment for the crime described in subsection 794.011(2) does not mean that the alternative penalty suffers from any defect. We therefore approve the district court’s decision.

It is so ordered.

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


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Robert MIKE, II, Respondent.
    No. 64094.
    Supreme Court of Florida.
    May 24, 1984.
    John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Alan C. Todd, Winter Park, for respondent.
   PER CURIAM.

Upon a complaint by The Florida Bar this Court appointed a referee to conduct a hearing regarding Mike’s alleged misconduct. Mike tendered a conditional guilty plea for consent judgment, acknowledging his violation of Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 3-101(B) and article XI, Rule 11.02(3)(a) of The Florida Bar’s Integration Rule. The referee recommended that Mike be found guilty in accordance with his conditional plea and that he be given a public reprimand and be placed on probation for two years.

Neither side contests the referee’s report which we hereby adopt. Publication of this opinion in Southern Reporter will serve as the public reprimand, and Robert Mike, II, is placed on probation for two years, effective thirty days from the filing of this opinion, and during his probation his practice shall be supervised with quarterly status reports on his cases being submitted to The Florida Bar.

Costs in the amount of $761.59 are hereby taxed against Mike.

It is so ordered.

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


author: ADKINS, Justice.

text:
    Alvin Bernard FORD, or Connie Ford, individually, and acting as next friend on behalf of Alvin Bernard Ford, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Dept. of Corrections, State of Florida, Respondent. Alvin Bernard FORD, etc., Appellant, v. STATE of Florida, etc., Appellee.
    Nos. 65335, 65343.
    Supreme Court of Florida.
    May 25, 1984.

      Richard L. Jorandy, Public Defender; Craig S. Barnard, Chief Asst. Public Defender; Richard H. Burr, III, West Palm Beach, of counsel; Richard B. Greene, Asst. Public Defender; and Michael A. Mel-lo, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, and Laurin A. Wollan, Jr., Tallahassee, for petitioner/appellant.
    Jim Smith, Atty. Gen., and Russell S. Bohn, Joy B. Shearer and Penny H. Brill, Asst. Attys. Gen., West Palm Beach, for respondent/appellee.
   ADKINS, Justice.

We have before us a petition for habeas corpus and an application for stay of execution in order to allow a hearing to determine petitioner’s competency. We have jurisdiction. Art. V, § 3(b)(7), (9), Fla. Const.

The petitioner was convicted in the Circuit Court of the Seventeenth Judicial Circuit on December 17, 1974, for the first-degree murder of a Fort Lauderdale police officer. The jury recommended death, and the trial court imposed a sentence of death on January 6, 1975. This Court affirmed petitioner’s conviction and sentence of death in Ford v. State, 374 So.2d 496 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666; 64 L.Ed.2d 249 (1980).

Petitioner then filed a motion to vacate or set aside the judgment pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court denied the motion, and its denial was affirmed by this Court. Ford v. State, 407 So.2d 907 (Fla.1981).

Petitioner’s subsequent petition for writ of habeas corpus was denied by the United States District Court for the Southern District of Florida. Upon appeal, a divided panel of the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s denial of relief. Ford v. Strickland, 676 F.2d 434 (11th Cir.1982). Rehearing en banc was granted, and the en banc court affirmed the district court’s judgment. Ford v. Strickland, 696 F.2d 804 (11th Cir.1983). Certiorari was denied in Ford v. Strickland, — U.S. -, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).

Thereafter proceedings to determine petitioner’s mental competency were instituted pursuant to section 922.07, Florida Statutes (1983). As required by this statute, Governor Graham appointed a commission of three psychiatrists to evaluate petitioner’s sanity. The reports of the psychiatrists were submitted to the Governor, and he signed a death warrant for petitioner on April 30, 1984, requiring petitioner to be executed between noon on May 25, 1984, and noon on June 1, 1984. Petitioner is currently scheduled to be executed on May 31, 1984.

In addition to the proceedings that were instituted on behalf of petitioner pursuant to section 922.07, petitioner’s counsel also filed a motion in the trial court for a hearing to determine petitioner’s competency and for a stay of execution during the pendency thereof. The trial court denied the motion on May 21, 1984.

Petitioner raises two issues in his petition for writ of habeas corpus. The first of these concerns a jury instruction given to the jury in the sentencing phase that its advisory verdict of either life imprisonment or death must be reached by a majority vote of the jury. Specifically, petitioner argues that intervening law has established that such an instruction is erroneous, and that but for the erroneous instruction the jury’s verdict “most probably” would have been for life imprisonment.

This alleged error occurred during the sentencing proceeding in the trial court and therefore, the explicit proscription contained in Florida Rule of Criminal Procedure 3.850 applies here:

An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

In his first motion for post conviction relief in late 1981, petitioner raised'other challenges to the instructions given during the sentencing phase, but did not raise this issue. Thus, petitioner is not entitled to raise the issue here. See Johnson v. State, 185 So.2d 466, 467 (Fla.1966); Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981); Darden v. Wainwright, 236 So.2d 139 (Fla. 2d DCA 1970).

Furthermore, petitioner’s reliance on Rose v. State, 425 So.2d 521 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), and Harich v. State, 437 So.2d 1082 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984), is misplaced. This Court has recently clarified that the error which petitioner alleges here requires an objection at trial before relief can be granted on direct appeal. See Rembert v. State, 445 So.2d 337, 340 (Fla.1984); Jackson v. State, 438 So.2d 4, 6 (Fla.1983). The excerpt from the transcript of the sentencing phase of petitioner’s trial which is appended to the instant petition shows that there was no objection to the instruction in the trial court. Thus, any alleged error in the contested jury instruction has been waived by the lack of a contemporaneous objection at trial, and any relief in this proceeding is precluded by the well-established rule that habeas corpus may not be used as a vehicle to raise for the first time issues which could or. should have been raised at trial and on appeal. McCrae v. Wainwright, 439 So.2d 868, 870 (Fla.), cert. denied, — U.S.-, 103 S.Ct. 2112, 77 L.Ed.2d 315 (1983); Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980).

Additionally, the instructions given to the jury accurately tracked the statute that was in effect at the time and that remains unchanged. It was a change in the standard jury instructions which prompted our decision in Harich. However, this Court has held that the Harich case does not constitute a change in the law which will merit relief in a collateral proceeding under the rule of Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Jackson, 438 So.2d at 6.

Moreover, as we held in Harich and Jackson, the record in this case does not establish that petitioner was prejudiced by the instructions as delivered. Petitioner attempts to construct'his claim of prejudice based almost entirely upon the response by one juror as the jury was being polled regarding whether the verdict was by a majority vote of the jury, one juror responded: “The second time it was.” From this response petitioner reasons that initially a majority of the jury did not vote for the death penalty, and then builds to a conclusion that “the erroneous instruction was determinative of the outcome.... ” However, it is well known that juries often take an initial vote to see where the members stand in order to channel their discussion. The mere fact that a second vote was taken does not establish anything in this record to indicate that the jury felt compelled to reach a conclusion that they would not otherwise have reached. Petitioner’s assertion to that fact is based purely upon conjecture, but this Court has stated that reversible error cannot be predicated on conjecture. See Sullivan v. State, 303 So.2d 632, 635 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

Petitioner’s second claim in this proceeding is that the death penalty is applied in Florida in an arbitrary and discriminatory manner on the basis of race, geography, etc., in violation of the eighth and fourteenth amendments. This claim has never been raised by petitionerjina-motion for post-conviction relief; therefore, it cannot be raised for the first time in this original habeas corpus proceeding. See Johnson v. State, 185 So.2d 466, 467 (Fla.1966); Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981); Darden v. Wainwright, 236 So.2d 139 (Fla. 2d DCA 1970). Further, this same issue, based upon the same data, has been presented to and rejected by this Court in Sullivan v. State, 441 So.2d 609 (Fla.1983), and most recently in Adams v. State, 449 So.2d 819 (Fla.1984). Petitioner concedes as much, but requests that this Court reconsider its prior holdings on this issue. We decline to do so.

Petitioner’s counsel has also filed a separate brief in this proceeding requesting this Court to remand for a hearing in the circuit court to determine whether petitioner is presently insane. Petitioner argues that a separate judicial determination of sanity must be made apart from the statutory procedure in section 922.07, Florida Statutes (1983), which directs the governor to make such a determination. This is so, petitioner contends, because Florida has an established common law right to a determination of a prisoner’s competency to be executed. However, when the early Florida decisions held that an application to the trial court must be made for a determination of sanity, section 922.07 had not been enacted. It is an accepted rule of statutory construction that the legislature is presumed to be acquainted with judicial decisions on the subject concerning which it subsequently enacts a statute. Main Insurance Co. v. Wiggins, 349 So.2d 638, 642 (Fla. 1st DCA 1977); Bermudez v. Florida Power and Light Co., 433 So.2d 565, 567 (Fla. 3d DCA 1983), review denied, 444 So.2d 416 (Fla.1984). Thus, the statutory procedure is now the exclusive procedure for determining competency to be executed.

In Goode v. Wainwright, 448 So.2d 999 (Fla.1984), we addressed this issue, agreed “that an insane person cannot be executed,” and held that section 922.07 sets forth “the procedure to be followed when a person under sentence of death appears to be insane. The execution of capital punishment is an executive function and the legislature was authorized to prescribe the procedure to be followed by the governor in the event someone claims to be insane.” Thus, in Goode we held that under section 922.07 the governor can make the determination; Goode does not stand for the proposition that the issue of sanity to be executed can be raised independently in the state judicial system. As we recognized in Goode, the United States Supreme Court in Solesbee v. Balkcom, 339 U.3. 9, 70 S.Ct. 457, 94 L.Ed.2d 604 (1950), has held that a procedure like Florida’s whereby the governor determines the sanity of an already convicted defendant does not offend due process. Like Goode, the petitioner has exercised his right to use the full processes of the judicial system. Therefore, Goode is dispositive of the instant case.

Accordingly, petitioner’s application for a hearing to determine competency and a stay of execution is hereby denied. The petition for writ of habeas corp'Us is also denied.

It is so ordered.

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


text:
    Robert B. CATES, etc., et al., Petitioners, v. Orlando R. GRAHAM, M.D., et al., Respondents.
    No. 63449.
    Supreme Court of Florida.
    May 31, 1984.

      Edward N. Winitz of Winitz, Liroff & Kolsky, Miami, and Nancy Little Hoffmann of Hoffmann & Burris, Fort Lauderdale, for petitioners.
    George W. Chesrow of Walton, Lantaff, Schroeder & Carson, Miami, for respondents.
   McDONALD, Justice.

We accepted this case for review because the decision of the district court, Cates v. Graham, 427 So.2d 290 (Fla. 3d DCA 1983), passed upon the constitutionality of subsection 95.11(4)(b), Florida Statutes (1977), thereby giving us jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We hold that the statute is constitutional and was constitutionally applied, and we approve the opinion of the district court.

Graham operated on Cates to remove broken glass from his foot. His last treatment occurred on July 4, 1975. Cates’ recovery and healing were uneventful until December of 1978 when he felt discomfort in the foot. On January 18, 1979 he learned that a piece of glass still remained in his foot. This was surgically removed on February 9, 1979, some three years, seven months from the original alleged negligent act of failing to remove all of the glass. He filed an action on this claim on January 9, 1980, four and one-half years after his initial treatment.

Subsection 95.11(4)(b), Florida Statutes (1977), effective for those proceedings, provides:

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

(Emphasis supplied.) The real question is whether a five- to six-month period remaining after the discovery of any injury is so short that to enforce the terms of the statute would result in a denial of access to the. courts and hence make subsection 95.-ll(4)(b) unconstitutional as applied.

In Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978), we found constitutional a parallel statute, subsection 95.11(3)(c). In doing so we held that a statute of repose is constitutional and does not bar access to the courts when it merely curtails the time within which suit must be filed, as opposed to barring the cause of action entirely. Accord Purk v. Federal Press Co., 387 So.2d 354 (Fla.1980).

Cates and the dissenting judge from the third district urge that a five- to six-month limitation on bringing an action is tantamount to no right at all. Admittedly, this is a short period; however, we cannot say that Cates was denied access to the courts by the time constraints. Therefore, the statute is constitutional as applied. We approve the decision of the district court.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.