author: SHAW, Justice.

text:
    Ronnie Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 62424.
    Supreme Court of Florida.
    March 29, 1984.
    Rehearing Denied May 23, 1984.

      Theodore Klein and Joseph H. Serota of Fine, Jacobson, Block, Klein, Colan & Simon, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., Miami, for appellee.
   SHAW, Justice.

This is an appeal by Ronnie Lee Jones (hereinafter defendant) from his convictions on three counts of first-degree murder, two counts of attempted first-degree murder, burglary, robbery, carrying a concealed firearm, and unlawful possession of a firearm while engaged in a felony. Defendant was sentenced to death following a jury recommendation that death be imposed. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the convictions and the sentences.

On the late night of July 1 and early morning of July 2, 1980, seven men were at the home of John Uptgrow. About midnight, defendant and an unidentified male companion were admitted to the home by Uptgrow. Once inside, defendant removed a concealed firearm from under his shirt and asked Uptgrow for shells. Uptgrow asked why the shells were needed since the firearm was loaded. Defendant asked to speak to Uptgrow privately and the two men went to a bedroom with the defendant walking behind Uptgrow. Within seconds, a gunshot was heard. Uptgrow’s body was later found in the bedroom with a gunshot wound to the head consistent with a shot fired from the right rear.

An occupant of the home, Fleming, testified that he was in the bathroom when the first shot was heard. When he started to leave the bathroom, he saw a gunman approaching from the bedroom. The gunman wore clothes similar to those worn by defendant and unlike those worn by his unidentified companion. Fleming retreated into the bathroom and closed the door, whereupon a series of shots were fired through the door into the bathroom. Fleming remained in the bathroom, uninjured, for a period of time until he tried to flee and was shot in the elbow by the gunman; he feigned death and survived.

Two other witnesses, Lynch and McDonald, identified defendant as the man who entered the home, produced a loaded gun, asked for shells, and went to the bedroom with Uptgrow to talk privately. Before the gunshot, defendant’s companion was sitting on a couch in the living room; after the shot the companion rose and went toward the bedroom with no visible weapon. After the first shot, another occupant, Hamilton, was seen going to the front door where he turned and said, “Don’t do that.” Hamilton’s body was later found near the door with gunshot wounds. Lynch and McDonald fled through a back door and hid nearby until the police arrived.

Another occupant, Hill, had been asleep on a couch in the living room. His body, with gunshot wounds, was found still on the couch. Another occupant, Smith, was found seriously wounded by a gunshot to the head but could not testify as to the occurrence.

Lynch and McDonald testified that Upt-grow had in his possession a distinctive black pouch containing a large sum of money and that he was wearing gold jewelry. The pouch with the money and the gold jewelry were missing when Uptgrow’s body was found. The empty pouch was discovered weeks later hidden in a room which had been occupied by defendant.

Defendant was arrested in the early morning of July 3,1980, as he was awakening. A distinctive handgun was found under his pillow. Lynch and McDonald testified that the handgun looked like the gun defendant had on the night of the murders.

A fingerprint expert testified that four of defendant’s fingerprints were found in the Uptgrow home.

Defendant raises six issues which he argues constitute reversible error. He first urges that the trial court failed to conduct a proper inquiry regarding a waiver of counsel and required him to proceed pro se when he had not effectively waived legal representation. The record shows that a public defender, Zenobi, was appointed on July 17, 1980, at defendant’s request and that Zenobi continued as a specially appointed counsel at the request of defendant after Zenobi left the public defender’s office in August, 1980. Zenobi was actively engaged in discovery and pretrial motions through March, 1981. Starting in late May, 1981, defendant began filing a series of pro se motions, the contents of which indicated that he was personally assuming direction of his defense. During a series of hearings from May through September, 1981, defendant discharged Zenobi and refused to accept other court-appointed counsel. Instead, defendant requested appointment of counsel of his choice or the provision of $25,000 to obtain counsel. During these hearings, the trial court correctly instructed defendant that he was not entitled to appointed counsel of his choice and that his legal choices were to accept court-appointed counsel, obtain private counsel using his own resources, or represent himself. This impasse culminated at a hearing on September 1, 1981, when trial was set for October 19, 1981. At this hearing, defendant declared he would represent himself but desired the assistance of appointed standby counsel, Kershaw. Defendant advised the court that he would be consulting Kershaw prior to the trial date to obtain assistance in preparing and conducting his defense. The court inquired as to defendant’s competence to represent himself and advised defendant that he would be better served if he allowed Kershaw to act as his counsel and to conduct his defense. The court further advised defendant that it was very difficult to conduct a defense, that he was giving up certain rights and would not be able to demand a new trial because of his own ineffectiveness. Nevertheless, defendant insisted, and the trial court having satisfied itself that defendant was competent to exercise his right of self-representation, acquiesced in his decision. This resolution was only temporary. On October 19, 1981, Kershaw appeared before the court to argue that the court had made a Faretta inquiry (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)), and determined that defendant could adequately represent himself by proceeding pro se and that he should be permitted to withdraw as standby counsel because defendant had refused to talk to him or to make the case file available, and was adamant that he did not want Kershaw associated with him. Kershaw’s argument was supported by defendant who stated, “I don’t want Mr. Kershaw around me during my trial.” The court refused to permit Kershaw to withdraw as standby counsel at that time despite Kershaw’s insistence that he was unable and unprepared to represent the defendant due to defendant’s uncooperative attitude, but did appoint attorney Wilson to act as standby counsel before the trial commenced the following day.

We are satisfied that defendant by his persistence in demanding counsel of his choice waived his right to appointed counsel and that the court conducted an appropriate inquiry to satisfy itself that defendant was competent to exercise his right to self-representation and was determined to do so. Faretta holds that the sixth amendment grants an accused the right to self-representation. The record affirmatively shows that defendant was literate, competent, and understanding, that he was voluntarily exercising his informed free will, and that the court made it explicitly clear that it thought defendant was making a mistake in refusing to accept the appointment of counsel.

Defendant urges thqt during the guilt phase of his trial he unequivocally requested appointment of Zenobi, Kershaw, or other counsel and that the trial court erred in not appointing counsel at that time. Defendant’s argument is without merit. This request occurred on the second day of trial, after the jury was selected and after the state had commenced its case. The request for counsel was accompanied by a motion for a continuance. The trial court properly advised defendant that he had previously fired court appointed counsel, refused other counsel, and had chosen to exercise his constitutional right to represent himself after a proper inquiry. The court properly exercised its discretion in refusing to permit the defendant to delay the proceedings further by withdrawing from that choice during the course of the trial. As we make clear below, neither the exercise of the right to self-representation nor to appointed counsel may be used as a device to abuse the dignity of the court or to frustrate orderly proceedings.

In support of his argument that the trial court did not conduct a proper inquiry into waiver of counsel, defendant urges that the appointment of standby counsel to observe the trial was ineffectual because standby counsel refused to offer advice when requested to do so. The record clearly shows that the court was faced with an obstreperous defendant who might well attempt to disrupt and obstruct the trial proceedings. Under these circumstances, it was prudent of the court to appoint standby counsel, even over defendant’s objection, to observe the trial in order to be prepared, as well as possible, to represent defendant in the event it became necessary to restrict or terminate self-representation by shackling and gagging defendant or by removing him from the courtroom. We do not view the appointment of standby counsel over defendant’s objection as interposing counsel between defendant and his sixth amendment right to self-representation. At one point during cross-examination of a witness, when defendant appeared to be opening up a subject which it was in his interest to avoid, the trial court on its own volition suggested that defendant consult with standby counsel. Attorney Wilson, not being familiar with the case or the purpose of the cross-examination, declined to advise defendant. This was understandable because defendant had refused to cooperate by familiarizing Wilson with the case or with defendant’s trial strategy. The inability of counsel to prepare for trial and offer such assistance as defendant might request was not due to any action of the court or of the standby counsel. The fault lies squarely on defendant and his refusal to cooperate with the court and court-appointed counsels in their efforts to provide legal assistance. We note also that the court did not curtail the cross-examination and recognized the right of defendant to conduct his defense as he wished.

Defendant’s behavior and attitude posed continuing, problems for the trial court, concerned as it was with preserving both defendant’s constitutional rights and the right of the state to an orderly and timely trial. We have no criticism of the trial judge’s conduct of the trial. On the contrary, given the contumacious behavior of defendant, the judge struck an admirable balance which preserved both defendant’s and the state’s rights. Nevertheless, for the guidance of other courts, we have two comments. First, whatever his motivation, defendant burdened and delayed the court by his vacillation in not unequivocally choosing between court-appointed counsel, proceeding pro se, or obtaining his own counsel of choice. Instead, defendant persistently demanded that to which he was not entitled — counsel of his choice provided by the state. As a matter of guidance, defendants who without good cause refuse appointed counsel but do not provide their own counsel are presumed to be exercising their right to self-representation. They should be so advised and the trial court should forthwith proceed to a Faretta inquiry. Second, the appointment of standby counsel, under Faretta, is constitutionally permissible; it is not constitutionally required. Goode v. State, 365 So.2d 381 (Fla. 1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). Faretta recognizes that the trial court may, over a defendant’s objection, “appoint ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” 422 U.S. at 835 n. 46, 95 S.Ct. at 2541 n. 46. Defendant here negated any possibility that either Ker-shaw or Wilson could offer legal advice by refusing to cooperate with them. A lawyer whose only knowledge of the case is based on sitting in the courtroom observing the trial cannot realistically be expected to offer sound legal advice to a defendant. Under these circumstances there is no merit to defendant’s argument that the refusal of standby counsel to advise him amounted to a denial of counsel.

Defendant also argues that the trial court erred by not-providing appointed counsel during the sentencing phase of the trial. Following the jury verdict of guilt, the jury was excused until the following morning and the court announced that it would conduct a hearing at that time on the proposed jury instructions for the penalty phase. At that hearing, defendant presented a motion for appointment of private counsel and requested that the court grant $25,000 for the purpose of obtaining such counsel. The trial court pointed out to defendant that numerous competent attorneys had been previously appointed, that he had discharged all of them, that he was not entitled to the appointment of an attorney of his choice, that he had chosen to represent himself, and that they were now in the middle of the trial. Defendant stated in support of his motion that all the appointed lawyers were incompetent. Defendant now urges that the trial court failed to renew the offer of counsel at the sentencing stage and that this constitutes reversible error. We disagree, as this would exalt form over substance. It is clear from the record that the issue of counsel was before the court and that defendant was merely repeating his earlier meritless arguments that he was entitled to a lawyer of his choice. We note also that in capital punishment eases, the penalty phase requires the participation of the sitting jury and follows immediately upon the guilt phase. The issue is not squarely presented here of whether a defendant in a capital punishment case may elect to proceed pro se in the guilt phase and then obtain appointment of counsel and a continuance of an ongoing trial while the newly-appointed counsel familiarizes himself with the case. We are prepared to say, however, and do so in order to forewarn future defendants, that both the state and the defendant are entitled to orderly and timely proceedings. Florida’s capital punishment law, which has been repeatedly upheld, contemplates that the sentencing phase will follow on the guilt phase, using the same jury. Faretta explicitly recognizes that:

The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of “effective assistance of counsel.”

422 U.S. at 835 n. 46, 95 S.Ct. at 2541 n. 46 (emphasis supplied). We consider it implicit in Faretta that the right to appointed counsel, like the obverse right to self-representation, is not a license to abuse the dignity of the court or to frustrate orderly proceedings, and a defendant may not manipulate the proceedings by willy-nilly leaping back and forth between the choices.

Defendant complains that he was greatly prejudiced and thereby denied his constitutional right to a fair trial when he was chained to his chair in the presence of the jury. We disagree. On October 19, 1981, out of the presence of the jury, defendant was held to be in contempt of court for interrupting other speakers and refusing the court’s instructions to await his turn to speak. On October 21,1981, during the presentation of the state’s case, defendant attempted to argue a motion for mistrial in the presence of the jury. The jury was then excused and defendant attempted to argue various motions which had been previously argued, whereupon the following exchange took place:

THE COURT: I’m not going to hear any motions that another judge already heard. That motion has been already heard by Judge Orr, and that has been ruled upon, by Judge Orr.
Mr. Jones, it’s very simple. We are proceeding and we are proceeding now.
THE DEFENDANT: That’s easy for you to say.
I tell you lady, I can always interrupt the State prosecutor and as far as me being here, I wouldn’t let the trial proceed. So if you have to move me from the courtroom you have the trial without my presence.
THE COURT: Mr. Jones, you are an intelligent human being—
THE DEFENDANT: Yes.
THE COURT: Mr. Jones, we are going to proceed. You are an intelligent human being. You made a choice to represent yourself, and I would hope that you conduct yourself in an appropriate manner befitting yourself, and that we proceed in an orderly fashion, because that would be in your best interest.
However, if you choose not to do that, the only person you are hurting is yourself in the eyes of the jury. It is not going to affect me in any way, but your behavior might affect the outcome of the trial in the eyes of the jury.
I cannot prevent any action that you take yourself, only you can guide yourself in an appropriate fashion and make objections in a manner befitting a human being who is representing himself. You certainly should make objections whenever they are appropriate, and make them in a gentlemanly fashion, and in an orderly fashion.
Sir, it is up to you.
THE DEFENDANT: Your Honor, I’m quite sure everyone is intelligent, but everyone has a little stupidity in them. There is a time when ignorance has to be shown. But as far as you saying showing interest on my behalf, that’s a lie. That’s been a lie since the day the State prosecutor got the evidence of the case.
THE COURT: We are going to proceed now.
Mr. Jones, please have a seat.
THE DEFENDANT: Like I told you, your Honor, it is not going to be no procedure of this trial, not while I am present.
THE COURT: Please have a seat, Mr. Jones.
THE DEFENDANT: As far as the State prosecutor, they don’t have no business going out talking to a witness or taking depositions.
Ms. Kahgan took depositions of a witness at their home. Is that legal?
THE COURT: Mr. Jones, please have a seat.
I’m giving you a direct order before the jurors come back.
THE DEFENDANT: You can give me six months and you are not finished giving me contempt.
THE COURT: Are you asking me to give you more?
THE DEFENDANT: That’s your job if you feel you have to do that.
THE COURT: Mr. Jones, I am giving you a direct order at this point, which is to please have a seat. Let’s do that now.
THE DEFENDANT: You Honor, well—
THE COURT: Let the record reflect that the defendant is still not having a seat and that he is still — even though there have been recesses, and he has had opportunities to think about it, we are still not able to conduct this trial in an orderly fashion, and we are still waiting for Mr. Jones.
THE DEFENDANT: Yes—
THE COURT: Mr. Jones—
THE DEFENDANT: Justice — the Court won’t give me a fair trial.
THE COURT: For the fifth time, please have a seat, sir.
THE DEFENDANT: I will have a seat, your Honor, but how can you stop me from talking?
THE COURT: This is your choice. You are not going to have a seat in an appropriate fashion like you are supposed to, then I’m going to be forced to take other action.
Now, are you going to act in an intelligent fashion, or are you—
THE DEFENDANT: Your Honor, I am acting in an intelligent manner.
THE COURT: Do you need to be shackled?
THE DEFENDANT: Does that stop me from talking?
THE COURT: I’m not trying to stop you from talking. I am merely asking you to please have a seat at the defense table, and if you don’t have a seat at the defense table, I am going to shackle you there.
THE DEFENDANT: I am not finished arguing, your Honor.
THE COURT: I have ruled.
You have a new motion? I have already ruled on your other motion?
THE DEFENDANT: As far as—
THE COURT: Do you have a new motion, Mr. Jones?
THE DEFENDANT: That won’t stop me from turning over the table or talking to the jurors, would it?
THE COURT: If you do that, you would be creating the problems yourself in the eyes of the jury.
THE DEFENDANT: I wouldn’t be creating the problem. You know for yourself that there have been delays as far as continuances in this case. The State prosecutor could take a vacation and get a continuance.
THE COURT: Mr. Jones is not following the directions of this Court.
Is there any reason why you should not be found in contempt of Court, Mr. Jones?
THE DEFENDANT: Yes, ma’am; because I’m trying to argue my rights of freedom in my due process of law.
THE COURT: Anything further?
THE DEFENDANT: I have tried to show you some of the evidence in the case what the State has furnished to me, that is beneficial to me.
THE COURT: Anything further?
THE DEFENDANT: But, you won’t listen to it.
THE COURT: I find you in contempt of Court, and sentence you to six months consecutive to the previous contempt of Court, consecutive to any other previous sentences that you have been sentenced to.
Now, for the last time—
THE DEFENDANT: Your Honor, you haven’t finished giving me contempt—
THE COURT: Please shackle him to the chair.
(Thereupon, the defendant was shackled to the chair:)
THE DEFENDANT: Your Honor, I talked to Mr. Crawford, and he told me that officers aren’t supposed to put their hands on me.
THE COURT: Please bring the jurors out.
(Thereupon, the following proceedings were had in the presence of the jury:)
THE COURT: Okay, the jurors are all now present and so is the defense and the State.
Will the State please call their next witness?
THE DEFENDANT: I would like to question the jurors, your Honor.
THE COURT: On what point of law, sir? What area?
THE DEFENDANT: I would like to question them on a point that you don’t want me to say.
THE COURT: It’s going to wait. We are going to proceed.
THE DEFENDANT: It can’t wait.
THE COURT: It will wait.
THE DEFENDANT: It might be beneficial as far as the trial being a mistrial.
THE COURT: We are going to proceed with this witness now.
Please raise your right hand and be sworn.
THE DEFENDANT: Jurors — do you see how they treat me? They handcuff me, because I’m standing up for my rights and talking up for my rights.
THE COURT: Please have a seat, sir.
THE DEFENDANT: I would like to ask the jurors a question.
THE COURT: Okay, let’s trade chairs—
THE DEFENDANT: Your Honor, that couldn’t stop me from talking.
THE COURT: Trade chairs.
(Thereupon, the defendant was moved to another chair:)
THE COURT: Has the witness been sworn?
THE DEFENDANT: There won’t be a trial.
Thereupon: DAVID LYNCH was called as a witness on behalf of the State, sworn, and testified as follows:
THE DEFENDANT: (Defendant singing).
She knows damn well I am supposed to get a mistrial.
What person is going to look at the headline of a paper and don’t read it? Ma’am, you are crazy.
She even said don’t read in the papers or look at the papers—
THE COURT: All right, let’s try to proceed. You may proceed, Mr. Laeser, sir.
Please talk loud and clear. You are going to have to speak up very loudly. Let’s Proceed.

The direct examination proceeded without further interruption following which the court asked:

THE COURT: Is there any cross?
THE DEFENDANT: I’d like to cross-examine the witness, and I’d like to say that I will conduct myself in a manner respectable if I am unhandcuffed.
THE COURT: All right, please, let’s remove the ‘cuffs and let’s proceed.

The record clearly shows the utter lack of merit in defendant’s argument. Whatever prejudice defendant suffered resulted from his own willful attempt to disrupt, indeed stop, the orderly proceedings of the court. The trial court’s action in shackling defendant was justified. As the United States Supreme Court said:

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.

Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970).

Binding or shackling the' defendant is not only a constitutionally permissible method of handling an obstreperous defendant but, under the circumstances here, it was the least restrictive method available to the trial court. Defendant now urges that shackling was not only prejudicial but was inappropriate since defendant could continue to orally obstruct the proceedings. This is the same argument which defendant defiantly made to the trial court. The obvious answer to that argument is that the shackling worked and, had it not worked, the court could have ordered more restrictive measures. After his outburst of song when the jury returned, defendant conducted himself properly during the direct examination and agreed to conduct himself properly thereafter, at which point he was unshackled. Had he not done so, we assume the court would have resorted to the more restrictive methods of binding and gagging or removal from the courtroom.

Defendant’s third issue challenges the trial court’s failure to find a violation of the speedy trial rule. Defendant filed a motion for a speedy trial on June 2, 1981, and a motion for discharge because of speedy trial violation, on August 3, 1981. The trial court conducted a hearing on these motions on August 31, 1981, and issued an order dated September 17, 1981. The trial court found that defendant was not continuously available for trial during the speedy trial period because of the filing of a motion to be psychiatrically examined and the filing and arguing of numerous other pleadings, including demands for discovery. The trial court concluded that there was clear evidence that defendant had not diligently investigated his case and was not timely prepared for trial at the time his demand for speedy trial was filed. We agree with the trial court. The record shows that during the period of May 26 to June 2, alone, defendant filed seventeen written pro se motions and one memorandum of law. These motions covered a variety of subjects: appointment of counsel, para-legals, various experts, and investigators; suppression of evidence; bill of particulars; striking of evidence; discovery; and production of evidence. (At least in part, these pro se motions duplicated the earlier efforts of court-appointed counsel during the period of July, 1980, through May, 1981. Defendant was apparently acting under the assumption that he could fire his counsel and start afresh without reference to previous actions of his counsel.) We note also that during this period and continuing until September 1, 1981, defendant was engaged in firing and rejecting court-appointed counsel and attempting to obtain appointment of specifically named counsel.

Florida Rule of Criminal Procedure 3.191(c) provides that “[a] demand for speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and that he is prepared or will be prepared for trial within 5 days.” It is patently clear from the record that defendant was not prepared for trial on June 2, 1981, and could not be prepared within five days. The demand for speedy trial was spurious. We long ago rejected the notion that a defendant could “control the criminal docket by merely filing spurious demands for the speedy trial for which he is not, in fact, prepared.” State ex rel. Hanks v. Goodman, 253 So.2d 129, 130 (Fla.1971). State ex rel. Ranalli v. Johnson, 277 So.2d 24 (Fla.1973); Turner v. State ex rel. Pellerin, 272 So.2d 129 (Fla.1973). Defendant’s argument is without merit.

Defendant next argues that the trial court erred by permitting a state witness to testify as to the plea negotiations entered into by defendant and by permitting the prosecutor and a state witness to comment on the failure of defendant to take a polygraph examination. We address these issues together. The record shows that defendant voluntarily approached the chief investigator in the case, was given a Miranda warning, and stated that he did not want his lawyer present. The chief investigator advised defendant that he could not make any bargains but would advise the prosecutor of any statements made or evidence developed, and that defendant agreed to take a polygraph test in order to verify his truthfulness, later declining to do so. Defendant made a number of contradictory statements to the chief investigator which were partially inculpato-ry and partially exculpatory, but none of which directly implicated defendant in the murders. We note initially that this incident occurred months before defendant expressed dissatisfaction with and discharged his original appointed counsel. Thus, defendant’s approach to the chief investigator was an early manifestation of his belief that he could handle his own case without the assistance of legal counsel and would do so against the advice of counsel. In any event, no objection was made at trial to the testimony of the state witness on the plea negotiations or to the comments of the witness or prosecutor on defendant’s refusal to take a polygraph examination. Thus, the issue was not preserved for appeal. Castor v. State, 365 So.2d 701 (Fla.1978). We note that even had the issue been preserved for appeal by a contemporaneous objection, the error would have been harmless in light of the fact that other evidence supporting the convictions is overwhelming. United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Odom v. State, 403 So.2d 936 (Fla.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).

Finally, defendant urges that there was insufficient evidence linking him to the murders. This argument is without merit and requires no further comment.

In addition to reviewing the specific arguments raised by defendant, we have also reviewed the record pursuant to Florida Rule of Appellate Procedure 9.140(f) and conclude that a new trial is not required.

Defendant raises no issues concerning his death sentence. The jury recommended by an 11-1 majority that defendant be sentenced to death. The trial judge entered a written order imposing the death penalty based on six aggravating and zero mitigating factors. Of these six aggravating factors, four were common to all three murders, the fifth factor was applicable only to the Uptgrow murder, and the sixth factor was applicable only to the murders of Hamilton and Hill. We find that factor five, murder for pecuniary gain, im-permissibly doubles up factor three, murder committed while engaged in, or during the flight after, the commission of a robbery and burglary. The error was harmless. Vaught v. State, 410 So.2d 147 (Fla. 1982).

In sum, we find that the trial court properly found five aggravating factors and no mitigating factors. The facts supporting the convictions and sentences of death are clear and convincing and are established beyond a reasonable doubt.

It is therefore our opinion that the judgments and sentences should be affirmed.

It is so ordered.

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


source: Caselaw Access Project

author: BASKIN, Judge. SCHWARTZ, Chief Judge PER CURIAM. FERGUSON, Judge

license: Public Domain

text:
    The STATE of Florida, Appellant, v. C.C., E.V., C.A.Q., A.M.E., and S.E., juveniles, Appellees.
    Nos. 81-2564, 82-666, 82-797 and 82-1825.
    District Court of Appeal of Florida, Third District.
    March 24, 1983.
    On Rehearing En Banc Sept. 27, 1983.
    Jim Smith, Atty. Gen., and Marti Rothen-berg and Calianne P. Lantz, Asst. Attys. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and BASKIN, JJ.
   ON MOTIONS TO DISMISS

BASKIN, Judge.

The state’s right to appeal is purely statutory. Whidden v. State, 159 Fla. 691, 32 So.2d 577 (1947); State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976). Because the Florida Juvenile Justice Act, Chapter 39, Florida Statutes (1981) contains no provision authorizing an appeal by the state, we grant appellees’ motions to dismiss. We expressly disagree with the decision of the Fifth District Court of Appeal in State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), review denied, 419 So.2d 1201 (Fla.1982) insofar as it finds a constitutional right of appeal in the state. Furthermore,, in our view, Article V, section 4(b)(1) of the Constitution of the State of Florida permits interlocutory review only in cases in which appeal may be taken as a matter of right.

Appeals dismissed.

SCHWARTZ, Chief Judge

(specially concurring).

I concur with the court that there is no jurisdiction to consider state appeals in juvenile cases either from adverse final judgments or interlocutory orders. I wish, however, to add a few observations on each of these two separate but interrelated subjects.

As I see it, the basic flaw in the reasoning and holding of State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA 1982), rev. denied, 419 So.2d 1201 (Fla.1982) is that it fails to recognize that, arguably unlike the rule in civil cases, Article V, Section 4(b) of the Constitution grants no right to the state, or the attorney general as its representative, to appeal from final judgments entered against it in the exercise of its law enforcement functions. This is demonstrated both by the express statements of our courts to that effect, e.g., State v. Harris, 136 So.2d 633, 634 (Fla.1962) (“[W]e have no doubt that [the legislature] can restrict the state in seeking review by certiorari of adverse decisions in criminal cases just as it has limited its right to appeal through Sec. 92j.07.”)', State v. Matera, 378 So.2d 1283, 1286-87 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980) (“[T]hose doors open to the State in initiating appellate review are limited to a specific set of circumstances, see Sections 924.07 and 924.-071 Florida Statutes (1977), and Fla.R. App.P. 9.140(c)”), and by the obvious unacceptability of the logical extension, indeed the precise content of the contrary rule announced in W.A.M., under which the state would have the right to appeal from a final judgment of acquittal in a criminal case. But see, e.g., Watson v. State, 410 So.2d 207, 208, n. 1 (Fla. 1st DCA 1982); State v. Budnick, 237 So.2d 825 (Fla. 2d DCA 1970), cert. denied, 240 So.2d 638 (Fla. 1970). Since the state’s right to appeal from final judgments is purely statutory, and no legislative authorization for review of final orders in juvenile cases now ex-ists, the appeals in case nos.. 82-666 and 82-1825 must therefore be dismissed.

Insofar as the interlocutory orders, case nos. 81-2564 and 82-797, are concerned, I would prefer to place my principal reliance for dismissal on the fact that the supreme court has, in my view, simply not yet adopted any rules pursuant to Article V, Section 4(b)(1) for state review of such orders in juvenile cases. Fla.R.App.P. 9.140(c) concerns only appeals from non-final orders in “criminal cases,” as stated in the very title of Fla.R.App.P. 9.140. As we have seen, however, “criminal” cases do not include juvenile proceedings. State v. D.H., 340 So.2d 1163 (Fla.1976); see R.J.B. v. State, 408 So.2d 1048 (Fla.1982); compare Chapter 39 with Chapter 924, Fla.Stat. (1981).

Moreover, since, as I believe, the supreme court has not generally provided for review of any interlocutory orders in these cases, I think it unwise and perhaps impermissible for us to circumvent that decision by treating a thus-unauthorized notice of appeal as a petition for certiorari. The effect of this in the case, for example, of an order suppressing a confession, which is before us in case no. 81-2564, would be for this court to write a juvenile rule equivalent to criminal Fla.R.App.P. 9.140(c)(l)B. But we have no authority to and should not permit review in an instance in which the supreme court has deliberately declined to do so. In this respect, I thoroughly agree with Judge Cowart’s dissenting view in State ex rel. Alton v. Conkling, 421 So.2d 1108 (Fla. 5th DCA 1982). But cf. State v. D.C.W., 426 So.2d 970, n. 1 (Fla. 4th DCA 1982) [7 FLW 1889].

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

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

Upon consideration en banc the court adheres to the majority and concurring opinions.

FERGUSON, Judge

(dissenting).

I entirely disagree with the majority holding that there is no vehicle for review of an order of the juvenile court — by appeal or certiorari — and would, without burdening the Southern Reporter with another opinion, adopt the holding and sound reasoning of State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983) (which is critical of the original opinion in this case) and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982). Furthermore, R.J.B. v. State, 408 So.2d 1048 (Fla.1982) makes it very clear that Florida Rule of Appellate Procedure 9.140 is applicable to juvenile proceedings.

HUBBART, DANIEL S. PEARSON and JORGENSON, JJ., concur.

       Article V, section 4(b)(1) provides:
      (b) JURISDICTION.—
      (1) District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.

      . The decision in the primary case relied upon in W.A.M., Crownover v. Shannon, 170 So.2d 299 (Fla.1964), was grounded upon the supreme court's express holding that the habeas corpus proceeding in question there was "civil in nature, and not criminal.” 170 So.2d at 301.

      . This presents more than an ephemeral threat which would dissipate in the face of the double jeopardy clause. First, under United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), there is no longer a per se federal constitutional double jeopardy rule which would invalidate a state appeal from a judgment of acquittal. Second, even if such an appeal were moot, the court could still entertain it if, as might often be the case, the well-recognized exceptions to the mootness doctrine were satisfied. 3 Fla.Jur.2d Appellate Review § 289 (1978).

      . It is clear that the provisions for state final appeals in criminal cases, Secs. 924.02, 924.05, Fla.Stat. (1981) do not apply to juvenile proceedings. State v. D.H., 340 So.2d 1163 (Fla.1976); compare Sec. 39.11 with Sec. 775.08, Fla.Stat. (1981).

      . Contrary to the suggestion in State v. D.C.W., 426 So.2d 970, n. 1 (Fla. 4th DCA 1982), I think it obvious that the court cannot save an appeal from a final judgment which it has no jurisdictional authority to consider by treating it as a petition for certiorari. Stein v. Darby, 134 So.2d 232 (Fla. 1961); Jacksonville, T. & K.W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290 (1894); State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976); 3 Fla.Jur.2d Appellate Review § 467 (1978).

      . Note 3, supra.

      . Since they hold merely that otherwise authorized juvenile appeals are governed by criminal rather than civil appellate procedural rules, D.S.K. v. State, 396 So.2d 730 (Fla. 5th DCA 1981) and In the Interest of D.J., 330 So.2d 34 (Fla. 4th DCA 1975) are not to the contrary.

      . I recognize that the same observation may well apply to our review by certiorari, as in State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), of pre-trial rulings in criminal cases which are not enumerated in Fla.R.App.P. 9.140. See also note 4, supra.


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    The STATE of Florida, Appellant, v. A.M., a juvenile, Appellee.
    No. 81-2565.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Kirk W. Munroe, Coral Gables, for appel-lee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we dismiss the State’s appeal from the trial court’s order dismissing the charges against the juvenile and decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify that this decision directly conflicts with State v. J.P.W, 433 So.2d 616 (Fla. 4th DCA 1983), and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla. 1982). We further certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file plenary appeals in juvenile cases, and, if not, may this court review by certiorari an order dismissing a petition for delinquency?”

DANIEL S. PEARSON, Judge,

concurring.

Because this court sitting en banc in State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983), has, over my dissent, decided these issues adversely to the State, I reluctantly concur in the panel’s decision.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. S.L., a juvenile, Appellee.
    No. 82-1414.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we reluctantly dismiss the State’s appeal from the trial court’s order suppressing evidence and reluctantly decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify that this decision directly conflicts with State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983), and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla. 1982). We further certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file interlocutory appeals in juvenile cases, and, if not, may this court review by certiorari an order suppressing evidence in such a case?”


text:
    The STATE of Florida, Appellant, v. R.B., a juvenile, Appellee.
    No. 82-1610.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Jim Smith, Atty. Gen., and Steven Jacob, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

The motion to dismiss is granted on the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc). We certify that this decision directly conflicts with State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla. 1982).


text:
    The STATE of Florida, Appellant, v. J.B., a juvenile, Appellee.
    No. 82-2347.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we reluctantly dismiss the State’s appeal from the trial court’s order dismissing the charges against the juvenile and reluctantly decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify that this decision directly conflicts with State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983), and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982). We further certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file plenary appeals in juvenile cases, and, if not, may this court review by certiorari an order dismissing a petition for delinquency?”


text:
    The STATE of Florida, Appellant, v. R.H., a juvenile, Appellee.
    No. 82-2645.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we dismiss the State’s appeal from the trial court’s order dismissing the charges against the juvenile and decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify that this decision directly conflicts with State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983), and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla. 1982). We further certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file plenary appeals in juvenile cases, and, if not, may this court review by certiorari an order dismissing a petition for delinquency?”

DANIEL S. PEARSON, Judge,

concurring;

Because this court sitting en banc in State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983), has, over my dissent, decided these issues adversely to the State, I reluctantly concur in the panel’s decision.


text:
    The STATE of Florida, Appellant, v. J.W., a juvenile, Appellee.
    No. 83-31.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Arthur L. Rothenberg, Miami, for appel-lee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we reluctantly dismiss the State’s appeal from the trial court’s order dismissing the charges against the juvenile and reluctantly decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify that this decision directly conflicts with State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983), and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982). We further certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file plenary appeals in juvenile cases, and, if not, may this court review by certiorari an order dismissing a petition for delinquency?”


text:
    The STATE of Florida, Appellant, v. J.M., a juvenile, Appellee.
    No. 82-353.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we dismiss the State’s appeal from the trial court’s order granting a motion to suppress a confession in a juvenile case and decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file an interlocutory appeal from an order granting a motion to suppress in a juvenile case, and, if not, may this court review that order by certiorari?”

Appeal dismissed.


text:
    The STATE of Florida, Appellant, v. V.V., a juvenile, Appellee.
    No. 83-274.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Jim Smith, Atty. Gen., and Marti Rothen-berg, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we dismiss the State’s appeal from the trial court’s order dismissing the charges against the juvenile and decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify that this decision directly conflicts with State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983), and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla. 1982). We further certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file plenary appeals in juvenile cases, and, if not, may this court review by certiorari an order dismissing a petition for delinquency?”

Appeal dismissed.


text:
    The STATE of Florida, Appellant, v. G.D.P., a juvenile, Appellee.
    No. 82-352.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

The motion to dismiss is granted on the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc). We certify that this decision directly conflicts with State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), pet. for review denied, 419 So.2d 1201 (Fla.1982).


text:
    The STATE of Florida, Appellant, v. J.D., a juvenile, Appellee.
    No. 82-2216.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.

      Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

The motion to dismiss is granted on the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983); opinion filed September 27, 1983) (en banc). We certify that this decision directly conflicts with State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA 1982), ;pet. for review denied, 419 So.2d 1201 (Fla. 1982).


author: BASKIN, Judge.

text:
    The STATE of Florida, Petitioner, v. R.F., a juvenile, Respondent.
    No. 83-2371.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Jim Smith, Atty. Gen., and G. Bart Billb-rough, Asst. Atty. Gen., for petitioner.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for respondent.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

The state’s petition for writ of certiorari seeking review of the trial court’s order granting juvenile R.F.’s motion to suppress statements is hereby dismissed on the authority of State v. C. C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc).

We certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“May this court review by certiorari an order suppressing evidence in a juvenile case?”


text:
    The STATE of Florida, Appellant, v. K.H., a juvenile, Appellee.
    No. 83-1572.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Jim Smith, Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

The motion to dismiss is granted on the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc). We certify that this decision directly conflicts with State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), pet. for review denied, 419 So.2d 1201 (Fla.1982).


author: HUBBART, Judge.

text:
    Charles Albert LEVIN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1681.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    • Bennett H. Brummer, Public Defender and Bruce A. Rosenthal and Robert Schrank, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and DANIEL S. PEARSON, JJ.
   HUBBART, Judge.

The defendant Charles Albert Levin appeals his conviction and sentence for carrying a concealed firearm entered below after a plea of nolo contendere in which the denial of his pre-trial motion to suppress the firearm herein was specifically reserved for review. We reverse.

The evidence pertinent to the search and seizure issue herein reveals that the sole basis for the police temporarily detaining the defendant Levin under the stop and frisk statute [§ 901.151, Fla.Stat. (1981)] was that (a) he was walking along the public street at 3:00 or 3:30 a.m. in a “high class” residential area with a companion, (b) either he or his companion had a fishing pole and both were proceeding toward “some water” presumably open to the public, and (c) there had been prior residential burglaries committed in the area. This showing, in our view, is patently insufficient to constitute a founded suspicion that the defendant was involved in any kind of criminal activity. Thus the police stop and subsequent frisk of the defendant, revealing the firearm in question, was unreasonable within the meaning of the Fourth Amendment to the U.S. Constitution and Article I, Section 12 of the Florida Constitution, and the said firearm was inadmissible in evidence below. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Mullins v. State, 366 So.2d 1162 (Fla.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979).

It has long been recognized in this state that being out on the public street during late and unusual hours cannot constitute a valid basis to temporarily detain and frisk an individual under the stop and frisk law. See e.g., Mullins v. State, supra; State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978) and cases collected; Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976); Riley v. State, 266 So.2d 173 (Fla. 4th DCA 1972). Moreover, this result is not changed by the fact that the area in which the individual is traveling is one which has experienced crimes in the past. Jackson v. State, 319 So.2d 617 (Fla. 1st DCA 1975). This is plainly so because a contrary rule would impose a curfew on any person walking during late and unusual hours in most parts of our large metropolitan centers, which, unfortunately, have been plagued in recent years by various kinds of criminal activity. Even residents in these areas would be precluded from taking walks late at night without being subject to temporary detentions and frisks. Something more, then, is required than simply being out on the street during late and unusual hours in an area where crimes have been committed in the past before the police may properly stop and detain an individual for possible criminal activity.

The state relies on the cases of State v. Hundley, 423 So.2d 548 (Fla. 4th DCA 1982) and Boal v. State, 368 So.2d 71 (Fla. 2d DCA 1979). We believe the Hundley case is distinguishable on the ground that the defendant was not only out on the street at late and unusual hours in an area where there had been home burglaries, but was also carrying a large stereo set. This latter fact, when combined with the other factors in the case, clearly establishes some founded suspicion that the defendant may have had stolen property in his possession. Indeed, this additional factor has proven decisive in cases throughout the country which have sustained similar stop-and-frisks on the street. W. LaFave, 3 Search and Seizure 69-71 (1978) and cases collected. In the instant case, however, there is no evidence that the defendant Levin had merchandise under his arm while on the street; on the contrary, he or his companion had a fishing pole and were proceeding toward “some water” where presumably they could fish.

As for Boal, we see no real basis for distinguishing the case and must respectfully decline to follow it. In Boal, the defendant was stopped because he was on the public street late one night in an area where there had been residential burglaries. We disagree with the case because it, in effect, permits police officers to temporarily stop anybody who is out on the public street during late and unusual hours in most parts of crime-prone metropolitan areas. As we read the case law in this field, that is an insufficient basis for stopping someone under the stop and frisk law — at least in the absence of widespread civil disorders or war. This is as it should be, else we are surely a long way down the road toward creating a police state with enforceable curfews in our large metropolitan centers.

The conviction and sentence under review is reversed and the cause is remanded to the trial court with directions to discharge the defendant.


author: DANIEL S. PEARSON, Judge.

text:
    FINST DEVELOPMENT, INC., Appellant, v. Isaac BEMAOR, Sergio Goldemberg, David Saul, Vulf Mintz, Luba Mintz and Zelman Mintz, Appellees.
    Nos. 83-619, 83-1714.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    See also, Fla.App., 449 So.2d 292.
    Stabinski & Funt, P.A., Richard M. Gale, Miami, for appellant.
    Fuller & Feingold and John P. Fuller, Miami Beach, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON,-. JJ.
   ON MOTION FOR REVIEW

DANIEL S. PEARSON, Judge.

Finst Development, Inc. appealed a money judgment entered against it and superseded the judgment by posting an appropriate bond. While that appeal (Case No. 83-619) was pending before us, the trial court, having reserved jurisdiction to do so, entered a judgment against Finst for attorneys’ fees and costs. After Finst appealed the latter judgment (Case No. 83-1714), the trial court entered an order staying execution of such judgment pending our determination of the necessity of Finst posting a supersedeas bond to obtain a stay. We vacate the stay ordered by the trial court upon a holding that Finst is entitled to stay the enforcement of the judgment for attorneys’ fees and costs only if it complies with Florida Rule of Appellate Procedure 9.310(b)(1) by posting a good and sufficient bond as required by the rule.

Finst contends that its posting of a bond superseding the first judgment deprived the trial court of the jurisdiction to enter the later judgment for attorneys’ fees and costs. It recognizes, as it must, that the mere fact that the first judgment is on appeal did not deprive the trial court of jurisdiction to enter any further order or judgments in the cause so long as “what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court’s power and authority to decide the issues presented to it by the appeal....” Bailey v. Bailey, 392 So.2d 49, 52 (Fla. 3d DCA 1981). Cf. Seaboard Coast Line Railroad Co. v. Lantz, 405 So.2d 495 (Fla. 3d DCA 1981). Since the act of taxing attorneys’ fees and costs does not affect or interfere with the subject matter of the appeal, Dade County v. Davidson, 418 So.2d 1231 (Fla. 3d DCA 1982); Ruby Mountain Construction & Development Corp. v. Raymond, 409 So.2d 525 (Fla. 4th DCA 1982); Bailey v. Bailey, 392 -So.2d 49, the trial court had jurisdiction to 'enter a judgment therefor, unless as Finst contends, the posting of a bond superseding the first judgment deprived it of jurisdiction.

Finst relies on El Prado Restaurant, Inc. v. Weaver, 259 So.2d 524 (Fla. 3d DCA 1972). To be sure, this court in El Prado held that once an appeal from the main judgment was pending and that judgment had been superseded by the posting of bond, the trial court was powerless to conduct subsequent proceedings and enter a judgment for attorneys’ fees and costs and that, therefore, the later ineffective judgment need not be superseded, and the order under review, which authorized issuance of execution on the judgment for attorneys’ fees and costs unless supersede-as bond was posted, was inoperative.

It is true that, as El Prado states, a supersedeas “stays further proceeding[s] in relation to the judgment until the appellate court acts thereon.” Id. at 525. But the “proceeding^] in relation to the judgment” contemplated by that announced rule are those which seek to enforce the superseded judgment as, for example, by writ of execution, see, e.g., Bacon v. Green, 36 Fla. 313, 18 So. 866 (1894), by writ of garnishment, see, e.g., Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Co. v. Barrett, 174 So.2d 417 (Fla. 3d DCA 1965), or by discovery in aid of execution, see, e.g., Fehlhaber v. Fehlhaber, 664 F.2d 260 (11th Cir. 1981). See generally 4A C.J.S. Appeal & Error §§ 625-679; 83 C.J.S. Supersedeas §§ 1-12. A proceeding seeking attorneys’ fees and costs pursuant to the primary judgment is not a proceeding to enforce the primary judgment, and a supersedeas of such primary judgment does not, any more than the appeal therefrom, divest the trial court of jurisdiction to entertain such proceeding, to enter the ancillary judgment, and to provide for its enforcement unless such ancillary judgment is independently superseded.

Accordingly, the trial court’s stay of enforcement of the judgment for attorneys’ fees and costs shall remain in effect for seven days from the date hereof, after which Finst shall be entitled to a further stay only if it chooses to post a good and sufficient supersedeas bond in accordance with Florida Rule of Appellate Procedure 9.310(b)(1).

      .The holding in City of Miami Beach v. Cummings, 266 So.2d 122 (Fla. 3d DCA 1972), cert. denied, 273 So.2d 761 (Fla.1973), is to the same effect.

      . Bacon and Pennsylvania Threshermen are the only cases relied on in El Prado.

      . To the extent that El Prado is read to mean that any proceeding related to the judgment cannot be conducted by the trial court pending appeal, it has obviously been receded from in our later cases. See Dade County v. Davidson, 418 So.2d 1231; Bailey v. Bailey, 392 So.2d 49. In Bailey, we noted that "we do not agree that the test to determine loss of jurisdiction ... [is] whether the trial court is proceeding in a matter related to the final judgment ... [but rather] the proper test is whether the trial court is proceeding in a matter which affects the subject matter on appeal.” Id. at 52 n. 7 (emphasis in original).


text:
    FINST DEV., INC., Appellant, v. Isaac BEMAOR, Sergio Goldemberg, David Saul, Vulf Mintz, Luba Mintz and Zelman Mintz, Appellees.
    Nos. 83-619, 83-1714.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Rehearing Denied April 13, 1984.
    See also, Fla.App., 449 So.2d 290.
    Richard M. Gale, Stabinski & Funt, Miami, for appellant.
    Fuller & Feingold and John Fuller, Miami Beach, for appellees.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

This is an appeal from a final summary judgment rescinding certain contracts for the sale of condominium units, returning the deposits thereon to the plaintiff/buyers, and awarding attorney’s fees for the plaintiff/buyers. The material facts of this case, although complex, are undisputed on this record. We conclude that based on these facts the contracts herein were properly rescinded as a matter of law for failure of the defendant/seller to comply substantially with certain provisions of the Florida Condominium Act, §§ 718.202, 718.-503, 718.504, Fla.Stat. (1981), and the Federal Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq. (1982); see Dorchester Development, Inc. v. Burk, 439 So.2d 1032 (Fla.3d DCA 1983). We also agree that as a matter of law the counterclaim herein has no merit based on this record. Finally, we conclude that the attorney’s fees awarded below were reasonable and authorized by Section 718.-506(2), Florida Statutes (1981). See Pfohl v. Pfohl, 345 So.2d 371, 379 (Fla.3d DCA 1977). We accordingly affirm in all respects the final summary judgment under review.

Affirmed.


author: SHARP, Justice. FRANK D. UPCHURCH, Jr., Judge,

text:
    Thomas John CURTIN and Thomas P. Curtin, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, etc., Appellee.
    No. 82-599.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 1984.
    Herbert H. Hall, Jr., of Maher, Over-chuck, Langa, Cate & Lobb, P.A., Orlando, for appellants.
    James 0. Driscoll, of Driscoll, Langston & Kane, P.A., Orlando, for appellee.
   SHARP, Justice.

This case poses the question of whether or not State Farm Mutual Automobile Insurance Company’s insurance policies provide Thomas John Curtin with uninsured motorist coverage. The trial court entered a summary final judgment for State Farm. We reverse because we interpret the policies as providing coverage, and were we to give effect to an exclusion from coverage in this case, it would violate the mandate of Florida’s Uninsured Motorist Statute.

Thomas John, the minor son of the named insured, Thomas P. Curtin, was a resident of his father’s household at the time of the accident in 1979. He was injured while riding as a passenger in a car owned by his father, which was being negligently driven by Steven Calhoun, a friend of the family. Steven was driving with Curtin’s permission.

The father had three separate liability insurance policies, all issued by State Farm, on three different vehicles owned by him, which contained identical provisions regarding uninsured motorist coverage. Each policy provided there was no liability coverage for bodily injury to “any insured or any member of an insured’s family residing in the insured’s household.” Uninsured motor vehicle coverage was provided for:

[Bjodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

Uninsured Motor Vehicles were defined as:

1. a land motor vehicle not insured or bonded for bodily injury liability at the time of the accident; (Emphasis added) or

2. a land motor vehicle insured or bonded for bodily injury liability at the time of the accident; but

a. the limits of liability are less than required by the financial responsibility act of the state where your car is mainly garaged; or

b. the limits of liability are less than the limits you carry for uninsured motor vehicle coverage under this policy; or

c.the insuring company denies coverage or is or becomes insolvent;

An [uninsured motor vehicle does not include a land motor vehicle:

1. insured under the liability coverage of this policy.

Appellant concedes on appeal that he is barred from any recovery under the policy insuring the Cadillac, the car in which he was injured. The family exclusion provision of the liability portion of that policy would clearly bar his recovery there. Under the uninsured motor vehicle coverage, he is also clearly barred by the language of the policy which provides that the vehicle insured under that policy cannot be considered to be an uninsured motor vehicle.

This kind of exclusion has been upheld by the Florida Supreme Court in Reid v. State Farm Fire & Casualty Company, 352 So.2d 1172 (Fla.1977). The court declared that this was an allowable exception to the general rule that an insurer will not be allowed to limit the applicability of uninsured motorist protection. In Reid, the court pointed out that, as in this case,

the family car, which is defined in the policy as the insured motor vehicle, is the same vehicle which appellant, under the uninsured motorist provision of the policy, claims to be an uninsured motor vehicle.

Id. at 1174. But Reid does not answer the question in this case as to whether or not the two other insurance policies on Curtin’s other vehicles also exclude uninsured motorist coverage.

State Farm argues that the uninsured motor vehicle insuring provisions of the policies on Curtin’s other cars do not include this accident because Curtin’s Cadillac was insured with a liability policy issued by State Farm. The policies on the other vehicles state that an uninsured motor vehicle means:

1. a land motor vehicle not insured or bonded for bodily injury liability at the time of the accident. (Emphasis added).

State Farm argues that the fact that this plaintiff was barred from coverage under that policy does not make the car uninsured.

The appellant argues that the coverage provisions of the policies permit an interpretation which reach this accident, and as such, they should be liberally interpreted in favor of coverage. The insuring contract for uninsured motorist coverage extends to an insured vehicle where “the insuring company ... denied coverage,” as State Farm did in this case. In addition, the definition of “uninsured motor vehicle” in the policies seems to bolster this view because it is defined as a vehicle which is not insured under that 'policy. One plausible inference from this negative definition is that an “uninsured motor vehicle” may be one insured under other policies. In this case, Curtin had two other insurance policies on vehicles other than the one involved in the accident. As to those policies, the Cadillac could be an “uninsured” vehicle because it was insured under a different policy.

There is no question here but that the Curtin son is a “class-one” insured under his father’s policies. As such, the uninsured motorist coverage of his father’s policies follows him, no matter where or how he is injured by an uninsured motorist. Hines v. Wausau Underwriters Insurance Company, 408 So.2d 772 (Fla. 2d DCA 1982); Travelers Insurance Company v. Spencer, 397 So.2d 358 (Fla. 1st DCA 1981). It is also clear (for purposes of the summary judgment) that his injuries were caused by an uninsured motorist. State Farm urges that it has excluded from coverage under its policies all injuries to family members riding in a family-owned vehicle that was insured, but for whom liability coverage was excluded, regardless of the circumstances.

This interpretation creates a class of vehicles exception to uninsured motorist vehicle coverage, which has been repeatedly condemned by the Florida courts in interpreting and enforcing the policy of Florida’s Uninsured Motorist Statute. Section 627.727(1), Florida Statutes (1981), requires all insurers offering liability policies on cars registered or garaged in Florida to offer uninsured motorist vehicle coverage

for the protection of persons injured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury ....

Subsection 627.727(2)(a) mandates that the limits of uninsured motorist coverage be “not less than the limits of bodily injury liability insurance purchased by the named insured_” Clearly, had Calhoun had liability insurance, the Curtin son would have been covered.

The policy of Florida’s Uninsured Motorist Statute is to allow “every insured ... to recover for the damages he or she would have been able to recover if the offending motorist had maintained a policy of liability insurance.” Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229, 234 (Fla.1971) (citing Standard Accident Insurance Company v. Gavin, 184 So.2d 229, 232 (Fla. 1st DCA 1966)). In Mullis, State Farm tried to exclude from uninsured motorist coverage bodily injury to an insured while occupying a vehicle owned by the insured or another family member if the vehicle was not insured under that policy. As Justice Erwin pointed out, this exclusion from coverage violates the public policy of Florida’s Uninsured Motorist Statute:

[Uninsured motorist coverage under the statute provides bodily injury family protection as if, and to the extent, the uninsured motorist had been covered by a standard auto liability insurance policy under the Financial Responsibility Law, and no exclusions from such protection are permissible. If an automobile liability policy insured negligently hits another with his insured automobile, it is immaterial whether such other is a pedestrian or occupies any particular vehicle; the insured’s carrier is liable. (Emphasis added).

Id. at 236.

State Farm’s exclusion in Mullís for family-owned cars not insured under the policy claimed under is very similar to the exclusion from coverage argued for by State Farm under the Curtin policies: all family-owned vehicles which are insured under other policies. Such exceptions from coverage have been uniformly rejected or denied by the courts. See Hines; Boulnois v. State Farm Mutual Automobile Insurance Company, 286 So.2d 264 (Fla. 4th DCA 1973), cert. denied, 294 So.2d 658 (Fla.1974); Hartford Accident & Indemnty Company v. Mason, 210 So.2d 474 (Fla. 3d DCA 1968).

The only break in the phalanx of cases requiring that uninsured motorist coverage parallel the theoretical liability coverage of the uninsured motorist has been the family member and fellow employee exclusions in cases involving one insurance policy on the automobile involved in the accident. See Florida Farm Bureau Insurance Company v. Government Employees Insurance Company, 387 So.2d 932 (Fla.1980); Hartford Accident & Indemnity Company v. Fonck, 344 So.2d 595 (Fla. 2d DCA 1977), cert. denied, 359 So.2d 1214 (Fla.1978).

The Florida Supreme Court, in Reid, held that a car could not be insured (under the liability section) and uninsured (under uninsured motorist coverage) in the same policy. The court noted that public policy would allow family member exclusions from coverage to protect insurance companies from “over friendly or collusive lawsuits between family members.” Id. at 1173. But the problem with applying Reid to this case is that the exclusion sought by State Farm would encompass all kinds of motorists other than family members: felons and thieves; friends and acquaintances. The actual negligent driver here was not a family member.

We think Lee v. State Farm Mutual Automobile Insurance Company, 339 So.2d 670 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 954 (Fla.1977), is controlling in this case. In Lee, the plaintiff was injured in a car driven by his brother. The brother had a liability policy, but it contained a family member exclusion. Suit was brought for uninsured motorist coverage under the plaintiff’s father’s policy on another car. In finding coverage, the court relied in part on the language of the insuring agreement which defined uninsured motor vehicle as a car for which no insurance was “applicable at the time of the accident with respect to any person.... ” Id. at 671. But the court also clearly stated that a provision attempting to exclude uninsured motorist protection to an insured because he was riding in a car owned by the insured or a family member violated section 627.727.

In Reid, the Florida Supreme Court declined to hold that Lee was in conflict with Reid on this point. Rather, the court distinguished Lee because in that case, as in this case, there was more than one separate insurance policy involved. The court quoted with approval the Second District Court’s opinion in Fonck, which revisited Lee:

The teenager was permitted to recover under the uninsured motorist provision of his father’s policy after his brother’s liability carrier denied coverage under the household exclusion. In Lee this court was dealing with two separate policies. There, the teenager’s father had purchased the uninsured motorist protection for himself and his family, and we held the son must be afforded that protection. (Emphasis added).

Reid at 1174.

We note with interest the dictum in the Fonck case, which further persuades us that our sister court would hold the exclusion argued for in this case, as contrary to public policy. In Fonck, Hartford argued that a vehicle does not become uninsured simply because coverage is not available to a particular injured party.

We do not fully concur with that rationale. Lee did not accept that principle when recovery was allowed in a situation where there was an insured vehicle. Moreover, to accept the principle completely would even foreclose the claim of a party injured, for example, by one operating a stolen but yet insured vehicle. In such an instance where the owner’s coverage may not be available to the injured party, that party would have slight comfort in knowing that the negligent thief was operating an insured vehicle. See also Boulnois v. State Farm Mutual Auto Insurance Company, 286 So.2d 264, (Fla. 4th DCA 1973).

Id. at 597.

For the reasons stated in this opinion, we hold that the appellant was covered under the uninsured motorist provisions of State Farm’s policies on Curtin’s vehicles other than the one involved in this accident. We reach this conclusion as a matter of interpretation of the language of the policies, and, secondarily, because this result is mandated by the public policy of section 627.727. Further, this court held in Boynton v. Allstate Insurance Company, 443 So.2d 427 (Fla. 5th DCA 1984), that a motor vehicle is uninsured as that term pertains to a specific loss if the offending motorist has no insurance coverage available for the protection of the injured party, and that an applicable exclusion in his policy is the equivalent of no coverage.

REVERSED.

DAUKSCH, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting.

I respectfully dissent for the reasons set out in my dissent in Boynton v. Allstate Ins. Co., 443 So.2d 427 (Fla. 5th DCA 1984).

      . § 627.727, Fla.Stat. (1981).

      . Taylor v. Safeco, Ins. Co., 298 So.2d 202 (Fla. 1st DCA 1974), involved only one insurance policy, as did Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla.1977). Since the time Taylor was decided, the Reid court determined that an automobile cannot be both an insured and an uninsured motor vehicle at the same time as to the same policy.
      Similarly, only one policy was involved in Centennial Ins. Co. v. Wallace, 330 So.2d 815 (Fla. 3d DCA 1976). The estate of a decedent employee of Florida Power & Light, injured by one of its trucks while in the course of employment, sought to claim uninsured motorist coverage under his own insurance policy because Florida Power & Light’s truck was self-insured, and under the worker’s compensation law, Florida Power was immune from tort liability. However, the decedent’s policy clearly excluded from the definition of uninsured motorist any self-insurer.
      Although there were two insurance policies involved in Hayston v. Allstate Ins. Co., 290 So.2d 67 (Fla. 3d DCA 1974), the court rejected uninsured motorist coverage under a policy wherein the plaintiff was an insured, because the owner of the car causing the accident had a liability policy that in fact covered the plaintiff.


author: SHIVERS, Judge. SHIVERS, Judge.

text:
    Diane THIBODEAU, Appellant, v. SARASOTA MEMORIAL HOSPITAL and All Risk Corporation of Florida, Appellees.
    No. AT-41.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1984.
    Rehearing Denied March 30, 1984.

      Alex Lancaster, Sarasota, for appellant.
    John J. O’Riorden, of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   SHIVERS, Judge.

Claimant appeals the deputy commissioner’s order denying claimant’s application for a 20% penalty for late payment of benefits due. We reverse.

The issue presented by this appeal is when does an appellate court’s order become final for purposes of section 440.-20(8), Florida Statutes (1979). We find and hold that an appellate court’s order becomes final upon issuance of a mandate, as discussed hereafter.

Claimant was injured in a compensable accident on March 17, 1980. The deputy entered a compensation order on April 22, 1982. This order was appealed and affirmed by this court in a per curiam decision rendered November 15, 1982. A Motion for Rehearing was filed, which motion was denied by this court by order dated December 14, 1982. No Petition for Certio-rari was thereafter filed with the Florida Supreme Court. Mandate was issued with respect to the per curiam decision rendered November 15, 1982, by this court on December 30, 1982. Benefits pursuant to the deputy’s order were finally computed and paid for by check mailed by the employer/carrier on January 21, 1983. A hearing was held and by order dated May 6, 1983, the deputy found the employer/carrier’s payment to be timely, reasoning that the decision of this court became final 30 days after the date the motion for rehearing was denied, i.e., December 14, 1982, irrespective of the date of the issuance of the mandate. We disagree with the deputy’s order on two counts.

First, this court has recently held in Jones v. Cling Electric, Inc., 397 So.2d 767, 768 (Fla. 1st DCA 1981) that payment of compensation benefits affirmed on appeal become due upon finality of this court’s order and, that if those benefits are not paid within 20 days after they become due (20 days being the applicable time period in Cling within which compensation was to be paid), the claimant is entitled to a 20% penalty pursuant to Section 440.20(8), Florida Statutes. It is well settled that the judgment of an appellate court, where it issues a mandate, is a final judgment. See, e.g., O.P. Corporation v. The Village of North Palm Beach, 302 So.2d 130, 131 (Fla.1974); Robbins v. Pfeiffer, 407 So.2d 1016, 1017 (Fla. 5th DCA 1981). Further, the fact that claimant may attempt to secure discretionary review by the Florida Supreme Court should not avoid the finality of an appellate court’s judgment, in the absence of a stay ordered by the appellate court. See Robbins v. Pfeiffer, supra, at 1017. Accordingly, we find and hold that the judgment in the instant case became final on December 30, 1982, the date mandate was issued. This leads us to the second disagreement we have with the deputy’s order.

The date of accident in this case was March 17, 1980. The deputy apparently applied section 440.20(8), Florida Statutes (1980), and the respective parties’ attorneys did not inform the deputy or this court to the contrary, as the applicable law in this case, which section provides, in pertinent part, that a penalty shall be added to any compensation if such compensation is not paid within 30 days after it becomes due. However, we find that Chapter 80-236, Laws of Florida, which amended section 440.20(8) to extend the time within which compensation is to be paid from 20 to 30 days after it becomes due, was not to take effect until July 1, 1980. Accordingly, section 440.20(8), Florida Statutes (1979), not section 440.20(8), Florida Statutes (1980), would be applicable to this case, which former section provides for a penalty if compensation is not paid within 20 days after it becomes due. Since the compensation in this case became due December 30, 1982, the date mandate was issued, and since payment by the employer/carrier was made on January 21, 1983, more than 20 days after December 30, 1982, the employer/carrier’s payment was untimely and a 20% penalty should have been assessed pursuant to section 440.20(8), Florida Statutes (1979). The deputy’s decision, therefore, is reversed and remanded with instructions to the deputy to conduct proceedings consistent with this opinion.

REVERSED and REMANDED.

JOANOS and THOMPSON, JJ., concur.

ON MOTION FOR REHEARING

SHIVERS, Judge.

Appellees argue that the change in section 440.20(8), Florida Statutes, which extends the time within which compensation may be paid without penalty from twenty to thirty days, is merely procedural and that, therefore, the extended time period can be applied to all cases pending on the effective date, July 1, 1980. Appellees overlook section 29, Chapter 80-236, Laws of Florida, which states:

Sections 1 through 21 of this act shall apply to all claims for injury arising out of accidents occurring on or after July 1, 1980.

Because the statutory change from twenty to thirty days was accomplished in section 8 of Chapter 80-236, the above-quoted language of section 29, Chapter 80-236, applies and prevents retroactive application of the thirty day time period to the instant case. See Peck v. Palm Beach County Board of County Commissioners, 442 So.2d 1050 (Fla. 1st DCA 1983). Accordingly, the motion for rehearing is DENIED.

JOANOS and THOMPSON, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Gerald BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 83-826.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearings Denied April 4, 1984.
    Richard Hersch of Law Offices of Richard Hersch, South Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

GLICKSTEIN and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting.

I would reverse on the authority of Newton v. State, 378 So.2d 297 (Fla. 4th DCA 1980), cert. denied, 389 So.2d 1115 (Fla. 1980).


text:
    CONCRETE SCIENCES, INC. and Atlantic Insurance Company, Appellants, v. Scott BASSETT, Ruth Guerine, George Arthur Tollers, and New Hampshire Insurance Company, Appellees.
    No. 83-576.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Rehearings and Suggestions of Great Public Importance Denied May 15, 1984.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellants.
    Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellees Ruth Guerine and New Hampshire Ins. Co.
    Michael K. Wilensky of Conroy & Sim-berg, P.A., Hollywood, for appellee George Arthur Tollers.
   PER CURIAM.

Reversed on the authority of Fleury v. City of Riviera Beach, 396 So.2d 813 (Fla. 4th DCA 1981). Fleury contemplates that a joint tortfeasor who seeks to utilize a settlement and release from the injured party as a defense to a contribution claim be required to plead the settlement and release and that the other tortfeasor seeking contribution be given an opportunity to plead the lack of good faith as an avoidance of the settlement and release. Upon the joinder of issue on the issue of good faith, the court may then conduct a hearing on the merits of that issue, affording both sides an opportunity to present evidence.

Any concern as to the alleged lack of “good faith” and attendant delay caused by a joint tortfeasor challenging a settlement may be' subject to a separate inquiry under the provisions of section 57.105, Florida Statutes (1983), providing for the taxation of attorneys fees in certain instances.

This cause is reversed and remanded for further proceedings in accord herewith.

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


author: NESBITT, Judge.

text:
    SAC CONSTRUCTION COMPANY, INC. and Par-Cap, Inc., Appellants, v. EAGLE NATIONAL BANK OF MIAMI, Guillermo Muller, as Trustee, Jorgelina Muller, Beach Ocean Walk, Inc., and Gillett Plumbing, Appellees.
    No. 82-2597.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied May 23, 1984.
    Heller & Kaplan and Seymour Kaplan, Miami, for appellants.

      Schwartz & Nash and Dale A. Hecker-ling, Miami, Spencer, Hass-Perlman, Hoffman, Bloom & Bernstein, Coral Gables, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

SAC Construction Company, Inc. (SAC) and PAR-CAP, Inc. (PAR-CAP) appeal a summary final judgment foreclosing a mortgage on real property in favor of Eagle National Bank of Miami (Bank). We affirm.

On October 9, 1979, Muller executed and delivered a promissory note to PAR-CAP in the sum of $616,000, which was secured by a purchase money mortgage on a piece of hotel property. Some time later, Muller decided to convert the hotel to a condominium. In connection with the financing of this new project, Muller, his wife, and Beach Ocean Walk, Inc. (a corporation of which Muller was the president) (Beach) executed a note in the principal amount of $735,000 to the Bank. As security for the note, the Mullers executed a mortgage on the hotel property (which was already subject to the PAR-CAP mortgage) and on their residence. Because the Bank as part of its commitment to provide financing required that its lien be superior to others, the Mullers persuaded PAR-CAP to subordinate its lien to that of the Bank. The Mullers and Beach later increased the indebtedness to the Bank by executing a second note for $50,000. Subsequently, both of the notes held by the Bank became in default.

In the meantime, SAC had been hired by Muller to perform the construction work on the property. With an unpaid balance of $166,000 due SAC, it filed an action to enforce its mechanic’s lien against the property. Named as defendants were Muller, Beach and the Bank. The Bank filed its answer and counterclaim against SAC, PAR-CAP and other mechanic’s lienors alleging that its mortgage should be declared superior to the other claims. It also cross-claimed against Muller and Beach seeking to foreclose on the mortgage and filed a separate action to foreclose on the Mullers’ residence.

Muller and Beach responded with a counterclaim against SAC for breach of contract and slander of title. As to the Bank, Muller and Beach raised the affirmative defense that the Bank was barred from foreclosure by its failure to comply with its letter of commitment. Additionally, they asserted a claim against the Bank seeking damages in the amount of $900,000.

PAR-CAP responded to the Bank’s counterclaim with its own counterclaim against SAC and Muller to foreclose on its mortgage. A judgment on the pleadings was entered against PAR-CAP in favor of the Bank based on the subordination agreement.

In this posture, with the various lienors competing to gain superior rights and Muller denying liability, the Bank filed a motion for summary judgment. Its motion was granted determining that the Bank had a lien which was superior to the claim of any party to the action. The court ordered that the condominium property be sold to satisfy the amounts due.

SAC filed a motion for rehearing and a motion for stay of sale, arguing, inter alia, that the counterclaims and affirmative defenses pending against the Bank raised issues of fact precluding summary judgment, and that the Bank should be required to go against the Mullers’ residence prior to foreclosing on the property encumbered by SAC’s lien. In response to these motions, the Bank for the first time divulged the fact that it had entered into a settlement agreement with the Mullers, one day before the summary judgment was granted. The terms of the agreement were as follows: (a) Muller would not contest the entering of a judgment in favor of the Bank for $866,684; (b) the Bank would not seek a deficiency decree against Muller and otherwise released Muller from all liability; (c) Muller withdrew his claim against the Bank by which he had sought $900,000 in damages; (d) the separate action to foreclose on the Mullers’ residence was withdrawn.

At this point, PAR-CAP filed a motion for rehearing arguing that the stipulation, which was unknown to the other parties involved in the lawsuit, was fraudulent. The motions for rehearing were denied, but an amended final judgment was entered to correct the legal description of the property. SAC then filed a second motion for rehearing and for relief from judgment challenging the settlement and release between Muller and the Bank.

Four issues are raised by SAC and PAR-CAP: (1) There were issues of fact presented by Muller’s affirmative defenses and counterclaims. (2) The Bank should have been required to marshal Muller’s assets. (3)Muller’s release of his claim for $900,-000 was fraudulent as to the lienors. (4) The Bank’s release of Muller, his wife and Beach terminated the Bank’s right to foreclose on the mortgage.

At the outset we observe that SAC filed a notice of appeal from the adverse summary judgment prior to the lower court’s ruling on its second motion for rehearing. By doing so, it has abandoned its motion for rehearing, State v. Pearson, 156 So.2d 4 (Fla. 1963), and may not argue issues which were raised for the first time in the second motion. Thus, SAC is precluded from challenging the propriety of the summary judgment as it relates to the stipulation. Since the first two issues argued in this appeal were presented by SAC in its first motion for rehearing, they will be considered as to both creditors.

The first issue raised by SAC and PAR-CAP is that there were material issues of fact presented by Muller’s affirmative defenses. They argue that the Bank’s failure to disprove these affirmative defenses precluded the entry of a summary judgment against SAC and PAR-CAP. While we agree that the movant must disprove or establish the legal insufficiency of an affirmative defense, Puritan Insurance Co. v. Frank, 436 So.2d 1140 (Fla. 3d DCA 1983); Wilson v. Pruette, 422 So.2d 351 (Fla. 2d DCA 1982); Allstate Insurance Co. v. Arvida Corp., 421 So.2d 741 (Fla. 4th DCA 1982), we note that the affirmative defenses were raised by Muller only. Neither SAC nor PAR-CAP filed any affirmative defenses and accordingly they must be deemed waived. Fla.R.Civ.P. 1.140.

The second issue arguable by both appellants is that the Bank should have been required to marshal the Mullers’ assets. The equitable doctrine of marshaling rests on the principle that where a creditor has two funds from which he can satisfy his debt, he may be compelled to go against the one to which he has an exclusive right, leaving the other to the creditor who can resort to it alone. State Bank of Florida v. Roche, 35 Fla. 357, 17 So. 652 (1895). Generally, the doctrine will only be applied where the parties are creditors of the same debtor, there are two funds belonging to the common debtor and only one creditor has the right to resort to both funds.

As applied to this case, the appellants argue that since the Bank had both the house and the condominium property from which to satisfy the debt, and the other creditors had only the condominium property, the Bank should have been required to resort to the house first before eliminating the sole property in which the other lienors had a security interest. Having failed to do so, the argument continues, the trial court was required to reduce the amount of the Bank’s recovery by the value of the residence.

We find the doctrine of marshaling to be inapplicable on the facts before us because the parties are not creditors of the same debtor. The mortgage being foreclosed by the Bank was security for a note executed by Muller, his wife and Beach. The mortgage being foreclosed by PAR-CAP was executed only by Mr. Muller and SAC’s claim of lien was against Muller and Beach.

As to the propriety of the stipulation, PAR-CAP raises two issues, both of which are readily disposed of. First, it claims that Muller’s release of his claim against the Bank for $900,000 was fraudulent as to the creditors and that the Mul-lers’ indebtedness to the Bank should be reduced by that sum. We fail to see how this action could be deemed fraudulent. The fact that the debtor released his claim against the creditor in exchange for the debtor’s discharge from liability may secure an advantage for this creditor over others, but it does not render the transaction fraudulent. See Smith v. Hunter, 115 Fla. 698, 155 So. 805 (1934).

As a second point, PAR-CAP argues that the release of personal liability operated to divest the Bank of the right to seek foreclosure on the properties. It is axiomatic that a contract is to be construed in accordance with the intention of the parties as ascertained from the language of the contract. Rylander v. Sears Roebuck & Co., 302 So.2d 478 (Fla. 3d DCA 1974). Since it is apparent from the face of the stipulation that the parties intended that foreclosure would occur, it is immaterial that the mortgagee has released its right to a deficiency judgment. See MacArthur v. Merwitzer, 180 So.2d 164 (Fla. 3d DCA 1965).

Based on the foregoing, we affirm.

      . Beach Ocean Walk, Inc. had become the fee simple owner of the property by virtue of a quit-claim deed from Muller.