author: ADKINS, Justice. ALDERMAN, Justice, EHRLICH, Justice,

text:
    WHITE CONSTRUCTION CO., INC.; and Limerock Industries, Inc., Petitioners, v. Nathaniel DUPONT and Janey B. Dupont, his wife, Respondents.
    No. 63,777.
    Supreme Court of Florida.
    July 26, 1984.
    Rehearing Denied Oct. 11, 1984.

      John S. Rawls, Tallahassee, and Dominic M. Caparello, H. Michael Madsen and Anne Longman of Messer, Rhodes & Vickers, Tallahassee, for petitioners.
    W. Dexter Douglass and Michael F. Cop-pins of Douglass, Davey, Cooper & Cop-pins, Tallahassee, for respondents.
   ADKINS, Justice.

We have before us a decision of the First District Court of Appeal, White Construction Co. v. Dupont, 430 So.2d 915 (Fla.1st DCA 1983), which allegedly conflicts with prior decisions of this Court and of the district courts of appeal on the same point of law. We find conflict with City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955), thus we have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

This ease involves an accident at a mining site. On September 13, 1977, the respondent, Nathaniel Dupont, an independent truck owner and operator, arrived at the Cabbage Grove mine owned by petitioner, Limerock Industries, Inc., to pick up a load of limerock. While he was waiting for his turn to load, Dupont left his four axle tractor-trailer with the motor running, walked between the cab and the trailer, and began to do some minor repair work to the truck. A Limerock employee, driving a CAT 988 loader, weighing some forty tons and standing approximately 22 feet high, began to back the loader around a large pile of limerock toward Dupont’s trailer. As the loader, proceeding at top speed, approached Dupont’s trailer, the driver looked back, and, realizing he was going to hit the trailer, shouted a warning to Du-pont. The loader struck the back end of the trailer and the impact apparently caused its gear to pop into forward position, forcing the trailer to advance about one and a half times its length, and in the process to roll over Dupont, who suffered permanent disability as a result of his injuries.

Dupont sued Limerock Industries, Inc., the corporation that owned the mine, and White Construction Co., the company that owned the loader, which was, at that time, leased to Limerock, seeking compensatory and punitive damages for his personal injuries. Dupont’s wife, Janey Dupont, joined in the action, seeking damages for loss of consortium. The jury returned a verdict for the Duponts, awarding the following amounts of damages: $1,025,000 in compensatory damages to Nathaniel Dupont, $1,025,000 to Janey Dupont for loss of consortium, $2,000,000 in punitive damages against Limerock, and $1,500,000 in punitive damages against White. The trial court granted petitioner, Limerock’s, motion for new trial on the issue of punitive damages, subject to an alternate order of remittitur reducing the award from $2,000,-000 to $1,000,000. Petitioners initially accepted the order of remittitur, but then sought to challenge it by cross-appeal. The district court dismissed the cross-appeal, thereby affirming the order of remittitur, in a prior decision not involved in this appeal. White Construction Co. v. Dupont, 423 So.2d 549 (Fla. 1st DCA 1982).

Petitioners raised the following points on appeal to the First District Court of Appeal in the case which we have for review: that the trial court erred 1) in entering judgment for punitive damages; 2) in not dismissing the complaint for improper venue; 3) in admitting evidence of subsequent repairs to the loader; 4) in denying a motion for new trial on the ground that inflammatory remarks by respondents’ counsel during closing arguments improperly influenced the jury and resulted in an excessive and judicially shocking award; and 5) in not reducing the award of $1,025,000 to Janey Dupont for loss of consortium as excessive. The district court affirmed all aspects of the judgment without discussion except for the $1,025,000 award for loss of consortium to Janey Dupont, which they reversed and remanded for a new trial. White Construction Co., 430 So.2d 915.

The evidence in this case showed that the loader’s brakes had not been working for some time, and that the petitioners were aware of this fact. Although this evidence would be sufficient to show that the petitioners were negligent, it is not sufficient, as a matter of law, to submit the issue of punitive damages to the jury. This Court has previously stated the degree of negligence necessary to support an award of punitive damages in a civil case in Carraway v. Revell, 116 So.2d 16 (Fla.1959).

Carraway was an action for compensatory damages arising under Florida’s automobile guest statute. The imposition of punitive damages was not at issue. Consequently, the language there concerning punitive damages could appropriately be termed dicta. However, it has been followed by the district courts. See, e.g., Martin (Government Employees Insurance Co.) v. Young, 443 So.2d 293 (Fla. 3d DCA 1983); Ellis v. Golconda Corp., 352 So.2d 1221 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 714 (Fla.1978); Carter v. Lake Wales Hospital Association, 213 So.2d 898 (Fla. 2d DCA 1968).

In Carraway we made it clear that something more than gross negligence is needed to justify the imposition of punitive damages:

[Gjross negligence ... is that kind or degree of negligence which lies in the area between ordinary negligence and wilful and wanton misconduct sufficient to support a judgment for exemplary or punitive damages....

116 So.2d at 22. This Court agreed with the district court “ ‘that the character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages.’ ” Id. at 20. We then stated:

There is a real affinity between the character (or kind or degree) of negligence necessary to recover punitive damages or to sustain or warrant a conviction of manslaughter. Both have, as a basic purpose, the punishment of the offender. The offender in a manslaughter action may be deprived of his liberty or property by the State while the offender in an action for that kind of negligence justifying the imposition of punitive damages is deprived of his property—not as compensation to the injured party but as punishment—ergo, both are punishment and partake of public wrongs, to a greater or less degree.

Id. (footnotes omitted).

In a footnote, we set forth the standard to be met to justify the imposition of punitive damages upon a defendant:

The character of negligence necessary to sustain an award of punitive damages must be of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them”.

Id. at 20 n. 12 (citations omitted).

Therefore, we approve and reaffirm the language set forth in Carraway and adopt it as the proper standard to be applied when imposing punitive damages upon a defendant. Thus, applying the Carraway standard to the facts of the instant case, as we stated above, under no view of the evidence presented here would it be proper to impose punitive damages upon petitioners, White and Limerock. This holding renders it unnecessary to discuss petitioners’ claim that the trial court erred in allowing respondents’ safety expert to testify that petitioners were “knowingly exposing people to injury or death”, since the trial court ruled that this testimony was allowed because punitive damages were at issue in the case. Accordingly, we quash the decision of the First District Court of Appeal upholding the award of punitive damages in this case.

We also agree with the petitioner that the trial court erred in admitting evidence of subsequent repairs to the loader. This case was tried by stipulation under the common law rules of evidence rather than the Florida Evidence Code; however, the result is the same under either. Until the adoption of the Florida Evidence Code in 1976, Florida followed the widely recognized rule that evidence of repairs made after an accident are not admissible to prove negligence or culpability on the part of the defendant. Seaboard Air Line Railway v. Parks, 89 Fla. 405, 104 So. 587 (1925). Section 90.407, Florida Statutes (1981) codifies this long-standing common law rule:

Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event.

The rule is a sound one; otherwise, if such evidence could be admitted against a defendant he would be penalized for an attempt to prevent injury to others. Seaboard, 89 Fla. at 411, 104 So. at 589 (citation omitted).

In the present case the trial judge permitted testimony, over objection, from the operator of the loader that the day after the accident the loader was taken away to be repaired and that, when it was brought back the next day, its brakes were working “a lot better than [they] had at the beginning.” The trial judge admitted this evidence because defense counsel would not stipulate that the loader’s brakes were malfunctioning on the day of the accident. Respondents argue that this evidence was properly admitted as an exception to the rule for the purpose of impeachment or rebuttal. The fallacy in this argument lies in the fact that no evidence was offered by petitioners concerning the operation of the brakes on the day of the accident that respondents could properly impeach or rebut. Therefore, were we to find that this evidence was properly admitted, we would be “undermining the rule which was so long ago established.” City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955). Nonetheless, even though we find the subsequent repair evidence was improperly admitted, it was harmless error and does not warrant a new trial. Section 59.041, Florida Statutes (1981), prohibits ordering a new trial unless the improperly admitted evidence “has resulted in a miscarriage of justice.” There was enough independent evidence of defendants’ negligence admitted that made this testimony merely cumulative.

One additional point raised by petitioners merits discussion. Petitioners argue that some of the comments made by respondent’s counsel during closing argument were improper and prejudicial. These comments concerned the differences in race and economic standing between the two parties, among other things. Some latitude is permitted when arguing the amount of “smart money” to punish defendants. See, e.g., Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Tate v. Gray, 292 So.2d 618 (Fla. 2d DCA 1974); Dixie-Bell Oil Co. v. Gold, 275 So.2d 19 (Fla. 3d DCA 1973). However, since in today’s decision we hold that the issue of punitive damages was improperly submitted to the jury, it was error for the trial judge to allow these comments. In any event, we hold that these comments do not amount to fundamental error, and therefore, they cannot form the basis for a new trial on appeal, since there was no timely and proper objection made by defense counsel. Tyus v. Apalachicola Northern Railroad, 130 So.2d 580, 587 (Fla.1961); Bishop v. Watson, 367 So.2d 1073 (Fla. 3d DCA 1979).

Accordingly, we quash that portion of the district court’s decision upholding the award of punitive damages and we affirm the remainder of the decision. This cause is remanded to the First District Court of Appeal with instructions to further remand same to the trial court for a new trial on the issue only of Mrs. Dupont’s damages for loss of consortium.

It is so ordered.

BOYD, C.J., and OVERTON and MCDONALD, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion.

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

ALDERMAN, Justice,

concurring in part, dissenting in part.

I dissent from that portion of the majority opinion which decides that we have jurisdiction of this case. Justice Ehrlich, in his dissenting opinion, accurately explains the lack of jurisdiction. A majority of this Court, however, has concluded that we have jurisdiction to address the merits of petitioners’ claims. As to the resolution of the merits of this case, I concur with the majority opinion.

EHRLICH, Justice,

dissenting.

I dissent.

The majority of the Court finds conflict between the decision of the First District Court of Appeal, White Construction Company v. DuPont, 430 So.2d 915 (Fla. 1st DCA 1983), and City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955), which held that evidence of post-accident repairs was inadmissible. Conflict does not exist, in my opinion.

Five issues were raised in the district court. The court addressed only one of these issues, the award to the wife. The other four issues were dealt with summarily in a footnote as having no merit. The question of the inadmissibility of evidence of post-accident repairs to the loader was among the footnoted issues.

I do not believe this Court has jurisdiction. On the question of conflict jurisdiction, Nielsen v. City of Sarasota, 117 So.2d 731, 734 (Fla.1960) (emphasis in original), tells us

While conceivably there may be other circumstances, the principal situations justifying the invocation of our jurisdiction to review decisions of Courts of Appeal because of alleged conflicts are, (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court. Under the first situation the facts are immaterial. It is the announcement of a conflicting rule of law that conveys jurisdiction to us to review the decision of the Court of Appeal. Under the second situation the controlling facts become vital and our jurisdiction may be asserted only where the Court of Appeal has applied a recognized rule of law to reach a conflicting conclusion in a case involving substantially the same controlling facts as were involved in allegedly conflicting pri- or decisions of this Court. Florida Power & Light Co. v. Bell, Fla.1959, 113 So.2d 697.

In clarifying the “expressly” requirement in this Court’s constitutional jurisdiction to resolve conflicting appellate decisions, we said

The first issue — the meaning of the expressly requirement — arises from the fact that the district court below did not identify a direct conflict of its decision with any other Florida appellate decisions. The court’s opinion discusses, however, the basis upon which it reversed the trial court’s entry of a directed verdict for Ford. This discussion, of the legal principles which the court applied supplies a sufficient basis for a petition for conflict review. It is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in its opinion in order to create an “express” conflict under section 3(b)(3).

Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla.1981). (Emphasis supplied.)

The conflict between the decisions of two district courts must appear within the four corners of each opinion. No longer are we permitted to go back into the record proper in order to make this determination.

The district court opinion in this case is devoid of any discussion as to why it allowed the evidence of post-accident repairs to stand. The opinion is likewise devoid of any reference to the circumstances under which the evidence of post-accident repairs was introduced. It is therefore impossible, in looking to the opinion alone, to find an announcement of a rule of law in conflict with Wolfe, or to determine whether a rule of law was applied to produce a different result in White involving substantially the same controlling facts as Wolfe. Conflict under Neilsen and Kikis therefore cannot be found. The majority had to go to the record to retrieve the facts given in its opinion on this issue, and it did so for the express purpose of establishing jurisdiction.

As I view it, this Court is hearkening back to the days of Foley v. Weaver Drugs, Inc. 177 So.2d 221 (Fla.1965), where the record could be reviewed to determine if there was conflict to give this Court jurisdiction. A footnote statement by the district court that a point on appeal was raised but found to be without merit cannot and ought not be a basis for going into the record proper to determine conflict jurisdiction. What the Court is doing today to find conflict jurisdiction will surely come back to haunt us in the future.

I would therefore discharge jurisdiction in this case as having been improvidently granted.

As to the question of the sufficiency of the evidence to go to the jury on the issue of punitive damages, I quite agree with the Court’s approval and reaffirmation of the language set forth in Carraway v. Revell, 116 So.2d 16 (Fla.1959), but it is my opinion that the evidence was clearly sufficient to support an award for punitive damages. I shall not belabor the evidence. Suffice it to say that backing a large 80,000 pound loader, twenty-two feet in height, at top speed with no brakes in an area where people are working, as in the instant case, easily meets the Carraway test of the character of negligence which will sustain an award of punitive damages. It ought to be the policy of this state that knowingly driving a motor vehicle at top speed with no brakes in an area where people are present is just as likely to cause injury and damages as the operation of a motor vehicle by an intoxicated driver. See Ingram v. Pettit, 340 So.2d 922 (Fla.1976).

I agree with the majority that if it were error to admit evidence of post-accident repairs to the loader, such was harmless. In addition to the reasons relied on by the majority, I am more strongly persuaded that the error was harmless because of the factual situation, namely, a moving vehicle striking a parked vehicle. This Court has, since Bellere v. Madsen, 114 So.2d 619, 621 (Fla.1959), consistently held that “where a defendant runs into the rear of plaintiffs car while plaintiff is stopped for a traffic light or at an intersection, there is a presumption of negligence of the defendant on which the plaintiff would be entitled to recover in the absence of an explanation by the defendant.” Id. at 621. While this case doesn’t involve a traffic light or an intersection, the principle is the same. Plaintiff’s vehicle was stopped and the back end was struck by defendant’s vehicle. There was no evidence to explain the collision except that the brakes were not operable. There was no evidence to overcome the presumption of negligence, and defendant was negligent as a matter of law and a directed verdict on the issue of negligence would have been in order. Under such circumstances, the inadmissible evidence was harmless.

My examination of the closing argument convinces me that the one objection made by defendant’s counsel was without merit. I find nothing objectionable in the argument of plaintiff’s counsel. Fair comment was made on the evidence presented and the inferences that could be drawn therefrom.

I would, therefore, discharge the case for lack of jurisdiction or if jurisdiction be proper, approve the decision of the district court of appeal.

SHAW, J., concurs.

      . The relevant text of the district court opinion: Of the five points raised on appeal, we find merit only with point two, challenging the award of $1,025,000.00 to Janey DuPont, Nathaniel’s wife, for loss of consortium as excessive. We therefore affirm without discussion points one, three, four and five and reverse as to point two only.l
      1. We find no merit, and therefore do not address, the remaining points raised by appellants which include: that the trial court erred in entering judgment for punitive damages, in not dismissing the complaint for improper venue, in admitting evidence of subsequent repairs to the CAT 988; and in denying a motion for new trial on the ground that inflammatory remarks by defense counsel during closing argument improperly influenced the jury and resulted in an excessive and judicially shocking award.
      430 So.2d 915, 915-16.

      . Art. V, § 3(b)(3), Fla. Const.

      . See England, Hunter, & Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147 (1980):
      By providing both a new and virtually boundless level of review, the Foley doctrine exacted a high price in time and money for individual litigants and became a means of delaying lost causes. It also commanded significant time and energy from the supreme court’s justices.
      By the mid-1970’s, a minority of new justices on the court began challenging the Foley doctrine. Their protests helped shape the 1980 amendment, and the legislative debates indicate clearly that the purpose for including the term “expressly” in section 3(b)(3) was to overrule Foley and thereby eliminate supreme court review of PCA’s. A written opinion of the district court on the point of law sought to be reviewed is now an essential predicate for supreme court review.

      _ So-called “no merit opinions," which merely state that the court has reviewed the record and found no merit in the points presented and no reversible error in the record, should be [refused review].

        Id. at 178-80 (emphasis supplied, footnotes deleted).


source: Caselaw Access Project

author: HENDRY, Judge. JORGENSON, Judge, PER CURIAM. BASKIN, Judge

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Jesus Rafael GUERRA, Appellee.
    Case No. 82-2328.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    On Motion for Rehearing En Banc Sept. 4, 1984.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., and Faith Mesnekoff, Legal Intern, for appellant.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

The State of Florida appeals from an order granting appellee/defendant’s motion to suppress an out-of-court showup identification. For reasons more fully stated below, we affirm.

The victim was robbed at gunpoint at 10:30 p.m. while employed as a clerk at a Farm Store. She told police that two men, one a young white Latin male and the other an older black male, drove up in an old green station wagon, pointed a shotgun at her and demanded money. She put all of the money from the register in a bag and the two men drove away. As they did, the victim noticed that there was no license tag on the car. She could give no further description of the assailants to the police. She was obviously extremely upset and frightened.

The information was put out over the radio at about 10:40 p.m. Approximately one half hour later, while the investigating officers were still at the Farm Store, another officer called in to report that he had just stopped an old green station wagon with no license tag. This fit the BOLO description. The victim was told that a car with two occupants matching the description had been stopped. She went with the police to the place where the car and the occupants were being detained. She immediately identified the station wagon. The defendant, the only man present obviously not a police officer, was brought over so she could see him. She identified him as the assailant and he was arrested. During her deposition, the victim testified that while employed at the Farm Store, she had been robbed five times between February and August, 1982, she kept getting the details of the various robberies confused, and she stated that she was not certain that she could make an in-court identification of the defendant.

After a hearing on the motion to suppress, the trial court entered an order which contained extensive findings of fact and conclusions of law. The court concluded, inter alia, that the showup was an unnecessarily suggestive procedure, that the victim’s level of certainty was a result of the suggestive procedure, that the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification, and that the State did not prove by clear and convincing evidence that the in-court identification would have a source independent of the illegal pretrial confrontation.

The United States Supreme Court first enunciated its concern with the problem of eyewitness identification in a collection of cases, all decided the same day, known as the “Wade trilogy.” United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), found a post-indictment lineup to be a “critical stage of the prosecution” requiring the presence of counsel, and also found that an in-court identification must be based upon observations other than the suspect lineup identification. In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Court held that it was constitutional error to allow an in-court identification without first determining that it was not tainted by an illegal lineup but was of independent origin. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967,18 L.Ed.2d 1199 (1967), a showup case, the Court found that a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances. These three cases reflect the concern that the jury not hear eyewitness testimony about prior out-of-court identifications unless that evidence has aspects of reliability. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). This theme continued in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968) (convictions based on eyewitness identification at trial following a pretrial identification will be set aside only if the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) (identification procedures found to be impermissibly suggestive); and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

Drawing on the general guidelines established in all of these cases, the Court revisited the issue of the admissibility of evidence of prior out-of-court identifications in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and held that if, under the totality of the circumstances, the identification itself was reliable even though the confrontation procedure was suggestive, then evidence of the prior identification would be admissible. The identification is reliable if, when tested against a list of five factors set out by the Court, it is clear that the witness’ courtroom identification rests on an independent recollection of the initial encounter with the assailant, uninfluenced by the pretrial identification. United States v. Crews, 445 U.S. 463, 473 n. 18,100 S.Ct. 1244,1251 n. 18, 63 L.Ed.2d 537, 547 n. 18 (1980) (n. 18, drawing together the cases from Wade to Manson). This two-step process, i.e., was the identification procedure suggestive, and, if so, was the identification still reliable (was it based upon an independent source of recollection) in spite of the suggestiveness, is now the well established procedure for determining admissibility of evidence of prior out-of-court identifications. Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154 (“reliability is the linchpin in determining the admissibility of identification testimony.... The factors to be considered are set out in Biggers.... Against these factors is to be weighed the corrupting effect of the suggestive identification itself”). See also Grant v. State, 390 So.2d 341 (Fla.1980); State v. Walker, 429 So.2d 1301 (Fla. 4th DCA 1983) (identification suppressed; confrontation impermissibly suggestive); State v. Mendez, 423 So.2d 621, 622 (Fla. 4th DCA 1982) (State must prove by clear and convincing evidence that the in-court identification was made independent of the improper photographic lineup); Lauramore v. State, 422 So.2d 896 (Fla. 1st DCA 1982), pet. for rev. denied, 426 So.2d 27 (Fla.1983); State v. Cromartie, 419 So.2d 757 (Fla. 1st DCA), pet. for rev. dismissed, 422 So.2d 842 (Fla.1982); Adams v. State, 417 So.2d 826 (Fla. 1st DCA 1982).

Here, the trial court carefully analysed the facts and events in this case against the several factors set out in Neil v. Biggers, supra, and reaffirmed in Manson v. Brathwaite, supra. There is ample evidence in the record to support the findings. Consequently, the trial court’s resolution of the evidence will not be disturbed on appeal. State v. Garcia, 431 So.2d 651 (Fla. 3d DCA 1983); Sarno v. State, 424 So.2d 829 (Fla. 3d DCA), pet. for rev. denied, 434 So.2d 888 (Fla.1983).

Affirmed.

JORGENSON, Judge,

dissenting.

I respectfully dissent. Within one-half hour after the armed robbery had occurred, the victim made a positive identification of the vehicle, the firearm, and the driver-defendant. The field confrontation met the standard of reliability set by Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The witness’s confusion, during a deposition, regarding subsequent armed robberies at the same location is simply not relevant to the issue of the reliability of her identification at the scene. Similarly, we do not know whether the victim in this case could make an in-court identification of Guerra. There is no suggestion in this record of an impermissibly suggestive photo lineup or other action on the part of the state which would imply anything other than proper police conduct.

Nor do I agree that the trial court was in a better position to evaluate the demeanor and testimony of the witnesses. The critical testimony on the motion to suppress considered by the trial court was based upon Ms. Luerio’s deposition testimony. The investigating officer’s testimony regarding Ms. Luerio’s positive identification of the vehicle, the firearm (a 26-inch shotgun), and the defendant was uncontrovert-ed.

An identification made shortly after a crime is inherently more reliable than a later identification in court. State v. Freber, 366 So.2d 426 (Fla.1978). See also Grant v. State, 390 So.2d 341 (Fla.1980) (confrontation evidence will be admissible if, despite its suggestive aspects, the out-of-court identification possesses certain features of reliability), cert. denied mem., 451 U.S. 913,101 S.Ct. 1987, 68 L.Ed.2d 303 (1981).

In my view the trial court erred in suppressing the identification of the defendant, the car, and the unusual firearm involved in this case.

I would reverse.

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

ON MOTION FOR REHEARING EN BANC GRANTED

PER CURIAM.

On motion for rehearing en banc granted, the court has granted rehearing en banc without oral argument or additional briefs and, upon consideration of the merits, adopts the dissenting panel opinion of Judge Jorgenson as the opinion and decision of this court.

Accordingly, the panel decision is vacated and the judgment below is reversed.

Reversed.

BASKIN, Judge

(dissenting).

I disagree with the majority for two reasons. First, no lack of uniformity has been demonstrated to justify en banc rehearing. Florida Rule of Appellate Procedure 9.331 states that en banc rehearings “shall not be ordered unless necessary to maintain uniformity in the court’s decisions.” The trial court reviewed all the circumstances before deciding that the identification should be suppressed. The fact that upon review of different circumstances, a trial court reached a different conclusions in Glas v. State, 329 So.2d 341 (Fla.3d DCA 1976), cited by the state, does not create lack of uniformity under the rule.

Next, I disagree with the majority on the merits for the reasons expressed by Judge Hendry in the original panel opinion. The United States Supreme Court has enunciated guidelines for evaluating the reliability of identification procedures. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The trial court carefully followed those guidelines and noted the evidentiary support for its conclusion that the identification was tainted by unduly suggestive identification procedures. The trial court stated in its order:

1. The robbery happened in just a few seconds.
2. The victim was crying, visibly shaking, nervous and also angry.
3. The victim had been robbed five times at that same Farm Store between the period of February 1982 and August 1982.
4. The victim believed this incident to be the third robbery though she is not sure.
5. Ten to fifteen minutes elapsed from the time of the officers’ arrival until the time the bolo was issued because the officers had to calm the victim before they could obtain the information necessary for the bolo.
6. The only description the victim could provide was that the offender was a young white Latin male driving an older green station wagon with no tag and that the passenger was a black male, possibly Latin or American.
7. The victim was unable to describe the clothing and could not point to any distinguishing physical characteristics.
8. The victim cannot remember anything about the offender’s face and does not think she would be able to recognize the offender is she saw him again.
9. Approximately one half hour to one hour later, the Defendant’s vehicle was stopped about three miles from the scene of the crime.
10. The police informed the victim that a car with two occupants had been stopped which matched her earlier description.
11. The victim was then driven to the location where the car was stopped and immediately identified the vehicle as the one involved.
12. The victim then sees two males surrounded by a number of uniformed police officers standing in the glare of the patrol car lights.
13. After seeing and identifying the car, the victim identified the only white Latin male standing next to the car from a distance of two car lengths away.
14. The victim was still nervous when she made the identification.
15. A police officer showed the victim the weapon that was found in the car and told her that that was the weapon that was used.
16. The victim was unable to identify the weapon.
17. The police also told the victim that money had been found in the car just as she had described it.
18. Approximately six months has passed from the original confrontation to the trial date.

Applying the facts to the applicable case law of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and State v. Sepulvado, 362 So.2d 324 (2nd DCA 1978) and applying the factors enunciated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court makes the following conclusions of law:

1. The Court finds that the police did employ a clearly unnecessarily suggestive procedure in obtaining the out-of-court identification.
2. The Court finds the testimony of the officer to be credible on its face.
3. The Court concludes that the victim was angry and knew that the police had the suspects, and upon seeing the car, the victim would probably have identified any two people standing next to the vehicle.
4. The Court also concludes that the victim’s level of certainty at the show-up was a result of the impermissibly suggestive procedure and not the result of an independent recollection.
5. Further, the Court finds that considering the totality of the circumstances, the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.
6. The Court finds that the State did not prove by clear and convincing evidence that the in-court identification has a source independent of the illegal pretrial confrontation.
7. The deposition of the victim and the transcripts of October 13, 1982 and October 26, 1982 are incorporated by reference.

I discern no basis for disregarding the trial court’s findings and conclusions.

I would affirm.

HENDRY and HUBBART, JJ., concur.

      . The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.


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

text:
    Jose CLAUSELL, Petitioner, v. The STATE of Florida, Respondent.
    No. 83-2522.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    On Motion for Rehearing En Banc Sept. 18, 1984.

      Pelzner, Schwedock, Finkelstein & Klausner and Robert D. Klausner and Lori E. Barrist, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for respondent.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

By this petition for writ of certiorari, Jose Clausell asks us to quash an order of the trial court which refused to disqualify the office of the State Attorney from further participation in the prosecution of Clausell for perjury. Clausell contends that because two Assistant State Attorneys will be witnesses for the prosecution, all other members of the State Attorney’s office are disqualified from prosecuting him, and such task must necessarily be assigned to a special prosecutor who has no affiliation with the State Attorney’s office for the Eleventh Judicial Circuit.

Clausell is being prosecuted for perjury in violation of Section 837.02, Florida Statutes (1981). The information alleges that Clausell made material false statements under oath during an official proceeding to one Jonathan Blecher, an Assistant State Attorney. The names of Blecher and Anne Marie Farrar, another Assistant State Attorney before whom Clausell apparently retracted the earlier statements given to Blecher, appear on the State’s list of prospective witnesses. The Assistant State Attorney now assigned to prosecute the case is, of course, neither Blecher nor Far-rar.

It is clear, and Clausell does not contend otherwise, that there is nothing condemnable about a member of the prosecutor’s office who is not prosecuting the case testifying as a prosecution witness. Without exception, courts have, explicitly and implicitly, rejected the contention that because of the prestige which attaches to the prosecutor’s office, to permit a prosecutor to testify would unfairly prejudice the defendant. United States v. Cerone, 452 F.2d 274 (7th Cir.1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240 (1972) (explicitly rejecting contention that United States Attorney, who was not prosecuting the case, should not have been allowed to testify because it was prejudicial to the defendants due to the prestige of witness’s office); United States v. Callanan, 450 F.2d 145 (4th Cir.1971) (same); People v. Mann, 27 I11.2d 135, 188 N.E.2d 665, cert. denied, 374 U.S. 855, 83 S.Ct. 1923, 10 L.Ed.2d 1075 (1963) (same, implicit); Lukas v. State, 194 Wis. 387, 216 N.W. 483 (1927) (same, implicit). Clausell suggests, however, that this otherwise admissible testimony cannot be elicited by any other Assistant State Attorney from the same office as the witnesses. Since, as we have said, there is no cognizable prejudice to the defendant from the fact of these Assistant State Attorneys testifying, in order to prevail on his motion to disqualify all other members of the State Attorney’s office, the defendant must point to some prejudice to him which results from the office’s participation in his prosecution. See United States v. Hubbard, 493 F.Supp. 206 (D.D.C.1979), affirmed sub nom. United States v. Heldt, 668 F.2d 1238 (D.C.Cir. 1981), cert. denied sub nom. Hubbard v. United States, 456 U.S. 926,102 S.Ct. 1971, 72 L.Ed.2d 440 (1982). The defendant has pointed to none.

We reject Clausell’s argument that it is unnecessary for him to show prejudice and that he is entitled to have the State Attorney’s office disqualified because its further participation in his prosecution would constitute a breach of the Florida Bar Code of Professional Responsibility. His thesis is that the office of the State Attorney is a law firm, and every assistant within the office is a lawyer in the firm, so as to require the automatic disqualification of the firm when, as here, any of its members are to be witnesses in a case being prosecuted by the firm.

First, without any showing that a prosecutor’s violation of the Code of Professional Responsibility will or has prejudiced him, a defendant has no right to enforce the Code and is not intended to be an incidental beneficiary of any violation of its provisions. See State v. Murray, 443 So.2d 955 (Fla.1984) (prosecutorial misconduct in violation of the Code of Professional Responsibility is the proper subject of bar disciplinary action and will not warrant reversal of a conviction unless the misconduct can be said to have prejudiced the defendant’s right to a fair trial); State v. Del Gaudio, 445 So.2d 605 (Fla. 3d DCA 1984) (sanction of dismissal of charges for prosecutor’s misconduct in failing to make discovery inappropriate in absence of irreparable prejudice to defendant). Cf. Molina v. State, 447 So.2d 253 (Fla. 3d DCA 1983) (where prosecutorial misconduct prejudiced defendant, conviction reversed and matters of misconduct referred to the bar for grievance proceedings).

We do not overlook this court’s recent decision in Rodriguez v. State, 433 So.2d 1273 (Fla. 3d DCA 1983). There the court, reversing the defendant’s conviction, held that “the State’s presentation of the testimony of a member of its office to give an expert opinion as to whether the alibi witness could be prosecuted constituted error.” 433 So.2d at 1275. Since, as we have said, it is clear that in the absence of prejudice to the defendant, a prosecutor’s violation of the Code of Professional Responsibility is not a ground for reversal, see State v. Murray, 443 So.2d 955, Rodriguez can only be read to mean that the testimony presented was inadmissible and prejudicial to the defendant without regard to whether it was presented by a member of the State Attorney’s office or a person appointed in the stead of the State Attorney. Therefore, the ensuing discussion in Rodriguez concerning the impropriety of the prosecuting attorney calling a member of his own office as a witness is dicta which we are free to disregard.

Second, we perceive no violation of the Code of Professional Responsibility when an Assistant State Attorney appears as a witness for the State in a case being prosecuted by another member of the State Attorney’s office.

Concededly, the Code of Professional Responsibility mandates that “[a] lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that ... a lawyer in his firm ought to be called as a witness.” Fla.Bar Code Prof.Resp. D.R. 5-101(B). The Code provides that, under like circumstances, the lawyer’s law firm shall not continue with the representation. Fla.Bar Code Prof. Resp.D.R. 5-102(A).

In our view, the State Attorney’s office is not a law firm, and an Assistant State Attorney is not a lawyer in the firm for the purposes of D.R. 5-101(B) and D.R. 5-102(A). These sections, as do other sections in the Code of Professional Responsibility, clearly indicate that these expressions were intended to refer to law firms undertaking employment for remuneration and to the attorneys in such firms. For example, D.R. 2-110(A)(3) requires that a withdrawing attorney refund unearned fees; D.R. 2-102 is a regulatory provision concerning the use of the term “firm” in professional settings; D.R. 3-102 regulates the sharing of legal fees and payment of the same to non-lawyers; and D.R. 9-102(A)(2) regulates the use of clients’ funds. The definitional section merely states that a law firm “includes a professional legal corporation.” We believe that had it been intended that “law firm” should include a multi-assistant State Attorney’s office, that inclusion would have been clearly expressed. People ex rel. Younger v. Superior Court, 86 Cal.App.3d 180, 150 Cal.Rptr. 156 (4th Dist.1978).

That the word “firm” as used in D.R. 5-101(B) and D.R. 5-102(A) was intended to refer to a law firm engaged in practice for remuneration is further apparent from Formal Opinion 339 of the American Bar Association’s Committee on Ethics and Professional Responsibility (January 31, 1975). In respect to the requirement that a “firm” and all lawyers in the firm withdraw when a lawyer in the firm intends to testify on behalf of the client, Formal Opinion 339 concludes:

“Because a trial advocate clearly possesses such [a financial] interest, his testimony, or that of a lawyer in his firm, is properly subject to inquiry based on such interest, perhaps including elements of his fee arrangement in some instances. Thus, the weight and credibility of testimony needed by the client may be discounted and in some cases the effect will be detrimental to the client’s cause.”

See also E.C. 5-9.

Thus, faced with the identical question which is now before us, the court in People ex rel. Younger v. Superior Court, 86 Cal.App.3d 180, 150 Cal.Rptr. 156, after a thorough review of California’s Code of Professional Responsibility, which in all material respects is the same as Florida’s Code, concluded:

“The reasons advanced in support of rule 2-lll(A)(4) [Fla.D.R. 5-101(B) and D.R. 5-102(A)] and the authoritative discussions of the rule and its reasons previously cited ... reveal that the balance thus drawn is based on certain fundamental assumptions: that there are available a number of competent, qualified attorneys who are unrelated to the attorney-witness and who are willing to undertake the client’s case ...; that, consequently, the interest of the client in representation by the attorney of choice implicates primarily avoidance of inconvenience and duplicative expense ...; that the attorney’s interest in continuing to represent the client is mostly or wholly financial in nature ...; that a trial advocate has or appears to have an interest in the outcome of the case, either financial as a result of his fee arrangement or expectation of representing the client in the future, or a partisan interest resulting from his zeal as an advocate ..., and that an attorney-witness whose law firm represents the client at trial will or will be presumed to continue to have an interest in the outcome of the case, either financial as a result of the fee arrangements and arrangement for his compensation by the firm, or secondarily perhaps, some residual partisanship resulting from his relationship with the law firm notwithstanding he is not acting as the advocate personally .... However valid these assumptions may be in the case of an attorney or law firm engaged in practice for remuneration and the normal attorney-client relationship, they have virtually no validity in the case of the multi-deputy prose-cutorial office of a district attorney. The prosecutorial office of an elected district attorney and the relationship between the district attorney and his sole client, the People, are fundamentally and decisively different from a law firm and the ordinary attorney-client relationship.”
86 Cal.App.3d at 203-04, 150 Cal.Rptr. 156 (citations omitted) (emphasis supplied).

Similarly, in United States v. Hubbard, 493 F.Supp. at 208, the court stated:

“If any member of a law firm has an interest in the outcome of a case, the entire firm is disqualified. See ABA Opinion 296 (1959). However, this rule does not extend to encompass an Office of a United States Attorney. A United States Attorney’s Office is unique in that it does not represent ordinary parties but the sovereign whose obligation is to govern impartially. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629 [633], 79 L.Ed. 1314 (1934). Furthermore, the members of an Office of a United States Attorney have no interest in the success of the litigation of their associates as do members of a private firm. Therefore, the fact that one member of the Office may have a disqualifying interest in the case does not preclude the entire Office from handling the case.”

This fundamental and decisive difference between the public prosecutor and the ordinary advocate is expressly recognized by the Code of Professional Responsibility, see E.C. 7-13; D.R. 7-103; by the ABA Model Rules of Professional Conduct, see Rule 3.8, Special Responsibilities of A Prosecutor; and has long been recognized by our case law, see Smith v. State, 95 So.2d 525 (Fla.1957); Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (1980); Frazier v. State, 294 So.2d 691 (Fla. 1st DCA 1974), cert. denied, 307 So.2d 185 (1975).

Nor does the decision of our sister court in Fitzpatrick v. Smith, 432 So.2d 89 (Fla. 5th DCA 1983), alter our view. In Fitzpatrick, the defendant’s motion to disqualify the State Attorney’s office was based on the fact that the defendant had consulted with an attorney, one Kimball, concerning the charges against him, and subsequently, while the charges were still pending against the defendant, Kimball became an Assistant State Attorney in the office whose responsibility it was to prosecute the defendant. The defendant claimed that the threat of disclosure of his privileged and confidential communications to Kimball was sufficient grounds to disqualify the State Attorney’s office. The Fifth District Court of Appeal, finding a real danger of prejudice to the defense, agreed. In so deciding, the court, relying upon cases holding that a public defender’s office is a law firm within the meaning of the Code of Professional Responsibility, determined that a State Attorney’s office is a firm.

It is obvious that whether the State Attorney’s office may be considered a law firm for the purpose of disqualifying its members when one of its number has previously represented the defendant in the very matter being prosecuted is irrelevant to the question of whether the State Attorney’s office may be considered a law firm under D.R. 5-101(B) and D.R. 5-102(A) for the purpose of disqualifying its members when one of its number is to testify as a witness for the State. The rationale of Fitzpatrick is the real danger of prejudice to the defendant posed by the possible divulgence of privileged information and, implicitly, the unseemliness of the defendant being prosecuted by an office on a charge he had discussed with his former attorney, now a member of that office. No such prejudice or unseemliness exists here.

We therefore conclude that the trial court did not depart from the essential requirements of the law — indeed, adhered to those requirements — when it denied the petitioner’s motion to disqualify the State Attorney’s office from further participation in the prosecution of the petitioner. The trial court’s decision was eminently correct in that the petitioner failed to show that he would be prejudiced by the State Attorney’s office’s continued participation in the prosecution. The petitioner’s reliance on Disciplinary Rules 5-101(B) and 5-102(A) of the Florida Bar Code of Professional Responsibility as grounds for disqualification is misplaced, since, absent a showing that a violation of these rules will prejudice him the petitioner has no private right to seek their enforcement, and, moreover, the State Attorney’s office is not a law firm within the meaning of the cited rules.

Accordingly, the petition for writ of cer-tiorari is

Denied.

Before SCHWARTZ, C.J., and BARK-DULL, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

Having determined that the panel decision issued in this case on March 13, 1984, is in conflict on an identical point of law with the decision of this court in Rodriguez v. State, 433 So.2d 1273 (Fla. 3d DCA 1983), this court granted the petitioner’s motion for rehearing en bane. Upon en banc consideration of the case by eight active sitting members of the court, three members (Judges Nesbitt, Daniel S. Pearson and Jorgenson) voted to approve the panel decision and reject Rodriguez; four members (Chief Judge Schwartz and Judges Barkdull, Baskin and Ferguson) voted to disapprove the panel decision and approve Rodriguez: and one member (Judge Hubbart), although disagreeing with the rule announced in Rodriguez, voted to disapprove the panel decision in Clau-sell solely because of his view that Rodriguez must be adhered to on the ground of stare decisis. Accordingly, the petition for writ of certiorari is granted, and the order of the trial court refusing to disqualify the office of the State Attorney from further participation in the prosecution of Clausell for perjury is quashed.

The divergent views of the members of the court on the merits of the issue suggest to us that we certify the following questions to the Florida Supreme Court for resolution. Cf In re Rule 9.331, Determination of Causes By A District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So.2d 1127, 1129 (Fla.1982).

1. Is it a breach of the Code of Professional Responsibility of The Florida Bar for a State Attorney or any Assistance State Attorney in the office to continue to act as the prosecutor in a criminal case when it is his or her intention to call another Assistant State Attorney in the same office to testify at the trial of the case as to a material matter?
2. If it is a breach of the Code of Professional Responsibility of The Florida Bar for a State Attorney or any Assistant State Attorney in the office to continue to act as the prosecutor in a criminal case when it is his or her intention to call another Assistant State Attorney in the same office to testify at the trial of the case as to a material matter, is disqualification of the State Attorney and any Assistant State Attorney in the same office from prosecuting the case required whether or not prejudice to the defendant can be demonstrated?

Certiorari granted; questions certified.

FERGUSON, Judge

(specially concurring to certify the question).

This is a single issue case so certification of two questions is unnecessary. The certified question should be simply whether disqualification of the office of the state attorney for the district is required where the state attorney or one of the assistants is obligated to call another assistant in the same office to testify at trial as to a material matter. To suggest, as does the second question, that a criminal defendant should be required to demonstrate actual prejudice, is to load the question. Neither does the case hinge solely on an interpretation of the Code of Professional Responsibility.

That an assistant state attorney is the key witness in the effort of the state attorney to obtain a conviction is potentially prejudicial to the accused. But the same could be said as to any other key prosecution witness. So, is there some other kind of prejudice which an accused must establish where the key witness happens to share an office with the prosecutor? If so, what is it and how is it proved?

The question which has to be decided ultimately, as a matter of policy, is whether the office of the state attorney is so disinterested in the outcome of a criminal prosecution that unfair advantage will not be presumed where a member of the same office appears as the state’s main witness.

BASKIN, J., concurs.

HUBBART, Judge

(concurring).

I concur in the court’s decision to rehear en banc this case under Fla.R.App.P. 9.331 and to the court’s disposition of the case on the merits. I also agree that the case should be certified for final resolution to the Florida Supreme Court because of the great public importance of the questions presented. Art. V, § 3(b)(4), Fla. Const. I write separately, however, because the case raises an important issue as to this court’s administration of the en banc rule. Fla.R.App.P. 9.331.

First, it seems indisputable that we have jurisdiction to rehear this case en banc under Fla.R.App.P. 9.331. Although I was a member of the panel in the instant case and believe that Judge Pearson has written an able opinion on the issue presented — indeed, I think his analysis of what the law should be in this area is very persuasive— still, I think the effort to distinguish our contrary precedent in Rodriguez v. State, 433 So.2d 1273 (Fla. 3d DCA 1983), is unsuccessful. Rodriguez announces a rule of law that Fla. Bar Code Prof.Resp.D.R. 5-101(B), 5-102 apply to the state attorney’s office when that office seeks to call an assistant state attorney in its own office as a witness at trial. The panel opinion announces a contrary rule of law that “the State Attorney’s office is not a law firm, and an Assistant State Attorney is not a lawyer in the firm for the purposes of D.R. 5-101(B) and D.R. 5-102(A),” (slip opinion at 1053), when the state attorney’s office seeks to call an assistant state attorney in its own office as a witness at trial. This being so, there is a clear intra-district conflict of decisions shown sufficient to invoke our jurisdiction to rehear this case en banc under Fla.R.App.P. 9.331, as the panel opinion announces a rule of law in conflict with a rule of law announced in Rodriguez, a showing which we have held sufficient to invoke our en banc jurisdiction. Schreiber v. Chase Federal Savings & Loan Ass ’n, 422 So.2d 911 (Fla. 3d DCA 1982) (en banc) (Nesbitt, J., dissenting, opinion of court on en banc issue), aff’d in part, rejected in part and remanded (Fla.1984) (case no. 63,017, opinion filed July 26, 1984); Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc).

Second, and most importantly, I think that whenever we grant a hearing or rehearing en banc under Fla.R.App.P. 9.331, we should give stare decisis deference — although not slavish adherence — to the prior decision with which the instant decision stands in conflict or is non-uniform. Otherwise every prior panel decision ever rendered in our twenty-seven-year history can with impunity be overruled by this court sitting en banc whenever we disagree with a prior panel decision — a result which I think no one wants as it would create great instability in our precedents and undermine the authority of our panel opinions generally. Moreover, such a result would defeat the entire purpose behind Fla.R.App.P. 9.331 which “is designed to help the district courts avoid conflict, assure harmonious decisions within the courts’ geographic boundaries, and develop predictability of the law within their jurisdiction.” Chase Federal Savings & Loan Ass’n v. Schreiber (Fla.1984) (case no. 63,017, opinion filed July 26, 1984) (9 FLW 313).

Only in rare and unusual cases where the prior precedent deserves to be overruled because it conflicts with controlling Florida Supreme Court or United States Supreme Court precedent, has been superseded by statute, is so at odds with the established law as to be regarded as an aberrant precedent, or otherwise qualifies as an exception to the doctrine of stare decisis, see Joseph v. State, 447 So.2d 243, 249-51 (Fla. 3d DCA 1983) (en banc) (Hubbart, J., dissenting), and authorities collected, do I think we should ever recede from a prior panel opinion. Not only is this sound stare deci-sis law, I think this treatment of our prior precedents accords with the salutory purpose behind Fla.R.App.P. 9.331 which is to promote harmony and predictability in our decisions and to avoid instability in our decision-making process.

For the reasons stated by Judge Pearson in the panel opinion in the instant case, I do not agree with Rodriguez, the prior panel opinion herein, and would not have joined that opinion had I been a member of the panel. However, I regard this personal consideration as an insufficient legal basis for refusing to follow Rodriguez; indeed, there would be little stability in our law if individual judges could properly arrogate to themselves the right to refuse to follow any precedent which was not to their liking. Setting aside such personal considerations and applying more objective criteria, the Rodriguez decision, in my view, is not an aberrant opinion, does not conflict with prior Florida precedent or statute, qualifies for no exception to the doctrine of stare decisis, and otherwise has a reasonable legal basis. I, therefore, think we should adhere to Rodriguez as a stare decisis matter so as to promote harmony and stability among our precedents.

It goes without saying, however, that the Florida Supreme Court, upon review of this case, will not be so bound by Rodriguez, as it is not one of its prior decisions. This being so, I would urge the Court upon its review to adopt Judge Pearson’s analysis of this case as contained in the panel opinion herein.

      . On the other hand, but inapposite here, where the person actually prosecuting the case appears as a witness in the case, courts have uniformly condemned the practice on the theory that in such an instance, "a jury is naturally apt to give to the testimony of the prosecuting attorney himself much more weight than it would accord to the ordinary witness.” Shargaa v. State, 102 So.2d 809, 813 (Fla.1958) (condemning practice, but affirming conviction where prosecutor’s testimony was limited to a matter not in material dispute); Robinson v. State, 32 F.2d 505 (8th Cir.1929) (condemning practice and reversing on other grounds); People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973) (condemning practice and reversing conviction where prosecutor’s testimony of sufficient consequence).

      . In United States v. Hubbard, 493 F.Supp. 206, the court rejected the defendant’s claim that the United States Attorney’s Office should be disqualified where the indictment charged the defendants with burglaries and thefts from an office of an Assistant United States Attorney in that district who was not in any way involved in the prosecution of the case. The court found that none of the government attorneys had any emotional stake in the outcome that could disturb his exercise of impartial judgment and thus deprive the defendant of a fair trial. In so doing, the court distinguished People v. Superior Court, 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164 (1977), where the district attorney’s office was held to be properly disqualified from prosecuting a homicide where the victim’s mother was a clerk in the district attorney’s office and stood to gain custody of her deceased son’s child upon the conviction of the defendant, the victim’s wife. The California court held on the circumstances presented, ”[T]he prosecutor might at least appear to have an emotional stake in the case of the sort that could disturb his exercise of impartial judgment-” 137 Cal. Rptr. at 486, 561 P.2d at 1174.

      . The Model Rules of Professional Conduct adopted by the American Bar Association on August 2, 1983, make clear that violations are the concern of the violator and the appropriate disciplinary agency and do not create a procedural weapon in other litigants.
      "Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.”

      . We reiterate that in the present case, there is no contention that the testimony of the assistants is inadmissible. The contention is that such testimony should not be elicited by a member of the same office as the witness.

      . These rules contain exceptions which are not pertinent here.

      . The conclusion that a State Attorney’s office which represents a single client is a law firm does not follow from the conclusion that a pub-lie defender’s office which represents multiple clients with the potential for conflict is a law firm. In the factual context of Fitzpatrick, however, where there existed the spectre of divided loyalties, the problem of conflict existed.


author: SMITH, Judge. SMITH, Judge. NIMMONS, Judge,

text:
    Pamela SHERBURNE, Appellant, v. SCHOOL BOARD OF SUWANNEE COUNTY, Florida, Appellee.
    No. AP-288.
    District Court of Appeal of Florida, First District.
    June 7, 1984.
    Rehearing Denied Aug. 23, 1984.

      Elizabeth L. White and William J. Sheppard of Law Offices of William J. Sheppard, P.A., Jacksonville, for appellant.
    William R. Slaughter, II of Slaughter & Slaughter, Live Oak, for appellee.
   SMITH, Judge.

Ms. Sherburne appeals from an order of the Suwannee County School Board terminating her employment on the grounds that she lacked good moral character. We reverse.

Ms. Sherburne, a 1974 college graduate, applied for and received a one-year annual contract to teach Spanish at Suwannee County High School during the school year 1975-1976. Her annual contract was renewed for the 1976-1977 school year, and again for the 1977-1978 year. At the completion of the 1977-1978 school year, the Suwannee County School Superintendent recommended that Ms. Sherburne receive a continuing contract. The School Board, however, declined to issue a continuing contract, but reissued an annual contract, notifying appellant of its action by mail, but failing to specify any reasons for its action. Upon inquiry, appellant was advised by the Superintendent that a Board member had recommended removal of her name from the list of those eligible for continuing contract because of her “relationship” with a male acquaintance, Bob Palmer. At the next meeting of the Board the Superintendent again recommended appellant for continuing contract status. The Board again declined to award a continuing contract, and instead withdrew its previous offer of an annual contract. Appellant’s request for a hearing was denied, but a hearing was subsequently held pursuant to order of a United States District Court.

The Board’s notice of hearing charged that during the course of the 1977-1978 school year appellant cohabitated at various times with an adult male to whom she was not married, and to whom she was not related by blood or marriage, and that she permitted this same male to visit her classroom in the “direct or indirect” presence of students and faculty members during times when she should have been teaching class. The notice further charged that” she had been warned about her behavior but persisted in it, and concluded that this conduct demonstrated an absence of good moral character, set a bad example for and had a harmful effect upon her students. At the conclusion of the hearing, the Board found that the cohabitation referred to existed for a period of approximately one month, that it was well-known by her students and was a subject of frequent discussion among her students, and that appellant during the years 1977 and 1978 permitted and encouraged the adult male with whom she was cohabitating to visit her classroom in the direct or indirect presence of students and other faculty members. The Board further found that knowledge of appellant’s relationship was so well-known within the community to both students and the public at large that “some parents” made complaints .to the school principal, and that her conduct set a bad example for students because of their age, impressionability, and state of development, so as to have a present and potentially harmful effect with regard to the formation of student values and attitudes upon morality, family, lifestyle and character. The Board’s order further recited that appellant was warned that her conduct was unacceptable to the School Board and that she should discontinue such conduct, but notwithstanding, she continued her cohabitation. The Board also found that while the cohabitation of appellant “in and of itself” with an adult male to whom she was not married “may not be immoral to some segments of American population,” it is “not an indicator of the high moral standards required by law of a teacher.” From the foregoing, the Board concluded that appellant lacked “good moral character,” “good judgment,” that she had failed “to conform to the moral standards established by the vast majority of teachers employed by the School Board of Suwannee County,” and that her cohabitation and public knowledge thereof together with the effect upon her students and potential students “is personal conduct which seriously reduces her effectiveness as an employee of the School Board.”

The evidence disclosed that appellant lived with Mr. Palmer in his house trailer during January of 1978 while her trailer was being repaired. As soon as her trailer was habitable she moved out of Palmer’s trailer. At the time of the April, 1978, School Board meeting at which she was first denied a continuing contract, appellant was living in her own trailer. She testified that she sometimes spent the night at Palmer’s trailer, and that he sometimes spent the night at her trailer.

Frank Stankunas, Superintendent of Schools for Suwannee County, called as a Board’s witness, was the principal of Su-wannee High School during the 1977-1978 school year, and the assistant principal during the previous years. Among his duties was the evaluation of teachers. He testified that he never had any complaints or comments from the students concerning appellant and her relationship with Palmer. There were no discipline problems among appellant’s students, and he was of the opinion that she was an excellent teacher. The only evidence that there were parental complaints came from Mr. Stankunas, who admitted that there were a couple of inquiries concerning Bob Palmer’s presence on the school grounds. He explained, however, that at his request Palmer had volunteered, free of charge, to construct a tennis court and give tennis instructions, and that Palmer also helped, again free of charge, in constructing facilities for the school’s reading laboratory. Stankunas was at no time advised that Palmer had visited appellant’s classroom, nor that there was any improper conduct on the part of Palmer or appellant during his presence at the school.

The Board produced the audio deposition of one former student, a 1977 graduate, in which she stated that she saw Bob Palmer around the campus at times, and in appellant’s classroom on one occasion. She also said that she had discussed with other students the relationship between appellant and Palmer, that they were living together, and that she had gone to appellant’s home on Friday and Saturday night dates along with other students- “to see if we could see them together.” There was no testimony of what, if anything, she or the other students ever saw. The Board also heard the testimony of an expert witness psychologist who opined that granting a continuing contract to a very efficient and popular teacher concerning whom it was commonly known that she lived with a member of the opposite sex without benefit of marriage “would impact upon the student body in fairly significant ways, or potentially so.” No parent or teacher testified, and no Board’s witness was able to testify that appellant’s relationship with Palmer became a matter of “common knowledge” before the Board’s denial of continuing contract status resulted in newspaper publicity. The Board produced no evidence that appellant had been “warned” about her alleged conduct.

Former students testified in behalf of appellant that they never saw any inappropriate conduct between appellant and Palmer. They testified that they learned of her relationship with Palmer either through the newspapers or from adults, but that the relationship was not commonly discussed among the students. Appellant produced an expert witness on moral theory who testified that while there is extensive literature on sexual behavior, there is no argument among contemporary moral theorists that non-marital sex is per se immoral, and another expert testified to the steady increase over the years in public acceptance of pre-marital sexual activity. A third expert, a psychologist, testified that there is no indication in the psychological literature that appellant’s behavior would have a harmful effect on students.

Our sister court, in Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (Fla. 2nd DCA 1976), emphatically spelled out the rights of a nominee for continuing contract status under Section 230.23(5), Florida Statutes (1973). The court stated that nomination by the School Superintendent “mandates appointment by the Board absent good cause.” Id. at 894. Further, nomination by the Superintendent “is final unless the Board finds that the nominee is morally or professionally disqualified.” Id. at 895. This court has interpreted the law in a similar fashion, holding that a nominee has an “earned status” entitling the nominee to a hearing, and requiring a statement of good cause for the Board’s rejection. McDowell v. School Board of Suwannee County, 365 So.2d 454, 456 (Fla. 1st DCA 1978); see also Gainey v. School Board of Liberty County, 387 So.2d 1023 (Fla. 1st DCA 1980). Very recently, in Foreman v. Columbia County School Board, 429 So.2d 383 (Fla. 1st DCA 1983), we incorporated much of the significant language of Von Stephens in our opinion holding that good cause for rejection of a nominee had not been shown. Even more recently, we again relied upon Von Stephens in Greene v. School Board of Hamilton County, 444 So.2d 500 (Fla.1984), in deciding that where the School Superintendent recommended employment of an administrative employee for one year, the Board had no authority to award a two-year contract.

“Good cause” is not statutorily defined. However, the Von Stephens court indicated, and we agree, so far as concerns the qualifications of teachers, that the term may be equated with a showing of “failure ... to meet the criteria of Chapter 231, Fla.Stat.” 338 So.2d at 894. Section 231.-02, Florida Statutes, requires that a person shall be of “good moral character” in order to be eligible for appointment to a position in the district school system. Chapter 231 contains no definition of “good moral character.” Nor does it define “immorality” as used in Section 231.36(6), Florida Statutes, which provides that any member of the instructional staff may be suspended or dismissed at any time during the school year for “immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude.” “Immorality” is defined by Rule 6B-4.09(2), Florida Administrative Code:

(2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the educational profession into public disgrace or disrespect and impair the individual’s service in the community.

In proceedings such as this, involving the loss of a valuable professional position and dependent upon the application of such broad general terms as “immorality,” this court has held that “the critical matters in issue must be shown by evidence which is indubitably as ‘substantial’ as the eon sequences.” Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). And while we recognize that the immorality of pre-marital sex is not considered open to debate in some quarters, and this opinion should not be read as condoning such activity, we can find no substantial evidence satisfying the requirements of the above rule that appellant’s relationship with Palmer met the test of “good cause” justifying denial of her continuing contract rights.

First, it must be noted that the Board did not offer any direct proof of improper, pre-marital sexual conduct on appellant’s part. One’s presence as an overnight or even month-long guest in the residence of another of the opposite sex provides nothing beyond supposition to reflect upon that person’s “morality” that is self-evidently the basis of the Board’s order. See, Fisher v. Snyder, 476 F.2d 375 (8th Cir.1973). More importantly, in contrast to the Board’s expert’s speculation that such activity could have an adverse effect upon the students, the record is devoid of evidence that any conduct by appellant had such an effect on her students, or that her effectiveness as a teacher had been impaired in any respect. In truth, the Board’s own witness, appellant’s former assistant principal and principal, the one witness best qualified to observe appellant during her three-year tenure at the school, attested to appellant’s excellence as a teacher and the total absence of any parental or other complaint regarding any adverse effect upon her students. Furthermore, there is nothing in the record to suggest that appellant might or did attempt to inject her views regarding sexual morality into the classroom or into her private discussions with students. Additionally, the Board’s evidence fell far short of establishing that appellant’s relationship with Palmer was “common knowledge” pri- or to the time the matter was publicized by the Board’s denial of her continuing contract and the attendent litigation spawned by such denial. Certainly, the Board could not justify its granting of an annual contract, withdrawal of that contract, and the denial of a continuing contract, upon the ground that the relationship was “community knowledge” where that knowledge resulted after-the-fact from the Board’s own activities. See Boyette v. State Professional Practices Counsel, 346 So.2d 598 (Fla. 1st DCA 1977); Baker v. School Board of Marion County, 450 So.2d 1194 (Fla. 5th DCA 1984), opinion filed May 10, 1984. The Board’s action in favoring appellant with a teaching contract for three years, and its tender of an annual contract for the fourth year (subsequent to the events which it now advances as disqualifying her to teach), strongly suggests that in later denying appellant a continuing contract, or even employment on an annual contract, the Board was concerned more with what it considered to be an affront to its members’ own personal moral standards, than with appellant’s possible adverse effects on the students.

Finally, it is fairly obvious from the record of the hearing itself, as well as from the Board’s conclusion that appellant “failed to conform to the moral standards established by the vast majority of teachers employed by the School Board of Su-wannee County,” that the Board deemed it its responsibility to reach a decision based upon the application of subjective “community” standards, an assumption found objectionable in Von Stephens, 338 So.2d at 894. We emphasize that here there is no evidence of illicit sexual conduct on or about the school premises, or during any school activities or functions away from the school; nor is there evidence of any conduct involving a student, directly or indirectly, or any open lewdness or licentious behavior.

We are led to conclude from our examination of the authorities on the subject that in the absence of specific, valid, statutory directives, the appropriate standard to be applied is that private, off-campus conduct ostensibly involving a consensual sexual relationship between a teacher and an adult of the opposite sex cannot, in and of itself, provide “good cause” for a school board’s rejection of a teacher nominated for employment by the superintendent unless it is shown that such conduct adversely affects the ability to teach. See, generally, annotation, Sexual Conduct as Ground for Dismissal of Teacher or Denial or Revocation of Teaching Certificate, 78 ALR3rd 19. Since the evidence here does not meet this standard, the order appealed from must be set aside.

Reversed and remanded for further proceedings consistent with this opinion.

JOANOS, J., concurs.

NIMMONS, J., dissents without opinion.

ON MOTION FOR REHEARING OR CLARIFICATION

SMITH, Judge.

Appellee seeks clarification of the dispositional portion of our opinion, which reversed and remanded the cause “for further proceedings consistent with this opinion.” By this language, this court did not intend to invite appellee to conduct another evidentiary hearing to relitigate appellant’s teaching credentials. Appellant’s entitlement to award of a continuing contract has already been fully litigated, and the board’s denial of such contract has been reversed on appeal. “Further proceedings” in this cause, as ordered by this court, means that appellant is entitled to reinstatement to her teaching position on a continuing contract status, and reimbursement for any economic loss sustained by reason of the board’s wrongful denial of such contract, including expenses incurred in these proceedings. See, Gainey v. School Board of Liberty County, 387 So.2d 1023 (Fla. 1st DCA 1980).

Appellee’s motion for rehearing raises no issues not already considered and rejected in our original disposition of this case, and is hereby DENIED.

JO ANOS, J., concurs.

NIMMONS, J., dissents.

NIMMONS, Judge,

dissenting.

I dissent from that portion of the opinion denying the appellee’s motion for rehearing.


author: HOBSON, Acting Chief Judge.

text:
    Charles W. SMITH and Wilma Smith, his wife, Appellants, v. Foster BRANTLEY, Tampa Sand and Material, a division of Florida Mining and Materials Corporation, and Fidelity and Casualty Company of New York, Appellees.
    Nos. 83-170, 83-348.
    District Court of Appeal of Florida, Second District.
    June 27, 1984.
    Rehearing Denied Sept. 12, 1984.
    John T. Allen, Jr. of John T. Allen, Jr., P.A., St. Petersburg, for appellants.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, and William K. Bennett of Brad-ham, Bennett & Holton, St. Petersburg, for appellees.
   HOBSON, Acting Chief Judge.

Charles and Wilma Smith, the plaintiffs in a personal injury action against the defendants, Foster Brantley, Tampa Sand and Material, a division of Florida Mining and Materials Corporation, and Fidelity and Casualty Company of New York, contend on appeal, inter alia, that the trial court erred by granting a motion submitted on behalf of the corporate defendants for a directed verdict on the issue of punitive damages. We affirm.

The Smiths’ lawsuit stemmed from a mishap at a St. Petersburg intersection in which a vehicle being driven by Mr. Smith was struck by a loaded cement truck being operated by Brantley within the scope of his employment with Tampa Sand and Material. The collision may have been caused by faulty brakes on the Tampa Sand and Material-owned truck. The Smiths, while charging Brantley with negligence in the operation of the truck, sought to hold Tampa Sand and Material and Florida Mining and Materials Corporation directly liable for punitive damages. In particular, they alleged that, due to Tampa Sand and Material and Florida Mining and Materials Corporation’s “willful and wanton disregard for the rights of others” in “mandating” and “allowing” Brantley to operate the truck during the normal course of business despite their “knowledge” of the truck’s defective brakes, Mr. Smith suffered permanent injuries, sustained property damage, incurred medical expenses, and sustained loss of earnings. (The Smiths did not attempt to also hold Brantley liable for punitive damages, notwithstanding having alleged that he, too, knew that the brakes were not working properly.)

In order to support a claim against a defendant for direct punitive damages, the plaintiff must demonstrate that the defendant acted in willful and wanton disregard of the rights of others;- gross negligence, by itself, is not enough. See U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1064 (Fla.1983); Clooney v. Geeting, 352 So.2d 1216, 1219 (Fla.2d DCA 1977).

In considering a motion for a directed verdict, the trial court is required to evaluate the evidence in a light most favorable to the nonmoving party, and every reasonable inference adduced from the evidence must be indulged in the nonmoving party’s favor. See American Motors Corp. v. Ellis, 403 So.2d 459, 467 (Fla.5th DCA 1981). Thus, such a motion should be granted only if there is not any evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. Id.

Evaluating the evidence on the issue of punitive damages in the case at bar in a light most favorable to the Smiths, and indulging every reasonable inference adduced therefrom in their favor, the following factual picture may be drawn; Brant-ley, prior to driving the truck on the morning of the accident, determined that an air leak existed in the truck’s air brake system. He advised a mechanic for Tampa Sand and Material that he did not feel it was safe to drive the truck with the brakes in that condition. The mechanic looked at the brakes and told Brantley that they were okay. Brantley then complained to William Lowe, Tampa Sand and Material’s division manager, that the brakes were not functioning properly, and added that the mechanic acted like he did not want to fix them. Lowe spoke with the mechanic, who told him that the brakes were working all right. Brantley, upon being advised by Lowe that the mechanic had told him that the brakes were in proper working order, insisted that the brakes were not functioning all right, notwithstanding what the mechanic had said to Lowe. Lowe then ordered Brantley to either drive the truck or park it and go home. Interpreting Lowe’s command to mean that if he did not drive the truck he would be fired, Brantley took the truck out, and the collision occurred later that morning.

Even assuming that the mishap in the instant case was caused by faulty brakes on the truck being driven by Brantley, the foregoing factual scenario demonstrates that there was not enough evidence to show a willful and wanton disregard of the rights of others on the part of the corporate defendants, through the actions of Lowe, so as to hold the corporate defendants directly liable for punitive damages. Compare Wright Fruit Co. v. Morrison, 309 So.2d 54 (Fla. 2d DCA), cert. denied 316 So.2d 291 (Fla.1975). No evidence existed upon which the jury could have legally predicated a verdict against the corporate defendants on this issue.

The Smiths’ other arguments on appeal are without merit.

Accordingly, we affirm.

AFFIRMED.

RYDER and LEHAN/JJ., concur.

      . Recently, White Construction Co., Inc. v. Dupont, 455 So.2d 1026 (Fla.1984) approved and reaffirmed language set forth in Carraway v. Revell, 116 So.2d 16 (Fla.1959), standing for the legal principle that, in order to hold a defendant directly liable for punitive damages, the plaintiff must show that the defendant acted in willful and wanton disregard of the rights of others; gross negligence, by itself, is not enough.


author: WIGGINTON, Judge.

text:
    Larry VAN ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. AV-457.
    District Court of Appeal of Florida, First District.
    July 19, 1984.
    As Modified on Denial of Rehearing Sept. 13, 1984.
    Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellant appeals the trial court’s order of September 26, 1983, revoking his probation, adjudicating him guilty of unarmed robbery, and sentencing him to six years in prison with credit for 139 days previously served in connection with this offense. Appellant alleges error in the amount of credit given for time served and in the trial judge’s denial of his October 13, 1983 motion to that effect, entitled “Motion to Allow Credit for Jail Time.”

The record shows that on November 3, 1981, appellant was adjudged guilty of the offense of unarmed robbery and was given a split sentence of 364 days in jail with credit for 119 days already served, to be followed by three years probation. On May 10, 1983, he pled guilty to a violation of his probation for which he was sentenced to four months in jail, with three days credit, and his probation was extended for three years. In June, 1983, appellant was charged with a second violation of probation which is the subject of the order appealed.

As in Delgado v. State, 423 So.2d 603 (Fla. 3d DCA 1982), it appears from the record that appellant may not have been given full credit for the jail time he has served. Therefore, upon remand, the trial court should conduct a hearing to determine the time actually served in jail by appellant on the original split sentence and on the sentence imposed as a result of the first violation of probation, and to give appellant appropriate credit for that jail time on the sentence under review. See section 921.161(1), Florida Statutes. Appellant need not be present at the hearing upon remand.

The state argues that since appellant did not object to the alleged sentencing error below, he is precluded, from raising this issue on direct appeal and his only possible avenue at this point is via a Florida Rule of Criminal Procedure 3.800 motion in the trial court. We reject that assertion. Appellant properly may raise this issue by direct appeal from the sentence even in the absence of an objection below since the sentencing error is fundamental. Walker v. State, 442 So.2d 977 (Fla. 1st DCA 1983). See also James v. State, 443 So.2d 510 (Fla. 1st DCA 1984) and Polk v. State, 418 So.2d 388 (Fla. 1st DCA 1982). We reject the state’s argument that the decision in Epler v. Judges of Thirteenth J. C., Hillsborough Cty., 308 So.2d 134 (Fla. 2d DCA 1975) established the ruling that the failure to make an objection to this type of sentencing error renders the error non-reviewable in all cases. In Epler, unlike the instant case, pursuant to a plea bargain, the defendant voluntarily and specifically relinquished his right to be credited for time served prior to his sentencing. The court held that under those particular circumstances, the defendant waived his right to credit for time served and could not raise that issue on appeal. Therefore, the ruling in that case was limited to the circumstances therein and does not apply to the facts of the case sub judice.

The sentence is vacated and this cause is remanded to the trial court for resentenc-ing.

MILLS and SHIVERS, JJ., concur.