author: PER CURIAM. OVERTON, Justice,

text:
    Freddie Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 61549.
    Supreme Court of Florida.
    June 23, 1983.
    Rehearing Denied Sept. 29, 1983.
    Charles A. Tabscott, Orlando, for appellant.
    Jim Smith, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Freddie Lee Williams appeals his conviction of first-degree murder and sentence of death. We have jurisdiction, article Y, section 3(b)(1), Florida Constitution, and we affirm both the conviction and sentence.

The victim was Mary Robinson, Williams’ longtime girlfriend. On the night of the murder, the victim went to her sister’s house and there received a number of upsetting telephone calls from Williams. After these calls, the victim and her sister went to jai alai and returned to the Williams-Robinson apartment around eleven o’clock. The sister left; Williams soon arrived and shortly thereafter called the sister to report that something had happened to the victim. When the sister returned, the police were already present.

Earlier that evening, Williams had borrowed a neighbor’s handgun, telling him that he was going gambling. He testified that he left the gun on the dresser in a bedroom at home when he went out and that upon his return, the victim staggered toward him, already shot. He called the police and an ambulance. He also testified he did not want the police to find the weapon in his possession since he was on parole; he thus went into the bedroom and took the pistol from the dresser and threw it outside under a bush.

The state’s case revolved around longstanding domestic arguments between Williams and the victim and in particular Williams’ anger over the victim’s supposedly taking a shower that night, a sign he took to mean that the victim was cleaning up after being with a boyfriend.

After the conviction, the jury voted to recommend the death penalty. Upon finding two aggravating circumstances and nothing in mitigation, the trial court imposed a sentence of death.

Williams argues twelve issues on this appeal. We discuss only three; the remaining have been carefully considered and are found to be devoid of merit.

Williams first argues that the evidence is insufficient to support a verdict of first-degree murder. He asserts that the element that was not proved to the satisfaction of sufficiency of evidence standards was premeditation. He claims this is significant given the fact that there was no evidence of,- nor did the prosecution argue, felony murder.

The proper role that this Court plays in capital cases has been enunciated in Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff’d, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). There we said that

an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.

397 So.2d at 1123 (footnotes omitted). See also Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). It is our function, then, to see if there is substantial, competent evidence to support this verdict. We find there is.

Resolving all conflicts in favor of the jury verdict, we find that the record is sufficient to find premeditation beyond a reasonable doubt. The jury was told that the telephone conversations between the victim and Williams were upsetting to the victim. There was evidence of a prior stormy relationship between the victim and Williams. And, most significantly, the jury was told that Williams borrowed a pistol that evening prior to the shooting and then complained to a friend that the victim was washing up after being with another man. We have stated elsewhere that

A premeditated design to effect the death of a human being is a fully formed and conscious purpose to take human life, formed upon reflection and deliberation, entertained in the mind before and at the time of the homicide. The law does not prescribe the precise period of time which must elapse between the formation of and the execution of the intent to take human life in order to render the design a premeditated one; it may exist only a few moments and yet be premeditated. If the design to take human life was formed a sufficient length of time before its execution to admit of some reflection and deliberation on the part of the party entertaining it, and the party at the time of the execution of the intent was fully conscious of a settled and fixed purpose to take the life of a human being, and of the consequence of carrying such purpose into execution, the intent or design would be premeditated within the meaning of the law although the execution followed closely upon formation of the intent.

McCutchen v. State, 96 So.2d 152, 153 (Fla.1957). We think that under the facts of the instant case, there clearly was sufficient time before the killing for Williams to have formed a premeditated design, and the borrowing of the gun and the statements made by Williams about his anger at the victim cleaning up bear this out.

This Court is not unmindful that “where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977). See also Jaramillo v. State, 417 So.2d 257 (Fla.1982). At trial, the sole theory of defense was that the crime was committed by an unknown assailant. According to Williams, the victim was already wounded when he entered the apartment and he claimed he tried to help her. The state established by ballistics tests that the pistol' Williams had borrowed was the murder weapon. The physical evidence presented at trial shows that Williams’ story about an unknown murderer as well as the circumstances surrounding the disposal of the gun is clearly unreasonable. Williams did not present any reasonable hypothesis of innocence. The jury could properly conclude that Williams was not telling the truth and, given the evidence, that Williams’ act represented premeditated murder.

Defense counsel in closing argument suggested that the evidence showed, at most, second-degree murder and that this killing could have been a domestic heat-of-passion murder. The jury could properly find otherwise based on what the evidence did not show. There was no evidence of any struggle or commotion or any facts which might suggest a confrontation of any physical or violent nature between the victim and Williams. Given the location of the victim crouching on the corner of the bed when she was shot, the presence of toothpaste and a toothbrush on the bed, and the fact that the gunshot wound was not suffered at close range, the jury could have found that Williams confronted the victim while she was brushing her teeth causing her to move to the bedroom. He then shot her once in the side of the neck while her head was turned away from him and while her arm was raised in a defensive posture. The fact that the victim was only shot once is not dispositive of lack of premeditation since, in this case, the wound was in the neck region and immediately caused massive and visible loss of spurting blood. While it was within the province of the jury to find second-degree murder in this case, despite appellant’s claim of innocence, we cannot say that the evidence, including the physical facts, is such that the jury was precluded, as a matter of law, from finding first-degree murder.

We hold, then, that the jury could properly find the element of premeditation in this murder and that there was both substantial and competent evidence to support this.

Williams next argues that the trial court erred in refusing to give his instruction on circumstantial evidence. He relies on McCall v. State, 116 Fla. 179, 156 So. 325 (1934), overruled, State v. Anderson, 270 So.2d 353 (Fla.1972), as stated in Miller v. State, 403 So.2d 1014 (Fla. 5th DCA 1981), petition denied, 412 So.2d 468 (Fla.1982); Leavine v. State, 109 Fla. 447, 147 So. 897 (1933), overruled, State v. Anderson, 270 So.2d 353 (Fla.1972), as stated in Miller v. State, 403 So.2d 1014 (Fla. 5th DCA 1981), petition denied, 412 So.2d 468 (Fla.1982); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979); Lee v. State, 362 So.2d 692 (Fla. 4th DCA 1978); and Newsome v. State, 355 So.2d 483 (Fla. 2d DCA 1978), disagreed with, Miller v. State, 403 So.2d 1014 (Fla. 5th DCA 1981), petition denied, 412 So.2d 468 (Fla.1982), for the proposition that an instruction on circumstantial evidence is required where the prosecution relies solely on circumstantial evidence to prove an essential element of the offense charged. We agree, but we also find that those cases precede our recent opinion revising the standard jury instructions. See In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). There we explicitly stated that the circumstantial evidence instruction is now unnecessary because the instructions on reasonable doubt and burden of proof are sufficient to properly instruct the jury and a separate instruction solely on circumstantial evidence would be duplicative.

Williams argues that the standard jury instructions are flexible guidelines and not inflexible rules and that the trial court still should have given the “old” circumstantial evidence instruction since circumstantial evidence was so prominent in this case. We appreciated this possibility when we noted in our jury instruction revision opinion that “[t]he elimination of the current standard instruction on circumstantial evidence does not totally prohibit such an instruction if a trial judge, in his or her discretion, feels that such is necessary under the peculiar facts of a specific case.” Id. at 595. In the case sub judice, the trial court in its discretion felt the extra instruction was unnecessary. We will not disturb the action of the lower court in the exercise of its judicial discretion unless palpable abuse of this discretion is clearly shown from the record. Williams has not shown the trial judge’s action to be abusive of his discretion.

Williams’ final point relates to the sentence of death. He argues that the death sentence is unwarranted when this case is compared to similar cases and especially to those cases where the sentence of death is overturned and a life sentence mandated. He also argues that the trial court erred by doubling the aggravating circumstances.

The trial court’s findings of fact included the following:

There are nine aggravating circumstances set out in Florida Statutes 921.-41(5) (sic).
A review of the aggravating circumstances prescribed by statute shows that there are two aggravating circumstances present. These are Subsections (a) and (b) and are as follows:
(a) The capital felony was committed by a person under sentence of imprisonment.
(b) The defendant was previously convicted of another capital felony or [of] a felony involving the use of (sic) threat or (sic) violence to the person.

Regarding aggravating circumstance (a), the Defendant was under sentence of imprisonment when he committed the murder for which he was convicted in this case. In Count Two of Orange County Case Number CR74-3442, the Defendant pled guilty to possession of a firearm by a convicted felon, and on June 6, 1975 was sentenced to 10 years imprisonment. That at the time the murder in this case was committed the Defendant was still on parole. A person on parole is still under sentence of imprisonment. Aldridge v. State of Florida, 351 So.2d 942.

Regarding aggravating circumstance (b), the Defendant had been previously convicted of a felony involving the use or threat of violence to another. In Orange County Case Number 71-1551 the Defendant pled guilty to aggravated assault and was sentenced to 5 years imprisonment. In Count One of Orange County Case Number CR74-3442 the Defendant pled guilty to aggravated assault. In both of these aggravated assault cases Freddie Lee Williams shot his victims.

The other aggravating circumstances prescribed by statute are not present.

The Court has carefully considered the mitigating circumstances prescribed by Statute and finds none to be present.

At the penalty phase trial the defendant presented evidence from relatives and friends that he is a good person and that he was kind to them. This evidence does not rise to a non-statutory mitigating circumstance which could offset the aggravating circumstances.

Williams argues that it is a duty of this Court to make a proportionality determination and decide how this case compares with other cases. We agree. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). “[W]e compare the case under review with all past capital cases to determine whether or not the punishment is too great.” 392 So.2d at 1331. This we have done. We conclude that the sentence imposed here is not comparatively inappropriate and thus is proper.

Williams cites Phippen v. State, 389 So.2d 991 (Fla.1980); Brown v. State, 367 So.2d 616 (Fla.1979); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Chambers v. State, 339 So.2d 204 (Fla.1976); and Tedder v. State, 322 So.2d 908 (Fla.1975), as decisions wherein this Court has reduced a death sentence to one of life imprisonment under circumstances seemingly more serious than those in the present case. These cases are not only factually inapposite, but each was a jury override, a situation where the trial judge pronounced a sentence of death after the jury by majority vote has recommended a life sentence. Factors and considerations were thus present in those cited cases that are absent in the one sub judice.

Likewise, Williams cites Blair v. State, 406 So.2d 1103 (Fla.1981); Kampff v. State, 371 So.2d 1007 (Fla.1979); and Halliwell v. State, 323 So.2d 557 (Fla.1975), as examples where this Court has reduced a sentence of death to one of life even after the jury recommended death. These cases are inap-posite, however. In Blair, the trial judge improperly included several aggravating factors; since there was a mitigating factor, this Court vacated the death sentence. In Kampff, all of the trial court’s findings of aggravating factors were found to be in error; since there were at least two mitigating factors, the sentence of death was improper. Finally, in Halliwell, the sole aggravating circumstance was found not to apply; the presence of numerous mitigating factors warranted the reduction of the sentence from death to life imprisonment. While all three of these cases involved a domestic dispute, as does the instant case, the rationale for the overturning of the death sentences in each was error in the aggravation/mitigation equation and not the fact of the domestic dispute. Since we hold, immediately below, that there was no error in the trial court’s findings of the aggravating factors, Williams’ proportionality argument fails.

Finally, Williams asserts that the trial court erred by doubling the aggravating circumstances. We disagree. The trial court properly found that Williams was under sentence of imprisonment because of the 1975 Orange County conviction and 10-year sentence. Williams was on parole at the time of this homicide; an actual incarceration is not necessary. Aldridge v. State, 351 So.2d 942 (Fla.1977), cert. denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978). This is satisfactory proof of section 921.141(5)(a), Florida Statutes (1979). Similarly, section 921.141(5)(b) was proven by either the 1972 conviction for aggravated assault or by the 1975 aggravated assault conviction. There was no doubling of the aggravating circumstances in this case.

Appellant, Freddie Lee Williams, was properly convicted of first-degree murder. The jury recommended death. The trial court correctly found two aggravating circumstances and nothing in mitigation. We have compared this case to similar cases and have concluded the death sentence is appropriate. Therefore, the judgment of guilty of first-degree murder and the sentence of death are affirmed.

It is so ordered.

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

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

OVERTON, Justice,

concurring in part, dissenting in part.

I concur with the conviction. I dissent from the imposition of the death sentence. In my judgment, proportionate review with other cases requires a reduction of the sentence to life imprisonment without parole for twenty-five years. I disagree with the majority opinion that this case is factually inapposite from Blair v. State, 406 So.2d 1103 (Fla.1981); Phippen v. State, 389 So.2d 991 (Fla.1980); Kampff v. State, 371 So.2d 1007 (Fla.1979); Brown v. State, 367 So.2d 616 (Fla.1979); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Chambers v. State, 339 So.2d 204 (Fla.1976); Halliwell v. State, 323 So.2d 557 (Fla.1975); and Tedder v. State, 322 So.2d 908 (Fla.1975). Those cases must be used to properly evaluate the proportionality of the death sentence in this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John MICHAEL, Appellant, v. STATE of Florida, Appellee.
    No. 60712.
    Supreme Court of Florida.
    July 14, 1983.
    Rehearing Denied Sept. 29, 1983.

      Jerry Hill, Public Defender and David A. Davis, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

John Michael appeals his conviction of first-degree murder and sentence of death. We have jurisdiction and affirm both the conviction and sentence.

On July 3, 1980 the body of 83-year-old Fern Umble was found near Tarpon Springs, Florida. She had been severely beaten, strangled, and stabbed. Miss Um-ble had moved to Largo, Florida, in June of 1980 with 37-year-old John Michael. The two had known each other for some time while in Ohio and had a very close relationship. Miss Umble, a very religious woman, looked to Michael for advice and support in business and religious matters; both referred to him as a prophet of God. In February of 1980 she changed her will to leave everything to Michael to “continue the work of the Lord.” The original will left her sizeable estate to her brother, to Oral Roberts University, and to several nationally known evangelists.

In the early part of July an acquaintance of Michael’s, a sixteen-year-old boy on summer vacation, moved in with the couple for a few days. Michael and the boy had a homosexual affair. Miss Umble and Michael had a small argument on the morning of July second. Michael took the boy to St. Petersburg, saying that he wanted to talk with Miss Umble alone. Several hours later Michael returned for the boy and told him that he had kicked her out of the house and had taken her to a park where she could catch a limousine to the airport. He further told the boy that Miss Umble had spilled ketchup on the living room rug creating a large stain. The two went to a sporting goods store where Michael bought the boy a thousand dollars’ worth of scuba equipment.

On July 11 Michael reported Miss Umble missing. He told the police that on the morning of July second Miss Umble said that she wanted to make a surprise visit to her friends in Ohio. She asked to be taken to a local K-Mart so that she could buy some clothes and catch a taxi to the airport. That was the last time he saw her. He called her friends in Ohio several times in the next few days, and, when no one had seen her, he reported her missing.

On July 15 Michael identified a picture of the body and the clothes, quilt, bathrobe, and towel found with it. The body was clothed in a different dress from the one Miss Umble had worn on leaving, and Michael said that she must have returned to their house trailer from the K-Mart store because she had not taken the other items with her when she left. The police became suspicious of Michael because of the inconsistencies in his story and searched the trailer. The large ketchup stain was found to be blood that matched Miss Umble’s type. Fibers and hairs from the trunk of their Cadillac matched those found on the victim’s body. Tire tracks found near the body came from their automobile. A lumi-nal test for bloodstains found a large stain that could have resulted from the victim being dragged into her bedroom and hidden in the closet. The police found Miss Um-ble’s will in a lock box in Michael’s room and confiscated it. On July 22 Michael boarded a plane for Cleveland and disappeared until arrested in Arizona on the second of August.

Michael was in the Pinellas County jail when indicted on September 4, 1980. He confessed to a fellow inmate, Jeffery Allen, on September 5th and on September 10th Allen contacted Detective Bolle and reported Michael’s confession. A similar set of events occurred with another inmate, Thomas Carmichael. Allen and Carmichael volunteered the incriminating statements to Detective Bolle without any prior inducement. While in jail Michael wrote Allen several love letters, one of which was introduced at trial. Michael had been found competent to stand trial, but there was testimony that he suffered from mental or emotional problems.

Michael urges seven points on appeal. After reviewing the instant record, we find Michael’s conviction supported by competent substantial evidence and the issues raised show no reversible error.

Michael contends that the trial court erred in not suppressing the incriminating statements made to his fellow inmates because their admission violated his sixth amendment right to counsel. In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the United States Supreme Court held that statements made to a fellow inmate acting as a paid government informant are inadmissible because they violate an accused’s right to counsel. This Court applied Henry in Malone v. State, 390 So.2d 338 (Fla.1980), cert. denied, 450 U.S. 1034, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981), and granted a new trial because the state had asked Malone’s cellmate to obtain the incriminating statements that were used at trial.

Not all incriminating statements made to cellmates while in custody, however, are inadmissible. In Barfield v. State, 402 So.2d 377 (Fla.1981), an inmate’s testimony concerning incriminating statements was admitted after a finding that the inmate had not acted pursuant to government instruction. In Barfield the inmate approached the authorities on his own initiative after hearing the incriminating statements. See Sired v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982).

The facts in the instant case are similar to Barfield. Michael was in custody when indicted on September 4, 1980. He confessed to Allen on September 5, and on September 10 Allen volunteered the statements to Detective Bolle. That was the first time any law enforcement agent had talked with Allen about the Michael investigation. A similar sequence of events occurred with the confession to Carmichael.

Michael contends that, because Allen and Carmichael had been used as informants during prior prison riots¡ they continued to be agents of Detective Bolle. Detective Bolle, however, had been assigned to the Pinellas County jail exclusively to investigate crimes occurring wholly within the jail and to obtain intelligence on any possible riots or disturbances that might happen in the jail. Pursuant to his job of uncovering possible riot or disturbance conditions it was necessary to call upon prisoner witnesses to give testimony. He used Allen and Carmichael as informants in those eases, but had not requested them to supply information about the instant case. We do not agree with Michael’s contention that once an inmate is used as an informant, he becomes an agent for the state in all subsequent situations where he is an informant.

Michael also contends that the evidence presented by the state was not sufficient to prove him guilty beyond a reasonable doubt and that the evidence does not exclude a reasonable hypothesis of innocence. We disagree and hold that there is substantial, competent evidence in the record to sustain Michael’s conviction. We recognize that, when the only proof of guilt is circumstantial, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). But here, in addition to the circumstantial evidence, we have Michael’s confessions to inmates Allen and Carmichael. This constitutes direct evidence of the crime making the circumstantial evidence rule inapplicable.

Michael urges that the warrant obtained to search the house trailer was invalid because the supporting affidavit lacked probable cause. After review of the affidavit filed by the detective in charge of the investigation, we find that there was sufficient probable cause for the warrant to be issued.

Michael also argues that the police exceeded the authority of the warrant when they seized a small gray box that contained personal papers and Miss Umble’s will. The police had the authority to search the contents of the box for possible evidence of the crime, and the discovery and use of the will was proper. Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976).

Michael further contends that the trial court erred in admitting a letter that he wrote to fellow inmate Jeffery Allen concerning his love and homosexual desires for Allen. After reviewing the record, we find no error in admitting the letter. Michael’s homosexual preferences were already before the jury, and the trial court found the letter relevant in determining the voluntariness of Michael’s confession to Allen.

Michael also challenges his sentence of death which the court imposed after the jury had recommended the death penalty. The trial court found as three aggravating circumstances that the murder was: (1) committed for pecuniary gain; (2) exceptionally heinous, atrocious, or cruel; and (3) committed in a cold, calculated and premeditated manner. The only mitigating circumstance found by the trial court was Michael’s lack of a significant history of prior criminal activity.

Michael contends that the trial court failed to consider his mental and emotional disturbances in mitigation. In support of this contention, Michael introduced the report of one psychiatrist which expressed the possibility that he might not have been competent to stand trial. Evidence of incompetency to stand trial is not' evidence of a defective mental condition at the time of commission of the offense. The psychiatrist who questioned his competency to stand trial could not form an opinion as to his competency at the time of the murder, nor did he express an opinion on any statutory' mental mitigating circumstance. Further, Michael’s mother testified that she had no knowledge of any significant psychological problems over the last fifteen years. Therefore, we find no error in the trial court’s finding that the mental mitigating factors did not apply. Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982).

Michael further contends that the aggravating factors of heinous, atrocious, and cruel and cold, calculated, and premeditated should not apply because his mental and emotional problems caused the murder. He cites two cases, reasoning that in both the death sentences were reduced to life imprisonment because the mental and emotional disturbances of the defendants directly caused the murders and rendered these aggravating factors inapplicable. In both cases, however, the aggravating factors were found to apply but were outweighed by the mitigating factors. A defendant’s emotional and mental problems do not affect the application of these two aggravating factors, but, rather, affect the weight given the mitigating factors. There was sufficient evidence for the trial court to find that the aggravating factor of committed in a cold, calculated, and premeditated manner was proven beyond a reasonable doubt.

Finally, we find no merit in Michael’s contention that the aggravating factor that the murder was committed for pecuniary gain was not proven beyond a reasonable doubt. There is sufficient evidence in the record for the jury and the trial court to apply this aggravating factor. In the findings in support of the sentence of death the trial court stated:

a. The capital felony was committed for pecuniary gain. Defendant, Michael, in the early part of 1980 was present when the victim, Fern Umble, revoked her will leaving her estate to various evangelistic entities and her brother and executed a new will bequeathing her entire estate to defendant, Michael. The defendant after murdering Miss Umble assumed possession of the small strong box in which the will had been placed for security.
To insure that there would be no question that the victim, Umble, was dead and her estate subject to probation defendant, Michael, deposited the body in a place where it would be expected to be found within a reasonable time and wrapped it in a blanket or comforter which could indisputably be identified as belonging to the victim, Umble; this blanket or comforter had written on it the name of Miss Umble’s sister, Myrtle, and the year 1903.
Circumstances indicate that at least one of the motives for the death of Miss Umble was pecuniary gain which the defendant hoped to obtain as the sole beneficiary of her estate.

Finding no error, we affirm both the conviction and sentence.

It is so ordered.

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

      . Art. V, § 3(b)(1), Fla.Const.

      . § 921.141(6)(b), (f), Fla.Stat. (1979).

      . Huckaby v. State, 343 So.2d 29 (Fla.), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977); Jones v. State, 332 So.2d 615 (Fla.1976).


author: ADKINS, Justice. ALDERMAN, Chief Justice,

text:
    Danny Lee LOWE, Petitioner, v. The Honorable Joseph E. PRICE, Respondent.
    No. 61489.
    Supreme Court of Florida.
    July 14, 1983.
    Rehearing Denied Sept. 30, 1983.

      Donald A. Wich, Jr. of Sullivan, Rana-ghan, Bailey & Gleason, Pompano Beach, for petitioner.
    Jim Smith, Atty. Gen. and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for respondent.
   ADKINS, Justice.

By petition for review we have before us a decision of the Fourth District Court of Appeal, Lowe v. Price, 405 So.2d 308 (Fla. 4th DCA 1981), which expressly and directly conflicts with decisions of this Court, Feger v. Fish, 106 Fla. 564, 143 So. 605 (1932); Dickoff v. Dewell, 152 Fla. 240, 9 So.2d 804 (1942), and with decisions of various district courts of appeal, Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981); State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978) and cases holding similarly. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner, Lowe, (hereinafter defendant), was charged by information with sexual battery, armed robbery and breaking and entering. Defendant was arrested on July 31,1979. The state entered a nolle prosequi directed to the information and obtained a grand jury indictment containing the identical charges. After discovery violations by the state, the trial court dismissed the indictment against defendant and the state appealed, notice of appeal dated July 1, 1980. Mandate was issued July 15, 1981, and received by the trial court on July 16, 1981. Defendant filed a motion for discharge on August 5, 1981, arguing that the time for speedy trial had expired. Fla.R. Crim.P. 3.191. The trial court denied defendant’s motion, but granted a stay pending review of its action on defendant’s petition for writ of prohibition.

The Fourth District Court of Appeal denied the writ, and as grounds therefor held prohibition to be an inappropriate remedy and that it had no jurisdiction to hear the case prior to trial.

We first address defendant’s claim that the district court erred in concluding that prohibition is inappropriate to remedy a speedy trial violation. On the authority of Sherrod v. Franza, 421 So.2d 161 (Fla.1983), we reiterate that prohibition is an appropriate remedy to prohibit trial court proceedings where an accused has been denied his right to a speedy trial and his motion for discharge has been denied. See, Sibert v. Hare, 276 So.2d 523 (Fla. 4th DCA 1973). Prohibition is a proper remedy to prevent a lower court from proceeding in a cause over which it has no jurisdiction. State ex rel. Girard v. McNulty, 348 So.2d 311 (Fla.1977), and a court does not have jurisdiction to try a defendant when he is entitled to discharge because his right to speedy trial has been violated. Having so concluded, we now turn to whether the trial court erred in denying defendant’s motion for discharge due to speedy trial rule violations, thereby depriving it of jurisdiction to proceed further.

We requested supplemental briefs in this case on the issue of whether the new speedy trial rule effective January 1, 1981, applied to these proceedings. Florida Bar In re Rules of Criminal Procedure, 389 So.2d 610 (Fla.1980); Fla.R.Crim.P. 3.191. We now answer this question affirmatively.

Decisional law and rules in effect at the time an appeal is decided govern the case even if there has been a change since time of trial. Wheeler v. State, 344 So.2d 244 (Fla.1977), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979); Collins v. Wainwright, 311 So.2d 787 (Fla. 4th DCA 1975).

In the present case, defendant moved for discharge on August 5, 1981. This motion was denied by the trial court and the court ordered a stay pending outcome of the appeal. Tested under current Florida Rule of Criminal Procedure 3.191(g), the court did not err in denying defendant’s motion because under Florida Rule of Criminal Procedure 3.191(d)(3), a motion for discharge is not timely unless presented on or after the expiration of the applicable time periods. Under Rule 3.191(g), a defendant whose trial has been delayed by an appeal must be brought to trial within ninety days from the date the trial court receives mandate.

Mandate from the appellate court in the instant case was received by the trial court on July 16, 1981. The ninety-day speedy trial time period began to run anew on that date. After only twenty days had run on the speedy trial clock, defendant moved for discharge prematurely, and upon taking an appeal from the denial of his motion, defendant asked for, and was granted, a stay which remains in effect.

Consequently the trial court action in denying the motion for discharge was in conformity with Rule 3.191(g). The district court’s action in declining to issue the writ of prohibition was correct in that the trial court was not acting in excess of its jurisdiction. The decision is approved for the reasons stated in this opinion.

It is so ordered.

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

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

ALDERMAN, Chief Justice,

concurring in part, dissenting in part.

I agree with the majority’s holding that the trial court’s action in denying Lowe’s motion for discharge was in conformity with Florida Rule of Criminal Procedure 3.191(g), and I concur with the result of the majority opinion which approves the district court’s denial of Lowe’s petition for writ of prohibition. But for the reasons stated in my dissent in Sherrod v. Franza, 427 So.2d 161 (Fla.1983), I dissent from the holding that the district court erred in concluding that prohibition is inappropriate to remedy a speedy trial rule violation. In my view, prohibition is not a proper remedy to seek review of a trial court’s order denying a defendant’s motion for discharge based on the speedy trial rule.


text:
    Dawn Ann SOBEL, Petitioner, v. STATE of Florida, Respondent.
    No. 61960.
    Supreme Court of Florida.
    July 21, 1983.
    Rehearing Denied Sept. 28, 1983.

      Richard E. Gerstein and Paul M. Rash-kind of Sams, Gerstein & Ward, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

This cause is before us to review a decision of the District Court of Appeal, Fourth District, Sobel v. State, 410 So.2d 556 (Fla. 4th DCA 1982). We granted review because of conflict with Turner v. State, 369 So.2d 670 (Fla. 1st DCA 1979). We have jurisdiction, article V, section 3(b)(3), Florida Constitution.

Dawn Sobel, John Gombos, and others were indicted for first degree murder of a police officer shot by Gombos while he and Sobel were seeking to aid the escape of prisoners guarded by the officer. Gombos was tried first and convicted of second degree murder. Prior to the commencement of her trial, Sobel moved to have the first degree murder charge against her reduced to second degree murder on the reasoning that she was an aider and abettor to Gom-bos and could be convicted of no higher offense than that for which Gombos had been convicted. That motion was denied and she was subsequently convicted of first degree murder and of aiding the escape of a prisoner.

In affirming Sobel’s conviction, the Fourth District recognized that Potts v. State, 403 So.2d 443 (Fla. 2d DCA 1981), was in conflict with Turner, and chose to rely upon the authority of Potts. This Court affirmed Potts, thereby disapproving Turner. Potts v. State, 430 So.2d 900 (Fla.1982). The question of whether an aider or abettor to a substantive crime may be convicted under section 777.011, Florida Statutes (1977), of a greater crime than the confederate/principal has been thus answered affirmatively by this Court.

The petitioner also challenges her conviction on the ground that she received ineffective assistance from trial counsel who approached the bench during trial and argued for a mistrial on the ground that he had been ineffective in his representation. After consideration, the trial court denied the motion for mistrial. Petitioner did not move for post-conviction relief, but appealed the denial of the motion. Upon motion of respondent, the Fourth District Court of Appeal struck this point on appeal without explication.

Although we are not precluded from considering this issue along with the conflict issue, we decline to do so under the present posture of the case and the state of the record available to us. Trushin v. State, 425 So.2d 1126 (Fla.1982). Our declination is without prejudice to appellant’s right to raise the issue by way of Florida Rule of Criminal Procedure 3.850.

We approve the decision of the district court of appeal.

It is so ordered.

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

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

Although I concur with that part of the majority opinion which reaffirms our decision in Potts, I strongly dissent from that portion of the opinion which expressly approves the refusal of the district court to address petitioner’s claim of ineffective assistance of counsel at trial. That issue was directly ruled on by the trial court during the course of the trial when petitioner’s motion for mistrial was denied. In my view the majority opinion illogically requires the trial court to reconsider an issue which it has already passed on. The petitioner has been denied her right to a direct appeal from the denial of her motion for mistrial, and her claim of ineffective assistance of counsel has been relegated to a collateral attack proceeding even though it was expressly ruled on by the trial court and made an issue for appeal. The principle established in this case will result in multiple criminal proceedings, causing delays in the process and substantial additional costs and expenses to the State of Florida.

It is necessary to briefly set forth the material facts in this case to fully understand the serious administrative problem caused by the majority opinion. The record in this case reflects that defense counsel, in the middle of the second week of trial, moved for a mistrial, stating to the court that he had had health problems through the summer prior to trial and that “there were things I should have done in Dawn’s case that I didn’t, and I didn’t do them.” He stated that he had failed to properly prepare for the case and that there was lack of communication between himself and his client. Further, a young lawyer who was associated with him for the trial of the case expressed to the judge his concern for how the case was handled; he stated that the case disturbed him to the extent that he had discussed it with two other attorneys during the weekend recess and they had agreed that under the circumstances the petitioner’s counsel was ineffective and a motion for mistrial would be' appropriate. The specific examples given of ineffective counsel were the failure to make motions, the improper assertion of the insanity defense, and the failure to properly investigate the case.

The trial court made express findings and stated:

You know it is an unusual situation if you should take this, if you take this to the ultimate, any time anyone was charged with any kind of offense, all they would have to do to negate the State’s ability to successfully try them would be to get an attorney and have him screw up the case and halfway through it move for a mistrial.
I don’t think the law contemplates that a trial should be defeated in that fashion, and I have not, again I have not heard anything from either one of you, except some displeasure one with the other, that there was anything — the only thing that I have heard that, apparently, you have not done is listen to the tape, and, apparently, there was something in the transcription that was a little different. I haven’t read the transcription, I don’t know what the distinction is. But I don’t know that the difference is going to make any substantial difference in the way that you prepared the defense.
Obviously, you filed a motion: not guilty by reason of insanity, and it could not be sustained through the testimony. I am sure that it is not the first time that that has happened. That’s tried often. So I don’t see anything disastrous about that.
The Court had no alternative but to strike the defense because there was no testimony to support it.
I am not inclined at this point to abort the trial. I am not going to grant your motion for mistrial.

Petitioner raised and briefed the issue of the denial of the mistrial motion on appeal to the district court. The state refused to address the issue on the merits and moved to strike the issue. The state’s motion to strike was granted by the district court. The majority recognizes that we could take jurisdiction of the issue but declines to do so without prejudice to the petitioner representing the issue in a Rule 3.850 motion.

I find that the district court erroneously struck the issue of the denial of a motion for mistrial relating to the ineffective assistance of counsel. Clearly, in my opinion, it was constitutionally required to address the issue on the merits. This issue was raised at trial and was ruled on by the trial judge. I would consider the issue on its merits and dispose of it at this time since the matter was ruled on by the trial court and has been argued on the merits in the briefs before this Court.

The purpose of a Rule 8.850 proceeding is to provide an expeditious remedy for attacking a judgment or a sentence imposed in violation of the constitution and laws of the United States or of the State of Florida. It clearly was not intended to provide an additional proceeding for an issue which was presented to the trial court and properly raised on appeal. In this case we are setting a bad precedent by encouraging multiple judicial proceedings which are not required.

In my view, upon the first indication or knowledge by the trial judge that there is ineffective assistance of counsel, he should immediately address the issue, take testimony if necessary, and resolve it. To leave the issue open for further proceedings only creates unnecessary work for prosecutors, defense counsel, and the judiciary.

The trial judge in this instance expressed concern that to grant a mistrial for ineffective assistance of counsel would set a dangerous precedent, opening the door for this issue to be used in a tactical manner in criminal trials. I disagree with the trial judge’s concern. Although a defendant may be entitled to a mistrial because his counsel was dilatory and unprepared, that does not mean that there is no recourse to avoid the improper use of our criminal justice process. Counsel guilty of such conduct would be subject to sanctions which could include counsel personally paying the costs and expenses of the trial up to the time of the mistrial, in addition to counsel being subject to appropriate disciplinary proceedings. I reject the view asserted by the attorney general that trial counsel is neither legally nor ethically competent to raise his own ineffectiveness before the trial judge. In Valle v. State, 394 So.2d 1004 (Fla.1981), we recognized that it was a proper issue to be brought up by trial counsel where the failure to prepare was brought about by the speed in which the case was brought to trial and not by trial counsel’s dilatory action. In this case, counsel’s alleged ineffectiveness was argued to have been caused, at least in part, by defense counsel’s physical condition. In both instances counsel was unprepared.

I would find that on this record the trial judge should have taken more time to have a hearing on the issue. The contentions of counsel are basically unrefuted and, therefore, on this record, I must find that a mistrial should have been granted. I also would find, however, that the conduct of petitioner’s counsel justified sanctions in the amount of the cost of the proceedings up to the time of the, motion for mistrial. In addition, I would direct that the record in this cause be referred to the appropriate grievance committee for possible disciplinary action.

For the reasons expressed, I would reverse and remand for a new trial.


author: ADKINS, Justice.

text:
    Carl JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 60202.
    Supreme Court of Florida.
    July 28, 1983.
    Rehearing Denied Sept. 30, 1983.

      Larry G. Turner of the Law Offices of Larry G. Turner, and Bill Salmon of the Law Offices of Bill Salmon, Gainesville, for appellant.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for appel-lee.
   ADKINS, Justice.

This is an appeal from an order of the Circuit Court of the Fourteenth Judicial Circuit in and for Bay County denying a motion for post-conviction relief. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const.

Appellant, Carl Jackson, was charged with robbery, kidnapping, and two counts of first-degree murder. The crimes are described in more detail in our opinion in Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979) (hereinafter Jackson I). Ms. Dedee Costello was appointed to represent appellant at trial and entered on his behalf a plea of not guilty. He was, however, found guilty on all counts.

At the conclusion of the sentencing phase of the trial, the jury recommended that appellant be put to death for both murders. The trial court concurred and imposed the death penalty, which this Court affirmed. Jackson I. Appellant thereafter filed in the circuit court, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, a motion for post-conviction relief alleging several infirmities in the conduct of his trial. The circuit court denied the motion and this appeal followed.

Three of the four issues argued by appellant are matters that could or should have been raised on direct appeal, and so are not cognizable in this proceeding. Adams v. State, 380 So.2d 423 (Fla.1980). Appellant’s allegations that the excusal of certain prospective jurors violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), could and should have been raised in his initial appeal to this Court. Meeks v. State, 382 So.2d 673 (Fla.1980). Similarly, he should have argued the questions of whether the trial court erred by not ordering a presentence investigation and whether the judge’s jury instructions and sentencing order violated the decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We need not consider those three issues in this opinion.

The issue properly raised in this proceeding is appellant’s contention that the trial court erred in finding that he was afforded effective assistance of counsel at trial, sentencing, and appeal. First in the list of alleged errors and omissions is defense counsel’s “failure to adequately conduct discovery, investigate, and prepare in anticipation of trial.” Appellant notes that his attorney deposed only one of the more than twenty potential witnesses named on a list provided by the state and so was “obviously disadvantaged” in her cross-examination of the state’s witnesses. The lack of depositions also hindered counsel’s attempts to have suppressed certain evidence introduced at trial, claims appellant.

Next in the list of alleged errors are the failure to timely object to the introduction of a fingerprint which appellant claims was not properly marked as his and counsel’s “ineffective” efforts to obtain a change in venue. Both are attributed to his attorney’s “lack of experience and preparation.”

Defense counsel’s voir dire examination of potential jurors is faulted in several ways. Appellant argues that the issues of pre-trial publicity and racial bias were only cursorily and ineffectively delved into, and that counsel’s Witherspoon inquiry was glaringly deficient. Also faulted are his counsel’s failure to request sequestered voir dire of certain prospective jurors and to ask for additional peremptory challenges after using the forty allotted appellant.

The total “failure to investigate and present a defense” is a significant example of the inadequate representation which he received, claims appellant. He argues that his lawyer was made aware of several individuals whose testimony might have provided an alibi defense, and that she failed to investigate and develop the same simply because an assistant state attorney assured her that the men in question would testify that they had not been with appellant at the relevant times. Finally, appellant notes that his counsel failed to request jury instructions on the effect of a jury recommendation of mercy and did not request a presentence investigation report before the trial court passed sentence.

In Knight v. State, 394 So.2d 997 (Fla.1981), we established the standards which must be met by a party alleging ineffective assistance of counsel as here. The four-part test requires:

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal in DeCoster III [United States v. DeCoster, 624 F.2d 196 (D.C.Cir. 1979)]: “To be ‘below average’ is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.” 624 F.2d at 215. We recognize that in applying this standard, death penalty cases are different, and consequently the performance of counsel must be judged in light of these circumstances.
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established.

394 So.2d at 1001 (footnote omitted).

Although appellant met the first requirement above, he failed to show that most of the omissions were serious deficiencies beyond what would be expected of competent counsel. His expert witness’ testimony that defense counsel’s pre-trial discovery and motions were inadequate was countered by that of appellee’s expert witness who stated that the representation provided was “reasonably effective.” The trial court agreed with appellee’s witness and nothing in the record compels us to disturb that result.

The lack of objection to the labeling of the fingerprint also fails to convince us that counsel was ineffective. Even if we agreed that such was measurably below what is expected of competent attorneys, it certainly did not so prejudice appellant that he might otherwise not have been found guilty, since it was not disputed that his fingerprint was found at the scene.

The remainder of the alleged shortcomings may be dismissed in a similar manner. The “failure to investigate and present a defense” and to request instructions on the effect of a jury recommendation of mercy do not fall measurably below the standard expected of competent counsel. Although appellant is obviously dissatisfied with the result of the defense that was presented, we will not use the perfect vision of hindsight and label that defense incompetent. It was, under the circumstances, a reasonable strategy.

Defense counsel’s voir dire examination regarding pretrial publicity, racial bias, and imposition of the death penalty was not so lacking as to be considered incompetent. If it was deficient at all, it was not substantial enough to demonstrate a prejudice to appellant so severe that it affected the outcome of the proceedings. The reeord shows that appellant’s guilt was clearly and convincingly demonstrated by more than adequate evidence. Any shortcomings in voir dire were not the conclusive and decisive factors in his conviction.

As the trial court noted in denying appellant’s rule 3.850 motion, a “textbook defense” is not the requirement here. The trial court heard the arguments in the 3.850 hearing, considered the expert testimony presented by both sides, and determined that the representation afforded appellant was adequate. None of the arguments raised convince us that said decision was unsubstantiated or incorrect, and so the trial court’s decision is affirmed.

It is so ordered.

ALDERMAN, C.J., and BOYD, OYER-TON and MCDONALD, JJ., concur.

EHRLICH, J., dissents.


author: EHRLICH, Justice.

text:
    Larry Alan STRICKLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 62359.
    Supreme Court of Florida.
    July 28, 1983.
    Rehearing Denied Sept. 29, 1983.

      Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.
   EHRLICH, Justice.

In King v. State, 390 So.2d 315, 320 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981), aff’d in part and rev’d in part on other grounds, State v. Hegstrom, 401 So.2d 1343 (Fla.1981), we held that attempts to commit a capital felony are sentenced as first-degree felonies and hence carry a maximum sentence of thirty years in the absence of a statutory provision authorizing a life sentence. Stating that there was no such authorizing statute, this Court vacated a life sentence that had been imposed. In Strickland v. State, 415 So.2d 808 (Fla. 1st DCA 1982), the First District Court of Appeal declined to follow King and instead affirmed a trial court ruling sentencing petitioner to life imprisonment for the offense of attempted first-degree murder with a firearm. We have jurisdiction of this cause pursuant to article Y, section 3(b)(3), Florida Constitution, to resolve this conflict. For the reason expressed herein, we recede from King.

In the instant case, an information had been filed alleging that petitioner attempted to murder one Charles Hutto, with premeditation, by shooting him with a shotgun contrary to sections 775.087(2), 777.04 and 782.04, Florida Statutes (1981). After a jury trial, a verdict was returned finding petitioner guilty of attempted first-degree murder with a firearm. Petitioner was sentenced to life imprisonment, with the requirement that he serve three years before being considered for parole.

On appeal to the district court, petitioner argued his life sentence was illegal since the maximum sentence for the offense of attempted first-degree murder was thirty years. As authority, he relied upon King. The district court, instead, affirmed petitioner’s sentence on authority of Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981). In Williams, the Second District Court of Appeal noted that this Court had made an “apparent mistake,” 407 So.2d at 224, in its King opinion by not recognizing the applicability of section 775.087, Florida Statutes (1979). That statute provides that any first-degree felony when committed with a weapon or firearm is reclassified as a life felony unless the use of a weapon or firearm is an essential element of the felony. The correct maximum sentence, then, for attempted' first-degree murder with a firearm, according to the district court, would be life in prison since the use of a weapon or firearm is not an essential element of attempted first-degree murder.

We agree with the position taken in Williams that we erred in deciding this sentencing issue in King. The complete discussion of this point on appeal is quite short:

The appellant [King] also contends that the trial court erred in sentencing him to life imprisonment for the attempted first-degree murder of McDonough. Attempts to commit a capital felony are sentenced as first-degree felonies, which always carry a maximum sentence of thirty years absent a statutory provision authorizing life. There is no such authorizing statute for attempted first-degree murder, thus the sentence of life was improper. The state concedes error, and the appellant must therefore be remanded to the trial judge for resentencing for the offense of attempted first-degree murder.

390 So.2d at 320. We noted that the state conceded error on this issue. By the state’s mistake in conceding error, this Court was deprived of argument on the applicability of section 775.087. That statute was apposite to both King’s and Strickland’s cases. We regret, in addition, that we on our own did not discover the relevance of section 775.087 when we were deciding King. That error was decidedly ours.

We hereby recede from the above-quoted language of King and hold that, pursuant to section 775.087, a first-degree felony shall be reclassified to a life felony if a weapon or firearm is used as long as the use of the weapon or firearm is not an essential element of the charged crime. In the instant case, when we look at the statutory elements of the offense, we find the use of a firearm not to- be an essential element of the crime of attempted first-degree murder. Thus, the life sentence in the present case is correct.

Finally, we note that the First District in Strickland and the Second District in Williams apparently overlooked the, principles laid down by this Court in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We said there that the district courts are without authority to overrule supreme court precedents and are bound to follow the case law set forth by us. We also stated, “[t]his is not to say that the District Courts of Appeal are powerless to seek change; they are free to certify questions of great public interest to this Court for consideration.” 280 So.2d at 434. In the instant case, the proper course that the district court should have followed would have been to reverse petitioner’s life sentence on authority of our decision in King and then to certify to this Court the question of the correctness of King in light of section 775.087. That correct action was not taken.

For the reason expressed above, we approve the decision of the district court.

It is so ordered.

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


author: BOYD, Justice.

text:
    John William BROD and William Bates, Petitioners, v. STATE of Florida, Respondent.
    No. 62582.
    Supreme Court of Florida.
    July 28, 1983.
    Rehearing Denied Sept. 29, 1983.

      Richard L. Jorandby, Public Defender and Anthony Calvello, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioners.
    Jim Smith, Atty. Gen. and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of a decision of the district court of appeal, Brod v. State, 418 So.2d 363 (Fla. 4th DCA 1982). The cited opinion disposed of the separate appeals of both petitioners on a consolidated basis. The court certified the issues passed upon as questions of great public importance. We have jurisdiction. Art. Y, § 3(b)(4), Fla. Const.

Petitioner Bates was given a “split sentence” of three years in prison and twelve years on probation. After this Court’s decision in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), disapproving such dispositions, Bates asked the sentencing court to set aside the probationary period, allowing him unsupervised freedom after his release from prison. The court instead vacated the “split sentence” and imposed a sentence of fifteen years’ imprisonment with credit for time served. On appeal the district court reluctantly affirmed holding in effect that the trial court was free to sentence petitioner to a term of imprisonment no greater than the originally imposed combined term of incarceration and probation.

Petitioner Brod, pursuant to a negotiated plea agreement, was given a sentence of a year and a day incarceration followed by three years and eleven months on probation. After Villery, Brod moved to have his sentence corrected either to impose probation only or one year in jail followed by total freedom. The court responded by imposing a prison term equal to the previously ordered total period of state control and supervision, four years, eleven months and one day with credit for time served. On appeal the district court affirmed.

The four questions certified by the district court include the three questions certified in Adams v. State, 414 So.2d 1079 (Fla. 1st DCA 1982) and Beech v. State, 411 So.2d 1384 (Fla. 1st DCA 1982), and also the fourth question added in Forbert v. State, 415 So.2d 96 (Fla. 4th DCA 1982):

1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the imprisonment and probation originally imposed? If not, what is the maximum sentence?
2. If the sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of Pearce ? [North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)].
3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearce?
4. If the original sentence was imposed pursuant to and as part of a negotiated plea, in resentencing a defendant upon a Villery motion to correct an illegal sentence can the trial court impose a longer sentence of imprisonment than originally imposed without giving the defendant an opportunity to withdraw his negotiated plea?

Brod v. State, 418 So.2d 363, 365 (Fla. 4th DCA 1982).

In Beech v. State, 436 So.2d 82 (Fla.1983), we approved the above-cited Adams and Beech decisions of the first district and held that a prisoner who brings a Vil-lery challenge to an illegal “split sentence” may be sentenced to a term of imprisonment not exceeding the combined terms of incarceration and probation originally imposed. The reasoning of our Beech opinion applies here. We therefore approve the holdings of the fourth district to the same effect in the present case. However, in Forbert v. State, 437 So.2d 1079 (Fla.1983), we addressed the fourth certified question and held that where the original “split sentence” was imposed as part of a plea agreement and on resentencing the prisoner receives a term of imprisonment beyond the limits of incarceration contemplated by the plea agreement, the defendant should have the opportunity to withdraw his plea of guilty. In the present case there was no error since neither petitioner moved to withdraw his plea. The district court certified the fourth question, however, apparently out of recognition that it is still open to the petitioners to again move in the trial court for relief under Florida Rule of Criminal Procedure 3.850. See Peak v. State, 399 So.2d 1043 (Fla. 5th DCA 1981).

Accordingly, the decision of the district court of appeal is affirmed without prejudice to the right of the petitioners to seek to withdraw their pleas by way of motions to vacate.

It is so ordered.

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

EHRLICH, J., concurs in result only.

McDONALD, J., dissents.


author: LEHAN, Judge.

text:
    Willis RHODES and Mary Lee Rhodes, his wife, Appellants, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 82-2387.
    District Court of Appeal of Florida, Second District.
    July 1, 1983.
    Rehearing Denied Sept. 12, 1983.
    James E. Deakyne, Jr., and Robert F. Nunez, St. Petersburg, for appellants.
    Michael A. Tonelli of Barr, Murman & Tonelli, P.A., Tampa, for appellee.
   LEHAN, Judge.

Plaintiffs appeal a judgment entered on a jury verdict for defendant. Plaintiffs argue that a separate rejection of uninsured motorist coverage pursuant to section 627.-727, Florida Statutes, is required when a vehicle is added to an automobile liability policy that contemplates the addition of vehicles, even if the insured previously rejected uninsured motorist coverage when the policy is issued. We disagree and affirm the judgment on the authority of Maxwell v. United States Fidelity & Guaranty Co., 399 So.2d 1051 (Fla. 1st DCA 1981), which is factually similar to the instant case and which contains what we believe to be sound reasoning. See also Cote v. American Fire & Casualty Co., 433 So.2d 590 (Fla. 2d DCA 1983).

Maxwell placed emphasis upon the fact that the policy in that case was called a “fleet policy.” The policy in the present case was not called a “fleet policy,” but did cover approximately 30 vehicles. Under the facts of this case we believe the absence of a “fleet policy” label on the policy to be irrelevant. See Sentry Insurance A Mutual Co. v. McGowan, 425 So.2d 98 (Fla. 5th DCA 1983).

Plaintiffs also contend that the insured’s rejection of uninsured motorist coverage was not a knowing and informed rejection as Florida courts have interpreted section 627.727 to require. However, under the facts of this case we believe the question was properly submitted to the jury. See Kimbrell v. Great American Insurance Co., 420 So.2d 1086 (Fla.1982).

We have considered the other contentions of plaintiffs and find no error.

AFFIRMED.

OTT, C.J., and GRIMES, J., concur.


text:
    James Lee ROYSDON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1905.
    District Court of Appeal of Florida, Second District.
    July 8, 1983.
    Rehearing Denied Sept. 12, 1983.
    Jerry Hill, Public Defender, Bartow, and Rick Dalan, Asst. Public Defender, Clear-water, for appellant.
    James Lee Roysdon, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

James Roysdon appeals his judgment and sentence for second degree murder. While we find no merit in appellant’s numerous contentions, we are disturbed by the trial court’s identification of appellant’s crime as “MURDER IN THE FIRST DEGREE, [section] 782.04(la) [sic],” a “First” degree felony, “(MURDER IN THE SECOND DEGREE, as included).” Because we find this description somewhat confusing, we remand appellant’s judgment for correction to reflect his adjudication for murder in the second degree under section 782.04(2), Florida Statutes (1981). Otherwise, we affirm appellant’s conviction and sentence in all respects.

REMANDED for proceedings consistent with this opinion.

OTT, C.J., and BOARDMAN and DAN-AHY, JJ., concur.


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    AERO INTERNATIONAL CORPORATION, Appellant/Cross-Appellee, v. FLORIDA NATIONAL BANK OF MIAMI, Appellee/Cross-Appellant.
    Nos. 81-1925, 81-1930.
    District Court of Appeal of Florida, Third District.
    July 19, 1983.
    Rehearing Denied Sept. 28, 1983.

      Bedell, Bedell, Dittmar & Zehmer and C. Harris Dittmar, Jacksonville, for appellant/cross-appellee.
    Paige & Catlin, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellee/cross-appel-lant.
    Before SCHWARTZ, C.J., HENDRY, J., and OWEN, WILLIAM C., Jr., Associate Judge.
   OWEN, WILLIAM C., Jr., Associate Judge.

The principal issue in this case (in which plaintiff-appellant had alleged that the defendant-appellee had converted certain funds entrusted to it under an escrow agreement) is whether the trial court erred in setting aside a jury award of punitive damages on the finding that “there was no support in the competent evidence of record that the Bank’s conduct in this case was so malicious or outrageous that its retention of the funds would warrant or justify an award for punitive damages.” We conclude that the court did so err.

To set the stage for this suit we need to mention briefly prior litigation in which appellant, Aero International Corporation (“International”), had been involved.

At an earlier date International had entered into a contract with the Republic of Colombia for the repair and overhaul of two of its C-130 military transport airplanes, which repair work International in turn had subcontracted to Aero Corporation (“Aero”). International and Aero became involved in litigation over the subcontract. That suit was settled. The settlement included a requirement that International place in escrow with appellee, Florida National Bank of Miami (“Bank”) $650,000.00 of the funds advanced by the Republic of Colombia under its contract with International. The escrow agreement provided, in substance, that the funds were to be used to cover the costs of such repairs as might be found necessary after a complete inspection of the two airplanes, with any unused portion to be paid to the Republic of Colombia upon the order of and pursuant to directions from International. A memorandum addendum to the escrow agreement provided, among other things, that interest earned on the escrow account accrued to the benefit of International and was to be deposited quarterly into its checking account with the Bank.

International deposited the required funds in escrow with the Bank. However, before the first quarterly interest payment was due, the Republic of Colombia filed suit against International and obtained an order enjoining withdrawal of any of the es-crowed funds. At the same time, counsel for Republic of Colombia notified the Bank that should it disburse any funds in furtherance of the escrow agreement it would be held liable to the Republic of Colombia.

When the first quarterly interest payment became due, the Bank, in order to protect itself from any liability, and relying upon (1) a provision of the escrow agreement permitting it to retain escrowed funds pending resolution of any conflict over the funds, (2) its understanding of the breadth and intent of the injunctive order, and (3) advice of its own counsel, refused to credit to International’s checking account the earned interest until such time as the conflicting claims were resolved. The Bank maintained its position despite International’s insistence that neither the exculpatory provision of the escrow agreement nor the injunctive order applied to the earned interest, and despite International’s repeated admonitions to the Bank that the latter’s actions were in violation of its contract and were causing International serious financial hardship in its survival for existence during the ongoing litigation.

Nearly two years later, with Republic of Colombia’s suit still pending and with the Bank unrelenting in its position, International brought this action for conversion. Upon trial the jury returned its verdict awarding both compensatory and punitive damages. Judgment was entered on the verdict. However, on post-trial motions, the judgment was vacated, a directed verdict was entered for the Bank on the punitive damage award, and a remittitur or new trial ordered on the compensatory damage award. International accepted the remitti-tur but has appealed the order taking away punitive damages, and the Bank has cross appealed the denial of its motion for directed verdict on liability and its alternative motion for a new trial on damages. As stated at the outset, we view the primary issue as being whether the trial court erred in vacating the award of punitive damages.

International first contends that the order is legally insufficient because the bases for an award of punitive damages are not limited to conduct that is “malicious or outrageous” (referring to the language appearing in the court’s order), but also include willful, tortious acts done with total and wanton disregard for the rights of or effect on the plaintiff. It is certainly correct that “a legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression,” Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978). However, we do not deem the trial court’s order facially insufficient because of its failure to recite the full litany of each and every basis of punitive damages when it is apparent to us that the court used the words “malicious or outrageous” in the generic sense.

International next argues the sufficiency of the record evidence to justify the jury verdict. Putting aside the ample evidence upon which the jury, had it been so inclined, could have returned a verdict in favor of the Bank, we find in the record competent evidence from which the jury reasonably could have found that the Bank (1) occupied a fiduciary relationship with International, (2) held in its possession specific, identifiable funds belonging to International as to which it had clear and specific instructions to place in International’s checking account with the Bank, (3) intentionally and willfully refused to follow those instructions, despite demands from International that it do so, (4) knew that the preliminary injunction applied only to the principal and not to the, accrued interest, (5) failed to disclose to its own attorneys the addendum to the escrow agreement pertaining to disposition of the accrued interest, and (6) acted solely to protect its own interest and with willful and wanton disregard for the rights of, and the affect upon, International. Since a legal basis for punitive damages exists where torts are committed in an outrageous manner or with wantonness or oppression, Wackenhut Corp. v. Canty, supra, the trial court was correct in permitting the issue of punitive damages to go to the jury and erred in deciding, post-trial, that the evidence of malice or outrageousness would not justify an award of punitive damages.

The comprehensive and well written brief submitted on behalf of the Bank contains several arguments in support of the trial court order which merit comment.

The Bank first argues that its conduct was, at most, a breach of contract, for which punitive damages are not recoverable irrespective of the motive of defendant, unless the conduct also amounts to an independent tort, citing Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976), and numerous other cases in support of that apodictie principle. The record makes clear, however, that the case was tried and presented to the jury on the theory that the Bank’s conduct amounted to the tort of conversion, as to which there was both competent evidence and proper instruction.

The Bank next argues that its conduct did not constitute the independent tort of conversion because (a) the Bank’s dominion over the property was not inconsistent with International’s ownership, citing Mabie v. Tutan, 245 So.2d 872 (Fla. 3d DCA 1971), (b) the Bank did not attempt to appropriate an ownership interest in the property, citing King v. Saucier, 356 So.2d 930 (Fla. 2d DCA 1978), (c) the money was not identifiable but was merely an obligation of the Bank to pay, and thus could not be the subject of conversion, citing Belford Trucking Co. v. Zagar, 243 So.2d 646 (Fla. 4th DCA 1970), and (d) even if the Bank’s conduct did constitute a conversion it was not committed with the requisite degree of bad faith or reckless disregard for the rights of others, citing to record evidence attempting to prove that the Bank was at all time mindful of the rights of International. Appellant, quite correctly we think, has countered these arguments by pointing out (a) conversion may consist of the wrongful deprivation of a person of property to the possession of which he is entitled, citing Star Fruit Company v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858 (1948) and Mabie v. Tutan, supra, (b) the accrued interest was a specific sum of money which the Bank received in a fiduciary capacity under specific instructions and the refusal to deliver the money according to the instructions would constitute conversion, citing All Cargo Transport, Inc. v. Florida East Coast Railway, 355 So.2d 178 (Fla. 3d DCA 1978), and Adams, George, Lee, Schulte & Ward, P.A. v. Westinghouse Electric Corp., 597 F.2d 570 (5th Cir.1979), (c) the record contains other evidence (to which we have earlier referred) tending to prove that the Bank did act with willful and wanton disregard of the rights of International, and (d) in any event, the trial court’s post-trial order vacating the award of punitive damages was not predicated upon the insufficiency of the evidence to establish the independent tort of conversion (and in fact the court had found the evidence to be sufficient for that purpose in denying the Bank’s motion for directed verdict on that ground), but was founded solely upon a determination of the absence of sufficient evidence of malice and outra-geousness, a point separately addressed.

The Bank, on its cross appeal, argues (1) the trial court erred in denying its motion for new trial on compensatory damages conditioned upon International accepting the remittitur and (2) should this court reverse the trial court in vacating the award of punitive damages, the Bank should be entitled to a new trial on punitive damages. There was no error in denying the Bank’s motion for new trial conditioned upon International accepting the remittitur. Nor is there any need to again submit to the jury the determination of the amount of punitive damages where the amount awarded was not disproportionate to the Bank’s net worth and the only purpose to be served would be to have another jury set the amount. The trial court quite wisely permitted the issue to be decided by the jury so that, should the post-trial vacating of the verdict be reversed on appeal, the verdict simply may be reinstated and thus the judicial effort invested in the trial not be lost.

The judgment is reversed and this cause remanded to the trial court with instructions that (a) the verdict for punitive damages be reinstated, and (b) judgment for International be entered for compensatory damages on the remittitur and for punitive damages on the verdict.

HENDRY, J., dissents.

      . The record is replete with competent evidence from which the jury could have found that the Bank (1) did only that which the escrow agreement permitted, (2) was precluded from doing otherwise by the preliminary injunction entered in the Republic of Colombia’s suit, (3) was acting in good faith on the advice of counsel, (4) occupied only a debtor-creditor relationship with International rather than that of a fiduciary, (5) did not act with malice or outrageousness or reckless disregard for the rights of International, or (6) at most, did nothing more than wilfully and maliciously breach its contract with International. However, since the jury chose to render its verdict in favor of International and award both compensatory and punitive damages, our task is to discern whether the record also contains competent evidence upon which the jury could have based such awards.


text:
    FLORIDA COAST BANK OF POMPANO BEACH, individually and as trustee, Appellant, v. William McWhorter MAYES and Robert Holder Mayes, Appellees.
    No. 81-1997.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Sept. 28, 1983.

      Kenneth R. Mikos of Friedrich, Blackwell, Mikos & Ridley, P.A., Fort Lauder-dale, for appellant.
    Thomas A. Groendyke of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   OWEN, WILLIAM C., Jr., Associate Judge.

Appellant (trustee) was sued by appellee (income beneficiaries of the trust) for accounting, removal and surcharge. The accounting aspects of the case were tried before a special master whose report (after certain amendments not material to this case) was approved by the court in the final judgment here appealed. Although the final judgment did not order removal of the trustee, it did order the trustee to alter certain of its accounting practices, to pay to the appellees certain accumulated trust income and attorney’s fees, and to reimburse the trust certain other sums. Appellant raises six points on this appeal, all of which we find to be without merit except as to the award of attorney’s fees to the appellees, which portion of the judgment is reversed.

By an order granting partial summary judgment entered at an earlier stage in the proceedings, the court had determined that the trustee was improperly accumulating income to which the income beneficiaries were entitled. The accounting was directed primarily toward determining the amount of the accumulated income. Appellant first questions the manner in which the special master calculated this amount, particularly the disallowance of certain expenses which the trustee had charged against' income. These expenses are in two categories which we discuss separately.

In the first category were expenses directly attributable to the maintenance and upkeep of the real property which was a trust asset. Appellant points to the provision of the Trust Agreement which granted to the trustee absolute discretion to apportion expenses as between principal and income, and argues that under Section 738.02(l)(a), Florida Statutes, such provision in the trust instrument governs over any contrary provisions of Chapter 738, Florida Statutes. The premise is sound. The fallacy is that the trustee failed to exercise discretion. The special master found that the trustee indiscriminately charged expenses to either principal or income on the sole criterion of which account contained cash then available to pay for such expenditure, a method which could not be justified as a reasonable exercise of discretion by the trustee. Furthermore, all or substantially all of these expenses had previously been shown on periodic accountings as a charge against principal, and the special master found that only after the entry of the partial summary judgment had the trustee attempted to reallocate such expenses as a charge against income in an effort to reduce the total of accumulated income to be turned over to appellee.

In the second category (by far the larger) was a reserve for expenses, including depreciation, which by a specific provision of the trust instrument, the trustee was authorized (but not required) to set up. The special master disallowed the reserve for depreciation as a proper charge against income because such was not specifically required by the trust instrument, an obligatory prerequisite under Section 738.13(l)(b), Florida Statutes. Appellant contends, of course, that under Section 738.02(l)(a) the specific language of the trust instrument (permitting a reserve for depreciation to be set up and charged against income in the discretion of the trustee) must control. In other words, appellant would have us construe Section 738.13(l)(b), Florida Statutes, as though it read, “Only when specifically required by the instrument, or when permitted in the discretion of the trustee ...,” a construction which would render meaningless the initial clause of the sentence. We think the special master (and the trial court by approving the master’s report) correctly concluded that a reserve for depreciation on property subject to depreciation under accounting principles could be charged against income only when specifically required by the trust instrument.

Appellees were awarded attorney’s fees against the trustee in its individual capacity. Since there did not exist any contractual provision or statutory authority for such an award, the award of attorney’s fees must be reversed. Campbell v. Maze, 339 So.2d 202 (Fla.1976); Rivera v. Deauville Hotel Employers Service Corp., 277 So.2d 265 (Fla.1973).

Appellants remaining points are without merit and do not require discussion.

That portion of the final judgment awarding to appellees attorney’s fees against the trustee individually is reversed. In all other respects, the final judgment is affirmed.

REVERSED in part, AFFIRMED in part.

DELL and WALDEN, JJ., concur.

      . The trustee failed to comply with the provisions of the final judgment and it was held in contempt. That order is the subject of a separate appeal. Florida Coast Bank of Pompano Beach v. Mayes, 433 So.2d 1033 (Fla. 4th DCA 1983).

      . 738.13 Charges against income and principal.—
      (1) The following charges shall be made against income:

        (b) Only when specifically required by the instrument, a reasonable allowance for depreciation on property subject to depreciation under accounting principles ....


text:
    BONDED INVESTMENT AND REALTY COMPANY, Appellant, v. Gregory WAKSMAN and Maria Waksman, his wife, Appellees.
    No. 82-1939.
    District Court of Appeal of Florida, Second District.
    July 22, 1983.
    Rehearing Denied Sept. 13, 1983.

      Charles F. Clark and Ted R. Manry III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Michael A. Linsky of Linsky & Reiber, Tampa, for appellees.
   LEHAN, Judge.

Plaintiff, Bonded Investment and Realty Company, appeals from a final judgment denying its request for specific performance of an option to repurchase realty. Bonded also appeals from the portion of the judgment awarding attorney’s fees and certain costs to the defendants, Gregory and Maria Waksman. We affirm the denial of specific performance but reverse the award of attorney’s fees and an expert witness fee.

On February 16, 1978, Joy Vogel (not a party to this appeal) entered into a contract to purchase Lot 8, Block A, Pelican Island Unit No. 1 from Bonded, the developer. Paragraph 8 of the contract provided that Bonded could repurchase the lot for the original purchase price if Vogel failed to commence construction of a house on the lot within three years of the contract date. The purchase contract was not recorded in the public records. The warranty deed for the property issued by Bonded to Vogel was recorded in the public records but made no reference to the repurchase option or to the purchase contract between Bonded and Vo-gel.

On June 24, 1980, the Waksmans entered into a contract to purchase the lot from Vogel. That contract stated: “Buyer has been informed that construction must be commenced by May 1,1981.” The warranty deed from Vogel to the Waksmans contained similar language.

On June 16, 1981, a representative of Bonded wrote the Waksmans a letter purporting to exercise the right to repurchase the property for the original purchase price. There was evidence that at this point there had been no actual commencement of construction or delivery of materials to the property although the Waksmans had cleared the property of debris and had had various plans and sketches prepared by an architect and a residential designer.

When the Waksmans refused to allow Bonded to repurchase, Bonded filed this suit seeking specific performance. The Waks-mans counterclaimed, alleging slander of title because of the filing of the lawsuit by Bonded.

We affirm the trial court’s denial of Bonded’s request for specific performance. Although the evidence shows that the Waksmans were aware they must begin construction within a certain time, the record in this case is devoid of any showing by Bonded that the Waksmans knew about the repurchase option provision in Vogel’s contract or knew that their failure to build could cause them to lose the property.

Bonded argues that the Waksmans had a duty to inquire further about the requirement that they begin construction, citing Sapp v. Warner, 105 Fla. 245, 141 So. 124 (1932), and that if the Waksmans had inquired they would have learned about the repurchase option. We do not find that there was such a duty to inquire. No document in the Waksmans’ chain of title contained the repurchase option provision or any information beyond the requirement to begin construction contained in the Waks-mans’ own deed. There was shown to be no notice to the Waksmans of anything which would distinguish this obligation from any other covenant or restriction which could not reasonably be said to have put a purchaser on notice of a potential loss of his property through repurchase if he did not comply. Therefore, the trial court was correct in denying specific performance of the repurchase option.

But we believe that the trial court was incorrect in awarding attorney’s fees to the Waksmans as the prevailing parties. The general principle is that attorney’s fees are not taxable as costs unless specifically provided by contract or statute. Codomo v. Emanuel, 91 So.2d 653 (Fla.1956). No contract or statute relevant to this case contains such a provision.

Attorney’s fees may be a proper element of special damages in a slander of title action. Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973). The Waks-mans’ claim for slander of title originally was based solely on the fact that Bonded brought a legal action to enforce the repurchase option. However, the mere bringing of a legal action on a claim relating to land does not constitute slander of title. See Sailboat Key, Inc. v. Gardner, 378 So.2d 47 (Fla. 3d DCA 1980). The Waksmans later claimed that two documents prepared by Bonded—an affidavit recorded in the public records and a letter sent to Vogel and the Waksmans—constituted slander of title. We disagree. The evidence does not show that the letter was ever sent to any third party who had no interest in the matter. See Lewis v. Evans, 406 So.2d 489 (Fla. 2d DCA 1981). The affidavit at the time it was recorded (before the deed to the Waks-mans) appeared as a good faith statement of belief of a legal right. See Allington Towers Condominium North, Inc. v. Allington Towers North, Inc., 415 So.2d 118 (Fla. 4th DCA 1982).

The trial court also awarded the Waksmans costs for an expert witness fee. However, that witness’ testimony was only factual as to what steps had been taken in preparation for construction and did not constitute an expert opinion. Therefore such costs were improperly awarded.

The award of attorney’s fees and the expert witness fee to the Waksmans is REVERSED. The remainder of the final judgment is AFFIRMED.

HOBSON, A.C.J., and BOARDMAN, J., concur.


author: PADGETT, J. ROGERS, Associate Judge.

text:
    Karl Virgil McKINSTRY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1168.
    District Court of Appeal of Florida, Second District.
    July 22, 1983.
    Rehearing Denied Sept. 12, 1983.
   PADGETT, J. ROGERS, Associate Judge.

This appeal is from the summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised five points in his motion. In point 2, he alleged that his conviction and sentence for the lesser included offense of possession of illegal drugs as well as his conviction and sentence for the greater offense of trafficking in illegal drugs violates the double jeopardy clause. In point 4, appellant asserted he was denied effective assistance of counsel because of defense counsel’s failure to correctly advise him of the lesser included offenses of trafficking in illegal drugs during plea negotiations. These allegations, if true, might entitle appellant to relief. The trial court, however, failed to conduct an evidentiary hearing or to attach portions of the record which conclusively refute appellant’s position concerning these two points.

Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the second and fourth allegations and attach to its order those portions of the record which conclusively show that appellant is entitled to no relief, or hold an evidentiary hearing and then rule on the allegations raised in points 2 and 4 of appellant’s motion. See Fla.R. Crim.P. 3.850. See also Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).

To obtain further review in this cause, the party aggrieved by the trial court’s subsequent ruling must appeal anew.

The trial court was correct in denying appellant’s motion as to the other points raised therein. Affirmed in part, reversed in part, and remanded with instructions.

HOBSON, A.C.J., and RYDER, J., concur.