author: NIMMONS, Judge.

text:
    Aaron James AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. AW-423.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.

      Michael Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Four days prior to trial, defendant’s attorney served upon the prosecuting attorney a notice of intent to claim alibi and listed three witnesses in support thereof. The state filed a pretrial motion to exclude the alibi witnesses due to the late notice. Prior to jury selection, the court heard the state’s motion and granted it, thus precluding the defense from calling such witnesses. The record in this case does not support the trial court’s exclusion of the witnesses. We must, therefore, reverse.

In excluding the defense witnesses, the trial court expressly relied upon the defendant’s failure to comply with the time requirements of Fla.R.Cr.P. 3.200. The court’s ruling was not based upon any finding of prejudice to the state. In fact, the court stated, “I am not going to make any determination or finding on prejudice.” At the hearing on the state’s motion, defense counsel explained he had just been informed of these witnesses only a few days earlier by the defendant and the defendant’s brother who had encountered difficulty in running down the witnesses, one of whom resided in Homerville, Georgia. Counsel explained that he then immediately furnished notice to the prosecutor of these witnesses. Defense counsel also advised the court that he would move for a continuance of the trial and waive speedy trial if the prosecutor felt that the state would be prejudiced by proceeding to trial with these new witnesses.

The prosecutor informed the court that the state would not oppose a continuance because of the prosecutor’s stated concern over the validity of an order excluding the defense witnesses. Nevertheless, the judge, expressing the view that there had been sufficient time for the defendant to track down his witnesses and give timely notice, and finding that the ends of justice required that the trial commence, ordered the trial to proceed without such defense witnesses being permitted to testify. The judge mentioned, as a factor in his ruling, that the victim, who was the sole eyewitness to the alleged robbery and attempted murder, was 57 years of age. There was no further explanation as to why that was considered a factor by the trial court.

After the court announced its ruling, the prosecutor, apparently concerned over the state of the record at that point, attempted to articulate the prejudice which the state would sustain if such defense witnesses were allowed to testify. She stated that the late notice would preclude the state from an opportunity to take depositions of the witnesses and to attempt to rebut the alibi. That is when the court stated that it was not going to make any determination or finding of prejudice.

In a system in which the search for truth is the principal goal, the severe sanction of witness exclusion for failure to timely comply with the rules of procedure should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts and the testimony is not cumulative. We are not ‘unsympathetic with the plight of the trial judge who must deal with the all-too-frequent eleventh hour revelations of new evidence and witnesses and the inevitable last minute objections and motions in limine based upon procedural rules violations. The trial judge must be accorded considerable latitude in handling these situations as the exigencies of each case may suggest.

We are unable, however, to affirm the severe sanction of witness exclusion in this case because, even assuming the state would have been prejudiced by the use of the subject witnesses (although, as earlier noted, the trial judge declined to make any finding of prejudice), no effort was made to determine whether reasonable means could have been employed to overcome the prejudice without resorting to the total exclusion of the witnesses. For example, it is not uncommon in these kinds of situations for the court to provide for an appropriate delay or recess to afford the “aggrieved” side the opportunity to depose the new witnesses. It may well be that the state’s inquiry of such witnesses would have demonstrated that there was nothing which the state could or would have done differently had it known earlier of such witnesses, thus allaying concern over the late notification. Similarly, it might be that the deposition testimony elicited by the prosecutor from such witness during the recess or delay in proceedings would suggest the need for further minimal investigation in order to avoid or minimize any prejudice of the late disclosure in which case such interests might be adequately accommodated by adjusting the court’s trial calendar by, for example, changing the order of trials for the week (or trial period).

Inasmuch as we do not have the benefit of the trial court’s determination of prejudice and absent any effort to employ reasonable means short of witness exclusion to overcome any such prejudice, we conclude that the trial court erred in ordering the exclusion of the subject witnesses. See Briseno v. State, 449 So.2d 312 (Fla. 5th DCA 1984); Patterson v. State, 419 So.2d 1120 (Fla. 4th DCA 1982); Slaughter v. State, 330 So.2d 156 (Fla. 4th DCA 1976); Williams v. State, 264 So.2d 106 (Fla. 4th DCA 1972); compare Lail v. State, 314 So.2d 234 (Fla. 4th DCA 1975); and Chester v. State, 276 So.2d 76 (Fla. 2nd DCA 1973).

In light of the necessity of reversal for a new trial, we need address only one of the remaining three issues raised by the appellant. He contends that the trial court erroneously allowed Robert Mincey to be called as a court witness during the state’s rebuttal and allowed the state to elicit from Mincey a prior inconsistent statement.

Mincey had earlier been called as a defense witness to refute the testimony of state’s witness Ricky Graves who had testified that he was in the company of the defendant the day following the subject convenience store robbery and heard the defendant make certain admissions implicating himself in the crime. Mincey, as a defense witness, testified that he was also in the company of the defendant and Graves and did not hear the defendant make any such admissions.

When the defense rested, the prosecutor then requested that Mincey be called as a court witness on rebuttal by the state. The purpose for calling Mincey was to rebut the defendant’s testimony that he was in Homerville, Georgia, when the crime was committed in Jacksonville on May 16, the defendant having testified that he had left Jacksonville to go to Homerville sometime between May 8 and May 10 and was still in Georgia on May 16. The prosecutor explained to the court that, a few days prior to the trial, Mincey had told an assistant state attorney and an investigator that Mincey and the defendant were together at Jacksonville Beach on May 15. The prosecutor further explained that Mincey had recanted that story and would now testify that he did not recall just when he was with the defendant at Jacksonville Beach.

With the jury absent, the court heard a proffer of Mincey’s testimony. He testified that he did not recall when he was at Jacksonville Beach with the defendant. However, he admitted having told the assistant, state attorney and investigator a few days earlier that he and the defendant were together at Jacksonville Beach on May 15. Over the defendant’s objections, the trial judge ruled that Mincey could be called as a court witness. He was and testified essentially the same as he did on proffer.

The court ruled that Mincey’s demeanor while testifying (characterized by the trial judge as “smirking” or “grinning” at the attorneys) and his refusal to testify consistent with his previous statement justified the court’s calling Mincey as a court witness and allowing the state to elicit Min-cey’s prior statement concerning the defendant’s whereabouts on May 15. We hold that this was error.

It is true that hostility of a witness towards the parties may suffice as a ground for the trial court’s exercise of its discretion in calling a witness as a court witness. See Ehrhardt, Florida Evidence § 615.1 (2d Ed.1984). However, the sole purpose for Mincey’s being called was to elicit his prior unsworn statement for the purpose of proving the truth of such prior statement. Mincey’s hostility does not furnish the state grounds for doing what the court permitted.

Under the Florida Evidence Code, there are limited circumstances under which a prior inconsistent statement may be admissible as substantive evidence, i.e. for purposes of establishing the truth of the content of such prior statement. Under Section 90.801(2)(a), Florida Statutes (1983), a prior inconsistent statement may be received as substantive evidence if the person who gave the statement testifies and is subject to cross-examination concerning the statement and such statement had been given under oath in a proceeding in which he could be subjected to the penalty of perjury. Mincey’s prior statement does not qualify because it was not made under oath.

Nor would the state have been justified in eliciting Mincey’s prior inconsistent statement under Section 90.608, Florida Statutes, which allows a party calling a witness, who proves adverse, to introduce a prior inconsistent statement. Of course, the purpose for which the statement would be elicited would be only for impeachment purposes. But even there, the witness must be shown to be adverse. The fact that a witness may be hostile or unwilling does not mean that he is adverse. See Ehrhardt, Florida Evidence § 608.2, p. 299 (2d Ed.1984). In order to be regarded as adverse under this section, the witness must give testimony prejudicial to the cause of the party calling him. The fact that he simply fails to give the testimony expected of him and that the testimony was not as beneficial as a prior statement is not sufficient. Ibid. Mincey’s testimony that he did not recall whether he and the defendant were together at Jacksonville Beach on May 15 certainly cannot be regarded as prejudicial to the state under the above well-recognized criteria for adverseness. See Johnson v. State, 178 So.2d 724, 728 (Fla. 2nd DCA 1965); Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (1945); and Tipton v. State, 402 So.2d 479 (Fla. 1st DCA 1981) (Smith, R., specially concurring); compare McNeil v. State, 433 So.2d 1294 (Fla. 1st DCA 1983) (testimony of witness exculpating defendant was prejudicial to state and witness was therefore adverse — thus, prior unsworn statement was properly admitted for impeachment purposes under Section 90.608 but inadmissible as substantive evidence under Section 90.801(2)(a)); and Mazzara v. State, 437 So.2d 716 (Fla. 1st DCA 1983) (prior statement not admissible under Section 90.-801(2)(a) but admissible under Section 90.608(2)).

Under the circumstances of this case, it was impermissible to use the expedient of calling Mincey as a court witness under Section 90.615 for the purpose of eliciting his prior inconsistent statement either for impeachment purposes or as substantive evidence. To conclude otherwise would permit indirectly that which may not be done directly. See Perry v. State, 356 So.2d 342, 344 (Fla. 1st DCA 1978). Since we reverse for a new trial on other grounds as previously discussed, we do not decide whether the erroneous admission of Mincey’s prior statement would, by itself, require reversal.

Reversed and Remanded for new trial.

JOANOS and WIGGINTON, JJ., concur.

      . The defendant was incarcerated, as he had been throughout the pendency of the case.

      . Contrary to the state’s assertion on appeal that the defendant failed to preserve this issue in the lower court, the nature of the testimony of the subject witnesses was adequately established.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    Lee Albert FEDD, Appellant, v. STATE of Florida, Appellee.
    No. AY-241.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1984.
    J. Craig Williams, Williams & Stapp, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

This is an appeal from a conviction on charges of burglary with a firearm, armed robbery, and attempted murder. Appellant raises five points for review, only one of which has merit. We reverse for new trial on point one, and affirm as to the other points raised in' this appeal.

In his first point on appeal, appellant alleges the trial court erred in excluding the testimony of his alibi witnesses. The record reflects that in its statement of particulars, the state demanded written notice of any alibi defense that might be asserted at trial.

Approximately three months before trial, the defense filed reciprocal discovery, listing the names and witnesses at trial. One month after receipt of the names of defense witnesses, the state was granted a continuance on the ground that it had been unable to depose the defense witnesses. Nine days later, the defense filed a supplemental discovery response listing names and addresses of two additional defense witnesses.

Despite the continuance, the state did not depose the defense witnesses. During the course of the trial the prosecutor determined that the defense witnesses might be alibi witnesses. Since the defense had not filed a written notice of alibi, the prosecutor objected to the admission of testimony of these witnesses. The trial court accepted the defense testimony on proffer, and then ruled that although defense counsel had inadvertently violated the rule requiring notice to the state of intent to claim an alibi defense, no testimony which could establish an alibi defense would be admitted.

Florida Rule of Criminal Procedure 3.200 provides in part that a criminal defendant “who intends to offer evidence of an alibi in his defense shall ... file and serve ... a notice in writing” upon the written demand of the prosecuting attorney. In the event such alibi notice is not served, “the court may exclude evidence offered by such defendant for the purpose of providing an alibi, except the testimony of the defendant himself.” A similar sanction may be imposed upon the prosecution for failure to file or serve a list of witnesses on the defendant. Exclusion is not mandatory — “[f]or good cause shown the court may waive the requirements of this rule.” The rule was not intended for suppression of evidence. A trial is a quest for truth, and “[i]n a system in which the search for truth is the principal goal, the severe sanction of witness exclusion for failure to timely comply with the rules of procedure should be a last resort and reserved for extreme or aggravated circumstances.” Austin v. State, 461 So.2d 1380 (Fla. 1st DCA 1984). See also: Johnson v. State, 461 So.2d 1385 (Fla. 1st DCA 1984). A trial judge must do more than simply ascertain that a discovery rule has been violated. The inquiry must involve a determination of whether the violation resulted in substantial prejudice to the opposing party. A failure to conduct such an inquiry constitutes error. Bradford v. State, 278 So.2d 624 (Fla.1973); Richardson v. State, 246 So.2d 771 (Fla.1971).

This record demonstrates that the trial court excluded the testimony of appellant’s witnesses solely because defense counsel had violated the notice of alibi rule. The trial court did not inquire into the possible prejudice to the state if the witnesses were permitted to testify, nor did the trial court explore reasonable alternatives to the drastic remedy of exclusion, in an effort to mitigate any possible prejudice.

We adopt the reasoning of the Fifth District in Briseno v. State, 449 So.2d 312 (Fla. 5th DCA 1984), on this issue. In Briseno, as in this case, the trial court excluded the testimony of an alibi witness who had been listed as a witness for the defense. Since the state had not been notified of alibi pursuant to Rule 3.200, the trial court in Briseno, like the trial court here, excluded the testimony of the alibi witness because of the rule violation. The Fifth District reversed, holding that “the court’s inquiry should have considered whether the discovery violation surprised the state in preparing for trial, and if so, whether reasonable means could have been employed to overcome such disadvantage without resorting to the drastic measure of excluding evidence.” Id., 313.

The convictions are reversed on appellant’s point one and the case is remanded for a new trial.

WIGGINTON and NIMMONS, JJ„ concur.

      . Fla.R.Crim.P. 3.200.


text:
    Johnny Morgan JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AX-160.
    District Court of Appeal of Florida, First District.
    Dec. 26, 1984.
    Rehearing Denied Jan. 30, 1985.

      Tyrie A; Boyer, Boyer, Tanzler & Boyer, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

In this appeal'from a conviction of two counts of aggravated battery, the defendant contends, among other things, that the trial court erred in allowing the state to present, on rebuttal, evidence of an incriminating statement of the defendant, Johnny Morgan Johnson, which statement the state had not, prior to trial, disclosed to the defense in response to the defendant’s demand for discovery. We affirm.

The subject knifings occurred at, of all. places, a funeral home where a deceased relative of the defendant was lying in repose. Certain members of the Mitchell family, including the two alleged victims of the knifings, arrived at the funeral home. Hostile feelings had apparently existed between the Johnsons and Mitchells, both gypsy families, because of their engagement in competing businesses of fortune telling and palm reading. A fight broke out between a Johnson relative and one of the Mitchells. In the ensuing melee, Miller Mitchell, Jr., and Steve Mitchell were stabbed by, according to them and other Mitchell family members, the defendant. On the other hand, the defendant and several other members of the Johnson family testified that the Mitchells started the fight and that the defendant did not stab the Mitchell brothers.

Jacksonville police officer Wilmoth, the first of several police officers at the scene, observed mass confusion upon his arrival. He testified that he did not see the defendant in the crowd of people. The defendant was not arrested until about ten days later after Detective Eason, the lead detective in the ease, secured an arrest warrant.

Early in the presentation of the case for the defense, defense counsel brought to the court’s attention the fact that counsel had-just been furnished with the state’s additional response to demand for discovery advising the defense that the defendant had made a statement to Officer Britt admitting that he had stabbed Miller Mitchell, Jr. It seems that Britt was one of the back-up officers who reported to the scene. He was subpoenaed by the defense on December 13 to appear as a witness at the trial on December 14. His name had been included in the defense’s second supplemental witness list filed on December 9. Britt’s name had also been included in the state’s August 29 response to the defense’s discovery demand requesting the names of persons known to the prosecutor to have relevant information. However, the state’s response to the defendant’s request for disclosure of any statements made by the defendant was: “all statements brought out at depositions” and “any statements by accused on arrest and booking report.” Officer Britt was not deposed by either side prior to trial, and no statement was reflected on the arrest and booking report.

The reason the defense intended to call Britt was to elicit the fact that Britt initially took the defendant into custody at the scene, that the defendant had no blood on him and that Britt released him.

Prior to Britt’s being called to testify as a defense witness, the defense requested the court to conduct a Richardson inquiry and to preclude the state from eliciting any. testimony regarding the defendant’s statement on the grounds that the state failed to timely inform the defense of such statement. Outside the jury’s presence, the court inquired into, the circumstances. In response to the court’s question as to why the statement was not furnished earlier to the defense, the prosecutor explained that she had not known of such statement until that morning, December 14, that there had been no reference to such a statement in any of the police reports and that Britt, who was only one of several back-up officers at the scene, prepared no report in the case. The prosecutor further explained that she did not learn of the statement until that morning when Officer Britt came to her office to talk about the case inasmuch as he had received the defense subpoena the previous evening, December 13. Britt informed the prosecutor that during the time he had the defendant temporarily in his patrol car in “protective custody” on the night of the subject incident, the defendant admitted stabbing Miller Mitchell, Jr. The prosecutor informed the court that she immediately prepared and served the amended response to demand for discovery since she knew that the defense intended to call Britt as a witness. The prosecutor stated that she would not seek to introduce the defendant’s statement unless the defense called Britt to testify. She felt that it would not be fair to the state if the jury were able to hear Britt’s description of his encounter with the defendant without also hearing about the defendant’s incriminating statement.

After the court’s initial inquiry of the prosecuting attorney, the trial judge asked defense counsel to inform the court of any prejudice which the defendant would suffer as a result of the late disclosure of the statement. Defense counsel responded that it was unbelievable that the state did not know of the statement earlier. Counsel stated that he did not know how the officer advised the defendant of his rights and how the statement was obtained, that there were “all kinds of questions dealing with the Fifth Amendment” and that the admission of the statement would violate the rules of discovery. The trial judge again invited defense counsel to further specify any prejudice that the defendant would suffer as a result of the late disclosure. Counsel responded that they were prejudiced because they prepared their case without knowing of the statements, that “the prejudice is we couldn’t move to suppress it,” and that “it will be prejudicial for the jury to hear it.” At no time during the Richardson inquiry was it suggested by defense counsel that his client denied making the subject statement.

At the conclusion of the inquiry, the trial judge announced that he was denying the defendant’s motion to preclude the evidence of defendant’s statement. The court stated that although there was a discovery violation by the late disclosure of the statement, it was not willful. He also stated that “the prejudice seems to be more procedural than substantive.” However, the court announced that there would be a recess for the purpose of affording defense counsel the opportunity of taking the depositions of Officer Britt and Detective Ea-son. Prior to the recess, defense counsel asked the court to call Officer Britt and inquire into the circumstances surrounding the statement. The request was denied.

When court reconvened after the depositions were taken, there was no suggestion by the defendant’s attorney that the depositions revealed any additional facts or grounds in support of the defendant’s effort to exclude the defendant’s statement because of the discovery violation. There was no indication by defense counsel that adequate time was not afforded to depose the two officers. Nor was there any suggestion by defense counsel that the deposition of the officers disclosed anything to indicate that the defense could or would have done anything different in preparing for trial or that the defense was otherwise prejudiced as a result of the tardy statement disclosure. And defense counsel did not indicate the need for any additional recess in order to properly meet this new evidence.

In fact, upon reconvening after the deposition recess, defense counsel requested that he be allowed to proffer, outside the jury’s presence, the testimony of Officer Britt, defense counsel indicating to the court that such proffer would be proper “because of what we discovered in deposition.” In granting defense counsel’s request, the judge commented that he had felt that any prejudice resulting from the late disclosure of the statement could be overcome by recessing for the purpose of allowing counsel to depose the officers. But counsel’s examination of Britt on proffer was limited essentially to: (1) eliciting the fact that Britt took the defendant into custody at the scene, that the defendant was released shortly thereafter, and that there was no blood on the defendant’s clothes; and (2) eliciting the incriminating statement made by the defendant to Britt together with the Miranda warnings given by Britt and other circumstances relating to the voluntariness of the statement. Counsel asked no questions regarding what, if anything, Britt may have done in reporting the defendant’s oral statement to any other official. During the proffer, defense counsel called no other witnesses nor was any suggestion made that the defendant had not made the statement.

At the conclusion of the proffer, the only argument defense counsel made was his brief argument that the statement should be suppressed because it was taken “in violation of the defendant’s constitutional rights and the Miranda decision.” Nothing further was said about the tardiness of the statement’s disclosure. The court denied the motion to suppress. The court did grant the defendant’s request, without objection from the state, that Officer Britt’s testimony, when presented by the defense before the jury, be limited to that part of his proffered testimony other than the defendant’s statement and that any evidence regarding the statement would come in, if at all, on rebuttal by the state. That is what happened. Later on, when the state called Britt on rebuttal to testify regarding the defendant’s statement, defense counsel interposed the objection that “there has never been furnished to us any rebuttal statement that they intend to use in this rebuttal.” The objection was overruled.

The appellant strongly asserts that the trial court conducted an inadequate Richardson inquiry and suggests that the defendant was irreparably and substantially prejudiced by the tardy disclosure of the defendant’s incriminating statement.

We believe the trial court’s Richardson inquiry was adequate under the circumstances and that the judge’s finding that the late disclosure of the defendant’s statement was not a willful discovery violation is supported by the record. We do have concern over the fact that the judge denied counsel’s request for the court to call Officer Britt and inquire about the circumstances concerning the defendant’s statement, presumably with respect to the question of willfulness as opposed to prejudice. However, the court afforded counsel the opportunity to depose Officer Britt. Defense counsel did indeed depose Britt during the recess, and thus had full opportunity to question Britt regarding all relevant matters. Moreover, as previously noted, counsel’s subsequent request to question Britt on proffer outside the jury’s presence was granted by the court. And at no time did counsel suggest to the court that anything elicited from Britt, either on deposition or proffer, bolstered the defendant’s argument that the defendant’s statement should be excluded because of its late disclosure.

With respect to the defendant’s claim that he was substantially prejudiced by the late disclosure of the statement, we find the defendant’s argument unpersuasive. In considering this question of prejudice, it must be recognized that the introduction of a defendant’s incriminating statement is always “prejudicial” to an accused just as, presumably, any relevant and material evidence presented by the prosecution. That is not, of course, the kind of prejudice which is to be considered in a Richardson-type inquiry. We, instead, are concerned with determining the extent to which, if any, the defendant will be prejudiced by the untimeliness of the disclosure of otherwise admissible evidence.

During the Richardson hearing, the prosecuting attorney asserted that the only prejudice which the defendant would suffer would be the same prejudice experienced by any accused who had given an incriminating statement. We recognize that the burden is on the party not in compliance with a discovery rule (in this case the state) to demonstrate that the other party will not suffer prejudice as a result of the failure to conform to such rule. Cumbie v. State, 345 So.2d 1061 (Fla.1977), Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977). Neither the state nor the court was able to identify any prejudice which.would result to the defendant by the late disclosure. As a practical matter, in this case only the defense counsel was in a position to identify for the trial judge any prejudice which would befall the defendant. That is, of course, why, in this kind of ease, it is quite reasonable for the trial court, at some point during the Richardson inquiry, to invite defense counsel to indicate how the defendant will be prejudiced by the fact that the otherwise admissible statement was disclosed in an untimely manner. The trial court in the instant case made reasonable efforts to determine how the defendant would be prejudiced. Defense counsel was simply unable to indicate any prejudice of the kind that would entitle the defendant to an order excluding such relevant and material evidence.

Defense counsel’s concerns articulated during the Richardson hearing, as we earlier noted, that counsel did not know how Officer Britt advised the defendant of his rights and that Fifth Amendment questions were implicated were adequately accommodated by the “voluntariness” hearing which the court conducted in the jury’s absence. There are a variety of scenarios which might have occurred which would have demonstrated the kind of prejudice supporting the defendant’s motion to exclude the statement. For example, if a defendant, under these circumstances, claimed that the statement was exacted from him by threats or promises and that the late disclosure jeopardized the defendant’s opportunity to secure the presence of others who might have been present and heard such threats, such a defendant might very well be entitled to have such statement excluded. Or, if a defendant were to claim that he was under the influence of prescription medication to the extent of rendering him incapable of making a voluntary statement, he might be able to show prejudice by the late disclosure if he were unable, on such short notice, to secure the attendance and production of witnesses and documents in support of his claim.

Defense counsel’s assertion, during the Richardson inquiry, that the defense was prejudiced because they prepared their case without knowing' of the statement is too broad and conclusory to entitle the defendant to exclusion of the statement. As in the examples indicated in the preceding paragraph, it is not difficult to imagine circumstances in which a defendant might well be prejudiced because of the manner in which his case was prepared. However, there is virtually no way for the Court or state to be aware of the peculiar manner in which the late disclosure will adversely affect the defendant’s case without counsel’s articulating the same. That, we think, is not too much to expect of a defendant who is seeking to exclude highly relevant and material evidence because of a discovery rule violation.

Recognizing that a trial is, fundamentally, a means for arriving at the truth, we should not lightly sanction the exclusion of admissible evidence on account of untimely compliance with discovery rules. We recently spoke to a related situation in Austin v. State, 461 So.2d 1380 (Fla. 1st DCA 1984), in which we reversed the trial court’s exclusion of certain defense witnesses by reason of the untimely disclosure of such witnesses by the defense:

In a system in which the search for truth is the principal goal, the severe sanction of witness exclusion for failure to timely comply with the rules of procedure should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts and the testimony is not cumulative. We are not unsympathetic with the plight of the trial judge who must deal with the all-too-frequent eleventh hour revelations of new evidence and witnesses and the inevitable last minute objections and motions in li-mine based upon procedural rules violations. The trial judge must be accorded considerable latitude in handling these situations as the exigencies of each case may suggest.

We find that the trial court did not err in denying the defendant’s motion to exclude the defendant’s statement and his motion for mistrial based thereon.

We have examined the remaining points urged by appellant and find them to be without merit.

AFFIRMED.

JOANOS and WIGGINTON, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      .When this remark is considered along with the other comments by the trial court during and after the Richardson inquiry, it is apparent that the court found that the defendant would not be prejudiced by the untimeliness of the statement's disclosure.

      . The depositions are not a part of the record before this court.

      . Not until the defendant took the stand and testified before the jury was there any indication that he denied making the statement.

      . There could be a question as to whether the defendant was entitled to assert a discovery violation at all in this case. In response to the defendant’s demand for disclosure of statements of the defendant, the state did not, as in other cases such as Cumbie v. State, 345 So.2d 1061 (Fla.1977), respond that there were none. Instead, the state’s response, as earlier noted in this opinion, was: "all statements brought out at depositions” and “any statements by accused on arrest and booking report.” In view of the relatively early date of the filing and service of the state's response, it would appear that the state was referring to depositions yet to be taken. One could certainly take the position that the state’s response was tantamount to no response inasmuch as the defense, under the discovery rules, is entitled to have the state identify any of the defendant’s statements without regard to depositions which may be taken. And, therefore, the defendant who acquiesces in either no answer or a non-responsive answer, in lieu of seeking an order requiring a proper response, does so at his peril. However, the state has not attempted to assert such a position, either in this or the lower court, and we, therefore, do not decide that question.

      . Theoretically, we assume there could be situations where late-disclosed evidence sought to be used by the state might be so innocuous as not to be damaging to the defendant. That kind of “non-prejudice” might then be a factor in sustaining a trial court’s allowance of the evidence notwithstanding the discovery violation.


author: BERANEK, Judge. SMITH, RUPERT JASEN, Associate Judge, PER CURIAM. LETTS, Judge,

text:
    AMERICAN MEDICAL INTERNATIONAL, INC., Palm Beach Gardens Community Hospital, Inc., and T.R. Bruce, Jr., Appellants/Cross Appellees, v. Zbigniew SCHELLER, Appellee/Cross Appellant.
    No. 80-1650.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearing Denied Jan. 30, 1985.

      Mark Hicks of Daniels & Hicks, Mercer K. Clarke of Smathers & Thompson, Miami, and Larry A. Klein, West Palm Beach, for appellants/cross appellees.
    Edna L. Caruso of Edna L. Caruso, P.A. and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for ap-pellee/eross appellant.
   BERANEK, Judge.

This is an appeal and cross appeal growing out of a complex intra-hospital battle between the corporation owning the hospital and at least some of the medical staff. Dr. Scheller, a pathologist previously under contract with the hospital as laboratory director, brought a suit which resulted in a substantial jury award. The defendants in the action were: Palm Beach Gardens Community Hospital, Inc.; American Medical International, Inc.; Mr. T.R. Bruce; and Dr. Hobin. The jury awarded Dr. Scheller $1,250,000 in compensatory damages under three theories as set forth in different counts. The theories of liability were: (1) breach of contract, (2) tortious interference with a contractual relationship, and (3) tor-tious interference with an advantageous business relationship. This amount ($1,250,000) was awarded against Palm Beach Gardens Community Hospital, American Medical International, Inc., and Mr. Bruce. The parties stipulated that the jury could return a verdict for one amount on all three counts against all defendants. Under this stipulation as to the verdict, there is no break down as to how much the jury would have awarded for each count against the separate defendants. The jury also awarded Dr. Scheller punitive damages in the following amounts: (1) American Medical International — $4,000,000; (2) Palm Beach Gardens Community Hospital, Inc. — $1,000,000; and (3) Mr. T.R. Bruce, Jr. — $1,000,000. Thus, the total amount awarded Dr. Scheller was $7,250,000, or $1,250,000 in compensatory damages, and $6,000,000 in punitive damages. On post-trial motions, the trial court vacated the punitive damages award against Mr. Bruce and granted him a new trial.

The defendants have appealed and plaintiff has cross appealed. The theories of liability and the underlying facts are complex. Extensive pretrial pleadings and discovery and a three-week jury trial resulted in an appellate record of over 7,200 pages. Complimentary to the trial judge, no error is asserted as to any evidentiary rulings, jury instructions, or the form of verdict. A summary of the facts follows.

Dr. Hobin — a defendant, the pathologist hired to replace Dr. Scheller. This physician was not on staff for two years before being hired but was employed earlier by the hospital.
American Medical International, Inc.— the parent corporation and 100% stockholder of the hospital. (AMI).

In 1970, the AMI Corporation purchased the hospital. The AMI corporation owns numerous health care facilities, and the corporation and the hospital are both in business for profit. On May 12, 1975, Dr. Scheller, a pathologist, signed an employment contract as laboratory director with the hospital effective July 18, 1975. Dr. Scheller was already a member of the medical staff of the hospital before he signed this contract as laboratory director. A great deal of controversy occurred regarding the operation of the pathology lab both before and after Dr. Scheller took over. Mr. T.R. Bruce, Jr., was the full-time administrator of the hospital, and on May 29, 1979, he sent Dr. Scheller a letter terminating the doctor’s employment contract effective as of September 1, Í979. This termination is not asserted as a breach of contract nor does Dr. Scheller contend it to be otherwise improper. However, on May 31, 1979, the hospital hired Dr. Hobin to replace Dr. Scheller as the hospital pathologist. It was the hiring of Dr. Hobin which is asserted to be a breach of contract and to have otherwise contravened Dr. Schel-ler’s rights. On August 21, 1979, Dr. Scheller filed the suit involved in this appeal. Dr. Scheller was still on the medical staff of the hospital at the time and is still so employed with full privileges in clinical and anatomical pathology. Although Dr. Scheller was no longer director of the laboratory, he was chosen and designated by numerous doctors on the medical staff of the hospital as their own special medical expert in the pathology. During the course of Dr. Scheller’s continued practice in the hospital and while the lawsuit was pending he secured at least two injunctions against the hospital. The hospital had barred the doctor from certain internal records and from certain aspects of the laboratory. The injunctions required the hospital to give Dr. Scheller full access to the laboratory and the records. In May, 1980, the trial in the instant case occurred.

The defendants raise four points on appeal. Point I relates to the breach of contract theory while Points II and III concern tortious interference with a contract and an advantageous business relationship. Point IV addresses damages. The plaintiff’s cross appeal contests the new trial granted to defendant Bruce.

The breach of contract theory is attacked as a matter of law in defendants’ first argument which urges error in the court’s denial of motions for directed verdict. The theory of liability and the attack thereon require reference to the employment contract and the by-laws of the medical staff. Dr. Scheller’s employment contract contained 19 clauses. The last clause dealt with termination of the contract and provided as follows:

The term of this Agreement shall be for a period of three (3) years ... and continuing from year to year thereafter unless terminated as herein provided, provided, however, that either of the parties hereto shall have the right and privilege of cancelling and terminating this Agreement upon ninety (90) days written notice to the other. Upon the expiration of said notice, this Agreement shall be and become of no further force or effect whatsoever and each of the parties hereto shall be relieved and discharged herefrom. (Emphasis supplied.)

Based on Clause Nineteen, which both parties agree is unambiguous, defendants assert the contract was terminable without cause upon ninety days’ notice to plaintiff. They maintain that Dr. Scheller was given due notice and his contract terminated. As such, defendants contend the trial court should have directed a verdict in their favor, and that damages for breach of contract should not have been submitted to the jury. Naturally, plaintiff disagrees, and in doing so relies upon Clause Seven of the same employment contract which provides as follows:

SEVENTH — INDEPENDENT CONTRACTOR: In the performance of the work, duties and obligations devolving upon PATHOLOGIST under the terms of this Agreement, it is mutually understood and agreed that PATHOLOGIST shall, at all times, act and perform as an independent contractor practicing the profession of medicine and surgery and specializing in Pathology. HOSPITAL shall neither have nor exercise any control or direction over the methods by which PATHOLOGIST or those assistants, associates or partners of PATHOLOGIST shall perform their work and functions; the sole interest and responsibility of HOSPITAL is to assure that the DEPARTMENT and services covered by this Agreement shall be performed and rendered in a competent, efficient and satisfactory manner. The standards of medical practice and professional duties of PATHOLOGIST shall be determined by the Medical Staff of HOSPITAL. All applicable provisions of law and other rules and regulations of any and all governmental authorities relating to licen-sure and regulation of physicians and hospitals and to the operation of DEPARTMENT shall be fully complied with by the parties hereto; in addition, the parties shall also operate and conduct the DEPARTMENT in accordance with the standards and recommendations of the Joint Commission on Accreditation of Hospitals, the By-Laws of HOSPITAL, and the By-Laws, Rules and Regulations of the Medical Staff of HOSPITAL as may be in effect from time to time. (Emphasis supplied.)

On the basis of Clause Seven, plaintiff contends that the parties intended to incorporate the by-laws of the medical staff into the employment agreement. Plaintiff introduced the by-laws into evidence and by special interrogatory the jury concluded the parties did intend to incorporate these by-laws into the employment contract. The by-laws, a 75-page document, provide a lengthy statement of policy and procedures governing all aspects of medical practice in the hospital. Article IV concerns staff membership and provides that a “contract physician” must be a member of the “active staff.” A physician could not, under the by-laws, become a member of the active staff until he or she had spent one year on the privilege staff and one year on the associate staff. Thus, plaintiff contends his employment contract, as supplemented by the by-laws, was breached when the hospital hired Dr. Hobin to replace him, because Dr. Hobin had not been on the medical staff for two years immediately preceding his hiring and had not attained “active staff” membership. According to plaintiffs theory, he could not be replaced until two years after another pathologist had been on staff and this was almost impossible because economic reality would not allow another doctor to work as a pathologist for two years while the hospital ran its own laboratory in competition with him. Defendants characterize this as plaintiffs “lifetime contract” theory. Plaintiff sought damages before the jury measured by compensation he would have received under the terms of his contract until his probable retirement at age 65, a period of roughly 25 years. On appeal Dr. Scheller seems to disavow the ‘.‘lifetime contract” theory but at the same time argues:

[h]e was given great security (i.e.), a contract with termination conditions that would allow him to remain as Laboratory Director as long as he chose, because of the practical restrictions on his replacement. Accordingly, ... his damages could be assessed anywhere from two years ... to retirement (age 65). That was for the jury to determine. (Appel-lee’s Brief p.36).

The defendants’ arguments against the contract theory are: (1) that there was no ambiguity, (2) if an ambiguity existed, it had to be resolved against plaintiff as a matter of law, (3) the contract was void for lack of mutuality, and (4) damages were unproven and not recoverable. We conclude that these arguments have merit and that the trial court erred in simply submitting all matters to the jury as issues of fact for their determination. The court should have first employed the established rules of contractual construction and, based thereon, directed a verdict for defendants on the breach of contract count. Here, the burden of initially construing the contract was improperly shifted entirely to the jury. This court has stated the rule to be:

Where, as in the instant case before this court, a contract is clear and unambiguous and does not involve any absurdities or contradictions, it is the best evidence of the intent of the parties, and its meaning and legal effect are questions of law for determination by the court alone [citations omitted] (emphasis added). Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So.2d 676, 678 (Fla. 4th DCA 1976).

The two clauses in the employment contract, No. Seven governing independent contractors and No. Nineteen governing termination, were unambiguous and unrelated. It was improper to rule that the entire contract became totally ambiguous and totally subject to construction and interpretation by the jury by virtue of the incorporation of the by-laws which contained everything but “the kitchen sink.”

Even indulging the argument that the contract was subject to construction, the eventual result remains the same under other established rules of contract law. A true ambiguity does not exist merely because a contract can possibly be interpreted in more than one manner. Indeed, fanciful, inconsistent, and absurd interpretations of plain language are always possible. It is the duty of the trial court to prevent such interpretations. In Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla. 2d DCA 1963), the court stated as follows at 316:

Looking to the other provisions of a contract and to its general scope, if one construction would lead to an absurd conclusion, such interpretation must be abandoned and that adopted which will be more consistent with reason and probability.

Further in James v. Gulf Life Ins. Co., 66 So.2d 62, 63 (Fla.1953), the court stated:

The inconvenience, hardship, or absurdity of one interpretation of a contract or its contradiction of the general purpose of the contract is weighty evidence that such meaning was not intended when the language is open to an interpretation which is neither absurd nor frivolous and is in agreement with the general purpose of the parties.

A 90 day termination provision and a lifetime contract provision are most obviously inconsistent.

If clauses in contract appear to be repugnant to each other, they must be given such an interpretation and construction as will reconcile them, if possible, and if one interpretation would lead to an absurd conclusion, then such interpretation should be abandoned and the one adopted which would accord with reason and probability. Triple E Development Co. v. Floridagold Citrus Corp., 51 So.2d 435 (Fla.1951).

Dr. Scheller’s theory of construction renders clauses seven and nineteen irreconcilable and totally destroys the unambiguous language (in the actual contract) in both clauses. The general scope and intent of the contract was obviously not to confer a lifetime benefit on Dr. Scheller. The jury should not have been allowed to render totally ineffectual the clear termination provisions of the contract.

The most compelling argument against the plaintiff’s position is the appalling lack of mutuality in the contractual relationship which plaintiff constructs from the combined interplay of the contract and the by-laws. Under plaintiffs construction, he has a lifetime contract at an established rate of compensation; however, did the hospital have any corresponding rights, that is, could the hospital legally rely on Dr. Scheller’s staying as lab director at the same rate of pay for the rest of his life? If Dr. Scheller had chosen to retire early at age 55 and given 90 days’ notice, could the hospital have collected the same damages from him? We think not. If for no other reason, the contract as constructed by plaintiff is void for lack of mutuality. In sum we find no breach of contract as a matter of law.

The plaintiff’s second theory of recovery, intentional interference with the contract, must fail for the same reasons as outlined above. Under this count plaintiff relies on the same lifetime contract asserting interference rather than breach. Plaintiff’s liability theory was that AMI and Mr. Bruce interfered with his contract with the hospital. Plaintiff proposed a “two hat theory” whereby Bruce (the hospital administrator) interfered with his own hospital’s contract while wearing a separate AMI hat. We have previously held that the plaintiff’s theoretical “lifetime — no replacement” contract simply did not exist. It is this contract which was supposedly interfered with. The elements of the tort of intentional interference are: 1) the contract; 2) the wrongdoer’s knowledge thereof; 3) his intentional procurement of its breach; 4) the absence of justification; and 5) damages. See Smith v. Ocean State Bank, 335 So.2d 641, 643 (Fla. 1st DCA 1976). Here the contract was one which could be terminated by either party without cause on 90 days’ notice. There was no breach of this contract even if we indulge the “two hat theory.” Plaintiff's proofs did not establish the basic elements of the cause of action and the court should have also directed a verdict on this count.

The third count, intentional interference with a business relationship, is, however, entirely different. Under this count, Dr. Scheller does not complain about the termination of his employment as lab director nor about his replacement by Dr. Hobin. Instead, Dr. Scheller contends that AMI, Bruce, Hobin, and the hospital interfered with the business relationship he established with the other physicians on the medical staff after he was terminated as lab director. Once again, the theory and the facts are somewhat complex. After Dr. Scheller’s employment as lab director terminated, some 63 physicians designated him to perform pathology services for their patients. These doctors were entitled to do so under a staff by-law which provided:

Regardless of an exclusive contract for Pathology, Radiology or the like, a physician with the consent of the Medical Staff may designate a different medical expert in these fields; and that person so designated shall be afforded the full use of the hospital facilities to do his routine work as requested, in which event the medical expert that does the work shall submit the medical fee statement to the patient or the hospital, as the case may be, and there will not be a double billing.

It would appear this by-law was designed to give physicians practicing in the hospital the option of associating an outside pathologist or outside radiologist to function in specific cases in place of the hospital pathologist or radiologist. If a surgeon wished, he could have his radiology work done by an outside physician who was not on the medical staff by designating that outside radiologist as a special medical expert under the by-law. When Dr. Scheller was terminated as lab director, he not only remained on the staff but was also designated by 63 physicians as their own special expert. As such, Dr. Scheller went into competition with Dr. Hobin who was operating the hospital’s pathology laboratory. Under the by-law, Dr. Scheller was entitled to “the full use of the hospital facilities to do his routine work.” Dr. Scheller claimed at trial that AMI, Bruce, Hobin, and the hospital intentionally interfered with his business relationship with these physicians by denying him copies of the hospital’s computerized bills and by barring access to the clinical laboratory.

The elements of a cause of action for intentional interference with an advantageous business relationship are: (1) the existence of an advantageous relationship under which the plaintiff has legal rights, (2) an intentional and unjustified interference with that relationship, and (3) damage to the plaintiff as a result of the defendant’s actions. Wackenhut Corp. v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980). Here, the defendants refused to allow plaintiff to review and interpret test results relating to patients of doctors who had designated Dr. Scheller as their own pathologist. Dr. Scheller was also initially excluded from practicing clinical pathology in the laboratory being run by Dr. Hobin. Indeed, Dr. Scheller went to court in separate suits and obtained two injunctions to prevent the defendants from denying him access to test results and to the clinical laboratory facilities. Both of these injunctions were issued shortly before the main trial took place. The jury was not advised of the injunctions, but appellee has placed heavy reliance on the injunctions in argument before this court. No one has raised the question of how Dr. Scheller can get damages for future interference when that very interference has been twice enjoined by the court in suits between the same parties. Since this issue has not been raised, we do not further address it.

The arguments which defendants do raise are basically factual in nature. They point out that it is uncontested that no physician abandoned or even restricted his business relationship with Dr. Scheller even though the doctor asserts that his own performance was made more difficult or burdensome by the “billing” and “access” problems created by the hospital. In short, the doctor contends the hospital interfered by hindering his performance while the hospital contends he was merely “inconvenienced.” The doctor argues that the two injunctions show how bad the “inconvenience” really was, and the hospital urges we should disregard the injunctions because they occurred in different lawsuits and were, not admissible before the jury. We are in agreement with the defendants’ overall position on this issue. The evidence was that no doctor breached his relationship with the plaintiff. Unsuccessful interference is simply not the kind of interference upon which a tort may be founded or upon which damages may be assessed. In the context of this case, the fact that no doctor abandoned or breached the existing relationship with Dr. Scheller was of crucial significance. Since the relationships between Dr. Scheller and the 63 designating physicians remained intact, there was no cause of action proved and the court should have also directed a verdict on Count III.

In summary, we conclude that the court should have directed verdicts on Counts I, II and III. The final judgment below is thus reversed. We do not determine the cross appeal because it is rendered moot by the foregoing opinion.

REVERSED.

GLICKSTEIN, J., concurs.

SMITH, RUPERT JASEN, Associate Judge, dissents with opinion.

SMITH, RUPERT JASEN, Associate Judge,

dissenting.

I respectfully and strongly disagree with the majority opinion rendered in this case. I think there was a breach of contract by the Defendant Hospital and its Administrator Bruce on two counts.

First, the Hospital hired Dr. Frederick P. Hobin before Dr. Zbigniew Scheller’s 90 day notice had expired, this is simple.

The second breach is more complex, it is my view that the trial court did err. The court should have decided there was a breach of contract concerning the hiring of a doctor prior to the two year probation period instead of submitting that question to the jury — there was no dispute that Dr. Hobin was hired by the hospital prior to the two year probation period contained in the staff bylaws and, therefore, under the modern view, the staff bylaws become a contract with the staff physicians when approved by the governing body of the hospital.

Florida Statute 395 and Rule 10D-28.58, Florida Administrative Code Annotated, adopted by the Department of Health and Rehabilitative Services, states:

“10D-28.58 MEDICAL STAFF. Each hospital shall have a medical staff organized under written bylaws approved by the governing authority and responsible to the governing authority of the hospital for the quality of all medical care provided to patients in the hospital and for the ethical and professional practices of its members.”

It is to be noted that the Joint Committee on Hospital Accreditation also requires the medical staff to have its own bylaws.

The modern view holds that the medical staff bylaws, when approved by the governing board of the hospital, become a contract between the hospital, operated by a Governing Board and the physicians composing the medical staff. See the following cases: Berberian v. Lancaster Osteopathic Hospital Association, 395 Pa. 257, 149 A.2d 456 (1959); Joseph v. Passaic Hospital Association, 26 N.J. 557, 141 A.2d 18 (1958); Miller v. Indiana Hospital, 277 Pa. Super. 370, 419 A.2d 1191 (1980); The Anne Arundel General Hospital, Inc., et al. v. O’Brien, et al., 49 Md.App. 362, 432 A.2d 483 (1981); St. John’s Hospital Medical Staff v. St. John Regional Medical Center, Inc., 90 S.D. 674, 245 N.W.2d 472 (1976); O’Leary, et al. v. Board of Director, Howard Young Medical Center, Inc., et al., 89 Wis.2d 156, 278 N.W.2d 217 (1979).

In the Passaic Hospital case cited above the Court held:

“The medical staff bylaws were ratified by the Board of Governors, and thereby became a constituent part of the association’s elemental law.”

Also, in The Anne Arundel Hospital case, the Court stated:

“It is well settled that hospital bylaws have the force and effect of an enforceable contract.”

The next question to be answered is, do they enure to the benefit of individual staff members, i.e., doctors, or do they enure to the staff association? In areas that affect the physicians collectively the law provides that the bylaws would apply collectively; in those areas that affect an individual physician the law provides that the staff bylaws would apply individually.

Since bylaws are a contract between the physicians and the hospital, the hospital without question breached the contract (staff bylaws which in this case enured to Dr. Scheller)! The trial judge should have submitted the issue of damages to the jury for determination of breach of contract. Since the trial judge submitted the issue of whether there was a factual breach of contract to the jury for determination and the jury answered that question in the affirmative, as should have the trial judge, this error is harmless.

The next question is the amount of actual damages — it is too speculative to allow the jury to award damages to age 65 for Dr. Scheller. I would send this question back to the jury for the sole determination of actual damages for the breach of contract. It is my suspicion that the jury awarded Dr. Scheller the $1,250,000.00 as an indication that the community will not tolerate hospital administrators to treat the staff physicians in such a cavalier manner.

The punitive damages should be disallowed and a new trial should be granted on the issue of punitive damages, unless the plaintiff accepts a remittitur of 50 per cent on all awards of punitive damages including Mr. T.R. Bruce’s, in my opinion, it was error for the trial judge to set his award aside, especially since he was the driving force behind this controversy. Administrators of hospitals should be aware that the law will not allow them dictatorial powers! My further belief is the jury allowed these punitive damage awards as a message to hospitals everywhere that the public will not endure below standard laboratories and other facilities in hospitals, especially after physicians have complained about conditions. Who else should complain except the physicians who are charged with seeing that high standards of health care are maintained, not only does the law require this of the doctors, also their staff bylaws, their code of ethics and also by various accreditation committees recommendations.

The reasoning for reducing the punitive damage awards by 50 per cent is that the amounts shock my judicial conscience— while the hospitals will pay this amount, the ultimate burden will be on the patients of these hospitals, it is unrealistic to deny that the hospital corporation will not pass some of these amounts on as increased patient costs, however, there was ample evidence to justify punitive damages.

The other theories of liability are immaterial in view of this holding.

PER CURIAM.

The petition for rehearing and the en banc motion to vacate court’s decision and to transfer case to another district court for resolution are denied. The request for oral argument and to consider en banc motion as regular motion are rendered moot.

DOWNEY and GLICKSTEIN, JJ., concur in the denial of the petition for rehearing.

SMITH, RUPERT JASEN, Associate Judge, dissents from the denial of rehearing.

ANSTEAD, C.J., and DOWNEY, HERSEY, GLICKSTEIN, HURLEY and DELL, JJ., concur in the denial of en banc motion.

LETTS, J., specially concurs in denial of en banc motion.

WALDEN and BARKETT, JJ., recuse themselves from consideration of en bane motion.

LETTS, Judge,

specially concurring.

There has been no request for rehearing en banc in this case. This being so I am precluded from considering the decision on its merits.

As I view this matter, the question of whether I should vote to disqualify this entire court and as a necessarily included disqualification, myself, is not controlled by any of the cases cited, but rather by In re Estate of Carlton, 378 So.2d 1212 (Fla.1979). True, Carlton did not involve a fact-situation on all fours with the case at bar. However, it stands for the proposition that an appellate judge is not subject to the dictates of Chapter 38 of the Florida Statutes, and that he must, in the exercise of his personal discretion, determine for himself the legal sufficiency of the request and the propriety of his withdrawing. I can discover no legal sufficiency for the request, but I do find it would be improper for this court to withdraw because it would “adversely and unjustly affect the successful party in the cause.” See Carlton, supra, at 1220.

      . The verdict returned by the jury was as follows:

      CASE NO. 79-3358 CA (L) 01 F
      ZBIGNIEW SCHELLER, Plaintiff, vs. AMERICAN MEDICAL INTERNATIONAL, INC., a foreign corporation for profit, PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., a Florida corporation for profit, FREDERICK P. HOBIN, M.D., and T. R. BRUCE, JR., Defendants.
      VERDICT
      We, the Jury, find the following:
      1. As to Count II for breach of the written contract, do you find that:
      (a) At the time PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., entered into the contract with Fred Hobin, the Medical Staff Bylaws contained this provision: “Any physician holding a contract with the Hospital must be a member of the active Medical Staff?”
      YES X NO _
      If your answer to 1(a) above was YES, then answer the following question:
      (b) At the time they executed the contract on May 12, 1975, was it the intent of ZBIGNIEW SCHELLER and PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., to incorporate that provision into their contract?
      YES X NO _
      If your answer to 1(b) was YES, then answer the following question:
      (c) Was it the intent of the Hospital and the Medical Staff at the time the Bylaws were adopted that this provision meant that the Hospital could not contract with a physician until that physician had been a member of the Medical Staff for at least two years and had been elevated to Active Staff membership?
      YES X NO _
      If your answer to 1(c) above was YES, then answer the following question:
      (d) Was this provision an essential and material term or condition of the contract?
      YES X NO _
      If your answer to 1(d) above was YES, then answer the following question:
      (e) Did the Hospital violate this provision of the contract by entering into a contract with Fred Hobin who was not a "member of the active Medical Staff?"

        Dr. Scheller — the plaintiff, a hospital pathologist who sued for breach of his employment contract and for tortious interference with contractual and business relationships. Although no longer director of the pathology lab, the doctor remained on the hospital staff.
      YES X NO _
      2. If you find the Defendant, PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., liable to the Plaintiff for breach of contract, then state the amount of compensatory damages sustained by the Plaintiff as a consequence of such conduct: $1,250,000.00.
      3. Do you find the Defendant, AMERICAN MEDICAL INTERNATIONAL, INC., liable to the Plaintiff for:
      (a) Tortious interference with the contract between the Plaintiff and PALM BEACH GARDENS COMMUNITY HOSPITAL, INC.,?
      YES X NO _
      (b) For tortious interference with an advantageous business relationship between the Plaintiff and certain members of the Medical Staff?
      YES X NO _
      4. Do you find the Defendant, T.R. BRUCE, JR., liable to the Plaintiff for:
      (a) Tortious interference with the contract between the plaintiff and PALM BEACH GARDENS COMMUNITY HOSPITAL, INC.,"
      YES X NO _
      (b) For tortious interference with an advantageous business relationship between the Plaintiff and certain members of the Medical Staff?
      YES X NO _
      5. Do you find the Defendant, FREDERICK P. HOBIN, M.D., liable to the Plaintiff for:
      (a) Tortious interference with the contract between the Plaintiff and PALM BEACH GARDENS COMMUNITY HOSPITAL, INC.,?
      YES _ NO X
      (b) For tortious interference with an advantageous business relationship between the Plaintiff and certain members of the Medical Staff?
      YES _ NO X
      6. Do you find the Defendant, PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., liable to the Plaintiff for:
      (a) Tortious interference with an advantageous business relationship between the Plaintiff and certain members of the Medical Staff?
      YES X NO _
      Palm Beach Gardens Community Hospital, Inc. (hospital) — the defendant/hospital where Dr. Scheller was (and is) on the medical staff.
      T.R. Bruce, Jr. — a defendant, the hospital’s full-time administrator.
      7. If one or more of the Defendants have been found liable for tortious interference with the contract between the Plaintiff and PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., then state the amount of compensatory damages sustained by the Plaintiff as a consequence of such conduct: $1,250,000.00.
      8. If one or more of the Defendants have been found liable for tortious interference with an advantageous business relationship between the Plaintiff and certain members of the Medical Staff, then state the amount of compensatory damages sustained by the Plaintiff as a consequence of such conduct: $1,250,000.00.
      9. If you have found the Defendant, AMERICAN MEDICAL INTERNATIONAL, INC., liable to the Plaintiff for any of the alleged acts (that is, if you answered ''YES” to 3(a), or (b), then do you find that AMERICAN MEDICAL INTERNATIONAL, INC., is required to pay punitive damages, and, if so, what is the amount of punitive damages fixed by you?
      PUNITIVE DAMAGES — YES X
      NO _
      AMOUNT: $4,000,000.00
      10. If you have found the Defendant, T.R. BRUCE, JR., liable to the Plaintiff for any of the alleged acts (that is, if you answered “YES” to 4(a) or (b), then do you find that T.R. BRUCE, JR., is required to pay punitive damages, and, if so, what is the amount of punitive damages fixed by you?
      PUNITIVE DAMAGES — YES X
      NO _
      AMOUNT: $1,000,000.00
      11. If you have found the Defendant, PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., liable to the Plaintiff for tortious interference with an advantageous business relationship (that is, if you answered 'YES” to 6(a), then do you find that PALM BEACH GARDENS COMMUNITY HOSPITAL, INC., is required to pay punitive damages, and, if so, what is the amount of punitive damages fixed by you?
      PUNITIVE DAMAGES — YES X
      NO _
      AMOUNT: $1,000,000.00
      SO SAY WE ALL.
      DATED this 31st day of May, 1980, at West Palm Beach, Palm Beach County, Florida.
      /s/ Bart Kelleher Foreperson

      . A provision in the medical staff bylaws allowed any staff doctor to designate an outside specialist in pathology or radiology. Dr. Schel-ler was so designated by a substantial number of staff doctors and thus continued to practice extensively as a pathologist in the hospital despite the fact he was no longer lab director.

      . Dr. Hobin had previously been the director of the hospital laboratory but had left the hospital's employment prior to Dr. Scheller’s signing his initial contract on May 12, 1975.


author: PER CURIAM.

text:
    Anthony N. NICHOLAS, Petitioner, v. Anthula NICHOLAS, Respondent.
    No. 84-1459.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Harold S. Wilson, Clearwater, for petitioner.
   PER CURIAM.

Petition for writ of certiorari denied. See Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980); Suez Company v. Hodgins, 137 So.2d 231 (Fla. 3d DCA 1962).

GRIMES, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


author: GLICKSTEIN, Judge,

text:
    IN re ESTATE OF Arthur E. DAVIS, Deceased.
    No. 81-2241.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Todd L. Smith, P.A., and Nancy Little Hoffman, P.A., Fort Lauderdale, for appellant-Arthur E. Davis, Jr.
    Bruce G. Shaffner and Matt D. Heilman of Shaffner, Shaffner & Dyer, P.A., Fort Lauderdale, for appellee-Claire Jones.
   We recede from the holding in In Re Estate of Davis, 428 So.2d 774 (Fla. 4th DCA 1983).

The correct and applicable principles of law were announced in In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971).

We find that the trial court properly followed the process outlined in In Re Estate of Carpenter, supra, and that no reversible error has been demonstrated.

Affirmed.

ANSTEAD, C.J., and DOWNEY, LETTS, HERSEY, HURLEY, DELL, WALDEN and BARKETT, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specialty-

As the author of the original opinion in this case, from which the court has now receded, I wish to concur by separate opinion in order to express some thoughts that the new opinion does not verbalize:

1. In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971), pre-dated the effective date, July 1, 1979, of the Florida Evidence Code, specifically sections 90.302-.304, Florida Statutes (1976). However, I frankly should have been aware of the effect of Cripe v. Atlantic First National Bank of Daytona Beach, 422 So.2d 820, 823 (Fla.1982), which, albeit by way of analogy or dictum, reiterated the substance of the pre-code holding in Carpenter, inasmuch as Cripe concerned active procurement, by undue influence, of a joint bank account rather than a will. Accordingly, the original opinion in Davis authored by the writer was in error in describing the presumption of undue influence to be non-vanishing. The burden of proof or persuasion continues to lie with the contestant of a will, once the proponent has sustained the burden of establishing prima facie its execution and attestation.

2. While the foregoing principle is settled in Florida, a reading of academicians’ varied and conflicting expressions upon the subject of presumption could be equated with the floor debate of a myriad of political parties in some European country. The confusion is evidenced by the congressional debate over proposed Rule 301 of the Federal Rules of Evidence described in 21 C. Wright & K. Graham, Federal Practice and Procedure §§ 5121-29 (1977) as well as the varied interpretation of the rule once it was adopted. Nevertheless, the foregoing text should be initial required reading for the judge or lawyer about to step into these murky waters because of its keen analysis of the battlelines and participants together with a summary of the divergent interpretations. As the authors point out:

[I]t is now necessary to introduce a topic upon which courts have taken inconsistent positions and that has split the academicians into warring camps. This is, the question of the procedural effect of a presumption in the face of rebutting evidence. As was the case with judicial notice, there are supposed to be two schools of thought identified by the names of their leading spokesman; here again one must speak of a “Thayer-Wig-more” vs. “Morgan-McCormick” conflict.

Id. § 5122, at 562-63 (footnote omitted).

Under the theory of presumptions attributed to Thayer and Wigmore, a presumption was a matter of procedural convenience and was to operate only in the absence of any evidence of the presumed fact. Once the opponent introduced sufficient evidence of the nonexistence of the presumed fact to justify a jury finding in his favor, the operation of the presumption was at an end. On a subsequent motion for a directed verdict or other peremptory ruling, the judge was to decide the issue free from any compulsion of the presumption. Of course, in the hypothetical case, since the basic fact of the presumption would give rise to an inference that the presumed fact existed, the plaintiff would be entitled to go to the jury on the strength of the inference. But where there was no such logical connection between the basic fact and the presumed fact, the Thayer-Wigmore view of presumptions supposedly meant that unless there was other evidence of the existence of the presumed fact, the opponent was entitled to a directed verdict on that issue. This notion that a presumption “vanished” in the face of rebutting evidence has been characterized by a number of picturesque similes; the one that was favored during the Congressional debates referred to it as the “bursting bubble” theory.
Professors Morgan and McCormick felt that presumptions should be given greater effect than this, though for somewhat different reasons. Professor Morgan felt that presumptions were created for reasons of policy, not just procedural convenience. To him, it seemed foolish for courts to create a presumption that would vanish upon the introduction of contrary evidence, particularly where the evidence was such that a jury might well refuse to believe it. He argued that a presumption should have the effect of not only shifting the burden of producing evidence, but the burden of proof as well. Professor McCormick, while not going this far, thought the jury should be instructed about the existence of the presumption and told that it would permit them to find contrary to the testimony of the nonexistence of the presumed fact. McCormick argued that most of the presumptions were based on an inference, that jurors were prone to distrust circumstantial evidence, and that instructions on presumptions were a useful way to avoid restrictions on judicial comment and advise the jury of the probative worth of inferences.

Id. at 564-65 (footnotes omitted).

Professor Morgan got his theory into the first draft of the Model Code of Evidence, but after a spirited debate, the American Law Institute voted 59 to 42 in favor of the pure Thayerian approach to presumptions.

Id. at 566 (footnote omitted).

Meanwhile, the position of the various appellate courts on the procedural effect of presumptions was much less tidy than that of the academic commentators. While a number of courts gave lip service to the Thayerian dogma, most of them felt compelled to deviate from the “bursting bubble” theory at one time or another in order to give greater effect to presumptions. Morgan once counted at least eight different doctrines adopted by courts to describe the procedural consequences of a presumption. Yet only one state, Pennsylvania, was willing to go as far as Morgan, and even there the courts seem to have retreated from the notion that a presumption always shifts the burden of proof.

Id. at 566-67 (footnote omitted).

3. Florida’s Code of Evidence generally follows that of California in this area of discussion; and the important point to me is that Section 90.303, Florida Statutes (1976), plainly provides that those presumptions involving public policy affect the burden of proof, i.e., they are non-vanishing. I am troubled that in Florida once a contestant has established that a person in a position of confidence has actively procured the execution of the will, thus triggering the “presumption,” the contestant still has the burden of proof. In other words, there is no public policy which would shift the burden of proof to the proponent. I find value in the views expressed by the Supreme Court of Utah in In re Swan’s Estate, 4 Utah 2d 277, 290, 293 P.2d 682, 691 (1956), wherein it quoted from a reference in one of its earlier decisions:

Mr. Pomeroy, in volume 2, § 956, of his excellent work on Equity Jurisprudence, says: ‘While equity does not deny the possibility of valid transactions between the two parties, yet, because every fiduciary relation implies a condition of superiority held by one of the parties over the other, in every transaction between them by which the superior party obtains a possible benefit, equity raises a presumption against its validity, and casts upon that party the burden of proving affirmatively its compliance, with equitable requisites, and thereby overcoming the presumption.’

It further said:

After careful study and consideration we conclude that this presumption shifts the burden onto the confidential adviser of persuading or convincing the fact finder by a preponderance of the evidence that no fraud or undue influence was exerted, or in other words, he has the burden of convincing the fact finder from the evidence that it is more probable that he acted perfectly fair with his confidant; that he made complete disclosure of all material information available and took no unfair advantage of his superior position than that he exerted fraud or undue influence to obtain the benefits in question. This is contrary to our holding in the Jardine case, which is supported by the California case, and some other decisions that clear and convincing evidence to the contrary is necessary to overcome such presumption. We reach this conclusion because we feel that the rule is more clear and understandable than the rule requiring clear and convincing evidence; that this rule is more apt to produce a just result and is more generally recognized as the correct rule governing this situation.
We adopt this rule not as punishment to the lawyer or other confidential adviser who accepts gifts or other possible benefits from a person who reveals to him his secrets and relies on him for disinterested advice and counsel but because in most cases it is apt to produce a correct finding of the facts, for a confidential adviser who practices fraud or undue influence has a strong motive for concealing the truth and the person whose confidence he betrays, even though available as a witness, does not know the schemes and plans used against him to accomplish the desired result.

Id. at 293-94, 393 P.2d at 693 (footnote omitted).

Thus a definite need is shown that the presumption arising out of confidential dealings shall shift the burden of persuasion that there was no fraud or undue influence onto the confidential adviser. For the confidant relies on him and trusts him to give disinterested advice and counsel, and usually reveals to him his inner-most secrets, thereby furnishing opportunity to take advantage of such trust and confidence. Self interest always furnishes a motive for such confidential adviser to take advantage of his superior position, and after the death of the person who confides in him, the adviser can testify of their secret dealings, knowing that no other witness of such events will be available.

Id. at 293, 393 P.2d at 692.

The court said in Carpenter, 253 So.2d at 703-04:

Petitioners urge that policy considerations inherent in the difficulty of proof of undue influence dictate that the burden of proof should shift to Mary. They note that in will contests the testator is not available as a witness to tell his version of such dealings, that in fact usually the only person who is available to testify is the confidential adviser whose self-interest furnishes a motive for him to take advantage of his superior position. This is certainly true and points out the significance of a spectator to certain preambu-latory events. We acknowledge that undue influence is rarely susceptible of direct proof, primarily because of the secret nature of the dealings between the beneficiary and the testator, and because of the death of one of the principals to the transaction, the testator.
Nevertheless, we do not think that these considerations require that the burden of proof or risk of nonpersuasion be shifted onto the beneficiary. Because it is frequently as difficult to disprove undue influence as to prove it, the practical effect of shifting the burden of proof is to raise the presumption virtually to conclusive status and require a finding of undue influence, as happened in the case sub judice. Thereby, much of the discretion of the trial judge to evaluate and weigh the evidence before him is lost, and with it one of the most valuable services we call on trial judges to perform in non-jury cases. We are unable to agree with any theory which vests great discretion in the trier of fact in other kinds of cases but ties his hands in will contest cases.
The better rule, enunciated by this Court in Leonetti v. Boone, supra, [74 So.2d 551 (Fla.1954) ], shifts to the beneficiary only the burden of coming forward with a reasonable explanation for his or her active role in the decedent’s affairs, and specifically, in the preparation of the will, and we so hold. Such a result comports with what we conceive to be the intent of Fla.Stat. § 732.31, F.S.A., in providing that the burden of proof in will contests shall be on the contestant to establish the facts constituting the grounds upon which the probate of the purported will is opposed.

Given the statutory predicate as the keystone of the opinion which, to me, survives any criticism of the remaining language, I hope the legislature will revisit the subject matter. This case, in my view, in itself justifies such review of the statute. I find it an anathema for a beneficiary to be present during execution of a will or when an attorney is discussing a prospective will with a testator client.

      . In re Estate of Davis, 428 So.2d 774 (Fla. 4th DCA 1983), as clarified at 438 So.2d 543 (Fla. 4th DCA 1983)

      . See the underlying statutory basis; namely, section 733.107, Florida Statutes (1975), which provides:
      Burden of proof in contests. — In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation sought.

      . There is tenuous refuge, if any, in the old saw that even Homer sometimes nodded.

      .The rule provides:
      In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

      . Section 90.303 provides:
      Presumption affecting the burden of producing evidence defined. — In a civil action or proceeding, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence.


author: NIMMONS, Judge. SHIVERS, Judge, PER CURIAM.

text:
    David Thomas BUXTON, Appellant, v. STATE of Florida, Appellee.
    No. AZ-137.
    District Court of Appeal of Florida, First District.
    Oct. 2, 1984.
    Rehearing Denied Jan. 30, 1985.

      David Thomas Buxton, in pro. per.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

In this appeal from a denial, without hearing, of his Rule 3.850 motion, Buxton contends that he was entitled to postconviction relief because the trial court, in imposing sentence, failed to credit him for time which Buxton had spent in a Georgia jail on the Florida detainer while he was fighting extradition. We reject that contention on the authority of Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974), and Kronz v. State, 440 So.2d 49 (Fla. 1st DCA 1983). However, as in Kronz, we certify that our holding conflicts with Zulla v. State, 404 So.2d 202 (Fla. 2d DCA 1981), and Rehfuss v. State, 432 So.2d 639 (Fla. 4th DCA 1983).

Buxton also contends that he was entitled to relief because the trial court, in retaining jurisdiction pursuant to Section 947.16(3), Florida Statutes (1979), failed to state, either in writing or in open court, the justification for retention of jurisdiction as required by Section 947.16(3)(a). This is a ground which has been recognized as properly cognizable via a Rule 3.850 motion. See Snow v. State, 443 So.2d 1074 (Fla. 1st DCA 1984); Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981). The order denying Buxton’s 3.850 motion without hearing does not attach any portion of the record which refutes that allegation as required by Rule 3.850. Therefore, we remand the case to the trial court for further proceedings consistent with this opinion. In the event that the court denies the motion without hearing, the court will attach to its order those portions of the record which contain the justification for retention articulated by the court when the defendant was sentenced. However, if, when the defendant was sentenced, the trial court failed to state its justification for retention with particularity as required by Section 947.16(3)(a), the trial court is directed to either state the requisite justification or vacate the retention. See Saname v. State, 448 So.2d 14 (Fla. 1st DCA 1984).

With respect to the remaining grounds asserted in Buxton’s motion, we affirm the trial court’s order of denial.

Affirmed in part and reversed in part and remanded.

WENTWORTH, J., concurs;

SHIVERS, J., concurs specially.

SHIVERS, Judge,

concurring specially.

I concur in Judge Nimmons’ opinion, except to note that I agree with Zulla and favor receding from Kurlin and Kronz.

ON REHEARING

PER CURIAM.

The State has filed a motion for rehearing contending in part that neither of the issues raised by appellant in his motion for post-conviction relief and addressed in our opinion is properly cognizable via a Rule 3.850 motion. Appellee argues that the issues of credit for jail time served prior to sentencing and retention of jurisdiction without specified reasons involve procedural errors which could have been raised at trial and, if preserved, on direct appeal.

With regard to the retention of jurisdiction issue, appellee requests that we certify that the instant decision is in direct and express conflict with a decision of another district court of appeal on the same point of law. We recognize that our decision in this case conflicts with the Second District’s opinion in Pedroso v. State, 420 So.2d 908 (Fla. 2d DCA 1982), which holds that the trial court’s failure to state with particularity its reasons for retaining jurisdiction can be raised only on direct appeal. Accordingly, we certify this conflict to the Florida Supreme Court.

In view of the divergent views which appear to be emanating from the several district courts concerning the raising of alleged sentencing errors by direct appeal and Rule 3.850 motion, and the impact on the same by the Supreme Court’s decision in State v. Rhoden, 448 So.2d 1013 (Fla.1984), we certify, in addition to the question certified in our original opinion, the following questions to be of great public importance:

(1) Whether a trial court’s failure to credit a defendant with time spent in a Florida or foreign jail prior to sentencing may be raised by a Rule 3.850 motion, or must such be raised by direct appeal?
(2) Whether a trial court’s failure to state with particularity the reasons for retention of jurisdiction under Section 947.16, Florida Statutes, may be raised by a Rule 3.850 motion, or must such be raised by direct appeal?

Appellee’s motion for rehearing is denied as are appellee’s motion to rescind certification and motion to stay.

Appellant also has filed a motion for rehearing and an amended motion for rehearing, which we find to be without merit and deny.

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


author: DANAHY, Judge. PER CURIAM.

text:
    Bruce ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 84-465.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1984.
    Rehearing Denied Jan. 18, 1985.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The defendant was adjudicated guilty of certain charges against him and sentenced to a year and a day in custody with credit for sixty days for time served, to be followed by eighteen months’ community control and then by thirty months’ probation. He challenges his sentence on the ground that it is illegal in light of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). We agree and reverse.

We reject the state’s novel argument that because the defendant received sixty days’ credit for jail time, and this is to be subtracted from the one year and one day imprisonment, the difference is less than one year’s incarceration and thus there is no violation of Villery. Credit for time served does not change the sentence, which is a clear violation of the Villery rule.

Accordingly, we vacate the sentence imposed on the defendant and remand for correction of the sentence in accordance with Villery.

REVERSED AND REMANDED.

OTT, A.C.J., and CAMPBELL, J., concur.

ON MOTION FOR REHEARING

PER CURIAM.

This court has previously issued an opinion in this case holding that the defendant’s sentence violated the rule announced in Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). By motion for rehearing, the state has called our attention to section 921.187, Florida Statutes (1983), which provides in part as follows:

921.187 Disposition and sentencing; alternatives. — The following alternatives for the disposition of criminal cases shall be used in a manner which will best serve the needs of society, which will punish criminal offenders, and which will provide the opportunity for rehabilitation. A court may:
(7) Impose a split sentence whereby the offender is to be placed on probation upon completion of any specified period of such sentence, which period may include a term of years or less.

We agree with the state that the foregoing statutory provision abrogates the Villery rule. However, in this case the defendant’s offense was committed on June 26, 1982, and the statute was effective October 1, 1983. We agree with the decision of our sister court in Brown v. State, 460 So.2d 427 (Fla. 5th DCA 1984), that the statute may not be applied retroactively.

Accordingly, the motion for rehearing is DENIED.

OTT, A.C.J., and DANAHY and CAMPBELL, JJ., concur.


text:
    MANATEE COUNTY, a political subdivision of the State of Florida, Petitioner, v. LARKWOOD, INC., a Florida corporation, and Globe Oil Co., U.S.A., a Georgia corporation authorized to do business in Florida, Respondents.
    No. 84-1675.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1984.
    Ralph Artigliere and Charles T. Canady of Lane, Trohn, Clarke, Bertrand & Williams, P.A., Lakeland, for petitioner.
    Diane E. Billings of Schultz & Walsh, P.A., Bradenton, for respondents.
   PER CURIAM.

Petition for writ of certiorari denied. See Conetta v. City of Sarasota, 400 So.2d 1051 (Fla. 2d DCA 1981); City of Apopka v. Orange County, 299 So.2d 657 (Fla. 4th DCA 1974).

OTT, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.


text:
    Ellen H. JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 84-653.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1984.
    Michael R. Deminico, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Bass, 451 So.2d 986 (Fla. 2d DCA 1984).

BOARDMAN, A.C.J., and SCHEB and OTT, JJ., concur.