author: GLICKSTEIN, Judge. GLICKSTEIN, Judge.

text:
    STATE of Florida, Petitioner, v. Hooshang KADIVAR, Respondent.
    No. 84-1356.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Jan. 9, 1985.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for petitioner.
    R.M. Bernhardt, Atlanta, Ga., and Ernon N. Sidaway, Fort Pierce, for respondent.
   GLICKSTEIN, Judge.

This is a petition for writ of common law certiorari by the state, seeking review of an order of the St. Lucie County Circuit Court disqualifying that county’s entire state attorney’s office professional staff from representing the state in the circuit court case involving respondent. We grant the petition and quash the order.

The facts show that respondent pled nolo contendere, in the county court, to charges of committing a lewd and lascivious act upon another and of battery. About six months later, respondent moved to vacate judgment and sentence and to withdraw his nolo contendere pleas. Respondent’s motion was dismissed and his later motion for rehearing was denied. Still later, his motion for reconsideration was granted; and he was granted his motion to withdraw his nolo pleas. The state filed a motion for reconsideration of the county court’s reversal of its two prior rulings. The county court granted the state’s motion for reconsideration and rescinded its order allowing respondent to withdraw his nolo pleas. Thereupon respondent filed a petition for writ of common law certiorari in the circuit court for review of the county court’s order granting reconsideration to the state.

Respondent later moved to disqualify the four attorneys employed in the state attorney’s office on the ground that, because respondent had filed a 42 United States Code Section 1983 action against them in Federal court, their involvement in the case before the circuit court would present an appearance of impropriety. The circuit court granted respondent’s motion and requested the Governor to appoint a special prosecutor; whereupon the state filed this petition. The issue is whether the circuit court departed from the essential requirements of law when it disqualified the entire Nineteenth Judicial Circuit state attorney’s office professional staff from representing the state in the case brought by the respondent into the circuit court. We conclude that it did.

Respondent contends the issue is moot, because the Governor has appointed the state attorney of the Seventeenth Judicial Circuit to represent the state in the proceedings in the county and circuit courts. The Governor’s order to this effect is not in the record, respondent’s counsel claiming inability to locate a copy of the order in the trial court clerk’s office.

While the issue may indeed be moot as between these parties, we choose to determine whether the trial court departed from the essential requirements of law by disqualifying the entire state attorney staff of the circuit because the defendant had mounted a civil action against them. We elect to do so because the workings of the justice system may take a novel turn all over the state if such disqualification on this ground, without even a rudimentary evidentiary showing that those attorneys’ personal interest in this prosecution diverges prejudicially from the state’s interest in fair dispensation of justice, is not found to be improper. The matter is of substantial public interest, and guidance is needed for the future. See Times Publishing Company v. Burke, 375 So.2d 297 (Fla. 2d DCA 1979).

The reasoning presented to the circuit court by respondent’s counsel and adopted by that court in the order to be reviewed was that because state attorneys are quasi-judicial officers, there would be an appearance of impropriety because these attorneys might not be impartial. There were citations to Florida Code of Professional Responsibility Ethical Considerations 7-13, 7-14, 7-33 and 7-34. In argument at the hearing, respondent’s counsel analogized to the recusal of judges when, as also occurred here, a party before the court was suing those judges.

There is a clear rule in the Florida Code of Judicial Conduct that a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Canon 3C. A judge must be impartial and even-handed in treating the parties before him, because of his role as arbiter between the adversaries and, in jury trials, of making sure the jury understands the facts and the law and does not receive impermissible evidence or arguments. The role of a prosecutor in our adversarial system is not one requiring impartiality. The prosecutor is not to use unprofessional tactics when before a tribunal; is not to institute criminal charges without probable cause, and must share information with defense counsel that may be of assistance to the defense. See Florida Code of Professional Responsibility Disciplinary Rules 7-104 and 7-106. There are further ethical principles by which a prosecutor, like any other attorney, must abide. But because there is an impartial judge presiding, there is a built-in safeguard in any proceeding should the prosecutor cross the bounds of professional ethics and responsibility. A lawyer may not represent a client with whom he has a conflict of interest, except in some cases upon full disclosure and intelligent acquiescence of the client, see Canon 5, and should zealously represent his client within the bounds of the law, Canon 7. Canon 9 does provide that a lawyer should avoid even the appearance of professional impropriety, but the ethical considerations and disciplinary rules under that Canon, or anywhere else in the Code, do not suggest that a lawyer being sued by his client’s adversary would appear to act improperly if he continued to represent his client against that adversary. A prosecutor is the state’s lawyer in a criminal case much as another attorney may be the plaintiff’s lawyer in a civil case. What conflict is there between the state’s interest and the prosecutor’s personal interest if the criminal defendant is contemporaneously suing the prosecutor? There could be, but it is not present a priori. What contingency could conceivably arise that the presiding judge could not handle, if an appearance of impropriety became evident? In the instant case, it is not suggested, for example, that without probable cause the prosecutor undertook a criminal prosecution of respondent after respondent instituted a suit against the prosecutor. The time sequence is quite the reverse, and respondent’s nolo pleas — even though he has since sought to withdraw them — suggest there was probable cause.

As to particular ethical considerations cited by respondent and in the circuit court’s order, any relation between them and the facts and circumstances precipitating the order is remote if it exists. EC 7-13, which comes closest to bearing on the instant facts, calls on the prosecutor to seek justice, not merely to convict. As indicated before, however, if there is any conduct at trial not consonant with this, the judge can discipline counsel and, if there is a jury, make needed amends. The remaining three ethical considerations mentioned in the order concern instituting or continuing litigation that is unfair — again the nolo plea makes this unlikely; handouts to the media of information or comments that could influence judge or jury, and acceptance of gifts or loans.

While there is no case law in Florida directly on point, we can envisage situations wherein EC 7-13 would demand disqualification of the prosecutor. For example, in circumstances otherwise similar to the present ones, if the defendant produced evidence that the prosecutor was continuing a prosecution vindictively, the prosecutor might well properly be disqualified.

We have located foreign authorities which, although not directly on point, can shed light on the issue that confronts us. Although the court order here under review refers specifically only to some ethical considerations under Canon 7, the concern about an appearance of impropriety obviously goes to Canon 9. In that regard the Hawaii Supreme Court has written, by way of dictum:

[W]e find it necessary to observe that unless the Code’s disciplinary rules require it, the mere appearance of impropriety will not always require the disqualification of an attorney, for counterbalancing it is the Code’s own requirement that “[wjhile a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be understood or may tend to subject him or the legal profession to criticism.” Canon 9, Code of Professional Responsibility, Exhibit A to Rule 16 of the Rules of the Supreme Court of Hawaii. Canon 9 was not intended to serve as a sweeping basis for the disqualification of attorneys who are otherwise free of potential conflicts of interest....
Neither was it designed to provide a convenient refuge for the timid practitioner or to serve as an excuse for the public servant to avoid the performance of an unpleasant duty.

Sapienza v. Hayashi, 57 Hawaii 289, 295, 554 P.2d 1131, 1136 (1976) (citations omitted). To this we would add, nor is Canon 9 designed as a shield that a defendant may turn into a sword for impeding the wheels of justice, or a rasp to wear them down so they will be ineffectual against him.

What sort of personal interest of the prosecutor justifies his disqualification? In State v. Cox, 246 La. 748, 167 So.2d 352 (1964), there were two charges of criminal defamation against the defendant, both arising from the same facts and circumstances. The prosecutor recused himself from the case where he had himself allegedly been defamed, but not from the case where defamation of a judge was the charge. The Louisiana high court held the prosecutor should have been recused also from the latter prosecution, saying when a district attorney is personally interested in gaining a conviction, his interest is adverse to that of the state (his client), which is interested in equal and impartial justice only, and not in a conviction as such.

In State v. Snyder, 256 La. 601, 237 So.2d 392 (1970), the same court held a prosecutor who had made derogatory statements about the realtor and actively campaigned against him in a political contest because of an admitted strong personal animosity should have been disqualified. The court said there was a fair preponderance of evidence of the district attorney’s personal interest in the cause which was in conflict with fair and impartial administration of justice. This test came in part from an explicit provision in Louisiana’s code of criminal procedure. Though we find no such provision in Florida’s Rules of Criminal Procedure, the test seems appropriate for the instant case. To us, the key element of the test, expressed by the Snyder court, is the presence of a fair preponderance of evidence of the conflict between the prosecutor’s personal interest and the state’s interest. Merely asserting that there is such a conflict does not make it so. The Colorado Supreme Court in a disqualification case stated the standard is that “the allegations of interest must show concern in the outcome of the matter such that the district attorney will either reap some benefit or suffer some disadvantage; mere partiality will not suffice.” People ex rel. LoSavio v. Gentry, 199 Colo. 153, 160, 606 P.2d 57, 62 (1980).

For what they may be worth, we offer two- examples of cases in which the prosecutors’ interests did not justify their disqualification. Where the prosecutor was a director of the bank, he and his assistants were not disqualified to prosecute the case, because there was no evidence the bank was in any way connected with the transactions involved in the prosecution. Donald v. State, 453 S.W.2d 825 (Tex.Crim.App.1969). And, the fact the prosecuting attorney was counsel for the bank, a depositor there, and both personally and politically associated with bank officials, did not disqualify him from prosecuting the defendant for bank robbery. Garton v. State, 454 S.W.2d 522 (Mo.1970).

Combining the observations, quoted above, of the Hawaii supreme court with the standards expressed in other cited cases, and taking into account the nightmare that could seize the criminal justice system if the faintest appearance of impropriety could result in prosecutorial disqualification, we hold the circuit court departed from the essential requirements of law when it accepted as sufficient evidence of grounds for disqualification the affidavits of respondent’s wife and counsel that they had filed a 42 United States Code Section 1983 action against the prosecutors, plus mere argument, by respondent’s counsel, revolving around ethical considerations, and not disciplinary rules, of the Florida Code of Professional Responsibility. A more adequate showing of divergence between the personal interests of the prosecutors and the state’s interest in even-handed justice was required.

ANSTEAD, C.J., and WALDEN, J., concur.

ON MOTION FOR REHEARING

GLICKSTEIN, Judge.

In seeking rehearing of our opinion in State v. Kadivar, 460 So.2d 391 (Fla. 4th DCA 1984), respondent correctly points out that a prosecutor has certain ethical obligations that differ from those of the private practitioner. A prosecutor should disclose to the accused evidence that would lessen the guilt, mitigate the offense or reduce the punishment, and should not fail to pursue evidence that may damage his case or aid the case of the accused. Recognition and discussion of this distinction between prosecutorial and private practice responsibilities might have considerably enhanced our opinion.

However, the subject of the state’s petition in this case — the trial court’s disqualification of the entire state attorney’s office — was not the result of even a preliminary showing that any of the above prose-cutorial responsibilities had been neglected. Rather, the disqualification was based on an appearance of impropriety that could derive from unsupported allegations contained in a claim respondent filed in federal court. Respondent’s motion fails to show that our opinion went astray because we overlooked or misapprehended applicable law.

Rehearing is denied.

ANSTEAD, C.J., and WALDEN, J„ concur.


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    Richard TURNER, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 83-1182.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    Rehearing Denied Dec. 18, 1984.
    Kenneth M. Meer, of Law Offices of Thomas V. Infantino, Winter Park, for appellant.
    Douglas A. Shropshire, Dept, of Professional Regulation, Tallahassee, for appel-lee.
   DAUKSCH, Judge.

This is an appeal from an order of the Department of Professional Regulation which revoked appellant’s license as a construction contractor.

Notwithstanding the clear and sound ruling of the Fourth District Court of Appeal in Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982), the Department chose to disregard the statutory mandate requiring a meaningful probable cause determination before proceeding further toward license revocation. § 455.225(3), Fla.Stat. (1983).

The position of the Department in this appeal is most confrontational. First, this executive body failed to follow a legislative (statutory) requirement and then failed to honor a judicial (Kibler) interpretation and mandate. It makes no excuse for not following the statute — it merely argues the appellant failed to prove it did not. Appellant properly sought discovery of the probable cause proceedings. The appellee furnished something in response. What was furnished was no better than what was in Kibler. So, either the Department did not perform its duty as required by statute and Kibler or it has not furnished the entire record to appellant and this court; violating the law, or stonewalling, or both.

The Department likewise makes no excuse for not following Kibler. First, in its brief it says appellant never tried to obtain the transcript of the proceedings. Yet in the record before us we find a request for the composition of the probable cause panel and a request for a copy of the findings and evaluation of the probable cause panel. The Department in response furnished a transcript of the panel’s proceedings. Speaking directly about Kibler the Department sees fit to comment

It has only been cited twice so far, and neither of those two cases elaborate substantively on the Kibler rationale. See Beckum v. DPR, 427 So.2d 27[6] (Fla. 1st DCA 1983); Dikiempis [sic] v. DPR, 421 So.2d 693 (Fla. 2d DCA 1982). Kibler therefore is not the last word on the subject of probable cause proceedings, but only the first word. The full parameters [sic] of Kibler have yet to be drawn by Florida’s courts.

No person, be he a government official or a private individual should ignore a court ruling, no matter how much he may disagree. If aggrieved he should appeal. For this government body to take the position that more courts need to rule on a statute or another legal matter before it will comply is violative of all basic principles of the separation of powers under which this republic has chosen to live.

We agree with Kibler and adopt its reasoning here. The order appealed is reversed and this cause is remanded to the department to begin again with the processing of this matter, following all statutory requirements and affording all rights to its licensee.

REVERSED and REMANDED.

FRANK D. UPCHURCH and COWART, JJ., concur.


author:
MILLS, Judge.
      ERVIN, Chief Judge,

text:
    Robert M. MINCEY, Appellant, v. STATE of Florida, Appellee.
    No. AW-299.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Rehearing Denied Dec. 4, 1984.

      Michael Allen, Public Defender, David A. Davis, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Mincey appeals from two concurrent 25-year prison sentences. He raises three issues on appeal. We find each issue merit-less and affirm.

Mincey was charged with committing two robberies with a firearm, the first on 30 April 1983 and the second on 3 May 1983. He pleaded guilty to both offenses and affirmatively selected sentencing pursuant to Florida Rule of Criminal Procedure 3.701. The recommended range under the sentencing guidelines was 3V2 to 4½ years incarceration.

At the sentencing hearing, the trial court departed from the recommended range and sentenced Mincey to two concurrent 25-year prison terms. The reasons for departure were stated in a written document.

The first issue raised is whether the sentencing procedure followed by the trial court violated the due process provisions of Article I, Section 9 of the Florida Constitution and Amendments V and XIV of the United States Constitution. Mincey contends the sentencing guidelines enhance a defendant’s liberty interest to the extent traditional sentencing procedure no longer provides adequate due process protections. He argues the trial court must inform a defendant prior to the sentencing hearing that it intends to exceed the recommended range and the reasons therefor. Only in this manner, Mincey argues, will a defendant have the opportunity to effectively contest imposition of a sentence beyond the recommended range.

We reject this contention because imposition of any sentence within the statutory limit, whether or not the sentence exceeds the recommended range, is still a matter within the trial court’s discretion. Florida Rule of Criminal Procedure 3.701(b)(6). Of course, that discretion is subject to the “clear and convincing” standard, but it does not follow that a defendant is therefore entitled to the full panoply of due process rights every time a trial court announces it intends to aggravate a sentence beyond the recommended range. See, Arnett v. State, 397 So.2d 330 (Fla.1st DCA 1981), cert. denied, 408 So.2d 1092 (Fla.1981).

Arnett involved a challenge to the constitutionality of Section 947.16(3), Florida Statutes (1979), which allows the trial court to retain jurisdiction over some offenders for review of a Parole Commission release order. One of the arguments advanced was that the statute violated due process requirements because it did not provide for notice of proceedings to retain jurisdiction or for a hearing to defend against retention. The court stated:

The statute itself provides the defendant adequate notice that the trial court judge may retain jurisdiction. An opportunity to defend against retention is provided by the right to offer “submissions and evidence ... which are relevant to the sentence” at the sentencing hearing. Fla.R.Crim.P. 3.720(b).

397 So.2d at 332.

Likewise, Rule 3.701 provides notice to defendants that the trial court may depart from the recommended range. In the case before us, the record also reflects Mincey was informed at the time he entered his pleas of guilty, 13 days before the sentencing hearing, that the trial court could depart from the recommended range and impose a more severe sentence. Mincey had the opportunity to argue against aggravation of the sentences pursuant to Rule 3.720(b).

The second issue raised is whether the reasons given by the trial court for departure from the recommended range are clear and convincing. This issue is appealable as a matter of right. Mitchell v. State, 458 So.2d 10 (Fla.1st DCA 1984).

The reasons for departure are:

1. The Defendant committed and plead guilty to two Armed Robbery which were committed within a four-day period on two separate business establishments in Duval County, Florida.
2. In each instance, he had a accomplice and in each case was armed with a shotgun and’ a revolver.
3. At the time of the robberies in each instance the Defendant and his companion actively participated in the threatening of the victims with death or great bodily harm. The Defendant manifested a real presence of immediate danger, particularly in Case Number 83-4557-CF, where he ordered the sole female clerk of the liquor store to lie on the floor as they threatened to kill her.
4. The robbery committed in the instance of Case Number 83-4557-CF, was carried out after an inside employee intentionally or inadvertently furnished information to the Defendant and his companion as to when would be the most conducive time to stage a successful robbery, particularly when the clerk would be least busy and alone.
5. The Defendant and his companion had the apparent ability to carry out all threats made.
6. The Sentencing Guidelines recommendation of 3V2 to 47⅛ years state prison is manifestly not sufficient to provide the appropriate retribution, deterrence, or time for rehabilitation of the Defendant.

Reason 1 concerns the times and places of the offenses, both permissible considerations. Swain v. State, 455 So.2d 533, (Fla. 1st DCA 1984); Manning v. State, 452 So.2d 136 (Fla.1st DCA 1984). Reasons 2, 3, and 5 concern the amount of force used or threatened. In support thereof, see Smith v. State, 454 So.2d 90 (Fla.2d DCA 1984). Reasons 4 and 6 also reflect permissible considerations. Williams v. State, 454 So.2d 751 (Fla.1st DCA 1984).

Given the facts of this case, these reasons are clear and convincing. The trial court did not abuse its discretion.

As the final issue raised on appeal, Min-cey contends the sentences imposed violate the constitutional prohibition against cruel and unusual punishment. We reject this contention. Robbery with a firearm is a serious offense, and the sentences imposed are within the statutory limit.

AFFIRMED.

ZEHMER, J., concurs.

ERVIN, C.J., concurs specially with an opinion, in which ZEHMER, J., concurs.

ERVIN, Chief Judge,

specially concurring.

I concur with the majority in its holding that a defendant is not constitutionally entitled to notice before sentencing proceedings that the court intends to exceed the range recommended in the guidelines. In the case at bar the court informed the defendant that it would not be bound by any plea agreement relating to the defendant’s selection of guideline sentencing and that it could, if it desired, deviate from the recommended maximum range but that if it did so, it was required to place its reasons in writing. This, I think, is sufficient notice to a defendant that the court may deviate from a recommended sentence.

In concurring in the result reached, I wish to state that we are not confronted with any issue relating to whether the defendant knowingly or intelligently entered a plea of guilty to the crime charged or whether there was any violation of a plea bargained agreement. Such facts might present a different result. Cf. State v. Green, 421 So.2d 508 (Fla.1982). I otherwise concur with the remaining portions of the majority’s opinion.


author: MILLS, Judge. ERVIN, Chief Judge,

text:
    ST. JOE PAPER COMPANY, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. AY-114.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Rehearing Denied Jan. 3, 1985.

      John S. Ball and James H. Sheehan of Sheehan & Ball, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Barbara Staros Harmon, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

St. Joe Paper Company (St. Joe) appeals from a final order holding that it is not entitled to interest on the overpayment of its corporate income tax for 1976 under Section 214.14, Florida Statutes (1983). We reverse.

St. Joe filed its corporate income tax return for calendar year 1976 with the Department of Revenue (Department) on 23 September 1977. The company was subsequently audited by the Internal Revenue Service (IRS) for calendar years 1972 through 1977. This audit resulted in adjustments to St. Joe’s taxable income, revealing an overpayment of its corporate tax in 1976 and underpayments of the tax for each year from 1972 through 1975 and 1977. Section 220.23(2), Florida Statutes (1983), requires a taxpayer to notify the Department when an IRS audit results in adjustment of income subject to the corporate tax. St. Joe filed amended returns for 1972 through 1977 on 8 October 1982.

With these amended returns, St. Joe included a check in payment of the 1972-1975 and 1977 tax deficiencies. It computed the amount by totaling the deficiencies and deducting the 1976 overpayment. St. Joe also computed the total interest it owed on the deficiencies, deducted the interest which it claimed was owed to it for the overpayment and remitted that amount as well. The Department did not object to St. Joe’s method of computing the net tax owed, but did require payment of the amount of interest St. Joe had deducted from the interest it owed. St. Joe paid the required amount, but filed a claim for refund. The Department denied the claim stating that the “offset of deficiency and overpayment is not recognized when computing interest.” Noting further that St. Joe had claimed credit for the overpayment by deducting it from the deficiencies owed, the Department found that “the 1976 refund would be deemed to have been made within the nine-month period required under Florida Statute § 214.14.”

St. Joe then initiated a proceeding under Section 120.57(1), Florida Statutes (1983). The hearing officer noted that Section 214.-14 required the Department to pay interest on overpayments, “except that if any overpayment is refunded within 9 months after the last date prescribed for filing the return of such tax or within 9 months after the return was filed, whichever is later, no interest shall be allowed.” (Emphasis supplied)

St. Joe contended that “the return” meant its original return, due 1 October 1977; because more than nine months had passed since that date without a refund, the Department owed it interest. The Department countered that “the return” encompassed the amended return filed by St. Joe after the Internal Revenue Service audit and that the nine-month period did not begin until that amended return was filed; because St. Joe received the refund immediately upon filing the amended return, no • interest was due thereon.

The hearing officer adopted St. Joe’s position finding: 1) Section 214.14 refers only to “the return”; if that phrase was intended to include “amended return,” the Legislature could have said so; 2) even if the Department’s interpretation was plausible, it was a nonrule policy, unsupported by rule or precedent; and 3) the Department’s reasoning would result in the inequitable situation wherein a taxpayer would owe interest on deficiencies discovered by audit, but would not be entitled to receive interest if overpayments were revealed. A recommended order was then issued holding that St. Joe was entitled to be credited with the appropriate interest on the 1976 overpayment and that its application for refund should be granted. The Final Order of 16 February 1984 rejected the recommended order and concluded St. Joe was not entitled to the refund. The Department based its order on three factors: 1) the Legislature provided the nine-month period in Section 214.14 to allow the Department to examine a return to determine the presence of an overpayment; under St. Joe’s reasoning, the Department would have to pay interest without any examination if the audit was concluded after the nine-month period; 2) St. Joe’s overpayment was not apparent from the original return, therefore the Department did not receive notice of it until the amended return was filed more than nine months after the original return; 3) the request for refund was not filed within three years of the filing of the return, and hence was not timely, Section 214.16(l)(a); and 4) since St. Joe claimed the refund and took credit for it simultaneously, the Department never had to act on the claim and the nine months never began to run.

St. Joe maintains its position on appeal, i.e., that “the return” in Section 214.14 means the original return, in this case the one filed on 23 September 1977. It argues first that the statute as a whole evinces a legislative intent to pay interest on a taxpayer’s overpayment, if it is not refunded within nine months; here, the Department has been in possession and had the use of St. Joe’s overpayment for five years. Elsewhere in the chapter, St. Joe points out Section 220.31, which provides that every taxpayer required to file “a return under this code or a notification under s. 220.-23(2) [Florida Statutes (1983)]” shall pay any tax due “on or before the date fixed for filing such return or notification.” It argues that this highlights the difference between a return and the notification it filed; if notification under Section 220.23(2) is the equivalent of the return, as the Department argues, it should not be able to collect interest on the deficiencies because St. Joe paid the tax it owed “on or before the date fixed for filing such ... notification.” Section 220.31. St. Joe rebuts the Department’s assertion of untimeliness by pointing out Section 220.23(2)(d), Florida Statutes (1983), which gives a taxpayer two years after the filing of Section 220.23 notification in which to file a claim for refund, “any other provision in Part I of Chapter 214 notwithstanding.” If “the return” of Section 214.14 includes Section 220.23 notification, as the Department contends, Section 220.23(2)(d) is superfluous since in that case such notification would itself restart the three-year limitations period of Section 214.16.

The Department makes three basic arguments against St. Joe’s interpretation of Section 214.14: 1) it deprives the Department of the nine months for review of the return which the Legislature intended it should have: 2) it ignores the nature of Section 214.14 as a notice statute, i.e., that the statute was designed so that the nine month period would not commence until the Department received notice of the overpayment; and 3) the meaning of “the return” is ambiguous and, because it authorizes the payment of interest, in derogation of the State’s sovereignty, should be strictly construed in the Department’s favor, i.e., their argument, not St. Joe’s, should be adopted.

Addressing the latter contention first, the Department argues that the statute is ambiguous and that the court has a duty to construe it favorably to the State. However, construction of a statute is not necessary when the language is both clear and reasonable and logical in its operation. In such a case, the court should not search for excuses to give a different meaning to words used in the statute. Vocelle v. Knight Brothers Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960); Wald v. Sarasota Co. Health Facilities Authority, 360 So.2d 763, 770 (Fla.1978). In Section 214.14, the Legislature has mandated that interest be allowed and paid “upon any overpayment in respect of a tax made subject to this chapter, except that if any overpayment is refunded within nine months after the last date prescribed for filing the return of such tax ... or within nine months after the return was filed, whichever is later, no interest shall be allowed....” (Emphasis supplied) Here, by its use of the article “the,” the statute clearly contemplates a single tax return, not the multiple returns suggested by the Department; further, the overpayment referred to occurs when the initial return and payment are filed. Therefore, “the return of such tax” can only refer to the initial return and payment. The Department’s interpretation would require the court to add the word “amended” to Section 214.14, and it is axiomatic that the court is not free to add words to steer a statute to a meaning which its plain wording does not supply. James Talcott, Inc. v. Bank of Miami Beach, 143 So.2d 657 (Fla. 3d DCA 1962). Therefore, because we find that the meaning of the statute in question is clear on its face, it is unnecessary to apply to it the strict construction principles for which the Department argues.

It is not only the plain language of the statute which supports St. Joe’s interpretation of Section 214.14. It does not appear to be the case that the nine-month' grace period provided in Section 214.14 is for purposes of review of the return, as the Department argues. That period can properly be circumvented in circumstances where no amended return is filed. Section 214.16(l)(a), Florida Statutes (1983), provides that a taxpayer shall have three years from the filing of the return in which to file a claim for refund; therefore, a claim filed after the nine-month period but before the 3-year limitation is acceptable. In that situation, the only return filed is the original return; the Department does not argue that a claim for refund is a return within Section 214.14. Therefore, the Legislature itself has created a situation wherein the nine-month period can legitimately be avoided, without the filing of any return but the original. It clearly would not have done so had it intended that the nine months of Section 214.14 be an inviolable review period. Therefore, it is no argument against St. Joe’s interpretation to say it deprives the Department of the opportunity for review.

With regard to the department’s contention that Section 214.14 is a notice statute, this court recently held in R.J. Reynolds Tobacco Co. v. Department of Revenue and Office of the Comptroller, 455 So.2d 524 (Fla. 1st DCA 1984), that there was “no support for DOR’s ‘notice’ interpretation of Section 214.14.” Id. at 524. In that case, there was no dispute over entitlement to interest, but only on the issue of when that interest began to accrue; at the time of the payment of the tax, or when the Department received notice that an overpayment had been made. The court rejected the Department’s notice argument, and found that the interest began accruing from the dates the tax was actually paid, because “these are the dates from which DOR actually had use of the overpayment.” Id. at 524 (Emphasis supplied)

Therefore, even though the facts are dissimilar to those herein, the court’s holdings are still significant to this case: 1) Section 214.14 is not a notice statute; the Department’s obligations thereunder do not depend on its knowledge that an overpayment has been made, and 2) the length of time which the Department has use of the overpayment is a key consideration with regard to the payment of interest. We must, therefore, reject as immaterial the Department’s argument that it did not know of the overpayment until the amended return was filed, more than nine months after the original return and payment were made. Further, the Department had the use of St. Joe’s money from the date it was originally paid, i.e., 23 September 1977; under Reynolds, it is from this date that interest owed by the Department begins to accrue, not from the receipt of notice of an overpayment.

Based on the foregoing, the final order of the Department of Revenue is reversed and the cause is remanded with instructions to refund the amount of interest due on St. Joe’s overpayment of its 1976 corporate income tax computed at the statutory rate of 6% per year, dating from the last date prescribed for filing the return herein, 1 October 1977.

St. Joe’s motion for attorney’s fees is denied.

ZEHMER, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that Section 214.14, Florida Statutes, is clear on its face and can only apply to original — as opposed to amended returns. The majority reasons that because the legislature employed the article “the”, that only one single tax return was contemplated; therefore the overpayment referred to in section 214.14 occurs when the initial return and payment are filed. The department suggests another interpretation, arguably one less plausible than that advanced by the majority, but surely within the range of permissible interpretations: that the portion of section 214.14, referring to the refundment of an overpayment within nine months after the last date prescribed for filing the return, applies to original returns, in that section 220.222 specifies the dates that corporate income tax returns must be filed, but that the provision of section 214.14, providing that no interest shall be paid if the refund is granted “within nine months after the return was filed,” contemplates amended returns — not initial returns — because no specific dates are prescribed for the filing of amended returns under the applicable taxing statutes. As the department points out, an amended return may be generated in several ways. One such way occurs when — as here — the taxpayer is subjected to a federal tax audit and, under the provisions of section 220.23(2)(a), notifies “the department of such adjustment by filing either an amended return or such other report as the department may by regulation prescribe, _” (e.s.) In the case at bar the taxpayer filed amended returns in 1982 for the taxable years 1972-1977. The amended return, as it applied to the year 1976, reflected an overpayment in the original return which had been filed in 1977.

Once again this court is confronted with the question of which entity or person has the responsibility to interpret a regulatory statute: a hearing officer assigned by the Division of Administrative Hearings, an Article V court or the administrative agency charged with the law’s enforcement. This court has on more than one occasion held that agencies are afforded wide discretion in the interpretation of statutes which they are empowered to administer and their interpretations will not be overturned on appeal unless clearly erroneous. Moreover courts will defer to any administrative interpretation within the range of possible interpretations. State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984). Narrowing the rules of statutory construction to taxing statutes, the general rule is that taxing statutes conferring authority to impose taxes must be strictly construed strongly against the government, and liberally in favor of the taxpayer. State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1973); United States Gypsum Co. v. Green, 110 So.2d 409 (Fla.1959); State Department of Revenue v. Anderson, 403 So.2d 397 (Fla.1981); Wanda Marine Corporation v. State, Department of Revenue, 305 So.2d 65 (Fla. 1st DCA 1974). On the other hand, constructions of exceptions, exemptions or benefits from taxation are strictly applied against the taxpayer. Id.

I think it is obvious, unless we are prepared to say that the statute in question is free from any reasonable interpretation, that we must consider section 214.14, because it authorizes the government to pay interest on overpayments made by the taxpayer, in derogation of sovereignty and therefore strictly construe it against the taxpayer. At common law, there was no right to a refund from the sovereign; as a result, in the absence of a statute authorizing a refund, a refund of taxes could not be allowed unless the taxpayer could demonstrate that the tax was paid involuntarily or compulsorily. See North Miami v. Seaway Corporation, 151 Fla. 301, 9 So.2d 705 (1942); State ex rel. Victor Chemical Works v. Gay, 74 So.2d 560, 562 (Fla.1954). Indeed, in State of Florida ex rel. Four-Fifty Two-Thirty Corporation v. Dickinson, 322 So.2d 525 (Fla.1975), the supreme court was confronted with a question concerning whether a taxpayer should be permitted interest on refunds of tax overpay-ments, and the court, after construing certain provisions of the taxing statute, commented that because the statute did not provide for the payment of interest, no interest could be permitted.

If I understand the position of the majority correctly, it holds, solely by looking to the provisions of sections 214.14 and 214.-16(l)(a)^the three-year limitation period for filing a refund — that the legislature contemplated a situation wherein a claim filed after the nine-month grace period, but before the expiration of the three-year period, would nevertheless require the payment of interest. For example, if a taxpayer applied for a refund two years and eleven months after filing his initial return, he would still be entitled to interest, notwithstanding the department’s prior lack of notice, because more than nine months had expired from the date the return was filed. The difficulty I have with the majority’s consideration of only the above two statutes is that in the case at bar more than three years had expired from the date the taxpayer filed its original return (1977), and the date that it applied for a refund (1982). If the three-year period provided for in section 214.16(l)(a) were solely applicable to initial returns, St. Joe would be entitled neither to a refund nor to interest. The taxpayer, however, has argued, and I agree, that the time for filing a refund claim is extended by the provisions of section 220.23(2)(d), providing that “when notification of an adjustment is required ..., a claim for refund may be filed within 2 years after the date on which such notification was due, ... notwithstanding any other provision contained in part I of chapter 21k.” (e.s.) Because section 220.-23(2)(d) provides the only authorization permitting a federally audited taxpayer to file a claim for a refund after the passage of three years from the filing of an original return, in my judgment the provisions of sections 220.23 and 214.14 and 214.16(l)(a) should be read in pari materia with one another, thereby validating the department’s interpretation that section 214.14 does not require the payment of interest until nine months have followed the filing of an amended return. Thus, if the time period for filing an amended return or' claim for refund is extended two years following notification of an overpayment, in my judgment the following statutory interpretations could permissibly be applied: (1) That the taxpayer has only two years following the notification to file his amended return or claim for refund, or (2) that if the amended return is filed within two years following the notification, the claim for refund, by reading the provisions of section 214.16(l)(a) in pari materia with those of section 220.23(2)(d), may be filed within three years after the filing of the amended return.

Being of the view that the above interpretations may be permissibly inferred from the statutes under consideration, I would therefore conclude that the legislature must have reasonably contemplated that interest would be payable only after the expiration of nine months following the filing of an amended return, when such return was caused by notification to the taxpayer that an overpayment of taxes had previously been made.

R.J. Reynolds Tobacco Co. v. Department of Revenue and Office of the Comp troller, 455 So.2d 524 (Fla. 1st DCA 1984), alluded to by the majority, is inapplicable to the case before us insofar as the issue relates to whether section 214.14 applies to both original and amended returns. R.J. Reynolds rejected the department’s argument that interest on overpayments accrues only from the date the department receives notice of the overpayment, but it did not address the question of whether interest could properly run before the expiration of nine months after the filing of an amended return.

In that the construction placed upon the statute by the agency authorized to regulate the subject involved was not clearly erroneous, I would affirm. I agree, however, that St. Joe’s motion for attorney’s fees should be denied.


author: PER CURIAM.

text:
    DON LUIGI’S RISTORANTE, INC., Appellant/Cross Appellee, v. INDEPENDENT FIRE INSURANCE COMPANY, Appellee/Cross Appellant.
    No. 83-2032.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearings Denied Jan. 10, 1985.
    James A. Bonfiglio, West Palm Beach, for appellant/cross appellee.
    R. Fred Lewis of Magill Reid & Lewis, Miami, for appellee/cross appellant.
   PER CURIAM.

Appellant’s business was destroyed by fire and it sued its fire insurance carrier for damages. The case was tried before a jury. It returned a verdict in favor of appellant. Appellant was dissatisfied with the dollar amount of the verdict and it sought a new trial on the issue of damages in the trial court and here in this appeal. The carrier cross appeals the award of prejudgment interest to appellant.

As an aside, we affirm the award of attorney’s fees to appellant. The amount was well within the discretion of the trial court upon consideration of the appropriate criteria. Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977).

As to damages, each party produced expert witnesses and detailed appraisals as to the amount of damages suffered by appellant. The amount awarded was for less than the appraisals produced by the carrier and, of course, greatly less than the appellant’s appraisal. From a detailed survey, it does not appear from the record that there was any legal explanation or justification for the jury to award less than the sums testified to by the carrier’s experts for which it vouched. We reverse the award of damages and remand for a new trial on that sole issue. See Dade County v. Renedo, 147 So.2d 313 (Fla.1962); Anderson v. Chirogianis, 384 So.2d 1289 (Fla. 5th DCA 1980); and Canal Authority v. Ocala Manufacturing Ice & Packing Co., 253 So.2d 495 (Fla. 1st DCA 1971).

As to the award of prejudgment interest it must be vacated without prejudice due to the fact that the damage issue must be re-tried. We do record our view that the interest question is governed by English & American Insurance Co. v. Swain Groves, Inc., 218 So.2d 453 (Fla. 4th DCA 1969); Broward County v. Sattler, 400 So.2d 1031 (Fla. 4th DCA 1981); Jockey Club, Inc. v. Bleemer, Levine & Associates Architects & Designers, Inc., 413 So.2d 433 (Fla. 3d DCA 1982); Bergen Brunswig Corp. v. State, Dept. of Health & Rehabilitative Services, 415 So.2d 765 (Fla. 1st DCA 1982).

Reversed in part; affirmed in part; and remanded for new trial on damages only.

WALDEN and BARKETT, JJ., and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    PALM BEACH NEWSPAPERS, INC., Petitioner, v. John DOE, a witness before a Grand Jury, and State of Florida, Respondents.
    No. 83-2105.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Jan. 9, 1985.

      Donald M. Middlebrooks, L. Martin Reed-er, Jr., and Thomas R. Julin of Steel Hector Davis Burns & Middleton, Palm Beach, for petitioner.
    Richard E. Gerstein and Paul M. Rash-kind of Sams, Gerstein, Ward, Newman & Beckham, P.A., Miami, for respondent, John Doe.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for respondent, State of Fla.
   PER CURIAM.

Petitioner, Palm Beach Newspapers, Inc., seeks review under Rule 9.100(d), Florida Rules of Appellate Procedure, of an order denying petitioner’s motion to release the transcript of a hearing closed to the press and the public.

The circuit court judge, at the request of the Palm Beach County State Attorney, conducted an in camera hearing and denied the press’s request to attend the hearing based upon the representations of the State Attorney that the hearing related to grand jury matters. Petitioners moved for the release of the transcript of that hearing. After hearing argument of counsel for the interested parties, the judge concluded that the subject matter of the in camera hearing came within the secrecy conferred upon grand jury sessions and proceedings as set forth in Chapter 905, Florida Statutes (1983), and thereupon denied petitioner’s motion to release the transcript.

Section 905.24, Florida Statutes (1983), provides “Grand Jury proceedings are secret .... ” The question is whether the judge must conduct a closure hearing as contemplated by Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla.1982), before he conducts an in camera hearing concerning a matter related to a grand jury proceeding. Petitioner argues, as it argued below, that the term “grand jury proceeding” is synonymous with “grand jury session” as defined in Section 905.17 Florida Statutes. Therefore, petitioner concludes that since the grand jury was not in session, the in camera hearing could not have been a grand jury proceeding which is secret pursuant to Section 905.24. The petition also implies that the presence of the judge rendered the hearing a judicial proceeding.

This court has previously held that a closure hearing must be conducted only when the court contemplates closing a proceeding at which the press is entitled to be present. Palm Beach Newspapers, Inc. v. Harper, 417 So.2d 1100 (Fla. 4th DCA 1982). The mere presence of a judge, however, does not establish the presumptive openness of a proceeding.

We would categorize the subject of this conference as being within the purview of those chambers matters referred to in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), wherein it is stated:
Thus, when engaging in interchanges at the bench, the trial judge is not required to allow public or press intrusion upon the huddle. Nor does this opinion intimate that the judges are restricted in their ability to conduct conferences in chambers, inasmuch as such conferences are distinct from trial proceedings.
448 U.S. 555, 100 S.Ct. 2814, at 2839, n. 23, 65 L.Ed.2d 973.
Notice and a hearing are only required when the court decides to close a proceeding at which the press is entitled to be present. This is not one of those proceedings.

Harper, supra, at 1101.

We would agree that this in camera hearing constituted a judicial proceeding. This is true, however, not simply because a judge was present, but because all grand jury proceedings are also judicial proceedings, the grand jury being an arm of the court.

As long ago as 1900, this Court, in defining the nature of a grand jury proceeding in Craft v. State, 42 Fla. 567, 29 So. 418, 419, stated:
“We think that an investigation of a crime by a grand jury that is within its jurisdiction to investigate and to indict for is a judicial proceeding in a court of justice ... under our judicial system a grand jury is an appendage or adjunct to the circuit court ...” (Emphasis supplied.)
Next, in State ex rel. Guyton v. Croom, 48 Fla. 176, 37 So. 303, 306 (1904), our Court held:
“... under our judicial system a grand jury is an appendage or adjunct to the circuit court ...”
Then, in Rivers v. State, 121 Fla. 887, 164 So. 544, 545, our Court further stated:
“An investigation by a grand jury of a crime that is within its jurisdiction to investigate and to indict for is a judicial proceeding in a court of justice.” (Emphasis supplied.)

In re Grand Jury Investigation, 287 So.2d 43, 46 (Fla.1973).

Petitioner correctly asserts that the public has a common law right to attend judicial proceedings. However, Section 905.24, Florida Statutes, creates an exception to that general rule when the judicial proceeding is a grand jury proceeding. To conclude otherwise would permit the public and the press to attend every aspect of a grand jury proceeding when the judge happens to be present, such as when: the court is called upon to hear a challenge of an individual grand juror or the entire grand jury panel, Section 905.06; the court on its own motion excuses a grand juror, Section 905.075; the court appoints the foreman, Section 905.08; the court extends the term of the grand jury, Section 905.095; the court charges the grand jurors concerning their duties, Section 905.11 and Section 905.18; or the court considers a motion to expunge a grand jury report, Section 905.-28. A review of the foregoing statutes satisfies us that the term “grand jury proceedings” includes matters ancillary to the grand jury session, and that Section 905.24 requires the secrecy of such proceedings to remain inviolate.

Petitioner cites In re P.R., 637 P.2d 346 (Colo.1981), to support its argument that the judge should have conducted a closure hearing. We are not persuaded. In re P.R. involved a criminal contempt proceeding. A presumption of openness inheres in the very nature of a criminal trial under our system of justice. Richmond Newspapers, Inc. v. Virginia, supra. However, the purpose and nature of a grand jury differ dramatically from those of a criminal trial.

We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. See, e.g., United States v. Procter & Gamble Co., [356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077], supra. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if pre-indictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. [Footnotes omitted.]

Douglas Oil Co. of California v. Petrol Stops, 441 U.S. 211, 218-19, 99 S.Ct. 1667, 1672-73, 60 L.Ed.2d 156 (1979).

Petitioner also suggests that the 1983 amendment to Federal Rule of Criminal Procedure 6(e) supports the position that hearings ancillary to grand jury sessions should be open unless someone shows cause why they should be closed. We disagree. The committee notes to this section demonstrate that the committee intended to close such hearings. See also In re Grand Jury Empanelled March 8, 1983, 579 F.Supp. 189 (E.D.Tenn.1984).

We hold that a hearing ancillary or related to a grand jury session constitutes a proceeding which comes within the protection of Section 905.24, supra. Therefore we find no error in the judge’s refusal to conduct a closure hearing or in his order denying petitioner’s motion to release the transcript of the closed hearing.

PETITION DENIED.

DOWNEY, HURLEY and DELL, JJ., concur.

      . (1) No person shall be present at the sessions of the grand jury except the witness under examination, the state attorney and his assistant state attorneys, designated assistants as provided for in s. 27.18, the court reporter or stenographer, and the interpreter.


text:
    Sidney WOLOFSKY, Peter Wolofsky, Kenneth Wolofsky, S.N.W. Corp., P.N.W. Corp., and K.N.W. Corp., Appellants, v. CITY OF HALLANDALE, Broward County, Florida, et al., Appellees.
    No. 84-576.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    As Modified on Denial of Rehearing Jan. 4, 1985.

      Myron Burnstein of Burnstein & Knee, P.A., Hollywood, and Samuel Daniels of Daniels & Hicks, P.A., Miami, for appellants.
    Richard Kane, City Atty., Hallandale, for appellees.
   PER CURIAM.

By an amended complaint appellants sought to recover from the City of Hallan-dale monies paid under protest pursuant to an impact fee ordinance of the City. From a final judgment refusing to refund the entire impact fee paid pursuant to the ordinance, but giving appellants credit for an earlier payment of $75,000 for water plant improvement, the appellants perfect this appeal.

Two issues were presented on appeal. One involves the appellants’ right to a jury trial; the other involves the trial judge’s decision on the merits, which finds that the City was entitled to enact the impact fee ordinance and apply it to appellants’ property.

We have carefully considered the arguments in support of the appellate issues and do not find reversible error demonstrated. The record reflects that at the conclusion of the entire case either there were no definable issues requiring resolution by a jury or their submission to a jury was waived. Furthermore, on the merits we believe the record supports the trial judge’s resolution of appellants’ claim that the City was equitably estopped to apply the impact fee to the appellants’ remaining improvements.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY, DELL and BARKETT, JJ., concur.


author: LEHAN, Judge.

text:
    STATE of Florida, Appellant, v. Raphael MORALES, Appellee.
    No. 83-1523.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 13, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Tampa, for appellee.
   LEHAN, Judge.

This case involves the question of what test should be used by a trial court to determine whether sufficient independent evidence of a conspiracy, and a defendant’s participation therein, exists in order to justify admitting into evidence against the defendant hearsay statements by alleged co-conspirators. Florida case law has not contained the complete answer. See Brikold v. State, 365 So.2d 1023, 1026 n. 5 (Fla.1978); State v. Haynes, 453 So.2d 926 (Fla. 2d DCA 1984); Tresvant v. State, 396 So.2d 733, 740 n. 10 (Fla. 3d DCA), petition for review denied, 408 So.2d 1096 (Fla.1981). We conclude, as explained below, that the appropriate test is included in a two-part test which is that such statements: “(1) are not admitted until properly authenticated by substantial independent evidence, and (2) do not remain in the proof to be submitted to the jury unless their admissibility is established by a preponderance of the evidence.” United States v. James, 590 F.2d 575, 583 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). See also United States v. Nichols, 695 F.2d 86 (5th Cir.1982).

We believe the trial court’s exclusion of certain hearsay evidence in this case was not consistent with that test. That evidence consisted of certain alleged cocon-spirators’ statements made in furtherance of the conspiracy which implicated defendant in the crimes charged. We reverse the trial court’s rulings which excluded the hearsay evidence and which dismissed the charges against defendant.

The defendant was charged with four violations of the Florida Comprehensive Drug Abuse Prevention and Control Act, specifically, violations of sections 893.13 and 893.135, Florida Statutes (1981), involving possession of a controlled substance (diazepam), sale of a controlled substance (diazepam), trafficking in drugs (cocaine), and conspiracy to traffic in more than 20 grams of methaqualone. A pretrial eviden-tiary hearing was held on defendant’s motion to exclude from the evidence hearsay statements made by defendant’s alleged co-conspirators. The trial court found that a conspiracy to traffic in controlled substances in Pinellas County could be established by the evidence but that there was insufficient evidence, independent of those hearsay statements of the alleged cocon-spirators, to show defendant’s involvement in the conspiracy. The court therefore granted the motion. The court also granted defendant’s motion to dismiss the charges because proof of the charges depended upon those hearsay statements.

The state appeals, contending that the trial court erred in finding that there was insufficient independent evidence of defendant’s participation in the conspiracy. We agree with the state.

Section 90.803(18)(e), Florida Statutes (1981), contains the so-called “coconspirator rule” permitting the admission of statements by coconspirators into evidence against a defendant who is a member of the conspiracy even though the statements would otherwise be inadmissible as hearsay:

The provision of s. 90.802 [involving hearsay] to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(18) Admissions. A statement that is offered against a party and is:
(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

The case law expands upon the rule and outlines the role of the trial court. “[B]efore the ‘co-conspirator rule’ may be invoked there must first be independent evidence of the existence of a conspiracy, and of the objecting party’s participation in it.” Honchell v. State, 257 So.2d 889, 890 (Fla.1971). “The requirement of independent evidence is a condition of admissibility.” Boyd v. State, 389 So.2d 642, 644 (Fla. 2d DCA 1980). In Florida the initial determination of whether such independent evidence exists is an evidentiary matter for the trial court. Saavedra v. State, 421 So.2d 725 (Fla. 4th DCA 1982). Saavedra, relying upon the Fifth Circuit’s opinion in James, pointed out that “the jury plays no role in the decision whether to admit a co-conspirator’s declaration.” Saavedra, 421 So.2d at 727.

As required by section 90.803(18)(e), the trial court should instruct the jury, upon defendant’s motion, that the conspiracy and each member’s participation in it must be established by independent evidence. That instruction, often called the “Apollo instruction,” appears to have derived from United States v. Apollo, 476 F.2d 156 (5th Cir.1973). James overruled Apollo. But Boyd confirmed that the “Apollo rule lives on in Florida” because of section 90.803(18)(e). 389 So.2d at 646. Rule 801(d)(2)(E) of the Federal Rules of Evidence corresponds to section 90.803(18)(e) of the Florida Evidence Code except that the Federal Rules do not contain the Florida Code’s Apollo instruction requirement. Boyd, 389 So.2d at 646. Accordingly, in Florida after the trial court makes a threshold decision to admit hearsay evidence in this type of case, the cautionary Apollo instruction shall be given if an appropriate request is made.

As noted above, James overruled Apollo and the Apollo instruction required in Florida by section 90.803(18)(e) is not appropriate in the federal courts. Therefore, the jury responsibility invoked by that instruction in Florida concerning the effect, if any, of hearsay evidence against an alleged co-conspirator no longer exists in federal cases. Nonetheless, other procedures followed in federal courts do correspond to procedures in Florida relative to the determinations to be made in this type of case by the trial court, as explained below.

Although it is clear that the trial court has the responsibility for determining the admissibility of that type of hearsay evidence, it has not been clear how much independent evidence in Florida courts is necessary to prove the existence of a conspiracy and a defendant’s participation therein. Brikold, 365 So.2d at 1026 n. 5. This court has held that it must not be “too slight,” “too tenuous” or “too insubstantial.” Farnell v. State, 214 So.2d 753, 760 (Fla. 2d DCA 1968). Also, the test for determining the requisite quantum of independent evidence in this type of situation has seemed to vary among other courts. As the Third District pointed out in Tresvant, 396 So.2d at 740 n. 10, the tests have required slight evidence, Burns v. State, 72 Okla.Crim. 432, 117 P.2d 155 (1941); prima facie evidence, Carbo v. United States, 314 F.2d 718 (9th Cir.1963), cert. denied sub nom. Palermo v. United States, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964); preponderance of the evidence, United States v. Trotter, 529 F.2d 806 (3d Cir. 1976); and a fair preponderance of the evidence, United States v. Ross, 321 F.2d 61 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963).

Saavedra, which relies upon United States v. Grassi, 616 F.2d 1295 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980), has been cited to us for the principle that “a preponderance of the evidence test is applicable.” Saavedra, with which we agree, does endorse a preponderance test to be applied at the conclusion of all the evidence. Saavedra states that “the trial judge must then decide whether the independent evidence introduced by the prosecution

has demonstrated the defendant’s participation in a conspiracy by a preponderance of the evidence. If the prosecution has not prevailed on this point, the judge must decide whether a cautionary instruction will cleanse the record of prejudice or whether a mistrial is required.”

421 So.2d at 727. But Saavedra does not address the quantum of independent evidence necessary at the time of the above-referenced initial determination by the trial court to justify admission of hearsay into evidence.

In Grassi the Fifth Circuit explained the two-part test from James which is quoted in the opening paragraph of this opinion. More recently the Fifth Circuit in Nichols again reiterated that portion of James and explained the procedure to be followed by a trial court in a case like this:

In order to prevent the jury’s being prejudiced by inadmissible hearsay, James establishes two procedural safeguards. Ideally, before trial the prosecutor should make a showing of substantial independent evidence that the statement is admissible. Then at the conclusion of evidence, considering both the prosecution’s evidence and the defense’s evidence, the trial court must find that the preponderance of the independent evidence shows the statement is admissible.
The district court should, whenever reasonably practicable, require the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of a cocon-spirator. If it determines it is not reasonably practical to require the showing to be made before admitting the evidence, the court may admit the> statement subject to being connected up.
Regardless of whether the proof has been made in the preferred order, or the coconspirator’s statement has been admitted subject to later connection, on appropriate motion at the conclusion of all the evidence the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator’s statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy_ If the court concludes that the prosecution has not borne its burden of proof on these issues, the statement cannot remain in the evidence to be submitted to the jury. In that event, the judge must decide whether the prejudice arising from the erroneous admission of the coconspirator’s statements can be cured by a cautionary instruction to disregard the statement or whether a mistrial is required. James, 590 F.2d at 582-83.

695 F.2d at 89-90 (Emphasis added.)

The James test has also been used recently by the Eleventh Circuit. See, e.g., United States v. Barshov, 733 F.2d 842 (11th Cir.1984); United States v. Puerto, 730 F.2d 627 (11th Cir.1984); United States v. Walker, 720 F.2d 1527 (11th Cir.1983), cert. denied sub nom. Gustin v. United States, — U.S. -, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). Barshov specifically refers to the two determinations to be made by the trial court.

We agree with those federal cases that the foregoing two determinations should be made by the trial court. We also agree with the James test that the requisite burdens of proof upon the prosecution at these determinations are: First, “substantial evidence,” preferably presented in a James type evidentiary hearing outside the presence of the jury (although Nichols did not find reversible error from a trial court having held a “proffer hearing,” Nichols 695 F.2d at 90); Second, “preponderance of the evidence” at the conclusion of all the evidence (assuming the issue is presented by proper motion).

Our conclusion that the first determination should be governed by a substantial evidence test is not inconsistent with this court’s statements in Famell, supra, and avoids an undue burden on the state at an early stage of the proceedings. Our conclusion that the second determination should be governed by a preponderance test is consistent with the Fourth District in Saavedra. We believe a test of that magnitude for the second determination is appropriate in view of the potency of the coconspirator rule as a prosecutorial weapon. When conspiracy is involved, hearsay evidence may be admitted as a part of the truth-seeking process even though it would be inadmissible in other types of cases. We believe there would be unacceptable prejudice to a defendant if a lesser test were applicable then. See Nichols. On the other hand, we do not believe a heavier burden on the prosecution is necessary at that point because, of course, defendant’s interests are safeguarded by the cautionary Apollo instruction and by the “beyond a reasonable doubt” test to be ultimately applied by the jury to all the evidence.

The foregoing does not affect the necessity for there being a prima facie case to withstand a motion for judgment of acquittal and to justify submitting a case to the jury. As indicated in Saavedra, Gras-si, and Nichols, if the prosecution fails to meet its burden (preponderance) at the second determination and the defense makes a proper motion, the sanction is either a curative instruction regarding the hearsay evidence or a mistrial. At that point a defendant would not be discharged as he would be if a motion for judgment of acquittal is granted.

Neither Nichols nor Grassi undertakes to define “preponderance” and “substantial.” We believe the preponderance test, which has been judicially defined so often, needs no further comment. “Substantial” has been described as “at least enough to take the question to the jury.” James, 590 F.2d at 581, citing United States v. Nixon, 418 U.S. 683, 701 n.14, 94 S.Ct. 3090, 3104 n.14, 41 L.Ed.2d 1039, 1060 n.14 (1974). Black’s Law Dictionary 1281 (5th ed. 1979), defines substantial evidence generally as:

Such evidence that a reasonable mind might accept as adequate to support a conclusion .... Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.... Evidence which a reasoning mind would accept as sufficient to support a particular conclusion and consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. (Citations omitted.)

The purposes of the foregoing explanation of tests, procedures and terms are to promote consistency in the trial courts in future cases of this kind and to clarify the basis of our holding in this case. Applying the above to the facts at hand we conclude that the trial court erred in not admitting into evidence the eoconspirators’ statements. We believe there was more than enough to meet the substantial independent evidence test (1) that a conspiracy existed, (2) that the coconspirators and the defendant against whom the coconspira-tors’ statements were offered were members of the conspiracy, and (3) that the statements were made during the course and in furtherance of the conspiracy. See Nichols, quoted above. That independent evidence included the following:

(a) Undercover agents initiated an investigation of two suspected drug dealers (one of whom was an alleged coconspirator) and formed a plan to attempt to purchase ten thousand quaaludes from them.
(b) Negotiations for the purchase of methaqualone between the alleged cocon-spirators and undercover agents continued for approximately a week.
(c) Consummation of the drug transaction did not occur until after defendant’s arrival from out of town at an alleged coconspirator’s home.
(d) Telephone calls were made by the alleged coconspirators to the defendant’s residence, and vice versa, at critical times during the negotiations.
(e) No telephone calls between the aforementioned two drug, dealers’ homes or places of business and the defendant’s residence were made during the relevant time frame except for those placed during the planning stages of the conspiracy.
(f) Defendant’s car, bearing Dade Coun- . ty tags, arrived at the Pinellas County home of one of the alleged coconspira-tors in the early morning hours of the day of the drug transaction.
(g) Less than two hours after defendant’s arrival in town, defendant accompanied one of the alleged coconspirators, together with the controlled substances contained in a suitcase, on a car ride to the hotel where the drug transaction was consummated.
(h) Defendant remained in the car in the hotel’s parking lot while the alleged co-conspirator took the drugs to the hotel room.
(i) Defendant was arrested while sitting in the car. The coconspirator was arrested in the hotel room.
(j) More than 300 grams of cocaine and 200 grams of methaqualone were seized in the hotel room from the suitcase which was taken from the car in which defendant was a passenger; and
(k) A search of defendant incident to his arrest revealed a piece of paper in his wallet with the words “summa caine” written on it. The same words were written on one of defendant’s business cards which was found on an alleged coconspirator’s person.

A conspiracy can be established by circumstantial evidence. Resnick v. State, 287 So.2d 24, 26 (Fla.1973). We recognize that any one of the foregoing pieces of evidence may not be enough by itself to substantially establish defendant’s participation in the conspiracy. See United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (presence of defendant at the scene is not enough by itself); United States v. Nettles, 570 F.2d 547 (5th Cir.1978) (piece of paper containing defendant's name and phone number is not enough); United States v. Bulman, 667 F.2d 1374 (11th Cir.), cert, denied, 456 U.S. 1010,102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982) (association with persons involved in a conspiracy is not enough); United States v. Dalzotto, 603 F.2d 642 (7th Cir,), cert. denied, 444 U.S. 994, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979) (telephone calls between government agents and coconspirators are not enough). However, in our view the independent evidence, when viewed in its totality, substantially shows defendant’s participation in the conspiracy.

We therefore reverse the order excluding the hearsay from the evidence and the order dismissing the charges against defendant.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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

      . See Wagner v. State, 421 So.2d 826 (Fla. 1st DCA 1982); Ponsell v. State, 393 So.2d 635 (Fla. 4th DCA 1981).


author: BOARDMAN, Acting Chief Judge.

text:
    Tammy Ann DUQUE, Appellant, v. STATE of Florida, Appellee.
    No. 84-253.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 19, 1984.

      Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant appeals the trial court’s order adjudicating her guilty of first degree murder. We reverse and remand.

On - appeal, appellant argues, inter alia, that the trial court erred in failing to declare a mistrial because the prosecutor’s closing argument was improper and went beyond the evidence before the jury. We agree.

During the trial, the state attempted to introduce the testimony of a court-appointed psychiatrist, Dr. Afield. The purpose of that testimony was to elicit statements allegedly made by appellant to Dr. Afield. Dr Afield was not permitted to testify because of discovery violations ruled prejudicial to appellant. During closing argument, the prosecutor referred to what appellant allegedly told Dr. Afield by stating:

Think about the testimony of that Defendant. Think about what she told Dr. Afield. After he presented her with a statement of the facts in the case. Then she said, “Tony and Stanley” — changes her tune a little bit. What does she tell Dr. Mussenden on August 22nd, 1983? I am sorry, Dr. Afield. “I don’t have a defense. I don’t know what it is.” She sat in that jail thinking about this. Now there is a criminal mind. She sat in that jail from September 11th, 1982, until September 21, 22, sorry — I am like Excilia, I am not good with dates — September 21, yesterday, and thought about a story. She had time. What do you do in jail? You sit there and think about a story.

Because appellant’s statement to Dr. Afield went beyond the evidence before the jury, we find that the trial court erred in not granting appellant’s motion. See United States v. Vera, 701 F.2d 1349 (11th Cir. 1983). Although defense counsel did not make a contemporaneous objection to the prosecutor’s comments but, rather, moved for a mistrial at the conclusion of the prosecutor’s argument, we find the improper comments “so fundamentally tainted that neither an objection nor retraction could entirely destroy that sinister influence.” Coleman v. State, 420 So.2d 354, 356 (Fla. 5th DCA 1982).

Additionally, the prosecutor stated in closing argument:

Mr. Rocha, I don’t come into a courtroom with the wrong persons. That is on my conscience. If that woman goes to jail that is on my conscience. That is on Baker’s conscience. I stand before the bar of justice. And I take it seriously. You’d better believe it. This badge, I don’t need it. ’Cause I would cry at night if that girl is innocent behind bars. I wouldn’t sleep.

[Emphasis added.] This comment, although not objected to by appellant, was improper and should not be repeated on retrial. See McGuire v. State, 411 So.2d 939 (Fla. 4th DCA 1982).

We also find merit in appellant’s argument that the trial court erred by ruling that a defense witness could not testify to statements made to her by the witness’ husband, a coconspirator, which was consistent with appellant’s theory of defense, to wit, that the participants intended to scare the deceased rather than kill him. Appellant testified at trial that her cocon-spirators were only supposed to talk to appellant’s father and perhaps scare him. Therefore, further testimony which would corroborate appellant’s defense became important to the issue of appellant’s credibility. See Reddick v. State, 443 So.2d 482 (Fla. 2d DCA 1984); Campos v. State, 366 So.2d 782 (Fla. 3d DCA 1978).

We have considered appellant’s remaining points on appeal and find them to be without merit.

Accordingly, we reverse and remand for a new trial.

OTT and CAMPBELL, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Nester SAMUDIO, Appellant, v. STATE of Florida, Appellee.
    No. 84-567.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 14, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

After reviewing the briefs and record on appeal in this case, we find that the appellant has failed to demonstrate any reversible error, and, accordingly, we affirm his convictions. Clerical errors in the court’s written judgment and sentence form, however, require that we remand for correction of that form.

The state of Florida charged the appellant with trafficking in cocaine, conspiracy to traffic in cocaine, and delivery of a controlled substance. At the conclusion of appellant’s trial, the jury found him guilty of trafficking in cocaine, conspiracy to traffic in cocaine, and attempted delivery of a controlled substance. The trial court orally adjudicated appellant guilty of those offenses and subsequently sentenced him to serve fifteen years on the trafficking charge, fifteen years on the conspiracy charge, and five years on the attempted delivery charge. The written judgment form, however, reflects that the appellant was found guilty of delivery of a controlled substance rather than attempted delivery.

The court’s written judgment and sentence must not vary from its oral pronouncement, Yates v. State, 429 So.2d 815 (Fla.2d DCA 1983), and the court’s judgment must conform to the jury’s verdict. Hicks v. State, 411 So.2d 1025 (Fla.2d DCA 1982). Therefore, the judgment and sentence form must be corrected to show that appellant was found guilty of attempted delivery of a controlled substance, was adjudicated guilty of that offense, and was sentenced for that offense.

We, accordingly, remand this cause to the trial court for correction of the error, but subject to our decision in State v. Samudio, 460 So.2d 419, affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

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


text:
    STATE of Florida, Appellant, v. Nester SAMUDIO, Appellee.
    No. 84-1067.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellee.
   SCHOONOVER, Judge.

Appellant, the State of Florida, appeals from the judgment and sentences imposed against appellee, Nester Samudio. We agree with the state’s contention that the trial court erred in sentencing Mr. Samu-dio, and, accordingly, we reverse.

Mr. Samudio was found guilty of attempted delivery of a controlled substance, trafficking in cocaine (400 grams or more), and conspiracy to engage in trafficking in cocaine (400 grams or more). He was sentenced to serve five years on the attempted delivery charge, fifteen years on the trafficking charge, and fifteen years on the conspiracy charge. The fifteen-year sentences were to be served concurrently, and the five-year sentence was to be served consecutively to them.

The trial court refused to impose a mandatory-minimum sentence for the charges of trafficking and conspiracy, even though the amount of cocaine involved in each of the charges was in excess of 400 grams. The trial court also refused to impose a mandatory fine for either of the charges.

Since the amount of cocaine involved was in excess of 400 grams, a mandatory-minimum fifteen-year sentence and a fine of $250,000 was required for each of those charges. §§ 893.135(l)(b)3 and 893.135(4), Fla.Stat. (1983). Because the trial court refused to impose the appropriate sentences and fines, we must reverse and remand for resentencing. See State v. Bateman, 423 So.2d 577 (Fla. 2d DCA 1982); Martinez v. State, 417 So.2d 770 (Fla. 2d DCA 1982); State v. Taylor, 411 So.2d 993 (Fla. 4th DCA 1982).

We, therefore, reverse the sentences entered herein and remand with directions that the trial court sentence appellee to serve a mandatory-minimum term of fifteen years for each of the two convictions, to be served concurrently, and to impose the $250,000 fines required by law.

Subject to our decision in Samudio v. State, 460 So.2d 418, the judgment and sentences are affirmed in all other respects.

Affirmed in part, reversed in part, and remanded.

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


text:
    FORT MYERS BROADCASTING COMPANY, and News-Press Publishing Co., Petitioners, v. Honorable William J. NELSON, Respondent.
    No. 84-1823.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 18, 1984.
    Theodore L. Tripp, Jr. of Moorey, Seals, Garvin & Tripp, P.A., Fort Myers, for petitioner Fort Myers Broadcasting Co.
    Florence Beth Snyder and Allan Milledge of Milledge & Hermelee, Coral Gables, for petitioner News-Press Pub. Co.
    Kevin J. Plunkett of Plunkett & Jaffe, P.A., New York City, and Stephen B. Russell, Fort Myers, for plaintiffs Russell.
    George K. Rahdert of Rahdert, Malone & Richardson, St. Petersburg, amicus curiae by Times Pub. Co. for petitioners.
    Richard J. Ovelmen, Miami, amicus curiae by The Miami Herald Pub. Co. for petitioners.
    Gregg D. Thomas and Steven L. Bran-nock of Holland & Knight, Tampa, amicus curiae by The Tribune Co. for petitioners.
   PER CURIAM.

We deny the petition for a writ of certio-rari from the trial court’s order closing to the public all discovery depositions in this libel lawsuit. See Seattle Times Co. v. Rhinehart, — U.S. -, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984); Fla.R.Civ.P. 1.280(c).

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


author: DAUKSCH, Judge. COWART, Judge,

text:
    STATE of Florida, Appellant, v. Helene POWELL, Appellee.
    No. 83-1339.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 19, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Dennis L. Salvagio, Orlando, for appel-lee.
   DAUKSCH, Judge.

This is an appeal from an order granting relief under Florida Rule of Criminal Procedure 3.850.

Appellee was tried and found guilty of first degree murder. During trial she properly moved for a judgment of acquittal based upon the alleged insufficiency of the evidence. She moved for a new trial after she was found guilty. Both of these were denied, so she appealed the denials. She lost the appeal. See 414 So.2d 1095.

After losing her appeal she filed a motion to vacate the judgment under Rule 3.850 and said she would not have been convicted if the original trial judge, who was not the one hearing the motion to vacate, had not been confused about the law relating to her case. The judge hearing the motion took testimony, including that of the trial judge, considered other evidence and ordered a new trial. He said the trial judge

was under the impression that the decision in Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981), prevented him from entering a judgment of acquittal even though he obviously felt that the weight of the evidence dictated such an order. This court is of the opinion that Tibbs v. State, 397 So.2d 1120 (1981), sets forth clearly that the trial court has authority to determine the weight of the evidence while the question of sufficiency of the evidence is an appropriate conclusion of the appellate tribunal.

The judge who ruled on the motion to vacate was in error because he had no jurisdiction to grant a new trial — neither did the trial judge. That jurisdiction was lost after the appeal was taken and never regained. He was also in error when he presumed to review a decision of this court which had passed on the sufficiency of the evidence. As to the ability of judges, trial or appellate, to pass on the weight or sufficiency of evidence see Tibbs v. State, 397 So.2d 1120 (1981), aff'd, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Finally, he was in error when he presumed to rule upon, in an appellate fashion, the prior ruling of another circuit judge. Cf. Groover v. Walker, 88 So.2d 312 (Fla.1956); Marine Midland Bank Central v. Cote, 384 So.2d 658 (Fla. 5th DCA 1980).

The order appealed is reversed.

REVERSED.

COWART, J., concurs specially with opinion.

SHARP, J., dissents without opinion.

COWART, Judge,

concurring specially.

I completely concur in the court’s decision. However, I feel it necessary to point out that the trial judge below misconstrues Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). On a motion for a judgment of acquittal during a jury trial the trial judge considers only the legal sufficiency of the evidence; that is, whether there is some competent evidence to support every ultimate fact necessary to establish every essential constituent element of the offense. This includes direct evidence and circumstantial evidence from which the jury may reasonably infer an essential ultimate fact. The trial judge does not weigh the evidence. See Davis v. State, 425 So.2d 654 (Fla. 5th DCA 1983); Cunningham v. State, 385 So.2d 721, 722 (Fla. 3d DCA 1980). See also Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984). Under Florida Rule of Criminal Procedure 3.600(a)(2) the trial judge does have some discretion to consider the weight of the evidence in ruling on a motion for a new trial. However, the trial court in this case exercised that discretion and denied the motion for a new trial.

      . The fact that a trial court states on the record that it would have acquitted the defendant if it had been sitting as a juror is of no consequence in a motion for judgment of acquittal. See Rodriguez v. State, 436 So.2d 219 (Fla. 3d DCA 1983).