author: JOANOS, Judge. NIMMONS, Judge, JOANOS, Judge.

text:
    Louise Young HUTCHINSON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corp., Appellee.
    No. AO-274.
    District Court of Appeal of Florida, First District.
    July 18, 1983.
    As Clarified on Denial of Rehearing Sept. 22, 1983.
    Aaron A. Green, P.A., Gainesville, for appellant.
    John P. O’Neal of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for ap-pellee.
   JOANOS, Judge.

Clifford Hale was injured in an accident which occurred on June 25, 1978, involving the bicycle he was riding and an automobile driven by appellant. Appellee, Hale’s insurer, paid him some $60,000 under various coverages. Then appellee, as Hale’s subro-gee, sued appellant. This is an appeal from the judgment in favor of appellee which resulted from the bench trial held in this case.

No transcript of the bench trial exists, however an approved stipulated statement of the evidence was submitted pursuant to Fla.R.App.P. 9.200(b)(3). Liability is conceded for purposes of this appeal. Clifford Hale was not present at the trial. Mrs. Hale testified that Clifford’s present mental condition is not good. She said that he cannot recall the accident, and he becomes violent when the accident is discussed. He was in good mental condition before the accident. He had a stroke in June, 1980, but before that he was getting better from the accident. Since the stroke, he has had speech therapy and takes medication for temper tantrums. A field investigator for appellee said the claim was paid because in his opinion, Hale’s injuries were serious enough to warrant it.

The trial court denied a defense motion for directed verdict which was based on lack of medical testimony, records, or other medical evidence of an injury within the threshold requirements of the 1977 no-fault statute, Section 627.737(2)(a-f). During the defense presentation, a deputy with the Alachua County sheriffs department said he was called to investigate a burglary of the Hale’s house on March 26, 1982. He said Mr. Hale had been able to give him information for the report and his mental condition was satisfactory, although he appeared to have a health problem and his wife had to help him with some information.

Appellant contends that appellee, as sub-rogee, suffers all the limitations its insured would have had if he had sued appellant directly, and that there was no evidence that the insured had met any of the six no-fault threshold requirements of Section 627.737(2). Appellee contends that by failing to answer certain requests for admissions, appellant admitted the amount of damage suffered by Hale as a result of the accident. Also, appellee argues that the issue regarding the threshold requirements was not raised in the pleadings, and that in any event, appellee introduced evidence that the nature and extent of Hale’s injuries met the threshold requirements. Specifically, appellee says Mrs. Hale’s testimony that her husband suffered a memory loss established a permanent loss of a bodily function under Section 627.737(2)(b), or it showed a serious non-permanent injury under Section 627.737(2)(e).

The threshold issue was sufficiently raised in the pleadings. Appellee’s complaint alleged permanent injuries, to which appellant answered she had insufficient knowledge to admit or deny.

Section 627.737(2)(b) requires proof of a permanent loss of a bodily function. While it is questionable whether loss of memory constitutes loss of a bodily function under the statute, even assuming it does, there is no evidence to show the loss is permanent. Mrs. Hale simply testified that Hale suffers from the memory loss at the present time.

Section 627.737(2)(e) requires proof of “a serious nonpermanent injury which has a material degree of bearing on the injured person’s ability to resume his normal activity and lifestyle during all or substantially all of the 90-day period after the occurrence of the injury, and the effects of which are medically and scientifically demonstrable at the end of such period.” (e.s.) Mrs. Hale testified that Hale no longer rides his bicycle or attends the community college, has lost his memory, and has temper tantrums. This evidence does not meet the requirements of Section 627.-737(2)(e). The phrase “medically and scientifically demonstrable” has been interpreted to require objective signs of injury. Howard v. Newman, 363 So.2d 65 (Fla. 1st DCA 1978) (subjective complaints of pain not sufficient). Examples of objective signs of injury include the results of a straight leg raising test, a standard medical test used to determine the presence of back problems, in Snowden v. Sprouse, 375 So.2d 901 (Fla. 1st DCA 1980), or a range of motion test performed by a doctor, which is more than the plaintiff’s unsubstantiated testimony of pain, White v. Ar vanitis, 424 So.2d 886 (Fla. 1st DCA 1982). In the present case there is no evidence to fulfill the requirement that the effects of the alleged serious non-permanent injury are medically and scientifically demonstrable at the end of the ninety day period.

Appellant also argues that certain admissions by appellant obviated the need to offer further proof as to damages. By failing to respond to the request for admissions, appellant admitted only that the checks attached to the request, drawn by State Farm and paid to specified medical facilities or doctors and to Hale, his wife, and his attorney were genuine, that those cheeks represented payment by State Farm for medical expenses incurred by Hale in his accident with Hutchinson, and that one of the checks was for $50,000 paid to Hale, his wife, and his attorney, by State Farm for their damages by reason of Hale’s accident with Hutchinson. Whether these payments for medical expenses were reasonable and necessary, and whether the payment of $50,000 in damages accurately reflect the amount of damages to be assessed against appellant have not been proven. Further, the admissions contain no information about permanent loss of a bodily function or a serious nonpermanent injury the effects of which are medically or scientifically demonstrable.

Appellee failed to show that the statutory threshold requirements were met in this case, therefore the judgment against appellant is REVERSED, and the proceedings are REMANDED to the circuit court for a new trial.

LARRY G. SMITH, J., concurs.

NIMMONS, J., specially concurs with opinion.

NIMMONS, Judge,

specially concurring.

I fully concur with the Court’s opinion including the remand for new trial. Appellant has not asserted on appeal a right to the entry of judgment in her favor. She claims only the right to a new trial.

ON MOTION FOR CLARIFICATION

JOANOS, Judge.

Our opinion indicates that the statutory threshold requirements have not been met! It also sets forth that the amount of damages have not been proven. Therefore, the new trial shall include both of these issues.

We have also noticed on our own that the first word in the next to last paragraph in our opinion should be “Appellee” rather than “Appellant,” and the sentence should read “Appellee also argues that certain admissions by appellant obviated the need to offer further proof as to damages.”

LARRY G. SMITH and NIMMONS, JJ„ concur.

      . In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.741, or against any person or organization legally responsible for his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
      (a) Loss of a body member.

        (b) Permanent loss of a bodily function.

      (c) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
      (d) Significant permanent scarring or disfigurement.

        (e) A serious, nonpermanent injury which has a material degree of bearing on the injured person’s ability to resume his normal activity and lifestyle during all or substantially all of the 90-day period after the occurrence of the injury, and the effects of which are medically or scientifically demonstrable at the end of such period.

      (f) Death.


source: Caselaw Access Project

author: ZEHMER, Judge. ZEHMER, Judge.

license: Public Domain

text:
    Ronald E. ANDERSON and Byron Edward Keen, Appellants, v. STATE of Florida, Appellee.
    Nos. AO-281, AO-282.
    District Court of Appeal of Florida, First District.
    July 18, 1983.
    Rehearing Denied March 13, 1984.

      Floyd L. Vipperman, Jr., and M. Kathleen Wright, Gainesville for appellants.
    John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

The issue before us in these consolidated appeals is whether the appellants were placed in double jeopardy in violation of the federal and state Constitutions when they were tried upon an information charging them in one count with possession of a controlled substance and in another count with manufacture or possession with intent to distribute a controlled substance. We hold that appellants’ double jeopardy rights were not violated and affirm the judgment of the trial court.

The trial court denied appellants’ motion to dismiss the possession count on double jeopardy grounds, ruling that possession is not the “same” offense as manufacture or possession with intent to distribute. The court allowed both counts to go to the jury, and a guilty verdict was returned as to each count. Appellants were adjudged guilty of the charge of unlawful manufacture or possession of cannabis with intent to distribute and were sentenced to one year in jail and five years probation. The court did not adjudicate appellants guilty or sentence them on the possession charge.

According to the Supreme Court’s recent opinion in Bell v. State, 437 So.2d 1057 (Fla.1983), an individual may be tried upon an information charging two offenses, one of which is a lesser-included offense of the other, without violating the prohibition against double jeopardy as long as the trial judge instructs the jury that it can return a guilty verdict only as to one of the two offenses. According to Bell, the double jeopardy clause protects a defendant from being convicted and sentenced on two offenses which are the “same” for double jeopardy purposes. In the present case, the trial judge did not enter an adjudication of guilt on the possession charge; therefore, appellants’ double jeopardy rights have not been violated.

Although the trial judge committed error in allowing both counts to go to the jury without an instruction that they could return a guilty verdict only as to one of the counts, this error was harmless since appellants were adjudicated guilty and sentenced on only one charge.

Our independent review of the record reveals that the trial court has not finally disposed of the possession charge against appellants. We affirm the judgment and sentence against appellants on the count of manufacture or possession with intent to distribute; however, we remand to the trial court for entry of an appropriate order dismissing Count I of the information.

ROBERT P. SMITH, Jr., C.J., and WENTWORTH, J., concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

Appellants have filed a motion for rehearing, and appellee, State of Florida, has filed a motion for modification of our decision filed July 18, 1983. Both parties take issue with our application of Bell v. State, 437 So.2d 1057 (Fla.1983), to the facts of this case.

Appellant argues that Borges v. State, 415 So.2d 1265 (Fla.1982), is controlling since the two offenses charged against appellants are actually “the same” offense under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and that Bell v. State is inapplicable because it deals with one charge which is a lesser-included offense of the other charge.

Appellee contends that the result of our decision is correct but that we should modify our opinion “by deleting all reference to whether separate convictions and sentences would have been improper, and should merely affirm the only judgment and sentence entered against the defendants, to wit: the unlawful manufacture of a controlled substance.” The appellee argues that Bell v. State is distinguishable because the present case does not deal with one offense that is a lesser-included offense of the other, and that this case is controlled by the Supreme Court’s decision in Smith v. State, 430 So.2d 448 (Fla.1983).

In Bell, the court set forth the following rule:

If two statutory offenses have the exact, same essential constituent elements, or when one statutory offense includes all of the elements of the other, those two offenses are constitutionally ‘the same offense’ and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events.

437 So.2d at 1060. This rule applies whether the double jeopardy issue arises in the context of lesser-included offenses or offenses of equal dignity charged in the same or separate indictments. Moreover, Bell makes it clear that if double jeopardy is in fact shown, no longer is it sufficient to merely vacate the sentence and let the multiple convictions stand.

According to the Supreme Court’s opinion in Smith, proof of sale of a controlled ■ substance does not require proof of possession. Therefore, the crimes of sale of a controlled substance [§ 893.13(l)(a), Fla. Stat.] and possession of a controlled substance [§ 893.13(l)(e), Fla.Stat.] are not the “same offense” for double jeopardy purposes, and the defendant in Smith could be convicted and sentenced for both sale and possession of a controlled substance.

The key question in the present case is whether proof of the manufacture of a controlled substance requires proof of possession. According to the Schedule of Lesser Included Offenses in Florida Standard Jury Instructions in Criminal Cases (2d Ed., 1981), the crime of possession under Section 893.13(l)(e), is a necessarily included offense of the crimes listed in Section 893.13(l)(a) only if possession is charged under Section 893.13(l)(a).

In the present case, appellants were charged in count one with “actual or constructive possession” of cannabis, in contravention of Section 893.13(l)(e) and in count two with having “unlawfully and knowingly manufactured] or possessed] with intent to distribute ” cannabis in contravention of Section 893.13(l)(a). Our opinion assumed that appellants were adjudged guilty as charged in count two without distinguishing “manufacture” and “possession with intent to distribute” as separate offenses. The appellee’s motion correctly points out that appellants were adjudicated guilty only of “manufacture” and not of “possession with intent to distribute.”

While the Schedule of Lesser Included Offenses makes it clear that “possession” under 13(l)(e) is a necessarily included offense of “possession with intent to distribute” under 13(l)(a), it is also clear that “possession” is not a necessarily included offense of “manufacture” under 13(l)(a) because the crime of “manufacture” does not require proof of possession. Accordingly, appellants could have been convicted and sentenced for both the manufacture of cannabis under Section 893.13(l)(a) and the possession of the same cannabis under Section 893.13(l)(e) without violating the double jeopardy clause. Smith v. State, supra.

We also note that although both parties on appeal have represented to us that appellants were adjudicated guilty only on the charge in count two, there are two conflicting judgments contained in the record on appeal. Pursuant to the form simply entitled “JUDGMENT,” the standard judgment form now widely used throughout the state, the appellants were adjudicated guilty of the “manufacture” charged in count two. However, the trial judge also executed and filed a second form entitled “Judgment, Sentence and Order Placing Defendant on Probation During Portion of Sentence,” which purports to adjudicate appellants guilty of both the “manufacture” charge in count two and the “possession” charge in count one. Upon remand, the trial judge is instructed to clarify his intent by modifying or vacating one of these conflicting judgments. If the purpose of the second form of judgment was to set out the conditions of probation being imposed, we suggest that such conditions be set forth in a separate order appropriately titled and specifying such conditions.

Appellants’ motion for rehearing is DENIED. The appellee’s motion for modification is GRANTED, and our opinion is modified to the extent that it indicated appellants could not be convicted and sentenced for both manufacture and possession. This case is REMANDED for proceedings necessary to clarify the judgment.

WENTWORTH and THOMPSON, JJ., concur.

      . That count alleged a violation of Section 893.-13(l)(e), Florida Statutes (1981), which provides:
      It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 750.084.

      . That count alleged a violation of Section 893.-13(l)(a), which provides in part:
      Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to:
      * * * * * *
      2. A controlled substance named or described in s. 893.03(l)(c), (2)(c), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.

      . Appellants have correctly noted that possession of cannabis is not a lesser-included offense of manufacture or possession of cannabis with intent to distribute because both offenses are punishable as third-degree felonies. Ray v. State, 403 So.2d 956 (Fla.1981). However, as noted by the Supreme Court in Bell:
      For double jeopardy purposes, lesser included offenses are tantamount to the greater offense charged if all the constituent essential elements of such lesser offenses are included within the elements of such greater offense. 437 So.2d at 1058.
      In other words, for double jeopardy purposes, two offenses are considered to be the “same” offense if one of the offenses fails to require proof of an element not required by the other offense. Although possession is not a lesser-included offense of manufacture or possession with intent to distribute, because both offenses are punishable as third-degree felonies, they are considered the "same” offense for double jeopardy purposes.

      . Appellants, in the statement of the case and facts in their brief, simply state that appellants were found guilty as charged in count two without distinguishing between these two offenses. The appellee’s brief unqualifiedly accepted the appellant’s statement of the case and facts, and we accepted that statement without further inquiry. Appellant’s brief did not comment that any distinction should be made between these two offenses charged in the same count of the information.

      . The standard jury instruction on "manufacture” of a controlled substance in violation of Section 893.13(l)(a) does not include possession as an essential element.


author: PER CURIAM.

text:
    Mary JAROTZ, Appellant, v. Edward JAROTZ, Appellee.
    No. 82-2527.
    District Court of Appeal of Florida, Second District.
    July 27, 1983.
    Rehearing Denied Sept. 12, 1983.
    Robert K. Hayden, Clearwater, for appellant.
    H.H. Baskin, Jr. of Baskin & Bennison, Clearwater, for appellee.
   PER CURIAM.

Affirmed. See Shipp Corporation, Inc. v. Charpilloz, 414 So.2d 1122 (Fla. 2d DCA 1982).

RYDER, A.C.J., CAMPBELL, J., and CHEATWOOD, J.C., Associate Judge, concur.


text:
    In re ESTATE OF Audra R. FLEMING, Deceased. George O. KLUTTZ and Sheldon E. Finman, Appellants, v. Arthur Ray FLEMING, Appellee.
    No. 82-2608.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.

      George O. Kluttz, P.A., Fort Myers, for appellants.
    Norman A. Hartman, Jr. of Goetz & Hartman, Fort Myers, for appellee.
   PER CURIAM.

Affirmed. See Rosenhouse v. Ever, 150 So.2d 732 (Fla. 3d DCA 1963).

RYDER, A.C.J., CAMPBELL, J., and SANDERLIN, JAMES B., Associate Judge, concur.


text:
    James L. BATES, Appellant, v. STATE of Florida, Appellee.
    No. 83-340.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Hoesley, 427 So.2d 1077 (Fla.2d DCA 1983).

BOARDMAN, A.C.J., and DANAHY and LEHAN, JJ., concur.


text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. I.S. COOPER, M.D., Appellee.
    No. 83-916.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.
    G. Hunter Gibbons of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellant.
    Ronald A. Cyril of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for ap-pellee.
   PER CURIAM.

AFFIRMED. See Kent v. Sutker, 40 So.2d 145 (Fla.1945).

BOARDMAN, A.C.J., and DANAHY and LEHAN, JJ., concur.


author: BOARDMAN, Judge.

text:
    Lena RATINSKA, individually and as Trustee of TaHo Lounge, Inc., a dissolved Florida corporation, Appellant, v. ESTATE OF Roman DENESUK, deceased, and Sadie Denesuk, Appellees.
    No. 82-2252.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1983.

      Ernest S. Marshall, Bradenton, for appellant.
    Thomas W. Stewart, Bradenton, for ap-pellees.
   BOARDMAN, Judge.

Appellant sought a declaratory judgment determining 1) whether the real property in question was owned by appellant as the surviving joint tenant with right of surviv-orship or by appellant and the estate of her deceased son, Roman Denesuk, as tenants in common and 2) any sums due either party by the other for mortgage, tax, and insurance payments made on the property. The trial court ruled that appellant and the estate were tenants in common and awarded appellant $3502.98 for tax and mortgage payments made on the property. Appellant challenges both rulings on appeal. We reverse.

Appellant was originally the sole owner of the property in question, which she acquired in 1951. Someone else was managing the property for her, but became ill and unable to continue managing the property. Therefore, the decedent agreed to move to Florida and help appellant. On January 16, 1970, appellant deeded the property to herself and the deceased “as joint tenants with right of survivorship and not as tenants in common.”

Section 689.15, Florida Statutes (1981), which has not been substantially changed since 1941, provides in pertinent part:

[Ejxcept in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of sur-vivorship; ....

(Emphasis added.) There are no limitations on who the grantor or who the grantee may be.

The Florida Supreme Court has held that a direct conveyance from a husband and wife to the wife and a daughter of the wife with right of survivorship was authorized by section 689.15 and did not violate the four unities of interest, title, time, and possession. LaPierre v. Kalergis, 251 So.2d 885 (Fla. 1st DCA), approved in part and disapproved in part, 257 So.2d 33 (Fla.1971).

In D.A.D., Inc. v. Moring, 218 So.2d 451 (Fla. 4th DCA 1969), the grantor conveyed real property to herself and an unrelated adult, creating a joint tenancy with right of survivorship. Thereafter, the grantor, without the knowledge or consent of her joint tenant, executed a mortgage on the property. The holder of the mortgage filed suit for foreclosure, but the grantor died prior to the case coming to issue. The court held that the lien was a defeasible interest in the property and terminated upon the mortgagor’s death, the court specifically stating that the joint tenancy was authorized by section 689.15.

The trial court here mistakenly ruled that the four unities test is to be applied to the deed initially conveying title to appellant rather than to the subsequent deed from appellant to herself and the decedent.

Appellees argue that a conveyance from A to A and B is ineffective as a conveyance to A since “one person cannot occupy, at law, at the same time the position of both grantor and grantee in regard to the same property,” citing the three-justice dissent in Johnson v. Landefeld, 138 Fla. 511, 189 So. 666 at 668 (1939). However, contrary to appellee’s contention, the three-justice majority opinion in Johnson upheld the conveyance of real property by a husband to himself and his wife, noting that the unities (five in this case involving a tenancy by the entirety) had all been met.

Appellees further argue that in Florida National Bank of Jacksonville v. Gann, 101 So.2d 579 (Fla. 2d DCA 1958), this court upheld creation of two joint tenancies by deeds from the original owner to a strawman who reconveyed to the original owner and the other joint tenant. Appel-lees urge that by failing to comment on the grantor’s use of a strawman, this court implicitly placed its stamp of approval on this method and sub silentio upheld the necessity of its use. We disagree. The use of a strawman was not an issue in Gann. The fact that it was an acceptable method of obtaining the desired result does not make it the only available or even the most desirable method. We see no point in requiring that property be conveyed twice when a single conveyance is just as effective and has the virtues of economy and efficiency.

Because appellant sought payment from the estate for decedent’s share of taxes and mortgage payments on the property only in the event that the trial court ruled that the 1970 deed to appellant and the decedent created a tenancy in common, appellant is not entitled to any such payments under our holding that the deed created a joint tenancy with right of survivor-ship, making her sole owner of the property upon the death of the decedent. Therefore, the award to appellant of $3502.98 must also be reversed.

Accordingly, the amended final judgment is REVERSED and the cause REMANDED with directions to enter a new judgment ruling appellant to be the sole owner of the property.

CAMPBELL and LEHAN, JJ., concur.


author:
DANIEL S. PEARSON, Judge.
      BASKIN, Judge HUBBART, Judge

text:
    Jeffrey JOSEPH, Appellant, v. The STATE of Florida, Appellee.
    No. 81-591.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.

      Bennett H. Brummer, Public Defender and Leon E. Sharpe, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James and Jack B. Ludin, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BAS-KIN, DANIEL S. PEARSON and FERGUSON, JJ.

       JORGENSON, J., did not participate in the decision of the court.

   ON REHEARING EN BANC

DANIEL S. PEARSON, Judge.

When it appeared that a majority of the panel which heard Joseph’s appeal concluded that the introduction of evidence of a crime collateral to the offense charged necessitated a reversal of Joseph’s convictions, and that this conclusion directly conflicted with the earlier affirmance by a different panel of this court of the convictions of Joseph’s co-defendant at trial, who had sought relief on the identical ground, see Neal v. State, 414 So.2d 1146 (Fla. 3d DCA 1982), this court, on its own motion, decided to consider the above case en banc, without argument. Having now so considered the case, we reverse Joseph’s conviction and remand for a new trial.

Joseph and one Billy Gene Neal were charged in an information with the sexual battery and kidnapping of a Haitian female, H.B., alleged to have occurred on August 30, 1980. By separate information, these same two defendants were charged with the same offenses said to have been perpetrated against another Haitian female, I.G., on September 5, 1980. Pursuant to Section 90.404(2)(b)l, Florida Statutes (1979), the State notified Joseph that it intended to introduce evidence of both offenses in the trial of each information. Joseph filed pretrial motions in both cases to exclude the introduction of the offense collateral to the crime charged in the particular information upon which he was to be tried. The trial court denied the motions, and, based on that denial, Joseph moved to consolidate the two cases for trial.

Joseph’s primary point on appeal is, of course, that the trial court erred in permitting the State to adduce evidence of the August 30 and September 5 crimes in the same case. He contends that the separate incidents did not share a uniqueness about the perpetrator of the offense or the manner in which the offenses were committed so as to tend to establish, independently of an identification of him by the victim of the collateral crime, that he committed the crime charged. See Sias v. State, 416 So.2d 1213 (Fla. 3d DCA 1982); Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974).

His contention is met at the outset by the State’s argument that by moving to consolidate the two cases, thus insuring the introduction of the evidence of both crimes in the same trial, Joseph has waived any objection he might have had. We do not agree.

It is clear from the record that the motion to consolidate was made only because the trial court had ruled that the collateral crime evidence would be admitted, and that the asserted error of the trial court’s earlier ruling was preserved for review. To hold otherwise would be to force the defendant, the State and the court to go through two separate trials for no purpose other than to formalistically preserve an appellate point, which, in our view, would be a manifest waste of judicial time and labor.

Having decided that Joseph has not waived the point by moving to consolidate, we now address the merits. The State argues that the uniqueness shared by the offenses against H.B. and I.G. lies in the following “unusual” circumstances: in each instance the assailants approached the victim in a small car — either a Datsun or Toyota — which became the scene of the assaults; the assaults were perpetrated by two black males, one lighter than the other; on both occasions the lighter-skinned male drove the vehicle; the victims were abducted from a public street during nighttime hours; the assaults occurred in the same general area of Miami; a knife was used to threaten the victim in each case; and, finally, the victims were released after the assaults. Whatever significance might attach to these similarities pales in light of the dissimilarities between the offenses. One offense was committed at 10:15 p.m., the other at 6:00 a.m. One victim was abducted while in the company of a friend, the other was alone. H.B. was asked by the assailants to come closer to the car, the passenger of the car exited the car and abducted her. Only the passenger sexually assaulted H.B., while the driver sat indifferently on the hood of the car. I.G. was asked if she wanted a ride and if she wanted to buy jewelry, both assailants exited the car to abduct her, and both assailants sexually assaulted her. In the case of I.G., the driver peered in the window of the car and laughed while the passenger raped her. H.B.’s legs were tied and she was badly beaten during the assault; I.G. was not bound and, at most, was slapped. In the first episode there was no act of oral sex; in the second, both of the assailants demanded and received oral sex from the victim. H.B. testified that the passenger was armed with a knife and the driver unarmed; I.G. said the passenger had a gun and the driver a knife. Lastly, H.B. was offered a ride near her home when the assault concluded; I.G. was simply told she could leave. We conclude that these marked dissimilarities in the manner and method in which the crimes were perpetrated, as compared to similarities so general as to be found in a vast number of like crimes, render the evidence of the collateral crimes irrelevant, and therefore inadmissible, to establish the identity of the accused. See Davis v. State, 376 So.2d 1198 (Fla. 2d DCA 1979); Helton v. State, 365 So.2d 1101 (Fla. 1st DCA 1979); Banks v. State, 298 So.2d 543 (Fla. 1st DCA 1974); Davis v. State, 276 So.2d 846 (Fla. 2d DCA 1973); Franklin v. State, 229 So.2d 892 (Fla. 3d DCA 1969). Accordingly, we reverse the judgments of conviction and remand the cause for new and separate trials on each information, to be conducted in accordance with the views expressed in this opinion. Our decision makes it unnecessary to address the remaining points on appeal pertaining to appellant’s sentence. We do, however, address the matter of Neal’s convictions.

We are fully aware that the relief we have accorded Joseph cannot extend to Neal, whose appeal is not before us. Were we still within the same term of court when the mandate in Neal’s case issued, we would recall the mandate and reverse his convictions as well. See Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 138 So. 630 (1932). But our authority to recall the mandate in Neal’s case past the term in which it issued is highly questionable, if not clearly lacking.

However, our disability to recall the mandate in Neal’s case does not mean that Neal is without remedy and that his convictions must forever stand. Our system of justice, properly concerned with the finality of decisions, is flexible enough to allow that the doctrine of finality may give way “when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications.” Witt v. State, 387 So.2d 922, 925 (Fla.1980).

“Considerations of fairness and uniformity make it very ‘difficult to justify depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases.’ ” Id. at 925.

A majority of this court, sitting en banc, has concluded that under the facts of this case, evidence of the collateral crime was inadmissible and no waiver of objection occurred. It follows, of course, that we have also concluded that the panel in Neal’s case misapplied existing principles of law to the identical facts. We have, however, announced no new principle of law; and, since no change of law is involved, we think that the stringent requirements for collateral attack laid down in Witt v. State, supra, the concern of which was the retroactive application of a new rule of law, need not be met.

Witt simply determined “which ‘changes of law’ will be cognizable under this state’s post-conviction relief machinery.” Id. at 928. Absent a change of law, Witt is no impediment to Rule 3.850 relief, and such relief is available, as it has always been, to correct fundamental defects which inherently result in a miscarriage of justice and present exceptional circumstances justifying collateral relief. See Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Thus, presented with a situation not unlike the one at bar, the Court of Appeals for the Second Circuit, in United States v. Loschiavo, 531 F.2d 659 (2d Cir.1976), affirmed the district court’s order vacating the defendant’s conviction. Los-chiavo had been convicted of bribing one Morales, a deputy director of the New York Model Cities Administration. He claimed at trial that since Morales was an employee of New York City, rather than the federal government, Morales was not therefore a federal official within the meaning of the federal bribery statute. On direct appeal, Loschiavo’s conviction was affirmed. Shortly thereafter, the Second Circuit reversed the conviction of Del Toro and another defendant who had been separately accused of bribing Morales. The reversal was based on the ground that Morales was not a federal official, and thus, no federal crime occurred. In affirming the grant of collateral relief to Loschiavo, the court stated:

“The injustice of the case is sharply pointed up by reflecting that it was the same man, Morales, who received similar bribes in like circumstances from both Del Toro and Loschiavo. If then, this Court denied the petition and permitted the conviction of Loschiavo to stand, after it had reversed the conviction of Del Toro on the ground that the jury had been charged that it could find Morales was a. federal ‘public official’ when it knew that the same charge had also been given to the jury in Loschiavo’s case, the frustration and defeat of justice would be glaringly apparent to the most myopic and obtuse.” Id. at 667.

Here, were Joseph to be given a new trial and Neal denied one, we think the defeat of justice would be evident to even the blind and vacuous. Therefore, should Neal, without undue delay, move the trial court to vacate his convictions under Rule 3.850 in reliance on this decision, we direct the trial court to grant Neal such relief and a new trial.

Reversed and remanded.

BARKDULL, J., concurs in result only.

BASKIN, Judge

(dissenting).

To hold, as does the majority, that counsel may stipulate to proceeding to trial and then assert as error on appeal the trial court’s conduct in following that stipulation is to place trial judges in untenable positions. It was incumbent upon counsel to maintain his objection if he wished to challenge the court’s ruling in an appeal. His failure to do so constitutes a waiver of the objection. Requirements that litigants object, file motions, and renew motions and objections are designed to afford the trial court an opportunity to correct erroneous rulings. It is here that judicial economy lies. We are not confronted with an Ashby nolo plea situation in which counsel may proceed and still preserve a ruling for appeal because the appellate decision will dispose of the entire matter. There is no question of dispositiveness in these proceedings. I would hold that counsel’s concession that the cases be tried together forecloses review on that ground. I would therefore affirm the conviction.

If the merits were to be reached, I again disagree with the majority’ conclusion. Joseph’s defense was mistaken identity. Similar fact evidence may be used to establish identity and absence of mistake, Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Florida Evidence Code, section 90.404(2) Florida Statutes (1979), as long as there exists “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which there are individual manifestations” 2 Wigmore, Evidence § 304 (Chadbourn rev. 1979) (emphasis in original); see also Wilson v. State, 330 So.2d 457 (Fla.1976).

A comparison of the offenses discloses similarities with features so common they can be explained only by a general plan. For example, both assaults were committed in the back seat of a small Japanese automobile. On both occasions, the driver left the vehicle while the passenger raped the victim. Both assaults were committed by two black males, and the driver was the lighter-skinned male. Both victims were assaulted following abduction from public streets at night in the same Miami neighborhood. Each victim was threatened with the use of a knife. Both victims were released after the assaults. These similarities render evidence of the collateral crime admissible to establish identity. The trial court committed no error in its rulings.

For these reasons, I would affirm the conviction.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would decline to conduct an en banc hearing in this cause under Fla.R.App.P. 9.331(a) and would return the case for a decision on the merits to the three-judge panel of this court originally assigned to decide this matter. I think it is singularly inappropriate to invoke our extraordinary en banc jurisdiction in this case, particularly in the fashion in which it is accomplished herein.

I

At the outset, I do not think that a proper en banc hearing under Fla.R.App.P. 9.331(a) has been held in this case. This case was originally assigned to a three-judge panel of this court before whom the case was briefed and orally argued on the merits by the parties. Subsequently, a majority of the judges on the assigned panel sought an en banc hearing on this case because they wished to recede from a controlling decision of this court in a companion case, involving a co-defendant tried below at the same trial as the defendant Jeffrey Joseph, and raising the identical evidentiary point on appeal. Neal v. State, 414 So.2d 1146 (Fla. 3d DCA 1982). The court sitting en banc acceded to this request and voted to conduct an en banc hearing under Fla.R.App.P. 9.331(a). Since then, however, no such en banc hearing has ever been conducted. The parties have not filed any briefs or any memoranda or made any oral argument to this court en banc; indeed, the parties have not even been notified that this cause is now an en banc proceeding. I am certain they will find the court’s en banc decision today quite a surprise, as the last they heard this case had been submitted to a three-judge panel of this court. I, therefore, think it unwarranted for this court to decide this case en banc on the merits, as it does today, when in fact no en banc hearing has ever been held.

II

Beyond that, I think it most improvident to invoke our extraordinary en banc jurisdiction under Fla.R.App.P. 9.331(a) in order to overrule, as here, a prior controlling decision of this court, Neal v. State, supra, when (a) that decision was rendered in a companion case over which we have lost jurisdiction, (b) our refusal to follow the companion case is based solely on a disagreement with the prior court's application of a valid rule of law to a set of facts not likely to re-occur again, and (c) the overruling of the companion case is otherwise unjustified under the doctrine of stare deci-sis. This is particularly true when, as here, the court en banc is forced to invent an unauthorized, ad hoc, post-conviction remedy at the trial level in order to undo the result reached in the controlling companion case, which holding in itself is in conflict with a long and well-settled line of Florida decisions; we create thereby more mischief by overruling the companion case than we would had we followed it.

So far as I am aware, this is the first decision in the history of this state wherein an appellate court has refused to follow a prior controlling decision of the same court in a companion case over which the court has lost jurisdiction. Indeed, until today I thought it axiomatic that controlling decisions in such companion cases were binding on the court under the doctrine of stare decisis. See e.g., Rackley v. Slade, 141 Fla. 310, 193 So. 70 (1940); Balzebre v. 2600 Douglas, Inc., 273 So.2d 445 (Fla. 3d DCA 1973); Chatmon v. Lumbermens Mutual Casualty Co., 268 So.2d 551 (Fla. 3d DCA 1972); Metropolitan Dade County v. E.B. Elliott Advertising Co., 214 So.2d 511 (Fla. 3d DCA 1968). Agreed, we may in appropriate cases invoke our extraordinary en banc jurisdiction under Fla.R.App.P. 9.331(a) in order to recede from a prior decision of this court, In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982), but only, I would submit, when the doctrine of stare decisis permits an exception allowing us to do so. No such stare decisis exception has been invoked in this case, and, indeed, none could be invoked in order to reach the novel result arrived at herein. Absent such an exception, I think we are bound by our prior precedents whether we agree with them or not. Old Plantation Corp. v. Maule Industries, Inc., 68 So.2d 180, 183 (Fla.1953); State ex rel. Molter v. Johnson, 107 Fla. 47, 144 So. 299 (1932).

Admittedly, the doctrine of stare decisis is not inflexible and exceptions thereto have on occasion been recognized by the courts, but only in rare and unusual cases, else the law would be most unstable and entirely unpredictable. “Stare decisis is at least the everyday working rule of our law.” B. Cardozo, The Nature of the Judicial Process 20 (1921); “[f]or it is an established rule to abide by former precedent, where the same points come up again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” 1 W. Blackstone, Commentaries *69. “[T]he court which lays down the rule is not as a general proposition at liberty to depart from it, but must be consistent in its holdings and apply the same legal consequence to the same state of fact when it arises again.” R. Pound, “Survey of the Conference Problems: Status of the Rule of Judicial Precedent” 14 U.Cin.L.Rev. 324, 330 (1940). In Florida, the few decisions which have expressly overruled or altered prior controlling cases appear to fall, generally speaking, into three limited categories, none of which have any application to the instant case.

First, there are those cases in which a Florida court has overturned a rule of law established by its prior decisions on the ground that the rule had become outmoded or obsolete due to large-scale social and legal changes. Second, there are those cases in which the same court has overturned a rule of law established by prior precedent because its continued existence was considered fundamentally incorrect or unjust. Finally, there are those cases in which the same court has overturned a rule of law established by prior precedent because it conflicted with a contrary rule announced in another of the court’s controlling decisions, and the latter was thought to announce the better rule. These general categories, by no means exhaustive, are reflective of the overall common law exception to the doctrine of stare decisis which permitted a court of last resort in. rare eases to overrule or alter a rule of law established by one of its prior decisions when the rule was “evidently contrary to reason,” “clearly contrary to divine law” or “manifestly absurd or unjust,” in which event it was said that the former rule never was the law, having been erroneously declared at the outset as the established custom of the realm. 1 W. Blackstone, Commentaries 69. In a more modern context, the exception to the common law doctrine of stare decisis, which the above three categories reflect, has been restated as follows:

“It is the duty of a court of last resort to abide by its own former decisions, and not to depart from or vary them unless entirely satisfied, in the first place, that they were wrongly decided, and, in the second place, that less mischief will result from their overthrow than from their perpetuation. This is the proper application of the maxim, ‘stare deci-sis.’ ”
H. Black, Handbook on The Law of Judicial Precedents 10 (1912)

It is plain, in my view, that the instant case does not fall within the above three Florida categories of established departures from stare decisis or within the overall common law exception to the doctrine of stare decisis, as no rule of law is sought to be overturned or altered herein. Also, no issues of large-scale social and legal change or serious future injustice are involved which might otherwise challenge the continued existence of established rules of law. In addition, this is not a case in which we are resolving conflicting rules of law or questioning the correctness or wisdom of these rules as announced by prior precedent. Instead, the court herein refuses to follow the result reached in the companion Neal case solely because it disagrees with how the companion case has applied an otherwise valid and sound rule of law to a given set of facts not likely to re-occur again. That, I submit, is a totally insufficient basis for departing from the doctrine of stare decisis. See also R. Aldisert, The Judicial Process 777-877 (1976). Beyond that, as will be seen later, more mischief is created by overruling the companion case herein than by following it — which, again, places this case outside the common law exception to the doctrine of stare decisis.

Moreover, it should be clear that Fla.R. App.P. 9.331 is not in itself an exception to the doctrine of stare decisis. The rule does not entitle this court to order an en banc hearing whenever, as here, a majority of the assigned panel does not wish to follow a prior controlling decision of this court; such an en banc hearing is appropriate only when the doctrine of stare decisis otherwise admits an established exception permitting this court to overrule the prior precedent. Any other result would mean that this court en banc sits as a mini-supreme court over the panel decisions of this court, and is in no way bound by any panel decision rendered in the 26-year history of this court. If that is the law, the doctrine of stare decisis has been considerably undermined in this jurisdiction and an unconstitutional second court has, in effect, been created to review the panel decisions of this court. I emphatically disagree with such a result.

It is axiomatic that a judge is not a knight errant roaming at will in pursuit of the judge’s personal concepts of law and justice. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). A judge is bound by the prior precedents of the jurisdiction in which the judge serves whether he or she personally agrees with such decisions or not. We admit, I think, of a dangerous exception to this ancient rule of practice if we allow, as here, a district court of appeal en banc to pick and choose which of its own panel decisions it wishes to follow. We are generally bound by those panel decisions, until properly changed by the legislature or a higher court, whether we agree with such decisions or not; indeed, they are plainly the decisions of this court, they are in no sense second-class decisions rendered by an inferior court, and they are entitled to stare decisis effect. It therefore seems elementary that the en banc jurisdiction established by Fla.R.App.P. 9.331(a) in this court does not in itself create an exception to the doctrine of stare decisis; en banc hearings may be invoked under the rule in order to overrule prior decisions of this court only where the doctrine of stare decisis otherwise permits an established exception allowing us to do so. As no such exception has been or could be invoked in this case, I think it extremely improvident for this court to grant an en banc hearing herein in order to overrule our prior controlling decision in the companion case of Neal v. State, supra.

Finally, I think the court fashions an entirely unauthorized, ad hoc, post-conviction remedy under Fla.R.Crim.P. 3.850 in order to undo the result reached in the Neal decision, over which we have admittedly lost jurisdiction. In this connection, the court creates more mischief by overruling the Neal decision than it would had it followed Neal, which, again, places this ease outside the common law exception to the doctrine of stare decisis. Plainly, the court has established a new ground for collateral attack of a criminal conviction under Fla.R.Crim.P. 3.850, heretofore unknown under Florida law, for the benefit of the co-defendant Neal so as to avoid the patent injustice caused by our inconsistent rulings herein. It should be pointed out, however, that the injustice flowing from these inconsistent rulings is created only because this court refuses to follow the decision in the companion Neal case. I know of no decision in this state or this country which remotely supports such a novel result. The non-binding federal cases relied upon by the court in its opinion in no way deal with the fact pattern presented by this case [wherein an appellate court, as here, refuses to follow a companion case, creating thereby an injustice by its own inconsistent rulings] and, therefore, can offer no support for the court’s decision herein.

Indeed, I view the court’s decision herein allowing collateral attack relief for the co-defendant Neal as standing in conflict with those Florida cases which have long held that the erroneous admission of evidence at trial does not constitute a valid ground for collateral attack of a criminal conviction under Fla.R.Crim.P. 3.850. Without question, the only error which the court now belatedly concludes occurred at Neal’s trial was the erroneous admission at trial of collateral crimes evidence; this, as stated, is patently an invalid ground for collateral attack relief under Fla.R.Crim.P. 3.850 under the established law of Florida. We create, then, an unsettling conflict with an established line of Florida decisions in our effort to right the wrong created by our refusal to follow the companion Neal decision; and in so doing, we create more mischief by overruling Neal than we would had we followed it.

I dissent from the court’s decision to invoke our extraordinary en banc jurisdiction in this case.

HENDRY and BASKIN, JJ., concur.

       "THE COURT: The motion in limine is denied. Williams Rule request is granted.
      "Both defense objections are preserved for the record.
      "Now, in light of my position on Williams, the Court’s position is maybe we should consolidate the cases.
      "[ATTORNEY FOR CO-DEFENDANT): I have that written motion to file with the Court. It’s a motion to consolidate and it specifically states that 'Both of the offenses charged in this case triable before this Court, involve identical parties and now, involve substantially similar witnesses.’

      “THE COURT: Here's what I am going to do: I am granting the motion to consolidate. "Now, in light of that statement by the Court, if, of course, the State wants to withdraw your Williams Rule tomorrow, for presentation, then we will proceed. Then, I will vacate the motion to consolidate.
      “On the other hand, the Court will try both cases together and if you want to present your Williams testimony, then we are going to try all cases in one shooting match.
      "[ATTORNEY FOR CO-DEFENDANT]: Okay. For the record, let me state that the motion to consolidate was filed on the premise and that’s why I waited until right now that the Williams Rule evidence, the motion would be granted, and be presented that way.
      "THE COURT: Did you join in the motion to consolidate?
      “[JOSEPH'S ATTORNEY]: Yes, Judge, only because my motion in limine prohibiting Williams Rule was denied.
      "THE COURT: Okay.
      "[ATTORNEY FOR CO-DEFENDANT]: That’s my basis, too.
      "THE COURT: Okay.
      "Both of you guys have got that in the record to protect your Appellate motions.”

      . In State Farm Mutual Automobile Insurance Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981), the court held that the en banc hearing rule does not extend the power or jurisdiction of the district courts to recall their mandates past the term of issuance for the sole purpose of resolving in-tradistrict conflicts. It could be said that since our purpose in recalling the mandate in Neal’s case would be to prevent a miscarriage of justice, not to resolve an intradistrict conflict, we are not prevented by State Farm from recalling Neal’s mandate out of term. But see Westberry v. Copeland Sausage Co., 397 So.2d 1018 (Fla. 1st DCA 1981). However, we take little comfort in such a narrow and perhaps strained reading of State Farm. We take even less comfort in Lovett v. State, 29 Fla. 384, 11 So. 176 (1892), which allowed that the "court has the power at any time to amend its judgment if it is erroneous by reason of a misentry of the clerk, or by reason of any other mistake, or that such judgment may be set aside and treated as a nullity if it has been procured by fraud, or is the result of misapprehension,” id. 11 So. at 180 (emphasis added). In our view, the present case does not come within the Lovett exceptions. Last, we have considered The Florida Bar v. Schreiber, 420 So.2d 599 (Fla.1982), as possible precedent, but find no indication therein that a recall of mandate, as distinguished from an opinion without mandate, was involved.

      . The court held in Witt that “an alleged change of law will not be considered in a capital case under Rule 3.850 unless the charge: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” 387 So.2d at 931.

      . It appears that Loschiavo did not raise on direct appeal his claim concerning Morales’ status.

        State v. Ashby, 245 So.2d 225 (Fla.1971).

      . See e.g., Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (contributory negligence rule in tort actions overruled); Gates v. Foley, 247 So.2d 40 (Fla.1971) (rule precluding a wife from obtaining tort recovery for loss, of consortium overruled); Shingleton v. Bussey, 223 So.2d 713 (Fla.1969) (rule that a defendant’s liability insurer in negligence actions cannot be joined as a party defendant overruled); Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957) (rule that a municipality is immune from liability for the torts of its police officers overruled); Randolph v. Randolph, 146 Fla. 491, 1 So.2d 480 (1941) (common law rule that a father has a superior right of guardianship over minor children in child custody cases overruled); Layne v. Tribune Co., 108 Fla. 177, 146 So. 234 (1933) (common law rule on libel per se modified as applied to a modern newspaper); Christopher v. Mungen, 61 Fla. 513, 55 So. 273 (1911) (rule precluding the children of former slaves from inheriting property overruled); see also West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976) (altering, in effect, prior Florida law by adopting a strict liability in tort doctrine in products liability cases).

      . See e.g., Wallace v. Luxmoore, 156 Fla. 725, 24 So.2d 302 (1946) (rule precluding a court of equity from assuming jurisdiction in a probate matter altered); Therrell v. Reilly, 111 Fla. 805, 151 So. 305 (1932) (rule precluding a bank from increasing its capital stock without securing an amendment to its charter overruled); Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931) (rule precluding tort recovery from a tortfeasor's estate overruled); Western Union Telegraph Co. v. Wilson, 32 Fla. 527, 14 So. 1 (1893) (rule of damages applicable in a contract action overruled); Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164 (Fla. 5th DCA 1980), aff’d, 413 So.2d 1 (Fla.1982) (rule precluding a trial judge from refusing to accept an affidavit filed with a motion for rehearing on a summary judgment, overruled); see also McHale v. Farm Bureau Mutual Insurance Co., 409 So.2d 238 (Fla. 3d DCA 1982) (rule on measure of damage in negligence actions involving damage to personal property as announced in two prior Third District decisions, overruled) (may be technically bad law as this is a panel opinion, rather than an en banc opinion, see In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982)).

        . See e.g., The Florida Bar v. Kimball, 425 So.2d 531 (Fla.1982) (selecting correct rule regarding reinstatement of a disbarred attorney from among court’s own conflicting precedents); Garner v. Ward, 251 So.2d 252 (Fla.1971) (resolving conflicting interpretations of wrongful death statute, disapproving court's own prior cases insofar as they conflicted); Williams v. State, 110 So.2d 654 (Fla.1959) (resolving court’s own conflicting interpretations of rule regarding admissibility of similar crimes evidence); Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980) (resolving a conflict among the court’s own cases as to whether a valid counterclaim for abuse of process could be directed against process served in the main action).

      . See e.g., Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981); Nelson v. State, 281 So.2d 49 (Fla. 3d DCA 1973); Whitlow v. State, 256 So.2d 48 (Fla. 2d DCA 1971); Kish v. State, 253 So.2d 889 (Fla. 3d DCA 1971); Sellers v. State, 249 So.2d 519 (Fla. 3d DCA 1971); Garner v. State, 218 So.2d 460, 463 (Fla. 2d DCA 1969); Paulk v. State, 211 So.2d 591 (Fla. 2d DCA 1968); Robinson v. State, 194 So.2d 29 (Fla. 2d DCA 1967); Brown v. State, 187 So.2d 669 (Fla. 3d DCA), cert. denied, 192 So.2d 485 (Fla.1966); Ziegler v. State, 180 So.2d 477 (Fla. 3d DCA 1965); Coyner v. State, 177 So.2d 715, 717 (Fla. 3d DCA 1965); Chayter v. State, 176 So.2d 382 (Fla. 3d DCA 1965); Kirkland v. State, 165 So.2d 774 (Fla. 3d DCA 1964); Duncan v. State, 161 So.2d 718 (Fla. 3d DCA 1964); Austin v. State, 160 So.2d 730, 732-33 (Fla. 2d DCA), appeal dismissed, 164 So.2d 579 (Fla.1964).


text:
    John BOSTROM, Appellant, v. STATE of Florida, Appellee.
    No. 83-1470.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.
   PER CURIAM.

Dismissed. Monroe v. State, 371 So.2d 683 (Fla.2d DCA 1979).

HOBSON, A.C.J., and DANAHY and SCHOONOVER, JJ., concur.


text:
    Otis COUTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-55.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1983.

      Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal in this case, we find that the appellant has failed to demonstrate any reversible error, and therefore, we affirm the judgment and sentence. However, since the trial court adjudicated the appellant insolvent, we strike that portion of the judgment ordering him to .pay $10 to the Crimes Compensation Fund and $4 to the Law Enforcement Training and Correctional Officer’s Training Trust Funds. Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983).

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


text:
    Steve Allen BULLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-931.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1983.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Commonwealth v. Monroe, 580 S.W.2d 722 (Ky.Ct.App.1979).

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


author: NESBITT, Judge. DANIEL S. PEARSON, Judge,

text:
    Raul MOLINA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-870.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

In the first appearance of this case, we reversed the defendant’s conviction because the investigating officers stated that after interviewing two non-testifying co-defendants they arrested Molina and placed his picture in a photo lineup for identification by the victim. Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981). Relying upon our prior decision in Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981), pet. for review denied, 411 So.2d 384 (Fla.1981), this court held that that testimony inferred an identification of defendant by the co-defendants and was therefore impermissible. Because the only other evidence against Molina was a severely challengeable eyewitness identification by the victim, the court found the error to be harmful.

It appears that our previous decision was in vain because, on re-trial, the same prosecutor asked the same witness about his contact with the co-defendant, but used the word “meet” rather than “speak” in making this inquiry. The defendant promptly moved for a mistrial and, in the ensuing argument thereon, the state represented to the court that it would introduce an incul-patory statement by the defendant which had not been available at the first trial. Accordingly, the trial judge ruled that there was error but found it to be harmless.

The state concedes that there was error created by the prosecutor’s question and thus the only issue is whether this error requires a second new trial. The admission which the state relies on in support of a harmless error theory was one made to the corrections officer in broken English in which Molina allegedly stated that the eyewitness could not have identified him because he had a mask over his face. On cross-examination, however, the officer indicated that the defendant had difficulty comprehending and speaking English. Thus, while at first glance the inculpatory statement would seem to provide overwhelming evidence of guilt, on closer examination, we are not satisfied beyond a reasonable doubt that the error did not contribute to a conviction. For this reason, we find that a new trial is required. Tacoronte v. State, 419 So.2d 789 (Fla. 3d DCA 1982).

We will not elaborate further on the prosecutor’s behavior in the present case other than to state that, true to our promise in Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982), we direct the Florida Bar Grievance Committee’s attention to this matter.

The defendant’s conviction must once again be reversed and remanded — this time, hopefully for a fair trial.

DANIEL S. PEARSON, Judge,

concurring.

I do think it necessary to elaborate further on the prosecutor’s behavior in the present case, lest it appear to anyone that his conduct is attributable to inadvertence or ignorance and that he is an unfortunate early victim of our recently announced policy of invoking disciplinary procedures in appropriate cases. See Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982).

It quite clearly appears from this record that the prosecutor deliberately set about to circumvent our holdings in Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981), and Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981), rev. denied, 411 So.2d 384 (Fla.1981), by asking the witness whether he met with rather than spoke with the co-defendants before arresting Molina. If I were convinced that the distinction between met with and spoke with was even arguably more than semantic (that is, that the prosecutor could hold a reasonable belief that a jury would not infer that the co-defendants had implicated Molina when they heard that the officer met with the co-defendants and then went out to arrest Molina), I might conclude that this prosecutor suffers from a terminal case of literalism and might not find his conduct to be deserving of referral to the Florida Bar Grievance Committee. However, there are two things which convince me that the prosecutor was fully aware that the testimony of met with was as inadmissible as spoke with and that he set about to place it before the jury anyway.

First, the prosecutor evidently had carefully noted that in both Molina and Postell, we reversed the convictions only after finding that the error was harmful in light of the insubstantial other evidence in the case. Armed now with what he thought to be substantial other evidence, that is, the defendant’s inculpatory statement to the corrections officer, the prosecutor elicited the offensive testimony fully prepared to argue that its admission was harmless error in light of the defendant’s inculpatory statement. But when we say that something is error, whether we call it harmful or harmless affects only the outcome of the case being reviewed. Merely because error can be rendered harmless because of other evidence, it is error nonetheless. Although a conviction in a strong case may be affirmed on a harmless error theory, that is not an invitation to prosecutors to commit the error and does not in any way affect their obligation to avoid deliberately eliciting inadmissible testimony in order to further tip the scales against the defendant.

Second, a distinct and separate, but remarkably parallel, trial incident further convinces me that the prosecutor’s behavior was disingenuous. Molina had not testified in his first trial nor made any post-arrest statements. He did, however, testify at his retrial, stating in essence that at the time of the crime he was playing pool in a bar. On cross-examination, the prosecutor asked Molina:

“Isn’t it a fact, Mr. Molina, that the very first time we have heard about you being in a bar playing pool, drinking and speaking to some lady, who is a niece of the bar owner, in all of the three years [since your arrest] including an entire jury trial ... is right here today, that’s the first time we’ve heard about it?”

Defense counsel objected and moved for a mistrial before the question was answered. After the motion was denied, the prosecutor stated:

“Wait a minute, Judge. We need an answer to that question, but we have no further questions?”

A moment later he said:

“In fact, Judge, I’m going to strike the question. We don’t need an answer to it.”

It is crystal clear that this questioning, whether it related to the defendant’s silence after his arrest or at the time of his first trial, was calculated to bring forth an impermissible comment on the defendant’s right to remain silent. See Simpson v. State, 418 So.2d 984 (Fla.1982) (questioning of defendant concerning his failure to testify before the grand jury investigating the crime); Willinsky v. State, 360 So.2d 760 (Fla.1978) (questioning of defendant concerning his failure to testify at preliminary hearing); Cooper v. State, 413 So.2d 1244 (Fla. 1st DCA 1982), rev. denied, 421 So.2d 518 (Fla.1982) (questioning of defendant concerning his silence at prior trial); Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977) (questioning of defendant concerning his failure to give exculpatory explanation at any time prior to his trial testimony). See also Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982). Had the defendant, over his objection, • been compelled to admit to his prior silence, automatic reversal of his conviction would have been required. See, e.g., Simpson v. State, 418 So.2d 984; Clark v. State, 363 So.2d 331 (Fla.1978); Willinsky v. State, 360 So.2d 760; Bennett v. State, 316 So.2d 41 (Fla.1975); Rojas v. State, 412 So.2d 71 (Fla. 3d DCA 1982); Peterson v. State, 405 So.2d 997 (Fla. 3d DCA 1981); Barnes v. State, 375 So.2d 40 (Fla. 3d DCA 1979). Because these propositions are so clear, I am convinced that this experienced prosecutor fully expected that his^question would be objected to, the objection would be sustained, and no answer from the defendant would be forthcoming. Even worse is that the prosecutor was prepared to defend the propriety of asking a question which he knew could not be answered without causing a mistrial by asserting that since it was not answered no error occurred. This time he relied on Monroe v. State, 396 So.2d 241, 242 (Fla. 3d DCA 1981), modified on other grounds, 406 So.2d 1115 (Fla.1981), where this court held that no error is committed where such a question goes unanswered, since no inference can be drawn that the defendant would have answered one way or the other. But we also said in Monroe that “we do not commend the prosecutor's question of the defendant,” the design of which, although frustrated by lack of answer, was to elicit an answer which would prejudice the defendant. Id. at 243-44.

Thus, as I see it, the prosecutor consistently tried to get before the jury matters which he knew or should have known they were not entitled to receive. Even had their receipt ultimately proved to be harmless error, the prosecutor’s conduct was inexcusable.

SCHWARTZ, C.J., concurs in the opinions of both Judge NESBITT and Judge PEARSON.

      . I think Monroe is clearly distinguishable, because here the prosecutor commented: "We don't need an answer to it.” That comment itself suggests that the defendant’s answer would have been that this is the first time he told this story and would therefore be a comment on the defendant’s prior silence.


text:
    Sandra Jean BUTLER, Appellant, v. MODERN GRAPHIC ARTS, INC., a Florida corporation, Appellee.
    No. 83-254.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1983.
    Daniel C. Kasaris of Yanchuck, Thompson & Young, P.A., St. Petersburg, for appellant.
    William C. Ballard of Fisher & Sauls, P.A., St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. See Coney v. International Mining & Chemicals Corp., 425 So.2d 171 (Fla. 2d DCA 1983).

HOBSON, A.C.J., and DANAHY and LE-HAN, JJ., concur.


text:
    KIM OANH THI LY and Ha Nguyen, Appellants, v. Andrew WILKERSON and Bayfront Medical Center, Appellees.
    No. 83-71.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1983.
    Rehearing Denied Oct. 27, 1983.
    Joseph P. McNulty of McNulty, Moritz, Pecarek & Dickey, Largo, for appellants.
    C. Howard Hunter of Greene, Mann, Rowe, Stanton, Mastry, & Burton, Tampa, for appellees.
   PER CURIAM.

Affirmed. See Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DCA 1977).

HOBSON, A.C.J., and DANAHY and LE-HAN, JJ., concur.


author: JORGENSON, Judge.

text:
    ORPHEUS INVESTMENTS, S.A., Appellant, v. RYEGON INVESTMENTS, INC., a Florida corporation, and Rigo Investments, Inc., a Florida corporation, in their corporate capacity and doing business as Champlain Towers North Associates, a Florida general partnership, Appellees.
    No. 83-79.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.

      Fine, Jacobson, Block, Klein, Colan & Simon and Mitchell R. Bloomberg, Daniel Retter, Miami, for appellant.
    Buchbinder & Elegant, P.A., and Harris J. Buchbinder, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

This appeal presents the question of whether the trial court properly applied the limitation of action period to time bar a complaint filed pursuant to the Interstate Land Sales Full Disclosure Act. In light of the facts and applicable law we find that the trial court did not err and, therefore, affirm.

On January 30, 1980, Orpheus Investments contracted to purchase a condominium from Ryegon Investments and Rigo Investments. It is alleged that at the time the contract of sale was entered into Rye-gon and Rigo had failed to comply with certain requirements of the Interstate Land Sales Full Disclosure Act [of 1968], Pub.L. No. 90-448, §§ 1401-22, 82 Stat. 590-99 (1968) (current version at 15 U.S.C. §§ 1701-20 (1982)) [hereinafter cited as 1968 Act], thereby bestowing upon Orpheus the option of equitable relief from the contract, see 1968 Act §§ 1404, 1410. On May 15, 1980, Orpheus made the last of multiple deposit payments required by the contract of sale. Contained within the 1968 Act as these events occurred, and enacted contemporaneously with the other provisions of the 1968 Act, was a two-year limitation of action period. See 1968 Act § 1412. On June 21, 1980, however, certain amendments to the 1968 Act became effective, see Housing and Community Development Amendments of 1979, Pub.L. No. 96-153, §§ 401-10, 93 Stat. 1122-32 (1979) (codified in current version at 15 U.S.C. §§ 1701-20 (1982) [hereinafter cited as 15 U.S.C.], including an amendment which increased the applicable limitation of action period to three years, see 15 U.S.C. § 1711. On May 7, 1982, Orpheus began an action for rescission of the contract of sale, invoking in its complaint “15 U.S.C. § 1701 et seq.” Ryegon and Rigo’s motion to dismiss the complaint on the ground that it was filed more than two years after the formation of the contract of sale was granted.

Orpheus argues that its complaint was timely because (1) the limitation of action period did not begin to run until May 15, 1980, when the last deposit payment was made and (2) if the limitation of action period did begin to run on January 30, 1980, the amendment increasing the limitation of action period from two to three years should be applied retroactively to include Orpheus’s cause of action although it arose prior to the effective date of the amendment.

When an action founded upon a con-gressionally-created right is brought in a state court, as is the case here, the state court will apply the relevant federal statute of limitation along with the federal rules on tolling and other ancillary matters. See Burnett v. New York Central Railroad, 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (1926); Mayfield v. Richards, 115 U.S. 137, 5 S.Ct. 1187, 29 L.Ed. 334 (1885); Mitchell v. Clark, 110 U.S. 633, 4 S.Ct. 170, 28 L.Ed. 279 (1884); 51 Am.Jur.2d Limitation of Actions § 75 (1970); 10 Fla.Jur.2d Conflict of Law § 49 (1979).

The 1968 Act, which was in effect during the period of January 30 to May 15, 1980 (on one of which dates, it is alleged, the limitation of action period began to run), created a new right of action not available at common law, a right of action upon which Orpheus rests its complaint. The 1968 Act provides that failure to comply with those requirements of the 1968 Act which Ryegon and Rigo allegedly failed to comply with constitutes an actionable violation of the 1968 Act if the compliance does not occur “in advance of the signing of any contract or agreement for sale,” 1968 Act § 1404(a)(1). By the language of the 1968 Act, the violations Orpheus complains of are of such a nature that they can only occur, they in fact spring into being, at the moment the contract of sale is entered into. The omissions become such at the moment of contract formation, not at some later moment of contract fulfillment. The alleged violations upon which Orpheus based its complaint occurred, if at all, on January 30, 1980, when the contract of sale was entered into, and not on May 15, 1980, when Orpheus made its last deposit payment. The two-year limitation of action period, therefore, began to run on January 30, 1980. See also Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036 (10th Cir.1980) (limitation of action period of the 1968 Act begins to run upon contract formation), and the cases cited therein; H.R.Rep. No. 96-706, 96th Cong., 1st Sess. 88, reprinted in 1979 U.S.Code Cong. & Ad.News 2402, 2447 (explaining the 1979 amendment as enacted and rejecting an earlier version of the amendment which would have delayed the beginning of the limitation of action period until the last payment on the contract of sale or until conveyance of the deed, whichever occurred first).

The question remaining is whether, once the two-year limitation of action period began to run, the subsequent extension of the limitation of action period to three years retroactively included the already running period, that is, whether the amendment “applies to causes of action that were in existence at the time the amendment became effective,” Wisbey v. American Community Stores Corp., 288 F.Supp. 728 (D.Neb.1968). Wisbey contains the most recent and the only extensive survey of this issue from a federal perspective. Limitation of action periods, Wisbey tells us, may be divided into two categories: those that affect the right of action and those that affect merely the remedy which is sought in bringing the action. The former are distinguishable from the latter in that they attack not the. remedy, but the right, and are a condition of liability itself. Id. at 732. This comparatively rare breed of limitation of action period may be found where a right of action unknown to the common law is created by statute, and by the same statute the time for the enforcement of the right is fixed. Id. at 734. When, in enacting an amendment lengthening a limitation of action period which affects a remedy only, Congress makes no exception with respect to existing rights, a strong presumption is raised that it intended to make none, and the amendment will be applied retroactively. Id. at 733. But when the sort of limitation of action period which affects the right itself is amended, it has been the rule that the amendment will not be given retroactive application. Id. at 733-34. Compare Gahling v. Colabee Steamship Co., 37 F.Supp. 759 (E.D.Pa.1941) (remedy) and Chisholm v. Cherokee-Seminole Steamship Corp., 36 F.Supp. 967 (S.D.N.Y.1940) (remedy) with Bell v. Wabash Railway, 58 F.2d 569 (8th Cir.1932) (right) and Callahan v. Chesapeake & Ohio Railway, 40 F.Supp. 353 (E.D.Ky.1941) (right). The determinative test, when the right is congressionally created, is the location in the statutory scheme of the language creating the limitation of action period. Wisbey at 735. In Wisbey, as in Gahling and Chisholm, the limitation of action period under consideration was located in a statute of limitation separate and distinct from the statute creating the right, and was therefore given retroactive application. Another federal court, in considering the same limitation of action period as that in Wisbey and reaching the same result, observed that the limitation of action period and the right were not only located in different statutes, but were enacted on different dates. See Jackson v. Airways Parking Co., 297 F.Supp. 1366 (N.D.Ga.1969). Here, however, as in Bell and Callahan, the limitation of action period is contained within the statute creating the right, and the two were enacted contemporaneously.

We therefore hold that the limitation of action period here in question is one affecting not only the remedy, but the right itself, that the amendment to the limitation of action period was prospective in nature, and that the amendment did not encompass Orpheus’s cause of action.

Affirmed.

      . We note that were Florida law here applicable the answer would be, absent an "express, clear or manifest" legislative intent to the contrary, an emphatic “no." See Homemakers, Inc. v. Gonzales, 400 So.2d 965 (Fla.1981); Alford v. Summerlin, 423 So.2d 482 (Fla. 1st DCA 1982); Regency Wood Condominium, Inc. v. Bessent, Hammock & Ruckman, Inc., 405 So.2d 440 (Fla. 1st DCA 1981). We note also that this restrictive application of enlarged limitation of action periods is the minority view and has been greatly criticized. See Gonzales at 968 (England, J., dissenting); Case Note, 9 Fla.St.U.L.Rev. 707 (1981).

      . This is the majority view, to which Florida does not subscribe. See note 1, supra.


text:
    Elisa SEGARRA and Raphael Segarra, husband and wife, Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellee.
    No. 83-49.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1983.
    Robert J. Shapiro of Spector & Shapiro, and Timothy F. Anderson of Mulholland, Anderson & McCue, Tampa, for appellants.
    E. Robert Miller, Jr. and Joseph S. Silver of Miller, McKendree & Somers, Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Rivera v. Southern American Fire Insurance Co., 361 So.2d 193 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1372 (Fla.1979). See also section 631.57(l)(a)(3), Florida Statutes (1975).

BOARDMAN, A.C.J., and RYDER and CAMPBELL, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Byron Mark ELLISON, Appellant, v. STATE of Florida, Appellee.
    No. 83-567.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Rehearing Denied Dec. 2, 1983.
    Michael D. Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Defendant, Byron Mark Ellison, contends on appeal that the trial court erred in denying his motion for discharge under the speedy trial rule. We agree and, therefore, reverse.

Defendant was taken into custody in the instant matter on March 30, 1982. On July 9, 1982, the defendant, through his attorney, entered into a stipulation for extension of the speedy trial rule specifying a 60-day extension to the period. Thus, the original speedy trial period that would have expired on September 30, 1982, was extended by the July 9 stipulation to November 30, 1982. In response to the stipulation, the trial court rendered an order on July 15, 1982, reflecting the stipulation.

On September 20, 1982, a second stipulation for an extension of the 180-day speedy trial period was entered into by thé defendant with the specification that the speedy trial period would be extended for 60 days from September 20, 1982. On that date, the trial court entered an order anticipating the stipulation for extension of speedy trial, specifically finding that the speedy trial period for the defendant would be extended for 60 days by stipulation and finding that the provisions of Florida Rule of Criminal Procedure 3.191(f)(5) were applicable. The trial court ordered that the speedy trial period would be tolled for appellant consistent with such stipulation.

On September 30, 1982, the trial court recognized the stipulation of September 20, 1982, and entered an order on the same stipulation form extending the speedy trial period for 60 days from September 20, 1982, without mentioning exceptional circumstances. On December 3, 1982, the trial court entered an order based on exceptional circumstances, resetting the trial date to January 4, 1983, and thereafter the defendant filed a motion for discharge, which was denied.

The order of September 20, 1982, which made reference to rule 3.191(f)(5) does not extend defendant’s speedy trial period beyond the stipulated 60 days as contemplated in the stipulation. Moreover, the order of September 30, 1982, entered by the trial judge which incorporated the stipulation of September 20, 1982, came later in time and is controlling regardless of any construction of the order of September 20, 1982, mentioning exceptional circumstances. Thus, by the second stipulation entered into by the appellant on September 20, 1982, and the order incorporating such stipulation extending the speedy trial period for 60 days from September 20, 1982, the state was obligated to bring the defendant to trial on or before November 19, 1982. Once the 180-day period extended by 60 days passed on November 19, 1982, the trial court lost jurisdiction and the defendant was entitled to discharge. Sherrod v. Franza, 427 So.2d 161 (Fla.1983).

We hold, therefore, that the second order entered by the trial judge on September 30, 1982, nullified the trial court’s first order, and the defendant was entitled to rely on the order stating he had to be tried 60 days from September 20, 1982.

REVERSED AND REMANDED, and the trial court is directed to discharge the defendant.

DANAHY and LEHAN, JJ., concur.

      . Fla.R.Crim.P. 3.191.

      . Although the parties and the court refer to the expiration of the original speedy trial period as September 30, 1982, and the 60-day stipulation extending the speedy trial period to November 30, 1982, these dates were not precisely calculated. However, because the minor discrepancy is not determinative to the disposition of this case, they will be adopted in this opinion for clarity.


text:
    Aliza B. ADLER, Appellant, v. Philip ADLER, Appellee.
    No. 83-114.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellant.
    Thomas D. Casper of Yado, Keel, Nelson, Casper, Bergmann & Newcomer, P.A., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

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


author: PER CURIAM. FERGUSON, Judge

text:
    In re ESTATE OF Ralph James EDSELL, Jr., Deceased. Mary June EDSELL, Appellant, v. Lisa EVERED and John E. Edsell, Jr., Co-Personal Representatives, Appellees.
    No. 83-465.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied April 10, 1984.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Joseph F. Jennings, and W. Samuel Holland, for appellant.
    Steel, Hector & Davis and Robert W. Goldman, Andrew M. Tobin, and W. Peter Burns, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The ultimate question presented is whether the appellant, a pretermitted wife under the husband’s will, demonstrated by competent evidence that the pre-marital agreement signed by her was presumptively a product of her husband’s overreaching, thus shifting to the husband the burden of coming forth with evidence that the wife entered into the agreement voluntarily.

The evidence presented by the petitioner/wife, and adopted by the trial court in his extensive findings of fact, is essentially as follows.

The petitioner and the decedent, Ralph Edsell, met in 1978, when the petitioner was a guest at “The Moorings,” a resort owned and operated by the decedent in Islamorada. The decedent, who had been a lawyer in Long Island, New York, had owned and operated the Moorings since approximately 1975.

A relationship between the decedent and the petitioner developed, and they lived together at the Moorings for about three years prior to their marriage. During this period, the petitioner helped run the business, and apparently also did some other work, including (in 1981) selling handbags which she had painted. Also during this same period, petitioner and the decedent bought a home in Monson, Maine for a purchase price of $21,500. The down payment of $5,000 was paid one-half each by the petitioner and the decedent, and they took title to the property as joint tenants. They also purchased a lot in Islamorada for $9,000, with each party paying one-half in cash.

In addition to an interest in these properties, the petitioner’s assets as of the date of their marriage on February 7, 1981, included a savings account with a $3,000 balance, another savings account in Maine with an approximate balance of $1,000, a 1976 Buick with a value of approximately $1,200, and a money market fund with a balance of approximately $3,000. She also had a beneficial interest in the income of a discretionary trust created by the will of her father which had a principal value of $82,000. Her total assets, exclusive of the life interest in the income from the discretionary trust, were $15,200. By comparison, the decedent’s estate as of the date of his death was approximately $641,000.

The parties planned a small wedding for February 7, 1981. Arrangements were made for a minister and a church; the flowers and cake had been ordered; friends had been notified of the wedding date. Petitioner’s mother financed a honeymoon cruise which was to follow immediately after the wedding, and which was to include the mother, petitioner’s sisters and brothers and their spouses. On February 6, 1981, the date before the wedding, the decedent wrote out in long-hand a premarital agreement and gave it to petitioner to type. She typed the instrument and immediately signed it at his request in the living room with no one else present. The wedding ceremony took place as scheduled on February 7, 1981 in Islamorada.

At the conclusion of the petitioner’s case, respondents, the co-personal representatives, moved for a judgment of involuntary dismissal. After* hearing the arguments of counsel and after considering both the pleadings filed and the evidence presented by the petitioner, the court, applying the standards set forth in Lutgert v. Lutgert, 338 So.2d 1111 (Fla. 2d DCA 1976), granted the motion, holding that the wife had failed to adduce sufficient facts to raise any presumption of overreaching on the part of the husband. We disagree.

The parties agree that the Lutgert standard is applicable. In setting aside a premarital agreement, the Lutgert court focused on the following facts:

Passage had been booked for a honeymoon cruise to Europe; rings had been bought; a trousseau had been bought; all invitations to family and friends had been given; all arrangements otherwise had been made; an ultimatum had been delivered by the husband: “No agreement, no wedding”; and, obviously, there arose a sudden stark awareness of the potential immediate loss of a future life of enormous grandeur.

Lutgert, 338 So.2d at 1116. Appellees point to two factors as factually distinguishing this case from Lutgert: (1) the assets of the husband are approximately $641,000 as compared to the assets of Mr. Lutgert which were approximately $25,-000,000, and (2) the signing of the premarital agreement by the petitioner was not expressly a condition of the marriage. Lutgert v. Lutgert holds that a presumption of undue influence or overreaching arises in transactions between persons to be married when a pre-marital agreement benefits one of the parties in a grossly disproportionate fashion and there are sufficient coercive circumstances surrounding execution of the agreement. The presumption then places on the husband the burden of coming forth with evidence showing that the wife’s execution of the agreement was voluntary.

We agree that on the facts in Lutgert the finding of disproportionate benefits and coercive circumstances was relatively easy. To a lesser degree the benefits to the husband flowing from the agreement in this case were nonetheless grossly disproportionate. Although Mr. Lutgert clearly made the execution of the pre-marital agreement a condition of the marriage, the Lutgert case stands for the proposition that coercive circumstances may exist independent of an expressed ultimatum. Even in the absence of a communication that there would be no wedding without the agreement, the circumstances here suggest strongly that petitioner was under some compulsion to sign the agreement.

Petitioner carried her burden of showing that the husband’s benefit from the premarital agreement was grossly disproportionate to hers and that the circumstances surrounding the execution of the agreement were coercive. An involuntary dismissal at the end of the petitioner’s case was erroneous where the burden, having been carried by the petitioner, then shifted to the appellees to come forward with evidence on the issue of voluntariness. See Tillman v. Baskin, 260 So.2d 509 (Fla. 1972) (trial judge, when ruling on a defendant’s motion for involuntary dismissal following the presentation of a prima facie case by a plaintiff in a non-jury trial, cannot weigh evidence and enter judgment before the defendant’s defense evidence, if any, is presented).

Reversed and remanded for a new trial.

ON MOTION FOR REHEARING

We adhere to the original opinion dated November 8, 1983.

FERGUSON, Judge

(dissenting).

The trial court made extensive findings of facts, concluding that the widow had “failed to adduce sufficient facts to raise any presumption of overreaching on the part of the husband.” The trial court’s findings are supported by competent and substantial evidence and should not be disturbed by this court. Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982). Mary June Edsell, a competent woman who had some experience in running a business with her husband, and had lived with John Edsell several years before they married, simply failed in her burden to prove that the antenuptial agreement entered into with her husband was improperly obtained.

On rehearing appellees contend that, contrary to the statement in this court’s original opinion, they have never agreed that the rule from Lutgert v. Lutgert, 338 So.2d 1111 (Fla. 2d DCA 1976) controls this case. They are correct. I respectfully disagree with the application of Lutgert to aid the widow in proof of her claim by creating a presumption of undue influence, the effect of which is to shift to the estate of the deceased the burden to come forward with proof that the antenuptial agreement was not improperly obtained. The court which promulgated Lutgert has since held that the case applies only to dissolution of marriage proceedings where the other party is available to testify, and has no application to probate proceedings. Ellis First National Bank of West Pasco v. Downing, 443 So.2d 337 (Fla. 2d DCA 1983). The policy reasons are obvious. In most cases the only witness to circumstances surrounding execution of the antenuptial agreement is the other party whose lips are sealed by death.

Section 732.702(2), Florida Statutes (1983) makes valid all antenuptial agreements, even in the absence of a fair disclosure of the assets of each spouse’s estate, Weintraub v. Weintraub, 417 So.2d 629, 630 (Fla.1982), so long as the agreement in form complies with Section 732.701(1), and no evidence exists that any signatures were coerced or otherwise improperly obtained or that either spouse was incompetent at the time of signing. Downing. The legislature apparently intended that a spouse seeking to overturn such an agreement after the death of the other spouse carry a heavy burden in proving the invalidity of the agreement.

The majority opinion herein squarely conflicts with' Downing.

      . The agreement in its entirety is as follows:
      WHEREAS Ralph James Edsell Jr. and Mary June Drake desire to marry and to enter into a PRE-MARITAL AGREEMENT before said marriage and,
      WHEREAS each of said parties has been married before and divorced and,
      WHEREAS each of said parties has children by virtue of their former marriage and wish to provide for said children,
      NOW THEREFORE BE IT RESOLVED that:
      (1) neither party in the event of separation or divorce shall have any claim to alimony or other material benefits that might arise out of said marriage now or in the future and,
      (2) neither party shall have any spouses’ claim to the estate of the other.
      That the parties do freely and voluntarily enter into this PRE-MARITAL AGREEMENT having been fully advised of their rights and knowing fully the rights that each has waived and both parties state that in no way was the entering into this PRE-MARITAL AGREEMENT made a condition of marriage.
      IN WITNESS WHEREOF the parties have hereunto set their hands and seals this _ day of February, 1981.
      /s/_ RALPH JAMES EDSELL, JR.
      /s/_ MARY JUNE DRAKE

      . Section 732.702(2) provides:
      (2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.