author: LEHAN, Judge. GRIMES, Justice,

text:
    Mitchell LINEHAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1477.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

This case involves questions of whether voluntary intoxication is a defense to arson; whether voluntary intoxication is a defense to first degree (felony) murder; and whether the trial court was required to instruct the jury on second degree (depraved mind) murder when the defendant was indicted for first degree (felony) murder.

These questions appear to be matters of first impression in Florida. They are not readily answered under existing principles. As to when voluntary intoxication may be a defense to criminal charges, the law is not uniform. Numerous commentators and courts agree that the law relative to that defense is unclear and that existing tests to determine when that defense may be available do not produce consistent, meaningful results. Therefore, in this opinion we undertake not only to provide answers to the specific questions at hand but also to outline reasons for those answers, the nature of certain difficulties implicit in present approaches to those answers, relevant policy considerations, and conceivable ultimate solutions to the difficulties. We endeavor to add a measure of predictability to the law within the bounds of stare decisis. The voluntary intoxication defense potentially exists for numerous criminal offenses and therefore merits serious consideration.

Defendant was indicted for arson under section 806.01, Florida Statutes (1981), and for first degree (felony) murder under section 782.04(l)(a), Florida Statutes (1981). The jury found defendant guilty on both charges. At sentencing the arson conviction was merged into the first degree murder conviction. The court adjudicated defendant guilty of first degree (felony) murder under section 782.04(l)(a), Florida Statutes (1981), and, in accordance with the jury recommendation, imposed a life sentence, requiring a minimum term of 25 years.

Defendant contends that there was error in the refusal of the trial court to instruct on intoxication as a defense. We disagree and affirm the trial court on this point. Defendant also contends that the trial court erred in refusing to include in its first degree (felony) murder jury instructions a lesser included second degree (depraved mind) murder instruction. We must agree with this contention and reverse the first degree (felony) murder conviction. We find no merit in defendant’s remaining contentions.

Following defendant’s arrest as a suspect for the arson and an initial interview by a detective and a fire marshal official, a second interview was conducted by the same persons. After readvising defendant of his Miranda rights, the detective and fire marshall officially confronted appellant with contradictions from the initial interview. A few minutes into this interview appellant broke down and told them about actually starting the fire himself.

Defendant stated that on the day the fire occurred he had gone to St. Petersburg looking for his girl friend. During the afternoon, defendant went to several bars and to his girl friend’s apartment trying to locate her. That evening he returned to her apartment. After not finding her there, he went to the back of the apartment building, up the rear fire escape and apparently gained entrance through a window to her apartment. After entering the apartment, defendant lighted a cigarette and stood, smoking the cigarette and flicking his lighter. He held the flame of the lighter to curtains in the apartment and then departed.

The ensuing fire engulfed the apartment building. All occupants except one managed to escape. The unfortunate victim had, without the landlord’s permission, occupied a storage room for shelter during the night. The victim died from smoke inhalation.

A St. Petersburg Fire Department investigator testified that he found the area of deepest burn by a window in the apartment of defendant’s girl friend. He found no basis for the fire having started by accidental means, and he classified the fire as arson. Testimony from another fire investigator was that the fire pattern was consistent with curtains in the girl friend’s apartment having caught on fire and the fire having spread from there.

Two witnesses testified that they had seen defendant in an intoxicated state on the day of the fire. One of the witnesses testified that a few hours before the fire occurred she saw defendant at the building and that he was staggering. She also testified that she heard him mumble something about burning the building down. Later that evening, when the witness returned to the apartment building and found it in flames, she saw the defendant outside the building still staggering. The witness gave her opinion that the defendant was very drunk.

Defendant did not testify at the trial.

Voluntary Intoxication Is Not A Defense To Arson.

Defendant argues, and we agree, that voluntary intoxication is a defense to a “specific intent” crime, as contrasted with a “general intent” crime. See Cirack v. State, 201 So.2d 706 (Fla.1967); Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979). However, we find that arson under section 806.01, Florida Statutes (1981), is a general intent crime to which voluntary intoxication is not a defense.

Section 806.01 provides, in pertinent part:

(1) Any person who willfully and unlawfully by fire or explosion, damages or causes to be damaged:
• (a) any dwelling whether occupied or not, or its contents....

We construe the word “willfully” in the arson statute to mean that the accused need have had only a general criminal intent.

The distinction between “specific” and “general” intent crimes is nebulous and extremely difficult to define and apply with consistency. See Annot., 8 ALR 3d 1236 (1966). Although the difference between acts done deliberately and accidentally is not difficult to grasp, the “specific” versus “general” intent test requires a close distinction between different types of intent. The difficulty is compounded by a variety of different types of statutory wording to which to apply the distinction.

On the surface, particular statutes defining criminal offenses which contain the words “willfully” or “intentionally” might be thought to encompass “specific intent” crimes simply because they contain words denoting intent as a requisite mental state. However, that approach would ignore a fundamental concept of criminal law that there are three broad categories of crimes: (1) “strict liability” crimes (e.g., DWI manslaughter or statutory rape) which are criminal violations even if done without intent to do the prohibited act, see Baker v. State, 377 So.2d 17, 19 (Fla.1979); (2) general intent crimes; and (3) specific intent crimes. See W. LaFave & A. Scott, Handbook on Criminal Law § 28 (1972). The inclusion of words denoting a state of mind as an element of the offense (e.g., “willfully” or “intentionally”) serves to distinguish general intent and specific intent crimes from strict liability crimes. But the distinction between general intent and specific intent depends upon how words denoting state of mind are used in a statute. The next three paragraphs in this opinion are intended as guidelines for making that distinction.

A “general intent” statute is one that prohibits either a specific voluntary act or something that is substantially certain to result from the act (e.g., damage to a building is the natural result of the act of setting a building afire). A person’s subjective intent to cause the particular result is irrelevant to general intent crimes because the law ascribes to him a presumption that he intended such a result. “[A] man is to be taken to intend what he does, or that which is the necessary and natural consequence of his own act.” R. Perkins, Perkins on Criminal Law 748 (2d ed. 1969), citing Harrison v. Commonwealth, 79 Va. 374, 377 (1884). Thus, in general intent statutes words such as “willfully” or “intentionally,” without more, indicate only that the person must have intended to do the act and serve to distinguish that conduct from accidental (noneriminal) behavior or strict liability crimes. In Love v. State, 107 Fla. 376, 144 So. 843, 844 (1932), the Florida Supreme Court did not directly refer to “general” or “specific” intent, but in defining the type of intent requisite for statutory arson appeared to construe arson as a general intent crime: “A ‘willful’ setting fire to or burning would be such an act consciously and intentionally, as distinguished from accidentally or negligently done....” In 1979 the legislature omitted the word “maliciously” from the first degree arson statute.

In Myers v. State, Ind.App., 422 N.E. 2d 745, 750, 751 (1981), the Indiana appellate court said that:

General criminal intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of a subjective desire to have accomplished such result,

and that the term “intentionally damages ... a dwelling ... requires no more than proof of general criminal intent” which is “the requisite intent necessary ... to distinguish the act ... from an accidental or negligent act having the same result.” As the Washington appellate court said in State v. Nelson, 17 Wash.App. 66, 561 P.2d 1093, 1096 (1977), “[a] willful act is one done intentionally, not accidentally.”

Specific intent statutes, on the other hand, prohibit an act when accompanied by some intent other than the intent to do the act itself or the intent (or presumed intent) to cause the natural and necessary consequences of the act. See State v. Gullett, 606 S.W.2d 796, 804 (Mo.Ct.App.1980). For example, section 817.233, Florida Statutes (1981), defines a specific intent crime when it refers to “any person who willfully and with intent to injure or defraud the insuror sets fire to ... any building.” (emphasis added) See also Myers v. State, 422 N.E.2d at 750, where the Indiana appellate court drew the same distinction under similar Indiana arson statutes as we do under sections 806.01(1) and 817.233. Accordingly, a crime encompassing a requirement of a subjective intent to accomplish a statutorily prohibited result may be a specific intent crime. The existence of a subjective intent to accomplish a particular prohibited result, as an element of a “specific intent” crime, is perhaps most clearly evident in the crime of first degree, premeditated murder. See, e.g., Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983). Other examples are burglary, which requires the intent to commit an offense in a structure or conveyance in addition to the intentional act of entering, section 810.02, Florida Statutes (1981), and kidnapping, which requires the subjective intent, inter alia, to hold for ransom in addition to the intentional act of confining, abducting or imprisoning, section 787.01, Florida Statutes (1981). Thus, to be a “specific intent” crime, a criminal statute which contains words of mental condition like “willfully” or “intentionally” should include language encompassing a subjective intent, for example, intent to cause a result in addition to that which is substantially certain to result from a statutorily prohibited act.

Accordingly, section 806.01(1) of the Florida arson statute, which says that a person who “willfully ... by fire ... damages ... any dwelling” is guilty of arson, defines a general intent crime. Damage to a dwelling is the natural consequence of setting a dwelling afire, and there is no additional wording of the statute which requires a subjective intent to cause the damage. See Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981), which construed “willfully” to mean general intent under the trespass statute, section 801.08(1), Florida Statutes (1979).

Admittedly, our foregoing conclusion that arson under section 806.01(1) is a general intent crime cannot be drawn readily and easily from the bare wording of section 806.01. Candor compels the conclusion that whatever particular tests or distinctions are devised relative to “specific” and “general” intent, a perception of which type of intent the legislature meant in a particular statute is by no means always easy. Especially in states like Florida where the voluntary intoxication defense is not statutory, it is the province of the judiciary to establish guidelines or criteria, as we have endeavored to do here, for perceiving the type of intent meant by the legislature to be an element of a crime.

The difficulty of the distinction between these types of intent under various types of statutory wording points up that the “general” versus “specific” intent test itself is vulnerable to criticism. Applications of that test often do not produce consistent results in the case law. However, our foregoing conclusion that arson is a general intent crime is consistent not only with the apparent rationale of Love v. State, supra, and the language of Rozier v. State, supra, but also with holdings under similar arson statutes in other states which contain the word “willfully” as an element of the crime. See State v. Nelson, supra; Myers v. State, supra; State v. Edmon, 28 Wash.App. 98, 621 P.2d 1310 (1981); State v. O’Farrell, 355 A.2d 396 (Me.1976). See also State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238, 244 (1975) (arson is not a specific intent crime at common law). But see People v. Pearson, 74 Ill.App.2d 400, 220 N.E.2d 876, 878 (1966).

The distinction we draw under the foregoing guidelines might be emphasized by the following observations. The Washington appellate court in Edmon, supra, felt that specific intent is intent in addition to simply the intent to do a particular physical act. 621 P.2d at 1314. The Indiana appellate court in Myers said that “it is difficult to find courts or commentators today who will recognize as a specific intent crime any definition of the offense not containing the specific words ‘with intent to’ effect a certain result.” 422 N.E.2d at 750. See also 5 Am.Jur.2d Arson § 10 (1962). For discussions which we consider to be consistent with our holding and the foregoing guidelines but which are also indicative of the recondite nature of the subject, see W. LaFave & A. Scott, supra, at § 28, and R. Perkins, supra, at 744-51, 762-74.

Our holding that voluntary intoxication is not a defense to arson represents what appears to us to be sound policy. Support for policy of this nature can be drawn from State v. Stasio, 78 N.J. 467, 396 A.2d 1129 (1979), which represents a thoughtful, extensive consideration of voluntary intoxication as a defense to numerous crimes. A number of the following bases for our holding as representing sound policy are indicated in Stasio:

(1)Intoxication, short of such a state as to render a person unconscious or incapacitated, can be said to have not destroyed a person’s ability to form an intent, whether it be called general or specific intent. Although a person’s mental abilities may be impaired and his inhibitions reduced, his brain still functions to stimulate actions by his body. At the least, there would be justification to find under those circumstances (intoxication short of unconsciousness or incapacitation) a probability that the person meant to do what he did and that, therefore, he should not be relieved or excused of the consequences thereof. The New Jersey Supreme Court in Stasio quoted Murphy, Has Pennsylvania Found A Satisfactory Intoxication Defense?, 81 Dick.L.Rev. 199, 208 (1977), as saying:

The great majority of moderately to grossly drunk or drugged persons who commit putatively criminal acts are probably aware of what they are doing and the likely consequences. In the case of those who are drunk, alcohol may have diminished their perceptions, released their inhibitions and clouded their reasoning and judgment, but they still have sufficient capacity for the conscious mental processes required by the ordinary definitions of all or most specific mens rea crimes.

396 A.2d at 1134. See also J. Hall, Intoxication and Criminal Responsibility, 57 Harv.L.Rev. 1045, 1053 (1977), saying that:

Rather obviously, harms committed by inebriates reveal not wild, disorganized, aimless, motor activity but conduct well adapted to attain specific goals.

(2) The issue here involves voluntary intoxication, and there is no basis in abstract fairness to not hold a person accountable for the results of what he voluntarily undertakes. To borrow from tort terminology, we are saying, in a general sense, that a person’s own voluntary intoxication should not be considered a legal, supervening cause which shields him from the consequences of his conduct. As the Supreme Court of Mississippi said in an armed robbery case which placed Mississippi among at least six states which do not recognize voluntary intoxication as a defense to either specific or general intent crimes,

if a person casts off the restraints of reason and consciousness by a voluntary act, no wrong is done to him if he is held accountable for any crime which he may commit in that condition. Society is entitled to this protection.

McDaniel v. State, 356 So.2d 1151, 1159 n. 1, 1160-61 (Miss.1978).

(3) By restricting the applicability of voluntary intoxication as a criminal defense, “the opportunities of false claims by defendants may be minimized and misapplication by jurors of the effect of drinking on the defendant’s responsibility eliminated.” Stasio, 396 A.2d at 1134.

(4) Of primary importance, a purpose of criminal law is to protect society from behavior that endangers the public safety. See section 775.012, Fla.Stat. (1981); Stasio, 396 A.2d at 1134. That purpose, and the deterrent objectives of criminal law, may be subverted by relieving a person from the consequences of his own conduct.

(5) In cases where the defense of voluntary intoxication is not allowed, the trial court nonetheless may consider such intoxication, in proper circumstances, as a mitigating factor at sentencing. There should be no reason why compulsive intoxication (dipsomania) cannot receive adequate, if not superior, consideration by a trial judge who has the aid of background investigation into the life of a convicted defendant, as compared with the consideration a jury may be able to give in assessing guilt. Similar informed consideration may also be given by a trial judge to the other extreme: a totally inexperienced inebriate.

In Stasio the New Jersey Supreme Court joined commentators and courts who have given in-depth study to the subject and severely criticized the distinction between “general” and “specific” intent crimes as a criterion for whether or not the voluntary intoxication defense should apply. Quoting from J. Hall, General Principles of Criminal Law 142 (2d ed. 1960), the New Jersey Supreme Court said,

[t]he current confusion resulting from diverse uses of “general intent” is aggravated by dubious efforts to differentiate that from “specific intent”.

396 A.2d at 1132. See also J. Hall, Intoxication and Criminal Responsibility, supra at 1064 which observed that “neither common experience nor psychology knows any such actual phenomenon as ‘general intent’ that is distinguishable from ‘specific intent’.” Stasio expressed the view that the specific versus general intent distinction is, at best, elusive and superfluous and, at worst, a possible vehicle for inconsistent and unjust results. Stasio alluded to a number of additional reasons for severely restricting the voluntary intoxication defense, a defense which did not exist under the English common law.

Yet, with seeming paradoxicalness, the Stasio court in dicta said that under the New Jersey arson statute, arson is a crime to which voluntary intoxication is a defense. However, that Stasio dicta is distinguishable from the instant case because the New Jersey arson statute, N.J.Stat. Ann., section 2C:17-1, in contrast to section 806.01, Florida Statutes (1981), provides that the crime of arson must be “purposely” done. Also, the New Jersey Supreme Court was applying, with apparent reluctance, a statutory voluntary intoxication defense under which “purposely” could be negatived by evidence of voluntary intoxication and which was to be under critical review by the New Jersey legislature. 396 A.2d at 1135-36. The significance (however indistinct) of the word “purposely” in this context is indicated in State v. O’Farrell, supra. In O’Farrell, 355 A.2d at 398, the Supreme Judicial Court of Maine refused to find that the term “willful” in the Maine arson statute made arson a specific intent crime because the statute did not require that the actual, subjective “purpose” of defendant be to damage a structure (or, for that matter, to produce the result of having a structure afire or burning, as contrasted, presumably, with the act of only placing a flame to a structure).

Although these semantic distinctions are so close as to be obscure, the Supreme Judicial Court of Maine and the Supreme Court of New Jersey felt that such terms were determinative: the presence of the word “purposely” in the statute was enough to convince the New Jersey court that the voluntary intoxication defense was applicable; the absence of such terminology served to convince the Maine court that the defense was not applicable. In any event, we would choose to reconcile that Stasio dicta with our holding here by adopting the rationale that the word “purposely” in the New Jersey Statute was construed to have a meaning consistent with our foregoing description of statutory wording which denotes a “specific intent” crime.

Our holding follows the much criticized “specific” versus “general” intent test because we are constrained by stare decisis to do so. But not inconsistent with the policy reasoning of Stasio, we add the following caveats. Under the following circumstances (which were not shown to exist in the case before us) voluntary intoxication may be a defense to a general intent crime: (a) when intoxication places an accused in an unconscious or wholly incapacitated state and his defense is that he did not physically accomplish the act of which he is accused; (b) when intoxication results from medication which produces unexpected or bizarre results; and (c) when the result of intoxication is a fixed state of insanity, either permanent or intermittent, after the influence of the intoxicant has spent itself. See Stasio, supra, 396 A.2d at 1132. See also Cirack, supra at 709, and State v. McNally, 336 So.2d 713, 715 (Fla. 2d DCA 1976), as to the defense of insanity induced by intoxication.

To the extent that Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979), may appear to be inconsistent with our present holding, we recede from Russell. Russell found that the inclusion of the word “intentionally” in section 784.03, Florida Statutes (1977), made battery a specific intent crime to which voluntary intoxication was a defense. See also Harris v. State, 418 So.2d 416 (Fla. 1st DCA 1982) (absence of word “intentionally” in statute means lewd assault is a general intent crime, citing Russell). Upon reflection against the background of the foregoing considerations, including the language of Love v. State, supra, we find no realistic distinction, for the purpose of determining “general” and “specific” intent requirements, between the words “willfully” and “intentionally” in the context of those words as used in the battery and arson statutes. In fact, in reasoning why “willfully” in the Washington arson statute only meant that arson was a general intent crime, the Washington Court of Appeals in Nelson, 561 P.2d at 1096, said that “willful” means “that a fire must be set intentionally or by design, rather than accidentally or negligently.”

The confusion which purely semantic distinctions can bring about in this area is further illustrated by the reliance of Rozier, supra, which found “willful” to mean general intent, upon State v. Buffett, 397 So.2d 1060 (Fla. 2d DCA 1981), which found the word “knowingly” unnecessary in an information alleging violation of the grand theft statute, section 812.014(2)(b), Florida Statutes (1979). We do not consider Buf-fett as being at odds with a conclusion under our foregoing guidelines that the grand theft statute describes a “specific intent” crime.

Also sharply indicative of the difficulties which can be generated by reliance, for the distinction between “general” and “specific” intent crimes, solely upon pure semantics, or dictionary definitions of single words, are two successive paragraphs in Words and Phrases, vol. 22, p. 36 (Perm, ed. 1958), immediately under the subheading of “Willfully or Voluntarily” which is under the general heading of “Intentionally.” In the first paragraph the California appellate court in Lowen v. Finnila, 93 P.2d 257, 260 (Cal.App.1939) (rev. on other grounds) 15 Cal.2d 502, 102 P.2d 520 (1940), is cited for the proposition that the term “willfully” is not synonymous with the term “intentionally.” In the next paragraph the Missouri appellate court in Bindbeutal v. Street Railway Co., 43 Mo.App. 463, 470 (1891), is cited for the proposition that those terms are synonymous. Perhaps epitomizing the potential obscurities if an effort is made to distinguish “specific” from “general” intent on the basis of one word in a criminal statute and the obfuscation which often exists in discussions of the subject is A.F. Curtis, The Law of Arson, § 58 (1936). That treatise refers to “criminal intent” as an element of arson and says, without attempting to distinguish “general” from “specific” intent, that the intent requisite to the crime of arson may be, interchangeably, “intentionally,” “willfully,” “knowingly,” or “purposely,” but says further, in section 60, that the “willful” setting of a fire is to be distinguished from negligence. A reasonable conclusion to be drawn from perusal of the general law relative to whether particular words in various arson statutes denote “general” or “specific” intent is that the law has been at best unsettled and inconsistent.

But, regardless of the ambiguous background of the general law as described above, we construe statutes which are phrased like section 806.01(1) and contain the words “willfully” or “intentionally” to describe general intent crimes. On the other hand, specific intent crimes are described with the additional or different types of wording which we have described above as denoting specific intent. Hopefully, the foregoing guidelines, and the foregoing discussion as to what might be viewed as the “general versus specific intent conundrum,” will contribute more clarity and a degree of better predictability to Florida law, consistent with sound policy. At the least, by endeavoring to squarely face up to the difficulty and to provide relatively specific answers, we hope to have contributed to putting the problem into clearer focus, which is often the first step toward a problem’s complete solution.

We recognize, as did the New Jersey Supreme Court in Stasio, that among the various criminal statutes, the particular mens rea, i.e., the types of particular criminal intent involved, may vary from crime to crime. In a sense, “there must be as many mentes reae as there are crimes.” Stasio, 396 A.2d at 1133, quoting J. Hall, General Principles of Criminal Law, 142 (2d ed. 1960). Therefore, being cognizant of the difficulty of applying the foregoing guidelines to all criminal statutes, we believe a sound approach would be, for the purpose of determining the availability of the voluntary intoxication defense in cases of doubt as to whether other somewhat differently worded criminal statutes encompass “general intent” or “specific intent” crimes, to strictly construe statutes against a conclusion that they require “specific intent” as that term is defined in this opinion. Since the English common law did not recognize voluntary intoxication as a criminal defense, the foregoing approach to statutory construction would be consistent with the general principle that statutes in derogation of the common law are to be strictly construed.

By referring to the “English common law,” which, of course, has been the foundation of the common law in this country, we are not merely referring to English law of the 1700’s. Not only has voluntary intoxication continued in some respects to be no defense to even “specific intent” crimes in England, a proposal that “there should be a new offense of dangerous voluntary intoxication (an offense of strict liability)” received a degree of approval from three law lords of the House of Lords recently. G. Williams, Intoxication and Specific Intent, 126 New L.J. 658, July 1, 1976. However, apparently current English law pays at least some lip service to the “specific” versus “general” intent test, which also in that country is an “obscurity.” Id. at 660.

The common law “apparently made no concession whatever because of intoxication, however, gross_” J. Hall, Intoxication and Criminal Responsibility, supra at 1046. It appears that voluntary intoxication as a defense to “specific intent” crimes was initially adopted in this country to provide an “avenue to ... mitigation of punishment of grossly inebriated homicides.” Id. at 1049. However, the “specific” versus “general” intent test, which is so inherently difficult to apply with consistency, is a clumsy vehicle by which to provide mitigation which can be afforded at sentencing when appropriate.

The shift in the United States away from the common law and towards leniency for inebriates was a “radical modification in the law ... in the nineteenth century.” Id. at 1048. “As a more lenient attitude toward crime and punishment emerged and less emphasis was placed upon individual responsibility, the availability of voluntary intoxication as a defense was expanded by decision and by statute.” State v. Gullett, 606 S.W.2d at 800. The statutory voluntary intoxication defenses adopted as part of the Model Penal Code in Pennsylvania and Arkansas recently were repealed, indicating a return toward the common law in those states. Stasio, 396 A.2d at 1135. Virginia’s view of voluntary intoxication as a potential defense has remained common law oriented. A. Murphy, Has Pennsylvania Found a Satisfactory Intoxication Defense? 81 Dick.L.Rev. 199, 206 (1977). But the voluntary intoxication defense currently remains in place in the majority of jurisdictions, 22 C.J.S. Criminal Law §§ 66-68 (1961), despite resistance. J. Hall, Intoxication and Criminal Responsibility, supra at 1050.

The “specific” versus “general” intent test had its beginning in Florida jurisprudence many years ago. It has been recited numerous times. See, e.g., Simpson v. State, 81 Fla. 292, 87 So. 920 (1921); Allen v. State, 124 So.2d 741 (Fla. 1st DCA 1960); Ricard v. State, 181 So.2d 677 (Fla. 3d DCA 1966). Although its existence is consistent with the law of most states, see also 21 Am.Jur.2d Criminal Law §§ 129, 130 (1981), its applications, as indicated above, are anything but consistent. We are not aware of any modern case in which the Florida Supreme Court has examined the test in light of the types of factors referred to herein, in Stasio, and in other authorities which we have cited.

The increases in societal problems caused by both alcohol and drugs are well known. Concurrent with those increases have been additional commentary and study on inebriation as a criminal defense. See, e.g., J. Hall, Intoxication and Criminal Responsibility, supra; A. Murphy, supra; W. Roth, General vs. Specific Intent: A Time for Terminological Understanding in California, 7 Pepp L.Rev. 67 (1979); A. Gold, An Untrimmed "Beard”: The Law of Intoxication as a Defense to a Criminal Charge, 19 Crim.L.Q. 34 (1976).

Perhaps in a proper case the Supreme Court of Florida may choose to clarify the situation by eliminating or modifying the test. The voluntary intoxication defense is not statutory in Florida, and we think there would be sound reasons for discarding the “general” versus “specific” intent test as a criterion relative to that defense, for basing a restriction on the voluntary intoxication defense upon the foregoing policy considerations, and for adopting the view that voluntary intoxication is not a defense to any crimes other than first degree premeditated murder except under the circumstances described in (a) through (c) above. Proposals of this nature are within the province, and a responsibility, of district courts of appeal. See Overton, District Courts of Appeal: Courts of Final Jurisdiction With Two New Responsibilities— An Expanded Power to Certify Questions and Authority to Sit En Banc, 33 U.Fla.L. Rev. 80, 84 (1983).

Voluntary Intoxication Is Not A Defense To First Degree (Felony) Murder.

Since a death occurred from the arson in this case, defendant was adjudicated guilty of a felony-murder. As we have said, although voluntary intoxication is a defense to first degree premeditated murder, voluntary intoxication is not a defense to arson. Defendant’s specific argument is that voluntary intoxication should be a defense to arson, but we consider implicit within that argument the further argument that intoxication should be a defense to felony-murder.

When death occurs as a result of a felony, a question may remain as to whether a voluntarily intoxicated defendant should thereby be guilty of felony-murder. The argument could be: (1) in a felony-murder the intent to commit the felony is artificially substituted for the premeditation that is otherwise necessary for first degree murder; but (2) since the intent necessary for first degree premeditated murder is unquestionably “specific intent” to which voluntary intoxication is a defense, the intent to commit a felony which leads to the felony-murder doctrine should likewise be specific intent when the evidence shows voluntary intoxication. According to this argument, in eases involving voluntary intoxication there would not properly be a substitution of the intent to commit the felony for the premeditation otherwise requisite to first degree murder unless the felony-intent is deemed “specific intent.”

We have considered this potential argument and note that dicta in Stasio, 396 A.2d at 1132, provides support based upon what the New Jersey Supreme Court refers to as “considerations of fairness.” However, the felony-murder doctrine was not before the New Jersey Supreme Court in Stasio, and, on balance, we feel that the felony-murder doctrine should apply in the instant case without the defense of voluntary intoxication.

The foregoing argument is grounded upon asserted considerations of fairness to an accused. But, the felony-murder doctrine in this state is grounded upon the policy of deterrence of crime. The purpose of the doctrine, codified in section 782.-04(l)(a), Florida Statutes (1981), is “to prevent the death of innocent persons likely to occur during the commission of certain inherently dangerous and particularly grievous felonies.” State v. Williams, 254 So.2d 548, 550 (Fla. 2d DCA 1971). That statute effectively substitutes the “mere intent to commit those felonies for the premeditated design to effect death which would otherwise be required in first degree murder_” Id. at 551. We are not authorized to substitute a different intent, i.e., an intent like premeditation, for the intent to commit the felony, as we would be required to do if we were to adopt the foregoing argument. If defendant perpetrated the felony, he is responsible for the murder; voluntary intoxication is not a defense to the murder if it is not a defense to the felony. State v. Edwards, 224 Kan. 266, 579 P.2d 1209, 1213 (1978); State v. Rueckert, 221 Kan. 727, 561 P.2d 850, 856 (1977).

This conclusion is consistent with the policy reasons referred to above which underlie our holding that voluntary intoxication is no defense to arson. See also Jacobs v. State, 396 So.2d 1113 (Fla.1981), a premeditated murder case involving “cumulative” felony murder evidence relative to a specific intent crime. In Jacobs the Florida Supreme Court, while agreeing with the trial court that defendant had not been intoxicated, noted that voluntary intoxication may in a proper case be a defense to the underlying felony; the court did not say that intoxication is a defense to felony-murder. A fair inference may be drawn from Jacobs that its foregoing dicta is at least consistent with our conclusion that voluntary intoxication is not a defense to any felony-murder, as such.

Any implications of harshness in applying the foregoing principles to the instant case may be lessened by the evidence that defendant was heard to say, on the evening of the crime, something about meaning to burn the building down. The building was an apartment building occupied by innocent people. In his confession defendant remembered igniting the curtains of his girl friend’s apartment.

A Jury Instruction On Second Degree (Depraved Mind) Murder Is Necessary, If Supported By The Evidence, When Defendant Is Charged With First Degree (Felony) Murder.

Defendant’s other contention on appeal is that the failure of the trial court to instruct the jury on second degree (depraved mind) murder was error. We agree.

Under the evidence concerning the nature of the actions of the defendant in setting the building afire, the jury, if so instructed, could have found defendant guilty of second degree, depraved mind murder under section 782.04(2), Florida Statutes (1981), which provides:

The unlawful killing of a human being, when perpetrated by. an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.-083, or s. 775.084.

That is, the jury, if so instructed, could conceivably have exercised what the Florida Supreme Court referred to in State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), as “its inherent pardon power.” That so-called pardon power is a well recognized misnomer which generally means that a jury may, in a proper case, convict a defendant of a lesser offense when the jury finds that the acts of the defendant fit the statutory definitions of more than one offense.

Florida Rule of Criminal Procedure 3.490 provides circumstances under which that “pardon power” may be exercised. The rule states:

If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.

Of course, since a jury finding of guilty could only result from an instruction by the trial court as to an offense of which the defendant could be found guilty, the rule contemplates that the jury will be instructed by the trial court as to offenses referred to, and under the circumstances stated, in the rule. Those circumstances exist in this case. Second degree depraved mind murder is a lesser degree of felony murder under section 782.04, Florida Statutes (1981), and, as we have stated above, could be supported by the evidence in this case. Defendant was not indicted for second degree depraved mind murder, but rule 3.490 does not require that a defendant be charged with a lesser degree offense in order for the rule to apply.

Our construction of rule 3.490 follows from not only the plain wording of the rule but also from the supreme court’s explanation of it. In Order and Opinion of Supreme Court of Florida Adopting Florida Standard Jury Instructions in Criminal Cases, Nos. 57,734 and 58,799 (Fla., April 16, 1981) (reprinted on pp. v-xiv of Florida Standard Jury Instructions (1981 ed.)), the court approved certain amendments to the Florida Rules of Criminal Procedure, including the current version of rule 3.490 which was in effect at the time of defendant’s trial. The court referred to the former requirement, under Brown v. State, 206 So.2d 377 (Fla.1968), that a jury be instructed on all lesser degrees of an offense and pointed out that rule 3.490 was being amended to require that the jury be so instructed only when there is evidence to support a finding of guilt of such lesser degrees. Id. at ix.

Accordingly, we must conclude that the jury in the case before us should have received an instruction permitting it to find defendant guilty of second degree depraved mind murder. Defendant is entitled to a new trial.

Upon retrial no voluntary intoxication instruction need be given relative to second degree (depraved mind) murder because that is a general intent crime within our foregoing guidelines. “[IJntoxication does not excuse or mitigate any degree of unlawful homicide except murder in the first degree.” State v. Kelly, 68 So.2d 351, 352 (Fla.1953).

We recognize that the table (also referred to as “schedule”) of lesser included offenses which is appended to the current Florida' Standard Jury Instructions in Criminal Cases does not list second degree depraved mind murder as a lesser included offense under first degree (felony) murder. We also recognize that in its foregoing opinion approving the standard jury instructions, the supreme court said, “After its effective date of July 1, 1981 [modified to October 1, 1981], this schedule will be an authoritative compilation upon which a trial judge should be able to confidently rely.” Id. at ix. However, later in its opinion the supreme court also said, “[N]o approval of these instructions by the Court could relieve the trial judge of his responsibility under the law to charge the jury properly and correctly in each case as it comes before him.” Id. at x.

The table is inconsistent with rule 3.490 and with the supreme court’s foregoing interpretation of the rule. We can well understand the trial court’s reliance on the table and, in fact, cannot say that if we had been in the trial judge’s place, we would not have followed the table as he did. However, we cannot find that the table supersedes Rule of Criminal Procedure 3.490.

The subject of lesser included offenses under first degree (felony) murder is a difficult one with inherent, latent complexities far more extensive than the aspects which we have referred to above. We believe this is a case of first impression concerning the relationship between the foregoing portion of the table and rule 3.490. In the above-referenced opinion the supreme court asked for comments from the bench, bar, and other interested parties. It is our understanding that the subject is and has been under consideration by the committee appointed by the supreme court to recommend changes to the standard jury instructions. We assume that appropriate changes will be recommended to remedy what has appeared in this case to be a disparity between the foregoing table and rule.

The cause is reversed and remanded for a new trial on the first degree (felony) murder charge. The arson conviction shall be reinstated and shall stand. If upon retrial defendant is acquitted of first degree (felony) murder, defendant shall be sentenced on the arson conviction. If on retrial defendant is again convicted of first degree (felony) murder, he shall be sentenced on that conviction and the conviction for arson shall be vacated. This result is required by Bell v. State, 437 So.2d 1057 (Fla.1983).

We certify to the Florida Supreme Court the following questions as being of great public importance:

1.Whether voluntary intoxication is a defense to arson or to any crime.
2. Whether voluntary intoxication is a defense to first degree (felony) murder.
3. Whether a jury instruction on second degree (depraved mind) murder is necessary, if supported by the evidence, when defendant is charged with first degree (felony) murder.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR A NEW TRIAL.

OTT, C.J., and HOBSON, BOARDMAN, SCHEB, RYDER, DANAHY and CAMPBELL, JJ., concur.

SCHOONOVER, J., concurs with result only.

GRIMES, J., concurs with opinion.

GRIMES, Justice,

concurring.

As a member of the Supreme Court committee which recommended the 1981 revision of the Florida Standard Jury Instructions in Criminal Cases and chairman of the subcommittee which prepared the schedule of lesser included offenses, I concede that the schedule is inconsistent with Florida Rule of Criminal Procedure 3.490 as it relates to the lesser included offenses of first degree (felony) murder. This occurred because the schedule was originally adopted on the premise that degrees of an offense would be treated in the same manner as lesser included offenses. Thus, our committee contemplated that Florida Rule of Criminal Procedure 3.490 would be amended to provide that if the indictment or information charges an offense divided into degrees, the jury could find the defendant guilty of any lesser degree of the offense which as & matter of law is a necessarily included offense or any lesser degree of the offense charged in the indictment or information and supported by the evidence. This is reflected in the Comment on Schedule of Lesser Included Offenses (page 257) and in the Order and Opinion of Supreme Court of Florida Adopting Florida Standard Jury Instructions in Criminal Cases, Nos. 57,734 and 58,799 (April 16, 1981) (page viii), both of which are reprinted in Florida Standard Jury Instructions in Criminal Cases. However, the new rule did not go as far as the committee originally intended. The amended Florida Rule of Criminal Procedure 3.490 as ultimately recommended and approved by the supreme court in 1981 only required that the lesser degree of offense be supported by the evidence and omitted any reference to it either being necessarily included or being charged in the indictment or information. Unfortunately, the table was not changed to coincide with the rule as adopted. Hence, this particular aspect of the schedule is inconsistent with the rule, and one or the other should be changed.

      . See Gentry v. State, 422 So.2d 1072, 1073 (Fla. 2d DCA 1982), aff’d 437 So.2d 1097 (Fla.1983), holding that crimes which include "attempt” as an element are not necessarily specific intent crimes to which voluntary intoxication is a defense, but citing contrary authority.

      . We do not close our minds to arguments on behalf of those whose criminal conduct involves alcoholically-reduced inhibitions. As to the view that voluntary intoxication should be a defense to both general and specific intent crimes, see State v. Gullett, 606 S.W.2d at 800, citing J. Hall, General Principles of Criminal Law 556 (2d ed. 1962).

      . Further clouding an already cloudy subject is the recognition that "cases presenting instances of involuntary intoxication are ‘simply and completely nonexistent.’ ” State v. McNally, 336 So.2d at 715.

      . Apparently the case creating the principle in Florida that voluntary intoxication is a defense to specific intent crimes was Garner v. State, 28 Fla. 113, 9 So. 835 (1891).

      . State v. Perez, 382 So.2d 731 (Fla. 2d DCA 1980), in accordance with Mikenas v. State, 367 So.2d 606 (Fla.1978), holds that the scope of the felony-murder doctrine is not limited to innocent persons but extends also to "any person.”


source: Caselaw Access Project

author: DAUKSCH, Judge. SHARP, Judge,

license: Public Domain

text:
    David G. WALTER, Appellant, v. Marilyn WALTER, Appellee.
    No. 82-666.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1983.

      Jeff B. Clark, of Clark & Hardy, P.A., Orlando, for appellant.
    Michael R. Walsh, Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order modifying a final judgment in a marriage dissolution case. We find no error in the award of the right of exclusive occupancy of the house and the required mortgage and other maintenance expenses concerning the house. Even though this house is the separate property of the appellant it was proper for the court to make the awards as “incidents to child support.”

Permanent alimony was awarded to appellee and that was error because the evidence clearly reveals that appellee has earned a substantial income in the past and is not incapable of earning her own income now. In 1981, the last calendar year before the dissolution, appellee earned over $15,000; she has worked as a waitress, a restaurant manager and a telex operator. The original dissolution judgment was entered in 1972 and because appellant was unable to pay alimony at that time the court reserved jurisdiction to make a determination later. The fact that appellee was apparently able to support herself and contribute to the support of the children for those ten years is an indication she can continue to do so. Permanent alimony should be awarded where the evidence indicates the recipient must have help from the former spouse in order to maintain herself. If the former wife has the capacity to make her own way unassisted by her former husband, then courts cannot require the husband to pay alimony other than for rehabilitative purposes. Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983); Crees v. Crees, 342 So.2d 1014 (Fla. 4th DCA 1977); Roberts v. Roberts, 283 So.2d 396 (Fla. 1st DCA 1973). Permanent alimony should not be treated as a reward for having been a devoted and dutiful spouse.

It seems there has been a drifting away from strict definition and proper application of some legal terms in domestic relations law. In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) our supreme court found it advisable to again define the difference between special equity and doing equity as those terms are used in domestic relations law. Perhaps it would be helpful for this court to say that an award of permanent alimony is proper where the evidence shows the lack of actual or potential capacity for self-support. The litigant requesting permanent alimony has the burden of proof on that issue and must also establish the opponent’s ability to continue to provide that support. Unless that proof is evident, the trial court errs in granting permanent alimony. Of course, once permanent alimony is granted and it later comes to pass that there is a material change in circumstances, either in need for assistance or ability to pay, then the court must make an appropriate adjustment.

Should the proof be inadequate to support an award of permanent alimony then the court should consider rehabilitative alimony. Rehabilitative alimony is meant to provide assistance, limited in duration and amount, to enable the recipient to acquire or reacquire skills or education or training necessary for self-support. The benefits of rehabilitative alimony over permanent alimony are manifold. It is a financial crutch or leg-up and as an added benefit acts as a psychological aid by giving incentive for personal achievement. It can also help release the bonds of dependence and help in the acquiring of a feeling of greater self-worth. Permanent alimony while operating as a financial aid could have the opposite effect psychologically.

Permanent alimony, being a fixed and comparatively unadjustable form of alimony should be the last resort rather than the first. First the court should consider rehabilitative alimony. If rehabilitative alimony is awarded each party has an equal opportunity to have future adjustments. If the recipient confirms the trial judge’s determination of an ability to become self-supporting then the alimony automatically ceases and everyone benefits and no further litigation is needed. However, if the recipient proves unable to become self-supporting then the rehabilitative alimony can be extended, or increased, or both; or converted to permanent alimony. When permanent alimony is the initial award then it is much more burdensome on the parties to make a change later, in terms of the burden of proof and amount of proof. Once instituted, permanent alimony is subject to modification upon showing a substantial change of circumstances. Canakaris, 1202.

Here the parties are the same age (he was 42, she 41 at the hearing), both in good health and both have the experience and ability to earn a living. No one knows how much and for how long appellee will need support from appellant but she should be given the incentive and the financial assistance to improve herself and become able to earn a substantial living. She has expressed a desire to do so; she wants to go to college.

The children are split between the parties and both parties apparently contribute in raising all the children. Neither party has substantial net worth and both have a spotted history of employment— sometimes working and sometimes not. Under all the circumstances it is apparent rehabilitative alimony should be awarded; then should appellee be unable to fully adjust after putting forth her best efforts then the court can consider raising the amounts or extending the term or even converting rehabilitative alimony to permanent alimony. On the other hand should appellee fulfill the expectations then the alimony automatically ceases and the court need not be involved ever again regarding alimony. As can be readily seen both parties and the court benefit by an initial award of rehabilitative alimony as opposed to permanent alimony. In sum, where alimony is indicated the court should first consider rehabilitative alimony and unless there is no question about the permanency of the inability to self-support then an appropriate period and amount of rehabilitative alimony should first be tried. Campbell v. Campbell, 432 So.2d 666 (1983, Fla. 5th DCA) and cases cited therein.

The judgment as to alimony is reversed and the cause remanded for reconsideration in light of this opinion.

REVERSED and REMANDED.

ORFINGER, C.J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent because the trial court’s judgment falls within the ambit of discretion articulated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We therefore lack jurisdiction to rewrite it. Conner v. Conner, 439 So.2d 887 (Fla.1983).

Although we might not have awarded permanent alimony in this case as an original proposition, the trial court’s award comes to us with a presumption of correctness, and we should affirm it if there is a reasonable basis in the record to sustain it. Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980); Steinau v. Steinau, 343 So.2d 631 (Fla. 4th DCA 1977). I find no precedent to support the majority opinion’s extraordinary inference that an award of permanent alimony comes to this court with a presumption of incorrectness, which the trial court and trial counsel must rebut or suffer reversal.

In this case, the marriage was of relatively short duration (seven years), the ex-wife was forty-one years old at the time of the hearing, and had an established work record. However, her work was exclusively for her husband’s various restaurant businesses. He paid her two hundred dollars ($200.00) per week as his employee when she was working, and he paid her two hundred dollars ($200.00) per week when she stayed home with the three minor children. At the time of the final hearing, she had no job and no realistic prospects of even being able to earn two hundred dollars ($200.00) per month working as an employee for a disinterested employer. The trial court found that her vocational skills were such that she would probably not be completely self-supporting in the foreseeable future. Hurtado v. Hurtado, 407 So.2d 627 (Fla. 4th DCA 1981). In addition, she had custody of two of the parties’ minor children, who would not become eighteen for six more years.

Even with the three hundred fifty dollars ($350.00) per month award of alimony in this ease, the ex-wife will be required to work to support herself and her children at the level they had been living. Alimony which supplements the income of a working ex-wife has been approved in numerous cases. See, e.g., Greer v. Greer, 438 So.2d 535 (Fla. 2d DCA 1982); Landry v. Landry, 436 So.2d 353 (Fla. 1st DCA 1983); O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982); Johnson v. Johnson, 386 So.2d 14 (Fla. 5th DCA 1980); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). “Being self-supporting is not necessarily the same as having employment or income.” Fazli v. Fazli, 434 So.2d 1022 (Fla. 2d DCA 1983).

I would affirm.


author: PER CURIAM.

text:
    Audreylyn THOMPSON, Appellant, v. Wilhelmina SMITH, Appellee.
    No. 83-253.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Rehearing Denied Dec. 22, 1983.
    High, Stack, Lazenby, Bender, Palahach & Lacasa, Coral Gables, and Philip J. Cole, Miami, for appellant.
    Jerold H. Reichler, Miami Beach, and Arthur Brad Stark, Miami, for appellee.

      Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Rigot v. Bucci, 245 So.2d 51 (Fla.1971); Tanner v. Robinson, 411 So.2d 240 (Fla.3d DCA 1982); Pelekis v. Florida Keys Boys Club, Inc., 358 So.2d 849 (Fla.3d DCA 1978).


text:
    Rolando POZO, Appellant, v. Guadalupe PRADA and Efren Lopez Totasaus, Appellees.
    Nos. 83-547, 83-1359.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Rehearings Denied Dec. 22, 1983.
    Patrick L. Goss and Zaedy R. Pozo, Miami, for appellant.
    Kathleen Phillips and Joel V. Lumer, Miami, for appellees.
    Before HENDRY,' BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We reverse the award of prejudgment interest which was incorrectly awarded on unliquidated damages. McCoy v. Rudd, 367 So.2d 1080 (Fla. 1st DCA 1979). Appellant’s other issues are without merit. Spencer v. American Advisory Corp., 338 So.2d 62 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977); Vokes v. Arthur Murray, Inc., 212 So.2d 906 (Fla. 2d DCA 1968); see Bannister v. Hart, 144 So.2d 853 (Fla. 2d DCA 1962); Seiferth v. Seiferth, 121 So.2d 689 (Fla. 3d DCA 1960).

Affirmed in part, reversed in part.


text:
    Kiou JALAYER, Appellant, v. Joan A. PERLMAN, National Car Rental Systems, Inc., a foreign corporation, and Travelers Insurance Company, a foreign corporation, Appellees.
    No. 83-664.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Rehearing Denied Dec. 28, 1983.
    Krathen & Sperry and Martin Sperry, Fort Lauderdale, for appellant.

      Gerald E. Rosser; Richard B. Adams, Jr., Miami, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

The plaintiff Kiou Jalayer appeals a final judgment entered in his favor in a negligence action arising from an automobile accident. The jury found for the plaintiff and awarded damages in the amount of One Hundred Thousand Dollars ($100,000); the jury also found that the plaintiff was seventy percent (70%) comparatively negligent in the case, which finding reduced the damages awarded in the final judgment to Thirty Thousand Dollars ($30,000).

The plaintiff urges on appeal that the trial court committed nine (9) alleged errors below. We have carefully examined these contentions and conclude that no error was committed by the trial court which in any respect affected the outcome of the case to the detriment of the plaintiff; indeed, the plaintiff herein makes no real effort in his brief to claim that these alleged errors might have caused the jury to award less damages or to reach a seventy percent (70%) comparative negligence finding. Moreover, the damages awarded by the jury were not legally inadequate and the finding of seventy percent (70%) comparative negligence was amply justified by the evidence. The plaintiff received a fair trial, although not a perfect one, and we are therefore required under the law to affirm the judgment appealed from. Kaufman v. Rubin, 183 So.2d 284 (Fla. 3d DCA 1966); § 59.041, Fla.Stat. (1981).

Affirmed.


author: BASKIN, Judge.

text:
    Harry B. GRABOW, Appellant, v. Susan GRABOW, Appellee.
    Nos. 83-841, 83-857 and 83-1047.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Rehearing Denied Jan. 6, 1984.
    Cheves & Rapkin, Venice, for appellant.
    Young, Stern & Tannenbaum and Glen Rafkin, North Miami Beach, for appellee.

      Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

In Grabow v. Grabow, 419 So.2d 340 (Fla. 3d DCA 1982), this court held that the support provisions of the settlement agreement were modifiable. Upon remand the trial court entered an order stating in part:

12. That, while it is clear that there has been a substantial and meaningful change in the financial circumstances of both parties since the execution of the Agreement and the entry of the Final Judgment, HARRY’S income and ability to pay having increased dramatically and SUSAN’S needs having also greatly increased, the Agreement is silent in respect to a Modification in the event of change of circumstances. Accordingly, it is presumed that the parties contemplated such contingencies when they provided for additional support geared to HARRY’S increased income. Thus, SUSAN’S Motion for Modification must be denied.

The wife appeals; we reverse.

The settlement agreement clearly states:

This agreement may be modified by mutual consent in writing by both the husband and wife or by any proper Court due to a change in circumstances of either party.

By agreement of the parties the court could, upon finding a change of circumstances, modify the agreement. Having found “a substantial and meaningful change in the financial circumstances of both parties,” the trial judge was required to grant modification.

The wife concedes that the trial court’s award of attorney’s fees to the wife was excessive. Upon remand the trial court is directed to reassess the award based upon the criteria contained in section 61.16, Florida Statutes (1981).

Reversed and remanded for further proceedings consistent with this opinion.


text:
    SONESTA, N.V., Appellant, v. Raul LEON and Lilia Leon, his wife, Appellees.
    No. 83-1116.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Rehearing Denied Dec. 22, 1983.
    Robert H. Wiggins, Miami Shores, for appellant.
    Robey & Pelstring and Steven M. Robey, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Watson v. Peskoe, 407 So.2d 954 (Fla. 3d DCA 1981).


author: SHIVERS, Judge.

text:
    Larry BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AP-355.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    Rehearing Denied Dec. 14, 1983.

      Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Brown appeals his convictions and sentences for burglary of a dwelling and grand theft. Appellant argues that a jury instruction given by the trial court amounted to a comment on the weight of the evidence and was, therefore, error. We disagree and affirm.

Brown was accused of burglarizing a mobile home on December 9,1979. Investigator Stoel, a Levy County deputy sheriff, testified that he discussed the burglary with appellant on January 7, 1980. Stoel testified that, after he advised appellant of his rights, appellant confessed that he and Gerald Green were driving around on December 9, 1979, and decided to burglarize the mobile home. Green went in first and appellant followed. They took several items from the trailer. Appellant described to Stoel with particularity where each stolen item had been located in the trailer. Appellant also stated that the stereo speakers found in a green Vega at the time of appellant’s arrest came from the mobile home. Stoel subsequently verified the ownership of the speakers by their serial numbers. On cross-examination, Stoel testified that the speakers were recovered in Gerald Green’s car. Stoel had not tape recorded appellant’s confession, nor did he have appellant write out the confession, although Stoel did take notes during the statement. Stoel further testified that he never talked to Gerald Green about the burglary. Stoel denied that appellant told him that Gerald Green committed the burglary rather than appellant.

The State objected to the questions concerning Gerald Green and moved to strike the testimony about Green. The trial court sustained the objection, granted the motion, and instructed the jury to disregard any questions or responses about whether Gerald Green had been charged with matters relating to this alleged crime. Two other officers testified concerning appellant’s confession and basically corroborated’ Stoel’s testimony.

During closing argument, defense counsel asked rhetorically, “Where is Gerald Green?” The State objected and asked for an instruction. The trial court instructed the jury:

[WJhether or not another individual has been arrested or in custody or tried or not tried has absolutely nothing to do with any issue that you are to consider in this case. I instruct you to disregard any inference or comment that’s made that suggests that the guilt or innocence of this defendant depends upon whether or not anyone else has or has not been charged or arrested.

After the jury retired to deliberate, it returned to request the trial court to repeat the instructions given during the trial about weighing the evidence concerning Gerald Green. The trial court instructed the jury:

The first question asked was for the court to repeat the instructions given during the course of the trial regarding the fact that one person named Green had his name mentioned during these proceedings.
The court instructed you then that the fact that some other person or persons may or may not be also involved or guilty or have been charged or not charged is of no moment or no concern in these proceedings. It has nothing whatsoever to do with the guilt or innocence of this defendant.

Defense counsel objected to the giving of this instruction, arguing that the court had told the jury to disregard Gerald Green. Defense counsel argued that the testimony concerning Green was an evidentiary matter going to appellant’s defense. Appellant was found guilty on both counts, and this appeal followed.

Appellant argues that the trial court’s instruction prevented the jury from considering appellant’s theory of the case. The defense theory was that if the investigators failed to investigate Gerald Green, their testimony about the alleged oral confession was not worthy of belief. We do not think, however, that the instructions of the trial court prevented the jury from considering the officers’ lack of investigation for whatever probative value that fact may have relative to the investigators’ credibility.

AFFIRMED.

MILLS, J., concurs.

ZEHMER, J., dissents, without written opinion.


author: JOANOS, Judge.

text:
    Matthew Alan LAVETTE and Darryl Brent Adams, Appellants, v. STATE of Florida, Appellee.
    Nos. AO-389, AO-412.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    Rehearing Denied Dec. 14, 1983.

      Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant Darryl Brent Adams.
    R. Vinson Barrett of Barrett, Bajoczky & Barrett, Tallahassee, for appellant Matthew Alan Lavette.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

In these consolidated appeals, Lavette and Adams contend the trial court erred in denying the motion for judgment of acquittal as to the conspiracy charge; in refusing to compel a state witness, Doug Boyd, to answer deposition questions concerning his alleged drug use or alternatively to exclude use of his testimony at trial by the state; and in refusing to allow the defense to cross-examine Boyd with respect to his use of proceeds of the theft to buy drugs and his increased use of drugs immediately following the theft. We reverse in part and remand for a new trial.

Appellants were convicted of grand theft of $53,000 from the Barnett Bank and conspiracy to commit grand theft. The conspiracy charge involved an incident entirely separate from the one in which $53,000 was taken in September, 1981. The sole evidence introduced with regard to the conspiracy charge was Boyd’s testimony that in late July or early August, 1981, Lavette approached him and offered to pay him $1000 if he would cover up missing funds in the amount of $90,000. According to Boyd, Lavette said he had set aside that amount of the bank’s money. Boyd refused to cover up the missing funds because he thought the alteration of bank records could be traced. Boyd also testified that the day after Lavette approached him, Adams asked him why he could not do it. This evidence is insufficient to show the existence of a conspiracy between Lavette and Adams to steal $90,000. Both an express or implied agreement and an intention to commit an offense are necessary elements of conspiracy, Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979), cert. denied 383 So.2d 1201 (Fla.1980), and Boyd’s testimony that Adams asked him why he could not do it is not sufficient to show agreement and intent. See Schueren v. State, 370 So.2d 83 (Fla. 1st DCA 1979) overruled in part on other grounds in Parker v. State, 406 So.2d 1089 (Fla.1981). Boyd’s testimony provides circumstantial evidence, which can be used to show agreement and intent; however, the evidence is not such as to exclude a reasonable hypothesis of innocence. The motion for judgment of acquittal as to the conspiracy charge should have been granted.

Boyd also provided the primary evidence against Adams and Lavette as to the grand theft charge. He testified that on September 29, 1981, Adams showed him a cheek for $53,000 and asked him to alter computer records in order to cover up the theft of that amount. This time, Boyd said, he cooperated and received one-third of the amount taken. When the defense took Boyd’s deposition prior to trial, he refused to answer questions about his use of cocaine, marijuana, and other narcotics, asserting his fifth amendment right against self-incrimination. Originally the prosecutor objected to the questions asked of Boyd, then Boyd’s own attorney instructed him not to answer. The defense filed pretrial motions to compel discovery and for disclosure of favorable evidence regarding Boyd’s drug use from July to October, 1981, and his use of the money received from the theft, or alternatively to exclude Boyd’s testimony at trial. Appellants contend that due to the denial of these motions they were unable to prepare effectively to impeach the state’s main witness against them or to lay a foundation for expert testimony regarding the effect of Boyd’s drug use on his credibility. As it turned out, Boyd waived the right at trial and testified to some extent about his drug use, thus appellants argue the state clearly did not intend to prosecute Boyd for drug related offenses and could have granted him immunity in time for a useful deposition to have been taken.

Since we are reversing and remanding for a new trial due to another error, on retrial the same problem will not exist since Boyd has waived his fifth amendment right. However, the trial court did not err in denying the pretrial motions. As noted in State v. Mesa, 395 So.2d 242 (Fla. 3d DCA 1981), the state is not ordinarily obliged, on pain of dismissal, or in this case exclusion of the key witness’s testimony, to produce prosecution or defense witnesses for deposition or trial. The Mesa court referred to discussions of similar problems in United States v. Turkish, 623 F.2d 769 (2d Cir.1980), and Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980), noting that the courts which have approved requiring immunity to be granted witnesses who invoke the fifth amendment have done so in very limited situations. One of the conditions outlined in Smith for requiring a grant of immunity is that the proffered testimony is clearly exculpatory. Even if we were to adopt the Smith requirement of immunity, that condition is not met in the present case. See also State v. Harris, 425 So.2d 118 (Fla. 3d DCA 1983), State v. Reeves, — So.2d — (Fla. 2d DCA 1983) [8 FLW 2457],

Appellants’ third point on appeal is that the trial court improperly limited cross-examination of Boyd, a participant in the theft of September 29, 1981 and the key witness against them. We agree and reverse and remand for a new trial of the grand theft charge. The proffered testimony showed that after the theft, Boyd spent a great deal of money, approximately $4,000 in a relatively brief period of time, on a variety of illegal drugs “because he could afford it”; however, the trial judge limited cross-examination to Boyd’s drug use during conversations with appellants up to the date of the theft, September 29, 1981. The cross-examination which was permitted was useful with regard to impeachment of Boyd’s ability to recall and testify accurately about those conversations, but defense counsel had an additional purpose, which was raised before the trial judge, for wanting to cross-examine Boyd about his drug use and heavy expenditures on drugs after the theft. The defense theory was that Boyd himself, or with someone other than appellants, committed the offense without any inducement or persuasion by Adams and Lavette. Under this theory, the evidence regarding his heavy drug use and expenditures was relevant to show his motive for committing the offense and for testifying against appellants, and as appellate counsel phrased it, “to open up inquiry into the possibility that Boyd may have spent considerably more money than the $4000 he was willing to admit to, and perhaps more than the one-third share he claimed to have gotten from Adams and Lavette.” There was testimony indicating that when Boyd first spoke with police about the incident, appellants’ names were mentioned to him, therefore the defense position was that Boyd merely told police what they wanted to hear — that appellants were involved. This court has stated that “[gjreat latitude should be allowed in the cross-examination of an accomplice who testifies for the prosecution.” Powe v. State, 413 So.2d 1272 (Fla. 1st DCA 1982). The defense should be allowed wide latitude .to demonstrate bias or possible motive for a witness’s testimony, Nelson v. State, 395 So.2d 176 (Fla. 1st DCA 1980); Harmon v. State, 394 So.2d 121 (Fla. 1st DCA 1980); Blair v. State, 371 So.2d 224 (Fla. 2d DCA 1979). Any evidence tending to establish that a witness is appearing for the state for any reason other than to tell the truth should not be kept from the jury, Holt v. State, 378 So.2d 106 (Fla. 5th DCA 1980).

The judgment and sentence for conspiracy to commit grand theft is REVERSED. The judgment and sentence for grand theft is REVERSED and REMANDED for a new trial.

LARRY G. SMITH and WENTWORTH, JJ., concur.


author: LEHAN, Judge.

text:
    Florence G. NOFRIO, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, UNEMPLOYMENT APPEALS COMMISSION, and Shopper’s Special, Inc., Appellees.
    No. 83-324.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Rehearing Denied Dec. 28, 1983.
    Philip L. Hamilton, Naples, for appellant.
    Scott F. Randolph, Tallahassee, for ap-pellee Unemployment Appeals Com’n.
   LEHAN, Judge.

Florence Nofrio appeals a denial of her claim for unemployment benefits. We affirm.

Mrs. Nofrio was employed by Shopper’s Special, Inc. In the summer of 1982 she informed her supervisor, John Sharkey, that she wanted to take some time off from work in addition to her two-week vacation. From the testimony at the hearing before the unemployment compensation appeals referee, it is apparent that Mrs. Nofrio believed that her employer consented to her plan to take an extended leave of absence and return to work sometime in the fall when business picked up after the employer’s “slow” season. However, Mr. Sharkey apparently believed that Mrs. Nofrio was terminating her employment with the mutual understanding that, because she was an excellent worker and valued employee, she would likely be re-employed by Mr. Sharkey when she returned to town after the slow season.

The unemployment compensation appeals referee found that Mrs. Nofrio had not taken a legitimate leave of absence and, therefore, was not entitled to unemployment benefits pursuant to section 443.101, Florida Statutes (1981). The Unemployment Appeals Commission affirmed the referee’s decision.

Although we feel sympathy for Mrs. No-frio’s plight, caused by what seems to have been a simple misunderstanding, we also affirm the denial of benefits. It seems to us that an employee who informs her employer that she will be taking a vacation trip of several months duration, without an explicit understanding and assurance that her job will remain open, can be said to have voluntarily left her job without good cause and is not entitled to unemployment benefits. Cf. Board of County Commissioners v. Florida Department of Commerce, 370 So.2d 1209 (Fla. 2d DCA 1979); W.M. Palmer Co. v. Meeks, 354 So.2d 893 (Fla. 1st DCA 1978).

AFFIRMED.

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


author: WENTWORTH, Judge. JOANOS, Judge,

text:
    Carol J. WILLIAMS, et vir, Appellants, v. H. Wyatt McNEIL, Appellee.
    No. AR-251.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.
    Rehearing Denied Dec. 15, 1983.

      Joseph S. Farley, Jr., of Mahon, Mahon & Farley, Jacksonville, for appellants.
    Mattox S. Hair and William M. Corley, of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellee.
   WENTWORTH, Judge.

This is an appeal from a final summary judgment entered in favor of the defendant in a medical malpractice suit. We reverse.

On August 9, 1982, appellant filed a complaint alleging (1) that appellee had negligently severed her ureter during surgery for an ovarian cyst, (2) that the standard of care he provided was below the standard exercised by other physicians in the community, and (3) that appellant suffered additional expenses due to corrective surgery, and mental anguish and loss of wages due to appellee’s negligence. Appellee’s answer admitted only that he had performed surgery on appellant for an ovarian cyst and denied the other allegations.

On December 20, 1982, appellee filed a motion for summary judgment accompanied by his own affidavit. While the affidavit described the doctor’s diagnosis and care of appellant in more detail than that found in the pleadings, it neither admitted nor denied that appellant’s ureter had been severed during the operation for the ovarian cyst and omitted any reference to appellant’s alleged necessity for corrective surgery. A hearing on the motion was held on January 14, 1983. At that time, appellant filed a motion for continuance on the grounds that further time for discovery was needed for obtaining an expert witness. The motion also pointed out that appellant had testified in her deposition that appellee had told her that her ureter had been clipped during the surgery.

The trial court denied the motion for continuance and entered the summary final judgment, finding no genuine issue of material fact and relying on Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DCA 1977); Sims v. Helms, 345 So.2d 721 (Fla.1977); Reynolds v. Burt, 359 So.2d 50 (Fla. 1st DCA 1978); and Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975). We find that the cases relied on by the trial court are distinguishable and that this case is controlled by Holl v. Talcott, 191 So.2d 40 (Fla.1966).

In Berrios, the second district was reviewing a summary judgment in favor of the doctor in a case involving facts strikingly similar to this one: The plaintiff’s ureter had been damaged during a hysterectomy. The court found that the summary judgment was proper because the plaintiff had failed to produce expert testimony supporting her claim of negligent surgery and such testimony is required in order to prove negligent medical treatment in that context. Similarly, the court in Sims held that:

Negligence cannot be inferred from the fact that the surgery was unsuccessful or terminated in unfortunate results.

Id. at 723. Thus, it is established that in order to prevail on a claim of negligent medical treatment, a plaintiff will generally be required to present expert testimony that the care provided by the defendant was below the standard provided by other experts in the community.

Berrios and Sims, however, do not alter the movant’s burden in a summary judgment proceeding, and there are two important facts which distinguish this case from Sims and Berrios. The first is the insufficiency of the evidence supporting the motion for summary judgment in this case to shift to appellant the burden of demonstrating the existence of an issue of material fact. Cf. Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975). As in Holl, supra, appellee’s affidavit merely denied the charges in the complaint and stated that what was done by appellee was in accord with accepted practice and standards in the community. Holl held that such an affidavit was insufficient to show the nonexistence of material fact in issue. Sims and Berrios are distinguishable because there the movants produced depositions and affidavits of others in the medical field which established that the plaintiffs’ injuries were among the ordinary risks involved in the surgery.

Appellee s further position is that the plaintiffs failure to produce an expert witness by the time of the hearing on his motion for summary judgment conclusively showed that she was unable to do so, and thus under the Holl standard he met his burden. Appellee again relies on Sims and Berrios, which held that summary judgment was proper because the record conclusively showed that the plaintiffs were unable to produce experts. Again, however, those two cases are distinguishable from the one at hand. In Sims it was undisputed that the plaintiff was unable to produce an expert who would testify that the defendant was negligent. In Berrios the defendant’s motion for summary judgment was filed on July 10,1975, and, due to plaintiff’s requested continuance, was not heard until May of 1976. Thus, it was reasonable for the court to find plaintiff had ample time within which to produce an expert and to conclude that she would be unable to do so.

In this case, on the other hand, the hearing on the motion for summary judgment was held approximately three weeks after it was filed, and during that three weeks the Christmas and New Year holidays intervened. While the trial judge may have had proper reasons for denying the motion for continuance, at that point appellee clearly had not, on the record before us, shown that appellant would be unable to produce an expert witness. The motion for summary judgment should not, accordingly, have been granted.

The final summary judgment is reversed, and the cause remanded for further proceedings.

LARRY G. SMITH, J., concurs.

JO ANOS, J., dissents with opinion.

JOANOS, Judge,

dissenting.

The summary judgment appealed from should be affirmed upon the authority of Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DCA 1977) and Sims v. Helms, 345 So.2d 721 (Fla.1977).


text:
    Shelton Penson DONALD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AT-362.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

REVERSED. Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983). Pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), we certify to the Florida Supreme Court the following question as one of great public importance:

Is a circuit court deprived of subject-matter jurisdiction when the caption of the charging document charges the defendants] with felony petit theft and the body thereof cites the proper Florida Statute, § 812.014(2)(c), but the text of the charge alleges the value of the property to be less than $100 and does not specify the substantive elements of two prior petit theft convictions?

ERVIN, C.J., and BOOTH and THOMPSON, JJ., concur.


text:
    Jay MYERS, Appellant, v. STATE of Florida, Appellee.
    No. AQ-104.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.
    Michael E. Allen, Public Defender, and David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The only substantial issue presented by this appeal is whether appellant, a minor indicted by a grand jury for two counts of first-degree murder, was “transferred” within the meaning of section 39.02(5)(d), Florida Statutes (Supp.1982), and thus entitled to findings of fact by the trial court as to why he should not be sentenced as a juvenile. We hold that such indictments are not “transfers” within the meaning of the statute and affirm.

Judge v. State, 408 So.2d 831, 832 (Fla. 4th DCA 1982), held that such an indictment is a transfer within the meaning of section 39.02(5)(d). Judge, however, is no longer controlling, inasmuch as the Florida Legislature, by chapter 81-269, section 1, Laws of Florida, amended section 39.-02(5)(d) by eliminating the word “indictment” from the statute. We therefore adopt the result of Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980) and find that there was no transfer as contemplated by the statute.

AFFIRMED.

ERVIN, C.J., JOANOS, J. and TILLMAN PEARSON (Ret.), Associate Judge, concur.


text:
    Lanoris NEALY, Appellant, v. CITY OF WEST PALM BEACH and Crawford & Company, Appellees.
    No. AQ-238.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.
    Rehearing Denied Dec. 28, 1983.
    Timothy H. Kenney of Kenney, Boswell & Kaufman, West Palm Beach, for appellant.
    William P. Doney, Palm Beach, for appel-lees.
   PER CURIAM.

The deputy commissioner’s order is supported by competent substantial evidence except as to the award of temporary partial disability benefits. As to such award, the deputy applied the formula under the 1979 version of Section 440.15(4)(a), Florida Statutes. Instead, as appellees concede, the deputy should have relied upon Section 440.15(4), Florida Statutes (1977), the subject accident having occurred on July 31, 1977. We note also that appellees have, in their answer brief, attacked the deputy’s order awarding temporary partial disability on the grounds that appellant’s work search was inadequate and, thus, the award of any temporary partial disability benefits was error. That issue has not been properly raised as appellees have failed to cross-appeal. See Fla.W.C.R.P. 16(d).

The order is AFFIRMED except as to the award of temporary partial disability, and the cause is REMANDED for redetermination of such temporary partial disability benefits by utilizing the provisions of Section 440.15(4), Florida Statutes (1977).

WENTWORTH, NIMMONS and ZEH-MER, JJ., concur.


text:
    Audrey Oliver PARKER, Appellant, v. William K. GORDON, Martin F. Avery, Jr., O. Edgar Williams, Jr., Robert C. Scott and Berryhill, Avery, Williams & Scott, P.A., Appellees.
    No. 82-1577.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Rehearing Denied Jan. 17, 1984.

      Oliver Addison Parker, Fort Lauderdale, for appellant.
    Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellees.
   PER CURIAM.

This cause is per curiam affirmed.

We are cognizant of the fact that the trial court erred in dismissing this suit on the ground that there had been a full year of inactivity. In the first place, Rule 1.090(a), Florida Rules of Civil Procedure, clearly states, “In computing any period of time prescribed or allowed by these rules ... the day of the act ... from which the designated period of time begins to run shall not be included.” This rule applies in calculating time for purposes of Rule 1.420(e), and the appellate decisions reveal that record activity even on the 365th day of the succeeding year will suffice to defeat a motion to dismiss for failure to prosecute. See, e.g., Johnson v. Mortgage Investors of Washington, 410 So.2d 541 (Fla. 2d DCA 1982). In the instant case the original complaint was filed on January 12, 1981, and the amended complaint, on January 12, 1982. The latter was the last day of the year, and filing of the amended complaint constitutes record activity. Mueller v. North Broward Hospital District, 403 So.2d 581 (Fla. 4th DCA 1981). Furthermore, according to Florida East Coast Railway v. Russell, 398 So.2d 949 (Fla. 4th DCA 1981), “The one year period prescribed by Rule 1.420(e) is to be measured by calculating the time between the date of the last record activity and the date of the filing of the motion to dismiss.” Id. at 951. Accord Rivera v. A.M.I.F., Inc., 417 So.2d 304 (Fla. 3d DCA 1982). Since in the instant case only twenty-two days elapsed between the filing of appellant’s amended complaint and appellees’ motion for dismissal, it is clear the court was in error.

However, “[e]ven when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980). We have applied this “right for the wrong reason” test, as restated in International Insurance Co. v. Ballon, 403 So.2d 1071, 1076 (Fla. 4th DCA 1981), in the case at bar and conclude no cause of action was stated in the filed complaint.

Appellant’s amended complaint is most explicit as to the facts it alleges but exceedingly obscure as to the causes of action it purports to state. Count I pertains to the appellee law firm’s legal representation of appellant in connection with a real property transaction. Appellant is a real estate broker who owned land jointly with four other persons. All five co-owners contracted to sell the property, but terminated the agreement because the contract purchasers were unable to obtain the necessary financing and the co-owners would not accept an additional person the purchasers sought to bring in in order to obtain the necessary financing. One of the law firm’s associates, William K. Gordon, was retained by all five co-owners to defend against the contract purchasers’ suit for specific performance and/or damages in excess of $1 million. Gordon recommended a settlement but when all of the co-owners, except the appellant, agreed to settle, Gordon withdrew from representing the latter but continued the representation of the other four. Gordon allegedly coerced appellant into giving up and agreeing with the other four to settle. If Count I intends to charge ethical misconduct for doing so, it is before the wrong forum. If on the other hand it refers to legal malpractice — in which case the complaint is defective because negligence is not alleged — then on the face of the pleading the two year limitation period of Section 95.-ll(4)(a), Florida Statutes (1981), applies and the statute has run.

Finally, if Count I was intended to allege a breach of fiduciary duty, it would be necessary to state with particularity the facts which purportedly created the duty that was breached, so that the court could determine as a matter of law whether there was such a duty. See 61A Am.Jur.2d Pleading § 18. As presented, the complaint merely makes the conclusory statement that a fiduciary duty was violated. This is not sufficient.

Count II alleges that Gordon was instrumental in persuading the co-owners to force the appellant to agree to the listing of the aforementioned parcel with a different broker after appellant’s exclusive listing had expired. Thereafter, appellant succeeded in getting Gordon disqualified from representing the other four owners because he had previously represented her. However, as already noted the entire law suit was settled. It is again impossible to decipher what cause of action this count presents. If it is Gordon’s ethical violation or legal malpractice, the same defects of forum and limitation period, respectively, apply as to Count I. The claim cannot be predicated on lack of merit of the action instituted against appellant, because she settled. It also cannot constitute interference with a business relationship, since professional counsel, being under a duty to advise his clients, is not liable for interference. See 45 Am.Jur.2d Interference §§ 33 and 34 (1969); Restatement (Second) of Torts §§ 770, 772 (1979). Nor can Count II refer to breach of a fiduciary duty, because the attorney-client relationship with appellant had ceased. All that can be said for this count is that it constitutes stream of consciousness.

Count III overlaps Count I in so far as it seeks refund of fees paid by appellant while appellant was still Gordon’s client. If those fees were paid for services rendered prior to the alleged breach, as it appears, there can be no basis for refund. Likewise, the appellant had no interest in fees paid by the four other co-owners to their attorney out of their own resources. If, under whatever theory, appellant is entitled to damages, such would be based on injury or loss sustained at Gordon’s hands rather than as a result of legal fees paid by parties who had later become adverse to her way of thinking.

In Count IV appellant seeks an injunction prohibiting Gordon’s law firm from any future violation of its fiduciary obligations to her, and particularly against communicating with or representing appellant’s co-owners. It seems clear that whatever duty the law firm may have owed appellant, it ended when the attorney-client relationship terminated, except that where there was a prior joint representation, the law firm ought not, ethically, to represent the co-owners contrary to appellant’s interest and possibly use confidences acquired while they also served appellant. This ethical obligation would be applied ad hoc, if requested, should litigation again arise between appellant and her co-owners. No cause of action known to us could invoke a permanent ban on the appellant communicating with the co-owners or representing them with the exception that the law firm could not represent the co-owners against appellant. Moreover, at the very threshold, there are no ultimate facts alleged showing irreparable harm, a clear legal right, or an inadequate legal remedy, Walsh v. French, 409 So.2d 1131 (Fla. 4th DCA 1982).

Iñ sum, while dismissal based on failure to prosecute was inappropriate, dismissal for failure to state a cause of action appears entirely proper.

We find no merit in the remaining point on appeal.

AFFIRMED.

DOWNEY, LETTS and HERSEY, JJ., concur.