
    STATE of Florida, Appellant, v. Debra Bryant HEIL, Appellee.
    No. 75-634.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    
      David H. Bludworth, State’s Atty., and Gerald A. McGill, Asst. State’s Atty., West Palm Beach, for appellant.
    Joseph K. Still, Jr., Law Offices of Michael T. Mallon, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed.

CROSS and OWEN, JJ., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

In my opinion the trial court’s order granting defendant a new trial was in direct conflict with Rule 3.600, F.R.Cr.P., and hence was erroneous.

The order granting new trial set forth as the only basis therefor “that the Defendant was inadequately represented by Counsel because he (counsel) suffered from laryngitis at the time of trial.” Although the record of the testimony of the hearing on the motion for new trial reflects that the defense counsel was suffering from laryngitis there was no evidence in the record to reflect that the jury was unable to hear defense counsel or that the defendant did not otherwise receive a fair and impartial trial. Cf. Potts v. State, Fla.App.1971, 242 So.2d 729. At the very least the state should have been afforded the opportunity to a full cross-examination and rebuttal testimony on the issue of whether the jury was unable to hear defense counsel’s presentation.

Accordingly, I would reverse the order granting new trial and remand the cause back to the trial court for further proceedings not inconsistent herewith.  