text:
    L. G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-269.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.

      Bennett H. Brummer, Public Defender, and John G. Admire, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

L.G. pled nolo contendere to a delinquency charge reserving an appellate challenge to the denial of his motion to discharge on speedy trial grounds. We reverse.

The appellant was arrested on May 10, 1980. The petition for delinquency was filed against him on June 4, 1980. On July 8, 1980, at a sounding at which L.G. was present, the adjudicatory hearing was scheduled for July 29, 1980. Subsequently, on July 25, 1980, at the request of the state and with the previously secured consent of L.G.’s special assistant public defender, who asked only that he be informed of the new date, the adjudicatory hearing was continued until August 6, 1980. While his attorney was informed of this fact by telephone on August 4, 1980, neither L.G. nor his parents were summoned or notified of the August 6 hearing date in any way. Consequently, they were not present at that time. Because of this fact, and over the objection of defense counsel, the trial court continued the hearing to August 27, beyond the speedy trial time which expired on August 8, 1980. Fla.RJuv.P. 8.180(b). In accordance with that ruling, the court subsequently denied the respondent’s August 11, 1980 motion to discharge.

The trial court based its decisions on the conclusion that the juvenile should have been present at the scheduled August 6 adjudicatory hearing by virtue of the notice given his counsel. We disagree. Under Fla.R.Juv.P. 8.190(a), “[njotice of the [adjudicatory] hearing shall be by summons as provided in Rule 8.120.” Fla.R.Juv.P. 8.120, in turn specifically requires service of the summons and obviously does not permit mere informal notice through an attorney. See also, Sections 39.03(2), 39.06, Florida Statutes (1979). Because of the mandatory requirements of the juvenile rules — and the obvious practical distinctions, which the rules reflect, in the attorney-client relationship as it respectively concerns adults and juveniles — we reject the state’s contention that State v. Grooms, 389 So.2d 313 (Fla. 2d DCA 1980), which holds that notice to an attorney is notice to his adult client for criminal speedy trial purposes, is applicable to juvenile proceedings. Because L.G. was thus not properly summoned and was therefore not obliged to be present at the August 6 adjudicatory hearing, there was no basis to extend the speedy trial time on the ground that he was not there. See Datema v. Barad, 372 So.2d 193 (Fla. 3d DCA 1979); Mishan v. Crews, 363 So.2d 1178 (Fla. 1st DCA 1978); State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978). For this reason, the adjudication of delinquency is reversed and the cause remanded with directions to discharge the respondent.

Reversed.

      . At oral argument, the state raised the possibility that this device is not available under the juvenile rules. Since the contention was never previously made, either in the trial court— where the procedure was agreed to by all concerned — or in a motion to dismiss or the appel-lee’s answer brief on appeal, we consider the contention to be untimely asserted and therefore do not further consider that point.

      . Specifically, L.G.’s lawyer did not inform him of the new date.

      . The basis of our decision to reverse renders it unnecessary to consider the appellant’s contentions that the order, as subsequently reduced to writing, did not conform with the requirements of Fla.R.Juv.P. 8.180(c), see C.S. v. State, 390 So.2d 457 (Fla. 3d DCA 1980); M.B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980) and that the “continuous availability” requirement of the criminal speedy trial rule, Fla.R.Crim.P. 3.191, is not even impliedly (as it is clearly not explicitly) pertinent to the application of the juvenile equivalent, Fla.R.Juv.P. 8.180.

      .Rule 8.120. Process
      (a) Issuance of Summons. Upon the filing of a petition, the clerk shall issue a summons.
      (b) Contents of the Summons. The summons shall require the person on whom it is served to appear for a hearing at a time and place specified. Except in cases of medical emergency, the time of hearing shall not be less than twenty-four (24) hours after service of the summons. If the child is not detained by an order of the court, the summons shall require the custodian to produce the child at the said time and place. A copy of the petition shall be attached to the summons.
      (c) Service. The summons and other process shall be served upon such persons and in such manner as required by law. If the parents or custodian are out of the state and their address is known the clerk shall give them notice of the proceedings by mail.

      . There is no suggestion that these requirements were waived as permitted by Fla.R. Juv.P. 8.120(e) and 8.190(a).

      . At the July 25, 1980 hearing at which the new hearing date was set, the HRS representative present undertook and was ordered by the court to give proper notice to L.G. The Department did not do so.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Juan PENA-SALAZAR, Appellee.
    No. 81-1089.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

■ This is an appeal by the state from an order entered by the trial court dismissing an information under Fla.R.Crim.P. 3.190(c)(4). We have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla. Const.; § 924.07(1), Fla.Stat. (1979).

Our review of the motion to dismiss filed herein reveals that it was legally insuffi-dent under Fla.R.Crim.P. 3.190(c)(4), and, therefore, should have been summarily denied by the trial court without regard to the state’s traverse filed subsequent thereto. The motion fails to demonstrate, as required by the above rule, that the alleged undisputed material facts as set forth in the motion, “do not establish a prima facie case of guilt against the defendant.” Fla.R. Crim.P. 3.190(c)(4). Indeed, the defendant concedes as much on this appeal but urges us to disregard this insufficiency by looking to the state’s traverse for additional undisputed material facts to sustain the order under review. We reject the defendant’s invitation to do so as we have previously held that a legally insufficient motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) “should be summarily denied by the trial court without regard to any traverse or demurrer which may be filed by the state.” State v. Sedlmayer, 375 So.2d 887, 888 (Fla. 3d DCA 1979); see also State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977).

The order under review is, accordingly, reversed and the cause remanded to the trial court with directions to reinstate the information against the defendant.

Reversed and remanded.


author: NESBITT, Judge.

text:
    Fred D. McFARLIN, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    No. 80-996.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.

      Joseph M. Ryan, Pompano Beach, for appellant.
    David M. Maloney, Tallahassee, for appel-lee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

McFarlin appeals the order of the Division of Pari-Mutuel Wagering which: revoked his license as a horse trainer; fined him an aggregate of $400 for separate violations of the Division’s rules; and declared him ineligible for ground privileges for two years.

Urine samples demonstrated that “Cypress Storm” (a horse trained by McFarlin) ran in two races at Pompano Race Track, one on November 28 and the other on December 7, 1979, under the influence of bu-torphanol.

McFarlin was charged with having violated Florida Administrative Code Rule 7E-4.25(12)(a) [running a horse under a prohibited substance]; Rule 7E-4.05 [the absolute insurer’s rule]; as well as Rule 7E-4.25(13) [the drug-medication rule]. He contends that the cited regulations constitute an unwarranted delegation of legislative authority under Sections 550.02 and 550.24, Florida Statutes (1979). We recently decided such a contention adversely to other horse trainers. Solimena v. Department of Business Regulation, Division of Pari-Mutuel Wagering, 402 So.2d 1240 (Fla.3d DCA 1981). Accordingly, we affirm the administrative action with respect to McFarlin’s revocation. Accord, Division of Pari-Mutuel Wagering, Department of Business Regulation v. Caple, 362 So.2d 1350 (Fla. 1978).

There is no merit to McFarlin’s contention that the stewards’ action is required to precede that of the Division. Solimena v. Department of Business Regulation, Division of Pari-Mutuel Wagering, supra; Cal-fin v. Department of Business Regulation, Division of Pari-Mutuel Wagering, 391 So.2d 739 (Fla.4th DCA 1980).

There are serious errors with respect to the remainder of the order imposing the fine and denying McFarlin ground privileges for two years.

McFarlin was fined an aggregate of $400 for two separate violations, ostensibly pursuant to Florida Administrative Code Rule 7E-4.09(3), which purports to authorize the levy of a fine of $200 for each separate violation. The authority for adopting the rule appears to be Section 550.02, Florida Statutes (1979). However, a simple reading of the statute fails to disclose the specific authority for the Division to levy such a fine. Moreover, the argument of the Division expressly ignores Article I, Section 18 of the Declaration of Rights of the Florida Constitution which provides:

No administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.

It is apparent that insofar as Rule 7E — 4.-09(3) sought to levy a fine, it was beyond the purview of the agency to adopt or enforce it without specific legislative authority. Consequently, that portion of the order which sought to impose a $400 fine against McFarlin is vacated.

We agree with McFarlin’s contention that the agency was without authority to expel him from the grounds and consequently, that portion of the order is also vacated. Calfin v. Department of Business Regulation, Division of Pari-Mutuel Wagering, supra.

As modified, the administrative order of the Division of Pari-Mutuel Wagering revoking McFarlin’s license as a horse trainer is affirmed.

      . We observe by the adoption of Chapter 80-270, Laws of Florida, effective October 1, 1980, codified as Section 550.241(3)(a), Florida Statutes (1980 Supp.), the Legislature has evidently clothed the Division with authority, when properly exercised, which might support the levy of a fine.


author: DANIEL S. PEARSON, Judge.

text:
    Wilbert CONEY, Appellant, v. FIRST STATE BANK OF MIAMI, as Trustee, Under the Will of Dorothy J. Brooks, Deceased, and Gloria Gonzalez and Raul Gonzalez, beneficiaries under the Will of Dorothy J. Brooks, Deceased, Alireza Abbassi, and James Lazier d/b/a Lazier’s Lounge, a Florida Corporation, Appellees.
    No. 80-2179.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Samuel M. Spatzer, Gerald Silver-man, Miami, for appellant.
    Golembe & Fried and Marc Linowitz, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Wilbert Coney was a judgment creditor, in the amount of $130,000, of James Lazier, d/b/a Lazier’s Lounge. Coney sought to collect on his judgment through a writ of execution on Lazier’s property. Included in the property levied upon by the Sheriff was an alcoholic beverage license in Lazier’s name. It appears that Lazier obtained the license as part of a recorded lease between him and Gloria and Raul Gonzalez, the owners of the package store and bar and the alcoholic beverage license at the location of the leased premises. Thus, the extent of Lazier’s interest in the license was that of a lessee of the Gonzalezes, who, as lessors, retained an interest which would revert to them upon the termination of the lease.

The license, along with other of Lazier’s property levied upon, was duly advertised for sale. Prior to the Sheriff’s sale, the lessors petitioned to intervene in the Coney-Lazier case and to stay the sale. When Coney agreed with the lessors that the successful bidder at the sale could only purchase what Lazier owned, that is, a leasehold interest in the license, the Gonzalezes withdrew their motions and let the sale go forward. Alireza Abbassi bought the liquor license at the Sheriff’s sale for $10,000.

After the sale, counsel for the lessors was advised by the Florida Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (the Division), that as far as the Division was concerned, a purchaser of an alcoholic beverage license at a Sheriff’s sale is able to have the license put in his name and may convey it to a third party. The lessors then moved to set aside the sale asserting that they had been deprived of their reversionary interest in the property sold without an opportunity to be heard. Abbassi then moved to set aside the sale, but on the ground that he was not aware of the Gonzalezes’ reversionary interest when he bought the license at the sale. The trial court set aside the sale, ordered Coney to return the proceeds to Abbassi; ordered Lazier to reimburse Abbassi for a renewal fee Abbassi had already paid to the Department of Business Regulation; and ordered the Department of Business Regulation, not a party to the suit, to return the license to the lessors.

One thing is abundantly clear. Were it Abbassi alone who sought to set aside the Sheriff’s sale, he would be entitled to no relief. If the license he bought was indeed subject to the lessors’ reversionary right, the lease between Lazier and the Gonzalezes was a matter of public record open to Abbassi’s inspection, and his failure to acquire knowledge of the extent of Lazier’s title and interest makes him subject to the doctrine of caveat emptor. Lindsley v. Phare, 115 Fla. 454, 155 So. 812 (Fla.1934); Balding v. Fleisher, 279 So.2d 883 (Fla. 3d DCA 1973). Accord, Atod, Inc. v. Coleman, 214 So.2d 769 (Fla. 3d DCA 1968). If, on the other hand, because, as the Gonzalezes claim, the effect of the Division recognizing Abbassi’s license as freely renewable and transferable without regard to any rever-sionary interest is to extinguish their rever-sionary interest, then Abbassi bought exactly what he set out to buy.

What confounds the issue is the lessors’ claim. Their claim is simply that they own a reversionary interest in the license which, they contend, is not recognized by the Division; and, in turn, the Division’s refusal to recognize a lessor’s interest allows the person in whose name the license is held to defeat the lessor’s rever-sionary interest. We fail to see how the lessors’ claim has the slightest thing to do with the propriety of the judicial sale, which was neither inadequate in price, nor tainted in any way by fraud, mistake or any other circumstance which could lead a court to set it aside. See e.g., Arlt v. Buchanan, 190 So.2d 575 (Fla.1966); Maule Industries, Inc. v. Seminole Rock and Sand Company, 91 So.2d 307 (Fla.1957); Crichlow v. Equitable Life Assurance Society of the United States, 131 Fla. 752, 180 So. 382 (1938); Edward A. Lashins, Inc. v. Baumann, 201 So.2d 495 (Fla. 2d DCA 1967); Subsaro v. Van Heusden, 191 So.2d 569 (Fla. 3d DCA 1966). Abbassi bought, and could only buy, Lazier’s right, title and interest in the alcoholic beverage license. Balding v. Fleisher, supra. If the Division, for its purposes, treats Abbassi’s ownership of the license as unencumbered and ignores the Gonzalezes’ reversionary interest, that matter is one that must be resolved among Abbassi, the Gonzalezes, and the Division. The due process to which the Gonzalezes are surely entitled will have to come in the dispute among Abbassi, the Gonzalezes and the Division. That dispute, however, has no relevance to Coney’s right to enforce his judgment against Lazier’s right, title and interest to the license by an execution sale, which in all respects was properly conducted. The result of setting aside the sale on a claim such as that made by these lessors is to make a lessee’s interest in an alcoholic beverage license not subject to execution and judicial sale simply because the Division does not protect a lessor’s reversionary interest. But a liquor license is quite clearly property of value, see House v. Cotton, 52 So.2d 340 (Fla.1951), which, like any other non-exempt property, may be levied upon and sold to satisfy a judgment debt.

We accordingly reverse the order of the lower court and remand the cause for further proceedings consistent with this opinion.

      .The applicable rule, Florida Administrative Code Rule 7A-2.06(7), provides:
      “Forced Sale: In the case of a foreclosure or a forced judicial sale under distress or otherwise, including sales in bankruptcy proceedings, under dissolution of partnerships and corporations, where the alcoholic beverage license is included as property sold pursuant to an order of a court of competent jurisdiction, the license involved shall be transferred to the purchaser at such sale upon proper application being made therefor with the appropriate district office of the Division of Beverage. Said application shall be accompanied by a certified copy of the court’s order and confirmation of sale and shall be processed in the usual manner, except for the non-payment of the transfer fee.”

      . Apparently, the Gonzalezes’ interest in the property came about as a result of their being beneficiaries under the will of Dorothy J. Brooks, deceased. After the Sheriffs sale, the First State Bank of Miami, as trustee under the will, alleged that the estate had a reversionary interest in the liquor license and moved to vacate the sale. The Bank merely supported Abbassi’s position. The Bank has filed no brief on this appeal. For purposes of this opinion, we treat the Gonzalezes as the lessors.

      . A statutory transfer to satisfy the records of the Division is not, however, the same as a transfer of property rights. Concannon v. St. John, 384 So.2d 903 (Fla. 5th DCA 1980); Wright v. Cade, 349 So.2d 833 (Fla. 1st DCA 1977). What Abbassi owns and what the Division treats him as owning are two different things.

      . Anomalously, the Division does recognize the lien of a lender at least to the extent of permitting the lienholder who has filed the appropriate notice with the Division to protect its interest in the event of revocation or suspension proceedings against the license. § 561.65, Fla. Stat. (1979).


author: PER CURIAM. SCHWARTZ, Judge

text:
    Robert Lee LATTIMORE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-432.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Bennett H. Brummer, Public Defender and Micheál Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son and Joel D. Rosenblatt, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed.

SCHWARTZ, Judge

(dissenting).

In my view, the trial judge erred prejudi-cially in declining to permit counsel to argue to the jury concerning the effect of the prosecution’s failure to produce fingerprint evidence at the defendant’s burglary trial. See Thomas v. State, 326 So.2d 413 (Fla. 1976); Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1979). Since I cannot agree with the state’s claim that, in the context in which the ruling was made, a formal proffer of the contents of the proposed argument was necessary to preserve the issue, see Browder v. Da Costa, 91 Fla. 1, 109 So. 448, 451 (1926) (proffer not required when “it plainly appears from the question propounded that the answer .. . would be relevant”), I would therefore reverse for a new trial.


text:
    George M. HUFF, Sr., Appellant, v. STATE of Florida, Appellee.
    No. AB-74.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1981.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

The appellant’s conviction for manslaughter is affirmed in its entirety. However, we find that the sentence imposed by the trial court is in violation of the rule fashioned by and given retroactive effect in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107, 1111-12 (Fla. 1981). Therefore, we remand this cause to the trial court for sentencing in accordance with Villery. In sentencing the appellant again, the court should consider the principles set forth in North Carolina v. Pearce, 395 U.S. 711, 723-26, 89 S.Ct. 2072, 2079-81, 23 L.Ed.2d 656 (1969).

SHAW, WENTWORTH, and THOMPSON, JJ., concur.


text:
    Jackie Lamar WATTS, Appellant, v. STATE of Florida, Appellee.
    No. AB-469.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1981.
    Michael Allen, Public Defender and Melanie Hines Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Raymond Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 400 So.2d 542 (Fla.3rd DCA 1981).

SHAW, JOANOS and THOMPSON, JJ., concur.


text:
    Joseph C. MACKS, Appellant, v. STATE of Florida, Appellee.
    No. AG-7.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1981.
    Joseph C. Macks, pro se.
    No Appearance for appellee.
   PER CURIAM.

The sentence under review, which was imposed upon probation revocation, is hereby affirmed. We are unable to discern whether appellant served any time in jail pursuant to his sentence on the second count of grand theft. If he served any time in addition to the year served on the first count, appellant should receive credit to be deducted from his current four-year sentence. The cause is accordingly remanded for the trial judge to determine whether appellant actually served any jail time pursuant to the split sentence given for the second count of grand theft. Any credit given the appellant must be for a specific period of time and shall be provided for in the sentence, Section 921.161(1), Florida Statutes (1979).

Affirmed in part, and remanded for appropriate action consistent with this opinion.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Daniel B. ELLENBERGER, Appellant, v. STATE of Florida, Appellee.
    No. AG-74.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1981.
    Daniel B. Ellenberger, pro se, for appellant.
    No appearance for appellee.
   PER CURIAM.

The sentence under review, which was imposed upon revocation of probation, is affirmed except insofar as it fails to give the appellant credit for time served on the two prior split sentence probation orders resulting from the burglary conviction and subsequent probation revocation. The cause is accordingly remanded to the trial court with directions to modify the sentence by giving the appellant credit for time served on the two split sentence probation orders. State v. Jones, 327 So.2d 18 (Fla. 1976).

Affirmed in part, reversed in part, and remanded for appropriate action consistent with this opinion.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Richard B. STOTT, Appellant, v. STATE of Florida, Appellee.
    No. 81-1200.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 1981.
    Richard B. Stott, Lawtey, pro se.
    No appearance for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The notice of appeal in the present case was filed with the lower court on September 18, 1981, more than thirty days after rendition of the order denying relief. Therefore, this court lacks jurisdiction to hear the matter. DISMISSED sua sponte.

ORFINGER and COWART, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    Frank BEHRENS, Petitioner, v. Honorable J. William WOODSON, Honorable T. Waddell, Judges of the Circuit Court, Eighteenth Judicial Circuit, Brevard County, Titusville, Florida, et al., Respondents.
    No. 81-294.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 1981.
    Frank Behrens, in pro per.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for respondents.
   WRIT OF HABEAS CORPUS

DAUKSCH, Chief Judge.

This is before us upon a petition for “Writ of Mandamus and/or Habeas Corpus.” Petitioner seeks relief from an allegedly illegal sentence violative of the rule in Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), revised, 396 So.2d 1107 (Fla.1981). Although petitioner seems to have grounds for relief we shall allow the circuit court to first consider the matter. Massey v. State, 389 So.2d 712 (Fla. 2d DCA 1980); Sanders v. State, 386 So.2d 256 (Fla. 5th DCA 1980); Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979). Compare Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). Possibly some sort of petition has been filed in the circuit court but we have no record of an order concerning the Villery sentence so we presume the court has not ruled upon the matter. We deny the petition without prejudice to petitioner to apply to the circuit court under Florida Rule of Criminal Procedure 3.850 and if not properly afforded relief then to seek relief here through a timely filed notice of appeal.

PETITION DENIED.

ORFINGER and COWART, JJ., concur.


text:
    William Robert SOUTHERN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1707.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Joseph J. Titone, Fort Lauderdale, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction is affirmed, but the sentence is vacated and the cause is remanded to the trial court with instructions to resentence pursuant to the dictates of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    FLORIDA POWER AND LIGHT COMPANY, Appellant, v. Richard C. LUBIN, as Personal Representative of the Estate of Bette L. Ackerman, deceased, and Willi Ackerman, Appellees.
    No. 81-726.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Marjorie D. Gadarian of Jones & Foster, P.A., West Palm Beach, for appellant.
    Jeffrey Leibovit of Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellees.
   BERANEK, Judge.

This is an interlocutory appeal from the grant of a motion made pursuant to Rule of Civil Procedure 1.540(b). We have jurisdiction pursuant to Rule of Appellate Procedure 9.130(a)(5). The present civil action is a suit by plaintiff/appellee against Florida Power and Light Company, among others, for the alleged wrongful death of his wife. Plaintiff moved to vacate a prior summary judgment entered in favor of Florida Power and Light Company. The motion to vacate was based upon newly discovered evidence which allegedly could not have been discovered by due diligence in a more timely fashion. The motion to vacate pursuant to Rule of Civil Procedure 1.540(b) was filed almost nine months after the defendant’s summary judgment. The newly discovered evidence alleged in the motion to vacate constituted testimony given by a witness in a prior criminal trial where the plaintiff had been prosecuted for the alleged murder of his wife. Plaintiff asserts that the testimony at his own prior criminal trial was not subject to his own discovery because he did not secure a transcript of that testimony at the time. We conclude that the trial court erred in setting aside the prior summary judgment. Evidence at one’s own criminal trial growing out of an incident forming the basis for a related civil suit cannot, under the circumstances of this case, be considered newly discovered. See Kash N’Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969). The order below is reversed and the cause remanded for further proceedings which shall include reinstatement of the prior summary judgment.

LETTS, C. J., and HERSEY, J., concur.


text:
    Leonard A. VERSLUIS, Appellant, v. Richard B. WIGGINS: Ray Qualmann: Barnett Banks Trust Company, N. A., a corporation, Personal Representative of the Estate of Roy C. Kelley, deceased; individually and as Trustees of the Wiggins-Qualmann-Kelley Trust; and the Wiggins-Qualmann-Kelley Trust, a trust, Appellees.
    No. 80-1941.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Robert J. O’Toole, Fort Lauderdale, for appellant.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Brinkley, McNemey & Morgan, and Marko, Stephany & Lyons, Fort Lauderdale, for appellees.
   BERANEK, Judge.

Plaintiff appeals a final judgment denying his complaint which sought recision of an alleged oral contract. The complaint generally alleged that plaintiff transferred a partially completed condominium project including real estate to a trust composed of three individuals in return for promises that he would be held personally harmless from debts arising from the project and be repaid his investment. Plaintiff sued Mr. Wiggins, Mr. Qualmann and the personal representative of the estate of Mr. Kelley who died in 1975. Plaintiff alleged oral promises and breaches by the three defendants. The trial court found against plaintiff on numerous substantive grounds and chose to reject and disbelieve the evidence in support of certain key allegations. Conflicting evidence was presented and no error has been made to appear in this regard.

We affirm and in doing so comment only upon the appellant’s arguments as to an evidentiary point relating to the dead-man statute.

The trial court applied Section 90.05, Florida Statutes (1975), in excluding evidence as to conversations between plaintiff and Mr. Kelley who died before suit was filed. Plaintiff asserts Taylor v. Cory, 53 So.2d 820 (Fla.1951) and Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792 (1932) require a different ruling. Plaintiff basically argues that where any two parties to an oral contract remain alive that the dead-man statute is inapplicable to any conversations with a deceased party to that contract. We disagree. Here the trial court only precluded the conversations to which the plaintiff and the decedent were the sole participants. Plaintiff was allowed to present evidence as to his conversations with the decedent so long as one other person was shown to be present during these conversations. We view the above-cited Supreme Court opinions as consistent with the trial court’s ruling which excluded only the evidence as to conversations between plaintiff and the decedent alone. Also see Rosenberg v. Boston Corporation, 310 So.2d 40 (Fla. 4th DCA 1975). The trial court correctly excluded the evidence in question and no other error has been made to appear. The final judgment below is thus affirmed.

AFFIRM.

MOORE and GLICKSTEIN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    William Fred BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 79-1230.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Kenneth Matus was shot and killed while visiting in the house of Eugene Hicks. Appellant and Marcel Cardenas were indicted for his murder and for robbery of two handguns belonging to Mr. Hicks. In separate trials Cardenas was acquitted and appellant was convicted of second degree murder and robbery. He was sentenced to two concurrent thirty year terms of imprisonment, which were subsequently reduced to concurrent twenty year terms. We affirm.

Hicks testified that between 6:30 and 7:00 P.M. on the day in question the front doorbell rang. He peered through a window and saw appellant and Cardenas outside. When Hicks opened the door appellant burst into the room with a gun drawn and put the gun to Hicks’ head. When Matus entered the room Cardenas fired a shot at him, which missed, and ordered him to lay on the floor. Hicks told the intruders there was $500 in the kitchen after Cardenas asked for large sums of money, but Cardenas ignored the $500, ransacked the house and returned with two of Hicks’ handguns, a .38 Colt Special and a Cobra. Cardenas gave the Cobra to appellant and kept the Colt. Cardenas again demanded money and then fired two shots into the floor and one into the head of Matus.

It was one of the defense theories that Hicks, not appellant, shot the victim. To that end defense counsel brought out that Hicks was a convicted drug smuggler and that Matus was killed with the Hicks handgun. On cross-examination of Hicks, counsel asked whether Cardenas had told Hicks that Matus was a confidential informer. The question was objected to as being hearsay and sustained on that ground. Appellant’s first point on appeal is that the question did not call for hearsay and that its rejection was harmful error. Although appellant argued before the trial court that the response sought would be evidence of the witness’ state of mind and accordingly not hearsay, he did not make a proffer to show that the witness in fact did believe that Matus was a confidential informer. Absent such proffer, we cannot consider whether the alleged error would require a reversal. Whitted v. State, 362 So.2d 668, 672 (Fla.1978); Gaines v. State, 244 So.2d 478 (Fla. 4th DCA 1970).

We next consider the contention by appellant that it was double jeopardy to convict him of second degree murder and robbery. He relies on State v. Pinder, 375 So.2d 836 (Fla.1979), which held that if an underlying felony is indispensable to a murder conviction, a defendant cannot be convicted of both felony murder and the underlying felony. The Florida Supreme Court, however, has receded from Pinder insofar as double jeopardy does not bar conviction of the underlying felony in addition to conviction of felony murder. State v. Hegstrom, 401 So.2d 1343 (Fla.1981). Further, Hegstrom held that although the conviction may stand, the imposition of a sentence for the underlying felony is impermissible under Section 775.021(4), Florida Statutes (1979) if the murder conviction can only be sustained on the basis of felony murder.

The indictment in Count II sub judice charged appellant with premeditated murder. As recited in the verdict the jury found appellant “guilty of murder in the second degree, a lesser included offense of Count II — murder in the first degree, as set forth in the indictment.” Since the basis for the murder conviction was independent of the conviction for robbery, it was not error to sentence appellant for both crimes.

Appellant has pointed out that the corrected sentence erroneously reflects conviction of first degree murder. We must remand for correction of the “corrected” sentence. As appellant noted in his brief, he need not be present for the correction.

We consider appellant’s other point to be without merit.

AFFIRMED and REMANDED.

ANSTEAD and MOORE, JJ., concur.


text:
    Bruce McMILLIAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1888.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The judgment of the trial court is affirmed except that the portion of the judgment assessing costs against the appellant is hereby vacated.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Johnnie Alonzo SHAW, Jr., Appellee.
    No. 81-191.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Peter D. Aiken, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981) and remanded for further proceedings.

REVERSED and REMANDED.

MOORE, BERANEK and HERSEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Benjamin H. ROBIDOUX, Appellant, v. STATE of Florida, Appellee.
    No. 80-2074.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Prior to trial appellant took the discovery deposition of the victim of the crime with which appellant was charged. At trial the court admitted into evidence over appellant’s objection, the victim’s deposition because the victim was then deceased.

Appellant raises several points on appeal including the propriety of the admission of said deposition. Although none of the other points has merit we hold the admission of the victim’s discovery deposition was reversible error. State v. Basiliere, 353 So.2d 820 (Fla.1977); State v. James, 402 So.2d 1169 (Fla. 1981).

Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded for a new trial.

ANSTEAD and HURLEY, JJ., concur.


text:
    Ralph F. PANTALEO, Appellant, Cross-Appellee, v. Alexandra L. PANTALEO, Appellee, Cross-Appellant.
    No. 81-126.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Hal H. McCaghren of McCaghren Law Offices, West Palm Beach, for appellant, cross-appellee.
    Douglas Rawls Girvin, Jupiter, for appel-lee, cross-appellant.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) and Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

AFFIRMED.

MOORE, BERANEK and HERSEY, JJ., concur.


text:
    Kenneth SCHROEDER, Appellant, v. STATE of Florida, Appellee.
    No. 81-147.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Southard v. State, 363 So.2d 178 (Fla.4th DCA 1978).

MOORE, BERANEK and GLICKSTEIN, JJ., concur.


text:
    Michael TUFTS, Appellant, v. STATE of Florida, Appellee.
    No. 80-2043.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Jeffrey M. Harris, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction for direct criminal contempt is reversed upon the authority of Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965) and Pendley v. State, 392 So.2d 321 (Fla. 1st DCA 1978), and the cause is remanded for further proceedings.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author: HERSEY, Judge. ANSTEAD, Judge,

text:
    STEPHEN BODZO REALTY, INC., Appellant, v. WILLITS INTERNATIONAL CORP., Licron Corp. of New York, John F. Willits and Richard Siemens, Appellees.
    No. 80-1470.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.

      Thompson & Gesch, and Larry Klein, West Palm Beach, for appellant.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P.A., and Edna L. Caruso, West Palm Beach, for appellee-Siemens.
   HERSEY, Judge.

This was an action brought by Stephen Bodzo Realty, Inc. to recover a fee for consulting services rendered to Licron Corporation, its president, Richard Siemens, Willits International Corporation, and its president, John Willits, all of whom are said to be jointly or jointly and severally liable on a contract to pay appellant the sum of $342,000.00. Various counterclaims were filed. The litigation proceeded in straightforward fashion until appellant entered into a settlement agreement with appellees, Wil-lits International Corporation and John Wil-lits, for a portion of the total amount due. In exchange for $70,000 and an agreement for continued cooperation in the litigation, appellant gave assurances calculated to hold these appellees harmless from further expense related to this cause of action. The difficulty is that appellees Licron and Siemens take the position that the written settlement agreement constitutes a general release bringing into play the time-honored principle that release of one joint or joint and several obligor constitutes a release of all, so that these appellees are no longer obligated to appellant. Bodzo, on the other hand, interprets the settlement agreement as a covenant not to sue which has the effect of preserving its rights against those joint or joint and several obligors not specifically protected by the covenant.

The trial court entered a summary judgment determining that Licron and Siemens were initially liable on the consulting services contract, reserving for trial the issue of the effect of the settlement agreement. Trial resulted in a judgment adverse to appellant on the grounds that the settlement agreement constituted a release, the effect of which was to release all of the joint or joint and several obligors, including, of necessity, Licron and Siemens.

Neither party on appeal seriously questions the proposition that under Florida law a release of one joint or joint and several obligor constitutes a release of all of the joint or joint and several obligors. This rule was cited with approval as one “adhered to by the great majority of the courts, ...” in Feiner’s Organization, Inc. v. Caffina, 77 So.2d 852, 853 (Fla.1955), The rule was followed and applied by this Court in Flowers v. Miskoff, 233 So.2d 201 (Fla.4th DCA 1970).

A different result follows from use of a covenant not to sue. The distinction between a release and a covenant not to sue is explained in Atlantic Coast Line Railroad Co. v. Boone, 85 So.2d 834 (Fla.1956) at page 843:

A release is an outright cancellation or discharge of the entire obligation as to one or all of the alleged joint wrongdoers. A covenant not to sue recognizes that the obligation or liability continues but the injured party agrees not to assert any rights grounded thereon against a particular covenantee.

This definition suggests a simple test for determining whether a particular instrument is a release or a covenant not to sue. If the entire obligation is discharged then the document is a release and all of the joint or joint and several obligors are discharged. If the obligation continues with merely an agreement not to proceed against one party then it is a covenant not to sue and the obligors are not discharged. But this test is simpler to state than to apply. We therefore analyze further.

If the instrument under scrutiny, like most contracts, is susceptible of construction by a court where an ambiguity makes the intention of the parties not only relevant but also admissible, it is ordinarily permissible to look behind the structured phrases of the formal document in an attempt to determine what the parties would have said had they foreseen the occurrence which has occasioned litigation. However, such an effort would be futile since in Florida the release of one joint and several obli-gor releases all other joint and several obli-gors even though the release expressly states that it is not the intention of the obligee to release any other joint and several obligor and expressly reserves the right of the obligee to sue any and all other joint and several obligors. Penza v. Neekles, 344 So.2d 1282 (Fla.1977). The Penza court apparently relied on the earlier case of Louisville & N. R. Co. v. Allen, 67 Fla. 257, 65 So. 8 (1914) which involved joint tortfeasors rather than joint contract obligors. This creates a curious anomaly because this rule as to joint tortfeasors has been expressly changed by statute. § 768.041, Fla.Stat. (1979).

It had previously been assumed that a release which contained a reservation of rights should be construed as a covenant not to sue. See, e. g., Glidden Company v. Zuckerman, 245 So.2d 639 (Fla.3d DCA 1971). This had long been the rule at common law. See Matheson v. O’Kane, 211 Mass. 91, 97 N.E. 638 (1912) and cases there cited. Further, such a rule is the cornerstone upon which Professor Corbin, in his monumental work on contracts, constructs his theory of the distinction between the two legal concepts of “release” and “covenant not to sue.” At the very least Corbin was a strong protagonist for the view opposite to that adopted in the Florida cases. Corbin’s criticism of the futile efforts that have been made by the courts to shed light on this shadowy area is worth repeating here, if only to emphasize that the questions involved, while not novel, have nonetheless proved perplexing. After pointing out that it took centuries for the courts to finally give recognition to a reservation of rights in a release by relabelling the instrument a covenant not to use, in order to carry out the clear intention of the parties to the instrument, Professor Corbin concludes:

A retrospective survey of the many long opinions, in cases of both contract and tort, in which a release with reservation has been held to be a covenant not to sue, and in which also this imaginary “covenant” has been refused its normal effect as a discharge because otherwise the “reservation” would be made ineffective contrary to the obligee’s intention, creates the impression of legalistic verbiage gone mad. How much simpler to hold directly that a release effective as to one obligor does not release the others if the intention not to release them is clear and full satisfaction has not been received! What a vast amount of litigation, some of it still going on, would have been avoided! What price justice!
Many judges have indeed been in full sympathy with the above, without feeling able to clear away the rubbish. In various states the simpler rule has been enacted by statute. In the absence of statute, there are cases holding that other limiting expressions may have the same effect as a “reservation of rights.” In a few cases courts have suggested that a “release” can be “reformed” on the theory that a “reservations of rights” was omitted by mistake.
In some American cases the court has refused to give effect to an express “reservation of rights” in a document that is in plain terms a “release” of the one obligor. These courts, being rather literal-minded and unwilling to make conscious use of fiction, hold that a release is a “release” and is not turned into a “covenant not to sue” one obligor by the fact that there is a “reservation of rights” against others. In so holding the court is strictly logical; but it is also doing injustice, in conflict with long existing common law. (footnotes omitted) 4 Corbin, Contracts § 933.

Florida is in this latter category, despite dicta in Glidden Company v. Zuckerman, supra at 641, to the contrary:

The theory upon which a reservation of rights avoids the release of other comakers is that it is construed to be a covenant not to sue rather than a release. The attempted reservation of rights in the ease at bar falls short of meeting the necessary prerequisites to prevent the release of the defendants as comakers since it refers only to persons who are secondarily liable, (footnote omitted).

Penza v. Neckles, supra, clearly states that a release is a release and may not be converted to a covenant not to sue, even by an express reservation of rights.

We thus conclude that the “form” of the document may be controlling under Florida law, and therefore form may be dispositive of the present case. The specific rule which has evolved states that a release with reservation of rights does not constitute a covenant not to sue. The necessary inference is that a covenant not to sue assumes some other form, presumably a form which distinguishes it from all other instruments and contains no words of release or discharge or satisfaction. Before attempting to determine whether the form of the instrument under consideration may mandate a specific result, we briefly consider the problem from a slightly different perspective.

The interplay of two somewhat related principles appear to have generated the rule that the release of one obligor constitutes a release of all joint or joint and several obligors. First, regardless of the number of joint or several obligors, there is only the one, single obligation and its discharge or satisfaction, no matter what the form of the instrument evidencing such satisfaction or discharge, leaves nothing to be assigned or assumed, or indeed enforced in any way against any one. Second, if one of many joint and several obligors satisfies the entire obligation (or any portion greater than the amount for which he is liable as between or among his co-obligors) he is entitled to contribution from them and he may then proceed by subrogation to enforce the obligation against his co-obligors to the extent of their share of the liability as established by agreement, custom or law. It follows that if the obligation has been extinguished by operation of the first principle, then there is nothing left upon which the second principle, subrogation, can act. Since the obligee extinguished the obligation, defeating the subrogation rights of the joint and several obligors, he was not thereafter permitted to proceed against them. This rule, once created, was applied even where no actual right of contribution existed. All this suggests another seemingly simple test: if the obligee does not by his actions destroy the obligation then the other joint and several co-obligors ought not be released by reason of settlement with only one obligor for less than the full amount of the obligation. This brings us full circle to the instrument now before this Court for consideration.

It is undisputed that none of the parties to the settlement agreement intended the obligation to be discharged. There was a clear reservation of appellant’s rights against appellees. The document in fact contemplated that Willits might have to make contribution in some amount to the other joint and several obligors as a result of any future recovery against them by appellant. These factors favor appellant’s construction of the document as a covenant not to sue.

On the other hand, the settlement agreement specifically contemplated that at some point (and possibly before any judgment against or recovery from appellees) the litigation would be dismissed with prejudice as to Willits or that a complete satisfaction and general release would be given to Wil-lits. In either event the obligation would have been extinguished. Additionally, the settlement agreement refers to release, as just indicated, and contains no language covenanting not to sue Willits. To this extent it is more consistent with appellees’ theory. Faced with these same conflicts the trial court held, in pertinent part:

A) The Agreement is not a covenant not to sue. The matter was already in litigation when the Agreement was executed. A covenant not to sue recognizes that the obligation or liability continues.
B) The entire obligation as between Plaintiff and Defendants, WILLITS and WILLITS INTERNATIONAL was can-celled and discharged by the execution and completed performance of the Agreement. WILLITS and WILLITS INTERNATIONAL were effectively released prior to trial.
C) As joint and several obligors, by reason of the above, Defendants, RICHARD SIEMENS and LICRON CORPORATION OF NEW YORK, have likewise been released.

We do not agree that a matter already in litigation may not, under appropriate circumstances, be subject to a covenant not to sue. However, there is substantial competent evidence in this record to support the factual finding that the agreement had been completely performed by Willits, which, in turn, supports the conclusion reached by the trial court that the entire original obligation had been cancelled and discharged so that Willits was effectively released prior to trial.

We find this to be in accordance with the state of Florida law prior to the 1980 amendment of Chapter 46, supra, however much we may incline to the opposite view.

We therefore affirm.

Because we perceive the possibility of a change in the judicial attitude in the area of commercial transactions (the legislature having expressed its intention that the rule be changed by enacting Section 46.015, Florida Statutes (1980)) and because we consider the issue to be one of great public importance, we again certify the following question in updated form to our Supreme Court:

Does a written release executed prior to June 23, 1980, of one joint and several obligor release all other joint and several obligors on the same obligation when the release expressly states that it is not the intention of the obligee to release any other joint and several obligor and when the release expressly reserves the right in the obligee to sue any and all other joint and several obligors?

AFFIRMED AND QUESTION CERTIFIED.

GLICKSTEIN, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

Although I generally concur with the views expressed in Judge Hersey’s well reasoned majority opinion, I do not agree with the conclusion that the document in question constituted an absolute release thereby effecting a complete discharge of all the obligors for the fees due the appellant for consulting services. The document could not itself have been a release since it specifically anticipated the possible execution of such a release in the future subsequent to the completion of any litigation between the appellant and the other obligors, the appellees here. The agreement also anticipated that Willits might be held liable to the other obligors for more than the $70,-000.00 Willits agreed to pay to the appellant, and the agreement specifically provided that appellant would indemnify Willits should he be held liable to indemnify the other obligors for more than the $70,000.00. While the agreement does not neatly fit into the traditional form of a covenant not to sue, it is much more akin to such a covenant, as that term was interpreted by the Florida Supreme Court in Martin v. Burney, 160 Fla. 183, 34 So.2d 36 (1948), than a release. In Martin v. Burney there was a settlement agreement executed by the claimant with one of several defendants followed by a voluntary dismissal with prejudice but no actual release. A similar state of affairs is presented here although no dismissal with prejudice has been entered.

Under the law prevailing at the time the document in question was executed, a release executed in favor of one obligor operated to discharge the other obligors even when the release contained an express provision to the contrary. Penza v. Neckles, 344 So.2d 1282 (Fla.1977). However, so long as no release has actually been executed, and the rights, if any of the co-obli-gors to seek contribution from their fellow obligors are left unimpaired, I think the agreement involved herein should be construed liberally to effect the intention of the parties and to avoid the harsh result which has now occurred. Under our holding obligors who are admittedly liable to the appellant have been freed from any obligation to pay because the appellant has agreed with a co-obligor that under no circumstances, even if the appellant has to accept less than full payment on the obligation, shall the co-obligor have to pay more than $70,000.00. Unless we are compelled to reach this result we should not do so, especially since the appellees have been free to seek contribution from Willits and his company.

The legislature has now acted to avoid such harsh results by enacting Section 46.-015, Florida Statutes (1980) which provides that a release of one joint obligor shall not affect the liability of another joint obligor. This comes too late to help the appellant, although in my view such legislative help is not necessary for the success of the appellant’s claim here.


text:
    Josh TERRELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-298.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Richard L. Jorandby, Public Defender, and John May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction is affirmed upon the authority of State v. Iglesias, 374 So.2d 1060 (Fla.3d DCA 1979).

DOWNEY, ANSTEAD, and HURLEY, JJ., concur.


text:
    Roger ROBINSON, by and through his mother and next friend, Josephine Cobb, and Josephine Cobb, Appellants, v. BROWARD COUNTY SCHOOL BOARD, et al., Appellees.
    No. 80-1870.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    James F. Johnson, Jr., of James F. Johnson, Jr., P.A., Fort Lauderdale, for appellants.

      Charles L. Curtis of Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauder-dale, for appellee, Arcadia Air Products, Co.
   BERANEK, Judge.

Plaintiff appeals from an adverse final summary judgment in a diving board accident case. Plaintiff was injured when he dove from a three meter diving board and struck his head on the bottom of a pool. Suit was brought against various defendants including appellee, Arcadia Air Products Company, the manufacturer and supplier of the diving board in question.

The complaint alleges numerous theories of liability, but it appears that the primary contentions by plaintiff are that the board manufacturer failed to give an adequate warning regarding use of the board when it was supplied to the City of Fort Lauderdale and installed at a city pool. We conclude that issues of fact exist which preclude entry of summary judgment. Initially, the pleadings and discovery present an obvious factual issue regarding precisely what warning was given and whether or not the City of Fort Lauderdale relied upon the warning. The appellee urges that the City’s reliance upon any written warning was negated by the City’s independent knowledge of danger regarding the board. This contention, along with issues of proximate cause, also present issues of fact which were inappropriately disposed of on motion for summary judgment. We, therefore, reverse and remand for further proceedings in accordance with the established principles that factual issues preclude the entry of summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED AND REMANDED.

OWEN, WILLIAM C., Jr., Retired, and GREEN, OLIVER L., Jr., Associate Judges, concur.


text:
    Aloysia WOOD and Daniel Wood, Appellants, v. WALT DISNEY WORLD CO., d/b/a Disney World, Insurance Company of North America, a Pennsylvania Corporation, Rouse Brake & Wheel Inc., and Merlin, Inc., a Florida Corporation, and Hartford Accident and Indemnity Co., a Connecticut Corporation, Appellees.
    No. 79-101.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.

      Simons & Schlesinger, P. A., Fort Laud-erdale, and Walter H. Beckham, Jr. and Joel D. Eaton of Podhurst, Orseck & Parks, P. A., Miami, for appellants.
    John H. Ward and John L. O’Donnell, Jr. of DeWolf, Ward, Morris, Wohlust, Jontz & O’Donnell, Orlando, for appellee, Walt Disney World Co.
    Psyzka, Kessler & Adams, Fort Lauder-dale, Bonnie Lee Daniels, Miami, and Larry Klein, West Palm Beach, for appellees, Rouse Brake & Wheel, Inc., Merlin, Inc., and Hartford Acc. and Indem. Co.
   ON MOTION FOR REVIEW OF FINAL COST JUDGMENT

PER CURIAM.

Appellees, Walt Disney World Co. and Insurance Company of North America, pursuant to Fla.R.App.P. 9.400(c), seek review of a cost judgment against them in the sum of $7,490.82, and argue that the trial court erred in awarding appellants the costs of a copy of the transcript for use by appellants and a copy for use by appellees Rouse, Brake & Wheel, Inc., Merlin, Inc., and Hartford Accident and Indemnity Co. Appellants concede that the trial court erred in awarding the cost of the latter copy but contend the cost of the appellant’s copy was properly assessed. We agree.

At the time we decided Akers v. Palm Beach Newspaper, Inc., 373 So.2d 926, 929 (Fla. 4th DCA 1979) Fla.R.App.P. 9.200(b)(1) provided in part:

Costs of transcription shall be borne initially by the designating party, subject to appropriate taxation of costs as prescribed by Rule 9.400.

We said as to the above sentence:

[W]e conclude that ‘transcription’ as used in Rule 9.200(b)(1) means not only the original transcript but also includes sufficient copies for appellant and appellee.

As of January 1, 1981, the above quoted portion of Rule 9.200(b)(1) was amended to read:

Costs of the original and all copies of the transcript of proceedings shall be borne initially by the designating party, subject to appropriate taxation of costs as prescribed by Rule 9.400.

While we believe it appropriate to apply the rule as it existed when the notice of appeal was filed, the result would be the same under either version of the rule. The designating party is entitled to order a copy of the transcript for his use on appeal; and if he prevails, he is entitled to have his copy assessed as a cost against his opponent.

Accordingly, as to the sum of $1,388.25, being the cost of the copy of the transcript furnished by appellants to appel-lees, Rouse Brake & Wheel, Inc., Merlin, Inc. and Hartford Accident and Indemnity Co., we grant the motion for review and vacate that portion of the cost judgment. The balance of the motion is denied.

GRANTED IN PART; DENIED IN PART.

MOORE, GLICKSTEIN and HURLEY, JJ., concur.

      . On appeal, the final judgment for appellees, Rouse Brake & Wheel, Inc., Merlin, Inc. and Hartford Accident and Indemnity Co. was affirmed.


author: JOANOS, Judge.

text:
    PROGRESSIVE INVESTORS ASSOCIATION, INC., Appellant, v. Josephus J. SHINGLES, Appellee.
    No. XX-419.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1981.

      M. Terry McNab, Tallahassee, for appellant.
    M. Howard Williams, and Philip J. Pado-vano, Tallahassee, for appellee.
   JOANOS, Judge.

Progressive Investors Association, Inc. (hereinafter “PIA”) appeals from a final judgment entered in favor of Shingles on a promissory note. PIA was ordered to pay the remaining amounts due plus interest, and if payments were not made by a certain date, foreclosure of Shingles’ lien on the liquor license owned by PIA was to take place. We find that there was sufficient evidence to enable the judge, as trier of fact, to reject each of PIA’s various defenses and counterclaims and affirm his judgment entered in favor of Shingles on the note. We reverse, however, the portion of the order allowing Shingles to operate PIA’s liquor license prior to the foreclosure sale.

Briefly, the facts pertinent to the liquor license foreclosure appear to have been as follows. PIA is the incorporated result of an investment club formed in the early 1970’s. Shingles, a stockholder in PIA, served as president and director of PIA until November 1979. In 1976, PIA obtained a package store beverage license, and with an $8000 loan from Shingles secured by the liquor license, constructed a building and began to operate a liquor store. For about a year, PIA operated the liquor store through several of its officers and stockholders. The store was not profitable, however, and beginning August of 1977, PIA did not meet its monthly payments on the note to Shingles. Shingles agreed to operate the store as of October 1977, and the evidence supports the conclusion that, at least for the next two years, Shingles’ management of the store was under the authority of PIA. In November of 1979 (about ten months after Shingles notified the other shareholders of his demand for payment on the note and his intent to foreclose on the liquor license) PIA voted to remove Shingles as a director and officer. PIA then notified liquor distributors and the bank that Shingles had no authority to bind PIA.

Ultimately, Shingles filed a complaint in Wakulla County to foreclose on the liquor license or to receive payment on the note. PIA sought a declaratory judgment against Shingles on a counterclaim alleging that Shingles no longer had authority to operate under the license. PIA also filed a separate declaratory judgment action on the same grounds in Leon County and both the Department of Business Regulation and PIA were named as defendants. In the Leon County action, which was consolidated with Shingles’ action in Wakulla County, PIA alleged that it had notified the Department of Business Regulation of the situation and had requested the Department to escrow the license pending sale. According to the allegations, the Department responded that it believed that a mortgagee who has filed a foreclosure action on a liquor license has the equitable right to operate under the license. The record does not reflect an answer filed by the Department and the Department did not respond to this appeal. The trial court summarily denied all relief under PIA’s claim without specifically addressing the question presented for summary judgment, but Shingles was allowed to continue operating under the license until foreclosure. We agree with PIA that Shingles did not have the authority to use PIA’s liquor license prior to foreclosure.

The statutory provision dealing with a mortgagee’s interest in a liquor license is § 561.65, Florida Statutes (1979). Under subsection (2), if a person holding a lien on a liquor license purchases the license at a foreclosure sale “he shall have the right to operate under said license, if otherwise lawfully qualified and authorized by the division [Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation] to do so . .. . ” Impliedly, a lienholder does not have the right to operate under the license prior to its purchase of the license. Even after foreclosure, the lienholder must obtain authorization from the division.

In the trial judge’s order, Shingles was given the right to continue managing the liquor store from the date of the order until the foreclosure sale, even though PIA was still the owner of the liquor license during this period of time. By allowing Shingles to operate under the license without PIA’s authority and control, the trial judge circumvented the requirement that the operator of a liquor license must meet certain statutory qualifications and be approved by the division. In addition, PIA remained the “licensee” for purposes of the statute and potentially subject to revocation of its license or civil penalty if Shingles misused the privilege. See § 561.29, Florida Statutes (1979). In short, we can find no support for the proposition that the mortgagee of a liquor license has any equitable right to operate under the license while title to the license remains in the hands of the mortgagor, particularly where the mortgagor has refused to consent to the arrangement.

We, therefore, AFFIRM the Final Judgment appealed from in all particulars except we REVERSE the portion of the judgment allowing appellee to operate the liquor license prior to the foreclosure sale.

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

      . In defense of the demand for payment on the note and/or foreclosure, PIA responded with equitable affirmative defenses and counterclaimed for a constructive trust, an accounting, and a declaratory judgment relating to Shingles’ use of the liquor license. The primary dispute concerned oral agreements between PIA and Shingles for Shingles’ management of PIA’s liquor store and for the use of land owned by Shingles’ mother. Suffice it to say that in the contradictory evidence of undocumented business dealings, there was sufficient evidence for the trial court to deny PIA’s challenge to the note.


author: PER CURIAM. WENTWORTH, Judge,

text:
    CITY OF WEST PALM BEACH, Appellant, v. Ben CHISOLM, Appellee.
    No. YY-244.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1981.
    William P. Doney, Asst. City Atty., West Palm Beach, for appellant.
    Thomas A. Hoadley, of Hoadley & Gavi-gan, P. A., West Palm Beach, for appellee.
   PER CURIAM.

In this workers’ compensation case, the employer appeals a modification order entered by the deputy commissioner which ordered employer to pay for an orthopedic evaluation of claimant and which ordered the employer to pay certain medical bills related to claimant’s hemorrhoidectomy performed June 19, 1980, based upon the deputy’s finding that claimant had suffered a change in condition. We reverse.

Except as to the extent that modification is permitted by Section 440.28, Florida Statutes (1978), deputies’ orders are governed by the principles of res judicata or estoppel. Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960). It is well-settled that the modification procedures set forth in Section 440.28 were not intended as affording a claimant an opportunity to reliti-gate an identical issue which had been previously determined, based solely upon an increase in the quantum and probative force of evidence in support of a conclusion contrary to that reached by prior determination. Hall v. Seaboard Maritime Corporation, 104 So.2d 384 (Fla. 1st DCA 1958). Thus, the introduction of cumulative evidence which does nothing more than add to or controvert evidence already taken is insufficient to support a modification. Sonny Boy’s Fruit Company v. Compton, 46 So.2d 17 (Fla.1950).

A review of the record herein reveals that claimant failed to meet his burden to establish proper grounds for modification of the prior order. Although the evidence reveals that claimant’s hemorrhoid condition had worsened since the entry of the previous order, the record also reveals that the issue of the compensability of claimant’s present hemorrhoid condition was litigated in the prior hearings and was determined adversely to the claimant. Claimant may not now attempt to relitigate the issue of causal connection by the introduction of testimony which is merely more favorable to claimant than that initially presented and which should have been presented initially.

Similarly, we find that the requirement of payment by the employer for an orthopedic evaluation of claimant was erroneous. It appears that the compensability of claimant’s back condition was determined adversely to claimant by the deputy’s prior orders. The testimony presented at the modification proceeding was merely cumulative, and for the reasons stated above, did not establish grounds for modification of the prior order.

Accordingly, the modification order appealed is reversed.

BOOTH and SHAW, JJ., concur.

WENTWORTH, J., concurs and dissents with written opinion.

WENTWORTH, Judge,

concurring and dissenting in part.

The order for orthopedic evaluation should in my opinion be affirmed. The deputy properly found that earlier orders did not show disposition of the claim for back injury, and transcripts of the earlier hearings were not essential to the claim for modification. Under these circumstances the record does not support a res judicata defense. I would conclude that upon the evidence presented the order for further medical evaluation of the alleged back injury was correct.


author: MILLS, Judge. ERVIN, Judge,

text:
    SANFORD NURSING & CONVALESCENT CENTER and R. P. Hewitt & Associates of Florida, Inc., Appellants, v. Wynner LOWERY, Appellee.
    No. ZZ-146.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1981.

      Steven A. Rissman of Cooper & Rissman, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   MILLS, Judge.

The employer/carrier appeal, contending that the deputy erred in finding claimant to be temporarily and totally disabled from 9 March through 17 May 1980. We agree and reverse.

When there is no medical evidence that a claimant is unable to work, claimant must conscientiously seek work to establish temporary total disability and must also show either that his or her work search was successful and that he or she was unable to perform the work or that the work search was unsuccessful due to his or her disability, rather than to unavailability of work. Lehigh Corp., et al. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981).

There is no medical evidence that Lowery was unable to work.

Lowery’s testimony clearly shows that she did not make a conscientious effort to obtain work.

Q. Okay. Now, this job that you just got last Tuesday, you say you haven’t worked since you left the Sanford Home?
A. No.
Q. Okay. Had you looked for work anywhere?
A. Yes.
Q. Where did you look?
A. I went to the unemployment place to get a ... to look for a job and.. . .
Q. You didn’t find one?
A. No.
Q. Do you remember when you went to the unemployment place. . . .
THE COMMISSIONER: Is that the regular State Employment Office, Ms. Lowery?
A. I don’t know the ... I don’t know exactly the date.
MR. DAZE: Okay.
A. What?
THE COMMISSIONER: Did you say you went to the regular State Employment Office?
A. Yes.
THE COMMISSIONER: To get a job? A. Yes.
THE COMMISSIONER: When did you do that?
A. I don’t know the exact date when I went.
THE COMMISSIONER: I mean just approximately, can you relate it to the time of the accident? How many weeks, months after the accident as you can best recall?
A. It might have been a month, I’m not sure.
THE COMMISSIONER: Something around that?
A. Yes.
MR. DAZE: Did you ever try to go back to the Sanford Home? Did you ask to go back to work?
A. No, I didn’t.

She did not attempt to return to work for her employer. Her testimony concerning her work search was non-specific, although responding to leading questions by the Deputy.

Claimant totally failed to adduce testimony whether her job search was unsuccessful because of her disability or because a job was unavailable.

We reverse because there is no competent substantial evidence supporting the Deputy’s award of temporary total disability benefits from 9 March through 17 May 1980.

LARRY G. SMITH, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I respectfully dissent. The majority now reverses the d.c.’s order directing the e/c to pay claimant TTD benefits for a period of time slightly more than two months. I agree with appellant that the medical testimony alone was insufficient to support an award of TTD. Medical testimony, however, is not the only criterion in determining whether a work search is adequate. The rule is that in the absence of medical testimony showing a claimant’s inability to work, TTD benefits may yet be recovered if the claimant conducts a diligent work search revealing his or her inability to work. See Commercial Carrier Corp. v. Bennett, 396 So.2d 847 (Fla. 1st DCA 1981), and Stewart-Decatur Security v. Kropp, 396 So.2d 256 (Fla. 1st DCA 1979). It is true that the claimant in the case before us did not begin her work search by a return to her former place of employment, but I am unaware of any decision overturning a deputy’s finding of an adequate work search simply because the record on review revealed that the employee did not first return to work for his or her employer. Cf. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981), in which we held the evidence relating to a search was insufficient because the employee made no effort to return to any type of work, including that with her former employer.

I see no reason why, under the circumstances, an award limiting TTD to only nine weeks’ duration should be reversed since claimant testified that within a month following her injury, she applied for work at the local employment office, a place which presumptively should be capable of affording claimant with a greater number of employment opportunities than would only one prospective employer.

In my judgment, there is no broad rule which may be applied to any conceivable factual situation in every case. Each case must be judged on its own record. Some of the factors to be considered in determining the adequacy of a work search, when there is no supporting medical testimony, would include the length of the TTD award, and whether or not there were circumstances unrelated to a claimant’s purported physical limitations which resulted in his inability to find work or to hold a job. Given such an analysis, a TTD award of two years’ duration, if supported by evidence showing only one or two inquiries with potential employers, would no doubt be determined excessive, while an award more restricted in length might be sustained.

Although I agree that appellants may well be correct in their assertion that the evidence in the instant case would probably not satisfy standards that have been developed in determining the adequacy of a work search regarding permanent disability, see Spencer v. Chai Convalescent Home, Inc., IRC Order 2-2768 (April 21, 1975); Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975); Carol Nursing Home v. Moore, IRC Order 2-3279 (November 21, 1977); City of Miami v. Watkins, IRC Order 2-3010 (July 29, 1976); Cook v. Hamilton County Board of County Commissioners, IRC Order 2-2984 (June 16, 1976), nevertheless, such rigorous standards are not in my judgment applicable to an issue involving the adequacy of a TTD work search. The purpose of a work search is not the same in all cases: the object of the permanent disability search is to establish a permanent loss of wage earning capacity; whereas the goal of a TTD search is to prove a temporary physical impairment. It therefore logically follows that the requisites of a satisfactory search for purposes of determining TTD are less stringent than its permanent disability counterpart.

Finally, I would not disturb the deputy’s implicit factual finding that the evidence in the instant case was credible and sufficient to establish a good faith work search, since such decisions are normally left to the informed discretion of the deputy commissioners. Cf. Pearson v. City of Miami Beach, 399 So.2d 1135 (Fla. 1st DCA 1981).

For the reasons stated, I would allow the deputy’s TTD award to stand.


text:
    Rafael DeARCE, Petitioner, v. STATE of Florida, Respondent.
    No. AB-312.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1981.

      Judith J. Dougherty of Law Offices of John A. Barley, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for respondent.
    Douglas L. Stowell of Stowell & Mang, Tallahassee, for respondent, Donald Gillett.
   PER CURIAM.

Petitioner/defendant seeks review of an order of the trial court which disqualifies his attorney, Ms. Dougherty, from further representing him in this criminal case. We find that the order violates the essential requirements of law, that there will be no adequate remedy on appeal, and grant cer-tiorari.

Petitioner was charged, along with nineteen co-defendants, with possession of more than 2,000 pounds of cannabis and conspiracy to possess more than 2,000 pounds of cannabis. He was arraigned in December, 1980, with trial scheduled for the end of February, 1981. A week before the scheduled trial, petitioner filed a request for the court to determine whether his counsel had a conflict of interest.

A hearing was held where interested persons could raise any conflict of interest objections they might wish to assert. The State and former co-defendants, Hassing and Gillett, who had cooperated with the State and were going to be state witnesses against petitioner, objected to Dougherty being permitted to represent petitioner. They argued that Dougherty should be disqualified due to the confidential relationship that existed between Dougherty and three State witnesses: Fahrney, Hassing and Gillett.

The alleged conflict with Fahrney is that Dougherty, while with the public defender’s office, represented Fahrney at the hearing where he plead guilty.

As to Hassing, it was alleged that Hass-ing was represented by attorney Corrigan, who was John Barley’s partner when Hass-ing became his client. Dougherty is now in John Barley’s firm.

The alleged conflict with Gillett is more complex. Gillett stated that he was represented by attorney Haggard, who also represented four other co-defendants. Joe Aloi was employed by Haggard to investigate the case. Aloi was also employed at the public defender’s office when Dougherty was there and has been employed by Dougherty in connection with her representation of petitioner. At the hearing, Gillett moved to disqualify Dougherty, alleging that Aloi had gained confidential information from Haggard, which Haggard gained as a result of his attorney-client relationship with Gillett, and that the information was relayed to Dougherty.

The petitioner testified that he was aware of the various possible conflicts and waived any challenges he might have to claim ineffective assistance of counsel based on these conflicts.

The trial court ruled that although petitioner had effectively waived any right to claim ineffective assistance of counsel based on a conflict of interest, petitioner’s counsel would be disqualified from further representation of petitioner.

Respondents cite to Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979) and Andrews v. Allstate Insurance Co., 366 So.2d 462 (Fla. 4th DCA 1978) to support the trial court’s action. However, neither of these cases address the issue raised by the case before us. Sears, Roebuck & Co. and Andrews each involved a motion to disqualify made by a party, rather than a potential witness, and both were civil cases, rather than criminal. A conflict of interest claim in a civil dispute is resolved essentially by determining whether there was an attorney-client relationship between the moving party and opposing counsel which involved matters related to the pending suit. If there was such a relationship, the attorney is disqualified. In a criminal case, the existence of a conflict of interest is not determinative because the defendant has a constitutionally guaranteed right to counsel of his choice.

In United States v. Armedo-Sarmiento, 524 F.2d 591 (2nd Cir.1975), a case similar to the one before us, the Government moved to disqualify the law firm retained by the defendants on the grounds that the law firm had in previous criminal cases represented three individuals the Government planned to call as witnesses. Two of the witnesses were unwilling to waive their attorney-client privileges as to confidential communications with the law firm that might be used by defense counsel in cross-examining them. The district court entered an order disqualifying the law firm and the circuit court reversed stating:

We are mindful of the factors on which the court below based its decision, including in particular the witnesses’ interests in preserving the confidentiality of their privileged communications, but the district court did not give sufficient weight to the appellants’ rights. Although the right to an attorney of one’s choosing is not unlimited, the Sixth Amendment does give some protection to a criminal defendant’s selection of retained counsel... . Of course, a defense counsel’s conflict of interests may impair his effectiveness in assisting his client, or in confronting witnesses on behalf of his client. The client, however, may waive his Sixth Amendment rights to effective assistance of counsel and to confrontation of witnesses, just as he may knowingly and intelligently waive any constitutional right.

When it appears that defense counsel has a potential conflict of interest due to the receipt of privileged communications from a state’s witness, it is the trial court’s duty to insure that the defendant fully understands the disabilities the conflict places on his defense and the adverse consequences that may result from such representation. See, e. g., U. S. v. Garcia, 517 F.2d 272 (5th Cir.1975); In re Taylor, 567 F.2d 1183 (2nd Cir.1977); U.S. v. Armedo-Sarmiento, supra. However, if the defendant, after being fully informed of the ramifications of his decision, chooses to waive his right to conflict-free counsel, he may do so.

Although we find that the hearing below was sufficient to apprise the petitioner of the nature of the potential conflicts, we do not find that petitioner was sufficiently made aware of the limitations that might be placed on his defense due to those conflicts. Therefore, the trial court order of disqualification is quashed with directions that the defendant be given the opportunity to elect to proceed with his present counsel after being fully informed of the consequences that might result from such representation. Further, if petitioner elects to proceed with his present attorney,

“it is to be understood that the witnesses will be entitled to full protection in preserving the confidentiality of their privileged communications .. . and they may refrain from answering any questions from [defense counsel] which are based on privileged communication. Moreover, the trial judge will, in his conduct of the trial, exert every reasonable effort to prevent inadvertent disclosures of confidential information.” U.S. v. Armedo-Sarmiento at 593.

ROBERT P. SMITH, Jr., C.J., and McCORD and ERVIN, JJ., concur.


text:
    Terry LANE, Appellant, v. STATE of Florida, Appellee.
    No. AB-397.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.
    Carl S. McGinnes, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Lane appeals denial of his motion to correct sentence, arguing that he is entitled to be resentenced pursuant to the Florida Youthful Offender Act, Section 958.011, et seq., Florida Statutes (1979). We agree and reverse.

The trial court ruled that Lane’s conviction of armed robbery precluded his treatment as a youthful offender. At the time of his order, the trial court did not have the benefit of our ruling in Lee v. State, 399 So.2d 1027 (Fla. 1st DCA 1981), in which we held that an armed robbery conviction does not preclude youthful offender treatment. Accordingly, the order is reversed, and the cause is remanded for further proceedings consistent with Lee v. State, supra.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Robert B. PIERCE, Appellant, v. Harry W. REINSTINE, Jr., M.D., Appellee.
    No. ZZ-337.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.
    V. James Facciolo of Searcy & Facciolo, Jacksonville, for appellant.
    James E. Cobb and James P. Wolf of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Harwick v. Harris, 166 So.2d 912 (Fla.3d DCA 1964).

ERVIN, WENTWORTH and JOANOS, JJ., concur.


text:
    Kennedy EBERHARDT, Appellant, v. STATE of Florida, Appellee.
    No. AB-316.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.
    Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Eberhardt appeals from a judgment and sentence for armed burglary on grounds that he was entitled to mandatory youthful offender status pursuant to the Florida Youthful Offender Act, Section 958.011 et seq., Florida Statutes (1979). We agree and reverse.

Appellant was indicted rather than transferred from the juvenile division for prosecution as an adult. At the time of his order, the trial judge did not have the benefit of the Florida Supreme Court decision in State v. Goodson, 403 So.2d 1337, (Fla.1981), in which the court held that an indictment is the equivalent of a transfer to the criminal division of the circuit court for purposes of Section 958.04(1)(a).

On remand, we also direct the trial judge to indicate that the appellant agreed to plead guilty rather than nolo contendere as the present judgment reads.

Reversed and remanded.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Eugene PEGUES, Appellant, v. STATE of Florida, Appellee.
    No. AE-106.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant’s appeal is dismissed without prejudice to Appellant to file a motion for post-conviction relief under Florida Rules of Criminal Procedure 3.850. Milton v. State, 390 So.2d 193 (Fla. 1st DCA 1980); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Frederick B. McKAY, Appellant, v. Robert B. JENKINS and Helen L. Jenkins, and State Farm Fire & Casualty Company, as their subrogee, Appellees.
    No. YY-123.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.

      Frederick B. McKay, pro se.
    Betsy C. Cox of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellees.
   PER CURIAM.

This court earlier reserved for consideration, together with the merits, appel-lee’s Motion to Strike those portions of appellant’s brief referring to appellant’s conviction and sentencing on multiple counts of burglary and grand theft, which appellee asserts are outside the record and impertinent to the issues presented on appeal. We note that the record contains numerous references to burglary, theft, and liability therefor, and that many of these references were introduced by the appellees. Accordingly, the Motion to Strike is denied. Unsupported or irrelevant claims and arguments in the appellant’s brief that go beyond the record will be treated as such.

As to the merits, appellant appeals a final judgment in a civil action for conversion, adjudging that appellees, plaintiffs below, recover from appellant a total of $11,297.67, plus costs. We reverse and remand for new trial.

Plaintiffs alleged that the defendant converted to his own use by theft and burglary the property of plaintiffs. A hearing to set the case for trial was held and the trial was conducted without the defendant appearing or being represented. Between the date of the hearing and the trial, defendant wrote two letters to the court in which he stated that he was then serving a fifty-year sentence at Union Correctional Institution, Raiford, Florida, denied his liability for the claimed damages, stated that he wished to present his defense at trial, and asked for information on the procedure he should follow in order to appear. No action was taken on the letters by the court, and eventually the case proceeded to trial without the presence of appellant; judgment was then entered in appellees’ favor; whereupon appellant filed a notice of appeal, a declaration of indigency, and a request for appointed counsel.

This court first considers appellant’s pro se argument that the judgment was unlawful for two reasons: first, because the judgment arose out of an earlier multi-count conviction for burglary and grand theft for which he had received a sentence, which took into consideration the fact that he was unable to make restitution, and second, because Florida Rule of Criminal Procedure 3.111(b)(2) entitles him to appointed counsel. There is no merit in these assertions. The instant case is a civil suit, separate and independent of any previous criminal convictions. It is not a post-conviction proceeding in the sense of Florida Rule of Criminal Procedure 3.111(b)(2), and there is no possibility of appellant being deprived of liberty as a result of the suit. There is no right to appointed counsel in a civil suit of this type. See, for example, Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972), and In The Interest of D.B. and D.S., 385 So.2d 83, 89 (Fla. 1980). However, we do recognize that a trial judge may, in his discretion, “nonetheless use his historical authority to provide legal assistance[,]” and “[wjhen appointment of counsel is desirable but not constitutionally required, the judge should use all available legal aid services, and when these services are unavailable, he should request private counsel to provide the necessary services.” Id. at 91, 92 respectively.

We turn next to appellant’s argument that the judgment should be reversed because he was denied the right to appear and defend the suit. Appellant here is an involuntary defendant to a civil suit, confined by the state in a correctional institution, who cannot appear in court without the assistance of either the court or of the state authorities supervising his confinement. His situation is significantly different from that of a nonprisoner defendant or even that of a prisoner plaintiff in a civil suit, a prisoner petitioner seeking postcon-viction relief, or a prisoner defendant in a criminal proceeding. We are unpersuaded by appellee’ argument that appellant should be treated as any other defendant in a civil suit or, by analogy, as a prisorier/plain-tiff/petitioner. Appellant cannot appear of his own volition and, obviously, the suit was not initiated by the appellant prisoner as a device to obtain temporary relief from the rigors of prison. Because this appeal can be disposed of on narrower grounds, we choose not to address the broad question of the right of an involuntary prisoner defendant to appear in a civil suit, except to note with approval the approach taken by the court in Baker v. Baker, 403 So.2d 1111 (Fla. 2d DCA, 1981). See also State ex rel. Page v. Hollingsworth, 117 Fla. 288, 157 So. 887 (1934).

In the instant case, we acknowledge that appellant is a pro se defendant to a civil action whose written communications are inartful in the legal sense, and with that allowance, we construe appellant’s two letters to the trial court as a general denial of liability and a motion for relief, namely, a petition for writ of habeas corpus ad testifi-candum, presenting issues which required disposition prior to entry of judgment on the merits.

The judgment is reversed and the case remanded for a new trial following determination of the question of whether appellant shall be permitted to appear or otherwise offer any relevant defenses to the issues framed in appellees’ complaint.

ERVIN, WENTWORTH and JOANOS, JJ., concur.


author: MILLS, Judge.

text:
    BELL RENTALS AND SALES and Travelers Insurance Company, Appellants, v. John HARVEY and Gulf American Fire & Casualty Company, Appellees.
    No. YY-312.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.

      Robert G. Brightman, Orlando, for appellants.
    Thomas R. Mooney of Meyers, Mooney & Adler, P. A.; Robert C. Barrett of Aker-man, Senterfitt & Eidson, Orlando, for ap-pellees.
   MILLS, Judge.

This is the second appearance of this workers’ compensation case here.

Bell and Travelers contend the deputy erred in failing to find that claimant reached maximum medical improvement after his second accident and in ordering them to provide further medical treatment. We disagree and affirm.

In his first order appealed here, Bell, et al. v. Harvey, 387 So.2d 507 (Fla. 1st DCA 1980), the deputy did not rule on maximum medical improvement following the second accident. Bell and Travelers did not urge this as error. They may not do this now. The deputy’s initial order awarded remedial treatment. We affirmed this holding of the deputy. Bell and Travelers did not challenge the deputy’s holding or our opinion. It may not do so now. Brevard Board of County Commissioners v. Caldwell, 379 So.2d 1031 (Fla. 1st DCA 1980).

In the prior Bell case, we held that medical costs are never apportionable between carriers. We recede from that opinion because before and after the prior Bell case we held that medical costs may be apportioned between carriers. This we reaffirm. Rowe and Mitchell v. Rodgers, 378 So.2d 1281 (Fla. 1st DCA 1979); The Seasons from Sarasota v. O’Day, 379 So.2d 1024 (Fla. 1st DCA 1980); and Neff, et al. v. Bretts, et al., 404 So.2d 416 (Fla. 1st DCA 1981).

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, ERVIN, BOOTH, LARRY G. SMITH, SHIVERS, SHAW, WENT-WORTH, JOANOS and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    Luke SMITH, Appellant, v. JAMES PIRTLE CONSTRUCTION CO. and Maryland Casualty Co., Appellees.
    No. XX-202.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.

      Richard A. Sadow of Sadow & Lynne, North Miami, for appellant.
    Charles Desmond Crowley, Fort Lauder-dale, for appellees.
   WENTWORTH, Judge.

Following entry of a final workers’ compensation order in 1978 finding maximum medical improvement, awarding compensation for permanent disability, and denying claim for further medical treatment, claimant filed a motion for further medical examination. At the hearing on the motion claimant’s counsel asserted a right to such examination without presentation of any evidence on need. Claimant appeals the order denying the motion, contending that § 440.13, Florida Statutes, compels reversal because it requires employers to furnish to those who suffer compensable injuries “such .. . care and attendance . . . and for such period, as the nature of the injury . . . may require.” We affirm.

Claimant asserts that, as a consequence of having had a compensable permanent impairment, he has an absolute right to a physician’s examination to determine if further medical care, either palliative or remedial, is necessary. We are referred to no such precedent and, absent any evidence from claimant or otherwise, we conclude the deputy correctly denied the motion. Whether or not an order for medical examination would be a modification of a prior order finding maximum medical improvement and denying medical benefits (cf. Bryant v. Elberta Crate & Box Co., 156 So.2d 844 (Fla.1963), and Acousti Engineering Co. v. Shivers, 391 So.2d 792 (Fla. 1st DCA 1980)), the correctness of the order refusing medical evaluation in this case as in Elberta “must be tested by whether the claimant adequately demonstrated that such ... benefits were reasonably required by the ‘. . . nature of the injury. ... ”’ 156 So.2d at 845.

The order is accordingly affirmed.

ERVIN and JOANOS, JJ., concur.