author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Jackson BRYAN, Respondent.
    No. 58422.
    Supreme Court of Florida.
    March 12, 1981.

      David G. McGunegle, Bar Counsel, and Branch Staff Counsel, Orlando, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    Jackson Bryan, in pro. per.
   PER CURIAM.

The respondent petitions for review of the report of the referee in this disciplinary proceeding brought against him by The Florida Bar. The referee’s findings and recommendations are as follows:

II. Findings of Fact as to Each Item of Misconduct of Which Respondent is Charged
Upon consideration of the pleadings and the evidence before me, pertinent portions of which are commented upon below, I find
As To Count I
Respondent was retained to represent Earl Moye, a nonresident, with respect to his interest in the estate of his sister-in-law which whs administered in Florida. On January 13,1978, before receiving any funds in behalf of his client, Respondent advanced himself, from his trust account, $750 in partial payment of his fee. On January 19, 1978, Respondent received from the estate’s executrix, for his client a diamond ring appraised at $3,800, a jade brooch, other jewelry and silverware. The following day he received $12,124.96 in cash, deposited it in a trust account and paid himself an additional $750. In early January Respondent wrote an attorney representing Mr. Moye in Michigan that their mutual client’s assets from the estate would be forwarded to him shortly. The jewelry and silverware were delivered to Mr. Moye sometime after February 12, 1978, after additional demand upon Respondent. He retained the cash until August 30, 1978— more than three months after the complaint was filed with The Florida Bar and referred to the grievance committee — at which time he forwarded the remainder to his client after having deducted his fee. Stock valued at $6,000 was sent to Mr. Moye by a brokerage firm and never came into Respondent’s hands.
Mr. Moye suffered no economic loss because of Respondent’s misconduct. It is reasonable to assume however that it inflicted inconvenience and anxiety upon him and undermined his confidence in lawyers and the legal profession in general and in Mr. Bryan in particular.
Respondent testified in substance that he did not consciously intend to misappropriate his client’s money or deny him its use, but that there had been a dispute or misunderstanding over the amount of his fee and he delayed remission of the money out of anger and spite and frustration.
As To Count II
A Bar audit of Respondent’s two trust accounts revealed a $750 advance to himself in payment of one half of his fee before receipt of any money or other property for the account of Mr. Moye. He paid himself the remainder upon receipt of his client’s cash legacy on January 20, 1978. Fourteen days later the amounts on deposit in the trust accounts were insufficient to cover Respondent’s liability to Mr. Moye without taking into account any other possible outstanding trust obligations. Similar deficiencies continued in these accounts through parts of March, April and July, 1978. Withdrawals from the trust accounts consistently exceeded deposits. During the audit period Respondent deposited $102,300 in trust and withdrew $133,000. The resulting deficit of $30,700 was eliminated by Respondent not withdrawing earned fees. He commingled personal money with trust funds and paid personal and office expenses from trust accounts.
Respondent kept index cards and clients’ ledger cards for his trust accounts but did not periodically reconcile them nor did he reconcile differences between checkbook balances and bank statements.
Upon recommendation of the Bar auditor, Respondent employed a certified public accountant to prepare reliable trust accounting records and co-sign checks drawn upon the trust accounts. However, the accountant withdrew from that employment and the checks are being cosigned by another attorney upon recommendation of the circuit grievance committee.
When paying annual bar dues for fiscal year 1978-1979, Respondent did not sign his annual certificate on the dues statement attesting his familiarity with the rules governing trust accounts and his substantial compliance with their minimum requirements detailed in Fla.Bar In-tegr. Rule, Article XI, Rule 11.02(4)(c) and further defined by Section 5 of the By-laws under the Integration Rule.
Respondent attributes his problems with the trust accounts to his own carelessness, inattention and lack of skill in the art of bookkeeping and faults himself for entrusting that responsibility to employees equally artless and unskilled. He gives assurance that the accounts are now in compliance with bar standards and that they will remain in that condition.
III. Recommendations as to Whether or not Respondent Should be Found Guilty
As to each count of the Complaint I make the following recommendations as to guilt or innocence.
As To Count I
I recommend that Respondent be found guilty and specifically that he violated Article XI, Disciplinary Rules 11.02(3)(a) and (4) and 9-102(B)(3) and (4), Code of Professional Responsibility in that he:
A) Engaged in conduct involving moral turpitude, dishonesty, fraud, deceit and misrepresentation.
B) Failed to maintain complete records of all funds and other properties of a client coming into his possession and failed to render appropriate accounts to his client regarding them.
C) Failed to pay or deliver, upon demand, to a client as requested by the client funds and other property in his possession which the client was entitled to receive.
D) Commingled personal money with trust funds and drew upon trust accounts for the payment of personal bills and expenses of his law practice.
As To Count II
I recommend that Respondent be found guilty of violating Article XI, Rules 11.-02(3)(a) and 4(c) of the Integration Rule and Disciplinary Rules 1-102(A)(4) and 9-102(B)(3) in that he:
A) Failed to maintain complete records of all funds and other properties of a client coming into his possession and failed to render appropriate accounts to his client regarding them.
B) Failed to maintain prescribed minimum trust accounting records and failed to follow minimum trust accounting procedures.
C) Engaged in conduct involving moral turpitude, dishonesty, fraud, deceit and misrepresentation.
D) Failed to pay or deliver, upon demand, to a client funds and other personal property in his possession which the client was entitled to receive.

IV. Recommendations as to Disciplinary Measures to be Applied

I recommend that Respondent be suspended from the practice of law for six months to be readmitted upon proof of rehabilitation and payment of $1,066.95 costs.
Respondent is 56 years old, a graduate of the University of Florida and the Harvard Law School. He was admitted to the Florida Bar in 1951 and has since served as an administrative assistant to a Florida congressman; has occupied positions within the Bar; has no prior disciplinary record; is in poor health, suffering from Parkinson’s disease, and has a wife and four children to support.
The Respondent is remorseful, contrite and embarrassed by his conduct. He appeared before the grievance committee, waived his right to defend and to have counsel and answered fully all questions asked of him by the committee and Bar counsel. He fully cooperated with the Bar auditor and made all his records available to him and has voluntarily agreed to a supervisory co-signing program for handling trust funds. He waived his right to a hearing before the referee and his right to counsel and fully answered all questions asked of him and states that he is ready to accept whatever penalty may be ultimately applied.
Respondent has fully confessed the wrongs charged to him pointing out that his misconduct has caused no economic loss to anyone. He suggests that his problems coincided approximately with the discovery that he had Parkinson’s disease and with the collapse of a number of investments and resulting threats of foreclosure. He describes himself as having gone “through a sort of temporary insanity period.”
The grievance committee’s recommendations of a public reprimand followed by a period of probation largely ignores a sizeable body of case law developed by our Supreme Court in a lengthy series of similar cases and is unreasonably lenient. On the other hand, the Bar’s recommendation of a two year suspension from the practice of law seems, under a fair evaluation of all relevant facts and circumstances, to be unduly harsh and excessively punitive.
This referee understands and appreciates the seriousness of the misprisions charged to the Respondent and is mindful that such misconduct is fraught with grave consequences not only to the of-: fending lawyer and his client but to the public in general and undermines public confidence in our legal institutions. Mismanagement of a client’s funds is second only in gravity to their actual misappropriation.
Respondent’s poor health and economic misfortune tend to evoke the natural sympathy common to most of humanity while his breach of ethics tends to engender equally human feelings of anger, resentment and vindictiveness. However, my duty, as I perceive it, demands that such sentiments be cast aside and a decision reached in sound and reasoned judgment free of and unfettered by sympathy, bias, prejudice or other sentiment either for or against the Respondent. The result must be fair to both the public and the Respondent, sufficient to punish a breach of ethics, encourage Respondent’s reformation and rehabilitation and severe enough to deter others from like violations.

(Footnote omitted.)

We find the record supports the referee’s findings and recommendations. Respondent is therefore suspended from the practice of law for a period of six months commencing with the filing of this opinion and shall not be readmitted until proof of rehabilitation. Costs in the amount of $1,066.95 are hereby assessed against respondent.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

       It appears from copy of letter from Bar counsel directed to the referee attached to respondent’s brief that, in fact, the Bar urged a suspension of not more than three months.


source: Caselaw Access Project

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. John Errol LEE, Respondent.
    No. 59197.
    Supreme Court of Florida.
    March 12, 1981.
    Wallace N. Maer, Bar Counsel, Edward A. Moss, Chairman of the Grievance Committee L, Miami, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against John Errol Lee, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and report of referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Integration Rule of The Florida Bar 11.09(1) has been filed.

Having considered the pleadings and evidence, the referee found as follows:

1. As to Count I:

Respondent has violated Disciplinary Rule 6-101(A)(3) and 5-103(A) of the Code of Professional Responsibility and Rule 11.02(4) of the Integration Rule of The Florida Bar, in, respectively, incompetently representing his client, the Ad-ministratrix, acquiring a propietary [sic] interest adverse to his client, the Admin-istratrix, in property intrusted to him and failing to keep and maintain funds belonging to his client, the Administratrix, in an identifiable trust account and applying the same for the purpose for which they were intended.

2. As to Count II:

Respondent has violated Disciplinary Rule 6-101(A)(3) and 1-102(A)(4), (5) and (6) of the Code of Professional Responsibility and Rule 11.02(3) of the Integration Rule of The Florida Bar, in that he failed to deliver her Will to his client after she had paid Respondent’s fees and had executed said Will.

3. As to Count III:

Respondent has violated Disciplinary Rule 6-101(A)(3) of the Code of Professional Responsibility and Rule 11.02(3) of the Integration Rule of The Florida Bar by gross neglect as a result of which his client was jailed; Respondent failed to communicate critical information to his client(s) and made it impossible for them to communicate with him.

4. As to Count IV:

Respondent has violated Disciplinary Rule 9-102(A), (B)(4) of the Code of Professional Responsibility and Rule 11.02(4) of the Integration Rule of The Florida Bar, in that he failed to keep, maintain and return upon demand, his client’s funds, given him to be deposited into his trust account with reference to a real estate purchase.

5. As to Count V:

Respondent has violated Disciplinary Rule 1-102(A)(4) and (6) of the Code of Professional Responsibility of The Florida Bar by obtaining thousands of dollars of his employee’s monies upon agreement to return same in one (1) week, but he failed so to do.

The referee recommends that respondent be found guilty of misconduct justifying disciplinary measures and recommends that respondent be disbarred from the practice of law in the State of Florida.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, John Errol Lee, is hereby disbarred from the practice of law in the State of Florida effective immediately-

Costs in the amount of $569.90 are hereby taxed against respondent.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Petitioner, v. Charles D. STEWART, Respondent.
    No. 59257.
    Supreme Court of Florida.
    March 12, 1981.
    Anita F. Dahlquist, Bar Counsel, Tallahassee, for petitioner.
    Charles D. Stewart, in pro. per.
   PER CURIAM.

Respondent Charles D. Stewart entered a conditional guilty plea to a complaint filed by The Florida Bar alleging he violated certain disciplinary rules. In our opinion reported at 376 So.2d 234 (Fla.1979), we suspended Stewart for six months and until he has proved his rehabilitation. This cause is before us on Stewart’s petition for reinstatement and report of the referee.

The referee found:

After his suspension, Petitioner continued his legal residence in Okaloosa County, Florida. His employment following was by Charles Amos, a Fort Walton Beach attorney. Petitioner did research and assisted Mr. Amos in the operation of his office. Mr. Stewart did not engage in the practice of law. He received compensation for his services until just prior to the reinstatement hearing. .. . The witness is confident Stewart is fit to resume the practice of law.
In August, 1979, Petitioner voluntarily sought help for his addiction to alcohol by entering the Drug Abuse Program at Pensacola. He successfully completed the in-residence program in five months and two weeks.
Upon discharge, Petitioner was supervised by the Okaloosa Guidance Clinic. The professional counselor at the clinic was not available as a witness at the hearing herein. Because of the counsel- or’s absence, the official records on Petitioner were not introduced in evidence. However, .a volunteer counselor at the clinic knew nothing adverse to Petitioner.
The evidence establishes that Petitioner for several years prior to these proceedings was unable to control his use of alcohol. Previously, he was a successful and highly respected trial attorney. Stewart admits he is- an alcoholic but testified he has not had any alcohol since February, 1979.
The local Masonic Lodge has given the Petitioner financial assistance during the period of his suspension. It has disbursed for his benefit four to five thousand dollars to his creditors. Included was the procurement of a cashier’s or certified check for $260.00 payable to John W. Farmer, whose funds Petitioner had converted to his own use. Stewart testified he has been unable to locate Farmer so as to satisfy the requirement of the Supreme Court to make refund. At the time of reinstatement hearing, the check appeared to be in the office of Attorney Charles Amos.
Nine witnesses, including five members of the Okaloosa County Bar, testified on behalf of the Petitioner. The gist of the lawyers’ testimony is to the effect that prior to suspension, Petitioner was guilty of gross alcoholic abuse, resulting in his inability to function as a lawyer. After suspension and treatment for alcohol, Stewart has rehabilitated himself. Thus, the opinion is he is now capable of assuming the responsibilities and trust of an attorney.
The lay witnesses had contact with the Petitioner mainly through the Masons and Alcoholics Anonymous. They view him as a rehabilitated alcoholic, who under the belief of Alcoholics Anonymous, meets his problem with alcohol on a day-to-day basis.
The amended petition for reinstatement reveals that Petitioner is heavily in debt. Included are four outstanding judgments and a pending suit by a law book publisher seeking more than $3,000 damages.
In addition, The Florida Bar introduced three exhibits. Two are recorded liens for income taxes, the third a recorded state lien. Petitioner denies owing the federal and state liens.
Petitioner filed no income tax return for the years 1977, 1978, and 1979. He disclaims any liability but the question of his responsibility is still pending.

We hereby approve these findings.

The referee recommends:

1. That the Petitioner, Charles D. Stewart, be reinstated as a member of The Florida Bar.
2. (a) That the undelivered check for $260.00 to reimburse John W. Farmer, Jr., as required by this court, be placed in escrow with The Florida Bar for delivery to Farmer, if and when Petitioner locates him.
(b) That the Petitioner be required to diligently seek and locate John W. Farmer.
(c) That he semi-annually report to The Florida Bar what efforts he has pursued to locate Farmer.
3. That the Petitioner be required to actively participate in Alcoholics Anonymous.
4. That Petitioner be required to immediately pursue the issue of his liability for income taxes for the years 1977,1978, and 1979, and pay such sums as may be assessed against him. Further, he should quarterly make a full report of his actions under oath to The Florida Bar.
5. Likewise, Petitioner be required to determine what taxes, if any, are due the State of Florida, and promptly pay any amount due.
6. That Petitioner be required to quarterly file with The Florida Bar a list of his creditors, including judgments, as appended to his petition filed herein, together with payments made or other disposition thereof. The statement shall be made under oath.

We hereby approve the referee’s recommendations. We note The Florida Bar’s objection to recommendation 2(a), but we authorize the Bar to accept the funds held for the missing person, John Farmer, pursuant to The Florida Bar Integration Rule, article XI, rule 11.02(4)(e).

Accordingly, Charles D. Stewart is reinstated to the practice of law with a two-year probationary period beginning on the date of this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Petitioner, v. Charles D. STEWART, Respondent.
    No. 59768.
    Supreme Court of Florida.
    March 12, 1981.
    Anita F. Dahlquist, Bar Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

The Florida Bar has notified us of the hospitalization of Charles D. Stewart under the Florida Mental Health Act.

It appearing from the Bár’s notification that Stewart is no longer hospitalized, the Bar’s suggestion that he be suspended is denied.

It is so ordered.

SUNDBERG, C. J„ and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


text:
    In re CERTIFICATE OF JUDICIAL MANPOWER FOR DISTRICT COURTS OF APPEAL, CIRCUIT COURTS AND COUNTY COURTS, AS REQUIRED BY ARTICLE V, SECTION 9, FLORIDA CONSTITUTION.
    No. 60359.
    Supreme Court of Florida.
    March 13, 1981.
   PER CURIAM.

Article V, Section 9 of the Florida Constitution provides:

If the Supreme Court finds that a need exists for increasing . .. the number of judges ... it shall, prior to the next regular session of the Legislature, certify to the Legislature its findings and recommendations concerning such need.

For the reasons set forth below, this Court has determined a need for the following new judicial positions, effective August 1, 1981, for the continued, effective operation of the courts of this State.

This Court is cognizant of the Legislature’s desire to approach the budgeting process on a biennial basis. For this reason, the Court has identified clear needs which will exist in Fiscal Year 1982-1983, and based upon information currently available, certifies that there will be the need for at least the following new judicial positions, effective July 1, 1982, for the continued, effective operation of the courts of this State.

The Court wishes to note a number of factors which could result in the need to later certify certain additional judgeships for the second year of the biennium:

(1) While we do not certify the need for an additional permanent judgeship for the First Appellate District in Fiscal Year 1981-1982, we recommend that the Legislature continue to make available one retired judge throughout the first year of the biennium and appropriate sufficient funds for this purpose in addition to the amounts already being requested for retired judges’ compensation. As we pointed out in last year’s certification, the Court feels there is a need to confirm the recent increase in filings over a longer period of time before concluding that this is a permanent condition. Although the First District continues to have the largest number of pending cases, this may still be due to the large number of cases transferred from the Industrial Relations Commission in 1979, and may abate with time. We will continue to observe the rate of new filings occurring in the First District and may find it necessary to certify the need for an additional permanent judgeship in the second year of the biennium, especially , if the so-called TRIM bill (Chapter 80-274, Laws of Florida) begins to have an impact on the Court’s caseload.

(2) The First Judicial Circuit has found it necessary to make extensive use of retired judges over the past year. Their total usage during calendar year 1980 was 278 judge days, second only to the Seventeenth Circuit’s total of 351 judge days. While the filing per judge ratio alone in the First Circuit does not justify a certification of need at this time, the Court is aware of the extensive travel demands which occur in large rural circuits such as the First and which adversely affect the judge time available for handling a normal caseload. The Court will monitor the First Circuit’s use of retired judges to determine if it continues during the first year of the biennium to a degree which will demonstrate the need for an additional permanent judge for Fiscal Year 1982-1983.

(3) While caseload statistics and other observable factors do not at this time justify a certification of need for the Second Judicial Circuit, the anticipated impact of the so-called TRIM bill (Chapter 80-274, Laws of Florida) may necessitate a certification in the second year of the biennium. The Legislature recognized the possibility of an adverse effect on the Second Circuit when it passed the TRIM bill by funding an additional judicial position in that legislation, conditioned on Supreme Court certification. See Section 16, Chapter 80-274, Laws of Florida. Attempts to estimate the number of such proceedings which may eventuate have been unavailing so far. Hence the Court would prefer to observe the actual impact of this legislation before making this certification.

(4) Furthermore, pursuant to Article V, Section 9, Florida Constitution, which requires the Court to make an annual certification of judicial need to the Legislature, the Court must reserve the right to exercise its responsibility to later certify additional judgeships for the second year of the biennium in the event facts not now known become apparent which would make such action essential.

The process by which the Court determined the need for these additional judge-ships began in the fall, 1980, with the distribution of caseload and population statistics to the Chief Judge in each District Court of Appeal as well as each of the State’s twenty Judicial Circuits. Based upon that data and the needs which were perceived within each District and Circuit to meet their constitutional directive of providing all persons in Florida with equal access to the courts without delay, the Chief Judges submitted to the Court their recommendations for new judicial manpower. For the first year of the biennium (Fiscal Year 1981-1982), the Chief Judges asked that the Court consider four additional District Court judges, twenty new Circuit Court judges and twelve new County Court judgeships. For the second year of the biennium (Fiscal Year 1982-1983), the Chief Judges requested that the Court consider four additional District Court judges, twelve new Circuit judge-ships and six additional County Court judges.

During December, 1980 and January, 1981, the Chief Justice and State Courts Administrator traveled to those sixteen circuits requesting new judgeships in order to evaluate their requests. Participating in these meetings were state attorneys, public defenders, county commissioners and other local officials, local Bar representatives, and legislative members and staff, in addition to judicial officers and personnel. At the same time, additional statistical data was gathered and analyzed.

Following the Chief Justice’s visits and analysis, the Court considered the requests of the Districts and Circuits, and the views of the Chief Justice on their needs. There were several criteria used by the Court in this process, including:

1. Caseload statistics, known and projected

2. Growth, nature and projections of population

3. Number of attorneys

4. Use and availability of retired judges

5. Presence of non-lawyer judges

6. Geographic size of the circuit

7. Presence of state facilities

8. Law enforcement activities and policies, including any substantial commitment of additional resources for state attorneys and public defenders

9. Time since the last new judgeship was authorized

10. Complexity of cases

11. Prior certifications which were not authorized.

The process of certifying the need for additional judgeships over the next biennium is not a process by which need can be objectively quantified through the use of a simple equation. Unforeseen developments have an impact upon the judiciary of this State and result in needs which cannot be foreseen, such as occurred with the refugee influx in South Florida recently. The above criteria are considered by the Court in this process, but are not weighted in relation to each other, nor are they compressed into a mathematical formula which will predict with certainty the needs of the judiciary.

It will be noted that the Court’s recommendation certifies to the Legislature nine fewer judicial positions in the first year, and seventeen fewer judicial positions in the second year of the biennium than have been requested by the District and Circuit Courts. Thus, over the biennium, the Court’s recommendation of thirty-two new judgeships is a total of twenty-six new judgeships fewer than have been requested by the District and Circuit Courts.

FINDINGS

DISTRICT COURTS OF APPEAL

The Court has reviewed the requests of the Appellate Districts on the basis of standards recommended by the Appellate Court Structure Commission in 1979. As noted in the certification order filed April 2, 1979, the Florida Appellate Court Structure Commission composed of judges, lawyers, laymen and legislators concluded that to be effective and produce quality decisions, appellate judges should be principally responsible for review of not more than 250 cases, annually. See, In re: Certificate of Judicial Manpower for Circuit and County Courts as Required by Article V, Section 9, Florida Constitution, 370 So.2d 363 (Fla. 1979). That caseload objective was taken into consideration by the Court in its certification orders for 1979 and 1980. Although these certifications were consciously short of the articulated caseload standard, nonetheless, attainment of that standard has remained the goal for the appellate judiciary of this state. Of course, the objective is accentuated for the district courts of appeal by virtue of the passage of the recent constitutional amendment limiting the jurisdiction of the Supreme Court which accords true finality to district court decisions without statewide precedential effect. While this certification still • does not achieve the desired standard it, nevertheless, moves us closer to the stated goal.

Second Appellate District. The Second District currently has eight judges. The need for an additional judge in the first year of the biennium is certified.

Some of the dominant factors upon which this certification is based are that the Second District has the highest total population as well as the highest population per judge of any of the Appellate Districts. See, In re Advisory Opinion to Governor, 374 So.2d 959, 968 (Fla.1979), (Overton, J., concurring). Case filings now existing and as projected justify the need for an additional judge so as to approach the standard 250 cases per judge adopted by this Court.

Third Appellate District. Currently, the Third District Court of Appeal has eight judges, and the need for one additional judge is certified for the first year of the biennium.

In 1979, two new judges were certified, but only one was authorized. The need for the second judge certified in 1979 has not abated, but has increased. In addition, the dominant factors considered by the Court in certifying this need are the high number of filings and projected filings for the Third District, as well as their increasing number of cases pending at the end of calendar year 1980 over those pending at the end of calendar year 1979. The Court feels that the need for this additional judge is evident in the first year of the biennium, although the Third District Court of Appeal did not request an additional judge until the second year of the biennium.

Fourth Appellate District. Currently, the Fourth District Court of Appeal has eight judges and the need for one additional judge in the first year of the biennium is certified.

The dominant factors considered by the Court in certifying this need are the high number of pending cases at the end of the last several calendar years, the growing population in the area, and the high caseload per judge which, based upon the Court’s accepted standard of 250 cases per judge, justifies the need for this additional judgeship.

CIRCUIT AND COUNTY COURTS

Apart from pure statistical data relating to case filings in the following circuits which were considered by the Court, we set forth below the paramount considerations prompting our certification for the respective judicial circuits.

Sixth Judicial Circuit (Pinellas and Pasco Counties). There are currently twenty-six Circuit and thirteen County Court judges in the Sixth Circuit. The need for one additional Circuit judge in each year of the biennium is certified. The dominant factors considered by the Court in certifying this need are that the Circuit ranks fifth in population per judge and eighth in combined rankings of filings, attorneys and population per judge ratios, the recent growth in northern Pinellas and Pasco Counties and the projected 34.3 percent growth between 1975 and 1985. Furthermore the anticipated opening of a new criminal justice complex in mid-Pinellas County in the early part of calendar year 1982 will affect the scheduling of cases and will require more judge travel time to effectively service the civil and criminal dockets if an additional judge is not authorized in the second year of the biennium.

Seventh Judicial Circuit (Volusia, Flagler, St. Johns and Putnam Counties). Currently, the Seventh Circuit has twelve Circuit and eight County Court judges. The need for one Circuit and one County Court judge in Volusia County is certified in the first year of the biennium.

The dominant factors considered by the Court in this certification are that the Circuit ranked third in filings per Circuit judge during 1980, the burgeoning arrest rate in Volusia County according to the Department of Law Enforcement’s 1979 Annual Report, the nature of the population including a very high transient and tourist population as well as the projected population increase of 33.9 percent from 1975 to 1985, and the regular use of County Court judges on the Circuit bench.

The highest filing per County Court judge ratio in the State is found in Volusia County.

Eighth Judicial Circuit (Alachua, Union, Bradford, Baker, Gilchrist and Levy Counties). There are currently seven Circuit and nine County Court judges in the Eighth Circuit, and the need for one additional Circuit judge in the first year of the biennium is certified.

The dominant factors considered by the Court are the geographic size of the Circuit which consists of six counties and which results in considerable travel time, the fact that seven major correctional facilities as well as other state facilities are located in the Circuit, and the extensive use of County Court judges on the Circuit bench which includes one being used full time as a circuit judge for the past year. However, increased county court caseloads preclude continued use of this judge on the circuit bench. In addition, the public defender in the Eighth Judicial Circuit has reported a dramatic increase in felony and juvenile cases compared with last year which resulted in his request for a moratorium on new assignments.

Ninth Judicial Circuit (Orange and Osceola Counties). There are currently seventeen Circuit and twelve County Court judges in the Ninth Circuit. The need for one additional Circuit judge is certified in the first year of the biennium.

The dominant factors considered by the Court are the fact that the Circuit ranks third in the ratio of attorneys per judge, the nature of the population including a high number of tourists and commuters, the need for an additional judge in the Civil Division which has not had a new judge since 1972, and the substantial planned development associated with both the public and private sector in the Circuit.

Tenth Judicial Circuit (Polk, Highlands and Hardee Counties). There are currently twelve Circuit and eight County Court judges in the Tenth Circuit, and the need for one additional Circuit judge in the first year of the biennium is certified.

The dominant factors considered in this certification are the policies of the state attorney which appear to be resulting in more jury trials due to an extensive no plea bargaining policy, the high number of complex drug and organized crime cases being reported in the Circuit, as well as the considerable travel time involved in the Circuit. In addition, the Circuit ranks fourth in its filing per judge ratio, and two of its County Court judges are non-lawyers.

Eleventh Judicial Circuit (Dade County). The Eleventh Circuit currently has fifty-one Circuit and thirty-one County Court judges. The need for four Circuit judges and one County Court judge for Dade County is certified in the first year of the biennium.

Since 1972, only five Circuit judgeships have been authorized. During the same period of time, eight new County Court judges were authorized. There is an expectation that Dade County and the City of Miami will hire a total of an additional 400 law enforcement officers in the next year and that this, along with the impact of minimum-mandatory sentencing laws, will result in more cases being filed, as well as an increase in the number of jury trials.

Ten branch courthouses are being operated in the Circuit which has a total of twenty-six municipalities. First appearance hearings are now held twice a day, seven days a week, and will soon have to be held three times a day.

Additional considerations are the sizable request for additional personnel for the state attorney in the next biennium, the high number of attorneys per judge in the Circuit, which ranks second in the State in this category, the highest number of total filings in the State, and the significant tourist and immigrant population which is affecting judicial caseload.

The additional County Court judge is necessary due to the total caseload being experienced in the County courts which is the largest of any county in the State in all fining categories, and which ranks fourteenth in the State in filing per judge ratio.

Twelfth Judicial Circuit (Sarasota, Manatee and DeSoto Counties). The Twelfth Circuit currently has nine Circuit and six County Court judges. The need for one Circuit and one County Court judge in Sarasota County is certified.

The dominant factors considered by the Court are that the Circuit has had only one Circuit judgeship authorized since 1972, the fact that the Circuit ranks second in population per Circuit judge, and ranks first in the State in combined ratios of filings, attorneys and population per Circuit judge. The population of the Cirucit is projected to increase 43.1 percent between 1975 and 1985. Sarasota County ranks fifth in its ratio of total filings per County Court judge.

Thirteenth Judicial Circuit (Hillsborough County). The Thirteenth Circuit currently has twenty-four Circuit and nine County Court judges. The need for two additional County Court judges is certified in the first year of the biennium.

The dominant factors considered by the Court are that the County has had no new County Court judgeships since 1973, the very high population per County Court judge in Hillsborough County compared with other counties in the State, and that Hillsborough County ranks second in the State in filings per County Court judge.

Fifteenth Judicial Circuit (Palm Beach County). Currently, the Fifteenth Circuit has eighteen Circuit and nine County Court judges. In the first year of the biennium, the need for one Circuit and one County Court judge for Palm Beach County is certified and, in the second year of the biennium, the need for an additional Circuit judge is certified.

The dominant factors considered by the Court are that County Court judges have served on the Cirucit bench over the past year an average of 1.7 circuit judge years, delays of from eight to twelve months are occurring before a trial can be held after a motion to set a case for trial is filed, the projected 51 percent increase in population between 1975 and 1985, and the dramatic increase in the number of attorneys since 1972. In addition, the state attorney has requested a significant increase in staff over the next biennium.

In 1980, a County Court judgeship was certified, but was not authorized and, since that time, county filings have increased. Palm Beach County ranks third in the State in its ratio of filings per County Court judge.

Seventeenth Judicial Circuit (Broward County). Currently, the Seventeenth Circuit has thirty-six Circuit and fifteen County Court judges. In the first year of the biennium, the need for two Circuit and two County Court judges for Broward County is certified and, in the second year of the biennium, the need for two additional Circuit judges is certified.

There has been a 64 percent increase in population since 1970 from about 600,000 to approximately one million in 1980, and projected growth between 1975 and 1985 is estimated to be 34.4 percent. There is also a very large tourist and transient population, resulting in a population which may be characterized as non-static. In addition to these factors, other factors considered by the Court are that the Circuit ranks eighth in filings per Circuit judge and that the Circuit ranks second in total filings, the second highest total number of attorneys of any Circuit in the state, the very high juvenile caseload due to a large number of runaways who arrive in the Fort Lauder-dale area, and current delays of from one year to eighteen months which are being experienced in obtaining a trial date.

In 1980 two County Court judgeships were certified but not authorized and the need perceived at that time has not decreased. The County also ranks seventh in the State in filings per County Court judge.

Nineteenth Judicial Circuit (Martin, St. Lucie, Indian River and Okeechobee Counties). The Nineteenth Circuit currently has seven Circuit and six County Court judges. The need for one Circuit judge in the first year of the biennium is certified.

The dominant factors considered by the Court are the size of the Circuit which requires extensive travel, a projected 53.8 percent population growth between 1975 and 1985, an increase which is being experienced in complex drug eases as well as the significant increase in staff which the state attorney is requesting over the next biennium. One circuit judgeship was certified in 1980 but not authorized and since that time the need for this additional judge has increased.

Twentieth Judicial Circuit (Collier, Lee, Hendry, Glades and Charlotte Counties). Currently, there are nine Circuit and eight County Court judges in the Twentieth Circuit. One additional Circuit and one additional County Court judgeship for Lee County are certified in the first year of the biennium. In the second year of the biennium, an additional circuit judgeship is certified.

The dominant factors considered by the Court are the very large geographical area of the Circuit which includes five large counties, its very long and undeveloped coastline, the dramatic increase in complex drug cases which is being experienced, the significant increase in resources requested by the state attorney, the highest population per Circuit judge in the State, the fact that it ranks third in combined ratios of filings, attorneys and population per Circuit judge, and the projected 68.9 percent increase in population between 1975 and 1985 in the Circuit, which is the highest in the State. In addition, the number of attorneys in the Circuit has more than doubled since 1972.

Lee County has the third highest number of jury trials in the State and the last County Court judgeship authorized was in 1975. The filing per County Court judge ratio in Lee County ranks sixth in the State.

CERTIFICATION

Therefore, in accordance with Article V, Section 9, Florida Constitution, we certify the need for the additional District, Circuit and County Court judgeships indicated above. This Court certifies that these judicial officers are necessary and we recommend that they be made permanent by law and funded by the State. In addition this Court recommends that the Legislature make available to the First Appellate District one retired judge for Fiscal Year 1981-1982, with sufficient resources specifically for this purpose.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


author: BOYD, Justice. SUNDBERG, Chief Justice,

text:
    CITY OF PENSACOLA, Appellant, v. Robert SHEVIN, etc. et al., Appellees.
    No. 57030.
    Supreme Court of Florida.
    March 19, 1981.
    John P. Kuder, Asst. City Atty., Pensacola, for appellant.
    Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of the circuit court in Escambia County, upholding the constitutionality of chapter 76-468, Laws of Florida. We have jurisdiction under article V prior to its recent amendment. Art. V, § 3(b)(1), Fla.Const.

Chapter 76-468 is a broad-ranging amendment of chapter 63-1775, Laws of Florida, a special law which created a civil service system for the City of Pensacola. It appears that various officials of the City and its civil service board suggested the legislation, and as House Bill 3930 it had a somewhat detailed title. As passed by the legislature, however, the act contained provisions not suggested by the local officials, and not specifically referred to in the title of the act. The City of'Pensacola then brought this declaratory judgment action against the attorney general and the members of the General Pension Board of the City of Pensacola, testing the constitutionality of the act under article III, section 6, Florida Constitution.

The title of chapter 76-468 begins, “An Act relating to the Pensacola Civil Service System; amending chapter 63-1775, Laws of Florida, as amended, . .. ." Then the title proceeds to briefly describe the object of each section of the act except for two new paragraphs, section 29(A)(4) and (5), which pertain to the pension rights of city employees discharged for cause.

Article III, section 6, Florida Constitution, provides in part: “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” The City contends that paragraphs (4) and (5) of section 29(A) are unrelated to the subject of the act and thus constitute improper secondary subject matter and that, as a further deficiency, the title contains no expression of the subject of the two paragraphs.

The argument that the pension rights of City employees discharged by the Civil Service Board do not come within or properly connect with the subject of the act need not detain us long. We hold that the act embraces one subject only and that the disputed paragraphs are included in that subject or are properly connected with it.

In order to comply with the requirement that the subject of a law be briefly expressed in the title, the title need not be an index of all the features of the legislation. A general statement of the subject is all that is required; indeed, a brief, general statement is preferred over a detailed listing. Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843 (1945). The title of chapter 76-468 might be said to go into unnecessary detail, as measured by the constitutional requirement, regarding most of the act’s provisions. The fact that a somewhat detailed listing in a title is not complete, however, is of no consequence if the disputed sections relate to the general subject and the subject is expressed in the title. See, e. g., Spooner v. Askew, 345 So.2d 1055 (Fla.1977); King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla.1965).

We hold that chapter 76-468 amending chapter 63-1775, is not unconstitutional by reason of any failure to comply with article III, section 6. The judgment is affirmed.

It is so ordered.

ADKINS, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., dissents with an opinion.

SUNDBERG, Chief Justice,

dissenting.

The reasons occasioning my dissent are best expressed by the heretofore unchallenged words of this Court in Town of Monticello v. Finlayson, 156 Fla. 568, 575-76, 23 So.2d 843, 847 (1945):

[Qjuite frequently an effort to index the act in the title results in what is called a “restrictive title,” which restricts the scope of the act to the matters expressly mentioned, on the theory that the title indicated that [the] legislature did not intend to deal with any other matters, and that to hold otherwise would make the title misleading to the members of the legislature and to the public.

I have no quarrel with the majority’s statement that article III, section 6 does not require that a title contain a detailed explanation of every provision in the act. Purk v. Federal Press Co., 387 So.2d 354 (Fla. 1980). But when the legislature undertakes to set out in minute detail the provisions of an act in its title, our Florida Constitution mandates that it do so completely. No great intellectual prowess is required to discern that a specific and particularized title to an act leads one reasonably to assume that the title includes every detail of the act. In light of the fact that the object of the title requirement is to prevent surprise or fraud, I submit that the inclusion of most but not every detail of an act in its title is as pernicious and violative of article III, section 6 as is the inclusion of too few particulars in the title. To my mind, overti-tling is just as deceiving as undertitling.

The title of the special act before us is a quintessential example of legislative overti-tling. It lists every provision of the act, including the specific time periods and qualifications of each provision, except for two important sections relating to the loss of vested pension rights. As prophesied in Town of Monticello v. Finlayson, the seemingly comprehensive nature of the title lulls one into the mistaken belief that the act is restricted to those matters specifically indexed in the title. Rather than causing one to inquire into the body of the statute, the title to this act “mislead[s] a person ... as to the scope of the enactment.” Williams v. State, 370 So.2d 1143, 1144 (Fla.1979). Accord, Messer v. Jackson, 126 Fla. 678, 171 So. 660 (1936).

Because I see no reason to ignore the teachings of Town of Monticello v. Finlayson, and because the overtitling found in this case breathes life into the evils article III, section 6, was designed to prevent, I respectfully dissent.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. A. J. RYAN, Jr., Respondent.
    No. 59650.
    Supreme Court of Florida.
    March 19, 1981.
    Harris K. Solomon, Bar Counsel, Fort Lauderdale, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar, report of the referee, and petition of The Florida Bar to review the referee’s recommendations. Ryan did not file an answer to the Bar’s review petition.

The referee found that respondent Ryan allowed the statute of limitations to run against a client’s cause of action, failed to deliver to a client securities or other property to which the client was entitled, and failed to timely account for escrow funds upon a proper request and a circuit court order. The referee recommends respondent Ryan be found guilty of violating Code of Professional Responsibility Rules 7-101(A)(1), (2), and (3), 9-102(B)(4), 6-101(A)(3), and Canon 9. Upon full review of the record, we adopt and approve the referee’s findings of fact and recommendations of guilty.

For these violations, the referee recommends that we publicly reprimand Ryan and place him on probation for one year. It appears that the referee’s recommendation was based on his belief that Ryan did not have a prior disciplinary record. This belief was mistaken, however, since Ryan had previously been publicly reprimanded by this Court. See The Florida Bar v. Ryan, 352 So.2d 1174 (Fla.1972). The Florida Bar argues that, in light of Ryan’s past and present misconduct, he should receive a more severe punishment. We agree.

Accordingly, Ryan is hereby suspended from The Florida Bar for a period of thirty (30) days, effective April 20, 1981, allowing him time to close out his practice and to protect his clients’ interests, followed by a one-year probation. Every three months during the probation period. Ryan shall furnish staff counsel to The Florida Bar an inventory of his files and a status report on each file. Costs are taxed against the respondent in the amount of $1,281.14.

It is so ordered.

OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion, with which ADKINS, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I would adopt the referee’s recommendation of discipline reprimanding respondent and placing him on probation for one year.

The nature of his violations when considered with his long record of private and public service does not warrant suspension.

ADKINS, J., concurs.

      . The referee’s report apparently contains a typographical error. The referee finds under count I that Ryan violated Rule 6-101(A)(l), (2), and (3) for allowing the statute of limitations to run on a client’s cause of action. Under this count, Ryan was charged with violating Rule 7-101(A)(l), (2), and (3).


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Melvyn GREENSPAHN, Respondent.
    No. 59498.
    Supreme Court of Florida.
    March 26, 1981.
    Scott K. Tozian, Bar Counsel, Tampa, for complainant.
    Melvyn Greenspahn, in pro. per.
    Barry Richard of Roberts, Miller, Bag-gett, LaFace, Richard & Wiser, Tallahassee, for respondent.
   PER CURIAM.

This is a disciplinary proceeding against Melvyn Greenspahn, a member of The Florida Bar. It is before this Court on a complaint of the Florida Bar, report and recommendation of the referee, and petition for review by Mr. Greenspahn. Two complaints to this Court against Mr. Green-spahn preceded this one, but the alleged acts of misconduct in the present case occurred before or about the same time as those of the last complaint. The charges brought in this proceeding, however, could not have been presented as part of the prior complaint. See The Florida Bar v. Rubin, 362 So.2d 12 (Fla.1978).

In considering the appropriate discipline for an ethical violation, this Court considers past derelictions of responsibility and, when appropriate, increases the penalty. The Florida Bar v. Welch, 309 So.2d 537 (Fla.1975); The Florida Bar v. Enwright, 172 So.2d 584 (Fla.1965). Under the peculiar facts of this matter, however, we determine the appropriate discipline from the totality of the conduct as though all of the charges had been presented to us in one proceeding.

We disagree with the referee’s finding that the evidence supports a finding of moral turpitude. There is, however, evidence of frequent acts of neglect and failure to promptly deliver clients’ funds to them. To this extent we adopt the referee’s findings.

Reviewing the totality of the acts complained of in this case, together with the prior established acts of misconduct, we find that the appropriate penalty is suspension for eighteen months. Mr. Greenspahn has not been reinstated for the six-month suspension which commenced on June 16, 1980; therefore his suspension shall continue to December 16, 1981. At that time, he may apply for readmission, and upon proof of rehabilitation and payment of all costs he shall be readmitted to the practice of law.

Mr. Greenspahn is directed to pay costs of these proceedings in the amount of $2,188.38.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion.

ALDERMAN, Justice,

concurring in part, dissenting in part.

Respondent Melvyn Greenspahn has been before this Court on two other occasions. The first time was in The Florida Bar v. Greenspahn, 366 So.2d 396 (Fla.1978), in which he was publicly reprimanded for his willful failure to file income tax returns and his subsequent conviction of a criminal misdemeanor for such misconduct. The second time was in The Florida Bar v. Greenspahn, 386 So.2d 523 (Fla.1980), in which he received a six months’ suspension for two incidents involving his failure to maintain and to promptly pay trust funds to his clients and for a separate incident involving his failure to return unearned fees and costs advanced by his client until after a hearing of the client’s complaint by the grievance committee.

In the present case, Greenspahn has been found guilty of four additional counts of misconduct. First, the referee found that Greenspahn did not attend a pretrial conference in a lawsuit which he had filed on behalf of one of his clients and that, as a result, the case was dismissed. Thereafter, Greenspahn failed to advise his client that the case had been dismissed and misrepresented to his client that the case was still pending and had been ultimately settled by him for $2,500. Greenspahn gave his client a check for $2,500, representing that it was the proceeds from the settlement. The check was returned for insufficient funds, and the client never received any money from the dismissed lawsuit. Second, the referee found that Greenspahn, in a wrongful death action which he had filed on behalf of the decedent’s estate, negligently allowed the lawsuit to be dismissed for lack of prosecution. Third, the referee found that Greenspahn, after having undertaken the representation of a client under a contingent fee contract and after having determined that there were problems, failed to advise his client of what he was doing to try to settle the case or to advise his client that under no circumstance did he intend to litigate the client’s claim. The referee concluded that Greenspahn should have timely advised his client that he had exhausted his settlement efforts and that he was not going to file suit so that the client could have sought other counsel. Fourth, the referee found Greenspahn guilty of misconduct involving his handling of a $7,500 personal injury settlement on behalf of another client. During this transaction, Greenspahn gave his client at least two trust account checks that were returned for insufficient funds. The referee stated: “There is absolutely. no excuse for this and again is a reflection that Respondent played fast and loose with his own account, his office account and his trust account and did not fully understand (or willfully ignored) the total responsibility in regard to trust accounts that should be recognized by every qualified and acting professional attorney.”

I agree that the four acts of misconduct in the present case and the three acts of misconduct for which Greenspahn has already been suspended should be considered together and that the appropriate discipline should be determined from the totality of the conduct as though all of the charges had been presented to us in one proceeding. I disagree, however, that the appropriate penalty is suspension for eighteen months. This case does not involve isolated instances of misconduct. Rather, it appears that Greenspahn is guilty of a persistent course of misconduct over several years. In addition, his criminal failure to file income tax returns indicates a disrespect for the law. The practice of law is a privilege, not a right. Greenspahn has abused this privilege. Over a number of years he has clearly demonstrated that he does not measure up to the high standards of the profession. By his conduct he has forfeited the privilege of practicing law. I would accept the referee’s recommendation that Greenspahn be disbarred.

        The Florida Bar v. Greenspahn, 386 So.2d 523 (Fia.1980); The Florida Bar v. Greenspahn, 366 So.2d 396 (Fla.1978).


text:
    Gary Eldon ALVORD, a/k/a Paul Robert Brock, a/k/a Gary Eldon Venczel, Appellant, v. STATE of Florida, Appellee.
    No. 57810.
    Supreme Court of Florida.
    April 9, 1981.
    Rehearing Denied April 16, 1981.

      William J. Sheppard, Jacksonville, Stephen D. Stitt, Gainesville, Jack Greenberg, New York City, and Anthony G. Amsterdam, Stanford, Cal., for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal by the appellant, Gary Eldon Alvord, from a denial of post-conviction relief. Alvord was convicted in 1974 of three counts of first-degree murder for the strangulation of three women.

This is the third time this cause has been before this Court for review. An abbreviated chronology of the judicial proceedings is as follows.

The appellant was convicted of the murder charges on April 9, 1974. On September 17, 1975, this Court affirmed those convictions in its decision reported in Alvord v. State, 322 So.2d 533 (Fla.1975). Appellant thereupon sought review by certiorari to the United States Supreme Court, which was denied on July 6,1976. Alvord v. Florida, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226, rehearing denied, 429 U.S. 874, 97 S.Ct. 195, 50 L.Ed.2d 157 (1976).

In his first collateral attack upon this conviction, appellant filed a motion for reduction of sentence under Florida Rule of Criminal Procedure 3.800(b) on November 29,1976. The trial court denied the motion, finding it was without jurisdiction. Appellant then sought review of this action by petition for writ of mandamus, which was denied by this Court in an unreported order on March 10, 1977.

The instant case arises from a second collateral attack upon the convictions, commenced on October 6, 1978, by filing a motion for post-conviction relief under the provisions of Florida Rule of Criminal Procedure 3.850, to which two supplements were filed. Consideration was delayed by these supplements and by appellant’s pro se motion that his counsel withdraw. Appellant contends in his motion that:

(1) The trial court failed to respond to appellant’s pro se request to have the public defender removed as counsel and have private counsel appointed.

(2) Trial counsel was incompetent because he did not file a notice of intent to claim insanity as a defense.

(3) The trial court erred by failing to instruct the jury on its own initiative that appellant had a past history of mental illness, had previously been adjudicated insane, and should be presumed insane until such presumption was overcome by proof beyond every reasonable doubt.

(4) Counsel on the initial appeal was incompetent for failing to raise the following issues: (a) whether the trial court erred in setting aside its order sending appellant to a state institution for observation to determine his sanity; (b) whether the trial court erred in allowing Dr. Ames Robey to examine defendant and testify regarding defendant’s mental condition; and (c) whether the trial court erred in allowing Dr. Robey to testify regarding defendant’s past criminal history during the sentencing phase.

(5) He was denied an adequate psychiatric examination on the question of his sanity on the date of the offenses.

(6) The interrogation of appellant by a Michigan detective was contrary to the principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because the detective neglected to read appellant the warnings as printed on the police form and failed to have appellant execute a written waiver of his constitutional rights.

(7) The death penalty has been administered and applied in a manner inconsistent with the principles in State v. Dixon, 283 So.2d 1 (Fla.1973), and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

(8) The death penalty in Florida has been and is being applied pursuant to a practice which discriminates on the grounds of sex and poverty.

(9) Prosecutors and courts employ the death sentence as a penalty for the exercise of a defendant’s right to a jury trial by a regular and uniform practice of declining to seek or impose the death sentence when the defendant pleads guilty although those cases are factually indistinguishable from those in which the defendant pleads not guilty and is sentenced to death after a jury trial.

(10) The imposition of the death sentence in this case is cruel and unusual because of all the relevant facts, including appellant’s lengthy history of mental illness.

(11) Section 921.141, Florida Statutes (1973), is a matter of judicial practice and procedure and consequently violates article V, section 2(a), of the Florida Constitution.

(12) The death penalty is unconstitutional as applied to appellant because it is administered arbitrarily and discriminatorily to punish the killing of white persons as opposed to black persons.

(13) It was error for the trial court to fail to excuse for cause a venireman who indicated he felt everyone convicted of first-degree murder should receive the death penalty. The venireman was later excused peremptorily by appellant.

(14) The death sentence was imposed although none of the aggravating circumstances found to support the death sentence were alleged in the indictment and none were found to exist beyond a reasonable doubt.

(15) The consideration of mitigating circumstances was impermissibly restricted by the trial judge, contrary to the standards of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

After an evidentiary hearing and a clearly exhaustive review of the record, the trial judge denied this petition for post-conviction relief. The trial judge recognized that the principal assertion was directed to the competency and effectiveness of counsel at both trial and appellate levels. In his extensive order, the trial judge made the following specific findings:

[T]he Defendant had committed an offense in 1967 in the State of Michigan involving the kidnapping and rape of a young girl. He was tried before the Court without a jury and on the 12th day of May, 1970 was found not guilty of those offenses by reason of insanity and he was committed to the Michigan Department of Mental Health. He escaped from the Ionia State Hospital in Michigan on January 24th, 1973, came to Florida, and on June 17th, 1973 committed the three murders for which he was subsequently convicted and sentenced to death.
The Court appointed the Public Defender’s Office to represent the Defendant and although he made several requests for appointment of private counsel, each of which was denied by the Court, he was ultimately represented in the trial of this cause by Thomas Meyers, an Assistant Public Defender. The Defendant did not object to Thomas Meyers, Esquire individually, but he objected to being represented by the office of the Public Defender .... This was in response to an inquiry by Mr. Meyers to determine if the Defendant objected to Mr. Meyers individually with the intention of requesting the Public Defender to appoint another Assistant to represent the Defendant if that was the basis of the Defendant’s objection .... The Court had no authority to appoint anyone other than the Public Defender unless there was a conflict of interest involved. The Court even suggested to Mr. Meyers that if he felt that due to the difficulty he was encountering at that point in representing the Defendant that the Public Defender’s Office could file an appropriate motion to be relieved and that the Court would consider the same. This is reflected by the portion of the transcript contained in the Defendant’s appendix beginning on page 43.
“THE COURT: I would appreciate that. As far as — are you making a motion to discharge your counsel? Are you doing that now?’
THE DEFENDANT: Yes sir. I have no faith in any persons representing the Public Defender’s Office.
THE COURT: Well, I am going to let you take this up with the Public Defender, as far as — you might accommodate him in filing a written motion, Mr. Meyers, if you so desire. The Court may, since this is such a serious offense where three first degree murders are involved, as a precautionary matter, and in no way reflecting on your competency, because I have seen you try many cases, the Court may consider appointing him private counsel.
MR. MEYERS: I would not object, your Honor.
THE COURT: Well, I don’t want you to take this as a castigation of your character or your ability to try cases, because I have seen you try many cases before me and other courts, and I have no doubt of your ability. But you might accomodate [sic] him in filing such a motion, and the Court may consider giving him private counsel. Of course, I can’t guarantee him that the private counsel, his opinion of the private counsel may be even as bad or worse than that he has of you at the present. I can’t control that.”
Thereafter this apparent dissatisfaction with Mr. Meyers was apparently resolved as is reflected by the colloquy contained in Defendant’s appendix at page 60:
“MR. MEYERS: I would state into the record that I have advised, as the attorney for the defendant, that he do cooperate with the two court-appointed psychiatrists, and that his refusal to talk with the doctors is strictly on his own initiative and not at all prompted by any advice or suggestion by me.
Is that correct, Mr. Alvord? You have come to this decision on your own not to talk with the psychiatrists[?]
THE DEFENDANT: The court gave me the impression I would have another lawyer. So, I considered myself without a lawyer.
MR. MEYERS: Well, did I talk with you on the 9th of this month, subsequent to your appearance in Court last week?
THE DEFENDANT: Yes.
MR. MEYERS: And did you fully cooperate with me then to the extent that you could and at that time concurred that I would by [sic] your lawyer?
Other than this one factor, (refusal to be examined by the two court-appointed psychiatrists) Judge, he was very cooperative.”
This cooperation between the Defendant and Mr. Meyers obviously continued throughout the balance of the proceedings before the trial Court and after sentencing. In a letter directed to Dr. Ames Roby [sic] dated January 5th, 1975 the Defendant’s relationship with Mr. Meyers was stated as follows:
“Tom Meyers and I still correspond. He sure is a good guy. He’s always trying to help in what ways he can and he really has no reason to. I seldom ask for anything but he lets me know that he’s willing.”
The Defendant seems to have a penchant for “firing” his attorney. After his Motion for Post Conviction Relief was filed in this cause the Court received a pro-se document dated the 27th day of November, 1978 in which the Defendant stated “Said Gary E. Alvord on this date wishes/request [sic] of this Honorable court to drop his appeal and all attorneys/or persons assisting, in said appeal.” This pleading was directed to the representation by the Defendant’s present counsel who are unquestionably competent and dedicated to the Defendant’s cause. Thereafter, by document dated the 12th day of February, 1979 the Defendant withdrew his pro-se pleading.
The Court finds that the Defendant ultimately consented to being represented by Assistant Public Defender Thomas Meyers, that he fully cooperated with Mr. Meyers in the preparation of the case for trial (other than submitted to examination by the court-appointed psychiatrists and that the trial Court did not commit error in failing to appoint private counsel to represent the Defendant.

On the issue of trial counsel’s asserted incompetence for not filing a notice of intent to claim insanity as a defense, the trial court found:

As stated in the Defendant’s Motion for Post Conviction relief, trial counsel was aware of the Defendant’s history of mental problems. On March 5th, 1974, Mr. Meyers requested copies of the Defendant’s medical history from the State of Michigan and included therein a consent to the release of such information executed by the Defendant. Trial counsel was aware of the Defendant’s adjudication of insanity and that he was presumed to remain incompetent until adjudicated otherwise .... The record is replete with various pre-trial motions filed by Defendant’s trial counsel which reflect adequate preparation and knowledge of the law applicable to the issues involved.
The Court appointed Dr.’s [sic] Gonzalez and Sprehe to conduct a psychiatric examination of the Defendant and scheduled a competency hearing to be held on the 12th day of October, 1973. At that hearing Dr.’s [sic] Gonzalez and Sprehe both advised the Court that the Defendant refused to answer any of their questions or to communicate with them in anyway [sic]. Mr. Meyers advised the Court that upon being contacted by Dr. Sprehe he immediately went to the jail and talked with the Defendant and Mr. Meyers remained of the opinion that the Defendant did need to be examined .... Thereafter the State made arrangements for Dr. Ames Roby, Director of the Center for Forensic Psychiatry in the State of Michigan to come to Florida and examine the Defendant. He did so and testified as to the Defendant’s competency to stand trial on the 4th Day of January, 1974. At that hearing Dr. Roby testified that he knew the Defendant Gary Alvord quite well, he had examined the Defendant the preceding afternoon, he first met the Defendant on November 13th, 1969 for an admission evaluation, he was familiar with the Defendant’s psychiatric or mental history, the Defendant conversed with him quite freely the preceding afternoon, he understood his role as a Defendant in this case, was aware that he was charged with three counts of murder in the first degree, he was more than ordinarily aware of legal procedures, he knew that he was facing the death penalty and was concerned, but felt that there was really no evidence against him. Dr. Roby testified that he talked with him about the insanity defense and in his opinion any reluctance on the part of the Defendant to cooperate would be just that — it would not be in any way based upon mental illness and that there was no mental illness or desease [sic] that would prevent or preclude him from aiding and assisting his counsel. Dr. Roby testified that in his opinion the Defendant was competent to stand trial....
At the conclusion of the hearing the following colloquy took place between the Court and counsel.
“THE COURT: Mr. Meyers, in view of the fact that this original motion was made by the defense to have the defendant examined, and upon the appointment by the two psychiatrists, the defendant saw fit not to cooperate with them. Has there been any change in the attitude of the defense as to whether or not the defendant intends to cooperate with the doctors?
MR. MEYERS: I talked with him earlier, but let me see what his attitude is now.
(Mr. Meyers conferred with the defendant.)
MR. MEYERS: He indicated he doesn’t, will not cooperate with any psychiatrists. I still recommend that he do so.
THE COURT: Do you still wish to continue on your motion to have him examined?
MR. MEYERS: Yes, I do. He’s going counter to my opinion and legal advice now.
THE COURT: Well, the Court is bending over backwards to try to accommodate the defendant in all his motions. And one of the motions was that he be examined by two qualified psychiatrists here in our Court, and I have granted that motion and doing everything within the Court’s power to give the defense and- the Court the benefit of any mental condition this man may be suffering from. But if the defendant does not desire to cooperate under these conditions and the defense of insanity is not going to be raised in this case, I see no reason we can’t go to trial.” ...
At that hearing the Court re-appointed Dr. Gonzalez and Dr. Sprehe to make another attempt to examine the Defendant. At the hearing held on January 11th, 1974 these two court-appointed psychiatrists testified that the Defendant had again refused to be examined by either of them. The record of that hearing also reflects that the Defendant had been further examined by Dr. Ames Roby after the previous hearing and the Assistant State’s Attorney furnished the defense counsel and the Court with a copy of Dr. Roby’s medical report prepared subsequent to his second examination of the Defendant, and the Court found the Defendant competent to stand trial. Subsequently, on the 8th day of February, 1974 another competency hearing was held and at that hearing Dr. Sprehe testified that the Defendant had finally permitted him to conduct a psychiatric examination on the 6th day of February, 1974 and that in his opinion the Defendant did understand the charge against him and was able to assist counsel in the preparation of his defense.. ..
The Defendant’s trial counsel obtained copies of his medical reports from the State hospital in Michigan which reflect that in the opinion of the psychiatrists there — particularly Dr. Ames Roby and Dr. Birzgalis that the Defendant in August 1972 was no longer psychotic and that he had never at any time been overtly psychotic ... that it was questionable that he was ever psychotic and that he was hostile, defiant and manipulative but not overtly psychotic .... Defense counsel also had access to the medical report furnished by Dr. Ames Roby after his examination of the Defendant in the Hillsborough County jail in which he stated that the Defendant in his opinion was not insane under Florida law (“M’Naughten [sic] Rule”) and also it was Dr. Roby’s opinion that the Defendant was sane at the time he allegedly committed the three murders for which he ,was charged. The Defendant denied having committed these murders, refused to be examined by court-appointed psychia-triste on the issue of his competency at the time of the commission of the offense even after having been advised that he would not be permitted to claim the defense of not guilty by reason of insanity unless he submitted to such examination. He was competent to stand trial and therefore was competent to make the decision which he made even though it was against the advice of trial counsel. It is obvious that he did not want trial counsel to assert this defense and trial counsel was well aware that should such a defense be asserted that the psychiatrists from the State of Michigan who were very familiar with the Defendant and his medical and mental history would testify that in their opinion the Defendant was sane on June 17th, 1973, the date of the offenses for which he was on trial. As observed by Judge Rawlins, trial counsel was experienced and capable and he was not called as a witness at the evidentiary hearing granted on the Defendant’s Motion for Post Conviction Relief. It is obvious to the undersigned based upon full review of the trial transcript and the appendix to the Defendant’s motion that trial counsel had fully advised himself of this possible defense and that the same was at most tenuous — probably fruitless — and quite possibly would weaken the Defendant’s asserted defense that he had not committed the offenses for which he was on trial. The Court finds that Davis vs. Alabama, 596 F.2d., 1214 (5th Cir. 1979) is not applicable. In Davis it was obvious that he had committed the offense for which he was charged — he pleaded not guilty by reason of insanity— his only possible defense, but trial counsel had not properly prepared that defense. Here, Mr. Meyers had fully explored that defense, was fully cognizant of the continuing presumption of insanity which arose by virtue of the Defendant having been found not guilty by reason of insanity in Michigan in 1970 and that the laws pertaining to insanity differed between the State of Michigan and the State of Florida. What was defense counsel’s duty to rescue his client from his own voluntary acts? The Defendant would not follow Mr. Meyers’s [sic] suggestion that he submit to the Court ordered psychiatric examinations and it is obvious that trial counsel did everything within his power and his ability to convince the Defendant to do otherwise. There is a presumption that counsel is competent and this presumption must be overcome by the Petitioner in order for an ineffective assistance of counsel claim to lie. McQueen vs. Swenson, 498 F.2d, 207, 216 (8th Cir. 1974). The Defendant has failed to overcome that presumption.
This Court has attempted to delve behind the scenes by review of the voluminous material furnished at the evidentia-ry hearing to ascertain whether the trial counsel, either by inaction or through ill-taken action, failed to meet the standards of a reasonable, competent and devoted advocate as set forth in Freedman v. U. S., 588 F.2d, 1010 (5th Cir. 1979) and the Court finds that the Defendant’s trial counsel was competent and devoted to the Defendant’s cause.
The Defendant also claims that the trial Court erred in failing to intrust [sic] the jury sua-sponte [sic] that the Defendant had a past history of mental illness and had previously been adjudicated insane and was presumed insane until such presumption was overcome by proof beyond every reasonable doubt that the Defendant was in fact sane at the time he allegedly committed the offenses for which he was on trial. This ground for post conviction relief is also without merit. No proof of the Defendant’s prior adjudication of insanity had ever been submitted to the Court and no such defense was raised. A Defendant has the burden of establishing a plea of insanity by showing that he was legally insane when he committed the criminal act. Hixon vs. State, (DCA 1964) 165 So.2d., 436. The trial Court is only required to instruct the jury on issues properly raised. Since the Defense did not choose to assert the defense of insanity it would have been improper for the trial Court to have instructed the jury on that issue.

The trial court concluded that it had:

considered the other grounds contained in the Defendant’s Motion for Post Conviction Relief and finds that the same are either without merit, have been formerly disposed of adversely to the Defendant in the appeal of this cause, Alvord vs. State, (Fla.1975) 322 So.2d., 533, or they are not a proper ground for a motion for post conviction relief.

The principal assertion by appellant is that he was denied effective assistance of trial counsel because his counsel was unable to convince him to plead not guilty by reason of insanity. We find the record clearly sustains the finding of the trial judge and shows that the original trial counsel competently, diligently, conscientiously, and effectively represented the appellant. Counsel did all that could be done to provide appellant with effective representation and a fair trial, given the facts and circumstances of this cause. In our view, the representation provided appellant met the standard for effective assistance of counsel articulated by this Court in Knight v. State, 394 So.2d 997 (Fla.1981).

The other issue which warrants discussion concerns the testimony of the psychiatrist, Dr. Robey, at the sentencing stage of the proceedings. The decision of Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979), cert. granted, 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980), relied on substantially by the appellant, was decided subsequent to our initial review of this cause and, in our view, is not applicable. Smith held that statements made to a psychiatrist appointed to examine the defendant could not in that specific case be used in aggravation in the sentencing proceeding. We find that Smith does not apply because the issue of the propriety of Dr. Robey’s testimony was raised in the initial appeal before this Court, although on another theory of law, and rejected in our original opinion on the merits. 322 So.2d at 539. Post-conviction relief is not available for a reap-peal or a rereview or to raise issues that could have been raised on the initial appeal. Adams v. State, 380 So.2d 423 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). Further, the Smith decision is not a change of law that warrants post-conviction relief under the doctrine we expressed in Witt v. State, 387 So.2d 922 (Fla.1980). Even if it were applicable, Smith is distinguishable since in Alvord’s case the history and critical information related at the sentencing proceeding by the psychiatrist Robey were obtained in Michigan well before the commission of the instant criminal offenses and were proper to negate the argument of mitigating factors relating to mental condition.

We find the record fails to support the allegation that appellate counsel was incompetent because he did not properly present the legal issue of appellant’s competency and the testimony of the psychiatrist. The ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law. In our view, the appellant was provided with effective assistance of counsel on the initial appeal of this cause.

The remaining issues are without merit and have been disposed of by this court in previous proceedings or could have been raised in the initial appeal.

The order of the trial judge denying post-conviction relief is affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


author: BERANEK, Judge.

text:
    Mary Ellen JOHNSON, Appellant/Cross-Appellee, v. Alexander Leo JOHNSON, Jr., Appellee/Cross-Appellant.
    No. 78-1183.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Marjorie D. Gadarian of Jones & Foster, P.A., West Palm Beach, and Willes, Bittan & Willes, Fort Pierce, for appellant/cross-appellee.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, and William C. Owen, Jr., of Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A., Tequesta, for appel-lee/cross-appellant.
   BERANEK, Judge.

This is an appeal by the wife and cross-appeal by the husband from a final judgment of dissolution of marriage. The wife seeks review of the division of certain real estate holdings and the amount of child support. Husband challenges the court’s award of costs and attorneys’ fees. We affirm.

The parties were married in 1953 and separated in 1976. During the marriage, three children were born, and at the time of the final hearing, the 15-year old daughter was residing with the wife. The other children had reached majority and no longer resided with their parents. Both the husband and wife were 47 years old at the time of the hearing.

The parties had a high standard of living and were well off financially. In 1956 the husband had purchased an automobile dealership in Fort Pierce from the wife’s father. The purchase price was $23,000. The business did well and in 1960 was incorporated under the name of A1 Johnson Motors, Inc. The husband and wife each owned 50 shares of stock in the corporation. The stock in the corporation was divided among the parties and their three children in 1968.

At the time of the final hearing, the parties owned the automobile dealership and the vacant lot behind it. They also owned a building and property leased to Sambo’s Restaurant including a parking lot to the same restaurant. A vacant lot behind the restaurant and a marital home were also titled in the parties’ names. The rental income from these sources was being equally divided after payment of mortgages and related expenses. At the time of the hearing, the husband had been voted out of control in the automobile dealership and had been relieved of his position as manager and president. The husband was attempting to enter upon a real estate career. The wife had assumed husband’s former position in the automobile dealership and was earning a salary. The wife testified that the expenses directly relating to the minor daughter were $156.75 per week.

In the final judgment, the trial court awarded the wife the automobile dealership property and the marital home. The husband was awarded the vacant lot behind the automobile dealership, the Sambo’s Restaurant property and parking lot and the vacant lot to the rear. The court awarded custody of the minor child to the wife and ordered the husband to pay child support of $25.00 per week plus one-half of the private school tuition for the child’s education. The court awarded attorneys’ fees to the wife of $5,000 and costs.

During the trial, the parties stipulated that the trial court could make an equitable distribution of all jointly owned properties. This request was also contained in the pleadings of the parties. In the final judgment, the trial court stated as follows:

. After division of the property as hereinafter set forth, she [the wife] has assets having a net worth substantially equal to that of the petitioner and she has an income and earning capacity substantially equal to that of the petitioner.

Although we might well have arrived at a different conclusion, the trial court here was vested with the discretion normally possessed by a trial judge under the dictates of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and with the additional discretion created by the stipulation of the parties. As such we conclude that the wife has failed to demonstrate reversible error in regard to the child support and the property division. These awards are thus affirmed.

As to the award of attorneys’ fees which is contested by the husband, the court stated as follows:

As to the matter of respondent’s request for attorney’s fees, the Court finds from the evidence that the husband is guilty of vexatious, wanton and oppressive conduct, thus justifying the application of the court’s inherent equitable authority. The Court therefore awards the wife the sum of Five Thousand ($5,000.00) Dollars to apply toward her attorney’s fees, said sum to be paid by the husband within six (6) months from the date of this Judgment.

The Supreme Court’s decision in Chaachou v. Chaachou, 135 So.2d 206 (Fla.1961), dealt with a situation where the husband’s conduct was oppressive, vexatious and wanton. The Supreme Court concluded that even such conduct would not warrant imposition of attorney’s fees unless the conduct resulted in additional work to be performed by counsel for the wife. Clearly, fees may not be awarded as a punitive measure. A trial court is, however, not without authority in this regard. In Lewis v. Lewis, 383 So.2d 1143 (Fla. 4th DCA 1980), this Court stated as follows:

In addition, as appellee contends, it may be the trial court felt a great deal of the work required to earn the attorneys’ fees was unnecessarily caused by the husband. In any event, as the Court stated in Canakaris:
“It is not necessary that one spouse be completely unable to pay attorneys’ fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorneys’ fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.”

We conclude that there has been no demonstration of reversible error on the part of the trial court in awarding wife’s counsel $5,000 which represented only part of the attorneys’ fees charged to wife. There is no attack made on the amount of this fee. The fee does not appear to be punitive but appears to have been assessed on the basis of the additional work made necessary by the vexatious, oppressive and wanton conduct of the husband during the divorce proceedings. Our review of the record in this regard demonstrates adequate evidence to support the award based upon additional work made necessary by the husband’s conduct during the proceedings and on the theory enunciated in Canakaris that to deny fees would work an inequitable diminution in the sums awarded the wife in the proceedings. We, therefore, affirm the award of attorneys’ fees and costs.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.


author: ANSTEAD, Judge.

text:
    Robert E. SCHEURER, Appellant, v. STATE of Florida, Appellee.
    No. 79-2027.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant contends that the trial court erred in imposing a two year term in prison as a special condition to appellant’s five year term of probation for grand theft and also claims error in the denial of his motion for new trial.

We find no error in the denial of the motion for new trial. However, the Supreme Court has recently held that an order of incarceration for one year or more imposed as a condition of probation is illegal. Villery v. The Florida Parole & Probation Commission, 396 So.2d 1107 (1980). Also see Russell v. State, 386 So.2d 285 (Fla. 4th DCA 1980). The two year term involved herein is clearly illegal under Villery.

Accordingly, the judgment of conviction is affirmed but the order of probation is reversed with directions for further proceedings in accord with the Supreme Court’s opinion in Villery, supra.

BERANEK and HURLEY, JJ., concur.


text:
    Daniel Patrick GAINEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1462.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.

      Richard L. Jorandby, Public Defender, and Martin Colin, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant pled nolo contendere and reserved his right to appeal the denial of his motion to suppress certain physical _ evidence. We relinquished jurisdiction to the trial court for a determination of whether the ruling on appellant’s motion to suppress the tangible evidence was dispositive of the case. Gainey v. State, 386 So.2d 904 (Fla. 4th DCA 1980). The trial court entered an order on October 14, 1980, finding that the motion to suppress did not present a dispos-itive issue. The defendant’s nolo conten-dere plea was entered prior to the date of Brown v. State, 376 So.2d 382 (Fla.1979). Accordingly, on the authority of Brown v. State, supra, this appeal is dismissed and the cause remanded to the trial court. Appellant shall have thirty days from the date of our mandate within which to seek withdrawal of his plea in accordance with Brown v. State, supra. The trial court shall grant appellant’s motion to withdraw the plea unless the State is able to establish prejudice as a result of the delay caused by this appeal. See Gray v. State, 381 So.2d 302 (Fla.2d DCA 1980), and Pittman v. State, 382 So.2d 1227 (Fla.2d DCA 1980).

LETTS, C. J., and GLICKSTEIN, J., concur.


text:
    James E. FORSYTHE, Petitioner, v. Richard WILLE, Sheriff, Palm Beach County, Respondent.
    No. 80-1743.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1980.
    Richard L. Jorandby, Public Defender, and Michael Salnick, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

This matter is before us upon a petition for writ of habeas corpus wherein the petitioner alleges that he is being illegally detained under an excessive bond of $250,-000.00. We have examined the transcript of the bond hearing and, under the standards set out in Good v. Wille, 382 So.2d 408 (Fla.4th DCA 1980), agree with petitioner that the bond appears excessive. However, our review of the record also convinces us that the interests of justice would best be served by affording the state another opportunity to present evidence on the bond issue. Accordingly, it is hereby ordered that the appellant’s petition shall be further returnable before the division of the circuit court wherein the subject charges against petitioner are pending, with specific directions that a hearing be conducted within 10 days hereof to determine the amount of bond under the guidelines set out in Good v. Wille, supra; and it is further .ordered that should such hearing not be conducted as herein ordered the appellant shall be entitled to be released upon the posting of a bond in the amount of $50,000.00.

LETTS, C. J., and ANSTEAD and GLICKSTEIN, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    William J. SHERLOCK, Appellant, v. Lorraine M. SHERLOCK, Appellee.
    No. WW-292.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1981.
    Rehearing Denied March 27, 1981.
    Frank E. Sheffield of Michaels & Sheffield, Tallahassee, for appellant.
    Felix A. Johnston of Woods, Johnston & Carlson, Tallahassee, and Richard W. Ervin and Byron S. Camp of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

McCORD and LARRY G. SMITH, JJ., and WOODIE A. LILES (Retired), Associate Judge, concur.

ON MOTION FOR REHEARING

PER CURIAM.

The wife moves for rehearing on this Court’s per curiam affirmance of her cross-appeal in this cause. Since the record reveals that arrangements, short of partition, could be worked out for the wife to purchase the husband’s remaining equity in the marital home, we are unable to find an abuse of discretion on the part of the trial judge. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Motion for Rehearing is DENIED.

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.