text:
    THE FLORIDA BAR, Petitioner, v. Robert B. BRATZEL, Respondent.
    No. 64116.
    Supreme Court of Florida.
    Jan. 19, 1984-
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Fort Lauderdale, for petitioner.
    Robert B. Bratzel, in pro. per.
   PER CURIAM.

' This matter is before the Court on Respondent’s Petition for Leave to Resign Permanently Pending Disciplinary Proceedings pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The petition states:

1. [Respondent] is and at all times hereinafter mentioned was a member of The Florida Bar subject to the jurisdiction of the Supreme Court of Florida.
2. That on the 22nd day of April, 1983, the Supreme Court of Florida in Case No. 63,526 temporarily suspended [Respondent] from the practice of law pursuant to article XI, Rule 11.10(6) of the Integration Rule of The Florida Bar.
3. That at all times incident to The Florida Bar’s investigation and processing of these complaints, [Respondent] has been aware of his right to counsel, his right to confront his accusers, his right against self-incrimination, his right to call witnesses on his own behalf, his right to a hearing before a referee appointed by the Supreme Court of Florida, and hereby acknowledges his waiver of same.
4. The following constitutes a statement of all pending complaints filed against [Respondent] with The Florida Bar:
A) In The Florida Bar Case No. 17A83F13 it is alleged that:
i) [Respondent] was the settlement agent on the sale of a condominium unit, which was one of several parcels involved in a tax deferred exchange under I.R.S. Rule 1031.
ii) Under the terms of the Contract for Sale and Purchase, the buyers were to receive a title insurance commitment and title insurance policy.
iii) After completion of the overall transaction, ten (10) months following the closing, a title insurance policy was mailed by [Respondent] to the buyers.
iv) The buyer’s attorney received the commitment which normally precedes the final title insurance policy and certain exceptions on said commitment were discussed with buyer’s attorney prior to closing.
v) [Respondent] was requested to provide an explanation as to certain exclusions on the title insurance policy, being the same as previously discussed with buyer’s attorney, and the delay in issuing same by the buyer’s out of state attorney.
vi)The explanations requested have failed to satisfy the buyer’s out of state attorney, notwithstanding the fact that the questions were about the “standard” exceptions which appear on virtually every title policy issued through United States Underwriters.
B)In The Florida Bar Case No. 17A83F33 it is alleged that:
i) [Respondent] entered into an escrow agreement with Developers of South Florida, Inc. by and through its president, R.J. Mulhern, Sr., (hereinafter referred to as “Mulhern”).
ii) Pursuant to said agreement, [Respondent] was to handle closings for Developers of South Florida, Inc., and hold deposit monies in escrow in an account labeled Sequoia Gardens Escrow Account.
iii) [Respondent] acknowledged to Mul-hern that his escrow account did not contain sufficient funds to cover a check in the amount of approximately Thirty-two Thousand Dollars ($32,000.00) that [Respondent] had issued to Cold Heading Company regarding a closing and that said funds had been used for other purposes.
iv) [Respondent’s] sworn statement was taken by The Florida Bar on or about November 18, 1983. [Respondent] stated therein that Mulhern’s business owed him monies for attorneys fees and that certain checks were written to [Respondent] from the Sequoia Gardens escrow account by [Respondent’s] office concerning attorney fees.
v) Mulhern has stated that [Respondent] was not authorized at any time to take any monies as attorneys fees from the Sequoia Gardens escrow account.
vi) [Respondent] eventually reimbursed the sum of Thirty-two Thousand Dollars ($32,000.00) to Developers of South Florida, Inc. The entire Thirty-two Thousand Dollars ($32,000.00) was to have been held in trust by [Respondent] and applied to the benefit of Cold Heading Company.
vii) [Respondent] issued a check to the trust account of the successor attorney for Developers of South Florida, Inc. re-, fleeting certain deposits held by [Respondent] in the Sequoia Gardens Trust Account.
viii) The foregoing check was dishonored for insufficient funds.
C) In The Florida Bar Case No. 17A83F50 it is alleged that:
i) [Respondent’s] law firm was retained to handle an estate.
ii) The representation was undertaken by [Respondent’s] office.
iii) Fees collected were in excess of the work which was beneficial to the client, notwithstanding that the hours expended were correctly reflected.
iv) [Respondent] agreed to refund Thirteen Hundred Dollars ($1,300.00) to the client.
v) A check drawn on [Respondent’s] regular account for that amount was presented to the client.
vi) The check was not honored by [Respondent’s] bank due to insufficient funds.
vii) [Respondent] eventually made good on the check but only after a grievance was filed against him.
viii) [Respondent’s] employment and utilization of an out of state attorney on this matter may have been violative of Disciplinary Rules 3-101(A), 3-102(A), and 3-104 of the Code of Professional Responsibility, which is being determined by an investigation by The Florida Bar.
D) In The Florida Bar Case No. 17A83F99, it is alleged that:
i) [Respondent] was retained to represent clients in the sale and assignment of a lease they had previously entered into.
ii) Subsequent to the closing on the sale and assignment of the leasehold interest, the lessor insisted that provision be made to ensure prompt payment of monthly payments due him under the lease.
iii) Under the terms of the lease, [Respondent’s] clients were still ultimately responsible for such payments.
iv) [Respondent’s] clients entrusted sufficient sums of money to the [Respondent] so that prompt payment of the monthly lease payments could be made to the lessor.
v) [Respondent’s] clients made an arrangement with him whereby [Respondent] would give a check drawn on his trust account to the lessor every month with said funds to be replaced with payments made to [Respondent’s] trust account by the assignee of the leasehold as consideration for the assignment of lease.
vi) A trust account check was rendered by [Respondent] to the lessor on behalf of his clients which was returned for insufficient funds.
vii) [Respondent] was unable to provide funds to his clients which were held in trust by him on their behalf.
viii) [Respondent] directed a letter dated January 20, 1983, to his clients wherein he admitted that he could not produce the funds which his clients had entrusted to him and which were to be held for a specific purpose.
5. To the best of [Respondent’s] knowledge and belief, no other cases or complaints are currently under investigation by The Florida Bar.
6. [Respondent] acknowledges and admits the accuracy of the allegations lodged against him as enumerated in Paragraph four (4) of this Petition.
7. [Respondent] further acknowledges and admits that certain of the foregoing allegations constitute violations of the Code of Professional Responsibility and the Integration Rule of The Florida Bar.
8. [Respondent] agrees to cooperate with any Client Security Fund investigation conducted by The Florida Bar.
9. [Respondent] hereby agrees that he will make restitution to all persons who have lost funds that were entrusted to him.
10. [Respondent] further agrees to pay the costs of The Florida Bar audit that has been instituted pertaining to alleged trust account violations.
[Respondent] hereby acknowledges that there is no basis to maintain confidentiality in this matter and acknowledges his waiver of same.
[Respondent] avers that the public interest will not be adversely affected by the granting of this petition, and that granting this petition will not adversely affect the purity of the courts nor hinder the administration of justice nor the confidence of the public in the legal profession.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Permanently on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign Permanently is hereby approved and respondent’s name is hereby stricken from the roll of attorneys in the State of Florida effective immediately.

Costs in the amount of $3,467.44 are hereby taxed against Respondent.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.


source: Caselaw Access Project

author: McDONALD, Justice.

license: Public Domain

text:
    Elwood C. BARCLAY, Petitioner, v. Louie L, WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent.
    No. 64386.
    Supreme Court of Florida.
    Jan. 19, 1984.

      Talbot D’Alemberte of Steel, Hector & Davis, Miami, and James M. Nabrit, III, New York City, for petitioner.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton,, Asst. Atty. Gen., Tallahassee, for respondent.
   McDONALD, Justice.

Barclay petitions this Court for a writ of habeas corpus and seeks relief from the affirmance of his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, subsections 3(b)(7) and (9), Florida Constitution.

We originally affirmed Barclay’s conviction and sentence in Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978), but later remanded for resentencing because of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Barclay v. State, 362 So.2d 657 (Fla.1978). On remand the trial court resentenced Barclay to death, which we affirmed. Barclay v. State, 411 So.2d 1310 (Fla.1981), affirmed, — U.S. -, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). Following the United States Supreme Court’s affirmance, Barclay then filed the instant petition in October 1983. Prior to our receiving the state’s response, however, the governor signed a death warrant for Barclay, effective for the week of January 20-27, 1984. Barclay subsequently filed an emergency application for stay of execution.

In this petition Barclay requests that we either reduce his sentence to life imprisonment or else grant him a new appeal. He makes five arguments in support of his request: 1) his appellate counsel, Ernest Jackson, had a conflict of interest in representing both Barclay and Jacob John Doug-an; 2) his appellate counsel failed to render effective assistance; 3) this Court should not uphold a death sentence when the vote is three to three on rehearing; 4) this Court improperly requested and received copies of his post-imprisonment psychological tests and interviews; and 5) this Court improperly applied the “law of the case” rule to his appeal on resentencing. Finding merit to the first two issues, we need not discuss the last three.

Conflict-of-interest cases usually arise at the trial level, but, being caused by one attorney representing two or more clients, can arise at any level of the judicial process. In general an attorney has an ethical obligation to avoid conflicts of interest and should advise the court when one arises. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). An actual conflict of interest that adversely affects a lawyer’s performance violates the sixth amendment and cannot be harmless error. Id; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Foster v. State, 387 So.2d 344 (Fla.1980). Counsel’s allegiance to a client must remain unaffected by competing obligations to other clients, and an actual conflict of interest renders judicial proceedings fundamentally unfair. United States v. Alvarez, 580 F.2d 1251 (5th Cir.1978). A conflict occurs “whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing.” Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir.1975).

The performance of Barclay’s appellate counsel meets the test set out in Fox-worth. The trial jury obviously differentiated between Barclay and his co-defendant Dougan because it recommended death for Dougan and life imprisonment for Barclay. This situation, therefore, would appear to be tailor-made for emphasizing the jury’s apparent perception of the differences between the two appellants. Jackson, however, made absolutely no attempt to draw our attention to this difference or to emphasize the rationality of the jury’s differentiation. Obviously, Jackson would have been pitting his clients against each other because Barclay could have been made to appear relatively less deserving of death only by making Dougan appear more so. Barclay, therefore, would have gained significantly if Jackson had advanced “plausible arguments that are damaging to the cause of a [co-appellant] whom counsel is also representing.” Id.

We find that Jackson had a conflict of interest in representing both Barclay and Dougan and that Barclay must have a new appeal where he is represented by conflict-free counsel. Other facts support this conclusion. Besides representing both Barclay and Dougan on appeal, Jackson represented Dougan at trial, and, apparently, the money he received for both trial and appellate representation came only from Doug-an’s father. Moreover, Jackson approached Barclay about representing him on appeal, rather than the other way around. Finally, Jackson had met Doug-an’s sister while representing her brother at trial. After beginning appellate representation of Barclay, he divorced his wife and married Dougan’s sister. Taken alone, these facts might not support the charge of a conflict of interest. Together, however, they demonstrate a much closer relationship to Dougan and his family than to Barclay, and, when considered with Jackson’s failure to make a plausible argument which well could have benefitted Barclay immensely, they support our finding a conflict of interest.

The state argues that because he requested that the trial court appoint Jackson as appellate counsel Barclay knew of and agreed to accept any possible conflict of interest. The record, however, does not support this argument. There is no evidence that Barclay was aware of a possible conflict, knew the possible effect of a conflict, or could make an effective waiver of conflict. Rather, it appears that Barclay simply accepted an offer of help without knowing, or being told, the consequences of that offer.

We also find that Jackson did not provide Barclay with effective assistance of counsel. In the original appeal Jackson filed a brief purportedly raising twenty-seven points. In fact, however, only seven of these points are argued in the brief. The others are merely listed directly from the assignment of errors which Jackson filed with the trial court on Dougan’s behalf. The brief claims that lack of time prevented more than just listing these points, but we note that Jackson received an extension of time for filing the brief and that he failed to file a reply brief. Moreover, other than the several points arguing the constitutionality of the death penalty, the points which contain discussion deal only with Dougan. Other than on the title page, Barclay’s name does not appear in this brief. The lack of apparent relation to Barclay is a spillover from the conflict-of-interest issue as is the brief's complete failure to question the propriety of Barclay’s death sentence. Moreover, the brief argues neither the inapplicability of the aggravating circumstances found by the trial court nor the possibility that the court erred in finding no applicable mitigating circumstances. Granted that Jackson filed this brief in 1976 and that the bulk of the case law concerning Florida’s death penalty has been written since that year, the most recent case cited in the original brief is Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Barclay has urged a total of thirty-one points and sub-points where Jackson’s representation on appeal fell below an acceptable standard. Cumulatively, his arguments meet the standard set out in Knight v. State, 394 So.2d 997 (Fla.1981), and we find that Barclay also suffered from ineffective assistance of counsel on appeal. In essence, due to the conflict of interest and Jackson’s ineffectiveness, Barclay had no appellate representation. We therefore grant both the petition for habeas corpus, in order to allow Barclay a new appeal, and the stay of execution.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur.

       Dougan was Barclay’s co-defendant at trial and co-appellee for their first two appearances before this court. Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Barclay v. State, 362 So.2d 657 (Fla.1978). Dougan then had a separate appeal following resentencing, Dougan v. State, 398 So.2d 439 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981), and currently has a separate petition for habeas corpus pending before this Court. Dougan v. Wainwright, No. 61,786.


author: PER CURIAM.

text:
    Anthony ANTONE, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent. Anthony ANTONE, Appellant, v. STATE of Florida, Appellee.
    Nos. 64759, 64762.
    Supreme Court of Florida.
    Jan. 20, 1984.

      Tom McCoun of Louderback, McCoun & Helinger, St. Petersburg, for petitioner/appellant.
    Jim Smith, Atty. Gen., Tallahassee, Robert J. Landry and Charles Corees, Jr., Asst. Attys. Gen., Tampa, for respondent/appel-lee.
   PER CURIAM.

Anthony Antone petitions this Court for a writ of habeas corpus, appeals from the trial court’s denial of post-conviction relief under Florida Rule of Criminal Procedure 3.850, and seeks a stay of execution. We deny all relief.

There have been several appellate proceedings concerning the conviction of Antone for first-degree murder and his sentence of death. In Antone v. State, 355 So.2d 777 (Fla.1978), this Court, without passing on the merits of Antone’s appeal, remanded for an evidentiary hearing concerning an alleged Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980), this Court affirmed, on the merits, Antone’s conviction and sentence. In Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981), Antone was a party to a petition for habeas corpus which alleged the improper use of non-record sentencing information by the Supreme Court of Florida. This petition was denied. In Antone v. State, 410 So.2d 157 (Fla.1982), this Court denied a petition for writ of coram nobis and a petition for habeas corpus, and affirmed an appeal from a denial of rule 3.850 relief. Finally, in Antone v. Strickland, 706 F.2d 1534 (11th Cir.), cert. denied, — U.S. -, 104 S.Ct. 511, 78 L.Ed.2d 699 (1983), the Eleventh Circuit Court of Appeals affirmed the United States District Court’s denial of Antone’s petition for habeas corpus relief.

In his habeas corpus petition, Antone seeks to revisit the identical issue presented to this Court in Brown v. Wainwright concerning the alleged improper use by this Court of non-record information. This issue has been disposed of by this Court in Brown and by the Eleventh Circuit Court of Appeals in Antone v. Strickland. We decline to revisit this issue.

In his petition for rule 3.850 relief, Antone asserts that his death sentence should be vacated on two grounds: (1) that he had ineffective assistance of counsel in the penalty phase of his trial, and (2) that the Florida death penalty statute, section 921.141, Florida Statutes, is unconstitutional because it excluded non-statutory mitigating circumstances between July 1976 and July 1978. Neither of these grounds has any merit. Again, both were addressed by this Court in petitioner’s prior post-conviction relief proceeding. See Antone v. State, 410 So.2d 157 (Fla.1982). We are being asked to revisit issues we have previously disposed of, and we decline to do so.

The petition for writ of habeas corpus is denied and the order of the trial court denying Antone’s motions for rule 3.850 relief is affirmed. The motion for stay of execution is denied, and no motions for rehearing will be entertained.

It is so ordered.

ALDERMAN, C.J., and BOYD, OYER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Virgil D. HAWKINS, Respondent.
    No. 61941.
    Supreme Court of Florida.
    Jan. 26, 1984.
    John F. Harkness, Jr., Executive Director, Tallahassee, Stanley A. Spring, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Virgil D. Hawkins, in pro. per.
   PER CURIAM.

This cause is before us on a petition of The Florida Bar for review of a referee’s report and recommendation. We have original jurisdiction. Art. V, § 15, Fla. Const.

Respondent is a seventy-six-year-old sole practitioner with no prior record of disciplinary convictions or grievances filed. He has been a member of The Florida Bar since 1977 having been admitted by order of the Supreme Court of Florida waiving bar examination and law school graduation requirements. In re Florida Board of Bar Examiners, 339 So.2d 637 (Fla.1976).

A complaint was filed against respondent with The Florida Bar arising out of respondent’s handling of a felony trial. The Bar Grievance Committee found probable cause that respondent had violated Disciplinary Rule 6-101(A)(l) of The Florida Bar Code of Professional Responsibility by undertaking to handle a legal matter in an area in which he lacked competency, criminal defense; that respondent had violated Disciplinary Rule 6-101(A)(3) by neglecting a legal matter, failing to convey an offered plea bargain to his client; and that respondent had violated Disciplinary Rule 1-102(A)(4) by engaging in conduct involving misrepresentation; Disciplinary Rule 1-102(A)(5) by engaging in conduct prejudicial to the administration of justice; Disciplinary Rule 7-102(A)(3) by failing to disclose that which he was required by law to reveal; and Disciplinary Rule 7 — 102(B)(2) by failing to reveal a known fraud upon a tribunal by one other than his client, all stemming from respondent’s allowing the victim’s ex-wife to testify under her previous married name without disclosing her marriage to the defendant.

The Court appointed a referee to hear the matter. The referee recommended that respondent be found guilty of violations of Disciplinary Rules 6-101(A)(l), 1-102(A)(4), 1-102(A)(5), 7-102(A)(3) and 7-102(B)(2). He recommended a finding of not guilty of violation of Disciplinary Rule 6-101(A)(3), finding insufficient evidence to support a finding that respondent had failed to convey an offer of a negotiated plea. The referee also stated, “I do not believe that any of his [Hawkins’s] actions were undertaken with the intent to deceive the court but resulted from a lack of experience.”

As discipline, the referee adopted Bar counsel’s recommendation that respondent receive a public reprimand, be placed on probation for a period of two years, during which time respondent shall not undertake the defense of any client in a criminal matter, be required to take thirty hours of Continuing Legal Education courses in criminal law, half in criminal procedure, before he undertakes any further criminal representations and that respondent associate competent co-counsel on the first five criminal cases undertaken thereafter and that he pay the costs of the proceedings. Respondent and his counsel agreed to the terms of probation and respondent did not contest the report and recommendation.

The Board of Governors of The Florida Bar approved the Findings of Fact in the report, but contests the recommended disciplinary action. The Board petitions the Court to impose a three-month-and-one-day suspension from all practice of law with proof of rehabilitation required prior to reinstatement, to be followed by a two-year probationary period during which respondent would be required to complete thirty hours of Continuing Legal Education courses in criminal law, half in criminal procedure, before he could undertake any criminal representation, that respondent associate competent co-counsel for at least five civil cases as well as five criminal cases before undertaking sole representation, and that respondent pay the assessed costs.

The findings of fact of the referee appointed to hear this matter are entitled to the same presumption of correctness as the judgment of the trier of fact in a civil proceeding. Fla. Bar Integr. Rule, art. XI, Rule 11.06(9)(a). In light of the findings of fact contained in the referee’s report, we find no justification for the imposition of the punishment requested by the Board of Governors. Respondent has been found guilty of incompetence in the handling of a felony case. The recommended discipline protects society without depriving it of the services of the respondent in civil matters. The respondent is punished, through a public reprimand and two years’ probation during which he cannot practice criminal law, but he is also rehabilitated through the requirement that he attend appropriate Continuing Legal Education seminars and associate competent counsel for five criminal cases. Attorneys who may encounter the same difficulties will be deterred from wrongdoing and instructed as to appropriate remedial measures. The referee’s recommendation serves all the goals of attorney discipline enunciated in The Florida Bar v. Pahules, 233 So.2d 130 (Fla.1970).

Therefore, Respondent Virgil Hawkins is hereby publicly reprimanded and placed on probation for a period of two years. He shall not undertake the defense of any client in a criminal matter during the period of probation. Additionally, respondent will not undertake the defense of any client in a criminal matter until he has completed thirty hours of Continuing Legal Education courses in criminal law, at least half of which shall deal with criminal procedure. Before undertaking sole representation of any client in a criminal matter, he shall associate himself with competent counsel for at least five criminal cases. Respondent is taxed for costs in the amount of $583.59.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Terry CAULEY, Appellant, v. STATE of Florida, Appellee.
    No. AS-310.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    On Rehearing Jan. 26, 1984.
    J. LaDon Dewrell, of Dewrell, Blue & Brannon, Fort Walton, for appellant.
    John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Brown v. State, 376 So.2d 382 (Fla.1979); State v. Carr, 438 So.2d 826 (Fla.1983).

MILLS, SHIVERS and ZEHMER, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

In his motion for rehearing, appellant contends that we erred in affirming this case upon the authority of Brown v. State, 376 So.2d 382 (Fla.1979), and State v. Carr, 438 So.2d 826 (Fla.1983), because the issue on appeal is dispositive of the case and this is agreed to by the state. Appellant also moves to supplement the record with a transcript from the nolo contendere plea hearing which affirmatively shows that both parties agreed that the issues reserved for appeal are dispositive.

Appellant pled nolo contendere and specifically reserved the right to appeal the trial court’s order denying his motion to suppress. We must dismiss an appeal of a criminal conviction based upon a nolo contendere plea unless the disposi-tiveness of the issues on appeal is affirmatively shown by the record. An appellant has the burden of filing a sufficient record with this court to demonstrate this fact and cannot expect to receive a favorable ruling if he does not carry that burden. Because appellant has now demonstrated to us that a ruling on the motion to suppress is dis-positive, in the interest of justice we grant his motion to supplement the record and his motion for rehearing.

During the suppression hearing, the state used two witnesses whose names had not been disclosed in response to appellant’s request for discovery. Despite appellant’s objections, the trial court failed to inquire into the circumstances surrounding the state’s failure to provide this discovery in order to determine whether appellant had been prejudiced thereby. The record contains ample support for a finding that prejudice to appellant did occur. There is no evidence in the record that appellant was aware of the identity of the two state witnesses; and without their testimony, there was no evidence sufficient to justify the detention of appellant. Appellant contends that under Richardson v. State, 246 So.2d 771 (Fla.1971), his conviction must be reversed. We agree.

Rule 3.220, Florida Rules of Criminal Procedure, sets forth provisions governing discovery in criminal cases. Rule 3.220(j), which provides the various sanctions available to a trial court if the prosecution fails to comply with the discovery rule, states that “if, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule ... the court may ...” impose sanctions. (Emphasis added.) Since a ruling on a motion to suppress is often dispositive of the case on the merits, it is just as important at a suppression hearing as at trial that the court,- upon appropriate objection by the defendant, conduct a Richardson type inquiry to determine the existence and extent of prejudice, if any, resulting from the state’s failure to provide discovery in accordance with the rule. Therefore, we conclude that the requirements of Richardson are fully applicable to a pretrial evidentiary hearing on a motion to suppress. See, Taylor v. State, 386 So.2d 825 (Fla. 3d DCA 1980); Cuciak v. State, 410 So.2d 916 (Fla.1982). Although Taylor does not explicitly hold that a Richardson inquiry must be conducted at such hearings, this requirement is certainly implicit in that decision.

Applying the Richardson rule in this case requires that we remand for a new suppression hearing because the record does not affirmatively show that appellant was not prejudiced by the state’s failure to provide him with the names of the two witnesses prior to the suppression hearing. Since, as the state agreed, granting the motion to suppress would be dispos-itive of the case, the order denying the motion must be vacated, the judgment of conviction reversed, and the ease remanded for a new evidentiary hearing on the motion to suppress. Appellant is not discharged at this time because we have not determined that the motion to suppress is well taken; that decision must be made initially by the trial court after a new hearing. We hold only that procedural improprieties denied appellant a fair pretrial evi-dentiary hearing and that such denial requires that appellant be afforded a new hearing. Under these circumstances, appellant’s nolo contendere plea is obviously no longer effective and he shall be allowed to enter a new plea upon reconsideration of the motion to suppress in accordance with this opinion.

REVERSED and REMANDED.

MILLS, SHIVERS and ZEHMER, JJ., concur.


author: DAUKSCH, Judge.

text:
    CITY OF MASCOTTE, Appellant, v. FLORIDA MUNICIPAL LIABILITY SELF INSURERS PROGRAM, Appellee.
    No. 82-1765.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    Rehearing Denied Feb. 6, 1984.

      Jacqueline R. Griffin, Orlando, Robert E. Austin, Jr., Leesburg, and William H. Stone, Clermont, for appellant.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order dismissing a motion for supplemental relief in a declaratory judgment action filed under Section 86.061, Florida Declaratory Judgments Act. Because the relief requested was sought after adjudication of the principal action for declaratory relief (and, in fact, after an appeal in that action) we agree with the trial court that the motion was filed too late.

The principal action involved the appellee seeking declaratory relief regarding its duty to defend under its insurance policy with appellant. The insurer alleged it had no duty to defend and the insured countered by saying the insurer had a duty to defend. Thus, the issue before the trial court was a clear-cut interpretation of the policy. The city lost. It took an appeal. It lost again. The courts said the insurer had no duty to defend because the insurance policy should be interpreted that way.

Now the city is attempting to come back into court and allege a reformation of the contract. Its new allegations include a claim that the city was misled into believing there would be coverage and even though the policy may not say there was coverage that the insurer should provide it any way. The rationale urged is that the insurer said there would be coverage before the policy was issued, the city bought the policy with that assurance and the insurer cannot deny that coverage even though the policy omits it.

That matter should have been brought to the trial judge in the original suit. The relief sought is in the nature of a counterclaim and under these circumstances is a compulsory counterclaim. A compulsory counterclaim is one which must be raised by a defendant in the original suit or he will be forever barred from raising it. It is a defendant’s cause of action arising out of the same transaction or occurrence as the plaintiffs action. Here the original suit was on the contract, an interpretation of it. The supplemental relief sought is also on the contract, a reformation of it.

In Florida there is no caselaw on point but in Colorado there is. See Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (1973). We disagree with the Colorado court.

In 40 Fla.Jur.2d, Pleadings § 87 there is a statement that Florida’s rules regarding counterclaims are patterned after the federal rules. We can accept that and agree with the transaction or occurrence test set out in Roberts v. National School of Radio and Television Broadcasting, 374 F.Supp. 1266, 1270 (D.C.Ga.1974):

(1) Are the issues of fact and law raised by the claim and counterclaim largely the same?
(2) Would res judicata bar the subsequent suit on defendant’s claim absent the compulsory counterclaim rule?
(3) Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?
(4) Is there any logical relation between the claim and the counterclaim?

In Roberts it was held by the district judge that an affirmative answer to any of these questions would mean counterclaim is a compulsory one. We agree and say that at least numbers 1 and 4 are applicable to this case. It is in the interest of all litigants and the courts in cases where a dispute over a contract exists that all elements of that dispute be tried and resolved at one time and not by trying one tactic, then another and still another until all approaches are made. If there is a dispute resolve it, once and for all, one way or the other. This case is a prime example of what misery can be suffered and expense incurred by multiple bites at the same apple.

The order dismissing the motion for supplemental relief is affirmed.

AFFIRMED.

SHARP, J., and SCOTT, Associate Judge, concur.


author: ZEHMER, Judge. ZEHMER, Judge.

text:
    Leon R. BARNETT, Appellant, v. STATE of Florida, Appellee.
    No. AR-183.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.
    Rehearing Denied Feb. 13, 1984.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

The issue in this case is whether the trial court erred in allowing the prosecutor to read into evidence a series of questions and answers from a criminal discovery deposition. Since the questions and answers did not properly impeach the witness, we reverse.

Appellant, Leon R. Barnett, was found guilty of grand theft of travelers checks having a value exceeding one hundred dollars. At his jury trial on January 25, 1983, the state called as a witness one Gilchrest. When asked if she went to Mobile, Alabama, with the defendant and two other persons in July 1982, she answered “No.” At that point, the prosecutor pulled out a discovery deposition of the witness taken on November 16, 1982, read certain questions and answers from the deposition, and asked Gilchrest if she recalled being asked those questions and giving those answers. Gilchrest said she did not remember the questions and answers. The prosecutor continued to read her deposition testimony concerning different events on the trip to Mobile, and the witness consistently maintained that she did not recall the questions or answers. Gilchrest admitted she made a trip to Mobile with a friend (not defendant) and remembered attending her deposition in November, but could not remember what happened. The state moved that Gilchrest be deemed a court witness, and such motion was granted. The court then denied the prosecutor’s motion to introduce the deposition into evidence; nevertheless, over defendant’s objection, the court permitted the prosecutor to continue reading a number of questions and answers into evidence, asking the witness if she recalled each question and answer, and every time receiving the same denial.

The court did not explain its reason for permitting the deposition to be used in this manner. Obviously it was not useful to refresh the witness’s recollection. Nor were the questions and answers properly read as an effort to impeach the witness as no predicate for impeachment was laid. The witness professed to have been under the influence of drugs on the trip to Mobile, as well as when the deposition was taken, and she did not testify at trial to any substantive facts concerning the trip. The import of her testimony was simply, “I do not remember.”

We can only conclude that the deposition testimony was received in evidence as substantive proof of the matters covered therein, and it appears to have been given such effect by the jury. The state’s brief recognizes this to be the case, as it defends the trial court’s ruling by arguing that the witness was, because of her lack of memory, an unavailable witness, thereby making her deposition admissible as substantive evidence pursuant to the “former testimony exception” to the hearsay rule in Section 90.804(2)(a), Florida Statutes (1981). The state attempts to distinguish the cases relied upon by appellant by pointing out that such cases were decided prior to adoption of this “former testimony exception” in the evidence code.

Our decision in this case is governed by Terrell v. State, 407 So.2d 1039 (Fla. 1st DCA 1981). At the trial of that case, the state read the contents of a criminal discovery deposition into evidence when it was determined that the witness was unavailable for trial. On appeal the state argued that introduction of the deposition was proper under the former testimony exception to the hearsay rule in Section 90.-804(2)(a). The state also attempted to distinguish the cases relied upon by the defendant by arguing, as it has here, that such cases were decided before the adoption of the evidence code. Rejecting this argument, we held that the criminal discovery deposition was inadmissible as substantive evidence because Rule 3.220(d), Florida Rules of Criminal Procedure, limits the use of a criminal discovery deposition at trial solely to impeachment of the witness and that Section 90.804(2)(d) does not justify admission of discovery deposition testimony as substantive evidence contrary to the limited use provisions in Rule 3.220(d). Deposition testimony to be used at trial must be taken in accordance with Rule 3.190(j), Florida Rules of Criminal Procedure.

The deposition in this case was taken for discovery purposes only, without defendant being present and without complying with Rule 3.190(j). Accordingly, it was error to allow the prosecutor to read the deposition in the manner and for the purpose described. Because this deposition testimony was the principal evidence directly implicating appellant in the criminal transaction charged, we must presume that it affected the outcome of the trial. Thus, this error was prejudicial to appellant’s right to a fair trial and cannot be treated as harmless.

Regarding the other issues urged by appellant, we find no abuse of discretion in the circuit court’s denial of the motion in limine seeking to exclude evidence of defendant’s drug usage. Additionally, we find that the court, at the time it made its ruling, did not abuse its discretion in denying appellant’s motion for judgment of acquittal. By this finding, however, we do not intimate any opinion as to the sufficiency of the evidence on retrial pursuant to our ruling on the evidentiary question herein presented.

The judgment is reversed, and the case is remanded for a new trial.

REVERSED and REMANDED.

MILLS and SHIVERS, JJ., concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

Both the state and appellant, Barnett, filed motions for rehearing and rehearing en banc. Appellant asserts a potential conflict exists with this court’s decision in Warren v. State, 443 So.2d 381 (Fla. 1st DCA 1983), in which the burglary convictions of Barnett’s coparticipants were reversed for lack of evidence to prove the burglary charges. Appellant’s motion, however, was not timely filed pursuant to rule 9.330, Florida Rules of Appellate Procedure. Both motions are denied.

By way of clarification, we point out that the decision in Warren v. State, supra, was filed after the decision in this case. If any conflict exists, Warren is in conflict with this decision, not vice versa; accordingly, this decision is not subject to en banc proceedings under appellate rule 9.331. No motions for rehearing have been filed in Warren. In any event, Barnett was tried separately from Warren and Wilkerson, and the evidence in this case was different from that presented in Warren v. State, supra. Our decision that the evidence was sufficient to withstand Barnett’s motion for judgment of acquittal was based upon the evidence before the trial court at the time it made its ruling, including testimony elicited through the improper use of a deposition of a critical witness, which we held to be inadmissible. We did not pass upon the sufficiency of the evidence in the absence of such improper testimony. Should the state elect to retry Barnett, the state may or may not present additional competent evidence in support of the charges against appellant, and at that time the trial court can pass upon the sufficiency of that evidence in light of the decision in Warren v. State, supra, and other pertinent cases.

The motions for rehearing are DENIED.

MILLS and SHIVERS, JJ., concur.

      . Rankin v. State, 143 So.2d 193 (Fla.1962); State v. James, 402 So.2d 1169 (Fla.1981); Hill v. State, 355 So.2d 116 (Fla. 4th DCA 1978).


text:
    Jose Manuel GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 82-422.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    Rehearing Denied Feb. 1, 1984.

      Edward R. Kirkland, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction for the crime of armed robbery. The appellant asserts that the evidence was insufficient to sustain a conviction. The evidence is quite sufficient and we affirm the conviction and sentence. We also find no merit in the appellant’s assertion that it was error to admit a firearm into evidence at trial.

Although the appellant did not raise the point on appeal, we notice he was convicted both of armed robbery and the lesser included offense of possession of a firearm in the commission of a felony. Because a double jeopardy defense can be waived and because appellant failed to raise the defense, we are bound to affirm the conviction (there was no sentence under the firearm conviction). See, Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981); Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980); Bell v. State, 262 So.2d 244 (Fla. 4th DCA 1972).

However, we do certify to the Florida Supreme Court a question of great public importance which is inherent in this case, to-wit: Whether one can be convicted, although not sentenced, of a lesser included offense after he has been convicted of the greater crime. State v. Monroe, 406 So.2d 1115 (Fla.1981) and State v. Hegstrom, 401 So.2d 1343 (Fla.1981) say one can be convicted but not sentenced for the lesser included offense. Additionally, State v. Gibson, No. 61,325 (Fla. February 17, 1983) [8 FLW 199] held that separate sentences for the offenses of robbery with a firearm and possession of a firearm were not authorized, even though separate convictions were proper.

After those decisions, the Florida Supreme Court announced in Bell v. State, 437 So.2d 1057 (Fla.1983) that sentences and convictions for both a greater and lesser included offense arising out of the same occurrence are prohibited. However, the court in Bell did not address or expressly recede from its holding in State v. Gibson. After Bell, the court in Hawkins v. State, 436 So.2d 44 (Fla.1983) held that the defendant could not be separately sentenced for the underlying felony in a felony murder case but allowed the conviction to remain intact. It appears to us that the Hawkins decision may have been mistakenly issued and was not intended to be the latest pronouncement of the supreme court on double jeopardy. Contra, Judge Nesbitt’s dissent in Boivin v. State, 436 So.2d 1074 (Fla. 3d DCA 1983). This dissent refers to Hawkins as a lesser included offense conviction as opposed to an underlying felony conviction, but we see no substantial difference. The real question remains: which case establishes the final binding precedent for Florida courts?

Counsel are reminded that the supreme court will not take jurisdiction unless a petition is timely filed.

AFFIRMED.

SHARP, J., and MIZE, Associate Judge, concur.


author: COWART, Judge.

text:
    GRAHAM CONTRACTING, INC., a Florida corporation, Petitioner, v. FLAGLER COUNTY, Respondent.
    No. 83-1256.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    Rehearing Denied Feb. 9, 1984.
    Ernest H. Eubanks of Pitts, Eubanks & Ross, P.A., Orlando, for petitioner.
    Noah C. McKinnon, Jr., Bunnell, and Cynthia S. Tunnicliff of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for respondent.
   COWART, Judge.

This case involves a contractual right to have disputes arising out of the contract resolved by arbitration and whether that right has been impliedly waived under the circumstances.

Petitioner, Graham Contracting, contracted with Flagler County to build an addition to the Flagler County Courthouse. The contract required arbitration of “all claims, disputes and other matters in question between the parties ... arising out of or relating to this agreement or the breach thereof.” The contract also required that a demand for arbitration be made “within a reasonable time after the claim, dispute or other matter in question has arisen.”

Graham Contracting commenced work in May of 1982. On June 22, 1982, while pilings were being installed to support the addition to the courthouse, the foundation of the existing courthouse shifted, damaging the old courthouse. Flagler County instructed Graham Contracting to cease work until further notice. On December 22, 1982, Flagler County served a complaint on Graham Contracting. On January 11, 1983, Graham Contracting served a motion to dismiss the complaint for failure to state a cause of action. On March 31, 1983, a meeting between Graham Contracting and Flagler County was held to discuss completion of construction. Graham Contracting was advised that Flagler County would request completion of construction. On April 13, 1983, Graham Contracting submitted documentation of additional costs that it would incur due to the delay in construction caused by the county instructing Graham Contracting to cease work in June of 1982. Flagler County refused to pay these additional costs and Graham Contracting served a demand for arbitration pursuant to the contract. On April 29, 1983, Graham Contracting filed a motion in the trial court to compel arbitration. On May 16, 1983, a hearing was held on Graham Contracting’s motion to compel arbitration and on its earlier filed motion to dismiss for failure to state a cause of action. The trial court dismissed Flagler County’s first complaint but denied Graham Contracting’s motion to compel arbitration. Graham Contracting then filed this petition for writ of certiorari. We grant the petition.

In the instant case, the contract required that the demand for arbitration be made “within a reasonable time after the claim, dispute or other matter in question has arisen.” The trial court found that a dispute became apparent on June 22, 1982, when the foundation of the old courthouse shifted and Graham Contracting was told to cease work until further notice. The court then found that Graham Contracting’s demand for arbitration made ten months later was not made within a reasonable period of time, relying on Lyons v. Krathen, 368 So.2d 906 (Fla. 3d DCA 1979), cert. den., 378 So.2d 346 (Fla.1979), and Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA 1970), cert. dismissed, 238 So.2d 110 (Fla.1970). In Lyons v. Krathen a written demand was made on a contractor to correct certain defects. The contractor waited nine months after the demand before filing a motion to compel arbitration. In Bickerstaff v. Frazier, the owners were put on notice of a dispute as to the amount due the contractor for final payment under the contract when the contractor served and recorded his claim of lien for labor and materials furnished under the construction contract. The court held the owners waived their right to arbitrate by waiting until four months later to demand arbitration. By contrast, in the instant case no claim was made, and no dispute arose, on June 22, 1982, when Graham Contracting was told to cease work until further notice. The contract does not require the demand for arbitration be made merely because it has become apparent that there is a potential dispute between the parties. The dispute between the parties first crystallized on December 22, 1982, when Flagler County served its complaint on Graham Contracting. While Graham Contracting’s initial demand for arbitration was not filed until April 13, 1983, nearly four months later, we do not believe that four months is, as a matter of law, an unreasonable delay. We note that the third and fourth district courts of appeal have adopted the view that the issue of whether a demand for arbitration is timely according to the meaning of the contract is a question to be decided in arbitration. See Federated Department Stores, Inc. v. Pavarini Construction Company, Inc., 425 So.2d 1212 (Fla. 4th DCA 1983); Rinker Portland Cement Corp. v. Seidel, 414 So.2d 629 (Fla. 3d DCA 1982). We believe that a waiver of the right to arbitrate should not be implied from mere inaction unless the delay has given the party seeking arbitration an undue advantage or has resulted in prejudice to another. See Carcich v. Reden A/B Nordie, 389 F.2d 692 (2d Cir.1968).

Respondent also contends that Graham Contracting waived its right to arbitration by filing its motion to dismiss Fla-gler County’s complaint for failure to state a cause of action. In R.W. Roberts Construction Company v. Masters and Company, 403 So,2d 1114 (Fla. 5th DCA 1981), this court held that a defendant had waived its right to arbitrate by filing a motion to dismiss and to transfer the cause of action based on a contractual venue clause.

Petitioner’s motion to dismiss and transfer the action is a contention that the proceeding is in the court of the wrong county, not that it doesn’t belong in court at all. This position seems totally inconsistent with petitioner’s later assertion that no court was the proper forum, because arbitration was appropriate.

Id. at 1115.

See also, King v. Thompson and McKinnon, Auchinschloss, Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977) (arbitration waived by filing answer and cross-claim, arbitration issue not raised until interrogatories were served); Gettles v. Commercial Bank at Winter Park, 276 So.2d 837 (Fla. 4th DCA 1973) (arbitration waived where plaintiff filed suit, defendant counter sued, plaintiff filed motion to dismiss counterclaim and one week later plaintiff filed demand for arbitration); Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. 3d DCA 1969); Mike Bradford and Company, Inc. v. Gulf States Steel Company, Inc., 184 So.2d 911 (Fla. 3d DCA 1966) (right to arbitrate waived where steel company, with full knowledge of its rights, answered complaint without raising issue of arbitration, counterclaimed upon the same contract, allowed cause to proceed for five and one-half months and allowed jury to be empanelled before demanding arbitration). In none of the above cases has it been held that the filing of a motion to dismiss for failure to state a cause of action, without more, constituted a waiver of the right to arbitrate. The failure of a complaint to allege occurrence of a condition precedent of arbitration could be argued as the reason a complaint fails to state a cause of action.

Thus, in the instant case, there is no basis in the record for a finding of a waiver of the right to arbitrate through delay in asserting that right and the filing of a motion to dismiss Flagler County’s complaint for failure to state a cause of action is not so inconsistent with the right to arbitrate that a waiver may be implied therefrom. Therefore, we quash the order of the trial court which denied Graham Contracting’s motion to compel arbitration.

QUASHED.

DAUKSCH and SHARP, JJ., concur.

      . This court has previously held that a petition for writ of certiorari is an appropriate method to review an order denying a motion to compel arbitration. Paine, Webber, Jackson & Curtis, Inc. v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982).

        . Cf. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968).
      It is not "inconsistency,” but the presence or absence or prejudice which is determinative of the issue. As an abstract exercise in logic it may appear that it is inconsistent for a party to participate in a lawsuit for breach of a contract, and later to ask the court to stay that litigation pending arbitration. Yet the law is clear that such participation, standing alone, does not constitute a waiver, Chatham Shipping Co. v. Fertex Steamship Corp., 352 F.2d 291, 293 (2d Cir.1965) (filing complaint not waiver); Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, 239 F.2d 689 (4th Cir.1956) (asserting counterclaim not waiver); Rootes Motors, Inc. v. S.S. Carina, 1964 A.M.C. 2754 (S.D.N.Y.1964) (filing answer without mentioning arbitration not waiver), for there is an overriding federal policy favoring arbitration. Waiver, therefore, is not to be lightly inferred, and mere delay in seeking a stay of the proceedings without some resulting prejudice to a party ... cannot carry the day. (footnotes omitted)


text:
    ARCHITECTURAL RESEARCH, INC., and John Stetson, Appellants/Cross-Appellees, v. Mary STETSON, Appellee/Cross-Appellant.
    No. 82-743.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Rehearing Denied Feb. 23, 1984.

      Johnston, Sasser, Randolph & Weaver and Jane Kreusler Walsh and Larry Klein, West Palm Beach, for appellants/cross-ap-pellees.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

We find no error by the trial court in finding against the appellant, John Stetson, on his affirmative defense of res judicata on the appellee’s claim for an accounting from the appellant as the chief fiduciary officer of Architectural Research, Inc., a corporation in which the appellee, in prior dissolution proceedings, had been determined to have a one-half ownership interest. We do not believe the appellee was required to litigate her accounting claim against the appellant Stetson in the dissolution proceedings, and we also do not find that the appellant Stetson sufficiently established in the record that such a claim was actually litigated in the dissolution proceedings so as to mandate the trial court’s acceptance of the res judicata defense. Cf. Holley v. Hayes, 412 So.2d 920 (Fla. 1st DCA 1982). We also find no error by the trial court in receiving testimony from the witness, Stephen Barry, or in determining, contrary to the appellee’s contentions on cross-appeal, that the appellant Stetson had properly claimed a fee for architectural services from the corporation, and in determining that appellee was not entitled to attorney’s fees.

The judgment of the trial court is affirmed.

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


text:
    Michael TURNER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 82-1350, 83-2011.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1983.
    As Amended on Denial of Rehearing Feb. 14, 1984.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand and Richard E. Doran, Asst. At-tys. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

One Gregory Lattimer purporting to be a member of the Florida Bar secured a position as an assistant state attorney. While he was employed, he signed as “assistant state attorney” an information charging the appellant with the crime of burglary, which allegedly occurred between December 1, 1981 and January 4, 1982. The appellant was ultimately convicted and an appeal seeking review of this conviction is presently pending under clerk’s file numbered 82-1350. That appeal was dismissed by this court in June 1982 for failure to file appellant’s brief without prejudice to seek a belated appeal pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1970). The appeal was reinstated by this court on August 6, 1982. During the period in which the aforementioned appeal was dismissed, the appellant filed in the trial court a motion to vacate pursuant to Rule 3.850 Florida Rules of Criminal Procedure, which was denied. That order is the subject matter of an appeal pending under clerk’s file numbered 83-2011.

We find that the original information was a nullity and void, having been filed by an “imposter” posing as an assistant state attorney, therefore the trial court erred in denying the Rule 3.850 motion and we hereby reverse this order of denial and do hereby vacate the original conviction and sentence and the cause is remanded for further proceedings. See and Compare: Dobson v. State, 434 So.2d 332 (Fla. 3d DCA 1983).

Reversed and remanded with directions.

      . It is conceded that Lattimer was an "imposter” and that this fact was not known to the state or defense until after Turner’s trial.


text:
    David L. REID, Appellant, v. STATE of Florida, Appellee.
    No. 82-558.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Rehearing Denied Feb. 23, 1984.
    Joseph S. Karp of Bernstein, Narkier, Sharff, Monchick & Karp, West Palm Beach, for appellant.
    Paul H. Zacks, Asst. State Atty., Ft. Lauderdale, and David Wolpin, County Atty., West Palm Beach, for appellee.
   PER CURIAM.

David L. Reid was duly convicted of criminal offenses upon trial by jury. He appeals and presents eight appellate points. We have carefully considered the assertions, singly and jointly, in light of the briefs and oral argument. We are firmly of the opinion that no reversible error has been committed. Moreover, we feel that the points are of such nature as to not require a detailed analysis.

AFFIRMED.

GLICKSTEIN and WALDEN, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: OTT, Chief Judge.

text:
    Lennart J. FERM, Mary Lou Garrison, and Karen L. Conway, Appellants, v. John M. SABA, Jr., and Marilyn M. Saba, Appellees.
    No. 82-2821.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1983.
    Rehearing Denied Feb. 16, 1984.
    Richard V. Harrison, Sarasota, for appellants.
    Richard E. Nelson and Omer S. Causey of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for appellee, John M. Saba, Jr.
   OTT, Chief Judge.

Appellants appeal from an order granting appellees’ motion for summary judgment. They also contend that the trial court erred in sua sponte awarding attorney fees of $43,500 to appellees under section 57.105, Florida Statutes (1981).

Appellants filed a two-count complaint, seeking: (1) a clear title to Lot 27, Block 18 of the Sarasota Beach Subdivision which is Gulf-front property on Siesta Key, and (2) to collect damages against appellee John Saba, Jr. (“Saba”), only for slander and disparagement of title.

In May, 1965, appellant Ferm acquired Lot 27. Appellees acquired Lot 6 of the Sarasota Beach Subdivision from Chester Newell and Lucia Newell in May, 1969. Lot 6 is located immediately upland of Lot 27. The Newells reserved a nonexclusive easement over Lot 6 for purposes of beach access. In July, 1969, the Newells executed a quitclaim deed in favor of appel-lees, conveying any interest held by the Newells on property located between Lot 6 and the Gulf of Mexico. According to Chester Newell, it was appellees’ attorney’s idea to have the quitclaim deed drawn and executed. Apparently, appellees believed that Lot 27 had been completely submerged under the Gulf of Mexico, reappeared, and that, therefore, title to Lot 27 could have accreted to the record owners of Lot 6. In November, 1969, the easement was modified, granting the Newells a nonexclusive easement over the southerly three, feet of Lot 6 for purposes of ingress and egress to the waters of the Gulf. During the same month, appellees conveyed Lot 6 to Gene Stirling, Rebecca Stirling, and John Stirling by warranty deed. By quitclaim deed, appellees conveyed to the Stirlings their interest in the property between Lot 6 and the Gulf of Mexico. The aforementioned deeds and easements were recorded.

During 1979, appellant Ferm deeded Lot 27 to the joint names of the three appellants. Shortly thereafter, appellants’ agent applied for a variance from Sarasota County Ordinance 79-03, which prohibits construction seaward of the Coastal Construction Control Line. At a hearing before the Board of County Commissioners, appellee Saba, who was elected to the Board in 1971, queried whether appellants had good title to Lot 27. He noted his ownership of the upland property prior to becoming a member of the Board and his recollection of complete submersion of Lot 27 at one time. The variance application was subsequently denied.

Prior to filing this lawsuit, appellants acquired quitclaim deeds from appellees’ grantees as to any interest they held in property located seaward of Lot 6. Shortly after the suit was filed, appellant acquired quitclaim deeds from Chester Newell and’ Sun-Key Properties, Inc., as to any claims the easement holders might have over Lot 27 for purposes of ingress and egress to the Gulf of Mexico.

It should also be noted that considerable uncertainty existed among the bench, bar, and title insurance companies of Sarasota County, including appellee Saba’s attorney, as to the title of coastal lands that had been at any time submerged under the waters of the Gulf of Mexico. There was even some reservation concerning whether or not the law of this subject was settled by this court in Kruse.

As previously mentioned, the trial court granted appellees’ motion for summary judgment and awarded attorney fees of $43,500 to appellees. Although we do not disagree with the grant of summary judgment under the law of Kruse and the facts as developed by the parties’ extensive pretrial discovery, we do find error in the award of attorney fees.

Section 57.105 provides for the award of attorney fees to the prevailing party if the court determines that there is a “complete absence of a justiciable issue” raised by the opposing party. An award of fees under this section is proper only where the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. Appenfeldt v. Quinn, 399 So.2d 1026 (Fla. 2d DCA 1981). Because of the situation created by appellees, this lawsuit was not spurious and completely untenable. In fact, we believe that appellants chose the safest and perhaps only logical course of action to settle any lingering doubt as to the status of their ownership in Lot 27. We also note that even the question of whether appellee Saba slandered or disparaged the title to Lot 27 was not altogether frivolous. Appellees did not move for attorney fees prior to the trial court’s sua sponte grant of such fees nor did they move to dismiss the suit for failure to state a cause of action. Given the facts of this case, we feel the trial court’s sua sponte award of attorney fees under section 57.-105 was unwarranted. Accordingly, the award of attorney fees is hereby STRICKEN.

AFFIRMED as modified.

GRIMES and CAMPBELL, JJ., concur.

      . See generally Kruse v. Grokap, Inc., 349 So.2d 788 (Fla. 2d DCA 1977), where another upland property owner in the Sarasota Beach Subdivision sought unsuccessfully to acquire title to seaward property by application of the doctrine of accretion.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    D.L. AMICI COMPANY and American Mutual Insurance Company, Appellants, v. James JACKSON, Appellee.
    No. AQ-362.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.
    Rehearing Denied Feb. 13, 1984.
    Stephen E. Tunstall of Underwood, Gillis, Karcher & Valle, Miami, for appellants.
    Richard A. Sadow of Sadow, Lynne & Gonzales, North Miami, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a compensation order contending that the deputy commissioner (deputy) erred in awarding wage loss benefits from January 28, 1982 to May 1, 1982 because claimant was laid off on January 27, 1982 as a result of economic conditions, not as the result of physical limitations related to his accident. We reverse.

The distal phalanx of claimant’s right fifth finger was amputated in a compensa-ble accident on September 3, 1981 while claimant was laying water pipe. Dr. Na-dler, an orthopedist, first saw claimant on September 3, 1981 at the hospital and performed the primary repair. The severed tip of claimant’s finger was not sutured back onto his finger. Claimant remained in the hospital for several days for intravenous antibiotics and observation. On September 25, 1981 Dr. Nadler recommended to the claimant that he return to light duty work. When he saw claimant on October 23, 1981 for a final examination, he determined that claimant had reached maximum medical improvement (MMI) on that date, and released him to return to his regular work without restrictions. Dr. Nadler gave claimant a three percent permanent impairment rating.

Claimant returned to work with the employer on October 10, 1981 at the same rate of pay he was making prior to the accident and worked until January 27, 1982, when he was laid off because of the employer’s shortage of work. Claimant subsequently filed a claim for wage loss benefits from January 28, 1982 to the date of the claim and continuing. The E/C controverted the claim for wage loss benefits on the grounds that claimant’s unemployment was due to economic reasons rather than to his injury from the industrial accident. At the hearing claimant testified he made a job search from the time of his discharge until May 1982. However, he did not look for any jobs after May because he felt he had a good chance of obtaining a job with the post office where he had an application pending. The employer’s payroll supervisor testified that claimant, along with two others, was discharged in January 1982 because a stoppage of the kind of work claimant was doing necessitated that three people be discharged. The payroll supervisor further testified that they were pleased with claimant’s performance after he returned to work in October 1981, following the accident, and that he was not discharged because of his injury. The deputy found that the claimant had made a good faith attempt to secure employment and had conducted a good faith job search from January 28, 1982 through May 1, 1982 and awarded wage loss benefits for that period of time. He further found that the claimant had not made an adequate and good faith attempt to secure employment subsequent to May 1,1982, and denied wage loss benefits subsequent to May 1, 1982 until claimant again met his burden of conducting a good faith job search. With regard to the claim for wage loss benefits, the deputy specifically found “that the Claimant worked for the Employer herein, although in pain and discomfort on manhole covers rather than on pipe fitting until he was layed [sic] off due to economic reasons.” (emphasis added).

The E/C, relying on Citrus Central v. Parker, 423 So.2d 610 (Fla. 1st DCA 1982) and Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), pet. for rev. den., 431 So.2d 989 (Fla.1983) contend that an injured claimant who receives a disability rating and returns to the same job making the same money after the accident and who is subsequently laid off for economic reasons, is not entitled to wage loss benefits. Citrus Central and this case are almost factually indistinguishable. In each case after reaching MMI, the claimant returned to work for the employer by whom he had been employed at the time of the accident at the same or a greater wage until being discharged for economic reasons. Citrus Central found there was no evidence to support the finding that claimant’s layoff had any causal connection to his prior injury or subsequent partial disability and limitations. Accordingly, the award of wage loss benefits was reversed. In this case there is no evidence in the record to support a finding that claimant’s layoff was a result of anything other than economic or business conditions or that it was in any way related to his injury. Since there is no causal connection between the claimant’s discharge and his injury, the award of wage loss benefits must be reversed.

Claimant contends that although the E/C rely on Regency Inn, they did not quote the following language from Regency Inn:

We hold that the unavailability of jobs due to economic conditions does not preclude recovery of wage loss benefits, and, accordingly, it is not necessary for a wage loss claimant to present evidence that his refusal for employment was not due to unavailability of jobs resulting from economic conditions.

422 So.2d at 879.

Regency Inn interpreted § 440.-15(3)(b)2., Fla.Stat. (1979), which specifically places the burden “on the employee to establish that any wage loss claimed is the result of the compensable injury,” as requiring the employee to go forward with evidence that a change in his employment status was due to the injury and that he had made an adequate good faith attempt to secure employment commensurate with his ability. Once the employee presents such evidence, the employer has the burden of proving that the employee has refused work or voluntarily limited his income.

The claimant did not meet his initial burden of showing that his change of employment was due to his injury. In Regency Inn the claimant was advised by her doctor to seek lighter work because of her injury. In this case the claimant's change of employment status was due to economic conditions that resulted in a shortage of work by the employer and no need for his services. The claimant therefore would not qualify for wage loss benefits under Regency Inn.

The award of wage loss benefits is reversed and the question of attorney’s fees is remanded to the deputy for reconsideration of the amount to be awarded.

REVERSED.

NIMMONS, J., concurs.

ERVIN, C.J., specially concurs.

ERVIN, Chief Judge,

specially concurring.

A great potential for abuse may be created by our court’s decisions in both this case and in Citrus Central v. Parker, 423 So.2d 610 (Fla. 1st DCA 1982), if these opinions are understood to say that an employer’s submitted reason for a dismissal conclusively determines the issue of a claimant’s entitlement to wage-loss. Such an interpretation would aid an unscrupulous employer, who advances the stratagem that the employee’s layoff was occasioned solely by economic motivations, and was completely unrelated to the work-related injury, to avoid his responsibilities to pay wage-loss benefits to a permanently impaired worker. In my judgment the deputy commissioner still has the right to weigh the economic-motive explanation offered by the employer for the worker’s termination, against other evidence suggesting that the discharge may have been otherwise.

I therefore maintain that this court’s opinions do not preclude deputies from rejecting an employer’s bald assertions of economic layoffs unrelated to injury; if the weight of the evidence convinces them that the offered assertion is nothing more than a sham. Such evidence might include, for example, the short length of time between the worker's return and his discharge, the extent of the permanent impairment, the fact that the physically impaired employee was the only one of a relatively large work force to be terminated, and any physical limitations imposed by the treating physician upon the employee’s resumption of work.

The order now before us, however, apparently accepts the employer’s reason for the layoff as having been offered in good faith, but nevertheless finds that the employee was entitled to wage-loss only because he had suffered some degree of permanent impairment which had lasting, residual effect. This fact alone, under Citrus Central and the majority’s opinion, is not sufficient evidence enabling the employee to meet his burden “that any wage loss claimed is the result of the compensa-ble injury.” § 440.15(3)(b)2, Fla.Stat. (1981).

I have additional reservations about the effect of the majority’s opinion which is susceptible to the interpretation of precluding all compensation for wage-loss at any time in the future without regard to a change in circumstances. Entitlement to wage-loss, of course, must be determined on a monthly basis. See Section 440.-15(3)(b), Florida Statutes (1981). I strongly doubt that the majority intends to bar in perpetuity any such request simply because a layoff is attributable to a reason other than industrial injury. In my judgment the majority’s opinion is more properly read as holding that the unrelated layoff in such context prevents an assumption (without proof) that the injury or its residuals contributes to the unsuccessful ensuing job search. Stated more simply, our decision, like that in Citrus, rests on the basic statutory requirement that wage-loss claimed for any month shall be “the result of the compensable injury.” § 440.15(4)(b), Fla.Stat. This court’s articulation of the claimant’s prima facie burden in Regency Inn v. Johnson, 422 So.2d 870, 876 (Fla. 1st DCA 1982), pet. for rev. den., 431 So.2d 989 (Fla.1983), emphasized the need for evidence on both work search and “a change in employment status due to the injury.” (e.s.) It seems clear that a compensable injury may in many circumstances contribute to either the commencement or continuance of a period of unemployment. As a matter of simple logic, then, proof of an unrelated commencement of unemployment (layoff) should not foreclose the issue of causal connection for a later wage-loss request, although such a circumstance may no doubt be pertinent. Regency’s reference to a causally connected “employment status” would certainly permit proof that an injury contributed to wage-loss during a period of continued unemployment, even where an unrelated layoff may have initiated that status. Lasher Milling Co. v. Brown, 427 So.2d 1034 (Fla. 1st DCA 1983).

With the reservations I have expressed, I concur in the result reached by the majority.

      . The treating physician assessed a permanent impairment rating of three percent.


text:
    Frederick Edward LEO, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 82-1320.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    Rehearing Denied Feb. 3, 1984.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction for dealing in stolen property. A review of the evidence leads us to the conclusion that the evidence at trial was legally insufficient and the trial court erred in not entering a judgment of acquittal. Tibbs v. State, 397 So.2d 1120 (Fla.1981).

REVERSED.

ORFINGER, C.J., and DAUKSCH and COBB, JJ., concur.