author: PER CURIAM.

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. 64742.
    Supreme Court of Florida.
    Jan. 26, 1984.
   PER CURIAM.

Pursuant to article V, section 9 of the Florida Constitution, and in accordance with the criteria, additional factors, and procedures set forth in Florida Rule of Judicial Administration 2.035, we hereby certify the need for thirty-three additional judgeships during fiscal year 1984-85, as follows:

District Court Circuit Court County Court

Second Appellate District 03

Third Appellate District H

Fourth Appellate District 03

Fifth Appellate District t — I

1 Second Judicial Circuit

1 Fourth Judicial Circuit

1 Fifth Judicial Circuit

1 2 (Pinellas, Pasco) Sixth Judicial Circuit

1 Eighth Judicial Circuit

1 1 (Orange) Ninth Judicial Circuit

1 Tenth Judicial Circuit

3 (Dade) Eleventh Judicial Circuit

(Sarasota) Twelfth Judicial Circuit

1 (Hillsborough) Thirteenth Judicial Circuit

1 (Palm Beach) Fifteenth Judicial Circuit

(Broward) Seventeenth Judicial Circuit

(Seminole) Eighteenth Judicial Circuit

(Indian River) Nineteenth Judicial Circuit

Twentieth Judicial Circuit

14 13 TOTALS

On February 17, 1983 we certified the need for a total of twenty-seven new judge-ships during the 1983-85 biennium. The Legislature, however, did not fund any additional judgeships during the 1983 legislative session. We have now received a total of thirty-nine requests for new judgeships from the various Chief Judges, representing a renewed request of the twenty-seven previously certified, but unfunded, judge-ships and additional requests for twelve judgeships.

FINDINGS

DISTRICT COURTS OF APPEAL

In 1979 the Appellate Structure Commission recommended a standard of no more than 250 primary assignment cases for each appellate judge. In reality, each judge’s case load would be three times the number of primary assigned cases because district courts sit in panels of three and each judge has two secondary case assignments for each primary assignment. All of the district courts presently exceed this standard. In order to ensure the integrity of the appellate process, this excessive case load should be reduced, as soon as practical, to the standard recommended by the Appellate Structure Commission. Case load comparisons for the intermediate appellate courts of the ten most populous states indicate that Florida’s district courts of appeal in 1982 had the second highest total filings, the third highest ratio of filings per judge, and the greatest number of published opinions.

First Appellate District. The First District, which currently has twelve judges, has not requested any additional judges this year. To achieve the 250 primary case assignment standard in 1984, the First District would need additional judges. It would not have been unreasonable for the First District to request that we certify its need for these additional judges. The First District, however, has expressed administrative concerns about expanding beyond its current membership. Additionally, between 1981 and 1983 there has been a decrease in the number of filings in the First District. It is for these reasons that we have not been requested to certify the need for the additional judges which would be required for the First District to achieve the 250 primary case assignment standard in 1984.

Second Appellate District. The Second District currently has ten judges, and the need for two additional judges in 1984 is certified. This certification confirms our previous finding for the biennium which was made in 1983.

Although filings in 1983 have been reduced due to vacancies existing on the circuit bench within the jurisdiction of the Second District, projections for 1984 indicate the Second District will have the third highest total case load and will continue to have the highest total population of all the five appellate districts. In order to move towards achieving the 250 case assignment standard in 1984, two additional judges are certified.

Third Appellate District. The Third District currently has nine judges, and the need for one additional judge is certified.

The Third District has the highest ratio of filings and dispositions per judge, and there has been more than a 15 percent increase in total filings between 1982 and 1983. In order to achieve the 250 primary case assignment standard in 1984, a total of almost four additional judges would be required, rather than just the one requested and presently certified. The Third District has not requested the additional judges because of space limitations. When additional space is provided, the already existing needs of the Third District will justify the certification of additional judges in order to reduce its filings per judge, presently the highest in the state, to a more acceptable standard.

Fourth Appellate District. The Fourth District has nine judges, and the need for two additional judges is certified. This certification confirms our previous certification of one additional judge over the biennium and adds a second judgeship based upon current and projected ease loads.

The Fourth District continues to have the largest number of pending cases. Filings have exceeded dispositions in 1982 and 1983. The area within the jurisdiction of the Fourth District represents a very rapidly growing part of the state and receives a large number of tourists each year. In order to fully achieve the 250 primary case assignment standard in 1984, three additional judges would be required in the Fourth District. At this time, however, we certify only the two additional judges requested.

Fifth Appellate District. The Fifth District has had six judges since its creation in 1979, and the need for one additional judge is certified. This is a recertification of the need which existed last year and continues to exist.

The Fifth District continues to have the highest ratio of population per judge of any district and a high attorney per judge ratio. Filings have increased every year since the Fifth District’s creation and are projected to continue to increase. In order to fully achieve the 250 primary case assignment standard in 1984, two additional judgeships would be required, but we certify only the one requested at this time.

CIRCUIT AND COUNTY COURTS

Case filing statistics are only one of the factors we consider in determining the need for additional judges. At the trial court level, case filing statistics are not as significant in relation to other criteria and factors as they are at the appellate level. At the trial level, geographic size, the presence of nonlawyer county judges, the location of state institutions, the availability of retired judges and masters, and locally funded information systems vary widely and can affect the need for additional judges. Thus, while a standard of not more than 250 primary case assignments has been developed for the district courts, no similar standard can be applied at the trial court level. A case load standard at the trial level which ignores variations among the circuits would not be a correct measure of need for additional judges.

Case load information available at the state level for the trial courts is derived through the Summary Reporting System (SRS), which was implemented in 1978. SRS requires the commitment of virtually no state resources. The clerks of the circuit courts provide monthly tabulations of summary case filing and disposition statistics to the State Courts Administrator’s Office. Review of twenty-six counties in 1988 by that office demonstrates substantial compliance by the clerks with guidelines adopted for the collection and submission of this information. More specific case management information, collected in a uniform manner, may be useful at the state level, but this may also require the commitment of additional resources for the development and implementation of such a system. We are, therefore, requesting that the circuit court chief judges, as well as interested organizations and associations, work with the State Courts Administrator’s Office in developing recommendations for improvements in judicial work load information available at the state level which will more accurately and completely measure judicial work load on a uniform statewide basis within the practical constraints of the resources available. These recommendations should be presented to this Court by October 1, 1984.

The primary considerations prompting our certification of need for the respective judicial circuits are as follows:

Second Judicial Circuit (Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla Counties). There are currently eight circuit and eight county court judges in the Second Circuit. The need for one additional circuit judgeship was certified last year. We recertify that need.

This is one of only two circuits which has not received an additional judgeship since article Y was adopted in 1972. As noted last year, the circuit has a high number of complex and constitutional eases involving state agencies because the state capital is located in this circuit. The circuit continues to have the highest ratio of attorneys per judge, is very large geographically, and has two nonlawyer county judges who cannot assist with circuit court duties. There is a high ratio of jury trials per judge in the circuit. There has been a significant increase in the circuit’s criminal case load in its larger counties, significant delays are now present in civil dockets, and retired judges are generally not available to assist with this circuit’s case load.

Fourth Judicial Circuit (Clay, Duval, and Nassau Counties). There are currently twenty-four circuit and fourteen county court judges in the Fourth Circuit. The need for one additional circuit judgeship was certified last year. We recertify that need.

The Fourth Circuit has not received a new judgeship since 1980 and has received only three additional circuit judgeships since the adoption of article V in 1972. Four county court judges are nonlawyers and, therefore, cannot assist with circuit work load. There is a very high ratio of filings per judge in the criminal division, and the circuit is projected to have the fourth highest number of jury trials with over a 30 percent increase occurring between 1982 and 1983. The circuit also has a high attorney per judge ratio.

Fifth Judicial Circuit (Citrus, Hernan-do, Lake, Marion, and Sumter Counties). The Fifth Circuit currently has ten circuit and seven county court judges. The need for one additional circuit judgeship was certified last year. We recertify that need.

The Fifth Circuit is projected to rank first in the ratio of dispositions and population per judge and second in the ratio of filings per judge. It is also projected to rank fourth in the combined factors, including attorneys and trials per judge. Four of its seven county court judges cannot assist on the circuit bench, and no retired judges reside in the Fifth Circuit. Additionally, the circuit covers a geographic area of 4.160 square miles and has five state correctional institutions located within its jurisdiction. It is projected to experience a very large growth in population through 1985.

Sixth Judicial Circuit (Pasco and Pinel-las Counties). The Sixth Circuit currently has twenty-eight circuit and thirteen county court judges, two of whom are in Pasco County. The need for one additional county court judge for Pasco County was certified last year and we recertify that need. In addition, we certify the need for one circuit judge and one county court judge for Pinellas County.

While case load statistics alone would not indicate the need for an additional judge in Pasco County, as we stated last year, the Court is aware of significant geographic factors which must be considered in Pasco County. One of the two county court judges currently resides in the eastern part of the county and sits in the county courthouse in Dade City. The other county court judge resides in the western portion and sits at the branch courthouse in New Port Richey. There is a substantially heavier case load in the western portion. Because of the geography of the county and the distance between the courthouse and the branch courthouse, the judge in Dade City cannot effectively assist the judge in New Port Richey who is in critical need of assistance. Because the greater future development is expected to occur in west Pas-co, the already serious condition will be aggravated. Not only has the local bar been outspoken as to the critical need for an additional county court judge to assist in west Pasco, but also local law enforcement has expressed a concern about increases in serious traffic and county court cases which will further increase delay in case processing and result in a backlog of pending cases. Pasco County is projected to rank first in population per judge, and is also projected to rank eleventh in the state on the combined factors of filings, dispositions, trials, attorneys and population per judge. Pasco County is projected to have the fourth highest ratio of trials per judge in the state.

Pinellas County is projected to rank third in the state on the combined factors of filings, dispositions, trials, attorneys, and population per judge. The last new county court judgeship was created in Pinellas County in 1979 and that was the only new county judgeship created in the circuit since 1976. Among urban counties, Pinel-las is projected to rank second in jury trials per judge.

The bases of our certification of an additional circuit judge are the high ratio of population per judge, the great increase in projected population growth, the large number of attorneys in the circuit, and the geographic considerations relating to travel time within the circuit in view of the five primary and two satellite courthouses. Travel distances and traffic conditions between courthouse locations are factors which make it difficult to transfer judges among locations. Additionally, there has been a 14 percent increase in Circuit Court jury trials between 1982 and 1983 compared to the statewide average increase of 3 percent. As noted above, Pinellas County has a very high ratio of jury trials per county court judge, and, therefore, county court judges are not readily available to assist with circuit court jury trials. We note that the circuit does not appear to rank particularly high in its ratio of filings per judge but this may be due to reporting errors which administrative staff, recently available to the circuit, is expected to correct.

Eighth Judicial Circuit (Alachua, Baker, Bradford, Gilchrist, Levy, and Union Counties). The Eighth Circuit currently has eight circuit and nine county court judges. The need for one additional circuit judgeship was certified last year. We re-certify that need.

The circuit has experienced a large percentage increase in filings since 1981, and filings continue to significantly exceed dispositions. Eight state correctional institutions are located in the circuit, and geographically the circuit is one hundred miles long and fifty miles wide. One county court judge is a nonlawyer. County court judges who are eligible to assist with circuit case load are used regularly for this purpose.

Ninth Judicial Circuit (Orange and Osceola Counties). The Ninth Circuit currently has eighteen circuit and twelve county court judges. The need for one additional circuit judgeship was certified last year. We recertify that need. In addition, we certify the need for a county court judge in Orange County.

The circuit is projected to rank third in ratio of attorneys per judge and has a high overall projected ranking of the combined factors of filings, dispositions, trials, attorneys, and population per judge. There has been a significant growth in population since 1975, and that trend is expected to continue. The circuit also has a large transient and tourist population. Orange County is projected to be ninth in combined county court rankings of filings, dispositions, trials, attorneys, and population per judge and has not had a new county court judge since 1978 despite significant population and tourist increases. Orange County also is projected to have the third highest ratio of trials per judge among urban counties.

Tenth Judicial Circuit (Hardee, Highlands, and Polk Counties). The Tenth Circuit currently has thirteen circuit and eight county court judges. The need for one additional circuit judgeship was certified last year. We recertify that need.

Since the circuit is large geographically, intra-circuit travel is very time-consuming. Population growth in the circuit has been high and is expected to continue. The circuit ranks high in its ratio of population per judge. Two of the eight county court judges are not eligible to assist with circuit court case load, and the circuit has made extensive use of retired judges.

Eleventh Judicial Circuit (Dade County). The Eleventh Circuit currently has fifty-seven circuit and thirty-two county court judges. The need for two additional circuit as well as three additional county court judgeships was certified last year. We revise that previous certification and certify the need for three circuit and two county court judgeships.

The circuit is projected to rank second in the state in ratio of attorneys per judge. In addition, as we noted last year, the circuit has experienced a significant population increase as well as an influx of migrants. The circuit continues to have a high tourist and transient population. In combined overall ratios, this circuit is projected to rank third. Dade County has evidenced a strong commitment to deal effectively with the area’s high crime rate. Since 1980, there has been a 33 percent increase in police officers, and a 48 percent increase in arrests. This has resulted in a significant increase in criminal filings, both at the circuit and county court level. County court judges have been assisting on the circuit bench, with two county court judges assisting almost full-time in the circuit criminal division. With high county court case loads, they must now attend to their own dockets which have experienced a dramatic increase in traffic and criminal cases. The certification of three circuit judges should allow at least one county court judge to return to the county bench from his circuit court assignment, thus alleviating the need for one of the county court judges certified last year.

Twelfth Judicial Circuit (DeSoto, Manatee, and Sarasota Counties). The Twelfth Circuit currently has eleven circuit and six county court judges, with three county court judges in Sarasota County. The need for an additional county court judgeship was certified for Sarasota County last year. We recertify that need.

This Court previously certified the need for an additional county court judge in Sarasota County in 1981, 1982, and in 1983. Although the Legislature approved additional circuit judgeships in 1981 and 1982, no county court judgeship has been approved in Sarasota County since 1976. The county court case loads have continued to grow and presently rank near the top in ratio of filings per judge. Sarasota County is projected to rank first in combined overall ratios. Circuit court judges cannot assist in county court due to the ever-increasing circuit court case load. The Twelfth Circuit is projected to rank seventh in ratio of filings per circuit judge, fourth in ratio of population per circuit judge, and seventh in combined overall ratios.

Thirteenth Judicial Circuit (Hillsbor-ough County). The Thirteenth Circuit currently has twenty-five circuit and ten county court judges. The need for an additional circuit as well as an additional county court judgeship was certified last year. We re-certify that need.

The circuit has a high overall ranking in the combined factors of filings, dispositions, attorneys, and population per circuit judge. Hillsborough County ranks near the top in the state in its crime rate, and the county is also near the top in total county court filings. The circuit has received only one new circuit judge since 1979 and one county court judge since 1973. Although there is a current need for these additional judges, space limitations currently exist that would make it impractical to have them in place during 1984. New construction will resolve this problem by April 1985, and the new judges should be allowed to take office at that time.

Fifteenth Judicial Circuit (Palm Beach County). The Fifteenth Circuit currently has twenty-one circuit and ten county court judges. The need for two additional county court judgeships was certified last year. We recertify that need and additionally certify the need for one circuit judge.

The circuit has experienced a significant population increase and has a large tourist population. Projections for 1985 are for a 50 percent increase over 1975 population. The circuit is projected to rank fifth in the combined factors of filings, dispositions, trials, attorneys, and population per circuit judge. Significantly, it is projected to have the third highest ratio of trials per circuit judge. There is a need for additional county court resources since there has been only one new county court judge approved since 1979, and because the county is projected to rank first in county court filings per judge and second in combined overall ratios. Palm Beach County is also projected to rank first among urban counties in ratio of trials per county judge.

Seventeenth Judicial Circuit (Broward County). The Seventeenth Circuit currently has forty-one circuit and seventeen county court judges. The need for two additional county court judges was certified last year. We recertify that need. Bro-ward County is projected to rank fourth in overall combined ratios of filings, dispositions, attorneys, trials and population per county judge. Only two new county court judgeships have been created since 1979. Between 1980 and 1983 there has been a 20 percent increase in local law enforcement personnel among the eight largest law enforcement agencies in the county.

For the first time since 1975 and for only the second time since 1972, the circuit has not requested additional circuit court judgeships. We take particular note of the actions which have been taken by the Seventeenth Circuit in lieu of a request for new judgeships and in response to a report on pending case loads by the State Courts Administrator’s Office which we requested in last year’s certification opinion. These actions, which evidence a sincere commitment to the effective and efficient operation of the circuit, include:

1. Issuance of an administrative order requiring the use of a uniform motion calendar.

2. The use of Nova law students to help purge old ease files and to remove from the pending files cases which have been closed.

3. The issuance of an administrative order reducing jury panel sizes, which will result in a dramatic and significant savings to the state.

4. Implementation of a team concept for maximizing the use of available judicial manpower.

5. The active involvement of individual judges in purging their own card files of inactive cases.

6. Development of a plan to utilize volunteer lawyers to conduct mandatory settlement conferences on pending cases.

7. Development of a plan to increase the availability of courtroom facilities in satellite courts for the purpose of conducting trials.

Improved administration is commendable, and we consider it to be a priority for the state court system. It can, and has, obviated the need for additional circuit court judgeships in the Seventeenth Circuit this year. Dispute resolution, arbitration, settlement conferences, strict continuance policies, and judicial control of dockets are encouraged, and we expect each circuit to apply these and other case management techniques to reduce its need for additional judges. In a state like Florida, however, where there is ever-increasing population and tourist growth, a need to certify additional judges in future years in the Seventeenth Circuit and elsewhere will develop, notwithstanding optimum case management systems.

Eighteenth Judicial Circuit (Brevard and Seminole Counties). The Eighteenth Circuit currently has fourteen circuit and eight county court judges. The need for one additional county court judge for Seminole County was certified last year. We recertify that need.

As we previously pointed out, Seminole County has not had a new judgeship since 1976, and the circuit has received only one new circuit judge since 1972. Population growth has been substantial, with a high number of tourists passing through Seminole County on their way to the Disney World area. The county ranks near the top in ratio of filings per judge, and is projected to rank seventh in overall combined ratios.

Nineteenth Judicial Circuit (Indian River, Martin, Okeechobee, and St. Lucie Counties). The Nineteenth Circuit currently has eight circuit and six county court judgeships. The need for one additional circuit and one additional county court judgeship was certified last year. We re-certify that need.

The circuit is projected to be tied for first in overall combined ratios and has shown-a significant population increase which is expected to continue. The circuit also ranks high in ratio of trials per judge. Due to the size of the circuit, 2,423 square miles, travel time is considerable. One of the county court judges is a nonlawyer. Indian River County has one of the highest ratios of county court filings per judge in the state, has not had a new county court judgeship since article V was adopted, and is projected to rank fourth in overall combined ratios.

Twentieth Judicial Circuit (Charlotte, Collier, Glades, Hendry, and Lee Counties). The Twentieth Circuit currently has eleven circuit and nine county court judges. The need for one additional circuit judgeship was certified last year. We recertify that need.

The circuit ranks high in population per judge, has a high ratio of trials per judge, and is projected to be tied for first in overall combined ratios. Three of the county court judges are nonlawyers and cannot assist on the circuit bench. The circuit covers a large geographic area and has experienced an increasing number of complex criminal cases. The circuit is projected to have a 68 percent population growth between 1975 and 1985.

CERTIFICATION

Accordingly, pursuant to article V, section 9, Florida Constitution, we certify the need for six additional district court of appeal judgeships, fourteen additional circuit court judgeships, and thirteen additional county court judgeships for fiscal year 1984-85. These judicial officers are necessary for the proper administration of justice, and we recommend they be made permanent and funded by the state. These new judgeships should become effective August 1, 1984, with the exception of the additional circuit and county court judge-ships certified for the Thirteenth Judicial Circuit (Hillsborough County) which should become effective April 1, 1985, due to presently existing space limitations.

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


source: Caselaw Access Project

author: McDONALD, Judge.

license: Public Domain

text:
    Anthony T. WRIGHT and Henry Washington, Petitioners, v. STATE of Florida, Respondent.
    No. 63491.
    Supreme Court of Florida.
    Feb. 16, 1984.
    Warren K. Anderson, Jr., Jacksonville, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee; and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for respondent.
   McDONALD, Judge.

We have for review Wright v. State, 428 So.2d 746 (Fla. 1st DCA 1983), which poses the following question certified to be of great public importance:

Must a trial court instruct the jury of the possible imposition, for reasons personal to a defendant, of a greater sentence than that statutorily specified for a crime, when such instruction is requested pursuant to Fla.R.Crim.P. 3.390[ (a) ].

Id. at 748. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We answer the question in the negative and approve the district court’s decision.

An information charged Wright and Washington with burglary of a conveyance. The jury convicted them in a joint trial, and each received an enhanced sentence of ten years in prison. On appeal they claimed that the trial court erred in refusing their request that the jury be told the maximum enhanced penalty could be ten years. The district court found that the trial court had properly refused to give the requested instruction because Florida Rule of Criminal Procedure 3.390(a) and Tascano v. State, 393 So.2d 540 (Fla.1980), require only an instruction on the statutory minimum and maximum sentences for the offense for which the accused is on trial.

We hold that rule 3.390(a) and Tascano do not require that the jury be informed of a possible enhanced maximum sentence. We therefore answer the certified question in the negative and approve the district court’s decision.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Leonard L. LEVENSTEIN, Respondent.
    No. 64567.
    Supreme Court of Florida.
    Feb. 16, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, Tallahassee; and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Thomas W. McAliley. of Beckham & McAliley, Miami, for respondent.
   PER CURIAM.

Levenstein petitions this Court for leave to resign from The Florida Bar without leave to apply for readmission. The Bar recommends that the petition be accepted.

In 1983 Levenstein pleaded guilty to violating section 895.03, Florida Statutes (1983), by transporting large sums of cash gained from his clients’ drug-smuggling conspiracy to the Bahamas for deposit and subsequent transfer to specified foreign corporations. As part of a pre-plea agreement, Levenstein agreed to permanent disbarment. The Integration Rule does not provide for permanent disbarment. Leven-stein, therefore, has filed the instant petition in order to comply with his plea agreement.

We grant the petition for leave to resign without leave to apply for readmission. Levenstein’s resignation will be effective thirty days from the date of the filing of this opinion, giving him time to close out his practice and protect any remaining clients.

It is so ordered.

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


text:
    In re FLORIDA RULES OF JUDICIAL ADMINISTRATION (DETERMINATION OF NEED FOR ADDITIONAL JUDGES).
    No. 64544.
    Supreme Court of Florida.
    Feb. 23, 1984.
   PER CURIAM.

Pursuant to article V, section 9 of the Florida Constitution, we adopted Florida Rule of Judicial Administration 2.035 which became effective December 1, 1983. We requested that all comments and suggestions regarding this rule be filed on or before February 1, 1984.

We find meritorious the suggestion that there be separate provision in this rule for district courts of appeal particularly in light of the fact that we already have an objective standard for determining the need for additional appellate judges based primarily on case load.' In 1979 the Supreme Court Commission on Florida Appellate Court Structure recommended that existing conditions could be significantly improved by reducing the case load per appellate judge to a maximum of 250 primary case assignments. In In re Certification, 370 So.2d 365, 366 (Fla.1979), we concurred fully with the commission’s conclusion that appellate judges cannot adequately bear the primary responsibility for review of more than 250 cases per judge annually.

We agree that the criteria for certification of trial court judges and district court of appeal judges should be separately defined. Accordingly, we approve the following amendment to Florida Rule of Judicial Administration 2.035:

Rule 2.035 Determination of Need for Additional Judges.

(a) STATEMENT OF PURPOSE

The purpose of this rule is to set forth uniform criteria used by the Supreme Court in determining the need for additional judges, except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing, or redefining appellate districts and judicial circuits, pursuant to article V, section 9, Florida Constitution. The criteria set forth in this rule have been identified and used by the Supreme Court in making this determination since article V was substantially revised in 1972. These criteria form the primary basis for our determination of need. Unforeseen developments, however, may have an impact upon the judiciary resulting in needs which cannot be foreseen or predicted by statistical projections. This Court, therefore, may also consider any additional information found by it to be relevant to the process. In establishing criteria for the need for additional appellate court judges, substantial reliance has been placed on the findings and recommendations of the Supreme Court Commission on Florida Appellate Court Structure. See In re Certification, 370 So.2d 365 (Fla.1979). T-hese-criteria- are considered in relation to each-other,-but they cannot be compressed into a mathematical formula.

(b) CRITERIA

(1) Trial Courts

(A) i Case load statistics based upon data supplied to the State Courts Administrator by the clerks of the circuit courts and district courts of appeal.

(B) & Growth, nature, and projections of population within a particular court’s jurisdiction.

(C) 3t Number of attorneys within a particular court’s jurisdiction.

(D) 4t The use and availability of retired judges to serve on a particular court.

(E) 5v The presence of non-lawyer county court judges within a particular circuit who by law cannot be assigned to assist with the circuit court case load.

(F) 6r The geographic size of a circuit, including travel times between courthouses in a particular jurisdiction.

(G) Tv The presence of state facilities and institutions in a particular jurisdiction.

(H) 8r Law enforcement activities in the court’s jurisdiction, including any substantial commitment of additional resources for state attorneys, public defenders, and local law enforcement.

(I) ⅜ Time since the last new judgeship was authorized for the particular jurisdiction.

(J) 40r The nature and complexity of cases coming before the courts in the jurisdiction.

(K) ⅛ Prior certifications which were not authorized by the legislature.

(2) District Courts of Appeal

(A) Case load statistics based upon data supplied to the State Courts Administrator by the clerks of the district courts of appeal. The court will presume that there is a need for an additional appellate court .judgeship in any district for which a request is made and where current case load filings reflect the need for an additional judgeship based on a primary case load of 250 filings per judge.

(B) Any other factor deemed relevant by the court including, but not limited to, those factors listed in (b)(1) for trial courts.

(c) ADDITIONAL WORK LOAD FACTORS

Because summary statistics reflective of the above criteria do not fully measure judicial work load, the Supreme Court will receive and consider, among other things, information about the time to perform and volume of the following activities, which also comprise the judicial work load of a particular jurisdiction:

1. Review appellate court decisions.

2. Research legal issues.

3. Review briefs and memoranda of law.

4. Participate in court conferences on pending cases.

5. Hear and dispose of motions.

6. Prepare correspondence, orders, judgments, and decisional opinions.

7. Review presentence investigative reports and predispositional reports in delinquency and dependency cases.

8. Review petitions and motions for post-conviction relief.

9. Perform administrative duties relating to the court.

10. Participate in meetings with those involved in the justice system.

11. Participate in educational programs designed to increase the competency and efficiency of the judiciary.

(d) CERTIFICATION PROCESS

In order to gather information about these criteria and additional work load factors, the State Courts Administrator will distribute a compilation of summary statistics and projections to each Chief Judge at a time designated by the Chief Justice. Each Chief Judge will then consider these criteria, additional work load factors, and summary statistics, and submit to the Chief Justice a request for any increases or decreases under article V, section 9 of the Florida Constitution which the Chief Judge feels are required. The Chief Justice and State Courts Administrator may then visit the Chief Judge and other representatives of the court submitting the request as well as representatives of The Florida Bar and the public to gather additional information and clarification about the need in the particular jurisdiction. The Chief Justice will 'submit his recommendations to the Supreme Court which will thereafter certify to the legislature its findings and recommendations concerning such need.

Comment: Article V, section 9 of the Florida Constitution authorizes the establishment, by rule, of uniform criteria for the determination of the need for additional judges, except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing, or redefining appellate districts and judicial circuits. Each year since the adoption of article V in 1972, this Court pursuant to section 9 has certified its determination of need to the legislature based upon factors and criteria set forth in our certification decisions. This rule is intended to set forth criteria and work load factors previously developed, adopted, and used in this certification process, as summarized and specifically set forth in In re Certificate of Judicial Manpower, 428 So.2d 229 (Fla.1983); In re Certificate of Judicial Manpower, 396 So.2d 172 (Fla.1981); and In re Certification, 370 So.2d 365 (Fla.1979). In re Certificate of Judicial Manpower, 396 So.2d 172 (Fla.1981); and In re Certification, 370 So.2d 365 (Fla.1979).

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


text:
    Sonnie Boy OATS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 60489.
    Supreme Court of Florida.
    Feb. 23, 1984.

      Theodore N. Taylor, Lutz, and Frank T. Johnson, Tampa, for appellant.
    Jim Smith, Atty. Gen. and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction of murder in the first degree and a sentence of death imposed by the Circuit Court for Marion County, Florida. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

On December 20, 1979, Jeanette Dyer, the clerk at the Little Country Store in Martel, Florida, was found on the floor with a. head wound. She had no palpable pulse or respiration but she did show a faint heart beat. She died shortly thereafter at the hospital. Cause of death was a single bullet fired from approximately one foot away which penetrated her right eye and her brain. A sum of money was also missing from the store’s cash register.

On December 24, 1979, an Ocala policeman observed an automobile with two suspicious looking occupants in the vicinity of a Jiffy Food Store. As the officer approached the car, it sped away at a high rate of speed. The officer gave chase. With lights out, the car entered 1-75 and started weaving in and out of traffic at a speed of about one hundred miles an hour. The vehicle exited 1-75 and soon crashed. Its occupants were not immediately apprehended, but shortly thereafter one Donnie Williams was arrested as a suspect in the high-speed chase and transported to the Marion County Jail. Upon Williams’ arrival at the jail, it developed that Oats was already there inquiring about getting Williams released. Oats was then informed that he was a suspect in the high-speed chase and given Miranda warnings. He also signed a waiver-of-rights form. Oats was then questioned concerning the chase. He admitted his involvement in the chase and stated he would show the police where he had thrown a weapon during the chase. The weapon was found near where Oats said it would be. Oats also admitted his involvement in an ABC liquor store robbery and shooting that had occurred on December 19, 1979, one day prior to the Martel robbery and murder. In that crime, a clerk was robbed and then shot in the right side of the face.

On December 28, 1979, Oats again admitted robbing and shooting the ABC clerk. He then admitted robbing and killing the Martel clerk. He first stated his hand had slipped and the gun had discharged accidentally. He later stated his foot slipped and that the gun had gone off accidentally when it hit the counter. Ballistics tests conducted on the gun recovered from the roadside established that it was the same weapon used in both the ABC and Martel shootings.

In June 1980, Oats was tried in a separate proceeding for the A.BC robbery and shooting and was convicted of robbery with a firearm and attempted murder in the first degree. On June 14, 1980, Oats escaped from the Marion County Jail. He was recaptured in Texas in December 1980.

In February 1981, Oats was tried for the Martel robbery and shooting. During the trial, the state introduced similar-fact evidence that related to the ABC robbery and shooting. At this trial, Oats was found guilty of first-degree murder and robbery with a firearm. The jury rendered an advisory sentence of death. The trial court imposed the death sentence for the murder charge and ninety-nine years for the robbery.

On December 23, 1981, while review of the instant case was pending before us, the Fifth District Court of Appeal reversed Oats’, conviction for the ABC robbery and attempted murder. Oats v. State, 407 So.2d 1004 (Fla. 5th DCA 1981). The propriety of that action is not before this Court.

I. The Guilt Phase

Appellant asserts six points of error that relate to the guilt phase of the trial. First, he urges that the trial court erred by its failure to suppress his confessions. The argument is that the confessions were not free and voluntary but were extracted by a type of mental coercion. We disagree. Whatever kindness was shown to Oats by the police officers did not rise to the level of improper influence that was held to be error in Brewer v. State, 386 So.2d 232 (Fla.1980). In addition, Oats’ own testimony that he recalled one of the interrogating officers saying to him that they, as police officers, couldn’t promise him anything vitiates his argument. See State v. Mullin, 286 So.2d 36 (Fla. 3d DCA 1973).

Appellant next asserts that he was denied a right to a fair and impartial trial by the court’s failure to sequester the jury. This argument is clearly without merit. It is within the discretion of the trial judge whether or not to sequester the jury. Fla.R.Crim.P. 3.370(a). The denial of a motion to sequester in a capital case is not an automatic abuse of discretion. The defendant must show that media coverage of his trial or events which preceded it was unfair or unduly pervasive. Ford v. State, 374 So.2d 496 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). Oats makes no argument that coverage during the trial was at all harmful; he solely relies upon the amount of pretrial publicity present in Marion County. He details thirteen newspaper articles that mentioned Oats which appeared in the two local newspapers. While if considered in a vacuum the articles may seem to be facially unfair to Oats and the number unduly pervasive, in actuality there is no unfairness or undue pervasiveness. All the articles were straight news stories detailing either Oats’ indictment for the crimes, his ABC trial conviction, his escape, his capture, or an incident where Oats started a fire in his cell. All were of a factual nature and none can be characterized as editorials such as were presented in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). There was no demonstration that the reports were highly colored or inflammatory. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). While three of the articles disclosed that Oats had given a confession, none gave any actual excerpts from the confession or featured the confession as a prominent element. And finally, the thirteen articles spanned a period of one full year and thus in no way can be considered pervasive. In any event, the trial court in its discretion felt that due admonition given throughout the course of the proceedings would be sufficient to protect appellant. Due admonition was given. Oats has thus not shown that the trial court abused its discretion in denying his motion to sequester the jury.

Appellant’s next issue is related to the issue just discussed. He argues that the trial judge erred by failing to grant a change of venue on the ground that the pretrial publicity was persuasive, inflammatory, and prejudicial. This point has been partially met, supra. In addition, an examination of the voir dire shows that of the jurors who were seated to hear the case, one knew nothing of the case at all and the remainder either only vaguely saw or read “something” about Oats but none remembered any specific details. All stated that they had no fixed opinions of Oats’ innocence or guilt, that they could set aside any publicity to which they may have been exposed, and that they could be impartial and fair. It is thus clear that the general state of mind of the inhabitants of Marion County as evidenced by Oats’ specific jury panel was not so infected by pretrial knowledge of the case as to preclude a fair and impartial jury. The motion for change of venue was properly denied. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida; Gavin v. State, 259 So.2d 544 (Fla. 3d DCA), cert. denied, 265 So.2d 370 (Fla.1972).

Appellant next argues that the trial court erred by allowing the introduction of evidence of the ABC crime in the state’s case in chief following the introduction of Oats’ confession. Oats claims that the testimony of witnesses Mathena, Schore, Stewart, Brackman and LaTorre became a feature of the trial since there remained no material issues of disputed fact in view of the state’s having previously introduced the confession to the jury. The use of the ABC witnesses, however, while subsequent to the confession, was relevant to rebut Oats’ contention in his confession that the Martel murder was an accident. The evidence was used to show intent, common scheme, and absence of accident. The introduction of evidence of the collateral robbery was thus to address a disputed material issue of fact and hence was permissible under Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Also, a review of the testimony of the five witnesses fails to show that it was a feature of the trial; the testimony was brief and incidental. It thus was not violative of the second Williams case, Williams v. State, 117 So.2d 473 (Fla.1960). In any event, the trial court read cautionary instructions to the jury two different times concerning the similar fact evidence. These instructions that were given sufficiently distinguished the permissible/impermissible uses of the similar evidence and thus were more than corrective.

Appellant’s next trial point requires little discussion. He argues that certain remarks made by the prosecutor during the course of the trial were inflammatory and prejudicial. We have carefully reviewed the record in light of appellant’s argument and found that this point is unpersuasive.

Appellant’s final trial argument •is that the trial court erred in denying Oats’ motion for directed verdict of acquittal and new trial and accepting the verdict of guilty of premeditated murder which was claimed to be against the weight and sufficiency of the evidence. This argument also lacks merit. Clearly, premeditation may be proved by circumstantial evidence and the record shows that it was. There was sufficient evidence presented for the jury to convict Oats of premeditated murder. Inferences reasonably drawn from the evidence must not only be consistent with guilt but inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977). It is apparent that the triers of fact resolved any conflict adversely to appellant thereby finding appellant’s story to be unreasonable, and we will not disturb that verdict.

Accordingly, there being no merit to appellant’s trial phase arguments, the judgment of guilt is affirmed.

II. The Penalty Phase

Turning to the penalty phase of the trial, we must determine if the sentence of death was appropriate. In his findings of fact, the trial judge found that the state had proven beyond a reasonable doubt six statutorily enumerated aggravating circumstances: Previous conviction of another capital felony or a felony involving the use or threat of violence; the murder was committed while the appellant was engaged in the commission of a robbery; the murder was committed for the purpose of avoiding a lawful arrest; the murder was committed for pecuniary gain; the murder was especially heinous, atrocious or cruel; and the murder was committed in a cold, calculated and premeditated manner. The trial judge found one mitigating circumstance, that the appellant was twenty-two years of age at the time of the murder.

Taking each of these factors in order, it is apparent that the trial court erred in its determination of three of the aggravating circumstances.

In support of the factor of conviction of another capital felony or a felony involving the use or threat of violence, the state introduced evidence of three prior convictions: a burglary in 1976 and the ABC robbery and attempted murder. Burglary is neither a capital felony nor is it per se a felony involving the use or threat of violence. As for the ABC crimes, appellant objected at trial to the introduction of the conviction because Oats had not been sentenced yet and hence his time for appeal had not expired. The reversal of that conviction brings to the Court a question that was reserved in Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981), where we said, “We do not have the problem which would arise from the consideration as an aggravating circumstance of a conviction valid at the time of sentencing, that is subsequently reversed and vacated by an appellate court.” 395 So.2d at 499. We now hold that in such a situation the vacated conviction cannot be used as an aggravating factor. Therefore, the trial court was in error in finding this aggravating circumstance present.

We note, however, that appellant has again been convicted of the ABC crimes and that that conviction has been affirmed. Although the use of this aggravating factor was in error at the time it was found, and we therefore disallow it, were we to remand for a new penalty phase trial the jury could properly consider evidence of the later, valid conviction. Because a new jury would be considering essentially the same evidence as was presented to the original jury, we find no reason to resubmit the evidence to a jury. The judge may certainly take this new conviction into consideration when resentencing the defendant.

Concerning the next aggravating factor, that of commission of the crime during a robbery, this must be looked at in tandem with the factor of the crime being committed for pecuniary gain. The state proved both of these factors but the trial court erred by doubling up on them. These two circumstances must be considered cumulative and may not be considered individually when the only evidence that the crime was committed for pecuniary gain was the same evidence of the robbery underlying the capital crime. Perry v. State, 395 So.2d 170 (Fla.1980); Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Thus, only one aggravating factor may be counted.

As to the factor of avoidance of lawful arrest, we stated in Riley v. State, 366 So.2d 19 (Fla.1978), that the mere fact of a death is not enough to invoke this section when the victim is not a law enforcement official. “Proof of the requisite intent to avoid arrest and detection must be very strong in these cases.” 366 So.2d at 22. Also, it must be clearly shown that the dominant or only motive for the murder was the elimination of witnesses. Menendez v. State, 368 So.2d 1278 (Fla.1979). We hold that this factor was proven by the state beyond a reasonable doubt by the similar fact evidence of the ABC crime as well as Oats’ statements in his confession.

The trial judge found that the murder was especially heinous, atrocious, or cruel. However, as we noted in Kampff v. State, 371 So.2d 1007 (Fla.1979), a pistol shot straight to the head of the victim does not tend to establish this aggravating circumstance. Here, the state has failed to introduce any other evidence to prove this circumstance.

Finally, the trial judge found as aggravation that the crime was committed in a cold, calculated and premeditated manner. The state introduced enough evidence to show that this capital felony was indeed committed in a cold, calculated and premeditated manner. The fact that Oats, within a day of the ABC liquor store robbery-attempted murder, had shot and killed the clerk at the Martel convenience store clearly supports this finding.

In sum, then, this Court finds that the trial judge erred in three of his findings of aggravating circumstances. We find that the state proved beyond a reasonable doubt only that the crime occurred during the commission of a robbery, was committed for the purpose of avoiding lawful arrest, and was cold, calculated and premeditated. Because the judge weighed three impermissible aggravating factors, in addition to the three permissible ones, against the single mitigating factor of Oats’ age, we cannot know if the result would have been different if the impermissible factors had not been present.

Accordingly, while we affirm the judgment of conviction, the sentence of death is set aside and this cause is remanded to the trial court for entry of a new sentencing order in accordance with the views expressed herein.

It is so ordered.

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

ADKINS, J., concurs in the conviction, but dissents from the sentence.

      . On February 9, 1982, Oats was again convicted of the ABC robbery and attempted murder. That conviction was subsequently per curiam affirmed by the Fifth District Court of Appeal. Oats v. State, 434 So.2d 905 (Fla. 5th DCA 1983).


author: PER CURIAM. EHRLICH, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Joseph BRADHAM, Jr., Respondent.
    No. 61690.
    Supreme Court of Florida.
    Feb. 23, 1984.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Steve Rushing, Bar Counsel, Tampa, for complainant.
    Richard T. Earle, Jr., St. Petersburg, for respondent.
   PER CURIAM.

Upon a complaint by The Florida Bar this Court appointed a referee to conduct a hearing regarding Bradham’s alleged misconduct. Bradham tendered a conditional guilty plea for. consent judgment, acknowledging his violation of Disciplinary Rules 1-102(A)(4) and 1-102(A)(6). The referee recommended that Bradham be found guilty in accordance with his conditional plea and that he receive a public reprimand, a 30-day suspension, a two-year supervised probationary period and payment of costs.

Neither side contests the referee’s report which we hereby adopt. Publication of this opinion in Southern Reporter will serve as the public reprimand, and Joseph Bradham, Jr., is suspended from The Florida Bar for thirty days effective March 26, 1984, thereby giving respondent 30 days to close out his practice and take the necessary steps to protect his clients, and respondent shall not accept any new business. Respondent is placed on supervised probation for a period of two years.

Costs in the amount of $1,014.00 are hereby taxed against respondent.

It is so ordered.

BOYD, OVERTON, McDONALD and SHAW, JJ., concur.

EHRLICH, J., dissents with an opinion, in which ALDERMAN, C.J., concurs.

EHRLICH, Justice,

dissenting.

The referee accepted respondent’s conditional guilty plea for consent judgment and recommended that respondent receive a public reprimand, a 30-day suspension, and a two year supervised probationary period. The complaint charged respondent with dishonesty in his relations with his law partners. In my opinion, the seriousness of the offenses charged against respondent, if proved, warrant a more substantial punishment than that received. Of course, if respondent is proved not guilty, he would be exonerated. I would, therefore, disapprove the proposed plea and the referee’s report based thereon and remand for further proceedings pursuant to the Integration Rules.

ALDERMAN, C.J., concurs.

       We feel it unnecessary to publish the full text of the plea. The Court file is open for inspection.


text:
    Carlos BATEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 63098.
    Supreme Court of Florida.
    Feb. 23, 1984.
    L. Mark Dachs and Melvyn Kessler, Miami, for petitioner.
    Jim Smith, Atty. Gen., and M. Ann Garrison, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

We initially accepted jurisdiction in this case because of apparent express and direct conflict between the decision of the District Court of Appeal, Second District, in State v. Bateman, 423 So.2d 577 (Fla. 2d DCA 1982), and our decision in State v. Benitez, 395 So.2d 514 (Fla.1981). After reading the briefs on the merits and hearing oral argument, we conclude that the Second District’s decision before us does not expressly and directly conflict with Benitez.

In the present case, the district court holds that absent a motion by the state attorney, pursuant to section 893.135(3), Florida Statutes (1981), the sentencing court lacks the authority under subsection (3) to reduce the sentence. The district court additionally concluded that it was convinced from a review of the record that the state attorney acted in good faith in refusing to move for reduction and noted that the state attorney, in fact, had demonstrated to the sentencing court that defendant’s information was stale, cumulative, partially untrue, and insufficient. This decision does not conflict with, but rather is consistent with, our decision in Benitez.

Accordingly, the petition for review is denied on the basis of lack of jurisdiction.

It is so ordered.

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

       This subsection provides in pertinent part:
      (3) The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals_ The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.


text:
    German MORA, Petitioner, v. CITY OF FORT LAUDERDALE, Respondent.
    No. 63170.
    Supreme Court of Florida.
    Feb. 23, 1984.
    Bernard Berman, Fort Lauderdale, for petitioner.
    Jeffrey J. Hochman, Sp. Counsel, Police Legal Unit, City of Fort Lauderdale, Fort Lauderdale, for respondent.
   PER CURIAM.

Petitioner seeks review of In re Forfeiture of 1979 Toyota Corolla, 424 So.2d 922 (Fla. 4th DCA 1982), on the basis of conflict with Griffis v. State, 356 So.2d 297 (Fla.1978), and One 1978 Lincoln Versailles v. State, 388 So.2d 1383 (Fla. 2d DCA 1980). We granted discretionary review in accordance with article V, section 3(b)(3), Florida Constitution. The thrust of petitioner’s argument is that there is no nexus between the felony drug operation and the vehicle. Having heard oral argument and considered petitioner’s arguments, it is clear that there is no direct and express conflict with either Griffis or One 1978 Lincoln Versailles. Discretionary jurisdiction is withdrawn as having been improvidently granted.

It is so ordered.

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

ADKINS, J., dissents.


text:
    T.M.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 82-1382.
    District Court of Appeal of Florida, Second District.
    March 11, 1983.
    Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find that the appellant has failed to demonstrate any reversible error; therefore, the adjudication of delinquency is affirmed. However, that portion of the trial court’s order assessing the appellant court costs in the amount of $75.00 is stricken because the appellant was found insolvent by the trial court. Cox v. State, 334 So.2d 568 (Fla.1976); Brown v. State, 445 So.2d 686 (Fla. 2d DCA 1983).

BOARDMAN, A.C.J., and GRIMES and DANAHY, JJ., concur.


author: LETTS, Chief Judge.

text:
    James E. FOX and Nancy Fox, his wife, John E. Fox and Alice Fox, his wife, Ross A. Scianna and Kim S. Scianna, his wife, and Anthony Gianfrancesco and Helen Gianfrancesco, his wife, Appellants, v. PLAYA DEL SOL ASSOCIATION, INC., a Florida non-profit corporation, Appellee.
    No. 81-2411.
    District Court of Appeal of Florida, Fourth District.
    March 30, 1983.
    David S. Bowman of Bamman & Bowman, Pompano Beach, for appellants.
    Robert J. Manne of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appel-lee.
   LETTS, Chief Judge.

This is an appeal from an order granting appellee’s motion to dismiss for lack of prosecution. We reverse.

Appellant initiated this action in 1975. After far too many years of pre-trial manu-vering, the appellant in 1980 finally filed a notice to set the case for trial. There being no activity of record in the year following the filing of the notice, the appellee moved to dismiss the case for lack of prosecution. The trial court agreed and entered an order granting the appellee’s motion to dismiss. We reverse.

We must agree with the appellant s assertion that the notice for trial which he filed was all he had to do no matter how long a period elapsed thereafter. After notice of trial, absent any other happening, the ball was in the court’s court and this precluded the dismissal for failure to prosecute despite the lack of record activity during the ensuing year. Visuna v. Metropolitan Transit Authority, 353 So.2d 183 (Fla.3d DCA 1977); accord, Biscayne Construction Company v. Metropolitan Dade County, 388 So.2d 329 (Fla. 3d DCA 1980); contra, Treeshore, Inc. v. Basic Asphalt and Construction Corporation, 354 So.2d 976 (Fla. 1st DCA 1978); and Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla. 1st DCA 1977).

Accordingly, we reverse the trial court’s order dismissing this action and remand with directions to reinstate the cause and in so doing recognize apparent conflict with our sister court in Tallahassee.

REVERSED AND REMANDED.

DOWNEY and ANSTEAD, JJ., concur.

      . A dismissal for lack of prosecution is a final order for purposes of appeal. Murphy White Dairy, Inc. v. Simmons, 405 So.2d 298 (Fla. 4th DCA 1981); Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980).


author:
DELL, Judge. PER CURIAM.
      ANSTEAD, Chief Judge,

text:
    BLACKHAWK HEATING & PLUMBING CO., INC., an Illinois corporation, and Andrew Machata, Appellants, v. DATA LEASE FINANCIAL CORPORATION, a Florida corporation, and Roy W. Talmo, Appellees, and Citibank, N.A., Intervenor.
    Nos. 81-2155, 81-2156.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 1983.
    Rehearing and Clarification Denied Oct. 5, 1983.

      Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellants.
    Robert M. Sondak of Paul, Landy, Beiley, Harper & Metsch, P.A., Miami, for appel-lees.
    John H. Schulte of Smathers & Thompson, Miami, and William B. Pennell of Shearman & Sterling, New York City, for intervenor.
   DELL, Judge.

Blackhawk Heating and Plumbing Co., Inc. (Blackhawk) and Andrew Machata (Machata) appeal from an order finding Blackhawk liable to Data Lease Financial Corporation (Data Lease) for $2,757,267.78 and finding Blackhawk and Machata jointly and severally liable to Data Lease for $545,439.69. The trial court found these sums due pursuant to a stock option agreement and subsequent specific performance order.

Since 1973 this case has appeared in either this Court or the Supreme Court of Florida more than ten times. It has also involved various actions in the Federal Courts which have affected the proceedings of the State courts. Although the Southern and Federal Reporter contain numerous chronicles of the facts of this ease, we find ourselves compelled to again review the history of this case.

In 1969, Data Lease purchased 870,000 shares of Miami National Bank (MNB) stock at $12 per share. The purchase price included the assumption of certain loans and the execution of a $1,500,000 promissory note by Data Lease due on July 1, 1970. On May 18, 1970, Data Lease and Black-hawk entered into an option agreement whereby Blackhawk received an option to purchase 25 percent (217,500 shares) of Data Lease’s 870,000 MNB shares at $12 per share. In return, Blackhawk permitted Data Lease to use its credit, thereby enabling Data Lease to obtain a $2,000,000 loan to pay off the $1,500,000 promissory note. On January 25, 1971, Blackhawk notified Data Lease that it was exercising its option to purchase the shares of MNB stock but Data Lease refused to perform.

Blackhawk filed a complaint for specific performance, injunctive relief, accounting and damages based upon the option agreement. The trial court granted a temporary injunction to prevent Data Lease from “selling, assigning, hypothecating, transferring or otherwise disposing of or encumbering” any of the 870,000 MNB shares. After trial on the merits, the trial court found that the option agreement contained vague, indefinite and uncertain terms and that Blackhawk failed to properly exercise its option, and entered a final judgment dismissing Blackhawk’s action for specific performance. The final judgment also dissolved the temporary injunction. Black-hawk appealed and this Court affirmed. Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 287 So.2d 118 (Fla. 4th DCA 1973).

In April of 1973, during the pendency of Blackhawk’s appeal to this Court, Data Lease refinanced the 1969 MNB stock purchase obligation by pledging all 870,000 MNB shares and other stocks with Citibank in return for a loan of $6,217,630.13. Before the Florida Supreme Court reinstated the temporary injunction which the trial court had initially granted against Data Lease, Data Lease also borrowed additional sums totaling $347,000 under the Citibank pledge agreement. In 1974, the Supreme Court reversed this Court and held that the 1970 option agreement contained sufficiently certain terms to sustain a cause of action for specific performance and that Black-hawk had properly exercised the option. The Supreme Court remanded with directions for the trial court to determine the parties’ rights under the option agreement. Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So.2d 404 (Fla.1974).

At this time, Citibank, pursuant to Data Lease’s pledge, held the stock certificate representing the 870,000 shares of MNB stock. The pledge permitted Citibank to register the certificate in its name or in the name of its nominee. On July 12, 1974, Data Lease defaulted on its loan from Citibank. On April 22, 1975, Citibank and Data Lease entered into another agreement which among other things required Data Lease at Citibank’s request to register the shares in the name of Citibank’s nominee and to exercise its best efforts to have certain persons elected to the board of MNB. Data Lease and Citibank obviously made this agreement without regard for Blackhawk’s rights to 217,500 shares of stock pursuant to the then recent decision of the Supreme Court and this Court’s mandate on remand.

In 1977, this Court, in an unreported order, granted Blackhawk’s motion to compel compliance with the mandate and instructed the trial court to

proceed to determine upon the presently entered findings of the Special Master the purchase price of the 25% stock of the Miami National Bank, the set-off for the cash flow benefits and the monies, if any, due in [exercise] of the option, and further to direct specific performance of the option agreement in accordance with such determination.

The trial court entered a final judgment for specific performance, containing the following relevant findings of fact:

1. Blackhawk Heating & Plumbing Company, Inc. properly exercised its option to purchase 217,500 shares of the common stock of the Miami National Bank on February 28,1971 and as of said date all right, title and interest in said stock was vested in Blackhawk Heating & Plumbing Company, Inc.
2. The purchase price of said stock is determined to be $2,610,611.54.
3. The cash payment due on February 28, 1971 pursuant to the Option Agreement was $104,825.95.
4. The net cash flow benefits due Black-hawk Heating & Plumbing Company, Inc. pursuant to Paragraph 6(b) of the Option Agreement on February 28, 1971 were $289,004.16.
5. The Court finds that no cash payment was due in exercise of the Option Agreement.

The trial court’s order required Data Lease to specifically perform the 1970 option agreement by presenting the stock certificate representing 870,000 MNB shares along with the necessary documents to transfer 217,500 shares to Blackhawk and to request that MNB re-register the 217,-500 shares in Blackhawk’s name. In return, Blackhawk and Machata would execute a promissory note for $312,835.66 in favor of Data Lease. The final judgment for specific performance explained the effect of Data Lease’s failure to perform.

10. Should the Defendant Data Lease Financial Corporation for any reason fail to present said stock certificate, stock powers, and other appropriate transfer documents to the Miami National Bank with [sic] 15 (fifteen) days of the date of this Judgment, then this Judgment shall be deemed a cancellation of stock certificate No. 12681 and the Defendant shall be required to apply to the Miami National Bank for the reissuance of a new certificate issuing 217,500 shares of the Miami National Bank stock in the name of Blackhawk Heating & Plumbing Company, Inc. Further, by reason of this Final Judgment for Specific Performance, Blackhawk Heating & Plumbing Company, Inc. may itself apply for reis-suance of the 217,500 shares of stock as described above and shall be entitled from the date of this Judgment to all voting rights, dividends and other privileges appertaining to said 217,500 shares of the Miami National Bank stock presently registered in the name of Data Lease Financial Corporation.

On October 4, 1977, the date of entry of the final judgment, Blackhawk and Macha-ta executed and delivered the required promissory note to Data Lease. Black-hawk presented the final judgment to the MNB and requested it to issue Blackhawk a new stock certificate for 217,500 of Data Lease’s 870,000 shares. MNB refused to issue the shares. Blackhawk later discovered that pursuant to the 1973 loan and pledge agreement, MNB had honored Citibank’s request to register and issue the stock in the name of Citibank’s nominee, Johns & Co. Coincidently, the stock certificate issued to Johns & Co. bears the date October 4, 1977, and Citibank’s letter requesting this transfer bears the date October 5, 1977, the day following the issuance of the stock certificate in the name of Johns & Co. Blackhawk filed suit against Citibank, Johns & Co. and MNB in federal court alleging among other things conspiracy, tortious interference with contract and mismanagement of MNB.

In 1978, Blackhawk and Citibank executed a settlement agreement whereby Blackhawk ended its litigation against Citibank, Johns & Co. and the MNB. Black-hawk agreed to join with Citibank so each could gain the maximum recovery from the stocks held by Citibank. In 1979, Citibank sold Data Lease’s 870,000 MNB shares at a judicial sale ordered by the U.S. District Court for the Southern District of Florida and affirmed by the U.S. Court of Appeals for the Fifth Circuit. Citibank, N.A. v. Data Lease Financial Corp., 645 F.2d 333 (5th Cir.1981).

Meanwhile, the trial court denied Citibank’s motions for intervention and substitution in this case. Citibank based its motion for intervention upon the 1973 pledge agreement with Data Lease and based its motion for substitution upon the 1978 settlement agreement with Blackhawk. Notwithstanding Citibank’s interlocutory appeal, the trial court proceeded on Data Lease’s motion to conduct a final hearing on November 9, 1979. The trial court found that Blackhawk had received the benefits of the 1977 specific performance order, ordered Blackhawk to pay Data Lease $2,431,481.22, and also found that Blackhawk and Machata jointly and severally owed Data Lease $500,982.74 on their 1977 promissory note. This Court affirmed the trial court’s order denying substitution, but reversed the order denying Citibank’s motion to intervene and vacated the final judgment entered during the pendency of Citibank’s interlocutory appeal. Citibank, N.A. v. Blackhawk Heating & Plumbing Co., 398 So.2d 984 (Fla. 4th DCA 1981).

On October 21,1981, the trial court made the same findings of liability as it did in the 1979 final judgment except for the sums due Data Lease, which it found amounted to $2,757,267.78 from Blackhawk and $545,-439.69 from Blackhawk and Machata with interest from October 10, 1981, at the judgment rate. The trial court expressly limited this order to adjudicate the rights of Blackhawk, Machata and Data Lease, not Citibank. The order withheld final judgment until a determination in the pending federal court action of the relative rights of Citibank and Data Lease. Blackhawk and Machata have appealed this order and Citibank has joined as a party appellant.

Blackhawk and Machata contend that the trial court erred when it required them to pay Data Lease for the 217,500 MNB shares which Data Lease failed to transfer pursuant to the 1977 final judgment which granted specific performance; that the trial court should have awarded Blackhawk damages for Data Lease’s failure to specifically perform within the terms of the option contract; and, that the trial court erred in dismissing Blackhawk’s claim against Data Lease’s President Roy W. Tai-mo based on his guarantee of Data Lease’s performance of the option agreement.

The 1977 final judgment purported to cancel Data Lease’s MNB stock certificate and give Blackhawk complete ownership of the 217,500 MNB shares, should Data Lease fail to effect a transfer of the shares. The problem with the specific performance order lies in the lack of the trial court’s jurisdiction over MNB stock certificate no. 12681, over Citibank which held a security interest in the MNB shares, or over the MNB. The specific performance order only affected Data Lease, Blackhawk and Machata. Therefore, the trial court could not grant any rights to Blackhawk in the 217,500 MNB shares without the cooperation of MNB and Citibank. Instead of cooperating, Citibank immediately requested MNB to register all 870,000 of Data Lease’s MNB shares in the name of Johns & Co.

We find no support in the record for Data Lease’s argument and the trial court’s finding that Blackhawk received all it asked for under the 1977 final judgment for specific performance. An analysis of the 1979 final judgment and the 1981 order satisfies us that the trial judge erred in concluding that Blackhawk received sufficient benefits under the 1977 judgment that it should now pay for stock which it never received from Data Lease.

The trial court found that Blackhawk derived a benefit because it received injunc-tive relief. However, the trial court overlooked the fact that during the interim between this Court’s decision and the decision of the Supreme Court reinstating the injunction, Data Lease pledged the stock to Citibank, thereby effectively eliminating any benefit from the injunctive relief granted by the Supreme Court. The trial court also found that Blackhawk had the right to have the stock voted to obtain seats on the Board of Directors of Miami National Bank. This finding ignores the fact that without registration of the stock in the name of Blackhawk, no such rights existed. More importantly,' immediately following the entry of the 1977 final judgment granting specific performance, Citibank exercised its rights to have the stock registered in the name of its nominee, Johns & Co.

The trial court also concluded that because Blackhawk prevailed in the specific performance action and may have utilized that final judgment to its advantage in its litigation with Citibank that Citibank’s ultimate settlement and compromise of that litigation effectively amounted to specific performance of the stock option agreement. We find this reasoning imaginative but without substance. At the time of the settlement, Citibank’s nominee owned all 870,000 shares of the MNB stock. Black-hawk, on the other hand, had a claim for damages arising out of the transaction between Citibank and Data Lease which at best could only have resulted in money damages. We will not conjecture as to the motives for Citibank entering into the settlement agreement with Blackhawk, but we cannot construe the settlement agreement as the equivalent of specific performance of the option agreement between Data Lease and Blackhawk.

Lastly, the trial court found that because Blackhawk, in 1974, entered into an agreement with Central National Bank of Chicago whereby it assigned such rights as it might have under the option agreement as collateral for a loan, that such action constituted a benefit .under the agreement. Blackhawk could not convey any more than it had received. The transaction with Central National Bank took place more than three years before the final judgment granting specific performance, and at a time when Data Lease had already pledged all 870,000 shares of MNB stock to Citibank.

Not even the most strained reasoning can support a conclusion that the benefits found by the trial court in its 1979 final judgment and 1981 order constituted specific performance of the option agreement which provided for Blackhawk to receive 217,500 shares of the MNB stock owned by Data Lease. The agreement contemplated delivery of the stock, registration of the stock on the corporate record books of MNB and those traditional benefits which flow to a stockholder by reason of its stock ownership. We do not consider the leverage gained from the 1977 judgment, nor the settlement agreement negotiated with a third party, nor the unfulfilled right to have seats on the Board of Directors of Miami National Bank, nor the assignment of an unfulfilled option agreement sufficient to support a finding that Blackhawk had received specific performance of the stock option agreement.

Our examination of Data Lease’s continuous conduct in derogation of Blackhawk’s rights in 217,500 shares of Data Lease’s MNB shares convinces us of the inequity of Data Lease’s position that it should be paid for stock which it would not and then could not deliver. Contrary to the trial court’s finding that Data Lease did all it could do to abide by the terms of the specific performance order, the record contains no indication of the slightest effort by Data Lease to do anything to aid Blackhawk in obtaining specific performance. In effect, the trial court’s order requires Blackhawk and Machata to fully perform all their obligations under the 1977 final judgment while receiving no direct benefits, and rewards Data Lease with the purchase price after Data Lease completely failed and refused to perform. Data Lease created its own problem when it embarked upon a scheme of financing and refinancing for the purchase of the 870,000 shares of MNB stock. We view this record as clearly demonstrating that when Data Lease pledged the stock to Citibank it took the ultimate step to prevent specific performance of Black-hawk’s option to purchase MNB shares.

The trial court, by its 1979 final judgment and 1981 order, substantially modified and materially altered the terms of the option contract. It had no authority to imply specific performance or to make a new contract for the parties. In the words of our Supreme Court,

[Ojne of the most firmly established principles of the law of specific performance is that the court will not make a new or different contract for the parties, simply because the one made by them proves ineffectual; and, ordinarily, it will compel the performance of a contract only in the precise terms agreed upon by the parties themselves. [Emphasis added.]

Giehler v. Ward, 77 So.2d 452, 453 (Fla.1955).

We therefore hold that Blackhawk did not receive specific performance of the option agreement and accordingly, we reverse the final judgment in favor of Data Lease Financial Corporation and against Black-hawk Heating and Plumbing Co., Inc., and Andrew Machata.

Blackhawk also contends that it should be awarded damages in lieu of specific performance. Data Lease on the other hand argues that Blackhawk made an election of remedies when it moved this Court to compel compliance with the mandate directing specific performance. It must be remembered that Blackhawk sought damages as an alternative to specific performance from the outset of this case. We do not consider Blackhawk’s continued efforts to obtain specific performance as an election of remedies. The Supreme Court held that Blackhawk was entitled to specific performance and, but for Data Lease’s pledge of the stock to Citibank and ongoing efforts to frustrate the orders of the Supreme Court and this Court, specific performance would have been an attainable result.

The trial court determined that the net cash flow benefits due Blackhawk pursuant to the option agreement amounted to $289,004.16. Data Lease had the benefit of Blackhawk’s credit and Blackhawk received no direct benefit from the option agreement. The Supreme Court noted that,

[t]his case was before the equity side of the trial court, and the gross inequity of Data Lease’s position is most apparent. It has gained financially after Blackhawk rescued it from financial disaster.

Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So.2d at 410.

Had Data Lease performed when Black-hawk exercised its rights under the option contract, Blackhawk would have had, at a minimum, the cash flow benefits which the trial court found due in its 1977 judgment. Therefore, equity compels us to remand this case to the trial court with directions to enter judgment in favor of Blackhawk Heating and Plumbing Co., Inc., and against Data Lease Financial Corporation in the amount of $289,004.16.

Our holding that Blackhawk is entitled to money damages from Data Lease requires us to consider Blackhawk’s final point concerning Roy W. Talmo’s liability based upon his personal guarantee of Data Lease’s performance under the option agreement. Count IV of Blackhawk’s second amended complaint alleged that Tai-mo remained personally liable to Black-hawk for damages resulting from Data Lease’s breach of the option agreement. We have examined the second amended complaint and Talmo’s guarantee of Data Lease’s performance and hold that the trial court erred in dismissing Blackhawk’s claim against Taimo.

Lastly, we need not determine Citibank’s rights in this litigation since Citibank and Blackhawk have resolved those questions by their settlement agreement.

Accordingly, we reverse the order of the trial court in favor of Data Lease and remand this case with directions to enter judgment in favor of Blackhawk and against Data Lease in the amount of $289,-004.16. We also remand for the purpose of entering a cost judgment against Data Lease for all taxable costs, including special master fees, accrued during the course of this litigation and for the trial court to determine Roy W. Talmo’s liability under his guarantee of Data Lease’s performance of the option agreement.

REVERSED and REMANDED with instructions.

ANSTEAD, C.J., and WALDEN, J., concur.

ON REHEARING

PER CURIAM.

The motions for rehearing and clarification are denied.

DELL and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents in part with opinion.

ANSTEAD, Chief Judge,

dissenting in part on rehearing:

I would grant rehearing to the extent of modifying our prior opinion so as to remand for a trial on the issue of damages.

      . Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 287 So.2d 118 (Fla. 4th DCA 1973); Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So.2d 404 (Fla.1974); Data Lease Financial Corp. v. Blackhawk Heating & Plumbing Co., 325 So.2d 475 (Fla. 4th DCA 1975); Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 328 So.2d 825 (Fla.1975); Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 352 So.2d 182 (Fla. 4th DCA 1977); Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 354 So.2d 1000 (Fla. 4th DCA 1977); Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 355 So.2d 533 (Fla. 4th DCA 1978); Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 358 So.2d 1204 (Fla. 4th DCA 1978), cert. denied, 364 So.2d 881 (Fla.1978); Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 370 So.2d 94 (Fla. 4th DCA 1979); Data Lease Financial Corp. v. Blackhawk Heating & Plumbing Co., 384 So.2d 211 (Fla. 4th DCA 1980); Citibank, N.A. v. Blackhawk Heating & Plumbing Co., 398 So.2d 984 (Fla. 4th DCA 1981).

      . Citibank, N.A. v. Data Lease Financial Corp., 645 F.2d 333 (5th Cir.1981), and other unreported decisions.

      . Citibank, N.A., formerly known as First National City Bank, is a national banking association located in New York, New York.

      . Citibank was not a party when the trial court entered its judgment granting specific perform-anee.


author: HERSEY, Judge.

text:
    A.G. EDWARDS & SONS, INC., a Delaware corporation doing business in Florida, Petitioner, v. Scott B. BING and Mary Ellen Bing, his wife, Albert P. McGarity, Linda G. Zingle, David W. Thompson and Kathryn D. Thompson, his wife, Respondents.
    No. 83-730.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Roger W. LaJoie of Sullivan, Cobb, Sullivan & LaJoie, Vero Beach, for petitioner.
    George H. Moss of Jones, Foster & Moss, Vero Beach, for respondents.
   HERSEY, Judge.

The parties (except two) entered into agreements containing arbitration clauses. Respondents argue and the trial court found (as we assume from the result) that the particular issue in controversy involves conversion of funds, a matter not covered by the arbitration clauses. Because we find that the questioned transactions are inextricably interwoven with respondents’ employment and the contracts controlling employment and having determined that petitioner’s pleading in the trial court did not constitute a waiver of the right to arbitration, we grant the petition for writ of certiorari, reverse the order of March 9, 1983, and remand this cause for the entry of an order requiring that the issues be submitted to arbitration. See Raymond, James & Assoc., Inc. v. Maves, 384 So.2d 716 (Fla. 2d DCA 1980).

CERTIORARI GRANTED.

LETTS and HURLEY, JJ., concur.