text:
    Arthur Joseph LOGAN, Petitioner, v. STATE of Florida, Respondent. Levy Riggins, Petitioner, v. State of Florida, Respondent.
    Nos. SC02-1649, SC02-1664.
    Supreme Court of Florida.
    April 17, 2003.

      Arthur Joseph Logan, pro se, St. Augustine, and Levy Riggins, pro se, Miami, for Petitioners.
    No Appearance, for Respondent.
   PER CURIAM.

Petitioner Arthur Joseph Logan has filed a petition for a writ of habeas corpus, see art. V, § 3(b)(9), Fla. Const., challenging the trial court’s denial of both his pro se motion to dismiss the charges against him and his pro se motion for bond reduction in two pending criminal cases, in which it is clear he is being represented by counsel. Petitioner Levy Riggins has filed a petition for a writ of prohibition, see art. V, § 3(b)(9), Fla. Const., challenging the trial court’s denial of his pro se motion for speedy trial discharge, filed in a pending criminal case, in which it is also clear he is being represented by counsel. We consolidate these cases for purposes of this opinion and, for the reasons expressed below, dismiss the petitions on the grounds that petitioners have no right to simultaneously represent themselves and be represented by counsel relative to the pending charges against them.

In Davis v. State, 789 So.2d 978, 979-80 (Fla.2001), this Court announced the policy “that we will not accept pro se filings in which there are claims of ineffective assistance of appellate counsel, requests to dismiss appellate counsel, or which supplement bases for relief from appellants on direct appeal of a death sentence.” We premised this policy on the fact that a criminal defendant does not have a federal constitutional right to self-representation on an initial appeal of right, see id. at 980 (citing Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597, (2000)), and our conclusion that “in Florida there is no state constitutional right to proceed pro se in direct appeals in capital cases.” Id. at 981.

We acknowledged in Davis that “[t]he decision to allow a convicted defendant the ability to proceed pro se in appellate proceedings is vested in the sound discretion of the appellate court.” Id. However, we also noted the necessity for curtailing, as a matter of policy, the pro se activity of defendants in direct appeals in capital cases, because we were seeing an increase in pro se filings in such cases. See id. Thus, we determined in Davis that “[p]ro se filings in direct appeals [in] capital cases in which there are claims of ineffective assistance of appellate counsel, requests to dismiss appellate counsel, or which supplement bases for relief [would] be docketed and then stricken.” Id.

The subject cases are representative of a similar problem this Court is having with regard to defendants in pending noncapital criminal cases. This Court has recently seen an increase in the number of these noncapital criminal defendants filing pro se petitions for extraordinary relief in this Court, asking this Court to grant them relief, either in the form of immediate release pending trial or absolute discharge from prosecution, while their cases are still pending in the trial court. What is clear in both the subject cases and other similar cases that have been filed with increasing regularity in this Court, is that the petitioners are represented by counsel in their pending criminal cases, and nothing in their petitions indicates that they have sought, or will be seeking, to discharge counsel in those proceedings. In these circumstances, the law on self-representation is clear.

More than twenty years ago, this Court explained that the Sixth Amendment to the United States Constitution, as interpreted in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), does not “guarantee that the accused can make his own defense personally and have the assistance of counsel.” State v. Tait, 387 So.2d 338, 339-40 (Fla.1980). Likewise, article I, section 16 of the Florida Constitution does not “embody a right of one accused of crime to representation both by counsel and by himself.” Id. at 340; see also Mora v. State, 814 So.2d 322, 328 (Fla.) (“[T]here is no constitutional right for hybrid representation at trial.”), cert. denied, — U.S.-, 123 S.Ct. 603, 154 L.Ed.2d 526 (2002). Thus, as the Fifth District Court of Appeal succinctly stated in Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980), shortly after this Court decided Tait, “[t]he defendant, under appropriate circumstances, has the constitutional right to waive counsel and represent himself. The defendant has no right, however, to partially represent himself and, at the same time, be partially represented by counsel.” Id. at 347 (citations omitted).

Because the extraordinary writ proceedings at issue in the subject cases are essentially an appellate component of the pending criminal proceedings, in which petitioners are represented by counsel, petitioners’ attorneys retain their status as counsel for the petitioners in this Court unless others are duly appointed or substituted. See Fla. R.App. P. 9.360(b) (providing that “[attorneys ... in the lower tribunal shall retain their status in the [appellate] court unless others are duly appointed or substituted”). Consequently, the petitions in the subject cases cannot be entertained on the merits as they were filed pro se and have not been adopted by counsel. See Carlisle v. State, 773 So.2d 647, 648 (Fla. 5th DCA 2000) (striking pro se petition for writ of mandamus seeking to compel circuit court to rule on petitioner’s pro se motion for reconsideration of the denial of a portion of the petitioner’s motion for postconviction relief because petitioner had been represented in the postconviction relief proceedings by court-appointed counsel, and, under rule 9.360(b), counsel retained his status as counsel in the appellate court unless others were duly appointed or substituted); see also Martin v. Bieluch, 786 So.2d 1229, 1230 (Fla. 4th DCA 2001) (dismissing pro se petition for writ of habeas corpus claiming entitlement to immediate release from confinement because the allegations in the petition demonstrated that the petitioner was represented by counsel in the trial court proceedings); Lewis, 766 So.2d at 289 (“[I]t is true that, generally, pleadings filed by a criminal defendant who is represented by counsel are treated as a nullity.”).

Only when a pro se criminal defendant is affirmatively seeking to discharge his or her court-appointed attorney have the courts of this state not viewed the pro se pleading in which the request to discharge is made as unauthorized and a “nullity.” See Lewis, 766 So.2d at 289 (“The courts have carved out an exception [to the rule that pleadings filed by a criminal defendant represented by counsel are treated as a nullity] permitting a criminal defendant who is represented by counsel to file a pro se motion seeking discharge of that counsel.”). The Fourth District Court of Appeal in Graves v. State, 642 So.2d 142, 143-44 (Fla. 4th DCA 1994), explained why this limited exception to the “nullity” rule was necessary to effectuate the holding in Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973), approved of in Hardwick v. State, 521 So.2d 1071, 1074 (Fla.1988).

In Nelson, the Fourth District held that “where a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent’s right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge.” Nelson, 274 So.2d at 258. The Fourth District further held that “[i]f incompetency of counsel is assigned by the defendant as the reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant.” Id. at 258-59. Finally, the Fourth District stated that “[i]f reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense.” Id. at 259.

The Fourth District in Graves explained that it would make no sense, and would ultimately result in more judicial labor being expended on the case than would otherwise be necessary, to enforce the “nullity” rule in those circumstances where a criminal defendant sought pro se to avail himself of the protections of Nelson:

In the first place, if the claim is that the appointed lawyer is not doing the lawyer’s assigned job, one might wonder how that failure would ever come to light and be appropriately remedied if the person who is suffering from this inadequacy is not permitted to do so. Simply ignoring a pretrial assertion of ineffectiveness of counsel means that the claim is left to be taken up in post conviction relief proceedings. The supposed rule that all pro se filings by represented defendants are a nullity thus makes no sense, at least in the circumstance of ineffective assistance of counsel, and may lead to a manifest injustice. It will almost surely result in a frequent squandering of public resources on wasted trials that have to be repeated.
In any event, the supposed nullity rule is contrary to Nelson. That decision makes no exception for pro se charges of ineffectiveness. Indeed it appears to have contemplated that it would be the defendant himself who would “make it appear.” Nothing in Nelson requires that such charges be raised only by appointed counsel or they will be treated as a nullity. Nor is there anything inherent in the Sixth Amendment basis for Nelson that requires a trial court to treat as nonexistent all papers filed pro se by a represented defendant in the pretrial phase.
Aside from the obvious problem with limiting nonperforming lawyer claims to being filed by only the allegedly nonperforming lawyers, there is simply no good reason to adopt such a rule. There is absolutely no reason to believe that the machinery of justice will become fouled by the filing of ineffective assistance of counsel claims by represented defendants. Those that present no basis for any action by the court can be safely rejected. The court has ample powers to treat any abuses of filing by overly litigious defendants.

Graves, 642 So.2d at 144 (citation omitted).

It should be noted, however, that the requirements of Nelson depend upon a clear and unequivocal statement from the criminal defendant that he wishes to discharge counsel. In Morrison v. State, 818 So.2d 432 (Fla.), cert. denied, — U.S. -, 123 S.Ct. 406, 154 L.Ed.2d 308 (2002), this Court recently explained that generalized complaints about court-appointed counsel’s trial strategy or lack of contact or communication with the defendant do not constitute the kind of unequivocal request to discharge counsel necessary to trigger the requirements of Nelson:

In Hardwick v. State, 521 So.2d 1071 (Fla.1988), this Court adopted the procedure announced in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), to be followed when a defendant complains that his appointed counsel is incompetent. When this occurs, the trial judge is required to make a sufficient inquiry of the defendant to determine whether or not appointed counsel is rendering effective assistance to the defendant. However, as a practical matter, the trial judge’s inquiry can only be as specific as the defendant’s complaint. This Court has consistently found a Nelson hearing unwarranted where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made. See Davis v. State, 703 So.2d 1055, 1058-59 (Fla.1997); Gudinas v. State, 693 So.2d 953, 962 n. 12 (Fla.1997); Branch v. State, 685 So.2d 1250, 1252 (Fla.1996). Similarly, a trial court does not err in failing to conduct a Nelson inquiry where the defendant merely expresses dissatisfaction with his attorney. See Davis, 703 So.2d at 1058-59; Branch, 685 So.2d at 1252; Dunn v. State, 730 So.2d 309, 311-12 (Fla. 4th DCA 1999).
In Dunn, the Fourth District determined that no Nelson hearing was required where the defendant expressed dissatisfaction with his counsel’s trial preparation, his witness development, and his lack of contact with the defendant. See Dunn, 730 So.2d at 312. According to the district court, the defendant was not clearly alleging that defense counsel was incompetent. See id. A lack of communication is not a ground for an incompetency claim. See Watts v. State, 593 So.2d 198, 203 (Fla.1992); Parker v. State, 570 So.2d 1053 (Fla. 1st DCA 1990). Moreover, in Branch, this Court found Nelson inapplicable where a defendant questioned defense counsel’s preparation for trial, as well as the amount of communication he had with the defendant. See Branch, 685 So.2d at 1250; see also Gudinas, 693 So.2d at 962 n. 12 (stating that a Nelson inquiry was not required because the defendant’s claim was a general complaint about defense’s trial strategy and not a formal allegation of incompetence).
Most recently, in Sexton v. State, 775 So.2d 923 (Fla.2000), this Court addressed a similar issue where the defendant claimed that the trial court erred in fading to adequately address the defendant’s request for new counsel, and said:
In the present case, it does not appear that [the defendant] made a formal allegation of incompetence entitling him to a Nelson hearing.... Because [the defendant] was merely noting his disagreement with his attorney’s trial strategy and preparation and was not asserting a sufficient basis to support a contention that his attorney was incompetent, we find this point on appeal to be without merit.
Accordingly, in the instant case, Morrison did not make a formal allegation of incompetence entitling him to a Nelson hearing. Although Morrison did make several requests to replace his counsel, the claims contained in the letters submitted to the trial court centered principally around Morrison’s dissatisfaction with the amount of communication between him and counsel. A lack of communication, however, is not a ground for an incompetency claim. See Watts, 598 So.2d at 203; Parker, 570 So.2d at 1058. Morrison also expressed displeasure with counsel’s refusal to provide copies of legal documents and efforts in contacting witnesses. These complaints can best be described as general complaints about his attorney’s trial preparation, witness development, and trial strategy. See Dunn, 730 So.2d at 312. As this Court repeatedly has stated, a trial court does not err in failing to conduct a Nelson inquiry where the defendant makes such general complaints and is not clearly alleging incompetence. See Davis, 703 So.2d at 1058-59; Gudinas, 693 So.2d at 962 n. 12; see also Dunn, 730 So.2d at 311-12.

Id. at 440-41 (some citations omitted).

Given that the limited exception to the “nullity” rule, as discussed in Graves, is designed to effectuate the holding in Nelson, the exception to the “nullity” rule cannot be triggered merely by a statement in a pleading that the defendant is generally dissatisfied with counsel or counsel’s performance. It must instead depend upon a clear statement from the defendant that he or she wishes to discharge court-appointed counsel due to counsel’s perceived ineffectiveness.

In Sload v. State, 782 So.2d 976, 976 (Fla. 5th DCA 2001), the Fifth District dismissed, as unauthorized, a criminal defendant’s pro se petition for writ of habeas corpus, initially filed in this Court and transferred to the Fifth District, even though the petitioner had expressed some dissatisfaction with counsel in his petition, because it was “clear from the allegations of [the] petition” that he had been represented by counsel at the time he filed his petition. The Fifth District further noted that Sload’s complaints about his counsel appeared to be issues that should be raised in the trial court. See id.

In Prevatt v. State, 776 So.2d 1114, 1114-15 (Fla. 5th DCA 2001), the Fifth District again dismissed, as unauthorized, a criminal defendant’s,pro se petition for writ of habeas corpus seeking pretrial release or a reduction in the amount of his bond, even though the petitioner stated in his petition “that his present incarceration makes it extremely difficult to consult with his defense attorney,” because a criminal defendant “cannot be represented by counsel and at the same time elect self-representation.” See also Howard v. Glover, 794 So.2d 674 (Fla. 1st DCA 2001) (dismissing petition for writ of habeas corpus on the authority of Prevatt).

The petitions filed by Logan and Rig-gins do not clearly state that the petitioners have discharged, or wish to discharge, their court-appointed attorneys in the pending criminal proceedings below. Therefore, the petitions are nothing more than attempts by Logan and Riggins to proceed both pro se and represented by counsel in the context of their pending criminal proceedings. Consistent with long-standing precedent in this state, this Court will no longer accept these attempts at “hybrid” representation.

We therefore dismiss the subject petitions as unauthorized and take this opportunity to announce that in the future, we will not entertain pro se extraordinary writ petitions from criminal defendants seeking affirmative relief in the context of pending trial court criminal cases, where it is clear from the face of the petitions that the petitioners are represented by counsel in the pending criminal proceedings and the petitioners do not clearly indicate that they are seeking to discharge counsel in those proceedings. If a petition clearly indicates that the petitioner is represented by counsel in the pending criminal proceeding, and the petitioner does not unequivocally seek to discharge counsel in that proceeding by way of the petition, the petition will be dismissed as unauthorized. In circumstances where it is not clear from the face of the petition whether the petitioner is represented by counsel in the pending criminal proceeding, and he or she does not unequivocally indicate in the petition that he or she is seeking to discharge counsel in that proceeding, the clerk’s office will automatically issue an order directing the petitioner to show cause why the petition should not be dismissed as unauthorized. At that point, it will be the petitioner’s burden to demonstrate that he or she is either not represented by counsel in the proceeding below, or that he or she is seeking through the petition to discharge counsel in that proceeding. If it is clear from the petitioner’s response to the show cause order that he or she is represented by counsel in the proceeding below and is not seeking to discharge counsel in that proceeding, then the petition in this Court will be dismissed as unauthorized. We believe this is the most prudent and efficient course because the vast majority of criminal defendants in these cases have a constitutional right to counsel and will have likely availed themselves of that right in the trial court. See Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (explaining that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), collectively stand for the proposition that anyone charged with a felony or any misdemeanor that might result in actual imprisonment has a Sixth Amendment right to counsel in those proceedings).

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

      . We recognize that by the time this opinion is released, the pending criminal cases against these two petitioners may have already reached conclusion, arguably rendering these proceedings moot. However, we elect to proceed with this opinion because the problem that these cases represent is capable of repetition yet evading review. See, e.g., N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000) (noting that this Court may address an issue presented by a technically moot case if the case "presents a controversy capable of repetition, yet evading review”); Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001) ("[MJootness does not destroy a court’s jurisdiction if the question raised is of great public importance or is likely to recur, or if the error is capable of repetition yet evading review.”) (citations omitted).

      . In Sheppard, a criminal defendant, represented by counsel in the Fifth District Court of Appeal in his direct appeal from his conviction, filed a "Motion” which, if properly before that court, would have constituted a petition for a writ of error coram nobis. See 391 So.2d at 347. The Fifth District noted that the defendant was represented on appeal by the public defender, who had been appointed at the defendant's request, and that the record in the appeal did not in any way indicate that the attorney had been either discharged or relieved from his responsibilities as counsel through substitution. See id. Concluding that the’ defendant could not both represent himself and be represented by counsel in the appeal, the Fifth District struck the pro se "petition” from the record in the appeal. See id. at 347.

      . See also Lewis v. State, 766 So.2d 288, 289 (Fla. 4th DCA 2000) ("A criminal defendant has no Sixth Amendment right to represent himself and, at the same time, to have the assistance of counsel.”); Salser v. State, 582 So.2d 12, 14 (Fla. 5th DCA 1991) (“We pointed out [in Sheppard] that the defendant may have the right under certain circumstances to waive counsel and represent himself but the defendant has no right to be represented for the purposes that suit him and unrepresented for other purposes.”); Stinnett v. State, 576 So.2d 927, 929 (Fla. 5th DCA 1991) ("Faretta does not entitle a defendant to 'hybrid' representation; there is no constitutional right of a defendant 'to choreograph special appearances by counsel.' "); Studnicka v. Carlisle, 567 So.2d 17, 17 (Fla. 4th DCA 1990) ("Petitioners who are represented by counsel should file pleadings only through counsel. A defendant who has court-appointed counsel may not act as co-counsel as a matter of right.”).

        .See Stallworth v. Moore, 827 So.2d 974, 976 (Fla.2002) (recognizing that a petition for a writ of habeas corpus filed in the appellate court is an appropriate method by which to seek immediate review of a trial court's decision on pretrial detention or bond); Sherrod v. Franza, 427 So.2d 161, 164 (Fla.1983) (holding that a petition for a writ of prohibition in the appellate court is an appropriate method by which to seek immediate review of a trial court's order denying a motion for speedy trial discharge).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Alberto Victor BATISTA, Respondent.
    No. SC00-2219.
    Supreme Court of Florida.
    April 17, 2003.

      John F. Harkness, Jr., Executive Director and John Anthony Boggs, Staff Counsel, Tallahassee, Florida; and Vivian Maria Reyes, Bar Counsel, Miami, FL, for Complainant.
    Patricia S. Etkin and Richard B. Liss of Weiss & Etkin, Plantation, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report and recommendation regarding attorney Alberto Victor Batista’s alleged ethical breaches. We have jurisdiction. See art. V, § 15, Fla. Const.

FACTS

The Florida Bar filed a three-count complaint against attorney Batista involving misconduct in Batista’s representation of four clients. In general, the complaint alleged that Bastista failed to complete the work he was hired to do and failed to communicate with his clients and the Bar. After the final hearing, the referee issued a report containing the following findings and recommendations.

Count I relates to Batista’s representation of a woman who was seeking social security benefits for her minor child. The client paid Batista $2000 and had two meetings and six telephone conversations with Batista. Batista canceled two other meetings the day before they were to occur and ultimately did not obtain the legal results for which he had been retained. The referee found that the client was partly at fault because she failed to obtain proof that the child's deceased father had been employed in the United States, which was necessary for such benefits.

Count II concerns a father and daughter who retained Batista to represent them in their separate legal problems. They paid Batista $4000 for both matters. The daughter asked Bastista to help her obtain a work permit and permanent residency status in the United States. The referee found that Batista failed to take any significant action to obtain the desired results. Further, he found that while the daughter was partly at fault because she failed to execute the required documents, this fact did not excuse Batista’s lack of diligence since an attorney subsequently retained by the client was able to secure a work permit for her.

Batista was also retained to help the father get his driver’s license reinstated. Batista assured the father that his driver’s license could easily be reinstated even though he had lost his license for life. However, Batista eventually learned that reinstatement of the father’s driver’s license would not be possible. Several years later, the father obtained a default judgment against Batista for $4000. Until two days before the trial on these disciplinary matters, the judgment remained unsatisfied.

Based on these findings of fact, the referee recommended that Batista be found guilty of having violated rule 4-1.1 (competence), rule 4-1.3 (diligence), and rule 4-1.4 (communication), of the Rules Regulating the Florida Bar.

In addition to the findings of fact described above, the referee made findings of fact concerning behavior not set forth in the Bar’s complaint. The referee found that two days before trial, Batista sent his investigator to each of the complaining clients’ homes to offer them the return of their attorney fees if they would sign false affidavits stating that Batista had done a good job, that they were satisfied with his work, and that they never intended to pursue disciplinary procedures against Batista. Two of the clients accepted the refund of their attorney fees but did not sign affidavits, and one did not accept the refund. The referee concluded, however, that such conduct was not properly before him as a new substantive rule violation, and even if it had been, he would not have concluded that the conduct rose to the level of a true witness-tampering rule violation.

As to discipline, the referee recommended that Batista be suspended for a period of two years and be required to pay the Bar’s costs and reimburse the attorney fees incurred by the client discussed in count I of the Bar’s complaint. He further recommended that Batista be required to pay all costs and restitution before being allowed to file a petition for reinstatement.

Batista petitioned this Court to review the referee’s report, challenging the findings of fact and the recommendations as to guilt and discipline. The Bar cross-petitioned for review, seeking disbarment.

ANALYSIS

I. Findings of Fact and Recommendations as to Guilt

A referee’s findings of fact are presumed correct and will not be overturned unless they are “clearly erroneous or lacking in evidentiary support.” See Florida Bar v. Hayden, 583 So.2d 1016, 1017 (Fla.1991); see also Florida Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998) (when such findings are adequately supported, “this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee”).

Batista challenges the referee’s findings that he failed to communicate with his clients and that, due to his lack of diligence, he failed to provide his clients with satisfactory results, in violation of rules 4-1.3 (diligence) and 4-1.4 (communication). Batista asserts that he spent a great deal of time with all of his former clients and that the clients essentially sabotaged their own cases by failing to cooperate by obtaining needed information. Batista also argues that although one of his former clients was able to obtain a work permit after she hired a new attorney, it was because the law changed in 2000 and not because Batista had failed to be diligent.

However, in their testimony at the final hearing, none of the clients remembered spending much time with Batista or that he asked them for any additional information. Thus, while there was clearly conflicting evidence, the referee found the testimony of the complaining witnesses to be more believable than that of Batista. Because the referee is in the best position to judge the credibility of the witnesses, we defer to the referee’s assessment and his resolution of the conflicting testimony. See Florida Bar v. Fredericks, 731 So.2d 1249, 1251 (Fla.1999) (“The referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not b'e overturned absent clear and convincing evidence that his judgment is incorrect.”); Florida Bar v. Thomas, 582 So.2d 1177, 1178 (Fla.1991) (same); Florida Bar v. Hayden, 583 So.2d 1016, 1017 (Fla.1991) (where testimony conflicts, referee is charged with responsibility of assessing credibility based on demeanor and other factors). Further, as to Batista’s assertions regarding a change in the law which permitted one of the clients to obtain a sought-after work permit, the gravamen of the complaint in this instance is not that the desired result was not obtained but that Batista failed to timely recognize and communicate to his clients that such result could not be obtained. Accordingly, having sustained the referee’s findings of fact, we also approve his recommendation that Batista be found guilty of violating rules 4-1.3 (diligence) and 4-1.4 (communication).

Next, Batista argues that he did not violate rule 4-1.1 (competence) because no results were obtainable for these clients. Nevertheless, the referee found that Batista either should have known that he could not provide his clients with any relief or should have discovered that he could not do so within a reasonable amount of time and informed the clients without delay. This determination would require either that Batista already have an adequate level of legal knowledge or that he prepare himself by investigating the facts and the law. By not determining the probable outcome in his clients’ cases within a reasonable time and communicating the unavailability of the result, we conclude that Batista violated this rule. Therefore, we approve the referee’s conclusion that Batista violated rule 4-1.1 (competence).

Finally, concerning the findings of fact surrounding the witness-contact incident, Batista urges that he was simply trying to settle his litigation and make restitution, which he understood could be considered' in mitigation. However, the referee heard the testimony of the witnesses and concluded that Batista had improperly attempted to have the witnesses sign false affidavits in exchange for the return of their attorney fees. Again, this is a question of credibility—Batista’s versus that of the complaining witnesses. Because the referee is in the best position to judge the credibility of the witnesses, we again defer to the referee’s assessment and his resolution of the conflicting testimony. See Florida Bar v. Fredericks, 731 So.2d 1249, 1251 (Fla.1999). Accordingly, we approve the referee’s findings of fact in this regard.

III. Discipline

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because it is ultimately our responsibility to order the appropriate sanction. See Florida Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, this Court generally will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999). As noted, the referee recommended that Batista be suspended for two years and be required to pay the Bar’s costs and reimburse the attorney fees incurred by the client discussed in count I of the Bar’s complaint before being allowed to file a petition for reinstatement.

Batista argues that his due process rights were violated when the referee increased the severity of the recommended discipline based in part on witness-tampering allegations which were neither presented in the Bar complaint nor within the scope of the allegations set forth in the complaint. He notes that the referee asked the Bar whether these uncharged allegations could be considered, and the Bar advised the referee that he could consider them because the conduct occurred in the “midst” of the proceedings.

We agree with Batista that a new rule violation cannot be considered without adequate notice. Attorneys must be given reasonable notice of the charges they face before the referee’s hearing on those charges. See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); see also Florida Bar v. Price, 478 So.2d 812 (Fla.1985) (rejecting, based on due process concerns, a referee’s finding that attorney committed perjury during disciplinary proceedings because the conduct was not charged); Florida Bar v. Vernell, 721 So.2d at 705 (Fla.1998) (similar); Florida Bar v. Stillman, 401 So.2d 1306 (Fla.1981) (similar). A rule violation cannot be prosecuted during the same trial unless it is within the allegations of the Bar’s complaint. See Florida Bar v. Fredericks, 731 So.2d 1249 (Fla.1999); Florida Bar v. Vernell, 721 So.2d at 706.

Here, the witness-contact allegations were clearly not within the allegations set forth in the Bar’s complaint. Therefore, the referee properly refused to consider them as a new rule violation. The referee, however, did consider the conduct, made findings of fact in reference to it, and specifically stated that it “hurt [Batista’s] cause.” Thus, in essence, it appears that the referee considered the conduct as an aggravating circumstance.

Florida Standard for Imposing Lawyer Sanctions 9.2 provides, “Aggravation or aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” Further, standard 9.22(f) specifically lists “submission of false evidence, false statements, or other deceptive practices during the disciplinary process” as an aggravating factor which can be considered by the referee in recommending discipline. Here, the referee found that Batista attempted to have his former clients sign affidavits that essentially repudiated their Bar complaints. This constitutes a deceptive practice that the referee could consider in aggravation of the proper discipline. Thus, we conclude that the improper "witness-contact incident could properly be treated as an aggravating factor and that it could be utilized to enhance Batista’s discipline.

The Bar relies on Florida Bar v. Agar, 394 So.2d 405, 406 (Fla.1980), Florida Bar v. Gunther, 400 So.2d 968 (Fla.1981), Florida Bar v. Segal, 462 So.2d 1091 (Fla.1985), and Florida Bar v. Page, 475 So.2d 1236 (Fla.1985), for the proposition that disbarment is appropriate for Batista’s conduct in contacting the witnesses. We disagree and find that those cases are distinguishable as involving more egregious misconduct, multiple rule violations, and uncontested recommendations of disbarment.

As for the referee’s recommendation of a two-year suspension, case law reveals that a much shorter suspension would have been warranted had Batista not engaged in the additional improper witness contacts. See, e.g., Florida Bar v. Maier, 784 So.2d 411 (Fla.2001) (suspending attorney for sixty days followed by three years’ probation for failure to act with diligence in pursuing client’s application for alien labor certification, failure to keep client reasonably informed about status of that matter, and failure to timely respond to inquiries made by Bar); Florida Bar v. Morse, 784 So.2d 414 (Fla.2001) (imposing ten-day suspension for lack of diligence concerning delays in probating estate); Florida Bar v. Glide, 693 So.2d 550 (Fla.1997) (suspending attorney for ten days for failure to provide competent representation, lack of due diligence, lack of communication, failure to abide by client’s decision, dishonesty or fraud, and failure to disclose important facts in disciplinary matter); Florida Bar v. Daniel, 626 So.2d 178 (Fla.1993) (suspending attorney for thirty days for neglecting two separate client matters); Florida Bar v. Golden, 502 So.2d 891 (Fla.1987) (imposing ten-day suspension for lack of diligence concerning delays in probating estate); Florida Bar v. Shannon, 376 So.2d 858 (Fla.1979) (suspending attorney for ninety-one days where attorney neglected probate matter for over twelve years and charged excessive fees); Florida Bar v. Zyne, 248 So.2d 1 (Fla.1971) (suspending attorney for six months for neglect, failure to comply with court order, and previous failures to act diligently).

Based on the above-cited cases and in light of Batista’s improper witness contact during the Bar proceedings, we conclude that a ninety-one-day suspension, rather than a two-year suspension, is appropriate. See Florida Bar v. Frederick, 756 So.2d 79 (Fla.2000) (imposing ninety-one-day suspension where attorney required client to refrain from filing Bar complaint as part of written agreement settling client dispute, and referee found numerous aggravating factors including use of deceptive practices during disciplinary process); Florida Bar v. Fortunato, 788 So.2d 201 (Fla.2001) (imposing ninety-day suspension where attorney failed to file pleadings in cases leading to dismissal and had provided false, confusing, and deliberately misleading information during the disciplinary process).

Taking this into consideration, we therefore approve the findings of fact and recommendations as to guilt, but disapprove the referee’s recommendation that Batista be suspended for two years. Instead, we conclude that Batista should be suspended for ninety-one days. However, the record is replete with evidence that Batista is having emotional and anger problems that began prior to initiation of the present Bar complaints. There is evidence in the record that Batista is indeed working on the problems by taking part in a counseling program for attorneys. Further, while he and his counselor testified that he has begun to overcome his tendencies to blame others, Batista’s final argument to the referee made it clear that he has much work to do in this area. Accordingly, we order Batista to continue with his counseling. We understand that Florida Lawyers Assistance, Inc., offers mental health counseling services to attorneys who may need assistance in dealing with the difficult and stressful situations many attorneys encounter. Nevertheless, while we order Batista to continue his counseling as part of the rehabilitation process, Batista may utilize the counselor of his choice. With the aid of his counselor, Batista must formulate a concrete plan of action for learning to deal with his anger and his tendencies to blame others. While this plan need not be presented to this Court or the referee for approval prior to embarking on the plan, reports from the counselor are to be considered in determining reinstatement.

Accordingly, Alberto Victor Batista is hereby suspended from the practice of law for a period of ninety-one days. The suspension will become effective thirty days from the filing of this opinion so that Alberto Victor Batista can close out his practice and protect the interests of his existing clients. If Alberto Victor Batista notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Alberto Victor Batista shall accept no new business from the date this opinion is filed until the suspension is completed and he has been reinstated. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32899, for recovery of costs from Alberto Victor Batista in the amount of $2,044.92, for which sum let execution issue. Alberto Victor Batista is also ordered to provide restitution in the amount of $2000 to the client discussed in count I of the Bar’s complaint.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO and BELL, JJ., concur.

      . As concerns count III, the Bar alleged only that Batista failed to respond to the Bar and the grievance committee. Neither Batista nor the Bar disputes the referee's findings in this regard; therefore, we approve the referee’s recommendation that Batista be found guilty of violating Rule Regulating the Florida Bar 4-8.4(g) (failure to respond to Bar inquiry).

      . In considering discipline, the referee also took into consideration certain instances of "troubling” behavior on Batista's part. The referee noted that Batista tended to blame his problems on everyone but himself, and instead of concentrating on responding to the charges against him, he had chosen to attack his accusers and counsel for the Bar.


author: LEWIS, J. WELLS, J., PARIENTE, J., HARDING, Senior Justice,

text:
    DEPARTMENT OF REVENUE, Petitioner, v. Kelvin M. JACKSON, Respondent. Department of Revenue, Petitioner, v. Morgan P. Tillery, Respondent.
    Nos. SC01-913, SC01-914.
    Supreme Court of Florida.
    April 24, 2003.

      Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, FL, for Petitioner.
    R. Mitchell Prugh of Middleton & Prugh, P.A., Melrose, FL, for Respondents.
   LEWIS, J.

We have for review Department of Revenue v. Jackson, 780 So.2d 342 (Fla. 5th DCA 2001), in which the court certified its holding to be in conflict with the decision of the Fourth District Court of Appeal in Mascola v. Lusskin, 727 So.2d 328 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Facts and Procedural History

The facts of these consolidated cases are virtually identical. In each, the father was initially ordered to pay child support with the payment having been later increased to address support payment arrearages. After entry of these support orders, each father was incarcerated for a crime unrelated to the support obligation, at which time the father filed a petition seeking the suspension or abatement of his child support obligation until his release from prison. The petitions were based upon allegations of the father’s present inability to satisfy support obligations as a result of incarceration.

In each case, the trial court noted the interdistrict conflict with regard to the basic issue, but determined, as it was required to do, that the petition should be granted based upon the decision of the Fifth District Court of Appeal in Pickett v. Pickett, 709 So.2d 182 (Fla. 5th DCA 1998). The Department of Revenue (Department) timely appealed each order, and requested that the Fifth District Court of Appeal reconsider its Pickett holding in light of the Fourth District’s Mascóla decision. The Fifth District declined, stating: “Although this panel might decide these cases differently than did the Pickett panel, we elect to adhere to the rule of Pickett and certify that our decisions are in conflict with Mascola.” Dep’t of Revenue v. Jackson, 780 So.2d at 343. The Department has sought review in connection with the certified conflict, which requires this Court to determine whether a court should permit a parent to have a preexisting support obligation modified or suspended based upon an inability to fulfill the financial support obligation during a period of imprisonment.

Analysis

As the Fifth District recognized in its opinion below, two conflicting views have emerged from the decisions of the Florida district courts of appeal on the issue of the modification of child support payment obligations of persons while incarcerated based upon a diminution of income. In the instant action, the Fifth District determined that modification is appropriate and it should continue to adhere to its prior holding in Pickett v. Pickett rather than adopt the Fourth District’s analysis outlined in Mascola v. Lusskin. See Jackson, 780 So.2d at 343. In Pickett, the district court held that the trial court erred in imputing income for purposes of calculating child support to a father who was scheduled for sentencing on federal criminal charges, where there- was “no showing that the husband had the capability while he was in prison to earn the amount imputed to him.” Pickett, 709 So.2d at 183 (quoting Waugh v. Waugh, 679 So.2d 1, 3 (Fla. 2d DCA 1996)). The court in Pickett remanded the case to the trial court for consideration under the principles enunciated by the Second District in its Waugh decision. See id.

In Waugh, the Second District reversed the terms of an original support decree that was entered by the trial court while the father was incarcerated. See Waugh, 679 So.2d at 3. The trial court had imputed the father’s preincarceration income for purposes of calculating his child support payments. See id. The Second District deemed the income attribution erroneous because there was no showing that the father had the capability to actually earn the imputed amount while incarcerated. See id. Thus, while Waugh held only that a support decree entered when the father is in prison must include in its calculations the father’s present ability to pay, the court in Pickett extended this reasoning and applied it to circumstances where a support decree had been entered prior to the obligor’s incarceration, and modification was sought after the party had been imprisoned. See Pickett, 709 So.2d at 183.

In stark contrast to the decision of the court in Pickett, the Fourth District arrived at a contrary holding in Mascola v. Lusskin, 727 So.2d at 329. The Mascóla court held that “child support obligations may not be modified where the current decrease in income results because the payor has been convicted for attempting to kill the mother in order to eliminate the support obligation.” Id. at 333. Although the direct holding was expressed in terms limited to the specific facts, the reasoning of the court was constructed with broad statements directed to the principle that the commission of any crime is a voluntary action which the obligor knows may result in incarceration and unemployment, and any modification petition based upon this direct consequence should be rejected. See id. at 332. Although the Fourth District noted the conflict with extant Florida decisions to the contrary, it reasoned that the child support payments should not be modified based on the father’s decreased income resulting from voluntary conduct which resulted in incarceration. See id. at 333. While the holding was expressed extremely narrowly, application of the underlying reasoning adopted by the Fourth District would produce far-reaching results. We granted review of the instant case to resolve the conflict between these decisions rendered by District Courts of Appeal, and now conclude that we must quash the decision under review and remand with instructions.

Section 61.13, Florida Statutes (2001), provides a court that has entered an order requiring a parent to pay child support with continuing jurisdiction to modify the original order upon a showing of necessity to further the supported child’s best interest, when the child reaches the age of majority, or if there is a substantial change in the circumstances of the parties. See § 61.13(l)(a), Fla. Stat. (2001). Section 61.14, Florida Statutes (2001), contemplates that either party in the original action may seek modification of an order requiring the payment of support “as equity requires.” See § 61.14(l)(a), Fla. Stat. (2001). It further provides that “any unpaid payment or installment of support which has accrued up to the time either party files a motion with the court to alter or modify the support order” may not be reduced by the court. § 61.14(6)(a)(3), Fla. Stat. (2001). However, any unpaid amount that accrues after the filing of a petition to modify may be reduced upon entry of an order on the petition. See id. Moreover, although section 61.30, Florida Statutes (2001), provides presumptive amounts for child support payments based on the supporting parent’s monthly income and the number of children, the trial court is vested with discretion to vary the support amount after considering all relevant factors, including, but not limited to, the needs of the child, age, station in life, standard of living, and the financial status and ability of each parent. See § 61.30(l)(a), Fla. Stat. (2001).

This statutory framework provides the parameters within which the resolution of the current conflict must be reconciled. Florida simply does not permit a retroactive reduction of accrued amounts due for support, even if such an approach were in the best interests of both the child in having some amount, albeit smaller, actually paid, and the obligor parent in making a manageable payment rather than being faced with the often unattainable and unrealistic expectation to satisfy large vested arrearages. Recognizing the competing policies and divergent circumstances presented in this arena, we must find an answer that is predicated upon the fundamental goal of solving the human problem before us, rather than exacerbating an already difficult situation.

The instant action requires that this Court consider and address a purported internal conceptual conflict between the provisions in section 61.13 that provide a basis for the trial court to modify a child support decree when it is necessary to the child’s best interests, and those which allow modification when there is a substantial change in the parties’ circumstances. It is abundantly clear that a substantial change in circumstances, such as the incarceration of an obligor, certainly may not produce a result that is in a child’s best interests. Although the public policy considerations underpinning the arguments on either side have some compelling components, in the instant situation we believe that the child’s interest in receiving his or her support monies must generally supersede the obligor parent’s substantial change in circumstance resulting from incarceration. The full and timely remitting of child support payments is certainly in the best interests of the supported child. Therefore, any abatement or waiver of support payments owed to the child would certainly harm the interests of the child. See Imami v. Imami, 584 So.2d 596, 598 (Fla. 1st DCA 1991) (“[C]hild support is a right which belongs to the child.”); see also Cole v. Cole, 70 Ohio App.3d 188, 590 N.E.2d 862, 865 (1990) (“While [the parent] is incarcerated, the needs of his children are not diminished.... The only person to benefit if support is suspended would be [the parent].”).

Notwithstanding this logic, practical considerations weigh heavily here, and cannot be simply ignored. It is clear that a substantial change in circumstances will almost always occur when a parent becomes incarcerated and, as a result, is separated from the capacity to earn income. There are situations where earned income may not be a critical factor, but those cases are not the norm and our decision today is not directed to such circumstances. Moreover, a parent newly released from prison will, more likely than not, be without the means or ability to finance or satisfy a large accrued child support debt. Indeed, it is quite possible that he or she could never meet both the current payments and the debt that accrued during his or her imprisonment. See, e.g., In re Marriage of Barker, 600 N.W.2d 321, 323-24 (Iowa 1999) (holding that an incarcerated mother’s reduction in income while in prison justifies a modification of support payments that takes into account inability for future payment of accumulating debt). The key is to find that structure that will most benefit the child entitled to support through a plan designed for realistic payments. Payments actually made are, most assuredly, more important than mere paper judgments. We find that the result attained by the New Jersey Superior Court in Halliwell v. Halliwell, 326 N.J.Super. 442, 741 A.2d 638 (App.Div.1999), is a just and fair approach for the resolution of the issues presented today. To be sure, this approach may not have the answer to absolutely all human situations, but it does provide a practical solution which recognizes the realities of child support and incarcerated parents.

The court in Halliwell, considering the question of whether incarcerated parents should be entitled to modify their child support payments, reasoned that the trial court should defer consideration of an incarcerated parent’s motion for modification until the parent is released from custody. See id. at 646. Upon the parent’s release, the trial court should then consider the motion in light of the contemporary circumstances of all the parties involved and enter a judgment appropriate at that time. See id. Importantly, under New Jersey’s equivalent of section 61.14, this method eliminates the problem of vesting ever-increasing arrearage amounts because any payments accruing after the motion is filed may be modified, based upon the circumstances revealed at the hearing after the obligor’s release from prison. See id. This provides flexibility for the court to address all issues and construct a judgment that will both recognize the support obligation and provide a realistic plan for payment.

We conclude that the New Jersey court’s logic and course of action is well-founded, and that it recognizes and accommodates the competing concerns and interests presented in this case. Therefore, pursuant to section 61.14(l)(a), a parent seeking modification of child support payments because he or she is unable to pay the installments due to incarceration may file a petition to modify with the trial court that entered the original child support order. Thereafter, the trial court shall hold the petition in abeyance and place the matter on its inactive calendar for the term of the obligor parent’s incarceration. During this time, the petition is not subject to dismissal for failure to prosecute, and the relationship of the incarceration to support is good cause to delay activity. The support installments, although still outstanding according to the original payment schedule, do not accrue as a vested interest of the child to be reduced to judgment which cannot be altered. While the petition remains on the inactive calendar, the matter is not subject to the guidelines for proper disposition of cases provided in the Florida Rules of Judicial Administration. See Fla. R. Jud. Admin. 2.085(d)(1)(C).

Upon the obligor’s release, any party to the initial support arrangement may bring the original petition for modification to the trial court’s attention for resolution. At that time, the trial court shall conduct a hearing on the matter. In reaching a conclusion with regard to the resolution of support matters, the trial court should consider all current facts and equitable factors to determine a realistic plan for the payment of meaningful support, both past and future. The amount of child support which has accumulated after the fifing of the incarcerated parent’s petition for modification generally should not be reduced. Rather, after the obligor’s release from custody, the trial court should structure a schedule of prospective payments that, while possibly less than the payments originally decreed, is designed to enhance the probability that full reimbursement of the underlying amount will occur at some future time. In structuring the payment plan, the trial court should consider the contemporary circumstances of all parties concerned, while ultimately serving the best interests of the child in having all amounts ultimately paid in full if possible. To this end, the trial court should weigh the factors fisted in section 61.30(l)(a), the length of the obligor’s incarceration, the obligor’s present and future employment possibilities, and the total outstanding unpaid amount, as well as any additional considerations touching upon the obligor’s attempt, if any, to evade his or her child support obligations.

We reiterate that, in structuring the payment plan, the court must always be directed to designing an order that is in the best interests of the child, both technically and practically. Therefore, any accruals which vested prior to fifing the petition to modify remain and clearly must be paid in full. See Shufflebarger v. Shufflebarger, 460 So.2d 982, 985 (Fla. Sd DCA 1984) (“Unpaid child support is a vested right not subject to modification.”). Likewise, the total child support amounts which continue to increase after the fifing of the obligor parent’s petition generally should not be reduced, but may be restructured. Additionally, the court may modify the obligor’s current child support obligations, along with adjusting the amount of the obligor’s future payments of the unpaid support that has accumulated after the petition to modify was filed. See McArthur v. McArthur, 106 So.2d 73, 76 (Fla.1958) (holding that orders modifying child support payments that are effective as of the date of fifing of the petition to modify, or anytime subsequent thereto, are not retroactive solely because they refer back to the date of fifing). It is quite possible that the obligor’s payments toward the amounts accumulated after the petition to modify was filed will continue beyond the time that the child support obligations would otherwise naturally terminate, for instance when the child reaches the age of majority. See § 61.13(l)(a), Fla. Stat. (2001). However, because the amount of the accumulated support payments adjudicated in connection with the petition for modification will have become due, the trial court may require the obligor to continue making payments toward his debt. See Friedman v. Friedman, 508 So.2d 781 (Fla. 4th DCA 1987).

The above policy will result in the most equitable and fair outcome for all concerned. Parents have a legal duty to support their children. See § 61.09, Fla. Stat. (2001); see also, e.g., Cronebaugh v. Van Dyke, 415 So.2d 738, 741 (Fla. 5th DCA 1982) (“A minor child has a legal right to support from both parents in keeping with its needs and the parents’ ability.”). The paramount concern in this situation is to act in the best interests of the supported child. Cf. Overbey v. Overbey, 698 So.2d 811, 814-15 (Fla.1997) (holding that a motion to modify child support centers around a finding of the child’s best interest). Undeniably, the child’s interests are not served where the obligor parent is unable to fulfill his or her support obligations because there is no income while in prison. Under such circumstances, the child faces the hardship of simply not receiving the money he or she needs, regardless of whether the trial court modifies the incarcerated parent’s obligations. After the parent is released, however, the child is in a much better position if there is at least the possibility that not only will current support payments resume, but payment for an accumulated amount will be met — even if under a restructured payment plan. To the contrary, if we permit trial courts to suspend an incarcerated parent’s obligation to pay child support, the supported child will never receive the benefit of the support payments to which the child was entitled. Therefore, the child’s interests are certainly best served when courts do not modify an obligor parent’s child support payments simply because of the parent’s incarceration.

Nevertheless, this Court is not unaware of the practical realities facing an obligor parent who is recently released from prison. We recognize that if support payments simply accumulate and become judgments for vested arrearages, the flexibility necessary for attempting to secure actual future payments may be inhibited or entirely lost. Aside from any other debts which may have accrued, the child support arrearages and current support payments may be quite significant. Further, former inmates often experience difficulty in finding meaningful employment. However, such difficulties do not diminish a parent’s duty to support his or her child, nor do they outweigh the burdens faced by a minor child who must do without monetary support from the incarcerated parent. Our primary concern is that the child receives the support to which he or she is entitled. Of secondary concern are the parent’s difficulties — largely self-inflicted — resulting from incarceration due to criminal conduct unrelated to the support obligations. Additionally, our opinion today should not be construed as changing the current law governing the modification of child support payments of parents incarcerated for criminal contempt charges stemming from refusal to fulfill those support payments initially. See Betancourt v. Sanders, 629 So.2d 272 (Fla. 1st DCA 1993) (holding that an order for child support cannot be modified based upon a motion for contempt); Dep’t of Health & Rehab. Servs. v. Porbansky, 569 So.2d 815 (Fla. 5th DCA 1990) (same). Nor do we consider all conduct which results in incarceration as being of equal weight in the ultimate equation. Loss of freedom and the capacity to earn due to an attempt to eliminate either a parent or children to avoid support obligations may certainly be considered as a factor weighing against modification.

The ability to craft equitable and realistic payment schedules for obligors upon their release from incarceration does not exist under Justice Harding’s preferred resolution of this action. The remedy Justice Harding suggests is illusory and is no remedy at all. Indeed, if arrearages “accumulate and vest as a matter of law” while obligors are incarcerated, as Justice Harding would establish, the sums owed would be irreversibly fixed, thus completely preventing trial courts from fashioning “the appropriate remedy for the payment of arrearage and future support as circumstances require” upon release of the parent from imprisonment. Concurring in part and dissenting in part op. at 501. Therefore, we conclude that the more just approach is to hold the petition to modify in abeyance until a time when a thorough evaluation of the obligor’s ability to pay may be conducted, and a farsighted plan for payment may be established.

Secondly, Justice Harding’s suggestion that the approach we adopt today in some way burdens the trial court is a hollow argument without substance. We have been presented no basis as to how a trial judge would be burdened by simply permitting a written petition to remain in a court file located in the clerk’s office requiring no work or action on the part of anyone and independently we are unaware of any such burden. The filing of a petition requires no logistics or anything from a trial judge until the matter is scheduled for a hearing by the parties. The simple filing of a petition in a court file neither burdens the trial judge, nor does it even implicate logistics.

We believe that the procedures specified herein for permitting the extension of the time for payment of the child support, while the total debt for child support remains undiminished, strike the appropriate balance. It is essential that an obligor parent not be so discouraged by what he or she perceives as an insurmountable child support debt that he or she is tempted to forego paying both past amounts and the current support. Such an abandonment would only result in contempt charges filed against the obligor which could affect his or her credit report, result in additional financial hardship, or cause a return to incarceration. See § 38.23; § 61.14(6)(b)(l)d, (6)(d), Fla. Stat. (2001); see also Russell v. Russell, 559 So.2d 675, 676 (Fla. 3d DCA 1990) (holding that incarceration for civil contempt of court order to pay child support obligations must be based on a finding of the obligor’s present ability to pay). The vicious circle of debt and crime must be broken. Therefore, we believe that consideration of all factors and making provision for extending the payment plan for child support amounts over a length of time to be determined by the trial court, even if the payments for past support during minority must continue beyond the child’s age of majority, is the proper solution to the practical realities of this case. Our view is most closely aligned with that of the Mas-cola court, but we provide exceptions and a mechanism that will afford trial courts the ability to address accumulating support obligations without the problems associated with the vesting of interests in the increasing amounts and corresponding judgments.

For the foregoing reasons, we quash the decision of the Fifth District Court of Appeal in Department of Revenue v. Jackson, 780 So.2d 342 (Fla. 5th DCA 2001), and approve the Fourth District’s holding in Mascola v. Lusskin, 727 So.2d 328 (Fla. 4th DCA 1999), to the extent that it provides that an incarcerated parent may not automatically have his or her child support payment obligations modified based solely on a reduction in income resulting from incarceration. We reject the per se rale that would permit incarceration to be utilized as a basis to modify support, which would be tantamount to authorizing a suspension or abatement of support obligations in disguise and provide the alternative — a flexible procedure designed to encourage and accommodate the payment of support obligations.

It is so ordered.

ANSTEAD, C.J., QUINCE, J., and SHAW, Senior Justice, concur.

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

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

HARDING, Senior Justice, concurs in part and dissents in part with an opinion, in which WELLS, J., concurs.

WELLS, J.,

concurring in part and dissenting in part.

I concur in the decision to quash the decision from the Fifth District Court of Appeal and approve the decision in Mascola v. Lusskin, 727 So.2d 328 (Fla. 4th DCA 1999).

I do not join in the opinion. I believe that there are adequate procedures presently in place which will allow the circuit court to deal with the issues which are of concern to the majority. However, if the procedures need to be refined to deal with these issues, then specific concerns should be referred to the appropriate rules committee. I am opposed to creating special procedures in this Court’s opinions because those procedures are not subject to public comment and often conflict in application with existing rules. I am concerned that this opinion will create many problems in administration.

PARIENTE, J.,

concurring in part and dissenting in part.

I agree with the majority to the extent that it does not endorse a bright-line rule that a parent’s incarceration and inability to earn an income while incarcerated is a per se change of circumstances necessarily requiring a reduction or suspension of a child support obligation. In other words, I agree that there should not be an automatic modification of child support obligations when a parent is incarcerated. However, I dissent in part because ! do not endorse a per se rule that always requires a trial court to hold in abeyance a petition to modify while the parent is incarcerated.

I agree with the majority that, in cases where the parent is incarcerated for a crime that resulted from the attempt to avoid his or her child support obligation, such as the outrageous circumstances in Mascola v. Lusskin, 727 So.2d 328 (Fla. 4th DCA 1999), neither equity nor our case law would support modifying a child support obligation. Because section 61.14, Florida Statutes (2002), pronounces that equity is considered in any petition to modify, clearly there can be no equity in the reduction of a child support obligation of a parent who is incarcerated for a crime that resulted from the attempt to avoid his or her child support obligation. As the Mascóla court stated:

To paraphrase what Judge Pearson said in Waskin v. Waskin, 484 So.2d 1277 (Fla.App. 3d DCA 1986), the clean hands doctrine should surely disabuse a court of equity from relieving a father of his obligation to pay child support where the decrease in his financial ability to pay has been brought about by his voluntary act of attempting to kill the other parent to escape the duty to pay the support. 484 So.2d at 1277. It is especially ironic in this case that reducing support because of the criminal conviction would allow the father to accomplish his very motive for committing his crime — to avoid having to support his children.

727 So.2d at 332. The situation presented in Mascóla is very similar to the circumstance where the parent has become voluntarily unemployed in order to avoid a child support obligation and there is no question that the equities will not support a modification of child support. See, e.g., Bokinsky v. Bokinsky, 742 So.2d 809 (Fla. 2d DCA 1999).

However, the facts of the cases currently before the Court are in sharp contrast to the facts of a case such as Mascóla, where the specific crime for which the husband was incarcerated, the attempted murder of his wife and unborn twins, was committed for the specific purpose of eliminating his child support payment. See Mascola, 727 So.2d at 329 n. 2. In Department of Revenue v. Jackson, 780 So.2d 342 (Fla. 5th DCA 2001), Jackson had been ordered to pay child support for his daughter. See id. at 342. His weekly obligation was $32.25, which was later increased to $58.24 per week due to an arrearage. He was “later incarcerated for dealing in stolen property and for drug possession, and he filed a motion to abate child support during his incarceration.” Id. Jackson’s sentence was imposed in May 1998 and his present release date is June 2003.

At the hearing on his motion to modify, Jackson testified that “all of the crimes that was [sic] committed was because of a drug addiction ... because I was a drug addict and, therefore, the crime was committed by me.” Accordingly, unlike Mas-cola, it does not appear that Jackson committed the crime for which he was incarcerated in order to avoid child support. The trial court entered an order abating child support, which specifically stated:

While the Defendant is incarcerated, he shall have no obligation to pay child support since he has no present ability to pay support and the imputation of income for child support purposes would be improper.... Upon the Defendant being released from incarceration and/or obtaining employment through a work release program, the Plaintiff retains the right to reestablish child support obligations of the Defendant and also pursue child support arrearages, if any, by all lawful means.

Presumably, because the trial court abated the child support payments during incarceration, the ability to pursue arrearages refers to previously unpaid child support. Without the abatement of child support payments and presuming the $58.24 per week amount and a sixty-month (five-year) incarceration, Jackson’s arrearages during incarceration will total an additional $3,494.40.

In the consolidated case of Tillery, the record does not identify the crime that led to Tillery’s incarceration, but does reflect that he was sentenced to 37.5 months’ imprisonment. At the time Tillery filed his petition to abate, his child support obligation was $82 weekly and he was already in arrears for $15,501.59. Therefore, without abatement of the obligation while Till-ery is incarcerated, he will be in arrears an additional $12,300, making his total arrear-ages $27,801.59.

In the recent case of Holt v. Geter, 809 So.2d 68 (Fla. 1st DCA 2002), the First District adopted a bright-line rule that child support should never be abated during incarceration. Although the First District agreed with the Fourth District’s reasoning in Mascóla, there is nothing in the First District’s opinion indicating that Holt’s crime was related to an attempt to avoid his obligation to pay child support. The facts as alleged by Holt in his petition for modification indicate that he is serving a 72-month sentence received on June 20, 2000, that he did fully support his son from the time of his birth until 1999, and that he was remorseful that he could not continue to do so. Specifically, Holt stated:

Respondent would like noted that he is remorseful for being in the situation that he is in and not being able to fully support his son. Respondent did in fact fully support his son up until he was unable to due to his incarceration and has full plans of continuing this support after he is released back into society. [Respondent is also remorseful that is is [sic] not present to be the father that his son will need in this very impressionable time of his life, respondent understands that no amount of support can take the place of his physical and mental support that a Father can give to his son.

As of November 2000, Holt had a total arrearage of $6200 and was ordered to pay $172 per month, even while incarcerated. Thus, by the time he is released in 2006, Holt’s arrearage will total more than $17,000.

When a parent like Jackson, Tillery, or Holt is incarcerated, and the underlying crime was not committed for the purpose of avoiding child support, the two polar views are that child support should never be modified because the criminal behavior that led to the incarceration was voluntary, or that child support should always be modified because incarceration is a change of circumstance leading to reduction in the ability to earn income. However, in my opinion a third view is that incarceration is simply one factor to consider when determining whether to grant a modification of child support.

The undeniable fact is that incarceration leads to a dramatic change of circumstances and financial ability. Thus, except for the cases where a parent is incarcerated for a conviction that resulted from an attempt to avoid the child support obligation, a trial judge should not be prohibited from either considering or even granting a petition to modify based solely on the fact of incarceration at the time the petition is filed. Thus, in those cases, I depart from the majority opinion’s unbending rule of law that requires the trial court to hold a petition to modify in abeyance until the period of incarceration is over. See majority op. at 491. I see no reason to remove all discretion from the trial court to consider a petition to modify where there has been an undeniable change of circumstances due to a parent’s incarceration.

In those cases in which the crime for which the parent is incarcerated is not related to an attempt to avoid child support, the trial court should be able to .exercise its discretion. Some of the factors the trial court should apply when exercising that discretion include:

(1) the length of incarceration experienced for the current conviction and the anticipated remaining period of incarceration, (2) the earning potential of the incarcerated parent following release, (3) the amount of the existing child support award, and (4) the total amount of child support that will accumulate upon the incarcerated parent’s discharge.

Oberg v. Oberg, 869 S.W.2d 235, 238 (Mo.Ct.App.1993). See also In re Marriage of Hamilton, 857 P.2d 542, 544 (Colo.Ct.App.1993) (finding that in addition to obligor’s incarceration, the court must consider “the intentional nature of the crime, financial circumstances, likelihood of future income, and any possible intention to evade the support obligation”); Thomasson v. Johnson, 120 N.M. 512, 903 P.2d 254, 257-58 (Ct.App.1995) (holding that incarceration alone does not demonstrate an inability to pay support and that other factors including whether the parent has other assets or sources of income, the ability of the parent to earn income in the past and future, the length of the incarceration, the best interest of the child, and the unclean hands doctrine can all be considered in deciding whether modification is warranted). As the Oberg court stated:

The requirement to pay child support is not punitive but is an obligation imposed by parenthood to satisfy the needs of the parent’s child as completely as the parent’s circumstances reasonably permit. The courts must, therefore, exercise considerable discretion in this type of case just as they must in all cases in which the financial obligation of a parent to satisfy the needs of the parent’s child is at issue.

869 S.W.2d at 238.

In dissenting from the majority’s procedure, I am in no way minimizing the fact that it is the parent’s criminal behavior that led to the parent’s incarceration and inability to pay support. The reality is that by committing the crime, that parent has deprived the child of financial support as well as the parent’s involvement in the child’s life. The parent’s incarceration, however, was the punishment for the parent’s conduct imposed in a separate criminal proceeding. The fact of that incarceration should not be the sole basis for denying modification of child support in a civil proceeding. Instead, the court should look to the general principles governing child support modification.

Because “proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law,” Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997), the clean hands doctrine may bar the downward modification of child support in those cases, like Mascóla, where there was a finding that the parent’s incarceration resulted from a crime that was committed in an attempt to avoid child support. See 727 So.2d at 388. This approach is consistent with equitable rules barring profit from wrongdoing. However, sound public policy militates against a categorical rule preventing the trial courts from considering petitions to modify filed by incarcerated parents on a case by case basis. There is no reason to require the trial courts to treat parents who become incarcerated after the initial child support award any differently than other parents who face a change in circumstances.

The Department of Revenue (DOR), which is the appellant in both of these actions, acknowledges that if the initial child support obligation is established at the time that the parent is incarcerated, then it would be error to impute income to that parent without showing an independent source of income. As the Second District in Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996), observed in reversing a child support order based on the amount that the father was earning prior to incarceration:

“A court may impute income to a party who has no income or is earning less than is available to him based upon a showing that the party has the capability to earn more by the use of his best efforts.” Here, there was no showing that the husband had the capability while he was in prison to earn the amount imputed to him.

679 So.2d at 3 (citation omitted).

The DOR also agrees that after the parent is released from prison, a modification of future child support obligations may be appropriate. Further, the DOR acknowledges that where the parent, rather than being incarcerated for his or her criminal conduct, was placed on probation and thereafter suffered a reduction in earnings, a downward modification of the child support obligation would be appropriate. Regardless of whether the parent is incarcerated or on probation, it is the underlying criminal behavior that led to the ensuing reduction in income. I see no reason why a judge should be prevented from considering a petition to modify for a parent who is incarcerated when the trial judge would have discretion to consider the petition to modify if the parent were placed on probation for the same criminal behavior.

Similarly, a trial court has the discretion to modify child support payments if a parent’s income is reduced because the parent lost hospital privileges necessary to practice his or her profession due to alcoholism or a drug addiction. See Haas v. Haas, 552 So.2d 252, 254 (Fla. 4th DCA 1989) (husband’s loss of hospital privileges due to his alcoholism constituted sufficient change of circumstances to warrant reduction of alimony). Thus, I see no reason why we should prevent judges from considering petitions to modify filed by parents who are incarcerated for crime resulting from alcohol or drug addiction. The underlying issue is whether there has been a loss of the ability to earn income so that in fact the parent is unable to meet his or her present child support obligation. In response to Justice Harding’s opinion concurring in part and dissenting in part, I do not agree that we should in all cases equate a loss of employment due to incarceration with cases where the parent becomes voluntarily unemployed to avoid child support.

Consider these hypotheticals. If a person drives while intoxicated, becomes involved in an accident, receives injuries and as a result loses the ability to earn an income, the trial court may reduce the child support obligation based upon that loss of income. Similarly, if the person drives while intoxicated, becomes involved in an accident, is charged with DUI manslaughter, is sentenced to probation, and as a result loses the ability to earn an income, the trial court may reduce the child support obligation based upon that loss of income. However, if the person drives while intoxicated, becomes involved in an accident, is charged with DUI manslaughter, is sentenced to prison, and as a result loses the ability to earn an income, under the majority opinion the trial court will not be able to consider a reduction of the child support obligation based upon that loss of income until after the person is released from prison. I see no basis in the law for distinguishing the third example from the first two or for necessarily equating something like voluntary intoxication— or incarceration — with voluntary unemployment.

Although I believe that the trial judge should have the discretion to grant a petition to modify a child support obligation at the time it is filed by the incarcerated parent — unless the crime for which the parent is incarcerated is related to an attempt to avoid child support — I am not opposed to also giving the trial judge discretion to defer the petition to modify and to follow the procedures set forth by the majority. Factors that the trial court might consider in deciding whether to defer the petition include the length of the parent’s incarceration, the anticipated remaining period of incarceration, the earning potential of the parent following release, and the obligor’s prior record of timely payments. However, I also agree with Justice Wells that the matter should be referred to the appropriate rules committee to recommend how the deferral procedure should be implemented and to recommend factors for the trial courts to consider in deciding whether to grant the petition to modify or to hold it in abeyance.

Accordingly, although the majority is on the right track in its approach, in my view the majority goes too far in mandating that the trial court hold a petition to modify in abeyance in all cases of incarceration. I am unpersuaded that a per se rule that never allows for modification or that always requires deferral until incarceration is completed will actually benefit the child whose best interests we profess to protect, especially if the amount of the monthly child support obligation is significant and the incarceration lengthy. I would thus leave the matter in the trial court’s discretion guided by the principles enunciated in this opinion.

The State asserts that it wants to act in the best interests of the child; however, as these cases make apparent, incarcerating a parent who has a child and who has a child support obligation usually does not serve the best interests of the child. Although there are many cases where incarceration is necessary, the reality that we must face as a society is that incarceration makes it difficult if not impossible for a parent to support his or her child either physically or emotionally, and places a greater burden on the State to provide the unpaid support. Thus, with the increasing length of sentences and the increasing numbers of parents incarcerated, the fact that incarceration adversely affects a parent’s ability to support a child both materially and emotionally, and the societal fallout from tion failure, are factors that must be seriously considered when looking at alternative punishments for certain offenses. See State v. VanBebber, 805 So.2d 918 (Fla. 2d DCA 2001) (Altenbernd, Acting C.J., concurring) (writing separately “to encourage the legislature to consider authorizing more discretion for trial courts to impose adequate alternative punishments for DUI manslaughter”), review granted, 819 So.2d 139 (Fla.2002).

Alternatives to incarceration could embrace a balanced and restorative approach to criminal justice. This approach requires the offender to be held accountable for his or her criminal actions by recognizing the harm done, including indirectly to his or her child, and by imposing a solution that would enable the offender to seek to repair the harm resulting from his or her criminal behavior, including the continued payment of child support. However, given that there are no such options available at this time, I would afford the trial courts as much discretion as possible in deciding when and whether a petition to modify should be granted.

- In conclusion, I would quash the Fifth District’s decision in Jackson to the extent it provides that a parent’s incarceration is a change of circumstances that automatically requires a reduction or suspension of a child support obligation. Neither do I approve a bright-line rule, such as the one suggested by Justice Harding, that would require the trial court to deny the petition to modify without considering the fact of incarceration. I would provide the trial court with discretion to consider the petition to modify at the time the petition is filed so long as the underlying crime did not result from an attempt by the parent to avoid child support as in Mascóla. I would further provide the trial court with discretion to defer consideration of the petition to modify based on the procedures outlined in the majority opinion. However, I do not agree with the majority that all discretion to grant the petition to modify at the time it is filed should be eliminated. I would thus quash the opinion in Jackson and remand for reconsideration of Jackson’s petition by the trial court.

HARDING, Senior Justice,

concurring in part and dissenting in part.

I appreciate the majority’s effort to resolve a complex “human problem,” majority op. at 490, regarding the often large arrearage accumulated while one required to pay child support is incarcerated. However, contrary to the majority, I would resolve the competing policy interests involved by following the reasoning of the Ohio Sixth District Court of Appeals in Cole v. Cole, 70 Ohio App.3d 188, 590 N.E.2d 862, 866 (1990). There, the court reasoned that

[the incarcerated parent] could and should be treated as any other noncustodial parent liable for any money owed on his child support obligation. [The parent’s] inability to pay arose from circumstances which he could have reasonably anticipated. There are no guaranties of probation or other forms of disposition when convicted of a criminal offense. It is not “state action” which reduced his income, but his own willful acts. Thus, we find that incarceration, standing alone, does not warrant a finding of change of circumstances.

Thus, while one is incarcerated and does not pay support, I would allow any arrear-age to accumulate and vest as a matter of law. After the obligor is released from incarceration, the trial court can fashion the appropriate remedy for the payment of arrearage and future support as the circumstances require. If payment on the arrearage cannot be made, the arrearage can be reduced to judgment. I find that this resolution brings more certainty and consistency than the New Jersey resolution of the' issue, which the majority adopts, and more appropriately recognizes the benefit that should belong to the child rather than to the incarcerated parent.

Additionally, I am concerned that the procedure adopted by the majority will place an additional burden on already burdened trial judges and administrators. The logistics of managing a trial calendar with petitions filed by obligors who are incarcerated and who cannot be present for a hearing for a number of years will be difficult. A rule which would allow the arrearage to accumulate and vest as a matter of law while the obligor is incarcerated and permit the trial court, upon the obligor’s release, to fashion the appropriate remedy under the circumstances existing at that time appears to me to be a more workable and practical rule for all concerned.

WELLS, J., concurs.

      . We specifically note, however, that where an incarcerated obligor owns assets or otherwise has the financial ability to pay at the time he or she files the petition to modify his or her support obligations, trial judges may reduce child support arrearages to judgments to provide that the support obligations may be satisfied from these assets.

      . Section 61.14(l)(a), provides in pertinent part:
      Except as otherwise provided in s. 61.30(1 l)(c), the court may modify an order of support, maintenance, or alimony by increasing or decreasing the support, maintenance, or alimony retroactively to the date of the filing of the action or supplemental action for modification as equity requires, giving due regard to the changed circumstances or the financial ability of the parties or the child.
      (Emphasis supplied.)

      . In August 2000, the U.S. Department of Justice, Bureau of Justice Statistics reported that in 1999 there were an estimated 667,900 fathers and 53,600 mothers of minor children in state and federal prisons. See Christopher J. Mumola, U.S. Dep’t of Justice, Incarcerated Parents and Their Children 2 (2000). Further, an estimated 1.5 million children had a parent in prison in 1999, an increase of more than 500,000 since 1991. See id.

      . A balanced and restorative justice approach views crime as "more than a violation of the criminal law” but also as a disruption "in a three-dimensional relationship of victim, community and offender.” See Leena Kurki, U.S. Department of Justice, Incorporating Restorative and Community Justice Into American Sentencing and Corrections 2 (1999). It further recognizes that because crime "harms the victim and the community, the primary goals should be to repair the harm and heal the victim and the community.” Id. The goal of any case disposition should be to promote public safety, competency development and accountability. Further, sentencing that has been based on restorative justice principles has shown higher rates of compliance with payment of restitution amounts and in completion of community service. See generally Gordon Bazemore, A Vision for Community Juvenile Justice, Juv. & Fam. Ct. J., Fall 1998, at 55.