text:
    KSK GROUP, INC., Appellant, v. Maria Elisa MEDRANO, Appellee.
    No. 3D03-61.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Rasco, Reininger, Perez & Esquenazi and Paul Haralson, Miami, for appellant.
    Fine, Rasco & Martinez, for appellee.
    Before COPE, GERSTEN and GODERICH, JJ.
   PER CURIAM.

We agree with the trial court that the standards for issuance of a temporary injunction have been satisfied, and accordingly affirm the temporary injunction now before us. See Golden Shores Properties, LLC. v. Santopietro, 792 So.2d 644, 645 (Fla. 3d DCA 2001); Mercado Oriental, Inc. v. Marin, 725 So.2d 468, 469 (Fla. 3d DCA 1999).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard R. ZYNDA, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3344.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Richard R. Zynda, Jr., in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   PER CURIAM.

Richard R. Zynda, Jr., appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Finding no error in that order, we affirm it.

Defendant-appellant Zynda also appeals an order denying his motion for additional credit for time served. That appeal is moot, as the State has advised that the defendant has been released from custody. The defendant’s appeal of an order denying his motion to compel is dismissed as being from a non-appealable order.

Affirmed in part; dismissed in part.


text:
    Andrew PENDER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2659.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, LEVY and GREEN, JJ.
   PER CURIAM.

Andrew Pender appeals his conviction for purchase or possession with intent to purchase cocaine. We conclude that the trial court’s evidentiary ruling was consistent with section 90.614, Florida Statutes (2002); see also Charles W. Ehrhardt Florida Evidence § 614.1, at 565 (2002), and accordingly affirm the conviction.

Affirmed.


author: SCHWARTZ, Chief Judge.

text:
    Robert C. BOATWRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-471.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.

      Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Jason Helfant, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

Boatwright was on community control when he asked for and received permission to attend church services on a Sunday between 8:00 a.m and 12:00 p.m. Instead of returning at that time, however, he was caught up in the religiosity of the church services and went from there to the bishop’s home for group counseling until 5:30 p.m. when he was returned to his home by the same church bus which had picked him up in the morning. This appeal is from an order violating his community control and imposing a 15 year sentence on the underlying charges on the ground that, during the period between 12:00 p.m. and 5:30 p.m., he was unauthorizedly absent from his residence. We cannot approve such a decision, worthy as it is of Draco himself.

It is self-evident that Boatwright’s conduct did not, as required, constitute a “willful and substantial” violation of his community control. See VanWagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996); Johnson v. State, 668 So.2d 240 (Fla. 1st DCA 1996); Tobias v. State, 641 So.2d 194 (Fla. 4th DCA 1994); Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980); see also Navedo v. State, 847 So.2d 585(Fla. 3d DCA 2003)(voluntary surrender at 2:50 p.m. rather than 9:00 a.m. as agreed, de minimis deviation which did not vitiate agreement to mitigate sentence); Amaya v. State, 653 So.2d 1112 (Fla. 3d DCA 1995)(same; surrender at 3:30 p.m. rather than 9:00 a.m. as provided by plea bargain). Accordingly, we reverse the order and sentence under review and require that the defendant be restored to community control forthwith.

Reversed.

      . This decision shall take effect immediately without regard to the filing or disposition of any motion for rehearing.


text:
    Jontal R. LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-318.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.

      Jontal R. Lee, in proper person.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General (Fort Lauderdale), for appel-lee.
    Before GERSTEN, and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Jontal R. Lee (“defendant”) appeals the denial of his motion for post-conviction relief claiming his due process rights were violated when the trial court conducted an evidentiary hearing on his post-conviction motion without appointing counsel. We find no error below and affirm.

There is no automatic right to counsel in post-conviction proceedings, and appointment of post-conviction counsel is a matter solely within the discretion of the trial court. See Rivero v. State, 796 So.2d 633 (Fla. 3d DCA 2001); Schneelock v. State, 665 So.2d 1063 (Fla. 4th DCA 1995).

The factors to be considered by the trial court in exercising that discretion include an examination of the adversarial nature of the proceeding, the complexity of the proceeding, the need for an evidentiary hearing, and the need for substantial legal

research. See Graham v. State, 372 So.2d 1363 (Fla.1979).

[3] Here, the issues raised in the defendant’s motion are not complex and assistance of counsel is not “essential to accomplish a fair and thorough presentation of the petitioner’s claims.” See Schneelock v. State, 665 So.2d 1063 (Fla. 4th DCA 1995). We note further that it is the province of the trial court, not the appellate court, to evaluate whether the Graham factors have been met. We decline the defendant’s invitation to interfere with the trial court’s discretion in this regard, since to do so would encourage misuse of the appointment of counsel process in post-conviction proceedings.

Accordingly, we affirm the order below in all respects, finding no abuse of discretion in the denial of the defendant’s motion for post-conviction relief.

Affirmed.


text:
    COLLINS & AIKMAN PRODUCTS COMPANY, INC., f/k/a Collins & Aikman Group, Inc., Collins & Aikman Corporation, Edward S.G. Hicks, Jr., a/k/a Gunnar Hicks, Nabil Hansen and George A. Longtin, Appellants, v. TELEFLEX INCORPORATED, Sermatech International Incorporated, and Sermatech Engineering Group, Inc., f/k/a Sermatech Acquisition, Inc., Appellees.
    No. 4D03-764.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.

      David G. Mandelbaum and Harry Weiss of Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, PA, and Michael D. Eriksen of Romano, Eriksen, Cronin & Mullins, Lake Worth, for appellants.
    Robert J. Hauser and James W. Beasley, Jr. of Beasley & Hauser, P.A., West Palm Beach, for appellees.
   PER CURIAM.

Appellants seek review of a trial court’s order that granted appellees’ rule 1.540 motion to vacate a judgment. The initial judgment was entered upon a motion for summary judgment. The trial court granted the summary judgment motion in light of a post-trial decision and judgment of the Supreme Court of New York in related litigation. Collins & Aikman Prod. Co. v. Sermatech Eng’g Group, Inc., No. 606229/96 (N.Y.Sup.Ct. Mar. 22, 2001).

When the New York Appellate Court reversed the judgment in part, Appellees moved to vacate the Palm Beach County judgment. Collins & Aikman Prods. Co. v. Sermatech Eng’g Group, Inc., 297 A.D.2d 248, 746 N.Y.S.2d 698 (2002). The trial court granted relief noting that it had granted the motion for summary judgment on the basis of the New York judgment.

We find no error and affirm. This court’s affirmance is without prejudice to Appellants raising the claims of res judica-ta or collateral estoppel as defenses in the pending litigation.

POLEN, C.J., HAZOURI and MAY, JJ., concur.


text:
    Federico GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2172.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Federico Garcia, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).


author: GROSS, J.

text:
    Joel H. SEIDMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3842.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.

      Denise V. Powers of Denise V. Powers, P.A., Coral Gables, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for Appellee.
   GROSS, J.

On August 22, 2002, appellant, Joel H. Seidman, entered an open plea as to six counts of dealing in stolen property, pursuant to section 812.019(1), Florida Statutes (2001).

The plea arose out of a fraudulent viatical settlement scheme. Seidman obtained six life insurance policies, totaling $550,000.00, by misrepresenting to insurance companies that he was completely healthy, when in fact he knew he was dying from AIDS. Once the two-year “contestable period” of the policies expired, Seidman sold all six policies through a viatical settlement broker, pocketing $829,810.00.

As the first district has explained:
In the typical viatical settlement, a terminally-ill policyholder, known as a via-tor, sells the right to receive the proceeds of his or her life insurance policy to an investor usually through a viatical settlement provider. The viator is paid an amount equal to the discounted value of the death benefits under the insurance policy, which funds are usually required to provide for the viator’s medical and living expenses. The investor is responsible for the payment of the premiums under the policy. The investor obtains a return based upon the difference between the death benefits ultimately paid under the policy and the discounted amount paid to the viator, less the costs of any premiums and administrative fees .paid by the investor. The viatical settlement company receives a fee or commission depending upon the structure of the transaction.

Accelerated Benefits Corp. v. Dep’t of Ins., 813 So.2d 117, 118-19 (Fla. 1st DCA 2002).

At the plea conference, Seidman’s counsel claimed that “[t]here’s no victim here.” He contended that because the insurance policies were in effect, the premiums were up to date, and payment would be made at “some point” upon Seidman’s death, neither the insurance companies whose premiums were being paid nor the viatical companies who would receive payment upon Seidman’s death were victims in the case.

The state argued there were potential victims. One insurance company had already successfully contested payment on the policies. If the insurance companies do not eventually pay out the coverage because of the fraudulent transactions, investors who purchased Seidman’s rights under the policies will lose the amount of their investment. The state requested that a restitution order be entered against Seidman.

Before accepting the plea, the trial court made it clear to Seidman that restitution would be imposed if he accepted the plea and that he was not required to accept the plea. Seidman accepted the plea after a detailed colloquy.

The court sentenced Seidman to 20.25 months in prison as to all six counts, to be served concurrently, followed by ten years probation. The sentence was to run concurrently with his federal sentence. The court ordered restitution as a condition of probation, with the victims “as yet to be determined.” The court designated the Department of Insurance (“Department”) as the agency to hold restitution monies for the victims. The court explained that it would give the state the term of probation to seek out the victims.

Seidman argues that the court’s order “requiring restitution/disgorgement as a condition of probation is an illegal and improper sentence,” because it fails to identify a victim and because the Department is not a proper “victim” under the restitution statute.

Section 775.089, Florida Statutes (2001), states in part:

(l)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode,
unless it finds clear and compelling reasons not to order such restitution....

§ 775.089(l)(a)l.-2.

Seidman cites to cases that stand for the proposition that this state agency cannot be defined as a victim under this statute. Both Rodriguez v. State, 691 So.2d 568, 569-70 (Fla. 2d DCA 1997) and Knaus v. State, 638 So.2d 156 (Fla. 2d DCA 1994) hold that a sheriffs department does not meet the statutory definition of “victim.” See also Staudt v. State, 616 So.2d 600 (Fla. 4th DCA 1993) (holding that police agency is not a “victim” under restitution statute, and therefore defendant could not be ordered to pay for investigative costs under statute).

However, in this case, the Department is only a conduit for directing restitution money to the ultimate victims, not the victim who is to be made whole by the restitution. Thus, the cases cited by Seid-man are of no import here.

Nothing in the restitution statute prohibits the trial court from reserving jurisdiction to enter a specific restitution order until such time as the victims become identified. Just as the trial court can reserve jurisdiction when the amount of damages are not yet known, as a matter of public policy, there is no reason why a trial court cannot do so when the victims cannot be identified until some point in the future. Cf. L.O. v. State, 718 So.2d 155, 156-58 (Fla.1998) (stating that court recognizes that if trial court timely reserves jurisdiction as to the amount of restitution, it can set the amount at a later date).

AFFIRMED.

POLEN, C.J., and WARNER, J., concur.

      . Defense counsel indicated that appellant was presently serving a forty-one-month federal prison sentence for other life insurance fraudulent activity.


text:
    Luis RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1538.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Bennett H. Brummer, Public Defender, and Susan Martin, Special Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for Appellee.
    Before COPE, GODERICH and SHEVIN, JJ.
   PER CURIAM.

Luis Ramirez appeals his conviction for aggravated battery. We affirm.

Defendant-appellant Ramirez was charged with slashing the victim with a sword. The victim and other witnesses testified during the State’s case in chief. The defense called a witness in support of its defense of mistaken identification.

Over State objection, the defendant was allowed to show the jury the tattoos on his arms. The State had objected at sidebar that there was no proper predicate for this demonstration, because there was no evidence that the defendant had the tattoos on the date of the charged crime, and there was no mention of the tattoos in the arrest documentation.

After the defendant showed the tattoos to the jury, the trial court reconsidered and concluded that the State’s objection had been well taken. “It is incumbent upon the defense to make a showing, through appropriate witnesses, that the tattoos were present at the time of the crime.” Kulick v. State, 614 So.2d 672, 673 (Fla. 2d DCA 1993); see also Miller v. State, 667 So.2d 1009 (Fla. 3d DCA 1996).

Out of the presence of the jury, the court ruled that the State would be allowed to comment in closing argument regarding the absence of a predicate showing that the defendant had the tattoos on the date of the charged crime. The State pointed out that the defendant’s mother was present in the courtroom, and could lay the proper predicate if the defense so desired. The defense did not call the mother as a witness or otherwise establish the predicate.

During closing argument the State argued the absence of any evidence that the defendant had the tattoos on the day of the crime. The defense objection and motion for mistrial were denied. From his conviction, the defendant has appealed.

We conclude that the State’s argument was not fairly susceptible of being a comment on the defendant’s failure to testify, or to call witnesses. See Dufour v. State, 495 So.2d 154, 160 (Fla.1986); see also Rodriguez v. State, 753 So.2d 29, 39 (Fla.2000). The argument was phrased permissibly in terms of an absence of testimony from the witness stand.

Further, allowing comment on the lack of a proper predicate was a permissible remedy under the circumstances present here. Finally, “a party may not make or invite error at trial and then take advantage of the error on appeal.” Czubak v. State, 570 So.2d 925, 928 (Fla.1990) (citations omitted).

Affirmed.


text:
    Valation Curtis ELLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1644.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Bennett H. Brummer, Public Defender, and Susan Martin, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Metellus v. State, 817 So.2d 1009 (Fla. 5th DCA 2002).


author: STEVENSON, J.

text:
    Alvin BATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-182.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Carey Haughwout, Public Defender, Jef- • frey L. Anderson and Samuel A. Walker, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

A jury found Alvin Batson guilty of burglary of a dwelling and grand theft. Bat-son appeals his convictions, arguing, among other things, that the trial court erred in denying his motion to suppress evidence linking him to the crime. We find merit in his argument and reverse.

Deputy Turner testified that at around 2:00 a.m., on May 28, 2001, he responded to a call regarding a burglary at 5712 Guava Street. The deputy’s report reflected that the initial burglary call came in at about 12:25 a.m. Turner testified that he had been on road patrol for six years and was familiar with the area, describing Guava Street as a dead-end street that curves around like an “S.” The burglarized home is two blocks from the end of the street. Deputy Turner did not immediately go to the residence, but drove around the area looking for anybody and anything that seemed out-of-place.

By the time Turner arrived at the residence, three or four marked patrol cars were already there. Deputy Turner made his way to the residence’s backyard. While standing there, he noticed a small, red vehicle heading east on Guava and in the direction of the residence. As the car made the ninety degree turn to continue on Guava, the police vehicles would have come into view. Deputy Turner testified that, at that point, the vehicle came to an abrupt stop, backed into a driveway, made a U-turn and left the area. Turner thought this odd because, prior to coming down Guava, there were at least two places to turn around that are nearer to the no outlet sign. According to Deputy Turner, the vehicle came toward the residence on Guava Street at a speed of about fifteen to twenty miles per hour, but left the area at an estimated speed of twenty-five to thirty miles per hour.

On these facts, Turner concluded that the car’s occupants might have been involved in the burglary and made the decision to pursue and stop the car. Turner acknowledged that he had no information as to how many people were involved, what they looked like, or whether they fled by car or on foot. Turner followed the vehicle for a while and eventually pulled it over. As a consequence of the stop, police discovered items that had been taken from the Guava Street residence.

Batson sought to suppress the evidence that police obtained as a consequence of the stop, arguing that the police did not have the “reasonable suspicion” of criminal activity necessary to support the stop. The trial court denied Batson’s motion to suppress. In reviewing this ruling, we afford deference to the trial court’s factual findings, but any legal conclusions are reviewed de novo. See, e.g., Jones v. State, 842 So.2d 889 (Fla. 2d DCA 2003). Whether the facts are sufficient to give rise to a reasonable suspicion of criminal activity is a legal question. See C.A.M. v. State, 819 So.2d 807 (Fla. 4th DCA 2002)(on rehearing).

“An investigatory stop must be based on founded or reasonable suspicion that the vehicle’s occupants committed, are committing or are about to commit a crime.” Davis v. State, 695 So.2d 836, 837 (Fla. 2d DCA 1997). A mere suspicion of criminal activity is insufficient. See Hill v. State, 561 So.2d 1245, 1246 (Fla. 2d DCA 1990). The totality of the circumstances must be taken into consideration when determining whether the officer has a reasonable suspicion of criminal activity. See Grant v. State, 718 So.2d 238, 239 (Fla. 2d DCA 1998). Such circumstances include the time of day, the suspect’s appearance and behavior, “the appearance and manner of operation of any vehicle involved,” and any other unusual circumstances. Id.

Here, police responded to a call regarding a burglary at a residence on a dead-end street. Approximately thirty to forty minutes after the complaint was called in, Deputy Turner observed a car driving down that residential street in the direction of the burglarized home. At the point that the officer estimated that the marked patrol cars would have come into view, the car made a U-turn and left at a speed of about twenty-five to thirty miles per hour. The State suggests that the car’s evasive actions in response to the presence of the patrol cars tips the scales to the side of a reasonable suspicion. We disagree.

Admittedly, a suspect’s flight in response to the police is a factor that may be considered in assessing the existence of reasonable suspicion when there are other suspicious circumstances. See Hernandez v. State, 784 So.2d 1124, 1127 (Fla. 3d DCA 1999); Q.E.G. v. State, 569 So.2d 1313 (Fla. 1st DCA 1990). Here, the car’s “U-turn” is legally insufficient to support the inference that its occupants were attempting to evade the police which were gathered further toward the end of the cul-de-sac. It is certainly difficult to say that the vehicle “sped away” at twenty-five to thirty miles an hour. Thus, the only thing unusual about the circumstances was the late hour and the recently reported crime. The vehicle’s mere presence near the scene is insufficient to give rise to a reasonable suspicion that its occupants were connected to the recent burglary. See H.H. v. State, 775 So.2d 397 (Fla. 4th DCA 2000)(holding that facts were insufficient to support reasonable suspicion where the defendant was found riding a bike at about 1:00 a.m. a few blocks from scene of a bicycle theft); Moore v. State, 584 So.2d 1122 (Fla. 4th DCA 1991)(holding that the fact that defendant was riding his bike at 2:00 a.m. only two to three blocks from an apartment where a burglary was reported to be “in progress” was insufficient to support a reasonable suspicion that defendant was involved in criminal activity).

In sum, we hold that the trial court erred in denying Batson’s motion to suppress. Consequently, we reverse his conviction and remand for a new trial.

REVERSED and REMANDED.

STONE and WARNER, JJ., concur.

      . Batson has also argued that the trial court fundamentally erred by including the "remaining in” language in the burglary instruction. This issue has been resolved adversely to Batson. See Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003)(en banc).


author: ORFINGER, J.

text:
    Deborah MULLINS, Appellant, v. John KENNELLY and Patricia Kennelly, Appellee.
    No. 5D02-3137.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.

      Brent C. Miller and Thomas D. Hippel-heuser, of Law Office of Brent C. Miller, P.A., Tavares, for Appellant.
    James F. Spindler, Jr., of James F. Spindler, Jr., P.A., Crystal River, for Ap-pellee.
   ORFINGER, J.

Deborah Mullins and her attorney, Brent C. Miller, P.A., appeal an order assessing attorney’s fees against them pursuant to section 57.105, Florida Statutes (1999). For the reasons that follow, we reverse.

Mullins, through Miller, her attorney, sued John and Patricia Kennelly in May, 1999, alleging that Mullins was injured in December, 1997, when the Kennellys’ dog attacked the horse she was riding, causing the horse to fall and roll over on her. During the course of the litigation, the Kennellys’ deposed Mullins, her former husband, Keith, and their mutual friend, Christopher King. Mullins’s testimony was generally consistent with the allegations made in her complaint. However, Keith and King testified that Mullins gave conflicting versions of the accident, once claiming that a white truck spooked her horse, causing the accident, while another time asserting that a white dog, not the Kennellys’ black dog, spooked her horse. After those depositions were taken, more than a year passed without any record activity, and, following proper notice, the case was dismissed for lack for prosecution.

The Kennellys then sought attorney’s fees pursuant to section 57.105. After a hearing, the trial court awarded fees in equal shares against Mullins and Miller based on section 57.105, Florida Statutes (1999), for work performed by the Kennel-lys’ attorney subsequent to November 17, 1999, the date Keith and King were deposed. Mullins and Miller now appeal that order.

We must first determine if the 1999 revision of section 57.105 applies to this case. Section 57.105 was substantially rewritten effective October 1, 1999. Unlike its predecessor, fees may now be awarded if a party or its counsel knew or should have known that any claim or defense asserted was not supported by material facts, or the application of then exist-ing law to those material facts. Further, the 1999 version of the statute applies to any claim or defense, and does not require that the entire action be frivolous. That standard differs materially from the former version of 57.105, which limited fee awards to situations in which there was a complete absence of a justiciable issue of fact or law. Forum v. Boca Burger, Inc., 788 So.2d 1055, 1060 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla.2002).

Mullins and Miller argue that because the incident occurred, and the suit was filed, prior to October 1, 1999, the revised section 57.105 cannot be applied to this case. In some respects, we agree. The 1999 amendment to section 57.105 substantively changed the statute by creating rights to fees under circumstances not previously authorized. As a result, we conclude that the revised statute cannot be applied retroactively to papers filed, actions taken or matters occurring prior to the effective date of the amendment. See Love v. Jacobson, 390 So.2d 782 (Fla. 3d DCA 1980) (holding that prior version of section 57.105 would not be applied retroactively); accord McMahan v. Toto, 256 F.3d 1120, 1129 (11th Cir.2001); Porteous v. Fowler, 394 So.2d 154 (Fla. 4th DCA 1981). But that does not resolve the problem presented here because the trial judge sanctioned Mullins and Miller only for actions taken or positions maintained after the effective date of the statute.

The central purpose of section 57.105 is, and always has been, to deter meritless filings and thus streamline the administration and procedure of the courts. See Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 505 (Fla.1982). (“The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities.”); Visoly v. Sec. Pacific Credit Corp., 768 So.2d 482, 492 (Fla. 3d DCA 2000) (“The general policy behind awarding attorney’s fees for bringing a frivolous action is to discourage baseless claims, stonewall defenses, and sham appeals by sanctioning those responsible for unnecessary litigation costs.”). Although the statute, like Federal Rule of Civil Procedure 11 upon which it was modeled, “must be read in light of concerns that it will spawn satellite litigation and chill vigorous advocacy,” any interpretation of the statute must give effect to its central goal of deterrence. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).

Because section 57.105 is patterned after Federal Rule 11, we construe it as its prototype has been construed in federal courts, insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject. See generally Dep’t of Prof'l Regulation, Div. of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717 (Fla. 1st DCA 1989). In Rule 11 cases, the federal courts have adopted the view that whether conduct should be sanctioned should be measured by the standard in effect at the time of the conduct to be sanctioned. Corporate Printing Co., Inc. v. New York Typographical Union No. 6, 886 F.Supp. 340, 343 (S.D.N.Y.1995). See also Knipe v. Skinner, 19 F.3d 72 (2d Cir.1994). We endorse that view because such an interpretation helps achieve the prophylactic goal of the statute, while not retroactively penalizing a party for actions that occurred, or papers that were filed, when the earlier version of section 57.105 controlled. Because the trial court sanctioned Mullins and her attorney only for conduct that occurred subsequent to the effective date of the revised statute, we see no impediment to, or unfairness in, the application of the new standard. See Freedom Commerce Centre Venture v. Ranson, 823 So.2d 817 (Fla. 1st DCA 2002) (awarding attorney’s fees based on frivolous post-judgment filed after 1999 amendment to statute in case originally filed prior to amendment).

We conclude that the 1999 version of section 57.105 applies to actions taken, positions maintained or papers filed by Mullins and her attorney subsequent to the October 1, 1999 revision to section 57.105. Now, we must determine if the trial court abused its discretion in concluding that Mullins or Miller knew, or should have known, that Mullins’s position was not supported by the material facts necessary to establish her claim or would not have been supported by the application of then-existing law to those material facts.

That Mullins’s action was dismissed for failure to prosecute is of no particular significance. A dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) is not an adjudication on the merits. JB Int'l, Inc. v. Mega Flight, Inc., 840 So.2d 1147 (Fla. 5th DCA 2003). Although the revised statute has expanded the number of circumstances in which attorney’s fee may be awarded, an award of fees is not always appropriate under section 57.105, even though the party seeking fees was successful in obtaining the dismissal of the action. Read v. Taylor, 832 So.2d 219, 222 (Fla. 4th DCA 2002).

Mullins’s dispute with the Kennellys (or perhaps more accurately with Keith and King), is a classic “he said, she said,” wherein the credibility of the witnesses would have been weighed by the trier of fact had the matter proceeded to trial. See Declet v. Dep’t of Children & Families, 776 So.2d 1000 (Fla. 5th DCA 2001). The fact that the witnesses provided contradictory evidence does not necessarily compel the court to the conclusion that the action lacked factual support and was therefore sanctionable under section 57.105. The Kennellys concede that given the sworn testimony in the record, they would not have prevailed on a-motion for summary judgment and if the case had proceeded to trial, a motion for directed verdict would not have been sustainable. We therefore conclude that under the facts of this case, sanctions under either version of section 57.105 are not appropriate.

Given our disposition of the main issue in this case, we need not address the other issues raised on the main appeal, including whether one-half of the attorney’s fee award should have been assessed against Miller, the attorney. We are concerned, however, because of the obvious conflict of interest between Mullins and Miller, given Miller’s position, argued by the same attorney, that if section 57.105 fees are to be awarded, they should be awarded solely against Mullins and not against Miller. Because of this conflict of interest, it is, at a minimum, “incumbent upon the attorney facing a 57.105 proceeding to apprise the client of the conflict and the consequences of continued representation once the attorney has formed a reasonable belief that such representation will not be adversely affected. The attorney should document not only the disclosure, but also the client’s endorsement of the disclosure and the continuing representation.” Khoury v. Estate of Kashey, 533 So.2d 908, 909 (Fla. 3d DCA 1988); see The Florida Bar v. Ward, 472 So.2d 1159, 1162 (Fla.1985). In such circumstances, the attorney must consider whether the conflict “will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.” See R. Regulating Fla. Bar 4-1.7 cmt. Although it should be evident, we emphasize that a “lawyer’s own interests should not be permitted to have [an] adverse effect on representation of a client.” Id.

REVERSED.

PETERSON and MONACO, JJ., concur.

      . Section 57.105, Florida Statutes (1999), provides in pertinent part:
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      ía) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.
      However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

        . Section 57.105, Florida Statutes (1997), provides in pertinent part:
      (1) The court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party.

      . In Arenas v. City of Coleman, 791 So.2d 1234, 1235 n. 1 (Fla. 5th DCA 2001), we observed that under the 1999 amendment, "a party may be subject to section 57.105(1) sanctions if a party is not dropped or dismissed when it becomes evident that there is no longer a justiciable claim although the claim may not have been frivolous at the time it was filed.” Similarly, in Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 417 (Fla. 1st DCA 2002), Judge Padovano observed that under the revised statute a court may award a fee for a particular claim or defense even if the party against whom the award was obtained might ultimately prevail on another ground. Thus, it would appear that section 57.105 imposes a duty, or at least a penalty for failing to voluntarily dismiss a claim or a defense when it becomes clear that the claim or defense is untenable.

      . Although the goal of section 57.105 is laudatory, fairly and consistently applying the statute is problematic. "In the legal world, claims span the entire continuum from overwhelmingly strong to outrageously weak. Somewhere between these two points, courts draw a line to separate the nonfrivolous from the frivolous, the former category providing safe shelter, the latter subjecting attorney and client to sanctions.” Eastway Constr. Corp. v. City of New York, 637 F.Supp. 558, 574 (E.D.N.Y.1986). As Judge Gersten observed in commenting on the earlier version of section 57.105:
      We recognize that to some extent, the definition of "frivolous” is incapable of precise determination. Nevertheless, a review of Florida caselaw reveals that there are established guidelines for determining when an action is frivolous. These include where a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contracted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or to maliciously injure another; or (c) [sic] as asserting material factual statements that are false.

        Visoly v. Sec. Pacific Credit Corp., 768 So.2d 482, 491 (Fla. 3d DCA 2000) (footnotes omitted).
      While the revised statute incorporates the "not supported by the material facts or would not be supported by application of then-existing law to those material facts” standard instead of the "frivolous” standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for the imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis. While we recognize our inability to precisely define the revised standard for sanctions, we do not suggest that sanctions can never be imposed in a "he said, she said” case. Our conclusion is simply that section 57.105 sanctions are not appropriate based on the facts of this case.


text:
    Selena POLITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2856.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.

      James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges her sentences on the basis that the written sentences do not conform to the oral pronouncement of the judge. Although she might be correct, this issue was not preserved for review on direct appeal. Washington v. State, 814 So.2d 1187 (Fla. 5th DCA), rev. dismissed, 831 So.2d 675 (Fla.2002). The judgment and sentence are, therefore, affirmed without prejudice for appellant to file a motion pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure.

AFFIRMED.

PETERSON, GRIFFIN and TORPY, JJ., concur.


text:
    Jesus Manuel GIRONA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1857.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See King v. State, 817 So.2d 935, 937 (Fla. 5th DCA 2002) (to obtain revocation of a defendant’s probation, the state must prove by a preponderance of the evidence that the defendant willfully violated a substantial condition of the probation).

THOMPSON, C.J., SAWAYA and MONACO, JJ., concur.


author: PLEUS, J. SHARP, W., J.,

text:
    Sandra Diegel JOHNSON, Appellant, v. Irving Douglas JOHNSON, Appellee.
    No. 5D02-425.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.

      Eric K. Neitzke, of Eric K. Neitzke, P.A., and Steven J. Guardiano, Daytona Beach, for Appellant.
    Ivan K. Clements, Jr., of Ivan K. Clements, Jr., P.A., DeLand, for Appellee.
   PLEUS, J.

This is an appeal of a final judgment of dissolution of marriage. The former wife challenges aspects of the equitable distribution as well as the denial of her request for alimony. The parties were married for 13 years and had no children born of the marriage.

The standard of review is abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The test to be applied by this court is whether the trial court’s order is supported by competent evidence. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

The trial court entered a final judgment which addresses the issues raised by the former wife save for two. A trial court’s discretion is abused only where, based on the evidence before the trial court, no reasonable person would take the view adopted by the trial court and “[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris, 382 So.2d at 1203. We find no abuse of discretion. This opinion will address first the equitable distribution issues and then the issue of permanent alimony.

EQUITABLE DISTRIBUTION

No mention was made by the trial court in the final judgment of a $1,600 tax refund from the year 2000 which was retained by the former husband. No mention was made of proceeds from two life insurance policies on the former husband’s late father which the former husband kept for himself. These policies provided death benefits of $12,000 and the former husband testified the policies were purchased with marital funds.

We conclude the trial court erred in failing to divide the tax refund and the life insurance proceeds between the former wife and former husband.

PERMANENT ALIMONY ISSUE

The uncontroverted evidence was that the former wife had three affairs while married to the former husband. She claims the court denied her alimony because of these affairs. On that issue, the trial judge made the following findings:

14. The Court finds that adultery should not be considered as a bar to alimony in this case because there if [sic] no evidence that the adultery caused the waste or dissipation of marital assets. The Court finds that the adultery caused the marriage to be irretrievably broken.

The crux of the former wife’s argument for alimony is that she is 46 years old and suffers from numerous ailments including Crohn’s Disease. On the issue of the ■wife’s disability, the court noted:

18. The Court finds that the Wife’s Crohn’s Disease does not cause her to be totally disabled. The basis for Dr. Cheesman’s opinion that the Wife could not work was basically Crohn’s Disease would cause her to need to use the bathroom frequently which would be unacceptable to employers. The Court rejects this opinion and finds it unworthy of belief because the uncontroverted and undisputed facts are that the Wife was able to engage in sex with three men, strike up relationships, and carry on affairs with them. Further, the Wife was capable of driving more than 400 miles per week. The Court finds that an office setting is a far more suitable place for someone with Crohn’s Disease than an automobile. Therefore, the Court finds that the Wife retains the residual functional capacity to engage in a broad range of sedentary work. Indeed, the Wife currently engages in work that has exertional requirements far greater than sedentary. The Court accepts Dr. Cheesman’s opinion as to diagnosis, but rejects his opinion as to disability.

After a thorough review of the transcript, we find competent, substantial evidence in the record to support the final judgment. In Krafchuk v. Krafchuk, 804 So.2d 376, 380 (Fla. 4th DCA 2001), the court noted: “A twelve-year marriage is not considered a short-term nor long-term marriage, but rather falls into a ‘grey [sic] area.’ ” When a marriage falls within this “gray area,” a determination of entitlement to permanent alimony needs to be decided upon a review of other pertinent factors. We believe the court did just that. See Zeigler v. Zeigler, 635 So.2d 50, 54 (Fla. 1st DCA 1994) (citing Gregoire v. Gregoire, 615 So.2d 694 (Fla. 2d DCA 1992), and Ghen v. Ghen, 575 So.2d 1342 (Fla. 4th DCA 1991)). This is not a case, as the dissent suggests, in which the former wife has passed from relative comfort to poverty or “from prosperity to misfortune.”

This case is remanded to the trial court for a modification of the final judgment so that the former wife gets one-half of the tax refund and one-half of the insurance proceeds. Otherwise, the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

THOMPSON, C.J., concurs.

SHARP, W., J., concurs in part and dissents in part, with opinion.

SHARP, W., J.,

concurring in part and dissenting in part.

I agree the trial court erred in not awarding the former wife one-half of various cash assets which were established as marital, but which were not accounted for in the final dissolution judgment. I also agree with the majority opinion that a thirteen-year-old marriage is neither a short term nor a long term marriage, and accordingly under current case law, it falls in a grey area. However, in my view, the trial court breached its discretion in ruling that the former wife is not entitled to permanent alimony.

In making such a determination the trial court should consider factors other than the length of the marriage. Factors supporting an alimony award here are: the former wife’s failing health and disabilities; the disparity in the incomes between the parties, which is even greater than appears on the face of the judgment because of the trial court’s improper imputation of income to the former wife; and the fact that the parties enjoyed a relatively comfortable lifestyle during their marriage, which will drastically end for the former wife under the best of circumstances.

With regard to the equitable distribution of the parties’ marital assets, the trial court made an effort to make an equal division between the parties of those marital assets addressed by the court. However, at the trial, it was established without dispute that the former husband obtained and kept for his own benefit a $1,600.00 tax refund for the year 2000 and that he also kept and retained $12,000.00 in death benefits from insurance policies which were paid for by marital funds, on the life of the husband’s father who was living with the parties at the end of his life. The trial court’s failure to deal with these assets makes even more poignant its equal division of the wife’s $13,197.00 award for disability compensation from the Social Security Administration in January of 2000, due and owing effective October 1997. Had it dealt with those additional marital assets, they could have off-set the court’s award of half of the wife’s disability award to the former husband. Since the court did not do so, I agree the case must be remanded for modification of the final judgment to divide the tax refund and insurance proceeds.

But, the major problem in this case, in my view, is the trial court’s denial of permanent alimony to the former wife. The parties had few liquid assets, and left the marriage without substantial assets beyond splitting the $67,000.00 equity in the parties’ marital home. The former husband was 50 years old at the time of the dissolution and in good health. He had been a home builder and currently works as a truck driver. He earned $2,572.00 net, per month. The parties enjoyed a comfortable middle class standard of living during the marriage, and lived in a three-bedroom home with a pool, in a nice neighborhood.

At the time of the dissolution, the wife was 46 years old and suffered from numerous mental and physical disorders. Her most debilitating condition was Crohn’s disease. It causes her to have severe abdominal pains, described as feeling like “labor pains”. People with this disease may have to use the bathroom as much as twenty times a day. It rarely goes into remission, and the majority of patients with this disease die due to recurrent infections. This testimony was not refuted.

It was also established at trial that the former wife has a compression of her vertebra in her cervical spine, which limits her ability to turn her head. She has three compressed disks — one of which she said was the result of a fight with the former husband, when he shoved her against a door. She has had two surgeries for this condition, but cannot have surgery-on the third disk because the risk of loss of mobility is too high. She can only do work that allows her to look straight ahead. She also has hidradenitis suppurativa (dysfunctional sweat glands), and has suffered from psoriasis, urinary tract infections and kidney infections.

In addition, it was established at trial that the former wife has been treated for severe and chronic depression and anxiety, an eating disorder and an obsessive/compulsive disorder. This disorder causes her to check and recheck the doors of the house to make sure they were locked, and to check all plugs in the house to make sure appliances were unplugged. It could take her from thirty minutes to two hours to be able to leave her home. To keep her various chronic medical and mental problems under control, the former wife takes numerous medications daily, including Sul-fasalazine (used to treat bowl inflammation, diarrhea, and abdominal pain from Crohn’s disease) eight times a day, an antidepressant, and an anti-anxiety drug.

The former -wife’s mental health counsel- or testified at trial that her functioning level is 41. A person with a score in the 30’s is considered psychotic. Most people score in the 70s. The counselor was of the opinion that the former wife’s employability has been severely impaired, and she could never rejoin the work force on a regular, full time basis.

Dr. David Chessman, an osteopath who had examined the former wife, reviewed her medical records and consulted with her gastroentrologist, testified at trial. He said the greatest obstacle for the wife to stay in the work force was her unpredictable need to run to the bathroom because of her Crohn’s disease. He thought her ability to return to her previous work as a secretary, held some seven years pri- or to the dissolution, was poor, due to her limited ability to move her neck. In his opinion, the former wife would never be able to return to work on a full-time basis in the future, because her medical problems are permanent. According to Dr. Chessman, the wife would die within a year if her Crohn’s disease went untreated.

At the time of the dissolution, the former wife was receiving $712.00 per month in social security disability payments. She worked part time cleaning model homes, and earns from that job $250.00 net, per month. She testified she could not physically work more hours or full time at that job because of her medical conditions. She currently is living in a single-wide mobile home with her boyfriend, who contributes $258.00 per month towards the rent.

Despite the above testimony, which was not controverted, the trial judge found the former wife is not permanently and totally disabled, and that she is capable of working what amounts to a forty-hour week, or full time, at a minimum-wage job. The judge stated that the former wife could earn up to $700.00 per month without losing her social security disability benefits, although no evidence was presented to establish either fact.

Based on this record, the trial judge determined that the former wife’s income, post-dissolution would be $1,665.00 per month. This is composed of imputed income of $700.00 per month, “rent” income of $253.00, and $712.00 disability income. It appears the $700.00 figure is gross, not net. Even if the $700.00 imputed income is justifiable, the former wife’s income post-dissolution is less than 65% of former husband’s net earnings per month. While noting this is quite a disparity in earnings, the trial judge declared this disparity not so great that permanent alimony is warranted. I disagree.

I also disagree that there is any basis in this record to support the trial judge’s imputation of $700.00 income to the former wife. The former husband presented no testimony that the wife had the ability to work full time at a minimum-wage job and earn $700, net per month. When questioned at trial about her need for alimony, the former husband said: “I realize she does need money to survive.” In response to further questioning about her need for support funds to live on, he admitted: “Yeah, I imagine she does need some.”

In picking out the figure of $700.00 — the trial judge had only his imagination upon which to rely — the source of this number was what he thought she could earn (gross) without losing her social security disability payments. He then used this figure as her “net” in comparing the former wife’s with the former husband’s projected net incomes, post-dissolution. In order to net $700.00, obviously she clearly will have to earn more than that, and thus jeopardize her social security disability payments. That is clearly erroneous and punitive, and has no support in the evidence.

Merely concluding that the former wife can engage in “sedentary work” is not a sufficient basis to impute income. There was no testimony that the former wife could obtain such a job or hold such a job full time. On numerous occasions, this court has struck findings of imputed income where the trial judge fails to identify with particularity the source of the imputed income, and no evidence of this anticipated source is apparent in the record. See, e.g., Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002) (imputation of income to father for purposes of child support error where it was supported only by trial judge’s comments that he was not convinced father could not earn more than what he was earning); Warner v. Warner, 692 So.2d 266 (Fla. 5th DCA 1997) (imputation of income to husband was error where there was nothing in the record which suggested he was voluntarily underemployed or that he had been anything less than diligent in making efforts to improve his financial picture); Davis v. Davis, 691 So.2d 626 (Fla. 5th DCA 1997) (imputation of income was error where there was no evidence of the anticipated source of the imputed income). Although these rulings have been in favor of the husband, they should apply equally to the wife: “What’s sauce for the goose is sauce for the gander.”

Thus, in my view, the disparity in the parties’ incomes on a net basis, is far greater than found by the court. The former wife’s net income per month should have been her social security disability payments of $712.00 per month, plus her current earnings of $250.00 per month. I would not have included the $253.00 per month the former wife’s boyfriend pays towards the rent of the mobile home they both share, since that is for his own benefit not hers. The court should have been comparing a $962.00 net monthly income for the former wife with $2,572.00 net monthly income for the former husband.

This court has stated on numerous occasions that permanent alimony is appropriate if the income of the spouse seeking alimony cannot support that spouse in accordance with the lifestyle established during marriage, and the other spouse can afford to contribute some amount towards the support of the former spouse. Vitalis v. Vitalis, 799 So.2d 1127 (Fla. 5th DCA 2001). For purposes of determining entitlement to alimony, a spouse is not self-supporting just because he or she has a job and income. To the extent possible, a divorced spouse is entitled to live in a manner reasonably commensurate with the standard of living established during the marriage, even if that spouse is employed. Cerra v. Cerra, 820 So.2d 398 (Fla. 5th DCA 2002); Vitalis; O’Neal v. O’Neal, 410 So.2d 1369, 1371 (Fla. 5th DCA 1982). Under her present financial circumstances, the former wife has fallen far below her marital standard of living. The best living situation she can afford is to share a small mobile home.

In my view, the unstated reason in this case for denying the former wife permanent alimony was her admitted adultery. In emphasizing this fact in the majority opinion, the majority tacitly recognizes this is true.

Section 61.08(1), Florida Statutes, allows the trial court to consider the adultery of either spouse and the surrounding circumstances in determining the amount of alimony, if any to be awarded. However the trial judge in this case expressly said the former wife’s adultery should not bar an award of alimony because there was no evidence the adultery caused waste or dissipation of marital assets.

Despite that express statement, the judge relied on the circumstances surrounding the adultery to deny the former wife alimony. He rejected the opinion of the wife’s counselor that her mental condition precludes her from leaving the house freely and working full time, in part, because she was capable of having an affair. He also rejected her claim that Crohn’s disease caused her to be disabled and precluded her from full-time employment, again in part because she had an affair.

The trial judge also seized upon the fact, unfairly, I think, that the wife had previously driven her car in excess of 400 miles per week. I submit this is a factor that should be weighed in her favor and not against her, because the undisputed testimony was that much of this driving was to support the husband’s family. The former husband’s now deceased father lived with the parties during the last few years of his life. He was an amputee and suffered from Alzheimer’s. The former wife drove her father-in-law back and forth to his medical appointments and the VA hospital. She also picked him up from respite care in Lake City. Further, the former wife cared for the husband’s mildly mentally retarded daughter, who lived with them also, and who was unable to drive. The daughter had a young infant, and the former wife drove them to doctor appointments, to government agencies for various services, and back and forth from jobs.

In Noah v. Noah, 491 So.2d 1124 (Fla.1986), the Florida Supreme Court recognized that consideration of adultery, where appropriate under section 61.08, should be limited and not punitive. The court reaffirmed that “the primary standards to be used in fashioning an equitable alimony award are the needs of one spouse and the ability of the other to pay.” Noah, 491 So.2d at 1127. In my view, this factor should have played no part in this case.

The critical factors which were clearly established justifying an award of permanent alimony, were the former wife’s serious health and mental problems, her lack of substantial financial resources, and her diminished ability to earn income. In Grimes v. Grimes, 770 So.2d 293 (Fla. 1st DCA 2000), the court reversed a trial court’s denial of permanent alimony to the former wife after an approximate twelve-year marriage. The former wife, as in this case, was having serious heath problems, including cancer and depression, which put her ability to continue to work in jeopardy. The court said these were “critical factors” in determining she was entitled to an award of permanent alimony.

Not to award some amount of permanent alimony in this case, is in my view, a breach of discretion. Clearly as a result of the dissolution, the former wife has passed from relative comfort to poverty, or as the Florida Supreme Court said, she has passed “from prosperity to misfortune.” Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980). I also think it is an abuse of discretion on the part of this court not to award the former wife attorney’s fee for this appeal, in view of the considerable disparity between the parties’ financial status.

      . See Walker v. Walker, 818 So.2d 711 (Fla. 2d DCA 2002) (twelve-year marriage); Krafchuk v. Krafchuk, 804 So.2d 376 (Fla. 4th DCA 2001) (twelve-year marriage); Nelson v. Nelson, 721 So.2d 388 (Fla. 4th DCA 1998) (12)4 year marriage); Young v. Young, 677 So.2d 1301 (Fla. 5th DCA 1996) (15 year marriage); Gregoire v. Gregoire, 615 So.2d 694 (Fla. 2d DCA 1992) (eleven-year marriage).

      . Escudero v. Escudero, 739 So.2d 688 (Fla. 5th DCA 1999); Zeigler v. Zeigler, 635 So.2d 50 (Fla. 1st DCA 1994).

      . Brock v. Brock, 690 So.2d 737 (Fla. 5th DCA 1997); Cervoni v. Cervoni, 715 So.2d 282 (Fla. 3d DCA 1998); Warren v. Warren, 629 So.2d 1079 (Fla. 3d DCA 1994).

      . Artuso v. Dick, 843 So.2d 942 (Fla. 4th DCA, Apr.9, 2003) (failure to make express findings regarding the amount and source of the income imputed to mother for child support purposes warranted reversal); Ice v. Ice, 842 So.2d 220 (Fla. 1st DCA, Apr.8, 2003) (trial court erred in imputing a $25,000 salary to former wife).

      . § 61.16, Fla. Stat. (in determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties); Rosen v. Rosen, 696 So.2d 697 (Fla.1997)(under section 61.16, financial resources of parties is primary factor to be considered); Karpovich v. Karpovich, 739 So.2d 137 (Fla. 5th DCA 1999)(in view of unequal financial earning abilities of parties, ex-husband should have been required to pay some or all of ex-wife's attorney’s fees in dissolution proceeding); Akers v. Akers, 518 So.2d 292 (Fla. 5th DCA 1987) (trial court abused its discretion in awarding only a small portion of attorney’s fees to wife where former husband had superior ability to pay attorney's fees while wife had no liquid assets and very modest income); Nichols v. Nichols, 418 So.2d 1198 (Fla. 5th DCA 1982) (wife was entitled to an award of attorney's fees where she had no liquid assets and very modest income beyond alimony and child support and husband had superior ability to pay attorney's fees).


author: PLEUS, J.

text:
    CHAMPAIGN NATIONAL BANK & TRUST, Petitioner, v. SOS INDUSTRIES, INC., et al., Respondents.
    No. 5D03-1009.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    S. LaRue Williams and MaryEllen G. Koberg of Kinsey Vincent Pyle, P.A., Day-tona Beach, and Frances Floriano Goins of Squire, Sanders & Dempsey, L.L.P., Cleveland, Ohio, for Petitioner.
    J. Lester Kaney of Cobb & Cole, Dayto-na Beach, William Christopher Carmody of Susman Godfrey L.L.P., Dallas, Texas and Ian B. Crosby, Seattle, Washington, for Respondents.
   PLEUS, J.

Champaign National Bank and Trust seeks certiorari review of an interlocutory order denying Champaign’s renewed motion for judgment on the pleadings. We deny the petition for writ of certiorari.

Champaign argues that irreparable harm exists in this case to justify certiorari review based on an alleged pattern of harassment litigation to coerce Champaign to settle thus placing a “special burden” on Champaign. Certiorari is not generally available to review non-final interlocutory orders denying motions to dismiss or equivalent motions for judgment on the pleadings because the aggrieved party has a remedy on appeal. See Martin Johnson v. Savage, 509 So.2d 1097 (Fla.1987); H.L.O.T. Family Limited Partnership v. Magnolia Plantation Property Owners’ Ass’n, Inc. 801 So.2d 292 (Fla. 1st DCA 2001).

Certiorari is not a writ of expediency and cannot be used to circumvent the non-final appeal rule. See S.H. v. Dept. of Children and Families, 769 So.2d 452 (Fla. 5th DCA 2000); Hawaiian Inn of Daytona Beach, Inc. v. Snead Const. Carp., 393 So.2d 1201 (Fla. 5th DCA 1981). Champaign’s alleged “special burden” does not create irreparable harm to justify cer-tiorari review. Any alleged pretrial “harassment” should be addressed to the trial court in its sound discretion to control the case below.

PETITION DENIED.

THOMPSON, C.J., and GRIFFIN, J., concur.


author: THOMPSON, C.J.

text:
    Michele Gerardo PRONESTI, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3734.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.

      C. Michael Barnette, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Michele Gerardo Pronesti appeals his conviction for deriving support from the proceeds of prostitution, in violation of section 796.05(1), Florida Statutes. We affirm.

We write only to address Pronesti’s contention that the trial court erred in allowing an undercover officer to testify about what a female employee of Pronesti’s establishment told the officer. The undercover officer testified that he entered Pro-nesti’s club, Hollywood Nights, and sat at a table. A female employee approached the officer, sat on his lap, and rubbed her buttocks on him. She told the officer that the fun did not have to stop there and that there was a private room available. As directed by the employee, the officer gave Pronesti $50 and followed her into the private room. In the private room, the employee told the officer that the $50 he gave Pronesti would pay for oral sex, but that a tip would be nice.

Pronesti argues that the employee’s statements were inadmissible hearsay. We conclude that the state is correct in its contention that the employee’s statements constituted “verbal acts” rather than inadmissible hearsay because the statements established the nature of the offer the employee made to the undercover officer.

A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statement of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it. For utterances to be admissible as verbal acts, (1) the conduct to be characterized by the words must be independently material to the issue; (2) the conduct must be equivocal; (3) the words must aid in giving legal significance to the conduct; and (4) the words must accompany the conduct.

Banks v. State, 790 So.2d 1094, 1097-98 (Fla.2001). In Banks, the supreme court held that the defendant’s statement, “I need a dime,” was- not offered for the truth of the matter asserted, but to show that the defendant was a participant in a drug transaction. Id. at 1098. On the other hand, a statement that the defendant was not a snitch was inadmissible hearsay because it did not serve to explain the nature of the act or transaction, but instead directly implicated the defendant in the transaction. Id.; compare Arguelles v. State, 842 So.2d 939 (Fla. 4th DCA 2003) (holding that statements about the initial set up of the drug deal, about the money at the second meeting, and the need to show the cocaine to the defendant before the transaction was completed were all part of the transaction and thus verbal acts, rather than inadmissible hearsay, but statements that defendant was the middle man and that the money belonged to him were offered for the truth of the matter asserted and constituted hearsay).

In this case, the statements by the employee served to explain the transaction that occurred between her and the undercover officer, and were therefore admissible. Compare Banks; Arguelles. See also, e.g., State v. Connally, 79 Hawaii 123, 899 P.2d 406 (Haw.App.1995) (statement that defendant would perform sex acts for money was “verbal act,” or “operative fact,” demonstrating that defendant made the requisite offer proscribed by the prostitution statute); Charles W. Ehrhardt, Florida Evidence § 801.6 n. 4 (2001 ed.).

AFFIRMED.

PETERSON and PALMER, JJ„ concur.


author: GRIFFIN, J.

text:
    Donald E. MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-915.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    Donald E. Mitchell, DeFuniak Springs, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

The defendant has appealed the denial of his Rule 3.800(a) “Motion To Correct Sentencing Error.” Because this is his ninth collateral appeal/petition, this court issued a Spencer show cause order, ordering defendant to show cause why he should not be denied further pro se access to this court for any proceeding to further attack the conviction and sentence rendered below. The defendant’s response is refreshing and commendable: he admits he was wrong. He admits he relied upon the wrong law in asserting his claim, and he admits that the exact same issue was ruled upon on the merits by this court in the past. He says he is illiterate and relied upon the bad advice of other inmates. He asks that this court not bar him from further access, but instead issue a warning.

Notwithstanding appellant’s excuse, he is the one responsible for his court filings. He has apparently exhausted all available arguments concerning his sentence, and he has exhausted the court’s capacity for consideration of attacks on his 1989 Brevard County convictions. Appellant is therefore barred from any further pro se filings directed to these convictions.

AFFIRMED.

SHARP, W., and TORPY, JJ., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


author: hPER CURIAM.

text:
    In re Joseph R. CASANOVA.
    No. 2002-B-2155.
    Supreme Court of Louisiana.
    Nov. 22, 2002.
    Rehearing Denied March 21, 2003.
   hPER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joseph R. Casanova, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Two sets of formal charges were filed against respondent by the ODC. The first, 98-DB-078, was filed on October 23, 1998 and encompasses eighteen counts of misconduct involving six of respondent’s clients. The second, 99-DB-030, was filed on April 23, 1999 and encompasses three counts of misconduct involving three of respondent’s clients. The two sets of formal charges were consolidated by order of the hearing committee chairman on May 5, 1999.

98-DB-078

Counts I — III (The Green Matter)

Carla Green retained respondent to handle a divorce and child custody matter. Respondent neglected the matter, failed to refund the unearned portion of the legal fee he was paid, and failed to return Ms. Green’s file to her upon the termination of the representation. In addition, respondent failed to answer the complaint filed against him by Ms. Green, necessitating the issuance of a subpoena by the ODC.

[¡.The ODC alleges that respondent’s conduct in the Green matter violated Rules 1.3 (failure to act with diligence and promptness in representing a client), 1.16(d) (termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. Respondent answered the formal charges and generally denied any intentional misconduct.

Ms. Green did not appear to testify at the formal hearing on the merits. As a result, the hearing committee recommended that Counts I and II be dismissed, maintaining only Count III, pertaining to respondent’s failure to cooperate in the investigation of Ms. Green’s complaint. After consideration, the hearing committee concluded the ODC proved this violation by clear and convincing evidence.

Counts IV — VII (The Margiotta Matter)

Frank Margiotta retained respondent to handle a divorce matter. Respondent neglected the matter, failed to communicate with his client, failed to refund the unearned portion of the legal fee he was paid, and failed to return Mr. Margiotta’s file to him upon the termination of the representation. In addition, respondent failed to answer the complaint filed against him by Mr. Margiotta, necessitating the issuance of a subpoena by the ODC.

The ODC alleges that respondent’s conduct in the Margiotta matter violated Rules 1.3, 1.4 (failure to communicate with a client), 1.16(d), 8.1(c), and 8.4(g) of the laRules of Professional Conduct. Respondent answered the formal charges and generally denied any intentional misconduct.

Mr. Margiotta did not appear to testify at the formal hearing on the merits. As a result, the hearing committee recommended that Counts IV through VI be dismissed, maintaining only Count VII, pertaining to respondent’s failure to cooperate in the investigation of Mr. Margiot-ta’s complaint. After consideration, the hearing committee concluded the ODC proved this violation by clear and convincing evidence.

Counts VIII — IX (The Ban Matter)

Bonnie Ban retained respondent to handle a bankruptcy matter. Respondent failed to provide competent representation to his client and failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Ban.

The ODC alleges that respondent’s conduct in the Ban matter violated Rules 1.1(a) (failure to provide competent representation to a client), 8.1(c), and 8.4(g) of the Rules of Professional Conduct. Respondent answered the formal charges and generally denied any intentional misconduct.

Ms. Ban did not appear to testify at the formal hearing on the merits. As a result, the hearing committee recommended that both counts relating to the Ban matter be dismissed.

Counts X — XIII (The Bourgeois Matter)

In July 1995, Garry Bourgeois retained respondent to handle a wrongful death claim arising out of the drowning of his daughter, Dana Bourgeois. Respondent timely filed suit in the matter, but thereafter neglected the case, failed to communicate with his client, and failed to return Mr. Bourgeois’ file to him upon the termi-nationjjof the representation. In addition, respondent failed to answer the complaint filed against him by Mr. Bourgeois, necessitating the issuance of a subpoena by the ODC.

The ODC alleges that respondent’s conduct in the Bourgeois matter violated Rules 1.3, 1.4, 1.16(d), 8.1(c), and 8.4(g) of the Rules of Professional Conduct. Respondent answered the formal charges and generally denied any intentional misconduct.

After consideration, the hearing committee concluded the ODC proved these violations by clear and convincing evidence.

Counts XIV — XV (The Demarest Matter)

Candace Demarest retained respondent to handle a divorce and child custody matter. Respondent neglected the matter and failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Demarest.

The ODC alleges that respondent’s conduct in the Demarest matter violated Rules 1.3, 8.1(c), and 8.4(g) of the Rules of Professional Conduct. Respondent answered the formal charges and generally denied any intentional misconduct.

Ms. Demarest did not appear to testify at the formal hearing on the merits. As a result, the hearing committee recommended that both counts relating to the Demarest matter be dismissed.

Counts XVI — XVIII (The Gullage Matter)

In May 1997, Sonja Tillery Gullage retained respondent to handle a domestic matter. Respondent received filing fees from Ms. Gullage, but he did not pay the fees to the court. In addition, respondent neglected the matter he was retained to handle and he failed to answer the complaint filed against him by Ms. Gullage, necessitating the issuance of a subpoena by the ODC.

|sThe ODC alleges that respondent’s conduct in the Gullage matter violated Rules 1.3, 1.15 (safekeeping property of clients or third persons), 8.1(c), and 8.4(g) of the Rules of Professional Conduct. Respondent answered the formal charges and generally denied any intentional misconduct.

After consideration, the hearing committee concluded the ODC proved by clear and convincing evidence that respondent neglected Ms. Gullage’s legal matter and failed to cooperate with the ODC in its investigation of the complaint Ms. Gullage filed. However, the committee found there was conflicting testimony regarding the sums paid by Ms. Gullage to respondent, and whether those funds were intended for court costs or for attorney’s fees. Accordingly, the committee concluded the ODC did not prove by clear and convincing evidence that respondent violated Rule 1.15 by failing to pay to the court sums intended for filing fees or other costs.

99-DB-030

Count I (The Hymel Matter)

Troy Hymel paid respondent $650 to handle two criminal matters. Respondent neglected the matters and failed to communicate with his client. In addition, respondent failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Hymel.

The ODC alleges that respondent’s conduct in the Hymel matter violated Rules 1.3, 1.16, 8.1(c), and 8.4(g) of the Rules of Professional Conduct. Respondent answered the formal charges and denied any misconduct.

Mr. Hymel did not appear to testify at the formal hearing on the merits. As a result, the hearing committee recommended that Count I relating to the Hy-mel matter be dismissed.

| RCount II (The Kraus Matter)

In 1995, Robert Kraus, Sr. retained respondent to handle a divorce and child custody matter. Respondent obtained the divorce and an interim custody judgment in a reasonable period of time; however, over the following two years, he failed, despite repeated requests, to obtain a judgment of permanent custody or to provide any adequate reason for the delay.

The ODC alleges that respondent’s conduct in the Kraus matter violated Rules 1.3 and 1.4 of the Rules of Professional Conduct. Respondent answered the formal charges and denied any misconduct.

After consideration, the hearing committee concluded the ODC did not prove the alleged violations by clear and convincing evidence. The committee found that the complaint filed by Mr. Kraus stemmed from a misunderstanding with respondent regarding the objectives of the representation, and that in any event, the two-year period of inactivity did not adversely affect Mr. Kraus’ interests or prejudice or compromise his rights.

Count III (The Marquet Matter)

In March 1998, Carolyn Marquet retained respondent to handle a divorce and ancillary matters. Respondent filed a petition for divorce and obtained interim spousal support for Ms. Marquet, but he never finalized the matter and faded to communicate with his client. Eventually, Ms. Marquet’s husband obtained a divorce and a reduction of the interim spousal support previously ordered; however, respondent did not notify Ms. Marquet of this fact. Moreover, although Ms. Mar-quet terminated respondent’s representation and requested an accounting, respondent failed to provide the accounting, failed to refund the unearned portion of the legal fee he was paid, and failed to return Ms. Marquet’s file to her.

|7The ODC alleges that respondent’s conduct violated Rules 1.3, 1.4, and 1.16(d) of the Rules of Professional Conduct. Respondent answered the formal charges and denied any misconduct.

After consideration, the hearing committee concluded the ODC proved by clear and convincing evidence that respondent neglected Ms. Marquet’s legal matter and failed to communicate with her. However, the committee found no evidence that respondent failed to release Ms. Marquet’s file to her in a timely fashion after being discharged, and hence concluded that he did not violate Rule 1.16(d).

Hearing Committee Recommendation

Considering the record, the hearing committee found that the baseline sanction for respondent’s misconduct is at least a reprimand but not more than a suspension from the practice of law. The committee determined that several aggravating factors exist, including prior disciplinary offenses, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law (admitted 1987). The committee also recognized several mitigating factors, including personal or emotional problems, good character and reputation, and remorse. The committee concluded, however, that while the aggravating factors heavily outweigh the mitigating factors, respondent is nonetheless reformable:

^Respondent herein does not appear to be completely unable to discharge his professional duties. In fact, Respondent seems to be a basically competent lawyer but lacks or has forgotten skills related to the business aspects of practicing law — heretofore unable to recognize and correct serious problems with his business practices and unwilling to place limitations upon his practice and the number of clients which might be adequately, professionally served by him. Respondent also seems to lack a sincere and healthy respect for the disciplinary process, exhibiting a reluctantly reactive rather than proactive approach to addressing disciplinary matters that involve him.
There seems to be a good chance for Respondent’s reform — but not without serious correction, rehabilitation and, unfortunately, deterrence. Four separate previous admonitions for similar professional negligence did not have the effect of correcting Respondent’s professional shortcomings nor of deterring Respondent from committing further similar acts of misconduct nor of protecting the public or the legal profession as a whole.... A license to practice law is both a privilege and [a] responsibility which must not be taken for granted. The safety and confidence of the general public — especially those individuals who might one day become Respondent’s clients — together with the integrity of the legal profession and the disciplinary process demand more than just another simple, easily-forgotten warning to Respondent.

Based on this reasoning, the committee recommended respondent be suspended from the practice of law for eighteen months, with all but six months deferred. Prior to reinstatement, the committee recommended that respondent be required to attend not less than six additional hours of CLE specifically related to law office management, and that upon reinstatement, he be placed on supervised probation for a period of eighteen months “for the purpose of ensuring that Respondent’s list of active clients does not swell again to such numbers as to overwhelm and greatly exceed Respondent’s abilities to serve them effectively/professionally and for the purpose of monitoring Respondent’s office and business practices regarding the manner in which he is servicing those clients.”

| ¡Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board agreed that the hearing committee’s factual findings are supported by the record, and that the hearing committee correctly applied the Rules of Professional Conduct. With respect to the failure to cooperate charges, the board found respondent acted knowingly or negligently and that his actions caused harm by requiring the ODC to expend additional time and money in attempting to obtain information and a response from him. With respect to the client-related charges (neglect of legal matters, failure to communicate with clients, and failure to properly terminate the representation), the board found respondent acted negligently and that his actions, in some cases, caused harm or potential harm to his clients. The board concurred in the aggravating and mitigating factors cited by the hearing committee.

Considering the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence, the board concluded the baseline sanction for respondent’s misconduct is a one-year suspension from the practice of law. In this case, however, the board felt an upward deviation was warranted in light of the fact that five clients were harmed by respondent’s knowing or negligent misconduct, and considering the aggravating factors, particularly respondent’s prior disciplinary record. The board agreed with the hearing committee that an eighteen-month suspension, followed by probation, is appropriate, and that deferral of a portion of the suspension is justified considering the mitigating factors and the protections provided by the imposition of a probationary period. Accordingly, the board recommended that respondent be suspended from the practice of law for eighteen months, with all but six months deferred, followed by an eighteen-month period of supervised probation, subject to the conditions |inrecommended by the hearing committee. The board also recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

One member of the disciplinary board agreed that an eighteen-month suspension is appropriate in this case, but dissented from the deferral of any portion of the suspension.

Neither respondent nor the ODC filed an objection to the recommendation of the majority of the disciplinary board. However, pursuant to Supreme Court Rule XIX, § 11(G)(1)(a), this court ordered the parties to submit written briefs within twenty days, addressing the appropriateness of the proposed sanction. Both parties timely filed briefs in response to this order.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on our independent review, we conclude the findings of the hearing committee and the disciplinary board are supported by the record. It is evident that respondent failed to use reasonable diligence on behalf of his clients and failed to |1¶ communicate with them, failed to return unearned fees or to provide accountings, failed to properly terminate the representation of his clients, and failed to cooperate with the ODC.

Having found professional violations, we now turn to a determination of the appropriate sanction for this misconduct. In determining an appropriate sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In In re: Trichel, 00-1304 (La.8/31/00), 767 So.2d 694, we recognized that the baseline sanction for neglect of a client matter, failure to communicate, and failure to properly terminate the representation of one client was a one-year suspension from the practice of law. However, we found the aggravating factors in the case, particularly the respondent’s prior discipline for similar misconduct, justified raising the sanction to an eighteen-month suspension.

The instant matter involves multiple counts of neglect of legal matters and failure to communicate involving several clients, as well as charges of failure to cooperate and the failure of respondent to properly terminate the representation of his clients. Consequently, the baseline sanction in this case is greater than the one-year suspension identified in Trichel. Although some mitigating factors exist, the hearing committee properly recognized that they are heavily outweighed by the aggravating factors present. Most disturbing among the aggravating factors is respondent’s prior disciplinary record of four admonitions between 1996 and 1998 for misconduct | ^similar to that at issue in the instant case. Each of these admonitions presented respondent with an opportunity to correct his deficiencies, but it is obvious that he did not avail himself of the chances he was given. Respondent now represents to this court that he has taken steps to improve the management of his office, and asks for a second chance. While we commend respondent for his efforts, there is a limit to this court’s patience. We will not tolerate a pattern of conduct which places an attorney’s clients at risk. Quite simply, nothing less than a fairly lengthy suspension would be responsive to the misconduct in this case.

Accordingly, we will suspend respondent from the practice of law for a period of eighteen months.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record and the additional briefing of the parties, it is ordered that Joseph R. Casanova be suspended from the practice of law in Louisiana for a period of eighteen months. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CALOGERO, C.J., and KIMBALL, J., dissents and would approve the recommendation of the disciplinary board.

      . The disciplinary board concurred in the dismissal of these charges, as well as the committee’s recommendation to dismiss the other charges in which the complainant did not appear to testify in person at the formal hearing. The ODC did not file an objection in this court to the dismissal. Our review of the record indicates the committee's dismissal was appropriate, as there is no clear and convincing evidence of a professional violation by respondent with respect to these charges. Accordingly, the merits of these allegations of misconduct will not be discussed further.

      . Respondent released Ms. Marquet's case file to her new attorney in May 1999, one month after the formal charges were filed.

      . Respondent has been admonished on four occasions for misconduct substantially similar to that at issue here: 96-ADB-076 (failure to cooperate with the ODC in its investigation); 97-ADB-008 (failure to refund unearned fees and failure to release the client’s file upon termination of the representation); 97-ADB-076 (neglect of a legal matter, failure to communicate with a client, and failure to cooperate with the ODC); 98-ADB-047 (failure to cooperate with the ODC).

      . Respondent and his wife, who served as his office manager and paralegal, were in the midst of a contentious divorce during the period of time the misconduct at issue occurred.

      . Other aggravating factors are present: pattern of misconduct, multiple offenses, obstruction of the disciplinary process, and substantial experience in the practice of law.


text:
    STATE of Louisiana v. Frank W. KANG
    No. 2002-K-2812.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, Nos. 00-1409; to the Court of Appeal, Fifth Circuit, No. 01-KA-1262.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “ It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court,.to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.

Granted.


text:
    STATE of Louisiana v. Deborah FOSTER. (In re Grand Jury Investigation).
    No. 2002-OK-2918.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, Nos. 0; to the Court of Appeal, First Circuit, No.2002 CW 1216.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “ It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.

Granted.


text:
    KEVIN ASSOCIATES, L.L.C. (Successor in Interest Through Merger to Yendis Properties, Inc.) v. Brett CRAWFORD, Secretary of the Department of Revenue, State of Louisiana
    No. 2003-C-0211.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Crawford, Brett Secretary of the Dept, of Rev.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, Nos. 460, 981; to the Court of Appeal, First Circuit, No.2001 CA 2662.

And, whereas, the Court has this date, pursuant to Article 5, Section 6, of the Constitution of Louisiana, made and issued the following order, to wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.

Granted.


text:
    Alvin LANGSFORD, Jr., Individually and on Behalf of His Minor Son Alex Michael v. William J. FLATTMAN, III and Southern United Fire Insurance Company
    No. 2003-C-0189.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Southern United Fire Ins. Co.;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. D, Nos. 90-825; to the Court of Appeal, Fourth Circuit, NO.2002-CA-0865.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “ It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.

Granted.

ORDER

The court hereby informs the parties that it has granted certiorari in this matter. Because the issues are not complex, the court has selected this case for possible resolution by summary disposition and per curiam opinion.

Pursuant to Supreme Court Rule VIII, § 5, it is ordered that oral argument be limited to fifteen minutes for each side. During argument, the court may, at its discretion, grant the parties additional time.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana