text:
    CODE OF JUDICIAL CONDUCT. Amendments to the Code of Judicial Conduct and Rules Regulating The Florida Bar Re Pro Bono Activities by Judges and Judicial Staff.
    Nos. SC02-147, SC02-1034.
    Supreme Court of Florida.
    Feb. 20, 2003.
    The Honorable Joseph P. Farina, Chief Judge, Eleventh Judicial Circuit, Former Chair, Florida Conference of Circuit Court Judges, Miami, FL; the Honorable Belvin Perry, Jr., Conference Chair, Florida Conference of Circuit Court Judges, Orlando, FL; the Honorable Beth Bloom, President, Florida Conference of County Court Judges, Miami, FL; the Honorable Charles J. Kahn, Jr., First District Court of Appeal, Tallahassee, FL, and Ervin Gonzalez of Colson, Hicks & Eidson, Coral Gables, FL, on behalf of the Florida Judicial Ethics Advisory Committee; the Honorable Jacqueline R. Griffin, Chair, Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges, Daytona Beach, FL; the Honorable Chris W. Altenbernd, Second District Court of Appeal, Tampa, FL, on behalf of the Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges; the Honorable Jeffrey D. Swartz, County Court Judge, Dade County, Miami Beach, FL; Tod Aronovitz, President, The Florida Bar, Miami, FL, and Miles A. McGrane, III, President-elect, The Florida Bar, Coral Gables, FL; the Honorable David A. Demers, Chief Judge, Sixth Judicial Circuit, and B. Elaine New, Court Counsel, Sixth Judicial Circuit, St. Petersburg, FL; The Honorable William A. Van Nortwick, Jr., Chair, Task Force on Pro Bono Activities by Judges and Judicial Staff, Tallahassee, FL; the Honorable Jeffrey J. Colbath, County Court Judge, Palm Beach County, West Palm Beach, FL; and the Honorable Karl B. Grube, County Court Judge, Pinellas County, St. Petersburg, FL, Responding with comments in No. SC02-147.
    The Honorable William A. Van Nort-wick, Jr., Chair, Task Force on Pro Bono Activities by Judges and Judicial Staff, Tallahassee, FL; and Natasha W. Per-maul, Chair, The Florida Bar Standing Committee on Pro Bono Legal Services, Orlando, FL, for Petitioner in No. SC02-1034.
    The Honorable Joseph P. Farina, Chief Judge, Eleventh Judicial Circuit, Former Chair, Florida Conference of Circuit Court Judges, Miami, FL; the Honorable Belvin Perry, Jr., Conference Chair, Florida Conference of Circuit Court Judges, Orlando, FL; the Honorable Beth Bloom, President, Florida Conference of County Court Judges, Miami, FL; the Honorable Charles J. Kahn, Jr., First District Court of Appeal, Tallahassee, FL, and Ervin Gonzalez of Colson, Hicks & Eidson, Coral Gables, FL, on behalf of the Florida Judicial Ethics Advisory Committee; the Honorable Jacqueline R. Griffin, Chair, Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges, Daytona Beach, FL; the Honorable Chris W. Altenbernd, Second District Court of Appeal, Tampa, FL, on behalf of the Ad hoc Committee on Judicial Pro Bono for the Conference of District Court of Appeal Judges; the Honorable Jeffrey D. Swartz, County Court Judge, Dade County, Miami Beach, FL; Tod Aronovitz, President, The Florida Bar, Miami, FL, and Miles A. McGrane, III, President-elect, The Florida Bar, Coral Gables, FL; the Honorable David A. Demers, Chief Judge, Sixth Judicial Circuit, and B. Elaine New, Court Counsel, Sixth Judicial Circuit, St. Petersburg, FL; the Honorable James M. Barton, III, Circuit Court Judge of the Thirteenth Judicial Circuit, Hillsborough County, Tampa, FL; John R. Hamilton of Foley & Lardner, Orlando, FL, on behalf of the Legal Aid Society of the Orange County Bar Association, Inc.; Kelly Rauch, President, Florida Pro Bono Coordinators Association, St. Petersburg, FL; Wendy S. Loquasto, career attorney to Judge Richard W. Ervin, III, Judge of the District Court of Appeal, First District, Tallahassee, FL; and attorney Martin D. Kahn, Miami, FL, Responding with comments in No. SC02-1034.
   PER CURIAM.

In Case No. SC02-147, we have before us the petition of the Judicial Ethics Advisory Committee (JEAC) proposing amendments to Canons 4 and 5 of the Code of Judicial Conduct (Code). In Case No. SC02-1034, we have before us the report of the Task Force on Pro Bono Activities by Judges and Judicial Staff (Task Force) and The Florida Bar Standing Committee on Pro Bono Legal Services (Standing Committee), proposing amendments to Canon 4 of the Code and to Rule Regulating the Florida Bar 4-6.1, Pro Bono Public Service. We have jurisdiction. See art. V, § 15, Fla. Const.

Although the petition of the JEAC is broader in scope, because both the petition and the report of the Task Force and the Standing Committee relate to the provision of pro bono services by judges and judicial staff, we consolidated the two matters for oral argument and now consolidate the cases for purposes of this opinion. After considering the report, the petition, and the comments filed in response to each, and after hearing oral argument, we adopt the amendments proposed by the JEAC and decline to adopt the amendments proposed by the Task Force and the Standing Committee.

BACKGROUND

In 1993, this Court adopted a comprehensive pro bono legal service plan for Florida attorneys. See Amendments to Rules Regulating the Florida Bar—1-3.1(a) & Rules of Judicial Administration—2.065 (Legal Aid), 630 So.2d 501 (Fla.1993) (hereinafter Amendments). At that time, this Court noted that it has a constitutional responsibility to ensure access to the justice system. However, the Court expressly found that “no authority exists for this Court to address, through the Rules Regulating The Florida Bar, uncompensated public service activities not directly related to services for the courts and the legal needs of the poor.” Id. at 503. The Court narrowly defined the term “legal services to the poor” as “pro bono legal services to the poor or ... to the extent possible, other pro bono service activities that directly relate to the legal needs of the poor.” Id.

In considering whether the aspirational goal of the provision regarding pro bono legal services to the poor should apply to judges and their staff attorneys, this Court recognized that judicial officers and their staffs are prohibited from practicing law. Id. The Court explained:

These prohibitions are designed partially to prevent judges and their staffs from taking time away from their judicial duties. More importantly, however, the prohibitions are to prevent them from placing themselves in positions where their actions could directly or indirectly be influenced by matters that could come before them or could provide the appearance that certain parties might be favored over others. As a result, members of the judiciary and their law clerks are unable to participate in providing pro bono legal services to the poor absent a broadening of the definition of those services to such an extent that the services would no longer be limited to legal services. As discussed above under the definition of legal services, we believe that a narrow definition of pro bono services is necessary to ensure that the purposes behind the implementation of these rules are in accordance with our authority.

Id. at 503-04. Thus, the Court deferred members of the judiciary and their staffs from the pro bono requirements of rule 4-6.1. See id. at 504. Nevertheless, the Court went on to note:

[J]udges and their staffs may still teach or engage in activities that concern non-adversarial aspects of the law. Canon 4. Although those activities would not be governed by these rules, we strongly encourage the participation of the judiciary in those activities and request the judicial conferences to consider appropriate means to provide support and allow participation of judges and law clerks in pro bono activities.

Id. at 504.

These consolidated cases consist of the recommendations of two separate groups considering the same issue that was addressed by this Court in Amendments, that is, the participation of judges and judicial staff attorneys in pro bono activities. We will discuss the origins of both the JEAC and the Task Force in turn, and address the recommendations filed by each group.

PETITION OF THE JUDICIAL ETHICS ADVISORY COMMITTEE

The Judicial Ethics Advisory Committee, formerly called the Committee on Standards of Conduct Governing Judges, was created in 1976. See Petition of Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976). The stated purpose of the JEAC was, and is, to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and nonjudicial conduct. See Petition of Committee on Standards of Conduct for Judges, 327 So.2d at 5. In 1979, the Court held that the JEAC also could recommend changes to the Code of Judicial Conduct. See Petition of Committee on Standards of Conduct for Judges, 367 So.2d 625, 626 (Fla.1979).

On January 22, 2002, the JEAC filed a petition requesting that the Court adopt proposed revisions to Canons 4 and 5 of the Code of Judicial Conduct. The JEAC proposes amendments to the heading, the substance, and the comment to Canon 4, “A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice.” In proposing these amendments, the JEAC states that it recognizes that it is important for members of the judiciary to participate in activities that improve the law, the legal system, and the administration of justice. However, the JEAC states that Canon 4 is deficient because it fails to encourage judicial officers to improve upon the system that they serve. Further, the JEAC states that some judges are unclear as to the activities in which they may ethically engage. As currently written, the heading to Canon 4 states only that judges are permitted to engage in activities that improve the law, the legal system, and the administration of justice. The JEAC proposes amending the heading to actively encourage members of the judiciary to engage in such activities.

The JEAC recommends amending Canon 4B to expressly state that judges are encouraged (rather than permitted) to “speak, write, lecture, teach, and engage in other quasi-judicial activities concerning the law, the legal system and the administration of justice.” The JEAC further proposes adding to this list of subjects “the role of the judiciary as an independent branch of the government.”

The JEAC proposes amending the commentary to Canon 4B to encourage judges to engage in the aforementioned activities and to provide specific examples of legal areas in which a judge may contribute. Further, the JEAC recommends that the commentary to Canon 4B be amended to provide that it is appropriate for judges to support pro bono legal services, subject to the requirements of the Code, because these services relate to the improvement of the administration of justice. The JEAC’s petition emphasizes that not all activities in support of pro bono legal services are ethically permissible under the Code.

The JEAC proposes amending Canon 4D to provide that judges are encouraged (rather than just permitted) to serve as members, officers, directors, trustees, or nonlegal advisors of organizations or governmental agencies devoted to the improvement of the law, the legal system, or the administration of justice. Further, the JEAC proposes amending the canon to include service to organizations or governmental agencies devoted to the judicial branch.

The JEAC next proposes various amendments to the substance and commentary of Canon 5, “A Judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict with Judicial Duties.” In proposing these amendments, the JEAC states that an effective judge is not only well versed in the law, but also stays in touch with his or her community on nonlegal matters. As such, the JEAC proposes amending Canon 5B to provide that judges are encouraged (rather than just permitted) to engage in extrajudicial activities concerning nonlegal subjects, subject to the provisions of the Code. The JEAC proposes a similar addition to the commentary to Canon 5A, encouraging judicial involvement in community-related nonlegal activities.

Canon 5C(2) currently authorizes judges to accept appointments to governmental committees or commissions or other governmental positions that are concerned with issues of fact or policy on matters pertaining to the improvement of the law, the legal system, or the administration of justice. The JEAC proposes adding “the judicial branch” as a fourth option. Thus, under amended Canon 5C(2), a judge would be authorized to accept an appointment to a committee or commission or other government position that is concerned with issues of fact or policy on matters pertaining to the improvement of the judicial branch.

The JEAC’s proposed changes were published in the March 15, 2002, edition of The Florida Bar News. Numerous comments were received.

REPORT OF THE TASK FORCE AND THE STANDING COMMITTEE

In October 2000, by Administrative Order entered by then Chief Justice Charles T. Wells, this Court created the Task Force on Pro Bono Activities by Judges and Judicial Staff to work with The Florida Bar Standing Committee on Pro Bono Legal Services. See In re Pro Bono Activities by Judges & Judicial Staff, Fla. Amended Admin. Order No. AOSC00-7 (Oct. 25, 2000) (on file with Clerk, Fla. Sup.Ct.). The Court charged the Task Force and the Standing Committee with proposing a plan to facilitate participation in pro bono activities by the judiciary and judicial staff. The Court specifically directed the Task Force and the Standing Committee to:

• study how a pro bono commitment, or similar undertaking, could be carried out by judges and judicial staff;
• collect information on nontraditional pro bono activities by judges and judicial staff in Florida and other states; and
• consider the need for rules relating to pro bono service by judges and judicial staff.

The Task Force and the Standing Committee submitted their report on May 2, 2002, recommending amendments to Rule Regulating the Florida Bar 4-6.1 and Canon 4B of the Code of Judicial Conduct. The proposals were approved by the joint group by a vote of 12-0, with one abstention.

In making its recommendations, the Task Force and the Standing Committee recognize that public service is the very essence of the work of a judge. As to whether judges should have an additional aspirational duty to perform pro bono services, the Task Force and the Standing Committee state that numerous attorneys whose employment is based in public service, such as legal aid attorneys, are not exempted from the aspirational goal and pro bono reporting requirement. Thus, the Task Force and the Standing Committee propose that judges and their staffs no longer be deferred from the pro bono reporting requirement. However, because rule 4-6.1 governs “pro bono legal services” which often involve the practice of law, the Task Force and the Standing Committee propose creating a separate aspirational service obligation under Canons 4B and 4D of the Code.

The Task Force and the Standing Committee propose to amend Rule Regulating the Florida Bar 4-6.1, governing pro bono public service, in three ways. First, the Task Force and the Standing Committee propose amending subdivision (a) of the rule to state that the professional responsibility to render pro bono legal services cannot apply to members of the judiciary and members of the Bar employed by the judiciary because such persons are prohibited from practicing law by the Florida Constitution or other provisions of the law, and that the aspirational responsibility to provide pro bono service is set forth in Canons 4B and 4D of the Code of Judicial Conduct. Second, the Task Force and the Standing Committee propose amending subdivision (d) of the rule to add an annual reporting requirement for judges and their staff attorneys of hours of pro bono service provided or contributions made to a legal aid organization, thereby eliminating the current deferment of the reporting requirement for those individuals. Third, the Task Force and the Standing Committee propose amending the comment to the rule to reiterate that members of the judiciary and members of the Bar employed by the judiciary may fulfil their pro bono obligation pursuant to Canons 4B and 4D of the Code of Judicial Conduct. In addition, the Task Force and the Standing Committee propose adding a statement to the comment providing that “the primary purpose of pro bono service is overall a public one and is consistent with the constitutional obligation of the judiciary to ensure access to the justice system.”

The Task Force and the Standing Committee propose amending Canon 4 of the Code of Judicial Conduct in two areas. First, the Task Force and the Standing Committee propose amending Canon 4B to encourage judges and judicial staff attorneys to engage in pro bono service activities that will facilitate the participation of attorneys in pro bono legal activities. Judges and judicial staff attorneys are further encouraged to perform pro bono service activities that relate to improving access to the justice system for the poor and working poor, but do not involve the practice of law. Second, the Task Force and the Standing Committee propose amending the commentary to Canon 4B by adding two paragraphs. The first paragraph identifies what judges and judicial staff attorneys may not do when participating in pro bono service activities, and reiterates that judges and judicial staff attorneys may satisfy the aspirational goal of performing pro bono service by providing at least twenty hours of pro bono service annually or by the payment of at least $350 to a legal aid organization. The second paragraph details pro bono activities that are appropriate for judges and judicial staff attorneys.

The Task Force and the Standing Committee’s proposals were published in the June 1, 2002, edition of The Florida Bar News. Numerous comments were received.

ANALYSIS

A large number of judges and judicial staff statewide already engage in a wide variety of pro bono activities. The Task Force and the Standing Committee’s report indicates that judges are engaged in such activities as serving as chair of a circuit pro bono committee, participating in Teen Court, participating in legal aid training, and assisting in annual pro bono awards ceremonies. Throughout the year, judges routinely work with schools to help teach about the role of the judicial branch in our democracy and speak in communities throughout the State about matters affecting the administration of justice. Further, some judicial staff attorneys currently perform client intake for pro bono programs and help victims of domestic violence fill out legal forms. We commend all judges and their staffs who provide pro bono service to the community and who engage in extrajudicial activities. Engaging in pro bono service educates the community about the legal system, the judicial branch, and the administration of justice. Engaging in nonjudicial activities demonstrates to the public that members of the judiciary are also integral members of the community who strive toward the common goal of improving society as a whole.

Although judges and judicial staff currently engage in pro bono activities, the Task Force and the Standing Committee argue that an aspirational goal and mandatory reporting requirement will further increase judicial participation in pro bono activities. However, the Task Force and the Standing Committee acknowledge that to facilitate participation in such a program, it would be necessary to “define broadly the types of service that would constitute pro bono service for judges and judicial staff and [to] provid[e] specific examples of such service.”

In Amendments, the Court declined to broaden the definition of “legal services to the poor” so that judges and judicial staff could participate in the program because the Court found that a narrow definition was necessary to “ensure that the purposes behind the implementation of these rules are in accordance with our authority.” 630 So.2d at 504. We are not certain that broadening the definition of pro bono services for judges and judicial staff will in fact serve the Task Force and the Standing Committee’s stated goal of improving access to justice for all citizens of this State. Further, we acknowledge that virtually all of the comments filed opposed the Task Force and the Standing Committee’s proposed amendments to the Code and favored the JEAC’s proposed amendments.

The amendments proposed by the JEAC are consistent with this Court’s intent to encourage judges and their staff attorneys to engage in ethically permissible pro bono services and extrajudicial activities. Where judges have expressed concern over what types of activities are ethically permissible, the JEAC’s proposed amendments provide examples of permissible conduct. Further, because the JEAC’s proposals do not make the aspirational pro bono legal services goal and the mandatory reporting requirement applicable to judges and judicial staff, these proposals do not run afoul of the narrow definition of “legal services to the poor” as set forth in Amendments. Therefore, the true intent of the pro bono aspirational goal and reporting requirement will be preserved. We conclude that the JEAC’s proposed amendments to the Code of Judicial Conduct best serve the dual goals of encouraging members of the judiciary and their staffs to engage in pro bono services and extrajudicial activities, while ensuring that the availability of pro bono legal representation for the poor is not diluted or compromised in any way. In light of the foregoing, we adopt the amendments proposed by the JEAC but decline to adopt the amendments proposed by the Task Force and the Standing Committee. However, we amend the proposed commentary to Canon 4B as discussed below.

The JEAC proposes that the commentary to Canon 4B be amended to provide specific examples of legal areas in which a judge may contribute and to encourage judges to support pro bono legal services. The commentary as amended by the JEAC states:

This canon is clarified in order to encourage judges to engage in activities to improve the law, the legal system, and the administration of justice. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to the revision of substantive and procedural law, the and improvement of civil, criminal, domestic relations, probate and juvenile justice, and the role of the judiciary as an independent branch of government. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Support of pro bono legal services by members of the bench is an activity that relates to improvement of the administration of justice. Accordingly, a judge may engage in activities intended to encourage attorneys to perform pro bono services, including, but not limited to: participating in events to recognize attorneys who do pro bono work, establishing general procedural or scheduling accommodations for pro bono attorneys as feasible, and acting in an advisory capacity to pro bono programs. Judges may are encouraged to participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may-express, which may include the expression of opposition to the persecution of lawyers and judges in other countries because of their.professional activities.

(Changes indicated by underlined and stricken language.) The Conference of County Court Judges of Florida commented that this proposal overlooks motor vehicle law, an important area of justice for which county court judges are responsible. The Conference requests that this area of the law be added to the list of examples. Accordingly, we have amended the proposal submitted by the JEAC to include “motor vehicle law.” We have further amended this section of the commentary to include family law, domestic violence, juvenile delinquency and juvenile dependency as other examples of legal areas in which a judge may contribute. The amended commentary now states:

This canon is clarified in order to encourage judges to engage in activities to improve the law, the legal system, and the administration of justice. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to, the improvement of the role of the judiciary as an independent branch of government, the revision of substantive and procedural law and, the improvement of criminal and juvenile justice, and the improvement of justice in the areas of civil, criminal, family, domestic violence, juvenile delinquency, juvenile dependency, probate and motor vehicle law. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Support of pro bono legal services by members of the bench is an activity that relates to improvement of the administration of justice. Accordingly, a judge may engage in activities intended to encourage attorneys to perform pro bono services, including, but not limited to: participating in events to recognize attorneys who do pro bono work, establishing general procedural or scheduling accommodations for pro bono attorneys as feasible, and acting in an advisory capacity to pro bono programs. Judges may are encouraged to participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express, which may include the expression of opposition to the persecution of lawyers and judges in other countries because of their professional activities.

(Changes indicated by underlined and stricken language.)

The Court wishes to express its sincerest gratitude to Judge William A. Van Nortwick, Chair of the Task Force, and to the members of the Task Force, the Standing Committee and the JEAC for their diligent and dedicated efforts in studying the issue of judges and judicial staff participation in pro bono activities. We anticipate that the Standing Committee will continue to provide this Court with meaningful information in this area. Further, we thank all individuals who filed comments with this Court, especially those who participated in oral argument. Accordingly, we amend the Code of Judicial Conduct as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

APPENDIX

Canon 4. A Judge May is Encouraged to Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice

A. A judge shall conduct all of the judge’s quasi-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.

B. A judge may is encouraged to speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice, and the role of the judiciary as an independent branch within our system of government, subject to the requirements of this Code.

C. A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests.

D. A judge may is encouraged to serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, subject to the following limitations and the other requirements of this Code.

(1) A judge shall not serve as an officer, director, trustee or non-legal advis- or if it is likely that the organization
(a) will be engaged in proceedings that would ordinarily come before the judge, or
(b) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.
(2) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(a) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;
(b) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice;
(c) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4D(2)(a), if the membership solicitation is essentially a fund-raising mechanism;
(d) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

Commentary

Canon 4A. A judge is encouraged to participate in activities designed to improve the law, the legal system, and the administration of justice. In doing so, however, it must be understood that expressions of bias or prejudice by a judge, even outside the judge’s judicial activities, may cast reasonable doubt on the judge’s capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status. See Section 2C and accompanying Commentary.

Canon 4B. This canon is clarified in order to encourage .judges to engage in activities to improve the law, the legal system, and the administration of .justice. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to, the improvement of the role of the judiciary as an independent branch of government, the revision of substantive and procedural law and, the improvement of criminal and juvenile justice, and the improvement of justice in the areas of civil, criminal, family, domestic violence, juvenile delinquency, juvenile dependency, probate and motor vehicle law. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Support of pro bono legal services by members of the bench is an activity that relates to improvement of the administration of justice. Accordingly, a judge may engage in activities intended to encourage attorneys to perform pro bono services, including, but not limited to: participating in events to recognize attorneys who do pro bono work, establishing general procedural or scheduling accommodations for pro bono attorneys as feasible, and acting in an advisory capacity to pro bono programs. Judges may are encouraged to participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express, which may include the expression of opposition to the persecution of lawyers and judges in other countries beeause-of-their professional activities.

The phrase “subject to the requirements of this Code” is included to remind judges that the use of permissive language in various Sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.

Canon 4C. See Section 2B regarding the obligation to avoid improper influence.

Canon 4D(1). The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.

Canon 4D(2). A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to the improvement of the law, the legal system or the administration of justice as long as the solicitation cannot reasonably be perceived as coercive and is not essentially a fund-raising mechanism. Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone except in the following cases: 1) a judge may solicit for funds or memberships other judges over whom the judge does not exercise supervisory or appellate authority, 2) a judge may solicit other persons for membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves and 3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge’s signature.

Use of an organization letterhead for fund-raising or membership solicitation does not violate Section 4D(2) provided the letterhead lists only the judge’s name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge’s judicial designation. In addition, a judge must also make reasonable efforts to ensure that the judge’s staff, court officials and others subject to the judge’s direction and control do not solicit funds on the judge’s behalf for any purpose, charitable or otherwise.

A judge must not be a speaker or guest of honor at an organization’s fund-raising event, but mere attendance at such an event is permissible if otherwise consistent with this Code.

Canon 5. A Judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict with Judicial Duties

A. Extrajudicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.

B. Avocational Activities. A judge may is encouraged to speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code.

C. Governmental, Civic or Charitable Activities.

(1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests.
(2) A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, the judicial branch, or the administration of justice. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities.
(3) A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.
(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization
(i) will be engaged in proceedings that would ordinarily come before the judge, or
(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.
(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;
(ii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 5C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism;
(in) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

D. Financial Activities.

(1) A judge shall not engage in financial and business dealings that
(a) may reasonably be perceived to exploit the judge’s judicial position, or
(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.
(2) A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge’s family, including real estate, and engage in other remunerative activity.
(3) A judge shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in:
(a) a business closely held by the judge or members of the judge’s family, or
(b) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family.
(4) A judge shall manage the judge’s investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.
(5) A judge shall not accept, and shall urge members of the judge’s family residing in the judge’s household not to accept, a gift, bequest, favor or loan from anyone except for:
(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge’s spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice;
(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge’s household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;
(c) ordinary social hospitality;
(d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;
(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3E;
(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;
(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or
(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value, or the aggregate value in a calendar year of such gifts, bequests, favors, or loans from a single source, exceeds $100.00, the judge reports it in the same manner as the judge reports gifts under Section 6B(2).

E. Fiduciary Activities.

(1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties.
(2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.
(3)The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.

F. Service as Arbitrator or Mediator.

A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law or Court rule. A judge may, however, take the necessary educational and training courses required to be a qualified and certified arbitrator or mediator, and may fulfill the requirements of observing and conducting actual arbitration or mediation proceedings as part of the certification process, provided such program does not, in any way, interfere with the performance of the judge’s judicial duties.

G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family.

Commentary

Canon 5A. Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. For that reason, judges are encouraged to participate in extrajudicial community activities.

Expressions of bias or prejudice by a judge, even outside the judge’s judicial activities, may cast reasonable doubt on the judge’s capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status. See Section 2C and accompanying Commentary.

Canon 5B. In this and other Sections of Canon 5, the phrase “subject to the requirements of this Code” is used, notably in connection with a judge’s governmental, civic or charitable activities. This phrase is included to remind judges that the use of permissive language in various Sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.

Canon 5C(1). See Section 2B regarding the obligation to avoid improper influence.

Canon 5C(2). Section 5C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system or administration of justice as authorized by Section 4D. The appropriateness of accepting extrajudicial assignments' must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extrajudicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.

Section 5C(2) does not govern a judge’s service in a nongovernmental position. See Section 5C(3) permitting service by a judge with educational, religious, charitable, fraternal, sororal or civic organizations not conducted for profit. For example, service on the board of a public educational institution, unless it were a law school, would be prohibited under Section 5C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Section 5C(3).

Canon 5C(3). Section 5C(3) does not apply to a judge’s service in a governmental position unconnected with the improvement of the law, the legal system or the administration of justice; see Section 5C(2).

See Commentary to Section 5B regarding use of the phrase “subject to the following limitations and the other requirements of this Code.” As an example of the meaning of the phrase, a judge permitted by Section 5C(3) to serve on the board of a fraternal institution may be prohibited from such service by Sections 2C or 5A if the institution practices invidious discrimination or if service on the board otherwise casts reasonable doubt on the judge’s capacity to act impartially as a judge.

Service by a judge on behalf of a civic or charitable organization may be governed by other provisions of Canon 5 in addition to Section 5C. For example, a judge is prohibited by Section 5G prohibits a judge from serving as a legal advisor to a civic or charitable organization. .

Canon 5C(3)(a). The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to regularly reexamine the activities of each organization with which the judge is affiliated in order to determine if it is proper for the judge to continue the affiliation. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past.

Canon 5C(3)(b). A judge may solicit membership or endorse or encourage membership efforts for a nonprofit educational, religious, charitable, fraternal, so-roral or civic organization as long as the solicitation cannot reasonably be perceived as coercive and is not essentially a fund-raising mechanism. Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in -writing or by telephone except in the following cases: 1) a judge may solicit for funds or memberships other judges over whom the judge does not exercise supervisory or appellate authority, 2) a judge may solicit other persons for membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves and 3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge’s signature.

Use of an organization letterhead for fund-raising or membership solicitation does not violate Section 5C(3)(b) provided the letterhead lists only the judge’s name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge’s judicial designation. In addition, a judge must also make reasonable efforts to ensure that the judge’s staff, court officials and others subject to the judge’s direction and control do not solicit funds on the judge’s behalf for any purpose, charitable or otherwise.

A judge must not be a speaker or guest of honor at an organization’s fund-raising event, but mere attendance at such an event is permissible if otherwise consistent with this Code.

Canon 5D(1). When a judge acquires in a judicial capacity information, such as material contained in filings with the court, that is not yet generally known, the judge must not use the information for private gain. See Section 2B; see also Section 3B(11).

A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges on the judge’s court. In addition, a judge should discourage members of the judge’s family from engaging in dealings that would reasonably appear to exploit the judge’s judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification. With respect to affiliation of relatives of the judge with law firms appearing before the judge, see Commentary to Section 3E(1) relating to disqualification.

Participation by a judge in financial and business dealings is subject to the general prohibitions in Section 5A against activities that tend to reflect adversely on impartiality, demean the judicial office, or interfere with the proper performance of judicial duties. Such participation is also subject to the general prohibition in Canon 2 against activities involving impropriety or the appearance of impropriety and the prohibition in Section 2B against the misuse of the prestige of judicial office. In addition, a judge must maintain high standards of conduct in all of the judge’s activities, as set forth in Canon 1. See Commentary for Section 5B regarding use of the phrase “subject to the requirements of this Code.”

Canon 5D(2). This Section provides that, subject to the requirements of this Code, a judge may hold and manage investments owned solely by the judge, investments owned solely by a member or members of the judge’s family, and investments owned jointly by the judge and members of the judge’s family.

Canon 5D(3). Subject to the requirements of this Code, a judge may partid-pate in a business that is closely held either by the judge alone, by members of the judge’s family, or by the judge and members of the judge’s family.

Although participation by a judge in a closely-held family business might otherwise be permitted by Section 5D(3), a judge may be prohibited from participation by other provisions of this Code when, for example, the business entity frequently appears before the judge’s court or the participation requires significant time away from judicial duties. Similarly, a judge must avoid participating in a closely-held family business if the judge’s participation would involve misuse of the prestige of judicial office.

Canon 5D(5). Section 5D(5) does not apply to contributions to a judge’s campaign for judicial office, a matter governed by Canon 7.

Because a gift, bequest, favor or loan to a member of the judge’s family residing in the judge’s household might be viewed as intended to influence the judge, a judge must inform those family members of the relevant ethical constraints upon the judge in this regard and discourage those family members from violating them. A judge cannot, however, reasonably be expected to know or control all of the financial or business activities of all family members residing in the judge’s household.

Canon 5D(5)(a). Acceptance of an invitation to a law-related function is governed by Section 5D(5)(a); acceptance of an invitation paid for by an individual lawyer or group of lawyers is governed by Section 5D(5)(h).

A judge may accept a public testimonial or a gift incident thereto only if the donor organization is not an organization whose members comprise or frequently represent the same side in litigation, and the testimonial and gift are otherwise in compliance with other provisions of this Code. See Sections 5A(1) and 2B.

Canon 5D(5)(d). A gift to a judge, or to a member of the judge’s family living in the judge’s household, that is excessive in value raises questions about the judge’s impartiality and the integrity of the judicial office and might require disqualification of the judge where disqualification would not otherwise be required. See, however, Section 5D(5)(e).

Canon 5D(5)(h). Section 5D(5)(h) prohibits judges from accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the clients’ interests have come or are likely to come before the judge.

Canon 5E(3). The restrictions imposed by this Canon may conflict with the judge’s obligation as a fiduciary. For example, a judge should resign as trustee if detriment to the trust would result from divestiture of holdings the retention of which would place the judge in violation of Section 5D(4).

Canon 5F. Section 5F does not prohibit a judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties. An active judge may take the necessary educational and training programs to be certified or qualified as a mediator or arbitrator, but this shall not be a part of the judge’s judicial duties. While such a course will allow a judge to have a better understanding of the arbitration and mediation process, the certification and qualification of a judge as a mediator or arbitrator is primarily for the judge’s personal benefit. While actually participating in the mediation and arbitration training activities, care must be taken in the selection of both cases and locations so as to guarantee that there is no interference or conflict between the training and the judge’s judicial responsibilities. Indeed, the training should be conducted in such a manner as to avoid the involvement of persons likely to appear before the judge in legal proceedings.

Canon 5G. This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge’s family. See Section 2B.

The Code allows a judge to give legal advice to and draft legal documents for members of the judge’s family, so long as the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judge’s family in a legal matter.

      . The committee's name was changed to the Judicial Ethics Advisory Committee in 1997. See Petition of Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla.1997).

      . Comments were filed by the Florida Conference of District Court of Appeal Judges; the Florida Conference of Circuit Court Judges; the Florida Conference of County Court Judges; Judge William A. Van Nortwick, Jr., Chair of the Task Force on Pro Bono Services by the Judiciary and Judicial Staff Attorneys; Judge David A. Demers, Chief Judge of the Sixth Judicial Circuit; Judge Karl B. Grube, County Court Judge, Pinellas County; and The Florida Bar.

      . Comments were filed by the Florida Conference of District Court of Appeal Judges; the Florida Conference of Circuit Court Judges; the Florida Conference of County Court Judges; the Judicial Ethics Advisory Committee; Judge William A. Van Nortwick, Jr., Chair of the Task Force on Pro Bono Services by the Judiciary and Judicial Staff Attorneys; Judge David A. Demers, Chief Judge of the Sixth Judicial Circuit; Judge James M. Barton, II, Circuit Court Judge of the Thirteenth Judicial Circuit, in and for Hillsborough County; The Florida Bar; the Legal Aid Society of the Orange County Bar Association, Inc.; the Florida Pro Bono Coordinators Association; Wendy Loquasto, career attorney to Judge Richard W. Ervin, III, Judge of the District Court of Appeal, First District; and attorney Martin D. Kahn.

      . Comments filed by Judge David A. Demers and Judge Karl B. Grube also suggested that "motor vehicle law" be added to the commentary to Canon 4B.


source: Caselaw Access Project

author: PER CURIAM. CANTERO, J., PARIENTE, J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Edward Thomas PARTLOW, Respondent.
    No. SC02-713.
    Supreme Court of Florida.
    Feb. 20, 2003.

      Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Kathleen Cooper Grilli, Hollywood, FL, for Respondent.
   PER CURIAM.

We review Partlow v. State, 813 So.2d 999 (Fla. 4th DCA 2002), which certified conflict with Nelson v. State, 780 So.2d 294 (Fla. 1st DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The issue is whether, after being sentenced for a sexual offense pursuant to a plea of guilty or nolo contendere, a defendant may withdraw his plea as involuntary because he was not informed of the sexual offender registration requirement. The Fourth District Court of Appeal held below that the defendant’s ignorance of this consequence rendered his plea involuntary, and therefore he must be allowed to withdraw his plea. 813 So.2d at 999-1000. For the reasons expressed below, we hold that the sexual offender registration requirement is a collateral consequence of the plea, and therefore failure to inform the defendant of that requirement before he entered the plea does not render his plea involuntary.

Partlow entered a “best interests” guilty plea to eight counts of the first-degree felony of sexual battery on a person within his familial or custodial authority (§ 794.011(8), Fla. Stat. (1997)) and one count of indecent assault (§ 800.04(1), Fla. Stat. (1997)). The court accepted the plea and sentenced Partlow as an habitual offender to concurrent terms of fifteen years in prison followed by ten years of sexual offender probation. About twenty days later, he filed a motion to withdraw his plea on the ground that it was involuntary because he was not properly advised of the consequences of entering a plea. At the hearing, Partlow testified that had he known he would have to register as a sex offender, see § 943.0435, Fla. Stat. (1997) (defining “sexual offender” and imposing sexual offender registration requirements), he would not have entered his plea. The trial court denied his motion. On appeal, the Fourth District reversed. Citing Florida Rule of Criminal Procedure 3.170(f), the court held that the trial court should have advised Partlow of the “known consequences” of his plea and directed the trial court to allow him to withdraw his plea. Partlow, 813 So.2d at 999-1000.

Florida Rule of Criminal Procedure 3.170 governs the circumstances under which a defendant may withdraw a plea. Subdivision (f) of that rule states that a “court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn.” Fla. R.Crim. P. 3.170(f) (emphasis added). Under this provision, a trial court plainly has broad discretion in determining motions to withdraw a plea. See Graham v. State, 779 So.2d 604, 605 (Fla. 2d DCA 2001); Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983). Here, however, Partlow sought to withdraw his plea after his sentence. Therefore, rule 3.170(f) does not apply.

Rule 3.170(0 applies to motions to withdraw filed after sentencing. In contrast to subdivision (f), this provision allows withdrawal of a plea only on the limited grounds listed in Florida Rule of Appellate Procedure 9.140(b). Such grounds include lack of subject matter jurisdiction, violation of the plea agreement, and involuntariness of the plea. Moreover, once sentence has been imposed, to withdraw a plea a defendant must demonstrate a manifest injustice requiring correction. See Lopez v. State, 536 So.2d 226, 229 (Fla.1988). Because Partlow filed his motion after sentencing, subdivision (l), not subdivision (f), of rule 3.170 applies. Therefore, to obtain permission to withdraw his plea, Partlow had to show that failure to inform him of the sexual offender registration requirement rendered his plea involuntary.

The Fourth District held that the sexual offender registration requirement is a “known consequence” of the defendant’s plea, of which he had to be informed. That a consequence is “known,” however, does not mean a defendant must be informed of it to render the plea voluntary. In State v. Ginebra, 511 So.2d 960, 961 (Fla.1987), we held that a trial court judge is under no duty to inform a defendant of the collateral consequences of his guilty plea. A defendant must only be made aware of the direct consequences of the plea- — i.e., those having a “definite, immediate, and largely automatic effect on the range of the defendant’s punishment.” Major v. State, 814 So.2d 424, 428, 431 (Fla.2002) (differentiating between collateral and direct consequences). The volun-tariness of a plea depends on whether the defendant is aware of the direct consequences of the plea and those consequences listed in Florida Rule of Criminal Procedure 3.172(c). Id.; see Ginebra, 511 So.2d at 962 (“We note that there are numerous other collateral consequences of which a defendant does not have to be knowledgeable before his plea is considered knowing and voluntary”). The district courts of appeal, including the Fourth District in this case, agree that the statutory sexual offender and sexual predator reporting and registration requirements are collateral consequences of a plea. See Partlow, 813 So.2d at 1000; Nelson, 780 So.2d at 295 (stating this conclusion and listing cases from the other district courts); State v. Stapleton, 764 So.2d 886, 887 (Fla. 4th DCA 2000) (same), review denied, 804 So.2d 330 (Fla.2001).

We agree with the district courts that the sexual offender registration requirement is a collateral consequence of the plea. A direct consequence must affect the range of punishment in a definite, immediate, and largely automatic way. The registration requirement has absolutely no effect on the “range of the defendant’s punishment” for the crime to which Partlow entered a plea. Because the requirement to register is not punishment at all, and therefore cannot affect the range of the defendant’s punishment, it is merely a collateral consequence of the plea. See § 943.0435(12), Fla. Stat. (2002) (stating that sexual offender designation “is not a sentence or a punishment but is simply the status of the offender”). Although a defendant’s later failure to register as a sexual offender constitutes a third degree felony, see § 943.0435(9), Fla. Stat., such consequences flow from a violation of that statute, not the one for which he entered a plea. The fact remains that the defendant faces no further punishment for this crime simply because the law imposes other duties as a result.

Based on the collateral nature of the sexual offender registration requirement, the First District Court of Appeal correctly concluded in Nelson that the defendant failed to establish a manifest injustice requiring withdrawal of the plea. 780 So.2d at 295. In contrast, although the Fourth District acknowledged in this case that the sexual offender registration requirement is a collateral consequence, it nevertheless found that Partlow’s ignorance of this collateral matter rendered his plea involuntary. Partlow, 813 So.2d at 1000. As we explained above, however, failure to inform a defendant about a collateral consequence — one that does not have a definite, immediate, and largely automatic effect on the range of the defendant’s punishment — cannot render the plea involuntary. In Ginebra, for example, we addressed a claim that defense counsel failed to inform the defendant of the possibility of his deportation upon entry of his plea. 511 So.2d at 960. Although we recognized that deportation may be a severe consequence, we held that because the possibility of deportation was collateral, defense counsel was not ineffective for failing to advise his client about it. Id. at 961-62. Rule 3.172(c) was later amended to require that defendants be informed of such a consequence. See State v. DeAbreu, 613 So.2d 453 (Fla.1993) (dismissing review and noting that rule change superseded Ginebra). This rule amendment, however, did not invalidate the reasoning in Ginebra. See Major, 814 So.2d at 428 (noting amendment of rule 3.172(c), but expressly affirming that Ginebra correctly states the law regarding failure to advise of collateral consequences). See also Watrous v. State, 793 So.2d 6, 9-10 (Fla. 2d DCA 2001) (holding that the potential civil commitment as a sexually violent predator under the Jimmy Ryce Act, §§ 394.910-.931, Florida Statutes (2000), is a collateral consequence, but urging that rule 3.172(c) be amended to require advising defendants of it). The Fourth District erred by equating the failure to inform a defendant of a collateral consequence, which does not affect the voluntariness of a plea, with the failure to inform a defendant of a direct consequence, which does.

In conclusion, to obtain relief through a motion to withdraw a plea after sentencing under rule 3.170(l), a defendant must demonstrate a manifest injustice, such as involuntariness of the plea. See Fla. R.Crim. P. 3.170(l); Fla. R.App. P. 9.140(b). A claim that a defendant was not informed of a collateral consequence, however, is insufficient to render a plea involuntary. Accordingly, we approve Nelson and quash the decision of the Fourth District in Part-low.

It is so ordered.

WELLS, LEWIS, QUINCE and CANTERO, JJ., concur.

CANTERO, J., concurs with an opinion.

PARIENTE, J., dissents with an opinion, in which ANSTEAD, C.J., and SHAW, Senior Justice, concur.

CANTERO, J.,

concurring.

I fully concur in the majority opinion. I write only to address an inherent arbitrariness with the application of Florida Rule of Criminal Procedure 3.170, which governs the withdrawal of guilty pleas, as currently written. Under paragraph (f) of the rule, which applies to motions to withdraw pleas filed before sentencing, a “court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn.” Fla. R.Crim. P. 3.170(f) (emphasis added). This rule is construed liberally in favor of the defendant because the law favors trial on the merits. Graham v. State, 779 So.2d 604, 605 (Fla. 2d DCA 2001). To obtain withdrawal, a defendant must establish “good cause” by showing that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances that affect the defendant’s rights, but a defendant also may obtain relief in the interest of justice on a lesser showing at the court’s discretion. See Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983). The rule allows a defendant time to reflect on the plea, and its consequences, and determine whether a plea is in his best interests.

On the other hand, in the interest of finality, once a sentence is imposed a defendant seeking to withdraw a plea bears a much heavier burden. Rule 3.170(l), which governs withdrawal of a plea after sentencing, both limits the grounds on which such motion may be made and requires the defendant to demonstrate a manifest injustice. See Lopez v. State, 536 So.2d 226, 229 (Fla.1988); Williams v. State, 316 So.2d 267, 274 (Fla.1975); Fla. R.Crim. P. 3.170(l); Fla. R.App. P. 9.140(b).

The problem arises when, as often happens, a defendant is sentenced immediately after the plea. In such cases, the “right of reflection” under rule 3.170(f) is illusory. The right is snatched away almost immediately after it is given. On the other hand, in some cases many days, or weeks, may pass between the date of the plea and the sentence. Thus, whether a defendant retains the right of reflection, as the rule allows, depends on the rather arbitrary circumstance of whether the particular judge decides to sentence immediately or wait until another day. In this case, Part-low was sentenced immediately after he entered his plea. Although only about twenty days elapsed between the plea and his motion to withdraw it, he still had to demonstrate manifest injustice. Had Partlow been able to file his motion before he was sentenced, I believe his motion could have demonstrated good cause to withdraw the plea, or at least sufficient circumstances to justify the judge, in his discretion, permitting him to do so.

While I do not suggest that a time certain be required between a defendant’s entering a plea and imposition of the sentence, I would recommend that The Florida Bar’s Criminal Procedure Rules Committee study rule 3.170 and consider whether the rule should be amended to provide a time certain within which a defendant could seek to withdraw a plea under subdivision (f) even after a sentence. Such an amendment would guarantee that the right in rule 3.170(f) to seek to withdraw a plea for good cause is not immediately rendered moot. It would also assure that whether a defendant retains the right of reflection after a plea would not depend on the fortuity of the particular judge’s scheduling habits.

In addition, I would recommend that The Florida Bar’s Criminal Procedure Rules Committee also consider whether to recommend that rule 3.172 be amended to require courts, before accepting a plea, to inform defendants whenever the sexual offender registration requirement applies. Just as we amended the rule after State v. Ginebra, 511 So.2d 960, 961 (Fla.1987), to require that defendants be informed of potential deportation proceedings, the sexual offender registration requirement is an important enough consequence, even if collateral, to justify informing a defendant of its existence. A defendant’s constitutional right to a jury trial is sacrosanct. See art. I, § 22, Fla. Const. (“The right of trial by jury shall be secure to all and remain inviolate.”); State v. Griffith, 561 So.2d 528, 530 (Fla.1990) (stating that right of trial by jury is “indisputably one of the most basic rights guaranteed by our constitution”); Fischer v. State, 429 So.2d 1309, 1311 (Fla. 1st DCA) (“The right to trial by jury is, of course, one of the most sacred and fundamental rights of our legal system.”), review denied, 438 So.2d 834 (Fla.1983). The rules should require that before a defendant waives that important right, the defendant be informed of all important consequences, whether direct or collateral.

PARIENTE, J.,

dissenting.

I dissent because in my opinion the sexual offender registration requirement is a “direct” rather than a “collateral” consequence of a plea of guilty or nolo contende-re, and because I agree with the Fourth District’s conclusion that a plea entered in ignorance of this consequence may not “be thought sufficiently informed — and therefore genuinely voluntary — that a trial judge could rightfully refuse to allow it to be withdrawn so soon after the plea was made.” Partlow v. State, 813 So.2d 999, 1000 (Fla. 4th DCA 2002) (footnote omitted).

In Major v. State, 814 So.2d 424, 431 (Fla.2002), we defined direct consequences as those having a “definite, immediate and largely automatic effect on the range of the defendant’s punishment.” The sexual offender registration requirement of section 943.0435, Florida Statutes, fits within this definition. Section 943.0435(2)(a) requires the offender to report to the sheriffs office within forty-eight hours of release from custody; subsection (3)(a) requires registration at the Department of Highway Safety and Motor Vehicles within forty-eight hours after registration with the sheriff; and subsection (9) makes the failure to comply with these requirements a third-degree felony. Applying the Major criteria, the registration requirement is “definite” in that it is not conditional or contingent on any other event, “immediate” in that its requirements commence within forty-eight hours of release from custody, and has a “largely automatic effect on the range of punishment” in that failure to comply subjects the offender to arrest and prosecution for a third-degree felony. The registration requirement is applicable indefinitely and continues throughout the offender’s lifetime to require reporting within forty-eight hours of any change in residence, employment, or status.

In distinguishing direct from collateral consequences, I do not interpret Major as requiring that a direct consequence of a plea entail an automatic criminal penalty. In Major, 814 So.2d at 429-31, we adopted the less restrictive definition of what constitutes a direct consequence of a plea from the Fourth District’s opinion in Daniels v. State, 716 So.2d 827 (Fla. 4th DCA 1998). In Daniels, the Fourth District, utilizing the definition of a direct consequence of the plea we later adopted in Major, held that a defendant was entitled to withdraw a nolo contendere plea entered without the defendant first being informed of the license revocation. The Fourth District concluded that the revocation was definite, immediate, and automatic upon conviction, that it was a consequence of the plea, and that it was a “penalty” as contemplated by Florida Rule of Criminal Procedure 3.172(c)(1). See Daniels, 716 So.2d at 828-29.

Each of these observations in Daniels applies to the sexual offender registration requirement at issue here. Contrary to the majority’s conclusion that the mandatory lifelong registration coerced by the threat of criminal prosecution for noncompliance is not a “punishment,” I conclude that it is no less a penalty or punishment— terms that are synonymous in this context — than the revocation of one’s driving privileges held to be a direct consequence of a plea in Daniels. As stated by the Fourth District, “if the ... decision denying permission to withdraw the plea were correct, Florida law would be understood to require withdrawal when the unadvised consequence was the 2 year loss of a driver’s license but not when the unadvised consequence was the lifelong imposition of sexual offender registration.” Partlow, 813 So.2d at 1000.

Additionally, the mandatory nature of the reporting requirement distinguishes this consequence from the potential for future habitualization, deportation, or commitment under the Jimmy Ryce Act, consequences that have been held collateral. See Major, 814 So.2d at 431 (habitualization); State v. Ginebra, 511 So.2d 960 (Fla.1987) (deportation); Watrous v. State, 793 So.2d 6 (Fla. 2d DCA 2001) (post-sentence civil commitment under Jimmy Ryce Act). Further, as I stated in my eoncurring-in-result-only opinion in Major, “I do not agree ... that the issue of what should be included in a plea colloquy should be resolved based on a rigid definition of direct versus collateral consequences.” 814 So.2d at 431.

Moreover, the decisions finding offender registration to be collateral consequences of a plea largely rely on Benitez v. State, 667 So.2d 476 (Fla. 3d DCA 1996). See, e.g., State v. Stapleton, 764 So.2d 886 (Fla. 4th DCA 2000); Oce v. State, 742 So.2d 464 (Fla. 3d DCA 1999); LaMonica v. State, 732 So.2d 1175 (Fla. 4th DCA 1999). The court in Benitez held in a very brief opinion that the sexual predator designation and registration were collateral to a plea, citing to State v. Will, 645 So.2d 91, 94-95 (Fla. 3d DCA 1994), and Polk v. State, 405 So.2d 758, 761-62 (Fla. 3d DCA 1981). Will concerned retroactivity of the decision in Ashley v. State, 614 So.2d 486 (Fla.1993), requiring that a defendant be advised as part of a plea colloquy that a habitual offender sentence may render him ineligible for early release. The court in Polk held that the failure to advise a defendant that as a convicted felon he would not be allowed to possess a firearm did not render the plea involuntary. Neither Will nor Polk required an affirmative act by the offender as a direct consequence of the plea. Therefore, I do not believe that the Third District in Benitez adequately distinguished the reporting requirement from sexual predator designation. Benitez and the precedent relying on it have very little precedential value for the proposition that a reporting requirement is collateral to the plea.

The decisions finding the reporting requirement to be collateral preceded this Court’s statement in Major that a direct consequence has a “definite, immediate, and largely automatic effect on the range of the defendant’s punishment.” For these reasons, I believe that the failure to advise a defendant of the sexual offender reporting requirements of section 943.0435 may render a plea involuntary and thus subject to withdrawal under rule 3.170(l). I would approve the result below, on grounds that failure to advise of the registration and reporting requirement undermines the voluntariness of the plea because the requirement is a direct rather than a collateral consequence.

I agree with Justice Cantero that this case illustrates the advisability of several rule amendments. To an even greater degree than the prospect of deportation, on which a defendant must now be advised under rule 3.172(c)(8), a defendant should be informed of the registration and reporting requirement in section 943.0435 at the time of the plea. The proposed amendment to Florida Rule of Criminal Procedure 3.172 suggested by Justice Cantero in his separate concurrence would resolve this inequality. I also agree with his recommendation that consideration be given to an amendment of rule 3.170 that will permit a defendant to seek withdrawal of a plea after sentencing for “good cause” for a defined period of time, independent of the narrow criteria of rule 3.170(l). See, e.g., Roesch v. State, 819 So.2d 862, 863 (Fla. 1st DCA 2002) (none of grounds raised in defendant’s rule 3.170(l) motion were cognizable under rule).

In this case, however, even under our current rules, I would allow the defendant to withdraw his plea pursuant to a motion filed only twenty days after the nolo con-tendere plea and imposition of sentence, on grounds that the defendant was ignorant of the serious and direct consequence of the sexual offender registration requirement when he entered the plea.

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

      . Rule 3.170(2) erroneously cites to rule 9.140(b)(2)(B)(i)-(v). The appellate rule was renumbered effective January 1, 2001; the citation should now be to rule 9.140(b)(2)(A)(ii) a-e. See Amendments to Florida Rules of Appellate Procedure, 780 So.2d 834, 863 (Fla.2000).

      . Florida Rule of Criminal Procedure 3.172(c) contains a list of items of which a trial judge must inform a defendant in determining the voluntariness of a plea.

      . We note that respondent Partlow does not argue to the contrary.

      . Partlow, relying on Daniels, does in fact argue that the sexual offender registration requirements are a direct consequence of the plea.

      . In the decision below, the Fourth District relied on its prior statement in Stapleton that sexual offender registration is "merely a collateral effect." Partlow v. State, 813 So.2d 999, 1000 (Fla. 4th DCA 2002).


author: PER CURIAM.

text:
    Amos Lee KING, Appellant, v. STATE of Florida, Appellee.
    No. SC03-260.
    Supreme Court of Florida.
    Feb. 24, 2003.

      Peter James Cannon, Assistant CCRC, Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Carol M. Dittmar, Senior Assistant Attorney General, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Amos Lee King, a prisoner under sentence of death and an active death warrant, has filed an appeal in this Court from orders of the Sixth Judicial Circuit in and for Pinellas County denying a successive motion for postconviction relief and for production of public records. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

The factual background and procedural history of this case are set forth in King v. State, 808 So.2d 1237 (Fla.2002), cert. denied, 536 U.S. 962, 122 S.Ct. 2670, 153 L.Ed.2d 843 (2002). Since that decision, we have considered this case in decisions in respect to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in King v. Moore, 824 So.2d 127 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), cert. denied, — U.S. —, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002).

King’s execution under this warrant was scheduled for December 2, 2002. On November 29, 2002, King filed a motion for a subpoena and an order to release any and all autopsy and medical records in the medical examiner’s office regarding John Peel, Jr. The circuit court, on December 1, 2002, entered an order denying this motion filed by King. King appealed to this Court, and this Court entered an order on December 2, 2002, affirming the circuit court’s orders. King v. State, 833 So.2d 774 (Fla. Dec.2, 2002). Governor Jeb Bush, on December 2, 2002, stayed King’s execution.

Governor Bush thereafter rescheduled King’s execution for February 26, 2003. On February 14, 2003, a hearing was begun in the Sixth Judicial Circuit Court on motions filed by King. Following the conclusion of the hearing, the circuit court entered a detailed written order denying the relief sought by King. King then filed this appeal.

The first claim raised in this appeal by King is that the trial court erred in denying King’s motion to disqualify the trial judge. The State points out that this is a motion to disqualify a successor judge. King has previously filed motions for trial judge disqualification, and the judges have recused themselves. Disqualification of trial judges is covered by Florida Rule of Judicial Administration 2.160. An order denying a motion pursuant to rule 2.160(g) is reviewed for abuse of discretion. Quince v. State, 732 So.2d 1059, 1062 (Fla.1999). We find no basis in the record for finding an abuse of discretion by the circuit court in denying King’s successive motion for disqualification. Therefore, the circuit court’s order denying disqualification is affirmed.

The second claim raised in this appeal is that the circuit court erred in denying King’s demand for production of additional public records. The public records alleged to be the subject of this motion involve autopsies performed by Medical Examiner Joan Wood in other unrelated cases. The present issue is the issue which was the subject of a similar motion previously denied by the circuit court, which denial was affirmed by this Court in our order dated December 2, 2002. King v. State, 833 So.2d 774 (Fla. Dec.2, 2002). We likewise affirm the present order of the circuit court denying King’s motion.

The third and last claim raised in King’s appeal is that the circuit court erred in not granting King’s request for records from the Office of the Governor by ruling that such records were exempt under section 14.28, Florida Statutes (2002). We affirm the circuit court’s order on this issue. We agree with the circuit court that the records sought are clemency records, which are exempt from production. The exemption from production has not been waived. The request to compel the Governor to produce the records was correctly denied. See Roberts v. Butterworth, 668 So.2d 580 (Fla.1996); Parole Commission v. Lockett, 620 So.2d 153 (Fla.1993).

Therefore, we affirm the orders of the circuit court which are the subject of this appeal.

It is so ordered.

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

QUINCE, J., recused.

      .The unpublished order stated:
      Amos Lee King, a prisoner under sentence of death and an active death warrant, appeals three orders of the circuit court entered on December 1, 2002, denying the following motions filed by Amos Lee King:
      1. Successive Motion to Vacate Judgment and Sentence, and Request for Evi-dentiary Hearing and Stay of Execution, with date of service on November 29, 2002;
      2. Emergency Petition to Stay Execution, Motion for Subpoena and Order to Release Any and All Autopsy and Medical Records in Possession of the Medical Examiner's Office Regarding John Peel, Jr., with date of service on November 29, 2002; and
      3. Defendant's Motion to Release Evidence for DNA Testing, with date of service on November 29, 2002.
      The history of judicial process in the state and federal courts regarding this case is set out in King v. State, 808 So.2d 1237 (Fla.2002). In his brief to this Court, King argues the following:
      I. The lower court erred when it denied Mr. King’s motion to release evidence for DNA testing.
      II. The lower court erred when it summarily denied an evidentiary hearing on claims I and II of King’s successive motion to vacate judgment served on November 29, 2002.
      III. The lower court erred when it summarily denied claims III, IV, and V of King's successive motion to vacate judgment served on November 29, 2002.
      King has filed a Motion for Leave to File Amended Brief. We grant the motion to file the amended brief and said brief was filed with this Court on December 2, 2002.
      King also seeks a stay of execution.
      We affirm the circuit court's orders denying King's motions in respect to all points raised by King in this appeal. We deny the request for a stay of execution. No rehearing shall be allowed.

      . See supra note 1.