author: POLEN, J.

text:
    Eric Charles ERRICKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2754.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from the entry of a final order adjudicating the appellant guilty of trafficking in hydrocodone, and sentencing him to 180 months incarceration. For the reasons explained in detail below, we find the trial court erred in denying the motion to suppress and reverse Errickson’s conviction.

On August 18, 2001, Deputy Russell Tucker was working the midnight shift in St. Lucie County, Florida. Around 4:00 a.m. he noticed Eric Errickson sitting on the curb next to a bicycle and a pay phone in front of a closed Shell Gas Station. The Shell station had been burglarized numerous times. Tucker knew that most burglaries of convenience stores take place between 2 and 4 a.m. Tucker called 911 and told them he was stopping to investigate a suspicious person. Tucker put his overhead lights on, put his spotlight on, and approached Errickson. Tucker explained that the light helps him see if the person has any weapons and it also disorients the person so they cannot see Tucker exit the vehicle. Errickson made no attempt to leave.

When Tucker asked Errickson what he was doing, Errickson told him he was heading north on his bike from West Palm Beach and stopped for some water. The hose looked as if it had been turned on, the ground was wet. Errickson told Tucker he had no ID on him. Errickson told him his name, but spelled his last name differently than how it is actually spelled. Tucker then called to check if there were any outstanding warrants. He was advised that the name was listed as an alias and there was a possible warrant for a violation of probation in Palm Beach. At that time, Tucker put handcuffs on Errick-son, told him there was a possible warrant, and put him in the back of the police car. When the warrant was confirmed, Errick-son was arrested.

Deputy Waters arrived to assist Tucker. After placing Errickson under arrest, Waters conducted an inventory search of Er-rickson’s property. She recovered a U.S. passport, Florida ID card, and a small prescription bottle with thirty-three hydro-codone pills.

Errickson was charged by information with one count of giving a false name while arrested and one count of trafficking in hydrocodone. Errickson filed a motion to suppress alleging that the items taken were the result of an unlawful search and seizure. The trial court denied the motion finding that it was a consensual citizen encounter.

Errickson pled no contest to the charge of giving a false name and proceeded to trial on the trafficking charge. The jury found Errickson guilty of trafficking in hydrocodone as charged and he was sentenced to 180 months as the minimum mandatory sentence under section 893.135, Florida Statutes. This appeal timely follows. Errickson raises two issues on appeal. Because we agree with the first issue, we need not reach the second issue regarding the constitutionality of the sentencing statute.

Errickson initially contends the trial court erred in denying his motion to suppress. We agree. This court has clarified that “[a] reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, so long as those findings are supported by the record; however, a suppression order that turns on an issue of law is reviewed by a de novo standard of review.” Underwood v. State, 801 So.2d 200, 202 (Fla. 4th DCA 2001).

The Florida Supreme Court explained that there are three levels of police-citizen encounters in Popple v. State, 626 So.2d 185 (Fla.1993).

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.

Id. at 186.

In Popple, the court recognized there is no litmus-paper test for distinguishing a consensual encounter from a seizure. However the court clarified that a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and artic-ulable suspicion of criminal activity. Id. at 187-88. A citizen encounter becomes an investigatory stop once an officer shows authority in a manner that restrains the defendant’s freedom of movement such that a reasonable person would feel compelled to comply. Parsons v. State, 825 So.2d 406 (Fla. 2d DCA 2002).

Courts have routinely held that an officer’s use of emergency lights “evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave.” Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002); see also Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999).

The state argues that under the facts of this case the officer’s use of overhead lights did not change the nature of the stop. The state points to Tucker’s testimony that he put the lights on for his protection. Not only was this argument specifically rejected in Brooks, a closer reading of Tucker’s testimony does not support this position. Tucker testified that he initially had his overhead lights on and then turned on his spotlight when he approached Errickson. Tucker testified that he stopped his vehicle with the overheads on and turned his spotlight on because it helped his defense. More specifically that the spotlight helped him to see if Errickson had any weapons and to disorient him a little.

In addition, when asked by defense counsel whether Errickson was free to leave, Tucker responded as follows: “Basically he’s not free to leave till I made contact with him and asked him what he was doing there and asked him for identity identifying him.” In fact, when Tucker was asked if he was doing an investigation, he responded that he was as soon as he made contact with Errickson. Tucker also explained that after Errickson told him his name, Tucker “asked him to stay seated on the curb” while he checked for warrants.

The state contends that what started as a consensual encounter became a detention only at the point when Tucker asked Errickson to stay seated. However, the state suggests that at this time, the officer had the requisite suspicion to momentarily detain Errickson. We disagree. In Popple, the court also explained:

a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.

Popple, 626 So.2d at 186 (citing § 901.151, Fla. Stat. (1991); Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984)).

In Ippolito v. State, 789 So.2d 423 (Fla. 4th DCA 2001), this court addressed this issue in a similar context. In Ippolito, officers approached a car parked in front of a partially closed gas station. It was 3:00 am. The officers watched the car, noticed no illegal activity, but decided to investigate. When the officers asked the occupants what they were doing there, they told the officers they were using the payphone. The officers had not seen them use the phone over the past four or five minutes so did not believe them and asked them to step out of the vehicle. They subsequently discovered heroin in the vehicle. The trial court denied the motion to suppress, finding that there was reasonable suspicion for an investigatory stop based upon the hour, the officer’s knowledge of previous burglaries at the station, and the officer’s belief that appellant was untruthful about his reasons for being in the area. This court rejected that argument and reversed the ruling of the trial court, holding that “[ajlthough it was late at night and appellant was in an area of past criminal activity, these facts do not amount to a well-founded suspicion. Appellant was legally parked at the partially open gas station and he was not engaged in any observable unlawful activity.” Id. at 425. The opinion also clarified that “the officer’s belief that appellant lied about using the pay phone [did] not rise to the level of reasonable suspicion_[A]n officer’s belief that an individual is lying does not, in and of itself, justify detaining him.” Id. at 426.

Although the state claims Ippolito is distinguishable because the station was partially open, Ippolito is instructive. In this case, part of the officer’s explanation for the stop was the hour, and his knowledge that the Shell station had been burglarized numerous times. These two justifications were specifically rejected in Ippolito. In addition, Tucker acknowledged that Errickson told him he stopped for water and the ground under the hose was wet. There was no evidence of any criminal activity and Tucker’s mere suspicion was insufficient under Popple to permit the stop.

Under these facts, and in accord with the above discussed case law, we hold that the trial court erred as a matter of law by concluding that this was a citizen encounter. As a result, the trial court erred in denying the motion to suppress and that order, as well as Errickson’s conviction, are hereby reversed.

REVERSED.

WARNER and STEVENSON, JJ., concur.

      . In Ippolito, the station was closed, but the gas pumps were lit and open for use by customers using credit cards.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Douglas PETERSON, Appellant, v. Alexandra ASKLIPIOUS, Appellee.
    Nos. 4D02-2921, 4D02-3997.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Robert L. Bogan of Law Offices of Brav-erman & Rossi, Boca Raton, for appellant.
    Randy D. Ellison, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Douglas J. Peterson, appeals two orders awarding trial and appellate attorney’s fees to counsel for appellee, Alexandra Asklipious, in Case No. 4D02-2921. In a related case, No. 4D02-8997, Peterson appeals a trial court order finding him in contempt of court. These cases have been consolidated for purposes of appeal. We affirm the trial court’s award of attorney’s fees to appellee’s trial counsel. We also affirm the award of fees to appellee’s appellate counsel. We reverse, however, the trial court’s order finding appellant in contempt.

Peterson and Asklipious are the parents of a child bom February 26, 1999. Peterson was ordered to pay attorney’s fees to Asklipious’s trial and appellate attorneys based upon a petition to determine paternity and request for custody and child support filed by Peterson. The amount was required to be paid within sixty days of the date of the orders. When Peterson failed to make either payment, upon motion by both the trial and appellate attorneys, the court found Peterson in contempt. It ordered him to be incarcerated for fifteen days unless he should sooner purge himself of contempt by paying the amount ordered by the court in both orders.

On appeal, Peterson argues that the trial court erred in awarding trial and appellate attorney’s fees to Asklipious’s attorneys. We find no error in the trial court’s award of fees to Asklipious’s trial counsel. Furthermore, Peterson’s argument concerning the error in awarding appellate attorney’s fees was not presented to the trial court. We find that Peterson has waived this argument for purposes of appeal. See Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001).

We reverse the court’s order holding Peterson in contempt. Peterson not only appealed the contempt order, but also filed a writ of prohibition after the trial judge denied his motion to disqualify the judge. This court has already granted Peterson’s petition for writ of prohibition. See Peterson v. Asklipious, 833 So.2d 262 (Fla. 4th DCA 2002). The motion for disqualification was based upon the trial court’s comments at the hearing on the motion for contempt, wherein the following transpired:

THE COURT: So he’s going to tell me one more time he has no money when I haven’t believed him anytime before that?
[PETERSON’S] COUNSEL: Well, he’s entitled. It’s not a matter of what you believe, it’s a matter of ...
THE COURT: Unfortunately, I already made those findings, and I don’t need his testimony.
[PETERSON’S] COUNSEL: It’s a matter of the evidence, Your Honor.
THE COURT: Motion for contempt is granted.

Id. at 263.

At the contempt hearing, Peterson had the burden of demonstrating that he no longer had the ability to make the payments ordered in the attorney’s fee order, and a due process right to put on whatever evidence he could to carry that burden. Walker v. Edel, 727 So.2d 359 (Fla. 5th DCA 1999); see Cook v. Navarro, 611 So.2d 47 (Fla. 4th DCA 1992). Although it may be true that he could, in fact, make these payments, he was nevertheless entitled to demonstrate his inability to do so. Because the court did not allow him to present evidence of his inability to pay, we reverse the order holding him in contempt of court.

AFFIRMED in part; REVERSED in part, and REMANDED.

KLEIN, GROSS and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    Ronald J. PALAMARA, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Division of Florida Land Sales, Condominiums and Mobile Homes, Appellees.
    No. 4D02-4400.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Barry Silver, Boca Raton, for appellant.
    Joseph S. Garwood, Tallahassee, for ap-pellee Department of Business and Professional Regulation.
   KLEIN, J.

Appellant, whose application for a yacht broker’s license is the subject of this proceeding, had been convicted of resisting an officer without violence, had a judgment against him for dishonest conduct in a yacht transaction, and was found to have evaded service of process in another yacht transaction. The administrative law judge (ALJ) ruled that the judgments in these cases were not competent evidence of lack of good moral character and recommended the granting of the license. The department, however, disagreed and denied the application. We agree with the department that the judgments should have been considered as evidence, but reverse because the ALJ must still decide the factual issue of whether appellant was of good moral character.

In the criminal case, which occurred in 1998, appellant had been convicted of resisting an officer without violence and sentenced to time served and probation.

In one of the civil cases, a judgment was entered against appellant for $18,000 stating that he had fraudulently and dishonestly misappropriated funds which he had been given to pay for work performed on a vessel by a third party. Appellant did not disclose the details of this case, but rather asserted only that the allegations were unfounded.

In the other civil case, appellant appealed a $157,500 default judgment, and this court affirmed, concluding that appellant had evaded service of process. The complaint had alleged that appellant had committed tortious interference by secretly purchasing a yacht for a buyer, so that the buyer could avoid paying a commission earned by another broker. Appellant did not disclose this case in his application. AH of the judgments were final, not subject to appellate review.

Appellant had been previously licensed as a yacht broker, but his license had expired. Appellant’s evidence that he was of good moral character was provided by people in the community who knew him and testified that he had a reputation for being honest and of good moral character.

Although the ALJ accepted the certified copies of the judgments from the three cases in evidence, he ruled that they were not, in and of themselves, competent evidence. He relied on cases such as Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla.1984), in which it was held that a criminal conviction is not admissible in a civil action to prove the truth of the underlying facts in the criminal case.

Section 326.004(6)(a), Florida Statutes (2002), provides that the department may deny a yacht broker’s license to any applicant who does not furnish satisfactory proof that he or she is of good moral character. Florida Administrative Code rule 61B-60.003(3)(a)7 (2002), which governs applications for yacht broker’s licenses, provides:

The foregoing factors shall be considered in determining whether an applicant is of good moral character for purposes of licensure under Chapter 326, F.S., if they comply with the following guidelines:
a. The disposition of criminal charges shall be considered if such constitutes a felony, or if such constitutes a misdemeanor involving moral turpitude, fraud, theft, dishonest assault and battery, or false statement.
b. The disposition of any administrative action or of any civil litigation involving fraud, misrepresentation, theft, assault and battery, or moral turpitude shall be considered if such results in a determination against the interests of the applicant.

The department ruled that the ALJ was required by rule 61B-60.003(3)(a)7 to consider the “disposition” of the cases brought against appellant and that the certified copies of the judgments were sufficient to establish that he was not of good moral character. The department also based its denial of the license on appellant’s failure to disclose one of the lawsuits against him and his failure to disclose the details of the other two cases.

The Romano ease, on which the ALJ relied, was a civil action in which the issue was whether a criminal conviction of fraud would be conclusive proof of fraud in a civil action based on principles of collateral es-toppel. Romano is distinguishable because the rule involved in this case does not provide that the dispositions of the prior cases are conclusive. The ALJ is only required to consider certified copies of the judgments as evidence of character.

We must, however, reverse for the ALJ to decide the question of good moral character. As the court explained in Albert v. Florida Department of Law Enforcement, 573 So.2d 187 (Fla. 3d DCA 1991):

In the context of professional and occupational licensing, the question of what constitutes “good moral character” has been held to be ordinarily a question of fact for the trier of fact. See Bachynsky v. State Dep’t of Professional Regulation, 471 So.2d 1305 (Fla. 1st DCA 1985); Village Zoo, Inc. v. Division of Alcoholic Beverages & Tobacco, 450 So.2d 920, 921 (Fla. 4th DCA 1984); White v. Beary, 237 So.2d 263, 266 (Fla. 1st DCA 1970); see also Aquino v. Dep’t of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983); Wash & Dry Vending Co. v. State Dep’t of Business Regulation, 429 So.2d 790 (Fla. 3d DCA 1983). The result is otherwise, of course, where a specific provision of a statute or rule categorically excludes an applicant from consideration. See e.g., § 943.13(4), Fla. Stat. (1987)(excluding applicants who have certain felony or misdemeanor convictions); see also Cirnigliaro v. Florida Police Standards & Training Comm’n, 409 So.2d 80 (Fla. 1st DCA 1982).

Id. at 188 (footnote omitted).

In the present case neither the statutes nor the rules categorically exclude applicant from consideration. Accordingly, although these judgments are certainly strong evidence regarding appellant’s moral character, it is for the ALJ to determine this factual issue. Reversed.

GUNTHER and GROSS, JJ., concur.

      . Romano, which held that the criminal conviction would not be conclusive proof, has been limited by the legislature in certain circumstances that do not apply to this case. See Stogniew v. McQueen, 656 So.2d 917, 920 (Fla.1995) (holding that sections 772.14 and 775.089(8) do not mandate total abandonment of the mutuality principle upheld in Romano).


author: WARNER, J.

text:
    Paul Vincent DAMIANO, Appellant, v. Amalia DAMIANO, Appellee.
    No. 4D02-4194.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.

      Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellant.
    Ileana Haedo of Ileana Haedo, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

In granting an upward modification of alimony, the trial court determined that a dramatic increase in the price of homes in Broward County constituted a substantial change of circumstances, even though the expenses of the wife’s new home did not exceed that of the marital home which was sold according to the parties’ agreement. We hold that this factor does not constitute a substantial change in circumstances and reverse.

Pursuant to the parties’ final judgment of dissolution of marriage, the husband was required to pay to the former wife $2,500 per month for three years and then $1,200 per month thereafter, which, together with what the court determined the former wife could earn by working, would support her needs. The judgment granted the wife exclusive use and possession of the marital residence until the youngest child reached the age of majority, at which time the home was to be sold and the proceeds divided equally between the parties.

Three years later, the wife filed a petition for modification of alimony, claiming her expenses had increased as a result of her two adult children living with her in the marital home. The husband then moved to enforce the judgment as to the sale of the marital home. The court granted the husband’s motion and ordered the house to be sold. About six months later, the husband purchased the marital home and the former wife received about $47,000 in proceeds.

At the hearing on the petition for modification, the wife testified that she had purchased a new home that was not located in as good a neighborhood as her former home. The new home cost $160,000, but her mortgage payment, including taxes and insurance, was slightly less than the payment on the marital home. The wife was employed and earning more than she did at the time of the final judgment. Her expenses were also increased, but this was due in large part to her increased spending on items and services that were not part of the expenses she had at the time the dissolution was entered. For instance, she obtained a cell phone and two phone lines in her home, while the parties only had one phone line during the marriage.

In its final judgment granting the modification, the court noted that the former husband had stipulated that he had the ability to pay an increase in alimony. It determined that the substantial increase in housing costs in Broward County constituted a substantial change in circumstances not contemplated at the time of the final judgment. The court increased the former wife’s alimony to $2,000 per month. The husband appeals this order.

Three prerequisites are required for a modification of alimony: 1) a substantial change in circumstances; 2) that was not contemplated at the time of final judgment of dissolution; and 3) is sufficient, material, involuntary, and permanent in nature. See Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992) (citations omitted). Common sense also dictates that the substantial change in circumstances must make the current alimony inadequate to meet the needs of the former spouse, as contemplated at the time of the final judgment of dissolution, or increase the needs of the former spouse, as a debilitating injury or illness would do. In this case, none of these factors are present. Assuming the cost of obtaining a new home significantly increased since the time of the final judgment, it did not increase the monthly needs of the former wife, as the expense of mortgage, taxes, and insurance on the home were less than on the marital home. Sale of the marital home at the time the youngest child reached majority was contemplated in the final judgment. Cf. Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977) (reversing order granting downward modification of alimony on ground that wife received $8,000 in proceeds from the sale of marital home because the sale was contemplated in the final judgment of dissolution and was not a substantial change in circumstances.) Moreover, if housing costs continue to rise, it will make the wife’s newly acquired asset more valuable, thus improving her financial picture, not diminishing it.

We hold that the increased price of homes is not a substantial change of circumstances warranting an upward modification of alimony. We therefore reverse the final judgment.

STONE and HAZOURI, JJ., concur.


text:
    Martin MAZZA and Penmar, Inc., Appellants, v. George J. SANTONI, Robert Wollman, Video Outlet I, Inc., Video Outlet II, Inc., Video Outlet III, Inc., Liberty Management, Inc., and Rose Media Group, Inc., Appellees.
    No. 4D02-3901.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.

      Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton and Ross Bennett Gampel of Klemick and Gampel, P.A., Miami, for appellants.
    Charles L. Curtis of Charles L. Curtis, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Appellants contend that the trial court erred in dismissing their third amended complaint with prejudice on the grounds that it was inconsistent with the prior pleadings and that it failed to name indispensable parties. We agree and reverse on both points.

The parties in this case established various business entities and entered into agreements to own and operate three adult video stores. Alleging that appellees wrongfully denied them their share of the profits from these businesses, appellants sued appellees for breach of contract and breach of fiduciary duty.

Indispensable Parties.

Appellees moved to dismiss the third amended complaint, contending that appellants failed to name certain indispensable parties, i.e., two limited companies, one corporation, and an individual, because they had been “specifically referenced in the third amended complaint but not named as parties.”

Florida law defines “indispensable parties” to a law suit as “ ‘[pjersons who have not only an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.’ ” Glancy v. First W. Bank, 802 So.2d 498 (Fla. 4th DCA 2001)(quoting Phillips v. Choate, 456 So.2d 556, 557 (Fla. 4th DCA 1984)).

Based on the pleadings in this case, we conclude that the business entities and individual who were not named as defendants do not have an interest in this lawsuit such that a final judgment could not be rendered without affecting their interests. The pleadings do not assert that any of the unnamed entities are parties to the oral agreement allegedly breached. Further, no relief of any kind is sought against them. Two of the businesses simply own real estate upon which the parties’ video stores are located. Another unnamed company was allegedly wrongfully paid excessive fees by appellees for bookkeeping services. The complaint, however, seeks damages only from those named defendants who allegedly misappropriated monies due appellants. In light of the above, we conclude that the trial court erred in dismissing the third amended complaint with prejudice for failure to name indispensable parties.

Departure of pleading

Appellees also sought dismissal on the ground that certain facts and claims asserted in the third amended complaint were inconsistent with facts and claims that had previously been alleged.

The trial court expressed concern that appellants had “shifted gears in midstream.” Initially, appellants alleged the existence of written contracts that governed the parties’ relationships and agreements. In the third amended complaint, appellants alleged that appellees breached an oral agreement that the three individual partners would share equally in the profits.

Appellees argued below that the concept of “departure of pleading” applied. In Dimick v. Ray, 774 So.2d 830, 834-35 (Fla. 4th DCA 2000), we recently discussed that concept. We stated:

In Lopez [v. Avery, 66 So.2d 689 (Fla.1953)], the court noted the then-prevailing law that an amendment to a pleading which stated an entirely different claim from the original complaint would be subject to a motion to dismiss by the defendant.
[T]he law is that a departure in pleading occurs when a party quits or departs from the case or defense which he has first made and resorts to another which gives rise to a wholly distinct and different legal obligation against his adversary.
The concept of “departure of pleading” as discussed in Lopez must be considered in light of the modern Florida Rules of Civil Procedure. These rules encourage the assertion of all available causes of action and claims against a defendant in one lawsuit. To avoid prejudice from the trial of several distinct causes of action against a defendant, the trial court is given broad authority to order the separate trial of issues or claims. The decided preference of the modern rules for all claims to be brought in one action, coupled with the allowance for the liberal amendment of complaints, makes plain that the “departure” concern expressed in Lopez is only viable where allowing the amendment will prejudice the defendant.

774 So.2d at 834 (citations omitted).

Appellants have all along alleged that appellees breached an agreement to share equally in the profits. The only difference is that the third amended complaint does not rely upon any written instrument for their claim. The legal obligation of appel-lees, however, is alleged to be the same. Moreover, it is difficult to accept appellees’ argument that they would suffer prejudice, where the case has not proceeded beyond the pleading stated. See generally Dimick, 774 So.2d at 884 (concluding that because the case was still at the summary judgment stage, additional time for preparation would cure prejudice resulting to defendants).

Equitable estoppel.

Finally, we find appellees’ equitable es-toppel argument to be without merit. See Dimino v. Farina, 572 So.2d 552 (Fla. 4th DCA 1990)(discussing that equitable estop-pel applies when the previous position has been asserted successfully).

REVERSED and REMANDED for further proceedings consistent with this opinion.

GUNTHER, KLEIN and TAYLOR, JJ., concur.


text:
    Ana HERNANDEZ, et al., Appellants, v. CYPRESS PROPERTY & CASUALTY INSURANCE, CO., Appellee.
    No. 3D03-852.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Gordon J. Evans, for appellants.
    Groelle & Salmon and Nancy I. Stein-McCarthy (Lake Worth), for appellee.
    Before SCHWARTZ, C.J., and LEVY, and GODERICH, JJ.
   PER CURIAM.

We affirm based on the authority of Fayad v. Clarendon National Insurance Co., No. 3D02-2477, 857 So.2d 293, 2003 WL 22187865 (Fla. 3d DCA Sept.24, 2003).

Affirmed.


text:
    Daniel T. LEE a/k/a Terry Proctor a/k/a Danny Stakins, Petitioner, v. Edward W. BIELUCH, Sheriff and State of Florida, Respondents.
    No. 4D03-3042.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.

      Jonathan R. Kaplan of Law Offices of Kaplan & Hutchinson, P.A., West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for respondents.
   WARNER, J.

Daniel Lee petitions this court for a writ of habeas corpus, seeking review of the circuit court’s order denying his motion to modify bond after the state nolle prossed a second charge which had resulted in the increase of his original bond. We previously granted the petition and ordered reinstatement of the original bond. We now write to explain that we granted the petition because the state presented no new information which would justify the increased bond amount once the second charge was dismissed.

Lee was charged in two separate cases with burglary of a structure and grand theft in the first case and trespass and grand theft auto in the second. At first appearance on both charges the court set a bond of $25,000 or “supervised own recognizance” release (“SOR”) with in-home treatment. Lee was released on SOR. Six months later he was arrested for a new offense of robbery with a deadly weapon. He moved for bond, which the court set at $50,000 with house arrest on all three pending cases, thus modifying the original bond. The state nolle prossed the robbery charge another six months later, and Lee moved to modify the bond to return it to the original bond.

At the hearing on modification, the state argued that the higher bond was appropriate because of the length of the prison term Lee was facing due to his extensive prior record. Defense counsel argued that the judge at first appearance knew about Lee’s prior record, but the court interrupted stating, “we don’t know that. A lot of times at first appearances the State is not able to come up with a full record....” Counsel noted that the only reason why the bond was increased was due to the new charge which had been dropped. Nevertheless, the court denied the bond modification.

The fact that the state dropped the charge does not necessarily mean that the circumstances surrounding the new charge did not warrant the change in bond. However, the state did not argue that notwithstanding its decision to drop the robbery charge, information related to that charge still supported the bond modification. Rather, the state argued that the $50,000 bond was appropriate based on the two original cases and Lee’s prior record. Lee suggests that the prior record was known to the first appearance judge. In support of this argument, Lee points out that the standard bond for the offenses charged is $3,000 per offense (as is reflected in the First Appearance sheet in the record), yet the original bond was set at $25,000 or in the alternative SOR, meaning that the judge must have considered other factors. Regardless, it is the state’s burden to show that there was information that was not presented to the judge at first appearance that would support the modification of the initial bond. See Keane v. Cochran, 614 So.2d 1186, 1187 (Fla. 4th DCA 1993). Here, the state failed to meet this burden as it did not prove that the information about Lee’s pri- or record was not made available at the time the original bond was set. See Santos v. Garrison, 691 So.2d 1172, 1172-73 (Fla. 4th DCA 1997) (finding revocation of bond due to defendant’s illegal alien status was not supported where record did not reflect whether his immigration status was known when the bond was initially set).

The petition is granted.

HAZOURI and MAY, JJ., concur.


text:
    Lorenzo JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4919.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Lorenzo Jones, appeals from the order declaring him a sexual predator pursuant to Florida’s Sexual Predator Act. Jones argues that the Act violates his right to procedural due process and violates the separation of powers clause of the Florida Constitution. These arguments have recently been addressed by this court in Reyes v. State, 854 So.2d 816, 2003 WL 22082192 (Fla. 4th DCA Sept.10, 2003), which held that the Act does not violate these constitutional principles. We, therefore, affirm the order of the trial court declaring Jones a sexual predator.

AFFIRMED.

STONE, HAZOURI and MAY, JJ., concur.


text:
    Carl P. HIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3245.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Carl P. Higgins, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse in part the trial court’s summary denial of appellant’s motion and supplemental motion for relief pursuant to Florida Rule of Criminal Procedure 3.850. As to claims numbered 4 and 11, we remand to the trial court to attach portions of the record which conclusively refute appellant’s claims, or to conduct an evidentia-ry hearing. As to appellants’ other claims, we affirm.

REVERSED AND REMANDED IN PART.

POLEN, GROSS and TAYLOR, JJ., concur.


text:
    Michael MARRO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2658.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Michael Marro, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Marro appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. In his motion, Marrow raised two claims. We find one of these claims merits further review and remand accordingly.

Marro was convicted as charged of aggravated battery. Marro’s defense at trial was one of self-defense.

In the second point of his motion, Marro claims that trial counsel was ineffective for failing to object to inadmissible hearsay elicited from the victim about Marro’s propensity for violence. Marro and the victim were co-workers who found themselves in a physical altercation. The two had worked together on a roofing job and the victim contacted the boss after Marro declined to replace some rotten wood that remained on the roof. The victim was asked if he had personal knowledge that Marro had learned of that contact with the boss. The victim stated that he did, and when asked how he knew, the victim offered that he spoke to “Bill.” The victim continued:

Because I spoke to Bill, Bill had called him on the telephone, the defendant, to let him know, you know, hey we had to go back to work and do this. And the defendant became very upset, made two threats. And, you know, screaming and yelling. And you know, Bill’s exact words, I’ll never forget, is that he tried to soften the blow because he knew the defendant was a pretty rowdy guy, pretty violent at times.

The record before this court does not reflect that “Bill” testified at trial. Given Marro’s claim of self-defense, there is a reasonable probability that any suggestion to the jury that he was a violent person frustrated that defense.

We remand for further review of this claim finding that Marro has satisfied, preliminarily, the Strickland inquiry. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The state’s response and record attachments, adopted by the trial court in its summary denial of the 3.850 motion, do not conclusively refute Marro’s claim.

GUNTHER, WARNER and POLEN, JJ., concur.


text:
    Christopher M. BROWN and The Law Offices of Brown & Brown, P.A., Appellants, v. Gregory STRICKLAND, Appellee.
    No. 4D02-4641.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Christopher M. Brown of the Law Offices of Brown & Brown, P.A., Ft. Lauder-dale, pro se.
    Tracy Belinda Newmark of Fixel & La Rocco, Hollywood, for appellee.
   PER CURIAM.

We reverse an order awarding attorney’s fees against counsel for litigating in bad faith because we conclude that counsel’s conduct was not in bad faith. Moakley v. Smallwood, 826 So.2d 221 (Fla.2002). Reversed.

POLEN, KLEIN and STEVENSON, JJ., concur.


author: STEVENSON, J.

text:
    G.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2794.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Andrea D. England, Assistant Attorney General, Fort Lauder-dale, for appellee.
   STEVENSON, J.

G.L., a minor, appeals the revocation of his probation, challenging the sufficiency of the evidence. We find merit in his argument and reverse.

Among other things, the conditions of G.L.’s probation required that he attend school. The affidavit of violation alleged that G.L. had missed six weeks of school and his whereabouts were unknown. The evidence presented at the hearing, however, was clearly insufficient to establish that G.L. had failed to attend school during the time he was on probation. Indeed, the State concedes as much on appeal.

Despite the concession, the State invites this court to affirm because the conditions of G.L.’s probation also required that he cooperate with and maintain contact with his probation officer and the evidence did support a violation of this condition. We must decline the invitation as such a violation was not adequately charged. See Critsley v. State, 846 So.2d 1255 (Fla. 4th DCA 2003); N.L. v. State, 825 So.2d 509 (Fla. 1st DCA 2002).

REVERSED.

POLEN and KLEIN, JJ., concur.


text:
    Ernest Charles MARKEL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3702.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court revoked appellant’s probation because appellant violated his curfew and failed to successfully complete a sex offender treatment program. We find no error as to the curfew; however, appellant had not been given a deadline in which to complete the sex offender program. He had enrolled in, but not completed, three different programs in different locations to which he had moved.

Where an order of probation does not specify a date for completing a program, and the defendant has expressed a willingness to participate, it is an abuse of discretion to find a willful and substantial probation violation. O’Neal v. State, 801 So.2d 280 (Fla. 4th DCA 2001). We therefore reverse the finding as to the program and remand in order for the trial court to determine whether probation should be revoked based solely on the curfew violation.

POLEN, KLEIN and STEVENSON, JJ., concur.


text:
    E.A., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellees.
    No. 3D03-62.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Herscher & Herscher and llene Herscher, Coral Gables, for appellant.
    Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein, Douglas H. Stein and Calianne P. Lantz, Miami, for appellee.
    Before GERSTEN, GODERICH, and SHEVIN, JJ.
   PER CURIAM.

We affirm the termination of the father’s parental rights where the basis for such termination was proven by clear and convincing evidence. § 39.809(1), Fla. Stat. (2002); Myles v. Department of Health & Rehabilitative Servs., 590 So.2d 1058, 1054 (Fla. 3d DCA 1991).

Affirmed.


text:
    Barbaro GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3108.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Roberts v. State, 593 So.2d 323 (Fla. 3d DCA 1992); Jones v. State, 477 So.2d 26 (Fla. 3d DCA 1985)(defendant not entitled to hearing regarding State’s alleged failure to disclose information where State supplied defendant with all information in its possession).


author: FLETCHER, Judge.

text:
    Jerome MULLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-78.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.

      Before GODERICH, GREEN, and FLETCHER, JJ.
   FLETCHER, Judge.

Jerome Mullins was charged with one count of possession of a forged bill in violation of section 881.11, Florida Statutes (2002). This section reads:

“Whoever brings into this state or has in his or her possession a false, forged, or counterfeit bill, check, draft, or note in the similitude of the bills or notes payable to the bearer thereof or to the order of any person issued by or for any bank or banking company established in this state, or within the United States, or any foreign province, state or government, with intent to utter and pass the same or to render the same current as true, knowing the same to be false, forged, or counterfeit, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.”

At trial, the state presented the bills in question and the jury determined that the bills met the statutory definition of “false, forged, or counterfeit.” However, there is no record evidence of Mullins’ intent to pass the false bills. The record shows only that Mullins made no admission that he intended to pass the bills, and that the state’s witness (the arresting officer) was unable to testify as to Mullins’ intent. Because there is nothing in the record to support the element of intent necessary for violation of section 831.11, Mullins’ motion for judgment of acquittal should have been granted. See, e.g., Butler v. State, 715 So.2d 339 (Fla. 4th DCA 1998)(in order to present a prima facie case the state must prove each and every element of the offense beyond a reasonable doubt; when the state fails to meet this burden the case should not be submitted to the jury, and a judgment of acquittal should be granted). We therefore reverse, with directions that Mullins’ conviction and sentence in case number 01-35375 be vacated.

Reversed and remanded.

      . A second count against Mullins was nol prossed.

      . The evidence consisted of the four bills which were in Mullins’ possession at the time of his arrest: a legitimate one-dollar bill, a legitimate one-hundred dollar bill, a printer-copied, plastic laminated, one-sided one-hundred dollar bill (with the same serial number as the legitimate bill), and a printer-copied one-sided one dollar note with a color bar chart on the opposite side.


text:
    JEWISH HOME AND AGING SERVICES, Appellant, v. Paul BREITNER and Wayne A. Cypen, as Co-Personal Representatives of the Estate of Josephine Wolf, Appellees.
    Nos. 3D02-3178, 3D03-305.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Hall, David and Joseph, Andrew C. Hall and Adam S. Hall, Miami, for appellant.
    Bales & Sommers; Podhurst Orseck and Joel D. Eaton, Miami, for appellees.

      Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   PER CURIAM.

The petitioner below, Jewish Home and Aging Services [Jewish Home], appeals from an adverse final judgment. We find that the trial court properly entered an involuntary dismissal of Jewish Home’s petition for compulsory payment. Jewish Home failed to meet its burden of showing that the fiduciary, who was charged with approving the bequests as described in the will, acted arbitrarily or capriciously when he withheld approval of the bequest to Jewish Home. See Canakaris v. Canakaris, 882 So.2d 1197, 1208 (Fla.1980).

Accordingly, we affirm.


text:
    Oliver RUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-207.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before SCHWARTZ, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

We affirm based on the authority of Rule 3.701, Florida Rules of Criminal Procedure; Montgomery v. State, 821 So.2d 464 (Fla. 4th DCA 2002), review granted, 837 So.2d 410 (Fla.2003); and Hill v. State, 805 So.2d 61 (Fla. 3d DCA), review dismissed, 817 So.2d 847 (Fla.2002). We certify conflict with Negron v. State, 799 So.2d 1126 (Fla. 5th DCA 2001); State v. Freeman, 775 So.2d 344 (Fla. 2d DCA 2000), review denied, 790 So.2d 1108 (Fla.2001); and Batchelor v. State, 729 So.2d 956 (Fla. 1st DCA 1999).

Affirmed; conflict certified.


text:
    Tiesha DIXON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3271.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Tiesha Dixon, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.

      Before GERSTEN, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

We affirm the revocation of probation without prejudice to defendant pursuing administrative remedies regarding the alleged discrepancy in her sentence, as represented by defendant in her brief.


author: WELLS, Judge.

text:
    Fitzgerald Livingston WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2124.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Fitzgerald Livingston White, in proper person.
    Charles J. Crist, Jr., Attorney General, and Mark Rosenblatt, Assistant Attorney General, (FtLauderdale), for appellee.
    Before LEVY, SHEVIN, and WELLS, JJ.
   WELLS, Judge.

Defendant appeals from an order dismissing his Rule 3.850 motion for lack of jurisdiction. We reverse and remand for consideration of this motion.

On January 13, 2002, Defendant filed a Rule 3.850 motion in the court below claiming ineffective assistance of trial counsel. See Fla. R.Crim. P. 3.850. Approximately a month later, Defendant filed a petition for writ of habeas corpus in this court claiming ineffective assistance of appellate counsel. Believing that it was without jurisdiction to entertain the Rule 3.850 motion while the habeas corpus petition was pending, the trial court dismissed the Rule 3.850 motion for lack of jurisdiction. As the State correctly concedes, the motion should not have been dismissed because the two claims are separate and distinct and thus may proceed simultaneously:

In Knight v. State, 394 So.2d 997 (Fla.1981), we recognized that allegations of ineffectiveness of appellate counsel are not cognizable under a Rule 3.850 motion because they do not relate to anything done by or transpiring before the trial court. Such allegations, we held, should be addressed to the appellate court by means of a petition for habeas corpus. On the other hand, allegations of ineffectiveness of legal counsel at one’s trial are properly presented to the trial court by a Rule 3.850 motion. Smith v. State, 400 So.2d 956 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980). Since the two judicial attacks on petitioner’s convictions and sentences ... were thus separate and distinct, there was no danger ... of conflicting and confusing rulings by different courts on the same issues.... We do not perceive so substantial a problem of confusion as to require us to hold that the pendency of one kind of proceeding deprives the other court of jurisdiction to proceed.

Francois v. Klein, 431 So.2d 165, 166 (Fla.1983); See Gawronski v. State, 801 So.2d 211 (Fla. 2d DCA 2001).

Moreover, the habeas corpus petition has now been denied. We therefore reverse and remand for the trial court to consider the merits of the Defendant’s 3.850 motion.


text:
    Willie James ROSIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-903.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

The sole issue raised on this appeal from a felony battery conviction is whether the prosecutor made improper comments which were not objected to, but which constitute fundamental error. We affirm the conviction, concluding that the comments were not improper, let alone fundamental error.

We often affirm cases involving this type of issue without opinion, because we conclude that an opinion would not be of any significant assistance to the bench or bar. Whipple v. State, 431 So.2d 1011 (Fla. 2d DCA 1983). Where the defendant raises an issue which was not preserved, however, and we decide there was no error, a useful purpose can be served by issuing an opinion explaining that no error was demonstrated.

When defense counsel raises an error on direct appeal which has not been preserved, as in this case, and the case is affirmed without opinion, the defendant may assert in a rule 3.850 motion that his trial counsel was ineffective for failing to preserve the error. When we explain on the direct appeal that there was no error, it could relieve the trial court from having to conduct an evidentiary hearing on a rule 3.850 motion alleging counsel was ineffective for failing to preserve the error. See Chandler v. State, 848 So.2d 1031 (Fla.2003).

Although we affirm the conviction we remand for the trial court to enter a written order of probation in conformance with the court’s oral pronouncement.

GUNTHER and GROSS, JJ., concur.


text:
    Terrance AIKENS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-437.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Bennett H. Brummer, Public Defender, and Roy Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before LEVY, FLETCHER, and WELLS, JJ.
   WELLS, Judge.

Terrance Aikens appeals from the sentence imposed in this case, as corrected, on October 17, 2002, claiming that he had the right to be, but was not, present at the sentencing hearing. The State properly concedes the issue. See, e.g., Smith v. State, 754 So.2d 114 (Fla. 3d DCA 2000).

The sentence imposed in this matter is, therefore, vacated, and this matter is remanded for the purpose of imposing a guidelines sentence following a sentencing hearing at which both Aikens and his counsel are in attendance. See Aikens v. State, 822 So.2d 562 (Fla. 3d DCA 2002) (reversing Aikens’ departure sentence and remanding for imposition of a guidelines sentence).


text:
    STEWART AGENCY, INC., d/b/a Stewart Toyota of North Palm Beach and Stewart Toyota of North Palm Beach, Appellants, v. Elizabeth ROBINSON, Appellee.
    No. 4D02-4580.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Rehearing Denied Oct. 15, 2003.
    Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, and Mark J. Dear-man of Dearman & Gerson, Plantation, for appellants.
    Raymond G. Ingalsbe, Palm Beach Gardens, for appellee.
   ON MOTION FOR REHEARING

WARNER, J.

We deny the motion for rehearing but withdraw our prior opinion and substitute the following in its place.

Stewart Agency, Inc. appeals the trial court’s order denying its motion to compel arbitration. The court determined the arbitration clause was both procedurally and substantively unconscionable. Because both must be present to invalidate an arbitration clause, and we conclude that the clause is not substantively unconscionable, we reverse.

Appellee, Elizabeth Robinson, filed suit against the Stewart Agency alleging fraud, negligent misrepresentation, and violations of Florida’s Deceptive and Unfair Trade Practice Act (“FDUTPA”) and Motor Vehicle Retail Sales Finance Act. Stewart moved to compel arbitration based upon the vehicle sales contract which provided as follows:

Any and all controversies or claims concerning the transaction which is the subject of this Vehicle Buyer’s Order including, but not limited to fraud in the inducement, breach of contract, Unfair Deceptive Trade Practices, violations of the Federal Consumer Credit Protection Act (Truth in Lending Act) and all claims or disputes of whatever nature arising under or from this Vehicle Buyer’s Order or this transaction.... Any such controversy or claim shall be submitted to and settled by arbitration by the American Arbitration Association in southeast Florida in accordance with the commercial rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

This clause was at the bottom of the sales contract directly above Robinson’s signature.

The court conducted an evidentiary hearing at which Robinson admitted she has an associate’s degree in business and is employed by the Florida Department of Health. Despite her education in business, she testified that she was unschooled in automobile sales and finance and that while she did not read the clause, she probably would not have understood its import. At the hearing, her attorney submitted a copy of the American Arbitration Association (“AAA”) Commercial Dispute Resolution Procedures to demonstrate the cost of arbitration would be in the thousands of dollars, making the arbitration clause unconscionable.

The court entered an order denying the motion to compel arbitration. It detailed at length Robinson’s problems with the vehicles she obtained from Stewart. As to the claim of substantive unconscionability, the court found the arbitration clause substantively unconscionable because arbitration limited the remedies available to Robinson under the FDUTPA, particularly declaratory and injunctive relief. As to procedural unconscionability, the court determined that Robinson was “academically handicapped” and was an unschooled layperson. The arbitration clause was embedded in fine print in the contract and did not disclose the expenses of arbitration, which could be as high as $13,000, according to the AAA brochure.

In order to invalidate an arbitration clause as unconscionable, the court must find that the clause is both procedurally and substantively unconscionable. See Chapman v. King Motor Co. of S. Fla., 838 So.2d 820, 821 (Fla. 4th DCA 2002). Procedural unconscionability relates to the manner in which the contract was entered and involves such issues as “the relative bargaining power of the parties and their ability to know and understand the disputed contract terms.” Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). Substantive unconscionability focuses on the actual agreement and whether the terms are unreasonable and unfair. See id.; see also Kohl v. Bay Colony Club Condo., Inc., 398 So.2d 865, 868 (Fla. 4th DCA 1981). A trial court’s decision regarding the validity of an arbitration clause is a matter of contract interpretation subject to de novo review. See Chapman, 833 So.2d at 821.

While we question whether a person with an associate’s degree in business could ever be characterized as “academically handicapped,” we need not determine whether the factors here showed procedural unconscionability because we conclude that the contract was not substantively unconscionable. The court determined that arbitration was unfair because declaratory and equitable relief were unavailable and, therefore, Robinson was not entitled to all of her statutory remedies under the FDUTPA. However, we have held that claims under FDUTPA are subject to arbitration. See Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617, 622 (Fla. 4th DCA 2001); see also Value Car Sales, Inc. v. Bouton, 608 So.2d 860, 861 (Fla. 5th DCA 1992).

Secondly, unlike the clause in Powertel which limited the consumer to actual damages and precluded class action litigation, 743 So.2d at 576, the clause in this case does not limit the relief available through arbitration. Therefore, the arbitrators are free to enter an award having an injunctive or declaratory component to it. See generally Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (acknowledging arbitrators have power to fashion equitable remedy).

Finally, we conclude that the cost of arbitration is actually a matter of substantive, not procedural, unconscionability, see Ting v. AT & T, 182 F.Supp.2d 902, 903 (N.D.Cal.2002), rev’d in part by, 319 F.3d 1126 (9th Cir.2003), although some courts have considered this a separate defense from unconscionability. See, e.g., Mendez v. Palm Harbor Homes, Inc., 111 Wash.App. 446, 45 P.3d 594 (2002). Nevertheless, the record before this court does not contain evidence that arbitration would have been prohibitively expensive for Robinson. The arbitration clause is silent as to who must pay the fees, and the court’s determination is merely an estimate of the fees.

In Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), the Supreme Court held that “where ... a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.” Green has been interpreted as requiring the party seeking to avoid the arbitration agreement on the ground that it may involve some cost shifting to establish that the agreement would preclude him from effectively vindicating his rights by showing the likelihood, not the possibility, of incurring such costs. See Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255, 1259-60 (11th Cir.2003). The estimate of fees as high as $13,000 was speculative, and appellant noted that a filing fee of only $500 was probable with an advance cost of $1,000 for one arbitrator. The very portions of the rules of arbitration attached to the court’s order note that the AAA may, in the event of hardship, defer or reduce administrative fees. There is nothing to show that the expense of arbitration is greater than the expense of litigating the issues or would prevent the appellee from vindicating her statutory rights. Therefore, the record is insufficient to support this as a basis for substantive unconscionability.

Having determined the arbitration clause is not substantively unconscionable, we reverse the trial court’s order and direct an order be entered compelling arbitration.

Reversed.

SHAHOOD and TAYLOR, JJ., concur.


text:
    Uri BLOCH, Appellant, v. Teri GEVINSON, P.A., f/k/a Boca Best Realty, Inc., and Teri Gevinson, individually, Appellees.
    No. 4D02-340.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.
    Dena R. Taub of Taub & Taub, P.A., Boca Raton, for appellant.
    Ronald M. Gaché and Jeremy E. Slush-er of Broad and Cassel, West Palm Beach, for appellees.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant appellant’s motion for clarification, withdraw our prior opinion, and issue the following in its place.

A residence titled in the name of Hayley Bloch and Saul and Marion Steinberg was sold by real estate agent Teri Gevinson. Uri Bloch, Hayley Bloch’s husband, filed suit against the Steinbergs, Gevinson and her professional association, and Attorney Stephen Zimmerman. With respect to Gevinson and her professional association, Bloch alleged breach of fiduciary duty (count XII), breach of duty of loyalty (count XIV), and professional negligence (count XVII). The trial court entered final summary judgment in favor of defendants Teri Gevinson and Teri Gevinson, P.A.

We reverse the final summary judgment on appeal as to the breach of fiduciary duty count (XII) and the breach of loyalty count (XIV) as we find that there exist genuine issues of material fact concerning whether a fiduciary relationship had been established between Bloch and Gevinson, whether Bloch had a homestead interest in the subject home, and whether Gevinson made statements and committed acts which would have violated a position of trust, if indeed one existed between her and Bloch. See, e.g., Fleet Fin. & Mortgage, Inc. v. Carey, 707 So.2d 949, 950 (Fla. 4th DCA 1998)(recognizing that “if the slightest doubt exists about the presence of an issue of fact, then summary judgment cannot be granted”)(citing Fine Arts Museums Found. v. First Nat’l in Palm Beach, 633 So.2d 1179 (Fla. 4th DCA 1994)). We affirm as to the remaining count (count XVII).

AFFIRMED in part, REVERSED in part and REMANDED.

STEVENSON, MAY, JJ., and CHAVIES, MICHAEL B., Associate Judge, concur.


author: L CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Kathy BUSH.
    No. 2003-KK-2409.
    Supreme Court of Louisiana.
    Aug. 25, 2003.
   In re State of Louisiana; —Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, Nos.425-370; to the Court of Appeal, Fourth Circuit, No. 2003-K-1496.

Writ denied.

CALOGERO, C.J., dissents from denial of the writ and the stay and would grant, and assigns reasons.

KIMBALL, J., would grant the writ.

L CALOGERO, Chief Justice,

dissents from the action of the court denying the stay and denying the writ, and assigns reasons.

The district court’s denial of defendant’s request for trial by judge was based on defendant’s failure to make her waiver of her right to a jury within fifteen days of her arraignment as required by La. C. Cr. P. arts. 521 and 780. However, Article 780(B) clearly gives the district court the discretion to permit the defendant to waive trial by jury so long as the request is made prior to commencement of trial. In my view, the district court abused its discretion in denying the defendant’s motion in this case.

First, the district court’s reliance on State v. Davis, 485 So.2d 981 (La.App. 4 Cir.1986), writ denied, 488 So.2d 1019 (La.1986), which stated that there is “clearly no constitutional right not to be tried by a jury, except in a very unusual case where a fair jury trial is impossible or unlikely,” was misplaced in this matter, because Article 780 gives the district court the discretion to permit the defendant to waive her right to a jury trial any time prior to the commencement of trial. In the present case, the defendant made her request for a trial by the court before the jury venire was even presented, and, unlike in Davis, the defendant herself elected a trial by the court on the record. Furthermore, there was no opposition from the District Attorney to the defendant’s request for a trial by the court; indeed, the District Attorney objected to pthe district court’s denial of the defendant’s request. Additionally, it is the District Attorney that seeks this writ application and is essentially joining the defendant in making her request for a trial by the court. Accordingly, I perceive no reasonable basis for the district court to have denied the defendant’s request to waive her right to a trial by jury.


text:
    STATE of Louisiana v. Jeffrey E. ARMSTRONG.
    No. 2002-KP-2464.
    Supreme Court of Louisiana.
    Sept. 5, 2003.
   PER CURIAM.

Granted in part; otherwise denied. This case is remanded to the district court for purposes of conducting an evidentiary hearing and ruling on relator’s claim that counsel rendered ineffective assistance by failing to request that the trial court include criminal trespass as a responsive verdict. See State v. Simmons, 01-0293, pp. 6-7 (La.5/14/02), 817 So.2d 16, 21 (criminal trespass is a lesser and included offense of unauthorized entry of an inhabited dwelling, entitling defendant charged with the latter offense to instruction on the former, particularly when defendant would have escaped sentencing as multiple offender had he been convicted of a misdemeanor); State v. Hernandez, 02-0340 (La.App. 5th Cir.7/30/02), 824 So.2d 529 (same). In all other respects, the application is denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

CALOGERO, J, recused.

VICTORY and TRAYLOR, JJ., would deny the writ.


text:
    STATE ex rel Roshaun A. MILES v. STATE of Louisiana.
    No. 2002-KH-1843.
    Supreme Court of Louisiana.
    Sept. 5, 2003.
   PER CURIAM.

Granted. The district court is ordered to appoint counsel for relator and to hold a hearing at which it will determine whether misinformation with regard to relator’s eligibility for diminution of sentence pursuant to La.R.S. 15:571.3 (“good time”) constituted a material inducement for his guilty plea to armed robbery which precluded relator from entering a knowing and voluntary guilty plea “with eyes open,” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), and entitles him to withdraw that plea. See State ex rel. Aleman v. State, 99-0488 (La.10/1/99), 745 So.2d 602.

TRAYLOR, J., would deny the writ.


text:
    STATE of Louisiana v. Gerald DIAZ.
    No. 2002-KP-2460.
    Supreme Court of Louisiana.
    Sept. 5, 2003.
   PER CURIAM.

Denied. Although the district court erred by granting the state’s motion to reconsider its ruling granting relator’s application for post-conviction relief, see La. C.Cr.P. art. 930.6; State v. Ford, 96-2919 (La.5/30/97), 694 So.2d 917; State v. Clayton, 96-1658 (La.2/27/97), 687 So.2d 996; State ex rel. Lewis v. Cr.D.C., 571 So.2d 659 (La.1990), relator’s underlying claim concerning the district court’s failure to determine his competence to proceed after the state and the defense filed a joint motion for a mental status examination is time-barred by La.C.Cr.P. art. 930.8 and State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

JOHNSON, J., wold grant the writ.


text:
    In re CONFIDENTIAL PARTY.
    No. 2003-B-1891.
    Supreme Court of Louisiana.
    Sept. 16, 2003.
   ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for the institution of formal charges.

FOR THE COURT:

/s/ John L. Weimer

JUSTICE, SUPREME COURT OF LOUISIANA


author: hPER CURIAM.

text:
    In re John P. DEOKARAN.
    No. 2003-B-1545.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, John P. Deokaran, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime for purposes of Supreme Court Rule XIX, § 19. For his misconduct, respondent proposed that he be permanently disbarred from the practice of law. The Office of Disciplinary Counsel (“ODC”) concurred in respondent’s petition, and the disciplinary board recommended the proposed discipline be accepted.

UNDERLYING FACTS

From May 1984 until September 1999, respondent was employed by Allstate Insurance Company as a “frontline performance expert.” In this capacity, respondent was authorized to issue checks on Allstate’s behalf in settlement of claims made against homeowner’s insurance policies held by Allstate’s policyholders. Between September 1996 and August 1999, respondent issued 40 settlement checks totaling $564,862.29 to C.S., Inc., C.S. Plumbing & Repair, Inc., or C.S. Pipe & Drain, Inc., each of which were fictitious companies that respondent fabricated in order to defraud Allstate. Moreover, the address to which the settlement checks were sent corresponded to a post office box rented by respondent.

|2On November 8, 2001, a Tangipahoa Parish grand jury returned an indictment charging respondent with eight counts of money laundering, each a felony, in violation of La. R.S. 14:230(B)(5). On August 20, 2002, respondent pleaded guilty to one count of money laundering and was sentenced to serve five years in prison, suspended, and placed on five years probation with the special condition that he make full restitution of $434,862.29.

DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

Prior to the institution of formal charges, respondent filed a petition for consent discipline, admitting he was convicted of a serious crime pursuant to Supreme Court Rule XIX, § 19. Furthermore, petitioner admitted his conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Louisiana Rules of Professional Conduct. For his misconduct, respondent proposed that he be permanently disbarred. The ODC concurred in respondent’s petition.

| ^Disciplinary Board Recommendation

The disciplinary board found that respondent knowingly and intentionally violated duties owed to the public, the legal system, and the profession. Respondent’s actions caused serious injury to Allstate and adversely affected the public’s perception of the legal profession, resulting in actual injury to the profession. The board concluded the baseline sanction for this misconduct is disbarment.

Based upon its review of the record, the board determined the following aggravating factors are present: dishonest or selfish motive, pattern of misconduct, and multiple offenses. The mitigating factors present include absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the disciplinary proceedings, inexperience in the practice of law, and imposition of other penalties or sanctions. The board noted that respondent’s conduct meets Guideline 6 of the permanent disbarment guidelines set forth in Appendix E to the Rules of Lawyer Disciplinary Enforcement, and concluded that permanent disbarment is warranted for the multiple instances of insurance fraud engaged in by respondent. Accordingly, the board recommended the petition for consent discipline be accepted.

DISCUSSION

Although this matter arises from a petition for consent discipline, Supreme Court Rule XIX, § 20(B) provides that the extent of discipline to be imposed is subject to review. 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).

The parties submit respondent’s conduct in this case warrants permanent disbarment. The guidelines for permanent disbarment are set forth in Appendix E to Supreme Court Rule XIX. As the preamble to this appendix explains, the guidelines were not intended to bind this court in its decisionmaking, but to provide “useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.”

Guideline 6 of Appendix E provides that permanent disbarment may be warranted when an attorney engages in insurance fraud. That guideline is unquestionably applicable here, as respondent has admitted he knowingly and intentionally engaged in fraudulent and deceitful conduct that deprived his former employer, Allstate Insurance Company, of more than $500,000.

Accordingly, we will accept the petition for consent discipline. Pursuant to that petition, we will permanently disbar respondent from the practice of law in Louisiana.

DECREE

Upon review of the petition for consent discipline, the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that the name of John P. Deokaran, Louisiana Bar Roll number 26261, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the |Rpractice of law in this state. 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.

      . In re: Deokaran, 02-2257 (La.9/18/02), 829 So.2d 1009.

      . The crime of money laundering is defined in pertinent part as follows:
      (B) It is unlawful for any person knowingly to do any of the following:
      (5) Acquire or maintain an interest in, receive, conceal, possess, transfer, or transport the proceeds of criminal activity.

      .Respondent turned over to Allstate the sum of $130,000 at the time he entered his guilty plea, leaving a total balance of restitution of $434,862.29.

      . Guideline 6 provides that "Insurance fraud, including but not limited to staged accidents or widespread runner-based solicitation,” is a ground for permanent disbarment.


author: LPER CURIAM.

text:
    In re John T. HOLMES.
    No. 2003-B-1959.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, John T. Holmes, an attorney licensed to practice law in the State of Louisiana, who is currently on suspension.

PRIOR DISCIPLINARY HISTORY

Prior to addressing the instant misconduct, we find it helpful to review respondent’s disciplinary history. Respondent was admitted to the practice of law in 1974. In July 1998, this court placed respondent on interim suspension pending an investigation into allegations of conversion of funds which occurred between 1992 and 1993. In re: Holmes, 98-1892 (La.7/17/98), 717 So.2d 1126. Thereafter, this court suspended respondent from the practice of law for a period of eighteen months based on this misconduct. In re: Holmes, 98-3008 (La.1/8/99), 729 So.2d 1018 (Holmes I). Although respondent is eligible to seek reinstatement from this suspension, he has not done so.

Respondent was also admonished by the disciplinary board in 1999 for failing to communicate with a client and failing to cooperate in a disciplinary investigation, violation of Rules 1.4 and 1.16(d), respectively.

| .UNDERLYING FACTS

In March 1991, Ursula Holmes and Ralph Holmes retained respondent to represent them in a personal injury matter. In January 1992, respondent filed a petition for damages on behalf of his clients. Subsequently, respondent neglected to communicate with his clients for a period of several years.

No further action took place in the case until November 1999, when it was dismissed as abandoned by the trial court due to respondent’s failure to take any action in the prosecution of the ease for over six years. Respondent neglected to advise his clients of his inaction and the dismissal of their case. Additionally, he failed to advise them of his suspension from the practice of law in Holmes I.

DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

After investigating the matter, the Office of Disciplinary Counsel (“ODC”) instituted formal charges against respondent alleging numerous professional violations. Prior to a formal hearing on those charges, respondent filed a petition for consent discipline with the disciplinary board conceding he knowingly breached duties to his clients and the profession by violating the Rules of Professional Conduct. Specifically, respondent admitted to failing to competently represent his clients in violation of Rule 1.1(a), failing to exercise due diligence in the handling of his clients’ case in violation of Rule 1.3, failing to properly communicate with his clients in violation of Rules 1.4(a) and 1.4(b), and failing to expedite his clients’ litigation in violation of Rule 3.2.

^Respondent acknowledged that two aggravating factors existed: his prior disciplinary record and substantial experience in the practice of law. In mitigation, respondent cited his absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and cooperative attitude toward proceedings, and remorse. Relying on the ABA’s Standards for Imposing Lawyer Sanctions and jurisprudence from this court, respondent proposed that he be suspended from the practice of law for a period of one year and one day, with all but six months deferred, followed by an eighteen month period of supervised probation with conditions.

The ODC concurred in the petition for consent discipline, and submitted a memorandum in support. Subsequently, a joint stipulation of facts was prepared and submitted by respondent and the ODC.

Disciplinary Board Recommendation

Based on respondent’s admission of misconduct, the board determined respondent violated duties owed to his clients by failing to pursue their case. It found |4his failure to advise them of the abandonment of the suit resulted in their frustration and the further delay in the resolution of the matter. The board also found respondent allowed his clients’ case to stagnate on the court’s docket from 1993 to 1999, causing damage to the court system. It asserted respondent knew or should have known that he had failed to take action in the pending lawsuit and that it would be the subject of dismissal.

Relying on jurisprudence from this court, the ABA’s Standards for Imposing Lawyer Sanctions, and the aggravating and mitigating factors cited in the consent petition, the board recommended the consent discipline be adopted.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation.

DISCUSSION

Although this matter arises from a petition for consent discipline, Supreme Court Rule XIX, § 20(B) provides that the extent of discipline to be imposed is subject to review. 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, 518 So.2d 1178 (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).

The record reveals respondent neglected and failed to expedite his clients’ legal matter, resulting in their suit being dismissed on abandonment grounds. His actions caused actual injury to his clients. The baseline sanction for such misconduct is a lengthy suspension. See, e.g., In re: Elbert, 97-1303 (La.9/5/97), 698 So.2d 949 (one year suspension with six months deferred, subject to a two year conditional probation, imposed on an attorney for incompetently handling a client matter and attempting to settle his liability with the client without advising the client to seek advice of outside counsel); In re: LeBlanc, 97-1056 (La.9/19/97), 699 So.2d 378 (eighteen month suspension imposed on an attorney who permitted a client’s case to be dismissed with prejudice based on the attorney’s incompetence and misrepresented facts to the client regarding the status of the case).

Although the proposed consent discipline of a one year and one day suspension with all but six months deferred is somewhat lenient in light of this jurisprudence, we observe that the misconduct in this case occurred during the same general time frame as the conduct in Holmes I. When a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously. In re: Vaughan, 01-1948 (La.10/26/01), 801 So.2d 1058; Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991). The proposed consent discipline, when considered together with Holmes I and in light of the mitigating factors, represents an appropriate sanction for respondent’s misconduct.

Accordingly, we will accept the petition for consent discipline and impose a one year and one day suspension, with all but six months deferred, subject to an eighteen month period of probation with the proposed conditions.

UDECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that John T. Holmes, Louisiana Bar Roll No. 6969, be suspended from the practice of law for a period of one year and one day. It is further ordered that all but six months of the suspension shall be deferred and respondent shall be placed on supervised probation for a period of eighteen months, subject to the conditions set forth in the petition for consent discipline. Any violation of the conditions of probation or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension ex-ecutory, or imposing additional discipline, as appropriate. 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.

TRAYLOR, J., would reject.

      . Although the clients have the same last name as respondent, there is nothing in the record to indicate they are related to respondent.

      .Respondent relied on the following ABA Standards: Standard 4.42 provides suspension is generally appropriate when a lawyer fails to perform services for a client or engages in a pattern of neglect and causes injury or potential injury to a client; Standard 4.52 provides suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury; and Standard 7.2 provides suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . Respondent cited In re: Dunn, 98-0535 (La.6/5/98), 713 So.2d 461; In re: Thompson, 98-0079 (La.5/8/98), 712 So.2d 72.

      . Respondent proposed the following probationary conditions:
      a. A practice monitor shall be appointed to monitor all active civil files, effective upon respondent’s reinstatement to the practice of law;
      b. Respondent shall complete the Louisiana State Bar Association’s Ethics School upon respondent's reinstatement to the practice of law; and
      c. Respondent shall not engage in any future misconduct and shall provide full cooperation to the ODC stemming from any future disciplinary complaints.


author: I .PER CURIAM.

text:
    STATE of Louisiana v. Lawrence MATTHEWS.
    No. 2002-K-1121.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   I .PER CURIAM.

Granted. This case is remanded to the court of appeal for reconsideration.

For purposes of implementing this Court’s rule in State v. Smith, 475 So.2d 331 (La.1985), which held that while La.R.S. 14:72 authorizes dual prosecution of a defendant for the false making and the issuing of the same instrument it does not authorize cumulative convictions and punishment for falsifying and transferring the same check, it did not matter which count the trial court set aside when it granted the defendant’s motion for a post-verdict judgment of acquittal and vacated the jury’s verdict on the count charging defendant with issuing the forged check. However, in applying Louisiana’s longstanding fictitious payee rule, and in implementing the due process rule of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), governing review of the sufficiency of the evidence, the court of appeal correctly concluded that the evidence at trial did not support the defendant’s conviction for forgery based on the remaining count of false making, although the evidence established that he had endorsed the forged check on the back with an alias or the name of a fictitious person. State v. Matthews, 01-0868, pp. 4-5 (La.App. 4th Cir.3/20/00), 814 So.2d 619, 621-22; see State v. Melson, 161 La. 423, 108 So. 794, 795 (1926)(“[I]t is the essence of forgery, or uttering, that the writing (made, altered or uttered) ‘purports to be the act of another person’ than the one charged with the offense .... therefore one cannot be guilty of forgery or uttering, who makes or issues a writing as his own, even if in so doing he uses a fictitious name and his intent be to defraud.”); State v. Harrison, 505 So.2d 783, 792 (La.App. 2nd Cir.1987)(“The mere use of a false or fictitious name may constitute false pretenses, but so long as the writing purports to be the act of the person issuing it and of no other, there is no forgery.”) (citations omitted).

However, the court of appeal erred in further concluding that the evidence was therefore insufficient to support the defendant’s conviction for forgery because the trial court had previously set aside the jury’s verdict on the issuing count. The court of appeal should have considered whether the evidence at trial supported the jury’s verdict on the issuing count and therefore supported, as a. matter of due process, the defendant’s single conviction for forgery and single sentence of 10 years imprisonment at hard labor. See State ex rel. Nicholas v. State, 520 So.2d 377, 382 (La.1988)(When the lower court has inadvertently set aside the wrong count in a dual prosecution for the forgery of a single instrument to implement Smith, an appellate court may nevertheless consider the evidence on that count “in order to sustain the judgment of forgery conviction against total defeat under Jackson v. Virginia [].”)

This case is therefore remanded to the court of appeal for purposes of determining whether the evidence supported the jury’s verdict on the issuing count and therefore supports the judgment of the trial court that the defendant has been properly convicted of a single offense of forgery.

JOHNSON, J., would deny the writ.


text:
    STATE of Louisiana v. Aaron STOGNER.
    No. 2003-OK-2817.
    Supreme Court of Louisiana.
    Oct. 13, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 99-K-4348 D; to the Court of Appeal, Third Circuit, No. KA 03-1272.

Writ granted. Because it appears that defendant’s Motion to View Pre-Sentence Investigation Report and Proffered Exhibit # 1 was granted by order of a single judge of the court of appeal, it is ordered that the action be vacated and this matter remanded to the court of appeal for consideration of the motion by a three judge panel, after providing the parties with an appropriate opportunity to brief the issue. State v. Will, 02-2363 (La.9/13/02), 824 So.2d 1192; Gootee Const. Inc. v. Amwest Sur. Ins. Co., 2000-2341 (La.11/13/00), 775 So.2d 1044. Briefing on the merits of the appeal is stayed pending the court of appeal’s resolution of the defendant’s motion.

JOHNSON, J., would deny the writ.


text:
    STATE ex rel. Arthur K. JONES v. STATE of Louisiana.
    No. 2003-KH-2709.
    Supreme Court of Louisiana.
    Oct. 15, 2003.
   In re Jones, Arthur; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 92-3760; to the Court of Appeal, Fifth Circuit, No. 03-KH-1004.

Writ granted in part; otherwise denied; case remanded. If it has not done so already, the district court shall immediately direct the court reporter to provide relator with the documents the court ordered provided in August, 2003. The district court is further directed to provide this Court with proof that the court reporter has furnished relator the specified document.


text:
    Donna Hicks ANDRUS v. Robert A. ANDRUS.
    No. 2003-CC-2848.
    Supreme Court of Louisiana.
    Oct. 15, 2003.
   In re Andrus, Donna Hicks; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 94-16348; to the Court of Appeal, Fourth Circuit, No. 2003-C-1783.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Jennifer L. MILLS.
    No. 2003-KK-2816.
    Supreme Court of Louisiana.
    Oct. 15, 2003.
   In re Mills, Jennifer L.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, First Parish Court for the Parish of Jefferson, No. F1415370; to the Court of Appeal, Fifth Circuit, No. 03-KH-1078.

Denied.


text:
    STATE of Louisiana v. Jason REEVES.
    No. 2003-KK-2820.
    Supreme Court of Louisiana.
    Oct. 15, 2003.
   In re Reeves, Jason; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, Nos. 20179-01, 20180-01; to the Court of Appeal, Third Circuit’ No' W 03"01346-

Denied.


text:
    STATE of Louisiana v. Charles E. MORRIS, Glenivan Cottle, and Donell Badgett, Jr.
    No. 2003-K-2853.
    Supreme Court of Louisiana.
    Oct. 15, 2003.
   In re Cottle, Glenivan; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. A, No. 00-206111; to the Court of Appeal, Third Circuit, No. 03-0269.

Denied. The result is correct.

CALOGERO, C.J., recused.


text:
    Donald REESE and Verna Nabonne on Behalf of Her Minor Child, James J. Nabonne v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and Louisiana Penitentiary.
    No. 2003-C-1615.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Reese, Donald; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 482,730; to the Court of Appeal, First Circuit, No. 2002 CA 1429.

Granted.


text:
    James A. MARTIN v. Joe A. MORGAN, M.D., Crawford & Co., Strategic Case Management, L.L.C., Turner Industries Ltd., ABC Insurance Co., DEF Insurance Co. & GHI Insurance Co.
    No. 2003-C-1715.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Martin, James; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 478,503; to the Court of Appeal, First Circuit, No. 2002 CA 1596.

Granted.


text:
    Roy W. HALL and Helen Hall v. The FOLGER COFFEE COMPANY and XYZ Insurance Company. The Folger Coffee Company v. Roy W. Hall and Helen Hall.
    No. 2003-C-1734.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Folger Coffee Company; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, Nos. 95-15166, 96-18775; to the Court of Appeal, Fourth Circuit, No(s). 2002-CA-0920, 2002-CA-0921.

Granted.


text:
    Nancy Lockett and Ronny LOCKETT, Husband and Wife v. The STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2003-C-1767.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Louisiana State of et al.; Transportation & Development Department of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 462,218; to the Court of Appeal, First Circuit, No. 2002 CA 0651.

Granted. Briefing and argument specifically requested to address issues pointed out in assignments of error # 1 and # 2.


text:
    STATE of Louisiana v. Thomas BOBO.
    No. 2003-KK-2362.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Bobo, Thomas; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, Nos. 98-F1408, 98-F1683; to the Court of Appeal, Second Circuit, No(s). 37880-KW, 37881-KW.

Granted.


text:
    STATE of Louisiana v. James ANDREWS.
    No. 2003-KH-2710.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Andrews, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. Unavailable.

Granted for the sole purpose of transferring the pleading to the Court of Appeal, First Circuit, for its consideration.


text:
    STATE of Louisiana v. Darren WILLIAMS.
    No. 2003-KH-2722.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Williams, Darren; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 438-708.

Granted for the sole purpose of transferring the pleading to the district court for its consideration. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana v. Calvin James SOLET.
    No. 2002-K-1421.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Solet, Calvin James; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 320,561; to the Court of Appeal, First Circuit, No. 2001 KA 0793.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Sala-Din Abdul Shaheed RAHMAN v. STATE of Louisiana.
    No. 2002-CI-1854.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Rahman, Sala-Din Abdul Sha-heed; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 421,449; to the Court of Appeal, First Circuit, No. 2001 CA 0529.

Denied.


text:
    STATE ex rel. Robert LAIR v. STATE of Louisiana.
    No. 2002-KH-2233.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Lair, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 246,516; to the Court of Appeal, Third Circuit, No. KH 02-00296.

Denied.


text:
    STATE ex rel. Jennifer MCKENZIE v. STATE of Louisiana.
    No. 2002-KH-2501.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re McKenzie, Jennifer; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 405-596; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0473.

Denied.


text:
    STATE ex rel. Kevin ROSS v. STATE of Louisiana.
    No. 2002-KH-2536.
    Supreme Court of Louisiana.
    Oct. 17, 2003.
   In re Ross, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 11176; to the Court of Appeal, First Circuit, No. 2001 KA 0349.

Denied.