author: CANTERO, J. PARIENTE, J., LEWIS, J.,

text:
    STATE of Florida, Petitioner, v. Antoine L. McBRIDE, Respondent.
    No. SC02-627.
    Supreme Court of Florida.
    May 15, 2003.

      Charles J. Crist, Jr., Attorney General, and Robin A. Compton and Kellie A. Niel-an, Assistant Attorneys General, Daytona Beach, for Petitioner.
    Beverly A. Pohl and Bruce Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, for Respondent.
   CANTERO, J.

We review McBride v. State, 810 So.2d 1019, 1023 (Fla. 5th DCA 2002), in which the district court of appeal certified the following question of great public importance:

IS A DEFENDANT ENTITLED TO RELIEF PURSUANT TO A SUCCESSIVE RULE 3.800(a) MOTION TO CORRECT AN ILLEGAL SENTENCE WHEN THE DEFENDANT RAISED THE IDENTICAL ISSUE IN A PRIOR RULE 3.800(a) MOTION THAT WAS DENIED BY THE TRIAL COURT BUT NEVER APPEALED TO THE DISTRICT COURT OF APPEAL?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question in the negative and quash the decision of the Fifth District Court of Appeal.

I. Facts

Pursuant to a plea agreement, McBride entered a plea of nolo contendere to charges of attempted first-degree murder with a firearm, possession of a firearm by a convicted felon, and robbery with a firearm. See McBride, 810 So.2d at 1020. The court sentenced him as a habitual felony offender to concurrent thirty-year terms of imprisonment on each of the three counts. Id. In May 1990, however, when he committed the attempted first-degree murder, which is a life felony, life felonies were not subject to sentence enhancement under the habitual offender statute. See Lamont v. State, 610 So.2d 435 (Fla.1992).

In 2000, respondent filed a motion under Florida Rule of Criminal Procedure 3.800(a), asserting that the habitual offender sentence imposed for the attempted first-degree murder was illegal and requesting that he be resentenced. The court denied the motion, and McBride did not appeal. The following year, McBride filed another motion under the same rule asserting the same argument. Noting the successive nature of the claim, the trial court denied the motion, and this time McBride appealed. The Fifth District reversed, holding that the law of the case doctrine did not bar review by an appellate court and that the illegal sentence should be corrected. The appellate court thus reversed and remanded for further proceedings and certified the question quoted above. McBride, 810 So.2d at 1023.

II. McBride’s Habitual Offender Sentence

This Court previously has held that habitual offender sentences imposed for life felonies when life felonies were not subject to the habitual offender statute are illegal. See Carter v. State, 786 So.2d 1173, 1180 (Fla.2001); Lamont v. State, 610 So.2d 435, 438 (Fla.1992). It is therefore undisputed that McBride’s habitual offender sentence for attempted first-degree murder is illegal. Such a sentence ordinarily may be corrected under rule 3.800(a). See Carter, 786 So.2d at 1180. Because McBride already had filed the identical motion and the court had denied it, however, we must determine whether McBride is procedurally barred from obtaining relief. Our standard of review on such an issue is de novo. See West v. State, 790 So.2d 513, 514 (Fla. 5th DCA 2001); see also State v. Nuckolls, 677 So.2d 12, 13 (Fla. 5th DCA 1996) (noting that “[t]he issues in this case revolve around the legal sufficiency of the pleadings and therefore we review de novo the trial court’s ruling”).

Florida Rule of Criminal Procedure 3.800(a) provides as follows, in relevant part:

A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief ....

As we have previously stated, rule 3.800(a) “is intended to balance the need for finality of convictions and sentences with the goal of ensuring that criminal defendants do not serve sentences imposed contrary to the requirements of law.” Carter, 786 So.2d at 1176. A sentence is illegal if it imposes “a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” Id. at 1178 (quoting and approving definition in Blakley v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999)).

III. The Law of the Case Doctrine

The district court correctly held that the law of the case doctrine does not prevent McBride from relitigating the legality of his habitual offender sentence. That doctrine requires that “questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (emphasis added). Law-of-the-case principles do not apply unless the issues are decided on appeal. Id,.; see also Kelly v. State, 739 So.2d 1164, 1164 (Fla. 5th DCA 1999) (holding that “[s]ue-cessive 3.800(a) motions re-addressing issues previously considered and rejected on the merits and reviewed on appeal are barred by the doctrine of law of the case”). Because McBride did not appeal the previous order denying his rule 3.800 motion, the district court correctly held that the law of the case doctrine does not apply.

IV. Res Judicata and Collateral Estoppel Principles

Our conclusion that the law of the case doctrine does not bar McBride’s claim does not, however, end our analysis. The State urges us to apply the common law doctrine of res judicata. This Court has explained that doctrine as follows:

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Juliano, 801 So.2d at 105 (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984)). Thus, under res judicata, a judgment on the merits bars a subsequent action between the same parties on the same cause of action. See Denson v. State, 775 So.2d 288, 290 (Fla.2000) (applying res judicata to deny a habeas petition where the defendant had raised the same claim in a 3.800 motion decided against him on the merits and the defendant had exhausted all appropriate appellate review). Res ju-dicata, however, prohibits not only relit-igation of claims raised but also the litigation of claims that could have been raised in the prior action. Juliano, 801 So.2d at 105. The doctrine would require a motion to correct an illegal sentence to raise all arguments that the sentence is illegal. Subsequent motions would be barred if they contained arguments that were or could have been raised in the prior motion. Rule 3.800, however, allows a court to correct an illegal sentence “at any time.” Florida courts have held, and we agree, that the phrase “at any time” allows defendants to file successive motions under rule 3.800. See Raley v. State, 675 So.2d 170, 173 (Fla. 5th DCA 1996); Barnes v. State, 661 So.2d 71, 71 (Fla. 2d DCA 1995). Thus, rule 3.800 expressly rejects application of res judicata principles to such motions.

Again, however, this conclusion does not end the analysis. Although res judicata may not apply to motions filed under rule 3.800, the similar, but more narrow, doctrine of collateral estoppel, or issue preclusion, does apply. We have explained that doctrine as follows:

“Collateral estoppel is a judicial doctrine which in general terms prevents identical parties from relitigating the same issues that have already been decided.” Department of Health & Rehabilitative Services v. B.J.M., 656 So.2d 906, 910 (Fla.1995). Under Florida law, collateral estoppel, or issue preclusion, applies when “the identical issue has been litigated between the same parties or their privies.” Gentile v. Bander, 718 So.2d 781, 783 (Fla.1998). In addition, the particular matter must be fully litigated and determined in a contest that results in a final decision of a court of competent jurisdiction. See 656 So.2d at 910.

City of Oldsmar v. State, 790 So.2d 1042, 1046 n. 4 (Fla.2001). Although collateral estoppel generally precludes relitigation of an issue in a subsequent but separate cause of action, its intent, which is to prevent parties from rearguing the same issues that have been decided between them, applies in the postconviction context. As explained above, under the principles of res judicata a defendant would be prohibited from filing any successive 3.800 motion on any issue that was or could have been raised. Collateral estoppel, on the other hand, only precludes a defendant from rearguing in a successive rule 3.800 motion the same issue argued in a prior motion.

This analysis is consistent with the application of rule 3.800 in the district courts of appeal. For example, in Smith v. State, 685 So.2d 912, 912 (Fla. 5th DCA 1996), the Fifth District considered “whether the defendant may obtain relief, based on a claim that he was not given proper gain time credit, by a successive rule 3.800 motion.” The court concluded that “[w]hile it may be correct that rule 3.800 does not prohibit successive motions, we hold that where, as here, a defendant raises an issue under rule 3.800, the lower court denies relief and the defendant fails to appeal, he may not later raise the same issue in another rule 3.800 motion.” Id. Accord Tis-dol v. State, 823 So.2d 300, 301 (Fla. 3d DCA 2002); see also Jenkins v. State, 749 So.2d 527, 528 (Fla. 1st DCA 1999) (noting that a defendant may not raise the same illegal sentencing issue in successive post-conviction motions); Price v. State, 692 So.2d 971, 971 (Fla. 2d DCA 1997) (noting that rule 3.800 “contains no proscription against the filing of successive motions” but that “a defendant is not entitled to successive review of a specific issue which has already been decided against him”). In barring the filing of successive repetitive 3.800 motions, these courts essentially have applied collateral estoppel principles.

V. Manifest Injustice

Our application of collateral estoppel principles does not end the analysis, either. We must still decide whether a manifest injustice exception exists in the context of collateral estoppel, and if it does, whether manifest injustice would prohibit application of that doctrine.

This Court has long recognized that res judicata will not be invoked where it would defeat the ends of justice. See deCancino v. E. Airlines, Inc., 283 So.2d 97, 98 (Fla.1973); Universal Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366, 369 (Fla.1953). The law of the case doctrine also contains such an exception. See Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965). We have found no Florida case holding that such an exception applies to collateral estoppel. Federal courts and other state courts, however, have held that the collateral estoppel doctrine does contain such a manifest injustice exception. See, e.g., Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591, 599, 68 S.Ct. 715, 92 L.Ed. 898 (1948); Thompson v. Schweiker, 665 F.2d 936, 940 (9th Cir.1982); Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir.1971); Dowling v. Finley Assocs., Inc., 248 Conn. 364, 727 A.2d 1245, 1249 n. 5 (1999); Kansas Pub. Employees Ret. Sys. v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 941 P.2d 1321, 1333 (1997); State v. Harrison, 148 Wash.2d 550, 61 P.3d 1104, 1109 (2003). We agree. We hold that collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice.

In light of this holding, we must now determine whether the application of collateral estoppel in this case creates a manifest injustice that can be determined from the face of the record. See Fla. R.Crim. P. 3.800(a) (stating that the motion must “affirmatively allege[ ] that the court records demonstrate on their face an entitlement to ... relief’). As noted above, McBride was sentenced as a habitual offender to concurrent thirty-year terms of imprisonment on each of three felonies. Only the habitual offender sentence for the life felony of attempted first-degree murder, however, is illegal. In light of the concurrent sentences of the same length McBride is serving as a habitual offender, applying collateral estoppel to his successive motion will not result in a manifest injustice. In fact, as the State notes, re-sentencing McBride for the life felony could very well result in an increase in his prison term. See § 775.082, Fla. Stat. (1989). Therefore, McBride’s claim is barred.

Based on the foregoing, the trial court correctly denied McBride’s successive rule 3.800 motion, which raised the identical claim raised in his earlier motion, the denial of which he did not appeal. The prior judgment on the merits is thus final with regard to all matters addressed by the trial court in that order. Accordingly, we quash the decision of the Fifth District Court of Appeal, and answer the certified question in the negative.

It is so ordered.

WELLS and QUINCE, JJ., and SHAW, Senior Justice, concur.

PARIENTE, J., concurs in result only with an opinion, in which ANSTEAD, C.J., concurs.

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

PARIENTE, J.,

concurring in result only.

Although the members of this Court agree that McBride is not entitled to sentence correction via his rule 3.800(a) motion, we diverge in our views of the law dictating this result. The majority rejects the doctrines of law of the case and res judicata, and instead applies collateral es-toppel, recognizing a manifest injustice exception. Justice Lewis considers collateral estoppel inapplicable and asserts that res judicata is the proper legal principle, while also embracing a manifest injustice exception.

In my view, the reason for the struggle to make well-established legal principles fit into the rule 3.800(a) framework is because neither doctrine is suited to the unique jurisprudential concerns regarding illegal sentences and the specification in rule 3.800(a) that an illegal sentence may be challenged at any time. Instead, I conclude that we should quash the Fifth District decision reversing the trial court’s denial of the rule 3.800(a) motion because McBride has not received an illegal sentence remediable under the rule.

Moreover, even assuming the doctrine of collateral estoppel bars a successive rule 3.800(a) claim based on the identical claim previously raised, it is essential that we clarify the precise definition of the manifest injustice exception to provide guidance to trial courts and appellate courts. In my view, unless the trial court could have imposed the same sentence or a more severe sentence absent the illegality, correction of an illegal sentence under rule 3.800(a) is necessary to prevent a manifest injustice.

McBride’s sentence is in accord with a plea agreement and is within the statutory maximum for a life felony. In Maddox v. State, 760 So.2d 89, 103 (Fla.2000), we reaffirmed our precedent “allowing defendants to agree through a plea bargain to a sentence not specifically authorized by statute or rule as long as the sentence does not exceed the statutory maximum.” Cases in which we held that an unauthorized habitual offender sentence for a life felony could be rectified via rule 3.800(a) involved sentences imposed after trial and not as the result of a guilty or no contest plea. See Carter v. State, 786 So.2d 1173 (Fla.2001), quashing 704 So.2d 1068, 1069 (Fla. 5th DCA 1997) (defendant “tried and convicted”); Lamont v. State, 610 So.2d 435, 436, 439 (Fla.1992) (defendant “found guilty”; discussion of verdict form).

I do not endorse the propositions that either res judicata, which protects the finality of judgments, or collateral estoppel, which precludes relitigation of issues previously resolved, bars the correction of truly illegal sentences under rule 3.800(a). In fact, the very notion of rule 3.800(a) is that it allows the illegality of a sentence to be raised at any time after the judgment and sentence are final — even though the challenge to the sentence could have been raised on direct appeal. The fact that a trial court may have in a given case erroneously rejected a postconviction claim of an illegal sentence brought by a defendant (who most likely is unrepresented) should not bar a valid challenge to a truly illegal sentence in a rule 3.800 proceeding. Indeed, past experience shows that even valid challenges to sentences may be rejected and the denial of the motion affirmed per curiam without opinion, especially in areas where the law is in transition. See, e.g., Dixon v. State, 730 So.2d 265, 268 n. 4 (Fla.1999) (noting disparate treatment of appeals from summary denials of postcon-viction motions seeking retroactive application of Hale v. State, 630 So.2d 521 (Fla.1993)).

Application of either res judicata or collateral estoppel to rule 3.800 proceedings can also frustrate pro se litigants whose meritorious claims have been previously derailed on procedural grounds. For example, in Ford v. State, 667 So.2d 455 (Fla. 4th DCA 1996), the trial court denied, on res judicata grounds, a successive rule 3.800(a) motion seeking presentence jail credit after the appeal of the denial of the previous motion was dismissed as untimely. To its credit, the State acknowledged on appeal that the second motion was not barred. Id. at 455. Pro se defendants who are ignorant of the fact that rule 3.800 does not authorize a motion for rehearing often file for rehearing and then find that their appeals have been dismissed as untimely. See, e.g., Mincey v. State, 789 So.2d 492 (Fla. 1st DCA 2001).

While I would never condone the successive filing of nonmeritorious motions, we should not bar reconsideration of a meritorious claim under rule 3.800 that the sentence is illegal. I thus do not agree with the majority that consideration of a successive motion that a sentence is illegal should turn on the existence of a “manifest injustice” exception. See majority op. at 291-92. Rather, in my view the mechanism for correcting illegal sentences provided by rule 3.800(a) should be limited only by the provisos that the error appear on the face of the record and that the sentence itself be illegal as measured by statute, rule, or case law.

As we noted in Maddox, “[t]he extraordinary provision made for remedying illegal sentences evidences the utmost importance of correcting such errors, even at the expense of legal principles that might preclude relief from trial court errors of less consequence.” 760 So.2d at 101. We recognized that “clearly the class of errors that constitute an ‘illegal’ sentence that can be raised for the first time in a post-conviction motion decades after a sentence becomes final is a narrower class of errors than those termed ‘fundamental’ errors that can be raised on direct appeal even though unpreserved.” Id. at 100 n. 8. We observed in Maddox that the State recognizes that it “has no interest in any defendant serving a sentence that is longer than the sentence authorized by law.” Id. at 99. Indeed, the entire justice system certainly has an interest in ensuring that the defendant is not incarcerated longer than is authorized by law, or under illegal terms. The courts have an obligation to correct any such error whenever it is brought to their attention.

In accord with the principles espoused in Maddox, we held in Bover v. State, 797 So.2d 1246 (Fla.2001), that a defendant who pled no contest to fifteen third-degree felonies for a ten-year habitual offender sentence could challenge the sentence via rule 3.800(a) on grounds that his prior offenses did not qualify him for habituali-zation. Absent qualification as a habitual offender, the maximum sentence- Bover could have received for each third-degree felony was five years in prison. We noted that pursuant to the recommended guidelines sentence of life, Bover could have received fifteen consecutive five-year sentences, but we declined to address the effect of the plea agreement on the claim that he lacked the prior felonies necessary for habitualization because neither party raised the issue. Id. at 1251 n. 7.

In this case, however, the existence of the plea agreement should not be ignored, because it resulted in three concurrent thirty-year habitual offender sentences, one of which was on the attempted murder count at issue here. Although a habitual offender sentence was not authorized for a life felony, the thirty-year sentence on this count is within the applicable statutory maximum of a “term of years not exceeding 40 years” for a life felony. § 775.082(3)(a), Fla. Stat. (1989). The plea agreement and resulting sentence within the statutory maximum bring this case within the class of cases contemplated by our approval in Maddox of agreements to sentences that are not specifically authorized by statute but do not exceed the statutory maximum. See 760 So.2d at 103. Therefore, consistent with Maddox, I would hold that the imposition of an unauthorized habitual offender sentence can be corrected via rule 3.800(a), except in those situations in which the defendant has agreed through a knowing and voluntary plea to a sentence that does not exceed the maximum penalty authorized for the offense.

Because McBride agreed to his unauthorized sentence as part of a plea and the thirty-year sentence does not exceed the maximum penalty authorized for a life felony under section 775.082(3)(a), he is not entitled to relief via rule 3.800(a). However, because the certified question does not draw a distinction for unauthorized habitual offender sentences imposed pursuant to plea, I do not concur in the majority’s answer to the certified question.

ANSTEAD, C.J., concurs.

LEWIS, J.,

concurring in part and dissenting in part.

I concur in the result only with regard to the issues addressed by the majority today, but I cannot accept the creative reasoning adopted by the Court without authority in its opinion. I must dissent from the majority’s unprecedented decision to ignore age-old precedent and rewrite Florida law to apply the doctrine of collateral estoppel to the facts of the present case. In my view, the majority ig-ñores extraordinarily well-settled facets of Florida’s common law, and simply creates new law, without any deference to, or consideration of, the prior opinions of this Court. Because I can find no existing authority which supports the inordinate and rash action taken today by the Court to totally eliminate the clear legal distinction between collateral estoppel and res judicata, while years of precedent counsel against application of the doctrine of collateral estoppel to the instant case, I dissent.

The doctrines of res judicata and collateral estoppel, and their very separate and distinct nature, are age old. Indeed, each doctrine “was recognized by the Roman law, and later by the English courts, and it is said that [each] pervades, not only our own, but all other, systems of jurisprudence to this day, and has become a rule of universal law.” Cragin v. Ocean & Lake Realty Co., 101 Fla. 1324, 133 So. 569, 571 (1931); see also Coral Realty Co. v. Peacock Holding Co., 103 Fla. 916, 138 So. 622, 624 (1931). Central to the law regarding the preclusive effects of prior judgments, and critical in the present action, are the discrete and important differences between the doctrines of res judicata and collateral estoppel.

As long as the doctrines have been part of Florida law, a matter has qualified for the application of res judicata, thereby barring further litigation on a relevant claim, only where there is “a concurrence of identity in the thing sued for, identity of cause of action, identity of persons and parties to the action, and identity of quality in persons for or against whom claim is made.” McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 162 So. 323, 328 (1935); see also Palm AFC Holdings, Inc. v. Palm Beach County, 807 So.2d 703, 704 (Fla. 4th DCA 2002); State Dep’t of Revenue v. Ferguson, 673 So.2d 920, 922 (Fla. 2d DCA 1996). I suggest that there is no question that the doctrine of res judicata applies in the present case. Here, McBride’s initial and subsequent rule 3.800 motions contained recitations of identical facts, raised identical claims, involved identical parties, and were, in both substance and form, identical actions.

The pertinent, well-recognized difference between the doctrines of res judicata and collateral estoppel is that while res judicata requires identity of the cause of action, see McGregor, this Court has always reserved collateral estoppel only for the situation in which a party attempts to rely upon the judgment entered or determination made in a prior and unrelated action. Indeed, the decisions in which this Court has limited application of collateral estoppel to “those cases wherein the parties are the same in the second suit as in the former action but the causes of action are different,” Yovan v. Burdine’s, 81 So.2d 555, 557 (Fla.1955), are myriad. Probably the most succinct and direct expression of this principle is found in this Court’s statement in Universal Construction Co. v. City of Fort Lauderdale, 68 So.2d 366 (Fla.1953): “Estoppel by judgment is applicable only in those cases wherein the parties are the same in the second suit as in the former but the cause of action is different.” Id. at 369 (emphasis supplied). There are multiple Florida decisions which echo this conclusion.

Because the majority chooses to simply ignore overwhelming authority which precludes the application of collateral estoppel to the facts of the instant case due to the simple, obvious fact that the cause of action before this Court is absolutely identical to that filed originally by McBride in 2000, and refuses to apply the correct doctrine of res judicata, I dissent. I can find absolutely no authority which supports the course of action taken by the majority today, and the majority provides no authority for applying collateral estoppel and obliterating the well-defined legal distinction between this doctrine and res judicata. With this decision the Court rewrites the law of collateral estoppel, applying the doctrine to a subsequent, identical action in contravention of decades of Florida precedent. I refuse to be part of a unilateral and baseless revision of the law which changes the very core of the doctrine of collateral estoppel; therefore, I dissent from that portion of the majority opinion applying collateral estoppel to the present case, and concur only in the result. Collateral estoppel now has the identical components which have historically existed only for application of res judicata.

      . Both res judicata and collateral estoppel apply in criminal and civil contexts. See, e.g., Thompson v. Crawford, 479 So.2d 169 (Fla. 3d DCA 1985) (noting that the doctrine of res judicata is as applicable to judgments in criminal prosecutions as to civil cases); Brown v. State, 397 So.2d 320, 322 (Fla. 2d DCA 1981) (holding that denial of motions to suppress in a bookstore robbery case was proper under a theory of collateral estoppel where the same witness identification was the subject of prior suppression motions denied in a market robbery case).

        . See Sheam v. Orlando Funeral Home, Inc., 88 So.2d 591, 594 (Fla.1956); Gordon v. Gordon, 59 So.2d 40, 44 (Fla.1952); Green v. State Dep't of Health & Rehabilitative Servs., 412 So.2d 413, 414 (Fla. 3d DCA 1982) (“Where the causes of action are different, the doctrine of estoppel by judgment comes into play ....”) (quoting 32 Fla. Jur.2d, Judgments and Decrees, § 116); Clean Water, Inc. v. State Dep’t of Envtl. Reg., 402 So.2d 456, 458 (Fla. 1st DCA 1981) ("The doctrine of res judicata bars relitigation of the same cause of action between the same parties and collateral estop-pel bars relitigation of the same issues between the same parties in a different cause of action.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Omar Javier ARCIA, Respondent.
    No. SC01-952.
    Supreme Court of Florida.
    May 29, 2003.
    John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, Florida; and William Mulligan, Bar Counsel, Miami, FL, for Complainant.
    John A. Weiss of the Law Offices of Weiss and Etkin, Tallahassee, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report and recommendation regarding attorney Omar Javier Arcia’s ethical breaches. We have jurisdiction. See art. V, § 15, Fla. Const.

I. FACTS

The Florida Bar filed a complaint against Arda claiming that he violated an agreement between Arda and the law firm that employed him. The referee granted the Bar’s Motion for Partial Summary Judgment, stating that the sole issue to be determined at the final hearing was the discipline to be imposed. After the final hearing, the referee issued a report containing the following findings and recommendations.

Arda was employed as an associate at Zarco and Pardo, P.A. (the firm) from about 1995 until he was fired on September 8, 2000. His employment agreement provided him a base salary and a potential bonus each year. Arda was given a copy of the firm’s manual, which warned that attorneys were prohibited from independently representing the firm’s clients or prospective clients. The firm advised Ar-da that he could represent family members and friends, but any fees were payable to the firm.

In about December 1998, Arda formed Omar J. Arda, P.A. (the Arda P.A.), of which he was the sole shareholder and employee. During his employment with the firm, Arda represented some clients for the benefit of the Arda P.A., and not the firm, thus violating his employment agreement. Arda solicited about ten to twenty clients or potential clients by, among other things, intercepting telephone calls directed to the firm. On several occasions, Arda deposited fees he had obtained in representing the firm’s clients or prospective clients into the Arda P.A. bank account. Further, even though the firm’s practice was for a partner to open all mail, Arda would sometimes intercept the mail and take checks made payable to the Arda P.A. Arda effected the transfers to the Arda P.A. bank accounts without the firm’s consent or knowledge.

Arda also induced some of the firm’s clients to deliver payments of fees to the Arda P.A. by claiming he was a partner of the firm, and by preparing misleading documents such as stationery and other materials suggesting a relationship between the Arda P.A. and the firm. On many occasions, Arda executed retainer agreements with clients in which he listed Arda P.A. and the firm as the attorneys retained. Arda never advised the firm of the existence of Arda P.A. and never provided the firm with any portion of the fees he received. At least once, Arda filed a pleading in federal court suggesting that he and a partner of the firm were representing a client when, in fact, the partner had no knowledge of the representation.

Arda used firm resources during office hours to conduct his fraudulent activities, and admitted that he viewed the firm as a competitor of the Arda P.A. Finally, when Arda received fees from representing friends or family, he never advised the firm.

Arda admitted to depriving the firm of about $62,000 in legal fees. During the to 2-year span of Arcia’s misconduct, the firm paid him bonuses.

Arcia’s misconduct accelerated until he was fired. One of the reasons for this acceleration, besides greed, was his wife’s loss of income. Arcia’s wife left her job when she became pregnant.

On three different dates, the firm afforded Arda the opportunity to admit to his conduct, but he failed to do so. In particular, on September 8, 2000, Arda refused to admit to his improprieties until the firm confronted him with clear evidence of its knowledge. When asked why he engaged in such fraud, Arda responded that it was the result of his greed.

The firm sued Arda and obtained a temporary restraining order against him. The firm and Arda later settled the case. He agreed to repay the firm $60,000. Arda requested that the following language be included in the agreement: “Neither Zarco & Pardo, P.A. nor any of its employees, shall initiate contact or provide any further evidence to [T]he Florida Bar in connection with the Bar Complaint instituted against Omar J. Arda for the allegations contained in the Subject Lawsuit, except as specifically required by law.”

The referee concluded that Arcia’s actions constituted a theft of firm funds and possibly client funds. The firm could have requested payment from these clients for the unpaid fees Arda had deceptively collected. The referee further found that the firm had been harmed by Arcia’s actions, noting that the firm lost numerous H & R Block franchisees as clients. Arda also agreed, without the firm’s knowledge, to represent a client that created a conflict of interest. The referee noted that on the eve of the final hearing, Arda made full restitution to the firm — about two years earlier than the deadline in the settlement.

The referee recommended that Arda be found guilty of violating Rules Regulating the Florida Bar 4-8.4(b) (providing that a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) and 4 — 8.4(e) (providing that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation). The referee recommended that Arda be suspended for three years, followed by three years’ probation. The referee noted that “[if] not for the fact that [Arda] is young and has two very young children plus some other mitigating factors, this referee’s recommendation would be five year disbarment.” As conditions of probation, the referee recommended: (1) supervisor reports regarding Arcia’s client files, (2) passing the ethics portion of the Bar exam, (3) reports on Arcia’s trust accounts by a certified public accountant, and (4) entrance into a rehabilitation contract with Florida Lawyers Assistance, Inc., for mental health counseling. Finally, the referee recommended that the Bar be awarded its costs.

The referee found in aggravation (1) a dishonest or selfish motive, (2) a pattern of misconduct, (3) multiple offenses, (4) vulnerability of victim, noting that the firm trusted Arda and provided him with access to its clients, and (5) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. In support of this final aggravator, the referee cited the paragraph in the settlement order that bars employees of the firm from contacting or providing evidence to the Bar. In mitigation, the referee found: (1) lack of a disciplinary history, (2) personal or emotional problems (Arda testified that he experienced family and financial problems especially after his wife left her job), (3) timely restitution (however, the referee noted that “[t]he full consequences of his misconduct cannot be stated with specificity”), (4) character or reputation (the referee stated that “a few attorney friends” testified as to Arcia’s character and reputation), (5) interim rehabilitation, and (6) remorse.

The referee’s choice of words in finding the rehabilitation and remorse mitigators demonstrates that the referee did not give them much weight. Regarding rehabilitation, the referee stated that Arcia “has provided little evidence to show that he has been rehabilitated from his dishonesty although he has built up a practice in the past year and has been referred cases by other attorneys who have been satisfied with his work.” As to remorse, the referee stated that he “saw little if no outward appearances of remorse or emotion. However, [Arcia] testified that he was remorseful and so did his friends.” Earlier in the report, the referee stated: “[Arcia] still thinks that he is very clever and ‘slick’. As an example, [Arcia] testified that he thought that what he did was simply ‘moonlighting’. After questioning, he did a backpedal and admitted it may have been more than just moonlighting.”

Arcia challenges the aggravating and mitigating factors the referee found, as well as the recommended discipline.

II. ANALYSIS

Neither party contests the referee’s recommended findings of fact or recommendations as to guilt for the violations of rules 4-8.4(b) and 4-8.4(c). Therefore, we approve the referee’s findings of fact and recommendations of guilt without further discussion.

A. Aggravators and mitigators

Arcia first challenges various ag-gravators and mitigators the referee found. We have held that a referee’s findings of fact carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. See Florida Bar v. Summers, 728 So.2d 789, 741 (Fla.1999). This standard applies in reviewing a referee’s findings of mitigation and aggravation. See, e.g., Florida Bar v. Wolis, 783 So.2d 1057, 1059 (Fla.2001); Florida Bar v. Hecker, 475 So.2d 1240, 1242 (Fla.1985). Having reviewed the record below, we conclude that the referee’s findings of aggravators and mitigators are supported by the record and are not clearly erroneous. Accordingly, we approve the referee’s findings.

B. Recommended discipline

Arcia next challenges the referee’s recommended discipline. He argues that in other cases involving theft of firm funds we have imposed a maximum discipline of only one-year suspensions. See Florida Bar v. Ward, 599 So.2d 650 (Fla.1992); Florida Bar v. Farver, 506 So.2d 1031 (Fla.1987). He also argues that we have found theft of firm funds to be less serious than theft of client funds, thus warranting lesser discipline.

In client misappropriation cases, we have held that a presumption of disbarment exists. See Florida Bar v. Bailey, 803 So.2d 683 (Fla.2001). We also have held that “when a lawyer steals from someone other than a client, th[e] special ‘public trust’ is not violated to the same extent as if the lawyer has stolen money from his or her client.” Ward, 599 So.2d at 652. While the public trust may not be violated to the same extent, however, it is violated nonetheless. Conduct such as Ar-cia’s (i.e., an attorney stealing from a law firm) has been held to constitute grand theft. See Rigal v. State, 780 So.2d 256 (Fla. 3d DCA), review denied, 800 So.2d 615 (Fla.2001). We conclude that, for purposes of attorney discipline, theft of firm funds is serious enough to warrant disbarment under most circumstances. While theft of client funds rends the fundamental bond between a lawyer and the client, theft of firm funds breaches the trust that law firms must place in their attorneys as professionals to act as representatives of the firm.

In this case, while in proceedings before the referee the Bar sought disbarment, it has not cross-appealed the referee’s recommended discipline of a three-year suspension. We therefore defer to the referee’s recommendation and impose a three-year suspension to be followed by a three-year probationary period, to begin upon Arcia’s reinstatement. We emphasize, however, that future cases involving theft of firm funds will carry a presumption of disbarment.

Accordingly, Omar Javier Arcia is hereby suspended from the practice of law for three years. The suspension will be effective thirty days from the filing of this opinion so that Arcia can close out his practice and protect the interests of existing clients. If Arcia notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Arcia shall accept no new business from the date this opinion is filed until the suspension is completed and Ar-cia is reinstated to the practice of law in Florida. If Arcia is reinstated to the Bar following his suspension, he shall immediately be placed on three years’ probation with the conditions outlined in the referee’s report.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, -for recovery of costs from Omar Javier in the amount of $4,284.90, for which sum let execution issue.

It is so ordered.

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

      . Arcia did challenge the referee's finding that he established the P.A. with the intent to divert funds from the firm. Given that Arcia remained with the firm for almost two years after forming the P.A. and that within about six months of the incorporation he began diverting funds into the P.A., this finding is not clearly erroneous.


text:
    Nathaniel POOLE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. SC01-2094.
    Supreme Court of Florida.
    May 29, 2003.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Seventh Judicial Circuit, Dayto-na Beach, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Kellie A. Nielan and Bonnie Jean Parrish, Assistant Attorneys General, Day-tona Beach, FL, for Respondent.
   PER CURIAM.

We originally accepted jurisdiction to review Poole v. State, 791 So.2d 1232 (Fla. 5th DCA 2001), pursuant to article V, section 3(b)(3), of the Florida Constitution. After further consideration, we have determined that jurisdiction was improvidently granted. Accordingly, this case is hereby dismissed.

It is so ordered.

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

LEWIS, J., dissents.


text:
    Inquiry Concerning a Judge, No. 01-244, Re Charles W. COPE.
    No. SC01-2670.
    Supreme Court of Florida.
    May 29, 2003.

      The Honorable James R. Jorgenson, Chairman, Hearing Panel, Tallahassee, Florida; John Beranek, Counsel to the Hearing Panel, Tallahassee, FL; John S. Mills, Special Counsel, The Mills Firm, Jacksonville, FL; Heather Ann Solanka Co-Counsel of Foley & Lardner, Jacksonville, FL; and Thomas C. MacDonald, Jr., General Counsel, Tampa, FL, for Petitioner, Florida Judicial Qualifications Commission.
    Robert W. Merkle and David J. Plante of Merkle & Magri, P.A., Tampa, FL, for Respondent.
   PER CURIAM.

We review the findings and recommendation of the Judicial Qualifications Commission (JQC) concerning the conduct of Circuit Judge Charles W. Cope. We have jurisdiction. See art. V, § 12 Fla. Const. Judge Cope contests neither the JQC’s findings nor its recommended discipline, and we approve both as detailed below. Judge Cope argues, however, that he is entitled to attorneys’ fees as the prevailing party because he admitted to the charges on which the JQC eventually found him guilty and denied those charges on which the JQC found insufficient evidence. For the reasons expressed below, we deny his request for attorneys’ fees.

I.

The charges brought by the JQC stem from conduct exhibited by Judge Cope while attending an out-of-state judicial conference in April 2001. The investigative panel accused Judge Cope of (1) being publicly intoxicated on two nights; (2) stealing a hotel room key belonging to two women; (3) engaging in inappropriate conduct of an intimate nature with one of the women; (4) prowling and attempting to forcibly enter the women’s hotel room; (5) making a material false statement to the police after being placed under a citizen’s arrest; and (6) failing to disclose his citizen’s arrest upon returning to the bench.

The hearing panel found that clear and convincing evidence supported the charges of public intoxication (count I) and inappropriate conduct of an intimate nature (count III). A verdict was directed in Judge Cope’s favor on the remaining counts. The specific accusations and panel findings for counts I and III are as follows:

Count I
Public Intoxication
1. In the early morning hours of April 4, 2001, while in Carmel-by-the-Sea, California for a judicial conference, you became intoxicated from alcohol and wandered the public streets.
2. You wandered onto the premises of the Normandy Inn and began eavesdropping on the personal conversation of a grown woman and her mother, who were sitting outside their shared, second-floor hotel room.
3. You then went up the stairs and interposed yourself into the women’s conversation.
4. When the women discovered that the door to their hotel room was locked and they could not find their key, you suggested they come to your hotel room at the La Playa Hotel a few blocks away.
5. You and the two women began walking down the middle of the public street in an obviously intoxicated state and were picked up by a police officer, who drove the three of you to your hotel.
6. During the evening of April 4 and early morning hours of April 5, 2001, you again became very intoxicated in public and wandered the streets.
7. By your own admission, you were so intoxicated that you could not remember what you did or where you went.
8. The inappropriate nature of your conduct was exacerbated by the fact that your conduct occurred while attending an out-of-state judicial conference at taxpayer’s expense and the public location of much of your conduct.
PANEL FINDING:
The Panel finds Judge Cope guilty in part as to this charge based largely upon his own admissions. Both Judge Cope and his counsel admitted that his conduct under this charge was entirely inappropriate.
Count III
Inappropriate Conduct of an Intimate Nature
12. After the police officer returned the two women to their hotel room during the early morning hours of April 4, 2001, you returned to the women’s room and asked the daughter to walk with you on the beach.
13. You subsequently engaged or attempted to engage in conduct of an intimate nature with the daughter, who was obviously intoxicated and in an emotionally vulnerable state.
14. Regardless of whether the daughter initiated the intimate conduct or actively resisted sexual advances by you, your conduct tends to undermine the public’s confidence in the judiciary and demeans the judicial office.
15. The inappropriate nature of your conduct was exacerbated by your intoxicated state, the fact that your conduct occurred while attending an out-of-state judicial conference at taxpayer’s expense, and the public location of much of your conduct.
PANEL FINDING:
The Hearing Panel finds Judge Cope guilty in part on this count based largely upon the admissions of Judge Cope. Again both Judge Cope and his counsel consistently agreed that his conduct under this charge was entirely inappropriate.

Inquiry Concerning a Judge, No. 01-211, Charles W. Cope, Findings, Conclusions and Recommendations at 4-6 (Fla. Judicial Qualification Comm’n report filed Aug. 2, 2002). The JQC specifically found that Judge Cope’s conduct brought the judiciary into disrepute. Id. at 11-12.

II.

Because Judge Cope does not contest the findings of the JQC, we begin our analysis with the understanding that Judge Cope’s conduct in Carmel, California, brought the judiciary into disrepute. Bringing the judiciary into disrepute is a violation of Canon 5A(2), Florida Code of Judicial Conduct. Accordingly, Judge Cope will be disciplined for his conduct. We give deference to the hearing panel’s determination that insufficient evidence exists to support counts II, IV, and V. See In re Crowell, 379 So.2d 107 (Fla.1979) (because the hearing panel is in a position to evaluate the evidence first-hand, its findings of fact are of persuasive force and should be given great weight). We also agree with the JQC that no canon of judicial conduct required Judge Cope to report to the JQC or to parties appearing before him that a citizen had arrested him on a minor misdemeanor charge.

III.

The JQC recommended that Judge Cope be publicly reprimanded for bringing the judiciary into disrepute. Judge Cope does not contest the recommended discipline. Given his sincere remorse and his exemplary performance as a judge, a public reprimand is appropriate. See In re Norris, 581 So.2d 578 (Fla.1991).

IV.

Judge Cope seeks to recover his attorneys’ fees and costs. We discuss each in turn.

A.

Judge Cope seeks to recover his costs under Florida Rule of Judicial Administration 2.140. Judge Cope argues that he is the prevailing party because the JQC found in his favor on all the charges he contested, and that the only two issues on which he was found guilty were those to which he had admitted guilt. We disagree.

Rule 2.140 provides: “The supreme court may award reasonable and necessary costs, including costs of investigation and prosecution, to the prevailing party. Neither attorneys’ fees nor travel expenses of commission personnel shall be included in an award of costs.” Fla. R. Jud. Admin. 2.140(c) (emphasis added). The prevailing party for purposes of taxing costs is the party who prevailed on the significant issues below. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807 (Fla.1992). Under this test, the JQC prevailed on the significant issues in the litigation below. The overriding issue was whether Judge Cope’s conduct brought the judiciary into disrepute. Although the panel divided Judge Cope’s conduct into separate charges, the charges were temporally related to a single episode. See In re Norris, 581 So.2d 578 (Fla.1991) (finding that a 72-hour spree that included discharging a firearm inside a house, driving while intoxicated, and attempting to commit suicide was a one-time personal crisis compounded by the undiagnosed disease of alcoholism).

Judge Cope maintains that he is entitled to costs because he admitted he was publicly intoxicated and engaged in inappropriate intimate conduct in public, thus rendering a hearing unnecessary. The record shows, however, that Judge Cope did not fully admit his guilt either before or during the hearing. Both his answer and his response to requests for admissions denied the charges. These denials alone rendered a hearing necessary. Even at the hearing, his testimony was equivocal:

Q. Do you acknowledge here today that you were publicly intoxicated on both April 3rd and April 4th?
A. I can acknowledge that, yes, but I would like to make distinctions on—
Q. You were intoxicated?
A. Yes.
Q. And you were in public?
A. Yes.
Q. Walking around in public intoxicated?
A. Yes. With qualifications, yes.

A candid admission required Judge Cope to answer “yes.” An answer of “yes, but” and “yes, with qualifications” falls short of a genuine admission of wrongdoing. Judge Cope was implicitly arguing that he was not stumbling-over drunk and thus was not guilty of violating any canon of judicial conduct. Moreover, in his closing argument Judge Cope’s counsel stated:

If you find, as I think you will, Judge Cope was intoxicated, please be faithful to the evidence in the case and at least distinguish the degree of intoxication from that alleged in Count I....
If you find that Judge Cope is responsible under Count III — and, you know, I wasn’t born yesterday.

Clearly these arguments, coupled with Judge Cope’s testimony, and his denial of the requested admissions, show that Judge Cope argued his innocence throughout the proceeding.

B.

Judge Cope argues he is entitled to recover attorneys’ fees under section 57.105, Florida Statutes (2002), because the charges of theft, prowling and attempted forceful entry, lying to the police, and failure to report the citizen’s arrest were all unfounded. Section 57.105 sanctions apply only to civil proceedings. Cf Procacci Commercial Realty, Inc. v. Dep’t of Health & Rehab. Servs., 690 So.2d 603, 608 n. 8 (Fla. 1st DCA 1997). We have never applied the statute to proceedings before the JQC, or to any other administrative proceeding, for that matter. Even if section 57.105 did apply to JQC proceedings, however, Judge Cope still would not be entitled to attorneys’ fees. The claims the Special Prosecutor pursued against Judge Cope, while ultimately not proven by the heightened standard of clear and convincing evidence, were not such that the Special Prosecutor knew or should have known that they lacked merit.

VI.

Based on the foregoing discussion, Judge Cope is hereby commanded to appear before this Court on a date to be set by further order of the Court, for the administration of a public reprimand for bringing the judiciary into disrepute. We direct that each .party bear its own costs for the proceeding.

It is so ordered.

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


text:
    C.T., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1811.
    Supreme Court of Florida.
    June 5, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, FL, for Petitioner.
    Charlie J. Crist, Jr., Attorney General, and Celia A. Terenzio, Assistant Attorney General, Chief, and Sue Ellen Kenny, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We originally accepted jurisdiction to review C.T. v. State, 819 So.2d 869 (Fla. 4th DCA 2002), pursuant to article V, section 3(b)(3), of the Florida Constitution. After further consideration, we have determined that jurisdiction was improvidently granted. Accordingly, this case is hereby dismissed.

It is so ordered.

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

LEWIS, J., dissents.


text:
    Derrick BORUM, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-829.
    District Court of Appeal of Florida, Second District.
    May 10, 2002.
   PER CURIAM.

Derrek Borum appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion. Although the trial court incorrectly denied the motion as successive, we affirm the denial because Bo-rum did not attach a copy of the detainer to his motion. Borum may file another rule 3.800(a) motion with a copy of his detainer attached, and it shall not be considered successive by the trial court.

GREEN, DAVIS, and SILBERMAN, JJ., Concur.


author: DAVIS, Judge.

text:
    Ricardo SOSA-LEON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2119.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.

      James Marion Moorman, Public Defender, Bartow, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa," for Appellee.
   DAVIS, Judge.

Ricardo Sosa-Leon, convicted of multiple drug offenses, carrying a concealed weapon, and introduction of contraband into a detention facility, challenges the trial court’s order denying his motion to suppress. We reverse.

On February 22, 2000, while Polk County Sheriffs Office detectives were executing a search warrant on a mobile home, Sosa-Leon walked up to the front door carrying a can of beer and a Wal-Mart bag. As Sosa-Leon approached, one detective, who was standing in the doorway, moved aside and asked Sosa-Leon to step inside. Once inside, the detective motioned to Sosa-Leon to raise his hands so the detective could perform a pat-down search for weapons. Because the Wal-Mart bag in his hand prevented Sosa-Leon from raising both his hands over his head, the detective motioned to Sosa-Leon to hand the bag to a second detective. As Sosa-Leon did so, the first detective grabbed Sosa-Leon’s hands with one hand and patted him down with the other. During the pat-down, the detective found a pistol in Sosa-Leon’s waistband.

The second detective smelled the odor of marijuana coming from inside the Wal-Mart bag. Sosa-Leon then was taken into custody for possession of cannabis and carrying a concealed firearm. After handcuffing him, the first detective found other narcotics on Sosa-Leon’s person.

The trial court ruled that these circumstances justified the search for weapons because Sosa-Leon “suddenly entered the mobile home that was being lawfully searched while carrying a bag from which the odor of cannabis was emanating.” However, the record does not support these factual findings. First, the detective testified that, upon seeing Sosa-Leon standing at the doorway, he asked Sosa-Leon to enter the mobile home. Sosa-Leon did not “suddenly” enter on his own. Moreover, the detective testified that he did not smell the cannabis until he had grabbed the bag from Sosa-Leon so that the pat-down search could proceed. Thus, at the initiation of the pát-down search, the detective was not in possession of the bag. Accordingly, the odor smelled by the detective after opening the bag could not justify the search.

The mere presence of a visitor in a residence being searched pursuant to a legal search warrant is insufficient to connect him with criminal eohduct justifying a search of his person. Harris v. State, 790 So.2d 1246 (Fla. 5th DCA 2001). Furthermore, an officer should not conduct a pat-down search unless he has an articulable suspicion that the suspect is armed. D.O. v. State, 832 So.2d 256 (Fla. 2d DCA 2002).

Here, the officer did not testify to any articulable suspicion that Sosa-Leon was armed in order to justify the pat-down. Rather, he testified that the search was one he routinely conducted under similar circumstances. Accordingly, the trial court’s conclusion that the detectives had reason to believe that Sosa-Leon was armed and were justified in performing the pat-down search is not supported by the testimony presented at the hearing.

The State argues that even if the detective lacked justification to perform the pat-down search, the suppression should be affirmed based on the good-faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We disagree. Leon indicates that evidence found during an illegal search performed when the officer believes he is acting in reasonable reliance upon a warrant should not be excluded. Here, the detective was not searching Sosa-Leon based on a warrant. The detective did not testify that he thought Sosa-Leon was sufficiently related to the activities of the residence to bring him within the purview of the search warrant. Accordingly, Leon does not apply to these facts.

Reversed and remanded.

BLUE, C.J., and COVINGTON, J., Concur.


text:
    J.F.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5244.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    James Marion Moorman, Public Defender, Bartow, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

J.F.R. challenges his adjudication of delinquency arguing that the evidence was insufficient to support a finding that he committed aggravated assault with a deadly weapon. We conclude that the record does not support the adjudication of delinquency and reverse.

These proceedings arose out of an incident in which J.F.R., his- brother, and a number of other youths drove into the victim’s yard, exited their vehicles, and began “talking trash” to the victim. Several of the youths carried baseball bats, which they displayed in a menacing manner.

The State filed a petition for delinquency, and J.F.R. was adjudicated delinquent based on his being found guilty of aggravated assault with a weapon. However, the record reveals that the victim testified that he did not see J.F.R. carrying a weapon. Moreover, the trial court made a specific finding that J.F.R. did not possess a weapon. As a result, J.F.R.’s adjudication was necessarily premised on his status as a principal.

However, “[t]o be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” Watkins v. State, 826 So.2d 471, 474 (Fla. 1st DCA 2002). In the instant case, the only evidence of record describing J.F.R.’s actions that evening was the victim’s statement that J.F.R. was “[j]ust standing there with his friends talking trash.” This very general statement does not, without more, establish either that J.F.R. intended that the crime be committed or that he did some act to assist the other person in committing the crime. Because J.F.R. was thus improperly adjudicated delinquent based on this status as a principal, we reverse.

Reversed.

ALTENBERND and NORTHGUTT, JJ., Concur.