text:
    Harlan D. TERRY, Petitioner, v. BOARD OF TRUSTEES OF The CITY PENSION FUND FOR POLICE OFFICERS AND FIREFIGHTERS IN The CITY OF PEMBROKE PINES, Respondent.
    No. 4D02-3580.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Richard A. Sicking of Richard A. Sicking, P.A., Coral Gables, for petitioner.
    Stephen H. Cypen of Cypen & Cypen, Miami, for respondent.
   STONE, J.

Terry petitions for a writ of certiorari seeking review of an order of the circuit court, sitting in its appellate capacity, dismissing his amended petition for writ of certiorari. We grant the petition and quash the order.

Terry was a firefighter employed by the city of Pembroke Pines. In 1999, he was awarded a permanent total disability retirement by the board of trustees of the city pension fund. In that same year, Terry settled a related worker’s compensation claim against the city. Subsequently, the board attempted to coordinate Terry’s service incurred permanent total disability pension with the prorated value of his worker’s compensation settlement by reducing his service incurred disability pension from $2,794.26 to $2,359.32 for as many months as it took to recoup the entire worker’s compensation settlement of $72,500.00. In doing so, the board used a formula capping the combination of his disability and the prorated value of the settlement by his worker’s compensation average weekly wage at the time of the accidents at work.

Terry does not challenge the decision to impose an off-set. The dispute is over how to properly calculate the prorated value of his worker’s compensation claim and his disability pension. The circuit court, however, did not reach the pro-ration issue, as it interpreted the board order as a “legislative” decision and dismissed the certiorari petition for lack of jurisdiction. In doing so, the circuit court relied upon the authority of Stansberry v. City of Lake Helen, 425 So.2d 1157 (Fla. 5th DCA 1983), City of Cape Canaveral v. Rich, 562 So.2d 445 (Fla. 5th DCA 1990), and Board of County Commissioners of Manatee County v. Circuit Court of Twelfth Judicial Circuit for Manatee County, 433 So.2d 537 (Fla. 2d DCA 1983).

Each of the cases that the circuit court relied on apply the undisputed principle that certiorari will not lie to review legislative decisions. We do not deem those authorities applicable, however, as in this case, the board conducted a hearing and interpreted an ordinance, applying it to the unique facts of this case. In Rich, the order challenged by the petition for writ of certiorari found that city sewer impact fees were “arbitrary.” There, the Fifth District agreed with the city’s assertion that certiorari review was not available to challenge the validity of the ordinance, finding that the adoption of a sewage impact fee is a quasi-legislative function. See id. In Manatee County, the issue involved a petition to review a county resolution which established a schedule of rates to be paid for water and sewer services. In Stansberry, where there were no ordinances inhibiting the city’s discharge of employees, the Fifth District held that a determination to abolish a position and discharge an employee was legislative or executive action and not quasi-judicial.

In this case, unlike those applied by the circuit court, the board action was not legislative or executive, but was a quasi-judicial decision subject to judicial review. Therefore, the circuit court does have cer-tiorari jurisdiction. In Sun Ray Homes, Inc. v. Dade County, 166 So.2d 827 (Fla. 3d DCA 1964), the petitioner contended that a permit to erect a sign on a neighbor’s property was issued contrary to provisions of the county code. There, the court determined that the action of the board “was clearly quasi-judicial because it was a review of an interpretation, and an application, of an ordinance.” 166 So.2d at 829. Similarly, in City of St. Petersburg v. Cardinal Industries Development Corp., 493 So.2d 535, 537 (Fla. 2d DCA 1986), the property owner challenged the denial of an application for a special exception by a complaint for declaratory judgment. The Second District concluded that the proper method to attack the denial was by way of petition for certiorari.

In City of Fort Pierce v. Dickerson, 588 So.2d 1080 (Fla. 4th DCA 1991), the city ordered demolition of a house and the homeowners brought actions for declaratory and injunctive relief. The circuit court issued a temporary injunction and the city appealed. There, we recognized that the trial court did not have jurisdiction to entertain the complaint for declaratory relief because the commission’s action was quasi-judicial, and that it should be treated as a petition for writ of certiorari, explaining:

The first we must resolve is whether the trial court had jurisdiction to entertain the Dickersons’ complaint for declaratory and injunctive relief or whether the Dickersons should have sought review of the Commission’s resolution by a petition for writ of certiorari. To answer this question we must determine whether the Commission, in ordering the demolition of the Dickersons’ house, acted in a quasi-judicial or a quasi-legislative capacity. If the Commission acted in a quasi-judicial capacity, the proper method of review is by certiorari, but if the Commission’s action was quasi-legislative, the proper method of review is a suit in the circuit court for declaratory or injunctive relief. Walgreen Co. v. Polk County, 524 So.2d 1119, 1120 (Fla. 2d DCA 1988).
As reiterated in City of Boynton, a decision is quasi-judicial when notice and a hearing is required and the decision is contingent on a showing made at a hearing. City of Boynton Beach v. V.S.H. Realty, Inc., 443 So.2d 452, 454 (Fla. 4th DCA 1984). In the instant case, notice and hearing was prescribed by ordinance, and the decision to demolish the house was made based on testimony adduced at the hearing. Thus, we conclude that the resolution by the Ft. Pierce City Commission was quasi-judicial. Consequently, we agree with Ft. Pierce’s assertion that since the resolution was a quasi-judicial decision rendered by the Commission, it was reviewable only by petition for writ of certiorari, and not by a complaint for declaratory and injunctive relief.

Id. at 1081-82.

Here, the action of the board did not adopt a rule or ordinance of general application. Rather, it was an application and interpretation of existing rules to Terry in order to decide the modified amount of his benefits. Such is quasi-judicial action.

We do not decide the substantive issues raised in the circuit court petition and do not address the proper method of calculating Terry’s earnings or how to calculate a cap, applying Barragan v. City of Miami, 545 So.2d 252 (Fla.1989), in order to meet the pension ordinance requirements, as those issues were not reached by the circuit court order on review.

Therefore, the trial court shall reconsider Terry’s amended petition for writ of certiorari on its merits.

GUNTHER and KLEIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jerome WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1081.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 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 Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Lee v. State, 885 So.2d 1177 (Fla. 4th DCA 2002).

STONE, WARNER and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    Irv COHEN, as husband and as the Personal Representative of the Estate of Claire Cohen, Appellant, v. WEST BOCA MEDICAL CENTER, INC., d/b/a “West Boca Medical Center”, a Florida corporation, Tenet Healthsystems Hospitals, Inc., d/b/a “West Boca Medical Center”, a foreign corporation, Bruce Wishnov, D.O., an individual; Palmetto Park Medical Associates P.A., a Florida Professional Association; Leslie Jacob, M.D., an individual; Gastroenterology & Advanced Endoscopy Consultants, P.A., a Florida Professional Association; Lawrence Manaker, M.D., an individual; Harari & Diskin, M.D., P.A., d/b/a Boca Emergency Medicine Specialists, a Florida Professional Association; and Diskin & Harari, M.D., P.A., d/b/a Boca Emergency Medicine Specialists, a Florida Professional Association, Appellees.
    Nos. 4D02-712, 4D02-2175.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.

      Marjorie Gadarian Graham, of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Brian J. Glick of Glick Law Offices, Boca Raton, for appellant.
    Manuel R. Coraras and A. Russell Bobo of Bobo Ciotoli Bocchino & Newman, North Palm Beach, for appellees Bruce Wishnov, D.O. & Palmetto Park Medical Associates, P.A.
    David R. Cassetty of Restani, McAllister & Cassetty, P.A., Miami for appellees Leslie Jacob and Gastroenterology & Advanced Endoscopy Consultants, P.A.
   KLEIN, J.

The trial court dismissed medical malpractice cases against two physicians and their professional associations because plaintiff failed to comply with the statutory presuit procedures. We affirm.

As to the claim against Dr. Wishnov, plaintiff sent the notice of intent to initiate medical malpractice litigation on May 8, 2001. Dr. Wishnov served plaintiff with informal discovery by questionnaire, and requested production of documents on May 21, 2001. On June 27, 2001, Wishnov’s counsel faxed a letter to plaintiffs counsel asking when requested information would be received. On July 5, 2001 Wishnov’s counsel mailed a letter again requesting responses to presuit discovery, and the letter indicated that his secretary had called twice leaving messages to that effect.

On August 3, 2001, Wishnov’s counsel sent a certified letter denying the claim for failure to comply with presuit discovery requirements. On August 7, 2001, one day after the ninety day period provided by section 766.106, Florida Statutes (2000) expired, and the statute of limitations had run, plaintiffs counsel provided the information requested, with a cover letter acknowledging it was late. Plaintiffs counsel explained that he had assumed, because of an agreement for an extension with a lawyer for a different defendant, that he had additional time to provide the information to all defendants. The trial court found that plaintiff had unreasonably ignored requests for discovery and that plaintiffs counsel’s belief that he had additional time was unreasonable and unsupported by the facts.

As to Dr. Jacob, the notice of intent was also sent on May 8, 2001. The notice was accompanied by an affidavit of a nurse, who was not a medical expert under the requirements of section 766.203(2)(b), Florida Statutes. As with Dr. Wishnov, Dr. Jacob’s counsel requested the presuit information from time to time, but did not receive it until August 9, 2001, after the ninety day period had run. The trial court found that plaintiff had unreasonably failed to provide presuit discovery and had failed to provide the required corroborating medical expert opinion.

Plaintiff first argues that the trial court should not have dismissed these claims without an evidentiary hearing. There was, however, a hearing, but Mr. Glick, plaintiffs counsel, did not avail himself of the opportunity to either testify or formally submit documentary evidence. He was willing to have the trial court consider the documents, all of which came from either his office or defense counsel’s offices, and which contained everything on which the trial court’s order was based.

Those documents contained Mr. Glick’s explanation that he thought he did not have to comply with the ninety day period as to these two physicians because counsel for a different defendant had agreed to an extension of time. If Mr. Glick had wished to add to this explanation by testifying, he had the opportunity to do so, but apparently had nothing to add. We therefore reject this argument.

The primary argument advanced by plaintiff is that the defendants were not prejudiced and the trial court therefore abused its discretion. In all of the cases cited by plaintiff, however, such as Kukral v. Mekras, 679 So.2d 278 (Fla.1996) and Popps v. Foltz, 806 So.2d 583 (Fla. 4th DCA 2002), the statute of limitations had not run by the time the claimants had satisfied presuit requirements. As our supreme court explained in Kukral:

[Fjailure to comply with the presuit requirements of the statute is not necessarily fatal to a plaintiffs claim so long as compliance is accomplished within the two year limitations period provided for filing suit.

Kukral, 679 So.2d at 283; Hospital Corp. of America v. Lindberg, 571 So.2d 446 (Fla.1990).

In the present case, the alleged malpractice and resulting death occurred in February 1999. In January 2001, plaintiffs counsel filed for the automatic ninety day extension of the two year statute of limitations in order to conduct presuit investigation. When plaintiff furnished the statutorily required information, the statute of limitations had run.

We therefore conclude that, because there was no reasonable explanation for plaintiffs failure to comply with the pre-suit requirements, dismissal was proper. Tapia-Ruano v. Alvarez, 765 So.2d 942 (Fla. 3d DCA 2000)(affirming dismissal where statute of limitations had run and plaintiff provided no reason for failure to comply with the presuit requirements); Royle v. Florida Hospital-East Orlando, 679 So.2d 1209 (Fla. 5th DCA 1996)(same).

Affirmed.

GUNTHER and TAYLOR, JJ., concur.


author: GROSS, J.

text:
    PALM BEACH COUNTY SHERIFF, Ed Bieluch, Walter J. King, Alphonso A. Jackson, Bruce Lennis McCray, Vincent C. Gaines, and Walter W. Frymire, Appellants, v. STATE of Florida, Appellee.
    No. 4D01-2659.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.

      Fred H. Gelston of Fred H. Gelston, P.A., West Palm Beach, for appellant Palm Beach County Sheriff, Ed Bieluch.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellants Walter J. King, Alphonso A. Jackson, Bruce Lennis McCray, Vincent C. Gaines, and Walter W. Frymire.
    John J. Copelan, Jr., Fort Lauderdale, for appellee.
   GROSS, J.

The issue in this case is whether a sheriff is entitled to bring a writ of mandamus to recover expenses from the Department of Children and Families (the Department) when that agency fails to place or take custody of an incarcerated, incompetent criminal defendant after the fifteen-day period described in section 916.107(l)(a), Florida Statutes (2001). We hold that mandamus will not support the recovery of such expenses and affirm.

This case began with five criminal defendants determined to be incompetent to proceed, either because of mental retardation, pursuant to sections 916.106(12) and 916.302, Florida Statutes (2001), or mental illness pursuant to sections 916.106(11) and 916.12, Florida Statutes (2001). The trial court committed all five defendants to the Department for placement in a treatment facility.

On March 19, 2001, the five defendants separately filed emergency petitions for writs of habeas corpus seeking release from the Palm Beach County Jail on the ground that each was being illegally detained, because the Department had failed to take custody of them within fifteen days of commitment as mandated by section 916.107(l)(a). Alternatively, each defendant asked the trial court to issue a writ of mandamus to compel the Department to secure their placement in a treatment facility.

The Sheriff of Palm Beach County, Ed Bieluch, responded to the petitions, arguing that his office should not bear any financial responsibility for housing or caring for the defendants after the expiration of the fifteen-day period. The Sheriff cross-petitioned against the Department for a writ of mandamus (1) requiring the Department to immediately assume care of the defendants, (2) awarding attorney’s fees and costs under section 57.105, Florida Statutes (2001), and (3) forcing the Department to reimburse the Sheriff for all monies expended on housing and caring for the defendants, from the expiration of the fifteen-day period until their removal by the Department.

On March 28, 2001, the trial court conducted a consolidated evidentiary hearing on the defendants’ petitions. The Department presented evidence demonstrating that it did not have the available bed space to house either the mentally retarded or the mentally ill defendants, largely due to the lack of funding by the legislature. The Sheriff argued that the Department had failed to request additional funding for more bed space; that it had enough space to add beds; and that the Department was well aware of its statutory duty to add additional beds.

On March 30, 2001, the trial court denied the defendants’ petitions for writs of habeas corpus and granted their request for a writ of mandamus against the Department. Relying on Miller v. Carson, 524 F.Supp. 1174 (M.D.Fla.1981), and Pierce County Office of Involuntary Commitment v. Western State Hospital, 97 Wash.2d 264, 644 P.2d 131 (1982), the trial court concluded that the lack of bed space did not justify the Department’s refusal to take custody of the defendants.

The trial court rejected the Department’s argument that it could not comply with such an order. The court concluded that it was possible to expand bed space; that the Department had chosen not to budget funds to build room for bed expansion; that the Department had not exhausted its mental health budget for the fiscal year; that the Department was able to seek emergency funding; and that the Department had shown only that it was inconvenient or impractical for it to assume custody of the defendants.

Thus, the Department was ordered to immediately advise the Sheriffs Office where to deliver the defendants, and that if the Department failed to do so, the Sheriffs Office would deliver the defendants to the Florida State Hospital in Chattahoochee on April 2, 2001.

The Department immediately moved for an emergency stay of the order pending appeal. However, since it was able to place each defendant in a treatment facility, it did not appeal the trial court’s order.

On May 17, 2001, the trial court held a hearing on the Sheriffs cross-petition for writ of mandamus seeking attorney’s fees and costs, and “reimbursement” for the cost of housing and caring for the defendants from day sixteen until the day the Department assumed custody of the defendants.

On May 24, 2001, the trial court denied the Sheriffs request for reimbursement. It held that ordering reapportionment of funds from the Department to the Sheriff would infringe upon the legislature’s exclusive authority to appropriate funds. Relying on Miller, the court also ruled that regardless of the term used to define such a transfer, “the remedy sought by Sheriff Bieluch is in essence a request for monetary damages” which lacked any statutory authorization.

We affirm the ruling of the trial court.

Mandamus is a narrow remedy which does not allow a court to reach into the legislative sphere and reallocate funds between local and state governments. As the supreme court has written:

Florida law is well settled that mandamus may be used only to enforce a right that is both clear and certain. Mandamus may not be used to establish the existence of such a right, but only to enforce a right already clearly and certainly established in the law.

Fla. League of Cities v. Smith, 607 So.2d 397, 400-01 (Fla.1992) (citations omitted).

The Sheriffs right to reimbursement is neither clear nor certain. As the Department points out, Chapter 916 “establishes no rights in the Sheriff,” but protects committed defendants’ rights as delineated in Chapter 916. The Sheriff cites no statute that clearly authorizes the type of relief he seeks.

We agree with the trial court’s reliance on Miller, which rejected a request by various cities for money damages from the Department for expenses incurred as a result of the Department’s failure to meet its responsibility to take custody and care for prisoners who had been declared mentally incompetent to stand trial. 524 F.Supp. at 1182. Miller held that the doctrine of sovereign immunity barred the cities’ request for damages. The court wrote:

Article X, Section 13 of the Florida Constitution incorporates the common law doctrine of sovereign immunity, authorizing the state to waive immunity by general law if it so desires. The legislature accepted this invitation by enacting [section 768.28, Florida Statutes (1979)], which permits persons to sue the state for any tort committed by an employee of a state agency or subdivision while acting within the scope of his employment.
A reading of Section 768.28 leads the Court to the conclusion that the Florida Legislature did not intend the statute to encompass actions for injuries sustained by a municipality as a result of acts or omissions attributable to a state agency. Rather, the statute focuses upon more mundane types of torts, i.e., those causing property damage, personal injury or wrongful death. That this is true is apparent from ... Section 768.28(1), which provides that the state shall be liable only if a private person would be liable under the same circumstances in accordance with the general law of the state. Obviously, there is no set of facts under which a private person could be liable to the City Defendants for refusing to take custody of mentally incompetent inmates committed to [the Department].
With the exception of Section 768.28, there is no provision of Florida law that would even arguably confer authority upon this Court to award money damages to the City Defendants.

Id. at 1182.

The Sheriff tries to avoid the sovereign immunity aspect of Miller by describing the requested relief not as “damages,” but as a “reimbursement” or “recovery” of expenses, an exercise that recalls George Orwell’s description' of words that fall “upon the facts like soft snow, blurring the outlines and covering up all the details.” GeoRge ORWell, Politics and the English Language, in Inside The Whale 143, 153-54 (1957). For the purpose of applying sovereign immunity, there is no distinction between the “damages” sought in Miller and the “reimbursement” or “recovery” of expenses pursued in this case.

Finally, the relief sought by the Sheriff violates the separation of powers doctrine. It is not the role of the judiciary to juggle the books of government agencies. An order requiring the Department to reimburse the Sheriff would interfere “with both legislative discretion in determining the funds required of an agency and executive discretion in spending those appropriated funds....” Dep’t of Juvenile Justice v. C.M., 704 So.2d 1123, 1125 (Fla. 4th DCA 1998); see also Dep’t of Children & Family Servs. v. Birchfield, 718 So.2d 202 (Fla. 4th DCA 1998) (holding that the “trial court violated the separation of powers doctrine in considering the [Department’s] ability to move funds in order to comply with its mandate”); Dep’t of Health & Rehabilitative Servs. v. State, 593 So.2d 328 (Fla. 5th DCA 1992) (observing that “it is not the judiciary’s role to revise legislative appropriations”).

AFFIRMED.

MAY, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.


text:
    Anthony KOVALESKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D98-4288.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.

      Anthony Kovaleski, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   APPELLANT’S MOTION FOR REHEARING, REHEARING EN BANC, OR CLARIFICATION AND APPELLEE’S MOTION FOR REHEARING OR CERTIFICATION

PER CURIAM.

We deny appellant’s Motion as to Rehearing and Rehearing En Banc. We deny appellee’s Motion for Rehearing or Certification. We grant appellant’s Motion for Clarification, and as a result, withdraw our previous opinion and substitute the following opinion in its place.

Anthony Kovaleski (Kovaleski) was convicted of one count of committing a lewd, lascivious, or indecent act upon a child under sixteen years of age and one count of committing a lewd, lascivious, or indecent act in the presence of a child under sixteen years of age. § 800.04, Fla. Stat. (1997). Kovaleski raised twelve points on appeal of these convictions. We need only address one of these points in this opinion, as the other eleven points raised were deemed without merit. Concerning that one point, we agree with Ko-valeski’s assertion that his constitutional right to a public trial was violated. We reject the State’s argument that he failed to timely object to the continued closure of the courtroom.

Originally, the courtroom was partially closed under Florida Statutes section 918.16, which allows for closure to all but specified necessary individuals during the period when a victim of a sex offense under sixteen years of age is set to testify. When the victim took the stand, it became clear that the victim had turned sixteen, so that he was no longer under sixteen as the statute required. The trial judge immediately called a bench conference upon recognizing this discrepancy.

Appellate review is difficult in this case due to the very poor quality of the transcription of the pertinent parts of the record. During the bench conference after the prosecutor agreed that the statute did not apply, Kovaleski’s counsel queried: “Should the bailiff make an announcement in the hall — .” A reasonable interpretation of this sentence is that Kovaleski’s counsel wanted the courtroom reopened as the grounds for closure were no longer applicable.

Before this question could be answered, the prosecutor requested that the trial judge, by his discretion, allow the courtroom to remain closed based on the nature of the events to be testified about by the victim. The trial judge responded: “— since I already have, we’ll just leave it that way.” The judge made this statement without conducting a hearing or making any findings indicating closure was appropriate.

Again during the bench conference, Ko-valeski’s counsel made some sort of objection: “(Inaudible) objection. I don’t think the people should — .” The trial judge replied: “(Inaudible) a big problem with it, but anyway, to bring it to your attention that it didn’t apply.” Reviewing these statements in context, we conclude that Kovaleski’s counsel was objecting to the continued closure of the courtroom and that the judge indicated he did not have a problem with keeping the courtroom closed, regardless of the inapplicability of the statute.

We strain to decipher the record in this case even though it is unquestionably the appellant’s responsibility to arrange for the preparation and transmission of the record to this Court under Florida Rule of Appellate Procedure 9.200(e). But Kovale-ski, while fulfilling this responsibility, should not be penalized for record inadequacies due to malfunctioning transcription equipment. This is especially so because in this case the transcript is riddled with inaudible and garbled testimony, and Ko-valeski attempted to clarify the record by filing motions in both this Court and the trial court seeking the reconstruction of the record.

At the hearing on the motion to reconstruct the record of the bench conferences, the trial court determined that, despite the partial-inaudibilities, the thrust of the parties’ arguments was clear so as to obviate the need for reconstruction. Significantly, the trial court did not find that Kovaleski had failed to make timely objections. Once the trial court found no need for reconstruction, logically it follows that the trial court deemed Kovaleski’s partially-inaudible objections and arguments on the record to be sufficiently clear for appellate review.

This case is controlled by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1992), and Pritchett v. State, 566 So.2d 6 (Fla. 2d DCA 1990). Waller requires a trial judge to establish four prerequisites for closure to be appropriate: (1) the party seeking closure must state an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect compelling State interests, (3) the trial judge must consider reasonable alternatives to closure, and (4) the trial judge must make findings adequate to support the closure. Waller, 467 U.S. at 48.

Based on what transpired in this case, we conclude that the defendant timely objected to the continued closure of the courtroom, and thus, the trial court erred by failing to conduct a Waller hearing and make findings supporting closure.

REVERSED AND REMANDED FOR A NEW TRIAL.

GUNTHER, KLEIN and TAYLOR, JJ., concur.

      . The Second District, in Pritchett, suggested that a Waller inquiry is required even in partial closure cases.


text:
    Steven Donald JAFFE, Appellant, v. Marcia Specter JAFFE, Appellee.
    No. 4D02-4903.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    José D. Sosa and Brian J. Cooke of Arnstein & Lehr, West Palm Beach, for appellant.
    Denise C. Desmond of Weissman, Yaffa and Desmond, P.A., West Palm Beach, for appellee.
   GROSS, J.

We affirm the temporary relief order under review. The husband complains about not having a full opportunity to be heard. The court granted the wife’s motion to extend the hearing to an hour. The transcript reveals that the court expended one hour and forty minutes at the temporary relief hearing. The court heard testimony, including that of both parties’ accountants. A court has wide latitude in controlling the testimony at temporary relief hearings; otherwise, these hearings would expand into the invasion of Normandy, consume the court’s time, produce judicial gridlock, and prevent it from disposing of the many other cases in the family division. See Mullins v. Mullins, 799 So.2d 450, 451 (Fla. 4th DCA 2001). We find the wife’s proposed litigation budget of $506,579.76 to be grossly excessive for this case, assuming that there is no conduct on the part of the husband after the temporary relief hearing that justifies such expenses. See, e.g., Tomaino v. Tomaina, 629 So.2d 874, 875 (Fla. 4th DCA 1993) (noting that fees of $50,000 to $200,000, in the context of litigating a divorce through trial “are not unusual.”). However, the trial court’s award of $100,000 as temporary fees and costs was reasonable and not an abuse of discretion.

KLEIN and SHAHOOD, JJ., concur.


text:
    Juan TRAVIESO, Appellant, v. Susan C. TRAVIESO, Appellee.
    No. 4D03-300.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Juan Travieso, Fort Lauderdale, pro se.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). With respect to appellant’s claim regarding the invalidity of his marriage, our affirmance is without prejudice to this issue being raised in the trial court.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Thomas POLKOWSKI, Appellant, v. Laurie POLKOWSKI, Appellee.
    No. 4D02-2817.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Mitchell Haymes of Law Offices of Glantz & Glantz, P.A., Plantation, for appellant.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Steven L. Berzner of Steven L. Berzner, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The effect of state boundaries on a court’s jurisdiction over property to be distributed in a dissolution proceeding frames the issue in this appeal. The husband challenges the final judgment dissolving his marriage and distributing the marital property. He raises two issues on appeal. First, the husband argues that the trial court lacked the authority to order the partition of the marital residence located in Plantation, Florida. Second, he argues that the trial court lacked jurisdiction to order the sale of real property located in North Carolina. We reverse that portion of the final judgment ordering the sale of the North Carolina property and affirm in all other respects.

The final judgment provides, “The real property located in Murphy, North Carolina shall be sold and the net proceeds of the sale shall be equally divided by the parties.” Like lines in the sand, state boundaries determine a court’s jurisdiction over real property. In this case, the trial court lacked in rem jurisdiction over the North Carolina property. It erred in that portion of the final judgment ordering the partition and sale of the North Carolina property. See Pawlik v. Pawlik, 545 So.2d 506, 507 (Fla. 2d DCA 1989); see also Sammons v. Sammons, 479 So.2d 223, 225 (Fla. 3d DCA 1985); Farley v. Farley, 790 So.2d 574 (Fla. 4th DCA 2001).

We therefore reverse the judgment in part and remand the case to the trial court. Upon remand, the court may reconsider the distribution of all marital assets in light of this opinion. See Pawlik, 545 So.2d at 507.

Affirmed in part, reversed in part, and remanded.

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


author: PER CURIAM. KLEIN, J.,

text:
    Todd S. GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4887.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Carey Haughwout, Public Defender, and. Ian Seldin, 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.

We affirm the commitment order entered under section 394.917(2), Florida Statutes (2001), the “Jimmy Ryce Act.” The only issue appellant raises is whether the court erred in not instructing the jury that the state had to prove that appellant has serious difficulty in controlling his dangerous behavior. We affirm based on Westerheide v. State, 831 So.2d 93 (Fla.2002), but certify the same question certified as one of great public importance in Lee v. State, 854 So.2d 709, 716, 2003 WL 21946444 (Fla. 2d DCA Aug.15, 2003), which is:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

GUNTHER and GROSS, JJ., concur.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

In Westerheide our supreme court construed Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), in which the United States Supreme Court held that there must be proof of “serious difficulty” in controlling behavior. Westerheide, 831 So.2d at 107. The Florida Supreme Court found no error in the jury instructions in Westerheide because it concluded that the jury instruction given was close enough to the proof necessary under Crane:

While the instruction does not use the words ‘serious difficulty’ in controlling behavior, it conveys this meaning. We accordingly find no constitutional infirmity in this instruction.

Westerheide, 831 So.2d at 109.

It thus appears to me that although Westerheide does not require the serious difficulty in controlling behavior language, it actually supports the giving of such an instruction. Trial judges, in my opinion, would be well advised to give the instruction, even though Westerheide does not require it at the present time, because the United States Supreme Court has not yet addressed jury instructions in these cases. I don’t see how anyone could object to such an instruction, since it would be consistent with the burden of proof established in Crane, and it could obviate the need for a new trial if the United States Supreme Court ultimately holds that such an instruction is necessary.


text:
    Ron HOWARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-686.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2003.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   PER CURIAM.

The defendant, Ron Howard, filed a motion pursuant to section 3.800(b) to correct his sentence. On February 27, 2003, the trial court entered a corrected sentencing order. However, as the defendant correctly argues, the corrected order failed to grant the defendant any jail and prison credit. Therefore, this cause is remanded for entry of a sentencing order crediting the defendant with the 276 days spent in jail and for the time spent in prison. See Ryan v. State, 837 So.2d 1075 (Fla. 3d DCA 2003); Baker v. State, 756 So.2d 1091 (Fla. 3d DCA 2000). Finally, as to Count II, the judgment of conviction references section 775.087. However, a review of the jury’s verdict indicates that the jury did not find that the defendant either carried, displayed, or used a firearm or weapon during the burglary. As such, this cause is also remanded for the purpose of deleting the reference to section 775.087 in the judgment of conviction.

Remanded.


text:
    FISHER ISLAND HOLDINGS, INC., Appellant, v. Bernard KORMAN, etc., Appellee.
    Nos. 3D03-2144.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2003.

      Greenberg Traurig and Alan T. Dimond and Elliot H. Scherker and Elliot B. Kula, Miami, for appellant.
    Phillips, Eisenger, Koss & Rosenfeldt (Hollywood); Broad & Cassel and David A. Freedman, Miami, for appellee.
    Before COPE, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Fisher Island Holdings, Inc. [Holdings] appeals from a non-final order in favor of Bernard J. Korman, etc. That order extended the voting period for determining Fisher Island Club [Club] members’ approval of Club’s offer to purchase certain unimproved property on Fisher Island. We affirm.

We find, however, that the order entered by the trial court is in the nature of an injunction, and Holdings is entitled to all of the protections of such, including the protection of a bond. We therefore remand with instructions for the trial court to commence proceedings consistent with this opinion, and to enter an order that satisfies all of the requirements of a temporary injunction, in accordance with Florida Rule of Civil Procedure 1.610, including the requirement of a bond.

Affirmed, but remanded for further proceedings consistent herewith.


author: STONE, J.

text:
    William BYNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1119.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

STONE, J.

We deny Bynes’ motion for rehearing. However, we withdraw the opinion issued July 30, 2003, and substitute the following:

Bynes was sentenced as a violent career criminal to concurrent terms of forty years for the offenses of fleeing and eluding and aggravated assault on a law enforcement officer and to fifteen years for resisting arrest with violence and grand theft.

On appeal, he asserts that the violent career criminal statute is unconstitutional as applied because his prior felony convictions for burglary of an unoccupied conveyance were not violent crimes. We conclude that burglary of an unoccupied conveyance was included as a qualifying offense under the statute and that the effect is not unconstitutional. We, therefore, affirm Bynes’ conviction and sentence as a violent career criminal.

Any defendant who has previously been convicted as an adult three or more times for a forcible felony as described in section 776.08 must be sentenced as a violent career criminal. § 775.084(l)(d), Fla. Stat. (2001). Under section 776.08, a “forcible felony” consists of:

treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

§ 776.08, Fla. Stat. (emphasis added) To the extent that the term “burglary,” in the definition of “forcible felony” includes any burglary, even that of an unoccupied conveyance, Bynes argues that the violent career criminal statute is unconstitutionally over-inclusive.

We agree, however, with the Third District’s interpretation of the forcible felony statute. In Rodriguez v. State, 826 So.2d 464, 466 (Fla. 3d DCA 2002), the Third District determined that the phrase, “involves the use or threat of physical force or violence against any individual” cannot rationally be read as a limitation on all of the crimes previously listed in the forcible felony statute. Id.; see also Delsol v. State, 837 So.2d 428, 429 (Fla. 3d DCA 2002).

We review the constitutionality issue in light of the rational basis standard. Shapiro v. State, 696 So.2d 1321, 1326-27 (Fla. 4th DCA 1997). The rational basis test requires the legislature to have a legitimate purpose for enacting the statute and to select means which have a reasonable and substantial relation to its purpose which are not unreasonable, arbitrary, or capricious. State v. Saiez, 489 So.2d 1125, 1128 (Fla.1986).

The legislative purpose of the violent career criminal statute is set out in section 775.0841:

The Legislature finds a substantial and disproportionate number of serious crimes are committed in Florida by a relatively small number of repeat and violent felony offenders, commonly known as career criminals.... The Legislature intends ... to incarcerate them for extended terms; and, in the case of violent career criminals, such extended terms must include substantial mandatory minimum terms of imprisonment.

The legislative intent expressed in section 775.0841 applies to all career criminals and violent career criminals. This includes, in order from least severely punished to most severely punished: habitual felony offenders (two prior felonies), habitual violent felony offenders (one prior enumerated felony), three-time violent felony offenders (two prior enumerated felonies), and violent career criminals (three prior enumerated felonies). See § 775.084(a)-(d), Fla. Stat. (2001); Fla. H.R. Comm, on Crime and Punishment, CS/HB 121, Final Analysis (June 22, 1999). Notably, the prison releasee reof-fender statute, also in chapter 775, does not include simple burglary as a predicate offense, but does include “Armed burglary; [and] ... Burglary of a dwelling or burglary of any occupied structure.” § 775.082(9)(a)l. p. and q., Fla. Stat. (2001) (emphasis added).

Bynes could not have been sentenced as a prison releasee reoffender, a three-time violent felony offender or a habitual violent felony offender because those statutes do not list “burglary” as one of the qualifying offenses. See § 775.084(l)(b)l.m. and (c)l.m., Fla. Stat. (2001). Simple burglary is included only in the sentencing enhancement available for violent felons. Nevertheless, the inclusion is rationally related to the legislature’s goal of punishing career felony offenders who have previously been convicted of three enumerated felonies at the time of sentencing. As such, these repeat offenders face a harsher punishment than the felony offenders who have not committed the requisite number of enumerated felonies.

To conclude that burglary cannot be a “violent” felony when the structure or conveyance being burglarized is unoccupied would substitute this court’s opinion for the expression of the legislature. To do so, we would have to hold that generic burglary of an unoccupied conveyance or structure is, per se, not a violent crime. We decline to make this determination. Further, the United States Supreme Court has recognized the inherent violence present in all burglaries in reading a generic burglary definition into the federal sentence enhancement statute:

The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate. And the offender’s own awareness of this possibility may mean that he is prepared to use violence if necessary to carry out his plans or to escape. Congress apparently thought that all burglaries serious enough to be punishable by imprisonment for more than a year constituted a category of crimes that shared this potential for violence and that were likely to be committed by career criminals. There never was any proposal to limit the predicate offense to some special subclass of burglaries that might be especially dangerous, such as those where the offender is armed, or the building is occupied, or the crime occurs at night.

Taylor v. U.S., 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). As the Supreme Court’s opinion demonstrates, it is not unreasonable or irrational to equate simple burglary with a violent felony.

Legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. See Robinson v. State, 804 So.2d 451, 453 (Fla. 4th DCA 2001). We hold that the violent career criminal statute is rationally related to the legislative purpose of treating those who have made a career out of committing the designated felonies more severely than others.

As the Supreme Court did in Taylor, 495 U.S. at 588, 110 S.Ct. 2143, we, too, reject the idea that the legislature had meant to adopt an approach that would require the sentencing court to engage in a fact-finding process regarding the violent nature of the defendant’s prior offenses.

In fact, the legislature was aware that the violent career criminal statute encompassed a broader array of crimes than the other sentencing enhancement statutes, as is evidenced by the bill analysis for the three-strikes violent felony offender statute, which reads:

[T]he career criminal enhanced penalty allows more types of offenses to be counted towards the number of priors necessary before the enhanced penalty may be imposed. The crimes that may be counted under career criminal but not three-strikes include: burglary, escape, possession of a firearm by a convicted felon, and lewd, lascivious, or indecent assault upon or in the presence of a child.

Fla. H.R. Comm, on Crime and Punishment, HB 121, Bill Analysis & Econ. Impact Statement (Feb. 4,1999).

We, therefore, conclude that the legislature intended to include the crime of burglary, including that of an unoccupied conveyance, as a predicate offense under the violent career criminal statute and that the inclusion of simple burglary does not render the statute unconstitutional. As to all other issues raised, we also find no reversible error or abuse of discretion.

GUNTHER and STEVENSON, JJ., concur.

      . Other qualifying offenses include aggravated stalking, aggravated child abuse, aggravated abuse of an elderly or disabled adult, lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, lewd or lascivious exhibition, escape, and a felony violation of chapter 790 involving the use or possession of a firearm.


text:
    John Edward LARSEN, Appellant, v. Eva LARSEN, Appellee.
    No. 4D03-1716.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    John Edward Larsen, Plantation, Pro se.
    No appearance for Appellee.
   PER CURIAM.

The former husband, John Larsen, appeals a non-final order from the circuit court holding him in contempt for fading to pay child support. Having earlier stayed the proceedings below, we reverse that portion of the circuit court’s order which held him in contempt and set a purge amount.

In March 2003, Larsen’s former wife sought to hold him in contempt for failing to make his January and February support payments. The matter was referred to a General Master. On April 1, 2003, the General Master issued its report, finding Larsen to be in contempt of the trial court’s order requiring him to pay $933 in monthly child support. The General Master determined that he willfully failed to comply with the court’s order and recommended that the court impose a purge amount of $1,638.25. On May 1, 2003, the trial court approved the General Master’s Report and adopted its recommendation as its order, which included Larsen’s possible arrest for contempt in the event he failed to pay the purge amount. The court also acknowledged the mandatory income deduction provision of section 61.1301, Florida Statutes, and directed payment to the Support Enforcement Division.

Shortly thereafter, Larsen sought a writ of prohibition from this court to prevent his incarceration for contempt. Larsen subsequently filed Objections to the Income Deduction Order in the circuit court and a Motion to Clarify the court’s order, given his employer’s deduction of support from both his income and expense reimbursements.

Upon receipt of Larsen’s petition for writ of prohibition, we stayed the proceedings below, prohibiting any further incar-cerative action, and redesignated his petition as an appeal from a non-final order entered after final judgment pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). We permitted the former wife to file a brief, but she faded to do so. The circuit court, having earlier scheduled a hearing on Larsen’s Objections to the Income Deduction Order and Motion for Clarification, cancelled the hearing given our stay. Thereafter, Larsen filed motions in this court requesting that we quash the income deduction order, stay any further garnishment of his wages pending a hearing, and clarify whether the lower court may hold a hearing on his Objections to the Income Deduction Order.

Having reviewed the record, we conclude that there was no substantial, competent evidence to support the trial court’s finding that Larsen had the ability to pay child support in the months of January and February 2003. See Cleveland v. Cleveland, 841 So.2d 648 (Fla. 4th DCA 2003)(holding that no substantial, competent evidence supported finding that father had the ability to pay child support arrearages). We have construed Florida Family Law Rule of Procedure 12.615(d)(1) as requiring the trial court to actually identify the sources from which the contemnor could obtain the funds to comply with a prior support order. See Vazquez v. Vazquez, 827 So.2d 384 (Fla. 4th DCA 2002).

The General Master’s Report recognized that Larsen lost his job as a commercial pilot on December 16, 2002, and that he was recalled by his employer on January 27, 2003, on a reduced schedule. Yet, the General Master’s Report implicitly determined that Larsen was able to pay support in January and February as “he is working an average of 40 + hours per week.” The transcript of the hearing held before the General Master shows that the former wife’s counsel acknowledged that Larsen was current in his support payments through December 2002, although he had accrued earlier arrearages prior to the parties’ July 2002 agreement concerning payment of his past support arrearages. Although Larsen testified that he was in fact averaging 40+ hours per week in March, the General Master’s report provides no “recital of facts” establishing that he had the present ability to pay support in January and February. See Fla. Fam. L.R.P. 12.615(d)(l)(requiring the court’s order to “contain a recital of the facts on which these findings are based”). Rather, the report merely stated in conclusory fashion that Larsen had the ability to pay support and willfully failed to do so.

Florida Family Law Rule of Procedure 12.615(e) also states that an order providing for incarceration as a coercive sanction for civil contempt shall not only set a purge amount, but also include “a separate affirmative finding that the con-temnor has the present ability to comply with the purge and the factual basis for that finding.” Again, the General Master’s Report failed to make a separate affirmative finding that Larsen had the ability to comply with the purge. See Bickis v. Broward County Sheriff, 763 So.2d 487 (Fla. 4th DCA 2000).

We, therefore, reverse those portions of the circuit court’s order adopting the General Master’s finding that Larsen willfully failed to comply with the court’s July 24, 2002 order having had the ability to do so, and recommending that he be incarcerated for contempt until he pays the required purge amount. No motion for rehearing shall be entertained. The Clerk is directed to issue a mandate simultaneously with this opinion so that the circuit court may proceed with its hearing on Larsen’s Objections to the Income Deduction Order and Motion to Clarify. In light of our decision, we dismiss the Motion to Quash Income Deduction Order and Motion to Clarify our initial order as moot.

STEVENSON, HAZOURI and MAY, JJ., concur.


author: L CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Patrick KENNEDY.
    No. 2003-KK-2269.
    Supreme Court of Louisiana.
    Aug. 14, 2003.
   In re Kennedy, Patrick; — Defendant; Applying for Reconsideration of an Order of this Court dated August 12, 2003, Parish of Jefferson, 24th Judicial District Court Div. “0”, Nos. 98-1425; to the Court of Appeal, Fifth Circuit No. 2003-K-881.

h Reconsideration denied.

CALOGERO, C.J., concurs in the denial and assigns reasons.

L CALOGERO, Chief Justice,

concurs in the denial and assigns reasons.

My outset reservation in this case was a concern that the denial of the defendant’s stay request and of his writ application might be viewed as blessing the merits of the state’s position on the issue presented. Nonetheless, I agreed with the disposition denying the writ application because a writ denial would not foreclose the defendant from raising the issue on appeal should he be convicted and the death penalty be imposed. In the denial of the defendant’s application for reconsideration, I perceive that the majority is of a similar mind-set with regard to the defendant’s ability to re-raise the issue on appeal. In hindsight, now that the defendant cites an Oregon appeals court case that purports to support his argument on the ex post facto issue, I would have preferred that the court had taken up the case to resolve the issue prior to commencement of trial. Notwithstanding, I concur in the denial of the application for reconsideration because a majority of this court has declined to consider applications for reconsideration of writ denials in interlocutory criminal matters, citing La. Sup.Ct. Rule IX, Section-6, even though I have previously indicated that I am of the opinion that an application for reconsideration would be available in such circumstances. See, e.g., State v. Jones, 466 So.2d 453 (La.1985) (Calogero, J, dissenting); State v. Brown, 365 So.2d 228 (La.1978) (Calogero, J., dissenting).


text:
    In re CONFIDENTIAL PARTY.
    No. 2003-OB-2257.
    Supreme Court of Louisiana.
    Aug. 14, 2003.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status, and the report and recommendation of the hearing committee,

IT IS ORDERED that respondent be and he hereby is permitted to maintain an active law practice, supervised by a practice monitor appointed by the disciplinary board, subject to the condition that he must fully and completely adhere to all terms of the two-year recovery agreement he entered into with the Lawyers Assistance Program on July 1, 2003. The Office of Disciplinary Counsel shall monitor respondent’s compliance with his recovery agreement and notify this court of any violation, which may be grounds for immediately transferring respondent to disability inactive status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

JOHNSON, J., would transfer Respondent to disability inactive status.

TRAYLOR, J., dissents.

/s/ Jeannette T. Knoll Justice, Supreme Court of Louisiana


author: hPER CURIAM.

text:
    In re Winthrop G. GARDNER.
    No. 2002-B-2753.
    Supreme Court of Louisiana.
    Sept. 5, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This attorney disciplinary proceeding arises from twenty-six counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Winthrop G. Gardner, an attorney licensed to practice in Louisiana, but currently suspended from practice.

UNDERLYING FACTS

Boutwell Matter

Thomas Boutwell owned a company known as Bank Card Systems of Louisiana, Inc. (“BCS”), a business which provides equipment which allows merchants to accept credit cards. BCS in turn had a business relationship with Merchant Payment Services (“MPS”) concerning the issuance and use of credit card machines.

In July 1993, Mr. Boutwell retained respondent to represent him in connection with a dispute with MPS. Respondent charged Mr. Boutwell a flat fee of $750, which Mr. Boutwell paid in three installments. This legal matter was resolved by respondent to Mr. Boutwell’s satisfaction.

Thereafter, in April 1994, Mr. Boutwell experienced additional problems with MPS. Mr. Boutwell contacted respondent, who agreed to represent him in the dispute. Mr. Boutwell agreed to pay respondent an initial retainer fee of $2,500, an additional $2,500 if litigation was necessary, and a contingency fee of one-third of any amounts recovered by respondent from MPS. Despite the presence of the contingency fee | ¡¡arrangement, there was no written employment contract between respondent and Mr. Boutwell.

Mr. Boutwell also retained respondent to represent him in connection with a matter involving one of Mr. Boutwell’s former employees, David Dixon. The parties agreed to an initial flat fee of $2,500 to handle the matter up to litigation and a contingency fee of one-third of any amount recovered by way of judgment or settlement. Again, the parties did not sign a written contract.

At some point, the parties discussed the possibility of obtaining a credit card on BCS’s corporate account in respondent’s name which respondent could use for litigation expenses. Mr. Boutwell agreed to obtain a credit card for respondent, but later testified it was his understanding the credit card would be used for litigation expenses and fees only, and he did not intend for respondent to use the card for personal expenses.

On July 1, 1994, Mr. Boutwell had an American Express credit card on BCS’s account issued in respondent’s name. During the eight-month period between July 1, 1994 and March 30, 1995, respondent charged a total of $38,894.14 in purely personal expenses on the credit card.

While respondent did not dispute these charges were his personal responsibility, he sought to offset some of the personal charges against legal fees* purportedly owed by Mr. Boutwell. Specifically, upon receipt of each monthly credit card bill, respondent would reimburse Mr. Boutwell for a portion of the charges, leaving the 13remainder of the bill for Mr. Boutwell to pay as an offset against respondent’s legal fees. However, respondent provided no accounting or documentation supporting his legal fees.

After several months, Mr. Boutwell became concerned about the high balance on respondent’s credit card and respondent’s failure to provide an accounting of his legal fees. Mr. Boutwell did not close the American Express account, but wrote a letter to respondent and respondent’s wife asking that they stop using the credit card for their personal expenditures.

In February 1995, respondent gave three checks to Mr. Boutwell, totaling more than $21,000, as reimbursement for respondent’s personal expenses charged on the American Express card. These checks (two of which were drawn on respondent’s client trust account) were returned for insufficient funds. As a result, Mr. Boutwell | retrieved the credit card from respondent in late February 1995, after respondent had already charged more than $7,500 that month.

On March 3, 1995, Mr. Boutwell discharged respondent and requested payment for the outstanding amount owed on the credit card. When respondent failed to fully cooperate, Mr. Boutwell filed the instant disciplinary complaint, alleging respondent owed more than $22,500 for the credit card expenditures. Mr. Boutwell also filed a complaint against respondent with the district attorney’s office based on the worthless checks. Respondent ultimately entered into an agreement with the district attorney’s office whereby he made good on the checks and paid the February 1995 credit card bill of $7,544.62. Additionally, Mr. Boutwell retained counsel, who requested that respondent provide written itemized accountings to substantiate his numerous claims of legal fees and expenses. Again, respondent did not fully comply with the request.

Myles Matter

In March 1995, Delores Myles retained respondent to file an appeal on behalf of her son, who had been convicted of second-degree murder. Respondent and Ms. Myles agreed to a flat fee of $8,500; however, no written contract or other documentation exists concerning the fee. Ms. Myles paid respondent $2,215 over a period of time.

Thereafter, respondent did nothing in the case. Ms. Myles filed a complaint with the ODC. Respondent assured her he would file the appeal if she would withdraw the complaint. Although Ms. Myles withdrew her complaint, respondent failed to file the appeal. As a result, Ms. Myles was required to retain new counsel to file the appeal. Respondent failed to account for or refund the unearned fee.

| sBrumfield Matter

In January 1995, the New Orleans Pro Bono Project retained respondent to handle a redhibition case on behalf of Georgia Brumfield relative to her purchase of a house. Ms. Brumfield paid respondent $250 for court costs. Respondent filed suit on Ms. Brumfield’s behalf, but withheld service in an attempt to amicably resolve the matter.

Thereafter, Ms. Brumfield attempted to contact respondent by telephone on numerous occasions to discuss the status of her case, but had difficulty getting him to return her calls. In November 1995, opposing counsel made an offer to settle the case, but respondent never communicated this offer to his client. Approximately one year later, respondent made an offer of settlement to opposing counsel. It is unclear whether this offer was authorized by Ms. Brumfield. In any event, the matter was never resolved.

Warren Matter

In November 1996, Ester Lee Warren paid respondent $5,000 to represent her step-granddaughter, Kimberly Sims, in criminal proceedings involving charges of attempted first-degree murder and armed robbery. After being retained, respondent visited Ms. Sims in jail and discussed the matter on one occasion with the Washington Parish assistant district attorney assigned to the case.

Thereafter, respondent took no further action in the case. He never appeared on Ms. Sims’ behalf in a court proceeding, and the Washington Parish Public Defender’s Office represented Ms. Sims to the conclusion of the matter. Subsequently, respondent refused to return any portion of the fee paid by Ms. Warren.

1 sSmith Matter

In September 1996, Catherine Smith paid respondent $1,000 to file a suit against her nephew. After being retained, respondent took no action in the case. Respondent failed to perform any services for his client. Approximately eight months after his retention, Ms. Smith terminated his services.

Ms. Smith requested respondent return the $1,000 fee. He refused to do so, contending he earned the fee. Respondent has failed to render an accounting to Ms. Smith, nor has he provided any restitution.

Burr Matter

Respondent represented Robert Burr in a personal injury matter. The case settled, and respondent withheld funds in the amount of $2,093 to pay Dr. Fred Miller for chiropractic services rendered to Mr. Burr.

Thereafter, respondent failed to pay the funds owed to Dr. Miller. As a result, Dr. Miller filed suit against respondent and Mr. Burr. Respondent agreed to pay the funds if the suit was dropped against his client. Dr. Miller agreed to drop his lawsuit against Mr. Burr. However, respondent filed for bankruptcy and did not pay the funds owed to Dr. Miller.

Moody Matter

Cynthia Moody approached respondent about representing her. Ms. Moody explained that a judgment had been rendered against her and her ex-husband and the judgment creditor had seized $3,500 in her saving account. Respondent agreed to represent Ms. Moody for a $500 flat fee. After being retained, respondent contacted |7the judgment creditor, but was unsuccessful in convincing him to release Ms. Moody from the judgment.

Subsequently, Ms. Moody requested a refund of the fee she paid to respondent. Respondent refused to account for the fee, as well as failed to place the disputed fees in trust.

Scottt-Gillespie Matter

In June 1996, Gayle Scott-Gillespie contacted respondent. She explained that when she left her former company, her business partner agreed to pay her $3,000 for her stock, but never followed through. She asked respondent to review her documents and write a letter to the company on her behalf. Respondent agreed to do so for a $250 fee.

While respondent reviewed the documents and contacted Ms. Scott Gillespie’s former employer, he did not write a letter on her behalf. Respondent further failed to keep Ms. Scott Gillespie properly informed regarding the status of her case, as well as failed to account for the unearned fee or place the disputed funds in trust.

Stewart Matter

In February 1997, Charlean Stewart retained respondent to defend her son in a criminal matter. She also requested respondent file a civil suit on her son’s behalf against the Franklinton Police Department. Ms. Stewart and respondent agreed to a $2,500 fee for the criminal representation and a one-third contingency fee arrangement for the civil suit. Ms. Stewart paid $500 of the $2,500 fee.

IsWhile respondent appeared at his client’s arraignment, he took no further action in the criminal case, nor did he file the civil suit. Respondent failed to account for his fee, nor did he refund the unearned portion of his fee.

Desvigne Matter

Respondent represented Janet Ann Des-vigne in a personal injury matter arising from an automobile accident. In August 1996, respondent settled a case on behalf of Ms. Desvigne in the amount of $40,000. Following the settlement, respondent disbursed $11,600 to Ms. Desvigne. Although respondent maintained he provided a detailed settlement statement to Ms. Des-vigne, he failed to produce any records supporting this assertion, despite being given additional time by the hearing committee to do so.

Bright Matter

Sandra Krick Bright retained respondent on September 5, 1992 to represent her in a contentious child custody matter. Between September 2, 1992 through January 28, 1993, Ms. Bright paid respondent legal fees in the amount of $4,000.

On January 28, 1993, Ms. Bright discharged respondent on the ground that he neglected the matter and failed to communicate with her. Ms. Bright requested a refund of the unearned fee. Rather than refunding any portion of the fee, respondent sent Ms. Bright a statement reflecting an additional payment due in the amount of $2,153.28. However, respondent refused to provide an itemized accounting of his services.

| aVernon Matter

In March 1997, Rodney Vernon retained respondent to represent him in connection with a capital murder case. Mr. Vernon’s mother, Doretha Vernon, paid respondent approximately $5,000, which she and Mr. Vernon believed was respondent’s entire fee for handling the matter. Between March 1997 through October 1997, respondent made several court appearances and filed pleadings on Mr. Vernon’s behalf.

On December 1, 1997, respondent was suspended from the practice of law by this court. Respondent failed to advise Mr. Vernon of his suspension and failed to take measures to protect his interests.

Toomer Matter

In September 1997, Norma Jean Toomer retained respondent to represent her son in a juvenile- matter. Ms. Toomer and respondent agreed to a $2,500 flat fee, of which Ms. Toomer paid $1,100. With the exception of visiting his client on one occasion, respondent took no action in the case, resulting in the appointment of other counsel to handle the matter.

Respondent claimed to have withdrawn from the case because Ms. Toomer failed to pay the entire fee. Although respondent maintained he earned the $1,100 in fees paid by Ms. Toomer, he provided no accounting to substantiate this assertion.

Unauthorized Practice of Law

On August 16, 1996, respondent became ineligible to practice law based on his failure to satisfy the mandatory continuing legal education requirements. He has remained ineligible since that time. Respondent was given notice of his ineligibility by |inthe Louisiana State Bar Association. Nonetheless, respondent either assumed or continued representation of clients in the Myles, Warren, Smith, Moody, Scott Gillespie, Stewart, Desvigne, Vernon, and Toomer matters. In none of these cases did respondent advise his clients he was ineligible to practice law.

On October 17,1997, this court rendered an opinion suspending respondent from the practice of law for a period of two years, with six months deferred, subject to a two-year period of probation, stemming from the commingling and conversion of client funds. In re: Gardner, 97-1314 (La.10/17/97), 701 So.2d 1342. That suspension became effective on December 12, 1997, upon the denial of rehearing.

Following his suspension, respondent simply abandoned many of his clients’ cases and failed to take any measures to protect their interests. One of these clients included Rodney Vernon, who was the subject of capital murder proceedings.

Failure to Cooperate

Respondent failed to cooperate with the ODC in numerous disciplinary investigations stemming from complaints filed in the Myles, Warren, Smith, Burr, Moody, Scott Gillespie, Stewart, Desvigne, Bright, and Vernon matters. As a result, the ODC was required to issue subpoenas compelling respondent’s appearance and production of documents at scheduled depositions. In most instances, respondent avoided service of process. After being served, respondent failed to comply with the orders compelling his cooperation.

^DISCIPLINARY PROCEEDINGS

Formal Charges

In January 1997, the ODC filed formal charges against respondent in connection with the Boutwell matter, alleging violations of Rules 1.4 (failure to communicate), 1.5(c) (failure to obtain written contingency fee agreement), 1.8 (exploiting representation of a client), 1.15(b) (failure to deliver or account for property owed to client or third party), 1.15(c) (failure to keep property owned by client and third party separate from that of attorney and failure to place property subject to a dispute in trust), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) of the Rules of Professional Conduct.

When respondent failed to timely file a response, the charges were deemed admitted pursuant to Supreme Court Rule XIX, § 11(E)(3). Respondent filed a motion to vacate the deemed admitted order, which was denied. The matter therefore proceeded without a hearing. Upon the filing of the disciplinary board’s recommendation, this court concluded the hearing committee chair erred when he denied respondent’s motion to vacate. Accordingly, the matter was remanded for a formal hearing before the committee. In re: Gardner, 98-1476 (La.10/9/98), 719 So.2d 400.

On remand, the ODC supplemented and amended the formal charges against respondent to include an additional twenty-six counts of misconduct arising from the Myles, Warren, Smith, Burr, Moody, Scott-Gillespie, Stewart, Desvigne, Bright, Vernon, and Toomer matters. These charges alleged violations of Rules 1.1(b) (incompetence), 1.3 (lack of diligence), 1.4 (failure to communicate), 1.15(f)(3) (failure listo account for advance fee), 1.5(f)(6) (failure to place fees subject of dispute in trust), 1.15 (safekeeping and separation of client property in dispute), 1.15(c) (failure to keep property owned by client and third party separate from that of attorney and failure to place property subject to dispute in trust), 1.16(a)(1) (failure to withdraw from representation of client when the representation resulted in professional misconduct), 1.16(d) (failure to protect client interests upon termination of representation), 3.4(a) (unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying or concealing a document or other material having potential evidentiary value), 3.4(c) (failure to comply with tribunal orders), 5.5(a) (engaging in the unauthorized practice of law), 8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct, as well as Supreme Court Rule XIX, § 9(c) (willful failure to comply with orders of a disciplinary agency).

Respondent filed an answer denying the allegations in the formal charges and asserting various affirmative defenses. The matter then proceeded to a formal hearing.

Recommendation of the Hearing Committee

The hearing committee heard testimony from several witnesses and received numerous documentary evidence. Respondent represented himself at the hearing and testified on his own behalf.

|13At the conclusion of the hearing, the hearing committee determined the ODC proved the allegations of the formal charges by clear and convincing evidence. Specifically, the committee concluded respondent neglected numerous client matters, failed to communicate with his clients with regard to the status of their legal matters and his disciplinary infractions, engaged in a conflict of interest relative to the Boutwell matter, failed to properly withdraw from representations when necessary and to protect client interests at the termination of a representation, failed to account for and return unearned fees, commingled and converted. client and third party funds, failed to place disputed funds in trust, engaged in criminal and deceitful conduct, and failed to cooperate with the ODC, as well as failed to comply with subpoenas issued by the disciplinary agency.

As aggravating factors, the committee recognized respondent’s prior disciplinary record, dishonest or selfish motives, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary process by intentionally failing to comply with rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the misconduct, substantial experience in the practice of law (admitted 1983), and indifference to making restitution. The committee did not identify any mitigating factors. Accordingly, the committee recommended respondent be disbarred.

| uNotice of Intent to Seek Permanent Disbarment

The matter was argued before the disciplinary board on June 25, 2001. On May 9, 2002, after argument but prior to the board’s issuance of its recommendation, the ODC filed a “Notice of Intent to Seek Permanent Disbarment and Recommendation of Same to Disciplinary Board.” In that notice, the ODC asserted that permanent disbarment was appropriate in this case. The motion was served on respondent, who did not oppose it.

Recommendation of the Disciplinary Board

With minor modifications, the disciplinary board concluded the record supported the factual findings of the hearing committee. The board found respondent violated duties owed to his clients, the public, the legal system and the profession. It determined his actions were intentional and knowing, causing significant actual injury to his clients. Specifically, it noted that he neglected multiple client matters and his failure to communicate with those clients, or in some instances actively misleading them into believing their work had been performed, unduly delayed his clients’ legal matters. Furthermore, it found respondent’s failure to return unearned fees and/or unexpended costs deprived his clients of their money. The board maintained respondent’s failure to pay a third party medical provider with funds withheld for that purpose exposed the respective client to the risk of being held liable for those expenses and wrongly deprived the third party of funds due him. Finally, as to the Boutwell matter, it noted respondent’s failure to make timely reimbursements for more 11Rthan $20,000 in personal American Express charges negatively impacted the financial affairs of his client. The board found respondent’s failure to cooperate in the disciplinary investigation of the multitude of complaints filed against him caused injury to the legal profession, as well as unjust delays and' additional burdens upon the disciplinary system.

The disciplinary board adopted the aggravating factors cited, by the hearing committee, and agreed there were no mitigating factors presént. Relying on the record, the ABA’s Standards for Imposing Lawyer Sanctions, prior jurisprudence from this court, and the presence of the numerous aggravating factors, the board recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection in this court to the recommendation of the disciplinary board.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In. re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Turning first to the Boutwell matter, we find the record demonstrates respondent took advantage of his attorney-client relationship with Mr. Boutwell to finance a Impersonal “shopping spree” of almost unimaginable proportion. Respondent’s defense was that although Mr. Boutwell paid for respondent’s personal charges, these payments were an offset against legal fees which Mr. Boutwell owed to respondent. However, respondent failed to produce any contemporaneous accounting which would have supported his assertions that additional fees were owed.

While,respondent provided some restitution to Mr. Boutwell, his. efforts may be described as incomplete at best. On several occasions, respondent gave Mr. Bout-well checks which were returned for insufficient funds. Mr. Boutwell was forced to refer the matter to the district attorney’s office, and only after that office became involved did respondent reluctantly provide additional reimbursement.

Rule 1.8 of the Rules of Professional Conduct provides that a lawyer “may not exploit his representation of a client ... to the client’s disadvantage.” We believe the instant case offers an illustration of precisely the type of the conduct this rule was intended to prohibit. Respondent deliberately ignored the professional rules intended to protect clients, such as the requirement of a written contingency fee agreement under Rule 1.5(c), and instead engaged in a course of dishonest conduct designed to coerce his client into paying legal fees unsupported by a legitimate accounting. Given this evidence, we must conclude the charges brought by the ODC in the Boutwell matter are supported by clear and convincing evidence.

We now turn to an analysis of the remaining charges. While the Myles, Warren, Smith, Burr, Moody, Scott-Gillespie, Stewart, Desvigne, Bright, Vernon, and Toomer matters contain different facts, they involve common elements of neglect of client matters and failure to account for or return unearned client funds resulting in conversion of those funds. The undisputed evidence in the record further demonstrates respondent practiced law after being declared ineligible to do so and |17failed to cooperate with the ODC during its investigation. Accordingly, we find all these charges have been proven by clear and convincing evidence.

Having found evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a 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).

Respondent’s misconduct is clearly serious in nature. He has exhibited a complete disregard for his clients’ welfare as well as the authority of this court. His actions caused harm to his clients, many of who were indigent and/or incarcerated, by depriving them of their funds and jeopardizing their legal matters. The baseline sanction for this misconduct is unquestionably disbarment.

Numerous aggravating factors are present, including respondent’s prior disciplinary record, dishonest or selfish motives, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary process by intentionally failing to comply with rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the misconduct, substantial experience in the practice of law, and indifference to making restitution. We are unable to identify any mitigating factors from the record.

Considering these facts, we have no doubt that respondent must be disbarred. Haying determined that respondent must be disbarred, the only remaining question is |1swhether the nature of respondent’s misconduct is so reprehensible that he should be permanently prohibited from being readmitted to the practice of law.

In Appendix E to Supreme Court Rule XIX, we provided guidelines illustrating the type of conduct which might warrant permanent disbarment. These guidelines were not intended to bind this court in its decision-making, 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 1 applies to “repeated or multiple instances of intentional conversion of client funds with substantial harm.”

While the facts of the Boutwell matter are different from the typical conversion case seen by this court, the net effect of respondent’s actions was to convert funds belonging to Mr. Boutwell to respondent’s own use. The record reveals respondent deprived Mr. Boutwell of a significant amount of funds for a lengthy period of time, creating substantial harm. Likewise, respondent’s failure to account for and refund unearned fees paid by his other clients resulted in a conversion of those funds to the detriment of his clients. Therefore, we find respondent’s conduct falls within the scope of this guideline.

We do not lightly impose permanent disbarment. Nonetheless, we are firmly convinced that we would be derelict in our constitutional duty to regulate the practice of law if we did not impose that sanction under the instant facts. Respondent’s actions demonstrate he lacks the requisite moral fitness to practice law in this state. Respondent has disregarded and ignored his obligation to uphold the high standards of honesty and righteousness that he assumed when he took the oath as a member of the bar of this state. Louisiana State Bar Ass’n v. Hay Ion, 250 La. 651, 198 So.2d 391, 392 (1967). He has used his law license not to foster the high standards of the |19profession, but to exploit his clients for his own benefit. This court cannot and will not tolerate such conduct. He must be permanently disbarred from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that the name of Winthrop G. Gardner, Louisiana Bar Roll number 1903, 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 practice of law in this state. Respondent is ordered to make full restitution to his victims. 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.

      . Thomas Carpenter, a certified public account retained by the ODC, reviewed the American Express statements from July 24, 1994 through March 29, 1995. He reviewed a total of 542 charges totaling $38,894.14. Of those, he concluded 524 charges totaling $38,095.64 were personal in nature and could not be characterized as litigation expenses. He characterized 18 charges totaling $798.50 as "possible" litigation expenses, but noted none of the charges were obviously related to litigation costs. Based on evidence adduced at the hearing, the hearing committee made a finding of fact that all of the charges were personal in nature.

      . The following chart indicates the amount of respondent's monthly personal credit expenditures and payments, as well as the balances satisfied by Mr. Boutwell allegedly representing respondent’s legal fees:
      Month Amount of Bill Respondent's Payment Balance/Alleged Legal
      Fee
      July 1994 $3,227.08 $ 624.38 $2,000.00
      August 1994 3,291.40 2,000.00 1,291.40
      September 1994 4,763.00 3,200.00 1.154.43
      October 1994 2,784.00 1,734.00 1,050.84
      November 1994 3,668.14 2,513.71 1.515.43
      December 1994 7,035.27 6,614.00 421.27
      January 1995 5.585.62 5,585.62

      15,500.00

      February 1995 7.544.62 7,544.62

      March 1995 993.94

       Respondent’s checks for payments were returned for insufficient funds.

       Respondent made payment five months after the amount was due, admittedly because of pressure imposed by the Orleans Parish District Attorney’s Office as a condition to the dismissal of criminal charges arising from the issuance of the worthless checks.

      . Mr. Boutwell later testified that while he was aware respondent was charging personal expenses on the credit card, he was apprehensive about canceling the account because he felt “it was best to hang in there and try to see this thing through on the litigation than cause a big friction....” He believed that if he canceled the account, “I would have probably not collected the money on the account because of the way I felt Respondent was doing business.”

      . Although the committee concluded there was insufficient evidence to support the charges in the Moody matter, the disciplinary board determined this finding represented legal error. Specifically, the board found the record supported the conclusion that respondent violated Rule 1.5(f)(6) and Rule 1.15(c) by failing to deposit the disputed fees in his trust account pending an accounting.

      . In addition to his suspension for misappropriation of client funds in In re: Gardner, 97-1314 (La. 10/17/97), 701 So.2d 1342, respondent was admonished in 1995 for improperly endorsing his client’s signature on a check and was admonished in 1993 for failing to render an accounting in a contingency fee case.

      . The committee recommended discipline for each count of the formal charges separately. As a result, it did not recommend disbarment for all counts. However, because disbarment necessarily subsumes any lesser sanction, the recommendation for discipline as a whole is for disbarment.

      . As noted earlier, the disciplinary board concluded the hearing committee erred in finding no professional violations in the Moody matter.