text:
    STATE of Florida, Appellant, v. Charles S. HEDDON, Appellee.
    No. 5D02-1110.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellant.
    Tad A. Yates of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park and David A. Henson, Brevard, North Carolina, for Appellee.
   SAWAYA, J.

The State is attempting to appeal the modification of Charles S. Heddon’s community control. Heddon argues that because the trial court modified the conditions of his community control but did not revoke it, the State is not permitted to appeal from such an order. See Fla. RApp. P. 9.140(c)(1). We agree.

It is well settled that the State may not appeal an order modifying community control because a modification of community control does not constitute a sentence. State v. Gray, 721 So.2d 370 (Fla. 4th DCA 1998); State v. Blackman, 488 So.2d 644 (Fla. 2d DCA 1986). This rule applies to the instant case even though Heddon admitted the violation. Gray. Accordingly, the above styled appeal is dismissed.

DISMISSED.

SHARP, W. and ORFINGER, JJ., concur.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Shawn FORSYTHE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1485.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Shawn Forsythe, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and, Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Shawn Forsythe, appeals the trial court’s granting of the state’s motion to set aside his plea. For the reasons set forth herein we find no error and affirm.

The appellant was originally charged with first-degree murder and conspiracy to commit armed robbery. The State and the appellant entered into a plea agreement in which the appellant agreed to plead guilty to the lesser included offense of second degree murder, in exchange for which the State agreed to nol pros the conspiracy count, and to recommend a sentence of 12 years in state prison, followed by 10 years of probation. The plea agreement was conditioned upon the appellant’s willingness “to testify truthfully, consistent with his prior truthful statement (to law enforcement),” at future depositions and trials of co-defendants. The plea agreement was accepted by the court. Thereafter the court adjudicated the appellant guilty, but deferred sentencing.

The appellant later gave deposition testimony with respect to a co-defendant. The State concluded that the testimony was not consistent with the statement that the appellant had given earlier to law enforcement, and filed a timely motion to vacate the plea and reinstate the original charges. After an evidentiary hearing, the trial court granted the motion, allowed the State to withdraw from the plea agreement, and set the case for trial.

Eventually, the appellant again pled guilty to second-degree murder in accordance with a new plea agreement calling for a sentence of 15 years in state prison, followed by 10 years of probation. The trial court accepted the new agreement, while allowing the appellant to reserve for appeal the order setting aside the original plea.

The issue presented for our consideration is whether the trial court abused its discretion in allowing the state to withdraw from the original plea agreement. See Robinson v. State, 761 So.2d 269 (Fla.1999). Pleas are governed generally by Rule 3.170, Florida Rules of Criminal Procedure. Subsection (g) of that rule specifically addresses the vacation of pleas. That rule says, among other things, that, “Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered in open court.” Thereafter, the rule provides that, “The state may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with the specific terms of a plea agreement,” and describes a procedure to be followed in implementing the vacation.

Once a defendant reneges on the plea agreement, the state has the option of withdrawing from the agreement, and either going to trial or seeking a new agreement. Cf., Latiif v. State, 787 So.2d 834 (Fla.2001); Gray v. State, 774 So.2d 809 (Fla. 5th DCA 2000); Parker v. State, 767 So.2d 532 (Fla. 5th DCA 2000); see also Capio v. State, 765 So.2d 853 (Fla. 5th DCA 2000). After all, if a criminal defendant does not feel so bound by the terms of a plea agreement that he or she will comply with it, then the state is likewise not bound. See Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).

Here, the proper procedure was followed, and the trial judge appropriately exercised his discretion in allowing the state to withdraw from the plea agreement.

AFFIRMED.

SAWAYA and PALMER, JJ., concur.


author: PER CURIAM.

text:
    T.K., Mother of K.A.H, a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-2805.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2003.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PER CURIAM.

A review of the record reflects that there was substantial competent clear and convincing evidence to support the determinations of the trial judge. See Kingsley v. Kingsley, 623 So.2d 780 (Fla. 5th DCA 1993), rev. denied, 634 So.2d 625 (Fla.1994).

AFFIRMED.

SAWAYA, PLEUS and MONACO, JJ., concur.


text:
    Brian WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-743.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Brian Washington, Cocoa, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997).

SAWAYA, ORFINGER and MONACO, JJ., concur.


text:
    Robert L. SZORCSIK, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-642.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Robert L. Szorcsik, Coleman, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. State v. Sehnert, 826 So.2d 1039 (Fla. 5th DCA 2002); Stroble v. State, 689 So.2d 1089 (Fla. 5th DCA), review denied, 697 So.2d 512 (Fla.1997).

SHARP, W., SAWAYA and MONACO, JJ., concur.


text:
    Troy Miguel VICTORINO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-192.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    Troy Miguel Victorino, Crestview, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. State v. Meeks, 789 So.2d 982 (Fla.2001); Carter v. State, 786 So.2d 1173, 1180-81 (Fla.2001); Hill v. State, 692 So.2d 277 (Fla. 5th DCA 1997).

GRIFFIN, SAWAYA and TORPY, JJ., concur.


text:
    Nathan Roland TESSIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2870.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.

      James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PLEUS and MONACO, JJ., concur.


text:
    Timothy B. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2253.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Timothy B. Edwards, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Charles STEVENSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-366.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Charles Stevenson, in proper person.
    Charles J. Crist, Jr., Attorney General and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

Affirmed. See Dennis v. State, 754 So.2d 857 (Fla. 3d DCA 2000); James v. State, 721 So.2d 1265 (Fla. 3d DCA 1998).


text:
    Henrietta DOLEGA, Appellant, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, Appellee.
    No. 3D02-2423.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Herdman & Sakellarides, and Mark Herdman, Palm Harbor, for appellant.
    Madelyn P. Schere, for appellee.
    Before COPE, and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Henrietta Dolega appeals her termination of employment by appellee Miami-Dade County School Board. We affirm.

Between 1994 and early 1997, Dolega had several conferences with School Board personnel concerning her excessive absences and lack of emergency lesson plans to cover her absences. Dolega then took an extended leave of absence, and did not return to work until April 30, 2001.

Before she started work again, another conference was held on April 25, 2001 at which the School Board issued the following directives to Dolega:

1. Be in regular attendance and on time.
2. Intent to be absent must be communicated directly to the principal.
3. Site procedures for provision of lesson plans and materials for the substitute teacher must be adhered to. (Chapman Elementary where Dole-ga worked requires five days of lesson plans to be kept in an emergency folder).
4. Further absences in excess of accrued leave will result in disciplinary action, including dismissal.

Dolega was absent a total of twelve days in September and October of 2001, seven days due to recovery from dental surgery and five days due to a leg injury. Six of the absences were covered by accrued leave, six were unauthorized. Dolega had discussed the surgery beforehand with her principal, but had not planned on being absent for one entire week. Although she faxed the lesson plans to the school each day of her absence, the school received the lesson plans after classes had begun so that the substitute teacher had no idea as to the curriculum to be taught at the start of the day. Dolega had several other absences in November and December of 2001, but these were covered by accrued leave. However, Dolega’s emergency lesson plan folder was not in compliance on either of those occasions.

On October 30, 2001, the School Board sent Dolega a memo reminding her of the directives issued April 25, 2001. On November 16 and December 12, 2001, Dolega met with the regional personnel director to discuss her noncompliance with the directives. The director then recommended that Dolega be dismissed for gross insubordination, willful neglect of duty, and incompetency due to physical incapacity.

After a hearing at which Dolega, her former and current principal, and the School Board personnel director testified, the administrative law judge found no evidence of physical incapacity, but did find that Dolega’s noncompliance with repeated directives amounted to insubordination and willful neglect. The School Board adopted the administrative law judge’s recommendation and terminated Dolega’s employment.

Florida Administrative Code Rule 6B-4.09(4) defines gross insubordination or willful neglect of duties as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. Rutan v. Pasco County School Board, 435 So.2d 399, 400 (Fla. 2d DCA 1983); Smith v. School Board of Leon County, 405 So.2d 183, 185 (Fla. 1st DCA 1981). In Smith, an employee’s outburst did not constitute gross insubordination because it was an isolated incident rather than continuous and was not disobedience of a direct order. Similarly, in Rutan, the school board’s finding of gross insubordination and willful neglect was reversed because Rutan never refused to obey a direct order.

In this case, Dolega was repeatedly directed to provide lesson plans as a contingency for unexpected absences. She continually failed to do so. Dolega argues that she never refused to provide lesson plans, she merely failed to have them done as required. We hold that Dolega’s repeated failure to comply with her lesson plan requirement is a tacit refusal to comply with the April 25, 2001 directives. Accordingly, we affirm the School Board’s decision to terminate Dolega’s employment.


text:
    MERLOT COMMUNICATIONS, INC., Appellant, v. Alberto Shaul SHALEV, Appellee.
    Nos. 3D03-48, 3D02-2440.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.

      Hall, David & Joseph and Andrew C. Hall and Adam S. Hall, Miami, for appellant.
    Goldstein, Tanen & Trench and Richard M. Goldstein and Keith R. Gaudioso, Miami, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Merlot Communications, Inc. [Merlot] seeks to reverse a judgment which denies Merlot’s action for the return of deposit money held by Alberto Shaul Shalev. We affirm.

Merlot’s plans to acquire World Pass Communications Company from Shalev fell through when Merlot was unable to close on the agreed date. Merlot demanded the return of its deposit money, which demand Shalev rejected. Merlot then filed this action, which was referred to a general master who, after hearing the testimony and arguments, filed a final report recommending that judgment be entered in favor of Shalev, and against Merlot. After overruling Merlot’s exceptions to the report, the trial judge approved the report and entered the judgment appealed by Merlot.

We have reviewed de novo the contract (as amended) and agree with the interpretations placed thereon by the trial court, as set out in the general master’s thorough report. We also find that the findings of fact are supported by substantial competent evidence. As a consequence the judgment must be affirmed.

Affirmed.

      . The interpretation of a contract is a question of law, reviewable de novo by an appellate court, which is not restricted from reaching a construction contrary to that of the trial court. See Florida Dept. of Revenue v. McClung, 760 So.2d 244, 246 n. 1 (Fla. 3d DCA 2000). We do not, however, reach a contrary construction.

      . We are not free to reweigh the evidence and substitute our judgment thereon for that of the trial court. See Dusseau v. Metro. Dade County Bd. of County Comm'rs., 794 So.2d 1270 (Fla.2001).


text:
    Albio MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3332.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Albio Morales, in proper person.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.

      Before JORGENSON, LEVY, and GERSTEN, JJ.
   PER CURIAM.

Based upon the trial court’s thorough and well-reasoned order, we affirm the denial of defendant’s motion for postcon-viction relief.

AFFIRMED.


text:
    INTRINSIC VALUES CORPORATION, Appellant, v. SUPERINTENDENCIA DEADMINISTRACION TRIBUTARIA, First Union National Bank, Barclays Bank, PLC, Miami Agency, Appellees.
    No. 3D02-2907.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Hoffman, Larin, Agnetti & Karas, and John B. Agnetti, North Miami Beach, for appellant.
    Goldstein, Tanen & Trench, and Susan E. Trench, and Gallwey, Gillman, Curtis, Vento & Horn, and Stephen B. Gillman, and Zuckerman, Spaeder and Walter Tache, Miami, for appellees.
    Before SCHWARTZ, C.J., and GODERICH, J., and NESBITT, Senior Judge.
   PER CURIAM.

At the outset the reader is referred to Intrinsic Values Corporation v. Superintendencia De Administracion Tributaria, 806 So.2d 616 (Fla. 3d DCA 2002).

In this second appearance of the matter, Intrinsic, the Intervenor in this ancillary Florida proceeding, sought to increase the $1000.00 bond in place to protect its rights. It asserts that it has demonstrated evidence that necessarily requires substantial increase of the bond. In the evidentiary hearing it was borne out that Barclays indeed refused to honor presentments made to it. During the pendency of the injunction it had been modified so as to preserve Intrinsic’s right to seek payment through the injunction. However, the presentments were rejected for reasons unrelated to the injunction. At the eviden-tiary hearing on somewhat conflicting evidence, it was established that presentments offered to First Union and Barclays by Intrinsic were rejected because the documentation did not precisely conform to the letter of credit. The non-conforming presentments were properly rejected by the banks for non-compliance with the letter of credit. Fidelity National Bank of South Miami v. Dade County, 371 So.2d 545.

Therefore, despite the fact that Intrinsic may have incurred additional expenses in attempting to satisfy its customer and protect its litigation rights, the letters of credit were properly dishonored and shortly thereafter expired by their own term. Therefore, there was no abuse of discretion by the chancellor in not requiring an increase in the bond.

Affirmed.

      . This statement will have no effect on the declaratory action brought by Intrinsic to determine whether the presentments in fact conformed to the letter of credit.


text:
    Sandra THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-48.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Sandra Thomas, Ft. Lauderdale, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Sandra Thomas seeks review of the trial court’s order denying her motion regarding restitution. Thomas alleged that she returned the property at issue, thereby satisfying the restitution component of her sentence. We accept the state’s concession that the case should be reversed and remanded for the evidentiary hearing necessary to resolve the issue. See Weinstein v. State, 745 So.2d 1085 (Fla. 4th DCA 1999); Musial v. State, 689 So.2d 1307 (Fla. 5th DCA 1997).

GUNTHER, FARMER and MAY, JJ., concur.


author: POLEN, C.J.

text:
    Tricia FUCHS, Appellant, v. Randy FUCHS, Appellee.
    No. 4D02-2542.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.

      Bernardo Burstein of Bernardo Bur-stein, P.A., Miami, and Alan Jay Braver-man of Braverman & Rossi, Fort Lauder-dale, for appellant.
    Sandor F. Genet of Sandor F. Genet & Associates, P.A., North Miami Beach, for appellee.
   POLEN, C.J.

This is an appeal from an order granting a husband’s motion for temporary financial relief. On appeal, the wife raises three arguments. One, the trial court erred by entering an order after a motion disqualifying the judge had been granted. Two, the hearing on this motion violated her due process rights. Three, the trial court’s order was unsupported by record evidence. We agree with the wife on all three points and hereby vacate the order entered on June 11, 2002,

Initially, the wife alleges that it was improper for the trial judge to enter an order after having previously entered an order of disqualification. We agree. A petition for dissolution was filed in this matter on February 7, 2002. In the wake of numerous motions addressing financial and custody issues, the judge appointed a guardian ad litem and allowed the husband to proceed with his motion for temporary financial relief, but not on the issue of temporary custody.

On April 17, 2000, a hearing was held on the motion for temporary financial relief. The record indicates that the hearing did not allow for witnesses to testify, no evidence was admitted and parties did not have the opportunity to cross examine one another. Moreover, the transcript shows that the hearing on the temporary financial support turned into a hearing on other matters, including child custody.

Unhappy with the way the hearing was conducted, on May 31, 2002, the wife filed a motion to disqualify the judge. Although the record curiously reflects an order granting this motion on June 5, 2002, and a second identical amended order granting this motion on June 11, 2002, the bottom line is that the motion was granted.

On June 11, 2002, counsel for the husband submitted a proposed order. Although the wife objected to the order, the judge erroneously entered the order without modification on June 18, 2002.

We recognize that it is permissible for a disqualified judge to reduce earlier rulings to writing. See Fischer v. Knuck, 497 So.2d 240 (Fla.1986). However, we find that this order went beyond the permissible ministerial act contemplated in Fischer. The order sets forth findings and conclusions that were not made at the hearing. Furthermore, the transcript is unclear as to what conclusions were made at the hearing.

In this case we find that after having received the proposed order from the husband, the judge would be required to exercise some element of discretion in determining if the order properly reflected the conclusions of the court. See, e.g., Berry v. Berry, 765 So.2d 855 (Fla. 5th DCA 2000). As a result, we hold that the entry of this order went beyond the ministerial act a disqualified judge is allowed to do and therefore the order was entered erroneously. As a result, we hereby vacate the order.

The wife’s second argument was that the hearing violated her due process rights. Once again, we agree. This court has held that the “general rule is that a court cannot determine matters not noticed for hearing and not the subject of appropriate pleadings.” (Hart v. Hart, 458 So.2d 815 (Fla. 4th DCA 1984)(internal citations omitted)(citing Fickle v. Adkins, 394 So.2d 461 (Fla. 3d DCA 1981))). In Hart, this court noted a clear violation of due process where an order was entered on permanent custody following a hearing noticed as a temporary custody hearing. Id. at 816. In this ease, the notice given was for a hearing on the husband’s motion for temporary financial relief. However, the trial court opened the discussion up to issues relating to child custody and child support. Moreover, the order provides a visitation schedule and orders the parties to attend family counseling. Clearly, the extent of this hearing, and the provisions of the order, go well beyond those contained in the notice and therefore we agree that the wife’s due process rights were violated.

Last, we find the wife’s argument that the order is not supported by evidence in the record persuasive as well. In Leon v. Leon, 616 So.2d 633 (Fla. 4th DCA 1993), this court noted that “the entry of a temporary support award without the parties having a full opportunity to be heard may not be error so long as (1) there is an immediate need for support tantamount to an emergency; (2) the temporary award is not per se unreasonable; and (3) the trial judge sets another hearing at a later date to finish testimony.” Those conditions did not exist in this case. Thus, it was error for the trial court to conduct a hearing in a manner that prohibited the parties the opportunity to be fully heard. There was no formal testimony taken, no witnesses were put under oath and parties were not able to cross examine anyone. As a result, we conclude that the record does not contain evidence that supports the trial court’s order. This too supports our conclusion to vacate the order.

The wife has also made a motion for appellate attorney’s fees. This court has previously held that “[Wjhen we grant a motion for appellate attorney’s fees founded on section 61.16, we have no way of knowing how great is the need to equalize the access to legal services, nor how great is the ability to pay. In one case the need may be modest but the ability unlimited; while in another the need may be great but the ability modest; in still another the need and ability are similar; and in yet another there may be little or no need or ability. All of these permutations are for the finder of fact, the trial court, to sort out.” Gerhardt v. Gerhardt, 738 So.2d 485 (Fla. 4th DCA 1999).

This court’s inability to accurately determine the wife’s need for fees, as well as the husband’s ability to pay, is further complicated in this case due to the incomplete record regarding the financial positions of the parties. Therefore, we grant the motion but remand this issue back to the trial court for consideration under Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

GUNTHER and HAZOURI, JJ., concur.


author: FARMER, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA, Petitioner, v. Jerry ANDERSON, Kelvin Jordan, Herbert Coakley, Edward Gioberti, and Clinton Jenkins, Respondents.
    Nos. 4D02-2930, 4D02-2935, 4D02-2960, 4D02-3125, 4D02-3306.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.

      Douglas Greenbaum, Fort Lauderdale, Attorney for Department of Children and Families, Fort Lauderdale, for petitioner.
    Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for respondents.
    Gale Ciceric Payne, Gale Payne & Associates, Fort Lauderdale, for Amicus Curiae Ken Jenne, Sheriff of Broward County.
   On Motion Fob Rehearing

FARMER, J.

We hereby grant Respondents’ motions for rehearing, withdraw our previous opinion, and upon reconsideration temporarily and partially leave undisturbed the orders under review.

Upon remand, we direct the trial judge to enter new orders setting fresh dates for compliance with the orders requiring immediate placement. In the event that Petitioner, the Department of Children and Families (DCF), shall thereafter assert that it is unable to comply with such orders under current budgeting and statutory restraints, the trial court shall hold an evidentiary hearing at which all parties, including the Sheriff of Broward County, shall be given the opportunity to present evidence addressing whether DCF does in fact have the ability to comply with such orders.

The trial court shall thereupon make specific findings of fact and conclusions of law as to the issue of DCF’s ability to comply with the immediate placement orders. The trial court may then make such orders as it deems appropriate, consistent with its findings and conclusions, regarding the immediate placement of respondents and the enforcement of its orders. Any party may thereafter timely seek appropriate review in this court.

STONE and GROSS, JJ., concur.


text:
    Sandra L. TENNELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3559.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Sandra L. Tennell, Quincy, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Sandra Tennell appeals the trial court’s order resentencing her to 109.75 months imprisonment without her presence at the required resentencing hearing. Given the State’s concession of error, we reverse the order below and remand with instructions for the trial court to conduct a resentenc-ing hearing at which Appellant shall be present.

POLEN, C.J., FARMER and GROSS, JJ., concur.


author: HAZOURI, J.

text:
    Randall L. LESHIN and Randall L. Leshin, P.A., Petitioners, v. Nancy Kay DAILEY, Respondent.
    No. 4D03-379.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Randall L. Leshin of Law Offices of Randall L. Leshin, Pompano Beach, for petitioners.
    No appearance for respondent.
   HAZOURI, J.

Randall L. Leshin, Esquire, and Randall L. Leshin, P.A., petitions this court for writ of mandamus to direct the trial court to disburse certain funds, which were held in a trust account by respondent, Nancy Kay Dailey’s former counsel, Robert C. Sorgini. We grant the petition for mandamus.

In prior litigation, Randall L. Leshin, Esquire, filed an attorney’s lien against Nancy K. Dailey and the trial court ordered that Leshin be paid on his lien in the amount of $250,000. Dailey appealed and the trial court permitted Dailey’s attorney, Robert C. Sorgini, to hold the lien amount in an interest bearing trust account pending the outcome of the appeal. This court decided the appeal in Leshin’s favor. See Dailey v. Leshin, 747 So.2d 946 (Fla. 4th DCA 1999) (Table).

As a result of the mandate in Dailey, supra, on September 1, 1999, Leshin filed a motion for disbursement including interest. On September 9, 1999, the trial court granted the motion, but ordered that any disputes concerning interest would be resolved at a subsequent hearing. After receiving the September 9th order, Sorgini disbursed the $250,000 to Leshin but retained possession of the $4,350.05 accumulated interest and refused to disburse to Leshin the interest earned on the funds. Thereafter, on September 21,1999, Leshin filed a renewed motion for disbursement of interest seeking the accumulated interest which the trial court denied.

The duty required through mandamus must be ministerial in nature; there must be no room for the exercise of discretion, and the performance required must be directed by law. Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996) (citing Solomon v. Sanitarians’ Registration Bd., 155 So.2d 353 (Fla.1963)), rev. denied, 684 So.2d 1353 (Fla.1996). The judgment of $250,000 is liquidated damages and, therefore, Leshin is entitled to interest on that liquidated amount until paid. Liquidated damages became certain upon entry of the judgment of the lien and computation of the prejudgment interest is merely a mathematical computation. There is no finding of fact needed. Thus, it is purely a ministerial duty of the trial judge to add the appropriate amount of the interest to the principal amount of the damages awarded. See Argonaut Ins. Co., et al. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985). Hence, since it is merely a ministerial act, mandamus is appropriate and we hereby direct the trial court to enter an order directing the disbursement of the interest retained plus the interest earned thereon.

STONE and FARMER, JJ., concur.


text:
    Tavares McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1373.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.

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

Appellant, Tavares McCoy, timely appeals his conviction for possession of crack cocaine, arguing that the trial court erred in denying his motion for judgment of acquittal. We affirm.

The contraband in question, approximately $100 worth of crack cocaine, was found in a cup located on the front porch of a home which did not belong to appellant. A police officer had observed appellant sitting in a chair on the porch for approximately five to ten minutes; the cup was within arm’s reach of the chair. No one else was on the porch at the time, although to the left of the chair there was a corded telephone and the cord ran under the front door and into the house. When the officer handcuffed appellant, appellant immediately stated: “It’s not mine, it’s Keith’s.” We agree with the State that there was sufficient evidence to establish possession under either an actual possession/“ready reach” theory or a constructive possession theory.

Both a “ready reach” actual possession theory and a constructive possession theory require that the defendant have control over the drugs. See Fla. Std. Jury Instr. (Crim.) Drug Abuse — Possession (defining actual possession as “in the hand of or on the person” or “the thing is so close as to be within ready reach and is under the control of the person”); State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999)(dis-cussing the control element under a “ready reach” theory); Williams v. State, 724 So.2d 1214, 1215 (Fla. 4th DCA 1998)(recognizing that ability to maintain control over the contraband is an element of constructive possession). We have reviewed the record and find that regardless of whether the State was proceeding under the theory that McCoy was in actual possession of the drugs because they were within “ready reach” or the theory that McCoy was in constructive possession of the drugs, the evidence was sufficient to establish that McCoy was in control of the drugs. Here, appellant was the only person around and within arm’s reach of approximately $100 worth of cocaine which was otherwise unguarded and sitting out in the open on a porch. Under these circumstances, the issue of appellant’s guilt became a question for the jury.

AFFIRMED.

STEVENSON, GROSS and MAY, JJ., concur.


text:
    Leroy RHINEHART, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3232.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Leroy Rhinehart, appeals from his conviction for delivery of cocaine. He argues that the trial court fundamentally erred when it failed to instruct the jury on the element of knowledge of the illicit nature of the substance pursuant to Chicone v. State, 684 So.2d 736 (Fla.1996).

At appellant’s trial, appellant did not present any evidence or argue that he did not know the illicit nature of the substance he delivered. Appellant’s counsel did not request that the trial court give a Chicone instruction.

Pursuant to this court’s recent decision in Lee v. State, 835 So.2d 1177 (Fla. 4th DCA 2002), we find that this was not fundamental error. We, therefore, affirm appellant’s conviction.

AFFIRMED.

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


author: OWEN, WILLIAM C., Jr., Senior Judge.

text:
    M & E DISTRIBUTORS, INC. and Mark Martone, Appellants, v. Gary WORLEY and GMW, Inc. d/b/a Worley’s Wonder, Appellees.
    No. 4D02-2634.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.

      Stephen B. Rosenthal of Law Offices of Stephen B. Rosenthal, Tamarac, for appellants.
    Robert A. Plafsky of Robert A. Plafsky, P.A., Fort Lauderdale, for appellees.
   OWEN, WILLIAM C., Jr., Senior Judge.

Appellants, M & E Distributors, Inc. (M & E) and Mark Martone, seek review of a non-final order temporarily enjoining them from using the name ‘Worley’s Wonder” in marketing a liquid jewelry and glass cleaner. We affirm.

In 1986 appellee, Gary Worley (Worley), purchased the formula for a liquid jewelry and glass cleaner. He began making the cleaner with a distinctive lavender color, designed the bottle and labeling to be used, and developed the common law trade names and trademarks of “Worley’s Wonder” and “Worley’s Wonder Jewelry and Glass Cleaner.” Since that time he and, after incorporating his business, his corporate successors have continuously used the trade names and trademark in marketing the cleaner. Worley uses distributors to sell the product at malls, flea markets, and on the internet.

From 1992 until April, 2000, M & E was a distributor for Worley’s Wonder. As a distributor, M & E was authorized to use the name Worley’s Wonder in its marketing, sales, advertising, and promotion of Worley’s product. In April 2000, M & E stopped purchasing Worley’s product and began producing and selling its own cleaner under the label ‘Worley’s Wonder Presents Best Solution.” That product utilized the same distinctive color, shaped bottle, and label appearance as Worley’s cleaner. M & E sells its cleaner at flea markets and malls and through a website, htt,p://www.worleyswonder. com.

After this litigation between the parties began, Worley applied for a temporary injunction to prohibit M & E’s continued use of the name Worley’s Wonder in its marketing. Following an evidentiary hearing, the court found that (1) plaintiffs had used the name Worley’s Wonder for a substantial period of years before defendants began to use the name with actual knowledge of plaintiffs’ prior use; (2) defendants’ products were so similar to plaintiffs’ products as to create customer confusion; (8) by marketing and labeling their products as ‘Worley’s Wonder Presents,” defendants were falsely implying that their products have something to do with Worley’s Wonder; (4) defendants intentionally duplicated plaintiffs’ trademark or common law trademark; and (5) plaintiffs had demonstrated the likelihood of irreparable harm and a clear legal right to a temporary mandatory injunction. The court ordered the defendants to cease and desist using the name Worley’s Wonder in marketing and labeling their cleaner, to remove from the market their products bearing the name Worley’s Wonder and Worley’s Wonder Presents Best Solution , and to refrain from further use of the website http://www.worleyswonder. com.

M & E first argues the order is legally insufficient because it does not include any specific findings of irreparable harm, an inadequate remedy at law, or that an injunction would serve the public interest. We conclude that the court’s findings, as enumerated in the order and supported in the record by competent, substantial evidence, are sufficient. The court specifically found there was such similarity between defendants’ products and plaintiffs’ as to create customer confusion. In cases of unfair competition and trademark infringement, such as this one, where the court finds there is a likelihood of consumer confusion, irreparable harm and an inadequate remedy at law can be presumed. See Callaway Golf Co. v. Golf Clean, Inc., 915 F.Supp. 1206, 1215 (M.D.Fla.1995)(“In trademark infringement cases, irreparable harm is presumed”); Laboratorios Roldan, C. por A. v. Tex Int’l, Inc., 902 F.Supp. 1555, 1571 (S.D.Fla.1995) (granting a temporary injunction for unfair competition and trademark infringement, recognizing that the likelihood of confusion constitutes irreparable injury as a matter of law); Stagg Shop of Miami, Inc. v. Moss, 120 So.2d 39, 40-41 (Fla. 2d DCA 1960)(monetary damages an insufficient remedy for trademark infringement). Likewise, where there is likelihood of consumer confusion, enjoining the trademark infringement will protect the public interest. In Laboratorios Roldan, the court observed:

The public is entitled to be free from deception and confusion. “In a trademark infringement or unfair competition case, a third party, the consuming public, is present and its interests are paramount.” BellSouth, 792 F.Supp. at 785. Injunctive relief will serve the public interest by immediately stopping Defendants’ deception of consumers. Id. see also Teledyne Indus., Inc. v. Windmere Prods., Inc., 433 F.Supp. 710, 740 (S.D.Fla.1977) (“customer confusion is by its very nature against the public interest”).

902 F.Supp. at 1571.

M & E next argues that the temporary injunction in this case is impermissi-bly overbroad because all that was necessary in order to maintain the status quo was to prevent the parties from competing with each other in the same geographical area. While M & E contends it sells its products in different geographical locations than does Worley, the evidence established that M & E sells its products on the internet in direct competition with Worley’s distributors who likewise sell on the internet. We can take judicial notice that selling on the internet simply does not have geographical boundaries. Appellants have not shown that the injunction is over-broad.

M & E’s final point—that Worley did not demonstrate a clear legal right to an injunction—merely argues the insufficiency of the evidence to support the trial court’s finding to the contrary. Because there is competent, substantial evidence to support the trial court’s factual finding on this issue, we will not disturb it.

AFFIRMED.

POLEN, C.J., and GUNTHER, J., concur.

      . In 1992 Gary Worley incorporated his business as Worley’s Wonder, Inc., changing the name in 1995 to GMW, Inc. No issue is made here of Mr. Worley's standing; thus, for simplicity appellees are collectively referred to as "Worley.”

      . Mr. Mark Martone, a defendant/appellant, is apparently a principal in M & E. In the briefs and in testimony the parties treat him and the corporation as a single entity; thus for simplicity appellants are collectively referred to as "M & E”.

      .The litigation between the parties involves numerous claims and counter-claims. Only the court’s order granting Worley’s application for temporary injunction is before us.

      . The only "mandatory” feature of the temporary injunction was the requirement that M & E remove from the market its product con-taming the name Worley’s Wonder in order to restore the status quo.


author: GROSS, J.

text:
    Joanne FITZGERALD, Appellant, v. SOUTH BROWARD HOSPITAL DISTRICT, Appellee.
    No. 4D02-1092.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.

      Bruce Botsford of Bruce Botsford, P.A., Fort Lauderdale, and Cam F. Justice of Lawlor, Winston & Justice, P.A., Fort Lauderdale, for appellant.
    Vanessa A. Reynolds and Susanne E. Riedhammer of Conrad & Scherer, LLP, Fort Lauderdale, for appellee.
   GROSS, J.

Our focus is whether this case falls within the unrelated works exception to co-employee immunity pursuant to section 440.11(1), Florida Statutes (1995). We hold that it does not and affirm the decision of the circuit court.

Appellant, Joanne Fitzgerald, was a registered nurse who worked at the South Broward Hospital District’s Memorial Regional Hospital East (“District”). While on duty, she took a break in the women’s locker room. Fitzgerald entered a bathroom stall. When she opened the lock to leave, the stall door fell on her, hitting her arm and head and pinning her against the commode. Fitzgerald sustained injuries and underwent surgery on her shoulder.

Fitzgerald filed a claim and received worker’s compensation. Also, she filed a lawsuit against the District on the theory of vicarious liability for the “negligent acts of fellow employees performing unrelated work.” The District raised immunity under the Worker’s Compensation Act as an affirmative defense.

Both sides moved for summary judgment. The District claimed immunity. Fitzgerald argued that her claim fell within the “unrelated works” exception of the Worker’s Compensation Act. The circuit court rejected Fitzgerald’s contention, granted the District’s motion, and entered final judgment in favor of the District.

Summary judgment is proper when there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The interpretation of a statute central to a summary judgment is a matter of law subject to de novo review. See Eng’g Contractors Ass’n of S. Fla., Inc. v. Broward County, 789 So.2d 445, 449-50 (Fla. 4th DCA 2001).

[A]n employer’s liability under workers’ compensation is exclusive and in place of all other liability as to third-party tort-feasors and employees. The section provides that the same immunity extends to each employee of the employer when such employee is acting in furtherance of the employer’s business.

Holmes County Sch. Bd. v. Duffell, 651 So.2d 1176, 1177-78 (Fla.1995) (citing § 440.11(1), Fla. Stat. (1995)). However, an exception under which employee immunity is not applicable occurs when injuries result from the conduct of employees “assigned primarily to unrelated works.”

Section 440.11(1) further provides that: Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment

(Emphasis added).

The issue on appeal is whether a nurse and the maintenance personnel of the hospital were “assigned primarily to unrelated works.” If so, Fitzgerald would be able to proceed with her lawsuit against the District as “a surrogate defendant based on the negligent acts” of the District’s maintenance staff. Duffell, 651 So.2d at 1179.

The legislature has failed to define the term “unrelated works.” See Lopez v. Vilches, 734 So.2d 1095, 1096 (Fla. 2d DCA 1999). The unrelated works exception in worker’s compensation is unique to Florida. See Vause v. Bay Med. Ctr., 687 So.2d 258, 262 n. 2 (Fla. 1st DCA 1996).

After reviewing the case law in this area, we believe that the difficulty in applying the exception arises from the failure of the courts to articulate the legislative intent behind it. The different approaches in the various cases arise from a lack of consensus on the role of the exemption in the worker’s compensation law. We .note that the unrelated works doctrine is currently under review by the supreme court. See Taylor v. Sch. Bd. of Brevard County, 790 So.2d 1156 (Fla. 5th DCA 2001), review granted, 819 So.2d 140 (Fla. Apr.25, 2002); Sanchez v. Dade County Sch. Bd., 784 So.2d 1172 (Fla. 3d DCA 2001), review granted, 819 So.2d 139 (Fla. Apr.30, 2002).

The express legislative intent behind the worker’s compensation statute is to “assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” § 440.015, Fla. Stat. (1995). Worker’s compensation is a quid pro quo statute; the employee foregoes the right to sue in exchange for the employer’s assumption of liability without fault. See Grice v. Suwannee Lumber Mfg. Co., 113 So.2d 742, 745-46 (Fla. 1st DCA 1959).

To allow suits under the unrelated works exception will increase the employer’s costs. Justice Anstead has observed:

As a practical matter, when a fellow employee is sued under this exception, the employer’s liability insurance will presumably apply since the employee is acting in the scope of his employment in the unrelated work. So, an employee may recover in tort, and probably against his employer’s insurer, although his recovery may be reduced by any worker’s compensation lien imposed.

Duffell, 651 So.2d at 1179 (Anstead, J., concurring specially).

In passing the unrelated works exception, the legislature must have determined that the benefit of restoring common law rights to employees in certain circumstances outweighed the detriment of the increased cost to employers.

We conclude that the unrelated works exception should be narrowly construed. An expansive construction would obliterate the legislative intent that the system operate at “a reasonable cost” to the employer. To decide the case as Fitzgerald argues would erode the immunity provided under the worker’s compensation law; a large enterprise such as a hospital could be subdivided into numerous “unrelated works,” leading to a profusion of suits and a proliferation of costs.

As discussed by this court in Palm Beach County v. Kelly, 810 So.2d 560 (Fla. 4th DCA 2002), and School Board of Broward County v. Victorin, 767 So.2d 551 (Fla. 4th DCA 2000), the districts have utilized two different tests to determine whether employees are involved in “unrelated works” for purposes of the exclusion.

The first is a case-by-case analysis focusing on whether the employees in question are part of a team or on the same project. The second is a bright-line test examining the physical location of where the employees work and whether they have a unified business purpose. The bright-line test turns in part on interpreting the term “works” by using a “plain meaning” approach; “works” is “[a] factory, plant, or similar building or system of buildings where a specific type of business or industry is carried on.” Lopez, 784 So.2d at 1096 (quoting AmeRican Heeitage Dictionary of The English Language 1474 (1973)).

We hold that Fitzgerald’s claim fails under either analysis.

Fitzgerald was a surgical nurse whose duties included: interviewing the patient before surgery, preparing the operating room for surgery, bringing the patient to the operating room, assisting in the surgery, being a patient advocate while the patient was under anesthesia, and escorting the patient to the recovery room post-surgery. The facilities management department was responsible for maintenance projects throughout the hospital, which included courtesy visits to patient rooms. Both Fitzgerald and the maintenance team worked in the hospital.

Application of the case-by-case approach focuses on whether Fitzgerald and the maintenance department worked on the same project or were part of the same team. In Abraham, the second district found that a painter and a fluorescent lighting technician working at the same construction site participated in related works. See 666 So.2d at 233. The court stated that although “their work skills may have been ‘unrelated,’ their work was not.” Id. In Laing, a teacher was hit by a golf cart operated by a school custodian. The third district held that even though the employees had different duties and unrelated work skills, they were still involved in the same project providing school-related activities. See 731 So.2d at 20.

The cases under review by the supreme court, Sanchez and Taylor, followed the same approach as Laing. In Sanchez, a teacher was attacked in the parking lot and claimed that the security personnel engaged in “unrelated works.” 784 So.2d at 1172-73. The third district found no distinction between Sanchez and Laing and ruled that the employees’ activities both involved providing education-related services. See Sanchez, 784 So.2d at 1173. In Taylor, the fifth district held that a school bus attendant and a school bus mechanic performed related works because they provided “transportation services to ... school children.” 790 So.2d at 1157.

Under the case-by-case approach, Fitzgerald’s work and that of the maintenance personnel are related. Although they worked in different departments and had dissimilar duties that required separate skills, both performed services relating to the hospital’s mission, which was the treatment of patients.

Applying the bright-line test, Fitzgerald’s claim also fails, because she worked at the same physical location as the maintenance personnel and because she shared a unified business purpose with these fellow employees.

A proper application of the exemption was seen in Kelly. There, the employees that were involved in an automobile accident both worked for the county, but they had different job duties, worked on different projects at entirely separate locations, and furthered different business purposes for the county. See 810 So.2d at 562.

Because Fitzgerald’s claim fails under both “unrelated works” tests, we affirm the decision of the circuit court granting summary judgment to the District.

STEVENSON and MAY, JJ., concur.

      . See, e.g., Dade County Sch. Bd. v. Laing, 731 So.2d 19 (Fla. 3d DCA 1999); Turner v. PCR, Inc., 732 So.2d 342 (Fla. 1st DCA 1998), quashed on other grounds, 754 So.2d 683 (Fla.2000); Vause, 687 So.2d at 261-63; Abraham v. Dzafic, 666 So.2d 232 (Fla. 2d DCA 1995); Johnson v. Comet Steel Erection Co., 435 So.2d 908 (Fla. 3d DCA 1983).

      . See, e.g., Lopez, 734 So.2d at 1096-98.


author: STONE, J.

text:
    Denny MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-298.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Mills’ conviction and sentence following the trial court’s order revoking his probation.

In 1998, Mills pled no contest to the charges of attempted sexual battery on a child under twelve by a perpetrator under the age of eighteen and of committing a lewd, lascivious or indecent act. He was sentenced to two years in prison, followed by four years of probation and was later designated a sexual predator.

One of the conditions of Mills’ probation was that he complete a sex offender treatment program. Condition 17 of the probation order required “[ajctive participation in and successful completion of a sex offender treatment program.”

After being released from prison in January 2000, Mills was permitted to move to Kentucky. In late January, he was admitted into a sexual offender treatment program in that state, but was terminated from the program on October 31, 2000.

At the violation of probation (VOP) hearing, Keth Zimmerman-Hieks, a mental health counselor, testified that she terminated Mills from the rehabilitation program for multiple reasons, including “excessive absenteeism,” lack of participation and motivation, and for failure to take responsibility for his offending behaviors. According to Hicks, even when Mills did attend the group sessions, he did not actively participate and did not complete the requisite assignments in violation of his “contract” with the program.

Mills also violated the program’s policy of allowing only one unexcused absence every 90 days by accumulating six unexcused absences in six months. The contract, signed before Mills was admitted to the program, specifically explained which excuses would be considered unexcused absences. When Mills exceeded the allowable number of unexcused absences, a meeting was held in which Hicks placed Mills on probation for thirty days and warned him he could not have any more unexcused absences in the next 90 days or he would be terminated. After this meeting, Mills had two more unexcused absences.

Mills did not deny the number of unexcused absences he had accumulated or that his “excuses” were unacceptable under the contract. In addition, Mills conceded that he had not complied with the program’s requirement that he admit his guilt. In fact, when the program’s counselors discovered that Mills was a non-admitter, they allowed him to remain in group therapy only because many sex offenders initially deny their behaviors but are able to work through their denial. However, Mills continued to deny he was a sexual offender throughout the treatment program and the VOP hearing.

The trial court found that Mills had willfully and substantially violated the conditions of his probation by failing to complete his sex offender treatment program. The court found that the absences in and of themselves amounted to a willful, material and substantial violation of Mills’ probation. However, the court also deemed Mills’ continuous lack of participation a violation. In addition, the court refused to accept defense counsel’s argument that Mills should not have been made to admit his guilt during the treatment program when he had pled no contest to the charges.

We conclude that the trial court did not abuse its discretion in revoking Mills’ probation, as, on this record, the greater weight of the evidence supported the court’s decision.

Mills argues that the court did not have the discretion to, in essence, refuse to honor his “best interest” plea by revoking his probation for not admitting his criminal conduct. However, “[a] plea of nolo con-tendere admits the facts for the purpose of the pending prosecution” and is the same as a guilty plea insofar as it gives the court the power to punish. Vinson v. State, 345 So.2d 711, 713-15 (Fla.1977); Montgomery v. State, 821 So.2d 464, 466 (Fla. 4th DCA 2002). Furthermore, Mills has not moved to withdraw his plea in the trial court and, as the plea “remains of record,” he cannot argue that the punishment is unjust because he is not guilty. Archer v. State, 604 So.2d 561, 563 (Fla. 1st DCA 1992). In Archer, the appellant entered a nolo con-tendere plea and was ordered to undergo a psychosexual evaluation and to complete all recommended treatment as a condition of his probation. However, because he failed to admit he had a sexual problem, his psychologist discontinued the therapy sessions. The appellant argued that when he entered his no contest plea, he did not know he would be required to admit to his sexual problems to avoid violation of his probation. The district court reasoned that if the appellant entered his plea without a full understanding of its consequences, he should have moved to vacate either his plea or his judgment and sentence in the trial court. Because he had submitted neither motion to the trial court, his argument would not be considered on direct appeal. Id.

The Third District has also held that a defendant’s refusal to admit his guilt for purposes of completing a court-ordered treatment program was a willful violation of probation. See Arias v. State, 751 So.2d 184 (Fla. 3d DCA 2000)(appellant willfully and substantially violated his probation where he was unable to successfully complete court-ordered mentally disordered sex offender program due to his refusal to accept responsibility); but see Bennett v. State, 684 So.2d 242 (Fla. 2d DCA 1996)(court concluded that there was no probation violation where appellant, who had pled guilty to charge of sexual conduct with a child and was ordered to complete a sex offender treatment, had not been told he would have to admit guilt for underlying offenses).

As in Archer and Arias, Mills did not express any interest in successfully completing a sexual offender program in which he would have to admit his guilt. Successful completion of the program, however, was dependent on such an acknowledgment. Therefore, the court did not abuse its discretion in finding a violation.

The court also did not abuse its discretion in revoking Mills’ probation notwithstanding the absence of a specific time period within which he was to complete the program. See Archer, 604 So.2d at 563 (rejecting appellant’s argument that no probation violation occurred because the court had not assigned a specific time period in which he was to complete the therapy, where appellant denied committing the offenses charged and did not express a willingness to participate in the treatment program). In any event, this issue was not preserved. Counsel did not object on this basis at any time during the hearing.

Even if the issue had been preserved, Mills’ argument would, nonetheless, have failed. “Generally, un-excused absences from required therapeutic programs constitute willful violations of probation.” Marcano v. State, 814 So.2d 1174, 1176 (Fla. 4th DCA 2002). Mills argues that because the probation order did not specify a time period within which Mills was to complete the sex offender program, his excessive unexcused absences should not be grounds for revoking his probation. For support, he cites O’Neal v. State, 801 So.2d 280 (Fla. 4th DCA 2001), Jones v. State, 744 So.2d 537 (Fla. 2d DCA 1999), and Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995). While the cited cases did involve the lack of specificity as to a time period, they are distinguishable because, in each, the conduct was not deemed willful, as the appellant had expressed a willingness to complete the program after being discharged.

Here, Mills made no effort, and demonstrated no willingness to either be reinstated into treatment or to participate in a comparable program. Mills was terminated from the sex offender treatment program on October 31, 2000, and he did not seek treatment when he had the opportunity; the VOP warrant for his arrest was not filed until February 26, 2001. We recognize that his possible reinstatement was asserted at sentencing, but this was too late.

Moreover, Mills’ conduct prevented him from successfully completing the program. Reinstatement would have been pointless. See Archer, 604 So.2d at 563. Therefore, the conviction and sentence are affirmed.

GROSS and MAY, JJ., concur.


author: FULMER, Judge.

text:
    Steven T. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3899.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
   FULMER, Judge.

Steven T. Young appeals the denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand because the record provided by the trial court does not refute Young’s claim that he is entitled to additional jail credit.

On July 23, 1993, the trial court sentenced Young to 5.5 years in prison followed by three years’ probation on one count in Manatee County case number 93-503 and one count in Manatee County case number 93-504. The trial court ordered the sentences to run concurrent with each other and awarded Young 144 days of jail credit in both cases. In 2001, Young was arrested for violating his probation, and the trial court sentenced him to seven years in prison with credit for 247 days in both cases.

In his motion, Young claims that he was arrested in Palm Beach County on October 4, 2001, on the violation of probation warrant from Manatee County and held in the Palm Beach County jail until December 21, 2001. Young claims that he was held in the Manatee County jail from December 21, 2001, until April 2, 2002, when he was sentenced on the violation of probation charges. He claims that he is entitled to additional jail credit for the time he spent in the Palm Beach County jail. The trial court denied this claim, stating that because Young had already been awarded 247 days of jail credit, he was not entitled to additional jail credit. The trial court did not explain its calculation. However, we observe that the dates Young alleges he was held in the Manatee County jail total 103 days which, if added to the original 144 days of jail credit, equals 247 days.

Nothing in the record indicates that the time Young spent in the Palm Beach County jail was calculated into the amount of jail credit awarded, and the trial court fails to address this claim for jail credit in its order denying relief. Therefore, we reverse and remand for the trial court to consider whether Young is entitled to credit for the days he was held in the Palm Beach County jail. If Young was arrested on the Manatee County warrant in Palm Beach County, as opposed to being held on a detainer, he is entitled to credit for the time he spent in the Palm Beach County jail. See Gethers v. State, 838 So.2d 504 (Fla.2003). If the trial court denies Young’s claim, it must attach portions of the record which demonstrate that he is not entitled to jail credit for the time he spent in the Palm Beach County jail.

Reversed and remanded.

DAVIS and CANADY, JJ., concur.


text:
    In re JUDICIARY COMMISSION NOS. 162-176.
    No. 2003-O-0131.
    Supreme Court of Louisiana.
    Jan. 15, 2003.
   PER CURIAM.

Respondent, a judge against whom proceedings are pending in the Judiciary Commission, presents three motions to this court: a motion to continue, a motion to enroll new counsel and a motion to dismiss. We decline to address these motions.

With regard to respondent’s motion to enroll counsel and motion to continue, the application indicates the Judiciary Commission has not yet ruled on the motion to enroll and has not been presented with a motion to continue. Accordingly, respondent’s request for relief in this court is premature.

Respondent also asks us to dismiss the formal charges against her. The Louisiana Constitution gives the Supreme Court authority to discipline judges following a recommendation of the Judiciary Commission. As of this date, there has been no such recommendation by the Commission in this matter.

Whether there is evidentiary and legal support for the imposition of discipline is a matter for the Commission to decide at such time as it should decide to recommend discipline, and for this Court to determine if, and only if, and when the Commission decides to file a record in this Court with a recommendation for the imposition of discipline. See In re: ABC, Judge, 95-2417 (La.11/13/95). Accordingly, we decline to address the motion to dismiss.


author: JjPER CURIAM.

text:
    In re David Allan HILBURN.
    No. 2001-B-2330.
    Supreme Court of Louisiana.
    Jan. 24, 2003.
   ATTORNEY DISCIPLINARY PROCEEDDINGS

JjPER CURIAM.

This disciplinary matter arises from three sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, David Allan Hilburn, a currently disbarred attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

99-DB-027

Count I

In October 1995, Rebecca Aucoin paid respondent $500 to handle a divorce and child custody matter. Respondent initially performed some work on his client’s behalf, but he failed to complete the representation. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In August 1998, Ms. Aucoin filed a complaint against respondent with the ODC. On September 11, 1998, the ODC forwarded a copy of the complaint to respondent at his primary registration statement address. Respondent failed to reply to the complaint.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with Ra client), 1.5(f) (payment of fees in advance of services), 1.16(a) and (d) (termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Count II

In February 1997, Frank and Annie Gal-breath retained respondent to prepare new wills for them. Thereafter, the Galbreaths sought to have respondent modify the wills; however, he failed to do so.

In an unrelated matter, Chester Veach retained respondent to handle the succession of his mother, Birdie Foshee Veach, who died intestate in January 1997. Respondent subsequently caused the signature of Damon Veach, Chester Veach’s brother, to be forged on a pleading filed in the court record of the succession.

In September 1998, Damona Veach, the daughter of Damon Veach and the greatr niece of the Galbreaths, filed a complaint against respondent with the ODC. On September 21, 1998, and again on October 22, 1998, the ODC forwarded a copy of the complaint to respondent at multiple addresses. Respondent failed to reply to the complaint.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.4,1.7(b) (conflict of interest), 1.14 (client under a disability), 8.1(c), 8.4(a), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g).

| -¡Count III

On May 29, 1998, this court suspended respondent from the practice of law for a period of one year and one day. In re: Hilburn, 98-0288 (La.5/29/98), 715 So.2d 395. By letter dated September 25, 1998, respondent communicated with several persons concerning his handling of the succession of Annie Foshee Galbreath. On the same date, the heirs terminated respondent’s representation and directed him to release the file in the matter; however, he failed to do so. By letter dated October 8, 1998, Hal Lyons, the attorney who was retained to complete the succession, also requested the succession file, but again, respondent failed to comply with the request.

In September 1998, Mr. Lyons filed a complaint against respondent with the ODC. On October 6, 1998, the ODC forwarded a copy of the complaint to respondent at his primary registration statement address. Respondent failed to reply to the complaint.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.16(a) and (d), 5.5(a) (engaging in the unauthorized practice of law), 8.1(c), 8.4(a), 8.4(c), 8.4(d), and 8.4(g).

On April 21, 1999, the ODC filed three counts of formal charges against respondent in 99-DB-027. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, no formal hearing was held, and the matter was submitted to the hearing committee on January 7, 2000 solely on the ODC’s documentary evidence. See Supreme Court Rule XIX, § 11(E)(3). Following its | consideration, the hearing committee filed a recommendation of disbarment on September 25, 2000. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

99-DB-103

In April 1997, Dolores Boddie Kimminau retained respondent to handle the succession of her mother, Cannie Boddie. Mrs. Kimminau’s husband, Jerome, paid respondent’s fee of $750, court costs of $115, and inheritance taxes of $1,640.68. On April 21, 1997, respondent obtained a judgment of possession recognizing Mrs. Kimminau and her two sisters as sole heirs and placing each of them in possession of an undivided one-third interest in Mrs. Boddie’s property. Respondent estimated that each of the three heirs was to receive the net sum of $37,669.19 in cash, and he retained $8,839.55 for payment of any outstanding expenses. Thereafter, respondent was advised that one of the heirs, Murvis Boddie McClelland, did not receive her share of the succession proceeds. Respondent advised that he had forwarded the funds to Mrs. McClelland in the form of a cashier’s check, and that it must have been lost in the mail. Respondent subsequently satisfied the payment due to Mrs. McClelland, but in order to do so, he borrowed $12,661.19 from Mrs. Kimminau. On August 29, 1997, respondent executed a promissory note in favor of Mrs. Kimmi-nau in the amount of $12,661.19, payable at such time as he was reimbursed for the lost cashier’s check, but not later than November 1, 1997. Respondent did not repay Mrs. Kimminau and he failed to pursue the issue of the lost cashier’s check. Respondent subsequently severed all communication with the Boddie heirs and failed to respond to any demands for payment of the promissory note. He also failed to account for the $8,839.55 he withheld for debts owed by the succession.

| RIn May 1999, Jerome Kimminau filed a complaint against respondent with the ODC. On June 14,1999, the ODC forwarded a copy of the complaint to respondent at his primary registration statement address. Respondent failed to reply to the complaint.

On October 14, 1999, the ODC filed one count of formal charges against respondent in 99-DB-103, alleging that his conduct in this matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.8(a) (prohibited transactions between a lawyer and client), 1.15(a), (b), and (e) (safekeeping property of clients or third persons), 1.16(d), 8.1(c), 8.4(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(g). Respondent failed to answer or otherwise reply to the formal charges. Accordingly, no formal hearing was held, and the matter was submitted to the hearing committee on April 19, 2000 solely on the ODC’s documentary evidence. Following its consideration, the hearing committee filed a recommendation of disbarment on June 2, 2000. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

00-DB-002

As previously noted, this court suspended respondent from the practice of law for a period of one year and one day on May 29, 1998. On July 3, 1998, Kayla Hopper paid respondent $500 to represent her son in a matter pending in juvenile court. Respondent had several discussions with Ms. Hopper concerning his efforts in handling the matter, and he advised her that he was trying to resolve the matter with the district attorney. However, respondent did not inform his clients of his suspension from the practice of law. On February 12, 1999, respondent appeared in court for a hearing in the matter, but before the case was called, he was removed from the | ^courtroom by the City Marshall for engaging in the unauthorized practice of law. Respondent has never refunded to Ms. Hopper the legal fee she paid.

In August 1999, Ms. Hopper filed a complaint against respondent with the ODC. On September 23, 1999, the ODC forwarded a copy of the complaint to respondent at multiple addresses. Respondent faded to reply to the complaint.

On January 7, 2000, the ODC filed two counts of formal charges against respondent in 00-DB-002, alleging that his conduct in this matter violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a), 8.1(c), 8.3(a) (reporting professional misconduct), 8.4(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(g). Respondent failed to answer or otherwise reply to the formal charges. Accordingly, no formal hearing was held, and the matter was submitted to the hearing committee on May 18, 2000 solely on the ODC’s documentary evidence. Following its consideration, the hearing committee filed a recommendation of disbarment on June 7, 2000. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board issued a single recommendation to this court encompassing the three sets of formal charges. After reviewing the record of this matter, the board agreed the Rules of Professional Conduct were generally applied correctly. The board found that respondent knowingly and intentionally violated |7duties owed to his clients, the public, the legal system, and the profession. In 99-DB-027, the board found respondent neglected his clients’ legal matters and failed to release the Galbreath succession file after his representation was terminated. In 99-DB-103, the board found that Mrs. Kimminau was deprived of a substantial amount of funds due her, that respondent failed to account for the sums he withheld for debts owed by the Boddie succession, that he neglected the succession matter, and failed to communicate with his clients. Finally, in 00-DB-002, the board found respondent failed to inform Ms. Hopper that he had been suspended from the practice of law and therefore could not represent her son in the juvenile matter, and that he never refunded the $500 fee Ms. Hopper paid. In each of the three sets of formal charges, the board found respondent disobeyed his professional obligation to cooperate in the disciplinary investigation of the underlying complaints. The board concluded this misconduct is serious and that the applicable baseline sanction is disbarment.

As aggravating factors, the board recognized prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and indifference to making restitution. The board found no mitigating factors are present.

|sIn light of these findings, and particularly considering respondent’s previous disciplinary history, the board concluded there is no reason to deviate from the baseline sanction, and recommended respondent be disbarred. The board also recommended that respondent be ordered to make restitution and/or provide an accounting to his victims.

Although neither respondent nor the ODC objected to the disciplinary board’s recommendation, this court, on its own motion, ordered briefing pursuant to Supreme Court Rule XIX, § 11(G)(1)(a). The court’s September 18, 2002 order directed the parties “to address whether the sanction of permanent disbarment pursuant to Supreme Court Rule XIX, Sections 10(a) and 24, as amended August 1, 2001, is appropriate under the facts of this ease.”

DISCUSSION

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

Based on our independent review, we conclude the findings of the hearing committee, as modified by the disciplinary board, are supported by the record. It cannot be disputed that respondent has violated numerous provisions of the Rules of Professional Conduct. There are no mitigating factors present; however, numerous | Baggravating factors exist. Under these circumstances, we conclude the baseline sanction is disbarment. However, given the egregiousness of respondent’s misconduct, we will further consider whether permanent disbarment is warranted.

On August 1, 2001, after a lengthy period of study and public comment, this court adopted amendments to Supreme Court Rule XIX, § 10 and § 24 to provide for the sanction of permanent disbarment. In re: Gros, 98-0772 (La.3/15/02), 815 So.2d 799; In re: Parker, 00-3532 (La.3/15/02), 815 So.2d 794; In re: Patrick, 01-1419 (La.3/15/02), 815 So.2d 804. In our commentary accompanying the amendment, we stated, in pertinent part:

In the public interest, the Court has amended Louisiana Supreme Court Rule XIX to codify Permanent Disbarment as an available sanction for attorney misconduct. While the Court has always had the discretion to deny an application for readmission after the requisite five (5)-year waiting period after disbarment, an attorney who is permanently disbarred under these circumstances will be prohibited from applying for readmission to the bar. These amendments reflect the judgment of the Court that in some instances lawyer misconduct may be so egregious as to warrant a sanction of permanent disbarment based on the facts of an individual case and in consideration of the guidelines in |inAppendix E to the Rules of Lawyer Disciplinary Enforcement.

In Appendix E, we set forth several guidelines illustrating the type of cases which might warrant permanent disbarment. We explained that these guidelines were not intended to bind this court in its decisionmaking, but to provide “useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.” Under Guidelines 1, 8, and 9, respectively, “repeated or multiple instances of intentional conversion of client funds with substantial harm,” “following notice, engaging in the unauthorized practice of law ... during the period of time in which the lawyer is suspended from the practice of law or disbarred,” and “instances of serious attorney misconduct ... preceded by suspension or disbarment for prior instances of serious attorney misconduct ...” are grounds for permanent disbarment. Clearly, respondent’s conduct in the matters at issue falls squarely within these guidelines.

As recently noted in In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934, we do not lightly impose the sanction of permanent disbarment. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. Respondent’s conduct is unquestionably serious in nature. He engaged in the unauthorized practice of law on more than one occasion and in more than one client matter. Furthermore, he neglected his clients’ legal matters, failed to communicate with his clients, failed to refund unearned legal fees, engaged in conduct that is a conflict of interest, converted client funds, and failed to cooperate with the ODC in its investigation. This court cannot and will not tolerate such conduct by an attorney, upon whom high standards of honesty and righteousness are erected. See Louisiana State Bar Ass’n v. Haylon, 250 La. 651, 198 So.2d 891, 892 (1967). Because respondent does not possess the requisite moral fitness to practice law in this state, he must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of David Allan Hilburn 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 restitution to his clients and to injured third parties. 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.

      . Respondent has been disbarred since June 18, 1999. In re: Hilburn, 99-1039 (La.6/18/99), 737 So.2d 27.

      . Mrs. Galbreath, who died on September 15, 1998, is one of the clients subject of Count II of the formal charges in 99-DB-027.

      . According to the ODC's investigators, one of the heirs confronted respondent about the suspension of his law license. Respondent informed his clients that the suspension was "a misunderstanding” and that "a Supreme Court Justice would re-instate his license the following Monday.”

      . The only asset of the succession was a checking account.

      . According to Ms. Hopper’s complaint, the City Marshall called respondent away and discussed the situation with him privately. Shortly afterwards, respondent returned to the courtroom and told his clients that he "did not practice this type of law anymore and was working for a corporation,” and that he "had been paged and would need to leave.” Respondent assured his clients that "everything was arranged” and that they could "go in front of the judge with no worries.”

      . In 99-DB-027, the hearing committee inadvertently included a finding that respondent violated Rule 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority) of the Rules of Professional Conduct, though such a violation was not charged in the formal charges. In addition, the disciplinary board declined to find that respondent failed to return an unearned fee in Count I of 99-DB-027, citing a lack of evidence that Ms. Aucoin paid a $500 fee to respondent.

      . Respondent was disbarred by this court in 1999 for various knowing and intentional misconduct, including neglect of legal matters, conversion of client and third-party funds, and failure to provide restitution. In re: Hilhurn, 99-1039 (La.6/18/99), 737 So.2d 27. At the time the order of disbarment was entered, respondent was then suspended from the practice of law for a period of one year and one day for misappropriating funds from the Bossier Parish Bar Association while acting as its treasurer. In re: Hilburn, 98-0288 (La.5/29/98), 715 So.2d 395. In addition, respondent was admonished by the disciplinary board in 1996 (96-ADB-050) and 1997 (97-ADB-031) for failing to cooperate in disciplinary investigations.

      . Supreme Court Rule XIX, § 10(A) was amended to add the highlighted language:
      (1) Disbarment by the court. In any order or judgment of the court in which a lawyer is disbarred, the court retains the discretion to permanently disbar the lawyer and permanently prohibit any such lawyer from being readmitted to the practice of law.

      . Supreme Court Rule XIX, § 24(A) was amended to add the highlighted language:
      A disbarred lawyer or a suspended lawyer who has served a suspension period of more than one year, exclusive of any waivers or periods of deferral, shall be reinstated or readmitted only upon order of the court.... No lawyer may petition for readmission until five years after the effective date of disbarment. A lawyer who has been placed on interim suspension and is then disbarred for the same misconduct that was the ground for the interim suspension may petition for readmission at the expiration of five years from the time of the effective date of the interim suspension. The court retains the discretion, in accordance with Section 10A of this rule, to permanently disbar a lawyer and permanently prohibit any such lawyer from being readmitted to the practice of law.