author: FARMER, C.J. ANDREWS, ROBERT LANCE,

text:
    T.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4683.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Carey Haughwout, Public Defender, and Michael Antinori, 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.
   FARMER, C.J.

We affirm a juvenile’s conviction for knowingly disrupting a school function. The incidents occurred at an awards ceremony at a high school. The juvenile argues that she was entitled to a judgment of acquittal. From an examination of the record, we conclude that there was sufficient evidence that she “knowingly” disrupted the proceedings.

When one school official was asked to describe the juvenile’s conduct that led to a decision to have the police remove her, he answered:

“Yelling, screaming. She stood up when she was not permitted to. She came to the back requested to use the bathroom, we told her ‘no, we’re too close to dismissal.’ She insisted on going to the bathroom. Instead of us making a big scene, [we] let her pass. When she came out, I was standing there with [another assistant principal] and [we] said ... ‘when you go back, you’re to maintain the dignity that’s expected of you on this occasion.’ Five minutes later or two minutes later, she’s screaming again. It was that time that we made a decision it was better to have her removed. She was asked to leave. We would have walked her out, had ... her sit in the cafeteria or sit out on the steps out of the Gymnasium. That was our intention just to remove the noise factor.”

Yet when the officer asked her to leave, she refused. The officer testified that he placed his hand behind her right arm to escort her out, and she “jerked backwards refusing to go.” That incident “absolutely” caused “a scene.” With the aid of another officer, the juvenile was forcibly removed. An assistant principal testified that the juvenile’s refusal to leave with the police officer disrupted the events.

Section 877.13 states that “[i]t is unlawful for any person knowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.” § 877.13, Fla. Stat. (2003). The statute is designed to prohibit acts that are “specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on the school’s property.” T.H. v. State, 797 So.2d 1291, 1292 (Fla. 4th DCA 2001) (quoting M.C. v. State, 695 So.2d 477, 483 (Fla. 3d DCA 1997)) (holding that statute is not overbroad or unconstitutionally vague). This “is to ensure that the educational institutions and their administrators are free to perform their lawful functions without undue or unwarranted interference or disruption from others.” M.C., 695 So.2d at 480. “[I]ts intended purpose is to prevent only that expression or conduct which materially disrupts or interferes with normal school functions or activities.” Id. at 481.

It is true that one is entitled to resist an unlawful seizure without violence and thereby avoid committing the crime of resisting arrest. McNeil v. State, 746 So.2d 547, 550 (Fla. 5th DCA 1999). Thus while this juvenile might have been able to resist a seizure by officers arising from similar conduct outside of school in the general public, she could not do so at a school function where her resistance itself disrupted the event. There is no suggestion in the testimony of anyone that her conduct in refusing to accompany the police officer was anything but knowing and purposeful on her part.

AFFIRMED.

POLEN, J., concurs.

ANDREWS, ROBERT LANCE, Associate Judge, concurs specially with opinion.

ANDREWS, ROBERT LANCE,

concurring specially.

I agree with the holding of the majority, but write separately to emphasize the long recognized principle that “the conduct and discipline of the public schools and public school system is vested primarily in the county boards of public instruction and so long as disciplinary measures imposed by them are within reason, they will not be disturbed.” Satan Fraternity v. Bd. of Pub. Instruction, 156 Fla. 222, 22 So.2d 892, 893 (1945).

In the matter below, appellant was charged with violating section 877.13(l)(a), Florida Statutes (2003), which makes it unlawful for any person “knowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.” Appellant was charged with violating this statute for knowingly disrupting the school’s annual awards ceremony. Prior to the awards ceremony, the principal set out the guidelines with regard to the students’ conduct. The principal instructed students that they could clap, but should only do so after the recipient had received his or her award. Furthermore, the principal told the students that no yelling was to take place during the ceremony. Despite these rules being set, appellant was talking and yelling loudly during the school awards ceremony. Appellant was informed on a number of occasions that her conduct was inappropriate. Rather than complying with the order to lower her voice and follow the guidelines which had been set, she became confrontational and continued to engage in the forbidden conduct. Finally, her behavior was such that she had to be forcibly removed by the campus police, which caused the ceremony to be halted temporarily. These facts establish that appellant committed acts which a reasonable person would expect to cause a disturbance, and she acted with intent or reckless disregard of the consequences of her behavior, and the trial court properly denied her motion for acquittal. See S.H.B. v. State, 355 So.2d 1176 (Fla.1977).

Appellant was charged because she willfully failed to abide by the school’s regulations regarding conduct at the awards ceremony. As was so eloquently stated by the court in Stevenson v. Wheeler County Board of Education, 306 F.Supp. 97 (SD.Ga.1969):

Among the things a student is supposed to learn at school ... is a sense of discipline. Of course, rules cannot be made by authorities for the sake of making them but they should possess considerable leeway in promulgating regulations for the proper conduct of students ... By accepting an education at public expense pupils at the elementary or high school level subject themselves to considerable discretion on the part of school authorities as to the manner in which they deport themselves. Those who run public schools should be the judges in such matters, not the courts. The quicker judges get out of the business of running schools the better.

Id. at 101.

The school was acting reasonably in establishing what constituted appropriate behavior at the awards ceremony, and the disciplinary measures to be taken when the administrators found appellant’s conduct was interfering with a lawful school function. If the school did not arbitrarily exceed its authority, it is not for the courts to interfere with its action.


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    Ricardo BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2890.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Carey Haughwout, Public Defender, and Gary Caldwell, 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.
   MAY, J.

The defendant appeals his conviction and sentence on two counts of aggravated assault on a law enforcement officer. He raises four issues, one of which we find has merit. We reverse in part and remand the case for a reduction in the charges and resentencing.

On the evening of September 10, 2001, Officers Rauch and Good were patrolling an apartment complex as off-duty officers. The officers encountered the defendant loitering in the complex parking lot, sitting on the hood of a car. Upon asking the defendant to leave the premises, the defendant went into “an immediate rage, out of control, yelling, carrying on, screaming.” This encounter resulted in the officers having to have the defendant’s car towed because it was parked blocking the street. Irate that the officers towed his car, the defendant called 911 and threatened Officer Rauch’s life.

On October 4, 2001, the officers were again patrolling the apartment complex in a marked police car. They spotted the defendant walking down the street. Later that evening, they passed the defendant while he was walking along the sidewalk. Officer Rauch looked over his shoulder and saw the defendant charging the rear right of the police vehicle, crouched over and holding something close to his body. Officer Good testified that he heard the defendant yell: “Do you want a piece of this?” Both officers ducked and Officer Good hit the accelerator to get away.

Approximately twenty minutes later, the officers saw a car heading toward them. Officer Rauch recognized the car as belonging to the defendant. “The car came right in our direction, not totally head on, but right towards us without coming off the gas, without any swerving, without anything, like we were going to get hit head-on by this car.” The officers swerved to avoid the crash. The defendant’s car ended up in the same lane as the officers. The defendant took off as the officers exited their car. The defendant later turned himself in after an arrest warrant had been issued.

A jury convicted the defendant of two counts of aggravated assault on a law enforcement officer. It is from this conviction and the resulting sentence that the defendant appeals.

The defendant first argues that the trial court abused its discretion in admitting testimony concerning the first encounter. We disagree. The trial court found that the evidence of the first incident was inextricably intertwined with the charged crimes and necessary to “adequately describe” how the officers knew the defendant’s car and why the defendant would assault them. See Pittman v. State, 646 So.2d 167 (Fla.1994); Griffin v. State, 639 So.2d 966 (Fla.1994). We find no abuse of discretion in this ruling.

Relying on Wallace v. State, 724 So.2d 1176 (Fla.1998), the defendant next argues that he could not be convicted of two counts of aggravated assault on a law enforcement officer because both charges arose from a single incident. In Wallace, the defendant assaulted an officer and battered another while both officers were trying to secure the defendant’s arrest. The jury found the defendant guilty of two counts of resisting an officer with violence. The supreme court held that the defendant could not be convicted of two counts of resisting arrest for a single incident. In doing so, the supreme court reiterated the Grappin/Watts “a/any test” and applied the rule of lenity. See State v. Watts, 462 So.2d 813 (Fla.1985); Grappin v. State, 450 So.2d 480 (Fla.1984).

Most recently, however, our supreme court addressed the “a/any test” in Bautista v. State, 863 So.2d 1180 (Fla.2003). The court explained the analysis to be used in determining whether multiple convictions for a specified crime can result from a single incident.

“Legislative intent is the polestar that guides a court’s statutory construction analysis.” Id. at 1185. First, courts should look to the statute’s actual language. Only if it is unclear should the court resort to traditional rules of statutory construction and examine legislative history. When that occurs, the court should review the statute as a whole, look to the “evil to be corrected, the language, title, and history” to determine the statute’s intent. Id. (quoting State v. Anderson, 764 So.2d 848, 849 (Fla. 3d DCA 2000)). Applying these principles, the supreme court held that the DUI manslaughter statute allowed for separate convictions for each victim even though the deaths arose from a single vehicular accident.

The court clarified that the “a/any test” “serves as a valuable but nonexclusive means to assist courts in determining the intended unit of prosecution.” Id. at 1188. When the legislature uses the article “a”, the unit of prosecution is clear. However, when the adjective “any” is used, ambiguity may arise, and the “a/any test” provides a means for applying the rule of lenity. The court made clear, however, the use of the word “any” does not automatically render the statute ambiguous. Id. The “a/any test” is of little value in this case because the statute does not employ either word.

Applying this process to the statute in question leads to the conclusion that the legislature intended the aggravated assault statute to allow for multiple convictions from a single incident. The aggravated assault statute’s actual language reveals clear legislative intent. There is no need to resort to statutory construction and legislative history.

The assault statute requires the State to prove that the “unlawful threat by word or act to do violence” created “a well-founded fear” in the victim to support a conviction. § 784.011(1), Fla. Stat. (2001). Thus, there must be evidence that each victim experienced a “well founded fear” for multiple convictions to result from a single incident. In this case, both officers testified to having been placed in fear. The multiple convictions are therefore affirmed in this respect.

The defendant next argues that the victims were not acting as law enforcement officers at the time of the offense and therefore the charges should be reduced from aggravated assault on a law enforcement officer to aggravated assault. We agree with the defendant on this issue.

Subsection (2) of section 784.07, Florida Statutes (2001) provides:

(2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer, ... engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified as follows:
(c) In the case of aggravated assault, from a felony of the third degree to felony of the second degree. Notwithstanding any other provision of law, any person convicted of aggravated assault upon a law enforcement officer shall be sentenced to a minimum term of imprisonment of 3 years.

There is no dispute that the victims were law enforcement officers. The more difficult question is whether they were engaged in the lawful performance of their duties at the time of the incident. We find Nicolosi v. State, 783 So.2d 1095 (Fla. 5th DCA 2001), helpful in resolving this issue.

In Nicolosi, the fifth district reversed a conviction for battery on a law enforcement officer after the defendant slapped an off-duty police officer who was working at a nightclub checking identification. The court held that the State failed to prove that the off-duty officer was engaged in “activities of an official police nature, as opposed to activities exclusively for the interest of the private employer” and was merely “on the job” for the private employer. Id. at 1096-97.

There are times when an off-duty officer may be working for a private employer, but engages in activity of an official police nature. See, e.g., State v. Hartzog, 575 So.2d 1328 (Fla. 1st DCA 1991) (off-duty officer engaged in lawful performance of his duties when assisting investigation of suspect detained by store employee for shoplifting); Hughes v. State, 400 So.2d 533 (Fla. 1st DCA 1981) (off-duty officer engaged in lawful performance of duties when arresting suspect for shoplifting). But, that did not occur here. State v. Robinson, 379 So.2d 712 (Fla. 5th DCA 1980) (off-duty officer engaged in lawful performance of his duties when assisting two other officers struggling to maintain custody of a man they just arrested).

The evidence did not establish that the officers in this case deviated from their private employment of providing security to the apartment complex to undertake activity of an official police nature. We therefore reverse the convictions for aggravated assault on a law enforcement officer and remand the case to the trial court to reduce the convictions to charges of aggravated assault. This will require the court to resentence the defendant in light of the reduced charges. We find no merit in the remaining issue raised.

POLEN and KLEIN, JJ., concur.

      . We acknowledge that the United States Supreme Court reviewed a federal assault statute in Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), and found that multiple convictions for assault could not be sustained based on a single incident. However, the statute in this case is distinguishable from the federal statute examined in Ladner. In Ladner, the assault and resisting arrest offenses were contained within the same statute. The United States Supreme Court found no evidence of congressional intent to allow for multiple convictions based upon a single incident of resisting arrest or of firing a shotgun. Because Florida has separate statutes for these offenses, and the Florida assault statute evidences clear legislative intent to allow for multiple convictions, it does not suffer from the same ambiguity leading to the application of the rule of lenity as did the federal statute in Ladner. ,


author: KLEIN, J.

text:
    J.W. HODGES DRYWALL, INC., a Florida corporation, Appellant, v. MIZNER FALLS LLP, a Florida limited liability partnership, Appellee.
    No. 4D03-1998.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Bruce G. Kaleita of Bruce G. Kaleita, P.A., West Palm Beach, for appellant.

      Norman Malinski of Norman Malinski, P.A., Aventura, for appellee.
   KLEIN, J.

Appellant is a subcontractor who had a contract with a general contractor requiring arbitration of all disputes. After the subcontractor filed mechanic’s liens, the landowner, who was not a party to the subcontract, moved to compel the subcontractor to arbitrate the mechanic’s liens. The trial court granted the motion because the subcontract required arbitration of “all claims” arising out of the subcontract.

An owner who is not a party to a contract containing an arbitration clause cannot compel a subcontractor to arbitrate, unless the owner is a third party beneficiary of the contract. Nestler-Poletto Realty v. Kassin, 730 So.2d 324 (Fla. 4th DCA 1999). The subcontract in this case expressly provided that none of its provisions was “for the benefit of or enforceable by anyone other than the parties hereto.” Nor is a property owner generally considered a third party beneficiary of a contract between a general contractor and a subcontractor. Publix Super Mkts., Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987).

The order requiring arbitration is reversed.

STONE and TAYLOR, JJ., concur.


author: HAZOURI, J.

text:
    A.P.D. HOLDINGS, INC., a Florida Corporation, Appellant, v. Gary REIDEL, a/k/a Gary Westcott and Rachel Reidel, Appellee.
    No. 4D02-5124.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Alan M. Burger of Burger & Trailor, P.A., Miami, for appellant.
    Amy J. Fisher and Chris B. Fisher of Chris B. Fisher, P.A., Fort Lauderdale, for appellee Rachel Reidel.
   HAZOURI, J.

A.P.D. Holdings, Inc. (APD) appeals the trial court’s order dissolving a writ of attachment. We reverse.

In October 2002, APD filed a Complaint against Gary and Rachel Reidel based on breach of a lease agreement. APD sought damages in an approximate amount of $20,000. On December 2, 2002, APD filed an Ex Parte Motion for Writ of Attachment seeking to attach certain property owned by Rachel Reidel that was located in the state of Florida. In conjunction with the motion, APD posted a surety bond with the clerk of court. The trial court granted the motion and ordered a writ of attachment. On December 19, 2002, Rachel Reidel filed a Motion for Immediate Dissolution of Writ of Attachment and Forfeiture of Bond. On that same day, she also filed a Notice of Hearing stating that a hearing on her motion for dissolution would be held on December 20, 2002 at 10:00 a.m.

On December 20, 2002, at approximately 8:45 a.m., APD filed a Motion to Continue Hearing and served a copy on the trial judge. APD requested that the hearing be continued in order for its president, Robert Dziurgot, to travel to Florida from Massachusetts. The motion stated that after receiving the notice of hearing, Mr. Dziurgot made a reservation on a flight to arrive in Fort Lauderdale at 10:22 a.m. on December 20th, approximately twenty-two minutes after the time that the hearing was scheduled to start.

The trial court denied the motion and the hearing took place as scheduled. At the close of the hearing, the trial court determined that the writ of attachment was invalidly obtained and immediately entered an order granting the motion and dissolving the writ.

APD argues that the trial court should have granted its motion for continuance. We agree. The denial of a motion to continue is governed by the abuse of discretion standard of review. See Geralds v. State, 674 So.2d 96, 99 (Fla.1996). Florida courts have held that it is reversible error to refuse to grant a motion for continuance where a party or his or her counsel is unavailable for physical or mental reasons which prevent a fair and adequate presentation of the party’s case. See Ziegler v. Klein, 590 So.2d 1066, 1067 (Fla. 4th DCA 1991). In the instant case, APD requested the continuance so that Mr. Dziurgot could testify at the hearing regarding the basis for the writ of attachment. Due to the short notice, Mr. Dziur-got was physically unavailable and would not be available until after his arrival in Fort Lauderdale at 10:22 a.m.

In Fleming v. Fleming, 710 So.2d 601 (Fla. 4th DCA 1998), this court set out factors to be considered in determining whether the trial court abused its discretion in denying the motion for continuance. These factors include: whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance. Id. at 603.

In the instant case, the denial of the continuance created an obvious injustice for APD. As the president of APD, Mr. Dziurgot had personal knowledge of the issues. It was his affidavit that had provided the basis for the issuance of the writ of attachment. In addition, his testimony was relevant to the statutory considerations outlined in section 76.24, Florida Statutes (2002), “Dissolution of Attachment.”

Under the circumstances, the request for continuance was not the result of dilatory practices on the part of APD, but rather the result of the short notice of the hearing. Finally, even though the Reidels’ counsel informed the trial court that he would not be available later that day to conduct the hearing due to other commitments, it is not clear that the Reidels would have suffered any prejudice as a result of continuing the hearing until later that day or the next business day. Based on these factors, we hold that the trial court abused its discretion in denying APD’s Motion to Continue.

REVERSED.

POLEN and KLEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. S.C., a child, Appellee.
    No. 4D02-3403.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

The state appeals from the trial court’s dismissal of the petition for delinquency filed against appellee for possession of a weapon on school property. The state asserts that the trial court erred in granting the dismissal because it was entitled to the ten-day window provided for in Florida Rule of Juvenile Procedure 8.090. Citing State v. D.L., 841 So.2d 663 (Fla. 4th DCA 2003), appellee argues that the state is not entitled to the benefit of the recapture period because “the availability of the recapture period turns on whether the child’s inability to move for speedy trial discharge within a short time after the expiration of the ninety-day period is attributable to the child or to the State.” Id. at 666.

In the instant case, appellee was arrested on October 4, 2001, and the petition for delinquency was filed a week later. It was not served upon appellee within the ninety-day speedy trial time period. Appellee was arraigned on May 29, 2002, and on August 2, 2002, appellee filed his motion to dismiss. At the hearing held on August 7, 2002, counsel presented their arguments. Appellee argued that he was not arraigned until 105 days after the speedy trial period had expired, relying on D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002). After hearing testimony concerning the failure to serve appellee, the trial court concluded that the state’s attempts at service were insufficient and dismissal of the petition was required.

This court has recently receded from D.D. and D.L. in C.D. v. State, 865 So.2d 605, 2004 WL 86327 (Fla. 4th DCA Jan.21, 2004) (en banc). Following the plain language of Florida Rule of Juvenile Procedure 8.090, this court held:

When a juvenile is taken into custody, the State is given ninety days to bring the case to trial. When that does not occur, the juvenile may file a motion for discharge. The court must then set a hearing within five days to review the factors in subsection (d). If none of them apply, the State is given a ten-day window period within which to try the case. If the State fails to bring the case to trial within those ten days, the juvenile is discharged. If one of the factors in subsection (d) is found to exist, then the State is given ninety days within which to try the case.

Id. at 607. As none of the factors in subsection (d) apply in this case, the state should have been given the ten-day window period within which to try appellee. We conclude that the trial court erred in dismissing the petition. We reverse the dismissal and remand for further proceedings.

REVERSED and REMANDED.

STONE and WARNER, JJ., concur.


author: GUNTHER, J.

text:
    R.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3960.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Matthew D. Bavaro of the Law Offices of Matthew D. Bavaro, Esquire, PA., Da-vie, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   GUNTHER, J.

R.G. was charged with grand theft and burglary of a structure. He was acquitted on the charge of grand theft but found guilty of burglary of a structure. Adjudication was withheld and R.G. was placed on probation. R.G. now appeals his adjudication on the charge of burglary of a structure. Because we find that R.G.’s adjudication was not supported by the evidence, we reverse and remand.

R.G.’s charge of burglary of a structure arose out of an incident that occurred one night at the Bonaventure Country Club. At trial, testimony was introduced that R.G. and four others jumped a fence at the club and went into a maintenance area. The group started riding the golf carts that were stored there. The group then rammed the front fence causing it to fall and rode over the fence, taking the carts onto the golf course.

R.G. appeals, arguing that insufficient evidence was presented that he entered a structure. This court reviews a claim of insufficiency of the evidence to determine if there was competent and substantial evidence to support the finding of guilt. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981).

Section 810.011, Florida Statutes (2002), defines a structure as “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” Here, the State failed to present any evidence that R.G. entered a building or the curtilage of a building when taking the carts. Thus, the State failed to carry its burden as to an essential element of the crime charged, which was that R.G. entered a structure. See Davis v. State, 736 So.2d 27, 28 (Fla. 4th DCA 1999) (stating that entrance into a structure is an essential element of burglary); K.E.A. v. State, 802 So.2d 410, 412 (Fla. 3d DCA 2001) (stating that “the state failed to carry its burden of proving every essential element of the crime charged”). Because insufficient evidence was presented as to this essential element, R.G. should be discharged. See Tibbs, 397 So.2d at 1122, 1127. Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: PER CURIAM.

text:
    Kelvin Jurand THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2045.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    Kelvin Jurand Thompson, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kelvin Jurand Thompson, appeals from an order denying his fourth Florida Rules of Criminal Procedure 3.800(a) motion. This eighth challenge to his designation as an habitual felony offender and his attempt to contest his convictions and sentence qualifies for the “Enough Is Enough” rule. See Davis v. State, 705 So.2d 133 (Fla. 5th DCA 1998).

This court affirmed Thompson’s appeal of his original convictions and sentence in Thompson v. State, 718 So.2d 1257 (Fla. 5th DCA 1998). Thompson then began collaterally attacking his habitual felony offender sentence. We found Thompson’s current argument was without merit and issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999) (holding that court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond). Finding no merit in his response, we find that his successive challenges to his habitual offender sentence constitutes an abuse of the judicial system. See, e.g., Harvey v. State, 836 So.2d 1102 (Fla. 5th DCA 2003); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995).

Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve judicial resources, we prohibit Thompson from filing any additional pro se appeals, pleadings, motions and petitions relating to his convictions and sentence in the underlying case. Any further pleadings filed in this court relating to his convictions and sentence must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Kelvin Jurand Thompson regarding Brevard County, Eighteenth Judicial Circuit Court No. 05-1996-CF-08482-AXXX-XX.

AFFIRMED.

PETERSON, GRIFFIN and PALMER, JJ., concur.

      . Thompson v. State, 736 So.2d 1206 (Fla. 5th DCA 1999) (1st rule 3.850 motion denied); Thompson v. State, 741 So.2d 1138 (Fla.1999) (habeas corpus denied); Thompson v. State, 747 So.2d 951 (Fla. 5th DCA 1999) (2nd rule 3.850 motion denied); Thompson v. State, No. 00-455 (Fla. 5th DCA Feb. 28, 2000) (belated appeal denied); Thompson v. State, 767 So.2d 1225 (Fla. 5th DCA 2000) (1st rule 3.800(a) motion denied); Thompson v. State, 782 So.2d 401 (Fla. 5th DCA 2001) (2nd rule 3.800(a) motion denied); Thompson v. State, 842 So.2d 131 (Fla. 5th DCA 2003) (3rd rule 3.800(a) motion denied).


text:
    Y.M., Mother of S.I., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-2947.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee, Department of. Children and Families.
   PER CURIAM.

In this dependency action, Appellant challenges the sufficiency of the evidence supporting the trial judge’s finding of dependency. From our review of the evidence, we conclude that the findings of the trial judge are sufficient, and the trial judge’s findings are supported by substantial competent evidence. Appellant also challenges the written dependency order because it fails to comply with rule 8.330(g) of the Florida Rules of Juvenile Procedure by not stating “whether the court made the findings based upon a preponderance of the evidence or by clear and convincing evidence.” Appellant is correct. However, the trial court’s oral pronouncement clearly indicated that its findings of fact were based upon the preponderance of the evidence standard. We remand this cause, therefore, with instructions that the trial court enter an amended order reflecting its oral pronouncement on this issue. In all other respects, the trial court’s order is affirmed.

AFFIRMED in part; REVERSED in part and REMANDED.

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


text:
    Robert BARON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1519.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    Michael V. Giordano, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Jordan, 630 So.2d 1171, 1172 (Fla. 5th DCA 1993) (“A defendant who knowingly accepts the benefit of a plea bargain cannot thereafter disavow that bargain, any more than a party to a contract can accept the benefit of that contract and then refuse to perform his obligations thereunder”); Scott v. State, 465 So.2d 1359, 1361 (Fla. 5th DCA 1985) (“[A defendant] is not entitled to negotiate a plea, accept the benefit of it, and then ask the trial court, or this court, to grant him a better deal than the one agreed to by the state”).

THOMPSON, PALMER and MONACO, JJ., concur.


author: ORFINGER, J.

text:
    Thomas A. SHERROD, Petitioner, v. Lynette BERG, Respondent.
    No. 5D04-110.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    J. Richard Young of Amy E. Goodblatt, P.A., Orlando, for Petitioner.
    Patrick M. Magill, Orlando, for Respondent.
   ORFINGER, J.

On the motion of Thomas A. Sherrod, the trial judge, the Honorable Roger J. McDonald, entered an order of disqualification pursuant to Florida Rule of Judicial Administration 2.160 and referred the matter to the administrative judge for reassignment. Subsequently, the administrative judge reviewed Sherrod’s motion for disqualification and concluded that it was legally insufficient. As a result, the administrative judge reassigned the matter back to Judge McDonald. Sherrod now petitions this court for a writ of prohibition, precluding Judge McDonald from further participation in the matter.

Once an order disqualifying a judge is entered, the judge is prohibited from any further participation in the case. Lea v. Wigton, 705 So.2d 723, 723 (Fla. 5th DCA 1998); Dream Inn, Inc. v. Hester, 691 So.2d 555, 556 (Fla. 5th DCA 1997). Additionally, the administrative judge was without authority to overrule Judge McDonald’s original order of disqualification. A chief judge or an administrative judge has no appellate jurisdiction over the cases filed in his or her court. Fla. R. Jud. Admin. 2.050(b).

Accordingly, we grant the petition for writ of prohibition, quash the order setting aside the recusal order, and remand this case for assignment to a different trial judge.

PETITION GRANTED; ORDER QUASHED.

PALMER and TORPY, JJ., concur.


author: SHARP, W., J.

text:
    Christina PEADEN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 5D02-3233.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 2004.
    Christina Peaden, Orlando, pro se.
    Kevin W. Shaughnessy and Gary D. Wilson, of Akerman Senterfitt, Orlando, for Appellee City Cab Co. of Orlando, Inc.
    No Appearance for Appellee Unemployment Appeals Commission.
   SHARP, W., J.

Peaden appeals from a final order of the Unemployment Appeals Commission which upheld the determination by the appeal referee that she was discharged for misconduct and that she is therefore disqualified from receiving unemployment benefits. We affirm.

Although there were conflicts in the evidence as to whether Peaden had failed to follow the “proper chain of command” in not reporting a potentially dangerous driver working for her employer, the City Cab Company of Orlando, and the extent to which Peadon became abusive and used foul language to address her supervisors in the presence of other employees, the findings of the appeal referee are conclusive, in this case, because they are supported by competent substantial evidence. See Jackson v. Unemployment Appeals Commission, 730 So.2d 719 (Fla. 5th DCA 1999); Scholastic Book Fairs, Inc. Great American Div. v. Unemployment Appeals Commission, 671 So.2d 287 (Fla. 5th DCA 1996). The referee found that Peaden used profanity toward her supervisors during a counseling session and called one supervisor a vulgar name in front of other employees.

Should this conduct be sufficient to disqualify Peaden from receiving unemployment benefits under section 443.101(l)(a), Florida Statutes (2003), which bars recovery of benefits for employees discharged for misconduct? Misconduct is defined, among other things, as: “conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee.”

An isolated instance of an employee’s using vulgar language, not in the presence of others, or not directed at a supervising employee, may be insufficient. See, e.g., Bivens v. Trugreen LP, 845 So.2d 347 (Fla. 2d DCA 2003); Wrightington v. Unemployment Appeals Commission, 833 So.2d 202 (Fla. 5th DCA 2002). However, vulgarity directed towards a supervisor, in the presence of other employees, is sufficient to constitute misconduct under the statute. See, e.g., Davis v. Unemployment Appeals Commission, 715 So.2d 1157 (Fla. 5th DCA 1998); Suluki v. Unemployment Appeals Commission, 644 So.2d 552 (Fla. 5th DCA 1994). Such behavior tends to undermine the authority and respect for the employer, supervisor, or leader of an organization, and its overall morale, to such an extent that it cannot be tolerated — like mutiny on the high seas. Discharge or termination should be expected and it is serious enough to disqualify a fired employee from receiving unemployment compensation.

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.

      . § 443.036(29), Fla. Slat. (2003).


text:
    STATE of Louisiana v. Darrin HAYES.
    No. 2003-OK-1835.
    Supreme Court of Louisiana.
    Jan. 16, 2004.
   PER CURIAM.

Granted. The judgment of the district court assessing attorneys fees against the state for its failure to raise in a more timely manner its procedural objections to the application for post-conviction relief filed in the present case is set aside. The district court did not order the state to file its procedural objections as a matter of La.C.Cr.P. art. 927 at any time, and the court had no basis in law or in fact for sanctioning the state after it filed and ultimately prevailed on its procedural objection that the claim, asserting discrimination in the selection of the grand jury which returned the indictment, had been defaulted on the merits by trial counsel’s failure to file a motion to quash. See Deloche v. Whitley, 96-1901, p. 1 (La.11/22/96), 684 So.2d 349.


author: LPER CURIAM.

text:
    STATE of Louisiana v. George Stanley ROLAND.
    No. 2003-KO-1930.
    Supreme Court of Louisiana.
    Jan. 16, 2004.
   LPER CURIAM.

Granted in part; otherwise denied. The record below is insufficient to determine the merits of defendant’s ineffective assistance of counsel claim addressing the failure of counsel to request a jury instruction listing criminal trespass as a responsive verdict to the charged offense of unauthorized entry of an inhabited dwelling in violation of La.R.S. 14:62.3. Accordingly, we reverse that portion of the court of appeal’s decision purporting to reject the claim on the merits, but otherwise affirm the defendant’s conviction and sentence in all other respects, and refer the defendant to post-conviction proceedings. See State v. Armstrong, 02-2464 (La.9/5/03), 855 So.2d 731; see also State v. Simmons, 01-0293, pp. 6-7 (La.5/14/02), 817 So.2d 16, 21 (criminal trespass is a lesser and included offense of unauthorized entry of an inhabited dwelling, entitling defendant charged with the latter offense to instruction on the former, particularly when defendant would have escaped sentencing as multiple offender had he been convicted of a misdemeanor); State v. Hernandez, 02-0340 (La.App. 5th Cir.7/30/02), 824 So.2d 529 (same). 1 ^Accordingly, defendant’s claim of ineffective assistance shall not be considered fully litigated on direct appeal for purposes of La.C.Cr.P. art. 930.4(A). See State v. Robinson, 01-1373, p. 1 (La.4/26/02), 816 So.2d 846. In all other respects, the application is denied.

TRAYLOR, J., would deny the writ.


text:
    In re Robert T. DeFRANCESCH.
    No. 2004-B-0245.
    Supreme Court of Louisiana.
    Feb. 4, 2004.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Robert T. DeFrancesch, and the Office of Disciplinary Counsel,

IT IS ORDERED that Robert T. De-Francesch, Louisiana Bar Roll number 4802, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana


author: LCALOGERO, Chief Justice. | JOHNSON, Justice JjPER CURIAM.

text:
    In re Judge Joel G. DAVIS.
    No. 2003-O-2801.
    Supreme Court of Louisiana.
    Feb. 4, 2004.
    Order Granting Rehearing and Clarifying Decree Feb. 11, 2004.

      Nickel & Caballero, Milo A. Nickel, Jr., Lake Charles; Sharp, Henry, Cerniglia, Colvin, Weaver & Hymel, L.J. Hymel, Michael R. Davis, Baton Rouge, for Judge Joel G. Davis.
    Office of Special Counsel, Steven R. Scheckman, Special Counsel, for Judiciary Commission.
    Nancy E. Rix, Commission Counsel.
   LCALOGERO, Chief Justice.

This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana that respondent, Joel G. Davis, judge of the 33rd Judicial District Court, Parish of Allen, be suspended from office for a period of one hundred eighty (180) days and further ordered to reimburse the Commission costs incurred in the investigation and prosecution of this judicial discipline case. The recommended discipline arises out of Formal Charge No. 0190 filed by the Office of Special Counsel (“OSC”) following an investigation that found improprieties in Judge Davis’s appointing his father to represent indigent defendants before him and thereafter recusing himself, as well as in his actions in some of those cases post appointment. The OSC charged Judge Davis with violating La.Code Crim. Pro. art. 671A(2) and Canons 1, 2A, 2B, 3B(4) and 3(C) of the Code of Judicial Conduct (1996). The OSC also charged Judge Davis with engaging in willful misconduct relating to his official duty, for willful and persistent failure to perform his duty, and for persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, all in violation of La. Const. Art. V, § 25C (1974).

Based on stipulations of fact entered into by Judge Davis and the OSC, and the testimony of Judge Davis at the hearing conducted |aby the Commission, the Commission found the Formal Charge proven by clear and convincing evidence and recommended that the Court suspend Judge Davis for 180 days without pay and order him to reimburse the Commission its costs.

After reviewing the record, we find that the charge against Judge Davis is supported by clear and convincing evidence, the requisite standard of proof for ethical misconduct in judicial discipline cases. However, we find that Judge Davis’s behavior warrants a suspension of ninety (90) days and an assessment of costs for the Commission’s investigation, rather than the 180-day suspension recommended by the Commission.

FACTS AND PROCEDURAL HISTORY

In 2001, Judge Davis was the only district judge sitting in the 33rd JDC. Mr. Thomas J. “T. J.” Davis, the father of Judge Davis, is an attorney in Allen Parish and was the chief indigent defender in the 33rd JDC from 1990 to August 2002.

In a prior Judiciary Commission file numbered 98-1195, State Inspector General Bill Lynch had forwarded a complaint received by his office alleging certain conflicts of interest in Judge Davis’s court. On November 2, 1998, Judge Davis’s attorney [ ¡/responded, on Judge Davis’s behalf, to the complaint, stating that Judge Davis “does not hear any cases involving his father, directly or indirectly.” Judge Davis further advised the Commission, through his counsel, that the Indigent Defender Board (“IDB”) hired an additional lawyer “who handles cases before Judge Davis.” The Commission closed the file with a letter of counseling to Judge Davis, partially in reliance upon Judge Davis’s assurance that the conflict of interest with his father had been resolved.

In connection with the same file, Judge Davis asserted that before he took the bench, he wrote three letters to the Supreme Court Committee on Judicial Ethics seeking an advisory opinion on recusal issues. While no formal ethics opinion was issued to Judge Davis, Chief Deputy Judicial Administrator Timothy Palmatier sent a letter, on behalf of the ethics committee, to then Judge-elect Davis dated December |45, 1996, which among other reference material included the Code of Judicial Conduct and the Digest of Opinions of the Supreme Court Committee on Judicial Ehtics. Mr. Palmatier’s letter specifically advised Judge Davis as follows: “If you wish to receive a copy of any opinion in the digest, please ask and I will forward it to you.” Furthermore, in her January 25, 1999 letter to Judge Davis closing file no. 98-1195, Commission counsel Nancy Rix specifically advised him as follows:

First, the Commission is aware that questions regarding both the obligation to recuse and the obligation to hear a case that is assigned are often difficult to resolve. This can be particularly problematic when a judge sits in a district where he is the sole district court judge. You were correct to solicit assistance from the Judicial Administrator’s office with regard to these questions, and you are encouraged to continue to do so. However, when questions are posed that have been answered previously about an interpretation of the Code of Judicial Conduct, the inquiring judge will often be sent copies of prior decisions (based on the same issue but on different facts). This is often responsive and eliminates the need for the question to be submitted to the Supreme Court Committee on Judicial Ethics for a formal opinion. If the judge still believes that his question is not answered, the question will be submitted to the Committee. It is my understanding that Mr. Tim Palmatier sent to you copies of ethics advisory opinions regarding recusal and discussed filóse issued opinions with you to help you assess their relevance to your facts.

Ms. Lorrie Doyle initiated the proceeding now before this Court by the filing of a complaint against Judge Davis on September 5, 2001, alleging that her son, | ¡¡Christopher Doyle, was arrested and charged with attempted second-degree murder in Allen Parish. Judge Davis appointed his own father to defend Christopher Doyle. On August 16, 2001, Mr. Davis appeared with Mr. Doyle for arraignment and entered a plea of not guilty on Mr. Doyle’s behalf. After Judge Davis set the case for a jury trial on November 26, 2001, he granted Mr. Davis’s oral motion for an extension of time to file pretrial motions and denied Mr. Davis’s oral motion for bail reduction. Thereafter, the court’s minutes reflect that “[ijnasmuch as the court-appointed attorney is Judge Davis’[s] father, Judge Davis recuses himself from this matter.” Ms. Doyle complained that she did not believe it was proper for Judge Davis “to make any rulings on my son’s case where the judge’s father is the attorney for my son!”

The OSC forwarded a copy of Ms. Doyle’s complaint to Judge Davis for a response. Judge Davis’s lawyer, in written response dated Novemberl2, 2001, pointed out that Judge Davis’s father had “served for years as an Indigent Defender prior to Judge Davis’[s] election as judge.” Judge Davis’s lawyer’s correspondence also noted that, once elected, “Judge Davis recused himself in all matters involving his father.” The letter further stated that the IDB had two attorneys on staff, that a system was implemented whereby appointments were alternated between the two attorneys, and that Judge Davis recused himself at 72-hour hearings in which his father was appointed to represent a defendant. Judge Davis’s lawyer indicated in this letter, Judge Davis’s decision, although it was not his initial practice, to stay on the cases | r,through arraignment in order to expedite them. The letter stated that Judge Davis’s practice was to handle arraignments for defendants represented by his father, then recuse himself from those cases. The lawyer’s letter expressed concern that if Judge Davis were precluded from appointing his father in the agreed upon manner, he “effectively destroys his father’s livelihood.”

By letter dated January 24, 2002, the Commission notified Judge Davis that an investigation had been authorized into the allegations of Ms. Doyle’s complaint. On October 22, 2002, the Commission filed a Formal Charge against Judge Davis. The Formal Charge alleged that since November 3, 1998, Judge Davis had impermissi-bly appointed his father as counsel for indigent defendants in 238 specified cases, then recused himself from each case because of his relationship to his father, despite the fact that Judge Davis himself created the conflict by appointing his father to the cases. Furthermore, the charge noted that public funds were required for payment for the services of an ad hoc judge sitting in place of Judge Davis in these cases. The Commission further alleged that in many cases, Judge Davis impermissibly handled certain preliminary matters, including setting bail, recalling warrants, deciding discovery motions, and arraigning defendants, and then after taking judicial action, recused himself from each case. Moreover, the Charge alleged that in three cases, Judge Davis 17recused himself but subsequently accepted guilty pleas and sentenced the defendants. Finally, in one case in which Judge Navarre, who preceded Judge Davis in the district court seat, had appointed Mr. Davis, Judge Davis, upon inheriting the case, recused himself but thereafter accepted a guilty plea and sentenced the defendant.

With respect to the Commission’s closed file no. 98-1195, the Formal Charge alleged that Judge Davis, “through counsel, by letter dated November 2, 1998, responded to the specific allegations in the complaint by stating that you do not ‘hear any cases involving [your] father, directly or indirectly,’ ” and that “an additional lawyer was hired by the [IDB] ‘who handles cases before Judge Davis.’ ” The Formal Charge stated that these representations to the Commission “were either untrue, or misleading.” The Commission alleged that Judge Davis’s conduct violated La.Code Crim. Pro. art. 671(A)(2), as well as the Code of Judicial Conduct and the Louisiana Constitution.

As previously stated, Judge Davis and the OSC thereafter jointly filed a stipulation of facts in which Judge Davis admitted most of the factual allegations in the Formal Charge, but notwithstanding this admission, denied that his conduct violated the Code of Judicial Conduct or La. Const, art. V, § 25(C). With respect to the IgCommissions file numbered 98-1195, Judge Davis further denied that the statements he made in response to the Inspector General’s complaint were either untrue or misleading.

The Commission conducted a hearing on the Formal Charge on July 16, 2003. Judge Davis was the sole witness to testify at the hearing, but he also introduced character evidence in the form of affidavits submitted by judges, as well as the Allen Parish District Attorney.

The Commission made findings of fact based on Judge Davis’s testimony at the hearing and after considering the record of this matter, the Commission concluded the Formal Charge was proven by clear and convincing evidence, and that Judge Davis violated the law and the Code of Judicial Conduct.

Specifically, the Commission found that Judge Davis’s failure to recuse himself immediately after he appointed his father to represent indigent defendants in his court violated La.Code Crim. Pro. art. 671, as well as Canons 1, 2A, and 3C of the Code of Judicial Conduct. The Commission disagreed with Judge Davis’s assertion that the recusal issue was just a question of “timing.” The Commission found that the fact that Judge Davis was elected to a one-judge district where his father was an indigent defender created an inherent conflict of interest. Considering the mandatory law regarding a judge’s recusal in criminal cases when the judge is related in the first degree to a lawyer in the case, the Commission concluded that Judge Davis violated the law by failing to disqualify himself from presiding over any matter once his father was | flappointed. The Commission further concluded that the issue presented is black letter law about which there can be no confusion, and that under the test enunciated in In re: Quirk, 97-1143 (La.12/12/97), 705 So.2d 172, this pattern of judicial error constituted ethical misconduct.

The Commission also found that Judge Davis’s practice of appointing his father as indigent defender in cases before him, then presiding over various pretrial matters violated Canon 2B because “(a) according to his own admission in testimony, he let the District Attorney, with whom he had a political relationship, sway and influence his judicial actions; (b) ... he let the [IDB], with whom he had a political relationship, dictate whom the judge appointed to defend indigents in his court; and (c) he argued soon after the Lynch complaint was lodged that his father’s livelihood would be affected if he did not appoint the father to indigent defender cases, demonstrating that a family relationship influenced his judicial conduct.” The Commission viewed it as especially egregious for Judge Davis to accept guilty pleas, to hear motions, and to modify (or decide not to modify) bail with his father in place as a lawyer in these criminal cases. The Commission found that the codal violation was not excused by the fact that this occurred in relatively few cases.

Additionally, the Commission found that Judge Davis’s appointment of his father as counsel for indigent defendants violated Canon 3B(4) in two respects. “First, that appointment created an appearance of impropriety. Second, the Commission members considered it a basic tenet of judicial ethics that should be obvious to all members of the judiciary that a judge should not appoint his father as an attorney[ ] in a proceeding before the judge son.” The Commission found that making such an 11flappointment violates the prohibition on nepotism that is part of Canon 3 B(4). The Commission was not persuaded by Judge Davis’s argument that a conflict of interest on the part of the chief indigent defender can only be asserted by the indigent defendant attorney in question. On its face, La.Rev.Stat. 15:145 recognizes that indigent defenders may have conflicts of interest and provides a remedy for such situations. The Commission felt that this fact, together with La.Code Crim. Pro. art. 671(A)(2) and Canon 3 C of the Code of Judicial Conduct, should have caused Judge Davis to stop and examine the ethical propriety of his appointment and recu-sal practices. Judge Davis testified that he did not consider all of these things because it did not occur to him that he could do something other than observe the IDB’s attorney rotation. Even if this were true, the Commission found that Judge Davis remained responsible for knowing and complying with rules regarding recu-sal and acting in accordance with them.

In connection with Judge Davis’s case the Commission considered State v. Browning, 483 So.2d 1008 (La.1986). According to the Commission, the Browning case makes it clear that Judge Davis’s conduct in appointing his father as counsel for the defendants appearing before him for arraignment and limited preliminary matters created reversible judicial error. The Commission found no indication that Judge Davis had prior knowledge of the Browning case in this Court’s ^jurisprudence, but found that his ignorance of the case did not excuse Judge Davis for actions inconsistent with La. Code Crim. Pro. art. 671(A)(2) and Canon 3 C, which govern recusal. The Commission found that other errors by Judge Davis apparent in the record were his “unrecusing” himself after disqualifying himself in the first place, and his assertion that he was compelled to appoint his father to cases involving indigents under the rotation set by the IDB, because of the statutory rules governing those boards. The Commission found that neither of these latter errors, nor Judge Davis’s being unaware of the Browning case, constituted ethical misconduct, but nevertheless found a pattern of judicial error by Judge Davis which can constitute misconduct under the Commission’s interpretation of Quirk. See also In re: Fuselier, 02-1661 (La.1/28/03), 837 So.2d 1257.

The Commission’s “Conclusions of Fact and Law” stated that “[t]he record is clear that in 1996 when Judge Joel Davis queried the Supreme Court Judicial Administrator’s office, he received the answer to his question about what he should do as the result of his father being an Allen Parish indigent defender — that answer was that Judge Davis was obligated to recuse himself.” The Commission further concluded that “Judge Davis admitted at the hearing that he received ... the index that described [several] advisory opinions” and that they “made it clear that a judge must recuse, even in connection with preliminary matters, when a close relative is employed as an attorney in the cause.” Giving Judge Davis the benefit of the doubt that as a brand new judge who perhaps did not grasp the meaning of these opinions and their application to him, the Commission noted that it could not accept that two years later, when Judge Davis received the Commission’s letter of counseling and closure in |^January 1999 (closing the file opened about Judge Davis allegedly presiding over cases involving both his father and another lawyer), he did not understand that the Commission was communicating the members’ view that his question had been answered. The Commission stated its belief that a letter closing a file about a complaint of judicial ethical misconduct would have been important to Judge Davis and he would have read it carefully. If the Commission was incorrect in the assumption expressed in that letter, that Mr. Palmatier had addressed Judge Davis’s questions about re-cusal, Judge Davis should have spoken up at that time.

The Commission did not find Judge Davis’s assertion regarding his response to the IG’s letter compelling, simply by reference to the four corners of that letter. The Commission found that the only inference that could be drawn from Judge Davis’s response was that he no longer presided over any cases handled by his father as an indigent defender.

In recommending discipline, the Commission looked to the factors set forth by this Court in In re: Chaisson, 549 So.2d 259 (La.1989). In Chaisson, this Court, citing Matter of Deming, 108 Wash.2d 82, 736 P.2d 639, 659 (1987), set forth a nonexclusive list of factors a court may consider in imposing discipline on a judge:

(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct;
(b) the nature, extent and frequency of occurrence of the acts of misconduct;
(c) whether the misconduct occurred in or out of the courtroom;
(d) whether the misconduct occurred in the judge’s official capacity or in his private life;
(e) whether the judge has acknowledged or recognized that the acts | ^occurred;
(f) whether the judge has evidenced an effort to change or modify his conduct;
(g) the length of service on the bench;
(h) whether there have been prior complaints about this judge;
(i) the effect the misconduct has upon the integrity of and respect for the judiciary; and
(j) the extent to which the judge exploited his position to satisfy his personal desires.

Id. at 266.

The Commission applied all ten of the Chaisson factors to its findings with regard to the Formal Charge against Judge Davis and made relevant findings regarding each.

The Commission concluded that Judge Davis acted in bad faith, particularly when he told the Commission that the factual conflicts of interest with which he had 114previously grappled had been resolved. A majority of the members of the Commission found that the record overwhelmingly showed Judge Davis’s actions violated the Code of Judicial Conduct and the Louisiana Constitution of 1974, and that Judge Davis should be disciplined by this court.

Based on these considerations, the Commission recommended that Judge Davis be suspended from judicial office for 180 days, and ordered to reimburse and pay the Commission’s costs in investigating the matter.

DISCUSSION

This court is vested with exclusive original jurisdiction in judicial disciplinary proceedings by La. Const, art. V, § 25(C). Therefore, this court has the power to make determinations of fact based on the evidence in the record and is not bound by, nor required to give weight to, the findings and recommendations of the Judiciary Commission. In re Wimbish, 98-2882 (La.4/13/99), 733 So.2d 1183, 1186; In re Quirk, 97-1143 (La.12/12/97), 705 So.2d 172; In re Whitaker, 463 So.2d 1291, 1298 (La.1985).

The grounds for disciplinary action against a judge are set forth in La. Const, art. V, § 25(C), which provides in pertinent part:

On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony.

In addition to these substantive grounds for disciplinary action, this court has adopted the Code of Judicial Conduct, effective January 1, 1976, and amended July 8, 1996, which is binding upon all judges. Violations of the Canons contained therein may, without more, serve as a basis for the disciplinary action provided for by La. Const. |1fiart. V, § 25(C). In re Hunter, 02-1975 (La.8/19/02), 823 So.2d 325; In re Jefferson, 99-1313 (La.1/19/00), 753 So.2d 181. The charge or charges against a judge must be proved by clear and convincing evidence before this court can impose discipline. In re Hunter, 823 So.2d at 328; In re Bowers, 98-1735 (La.12/1/98), 721 So.2d 875, 880.

We now address the merits of the Formal Charge against Judge Davis as well as the Judiciary Commission’s recommendation of discipline. As recognized by the Judiciary Commission in its findings, Judge Davis’s chosen method of appointing his father and then later recusing himself constituted a pattern or practice of legal error of failing to follow and apply the law. The actions taken by Judge Davis are self-evident based upon the transcripts and records of the proceedings involved. Nevertheless, Judge Davis has not admitted that his conduct violated certain Canons alleged in the charge. Specifically, Judge Davis admits that he violated La.Code Crim. Pro. art. 671 and Canons 1, 2 A, and 3 C because of his handling of four guilty pleas and preliminary matters where his father represented a defendant. However, Judge Davis denies that he violated Canon 2 B or 3 B(4).

Canon 2 B provides, in pertinent part: “A judge shall not allow family, social, political, or other relationships to influence judicial conduct or judgment....” Canon 3 B(4) states in pertinent part:

A judge shall not make unnecessary appointments. A judge should exercise the power of appointment impartially and on the basis of merit. A judge should avoid appointments which tend to create the appearance of impropriety.... A judge shall avoid nepotism. No spouse or member of the immediate family of a judge shall be employed in the court to which that judge was elected....
The provisions of this Subsection shall not prohibit the continued employment of any employee of a court employed by such court on or before December 31, 1990; nor shall such provisions be construed to hinder, alter, or in any way affect promotional advancements for any such employee.

lifiWe agree with the Judiciary Commission’s findings that Judge Davis’s conduct violated Canons 2 B and 3 B(4). However, with regard to Canon 2 B, we do not find that Judge Davis allowed “political relationships” to influence his judgment. That a judge conferred with a district attorney on administrative or other matters of this sort is hardly chargeable as a “political relationship” that improperly influenced judicial conduct or judgment, even though such conferring may well have assisted the judge in making administrative decisions. Similarly, we do not find that Judge Davis’s implementation of the rotation for appointments provided by the IDB, a continuation of his predecessor’s procedure, constitutes a “political relationship” that influenced his judicial conduct or judgment. Nonetheless, and subject to the foregoing reservations, we do find that the record supports the Commission’s finding that Judge Davis allowed a family relationship to influence his judicial conduct or judgment in violation of Canon 2 B.

Furthermore, regarding Canon 3 B(4), Judge Davis’s belief that he could appoint his father to the indigent defendant at the 72-hour hearing and later recuse himself was, at the least erroneous. Judge Davis’s impartiality could reasonably be questioned through the system of appointments he chose to implement. Accordingly, we find his actions also violated Canon 3 B(4).

We will now consider the Commission’s recommendation of a 180-day suspension for the respondent judge. Our jurisprudence with regard to “failure to recuse” cases is limited and therefore lends minimal guidance on what discipline is fitting for this unique case. However, the case here does not involve a failure to recuse in a case where it is later determined that, for reasons personal to the judge, |17recusal was required. Rather, this case involves a judge who followed an earlier instituted policy of rotating appointed counsel to indigent defendants which resulted in his improperly appointing his father to represent indigent defendants appearing before him on, admittedly, numerous occasions. More significantly, Judge Davis submitted responses to the Commission, regarding a complaint against Mm, which were misleading. We find that the aggregate of these factors, but most especially the misleading responses to the Commission, requires a 90-day suspension.

Most critical to our decision is that Judge Davis, through his attorney, misled the Commission in the written response to the allegations in File No. 98-1195 when he said, through counsel: “Judge Davis does not hear any cases involving his father, directly or indirectly” and that an additional lawyer was hired by the Indigent Defender Board “who handles cases before Judge Davis.” The statements in the response letter to the Commission were misleading since they led the Commission to believe that there was “no conflict of interest or potential conflict of interest ... between a son who sits on the bench and his father who is ... the district’s indigent defender,” as was suggested |isin the complaint received by the Inspector General.

We do not find convincing Judge Davis’s contention that he thought his answer was responsive only to complaints about conflicts involving civil cases. The Inspector General’s complaint mentions a potential for conflict between the son on the bench and the father who is an indigent defense lawyer in its opening paragraph, which would reasonably have alerted the reader that the complaint did not involve only civil cases and that any response to such a complaint should address more than only civil matters. Furthermore, Judge Davis’s letter does address the IDB’s hiring an additional attorney in the response directly following Judge Davis’s assertion that he no longer hears any cases involving his father. The reader could not be expected to have read each response in a vacuum, but rather, as suggested by Judge Davis himself, as a whole in light of the entire complaint letter. When read together, Judge Davis’s responses more than likely should reasonably be understood to mean that any problem or potential conflict had been resolved by virtue of the fact that the IDB had hired another attorney and that Judge Davis no longer heard any cases in which his father was involved, including civil or criminal cases.

Furthermore, even if this response were made with the utmost candor, there could have been little or no doubt in Judge Davis’s mind when he received Nancy Rix’s letter in January, 1999, closing the complaint the Inspector General had h ¡forwarded to the Commission, that the Commission not only believed that Judge Davis’s questions regarding recusals had been answered, but that they were closing the file based in large part on the reassuring responses they had received from Judge Davis’s attorney.

Regardless of Judge Davis’s intent when he responded to the IG complaint, we find that the responses did mislead the Commission in that those responses reasonably caused the Commission to think that its concerns about Judge Davis appointing his father and other potential conflicts of interest were at an end. If there was any confusion on Judge Davis’s part about what that letter meant, instead of continuing to appoint his father and hearing certain preliminary matters in which his father was counsel for the defendant, he should have again sought guidance from the Commission. Judge Davis did not do so. Instead he continued to follow the same procedure he had before he received the initial complaint and after he responded to that complaint.

Therefore, while we do not find that Judge Davis’s responses to the Commission were knowing falsehoods, we do find that Judge Davis knew or should have known that his and his lawyer’s responses would mislead the Commission. Such misleading statements made to the Commission, along with Judge Davis’s admitted violation of Canons 1, 2 A, and 3 C, and our further finding that Judge Davis violated Canon 2 B by allowing a family relationship to influence his judicial conduct or judgment, and violated Canon 3 B(4) through the routine appointment of his father to represent indigent defendants before him, adequately support a 90-day suspension.

DECREE

Accordingly, for the reasons stated herein, it is ordered, adjudged, and decreed that the respondent, Judge Joel G. Davis of the 33rd Judicial District Court, Parish of | an Allen, State of Louisiana, be, and is hereby, suspended from office for a period of ninety (90) days to commence upon finality of this judgment. We further cast respondent with costs of $1,532.77 incurred in the investigation and prosecution of this case.

JOHNSON, J., dissents and assigns reasons.

| JOHNSON, Justice

dissenting.

A 90-day suspension trivializes Judge Davis’ conduct. This judge, with full knowledge of the conflict of interest, appointed his father to represent indigent defendants in his section of court, not once, but in 238 separate cases. Judge Davis admitted to a practice of handling arraignments, setting bonds, and accepting guilty and not guilty pleas from defendants who were represented by his father. He then lied to the Judiciary Commission in his response letter, suggesting that he did not “hear any cases involving his father, directly or indirectly.”

We should not characterize Judge Davis’ untruthful response as false or misleading, especially in light of our recent decision to remove a judge from judicial office for lying to the Commission. In In re Judge C. Hunter King, 03-1412 (La.10/21/03), 857 So.2d 432, the former Judge King admittedly lied in his response letter to the Commission, as well as in his testimony before the Commission. This Court, quoting Stanley v. Jones, 201 La. 549, 9 So.2d 678, 683 (La.1942), in which a district court judge was removed for lying, stated:

The office of judge is one in which the general public has a deep and vital interest, and, because that is true, the official conduct of judges, as well as their private conduct is closely observed. When a judge, either in his official capacity or as a private citizen, is guilty of such conduct as to cause others to question his character and morals, the people not only lose respect for him as a man but lose 12respect for the court over which he presides as well.

In Re Judge King, at 25. This Court went on to cite Inquiry Concerning Couwenberg, No. 158, Decision and Order (Aug. 15, 2001), a case from another jurisdiction in which a judge was removed, and stated, “Honesty is a ‘minimum qualification’ expected of every judge.” Consequently, in a unanimous decision, this Court concluded that Judge King’s removal from the bench was warranted.

The majority attempts to distinguish the facts of this case from those of In Re Judge King by pointing out that the former Judge King lied both in his response letter, through his attorney, to the Commission and in his testimony before the Commission when the denied the allegations of campaign misconduct. The majority notes that in this case, Judge Davis, through his attorney, only “misled” the Commission in the written response by denying that he hears cases involving his father. In my mind, the former Judge King’s lies were no more egregious that the lie told to the Commission by Judge Davis in his written response to the Commission “through his attorney.”

Protecting the constitutional rights of criminal defendants is far more important than our concern for ethical violations involving judicial campaigns. Therefore, in keeping with our action in the King case, I believe that Judge Davis’ removal from judicial office is warranted in this case.

JjPER CURIAM.

Rehearing is granted ex proprio motu for the sole purpose of clarifying the court’s decree of February 4, 2004. That decree was silent regarding whether the suspension was to be served with pay or without pay. The court’s resolution was in fact that the suspension be served without pay.

Therefore, the decree is amended to provide that Judge Joel G. Davis of the 33rd Judicial District Court, Parish of Allen, State of Louisiana be suspended from office for a period of ninety days without pay to commence upon finality of this judgment. In all other respects the decree remains unchanged.

The right is reserved to the parties to apply for a rehearing from this per curiam action pursuant to Louisiana Supreme Court Rule IX, § 1.

JOHNSON, J., concurs in the suspension without pay, but reurges the belief that a more severe penalty is warranted.

      . Judge Davis was elected in 1996 and assumed his office on January 1, 1997. He has served continuously since that time.

      . A second judgeship was created in the 33rd JDC in 2002.

      . The August 21, 1998 letter from the Inspector General stated:
      An anonymous caller who identified himself as an attorney has complained to this office that a conflict of interest or potential conflict of interest exists in the 33rd Judicial District, Allen Parish, between a son who sits on the bench and his father who is a practicing private attorney as well as the district's indigent defender and prosecutor for the city of Oakdale.
      After reviewing the complaint, it is our conclusion that this office does not have jurisdiction and we are, therefore, referring this matter to you for consideration.
      The complaint states that when the judge took his seat on the bench 18 months ago, his private cases were going to an attorney from Lafayette to handle. The Lafayette attorney, who has moved his practice to Allen Parish, also handles cases for the father if those cases are scheduled for the son’s court. It was claimed that the Lafayette attorney has enjoyed a remarkable success rate.
      The indigent defender complaint is that it costs the parish an additional $40,000.00 a year to employ a second indigent defender to handle cases that would come before the son....
      The judge was identified as Joel Davis and the father as T.J. Davis.
      I do not know if the claims have any merit and have no further information.

      . The Supreme Court Committee on Judicial Ethics ("Committee”) was created by this court in order that the Code of Judicial Conduct may be properly interpreted, and in order to provide a forum to receive inquiries from members of the judiciary related to the interpretation of the canons. The Committee is composed of the following members: the Chief Justice and one other member of the Supreme Court; the Chairperson of the Conference of Court of Appeal Judges and one other Court of Appeal Judge; the President of the District Judges Association and two other District Judges; the President of the City Judges Association; one juvenile or family court judge; the Judicial Administrator; and the President of the Louisiana State Bar Association. The function of the Committee is limited to the issuance of advisory opinions on its own motion or in response to the questions of an ethical nature which may be posed to this body by any judge affected by the canons. While these opinions, rendered for the benefit of the inquiring judge, provide generally accurate counsel, they are not binding authority on this court. In Re McInnis, 00-1026, p. 4 n. 4 (La.10/17/00), 769 So.2d 1186, 1189 n. 4.

      . By letters dated November 7, 1996, December 4, 1996, and December 19, 1996, then Judge-elect Davis submitted requests for guidance on dissolving his law practice and the anticipated impact his father's continuing practice would have on his judicial position.

      . As of the date of Mr. Palmatier's letter, there were four opinions from the Louisiana Supreme Court Committee on Judicial Ethics that were relevant to the issue of whether it was permissible for Judge Davis's father to appear before him as an attorney. See Opinion No. 100 (March 6, 1992) (it is not ethically permissible for a judge to preside over matters, whether complex or routine, e.g., arraignments, signing of search warrants and arrest warrants, uncontested plea bargains, etc., presented to him/her by the Louisiana Wildlife and Fisheries Department, when that judge's spouse is the Deputy Director of the Wildlife and Fisheries Department, and the disclosure to counsel, with subsequent recusal should objection arise, is not an ethically permissible alternative as it does not overcome the appearance of impropriety); Opinion No. 110 (April 8, 1993) (it is ethically impermissible for a judge to allow an attorney related to that judge to enroll as counsel in a matter pending before that judge when no action has been taken by that judge regarding the substantive merits of the matter, when such enrollment creates the need for the recusal of that judge); Opinion Nos. 55 (February 15, 1982) and 96 (December 13, 1991) (it is not ethically permissible for a judge to preside over cases where one of the parties is represented by his brother and first cousin respectively).

      . The term "72-hour hearing" is derived from La.Code Crim. Pro. art. 230.1 which provides in pertinent part:
      A. The sheriff or law enforcement officer having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel....
      B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a pri- or determination of the amount of bail....

      . Judge Davis did not obtain waivers of the conflict of interest from any of the defendants in these cases.

      . Judge Davis has suggested that his refusal to appoint his father to any cases would necessarily have resulted in the termination of his father's employment with the IDB.

      . The cost of these ad hoc appointments totaled approximately $19,595.88. Admittedly, had Judge Davis not appointed his father there still would have been a financial imposition on the criminal justice system of one sort or another. It either would have made it difficult for the IDB in that it would have had to hire another lawyer to handle the case load or further burden an already burdened IDB attorney to handle Mr. Davis’s cases, or the state would have borne the expense for an ad hoc appointee. So while the cost of the ad hoc appointments here was $19,595.88, in fact the appointment of Mr. Davis or Judge Davis's tardy recusals did not result in a net loss of that full amount to the state or the judicial system.

      . La.Code Crim. Pro. art. 671(A)(2) provides in pertinent part that a trial or appellate court judge shall be recused in a criminal ■ case when he "is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree....”

      . The Commission alleged Judge Davis's conduct violated Canons 1 (a judge shall uphold the integrity and independence of the judiciary), 2A (a judge shall respect and comply with the law and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary), 2B (a judge shall not allow family, social, political, or other relationships to influence judicial conduct or judgment, nor shall a judge lend the prestige of judicial office to advance the private interest of the judge or others), 3B(4) (a judge should avoid appointments which tend to create the appearance of impropriety and shall avoid nepotism), and 3C (a judge shall disqualify himself in a proceeding in which disqualification is required by law or Supreme Court rule) of the Code of Judicial Conduct. The Commission further alleged that Judge Davis engaged in willful misconduct relating to his official duty, engaged in willful and persistent failure to perform his duty, and engaged in persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, all in violation of La. Const, art. V, § 25(C).

      . This was agreed upon at the time the stipulation of fact was confected between the parties and was approved by the Commission.

      . The affidavits were submitted by Retired Judge John Navarre, Retired Judge Lewis Lauve, Judge Patricia Cole, United States District Judge Richard T. Haik, and District Attorney Douglas L. Hebert, Jr.

      . In its findings, the Commission also chided Judge Davis for appointing his father at the outset as is noted hereinafter.

      . In Quirk, this Court held that a judge may be found to have committed misconduct “by a legal ruling or action made contrary to clear and determined law about which there is no confusion or question as to its interpretation and where this legal error was egregious, made in bad faith, or made as part of a pattern or practice of legal error.” 705 So.2d at 180-181.

      . The defendant in Browning, who was facing a drug charge, appeared before Judge Paul Newell without an attorney, explaining that his retained attorney had died three weeks earlier. Judge Newell told Mr. Browning that for purposes of the arraignment alone he would appoint a member of the indigent defender board, and he thereupon appointed his son, David Newell, an IDB attorney. With the assistance of Judge Newell’s attorney-son, the defendant pleaded not guilty and requested a jury trial. That same day, the defendant and David Newell appeared before Judge Newell so that the defendant could change his plea to guilty, pursuant to a plea bargain. Judge Newell Boykinized the defendant and then accepted the guilty plea. Later, the defendant appealed his sentence, arguing, among other things, that he was denied effective assistance of counsel because his appointed attorney was the judge's son and therefore had a "built-in conflict of interest.” The court of appeal recognized the conflict but found no prejudice to the defendant. State v. Browning, 475 So.2d 90 (La.App. 2nd Cir.1985). This Court reversed, holding that Judge Newell’s appointment of his son as counsel for the defendant constituted plain error.

      . Judge Davis testified that he recalled his recusal because an ad hoc judge had not been appointed in the case and the defendant would have been required to stay in jail longer than would be necessary if he just accepted the plea.

      . Judge Davis claimed that he did not consider his response to the complaint submitted by the IG to refer to the conflict created by his father being indigent defender. However, the Commission noted that the IG’s correspondence specifically refers to Mr. T.J. Davis in the first paragraph and in the second and third to last paragraphs. Furthermore, the Commission did as Judge Davis suggested and compared the IG's letter "side by side” with the responses of Judge Davis’s attorney, and, even giving credence to Judge Davis’s statements at the hearing that the responses to the complaint referred only to civil cases, the Commission still could not be persuaded to credit Judge Davis’s interpretation.

      . The Commission set out their findings as such:
      (a) and (b) The misconduct described in the Formal Charge reflects a pattern of problems with failure to disqualify.
      (c) and (d) Judge Joel Davis’s actions as described in the Formal Charge occurred as part of his duties on the bench.
      (e) At the hearing, Judge Joel Davis did not take full responsibility for his violations of the Code of Judicial Conduct.

        (£) The circumstances that led to the ethical misconduct are not expected to reoccur,
      (g)Judge Joel Davis was a new judge when the initial failure to recuse occurred. In fact, when the issues of unethical failure to disqualify were first presented to the Judiciary Commission the members closed the file with a letter of counseling, based in part upon the occurrence of the problem so early in Judge Davis’s career and further recognizing the difficulties experienced by a judge in a one-judge district. Equally important, however, the Commission closed the early complaint privately based upon the members’ belief that the recusal problems were solved. This conclusion was drawn solely from Judge Davis’s communication to the Commission that he was not hearing cases brought by his father and that the IDB had hired another attorney. This turned out to be false, and it is Judge Davis’s conduct and failure to recuse during the time that commenced late in his second year on the bench that forms the basis for the Commission recommending to the justices that they impose judicial discipline in this case.
      (h) There have been prior complaints to the Commission concerning Judge Davis and his failure to recuse in cases involving his father, Mr. T.J. Davis, as described in the stipulated facts and in the conclusions drawn by the Commission.
      (i) Judge Joel Davis's violation of the Code of Judicial Conduct has undermined the judicial process and was and is prejudicial to the administration of justice because his actions created the appearance to the citizens of Allen Parish that politics and family relations can control judicial conduct in their district.
      (j) The allegations of the Formal Charge, which have been deemed proven by the requisite standard, reflect that Judge Joel Davis's ethical misconduct did not provide to him any monetary advantage, but those actions financially benefitted his father. Further, Judge Davis's handling of the recu-sal issue stood to garner him political advantages that could potentially benefit him in later races for judicial or other public office.

      . See, e.g., In re Lemoine, 96-2116 (La.1/14/97), 686 So.2d 837, on reh’g, 692 So.2d 358, (judge engaged in ethical misconduct by failing to recuse himself from criminal cases in which defense counsel were attorneys with whom he co-owned real estate and/or to whom he rented office space and thus was publicly censured).

      . In Mississippi Commission on Judicial Performance v. Peyton, 812 So.2d 204 (Miss.2002), pursuant to a stipulation of facts and an agreed recommended penalty, the Mississippi Supreme Court suspended the judge for thirty days for appointing his daughter, one of the public defenders in the county, as counsel for a murder suspect who came before the court for an initial appearance, but further proceedings were heard by another public defender. The judge had also engaged in other misconduct and had a prior disciplinary history.

      . In In re King, 03-1412 (La.10/21/03), 857 So.2d 432, a distinctly different land of judicial discipline case, and involving conduct much more egregious than in this case, this Court removed that judge from the bench. Former Judge King was accused, in two separate charges, with campaign misconduct and lying about that campaign misconduct to the Commission. Id. The complaint alleged, among other things, that Judge King terminated his court reporter because she refused to sell tickets to a campaign fund-raising event on his behalf. Id at 434. In Judge King's response to the Commission, through his attorney, he specifically denied all of the allegations. Id. Thereafter, in sworn testimony generated during the Commission’s investigation, Judge King persistently responded in the negative to questions whether he engaged in misconduct. Id. at 441. Former Judge King admitted, at a later hearing, that his previous statements under oath had been false, after he was confronted with audio tapes which contradicted most of his earlier responses. Id. Therefore, former Judge King not only lied in his response letter to the Commission, but he also later lied under oath before the Commission.

      . Judge Davis denied that he tried to mislead the Commission when his lawyer responded to the Inspector General’s complaint on his behalf. Judge Davis took the position that presiding over certain preliminary matters after his father was appointed as the indigent defender did not constitute "hearing cases.” Further, Judge Davis testified that because he felt that the IG complaint concerned only civil cases, and he did not preside over any civil cases involving his father, that his lawyer was accurately responding to the Commission to that effect in his letter. Judge Davis further maintained that his lawyers' response letter about the 1998 complaint had to be read side by side with the complaint itself, implying that doing so would make it clear that the statements in question referred only to the part of the complaint about the Lafayette lawyer and not to Mr. T.J. Davis. Furthermore, Judge Davis denied that his lawyer's letter to the Commission which stated that the IDB hired another attorney to hear cases before Judge Davis was misleading, stating, "They hired another attorney. I don't know why they hired the attorney. I know he was hired prior to my taking office.”

      . In Couwenberg, the judge made false statements in personal data questionnaires he filled out when seeking judicial office and also lied in a sworn statement taken during the judiciary commission's investigation.


text:
    In re Sidney M. RIHNER.
    No. 2003-B-2585.
    Supreme Court of Louisiana.
    Feb. 6, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel seeks this court’s review of a recommendation of the disciplinary board that the formal charges against respondent, Sidney M. Rihner, be dismissed. Having reviewed the record and the briefs of the parties, we accept the recommendation of the disciplinary board. Accordingly, it is ordered that the formal charges against respondent be and hereby are dismissed.


text:
    In re Samuel Clark TAGGARD.
    No. 2004-OB-0073.
    Supreme Court of Louisiana.
    Feb. 11, 2004.
   ORDER

Considering the Petition for Reinstatement to Active Status from Disability Inactive Status filed jointly by respondent, Samuel Clark Taggard, and the Office of Disciplinary Counsel,

IT IS HEREBY ORDERED that Samuel Clark Taggard, Louisiana Bar Roll number 21081, be reinstated to the practice of law, subject to a probationary period of five years. During the probationary period, respondent shall fully and completely adhere to all terms of the recovery agreement executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Lawyers Assistance Program. 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 returning respondent to disability inactive status.

JOHNSON, J., dissents.

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisisana


text:
    In re George A. FLOURNOY.
    No. 2004-B-0015.
    Supreme Court of Louisiana.
    Feb. 13, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IT IS ORDERED that the Petition for Consent Discipline be accepted and that George A. Flournoy, Louisiana Bar Roll number 5620, be publicly reprimanded.

IT IS FURTHER ORDERED that 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.