author: SAWAYA, C.J.

text:
    STATE of Florida, Appellant, v. Marcus T. BRANNUM, Appellee.
    No. 5D03-1251.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.
    Marcus Theodore Brannum, Orlando, pro se.
   SAWAYA, C.J.

The State appeals a downward departure sentence imposed on Marcus T. Bran-num after he entered an open plea to the crimes of aggravated fleeing and eluding a police officer and felony driving while license revoked. The State argues that the reasons cited by the trial court for the downward departure are not supported by competent substantial evidence. We agree.

At the time he committed these offenses, Brannum was on probation for prior offenses and, based on his criminal history, his scoresheet called for a term of incarceration. Although the trial court sentenced Brannum to prison, it suspended the prison sentence on the condition that Brannum successfully complete ten years of probation on one count and a concurrent five-year term of probation on the other count. The State objected to the downward departure sentence. The trial court stated that it did not consider the sentence a departure sentence but nevertheless indicated that the sentence was justified because the offenses were committed in an unsophisticated manner and Brannum entered a voluntary and uncoerced plea to the charges.

We disagree with the trial court’s assertion that the sentence imposed on Brannum was not a downward departure sentence. When the incareerative portion of a defendant’s sentence is suspended and the defendant is placed on probation, this court and others have consistently held that the sentence constitutes a downward departure sentence. Hence, we must determine whether the downward departure sentence imposed on Brannum is appropriate.

In State v. Clay, 780 So.2d 269 (Fla. 5th DCA 2001), this court discussed the process that must be complied with in order to properly impose a departure sentence:

The decision to depart from the guidelines is a two-part process. Banks v. State, 732 So.2d 1065 (Fla.1999);, State v. Schillaci 767 So.2d 598 (Fla. 4th DCA 2000). First, the trial court must decide whether it can depart by determining whether “there is a valid legal ground and adequate factual support for that ground in the case pending before it:” Banks, 732 So.2d at 1067. This decision will be affirmed on appeal if the reason provided by the trial judge is valid and supported by competent substantial evidence. Banks; Sehillaci. The second step requires the trial court to determine “whether departure is indeed the best sentencing option for the defendant....” Banks, 732 So.2d at 1068. The trial court is afforded considerable discretion in making this decision and it will be reversed only if the appellate court finds the trial court abused its discretion. Banks; Schillaci.

Id. at 270-71. We proceed to first determine whether the trial court provided valid legal grounds for the departure sentence that are supported by competent, substantial evidence.

One of the grounds relied on by the trial court to justify the departure sentence was that Brannum committed the offenses in an unsophisticated manner. Section 921.0026(2)(j), Florida Statutes (2002), provides that one of the non-exclusive mitigating circumstances a court may use as the basis for a departure sentence is that the “offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” (Emphasis added). This may be an appropriate ground for a departure sentence, but all three elements must be found to exist by the trial court. State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003); State v. White, 755 So.2d 830 (Fla. 5th DCA 2000).

Here, the trial court failed to find that the offenses for which Brannum was convicted were isolated incidents and that Brannum was remorseful for his wrongful conduct. We also note that Brannum has a rather lengthy criminal record that includes convictions for battery on a law enforcement officer, three armed robberies with a firearm, grand thefts, and a number of misdemeanor convictions for battery. Moreover, the offense of felony driving while license is revoked could only be charged and proven if Brannum had previously been found guilty of driving with a revoked license. This fact certainly dispels the notion that Brannum’s conviction for this particular offense was an isolated incident. We conclude that this ground for departure was not established by competent substantial evidence.

The other ground the trial court relied on to justify the departure sentence was that Brannum entered a voluntary and uncoereed plea. The record reveals, however, that Brannum entered an open plea to the court and that the State was not a party to any plea agreement with him. This court has held that this is not a valid reason for a departure sentence where there was no plea agreement entered into between the defendant and the State. State v. Bell, 854 So.2d 686 (Fla. 5th DCA 2003), review denied, 866 So.2d 1212 (Fla.2004); see also State v. Sawyer, 753 So.2d 737, 738 (Fla. 2d DCA 2000) (“[Although an uncoerced plea bargain is a valid reason to depart from the guidelines, the downward departure in this case cannot be upheld on this basis because the State did not join in the plea agreement.”) (citing State v. Laperreri, 710 So.2d 119 (Fla. 2d DCA 1998); State v. Bowland, 604 So.2d 556 (Fla. 2d DCA 1992)). Because the departure sentence must be reversed and this case remanded for resentencing, Brannum should not be allowed the option of withdrawing his plea. See State v. Norris, 724 So.2d 630, 632 (Fla. 5th DCA 1998)(“[I]n this case the plea was an open plea to the court with no agreement for a sentence.... In these circumstances, there is no reason to allow Norris to withdraw his plea. On remand, Norris should simply be given a guidelines sentence.”)

Accordingly, we reverse the sentences imposed on Brannum and remand this case to the trial court for imposition of a guidelines sentence.

REVERSED and REMANDED.

GRIFFIN and MONACO, JJ., concur.

      . See State v. VanBebber, 848 So.2d 1046 (Fla.2003) (observing that a downward departure sentence was imposed when the guidelines called for a prison sentence of 175.9 to 240 months and the defendant was sentenced to 200 months’ incarceration suspended upon completion of fifteen years of probation); State v. Tyrrell, 807 So.2d 122, 125 n. 6 (Fla. 5th DCA 2002) ("Because the prison sentences were suspended, the sentences fall below the lowest permissible sentence and are treated as downward departure sentences.”) (citation omitted); State v. Gilson, 800 So.2d 727 (Fla. 5th DCA 2001) (holding that when the scoresheet permissible range was 50.7 months to 49 years' incarceration and the defendant was sentenced to 50.7 months in prison suspended on condition of successful completion of two years on community control followed by three years on probation, the sentence was a downward departure sentence requiring sufficient reasons for the departure); State v. Clay, 780 So.2d 269 (Fla. 5th DCA 2001); Richie v. State, 777 So.2d 977 (Fla. 2d DCA 1999) (acknowledging that sentence within guideline range but with a portion suspended constituted a downward departure); State v. White, 755 So.2d 830 (Fla. 5th DCA 2000) (noting that a departure sentence had been imposed where the recommended guidelines sentence was 30 to 50 months’ incarceration and the trial court imposed a sentence of 35 months' incarceration suspended with credit for 517 days of time served followed by five years of drug offender probation); State v. Bray, 738 So.2d 962, 963 (Fla. 2d DCA 1999) ("Suspending the incar-cerative portion of a sentence, as the court did in the present case, is appropriate if a valid reason for a downward departure exists.”) (citation omitted); State v. Norris, 724 So.2d 630 (Fla. 5th DCA 1998) (noting that when the sentencing guidelines required a sentence of 64 to 100 months in prison and the defendant was sentenced to 70 months in prison, suspended upon completion of probation and attendance at a six-month residential drug program, the trial judge was required to state sufficient reasons for the downward departure sentence); State v. Whiting, 711 So.2d 1212 (Fla. 2d DCA 1998) (holding that a downward departure sentence was imposed when the guidelines sentencing range was nine to fifteen years in prison and defendant was sentenced to ten years’ incarceration suspended upon completion of probation); State v. Ucea, 707 So.2d 1155 (Fla. 2d DCA 1998) (holding that a downward departure sentence was imposed requiring sufficient reason for the departure when the sentencing guidelines’ range was from 36.75 to 61.25 months in state prison and the defendant received a sentence of three years' state prison, which was suspended, and one year in jail followed by two years’ community control); State v. Solomon, 667 So.2d 937 (Fla. 2d DCA 1996) (noting that defendant received a downward departure sentence when the sentencing guidelines scoresheet reflected a range between 61.35 months and 102.5 months and the trial court sentenced him to eight years in prison, suspended, and two years’ community control to be followed by three years’ probation); Salemi v. State, 636 So.2d 824, 825 (Fla. 2d DCA 1994) (holding that the "suspended sentence was technically a one-cell upward departure from the guidelines, although suspension had the effect of providing a significant downward departure.”) (citation omitted).

      . Brannum contends that remand for resentencing within the guidelines would violate the proscription against double jeopardy. We reject this argument. See Cheshire v. State, 568 So.2d 908 (Fla.1990) (holding that double jeopardy did not preclude the trial court from imposing a guidelines sentence on remand where the trial court erroneously imposed a downward departure sentence at the original sentencing hearing); see also Harris v. State, 645 So.2d 386, 388 (Fla.1994) C‘[W]e find that the Double Jeopardy Clause is not an absolute bar to the imposition of an increased sentence on remand from an authorized appellate review of an issue of law concerning the original sentence. Harris has not been deprived of any reasonable expectation of finality in his original sentence, nor has he been subject to repeated attempts to convict.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas A. FRAGALE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-572.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Arthur Joel Berger, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to raise pursuant to Florida Rule of Criminal Procedure 3.850.

STONE, POLEN and SHAHOOD, JJ., concur.


text:
    STATE of Florida, Appellant, v. James Patrick PECK, Appellee.
    No. 4D03-3062.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellant.
    Marrett W. Hanna, Boynton Beach, for appellee.
   PER CURIAM.

Affirmed. See Bryant v. State, 744 So.2d 1225 (Fla. 4th DCA 1999).

STONE, POLEN and SHAHOOD, JJ., concur.


text:
    Oreste LaFONTANT, Berniel LaFontant, Oreste LaFontant, Jr., and Arias Velencia LaFontant, Appellants, v. BRAC RENT-A-CAR SYSTEMS, INC. f/k/a Budget Rent-A-Car Systems, Inc., and Budget Rent a Car System, Inc., f/k/a Cherokee Acquistion Corporation, Appellees.
    No. 4D03-4531.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Joel S. Perwin of Podhurst Orseck, P.A., MI, for appellants.
    Gail Leverett Parenti of Parenti, Falk, Waas, Hernandez & Cortina, P.A., Coral Gables, for appellees.
   PER CURIAM.

Affirmed. See Determann v. Anser, Inc., 859 So.2d 548 (Fla. 4th DCA 2003); Sontay v. Avis Rent-A-Car Sys., Inc., 872 So.2d 316 (Fla. 4th DCA 2004), and McNeil v. Hertz Corp., 874 So.2d 660 (Fla. 4th DCA 2004).

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


text:
    Donald WALKER, Petitioner, v. Monica A. DAVID, Frederick B. Dunphy and Tena Pate, Florida Parole Commissioners, Respondents.
    No. 4D04-1535.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Donald Walker, Belle Glade, pro se.
    Bradley R. Bischoff, Assistant General Counsel, Tallahassee, for respondents.
   PER CURIAM.

Donald Walker seeks certiorari review of a Palm Beach County Circuit Court order denying his petition for writ of mandamus, in which he challenged decisions of the Florida Parole Commission that suspended his presumptive parole release date. The circuit court denied mandamus relief, not on the merits of Walker’s challenges, but rather because Walker did not take a direct appeal of the Florida Parole Commission decisions. In so ruling, the circuit court has failed to apply the correct law. Jurisdiction of the district courts of appeal to entertain direct appeals by parolees and prisoners from final orders of the Florida Parole Commission was eliminated in 1983, and the proper remedy is by petition for an extraordinary writ filed in the circuit court. See Ch. 83-78, § 1, at 258, Laws of Fla.; see also Johnson v. Fla. Parole Comm’n, 841 So.2d 615, 617 (Fla. 1st DCA 2003). We note that while there is no thirty-day time limit for challenging orders by the Parole Commission in extraordinary writ petitions, the question of timeliness may be raised by the affirmative defense of laches. See Johnson, 841 So.2d at 617.

We grant the petition for writ of certio-rari, quash the order of the circuit court, and remand for further proceedings.

PETITION GRANTED.

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    Johnny HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1693.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Johnny Harris, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and WELLS, JJ.
   PER CURIAM.

Affirmed without prejudice to the defendant’s right to file an appropriate motion pursuant to Florida Rule of Criminal Procedure 8.850.


text:
    Carmen J. PUJOL, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D03-2048.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Carmen J. Pujol, in proper person.
    John D. Maher (Tallahassee), for Appel-lee, Unemployment Appeals Commission.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980)(holding that the Commissions order is entitled to a presumption of correctness on appeal); Nisbet v. Publix Super Markets, Inc., 769 So.2d 1120, 1121 (Fla. 2d DCA 2000)(holding that a finding of disqualification of unemployment benefits will not be disturbed if it is supported by competent, substantial record evidence).


text:
    Paul KENDRICK, Appellant, v. Janie E. KENDRICK, Appellee.
    Nos. 1D03-4219, 1D03-4782.
    District Court of Appeal of Florida, First District.
    July 9, 2004.
    E. Jane Brehany, Pensacola, for Appellant.
    Sherry Fowler Chancellor, Pensacola, for Appellee.
   PER CURIAM.

Paul Kendrick appeals a final judgment of dissolution of marriage and an order on attorneys’ fees, which order included an adjudication of direct criminal contempt. These appeals have been consolidated. Mr. Kendrick raises several challenges to the final judgment on dissolution of marriage. We find no merit to any of these claims. Therefore, the final judgment of dissolution of marriage is affirmed.

Mr. Kendrick also raises challenges to the order on attorneys’ fees, one of which is meritorious. Mr. Kendrick asserts that the trial court erred by adjudicating him guilty of direct criminal contempt without first affording him an opportunity to present excusing or mitigating evidence as is required by Florida Rule of Criminal Procedure 3.830. With this one point, we agree. Accordingly, the appellant’s conviction for direct criminal contempt is reversed without prejudice to the institution of proper contempt proceedings. See Fla. R.Crim. P. 3.830. See also, e.g., Garrett v. State, 876 So.2d 24 (Fla. 1st DCA 2004). In all other respects, we affirm.

AFFIRMED IN PART; REVERSED IN PART.

BOOTH, WEBSTER and DAVIS, JJ., concur.


text:
    CONSULTECH OF JACKSONVILLE, INC., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D03-2764.
    District Court of Appeal of Florida, First District.
    July 14, 2004.

      Albert E. Ford, II, of Webb, Wells & Williams, P.A., Altamonte Springs, for appellant.
    Gary L. Asbell, Assistant General Counsel, Department of Health; and Timothy G. Schoenwalder, of Hopping, Green & Sams, P.A., Tallahassee, for appellee.
   PER CURIAM.

Appellant, Consultech of Jacksonville, Inc. (Consultech) appeals a final order of the appellee, State Department of Health (DOH) which adopted the findings of fact, conclusions of law, and recommendations of the Administrative Law Judge (ALJ), rejecting Consultech’s bid protest proceeding and approving the award of a contract to appellee, Information Systems of Florida, Inc. (ISF), intervenors below. DOH also approved the ALJ’s award of attorney’s fees to ISF as a sanction for failure of Consultech’s corporate representatives to appear for depositions scheduled by ISF.

We affirm the final order in all respects. In addition, we grant ISF’s motion for appellate attorney’s fees and costs against Consultech, finding ISF entitled to fees and costs under section 120.595(5), Florida Statutes, and remand to the ALJ for determination of a reasonable amount.

THE PROCEEDINGS BELOW

In October 2002 DOH issued its request for proposal (RFP) to secure proposals for the design, implementation, and maintenance of a new system for tracking continuing education units (CEU’s), which are required to be earned by more than 470,-000 healthcare professionals regulated by DOH. Only two companies, Consultech and ISF, submitted proposals. Pursuant to the specifications set forth in the RFP, both proposals were evaluated by a panel of DOH employees. Under the evaluation criteria contained in the RFP, Consultech’s proposal received a combined total of 298 points out of a possible 650 points, as compared to ISF’s score of 573.5 points.

Based upon the scoring of the review panel, DOH issued its notice of intent to award the contract for the CEU tracking system to ISF. Consultech timely submitted to DOH a formal protest to the bid award, followed later by an amended protest and petition to DOH. In its petition, Consultech mainly focused upon DOH’s scoring of selected portions of the competing proposals of ISF and Consultech and also argued that DOH’s notice of intent to award the contract to ISF contravened section 456.003(5), Florida Statutes, because neither the ALJ nor DOH properly weighed the element of cost. ISF was allowed to intervene in the proceedings.

Upon referral to the Department of Administrative Hearings, the bid protest was assigned to an ALJ for final hearing. At the conclusion of the hearing the ALJ issued a recommended order, finding that DOH’s notice of intent to award the contract to ISF was not clearly erroneous, contrary to competition, arbitrary, or capricious, and recommending that Consul-tech’s bid protest be rejected. The ALJ also ordered Consultech to pay attorney’s fees to ISF in the amount of $1,250 for the services of ISF’s attorney incurred in connection with Consultech’s failure to attend a scheduled deposition.

DOH adopted the ALJ’s findings of fact, conclusions of law, and recommendations, and issued a final order rejecting Consul-tech’s bid protest and expressly declining to overrule the ALJ’s award of attorney’s fees to ISF.

ISSUES ON APPEAL

The grounds for reversal argued by appellant may be summarized as follows:

(1) whether DOH’s failure to give greater deference to the “Financial Specifications” portion of the RFP violates section 456.003(5), Florida statutes;

(2) whether Consultech is entitled to the award due to the superior quality of its staff as well as its lower cost estimate for the development, maintenance, and operation of the CEU system;

(3) whether the ALJ’s award of attorney’s fees to ISF for Consultech’s failure to attend depositions was an abuse of discretion.

We find no merit in any of these contentions.

DISCUSSION OF ISSUES.

We first consider appellant’s contentions with regard to section 456.003(5), Florida Statutes. At the outset, we find that appellant’s arguments are based simply upon its disagreement with DOH’s interpretation of the statute. According to appellant, the term “expenditures” as used in the statute encompasses costs and fees paid by healthcare providers utilizing the CEU system to be developed by the successful bidder pursuant to the RFP. DOH, on the other hand, has interpreted the term “expenditures” to mean funds that will be paid out by DOH or one of its boards within its jurisdiction and control. This interpretation is clearly stated in the ALJ’s recommended order (adopted in full by DOH’s final order) as follows:

Finally, section 456.003(5), Florida Statutes, on its face, is inapplicable to an evaluation of ISF’s proposal or DOH’s proposed award of the contract to ISF, because ISF’s proposal does not involve any DOH ‘expenditures’ for ‘licensure costs.’

The import of this conclusion of law is amplified by the ALJ’s further finding that

because no agency funds are involved in an award to ISF, Consultech has failed to affirmatively demonstrate that DOH’s intent to award to ISF in any way offended section 456.003(5), Florida Statutes, which requires DOH to promulgate policies which are cost-effective.

We find this issue is governed by established case law and must be resolved against appellant. See Fla. Dep’t of Ins. & Treasurer v. Bankers Ins. Co., 694 So.2d 70 (Fla. 1st DCA 1997) (finding that an agency’s interpretation of a statute it administers is entitled to deference); Dep’t of Natural Res. v. Wingfield Dev. Co., 581 So.2d 193 (Fla. 1st DCA 1991) (finding that only upon a determination that an agency’s interpretation is clearly erroneous will such an interpretation be overturned on appeal). We reject appellant’s contention that DOH’s interpretation of section 456.003(5) is clearly erroneous.

A further bar to appellant’s attempt to inject the cost issue into this proceeding is its failure to timely protest the provisions of the RFP with respect to the financial aspects of the project. Because Consultech failed to file a protest to the terms and conditions of the RFP as required by section 120.57(3), Florida Statutes, its belated attempt to challenge the award to ISF on this basis must fail.

Significantly, in her Recommended Order the ALJ found, among other things, that Consultech’s arguments with respect to price “are predicated, at best, upon conjecture and speculation ....”; that Consultech did not prove that its price proposal “would be accurate in practice, or that ISF’s price proposal was inaccurate ....”; and that even assuming that Con-sultech’s price proposal “was demonstrably less expensive” for all licensed health care professionals, making price/cost “the sole criterion” would convert the RFP into a “de facto invitation to bid, wherein price would become the determining factor....” Appellant does not — nor could it reasonably — contend that DOH’s request was an invitation to bid, rather than a request for proposal. As appellant is aware, having cited this court’s decision in System Development Corp. v. Dep’t of Health & Rehabilitative Servs., 423 So.2d 433 (Fla. 1st DCA 1982),

Consideration of a response to an IFB [invitation for bid] is controlled by cost, that is, the lowest and best bid, whereas consideration of an offer to an RFP is controlled by technical excellence as well as cost.

Id. at 434 (footnote omitted).

We next consider the arguments concerning Consultech’s qualifications to complete the project. On this point, Con-sultech urges that it should receive the contract award because its qualifications were “equal if not superior” to that of ISF and that its “impressive computer qualifications” were not given proper recognition in the ALJ’s order. Consultech urges that this evidence must be “properly weighted and examined by this court” because it is “conclusive evidence” that Consultech was a qualified responsive bidder for the project “and it would have performed the project for substantially less than ISF.” As discussed above, Con-sultech’s contentions with regard to a favorable cost comparison between the two proposals are without factual or legal support. We find that appellant’s contentions as to its qualifications may be fairly characterized as an attempt to divert attention from the deficiencies in its proposal. The RFP defined eligible proposers as “any company with [a] CEU tracking systems development background or other organization with demonstrated expertise in system development projects and experience with providing similar services.” The RFP required each proposer to demonstrate in its proposal that it had “successful experience” providing services similar to those described in the RFP.

Consultech’s proposal patently failed to demonstrate “successful experience” in providing a CEU system, and in fact demonstrated no experience. The ALJ made this abundantly clear in her recommended order, as follows:

In its proposal to DOH, Consultech did not describe or identify a single project in which it had developed, implemented, and integrated a CEU tracking system program or a single large-scale software development, implementation, and integration project it had successfully completed. Therefore, it would seem that only ISF submitted a proposal that affirmatively demonstrated to the evaluators both that it was an eligible proposer and that it possessed ‘successful experience’ providing services similar■ to those sought by DOH.

These findings are supported by competent, substantial evidence in the' record, and are binding on this court. See, S.W. Fla. Water Mgmt. Dist. v. Save the Manatee Club, 773 So.2d 594 (Fla. 1st DCA 2000) (quoting section 120.68(7)(b), Florida Statutes). By contrast, the ■ ALJ found that ISF had identified in its proposal “several projects- for similar large-scale web-based services that it had developed, implemented, and integrated.” The order then described in some detail three of the proposals included in ISF’s list of “similar projects.” Consultech does not challenge these findings in this appeal. Nor does Consultech take issue with the ALJ’s observation that one of Consultech’s key witnesses at the hearing, Mr., Futrell (listed by Consultech in its proposal as one of its references), who had past experience with both ISF and Consultech, was “ ‘uncomfortable’ expressing an opinion that Con-sultech could deliver the services that DOH sought through its RFP.” The ALJ found, “Mr. Futrell testified clearly that he believed that ISF has a strong capacity for developing software and the ability to partner with an organization, while understanding that organization’s functions.”

Consultech’s argument is an invitation for this court to violate the provisions of section 120.68(7), Florida Statutes, by reweighing disputed issues of fact. This we decline to do.

THE ALJ’S AWARD OF ATTORNEY’S FEES

The AL J’s assessment of attorney’s fees against Consultech arose from the failure of Consultech’s representatives to appear for- a scheduled deposition in Jacksonville, Florida, where both ISF and Con-sultech maintained offices. ISF’s attorney traveled to Jacksonville from its office in Tallahassee for the deposition, but no corporate representatives of Consultech appeared at the properly noticed time and place. On appeal, Consultech argues that it was unable to attend the deposition due to a “mutual miscommunication” regarding the time and place of the deposition. The ALJ concluded, and we agree, that Consul-tech has not provided a satisfactory explanation or justification for its non-appearance at the deposition.

In addition, we find that appellant’s reliance on Fla. Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), as the basis for its contention that the amount of fees awarded was miscalculated, is misplaced. The attorney’s fees award by the ALJ was imposed as a sanction under rule 1.380(d), Florida Rules of Civil Procedure, rather than upon the statutory provision for an award of “reasonable attorney’s fees” to a prevailing party as in Rowe. Here the amount of attorney’s fees was calculated at the rate of $250 an hour based upon the intervenor’s affidavit as to costs and fees; as for reasonableness of the time factor, the ALJ observed that “any ordinarily prudent person knows that just ground travel time between Tallahassee to Jacksonville and back amounts to between five and six hours.” We find no abuse of discretion in the attorney’s fees award.

Finally, ISF has petitioned for an award of appellate attorney’s fees and costs pursuant to section 120.595(5), Florida Statutes. This statute provides for attorney’s fees to be awarded if an appeal is “frivolous, meritless, or an abuse of the appellate process....” An appeal is frivolous if it presents “no justiciable question and is so devoid of merit on the face of the record that there is little prospect it will ever succeed.” Procacci Commercial Realty, Inc. v. Dep’t of Health & Rehabilitative Servs., 690 So.2d 603, 609 (Fla. 1st DCA 1997) (quoting Treat v. State, ex. Rel. Mitton, 121 Fla. 509, 510-511, 163 So. 883, 883-884 (1935)). In Procacci, this court awarded appellate attorney’s fees against an unsuccessful bidder who appealed the denial of its bid protest against HRS. In that case, based upon our finding that the appeal “wholly lacked merit,” we held that HRS and the successful bidder were entitled to an award of attorney’s fees and costs under chapter 120. Id. at 609. In Procacci, as here, the unsuccessful bidder contended that the decision of the agency was arbitrary and capricious and that the proposal of the successful bidder was inferior to its own proposal. Here, as in Procacci, “the appellant’s principal strategy has been to reargue the facts previously presented to the lower [tribunal].” Id. at 609 (quoting Branch v. Charlotte County, 627 So.2d 577, 579 (Fla. 2d DCA 1993)).

Similarly, in Lifecare Ctrs. of America, Inc. v. Health Care & Retirement Corp. of America, 692 So.2d 243 (Fla. 1st DCA 1997), this court awarded appellate attorney’s fees and costs to the prevailing party where the losing party’s primary claim was that the agency ignored evidence that its nursing home program had been proven effective. Here, appellant’s primary argument on appeal, as before the ALJ, was that its personnel’s qualifications and experience were superi- or to that of the successful party, and that its proposal was superior to that of the successful party. Nevertheless, as our analysis of this case indicates and the record demonstrates, Consultech’s proposal did not establish that it possessed the necessary experience and qualifications sought in the RFP, nor did it demonstrate that its experience and qualifications were superior to that demonstrated by ISF in its proposal.

We conclude that appellant’s appeal is an abuse of the appellate process and warrants an award of appellate attorney’s fees and costs to ISF. Accordingly, this cause is remanded to the ALJ with directions to determine the amount of reasonable attorney’s fees and costs incurred by ISF in these proceedings, and to enter an order for payment of the same to ISF by Consul-tech.

The order on appeal is affirmed, and the cause is remanded to the ALJ for determination of a reasonable amount of appellate fees and costs to be awarded.

ERVIN and BOOTH, JJ., SMITH, LARRY G., Senior Judge, concur.

      . Consultech did not allege that ISF’s proposal was not in compliance with the terms and conditions of the RFP, nor that ISF was not a qualified proposer.

      . The amount of $1,250 was based on five hours at $250 per hour.

      . Under "Section 4: FINANCIAL SPECIFICATIONS” of the RFP, a proposer was required to set forth its plan for funding the CEU tracking system through fees collected from continuing education providers, a business plan demonstrating the ability to develop and operate the system from private resources, and the financial capability to complete the state project. These specifications emphasized, in effect, the need for a "self-supporting” system with minimal or no resort to state funds or services.

      .Section 456.003(5), Florida Statutes, provides as follows:
      Policies adopted by the department shall ensure that all expenditures are made in the most cost-effective manner to maximize competition, minimize licensure costs, and maximize public access to meetings conducted for the purpose of professional regulation. The long-range planning function of the department shall be implemented to facilitate effective operations and to eliminate inefficiencies.

      . Specification challenges under section 120.57(3) are intended to allow an agency to correct or clarify plans and specifications pri- or to accepting bids in order to save expense to the bidders and to assure fair competition among them. See Optiplan, Inc. v. Sch. Bd. of Broward County, 710 So.2d 569 (Fla. 4th DCA 1998); Capeletti Bros., Inc. v. Dep’t of Transp., 499 So.2d 855 (Fla. 1st DCA 1986).

        . Section 120.68(7)(b), Florida Statutes, provides in pertinent part that the appellate court can remand or set aside agency action when the court finds that
      [t]he agency’s action depends on any finding of fact that is not supported by competent substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact....


text:
    SEMINOLE COUNTY and Gallagher Bassett Services, Inc., Appellants, v. Donald OSBORNE, Appellee.
    No. 1D03-2569.
    District Court of Appeal of Florida, First District.
    July 14, 2004.
    Michael Broussard, Sarah P. Reiner and Barbara A. Eagan of Broussard, Cullen, DeGailler & Eagan, P.A., Orlando, for Appellants.
    Stewart L. Colling, Orlando; Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation case, we reverse the award of an EEG, biofeedback, a repeat EMG/nerve conduction study and a bone scan because the managed care grievance procedure had not been exhausted and, therefore, the judge of compensation claims lacked jurisdiction to consider the claim for those treatment modalities. See Castro v. AT & T Wireless Servs., Inc., 780 So.2d 917 (Fla. 1st DCA 2000). In all other respects, the order is affirmed.

AFFIRMED IN PART and REVERSED IN PART.

BOOTH, WEBSTER and DAVIS, JJ., concur.


text:
    Kenneth D. ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3390.
    District Court of Appeal of Florida, First District.
    July 14, 2004.

      Jeffrey E. Lewis of the Office of Jack Behr, Public Defender, Milton, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Petitioner, Kenneth D. Allen, seeks cer-tiorari review of a judgment entered by the Circuit Court of Santa Rosa County, acting in its appellate capacity. The order determined that the county court’s summary denial of petitioner’s motion to withdraw his nolo contendere plea to charges of improper exhibition of a firearm and discharge of a firearm in public was improper, because petitioner raised the possibility of a defense to the improper exhibition charge. The appellate court found the record failed to demonstrate that the trial court made further inquiry regarding the factual basis for the plea after the possibility of a defense was raised, and it thereupon remanded to the trial court for further inquiry concerning the factual basis for the improper exhibition of a firearm charge. The circuit court concluded the only issue preserved for appellate review was the challenge to factual basis for the improper exhibition of a firearm charge, and declined to address the other issues petitioner raised in his direct appeal. Because we have determined that certiorari review is appropriate in the circumstances of this case, we issue the writ and remand for further proceedings.

On June 29, 2002, petitioner was arrested on charges of (1) improper exhibition of a firearm or dangerous weapon, pursuant to section 790.10, Florida Statutes (2002), and (2) discharge of a firearm in public, pursuant to section 790.15(1), Florida Statutes (2002). Both offenses are first-degree misdemeanors. According to the probable cause statement of the arrest report, the arresting officer responded to a disturbance at a trailer park which was reported by a caller at the park.. The officer took statements from individuals in the vicinity of the disturbance, including statements from the petitioner’s live-in girl friend and petitioner. The essence of these statements was that petitioner and his girl friend engaged in a loud verbal argument, which apparently culminated when petitioner’s mother and his girl friend left the trailer and walked across the street. Shortly thereafter, gunshots were heard.

On July 16, 2002, petitioner appeared before the county court without counsel, and entered a no-contest plea to the charges of improper exhibition of a firearm and discharge of a firearm in public. The plea colloquy provides in pertinent part:

THE COURT: Would the State say-a factual basis for the plea?
[PROSECUTOR]: Yes, Your Honor. On or about June 29, 2002, the Defendant, Kenneth Dwayne Allen, did exhibit a dangerous weapon or firearm and did shoot or discharge the firearm in Santa Rosa County. - ‘
THE COURT: All right. Do you agree with that?
MR. ALLEN: Except for one thing. It wasn’t like that. I was just cleaning the gun. That’s the way I always do it, you know, fire a couple of shots. I didn’t know it was against the law to fire a gun.
THE COURT: All right. But for purposes of the plea, you’re stipulating it is?
MR. ALLEN: Yes, sir.

The trial court adjudicated petitioner guilty of both charges, and. imposed consecutive one-year terms of probation as to each charge, together with twenty days of incarceration in county jail as a special condition ’ of probation on the charge of improper exhibition of a firearm. On July 19, 2002, petitioner, through counsel, moved to set aside the plea and sentence, on the ground that the trial court failed to establish an adequate factual basis for the charge of improper exhibition of a firearm. Four days latér, the trial court summarily denied the motion. Petitioner appealed to the appellate division of the circuit court, challenging (1) the warrantless arrest for offense's not committed in the presence of the arresting officer, (2) the failure to show that petitioner knowingly and voluntarily entered the no contest plea, and (3) denial of due process.

On June 24, 2003, the appellate division of the circuit court issued an opinion remanding the case to the trial court for further inquiry regarding the factual basis for the improper firearm exhibition charge, finding that this issue was the only issue petitioner preserved for review by his motion to withdraw plea, and that all other errors' raised in petitioner’s briefs were neither preserved for review nor fundamental error. Petitioner filed a motion for reconsideration or clarification of’the appellate decision, urging, among other things, that he raised a defense as to both charges. He further contended the lack of a factual basis for the prima facie elements of an offense charged is fundamental error, which may be raised for the first time on appeal. The circuit court denied the motion to reconsider, reaffirming that petitioner was entitled to further inquiry-only “as to the factual basis for the charge of Improper Exhibition of a Firearm.”

Petitioner seeks to invoke this court’s certiorari jurisdiction to quash the order of the circuit court, and to enter an order granting petitioner’s motion to set aside the plea, judgment, and sentence, and to direct petitioner’s discharge.

We are cognizant of the deliberation and prudence which district courts must apply in an exercise of certiorari review. See, generally, Stilson v. Allstate Ins. Co., 692 So.2d 979, 982 (Fla. 2d DCA 1997). In Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000), the supreme court recited the established standard of review, instructing that:

[T]he proper inquiry under certiorari review is limited to whether the circuit court afforded procedural due process and whether it applied the correct law. See Heggs, 658 So.2d at 528; see also Combs v. State, 436 So.2d 93, 95 (Fla.1983)(holding that in considering common law certiorari, district courts of appeal should be primarily concerned with the seriousness of the error, not the mere existence of error, and should exercise certiorari discretion only when there has been a violation of clearly established principles of law resulting in a miscarriage of justice); Martin County v. City of Stuart, 736 So.2d 1264, 1265 (Fla. 4th DCA 1999)(holding that when a district court of appeal reviews by certiorari the decision of a three-judge panel of the circuit court in its appellate capacity, the district court is limited to determining whether there was a lack of procedural due process or a departure from the essential requirements of law).

In this context, “applied the correct law” is synonymous with “observing the essential requirements of law.” See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). Therefore, “[a] district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003).

Petitioner contends the circuit court departed from the essential requirements of law in failing to direct the trial court to include the discharge of a firearm charge on remand for further inquiry as to the factual basis for the plea. We agree. “The purpose of the factual basis requirement is to insure ‘that the facts of the case fit the offense with which the defendant is charged.’ ” Davis v. State, 605 So.2d 936, 938 (Fla. 1st DCA 1992) (quoting Williams v. State, 316 So.2d 267, 271 (Fla.1975)). Accord State v. Pelham, 737 So.2d 572, 573 (Fla. 1st DCA 1999) (“The purpose of determining whether a factual basis for a plea exists is to prevent a defendant from mistakenly entering a plea to the wrong offense.”). Before accepting a plea of guilty or no contest, “the trial court must receive in the record factual information to establish the offense to which the defendant has entered his plea.” Dydek v. State, 400 So.2d 1255, 1257 (Fla. 2d DCA 1981). See also Waugh v. State, 388 So.2d 253, 254 (Fla. 2d DCA 1980) (citing Williams v. State, 316 So.2d 267 (Fla.1975)). In Dydek, the court stated: ‘We can think of no error more fundamental than the conviction of a defendant in the absence of a prima facie showing of the essential elements of the crime charged.” Dydek, 400 So.2d at 1258.

In this case, the transcript of the plea proceeding establishes that the trial court failed to determine an adequate factual basis for the existence of the charges against petitioner. The circuit court failed to comply with the established principle of law which holds that it is fundamental error to convict a defendant in the absence of a prima facie showing of the elements of the offense charged.

As a final note, we conclude petitioner has made a sufficient showing of a violation of clearly established principles of law resulting in a miscarriage of justice. Where, in the course of a plea colloquy, the defendant raises the possibility of a defense, “the potential prejudice is considered apparent and a further inquiry by the trial court is necessary.” Williams v. State, 534 So.2d 929, 930 (Fla. 4th DCA 1988) (citing State v. Kendrick, 336 So.2d 353 (Fla.1976)). If the trial court does not conduct an adequate inquiry with regard to the asserted defense, the defendant has demonstrated prejudice and is entitled to a writ of certiorari and remand for further inquiry into the factual basis for the plea. See Williams, 534 So.2d at 931; Farley v. City of Tallahassee, 243 So.2d 161, 162 (Fla. 1st DCA 1971) (state must establish every element of the crime charged independently of any admission or confession of the defendant).

Here, petitioner’s comments at the plea colloquy establish that he was not cognizant of the particulars of the charges against him. Moreover, petitioner’s comments demonstrate existence of a possible defense to both charges, but the trial court failed to inquire further, thereby raising doubt as to the validity of the plea. We conclude that the circuit court, sitting in its appellate capacity, departed from the essential requirements of law by ruling that petitioner was entitled to remand for further inquiry into the factual basis for the improper exhibition of a firearm charge, but not as to the factual basis for the offense of discharge of a firearm in public.

Accordingly, we GRANT the petition in part, QUASH that portion of the circuit court order which denied relief as to the second charge, and REMAND the case to the circuit court for further proceedings consistent with this opinion.

WOLF, C.J., ERVIN and VAN NORTWICK, JJ., concur.

      . In this regard, we conclude the deficiency in the factual basis for both charges is not cured by the probable cause statement of the arrest report.


text:
    DIXIELAND ASSETS, Petitioner, v. Bonita Pitts LEWIS, Respondent.
    No. 1D03-5469.
    District Court of Appeal of Florida, First District.
    July 14, 2004.
    Bill A. Corbin, pro se, for Petitioner.
    Bonita Pitts Lewis, pro se, for Respondent.
   PER CURIAM.

Given the circuit court’s erroneous conclusion that petitioner is a corporation, we grant petitioner’s petition for a writ of certiorari and quash the circuit court’s order dismissing petitioner’s petition without prejudice to petitioner refiling a petition signed by a licensed attorney. See Riverwalk Apartments, L.P. v. RTM Gen. Contractors, Inc., 779 So.2d 537, 539 (Fla. 2d DCA 2000) (“A fictitious name is just that — a fiction involving the name of the real party in interest, and nothing more.”).

GRANTED.

WOLF, C.J., KAHN and LEWIS, JJ., concur.


text:
    Jeffery TOMLINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1804.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Jeffrey Tomlinson, timely appeals his revocation of probation. We find Tomlinson’s argument on the merits to be unpersuasive and decline to address it further. However, we acknowledge that the trial court’s written order does not conform with its oral pronouncement. The trial court found Tomlinson guilty of violations 1, 2, 5, 6, 7, 8, 15 and 16. Notwithstanding, the written order finds Tomlin-son guilty of violations 2, 5, 6, 7, 8, and 9. “[W]here a written order and an oral pronouncement are in conflict, the oral pronouncement prevails.” Lacey v. State, 831 So.2d 1267, 1270 (Fla. 4th DCA 2002). The State does not contest which violations the trial court convicted Tomlinson on or that the written order does not conform to the oral pronouncement. Accordingly, we remand for clarification of the inconsistent written order.

REMANDED.

STONE, POLEN and SHAHOOD, JJ., concur.


text:
    Berthole EUGENE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-4881, 4D02-4888.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The state concedes that the habitual felony offender sentence imposed upon the revocation of appellant’s probation was improper. We agree that the sentence should be reversed because appellant’s original probationary sentence was not a habitual offender sentence. See Snead v. State, 616 So.2d 964, 965-66 (Fla.1993); Samuels v. State, 757 So.2d 1273, 1274 (Fla. 4th DCA 2000).

Reversed and remanded for resentenc-ing.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Taiser Hosien OKASHAH, Petitioner, v. Ken JENNE, as Sheriff of Broward County, Florida, Respondent.
    No. 4D04-2684.
    District Court of Appeal of Florida, First District.
    July 19, 2004.
    H. Frank Rubio and Rodney W. Bryson, Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   CORRECTED OPINION

PER CURIAM.

We grant petitioner’s petition for writ of habeas corpus. He is being detained without bond, by order of the court, until the completion of a psychological evaluation. The respondent has provided us with no reason for properly detaining petitioner further under this order, and we accordingly grant the petition and order his immediate release.

FARMER, C.J., STONE and KLEIN, JJ., concur.


author: JjPER CURIAM.

text:
    STATE ex rel Scott Jude BOURQUE v. Burl CAIN, Warden.
    No. 2003-KP-0602.
    Supreme Court of Louisiana.
    Jan. 30, 2004.
   JjPER CURIAM.

In Ford v. Wainwright, 477 U.S. 399, 417, 106 S.Ct. 2595, 2606, 91 L.Ed.2d 355 (1986), the United States Supreme Court made clear that the Eighth Amendment to the United States Constitution precludes the states from executing “one whose mental illness prevents him from comprehending the penalty or its implications.” Shortly thereafter, this court followed suit, finding that the Louisiana Constitution, as well, bars the execution of one “who lacks the capacity to understand the death penalty.” State v. Perry, 502 So.2d 543, 563-4 (La.1986). Though the rule is clear— those who are mentally incompetent cannot be executed — neither the standard nor the means by which the mental competence of a death row inmate should be measured is not.

Faced with a similar situation following the United States Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which barred the execution of the mentally retarded, this court fashioned guidelines for an evidentiary hearing on mental retardation to be conducted in appropriate cases. State v. Williams, 2001-1650 (La.11/1/02), 831 So.2d 835; see also State v. Dunn, 2001-1635 (La.11/1/02), 831 So.2d 862. The legislature, during the next legislative session following the issuance of Williams and Dunn, passed a statute which provided a comprehensive procedure for evaluating an 12inmate’s mental retardation in the context of a death penalty case. La.Code Ceim. PROC. art. 905.5.1.

With the above in mind, we grant the appellee’s application for supervisory writs but withhold issuing any guidance until the legislature has had the opportunity to address the issue. If legislature fails in the upcoming legislative session to provide to the courts by statute a comprehensive method for determining a death row inmate’s mental competency, then this court will be forced to issue such guidelines.

      . A comprehensive statute would address the following non-exclusive matters: the definition of mental incompetence, the requirements for a contradictory hearing, the burden of persuasion, the standard of proof, the identity of the factfinder, the time for making a claim of mental incompetence, the nature of the testimony and/or evidence required, the finality of a mental competence determination, and any procedure by which the state might periodically challenge the continuing validity of a determination of incompetence.


text:
    STATE of Louisiana v. Derrell J. BRADLEY, Kenneth G. Green, Torey King, and Eric Bell.
    No. 2004-KA-0738.
    Supreme Court of Louisiana.
    June 18, 2004.
   PER CURIAM.

The judgment of the court is vacated and this case is remanded for reconsideration of the motion to quash in light of State v. Mercadel, 03-3015 (La.5/25/04), 874 So.2d 829.

JUDGMENT REVERSED; CASE REMANDED.


author: hPER CURIAM.

text:
    In re Roxanne D. ANDRUS.
    No. 2004-B-0403.
    Supreme Court of Louisiana.
    June 25, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

hPER CURIAM.

This disciplinary matter arises from two sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Roxanne D. Andrus, a disbarred attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Two sets of formal charges were filed against respondent by the ODC. The first, bearing the disciplinary board’s docket number 02-DB-009, was filed on January 28, 2002 and encompasses fourteen counts of misconduct. The second set of formal charges, 02-DB-071, was filed on July 19, 2002 and encompasses two counts of misconduct. The two sets of formal charges were considered by separate hearing committees, then consolidated by order of the disciplinary board on March 25, 2003. On February 11, 2004, the disciplinary board filed in this court a single recommendation of discipline encompassing both matters involving respondent.

\z02~DB-009

Counts I and II — The Kelly Matter

In April 1999, Virginia Kelly retained respondent to represent her in a child custody case. Ms. Kelly paid respondent $750 in connection with the matter. Respondent neglected the matter, failed to communicate with her client, and failed to refund the unearned portion of the legal fee she was paid. Respondent also failed to cooperate with the ODC in its investigation of Ms. Kelly’s complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Counts III and IV — The Thibeaux Matter

In June 1998, Francis Thibeaux retained respondent to represent him in a personal injury matter. Respondent neglected the matter and failed to communicate with her client. Respondent also failed to cooperate with the ODC in its investigation of Mr. Thibeaux’s complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,3.2, 8.1(c), and 8.4(g).

Counts v. and VI — The Mason Matter

In June 2000, Charles and Ethel Mason retained respondent to prepare a Power of Attorney and either an Act of Sale or an Act of Donation of property to them from | sMrs. Mason’s parents. Respondent neglected the matter and failed to communicate with her clients, and ultimately both of Mrs. Mason’s parents died before Mr. and Mrs. Mason were able to secure the transfer of the property at issue. Furthermore, respondent failed to cooperate with the ODC in its investigation of Mr. and Mrs. Mason’s complaint.

The ODC alleged respondent’s condúct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,3.2, 8.1(c), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(g).

Counts.VII and VIII— The Espree Matter ■

In August 2000, Leonard Glenn Espree retained respondent to represent him in a criminal case in which he was charged with issuing worthless checks. Mr. Espree gave respondent $4,834.81 that was intended for reimbursement of the victims, but respondent failed to remit these funds to the District Attorney’s Office and instead converted the funds to her own use. Respondent also neglected Mr. Espree’s criminal case and failed to communicate with her client. Furthermore, respondent failed to cooperate with the ODC in its investigation of Mr. Espree’s complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.15 (safekeeping property of clients or third persons), 3.2, 8.1(c), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation),. 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g).

14Counts IX and X — The Batiste Matter

Noel Batiste, Jr. retained respondent to represent him in a personal injury matter arising out of a rear-end collision that occurred in November 1998. After filing suit in the matter, respondent settled the personal injury case for $2,000. Mr. Batiste was unaware that respondent had filed the lawsuit, and respondent did not obtain Mr. Batiste’s consent to the settlement. After receiving the settlement check and related documents from the defendant insurer in February 2000, respondent prevailed upon Mr. Batiste to endorse the check. Mr. Batiste did so, and thereafter respondent informed him that he would receive $500 from the settlement after deductions were made for medical expenses and attorney’s fees. Mr. Batiste believed this amount was inadequate and told, respondent to reject the settlement and return the funds to the insurer. Notwithstanding Mr. Batiste’s instructions, respondent sent the executed settlement documents (including a judgment of dismissal in the personal injury case) to the insurer and negotiated the settlement check; however, Mr. Batiste received no funds from the settlement. Furthermore, respondent failed to cooperate with the ODC in its investigation of Mr. Batiste’s complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.15, 3.2, 8.1(c), 8.4(a), 8.4(b), 8.4(d), and 8.4(g).

Counts XI and XII — The Benjamin Matter

In January 2000, Sherry Benjamin retained respondent to handle a criminal case pending against her brother, Issac Julian, Jr., in the United States District Court for the Western District of Louisiana. Ms. Benjamin paid respondent $2,500 in connection with the matter. Respondent neglected the matter, failed to communicate with her | sclient, and failed to enroll as counsel or to appear in court on Mr. Julian’s behalf. Following a hearing in February 2001, United States District Judge Rebecca Doherty ordered respondent to refund the legal fee Ms. Benjamin paid; however, respondent failed to do so. Respondent also failed to cooperate with the ODC in its investigation of Ms. Benjamin’s complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5,1.15, 8.1(c), 8.4(a), and 8.4(g).

Counts XIII and XIV — The Chaisson Matter

Mary Elsie Chaisson retained respondent to handle a criminal case for her husband, and later, a child custody case for her son. Respondent neglected the matters, failed to communicate with her clients, and failed to refund the unearned portion of the legal fee she was paid. Respondent also failed to cooperate with the ODC in its investigation of Mrs. Chaisson’s complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5, 3.2, 8.1(c), 8.4(a), and 8.4(g).

02-DB-071

Counts I and II — The West Matter

In February 2002, the ODC received a complaint against respondent from Linda Simar, the director of Kingsley Place, an assisted living facility in Lafayette. Ms. Simar reported that Margaret West, a 92-year old resident of Kingsley Place, gave respondent a power of attorney to assist in handling her financial affairs, but thereafter respondent issued checks for payment of Mrs. West’s monthly lease at Kingsley Place | (¡that were returned for insufficient funds. Ms. Simar stated that respondent was aware that the checks had been returned and that Mrs. West’s account with Kingsley Place had gone past due, but that respondent had done nothing to remedy the situation.

Respondent failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Simar, and she failed to comply with several requests from Mrs. West that she provide an accounting. Nevertheless, with the assistance of the Elderly Protective Services of the St. Martin Parish Sheriffs Office, the ODC learned that Mrs. West granted a power of attorney to respondent in August 2000. Mrs. West paid her own expenses until June 2001, at which time respondent and Mrs. West opened a joint checking account at Bank One. From that point, respondent began converting Mrs. West’s funds to her own use. Respondent also used one of Mrs. West’s credit cards for her own purposes, and unbeknownst to Mrs. West, she 17applied for and received two new credit cards using Mrs. West’s name and social security number.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.15, 8.4(a), 8.4(b), 8.4(c), and 8.4(g).

DISCIPLINARY PROCEEDINGS

Respondent was personally served with both sets of formal charges. She failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration in either matter.

Hearing Committee Recommendations 02-DB-009

Based on the facts that were deemed admitted, the hearing committee found respondent violated the Rules of Professional Conduct as charged in the formal charges. The committee determined that respondent violated duties owed to her clients by failing to act with reasonable diligence and promptness in her various representations, often resulting in severe, if not irreparable, harm to those clients. She continually failed to keep her clients reasonably informed about the status of their Leases and failed to comply with their reasonable requests for information. Even now, respondent has not provided an accounting of client funds, nor refunded unearned fees, in one instance in defiance of a court order. She cavalierly ignored her duty to cooperate in the disciplinary investigation of all the underlying complaints. The committee concluded respondent’s conduct was intentional. Considering the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence of this court dealing with similar misconduct, the committee determined the baseline sanction in this matter is disbarment.

As aggravating factors, the committee recognized respondent’s disbarment in An-drus I, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and indifference to making restitution. The committee found there are no mitigating factors present.

Under all the circumstances, the committee felt respondent’s misconduct was serious enough to warrant consideration of permanent disbarment. Alternatively, considering that some of the misconduct at issue here occurred during the same time frame as the misconduct at issue in An-drus 7, the committee recommended that the additional violations be added to her record for consideration in the event she applies for readmission after becoming eligible to do so. See Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991). The committee also recommended that respondent be ordered to make full restitution to her former clients.

1 cPZ-DB-011

Based on the facts that were deemed admitted, the hearing committee found respondent violated the Rules of Professional Conduct as charged in the formal charges. The committee noted the seriousness of respondent’s conduct in converting Mrs. West’s funds to her own use and paying her own personal bills on credit cards that she acquired in Mrs. West’s name. She has failed to make any restitution whatsoever for these funds. There is no question that respondent has demonstrated her lack of any regard whatsoever for the interests of her client by failing to acknowledge these complaints and by continuing to make charges and convert funds belonging to Mrs. West, even when she was aware that she was being investigated by Elderly Protective Services concerning her use of the credit cards and the funds belonging to Mrs. West. In addition, respondent has knowingly and intentionally failed to cooperate with the ODC. Considering these circumstances, the committee recommended that respondent be permanently disbarred.

On October 10, 2003, after both hearing committees had submitted their recommendations to the disciplinary board, respondent filed a “Response for Consideration,” asserting that her failure to cooperate in these proceedings stemmed from an unspecified medical condition that resulted in the loss of her breasts. Respondent urged that she not be permanently disbarred.

Disciplinary Board Recommendation

After reviewing the consolidated matters, the disciplinary board agreed that respondent violated the Rules of Professional Conduct as charged in both sets of formal charges. The board found that respondent violated duties owed to her clients, |inthe public, the legal system, and the profession. Her conduct was intentional and caused substantial injury. Respondent has converted or mishandled property belonging to Mrs. West, Mr. Es-pree, and Mr. Batiste. She has neglected the legal matters of each client who filed a complaint against her, causing delays in their legal matters, and in some instances, putting their legal rights at risk. Respondent’s repeated failure to cooperate with the ODC has caused unnecessary depletion of the agency’s resources in that additional investigative efforts had to be pursued. The board concluded the appropriate baseline sanction for respondent’s misconduct is disbarment.

As aggravating factors, the board recognized respondent’s prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and indifference to making restitution. The board found that the mitigating factor of personal problems is present, and recognized that during some of the time period at issue, respondent suffered from serious medical problems. However, the board determined that while respondent’s medical problems may mitigate the severity of some of her misconduct involving neglect of legal matters and failure to communicate with clients for a short period of time, the medical problems do not excuse her misconduct involving the improper handling of client funds, her chronic neglect of her clients’ legal matters, and her repeated failure to cooperate with the ODC.

The board then turned to a discussion of the sanction of permanent disbarment. Respondent’s conduct fits within Guideline 1 of the permanent disbarment guidelines, which provides for permanent disbarment when an attorney engages in “repeated or multiple instances of intentional conversion of client funds with substantial harm.” InHere, respondent converted funds from and made unauthorized credit card charges to Mrs. West, a 92-year old nursing home resident. Respondent also converted the $4,834.81 Mr. Espree gave her to cover his NSF checks and converted Mr. Batiste’s $2,000 personal injury settlement.

The board acknowledged the concern expressed by the hearing committee in 02-DB-009 to the effect that much of the misconduct at issue in this matter occurred during the same time period as Andrus I. However, the board pointed out that numerous instances of serious misconduct occurred in 2001 and 2002, after the misconduct in Andrus I ended. Therefore, the board concluded that the Chatelain rule is not controlling here, and accordingly, recommended that respondent be permanently disbarred. The board also recommended that respondent be ordered to make restitution to her victims and that she be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

The record overwhelmingly supports a finding of professional misconduct that is of the most serious nature. Respondent has engaged in a chronic pattern of accepting legal representations when she had no apparent intention of rendering services or communicating with her clients in the future. She has refused to refund unearned legal fees and has failed to cooperate with the ODC in eight separate | ^disciplinary investigations. Her intentional actions have resulted in serious harm to her clients, the most egregious example of which is the West matter, in which respondent exploited the power of attorney granted her by an elderly client, Mrs. West, as a means to finance what can only be described as a personal “shopping spree.” Respondent has never accounted to her client for the funds under her control during the .time the power of attorney was in effect, nor has she ever paid any restitution to her client for the funds she converted.

In determining the appropriate sanction for respondent’s misconduct, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s conduct clearly violated duties owed to her clients, the public, the legal system, and the profession. Unquestionably, the baseline sanction for such misconduct is disbarment. Numerous aggravating factors are present, including prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and indifference to making restitution. We are unable to discern any mitigating factors from the record.

Having found disbarment is the appropriate sanction, the sole remaining issue presented for our consideration is whether respondent’s conduct is so egregious that | isshe should be permanently prohibited from seeking readmission to the practice of law.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment. Guideline 1 applies to “repeated or multiple instances of intentional conversion of client funds with substantial harm.” Respondent’s reprehensible conduct in handling Mrs. West’s affairs clearly falls within the scope of this guideline.

The nature of the misconduct subject of the instant proceedings, coupled with respondent’s demonstrated indifference for the welfare of her clients, convincingly establishes that she does not possess the moral fitness to practice law and that she poses a threat of danger to the public in the event she is permitted to resume practicing law. Respondent has disregarded and ignored her obligation to uphold the high standards of honesty and righteousness that she assumed when she took the oath as a member of the bar of this state. Louisiana State Bar Ass’n v. Haylon, 250 La. 651, 198 So.2d 391, 392 (1967). She has used her law license not to foster the high standards of the profession, hut to exploit her clients for her own benefit. This court cannot and will not tolerate such conduct. Without question, respondent must be permanently disbarred.

| ^Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Roxanne Denise Andrus be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent is ordered to provide complete accountings and full restitution to her victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent was disbarred in 2002 for serious professional misconduct that included neglect of legal matters, failure to communicate with clients, failure to account for or refund unearned legal fees, failure to properly safeguard client and third-party funds, and failure to cooperate with the ODC in its investigation. In re: Andrus, 02-0279 (La.4/19/02), 814 So.2d 1283 ("Andrus I").

      . Two checks drawn on Mrs. West’s barde account and payable to Kingsley Place were returned for insufficient funds: one dated December 12, 2001 in the amount of $1,671, and a second dated February 15, 2002 in the amount of $4,000. Though both checks are signed "Margaret H. West,” the handwriting appears to be respondent's.

      . Mrs. West revoked the power of attorney in March 2002.

      .Wendy Breath, an Elderly Protective Services casemanager for the St. Martin Parish Sheriff's Office, obtained copies of the bank statements for the joint checking account covering the period June 12, 2001 (the date the account was opened) through April 9, 2002. These statements do not reflect the payees of the numerous checks written on the account, but according to Ms. Breath, the spending "far exceeds Mrs. West's expenses.” Furthermore, the statements reflect that deposits totaling $40,613.50 were made to the account during the first month it was open, but by November 27, 2001, the account was overdrawn. In all, the statements reflect no less than twenty occasions on which the bank charged a fee due to insufficient funds in the account.

      .Ms. Breath obtained copies of the statements for Mrs. West’s Chase Gold MasterCard covering the period July 6, 2001 through April 4, 2002. Although this card was issued to Mrs. West prior to her involvement with respondent, Ms. Breath stated that Mrs. West “never had more than about $500 worth of charges on the card.” The statements reflect numerous cash advances and late fee and returned check charges, as well as charges that are not likely attributable to a 92-year old resident of an assisted living facility, including charges from Saks Fifth Avenue, Gap Kids, the Disney Store, Kate Spade, the Windsor Court Hotel, the Ritz Carlton Hotel, Mr. B's Bistro, and Pat O’Brien's. At one point, the balance on Mrs. West's Chase credit card exceeded $13,000. There is no information in the record concerning the charges billed to the two new credit cards that respondent requested in Mrs. West's name.

      . In May 2002, Mrs. West filed a police report against respondent with the Lafayette Police Department for the crime of financial exploitation of the infirm, a violation of La. R.S. 14:93.4. There is no information in the record concerning the status of the criminal complaint.

      . The committee did not find that respondent violated Rule 8.4(a) in connection with Count VI, the Mason matter, or Count XIII, the Chaisson matter, but that appears to be a mere oversight.

      . The misconduct at issue in Andrus I occurred between 1996 and 2000, while the misconduct in 02-DB-009 commenced in 1998 and continued into the summer of 2001.

      . Though not charged in the formal charges, the committee also found that respondent violated Supreme Court Rule XIX, §§ 9(a) and 9(c).

      . The board noted that it is impossible to determine the exact amount of the conversion from the documents submitted by the ODC, but estimated that respondent converted and/or misused more than $47,618. The amount charged to the two credit cards that respondent improperly requested and received in Mrs. West's name is unknown.

      . Like the disciplinary board, we do not believe that respondent’s medical problems mitigate the seriousness of the intentional misconduct in which she engaged.

      . At first glance, it might appear the Chate-lain approach is applicable to this case, as some of the misconduct at issue occurred during the same time frame as the misconduct in Andrus I. While we agree there is some overlap between Andrus I (1996-2000) and the two consolidated matters here (1998-2001 and 2001-2002), that fact is of no moment when numerous instances of very serious misconduct occurred after the misconduct found in Andrus I ended.