author: WHATLEY, Judge.

text:
    In the Interest of B.T. and D.T., minor children. E.T., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-5781.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2004.
    Rehearing Denied Dec. 6, 2004.
    Frank D.L. Winstead of Winstead Law Offices, New Port Richey, for Appellant.
    Bernie McCabe, State Attorney, and Kerya Koeut, Assistant State Attorney, Clearwater, for Appellee.
   WHATLEY, Judge.

The Mother, E.T., appeals the termination of her parental right to D.T. and B.T. We reverse.

The problem in this case is that the trial court failed to make any findings of fact or conclusions of law. The twelve-page final judgment terminating the Mother’s parental rights was submitted by counsel for the Department of Children and Family Services (DCF). It was signed by the trial court on the day it was submitted. The only changes were nonsubstantive. Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), has cautioned against such conduct. See also Walker v. Walker, 873 So.2d 565 (Fla. 2d DCA2004).

DCF, in an attempt to distinguish Per-low, argues that Perlow only applies to family law matters and that the final judgment was only twelve pages in length. These assertions are rejected.

We take no position on the merits of this appeal but are compelled to reverse the final judgment and remand for a new hearing.

Reversed and remanded.

FULMER and VILLANTI, JJ„ Concur.

      . In Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), the final judgment was twenty-five pages.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Danielle WATON, Appellant, v. Craig WATON, Appellee.
    No. 4D02-4828.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Rehearing Denied Dec. 22, 2004.

      Cynthia L. Greene of the Law Offices of Greene, Smith & Associates, P.A., Miami, and Andrew L. Salvage of Andrew L. Salvage, P.A., Fort Lauderdale, for appellant.
    Jonathan M. Streisfeld, Roberta G. Stanley and Kenneth A. Gordon of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Fort Lauderdale, for appellee.
   STONE, J.

We affirm the trial court’s order upholding the validity of an antenuptial agreement.

We recognize that the result in this dissolution after eighteen years of marriage is harsh. Wife has not worked full time in thirteen years, while Husband is now making a very large salary and has a net worth of over three million dollars. As a result, Husband is left with considerable wealth and income, while Wife waived all rights to alimony and equitable distribution by signing an antenuptial agreement. It is undisputed that the agreement is patently unreasonable. However, if an unreasonable agreement is freely entered into, it is enforceable. Casto v. Casto, 508 So.2d 330, 334 (Fla.1987).

The primary issue considered in this appeal is whether Husband made a full and fair disclosure of his net worth and income to Wife at the time of the antenup-tial agreement, allowing Wife to make a free and voluntary relinquishment of her property rights to Husband’s assets. As there is substantial, competent evidence supporting the trial court’s decision, we find no abuse of discretion.

The parties decided to get married after living together for six months. The marriage date was set to be six weeks after their decision. Husband had been previously married and divorced. Due to the prior divorce experience, Husband insisted upon an antenuptial agreement. Wife, a native of Morocco, was 34-years-old when she decided to marry Husband. In the face of conflicting testimony, the trial court expressed reluctance to believe Wife’s evidence as to the extent to which she understood English. Husband testified that English was the only language spoken by the couple throughout the relationship. Although Wife spoke four languages, English was the only language Husband understood. Wife also obtained a “GED” degree and passed a cosmetology exam and a licensing exam for insurance sales agents in English.

At no time prior to, or during, the signing of the agreement did Wife indicate that she did not understand the legal consequences and terms of the agreement. The agreement provided that Husband was entitled to all the property he currently owned and “any hereinafter acquired, including any salary or income or dividends from such assets or interests.” Similarly, Wife was to retain all the property she owned and any later acquired property. The agreement also stated that in the event the marriage dissolved, neither party would be entitled to any sort of monetary support from the other.

Exhibit A to the antenuptial agreement is a list of assets owned by Husband. This list included all of Husband’s assets with their corresponding values. Several of the assets, however, although described, did not include an expressed valuation, but stated: “value unknown as of the date hereof,” “exact-value unknown,” or “value unknown and undetermined.” Two such valuation descriptions applied to Husband’s interest in two businesses that have never had any significant value and are essentially moot. However, a major asset with such non-stated value was the interest Husband owned in America’s # 1 Life and Health Insurance, Inc., the company where he worked. The agreement recognized that Husband owned a 25% interest, soon to be 33 1/3% interest, in that business. At trial, a certified public accountant, called by Husband, testified that at the time of the marriage, the value of Husband’s interest in the business was $386,000.

The antenuptial agreement was prepared two weeks before the wedding date. Both parties were represented by counsel when the antenuptial agreement was executed, although Wife selected her attorney from a list of names suggested by Husband’s attorney. Wife’s attorney testified that he did not specifically remember her, but is certain of his representation because he signed the certificate of attorney. He confirmed the accuracy of his certificate, essentially stating that the attorney went over the antenuptial agreement with Wife and that he advised her of the legal significance of the agreement and its impact on her property rights.

In its ruling, the trial court emphasized it did not find Wife’s testimony credible and concluded: First, that the subject antenuptial agreement was not the product of fraud, overreaching, misrepresentation, undue influence, duress or coercion by Husband. Second, that Wife had a reasonable and proximate knowledge of Husband’s net worth and income based upon the information provided to the Wife by Husband at the time the antenuptial agreement was signed.

We take the facts most favorably in support of the trial court’s decision. See San Martin v. State, 717 So.2d 462, 469 (Fla.1998). Furthermore, “the findings of the trial court come to this court clothed with a presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them.” Baker v. Baker, 394 So.2d 465, 468 (Fla. 4th DCA 1981); see also Schreiber v. Schreiber, 795 So.2d 1054, 1057 (Fla. 4th DCA 2001); Snedaker v. Snedaker, 660 So.2d 1070, 1072-73 (Fla. 4th DCA 1995).

We initially conclude that the trial court did not abuse its discretion in rejecting Wife’s claim that the agreement was induced by duress and coercion. Wife claims her case is similar to Hjortaas v. McCabe, 656 So.2d 168 (Fla. 2d DCA 1995). In Hjortaas, the wife was asked to sign a prenuptial agreement two days before the wedding, leaving her “only one day to seek counsel from her own attorney, to make an independent evaluation of the contract, or to cancel her wedding.” Id. Further, she did not previously know the agreement’s terms and no information was in the agreement regarding her husband’s finances. Id. “The timing of the signing of the document indicates that ... [the wife’s] signature was the product of duress.” Id.

This case is clearly distinguishable. Here, Wife received the agreement two weeks before the wedding; Husband had told Wife about the proposed terms long before the agreement was prepared; he made a list of his assets and showed them to Wife before contacting a lawyer to draft the antenuptial agreement. We note that the court, in Hjortaas, indicated that if the wife in that case had known of the proposed terms three weeks earlier, when the couple met with the husband’s attorney, that fact would have made it less likely that she signed under duress. Id.

Further, here, Husband told Wife that before they could get married, there would have to be an antenuptial agreement in which she would agree that she would not receive anything from him. There is also testimony that even if the parties did not get married because Wife did not agree to sign the antenuptial agreement, Husband would not have terminated the relationship and the couple would have continued to live together. Furthermore, unlike Hjor-taas, the actual agreement in this case does contain Husband’s financial information.

Wife also argues that the agreement was a product of overreaching. See Tenneboe v. Tenneboe, 558 So.2d 470 (Fla. 4th DCA 1990); McGregor v. McGregor, 447 So.2d 994 (Fla. 4th DCA 1984). However, we find each of the authorities relied on to be distinguishable.

Unlike Tenneboe, this case does not involve a situation where Wife agreed to pay her income to Husband. At the most, this agreement withdraws Husband’s support from Wife, anticipating that she would support herself. Here, also, Wife was represented by counsel and she has not made any allegations that Husband, or his attorney, made misrepresentations to her. Here, unlike the circumstances in McGre-gor, the property in question was never Wife’s property, and the agreement provides that each spouse will keep their property separate.

This court has previously recognized that even though an agreement is one-sided and unfair, that alone does not make it the result of overreaching. Schreiber.

Wife asserts that even if she does not prevail as a result of her claims of duress, coercion, and overreaching, she is entitled to prevail under the second ground recognized in Casto and Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962).

For guidance, we look to Del Vecchio and Casto. These authorities require that, under these circumstances, the challenging spouse have “a general and approximate knowledge of ... [the other spouse’s] property and resources,” Del Vecchio, 143 So.2d at 21, and “a general knowledge of the income of the parties.” Casto, 508 So.2d at 333. Here, there is no dispute that Wife had knowledge of Husband’s income at the time of execution. Therefore, our focus is on whether there is record support for a conclusion that Wife had a general and approximate knowledge of Husband’s property and resources.

Under this second ground, to establish that an agreement is unenforceable, the challenging spouse must satisfy a two-prong test. First, that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Casto, 508 So.2d at 330 (citing Del Vecchio, 143 So.2d at 20). Second, after establishing the agreement is unreasonable, a rebuttable presumption arises conceding that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached. Id. The presumption shifts the burden to the defending spouse, who may rebut these presumptions by showing that there was either:

(a) a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all marital property and the income of the parties, or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties.

Id. at 333.

In this case, the antenuptial agreement was indisputably unfair and unreasonable, and the agreement is certainly “disproportionate to the means” of Husband. Id. (quoting Del Vecchio, 143 So.2d at 19-20); see also Fleming v. Fleming, 474 So.2d 1247, 1248 (Fla. 4th DCA 1985)(stating that if “an instrument provided for the wife to get nothing at all, it would be simple to find it unfair on its face.”). Therefore, the first prong of the test is satisfied and the presumption arises that Husband attempted to conceal his finances or that Wife had no knowledge of Husband’s finances. The burden, then, falls on Husband to prove that he disclosed his assets or that Wife had knowledge of them.

As to the disclosure, “there must be a full, frank disclosure as to the value of all the marital property.” Casto, 508 So.2d at 330. This includes a “good faith disclosure by the prospective husband of the material facts relating to the character and value of his property.” Stated otherwise, Husband is required to disclose such information regarding his assets as to provide Wife with:

a general and approximate knowledge by her of the prospective husband’s property. The term “approximate” is, for this purpose, held synonymous with “near”, “close to” or “approaching” .... And while the disclosure should be full, fair, and open, it need not be minutely detailed nor exact. The test is the adequacy of the knowledge of the woman— she must have had some understanding of her rights and a general and approximate knowledge of his property and resources. The basic issue is concealment, not the absence of disclosure, and the wife may not repudiate if she is not prejudiced by lack of information.

Del Vecchio, 143 So.2d at 20.

The disclosure is necessary to show that the spouse “possessed such general and approximate knowledge of his property as to enable [the spouse] to reach an intelligent decision to enter into the agreement.’’ Del Vecchio, 143 So.2d at 21 (emphasis added). See also Casto, 508 So.2d at 333 (two alternative means of rebutting the presumption of concealment or lack of knowledge, one is full frank disclosure by the defending spouse and the other is general and approximate knowledge of the “character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties.”).

Here, Husband listed the actual value of his various accounts and holdings except for his three business interests. As to the only one of significant value, the question is whether the following language may be construed by the trial court as a full, frank disclosure:

25% interest soon to be 33 1/3% interest in America’s No. Life and Health Agency, Inc., which has an address of 4624 Hollywood Boulevard, Hollywood, Florida
* * *
Exact value unknown but see note below:
* * *
* *Stock ownership interest:
Note on America’s No. 1 Life and Health Agency, Inc. — Corporation itself makes approximately $750,000.00, a year gross on renewal commissions on current policies, deductions are made from the gross commissions to pay the respective agents their proportionate or required commissions. Corporation makes approximately $1,000,000.00 a year gross on new policies, but from these sums payments are made to cover, salaries, office overhead, and general operating expenses of the office.

Here, as Wife knew that Husband owned part of the business and knew his income, the remaining question is whether her general knowledge was sufficient for one to obtain a value “by reasonable means.” Id. Significantly, there is no indication in the record that Husband had anymore information as to valuation than that disclosed to Wife, and there is no suggestion that any equity or assets of the business were in any way secretly set aside for the future benefit of Husband. Here, also, Wife did not make trade offs in the agreement, or otherwise rely upon misleading disclosure information to her detriment. Wife also never sought clarification or additional information. The court could conclude from the record that, whatever an appraised value might be, Wife accepted that she would receive nothing.

Further, the record reflects that an expert would have been needed to accurately value the business. We do not read into Del Vecchio or Casto a requirement imposing a duty on Husband to hire an expert to determine a valuation of his interest in the agency before the parties could marry. To so hold would mandate that all parties entering into such agreements first obtain a professional appraisal of business or professional interests, even without proof that such appraisal could be accomplished within the time remaining prior to the marriage, and at reasonable cost, and with the data and information available.

We cannot conclude, on this record, that the court could not reasonably conclude that Wife was provided with sufficient general and approximate knowledge of Husband’s net worth and income, or that the order is an abuse of discretion.

Therefore, the order is affirmed.

WARNER, J. and BRYAN, BEN L„ Associate Judge, concur.

      . We note that Casto and Del Vecchio involved post-nuptial agreements. They are, nevertheless, controlling as to pre-nuptial agreements. See Posner v. Posner, 233 So.2d 381 (Fla.1970).

      . We have considered Casto, notwithstanding that it was issued after the agreement in this case was executed.


author: PER CURIAM.

text:
    Jerry K. OSTRY, Appellant, v. CITY OF WEST PALM BEACH, Appellee.
    No. 4D03-3437.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Rehearing Denied Dee. 28, 2004.
    Isidro M. Garcia and M. Kate Boehringer of Garcia, Elkins & Boehringer, P.A., West Palm Beach, for appellant.
    Jennifer H.R. Hunecke and Douglas Yeargin, Assistant City Attorneys, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Brown v. Estate of Stuckey, 749 So.2d 490, 494 (Fla.1999), reh’g denied (Jan. 12, 2000).

FARMER, C.J., SHAHOOD, J„ and GREENE, CHARLES M., Associate Judge, concur.


text:
    Anthony HERNDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2625.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Anthony Herndon, Montieello, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. The motion filed under Florida Rule of Criminal Procedure 3.850 was not filed within the time prescribed by subsection (b).

WARNER, STEVENSON and MAY, JJ., concur.


text:
    Clarence JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-4018.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Rehearing Denied Dec. 2, 2004.
    Clarence Johnson, Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 14, 2004, the Court has determined that the notice of appeal was not timely filed because the motion for rehearing was not filed within fifteen days of the date of service of the trial court’s order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    Alvin E. COLLINS, Jr., Appellant, v. Jacqueline COLLINS, Appellee.
    No. 3D03-3195.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.
    Gregory S. Starr, for appellant.

      Charles J. Crist, Jr., Attorney General and Toni C. Bernstein, and William H. Branch, Assistant Attorney Generals, for appellee.
    Before GERSTEN, GREEN and SHEVIN, JJ.
   PER CURIAM.

Alvin Collins appeals the trial court’s final judgment awarding child support. We agree that the trial court erred in failing to enter a written order conforming to the court’s oral pronouncement. See Gallardo v. Gallardo, 593 So.2d 522 (Fla. 3d DCA 1991). Accordingly, we remand to the trial court to conform the written judgment to the court’s oral pronouncements.

Affirmed and remanded with instructions.


text:
    Paul PRIDGEON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1003.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2004.
    Rehearing Denied Dec. 8, 2004.
    Appellant pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We are constrained to affirm this appeal from summary denial of a motion seeking postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 because the motion was not sworn. See Anderson v. State, 627 So.2d 1170 (Fla.1993). However, because appellant requested leave in the trial court to remedy this deficiency, which was denied, our affirmance is without prejudice to appellant’s right to file in the trial court an amended motion which is properly sworn to within 30 days of the date on which this court’s mandate issues. See Hickey v. State, 763 So.2d 1213 (Fla. 1st DCA 2000).

AFFIRMED.

WOLF, C.J.; WEBSTER and HAWKES, JJ., concur.


text:
    Loring S. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3838.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2004.
    Loring S. Jones, pro se, petitioner.
    Charlie Crist, Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of counsel is dismissed as moot.

ERVIN, PADOVANO and LEWIS, JJ., concur.


text:
    Alfred P. PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3997.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Alfred P. Perry, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004).

WARNER, HAZOURI and MAY, JJ., concur.


text:
    Willie Lee BIVINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3031.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    Petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the petitioner’s notice of appeal as a petition for certiorari and deny the petition. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

BOOTH, VAN NORTWICK and PADOVANO, JJ., concur.


text:
    Lenair A. HENRIQUEZ, Petitioner, v. James V. CROSBY, Jr., Respondent.
    No. 1D04-3501.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.

      Lenair A. Henriquez, pro se, petitioner.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

As this court has granted a motion to enforce the mandate filed in Henriquez v. Crosby, 872 So.2d 450 (Fla. 1st DCA 2004) , the petition for writ of certiorari is denied. The cross-petition for writ of cer-tiorari is hereby dismissed pursuant to Florida Rule of Appellate Procedure 9.350(b).

ERVIN, PADOVANO and LEWIS, JJ., concur.


text:
    Andre Devon JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-4407.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    er. Andre Devon Johnson, pro se, petition-
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus and motion for leave to file belated appeal, filed October 5, 2004, are hereby treated as a petition seeking belated appeal of the trial court’s order denying the motion to correct sentencing error dated August 9, 2004. The petition is denied. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

ERVIN, PADOVANO and LEWIS, JJ., concur.


text:
    Antonio KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-3056.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003). .

BOOTH, VAN NORTWICK and PADOVANO, JJ., concur.


author: TORPY, J.

text:
    VOLUSIA CITIZENS’ ALLIANCE, etc., Appellant, v. VOLUSIA HOME BUILDERS ASSOCIATION, INC., et al., Appellee.
    No. 5D04-3231.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2004.
    Lesley Blackner of Blackner, Stone Assoc., Palm Beach, for Appellant.
    C. Allen Watts of Cobb Cole, DeLand, for Appellee.
   TORPY, J.

The issue here is whether a proposed amendment to the Volusia County Charter comports with section 101.161(1), Florida Statutes (2004). Among the requirements of that section is that the amendment’s proponent provide an unambiguous, explanatory summary of the substance of the proposal for inclusion on the ballot. The lower court ruled that the proposal at issue here violates the statute. We agree and affirm.

The summary and full text of the proposed amendment state:

BALLOT TITLE:
AN AMENDMENT TO ADOPT AN URBAN GROWTH BOUNDARY AND INCORPORATE WITHIN THE COUNTY’S COMPREHENSIVE PLAN.
BALLOT SUMMARY:
The establishment, implementation and enforcement of a[sic] Urban Growth Boundary (UGB) benefits Volusia County’s natural resources, scenic beauty, orderly development and the welfare of its citizens. The UGB shall be incorporated into a Future Land Use Map and comprehensive plan amendment, which shall include methods of implementation, enforcement, and review in accordance with general law. The UGB shall apply to all the incorporated and unincorporated areas of Volusia County. Provides definition.
FULL TEXT OF PROPOSED AMENDMENT: Article II, Powers And Duties Of the County of Volusia shall be amended to add the following as Section 202.5:
SECTION 202.5: Urban Growth Boundaries.
The council, after preparation by its local planning agency, notice and public hearings, shall promptly establish an Urban Growth Boundary (UGB) on the Future Land Use Map as part of the Future Land Use Element of the Volu-sia County comprehensive plan, which shall be subject to review under 163.3191 Florida Statutes, in accordance with general law. The UGB shall apply to and be enforced in all incorporated and unincorporated areas of the County. The council shall implement the UGB through local planning agreements with all municipalities within Volusia County. The UGB shall be a primary method of accomplishing County goals and policies concerning compact urban growth, the economical and efficient provision of public services, and the protection of environmental resources from destruction, and any other such standards as the council determines to be necessary for the protection of the public health, safety, and welfare of the citizens throughout Volusia County. If any part of this section is declared to be invalid, the remainder of the section shall be considered as separate and severable and shall remain in full force and effect. This amendment shall take effect immediately upon approval by voters, and filing of a copy of the revised Volusia County Charter, incorporating said amendment, with the Florida Department of State. For purposes of this Section, UGB means an area designated for future urban growth and public services, and for possible future municipal incorporation.

Section 101.161(1) requires that the ballot summary not exceed 75 words and “state in clear and unambiguous language the chief purpose of the measure.” Askew v. Firestone, 421 So.2d 151, 154-55 (Fla.1982). The purpose of this requirement is to provide voters with fair notice of the contents of the proposed initiative so that voters will not be misled as to its purpose. Advisory Op. to Att’y Gen. re Pub. Prot. from Repeated Med. Malpractice, 880 So.2d 667, 671 (Fla.2004). It is neither necessary nor practicable, however, that the summary explain every detail or ramification of the proposed amendment. Id.

Here, the ballot summary does not comply with the statute. The first sentence of the ballot summary is not descriptive of the contents of the amendment and amounts to mere “political rhetoric,” the inclusion of which violates section 101.161(1). Advisory Op. to Att’y Gen. re Additional Homestead Tax Exemption, 880 So.2d 646, 653 (Fla.2004); In re Advisory Op. to Att’y Gen. — Save Our Everglades, 636 So.2d 1336, 1341-2 (Fla.1994). As stated by our high court:

[T]he ballot summary is no place for subjective evaluation of special impact. The ballot summary should tell the voter the legal effect of the amendment and no more. The political motivation behind a given change must be propounded outside the voting booth.

Evans v. Firestone, 457 So.2d 1351, 1355 (Fla.1984).

As to the remainder of the summary, although descriptive of parts of the amendment, it excludes material elements of the amendment and, thus, does not give fair notice of the content of the amendment. Advisory Op. to Att’y Gen. re Term Limits Pledge, 718 So.2d 798, 803 (Fla.1998). For example, the summary makes no mention of the fact that it is the function of the council, after public hearings, to draw the boundary and that its implementation in municipalities shall be done through local planning agreements. Voters should have been informed in the ballot summary that their decision to “establish, implement and enforce” an Urban Growth Boundary would not be self-executing, but instead would be subject to the political processes of local governments.

Having held that the ballot summary does not comport with the dictates of the statute, we find it unnecessary to address the other issues raised by the parties in this expedited appeal.

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.


author: SAWAYA, C.J.

text:
    J.L.F., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3278.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2004.
    James B. Gibson, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

J.L.F., a juvenile, appeals the order adjudicating him delinquent for possession of a counterfeit controlled substance with intent to sell in violation of section 831.31(l)(a), Florida Statutes (2001). J.L.F. contends that because the State failed to present sufficient evidence to sustain the conviction, the trial court erred in denying his motion for judgment of acquittal. We agree.

The specific issue we must resolve is whether an individual may be convicted of possession of a counterfeit controlled substance with intent to sell merely by possessing a package containing the substance. We hold that unless the package contains a false label identifying the substance as a controlled substance, or the defendant falsely identifies the substance as a controlled substance, a conviction for possession of a counterfeit controlled substance with intent to sell or deliver may not be obtained under section 831.31. We therefore reverse the orders of delinquency and committal. We will explain our decision by discussing the facts revealed by the evidence presented at trial, followed by legal analysis of the pertinent statutory requirements that must be met in order to obtain a conviction for this offense.

While on routine patrol, two police officers saw J.L.F. and two others standing near the side of a road. Although they did not observe any drug transactions and did not recognize the individuals, the officers decided to initiate a consensual encounter. While conversing with J.L.F., one of the officers noticed that J.L.F. was chewing something that, based on the officer’s experience, looked like crack cocaine. The officer asked J.L.F. to spit the substance from his mouth. When J.L.F. complied, the officer observed what appeared to be two rocks of crack cocaine contained in what the officer described as “cough drop-type wrappers” plus several loose rocks. The officer testified that the rocks were “packaged similar — in the manner in which crack cocaine is packaged, as for sales or distribution.” J.L.F. was arrested and the officer field-tested the confiscated substance. The test revealed that the substance was not cocaine. After these facts were presented to the jury by the State, the State rested, and J.L.F. made a motion for judgment of acquittal arguing that the evidence was insufficient to prove the crime of possession of a counterfeit controlled substance with intent to sell under section 831.31, Florida Statutes. The trial court denied the motion.

“The purpose of a motion for judgment of acquittal is to test the legal sufficiency of the evidence presented by the state.” Espiet v. State, 797 So.2d 598, 601 (Fla. 5th DCA 2001) (citation omitted). If the evidence viewed in the light most favorable to the state does not establish a prima facie case of guilt, the motion must be granted. Espiet. The appropriate standard of review to determine whether error occurred in denying a motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); Sutton v. State, 834 So.2d 332 (Fla. 5th DCA 2003).

To determine whether the evidence presented by the State is legally sufficient to establish a prima facie case of guilt against J.L.F., we must look to the statutory elements of the offense. Specifically, section 831.31 makes it a crime to “possess with intent to sell ... a counterfeit controlled substance.” § 831.31(1), Fla. Stat. (2001). A “counterfeit controlled substance” is defined in section 831.31(2) as follows:

(a) A controlled substance named or described in s. 893.03 which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, or number, or any likeness thereof, of a manufacturer other than the person who in fact manufactured the controlled substance; or
(b) Any substance which is falsely identified as a controlled substance named or described in s. 893.03

This statute is clear and unambiguous and, therefore, we need not resort to the established rules of statutory construction to discern its meaning. Clearly, this statute requires that a defendant either place the substance in a container with a false label that identifies the substance as a controlled substance, falsely label the substance itself, or falsely identify the substance to another. See Damen v. State, 793 So.2d 106, 109 (Fla. 2d DCA 2001) (“[P]ackaging the items to look like crack cocaine did not constitute the necessary false identification of the substance.”); Durr v. State, 583 So.2d 424 (Fla. 1st DCA 1991) (holding that the defendant’s possession of a clear plastic bag containing twelve rocks of what appeared to be cocaine, but was not, did not support a conviction for possession of a counterfeit substance with intent to distribute); Adderly v. State, 571 So.2d 557 (Fla. 1st DCA 1990) (holding that placing fake crack cocaine in a nondescript, unmarked and unlabeled plastic bag was not sufficient to establish the act of mislabeling under section 831.31).

After considering the evidence in the light most favorable to the State, we conclude that the State failed to present any evidence that the substance recovered from J.L.F. was placed in a container or wrapping that mislabeled the substance as cocaine or that J.L.F. falsely identified the substance to another as cocaine. Because the State failed to present legally sufficient evidence to establish the elements of the crime of possession of a counterfeit controlled substance with intent to sell in violation of section 831.31, the trial court erred in denying J.L.F.’s motion for judgment of acquittal.

Accordingly, we reverse the order of delinquency and the order of committal. We remand this case to the trial court with instructions to discharge J.L.F.

REVERSED and REMANDED.

SHARP, W. and GRIFFIN, JJ., concur.

      . We reject the State's argument that J.L.F. failed to properly preserve his corpus delicti argument for review. The record clearly reveals that an objection was properly made in the trial proceedings to the introduction of the inculpatory statements made by J.L.F. to the officers based on corpus delicti principles.


text:
    John REYNOLDS, Appellant, v. SKAGFIELD CORP., d/b/a Skandia Liberty Mutual, Appellee.
    No. 1D03-3112.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2004.
    Patrick John McGinley, Esquire, Winter Park; Bill McCabe, Esquire, Longwood, for Appellant.
    Mary L. Wakeman, Esquire, McCon-naughhay, Duffy, Coonrod, Pope & Weaver, P. A., Tallahassee, for Appellee.
   PER CURIAM.

Claimant John Reynolds appeals the order of the Judge of Compensation Claims (JCC), arguing that the JCC erred in determining the compensability of claimant’s back condition and that there was no competent substantial evidence to support the JCC’s determination that the Claimant was not entitled to temporary partial disability benefits and attorney’s fees. We agree, and the employer/carrier concede, that the JCC improperly determined the compensability of claimant’s back condition because the issue was not before the JCC. See S.E. Recycling v. Cottongim, 639 So.2d 155, 157 (Fla. 1st DCA 1994). We, therefore, reverse the JCC’s order as to this finding. We affirm the JCC’s order in all other respects without further comment.

AFFIRMED in part; REVERSED in part.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Harlan REYNOLDS, Appellant, v. Sandra REYNOLDS, Appellee.
    No. 2D04-1458.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 2004.
    Brett R. Rahall of Rahall & Schaffer, P.A., Tampa, for Appellant.
    Maurice M. Feller of Bay Area Legal Services, Inc., New Port Richey, for Ap-pellee.
   PER CURIAM.

Harlan Reynolds appeals the final judgment dissolving his marriage to Sandra Reynolds. We affirm the judgment with the exception of the amount of alimony.

Mr. and Mrs. Reynolds are both approaching retirement age. Although the issue was not well developed at trial, Mrs. Reynolds apparently has significant health issues and already receives Social Security disability benefits. At the time of trial, she was living with her daughter but wished to live independently.

At the time of this divorce, the couple had very limited assets and a modest income. Each of them filed a financial affidavit that contained an extremely conservative disclosure of monthly expenses. It is likely that both of them will experience actual expenses in excess of their estimates during the coming years. In her affidavit, Mrs. Reynolds estimated that her monthly expenses exceeded her disability benefits by less than $150.

The trial court awarded Mrs. Reynolds permanent alimony of $600 per month. This amount obviously exceeds the amount justified by her financial affidavit, but it would not be enough to allow her to achieve her goal of independent living. Although the record may justify an award in excess of $150, the abbreviated trial did not develop evidence supporting an award of $600. Because of Mr. Reynolds’ limited resources, this amount exceeds his ability to pay. It is clear that he could not provide enough support to allow Mrs. Reynolds to live independently for any significant period of time.

Accordingly, we reverse the award in paragraph B of the final judgment and remand for a new determination of alimony.

Reversed and remanded.

ALTENBERND, C.J., and STRINGER and KELLY, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    Randall Paul HUTCHINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-883.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 2004.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Randall Paul Hutchins appeals an order revoking his probation and sentencing him to seven years in prison. There was competent, substantial evidence that Mr. Hutchins violated condition 3 of his order of probation twice, violated condition 7 twice, and violated condition 42 once. However, the evidence did not support the trial court’s finding that Mr. Hutchins had willfully violated condition 38, which directed, “You will at your own expense, participate and successfully complete a sex offender program with therapists specifically trained to treat sex offenders.” See Mitchell v. State, 871 So.2d 1040, 1041-42 (Fla. 2d DCA 2004); Butler v. State, 775 So.2d 320 (Fla. 2d DCA 2000); Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995).

Because the record clearly reflects that the trial court would have revoked Mr. Hutchins’ probation and imposed the seven-year sentence based upon the three supported violations, we affirm the order revoking Mr. Hutchins’ probation but remand for the trial court to strike from the order any reference to Mr. Hutchins’ violating condition 38.

Affirmed in part and remanded.

FULMER and VILLANTI, JJ., Concur.


text:
    Royal MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1032.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2004.
    Marva A. Davis of Marva A. Davis, P.A., Quincy, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED, without prejudice to Miller’s right to file a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel for failing to raise on direct appeal the county court’s failure at trial to renew its offer to appoint counsel. See Traylor v. State, 596 So.2d 957 (Fla.1992); Sproule v. State, 719 So.2d 349 (Fla. 4th DCA 1998); Pall v. State, 632 So.2d 1084 (Fla. 2d DCA 1994).

ERVIN, BARFIELD and KAHN, JJ., concur.


text:
    Howard ROSENBLATT, Appellant, v. Lexyne PAGE and Howard Clyatt, Appellee.
    No. 1D04-2965.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2004.
    N. Albert Bacharach, Gainesville, for Appellant.
    Samuel A. Mutch of Mutch & Yozgat, Gainesville, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 1, 2004, the Court has determined that the order on appeal does not finally determine a right or obligation of an interested party in a probate proceeding, as it does not specifically direct disgorgement of the attorney’s fees paid in excess of the $1,500.00 determined to be reasonable by the order on appeal. Therefore the order is not appealable pursuant to Florida Rule of Appellate Procedure 9.110(a)(2), and the appeal is hereby dismissed for lack of jurisdiction.

ERVIN, BARFIELD, and KAHN, JJ., concur.


text:
    James SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-4352.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2004.
    James Sanders, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(5)(D).

ERVIN, BARFIELD and KAHN, JJ., concur.


author: CANADY, Judge.

text:
    Scott FRY, Appellant, v. Leigh Ann FRY, Appellee.
    No. 2D04-280.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2004.
    James R. Kramer, Tampa, for Appellant.
    Thomas P. Gill, Jr., of Thomas P. Gill, Jr., P.L., Brandon, for Appellee.
   CANADY, Judge.

Scott Fry, the former husband, appeals the portion of a final judgment of dissolution of marriage awarding child care costs to Leigh Ann Fry, the former wife. Because we conclude that the judgment was inappropriately entered by a judge who did not preside over the trial proceedings, we reverse.

Background

In this case, one judge presided over the pretrial proceedings and entered the final judgment, while another judge conducted the evidentiary hearing giving rise to this appeal. After the parties entered into a marital settlement agreement resolving all issues except the issue regarding child care costs claimed by Ms. Fry, the eviden-tiary hearing concerning that issue was conducted before Judge Daniel E. Gallagher, who entered the final judgment.

At the evidentiary hearing, Mr. Fry contended that the child care costs claimed by Ms. Fry were a “sham.” These costs allegedly arose from an arrangement Ms. Fry made with her father to compensate him for the care of the Frys’ two school-age children during periods when the children were not at school and Ms. Fry was herself at work or school and unavailable to care for the children. Ms. Fry contended that there was no basis to deny the claimed child care expense under the applicable statutory provision, section 61.30(7), Florida Statutes (2003). Mr. Fry’s claim of a sham arrangement was based on the circumstances that Ms. Fry and the children resided in the same household with Ms. Fry’s father and mother and the absence of evidence establishing that Ms. Fry fully reimbursed her parents for her share of the living expenses of the household.

When the evidentiary hearing concluded, Judge Gallagher refrained from ruling on the child care cost issue and instructed counsel for the parties to submit proposed orders for his consideration. A proposed order was submitted by counsel for Mr. Fry. Counsel for Ms. Fry objected to the proposed order. In a letter to counsel for the parties, Judge Gallagher noted that he “was sitting for Judge Timmerman on a very limited basis.” He also stated that if Judge Timmerman granted relief with respect to a then-pending motion for temporary suit money Judge Timmerman “might as well rule on the Final Judgment since he will have the transcript to review.” Judge Gallagher went on to state that “if [Judge Timmerman] denies the [pending] motion and [counsel for Ms. Fry] does not obtain a transcript, then I am prepared to rule based on the notes I have taken.” In response, counsel for Mr. Fry sent a letter to Judges Gallagher and Timmerman which stated, in pertinent part: “I feel that since Judge Gallagher heard the ... final hearing, saw the demeanor of the parties and witnesses, he should make the decision and enter the Final Judgment.” Ultimately, Judge Timmerman entered the final judgment containing a provision awarding Ms. Fry the child care costs she sought. It appears that Judge Timmer-man based his decision on a review of the transcript of the evidentiary hearing.

Issues on Appeal

On appeal, Mr. Fry raises a substantive point concerning the ruling on the child care expenses and a procedural point concerning entry of the judgment by Judge Timmerman. The procedural point urged by Mr. Fry is that “the judge who heard the final hearing should have decided whether the day care expense sought was allowable or a sham.” In response to this point, Ms. Fry argues that the entry of judgment by a judge who did not preside over the final hearing was not error “where the only issue the parties disputed was purely an issue of law,” In view of our conclusion with respect to this procedural point raised-by Mr. Fry, we need not consider the substantive point he has presented.

Analysis

In Bradford v. Foundation & Marine Construction Co., 182 So.2d 447, 449 (Fla. 2d DCA 1966), where the trial proceedings had been conducted before a judge without a jury, we “adopt[ed] the rule that where oral testimony is produced at trial and the cause is left undetermined, the successor judge cannot render verdict or judgment without a trial de novo, unless upon the record by stipulation of the parties.” We did so because we concluded that “[t]he absence of [an] opportunity” for ■ a trial judge — as trier-of-fact — “to personally hear the witnesses and observe their demeanor in the act of testifying ... leaves a gap in the proper procedure of trial.” Id.; see also In re N.C., 884 So.2d 189 (Fla. 2d DCA 2002); Smith v. Smith, 612 So.2d 718 (Fla. 2d DCA 1993); Reaves v. Reaves, 546 So.2d 744 (Fla. 2d DCA 1989); Paragon Group, Inc. v. Hoeksema, 475 So.2d 244 (Fla. 2d DCA 1985); Tompkins Land & Housing, Inc. v. White, 431 So.2d 259 (Fla. 2d DCA 1983); Umscheid v. Umscheid, 724 So.2d 1267 (Fla. 5th DCA 1999); Alvord v. Alvord, 572 So.2d 925 (Fla. 3d DCA 1990); Dash v. Dash, 306 So.2d 543 (Fla. 3d DCA-1974).

In Bradford, 182 So.2d at 449 (citing 48 C.J.S.. Judges § 56a (1947)), we did acknowledge that “[i]t is generally stated that a-successor judge may complete any acts uncompleted by his predecessor where they do not require the successor to weigh and compare testimony.” Contending that the question at issue in the present case was “purely an issue of law,” Ms. Fry invokes this statement in Bradford to justify the entry of the judgment by the successor judge. Mr. Fry contends that the principle is inapplicable here because factual questions were at issue.

We agree with Mr. Fry that this is not a case in which the judge decided a purely legal issue. At the evidentiary hearing, Mr. Fry sought to establish that-in the context of Ms. Fry’s living in her parents’ household-the arrangement for compensation of Ms. Fry’s father was a sham. The question of whether a sham arrangement existed is inherently a factual issue involving the credibility of the witnesses who testified. In deciding- whether the arrangement for compensation of Ms. Fry’s father was a sham, the trial court was necessarily required to “weigh and compare testimony.” Id.

In the absence of a stipulation by the parties, the entry of a judgment by a successor judge in such circumstances is not permitted. Here, there was no stipulation authorizing the entry of judgment by Judge Timmerman. Indeed, counsel for Mr. Fry specifically stated to the court that Judge Gallagher “should make the decision and enter the Final Judgment.”

Conclusion

Accordingly, we conclude that the entry of the judgment by Judge Timmerman was not appropriate. In reaching this conclusion, we express no view on the substantive merit of the trial court’s ruling relating to the child care expenses.

The judgment is reversed, and -the case is remanded for entry of a judgment by Judge Gallagher. In the event that a judgment is not entered by Judge Gallagher, it will be necessary for a new evi-dentiary hearing to be conducted on the disputed issue unless the parties enter a stipulation permitting decision of the matter by a successor judge.

Reversed and remanded with instructions.

WHATLEY and NORTHCUTT, JJ., Concur.

      . Section 61.30(7) provides:
      Child care costs incurred on behalf of the children due to employment, job search, or education calculated to result in employment or to enhance income of current employment of either parent shall be reduced by 25 percent and then shall be added to the basic obligation. After the adjusted child care costs are added to the basic obligation, any moneys prepaid by the noncustodial parent for child care costs for the child or children of this action shall be deducted from that noncustodial parent's child support obligation for that child or those children. Child care costs shall not exceed the level required to provide quality care from a licensed source for the children.


text:
    The STATE of Florida, Appellant, v. D.E.R., a juvenile, Appellee.
    No. 3D04-922.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2004.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Based upon our conclusion that the record evidence fully supports the trial court’s finding that the police lacked reasonable suspicion to conduct a pat down search of the appellee/juvenile, we affirm the order granting the motion to suppress. See Ray v. State, 849 So.2d 1222 (Fla. 4th DCA 2003); Coleman v. State, 723 So.2d 387 (Fla. 2d DCA 1999); E.H. v. State, 593 So.2d 243 (Fla. 5th DCA 1991).

Affirmed.


text:
    Michael SAMUEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3693.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2004.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

STONE, WARNER and GROSS, JJ., concur.


author: CASANUEVA, Judge.

text:
    Lynda TAPP, Appellant, v. Kenneth W. TAPP, Appellee.
    No. 2D03-4789.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2004.

      Valeria Hendricks of Davis & Harmon, P.A., Tampa, and Mark Kelly of Lopez & Kelly, P.A., Tampa, for Appellant.
    C. Cole Jeffries Jr., of Curry & Associates, P.A., Brandon, and Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellee.
   CASANUEVA, Judge.

In this postdissolution action, the former wife, Lynda Tapp, appeals the dismissal of her petition for modification of alimony. We agree with her contention that the trial court misinterpreted the language of the settlement agreement and reverse.

The final judgment of dissolution, entered in 2000, incorporated the terms of a settlement agreement that the parties had negotiated with advice of counsel. The paragraph at issue concerns alimony and provides:

8. Alimony. The Court awards to the Wife permanent periodic alimony until the remarriage of the Wife or the death of either party. However, if appropriate motions are filed regarding the competency of the Wife at the time of the remarriage of the Wife, the Court will reserve jurisdiction to examine and address the issue at that time. Commencing November 15, 1999, the Husband shall pay directly to the Wife the sum of One Thousand Seven Hundred Fifty Dollars ($1,750.00) per month as permanent periodic alimony, but this amount shall be reduced on a dollar-for-dollar basis for each dollar the Wife receives from retirement accounts of Kenneth W. Tapp, or when she begins drawing social security or for other retirement like payments. Following entry of the Final Judgment, all support payments shall be made payable through the Central Government Depository/ State Disbursement Unit, Tallahassee, Florida through an Income Deduction Order. Furthermore, as agreed between the Parties, the earliest the Wife would begin drawing said retirement payment would be at the age of 62. The Parties further agreed that they will not have to come back to Court to litigate a modification of this Final Judgment as a result of this provision for an automatic dollar-for-dollar reduction, except for enforcement.

In 2003, the former wife filed an amended supplemental petition for modification of the final judgment of dissolution seeking an increase in her alimony. She claimed that since the divorce she had developed certain medical problems, that these problems had resulted in unforeseen expenses, and that the former husband’s earnings had increased, enabling him to pay her additional alimony. The former husband filed a motion to dismiss her petition, arguing that paragraph eight of the settlement agreement precluded modification of alimony except as to the predetermined dollar-for-dollar reduction for receipt of future retirement benefits.

The trial court agreed with the former husband’s argument and dismissed the petition with the following specific finding:

Paragraph 8 of the Amended Final Judgment of Dissolution of Marriage constitutes a waiver of the right to modify alimony and is therefore non-modifiable. It was the parties’ intent, as stated in the last sentence of the paragraph, that the parties would only return to the Court to litigate the issue of alimony for the sole purpose of enforcement of the provisions of that entire paragraph regarding alimony. The court found Agliano v. Agliano [, 605 So.2d 597 (Fla. 2d DCA 1992),] helpful and persuasive along with several other cases provided to the Court by counsel for the Former Husband.

Because the trial court’s decision was based on its interpretation of a eontraet-the settlement agreement incorporated into the dissolution judgment-we review this matter de novo. Johnson v. Johnson, 848 So.2d 1272 (Fla. 2d DCA 2003). We hold that the trial court erred as a matter of law by concluding that the last sentence of paragraph eight constituted a clear and unequivocal waiver of the former wife’s right to seek any modification of alimony.

Parties to a marriage may waive their statutory right to seek modification of alimony provisions in a settlement agreement if the language in the agreement clearly and unambiguously expresses waiver or if the “interpretation of the agreement as a whole can lead to no other conclusion but waiver.” Sasnett v. Sasnett, 683 So.2d 177, 178 (Fla. 2d DCA 1996). To the extent that the last sentence of paragraph eight leads to “no other conclusion but waiver,” it is limited to the implementation of the provision for automatic dollar-for-dollar reduction in alimony.

The trial court’s ruling ignored the restrictive nature of the key phrase in the last sentence: “as a result of this provision for an automatic dollar-for-dollar reduction.” That phrase modifies the language expressing the agreement of the parties to “not have to come back to Court to litigate a modification” and limits their waiver of the right to modify to the automatic dollar-for-dollar reduction provision. Otherwise, if the parties’ intent had been to waive their rights to litigate the issue of alimony in every respect, the phrase would be superfluous and meaningless. Instead, the parties clearly agreed not to require a return to court to reduce the former husband’s alimony payments when the former wife begins receiving retirement benefits or social security payments that will reduce or replace her alimony. The parties have defined the amount of a future reduction in alimony based on an expected event and have agreed that court involvement will not be necessary to make this future change, but the parties may resort to the court to enforce this defined future modification after it takes effect. Essentially, the modification of alimony due to receipt of retirement benefits will be self-executing, and the parties thus agreed to remove one possible basis of future litigation.

In its order, the trial court relied on Agliano, 605 So.2d 597, a case in which we found that the language in the settlement agreement clearly expressed a waiver. Agliano is distinguishable because the settlement agreement unambiguously described the pax-ties’ irrevocable waiver of any and all modifications of any type of alimony. Here, however, the language of paragraph eight of the settlement agreement does not express a similar unambiguous and irrevocable intent to waive all future modifications. In fact, the potential for modification of alimony is anticipated by other language in paragraph eight. For example, the second sentence of the paragraph states that “if appropriate motions are filed regarding the competency of the Wife at the time of the remarriage of the Wife, the Court will reserve jurisdiction to examine and address the issue at that time.” This suggests that the parties intended that alimony could be modified for reasons other than receipt of future retirement payments.

We reverse the final judgment of dismissal and remand for reinstatement of the former wife’s petition and further proceedings.

SALCINES, J., and GREEN, OLIVER L., Senior Judge, Concur.

      . In Agliano v. Agliano, 605 So.2d 597, 598 (Fla. 2d DCA 1992), we found the following language to be an unambiguous expression of waiver:
      Both parties irrevocably waive any and all modification entitlement respecting the rehabilitative and lump sum alimony benefits ..., and agree that said rehabilitative and lump sum benefits shall be non-modifiable by either party during the term of said payments, or thereafter, and the parties hereby specifically agree that this is an irrevocable waiver of any and all right to subsequently petition the court for any modification of alimony, whether rehabilitative, lump sum or otherwise....


text:
    Darrel RANEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5892.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2004.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Darrel Raney may have to seek appropriate postconviction relief.

ALTENBERND, C.J., and CASANUEVA and KELLY, JJ., Concur.


text:
    ACI WORLDWIDE MEXICO, INC., Appellant, v. PLUS TECNOLOGIA, S.A. de C.V. d/b/a Verichek, d/b/a Brass, Appellee.
    No. 2D04-2440.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2004.

      Thomas H. McLain, Jr., of Fisher & Sauls, P.A., St. Petersburg, for Appellant.
    Joel D. Eaton of Podhurst Orseck, P.A., Miami, and The Middleton Firm, LLC, Savannah, Georgia, and Cunningham Law Group, Tampa, for Appellee.
   WHATLEY, Judge.

ACI Worldwide Mexico, Inc. (ACIWM) appeals the order denying its motion to dismiss Plus Tecnologia’s complaint against it for lack of personal jurisdiction. We reverse.

We review the issue of jurisdiction over a foreign corporation de novo. Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80 (Fla. 2d DCA 2003).

If ACIWM was part of a joint venture with its sister Florida subsidiary that contracted with Plus Tecnología to provide the check verification system, then Florida could properly exercise jurisdiction over it. However, in the face of irreconcilable affidavits filed by both parties in support of their respective positions on jurisdiction, the trial court was obligated to hold an evidentiary hearing and make a determination regarding jurisdiction. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989) (holding that where affidavits cannot be reconciled, “the trial court will have to hold a limited evidentiary hearing in order to determine the jurisdiction issue.”). The trial court in this case held a hearing, but it was a nonevidentiary hearing. >

Accordingly, we reverse and remand for an evidentiary hearing on the issue of the Florida court’s jurisdiction over ACIWM, a Mexican corporation.

Reversed and remanded with directions.

SALCINES and DAVIS, JJ., concur.


text:
    Steven FLOWERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2410.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2004.
    Steven Flowers, in proper person.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Because the petitioner challenges his conviction and sentence imposed by the Seventeenth Circuit, that court has proper jurisdiction to review the matter. We therefore remand the order under review to the Eleventh Judicial Circuit with instructions to transfer it to the Seventeenth Judicial Circuit.

Remanded with instructions.


author: 11 JOHNSON, J.,

text:
    STATE of Louisiana v. Michael MOSLEY.
    No. 2004-KO-1400.
    Supreme Court of Louisiana.
    Nov. 8, 2004.
   In re Mosley, Michael; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, Nos. 433-075; to the Court of Appeal, Fourth Circuit, No. 2003-KA-1947.

Prior report: La.App., 872 So.2d 1220.

Writ denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ and assigns reasons.

WEIMER, J., would grant the writ and concurs in the reasons assigned by JOHNSON, J.

11 JOHNSON, J.,

would grant the writ application for the following reasons.

The decision of the court of appeal should be reversed and the case remanded to the district court to consider the claims raised in the motion to reconsider sentence on the merits.

This Court has not required a defendant to file a second motion to reconsider sentence under circumstances in which, after the trial court denied a motion to reconsider the defendant’s original sentence, the state filed an habitual offender bill under La.R.S. 15:529.1, and the court re-sentenced the defendant as a multiple offender to the same or a greater term of imprisonment. State v. Krogh, 614 So.2d 367 (La.App. 4 Cir.), remanded, 620 So.2d 1324 (La.1993). In this situation, the defendant’s complaint about his first sentence logically applies to his second sentence. See also State v. Charles, 626 So.2d 404, 406 (La.App. 4 Cir.1993) (the Krogh rule applies when the trial court reimposes the same sentence originally imposed and vacated after the court re-sentences the defendant as an habitual offender).


author: h CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Christopher GAGE.
    No. 2004-K-0606.
    Supreme Court of Louisiana.
    Nov. 8, 2004.
   In re Gage, Christopher; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, Nos. 303,250; to the Court of Appeal, First Circuit, No. 2003 KW 2181.

Writ denied.

WEIMER, J., recused.

CALOGERO, C.J., would grant the writ and assigns reasons.

h CALOGERO, Chief Justice,

granting writ.

I would grant the writ application to reverse the defendant’s conviction and sentence and remand this case to the district court for a new trial.

Contrary to the trial court’s finding, I believe that a meaningful retrospective competency hearing cannot be held in the instant case, wherein no psychiatrists examined the defendant before the trial with regard to his competency to proceed, despite the appointment of a sanity commission. Because contemporaneous records do not exist, the trial court’s proposed efforts — to reconstruct the record based solely on the possibility that defendant’s prior trial counsel and a defense expert might offer some insight into defendant’s mental state at trial — fall short of establishing that a nunc pro tunc determination of defendant’s competency is possible. Cf. State v. Snyder, 98-1078, p. 31 (La.4/14/99), 750 So.2d 832, 855 (“A 'meaningful’ determination is possible 'where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant’s condition at the time of the original ... proceedings.’ ”).

Moreover, the instant case presents a situation which by the terms of State v. Nomey, 613 So.2d 157 (La.1993), requires reversal without the possibility of any 19nunc pro tunc hearing: the defendant raised the issue of competence before trial, the judge agreed with the need for a determination, and no determination was made. Under similar circumstances, this court in Nomey deemed outright reversal of the defendant’s conviction and sentence appropriate to effectuate Louisiana’s “ ‘anticipatory, protective procedures’ ” designed to minimize the risk that an incompetent person will be convicted in violation of the Due Process Clause. Nomey, 613 So.2d at 161 (quoting Medina v. California, 505 U.S. 437, 458, 112 S.Ct. 2572, 2584, 129 L.Ed.2d 353 (1992)(Blackmun, J., dissenting)). Nomey therefore generally reserves nunc pro tunc competency heqr-ings to cases in which “a meaningful inquiry into defendant’s competence can still be had” and in which “the trial judge ignores a bona fide doubt as to defendant’s competence to stand trial, or the issue of competence is not raised at trial.” Nomey, 613 So.2d at 161, n. 8. This court’s decision in Snyder, in which it remanded the case for determination of whether a nunc pro tunc determination of competency was possible, and in which that determination was ultimately made, did not depart from the No-mey rule because “it [was] the trial court’s absolute failure to investigate these [renewed] claims [of incapacity], which were substantiated by objective medical evidence, that cause[d] us to determine he abused his discretion in failing to investigate defense claims of incompetence.” See State v. Snyder, 98-1078, p. 26 (La.4/14/04), 874 So.2d 739, 743.

Furthermore, in State ex rel. Seals v. State, 00-2738, pp. 8-9 (La.10/25/02), 831 So.2d 828, 834-835, this court reversed the defendant’s conviction and sentence because the trial court failed to resolve the question of the defendant’s competence after ordering a mental examination and because the evidence on the record was too scant to make a meaningful nunc pro tunc determination of mental competency. Similarly, because the trial judge in the present case appointed a sanity commission, |3and thereby found that reasonable grounds existed to doubt the defendant’s competency to proceed, La.Code Crim. Proc. art. 643, but then failed to resolve the question before trial, Nomey requires reversal of the defendant’s convictions and sentences.


author: |,PER CURIAM.

text:
    In re Kent Anthony SMITH.
    No. 2004-B-1918.
    Supreme Court of Louisiana.
    Nov. 15, 2004.

      . In his testimony, Mr. Williams admitted he had misunderstood the scope of respondent’s representation, the fee arrangement, and respondent's status reports. He also reiterated his wish to retract the complaint. Mr. Williams further stated that his anger at and impatience with the defendants in the lawsuit had him "lashing out" at respondent.
      Respondent testified that the $600 was a flat fee only for preparation of Mr. Williams' lawsuit. He asserted that this preparation involved approximately eight hours of work (review of Mr. Williams’ file and paperwork, phones calls to verify facts, and legal research) but admitted that he did not keep written records of his time.
      Respondent also apologized several times for his failure to cooperate with the ODC in its investigation. He admitted to this misconduct and took full responsibility but claimed that he did not provide a written response to the complaint because Mr. Williams led him to believe he was going to withdraw the complaint. He further admitted that he was afraid of the ODC and went into a procrastination mode, hoping the complaint would just go away. Furthermore, respondent stated that when he found out the ODC was trying to serve him with a subpoena, he cooperated so that he could be served. However, he claimed that he honestly forgot about the sworn statement. He stated that he does not have a secretary and implied that he was overwhelmed with trying to work and keep track of everything.

   ATTORNEY DISCIPLINARY PROCEEDINGS

|,PER CURIAM.

This disciplinary matter arises from one set of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kent Anthony Smith, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Count I — The Williams Matter

On December 26, 2002, respondent agreed to handle a breach of contract matter for Reginald Williams. Mr. Williams paid respondent $600 on December 27, 2002. Respondent provided Mr. Williams with a receipt with a note that indicated the $600 was for “Suit Prep.” Neither a written fee agreement nor a written employment contract, documenting the scope of respondent’s representation, were negotiated.

During January 2003, Mr. Williams contacted respondent several times to check on the status of his lawsuit. Under the impression that respondent had prepared and filed the lawsuit, Mr. Williams asked for a date-stamped copy. When respondent did not comply, Mr. Williams sent him a letter requesting either the date-stamped copy or a full refund. On February 7, 2003, Mr. Williams went to respondent’s office to pick up a copy of his lawsuit. Once there, he learned that respondent was just then completing it and had not yet filed it. Furthermore, respondent prepared the lawsuit [¡Jo be filed by Mr. Williams in Proper Person. Thereafter, Mr. Williams filed the lawsuit with the court and paid the court costs himself.

On February 13, 2003, Mr. Williams filed a complaint against respondent with the ODC. He alleged that respondent lied to him about filing the suit and only complied with his request for a copy of the suit after numerous phone calls.

Mr. Williams also gave a sworn statement to the ODC on July 17, 2003. He stated that respondent told him the $600 fee was for preparing and filing the lawsuit, $400 for preparing it and $200 for the filing fee. Mr. Williams further stated that he thought respondent would be signing the suit as his attorney of record. Furthermore, when respondent asked him to retract the complaint, Mr. Williams told respondent he would not “unless [respondent] reimbursed me part of the funds for doing such a poor job!”

Count II — The Failure to Cooperate with the ODC Matter

Respondent did not claim the certified mail sent to his primary address regarding this complaint. The certified mail sent to his secondary address was signed for by Kevin Smith, but respondent failed to answer the complaint.

A subpoena was issued for respondent to provide a sworn statement, but the sheriffs office was unable to locate him for service. Another subpoena was issued, and the ODC’s investigator personally served respondent. However, respondent failed to appear for his sworn statement.

DISCIPLINARY PROCEEDINGS

Formal Charges

|sOn September 9, 2003, the ODC filed one set of formal charges against respondent. The ODC alleged respondent’s conduct violated the following Rules of Professional Conduct: Rules 1.2(a)(b) (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.5 (fee arrangements), 1.15(a) (safekeeping property of clients or third persons), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(g) (failure to cooperate with the ODC in its investigation). Respondent answered the formal charges, essentially denying the allegations of misconduct.

Formal Hearing

This matter proceeded to a formal hearing on the merits, which was conducted by the hearing committee on December 10, 2003. Respondent appeared and was represented by counsel, Lee Faulkner, Jr. The ODC was represented by Deputy Disciplinary Counsel Robin Pittman.

The ODC introduced documentary evidence in support of the formal charges. Respondent introduced a letter, written by Mr. Williams to the ODC and dated December 4, 2003, retracting the original complaint. Both respondent and Mr. Williams testified in person before the committee.

I ¿Following testimony, the committee chair ordered both the ODC and respondent to file a post-hearing memorandum regarding an appropriate sanction. The ODC submitted its memorandum and recommended a minimum of a three to six month suspension followed by supervised probation with conditions. Respondent submitted his memorandum and recommended the charges be dismissed or, if dismissal was not possible, a public admonition.

Hearing Committee Recommendation

Considering the evidence presented at the hearing, the hearing committee made the following findings of fact:

1. Mr. Williams admitted that he may have misunderstood the scope of respondent’s representation;

2. Even though respondent indicated on the receipt that the $600 was for suit preparation, Mr. Williams believed that $400 was for attorney’s fees and $200 was for filing fees;

3. Mr. Williams expected only that respondent would prepare and file the lawsuit, anticipating the defendants would pay him once they were served;

4. On December 27, 2002, responded implied that the suit preparation would only take one to two weeks;

5. Mr. Williams called respondent three times in January 2003 but misunderstood respondent’s status report that the “suit was done,” thinking it had been filed and he could get a copy;

|r6. When Mr. Williams went to pick up the lawsuit on February 7, 2003, he learned that it had not been filed and it was prepared for him to file in Proper Person;

7. Mr. Williams timely filed the lawsuit himself and paid the court costs himself;

8. Although Mr. Williams asked respondent to reimburse the unearned portion of the $600 fee, Mr. Williams testified at the hearing that no money was due to him. Therefore, Mr. Williams has never been reimbursed for attorney’s fees or filing costs;

9. This was the first time respondent had been hired by Mr. Williams;

10. Responded failed to cooperate with the ODC when he did not file a response to the complaint or appear for the sworn statement. However, when he realized the complaint was not resolved, he did respond;

11. Respondent has been disciplined in the past;

12. Respondent accepted responsibility for failing to cooperate with the ODC’s investigation; and

13. Mr. Williams was not harmed because of the misunderstandings and short delay in filing the lawsuit.

Based on these facts, the committee found the following violations of the Rules of Professional Conduct: Rules 1.2(a)(b), 1.5(b), 8.4(a), and 8.4(g). The committee did not find clear and convincing evidence to support violations of Rules 1.3, 1.15, and 8.4(c).

The committee determined that respondent limited the scope of his representation beyond Mr. Williams’ understanding of the services to be provided. | fiThe notation on the receipt did not provide adequate information regarding the services nor did it imply Mr. Williams’ consent to the limitation. Likewise, the notation on the receipt did not adequately explain the fee agreement, causing Mr. Williams to again misunderstand. Respondent also failed to cooperate with the ODC in its investigation.

However, since the lawsuit was timely filed within six weeks, the committee determined that respondent did not fail to act with reasonable diligence or promptness. The ODC also did not show that respondent failed to keep safe Mr. Williams’ property. Furthermore, respondent was not dishonest in his status reports to Mr. Williams. Rather, the misunderstandings were due to inadequate communication between respondent and Mr. Williams.

The committee determined that respondent violated duties owed to Ms client and the professional. Respondent’s conduct was negligent because of his “haphazard dealings with his clients,” but it caused no harm to Mr. Williams. The appropriate ABA Standards for Imposing Laioyer Sanctions are Standards 4.42 (suspension for knowingly failing to perform services or engaging in a pattern of neglect), 4.62 (suspension for knowingly deceiving a client), and 7.2 (suspension for knowingly violating a duty owed as a professional).

As aggravating factors, the committee recognized respondent’s prior disciplinary offense, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, and indifference to making restitution. The committee found mitigating factors of absence of a dishonest or selfish motive and inexperience in the practice of law.

Considering the above findings, the committee determined that respondent should receive the baseline sanction of a period of suspension. Therefore, the |7committee recommended that respondent be suspended from the practice of law for a period of one year, fully deferred, subject to one year of supervised probation with several conditions, the most important being additional education on law office management and ethics.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board accepted the hearing committee’s factual findings and agreed with the committee’s application of the Rules of Professional Conduct. Respondent violated duties owed to his client and the profession. His conduct was negligent but caused no harm to Mr. Williams.

The board adopted the committee’s aggravating factors of prior disciplinary offenses, multiple offenses, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. However, the board rejected the committee’s findings of a pattern of misconduct (lack of diligence was not found by the committee to create a pattern with respondent’s prior misconduct), refusal to acknowledge wrongful nature of conduct (respondent apologized several times for not cooperating with the ODC, and his attorney told the committee that respondent understood he needed to do more to adequately communicate with his clients), and indifference to making restitution (respondent went over Mr. Williams’ file with him to show him the work he had done, and Mr. Williams testified at the hearing that he did not expect a refund). The board also adopted the mitigating factors of absence of a dishonest or selfish motive and inexperience in the practice of law found by the committee.

I sTurning to the issue of an appropriate sanction for respondent’s misconduct, the board agreed with the committee that the baseline sanction is suspension under Standards 4.42, 4.62, and 7.2 of the ABA’s Standards for Imposing Lawyer Sanctions. Combining this court’s prior jurisprudence with these standards, the board adopted the sanction suggested by the committee and recommended that respondent be suspended from the practice of law for one year, fully deferred, subject to one year of supervised probation with conditions.

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

DISCUSSION

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

Based on our review of the record, we conclude that the ODC proved by clear and convincing evidence that respondent violated the following Rules of Professional Conduct: Rules 1.2(a)(b), 1.5(b), 8.4(a), 8.4(c), and 8.4(g). Respondent limited the scope of his representation without Mr. Williams’ understanding or consent by not | Jisting himself as the attorney of record, and he did not adequately explain the fee arrangement to Mr. Williams. The record further supports a finding that respondent did not adequately explain his status reports to Mr. Williams, leading to what Mr. Williams initially considered to be dishonesty and misrepresentation. Respondent also failed to cooperate with the ODC’s investigation by not responding to the certified letter or subpoena.

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

While respondent’s misconduct caused no actual harm to Mr. Williams, respondent did violate duties owed to his client and the profession. The aggravating factors present are a prior disciplinary offense, a pattern of misconduct, multiple offenses, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. Also present are the mitigating factors of absence of a dishonest or selfish motive and inexperience in the practice of law.

ImThe baseline sanction for this misconduct is a period of suspension. However, the main cause of respondent’s negligent misconduct was his lack of detail, clarity, and organization in dealing with his clients and running his law office. Therefore, we conclude that a one-year suspension from the practice of law, fully deferred, subject to one year of supervised probation with conditions, is an appropriate sanction.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kent Anthony Smith, Louisiana Bar Roll number 25506, be suspended from the practice of law for one year, fully deferred, subject to one year of supervised probation with conditions. 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.

      . This factual finding is somewhat unclear, but we assume the committee considered respondent's appearance and testimony at the hearing to be his response to the complaint.

      . Respondent was admonished on May 13, 2003 in 03-ADB-005 for his failure to act with reasonable diligence and his failure to adequately communicate with his clients.

      . See In re: DeJean, 01-0150 (La.3/16/01), 782 So.2d 566; In re: Home, 98-2514 (La.11/6/98), 721 So.2d 846; and In re: Phelps, 02-1837 (La.9/30/02), 827 So.2d 1140.

      . The board subtracted the aggravating factor of a pattern of misconduct, but a review of respondent's prior admonition reveals that he failed to adequately communicate with his clients. This is exactly the case in this matter, which clearly establishes a pattern of misconduct. Therefore we have included this factor in aggravation.

      . The conditions are as follows:
      1. Respondent shall respond to all reasonable requests of his probation monitor;
      2. Respondent shall refrain from any violations of the Rules of Professional Conduct;
      3. Respondent shall complete a course in law office management and attend the Louisiana State Bar Association ("LSBA”) Ethics School;
      4. Respondent shall establish and maintain an effective calendering system and method to communicate with clients and shall obtain the assistance of the LSBA's Loss Prevention Counsel, the LSBA’s Practice Assistance Counsel, and his probation monitor in the creation of a proper law office management program;
      5. Respondent shall remain current in the law during his period of probation by satisfying all annual MCLE requirements in a timely fashion, and he shall timely pay his bar dues and the disciplinary assessment; and
      6. Respondent agrees that any violation of any terms or conditions set forth shall result in a summary revocation of probation.


author: hPER CURIAM.

text:
    Sandres J. GUIDRY, et al. v. DWIGHT MANUEL, INC., et al.
    No. 2004-C-2031.
    Supreme Court of Louisiana.
    Nov. 17, 2004.
   hPER CURIAM.

Plaintiffs, Sandres J. Guidry and his wife Cathy, hired Dwight Manuel, Inc. (Manuel) to construct a building to be used as the office and warehouse for their business, Guico Specialty Company, Inc. (Gui-co). Manuel subcontracted Baldwin Redi-Mix (Redi-Mix) and a concrete finisher, Daniel Popillion. Redi-Mix was to deliver concrete of a certain compression strength (3000 psi for the building and 3500 psi for the parking lot). Plaintiffs became dissatisfied with Manuel’s performance and terminated the contract. MPW Construction, Inc. was hired to finish the project. Redi-Mix had already poured the concrete when the change in contractors occurred.

Shortly after completion of the project and occupation of the new ■ building, the concrete started cracking. Plaintiffs had the concrete tested. The tests. revealed the concrete’s strength was approximately 1750 psi. The plaintiffs sued Manuel who third partied Redi-Mix and the concrete finisher, Mr. Popillion. Plaintiffs added a claim against Redi-Mix. The concrete finisher, Mr. Popillion, was never served; therefore, the trial court severed the claim against him. (The jury was asked, to consider whether Mr. Popillion bore any responsibility.)

The parties proceeded to jury trial. Testimony and delivery tickets indicated the concrete was diluted with water at the job site reducing compression strength. The jury found Manuel 100 percent at fault and awarded the Guidrys $67,120 reduced |?by $29,120 for failure to mitigate damages, for a total- award of $38,000. The jury rejected Guico’s claims.

The trial court entered judgment in conformity with the jury verdict in favor of plaintiffs, Sandres J. Guidry and Cathy D. Guidry, and against defendants, Dwight Manuel, Inc. and Maryland Casualty Company, jointly and in solido, for the sum of $38,000 with legal interest from date of judicial demand until paid.

Plaintiffs appealed the dismissal of one of the defendants, the amount of damages awarded, and the jury’s failure.to recognize the claim filed on behalf of the plaintiff company, Guico. Manuel appealed the dismissal of its third party claim against the concrete company.

The court of appeal affirmed the jury’s finding of 100 percent liability on the part of Manuel. The court of appeal also found the record supported the jury’s finding that the concrete supplier did not breach a duty in either contract or tort. Those two findings were affirmed. Guidry v. Dwight Manuel, Inc., 03-1236, pp. 2-5 (La.App. 3 Cir. 7/7/04), 877 So.2d 346, 348-350.

The court of appeal found the jury’s award was “wholly inadequate to compensate” the plaintiffs and, thus, constituted “an abuse of discretion.” Although not contested by any party to the litigation and not raised as an assignment of error in the appellate court, the court of appeal considered a jury charge delivered by the trial court. Finding the charge as given was inadequate and that it affected the jury’s determination to award costs of repairs, the court of appeal found it was essential to award plaintiffs total replacement costs to properly repair the problems caused by the defective concrete. Guidry, 03-1236 at 5-8, 877 So.2d at 350-352.

We find the court of appeal erred in considering the effect of an uncontested jury charge. Neither party objected to the instruction and neither assigned the instruction as an error on appeal. See LSA-C.C.P. art. 1793(c) (“A party may not assign as error the giving ... [of] an objection unless he objects thereto either before |3the jury retires to consider its verdict or immediately after the jury retires.”). In a jury trial, the jury is responsible for finding facts and applying the law, as charged by the court, to the facts in arriving at a verdict. As acknowledged by the court of appeal, the function of the appellate court is to review the jury’s verdict for manifest error. If there is a reasonable basis in the record for the jury’s determination, the court of appeal must affirm even if the appellate court would have made a different finding. Touchard v. SLEMCO Electric Foundation, 99-3577, p. 5 (La.10/17/00), 769 So.2d 1200, 1204 (on rehearing).

In this case the court of appeal usurped the function of the jury. The court of appeal substituted its evaluation for that of the jury. The jury’s determination was reasonable in light of the evidence presented.

Accordingly, defendants’ writ is granted in part. The decision of the court of appeal increasing the award for damages is reversed. The judgment of the trial court, rendered in accordance with the jury verdict, is reinstated.

CALOGERO, C.J., and KIMBALL, J., would grant the writ.


text:
    DEEP SOUTH TOWING, INC. v. SEDGWICK OF NEW ORLEANS and Marsh U.S.A.
    No. 2004-C-2115.
    Supreme Court of Louisiana.
    Nov. 17, 2004.
   PER CURIAM.

The ruling of the Fourth Circuit Court of Appeal refusing to consider the exception of peremption as an alternative ground for affirming the judgment of dismissal is reversed. See Succession of Markham, 180 La. 211, 156 So. 225 (1934) and Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987). The case is remanded to the Fourth Circuit Court of Appeal to review the trial court’s denial of the exception of peremption.

JOHNSON, J., would deny the writ.


text:
    In re Michael J. RILEY, Sr.
    No. 2004-OB-2337.
    Supreme Court of Louisiana.
    Nov. 19, 2004.
   ON APPLICATION FOR READMISSION TO THE BAR

PER CURIAM.

The petition for readmission to the bar is denied. Petitioner may not reapply for readmission until restitution has been made, but in no event until after one year has passed from the date of this judgment. Supreme Court Rule XIX, Section 24(1).


text:
    Charles TURNER v. WEISER SECURITY.
    No. 2004-CC-1937.
    Supreme Court of Louisiana.
    Nov. 8, 2004.
   In re Weiser Security; — Defendant; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District Eight, No. 30-09217; to the Court of Appeal, Fourth Circuit, No. 2004-C-0886.

Writ denied. Motion for sanctions denied.


text:
    Brenda BAKER and Griffin Baker, III Individually and on Behalf of the Estate of His Minor Children D-Ashtreia and Griffin Baker, IV v. ZURICH AMERICAN INSURANCE COMPANY, Merlin J. Miller, SNL Distribution Service Company, Old Republic Insurance Company and Geico Insurance Company.
    No. 2004-CC-2749.
    Supreme Court of Louisiana.
    Nov. 8, 2004.
   In re Zurich American Insurance Company; Miller, Merlin J.; SNL Distribution Service Company; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District

Court Div. L, No. 2003-9089; to the Court of Appeal, Fourth Circuit, No. 2004-C-1896.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Dennis R. WHALEN v. Peyton MURPHY.
    No. 2004-CC-2564.
    Supreme Court of Louisiana.
    Nov. 10, 2004.
   In re Whalen, Dennis R.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 484,674; to the Court of Appeal, First Circuit, No. 2004 CW 0626.

Stay denied. Writ denied.


text:
    Glen R. MICHEL v. UNITED HEALTHCARE OF LOUISIANA, INC. and The City of Gretna.
    No. 2004-CC-2757.
    Supreme Court of Louisiana.
    Nov. 10, 2004.
   In re Gretna, City of; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 595-450; to the Court of Appeal, Fifth Circuit, No. 04-C-1129.

Stay denied. Writ denied.


text:
    Bertram Ronald CATES v. Michael JAMBOIS and Eugenia Jambois.
    No. 2004-C-2574.
    Supreme Court of Louisiana.
    Nov. 10, 2004.
   In re Jambois, Michael et al.; Jambois, Eugenia; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 99-13782; to the Court of Appeal, First Circuit, No. 2004 CU 1159.

Denied.


text:
    STATE of Louisiana v. Andrew MORGAN.
    No. 2004-KK-2754.
    Supreme Court of Louisiana.
    Nov. 10, 2004.
   In re Morgan, Andrew; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. B, No. 69,220-F; to the Court of Appeal, First Circuit, No. 2004 KW 2434.

Denied.

KIMBALL, J., recused.


text:
    WORD OF LIFE CHRISTIAN CENTER v. Mark WEST, Administrator, Ascension Parish Sales and Use Tax Authority State of Louisiana.
    No. 2004-C-1484.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re West, Mark, Administrator, Ascension Parish Sales and Use Tax Authority; — Defendant; Applying for Writ of Cer-tiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. B, No. 63,632; to the Court of Appeal, First Circuit, No. 2003 CA 1399.

Granted.


text:
    ALL STAR ADVERTISING AGENCY INC. d/b/a All Star Automotive Group. v. RELIANCE INSURANCE COMPANY, in Liquidation.
    No. 2004-C-1544.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Reliance Insurance Company in Liquidation; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 501,352; to the Court of Appeal, First Circuit, No. 2003 CA 0891.

Granted.


text:
    Brenda R. THIBODEAUX and Lucien G. Thibodeaux v. Debbie M. JURGELSKY, M.D.
    No. 2004-C-2004.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Jurgelsky, Debbie M. M.D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 01-C-2216; to the Court of Appeal, Third Circuit, No. CA 03-1298.

Granted.


text:
    STATE of Louisiana v. Terryance RUSSELL.
    No. 2004-KP-1622.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 375-503; to the Court of Appeal, Fourth Circuit, No. 2003-K-2220.

Writ granted; convictions and sentences reinstated. Relator has not carried his post-conviction burden of proof that he filed his application timely. La.C.Cr.P. art. 930.2. Thus, his claim of ineffective assistance of counsel should not have been considered on the merits by the district court. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 98-2830 (La.9/5/95), 660 So.2d 1189.

JOHNSON, J., would deny the writ.


text:
    Fred D. KIDD, Sr. v. BROWN RADIATOR & FRAME.
    No. 2004-C-1961.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Brown Radiator & Frame; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District IE, No. 02-08708; to the Court of Appeal, Second Circuit, No. 38,-729.

Granted and remanded. The court of appeal’s determination that the Office Of Workers’ Compensation Hearing Officer’s ruling is interlocutory and not a final ap-pealable judgment is hereby reversed. We hereby remand this matter to the court of appeal for an opinion on the merits.

KIMBALL, J., would deny.


text:
    Robert BLAIS v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
    No. 2004-CC-2135.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Great Atlantic & Pacific Tea Company Inc.;- — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2003-09218; to the Court of Appeal, Fourth Circuit, No. 2004-C-1097.

Granted and remanded to court of appeal for docketing, briefs and oral argument, unless waived.


text:
    D.L. WILLIAMS and Helen B. Williams v. UNOPENED SUCCESSION OF Mariah & Carey NICHOLS.
    No. 2004-CD-2029.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Carr, Jerry R.; — Other; Applying for Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. A, No. 01-263.

Transferred to Court of Appeal.