author: COVINGTON, Judge.

text:
    Michael GISI, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5272.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.

      Michael Gisi, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   COVINGTON, Judge.

Michael Gisi, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises several grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to three of the claims raised therein, and we deny, without comment, the remainder of the claims.

Gisi was convicted after jury trial of four counts of committing actual intercourse upon a child under the age of sixteen in violation of section 800.04(2), Florida Statutes (1997), eight counts of handling and fondling a child under the age of sixteen in violation of section 800.04(1), Florida Statutes (1997), one count of interference with custody in violation of section 787.03, Florida Statutes (1997), and one count of seduction of a child via computer in violation of section 847.0135(3), Florida Statutes (1997). Gisi was sentenced to seventy-one years’ imprisonment on each count of counts one through twelve and 17.5 months’ imprisonment on counts thirteen and fourteen. All of the sentences were to run concurrently. The convictions and sentences were affirmed on appeal. Gisi v. State, 818 So.2d 510 (Fla. 2d DCA 2002) (table decision).

The testimony at trial established that the victim in this case was a thirteen-year-old girl with whom Gisi had developed a relationship over the computer. He traveled to Florida to spend several days with her, and the sexual activity between the two was consensual. The evidence showed that the violations of section 800.04 were grouped into four sexual episodes with each episode containing three violations of the statute. Each sexual episode contained a violation of subsection (2) of the statute, which prohibits, among other things, actual or simulated intercourse. Each sexual episode also contained two violations of subsection (1) of the statute, which prohibits handling, fondling, or assaulting a child in a lewd and lascivious manner. In each episode, the violation of subsection (2) was alleged to be penile penetration or union with the vagina, and the evidence at trial established that Gisi had actual sexual intercourse with the victim in each of the four episodes. The evidence showed that the two violations of subsection (2) that occurred in each of the episodes were based on Gisi’s placing his mouth on the victim’s sexual organ as well as his penetrating the victim’s sexual organ with his finger or fingers. Each sexual episode occurred in the same temporal and spatial zone, and each episode consisted of a single continuous course of conduct. In fact, each episode occurred in Gisi’s motel room.

In the first ground of his petition, Gisi alleged that appellate counsel was ineffective for failing to argue that his convictions and sentences on counts five through twelve (the handling and fondling counts) were prohibited by the constitutional bar against double jeopardy. Gisi relies primarily on Morman v. State, 811 So.2d 714 (Fla. 2d DCA 2002). Morman was convicted of four violations of section 800.04(1). The four counts involved two separate episodes of sexual activity. In one episode, Morman touched the victim’s breasts and her genital and/or vaginal area. In another episode, Morman touched her breasts and genital area. The Morman court held that there were only “two episodes of inappropriate sexual activity for which Mr. Morman may be punished” and that “the various lewd and lascivious acts were not sufficiently discrete for them to be deemed separate offenses within each episode.” Id. at 717. Upon remand, this court ordered the trial court to strike two of Morman’s convictions as violative of double jeopardy.

The Morman court cited State v. Hightower, 509 So.2d 1078 (Fla.1987), for the proposition that “[a]s now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious.” Morman, 811 So.2d at 717 (quoting Hightower, 509 So.2d at 1079). The Morman court then concluded that “the statute’s focus is on conduct involving sexual activity and not upon the individual acts that comprise lewd and lascivious activity in the same spatial and temporal zone.” Id.

In the present case, in each of the four episodes, Gisi was charged with violating subsection (2) of section 800.04 and two violations of subsection (1) of the same statute. In Morman, in each of the two episodes Morman was charged with twice violating subsection (1). Thus, with regard to each episode of sexual activity, Gisi, unlike Morman, was charged and convicted of violating two subsections of section 800.04 that each proscribe different acts. However, this appears to be a distinction without a difference since each violation is a lewd and lascivious act, and according to Morman, the statute’s focus is on conduct involving sexual activity and not on each individual act that occurs within the course of conduct.

Gisi’s trial counsel did not raise the double jeopardy issue below; however, the issue was not waived for appellate purposes because a double jeopardy violation constitutes fundamental error which can be raised for the first time on appeal. See Johnson v. State, 747 So.2d 1027 (Fla. 2d DCA 1999). Thus, Gisi’s appellate counsel could have raised the issue that two out of the three convictions in each of the four sexual episodes were barred by double jeopardy considerations regardless of the fact that trial counsel did not present this argument to the trial court.

Gisi’s initial brief in the direct appeal was filed on October 4, 2001. The answer brief was filed on November 16, 2001. The per curiam affirmed opinion was issued on April 26, 2002. Morman issued on February 20, 2002, which was after the briefs were filed in Gisi but prior to the issuance of the opinion in that case. However, appellate counsel should have been aware of Morman and could have filed a motion to file a supplemental brief. Furthermore, the decision in Morman was based in part on the Fourth District’s decision in Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001). The Eaddy court held that Eaddy’s two convictions for a lewd and lascivious act violated double jeopardy where Eaddy, in a single criminal episode, touched the victim’s breasts and fondled her vagina. The court concluded:

In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.

Id. at 1095.

Thus, as did the court in Whatley v. State, 679 So.2d 1269, 1270 (Fla. 2d DCA 1996), we conclude in the present case that appellate “counsel’s failure to raise the [double jeopardy] issue on appeal is not excused because there was binding case law in effect at the time the appeal was pending upon which to base the double jeopardy argument.” The evidence presented at Gisi’s trial clearly supported an argument that eight of Gisi’s convictions for violations of section 800.04 were barred by double jeopardy considerations. We hold that appellate counsel’s failure to raise this issue on appeal constituted deficient performance that undermined confidence in the correctness and fairness of the result of the appeal. See Downs v. Moore, 801 So.2d 906 (Fla.2001) (holding that to establish a claim of ineffective assistance of appellate counsel, a movant must show that counsel’s performance was deficient and that the deficiency of his performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the result). We therefore grant the petition as it relates to this claim, and we remand to the trial court to appoint appellate counsel to brief the double jeopardy issue. See Whatley, 679 So.2d at 1270.

In ground two of his motion, Gisi alleged that appellate counsel was ineffective in failing to argue that the trial court erred in sentencing him above the statutory maximum on counts one through twelve without submitting the issue of victim injury to a jury. Gisi was sentenced to seventy-one years’ imprisonment on each of the twelve counts, each of which is a second-degree felony with a statutory maximum of fifteen years’ imprisonment. See §§ 800.04, 775.082(3)(c), Fla. Stat. (1997). Gisi relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Where the addition of victim injury points is a factor which causes a sentence to be increased beyond the statutory maximum, the facts of victim injury must be submitted to a jury pursuant to Apprendi. See Arrowood v. State, 843 So.2d 940 (Fla. 1st DCA 2003).

In the present case, the trial court sentenced Gisi on May 26, 2000. Apprendi was issued on June 26, 2000. As noted, the initial brief in this case was filed in October 2001. Although the Apprendi issue was not raised at sentencing by trial counsel, appellate counsel could have preserved the issue for appellate review by filing a motion to correct a sentencing error in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Arrowood. Apprendi does not apply retroactively to sentences that were final prior to its issuance. See Hughes v. State, 826 So.2d 1070 (Fla. 1st DCA 2002), review granted, 837 So.2d 410 (Fla.2003). However, the Third District in Hudson v. State, 800 So.2d 627 (Fla. 3d DCA 2001), reversed Hudson’s sentence and remanded for resentencing where Hudson was sentenced, as was Gisi in the present case, prior to the issuance of Apprendi. We grant the petition as it relates to this claim and remand to the trial court to appoint appellate counsel to brief the Apprendi issue.

In ground four of his petition, Gisi alleged that appellate counsel was ineffective for failing to argue that the trial court erred in denying his motion for judgment of acquittal on counts three, seven, and eleven of the information. The State charged that on Friday, November 20, 1998, Gisi committed two acts of actual intercourse in violation of section 800.04(2) and four acts of handling and fondling in violation of section 800.04(1). This was based on two separate sexual episodes, each involving one count of actual sexual intercourse and two counts of handling and fondling. Prior to cross-examining the victim, trial counsel orally moved for a statement of particulars, and the State stayed with the allegations in the information. The victim testified that there were two sexual episodes on one day but that she did not know if that day was Friday the 20th or Saturday the 21st. Trial counsel moved for a judgment of acquittal on counts three, seven, and eleven on the ground that those counts “have to do with a second sexual encounter on the 20th. There was no testimony that there were two sexual encounters on the 20th.” Where the State, in a statement of particulars, alleges that the offense occurred on a certain date, the accused is entitled to a directed verdict if the evidence at trial does not establish that the offense occurred on the date specified. See State v. Jefferson, 419 So.2d 330 (Fla.1982). We grant Gisi’s petition as it relates to this claim and order the trial court to appoint an appellate attorney to brief the issue that the trial court erred in denying Gisi’s motion for judgment of acquittal on the three counts that comprise the second sexual episode alleged by the State to have occurred on November 20,1998.

The petition is denied in part and granted in part, with instructions to the trial court to, within thirty days from the date of the issuance of the mandate in this case, appoint an appellate attorney to file a brief on the three issues outlined above. See Whatley. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal.

SALCINES and STRINGER, JJ„ Concur.

      . It is within the trial court’s discretion whether or not to entertain an oral motion for statement of particulars once the trial has begun. See Elkins v. State, 212 So.2d 53 (Fla. 3d DCA 1968).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James H. CARROW, Appellant, v. THE FLORIDA BAR, Appellee.
    No. 2D03-50.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.

      James H. Carrow, pro se.
    Barry Richard and Glenn T. Burhans, Jr., of Greenberg Traurig, P.A., Tallahassee, for Appellee.
   PER CURIAM.

James Carrow appeals two nonfinal, nonappealable orders entered in the trial court proceedings. We treat Carrov/s appeal as both a petition for writ of certiorari and a petition for writ of prohibition, dismiss the petition for writ of certiorari, and deny the petition for writ of prohibition.

Carrow first appeals an order imposing a stay of discovery until such time as he files a legally sufficient complaint. An order on a motion imposing a stay of discovery is reviewable by petition for writ of certiorari. See Perry v. Fireman’s Fund Ins. Co., 379 So.2d 429, 430 (Fla. 2d DCA 1980). Accordingly, we treat this portion of the appeal as a petition for writ of certiorari.

In order to prevail when seeking review of an interlocutory order by common law certiorari, the petitioner must establish that (1) the trial court departed from the essential requirements of the law; (2) which has resulted in a material injury that will affect the remainder of the proceeding; and (3) which cannot be corrected through any other means. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). Here, the stay is imposed only “until further order of the Court.” In addition, the trial court noted at the hearing that the purpose of imposing the stay was simply to prevent discovery until there was a valid, operable complaint. Accordingly, once there is a valid complaint in place, the stay will be lifted, and Carrow will be entitled to those items that are discoverable. Under these circumstances, Carrow has not established that he has suffered a material injury that will affect the remainder of the proceedings. Therefore, we dismiss the petition for writ of certiorari addressed to this order.

Carrow also appeals the order denying his motion to disqualify the trial judge. An order denying a motion to disqualify a trial judge is reviewed by a petition for writ of prohibition. Bundy v. Rudd, 366 So.2d 440 (Fla.1978); Rucks v. State, 692 So.2d 976 (Fla. 2d DCA 1997); Time Warner Entm’t Co. v. Baker, 647 So.2d 1070 (Fla. 5th DCA 1994). Accordingly, we treat this portion of the appeal as a petition for "writ of prohibition.

A motion to disqualify a trial judge must comply with the requirements of Florida Rule of Judicial Administration 2.160. Time Warner, 647 So.2d at 1071. If the motion does not comply with the requirements of the rule, the writ will not issue. Id. Rule 2.160(c) requires a motion to disqualify a trial judge to be in writing, specifically allege the facts and reasons relied upon for disqualification, and be sworn to by the party signing the motion. In addition, rule 2.160(d) requires that the motion show that the party fears that he or she will not receive a fair trial based on a specifically described prejudice or bias of the judge or that the judge is related to a party or other attorney in the case.

Here, it is clear from the transcript of the hearing that Carrow’s motion did not allege any facts or reasons to disqualify Judge Holder and did not include any facts “specifically describing” any prejudice or bias of Judge Holder. Rather, Carrow’s motion was a blanket motion asking any trial judge assigned to the ease to recuse himself or herself if he or she could not be fair. This motion is legally insufficient pursuant to rule 2.160 and impermissibly shifts the burden of identifying prejudice or bias from the litigant onto the trial court. Therefore, we deny the writ of prohibition.

Petition for writ of certiorari dismissed; petition for writ of prohibition denied.

WHATLEY, NORTHCUTT, and VILLANTI, JJ., Concur.


text:
    David BIGBEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3796.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

David Bigbee appeals the sentence he received after filing a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Bigbee originally pleaded guilty to four counts of handling and fondling a child under the age of sixteen years. The trial court imposed concurrent sentences of ten years’ incarceration followed by fifteen years’ probation. After Bigbee filed the rule 3.800(a) motion, the trial court agreed that the sentences exceeded the statutory maximum and resentenced Bigbee to concurrent terms of ten years’ incarceration followed by five years’ probation. Bigbee now appeals the resentencing, claiming that the trial court used the incorrect sentencing guidelines. We agree and reverse for resentencing.

The charge detailed in count one of the information was alleged to have occurred between January 1, 1992, and September 2, 1997, while the charges outlined in counts two, three, and four of the information were each alleged to have occurred between May 1, 1997, and September 2, 1997. The trial court scored all of the offenses under the 1995 sentencing guidelines because those guidelines were in effect on September 2, 1997, the final date on which all four counts could have occurred. The trial court erred.

Bigbee’s offenses were not true continuing enterprises. Instead, Bigbee’s offenses were ones “that occurred at some unidentified point in time during a specified time frame.” See Cairl v. State, 833 So.2d 312, 313-14 (Fla. 2d DCA 2003). Since a jury made no specific finding as to the offense dates, Bigbee “is entitled to be resentenced to the most lenient version of the guidelines in effect during the time frame alleged in the information.” Id. at 314.

Thus, on count one, Bigbee is entitled to be resentenced under the 1991 sentencing guidelines, and on the remaining counts, Bigbee is entitled to be resentenced under the 1994 sentencing guidelines pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). Accordingly, we reverse and remand for resentencing under the appropriate sentencing guidelines.

Reversed and remanded.

SALCINES and VILLANTI, JJ., . Concur.

      . Prior to October 1, 1995, the end date of a continuing enterprise determined the applicable sentencing guidelines. See Puffinberger v. State, 581 So.2d 897 (Fla.1991); Cairl v. State, 833 So.2d 312 (Fla. 2d DCA 2003). Section 921.01 l(4)(b)(3), Florida Statutes (1995), took effect on October 1, 1995, and provided that continuing enterprises are to be sentenced under the guidelines in effect on the beginning date of the criminal activity. Cairl, 833 So.2d at 313-14.


author: GREEN, OLIVER L., Senior Judge.

text:
    Mickey Keith JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-1461.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.
    Pierce J. Guard, Jr., Lakeland, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   GREEN, OLIVER L., Senior Judge.

Mickey Keith Jacobs challenges the revocation of his probation and the sentence imposed upon revocation. We reverse and remand for further proceedings.

While Jacobs was on probation in this case, he was arrested and charged with several new offenses. Based on these new charges, the Department of Corrections filed an affidavit of violation of probation, alleging that Jacobs had violated his probation by committing the new offenses and by failing to pay certain costs.

In the case involving the new offenses, Jacobs filed a motion to suppress the evidence seized when he was stopped by officers from the Polk County Sheriffs Office. For reasons not apparent from the record, the trial court combined the hearing on the motion to suppress in the new case with the hearing on the violation of probation in this case. Shortly after that hearing, the trial court granted the motion to suppress the evidence against Jacobs. However, the trial court also revoked Jacobs’ probation based on the testimony at the same hearing and sentenced Jacobs to two years’ community control followed by three years’ probation. When the trial court entered its written order of revocation, it simply stated that it was revoking Jacobs’ probation. The written order does not include any findings of fact and does not state which conditions of probation Jacobs violated.

Evidence seized in violation of a probationer’s Fourth Amendment rights is not admissible in a probation revocation hearing. State v. Scarlet, 800 So.2d 220, 222 (Fla.2001); State v. Cross, 487 So.2d 1056, 1057-58 (Fla.1986). Thus, the evidence that the trial court ultimately suppressed was not properly admitted or considered in the revocation proceedings. Because of the unusual decision to combine the hearings on the motion to suppress and the revocation of probation, we cannot tell from the record before us whether the inadmissible evidence formed the basis of the decision to revoke Jacobs’ probation. While some admissible evidence was also offered to support the revocation, the lack of a proper written order prevents any meaningful review of the trial court’s decision. Accordingly, we reverse and remand for a new revocation hearing. If the trial court again revokes Jacobs’ probation, it must enter a proper written order that sets forth the conditions the trial court finds were violated. See Montonez v. State, 724 So.2d 650, 651 (Fla. 2d DCA 1999); Donley v. State, 557 So.2d 943, 945 (Fla. 2d DCA 1990).

Reversed and remanded for further proceedings.

SILBERMAN and KELLY, JJ., Concur.

      . The State has never appealed the trial court’s order granting the motion to suppress. After the motion was granted, the State nol pressed the new charges against Jacobs.


author: KELLY, Judge.

text:
    Mark BORLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3472.
    District Court of Appeal of Florida, Second District.
    July 16, 2003.
   KELLY, Judge.

Mark Borland appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for further proceedings.

In 1990, Borland was convicted after a jury trial of capital sexual battery for performing oral sex on the male victim. In his motion, Borland seeks DNA testing of a rape kit and clothes allegedly taken from the victim at the hospital immediately following the offense. Borland claims that the clothes contain hair samples and that the rape kit contains swabs of saliva taken from the victim’s penis. He contends that DNA testing of these items would show that he did not commit the crime.

The trial court concluded that the motion was facially sufficient and ordered the State to respond to Borland’s motion pursuant to Florida Rule of Criminal Procedure 3.853(c)(2), which states that “if the motion is sufficient, the prosecuting authority shall be ordered to respond to the motion.” In its response, the State claimed that a rape kit was not collected from the victim and that the victim’s clothing was never placed into evidence. Based on this response, the trial court denied Borland’s motion without an evidentiary hearing finding that no physical evidence containing DNA exists. Borland contends that it was error for the trial court to deny his motion without an evidentiary hearing.

Rule 3.853 is silent on when a trial court must conduct an evidentiary hearing on a motion for postconviction DNA testing. The rule simply provides that after the court receives the State’s response, it “shall review the response and enter an order on the merits of the motion or set the motion for hearing.” Fla. R.Crim. P. 3.853. Accordingly, we must look elsewhere for guidance to determine whether the trial court erred when it denied Bor-land’s motion without a hearing.

In this case, the trial court was confronted with a situation where the defendant claimed that DNA evidence existed, but the State denied the claim. A finding by the trial court that DNA evidence does or does not exist is a factual determination. In making factual determinations, a trial court can consider only sworn evidence. Melvin v. State, 804 So.2d 460, 463 (Fla. 2d DCA 2001) (holding that absent the parties’ stipulations, courts may only find facts based on sworn evidence). Unsworn allegations are not evidence and are insufficient to prove any fact. Id.; Clark v. State, 662 So.2d 729, 730 (Fla. 2d DCA 1995) (finding that the “state’s bare assertion” denying a factual matter was insufficient to rebut the defendant’s sworn allegations). Accordingly, allegations in the State’s unsworn response do not provide a sufficient basis on which to find that no DNA evidence exists.

Even an affidavit from the State would not be sufficient to resolve this factual issue. “An affidavit serves as the functional equivalent of testimony which is contradictory to the allegations sworn as true by the movant. As such, it would be subject to confrontation at an evidentiary hearing.” Clark, 662 So.2d at 730; accord Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987); see also Youngblood v. State, 261 So.2d 867, 867-68 (Fla. 2d DCA 1972) (holding that the trial court could not deny an evidentiary hearing on a claim of ineffective assistance of counsel based on the strength of a countervailing affidavit from the defendant’s attorney).

If the trial court determines that the defendant’s motion is sufficient, the rule requires the trial court to order the State to respond to the motion. We believe that the purpose of the State’s response is to frame the issues in dispute. If the State does not dispute the defendant’s entitlement to postconviction DNA testing, the rule permits the trial court to rule on the merits of the motion. If, however, the State’s response creates a factual dispute, the trial court should conduct an evidentia-ry hearing to resolve that dispute. Because in this case the State’s response created a factual dispute, the trial court should have conducted a hearing. Accordingly, we reverse and remand for the trial court to conduct a hearing on Borland’s motion.

Reversed and remanded for proceedings consistent with this opinion.

DAVIS and CANADY, JJ., Concur.

      . In an attempt to resolve the factual dispute created by the State’s response, the trial court attached to its order an excerpt from the trial transcript that it apparently believed refuted some of the defendant's claims. The attached excerpt actually supported the defendant’s claims, at least in part. Accordingly, that excerpt did not provide the trial court with a basis to deny Borland’s motion without a hearing. We note that in contrast to Florida Rule of Criminal Procedure 3.850, rule 3.853 does not contain a provision permitting the trial court to deny a hearing if the record conclusively shows the defendant is not entitled to relief. Accordingly, it may or may not be appropriate for the trial court to employ the procedure provided for in rule 3.850 when considering whether to grant a motion for postconviction DNA testing under rule 3.853. However, we express no opinion on that question because Borland has not raised that issue in this appeal.


text:
    Vaughn MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1812.
    District Court of Appeal of Florida, Second District.
    July 16, 2003.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Vaughn Morrow appeals from his judgments and sentences for possession of cocaine and possession of marijuana. He argues that the drugs found during a search of his person were the product of an illegal detention and, therefore, the trial court erred in denying his motion to suppress. We agree and reverse.

Morrow was a passenger in a car that a police officer stopped for speeding and for failing to display a tag. The officer approached the driver’s side of the car and asked the driver for his driver’s license and registration. After the driver complied, the officer then asked Morrow, who was sitting in the front passenger seat, for identification because Morrow was not wearing his seat belt. Morrow refused to tell the officer his name. In response to Morrow’s refusal, the officer temporarily abandoned his investigation of the traffic infractions that led to the stop. He walked around the car and positioned himself “right outside the passenger door” while he called for back-up. When the back-up officer arrived, Morrow gave his name, and it was discovered that Morrow had outstanding warrants for his arrest. A search of Morrow’s person incident to arrest revealed crack cocaine and marijuana.

Morrow argues that the trial court should have granted his motion to suppress the drugs because they were found during a search of his person after an illegal detention resulted in his arrest. The State contends that the detention was legal because the officer had made a valid traffic stop and because he had a reasonable suspicion that Morrow had violated the seat belt statute. Alternatively, the State argues that the officer’s interaction with Morrow was a consensual encounter.

An officer may detain a citizen temporarily if the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So.2d 185, 186 (Fla.1993). Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop. See McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986). Section 316.614(5), Florida Statutes (1999), provides that “[i]t is unlawful for any person 16 years of age or older to be a passenger in the front seat of a motor vehicle unless such person is restrained by a safety belt when the vehicle is in motion." (Emphasis added). At trial, Morrow testified that he was wearing the seat belt while the car was moving, but that he had unfastened it after the car had come to a stop. The officer testified that he did not know whether Morrow was wearing a seatbelt when the car was moving. He testified it was dark and he could not see in the car while it was moving. Given these circumstances, the officer did not have a reasonable suspicion of criminal activity that would have justified an investigatory detention.

A reasonable suspicion of criminal activity is not necessary if the contact is merely a consensual encounter. Popple, 626 So.2d at 186. In a consensual encounter, a police officer has the right to approach an individual in public and ask questions or request identification without a founded suspicion of criminal activity. Id. at 187. The individual may, but is not required, to cooperate with the police at this stage. Id. at 186; Cliett v. State, 722 So.2d 916 (Fla. 2d DCA 1998). When Morrow refused to give the officer his name, it should have been the end of the encounter.

However, instead of ending the encounter with Morrow, the officer positioned himself outside Morrow’s door and called for back-up. Morrow argues that this transformed what started as a consensual encounter into a seizure, and we agree. “[A] significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries.... ” Popple, 626 So.2d at 187. The officer’s positioning himself in a manner that blocked Morrow’s exit from the car combined with his call for back-up, which was occasioned by Morrow’s refusal to answer, would cause any reasonable person to believe that he or she was not free to leave. Cf. Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002) (holding that positioning a patrol car to obstruct the path of a vehicle once it is stopped elevates the encounter' into an investigatory stop).

Thus, what began as a consensual encounter evolved into an investigatory stop. Because the officer did not have the reasonable suspicion necessary to authorize an investigatory detention, the detention and subsequent arrest were illegal. Therefore, the drugs found as a result of the search incident to that arrest should have been suppressed. Accordingly, we reverse Morrow’s convictions and sentences.

Reversed.

ALTENBERND, C.J., and SALCINES, J., Concur.


author: HAWKES, J.

text:
    McCARTHY BROTHERS COMPANY, Appellant, v. TILBURY CONSTRUCTION, INC., and Nobel Insurance Company, Appellees.
    Nos. 01-4210, 1D02-0759.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Rehearing Denied April 22, 2003.

      John R. Hamilton of Foley & Lardner, Orlando, and Thomas F. Munro, II, of Foley & Lardner, West Palm Beach, for Appellant.
    James G. Etheredge of James G. Ether-edge, Chartered, Fort Walton Beach, and Robert A. Bauman and Robert E. Morris of Robert E. Morris, P.A., Tampa, for Appellees.
   HAWKES, J.

In these consolidated appeals, McCarthy Brothers Company (McCarthy) appeals a jury verdict in favor of Tilbury Construction, Inc. (Tilbury), and an award of attorney’s fees to both Tilbury and Nobel Insurance Company (Nobel). Nobel cross-appealed. McCarthy argues the trial court erred by: (1) refusing to grant McCarthy’s post-trial motion for remittitur or a new trial; (2) using a 2.5 multiplier in calculating the attorney’s fee award to Til-bury; (3) granting attorney’s fees to Nobel; (4) denying a special verdict form; and (5) its choice of the date from which it calculated an award of prejudgment interest. On cross-appeal, Nobel argues the trial court erred by limiting Nobel’s costs and fees recovery to taxable costs only. We find Noble’s argument on cross-appeal without merit. We affirm McCarthy’s claims (4) and (5) without discussion. We agree with claims (1) through (3), and reverse and remand with instructions.

I.

In late 1994, McCarthy, as general contractor on a condominium project, entered into a $651,673.00 subcontract with Til-bury (“the subcontract” or “the McCarthy-Tilbury contract”) to provide sheet rocking and other services. Tilbury paid a premium to Nobel as surety to insure its performance pursuant to the terms of the subcontract. There was no contractual relationship between McCarthy and Nobel.

Under the subcontract, Tilbury agreed to provide the drywall and other work on the condominium project for which McCarthy was the general contractor. However, as McCarthy, the building’s owner, and the purchasers of the individual condominium units began ordering changes to the project, the relationship between McCarthy and Tilbury began, to sour. During term of the subcontract, two hurricanes damaged the project and set work back several months. In addition to hurricane repairs, change orders continued to come in. Til-bury complained several times about not getting paid for work it had done that was not part of the subcontract. McCarthy, while acknowledging it owed Tilbury for work done on change orders, began complaining Tilbury had insufficient manpower on-site to complete the project.

In May of 1996, McCarthy declared Til-bury in default for insufficient manpower. Tilbury remained on the job site. In June of 1996, Tilbury submitted an invoice for over $196,000.00, which was based on hurricane repairs, change orders, and retain-age. Five days after receiving the invoice, McCarthy again declared Tilbury in default for insufficient manpower. Tilbury subsequently amended its invoice total to $192,152.88. Tilbury left the job site and filed suit seeking the $192,152.88. McCarthy counter-claimed for $488,161.63, and filed a third-party complaint against Nobel as surety. At trial, the jury rejected McCarthy’s claims and awarded Tilbury $374,709.00. The trial court awarded Til-bury its attorney’s fees with a 2.5 multiplier, and awarded Nobel its taxable costs. McCarthy filed a motion for remittitur or new trial, which the trial court denied.

II.

A trial court’s ruling on a motion for remittitur is reviewed under an abuse of discretion standard. At trial, Tilbury offered documentary and testimonial evidence to support the amount of the amended invoice as claimed. Although Tilbury’s owner made general assertions during his téstimony that Tilbury was owed more than this claimed amount, there was no evidence presented from which a jury could form a reasonable basis to exceed the claim and award $374,709.00. Thus, we find that the jury “misperceived the merits relating to the amounts recoverable,” in its attempt to compensate Tilbury for McCarthy’s breach by awarding an amount for which there is no reasonable basis in the evidence. Fla. Dep’t of Tramp, v. Hawkins Bridge Co., 457 So.2d 525, 527 (Fla. 1st DCA 1984) (emphasis in original). A court cannot allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial. If the jury verdict is excessive, remittitur is an appropriate remedy. Because the evidence presented at trial indicated the maximum allowable award was $192,155.88, we find the trial court abused its discretion by denying McCarthy’s motion for remittitur. Accordingly, we reverse and remand as to this claim. On remand, the trial court shall give Tilbury the opportunity to accept a reduction in the verdict to $192,152.88. If Tilbury declines, “the court shall order a new trial in the cause on the issue of damages only.”

III.

McCarthy also challenges the use of a 2.5 multiplier in calculating the attorney’s fee award to Tilbury, the award of any attorney’s fees to Nobel, and argues reversal in the liability appeal requires a reversal of both attorney’s fees judgments entered against it below. We find that reversal of the damages awarded in the liability appeal results in a provisional reversal of the attorney’s fees awarded Til-bury. If Tilbury elects to accept the re-mittitur, then the trial court may reimpose the agreed upon lodestar amount of $88,500.00, but with a 2.0, rather than a 2.5 multiplier.

We find the application of a multiplier appropriate for two reasons. First, Tilbury presented expert testimony that it would have been difficult to find an attorney willing to take its case without the opportunity for a multiplier. Due to the complexity of the case and the relative financial positions of the parties, this point is persuasive. Second, the McCarthy-Til-bury contract specifically provided that the party who recovered at least 75% of its claim would be considered the “prevailing party,” and receive attorney’s fees and costs from the non-prevailing party. Under this high burden, we find the evidence presented below demonstrated “the likelihood of success was approximately even at the outset.” A 2.5 multiplier is only appropriate where “success was unlikely at the outset of the case.” Quanstrom, 555 So.2d at 834. A 2.0 multiplier is appropriate where “the likelihood of success was approximately even at the outset.” Id. Accordingly, a 2.0 multiplier was appropriate. The trial court erred in applying a 2.5 multiplier because the evidence did not support a finding that “success was unlikely at the outset of the case.” Id.

However, if there is a new trial on damages, McCarthy and Tilbury will be required to revisit the attorney’s fees issue in its entirety, pending the outcome of the new trial. Because there are too many possible contingencies, such as a different result on damages or the effect of an offer of judgment pursuant to section 768.79, Florida Statutes, this court will not address the issue.

Finally, we find that Nobel was not entitled to recover any attorney’s fees from McCarthy. The reversal of Nobel’s attorney’s fees judgment is not provisional. At trial, Nobel based its argument for entitlement to attorney’s fees on language contained in the McCarthy-Tilbury contract, to which Nobel was not a party. Nobel claimed a contractual right to recover attorney’s fees based upon Articles Six and 10.5 of the McCarthy-Tilbury contract. Article Six defines the scope of the risk or coverage to which Tilbury’s surety would be exposed if Tilbury defaulted. It provides: “McCarthy shall be paid by the surety any legal and court costs McCarthy incurs in the enforcement of its rights under said bonds.” Article 10.5 provides:

The prevailing party in any legal action between the parties relating to this Agreement shall recover from the other party reasonable legal costs, including attorney’s and consultant’s fees, in connection with such action. The prevailing party is a party who recovers at least 75% of its total claims in the action or who is required to pay no more than 25% of the other party’s total claims in the action.

The McCarthy-Tilbury contract was incorporated by reference into the performance bond agreement between Tilbury and Nobel. Nobel argued the McCarthy-Tilbury contract directly contemplated paying attorney’s fees to other parties, such as Nobel, who may later enter into contracts with McCarthy or Tilbury. In the alternative, Nobel argued the McCarthy-Tilbury contract entitled it to recover fees upon successful defense of McCarthy’s third-party complaint, pursuant to section 57.105(6), Florida Statutes (2001). We find both arguments unpersuasive.

Contrary to Nobel’s arguments, Article 10.5 does not contemplate attorney’s fees for any entity other than McCarthy or Tilbury. Moreover, McCarthy had no need to include other parties, like Nobel, because it has a statutory means of recovering attorney’s fees from Nobel. See §§ 627.428 and 627.756, Fla. Stat. (2001). These sections are a “one-way street” when it comes to attorney’s fees. They allow the beneficiaries of an insurance policy to recover costs and fees if they prevail, but prohibit recovery by the insurance company if it prevails. See U.S. Security

Ins. Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3d DCA 2000).

Additionally, parties not in privity cannot benefit from the reciprocity provisions of section 57.105(6), Florida Statutes. Notably, Article Six of the McCarthy-Tilbury contract refers to costs, not attorney’s fees. Thus, even if section 57.105(6), applied to Nobel, the language in Article Six would preclude its application here.

IV.

We affirm the judgment of liability, the denial of the special verdict form, and the date for calculation of prejudgment interest; we reverse the denial of McCarthy’s motion for remittitur and remand for further proceedings consistent with this opinion; we provisionally reverse the award of attorney’s fees to Tilbury and cap the multiplier at 2.0; and we reverse the award of attorney’s fees to Nobel.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BARFIELD and POLSTON, JJ„ concur.

      . Cases 1D01-4210 (the liability appeal) and 1D02-759 (the attorney's fees appeal) were consolidated for the record on appeal, for oral argument, and for purposes of this opinion.

      . See § 768.74(6), Fla. Stat. (2001); see also Winn-Dixie Stores, Inc. v. Robinson, 472 So.2d 722, 725 (Fla.1985); Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970, 975 (Fla. 1st DCA 1991).

      . See, e.g., Carrousel International Corp. v. Auction Co. of America, Inc., 674 So.2d 162 (Fla. 3d DCA 1996); LoCastro v. Ruane, 525 So.2d 500 (Fla. 5th DCA 1988).

        .See § 768.74(1), Fla. Stat. (2001); see also Carrousel International Corp., 674 So.2d at 163.

      . § 768.74(4), Fla. Stat. (2001); see also Gould v. Nat’l Bank of Fla., 421 So.2d 798, 802 (Fla. 3d DCA 1982) (noting "[i]t is also settled law that the function of a remittitur is to correct an improper verdict as to damages, and where the error is only that the damages awarded are excessive it is not proper to retry the issue of liability: remittitur or new trial on damages is the remedy.” (citations omitted)).

      . Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla.1990); see also Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403 (Fla.1999) (applying Quanstrom to cases in which the sole basis for attorney’s fees was contractual).

      . This section provides:
      If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.


author: COPE, J.

text:
    Andre Terrell BARTEE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D01-1479, 3D01-1648.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Rehearing Denied May 7, 2003.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   COPE, J.

Andre Terrell Bartee appeals his convictions for first degree murder and grand theft of an automobile. The State cross-appeals the dismissal of the charge of burglary of an occupied vehicle. We affirm on the appeal and reverse on the cross-appeal.

I.

Defendant-appellant Bartee requests a new trial, claiming errors in jury selection.

The defendant argues that his challenge for cause against prospective Juror Lohr should have been granted. The voir dire cited by the defense is as follows:

DEFENSE: Mrs. Santos, a person is accused of murder.
What should they do to defend themselves, for you?
SANTOS: Get a good lawyer.
DEFENSE: Okay. Well, he already got that far. Okay.
No, what do you think that he should be doing in the courtroom, should they be doing something to defend?
SANTOS: The person themselves?
DEFENSE: Yes.
SANTOS: No, no. I mean, I think at that point, they depend on the lawyer.
DEFENSE: Mrs. Lohr, what do you think?
MRS. LOHR: Same.
DEFENSE: You don’t think they should be doing anything specifically in a courtroom?
Like, for example, you think that the person accused of a murder should bring in witnesses to testify, for you. Do they have to do that?
MRS. LOHR: Yeah, sure.
DEFENSE: They have to?
MRS. LOHR: Yes.
DEFENSE: Okay, And what about testifying on the witness stand. Do they have to do that if they are accused of murder?
MRS. LOHR: If they choose to.
COURT: Okay. Do you understand that the defense doesn’t have to call any witnesses, the defendant doesn’t have to testify.
It’s up to the state to prove this case. The entire burden rests on them.
Now, what you may want is not precisely what you will end up getting.
What you need to make sure is that you can keep an open mind, that you give the Defendant a fair trial, that you listen to the facts and listen to the law.
The law basically says, the state has the entire burden, the defendant doesn’t have to prove anything, the defendant doesn’t have to disprove anything.
The defendant doesn’t have to testify. Will anyone hold it, by a show of hands, against Mr. Bartee, if the defense doesn’t call any witnesses, if the defendant doesn’t testify, will anyone hold it against him. By a show of hands, no hands have been raised.

Tr. 111-12 (emphasis added).

In our view, the curative instruction given here was sufficient. The defense argues that a contrary result is dictated by this court’s position in Plasir v. State, 785 So.2d 502 (Fla. 3d DCA 1999), but that case is distinguishable. There a prospective juror expressed some reservations if the defendant chose not to testify, in response to which the trial court gave a more abbreviated curative instruction than that involved here.

The main problem in the Plasir case was the equivocal response of the juror, who indicated “I could follow that instruction.” 785 So.2d at 503. “The court then asked You think you can?’ and he answered Yes.’ ” Id. (footnote omitted). The Plasir panel took the view that “could follow” and “think you can” both amount to equivocal responses and that absent a more definitive response, the challenge for cause should have been allowed. See also Kelly v. State, 689 So.2d 1262, 1263 (Fla. 3d DCA 1997).

In the present case the curative instruction was much more thorough, and the venire was asked point blank whether anyone would hold it against the defendant if the defense did not call any witnesses, or if the defendant does not testify. If this curative instruction is not sufficient, then it is difficult to imagine any instruction to the prospective jurors which would be. We conclude that the challenge to the prospective juror was properly denied. See Cook v. State, 542 So.2d 964, 969 (Fla.1989); Mills v. State, 462 So.2d 1075, 1079 (Fla.1985).

The defense argues that the challenge for cause against prospective Juror Welch should have been granted. The relevant voir dire is the following:

DEFENSE: Who here feels that it would be difficult for them to sit through a trial seeing photographs of somebody that has been killed. Okay. And I believe it’s Mrs. Polk.
POLK: Yes.
DEFENSE: Okay. And Mrs. Morillo. Mrs. Polk also raised her hand. Okay. Anyone else. Okay. Mrs. Esco-bar, okay, and now, would you have trouble, ma’am, Mrs. Welch, if you had to look at something like that?
WELCH: Yeah.

Tr. 133. There was no further questioning of Mrs. Welch by anyone on this issue. Subsequently, the defense effort to strike Mrs. Welch for cause was denied.

The above questioning is insufficient to raise an issue regarding Juror Welch. The relevant question is whether “the viewing of graphic autopsy photographs would have an adverse effect on the ability to be fair and impartial.” King v. State, 790 So.2d 1253, 1255 (Fla. 5th DCA 2001). Many prospective jurors would undoubtedly prefer to avoid viewing autopsy photos or, for that matter, serving on the jury. Here the question and answer do not sufficiently raise an issue which would warrant a challenge for cause.

II.

The State argues that the trial court erred by dismissing count two of the indictment, burglary of a conveyance, after the jury had reached a verdict of guilty on this count. The trial court reasoned that the burglary count duplicated count three, which was grand theft of an automobile.

The State’s point is well taken. Burglary of an automobile and theft of the same automobile are two different offenses. State v. Stephens, 601 So.2d 1195, 1196-97 (Fla.1992); see also § 775.021(4), Fla. Stat. (1997). We therefore reverse the dismissal order and remand with directions to enter judgment and impose sentence on count two.

The defense argues that the State did not sufficiently preserve this point for appeal. The defense argues that the State’s objection was too perfunctory. Under the circumstances of this case, we disagree. This particular issue had been argued to the court at the time of the motions for judgment of acquittal. The court reserved ruling. Upon receiving the verdict, the judge adjudicated the defendant guilty of counts one and three, but announced the dismissal of count two. Although the State again objected for the record, no objection or argument was needed to preserve the issue at that point. The arguments had already been made; the court simply announced its ruling on the reserved issue.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . Although not set forth in the opinion, the instruction was apparently the following excerpt from the standard jury instruction regarding a defendant not testifying:
      The constitution requires the State to prove its accusations against the defendant.
      It is not necessary for the defendant to disprove anything. Nor is the defendant required to prove [his][her] innocence. It is up to the State to prove the defendant's guilt by evidence.
      Fla. Std. Jur. Instr. (Crim.) 2.04(d).


text:
    James PAGE, Property Appraiser, Nassau County, Florida, Petitioner, v. John F. McMULLAN and Marilyn M. McMullan, Respondents.
    No. 1D02-4744.
    District Court of Appeal of Florida, First District.
    March 18, 2003..
    Rehearing Denied April 17, 2003.
    Larry E. Levy of the Levy Law Firm, Tallahassee, for petitioner.
    Kenneth B. Wright of Datz, Jacobson, Lembcke & Wright, Jacksonville, for respondents.
   PER CURIAM.

James Page, Property Appraiser for Nassau County, petitions this court for a writ of prohibition, contending that the circuit court lacks jurisdiction over the claim of respondents McMullan for homestead exemption for tax year 2001. We agree, and grant the petition.

The MeMullans have paid property taxes on real property in Nassau County since 1992 and had received a homestead exemption through 1999. In 2000 Property Appraiser Page denied homestead exemption. A complaint was filed in circuit court challenging that decision. The complaint alleged that it was timely and sought a refund for tax year 2000. The complaint also alleged that plaintiffs would suffer future damages. An answer was filed and in August 2002 the plaintiffs moved to amend their complaint to include a challenge to the denial of homestead exemption for the year 2001. Defendant Page objected, asserting, among other things, that the challenge to the 2001 assessment was not timely filed in accordance with section 194.171(2). The trial court granted leave to amend and the amended complaint was filed, with Count II seeking relief with regard to the homestead exemption for tax year 2001. Page moved to dismiss, again taking the position that the challenge to the 2001 assessment was time-barred. The motion to dismiss was denied and that ruling is challenged through the instant petition for writ of prohibition. We have jurisdiction. Department of Revenue v. Eastern American Technologies Corp., 762 So.2d 1044 (Fla. 5th DCA 2000); see also Pincus v. Carlisle, 585 So.2d 1172 (Fla. 4th DCA 1991) (granting prohibition where trial court lacked jurisdiction over one count of multi-count complaint).

Florida Rule of Civil Procedure 1.190(c) permits the “relation back” of an amended pleading when the claim “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....” It is well-settled, however, that such amendment may not be used to avoid the statute of limitations if the amendment sets forth a new and distinct cause of action. West Volusia Hospital Authority v. Jones, 668 So.2d 635 (Fla. 5th DCA 1996); School Board of Broward County v. Surette, 394 So.2d 147 (Fla. 4th DCA 1981); Daniels v. Weiss, 385 So.2d 661 (Fla. 3d DCA 1980). This same rule of law should apply in the instant matter, which involves section 194.171(2), a statute of non-claim. Thus, the controlling question is whether the new count in the complaint, setting forth a challenge to denial of the exemption for the subsequent year, states a new cause of action. We find that it does. Section 196.011(l)(a) provides in pertinent part that “[failure to make application, when required, on or before March 1 of any year shall constitute a waiver of the exemption privilege for that year,” with certain exceptions which do not apply in the instant case.

The case of Palmer Trinity Private School, Inc. v. Robbins, 681 So.2d 809 (Fla. 3d DCA 1996) is controlling on this question. The school was denied an educational tax exemption in 1988 but the property appraisal adjustment board approved the exemption. The property appraiser filed suit in circuit court and prevailed. The district court reversed and the Florida Supreme Court denied review. Meanwhile, however, the school took no action with regard to its 1989 exemption despite having received a notice of proposed assessment and an actual tax bill. The circuit court held that it did not have jurisdiction over the 1989 exemption because the school had not filed an action contesting the assessment within 60 days of certification of the assessment for collection. The district court affirmed, rejecting the claim that failure of the property appraiser to send a renewal application for the 1989 tax year tolled the time for filing an appeal in light of the receipt of the proposed assessment and the tax bill. Here, as in Palmer Trinity Private School, the taxpayers’ failure to timely seek relief bars a claim regarding an exemption for a subsequent year, despite the fact that the original denial of the exemption was in litigation when the time for the subsequent year’s challenge arose.

The respondents argue that this case involves reclassification of property, and therefore they are not bound by the time limit of section 194.171(2). We disagree. See Department of Revenue v. Eastern American Technologies. We are also not persuaded that the McMullans were excused from applying for the exemption for tax year 2001 because of the actions or inactions of the property appraiser in these circumstances. See Palmer Trinity Private School, 681 So.2d at 810-11.

We accordingly grant the instant petition and remand to the trial court with directions to dismiss the McMullans’ complaint insofar as it relates to their homestead exemption for the tax year 2001.

PETITION GRANTED.

ERVIN, BOOTH, and WOLF, JJ., concur.


author: PER CURIAM. JOHNSON, J., TRAYLOR, Justice,

text:
    In re Jeffrey S. WITTENBRINK.
    No. 2003-B-0425.
    Supreme Court of Louisiana.
    June 27, 2003.
    Charles B. Plattsmier, G. Fred Ours, Baton Rouge, Counsel for Applicant.
    James R. Clary, Jr., Jeffrey S. Witten-brink, Baton Rouge, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter involves one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Jeffrey S. Wittenbrink, an attorney licensed to practice law in the State of Louisiana.

UNDERLYING FACTS

The parties entered into a stipulation of facts. They stipulated respondent employed Tammy Shattuck as a legal secretary from April 1996 through May 2000. During her employment, Ms. Shattuck was always paid her salary in a timely manner and received all of her W-2 forms in a timely fashion. Respondent withheld applicable federal and state taxes, as well as other applicable sums, such as Medicare and FICA, from Ms. Shattuck’s paycheck. However, respondent failed to forward these sums to the appropriate governmental agencies. Similarly, respondent did not forward any “employer matching” funds which were due to the federal and state governments as part of his employer’s responsibility.

Initially, Ms. Shattuck was unaware that respondent failed to pay the taxes and sums withheld from her paycheck to the appropriate governmental agencies. She first learned of respondent’s actions in May 1998. Thereafter, she had several discussions with respondent, who promised that he would resolve the situation and pay the | ¡.necessary sums as soon as he could. Ms. Shattuck ended her employment in May 2000.

Subsequently, respondent entered into discussions with the appropriate governmental authorities and entered into an arrangement whereby all outstanding taxes, penalties and interest would be paid. The parties stipulated that Ms. Shattuck did not suffer any actual adverse federal or state income tax penalties as a result of respondent’s actions.

Respondent also stipulated that he failed to pay his personal federal and state income tax returns for the tax years 1996, 1997, 1998, 1999 and 2000 in a timely fashion. He has now filed all appropriate personal income tax returns, and intended to enter into an agreement to pay all outstanding personal taxes.

Besides the stipulated facts, the facts developed at the formal hearing revealed that respondent had failed to file personal tax returns and failed to remit the sums withheld from his other employees’ paychecks for the years 1998-1995, in addition to the years 1996-2000 which were covered by the stipulation.

DISCIPLINARY PROCEEDINGS

Formal Charges

After receiving a complaint from Ms. Shattuck, the ODC commenced an investigation. Following its investigation, the ODC filed one count of formal charges against respondent alleging his conduct violated Rule . 1.15 (conversion), Rule 8.4(a) (violating the Rules of Professional Conduct) and Rule 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) of the Louisiana Rules of Professional Conduct.

^Respondent filed an answer to the formal charges, essentially denying any misconduct on his part.

Recommendation of the Hearing Committee

A formal hearing was conducted before the hearing committee. The ODC presented documentary evidence, as well as testimony from Ms. Shattuck. Respondent testified on his own behalf. He also introduced the testimony of Ben Melanson, who was qualified as an expert in tax matters. When questioned about the ownership of the employee -funds withheld by respondent, Mr. Melanson testified that there was no “bright line” test regarding who actually owned the funds. However, he characterized the funds as a “debt” owed by the employee, which the employer was required to remit to the appropriate agencies.

At the conclusion of the hearing, the hearing committee rendered its recommendation. With regard to the funds withheld from the employees’ paychecks, the committee found the ODC failed to prove by clear and convincing evidence that respondent’s actions constituted misappropriation, commingling or conversion of funds. However, the committee found the ODC presented clear and convincing evidence of professional misconduct arising from respondent’s failure to satisfy his personal tax obligations. As a sanction, the committee recommended respondent be given a fully deferred one year suspension.

Recommendation of the Disciplinary Board

The board agreed that respondent’s failure to remit the sums withheld from his employees’ paychecks did not amount to a conversion of funds for purposes of Rule 1.15. However, the board determined respondent’s actions violated Rules 8.4(a) and 148.4(c), as they involved elements of deceit, dishonesty, fraud and misrepresentation. The board concluded respondent violated a duty owed to the public and caused actual injury (albeit a minimal amount) to the public fisc.

Addressing the issue of sanctions, the board recognized as aggravating factors respondent’s prior disciplinary record, dishonest or selfish motive and pattern of misconduct. It declined to recognize any factors in mitigation.

Relying on jurisprudence from this court, the board recommended that respondent be suspended for a period of two years and one day, with one year deferred, subject to a two-year period of probation. It further proposed a probation monitor be appointed and respondent retain, at his own expense, a certified public accountant to review respondent’s operating accounts, file reports with respondent’s probation monitor on a quarterly basis, and monitor timely payment of all state and federal taxes and amounts owed pursuant to respondent’s tax liability.

The ODC filed an objection to the board’s findings and recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

^¿DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992).

The ODC urges us to find respondent’s failure to remit the funds withheld from his employees’ paychecks to the appropriate governmental authorities constituted conversion of funds in violation of Rule 1.15. That rule provides, in pertinent part:

Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third party. For purposes of this rule, the third person’s interest shall be one of which the lawyer has actual knowledge, and shall be limited to a statutory lien or privilege, a final judgment addressing disposition of those funds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

The ODC characterizes the sums withheld by respondent from his employees’ paychecks as being funds in which third parties have an interest. It further argues respondent’s failure to promptly deliver these funds represents a violation of Rule 14-15. Unfortunately, under the unique facts of this case, the analysis of the issue is not as simple as the ODC would have this court believe.

This court has never addressed the issue of whether the failure of an attorney to remit taxes withheld from employees’ paychecks can constitute conversion under the disciplinary rules. However, a review of the jurisprudence of our sister states reveals that in In re: Thebus, 108 Ill.2d 255, 91 Ill.Dec. 623, 483 N.E.2d 1258 (1985), the Supreme Court of Illinois considered a strikingly similar case and concluded the attorney’s actions did not constitute conversion.

In Thebus, the respondent withheld funds from his employees’ paychecks for their income taxes and FICA contributions, and failed to remit these funds to the appropriate government agencies. He was charged in federal court with willfully and knowingly failing to make and file an employer’s quarterly tax return in violation of 26 U.S.C. § 7203. After the respondent pled guilty, a bar disciplinary complaint was filed against him, seeking his disbarment on the ground he committed conversion.

The Supreme Court of Illinois rejected the argument that the respondent’s actions constituted conversion. In reaching this conclusion, the court reviewed the general common law relating to conversion and observed that an action for conversion could not be maintained for money represented by a general obligation or debt. The court explained:

Common to these statements is the idea that the subject of conversion is required to be an identifiable object of property of which the plaintiff was wrongfully deprived. Money may be the subject of conversion, but it must be capable of being described as a specific chattel, although it is not necessary for purposes of identification that money should be specifically earmarked. However, an action for the conversion of funds may not be maintained to satisfy a mere obligation to pay money. (See 89 C.J.S. Trover & Conversion sec. 23 (1955).)
|7Thus the general rule is that conversion will not lie for money represented by a general debt or obligation. It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use.
483 N.E.2d at 1260-61.

Having set forth the general principles of conversion, the court then considered the nature of the funds withheld by the respondent. The court reasoned that under applicable federal law, the employees had no interest in the funds withheld from their paychecks; therefore, the respondent could not have converted funds from the employees. The court stated:

In conjunction with the essentials of conversion, it is necessary to consider the nature of the money withheld from wages by the employer and the effect of such withholding. In United States Fidelity & Guaranty Co. v. United States (10th Cir.1952), 201 F.2d 118, an employer on a construction project withheld taxes from the employees but failed to remit the amount withheld to the Federal government. The court held that when the employer withholds taxes from wages and pays the balance to the employee, the employee has been paid in full and is entitled to a credit or refund of this tax even though the employer has not paid it over to the Federal government. The employer is liable to the Federal government for the amount of the tax. That is a tax liability for which the employer alone is liable to the government as for any other taxes he may owe. Thus in our case the employees have no interest in the money the respondent withheld from their wages, so there has been no conversion of employees’ funds.
483 N.E.2d at 1261.

The court likewise found respondent did not convert an identifiable sum of money belonging to the government:

Although the respondent was under an obligation to remit to the Internal Revenue Service the amount of money withheld as taxes, this obligation is in the nature of a debt to the government. The amount withheld is not a specified identifiable fund capable of being the subject of a conversion. Section 7501 of the Internal Revenue Code (26 U.S.C. §§ 7501 (1976)) provides that when a person is |srequired to collect or withhold any internal revenue tax from another person and pay it over to the government, the amount of the tax shall be held to be a special fund in trust for the United States. Although this statute speaks in terms of a special fund in trust, there is no requirement that the withheld sums be segregated from the employer’s general funds or that they be deposited in a special bank account.
The respondent in our case did not maintain a separate bank account in which the taxes withheld and owed to the Internal Revenue Service were deposited. Likewise, he did not maintain a separate payroll account. Thus, respondent held no identifiable sum of money or fund for the Internal Revenue Service. The money owed to the government did not come into respondent’s hands from any outside source. It was an amount that accrued with each pay period as the respondent wrote the payroll checks from his general checking account for the net amount of wages after taxes, retaining in his checking account the difference between the gross wages and the amount of the check. 483 N.E.2d at 1261-62.

Based on this reasoning, the Supreme Court of Illinois found the respondent did not convert funds and did not discipline him on this basis. However, the court censured the respondent based on his conviction for willful failure to file his employer’s quarterly tax return.

We find the reasoning of Thebus is persuasive and is consistent with the evidence developed in the instant case. The expert testimony produced by respondent demonstrates that respondent had no obligation under the federal tax laws to place the money withheld from his employees’ paychecks into a separate fund, nor did respondent have a fiduciary obligation over these funds. Instead, respondent’s expert testified that respondent had a debt to the appropriate government entities.

This fact alone readily distinguishes the instant case from the typical instance of commingling and conversion, in which the attorney fails to place identifiable funds of a client or third party into a trust account or improperly withdraws these funds. We 1 described this typical scenario in Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986):

Under the disciplinary rules adopted by this court, a lawyer must deposit all funds of clients and funds belonging in part to a client and in part presently or potentially to himself in an identifiable clients’ trust account separate from his operating account. A lawyer may not deposit his own funds in the trust account except for amounts reasonably sufficient to pay bank charges. The lawyer’s portion of any joint funds may not be withdrawn unless the amount is due and undisputed. If requested by a client, a lawyer must pay or deliver to the client funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

By contrast, in the instant case, respondent had no obligation either under the federal law or the disciplinary rules, to deposit the funds withheld from his employees’ paychecks into a separate account. He simply had an obligation, in the form of a debt, to pay these funds to the appropriate governmental authorities.

In sum, under the unique facts of this case, respondent did not convert an identifiable sum of money belonging to a third person. Therefore, the ODC failed to prove a violation of Rule 1.15.

Nonetheless, this finding does not end the inquiry. Although respondent’s actions did not amount to conversion, it is beyond dispute his failure to remit the funds withheld from his employees, as well as his failure to pay his personal taxes, involved elements of dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c). Although respondent’s actions did not occur in the context of the practice of law, his decision to disregard his obligations under federal and state law is an act of dishonesty which falls far below the high standard expected of attorneys admitted to the bar in Louisiana. The sentiments we express in Louisiana State Bar Ass’n v. Bensabat, 378 So.2d 380 (La.1979), apply with equal force to the instant case:

An attorney’s duty to obey and uphold the laws extends to all laws and not merely to those directly connected with his law practice. His Code of Professional Responsibility exhorts him to “refrain from all illegal and morally reprehensible conduct,” with the warning that “[b]ecause of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession.” La. State Bar Assoc. Arts, of Incorp., Art. XVI (Code of Professional Responsibility) Ethical Consideration 1-5, following La. R.S. 87:218. A lawyer’s disciplinary rules, the mandatory rules stating the level below which no lawyer can fall without being subject to disciplinary action, proscribe illegal conduct involving moral turpitude, conduct involving dishonesty, fraud, deceit, misrepresentation or conduct that is prejudicial to the administration of justice. Code of Professional Responsibility, supra, Disciplinary Rule 1 102(A)(3)(5). See ABA Code of Professional Responsibility, Preliminary Statement (1969); Hood, Renewed Emphasis on Professional Responsibility, 35 La. L.Rev. 719, 737 (1975). In sum, an attorney’s admission to the bar is conditioned upon his earnest commitment to uphold and preserve the system of lawful government and to maintain the integrity of his profession and the courts of which he is an officer. Ex parte Wall, 107 U.S. 265, 274, 2 S.Ct. 569, 576, 27 L.Ed. 552 (1882); Louisiana State Bar Association v. Ponder, 340 So.2d 134 (La.1976), on rehearing 340 So.2d 141; Code of Professional Responsibility supra, Ethical Consideration 1-1.

We have not hesitated to suspend attorneys who have failed to comply with their tax obligations. For example, in In re: Stout, 97-0217 (La.5/20/97), 694 So.2d 908, we suspended an attorney for a period of eighteen months, with six months deferred, based on failure to file timely tax returns for eight years. In In re: Thomas, 97-0881 (La.10/10/97), 700 So.2d 490, we imposed a fifteen-month suspension, with six months deferred, on an attorney who failed to file tax returns for two years. These cases demonstrate the baseline sanction for respondent’s misconduct is a suspension.

InAs aggravating factors, we recognize respondent’s prior disciplinary record, his dishonest or selfish motive and a pattern of misconduct. We are unable to discern any mitigating factors from the record. However, we acknowledge that respondent has taken steps to satisfy his outstanding tax obligations.

Under the circumstances of this case, we conclude the appropriate sanction is a suspension from the practice of law for a period of one year, with six months deferred, subject to a two-year period of probation and the conditions articulated by the disciplinary board.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered Jeffrey S. Wittenbrink, Louisiana Bar Roll number 18511, is suspended from the practice of law for a period of one year. All but six months of said suspension shall be deferred, subject to a two-year period of probation and the conditions articulated by the disciplinary board. The deferred portion of the suspension may become ex-ecutory, in the event of misconduct by the respondent during the period of suspension and probation. 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.

JOHNSON, J., dissents and would assign a more severe penalty.

VICTORY, J., dissents and would follow the Board’s recommendation as to penalty.

TRAYLOR, J., dissents and assigns reasons.

JOHNSON, J.,

dissents.

I respectfully dissent in this matter for the reasons assigned by Justice Traylor.

TRAYLOR, Justice,

I am inclined to disagree that respondent’s failure to remit the sums withheld from his employees’ paychecks did not amount to a conversion of funds for purposes of Rule 1.15; however, as determined by the disciplinary board, respondent’s actions, did in fact, violate Rules 8.4(a) and 8.4(c), as they involved elements of deceit, dishonesty, fraud and misrepresentation. In the instant case, aggravating circumstances included respondent’s prior disciplinary record, dishonest or selfish motive and a pattern of misconduct. Although there are no attorney discipline cases in this jurisdiction that involve the failure of an employer to remit withheld funds or to pay payroll taxes, this court has imposed harsher sanctions on attorneys charged with violating Rule 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer) of Rules of Professional Conduct stemming from federal convictions for failure to file personal income tax returns. See, In re: Gaudin, 00-2966 (La.5/7/01), 785 So.2d 763 (suspended from practice of law for a period of 18 months); In re: Thomas, 97-0881 (La.10/10/97), 700 So.2d 490 (suspended from practice for a period of 15 months, all but 9 months deferred and two year period of supervised probation); In re: Stout, 97-0217 (La.5/20/97), 694 So.2d 908 (suspended from practice for a period of 18 months, with 6 months deferred and two years of supervised probation subject to conditions recommended by disciplinary board). In conclusion, I would impose a harsher sanction.

      . In lieu of the imposition of formal charges, in December, 1999, the ODC offered respondent the opportunity to participate in the Practice Assistance and Improvement Committee Program. Respondent was permitted to participate in the ODC's diversion relative to a complaint concerning advance fees paid by a client which were deposited into respondent's operating account for which a proper accounting was not rendered. Supreme Court Rule XIX, § 10A(9) provides a diversion may be used as evidence of prior discipline in a subsequent proceeding.

      . The board recognized there were no attorney disciplinary cases in this jurisdiction that involve the failure of an employer to remit withheld funds or to pay payroll taxes. However, it cited to numerous disciplinary cases where this court imposed sanctions on attorneys charged with violating Rule 8.4(b) (commission of a criminal act adversely reflecting on a lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct stemming from federal convictions for failure to file personal income tax returns. See, In re: Gaudin, 00-2966 (La.5/7/01), 785 So.2d 763; In re: Thomas, 97-0881 (La. 10/10/97), 700 So.2d 490; In re: Stout, 97-0217 (La.5/20/97), 694 So.2d 908.

      . In its formal charges, the ODC charged respondent with a violation of Rule 1.15(a), which relates solely to the duty of an attorney to hold property of a client or third party in a separate fund. However, the arguments of the parties, both in the hearing committee and in this court, address Rule 1.15(b), which relates to conversion. Because respondent did not raise any procedural objections to the discussion of conversion, we assume the parties agreed the reference to Rule 1.15(a) in the formal charges was a typographical error, and that the ODC intended to charge a violation of Rule 1.15(b).

      . We emphasize that this holding is limited to the unique facts of this case, and should not be interpreted as applying in any other context.