author: RAMIREZ, J.

text:
    Fausta LABARERRE, Appellant, v. CERVERA REAL ESTATE, INC., etc., Appellee.
    No. 3D03-1145.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Aragon, Burlington, Weil, Schwiep, Kap-lan & Blonsky, Miami, and David J. Zack, for appellant.
    Goldstein, Tanen & Trench, and Susan Trench, Miami, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Fausta Labarerre appeals the entry of summary judgment in favor of her former employer, appellee Cervera Real Estate, Inc., in which she sought to recover unpaid real estate commissions. We reverse because there are issues of material fact that preclude the entry of summary judgment.

On September 15, 1998, Labarerre and Cervera entered into a contract in which Labarerre “register[ed] ... Frederic Rado, his family business and/or assigns” as her “client” with Cervera. The contract mentions Frederic Rado’s contact with La-barerre in which he solicited her help in the purchase of particular site or “any other” site in the same area. The contract also mentions Frederic Rado’s interest to seek Labarerre’s and Cervera’s help in the development of the “Bel-Air Hotel site.” Labarerre and Cervera also agreed to “split 50/50 the commission received by Cervera ... of whatever business [they] do with this client and others that might arrive through him.”

Frederic Rado’s father, Gabor Rado, eventually developed the Bel-Aire Hotel site into a condominium project. On February 8, 2002, Gabor Rado listed the Bel-Aire Hotel site with Cervera who in turn marketed the project and sold a number of condominiums. Labarerre, however, did not receive any commission from those sales.

Upon review of the entry of summary judgment, we must construe the facts in the light most favorable to the non-moving party. See Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227 (Fla. 3d DCA 2002). If the slightest doubt exists, the entry of summary judgment must be reversed. Id. When the facts are viewed in the light most favorable to La-barerre, there is an issue of fact as to whether Labarerre and Cervera intended the September 15, 1998 contract to govern not only Frederic Rado, but also “his family business and/or assigns,” as well as any business that would arise “through him.” This issue of the intent of the parties as to the September 15, 1998 contract should be properly submitted to the trier of fact for determination, thus precluding the entry of summary judgment. See Birwelco-Montenay, Inc. v. Infilco Degremont, Inc., 827 So.2d 255, 257 (Fla. 3d DCA 2001).

Reversed and remanded for trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, DEEP SEA LOCAL 1408, Appellant, v. Vonceil FISHER and Traveine Howard, et al., Appellees.
    No. 1D03-987.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    Daniel C. Shaughnessy and Robert P. Eshelman, II, of Robert P. Eshelman, II, P.A., Jacksonville, for Appellant.
    Stephen B. Gallagher, Edward L. Birk, Sonya H. Hoener, of Marks Gray, P.A., Jacksonville; David E. Breskin, Claudia Kilbreath, Anne-Marie E. Sargent of Short Cressman & Burgess PLLC, Seattle, WA; Michael F. Coppins of Coppins & Monroe, P.A., Tallahassee, for Appel-lees.
   PER CURIAM.

Appellant seeks review of a non-final order certifying a class. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.130(a)(3)(C)(vi). We conclude that the trial court correctly applied the applicable law, and that it did not abuse its discretion. Accordingly, we affirm. We note that, because the order is interlocutory, it may be revisited by the trial court should circumstances change. Fla. R. Civ. P. 1.220(d)(1).

AFFIRMED.

KAHN, WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Joseph CUPO, Appellant, v. SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, Appellee.
    No. 1D02-3048.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.

      Joseph Hackney, Jr., of Joseph Hackney, Jr., P.A., Miami, for Appellant.
    Donald A. Orlovsky of Kamen & Orlov-sky, P.A., West Palm Beach, and Leopoldo Garcia, Jr., of Angones, Hunter, McClure, Lynch & Williams, P.A., Miami, for Appel-lee.
   PER CURIAM.

In this workers’ compensation appeal, claimant, James Cupo, filed a petition for benefits asserting that he was injured during the course and scope of his employment with the employer, the Seminole Tribe of Florida. The judge of compensation claims dismissed the petition based upon lack of subject-matter jurisdiction over the Tribe. Cupo contends that the ruling violated his right to contract under Article I, Section 10, of the United States Constitution. We affirm, because Cupo failed to show a clear, express and unmistakable waiver of sovereign immunity by the Tribe, or any Act of Congress abrogating the Tribe’s sovereign immunity. See Houghtaling v. Seminole Tribe of Fla., 611 So.2d 1235 (Fla.1993). See also Middletown Rancheria of Pomo Indians v. Workers' Comp.App. Bd., 60 Cal.App.4th 1340, 71 Cal.Rptr.2d 105 (1998).

AFFIRMED.

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.


text:
    Stanley N. GLEIS, Jr., Appellant/Cross-Appellee, v. Elizabeth Hayes GLEIS, Appellee/Cross-Appellant. Elizabeth Hayes Gleis, Appellant, v. Stanley Nicholas Gleis, Jr., Appellee.
    Nos. 1D02-2658, 1D02-4709.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    Lyman T. Fletcher and Jeffrey A. Conner of Fletcher & Conner, Jacksonville, for Appellant/Cross-Appellee in Case No. 02-2658, and for Appellee in Case No. 02-4709.
    William S. Graessle and Thomas J. Fraser, Jr., of William S. Graessle & Associates, P.A., Jacksonville; Carolyn S. Zisser of Carolyn S. Zisser, P.A., Neptune Beach, for Appellee/Cross-Appellant in Case No. 02-2658, and for Appellant in Case No. 02-4709.
   PER CURIAM.

In these two consolidated appeals, the parties seek review of a final judgment of dissolution of marriage and a subsequent order on attorney’s fees. We affirm without discussion as to all issues raised by the parties (whether by appeal or cross-appeal) except one. Although the trial court was asked to determine what items of furniture were inherited by the husband from his parents and to award those items to the husband as non-marital property, it failed to do so. At oral argument, the wife’s counsel conceded that the husband is entitled to all furniture inherited from his parents, as non-marital property. Accordingly, to the extent that the final judgment fails to address such furniture, it is reversed. On remand, the trial court shall determine what items of furniture were inherited by the husband from his parents, and enter an amended final judgment awarding those items to the husband, as non-marital property. Given the extraordinary obligations to pay attorney’s fees already incurred by the parties, this court hopes that the issue can be resolved amicably. However, in the event that it cannot, the trial court is authorized to conduct such further hearings, and to take such additional evidence, as it may deem necessary. In all other respects, the final judgment and subsequent order on attorney’s fees are affirmed.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

KAHN, WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Deron SPEAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2896.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    Steven L. Seliger, Esq. of Garcia and Seliger, Quincy, for Appellant.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Deron Spear, raises two issues on appeal, only one of which requires reversal. Appellant contends that the trial court applied an incorrect standard in denying his motion for new trial, wherein he argued that the jury’s verdict was against the weight of the evidence. Because the trial court’s findings indicate that the court may have applied the sufficiency of the evidence standard instead of the weight of the evidence standard, we reverse appellant’s judgment and remand for the trial court to reconsider the motion. Upon remand, if the trial court concludes that the verdict is against the weight of the evidence, it should grant the motion for new trial. In the event the trial court concludes that the verdict is not against the weight of the evidence, it may again deny the motion and enter a new judgment and sentence accordingly. See Adams v. State, 417 So.2d 826 (Fla. 1st DCA 1982); see also Geibel v. State, 817 So.2d 1042 (Fla. 2d DCA 2002).

AFFIRMED in part; REVERSED in part and REMANDED.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    James Mark GEORGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2551.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    James Mark George, petitioner, pro se.
    Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of the report and recommendation of the special master, the petition seeking a belated appeal of the judgment and sentence imposed on January 3, 2003, in Okaloosa County Circuit Court case number 02-426-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the trial court shall appoint counsel to represent petitioner on appeal.

ERVIN, BOOTH and PADOVANO, JJ., concur.


author: BENTON, J.

text:
    RAYMOND JAMES & ASSOCIATES and Chubb Services Corporation, Appellants, v. Desiree SMITH, Appellee.
    No. 1D02-5231.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.

      Jack A. Weiss, Esquire of Fowler, White, Boggs, Banker, P.A., St. Peters-burg, for Appellants.
    Leslie C. Riviere, Esquire of Harris & Riviere, Tampa, for Appellee.
   BENTON, J.

An employer and its insurance carrier appeal a final order requiring payment of “permanent total disability benefits at the rate of $209.47 per week, plus appropriate supplemental benefits” rather than at the reduced rate the appellants began paying when they accepted Desiree Smith as permanently totally disabled and recalculated the “reverse offset” for social security disability benefits they first took against temporary total disability benefits. We affirm.

The final order chronicles pertinent events with clarity and precision on which we are unable to improve:

2. The claimant, Desiree Smith, sustained a compensable industrial injury on February 5, 1998, when she struck her left ankle on a sliding garage door resulting in reflex sympathetic dystrophy ... to the lower extremity.
3. When injured, the claimant’s average weekly wage ... was $523.97, which produced a compensation rate of $349.33.
4. While the claimant was eligible for temporary total disability (TTD) benefits, she was awarded social security disability ... benefits. The employer/carrier reinstated TTD benefits in May, 2001.
5. Beginning August 15, 2001, the employer/carrier began taking a social security offset of $139.59 so that claimant’s compensation rate became $209.74 per week in TTD benefits. There is no dispute to any of these figures or the employer/carrier’s right to take this offset.
6. When the claimant reached maximum medical improvement ... on April 23, 2002, the employer/carrier administratively accepted her as permanently and totally disabled. Because this was four years after her injury, the claimant was entitled to $69.87 in permanent total disability supplemental benefits in addition to her PTD benefits. See, § 440.15(l)(f)l, Fla. Stat. (1997).
7. However, the employer/carrier recalculated their social security offset, including claimant’s supplemental benefits. Beginning January 16, 2002, they increased their offset to $209.44 which resulted in payments of $139.87 per week.

In response to the reduced payments, Ms. Smith filed the petition for benefits which eventuated in the final order under review.

“Florida is ... considered, in social security terminology, a ‘reverse offset’ state, since the statutory scheme provides that the workers’ compensation carrier takes the offset.” Burks v. Day’s Harvesting, Inc., 597 So.2d 858, 860 (Fla. 1st DCA 1992). In pertinent part, section 440.15(10)(a), Florida Statutes (1997), provides:

Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. s. 423 shall be reduced to an amount whereby the sum of such compensation benefits payable ... for such period to the employee and her or his dependents, had such employee not been entitled to benefits under this chapter, under 42 U.S.C. ss. 402 and 423, does not exceed 80 percent of the employee’s average weekly wage.

This language authorizes a “reverse offset” against compensation benefits without regard to whether the benefits are permanent or temporary. At issue in the present case is whether, once such an offset has been taken against temporary benefits, the amount of the offset is subject to recalculation when temporary payments end and permanent benefits begin.

Without “express[ing] any opinion as to whether supplemental benefits accruing prior to the date the injured worker is accepted as permanently and totally disabled should be included in the initial offset calculations,” City of Clearwater v. Acker, 755 So.2d 597, 602 (Fla.1999) (reh’g denied 2000), our supreme court has made it clear that an offset taken against permanent total disability benefits ought not thereafter be increased in a way that “would prevent injured workers from receiving cost-of-living increases-.” Id. at 600. Our own cases have likewise condemned such recalculations, while including supplemental benefits accruing prior to the date the injured worker is accepted as permanently and totally disabled in the initial offset calculations. See Jackson v. Hochadel Roofing Co., 794 So.2d 668, 671 (Fla. 1st DCA 2001); Fla. Power Corp. v. Van Loan, 764 So.2d 708, 710 (Fla. 1st DCA 2000); Conklin v. Ford, 737 So.2d 602, 602-03 (Fla. 1st DCA 1999), approved, 781 So.2d 1070 (Fla.2001); Cruse Constr. v. St. Remy, 704 So.2d 1100, 1101 (Fla. 1st DCA 1997); Hunt v. Stratton, 677 So.2d 64, 67 (Fla. 1st DCA 1996). We have also held more broadly that the “decision in Hunt prohibits recalculation of an offset based on any cost-of-living increase in a particular benefit. However, it does not forbid recalculation of an existing offset when a claimant who has been receiving one type of collateral benefit (e.g., social security) later begins receiving yet another type of benefit (e.g., disability retirement).” Alderman v. Fla. Plastering, 748 So.2d 1038, 1040 (Fla. 1st DCA 1998), approved, 755 So.2d 604 (Fla.2000). Accord State v. Herny, 776 So.2d 932, 932 (Fla. 1st DCA 1999) (limiting “in-line-of-duty disability retirement and social security disability offsets ... to the initial benefit received by the claimant, excluding any cost-of-living increases,” without regard to when the claimant is accepted as permanently, totally disabled), approved, 781 So.2d 1067 (Fla.2001).

Ms. Smith’s contention, that the decisions in Conklin and Hemy already establish that the transition from temporary to permanent benefits is of no significance for purposes of calculating an offset, is problematic. It is impossible to ascertain from the face of the Conklin opinion whether the offset originally taken in that case was set off against temporary benefits. While it is clear from the Hemy opinion that an offset was originally taken against temporary benefits, the focus of the opinion is the effect of collateral benefits, not supplemental compensation benefits. Even if the question raised in the present case is an open one, however, the prior eases point clearly to our decision today.

We hold that an employer or insurance carrier, having taken offsets against temporary compensation benefits, cannot, upon accepting a claimant as permanently, totally disabled, then recalculate the amount of the offsets to take supplemental benefits into account, and so render accrued supplemental benefits of no practical significance. See Dep’t of Child. & Fams, v. Monroe, 744 So.2d 1163, 1164 (Fla. 1st DCA 1999) (“The purpose of supplemental benefits is to allow for increases in the cost of living.”). The transition from temporary to permanent compensation benefits does not affect the amount of an offset already being taken.

Affirmed.

BOOTH and LEWIS, JJ., concur.


text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. Ashley COATNEY, as Personal Representative of the Estate of Ceasar L. Coatney, Deceased, William H. Moody Sr., and Margaret Moody, Appellees.
    No. 1D03-4474.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    Mark J. Upton of Daniell, Upton, Perry & Morris, P.C., Daphne, Alabama, for Appellant.
    Randle D. Thompson of Kerrigan, Es-tess, Rankin & McCleod, L.L.P., Pensacola; and John L. Fishel of Boggs and Fish-el, Panama City, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of October 28, 2003, the appeal is hereby dismissed for lack of jurisdiction. See generally Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995).

BARFIELD, ALLEN and DAVIS, JJ., concur.


author: PER CURIAM. SAWAYA, C.J.,

text:
    T. P., Mother of D.B., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-3671.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2003.

      Jeffrey L. Dees, Daytona Beach, for Appellant.

      John H. Traphofner, Palatka, for Appel-lee.
   PER CURIAM.

T.P., the mother, appeals the order terminating her parental rights to toddler D.B. The mother asserts that she provided sufficient evidence of substantial changes in her life since the 2000 termination case in which her parental rights to her other five children were terminated to warrant the maintenance of her parental rights to D.B. Accordingly, she asserts that the court erred in terminating her parental rights to D.B. We disagree and affirm.

The mother has given birth to seven children: G.P. (2/7/92); D.J. (12/23/94); E.P. (7/15/96); C.P. (1/10/98); V.P. (she is described as being either six or eleven months old at the time of her death on February 12, 2000); D.P. (7/28/2000); and the child involved in the instant proceedings, D.B. (9/10/01). The 2000 order terminating the mother’s rights to D.B.’s half siblings was entered following the death of V.P. The order in the instant case recites the facts of that 2000 case, summarized as follows.

In 1999 and 2000, the mother lived with Victor Hill, an alcohol abuser with a drug habit. Because the mother’s care for baby V.P. was less than adequate, Hill took on an active role in caring for V.P. Sometime the evening of January 18, 2000, baby V.P.’s tongue was slashed, leaving a cut so serious that the loss of the baby’s tongue was threatened. Only Hill and the mother were present when the baby was cut. There was significant blood loss, yet the mother denied seeing bleeding and did not know what had happened to the baby. She did not inform DCF that Hill lived in the home at any point during DCF’s investigation of the incident. Later that same month, the mother’s apartment burned down. The mother was referred to Children’s Home Society for social services. Again the mother failed to reveal that she was living with Hill.

On February 12, 2000, baby V.P. was killed while in the care of the mother and Hill. The autopsy revealed multiple broken bones in various stages of healing, showing that the baby had been abused for some period of time. The baby would have been in a great deal of pain and would have cried out when moved, yet the mother never sought medical attention for the baby. The medical examiner concluded that the baby died from a fatal blow to the head that fractured her skull, causing a subdural hematoma and massive swelling of the brain. Both Hill and the mother denied knowing what happened to V.P.

The five half siblings were removed from the mother’s custody after V.P.’s death. These children’s bodies also showed they were the victims of ongoing physical abuse and neglect which, the court in that proceeding found, “was clearly deplorable, flagrant and outrageous by a normal standard of conduct.”

The subject of the instant proceeding, D.B., was born seven months after the rendition of the termination order as to the half siblings. DCF removed D.B. from the mother four days after he was born and placed him with his paternal aunt, Stephanie Brinkley, while DCF pursued termination of the mother’s rights to him in the instant case. D.B.’s father was incarcerated during this period.

At the July 31, 2002, termination hearing, testimony regarding the current situation was offered. Ms. Brinkley, testified that she is a counselor for at-risk families and children and is earning her master’s degree in counseling. She encouraged the mother to visit D.B. often, advising the mother of the importance of early bonding. Sadly, the mother’s visits with D.B. became less and less frequent over the ten months that D.B. was in Ms. Brinkley’s care, despite Ms. Brinkley’s advice. The mother admitted not often visiting D.B., stating that it was difficult for her to visit D.B. in someone else’s house because she felt that D.B. should be with her.

The mother testified that she is unemployed and not looking for a job. She “does hair” for people. Her last employment was a short-lived job at Best Packers. Prior to that, the mother was employed for a short period by the O’Carroll House for' Disabled Children. Her employment there was terminated after complaints by an unknown source. The mother is currently facing an eviction action, two child support cases, two county court cases, and one felony charge.

The mother became involved with D.B.’s father, Kevin Brinkley, about two years prior to the hearing. She stated that he has “a little drinking problem,” but the bigger problem is the drugs he does. She stayed with Mr. Brinkley even after D.B. was removed from her care because Mr. Brinkley is “no harm to me.” In fact, even after Mr. Brinkley was released from incarceration (the record does not reveal the reason for the incarceration), she allowed him back in the home with her. The mother admits that Mr. Brinkley has physically abused her. Mr. Brinkley has lived with the mother as recently as the two-month period before the hearing. A week before the hearing, the mother had moved in with her own father.

When asked what she would like to tell the court to assure the court that the abuse and neglect her other children had suffered would not occur again, the mother stated that she had been trying to make changes. She listed those changes as going to church and “staying away from things that don’t mean me any good, by an abusive person.” Explaining that since 2000, she had learned that she could only trust herself to take care of her children, the mother stated that she loves all of her children and that D.B. would be safe in her care.

The mother’s mother, Clara Phillips, testified that the mother was having a difficult time in 2000, but was doing a great job parenting all of her children. When asked how the mother had changed since 2000, Ms. Phillips stated that the pain of losing her children had made the mother a very good parent. Since 2000, the mother had watched several of Ms. Phillips’s grandchildren while at Ms. Phillips’s house and had no problems until DCF stepped in and threatened the mothers of those children. Ms. Phillips described the mother as having “an overprotective spirit.”

Katherine Walburn, an administrator at Putnam Behavioral Health Care, reviewed the paperwork in the termination file. She could not give an opinion specifically about the mother because she did not examine her, but she did testify that some of the things reported as fact by the mother “are extremely disturbing.” Ms. Walburn stated that if a person who exhibited the behaviors reflected in the file had established a new relationship with a person who had a substance or alcohol abuse problem, that would be a sign that nothing about that person had changed. As evidence of a change in a person who had done what was described in the file, Ms. Walburn would look for the ability to maintain a job and a household and look for evidence that the person was able to delay self-gratification and do things for others first, day after day. She inferred from the mother’s diminishing visits with D.B. that the mother had a lack of interest, “which to me goes back to the matter at hand, the interest, the care, the ability to look after and be present for a child and do everything in one’s power to protect it, and make sure it’s okay.”

Following the hearing, the court entered an extensive order terminating the mother’s parental rights. It found that “the mother’s recent activities and current situation do not demonstrate that she has made any significant changes in her life or pattern of behavior” and that “other factors that might have indicated a positive change in the mother’s life are lacking.” In explaining our affirmance of this termination order, we address first the standard of review, then the applicable law, and finally, how the law applies to the above facts.

Section 89.809(1), Florida Statutes (2002), provides, “In a hearing on a petition for termination of parental rights, the court shall consider the elements required for termination. Each of these elements must be established by clear and convincing evidence before the petition is granted.” In In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 719, 133 L.Ed.2d 672 (1996), the Florida Supreme Court observed that in reviewing findings of the trial court made under a “clear and convincing” evidentiary standard:

[0]ur task on review is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute our judgment for that of the trier of fact. Instead, we will uphold the trial court’s finding “[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.”

Id. at 967 (emphasis added) (quoting Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993), review denied, 634 So.2d 625 (Fla.1994)); see also N.L. v. Department of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003) (“Our standard of review is highly deferential. A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.”) (citations omitted).

The petition for termination in the instant case cited two grounds for the termination, sections 39.806(l)(i) and 39.806(1)®, Florida Statutes. Although the court cited both in its termination order, the mother’s arguments generally focus- on section 39.806(l)(i) to the exclusion of section 39.806(1)®. Section 39.806(l)(i) states that parental rights to one child may be terminated when parental rights to a sibling have been terminated involuntarily. The statute essentially creates a presumption sufficient to support termination that is subject to rebuttal by the parents. Department of Children & Families v. J.H.K., 834 So.2d 298, 299 (Fla. 5th DCA 2002) (citing Department of Children & Families v. B.B., 824 So.2d 1000 (Fla. 5th DCA 2002); A.B. v. Department of Children & Families, 816 So.2d 684 (Fla. 5th DCA 2002)). A.B. recognized that a parent facing the termination of his or her parental rights based on the parent’s egregious abuse or neglect of another child must have the right to show that there is no “predictive relationship” between the prior abuse and the prospective abuse:

Otherwise stated, a parent whose rights have been involuntarily terminated as to one child may avoid termination as to another child if he or she comes forward with evidence that the circumstances or pattern of conduct that led to termination of parental rights to the other child cannot serve as a predictor of his or her conduct with the child at issue.

A.B., 816 So.2d at 686. Simply stated, under section 39.806(l)(i), the egregious abuse directed at one sibling is alone sufficient to support the termination of parental rights to another child, “without requiring additional proof to establish a likelihood that remaining children will be abused,” B.B., 824 So.2d at 1007 (citing In the Interest of B.S., 697 So.2d 914 (Fla. 2d DCA 1997), review denied, 707 So.2d 1123 (Fla.1998)), but this presumption may be rebutted by an appropriate showing by the parent.

The mother argues that she provided evidence of substantial changes in her life since the 2000 termination case, but the trial court improperly ignored the evidence of these changes. Furthermore, she asserts that DCF did not provide evidence of the mother’s current status as opposed to her situation in 2000. Thus, she concludes, DCF failed to demonstrate that the mother’s current conditions had not changed or that she was unable to parent D.B.

The mother’s argument is without merit. She, not DCF, had the burden to come forward with evidence “that the circumstances or pattern of conduct that led to termination of parental rights to [her other surviving children] cannot serve as a predictor of ... her conduct with [D.B.].” A.B., 816 So.2d at 686. She failed in her burden. In fact, if anything, her testimony and that of the witnesses testifying on her behalf solidified the conclusion that the mother continues to be unfit to parent. The mother has made no positive changes in her life: She is unemployed; she was evicted from one place; she is facing criminal proceedings; and she not only entered into another relationship with an abusive, substance-abusing man, but she continued that relationship even after D.B. was removed from her, even taking the man back into her life after he was released from incarceration. The mother tries to rely on the testimony of her own mother that she is a good parent. However, given that the grandmother was of the opinion that the mother has always been a great parent, we, like the trial court, give her opinion little credence. When pressed, the grandmother identified the mother as having “an overprotective spirit,” leaving this court to question exactly where that spirit was when the mother’s six other children were being physically abused. Obviously the grandmother’s testimony is not convincing evidence that the mother has changed or that she would or could adequately parent D.B.

The mother also claims that it is DCF’s fault that she has not paid child support for D.B. She suggests that DCF threatened the mothers of her nieces and nephews if they continued to allow the mother to care for their children. The mother also blames DCF for the reports the O’Carroll House received that resulted in the termination of her employment there. However, there is no record evidence that DCF in any way interfered with the mother’s employment.

Next, the mother contends that the trial court’s conclusion that the manifest best interests of D.B. were met by termination was unsupported by competent, substantial evidence. Specifically, the mother argues that the trial court’s conclusion that she lacks the current capacity to safely care for D.B. and fails to have the present ability and disposition to provide the child with food, clothing and medical care ignores all of the evidence of the current conditions of her life. She states that even the removal of D.B. from her care was a “knee-jerk reaction” to the 2000 case.

There is little that can be said in response to the mother’s position given her refusal to acknowledge reality. She either physically abused her other children or allowed them to be abused while in her custody, and they were removed from her care following the tragic and unnecessary death of her own baby, which occurred while the baby was in her care. She has done nothing to improve her circumstances, and in fact, the evidence shows that she has continued down the same path she was on in 2000. Going to church and feeling pain from the loss of her children are not examples of substantial changes that would support any conclusion other than the one reached by the trial court. The termination order is thus affirmed.

We certify conflict with the Fourth District Court’s decision in F.L. v. Department of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003), for the reasons discussed supra. We also certify the following questions to be matters of great public importance:

1. IS SECTION 39.806(1)®, FLORIDA STATUTES, CONSTITUTIONAL, AND IS APPLICATION OF THE REBUTTABLE PRESUMPTION ESTABLISHED IN DEPARTMENT OF CHILDREN & FAMILIES v. B.B., 824 So.2d 1000 (Fla. 5th DCA 2002), AND A.B. v. DEPARTMENT OF CHILDREN & FAMILIES, 816 So.2d 684 (Fla. 5th DCA 2002), NECESSARY TO MAKE IT CONSTITUTIONAL?
2. IS THE LEAST RESTRICTIVE MEANS TEST STILL APPLICABLE IN TERMINATION OF PARENTAL RIGHTS CASES IN LIGHT OF SECTION 39.810, FLORIDA STATUTES?
AFFIRMED.

ORFINGER and MONACO, JJ., concur.

SAWAYA, C.J., concurs and concurs specially, with opinion.

SAWAYA, C.J.,

concurring and concurring specially.

Although I concur in the decision to affirm the order terminating parental rights in this case, I write to express my views regarding the constitutionality of section 39.806(1)®, Florida Statutes (2002), explain why I believe that application of a rebuttable presumption under this statute is wrong, and explain why I believe that the least restrictive means test is no longer applicable in termination proceedings.

Section 39.806(l)(i) provides that parental rights to one child may be terminated when parental rights to a sibling have been terminated involuntarily. The Fourth District Court in F.L. v. Department of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003), has recently held section 39.806(l)(i) unconstitutional. The decision in F.L. directly conflicts with our decision in A.B. v. Department of Children & Families, 816 So.2d 684 (Fla. 5th DCA 2002), and with the recent decision rendered by the Second District Court in In re T.S., 855 So.2d 679 (Fla. 2d DCA 2003), which agreed with the conclusion of this court in A.B. that the statute is constitutional. F.L. may also conflict with the decision of the First District Court in C.W. v. Department of Children & Families, 814 So.2d 488 (Fla. 1st DCA), review denied, 823 So.2d 122 (Fla.2002).

In A.B., this court held that section 39.806(l)(i) is constitutional in light of the Florida Supreme Court’s decision in Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565 (Fla.1991). In Padgett, the court specifically held that prior termination of a parent’s rights to one child may support the termination of the parent’s rights in another child. This court in AN. explained:

What appears implicit in the recognition of neglect or abuse of other children as a ground for termination of parental rights to a different child is the absence of any factor that would evince a break in the chain of demonstrated parental failure. Otherwise stated, a parent whose rights have been involuntarily terminated as to one child may avoid termination as to another child if he or she comes forward with evidence that the circumstances or pattern of conduct that led to termination of parental rights to the other child cannot serve as a predictor of his or her conduct with the child at issue. In light of the supreme court’s opinion in Padgett, in this context, the statute is constitutional.

A.B., 816 So.2d at 686. Subsequently, this court further explained that in light of the holding in A.B., “evidence of a prior termination of parental rights created what was in effect a presumption sufficient to support termination, but which was subject to rebuttal by the parents” who “have the right to show the lack of a predictive relationship between the past abuse of one child and the prospective abuse of another.” Department of Children & Families v. B.B., 824 So.2d 1000, 1008 (Fla. 5th DCA 2002) (footnote omitted); see also Department of Children & Families v. J.H.K., 834 So.2d 298, 299 (Fla. 5th DCA 2002) (citing B.B.). This court did not explain whether this presumption shifted the burden of going forward with the evidence or shifted the burden of proof.

According to the Fourth District Court in F.L., section 39.806(l)(i) is unconstitutional because it improperly “shifts to the parent the burden of showing that current conditions are unlike those of the past and that reunification will not pose a substantial risk of harm to the child.” 849 So.2d at 1124. The court in F.L. reasoned that “[t]o pass constitutional muster Padgett requires the state to prove that reunification with the current child would pose substantial risk to the child.” Id.

I fully concur in the result reached by this court in AB. that section 39.806(l)(i) is constitutional, but respectfully disagree with the creation of a rebuttable presumption in order to make it so. In my view, the provisions of section 39.810, Florida Statutes, make the creation of such a re-buttable presumption unnecessary and make the reasoning in F.L. erroneous. But before I explain further, I emphasize that the Florida Supreme Court has made clear that the best interests of the child trump the very important rights of parents to parent their offspring. In Padgett, the court explained:

In fact, “the only limitation on this rule of parental privilege is that as between the parent and the child the ultimate welfare of the child itself must be controlling.” Id.
While Florida courts have recognized the “God-given right” of parents to the care, custody and companionship of their children, it has been held repeatedly that the right is not absolute but is subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail.
In re Camm, 294 So.2d 318, 320 (Fla.), cert. denied, 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974). While the parent’s interest in maintaining parental ties is essential, the child’s entitlement to an environment free of physical and emotional violence at the hands of his or her most trusted caretaker is more so. The state has a compelling interest in protecting all its citizens — especially its youth. — -against the clear threat of abuse, neglect and death.

577 So.2d at 570. Application of this principle is exemplified by our decision in K.E. v. Department of Children & Families, 816 So.2d 838 (Fla. 5th DCA 2002). In K.E., the mother’s parental rights were terminated. This court, after noting that she did not argue that sufficient grounds had not been established for termination, stated:

Rather, she argues that she deserves another chance because she has successfully completed drug treatment, she has held down a job, and she is close to the children. In response, the DCF suggests that the trial court should be affirmed on this point because termination was in the manifest best interests of the children. We agree with the DCF. See M.B. v. Dep’t of Children and Families, 739 So.2d 716, 717 (Fla. 5th DCA 1999) (“her good intentions for the future do not overcome her past neglect of her children ...”); see also Williams v. Dept. of Health and Rehabilitative Services, 648 So.2d 841 (Fla. 5th DCA 1995) (“a parent’s drug addiction is evidence of prospective neglect”); In the Interest of J.L.P., 416 So.2d 1250, 1253 (Fla. 4th DCA 1982) (“[o]ur sympathy for the mother cannot blind us to the overriding concern for the welfare of the child”).

816 So.2d at 839. The general principle that the welfare of a child is more important and significant than a parent’s right to parent that child has been repeated far too often to justify further citation of authority to support it.

Subsequent to Padgett and in recognition of the overriding importance of protecting the welfare of children, the Florida Legislature in 1994 enacted section 39.4612, Florida Statutes, which was renumbered in 1998 as section 39.810, Florida Statutes. This statute is entitled “Manifest best interests of the child” and provides in pertinent part that “[i]n a hearing on a petition for termination of parental rights, the court shall consider the manifest best interests of the child.” (Emphasis added). Section 39.802(4), Florida Statutes, requires that a petition for termination allege the factual grounds for termination under section 39.806 and that termination is in the manifest best interests of the child under section 39.810.

In every termination case, it is the Department’s burden to establish by clear and convincing evidence that termination of parental rights is in the manifest best interests of the child under section 39.810. L.O. v. Florida Dep’t of Children & Fami ly Servs., 807 So.2d 810 (Fla. 4th DCA 2002); In re K.M., 788 So.2d 306 (Fla. 2d DCA 2001); In re K.C.C., 750 So.2d 38 (Fla. 2d DCA 1999); see also C.C. v. Department of Children & Family Servs., 812 So.2d 520 (Fla. 1st DCA 2002). Failure to properly consider the manifest best interests of the child under section 39.810 constitutes reversible error. See K.O. v. Department of Children & Families, 843 So.2d 353 (Fla. 5th DCA 2003); K.M. v. Department of Children & Families, 795 So.2d 1129 (Fla. 5th DCA 2001). Hence, a termination proceeding is essentially a two-part process: 1) the trial court must find by clear and convincing evidence that one of the grounds in section 39.806 has been established; and 2) the Department must establish by clear and convincing evidence, and the trial court must specifically find in the order of termination, that the manifest best interests of the child requires termination of parental rights under section 39.810, Florida Statutes. Rathburn v. Department of Children & Families, 826 So.2d 521 (Fla. 4th DCA 2002); L.O.; see also A.A. v. Department of Children & Families, 852 So.2d 318 (Fla. 4th DCA 2003); In re T.B., 819 So.2d 270, 273 (Fla. 2d DCA 2002) (noting that manifest best interests finding is an essential predicate to terminate parental rights) (citation omitted); K.C.C., 750 So.2d at 41 (observing that the finding that termination is in the manifest best interests of the child is “an essential predicate for the termination of parental rights”). As the court summarized in N.L. v. Department of Children & Family Services, 843 So.2d 996, 999 (Fla. 1st DCA 2003), “[w]e are obliged to affirm the termination of parental rights if DCFS has met its burden to present clear and convincing evidence of a statutory ground for terminating parental rights, along with clear and convincing evidence that terminating parental rights is in the best interests of the child.” (Citation omitted).

Section 39.810 requires the trial court to consider and evaluate all relevant factors in determining whether termination is in the manifest best interests of the child and specifically lists eleven non-exclusive factors that must be considered in making that determination. The first five factors that must be considered are of particular importance to this discussion, and they are the following:

(1) Any suitable permanent custody arrangement with a relative of the child.
(2) The ability and disposition of the parent or parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under state law instead of medical care, and other material needs of the child.
(3) The capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home.
(4) The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child.
(5) The love, affection, and other emotional ties existing between the child and the child’s parent or parents, siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties.

§ 39.810(l)-(5), Fla. Stat. (2002).

I find these factors particularly significant in light of the reasoning of the Fourth District Court in F.L. and the reasoning of this court in A.B., B.B., and J.H.K. In A.B., B.B., and J.H.K, this court held that section 39.806(l)(i) creates a presumption for termination which may be rebutted if the parent “comes forward with evidence that the circumstances or pattern of conduct that led to termination of parental rights to the other child cannot serve as a predictor of his or her conduct with the child at issue” or, in other words, if the parent establishes factors “that would evince a break in the chain of demonstrated parental failure.” A.B., 816 So.2d at 686. The court in F.L. held that shifting this burden to the parents makes the statute unconstitutional. In my view, such evidence is subsumed within the factors found in section 39.810 that must be considered by the trial court when the Department attempts to meet its burden of establishing by clear and convincing evidence that termination is in the manifest best interests of the child. Therefore, there is no need for the rebuttable presumption established by the decisions from this court. Accordingly, in my view, this court’s reasoning in A.B., B.B. and J.H.K. is wrong and both the reasoning and result reached by the Fourth District Court in F.L. are wrong.

For example, in termination proceedings under section 39.806(l)(i), the termination of parental rights to other children that were abused or neglected by the parents must be established by clear and convincing evidence. Next, the trial court must consider under section 39.810(3), whether those same parents now have the capacity to properly care for the child at issue in the current proceedings “to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home.” A finding by the court that the parents are not capable of doing so necessarily means that the “chain of demonstrated parental failure” continues and that the parents’ prior conduct of abuse and neglect is a good predictor of their treatment of the child at issue. On the other hand, a finding by the trial court that the parents are now capable of properly caring for the child at issue necessarily means that “a break in the chain of demonstrated parental failure” has been established and that the prior abuse and neglect is not a predictor of the parents’ treatment of the child at issue.

Equally important, in the part of the proceeding where the Department must present evidence to comply with its burden of establishing by clear and convincing evidence under section 39.810 that the best interests of the child require termination of parental rights, the parents will have the opportunity, if they wish, to present evidence to show that the manifest best interests of the child do not require termination. The parents may present evidence that they have changed, that they can now properly care for the child, and that what happened in the past is not an accurate predictor of future abuse or neglect. In any event, the burden remains on the Department to establish that termination is in the child’s manifest best interests.

Moreover, a finding that termination is in the manifest best interests of the child must trump any finding that there may be less restrictive alternatives to termination. In other words, if the court finds under section 39.810 that the manifest best interests of the child require termination, because the best interests of the child trumps parental privilege, there can be no finding that there are less restrictive alternatives to termination. On the other hand, if the trial court finds that the manifest best interests of the child require that termination not be granted, there is no need to consider less restrictive means. I, therefore, conclude that application of section 39.810 renders the less restrictive means test obsolete, unnecessary, and meaningless.

The definition of “least restrictive means” supports my view. In B.B., this court held:

The “least restrictive means” test, which comes out of Padgett, is not intended to preserve a parental bond at the cost of a child’s future. Rather, as can be seen from the context of Padgett, it simply requires that measures short of termination should be utilized if such measures can permit the safe re-establishment of the parent-child bond.

824 So.2d at 1009. The “safe re-establishment of the parent-child bond” is one of the factors the trial court must consider under section 39.810, particularly section 39.810(3). Therefore, the least restrictive means test is subsumed in the factors that must be found by clear and convincing evidence to exist under section 39.810. Hence, there is no reason to apply the least restrictive means test any longer and there is no need for a rebuttable presumption in termination cases under section 39.806(l)(i). Because under section 39.810 the Department carries the burden of establishing that termination is in the manifest best interests of the child, the concerns expressed in F.L. are virtually nonexistent and are not sufficient grounds to hold section 39.806(l)(i) unconstitutional.

In the instant case, the final judgment of termination clearly shows that the trial court properly and adequately considered all relevant factors under section 39.810 and concluded that the manifest best interests of the child require termination. There is substantial competent evidence in the record to support this conclusion. Because the Department met its burden of establishing, by clear and convincing evidence, a sufficient ground for termination under section 39.806(1)®, and that the manifest best interests of the child require termination, and because the statute is constitutional, we have no alternative but to affirm. The rebuttable presumption and the least restrictive means test should have no place in the legal analysis leading to this conclusion. Nevertheless, we are bound by prior decisions from this court and so we have applied them.

      . The mother argues that it was error to terminate her parental rights without also terminating the rights of D.B.'s father, Kevin Brinkley. She asserts an "all or nothing” approach to termination of parental rights, arguing that termination of her rights is not the least restrictive means of protecting D.B. given that Mr. Brinkley may never have his rights terminated. There is no merit in this argument. Mr. Brinkley was served with a petition for dependency and termination. The trial court found D.B. dependent based upon Mr. Brinkley's substance abuse problems and the mother’s egregious abuse of D.B.'s half siblings. Whether Mr. Brinkley's parental rights are terminated remains to be determined.

      . Mr. Brinkley's own mother substantiated the testimony that her son has a drinking problem and is abusive.

      . The Fourth District Court in F.L. v. Department of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003), has recently held section 39.806(l)(i) unconstitutional. The decision in
        F.L. directly conflicts with our decision in A.B. v. Department of Children & Families, 816 So.2d 684 (Fla. 5th DCA 2002), and with the recent decision rendered by the Second District Court in In re T.S., 855 So.2d 679 (Fla. 1st DCA 2003), which agreed with the conclusion of this court in A.B. that the statute is constitutional. F.L. may also conflict with the decision of the First District Court in C.W. v. Department of Children & Families, 814 So.2d 488 (Fla. 1st DCA), review denied, 823 So.2d 122 (Fla.2002).


author: PETERSON, J. GRIFFIN, J.,

text:
    John Michael PAGLIUCA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3608.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2003.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

John Michael Pagliuca challenges the trial court’s imposition of $250.00 for the costs of prosecution and the requirement that he enroll in a probationers’ educational growth program pursuant to a special condition of his community control.

Section 938.27(1), Florida Statutes (2002), allows the trial court to impose the costs of prosecution “if requested and documented but in Pagliuca’s ease, the State presented no documentation. Consequentially, we strike that portion of his sentence assessing the $250.00 for costs of prosecution and remand to the trial court for reimposition of the fees only if the State provides the necessary documentation. See, e.g., Hill v. State, 845 So.2d 310 (Fla. 2d DCA 2003), and citations therein.

The requirement that Pagliuca enroll in a probationers’ educational growth program as a special condition is neither statutorily authorized nor contained within the standard conditions of community control. Therefore, it must be orally pronounced at sentencing in order to be validly imposed. § 948.03(1), Fla. Stat. (2002); e.g., Queen v. State, 832 So.2d 956 (Fla. 5th DCA 2002). Since special condition nineteen was not orally pronounced, it must be stricken. Harris v. State, 698 So.2d 343 (Fla. 5th DCA 1997).

We strike the assessment of $250.00 costs of prosecution and remand to the trial court with directions that such costs may be reimposed only after the State produces the required documentation. Special condition nineteen is stricken because it was not orally pronounced at the time of sentencing.

REVERSED AND REMANDED.

SHARP, W., J., concurs.

GRIFFIN, J., concurs in part, dissents in part.

GRIFFIN, J.,

concurring in part; dissenting in part.

I agree that the assessment for “cost of prosecution” must be stricken. I disagree that we should remand for a second hearing. There was a failure of proof and that should be the end of it.


author: THOMPSON, J. .

text:
    Percell Anthony WISE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3260.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2003.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. MeCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J. .

Percell Anthony Wise appeals his convictions for robbery with a deadly weapon and aggravated flight. We affirm.

Wise argues that the trial court erred by admitting into evidence the statement he made to police that he had smoked crack cocaine on the evening that the charged offenses were committed and that the events of the evening were hazy. An erroneous admission of collateral crimes is presumptively harmful, and is only harmless “if it can be said beyond a reasonable doubt that the verdict could not have been affected by the error.” Miller v. State, 804 So.2d 609 (Fla. 3d DCA 2002) (quoting Czubak v. State, 570 So.2d 925, 928 (Fla.1990)).

Evaluating harmless error requires more than a mere totaling of testimony, and, in most instances, more than a mere reading of a portion of the record in the abstract. It entails an evaluation of the impact of the erroneously admitted evidence in light of the overall strength of the case and the defenses asserted.... It must, in most cases, be evaluated through the examination of the entire trial transcript.

Steward v. State, 619 So.2d 394, 397 (Fla. 1st DCA 1993).

After a review of the record, we conclude that if there was any error in admitting Wise’s statements, the error was harmless. First, the investigating officer testified at trial that the person on the store’s surveillance videotape of the robbery looked the same as Wise. When Wise was arrested, he was without a shirt and wearing knee-length shorts — a description given by the witnesses. Furthermore, although witnesses who were inside the store gave differing descriptions of the robber’s vehicle, the witnesses outside the store testified that the suspect fled in a burgundy-colored van with a temporary tag and a “Phil Bettis” sticker. When Wise was apprehended, he was driving a red van with a temporary tag''and “Phil Bettis” sticker. Furthermore, Wise told the police upon arrest that he was glad it was over, did not- mean to hurt anyone, and usually did not do things like that. Additionally, when asked if he robbed the store, Wise responded, “Well, whatever they said I did, I guess I did it.”

Wise’s convictions are AFFIRMED.

GRIFFIN and MONACO, JJ., concur.


text:
    Maria SULLO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2653.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Brothers v. State, 853 So.2d 1124, 1125 (Fla. 5th DCA 2003) (“When the evidence against a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt”); see also Woods v. State, 733 So.2d 980, 985 (Fla.1999) (stating that in determining whether to grant a motion for judgment of acquittal, conflicting evidence must be viewed in the light most favorable to the state, and if there is competent, substantial evidence supporting a jury’s verdict, the verdict will not be overturned on appeal).

AFFIRMED.

GRIFFIN, THOMPSON and TORPY, JJ., concur.


text:
    Michael NEVERS, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D03-4770.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for petitioner.
    Enoch J. Whitney, General Counsel, and Kathy A. Jimenez, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Department of Highway Safety and Motor Vehicles v. Gordon, 860 So.2d 469, 2003 WL 22464026 (Fla. 1st DCA Oct.31, 2003).

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.


text:
    Lonnie Josh SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2318.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    Lonnie Josh Smith, petitioner, pro se.
    Charlie Crist, Attorney General, Karen M. Holland and Shasta W. Cruse, Assistant Attorneys General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence imposed on December 5, 2002, in Okaloosa County Circuit Court case number 01-CF-001635-002, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.


text:
    James S. GILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0217.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.

      Nancy A. Daniels, Public Defender; and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The State’s information charged Appellant with driving a motor vehicle on or around February 27, 2002, while his driver’s license was permanently revoked, in violation of section 322.341, Florida Statutes. Appellant filed a motion to dismiss the information on the ground that the statute on which he was to be prosecuted is unconstitutional. Specifically, the motion alleged that sections 2 and 13 of chapter 98-223, Laws of Florida (which created § 322.341, Fla. Stat.), embrace two distinct subjects and lack any natural or logical connection, thereby violating the “single subject” provision in Article III, section 6, of the Florida Constitution. The motion was denied on the authority of Sawyer v. State, 819 So.2d 966 (Fla. 4th DCA 2002) (finding chapter 98-223 constitutional), which certified conflict with Department of Highway Safety and Motor Vehicles v. Critchfield, 805 So.2d 1034 (Fla. 5th DCA 2002) (affirming final judgment finding chapter 98-223 unconstitutional under “single subject” provision).

Appellant entered a plea of nolo contendere, reserving the right to appeal the denial of his motion to dismiss. He agreed to serve three years’ probation, subject to certain conditions not relevant to this appeal. Subsequently, the Supreme Court of Florida decided Florida Department of Highway Safety and Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003), holding that section 2 of chapter 98-223 (involving assignment of bad check debt to a private debt collector) “has no natural or logical connection to the law’s subject matter, which is driver’s licenses, operation of motor vehicles, and vehicle registrations.” Id. at 785. The Court found that chapter 98-223 violates the state constitutional “single subject” provision. Id. at 786.

Because Appellant cannot lawfully be charged under an unconstitutional statute, we reverse the order denying his motion to dismiss and remand for the entry of an appropriate order consistent with the supreme court’s opinion in Critchfield.

REVERSED and REMANDED, with instructions.

BROWNING, POLSTON and HAWKES, JJ. concur.

      . We are mindful of the general rule “that a single subject violation is cured when the Legislature reenacts the provision as part of the biennial adoption of the Florida Statutes.” Tormey v. Moore, 824 So.2d 137, 142 (Fla.2002). The relevant reenactment occurred and became effective upon publication on May 21, 2003. See ch. 03-25, § 1, at 206, Laws of Fla. Section 322.341, Florida Statutes, the provision under which Appellant was charged, was added pursuant to chapter 98-223, § 13, Laws of Florida, effective July 1, 1998. Accordingly, only those persons like Appellant who were subject to the sanctions created by chapter 98-223, § 13, i.e., committed their offenses on or after July 1, 1998, but before the reenactment became effective on May 21, 2003, will be entitled to relief under Critchfield. See Tormey, 824 So.2d at 143.


author: BROWNING, J.

text:
    Michael Alan DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0149.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    Nancy A. Daniels, Public Defender; and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Upon the State’s concession of error, we vacate the excessive sentence on Count II and remand for the trial court to impose a sentence within the time limits allowed for a third-degree felony and to correct the sentence/probation orders accordingly. § 775.082(3)(d), Fla. Stat. (2002). The State charged Appellant with fleeing or attempting to elude a law-enforcement officer (Count I), a second-degree felony pursuant to section 316.1935(3), Florida Statutes (2002); felony DUI (Count II), a third-degree felony pursuant to section 316.193, Florida Statutes (2002); and misdemeanor driving without a valid driver’s license (Count III), a violation of section 322.03(1), Florida Statutes (2002). Appellant entered a “straight up” plea of nolo contendere to the three counts and stipulated to having five prior DUI convictions. The trial court orally adjudicated Appellant guilty of the three counts and sentenced him to concurrent terms of 15 years’ incarceration on Counts I and II, to be suspended on a day-to-day basis, with Appellant to spend 5 years in prison and 5 years on probation. However, the written judgment/sentence reflects concurrent terms of 20 years’ incarceration on the felony counts, with Appellant to serve 5 years in prison and 5 years on probation.

Appellant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) contending that the written sentence should be made to conform to the orally pronounced sentence; and that the maximum penalties for Counts I and II are 15 years and 5 years, respectively. § 775.082(3)(c) & (d), Fla. Stat. A successor judge corrected the sentence in Count I to 15 years but did not correct the Count II sentence or the corresponding probation form.

Accordingly, we VACATE the sentence in Count II and REMAND for the trial court to impose an appropriate sentence, to correct the probation order in Count II, and to provide for prior prison credit.

POLSTON and HAWKES, JJ., concur.


text:
    GACS INCORPORATED, Ryder Automotive Operations, Inc., d/b/a Delavan, Ryder Automotive Carrier Group, Inc., and Ryder Automotive Carrier Services, Inc., Petitioners, v. Shawn W. HAGAR, Respondent. GACS Incorporated, Ryder Automotive Operations, Inc., d/b/a Delavan, Ryder Automotive Carrier Group, Inc., and Ryder Automotive Carrier Services, Inc., Petitioners, v. John D. Hicks, Respondent. GACS Incorporated, Ryder Automotive Operations, Inc., d/b/a Delavan, Ryder Automotive Carrier Group, Inc., and Ryder Automotive Carrier Services, Inc., Petitioners, v. Robert N. Churchville and Joyce Churchville, his wife, Respondents.
    Nos. 1D03-2965 to 1D03-2970.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    Stephen H. Grimes, of Holland & Knight LLP, Tallahassee; Timothy J. Conner, Michael L. Buckner and Michael G. Tanner, of Holland & Knight LLP, Jacksonville, for petitioners.
    Floyd L. Matthews, of Spohrer, Wilner, Maxwell & Matthews, P.A., Jacksonville, for respondents.
   PER CURIAM.

Following the revocation of defense counsel’s pro hac vice status of David E. Larson and the denial of their motions to disqualify Judge Jean Johnson from presiding in the three trial court cases, GACS Incorporated and Ryder Automotive Operations, Inc. petition this court for prohibition relief and writs of certiorari to review the order revoking Mr. Larson’s pro hac vice status in each case. We conclude that the motions for disqualification were timely and facially sufficient; therefore, we grant the petitions for writ of prohibition. See Fla. R. Jud. Admin. 2.160; Dura-Stress, Inc. v. Law, 634 So.2d 769 (Fla. 5th DCA 1994). We direct Judge Johnson to enter orders of disqualification and request that the Chief Circuit Judge assign a new judge to each of these cases.

We also deny the petitions for certiorari without prejudice to allow petitioners to seek pro hac vice status of Mr. Larson with the newly assigned judge in each case.

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.

      . The three Writ of Prohibition cases and the three Writ of Certiorari cases are hereby consolidated for purposes of this opinion.

      . We note that Mr. Larson must follow the procedure in Florida Rule of Judicial Administration 2.061, Foreign Attorneys, and he is not necessarily disqualified from eligibility for any reason listed under subsection (a) of that rule.


text:
    David PRICHARD, Petitioner, v. The BOARD OF REGENTS FOR The STATE UNIVERSITY SYSTEM OF FLORIDA, et al., Respondents.
    No. 1D03-3511.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    Paula L. Walborsky, Marie M. Presley, and Mary A. Kane of Walborsky, Presley and Kane, P.A., Tallahassee, for petitioner.
    No appearance for respondents.
   PER CURIAM.

David Prichard seeks mandamus relief from this court, complaining that although the trial court orally granted a directed verdict on his discrimination claim in March 2003, it has not entered a written order, and thereby has frustrated his right to seek appellate review. There has been no timely response to our order to show cause why the relief sought by petitioner should not be granted, and as a consequence, no showing has been made that there is some valid basis for the trial court to withhold issuance of a written order. We therefore determine that mandamus relief is warranted and grant Prichard’s petition. See State v. Robinson, 813 So.2d 1072 (Fla. 1st DCA 2002). The trial court is directed to promptly render a written order memorializing its ruling on the motion for directed verdict and entering final judgment thereon.

PETITION FOR WRIT OF MANDAMUS GRANTED.

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.


author: JjPER CURIAM.

text:
    In re Armer Anumihe BRIGHT.
    No. 2002-OB-2313.
    Supreme Court of Louisiana.
    Oct. 31, 2003.
    Rehearing Denied Jan. 9, 2004.
    Armer A. Bright, Amy E. Counce, Baton Rouge, for Applicant.
    Harry J. Philips, Jr., Baton Rouge, Daniel A. Webb, New Orleans, Charles B. Plattsmier, Chief Disciplinary Counsel, for respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

JjPER CURIAM.

Petitioner, Armer Anumihe Bright, successfully passed the essay portion of the July 1999 Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) refused to certify his good moral character because criminal charges were then pending against him for insurance fraud (five felony counts). We deferred consideration of petitioner’s application for admission until the criminal case was concluded. On July 17, 2000, pursuant to a plea agreement, petitioner pleaded guilty to one count of misdemeanor theft. He was sentenced to six months imprisonment, suspended, subject to a two-year period of unsupervised probation with special conditions, including the requirement that he pay restitution to Travelers Insurance Company in the amount of $6,958.84 and that he refrain from seeking admission to the bar for a period of two years. Petitioner subsequently requested that he be permitted to withdraw his petition for admission to the practice of law. We granted his motion on October 11, 2000. In re: Bright, 99 3022 (La.10/11/00), 770 So.2d 335.

Two years later, on September 5, 2002, petitioner applied for the appointment of a commissioner in the instant matter. On October 16, 2002, we appointed a commissioner to take evidence and report to this court whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar. After | ¡.hearing evidence in the case, the commissioner filed his report with this court, recommending petitioner be denied admission to the practice of law except upon his participation “in a mentor program.” Both petitioner and the Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(E).

Accordingly, it is ordered that the application for admission is denied.


text:
    BULL RUN RANCH, L.L.C. v. Scott G. PETRIE, M.D.
    No. 2003-CC-1745.
    Supreme Court of Louisiana.
    Oct. 31, 2003.

      CALOGERO, C.J., and VICTORY and WEIMER, JJ., dissent from writ denial and assign reasons.
   | t CALOGERO, C.J., and VICTORY and WEIMER, JJ.,

dissenting from the writ denial.

We would grant the writ. In our view, the trial court erred in excluding the accountant’s testimony for the following reasons:

1) The accountant is a fact eyewitness to the discussions and agreements at issue in the lawsuit.
2) Since the accountant was present with both plaintiff and defendant, any statements he may have heard would not be confidential communications under Louisiana Code of Evidence art. 415.
3) The trial court can limit the accountant’s testimony to non-eonfidential matters.


text:
    In Re James Wallace SPRADLING, II.
    No. 2003-B-2381.
    Supreme Court of Louisiana.
    Nov. 13, 2003.
    Rehearing Denied Dec. 3, 2003.
   ORDER

Considering the recommendation of the hearing committee in this matter,

IT IS ORDERED that James Wallace Spradling, II, Louisiana Bar Roll number 22161, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


author: hPER CURIAM.

text:
    In re Remy F. GROSS, II.
    No. 2003-B-2268.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Remy F. Gross, II, a suspended attorney.

UNDERLYING FACTS

In 1987, respondent handled a legal matter for Joyce LeBoeuf. During the representation, respondent asked Mrs. LeBoeuf to loan him $25,000 for a business venture in which he was involved. Respondent told Mrs. LeBoeuf that he would repay the loan with interest in three months. On September 25, 1987, Mrs. LeBoeuf gave respondent a check in the amount of $25,000. Respondent failed to reduce to writing the terms of the loan transaction. He also failed to advise Mrs. LeBoeuf that, prior to entering into the agreement, she was entitled to seek the advice of independent counsel in the transaction. Respondent did not repay the loan to Mrs. Le-Boeuf. In September 2000, Mrs. LeBoeuf filed a complaint against him with the ODC.

| .DISCIPLINARY PROCEEDINGS

Formal Charges

On May 31, 2002, the ODC filed one count of formal charges against respondent, alleging that his conduct in the LeBoeuf matter violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.8(a) (conflict of interest/prohibited transactions between a lawyer and a client), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The formal charges were served upon respondent by certified mail received on June 6, 2002.

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Hearing Committee Recommendation

Noting the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3), the hearing committee agreed that respondent violated the Rules of Professional Conduct as charged. After consideration of the ODC’s submission in response to the deemed admitted order, the committee concluded that respondent had an actual conflict of interest with Mrs. LeBoeuf, and that he does not intend to repay the money he [^borrowed from his client. Considering respondent’s pattern of misconduct in taking advantage of the attorney-client relationship, and the other aggravating factors present, including respondent’s prior disciplinary offenses, dishonest or selfish motive, substantial experience in the practice of law (admitted 1962), and indifference to making restitution, the committee recommended that respondent be disbarred.

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

Disciplinary Board Recommendation

The disciplinary board agreed that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3), and found respondent violated Rules 1.8(a) and 8.4(a) of the Rules of Professional Conduct. The board found that standing alone, the deemed admitted facts are insufficient to establish that respondent engaged in dishonest or deceitful conduct; accordingly, the board declined to find a violation of Rule 8.4(c). The board determined that respondent knowingly violated duties owed to his client, and that he caused damage to his client by depriving her of funds for more than fifteen years. The board agreed the record does not support a finding of any mitigating factors, and generally concurred in the aggravating factors cited by the committee. Accordingly, the board recommended respondent be disbarred. The board also recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

14Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

The deemed admitted facts support the conclusion that respondent borrowed $25,000 from Mrs. LeBoeuf without complying with the safeguards afforded her by the Rules of Professional Conduct. Respondent borrowed the money in 1987 and as of the date of the filing of the formal charges — -some fifteen years later— had not repaid one penny of the loan. Such conduct violates the Rules of Professional Conduct as charged in the formal charges. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

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).

Respondent has demonstrated a pattern and practice of entering into improper business transactions with his clients. The baseline sanction for this misconduct is clearly disbarment. There are no mitigating factors present in this case; however, significant aggravating factors exist, the most serious of which are respondent’s prior disciplinary offenses, substantial experience in the practice of law, and indifference to making restitution. Under these circumstances, there is no reason to deviate from the baseline sanction. Respondent must be disbarred.

| .DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Remy F. Gross, II, Louisiana Bar Roll number 6354, be disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall pay restitution to Joyce LeBoeuf in the amount of $25,000 plus legal interest. 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.

      . In 1992, respondent was suspended from the practice of law for two years for entering into improper business transactions with two clients, misleading a third party, and commingling client funds. In re: Gross, 594 So.2d 1304 (La.1992). In 1993, this court accepted a petition for consent discipline extending respondent's two-year suspension for an additional year. In re: Gross, 617 So.2d 1173 (La.1993). Respondent did not seek reinstatement following his suspension, and accordingly, he remains suspended from the practice of law.

      . The return receipt card was signed by respondent personally.

      . Respondent filed nothing for the hearing committee's consideration.

      . In addition to the suspensions previously discussed, respondent was publicly reprimanded by this court in 1991 for failing to place client funds into a trust account, entering into an improper business transaction with a client, and charging an excessive legal fee. Louisiana State Bar Ass’n v. Gross, 576 So.2d 504 (La.1991).


text:
    In re Jerry K. SCHWEHM.
    No. 2003-B-2444.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

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

UNDERLYING FACTS AND PROCEDURAL HISTORY

Respondent assumed the office of Justice of the Peace for the Eighth Ward of St. Tammany Parish in December 1990. In 1994, the legislative auditor conducted an audit of respondent’s office. The audit revealed that although respondent had assessed and collected $6,025 in litter fines through the Justice of the Peace Court, he had not remitted the fitter fines to the St. Tammany Parish Police Jury. Furthermore, the audit revealed that respondent charged fees of at least $4,060 for the fifing of peace bonds, in violation of state law. In June 1994, a St. Tammany Parish grand jury returned a six-count indictment charging respondent with malfeasance in office, unauthorized use of movables (namely funds in excess of $1,000), and theft of money of a value of over $500.

In May 1996, a jury convicted respondent of two counts of malfeasance in office, violations of La. R.S. 14:134. In March 1997, respondent was sentenced to serve five years at hard labor and fined $1,500. The last two years of the sentence were suspended, and respondent was placed on probation for five years following his | ¡.release, with special conditions. Respondent received an automatic first offender pardon effective March 7, 2002.

DISCIPLINARY PROCEEDINGS

In May 1997, the ODC filed one count of formal charges against respondent, alleging that his conviction constituted a violation of the following provisions of the Louisiana Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). In June 1997, respondent answered the formal charges and admitted his conviction, but requested that the disciplinary proceeding be held in abeyance pending the finality of his conviction.

Respondent’s conviction became final in March 2000. On February 6, 2002, this court placed respondent on interim suspension based upon his conviction. In re: Schwehm, 02-0188 (La.2/6/02), 807 So.2d 829.

Hearing Committee Recommendation

This matter proceeded to a hearing on the merits of the formal charges on May 31, 2002. At the outset, the committee observed that because respondent’s felony conviction is final, the only issue to be considered is the appropriate discipline to be imposed in this case. The committee noted the seriousness of respondent’s laconviction, particularly the fact that the criminal charges arose when respondent was serving in public office. Nevertheless, considering respondent’s testimony in mitigation, the committee felt that a reasonable period of suspension, rather than disbarment, is appropriate. Accordingly, the committee recommended that respondent be suspended from the practice of law for two years.

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

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board found respondent violated the Rules of Professional Conduct as charged in the formal charges. Because an element of the crime of malfeasance in office is intentional or knowing conduct, the board concluded respondent intentionally and knowingly violated duties owed to the public.

As aggravating factors, the board recognized respondent’s dishonest or selfish motive, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted |41974). In mitigation, the board recognized the absence of a prior disciplinary record, respondent’s personal and emotional problems, cooperative attitude toward the disciplinary proceedings, and the imposition of other penalties or sanctions.

In determining an appropriate sanction for respondent’s misconduct, the board considered the ABA’s Standards for Imposing Lawyer Sanctions. Standard 5.11 provides for disbarment when: (a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice law. On the other hand, Standard 5.12 provides for suspension “when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.” The board noted that although the statute defining malfeasance in office does not include any of the necessary elements listed in Standard 5.11(a), respondent’s actions can be classified as intentional misconduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on his fitness to practice. Respondent’s misconduct included the intentional failure to remit litter fines as required by state law and the charging and collecting of unauthorized fees; in both instances, respondent’s actions involved dishonesty, fraud, deceit, or misrepresentation. The board concluded that respondent’s illegal acts clearly show a failure to maintain the personal honesty and integrity required by the legal profession and the legal system, and hence disbarment is the appropriate sanction for ^respondent's misconduct. See also In re: Bankston, 01-2780 (La.3/8/02), 810 So.2d 1113.

Based on this reasoning, the board recommended that respondent be disbarred. The board further recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

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

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

The record demonstrates that respondent was convicted of two felony counts of malfeasance in office, violations of La. R.S. 14:134. The underlying facts of this conviction reveal that respondent knowingly and intentionally failed to remit litter fines collected through his office and charged and collected unauthorized fees for the filing of peace bonds. The baseline sanction for this conduct is clearly disbarment.

|fiThe mitigating factors found by the hearing committee are compelling. Furthermore, respondent’s actions did not involve the practice of law or harm to any client. Nevertheless, respondent was an elected public official at the time of the misconduct, and for that reason alone, his actions are particularly egregious. In In re: Bankston, 01-2780 (La.3/8/02), 810 So.2d 1113, we held that an attorney occupying a position of public trust is held to even a higher standard of conduct than an ordinary attorney. See also In re: Naccari, 97-1546 (La.12/19/97), 705 So.2d 734; In re: Huckaby, 96-2643 (La.5/20/97), 694 So.2d 906. Under these circumstances, we see no reason to deviate from the baseline sanction of disbarment.

Accordingly, we will accept the disciplinary board’s recommendation that respondent be disbarred, retroactive to the date of his interim suspension.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Jerry Kenneth Schwehm, Louisiana Bar Roll number 11859, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. 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.

      . On September 24, 1999, the court of appeal affirmed respondent's conviction and sentence. State v. Schwehm, 97-1544 (La.App. 1st Cir.9/24/99), 754 So.2d 264. This court denied respondent's application for supervisory writs on March 31, 2000. State v. Schwehm, 99-2964 (La.3/31/00), 759 So.2d 68.

      . Respondent's wife was diagnosed with a recurrence of terminal breast cancer in March 1990, three months after respondent took office as a justice of the peace. Respondent was his wife's primary care giver during the last two years of her life, and he admitted that as a result, he devoted very little attention to his elected office. After his wife died, respondent became very depressed and attempted suicide several times. Respondent sought treatment for his depression and today no longer requires medication.

      . See La. R.S. 14:134, which provides in pertinent part as follows:
      Malfeasance in office is committed when any public officer or public employee shall:
      (1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
      (2) Intentionally perform any such duty in an unlawful manner; or
      (3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.


text:
    In re H. Edward ELLZEY.
    No. 2003-B-2981.
    Supreme Court of Louisiana.
    Nov. 26, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IT IS ORDERED that the Petition for Consent Discipline be accepted and that H. Edward Ellzey, Louisiana Bar Roll number 5339, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend one full day of Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.