text:
    BROWARD SHERIFF’S OFFICE and Broward County Risk Management Division, Appellants, v. Emery Dennis HOWELL, Appellee.
    No. 1D04-1819.
    District Court of Appeal of Florida, First District.
    July 30, 2004.
    Edward A. Dion, County Attorney for Broward County, Andrew J. Meyers, Chief Appellate Counsel, and James D. Rowlee, Assistant County Attorney, Ft. Lauder-dale, for appellants.
    No appearance for appellee.
   PER CURIAM.

As the order sought to be reviewed is neither a final nor an appealable nonfinal order, this appeal is dismissed for lack of jurisdiction.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Interest of D.A.G. and T.G., children. D.Z. and D.P., Appellants, v. Department of Children and Family Services, Appellee.
    No. 2D03-4375.
    District Court of Appeal of Florida, Second District.
    July 30, 2004.
    Eugene L. Beil of Beil & Hay, P.A., Hudson, for Appellants.
    Bernie McCabe, State Attorney, and Andrea Lasker Bradford, Assistant State Attorney, Clearwater, for Appellee.
   PER CURIAM.

D.Z. and D.P. (the Relatives), the maternal great-grandfather and the maternal grandmother, respectively, of D.A.G. and T.G., seek review of the trial court’s nonfi-nal order denying their motion for visitation. We do not have jurisdiction to review this nonfinal order as an interlocutory appeal. See Fla. R.App. P. 9.130(a)(3). However, we elect to treat the Relatives’ timely filed notice of appeal as a petition for writ of certiorari. See Fla. R.App. P. 9.040(c). We deny the petition. See Sullivan v. Sapp, 866 So.2d 28 (Fla.2004); A.D. v. KS. (In re S.D.), 869 So.2d 39 (Fla. 2d DCA2004).

Petition denied.

DAVIS, CANADY, and WALLACE, JJ., concur.


author: KLEIN, J.

text:
    Robert Lee BRIDGES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-755.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    Elaine L. Thompson of the Law Office of Elaine L. Thompson, P.A., Lithia Springs, GA, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of aggravated battery with a deadly weapon. He argues that the trial court should have instructed the jury that the state was required to prove the absence of his self-defense claim beyond a reasonable doubt. In addition, he contends that the court erred in not instructing the jury as to the justifiable use of non-deadly force. Neither issue was raised in the trial court, however, and we affirm.

It was undisputed that appellant struck the victim with a machete, knocking him unconscious. He received a cut which required twenty-two stitches to close. Appellant testified that he knew the victim owned a gun, that they had words on the morning of the incident, and that he struck the victim in self-defense, because he was afraid that the victim was going to shoot him. Other than the testimony of the defendant, there was no evidence that the victim had a gun or that the victim provoked the attack.

The court instructed the jury that the justifiable use of force likely to cause death or great bodily harm was a defense to the charged crime. Appellant did not request, and the trial court did not give, an instruction on the justifiable use of non-deadly force. Such an instruction would have been necessary, if requested, because whether the force used by the defendant was deadly or non-deadly was a jury issue. Williams v. State, 727 So.2d 1062 (Fla. 4th DCA 1999). Unlike the failure to instruct on an essential element of a crime, however, the failure to instruct on a defense cannot be raised for the first time on appeal. Sochor v. State, 619 So.2d 285 (Fla.1993) (failure to give voluntary intoxication instruction not fundamental error); Holiday v. State, 753 So.2d 1264 (Fla. 2000).

Appellant also argues that the trial court committed fundamental error in not instructing the jury that the state had the burden to prove beyond a reasonable doubt the absence of the defendant’s claim that he acted in self-defense.

The court instructed that “the Defendant cannot justify the use of force likely to cause death or great bodily harm” unless he used every possible means to avoid the danger. It also instructed the jury that “the Defendant cannot justify the use of force” if after arming himself he renewed the difficulty with the victim. It further instructed the jury that, if it had reasonable doubt on the issue of whether the defendant was justified in using force, it should find him not guilty.

Our standard jury instructions, from which the above instructions were taken, do not include an instruction that the state has the burden to prove beyond a reasonable doubt the absence of self-defense, where self-defense is raised. Nor has appellant cited any Florida case which would require the giving of such an instruction. Appellant relies on cases from other jurisdictions which do require such an instruction.

Florida does require instructions involving the state’s burden as to two affirmative defenses, entrapment and insanity. It has been held, however, that the failure to give such an instruction does not violate due process and is therefore not fundamental error. Smith v. State, 521 So.2d 106 (Fla.1988); Holiday v. State, 753 So.2d 1264 (Fla.2000); Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002).

Appellant also argues that the court should not have allowed the testimony of a witness on rebuttal who had not previously been disclosed to the defense. In this case, however, the witness was necessary to rebut unexpected testimony presented by the defense, which the state could not have anticipated, and there was accordingly no requirement for disclosure. Grant v. State, 474 So.2d 259 (Fla. 1st DCA 1985).

Affirmed.

WARNER and TAYLOR, JJ., concur.

      . State v. Warren, 9 Neb.App. 60, 608 N.W.2d 617 (2000); Duckett v. State, 966 P.2d 941 (Wyo.1998); Barone v. State, 109 Nev. 778, 858 P.2d 27 (1993); State v. Gelormino, 24 Conn.App. 556, 590 A.2d 476 (Ct.App.1991); State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984); State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978); State v. Bartlett, 136 Vt. 142, 385 A.2d 1109 (1978); State v. Abbott, 36 N.J. 63, 174 A.2d 881 (1961)
      Apparently the federal constitution does not require such an instruction. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (no constitutional infirmity in placing burden of proof of insanity on defendant.).


author: PER CURIAM. PADOVANO, J.,

text:
    STATE of Florida, Appellant, v. Annette L. FULTON, Appellee.
    No. 1D03-0081.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Charles J. Crist, Jr., Attorney General and Daniel A. David, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The state appeals an order withholding adjudication of guilt and placing the defendant on probation for the crime of trafficking in cocaine. We conclude that the mandatory minimum sentencing provisions of section 893.135(l)(b)l.a., Florida Statutes, apply and that the trial judge was therefore required to sentence the defendant to a minimum term of three years incarceration and a minimum fine in the amount of $50,000. Accordingly, we reverse.

This court has jurisdiction to hear an appeal by the state from an illegal sentence. See § 924.07(1)(e), Fla. Stat. (2001); Fla.R.App.P. 9.140(c)(1)(K). A sentence that does not impose the minimum punishment required by law is regarded as an illegal sentence. See Zimmerman v. State, 467 So.2d 1119 (Fla. 1st DCA 1985); State v. Lopez, 408 So.2d 744 (Fla. 3d DCA 1982); State v. Senich, 543 So.2d 804 (Fla. 4th DCA 1989); State v. Row, 478 So.2d 430 (Fla. 5th DCA 1985).

In this case, the state charged the defendant with trafficking in violation of section 893.135(l)(b)l., Florida Statutes (2001), based on an allegation that she possessed more than 28 grams of cocaine. Section 893.135(l)(b)l.a. provides that if the quantity of cocaine “is 28 grams or more, but less than 200 grams, [the defendant] shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and ... ordered to pay a fine of $50,000.” Because the defendant entered a plea of guilty as charged to the crime of trafficking, the trial court was required to impose the minimum sentence required by the statute. The trial court had no discretion to impose a lesser sentence.

Reversed.

WOLF, C.J. and POLSTON, J., concur.

PADOVANO, J., concurs with opinion.

PADOVANO, J.,

concurring.

I agree that the trial judge must sentence Annette Fulton to a minimum term of three years in the Department of Corrections and that he is also required to assess a fine against her in the amount of $50,000. However, I am compelled to say that this is not my idea of justice. To the contrary, I think that this case is an example of the kind of injustice that can be done when a judge is required to apply a rigid mandatory minimum sentencing statute that removes judgment and discretion from the judicial process.

Ms. Fulton is the single mother of six children. She is twenty-eight years old, and the crime that became the subject of the charge against her in this case was her first offense. She sold forty grams of cocaine in a desperate effort to obtain enough money to buy Christmas presents for her children. She did not expect that her motive in committing the crime would exonerate her or even that it would mitigate her punishment. Instead, she entered an unconditional plea of guilty and stood prepared to accept whatever punishment the trial judge was to impose.

During the sentencing hearing, Ms. Fulton promised the trial judge that she would never commit another crime. This is the kind of statement that is often made at sentencing hearings and often taken with a grain of salt, but the judge may have believed it in this case, given the defendant’s age and her lack of any prior criminal record. He may have thought that Ms. Fulton made a tragic mistake and that her conduct was an isolated incident that would not recur. It would be logical to assume that she did not suddenly decide to embark on a life of crime at the age of twenty-eight. As all experienced trial judges know, the propensity for criminal behavior usually shows up much earlier in life.

Taking all of these facts into consideration, the trial judge decided to place Ms. Fulton on probation for a period of five years. His only error, as odd as it may seem, was that the law did not permit him to use his own judgment in deciding on the proper sentence. Section 893.135(l)(b)l.a., Florida Statutes provides that any person who sells cocaine in an amount more than 28 grams but less than 200 grams must be sentenced to at least three years in prison and must pay a fine of at least $50,000.

Section 893.135(l)(b)l.a., Florida Statutes was enacted twenty-five years ago and since then it has served as a model for many other statutes of its kind. We now have a host of mandatory minimum statutes, one for nearly every kind of crime that could be deserving of a serious punishment. See, e.g., § 775.082(9)(a)3., Fla. Stat. (2003) (releasee reoffenders); § 775.084(4)(c) (three strikes); § 775.084(4)(d) (violent career criminals); § 775.087 (ten-twenty-life); § 790.235 (possession of firearm by violent career criminal). Even the crimes that are not subject to mandatory minimum sentencing statutes are controlled by an intricate set of restrictions imposed by the Criminal Punishment Code. See § 921.002, Fla. Stat. (2003). The time a defendant is required to serve under the Code can be determined within a fraction of a month.

For the first one hundred and fifty years of our history, Florida Legislators set only general parameters and trusted judges to decide the appropriate punishment for a crime. They seemed to understand that the judge was a neutral professional who was in the best position to make the final decision. It is surprising to me how fast that has all changed. In the last twenty-five years, the sentencing function has been taken over almost entirely by the Legislature. Anyone who thinks that a Florida judge has the power to decide what the proper sentence should be in a criminal case would be mistaken. In many cases judges are not deciding much of anything. For the most part, they are merely doing the math and filling out the forms in an effort to identify the sentence the Legislature has decided on in advance. The work they do in arriving at the proper sentence could often be done by someone who has no training or experience in the law, or by someone who does not have any of the qualities our citizens can rightfully expect of judges.

Mandatory minimum sentencing statutes do have some positive features in that they afford an element of certainty and they apply equally to everyone. But these are the same features that can work to impair justice. Every case that is within the grip of a mandatory minimum sentencing statute will come out the same way whether it should or not. Judges have no power to make distinctions or exceptions, even when that is necessary to ensure that justice is done. This is not realistic. In my view, the best criminal sentencing statutes would be those that offer predictability, but not at the expense of individual judgment. Every case is different. Judgment also has a place in the sentencing process, and I think it is foolish to eliminate it entirely.

I doubt that Ms. Fulton is the person the Legislature had in mind when it enacted section 893.135(l)(b)l.a. But the statute applies to her nonetheless. The mandatory minimum sentence is required in every case, without regard for any of the factors that reasonable people would use to distinguish one case from another. The statute does not take into account the age or prior criminal record of the offender, the motive the offender had for committing the crime, the need for imprisonment, or any of the other circumstances in which the crime was committed. A hardened criminal who imports 200 grams of cocaine into the state with the intention of selling it to school children would be subject to the same mandatory minimum sentence the law requires for Ms. Fulton.

This brings me to the heart of my concern. Statutes like the one at issue here remove the human element from our system of justice, and that presents a serious danger. The Legislature cannot possibly envision every situation in which a statute will apply when it is enacted. An inflexible statute that commands a particular result regardless of the facts can easily produce an unjust result. That such a statute will be applied in a way that was not expected is only a matter of time.

Rigid and inflexible statutes remove the most important quality the trial judge may have to offer the parties: the wisdom to make a decision that is fair in the context of the case. Sentencing decisions are now frequently made without the benefit of wisdom or judicial experience and, in some cases, without any input by the trial judge. A defendant’s fate is often decided not with the use of critical thinking or judicial experience, but rather by the application of a one-size-flts-all statute.

The case against Robert Schaeffer is a good example. Mr. Schaeffer was caught shoplifting some clothing from a Burdines store and he sprayed the security guard with pepper spray in an effort to get away. Because the pepper spray was technically a “weapon,” and because Mr. Schaeffer had been released from prison for drug and property crimes less than three years earlier, he qualified for sentencing as a prison releasee reoffender. The statute required the trial judge to sentence Mr. Schaeffer to a mandatory minimum sentence of thirty years in prison.

The appellate court had no choice but to affirm the thirty-year sentence, but one of the judges on the panel noted that the statute produced a “senseless result.” See Schaeffer v. State, 779 So.2d 485, 486 (Fla. 2d DCA 2000) (Seals, J., Associate Judge, concurring). In his view, the case was “a prime example of what can go wrong when sentences are decided outside the courtroom by someone other than the presiding judge.” Id. at 485.

Stiff sentences are often necessary to serve the retributive goal of the criminal justice system and to ensure the safety of the community, but these objectives can be achieved without sacrificing the ability to make reasoned judgments. The harsh result that an inflexible statute can produce in an exceptional case like this one can be avoided. It is possible for the Legislature to set a policy of strict punishments for certain crimes like trafficking in cocaine without taking away the power of the courts to make the kind of distinctions that are necessary to give life to the policy.

I bring up these points only because I think that Florida citizens should be asking questions now about our criminal justice system. The first of these questions is whether there is any need to remove judicial discretion in sentencing. I have never met a judge who wanted to establish a record of leniency toward dangerous criminals. To the contrary, it seems to me that most judges share the Legislature’s goal of ensuring the safety of Florida citizens. So, it is curious indeed that the Legislature would find a need to take away judicial discretion in sentencing. My colleague, Judge Seals, posed the same question in relation to the releasee reof-fender statute. He did not understand “what the legislature is so concerned about today that it takes traditional judicial authority away from judges.... ” Schaeffer v. State, 779 So.2d at 490.

Another question worth asking is whether mandatory minimum sentencing statutes have been effective. I do not know the answer, but I do know that very few people have even investigated the issue. Section 893.135(l)(b)l.a. serves as a good example. We cannot compare the incidence of trafficking crimes before the enactment of the law in 1979 to the incidence of trafficking crimes after the law, because drug crimes are not included in the conviction records reported by the Florida Department of Law Enforcement. What little information we do have, though, suggests that the statute may not be working as intended.

The Department of Law Enforcement does publish annual arrest records for drug cases. According to these records, the number of arrests for all drug crimes has risen steadily from about 15,000 per year in 1971 to about 150,000 per year in 1998. See Chari Analysis of Trends, Uniform Crime Report, (1999). This is not a perfect measure of the effectiveness of the statute, because the number of arrests is not related to population changes. Nevertheless, it is apparent from the Department’s statistics that the number of arrests for drug crimes is increasing at a greater rate than the increase in the population. If that is so, we should at least question whether it was worth it to require mandatory minimum sentences for drug crimes.

Appellate courts are required to enforce the law as it is written, and we have done that in this case. However, I think it is also my duty as a judge to question the wisdom of a law that produces an unfair result. The safety of the community will not be improved by putting Ms. Fulton in prison for three years. If the $50,000 fine is collectable at all, it will only take money away from her children. Florida citizens will bear the cost of supervising Ms. Fulton’s children in relative placements or in foster care. The social cost of separating the children from their mother and the financial cost of supporting them does not, in my view, justify any deterrent or punitive effect the sentence may have.

The trial judge made a perfectly reasonable decision in this case. If the law permitted the trial judge to use his own judgment, I would affirm.


text:
    Shawn JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1956.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.

      James C. Banks and Alexander Dom-browsky of Banks & Morris, P.A., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. L.R.W. v. State, 848 So.2d 1263, 1266 (Fla. 5th DCA 2003).

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


text:
    Arthur STEWART, Patricia Stewart, et al., Appellants, v. The CITY OF PANAMA CITY, Florida, Appellee.
    No. 1D03-3768.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Alvin L. Peters, Esq. of Peters & Scoon, Panama City, for Appellants.
    Rowlett W. Bryant, Esq. of Bryant & Higby, Chartered, Panama City, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Lake Worth Utils. Auth. v. City of Lake Worth, 468 So.2d 215 (Fla.1985); Bd. of County Comm’rs of Marion County v. McKeever, 436 So.2d 299 (Fla. 5th DCA 1983).

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


text:
    Ronald Kurt IMHOF, Appellant, v. Vicki Lanae IMHOF, Appellee.
    No. 1D04-2076.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Robert R. Kimmel of the Law Offices of Kimmel & Batson, Chartered, Pensacola, for Appellant.
    R. John Westberry of Holt & Westber-ry, Pensacola, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of June 7, 2004, this appeal must be dismissed for lack of jurisdiction. See Department of Children and Families v. Monroe, 744 So.2d 1163, 1164 (Fla. 1st DCA 1999).

DISMISSED.

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


text:
    Derrick WYCHE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0598.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Derrick Wyche, pro se, petitioner.
    Charlie Crist, Attorney General, and Phillip W. Edwards, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner seeks a belated appeal of the judgment and sentence rendered on December 11, 2008, in Leon County Circuit Court case number 2003-234. In response to an order to show cause, the state concedes that petitioner is entitled to a belated appeal. Therefore, the petition for belated appeal is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, C.J., DAVIS and HAWKES, JJ., concur.


text:
    FLORIDA’S NATURAL GROWERS and Gallagher Bassett Services, Inc., Appellants, v. Mary CHILDS, Appellee.
    No. 1D03-2723.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Danni Lynn Germano, Esquire, Michael Broussard, Esquire and James R. Spears, Esquire of Broussard, Cullen, Degailler & Eagan, P.A., Orlando, for Appellants.
    Mark G. Capron, Esquire of Smith, Fed-deler, Smith & Miles, P.A., Susan W. Fox, Esquire and Wendy S. Loquasto, Esquire of Fox & Loquasto, P.A., Tampa, for Ap-pellee.
   PER CURIAM.

In this workers’ compensation case, we affirm the final order entered on June 4, 2002. The appeal from the order awarding attorney’s fees is premature. See Suntree United, Methodist Church v. Cowell, 793 So.2d 1063, 1063 (Fla. 1st DCA 2001) (“Because the judge of compensation claims determined that claimant was entitled to a reasonable attorney fee, but reserved jurisdiction to determine the amount, we lack jurisdiction to consider the propriety of that portion of the order. See Dep’t of Children & Families v. Monroe, 744 So.2d 1163, 1164 (Fla. 1st DCA 1999) (an order that merely determines entitlement to attorney fees, without setting an amount, is non-final and non-ap-pealable).”).

AFFIRMED.

BENTON, BROWNING, and POLSTON, JJ., concur.


text:
    John T. LANZA, M.D. and Charlie J. Crist, Jr., Attorney General, Appellant, v. LAWNWOOD MEDICAL CENTER, INC., d/b/a, etc., Appellee.
    No. 1D04-0962.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    W. Dexter Douglass and Thomas P. Crapps; Douglass Law Firm, P.A., Tallahassee, and Richard H. Levenstein; Kramer, Sewell, Sopko & Levenstein, P.A., Stuart, and Charles J. Crist, Jr., Attorney General and Stephanie A. Daniel, Assistant Attorney General; Office of the Attorney General, Tallahassee, for Appellant.
    Kenneth Sukhia, Tallahassee, and Charles W. Hall and Mark D. Tinker; Fowler White Boggs Banker, P.A., St. Pe-tersburg, for Appellee.
   PER CURIAM.

Appellants, Dr. John Lanza (Lanza) and Attorney General, Charles Crist appeal the trial court’s non-final order denying Lan-za s motion to dismiss for improper venue or, in the alternative, motion to transfer to St. Lucie County. We affirm.

In this case, Appellees, Lawnwood Medical Center, Inc., sued Lanza and the Attorney General in a declaratory judgment action. Because the Attorney General was a party to the action at the time the motion was ruled upon, venue in Leon County was proper. See Dep’t of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278 (Fla.2004) (noting the “home venue privilege” provides that venue in a suit against the state is proper only in the county in which the state maintains its principal headquarters); see also § 47.021, Fla. Stat. (2003) (providing “[ajctions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.”). Since Lanza moved to have the case dismissed or venue changed when the Attorney General was still a party to the action, the trial court did not err by denying Lanza’s motion at that time.

AFFIRMED.

ERVIN, ALLEN, and HAWKES, JJ., concur.


text:
    Monica R. PINELLI, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-0531.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.

      Monica R. Pinelli, pro se.
    Laurel Hopper of Department of Children and Families, Ft. Pierce, for Appel-lee.
   PER CURIAM.

Monica R. Pinelli appeals a final order of the Florida Department of Children and Families finding that appellant had failed to inform the Department that a household member had begun employment and ruling that the Department may seek recovery from appellant for the overpayment of food stamp benefits. We affirm.

Appellant argues that she did advise the Department that her daughter was employed and had provided the Department with copies of her daughter’s paychecks. We have been provided no record of the proceeding below, however. As the Florida Supreme Court has explained:

Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

Further, even if appellant had advised the Department of her daughter’s employment status and the Department had erroneously over-issued food stamps to appellant, the Department would nevertheless be required to recover the overpayment. When a person receives public assistance to which she is not entitled, whether through mistake or fraud on the part of the Department or on the recipient’s part, the Department is mandated by statute to “take all necessary steps to recover the overpayment.” § 414.41(1), Fla. Stat. (2002). Thus, even if the food stamp benefits were overpaid due to the Department’s error, the Department is required to recoup the overpayments. Willis v. Department of Children and Family Services, 735 So.2d 585 (Fla. 3d DCA 1999); Lewis v. State of Florida, Department of Health and Rehabilitative Services, 659 So.2d 1255 (Fla. 4th DCA 1995).

AFFIRMED.

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


author: COPE, J.

text:
    E.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-2899.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.

      Kevin Coyle Colbert, Miami, for appellant.
    Calianne P. Lantz, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   COPE, J.

E.S. appeals a final judgment terminating her parental rights. We remand for further proceedings.

I.

The Department of Children and Family Services (“Department”) filed a petition for termination of parental rights against E.S., the mother of the minor child, J.S. In June, 2003, the mother personally appeared for the advisory hearing which was conducted by a General Master. The General Master scheduled the final hearing for August 18, 2003 and warned the mother that failure to appear would cause her parental rights to be terminated without further notice.

The mother was initially represented by private counsel but subsequently was granted court-appointed counsel. The mother attended all of the pretrial hearings.

On August 18, the case came before the court for the final hearing on termination of parental rights. The mother and her appointed counsel were both absent. The Department’s attorney expressed surprise at the mother’s absence, noting that she had attended all prior proceedings in the case. The court heard briefly from the Department’s counselor and the guardian ad litem, who recommended termination. On August 26, the court entered its final judgment of the termination of parent rights.

The next day, on August 27, the mother moved to set aside her default and the final judgment. The motion asserted that the mother was unable to attend the final hearing due to medical reasons and that her physician would provide a medical justification. The motion also stated that appointed counsel had advised the judge’s chambers that he was in another termination of parental rights trial and would be unable to be present at E.S.’s trial. Thereafter counsel filed an amended motion attaching a letter from a neurologist stating that on August 18 the mother was in pain and unable to drive.

The trial court conducted a hearing attended by the mother, her appointed counsel, and the Department’s counsel. The mother’s counsel requested that the court take testimony from the mother regarding her medical condition on August 18, but the court declined to do so. Appointed counsel explained that he had been absent because he was in another termination of parental rights trial. Counsel for the guardian ad litem argued that the conflicting trial had been set far enough in advance that appointed counsel should have obtained substitute counsel to appear, for the mother on August 18. The Department and the guardian ad litem maintained that they had received no motion for continuance from appointed counsel, while appointed counsel stated that he had filed one.

The trial court denied the motion, stating that it “fails to provide adequate medical documentation and a meritorious defense. The motion is legally insufficient, as well.” [R.389]. This appeal follows.

II.

As amended in 1999, chapter 39 states, in part:

(d) ... If a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.

§ 39.801(3)(d), Fla. Stat. (2003); see ch. 99-193, § 42, Laws of Fla.; J.B. v. Florida Dept. of Children and Family Servs., 768 So.2d 1060, 1065 n. 3 (Fla.2000).

At the advisory hearing the General Master advised the mother of the date, time, and place of the final hearing. The General Master stated:

If you fail to appear on that day at that time, your rights will be terminated without further hearing, and any contact that you have or may be entitled to with regard to this child will be cut off at that time.

TR. June 10, 2003, at 11

There is a technical error in the otherwise thorough warning given by the General Master. The statute contemplates that “the court orders that parent to personally appear at the adjudicatory hearing ....” § 39.801(3)(d), Fla. Stat. (emphasis added). In this case the General Master did not specifically order that the mother appear at the adjudicatory hearing. However, this error was harmless because the Master’s warning specifically advised the mother that if she failed to appear, then her rights would be terminated without further hearing. Thus, the statute was adequately invoked in this case.

When the mother failed to appear at the final hearing on August 18, this amounted to a consent and the trial court was authorized to enter the final judgment accordingly.

III.

The mother filed her motion to vacate the termination judgment arguing, in essence, excusable neglect. She maintained that she could not attend the final hearing by reason of her physical condition and that her appointed counsel failed to attend because he was in a conflicting termination of parental rights trial.

Several months after the proceedings below, this court announced R.H. v. Department of Children and Family Servs., 860 So.2d 986 (Fla. 3d DCA 2003). There the respondent father failed to attend the final hearing through inadvertent error because the date of the final hearing had been changed. The father sought to set aside the default. This court held that the usual three-part test for vacating a default would apply, namely, that the party seeking to vacate the default act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition. See id. at 988; see also Markowski v. Attel Bank Int’l, 701 So.2d 416, 418 (Fla. 3d DCA 1997).

We conclude that the principles outlined in R.H. are applicable when the court has proceeded under paragraph 39.801(3)(d), Florida Statutes, as the court did here. In this ease the mother acted with due diligence in filing the motion, which was filed one day after the termination judgment and nine days after the final hearing.

At the hearing on the motion, the Department and the guardian ad litem argued that the medical excuse was insufficient. Although the doctor’s letter stated that the mother was in pain and unable to drive, the Department and guardian argued that this failed to establish that the mother was unable to travel to the hearing by other means. The Department and guardian ad litem also argued that the written motion did not set forth a meritorious defense.

In response, appointed counsel asked that the mother be allowed to testify. After further argument, the court denied the motion to vacate and the mother was not allowed to testify.

We must respectfully disagree with the trial court on this point. The mother had attended all of the previous hearings in the case and maintained that she was physically unable to come to court on the date of the final hearing. We share the court’s skepticism about the sufficiency of the medical excuse, but the mother should have been allowed the requested opportunity to testify in opposition to the arguments that the medical excuse was insufficient and that she had no meritorious defense.

We are conscious of the difficult burden placed on the trial court to strike the balance between the competing interests of parents and children in termination cases, and do not lightly reverse termination judgments. Under the circumstances of this case, however, we conclude that the mother must be allowed to testify in support of the motion to vacate. At such hearing the mother carries the burden of persuasion. If the motion to vacate is found to be meritorious, then the statutory consent must be set aside and there must be a new final hearing. If, however, the mother fails to carry her burden, then the termination judgment must be reentered.

Reversed and remanded for further proceedings consistent herewith.

      . Counsel stated that the mother called him about her medical condition on August 18 or the day before.

      . The General Master continued:
      If for some reason you were to become incarcerated, go to jail, between now and August [18], it would be the State’s obligation to transport you here for the hearing.
      If you are in jail they can't default you if they don’t transport you.
      If you escape from jail, or otherwise continue to live on your own as you are now, it’s your obligation to get to Court on your own.
      Mr. Labora is appointed as your lawyer. It is your job to stay in touch with him.
      If you move, change your address, your phone number, anything, you need to make sure he knows, because from now on notice to him is the same as notice to you, and if there are any changes in the status of this case, and the Court or the Department contacts him, and he unable to reach you, notice to him will still be just as good as if they had notified you directly, understand?

        Id. The final hearing was initially stated to be August 11, but later in the advisory hearing it was rescheduled by agreement to be August 18.


text:
    Robert Earl REEVES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2360.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Robert Earl Reeves, in proper person.
    Charles J. Crist, Jr., Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Jackson v. State, 802 So.2d 387 (Fla. 3d DCA 2001); Robbinson v. State, 784 So.2d 1246 (Fla. 3d DCA 2001); see also McGregor v. State, 789 So.2d 976 (Fla.2001).


text:
    Rafael ROSALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-348.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.

      Charles M. Milligan, Key West, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   COPE, J.

Rafael Rosales appeals his convictions for cocaine trafficking and sale of cocaine. He argues that his motion to suppress evidence should have been granted. We conclude that under the unusual facts of this case, the trial court correctly applied the inevitable discovery doctrine and correctly denied the motion to suppress.

I.

On November 14, 2002, a confidential informant purchased one hundred dollars worth of cocaine from defendant-appellant Rosales. The confidential informant was controlled by two detectives from the Monroe County Sheriffs Office.

The following day, the confidential informant told the defendant that he wished to buy a half kilo of cocaine. The defendant stated that he would need to obtain that amount in Miami.

On November 16, the confidential informant went to the defendant’s home. The defendant’s wife indicated that the defendant was not there but reached him by telephone. The defendant spoke to the confidential informant and indicated that he would have the half kilo either later that day or the next day. The defendant also told the confidential informant that his wife would sell him a smaller amount of cocaine in the meantime. The confidential informant then purchased an amount of cocaine from the defendant’s wife.

After leaving the defendant’s house, the confidential informant advised the detectives that the defendant would be bringing the half kilo that night or the next day. He told the police that the defendant was driving a Mercedes automobile.

The detectives issued an order for other officers in Monroe County to be on the look out for the defendant’s vehicle. Thereafter a patrol officer called the detectives saying he had located the defendant driving southbound on U.S. 1 from Key Largo toward Key West. The detectives told the patrol officer to follow the defendant and stop the defendant if the officer observed a traffic violation.

The detectives testified that they had two alternative procedures which they were pursuing. If the defendant were stopped in a traffic stop, then the detectives would come to the scene and a canine unit would also respond. During the traffic stop a drug sniff dog would conduct a drug sniff outside the vehicle to see if it alerted on the cocaine the defendant was believed to be carrying.

If, however, the patrol officer did not observe a traffic violation and did not make a traffic stop, then the detectives would stop the defendant’s car before he reached Key West and arrest him for the drug sale which had occurred on November 14. In that event there would be a search incident to that arrest or a search under other established procedure.

Of the two alternatives, the detectives preferred a traffic stop if possible. That was because in a traffic stop and dog sniff, the defendant would not necessarily become aware that there was a confidential informant. An arrest on probable cause for the November 14 cocaine sale, by contrast, would inevitably disclose the existence of the confidential informant.

As events turned out, the patrol officer made a traffic stop. The canine unit was tardy and did not arrive until after the patrol officer had finished writing a ticket. The drug sniff dog alerted on the cocaine which was in the car. The defendant was taken into custody. However, the defendant agreed to cooperate with the officers. The defendant was released without any charges being filed.

The defendant still did not know that there was a confidential informant in the case. On November 27, the defendant (without the knowledge of the detectives) re-initiated contact with the confidential informant and sold the confidential informant more cocaine. That ended the agreement for cooperation between the defendant and law enforcement.

The State then charged the defendant with trafficking in cocaine in an amount of two hundred grams or more, based on the cocaine found in the defendant’s car on November 16. The State also charged the defendant with two counts of sale of cocaine for the sales on November 14 and 27.

The defendant filed a motion to suppress the cocaine seized from his car on November 16. After an evidentiary hearing, the trial court denied the motion.

The defendant filed a motion to dismiss the prosecution, alleging that the deputies had engaged in outrageous conduct. After an evidentiary hearing, that motion was denied as well.

The defendant entered into a plea agreement whereby he pled guilty to the charges, with a reservation of his right to appeal the denial of the motion to suppress and motion to dismiss. This appeal followed.

II.

At the outset of the hearing on the motion to suppress, the State informed the trial court that it would rely exclusively on the inevitable discovery doctrine to support the seizure of the cocaine on November 16. The State acknowledged that there had not been probable cause for the traffic stop. That was so because the patrol officer stopped the defendant for weaving in the traffic lane. The patrol officer based the stop on the fact that the defendant’s wheel touched the white line at the edge of the roadway. The State conceded that the observations of the patrol officer were not sufficient to give the officer probable cause to believe that a traffic infraction had occurred. The State also acknowledged that the traffic stop had exceeded a permissible length of time, because the patrol officer had finished writing the traffic tickets, and had just given them to the defendant at the time that the detectives and canine unit arrived. Thus, the traffic stop exceeded permissible time limits.

The State also took the position that the information the confidential informant had provided to the detectives was not sufficient to give rise to probable cause to believe that the defendant was transporting cocaine in his car on November 16. This concession was apparently based on the State’s limited experience in the use of the particular confidential informant, who had only participated in a single drug purchase from this defendant on November 14.

The State argued, however, that the inevitable discovery rule was applicable. The State offered evidence that (a) the detectives already had probable cause to arrest the defendant on felony cocaine sale charges for the sale of cocaine on November 14; (b) the decision had been made to arrest the defendant on those charges on November 16, prior to the defendant’s reaching Key West; (c) the detectives were stationed along the roadway in their vehicle prepared to make the arrest; and (d) the detectives would have made the felony arrest had the defendant not been stopped by the patrol officer for the alleged traffic violation. The court took testimony from the confidential informant, the two detectives, the patrol officer, another Monroe County officer, and the defendant. After hearing the testimony, the court denied the motion to suppress.

The Florida Supreme Court has explained the inevitable discovery rule as follows:

In Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377 (1984), the United States Supreme Court adopted the “inevitable discovery” exception to the “fruit of the poisonous tree” doctrine. Under this exception, evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means. In adopting the inevitable discovery doctrine, the Court explained, “[exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” Id. at 446, 104 S.Ct. at 2510.

Maulden v. State, 617 So.2d 298, 301 (Fla.1993); Hatcher v. State, 834 So.2d 314, 317-18 (Fla. 5th DCA 2003).

“[Ejvidence which was originally obtained improperly should not be suppressed, provided that it would have been legitimately uncovered pursuant to normal police practices.” United States v. Seals, 987 F.2d 1102, 1108 (5th Cir.1993) (citations omitted); see also United States v. Zapata, 18 F.3d 971, 978-79 (1st Cir.1994); United States v. George, 971 F.2d 1113, 1121-22 (4th Cir.1992).

The trial court found that by the time of the traffic stop, the detectives had probable cause to arrest the defendant for two sales of cocaine: first, for the sale made directly by the defendant to the confidential informant on November 14, and second, for the sale by the defendant’s wife (on the defendant’s instructions) to the confidential informant on November 16.

The court went on to find that the two detectives had made the decision to arrest the defendant on November 16 before he reached Key West. The detectives were positioned in their vehicle to make the arrest based on the already-existing probable cause. They did not do so only because the patrol officer made his roadside traffic stop of the defendant instead.

Based on the evidence, the court found that the arrest would have been made on probable cause had there not been the traffic stop, and the cocaine would inevitably have been discovered. We conclude that the facts found by the court are supported by the record, and that the inevitable discovery doctrine is applicable here.

In his alternative argument, the defendant maintains that his motion to dismiss should have been granted. His motion asserted that he was entrapped by reason of outrageous police conduct. See Munoz v. State, 629 So.2d 90, 98-99 (Fla.1993). The claim of constitutional violation is that the confidential informant had a pending charge of violation of probation and agreed to work with the police in the hope (but no promise) of leniency regarding the pending affidavit of violation. The use of such a confidential informant does not constitute a constitutional violation. See State v. Myers, 814 So.2d 1200, 1202-03 (Fla. 1st DCA 2002).

Affirmed.

      . Monroe County Circuit Court case number CFK-02-1303.

      . Monroe County Circuit Court case number CFK-03-102.


text:
    C.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D04-37.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Herscher & Herscher, P.A., and llene Herscher, for appellant.
    Calianne P. Lantz; Hillary S. Kambour, for appellee.
    Before COPE, GREEN, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See M.S. v. D.C., Jr., 763 So.2d 1051 (Fla. 4th DCA 1999); Turner v. Adoption of Turner, 352 So.2d 957 (Fla. 1st DCA 1977).


text:
    Paul BURGOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-201.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Jill K. Traína, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

On the ground that the evidentiary point presented involves no more than harmless error, the conviction and judgment below are affirmed. See § 924.33, Fla. Stat. (2003); Goodwin v. State, 751 So.2d 537 (Fla.1999).


text:
    Josue RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1330.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Josué Rivera, in proper person.
    Charles J. Crist, Jr., Attorney General, and Meredith J. Balo, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Because appellant’s time spent at a residential drug treatment program is not equivalent to incarceration, the trial court properly denied his motion for additional credit for time served. See Pennington v. State, 398 So.2d 815 (Fla.1981). See also Toney v. State, 817 So.2d 924 (Fla. 2d DCA 2002); Taylor v. State, 726 So.2d 348 (Fla. 3d DCA 1999) Self v. State, 504 So.2d 810 (Fla. 2d DCA 1987).

Affirmed.


author: LPER CURIAM.

text:
    In re Archie L. JEFFERSON.
    No. 2004-B-0239.
    Supreme Court of Louisiana.
    June 18, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Archie L. Jefferson, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Respondent was admitted to the practice of law in Louisiana in 1987. On February 19, 1993, this court suspended respondent for two and one-half years, retroactive to December 14, 1990, the date of his interim suspension. In re: Jefferson, 613 So.2d 969 (La.1993). Respondent did not apply for reinstatement following his suspension, nor was he ever reinstated. In December 1995, respondent was convicted of the unauthorized practice of law. He was disbarred for that and other serious professional misconduct on June 15, 2001. In re: Jefferson, 01-1296 (La.6/15/01), 789 So.2d 569.

UNDERLYING FACTS

As a result of his prior disciplinary proceedings, respondent has been prohibited from practicing law since December 14, 1990. Nevertheless, between June 1, 2000 and September 21, 2001, respondent practiced law in a corporate legal dispute involving B & C Broadcasting, Inc. Specifically, in the matters entitled Vera S. Foster, et al. v. B & C Broadcasting, Inc., et al., No. 99-0674 on the docket of the United States District Court for the Western District of Louisiana, and Vera S. Foster, et al. v. Faye Brown Blackwell, et al., No. 96-5298 on the docket of the 14th Judicial District Court for the Parish of Calcasieu, respondent notarized signatures on an escrow agreement, conducted settlement negotiations with opposing counsel, signed pleadings, and engaged in other activities which constitute the practice of law.

DISCIPLINARY PROCEEDINGS

On November 8, 2002, the ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a) (engaging in the unauthorized practice of law), 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). The formal charges were served upon respondent by certified mail received on November 20, 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

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee agreed that respondent violated Rules 5.5, 8.4(a), and 8.4(c) of the Rules of Professional Conduct. The committee made no specific findings regarding the alleged violations of Rules 8.4(b) and 8.4(d). The committee recommended that respondent be disbarred.

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

Disciplinary Board Recommendation

Noting the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3), the disciplinary board agreed that respondent violated the Rules of Professional Conduct as charged. The board determined that respondent knowingly, if not intentionally, violated duties owed to the public, the legal system, and the profession. The legal profession has been harmed by respondent’s unauthorized practice of law. Restrictions on the practice of law are designed to protect the public, protect the integrity of the judicial system, and provide a means of regulation of the legal profession. Respondent’s failure to recognize these restrictions created the potential for injury to the public and the legal system. The board determined the baseline sanction for respondent’s misconduct is disbarment.

The board recognized the following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, obstruction of the disciplinary process, Hand refusal to acknowledge the wrongful nature of the conduct. The board found no mitigating factors are present.

In light of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board found that disbarment is an appropriate sanction. However, recognizing that respondent engaged in the unauthorized practice of law while disbarred, the board concluded that permanent disbarment is warranted. 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.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation.

DISCUSSION

The deemed admitted facts in this case support a finding that respondent engaged in the unauthorized practice of law after being disciplined by this court. 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’s conduct clearly violated duties owed to the public, the legal system, and the profession. Unquestionably, the baseline sanction for such misconduct is disbarment. Numerous aggravating factors are present, but we are unable to determine any mitigating factors from the record.

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

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent ■ disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment.

For purposes of the instant case, Guidelines 8 and 9 are relevant. Those guidelines detail the following conduct:

GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Guideline 8 is clearly applicable to this case, as the undisputed evidence shows that respondent handled a corporate legal dispute after his license to practice law was suspended by this court in 1990, and continuing after his law license , was revoked in |r,2001. Likewise, Guideline 9 is implicated, as the instant misconduct, which is unquestionably serious attorney misconduct, was preceded by respondent’s disbarment for prior instances of serious attorney misconduct.

We do not lightly impose the sanction of permanent disbarment. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. Respondent has flouted the authority of this court by practicing law after being prohibited from doing so. In the face of this indisputable evidence of a fundamental lack of moral character and fitness, we can conceive of no circumstance under which we would ever grant readmission to respondent. Accordingly, he must be permanently disbarred.

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

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Archie L. Jefferson be permanently disbarred. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. 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.

      . The return receipt card was signed by respondent personally.

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


author: |,PER CURIAM.

text:
    In re Henry B. JONES, Jr.
    No. 2004-B-0437.
    Supreme Court of Louisiana.
    June 25, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

|,PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Henry B. Jones, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension.

UNDERLYING FACTS

Counts I and II — The Steadman/Pineda Matter

In August 1996, respondent settled personal injury claims on behalf of Ms. Sharon Steadman and Ms. Josephine Stead-man. Respondent had previously received written notice of a statutory lien for medical services provided to his clients by Jose Pineda, M.D., and by letter dated June 4, 1996, respondent agreed to protect Dr. Pineda’s interest in the settlement of the personal injury claims. Nevertheless, respondent failed to pay the sums owed to Dr. Pineda, totaling $970 for Sharon Steadman and $870 for Josephine Stead-man. Respondent subsequently acknowledged that he paid these sums directly to his clients based upon their representation that they had made arrangements to satisfy Dr. Pineda’s charges.

After Dr. Pineda filed a complaint against respondent with the ODC, respondent was served with a subpoena compelling him to appear on April 1,1997 with his entire file in the Steadman matter. Respondent failed to appear on that date, but he did 12subsequently appear on February 3, 1998 to give sworn testimony concerning the matter.

The ODC alleged respondent’s failure to pay a third-party medical provider violated Rules 1.15(b) (safekeeping property of clients or third persons) and 4.1(a) (knowingly making a false statement of material fact to a third person) of the Rules of Professional Conduct. The ODC alleged respondent’s failure to appear pursuant to a subpoena violated Rules 3.4(a) (unlawfully obstructing another party’s access to evidence), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation), as well as Supreme Court Rule XIX, § 9(c) (knowing failure to respond to a lawful demand for information from a disciplinary authority).

Count III — The Moore Matter

In March 1997, Alberta Moore paid respondent $750 to handle an adoption proceeding on her behalf. Respondent neglected the matter, failed to communicate with his client, and failed to refund the unearned portion of the legal fee he was paid.

The ODC alleged respondent’s conduct violated Rules 1.1 (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 1.5 (fee arrangements) of the Rules of Professional Conduct.

\zCount TV — The Revilla Matter

In May 1997, Dolores C. Revilla paid respondent $500 to represent her in a criminal case. On June 10, 1997, respondent appeared in court and entered a not guilty plea on Ms. Revilla’s behalf, but thereafter he neglected the matter and failed to communicate with his client. As a result, the trial court was required to appoint an indigent defender to represent Ms. Revilla. Respondent also failed to refund the unearned portion of the legal fee he was paid.

The ODC alleged respondent’s conduct violated Rules 1.1, 1.3, 1.4, and 1.5 of the Rules of Professional Conduct.

Count V — Misdemeanor Theft Conviction

In 1995, respondent received a $1,518 check payable to LaTonya Taylor in connection with the asset forfeiture proceeding subject of Count VI of the formal charges. Respondent endorsed the check without Ms. Taylor’s consent and retained the proceeds for his own use. On November 29, 2000, respondent pleaded guilty to misdemeanor theft and was sentenced under La. Code Crim. P. art. 894 to pay court costs and to serve one month in the parish jail. The court ordered the jail sentence suspended and placed respondent on unsupervised probation for a period of three months. State v. Jones, No. 191,679 on the docket of the 1st Judicial District Court for the Parish of Caddo.

The ODC alleged respondent’s conviction constituted a violation of Rules 4.1 (truthfulness in statements to others), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

\4Count VI — The Taylor Matter

In connection with his representation of Broderick Taylor in a criminal case pending in Caddo Parish, respondent sought the return of funds that were seized from Mr. Taylor at the time of his arrest and made subject of an asset forfeiture proceeding. In September 1993, respondent prepared an affidavit that was executed by Mr. Taylor’s sister, LaTonya Taylor, in which she attested that the funds seized from Mr. Taylor actually belonged to her. Based upon the representations made in the affidavit, the seized funds were returned to LaTonya Taylor by the Caddo Parish District Attorney’s Office. However, in a subsequent proceeding, respondent submitted a contradictory affidavit in which he asserted that the seized funds did not belong to LaTonya Taylor, but rather belonged to Broderick Taylor.

The ODC alleged that respondent’s conduct violated Rule 3.3 (candor toward the tribunal) of the Rules of Professional Conduct.

[Count VII] Contempt of Court

In September 1997, respondent was charged with direct contempt of court for refusing to produce documents subpoenaed from him by the Caddo Parish District Attorney’s Office. Following an October 20,1997 hearing in the 1st Judicial District Court for the Parish of Caddo, respondent was held in contempt of court and sentenced to pay a fine of $200 and costs, or in default thereof, to serve five days in the parish jail.

The ODC alleged that respondent’s conduct violated Rules 3.3, 8.4(a), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

| .DISCIPLINARY PROCEEDINGS

On March 18, 1998, prior to the filing of formal charges against respondent, this court granted a joint petition for interim suspension submitted by respondent and the ODC. In re: Jones, 98-0414 (La.3/18/98), 707 So.2d 1247. Thereafter, the court rejected a petition for consent discipline filed by respondent and ordered that formal charges be instituted. In re: Jones, 98-1475 (La.7/2/98), 712 So.2d 500.

On July 5, 2001, the ODC filed six counts of formal charges against the respondent. Respondent did not file an answer to the formal charges, and the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence. After consideration of written argument and documentary evidence submitted by the ODC on the issue of sanctions, the hearing committee reeom-mended that respondent be disbarred. The disciplinary board subsequently determined that respondent had made a good faith effort to respond to the formal charges, but that he had not been afforded proper notice of the proceedings in order to participate should he choose to do so. Accordingly, on May 13, 2002, the disciplinary board vacated the order deeming the formal charges admitted, and remanded the matter for a formal hearing before a hearing committee.

Following remand, the ODC amended the formal charges against respondent to add the seventh count discussed above, relating to the contempt of court. Respondent did not file an answer to the amended formal charges. The matter then proceeded to a hearing on the merits, which was conducted by the hearing committee on July 29, 2002.

| fjlearincj Committee Recommendation

At the hearing, the ODC presented documentary evidence in support of the formal charges and respondent testified on his own behalf. After reviewing the evidence, the hearing committee made the following factual findings and legal conclusions:

Count I: Respondent agreed in writing on June 4, 1996 to protect the interest of Dr. Jose Pineda and to withhold the amount of Dr. Pineda’s charges for medical services rendered to Sharon and Josephine Steadman from any sums received in settlement of Sharon and Josephine Steadman’s personal injury matters. The claims of Sharon and Josephine Steadman were settled, which settlements yielded sums sufficient to pay Dr. Pineda’s medical charges. Respondent disbursed the proceeds of the settlements, but failed to account to. Dr. Pineda for the charges with respect to Josephine Steadman totaling $870, and Sharon Steadman totaling $970 from the funds received in settlement. Rather, the funds representing Dr. Pine-da’s charges were paid to the Steadmans. The committee determined respondent’s conduct violated Rules 1.15 and 4.1.

Count II: Respondent was served with a subpoena on March 31, 1997 ordering him to appear before Disciplinary Counsel on April 1, 1997 to testify and produce his file in connection with the investigation of the complaint filed by Dr. Pineda. Respondent failed, refused and/or neglected to respond to the subpoena on the date appointed but later met with the Disciplinary Counsel and voluntarily surrendered his license to practice law pending the outcome of this proceeding. The committee determined respondent did not violate the Rules of Professional Conduct in connection with this count; the committee made no reference to the violation of Supreme Court Rule XIX, § 9(c) alleged in the formal charges.

\gCount III: In 1997, respondent was retained by Alberta Moore to file and complete an adoption proceeding whereby Ms. Moore was to adopt' Rebecca Wiggins. Respondent was paid the sum of $750 for the filing and completion of the adoption proceeding. Respondent failed to take any steps in connection with the adoption and further failed to communicate or keep his client advised of the status of the matter. Respondent failed to return or account for any unearned fees paid to him by Alberta Moore. The adoption was later completed by respondent’s law partner at no additional charge to the client. The committee determined respondent’s conduct violated Rules 1.1,1.3,1.4, and 1.5.

Count IV: In May 1997, respondent was retained by Dolores C. Revilla to represent her in Caddo Parish District Court on a felony theft charge. Respondent was paid $500 for the representation. Respondent appeared on one occasion for Ms. Revilla in order to obtain a continuance, and met with the prosecutor and judge to negotiate a plea agreement, but failed to appear for any subsequent court settings on behalf of Ms. Revilla. It was necessary for the court to appoint another attorney to represent Ms. Revilla due to the failure of respondent to appear on her behalf and/or to communicate with her concerning her case. The appointed attorney concluded the plea agreement previously negotiated by respondent. The committee determined respondent’s conduct violated Rules 1.1, 1.3, 1.4, and 1.5.

Count V: Respondent forged the endorsement of LaTonya Taylor to a check and converted the funds, approximately $1,500, to his own use. Respondent was subsequently convicted of misdemeanor theft on November 29, 2000. The committee determined respondent’s conduct violated Rules 3.3, 8.4(b), 8.4(c), and 8.4(d).

| ¡¡Count VI: In connection with his representation of Broderick Taylor on criminal drug possession charges, respondent sought the return of funds subject of an asset forfeiture proceeding in Caddo Parish District Court. Respondent procured and obtained from LaTonya Taylor, the sister of Broderick Taylor, an affidavit asserting her ownership of the funds at issue. Based upon the affidavit of LaTonya Taylor, respondent obtained return of the funds for his client by asserting before the tribunal that the funds actually belonged to LaTonya Taylor. Subsequently, in documents filed on respondent’s own behalf in a criminal contempt matter pending against him, respondent asserted that the funds in question actually belonged to Bro-derick Taylor. The committee did not make a finding of rule violations in connection with Count VI. The committee’s report also did not address the contempt issue raised in Count VII of the amended formal charges.

The committee determined that respondent neglected matters entrusted to him, failed to communicate with his clients, failed to safeguard and account for funds held for a third-party medical provider, made untrue representations to a tribunal in an asset forfeiture proceeding, and converted client funds and/or funds of a third party to his own use. The committee found respondent’s conduct was intentional. Respondent willfully converted client and third-party funds and since the date of his interim suspension has never repaid any of the complainants any portions of the sums due. He was convicted of stealing money belonging to a former client, LaTonya Taylor, by endorsing her name to a check made payable to her and cashing the check and retaining the funds. In addition, he knowingly confected a false affidavit which he presented to the court in order to procure funds which did not belong to him. Respondent has caused serious harm to his former clients and the medical provider in question by converting their funds to his own use. He has also brought the legal ^profession into disrepute by his conviction of a crime involving forgery, theft, and misappropriation of funds. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction in this matter is disbarment.

As aggravating factors, the committee recognized respondent’s dishonest or selfish motive, a pattern of misconduct, and multiple offenses. In mitigation, the committee found no evidence was submitted showing that respondent has a prior disciplinary record.

Considering the seriousness of the misconduct, in particular the pattern of neglect of respondent’s duties as a lawyer which caused harm to his clients, his filing of false documents, and his conviction of a crime involving theft and forgery and misappropriation of client funds, the committee recommended that respondent be disbarred.

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

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board made the following factual findings and legal conclusions:

Count I: The ODC presented numerous letters to respondent from Dr. Pineda requesting payment for the treatment of two patients, Josephine Steadman ($870) and Sharon Steadman ($970). Dr. Pineda also received a letter from respondent dated June 4, 1996, wherein respondent assured Dr. Pineda that he would be paid out of any 11 nproceeds from the settlement of the personal injury claims. The claims were settled but respondent failed to pay Dr. Pineda; rather, respondent released the funds intended for Dr. Pineda to the Steadmans. The board determined that respondent failed to protect funds belonging to a third party, in violation of Rule 1.15(b), and made a false statement of fact to Dr. Pineda, in violation of Rule 4.1(a).

Count II: The ODC introduced the subpoena personally served on respondent on March 31, 1997, requiring him to appear for a sworn statement on April 1, 1997 concerning his representation of the Stead-mans. The ODC filed a copy of a proces verbal evidencing respondent’s failure to appear. The board determined that respondent failed to cooperate with a disciplinary investigation and failed to appear pursuant to a subpoena, in violation of Rules 3.4(c), 8.1(b), 8.1(c), 8.4(a), 8.4(d), and 8.4(g), as well as Supreme Court Rule XIX, § 9(c). However, the board found no evidence suggesting that respondent obstructed the ODC’s access to evidence in the Pineda matter, in violation of Rule 3.4(a).

Count III: The ODC introduced Ms. Moore’s complaint, her affidavit attesting that she engaged respondent to handle an adoption, and a receipt signed by respondent evidencing payment of $750. Ms. Moore attempted to contact respondent by phone and in person at his office, but he was never available. The board determined respondent failed to provide competent representation to Ms. Moore, failed to communicate with her, neglected her adoption matter, and failed to provide an accounting and a refund of unearned fees, in violation of Rules 1.1, 1.3, 1.4, and 1.5.

Count TV: The ODC introduced Ms. Re-villa’s complaint, her affidavit attesting that she hired respondent for a criminal representation, but that he failed to appear in court and could not be contacted, and a receipt signed by respondent evidencing | ^payment of $500. The board determined respondent failed to provide competent representation to Ms. Revilla, failed to communicate with her, neglected her criminal case, and failed to provide an accounting and a refund of unearned fees, in violation of Rules 1.1, 1.3, 1.4, and 1.5.

Count V: The ODC introduced the court minutes evidencing respondent’s conviction of misdemeanor theft stemming from his fraudulent endorsement of a $1,518 check payable to LaTonya Taylor. The board determined respondent made a false statement of material fact to third persons when he endorsed Ms. Taylor’s name to the check without her authority and negotiated the check at the bank, in violation of Rule 4.1. Moreover, respondent’s theft of his client’s funds violated Rules 8.4(b), 8.4(c), and 8.4(d). Respondent has since fully repaid the Taylors.

Count VI: The sum of $1,518 was seized from Broderick Taylor during a drug stop. Broderick’s only hope to retrieve the money was to have his sister, LaTonya Taylor, claim that the money belonged to her. At respondent’s request, LaTonya made out a false affidavit in order to have the money returned. The board determined that respondent intentionally filed a false affidavit with the court in the forfeiture proceeding, in violation of Rule 3.3.

Count VII: Respondent was found in contempt of court for failing to turn over certain documents in connection with the Taylor matter, after having been ordered by the court to do so. The board determined that respondent’s conduct violated Rules 3.3, 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Respondent knowingly violated duties owed to his clients, the public, the legal system, and as a professional by failing to provide competent representation, failing to communicate with clients, failing to use reasonable diligence, knowingly filing a false affidavit with a court, failing to properly safeguard the funds of clients and third 1 ^parties, failing to provide an accounting and return unearned fees, failing to cooperate with a disciplinary investigation, engaging in criminal conduct (misdemeanor theft conviction), conduct prejudicial to the administration of justice (found in contempt for failing to turn over documents to the court), and conduct that reflects adversely on his honesty, trustworthiness, and fitness to practice law.

Respondent caused actual harm to his client, Mr. Taylor ($1,518), and a third party, Dr. Pineda ($1,840), by depriving them of their money. Due to his own arrest, respondent was not able to appear in court with Dolores Revilla, did not complete her representation, and did not refund her money ($500). Mr. Taylor and his sister, LaTonya Taylor, received a full refund on May 12, 2000, but Dr. Pineda and Ms. Revilla have not been reimbursed. Based upon respondent’s testimony and a lack of contradictory evidence from the ODC, Alberta Moore’s adoption matter appears to have been resolved by respondent’s former law partner at no additional cost. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction for respondent’s misconduct is a suspension from the practice of law.

As aggravating circumstances, the board recognized respondent’s prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, substantial experience in the practice of law (admitted 1978), and indifference to making restitution. The board found the record supports the mitigating factors of imposition of other penalties or sanctions (with respect to the contempt and his misdemeanor theft conviction), remorse, and remoteness of prior disciplinary offenses.

11sUnder the facts presented, the board recommended that respondent be suspended from the practice of law for three years, retroactive to his March 18, 1998 interim suspension. The board also recommended that respondent be ordered to provide ac-countings and make restitution to Dr. Pineda and Ms. Revilla, and that he 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.

One board member dissented, stating that in his view, “the continuous and repeated violations justify disbarment.”

The ODC filed an objection in this court to the sanction recommended by the disciplinary board. Pursuant to Supreme Court Rule XIX, § 11(G)(1)(b), a timely filed objection to the board’s findings and recommendations ordinarily results in the assignment of the matter for oral argument. However, in this case, both parties agreed to waive oral argument and consented to our consideration of the matter on the record presented.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is 114applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports the detailed factual findings of the hearing committee and disciplinary board. Respondent was held in contempt of court for failing to comply with a subpoena, and he submitted a false affidavit to a court in a legal proceeding. Furthermore, respondent has engaged in serious criminal conduct which resulted in his conviction of theft for fraudulently endorsing a check payable to his client and converting the funds to his own use. No less serious is respondent’s neglect of the legal matters of two clients, failure to communicate with his clients, failure to account for or refund unearned fees owed to his clients, and failure to protect the interests of a third-party medical provider.

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

Respondent’s actions are clearly serious in nature and caused actual harm. Contrary to the position taken by the majority of the disciplinary board, we find the baseline sanction for respondent’s intentional misconduct is disbarment. Moreover, we find no justification in the record for deviating downward from the baseline in this case. Rather, we agree with the hearing committee and the dissenting member of the [ ^disciplinary board that respondent’s misconduct is egregious and demonstrates a lack of concern for the welfare of his clients, third persons, and the administration of justice. The aggravating factors present in this case — in particular respondent’s selfish motive and his utter indifference to making restitution to Dr. Pineda, Ms. Moore, and Ms. Revilla— further support our view in this regard.

Accordingly, we will reject the disciplinary board’s recommendation of a three-year suspension and impose disbarment, retroactive to March 18, 1998, the date of respondent’s interim suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Henry B. Jones, Jr., Louisiana Bar Roll number 7485, be and he hereby is 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 Jose Pineda, M.D. in the amount of $1,840.00, to Alberta Moore in the amount of $750.00, and to Dolores C. Revilla in the amount of $500.00, all with 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.

      . The adoption proceeding had not been completed as of August 1997, when Ms. Moore filed her complaint with the ODC. However, it appears from the record that the adoption was subsequently completed by respondent’s former wife and law partner, Brenda Ford-Jones, at no additional cost to Ms. Moore.

      . The contempt count is not numbered in the amended formal charges, but for ease of reference, we have designated it as Count VII.

      . The formal charges do not allege that respondent's conduct in connection with Count V constituted a violation of Rule 3.3 (candor toward the tribunal). Rather, the formal charges allege that respondent made a false statement of material fact to a third person, in violation of Rule 4.1.

      . The committee also acknowledged that respondent expressed "true remorse” for failing to pay Dr. Pineda's medical expenses, which may be considered a mitigating factor. However, as to "the primary and most serious charges of misappropriation or theft and filing of false affidavits,” the committee noted that respondent "offered an explanation but did not acknowledge the wrongness of his conduct or regret that he had handled the matter in the way he did.” A lawyer's refusal to acknowledge the wrongful nature of his conduct is properly considered as an aggravating factor.

      . Respondent received a formal private reprimand on September 20, 1985.


text:
    In re Ahmad Raheem MUHAMMAD.
    No. 2004-B-1643.
    Supreme Court of Louisiana.
    July 9, 2004.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Ahmad Raheem Muhammad, Louisiana Bar Roll number 14468, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. 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 George Edward LUCAS, Jr.
    No. 2004-B-1669.
    Supreme Court of Louisiana.
    July 9, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from a rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, George Edward Lucas, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Respondent was the subject of prior disciplinary proceedings in In re: Lucas, 02-1624 (La.8/30/02), 825 So.2d 1090 (“Lucas I ”), which involved his failure to safeguard funds belonging to clients and third parties, stemming largely from inadequate office accounting procedures. Prior to the filing of formal charges, respondent submitted a petition for consent discipline proposing that he be suspended from the practice of law for two years, fully deferred, subject to a two-year period of supervised probation with conditions. The ODC concurred in the petition, and the disciplinary board recommended the proposed discipline be accepted. On August 30, 2002, we accepted the petition for consent discipline and imposed a suspension of two years. The suspension was deferred in its entirety subject to respondent’s completion of a two-year period of probation governed by specified conditions, including the following:

(p Respondent will consult with Gilsbar Loss Avoidance Counsel to obtain advice for setting up proper bookkeeping procedures for the handling of | ¡.his financial accounts, books, and, in particular, his trust account.
(2) Respondent will retain, at his own expense, a certified public accountant who will assist in setting up the bookkeeping system, particularly for respondent’s trust account, and will audit or review respondent’s trust account for compliance with the Rules of Professional Conduct and make a quarterly report to both the ODC and respondent’s probation monitor.

On October 30, 2002, the disciplinary board appointed Monroe attorney Thomas M. Hayes, III as respondent’s probation monitor. Respondent’s probation plan was executed in December 2002, which called for respondent to engage a CPA to review his trust account and certify on a quarterly basis that the account was in order. In April 2003, July 2003, and February 2004, Mr. Hayes reported to the ODC that respondent was satisfying the conditions of his probation. However, in June 2004, Mr. Hayes reported that respondent was no longer cooperating with him and that he had failed to provide the requisite trust account reports, despite numerous requests.

DISCIPLINARY PROCEEDINGS

Rule to Revoke Probation

On June 7, 2004, the ODC filed a rule to revoke respondent’s probation. In addition to respondent’s failure to cooperate with his probation monitor, the ODC also premised its rule on respondent’s failure to cooperate in the investigation of a newly filed complaint. The ODC prayed for revocation of respondent’s probation and the imposition of the previously deferred two-year suspension.

\RDisciplinary Board Recommendation

A hearing was conducted before an adjudicative panel of the disciplinary board on June 23, 2004. The ODC submitted documentary evidence in support of its case, and called Mr. Hayes and two other witnesses to testify by telephone. Despite notice, respondent did not appear at the hearing.

After considering the evidence presented, the board made factual findings, including the following:

1. Respondent has been given notice pursuant to Rule XIX of the revocation of probation proceedings and has failed to respond or appear;

2. Respondent has failed to provide a quarterly trust account report from a certified public account for March 2004; and

3. Respondent has failed to provide his probation monitor with access to his trust account information on a monthly basis.

Based on these factual findings, the board concluded that respondent is in violation of his probation and that he poses a serious danger to the public. As a matter of law, respondent’s failure to satisfy the conditions of his probation warrants the revocation thereof and his suspension from the practice of law for two years.

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

RDISCUSSION

The record supports the disciplinary board’s conclusion that respondent failed to comply with the conditions of his probation in Lucas I. Respondent signed a formal probation plan in December 2002. As part of the plan, respondent agreed to allow his probation monitor, Thomas Hayes, monthly access to his trust account records and provide quarterly CPA reports to Mr. Hayes pertaining to his trust account. However, the last such report Mr. Hayes received was dated February 17, 2004. Mr. Hayes subsequently attempted to contact respondent by telephone and in person, but to no avail.

Under these circumstances, we must conclude that respondent failed to comply with the terms of his probation. Accordingly, we will revoke his probation and make the previously deferred two-year suspension executory.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously deferred twofyear suspension imposed in In re: Lucas, 02-1624 (La.8/30/02), 825 So.2d 1090, is hereby made immediately executory. All costs and expenses in the matter are assessed against respondent, George Edward Lucas, Jr., Louisiana Bar Roll number 19689, 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 October 2003, Mr. Hayes reported that respondent had been ill for some time, and that they had been unable to meet. However, Mr. Hayes noted that it otherwise appeared respondent was satisfying the conditions of his probation.

      . On June 22, 2004, respondent faxed to the disciplinary board a motion seeking a continuance of the revocation hearing, on the ground that he had a conflict with the hearing date. Specifically, respondent asserted that he was scheduled to appear in court in the matter entitled Liberal Loans of Louisiana, Inc. v. John Thomas Stevens, Number 2003CV03190 on the docket of the Monroe City Court, and that he "cannot leave his client unrepresented in this matter.” However, upon contacting the clerk of the Monroe City Court, the board administrator's office was informed that respondent was not listed as counsel of record but was a co-defendant in the suit. Accordingly, respondent's motion for a continuance was denied.

      . Respondent's failure to comply with the conditions of his probation clearly constitutes a sufficient ground upon which to revoke probation. As such, we do not believe it is necessary to decide whether respondent engaged in additional instances of professional misconduct, as alleged in the newly filed complaints of Dennis V. Yacobozzi, II and Mickey Osborn. Rather, it would appear the ODC should continue its investigation in those matters and thereafter file formal charges, if appropriate.