text:
    THE FLORIDA BAR, Complainant, v. Shelley Goldman MAURICE, Respondent.
    No. SC04-700.
    Supreme Court of Florida.
    April 12, 2007.

      John F. Harkness, Jr., Executive Director and Kenneth L. Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Alan Anthony Pascal, Bar Counsel, The Florida Bar, Fort Laud-erdale, FL, for Complainant.
    Shelley Goldman Maurice, pro se, Boyn-ton Beach, FL, for Respondent.
   PER CURIAM.

We review a referee’s report regarding alleged ethical breaches by Shelley Goldman Maurice. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact and conclusions as to guilt. We disapprove the recommended discipline of a two-year suspension and impose in its stead a ninety-day suspension.

Factual and Procedural Background

The Florida Bar filed a one-count complaint against Maurice, alleging that Maurice engaged in unethical conduct in administering a probate estate. Maurice admitted several of the factual allegations of the complaint, denied others, and denied violating any of the rules with which she was charged. After a hearing, the referee filed his report with the Court. The referee found that Maurice prepared a quitclaim deed for a client, Helen Spelker, in November 1998, which transferred ownership of her condominium to her son, Gerard Spelker, and her grandson, William Spelker, but reserved to Helen Spelker a life estate in the condominium. The quitclaim deed was duly recorded in the public record, making Gerard and William Spelker vested remaindermen.

Several months later, in August 1999, Maurice prepared a new will for Helen Spelker. The will purported to bequeath the condominium and the rest of her belongings to Gerard and William Spelker, and to William’s mother, Pamela Spelker, to be divided equally among them. The will also required the heirs to sell the condominium to Arthur Oliveri (Oliveri), Helen Spelker’s neighbor and caretaker, for not less than $88,000.

Helen Spelker died in April 2001, without revoking the quitclaim deed to the condominium. The bulk of her estate was exempt or transferred upon her death, making the opening of an estate unnecessary. The heirs hired Maurice to probate the estate and to handle the proper disposition of the property. Without advising the heirs of the quitclaim deed making Gerard and William Spelker the full owners of the condominium upon Helen Spelker’s death or that no estate was necessary, Maurice opened formal estate proceedings. Maurice’s judgment regarding the necessity of an estate was clouded by her expressed concern for Helen Spelker’s caretakers.

Maurice further advised the heirs that a trust should be created for William Spelker, who was a minor, so that proceeds from the sale of the condominium could be placed in trust. The provision in the will requiring the heirs to establish a trust also named Maurice as trustee. Maurice’s actions created a conflict of interest between herself and the heirs and delayed the sale of the condominium.

The referee concluded that Maurice violated Rules Regulating the Florida Bar 4-1.1 (failing to provide competent representation to a client), 4-1.8 (failing to act with reasonable diligence and promptness in representing a client), 4-1.4(a) (failing to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information), 4-1.7(b) (representing a client when the lawyer’s exercise of independent professional judgment may be materially limited by the lawyer’s responsibilities to another client, to a third person, or the lawyer’s own interest), and 4-3.2 (failing to make reasonable efforts to expedite litigation consistent with the interests of the client). These violations were alleged in the Bar’s complaint. In addition, the referee found Maurice violated rule 4-8.4(a) (violating or attempting to violate the Rules of Professional Conduct).

The referee did not make any findings as to whether Maurice violated several rules with which she had been charged, specifically rules 4-1.4(b) (failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions), 4-1.5(a) (entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee), 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 4-8.4(d) (engaging in conduct that is prejudicial to the administration of justice). In effect, this is a finding that the Bar failed to present clear and convincing evidence that Maurice violated these rules.

With regard to discipline, the referee found two aggravating factors: (1) vulnerability of the victim and (2) substantial experience in the practice of law. The referee found the sole mitigating factor of absence of a prior disciplinary record. The referee recommended a two-year suspension, proof of completion of continuing legal education (CLE) programs entitled Practicing with Professionalism, Basic Probate and Guardianship, and Ethics Seminar, and reimbursement of the Bar’s costs.

Maurice challenges several of the referee’s factual findings, conclusions of guilt, and the recommendation of a two-year suspension.

Factual Findings

Maurice takes issue with the referee’s finding that she opened probate proceedings when it was unnecessary to do so, that she misrepresented to the heirs the need to open probate proceedings, and that she caused a delay in the -closing for the sale of the condominium owned by Gerard and William. She argues that the Bar failed to prove intent and that the record fails to establish intent.

The party contending that the referee’s findings of fact are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings. Fla. Bar v. Carlon, 820 So.2d 891, 898 (Fla.2002). Maurice testified that she prepared a quitclaim deed for Helen Spelker before she prepared Helen Spelker’s will. The quitclaim deed, which was introduced into evidence, transferred ownership of the condominium to Gerard and William Spelker.

Maurice testified that Helen Spelker wanted Gerard and William Spelker to have her condominium and did not want her other son or her daughter to have it or anything else. The quitclaim deed was prepared and filed to transfer ownership of the condominium. The quitclaim deed passed remainder interests in the condominium to Gerard and William Spelker when it was completed.

When Helen Spelker died, her life estate ended and Gerard and William Spelker became full owners of the condominium. Not only was there no need for the condominium to be passed through the estate, passing it through the estate was a nullity. It was no longer Helen Spelker’s condominium to bequeath. Because Maurice prepared the quitclaim deed and knew the deed had been recorded and never changed before Helen Spelker’s death, she knew it was not an estate asset.

Maurice’s justification for treating the condominium as an estate asset was that she wanted to ensure the disinherited children could not challenge Gerard and William Spelker’s ownership of the condominium. Maurice testified as follows:

The condominium went through the estate process for protection of creditors because we wanted to make sure that— There were two family members that were rather irate that they had not been in the estate, so we were attempting to protect the condominium as homestead property.
And then there was—and the will directs that the condominium, except for real estate which is presently put in convenience the name of myself and my son, Eric Spelker and William Spelker, everything else would go by rights of survivorship.
And the bills for the estate which were to be paid out of the sale of the proceeds of the property ... (inaudible).
So it was our duty to make sure that it went through the estate so it could be sold and protected from claims of creditors.

It is clear that the referee did not accept this explanation. A referee’s assessment of a witness’s credibility is reviewed for abuse of discretion. Fla. Bar v. Charnock, 661 So.2d 1207, 1209 (Fla.1995).

At least two other possible reasons exist for Maurice to open probate and treat the condominium as an estate asset — (1) to earn fees as the estate’s administrator; or (2) to ensure that Oliveri would be given the right of first refusal to buy the condominium from the new owners, Gerard and William Spelker. The referee did not find that Maurice opened probate to generate fees. Nor did he find that Maurice violated rule 4-1.5(a) (prohibiting an attorney from entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee).

The second possible motive, to ensure that Oliveri was given the right of first refusal, is supported by the findings. The referee found that Maurice’s judgment about the need for an estate “was clouded by her expressed concern for Helen Spelker’s caretakers” and that her opening an estate placed her “in conflict with the heirs of the estate who sought her counsel after Helen Spelker passed.” He concluded her conduct had violated rule 4-1.7(b) (prohibiting a lawyer from representing a client when the lawyer’s exercise of independent professional judgment may be materially limited by the lawyer’s responsibilities to another client, a third person, or by the lawyer’s own interest).

Here, there were two possible inferences to be drawn about Maurice’s motives for opening an estate and including the condominium as an estate asset when she knew the condominium already belonged to Gerard and William Spelker. Either one would have resulted in the violation of at least one of the rules charged. The referee obviously rejected one inference, but found the other. In addition, Maurice’s own testimony that she was trying to ensure that Oliveri was given the opportunity to buy the condominium supports the referee’s conclusion that her desire conflicted with her duties toward the heirs under the will.

We conclude that competent, substantial evidence supports the referee’s findings.

Conclusions of Guilt

Maurice also challenges the referee’s conclusions that she violated rules 4-1.1 (competent representation) and 4-1.8 (representing a client with a conflict of interest). “A referee’s findings of fact regarding guilt carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record.” Fla. Bar v. Brown, 905 So.2d 76, 80 (Fla.2005) (quoting Fla. Bar v. Wohl, 842 So.2d 811, 814 (Fla.2003)). “Absent a showing that the referee’s findings are clearly erroneous or lacking in evidentiary support, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee.” Fla. Bar v. Wohl, 842 So.2d 811, 814 (Fla.2003) (quoting Fla. Bar v. Sweeney, 730 So.2d 1269,1271 (Fla.1998)).

The referee found that Maurice violated rules 4-1.1, 4-1.3, 4-1.4(a), 4-1.7, 4-3.2, and 4-8.4(a). Significantly, Maurice was neither charged with violating nor did the referee conclude that she violated rule 4-1.8. Maurice may have meant to contest the referee’s conclusion that she violated rule 4-1.7.

The evidence and factual findings support the referee’s conclusion that Maurice violated rules 4-1.1 and 4-1.7(b). Maurice’s belief that the condominium could be treated as an estate asset although it had previously been deeded to Gerard and William Spelker is sufficient to establish a violation of rule 4-1.1. See generally Fla. Bar v. Batista, 846 So.2d 479 (Fla.2003) (holding that an attorney violated the competence rule by failing to determine the probable outcome in his clients’ cases within a reasonable time and failing to communicate the unavailability of a result to his clients). The referee found that probate proceedings were unnecessary, as most of Helen Spelker’s property was either exempt or transferred upon her death. Maurice failed to explain this to the heirs. Maurice opened an estate in an attempt to ensure that Oliveri was given the opportunity to purchase the condominium from Gerard and William Spelker. She did not tell Pamela Spelker or her attorney that the ownership of the condominium had been transferred to Gerard and William in November 1998 and she did not provide a copy of the quitclaim deed she had prepared. The referee found that Maurice’s judgment regarding the necessity of an estate was clouded by her expressed concern for Helen Spelker’s caretakers, one of whom was Oliveri. These actions establish a violation of rule 4 — 1.7(b) in that her desire to ensure that Gerard and William Spelker gave Oliveri a chance to purchase the condominium conflicted with her duty to her clients, Helen Spelker’s heirs.

Maurice has failed to meet her burden of proving that the referee’s conclusions that she violated rules 4-1.1 and 4 — 1.7(b) are clearly erroneous or lacking in eviden-tiary support. Accordingly, we approve the referee’s conclusions of guilt.

Aggravating and Mitigating Factors

Maurice argues that the referee failed to find several mitigating factors, including: (1) no prior disciplinary history; (2) Maurice is a self-starter who put herself through law school while working at a law firm and set up her own practice two years after law school; (3) the complaining party did not pay any money to Maurice and did not lose any during the course of Maurice’s representation; (4) she paid the Bar’s costs within two weeks of the referee’s decision; (5) she completed all required CLE credits during her reporting cycle and has never been in violation of the CLE requirements; (6) she has always taken more CLE than necessary; (7) she has conducted a seminar on real estate transactions; and (8) she is a chairperson and has been a chairperson of the local bar association’s real estate committee for the past four years. According to Maurice, the referee also failed to consider the mitigating factor that Maurice made a timely good-faith effort to make restitution or to rectify the consequences and there was no monetary loss to the complaining parties.

The Bar asserts that there is no basis in standard 9.3 of the Florida Standards for Imposing Lawyer Sanctions for the additional mitigating factors that Maurice claims exist and that the referee correctly found that the only mitigating factor extant here is the fact that Maurice has no prior disciplinary record.

A referee’s findings of mitigation and aggravation, like other factual findings, carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. Fla. Bar v. Arcia, 848 So.2d 296 (Fla.2003).

Some of the factors Maurice identifies could possibly relate to the mitigating factors identified in standard 9.3, as follows: (1) the absence of a dishonest or selfish motive (the complaining party did not pay any money to Maurice and did not lose any during the course of Maurice’s representation); (2) a timely good-faith effort to make restitution or to rectify the consequences of misconduct (she paid the Bar’s costs within two weeks of the referee’s decision; she completed all required CLE credits during her reporting cycle and has never been in violation of the CLE requirements); or (3) character or reputation (Maurice is a self-starter who put herself through law school while working at a law firm and set up her own practice two years after law school; she has always taken more CLE than necessary; she has conducted a seminar on real estate transactions; and she is a chairperson and has been a chairperson of the local bar association’s real estate committee for the past four years).

Maurice does not expressly tie these facts to any of the mitigating factors. Even if these “facts” are interpreted as relating to the mitigating factors identified above, Maurice has failed to demonstrate that the referee’s failure to find that these mitigating factors applied in this case was clearly erroneous or without support in the record. We therefore approve the referee’s findings regarding aggravating and mitigating factors.

Recommended Sanction

The referee recommended a two-year suspension, various courses of continuing legal education offered by the Bar, and payment of the Bar’s costs. Maurice argues that the recommendation of a two-year suspension is not supported by case-law or the standards. We agree and disapprove that recommendation.

The Court’s scope of review in reviewing a referee’s recommendation of discipline is broader than that afforded to the referee’s findings of fact because it is ultimately the Court’s responsibility to order the appropriate sanction. Fla. Bar v. Miller, 863 So.2d 231, 235 (Fla.2003); Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, 15, Fla. Const. Generally, however, we will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing caselaw and the Florida Standards for Imposing Lawyer Sanctions. Fla. Bar v. Brown, 905 So.2d 76, 83-84 (Fla.2005); Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

The referee cited no standards to support his recommendation of a suspension in this case, but some standards do apply. See Fla. Stds. Imposing Law. Sanes. 4.12 (suspension is appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury); 4.42 (suspension is appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury or when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury); 4.52 (suspension is appropriate when a lawyer engages in an area of practice in which the lawyer knowingly lacks competence, and causes injury or potential injury to a client); 4.62 (suspension is appropriate when a lawyer knowingly deceives a client and causes injury or potential injury).

As the standards do not suggest the appropriate length of a suspension, the Court examines caselaw to determine whether the referee’s recommendation of a two-year suspension has a reasonable basis. The referee did not cite to any cases in support of his recommendation. The cases cited by the Bar in its brief, Florida Bar v. Cimbler, 840 So.2d 955 (Fla.2002); Florida Bar v. Jordan, 705 So.2d 1387 (Fla.1998); and Florida Bar v. Theed, 246 So.2d 745 (Fla.1971), support suspension as the appropriate sanction, but also demonstrate that a- two-year suspension is too harsh.

In Cimbler, we suspended an attorney for one year, followed by three years’ probation, for neglecting to perform post-closing activities for a real estate transaction, failing to attend a hearing in a suit for specific performance, failing to notify his clients of their depositions, and other instances of neglect in three different cases. The referee found three aggravating factors: prior discipline for similar misconduct (ninety-day suspension and three years’ probation); multiple offenses; and indifference to restitution as to a specific client. The referee found six mitigating factors: timely and good-faith efforts to make restitution or to rectify the consequences of her misconduct; full and free disclosure in the disciplinary proceedings; reputation for good character; physical or mental disability; interim rehabilitation; and remorse.

In Jordan, we suspended the attorney for one year for failing to file an amended complaint within the twenty-day deadline in a civil suit; failing to return numerous phone calls from his co-counsel and his client; failing to respond to a show cause order from the trial court as to why the suit should not be dismissed for lack of prosecution, which resulted in the suit’s dismissal; failing to advise his co-counsel or his client of the suit’s dismissal; failing to seek reinstatement of the suit; and failing to advise his client to seek independent legal representation before attempting to negotiate with her to privately settle any claim she might have had against him for legal malpractice. The attorney had been previously disciplined four times, the fourth resulting in a ninety-one-day suspension. The last three of the four prior discipline cases resulted from similar misconduct.

In Theed, we suspended an attorney for one year for improperly handling the assets of an estate, including using estate funds for his own personal use; failing to administer the estate properly; failing to account to the parties whom he represented, ignoring their request for information, ignoring the request of their attorney, and failing to act properly in all respects as an attorney and executor. The attorney had repaid the estate, before the imposition of discipline, for the estate funds he had used.

The misconduct of the attorneys in these three cases was similar, but more egregious than Maurice’s. Maurice has been a member of the Bar for over two decades and has no prior discipline. Maurice’s actions resulted in the heirs and true owners of the condominium having to wait several months to obtain what was rightfully theirs, but she did not profit from it. Rather, she seems to have been motivated by a genuine but misguided desire to fulfill what she believed were Helen Spelker’s true wishes for the disposition of her property. According to her brief, she has already reimbursed the Bar for its costs and has already taken the CLE courses recommended by the referee.

Accordingly, based on the caselaw discussed above imposing one-year suspensions for more egregious misconduct of a repetitive nature, we conclude that the two-year suspension recommended by the referee is not reasonably supported by the caselaw. We disapprove that recommendation -and instead suspend Maurice for ninety áays. The other conditions recommended by the referee are approved.

Conclusion

Based on the foregoing, we approve the referee’s factual findings and conclusions as to guilt, but disapprove the referee’s recommended sanction of a two-year suspension. We approve the other recommended conditions concerning continuing legal education and reimbursement of the Bar’s costs.

Shelley Goldman Maurice is hereby suspended from the practice of law for ninety days. The suspension will be effective thirty days from the filing of this opinion so that Maurice can close out her practice and protect the interests of existing clients. If Maurice notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Maurice shall accept no new business from the date this opinion is filed until her suspension is completed.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Shelley Goldman Maurice in the amount of $1,399.00, for which sum let execution issue.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, C.J., concurs in result only.

      . Eric is Gerard Spelker’s middle name.

      . Despite Maurice’s argument, the referee did find this mitigating factor.

      . The Bar's complaint alleged Maurice violated rule 4-1.5 (a) (entering into an agreement for, charging, or collecting an illegal, prohibited, or clearly excessive fee), but the referee did not find a rule 4-1.5(a) violation.


source: Caselaw Access Project

author: PARIENTE, J.

license: Public Domain

text:
    AMERICAN HONDA MOTOR COMPANY, INC., Petitioner, v. Jennifer CERASANI, Respondent.
    No. SC05-1907.
    Supreme Court of Florida.
    April 12, 2007.

      Wendy F. Lumish, John R. Blue and Matthew J. Conigliaro of Carlton Fields, P.A., Miami, FL, for Petitioner.
    Theodore F. Greene, III of Krohn and Moss, Ltd., Sunrise, FL, and Scott M. Cohen, Chicago, IL, for Respondent.
   PARIENTE, J.

In this case we decide whether a long-term lessee of an automobile may sue for breach of warranty under the federal Mag-nuson-Moss Warranty Act. The Second District Court of Appeal answered this question in the affirmative in Cerasani v. American Honda Motor Co., 916 So.2d 843 (Fla. 2d DCA 2005), and certified conflict to the extent that the First District Court of Appeal held to the contrary in Sellers v. Frank Griffin AMC Jeep, Inc., 526 So.2d 147 (Fla. 1st DCA 1988). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The issue presented by the certified conflict requires interpretation of both the federal Magnuson-Moss Warranty Act and Florida’s Motor Vehicle Warranty Enforcement Act, more commonly known as the “Lemon Law.” We hold that a long-term lessee who is entitled to enforce a warranty under Florida’s Lemon Law also has a cause of action under the Magnuson-Moss Warranty Act. We approve the Second District’s decision in this case to the extent that court reached the same conclusion and disapprove Sellers to the extent that the First District held there that an automobile warranty is not enforceable under the Magnuson-Moss Warranty Act unless the automobile has been sold.

FACTS AND PROCEDURAL HISTORY

Jennifer Cerasani acquired a new Honda Civic through a long-term lease and began to have problems with the car. She took the car to a Honda dealership for repairs several times but remained dissatisfied with the results. Cerasani eventually filed suit against the manufacturer, American Honda, under the Magnuson-Moss Warranty Act (“MMWA” or “the Act”). She alleged one count of breach of written warranty and one count of breach of implied warranty. The trial court dismissed the complaint with prejudice on grounds that the provisions of the MMWA covering a “written warranty” as defined in the Act do not apply to persons who lease rather than purchase vehicles, and that Cerasani was not in privity of contract with Honda as required under Florida law for an implied warranty claim.

The Second District affirmed the dismissal of the implied warranty claim but reversed the dismissal of the claim based on Honda’s express new-car warranty. The Second District concluded that the first count of Cerasani’s complaint was legally sufficient to withstand the motion to dismiss. The Second District determined that Cerasani’s assertions that the warranty was part of the basis of the bargain in the sale of the car to the lessor, “Honda Leasing,” and that the sale was for purposes other than resale were sufficient to allege a “written warranty” as defined by the MMWA. Further, the Second District ruled that Cerasani satisfied the second and third of the three alternative definitions of “consumer” under the MMWA because she was a person to whom the car was “transferred during the duration” of a written warranty and because she was entitled under the terms of the warranty to enforce the warranty, as reflected by Honda’s willingness to provide repair service. See Cerasani, 916 So.2d at 846-47.

The Second District certified conflict with Sellers on the issue of whether the MMWA applies to lease transactions. Id. at 847. In Sellers, which involved a lease of a motor vehicle from a dealership which then assigned its interest in the lease to a finance company, the First District held that “there must be an identifiable purchase and sale before the provisions of the Magnuson-Moss Act apply.” 526 So.2d at 156.

ANALYSIS

The issue before us — whether a long-term lessee such as Cerasani is entitled to bring a cause of action for breach of a written warranty under the MMWA — is a matter of pure statutory interpretation. Our review of a lower court’s ruling on an issue of statutory interpretation is de novo. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). In construing a statute, this Court endeavors to effectuate legislative intent, which is primarily derived from the language used in the enactment. See Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006).

Congress enacted the MMWA to enhance the enforceability of warranties on consumer products and protect the “ultimate user of the product.” Cerasani 916 So.2d at 845 (quoting O’Connor v. BMW of N. Am., LLC, 905 So.2d 235 (Fla. 2d DCA 2005)). The MMWA authorizes a lawsuit for damages and other equitable relief by “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract.” 15 U.S.C. § 2310(d)(1) (2000). The MMWA’s definition of “consumer” is critical in that only a person or entity defined as a consumer may bring a cause of action under the Act. To qualify as a consumer who may file suit under the Act, a person must come within one of the three alternative categories of consumer:

The term “consumer” means [Category One] a buyer (other than for purposes of resale) of any consumer product, [Category Two] any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and [Category Three] any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).

15 U.S.C. § 2301(3) (2000) (bold text supplied). An individual qualifies as a consumer under the MMWA if he or she meets any of these three definitions. Ryan v. Am. Honda Motor Co., 186 N.J. 431, 896 A.2d 454, 456 (2006).

For the reasons that follow, we conclude that because the facts as alleged in Cerasani’s complaint would create a cause of action under chapter 681, Florida Statutes (2006) (the Lemon Law), she is entitled to enforce the obligations of the warranty “under applicable State law,” and therefore qualifies as a consumer under the second part of Category Three. Because this conclusion renders unnecessary an additional determination of consumer status under Categories One or Two or the first part of Category Three, we decline to address whether and under what circumstances a lessee can qualify as a consumer under these alternative criteria.

As noted, Category Three of section 2301(3) provides that a person may be a consumer if entitled to enforce the warranty either by the terms of the warranty or under applicable state law. The Second District focused on the terms of the warranty in concluding that the allegations in her complaint qualified Cerasani as a Category Three consumer. The court stated:

In the present case, we hold that Cer-asani has alleged sufficient facts in her amended complaint to qualify as a category three consumer under the Act. Cerasani alleged that she was able to enforce the terms of the warranty: she took the vehicle to authorized Honda dealerships for repair on numerous occasions, and Honda never asserted that the vehicle was not covered by the written warranty.

Cerasani, 916 So.2d at 847. The Third District has similarly concluded, based on repair and service records, that' a lessee qualified as a Category Three consumer entitled to enforce the warranty under the MMWA. See Mesa v. BMW of N. Am., LLC, 904 So.2d 450, 456 (Fla. 3d DCA 2005) (“Mesa was entitled to enforce the manufacturer’s written warranty, as evidenced by the service and repair records of the vehicle.”).

In this case, the Second District did not address whether Cerasani also qualified as a Category Three consumer on grounds that she was entitled to enforce the warranty under state law. However, it relied on its previous decision in O’Connor v. BMW of North America, LLC, 905 So.2d 235, 240-41 (Fla. 2d DCA 2005), in which it had concluded that a lessee qualified as a Category Three consumer both because repair and service records established that she was able to enforce the warranty and because the manufacturer admitted that she was entitled to enforce the warranty under Florida’s Lemon Law. Cerasani 916 So.2d at 846-47. Courts in other jurisdictions have also conferred Category Three consumer status on lessees based on their entitlement to enforce warranties under state law. See Voelker v. Porsche Cars of N. Am., Inc., 353 F.3d 516, 524 (7th Cir. 2003); Dekelaita v. Nissan Motor Corp. in USA, 343 Ill.App.3d 801, 278 Ill.Dec. 649, 799 N.E.2d 367, 372 (2003); Ryan, 896 A.2d at 457-58.

Florida’s Lemon Law, contained in chapter 681, Florida Statutes (2006), entitles lessees to enforce the obligations of automobile warranties. See, e.g., BMW of N. Am., Inc. v. Singh, 664 So.2d 266 (Fla. 5th DCA 1995) (applying chapter 681 to claim by automobile lessee). Section 681.103 imposes a duty on the manufacturer (or its authorized service agent) to conform a vehicle to the warranty if the nonconformity is reported by the “consumer” within the “Lemon Law rights period.” Section 681.102(4) includes lessees within its definition of “consumer,” and section 681.104(2)(b) provides that when a vehicle does not conform to the manufacturer’s warranty, “[t]he lessee shall receive the lessee cost and the lessor shall receive the lease price less the lessee cost.” Finally, section 681.112(1) authorizes a consumer to file suit to recover damages caused by a violation of the Lemon Law, and section 681.112(3) specifies that other rights and remedies are not foreclosed by chapter 681. Thus, the Lemon Law qualifies lessees for Category Three consumer status under 15 U.S.C. § 2301(3).

American Honda asserts that Category Three does not apply to lessees because the statutory language requires that the warranty at issue constitute a “written warranty” as defined by 15 U.S.C. § 2301(6), which American Honda interprets as requiring a sale of the vehicle to the ultimate consumer. Cerasani claims that her complaint alleged a qualifying sale establishing a “written warranty” for purposes of Category Three status under either the terms of the warranty or applicable state law. Precedent is split on whether a “written warranty” as defined by section 2301(6) is necessary under Category Three. The United States Court of Appeals for the Seventh Circuit and the New Jersey Supreme Court have held that a “written warranty” as defined under the Act is not required for Category Three consumer status. See Voelker, 353 F.3d at 525; Ryan, 896 A.2d at 457 (deferring to Voelker as “persuasive and directly on point”). Neither court explained its conclusion in terms of the principles of statutory construction. Several state supreme courts have reached the contrary conclusion and held that Category Three consumer status does require a “written warranty” as defined by the MMWA based on a qualifying sale. See Parrot v. Daimler-Chrysler Corp., 212 Ariz. 255, 130 P.3d 530, 536 (2006); DiCintio v. Daimler-Chrysler Corp., 97 N.Y.2d 463, 742 N.Y.S.2d 182, 768 N.E.2d 1121, 1124 (2002).

Section 2301(3) comprises a single sentence in which the term “written warranty” is used in the Category Two definition which immediately precedes the language creating Category Three:

The term “consumer” means ... any person to whom [a consumer] product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).

15 U.S.C. § 2301(3) (emphasis supplied). It is clear that the use of the term “written warranty” in Category Two invokes the definition of “written warranty” set forth in section 2301(6). With the use of the term “written warranty” in Category Two in mind, we read the language creating Category Three as follows:

The term “consumer” means ... any other person who is entitled
[a] by the terms of such warranty (or service contract) or
[b] under applicable State law
to enforce against the warrantor (or service contractor) the obligations of the warranty.

The demonstrative adjective “such,” meaning “of the same type, class, or sort,” refers to the antecedent noun “written warranty.” Cf. Merriam-Webster’s Collegiate Dictionary 1176 (10th ed. 1999) (defining “such”); Bryan A. Garner, Gamer’s Modem American Usage 758 (2003) (explaining use of “such” as a demonstrative adjective). Thus, the first alternative in Category Three requires that the warranty be a “written warranty” as defined in section 2301(6). However, Congress did not use the term “written warranty” or “such warranty” in setting forth the criteria for the second alternative, instead using the generic term “the warranty.” Therefore, we conclude that the type of warranty enforceable under state law that will enable a person to qualify as a Category Three consumer is not limited to the narrow definition of “written warranty” provided in the MMWA.

The criteria for a warranty enforceable under applicable state law should be derived not from the MMWA definition of “written warranty” but rather from applicable state law. Florida’s Lemon Law includes the following definition of a warranty enforceable under chapter 681:

“Warranty” means any written warranty issued by the manufacturer, or any affirmation of fact or promise made by the manufacturer, excluding statements made by the dealer, in connection with the sale of a motor vehicle to a consumer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is free of defects or will meet a specified level of performance.

§ 681.102(23), Fla. Stat. (2006). This language defines warranty as either “any written warranty,” without further qualification, or “any affirmation of fact or promise” made in connection with the sale of a motor vehicle, as follows:

“Warranty” means
any written warranty issued by the manufacturer, or
any affirmation of fact or promise made by the manufacturer, excluding statements made by the dealer, in connection with the sale of a motor vehicle to a consumer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is free of defects or will meet a specified level of performance.

Under this construction, which is consistent with provisions throughout chapter 681 specifically bringing motor vehicle lessees within its operation, a sale is unnecessary to trigger the protections of the Lemon Law under a written warranty. See § 681.102(4), (9), (11)-(13), Fla. Stat. (2006) (including lessee within definition of “consumer” and providing definitions of “lease price,” “lessee,” “lessee cost,” and “lessor”); § 681.104(2)(b), Fla. Stat. (2006) (providing that in the case of vehicles that do not conform to the manufacturer’s warranty after a reasonable number of repair attempts, “[t]he lessee shall receive the lessee cost and the lessor shall receive the lease price less the lessee cost”).

Our construction of the Category Three criterion for warranties enforceable under state law, as filtered through the Florida Lemon Law, is also consistent with the MMWA’s purpose of preventing warranty deception and protecting consumers. We therefore reject American Honda’s assertion that the MMWA is inapplicable to leased goods under any circumstances, even where states include lessees within consumer protection statutes such as the Florida Lemon Law. Further, requiring that the lease be in connection with a sale, which is not required by chapter 681, would lead to inequitable results. For example, the lessee in a case such as Sellers, in which there was an assignment of the lease to a finance company but evidently no sale, would be excluded from the MMWA, but the lessees in O’Connor, Mesa, and this case, in which sales to finance companies were alleged, would fall within the Act’s protection. We conclude that in authorizing coverage under the MMWA for warranties that are enforceable under state law, Congress provided a means by which this type of hyper-technical distinction contrary to the Act’s purpose could be avoided.

The allegations in Cerasani’s complaint are sufficient to make her a Category Three consumer entitled to enforce Honda’s new motor vehicle warranty under state law. She alleged that Honda supplied the warranty to the lessor, who then assigned it to Cerasani, and that she submitted the car to the dealer at least seven times in an unsuccessful attempt to have defects covered by the warranty remedied. Therefore, she meets the criteria for a consumer entitled to bring suit for damages under the MMWA.

CONCLUSION

We hold that a motor vehicle lessee who is entitled to enforce the terms of a warranty under chapter 681, Florida Statutes, is also entitled to file suit under the Mag-nuson-Moss Warranty Act. Our rationale is that a lessee with a cause of action under chapter 681 qualifies as a Category Three consumer “entitled ... under applicable State law to enforce against the war-rantor ... the obligations of the warranty” under 15 U.S.C. § 2301(3). Under the complaint filed in the circuit court, the respondent in this case, Cerasani, falls within this criterion and thus has a cause of action under the MMWA as a Category Three consumer. The Second District also concluded that Cerasani’s complaint was sufficient to make her a consumer under the Act, but on different grounds that we need not and do not reach. Thus, we approve its decision that the trial court erred in dismissing Cerasani’s complaint, but on the grounds specified herein. Turning to the conflict case, Sellers, we conclude that the First District’s determination that a sale of a motor vehicle is necessary to make a warranty on the vehicle enforceable under the Act is contrary to our decision today. We therefore disapprove Sellers ’ holding as to the MMWA.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.

      . The Act provides:
      The term “written warranty’’ means—
      (A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
      (B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking,
      which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.
      15 U.S.C. § 2301(6).


author: PER CURIAM.

text:
    James D. FORD, Appellant, v. STATE of Florida, Appellee.
    No. SC04-1611.
    Supreme Court of Florida.
    April 12, 2007.

      Ryan Thomas Truskoski, Orlando, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Florida and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons expressed below, we affirm the circuit court’s order denying postconviction relief.

FACTS AND PROCEDURAL HISTORY

The facts of this crime are set forth in our opinion from Ford’s direct appeal, Ford v. State, 802 So.2d 1121, 1125-27 (Fla.2001). For the purposes of these proceedings, we note that Ford was convicted of sexual battery with a firearm, child abuse, and two counts of first-degree murder for the deaths of Kimberly and Gary Malnory. Id. at 1126. The jury recommended death on each murder count by an eleven-to-one vote, and the court imposed a sentence of death on each count based on four aggravating circumstances, several statutory mitigating circumstances, and several nonstatutory mitigating circumstances. Id. at 1126-27. The trial court also imposed a sentence of 19.79 years’ imprisonment (with a three-year mandatory minimum term) on the sexual battery with a firearm count and a concurrent five-year sentence on the felony child abuse count. Id. at 1127. This Court denied relief on all claims on Ford’s direct appeal, affirming Ford’s death sentences, id. at 1125, and the U.S. Supreme Court denied certiorari review in 2002. See Ford v. Florida, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002).

In 2003, Ford filed a motion for postcon-viction relief, alleging three claims of ineffective assistance of counsel: (1) trial counsel pursued the defense of voluntary intoxication over Ford’s objection and without his permission or consent; (2) trial counsel waived Ford’s speedy trial rights over his objection and without his permission; and (3) trial counsel failed to present evidence showing that Ford was mentally retarded. The trial court held an eviden-tiary hearing on May 12, 2004; during this hearing, Ford abandoned his third claim for relief. Three witnesses were called at the evidentiary hearing: Ford appeared on his own behalf, and his two trial attorneys, Paul Sullivan and Paul Alessandro-nio, appeared on behalf of the State. The trial court issued its order denying relief on all claims on July 12, 2004, and this appeal follows.

POSTCONVICTION CLAIMS

Ford asserts that the trial court improperly denied relief on his two remaining ineffective assistance of counsel claims, regarding the use of a voluntary intoxication defense and the waiver of his right to a speedy trial.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

There is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689,104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”

1. Voluntary Intoxication Defense

Ford essentially argues that his trial counsel was ineffective for advancing a voluntary intoxication defense despite the fact that he did not agree to it and felt it would operate as an admission of guilt to the murder charges against him. First, we find this claim to be refuted by the record, inasmuch as it makes clear that Ford’s intoxication was not advanced as an admission of his guilt. Ford himself testified at the evidentiary hearing below that his attorneys never admitted his guilt or told the jury that he was responsible for the crimes. The trial records illustrate, that the primary defense theory at Ford’s trial was to question the adequacy of the State’s case, focusing on mistakes made in the collection, preservation, and testing of physical evidence, and how human error could diminish the force of the scientific evidence admitted. Further, to the extent that voluntary intoxication was advanced as a defense, the transcripts show that Sullivan used such evidence not as an admission of guilt, but to suggest that Ford would have been too intoxicated to spend the entire day planning the crimes, as the State suggested, and thus could not have been responsible for them. Accordingly, Ford’s claim that defense counsel admitted his guilt through the use of a voluntary intoxication defense does not stand up to scrutiny, first because the evidence was used to suggest Ford was not responsible for the crimes; second, to the extent it was offered as a defense, it was done to defeat the premeditation element of the murder charge and was only mentioned briefly towards the end of defense counsel’s closing arguments. The record demonstrates that voluntary intoxication clearly did not operate as a focal point of defense counsel’s overall trial strategy. Thus, we find this argument to be refuted by the record.

We also agree with the lower court that, to the extent defense counsel did present evidence to the jury regarding Ford’s possible intoxication on the day of the murders, such conduct by defense counsel was strategic in nature and does not constitute deficient performance under Strickland. As noted above, this Court in Occhicone clearly established that counsel’s decisions regarding trial strategy are protected if other courses of action were considered and if the decision was reasonable under the norms of professional conduct. 768 So.2d at 1048. In the instant case, defense counsel was faced with significant direct evidence linking Ford to the crime, the client’s repeated denial of involvement, and the expectation that the State itself would introduce evidence of Ford’s alcohol consumption on the day of the crime. Testimony from the evidentia-ry hearing below makes clear that defense counsel consulted with Ford on how to reconcile these factors. Ford’s own testimony at the evidentiary hearing illustrates that he agreed to the jury instruction on voluntary intoxication; furthermore, he agreed that the voluntary intoxication defense was presented in such a way as to suggest that Ford had not committed the crimes because he was too intoxicated to have performed them consistent with how the State theorized the murders had occurred. The defense memorandum introduced by the State at the evidentiary hearing further emphasizes that Ford’s defense team was struggling with how to both respect Ford’s claims of innocence while attempting to use the evidence of possible intoxication to his advantage.

Accordingly, we conclude that Ford has not overcome the presumption that “the challenged action ‘might be considered sound trial strategy,’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, since trial counsel presented evidence of intoxication to the jury only after much deliberation and in a fashion designed to serve the best interests of the client. As stated in Dufour v. State, 905 So.2d 42, 52 (Fla.2005), “[t]his Court has held that it will not second-guess counsel’s strategic decisions concerning whether an intoxication defense will be pursued.” For all of the reasons discussed above, we uphold the trial court’s denial of relief on this claim.

2. Right to a Speedy Trial

Ford also alleges that trial counsel was ineffective for waiving his right to a speedy trial, claiming this allowed the State additional time to put together a stronger case against him. Furthermore, Ford asserts that he consistently instructed trial counsel not to waive any of his rights, and that he was coerced into agreeing otherwise.

In denying this claim after the evidentia-ry hearing, the trial court noted that it was Ford himself who insisted on the DNA testing that necessitated continuances, arguing that it would exonerate him of the crimes; furthermore, it was apparent that counsel could not have rendered effective assistance if Ford’s right to an immediate and speedy trial had been exercised. The lower court found that the defense strategy, evidence, and the team of experts put together by counsel constituted not only a reasonable strategy, but a strategy necessary to adequately defend Ford’s case. We find no error in the lower court’s conclusion that, as with the first claim, Ford has failed to establish deficient performance of counsel, thereby failing to satisfy the first prong of Strickland.

First, Ford’s arguments regarding the speedy trial waiver are not borne out by the testimony given at the evidentiary hearing below. On the one hand, Ford testified that he did not realize he was waiving his speedy trial right when he agreed to trial counsel’s first request for a continuance. Echoing this concern, Sullivan testified that despite his considerable efforts to communicate his strategy, “looking back,” he realized perhaps Ford may not have clearly understood both the need for the continuance and how it would serve as a waiver of his speedy trial rights. However, the testimony is clear from all three witnesses below, Ford and the attorneys, that the speedy trial issue was frequently discussed, and that each time it would surface, both Sullivan and Alessan-dronio would ultimately convince Ford that the additional time was necessary to adequately prepare his defense. In addition, Ford did not dispute that he insisted upon the need for DNA testing, believing it would exonerate him, and also that he provided a lengthy list of possible witnesses to his attorneys to use for his defense, each of whom would need to be located, interviewed, and deposed.

The testimony regarding any supposed coercion is conflicting. Ford testified that he felt forced into agreeing to a continuance after a meeting with his attorneys at the courthouse. Sullivan testified, however, that he did not specifically remember this meeting, and Alessandronio remembered only that Ford had agreed that the attorneys should ask for more time if they felt it was necessary. There were no additional details given in the briefs or the testimony below regarding when this meeting took place. However, based on a review of the trial record, it appears that Ford is referring to a hearing that took place on February 5, 1999, in which the State submitted a written motion for a continuance and defense counsel made a similar oral motion. The trial judge’s order granting the joint motion for a continuance states: “The Court called a recess to allow counsel to consult with Ford as to whether the Defendant would join in the defense request for continuance.... The Defendant, after private consultation with counsel, returned, and on the record joined in the defense request for the continuance.” The circuit court minutes from that hearing indicate the Court asked Sullivan that, if he wished to continue the trial, she would like a speedy trial waiver from Ford, as it appeared to her that these rights had already been waived. The minutes then indicate that the Court took a thirty-minute recess, and that Ford agreed to continue the case upon returning.

Ultimately, we conclude that Ford has not demonstrated a successful Strickland claim because we find no error in the trial court’s conclusion that trial counsel’s actions were professionally reasonable. Sullivan testified not only to his consultations with Ford, but that a refusal to waive Ford’s right to a speedy trial could have resulted in the State having the DNA testing expedited, leaving the defense with no way to counter the compelling, evidence of guilt. Both attorneys testified that they would not have been able to present the substantial defense they did if they were forced to comply with the limited speedy trial time frame given the complex nature of the case and evidence involved. In addition, all three postconviction witnesses testified that they discussed Ford’s speedy trial rights together frequently, and each time his attorneys were successful in convincing Ford to agree that additional time was necessary. Based on the testimony presented below, we agree with the trial court that trial counsel made a reasoned, strategic decision regarding the need for more time, discussed these needs with the client, and asked for the continuances necessary to prepare a defense. Accordingly, we agree with the court below that Ford has not established deficient performance on the part of trial counsel, and thus his ineffective assistance of counsel claim must fail.

CONCLUSION

For the reasons expressed above, we affirm the circuit court’s denial of postcon-viction relief.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . The court found that the following aggravating circumstances had been established for both murders and assigned each a degree of weight: (1) the murder was committed in an especially heinous, atrocious, or cruel manner (HAC) (great weight); (2) the murder was committed in a cold, calculated, and premeditated fashion (CCP) (great weight); (3) the murder took place during the commission of a sexual battery (great weight); and (4) Ford previously was convicted of another capital felony, i.e., the contemporaneous murder (great weight). See Ford, 802 So.2d at 1127 n. 1.

      . The court addressed the following statutory mitigating circumstances as they related to both murders and assigned each a degree of weight: (1) no significant history of prior criminal activity (proven, some weight); (2) extreme mental or emotional disturbance (not proven, no weight); (3) extreme duress (not proven, no weight); (4) impaired capacity (not proven, no weight); (5) the young mental age of the defendant (proven, very little weight). See Ford, 802 So.2d at 1127 n. 2.

      .The court addressed the following nonstatu-tory mitigating circumstances as they related to both murders and assigned each a degree of weight: (1) Ford was a devoted son (proven, very little weight); (2) Ford was a loyal friend (proven, very little weight); (3) Ford is learning disabled (proven, no weight); (4) mild organic brain impairment (not proven, no weight); (5) developmental age of fourteen (proven, no weight); (6) family history of alcoholism (this circumstance was proven but it is not mitigating vis-a-vis the death penalty in general, no weight); (7) chronic alcoholic (proven, very little weight); (8) diabetic (this circumstance was proven but it is not mitigating vis-a-vis the death penalty in general, no weight); (9) excellent jail record (proven, some weight); (10) engaged in self-improvement while in jail (proven, some weight); (11) the school system failed to help (proven, very little weight); (12) emotional impairment (not proven, no weight); (13) mentally impaired (not proven, no weight); (14) impaired capacity (not proven, no weight); (15) not a sociopath or a psychopath (this circumstance was proven but it is not mitigating vis-a-vis the death penalty in general, no weight); (16) not antisocial (this circumstance was proven but it is not mitigating vis-a-vis the death penalty in general, no weight); (17) the alternative sentence is life without parole (this circumstance was proven but it is not mitigating visa-vis the death penalty in general, no weight). See Ford, 802 So.2d at 1127 n. 3.

      . As noted in the order denying relief, defense counsel either did not obtain expert witnesses regarding mental retardation or they were unavailable. However, after the trial court explained that it would dismiss this claim without prejudice and reconsider it should Ford renew the issue at a later time, he stated at the evidentiary hearing that he no longer wished to pursue this claim and was waiving it. The court conducted a lengthy colloquy with Ford on the topic and concluded that he knowingly and intelligently waived this claim.
      In addition, the State introduced testimony and medical records related to Ford’s mental status. Ford’s trial attorney, Paul Sullivan, testified that all mental retardation testing done prior to trial indicated that Ford did not suffer from any retardation. In addition, the records introduced indicated that Ford had a full scale IQ of 88. According to the trial court in its order denying relief, reviewing those records confirmed that Ford was warranted in waiving this claim.

      . In denying relief on this claim, the court below dismissed it as moot, finding that she did not permit voluntary intoxication as a defense during the guilt phase of the trial. She noted that the voluntary intoxication jury instruction was only given during the penalty phase of the trial, and thus went solely to mitigation, not to guilt.
      However, Ford correctly asserts that the trial judge did permit voluntary intoxication as a defense during the guilt phase. The trial record clearly indicates that a voluntary intoxication instruction was given in relation to the charge of first-degree premeditated murder and child abuse. However, based on our review of the full record in this case, and our close scrutiny of Ford’s substantive claims, we conclude that Ford is not entitled to relief based on this one error in the trial judge’s order denying relief. Because we have independently determined that Ford’s claims are without merit, we find that error harmless beyond any reasonable doubt.

      . Since we find that Ford has failed to establish deficient performance, this is sufficient to conclude that he has not satisfied the Strickland test for ineffective assistance of counsel. See Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001) ("[B]ecause the Strickland standard requires establishment of both prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.”).


author: PER CURIAM. WELLS, J.,

text:
    THE FLORIDA BAR, Complainant, v. Patricia DEL PINO, Respondent.
    No. SC05-734.
    Supreme Court of Florida.
    April 19, 2007.

      John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Randi Klayman Lazarus, Bar Counsel, Miami, FL, for Complainant.
    John A. Weiss, Tallahassee, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Patricia Del Pino be found guilty of professional misconduct and disbarred. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons set forth below, we approve the referee’s findings of fact and conclusions of guilt, but disapprove the recommendation of disbarment and suspend Del Pino for three years.

Factual Background,

These proceedings commenced on May 12, 2005, when the Bar filed a complaint against Del Pino charging her with misconduct after she was convicted of two federal felonies — tax evasion and mail fraud — in the United States District Court for the Southern District of Florida. Del Pino pled guilty to both felonies and was sentenced to three years of probation, with conditions. She was suspended under the felony suspension rule on March 22, 2005, effective April 22, 2005. See Fla. Bar v. Del Pino, 900 So.2d 555 (Fla.2005) (table); R. Regulating Fla. Bar 3-4.4, 3-7.2.

The Bar’s complaint mirrored the criminal charges and alleged Del Pino pled guilty to signing a false and fraudulent Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, in violation of 26 U.S.C. § 7201; the complaint also alleged Del Pino was charged with and pled guilty to one count of mail fraud in violation of 18 U.S.C. § 1341 after she used the mail to deliver false and fraudulent financial information to a mortgage lender for the purchase of a condominium. Further, the complaint alleged Del Pino’s actions violated Rules Regulating the Florida Bar 4-8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 4-8.4(e) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Following a hearing, the referee filed a report which concludes that the facts are “essentially undisputed.” Del Pino pled guilty to one count of tax evasion for preparing and signing a false and fraudulent Form 4868 Application for Automatic Extension of Time representing that she owed no taxes for 1998 when she owed substantially more, having earned over $120,000 in wages for that year. The federal court sentenced her to three years of probation, including 300 days of home detention, repayment of all taxes owed, with interest, in accordance with her ability to pay, mental health or substance abuse treatment or both as recommended by the probation department, 200 hours of community service, and a $100 assessment. The referee further found that Del Pino pled guilty to one count of mail fraud after participating in a fraudulent real estate closing involving the sale of a condominium on October 4, 2001. Del Pino signed a warranty deed, not as a grantor, but for the waiver of homestead purposes, in favor of the purported purchaser, Liana Alvarez. She knew when she signed the deed that Alvarez did not have the financial resources to buy the property, that the property was to remain under the control of Del Pino and Michael Arias (her estranged husband), and that the property “would be used by the respondent and her husband as their personal residence.” Del Pino was sentenced to three years of probation on the mail fraud charge, the sentence to run concurrently with her sentence on the tax evasion charge, with the same conditions.

The referee found Del Pino admitted that she failed to file timely tax returns from 1996 through 1999. She ultimately filed returns for these years in December 2001, after she found out, in September 2001, that she was being investigated by the Internal Revenue Service. She still owes penalties and interest for each of these years, but the exact amount she owes had not been determined at the time of the formal hearing.

The referee found Del Pino guilty of violating Rules Regulating the Florida Bar 3-4.3 (commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline), 3-4.4 (felony conviction is cause for automatic suspension and further disciplinary proceedings), 4-8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer is cause for discipline), and 4-8.4(c) (an attorney’s engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation is cause for discipline).

In considering the appropriate discipline, the referee found three aggravating factors and six mitigating factors. The aggravating factors were: (1) dishonest or selfish motive; (2) multiple offenses; and (3) experience in the practice of law. The mitigating factors were: (1) no prior disei-plinary record; (2) personal or emotional problems; (3) full and free disclosure to disciplinary board and cooperative attitude toward proceedings; (4) good character or reputation; (5) interim rehabilitation; and (6) remorse. The referee discussed Del Pino’s argument concerning the existence or nonexistence of a selfish or dishonest motive, but expressly rejected her arguments that she did not have a selfish or dishonest motive for her actions. He stated: “Her actions do not support this mitigating factor, particularly for the tax fraud offense, despite any psychological or emotional problems she may have been going through.” The referee recommended that Del Pino be disbarred effective, nunc pro tunc, March 22, 2005, with leave to apply for readmission after five years. The referee expressly stated that he was recommending nunc pro tunc disbarment “given the mitigating factors.” As support for the recommendation, the referee cited to Florida Bar v. McKeever, 766 So.2d 992 (Fla.2000); Florida Bar v. Forbes, 596 So.2d 1051 (Fla.1992); and Florida Bar v. Prior, 330 So.2d 697 (Fla.1976).

Del Pino petitioned this Court for review of the referee’s findings, asserting error in the referee’s conclusions that the aggravating factor of a dishonest or selfish motive applied and that the mitigating factor of lack of a dishonest or selfish motive did not apply. She also seeks review of the recommendation of disbarment, asserting primarily that the substantial evidence of mitigation makes a long-term suspension, rather than disbarment, the appropriate sanction for her misconduct. She does not challenge the findings of misconduct.

Analysis

Initially, we note that with the exceptions of the mitigating/aggravating factor of dishonest or selfish motive or lack thereof, neither party challenges the referee’s findings of fact or recommendations as to guilt. We therefore approve these without comment.

Discipline

We next consider the recommendation of discipline. Our scope of review is broader in reviewing a referee’s recommendation of discipline than it is in reviewing the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate discipline. See Fla. Bar v. Smith, 866 So.2d 41, 47 (Fla.2004); see also art. V, § 15, Fla. Const.

Del Pino argues that the extensive mitigation evidence she presented, and which the referee found, met her burden of proving that something less than disbarment is warranted in this case. After reviewing the eases and evaluating the aggravation and the mitigation evidence, we agree.

We first examine Del Pino’s contention that the referee erred in finding the aggravating factor of a selfish or dishonest motive. To succeed in challenging a referee’s findings of fact, an attorney must establish there is a lack of evidence in the record to support such findings or that the record clearly contradicts the referee’s conclusions. Fla. Bar v. Karten, 829 So.2d 883 (Fla.2002). A referee’s findings of mitigation and aggravation are also presumptively correct and are upheld unless clearly erroneous or without support in the record. Fla. Bar v. Arda, 848 So.2d 296 (Fla.2003).

We conclude the referee’s finding that Del Pino had a selfish motive for participating in the fraudulent transfer of the condominium is supported by the record evidence in this case, which includes Del Pino’s guilty plea to the crime of mail fraud for her participation in the fraudulent transfer. The proffer attached to her plea agreement supports the referee’s findings. Although Del Pino may have never intended to live or acquire a financial interest in the condominium, she admitted that her husband wanted the condominium so that he would not lose “the benefit of the bargain” to purchase a condominium worth approximately $1,200,000 for $600,000, pursuant to an option-to-purchase contract. The husband sought the acquisition to offset anticipated financial penalties impending in his own criminal difficulties.

However, because of the unique circumstances of this case, most particularly the compelling evidence of the emotionally and physically abusive relationship between Del Pino and her husband, we are convinced this aggravating factor is not entitled to the substantial weight it might command under other circumstances not present here. In fact, the Bar candidly conceded at oral argument that the aggravating factor of selfish motive with regard to this count was limited to the fact that someone related to Del Pino, i.e., her estranged husband, got a benefit from her actions. The Bar makes no claim that she acted for her own financial gain.

We further conclude that the referee’s finding that Del Pino had a selfish motive for preparing and signing a false and fraudulent application for an extension of time to file and pay her 1998 federal income taxes is supported by the record. The referee found Del Pino delayed having to pay over $30,000 in taxes that year as a result of the fraudulent application. Del Pino testified that she wrote that she owed no taxes for that year so that she would “not have to deal with it.” However, we agree with the referee that not having to deal with it was itself a selfish motive. No doubt there are millions of Americans who would prefer not to have to deal with filing and paying their federal income taxes each April, but have no choice under the law. As guardians of the law, lawyers have a special obligation to honor the law themselves, including the tax laws.

This aggravating factor is also entitled to substantial weight. We have frequently disciplined attorneys for failing to live up to the duty of every citizen to pay federal income taxes. See, e.g., Fla. Bar v. Smith, 650 So.2d 980 (Fla.1995) (suspending attorney for three years for tax evasion and causing a false statement to be made to the Federal Election Commission); Fla. Bar v. Nedick, 603 So.2d 502 (Fla.1992) (disbarring attorney based on conviction for attempting to evade or defeat tax in violation of federal law).

Accordingly, with the caveats set out above, we approve the referee’s findings, including his findings of aggravating and mitigating factors applicable to this case, and we next consider the appropriate discipline.

When an attorney has been convicted of a felony, disbarment is the presumptively correct discipline. Fla. Std. Imposing Law. Sanes. 5.11 The burden is upon the attorney to prove that something less than disbarment is warranted by the circumstances. Fla. Bar v. Arnold, 767 So.2d 438 (Fla.2000) (holding attorney, who had already been suspended in excess of five years and had presented extensive mitigation evidence, was entitled to discipline less than disbarment). We conclude that the facts before us are more akin to the cases Smith, 866 So.2d 41, and Florida Bar v. Tauler, 775 So.2d 944 (Fla.2000), than to the cases cited by the referee, McKeever, 766 So.2d 992, Forbes, 596 So.2d 1051, and Prior, 330 So.2d 697.

In Smith, 866 So.2d 41, we suspended an attorney for one year for failing to provide competent representation to clients in two immigration cases, for depositing client funds into her operating account instead of her trust account and using some of these funds to pay for office expenses instead of for the purposes for which the clients had given her the money, and for writing a check to a service company which was returned for insufficient funds. While her transgressions included the misuse of client funds held in trust, for which disbarment is the presumptively appropriate sanction, see Florida Bar v. Travis, 765 So.2d 689, 691 (Fla.2000), we concluded that the mitigation evidence was weighty and merited consideration.

Smith was a sole practitioner who, around the time the misconduct occurred, suffered from severe medical problems that resulted in emergency treatment on two occasions, several weeks of bed rest and intravenous fluids on several occasions, hospitalization for treatment after her unborn fetus died but failed to naturally abort, and an emergency surgical procedure after she hemorrhaged the following month. Smith admitted that she was not making the best decisions during this period. There was also evidence that Smith devoted her practice to helping the indigent and the poor and was forced to practice without support staff on occasion because of it. We concluded that these circumstances resulted in her judgment being so impaired that her culpability for her actions was diminished.

The mitigation evidence presented in the Tauler case was similar to that presented in Smith. There, the attorney also engaged in misappropriation of client funds. We expressly noted that the improper influence of Tauler’s spouse likely played a big role in Tauler’s misconduct, and we ultimately imposed a three-year suspension. Like Smith, Tauler presented evidence that she had provided extensive service to the indigent, and that she had diminished culpability because she suffered from extreme hardships. She had an overbearing husband with a serious back injury, which caused him to lose his medical surgical practice. In fact, her husband had filed for bankruptcy and they were in the process of losing their home.

We conclude that Del Pino’s mitigating evidence as determined by the referee is equally compelling as the circumstances we considered in Smith and Tauler. As noted above, the referee found six substantial mitigating factors: (1) no prior disciplinary record; (2) personal or emotional problems; (3) full and free disclosure to disciplinary board and cooperative attitude toward proceedings; (4) good character or reputation; (5) interim rehabilitation; and (6) remorse.

The record reflects without dispute that by all accounts, Del Pino was competent, professional, and organized before she began dating her husband, who became a dominant and negative influence in her life. In the months prior to her marriage she began to deteriorate emotionally and the deterioration continued after her marriage. Del Pino’s work suffered, and she stopped communicating with her friends and began taking the prescription drug Xanax, on which she became dependent. Arias, her husband, called her many times a day to check up on her, making it difficult for her to complete her work in a timely manner. She stopped driving her own vehicle to work and stopped carrying a cell phone. According to one witness she was always “devastated, crying.” Another witness testified that she went from a person who was very organized in every aspect of her life to someone without any control. She and her husband separated at least six times within the first few years of their marriage. Del Pino was diagnosed with anxiety disorder, dependent disorder, and other illnesses, including chronic fatigue syndrome. Although she continued to perform her attorney tasks, she let her personal matters slide. She was eventually forced to cut back to only part-time work for her firm and, then, to quit altogether. She testified that she did not state that her tax liability was $0 so that she would have extra money in her pockets, but only so she would not have to go through what to her had become a major emotional burden because of her anxiety and depression.

In contrast to these mitigating circumstances, we conclude the cases cited by the referee are inapposite and distinguishable on their facts. First, Prior is a Bar discipline case at the felony suspension stage. It does not apply to the circumstances extant here. Forbes, the case cited by the referee which is closest to the present case, is distinguishable. While the misconduct was similar (the respondent was indicted for filing false information on a loan application for a condominium he was developing and pled guilty to one count of a multi-count indictment), the mitigation evidence (cooperation with the federal authorities, remorse, no prior disciplinary record, and full cooperation with the disciplinary board) was less compelling than Del Pino’s and, ultimately, insufficient to overcome the presumption of disbarment. Importantly, in McKeever, the respondent’s misconduct was much more egregious than that of Del Pino. McKeever pled guilty to five counts of aggravated child abuse after he “disciplined” three boys by binding, blindfolding, and beating them on their naked bodies with a strap. The abuse took place over a five-month period. The eight mitigating factors (no prior disciplinary record, no dishonest or selfish motive, personal or emotional problems including marital problems and alcohol abuse, good character and reputation, mental or physical disability or impairment, interim rehabilitation, imposition of other penalties or sanctions, and remorse) were insufficient to overcome the presumption of disbarment because of the egregiousness of the misconduct.

We are also mindful of those cases in which a respondent’s drug addiction caused or contributed to the felonious conduct and resulted in suspension instead of disbarment. See Fla. Bar v. Hochman, 815 So.2d 624 (Fla.2002) (suspending attorney for three years, effective, nunc pro tunc, on the date of his felony suspension after he pled no contest to felony grand theft where mitigating evidence included drug and alcohol addiction); Fla. Bar v. Marcus, 616 So.2d 975 (Fla.1993) (suspending attorney for three years after conviction of felony for misappropriating client funds where attorney’s cocaine addiction was directly and causally linked to misconduct); Fla. Bar v. Corbin, 540 So.2d 105 (Fla.1989) (suspending attorney for three years; while acting as a circuit judge, the attorney was convicted of attempted sexual activity with a child twelve years of age or older, but less than eighteen years of age, with whom he stood in a position of familial or custodial authority; substantial mitigation included voluntarily entering and completing a residential alcohol treatment program); Fla. Bar v. Jahn, 509 So.2d 285 (Fla.1987) (suspending attorney for three years after he was found guilty of delivery of cocaine to a minor and possession of cocaine where the attorney’s drug addiction was one of several mitigating factors); Fla. Bar v. Rosen, 495 So.2d 180 (Fla.1986) (suspending an attorney for three years after he was convicted of knowingly and intentionally possessing cocaine with the intent to distribute); see also Fla. Bar v. Clark, 582 So.2d 620 (Fla.1991) (suspending attorney for three years after felony conviction on federal drug charges where substantial mitigating factors included the fact that the attorney was operating a law partnership with his father, who suffered from a drinking problem, and was attempting to carry his fathers caseload as well as his own).

CONCLUSION

In conclusion, we hold the substantial mitigation evidence presented by Del Pino and found by the referee, coupled with the Bar’s concession as to our evaluation of the aggravation, is sufficient to overcome the presumption of disbarment in this case. Without minimizing the seriousness of Del Pino’s misconduct, we take into account the facts that she did not misuse or misappropriate client funds and she became dependent on prescription drugs as a result of illnesses, depression, and attempts to escape an abysmal personal life (as opposed to recreational drug use). Weighing all of these factors, along with a consideration of our case law, we conclude a three-year suspension is appropriate.

Accordingly, Patricia Del Pino is hereby suspended from the practice of law for three years effective, nunc pro tunc, April 22, 2005, the date of her felony suspension. Del Pino shall continue to accept no new business until she is reinstated by order of this Court to membership in good standing of The Florida Bar.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Patricia Del Pino in the amount of $3,504.60, for which sum let execution issue.

It is so ordered.

ANSTEAD, PARIENTE, CANTERO, and BELL, JJ., concur.

WELLS, J., concurs in part and dissents in part with an opinion, in which LEWIS, C.J., and QUINCE, J., concur.

WELLS, J.,

concurring in part and dissenting in part.

I concur in the majority’s approval of the referee’s findings of fact and recommendations as to guilt.

I dissent from the majority’s not approving the referee’s report as to disbarment.

Respondent was convicted of federal felonies of tax evasion and mail fraud, based upon knowing pleas of guilty. Respondent admitted to not filing tax returns for the years 1996 through 1999. The referee found that respondent acted with a selfish motive. As the majority acknowledges, the presumptive discipline for the offenses in this case is disbarment. Fla. Std. Imposing Law. Sanes. 5.11.

The referee heard and considered the mitigation presented by respondent. Based upon the in-the-courtroom evaluation of the evidence concerning mitigation, the referee concluded that respondent did not present mitigation which overcame the presumption of disbarment.

In rejecting the referee’s report, the majority relies upon Florida Bar v. Smith, 866 So.2d 41 (Fla.2004), and Florida Bar v. Tauler, 775 So.2d 944 (Fla.2000). In neither of these cases did the referee recommend disbarment. In Smith, the referee recommended a two-year suspension, which this Court reduced to one. In Tau-ler, the referee recommended three years’ suspension, and this Court approved.

In the present case, I find no basis for the Court to disapprove the referee’s recommendation of the presumptive discipline of disbarment. Moreover, the public needs to have confidence that lawyers who commit felonies will receive the ultimate sanction of disbarment.

LEWIS, C.J., and QUINCE, J., concur.

      . This is in error. The effective date of Del Pino's felony suspension was April 22, 2005, thirty days after the Court’s order.


text:
    STATE of Florida, Petitioner, v. Kelvin FRANKLIN, Respondent.
    No. SC04-1523.
    Supreme Court of Florida.
    April 19, 2007.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Evelyn A. Ziegler, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Franklin v. State, 877 So.2d 19, 20 (Fla. 4th DCA 2004), in which the Fourth District Court of Appeal cited this Court’s decision in Ray v. State, 403 So.2d 956 (Fla.1981), for the proposition that “a lesser included offense, by definition, is an offense which carries a lesser penalty.” The Fourth District agreed with the appellant’s argument below that because his conviction and enhanced sentence for aggravated battery involving the discharge of a firearm and serious bodily injury do not carry a lesser penalty than the charged offense of second-degree murder, the former is not a lesser included offense of the latter under Ray. See Franklin, 877 So.2d at 20. The Fourth District thus reversed the aggravated battery conviction but certified the following question of great public importance to this Court:

WHERE THE EVIDENCE WOULD SUPPORT FINDINGS UNDER SECTION 775.08[7], FLORIDA STATUTES, THAT RESULT IN THE PENALTY FOR AGGRAVATED BATTERY BEING THE SAME AS FOR ATTEMPTED SECOND DEGREE MURDER, IS AGGRAVATED BATTERY A LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER?

Id. at 21 (on motion to certify a question of great public importance). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed the present case pending our disposition of Sanders v. State, 944 So.2d 203, 204 (Fla.2006), in which we addressed the following similar certified question:

IN ORDER FOR AN OFFENSE TO BE A LESSER-INCLUDED OFFENSE, MUST IT ' NECESSARILY RESULT IN A LESSER PENALTY THAN EITHER THE PENALTY FOR THE MAIN OFFENSE OR THE NEXT GREATER OFFENSE ON THE VERDICT FORM?

In answering the question in the negative, we clarified that “Ray does not require that the lesser included offense be lesser both in degree and in penalty.” Sanders, 944 So.2d at 207. We thus directed the respondent in the present case to show cause why we should not exercise our jurisdiction, summarily quash the decision being reviewed, and remand for reconsideration in light of our decision in Sanders. Upon consideration of the respondent’s response, we have determined to do just that.

We accordingly grant the petition for review in the present case, quash the decision under review, and remand this matter to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Sanders.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.