author: POLEN, J.

text:
    Christopher JEAN-MARIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3210.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a final order denying appellant Christopher Jean-Marie’s motion to withdraw his plea and a final order imposing judgment, conviction, and a sentence of eight years in state prison for grand theft auto and aggravated fleeing. For the reasons articulated herein, we affirm.

Jean-Marie was charged by information with grand theft auto, aggravated fleeing, and driving without a valid driver’s license. He entered an open plea of no contest to the charges. The plea was freely, voluntarily, knowingly, and intelligently made. A PSI was ordered and Jean-Marie’s sentencing set for a later date.

Before sentencing, Jean-Marie filed a motion to withdraw his plea. The motion stated that he was charged with second-degree murder subsequent to entering a plea in the case at bar. He argued that, given the severe, life-long impact the murder case might have on him, the “ends of justice would be served” if, and only if, he has the ability to testify in his own defense at his murder trial without being a convicted felon.

After reviewing the details of Jean-Marie’s plea colloquy, the trial court found that there was no good cause for the withdrawal of his plea in this case. The court explained:

It was not affected by any misapprehension whatsoever. There was absolutely no undue persuasion. The defendant’s own testimony is directly contrary to that, as well as the court’s observations. There was no ignorance on the part of the defendant at the time he entered into the plea and plea agreement.
Everything was explained in extraordinary detail to him and acknowledged by him. It was entered not by one not competent to know its consequence, but on the contrary, by someone who was completely competent to know its consequence and to have every possible question responded to, if he had any.
And further, the court finds that there is nothing to indicate that the ends of justice would be served by the withdrawal of the plea. The court finds in fact that the ends of justice would best be served by not allowing the withdrawal of the plea.
The court further finds as to the new case, 05-11741, there’s been some allusion as to whether or not the defendant will be able to testify in that case. The defendant has available to him in 05-11741 all of the rights that he gave up in 05-1749. He still has all of those available to him in 05-11741, including the right to remain silent or to testify, if he so chooses. And if he doesn’t choose to testify, that’s fine, but he’s certainly free to testify in that case if he wishes to.
And the fact that he’s entered a plea in another case does not in any way mean that he doesn’t have the right to exercise his right to testify in 05-11741, if he wishes to do so. So based upon all of those things, the court’s going to deny the defendant’s motion to withdraw his plea in 05-1749.

We agree with and fully adopt the trial court’s explanation for denying Jean-Marie’s motion to withdraw plea. The trial court did not abuse its discretion in denying the motion.

Affirmed.

STONE and FARMER, JJ., concur.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    SUPERIOR PROTECTION, INC., Appellant, v. Alberto MARTINEZ, Appellee.
    No. 2D05-2949.
    District Court of Appeal of Florida, Second District.
    June 21, 2006.
    N. James Turner of N. James Turner, Esq., P.A., Orlando, for Appellant.
    John D. Goldsmith and Charlotte D. Gage of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Superior Protection, Inc., appeals a judgment awarding Alberto Martinez compensatory and punitive damages totaling $318,853.03 based upon claims of gender discrimination and retaliatory conduct. See 42 U.S.C. § 2000e-2(m), -3. We affirm the judgment without further comment but write to explain our disposition of Mr. Martinez’s motion for appellate attorneys’ fees and costs.

Shortly after the judgment was entered, Mr. Martinez filed a motion for attorneys’ fees in the circuit court. See 42 U.S.C. § 2000e-5(k) (“In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee (including expert fees) as part of the costs.... ”). It appears that the circuit court denied this motion because it was untimely pursuant to Florida Rule of Civil Procedure 1.525. Mr. Martinez has not appealed the order denying his motion for attorneys’ fees. However, he has filed a motion pursuant to 42 U.S.C. § 2000e-5(k) seeking the attorneys’ fees he has incurred in this appeal.

Superior Protection asserts that Mr. Martinez’s motion for appellate attorneys’ fees should be denied because his motion for attorneys’ fees before the circuit court was untimely. We disagree.

Rule 1.525 is a procedural rule, applicable to civil proceedings in the circuit and county courts. See Fla. R. Civ. P. 1.010. In appellate proceedings, the timeliness of a motion for attorneys’ fees is governed by Florida Rule of Appellate Procedure 9.400(b), which requires that the motion “be served not later than the time for service of the reply brief.” Mr. Martinez’s motion for appellate attorneys’ fees was timely. Under these circumstances, an order granting attorneys’ fees in the circuit court is not a condition precedent to obtaining an award of appellate attorneys’ fees. As the prevailing party in this appeal and in this lawsuit, Mr. Martinez is entitled to his attorneys’ fees on appeal pursuant to 42 U.S.C. § 2000e-5(k). We remand the motion to the circuit court to determine the reasonable amount of attorneys’ fees Mr. Martinez incurred in this appeal.

Mr. Martinez also filed a motion for costs on appeal in conjunction with his motion for appellate attorneys’ fees. This is a common procedural error in this court. Florida Rule of Appellate Procedure 9.400 discusses both costs and attorneys’ fees. A motion for attorneys’ fees is filed in the appellate court pursuant to rule 9.400(b). “Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” Fla. R.App. P. 9.400(a). Thus, the motion for appellate costs cannot be filed in the district court but must be filed in the lower tribunal after jurisdiction has been returned to that body by our mandate. See Vella v. Vella, 691 So.2d 612 (Fla. 4th DCA 1997). Accordingly, we strike the motion for costs on appeal without prejudice to Mr. Martinez’s right to file a timely motion pursuant to rule 9.400(a) in the circuit court.

Affirmed.

WHATLEY and CASANUEVA, JJ., Concur.


author: SALCINES, Judge.

text:
    Jose N. VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2364.
    District Court of Appeal of Florida, Second District.
    June 21, 2006.

      James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Jose N. Vazquez appeals from an amended sentence and order modifying his probation. We dismiss this appeal because Vazquez raises an issue which is rendered moot by the fact that he has served his sentence in its entirety and is no longer on probation. See Williams v. State, 549 So.2d 734 (Fla. 2d DCA 1989).

In order to prevent confusion in any future proceedings, however, we note that the amended sentence contains a scrivener’s error. In sentencing Vazquez, the trial court withheld adjudication. The amended sentence incorrectly reflects that Vazquez was “adjudged guilty.”

Dismissed as moot.

NORTHCUTT and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    ROYAL PROFESSIONAL BUILDERS, INC., a Florida corporation, Appellant, v. Stephen J. PUZZO, Appellee.
    No. 4D05-3924.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Robert D. Jones of Fuchs and Jones, P.A., Royal Palm Beach, for appellant.
    Jane L. Cornett of Cornett, Googe & Associates, P.A., Stuart, for appellee.
   PER CURIAM.

Affirmed. See Iglehart v. Phillips, 383 So .2d 610 (Fla.1980).

GUNTHER, HAZOURI and MAY, JJ., concur.


text:
    Travis SANGSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4974.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005).

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Leroy GOODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2067.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Carlos F. Gonzal'ez of Arnstein & Lehr LLP, Miami, and Catherine Areabascio, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Leroy Goodwin appeals the summary denial of his motion for post-conviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for the trial court to entertain Goodwin’s motion on its merits, as we find the motion legally sufficient. Hitchcock v. State, 866 So.2d 23 (Fla.2004); Caymitte v. State, 868 So.2d 681 (Fla. 4th DCA 2004).

Reversed and Remanded.

KLEIN, SHAHOOD and GROSS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Patricia GOLKIEWICZ, Appellee.
    No. 4D05-2703.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state challenges the circuit court’s imposition of a downward departure sentence without providing written reasons or engaging in the proper analysis. We affirm the sentence because the state failed to preserve the issue in the trial court. Affirmed. See State v. Dort, 929 So.2d 1190 (Fla. 4th DCA 2006).

WARNER, GROSS and HAZOURI, JJ., concur.


author: SHAHOOD, J.

text:
    Eugene TARQUINIO, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D05-2754.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauder-dale, for appellee.
   SHAHOOD, J.

Appellant, Eugene Tarquinio, appeals the Final Order authorizing continued involuntary placement in a mental hospital. We hold that affirmance is warranted in this case because the state met its burden of proving by clear and convincing evidence that appellant meets the criteria for continued involuntary placement pursuant to section 394.467(1), Florida Statutes. Specifically, the state has shown that appellant is incapable of surviving alone and is likely to neglect himself, and this poses a threat of substantial harm to his well-being.

Affirmed.

STEVENSON, C.J., and MAY, J., concur.


author: KELLY, Judge.

text:
    John CROSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5446.
    District Court of Appeal of Florida, Second District.
    June 23, 2006.
   KELLY, Judge.

John Cross challenges the postconviction court’s dismissal of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The post-conviction court determined that it lacked jurisdiction because Cross had an appeal pending in this court when he filed the rule 3.850 motion. We reverse because the trial court did have jurisdiction to entertain Cross’s motion.

Cross’s judgments and sentences became final in 2000. Since then he has filed numerous unsuccessful postconviction motions with one exception. Cross filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) which the trial court granted in part, and it then resen-tenced Cross. The appeal from the resen-tencing was pending in this court when Cross filed his rule 3.850 motion challenging his convictions based on newly discovered evidence. The trial court concluded that Cross’s appeal of his new sentences divested it of jurisdiction over his rule 3.850 motion.

“[A] trial court is divested of jurisdiction upon notice of an appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.” Palma Sola Harbour Condo., Inc. v. Huber, 374 So.2d 1135, 1138 (Fla. 2d DCA 1979) (emphasis added). In accordance with this general rule, this court has held that “[a]n appeal of a postconviction relief matter will not deprive trial courts of jurisdiction so long as the issues raised in the two cases are unrelated.” Jones v. State, 787 So.2d 35, 36 (Fla. 2d DCA 2001); see also Hartley v. State, 927 So.2d 1030 (Fla. 2d DCA 2006); Ottesen v. State, 844 So.2d 753 (Fla. 2d DCA 2003); Ali v. State, 732 So.2d 481 (Fla. 2d DCA 1999). On the other hand, we have recognized that trial courts lack jurisdiction to consider the merits of a defendant’s rule 3.850 motion while the direct appeal of the defendant’s judgment and sentence is pending. See, e.g., Johnson v. State, 657 So.2d 11 (Fla. 2d DCA 1995).

Cross’s appeal did not pertain to his original judgments or sentences but to new sentences imposed as a result of a successful postconviction motion. Because this case involves an appeal from sentences imposed following a postconviction motion, we conclude that the trial court was not divested of jurisdiction as it would have been had the pending appeal been from the original sentences or from new sentences imposed on remand after a successful direct appeal. Compare Mitchell v. State, 846 So.2d 559 (Fla. 4th DCA 2003) (holding that an appeal from a new sentence imposed pursuant to a postconviction motion did not divest the trial court of jurisdiction to consider a pending rule 3.850 motion in the same case), with Snipes v. State, 843 So.2d 1043 (Fla. 2d DCA 2003) (noting that the trial court would not have had jurisdiction to consider the merits of a rule 3.850 motion filed during the pendency of an appeal from a sentence that the trial court had imposed on remand from a successful direct appeal of the original sentence). Because the claim Cross asserts in his rule 3.850 motion is unrelated to the issues he raises in the appeal from the new sentences, the trial court had jurisdiction to consider it. Accordingly, we reverse the postconviction court’s order of dismissal and remand for the court to consider Cross’s rule 3.850 motion provided it is facially sufficient.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ., Concur.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Clyde Dickerson FOUNTAIN, Appellee.
    No. 2D05-3022.
    District Court of Appeal of Florida, Second District.
    June 23, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Judge.

The State appeals the trial court’s order granting Clyde Dickerson Fountain a new trial. The trial court concluded that the prosecutor’s closing argument impermissi-bly commented on Mr. Fountain’s right to remain silent and his burden of proof. Because the improper comments did not constitute fundamental error, we reverse.

A jury convicted Mr. Fountain of two counts of lewd or lascivious molestation. In his motion for new trial, Mr. Fountain asserted, for the first time, that three statements the prosecutor made in closing argument denied him a fair trial. The trial court found that the combination of “apparently inadvertent” statements misled the jury by suggesting that Mr. Fountain had the burden of proof and by commenting improperly on his right to remain silent. The trial court set aside the jury verdict and ordered a new trial.

Mr. Fountain did not object contemporaneously to the prosecutor’s comments. He did not request a curative instruction, nor did he move for a mistrial. Under such circumstances, the trial judge should have granted a new trial only if the unpreserved error was fundamental. See State v. Mathis, 933 So.2d 29, 32, 2006 WL 1235920 (Fla. 2d DCA May 10, 2006). The trial court made no such finding.

Five witnesses testified for the State at trial. Three testified about the initial report of the offenses and Mr. Fountain’s arrest. The other two witnesses were the victims, Mr. Fountain’s young stepdaughters. They testified, in detail, about the charged offenses.

Mr. Fountain’s defense theme was that the children concocted their stories more than two years after the alleged offenses occurred with the coaching of their mother, a woman who was angry, bitter, and dissatisfied with her marriage to Mr. Fountain.

The trial court properly instructed the jury that (1) Mr. Fountain enjoyed a presumption of innocence, (2) he was not required to present evidence or prove anything, (3) he did not have to prove his innocence, and (4) no juror should be concerned that Mr. Fountain did not testify.

The State correctly argues that the prosecutor’s statements in closing argument did not rise to the level of fundamental error. “The test for determining fundamental error is whether the error ‘goes to the foundation of the case or goes to the merits of the cause of action.’ Specifically, prosecutorial misconduct constitutes fundamental error when, but for the misconduct, the jury could not have reached the verdict it did.” Miller v. State, 782 So.2d 426, 432 (Fla. 2d DCA 2001) (quoting Ashford v. State, 274 So.2d 517, 518 (Fla.1973)); Mathis, 933 So.2d at 32.

In Mathis, we concluded that it could not be said that the jury would have returned a defense verdict absent the prosecutor’s misstatements in closing arguments. Id. The error was not preserved and was not fundamental. Therefore, we reversed the order granting a new trial. Id.

The same is true in Mr. Fountain’s case. We cannot say that absent the prosecutor’s misstatements, the jury would have found him not guilty. Although the prosecutor’s statements were improper, the unpre-served error was not fundamental. Id.; see also State v. Delafuente, 487 So.2d 1083, 1085 (Fla. 4th DCA 1986) (absent fundamental error, new trial should have been denied where no objection made to improper argument on defendant’s failure to call witnesses).

Reversed.

WALLACE, J., and THREAJDGILL, EDWARD F., Senior Judge, Concur.

      . The prosecutor’s challenged statements were as follows: (1) "The evidence is uncon-troverted, uncontradicted that this is what happened ... (2) "No testimony at all .... [to support defense theory]”; and (3) "[T]he testimony from the girls was really unim-peached. It was uncontradicted. Other than the theory of it didn't happen, there's been no testimony to support a theory that [it] didn't happen.” Mr. Fountain’s trial counsel stressed in his final closing that Mr. Fountain did not have to present contradictory evidence, that the burden was on the State to prove the offenses, and that the victims' testimony was not credible.


author: CASANUEVA, Judge.

text:
    Madonna Sue Jervis WISE, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 2D05-4490.
    District Court of Appeal of Florida, Second District.
    June 23, 2006.

      Madonna Sue Jervis Wise, pro se.
    Thomas E. Wright, Senior Attorney, Department of Management Services, Tallahassee, for Appellee.
   CASANUEVA, Judge.

Madonna Sue Jervis Wise, a retired public school teacher, appeals from a denial of service credit by the Department of Management Services, Division of Retirement, that reversed an administrative law judge’s grant of the credit. We reverse.

Mrs. Wise was an employee of Florida’s public school system for over thirty years, during which she served variously as a classroom teacher, county-level administrator, grant writer, and school principal. She planned to retire at the end of the 2003-04 school year. In August 2001, she interviewed and was hired for a position at what is presently known as the Florida Virtual School [FVS], a public entity that offers online courses to Florida students attending grades seven through twelve. She began working part-time at FVS on September 15, 2001, while continuing her full-time duties with the Pasco County public school system. During the 2001 school year, her position with FVS was designated as “adjunct” in all relevant documents. While employed part-time with FVS, she undertook numerous additional work assignments including preparing federal grant requests to obtain increased funding for the school and working on online course development. Also, she served on the committee that produced the first FVS employee handbook titled “Policies and Procedures Manual” [the “manual”]. Recognizing a valuable asset, FVS offered her a full-time position for the 2002-03 school year, which she accepted; she also maintained part-time employment with the Pasco system. This arrangement continued through the 2003-04 school year until her retirement.

In April 2004, shortly before her scheduled June 2004 retirement, the Division informed Mrs. Wise that her earnings for the period beginning September 15, 2001, and ending on June 30, 2002 (the “contested period”), would not be included as part of her average final compensation. This decision meant that her retirement benefits would be smaller than she expected. The Division’s decision was based upon its conclusion that Mrs. Wise’s employment in the contested period was classified as “temporary employment,” rendering it not qualified for earning retirement credit because the FVS position was not a “regularly established position.” Mrs. Wise disputed the Division’s decision and, upon being denied the credit after review, appealed the denial to the Department of Administrative Hearings. The administrative law judge [ALJ] held an evidentiary-hearing at which three witnesses testified: Mrs. Wise for herself; and, on behalf of the Division, Linda Peters, who was the director of Human Resources for FVS since November 2004, and Cathy Smith, the chief of the Division’s Bureau of Enrollment Contributions. At the hearing, it was undisputed that FVS did not begin to participate in the Florida Retirement System until December 1, 2001, during the contested period.

The ALJ found that Mrs. Wise was employed during the contested period in a retirement credit-earning position, not a temporary one, and was thus entitled to have her earnings during the contested period included in her average final compensation, starting from December 1, 2001. The ALJ’s recommended order states in relevant part:

33. The letter of intent form [used by FVS employees to indicate whether they wished to continue their employment with FVS] requested [Mrs. Wise] to indicate whether she intended to continue her “adjunct employment status” and whether she would be interested in “a full-time position.” The form did not refer to either a “temporary position,” or a “part-time position.” [Mrs. Wise] reasonably inferred that “adjunct employment status” was the part-time alternative to “a full-time position.” The inference was consistent with the announced purpose for serving in FVS and the evidence as a whole. [The Division] also does not define part-time employment to exclude a regularly established position.
40. There was nothing temporary in the expectations of [FVS] and [Mrs. Wise] during the contested period. [FVS] staff had legitimate business reasons to expect continued student enrollment and legislative funding during the contested period. [FVS] also had legitimate reasons to expect continued employment of [Mrs. Wise] based on the individual experience [FVS] enjoyed with [Mrs. Wise], the ongoing and continuous nature of [Mrs. Wise’s] work, and the significant additional duties assigned to [Mrs. Wise]. [FVS], in fact, employed [Mrs. Wise] continuously after the contested period.

The Division rejected the ALJ’s recommended order and denied Mrs. Wise service credit for the contested period, concluding that she was a temporary employee during this period. The Division’s final order rejected many of the ALJ’s findings based on the testimony of its two expert witnesses, Ms. Peters and Ms. Smith. The ALJ had determined, however, to give little weight to their testimony because they lacked adequate knowledge of the relevant facts. Specifically, the ALJ found that the Division did not call a witness from FVS who was competent to testify about events that occurred during the contested period. Ms. Peters, the FVS representative, testified that she started there after Mrs. Wise retired. Ms. Smith was employed by the Division and had no knowledge of Mrs. Wise’s employment status at FVS during the contested period. This record indicates that Ms. Smith was essentially looking at the contested period from the perspective in 2004, when the school was more firmly established in its practices and procedures, rather than from the perspective of conditions in 2001, when Mrs. Wise began her tenure at FVS. We conclude that the Division’s reasons for rejecting the ALJ’s dispositive findings are not supportable.

The Division did highlight some of the ALJ’s factual findings that the record evidence did not support, but we find these few shortcomings not material. For example, the ALJ found that Mrs. Wise was in a regularly established position partly because she was assigned numerous extra duties, such as grant writing and helping to develop the manual, which was inconsistent with being a temporary employee. The Division correctly pointed out that there was no testimony that she was required, to assume these extra duties, rather than having merely volunteered. The ALJ also found as fact that Ms. Wise disclosed to her supervisor at FVS at the time of her employment that she sought employment at FVS to enhance her retirement benefits. The Division properly noted that the hearing transcript does not reflect that this fact was communicated to her supervisor during her interview for the position; rather, this was her subjective intent. Had she mentioned it at the interview, she would have been told that FVS was not then participating in the Florida Retirement System. The ALJ also found that FVS was a state agency, rather than a local agency, such as a county school system. The Division took issue with this finding based primarily on the testimony of Ms. Smith. Although it remains debatable whether FVS is a local or state agency, each of which defines criteria for determining whether an employee is in a temporary position, this is not the determinative issue. Under either set of criteria, Mrs. Wise cannot be considered a temporary employee during the contested period. For purposes of this opinion, we will consider FVS a local agency. As illustrated by the quotation from the recommended order, the impetus behind the ALJ’s decision was the fact that the totality of the circumstances showed that she was in a regularly established position, albeit part-time, that entitled her to retirement credit for the contested period.

An appellate court generally defers to the administrative agency because of its greater knowledge and experience in interpreting the law related to it. We must accept the ALJ’s findings regarding factual disputes, the weight of the evidence presented, and the credibility of the witnesses. § 120.68(10); Doyle v. Fla. Unemployment Appeals Comm’n, 635 So.2d 1028 (Fla. 2d DCA 1994); Pasco County Sch. Bd. v. Fla. Pub. Employees Relations Comm’n, 353 So.2d 108 (Fla. 1st DCA 1977). However, if the agency’s decision is not supported by substantial, competent evidence established in the record of the administrative hearing, it will be overturned. § 120.68(7) Fla. Stat. (2005). But an appellate court reviews the agency’s conclusions of law de novo. Steward v. Dep’t of Children & Families, 865 So.2d 528 (Fla. 1st DCA 2003).

Section 120.57(1)(Z), Florida Statutes (2005), part of the Administrative Procedure Act, somewhat circumscribes the authority of the Division in reviewing an administrative law judge’s determination:

(l) The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or .interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.

See also Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001). Because the ALJ’s determinative factual findings are supported by the record and the Division’s substituted conclusions of law and interpretation of administrative rule are not “more reasonable than that which was rejected or modified,” we reverse the final order under review.

We examine first the ALJ’s dispos-itive factual findings, i.e., that Mrs. Wise was in regularly established position, not a temporary position. Paragraphs twenty-nine and thirty of the ALJ’s recommended order state the following:

29. [The Division] asserts that the documents satisfy requirements for notice and documentation of a temporary position in Florida Administrative Code Rule 6.1004(5). The rule requires an employer to notify an employee at the time of employment that the employee is filling a temporary position and cannot participate in the FRS [Florida Retirement System]; and to document the intended length of the temporary position. However, the terms of the documents from [the Division] are ambiguous and insufficient to provide the required notice and documentation.
30. The documents did not expressly notify [Mrs. Wise] she was filling a temporary position that did not qualify as a regularly established position in the FRS. None of the documents use the term “temporary” or “temporary position.” The notice and documentation requirements of the rule must be satisfied, if at all, by implication from terms on the face of the documents such as “adjunct,” “adjunct position,” and “adjunct employment status.”

The Division’s final order rejected these findings as irrelevant. The Division cited (a) the undisputed evidence that FVS was not participating in the Florida Retirement System in ■ September 2001 when Mrs. Wise was hired and (b) the manual, which states that adjunct teachers were considered temporary and do not receive benefits. We do not dispute that the manual defines “adjunct” as “temporary” or that FVS was not a participating employer in September 2001. However, the Division’s position begs the question. “Adjunct” was not clearly equated with “non-retirement credit earning” and “temporary” until many months after Mrs. Wise was hired. The ALJ’s determination is supported by the record: the relevant employment documents at the time that Mrs. Wise was hired did not alert her to the fact that she would be considered a temporary employee. Furthermore, the administrative rule amply supports the ALJ’s conclusion.

Florida Administrative Code Rule 60S-1.004(4)(b) defines a regularly established position in a local agency, such as a district school board, and states that “[a] local agency, when establishing an employment position, except for positions identified in ... paragraph 60S — 1.004(5)(d), F.A.C., should determine if the position will exist beyond 6 consecutive calendar months. If it will, then it is a regularly established position. If it will not, then it is a temporary position.” Because the undisputed facts show that Mrs. Wise was hired for the complete school year, she must be deemed to have been hired into a “regularly established position,” albeit a part-time one. Moreover, as the ALJ pointed out in his conclusions of law, the Division “cannot exercise agency discretion in a manner that is inconsistent with its own rule that requires the employer to provide adequate notice and documentation that [the employee is filling] a temporary position.” We agree with the ALJ’s legal analysis and conclusion.

The ALJ also concluded that the issue of whether Mrs. Wise’s position in the contested period was temporary was a factual determination and not one infused with agency expertise. In reaching this conclusion, the ALJ cited the analogous cases of And Justice For All, Inc. v. Florida Department of Insurance, 799 So.2d 1076, 1078 (Fla. 1st DCA 2001); Board of Trustees of the Northwest Florida Community Hospital v. Department of Management Services, Division of Retirement, 651 So.2d 170, 173 (Fla. 1st DCA 1995); and Schoettle v. State, Department of Administration, Division of Retirement, 513 So.2d 1299 (Fla. 1st DCA 1987). The Division rejected the ALJ’s conclusion and determined to the contrary that temporary employment status is an issue infused with agency expertise, without providing an analysis to support its determination. The Division merely relied on the allegedly un-rebutted expert testimony claiming that Mrs. Wise was filling a temporary position during the contested period. However, the ALJ rejected this expert testimony because these witnesses had inadequate knowledge of the facts at issue. Based upon the record and the cases cited by the ALJ, we agree with the ALJ and reject the Division’s conclusion of law.

The Division also overturned the ALJ’s legal conclusion that the Division is equitably estopped to deny the credit to Mrs. Wise based on (1) the omission of adequate notice to her that her position during the contested period would be temporary and (2) the lack of documentation of her temporary status in violation of the administrative rule. Although these omissions may have been mistakes, the ALJ found that they constituted a tacit representation that Mrs. Wise was being hired into a regularly established position during the contested period and was contrary to the Division’s asserted position at the hearing. The ALJ cited Warren v. Department of Administration, 554 So.2d 568, 570 (Fla. 5th DCA 1989); Kuge v. State, Department of Administration, Division of Retirement, 449 So.2d 389, 391 (Fla. 3d DCA 1984); and Salz v. Department of Administration, Division of Retirement, 432 So.2d 1376, 1378 (Fla. 3d DCA 1983), in support of this legal conclusion.

The Division rejected the ALJ’s equitable estoppel theory on the ground that the record did not show any misrepresentation by the Division and cited numerous eases. Because the ALJ did not find that the Division misrepresented anything, we find the Division’s position inapposite and the ALJ’s cited cases analogous to Mrs. Wise’s circumstances and supportive of his conclusion. Although equitable estoppel will only be applied against a state agency in exceptional circumstances, N. Am. Co. v. Green, 120 So.2d 603 (Fla.1959); Salz, 432 So.2d at 1378, we find that Mrs. Wise’s circumstances qualify.

The final administrative order denying retirement credit to Mrs. Wise during the contested period is reversed and the case remanded with instructions that the Division adopt the ALJ’s recommended order that Mrs. Wise receive credit for her service during the contested period starting from December 1, 2001. This will require recalculation of Mrs. Wise’s average final compensation after including her earnings at FVS during the contested period and readjustment of her pension benefits accordingly. Mrs. Wise shall also be entitled to receive any resulting arrearage from the date she began receiving her pension from the Florida Retirement System.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

      . The ALJ determined the credit should be given starting on this date rather than on the starting date of the contested period, based on his finding that he could not go back farther dían the actual date that FVS joined the Florida Retirement System. Mrs. Wise does not contest this finding.

      . For example, the manual, approved by the school’s Board of Trustees in January 2002, defines "Adjuncts” as independent contractors who are not employees and who do not qualify for employee benefits. "Regular Part-time Employees” are defined as
      those who work less than the full-time work schedule (40 hours per week). Regular Part-time employees are compensated on a fee for service or hourly wage basis and are ineligible for any benefits offered full-time employees; however, they do receive all legally mandated benefits (such as Social Security and Workers’ Compensation insurance).
      Part-time employees of the public school system are entitled to retirement credit. See Fla. Admin. Code R. 60S-1.004(1) ("Membership in the Florida Retirement System shall be compulsory if the employee is filling a full-time or part-time regularly established position.”).
      At the hearing before the ALJ, Mrs. Wise noted that when she was hired by FVS, the people running the organization were not experienced human resource personnel and may not have had enough familiarity with such issues as retirement benefits to avoid the problem she encountered. We concur in her assessment of the situation.

      . The exception mentioned in paragraph 60S-1.004(5)(d) relevant to this discussion deals with "temporary instructional positions,” which sub-subparagraph (3) defines as "positions which are established with no expectation of continuation beyond one semester or one trimester at a time, to teach in a community college, public school, or vocation institution. ...” The record shows that Mrs. Wise was hired to teach for a full school year, so she falls outside this exception.


text:
    Mary Jo OWENS and Monica Clement, Appellants, v. ESTATE OF Ralph E. DAVIS, by and through its Personal Representative, Karen HOLZAUSER and Jonathan Stidham, as the Guardian Ad Litem for the Minor Children of the Testator, Appellees.
    Nos. 2D05-557, 2D05-560.
    District Court of Appeal of Florida, Second District.
    June 23, 2006.

      James F. Keedy, Barry P. Burnette, and Kris A. Vanderlaan, Tavares, for Appellants.
    J. Davis Connor of Peterson & Myers, P.A., Winter Haven, for Appellee Karen Holzauser.
    Jonathan Stidham, Bartow, for Appellee Guardian Ad Litem.
   KELLY, Judge.

In these consolidated appeals, Mary Jo Owens and Monica Clement, the adopted children of Ralph E. Davis, appeal from an order entered on cross-petitions to determine the beneficiaries of their father’s estate. On appeal, they argue that the trial court improperly considered extrinsic evidence in interpreting Mr. Davis’s will. We agree.

A testator’s intent as expressed in his will controls the legal effect of his dispositions. In re Estate of Budny, 815 So.2d 781, 782 (Fla. 2d DCA 2002); see also § 732.6005(1), Fla. Stat. (2003). When a will is clear and unambiguous on its face, extrinsic evidence of the testator’s intent is inadmissible. In re Estate of Benson, 548 So.2d 775, 777 (Fla. 2d DCA 1989); Dutcher v. Estate of Dutcher, 437 So.2d 788, 789 (Fla. 2d DCA 1983). The terms of Mr. Davis’s will are clear and unambiguous; however, the will does not specify how the probate court should distribute Mr. Davis’s residuary estate if his wife claims her elective share. When Mr. Davis’s wife claimed her elective share, rather than let the residuary estate pass according to the law of intestate succession, the probate court considered extrinsic evidence to determine how to distribute those assets. The trial court’s consideration of extrinsic evidence to “rewrite” the will was error:

The court may not alter or reconstruct a will according to its notion of what the testator would or should have done.... It is not the purpose of the court to make a will or to attempt to improve on one that the testator has made. Nor may the court produce a distribution that it may think equal or more equitable.

In re Estate of Barker, 448 So.2d 28, 31-32 (Fla. 1st DCA 1984) (quoting 18 Fla. Jur.2d Decedent’s Property § 358, at 216). Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.


text:
    In re Joel G. PORTER.
    No. 2005-B-1736.
    Supreme Court of Louisiana.
    March 10, 2006.
    Rehearing Denied June 23, 2006.

      Charles B. Plattsmier, Baton Rouge, Shana Marice Broussard, for applicant.
    Clary <& Overton, James R. Clary, Jr., Baton Rouge, Thomas Law Firm, Richard S. Thomas, Joel G. Porter, for respondent.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joel G. Porter, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Count I — The Winnfield Cemetery Matter

In February 1994, Mamie Burden Williams and five others retained respondent to represent them in a suit against the Winnfield Funeral Home Cemetery (“Winnfield”). Respondent agreed to pursue the matter on a contingent fee basis plus an additional charge of $250 per person for costs, which the parties paid.

In April 1994, respondent filed a lawsuit against Winnfield and its insurer on behalf of his six clients. In June 1995, respondent amended the petition to add twenty additional plaintiffs. Thereafter, respondent had no further contact with his clients.

In March 1996, Christopher Whitting-ton, an attorney with whom respondent shared an office in Baton Rouge, enrolled as co-counsel in the Winnfield case. At the same time, Mr. Whittington filed a motion for preliminary default, which was granted on March 20, 1996. Sometime thereafter, respondent and Mr. Whitting-ton severed |atheir professional relationship and respondent opened a law office at the Weller Avenue Baptist Church in Baton Rouge, where he was a minister. In June 1998, Mr. Whittington filed a motion to withdraw as co-counsel, which was granted.

In October 1998, attorney David Lefeve filed an answer to the plaintiffs’ petition on behalf of the defendants. In February 1999, Mr. Lefeve sent a discovery request to the plaintiffs via certified mail addressed to respondent’s post office box, which was properly delivered. Respondent did not produce the requested information. Mr. Lefeve then filed a motion to compel, but respondent did not appear at the hearing on the motion in October 1999. In November 1999, the trial court ordered respondent to respond to the discovery request. Respondent did not comply with the order. As such, in February 2000, Mr. Lefeve filed a motion to dismiss. Respondent did not appear at the hearing on the motion to dismiss, and a judgment dismissing the plaintiffs’ ease without prejudice was rendered in March 2000.

In October 2000, Ms. Williams learned of the dismissal of the suit and filed a complaint against respondent with the ODC.

Count II — The West Matter

In February 1997, respondent filed a defamation suit against Yolanda Hill on behalf of his clients, Charles and Patricia West. An affidavit was attached to the petition, purportedly signed in respondent’s presence by Mr. and Mrs. West, attesting that the factual allegations contained in the petition were true. The affidavit was notarized by respondent. However, Mrs. West did not sign the verification in respondent’s presence. Instead, respondent witnessed Mr. West sign the verification with his wife’s signature. The improperly notarized verification was filed into the court record and served upon the defendant, Ms. Hill, who subsequently filed a complaint against respondent with the ODC.

| ¡.DISCIPLINARY PROCEEDINGS

The ODC filed two counts of formal charges alleging that respondent’s conduct violated the following Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 3.3(a) (candor toward the tribunal), 4.1(a) (knowingly making a false statement of material fact or law to a third person), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent answered the formal charges, denying any misconduct on his part. In Count I, respondent contended that the motion to compel was improperly served because the service address was that of the church where he was a minister. He denied ever receiving this service. Respondent also asserted that he had no notice of Mr. Whittington’s motion to withdraw, which did not include a certificate of service. Furthermore, Mr. Whittington had possession of the file because he would not allow respondent to take the file when respondent vacated Mr. Whittington’s office in 1996. Respondent asserted that he attempted to contact Mr. Whittington regarding the case but was unsuccessful. As an affirmative defense, respondent claimed he reasonably relied upon Mr. Whittington to handle the case.

As to Count II, respondent admitted the notarial act was improper; however, he claimed the verification was not “legally material” to the suit and contained no material facts. Respondent also pointed out that Mr. West signed his wife’s signature with her permission. Respondent nevertheless acknowledged the profession could be harmed by such a practice and asserted that same would not occur in the future.

14Hearing Committee Recommendation

This matter proceeded to a formal hearing on the merits, at which respondent and others testified. Following the hearing, the hearing committee determined that respondent’s testimony in regard to Count I was not credible. Specifically, the committee stated, “[respondent’s testimony that he left everything in the hands of Mr. Whittington even after he removed himself from Mr. Whittington’s office building does not ring true.” Based on its evaluation of the testimony and documentary evidence, the committee made the following findings of fact regarding Count I:

1. In February 1994, Ms. Williams, Lionel Courtney, and others retained respondent to represent them in a civil suit for damages against Winnfield Funeral Home regarding the displacement of headstones on family burial sites.

2. Respondent agreed to represent them, and each person was instructed to bring a retainer of $250 to cover the costs, for a total of $1,350. Mr. Courtney paid $1,000 of this amount for himself and for others.

3. On April 23, 1994, respondent filed a petition for damages on behalf of the plaintiffs, and on June 5, 1995, he filed an amending petition adding an additional twenty plaintiffs to the suit.

4. On March 15, 1996, attorney Christopher Whittington filed a motion to enroll as co-counsel.

5. On June 8, 1998, Christopher Whit-tington filed a motion to withdraw and did, in fact, withdraw from the case.

6. During this time, respondent did not communicate with the plaintiffs, did not provide them with a copy of their legal pleadings, and did not actively pursue their case in any way.

7. On October 29, 1998, David Lefeve answered on behalf of the defendant.

|58. On January 15, 1999, Mr. Lefeve attempted to correspond with respondent at Mr. Whittington’s law office in Baton Rouge, which letter was returned.

9. On February 17, 1999, interrogatories were forwarded to respondent by certified mail at his new law office at the Weller Avenue Baptist Church, which was received by respondent on February 26, 1999. Respondent failed to respond to the requests for information.

10. On March 25, 1999 and April 20, 1999, Mr. Lefeve wrote to respondent at the Weller Avenue Baptist Church address (both the post office box and the street address). Respondent still refused to respond to any inquiries from the defendant’s attorney.

11. On June 14, 1999, a motion to, compel was filed and mailed to respondent at the street address of the Weller Avenue Baptist Church.

12. Respondent failed to attend the hearing scheduled for October 25, 1999.

13. On November 4, 1999, the court ordered respondent to respond to the discovery requests, but respondent refused.

14.The plaintiffs’ suit was eventually dismissed on March 20, 2000.

Based on these factual findings, the committee determined that respondent failed to keep his clients advised of the status of their case and completely neglected their case, resulting in the loss of the retainer as well as the dismissal of the case. After respondent left Mr. Whitting-ton’s office, he received several legal documents, letters, and phone calls at his new law office, which he basically ignored. He failed to notify his clients of his new address or that he was no longer in association with Mr. Whittington. Respondent completely abandoned his clients, which ultimately led to the dismissal of their case.

Relying on this court’s prior jurisprudence and the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction for |fithe misconduct in Count I is suspension. The committee found the following aggravating factors: a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law (admitted 1992), and indifference to making restitution. In mitigation, the committee found the absence of a prior disciplinary record and remorse.

For his misconduct in Count I, the committee recommended that respondent be suspended from the practice of law for one year and one day. The committee also recommended that respondent be required to make restitution to his clients.

The committee made the following findings of fact as to Count II:

1. On February 28, 1997, respondent filed a defamation suit on behalf of Charles and Patricia West in Baton Rouge City Court.

2. Attached to the petition was a verification of petition purported to have been signed by Patricia West in respondent’s presence and notarized by him.

3. Patricia West did not appear before respondent on the date the verification was signed. Instead, respondent allowed Mrs. West’s husband, Charles West, to sign the verification.

4. Respondent knew the verification was improper at the time it was signed.

5. Mr. West had Mrs. West’s permission to sign the verification on her behalf.

The committee determined the baseline sanction for the misconduct in Count II is a reprimand. Accordingly, the committee recommended that respondent be publicly reprimanded for his misconduct in Count II.

Both respondent and the ODC filed objections to the hearing committee’s recommendation.

1 tDisciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s findings of fact are generally supported by the record and are not manifestly erroneous. In particular, the board determined there is ample evidence in the record to show that respondent received several letters and motions at the Weller Avenue Baptist Church address, though some of the correspondence is not in the record. The board was uncertain how the committee calculated the total retainer amount of $1,350, although the committee correctly found that each of the six original clients in Count I were instructed to pay a retainer of $250 and that Mr. Courtney paid $1,000 for himself and others. In all other respects, the board found support in the record for the committee’s factual findings and adopted same.

The board found that respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct in regard to Count I. As to Count II, the board found that respondent violated Rules 3.3(a), 4.1(a), 8.4(a), 8.4(c), and 8.4(d).

In violating the above Rules of Professional Conduct, the board determined that respondent violated duties owed to his clients, the public, and the legal system. He acted knowingly, causing harm to his clients in Count I and to the “public record” and the profession in Count II.

In Count I, the board found that respondent did nothing after filing the petition and amended petition. He did not provide his clients with information or copies of any pleadings. He did not take action even after receiving pleadings and letters from defense counsel. Furthermore, although he claimed Mr. Whittington was handling the matter, respondent failed to file a motion to withdraw and did not notify his clients that he would no longer be representing them. He tried to blame Mr. Whittington by suggesting he did not receive notice of Mr. Whittington’s withdrawal; however, respondent “seems oblivious to the fact that he abandoned his clients |swithout any notice to them whatsoever.” He failed to follow the rules regarding notification designed to protect his clients and upon which they were entitled to rely. Finally, respondent argued that his clients were not harmed because their suit was dismissed without prejudice. However, respondent was first retained in 1994. To date, his clients have no information regarding the status of their case, and it remains unresolved.

In Count II, the board found that respondent admitted he notarized the verification. However, he argued that the verification was immaterial. Nonetheless, the lack of candor in his actions caused harm.

The board determined the baseline sanction for respondent’s misconduct is suspension under the ABA’s Standards for Imposing Lawyer Sanctions. The board adopted the aggravating and mitigating factors found by the committee and added the aggravating factor of multiple offenses.

Considering these findings and this court’s prior jurisprudence, the board recommended that respondent be suspended from the practice of law for eighteen months. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

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 applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record reveals that in Count I, respondent neglected his clients’ legal matter and failed to communicate with them. He moved out of Mr. Whittington’s office and relocated to a church, where he maintained a small law practice but primarily considered himself a minister. Nevertheless, respondent did not properly withdraw from the Winnfield cemetery case or take steps to notify his clients that he would no longer be handling their legal matter. In Count II, respondent admitted that he improperly notarized a pleading that he later filed into the court record.

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).

In acting as he did, respondent violated the Rules of Professional Conduct as alleged in the formal charges. He violated duties owed to his clients, the legal system, and the profession. He acted knowingly, causing actual harm to his clients and potential harm to the legal system. The baseline sanction is a period of suspension.

I mThe aggravating factors present are multiple offenses and vulnerability of the victims. In mitigation, we recognize that respondent has no prior disciplinary record and was relatively inexperienced in the practice of law at the time of the misconduct at issue here. He has also expressed remorse for his conduct and has pledged to avoid similar problems in the future.

Under these circumstances, we conclude the appropriate sanction for respondent’s misconduct is a one-year suspension from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Joel Gerard Porter, Louisiana Bar Roll number 21825, be suspended from the practice of law for one year. 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.

      . Ms. Williams and the other plaintiffs claimed that Winnfield removed all the headstones in the cemetery to perform work on the land to correct drainage problems. When the cemetery replaced the headstones following the work, it put them back on the wrong graves.

      . Following the issuance of the hearing committee’s report, respondent paid $1,350 in restitution to the plaintiffs in the Winnfield cemetery matter.