author: PER CURIAM. LEWIS, C.J., BELL, J.,

text:
    FLORIDA BOARD OF BAR EXAMINERS re Mark Stephen BARNETT.
    No. SC06-1958.
    Supreme Court of Florida.
    June 14, 2007.
    Michele A. Gavagni, Executive Director, and Thomas A. Pobjecky, General Counsel, Florida Board of Bar Examiners, Tallahassee, FL, for Petitioner.
    John A. Weiss of Weiss and Etkin, Tallahassee, FL, for Respondent.
   PER CURIAM.

This case is before the Court on the Public Report and Recommendation of the Florida Board of Bar Examiners with respect to the application for admission to The Florida Bar of Mark Stephen Barnett. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we approve the Board’s Public Report and Recommendation and admit Barnett to The Florida Bar on a conditional basis. He is to remain on probation for a period of three years, during which time he will fully comply with the conditions recommended by the Board in its Public Report and Recommendation.

FACTUAL BACKGROUND

Barnett became a member of The Florida Bar in October 1988. In 1997, he filed an uncontested petition to resign in lieu of disciplinary proceedings, which the Court granted on August 21, 1997, effective, nunc pro tunc, April 29, 1997, the date of his emergency suspension.

On July 20, 2004, Barnett filed an Application for Admission to The Florida Bar with the Florida Board of Bar Examiners. He successfully completed the February 2004 General Bar Examination and the August 2004 Multistate Professional Responsibility Examination.

The Board conducted an investigation of Barnett’s background, including the circumstances surrounding his disciplinary resignation from the Bar in 1997, which revealed information reflecting adversely upon Barnett’s character and fitness under the provisions of rules 2-12, 3-10, 3-11, and 3-12 of the Rules of the Supreme Court Relating to Admissions to the Bar. The Board served Barnett with five separate specifications detailing incidents in his past that reflected negatively on his character and fitness to practice law. Barnett filed answers to the specifications. A public formal hearing on the specifications was convened in July 2006.

Specification 1 alleged that Barnett was admitted to the Bar in October 1988 and filed a petition for disciplinary resignation with the Court in June 1997, which the Court granted on August 21, 1997. At the time Barnett filed his petition for disciplinary resignation, he was under emergency suspension and had several Bar disciplinary cases pending against him. One of the Bar’s complaints in those cases alleged that Barnett had misappropriated client funds and failed to hold client funds in a separate trust account, in. violation of Rules Regulating the Florida Bar 4-1.15(a) (requiring a lawyer to hold in trust, separate from the lawyer’s own property, funds and property of clients or third persons that are in a lawyer’s possession in connection with a representation); 4-8.4(c) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation); and 5-l.l(a) (requiring a lawyer to hold in trust and to apply only to the client’s expressed purposes any money or other property entrusted to the attorney, including advances for costs and expenses).

Specification 1 also alleged that the referee, following a hearing on the Bar’s complaint, rejected Barnett’s explanation that the matter was a fee dispute between him and his client, found Barnett guilty of the rule violations charged, and recommended that the Court suspend Barnett for three years, concurrent with three years of probation during which time he should be required to submit to random drug testing and rehabilitation. The referee further recommended that the Court order Barnett to pay restitution of $13,007.60, to his client and to reimburse the Bar’s costs of $5,816.52. This pending case was dismissed after the Court granted Barnett’s petition for a disciplinary resignation.

Also pending against Barnett at the time of his resignation, and dismissed as a result of his resignation, was a ten-count complaint reflecting grievances filed against him with the Bar by ten different individuals. This complaint alleged violations of rules 3-4.8 (nine counts of failing to respond in writing to an investigative inquiry by Bar counsel); 4-1.3 (three counts of failing to diligently represent a client); 4-1.4 (five counts of failing to communicate with clients); 4-3.2 (two counts of failing to reasonably expedite litigation); 4-8.4(c) (three counts of engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(g) (ten counts of failing to respond in writing to an inquiry from a disciplinary agency).

In addition, Specification 1 alleged that Barnett agreed to represent clients in two separate cases after his emergency suspension began, which led the Bar to file a petition for an order to show cause and for contempt against him with the Court. The petition was dismissed after Barnett’s resignation.

Specification 2 alleged that Barnett, in November 1997, failed to stop at a law enforcement checkpoint because, at the time, he had been on a heroin binge for four days. When he finally stopped, Barnett was arrested and charged with driving under the influence, battery on a law enforcement officer, possession of cocaine, and resisting arrest with violence.

Although the charges were dropped, all but the battery on a law enforcement officer charge were refiled. The possession of cocaine charge was eventually nolle prossed. Barnett pled nolo contendere to resisting arrest with violence. The trial court withheld adjudication and placed Barnett on probation for eighteen months. The probation was terminated after twelve months. Barnett pled nolo contendere to driving under the influence and was adjudicated guilty. The trial court suspended his driver’s license for six months, ordered Barnett to pay $519.50 in fines, and ordered him to complete fifty hours of community service.

Specification 3 alleged Barnett failed to timely file his federal income tax returns for 1993,1994,1995,1998,1999, 2000, 2001, 2002, and 2003.

Specification 4 alleged that Barnett was sued by Ralph Itzhaki in March 1997 for $3,000 for money Itzhaki had loaned Barnett and that Barnett had never repaid. In December 1997, a final judgment was entered in favor of Itzhaki for $3,000, plus interest of $600, court costs of $129, and the filing fee of $25, for a total judgment of $3,754. The judgment remained unsatisfied.

Specification 5 alleged that Barnett was in an automobile accident in January 1996 that led to a suit by Geico in September 1999. In May 2000, a default judgment was entered against Barnett and in favor of Geico for $3,547.37 in principal, $1,535.72 in prejudgment interest, and costs of $213.50, for a total judgment of $5,296.59.

In October 2006, the Board filed its Public Report and Recommendation with the Court. The Board found that the allegations in Specifications 1, 2, and 3 had been proven and that the conduct was individually disqualifying. The Board further found that the allegations in Specifications 4 and 5 had been proven and that the conduct was collectively disqualifying.

Barnett testified concerning his battle with addictive substances that spanned over twenty years of his life and caused or contributed to his misconduct. Barnett told the Board that he became a daily marijuana smoker when attending Columbia University as an undergraduate. By the time he dropped out of college in May 1980, he was a regular user of cocaine. A short time later, in 1981, he began using heroin. Despite his heroin use, he returned to Columbia as an undergraduate in January 1982 and received his Bachelor of Arts degree in May 1983. When he entered law school in January 1985, he was a regular user of heroin. He was still a user when he graduated in December 1987 and was employed by the Attorney General’s Office. Shortly after his employment began, he became physically dependent and needed daily doses of heroin. His active addiction continued throughout his employment there, which lasted until 1993, when he left the Attorney General’s Office to open his own law practice.

Barnett’s drug abuse continued for some time after his disciplinary resignation, until he began attending Alcoholics Anonymous (AA) meetings. His sobriety date is December 20, 1997. He spent eight days in a detoxification program in Massachusetts and lived in a halfway house for approximately two and one half months after this date. He obtained employment as a paralegal and has been employed and abstinent of drugs and alcohol since then.

Barnett testified concerning his rehabilitation activities since his resignation from the Bar. These included: (1) daily prayer and meditation; (2) attending at least four AA meetings per week; (3) attending one Florida Lawyers Assistance, Inc. (FLA) meeting per week; (4) attending one meeting at the halfway house; (5) attending a weekly breakfast meeting on Sunday morning; (6) fulfilling speaking engagements at various clubs or treatment centers; (7) serving as an AA sponsor for four individuals with daily contact; (8) serving as the sponsor for well over a hundred individuals over the years; (9) serving on the board of the San Marco AA Club and for four halfway houses; (10) serving as an officer for both AA clubs and FLA groups; (11) going to temple every Friday; (12) attending adult education in his faith; (13) taking an active role in the temple brotherhood; (14) staying involved with Gateway, a support group to help members stay clean and sober while enjoying the live music scene; (15) serving at over seventy concerts in the last five years with Gateway; (16) complying with all of the reporting requirements under the Bar rules for former attorneys working as law clerks; (17) reimbursing the Client Security Fund for approximately $20,000 the fund paid to his former clients; and (18) paying the costs to the Bar required by the Court’s order granting his petition for disciplinary resignation.

Several witnesses testified on Barnett’s behalf. Judy Rushlow, the Assistant Director of FLA testified concerning Barnett’s contracts with FLA and his exemplary record of compliance with the contract terms since he signed his first contract with FLA in January 1998. The Honorable Hugh Alfred Carithers, Circuit Judge in Jacksonville, Florida, also testified on Barnett’s behalf. Judge Carithers testified that he is sure that Barnett has not used alcohol or illegal drugs since he has known him. He said the two most important things to Barnett are his ability to have honest relationships with others and his sobriety. Judge Carithers also testified that he and Barnett never had a meeting during which they did not pray together. He described Barnett as a very spiritual, giving person, who is always doing things for others, and as a very public-minded person. He also described Barnett as one of the most honest and moral people he has ever met and he would trust Barnett with his own money or with any case he was qualified to handle. Judge Carithers unequivocally recommended that. Barnett be readmitted to the Bar.

In addition to the live testimony presented, Barnett introduced into evidence the affidavits of five attorneys, one judge, a rabbi, the applicant’s AA sponsor, an individual Barnett sponsored in AA, and a fellow member of Gateway, as well as the depositions of his employer and his younger brother.

The Board concluded that Barnett’s evidence established rehabilitation by clear and convincing evidence as required by rule 3-13. While the Board recognized that Barnett established a nine-year record of sobriety, it ■ nevertheless recommended conditional admission and a probationary period because of the additional stress Barnett is likely to face upon his return to the practice of law. The Board recommends, and Barnett agrees, that Barnett’s probationary period and conditional admission should include several conditions, among which are continued abstinence from alcohol and controlled substances and compliance with his FLA contract.

ANALYSIS

In the bar admission process the burden is upon the applicant to demonstrate his or her good moral character. Fla. Bd. of Bar Exam’rs re H.H.S., 373 So.2d 890, 891-92 (Fla.1979). Disbarment alone is disqualifying for admission to the Bar unless an applicant can show clear and convincing evidence of rehabilitation. Fla. Bd. of Bar Exam’rs re Papy, 901 So.2d 870, 872 (Fla.2005). Disciplinary resignation is tantamount to disbarment. Fla. Bar v. Hale, 762 So.2d 515 (Fla.2000).

In determining whether the petitioner has shown sufficient rehabilitation, the nature and seriousness of the offense are to be weighed against the evidence of rehabilitation. Fla. Bd. of Bar Exam’rs re M.L.B., 766 So.2d 994, 996 (Fla.2000); Fla. Bd. of Bar Exam’rs re D.M.J., 586 So.2d 1049, 1050 (Fla.1991). The “more serious the misconduct, the greater the showing of rehabilitation that will be required.” Fla. Bd. of Bar Exam’rs re J.J.T., 761 So.2d 1094, 1096 (Fla.2000).

The Papy case is instructive. The respondent in Papy was an attorney who had been previously admitted to the Bar and had resigned pending disciplinary proceedings. He resigned after misappropriating funds from one or more of his clients, failing to timely file federal income tax returns for five years, failing to timely pay income taxes for six years, and having federal tax liens for unpaid taxes for four years filed against him. At the time of the formal hearing for readmission, the respondent still had not satisfied the tax liens for two of the years and failed to make the parties injured by his defalcations whole. The Board recommended that the respondent be denied admission. The Court approved that recommendation. “Papy simply has not made adequate progress in rectifying his financial irresponsibility for this Court to even consider his admission to the Bar at this time.” 901 So.2d at 872. “Further, Papy has not engaged in any effort whatsoever to make whole the others who suffered financial consequences as a result of his misconduct.” Id. Stealing from a client is among those acts at the very top of the hierarchy of offenses for which lawyers may be disciplined. Id.; see also Fla. Bar v. Korones, 752 So.2d 586, 589 (Fla.2000) (disbarring attorney for five years for misappropriating funds from his deceased uncle’s estate); Fla. Bd. of Bar Exam’rs re M.A.R., 755 So.2d 89, 91-92 (Fla.2000) (denying admission to attorney who failed to timely file and pay income taxes and wrote worthless checks).

Barnett testified that he has repaid the Client Compensation Fund over $20,000 to replace the money the Fund paid out to Barnett’s former clients. He also paid the Geico judgment. He has paid all taxes, interest, and penalties he owed to the IRS. He has not paid the Itzhaki judgment because he does not know where Itzhaki is located.

Rule 3 — 23.6(b) gives the Board the authority to recommend the conditional admission of an applicant “in exceptional cases involving drug, alcohol, or psychological problems on the terms and conditions specified by the Board.” There is no rule or provision which restricts conditional admissions to first-time applicants. There is no case holding that conditional admissions are inappropriate for attorneys who were previously Bar members, but who resigned while disciplinary proceedings were pending against them. Further, conditional admission is appropriate because Barnett admits that he had a serious drug addiction for over twenty years and that he entered a recovery program after his resignation from the Bar.

We agree with the Board that Barnett’s rehabilitation evidence was sufficient to overcome his past misconduct. His actions in making restitution to those he injured and in satisfying his financial obligations demonstrate he has done what could be done to atone for his misconduct. That he has established a solid program of recovery for close to a decade, is continuing to actively participate in a recovery program, and is helping others in their recoveries are also important factors in our decision.

Further, we agree with the Board that Barnett’s admission should be conditional. As noted by the Board, although Barnett practiced law before, he has not practiced law since becoming clean and sober. The conditional admission and probationary conditions, to which Barnett agrees, will ensure that any problems that arise can be quickly identified and addressed so that the profession and the public are protected.

CONCLUSION

Accordingly, for the reasons expressed above, we approve the Board’s report and recommendation and admit Mark Stephen Barnett to The Florida Bar on a conditional basis for three years. Barnett shall be on probation for the first three years of his admission with the probationary conditions recommended by the Board.

It is so ordered.

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

LEWIS, C.J., dissents with an opinion, in which WELLS, J., concurs.

BELL, J., dissents with an opinion.

LEWIS, C.J.,

dissenting.

Because I do not believe that Barnett’s rehabilitation evidence sufficiently outweighs his past misconduct to support his unconditional admission and because I believe the conditional admission process should be reserved for first-time applicants, I must, respectfully, dissent.

Former members of The Florida Bar or of the bars of other states who have been disbarred or who have resigned in lieu of disciplinary proceedings should not be viewed in the same light in the admissions process as first-time applicants. I am of the view that the availability of conditional admission should be restricted to the case in which a first-time applicant for admission to the Bar, who has suffered in the past from drug or alcohol addiction or a psychological problem, is now clean and sober or functioning normally with medication. Conditional admission under such circumstances allows the Bar to monitor the applicant’s compliance with the treatment regimen for swift action to be taken to revoke the license if a relapse occurs, yet still allow some youthful mistakes to be overcome. See Fla. Bd. of Bar Exam’rs re J.A.S., 658 So.2d 515, 516 (Fla.1995) (conditionally admitting applicant with former drug addiction).

The same policy considerations do not exist for applicants who have previously been members of the Bar, but who have resigned or been disbarred because of serious misconduct as an attorney. These applicants have already been given a chance and have failed to honor and satisfy their obligations. Barnett falls into this category. He was previously admitted to The Florida Bar. While a practicing attorney he engaged in extensive unethical and egregious conduct and resigned in lieu of disciplinary proceedings. He should be required to prove his rehabilitation such that the recommendation for admission is unconditional. The conduct preceding the resignation was moving rapidly to disbarment.

As noted by the majority, the nature and seriousness of the offense must be weighed against the evidence of rehabilitation in determining whether the petitioner has shown sufficient rehabilitation, Fla. Bd. of Bar Exam’rs re M.L.B., 766 So.2d 994, 996 (Fla.2000). Also, the “more serious the misconduct, the greater the showing of rehabilitation that will be required.” Fla. Bd. of Bar Exam’rs re J.J.T., 761 So.2d 1094, 1096 (Fla.2000).

Barnett’s rehabilitation evidence included evidence that he has been clean and sober since December 20, 1997, a little over nine years. He has been working as a paralegal for various attorneys since January 1998 and is involved in AA and Gateway, attending several meetings every week as part of his own recovery efforts and to assist others in their recovery efforts. While commendable, these activities seem to be a “showing that an individual is now living as and doing those things he or she should have done throughout life” to keep himself clean and sober and “does not prove that the individual has undertaken a useful and constructive place in society” sufficient to outweigh his past misconduct. See Fla. Bar Admiss. R. 3-13(g). Although this rehabilitation evidence might be sufficient to convince the Board and the Court that someone who had a drug addiction problem in the past as a sole disquali-fier should be given a chance to prove himself worthy of Bar membership, it is not enough to atone for Barnett’s other, extremely serious and egregious misconduct. Even if conditional admission were available for those in the position of Barnett, he has not satisfied the requirements for that method of admission.

In making the determination whether the rehabilitation evidence is sufficient to outweigh the misconduct, the Court may review the factual underpinnings of the Board’s recommendation by conducting an independent review of the record. M.L.B., 766 So.2d at 996; J.J.T., 761 So.2d at 1096; Fla. Bd. of Bar Exam’rs re R.D.I., 581 So.2d 27, 29 (Fla.1991). A review of the transcript of the formal hearing in this case reveals several very troubling items of information not reflected in the Board’s findings. In 2004, Barnett informed the Board that he would not pay Itzhaki the money he still owes because Itzhaki still owes him money. Then, only two weeks prior to the formal hearing, Barnett called Itzhaki’s attorney to find Itzhaki so that he could pay the debt. This turnaround suggests Barnett’s restitution efforts are motivated by his desire to gain readmission and not a true desire to make whole those he has injured.

There is also the manner in which Barnett addressed his failure to timely file his federal income tax returns. Barnett testified that he did not timely file his income tax returns after he became sober because of fear and because the obligation was so overwhelming. He knew he could not pay the taxes, interest, and penalties he owed for the early years, so he did not even file the returns. Even after he entered recovery and was working again, he did not file a return because of a stated fear that filing a return would cause the IRS to realize that he had not filed returns for several earlier years. Rather, he reasoned to wait until he had saved enough money to pay the taxes before he contacted the IRS.

Barnett’s conscious decision to continue in violation of the law after he was in recovery to forestall the IRS’s discovery of his earlier transgressions demonstrates that his addiction was not the cause of all of this illegal conduct. It also demonstrates that he is one who is willing to violate the law when it is in his interest to do so. This has occurred as recently as 2003. This, in my view, negates Barnett’s ability to show that his character is above reproach, a requirement for readmission.

Barnett ultimately contacted the IRS in 2003 or 2004. At that time, he had saved approximately half of the money he needed.- His mother was forced to refinance her home to loan him the money to pay his obligations. This occurred in December 2004. There is no evidence concerning whether Barnett is repaying his mother, how much, or when. That Barnett forced his mother to mortgage and encumber her home to satisfy his debts to the IRS demonstrates, in my view, that he has failed to accept full responsibility for his past misconduct. The rescuing of a child by a parent may be laudable for his mother, but it does not speak highly of Barnett.

In addition, his other evidence of rehabilitation falls flat. Although I recognize and appreciate that much of Barnett’s conduct may have been prompted or exacerbated by his substance abuse and the battle he has had with his addiction, I nevertheless believe that he engaged in illegal conduct (the use of controlled substances) when he was first admitted to the Bar, engaged in and continued to engage in illegal drug use while he represented the people of Florida with the Attorney General’s Office, and he continued his illegal drug use until he was caught. He did not seek treatment or help with his addiction until after he was caught and resigned in lieu of disciplinary proceedings. Into and including 2003 he continued to violate the law unconnected with substance abuse for his own advantage. Thereafter, he imposed on his mother to rescue him from his disregard of the law. This demonstrates to me the absence of that strength of character needed by a member of the Bar and necessary for admission.

Because, in my estimation, the rehabilitation evidence is insufficient to outweigh Barnett’s past egregious misconduct or to justify unconditional admission and because I believe conditional admission should be available only to first-time applicants, I would disapprove the Board’s recommendation and deny admission to Barnett at this time. He violated the trust he was given as an officer of the Court and that is not the same condition as one having youthful transgressions but ready to begin an office of trust. Barnett was given the privilége but did not honor that responsibility. I conclude that conditional admission is not designed for this use and even if it were, Barnett has not sufficiently demonstrated that he should be 'admitted under this approach.

WELLS, J., concurs.

BELL, J.,

dissenting.

I agree with Chief Justice Lewis that the conditional admission process should be reserved for first-time applicants to the Bar. I also agree that Barnett does not qualify for unconditional admission.

      . Barnett testified at the final hearing in this matter that his license was suspended for eighteen months, not six.


source: Caselaw Access Project

author: PER CURIAM. WELLS, J.,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Elizabeth MARTINEZ-GENOVA, Respondent.
    No. SC04-2365.
    Supreme Court of Florida.
    June 14, 2007.

      John F. Harkness, Jr., Executive Director, and Kenneth L. Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, Barnaby Lee Min, Bar Counsel, The Florida Bar, Miami, FL, for Complainant.
    Nancy C. Wear, Coral Gables, FL, and Gary S. Glasser, Miami, FL, for Respondent.
   REVISED OPINION

PER CURIAM.

Upon consideration of the Bar’s motion for rehearing, we withdraw our previous opinion and issue the following opinion.

We have for review a referee’s report recommending that attorney Elizabeth Martinez-Genova be found guilty of professional misconduct and suspended from the practice of law. We have jurisdiction. See art. V, § 15, Fla. Const.

We approve the referee’s factual findings with regard to guilt on all rule violations. However, we do not approve the referee’s recommended discipline because we find that a three-year suspension is insufficient because of the serious violations that she committed. For the reasons that follow, Elizabeth Martinez-Genova is disbarred from the practice of law in the State of Florida, effective, nunc pro tunc, October 20, 2004, the date on which Martinez-Genova was suspended by order of this Court.

FACTS

On December 16, 2004, The Florida Bar filed a two-count complaint against respondent Elizabeth Martinez-Genova. In count one, the Bar alleged that Martinez-Genova intentionally misappropriated third-party funds and failed to maintain proper trust accounting procedures. In Count two, the Bar alleged that Martinez-Genova’s arrests for cocaine use and possession were a violation of rule 4-8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) of the Rules Regulating the Florida Bar. After conducting a hearing, the referee issued a report in which she made the following findings and recommendations.

Count I

Martinez-Genova represented her client Gary Wyekle, President of Charter One Group, Inc. (Charter One), in a series of transactions with Juan Aramendia and Eduardo Solares of Nikita Investment Corporation (Nikita). Charter One and Nikita entered into a conditional loan commitment agreement under which Charter One was to assist Nikita in obtaining a loan for $35 million to fund the acquisition of a pulp plant and saw mill in Guatemala. This conditional loan commitment was signed by Solares and Wyekle. The commitment stated that the borrowers would deliver $60,000 to Charter One’s attorney, to be held in trust and credited to loan fees at closing. Martinez-Genova testified that she believed that Wyekle asked her, as his attorney, to hold the funds because doing so would make Wyekle appear “more credible” to his business partners.

Martinez-Genova did not sign the conditional loan commitment. However, Martinez-Genova did approve sending, on her letterhead stationery stating that she was an attorney, two letters, dated February 11, 2004, and February 19, 2004, directing Aramendia and Solares to wire transfer their deposits to her bank account. Both letters stated that the wire transfer funds would be credited to the loan commitment fee stipulated in the loan commitment. On February 12, 2004, Solares wired $8000 to Martinez-Genova’s account. On February 19, 2004, Aramendia wired an additional $52,000 to Martinez-Genova’s account. Ultimately, Charter One did not obtain financing on behalf of Nikita. Charter One also failed to refund any of the $60,000 deposit.

In response, Nikita retained Richard Brenner, who filed a complaint with The Florida Bar on August 28, 2004, regarding Martinez-Genova’s involvement in the failed loan transaction. A Bar staff auditor examined Martinez-Genova’s sole bank account for the period of June 21, 2003, to August 23, 2004. The auditor discovered that as of February 12, 2004, Martinez-Genova had a balance of $11.04. Then, on February 13, 2004, Martinez-Genova received a wire transfer in the amount of $8000 from Solares, acting under the name Helicópteros Del Norte. In the following days, Martinez-Genova made a $7700 over-the-counter cash withdrawal and several ATM withdrawals of smaller amounts. As of February 17, 2004, only $18.82 remained in Martinez-Genova’s account.

On February 20, 2004, Martinez-Genova received a wire transfer in the amount of $52,000 from Aramendia. During the following week, Martinez-Genova made four over-the-counter cash withdrawals from her account totaling $25,150. Martinez-Genova also authorized three wire transfers to Charter One and its designees totaling $26,103. Finally, Martinez-Genova made a number of debit card purchases and ATM withdraws from her account during that same week. On February 27, 2004, the balance in Martinez-Genova’s operating account was $327.50. By March 8, 2004, Martinez-Genova had a balance of negative $26.96.

Martinez-Genova testified that she agreed to act as Wyckle’s agent in the Nikita transaction in exchange for a fee of three percent of the $60,000 deposit. She claims to have only retained or spent her $1800 fee and to have given the balance of the cash she withdrew to Wyekle. However, Martinez-Genova did not keep any records of the above transactions or document her fee.

Martinez-Genova’s pattern of receiving third-party funds and disbursing them to herself or Wyekle resumed on May 13, 2004. Beginning with a balance of $1, Martinez-Genova received wire transfers totaling $59,800 over a three-month period. From these funds, Martinez-Genova transferred $53,850 to American Escrow Company, LLC, which was owned by Gary Wyckle, withdrew $5811 in cash and used $139 to pay bank charges.

After a hearing, the referee found Martinez-Genova guilty of violating Rule of Professional Conduct 4 — 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and Rules Regulating Trust Accounts 5-l.l(a) (Nature of Money or Property Entrusted to Attorney), 5 — 1.1(b) (Application of Trust Funds or Property to Specific Purpose), 5-l.l(e) (Notice of Receipt of Trust Funds; Delivery; Accounting), 5-1.1(f) (Disputed Ownership of Trust Funds), 5-1.2(b) (Minimum Trust Accounting Records), 5-1.2(c) (Minimum Trust Accounting Procedures), and 5-1.2(d) (Record Retention).

Specifically, the referee found that the deposit sent to Martinez-Genova by Nikita was to be held in trust according to the loan commitment and that despite this expectation of trust, Martinez-Genova “had a pattern of receiving third-party funds and simultaneously withdrawing and disbursing from those funds.” The referee found that “third-party funds were not being used for their intended purpose” and that Martinez-Genova “willfully ignored her responsibilities as an attorney during the period in which she misappropriated money from third-parties.” Finally, the referee found that Martinez-Genova “knew that what she was doing was wrong” and noted that neither Martinez-Genova nor Wyckle had made restitution.

Count II

The Bar’s complaint also addressed Martinez-Genova’s history of drug use and repeated arrests for drug possession. Martinez-Genova was arrested three times for possession of cocaine between June 20, 2002, and June 4, 2004. After the last arrest, Martinez-Genova was incarcerated and remained in custody until she was transferred to St. Luke’s Addiction Recovery Center, an in-patient drug treatment facility, in July 2004. She remained in St. Luke’s until she was successfully discharged in September 2004. The referee found that Martinez-Genova’s drug use and possession violated Rule of Professional Conduct 4-8.4(b) (A lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).

Applying the Florida Standards for Imposing Lawyer Sanctions, the referee found four aggravating factors: (1) Martinez-Genova acted from a selfish motive— the support of her drug habit; (2) she displayed a pattern of misconduct over a substantial period of time; (3) she was involved in a series of improper transactions, amounting to multiple offenses; and (4). she caused actual harm to third parties without payment of restitution to them.

The referee found nine mitigating factors: (1) Martinez-Genova had personal and emotional problems including a cocaine addiction and clinical depression; (2) she cooperated with the Bar during its investigation; (3) she was inexperienced in the practice of law; (4) she made a good-faith effort to rectify the misconduct set out in Count II by voluntarily entering into a three-year contract with Florida Lawyers Assistance, Inc. (FLA); (5) she presented evidence of good character; (6) she had a mental disability (cocaine addiction, clinical depression); (7) she expressed remorse for her misconduct; (8) she entered into interim rehabilitation programs (three-year contract with FLA, outpatient therapy, Narcotics Anonymous); and (9) she had imposed upon her other penalties or sanctions (Martinez-Genova must attend Miami Behavioral meetings, submit to semiweekly drug tests, and attend Alcoholics Anonymous and Narcotics Anonymous meetings for a period of one year by court order; Martinez-Genova suffered negative publicity in The Miami Herald; Martinez-Genova lost visitation with her son in part due to her drug use).

Based on these factors and Florida case law, the referee recommended that Martinez-Genova be sanctioned by a three-year suspension, retroactive to the date of her emergency suspension, followed by a two-year period of probation "if reinstated. During this probationary period, Martinez-Genova would be required to participate in FLA, submit to mandatory semimonthly urine tests, participate in outpatient therapy, and enroll in the Law Office Management Assistance Service (LOMAS) program regarding the operation of trust accounts. Martinez-Geno-va’s trust transactions would be monitored by a suitable mentor during the probationary period. The referee also recommended that the Bar’s costs be imposed against Martinez-Genova.

The Bar filed a petition for review with this Court, seeking disbarment rather than the recommended discipline. Martinez-Genova argues that suspension is appropriate given the referee’s findings of mitigating factors.

ANALYSIS

Neither party challenges the findings of fact or recommendations as to guilt. Accordingly, we approve without further discussion the referee’s recommendation that Martinez-Genova be found guilty of violating the above rules. As to the recommended discipline, the Bar argues that case law requires this Court to reject the referee’s recommendation of discipline. We agree.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because ultimately it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Lawless, 640 So.2d 1098, 1100 (Fla.1994); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. Fla. Bar v. McFall, 863 So.2d 303, 307 (Fla.2003).

In this case, existing law indicates that the referee’s recommendation of suspension is not sufficient discipline in accord with our case law in respect to a lawyer’s misuse of client funds. Disbarment is the presumptive discipline for misuse of client funds because it is unquestionably one of the most serious offenses a lawyer can commit. Fla. Bar v. Gross, 896 So.2d 742 (Fla.2005); Fla. Bar v. Barley, 831 So.2d 163 (Fla.2002); Fla. Bar v. Tillman, 682 So.2d 542 (Fla.1996); Fla. Bar v. Weinstein, 635 So.2d 21 (Fla.1994); Fla. Bar v. Shanzer, 572 So.2d 1382 (Fla.1991). This presumption of disbarment is “exceptionally weighty when the attorney’s misuse is intentional rather than a result of neglect or inadvertence.” Barley, 831 So.2d at 171.

Martinez-Genova’s misuse of third-party funds was intentional. Martinez-Genova’s letters to Aramendia and Solares indicated that the wire-transferred funds, totaling $60,000, would be credited to the loan commitment fee. Aramendia and Solares had a right to rely upon her not misusing the funds since the funds were sent to Martinez-Genova, who had sent them letters as an attorney. The referee found the commitment fee was to be held in trust. Yet, bank records indicate that on February 23, 2004, Martinez-Genova completed a withdrawal ticket for a $4500 cashier’s check and another for $8000 in cash. A few days later, on February 27, 2004, Martinez-Genova again completed two -withdrawal tickets, one for a $6600 cashier’s check and another for $6050 in cash. During this period, Martinez-Genova also initiated three separate wire transfers, totaling $26,103, to Charter One and its creditors. Martinez-Genova could not have inadvertently walked into her bank branch and unintentionally made these withdrawals from her account.

This Court agrees with the referee’s finding that Martinez-Genova “willfully ignored her responsibilities as an attorney during the period in which she misappropriated money from third-parties.” As a result, Martinez-Genova’s misconduct is not analogous to negligent misappropriation cases such as Florida Bar v. Mason, 826 So.2d 985 (Fla.2002), and Florida Bar v. Wolf, 930 So.2d 574 (Fla.2006), where this Court has found suspension to be an adequate sanction.

In both Mason and Wolf the Court found that the attorneys’ misappropriations were due to mistakes in accounting practices and that there was no evidence that any clients ultimately sustained losses. Mason, 826 So.2d at 988; Wolf, 930 So.2d at 578. In contrast, Martinez-Geno-va kept no bank account records at all and intentionally withdrew funds that were to be held in trust. Moreover, Martinez-Genova has not made restitution to any of the injured parties.

The Florida Standards for Imposing Lawyer Sanctions confirms that disbarment is the appropriate sanction in the present disciplinary action. Section 7.1 states:

Disbarment is appropriate when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

The referee found that Martinez-Genova knowingly caused injury to members of the public for the benefit of herself and her client Wyckle. Thus, disbarment is appropriate under the Florida Standards for Imposing Lawyer Sanctions.

Martinez-Genova argues that the circumstances surrounding her misappropriation mitigate against disbarment. This Court has considered whether an attorney’s personal and emotional problems, such as drug addiction, outweigh the seriousness of the attorney’s misconduct when determining what discipline to impose. However, the Court finds mitigating factors to overcome the presumption of disbarment for misappropriation only in exceptional and unusual circumstances because this Court refuses to “excuse an attorney for dipping into his trust funds as a means of solving personal problems.” Fla. Bar v. Shanzer, 572 So.2d at 1384.

For example, in Florida Bar v. Shuminer, 567 So,2d 430 (Fla.1990), the Court disbarred an attorney who misappropriated client funds despite finding the mitigating factors present in the current action, personal and emotional problems, cooperation with the Bar, inexperience in the practice of law, good reputation, mental impairment due to addiction, successful rehabilitation efforts, and remorse, plus the additional factors that Shuminer had no prior disciplinary history and he had made a good-faith effort at restitution.: Notwithstanding this long list of mitigating factors, the Court found that Shuminer “failed to establish that his addictions rose to a sufficient level of impairment to outweigh the seriousness of his offenses.” Id. at 432.

Similarly, in Florida Bar v. Clement, 662 So.2d 690 (Fla.1995), the Court' disbarred an attorney for intentional misappropriation where the attorney was diagnosed with bipolar disorder. The Court held that Clement’s psychological disorder did not outweigh the seriousness of his misconduct because the referee found that Clement could distinguish right from wrong at the time of his misconduct. Id. at 699.

Martinez-Genova makes no more showing of impairment than Shuminer or Clement. Just as Shuminer “continued to work effectively” during his struggle with alcoholism, the referee found that Martinez-Genova passed the Florida Bar Examination and handled a complex litigation case despite daily cocaine use. Shuminer, 567 So.2d at 432. And the referee found that, like Clement, Martinez-Genova was able to distinguish right from wrong at the time of the misappropriation despite the effects of her drug addiction and depression.

Furthermore, Martinez-Genova’s situation is distinguishable from a case where this Court found an attorney’s personal problems to outweigh the seriousness of her misconduct. In Florida Bar v. Tauler, 775 So.2d 944, 947 (Fla.2000), the Court approved the referee’s recommendation of suspension and distinguished Shuminer and Shanzer after the referee found that Tauler was “less culpable” because her misconduct was the product of personal and emotional distress. Specifically, the referee found that Tauler’s husband was the “prime mover” behind her wrongdoings. Id. Yet, in Tauler, we expressly cautioned that “without the unique mitigating circumstances presented in the instant case and Tauler’s clear commitment to providing legal assistance to those in need, we would not hesitate to disbar Tauler.” Id. at 949.

Martinez-Genova’s case does not present the same unique mitigating circumstances as Tauler. Most notably, while Martinez-Genova has made no attempt at restitution, Tauler made timely and good-faith restitution. Also, while Martinez-Genova has provided some pro bono assistance, Tauler dedicated hundreds of hours to assisting the poor prior to her suspension. Finally, Martinez-Genova has some history of misconduct, whereas the Court did not note any previous discipline in Tauler.

Martinez-Genova’s struggle with drug addiction and clinical depression and her admirable progress towards rehabilitation are relevant to this Court’s determination of discipline. However, this is not a case where an attorney’s substance abuse and personal turmoil cast doubt on the knowing, intentional nature of his or her misconduct. Upon review of all of the facts, prior case law, and the Florida Standards for Imposing Lawyer Sanctions, we find disbarment to be the appropriate level of discipline.

Finally, the referee recommended that costs in the amount of $8,235.52 be charged to Martinez-Genova. The Bar has requested that the costs incurred in seeking appellate review of the referee’s erroneous recommendation of discipline also be charged to the respondent. This Court has final discretionary authority to award costs. Fla. Bar v. Lechtner, 666 So.2d 892 (Fla.1996); Fla. Bar v. Bosse, 609 So.2d 1320 (Fla.1992). In Lechtner, this Court explained:

[Generally, when there is a finding that an attorney has been found guilty of violating a Rule Regulating the Florida Bar, the Bar should be awarded its costs. Assessment of costs against a respondent who has violated the Rules of Discipline is a policy decision. The choice is between imposing the costs of discipline on those who have violated our Rules of Professional Conduct or on the membership of the Bar who have not. In these situations, it is only fair to tax those costs against the member who has violated the rules.

666 So.2d at 894 (citations omitted). In the instant case, we agree that the Bar’s appellate costs were reasonable and necessary to correct the referee’s erroneous recommendation of discipline for such serious misconduct. We further agree that these costs should be borne by the respondent as a matter of policy.

CONCLUSION

Based on the above, we approve the referee’s findings of fact and recommendations as to guilt but reject the recommended discipline and instead order disbarment. Accordingly, Elizabeth Martinez-Genova is hereby disbarred for a period of five years, effective nunc pro tunc, October 20, 2004, the effective date of the emergency suspension in Florida Bar v. Martinez-Genova, 888 So.2d 19 (Fla.2004) (table). Martinez-Genova may petition the Florida Board of Bar Examiners for readmission five years from the date of the suspension. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32899-2300, for recovery of costs from Elizabeth Martinez-Genova in the amount of $12,651.61, for which sum let execution issue.

It is so ordered.

LEWIS, C.J., and ANSTEAD, PARIENTE, and QUINCE, JJ., concur.

WELLS, J., concurs in part and dissents in part with an opinion, in which CANTERO and BELL, JJ., concur.

WELLS, J.,

concurring in part and dissenting in part.

I concur in the majority’s decision to disbar attorney Elizabeth Martinez-Geno-va because of the serious violations she committed. However, I dissent from the majority’s decision to grant rehearing on the issue of costs and to award the Bar over $4000 in appellate costs.

As the majority correctly notes, generally, the Bar should be awarded its costs as a matter of policy where an attorney is found guilty of "violating a Rule Regulating the Florida Bar. Majority op. at 248-49 (citing Fla. Bar v. Lechtner, 666 So.2d 892 (Fla.1996)). However, no authority dictates that a respondent must always pay the Bar’s disciplinary costs. To the contrary, rule 3-7.6(q)(3) of the Rules of Regulating the Florida Bar provides that when the Bar is successful, in whole or in part, in a disciplinary proceeding, the referee may assess the Bar’s costs against the respondent unless it is shown. that the costs were unnecessary, excessive, or improperly authenticated. This Court has repeatedly held that we have final discretionary authority to award costs and that we may consider whether an expense is reasonable and award or refuse to award that cost as sound discretion dictates. See, e.g., Fla. Bar v. Bosse, 609 So.2d 1320 (Fla.1992); Fla. Bar v. Davis, 419 So.2d 325 (Fla.1982).

While I agree that the referee erred in not recommending disbarment in this case, I nevertheless believe that the Court should exercise its discretion to not impose the Bar’s appellate costs on Martinez-Genova due to the unique circumstances surrounding this appeal. The referee found as mitigating factors that Martinez-Genova cooperated with the Bar in these proceedings and that she was genuinely remorseful for her actions. Martinez-Genova stipulated to the factual allegations against her and admitted that she violated rule 4-8.4(b). She accepted the referee’s recommendations of guilt and discipline rather than petitioning this Court for review of the referee’s report. After the Bar petitioned for review, she still did not challenge the referee’s findings of guilt or recommended discipline. At oral argument, Martinez-Genova’s counsel, appearing pro bono on her behalf, attempted to use that opportunity to argue regarding the Bar’s amended affidavit of costs before being told by this Court to focus on preventing her client from being disbarred.

Given Martinez-Genova’s efforts to minimize the overall cost of these proceedings, I would exercise our discretion to not tax the Bar’s significant appellate costs to her. Martinez-Genova clearly brought most of the expense of this disciplinary proceeding upon herself by violating the Rules Regulating the Florida Bar. However, it is not at all clear, in my opinion, that Martinez-Genova caused the Bar’s appellate costs. I would therefore approve the referee’s recommendation that judgment be entered for the Bar in the amount of $8,235.52.

Moreover, I feel that it is inappropriate for the Court to grant rehearing in this case where the issue of the Bar’s appellate costs was explicitly and fully considered prior to the Bar’s motion for rehearing.

CANTERO and BELL, JJ., concur.

      . Martinez-Genova prepared American Escrow Company’s articles of incorporation and signed as its registered agent.


author: PER CURIAM.

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE, THE FLORIDA RULES OF JUVENILE PROCEDURE, AND THE FLORIDA FAMILY LAW RULES— REPORT OF THE TASK FORCE ON TREATMENT-BASED DRUG COURTS.
    No. SC06-434.
    Supreme Court of Florida.
    June 21, 2007.
    Terry D. Terrell, Chair, Task Force on Treatment-Based Drug Courts, First Judicial Circuit, Pensacola, FL, for Petitioner.
    John Fraser Himes, Chair, the Family Law Rules Committee, Tampa, FL, Mary Katherine Wimsett, Chair, Juvenile Court Rules Committee, Gainesville, FL, William C. Vose, Chair, the Florida Bar Criminal Procedure Rules Committee, Orlando, FL, and John F. Harkness, Jr., Executive Director, the Florida Bar, Tallahassee, FL, responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Criminal Procedure, the Florida Rules of Juvenile Procedure, and the Florida Family Law Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.

By administrative order dated July 6, 2004, the Court charged the Task Force on Treatment-Based Drug Courts (Task Force) with the following:

1. Develop strategies to assist judges with integrating drug court principles in family court proceedings.
2. Review national and state evaluations on drug courts and develop recommended standards of practice for the management of drug courts.
3. Develop standards for dependency and delinquency drug courts.

In re Task Force on Treatment-Based Drug Courts, Fla. Admin. Order No. AOSC04-27 (July 26, 2004) (on file with Clerk, Fla. Sup.Ct.). The Task Force was also “authorized to propose amendments to rules of court procedure on issues involving drug courts, as well as pursue those amendments with the appropriate Florida Bar rules committees.” Id.

On July 24, 2006, the Task Force submitted to this Court a petition requesting that the Court recognize the importance and effectiveness of drug courts by adopting the recommendations made by the Task Force in its 2004 Report on Florida’s Drug Courts and formally recognizing the Ten Key Components of drug courts recently codified by the Legislature, see § 397.334(2)(a)-(j), Fla. Stat. (2006). The petition also proposed, for the Court’s consideration, several “critical performance indicators and data elements” to be used in evaluating the performance and effectiveness of Florida drug courts and a set of guidelines for juvenile delinquency and dependency drug courts. Finally, the petition proposed amendments to Florida Rules of Criminal Procedure 3.131 (Pretrial Release) and 3.170 (Pleas), Florida Rules of Juvenile Procedure 8.010 (Detention Hearing), 8.115 (Disposition Hearing), 8.160 (Transfer of Cases), and 8.250 (Examinations, Evaluations, and Treatment), and Family Law Rule 12.010 (Scope, Purpose, and Title). Only the proposed rule amendments are addressed in this opinion. The Task Force’s other recommendations and requests have been severed from this case and will be addressed separately.

The proposed rule amendments were published for comment in The Florida Bar News on October 15, 2006, with a specific request that the Criminal, Juvenile, and Family Law Rules Committees provide comments to the Court. The committees’ comments have been received. No other comments were filed in response to the publication. The Task Force has filed a response to the committees’ comments.

Upon consideration of the committees’ comments and the Task Force’s response, we adopt several amendments to the Florida Rules of Criminal Procedure and Florida Rule of Juvenile Procedure 8.115 as proposed by the Task Force. Florida Rule of Juvenile Procedure 8.115 (Disposition Hearing) is amended to provide that a child’s need for substance abuse evaluation and treatment may be considered at the disposition hearing. Similarly, Florida Rule of Criminal Procedure 3.131 (Pretrial Release) is amended to provide that a defendant’s need for substance abuse evaluation and treatment may be considered by the court as a factor in determining whether, and on what conditions, to grant pretrial release.

Rule 3.170 (Pleas) is amended to permit a defendant who pleads guilty or nolo con-tendere to a charge for the purpose of transferring the case and participating in a drug court program pursuant to section 910.035, Florida Statutes (2006), to file a motion to withdraw the plea upon successful completion of the program. In order to establish a similar provision in the juvenile rules, the Task Force proposed an amendment to Florida Rule of Juvenile Procedure 8.160 to provide that a child who pleads guilty or nolo contendere to a charge for the purpose of transferring a case under section 910.035 may file a motion to withdraw the plea upon successful completion of the juvenile drug court treatment program. We agree with the Task Force that this provision should be included in the juvenile rules but conclude that the more appropriate placement for this provision is in rule 8.075 (Pleas). Accordingly, new subdivision (f) is added to rule 8.075 to provide:

(f) Withdrawal of Plea After Drug Court Transfer. A child who pleads guilty or nolo contendere to a charge for the purpose of transferring the case, under section 910.035, Florida Statutes, may file a motion to withdraw the plea upon successful completion of the juvenile drug court treatment program.

Finally, we decline to amend Florida Rule of Juvenile Procedure 8.010 and Florida Family Law Rule 12.010 as proposed by the Task Force. We refer the proposed amendment to rule 8.010 back to the Task Force and to the Juvenile Court Rules Committee for joint consideration. The proposed amendment to rule 12.010 is referred to the Family Law Steering Committee and the Family Law Rules Committee for further consideration.

Florida Rules of Criminal Procedure 3.131 (Pretrial Release) and 3.170 (Pleas) and Florida Rules of Juvenile Procedure 8.075 (Pleas) and 8.115 (Disposition Hearing) are amended as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

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

APPENDIX

Rule 3.131. Pretrial Release

(a) [No change]

(b) Hearing at First Appearance— Conditions of Release.

(1) Unless the state has filed a motion for pretrial detention pursuant to rule 3.132, the court shall conduct a hearing to determine pretrial release. For the purpose of this rule, bail is defined as any of the forms of release stated below. Except as otherwise provided by this rule, there is a presumption in favor of release on non-monetary conditions for any person who is granted pretrial release. The judicial officer shall impose the first of the following conditions of release that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process; or, if no single condition gives that assurance, shall impose any combination of the following conditions:

(A) personal recognizance of the defendant;

(B) execution of an unsecured appearance bond in an amount specified by the judge;

(C) placement of restrictions on the travel, association, or place of abode of the defendant during the period of release;

(D) placement of the defendant in the custody of a designated person or organization agreeing to supervise the defendant;

(E) execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; provided, however, that any criminal defendant who is required to meet monetary bail or bail with any monetary component may satisfy the bail by providing an appearance bond; or

(F) any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

(2) The judge shall at the defendant’s first appearance consider all available relevant factors to determine what form of release is necessary to assure the defendant’s appearance. If a monetary bail is required, the judge shall determine the amount.

(3) In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider the nature and circumstances of the offense charged and the penalty provided by law; the weight of the evidence against the defendant; the defendant’s family ties, length of residence in the community, employment history, financial resources, need for substance abuse evaluation and/or treatment, and mental condition; the defendant’s past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings; the nature and probability of danger that the defendant’s release poses to the community; the source of funds used to post bail; whether the defendant is already on release pending resolution of another criminal proceeding or is on probation, parole, or other release pending completion of sentence; and any other facts the court considers relevant.

(4) No person charged with a dangerous crime, as defined in section 907.041(4)(a), Florida Statutes, shall be released on non-monetary conditions under the supervision of a pretrial release service, unless the service certifies to the court that it has investigated or otherwise verified the conditions set forth in section 907.041(3)(b), Florida Statutes.

(5) All information provided by a defendant in connection with any application for or attempt to secure bail, to any court, court personnel, or individual soliciting or recording such information for the purpose of evaluating eligibility for or securing bail for the defendant, under circumstances such that the defendant knew or should have known that the information was to be used in connection with an application for bail, shall be accurate, truthful, and complete, without omissions, to the best knowledge of the defendant. Failure to comply with the provisions of this subdivision may result in the revocation or modification of bail. However, no defendant shall be compelled to provide information regarding his or her criminal record.

(6) Information stated in, or offered in connection with, any order entered pursuant to this rule need not strictly conform to the rules of evidence.

(c) — (i) [No change]

Committee Notes

[No change]

Court Comment

[No change]

Rule 3.170. Pleas

(a) — (k) [No change]

(Z) Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

(m) Motion to Withdraw the Plea after Drug Court Transfer. A defendant who pleads guilty or nolo contendere to a charge for the purpose of transferring the case, pursuant to section 910.035, Florida Statutes, may file a motion to withdraw the plea upon successful completion of the drug court treatment program.

Committee Notes

[No change]

Rule 8.075. Pleas

No written answer to the petition nor any other pleading need be filed.

(a)-(e) [No change]

(f) Withdrawal of Plea After Drug Court Transfer. A child who pleads guilty or nolo contendere to a charge for the purpose of transferring the case, under section 910.035, Florida Statutes, may file a motion to withdraw the plea upon successful completion of the .juvenile drug court treatment program.

Rule 8.115. Disposition Hearing

(a) Information Available to Court. At the disposition hearing the court, after establishing compliance with the disposi-tional considerations, determinations, and discussions required by law, may receive any relevant and material evidence helpful in determining the proper disposition to be made. It shall include written reports required by law, and may include, but shall not be limited to, the child’s need for substance abuse evaluation and/or treatment, and any psychiatric or psychological evaluations of the child that may be obtained and that are relevant and material. Such evidence may be received by the court and may be relied upon to the extent of its probative value, even though not competent in an adjudicatory hearing.

(b)-(d) [No change]

Committee Notes

[No change]

      . The Treatment-Based Drug Court Steering Committee was established in 1998 to make recommendations on the legal, policy, and procedural issues confronting treatment-based drug courts and explore the extent to which this concept can provide a meaningful solution to the devastating effect of substance abuse on our society. This steering committee was reconstituted in 2002 as the Task Force on Treatment-Based Drug Courts.

      . Amendments to rule 8.250 identical to those proposed by the Task Force in this case were proposed by the Juvenile Court Rules Committee and recently adopted by the Court in another case. See In re Amendments to the Florida Rules of Juvenile Procedure, 951 So.2d 804 (Fla.2007). Accordingly, we do not further address these proposed amendments here.


text:
    Andre Owen TURNBULL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-272.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Rehearing and Rehearing En Banc Denied July 18, 2007.
    Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
   PER CURIAM.

Andre Turnbull (“Turnbull”), appeals his conviction and sentence for unlawful driving as a habitual offender. We reverse.

The pertinent facts are as follows: Two police officers stopped Turnbull, an African-American man, for driving with a broken headlight. Turnbull admitted that he was driving with a suspended license, but claimed it was out of necessity to rescue his stranded girlfriend. The officers reviewed Turnbull’s driving record and arrested him. The State charged Turnbull with driving as a habitual traffic offender.

At the beginning of voir dire, the first questions the State asked the prospective jurors were: (1) Do you think the police profile people when they drive down the street? and (2) Do you think that the police racially profile people? Five prospective jurors answered affirmatively. These five prospective jurors were black.

The State exercised peremptory strikes against four of the black venirepersons, who responded to the racial profiling questions. Further, the State used a challenge for cause against the remaining black veni-reperson, who responded to the racial profiling questions.

The State used four peremptory strikes against: Locker Mich. Jeanbaptiste (“Je-anbaptiste”), Linda Fortson Latson (“Lat-son”), Charlotte Felicia Simmons (“Simmons”), and Susan Ann Smith (“Smith”). The defense timely objected to the strikes, stating that the prospective jurors were black, and requested a “race-neutral” reason for the peremptory strikes.

The State’s declared reasons for striking venireperson Jeanbaptiste were that he had experiences with racial profiling and he was arrested for driving with a suspended license. The trial judge accepted these reasons and sustained the State’s peremptory challenge of Jeanbaptiste.

Next, the State articulated that venire-person Latson should be excluded because of her experiences with racial profiling and because the prosecutor thought her experiences would affect her impartiality. The trial judge upheld this reasoning even though Latson explicitly stated that her experiences would not affect her impartiality.

Then, the State expressed that Simmons should be removed because her family had been involved in the criminal justice system. The trial judge accepted this reason as race-neutral and not pretextual.

Finally, the State reasoned that Smith should be stricken because she thought that racial profiling was prevalent in the community. The trial judge sustained the peremptory challenge. Turnbull renewed his objections to the challenged jurors before the jury was sworn.

At trial, Turnbull raised the defense of necessity, arguing that he had only driven the car as a last resort. Turnbull never argued that the officers pulled him over because of racial profiling. The jury found Turnbull guilty of unlawful driving as a habitual traffic offender, and the trial judge sentenced him to eighteen months in prison. This appeal follows.

On appeal, Turnbull asserts that the State improperly used peremptory challenges to exclude black jurors based on their beliefs that racial profiling was prevalent in the community. The State contends that excluding prospective jurors who believe that racial profiling is prevalent in the community is a race-neutral reason. Based on the specific facts in this case where racial profiling was not an issue at trial, and based on the manner the State asked the questions, we disagree with the State.

We reverse because the State’s questioning on racial profiling and use of the elicited responses to strike black jurors constituted a subterfuge to the constitutional principles of the Sixth Amendment’s right to a trial by a jury of one’s peers. Our system of justice requires this result.

Although we recognize that a party has the right to use peremptory challenges to remove jurors without cause, the purpose of the challenge is derogated when a party intentionally discriminates against prospective jurors. Both the United States Supreme Court and the Florida Supreme Court have denounced the use of peremptory strikes based on race. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Neil, 457 So.2d 481 (Fla.1984).

Courts have recognized that racial discrimination in jury selection is ubiquitous and have attempted to delineate a way to reduce the discrimination by setting out specific guidelines. See Batson, 476 U.S. at 82, 106 S.Ct. 1712; Melbourne v. State, 679 So.2d 759 (Fla.1996). Without regurgitating the long line of Florida opinions that trace the proscribed discriminatory peremptory challenges, it is sufficient to say that the reasons must be race-neutral and genuine.

A facially race-neutral reason is one that is not based on race at all. See Russell v. State, 879 So.2d 1261, 1263 (Fla. 3d DCA 2004). The courts can consider relevant circumstances when determining if the explanation is race-neutral. Such circumstances can include: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment. See Melbourne, 679 So.2d at 764.

When considering whether the explanation is race-neutral, the trial judge must also look to the genuineness of the proffered reason. See Whitby v. State, 933 So.2d 557 (Fla. 3d DCA 2006). An appellate court will review the genuineness assessment for clear error. See Frazier v. State, 899 So.2d 1169 (Fla. 4th DCA 2005). Here, based upon the surrounding circumstances of this case, we conclude that the State’s reasoning for striking at least one of the prospective jurors was not genuine. Thus, the trial court committed clear error.

Here, the question of racial profiling did not bear any relevance to the case. The questions on racial profiling were not asked to illicit jurors’ general feelings toward law enforcement. Instead, the State designed tangential questions on racial profiling to elicit responses from potential black jurors, which the State later held against them when selecting the final jury panel.

The term “racial profiling,” standing alone, can be a term that engenders a visceral response. When used in a trial milieu, one should inevitably realize that the term is not race-neutral, particularly with black jurors. Here, the State reasoned that the prospective jurors’ experiences with racial profiling and their beliefs that racial profiling is prevalent would affect their impartiality. We conclude that this reasoning, standing alone, is not a genuinely race-neutral justification to purge them from the final jury panel.

We recognize that litigants may question potential jurors concerning their opinions on law enforcement or the justice system. Indeed, there are many perfectly acceptable questions that attorneys may ask to determine the prospective jurors’ feelings about police officers. In some instances, a racial profiling inquiry may be relevant in voir dire, such as when a juror brings up the subject of racial profiling, or when racial profiling is related to the defense at trial. However, these circumstances were not present in this case.

The trial court’s decision to accept elicited responses to questions on racial profiling as race-neutral and genuine was clearly erroneous. The logical extrapolation of allowing this initial line of questioning is that attorneys will use irrelevant inflammatory questions to incite jurors to respond. Then, in turn, the attorneys may use the elicited responses as neutral reasons to justify the peremptory challenges. We cannot condone this trial strategy because it defeats the spirit and intent of Melbourne.

Accordingly, we find that the State’s justification of its peremptory challenges was not race-neutral and was not genuine. Therefore, since Turnbull did not receive a fair trial by a jury of his peers, we reverse and remand for a new trial.

Reversed and remanded.


text:
    XPRESS TITLE, INC., Appellant, v. JASON M. WANDNER, P.A., Appellee.
    No. 3D05-1085.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Rehearing and Rehearing En Banc Denied July 19, 2007.
    Rodolfo Nunez; Hunter, Williams & Lynch, Coral Gables, and Christopher Lynch, for appellant.
    Jason M. Wandner, in proper person.
    Before COPE, C.J., and FLETCHER and CORTINAS, JJ.
   PER CURIAM.

Xpress Title, Inc. appeals from the trial court’s order denying its motion to vacate a default final judgment in favor of Jason M. Wandner, P.A. We reverse.

Wandner sued Xpress Title and Nicelo and Elizabeth Mendez for failure to satisfy a judgment lien. In a separate suit Wand-ner had obtained a final judgment in the amount of $21,260.84 against Marlene Ramirez, a non-party to the instant suit, which was properly recorded so that it became a lien on Ramirez’ home. Ramirez then sold her home to Nicelo and Elizabeth Mendez and Xpress Title was the closing agent. Prior to the sale, Xpress Title requested a payoff letter from Wand-ner detailing the definite amounts due under the judgment, which Wandner provided. The closing occurred, but Wandner’s judgment was not satisfied. Subsequently, Wandner filed an amended complaint against Xpress Title alleging fraudulent misrepresentation and violations of sections 501.204 and 772.104, Florida Statutes (2004), and against the Mendezes to foreclose upon the property. The trial court entered a default judgment against Xpress Title for failure to file a responsive pleading, and later, entered a final judgment against Xpress Title for the full amount of the judgment lien.

Xpress Title sought to set aside the final judgment alleging that it was fundamental error to enter final judgment without notice to Xpress Title, and that the damages had to be proven at trial where the complaint sought unliquidated damages. After a hearing, the court entered an order denying Xpress Title’s motion, finding that the damages set forth in the complaint were indeed fixed and definite and, therefore, liquidated. Damages are liquidated when they can be determined by mathematical calculation or the application of definite rules of law. See Hill v. Murphy, 872 So.2d 919 (Fla. 2d DCA 2003); see also Fiera.com, Inc. v. DigiCast New Media Group, Inc., 837 So.2d 451 (Fla. 3d DCA 2002); Dunkley Stucco, Inc. v. Progressive Am. Ins. Co., 751 So.2d 723 (Fla. 5th DCA 2000).

However, the title company points out that since it was acting as escrow agent, the plaintiff suffered injury only if there was enough money in escrow for him to have his judgment paid in whole or in part after senior claims were satisfied. As payoff of the purchase money mortgage on the property has priority over other liens, the purchase money mortgage would have to be paid off first. Only if there is money left over would Wandner be paid. If no money was left over, Wandner never would have received anything from the escrow and therefore suffered no damages. Because the escrow agent’s liability cannot exceed the amount left over in the escrow, the damages are unliquidated.

Accordingly we reverse the order appealed and remand the cause to the trial court for a trial on damages.

Reversed and remanded.


text:
    T.M., a juvenile, Petitioner, v. Dale DOBULER, Superintendent Miami-Dade Regional Juvenile Detention Center, and The State of Florida, Respondents.
    No. 3D07-294.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Rehearing and Rehearing En Banc Denied July 26, 2007.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Jill K. Traína, Assistant Attorney General, for respondents.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

We deny the petition for writ of habeas corpus. § 985.037(1), Fla. Stat. (2007) (“The court may punish any child for contempt for interfering with the court ..., or for violating any provision of this chapter or order of the court relative thereto.”); see also G.S. v. State, 709 So.2d 122, 123-24 (Fla. 5th DCA 1998)(“Contempt appears to be an alternative permissible procedure to address juvenile violators of community control.”); cf. Cason v. State, 604 So.2d 928 (Fla. 3d DCA 1992)(where an adult defendant allegedly violated condition of probation and there is no indirect criminal contempt statute, the exclusive method for charging and trying the alleged violation was provided for in section 948.06, Florida Statutes (1991) [violation of probation or community control], rather than by indirect criminal contempt). However, we remand for the trial court to enter an order complying with Florida Rule of Juvenile Procedure 8.150(b).

Petition denied and case remanded for further proceedings.


text:
    Luis GURIDI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1867.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.

      Luis Guridi, in proper person.
    Bill McCollum, Attorney General, Orlando, and Richard L. Polin, Bureau Chief, Criminal Appeals, Miami, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant, Luis Guridi’s, motion pursuant to Florida Rule of Criminal Procedure 3.800(a).

On October 6, 2006, we ordered appellant to show cause why he should not be prohibited from filing further pro se proceedings in this court concerning his conviction and sentence in case number 75-8264. We have carefully considered defendant’s response. See State v. Spencer, 751 So.2d 47 (Fla.1999). Concluding that good cause has not been shown, we now prohibit him from filing any additional pro se appeals, pleadings, motions, or petitions relating to this conviction and sentence.

On January 13, 1976, appellant was convicted of second-degree murder and sentenced to life in prison with a twenty-five-year mandatory minimum term. On direct appeal, we affirmed the conviction, but remanded for correction of the sentence by deleting the twenty-five-year mandatory minimum. Guridi v. State, 364 So.2d 872 (Fla. 3d DCA 1978). On January 15, 1979, appellant was re-sentenced pursuant to our remand. Since then, appellant has by our count filed eighteen motions, petitions, or appeals in this court seeking collateral review of his conviction or sentence, none of which have been found to have merit. He also has sought relief in the First District Court of Appeal at least four times and review in the Florida Supreme Court another four times. Of the filings in this court, nine have been challenges to the legality of his sentence.

This, appellant’s nineteenth filing, is another sentencing challenge. More than a quarter century after our 1978 remand, appellant alleges that either he or counsel was entitled to be present when the trial court re-sentenced him to life imprisonment. This argument has been raised at least twice previously and is hopelessly and legally barred from successive review. State v. McBride, 848 So.2d 287, 291 (Fla.2003). Moreover, such a claim was raisa-ble only via a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 and is therefore timebarred. See Bru- nache v. State, 901 So.2d 412, 413 (Fla. 3d DCA 2005); Fla. Bar Re Amendment to Rules of Crim. P. (Rule 3.850), 460 So.2d 907 (Fla.1984).

It is abundantly clear that appellant has been serially abusing the post-conviction process. See Johnson v. State, 915 So.2d 682, 684 (Fla. 3d DCA 2005) (noting “we also are aware of the not infrequent abuse by post-conviction litigants of this process and the concomitant misapplication and waste of limited judicial resources which might otherwise be expended on more meritorious claims and issues”). See also Henderson v. State, 903 So.2d 999, 1000 (Fla. 5th DCA 2005) (internal quotations omitted). After careful consideration, we find that appellant’s present filing, in context of his litigation history, constitutes a frivolous appeal or proceeding pursuant to sections 944.279(1), Florida Statutes (2005), and 944.28(2)(a), Florida Statutes (2005). See, e.g., Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

We therefore (1) affirm the decision of the trial court on the merits of the motion brought by appellant before that court, (2) direct the clerk of this court to refuse to accept for filing in this court any further appeals, pleadings, motions, petitions or other papers relating to appellant’s conviction and sentence in case number 75-8264 unless they are filed by a member in good standing of The Florida Bar, and (3) direct the Clerk to forward a certified copy of this opinion to the appropriate institution for consideration by that institution of disciplinary measures against appellant pursuant to sections 944.279(1), Florida Statutes (2005), and 944.28(2)(a), Florida Statutes (2005), for the filing of a frivolous appeal.

Affirmed.

        . Guridi v. State, 930 So.2d 627 (Fla. 3d DCA 2006) (table); Guridi v. State, 923 So.2d 507 (Fla. 3d DCA 2006) (table); Guridi v. State, 910 So.2d 273 (Fla. 3d DCA 2005) (table); Guridi v. State, 907 So.2d 537 (Fla. 3d DCA 2005) (table); Guridi v. State, 860 So.2d 427 (Fla. 3d DCA 2003) (table); Guridi v. State, 857 So.2d 887 (Fla. 3d DCA 2003) (table); Guridi v. State, 854 So.2d 201 (Fla. 3d DCA 2003) (table); Guridi v. State, Case No. 031652 (Fla. 3d DCA Sept. 3, 2003); Guridi v. State, 831 So.2d 188 (Fla. 3d DCA 2002) (table); Guridi v. Moore, 816 So.2d 630 (Fla. 3d DCA 2002) (table); Guridi v. State, 725 So.2d 1126 (Fla. 3d DCA 1998) (table); Guridi v. Ruvin, 684 So.2d 1366 (Fla. 3d DCA 1996); Guridi v. State, 638 So.2d 71 (Fla. 3d DCA 1994) (table); Guridi v. State, 605 So.2d 83 (Fla. 3d DCA 1992) (table); Guridi v. State, 584 So.2d 236 (Fla. 3d DCA 1991); Guridi v. Levine, 580 So.2d 762 (Fla. 3d DCA 1991) (table); Guridi v. State, 368 So.2d 959 (Fla. 3d DCA 1979).

      . Guridi v. Fla. Parole Comm’n, 928 So.2d 340 (Fla. 1st DCA 2006) (table); Guridi v. David, 924 So.2d 814 (Fla. 1st DCA 2006) (table); Guridi v. Fla. Parole Comm’n, 871 So.2d 879 (Fla. 1st DCA 2004) (table); Guridi v. Singletary, 604 So.2d 490 (Fla. 1st DCA 1992) (table).

      . Guridi v. State, 839 So.2d 698 (Fla.2003); Guridi v. Third Dist. Court of Appeal, 694 So.2d 738 (Fla.1997); Guridi v. State, 589 So.2d 290 (Fla.1991); Guridi v. Dugger, 536 So.2d 244 (Fla.1988).


author: CORTINAS, Judge. RAMIREZ, J.

text:
    Marcelino REGALADO, Maria C. Regalado and CareMed Network, Inc., Appellants, v. Patricia CABEZAS and Rosa de la Torre, Appellees.
    Nos. 3D06-1569, 3D06-1160.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Rehearing and Rehearing En Banc Denied July 10, 2007.

      Anania Bandklayder Blackwell Baum-garten Torricella & Stein and Roberto A. Torricella, Jr., Miami, for appellants.
    Arnaldo Velez, Coral Gables, for appel-lees.
    Before RAMIREZ, WELLS, and CORTINAS, JJ.
   CORTINAS, Judge.

Marcelino Regalado (“Marcelino”), Maria Regalado (“Maria”), and CareMed Network, Inc. (“CareMed”) (collectively “Defendants”), appeal two final judgments entered in favor of Rosa de la Torre (“Torre”) and Patricia Cabezas (“Cabe-zas”) (collectively “Plaintiffs”), following the denial of a portion of the Defendants’ amended motions to vacate, change or modify an arbitration award. We affirm.

CareMed is a management service organization that maintains a health care management contract with Humana. The Plaintiffs filed a shareholders derivative action (the “Derivative Case”) against Maria and Marcelino, who are also shareholders and directors of CareMed, and Car-eMed. Specifically, the Plaintiffs claimed that Marcelino diverted corporate funds to his wife, Maria, and to others with no business purpose. The parties stipulated to resolve this dispute through arbitration. Thereafter, the Plaintiffs filed a second lawsuit (the “Distribution Case”) against the Defendants. In the Distribution Case, the Plaintiffs sought to compel the Defendants to declare and distribute profits. The parties also stipulated to resolve this dispute through arbitration.

Subsequently, an arbitration proceeding was held, wherein the parties presented their evidence and claims. Several witnesses testified at the hearings, including Torre, Cabezas, Marcelino, and Mr. Nac-carato, an accountant appointed by the arbitrator to examine CareMed’s books and records. At the close of the hearings, the parties agreed to provide the arbitrator with a post-arbitration memorandum. Several months later, the arbitrator entered an award, which included some of the proposed findings by the Plaintiffs in their post-arbitration memorandum. Specifically, the arbitrator found that, despite asserting that income had decreased, Marcelino paid himself $81,088.30 and temporarily increased payments to his wife, and segregated $183,400 in an account at Bank United with no apparent business purpose. The arbitrator also found that a total of $264,488.30 had been unjustly and in bad faith diverted from the revenues produced by the Humana contract. Based on these findings, the arbitrator entered an award in favor of the Plaintiffs in both eases. In the Distribution Case, Torre and Cabezas were entitled to recover from CareMed and Marcelino, jointly and severally, the sum of $52,897.66. In the Derivative Case, the arbitrator found that Marcelino improperly diverted $382,499.03, which should have been distributed to shareholders, and that Torre and Cabezas individually should recover twenty percent of that amount.

The Defendants subsequently filed a motion to vacate, change or modify the arbitration award in the Distribution Case, alleging that the award had been procured by fraud and undue means and that the arbitrator had exceeded his powers and scope of jurisdiction. The trial court denied in part the Defendants’ motion and, thereafter, entered a final judgment in favor of the Plaintiffs. The Defendants also filed a motion to vacate or modify the award in the Derivative Case, alleging that because this was a derivative action, Car-eMed, and not the individual shareholders, was entitled to relief. At the hearing, the trial judge withheld ruling and, instead, returned the matter to the arbitrator to clarify why he did not award repayment of the challenged funds to CareMed. The parties appeared before the arbitrator who stated that he did not return the funds to CareMed because it would be tantamount to returning the money to Marcelino. Thereafter, the trial judge entered a final judgment in favor of the Plaintiffs in the Derivative Case.

In reviewing an order granting or denying a motion to vacate an arbitration award, we review findings of fact for competent substantial evidence and questions of law de novo. Marr v. Webb, 930 So.2d 734, 737 (Fla. 3d DCA 2006)(citing LeNeve v. Via S. Fla., L.L.C., 908 So.2d 530, 534 (Fla. 4th DCA 2005)). However, when reviewing whether an arbitrator properly granted an award, our review is “very limited, with a high degree of conclusiveness attaching to [the] arbitration award.” Id. (citing Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1019 (Fla. 4th DCA 1999) (quoting Applewhite v. Sheen Fin. Res., Inc., 608 So.2d 80, 83 (Fla. 4th DCA 1992))). The narrow scope of our review is necessary to ensure that arbitration does not become “merely an added preliminary step to judicial resolution rather than a true alternative.” Id. (citing Charbonneau, 727 So.2d at 1019).

To vacate an arbitration award, a party must establish one of the five grounds enumerated in section 682.13(1), Florida Statutes (2005). Id. Section 682.13(1) provides, in relevant part:

(1) Upon application of a party, the court shall vacate an award when:
(a) The award was procured by corruption, fraud, or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
(c) The arbitrators or the umpire in the course of his or her jurisdiction exceeded their powers.
(d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefore or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising an objection.

§ 682.13, Fla. Stat. (2005)(emphasis added). Neither a trial court nor this court can vacate an award unless the party moving to vacate proves one of the five statutory grounds. Marr, 930 So.2d at 737 (citing Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989)). Here, we address subsection (a) to determine whether the award was procured by fraud or undue means and subsection (c) to determine whether the arbitrator exceeded his powers in entering the award.

The Defendants contend that in the Distribution Case the Plaintiffs procured the award by fraud and undue means by including in their post-arbitration memorandum false findings of fact and proposed awards that were not supported by the evidence. The Defendants contend that the Plaintiffs falsely proposed a finding that, in January 2004, Marcelino segregated $183,400 in a separate bank account at Bank United without an apparent business purpose and that Marcelino improperly paid himself a salary in the amount of $81,088.30. The Defendants also argue that because their motion to vacate was based on allegations of fraud, the trial court erroneously denied their motion without an evidentiary hearing pursuant to Florida Rule of Civil Procedure 1.540(b)(3). We disagree.

The language found in section 682.13(l)(a) is almost identical to the language in 9 U.S.C. § 10(a)(1) (2002). Davenport v. Dimitrijevic, 857 So.2d 957, 961 (Fla. 4th DCA 2003). Thus, it is proper to look to federal law to interpret the language in section 682.13(l)(a). Id. Several federal circuits have found that a party seeking to vacate an award by alleging that the award was procured “by corruption, fraud[,] or other undue means” must (1) establish the fraud by clear and convincing evidence, (2) demonstrate that the fraud was not discoverable by the exercise of due diligence before or during the arbitration hearing, and (3) demonstrate that the fraud was materially related to an issue in the arbitration. See, e.g., Int’l Bhd. of Teamsters, Local 519 v. United Parcel Serv., Inc., 335 F.3d 497, 503 (6th Cir.2003); Gingiss Int’l, Inc. v. Bormet, 58 F.3d 328, 333 (7th Cir.1995); Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1383 (11th Cir.1988). A claim of fraud when seeking to vacate an award pursuant to section 682.13(l)(a) is “not an opportunity to obtain a second bite of the apple to correct a party’s deficiencies of proof at an arbitration.” Davenport, 857 So.2d at 962 (citing Shearson Hayden Stone, Inc. v. Liang, 653 F.2d 310, 313 (7th Cir.1981)(stating that 9 U.S.C. § 10(a)(1) does not authorize a court to vacate an arbitration award for new evidence)).

In this case, the Defendants’ attack on the arbitration award fails to satisfy the requirements to establish fraud under section 682.13(l)(a). The Defendants contend that the $183,400 figure arose briefly from a series of ambiguous questions during Marcelino’s cross-examination and that CareMed’s bank records show that $183,400 was never segregated in a bank account without an apparent business purpose. Clearly, these allegations are an attack on the sufficiency of proof and the weight of the evidence at the arbitration proceeding, rather than allegations constituting fraud within the meaning of section 682.13(l)(a). Contrary to the Defendants’ contention, the trial court was actually prohibited from combing through the record of the proceeding to determine whether the arbitrator committed errors of fact or law in making the decision. Cassedy v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 751 So.2d 143, 150 (Fla. 1st DCA 2000) (citations omitted).

The Defendants’ motion did not set out a prima facie case for fraud under section 682.13(l)(a) and, therefore, an evidentiary hearing pursuant to Florida Rule of Civil Procedure 1.540(b)(3) was not required. See Davenport, 857 So.2d at 961 (finding that an affidavit filed with a motion to vacate that showed a witness may have perjured himself at the arbitration proceeding was insufficient to trigger an evi-dentiary hearing); Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994)(finding that the husband’s motion did not state facts that constituted fraud and, instead, was an attempt to rehash matters fully explored at trial). Rule 1.540(b)(3) authorizes a court to provide relief from a final judgment for the reason of fraud' and requires the trial court to conduct an evidentiary hearing on the motion. Davenport, 857 So.2d at 963 (citing Flemenbaum, 636 So.2d at 580). However, a movant is entitled to an evidentiary hearing only when the motion clearly specifies the essential facts of the fraud and explains why the fraud would entitle the movant to relief from the final judgment. Id. (citing Flemenbaum, 636 So.2d at 580). Here, the Defendants’ motion was. facially deficient because allegations that the Plaintiffs’ proposed findings and awards were not supported by either the testimony or the documents adduced at the arbitration hearings are not factors which constitute fraud. As the Flemenbaum court noted, often the term “fraud” is loosely used by a party that is displeased with the conduct of the opposing party or simply unhappy with the results. Flemenbaum, 636 So.2d at 580. Thus, we find that no evidentiary hearing was required on the rule 1.540(b)(3) motion.

The Defendants contend that, in the Derivative Case, the, arbitrator exceeded his powers and the scope of his jurisdiction under section 682.13(l)(e) by awarding a portion of the challenged funds to Torre and Cabezas individually, instead of Car-eMed. Specifically, the Defendants’ claim that because this was a derivative action, the only issue arbitrated was whether certain payments should be refunded to Car-eMed.

However, we find that the arbitrator did not exceed his powers, so as to support vacating the award under section 682.13(l)(c). “An arbitrator exceeds her power when she ‘goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration.’ ” LeNeve, 908 So.2d at 534 (quoting Schnurmacher, 542 So.2d at 1329). Here, the parties arbitrated the issue of whether Marcelino had made improper payments that should be returned to CareMed. However, we held in Marr that “the fact that the relief granted is such that it could not or would not be granted by a court of law or equity is not a ground for vacating or modifying the award.” Marr, 930 So.2d at 738 (quoting Prudential-Bache Secs., Inc. v. Shuman, 483 So.2d 888, 889 (Fla. 3d DCA 1986)). Ordinarily, in a shareholder’s derivative action, the court provides the corporate entity relief because it is the real party interest and the shareholders are merely redressing rights of action that belong to the corporation. See Timko v. Triarsi, 898 So.2d 89, 90 (Fla. 5th DCA 2005). Nevertheless, the fact that, in this case, the arbitrator found that Marcelino made improper payments but awarded Torre and Cabezas relief, does not provide a ground for vacating the award under section 682.13. See Marr, 930 So.2d at 738. Notably, during the hearing on the Defendants’ motion to vacate the award, the trial judge even sent the issue back to the arbitrator for clarification. The arbitrator explained that he awarded the challenged funds to the individual shareholders because he found that returning the funds to CareMed would give Marcelino the opportunity to misappropriate the funds again. As we previously stated, the arbitrator is the “sole judge of the evidence ... and we will not disturb [his] findings on appeal.” Id. at 739. Thus, we find no merit in the Defendants’ claim that the arbitrator exceeded his powers by awarding the individual shareholders relief because the fact that the arbitrator awarded relief that would not ordinarily be granted by a court of law is not a basis under section 682.13 for vacating the award. Id. at 738.

Because the Defendants failed to prove any of the five statutory grounds for vacating an arbitration award under section 682.13, we affirm both final judgments entered in the Plaintiffs’ favor.

Affirmed.

RAMIREZ, J.

(concurring).

As appellees’ counsel stated in oral argument, “an arbitrator has the right to be arbitrary.” That is precisely what occurred in this case. But as the majority has eloquently explained, our hands are tied. Appellate courts have frequently stated a “policy in favor of arbitration proceedings and the expeditious resolution of cases through such proceedings.” Cassedy v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 751 So.2d 143, 150 (Fla. 1st DCA 2000); see also KFC Nat’l Mgmt. Co. v. Beauregard, 739 So.2d 630, 631 (Fla. 5th DCA 1999) (“Public policy favors arbitration as an efficient means of settling disputes, because it avoids the delays and expenses of litigation.”). This case offers a stark contrast to this policy.

The first lawsuit was filed on July 28, 2003; the second on August 3, 2004; and the third on September 8, 2004. The parties stipulated to arbitration in January of 2005. The arbitrator appointed a forensic accounting firm which did not support any of the plaintiffs’ complaints. The arbitrator conducted a hearing on May 11 and 12, 2005, but did not sign the award until December 26, 2005, seven and a half months after hearing the evidence. The orders under appeal were entered on April 27, 2006. It does not seem that the parties avoided “the delays and expenses of litigation.” They did, however, gain arbitrariness. The evidence supporting the arbitrator’s award was as flimsy as rice paper and as steady as the flickering of a butterfly. '

      . The trial judge modified the portion of the arbitration award that imposed personal liability on Marcelino and found that CareMed was the only party liable for the award in the Distribution Case.

      . The Defendants’ claim that the arbitrator conducted the hearing in contravention of section 682.06(2), Florida Statutes (2005), which requires the parties to be heard, present evidence, and cross-examine witnesses, is without merit. It is evident from the record that the Defendants were afforded ample opportunity at the hearings to present their case and to cross-examine all of the witnesses who testified. After reviewing the record, we find that the hearings were held in accordance with section 682.06 and the Defendants' rights were not substantially prejudiced.

      . 9 U.S.C. § 10(a)(1) states that a federal district court “may make an order” vacating an arbitration award "where the award was procured by corruption, fraud, or undue means.”