text:
    THE FLORIDA BAR, Complainant, v. Andrew James O’CONNOR, Respondent.
    No. SC03-1738.
    Supreme Court of Florida.
    Oct. 19, 2006.
    Rehearing Denied Dec. 13, 2006.

      John F. Harkness, Jr., Executive Director, Kenneth L. Marvin, Director of Lawyer Regulation, Arne Carl Vanstrum, Bar Counsel, The Florida Bar, Tallahassee, FL, and Paul H. Amundsen, Chair, Second Judicial Circuit Grievance Committee, Tallahassee, FL, for Complainant.

      Andrew James O’Connor, Pro se, Santa Fe, NM, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical misconduct by Andrew James O’Connor, an inactive member of The Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

Procedural Background

The Florida Bar filed a complaint charging O’Connor with violating Rules Regulating the Florida Bar 4-3.3(a)(l) (making a false statement of material fact or law to a tribunal); 4-8.1(a) (knowingly making a false statement of material fact); 4-8.4(a) (violating the Rules of Professional Conduct); and 4r-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). These charges arose after O’Connor filed an application for a limited law license with the Supreme Court of New Mexico. Following a hearing, the referee issued findings of fact, conclusions of guilt, and a recommendation of discipline. The referee found that O’Connor, who is currently in the status of being inactive for incapacity not related to misconduct, knowingly made a material misrepresentation to the Supreme Court of New Mexico that he was a member in good standing of The Florida Bar and violated the rules with which he had been charged. The referee recommended disbarment. O’Connor seeks review here.

We approve the referee’s findings of fact and guilt, but disapprove the recommendation that O’Connor be disbarred. Instead, in our view this matter requires the imposition of a one-year period of disqualification to petition for reinstatement to membership in good standing. This one-year period shall commence on the date this opinion becomes final. After the expiration of one year, O’Connor may petition for reinstatement pursuant to the terms and conditions of Rule Regulating the Florida Bar 3-7.10 and as set forth more fully below.

Factual Background

The underlying facts, as found by the referee and as established by the documents introduced into evidence and O’Con-nor’s testimony during the hearing, established the following sequence of events: O’Connor was admitted to The Florida Bar on November 11, 1990. On April 21,1992, the Bar petitioned the Court to suspend O’Connor on an emergency basis. The Court granted the petition and suspended O’Connor on April 30, 1992. The order of this Court stated O’Connor was suspended “until further order of this Court.”

That same day, O’Connor was involved in an automobile accident which allegedly incapacitated him both mentally and physically. On June 24, 1992, the Court granted the Bar an extension of time in which to file the formal complaint against O’Connor. The Court’s order directed the Bar to file the complaint within sixty days of notification that O’Connor was able to participate in the proceedings.

Over one year later, on October 14,1993, O’Connor, through his attorney, filed a Notification of Ability to Participate and a Motion for Dissolution of Emergency Suspension. The Court denied the motion to dissolve the suspension on November 17, 1993. One month later, on December 15, 1993, O’Connor, again through his attorney, filed a Petition for Placement on the Inactive List for Incapacity Not Related to Misconduct, which the Court granted on January 27,1994.

The Bar sent O’Connor a copy of The Florida Bar Reinstatement Manual on February 28, 1995, apparently in response to an inquiry by O’Connor. On December 31, 1997, O’Connor contacted the Bar with regard to a return to active status. In October 2001, O’Connor filed a Petition for Removal of Inactive Status with the Bar. The Bar responded on October 31, 2001, by returning his petition and his check, along with another copy of The Florida Bar Reinstatement Manual. The cover letter advised that he was required to petition the Court for reinstatement pursuant to rule 3-7.10 and provided him the name and phone number of the person to contact if any questions arose. The first sentence in the sample Petition for Reinstatement included in the manual provided to O’Con-nor states: “(Respondent) ... respectfully files this petition for reinstatement to membership in good standing in The Florida Bar.” O’Connor never petitioned for reinstatement under rule 3-7.10.

O’Connor was apparently hired as an assistant public defender in New Mexico in July 2002. At that time there was no change in his Florida inactive status. On January 16, 2003, O’Connor filed an application for a limited law license -with the Supreme Court of New Mexico. O’Con-nor’s application stated that a certificate of good standing in Florida was attached. O’Connor attached only a copy of his Florida Bar card, front and back, which showed his status as “inactive,” but had not requested nor did he attach a certificate of good standing. The Supreme Court of New Mexico issued a limited license to O’Connor based on his representation that a certificate of good standing was attached, but revoked the license almost immediately when the discrepancy was discovered. The Supreme Court of New Mexico then notified The Florida Bar, which instituted these proceedings.

The referee found O’Connor knew he was not in good standing with The Florida Bar when he applied for a limited license in New Mexico, which conduct violated the rules set forth in the Bar’s complaint. The referee ultimately recommended that O’Connor be disbarred.

Analysis

O’Connor petitions for review of the referee’s findings of fact, conclusions of guilt, and recommendation of discipline. O’Con-nor argues that he was unaware his inactive status designation had the effect of placing him in the category of being “not in good standing” and, thus, he did not knowingly attempt to mislead the Supreme Court of New Mexico in his application for a limited license. This argument is, essentially, a challenge to the sufficiency of the evidence to support the referee’s findings that O’Connor knew that he was not a member in good standing when he filed the application and that O’Connor’s testimony to the contrary was not credible.

Findings of Fact

Finding facts and resolving conflicts in the evidence is the responsibility of the referee. See Fla. Bar v. Hooper, 509 So.2d 289, 290-91 (Fla.1987). To successfully challenge a referee’s findings before this Court, a respondent must demonstrate that there is no evidence in the record to support the referee’s findings or that the record evidence clearly contradicts the conclusions. See, e.g., Fla. Bar v. Elster, 770 So.2d 1184, 1185 (Fla.2000); Fla. Bar v. Carnearte, 733 So.2d 975, 977 (Fla.1999). The Court defers to the referee’s assessment and resolution of conflicting evidence because the referee is in the best position to judge the credibility of the witnesses. See Fla. Bar v. Batista, 846 So.2d 479 (Fla.2003).

O’Connor has failed to establish that there is no evidence in the record to support the referee’s findings or that the record evidence clearly contradicts the conclusions. He could not do so because there is competent, substantial evidence that O’Connor knew he was not in good standing. O’Connor communicated with the Bar on at least three occasions between the time he became inactive and the time he filed an application with the Supreme Court of New Mexico. On two of those occasions, the Bar provided him a manual that specifically informed him of the steps required to be returned to membership in good standing. The first sentence of the sample petition included in the manual he received is abundantly clear that only active members are members in good standing. Additionally, when the Bar denied his petition for reinstatement and returned his check, O’Connor was officially notified that there were additional procedures required if he desired a change in status to be returned to the category of a member in good standing.

O’Connor maintains that it was unfair for the Bar to charge him with ethical misconduct because the Bar never directly informed him that he was not “in good standing.” In conjunction with that, he argues that the Rules Regulating the Florida Bar are too vague and confusing to have provided him notice that his inactive status resulted in the status of “not in good standing.” We disagree with and reject both of these arguments.

Rule 1-3.2, titled “Membership classifications,” provides only three classifications of Bar members — members in good standing, conditionally admitted members, and inactive members. These classifications are clear and unambiguous. Subdivision (a) defines “members in good standing” as “only those persons licensed to practice law in Florida who have paid annual membership fees or dues for the current year and who are not retired, resigned, delinquent, inactive, or suspended members.” (Emphasis added.) O’Connor was inactive and had not paid annual membership fees or dues for the current year at the time he applied to the Supreme Court of New Mexico. He clearly did not fall within that membership “in good standing” classification, and O’Connor was most certainly aware of the underlying facts which produced that result.

Subdivision (c) defines “inactive” as “only those members who have properly elected to be classified as inactive in the manner elsewhere provided.” O’Connor petitioned the Court to be placed on the inactive list for incapacity not related to misconduct, which was granted. He “properly elected to be classified as inactive.” His argument that he did not know that the “inactive” category applied to him because he was “inactive for incapacity not related to misconduct” and not just “inactive” is not credible; the referee was justified in disbelieving him.

We next address O’Connor’s argument that the referee inappropriately allowed the Bar to introduce evidence of his 1992 emergency suspension at the hearing. We review a referee’s actions regarding the admissibility of evidence for abuse of discretion. See Fla. Bar v. Rotstein, 835 So.2d 241, 244 (Fla.2002). Applying that standard to the instant case, we conclude the referee did not abuse his discretion in allowing the Bar to introduce evidence of his emergency suspension. Previous disciplinary sanctions against a respondent are always relevant in Bar disciplinary proceedings because they are factors to be considered by the referee in making a recommendation of discipline to the Court. See Fla. Stds. Imposing Law. Sanes. 3.0, 8.0, 9.1, 9.21, 9.22(a)(c), 9.31, 9.32(a), (m). Although the events underlying O’Connor’s emergency suspension were never the subject of a formal hearing and, thus, never resulted in factual or guilt findings or the imposition of discipline, it was only O’Connor’s petition to be placed on inactive status which caused those proceedings to never occur. This is far different than a disciplinary proceeding which has proceeded to its conclusion and resulted in a finding of no misconduct. Furthermore, the fact that he was under emergency suspension in Florida immediately before he chose to become inactive should have given O’Connor more reason and incentive to fully clarify his classification in Florida before he represented himself to be a member in good standing to the Supreme Court of New Mexico.

We reject O’Connor’s argument that he was no longer under emergency suspension when he became inactive because more than sixty days had elapsed after he notified the Bar that he had recovered sufficiently to participate in the disciplinary proceedings. Simultaneously with his notice, O’Connor filed a motion to dissolve his emergency suspension. Under rule 3-5.2(e)(1), the filing of the motion to dissolve operated as an automatic stay of the proceedings and time limits. Rule 3-5.2(e)(4) provided the Bar sixty days after the Court denied the motion to dissolve in which to file the formal complaint, if the complaint was not filed prior to the motion. The sixtieth day after the Court denied O’Connor’s motion to dissolve was January 16, 1994. This date fell between the date O’Connor filed his petition to be placed on the inactive list and the date the Court granted his petition.

The issue, then, became the status of O’Connor’s emergency suspension when the deadline passed without the Bar filing a formal complaint. This is an issue of first impression. We hold the suspension was not automatically dissolved when the sixtieth day passed. The sixty-day time limit in rule 3-5.2(d) was not self-executing. The passing of the time limit would have given O’Connor grounds for a motion to dismiss, but would not have dissolved the emergency suspension.

Several factors lead us to arrive at this conclusion. First, the applicable rule says nothing with regard to the effect of a failure by. the Bar to file a formal complaint within sixty days. Rule 3-7.11(a) provides, in pertinent part: “Except as provided herein, the time intervals required are directory only and are not jurisdictional.” Second, cases in which we have dismissed Bar disciplinary proceedings for undue delay by the Bar under rule 3-7.16 or its predecessor rules were initiated by a motion to dismiss or a motion to cease and desist. See, e.g., Fla. Bar v. Walter, 784 So.2d 1085 (Fla.2001) (dismissing Bar disciplinary proceeding where there was a seven-year interim between the alleged misconduct and the complaint); see also Murrell v. Fla. Bar, 122 So.2d 169 (Fla.1960) (granting attorney’s motion to cease and desist for five-year delay); cf. Fla. Bar v. Marks, 492 So.2d 1327, 1328 (Fla.1986) (denying motion to dismiss and holding two-year delay was not unreasonable). As the applicable time period under rule 3-7.16 is six years and, yet, is not self-executing, it would be inconsistent and illogical to make a sixty-day time limit self-executing, especially where the attorney misconduct alleged is egregious enough to warrant emergency suspension.

Finally, Florida Rule of Civil Procedure 1.420(e), which governs dismissal of civil claims for failure to prosecute, has been held to require some affirmative action and to not be self-executing. See, e.g., Pollock v. Pollack, 116 So.2d 761 (Fla.1959); Mitchell v. Coker Fuel, Inc., 511 So.2d 344 (Fla. 2d DCA 1987); City of Miami v. Katz, 498 So.2d 635 (Fla. 3d DCA 1986); Peterzell v. James Urbach, M.D., P.A., 497 So.2d 921 (Fla. 5th DCA 1986); Barnes v. Escambia County Employees Credit Union, 488 So.2d 879 (Fla. 1st DCA 1986); Fla. E. Coast Ry. Co. v. Russell, 398 So.2d 949 (Fla. 4th DCA 1981).

However, we cannot agree with the Bar that O’Connor is still under emergency suspension, although inactive. Although he was still under emergency suspension after the sixty-day deadline passed, he became inactive due to incapacity not related to misconduct on January 27, 1994, when this Court granted his petition to become inactive. The change to inactive status dissolved the suspension.

Recommendation of Discipline

The referee recommended that O’Connor be disbarred. Based on this record we understand the difficult circumstances with which the referee was faced, but we find that we cannot approve this recommendation of the most severe sanction. Unlike the referee’s findings of fact and conclusions as to guilt, the determination of the appropriate discipline is peculiarly within the province of this Court’s authority. See Fla. Bar v. Miller, 863 So.2d 231, 235 (Fla.2003); Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, 15, Fla. Const. Disbarment is an extreme form of discipline and is reserved for the most egregious misconduct. See Fla. Bar v. Summers, 728 So.2d 739, 742 (Fla.1999); see also Fla. Bar v. Cox, 718 So.2d 788, 794 (Fla.1998) (holding disbarment is appropriate where there is a pattern of misconduct and a history of discipline); Fla. Bar v. Kassier, 711 So.2d 515, 517 (Fla.1998) (holding disbarment is an extreme sanction that should be imposed only in those rare cases where rehabilitation is highly improbable).

While O’Connor’s misconduct in knowingly making a material misrepresentation of fact to the Supreme Court of New Mexico is indeed very serious, there are two factual circumstances specific to this case which lead us to conclude that disbarment is too extreme here. First, O’Con-nor had very little experience in the practice of law at the time he was placed on emergency suspension. Second, he has been inactive for over a decade.

If the factual circumstances had been different, i.e., if O’Connor had been an active member of The Florida Bar at the time he made a material misrepresentation to the Supreme Court of New Mexico in an application for admission there, a one-year suspension would have been an appropriate sanction. We cannot, however, suspend O’Connor because he is not an active member. We therefore do the closest thing and impose a one-year period of disqualification instead.

Conclusion

We approve the referee’s findings of fact and conclusions of guilt. We disapprove the recommendation of disbarment and impose a one-year period of disqualification instead. After one year from the date this decision becomes final, O’Connor may petition for reinstatement to membership in good standing in The Florida Bar under rule 3-7.10. As outlined in that rule, O’Connor must file the original and one copy of a verified petition for reinstatement with this Court and serve a copy of the petition on Bar Staff Counsel. The petition shall include the information required by rule. O’Connor shall attach to the petition certified copies of all criminal and civil judgments; disciplinary judgments; income tax returns together with consents to secure original returns; financial statements; statements of restitution of any funds that were the subject matter of any disciplinary proceedings; copies of all pleadings in the matter leading to his placement on the inactive list and all such other documents as may be reasonably required to demonstrate the character and fitness of the petitioner to resume the practice of law. O’Connor shall further attach proof that he has paid a deposit to The Florida Bar in such amount as the Board of Governors shall prescribe to ensure payment of reasonable costs of the proceedings as set forth in the rule at the time he files the petition. He shall comply with all rules in effect at that time.

At any future hearing before the referee on reinstatement, conducted when and if O’Connor petitions for reinstatement, O’Connor shall bear the burden of proving his rehabilitation by clear and convincing evidence. His proof of rehabilitation must address both the mental and physical disabilities from which he was suffering at the time of his petition to be placed on inactive status for incapacity not related to misconduct and his misconduct in this case. O’Connor is urged to thoroughly familiarize himself with rule 3-7.10 and all other applicable rules prior to initiating reinstatement proceedings.

As O’Connor is currently inactive, the one-year period of disqualification from reinstatement is effective immediately on the date this opinion becomes final.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Andrew James O’Connor in the amount of $2,123.35, for which sum let execution issue.

It is so ordered.

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

QUINCE, J., concurs in part and dissents in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Connie Whigum HAMILTON, Petitioner, v. STATE of Florida, et al., Respondents.
    No. SC05-1219.
    Supreme Court of Florida.
    Nov. 16, 2006.
    Rehearing Denied Dec. 13, 2006.

      Connie Whigum Hamilton, pro se, Milton, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

Connie Whigum Hamilton has filed three separate actions in this Court. Hamilton v. State, 932 So.2d 192 (Fla. 2006) (petition for writ of prohibition dismissed); Hamilton v. State, 932 So.2d 192 (Fla.2006) (petition for review dismissed); Hamilton v. State, 928 So.2d 335 (Fla. 2006) (petition for writ of mandamus dismissed). In her three cases, Hamilton has submitted over 130 filings alleging confusing claims of conspiratorial victimization by state courts and officials. Each case has been dismissed, and each motion, supplement, or other request for relief has been dismissed, denied, or stricken. In two of her cases, Hamilton has continued to submit filings even though the case is closed, and Hamilton continues to submit frivolous filings to this Court. By order dated September 18, 2006, this Court expressly retained jurisdiction over this case to pursue possible sanctions against Hamilton. On October 19, 2006, Hamilton was ordered to show cause why this Court should not find that she has abused the legal system and impose upon her a sanction for such abuse, including but not limited to directing the Clerk of this Court to reject for filing any future pleadings, motions, letters, documents, or other filings submitted to this Court by her unless signed by a member of The Florida Bar.

Hamilton has responded to this Court’s order to show cause and again offers that she has been victimized by officers of this state. Additionally, Hamilton boasts that she has “the right to file as many documents as necessary” until this Court requests that she refrain. Hamilton has failed to show cause why she should not be sanctioned. In fact, she has effectively admitted that she will continue to abuse the processes of this Court until we ask that she stop. We now sanction Hamilton.

This Court and the United States Supreme Court have, when deemed necessary, exercised the inherent judicial authority to sanction an abusive litigant. See, e.g., Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992); In re Sindram, 498 U.S. 177, 111 S.Ct. 596, 112 L.Ed.2d 599 (1991); In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989); May v. Barthet, 934 So.2d 1184 (Fla.2006); Sibley v. Florida Judicial Qualifications Comm’n, 31 Fla. L. Weekly S268, — So.2d -, 2006 WL 1096636 (Fla. Apr. 27, 2006), cert. denied, 75 U.S.L.W. 3106, — U.S. -, 127 S.Ct. 584, 166 L.Ed.2d 430 (2006); Armstead v. State, 817 So.2d 841 (Fla.2002); Peterson v. State, 817 So.2d 838 (Fla.2002); Jackson v. Fla. Dep’t of Corr., 790 So.2d 398 (Fla.2001); Rivera v. State, 728 So.2d 1165 (Fla.1998); Attwood v. Singletary, 661 So.2d 1216 (Fla.1995). One justification for such a sanction lies in the protection of the rights of others to timely review of their legitimate filings. See Martin, 506 U.S. at 3, 113 S.Ct. 397 (imposing sanction where petitioner’s filings for certiorari review had a deleterious effect on the Court’s fair allocation of judicial resources); see also Peterson, 817 So.2d at 840 (“This Court has a responsibility to ensure every citizen’s right of access to the courts _A limitation on [the petitioner’s] ability to file would further the constitutional right to access for other litigants because it would permit this Court to devote its finite resources to the consideration of legitimate claims filed by others.”). As noted by the United States Supreme Court, “[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. at 184, 109 S.Ct. 993.

Many of the Court’s sanction cases involve situations in which a petitioner has filed numerous frivolous cases. See, e.g., May, 934 So.2d at 1186 (eleven cases); Sibley, 31 Fla. L. Weekly at S268, — So.2d at-(nine cases); Armstead, 817 So.2d at 842 (twenty cases). In Jackson v. Florida Department of Corrections, the Court noted that the petitioner, Douglas Jackson, had filed thirteen petitions in this Court, and it specifically found that, like Hamilton, Jackson also filed numerous motions and supplements in those cases:

[S]eldom have we come across a petitioner as litigious and frivolous as Jackson. Not only does Jackson file excessive numbers of petitions, but in each petition he files numerous motions and supplements throughout the pendency of each case. More than once this Court has had to expedite a final ruling in one of Jackson’s cases so that it could be disposed of before another of the almost daily motions or amendments arrived. It is not uncommon for this Court to have to rule on the petition and a dozen or so motions — then, after disposition, another dozen or so motions must be ruled on before the case finally becomes final. While this case was pending, Jackson filed nearly a dozen more petitions in this Court, and even after Jackson had responded to the order to show cause and had filed his motion for rehearing, he continued to file a multitude of irrelevant motions in this case and his other pending cases. We finally had to issue an order instructing him not to file any more motions until the prior matters had been ruled upon so that the file could remain with the justices long enough for the analysis to be done.

790 So.2d at 401. As a result of his numerous filings, Jackson was barred from further pro se filings in this Court. Id. at 402.

Hamilton has only filed three cases in this Court. However, since February 2005, Hamilton has submitted over 130 frivolous filings. Although not every filing is in the form of a motion or request for relief, the sheer volume of filings in these cases of things impertinent to their outcome has created a heavy burden for this Court, which has to review each and every filing. This type of abuse brings the adjudication process to a halt and prevents the Court from considering the legitimate claims of other petitioners. Moreover, not once has Hamilton sought leave to file any of her documents. In fact, all of Hamilton’s cases were dismissed because she failed to comply with this Court’s orders.

Hence, upon a thorough review of Hamilton’s filings in this Court, we conclude that she has abused the processes of the Court and has hindered the ability of this Court to resolve those matters that are properly before the Court. We conclude that sanctions are merited on this record. Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject for filing any future pleadings, petitions, motions, documents or other filings submitted by Connie Whigum Hamilton, unless signed by a member in good standing of The Florida Bar. Under the sanction herein imposed, Hamilton is not wholesale being denied access to the courts. She may petition the Court through the assistance of counsel, whenever such counsel determines that the proceeding may have merit and can be filed in good faith. However, Hamilton’s frivolous and abusive filings must immediately come to an end. Further, if Connie Whigum Hamilton continues to abuse the processes of this Court, she may be subjected to further contempt proceedings or other appropriate sanctions.

It is so ordered.

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

      . We have been advised by our Clerk’s Office that Hamilton has repeatedly disrupted its operations to the point that court security has had to escort her out of that office so the building can be closed at 5:00 p.m. The Clerk’s Office has finite resources that it must use to promote the interests of justice, and it has been unable to accomplish its objectives as a result of Hamilton’s unnecessary consumption of its time. Such disruptions to the normal operations of the Court will not be tolerated, and Hamilton is admonished against further such behavior.


text:
    In re AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.851 AND 3.590.
    No. SC05-1165.
    Supreme Court of Florida.
    Dec. 7, 2006.
    The Honorable O.H. Eaton, Jr., Chair, Criminal Court Steering Committee, Seminole County Circuit Court Judge, Sanford, FL, for Petitioner.
    Paula S. Saunders, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, and Michael Ufferman, Attorney at Law, Tallahassee, FL, on behalf of the Florida Association of Criminal Defense Lawyers, responding with comments.
   PER CURIAM.

The Supreme Court’s Criminal Court Steering Committee (Committee) proposes amendments to Florida Rule of Criminal Procedure 3.590, Time for and Method of Making Motions; Procedure; Custody Pending Hearing, and rule 3.851, Collateral Relief After Death Sentence Has Been Imposed and Affirmed on Direct Appeal. We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

For purposes of uniformity, the Court asked the Committee to draft a proposed rule of procedure addressing the appeal of circuit court orders finding death-sentenced inmates competent to waive post-conviction proceedings and counsel. In conjunction with that referral, the Committee identified the need for several additional changes to rule 3.851. The Committee also proposes several changes to rule 3.590 that address the filing of motions for a new trial in capital cases where the death penalty is an issue. The Committee’s unanimously recommended proposals were published for comment in the October 1, 2005, edition of The Florida Bar News, and a single comment was filed. The Court reviewed the proposals, considered the comment, and made several changes to the proposed amendments to subdivision (b) of rule 3.590 and subdivision (i) of rule 3.851; the Court then submitted the modified proposals to the Committee for further consideration. The Committee filed a report proposing further amendments to those subdivisions.

After reviewing the revised proposals, we adopt the amendments, as proposed by the Committee, to subdivisions (a) and (b) of rule 3.590 and to subdivisions (a), (b), (c), (d), (e), and (f) of rule 3.851. We also adopt proposed new subdivision (i) of rule 3.851, with minor modifications. The major substantive amendments are discussed below.

AMENDMENTS

Rule 3.590, Time for and Method of Making Motions; Procedure; Custody Pending Hearing, is amended by retitling subdivision (a) to read “Time for Filing in Noncapital Cases,” and by adding new subdivision (b), Time for Filing in Capital Cases Where the Death Penalty Is an Issue. The retitling of subdivision (a) is necessitated by the addition of new subdivision (b), which sets forth the time limits and procedure for filing a motion for a new trial or in arrest of judgment in cases where the death penalty is an issue. The Committee proposed the amendment in response to a capital case, which arose in Seminole County, wherein the motion for a new trial was filed within ten days after the penalty phase was completed but not within ten days after the guilt-phase verdict was rendered. Existing rule 3.590(a) fails to address this situation, and the Committee concluded that a new provision was necessary to address the bifurcated trials that take place in capital cases. New subdivision (b) addresses this situation.

Rule 3.851(b), Appointment of Postcon-viction Counsel, which currently does not address the appointment of registry counsel, is amended to provide for the appointment of registry counsel, where appropriate, upon issuance of the mandate affirming a judgment and sentence of death on direct appeal. The Committee proposed the amendment in response to section 27.701(2), Florida Statutes (2005) (providing that “the responsibilities of the regional office of capital collateral counsel for the northern region of the state shall be met through a pilot program using only attorneys from the registry of attorneys maintained pursuant to s. 27.710”). The present amendment renders the rule consistent with the statute.

Rule 3.851(e), Contents of Motion, is amended to provide that the rule “does not authorize relief based upon claims that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.” This amendment is based on a similar provision in rule 3.850. See Fla. R.Crim. P. 3.850(c).

Finally, new rule 3.851(i), Dismissal of Postconviction Proceedings, is added to set forth a procedure whereby death-sentenced prisoners can dismiss postconviction proceedings and discharge counsel. The Committée proposed this amendment in response to the Court’s request. The Florida Association of Criminal Defense Lawyers, which opposes the amendment, argues that the Court should extend its holding in Klokoc v. State, 589 So.2d 219, 222 (Fla.1991) (holding that despite defendant’s wishes to the contrary, “counsel for appellant is directed to proceed to prosecute the appeal in a genuinely adversary manner, providing diligent advocacy of appellant’s interests”), to include postconviction proceedings. We reject this suggestion. After the decision in Klokoc was issued, the Court consistently has held that death-sentenced prisoners may waive collateral proceedings and counsel. See, e.g., Alston v. State, 894 So.2d 46 (Fla.2004) (setting forth criteria for dismissing postconviction proceedings and discharging counsel). The present amendment renders the rule consistent with the Court’s precedent in this area.

Accordingly, we amend the Florida Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes and commentary are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective January 1, 2007, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 3.590. TIME FOR AND METHOD OF MAKING MOTIONS; PROCEDURE; CUSTODY PENDING HEARING

(a) Time for Filing in Noncapital Cases. A motion for new trial or in arrest of judgment, or both, in cases in which the state does not seek the death penalty, may be made within 10 days after the rendition of the verdict or the finding of the court. A timely motion may be amended to state new grounds without leave of court prior to expiration of the 10-day period and in the discretion of the court at any other time before the motion is determined.

(b) Time for Filing in Capital Cases Where the Death Penalty Is an Issue. A motion for new trial or arrest of judgment, or both, or for a new penalty phase hearing may be made within ten days after written final judgment of conviction and sentence of life imprisonment or death is

filed. The motion may address grounds which arose in the guilt phase and the penalty phase of the trial. Separate motions for the guilt phase and the penalty phase may be filed. The motion or motions may be amended without leave of court prior to the expiration of the ten day period, and in the discretion of the court, at any other time before the motion is determined.

(b)(c) Oral Motions. When the defendant has been found guilty by a jury or by the court, the motion may be dictated into the record, if a court reporter is present, and may be argued immediately after the return of the verdict or the finding of the court. The court may immediately rule on the motion.

(e)(d) Written Motions. The motion may be in writing, filed with the clerk; it shall state the grounds on which it is based. A copy of a written motion shall be served on the prosecuting attorney. When the court sets a time for the hearing thereon, the clerk may notify counsel for the respective parties or the attorney for the defendant may serve notice of hearing on the prosecuting officer.

(d)(e) Custody Pending Motion. Until the motion is disposed of, a defendant who is not already at liberty on bail shall remain in custody and not be allowed liberty on bail unless the court on good cause shown (if the offense for which the defendant is convicted is bailable) permits the defendant to be released on bail until the motion is disposed of. If the defendant is already at liberty on bail that is deemed by the court to be good and sufficient, it may permit the defendant to continue at large on such bail until the motion for new trial is heard and disposed of.

Committee Notes
1968 Adoption. (No Change)
1972 Amendment. (No Change)
1980 Amendment. (No Change)

2006 Amendment. This amendment provides the time limitations and procedures for moving for new trial, arrest of judgment or a new penalty phase in capital cases in which the death penalty is an issue. The motion may be made within ten days after written final judgment of conviction and sentence of life imprisonment or death is filed.

RULE 3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE HAS BEEN IMPOSED AND AFFIRMED ON DIRECT APPEAL

(a) Scope. This rule shall apply to all motions and petitions for any type of post-conviction or collateral relief brought by a prisoner in state custody who has been sentenced to death and whose conviction and death sentence have been affirmed on direct appeal. It shall apply to all post-conviction motions filed on or after October 1, 200L, by prisoners who are under sentence of death. Motions pending on that date are governed by the version of this rule in effect immediately prior to that date.

(b) Appointment of Postconviction Counsel.

(1) Upon the issuance of tiie mandate affirming a judgment and sentence of death on direct appeal, the Supreme Court of Florida shall at the same time issue an order appointing the appropriate office of the Capital Collateral Regional Counsel- or directing the trial court to immediately appoint counsel from the Registry of Attorneys maintained by the Commission on Capital Cases. The name of Registry Counsel shall be filed with the Supreme Court of Florida.

(2) Within 30 days of the issuance of the mandate, the Capital Collateral Regional Counsel or Registry Counsel shall file a notice of appearance in the trial court or a motion to withdraw based on a conflict of interest or some other legal ground. Motions to withdraw filed more than 30 days after the issuance of the mandate shall not be entertained unless based on a specific conflict of interest as set forth in section 27.703, Florida Statutes.

(3)Within 15 days after Capital Collateral Regional Counsel or Registry Counsel files a motion to withdraw, the chief judge or assigned judge shall rule on the motion and appoint new postconviction counsel if necessary. The appointment of new collateral counsel shall be from the Registry of attorneys maintained by the Commission on Capital Cases unless the case is administratively transferred to another Capital Collateral Regional Counsel.

(c) Preliminary Procedures.

(1) (No Change)

(2) Status Conferences. The assigned judge shall conduct a status hearing conference not later than 90 days after the judicial assignment, and shall hold status conferences at least every 90 days thereafter until the evidentiary hearing has been completed or the motion has been ruled on without a hearing. The attorneys, with leave of the trial court, may appear fey telephone electronically at such the status conferences. Such-requests Requests to appear electronically shall be liberally granted. Pending motions, disputes involving public records, or any other matters ordered by the court shall be heard at the status conferences.

(3)-(4) (No Change)

(d) Time Limitation.

(1) (No Change)

(2) No motion shall be filed or considered pursuant to this rule if filed beyond the time limitation provided in subdivision (d)(1) unless it alleges: that

(A)-(C) (No Change)

(3) All petitions for extraordinary relief in which the Supreme Court of Florida has original jurisdiction, including petitions for writ writs of habeas corpus, shall be filed simultaneously with the initial brief filed on behalf of the death-sentenced prisoner in the appeal of the circuit court’s order on the initial motion for postconviction relief filed under this rule.

(4)-(5) (No Change)

(e)Contents of Motion.

(1) Initial Motion. A motion filed under this rule is an initial postconviction motion if no state court has previously ruled on a postconviction motion challenging the same judgment and sentence. An initial motion and memorandum of law filed under this rule shall not exceed 75 pages exclusive of the attachments. Attachments shall include, but are not limited to, the judgment and sentence. The memorandum of law shall set forth the applicable case law supporting the granting of relief as to each separately pled claim. This rule does not authorize relief based upon claims that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence. If claims that were raised on appeal or should have or could have been raised on appeal are contained in the motion, the memorandum of law shall contain a brief statement explaining why these claims are being raised on postconviction relief. The motion shall be under oath and shall include:

(A) a statement specifying description of the judgment and sentence under attack and the name of the court that rendered the same;
(B)-(E) (No Change)

The memorandum of law shall set forth the applicable case law supporting the granting of relief as to each separately pled claim. — As to claims that were raised on-appeal or should have-or — could have been raised' on appeal, the memorandum shall contain a brief-statement as to why these claims are being raised on postcon-viction relief.-

(2) (No Change)

(f)Procedure; Evidentiary Hearing; Disposition.

(1) (No Change)

(2) Duty of Clerk. Upon the filing of a ■motion for postconviction relief, the clerk of-the trial court shall immediately forward fee-motion and-file to the assigned judge. A motion filed under this rule shall be immediately delivered to the chief judge or the assigned judge along with the court file.

(3) Answer.

(A) Answer -To Initial-Motion to the Initial Motion. Within 60 days of the filing of an initial motion, the state shall file its answer. The answer and accompanying memorandum of law shall not exceed 75 pages, exclusive of attachments and exhibits. The answer shall address the legal insufficiency of any claim in the motion, respond to the allegations of the motion, and address any procedural bars. As to any claims of legal insufficiency or procedural bar, the state shall include a short statement of any applicable case law.
(B) Answer To Successive Motion to a Successive Motion. Within 20 days of the filing of a successive motion, the state shall file its answer. The answer shall not exceed 25 pages, exclusive of attachments and exhibits. The answer shall specifically respond to each claim in the motion and state the reason(s) that an evidentiary hearing is or is not required.

(4) (No Change)

(5) Case Management Conference; Evidentiary Hearing.

(A) Initial Postconviction Motion. No later than 90 days after the state files its answer to an initial motion, the trial court shall hold a case management conference. At the case management conference, both parties shall disclose all documentary exhibits that they intend to offer at the evidentiary hearing, provide an exhibit list of all such exhibits, and exchange a witness list with the names and addresses of any potential witnesses. All expert witnesses shall be so specifically designated on the witness list, and copies of all expert reports shall be attached. At the case management conference, the trial court shall:
(i)-(iii) (No Change)
(B)-(D) (No Change)
(6)-(7) (No Change)
(g)-(h) (No Change)

(i) Dismissal of Postconviction Proceedings.

(1) This subdivision applies only when a prisoner seeks both to dismiss pending postconviction proceedings and to discharge collateral counsel.

(2) If the prisoner files the motion pro se, the Clerk of the Court shall serve copies of the motion on counsel of record for both the prisoner and the state. Counsel of record may file responses within ten days.

(3) The trial judge shall review the motion and the responses and schedule a hearing. The prisoner, collateral counsel, and the state shall be present at the hearing.

(4) The judge shall examine the prisoner at the hearing and shall hear argument of the prisoner, collateral counsel, and the state. No fewer than two or more than three qualified experts shall be appointed to examine the prisoner if the .judge concludes that there are reasonable grounds to believe the prisoner is not mentally competent for purposes of this rule. The experts shall file reports with the court setting forth their findings. Thereafter, the court shall conduct an evidentiary hearing and enter an order setting forth findings of competency or incompetency.

(5) If the prisoner is found to be incompetent for purposes of this rule, the court shall deny the motion without prejudice.

(6) If the prisoner is found to be competent for purposes of this rule, the court shall conduct a complete (Durocher/Faret-ta) inquiry to determine whether the prisoner knowingly, freely and voluntarily wants to dismiss pending postconviction proceedings and discharge collateral counsel.

(7) If the court determines that the prisoner has made the decision to dismiss pending postconviction proceedings and discharge collateral counsel knowingly, freely and voluntarily, the court shall enter an order dismissing all pending postconviction proceedings and discharging collateral counsel. But if the court determines that the prisoner has not made the decision to dismiss pending postconviction proceedings and discharge collateral counsel knowingly, freely and voluntarily, the court shall enter an order denying the motion without prejudice.

(8) If the court grants the motion:

(A) a copy of the motion, the order, and the transcript of the hearing or hearings conducted on the motion shall be forwarded to the Clerk of the Supreme Court of Florida within 30 days; and
(B) discharged counsel shall, within 10 days after issuance of the order, file with the clerk of the circuit court 2 copies of a notice seeking review in the Supreme Court of Florida, and shall, within 20 days after the filing of the transcript, serve an initial brief. Both the prisoner and the state may serve responsive briefs. Briefs shall be served as prescribed by rule 9.210,

(9) If the court denies the motion, the prisoner may seek review as prescribed by rule 9.142.

Court Commentary
1993 Adoption. (No Change)
1996 Amendment. (No Change)
2001 Amendment. (No Change)

2006 Amendment. The amendments provide for the appointment of Registry Counsel in areas of the state that are not served by a Capital Collateral Regional Counsel. Counsel are allowed to appear at status conferences electronically to authorize both telephonic and video appearances.

      . The comment was filed by the Florida Association of Criminal Defense Lawyers with respect to proposed new rule 3.851(i).


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

text:
    Inquiry Concerning A Judge, re Gregory P. HOLDER.
    No. SC03-1171.
    Supreme Court of Florida.
    Dec. 7, 2006.
    Charles P. Pillans, III of Bedell, Ditt-mar, DeVault, Pillans and Coxe, P.A., Jacksonville, Florida, and Marvin E. Bar-kin, Interim General Counsel, of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill and Mullís, P.A., Tampa, FL, for Florida Judicial Qualifications Commission, Petitioner.
    David B. Weinstein and Kimberly S. Mello of Greenberg Traurig, P.A., Tampa, Florida, Juan P. Morillo and Steven T. Cottreau of Sidley Austin, LLP, Washington, D.C., for Judge Holder, Respondent.
   PER CURIAM.

We have for review the motion of Hills-borough County Circuit Judge Gregory P. Holder for attorney’s fees incurred in his defense of charges before the Florida Judicial Qualifications Commission. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons detailed below, we deny the motion because the Florida Constitution does not grant this Court the authority to award attorney’s fees in JQC proceedings.

FACTS AND PROCEDURAL HISTORY

The instant matter arises out of proceedings before the Florida Judicial Qualifications Commission (“JQC”) relating to possible violations of the Code of Judicial Conduct by Judge Holder. In 1994 and 1996, respectively, Judge Holder was elected to the Hillsborough County Court and the Thirteenth Judicial Circuit Court. Pri- or to his election to judicial office, Judge Holder had a distinguished career in the United States Air Force. After he assumed office, Judge Holder continued to serve as an officer in the United States Air Force Reserve. In 1997, Judge Holder enrolled in the United States Air Force Air War College, the completion of which was a requirement for his promotion to the rank of colonel. In early 1998, Judge Holder submitted a paper to the Air War College on the Anglo-American Combined Bomber Offensive in Europe During World War II. Judge Holder subsequently graduated from the Air War College and was promoted to the rank of colonel.

In 2002, Assistant United States Attorney Jeffrey Del Fuoco, who served in the United States Army Reserve, claimed that an unmarked manila envelope was placed under the door of his office at the Army Reserve Headquarters in St. Petersburg. The envelope allegedly contained copies of two papers submitted to the Air War College with an anonymous note indicating that action should be taken on the matter. One paper, uncontestedly on the same topic as the paper Judge Holder submitted to the Air War College in 1998, was submitted to the Air War College by E. David Hoard in 1996 (“the Hoard paper”). The other paper was allegedly the paper Judge Holder submitted to the Air War College in 1998 (“the alleged Holder paper”). This second paper contained significant amounts of material taken verbatim from the Hoard paper. In December 2002, the United States Attorney’s Office provided these two papers to the JQC. In July of 2003, the JQC filed a notice of formal charges against Judge Holder alleging that his submission of a plagiarized paper to the Air War College constituted both a violation of the Code of Judicial Conduct and a violation of federal law because Judge Holder’s written certification that the paper was his own work constituted a false statement made to the federal government.

Throughout the JQC investigation, discovery, and hearing process, Judge Holder maintained that the paper containing the plagiarized material from the Hoard paper was not the paper he submitted to the Air War College but was, instead, a fabricated document made to look like his actual paper. Judge Holder hypothesized that this allegedly fabricated paper was created in an effort to discredit him in his role as a whistleblower in a Hillsborough County Courthouse scandal that was then being investigated. In June of 2005, the case was tried for six days before the JQC hearing panel. On June 22, 2005, the JQC hearing panel voted unanimously to dismiss the charges. On the same day, the JQC also entered an order recommending that this Court award costs to Judge Holder as the prevailing party in the instant matter. Judge Holder expended significant resources in attempting to defend the charges brought by the JQC. On July 25, 2005, Judge Holder filed a motion in this Court for attorney’s fees, which the JQC challenged. This review followed.

ANALYSIS

Judge Holder asserts that he is entitled to an award of attorney’s fees under the common law doctrine affirmed by this Court in Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla.1990). In Thomber, this Court stated:

For public officials to be entitled to representation at public expense, the litigation must (1) arise out of or in connection with the performance of their official duties and (2) serve a public purpose.

Id. at 917 (citing Chavez v. City of Tampa, 560 So.2d 1214 (Fla. 2d DCA 1990)). The Court explained the origins and purpose of the doctrine, stating:

Florida courts have long recognized that public officials are entitled to legal representation at public expense to defend themselves against litigation arising from the performance of their official duties while serving a public purpose. The purpose of this common law rule is to avoid the chilling effect that a denial of representation might have on public officials in performing their duties properly and diligently.

Thornber, 568 So.2d at 916-17 (citations omitted). The JQC contends that the proceedings below do not meet the first prong of the test announced in Thomber because the formal charges against Judge Holder relate to extrajudicial conduct that allegedly occurred while he was attending a program to advance his military career. However, we do not address the arguments under Thornber further because the resolution of this matter does not hinge on the Thornber test.

In fact, the Thomber doctrine has never been applied to the attorney’s fees incurred by a judge in defending charges filed by the JQC. Although Judge Holder correctly points out that a 1993 opinion of the Attorney General of Florida states that the Thornber doctrine applies to attorney’s fees in JQC proceedings, see Op. Att’y Gen. Fla. 93-21 (1993), opinions of the Attorney General are not binding upon this Court. See Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 473 (Fla.2005) (citing State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla.1993)); In re Advisory Opinion to the Governor, 600 So.2d 460, 463 n. 3 (Fla.1992) (disapproving an opinion of the Attorney General). Upon consideration of the matter, we disagree with the opinion of the Attorney General and conclude that the Thomber doctrine does not apply to JQC proceedings because of an implicit prohibition in the Florida Constitution.

Article V, section 12(c) of the Florida Constitution vests this Court with the power to review the findings and recommendations of a JQC hearing panel, and to “accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission.” Art. V, § 12(c)(1), Fla. Const. The constitution also specifically states that “[t]he supreme court may award costs to the prevailing party” in JQC proceedings. Id. § 12(c)(2) (emphasis supplied). Notably, the constitution is silent with regard to the authority of this Court to award attorney’s fees in JQC proceedings. Further, in In re Judge Hapner, 737 So.2d 1075 (Fla.1999), we held that attorney’s fees in JQC proceedings could not be awarded as costs. See id. at 1077. We conclude that the express constitutional vesting of authority in this Court to grant costs in JQC proceedings implies that this Court is without similar authority to grant attorney’s fees in JQC proceedings.

We have considered the principle of judicial restraint urged in the coneurring-in-result-only opinion, but find it inapplicable. Of course, we have long subscribed to a principle of judicial restraint by which we avoid considering a constitutional question when the case can be decided on nonconstitutional grounds. See, e.g., State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995) (“[W]e adhere to the settled principle of constitutional law that courts should endeavor to implement the legislative intent of statutes and avoid constitutional issues.”); State v. Covington, 392 So.2d 1321, 1322-23 (Fla.1981) (“It is a ‘settled principle of constitutional law that courts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.’ ”) (quoting Singletary v. State, 322 So.2d 551, 552 (Fla.1975)); Franklin County v. State, 24 Fla. 55, 3 So. 471, 472 (1888) (“[A] court will not, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary....”).

We do not intend to violate that principle here. We simply believe it does not apply. We have generally applied this principle when called upon to decide the constitutionality of a specific statute or specific conduct. See, e.g., Fla. Bar v. Gold, 937 So.2d 652, 655 (Fla.2006) (declining to determine whether application of the Rules Regulating the Florida Bar would unconstitutionally suppress free speech where the issue could be resolved on other grounds); Mozo, 655 So.2d at 1117 (declining to address whether interception of cordless phone conversations violates the constitutional rights of privacy where the case could be decided on statutory grounds); Floridians United for Safe Energy, Inc. v. Pub. Serv. Comm’n, 475 So.2d 241, 242 (Fla.1985) (declining to determine whether a session law violated the single subject requirement where the case could be decided on other grounds); Covington, 392 So.2d at 1322-23 (declining to find a statute unconstitutionally vague where the order under review could be affirmed on other grounds).

Here, we do not decide the constitutionality of a particular statute or action, but simply note that the Florida Constitution does not grant us the authority to provide the relief requested. In that sense, our decision is similar to countless other cases where we have determined that the Florida Constitution does not give this Court authority to act, such as our regular determinations that we lack jurisdiction to hear a case. See, e.g., Jackson v. State, 926 So.2d 1262, 1265 (Fla.) (“This Court has long recognized that it lacks jurisdiction over unelaborated per curiam decisions in the context of discretionary review jurisdiction.”), cert. denied, — U.S.-, 127 S.Ct. 194, 166 L.Ed.2d 159 (2006); Mystan Marine, Inc. v. Harrington, 339 So.2d 200, 201 (Fla.1976) (“Time and again we have noted the limitations on our review and we have refused to become a court of select errors.”) (footnote omitted). In such cases, we do not avoid the jurisdictional issue and address the merits of the case on the theory that determining jurisdiction would violate the principle of avoiding a constitutional question when possible. To the contrary, we recognize that our jurisdiction, which is outlined in the Florida Constitution, is a threshold matter that must be addressed before we can decide the merits of a case. See, e.g., Jackson, 926 So.2d at 1265 (“[Ajrticle V, section 8(b)(1) does not authorize this Court to review unelaborated per curiam decisions issued by the district court.”); Gandy v. State, 846 So.2d 1141, 1143 (Fla. 2003) (“The jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution.”) (quoting Mys-tan Marine, Inc., 339 So.2d at 201). Similarly, in this case we recognize that the Florida Constitution does not grant this Court the authority to award attorney’s fees to a respondent in a JQC proceeding. Such an acknowledgement does not violate the principle that we should avoid constitutional questions when possible; rather, it acknowledges that before this Court can take action, the Florida Constitution must give us the power to do so. This principle recognizes that our authority is not boundless; it is circumscribed by the language of the Florida Constitution. Nothing can be more consistent with the concept of judicial restraint.

Therefore, we deny Judge Holder’s motion for attorney’s fees because we are without constitutional authority to award attorney’s fees in JQC proceedings.

It is so ordered.

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

LEWIS, C.J., concurs in result only with an opinion.

WELLS, J., recused.

LEWIS, C.J.,

concurring in result only.

I concur in result only based on my belief that the majority opinion violates the fundamental maxim of judicial restraint which dictates that “[w]hen a case may be resolved on grounds other than constitutional grounds, the Court will ordinarily refrain from proceeding to decide the constitutional question.” Fla. Bar v. Gold, 937 So.2d 652, 655 (Fla.2006); see also Gaudet v. Fla. Bd. of Prof'l Eng’rs, 900 So.2d 574, 581 (Fla. 4th DCA 2004). The United States Supreme Court has endorsed and utilized this maxim as well, concluding that prior to reaching any constitutional questions, courts must first consider nonconstitutional grounds for a decision. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985); see also Amer. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161, 109 S.Ct. 1693, 104 L.Ed.2d 139 (1989) (remanding case to federal district court and noting that “the District Court should not pronounce upon the relative constitutional authority of Congress and the Executive Branch unless it finds it is imperative to do so”).

To the extent that the majority contends that this maxim does not apply to the circumstances governing the instant case, I disagree. While judicial restraint may be applied in cases in which a court chooses to avoid addressing the constitutionality of a statute or conduct by resolving the dispute on nonconstitutional grounds, this longstanding maxim has never been interpreted to apply only in such cases, and the majority provides no authority to support such principle. Rather, the maxim broadly encompasses any issue that touches upon rights or powers under the Florida or the United States Constitutions.

Indeed, contrary to the majority view, this Court has applied the maxim of judicial restraint to cases that do not involve a constitutional challenge to a statute or conduct by a government official. In Metropolitan Dade County Transit Authority v. State Department of Highway Safety & Motor Vehicles, 283 So.2d 99 (Fla.1973), at issue was whether county-owned buses should be taxed under the Florida Statutes as “Local Buses” or “Exempt or Official” vehicles. See id. at 100. The trial court entered judgment in favor of the Department. See id. On review before this Court, we noted:

In reaching his decisions, the trial judge discussed Fla. Const, art. VII, § 1(b) and (c) in stating that real property and tangible personal property including motor vehicles are exempt from state ad valorem taxation. By explaining these constitutional provisions, the judge construed language in our constitution giving us appeal jurisdiction.

Id. However, we nonetheless declined to resolve the case under constitutional principles and, instead, followed the maxim of judicial restraint:

[W]e recognize the well-settled rule that precludes us from deciding constitutional questions whenever the case can be disposed of on a non-constitutional ground. In re Estate of Sale, 227 So.2d 199, 201 (Fla.1969). This principle applies here because our decision will not require an interpretation or an explanation of constitutional language; it turns on matters of statutory construction.

Id. at 101.

In another case, involving noncriminal infractions of the Florida Uniform Traffic Code (State v. Carr, 373 So.2d 657 (Fla. 1979)), the trial court vacated judgments, holding in part that “article V, section 20(c)(4), Florida Constitution, does not confer jurisdiction on the county court to hear noncriminal traffic infractions.” Id. at 657. On review of the county court order here, this Court concluded that jurisdiction existed because the lower court “construed provisions of our state constitution.” Id. However, we reversed the order as moot on the basis that the defendants’ motions to vacate were untimely filed. See id. at 658-59. In doing so, this Court relied on Transit Authority for the principle that it would not “reach the issue of either the jurisdiction of county courts to hear noncriminal traffic infractions or whether it is a violation of separation of powers for a judicial officer to sit as an official in chapter 318 proceedings.” Id. at 659.

These cases demonstrate that the Court simply has not applied the maxim of judicial restraint exclusively to constitutional challenges of statutes or conduct, nor established such concept as the law of Florida. Rather, we have utilized this principle to avoid addressing constitutional issues such as taxation and the jurisdiction of county court judges. Accordingly, judicial restraint is equally applicable to the instant proceeding, and I do not subscribe to the majority’s attempt to pigeonhole the applicability of this maxim where it has not previously been so limited. The majority has unnecessarily limited that restraint today.

The majority’s analogy of the instant situation to jurisdictional determinations is unavailing because it is undisputed that this Court has jurisdiction to review JQC proceedings. See art V, § 12(c), Fla. Const. Having established our jurisdiction, the principle of judicial restraint then applies to ensure that the Court not resolve an issue on a constitutional basis unless “it [is] imperative to do so.” Garfinkel, 490 U.S. at 161, 109 S.Ct. 1693. Because there is a nonconstitutional basis upon which to resolve the attorney’s fees issue presented by the instant case (i.e., by application of the Thornber test), the maxim of judicial restraint does indeed apply.

Applying this maxim to the instant matter, I would conclude that the issue of our constitutional authority to grant attorney’s fees in JQC proceedings need not be considered because the proceedings in the instant matter fail to meet the initial requirements of the Thomber doctrine. The first prong of the test announced in Thom-ber dictates that “[f]or public officials to be entitled to representation at public expense, the litigation must (1) arise out of or in connection with the performance of their official duties.” Thornber, 568 So.2d at 917. The JQC proceedings in the instant matter do not satisfy this requirement because the allegations in the formal charges related to Judge Holder’s submission of an allegedly plagiarized paper to the United States Air Force Air War College. Judge Holder enrolled in the Air War College for the purposes of advancing his military career. Neither Judge Holder’s attendance at nor alleged submission of a plagiarized paper to the Air War College are connected with Judge Holder’s official judicial duties. This is not a case where the charges arose from a judge’s intemperate behavior with regard to the parties involved in a case, nor is this an instance where the charges addressed a lack of judicial impartiality in deciding a matter. These situations are examples of conduct that may be directly related to the official duties of a judge that may become the subject of formal charges before the JQC.

Therefore, the JQC proceedings in the instant matter do not satisfy the initial test announced in Thornber, and Judge Holder’s motion for attorney’s fees should be denied on that ground. This resolution would avoid the constitutional issue addressed by the majority opinion, and would respect the long-standing maxim of judicial restraint, which is clearly applicable to the subject matter of the instant proceeding.

      . By the time the two papers were handed over to the JQC, both the manila envelope and the anonymous note had mysteriously vanished.