text:
    Ronald F. MURPHY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D04-2964, 4D04-4437.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

When appellant was charged with violating probation, his case was heard by a judge who was not the judge who accepted his original plea of guilty. After the successor judge imposed a five year prison sentence, appellant appealed, and during the appeal appellant filed a rule 3.800(b)(2) motion to correct sentencing error, arguing for the first time that his being sentenced by a successor judge violated rule 3.700(c)(1), which provides:

Noncapital Cases. In any case, other than a capital case, in which it is necessary that sentence be pronounced by a judge other than the judge who presided at trial or accepted the plea, the sentencing judge shall not pass sentence until the judge becomes acquainted with what transpired at the trial, or the facts, including any plea discussions, concerning the plea and the offense.

In Scott v. State, 909 So.2d 364 (Fla. 5th DCA 2005), rev. denied, 924 So.2d 810 (Fla.2006), the court concluded that the successor judge rule does not require the judge who presided over the trial or accepted the plea to sentence the defendant after a violation of probation. The court quoted from the concurring opinion of Judge Grimes in Lester v. State, 446 So.2d 1088, 1089-90 (Fla. 2d DCA 1984):

Florida Rule of Criminal Procedure 3.700(c) as construed in Lawley v. State [377 So.2d 824 (Fla. 1st DCA 1979)] contemplates that, except in emergency situations, a sentence shall be imposed by the trial judge or the judge who accepted the plea. However, where a judge has placed the defendant on probation and the probation is later revoked by another judge, I do not believe the rule demands that the first judge conduct sentencing even though upon revocation the defendant is technically being convicted of the original offense. The obvious purpose of the rule is to assure that the judge most familiar with the defendant will conduct the sentencing. The original judge would not have chosen probation unless he felt at that time that the defendant warranted being placed in such a status. When the defendant violates his probation the circumstances have changed, and the judge who presided at the revocation hearing knows more about the defendant’s current status than the original judge. Aside from the administrative nightmare of recalling judges who may have been transferred to other divisions, to require the original trial judge to conduct sentencing after a probation revocation would violate the spirit of the rule.

In Wilson v. State, 918 So.2d 446 (Fla. 4th DCA 2006), the defendant contended that there was a violation of rule 3.700 in regard to his sentence for a probation violation and we affirmed, citing Scott. We accordingly conclude that the rule does not apply in this case.

Appellant also timely moved to withdraw his plea under rule 3.170(1), and contends that the court erred in denying his motion without an evidentiary hearing. One of the grounds raised by appellant is that the court relied on an erroneous scoresheet and that he would not have pled if he had known the court would do so. This allegation, which may have merit, is not conclusively rebutted by the record. Simeton v. State, 734 So.2d 446 (Fla. 4th DCA 1999). We accordingly reverse and remand the summary denial of the motion to withdraw the plea.

We also agree with appellant that the trial court did not have jurisdiction to deny his pro se motion to correct sentencing error, filed under Florida Rule of Criminal Procedure 3.800(b)(1), because the order was entered more than sixty days after the filing of the motion. Brooks v. State, 867 So.2d 1276 (Fla. 4th DCA 2004).

WARNER and GROSS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kevin CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1192.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Kevin Carter, Milton, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kevin Carter appeals from an order summarily denying his rule 3.800(a) motion. We reverse.

Carter entered a guilty plea to three offenses that were alleged to have occurred on November 22, 1996. His primary offense at sentencing was second degree felony murder with a firearm in violation of section 782.04(3). Following two successful prior rule 3.800(a) motions, the first filed pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000) (sustaining a constitutional challenge to the 1995 sentencing guidelines, enacted by chapter 95-184, based on violation of the single subject rule), he was resentenced to 308 months (25.66 years) for counts I and II. His concurrent term of fifteen years for count III was unaffected.

In the instant motion, Carter claimed that the 1994 scoresheet under which he currently is sentenced was miscalculated because the primary offense should have been scored at level 9, with 91 points, but instead it was scored at level 10, with 116 points. He asked to be resentenced pursuant to a correctly calculated scoresheet.

The trial court summarily denied the motion based on a response by the state which admitted that second degree felony murder is a level 9 offense, but argued that section 775.087(1) provides that, when the level of an offense is reclassified for use of a weapon or firearm, the sentencing level is increased.

However, the raising of the sentencing level of an offense pursuant to section 775.087(1) was added by chapter 95-184, § 19, at 1708, Laws of Florida. Chapter 95-184 is the same session law that was held to violate the single subject requirement in Heggs. The severity level enhancement should not have been applied to Carter’s resentencing. Reid v. State, 799 So.2d 394, 400 (Fla. 4th DCA 2001) (holding that the one-level increases for use of firearm are not applicable to a defendant who committed the charged offense within the window period between October 1, 1995 and May 24, 1997).

Subtracting 25 points (the difference between 116 for a level 10 offense and 91 points for a level 9 offense) from Carter’s most recent scoresheet would reduce his presumptive sentence from 246.4 to 221.4 months, and the top of his range to 276.75 months, or a little over 23 years. Resentencing is required, even under the “could-have-been imposed” test which this court applies to rule 3.800(a) motions. See Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006) (affirming summary denial of rule 3.800(a) motion, though scoresheet error added 36 extra points, making lowest permissible sentence 66.3 months when it should have been 39.3 months, but a legal sentence of ten years was imposed; certifying conflict with Wilson v. State, 913 So.2d 1277 (Fla. 2d DCA 2005)) (en banc). Compare State v. Anderson, 905 So.2d 111 (Fla.2005) (holding that if the scoresheet error is raised either on direct appeal or by a rule 3.850 motion, the test is whether the error was harmless under the “would-have-been-imposed” test).

The state’s argument that the motion is untimely because it was filed more than two years after Carter’s most recent sentence became final is without merit. Higgins v. State, 890 So.2d 519, 519-20 (Fla. 4th DCA 2005) (“Scoresheet calculation errors may be corrected pursuant to rule 3.800(a) ‘at any time.’ ”).

Reversed and Remanded for further proceedings.

GUNTHER, STONE and MAY, JJ., concur.

      . See § 921.0012, Fla. Stat. (Supp.1994).


author: STONE, J.

text:
    Deanna COPPOLA, individually and as natural mother and guardian of Emilio Coppola, Appellant, v. FEDERATED NATIONAL INSURANCE COMPANY and Michele Gallander, by and through her natural mother and guardian, Renee Schroeder, Appellees.
    No. 4D06-465.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Michael Bendell of Michael Bendell, P.A., Boca Raton, for appellant.
    Warren B. Kwavnick and Bruce M. Try-bus of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauder-dale, for Appellee-Federated National Insurance Company.
   STONE, J.

We reverse an order denying statutory attorney’s fees incurred by the insured in defending a declaratory judgment action initiated by Federated National Insurance Company (Federated). Federated had claimed that there was no coverage for a pending personal injury claim under the insured’s homeowner’s policy.

We conclude that Federated’s voluntary dismissal of its declaratory action conferred a benefit on the defendant insured. Therefore, the insured is entitled to attorney’s fees as the prevailing party pursuant to section 627.428, Florida Statutes.

In the declaratory action, Federated claimed there was no coverage for the bodily injury, which the plaintiff claimed was intentional, and that it had “no obligation to defend or indemnify” the insured. The declaratory action was initiated in February 2005; in April, the insured filed a motion to dismiss. On August 31, 2005, Federated filed a notice of voluntary dismissal.

Florida Statutes section 627.428, Attorney’s fee, provides, in pertinent part:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any ... insured ... under a policy ... the trial court ... shall adjudge ... a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. (2005).

We have considered Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla.1994), relied on by Federated, and deem it inapposite. Rather, we find persuasive two analogous decisions from our court, O’Malley v. Nationwide Mutual Fire Insurance Co., 890 So.2d 1163 (Fla. 4th DCA 2004), and Unterlack v. Westport Insurance Co., 901 So.2d 387 (Fla. 4th DCA 2005), both of which relate to prevailing party determination pursuant to section 627.428 when an action is voluntarily dismissed.

In O’Malley, after Nationwide resolved the underlying tort claim, Nationwide voluntarily dismissed the declaratory judgment action and O’Malley moved for attorney’s fees. 890 So.2d at 1164. The trial court denied the motion, holding that O’Malley had not prevailed in the declaratory action. Id. The trial court had relied on Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So.2d 217 (Fla.1983), in which an insured sued the insurer and the parties settled the case without a final judgment being entered. In reversing the trial court’s denial, we distinguished Wollard as not involving a declaratory action, but a first party claim. We reasoned,

The trial court’s denial of fees in the present case, grounded on the fact that the tort claimant was paid no money, does not take into account the benefit received by the insured. If Nationwide had obtained a judgment in the declaratory action, the insured would have been responsible for furnishing her own defense and resolving the tort claim. As it turned out, however, Nationwide furnished the insured a defense and settled the claim. Nationwide, in that action, provided the insured precisely what Nationwide was contending the insured was not entitled to in the declaratory action. When Nationwide dismissed the declaratory action, it was thus the “functional equivalent of a confession of judgment or a verdict in favor of the insured” in the declaratory action. Wollard, 439 So.2d at 218.

In Unterlack, the insurer filed a declaratory judgment action against the insured, alleging that the insured’s claims were not covered under the terms of the insurance policy. 901 So.2d at 388. The insurer then filed a voluntary dismissal without prejudice and, after filing the dismissal, settled the underlying lawsuits against the insured. Id. We held that the case was controlled by O’Malley, notwithstanding that in O’Malley, the underlying suit was settled before the dismissal was taken:

For the purpose of applying section 627.428(1), whether a voluntary dismissal is the “functional equivalent of a confession of judgment or verdict in favor of the insured” does not turn on the order of a voluntary dismissal of a declaratory action against an insured and the settlement of a claim against the insured; that the dismissal and settlement are related to each other is enough to trigger the operation of the statute.

Unterlack, 901 So.2d at 389. See also Mercury Ins. Co. of Fla. v. Cooper, 919 So.2d 491 (Fla. 3d DCA 2005) (following O’Malley and Unterlack, where insurer filed a declaratory action and,- after settling underlying tort claim against insured, voluntarily dismissed declaratory action).

In Danis, our supreme court concluded that,

Under the present statute, an insured or beneficiary who prevails is entitled to attorneys’ fees. The statute offers no similar prospect to the surety, nor does the statute say that the fees will be unavailable if the surety prevails on some but not all of the issues.... Likewise, we agree with the lower courts that a “prevailing insured or beneficiary” is one who has obtained a judgment greater than any offer of settlement previously tendered by the insurer. Absent that, the insured or beneficiary is entitled to no fee award.

645 So.2d at 421 (internal citation omitted). However, in Danis, the supreme court did not consider circumstances in which the insurer initiates a declaratory action, forcing the insured to defend it, and, potentially, the underlying case, and then files a voluntary dismissal.

We have also considered O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So.2d 785 (Fla. 3d DCA 1998), receded from on other grounds, Caufield v. Cantele, 837 So.2d 371 (Fla.2002), but deem it distinguishable, in that it involved a voluntary dismissal of a declaratory action, followed by the insurer immediately filing a second declaratory lawsuit which was still pending; the court did not deny fees to the insured, but found that the insured had prematurely sought the fees.

Federated urges that O’Malley and Unterlack stand for the proposition that attorney’s fees are recoverable only in cases where the insurer voluntarily dismisses the declaratory judgment in connection with a settlement of the underlying action against the insured, whereas here, the underlying claim is unresolved.

We conclude that here, as in O’Malley, when Federated voluntarily dismissed the declaratory action, the insured received the benefit of representation in the underlying tort suit. If Federated had prevailed in the declaratory action, then certainly any representation provided Coppola would have terminated; obviously, representation, or continued representation, confers a benefit. The same benefit, consideration of furnishing a defense, is present here as it was in O’Malley, and as we held in that case, the voluntary dismissal should be considered the “functional equivalent of a confession of judgment or a verdict in favor of the insured.”

Therefore, the order denying fees and costs is reversed, and we remand for entry of an order in favor of the insured.

SHAHOOD and HAZOURI, JJ., concur.

      . We note that Coppola claims the representation began after the dismissal, and Federated claims Coppola was represented prior to the declaratory action.


text:
    Jeffrey B. FOREMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4119.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

GUNTHER, STONE and FARMER, JJ., concur.


author: KLEIN, J.

text:
    Richardson OMELIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3415.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Santiago Lavandera of Santiago Lavand-era, P.A., Miami Lakes, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

As a result of having sexual activity with a victim under the age of sixteen, appellant was convicted of violating section 800.04(4), Florida Statutes (2003) (lewd and lascivious battery), and section 800.04(5)(c)(2) (lewd and lascivious molestation). He argues that double jeopardy precludes separate convictions because they stem from one criminal episode. We affirm.

The evening began as a date which included dinner and renting a movie to watch at appellant’s home. While they were watching the movie appellant kissed the victim and convinced her to go with him into his bedroom. In the bedroom he kissed her, removed her shirt and kissed her breasts. She told him she did not want to have sex and that she felt uncomfortable. He then went into the bathroom, removed his clothes, and returned wearing only boxer shorts. He then removed her pants and engaged in vaginal intercourse with her.

The issue is whether appellant’s conduct in the bedroom prior to his going into the bathroom can form the basis for a separate offense. Although that was unclear when the briefs were filed in this case, our supreme court has now held in State v. Paul, 934 So.2d 1167 (Fla.2006), that it can. In Paul, after engaging in sexual activity in the living room of the victim’s apartment, defendant asked the victim if they could go into the bedroom. They then went into the bedroom, shut the door and engaged in more intimate sexual activity. In Paul the court held that there was a sufficient temporal break between the activity in the living room and the activity in the bedroom, for the offender to reflect and form a new criminal intent.

If the moving from one room to another in Paul was a sufficient temporal break to support separate convictions, then the break in this case, while appellant went into the bathroom, was also sufficient to support separate convictions. We accordingly affirm.

POLEN and MAY, JJ., concur.


author: WARNER, J.

text:
    Antwuan SNELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3602.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Antwuan Snell appeals his multiple convictions, including ones for trafficking in cocaine, aggravated fleeing and eluding, and two counts of leaving the scene of an accident with injuries. Snell claims that the trial court erred in admitting his statement connecting him to the cocaine, because the state had not established the corpus delicti before its admission. He also claims that numerous evidentiary errors cumulatively denied him a fair trial. We conclude that the court did not err in admitting his statement, and the alleged evidentiary errors were either not error, not preserved, or were harmless. We affirm.

Two Fort Lauderdale police officers noticed a vehicle with dark tinted windows. They activated their lights to stop the vehicle for the equipment violation, but the vehicle took off. Rather than engage in a high speed chase, they turned off their lights but observed the vehicle continue at a high rate of speed and ultimately crash into another vehicle. The crash was of such force as to throw both occupants of the other vehicle out of the car and onto the pavement.

The officers pulled up and saw defendant Snell, whom they identified as the driver, crawling over his unconscious passenger out the passenger side window. He took off running, but one officer caught him almost immediately, took him to the ground, and handcuffed him. EMT personnel arrived to assist the injured victims. The other officer checked Snell’s passenger. When he did, he observed a plastic bag containing cocaine on the front seat in the middle of the car. Officers searched Snell and found a wad of small bills totaling $2010 in his pocket.

Snell complained of foot pain, and the officers transported him to the same hospital where the injured victims from the other vehicle were taken. Both during the trip to the hospital and at the hospital, Snell was talkative. In fact, at the hospital he provoked a confrontation with the family of one of the victims with some of his comments and his laughing. During this time, he continued to talk and told one of the officers, using expletives, that they could keep his cocaine but he wanted his money back.

The state ultimately charged Snell with trafficking in cocaine, as the amount of cocaine seized was 29.2 grams, as well as aggravated fleeing and eluding, two counts of leaving the scene of an accident with injuries, leaving the scene of an accident with property damage, misdemeanor reckless driving, and having no valid driver’s license. The jury convicted him of all charges. The court sentenced Snell to thirty years in prison on the trafficking count, fifteen years on the aggravated fleeing and eluding, five years on the counts for leaving the scene of an accident with injuries, and time served on the remaining counts.

On appeal, Snell contends that the court erred in allowing the state to introduce his admission of ownership of the cocaine before establishing the corpus delicti of the crime. “Ordinarily, proof of the corpus delicti of the crime charged is required before a confession or admission against interest may be received in evidence.” Garmon v. State, 772 So.2d 43, 46 (Fla. 4th DCA 2000). Specifically, the state has to prove:

(1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another. In regard to the first part — that a crime was committed— each element of the relevant offense must be shown to exist. With respect to the second part — the criminal agency of another — the proof need not show the specific identity of the person who committed the crime. That is, it is not necessary to prove that the crime was committed by the defendant.

Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997) (citations omitted). The primary function of this requirement is to protect the defendant “from being convicted of a nonexistent crime due to ‘derangement, mistake or official fabrication.’ ” Baxter v. State, 586 So.2d 1196, 1198 (Fla. 2d DCA 1991) (quoting State v. Allen, 335 So.2d 823, 825 (Fla.1976)).

However, corpus delicti does not necessarily include each element of proof required to establish the defendant’s guilt. Baxter, 586 So.2d at 1199. “For example, the defendant’s identity is not typically an element of a crime’s corpus delicti.” Id. As the supreme court stated,

This [corpus delicti] rule obviously does not require the state to prove a defendant’s guilt beyond a reasonable doubt before his or her confession may be admitted. Indeed, as this Court has stated before, it is preferable that the occurrence of a crime be established before any evidence is admitted to show the identity of the guilty party, even though it is often difficult to segregate the two. The state has a burden to bring forth ‘substantial evidence’ tending to show the commission of the charged crime. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.

Allen, 335 So.2d at 825 (footnotes omitted). The state’s burden in establishing the corpus delicti for an admission is far below its burden for a conviction. See Garmon, 772 So.2d at 46 (“The state is not required to prove the elements of the corpus delicti beyond a reasonable doubt before admission of a defendant’s self-incriminatory statements. That burden is only required to convict. The state must, however, present substantial evidence which tends to show that the crime charged was, in fact, committed by someone.”) (citations omitted). Circumstantial evidence may be offered to satisfy this burden. See Allen, 335 So.2d at 824 (“[B]efore a confession is admitted the state has the burden of proving by substantial evidence, that a crime was committed, and that such proof may be in the form of circumstantial evidence.”).

In this case, Snell was charged with violating section 893.135(1)(b)1.a., Florida Statutes (2001), which is the offense of trafficking in cocaine. “The four elements' of the offense which must be established beyond a reasonable doubt are as follows: a) that the defendant knowingly purchased or possessed a certain substance, b) the substance was cocaine, c) the quantity was 28 grams or more, and d) the defendant knew the substance was cocaine.” Concepcion v. State, 857 So.2d 299, 300 (Fla. 5th DCA 2003). In order to establish constructive possession of a controlled substance, the state must prove that the defendant “knew of its presence, knew of its illicit nature, and had dominion and control over the contraband.” Lewis v. State, 570 So.2d 346, 348 (Fla. 2d DCA 1990).

The state established sufficient evidence of these elements prior to the admission of the defendant’s statement. It proved that officers found a trafficking weight of cocaine in open view in the car Snell had been driving. See State v. Wallace, 734 So.2d 1126, 1129 (Fla. 3d DCA 1999); Johnson v. State, 569 So.2d 872, 874 (Fla. 2d DCA 1990). The state introduced additional circumstantial evidence that the crime of trafficking in cocaine had been committed. Snell was the driver of the vehicle who attempted to elude the police at a high rate of speed. After the collision, Snell tried to escape from the scene. Moreover, Snell had $2010 in a wad of bills in his pocket.

The cases cited by Snell all involve insufficient evidénce of the commission of the charged crime to admit the defendant’s statement, so these are distinguishable on their facts. McQueen v. State, 304 So.2d 501 (Fla. 4th DCA 1974) (mere fact that defendant pawned stolen item insufficient to prove corpus delicti where there were no other facts showing defendant’s knowledge that item was stolen); State v. Colorado, 890 So.2d 468 (Fla. 2d DCA 2004) (no independent proof that defendant was driver of vehicle to support admission of inculpatory statement in vehicular homicide prosecution); and Harrison v. State, 483 So.2d 757 (Fla. 2d DCA 1986) (no independent evidence of defendant’s possession of gun to support defendant’s admission in prosecution for possession of a firearm by a convicted felon). In none of those cases did the state introduce evidence showing the degree of connection of the defendant to the crime that was present in this ease.

The state presented a sufficient eviden-tiary predicate to establish the corpus de-licti. The primary purpose of the rule to prevent admission of a statement of a nonexistent crime or a mistake has been satisfied, and the trial court did not err in admitting the defendant’s statement of ownership of the cocaine.

In his second issue on appeal, Snell argues that the trial court erred in admitting evidence that was irrelevant and prejudicial. The standard of review of trial court determinations of relevance is an abuse of discretion standard. Blackmon v. State, 920 So.2d 1284, 1285 (Fla. 4th DCA 2006); Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). “All relevant evidence is admissible, except as provided by law.” Elysee v. State, 920 So.2d 1205, 1208 (Fla. 4th DCA 2006). “Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat.

First, Snell complains that the officers were able to testify to Snell’s interaction with the family of the victim at the hospital when Snell was grinning, laughing, and making comments that antagonized the family. His actual comments were not introduced into evidence, and Snell did not object to some of the statements by witnesses that he was grinning and laughing. The state sought admission of this evidence on the charges of leaving the scene of an accident with injuries. Snell’s defense was that when he got out of the vehicle, he was not running away but was himself injured with a broken ankle and essentially could not render aid. See §§ 316.027(1)(a) and 316.062(1), Fla. Stat. His demeanor in the emergency room would tend to disprove his claim of pain and significant injury and thus discredit his claim that he was unable to run away at the scene. The trial court did not abuse its discretion in overruling Snell’s objection, because the evidence had some relevance to the material facts in issue.

A second area of evidence, the introduction of which is raised as error on appeal, involves evidence of the injuries to the victims of the accident. The defendant’s knowledge of injury is an element of the offense of leaving the scene of the accident involving injury or death. See State v. Dumas, 700 So.2d 1223 (Fla.1997). Further, in T.B. v. State, 669 So.2d 1085, 1086 (Fla. 4th DCA 1996), we stated “evidence of victim injury, even where not an element of the offense charged, is admissible if otherwise relevant.”

When a paramedic who attended to the victims of the accident testified, the state asked him to explain what kind of treatment he administered. Snell’s counsel objected to the testimony on the ground that the seriousness of the injury is not an element of the crime of leaving the scene of an accident with injuries. The trial court expressed disagreement with the contention that evidence of the seriousness of an injury was not relevant, because a defendant might argue that a victim really suffered no injury. Snell’s counsel agreed that the state would be entitled to bring in evidence of what a victim’s injuries were and the extent of the injuries. He clarified that he was objecting to continuing testimony about treatment, particularly the treatment in the hospital. The court denied the objection.

The paramedic testified that he put a dressing on a victim’s abrasions on his scalp and placed the victim on a board to stabilize his spine in case of injury. Then paramedics transported him to the hospital. Essentially, that was the extent of the testimony following the objection. While evidence of the type of treatment of a victim would not be necessarily relevant to show whether the victim was injured, the evidence, even if irrelevant, was harmless given the other evidence of injury to which the paramedic testified.

Later both victims testified about their injuries. Victim Schepp testified without objection to the extent of his injuries, including that his head was “split open,” he was in a wheelchair for eight months, he had pins in his legs, and he could not walk. He showed the jury some of his scars and his right hand which was crushed in the accident. After multiple questions on these injuries, the prosecutor asked if he had any other medical conditions, and to this question Snell’s attorney objected “based on my previous. argument.” The court overruled this objection, and Schepp testified that he had convulsions and was constantly in pain.

Schepp was allowed to testify to the extent of his injuries without objection. When defense counsel objected based upon “previous argument,” the question to Schepp did not involve treatment but more evidence of the nature of his injuries. The trial court did not err in overruling this inapposite objection. However, in any event we would consider that this evidence was merely cumulative of other unobject-ed-to testimony regarding Schepp’s injuries and harmless.

A third claimed error in the admission of evidence involves a comment on the right to remain silent by one of the officers who testified that Snell refused to answer questions by the traffic homicide investigator when she came to the hospital to interview him. Reviewing the testimony, we conclude this objection was not preserved. On cross-examination, defense counsel asked the officer whether he remembered the investigator talking to Snell at the hospital, to which the officer responded that he did not believe that Snell talked to her, because he refused to answer the questions. Again, defense counsel asked if the officer remembered the investigator talking to Snell. After several other questions, the officer again said that he remembered that the investigator had come to take a statement from him but that he refused to give a statement.

At that point, defense counsel asked to approach the bench and then began by contending that he had not opened the door to the statement. After the prosecutor responded, defense counsel admitted that he had asked the officer whether the investigator questioned Snell. Nevertheless, defense counsel contended that the statement was a gratuitous remark on Snell’s right to remain silent. While the prosecutor commented that he did not think it was a comment on silence because Snell was actually talking to the officers, the prosecutor did not have any objection to the court giving a cautionary instruction. Snell’s attorney then said, “I’m just going to note my objection” and said he would make a decision later on “if I even want a curative. I may not.” The court never definitively ruled on the objection, and counsel never requested a curative instruction.

Under these circumstances the issue was not preserved. A party must obtain a ruling from the trial court in order to preserve an objection for appeal. See Carratelli v. State, 832 So.2d 850 (Fla. 4th DCA 2002). Although the court made comments which indicated that counsel opened the door to the answer given, it did not rule, and counsel did not take advantage of the offer of a curative instruction, as advocated by the state. There is no showing that the request would have been refused.

As to the remaining evidentiary issues raised, the trial court did not abuse its discretion in admitting either the traffic investigator’s expert evidence, or in admitting a prior consistent statement by one of the officers. See § 90.801(2)(b), Fla. Stat. Finally, with respect to Snell’s claim that, during closing argument, the prosecutor impermissibly commented on Snell’s right to remain silent, the comment was not objected to and is not preserved for appeal.

Affirmed.

GROSS and HAZOURI, JJ„ concur.

      . The alleged crime was committed in 2001, which was before section 893.101, Florida Statutes, was amended, deleting the requirement that the state prove that the defendant was aware of the illicit nature of the drugs.


text:
    Joshua WEBB, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 4D05-1409.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Howard M. Talenfeld and Tracey K. McPharlin of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, for appellee.
   WARNER, J.

Joshua Webb appeals an order of an administrative hearing officer denying his application for Medicaid Waiver Services through the Agency of Persons with Disabilities program (APD). Webb claims that the officer erred in determining that he was not retarded, because the officer relied solely upon one full scale IQ test, without consideration of Webb’s other test scores. We conclude that the officer applied a standard for eligibility contrary to the applicable statute and to the agency’s published interpretations. We therefore reverse.

Joshua Webb, born in 1987, has been in foster care since the age of nine after having been removed from his mother’s home and declared a dependent. He has a troubled past, including a history of left brain injury, emotional dysfunction, depression, and behavioral problems, and a long juvenile arrest record. After being placed in state care, his behavior seemed to improve somewhat, but he continued to have other problems.

Four neuropsychological evaluations have been performed on him. In 1997, when he first entered DCF care at age ten, psychologists from Nova Southeastern University performed an evaluation, testing him using the Wechsler Intelligence Scale for Children. Webb received a verbal IQ score of 66, a performance IQ score of 81, and a full scale IQ score of 71. (The full scale IQ is a mathematically derived combination of the other individual scores.) In 2003, the Dependency Court judge ordered another test, also performed by Nova. This time Webb’s scores revealed a verbal IQ of 66, a performance IQ of 75, and a full scale IQ of 69. A third evaluation of Webb took place in August 2004 at the request of the Agency when Webb sought a waiver to obtain community services. This testing was performed by Dr. Janice Wilmoth, using the Wechsler Adult Intelligence Scale. Webb obtained the following scores: a verbal IQ of 77, a performance IQ of 91, and a full scale IQ of 82. Dr. Wilmoth concluded that Webb “no longer meets the standards to be deemed mildly mentally retarded.” A final evaluation was performed by Dr. Appel who had been appointed by the Dependency Court to make a second evaluation of whether Webb was mentally retarded and met the waiver requirements. She used the Wech-sler Intelligence Scale for Children, and Webb scored a verbal IQ of 66, a performance IQ of 81, and a full scale IQ of 71.

The Agency denied Webb’s request for a waiver, based upon Dr. Wilmoth’s testing results. Webb requested a hearing before an administrative hearing officer. The issue for the hearing officer to determine was whether Webb was developmentally disabled within the meaning of the Agency for Persons With Disabilities program.

At the hearing, Brian Moore, the APD counselor who determined Webb’s eligibility for the program, testified that he relied on the Support Coordination Guide Book in determining Webb’s eligibility. The Guide Book provides that “no single score or combination of scores, tests or procedures is to be used as the sole criterion for determining eligibility.” Additionally, the Guide Book provides, in pertinent part:

Any I.Q. score that is three to five points below or above 70 is to be accompanied by an interpretation of the following criteria: ... 2. The district developmental services program has the authority to determine eligibility without additional testing if the applicant’s history indicates:
a. the applicant is or has received special education classes designed to address the needs of people who have a diagnosis of mental retardation or
b. the applicant’s educational records indicate that the person tested in the range of mental retardation, both intellectually and adaptively, prior to the age [of] 18 and there is no documentation that conditions other than mental retardation are responsible for the class placement or depressed scores.

Despite the Guide Book’s direction to look at all the scores, Moore testified that he was instructed by the Department psychologists to use the full scale IQ scores. As a result, Moore himself placed more emphasis on the full scale than the other scores. Because Moore considered Webb’s history to be close on whether he qualified for the waiver without further testing, the counselor ordered the testing which was performed by Dr. Wilmoth. After receiving those scores, he denied the application based upon Dr. Wilmoth’s conclusion that Webb was not mentally retarded.

In Dr. Wilmoth’s testimony at the hearing, she stood by her testing and rejected the suggestion that Webb’s scores were inflated due to the “practice effect” of Webb having taken other intelligence tests. She extensively interviewed Webb regarding his prior history in addition to the testing that she performed. She used the full scale score as a portion of her analysis, combined with scales of adaptive functioning, designed to measure his ability to perform basic tasks of living. Based upon her testing, she determined that he did not meet the criteria for mental retardation. She used the Florida statutory definition of retardation, which requires test scores that are two or more standard deviations below the mean on a standardized intelligence test. She did not use a single score but relied on the full scale score combined with the adaptive functioning test. She opined that Webb’s lack of functional skills were the result of an emotional disturbance, not mental retardation.

Dr. Appel strenuously disagreed with a determination that Webb was not mentally retarded. She looked to Webb’s verbal IQ score of 66 when he was ten as well as his scores in 2003 and explained that under federal Social Security regulations, if any of the three scores on a standardized IQ test fall below 70, the individual qualifies as being mentally retarded. She also reviewed the 2003 tests, conducted her own tests, and concluded that at least one score from all of the tests other than Dr. Wil-moth’s would qualify Webb as being mentally retarded. She attributed Dr. Wil-moth’s scores to the “practice effect” and concluded that Dr. Wilmoth’s testing was “totally inconsistent” with the other testing done on Webb.

The hearing officer issued an opinion in which he “considered” the evidence of both Dr. Wilmoth and Dr. Appel, including the “practice effect” argument along with all of the other arguments. He quoted from the statutory definitions and made the following conclusions:

In this case, the petitioner has the burden of proof as an applicant to show that he qualifies for the program, as explained in the Florida Administrative Code at 65-2.060. It is determined that this burden has not been met. According to the cited Statute, retardation means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. Also included in the definition is significantly subaverage general intellectual functioning with a performance that is two or more standard deviations from the mean score on a standardized intelligence tests.
The petitioner obtained a Full Scale I.Q. score of 82, prior to his eighteenth birthday. This indicates that he is functioning within the low ranges of below average intelligence, however he is not significantly subaverage in general intellectual functioning, with a performance which is two or more standard deviations from the mean score on a standardized intelligence test. After careful consideration, it is determined that the action of denying the application for the Agency For Persons With Disabilities Program (APD) Home and Community Based Medicaid Waiver Services, because the petitioner’s test scores do not place him in the mentally retarded ranges, is upheld.

From this order, Webb appeals, contending that the hearing officer applied an incorrect standard in evaluating the evidence.

When an agency determines an applicant is ineligible for services, the applicant has the right to a “fair hearing” under the provisions of Florida Administrative Code Rule 65-2.042, et seq. Pursuant to rule 65-2.056(3), “[t]he Hearing Officer shall determine whether the action taken by the Agency was correct at the time the action was taken.” The burden of proof is on the applicant in cases where the Department denies an application. Fla. Admin. Code R. 65-2.060.

We apply a deferential standard of review to factual conclusions of a hearing officer in disability cases but not to conclusions of law, including the proper standards to apply to the disability determination. See Axilrod v. Dep’t of Children & Family Servs., 799 So.2d 1103 (Fla. 4th DCA 2001).

Webb maintains that both the agency and the hearing officer erred in determining that Webb was not mentally retarded by relying exclusively upon one full scale IQ score which did not fall below two standard deviations from the mean test score on a standardized intelligence test. Webb points out that he had multiple other tests which met that standard and argues that reliance on the full scale score only is precluded by section 393.063(38), Florida Statutes (2004). He considers the hearing officer’s reference to the full scale IQ score as setting the legal standard upon which he determined the issue.

Pursuant to the Home and Community Based Services Waiver Act, Title XIX of the Social Security Act, 42 U.S.C. § 1396n(c), Congress has authorized certain persons with developmental disabilities to receive Medicaid services in a community setting. This Act enables the Secretary of Health and Human Services to grant a waiver to a state under which approved costs of home and community-based services are reimbursed for eligible individuals who elect to remain in their homes, but who otherwise would require care in an institutional facility. See 42 U.S.C. § 1396n(c); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1268 (11th Cir.2000).

Florida has elected to participate in the Home and Community Based Waiver Program. See Fla. Admin. Code R. 59G-13.080. To be eligible for the waiver program, an applicant must have a developmental disability as defined in Chapter 393, Florida Statutes. See Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, p. 2-2; Fla. Admin. Code R. 59G-13.080(12) (incorporating the handbook by reference).

The hearing officer was charged with determining whether the agency’s action in denying the benefits was correct when taken — that is, whether Webb was disabled within the statutory definition. A “developmental disability” is defined as “a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” § 393.063(10), Fla. Stat. (2004). The term “retardation” means “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” § 393.063(38), Fla. Stat. (2004). “Significantly subaverage general intellectual functioning” is in turn defined as “performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the agency.” § 393.063(38), Fla. Stat. (2004). Further, “Adaptive Behavior” is defined as “the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.” Id.

The agency has not adopted rules which specify the type of standardized intelligence test to utilize in determining “significantly subaverage general intellectual functioning.” Further, there are no rules with respect to the interpretation of intelligence tests for purposes of determining retardation, nor are there any other rules which govern the determination of retardation. Therefore, the statute alone determines the legal standard to apply. Thus, the criteria for determining developmental disability are: 1) a disorder or syndrome; 2) attributable to retardation; 3) constituting a substantial handicap; 4) which can reasonably be expected to continue indefinitely. The criteria for determining retardation are: 1) performance which is two or more standard deviations from the mean score on a standardized intelligence test; 2) existing concurrently with deficits in adaptive behavior; and 3) manifested before age 18.

The hearing officer failed to correctly apply the legal test of the statute. The criteria for determining retardation required only that the applicant obtain a qualifying score prior to his eighteenth birthday and concurrently exhibit deficits in adaptive behavior. Rather than focus on the scores which showed that Webb met this qualification, the hearing officer instead looked only to a score which- did not meet the statutory definition. He thus ignored the legal standard for retardation set forth in the statute. Because he went no further than determining that Webb obtained a score which would not constitute mental retardation under the statute, he did not make any other findings which would apply the standard correctly.

Where the applicant achieves a qualifying score more than two deviations below the mean score on a standardized intelligence test prior to his eighteenth birthday, which Webb did on several other tests, then the hearing officer must determine whether, concurrently, deficits in adaptive behavior were observed, and the officer must make a finding of fact on this issue. Next, the officer must determine whether the retardation manifests itself in a disorder or syndrome which constitutes a substantial handicap. Finally, the officer must determine whether the substantial handicap can reasonably be expected to continue indefinitely.

In Webb’s case, the hearing officer failed to make the necessary findings, given the legal standard set forth in the statute. The evidence was undisputed that on other tests Webb had scored in a range to meet the first criteria for retardation, and the hearing officer made no findings that the prior tests were invalid. Therefore, the hearing officer should have gone to the next criteria, namely determining whether he also exhibited deficits in adaptive behavior. The hearing officer failed to make any finding on this factor or on the remaining factors, including whether the disorder or syndrome may be reasonably expected to continue indefinitely.

It is clear that the hearing officer relied on the results of Dr. Wilmoth’s tests and her opinions. Those tests and opinions offer evidence on the other criteria which also must be met, namely whether the retardation observed results in a substantial handicap which can be reasonably expected to continue indefinitely. Dr. Wilmoth attributed Webb’s improved scores to a diagnosis of emotional disturbance, not retardation. With treatment his lower intelligence IQ would not continue indefinitely. Of course, there was other evidence, including the testimony of Dr. Appel, which disputed Dr. Wilmoth’s observations. However, the hearing officer did not make any findings on these other factors.

We reject Webb’s reliance on federal Social Security disability regulations which he claims would mandate his qualification as developmentally disabled because he scored below an IQ of 70 on one test. He suggests that the Florida Legislature, in using language identical to the definition of “mental retardation” in the Social Security regulations, necessarily intended the federal Social Security regulations to apply with respect to the interpretation of intelligence tests for purposes of determining retardation under Chapter 393 of the Florida Statutes. He simply argues that it is reasonable to assume that the Florida Legislature intended the Social Security regulations to apply because both Chapter 393 and the Social Security Administration utilize the standard definition of retardation set forth in the Diagnostic and Statistical Manual of Mental Disorders. However, Webb cites to no authority which indicates that the Florida Legislature intended regulations promulgated by the Social Security Administration to apply to Chapter 393.

Moreover, even if we were to apply the Social Security regulations in determining his eligibility for waiver services, his verbal IQ score of 66 in 1997 would not automatically qualify him for services under the disability standards in the Social Security regulations. The Social Security Administration has adopted rules regarding the interpretation of IQ tests to determine retardation for purposes of SSDI eligibility. The relevant Social Security regulation provides that, “[i]n cases where more than one IQ is customarily derived from the test administered, e.g., where verbal, performance, and full scale IQs are provided in the Wechsler series, we use the lowest of these in conjunction with 12.05.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, at § 12.00(D)(6)(c) (2006). Webb points to this language in arguing that he should be deemed eligible for waiver services as of 1997, when he received a verbal IQ score of 66.

Under provision 12.05 of the Social Security Administration’s Listing of Impairments, one basis for determining that a person has the required level of severity of mental retardation is if that person has:

D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.

20 C.F.R. Pt. 404, Subpt. P, App. 1, at § 12.05. Additionally, the Social Security regulations require any mental disability determination to be made on the basis of longitudinal evidence. See 20 CFR Pt. 404, Subpt. P., App. 1 12.00(D)(2) (“Need for longitudinal evidence. Your level of functioning may vary considerably over time. The level of your functioning at a specific time may seem relatively adequate or, conversely, rather poor. Proper evaluation of your impairment(s) must take into account any variations in the level of your functioning in arriving at a determination of severity over time. Thus, it is vital to obtain evidence from relevant sources over a sufficiently long period prior to the date of adjudication to establish your impairment severity.”). Even under the Social Security regulations, the results of one IQ test would not necessarily qualify a person as retarded. Therefore, even if we were to agree with Webb and apply the Social Security regulations, it is clear that additional fact-finding would be required in this case to determine if Webb had the required level of severity of mental retardation to qualify for services.

Although we reject Webb’s reliance on the Social Security disability regulations, we agree that the hearing officer used an erroneous legal standard in upholding the agency’s denial of his application for waiver services. Because the hearing officer did not use the correct legal standard as contained in the statute for determining whether Webb was developmentally disabled, we reverse and remand for further proceedings in accordance with this opinion.

GROSS and HAZOURI, JJ., concur.

      . Due to a statutory amendment by the legislature in 2006, the definition of retardation is now set forth in section 393.063(31), Florida Statutes (2006). See Laws of Fla. Ch.2006-227.


text:
    JSZ FINANCIAL COMPANY, INC., Appellant, v. Claire WHIPPLE, Appellee.
    No. 4D05-3916.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    J.H. Zidell of J.H. Zidell, P.A., Miami Beach, for appellant.
    Mike Pfundstein of Mike Pfundstein, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

In this third appeal regarding a void domesticated judgment, JSZ claims the trial court erred in awarding Whipple restitution of the amounts she was forced to pay to prevent execution on the void Texas judgment. JSZ claims that Whipple was required to claim restitution in her pleadings, which she did not. We affirm the order of the trial court as being within its inherent power and control over its judgments.

The facts of this case are thoroughly detailed in the two prior cases involving these parties. See Whipple v. JSZ Fin. Co., 717 So.2d 608 (Fla. 4th DCA 1998) (Whipple I); Whipple v. JSZ Fin. Co., 885 So.2d 933 (Fla. 4th DCA 2004) (Whipple II). To summarize the prior proceedings briefly, JSZ domesticated a Texas judg-raent and sought to enforce it. Whipple defended, claiming the Texas judgment was void for lack of personal jurisdiction. She also filed a counterclaim asserting its invalidity. While these were pending, JSZ levied a writ of execution on Whipple’s vehicle, forcing her to satisfy the judgment. The trial court then dismissed Whipple’s challenges to the judgment because of its satisfaction. In Whipple I, we reversed the dismissal because a challenge to the underlying judgment was not waived when satisfaction of the judgment was forced by levy while the challenge to the judgment was pending. When the case returned for determination on the merits, the trial court determined that the Texas court had personal jurisdiction and entered judgment in favor of JSZ. In Whipple II, we reversed, concluding that Texas did not have jurisdiction and the Texas judgment was not entitled to full faith and credit. We remanded for entry of a judgment in favor of Whipple.

On remand, Whipple moved for restitution of the amount she had paid to satisfy the judgment on the original forced levy, plus interest. JSZ disputed her entitlement to restitution, claiming that she had never requested restitution. The trial court granted restitution, citing to Sundie v. Haren, 253 So.2d 857 (Fla.1971), and entered judgment in favor of Whipple, which JSZ now appeals.

JSZ claims that because Whipple did not claim restitution in her pleadings, the court was precluded from granting restitution of the amounts Whipple paid to satisfy the judgment and prevent loss of her vehicle, citing Cardinal Investment Group, Inc. v. Giles, 813 So.2d 262, 263 (Fla. 4th DCA 2002). We do not think this case is governed by Cardinal or the other cases involving general pleading requirements. Instead, this case is controlled by the principles announced in Hazen v. Smith, 101 Fla. 767, 135 So. 813 (1931).

In Hazen, a plaintiff had recovered a verdict in his favor, and the defendant filed a motion for new trial. The plaintiff was able to reduce the verdict to judgment and to levy on it prior to the time the court heard the motion for new trial. Pursuant to the levy, the plaintiff obtained a check for the amount owed under the judgment, but before the plaintiff could negotiate it, the circuit court ordered that the check not be cashed until the motion for new trial was heard. By petition for writ of prohibition, the plaintiff challenged the trial court’s authority to make such an order.

The supreme court explained the authority of the circuit court to make orders regarding restitution involving its judgments:

It is also true that circuit courts have inherent power over their judgments and executions during the same term, and by section 4516, C.G.L., section 2829, R.G.S., the courts of this state are given express power to stay executions. See, also, Barnett v. Hickson, 52 Fla. 457, 41 So. 606.
The fact that plaintiff in execution after obtaining a verdict inaugurated a race with the law, and succeeded in having execution issued and money collected under it, did not defeat the jurisdiction of the court during the same term at which the verdict was rendered, to entertain a properly filed motion for a new trial, and to make such appropriate orders against the plaintiff in the case as would effectually prevent the plaintiff from defeating the purpose of the motion for a new trial by realizing the amount of the verdict before a ruling on it could be had.
Even after a judgment at law has been rendered and execution levied and the judgment fully collected, it has been held that if the judgment be later reversed or set aside by an appellate court, the nisi prius court has the right to order restitution to defendant so as to obviate the advantage obtained by plaintiff through the court’s error.
Indeed, it has been authoritatively determined that the court not only has such power, but that it is the court’s duty to exercise the power to order such restitution in proper cases, and this duty is enforceable by appropriate appellate proceedings taken in the name of the party entitled, when the court denies the power or refuses to exercise it token properly invoked.

Id. at 816 (emphasis added). See also Fla. E. Coast Ry. Co. v. State, 77 Fla. 571, 82 So. 136, 138 (1919); State ex rel. Hill v. Hearn, 99 So.2d 231, 233 (Fla.1957) (“[T]he rule appears to be quite clearly established that a trial court in a proper case may require restitution of money collected under a judgment when such judgment has been set aside by an appellate court”).

The authority for the trial court to order restitution arises from the inherent power of the courts to superintend their own judgments. It does not arise from the pleading requirements of litigants. Here, the trial court exercised its inherent authority to return the parties to the status quo prior to the institution of proceedings to collect on the void judgment. The fact that Whipple’s declaratory judgment did not contain allegations requesting restitution of the amounts paid on the void judgment does not prevent the circuit court from exercising its inherent authority, and in this case its obligation, to restore Whipple to her condition prior to the court’s errors. Any other result would, as in Hazen, give the plaintiff the advantage in the proceedings as a result of the court’s own errors. Although there are exceptions to this doctrine, particularly in domestic relations cases, see, e.g., Wall v. Johnson, 80 So.2d 362 (Fla.1955), those exceptions do not apply to this case, where it would be entirely inequitable not to provide for restitution.

JSZ also contends that Whipple should be precluded through judicial estop-pel from recovering restitution, because she has maintained different positions in these proceedings. This court recently summarized the general rule of judicial estoppel in Florida as follows:

A claim or position successfully maintained in a former action or judicial proceeding bars a party from making a completely inconsistent claim or taking a clearly conflicting position in a subsequent action or judicial proceeding, to the prejudice of the adverse party, where the parties are the same in both actions....

Grau v. Provident Life & Acc. Ins. Co., 899 So.2d 396, 400 (Fla. 4th DCA 2005) (footnote omitted) (emphasis added). Here, it appears that both parties have made statements in their briefs in prior appeals inconsistent with the ones they are now espousing. Nevertheless, neither position was successfully maintained, because this court never reached the merits of the restitution issue in either prior proceeding. Thus, judicial estoppel does not apply. We affirm as to the remaining issues raised.

Affirmed.

KLEIN and GROSS, JJ., concur.


author: FULMER, Chief Judge.

text:
    In the Interest of T.B., a child. N.D., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D05-6206.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2006.
    John S. Patterson of Hagen & Patterson, P.A., Bartow, for Appellant.
    Douglas B. Sherman, Bartow, for Appel-lee.
   FULMER, Chief Judge.

N.D., the Mother, appeals from an adjudication of dependency as to her daughter, T.B. Because we conclude that the evidence was legally insufficient to support the adjudication, we reverse the trial court’s Order of Adjudication, Findings of Fact, Disposition, and Acceptance of Case Plan.

Facts and Procedural History

T.B. was sheltered in August 2005 when she was just over one year old. The Department of Children and Family Services filed a Verified Petition Alleging Dependency, listing a single count of neglect against the Mother based on three theories: T(A) engaging in or permitting incidents of domestic violence to occur in the presence or proximity of T.B.; I(B) having a chronic or severe substance abuse problem that demonstrably adversely affects T.B.; and I(C) having no stable place of residence. At the adjudicatory hearing, after the Mother had moved for a judgment of dismissal following the Department’s case-in-chief, the Department stipulated to a dismissal of count I(A), and the court granted the motion as to count I(B). Ultimately, the court found T.B. dependent as to the Mother by a preponderance of the evidence, based on the following findings:

The Mother, [N.D.], neglected the Child by depriving the Child, or allowing the Child to be deprived of, necessary food, clothing, shelter, or medical treatment or permitting the Child to live in an environment where such deprivation or environment to be in danger of being significantly impaired in the following manner [sic]:
(A) The Mother has no stable place of residence.
These activities and/or environments, either individually or collectively, cause the Child’s physical, mental or emotional health to be in danger of being significantly impaired.

The order originally read:

The Mother, [N.D.], neglected the Child by depriving the Child, or allowing the Child to be deprived of, necessary food, clothing, shelter, or medical treatment or permitting the Child to live in an environment where such deprivation or environment caused the Child’s physical, mental or emotional health to be significantly impaired or to be in danger of being significantly impaired in the following manner: ..

Using a pen, the trial judge struck out the phrase shown emphasized here and initialed the change in the margin of the order. As a result of this revision, the remaining language became garbled. Judging from the stricken text itself and the discussion among the court and counsel at the disposition concerning how the original written order should be altered, it appears that the intention was to delete any findings as to existing neglect, see § 39.01(14)(a), Fla. Stat. (2004), and retain findings as to prospective- neglect, see § 39.01(14)(f). However, to ensure a complete analysis, our discussion will address both existing neglect and prospective neglect.

Discussion

The Department is required to establish a child’s state of dependency by a preponderance of the evidence. § 39.507(1)(b); Fla. R. Juv. P. 8.330(a). “A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.” In re M.F., 770 So.2d 1189, 1192 (Fla.2000).

Section 39.01(14) provides that a

“[e]hild who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
(a) [t]o have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians;
(f) [t]o be at substantial risk of imminent abuse, abandonment, of neglect by the parent or parents or legal custodians.

Here, the Department’s petition alleged only neglect, not abuse or abandonment. Neglect occurs

when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.

§ 39.01(45).

At the adjudicatory hearing, the testimony concerning the Mother’s residential history was given by the Mother herself. The Mother testified that for about three years prior to the events that gave rise to the sheltering of T.B., she lived with her own mother at a certain address. T.B. was born toward the end of this period. In late 2004 or early 2005, when T.B. was several months old, the Mother moved out to live with her boyfriend. However, because the boyfriend was violent toward the Mother, this arrangement lasted only a month, after which she once again moved back with her mother. She then moved to a different residence, along with her mother and her mother’s new boyfriend. The Mother testified that she had to move out because “they told me I couldn’t stay there” when her mother was to serve as a shelter placement for T.B. The Mother moved to her paternal grandmother’s home in Virginia, where her father also lived.

We agree with the Mother’s argument that these several moves, in and of themselves, do not satisfy the statutory definition of neglect found in section 39.01(45). No evidence was presented to demonstrate that the residential changes caused T.B. to be deprived of food, clothing, shelter, or medical treatment or that T.B.’s environment had caused her health to be significantly impaired. We note that there were fewer moves in this case than in In re E.B., 834 So.2d 415, 416-17 (Fla. 2d DCA 2003), in which we held that the mother and child’s seven moves in eight months did not rise to the level of statutory neglect. As such, we conclude that the evidence was insufficient to support an adjudication of dependency based on existing neglect pursuant to section 39.01(14)(a).

We also conclude that this record does not support the adjudication of dependency based on prospective neglect. “While prospective neglect or abuse can be a basis for an adjudication of dependency, the Department must meet the statute’s imminency requirement.” In re J.L., 824 So.2d 1023, 1025 (Fla. 2d DCA 2002); see § 39.01(14)(f). “Prospective” means likely to happen or expected; “imminent,” referring to a narrower timeframe, means impending or about to occur. J.L., 824 So.2d at 1025. The courts have generally required that the Department demonstrate a nexus between the parent’s alleged problem (here, the Mother’s alleged lack of a stable residence) and the potential for neglect of the child in the future. See, e.g., J.L., 824 So.2d at 1025 (reversing adjudication of dependency after concluding that the failure of the father, who suffered from diabetes, hypertension, and other health problems, “to follow all directions as to his own health regimen does not necessarily mean that he will neglect [his child’s] needs”); E.M.A v. Dep’t of Children & Families, 795 So.2d 188 (Fla. 1st DCA 2001) (affirming finding of dependency when expert testimony established that the father’s willful drug use and refusal to take prescribed medications would inevitably lead to a manic episode, placing his children at risk of neglect or abuse); Richmond v. Dep’t of Health & Rehabilitative Servs., 658 So.2d 176 (Fla. 5th DCA 1995) (affirming adjudication of dependency based on substantial risk of imminent abuse or neglect when evidence demonstrated a nexus between mother’s mental health problems and her potential to harm her daughter).

Here, the Department failed to adduce evidence demonstrating that the Mother’s several changes of residence should compel a finding that T.B. was at “substantial risk of imminent ... neglect,” § 39.01(14)(f), i.e., that T.B. would likely “be deprived of, necessary food, clothing, shelter, or medical treatment” or be living in an environment that would cause her “physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired,” § 39.01(45). Other than the conclusory statement that “[t]he Mother has no stable place of residence,” the trial court’s written order contains no specific findings of fact that would support an adjudication of dependency based on prospective neglect. Section 39.507(6) requires that “[i]f the court finds that the child named in a petition is dependent, ... it shall incorporate that finding in an order of adjudication entered in the case, briefly stating the facts upon which the finding is made.” (Emphasis added).

The trial court’s oral findings recited at the end of the adjudicatory hearing are more detailed than the written findings but still do not support a finding of prospective neglect. The trial court stated, “[t]he evidence demonstrates that mom has not had a place of her own.” This is no doubt true of many young people, whether they live with others by choice or necessity. The court continued, “She has been in places that she could get kicked out of by people who own the places.” However, there was no evidence that the Mother’s mother “kicked her out” or would have done so; when the Mother left her boyfriend due to his domestic violence, she was able to return to her mother’s residence. We also note that the Mother’s move to Virginia was prompted by the Department advising her that she could not continue to reside with her mother while her mother served as a shelter placement for T:B. Further, although the Mother’s father initially testified that the Mother could not stay with him in Virginia if she were to begin using drugs, he qualified this statement by saying that he would not put her out on the street and would seek help for her. In fact, the Mother’s father expressed a strong willingness to help his daughter and his granddaughter. As the Mother’s counsel pointed out in his closing argument, the Department presented no evidence that the child was in any way adversely affected by moving to three different places within a three-year period or that the child is at imminent risk of neglect based on residential instability.

We conclude that the evidence was insufficient to establish either existing or prospective neglect by the Mother based on the Department’s allegation of residential instability and, therefore, reverse.

Reversed.

NORTHCUTT and CASANUEVA, JJ., Concur.

      . T.B.'s father was named in a separate count in the petition, but consented to dependency and is not a party to this appeal.

      . The Department’s appellate brief asserts that this case “is based upon risk of imminent abuse or neglect,” but the dependency petition alleges only neglect.


author: SILBERMAN, Judge.

text:
    Anthony KING, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D05-3636, 2D05-3639.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2006.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Anthony King challenges the denial of his motions to withdraw plea after sentencing for petit theft (case number 04-CF-22722) and driving while license revoked (habitual offender) (case number 04-CF-22907). Pursuant to Florida Rule of Criminal Procedure 3.170(l), King filed a pro se motion to withdraw his plea in each case. A rule 3.170(l) motion to withdraw plea filed by a criminal defendant who is represented by counsel is a nullity, unless the defendant makes an unequivocal request to discharge counsel. Johnson v. State, 932 So.2d 1169, 1170 (Fla. 2d DCA 2006); Grainger v. State, 906 So.2d 380, 382 (Fla. 2d DCA 2005); Mourra v. State, 884 So.2d 316, 321 (Fla. 2d DCA 2004). King made no request to discharge his counsel, and nothing in the record reflects that counsel had been discharged. Thus, the trial court should have treated each motion as a nullity and stricken the motions. Therefore, we reverse the denial of the motions to withdraw plea and remand for the trial court to strike the pro se motions. See Johnson, 932 So.2d at 1170; Grainger, 906 So.2d at 383.

Reversed and remanded with directions.

KELLY and WALLACE, JJ., Concur.


text:
    Angel RIVERA, Appellant, v. STATE of Florida, Appellee.n
    No. 4D05-1491.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Rehearing Denied Nov. 1, 2006.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing or Certification of Conflict

PER CURIAM.

We deny appellant’s, Angel Rivera, motion for rehearing and grant his motion for certification of conflict. We withdraw our previous opinion and substitute the following in its place.

Appellant, Angel Rivera, was found guilty of strong arm robbery and sentenced to thirty years in prison as a habitual felony offender. On appeal, Rivera argues that the trial court erred by denying his hearsay objection to the introduction of a letter from the Florida Department of Corrections reflecting his most recent release date from prison. The State offered the letter at sentencing in order to establish Rivera’s status as a habitual felony offender.

We affirm as to this issue based on this court’s recent en banc opinion in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006). As in Yisrael, we also certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

Affirmed.

GUNTHER, HAZOURI and MAY, JJ., concur.


author: /s/ Jeannette Theriot Knoll Justice, Supreme Court of Louisiana CALOGERO, C.J., CALOGERO, Chief Justice, JOHNSON, J.

text:
    In re Judge Charles ELLOIE.
    No. 2006-O-2364.
    Supreme Court of Louisiana.
    Oct. 11, 2006.
   ORDER

hOn recommendation of the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Judge Charles Elloie, Orleans Parish Criminal District Court, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const. art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately-

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana

CALOGERO, C.J.,

would grant respondent’s motion for time to respond to the Judiciary Commission’s recommendation for immediate disqualification from office and desists from voting regarding removal of x-espondent from office at this time for the reasons assigned.

JOHNSON, J., dissents and will assign reasons.

CALOGERO, Chief Justice,

granting respondent’s motion.

IH respectfully disagree with the majority’s denial of Respondent’s motion for time beyond seven days to respond to the Judiciary Commission’s Recommendation for Immediate Disqualification. Respondent on September 29, 2006, received his first notice that there had been filed in this court a recommendation for immediate disqualification. Upon receiving the notice, Respondent hired an attorney who — for reasons personal to that attorney — has filed a motion for time to file a brief in response to the Commission’s recommendation for immediate disqualification. While Respondent has in the past neglected to respond to the Judiciary Commission, he has not had the opportunity to respond to the Commission’s recent filing in this court. In my view, the court should refrain from ruling on the Judiciary Commission’s recommendation for immediate disqualification without benefit of the Respondent’s lawyer’s brief in opposition thereto; therefore, I would have granted Respondent’s motion for time and given him ten additional days to file his brief.

Furthermore, I would desist at this time from voting on the Commission’s recommendation for immediate disqualification. I would not remove Respondent from office by interim disqualification without his having presented his argument in brief for the court’s consideration. This is not to say that I disagree or agree with the Commission’s recommendation. I simply would not act on that recommendation 12without benefit of Respondent’s contrary arguments as presented for him by his attorney

JOHNSON, J.

dissents and assigns reasons:

hi would grant the Respondent’s motion which would allow his attorney additional time to respond to the Judiciary Commission’s Recommendation for Immediate Disqualification. The Respondent should be afforded the opportunity to respond to the Commission’s recent filing in this Court before removing him from office. I would not vote on the Commission’s recommendation for immediate disqualification without giving Judge Elloie this opportunity to be heard.


text:
    In re Alcie J. MAXWELL.
    No. 2006-OB-2423.
    Supreme Court of Louisiana.
    Oct. 11, 2006.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Alcie J. Maxwell, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations. Should petitioner fail to make a good faith effort to satisfy his financial obligations, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re Chambolyn Caryette TERRANCE.
    No. 2006-OB-2424.
    Supreme Court of Louisiana.
    Oct. 12, 2006.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Chambolyn Caryette Terrance, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of three years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that she has made a good faith effort to satisfy her financial obligations. Should petitioner fail to make a good faith effort to satisfy her financial obligations, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re Troy D. JACKSON.
    No. 2006-OB-2297.
    Supreme Court of Louisiana.
    Oct. 12, 2006.
   ORDER

The Office of Disciplinary Counsel (“ODC”) is currently investigating twenty-six complaints alleging serious professional misconduct by respondent, including his failure to refund unearned legal fees, improper handling of client funds, lack of diligence, and failure to communicate with clients. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Troy D. Jackson, Louisiana Bar Roll number 28620, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Troy D. Jackson for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Troy D. Jackson shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


text:
    In re John M. SARTIN, Jr.
    No. 2006-OB-2394.
    Supreme Court of Louisiana.
    Oct. 12, 2006.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that John M. Sartin, Jr., Louisiana Bar Roll number 11725, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Bernette J. Johnson

Justice, Supreme Court of Louisiana


text:
    In re James M. BANKS, Jr.
    No. 2006-B-0398.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   1 .ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James M. Banks, Jr., a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Prior to addressing the instant misconduct, we find it helpful to review respondent’s disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1989. Between 1991 and 1995, respondent was admonished by the disciplinary board on three occasions for failing to cooperate with the ODC in its investigations.

In 1999, we considered a proceeding involving a total of thirteen counts of formal charges against respondent for misconduct that occurred between 1994 and 1997. These charges alleged that respondent knowingly disobeyed obligations under the rules of a tribunal, presented an invalid credit card number as payment for a continuing legal education seminar and failed to remit payment for a year, issued client trust account checks to pay for two continuing legal education seminars, altered and forged a signature on a surety bond, and failed to cooperate with the ODC in numerous investigations. After considering the record, we disbarred respondent. In re: Banks, 99-0609 (La.5/7/99), 734 So.2d 613 (“Banks I”).

| ¡.FORMAL CHARGES

Count I

In May 1998, Terry St. Martin hired respondent to represent his brother, Jerry Johnson, in a criminal matter. Respondent agreed to accept the representation for a $1,500 fee. Mr. St. Martin had made six installment payments totaling $1,025 when he learned in August 1998 that respondent was ineligible to practice law and had done no work on Mr. Johnson’s case. Respondent failed to refund the unearned fee, despite Mr. St. Martin’s request that he do so, and failed to communicate with either Mr. St. Martin or Mr. Johnson. In September 1998, Mr. St. Martin filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (failure to refund an unearned fee), 1.15 (failure to provide an accounting), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count II

In October 1998, Tishlinn Sims hired respondent to represent Roderick Fountain in a criminal matter, paying him $1,500. Respondent did no work in the matter, failed to communicate with either Ms. Sims or Mr. Fountain, and failed to refund the unearned fee. In October 1998, Ms. Sims filed a complaint against | «respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, 1.15, 8.1(c), and 8.4(g) of the Rules of Professional Conduct.

Count III

In December 1998, Loretta Dawson hired respondent to represent her son, Herbert Dawson, in a criminal matter, paying him $1,453 towards a $1,500 fee. Respondent did no work in the matter, failed to communicate with either Ms. Dawson or her son, and failed to refund the unearned fee. In January 1999, Ms. Dawson filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, 1.15, 8.1(c), and 8.4(g) of the Rules of Professional Conduct.

Count IV

In February 1999, Elsie Williams hired respondent to represent her daughter, Mary Williams, in a criminal matter, paying him $500 towards a $1,000 fee. Respondent did no work in the matter, failed to communicate with either Ms. Williams or her daughter, and failed to refund the unearned fee. In March 1999, Ms. Williams filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, 1.15, 8.1(c), and 8.4(g) of the Rules of Professional Conduct.

\ ¿Count V

In February 1999, Shelia Fields hired respondent to represent her son in a criminal matter, paying him $700 towards a $1,000 fee. Respondent did no work in the matter, failed to communicate with either Ms. Fields or her son, and failed to refund the unearned fee. In March 1999, Ms. Fields filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, 1.15, 8.1(c), and 8.4(g) of the Rules of Professional Conduct.

Count VI

In October 1998, Louis Sutfield paid respondent $300 to assist him in having his name changed. Thereafter, respondent did no work in the matter and failed to refund the unearned fee. Respondent also misled Mr. Sutfield about the status of his efforts on the few occasions when Mr. Sutfield was successful in communicating with him. In April 1999, Mr. Sutfield filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, 1.15, 8.1(c), and 8.4(g) of the Rules of Professional Conduct.

Count VII

In September 1998, Roger Baptiste hired respondent to represent him in a criminal matter, paying him a total of $1,500. Thereafter, Mr. Baptiste was unable to locate respondent or speak with him. Furthermore, respondent did no work in the matter and failed to refund the unearned fee. In August 1999, Mr. Baptiste filed a |ficomplaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, 1.15, 8.1(c), and 8.4(g) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

On February 12, 2004, the ODC filed seven counts of formal charges against respondent. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

The hearing committee found the deemed admitted factual allegations support the rule violations alleged in the formal charges. In acting as he did, the committee found that respondent knowingly and intentionally violated duties owed to his clients or third parties and as a professional. He caused actual harm to each complainant and failed to cooperate with the ODC in its investigations. Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is a period of suspension.

The committee found the following aggravating factors present: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the Lrules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law (admitted 1989), and indifference to making restitution. The committee found no mitigating factors.

Given the numerous counts of misconduct, the predominance of aggravating factors, the lack of mitigating factors, and the disbarment in Banks I, the committee recommended that respondent be adjudged guilty of additional violations warranting disbarment, which may be considered should he apply for readmission.

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

Disciplinary Board Recommendation

After reviewing the record of this matter, the disciplinary board determined that respondent violated Rules 1.3, 1.4, 1.5, 8.1(c), and 8.4(g) of the Rules of Professional Conduct. In each count of the formal charges, respondent took fees from clients but performed no services. He also failed to communicate with his clients or third parties who paid his fees, and in those instances where he spoke to Mr. Sutfield, he misled him as to the status of his legal matter. Furthermore, respondent failed to refund any portion of any fee received from or on behalf of his clients. Finally, respondent repeatedly failed to cooperate with the ODC in its investigations.

Based on these findings, the board determined that respondent knowingly and intentionally violated duties owed to his clients and as a professional, causing significant harm. The baseline sanction, according to the ABA’s Standards for Im posing Lawyer Sanctions, is a period of suspension.

^Aggravating factors found by the board, are prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to' acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. Like the committee, the board found no mitigating factors present.

Under the facts of this case, the board recommended that respondent be permanently disbarred.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation, but on our own motion, we ordered the parties to submit briefs addressing the issue of an appropriate sanction. Specifically, we requested that the parties address whether the sanction in this case should be determined in light of respondent’s prior disbarment in Banks I. We also requested that the ODC “specifically address the timing of the institution of the formal charges against respondent.”

DISCUSSION

The deemed admitted facts in this case support a finding that respondent neglected legal matters, failed to communicate with his clients, failed to promptly refund unearned legal fees, and failed to cooperate with the ODC in its investigations. We note, however, that this misconduct occurred during the same general time frame as the misconduct forming the basis of respondent’s disbarment in Banks I. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we observed that it is generally inappropriate to disbar a previously disbarred attorney when the misconduct at issue occurred before or concurrently with the violations that resulted | sin the initial disbarment. Rather, when a second disciplinary proceeding involves misconduct that occurred during the same time frame as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously. Applying this procedure in the Chatelain case, we adjudged the respondent guilty of additional violations warranting disbarment which were added to his record for consideration in the event he applied for readmission after becoming eligible to do so. See also In re: Patrick, 01-1419 (La.3/15/02), 815 So.2d 804; In re: Gros, 98-0772 (La.3/15/02), 815 So.2d 799; In re: Parker, 00-3532 (La.3/15/02), 815 So.2d 794.

In determining an appropriate sanction in the instant case, we find the approach of Chatelain is instructive. Accordingly, our determination of a sanction will be based upon the appropriate sanction we would have imposed if these charges had been before the court at the same time as the charges in Banks I.

Had the instant charges been filed simultaneously with those charges forming the basis of respondent’s earlier disbarment, they would have only reinforced our view that respondent lacks the moral fitness to practice law and must be disbarred, both as a sanction for his misconduct and to protect the public. Therefore, as in Chatelain, we will adjudge respondent guilty of additional violations which warrant disbarment and which will be added to his record for consideration in the event he applies for readmission after becoming eligible to do so. We further emphasize that although respondent may have a procedural right to apply for readmission, this court retains absolute discretion to grant or deny such an application. In light of respondent’s lengthy history of egregious misconduct, this court will carefully scrutinize any application for readmission with a critical eye.

| qDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that James M. Banks, Jr., Louisiana Bar Roll number 19293, be adjudged guilty of additional violations which warrant disbarment and which may be considered in the event he applies for readmission from his disbarment in In re: Banks, 99-0609 (La.5/7/99), 734 So.2d 613, after becoming eligible to do so. Respondent is ordered to provide complete accountings and full restitution of all unearned fees to his victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

KNOLL and TRAYLOR, JJ., dissent and would impose permanent disbarment.

      . During this time period, respondent was ineligible to practice law from 8/8/97 to 9/21/98 for failing to comply with mandatory continuing legal education requirements; from 9/2/97 to 9/21/98 for failing to pay bar dues; and from 1/1/98 to 9/21/98 for failing to pay the disciplinary assessment.

      . The board determined that Rule 1.15 is inapplicable in this matter, because that rule does not require accountings of attorney's fees paid by or on behalf of clients.


text:
    DIXIE TOBACCO & CANDY CO., INC. v. Cynthia J. BRIDGES, as Secretary, Department of Revenue, State of Louisiana.
    No. 2006-CA-1501.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   ORDER

Considering the motion to dismiss the pending appeal filed by the appellant, and the response of the appellee,

IT IS ORDERED that the appeal in Dixie Tobacco & Candy Co., Inc. v. Cynthia J. Bridges, as Secretary, Department of Revenue, State of Louisiana, 06-CA-1501, be and hereby is dismissed.

IT IS FURTHER ORDERED that appellee’s request for additional relief is denied. Appellee failed to answer the appeal. See La.Code Civ. P. art. 2133.

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana