author: WALLACE, Judge.

text:
    Mariela Abreus ARMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4180.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2007.

      James Marion Moorman, Public Defender, and Sharon Morgan Yollrath, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Mariela Abreus Armas challenges her judgment and sentence for the first-degree felony of criminal use of personal identification. § 817.568(2)(e), Fla. Stat. (2003). Ms. Armas pleaded nolo contendere in accordance with a plea agreement negotiated with the State. We find, however, that the record does not support a first-degree felony conviction under the 2003 statute as charged because a plain reading of the statute does not allow the State to aggregate the dollar amounts involved from multiple victims. Therefore, we reverse the judgment and sentence.

I. THE FACTS

On July 30, 2003, law enforcement apprehended Ms. Armas immediately after she attempted to cash a counterfeit check at a Collier County bank. The check was drawn on the account of a local building company and made payable to Linda M. Coutts for $5082.23. For identification, Ms. Armas presented what appeared to be a valid Florida driver’s license issued in Linda M. Coutts’ name but displaying Ms. Armas’ photograph.

Using bank surveillance videotapes and thumbprint identification, investigators subsequently discovered that Ms. Armas was part of a large counterfeit check-cashing ring. They connected her to fourteen illegal transactions that had occurred between June 2, 2003, and July 30, 2003. In each of these transactions, Ms. Armas presented a forged check payable to Linda M. Coutts and attempted to cash the check using the same fraudulent Florida driver’s license. According to the record, the cheeks ranged in value from $2800 to $18,000. The checks were drawn on the bank accounts of eight individuals and four local business entities. According to the State, the amounts of the checks totaled $51,600. When confronted with evidence of the numerous illegal transactions, Ms. Armas admitted that she had knowingly used a fraudulent Florida driver’s license as identification to cash checks that she knew were forged.

II. PROCEEDINGS IN THE LOWER COURT AND PLEA AGREEMENT

A. The Charges

The State originally charged Ms. Armas with twenty-four offenses, including scheme to defraud, grand theft, uttering a forged instrument, unlawful possession of a license, and fraudulent use of personal identification. The State amended the charging document twice, and the trial court dismissed six of the charges. In the end, the State charged Ms. Armas with twenty-five felonies of varying degrees, all according to Florida Statutes (2003):

Criminal use of personal identification information (one count)- — $50,000 or more, section 817.568(2)(c), a first-degree felony.
'•Scheme to defraud (one count) — aggregate value of $50,000 or more, section 817.034(4)(a)(l), a first-degree felony.
Criminal use of personal identification information (eighteen counts)— less than $5000, section 817.568(2)(a), a third-degree felony.
Grand theft (five counts) — $300 or more, section 812.014(2)(c)(l), a third-degree felony.

B. The Plea Agreement

On August 4, 2005, more than two years after her arrest, Ms. Armas made a plea agreement with the State. Under the agreement, the State undertook to nolle pros the scheme to defraud charge (a first-degree felony) and all of the remaining third-degree felony charges. In return, Ms. Armas agreed to plead nolo contende-re to the first-degree felony charge for criminal use of personal identification information — $50,000 or more. In addition, Ms. Armas reserved her right to appeal specific rulings that the trial court had made against her on questions of law. Although these issues are more fully discussed below, the core of the parties’ dispute was (1) whether the State could aggregate the dollar amounts of the offenses to reach the $50,000 threshold level for count one, (2) whether Ms. Armas’ series of crimes constituted a continuing offense, and (3) if it was a continuing offense, whether the 2002 or 2003 version of the statutes should apply. This third question arose because section 817.568(2)(c), Florida Statutes (2003), the statute to which Ms. Armas pleaded nolo contendere, went into effect on July 1, 2003, midway through her series of fraudulent transactions.

C. The Strategies

In making the plea agreement that allowed Ms. Armas to reserve her right to appeal, each side was motivated by a specific strategy and an expected sentencing outcome. The State’s declared strategy was to combine the value of the underlying fourteen illegal transactions and obtain a single first-degree felony conviction that carried a statutorily defined five-year minimum sentence. The State was convinced that the provisions of the 2003 statute authorized the aggregation of the value of the underlying illegal transactions involving individuals:

(c) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual’s consent commits a felony of the first degree, ... if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud, perpetrated is $50,000 or more or if the person fraudulently uses the personal identification information of 20 or more individuals without their consent.

§ 817.568(2)(c), Fla. Stat. (2003) (emphasis added).

Ms. Armas’ declared strategy in pleading to the first-degree felony was to avoid a trial and to ensure that her maximum sentence would be five years in prison. Unlike the State, Ms. Armas believed that the 2002 version of the statute applied to her offense. Under the 2002 version, criminal use of personal identification is a third-degree felony. § 817.568(2)(a), Fla. Stat. (2002). Only where the amount of the injury or fraud perpetrated is $75,000 or more does the level of the offense rise to a second-degree felony. § 817.568(2)(b), Fla. Stat. (2002). For this reason, Ms. Armas maintained that she was guilty of only a third-degree felony, not a first-degree felony. By pleading with a reservation of her right to appeal, Ms. Armas could begin serving her first-degree felony sentence in the hope of a favorable appellate ruling that might result in the reduction of the length of the prison term she would have to serve.

D. The Stipulation and Agreed-Upon Outcome

Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) requires that “[a] defendant who pleads ... nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.” (Emphasis added.) For its part, the State stipulated at Ms. Armas’ plea hearing that the legal questions of aggregation and continuing offense were dispositive. Therefore, Ms. Armas was not required to move to withdraw her plea in order- to challenge her conviction and sentence.

In this case, the State and the defense agreed that Ms. Armas’ conviction for a first-degree felony would stand if she lost on appeal and that Ms. Armas’ conviction would be reduced to a third-degree felony under the 2002 statute if this court reversed the trial court’s rulings on aggregation and continuing offense. Moreover, the trial court accepted the plea agreement, approved the stipulations, and sentenced Ms. Armas to five years in state prison for the first-degree felony based upon this understanding.

III. DISCUSSION

A. The Changing Statute

From July 1, 2001, through June 30, 2003, Florida’s “Criminal use of personal identification information” statute provided that the unlawful use of any such information concerning an individual was a third-degree felony. When the amount involved exceeded $75,000, the level of the offense rose to a second-degree felony.

(2)(a) Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning an individual without first obtaining that individual’s consent, commits the offense of fraudulent use of personal identification information, which is a felony of the third degree ....
(b) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual’s consent commits a felony of the second degree, ... if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $75,000 or more.

§ 817.568(2)(a)-(b), Fla. Stat. (2002) (emphasis added).

Effective July 1, 2003, the legislature reduced the dollar-value threshold for a second-degree felony to $5000, and it added a first-degree felony subsection with a threshold level of $50,000. § 817.568(2)(b)-(c), Fla. Stat. (2003). In addition, the legislature added a second -factor that increases the felony level based on the number of victims. Id. In the new statute, when the individual victims number ten or more, regardless of the dollar amount involved, the offense constitutes a second-degree felony. Id. .Likewise, when the individual victims number twenty or more, the offense constitutes a first-degree felony. Id.

(b) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual’s consent commits a felony of the second degree, ... if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $5,000 or more or if the person fraudulently uses the personal identification information of 10 or more individuals without their consent.
(c) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual’s consent commits a felony of the first degree, ... if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $50,000 or more or if the person fraudulently uses the personal identification information of 20 or more individuals without their consent.

§ 817.568(2)(b)-(c), Fla. Stat. (2003) (emphasis added).

B. The Parties’ Arguments

Ms. Armas argues that the plain language of the statute contains no provision that allows the State to aggregate the dollar amounts taken from individual victims to reach the $50,000 threshold. She argues that if the legislature wanted to allow aggregation, it could have used language similar to that used in the statutes which criminalize a scheme to defraud as part of the Florida Communications Fraud Act. Ms. Armas argues that when the legislature amended the criminal use of personal identification information statute effective July 1, 2003, instead of specifically including language that allows for aggregation of dollar amounts to reach the dollar value threshold, the legislature chose to add an entirely separate factor based on the number of victims. Further, she notes that the legislature chose to retain the specific references to personal identification information concerning “an individual.” Based on these facts, she argues that the $50,000 value is a separate and distinct threshold that applies only to the injury or fraud perpetrated against a single individual and not to the new multiple-victim factor.

The State concedes that the new statute does not specifically authorize aggregating dollar amounts. It asserts, however, that when the legislature provided for multiple victims in the 2003 version, it demonstrated a legislative intent to allow aggregation. According to the State, Ms. Armas admitted to fraudulently cashing checks totaling over $50,000, which is a first-degree felony under the 2003 statute.

C. Statutory Construction

We cannot agree with the State’s argument in support of convicting Ms. Armas of a first-degree felony under the 2003 statute. Although the 2003 revision authorized aggregating the number of individual victims, it did not specifically allow for the aggregation of the dollar amounts involved among those multiple victims. Because the statute as written is susceptible to differing constructions, we must construe the statute in favor of the accused under the rule of lenity. § 775.021(1), Fla. Stat. (2002). Therefore, we are constrained to conclude that the $50,000 threshold can be applied only to the fraudulent use of a single individual's information and that using the personal information of twenty or more victims is a separate and discrete factor that also defines a first-degree felony.

D. Continuing Offense

As noted above, Ms. Armas properly reserved for appeal the issues of whether her series of crimes constituted a continuing offense and, if so, whether the 2002 or 2003 statute should apply. We need not consider these questions, however, because prohibiting the State from aggregating dollar amounts renders the issue of continuing offense moot. The evidence in the record does not reveal any offense, whether isolated or continuing, against any individual victim at or above the $50,000 threshold. Thus, the continuing offense concept does not provide a means to upgrade the level of Ms. Armas’ offense to a first-degree felony.

IV. CONCLUSION

Because none of Ms. Armas’ separate offenses against any individual was $50,000 or more and because the victims included only eight individuals, we find that there was no factual basis for her plea to the first-degree felony under the 2003 statute. Thus the trial court erred in accepting the plea. Instead, under the parties’ express agreement and stipulation at sentencing, Ms. Armas’ offense constituted a third-degree felony under the 2002 statute.

Accordingly, we reverse Ms. Armas’ first-degree felony conviction under section 817.568(2)(c), Florida Statutes (2003). In accordance with the plea agreement negotiated below, we remand this case to the trial court for the entry of a corrected third-degree felony conviction under section 817.568(2)(a), Florida Statutes (2002). The trial court is hereby instructed to resentence Ms. Armas as appropriate under the earlier version of the statute.

Before closing, we pause to emphasize that our disposition of this case is largely driven by the agreement of the parties that was approved by the trial court. The parties’ agreement is both unusual and irregular. Accordingly, the scope of our holding is necessarily limited by the peculiar circumstances of the proceedings below.

Reversed and remanded with instructions.

FULMER, C.J., and WHATLEY, J., Concur.

      .The trial court dismissed some of the charges because it found that the State had charged a single offense twice when a forged check contained two account holder names (e.g., husband and wife) for a jointly-held account.

      . The reservation of the right to appeal was made in accordance with Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i).

      . Ms. Armas also raises the issue of whether two $9000 cashier's checks that she allegedly obtained but never negotiated could be included in the aggregation and applied toward the $50,000 threshold. Because, however, we conclude that aggregation of dollar amounts obtained from different individual victims is not allowable under the statute, we need not address this question.

      . Counsel for Ms. Armas specifically stated the expectation that her client would "be subject to sentencing under the guidelines with the minimum of 21 months” if the earlier statute for a third-degree felony applied.

      . Normally, "[a]n issue is dispositive only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case.” Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986). In this case, however, if this court were to vacate Ms. Armas’ plea agreement and allow her leave to withdraw her plea, the State retains at least twenty-four other felony charges against Ms. Armas. See id. at 1359 n. 3. A trial on these charges could result in multiple guilty verdicts with the potential for significantly more prison time than the agreed upon five-year sentence. Arguably, therefore, the issues on appeal are not dispos-itive of Ms. Armas' entire case. Nonetheless, we treat them as dispositive because both sides have stipulated that they are dispositive of which statute and which sentence should be applied.

      . The scheme to defraud statutes allow aggregation under the following subsections:
      3. Amounts of value of separate properties obtained in one scheme to defraud, whether from the same person or from several persons, shall be aggregated in determining the grade of the offense under paragraph (4)(a).
      (4)(a) Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud, punishable as follows:
      1. If the amount of property obtained has an aggregate value of $50,000 or more, the violator is guilty of a felony of the first degree....
      § 817.034(3)(e)(3) — (4)(a)(l), Fla. Stat. (2003) (emphasis added).

      . In both the 2002 and 2003 versions of this statute, an individual is specifically defined as “a single human being and does not mean a firm, association of individuals, corporation, ' partnership, joint venture, sole proprietorship, or any other entity.” § 817.568(l)(d).

      . We note that subsection (b) of the 2003 statute provides a $5000 threshold, and a number of the fraudulent checks cashed after July 1, 2003, exceeded this amount. § 817.568(2)(b). Arguably, therefore, there may have been a factual basis for a second-degree felony conviction. However, neither party argued this option to the trial court. They also failed to include it in the plea agreement and stipulations. Based on the agreement made by the parties, resentencing Ms. Armas for a second-degree felony is not an option on remand.


source: Caselaw Access Project

author: CANADY, Judge.

license: Public Domain

text:
    Charles L. McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5442.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2007.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles L. McGee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Charles L. McGee appeals his judgment and sentence, specifically challenging an order denying his motion to withdraw plea filed after sentencing. Because we lack jurisdiction, we dismiss McGee’s appeal.

On August 24, 2004, McGee pleaded no contest to charges of felony fleeing to elude law enforcement and resisting arrest without violence. In the judgment and sentence rendered August 24, 2004, McGee was sentenced to 71.25 months in prison. On September 29, 2004, McGee filed his motion to withdraw plea. McGee filed a second motion to withdraw plea on October 1, 2004. On August 16, 2005, the trial court denied the motions as untimely since they were filed beyond the 30-day time period set forth in Florida Rule of Criminal Procedure 3.170(1). On October 5, 2005, the trial court denied McGee’s motion for rehearing and clarification with respect to the trial court’s order of August 16, 2005. McGee then filed his notice of appeal on November 2, 2005.

Pursuant to Florida Rule of Appellate Procedure 9.140(b)(3), defendants in criminal cases are required to commence their appeals within 30 days of rendition of a written order imposing sentence. In this case, the time to file an appeal expired on September 23, 2004. If McGee had timely filed his motion to withdraw plea, the time for filing his notice of appeal would have been tolled. See Fla. R.App. P. 9.020(h)(1). However, untimely motions do not toll the time to file an appeal. See Thomas v. State, 884 So.2d 309, 311 (Fla. 2d DCA 2004). Consequently, McGee’s November 2, 2005, notice of appeal was untimely as to his August 24, 2004, judgment and sentence. We therefore dismiss this appeal for lack of jurisdiction without prejudice to any right McGee might have to file a belated motion pursuant to Florida Rule of Criminal Procedure 3.850.

Dismissed.

ALTENBERND and SALCINES, JJ., Concur.


text:
    ALPAUGH PLUMBING & SUPPLY OF TAMPA, INC., a Florida corporation, Appellant, v. THE FEE-WALTERS CORPORATION, a Florida corporation, and James N. Clark and Edwina Clark, jointly and severally, Appellees.
    No. 2D06-229.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2007.

      Charles Y. Barrett III and Frederick W. Vollrath, Tampa, for Appellant.
    Matthew Mudano of Ogden & Sullivan, P.A., Tampa, for Appellees.
   CANADY, Judge.

Alpaugh Plumbing and Supply of Tampa, Inc., appeals an amended final judgment entered against the appellees, The Fee-Waiters Corporation, James N. Clark, and Edwina Clark, and the trial court’s denial of Alpaugh’s motion for attorneys’ fees and costs. Alpaugh raises three claims on appeal, only one of which has merit. We affirm the amended final judgment but reverse the order on attorneys’ fees and costs and remand for further proceedings.

On March 11, 2002, Alpaugh filed a complaint against the appellees. In the complaint, Alpaugh alleged that it had performed work pursuant to a contract with The Fee-Waiters Corporation on a residence being constructed on the Clarks’ real property. • In count one, Alpaugh sought to enforce a construction lien on the Clarks’ real property, and in count two, Alpaugh alleged a claim for damages. Following a nonjury trial, the trial court entered a judgment in favor of Alpaugh on October 20, 2004. The trial court awarded Alpaugh $9070.41 in damages and found “that Alpaugh’s lien is not fraudulent ... and ... that the property did not suffer any diminution in value.” However, the trial court did not dispose of Alpaugh’s claim for enforcement of the construction lien.

On March 15, 2005, Alpaugh filed a motion for attorneys’ fees and costs and a motion for entry of final judgment of foreclosure. On June 15, 2005, the trial-court denied the motion for attorneys’ fees and costs on the basis that it was not filed within 30 days of the October 20, 2004, judgment as required by Florida Rule of Civil Procedure 1.525.

The appellees filed a motion to amend final judgment on October 17, 2005, requesting the trial court to correct its calculation of prejudgment interest awarded in the final judgment. On December 9, 2005, the trial court entered an amended final judgment, correcting the amount of prejudgment interest awarded to Alpaugh and also ordering foreclosure of the lien in the event of nonpayment of damages by the appellees. On December 23, 2005, Al-paugh filed another motion for attorneys’ fees and costs. On January 9, 2006, the trial court denied Alpaugh’s motion, concluding that it was without jurisdiction to award attorneys’ fees and costs under rule 1.525 and that the correction of the erroneous calculation of prejudgment interest did not resurrect the trial court’s jurisdiction.

On appeal, Alpaugh argues that the judgment entered on October 20, 2004, was nonfinal because it did not dispose of the claim for lien foreclosure. Alpaugh contends that its December 23, 2005, motion for attorneys’ fees and costs was timely because it was filed within 30 days of the amended final judgment entered on December 9, 2005. Alpaugh claims that the trial court’s December 9, 2005, order did more than just recalculate the prejudgment interest included in the damages award of the October 20, 2004, judgment because it ruled on the lien foreclosure claim.

The appellees respond that the amended final judgment only corrected the prejudgment interest and did not reach any of the underlying claims of the complaint. The appellees assert that the amended final judgment did not trigger Alpaugh’s right to attorneys’ fees and costs by restarting the 30-day clock under rule 1.525.

The trial court’s “final judgment” entered on October 20, 2004, did not grant foreclosure of the lien. While ruling that the lien was not fraudulent (fraud having been raised as an affirmative defense by the appellees), the judgment did not rule on whether Alpaugh could foreclose on the lien. A claim for foreclosure of a lien is separate from other claims for damages. See, e.g., Schabert v. Montaltos, 445 So.2d 1136 (Fla. 2d DCA 1984) (contractor failed to establish a mechanic’s lien but obtained a money judgment for breach of contract); Mershon v. Buckles-Thompson, Inc., 383 So.2d 280, 280 (Fla. 5th DCA 1980) (“There is sufficient evidence to sustain the judgment on the oral contract but not for foreclosure of a mechanic’s lien.”). In Doug Hambel’s Plumbing, Inc. v. Conway, 883 So.2d 375, 376 (Fla. 4th DCA 2004), the trial court originally entered a judgment for and awarded damages to the plaintiff but denied plaintiffs request for a mechanic’s lien. The Fifth District reversed the denial of the mechanic’s lien, and the trial court entered a final judgment imposing a mechanic’s lien. Id. The plaintiff sought attorneys’ fees under section 713.29, Florida Statutes (2003). 883 So.2d at 376. The Fifth District held that “[i]t was not until this court reversed the denial of the lien ... and the trial court entered a judgment on the lien that the entitlement to fees under this statute ripened.” Id. Similarly, Alpaugh’s entitlement to attorneys’ fees on the lien foreclosure claim did not ripen until the trial court disposed of that claim in the amended final judgment.

Alpaugh’s December 23, 2005, motion for attorneys’ fees was timely filed because it was filed within 30 days of the amended final judgment. See Fla. R. Civ. P. 1.525 (“Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment....”); McFarland & Son, Inc. v. Basel, 877 So.2d 964, 966 (Fla. 5th DCA 2004) (holding that the judgment referred to in rule 1.525 “must be the judgment under which the party claims the right to” costs or fees). The judgment entered on October 20, 2004, was nonfinal because it did not dispose of all of the claims in the complaint. See Allie v. Ionata, 503 So.2d 1237, 1240 (Fla.1987) (“A final judgment is one that determines the rights of the parties and disposes of the case on its merits, leaving nothing more to be done in the cause except execution.”); cf. Caldwell v. Finochi, 909 So.2d 976 (Fla. 2d DCA 2005) (holding that the order on the wife’s petition for modification of child support was a final order because it disposed of all the issues except for the ancillary issue of attorneys’ fees). Therefore, the trial court erred in concluding that the amended final judgment merely corrected the prejudgment interest awarded by the trial court in the original judgment and in denying Al-paugh’s December 23, 2005, motion for attorneys’ fees and costs as untimely filed.

We reverse the denial of the motion for fees and costs and remand for further proceedings on the motion.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and SALCINES, JJ., Concur.


author: PER CURIAM.

text:
    Willie BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2811.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Willie Bush, Indiantown, pro se.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from the summary denial of a petition for writ of mandamus filed against Philip J. Massa, Esq. in which the petitioner, Willie Bush, requested that Massa turn over to him his complete record on appeal, including transcripts, in connection with case no. 4D03-1499, the appeal of Bush’s conviction and sentence. In that case, Massa was Bush’s specially appointed appellate counsel. Bush previously had written Massa to request the documents; Bush served his petition and his brief on Massa, but Massa has filed no brief in connection with this appeal. The trial court did not issue an order to show cause and denied the petition without any explanation. We reverse.

As Bush’s specially appointed public defender, Massa was an agent of the state, and he may be compelled by mandamus to turn over to his former client the records and transcripts which were prepared for his client at public expense. See, e.g., Ramos v. State, 757 So.2d 616 (Fla. 3d DCA 2000); Colon v. Irwin, 732 So.2d 428 (Fla. 5th DCA 1999); Pearce v. Sheffey, 647 So.2d 333 (Fla. 2d DCA 1994). Therefore, we reverse with directions to the trial court to issue an order to show cause to the respondent.

Reversed and Remanded for further proceedings.

STEVENSON, C.J., WARNER and KLEIN, JJ., concur.


author: STEVENSON, C.J.

text:
    Lewis B. TUNNAGE, Appellant, v. Clifford K. GREEN, et al., Appellees.
    No. 4D05-4228.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rehearing Denied March 2, 2007.

      Paula Revene of Paula Revene, P.A., Fort Lauderdale, for appellant.
    Robert Garven, Coral Springs, and Cos-tell Walton, Jr., of the Law Offices of Costell Walton, Jr., Fort Lauderdale, for appellee Clifford K. Green.
   STEVENSON, C.J.

Appellant, Lewis Tunnage, executed two quitclaim deeds that purported to convey his interests in three lots to appellee, Clifford Green. Only the notary signed those deeds as a subscribing witness. Thereafter, according to Green, Tunnage, or someone on his behalf, allegedly forged Green’s signatures on deeds reconveying the lots back to Tunnage. Green subsequently filed a complaint that alleged fraud concerning the execution of the first set of deeds, sought to quiet title to the property, and requested reasonable attorney’s fees. Green prevailed at the jury trial and Tun-nage now appeals. Because the initial set of deeds were defective on their face and failed to convey legal title to Green, we reverse the quiet title judgment. Further, we reverse the award of section 57.105 attorney’s fees to Green. We affirm the jury verdict and consequent judgment for fraud, even though the jury awarded no damages.

According to the complaint, Tunnage and Green engaged in a joint venture in which Green agreed to manage and repair certain property owned by Tunnage in exchange for a share of the rental income. Green alleged that, at some point, instead of paying Green a share of the net income for his repair and maintenance work, Tun-nage agreed to give him lots 23 through 25 and signed quitclaim deeds to that effect. The only witness to sign the deeds was the notary, Sandra Stokes. A few months later, while maintaining the property and paying the assessed taxes, Green discovered that Tunnage recorded two quitclaim deeds that conveyed the property back to himself. Based on those facts, Green sued Tunnage to quiet title, claiming ownership of the lots, and for fraud, contending that Tunnage maliciously gave him the initial deeds even though Tunnage knew the deeds lacked the required number of signatures. Tunnage maintained that he only gave Green the quitclaim deeds to facilitate Green’s management of the property in dealing with tenants, the police, code enforcement authorities, and the like. Tunnage testified that since he never intended to give Green the lots, only the notary signed the deeds as a witness. After deliberations, the jury returned a verdict that quieted title in Green, found that Tunnage committed fraud, and determined that Green suffered no damages.

We first address Tunnage’s argument that the trial court erred by denying his pre-trial motion for summary judgment. Tunnage asserted in this motion for summary judgment that the deeds he gave Green could not convey title because they were not signed by two subscribing witnesses as required by Florida law. Florida Statutes section 689.01 (2005), provides that a deed transferring an interest in real property must be signed in the presence of two subscribing witnesses. Green admits that this requirement was not complied with, but asserts that equitable estoppel prevents Tunnage from challenging the deeds’ validity.

Equitable estoppel or estoppel in pais is the principle by which a party who knows or should know the truth is absolutely precluded, both at law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them....

19 Am.Jur., Estoppel § 34, at 634.

In the instant case, Green purports to use the doctrine of equitable es-toppel to perfect his interest in the property. The Florida Supreme Court has stated that “[i]t is well settled that the principles of estoppel may be applied in defense of a title, but not to establish one.” City of Naples v. Morris, 71 So.2d 905, 905 (Fla.1954). “ ‘The purpose of the rule that title may not be created by estoppel is to prevent the uncertainty of titles which would arise if ... parol evidence of an estoppel could be introduced to show that the paper title is not what it appears to be.’ ” Kerivan v. Fogal, 156 Fla. 92, 22 So.2d 584, 586 (1945) (quoting Stone v. Culver, 286 Mich. 263, 282 N.W. 142, 143 (1938)). Conversely, “[wjhen a person has so acted as to make it appear from the face of a deed that a certain title has been created, he may be estopped to introduce parol evidence to show that that is not the actual title.” Stone, 282 N.W. at 143.

In Cox v. La Pota, 76 So.2d 662, 664 (Fla.1954), our supreme court held that where the vendors, who were husband and wife, allowed their broker to have a contract for the sale of a ranch improperly witnessed, they were estopped from repudiating the conveyance on the ground that the contract had not been signed by them in the presence of two witnesses.

At the time the contract was signed the appellants knew of the law that it provided for two witnesses. The husband made the statement to his broker, “There is nobody here to witness the contract but if you like we can go down the road to a neighbor of mine and he can witness it.” The broker said, “This is all right. I have a couple of barbers down near the office that do this all the time for me.” Thereupon three copies of the contract were delivered to the broker who had his daughter and mother-in-law sign as witnesses to the appellants’ signatures. The contract was then mailed to the appellees for execution. When the three copies were received by the appellees in Chicago, each copy showed the signatures of the appellants and two witnesses to the appellants’ signatures.

Id. at 663. In the vendees’ suit for specific performance, the court reasoned that the vendors were estopped to raise the deficiency in the contract since they had caused it. Id. In Cox, the doctrine of estoppel came into play in defense of the vendees’ title, where, unlike the instant case, the contract was regular on its face as it had the appropriate number of witnesses.

Williams v. Foerster, 335 So.2d 810 (Fla.1976), is also instructive. In Williams, the husband, who was an attorney and familiar with the legal requirements for conveying real estate, deliberately gave his wife a deed that purported to convey to her the marital home. Despite the husband’s alleged superior knowledge of the law, the court held that the deed was ineffective in part because the undisputed evidence showed that the deed contained the signature of only one subscribing witness. See id. at 812. The majority rejected the exhortations in Justice Roberts’ dissent that the husband was “estopped from contesting the validity of the deed” for want of an attesting witness since “he executed the deed in a knowingly defective manner as a trick to deceive his wife.” Id. at 814, 815.

In view of the foregoing authorities, we conclude that, under Florida law, equitable estoppel is not available to create an interest in real property when a deed on which the proponent relies is substantially defective on its face. Accordingly, the trial court erred by denying Tunnage’s motion for summary judgment. Our reversal of this issue moots Tunnage’s arguments regarding his motion for a directed verdict on the quiet title claim, the denial of his requested jury instruction, and the injunction prohibiting him from claiming any interest in the lots.

We next turn to Tunnage’s claim that the trial court erred in finding Green was entitled to an award of attorney’s fees. Although the order fails to provide a statutory basis for the award, Green asserts his entitlement is justified based on Florida Statutes section 57.105. Before awarding fees pursuant to this section, the trial court must find that the losing party or its attorney “knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.” § 57.105(l)(a)-(b), Fla. Stat. Whereas the order appealed includes none of the findings required by section 57.105, we also reverse the portion of the order awarding Green attorney’s fees. See Goldberg v. Watts, 864 So.2d 59 (Fla. 2d DCA 2003) (reversing an award of attorney’s fees because the trial court failed to make the required findings).

As his final point on appeal, Tun-nage argues that the jury returned an inconsistent verdict in finding that he committed fraud, but Green sustained no damages. “This court has consistently held that a party’s failure to object or otherwise inform the court of an inconsistent verdict before the jury is dismissed waives the inconsistency in the verdict as a point on appeal.” Fla. Dep’t of Transp. v. Stewart, 844 So.2d 773, 774 (Fla. 4th DCA 2003). By waiting until after the trial judge dismissed the jury to argue that the verdict was inconsistent, Tunnage waived this issue for appellate review.

Affirmed in part and Reversed in part.

WARNER and TAYLOR, JJ., concur.

      . The complaint also named Sandra Stokes and Holly Barnes in connection with the fraud count. Stokes was the notary on both the initial deeds and the reconveyance deeds; Barnes was the subscribing witness on the reconveyance deeds. Barnes and Stokes have not participated in this appeal.


text:
    STATE of Florida, Appellant, v. Deborah L. EZINSKI, Appellee.
    No. 4D06-2262.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state appeals an order denying restitution for investigative costs, which consisted of an office manager spending time in order to calculate how much money was stolen from the company. The trial court concluded that office hours spent by the employee were not recoverable. Defendant recognizes, however, that the court was incorrect, but argues in the alternative that the evidence as to the amount of the costs was speculative. We conclude that the evidence was not speculative and accordingly reverse.

STEVENSON, C.J., KLEIN and SHAHOOD, JJ., concur.


text:
    F.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-791.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we grant appointed counsel’s motion to withdraw in this appeal but write to correct a minor sentencing error that was identified by counsel in the Anders brief. The state filed a response to counsel’s motion which voiced no objection to the relief requested. Minor sentencing issues may be disposed of in an Anders proceeding where there is no objection from the state. See, e.g., Rashid v. State, 932 So.2d 1205 (Fla. 4th DCA 2006).

The amended disposition order in this case contained superfluous language regarding the retention of jurisdiction beyond the child’s nineteenth birthday, very similar to that which was addressed in B.C. v. State, No. 4D06-250, 947 So.2d 510, 2006 WL 3613715 (Fla. 4th DCA Dec. 13, 2006). Because the language included in the order is not entirely accurate and may cause later confusion, we remand with directions to strike this additional language from the order.

The order properly retained jurisdiction over the child, who was placed on juvenile probation, until the child’s nineteenth birthday. The court may later retain further jurisdiction in this case, as provided by statute, if the conditions permitting an extension materialize while the court has jurisdiction. See §§ 985.201(4)(b)1, 985.31, 985.313, Fla. Stat. (2005). We affirm in all other respects.

Remanded with Directions.

KLEIN, SHAHOOD, and GROSS, JJ., concur.


text:
    Kerby CADET, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-980.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Kerby Cadet, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Kerby Cadet, timely appeals a trial court order which summarily denied his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. It appears that the trial court viewed the amendment as an independent motion and denied it as untimely and successive.

We reverse and remand for the trial court to reconsider the timeliness of the amendment. Our review of the record reveals that the amendment may have been authorized by a previous trial court order. Also, the amendment was filed before the trial court disposed of the original pending motion, though we note it may not have been before the court at the time it disposed of that pending motion. See Thompson v. State, 761 So.2d 324 (Fla.2000); see also Bulley v. State, 857 So.2d 237 (Fla. 2d DCA2003).

Accordingly, the case is remanded for further review of the timeliness of the May 30, 2005, amendment.

GUNTHER, WARNER and HAZOURI, JJ., concur.


author: POLEN, J.

text:
    Fred CARSWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4707.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant Fred Carswell (“Carswell”) timely appeals a conviction of aggravated battery and sentence to fifteen years in Florida state prison. We address two issues on appeal: (1) whether the trial court erred, in violation of double jeopardy, in resentencing Carswell upon remand from a successful State appeal; and (2) whether the trial court abused its discretion in admitting Florida Department of Corrections records into evidence for Prison Releasee Reoffender (“PRR”) sentencing purposes.

Carswell was originally charged by amended information with attempted second degree murder. However, the jury found him guilty only of aggravated battery. Carswell proceeded to file a motion for judgment of acquittal, a motion for arrest of judgment and a motion for new trial. The trial court granted Carswell’s motions for judgment of acquittal and arrest of judgment, and reduced Carswell’s conviction to simple battery, sentencing him to 364 days in jail with credit for 73 days time served.

The State appealed the trial court’s order, and this court reversed and remanded with instructions to reenter Carswell’s conviction for aggravated battery and to sentence him accordingly. Pursuant to this court’s mandate, the trial court vacated its order, thereby vacating Carswell’s battery adjudication and sentence. The trial court then reinstated Carswell’s conviction for aggravated battery and sentenced him to fifteen years in prison as a PRR. The court’s PRR finding was based on Florida Department of Corrections (“FDOC”) records indicating that Carswell was last released from the FDOC’s custody less than three years before he committed the current offense.

Carswell argues that the trial court violated his Fifth Amendment right not to be twice put in jeopardy of life or limb for the same offense when it vacated his conviction and sentence for simple battery and re-sentenced him to aggravated battery. See Amend. V, U.S. Const. The legality of a sentence is a question of law and is subject to de novo review. Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005). In State v. Carswell, 914 So.2d 9 (Fla. 4th DCA 2005), we reversed the trial court’s order granting Carswell’s motion for arrest of judgment on the basis that the jury lawfully exercised its right to jury pardon. Carswell, 914 So.2d at 11-12 (citing State v. Connelly, 748 So.2d 248, 252-53 (Fla.1999) (stating that although “ ‘truly’ or legally interlocking inconsistent verdicts require acquittal,” “inconsistent verdicts are allowed because jury verdicts can be the result of lenity ... ”)). We did so despite the fact that Carswell had already completed service of his sentence for simple battery. To find otherwise would have improperly precluded the State from appealing the trial court’s arrest of judgment. To now hold the trial court’s subsequent resentencing violative of the Double Jeopardy Clause would also serve to wrongly prevent the State from appealing an arrest of judgment. Moreover, had the trial court truly erred in granting Cars-well’s motion for arrest of judgment, he could not have served the correct sentence. Therefore, we find no violation of the Double Jeopardy Clause.

As to Carswell’s contention that the trial court abused its discretion in admitting FDOC records into evidence for PRR sentencing purposes, we disagree and affirm on the basis of Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), and, as we did in Yisrael, certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). See Yisrael, 938 So.2d at 550.

Affirmed.

WARNER and GROSS, JJ., concur.

      . The trial court did not rule on Carswell’s motion for new trial.

      . State v. Carswell, 914 So.2d 9, 11-12 (Fla. 4th DCA 2005) (reversing trial court’s order granting Carswell's motion for arrest of judgment and motion for judgment of acquittal, where jury lawfully exercised its right to jury pardon and the evidence supported the jury’s verdict of aggravated battery).


text:
    Antoine WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-75.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for respondent.
   ON MOTION FOR REHEARING TO CORRECT MANIFEST INJUSTICE

PER CURIAM.

The petitioner, Antoine Williams, filed this motion for rehearing to correct manifest injustice. In his motion, Williams argues that our decision, Williams v. State, 914 So.2d 976 (Fla. 4th DCA 2005), in which we per curiam affirmed Williams’s judgment and sentence, directly conflicts with our decision, Shennett v. State, 937 So.2d 287 (Fla. 4th DCA 2006), in which we reversed his co-defendant’s judgment and sentence and remanded for a new trial on the same ground argued in Williams’s initial brief. Because we do not have authority to recall the mandate as we are not in .the same term of court in which Williams’s conviction was affirmed, we treat Williams’s motion as a petition for writ of habeas corpus, grant the petition, and vacate his conviction and sentence. See Raulerson v. State, 724 So.2d 641, 643 (Fla. 4th DCA 1999). The motion to correct manifest injustice was filed in case number 4D04-4303. Upon our treatment of the motion as a petition for writ of habeas corpus, we hereby assign a new case number, 4D07-75.

Antoine Williams appeals his convictions for aggravated fleeing and eluding, attempted burglary as a lesser included offense, and two counts of leaving the scene of an accident. We affirm, without comment, the second claim of error raised on appeal. However, we reverse on the first claim of error because of the admission of testimonial hearsay that violated the Sixth Amendment Confrontation Clause as the United States Supreme Court has construed it in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The conveyance burglarized was a 2000 Dodge Caravan minivan owned by Allison Brown. Brown parked her auto in an empty row of parking spaces at Plantation Central Park. She took her children to the playground, and within five minutes, a plain-clothes officer told her that someone had broken into her minivan. When Brown returned to the parking lot, she saw that her passenger-side window had been shattered, and there was glass inside and outside of the van. Nothing was missing from inside the Caravan.

At the time that Brown parked her vehicle in the lot, Officers Craig Boermeester and Jeff Young were conducting an undercover surveillance in the park. Each officer was in a different unmarked police car. Boermeester testified at trial; Young did not because he was serving in the armed forces in Afghanistan.

Before Brown arrived at the parking lot, Boermeester saw a Ford Taurus pull up next to a Ford Explorer. He noticed that the driver of the Taurus was a heavy-set black male with short hair, but he could not tell if anyone else was in the Taurus. The Taurus then drove away. Meanwhile, Officer Young followed the Taurus to a different parking lot and took up position on a rooftop so that he could better observe the Taurus. Using his radio, Young notified Boermeester of his position. The Taurus moved and parked ne:xt to a red SUV that blocked Boermeester’s view of the Taurus.

Over the radio, Young relayed his observations to Boermeester. At trial, Boermeester testified to Young’s observations. Williams’s defense counsel joined in on the hearsay objection of the co-defendant, Jermaine Shennett, and argued that the proper predicate had not been laid for the spontaneous statement exception. Shennett’s defense counsel then joined in on Williams’s objection and added a Confrontation Clause objection to the admission of Officer Young’s statements to Boer-meester. The trial court overruled the objections, ruling that the spontaneous statement exception to the hearsay rule applied. During Boermeester’s testimony concerning Young’s observations, Shen-nett’s defense counsel objected, raised the “same objection as before,” and asked the court to take it as a continuing objection, which the court granted. Williams’s defense counsel joined in on the continuing objection.

Boermeester then continued to testify to Young’s observations relayed to him over the radio that described the alleged burglary, most of which Boermeester was not in a position to observe. Young told Boer-meester that the Taurus backed into the parking space next to Brown’s Caravan, so that the two vehicles were passenger side to passenger side. Young then relayed that the passenger of the Taurus got out of the car, crouched down on his knees next to the minivan, threw something at the minivan’s window, and the window broke. Young described the passenger as a black male with dreadlocks, wearing a black tank top and black shorts. Young stated that once the window broke, the passenger began rummaging through the minivan, and at this point, marked police cruisers closed in. Young also stated that the passenger got back into the Taurus and the Taurus led the police on a high-speed police chase.

The State then played for the jury a police dispatch tape of communications between Boermeester, Young, and two other officers in which the officers communicated with each other during the high-speed police chase. Again, Williams’s defense counsel objected on hearsay grounds, which was joined in by Shennett’s defense counsel, who added a Confrontation Clause objection.

Ultimately, the Taurus spun out of control and struck a guardrail. Officer Clark approached the passenger side of the Taurus and identified Shennett as the passenger in the Taurus. The driver of the Taurus, Williams, fled from the vehicle, but was chased on foot by police officers and detained.

On appeal, Williams argues that Young’s statements to Boermeester over the radio failed to satisfy the Confrontation Clause requirements of the United States Constitution under Crawford. We agree that the statements were testimonial, that Williams had no opportunity to cross-examine Young, and therefore the statements were inadmissible under Crawford.

In the co-defendant’s case, Shennett v. State, 937 So.2d 287, 290 (Fla. 4th DCA 2006), in which Shennett raised the identical issue on appeal, we recently held that Young’s statements were hearsay, because the statements were not made “at the trial” and were “offered in evidence to prove the truth of the matter asserted.” Furthermore, we held that Young’s statements over the radio to Officer Boermees-ter were “testimonial” under Crawford. Id. at 291. In Shennett, we applied the standard for a “testimonial” statement set forth in Belvin v. State, 922 So.2d 1046, 1050 (Fla. 4th DCA 2006)(e% banc), which focuses on the reasonable expectations of the declarant and whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused at trial. Id. We explained:

Young was aware that he was in the midst of a surveillance investigation. He knew that his recorded observations would have their place in a criminal prosecution as a contemporaneous record of the criminal conduct of the occupants of the Taurus. Objectively, there was a reasonable expectation that the taped statements would later be used in the prosecution of a crime. Because Shennett did not have the opportunity to cross-examine Young, the admission of the taped statements violated the Confrontation Clause.

Id. at 291-92. As a result, we reversed Shennett’s convictions and remanded for a new trial. Id. at 292-93.

Accordingly, because Williams also did not have the opportunity to cross-examine Young and Young’s statements relayed to Boermeester over the radio were “testimonial” under Crawford, we conclude that the admission of Young’s statements violated the Confrontation Clause. We therefore reverse Williams’s convictions and remand for a new trial.

Reversed and Remanded for New Trial.

GUNTHER, FARMER and TAYLOR, JJ., concur.


text:
    Travis SUOMI, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1603.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Travis Suomi (Defendant) appeals the final order denying his rule 3.850 motion for post-conviction relief following an evi-dentiary hearing. The sole issue raised by the instant appeal is the summary denial of his third ground for relief. We reverse that summary denial and otherwise affirm.

The record provided to this court does not indicate clearly with what offenses Defendant was charged, or more importantly precisely what charges were pending at the time he entered his no contest plea. The index to the docket indicates that he was arrested for burglary of a dwelling, attempted robbery, and home invasion robbery, but it also indicates that on February 19, 2002, the charge of home invasion robbery was “no filed.” According to the initial brief filed in his direct appeal, he was charged by information with (I) burglary of a dwelling; and (II) attempted robbery. The order on appeal in this case states that Defendant was charged with burglary and robbery. At any rate, there is no indication that count I was ever charged as attempted burglary, or that Defendant was charged with home invasion robbery at the time of his plea.

Defendant entered a nolo contendere plea to attempted burglary and attempted robbery, which provided that the state agreed to a ten-year cap on his sentence. He was sentenced to five years for each count, to run consecutively.

In the third ground of his rule 3.850 motion, Defendant claimed that he wished to proceed to trial, but his defense counsel coerced him into entering the plea by telling him no one would believe him because his victim was a former St. Lucie sheriff, though Defendant’s professions of innocence never varied, and that defense counsel misadvised him that if he did not take the plea, he would get life. However, Defendant alleged the charges lodged against him were third-degree felonies, punishable by a maximum of five years each, absent any enhancement. While home invasion robbery carried a possible life sentence, counsel knew there was no chance the state could prove that charge; without habitualization, the maximum he really faced was ten years, which is what he received. This coercive misadvice caused Defendant to sign the plea agreement. Had counsel subjected the state’s case to adversarial testing, Defendant never would have entered the plea, but would have proceeded to trial.

The trial court summarily denied this ground. Identifying it as a claim of counsel’s misadvising Defendant that “if you don’t take the plea, you’ll get life,” the court found the following:

Examination of the record reveals that the trial court cured any alleged misstatement by counsel concerning the maximum sentence when during the plea colloquy the trial court advised the Defendant that the maximum sentence for each offense was five years in prison. (See complete plea hearing transcript, page 4, Exhibit “A.”)[ ] Further, it is clear from the motion that the Defendant entered his plea knowing that he could not be sentenced to more than 10 years in prison. Thus, the Defendant’s claim is conclusively rebutted by the record and the Court finds that the Defendant was not prejudiced in entering the plea.

We agree with Defendant’s argument, in his initial brief, that the trial court’s advice as to his maximum sentence pertained to the maximum sentence he could receive pursuant to the plea agreement, which capped the sentence at ten years. It did not address what sentence Defendant could receive if he did not accept the plea offer. This could not cure any misadvice of counsel as to Defendant’s likely sentence if he went to trial.

The state acknowledged, in its response to this court’s order to show cause, that the trial court’s advising Defendant at the plea colloquy that he faced a maximum of five years for each offense did not cure any alleged misadvice of counsel concerning the maximum sentence which Defendant could receive if he proceeded to trial. But the state maintains that there is no necessity for a hearing because the trial court’s summary denial of this ground was right for the wrong reason: Defendant was not misadvised of the maximum sentence he faced, because he was a convicted felon accused of home invasion robbery.

However, besides the fact that nothing in the record established that Defendant qualified for habitual sentencing, there is nothing in the record to show that the charge of home invasion robbery was ever filed against him, much less was still pending at the time he entered the plea. Further, if counsel advised Defendant that the charge of burglary or attempted robbery carried a life sentence, that too would have been misadvice.

The prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is satisfied by the allegation that, but for counsel’s error, there is a reasonable probability that the defendant would not have entered plea but would have gone to trial. Cousino v. State, 770 So.2d 1258 (Fla. 4th DCA 2000). He need not allege that he would have prevailed at trial. Grosvenor v. State, 874 So.2d 1176, 1181 (Fla.), cert. denied, 543 U.S. 1000, 125 S.Ct. 627, 160 L.Ed.2d 458 (2004).

Accordingly, we reverse and remand the summary denial of Defendant’s third ground for relief for either an evidentiary hearing or the attachment of portions of the record conclusively refuting the claim and otherwise affirm the denial of his post-conviction motion.

Affirmed in part, Reversed in part, and Remanded.

POLEN, GROSS and HAZOURI, JJ., concur.

      . Home invasion robbery is a first degree felony, § 812.135(2), Fla. Slat. (2001), punishable by up to thirty years in prison, § 775.082(3)(b), Fla. Stat. (2001), absent ha-bitualization. Defendant could have been sentenced to life for that offense only if he were sentenced as a habitual offender. There is some mention of prior offenses in the record, but nothing established that he qualified for sentencing as a habitual offender.

      . On page 4 of the plea transcript attached to the order, the trial court asked Defendant, "Do you understand the maximum legal sentence you could receive for each offense would be up to five years in prison and a fine of up to $5,000 ... ? Do you understand that?” Defendant replied, "Yes sir.”

      . Burglary of an occupied dwelling, without assault or battery, and without the offender being or becoming armed, is a second degree felony, § 810.02(3)(a), Fla. Stat. (2001), punishable by up to fifteen years in prison, § 775.082(3)(c), Fla. Stat. (2001).

      . Robbery without a weapon is a second degree felony, § 812.13(2)(c), Fla. Stat. (2001); the attempt of such an offense is a third degree felony, § 777.04(4)(d)l, Fla. Stat. (2001), punishable by up to five years in prison, § 775.082(3)(d), Fla. Stat. (2001).


text:
    Philip J. ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3129.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Philip J. Ross, Immokalee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse an order denying Ross’ rule 3.850 motion as untimely filed. For the reasons expressed below, we conclude the motion was timely filed within the time allowed under Florida Rule of Criminal Procedure 3.850. Therefore, we remand for consideration of the motion on the merits.

On June 17, 1998, a jury found Ross guilty of robbery with a weapon, a lesser-included offense to robbery with a deadly weapon. On direct appeal, this court affirmed the conviction, but reversed the sentence imposed because the lower court failed to impose a prison releasee reoffen-der sentence, even though Ross qualified for such an enhanced sentence. Ross v. State, 770 So.2d 1250, 1251 (Fla. 4th DCA 2000) [Ross I ] (“the trial court in this case was without discretion to refuse to impose a prison releasee reoffender sentence. Accordingly, appellant’s sentence must be reversed and remanded for resentencing. Upon resentencing, however, the court cannot sentence appellant under both the prison releasee reoffender act and the habitual felony offender act because to do so violates the double jeopardy clause.”). On December 14, 2000, the trial court imposed a new sentence in accordance with this court’s mandate. On December 18, 2000, through his public defender, Ross filed a timely notice of appeal, thus invoking this court’s jurisdiction. The sole issue involved in this second appeal was the imposition of costs. In Ross v. State, 831 So.2d 817 (Fla. 4th DCA 2002) [Ross II], we determined the trial court erred and stated “the assessment of costs shall be deleted. We note Ross does not challenge the imposition of [the] sentence itself, and the matter need only be remanded for correction of the erroneous cost assessment on the disposition slip.” Id. at 818. The mandate in this case issued on December 27, 2002.

On April 15, 2003, Ross filed the instant motion seeking post-conviction relief, raising claims of ineffective assistance of counsel during his trial. The lower court denied relief, concluding the motion was untimely filed as the two-year limitations period began to run after the imposition of the new sentence after Ross I. We disagree.

In Pierce v. State, 875 So.2d 726 (Fla. 4th DCA 2004), this court followed the interpretation of Snipes v. State, 843 So.2d 1043 (Fla. 2d DCA 2003), and concluded “that the two-year window commences when both the conviction and sentence are final.” Id. at 729. To do otherwise would allow for an “absurd result” where a defendant could be absolutely precluded from filing a rule 3.850 motion when the conviction became final after the window closed while the sentence was pending on appeal. Id. The general premise is related to the principle that a lower court does not have jurisdiction to consider a rule 3.850 motion while the judgment and sentence are pending on appeal in the district court. See Mitchell v. State, 846 So.2d 559, 560 (Fla. 4th DCA 2003) (“a trial court lacks jurisdiction to rule on a postconviction motion while the same defendant’s direct appeal is pending”); , see also Cross v. State, 930 So.2d 863 (Fla. 2d DCA 2006) (“[W]e have recognized that trial courts lack jurisdiction to consider the merits of a defendant’s rule 3.850 motion while the direct appeal of the defendant’s judgment and sentence is pending.”).

In the instant case, Ross properly invoked the jurisdiction of this court in Ross II, after the imposition of the new sentence, thus removing jurisdiction from the lower court. Had Ross filed a rule 3.850 motion while this court considered the merits of Ross II, the lower court would have been correct to hold that case in abeyance (or dismiss without prejudice) because it did not have jurisdiction to consider the merits. This case presents a different set of facts from those where a lower court had jurisdiction to consider a rule 3.850 motion while the defendant appealed a new sentence imposed after getting relief from a separate postconviction motion. Cf. Clark v. State, 720 So.2d 1097 (Fla. 2d DCA 1998) (Trial court could consider the merits of rule 3.850 motion, raising ineffective assistance of counsel claims, while appeal of sexual predator designation was pending.); Cross v. State, 930 So.2d 863, 864-65 (Fla. 2d DCA 2006) (“Because this case involves an appeal from sentences imposed following a post-conviction motion, we conclude that the trial court was not divested of jurisdiction as it would have been had the pending appeal been from the original sentences or from new sentences imposed oh remand after a successful direct appeal.”).

The time, under rule 3.850(b), began to run after this court issued its mandate in Ross II and the lower court struck the offending costs portion of the sentence. The issues raised by Ross in his second appeal are inconsequential to the consideration of jurisdiction. The fact that Ross properly and timely invoked this court’s jurisdiction to review the new sentence, imposed after the first direct appeal, is the sole consideration when determining the jurisdiction of the lower court to consider a rule 3.850 motion.

Reversed and remanded.

STONE, POLEN and FARMER, JJ„ concur.


author: MONACO, J.

text:
    William TRIPLETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1671.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.

      Frederick S. Jaeger, Jr., Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

William Triplett appeals the judgment of guilt and the sentence imposed on him by the trial court after a jury convicted him of one count of lewd or lascivious molestation of a minor less than twelve years of age, in violation of section 800.04(5)(a)(b), Florida Statutes (2004). The sole issue in this appeal is whether the trial court abused its discretion in admitting similar fact evidence over Mr. Triplett’s objection. Because we find no abuse of discretion, we affirm.

The general test of admissibility for similar fact evidence is relevancy. Similar fact evidence of other crimes, wrongs, or acts is only admissible when it is relevant to prove a material fact in issue, including proof of intent, plan, identity, or absence of mistake or accident. It is inadmissible when the evidence is offered solely to prove bad character or the propensity of the defendant to commit a crime. See § 90.404(2)(a), Fla. Stat. (2004). If the evidence of a similar act of the accused is offered only to show that he or she is of bad character or is likely to commit the crime charged, it is not relevant to a material fact, and thus not admissible. Where child molestation is involved, however, section 90.404(2) broadens the admissibility of similar fact evidence to some extent. Subsection 90.404(2)(b)l. states in this regard:

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

See also Burke v. State, 835 So.2d 286, 287 (Fla. 5th DCA 2002).

A collateral crime proven by similar evidence does not need to be absolutely identical to the crime charged in order to be admissible. See Schwab v. State, 636 So.2d 3 (Fla.), cert. denied, 513 U.S. 950, 115 S.Ct. 364, 130 L.Ed.2d 317 (1994). Moreover, similar fact evidence relevant to prove a material fact other than identity does not need to meet the rigid similarity requirement applied when such evidence is used to prove identity. See Houston v. State, 852 So.2d 425, 426 (Fla. 5th DCA 2003); see also Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003), review denied, 871 So.2d 874 (Fla.2004). In the present case, and without discussing the facts in detail, we conclude that the trial court was correct in finding that the similar fact evidence was offered by the State to establish intent, plan and absence of mistake or accident.

Even though section 90.404(2)(b), Florida Statutes allows evidence of other acts of child molestation to be admitted for any matter to which it is relevant, relevancy remains the threshold question to be considered. Thus, the more dissimilar the prior acts, the less relevant they are to the crime charged and the less likely they are to be admissible. In addition, even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. In the case now before us the similarity between the collateral act of molestation perpetrated by Mr. Triplett with respect to another young woman and the charged molestation was a critical consideration for the trial court in conducting an appropriate weighing of the evidence required by section 90.403. See McLean v. State, 934 So.2d 1248, 1258 (Fla.2006). We think he got it right.

Generally, the admissibility of evidence is within the broad discretion of the trial court and the trial court’s determination will not be disturbed on appellate review absent an abuse of that discretion. Discretion is abused when the judicial action taken is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the view taken by the trial court. See Rodgers v. State, 934 So.2d 1207, 1222 (Fla.), cert. denied, _ U.S. _, 127 S.Ct. 728, 166 L.Ed.2d 566 (2006); Brooks v. State, 918 So.2d 181, 188 (Fla.2005), cert. denied, _ U.S. _, 126 S.Ct. 2294, 164 L.Ed.2d 820 (2006); Fitzpatrick v. State, 900 So.2d 495, 514 (Fla.2005); Huff v. State, 569 So.2d 1247, 1248 (Fla.1990); Curry v. State, 839 So.2d 887, 888 (Fla. 3d DCA 2003).

In the present case, the trial court’s consideration of the issue was thoughtful and deliberate, and we find no abuse of discretion in the admission of the similar fact evidence. The previous acts of purported child molestation b3? Mr. Triplett shared numerous similarities with the charged offense. Moreover, the prior acts of Mr. Triplett did not become a feature of the trial. It was, in fact, barely mentioned in closing by the State (cumulating only about one page of the transcript), until the defense discussed it in greater detail in its closing. Finally, the trial court instructed the jury appropriately on the limited purpose for the admission of similar fact evidence. Accordingly, we find no error.

AFFIRMED.

PLEUS, C.J. and SAWAYA, J., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Jumar MOULTRIE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3882.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.
    Jumar Moultrie, Crestview, pro se.
    Bill McCollum, Attorney General, Tallahassee, Office Of Attorney General, of Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in Case No. 48-05-CF-10985-O/A in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(c)(5)(D).

ORFINGER, MONACO and LAWSON, JJ., concur.


author: STRINGER, Judge.

text:
    Daniel BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3665.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2007.
   STRINGER, Judge.

Daniel Burton appeals the summary dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s dismissal of Mr. Burton’s motion without prejudice for Mr. Burton to refile a timely, facially sufficient rule 3.850 motion.

Affirmed.

SALCINES and CANADY, JJ„ Concur.


author: PER CURIAM. TAYLOR, J.,

text:
    Vladimir SANTOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-812.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006); Coles v. State, 941 So.2d 1288 (Fla. 4th DCA 2006).

STEVENSON, C.J., and WARNER, J., concur.

TAYLOR, J., concurs specially with opinion.

TAYLOR, J.,

concurring specially.

I concur with an affirmance in this case because this result is dictated by our recent opinion in Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006). But for Garzón, I would reverse.

Appellant and his co-defendant, Eduardo Delbusto, were charged with grand theft of cargo greater than $50,000 and burglary of a conveyance. Appellant and Delbusto were tried together and found guilty on both counts. In instructing the jury, the trial court inserted the conjunction “and/or” between the names of appellant and Delbusto as to each element of both crimes. The court also instructed the jury on the theory of principals.

The evidence showed that Deputy Michael Conroy of the Broward Sheriffs Office was on routine patrol at the farmer’s market in Pompano Beach when he discovered appellant lying face down in a field next to the parking lot around 12:30 or 1:00 a.m. The lot was often used by truck drivers to park their trucks overnight. Appellant was carrying a cell phone with an earpiece on his person. Deputy Conroy ordered appellant to put his hands behind his back. Appellant complied and was taken into custody.

At some point, Deputy Conroy noticed that the window of one of the tractor-trailers parked in the market lot had been pushed in. The deputy knocked on the truck’s door and announced his presence. Another officer reached inside the window and unlocked the door. Deputy Conroy then entered the truck. He discovered Delbusto lying on the floor of the truck. Deputy Conroy found brown gloves, a small flashlight, and a cell phone with an earpiece in the area where Delbusto had been lying. He was arrested by the officers.

At trial, Lloyd Harriott, a truck driver, testified that he parked his tractor-trailer, loaded with a shipment of fans, in the farmer’s market parking lot. He locked his truck and then went home. He later received a phone call from the Broward Sheriffs Office, and in response, went to the farmer’s market. He saw that the right side window of the door of his truck was missing. He also discovered that the ignition was missing. None of his cargo was missing.

Appellant and Delbusto were placed together in an interview room that was equipped with video and sound recording devices. During their taped conversation, appellant said that he was going to say he did not know Delbusto. Delbusto told appellant not to talk about anything. Appellant said that he saw police cars drive by several times and that he was apprehended after he jumped the fence.

The judge instructed the jury as follows as to theft of cargo:

[T]o prove the crime of theft of cargo, the state must prove the following three elements beyond a reasonable doubt:
1. Eduardo Delbusto and/or Vladimir Santos, knowingly and unlawfully obtained, used, endeavored to obtain or endeavored to use the property of Lloyd Harriott.
2. Eduardo Delbusto and/or Vladimir Santos did so with the intent to either temporarily or permanently deprive Lloyd Harriott of his right to the property or any benefit from it or to appropriate the property of Lloyd Harriott to his or their own use or to the use of any person not entitled to it.
3. The property taken was cargo valued at less than $50,000 that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving deck.

As to the crime of burglary, the court instructed the jury as follows:

[T]he state must prove the following three elements beyond a reasonable doubt:
1. Eduardo Delbusto and/or Vladimir Santos entered a conveyance owned by or in the possession of Lloyd Harriott.
2. Eduardo Delbusto and/or Vladimir Santos did not have the permission or consent of Lloyd Harriott.
3. At the time of entering the conveyance, he or they, had a fully formed conscious intent to commit the offense of theft in that conveyance.

After instructing the jury as to the two crimes charged, the judge gave the jury the standard principals instruction. See Fla. Std. Jury Instr. (Crim.) 3.5(a).

In several cases recently decided by our court, we addressed whether it is reversible error to instruct a jury using “and/or” between co-defendants’ names. See Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006); Dempsey v. State, 939 So.2d 1165 (Fla. 4th DCA 2006); Womack v. State, 942 So.2d 955 (Fla. 4th DCA 2006); Coles v. State, 941 So.2d 1288 (Fla. 4th DCA 2006). In Garzón, the majority concluded that such an instruction was not fundamental error, even though the defendant was not present when the crimes were committed and could only have been convicted under the principals theory. Cf. Dempsey, 939 So.2d at 1165 (concluding that the written “and/or” instructions constituted non-fundamental error and certifying the question as one of great public importance). However, I believe that the better approach is that advocated by the dissent in Garzón. There, Judge Klein stated that, because Garzón was absent from the scene of the crime, the “and/or” instructions were fundamental error. He reasoned:

Because Garzón was not present, the “and/or” instructions were so deficient as to be fundamental error. It was far less likely that he would have been convicted of kidnapping, but for the “and/ or” instruction, because the object of the home invasion was robbery, and the kidnapping carried out by those present was only incidental. Although Garzón could have been found guilty as a principal, the manner in which the jury was instructed made it unnecessary for the jury to consider whether Garzón had the intent, under the principals instruction, for the kidnapping to have occurred.

939 So.2d at 289; see also Harris v. State, 937 So.2d 211, 212 (Fla. 3d DCA) (holding, based on a totality of the circumstances approach, that the “and/or” jury instruction was fundamental error), review dismissed, 942 So.2d 413 (Fla.2006).

I would follow Harris’s fact-based approach to conclude that use of “and/or” in the jury instructions in this case constituted fundamental error. Here, appellant was found some unknown distance from the trailer, lying in a field, without any burglary tools or stolen items in his possession. There was no evidence presented that appellant was directly involved in the burglary of the trailer or theft of any cargo. The “and/or” conjunction might have misled the jury to believe it could convict appellant based solely on the acts of his co-defendant, Delbusto. The addition of the principals instruction did not adequately prevent the jury from misinterpreting the primary instruction on the elements of the crimes. The, primary instruction, which was read first to the jury, allowed the jury to convict appellant for Delbusto’s crimes without having to consider whether appellant had the necessary intent or involvement. I would therefore reverse this case for a new trial.

      . Delbusto was charged with, but acquitted of, possession of burglary tools.


text:
    Carl SHELL, Appellant, v. HOLLYWOOD HOUSING AUTHORITY and Tim Schwartz, Appellees.
    No. 4D06-2516.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.

      Carl Shell, Hollywood, pro se.
    Jeffrey L. Hochman and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A., Fort Laud-erdale, for appellees.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    Michael D. GOSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-295.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005), rev. denied, 915 So.2d 1196 (Fla.2006).

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    In re George K. WAGUESPACK.
    No. 2007-OB-0200.
    Supreme Court of Louisiana.
    Jan. 31, 2007.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel,

IT IS ORDERED that George K. Wag-uespack, Louisiana Bar Roll number 22662, be and he hereby is transferred to disability inactive status.

IT IS FURTHER ORDERED that pursuant to Supreme Court Rule XIX, § 27, the presiding chief judge in the Twenty-Third Judicial District Court for the Parish of Ascension is ordered to appoint a lawyer or lawyers to conduct an inventory of respondent’s files and to take action as appropriate to protect the interests of respondent’s clients.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


text:
    STATE ex rel. Allen ROBERTSON, Jr. v. Burl CAIN, Warden.
    No. 2003-KP-2747.
    Supreme Court of Louisiana.
    Jan. 31, 2007.
   ORDER

Considering that this matter was held in abeyance pending the evidentiary hearing ordered to be held on capital defendants post-conviction proceedings funding requests, State ex rel. Williams v. State, 04-0575 (La.12/1/04), 888 So.2d 792; considering that this hearing was held and this court, after a supplemental record was filed, remanded State ex rel Williams v. State, 04-575 (La.1/12/07), 946 So.2d 172 to the district court for further proceedings; and considering that the Louisiana Indigent Defense Assistance Board (LIDAB) has recently adopted new rules applicable to this case, see La. Admin. Code tit. 22, part XV, § 201 et seq., the issue that was before this court is now moot.

Therefore, IT IS HEREBY ORDERED that this case be remanded to the district court for further proceedings, after first allowing the defendant to seek funds from LIDAB in accordance with La. Admin. Code tit. 22, part XV, § 201 et seq.

/s/ Jeannette Theriot Knoll Jeannette Theriot Knoll, Justice


text:
    In re Andrew REED.
    No. 2006-B-2357.
    Supreme Court of Louisiana.
    Feb. 1, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel seeks review of a recommendation of the disciplinary board that the formal charges against respondent, Andrew Reed, be dismissed. Having reviewed the record and the briefs of the parties, we find the disciplinary board reached the correct result in dismissing the formal charges.

Accordingly, it is the judgment of this court that the formal charges against respondent be dismissed.

KIMBALL and JOHNSON, JJ., would docket the case for oral argument.


text:
    In re Bruce WILLIAMS.
    No. 2006-B-2578.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   I ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

FORMAL CHARGES

01-DB-052

The Course Matter

In November 1996, Lucille Course hired respondent to handle a personal injury claim. Respondent did not file a lawsuit on her behalf until November 5, 1997, three days after prescription on the claim had run. He did not inform Ms. Course of his failure to file suit timely or advise her to seek independent counsel about a possible malpractice claim against him. He also failed to respond to Ms. Course’s requests for status updates, despite her numerous phone calls.

The ODC alleged that respondent’s conduct in this matter violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 1.8 (conflict of interest) of the Rules of Professional Conduct.

| M-DB-Oh.8

Count I — The Demetrice Johnson Matter

In February 1996, Demetrice Johnson hired respondent to handle a personal injury claim. Respondent failed to adequately communicate with Ms. Johnson or provide her with requested status updates, despite her numerous phone calls. He also stopped working on her legal matter without notifying her. Thereafter, respondent failed to fully cooperate with the ODC in its investigation of Ms. Johnson’s complaint.

The ODC alleged that respondent’s conduct in this matter violated Rules 1.3, 1.4, and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count II — The Gould Matter

In June 1998, Jyronne Gould hired respondent to handle a personal injury claim. Respondent failed to adequately communicate with Mr. Gould or provide him with requested status updates, despite his numerous phone calls. He also stopped working on Mr. Gould’s legal matter without notifying him. Thereafter, respondent failed to fully cooperate with the ODC in its investigation of Mr. Gould’s complaint.

The ODC alleged that respondent’s conduct in this matter violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count III — The Gisele Johnson Matter

In November 1995, Gisele Johnson hired respondent to handle a medical malpractice claim. Respondent failed to move the matter forward and failed to respond to Ms. Johnson’s numerous phone calls. He also failed to fully cooperate with the ODC in its investigation of Ms. Johnson’s complaint.

|sThe ODC alleged that respondent’s conduct in this matter violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count TV — The Smith Matter

In January 2001, Walter Smith hired respondent to handle a lawsuit against the Housing Authority of New Orleans. Respondent failed to respond to Mr. Smith’s phone calls or correspondence requesting status updates.

The ODC alleged that respondent’s conduct in this matter violated Rule 1.4 of the Rules of Professional Conduct.

05-DB-0SÍ

Count I — The Young Matter

In December 1996, Nolan Young hired respondent to handle a personal injury claim. Respondent filed suit on Mr. Young’s behalf but failed to move the matter forward. He also failed to respond to Mr. Young’s numerous phone calls. Soon after receiving notice of Mr. Young’s disciplinary complaint against him, respondent withdrew from his case. However, he failed to notify Mr. Young of his withdrawal.

The ODC alleged that respondent’s conduct in this matter violated Rules 1.3, 1.4, and 1.16(d) (obligations upon termination of the representation) of the Rules of Professional Conduct.

Count II — The Ward Matter

In 1995, Patricia Ward hired respondent to handle a personal injury claim. Respondent failed to move the matter forward and failed to adequately communicate with Ms. Ward. He also failed to fully cooperate with the ODC in its investigation of Ms. Ward’s complaint.

|4The ODC alleged that respondent’s conduct in this matter violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

Respondent did not file answers to the three sets of formal charges. Instead, he filed a motion to consolidate and set for hearing in mitigation. In his motion, respondent admitted that he violated the Rules of Professional Conduct as alleged in the formal charges. The hearing committee chair ordered that the cases be consolidated and set for a hearing in mitigation. However, respondent failed to appear at the hearing.

Hearing Committee Recommendation

The hearing committee determined that the factual allegations in the formal charges were supported by the evidence. Accordingly, it concluded respondent violated the Rules of Professional Conduct as charged.

In aggravation, the committee determined that respondent engaged in a pattern of misconduct that resulted in repeated violations of the Rules of Professional Conduct. It further found respondent showed no remorse. The only mitigating factor found by the committee is the absence of a prior disciplinary record.

| r,Based on its findings, the committee recommended that respondent be disbarred and be assessed with all costs of these proceedings. Neither respondent nor the ODC filed an objection to the committee’s recommendation.

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board found that respondent violated Rules 1.3, 1.4, 1.8,1.16(d), and 8.1(c) of the Rules of Professional Conduct. It noted he acted knowingly, if not intentionally, and caused actual harm to his clients. It also concluded he knowingly failed to cooperate with the ODC in its investigations, which placed an unnecessary burden on the disciplinary system.

As aggravating factors, the board found a pattern of misconduct, multiple offenses, and a refusal to acknowledge the wrongful nature of the conduct. The board also observed that respondent failed to appear at the hearing, which was scheduled at his request and solely for his benefit.

After considering the prior jurisprudence involving similar misconduct, the board recommended that respondent be disbarred and be assessed with all costs and expenses of these proceedings. Neither respondent nor the ODC filed an objection to the board’s recommendation.

DISCUSSION

| ,;Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The undisputed evidence in the record of this matter reveals that respondent neglected six legal matters, failed to cona-municate with seven clients, failed to protect one client’s interest upon termination of the representation, and failed to cooperate with the ODC in four investigations. Respondent also allowed one client’s claim to prescribe and did not inform her that she may have a malpractice claim against him for his failure to file suit on time. This conduct violates Rules 1.3, 1.4, 1.8, 1.16(d), and 8.1(c) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering this issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

|7In eases involving multiple instances of neglect, failure to communicate with clients, and failure to cooperate with the ODC in its investigations, we have often disbarred lawyers. See, e.g., In re: Brancato, 06-0124 (La.5/26/06), 932 So.2d 651 (attorney disbarred for numerous instances of neglect, failure to communicate, and failure to cooperate); In re: Poirrier, 01-1116, 01-1118 (La.6/29/01), 791 So.2d 94 (attorney disbarred for abandoning his law practice, neglecting several legal matters, failing to communicate with his clients, failing to account for or refund unearned fees and/or unused costs, failing to return his clients’ files, and failing to cooperate with the ODC).

Aggravating factors present in the instant matter are a pattern of misconduct and multiple offenses. The sole mitigating factor is respondent’s lack of a prior disciplinary record.

Considering the record as a whole, we conclude respondent has failed to comply with the high ethical standards expected of lawyers in this state. His chronic neglect of legal matters entrusted to him as well as his lack of regard for the welfare of his clients reveals he is a danger to the public. Accordingly, he must be disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Bruce Williams, Louisiana Bar Roll number 21156, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys, and his license to practice law in the State of Louisiana shall be revoked. 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.

      . Apparently, respondent’s home and office were destroyed during Hurricane Katrina. Although he did not notify the Louisiana State Bar Association of a change in his bar registration address, the ODC was able to locate him at his father’s residence in Alabama following the hurricane. On January 6, 2006, Ronald Beaver, the ODC's investigator, spoke with respondent on his cell phone. Respondent informed Mr. Beaver that the ODC could send correspondence to him at his father's residence. On January 12, 2006, notice of the hearing date was delivered to respondent at his father’s residence via Federal Express. Notice was also sent to respondent’s bar registration address via regular mail. Furthermore, Mr. Beaver left several voicemail messages for respondent on his cell phone informing him of the hearing date. Nonetheless, respondent failed to appear.

      . The board cited In re: Waltzer, 04-1032 (La.10/8/04), 883 So.2d 973 (two-year suspension imposed upon an attorney who, among other misconduct, neglected three legal matters, failed to communicate with three clients, failed to properly terminate representations, and failed to cooperate with the ODC); In re: Wharton, 03-1816 (La. 10/17/03), 872 So.2d 459 (three-year suspension imposed upon an attorney who neglected seven legal matters, failed to communicate with four clients, failed to refund unearned fees to five clients, and failed to cooperate with the ODC in three investigations); and In re: Laque, 03-3539 (La.6/25/04), 876 So.2d 753 (disbarment imposed upon an attorney who neglected and abandoned sixteen legal matters without notice to his clients, failed to communicate with his clients, failed to refund unearned fees, closed his office without notice to his clients, and failed to cooperate with the ODC).