text:
    THE FLORIDA BAR, Complainant, v. Mark F. GERMAIN, Respondent. The Florida Bar, Complainant, v. Mark F. Germain, Respondent.
    Nos. SC05-947, SC05-1096.
    Supreme Court of Florida.
    May 17, 2007.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and JoAnn Marie Stalcup, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.
    Mark F. Germain, pro se, Leesburg, FL, for Respondent.
   PER CURIAM.

We review a referee’s report recommending that Respondent Mark F. Ger-main be found guilty of unethical conduct and suspended from the practice of law for ninety-one days. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained below, we approve the referee’s findings of misconduct but disapprove the referee’s recommendation of a ninety-one day suspension and instead suspend the Respondent from the practice of law for one year.

PROCEDURAL BACKGROUND

The Florida Bar filed two separate complaints against Germain, which were consolidated and tried together before a referee. Before the hearing, the Bar and Germain entered into a stipulation about the facts. The stipulation established many of the facts alleged in the complaints, as well as other facts not alleged.

The referee filed two separate reports. The first report made factual findings and conclusions of guilt in both cases. The second and final report, issued after a separate hearing on the issue of discipline, contained the findings and conclusions contained in the first report, factual findings not made in the first report, findings concerning aggravating and mitigating factors, and recommendations of discipline. The facts, as found by the referee or as established by the stipulation, are summarized below.

FACTUAL BACKGROUND

Case No. SC05-947

This case arose from a dispute between Germain and Michael C. Norvell concerning ownership of a building called the Lake Law Center (the building) and the employment of James Cardona, who was a paralegal first for Germain and then for Norvell. In November 2002, Germain executed a promissory note for $100,000 for Norvell in exchange for a one-third ownership of the building, where Germain and Norvell operated separate law firms. In April 2003, Norvell offered to purchase Germain’s interest for $100,000. Germain rejected the offer.

In March 2004, Germain fired Cardona, his paralegal. The following month, Nor-vell increased his offer for Germain’s interest in the building to $140,000. He also offered, in writing, to sell his two-thirds share to Germain for $280,000. Germain tentatively accepted the offer to purchase Norvell’s interest, but was unable to obtain financing.

That same month, on April 17, Germain filed a police report alleging that Norvell had physically attacked him. The officer reported seeing a “large contusion on Mr. Germain’s arm along with several slight abrasions.” On April 19, Norvell entered one of the offices in the building, removed Germain’s files, and sat behind the desk and in front of the computer. Germain and Norvell disputed ownership of that office. That same day, Cardona reported to work at the building, as Norvell had hired him. Cardona and Germain argued. Germain physically escorted Cardona off the premises.

The next day, April 20, Germain delivered a “no trespass” warning to Cardona’s mother. Germain placed a lock on the door to the disputed office and placed a no-trespass warning on the door. The following day, Norvell removed the door from its hinges and entered the office. Germain called the police, who responded. Germain accused Cardona of trespassing even though he knew Cardona had Norvell’s permission to be there and that Norvell owned two-thirds of the building. Ger-main then filed against Norvell a Petition for Injunction for Protection against Repeat Violence (Norvell Petition). ■ In it, Germain swore that Norvell had a “hand gun with ammunition in our office.” The court entered a temporary injunction against Norvell.

Germain also filed against Cardona a Petition for Injunction for Protection against Repeat Violence (Cardona Petition). In it, Germain alleged that “Cardo-na is stalking me and is trying to sabotage my law practice.”' The petition did not allege any acts of-violence or repeat violence by Cardona, as those terms are defined in section 784.046(4)(a)-(b), Florida Statutes (2004), rendering the petition meritless. Cardona responded by filing against Germain a Petition for Injunction for Protection' against Repeat Violence (Germain Petition).

A week later Norvell filed a suit for partition of the building and other relief (Partition Action).. Germain filed an emergency motion in which he swore that “Nor-vell is also a convicted felon and Germain has personally observed Norvell handle a-loaded pistol in the office.”

On June 18, 2004, Germain and Norvell entered into a settlement agreement in the Partition Action. Germain agreed to withdraw the Norvell Petition and to execute an affidavit about the firearm allegation (June 18 Affidavit). The June 18 Affidavit stated: “after some thought, I recall that the pistol was actually in possession of the office paralegal, Rebecca S. Skipper and not Michael C. Norvell.” It also stated: “At no time, was the gun ever in Norvell’s office or in Norvell’s possession” and “[t]hat sometime in 2001 Rebecca S. Skipper removed the gun from the office.” Germain signed it under oath.

A few days later, Cardona filed a motion to dismiss the Cardona Petition. The motion also asked the court to award him $30,390 in attorney’s fees as a sanction against Germain for filing a frivolous petition. The court held a hearing on the motion. Germain subpoenaed the police officer who took Germain’s trespassing complaint, but the court would not allow the officer or Germain to testify. The court did allow Germain to proffer the testimony. The court dismissed the petition, finding that it “does not allege facts supporting an injunction for protection against repeat violence, and the facts proffered by petitioner failed to establish a basis for such an injunction. There was no evidence of violence or imminent fear of violence by respondent toward petitioner.”

On July 1, 2004, Norvell paid Germain $140,000 for his one-third share of the building. Two weeks later, the court entered an amended order dismissing the Cardona Petition, denying Germain’s motion for reconsideration, and granting Car-dona’s motion for sanctions. The court found Germain’s claims were “so clearly devoid of merit both on the facts and the law as to be completely untenable.”

A week later Germain filed a motion to disqualify the judge in the Cardona Petition case. The motion made sworn allegations that the judge should be disqualified, in part, because of a conflict of interest presented by his relationship with Lennon Bowen, an attorney, and Bowen’s relationship with Cardona. Two days later he filed a motion for reconsideration of the Cardona Petition’s dismissal, arguing the dismissal was improper without an eviden-tiary hearing. Germain swore the Cardo-na Petition was not frivolous because “convicted felon Michael C. Norvell’s possession of a gun gun [sic] in the office is not frivolous.”

Seven months later, in March 2005, Ger-main again moved the trial court to set aside the order dismissing the Cardona Petition. The motion alleged that the judge who dismissed the petition, who was no longer presiding over the case, had been Chief Assistant State Attorney when Germain sued the State Attorney years before and that the judge, as an assistant state attorney, prosecuted Germain in a contempt proceeding a few years later. According to Germain, Bowen, who had represented Cardona in prior proceedings, was the judge’s campaign manager when the judge dismissed the petition. Germain also alleged the judge had solicited a campaign contribution from him while the petition was pending and that the solicitation was “inappropriate, if not illegal.” In fact, Bowen was not the judge’s campaign manager and never represented Cardona. The solicitation was a mass-mailed invitation to a fund-raising event mailed by a host committee, not the judge.

In several pleadings, in hearings before the trial court and the referee, and in his brief filed in this Court, Germain referred to Norvell as “a convicted felon,” “cunning,” “devious,” and “diabolical.” He accused Norvell of killing an elderly client and threatening to kill him. Germain referred to Cardona as “a fugitive” and accused him of trespassing, stalking, and stealing. He described them as “two convicted criminals vouching for each other.”

The referee found “that- no reasonable person would have feared that Norvell would kill, and that no reasonable person would have had a fear that would justify giving a false statement under oath.” He also found the violence between Norvell and Germain had declined over time and that Germain had willingly remained in the space-sharing arrangement with Norvell.

Case No. SC05-1096

The second Bar complaint arose from Germain’s actions in State v. Guerreo, No. 2004-CF-2140 (Fla. 5th Jud. Cir. Oct. 26, 2004) (order of contempt). Germain represented the defendant in a proceeding in September 2004. During that proceeding, the judge warned Germain that he was going to cite Germain for contempt if he continued to interrupt him. Despite the warning, Germain interrupted twice more. The judge cited him for two counts of direct criminal contempt. After a hearing, the judge found Germain guilty of two counts of contempt and fined him $100. Germain paid the $100, but filed a motion for reconsideration. The trial judge dismissed the order of contempt, but refused to order the refund of Germain’s $100 fine.

RULE VIOLATIONS

The referee concluded that Germain’s conduct violated rule 4-3.1 (failing to assert only meritorious claims and contentions), rule 4-3.3(a)(l) (making a false statement of material fact or law to a tribunal), rule 4-3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), 4-3.5(c) (engaging in conduct intended to disrupt tribunal), and rule 4-8.4(d) (engaging in conduct in-connection with the practice of law that is prejudicial to the administration of justice) (three counts) of the Rules Regulating the Florida Bar.

The referee found four aggravating factors: (1) previous discipline, including a public reprimand in 1997 for making disparaging remarks in several instances about opposing counsel and a judge and failing to follow the rulings of a trial judge; (2) a pattern of misconduct as established by the earlier misconduct of a similar nature; (3) multiple offenses; and (4) refusal to acknowledge the wrongful nature of his conduct. The referee found three mitigating factors: (1) absence of a dishonest or selfish motive; (2) personal or emotional problems; and (3) physical or mental disability or impairment.

RECOMMENDATION OF DISCIPLINE

The referee recommended a ninety-one-day suspension, followed by one year of probation after reinstatement; an evaluation by a Bar-approved mental health professional and abiding by any recommended treatment or counseling, continuing through the probationary period; and reimbursement of the Bar’s costs. The referee relied on Florida Standards for Imposing Lawyer Sanctions 6.12, 6.22, and 8.2, as well as Florida Bar v. Adams, 641 So.2d 399 (Fla.1994).

Germain petitioned for review of the report. He contends the referee erred in excluding evidence of Norvell’s alleged exploitation of an elderly client, challenges several of the findings, questions the application of two of the aggravating factors, and argues that the referee erred in failing to find several additional mitigating factors. He also takes issue with the recommendations of a mental health evaluation and ninety-one-day suspension.

ANALYSIS

We first address the exclusion of evidence issue. A referee’s admission of evidence is reviewed for abuse of discretion. Fla. Bar v. Rotstein, 835 So.2d 241, 244 (Fla.2002). In this case, the referee excluded testimony about Norvell’s alleged actions involving an elderly client. Ger-main argues that this evidence was relevant to whether his fear of Norvell was reasonable and well-grounded, to support his claim that he signed the June 18 Affidavit under duress.

Assuming that Germain’s allegations are true, the facts that Norvell unethically made himself a beneficiary under his client’s will and then decided to remove her from life support does not tend to prove that he coerced Germain to execute the June 18 Affidavit. The referee did not abuse his discretion in excluding it. See § 90.404(2)(a), Fla. Stat. (2005) (providing that similar fact evidence of other crimes, wrongs, or acts is inadmissible when relevant solely to prove bad character or propensity). Moreover, any error would have been harmless. There is competent, substantial evidence in the record that Ger-main did not sign the June 18 Affidavit under duress. Germain never advised the court that he had been coerced into signing it. He never sought to have the settlement overturned or set aside. He never filed a police report to the effect that Norvell unlawfully possessed a gun. Ger-main accused Norvell of having a gun in the office only in civil pleadings and civil hearings. These were not the actions of someone who believed he was in danger. Accordingly, we approve the referee’s decision to exclude this evidence.

We next consider the factual findings Germain challenges. The party contending that the referee’s findings of fact and conclusions as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions. Fla. Bar v. Carlon, 820 So.2d 891, 898 (Fla.2002). Specifically, Germain challenges the following findings: (1) the Car-dona Petition was frivolous; (2) Germain’s comments concerning the trial judge, Nor-vell, and Cardona were inappropriate; (3) Germain misled the police officer by not telling him that Cardona had Norvell’s permission to be on the premises of the building; (4) Germain made false statements under oath; (5) Germain was not under duress when he executed the June 18 Affidavit; and (6) Norvell’s violence toward Germain had declined over time.

Germain points to contradictory evidence in the record or, presumably, in his proffers, to support his claims of error. He nevertheless fails to meet his burden to demonstrate that there is no evidence in the record to support the referee’s findings. The findings are supported in large part by the facts to which Germain stipulated.

In the June 18 Affidavit, Germain stated under oath that Norvell never possessed the gun, the gun was in the possession of a paralegal, and the paralegal had removed the gun from the office in 2001. Yet, both before and after June 18, 2004, Germain filed pleadings alleging that Nor-vell had a gun in the office. He tries to defend the fact that he lied under oath, either in the June 18 Affidavit or in the pleadings filed before and after it, by claiming that Norvell coerced him to sign the affidavit. The referee found that “no reasonable person” would have been in fear of his life and that “no reasonable person” would have felt compelled to lie under oath.

Germain’s failure to advise the court that he signed the affidavit under duress is compelling evidence that he was not coerced into signing it. The assertion of duress has other flaws, however. Accusing Norvell of having possession of a gun in subsequent civil pleadings was inconsistent with his purported fear of Norvell. Further, if the building was worth $700,000, as Germain claimed in his brief, Norvell would not have offered to sell Ger-main his two-thirds interest for $280,000. For that matter, Germain would have been able to obtain financing for $280,000 if the collateral had been worth over twice that amount.

Germain’s points concerning the other disputed factual findings are equally flawed and boil down to credibility assessments. As the referee is in a unique position to assess witness credibility, this Court will not overturn his judgment absent clear and convincing evidence. See, e.g., Fla. Bar v. Carricarte, 733 So.2d 975, 978 (Fla.1999). There is no evidence that the referee’s judgment is incorrect in this case. Accordingly, we approve these factual findings.

Germain also argues the referee erred in finding the aggravating factor of previous discipline based upon a finding that he had been publicly reprimanded for disparaging remarks about a judge. He also challenges the aggravating factor of refusal to acknowledge the wrongful nature of his conduct. Finally, he faults the referee for failing to find the following mitigating factors: (1) imposition of other penalties or sanctions; (2) remorse; and (3) remoteness of prior offenses.

Like other factual findings, a referee’s findings of mitigation and aggravation carry a presumption of correctness and will be upheld unless clearly erroneous or without support in the record. Fla. Bar v. Arcia, 848 So.2d 296 (Fla.2003). A referee’s failure to find that an aggravating factor or mitigating factor applies is due the same deference. See Fla. Bar v. Morse, 784 So.2d 414, 415-16 (Fla.2001); Fla. Bar v. Bustamante, 662 So.2d 687, 687 (Fla.1995); Fla. Bar v. Hecker, 475 So.2d 1240, 1242 (Fla.1985). Germain fails to meet his burden.

Competent, substantial evidence supports the referee’s findings. As to the mitigating factor that other penalties already have been imposed, Germain paid Cardona $15,000 to settle an attorney’s fee award greater than $30,000. Thus, his payment was less than half the amount awarded. Moreover, the Cardona Petition is only a small part of the conduct resulting in discipline. The $100 fine Germain paid in the criminal contempt-of-eourt case is also just a small part of this case. In light of all of Germain’s misconduct, we cannot say the referee erred in failing to find that the imposition of these penalties or sanctions constituted mitigation.

Similarly, Germain presented little or no evidence of remorse upon which the referee could have based a finding of this mitigating factor. While Germain claims he apologized, both verbally and in writing, to the judge in the criminal contempt-of-court case, there is nothing to suggest he experienced any true remorse for his conduct, other than that his conduct cost him money. It is clear from his arguments that he still considers himself an innocent victim, first of Norvell and Cardo-na and then of the Bar, and still believes that all of his conduct was appropriate and justified.

The mitigating factor of the remoteness of prior offenses also does not apply. On June 28, 2001, the Court ordered Florida Bar diversion in Case No. SC96944. This case was resolved one year before Germain became embroiled with Norvell as a co-owner of the building and only three years before most of the misconduct at issue here. Four years before the Florida Bar diversion, this Court publicly reprimanded Germain in Case No. SC90589. See Fla. Bar v. Germain, 705 So.2d 11 (Fla.1997) (table).

These same facts support the finding of the aggravating factor of previous discipline. In 1997, we publicly reprimanded Germain for making disparaging comments about opposing counsel and failing to comply with a trial court order. (Although the Bar dismissed the charge that he made disparaging comments about opposing counsel and a trial judge, the aggravating factor of previous discipline still applies.) The aggravating factor of previous discipline does not require the previous offense to be of the same nature. Rather, previous discipline for the same kind of misconduct establishes a pattern of misconduct or multiple offenses or increases the weight given to the previous discipline factor.

Germain’s argument that he should not be penalized for continuing to assert his innocence in these proceedings is a closer question. The Court has held that “it is improper for a referee to base the severity of a recommended punishment on an attorney’s refusal to admit alleged misconduct or on ‘lack of remorse’ presumed from such refusal.” Fla. Bar v. Lipman, 497 So.2d 1165, 1168 (Fla.1986); see also Fla. Bar v. Karten, 829 So.2d 883, 889-90 (Fla.2002); Fla. Bar v. Mogil, 763 So.2d 303, 312 (Fla.2000); Fla. Bar v. Corbin, 701 So.2d 334, 337 (Fla.1997).

At first glance, these cases seem to be in conflict with the Court’s decision in Florida Bar v. Gersten, 707 So.2d 711 (Fla.1998). Upon closer examination, however, we conclude they are not. In Gersten, the respondent continued to refuse to comply with a court order to submit to the taking of his sworn statement after the order had been affirmed on appeal. Whether the respondent had an obligation to comply with the court’s order was a legal issue, not a factual one. In Lipman, Karten, Mogil, and Corbin the respondents disputed the factual findings that they had engaged in the conduct giving rise to the rule violations. These were pure findings of fact.

The situation here is like that in Ger-sten, and unlike the situations in Lipman, Karten, Mogil, and Corbin. Germain has stipulated to most of the facts. He does not dispute that he engaged in the conduct. He nevertheless continues to assert that his actions did not constitute unethical conduct. These are legal issues. With a minimum of legal research, Germain could have discovered that his conduct did constitute unethical conduct and either curtailed his activities or avoided them altogether. Where the issue rests on a legal question, the aggravating factor of failing to acknowledge the wrongfulness of the conduct clearly applies. Accordingly, we approve the referee’s findings concerning aggravating and mitigating factors.

Lastly, we address the recommendation of discipline. Germain argues that the recommendation of a mental health evaluation violates due process because he had no notice that his mental health was at issue. He also argues that the recommendation of a ninety-one-day suspension is improper, first, because he engaged in no misconduct and, second, because it is too severe.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because it is ultimately the Court’s responsibility to order the appropriate sanction. Fla. Bar v. Miller, 863 So.2d 231, 235 (Fla.2003); Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, 15, Fla. Const. Generally, the Court will not second-guess a referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. Miller, 863 So.2d at 235; Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

The nature of Germain’s arguments, the unusual series of events giving rise to this case, and Germain’s inability to grasp the problematic nature of his conduct are enough to raise the issue of Ger-main’s mental stability. The real issue, however, is whether Germain was or should have been aware that his mental state was at issue. See Carricarte, 733 So.2d at 979 (approving recommendation of mental health evaluation where Bar counsel mentioned a mental health evaluation in his closing argument at the conclusion of the guilt phase of the hearing).

Germain’s own theory of defense made his mental state an issue. He claimed he was the victim of several vicious, unprovoked attacks and that he was in fear for his life when he signed the June 18 Affidavit. In addition, the referee’s first report, which preceded the sanctions phase of the hearing, stated: “the undersigned finds that no reasonable person would have feared that Norvell would kill, and that no reasonable person would have a fear that would justify giving a false statement under oath.” (Emphasis added.) The referee made several findings concerning the incidents of violence between Norvell and Germain and concluded that “the violence in these incidents declined over time. It is notable that after the July 2002 incident, Respondent wijlingly remained in the space-sharing arrangement with Norvell.”

These findings and Germain’s own arguments were sufficient to put Germain on notice that his mental state was at issue. Accordingly, we approve the recommendation for a mental health evaluation.

Next, we consider the appropriate discipline for Germain’s misconduct. As set forth above, we will not second-guess a referee’s recommended discipline as long as it has a reasonable basis in existing caselaw and the Florida Standards for Imposing Lawyer Sanctions. Having reviewed the standards, the cases involving similar misconduct, and the aggravating and mitigating factors found by the referee, we disapprove the referee’s recommendation of a ninety-one-day suspension and instead suspend Germain for one year.

Standards 6.12, 6.22, and 8.2, which the referee cited, all support a suspension. To determine the proper length, we obtain guidance from our previous cases. In Adams, 641 So.2d 399, in a letter and at a hearing before a judge the respondent accused three opposing counsel of attempting to suborn perjury. None of the attorneys had done so; although there was cause for respondent to suspect one of the attorneys, there was no basis to suspect the others. This Court suspended him for ninety days. Our opinion does not mention aggravating or mitigating factors or previous discipline.

When we consider that Germain was previously disciplined for the same kind of misconduct and that he lied under oath and engaged in other misconduct, it is clear that a longer suspension is warranted here than in Adams. The Court views cumulative misconduct more seriously than isolated instances. Carlon, 820 So.2d at 899. This is the second time Germain comes before the Court for making disparaging comments about other professionals. These circumstances alone support the recommended ninety-one-day suspension.

However, that Germain lied under oath convinces us that an even longer suspension is warranted.

This court considers a lawyer who intentionally lies under oath to have committed an extremely serious offense. Our condemnation of this type of misconduct is not of recent vintage. In Dodd v. Florida Bar, 118 So.2d 17, 19 (Fla.1960), this Court stated:
No breach of professional ethics, or of the law, is more harmful to the administration of justice or more hurtful to the public appraisal of the legal profession than the knowledgeable use by an attorney of false testimony in the judicial process.
We have warned that such conduct warrants severe discipline and have dealt harshly with those who commit this offense.

Fla. Bar v. Cibula, 725 So.2d 360, 364 (Fla.1999) (suspending an attorney for ninety-one days after he lied under oath during two court hearings held in connection with alimony obligations); see also Fla. Bar v. Nunes, 734 So.2d 393 (Fla.1999) (imposing a three-year suspension for filing a frivolous lawsuit, continuing to represent clients after being discharged, making disparaging remarks about judges and opposing counsel, and making false representations to a tribunal, among other things); Fla. Bar v. Klausner, 721 So.2d 720 (Fla.1998) (imposing a three-year suspension for forging signatures on documents submitted to the court and lying about the misconduct to the court and in a sworn statement to an investigator with the state attorney’s office, among other things); Fla. Bar v. Vining, 707 So.2d 670 (Fla.1998) (imposing a three-year suspension for misrepresentations in a stipulation submitted to the court while seeking funds in the court registry); Fla. Bar v. Segal, 663 So.2d 618, 622 (Fla.1995) (imposing a three-year suspension for making a false statement in a petition for discharge submitted to the probate court); Fla. Bar v. Kleinfeld, 648 So.2d 698 (Fla.1994) (imposing a three-year suspension for making false statements in an affidavit seeking disqualification of a judge in a contempt hearing against the attorney, among other things); Fla. Bar v. O’Malley, 534 So.2d 1159, 1162 (Fla.1988) (imposing a three-year suspension for false testimony in a suit against the attorney for return of bond collateral entrusted to him).

These cases support a three-year suspension. Nevertheless, in light of the mitigating factors found by the referee (absence of a dishonest or selfish motive, personal or emotional problems, and physical or mental disability or impairment), we impose a suspension of one year.

CONCLUSION

For the reasons stated above, Mark F. Germain is hereby suspended from the practice of law for one year. The suspension will be effective thirty days from the filing of this opinion so that Germain can close out his practice and protect the interests of existing clients. If Germain notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Germain shall accept no new business from the date of this opinion until he is reinstated to the practice of law.

Before his reinstatement, Germain must submit proof that he has been evaluated by a licensed mental health professional approved by The Florida Bar, has complied with any recommended treatment or counseling, and is either continuing in treatment or counseling or has satisfactorily completed such treatment or counseling.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32899-2300, for recovery of costs from Mark F. Germain in the amount of $4,485.84, for which sum let execution issue.

It is so ordered.

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

      . In September 1984, Norvell was granted a disciplinary resignation from The Florida Bar after he was suspended for criminal conduct. The underlying criminal conduct was a conviction in federal court of a felony drug offense for which he was sentenced to five years in prison. Norvell was reinstated to the practice of law in 1992.

      . Cardona received two traffic citations for DUI in Alabama in October 1986. A warrant for his arrest was issued after he failed to appear. In November 2002, Cardona entered a guilty plea to the first DUI citation. The second Alabama DUI was dismissed. At that point, Cardona was no longer a fugitive.

      . Standard 6.12 provides: "Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action.” Standard 6.22 provides: "Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.” Standard 8.2 provides: "Suspension is appropriate when a lawyer has been publicly reprimanded for the same or similar conduct and engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.”


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    Leroy REEVES, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-504.
    Supreme Court of Florida.
    May 17, 2007.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Mary G. Jolley and Kellie A. Nielan, Assistant Attorneys General, Day-tona Beach, FL, for Respondent.
   BELL, J.

When multiple crimes arise out of the same criminal episode, may a sentence under the Prison Releasee Reoffender (PRR) statute be followed by a Criminal Punishment Code (CPC) sentence that is not enhanced beyond the statutory maximum? In Reeves v. State, 920 So.2d 724 (Fla. 5th DCA 2006), the Fifth District answered this question in the affirmative. Leroy Reeves seeks review of that decision based on its express and direct conflict with the Second District’s decision in Rodriguez v. State, 883 So.2d 908 (Fla. 2d DCA 2004). We have jurisdiction to resolve this conflict. See art. V, § 3(b)(3), Fla. Const.

We agree with the Fifth District and hold that a PRR sentence followed consecutively by a CPC sentence not otherwise enhanced beyond the statutory maximum is a legal sentence, even if the crimes arose from a single criminal episode. Accordingly, we approve the Fifth District’s decision in Reeves and disapprove the Second District’s decision in Rodriguez. In addition to resolving this conflict issue, we also agree with the Fifth District that the four crimes Reeves committed arose from two separate criminal episodes.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 29,1999, Officer Denys Neff of the Leesburg Police Department was dispatched to the Chevron gasoline station at the intersection of Main Street and Job-bins Street after the burglary alarm sounded. She approached the station and noticed that the storefront glass had been broken and that two vehicles, a Cadillac and a Ford, were parked out front. Officer Neff observed one man run out of the store and drop a box. She then observed two other men behind the Cadillac, one of whom was Reeves. These two men began running in the same direction as the first individual, then changed direction and ran back behind the Chevron store. Next, Reeves entered the Ford vehicle and proceeded onto Jobbins Street, while his companion ran into the woods. Officer Neff pursued Reeves. As Officer Neff approached, the Ford began to slow down, and Reeves fled the still-moving vehicle. Officer Neff wrestled with Reeves in an attempt to apprehend him, but he was able to escape and run into the woods. Officer Neff returned to the Chevron store, set up a perimeter, and noticed that the trunk of the Cadillac was filled with stolen boxes of cigarettes. Two hours later, Reeves was taken into custody after being detected by a canine unit. The officers brought Reeves to the Chevron station where Officer Neff identified him.

A jury convicted Reeves of four third degree felonies as charged: count (1) burglary of a structure; count (2) grand theft; count (3) resisting a law enforcement officer with violence; and count (4) battery on a law enforcement officer. At sentencing, the court imposed the five-year sentence mandated by the Prison Releasee Reoffen-der (PRR) statute, section 775.082(9), Florida Statutes (Supp.1998), for Count (3). This PRR sentence was followed by three consecutive five-year sentences under the Criminal Punishment Code (CPC) for counts (1), (2), and (4). Reeves, 920 So.2d at 725.

Subsequently, Reeves filed a Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. He argued that his consecutive sentences were illegal because they arose from a single criminal episode. The trial court denied the motion, determining that each of Reeves’ offenses was separate and not part of the same criminal episode. See id.

On appeal, the Fifth District concluded that there were two criminal episodes, the first consisting of the burglary and grand theft charges, and the second consisting of the resisting with violence and battery on a law enforcement officer charges. Id. Further, the Fifth District held that “a PRR sentence, followed by a consecutive criminal punishment code, sentence not otherwise enhanced beyond the statutory maximum, is not an illegal sentence, even if the crimes arise from a single episode.” Id. at 726. The court reasoned that, “[u]n-like a habitual offender sentence, a PRR sentence is not enhanced beyond the statutory maximum; rather, the PRR statute establishes that the only lawful sentence for a PRR offender is the statutory maximum, which must be served in its entirety.” Id. (citing § 775.082(9), Fla. Stat. (2004); Powell v. State, 881 So.2d 1180, 1182 (Fla. 5th DCA 2004)). On this basis, the court .affirmed in part but remanded solely to permit the trial court to clarify the sentencing documents to reflect that the PRR sentence must be served first to allow Reeves the opportunity to earn gain time and to preserve his entitlement to any possible early release. Id. at 725 (citing Powell, 881 So.2d at 1182).

Reeves filed a notice to invoke the discretionary jurisdiction of this .Court properly citing conflict with the Second District’s holding in Rodriguez v. State, 883 So.2d 908 (Fla. 2d DCA 2004). In Rodriguez, the Second District determined that “consecutive sentences, which arise from one criminal episode and together exceed the maximum incarceration permitted for any individual count under the Prison Re-leasee Reoffender Punishment Act” are illegal. 833 So.2d at 909. We accepted jurisdiction to resolve the decisional conflict. However, prior to discussing this decisional conflict, we must resolve another issue Reeves raises in this case.

II. DISCUSSION

Reeves first claims that all four of his crimes arose from the same criminal episode. He then raises the conflict issue. He asserts that the sentences imposed for each of his four crimes must run concurrently because his sentence under the PRR statute is the maximum he can receive for the one criminal episode. If accepted, his argument is that his total sentence cannot exceed five years. We disagree and conclude (1) that there were two separate criminal episodes and (2) that the Legislature intended that courts have the discretion to impose PRR and CPC sentences consecutively for crimes arising out of the same episode.

A.

As to Reeves’ first claim, we agree with the Fifth District that there were two distinct criminal episodes. See Reeves, 920 So.2d at 725. Episode one occurred at the Chevron station and involved count (1) burglary of a structure and count (2) grand theft. Episode two occurred at the church behind the Chevron station and involved count (3) resisting a law enforcement officer with violence and count (4) battery on a law enforcement officer. See State v. Paul, 934 So.2d 1167, 1173 (Fla.2006) (similar facts).

Reeves concedes that if he had received standard CPC sentences for the four offenses committed in these two episodes, the trial court would have had the discretion to impose his sentences consecutively, resulting in a twenty-year sentence. See § 775.021(4), Fla. Stat. (1997); Lifred v. State, 643 So.2d 94, 96 (Fla. 4th DCA 1994) (holding that section 775.021(4), Florida Statutes, generally grants judges “discretion to impose separate sentences, either concurrently or consecutively, for each separate criminal offense arising out of a single criminal transaction or episode”). Consequently, given our finding that there are two criminal episodes, Reeves’ two CPC sentences for episode one may run consecutively both to each other and to the sentences imposed for the crimes committed in episode two.

B.

We now address the conflict question. In doing so, we focus on criminal episode two to determine whether Reeves’ CPC sentence for battery on a law enforcement officer (count 4) may run consecutively to his PRR sentence for resisting a law enforcement officer with violence (count 3). As did the Fifth District, we conclude that the trial court had the discretion to impose Reeves’ CPC sentence for count 4 consecutively to his PRR sentence for count 3. To reach this conclusion, we first examine the PRR statute. We find that this statute expresses clear legislative intent that prison releasee reoffen-ders be “punished to the fullest extent of the law” and that trial judges have the discretion to impose greater sentences of incarceration as authorized by law. See § 775.082(9)(c)-(d), Fla. Stat. (Supp.1998). Second, we address Reeves’ argument that the PRR mandatory minimum sentence serves as the statutory maximum sentence for all offenses arising out of the same criminal episode. We conclude that this argument is contrary to our holdings in Grant v. State, 770 So.2d 655 (Fla.2000), and Nettles v. State, 850 So.2d 487 (Fla.2008). Finally, we disapprove the Second District’s holding in Rodriguez because it mistakenly relies on our precedent construing the Habitual Violent Felony Offender (HVFO) statute to reach the conclusion that consecutive PRR and non-PRR sentences are prohibited.

1. The Plain Meaning of the PRR Statute

We first examine the PRR statute to determine whether the Legislature intended (1) to give courts discretion to impose PRR and CPC sentences consecutively to each other; or as Reeves argues, (2) for a PRR sentence to serve as the statutory maximum for all offenses arising out of the same criminal episode.

Questions of statutory interpretation are reviewed de novo. See Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla.2004). “The cardinal rule of statutory construction is ‘that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as expressed in the statute.’ ” City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla.1984) (quoting Deltona Corp. v. Fla. Pub. Serv. Comm’n, 220 So.2d 905, 907 (Fla.1969)). “It is a fundamental rule of construction that statutory language cannot be construed so as to render it potentially meaningless.” Ellis v. State, 622 So.2d 991, 1001 (Fla.1993) (citing Snively Groves, Inc. v. Mayo, 135 Fla. 300, 184 So. 839 (1938)). “[Statutory enactments are to be interpreted so as to accomplish rather than defeat their purpose.” Lewis v. Mosley, 204 So.2d 197, 201 (Fla.1967) (citing 6 Fla. Jur., Constitutional Law § 14 (1956); Owens v. Fosdick, 153 Fla. 17, 13 So.2d 700 (1943)).

The text of the PRR statute expresses the intent or purpose that a PRR sentence not serve as the maximum sentence for all crimes arising out of the same criminal episode. The PRR statute states in pertinent part:

(9)(a)l. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
o. Any felony that involves the use or threat of physical force or violence against an individual;
within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor.
2. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffen-der as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:
a. For a felony punishable by life, by a term of imprisonment for life;
b. For a felony of the first degree, by a term of imprisonment of 30 years;
c. For a felony of the second degree, by a term of imprisonment of 15 years; and
d. For a felony of the third degree, by a term of imprisonment of 5 years.
(b) A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.
(c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.
(d)l. It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection, unless any of the following circumstances exist:
a. The prosecuting attorney does not have sufficient evidence to prove the highest charge available;
b. The testimony of a material witness cannot be obtained;
c. The victim does not want the offender to receive the mandatory prison sentence and provides a written statement to that effect; or
d. Other extenuating circumstances exist which preclude the just prosecution of the offender.

§ 775.082(9)(a)-(d)(l)., Fla. Stat. (Supp. 1998) (emphasis added). Paragraph (b) indicates that section 775.082(9) dictates a minimum sentence or sentencing floor, not a statutory maximum. Further, the emphasized portions of paragraphs (c) and (d)(1) indicate an intent to allow judges to impose greater punishments than those provided for in the PRR statute. Moreover, nothing in the PRR statute can be construed as restricting a trial judge’s general discretion to impose sentences consecutively or concurrently. See § 775.021(4), Fla. Stat. (2006) (“Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively.”). In light of this, the plain meaning of the PRR statute is that it provides a minimum sentence and that, given its allowance for imposition of the greatest sentence allowed by law, trial judges have the discretion to impose a CPC sentence consecutively to a PRR sentence. This Court’s opinions in Grant and Nettles are consistent with this reading of the PRR statute.

2. Grant and Nettles

In Grant and Nettles, the PRR statute was construed contrary to Reeves’ argument that his sentence under the PRR statute is the maximum overall sentence he can receive for all offenses arising out of the same criminal episode. In Grant, the defendant pled “no contest” to a charge of sexual battery and received one sentence of fifteen years as a habitual felony offender (HFO) with a mandatory minimum term of fifteen years as a prison releasee reoffender (PRR). 770 So.2d at 656-57. Construing the PRR Act, this Court stated:

[T]he Legislature’s intent both to provide a mandatory minimum term of imprisonment pursuant to the [Prison Re-leasee Reoffender] Act and to allow for imposition of the greatest sentence authorized by law is clear....
... [B]ecause “section 775.082(8)(c) only authorizes the court to deviate from the [Act’s] sentencing scheme to impose a greater sentence of incarceration,” a trial court is “without authority to sentence [a defendant to an equal sentence] under the habitual felony offender statute,” even where such sentence is imposed concurrently with the PRR sentence. Thus, the trial court erred in imposing two concurrent, equal sentences in this case ... because it is not authorized by the Act.

Id. at 659 (emphasis added) (third and fourth alterations in original) (quoting Walls v. State, 765 So.2d 738, 734 (Fla. 1st DCA 2000)). In Grant, we also referred to State v. Cotton, 769 So.2d 345 (Fla.2000), for the proposition that ■

[W]hen the [Prison Releasee Reoffen-der] Act is properly viewed as a mandatory minimum statute, its effect is to establish a sentencing “floor.” If a defendant is eligible for a harsher sentence “pursuant to [the habitual offender statute] or any other provision of law,” the court may, in its discretion, impose the harsher sentence. See § 775.082(8)(c), Fla. Stat. (1997).

Grant, 770 So.2d at 658 (emphasis added) (alterations in original) (quoting Cotton, 769 So.2d at 354).

In Nettles, 850 So.2d 487, we expressly addressed the interaction between the PRR statute and the CPC. Nettles entered a plea of guilty to two counts of attempted lewd and lascivious conduct, a third-degree felony, in exchange for concurrent PRR and CPC sentences of 66.4 months. Id. at 489. Subsequently, Nettles filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2), alleging that the trial court erred in sentencing him under both the PRR Act and the CPC. Id. Specifically, Nettles alleged that his sentence was illegal because it exceeded the “maximum” he could receive under the PRR statute, which was sixty months. The trial court denied the motion. On appeal, the First District read “the subsections at issue in pari materia, and in light of the legislative direction that offenders previously released from prison ‘be punished to the fullest extent of the law and as provided in this subsection .... ’ § 776.082(9)(d)l., Fla. Stat. (2000).” Nettles v. State, 819 So.2d 243, 245 (Fla. 1st DCA 2002). The First District held that “once a defendant is properly designated as a prison releasee reoffender, the defendant would not be barred from a CPC sentence greater than the mandatory sentence as specified in the PRRPA.” Id.

Approving the First District’s decision, this Court concluded that “a defendant may be sentenced pursuant to both the PRRPA and the CPC.” 850 So.2d at 492. We went on to explain:

[I]f we were to follow the logic of the dissent and hold that Nettles could only be sentenced to the 60 months provided by the PRRPA, the result would be a sentence less than that which he would have received, namely 66.4 months, had he not been sentenced as a prison re-leasee reoffender. Such an interpretation and application would completely ignore the intent of the Legislature in enacting the PRRPA. The Legislature unquestionably intended that those sentenced under the PRRPA would “be punished to the fullest extent of the law.” § 775.082(9)(d)l., Fla. Stat. (2000). We have repeatedly held that “ ‘[w]hen construing a statutory provision, legislative intent is the polestar that guides’ the Court’s inquiry. Legislative intent is determined primarily from the language of a statute.” State v. Rife, 789 So.2d 288, 292 (Fla.2001) (quoting McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998)). As Nettles does not contest that he qualifies for sentencing as a prison releasee reoffender, his negotiated sentence of 66.4 months, with the first 60 months being served pursuant to the PRRPA and the remaining 6.4 months served under the CPC, effectuates the Legislature’s intent in this case and comports with the applicable statutory provisions.
... Clearly, we have determined that the sentence provided by the PRRPA is not a mandatory sentence which must be imposed upon an eligible defendant. Rather it is a sentencing “floor,” which a judge may exceed if authorized by another provision of the law, such as the CPC.

850 So.2d at 493-94. We also held that this result was mandated by the CPC, section 921.0024(2), Florida Statutes (2000), which stated that “[i]f the lowest permissible sentence under the [CPC] exceeds the statutory maximum sentence as provided in section 775.082, the sentence required by the [CPC] must be imposed.”

As Gmnt and Nettles demonstrate, a CPC sentence may follow a PRR sentence for the same offense. By the same logic, a CPC sentence may follow a PRR sentence when they are for separate offenses arising out of the same criminal episode, as in Reeves’ case. Reeves’ position would “completely ignore the intent of the Legislature in enacting the PRRPA,” that prison releasee reoffenders “be punished to the fullest extent of the law.” Nettles, 850 So.2d at 493 (quoting § 775.082(9)(d)(l), Fla. Stat. (2000)). Accordingly, we find that Reeves’ sentence comports with the Legislature’s intent in enacting the PRRPA and our decisions in Grant and Nettles.

3. Rodriguez Disapproved

Given this reading of the PRR Act, we disapprove the Second District’s decision in Rodriguez. As noted earlier, we accepted jurisdiction of this case based on express and direct conflict between that decision and the Fifth District’s decision in Reeves. In Rodriguez, the Second District held that standard (CPC) sentences could not run consecutively to a PRR sentence where the crimes arose out of the same episode. 883 So.2d at 909. The Second District stated:

Mr. Rodriguez’s current sentences reflect a five-year minimum mandatory term of imprisonment [as a prison re-leasee reoffender] for aggravated assault, followed by concurrent standard five-year sentences for three counts of felony battery — in other words, a ten-year total sentence with a five-year minimum mandatory term. Based on Kiedrowski v. State, 876 So.2d 692 (Fla. 1st DCA 2004) [holding that the imposition of a non-HFO sentence following an HFO sentence which had been enhanced to the statutory maximum was improper where defendant’s two offenses arose out of a single criminal episode], and Fuller v. State, 867 So.2d 469 (Fla. 5th DCA 2004) [same], we conclude that these consecutive sentences, which arise from one criminal episode and together exceed the maximum incarceration permitted for any individual count under the Prison Releasee Reoffender Punishment Act, see § 775.082(9)(a)(3)(d), remain illegal and must be reversed.

Id. The Second District further reasoned that its conclusion conformed with our decisions in Daniels v. State, 595 So.2d 952 (Fla.1992) (holding that the trial court lacked discretion to impose consecutive mandatory minimum sentences under the Habitual Violent Felony Offender (HVFO) statute, section 775.084(4), Florida Statutes (Supp.1988), for offenses arising out of the same episode), and Hale v. State, 630 So.2d 521 (Fla.1993) (holding that the trial court lacked discretion to impose consecutive enhanced maximum sentences under the HVFO statute for offenses arising out of the same episode).

We disagree. Daniels and Hale were decided under the sentencing guidelines, not the Criminal Punishment Code. More significantly, in both Daniels and Hale, the habitual violent felony offender portion of the violent career criminal statute was at issue, not the PRR statute. Therefore, those two cases have little bearing on the interpretation of the PRR statute.

Similarly, the Second District misplaces reliance on Kiedrowski v. State, 876 So.2d 692 (Fla. 1st DCA 2004), and Fuller v. State, 867 So.2d 469 (Fla. 5th DCA 2004). Those cases involved the habitual felony offender statute portion of the violent career criminal statute and likewise have little bearing on the interpretation of the PRR statute. Most importantly, because we read the PRR statute as sanctioning consecutive PRR and CPC sentences for offenses arising out of the same episode, we reach the opposite conclusion to that of the Second District in Rodriguez.

III. CONCLUSION

For the foregoing reasons, we approve the Fifth District’s decision below in Reeves and disapprove the Second District’s decision in Rodriguez. In doing so, we hold that Reeves’ overall sentence of one PRR sentence followed by three consecutive CPC sentences does not violate the Legislature’s intent under the PRR statute or this Court’s prior precedent. Having determined that there were two separate criminal episodes, we also conclude that it was within the trial court’s discretion to impose Reeves’ sentences for the two offenses in episode one consecutively to each other, and to impose these sentences consecutively to the sentences in episode two. Finally, having concluded that a CPC sentence may be imposed consecutively to a PRR sentence for crimes arising out of the same episode, we conclude that it was within the trial court’s discretion to impose Reeves’ CPC sentence for battery on a law enforcement officer consecutively to his PRR sentence for resisting a law enforcement officer with violence. Thus, Reeves’ twenty-year overall sentence is legal.

It is so ordered.

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

      . Section 775.021(4)(a), Florida Statutes (1997), states:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the. sentences to be served concurrently or consecutively.

      . The ordering of sentences to run consecutively to each other is referred to as "stacking.” See Palmer v. State, 438 So.2d 1, 3 (Fla.1983).

      . In Nettles, 850 So.2d at 487, we interpreted the following portion of section 775.082(9)(a)(3), Florida Statutes (2000):
      Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender ... such defendant is not eligible for sentencing under the sentencing guidelines ....
      We reasoned in Nettles that this provision does not apply to CPC sentences. We distinguished the sentencing guidelines from the CPC, stating:
      Conceptually, the CPC and the former sentencing guidelines are not synonymous, and, therefore, the PRRPA's reference to the sentencing guidelines in section 775.082(9)(a)3. does not ... forbid sentencing under the CPC.
      850 So.2d at 493.

      . The Court in Grant also held that the imposition of both a PRR and an HFO sentence for the same offense did not violate double jeopardy because "the PRR Act operates as a mandatory minimum sentence. It does not create two separate sentences for one crime.” 770 So.2d at 658 (quoting Smith v. State, 754 So.2d 100, 101 (Fla. 1st DCA 2000)); cf. Jackson v. State, 659 So.2d 1060, 1062-63 (Fla.1995) (holding that a defendant could receive a mandatory minimum sentence for possession of a firearm to run concurrently with an HFO sentence for offenses occurring within a single criminal episode). Reeves does not present a double jeopardy claim; the issue in this case is one of statutory interpretation.


author: WOLF, J.

text:
    Sue M. COBB, in her official capacity as Secretary of State, State of Florida, and Joseph Negron, Intervenor, Appellants, v. Karen THURMAN, as Chairman of the Florida Democratic Party; the Florida Democratic Party; Arthur Anderson, in his official capacity as Supervisor of Elections of Palm Beach County; Vicki Davis, in her official capacity as Supervisor of Elections of Martin County; Gertrude Walker, in her official capacity as Supervisor of Elections of St. Lucie County; Gwen Chandler, in her official capacity as Supervisor of Elections of Okeechobee County; Joe Campbell, in his official capacity as Supervisor of Elections of Highlands County; Holly Whiddon, in her official capacity as Supervisor of Elections of Glades County; Lucretia A. Strickland, in her official capacity as Supervisor of Elections of Hendry County; and Mac V. Horton, in his official capacity as Supervisor of Elections of Charlotte County, Appellees.
    No. 1D06-5447.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2006.

      Peter Antonacci, Andy V. Bardos, and Allen C. Winsor of Gray Robinson, PA, Tallahassee, for Appellant Sue M. Cobb; Robert H. Fernandez, Bill L. Bryant, Jr., and Mia L. McKown of Akerman Senter-fitt, Miami, for Intervenor Joseph Negron.
    Mark Herron and Robert J. Telfer III of Messer, Caparello & Self, P.A., Tallahassee, Stephen F. Rosenthal, Miami, David M. Buckner, Miami, Richard B. Ro-senthal of Law Offices of Richard B. Ro-senthal, P.A., Miami, and Charles H. Lichtman of Berger Singerman, Ft. Laud-erdale, for Appellees Karen Thurman and Florida Democratic Party; Ronald A. La-basky of Young Van Assenderp, P.A., Tallahassee, for Appellees Arthur Anderson, Vicki Davis, Gwen Chandler, Joe Campbell, Lucretia A. Strickland, and Mac V. Horton; no appearance for Appellees Gertrude Walker and Holly Whiddon.
   WOLF, J.

This is an appeal from a final judgment issued by the circuit court granting injunc-tive relief to the appellees, including Karen Thurman, as Chairman of the Florida Democratic Party, and the Florida Democratic Party (collectively Florida Democratic Party).

The issue presented in this case is whether election officials may provide written notice to voters that a vote cast for a withdrawn candidate whose name appears on the ballot will be counted as a vote for a replacement candidate whose name does not appear on the ballot. The trial court issued an order granting a temporary injunction preventing the publication of such notice. We find that the statutory scheme supports the interpretation of the Secretary of State that an easily understandable, facially neutral and concisely stated notice of fact may be provided to the voters to ensure an informed electorate. We also determine that there is no statute that prohibits such limited explanatory material as long as it meets the impartiality requirements set out in sections 101.031(4) and 102.031(4)(a), Florida Statutes (2006).

In applying these standards, we determine that the email notice provided by the Secretary of State on October 3, 2006, failed to meet the impartiality requirements and, therefore, affirm the -trial court’s order precluding posting of, or delivery to, voters of said notice within the polling places of the relevant Congressional district. We determine, however, that the notice provided by the general counsel for the Florida State Association of Supervisors of Elections on October 11, 2006, complies with the statutory framework and, thus, may be used as information sheets at the polling places. As to this notice, we reverse the trial court’s order granting the injunction.

The facts in this case are undisputed. On September 29, 2006, U.S. Congressman Mark Foley (Foley), who represented Florida’s 16th Congressional District, resigned his office and withdrew as a candidate for reelection. Foley had been the nominee for the Republican Party for this Congressional seat. Due to Foley’s withdrawal, the Republican Party of Florida was left with a vacancy on its slate. On October 2, 2006, the Republican State Executive Committee designated State Representative Joseph Negron (Negron) as its new nominee for this seat.

However, because Foley’s withdrawal came after the State of Florida had certified the results of the 2006 primary election, pursuant to section 100.111(4)(a), Florida Statutes, it is Foley’s name, and not Negron’s, which will appear on the general election ballot. That statute requires: “[i]f the name of the new nominee is submitted after the certification of results of the preceding primary election, ... the ballots shall not be changed and the former party nominee’s name will appear on the ballot.” The statute further states, “Any ballots cast for the former party nominee will be counted for the person designated by the political party to replace the former party nominee.” Thus, in order to cast a vote for Negron, whose name appears nowhere on the ballot, a voter must actually select Foley’s name, despite his withdrawal from the election. The ballot itself does not contain any reference to this substitution of candidates, or to the statute explaining this mandated transfer of votes.

On October 3, 2006, the Secretary of State’s office sent an email to each supervisor of elections in the Congressional district recommending that the “notice language” be posted at all early voting sites and polling places to advise that any vote cast for Foley would be counted as a vote for Negron. This notice made no mention of the other two candidates on the ballot.

In addition, on October 11, 2006, the general counsel for the Florida State Association of Supervisors of Elections, issued a memorandum to the supervisors in Congressional District 16, recommending that they place an “information sheet” at polling places in this form:

IN THE CONGRESSIONAL DISTRICT 16 RACE
• A VOTE FOR MARK FOLEY (REP) WILL BE COUNTED FOR JOE NEGRON (REP), THE REPUBLICAN CANDIDATE.
• A VOTE FOR TIM MAHONEY (DEM) WILL BE COUNTED FOR TIM MAHONEY (DEM), THE DEMOCRATIC CANDIDATE.
• A VOTE FOR EMMIE ROSS (NPA) WILL BE COUNTED FOR EMMIE ROSS (NPA), THE NO PARTY AFFILIATION CANDIDATE.

Six of eight supervisors of elections in the affected Congressional district indicated that they would post such information at the polling places.

The Florida Democratic Party filed a complaint for emergency declaratory and injunctive relief arguing that it is not the role of the Secretary or the supervisors to present information to the electors at the polling place about the substitution of candidates on the ballot. Section 101.5611(1), Florida Statutes, “Instructions to electors,” states that the supervisors “shall provide instruction at each polling place regarding the manner of voting with the system. In instructing voters, no precinct official may favor any political party, candidate, or issue.” The Florida Democratic Party argued that advising voters concerning the substitution of one party’s candidate constitutes a partisan action favoring that party and that any document that effectively stated a vote for Foley was a vote for Negron served the purpose of soliciting a vote for Negron in violation of section 102.031(4)(a), Florida Statutes, which prohibits solicitation of voters inside the polling place or within 100 feet of the entrance to any polling place or early voting site.

The Secretary argued that Florida’s Election Code allows supervisors to provide clear, concise, facially neutral and legally accurate information to the public to enable voters to cast informed ballots and further allows authorized election officials to provide voters with material information concerning elections. The Secretary is the chief election officer of the state and is authorized to provide voter assistance to the public and to provide technical assistance to the supervisors on voter education. § 97.012, Fla. Stat. The Department of State is authorized to provide informational cards containing “information about how to vote and such other information as the Department of State may deem necessary” to the supervisors for the voters’ use. § 101.031(1), Fla. Stat.

Six of the eight supervisors appeared in circuit court and argued that section 101.5611(1), Florida Statutes, authorizes the supervisors to “provide instruction at each polling place regarding the manner of voting with the system.” In addition, the Voter’s Bill of Rights provides that voters have the right to ask for and receive assistance in voting and to receive written instruction to use when voting, and, upon request, oral instruction in voting from election officers. § 101.031(2), Fla. Stat. Relying on these sections, the six supervisors determined that the information sheet would be the best way to supply information to the voters regarding the substitute candidate.

After conducting a hearing, the trial court issued a final judgment granting in-junctive relief and ordered the supervisors not to post the proposed notice or deliver the notice to individual voters posing questions about the race in question. The trial court found that section 100.111(4), Florida Statutes, controlled the result because it deals specifically with the issue raised. The trial court noted that in section 100.111(4), the Florida Legislature did not mandate the posting or delivering of notices at polling places informing electors of the replacement as has been done by the Kentucky Legislature. Ky.Rev.Stat. Ann. § 118.227(3) (2006). The Kentucky statute states that if a replacement for a vacant candidate is made after the ballots are printed for the primary election, notices informing the voters of the change in the composition of the slate shall be posted at each precinct polling place. Instead, the Florida Legislature specifically directed that “the ballots shall not be changed and the former party nominee’s name will appear on the ballot.” § 100.111(4)(a), Fla. Stat. Although section 100.111(4) does not preclude the posting of notices, it specifically requires that the person no longer seeking the office appear on the ballot. While finding j various statutes authorize the Secretary of State to provide voter education assistance to the public and authorize the supervisors to provide instruction at each polling place regarding “the manner of voting with the system,” the trial court found that the statutes did not provide the authority to post notices regarding a particular race. The trial court found the phrase “manner of voting with the system” in section 101.5611(1), Florida Statutes, cannot not be interpreted to mean that the supervisors were authorized to provide guidance as to the “manner of voting” in a particular race. Further, the trial court found section 101.62(6), Florida Statutes, precludes the mailing of the proposed notices with the absentee ballots, due to that section’s direction that “[n]oth-ing other than the materials necessary to vote absentee shall be mailed or delivered with any absentee ballot.” The trial court found that to interpret the election statutes as permitting the proposed intrusion into the polling place, no matter how well-intentioned, was an extrapolation beyond the Legislature’s words and called into question the logical boundaries of efforts to “inform” voters.

The trial court, however, recognized that “the proposed notice is truthful, and does not misstate anything about the Congressional District 16 race.” The trial court even acknowledged that “confusion [was] likely to result where voters know that the person reflected on the ballot is no longer seeking the position,” and that the proposed “notices might clarify” that a vote cast for the withdrawn candidate will be counted as a vote for the substituted candidate.

Whether the election laws permit the posting of the challenged notices is a question of law; therefore, review on appeal is subject to the de novo standard of review. See State v. Otte, 887 So.2d 1186, 1188 (Fla.2004); State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001) (stating that “[i]f the ruling consists of a pure question of law, the ruling is subject to de novo review”). “The conduct of elections, including the specifications of ballots, is controlled by statute.” Nikolits v. Nicosia, 682 So.2d 663, 664 (Fla. 4th DCA 1996).

We apply these concepts to two questions. First, does the Secretary of State or supervisors of elections have authority to provide notice concerning the effect of casting a ballot for Foley? Second, if said authority exists, is there anything in the statutes which precludes the giving of the notices proposed by the Secretary of State or the supervisors of elections?

The statutory • framework of Florida’s Election Code attempts to balance at least two fundamental rights: the right of an elector to cast an informed vote, and the right of the people to have a fair and impartial election process.

Recognizing the unique nature of the election process, Florida courts have traditionally shown deference to the judgment of election officials:

The election process is subject to legislative prescription and constitutional command and is committed to the executive branch of government through duly designated officials all charged with specific duties.... [The] judgments [of those officials] are entitled to be regarded by the courts as presumptively correct and if rational and not clearly outside legal requirements should be upheld rather than substituted by the impression a particular judge or panel of judges might deem more appropriate.

Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840, 845 (Fla.1993) (quoting Boardman v. Esteva, 323 So.2d 259 (Fla.1975), cert. denied, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976)) (according latitude to the judgment of election officials in the “process of validating signature petitions”) (ellipsis and alterations in original); accord Floridians Against Expanded Gambling v. Floridians for a Level Playing Field, 31 Fla. L. Weekly D2078 n. 3, 2006 WL 2251785 (Fla. 1st DCA Aug.8, 2006) (“Krivanek stands for the proposition that election officials are accorded deference in interpreting election laws and performing their duties.”).

The pertinent statutes relating to the responsibilities of election officials to provide voter information are sections 97.012, 101.031(1), 101.031(2), and 101.5611(1), Florida Statutes, which state:

97.012 Secretary of State as chief election officer.
The Secretary of State is the chief election officer of this state, and it is his or her responsibility to:
(4) Provide technical assistance to the supervisors of elections on voter education and election personnel training services.
(6) Provide voter education assistance to the public.
101.031 Instructions for electors.—
(1) The Department of State, or in case of municipal elections the governing body of the municipality, shall print, in large type on cards, instructions for the electors to use in voting. It shall provide not less than two cards for each voting precinct for each election and furnish such cards to each supervisor upon requisition. Each supervisor of elections shall send a sufficient number of these cards to the precincts prior to an election. The election inspectors shall display the cards in the polling places as information for electors. The cards shall contain information about how to vote and such other information as the Department of State may deem necessary. The cards must also include the list of rights and responsibilities afforded to Florida voters, as described in subsection (2).
(2) The supervisor of elections in each county shall have posted at each polling place in the county the Voter’s Bill of Rights and Responsibilities in the following form:
VOTER’S BILL OF RIGHTS
7. Written instructions to use when voting, and, upon request, oral instructions in voting from elections officers.
VOTER RESPONSIBILITIES
9. Ask questions, if needed.
101.5611 Instructions to electors.—
(1) The supervisor of elections shall provide instruction at each polling place regarding the manner of voting with the system. In instructing voters, no precinct official may favor any political party, candidate, or issue. Such instruction shall show the arrangement of candidates and questions to be voted on. Additionally, the supervisor of elections shall provide instruction on the proper method of casting a ballot for the specific voting system utilized in that jurisdiction. Such instruction shall be provided at a place which voters must pass to reach the official voting booth.

(Emphasis added).

In interpreting the Florida Election Code, it is necessary to read the entire election code in pari materia. Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273, 1287-88 (Fla.2000). Reading all of the cited statutory sections evidences a legislative intent that there be an informed electorate that will know how to cast an effective vote.

The Florida Supreme Court has directed that election laws must be construed consistently with the important constitutional right of voters to cast their votes effectively. Krivanek, 625 So.2d 840, 844 (Fla.1993) (“[Ejection laws should generally be liberally construed in favor of an elector.”); State ex rel. Carpenter v. Barber, 144 Fla. 159, 198 So. 49 (1940) (“It is the intention of the law to obtain an honest expression of the will or desire of the voter.”). The right of voters to east their votes effectively has long been “rank[ed] among our most precious freedoms.” Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). As the U.S. Supreme Court explained:

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.

Id. at 31, 89 S.Ct. 5.

The circumstances in the instant case are a classic example of when voter information will be essential to ensuring an effective vote.

Foley’s name will appear on the ballot but will be a placeholder for Neg-ron’s, creating a complexity in voting that must be made known to voters to enable them to cast an informed and intelligent ballot. Without some explanation, a ballot that omits the name of the legal candidate leads to doubt and uncertainty about the true will of the people. In light of the ample powers vested in election officials to educate, inform, and instruct voters, it is unreasonable to assume that Florida law mandates that voters be kept in the dark about these circumstances while the identity of the actual, lawful candidate is concealed from view. Confused voters should not be required to guess as to how their vote will be counted, or be forced to question poll workers and rely on the potentially inconsistent, incomplete, or partial information provided by the poll workers. Under these circumstances, the posting of a clear, concise notice informing voters that a vote for the withdrawn candidate, whose name appears on the ballot, will be counted for the legal candidate, whose name is not on the ballot, is essential to the voters’ casting an effective vote.

We also find nothing in the statutes that 'would preclude the giving of notice as long as the notice complies with the impartiality requirements of sections 101.031(4) and 102.031(4)(a), Florida Statutes.

The trial court held that the following language of section 100.111(4)(a), Florida Statutes, prohibits the proposed notice:

[T]he ballots shall not be changed and the former party nominee’s name will appear on the ballot.

The court reasoned that:

This provision ... refutes the Defendants’ argument that Section 100.111(4) is “silent” on the issue of what should be done. Although Section 100.111(4) does not specifically preclude the posting of notices, it does specifically require that the person no longer seeking the office appear on the ballot. The Legislature has therefore acknowledged the issue of whose name should appear when another candidate has been nominated, but, for whatever reason, decided to require that the former candidate’s name appear on the ballot.

The trial court confused two distinct concepts: the form of the ballot and the provision of information to the electorate. The quoted language refers only to “ballots”— a term defined in section 97.021, Florida Statutes — not notices. Appellants do not contend that the ballot should be amended in any manner. The only question is whether election officials may post a notice — distinct from the ballot — informing voters that a vote cast for the withdrawn candidate will be counted for the substituted candidate. The quoted language simply does not address this issue.

We are unwilling to reject the election official’s interpretation of the statutory scheme where that reasonable interpretation allows voters to cast informed votes solely because section 100.11(4), Florida Statutes, fails to expressly discuss the issuance of notices.

The trial court, however, correctly expressed concern about the creation of a “slippery slope” when allowing intrusion into the polling place in an effort to inform voters. We share the trial court’s concern and its unspoken fear of bias or partisanship entering into the polling place. It is, thus, important for the courts to balance the desire for an informed electorate with strict enforcement of impartiality mandated by the Legislature in sections 101.031(4) and 102.031(4)(a), Florida Statutes. These subsections read:

101.031 Instructions for electors.—
(4) In case any elector, after entering the voting booth, shall ask for further instructions concerning the manner of voting, two election officers who are not both members of the same political party, if present, or, if not, two election officers who are members of the same political party, shall give such instructions to such elector, but no officer or person assisting an elector shall in any manner request, suggest, or seek to persuade or induce any elector to vote for or against any particular ticket, candidate, amendment, question, or proposition. After giving the elector instructions and before the elector has voted, the officers or persons assisting the elector shall retire, and such elector shall vote in secret.
102.031 Maintenance of good order at polls; authorities; persons allowed in polling rooms and early voting areas; unlawful solicitation of voters.—
(4)(a) No person, political committee, committee of continuous existence, or other group or organization may solicit voters inside the polling place or within 100 feet of the entrance to any polling place, or polling room where the polling place is also a polling room, or early voting site. Before the opening of the polling place or early voting site, the clerk or supervisor shall designate the no-solicitation zone and mark the boundaries.

In enforcing these provisions, we go farther than the trial court. The trial court indicated no bias or impartiality in the notices of either the Secretary of State or the supervisors’ attorney. We disagree as to the notice recommended by the Secretary.

We agree that the notice from the Secretary, on its face, shows no partiality toward any candidate or party, nor does it contain words of favoritism, advocacy, or persuasion. Nor do we find any evidence on the record of malicious or wrongful intent on the part of the Secretary of State. We do find, however, that as a result of its structure, the notice proposed by the Secretary may suggest favoritism on behalf of the Republican candidate. The only candidates addressed within the Secretary’s notice are Foley and Negron, the former and current Republican candidates. As such, these are the last names a voter will see prior to going into the voting booth. The mention of the Republican candidate to the exclusion of the Democrat or the independent candidates may be considered to be an implied endorsement. We, therefore, determine that the form of notice provided by the Secretary is viola-tive of the neutrality mandated by the statutes. We, therefore, uphold the trial court’s injunction as to this notice.

We find, however, that the notice proposed by the supervisors’ attorney contains neutral, evenhanded, plain and concise factual information. This notice merely informs the voters of who would be actually receiving their vote when they cast their ballot for any candidate in this Congressional race. The use of such concise and neutral written information may, in fact, avoid having poll workers respond in an unscripted manner and either intentionally or unintentionally providing biased information.

We are mindful of the affidavit of the supervisor of elections in Martin County, which stated:

Based upon my experience as Supervisor of Elections, my concern with respect to voter confusion dealing with the foregoing substitution of a candidate, and my desire to ensure that poll workers do not have to explain or unnecessarily discuss this substitution, I agreed with other Supervisors of Elections in Congressional District 16 to an informational Notice, which will be posted at each polling place in Martin County ... I believe this will ensure proper instructions to the voters at the polling place, avoid voter confusion, and minimize the responsibilities and problems that may occur for poll workers concerning this race and questions related thereto.

We determine, therefore, that the notice proposed by the supervisors’ attorney is authorized by Florida law, and reverse the trial court’s injunction as to that particular notice.

Affirmed in part, and Reversed in part.

This court’s mandate shall issue forthwith.

KAHN and LEWIS, JJ., concur.

      . All statutory references are to the 2006 edition of Florida Statutes unless herein noted.

      . Although seven of the eight supervisors felt that section 101.62(6) prevented them from including the proposed notices with the absentee ballots, the Secretary disagreed with that interpretation:

      . The fact that Kentucky has a statute (section 118.227(3), Kentucky Revised Statutes Annotated (2006)) which specifically requires notice in this particular situation, unlike the Florida Statutes, does not negate Florida's preference for an informed electorate. See Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 228, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) ("Certainly the State has a legitimate interest in fostering an informed electorate."); Anderson v. Celebrezze, 460 U.S. 780, 796, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) ("There can be no question about the legitimacy of the State's interest in fostering informed and educated expressions of the popular will in a general election.”). The State has an interest in regulating the election process and avoiding voter confusion. That these, and the other interests asserted, are compelling has been well-established under decided cases. See, e.g., Lubin v. Punish, 415 U.S. 709, 715, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Am. Party of Texas v. White, 415 U.S. 767, 782 n. 14, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).

      . Appellee also relies on the repeal of former section 101.253(3), Florida Statutes, repealed Chapter 2005-277, section 77, Laws of Florida, as evidence of the Legislature’s intent that notice not be provided. The legislative history surrounding the repealed section, as cited by the Secretary of State, convinces us that this section was repealed because of the difficulties in substituting candidates on touch screen voting machines and does not reflect legislative intent in the case before us. Fla. Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 765 (Fla.2005); Fla. H.R. State Admin. Council, HB 1567 CS (2005) Staff Analysis 6 (Apr. 21, 2005).

      . Appellees argue that providing some voters the information at issue and not providing it to others (because early voting has already commenced) would violate the equal protection clause of the United States Constitution; however, the cases cited by appellees are limited to their facts. We decline to extend these holdings. See Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000); Wexler v. Anderson, 452 F.3d 1226 (11th Cir.2006); Jacksonville Coal. for Voter Prot. v. Hood, 351 F.Supp.2d 1326 (M.D.Fla.2004). None of these cases pertain to providing information to voters. We find that providing unbiased factual information to voters in no way implicates equal protection.