author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-
    NO. 2005-1.
    No. SC05-803.
    Supreme Court of Florida.
    March 29, 2007.
    FL, Les Garringer, Staff Liaison, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.
    Bart Schneider, Lake Mary, FL and the Honorable David A. Giant, Eighth Judicial Circuit, Gainesville, FL, Responding with comments.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) filed a report on May 6, 2005, proposing amendments to Standard Jury Instructions in Criminal Cases 8.6 — Stalking; 8.7(a) — Aggravated Stalking; 8.7(b)— Aggravated Stalking — Injunction Entered; 8.8 — Aggravated Stalking — Victim Under 16 Years of Age; 10.15 — Felons Possessing Weapons; 13.2 — Possession of Burglary Tools; and 14.1 — Theft. The Committee also proposed new instructions 11.14— Dangerous Sexual Felony Offender, and 13.21 — Impairing or Impeding Telephone or Power to a Dwelling to Facilitate or Further a Burglary.

The Court published the proposals for comment in the July 1, 2005, edition of The Florida Bar News. Two comments were received. Following submission by the Committee of an amended proposal to instruction 8.7(a), the Court published that proposal for comment in the October 15, 2005, edition of The Florida Bar News. One comment was received. On October 30, 2006, the Committee filed an amended report revising its proposals with regard to instructions 8.7(b), 10.15, and 13.21, and withdrawing its proposal with regard to instruction 14.1. We have jurisdiction. See art. V, § 2(a), Fla. Const.

We decline to authorize instruction 11.14 — Dangerous Sexual Felony Offender, for publication and use pending further study and a report by the Committee. Instruction 11.14 would create a new jury instruction for the classification of “Dangerous Sexual Felony Offender.” The proposal derives from the rewording of section 794.0115, Florida Statutes, in chapter 2003-115, Laws of Florida, to include a mandatory minimum sentence of twenty-five years of imprisonment for those classified as dangerous sexual felony offenders under the “Dangerous Sexual Offender Act.” Under the statutory scheme, a defendant may be adjudicated a dangerous sexual felony offender if he or she is convicted of committing certain enumerated offenses, see § 794.0115(2), Fla. Stat. (2006), as well as having done so under five alternative circumstances. We are concerned with the proposal in respect to the alternative circumstance under section 794.0115(2)(e), that the defendant “[h]as previously been convicted of a violation of [various statutes].” Unlike section 794.0115(4), Florida Statutes, the proposed instruction does not include qualifying language for “previously been convicted.” Section 794.0115(4) provides that “[t]he offense described in subsection (2) which is being charged must have been committed after the date of commission of the last prior conviction for an offense that is a prior conviction described in paragraph (2)(e).” Therefore, we refer this proposed instruction back to the Committee to address this issue.

Having considered the Committee’s amended report and the comments filed, we hereby authorize the publication and use of the other proposed instructions, as set forth in the appendix to this opinion, with a minor modification. In doing so, we express no opinion on the correctness of those instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

8.6 STALKING

§ 784.048(2), Fla. Stat.

To prove the crime of Stalking, the State must prove the following element beyond a reasonable doubt:

(Defendant) willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim).

Definitions.

“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose._

Comment

This instruction was approved in 1995 [657 So.2d 1152] and amended in 2007 to include cyberstalking.

8.7(a) AGGRAVATED STALKING

§ 784.048(3), Fla. Stat.

To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim).
2. (Defendant) made a credible threat with the intent to place (victim) in reasonable fear of death or bodily injury to [himself] [herself] [(name of the subject of threat)].

Give if applicable.

(Name of subject of threat) was (victim)'s [child] [sibling] [spouse] [parent] [dependent].

Definitions^

“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

“Credible threat” means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

Lesser Included Offenses

Comment

This instruction was approved in 1995 [657 So.2d 1152] and amended in 2007 to incorporate cyberstalking.

8.7(b) AGGRAVATED STALKING

(Injunction Entered)

§ 784.048(4), Fla. Stat.

To prove the crime of Aggravated Stalking, the State must prove the following two three elements beyond a reasonable doubt:

1. (Defendant)_knowingly, willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyber-stalked] (victim).

Give 2a, 2b, or 2c as applicable

2. — (Defendant)-did-so in -violation of
a. — an—injunction—for—protection against repeat violence,
b, — an—injunction—for—protection against domestic-violence,
c. — any [other] court imposed prohibition of conduct toward (the vie-

Give 2a or 2b as applicable.

2. At the time of the [following] [harassing] [cyberstalking],
a. an injunction for protection against [repeat] [sexual] [dating] [domestic] violence had been entered against (defendant) for- the benefit of (victim).
b. a court had imposed a prohibition of conduct on (defendant) toward (victim) or (victim’s property).
3. (Defendant) knew that the [injunction] [court-imposed prohibition of conduct] had been entered against [him] [her].

Definitions.

“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

“Credible — threat”—means—a—threat made with the intent to cause the person who is -the target of — the -threat to reasonably fear for-his-or her safety. The threat must be against-the-life-of, or a threat to cause-bodily injury to, a person.

Lesser Included Offenses

Comment

This instruction was adopted in 1995 [657 So.2d 1152] and amended in 2007.

8.8 AGGRAVATED STALKING

(Victim under 16 years of age)

§ 784.048(5), Fla. Stat.

To prove the crime of aggravated stalking, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) willfully, maliciously, and repeatedly [followed] or [harassed] [or] [cyberstalked] (victim); and,
2. At the time of (defendant’s) actions, (victim) was under 16 years of age.

Definitions^

“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

Lesser Included Offenses

Comment

This instruction is based on the text of section§-784.048(5), Florida Statutes §tat.-(1997), and generally patterned after the standard instructions on stalking and aggravated stalking.

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2007 to incorporate cyberstalking.

10.15 FELONS POSSESSING WEAPONS FELONS CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE

§ 790.23, Fla. Stat.

To prove the crime of (crime charged), the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) had been convicted of [(prior offense)] a felony.

Give 2a or 2b as applicable.

2. After the conviction, (defendant) knowingly

Give-2a or-2b as applicable.

a. [owned] [had in [his] [her] care, custody, possession, or control] [a firearm] [an electric weapon or device] [ammunition].
b. [carried a (weapon — alleged)? which was concealed-from the ordinary sight of another — person] concealed weapon.]

■Defense

If you find that the defendant’s civil rights had been restored at the time-of the offense, you shall find- the -defendant -non guilty.

Definitions.

“Convicted” means that a judgment has been entered in a criminal proceeding by a competent court pronouncing the accused guilty.

A [“firearm”][“electric weapon or device”][“concealed weapon”] is legally defined as (adapb-from § 790.001, Fla, Stak? as required by the allegations).

Give as appropriate.

[A “firearm”] [“Ammunition”] [An “electric weapon or device”] [A “concealed weapon”] is legally defined as (insert the definition in § 790.001, Fla. Stat.).

Give if appropriate.

A “deadly weapon” is legally defined as one likely to produce death or great bodily injury.

Give if 2a alleged.

“Care” and “custody” mean immediate charge and control exercised by a person over the named object. The terms care, custody, and control may be used interchangeably.

Possession.

To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing-possessed an object.

Possession may be actual or constructive. If a thing- is in-the hand of or on the-person, or in a-bag or-container in the-hand of or on-fee person, or is so close as to be within ready-reach and is under-the control of the person, it-is in the-actual possession of that-person,

Actual possession means

a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the control of the person.

Give if applicable.

Mere proximity to an object is not sufficient to establish control over the object when the object is not in a place over which the person has control.

If a thing is in -a-place-ever- which the person has control or in which the person has hidden or concealed-it, it-is in the constructive possession of that per-

Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.

If an object is in a place over which (defendant) does not have control, the State establishes constructive possession if it proves that (defendant) (1) has knowledge that the object was within (defendant’s) presence, and (2) has control over the object.

Possession may be joint, that is, two or more persons may jointly have possession of possess an object article, exercising control over it. In that case, each of those persons is considered to be in possession of that object article.

If a person has exclusive possession of an object a-thing, knowledge of its presence may be inferred or assumed.

If a person does not have exclusive possession of an object a thing, knowledge of its presence may not be inferred or assumed.

Lesser Included Offenses

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So .2d 1205] and 1992 [608 So.2d 1175] and 2007.

13.2 POSSESSION OF BURGLARY TOOLS

§ 810.06, Fla. Stat.

To prove the crime of Possession of Burglary Tools, the State must prove the following three four elements beyond a reasonable doubt:

L (Defendant) intended to commit a burglary or trespass.
1* 2. (Defendant) had in [his] [her] possession a [tool] [machine] [implement]* that [he] [she] intended to use, or allow to be used, in the commission of the burglary or trespass.
2* (Defendant) intended to use the tool in the commission of a burglary or trespass,
3, (Defendant) intended to commit-a burglary or-trespass.
4* 3. (Defendant) did some overt act toward the commission of a burglary or trespass.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and 1995 [665 So.2d 212], and 2007.

13.21 IMPAIRING OR IMPEDING TELEPHONE OR POWER TO A DWELLING TO FACILITATE OR FURTHER A BURGLARY

§ 810.061, Fla. Stat.

To prove the crime of Impairing or Impeding Telephone or Power to a Dwelling to Facilitate or Further a Burglary, the State must prove the following two elements beyond a reasonable doubt:

Give as applicable.

L (Defendant)
a. damaged a [wire] [line] that transmitted [telephone service] [power] to a dwelling.
b. impaired equipment necessary for [telephone] [power] transmission to a dwelling.
c. [impaired] [impeded] [telephone] [power] transmission to a dwelling.
2. (Defendant) did so for the purpose of facilitating or furthering the [commission] [attempted commission] of a burglary of that dwelling.

.To define a burglary, see the elements of burglary in'instruction 13.1.

Definitions.

§ 810.011(2), Fla. Stat

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it.

§ 810.011(3), Fla. Stat. Give if applicable.

“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car; and “to enter a conveyance” includes taking apart any portion of the conveyance.

“Impaired” means to be diminished, damaged, or weakened.

“Impeded” means to slow something down or prevent an activity from making progress at its previous rate.

“Facilitate” means to help or assist, or to make something possible or easier.

An “attempt” to commit a crime is the formation of an intent to commit that crime and the doing of some act toward the commission of the crime other than mere preparation to commit the crime.

Comment

This instruction was adopted in 2007.

      . With regard to the proposed version of instruction 8.6 — Stalking, the Court corrected the statutory citation for "stalking” in the chart for the lesser included offenses.


source: Caselaw Access Project

author: PER CURIAM. ANSTEAD, J.,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Steven Ray BROWNSTEIN, Respondent.
    No. SC04-2460.
    Supreme Court of Florida.
    March 29, 2007.

      John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Carlos Alberto Leon, Bar Counsel, The Florida Bar, Miami, FL, for Complainant.

      Richard Baron of Baron and Associates, Miami, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Steven Ray Brownstein be found guilty of professional misconduct and suspended from the practice of law for three years. We have jurisdiction. See art. V, § 15, Fla. Const.

Brownstein pled guilty to all rule violations and stipulated to the following facts:

1. Respondent is and was at all times material herein a member of The Florida Bar, albeit suspended by an order of emergency suspension dated November 8, 2004, and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. On or about August 26, 2004, a subpoena duces tecum was duly executed and served upon Steven Ray Brown-stein, Esquire, commanding him to appear before [The Florida Bar’s] staff auditor on September 14, 2004, at 10:00 a.m. at the offices of The Florida Bar and produce at that time original bank statements, canceled checks, check stubs, deposit slips, wire transfers, cashier’s checks issued with supporting documentation, receipt and disbursement journals, client ledger cards, HUD-1 statements for all real estate transactions, closing statements from any personal injury case, bank and client reconciliations from the account identified as Steven R. Brownstein, maintained at Union Planters account # 1400022665 (Operating), and any other trust account in which he has signatory capacity and any other account in which the funds pertaining to Mobilestop were placed, for the period of January 1, 2003, to the present. In addition, a subpoena was also issued to the banking institution.
3. The request for an audit was predicated upon the complaint of James P.E. Roen, Esquire, a partner with Respondent in the firm of Levey, Airan, Brownstein, Shevin, Friedman, Roen & Kelso, LLP. Mr. Roen stated that Respondent failed to disburse client’s funds that were entrusted to him, specifically $20,000.00 from a settlement of $80,000.00 received by Respondent in October 2003, regarding a corporation identified as Strax.
4. In January 2004, Respondent issued from the bank account identified as Steven R. Brownstein, maintained at Union Planters Bank account # 1400022665 (Operating), two checks in the amount of $10,000.00 each payable to Alan Goldberg Trustee and identified the disbursements as “Strax Settlement.” Those two checks were dishonored by the bank due to non-sufficient funds.
5. On or about April 2, 2004, Alan L. Goldberg (the Trustee), Chapter 7 Trustee for the estates of Mobilestop Com, Inc., filed a “Motion of Alan L. Goldberg, Chapter 7 Trustee (I) To Compel Compliance With Settlement and Compromise or, in the Alternative, For Entry of Judgment Against Defendants for the Settlement Balance and (II) For Order to Show Cause as to Why Attorney Steven R. Brownstein Delivered Two Worthless Checks to the Trustee.”
6. On September 14, 2004, Respondent failed to appear or produce to The Florida Bar any of the records identified in the Bar’s subpoena.
7. On or about October 14, 2004, Union Planters Bank delivered the bank statements, canceled checks and items deposited from account # 1400022665 (Operating), for the period of January 1, 2003, to April 30, 2004, and the account identified as Steven R. Brownstein, Trust Account # 1700020544 (Trust), for the period of January 1, 2003, to July 31, 2004.
8.On October 15, 2003, the beginning balance in Respondent’s trust account # 1700020544 (Trust), was $50.30. On the same day, Respondent deposited a check from Great American Insurance Companies in the amount of $40,000.00, payable to Steven R. Brownstein Trust, regarding the insured Strax Holdings, Inc.
9.These funds were used by Respondent in the following manner:

10. On November 30, 2003, the balance in Respondent’s trust account was $238.70. On December 15, 2003, Respondent issued another check in the amount of $238.00 to himself, leaving a balance in the trust account of $0.30. This was the last transaction recorded in this trust account.
11. Respondent was pressured by the Bankruptcy Trustee to repay $20,000.00 received on October 15, 2003, from the Strax settlement. On or about January 23, 2004, Respondent issued from account # 1400022665 (Operating), his check # 8546 in the amount of $10,000.00 payable to Alan Goldberg, Trustee and identified the disbursement as pertaining to “Strax.” On January 23, 2004, the balance in Respondent’s account # 1400022665 (Operating) was an overdraft in the amount of $8,524.89.
12. On February 9, 2004, check # 8546 in the amount of $10,000.00 was presented to the bank for payment and was dishonored due to insufficient funds. The balance in the account on February 9, 2004, was $184.82.
13. On or about January 30, 2004, Respondent issued from account # 1400022665 (Operating), his check # 8547 in the amount of $10,000.00 payable to Alan Goldberg, Trustee and identified the disbursement as pertaining to “Strax.” On January 30, 2004, the balance in Respondent’s account #1400022665 (Operating) was $220.11.
14. On February 9, 2004, check # 8547 was presented to the bank for payment and was dishonored due to insufficient funds. The balance in the account on February 9, 2004, was $184.82.
15. From March 10, 2003, to April 27, 2004, Respondent’s bank account # 1400022665 (Operating) had checks presented thirty (30) times to the bank and dishonored due to insufficient funds.
16. The following transactions between Respondent’s two accounts revealed [the law firm of Levey Airan Brownstein, et al. is referred to as “L.A.B.”]:

17. Every check issued or deposited from/or to Levey Airan Brownstein, et. al., was signed by Respondent. In February, 2004, Union Planters Bank dishonored checks issued by Respondent if the account did not have sufficient funds to cover it.
18. Based upon the foregoing, Respondent has violated Rule 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), of the Rules of Professional Conduct; and Rule 5-l.l(a) (Nature of Money or Property Entrusted to Attorney), Rule 5-l.l(b) (Application of Trust Funds or Property to Specific Purpose), Rule 5-l.l(e) (Notice of Receipt of Trust Funds; Delivery; Accounting), Rule 5 — 1.2(b) (Minimum Trust Accounting Records), Rule 5-1.2(c) (Minimum Trust Accounting Procedures), and Rule 5-1.2(d) (Record Retention) of the Rules Regulating Trust Accounts.

At the final hearing, the parties presented evidence pertaining to aggravating and mitigating circumstances. At this hearing, counsel for the Bar called Carlos Ruga, its staff auditor. Ruga explained how Brown-stein used the two checking accounts involved: his operating funds account and his trust fund. As to Brownstein’s operating funds account, from January 2003 until June 2003, Brownstein bounced checks on thirty occasions. Ruga also testified that Brownstein commingled the funds from his operating account with his trust funds account. He would then deposit money from his operating account into his trust fund account. While Ruga asserted that Brownstein used the Strax trust fund money for his personal use, Ruga was unable to perform a complete audit as to the trust account because Brownstein did not produce all of the records, including the client ledger cards and journals.

As his first witness, Brownstein called Dr. John Eustace, who had an extensive history performing mental health evaluations. Dr. Eustace first saw Brownstein in late December 2004, after the Bar grievance proceedings began. In his opinion, Brownstein had a “seriously advanced major depressive disorder.” Brownstein met seven out of nine criteria for major depressive disorder and eighteen out of the twenty-one criteria on the Beck’s Depression Scale. He farther asserted that this disorder was recurrent, affecting three different periods of Brownstein’s life. The prior episodes did not last as long, however, and were less serious. Based on his diagnosis, Dr. Eustace recommended that Brown-stein become involved in a comprehensive program of mental health treatment, including medication, individual treatment, and family treatment. Dr. Eustace last saw Brownstein shortly before testifying and stated it was his opinion that there was marked improvement, including his observations that Brownstein was no longer exhibiting suicidal ideations, had more energy, was beginning to interact with family and Mends, and was willing to face the consequences of his bad acts. Dr. Eustace’s opinion was that the misconduct was a symptom of the disorder — that “but for” the depression, he would not hav.e committed the acts.

Brownstein then called Myer Cohen, the Executive Director of Florida Lawyers Assistance (FLA), who discussed how FLA supervises the attorneys who have signed contracts with them. As his third witness, Brownstein called Tod Aronovitz, one of his long-time friends. Aronovitz testified that he noticed that there was a period of several years where Brownstein was not as happy as usual — that he was more serious or melancholy than usual. In December 2004, Brownstein talked to Aronovitz about the problems he was having. Aronovitz never would have guessed Brownstein could have a problem with the Bar because Brownstein had a very high reputation in the legal community and was regarded as an honest person. Although Aronovitz was not familiar with all of the charges against Brownstein, he asserted that any misconduct was an anomaly — Brownstein devoted his entire life to doing things right.

Next, Brownstein called Ester Sardina, his executive assistant and former secretary. When she first started working for him, Brownstein was upbeat and generous, a good boss and person. However, around May 2000, he changed. He started asking her to hold his calls and would shut the door and lie on his couch. He would show up for work later and later. Although this behavior appeared rarely at first, it progressed and became more frequent. Clients would complain to her that he was not returning their calls. When she walked into the office, he was frequently asleep on his couch with his light off. In fact, the behavior was so obvious that the other secretaries kidded her about what an easy job she had since her boss just slept. Brownstein paid her salary himself, and a few times the checks bounced. Sardina also learned that Brownstein failed to pay to the government the withholding taxes from her salary. Brownstein also did not pay the payroll taxes which were owed for Sardina’s social security benefits. Through the date of the hearing, these payments still were not made.

Brownstein was the final witness. He first detailed his thirty-one years as an attorney. Although there were times in his life when he was not “functioning on all cylinders,” Brownstein did not admit his condition or seek medical treatment until after the Bar began its investigation in 2004. The last episode of the depression lasted for a significant period and got progressively worse until it was a struggle to come to his office at all. He tried to work but could not function, ■ so he would lie down and sleep for hours. Rather than confront the problem, he withdrew further.

Brownstein discussed the misconduct relating to the Strax matter first. While he was generally in a depressed mood during this time, there were times when he was “up” for a few days, until his mood took another down-turn. Brownstein explained how during one of his great lucid moments, he convinced the client that his firm had the ability to defend the Strax case. The client chose Brownstein as its attorney, and Brownstein helped settle the matter for $80,000, which' was significantly less than the high six-figure amount initially sought by the trustees. Brownstein was also able to get the insurance company to assume half of the coverage. The client paid $40,000, which went into the firm trust account, and the insurance company paid the other $40,000, which went into the Brownstein trust account. Brownstein paid the trustee the $40,000 that was in the firm trust account and then paid the trustee $20,000 from the Brownstein trust account, leaving $20,000 due. Brownstein, however, used this money for personal uses. When the trustee asked about the remaining funds due, Brownstein lied, telling the trustee that the money had not come in yet but that he would pay it himself if there was any problem recovering it. After months passed, the trustee filed a motion to compel settlement. Brownstein borrowed the missing money from a long-time friend and then gave a cashier’s check to the trustee, who withdrew the motion to compel settlement.

When he was asked whether he had ever used trust account money before, Brown-stein testified that he remembered taking a client’s funds once in the 1990s and then putting the money back into the trust account. From the period of 2000 through 2004, he did use trust account funds for his own use, although he could not recall on how many occasions this occurred. When he did take out any money, Brownstein stated that he put it back again, and no client ever complained or lost money.

When asked why he did this, he told the court that he had no excuse but that he was not mentally healthy during the time. He then explained how different he was from his normal self and how his depression affected all aspects of his life. When asked whether his motive in taking the money was selfish or dishonest, Brown-stein replied, “I don’t think so. I don’t believe so. Dishonest, I guess, is a relative term. By taking it, I knew that it was improper. So I can’t say — .” He denied that he was trying to deprive his client of any money, asserting that he could have easily borrowed the money from a number of people to pay back the money.

Brownstein also addressed the charges of check kiting, explaining that even though he had two different accounts, one personal and one for the firm, the firm’s account was basically all his because the other partner had a different account. He explained that he would write a check, thinking that he had money coming in. When the money did not come in sufficiently to cover the checks he had already written, the bank called him, asking for him to cover it, so he would write a check from his other account. Brownstein admitted that he knew he did not have the money in the account at that time. During the five-week period in question, he used this as a mechanism when he was short of funds to solve the problem until he got the money. The bank charged him fees for the bounced checks, and since the money eventually came in, he asserted that the bank “was not out” any money. The bank never closed his accounts because of this problem.

Brownstein also admitted to other misconduct that was not charged. Brownstein had not filed income tax returns for the years 2000, 2003, and 2004. He also failed to pay his secretary’s IRS taxes. At the time of the hearing, Brownstein asserted that he was attempting to rectify the IRS problem by hiring a certified public accountant to prepare the necessary documents to resolve the problems regarding his delinquent taxes and his secretary’s withholding taxes. Brownstein also admitted that he failed to give the Bar all of the records they needed and asserted that he did not have any client ledger cards and journal. While. Brownstein recognized that he knew he should have a client ledger, he testified that he did not have a high volume of clients with trust fund money— only about thirty clients over four years— so it was simpler not to have one. Brown-stein explained that the reason why he failed to turn over all of his records when they were first subpoenaed was because at that time, Brownstein was avoiding anything that could be a conflict, including requesting money from his friends. He did not want to take any affirmative action, even though he knew that by not acting, the consequences would be far worse. Brownstein further asserted that he believed this was the same reason why he failed to file his tax returns — he was not emotionally ready to sit down and think about those matters.

At the time the misconduct began, Brownstein was grossing up to $20,000 to $25,000 a month. In fact, a couple of years before, Brownstein made up to approximately $600,000 a year on several occasions. This income subsequently dropped to $150,000. Brownstein explained that even though he was in a deep depression, he was still able to make a relatively high salary because he did a lot of nominal work for one client that did not take a lot of concentration. In addition, based on his good reputation in the community, he also had referrals on a regular basis. He later learned, however, that because he was not getting all this work done, his firm starting pulling work from him.

Brownstein asserted that at the time of the hearing, he was feeling much better, although he recognized that he was still not completely himself. He was now taking medication and saw a professional once a week. Brownstein expressed his remorse, telling the referee that he felt as bad as one could feel because he knew that he had let down his family, his good friends who referred cases to him, and the Bar as a whole. Brownstein did not believe that this type of misconduct would occur in the future because he was better able to recognize the problem and he would not avoid treatment. At the same time,- he also admitted that he needed more treatment before he could begin to practice law again.

The referee issued a written recommendation and report which found Brownstein guilty of the following rule violations: rule 4 — 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and rule 4 — 8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice) of the Rules of Professional Conduct; and rule 5-l.l(a) (Nature of Money or Property Entrusted to Attorney); rule 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose); rule 5-1.1(e) (Notice of Receipt of Trust Funds; Delivery; Accounting); rule 5 — 1.1(f) (Disputed Ownership of Trust Funds); rule 5-1.2(b) (Minimum Trust Accounting Records); rule 5-1 (Minimum Trust Accounting Procedures); and rule 5-1.2(d) (Record Retention) of the Rules Regulating Trust Accounts. The referee found two aggravating circumstances: a pattern of misconduct and multiple offenses. She found ten mitigating circumstances: an absence of a prior disciplinary record; an absence of a dishonest or selfish motive; timely good faith effort to rectify the consequences of the misconduct; full and free disclosure to the disciplinary board and a cooperative attitude towards the proceeding; an otherwise good reputation and character; mental impairment; interim rehabilitation; the imposition of other penalties and sanctions; remorse; and FLA supervision. The referee then recommended a three-year suspension, to be followed by five years of probation with numerous conditions.

The Bar challenges this recommendation, asserting that the referee erred as to certain findings in aggravation and erred in recommending a suspension. Particularly, the Bar challenges whether the referee erred in failing to find three aggravating factors: a dishonest or selfish motive; a bad-faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency; and substantial experience in the practice of law. We agree with the Bar.

First, the referee did not find that Brownstein had a dishonest or selfish motive and, to the contrary, found that Brownstein’s lack of dishonest motive was a mitigator. We disagree with the referee’s conclusion. In this case, the factual underpinnings of this claim were uncontested. Accordingly, this Court is faced with only one question: whether the unchallenged facts support the referee’s legal conclusion relative to a selfish motive. While this Court generally defers to a referee’s findings of fact, “where there are no genuine issues of material fact and the only disagreement is whether the undisputed facts constitute unethical conduct, the referee’s findings present a question of law that the Court reviews de novo.” Fla. Bar v. Pape, 918 So.2d 240, 243 (Fla.2005), cert, denied, — U.S.—, 126 S.Ct. 1632, 164 L.Ed.2d 335 (2006).

The underlying acts supporting this ag-gravator are that Brownstein used funds in a trust account for his own personal use and then lied about it. When he was confronted by the trustees about the missing trust funds, Brownstein lied and told the trustee 'that he had not yet received the money, knowing at the time that this statement was dishonest and that he had already used those funds. Brownstein also wrote checks between his two accounts, knowing that he did not have the money to cover the. checks. Brownstein defends his conduct by asserting that his depression affected his decision-making., While this may be a mitigating factor as-to the appropriate discipline, it does not change the fact that Brownstein knowingly acted in a dishonest manner by taking money entrusted to him and lying about his actions to the trustee. Accordingly, we find that the referee erred with regard to this ag-gravator.

The Bar also asserts that the referee erred in failing to find the aggravating circumstance relative to whether Brown-stein obstructed the disciplinary proceedings by intentionally failing, to comply with rules or orders of the disciplinary agency. We agree with the Bar. Again, the facts are undisputed: Brownstein completely failed to produce any records for the Bar during the entire proceeding. Brownstein asserts that he did not comply because when the records were first subpoenaed, he was at the height of his depression and was unable to comply. Accepting that he was clinically depressed when the subpoena was first issued, Brownstein’s depression did not extend through the entire period in question so as to excuse his noncompliance with the process. After the Bar began its investigation, Brownstein sought help and began recovering from his depressive episode. Despite his recovery, to this date, he has not produced the necessary records for the Bar and admits that he failed to keep necessary records, including the required client ledgers. As the Bar’s auditor testified during the evidentiary hearing, it was extremely difficult, if not impossible, to determine the extent of Brownstein’s misconduct based on the lack of records. When questioned about the misappropriation, Brownstein was unable to state how many times he misappropriated funds. Brownstein’s failure to maintain appropriate records does not excuse his complete disregard of a valid subpoena. We require members of the Florida Bar to comply with rule 6-1.2 (Trust Accounting Records and Procedures) of the Rules Regulating the Florida Bar, and we sanction noncompliance. See Fla. Bar v. Davis, 577 So.2d 1314 (Fla.1991) (imposing a ninety-day suspension for failing to maintain the minimum trust account records relating to a transaction where attorney was clearly handling funds that a client had entrusted to the attorney). Accordingly, we hold that the referee should have found that this aggravating circumstance applied.

Third, we find that the referee erred in failing to find the “substantial experience in the practice' of law” aggra-vator. In this case,- Brownstein had practiced law for thirty-one years. The referee, however, did not mention this aggravating circumstance at all. Accordingly, the referee should have applied the aggravating factor set forth in standard 9.22(i) (substantial experience in the practice of law) of the Florida Standards for Imposing Lawyer Sanctions.

The final issue we must address is whether the referee erred in her recommendation of a three-year suspension. As this Court has held:

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

Fla. Bar v. Heptner, 887 So.2d 1036, 1041-42 (Fla.2004). We have repeatedly recognized not only the seriousness of the offense in respect to the individual client but also the extreme detriment to the public’s confidence in the members of the Bar when a lawyer intentionally takes funds held in trust for the lawyer’s own use. Such misconduct necessarily must result in the severest of sanctions. Under both the Florida Standards for Imposing Lawyer Sanctions and under existing caselaw, disbarment is presumed to be the appropriate sanction. See Fla. Stds. Imposing Law. Sancs. 4.11; Fla. Bar v. McFall, 863 So.2d 303, 308 (Fla.2003); Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla.2000); Fla. Bar v. Tillman, 682 So.2d 542, 543 (Fla.1996). In limited instances, we have allowed this presumption to be rebutted but only by showing substantial mitigating circumstances which demonstrate that the presumed sanction of disbarment would be unfair and inappropriate in a particular case. See, e.g., McFall, 863 So.2d at 303; Fla. Bar v. Tauler, 775 So.2d 944 (Fla.2000). We do not find in this case that the referee’s recommending less than the presumed sanction of disbarment has a reasonable basis in existing caselaw and the Florida Standards for Imposing Lawyer Sanctions.

Brownstein asserts that under our case-law a lesser sanction is warranted in his case because of the severe depression which interfered with his ability to make ethical judgments and that this was completely out of character for him. Moreover, he contends that his misconduct did not harm any client, law firm, or financial institution. We do not agree. Based upon our review, we find that the cases which have approved a sanction less than disbarment for misappropriation of client trust funds were based either upon less culpability in the taking of the funds or substantially more mitigation.

Brownstein has been a successful lawyer who received very substantial financial benefits from the practice of law involving sophisticated legal services. Yet, during this time, he misappropriated his clients’ money and breached their trust. We recognize that Brownstein and Dr. Eustace testified that during this period of time, Brownstein suffered from clinical depression. We accept the referee’s finding that Brownstein’s depression was established as a mitigating factor. However, we find it significant that Brownstein did not seek medical or psychological care until after the Bar’s investigation began. Unlike the facts in McFall, when Brownstein took money from the trust account, he was not on medication that clouded his judgment. Further, after he saw Dr. Eustace and began to take medication, Brownstein still did not undertake to provide the Bar with the subpoenaed records, cooperate with the Bar in reconstructing records, or rectify his wrongful acts of failing to pay his secretary’s withholding taxes and payroll taxes or his own back taxes.

As we have repeatedly stated, disbarment is the presumed-sanction for the misappropriation of client funds, and the presumption will be overcome only in unique circumstances. This case involves five substantial aggravators: (1) a dishonest or selfish motive; (2) bad faith obstruction of the disciplinary proceedings; (3) substantial experience • in the practice of law; (4) multiple offenses; and (5) a pattern of misconduct. In contrast to this weighty aggravation, eight mitigators. circumstances are present: (1) an absence of a prior disciplinary record; (2) timely good-faith effort to rectify consequences of misconduct; (3) otherwise good reputation and character; (4) mental impairment; (5) interim rehabilitation; .(6) imposition of other penalties and sanctions; (7) remorse; and (8) FLA supervision. While we acknowledge the referee’s findings regarding the mental depression suffered by Brown-stein, we find that the mitigation is insufficient to overcome the presumption of disbarment based upon our caselaw. As we do not find Brownstein has overcome the presumption, we conclude that the appropriate discipline in this case is disbarment.

Based on the above, we approve the referee’s findings of fact and recommendations as to guilt. However, as noted above, we reject certain findings pertaining to the aggravating and mitigating cir-. cumstances, and further reject the recommended discipline. For the reasons addressed above, we find that the mitigation in this case does not outweigh the seriousness of the offenses and instead order disbarment. Accordingly, Brown-stein is hereby disbarred for a period of five years, effective nunc pro tunc, November 8, 2004, the effective date of the suspension in Florida Bar v. Brownstein, 888 So.2d 623 (Fla.2004) (table). Because Brownstein has been suspended since November 8, 2004, it is unnecessary to provide him with thirty days to close out his practice of law to protect the interests of existing clients.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Steven Ray Brownstein in the amount of $11,625.16, for which sum let execution issue.

It is so ordered.

WELLS, PARIENTE, QUINCE, and BELL, JJ., concur.

ANSTEAD, J., concurs in part and dissents in part with an opinion, in which CANTERO, J., concurs.

LEWIS, C.J., recused.

ANSTEAD, J.,

concurring in part and dissenting in part.

I disagree with the majority only with respect to its rejection of the discipline recommended by the referee. Primarily because of the mental health issues involved, I would approve the referee’s recommendation of a lengthy suspension followed by an extended term of probation.

CANTERO, J., concurs.

      . The Bar further asserts that the referee made additional errors in her findings of fact relating to the other aggravating circumstances. For example, the Bar alleged that the Court should consider as additional aggravation that Brownstein , failed to file his personal income tax return and failed to pay his secretary’s withholding taxes. These allegations, however; were not charged-in the case and are not considered by the Court. If there are later charges by the Bar relevant to this alleged misconduct, the Court will consider such acts at that time..

      . See Fla. Bar v. Mason, 826 So.2d 985 (Fla.2002) .(misappropriation due to accounting error).

      . See, e.g., Tauler, 775 So.2d at 947-48 (husband’s operations had caused loss of his medical practice, bankruptcy, and loss of family. home, resulting in a period of emotional distress); McFall, 863 So.2d at 308 (during period of misappropriation, attorney was in extreme pain due to neuropathy and prescribed medication clouded his judgment).


text:
    In re AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.170 AND 3.172.
    No. SC06-1739.
    Supreme Court of Florida.
    March 29, 2007.
    William C. Vose, Chair, The Florida Bar Criminal Procedure Rules Committee, Orlando, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
    Paula S. Saunders, Office of the Public Defender, Tallahassee, FL, and Michael Robert Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, FL, Co-Chairs, The Florida Association of Criminal Defense Lawyers Amicus Curiae Committee; Honorable Nancy Daniels, Public Defender, Second Judicial Circuit, Tallahassee, FL, Responding with comments.
   PER CURIAM.

The Court sua sponte amended Florida Rules of Criminal Procedure 3.170 and 3.172 on an emergency basis to ensure consistency between the rules and section 925.12, Florida Statutes (2006). See Amendments to Fla. Rules of Crim. Pro. 3.170 & 3.172, 938 So.2d 978 (Fla.2006). Because the amendments were not published for comment prior to adoption, the Court gave interested persons sixty days to file comments. Comments now have been filed. We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The history of the procedural rules governing DNA testing is set forth in the Court’s prior opinions in this area. Originally, subdivision (d) of Florida Rule of Criminal Procedure 3.853 set forth a deadline for filing certain motions for postcon-viction DNA testing, and that deadline, which was October 1, 2003, was later extended to October 1, 2005. Prior to expiration of the October 1, 2005, deadline, the Criminal Procedure Rules Committee (rules committee) filed in this Court an emergency report, which recommended eliminating the deadline altogether. In order to give the Court time to consider the report and to seek and consider comments, the Court on September 29, 2005, issued an order amending rule 3.853(d) on an interim basis, extending the deadline to July 1, 2006. Because the Legislature was considering the matter, the Court held the rules committee’s report in abeyance pending legislative action.

The Legislature ultimately enacted chapter 2006-292, Laws of Florida (the Act), which amended chapter 925, Florida Statutes (2006), in several respects, and the Court responded by amending the corresponding rules. First, the Act removed the deadline for filing postconviction DNA motions, and the Court responded by adopting the rules committee’s proposed amendment to rule 3.853(d). See Amendments to Fla. Rules of Crim. Pro. 3.853(d), 938 So.2d 977 (Fla.2006) (hereinafter Amendments I). And second, the Act provided that courts should inquire into the existence of DNA evidence before accepting a plea of guilty or nolo contendere to a felony, and the Court responded by sua sponte adopting emergency amendments to rules 3.170 and 3.172. See Amendments to Fla. Rules of Crim. Pro. 3.170 & 3.172, 938 So.2d 978 (Fla.2006) (hereinafter Amendments II). The emergency amendments to rules 3.170 and 3.172 were published for comment in the October 15, 2006, edition of The Florida Bar News, and comments have now been filed by several entities, including the rules committee.

AMENDMENTS

The Court in Amendments II added subdivision (2) to rule 3.170(k), Responsibility of Court on Pleas, to provide that courts shall inquire into the existence of DNA evidence before accepting a plea of guilty or nolo contendere to a felony. The rules committee now points out that the Court’s emergency amendments to this rule are unnecessary in light of the committee’s proposed amendments to rule 3.172(d), which are discussed below. After considering the various comments, we conclude that the committee’s proposed amendments to rule 3.172(d) render the prior emergency amendments to rule 3.170(k) redundant — there is no reason to include the same language in two separate places in the rules. Accordingly, we adopt the committee’s proposed amendments to rule 3.170(k), which have the effect of returning this rule to its original form.

Next, the Court in Amendments II amended rule 3.172(d), Inquiry Concerning DNA Evidence, to do the following: to provide that courts shall inquire into the existence of DNA evidence before accepting a plea of guilty or nolo contendere to a felony, and to set forth a list of issues that the judge must inquire into during the plea proceeding. The committee now proposes that the Court adopt a revised version of this rule; the revised version is an amalgam of both sections 925.12(2) and 925.12(8), Florida Statutes (2006). With regard to the concern raised by Justice Anstead in Amendments II that courts should be required to make a DNA finding during the plea proceeding, the committee is of the opinion that the detailed colloquy required by subdivision (d) will necessarily cause trial judges to reveal their findings and that no additional explanatory language is necessary in this regard.

FACDL agrees with the Court’s emergency amendments to this rule but also agrees with Justice Anstead’s position that the trial court should make a DNA finding during the plea proceeding. FPDA, on the other hand, disagrees with the Court’s emergency amendments for several reasons. FPDA contends as follows: (a) that the DNA inquiry is a matter that falls outside the Legislature’s purview, (b) that the rule places an undue burden on the defendant, and (c) that the DNA inquiry will result in the impermissible waiver of potentially meritorious postconviction claims. We conclude, however, that the matters raised by FPDA are matters that should be addressed in a proper case and controversy, not in this rules case. See In re Amendments to the Fla. Evidence Code, 825 So.2d 339, 341 (Fla.2002); In re Amendments to the Fla. Evidence Code, 782 So.2d 339, 341 (Fla.2000). Because the rules committee’s proposed amendments address the statutory requirements clearly and concisely, we adopt' the proposed amendments to this rule.

Finally, the Court in Amendments I adopted the rules committee’s proposed amendments to rule 3.853(d), Time Limitations, which eliminated the deadline for filing certain motions for postconviction DNA testing. The rules committee now proposes that the Court further amend the rule by deleting language that provides that certain motions for DNA testing “shall be treated as raising a claim of newly discovered evidence and the time periods set forth in rules 3.850 and 3.851 shall commence on the date that the written test results are provided,” and by adding the following language: “The motion for postconviction DNA testing may be filed or considered at any time following the date that the judgment and sentence in the case becomes final.” Because these proposals render the rule consistent with the statute, we adopt the rules committee’s proposed amendments to this rule.

We hereby adopt the amendments to the Florida Rules of Criminal Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

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

ANSTEAD, J., concurs specially with an opinion, in which PARIENTE and QUINCE, JJ., concur.

ANSTEAD, J.,

specially concurring.

I remain convinced that a trial court express finding as to the existence of DNA evidence would bring more clarity and certainty to the plea process, and more importantly, would reduce the need for future litigation on the issue.

PARIENTE and QUINCE, JJ, concur.

APPENDIX

RULE 3.170. PLEAS

(a) — (j)[No change]

(k) Responsibility of Court on Pleas.

(1) No plea of guilty or nolo contende-re shall be accepted by a court without the court first determining, in open court, with means of recording the proceedings stenographically or mechanically, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its volun-tariness and that there is a factual basis for the plea of guilty. A complete record of the proceedings at which a defendant pleads shall be kept by the court.

(2) No plea of guilty or nolo-contende-re to a-felony shall be accepted by a court without the court first inquiring of the defendant and of counsel for the defendant and the-state as to physical evidence containing-DNA known to exist that could exonerate-the defendant. — If no- physical evidence containing DNA that could exonerate the defendant is ■known-fco-exist, the court may proceed with consideration-of-accepting the plea. If physical evidence containing DNA that could exonerate the defendant is known to exist, the-court may postpone fee-proceeding on -the defendant’s behalf and-order-DNA testing upon motion of counsel-specifying the physical evidence to be tested.

13) — A complete record -of — fee proceedings at which a defendant pleads shall be-kept by fee-court.

(Z) [No change]

Committee Notes [No change]

RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA

(a) Voluntariness; Factual Basis.

Before accepting a plea of guilty or nolo contendere, the trial judge shall be satisfied determine that the plea is voluntarily entered and that there is a factual basis for it the plea exists. Counsel for the prosecution and the defense shall assist the trial judge in this function.

(b) [No change]

(c) Determination of Voluntariness.

Except when a defendant is not present for a plea, pursuant to the provisions of rule 3.180(d), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:

(1) the nature of the charge to which the plea is offered, the maximum possible penalty, and any mandatory minimum penalty provided by law--if any, and the maximum-possible penalty provided bytiaw;
(2) if the defendaat-is not represented by an attorney, that the defendant has fee right to be represented by an attorney at every stage of the proceeding against-him or her and, if necessary, ©se an attorney will be appointed to represent him or her;
(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, and that the defendant-has the right to be tried by a jury, and at that trial a defendant has the right to the assistance of counsel, the right to compel attendance of witnesses on his or her behalf, the right to confront and cross-examine witnesses against him or her, and the right not to testify or be compelled to incriminate himself or herself;
(4) that if the defendant pleads upon a plea of guilty, or nolo contendere without express reservation of the right to appeal, he or she gives up the right to appeal all matters- relating to the judgment, including the issue of guilt or innocence, but does not impair the right to review by appropriate collateral attack;
(5) — (7) [No change]
(8) that if he or she pleads guilty or nolo contendere the trial judge must inform him or her-that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases; and
(9) that if the defendant pleads guilty or nolo contendere, and the offense to which the defendant is pleading is a sexually violent offense or a sexually motivated offense, or if the defendant has been previously convicted of such an offense, the plea may subject the defendant to involuntary civil commitment as a sexually violent predator upon completion of his or her sentence. It shall not be necessary for the trial judge to determine whether the present or prior offenses were sexually motivated in this respect,- as this admonition shall be given to all defendants in all cases.

(d) Inquiry — Concerning—DNA—Evidence, — Before- accepting a plea-of-guilt-y or nolo-contendere to- a felony, the trial judge must inquire-of-the defendant-and-of counsel for the defendant and the state as to — physical—evidence—containing—DNA known to exist that could exonerate-the defendant. — The judge must inquire into the following;

(1) whether counsel for the defense has reviewed the discovery disclosed by the state and-whether such-discover included a listing or description of physical items of evidence;
(2) whether the-nature of the - evidence against the defendant disclosed through discovery has been reviewed with the defendant;
(3) whether the defendant or counsel for the defendant is aware of any physical evidence disclosed by the -state-fop which DNA testing may exonerate the defendant; and
(4) whether-the state is aware of any physical evidence-for which DNA testing may exonerate the defendant.

(d) DNA Evidence Inquiry. Before accepting a defendant’s plea of guilty or nolo contendere to a felony, the judge must inquire whether counsel for the defense has reviewed the discovery disclosed by the state, whether such discovery included a listing or description of physical items of evidence, and whether counsel has reviewed the nature of the evidence with the defendant. The judge must then inquire of the defendant and counsel for the defendant and the state whether physical evidence containing DNA is known to exist that could exonerate the defendant. If no such physical evidence is known to exist, the court may accept the defendant’s plea and impose sentence. If such physical evidence is known to exist, upon motion of counsel the court may postpone the proceeding and order DNA testing.

(e) — (j) [No change]

Committee Notes [No change]

RULE 3.853. MOTION FOR POST-CONVICTION DNA TESTING

(a) Purpose. This rule provides procedures for obtaining DNA (deoxyribonucleic acid) testing under sections 925.11 and 925.12, Florida Statutes.

(b) Contents of Motion. The motion for postconviction DNA testing must be under oath and must include the following:

(1) a statement of the facts relied upon in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;
(2) a statement that the evidence was not previously tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result establishing that the movant is not the person who committed the crime;
(3) — (6) [No change]

(c) Procedure.

(1) Upon Os receipt of the motion, the clerk of the court shall file it and deliver the court file to the assigned judge.
(2) The court shall review the motion and deny it if it is facially insufficient. If the motion is facially sufficient, the prosecuting authority shall be ordered to respond to the motion within 30 days or such other time as may be ordered by the court.
(3) Upon Os receipt of the response of the prosecuting authority, the court shall review the response and enter an order on the merits of the motion or set the motion for hearing.
(4) In the event that the motion shall proceed to a hearing, the court may appoint counsel to assist the movant if the court determines that assistance of counsel is necessary and upon making the appropriate finding of indigence.
(5) — (6) [No change]
(7) The court-ordered DNA testing shall be ordered to be conducted by the Department of Law Enforcement or its designee, as provided by statute. However, the court, upon a showing of good cause, may order testing by another laboratory or agency certified by the American Society of Crime Laboratory Directors or the National Forensic Science Training Center when if requested by a movant who can bear the cost of such testing.
(8) [No change]

(d) Time Limitations. A motion to vacate filed under rule 3.850-or-a-motion for postconviction or collateral relief filed under-rule 3.851, which-is- based solely on the results'■ of the cour-t-ordered DNA testing obtained under this- rule, shall be treated as-r-aising a claim~of newly-discovered-evidence- and the time--periods set forth in r-ules- 3.850 and 3.85-1- shall commence on the -date that the -written test results are provided to the court, the movant, and the prosecuting authority pursuant to subsection (c)(8). The motion for postconviction DNA testing may be filed or considered at any time following the date that the judgment and sentence in the case becomes final.

(e) — (f) [No change]

        .See Amendments to Fla. Rules of Crim. Pro. 3.170 & 3.172, 938 So.2d 978 (Fla.2006); Amendments to Fla. Rules of Crim. Pro. 3.853(d), 938 So.2d 977 (Fla.2006); Amendments to Fla. Rules of Crim. Pro. 3.853(d)(1)(A), 884 So.2d 934 (Fla.2004); Amendments to Fla. Rules of Crim. Pro. 3.853(d)(1)(A), 857 So.2d 190 (Fla.2003); Amendment to Fla. Rules of Crim. Pro. Creating Rule 3.853, 807 So.2d 633 (Fla.2001).

      . Comments have been filed by the rules committee, the Florida Association of Criminal Defense Lawyers (FACDL), and the Florida Public Defenders Association (FPDA).

      . FACDL agrees with the Court’s emergency amendments, and FPDA objects to the emergency amendments on various grounds.

      . See Amendments II, 938 So.2d at 979 (An-stead, J., specially concurring) ("I would require that the trial court actually make a finding as to the existence of DNA evidence during the plea proceedings.”).

      . In addition to the changes discussed above, there are also several additional amendments — to render the rules consistent with the Act in other regards and to correct grammar and syntax — as reflected in the appendix.


author: KLEIN, J.

text:
    Fred KELLER, Appellant, v. ESTATE OF Rosemarie B. KELLER, Appellee.
    No. 4D04-2427.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Rehearing Denied April 30, 2007.
    Donald J. Sasser of Sasser, Cestero & Sasser, P.A., West Palm Beach, for appellant.
    Martin L. Haines, III of Martin L. Haines, III, Chartered, Lake Park, for appellee.
   KLEIN, J.

This is an appeal and cross-appeal from a judgment dissolving the marriage of the Kellers. We affirm all issues except for the denial of attorney’s fees to Mr. Keller for trust litigation.

The final judgment and order on rehearing made the following findings. Mr. Keller, a fifty-six year old wealthy resident of Palm Beach, placed a personal advertisement in a German newspaper in 1992, seeking a young, attractive female companion. Rose, who was about twenty-two, responded, and after some correspondence, came to Florida. After signing an antenuptial agreement, they married in August, 1992, and their one child, Fred, was born in 1995.

The trial court found that after the first few years of the marriage, which were harmonious, financial issues created conflict. Mrs. Keller demanded that she be made a one-half owner of her husband’s assets, which were primarily real estate, and Mr. Keller purported to make changes she requested, the validity of which made up many of the issues at trial and in this appeal. In the final judgment the court found in favor of Mrs. Keller on the transfers made during the marriage. After the entry of the final judgment, but before motions for rehearing were determined, Mrs. Keller was shot to death and Mr. Keller was charged with her murder and other crimes. The charges have not been resolved.

During the marriage, Mr. Keller represented that he was increasing his wife’s interests in their real estate holdings, which were held in trusts, and it is the court’s findings in favor of Mrs. Keller which are the basis of most of the issues raised by Mr. Keller. The trusts, which were numerous, were identified by numbers. Land Trust No. 1, with Mr. Keller as trustee, and both of the Kellers guaranteeing a promissory note, acquired acreage in Virginia in 1997. Mr. Keller argued that Mrs. Keller had no interest in this property because the trust instrument itself had not been signed by the Kellers. The court found, however, that the failure of the parties to sign that particular document was a mere oversight. The parties were equally liable for the debt on the property, and the unsigned trust instrument was filed in a file containing all of the other signed trust instruments. Mr. Keller testified that he had deliberately not signed the trust document because he had changed his mind, but the court found his testimony not credible. The court properly considered all of the other documents relating to the transaction, Cavallaro v. Stratford Homes, Inc., 784 So.2d 619 (Fla. 5th DCA 2001), Cook v. Theme Park Ventures, 638 So.2d 468 (Fla. 5th DCA 1994), and the finding that the trust was created is supported by the evidence.

Another parcel acquired during the marriage was temporarily held by a corporation until environmental problems were resolved, with the intent that it then be placed into a trust in which the parties were equal beneficiaries. The corporation controlled by Mr. Keller did not convey the property to the trust; however, the court established a constructive trust based on unjust enrichment, because joint funds or joint debt were used to acquire and manage the property. There was ample evidence that Mr. Keller had intended to transfer the property to a trust and the court again found his explanation not credible. We find no error. Quinn v. Phipps, 93 Fla. 805, 814, 113 So. 419 (1927) (“[A] court of equity will raise a constructive trust and compel restoration where one through actual fraud, abuse of confidence reposed and accepted, or through other questionable means gains something for himself which in equity and good conscience he should not be permitted to hold.”).

Another issue involves a number of other trusts which are factually similar. In 1999, at a time when Mrs. Keller was a minority beneficiary of the trusts, Mr. Keller, at her request, made written changes on each trust document to reflect that she had a fifty percent beneficial ownership interest. He testified in the dissolution proceeding that he had deliberately not followed through on certain formalities required by the trust instruments regarding the altering of the beneficial ownership interests. Again, his testimony, which was in conflict with his written changes on the trust instruments, was found not credible. There was ample evidence to support the trial court’s conclusion that Mr. Keller was estopped from raising the technical deficiencies, which included the fact that Mrs. Keller was equally jointly liable on the indebtedness on most, if not all of these properties. Cotten v. Williams, 1 Fla. 37, 54 (Fla.1846) (“No man can avoid his own deed by which an estate has passed, on account of his own fraud in executing it.”). For the same reasons we conclude that the court did not err with the La Puerta Way property, or the Pike Road property.

We have considered the other issues raised by Mr. Keller and find them to be without merit except for one, the denial of his request for attorney’s fees from the beneficiaries for litigation relating to the trusts. The trust agreements provide for unconditional reimbursement of attorney’s fees if the trustee participates in litigation for any reason, and Mrs. Keller has provided us with no argument as to why that provision is not enforceable. We affirm, however, the ruling that Mr. Keller could not remain as the sole trustee of the land trusts.

On cross-appeal the estate argues that the court erred in enforcing the ante-nuptial agreement, because there had been a modification by the parties. Although the court did err in concluding that the contract could not be modified as it was a contract under seal, Carpenter v. Florida Cent. Credit Union, 369 So.2d 935, 936 (Fla.1979) (“The common law significance accorded sealed instruments was long ago abrogated by statute in Florida.”), the court also found, as a matter of fact, that there had been no modification of the ante-nuptial agreement. That finding is supported by the evidence. The error in holding that it was a contract under seal was accordingly harmless. The estate’s remaining arguments as to the antenuptial agreement, including attorney’s fees and costs, are without merit.

Affirmed in part and reversed in part.

POLEN and MAY, JJ., concur.


text:
    John J. WILLIAMS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4445.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    John J. Williams, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. Marlin v. Fla. Dep’t of Corr., 768 So.2d 1150 (Fla. 1st DCA 2000).

BROWNING, C.J., WOLF, and KAHN, JJ., concur.


text:
    George HUFF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0051.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Rehearing Denied April 12, 2007.
    George Huff, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

BROWNING, C.J., WOLF, and KAHN, JJ., concur.


text:
    Kenneth J. BACON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6413.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    Kenneth J. Bacon, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(B).

WEBSTER, POLSTON, and HAWKES, JJ., concur.