author: ALLEN, J.

text:
    FLORIDA DEPARTMENT OF EDUCATION, Appellant, v. Janet GARRISON, Appellee.
    No. 1D06-2312.
    District Court of Appeal of Florida, First District.
    April 19, 2007.

      Daniel J. Woodring, General Counsel, and Timothy D. Osterhaus, Assistant General Counsel of the Florida Department of Education, Tallahassee, for Appellant.
    Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellee.
   ALLEN, J.

In this action brought under Florida’s Public “Whistle-blower’s Act,” sections 112.3187-112.31895, Florida Statutes, the Florida Department of Education challenges a final judgment entered after a jury verdict in favor of its former employee, Janet Garrison. We affirm the final judgment and write briefly only to explain that section 768.28, Florida Statutes, has no application in connection with a claim under the Public Whistle-blower’s Act (“the Act”).

Although we recently affirmed an award of attorney’s fees in a suit brought under the Act as a sanction against a plaintiff who failed to satisfy the presuit notice requirements of section 768.28(6), Florida Statutes, Barthlow v. Jett, 930 So.2d 739 (Fla. 1st DCA 2006), the applicability of the section 768.28 presuit notice requirements to a cause of action under the Act was not placed in issue by the parties in that case and therefore was not decided. Accordingly, it appears that the issue we address is one of first impression.

We are guided in our decision here by Maggio v. Fla. Dep’t of Labor and Employment Sec., 899 So.2d 1074 (Fla.2005), in which the supreme court held that the presuit notice requirements of section 768.28(6) have no application to a cause of action under the Florida Civil Rights Act of 1992, a statutory provision similar in many respects to Florida’s Public Whistle-blower’s Act. Observing that resolution of the issue for decision there should be resolved through ascertainment of legislative intent as revealed by the text of the Florida Civil Rights Act, the supreme court referenced three aspects of the Florida Civil Rights Act that compelled it to conclude that the Florida Civil Rights Act was a “stand-alone statutory scheme” specifically designed to address civil rights violations:

First, the State’s waiver of sovereign immunity for civil rights claims derives from the Florida Civil Rights Act, not from the waiver of sovereign immunity contained in section 768.28. Second, the inclusion of detailed presuit requirements within the Act, which serve to place the State on notice of the alleged violation, suggests that the Legislature did not intend to require compliance with an additional unreferenced notice provision. And third, the express reference in the Act to section 768.28(5), but not to section 768.28(6), supports the conclusion that the Legislature did not intend that the provisions of section 768.28(6) apply to the Act.

Id. at 1078. The court bolstered its conclusion by highlighting the remedial nature of the Florida Civil Rights Act and the Legislature’s express directive that it be “liberally construed” to further its general purpose.

Florida’s Public Whistle-blower’s Act, likewise a remedial statute that is to be given a liberal construction in favor of granting access to the remedy provided therein, see Irven v. Dep’t of Health and Rehabilitative Servs., 790 So.2d 403 (Fla.2001), shares two of the three aspects of the Florida Civil Rights Act cited by the supreme court as dispositive in Maggio. First, it clearly waives sovereign immunity independent of the waiver contained in section 768.28. And second, it contains its own detailed administrative presuit notice requirements, sets forth a plethora of other conditions that must be satisfied before a claim can be successfully brought under its provisions, and explicates the particular remedies available to an aggrieved employee (including the filing of a “civil cause of action,” once certain prerequisites have been met). Although, unlike the Florida Civil Rights Act, the Public Whistle-Blower’s Act makes no specific reference to any of the provisions of section 768.28, this does not demonstrate that the Legislature was unaware of section 768.28 when it drafted the Public Whistle-blower’s Act in 1986 (section 768.28 having been enacted in 1973) or that it somehow lacked the ability to make a specific reference to section 768.28 had it so desired. Rather, we view this as an indication that there was no legislative intent that any of the provisions of section 768.28 apply to a cause of action under the Act, which, like the Florida Civil Rights Act, is a “stand-alone statutory scheme” designed to provide an aggrieved party with a remedy against the state or its agencies or subdivisions under certain, specified conditions.

Moreover, as the supreme court recognized in Maggio, there is some question as to whether section 768.28 was ever intended to apply to a cause of action such as the one at hand, one not arising out of a recognized common law duty for which a private person would be liable:

[W]e have previously stated that the “sole purpose [of the enactment of section 768.28] was to waive [sovereign] immunity[,] which [previously] prevented recovery for breaches of existing common law duties of care.” Trianon Park Condominium Ass’n, Inc. v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985) (emphasis added); see also Hill [v. Department of Corrections], 513 So.2d [129,] at 133 [ (Fla.1987) ] (agreeing with a federal court’s conclusion that section 768.28 “was limited to traditional torts; specifically, those in which the state would be liable if it were a private person”). Under this narrow reading, only those claimants bringing common law tort claims would be subject to the pre-suit notice requirements of section 768.28(6).

Maggio, 899 So.2d at 1081 (emphasis in original). However, as did the supreme court in Maggio, we decline to resolve this question, having already determined that the language of the Act itself reveals that the Legislature did not intend for the provisions of section 768.28 to apply to a cause of action under the Act.

We note that the supreme court also briefly contemplated in Maggio whether its prior characterization of a claim of retaliatory discharge under section 440.205, Florida Statutes, as being “tortious in nature,” Scott v. Otis Elevator Co., 524 So.2d 642 (Fla.1988); Scott v. Otis Elevator Co., 572 So.2d 902 (Fla.1990), served to bring such a claim within the purview of section 768.28. The supreme court observed that this court and the third district have resolved that issue in the affirmative, at least so far as the presuit notice requirements of section 768.28(6) are concerned, see Osten v. City of Homestead, 757 So.2d 1243 (Fla. 3d DCA 2000); Kelley v. Jackson County Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), but the supreme court declined to “determine the correctness of these decisions” because that question was not before the court for decision. Observing that section 440.205 is clearly distinguishable from the Florida Civil Rights Act in that section 440.205 has no presuit notice requirements, no designated forum for adjudicating claims, no explication of the types of relief to which an aggrieved party is entitled, and no reference to any portion of section 768.28, the supreme court concluded that section 440.205 deci-sional law does not lend support to the argument that claims filed under the Florida Civil Rights Act are subject to the requirements of section 768.28(6). We likewise conclude that the Public Whistle-blower’s Act is distinguishable from section 440.205, and therefore the decisions construing section 440.205 are not persuasive in resolution of the issue addressed in this case.

The final judgment is AFFIRMED.

WEBSTER and ROBERTS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wykiza L. BROCK, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2058.
    District Court of Appeal of Florida, First District.
    April 19, 2007.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum; Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his conviction, following a jury trial, for attempted sexual battery upon a person 12 years of age or older, in violation of sections 777.04 and 794.011(5), Florida Statutes (2003). He contends that the trial court committed reversible error when it gave an instruction on the permissive lesser-included offense of attempted sexual battery over his objection because the evidence proved either a completed offense or none at all. Having carefully reviewed the evidence, we agree that the evidence proved either a completed sexual battery or no offense at all. Accordingly, the trial court did commit reversible error when it gave an instruction on attempted sexual battery to the jury over appellant’s objection, and we are constrained to reverse the conviction.

During the charge conference, the state requested that the trial court instruct the jury on the permissive lesser-included offense of attempted sexual battery. Appellant objected, arguing that there was no evidence to support an attempt instruction—either the jury would believe the state’s evidence, in which case a completed sexual battery occurred; or it would believe appellant’s evidence, in which case no offense occurred. The trial court overruled appellant’s objection, stating that it intended to give an attempt instruction. Immediately before the trial court instructed the jury, appellant renewed his objection to the attempt instruction, and the trial court again overruled the objection. The trial court then instructed the jury, including a charge on attempted sexual battery. This was error.

Florida Rule of Criminal Procedure 3.510(b) states in pertinent part that “[t]he judge shall not instruct on any lesser included offense as to which there is no evidence.” When a judge gives an instruction on a lesser-included offense over a defendant’s objection and no evidence has been presented to support that instruction, the judge abuses his or her discretion, and error occurs. See State v. Espinosa, 686 So.2d 1345, 1347 (Fla.1996); State v. Robinson, 771 So.2d 1256, 1258 (Fla. 3d DCA 2000). Here, because the evidence established either a completed sexual battery or no crime at all, the trial court should not have given the attempt instruction and, by doing so, committed reversible error. Robinson, 771 So.2d at 1258. Accord Gleason v. State, 591 So.2d 278, 279 (Fla. 5th DCA 1991).

By finding appellant guilty of the lesser-included offense of attempted sexual battery, the jury necessarily found appellant not guilty of the charged sexual battery. Accordingly, the prohibition against double jeopardy prohibits the state from again trying appellant on that charge. See State ex rel. Landis v. Lewis, 118 Fla. 910, 160 So. 485, 486-87 (1935). On remand, appellant may be tried only for battery in violation of section 784.03, Florida Statutes (2003), because that is the only other lesser-included offense as to which the jury was instructed. See Lee v. State, 685 So.2d 1275, 1276-77 (Fla.1996); Gleason, 591 So.2d at 279.

We reverse appellant’s conviction for attempted sexual battery, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Frankie Lee DRAKES, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D05-3860.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Frankie Lee Drakes, pro se, for Appellant.
    Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the lower court’s order dismissing Appellant’s challenge to the Parole Commission’s decision to suspend his presumptive parole release date. See Brooks v. Fla. Parole Comm’n, 948 So.2d 801 (Fla. 1st DCA 2006). Because Appellant’s claim is a collateral criminal proceeding the appellant is not subject to the prisoner indi-gency lien of section 57.085, Florida Statutes (2005). See Brooks, 948 So.2d at 801. We remand with directions that the trial court remove the lien on Appellant’s prisoner trust account and allow the petition to proceed without requiring prepayment of the calculated partial payment for court costs and fees.

REVERSED AND REMANDED.

BROWNING, C.J., BENTON and LEWIS, JJ., concur.


text:
    Todd JOHNSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-3456.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Todd L. Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Connie L. Beach, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The trial court’s order summarily denying Todd Johnson’s petition for writ of habeas corpus is quashed, and the cause is remanded to the circuit court for further proceedings consistent with Duncan v. Florida Parole Commission, 939 So.2d 176 (Fla. 1st DCA 2006).

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Christopher McMANN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3545.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Edward C. Hill, Jr., Special Counsel, Criminal Appeals, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Christopher McMann, appeals his judgment and sentence and argues that the trial court erred in denying his motion to dismiss the charge of failing to report every six months to the county sheriffs office in violation of section 943.0435(14)(a), Florida Statutes (2005). We agree with Appellant that he did not qualify as a sexual offender under section 943.0435 because he was on probation. See § 943.0435(l)(a)2., Fla. Stat. (2005) (defining a “sexual offender,” as that term is used in section 943.0435, as a person who has been released on or after October 1, 1997, from the sanction imposed for an enumerated offense and providing that a sanction includes but is not limited to probation); see also Grumet v. State, 771 So.2d 39, 42 (Fla. 4th DCA 2000). However, Appellant did qualify as a sexual offender under section 944.607, Florida Statutes (2005). See § 944.607(l)(a), Fla. Stat. (2005) (defining “sexual offender,” as that term is used in section 944.607, as a person who is in the custody or control of, or under the supervision of, the department or is in the custody of a private correctional facility); see also Grumet, 771 So.2d at 42.

Importantly, section 944.607(13)(a) has the same reporting requirement as does section 943.0435(14)(a) and contains identical language. While the State properly included the language of section 944.607(13)(a) in the charging document, it erred in citing section 943.0435(14)(a). However, an “[e]rror in or omission of the citation [in the charging document] shall not be ground for dismissing the count or for a reversal of a conviction based thereon if the error or omission did not mislead the defendant to the defendant’s prejudice.” Fla. R.Crim. P. 3.140(d)(1). Appellant has neither alleged nor demonstrated that the State’s error misled him to his prejudice.

Accordingly, we AFFIRM.

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    William HAMILTON, Petitioner, v. James McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4446.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    William Hamilton, pro se, Petitioner.
    Kathleen Van Hoene, General Counsel, Department of Corrections; Bill McCol-lum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In the case before us, Petitioner argues that the circuit court erred in denying his petition for writ of mandamus. We find his argument is without merit and is rejected; however, because Respondent concedes that the underlying action constitutes a “collateral criminal proceeding” under Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), the circuit court erred by imposing a lien on Petitioner’s prison trust account. We accordingly quash the portion of the circuit court’s order on indigen-cy imposing a lien as a result of the filing of the petition for writ of mandamus below. The circuit court should direct the reimbursement of any funds that have been withdrawn from Petitioner’s account to satisfy the improper lien order.

The petition is DENIED as to the challenge of the trial court’s denial of mandamus relief, but is GRANTED as to the challenge to the lien orders, and those orders are hereby QUASHED.

KAHN, POLSTON and THOMAS, JJ., concur.


text:
    Christopher ODOM, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5468.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Nancy A. Daniéls, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 9, 2007, the Court has determined that no written order has yet been rendered. Therefore, the Court lacks jurisdiction. Fla. R.App. P. 9.020(h). Accordingly, the appeal is hereby dismissed.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


text:
    Tammy L. COURSON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Homes of Merit, Inc., Appellees.
    No. 1D07-0952.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Tammy L. Courson, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 1, 2007, the Court has determined that the notice of appeal failed to timely invoke the Court’s appellate jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed as untimely.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


text:
    Freddie R. PATTERSON, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0077.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Freddie R. Patterson, III, pro se, Petitioner.
    Bill McCollum, Attorney General, and Sheron L. Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered August 31, 2006, in Duval County Circuit Court case number 16-2005-CF-6300-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). The court notes that the transcript of the sentencing hearing reflects that the trial court has appointed the Public Defender to represent petitioner on appeal. To the extent it has not already done so, the circuit court is directed to enter a written order of appointment.

DAVIS, PADOVANO, and HAWKES, JJ., Concur.


author: MONACO, J.

text:
    J.D., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2128.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The sole issue presented to us in this appeal by a juvenile of a finding of indirect contempt is whether the trial court erred in imposing consecutive fifteen-day sentences for each of several violations of a behavior order. Because we conclude that the sentences violate section 985.216, Florida Statutes (2006), we reverse.

The appellant, J.D., pled not guilty to charges of burglary of a dwelling and grand theft as alleged in a petition for delinquency. A standard behavior order was put into place so that J.D. could be released to the custody of his mother pending trial. Several weeks later the trial court issued an order to show cause requiring J.D. to demonstrate why he should not be held in contempt for violating the behavior order. At the hearing on the order to show cause J.D. admitted the violation and was placed in secure detention for two days with three additional days suspended.

Several weeks later the trial court issued a second order to show cause for five more violations of the behavioral order. At the show cause hearing J.D. once again admitted the violations. The trial judge indicated that he thought he could place J.D. into secure detention for fifteen days for each of the five violations of the behavior order, for a total of seventy-five days. Defense counsel argued that J.D. could only be placed into secure detention for fifteen days, plus three additional days that had been suspended from the previous contempt. The State at the trial level appears to have agreed. The trial court did not.

The court eventually placed J.D. into secure custody for fifteen days for the first violation of the behavior order, consecutive to the three days that had been earlier suspended. For the second violation the trial court placed J.D. into secure custody for an additional fifteen days consecutive to the earlier placement. He then issued three additional fifteen-day sentences for the remaining three violations, all of which were suspended. J.D. unsuccessfully sought reconsideration of this ruling by the trial court, but was able to obtain a stay pending review.

Section 985.216, Florida Statutes, controls the punishment which may be meted out to a juvenile for contempt of court. Subsection (2)(a), the critical part of that statute for purposes of this appeal, reads as follows:

(2) Placement in a secure facility. — A child may be placed in a secure facility for purposes of punishment for contempt of court if alternative sanctions are unavailable or inappropriate, or if the child has already been ordered to serve an alternative sanction but failed to comply with the sanction.
(a) A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.

[Emphasis supplied]. While we are able to find no other case dealing with the stacking of periods of secure detention confinement of juveniles for contempt under this particular statute, we are convinced by cases dealing with analogous situations that stacking is not permitted.

In Williams v. State, 594 So.2d 273 (Fla.1992), for example, the trial court utilized multiple violations of probation as the basis for a departure from the presumptive guidelines. The Florida Supreme Court, however, held that a departure sentence for probation violation under these circumstances was impermissible because multiple violations of probation could not be a valid basis for departure from the sentencing guidelines. The Williams court defined the term “multiple probation violations” as follows:

The use of the term “multiple probation violations” in this opinion refers to successive violations which follow the reinstatement or modification of probation rather than the violation of several conditions of a single probation order.

Williams, 594 So.2d at 274 n. 3.

Similarly, in R.B. v. Miles, 871 So.2d 949 (Fla. 2d DCA 2004), the Second District was asked to construe section 985.215(c) and (g), Florida Statutes (2003), which read in pertinent part:

(c) Except as provided in paragraph (g), a child may not be held in secure ... detention care under a special detention order for more than 21 days unless an adjudicatory hearing for the case has been commenced in good faith by the court.
(g) Upon good cause being shown that the nature of the charge requires additional time for the prosecution or defense of the case, the court may extend the time limits for detention specified in paragraph (c) ...

The appellate court there concluded that the trial court was not permitted to stack secure detention periods for two or more offenses, and that habeas relief was appropriate because the adjudicatory hearing was not commenced within the 21 day limit.

Finally, in W.B.T. v. Esteves, 825 So.2d 1055 (Fla. 4th DCA 2002), the Fourth District construing the same statute also opined that the detention statute would not authorize a court to stack twenty-one day detention periods consecutively. More particularly, the court said that, “a court cannot, at one detention hearing, order secure detention for consecutive twenty-one day periods even though there are multiple delinquent acts charged.”

In the present case we are again considering multiple violations of a single order. As in probation violation cases, and cases arising out of former section 985.215(c) and (g), the violation of a single behavior order by a juvenile can only result in a single five or fifteen-day placement in secure detention, as appropriate. The power to place juveniles charged with or found to have committed a delinquent act into detention is entirely statutory in nature. Strict compliance with the statute is required. See L.K. v. Dep’t of Juvenile Justice, 917 So.2d 919, 920 (Fla. 1st DCA 2005); W.C. v. Smith, 898 So.2d 1137, 1138 (Fla. 1st DCA 2005). Here, the consecutive detention periods imposed upon J.D. were in violation of the statutory limitations, and the order entered by the trial court making that improper imposition must be reversed.

Finally, we note that the State urges that J.D. failed to preserve the issue in question for review. We reject this position. Our review of the record reflects that J.D.’s contemporaneous objection to the detention and his later request for the court to revisit the imposition of detention were sufficient to preserve the error for review. J.D. was not required to use Florida Rule of Juvenile Procedure 8.135 in order to preserve his position on appeal, as argued by the State, although he was certainly free to do so. The trial court was folly put on notice that an error had occurred by the contemporaneous objection and by J.D.’s request for it to reconsider, and was given the opportunity to correct it. See Franqui v. State, 804 So.2d 1185 (Fla.2001).

REVERSED.

PALMER and ORFINGER, JJ., concur.

      . The transcript indicates that after the trial judge asked the State if it wished to be heard on the sentencing issue, the assistant state attorney said, "Your honor, we would support what (defense counsel) is asking for, which is a total of eighteen days."

      . Effective January 1, 2007, this statute was renumbered as section 985.037(2).

      . The Florida Supreme Court, however, did indicate that in the case of multiple violations of probation, sentences could be bumped one cell or guideline range for each violation.

      . This statute is now renumbered section 985.26(2), and modified slightly.


text:
    Fred WILKINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-291.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.
    Fred Wilkinson, Carrabelle, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Fred Wilkinson appeals the denial of his fourth rule 3.800(a) motion to correct illegal sentence. In this successive motion, Wilkinson once again challenges his habitual offender sentences entered in Flagler County case nos. 89-304 and 89^08. The trial court properly denied Wilkinson’s motion as successive, and we issued a Spencer show cause order. Wilkinson responded by once again attempting to argue the merits of his underlying motion.

At this point, Wilkinson is abusing the judicial process with his successive attacks on his sentences. In order to conserve judicial resources, we prohibit Fred Wilkinson from filing with this Court any further pro se pleadings concerning Fla-gler County, Seventh Judicial Circuit Court case nos. 89-304 and 89-408. The Clerk of this Court is directed not to accept any further pro se filings concerning these cases. Any further pleadings regarding these cases will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”).

AFFIRMED; future pro se filings PROHIBITED.

SAWAYA, LAWSON and EVANDER, JJ., concur.

      . See Fla. R.Crim. P. 3.800.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


author: NORTHCUTT, Judge.

text:
    Douglas PRICE, D.C., Petitioner, v. Richard Warren HANNAHS and Ruth Elsenbernd Hannahs, Respondents.
    No. 2D05-4882.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.

      Michael C. Addison of Addison & Delano, P.A., Tampa, for Petitioner.
    Rachel P. Ray of Hengber, Goldstein & Ray, P.A., Orlando, for Respondents.
   NORTHCUTT, Judge.

In a petition for a writ of certiorari, Douglas Price asks this court to quash an order that imposes a sanction on him and compels him to produce documents. In part, we treat the certiorari proceeding as an appeal, and we reverse the monetary sanction. As for the remainder of Dr. Price’s complaints, we grant the petition in part and quash the portion of the order that requires him to produce documents. In all other respects, the petition is denied.

Dr. Price, a chiropractor, is an expert witness for Yves Georges, who has sued Richard and Ruth Hannahs for injuries he claims to have suffered in an automobile accident. In the underlying litigation, the Hannahs have been provided defense counsel by their insurer, State Farm. It so happens that State Farm has an ongoing dispute with Dr. Price regarding his billings for treating other State Farm insureds. In fact, during the course of this litigation, State Farm sent Dr. Price a civil theft demand letter that claimed treble damages of over $1.8 million and accused Dr. Price of obtaining PIP and medpay payments from State Farm for services that were not rendered, were unlawfully upcoded or unbundled, or were based on fabricated medical records. Given just that brief background, it is no surprise that defense counsel encountered difficulties when attempting to depose Dr. Price in this case.

State Farm’s subpoena duces tecum for Dr. Price’s first deposition had an attached “Schedule A.” This schedule called for Dr. Price to produce thirty categories of documents, almost entirely related to the plaintiffs treatment, billing charges, and payments. When Dr. Price appeared for his deposition, he was not entirely forthcoming with the subpoenaed documents. For example, when defense counsel asked if Dr. Price had brought the sign-in sheets for dates that the plaintiff was treated, Dr. Price said that they were available but that he had not had time to have them copied — even though his deposition had been set some three months earlier. For another example, Dr. Price produced a ledger of charges for the plaintiffs treatment that he admitted was not up to date. After an hour, things grew heated and Dr. Price refused to continue.

Defense counsel then filed a verified motion for an order to show cause and for sanctions. The motion asserted that Dr. Price became loud and aggressive during his deposition, that he failed to produce the requested documents, and that he unilaterally terminated the deposition. For his part, Dr. Price complained that he had not been paid for the deposition. See Fla. R. Civ. P. 1.280(b)(4)(C) (requiring generally that party seeking discovery from an expert pay a reasonable fee). Dr. Price also contended that State Farm was trying to harass him. Given her belief that Dr. Price had engaged in billing irregularities, defense counsel responded that she was allowed to investigate the legitimacy of the bills for Dr. Price’s treatment of the plaintiff. Defense counsel also informed the court that Dr. Price and the plaintiff are involved in a business enterprise whereby Dr. Price gives coupons to his patients that are honored at the plaintiffs restaurant and then redeemed by Dr. Price. According to defense counsel, the business relationship supported a more extensive inquiry into this expert witness’s affairs, although none of the documents requested in Schedule A appear to be related to this relationship.

The court reserved on sanctions and instructed Dr. Price to appear for his next scheduled deposition and answer the questions. He also directed the parties to return to court if they were unable to agree on an hourly rate for Dr. Price’s time. Defense counsel offered to prepare an order, but it appears that no order was ever entered.

For the next deposition, defense counsel’s amended subpoena duces tecum required Dr. Price to produce additional documents set forth on an attached “Schedule B.” This list, comprising thirty-nine categories, again included many documents relating in some way to the plaintiffs treatment, but none relating to the coupon business. Some categories did not relate to this plaintiffs treatment, but appeared designed to ferret out the expert’s general bias for a particular side in litigation. For example, the last fifteen categories asked for any documents, notes, information or evidence substantiating the percentage of Dr. Price’s expert witness work that was performed for plaintiffs as opposed to defendants; the percentage of his patients with personal injury claims or suits, or that were involved in automobile versus other types of accidents; the percentage of Dr. Price’s income earned and time spent as an expert witness; and the number of Dr. Price’s patients who were represented by this plaintiffs counsel or his firm.

Defense counsel prepaid for two hours of Dr. Price’s time and expected him to bill for his additional time. But, again, Dr. Price terminated the deposition after two hours and, again, after he failed to produce all of the requested documents. After the deposition was terminated, defense counsel returned to her office. There, she found Dr. Price’s written response to the document request, which had been mailed before the deposition but apparently was not mentioned during the deposition. In his response, Dr. Price agreed to produce many documents or claimed that he had previously produced them, but he objected on various grounds to the production of other documents. Most of the objections were directed to documents listed in Schedule B. In response to many of the document requests, Dr. Price asserted that he did not track the requested information and did not calculate the requested statistics.

Defense counsel returned to the circuit court, this time with an unverified motion for an order to show cause and for sanctions. After a hearing, the court ordered Dr. Price to appear again for deposition and to remain until dismissed by defense counsel. Defense counsel was ordered to pay Dr. Price for four hours, and Dr. Price was ordered to submit an invoice for any additional time. Without ruling on any of Dr. Price’s objections to the requested documents, the circuit court ordered him to produce all documents requested in Schedules A and B. Finally, Dr. Price was ordered to pay defense counsel $1500. The court did not make any factual findings regarding Dr. Price’s conduct, and it did not find Dr. Price to be in contempt.

We begin with the imposition of the $1500 sanction. This portion of the order responded to defense counsel’s request for the court to hold Dr. Price in contempt. See Fla. R. Civ. P. 1.380(b)(1) (providing contempt as remedy for deponent who fails to answer question after being directed to answer by court); see also Pevsner v. Frederick, 656 So.2d 262 (Fla. 4th DCA 1995) (concluding, based on Fla. R. Civ. P. 1.380, that discovery sanctions may only be imposed against expert witnesses when they are found in contempt). We review contempt orders against nonparties by appeal rather than certiorari. See Nussbaumer v. State, 882 So.2d 1067, 1072 (Fla. 2d DCA 2004) (noting that a nonparty may appeal if cited for contempt); Shook v. Alter, 715 So.2d 1082 (Fla. 4th DCA 1998) (redesignating certio-rari petition as appeal for review of contempt order); compare Fla. R.Crim. P. 3.840(f) (requiring court to enter judgment of guilt for indirect criminal contempt), with Fla. RApp. P. 9.140(b)(1)(A) (allowing appeal of final judgment of guilt).

We deal here with criminal contempt because the purpose of the fine was to punish Dr. Price rather than to coerce his compliance; the order contained no purge provision permitting Dr. Price to avoid paying the fine. See Pugliese v. Pugliese, 347 So.2d 422, 425 (Fla.1977) (describing civil contempt as a method of coercing compliance while criminal contempt operates as a punishment). Because the offending conduct took place outside the presence of the court, any contempt at issue here would be indirect. See id. Indirect criminal contempt requires a judgment of guilt that recites the facts constituting the contempt. Fla. R.Crim. P. 3.840(f); see also Hagerman v. Hagerman, 751 So.2d 152 (Fla. 2d DCA 2000) (reversing order that failed to recite factual basis for contempt). Here, the circuit court did not find Dr. Price to be in contempt, and it did not recite a factual basis for doing so. Ergo, we must reverse the $1500 sanction.

Insofar as the order compels the production of documents by a nonparty, it is reviewable by certiorari because he has no adequate remedy by appeal. See Nussbaumer, 882 So.2d at 1072 (explaining the irreparable harm that results from the absence of an adequate remedy by appeal when order is directed to nonparty). To obtain relief, Dr. Price must also show a departure from the essential requirements of law and material injury. See Syken v. Elkins, 644 So.2d 539 (Fla. 3d DCA 1994), approved, 672 So.2d 517 (Fla.1996).

We conclude that the order departs from the essential requirements of law because the circuit court failed to apply the correct law. In Elkins v. Syken, 672 So.2d 517 (Fla.1996), the supreme court established criteria for the discovery of financial information from an expert witness, and the criteria were adopted in the Florida Rules of Civil Procedure. As set forth in rule 1.280(b)(4)(A)(iii), an expert may be asked about:

1. The scope of employment in the pending case and the compensation for such service.
2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable period of time, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.

An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents.

(Emphasis supplied.)

In this case, a number of the requested documents exceeded the permissible scope of discovery as set forth in the rule. For example, defense counsel sought to compel Dr. Price to produce documents substantiating the percentage of his expert work done on behalf of plaintiffs or defendants and to produce documents substantiating the percentages of his patients who have personal injury claims or suffered injuries in auto accidents. Despite Dr. Price’s response that he does not maintain such records or calculate such statistics, the circuit court ordered him to produce these records, thus compelling him to compile or produce nonexistent documents. Requiring this type of production from a nonparty expert causes a material injury when, as here, it would impose an undue burden or expense. See Syken, 644 So.2d 539 (granting certiorari relief and quashing discovery orders directed to nonparty experts); cf. Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. 2d DCA 2003) (denying certiorari relief when discovery was sought from party, not expert, and noting that party may later seek to recoup costs incurred in responding to discovery request).

Accordingly, we quash the portion of the order that requires Dr. Price to produce the documents requested in Schedule B. If the defense again seeks production of those documents and Dr. Price objects, the circuit court must resolve the controversy in accordance with Elkins and rule 1.280. To the extent that the order requires Dr. Price to sit for his deposition and establishes a procedure for determining his expert witness fee, we deny the petition.

Monetary sanction reversed; petition for certiorari regarding discovery granted in part and denied in part.

SILBERMAN and LaROSE, JJ., Concur.


text:
    J.C., Father of T.J.R., M.E.R., and M.F.R., etc., Appellant, v. T.W.R. and T.A.R., Appellees.
    No. 5D06-3749.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2007.
    Scott Timothy Smith, of Law Offices of Harp Smith, Brooksville, for Appellant.
    David La Croix, Brooksville, for Appel-lee.
   PER CURIAM.

After thoroughly reviewing the record, we conclude the evidence amply supported the trial court’s conclusion that appellant had abandoned his children.

AFFIRMED.

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


author: CASANUEVA, Judge.

text:
    Tarus Edward HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-470.
    District Court of Appeal of Florida, Second District.
    April 25, 2007.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Tarus Harvey was convicted of robbery on July 2, 1999, and sentenced as a prison releasee reoffender (PRR), see § 775.082, Fla. Stat. (Supp.1998), to fifteen years in prison. The information charging Mr. Harvey with robbery had been amended from grand theft because Mr. Harvey and a codefendant allegedly used force to steal gold necklaces from a victim Mr. Harvey claimed owed him money. The victim appeared at the 1999 sentencing héaring and urged the court to exercise leniency by refraining from imposing a PRR sentence. In spite of the victim’s wishes and over the protestations of the defense attorney that the force used in the robbery was minimal, the court designated Mr. Harvey as a PRR and accordingly sentenced him to a fifteen-year minimum mandatory prison term.

Some years after the original appeal from the judgment and sentence was affirmed on other grounds, Mr. Harvey filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), contending that his PRR sentence was illegal because the robbery had not been committed within three years after his release from supervision. In March 2005, the trial court granted the motion, vacated the sentence, and ordered resentencing, which finally occurred on January 6, 2006, after several continuances and hearings. The trial court then reimposed the fifteen-year term by departing from the guidelines recommendation of 13.4 to 16.7 months in state prison, citing as grounds the defendant’s criminal history and escalation from nonviolent to violent crimes.

When it became apparent that the State intended to seek a guidelines departure sentence, the defense first focused on the applicability of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and argued that a jury, not the judge, was required to find that the defendant’s offense was part of an escalating pattern of criminal conduct. The judge rejected the Apprendi argument. We note that the defendant’s conviction became final when his original appeal was affirmed and this court’s mandate issued on April 3, 2000, over two months before the June 26, 2000, decision in Apprendi Thus, Apprendi is potentially applicable only if given retroactive effect. See Cutts v. State, 940 So.2d 1246 (Fla. 2d DCA 2006); Barron v. State, 931 So.2d 929 (Fla. 2d DCA 2006). Recently, the Florida Supreme Court declined to decide the retro-activity issue in Galindez v. State, No. SC05-1341, 955 So.2d 517, 2007 WL 471164 (Fla. Feb.15, 2007), and employed a harmful error analysis for the specific situation addressed in that case. Here, however, we need not decide whether Appren-di retroactively applies to Mr. Harvey’s case because we conclude that the trial court abused its discretion when it sentenced the defendant to a guidelines departure sentence.

Because the defense demanded proof of the prior offenses that would demonstrate an escalating pattern, the State presented certified copies of judgments and sentences in six cases. Little or no explanation of the timing of the offenses was forthcoming. Two of the offenses were sales of cocaine, second-degree felonies, for which Mr. Harvey was sentenced in January 1992. Sentencing in the other four cases occurred on July 2, 1999, the date of the original sentencing for the robbery in this case. Three of those judgments and sentences reflected higher case numbers than this robbery, suggesting but not proving that those offenses were committed after the robbery. They included two cocaine possessions, a trespass on land, and introduction of contraband into a detention facility, all third-degree felonies or lower. Only one judgment and sentence carried a lower trial court case number than this one, suggesting but not proving that the offenses were committed or at least charged prior to the robbery. Those crimes included possession of cocaine, a third-degree felony, and resisting an officer without violence, a first-degree misdemeanor.

In State v. Darrisaw, 660 So.2d 269, 271 (Fla.1995), the Florida Supreme Court addressed the requirements for departing from the guidelines on the basis of escalating pattern of criminal conduct:

Section 921.001(8) speaks in terms of both an increase in the offenses (“escalating”) and some recurring feature of the offenses (“pattern”). If the offenses meet the definition of “escalating,” then the “pattern” requirement can be satisfied either where the offenses are committed in temporal proximity or where there is a similarity of offenses. Such an interpretation of the statute is consistent with the purpose and intent of the sentencing guidelines....

In Darrisaw, the supreme court concluded that the defendant’s offenses escalated because they increased from nonviolent to violent and from misdemeanors to felonies. However, the court held that no pattern was established because the crimes “were neither temporally related nor similar in nature.” Id.

The sale of cocaine offenses and the robbery in this case are second-degree felonies, so the crimes did not escalate in degree, although the trial court did make a finding that the robbery was a violent crime. Nevertheless, the 1992 offenses were too remote and the temporal relationship of the other offenses to this charge was not clearly established. Nor can it be said that the crimes were similar in nature. See, e.g., Lorenzana v. State, 685 So.2d 978 (Fla. 4th DCA 1997). The State’s proof failed to establish a pattern of escalating criminal conduct, and the trial court abused its discretion in so finding.

Accordingly, we vacate Mr. Harvey’s sentence and remand for resentencing within the guidelines. Because Mr. Harvey has already served over seven years for this offense, the trial court must order his release.

ALTENBERND and SALCINES, JJ., Concur.


author: CANADY, Judge. FULMER, Chief Judge,

text:
    Thomas ELWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-907.
    District Court of Appeal of Florida, Second District.
    April 25, 2007.
    James Marion Moorman, Public Defender, and James C. Banks, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Thomas Elwell appeals his conviction for attempted lewd and lascivious molestation. We affirm his conviction but write to address Elwell’s argument that the trial court made insufficient factual findings in ruling that child-hearsay testimony was admissible. Because Elwell failed to make a contemporaneous objection, we conclude that this issue is unpreserved.

I.Background

Elwell was charged with lewd and lascivious molestation. The alleged victim was the eleven-year-old nephew of a friend of Elwell. Prior to trial, the State filed a notice of intent to introduce child-hearsay statements and the defense filed a motion to strike the notice. The trial court held a hearing on the issue. At the hearing, the victim testified to the events surrounding the offense and an investigating officer testified regarding the victim’s statements to him. At a continued hearing held the day before trial, the State introduced the victim’s grandfather, who testified regarding statements made to him by the victim the morning after the offense.

At the close of the pretrial hearing, the trial court ruled that the officer’s statements were inadmissible but that the grandfather’s statements were admissible: “I agree with [defense counsel] about the officer. I don’t think I’ll let his testimony in. But I believe everything [the grandfather] testified to today is admissible and relevant, and it will come in.” The trial court made no further findings. After the trial court made its ruling at the conclusion of the pretrial hearing, the trial court asked if there was anything else and El-well’s counsel made no response. The proceedings then concluded. At no point in the pretrial or trial proceedings did Elwell offer an objection regarding the trial court’s findings.

At trial, the grandfather testified regarding the victim’s statements to him. The victim and the victim’s aunt, Elwell’s friend, also testified. The jury returned a guilty verdict for the lesser-included offense of attempted lewd and lascivious molestation. The trial court sentenced Elwell to thirty years’ imprisonment as a habitual violent felony offender.

II.Argument on Appeal

On appeal, Elwell argues that the trial court erred in failing to make the specific findings required by section 90.803(23), Florida Statutes (2003), before admitting the child-hearsay statements into evidence. Elwell also contends that the admission of the child-hearsay testimony was harmful error because it bolstered the credibility of the child victim.

The State responds that Elwell failed to preserve the specific objection he now makes. The State also argues that it makes no difference whether the trial court deems the hearsay statements to be reliable because Elwell had an opportunity to cross-examine the victim prior to trial.

III.Analysis

A. General Requirements Regarding Preservation of Error

Section 924.051, Florida Statutes (2003), which was originally adopted in 1996, provides in subsection (3):

An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.

(Emphasis added.) Preserved is defined to mean “that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” § 924.051(l)(b) (emphasis added).

Proper preservation thus involves these components:

First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” The purpose of this rule is to “placet 1 the trial judge on notice that error may have been committed, and provide[ ] him an opportunity to correct it at an early stage of the proceedings.”

Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (alterations in original) (citations omitted).

B. The Case Law Regarding the Preservation of Objections Concerning the Sufficiency of Findings Under Section 90.803(23)

This court has held that a defendant must object to the sufficiency of the trial court’s findings regarding the admissibility of child-hearsay statements in order to raise the legal error on appeal. See Poukner v. State, 556 So.2d 1231, 1232 (Fla. 2d DCA 1990) (“Poukner contends that the trial court erred in admitting the hearsay statements of the child victims because [it] failed to make the specific findings required in section 90.803(23), Florida Statutes (1985). This issue was not preserved for our review as no objection was made when the trial court found the statements admissible.”); Stone v. State, 547 So.2d 657, 660 (Fla. 2d DCA 1989) (“[DJefense counsel did not object to the sufficiency of the trial court’s findings. Except in cases of fundamental error, this court will not consider an issue unless it was specifically raised as the legal basis for the objection in the trial court.”)

In Hopkins v. State, 632 So.2d 1372 (Fla.1994), Hopkins challenged both the sufficiency of the factual findings under section 92.54, Florida Statutes (1989) (the statute allowing a child to testify outside of the courtroom after the trial court has made specific findings of fact) and the sufficiency of the factual findings under section 90.803(23), Florida Statutes (1989). Prior to the child’s testimony, Hopkins objected to the child’s being permitted to testify outside the presence of the jury and the defendant. Id. at 1375. The court held that “[although the objection did not specifically address the sufficiency of the factual findings under section 92.54, it properly raised the issue of Hopkins’ constitutional right ‘to be confronted with the witnesses against him.’ ” Id. (quoting Amend. VI, U.S. Const.); Fla. R.App. P. 9.800(n). The court also held that “the factual findings required by section 92.54 are necessarily related to the constitutional right to confrontation.” Id. The court concluded that “defense counsel’s ‘confrontation rights’ objection necessarily called into question whether the statutory procedures had been followed” and that the issue was preserved for appeal. Id. at 1375-76.

As for the findings under section 90.803(23), Hopkins objected at the close of the pretrial hearing “to the admissibility of the hearsay statements, arguing that there was no showing of reliability.” 632 So.2d at 1376. The trial court then made its findings and conclusions — which were insufficient — and proceeded with the trial. “During the testimony of the first witness, defense counsel objected three times to the admission of the hearsay statements. At one point, defense counsel asked for a continuing objection, which the trial court denied.” Id. The supreme court held:

Although it would have been preferable for defense counsel to object each time the hearsay testimony was introduced, we find that the issue was preserved for appeal. The trial court was put on notice of the potential error by the pretrial hearing and by defense counsel’s request for a continuing objection during trial. As discussed above, defense counsel’s objection to the reliability of the evidence necessarily encompassed the sufficiency of the judge’s findings as to that reliability.

Id. (emphasis added).

After Hopkins, the Florida Supreme Court decided State v. Townsend, 635 So.2d 949 (Fla.1994). In Townsend, the court held that the trial court did not satisfy the requirements of section 90.803(23) because the trial court did not provide an explanation or factual findings to support its conclusion that the child-hearsay statements were reliable. 635 So.2d at 958. However, the court indicated that an objection to the lack of sufficient findings is necessary in order to raise the issue on appeal: “It is questionable ... whether Townsend properly preserved ... issues, such as the failure of the trial judge to make specific factual findings regarding the reliability of the child’s statements.” Id. at 959. The court recognized that

the failure of a trial judge to make sufficient findings under the statute, in and of itself, does not constitute fundamental error. Consequently, were we not reviewing these errors as a whole, we might find that some of the errors to which no objection was made were procedurally barred. When, however, we consider the errors in this case as a whole, we must conclude that Townsend was denied the fundamental right to due process and the right to a fair trial.

Id. at 959-60 (citations omitted). The supreme court cited Jones v. State, 610 So.2d 105, 105-06 (Fla. 3d DCA 1992), which held that the argument that factual findings under section 90.803(23) “should have been made in more detail” was “not preserved for appellate review, because no contemporaneous objection was made to the sufficiency of the trial court’s findings.” Jones, in turn, cited this court’s decisions in Stone, 547 So.2d 657, and Poukner, 556 So.2d 1231.

In Rios v. State, 791 So.2d 1208, 1209 (Fla. 5th DCA 2001), the Fifth District, citing Townsend and Jones, held that a defendant who argued “that the trial court erred in admitting the child hearsay statements” had “failed to preserve this argument for appeal” because “he failed to make contemporaneous objections to the trial court’s findings.”

Since Hopkins and Townsend, however, some decisions of other districts have held that objections or challenges to the child-hearsay statements made prior to the trial court’s rulings are sufficient to preserve for appeal the issue of the sufficiency of the trial court’s findings.

In Heuss v. State, 660 So.2d 1052, 1056 (Fla. 4th DCA 1995), the State argued “that appellant did not preserve this issue for review because he failed to object to the lack of specific findings concerning the reliability of the children’s hearsay statements.” The court noted that “[t]he record, however, contains numerous objections by appellant to the admission of these statements.” . Id.

In pretrial motions, appellant challenged the trustworthiness and reliability of the child-victims’ statements based upon possible contamination of the children’s statements as a result of'discussions with their parents and other children; leading questions by Child A’s mother and the deputies; untimeliness of the statements in relation to the events; and the lack of spontaneity of the children’s statements. We hold that appellant adequately preserved this issue for appellate review.

Id. (emphasis added).

In In re R.L.R., 647 So.2d 251, 252 (Fla. 1st DCA 1995), the father objected during an adjudicatory hearing on a petition,for termination of parental rights to the admission of child-hearsay statements on the basis of section 90.803(23). The trial court reserved ruling on the statements and later ruled them to be admissible. On appeal, the father challenged the trial court’s findings as insufficient under section 90.803(23). Id. at 253. The agency argued that the father had failed to object to the sufficiency of the trial court’s findings and therefore the issue had not been preserved for review. Id. Relying on Hopkins, the court held that counsel’s objection made prior to the trial court’s ruling encompassed the sufficiency of the judge’s findings. Id.

Other decisions have held the issue to be preserved based on objections made after the trial court ruled on the admissibility of the statements.

In Mathis v. State, 682 So.2d 175, 177 (Fla. 1st DCA 1996), the appellant “immediately objected” to the trial court’s findings regarding the reliability of the child-hearsay statements. Prior to the introduction of the child-hearsay statements at trial, the “trial court acknowledged the previous objection of appellant’s counsel, and indicated that it would treat the objection as a continuing one.” Id. The First District found “unpersuasive the state’s argument that this issue was not preserved for appellate review.” Id. at 178. Based on Hopkins and In re R.L.R., the court held that the trial court was put on notice of the potential error. Id. “It seems to us relatively clear from a reading of the relevant portions of the record that both the state and the trial court understood that the objection made by appellant’s counsel went to the legal sufficiency of the trial court’s findings.” Id.

In Womack v. State, 855 So.2d 1236, 1237 (Fla. 1st DCA 2003), the parties agreed “that the trial court did not make specific findings of fact on the record as required by section 90.803(23)(e)” but the State argued that “there is not reversible error because ... appellant’s general objection to the child hearsay statements failed to preserve this issue for appellate review.” Relying on Hopkins and In re R.L.R., the court held “that appellant’s general objection, recognized by the trial court as a continuing objection, preserved the issue for appeal.” Womack, 855 So.2d at 1237. It is not clear from the opinion when appellant raised the “general objection.”

C. Application of the Law to the Instant Case

At the hearing on the child-hearsay statements, Elwell argued that the child did not make the statements at the first available opportunity and that the child may have had a motive to make his story up. These arguments relate to the reliability of the child-hearsay statements. See Townsend, 635 So.2d at 957-58 (holding that in determining whether the statements are trustworthy and reliable, the trial court may consider, among other things, “whether the statement was made at the first available opportunity following the alleged incident” and “the motive or lack thereof to fabricate the statement”).

Prior to raising the issue in this appeal, Elwell never raised any objection concerning the sufficiency of the trial court’s findings under section 90.803(23). Elwell’s objection to the reliability of the child-hearsay statements was not sufficient to preserve the specific issue that he now raises on appeal. See Townsend, 635 So.2d at 958. The trial court was never placed on notice of any error with respect to its findings and thus was never given an opportunity to correct the deficiency in the findings. See Harrell, 894 So.2d at 940. Accordingly, under the general rules governing preservation of error, the issue of the sufficiency of the findings was clearly unpreserved.

We conclude that Hopkins is distinguishable from the instant case because the holding in Hopkins was predicated on the defendant’s assertion of his confrontation rights. The Hopkins court first addressed the trial court’s lack of findings under section 92.54 and held that the defendant’s confrontation clause objection encompassed the trial court’s lack of findings as required under the statutory procedures intended to protect the defendant’s right to confrontation. 632 So.2d at 1375. The court then applied this same reasoning to the section 90.803(23) issue. The court noted that “[f]ailure to make specific findings” under section 90.803(23) “implicates the defendant’s constitutional right to confrontation” and that “the constitutional right to face-to-face confrontation is involved in both evidentiary issues raised in this case.” Id. at 1377.

Here, Elwell did not raise an issue regarding his confrontation rights. Because the victim testified at trial, thus giving Elwell an opportunity to cross-examine him, Elwell’s confrontation rights were not implicated. See Somervell v. State, 883 So.2d 836, 837 (Fla. 5th DCA 2004) (holding that the defendant’s confrontation rights were not implicated by the introduction of a child’s videotaped statement because the child testified, giving the defendant “a full and complete opportunity to confront and cross-examine him”).

We decline to adopt the view that Hopkins eliminates in all cases involving objections to child hearsay the requirement that a defendant preserve the specific issue he seeks to argue on appeal. We also note that Hopkins was decided prior to the adoption of section 924.051, with its exacting requirements regarding the preservation of error.

IV. Conclusion

Elwell did not properly preserve for appeal his argument that the trial court failed to make specific factual findings as required by section 90.803(23). In addition, “the failure of a trial judge to make sufficient findings under the statute, in and of itself, does not constitute fundamental error.” Townsend, 635 So.2d at 959.

Affirmed.

DAVIS, J., Concurs.

FULMER, C.J., Concurs specially.

FULMER, Chief Judge,

Specially concurring.

I agree that Elwell’s conviction should be affirmed. However, contrary to the majority view, it is my view that under the reasoning in Hopkins v. State, 632 So.2d 1372 (Fla.1994), Elwell’s challenge to the admission of child-hearsay statements was preserved for review. Nevertheless, having reviewed the testimony presented at trial, I must conclude that the trial court’s error in admitting the child-hearsay statement without first making sufficient findings of fact as required by section 90.803(23), Florida Statutes (2003), is harmless beyond a reasonable doubt.

      . An out-of-court statement of a child "with a physical, mental, emotional, or developmental age of 11 or less" describing an act of abuse is admissible in any proceeding if:
      1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate....
      § 90.803(23)(a). The trial court is required to "make specific findings of fact, on the record, as to the basis for its ruling.” § 90.803(23)(c).


text:
    In re COMMITMENT OF James J. STEEN. James J. Steen, a/k/a James Harrell Steen, Appellant, v. State of Florida, Appellee.
    No. 2D05-4240.
    District Court of Appeal of Florida, Second District.
    April 25, 2007.
    James Marion Moorman, Public Defender, and Jeanine Cohen, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Lee, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

James Steen appeals an order declaring him a sexually violent predator and committing him to the custody of the Department of Children and Family Services. Mr. Steen’s argument that the jury was required to make a finding regarding his lack of volitional control has been specifically rejected by the Florida Supreme Court. See State v. White, 891 So.2d 502 (Fla.2004). Further, Dr. Swan’s testimony regarding her interpretation of the definition of the term “likely” in section 394.912(10), Florida Statutes (2004), appears to comply with the Florida Supreme Court’s recent explanation of the statutory term in Hale v. State, 891 So.2d 517 (Fla.2004). We therefore affirm the order on appeal.

Affirmed.

ALTENBERND, NORTHCUTT, and LaROSE, JJ., concur.


author: VILLANTI, Judge.

text:
    Melbra BREWER, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-3862.
    District Court of Appeal of Florida, Second District.
    April 25, 2007.

      Melbra Brewer, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Respondent.
   VILLANTI, Judge.

Melbra Brewer, in her petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raised six grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds raised therein, and we deny, without discussion, the remaining grounds.

Brewer was convicted, after jury trial, of aggravated battery. The judgment and sentence were affirmed on direct appeal. Brewer v. State, 908 So.2d 1065 (Fla. 2d DCA 2005) (table decision). At trial, Brewer testified that the victim attacked her with a stick and a broken bottle and that she was acting in self-defense when she stabbed the victim with a knife. Two other witnesses testified for the defense that they saw the victim attack Brewer first. The victim’s testimony was that Brewer attacked her with a knife and she fought back using only her fists. None of the other State’s witnesses observed the actual confrontation between Brewer and the victim.

Brewer’s defense at trial was the justifiable use of deadly force. However, the trial court instructed the jury that “the use of force likely to cause death or great bodily harm is not justified if you find the Defendant was attempting to commit, committing or escaping after the commission of an aggravated battery.” Brewer contends, and we agree, that appellate counsel was ineffective for failing to argue that the above “circular” self-defense instruction constitutes fundamental error under the facts of this case. See Hernandez v. State, 884 So.2d 281 (Fla. 2d DCA 2004); York v. State, 891 So.2d 569 (Fla. 2d DCA 2004). Both Hernandez and York were issued months before the initial brief was filed in Brewer. Both cases held that appellate counsel was ineffective in failing to argue that the exact same instruction as the one given in Brewer constituted fundamental error under the facts of those cases. Because a new appeal would be redundant in this case, we reverse the conviction, vacate the sentence, and direct that Brewer be retried. See Hernandez, 884 So.2d at 282 (citing Johnson v. Wainwright, 498 So.2d 938, 939 (Fla.1986)).

Petition granted in part and denied in part.

SILBERMAN and WALLACE, JJ., Concur.

      . We do note, however, that the trial court erred in denying Brewer the opportunity to cross-examine the investigating detective regarding the entirety of Brewer’s statement to him on the incident in question. See Christopher v. State, 583 So.2d 642, 646 (Fla.1991) (citing Louette v. State, 152 Fla. 495, 12 So.2d 168 (1943)) (holding that "[w]hen the state offers in evidence a part of a confession or admission against interest, the defendant is entitled to bring out on cross-examination the entire confession or admission”).


text:
    M.C.C., Mother of S.C., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D07-78.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2007.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee, Department of Children and Families.
    Timothy A. Straus of Moyer, Straus & Patel, PA., Altamonte Springs, for Appel-lee, Father, J.C.
   PER CURIAM.

AFFIRMED. See A.J. v. K.A.O., 951 So.2d 30 (Fla. 5th DCA 2007).

ORFINGER, MONACO and EVANDER, JJ., concur.


text:
    In re Philip LAWRENCE.
    No. 2006-B-2860.
    Supreme Court of Louisiana.
    April 11, 2007.
    Charles Bennett Plattsmier, Baton Rouge, for Applicant.
    Philip Lawrence, New Orleans, for Respondent.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

PRIOR DISCIPLINARY HISTORY

Prior to addressing the instant charges, we find it helpful to review respondent’s prior discipline. Respondent was admitted to the bar in 1996. In 2000, the ODC filed formal charges against respondent based on misconduct which occurred between 1998 and 1999. We determined respondent violated the Rules of Professional Conduct by failing to communicate with two clients and failing to safeguard the property of another client. We suspended respondent from the practice of law for a period of three months, but deferred that suspension in its entirety and respondent was placed on probation for a period of one year. In re: Lawrence, 02-2791 (La.1/31/03), 841 So.2d 699 (“Lawrence I”).

UNDERLYING FACTS AND PROCEDURAL HISTORY

Count I — The Tyson Matter

|2In February 2003, Lugene Tyson retained respondent to represent him in a child custody and support case. Mr. Tyson paid respondent a fee of $1,000. Approximately one month later, respondent filed a pleading on behalf of Mr. Tyson entitled “Petition for Custody, Termination of Wage Assignment and/or Garnishment and Return of Child Support Payments.”

Initially, Mr. Tyson was able to communicate with respondent; however, as time went on, Mr. Tyson had increasing difficulty contacting respondent and believed respondent was avoiding his calls. In October 2003, while the case was ongoing, Mr. Tyson received a copy of a motion filed by respondent in which he sought to withdraw from representing Mr. Tyson. As a result, Mr. Tyson was forced to handle the case on his own because he could not afford new counsel.

The ODC alleges that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 1.4 (failure to communicate with a client) of the Rules of Professional Conduct.

Count II — The Wiltz Matter

In August 2002, Dinah Wiltz retained respondent to represent her in a child support case, paying him $500. After retaining respondent, Ms. Wiltz had difficulty contacting respondent. In particular, she attempted to call him at least twenty times from her cell phone number, but could not reach him. She finally reached him after calling from a different phone number, at which time he advised her he was working on the case; however, he did not keep in contact with her. Ms. Wiltz eventually learned from court personnel (not from respondent) that her case was set for hearing.

| ¡¡The ODC alleges that respondent’s conduct violated Rule 1.4 of the Rules of Professional Conduct.

Count III — The Hammonds Matter

In November 2002, Lori Ann Ham-monds retained respondent to obtain a protective order on her behalf. On the day that Ms. Hammonds’ rule for a protective order was set for hearing, respondent arrived ninety minutes late for court. Thereafter, Ms. Hammonds had difficulty communicating with respondent in an effort to determine whether the protective order had been served on the defendant. Ms. Hammonds was finally able to locate the defendant herself, and she notified respondent of the address for service. The defendant was served and ordered to appear for a hearing on December 13, 2002; however, on that date, respondent failed to appear. Ms. Hammonds unsuccessfully tried to locate respondent and was forced to represent herself at the hearing pro se. Later the same day, respondent met with Ms. Hammonds and explained that he had not been in court because he had been checking on service. Following that meeting, Ms. Hammonds once again had difficulty communicating with respondent. On numerous occasions, Ms. Hammonds tried unsuccessfully to obtain updates from respondent concerning the status of the protective order matter, and when she was able to speak with him, he gave her conflicting accounts of what was happening in the case. The last communication Ms. Hammonds received from respondent was a motion to withdraw.

The ODC alleges that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

| ¿Count TV — The Rankin Matter

In August 2002, Denise Rankin retained respondent for the sum of $500 to represent her minor son, Christopher, who had been arrested for aggravated burglary. At that time, respondent promised Ms. Rankin he would meet with Christopher, then call her and discuss what could be done about a bond reduction. However, respondent did not meet with Christopher that day, nor did he call Ms. Rankin. Over the next week, Ms. Rankin tried to reach respondent by telephone, but despite numerous attempts and voice mail messages, she was unsuccessful in speaking with him. Respondent later billed Ms. Rankin for several client telephone consultations, which she denied ever occurred.

The ODC alleges that respondent’s conduct violated Rules 1.4 and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Count V — The Summers Matter

In June 2002, William and Georgana Summers retained respondent to file bankruptcy on their behalf and to contest a traffic ticket issued to Mr. Summers. Mr. and Mrs. Summers paid respondent a total of $700 in fees and costs. One week later, respondent told Mrs. Summers that the traffic ticket was taken care of and that everything was fine. In mid-July, respondent told his clients they would soon be receiving a letter from the bankruptcy court. In August, Mrs. Summers tried to reach respondent on several occasions, but she was unsuccessful. In September, Mrs. Summers checked with the bankruptcy court and was told nothing had been filed under their names. Concerned, Mrs. Summers contacted the traffic court regarding the ticket, and was told that nothing had been done in that matter and that an|fiattachment was scheduled to be issued on September 17th for Mr. Summers’ arrest. After making more unsuccessful attempts to reach respondent, Mr. and Mrs. Summers discharged him on September 16, 2002.

The ODC alleges that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Count VI-The Richardson Matter

On July 31, 2002, Clifton Richardson retained respondent to handle a bankruptcy matter, paying him $300. Respondent appeared on Mr. Richardson’s behalf at an August 6, 2002 hearing in the case, but thereafter he failed to communicate with Mr. Richardson regarding the preparation of a written judgment. Mr. Richardson made numerous attempts to reach respondent between August 7th and August 12th, but respondent did not return Mr. Richardson’s telephone calls and messages, nor was he available at his office when Mr. Richardson went there in an attempt to meet with him in person. Concerned that respondent might not prepare the bankruptcy judgment in a timely fashion, Mr. Richardson terminated respondent’s representation by letter dated August 12, 2002 and prepared the judgment himself. Mr. Richardson subsequently received a billing statement from respondent, which reflected a telephone call that he denied ever occurred.

The ODC alleges that respondent’s conduct violated Rules 1.4 and 8.4(c) of the Rules of Professional Conduct.

Count VII — The Shoemaker Matter

In March 2001, Byron Shoemaker, who was in the U.S. Navy, retained respondent for the sum of $1,500 to represent him in connection with a disciplinary | (¡hearing before a military review board. On the night before the hearing, respondent informed Mr. Shoemaker that he would be unable to appear at the hearing because his girlfriend was having a medical procedure. Respondent further indicated that he had left messages to this effect with the military board and assured Mr. Shoemaker that the hearing would not proceed in his absence. Despite respondent’s assurances, the hearing was not continued and took place as scheduled. Mr. Shoemaker was represented by appointed military counsel at the hearing and was less than honorably discharged from the Navy.

The ODC alleges that respondent’s conduct violated Rule 1.3 of the Rules of Professional Conduct.

Count VIII — The Blackwell Matter

Reginald Blackwell, a resident of New York, received a notice indicating that he owed past-due child support in Louisiana. In January 2001, Mr. Blackwell retained respondent, paying him $500 to determine if the amount of the alleged arrearages was correct. Over the next few months, Mr. Blackwell called respondent several times seeking an update on his progress on the case, only to be told each time that respondent had not been able to reach anyone at the child support enforcement division. By May 2001, when respondent had not obtained any more information than Mr. Blackwell himself had already obtained, Mr. Blackwell terminated the representation. Ultimately, the child support arrearage was made executory and Mr. Blackwell’s wages were garnished.

The ODC alleges that respondent’s conduct violated Rule 3.2 (failure to make reasonable efforts to expedite litigation) of the Rules of Professional Conduct.

17Count IX — The Johnson Matter

In March 2000, Shirley Shipman Johnson retained respondent to assist her in developing a book and movie deal based upon the life story of her father, Sergeant Alvin Shipman, a World War II veteran. Ms. Johnson agreed to pay respondent a 15% contingency fee based upon the successful development and sale of Sergeant Shipman’s life story. According to Ms. Johnson, respondent did not advise her to obtain independent counsel before she entered into the contingency fee agreement with him.

Without the consent of Ms. Johnson, respondent applied for a copyright for the book about Sergeant Shipman and included his name in the copyright application as an author of the book. Ms. Johnson denies that respondent helped to write the book. The ODC alleges that respondent’s conduct violated Rule 1.8 (engaging in a conflict of interest) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed formal charges against respondent. Respondent filed an answer, and the matter proceeded to a hearing before the hearing committee.

Hearing Committee Recommendation

In the Tyson matter, the committee determined respondent was dilatory in the manner in which he handled Mr. Tyson’s case, but did not find the ODC proved by clear and convincing evidence that respondent violated Rule 1.3. However, the committee agreed respondent violated Rule 1.4 by failing to communicate with Mr. | sTyson, noting that a client should not have to disguise his identity in order to have his attorney answer the telephone.

In the Wiltz matter, the hearing committee made a finding of fact that respondent was screening his telephone calls and avoiding' Ms. Wiltz. The committee observed that Ms. Wiltz should have learned from respondent, not court personnel, when to appear in court. Accordingly, the committee found that respondent failed to communicate with his client in violation of Rule 1.4.

In the Hammonds matter, the committee found it was undisputed respondent was late for a court appearance in Ms. Hammonds’ case. The committee found such conduct to be unprofessional; however, considering that Ms. Hammonds did not testify at the disciplinary hearing, the committee determined the ODC did not prove by clear and convincing evidence that respondent violated the Rules of Professional Conduct.

In the Rankin matter, the hearing committee concluded that respondent failed to take immediate action to secure Christopher’s release from jail and failed to communicate timely with either Ms. Rankin or Christopher, causing actual harm to Christopher. Based on this reasoning, the committee found that respondent violated Rule 1.4 of the Rules of Professional Conduct. The committee further found that although respondent’s billing practices were “sloppy,” he did not have an intent to deceive, and thus the committee found no violation of Rule 8.4(c).

In the Summers matter, the hearing committee found that respondent told his clients that he had resolved the traffic ticket when, in fact, he had not. Additionally, it determined he delayed in filing their bankruptcy proceeding. Considering these findings, it concluded he violated Rule 1.3 by neglecting his clients’ legal matters. It further found he failed to communicate with his clients or to respond to their ^telephone calls, in violation of Rule 1.4. The committee also noted respondent’s misconduct caused actual harm to his clients by delaying their bankruptcy and by causing an attachment to be issued for Mr. Summers’ arrest on the traffic ticket.

In the Shoemaker matter, the hearing committee made a factual finding that respondent failed to appear at the disciplinary hearing and failed to take appropriate precautions to ensure that his client was represented, all in violation of Rule 1.3. It further determined respondent’s misconduct caused actual harm to Mr. Shoemaker, who was tried without benefit of a defense by knowledgeable counsel.

In the Blackwell matter, the hearing committee found that respondent took action as requested by Mr. Blackwell and the delays in the matter were occasioned in large part by normal delays inherent in the system. Accordingly, the committee found no violation by respondent of Rule 3.2.

In the Johnson matter, the hearing committee found that the ODC failed to prove by clear and convincing evidence that respondent violated Rule 1.8. It found Ms. Johnson did not deny understanding the terms of the agreement and she admitted having other counsel. It further noted that no evidence was introduced to establish that Ms. Johnson was denied the opportunity to seek the advice of another attorney before she signed the agreement with respondent.

In summary, the committee found that respondent failed to communicate with his clients in the Tyson, Wiltz, Rankin, and Summers matters, and neglected his clients’ legal matters in the Summers and Shoemaker matters. The committee found no violations in the Hammonds, Richardson, Blackwell, and Johnson matters.

As aggravating factors, the committee recognized respondent’s prior disciplinary record in Lawrence I, multiple offenses, and vulnerability of two of the victims, Christopher Rankin and Byron Shoemaker. The committee also commented | inthat respondent refused to acknowledge the wrongful nature of his conduct, and demonstrated a troubling lack of insight into the allegations. The mitigating factors found by the committee include the absence of a dishonest or selfish motive, personal or emotional problems, timely good faith effort to make restitution or to rectify the consequences of the misconduct, and a cooperative attitude toward the disciplinary proceedings.

Under the circumstances of this case, the committee recommended that respondent be suspended from the practice of law for eighteen months.

The ODC filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

The disciplinary board accepted the hearing committee’s factual findings in the Tyson, Wiltz, Hammond, Rankin, Summers, Shoemaker, and Johnson matters. However, with regard to the Richardson matter, the board determined the committee was clearly wrong in determining that there was no violation of Rule 1.4. To the contrary, the board found Mr. Richardson’s testimony constituted clear and convincing evidence that respondent failed to timely communicate with him. Finally, as to Count IX, the board found respondent’s contingent fee agreement with Ms. Johnson was “troubling” as it relates to a conflict of interest involving a business transaction with a • client; nevertheless, the board concluded that the committee’s factual determinations in this regard are not manifestly erroneous.

|nIn summary, the board determined that respondent violated Rule 1.4 by failing to communicate with his clients in the Tyson, Wife, Rankin, Summers, and Richardson matters. It pointed out these clients testified about their repeated efforts to contact respondent by phone, and some attempted to find him at his office, but to no avail. The board also determined respondent neglected the Summers’ traffic ticket and bankruptcy matters and failed to appear with Mr. Shoemaker before the military tribunal, in violation of Rule 1.3. However, the board concluded that respondent did not violate the Rules of Professional Conduct as charged in the Hammonds, Blackwell, and Johnson matters.

The board determined thát respondent knowingly violated duties owed to his clients and caused actual- harm to them. Under the ABA’s Standards for Imposing Lawyer Sanctions, it found the baseline sanction for respondent’s misconduct is suspension.

The board found the record supports the following mitigating factors: absence of a dishonest or selfish motive, personal or emotional problems, and a cooperative attitude toward the disciplinary proceeding. The board recognized the following aggravating factors: prior disciplinary record, a pattern of misconduct, multiple offenses, and vulnerability of the victims.

Considering the number of clients harmed in the instant case, the board recommended that respondent be suspended from the practice of law for eighteen months and be assessed with all costs of these proceedings.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument ' pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

| ^DISCUSSION

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

Based on our independent review, we determine the hearing committee’s factual findings, as modified by the disciplinary board, are supported by the record. Accordingly, we conclude respondent violated Rule 1.3 by neglecting the Summers and Shoemaker matters and violated Rule 1.4 by failing to communicate with his clients in the Tyson, Wife, Rankin, Summers, and Richardson matters.

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

|1sThe genesis of most of respondent’s misconduct in the instant case, as well as his earlier misconduct in Lawrence I, is his repeated and willful refusal to keep his clients reasonably informed about the status of their legal matters. As we explained in Louisiana State Bar Ass’n v. St Romain, 560 So.2d 820, 824 (La.1990), “[pjroper communication with clients is essential to maintain public confidence in the profession.”

We are particularly disturbed by the testimony of several clients in this matter who testified that they were forced to call respondent from different telephone numbers in order to get him to answer their calls. There is simply no excuse for such conduct by a member of the bar of this state.

The baseline'sanction for respondent’s misconduct is a suspension from the practice of law. Several aggravating factors are present, including respondent’s prior disciplinary record, a pattern of misconduct, multiple offenses, and vulnerability of the victims. In mitigation, we recognize the absence of a dishonest or selfish motive, personal or emotional problems, and a cooperative attitude toward the disciplinary proceeding.

Considering all these factors, we find the appropriate discipline for respondent’s miscondhct is an eighteen-month suspension from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record,' briefs, and oral argument, it is ordered that Philip Lawrence, Louisiana Bar Roll number 22705, be and he hereby [uis suspended from the practice of law for a period of eighteen months. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

TRAYLOR, J., dissents and would impose greater penalty.

      . Mr. Tyson testified he had to use a neighbor's telephone "so [respondent] did not recognize my number and maybe he would answer.”

      . The ODC also alleged a violation of Rule 1.5(c) relating to respondent’s failure to obtain a contingent fee agreement in connection with a personal injury matter Ms. Hammonds wanted him to handle; however, this charge was dismissed by the ODC during the hearing.

      . Respondent, who is in the United States Marines Corps Reserves, advertizes that he specializes in military law.

      . The committee found that respondent was deployed as a member of the National Guard in the midst of some of his client representations and that his girlfriend’s medical condition led to some inappropriate behaviors in the Shoemaker matter (Count VII).

      . Respondent refunded some or all of the attorney’s fees paid by Mr. and Mrs. Summers, Mr. Shoemaker, and Mr. Blackwell. Furthermore, following the disciplinary hearing, respondent submitted an affidavit in support of Mr. Shoemaker’s appeal of his dismissal from the Navy.

      . We also note that respondent has not disputed any of the factual findings and confines his objection to the question of whether the board’s recommendation of discipline is appropriate.

      . In his testimony before the hearing committee, respondent made the rather remarkable assertion that his current clients were merely “picking up on” similar comments reported te this court’s opinion in Lawrence I. Like the hearing committee, we find no support whatsoever for such a theory.