source: Caselaw Access Project

author: WELLS, J.,

license: Public Domain

text:
    FLORIDA BOARD OF BAR EXAMINERS RE: W.F.H.
    No. SC04-185.
    Supreme Court of Florida.
    April 20, 2006.
    Rehearing Denied June 21, 2006.
    PARIENTE, C.J., and ANSTEAD, LEWIS and QUINCE, concur.
    WELLS, J., concurs in result only with an opinion, in which CANTERO and BELL, JJ., concur.
   WELLS, J.,

concurring in result only.

I concur only in this result. However, I believe that the Board erred and we erred in not making this decision at the time of W.F.H.’s first petition, rather than allowing W.F.H. to reapply when a reapplication was futile. I regret this for reasons of fundamental fairness.

CANTERO and BELL, JJ., concur.


author: PER CURIAM. WELLS, J.,

text:
    Inquiry Concerning a Judge, No. 02-466, re Judge John RENKE III.
    No. SC03-1846.
    Supreme Court of Florida.
    May 25, 2006.
    Rehearing Denied June 26, 2006.

      Honorable James R. Wolf, Chair, Tallahassee, Florida, Thomas C. MacDonald, Jr., General Counsel, Tampa, FL, Brooke S. Kennerly, Executive Director, Tallahassee, FL, Marvin E. Barkin, Marie Tomas-si, and Michael K. Green of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill and Mullís, P.A., Tampa, FL, for Florida Judicial Qualifications Commission, Petitioner.
    Scott K. Tozian and Gwendolyn H. Hin-kle of Smith, Tozian and Hinkle, P.A., Tampa, FL, for Judge Renke, Respondent.
   PER CURIAM.

We have for review the recommendation of the Judicial Qualifications Commission (JQC) that Circuit Judge John Renke III be disciplined for numerous violations of the Code of Judicial Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. As we explain below, given the flagrant misrepresentations made to the voting public during Judge Renke’s judicial campaign, coupled with the serious campaign financial misconduct and violations of law found by the JQC, we conclude that he is presently unfit to hold office and that removal from the bench is the only appropriate sanction in this case.

CHARGES

This case arose out of a series of charges filed against Judge John Renke by the JQC alleging that during his 2002 election campaign for the office of Circuit Court Judge for the Sixth Judicial Circuit, he committed certain acts in violation of Canon 7 of the Code of Judicial Conduct. The original Notice of Formal Charges was filed in October of 2003, and in April of 2004, the JQC entered its findings and recommendations of discipline. The JQC and Judge Renke presented a stipulation to this Court pursuant to article V, section 12 of the Florida Constitution and rule 6(j) of the Florida Judicial Qualifications Commission Rules, in which Judge Renke admitted to the conduct alleged and did not contest either the findings of guilt or the recommendation of discipline. At that time, he also waived a plenary hearing before the Hearing Panel of the JQC and oral argument before this Court.

In July of 2004, we determined that the JQC’s recommended disposition should be rejected as too lenient and directed the JQC to conduct further proceedings on the merits of the case. The JQC then amended the charges, adding an additional count concerning an alleged improper $95,800 contribution to the Renke campaign from Judge Renke’s father in violation of sections 106.08(l)(a), 106.08(5) and 106.19(a) and (b), Florida Statutes (2002). This campaign financial charge became count 8 of the Second Amended Notice of Formal Charges of August 24, 2005. Before trial, the JQC’s charging document asserted:

1.During the campaign, in violation of Canon 7 A(3)(a) and Canon 7 A(3)(d)(iii) you knowingly and purposefully misrepresented in a campaign brochure ... that you were an incumbent judge by describing yourself as John Renke, a Judge With Our Values when in fact you were not at that time a sitting or incumbent judge.
2. During the campaign, in violation of Canon 7 A(3)(a) and Canon 7 A(3)(d)(iii), you knowingly and purposefully misrepresented in the same brochure ... your holding of an office in the Southwest Florida Water Management District by running a picture of you with a nameplate that says “John K. Renke, III Chair” beneath a Southwest Florida Water Management District banner, when you were not in fact the Chairman of the Southwest Florida Water Management District.
3. During the campaign, in violation of Canon 7 A(3)(a) and Canon 7 A(3)(d)(iii), you knowingly and purposefully misrepresented in the same brochure ... your endorsement by the Clearwater firefighters by asserting that you were “supported by our areas bravest: John with Kevin Bowler and the Clearwater firefighters” when you did not then have an endorsement from any group of or any group representing the Clearwater firefighters.
4. During the campaign, in violation of Canon 7 A(3)(a) and Canon 7 A(3)(d)(iii), you knowingly and purposefully misrepresented in the same brochure ... your judicial experience when you described yourself as having “real judicial experience as a hearing officer in hearing appeals from administrative law judges,” when your actual participation was limited to one instance where you acted as a hearing officer and to other instances where you were sitting as a board member of an administrative agency.
5. During the campaign, in violation of Canon 7 A(3)(a) and Canon 7 A(3)(d)(iii), you knowingly and purposefully misrepresented your endorsement by Pinellas County public officials in a campaign flyer ... when you listed a number of persons, including Paul Be-dinghaus, Gail Hebert, John Milford, George Jirotka and Nancy Riley as such, when they in fact were not Pinellas County public officials but instead officials of a private, partisan political organization to wit, the Pinellas County Republican Party.
6. During the campaign in violation of Canon 7 A(3)(a) and Canon 7 A(3)(d)(iii), you knowingly and purposefully misrepresented your experience as a practicing lawyer and thus your qualifications to be a circuit court judge. In the Candidate Reply you authored which was published by and in the St. Peters-burg Times, you represented that you had “almost eight years of experience handling complex civil trials in many areas.” This was knowingly false and misleading because in fact you had little or no actual trial or courtroom experience.
7. During the campaign in violation of Canon 7 A(3)(a) and Canon 7(A)(3)(d)(iii), you knowingly and purposefully misrepresented your experience as a practicing lawyer and thus your qualifications to be a circuit court judge, as well as your opponents experience, by asserting in a piece of campaign literature that your opponent lacked “the kind of broad experience that best prepares someone to serve as a Circuit Court Judge” and represented to the voting public that the voters would be “better served by an attorney [like you] who has many years of broad civil trial experience.” This was knowingly false because your opponent had far more experience as a lawyer and in the courtroom and in fact you had little or no actual trial or courtroom experience.
8. During the campaign, in violation of Canon 2, Canon 2 A and Canon 7 A(3)(a) and §§ 106.08(l)(a), 106.08(5) and 106.19(a) and (b), Florida Statutes, your campaign knowingly and purposefully accepted a series of “loans” totaling $95,800 purportedly made by you to the campaign which were reported as such, but in fact these monies, in whole or in substantial part, were not your own legitimately earned funds but were in truth contributions to your campaign from John Renke II (or his law firm) far in excess of the $500 per person limitation on such contributions imposed by controlling law.
9.During the campaign, in violation of Canon 7 A(3)(a) and Can on 7 A(3)(d)(iii), you made a deliberate effort to misrepresent your qualifications for office and those of your opponent as detailed in Charges 1 through 7, supra, which cumulative misconduct constitutes a pattern and practice unbecoming a candidate for and lacking the dignity appropriate to judicial office, which had the effect of bringing the judiciary into disrepute.

Subsequently, after a final hearing before an adjudicatory panel, the JQC found Judge Renke guilty on counts 1, 2, 3, 6, 7, 8 and 9; however, the JQC did not find Judge Renke guilty of counts 4 or 5. Based on these findings, the JQC recommended a $40,000 fine, a public reprimand by this Court, and that Judge Renke be responsible for the costs of these proceedings.

FINDINGS OF FACT

In judicial disciplinary proceedings, this Court reviews the findings of the JQC to determine if they are supported by clear and convincing evidence and reviews the recommendation of discipline to determine whether it should be approved or whether other discipline is appropriate. In re Andrews, 875 So.2d 441, 442 (Fla.2004). As we have noted before, the clear and convincing evidence standard

requires more proof than a “preponderance of the evidence” but less than “beyond and to the exclusion of a reasonable doubt.” If the findings meet this intermediate standard, then they are of persuasive force and are given great weight by this Court. This is so because the JQC is in a position to evaluate the testimony and evidence firsthand. However, the ultimate power and responsibility in making a determination rests with this Court.

In re Graziano, 696 So.2d 744, 753 (Fla. 1997) (citations omitted) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)). After extensive review of the record and the evidence submitted by both sides, we find an abundance of competent evidence to support the JQC’s conclusions that the charges found proven were established by clear and convincing evidence.

Counts 1, 2 and 3

The basis of these charges is founded upon various statements made in one of Judge Renke’s campaign brochures, and all involve violations of Canon 7 A(3)(a) and Canon 7 A(3)(d)(iii). The Code of Judicial Conduct was recently amended by this Court, effective January 2006; while the text of the particular Canon subsection has not changed, Canon 7(A)(3)(d)(iii) is now Canon 7(A)(3)(d)(ii). It reads, as it did at the time that Judge Renke was charged, that a candidate for judicial office shall not “knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.”

The record reflects that Judge Renke arranged for the Mallard Group, a political campaign company headed by John Herbert, to do all of the direct mail campaign work; however, the judge reviewed and approved all of the campaign materials designed by Herbert. Regarding the first charge, the JQC concluded that the phrase “a judge with our values,” written in large yellow print, surrounding a photo of the Renke family, and coupled with other text from the brochure stating that Renke had “real judicial experience as a hearing officer and in hearing appeals from administrative law judges,” knowingly and purposefully created the impression that Judge Renke was running as an incumbent judge when he was not.

Count 2 concerned a picture, prominently displayed in the same brochure, of Judge Renke sitting just beneath a large banner stating “Southwest Florida Water Management District” in front of a nameplate reading, “John K. Renke Chair.” The JQC concluded that this was a deliberate attempt to convey to the public that he was the chairman of the Southwest Florida Water Management District (SWFWMD), a public body of considerable importance and responsibility in the area, when actually he was only chair of the Coastal River Basin Board. In fact, the parties agree no such position as chairman of the SWFWMD even exists.

Finally, with regards to the third charge, the JQC concluded that a picture of Judge Renke, surrounded by firefighters with the caption “Supported by our area’s bravest: John with Kevin Bowler and the Clearwater firefighters,” was an attempt to wrongfully convince the public that he had the official support of the Clearwater firefighters. The panel found that the use of the photograph with the accompanying caption was an intentional misrepresentation of Judge Renke’s campaign endorsements.

We conclude that the JQC’s findings that these three charges have been established by clear and convincing evidence are supported by the evidence received at the hearing. In In re Kinsey, 842 So.2d 77 (Fla.2003), this Court concluded that “a voter should not be required to read the fine print in an election campaign flyer to correct a misrepresentation contained in large, bold letters.” Id. at 90. This admonition has special meaning to the misconduct established here.

As to the first charge, Judge Renke himself testified that the statement, “a judge with our values,” could be misleading to the voting public. As to count 2, Judge Renke admitted that the photograph was also inaccurate. While he points to other text in the same pamphlet indicating that Judge Renke was only “awarded an appointment by the Governor to the Governing Board of the Southwest Florida Water Management District,” In re Kinsey provides that smaller or other text elsewhere in a brochure does not serve to rectify bold misstatements made in the same document. 842 So.2d at 90. In reference to the third charge, again, Judge Renke testified at his hearing that he did not have the support of the Clear-water firefighters union or any actual Clearwater firefighters group or organization. While Judge Renke stated that he did have the support of the particular firefighters posing with him in the campaign brochure photograph, he conceded that he was aware that the firefighters were represented by a union and that he had never asked for their endorsement.

The record provides abundant evidentia-ry support for the JQC’s findings and its conclusion that there was a clear pattern of intentional misrepresentation with regard to the three charges concerning this particular brochure, specifically that Judge Renke was attempting to convey to the voters that he was running as an incumbent judge, was the chair of the SWFWMD, and finally that he was endorsed by the local firefighters. These findings establish clear violations of the judicial canon’s prohibition on knowing misrepresentations of a candidate’s experience and qualifications for judicial office. Accordingly, we uphold the JQC’s findings of guilt on counts 1, 2 and 3.

Counts 6 and 7

Counts 6 and 7 are similar to counts 1-3 but are even more serious, as they involve substantial misrepresentations as to the relevant qualifications for judicial office. These two charges are related to statements Judge Renke made prior to the election, by which the JQC concludes he vastly overstated his relevant legal experience and qualifications for the bench. Count 6 concerned a “Candidate Reply” authored by Judge Renke and submitted to the St. Petersburg Times, in which he claimed he had “almost eight years of experience handling complex civil trials in many areas.” The JQC, rejecting Judge Renke’s explanation that he did not grasp the difference between handling a complex “trial” versus mere “litigation experience,” concluded that this was a false statement. Count 7 concerned a piece of campaign literature in which Judge Renke stated that his opponent in the judicial election did not have the kind of broad experience necessary to be a circuit judge and that the public would instead be “better served by an attorney [like you] who has many years of broad civil trial experience.” The JQC, concluding that this was a clear misrepresentation regarding his qualifications, disregarded Renke’s claim that the statement regarding his years of “broad civil trial experience” was accurate, since his opponent’s experience was primarily in the area of criminal law.

As with the first set of charges, we also find that the findings of misconduct on counts 6 and 7 are supported by clear and convincing evidence. Among other testimony given at the hearing below, Judge Renke testified that he had never acted as lead counsel in a jury trial and that the only trial he tried on his own was a small claims case. He also testified that the claim regarding his eight years of “broad civil trial experience” “may not be the best and most accurate way to depict what [he] had done over eight years.” He went on to confirm that he had no criminal law experience, had never examined a witness outside of the above-mentioned small claims court case, and that he was never “on his feet” in a courtroom in a ease in which his father was lead counsel.

Furthermore, while Judge Renke disputed that he was “called out” by the newspaper’s editorial board regarding his claim that he had eight years of trial experience in the courtroom prior to his publishing the “Candidate’s Reply” at issue in count 6, the testimony makes clear that he was asked by the editorial board how many times he had, in fact, served as first chair. Although he replied that he had never served as first chair, he nevertheless still included the claim regarding his broad trial experience in his “Candidate’s Reply.”

As the JQC found, in reality Judge Renke had virtually no trial experience at all, and his explicit campaign statements to the contrary constitute blatant misrepresentations as to his qualifications. We find abundant evidence to support the JQC’s conclusion that throughout his campaign he knowingly misrepresented his experience and qualifications for judicial office in direct violation of the judicial canons of ethics.

Count 9

Because we find support for the JQC’s findings of guilt on counts 1, 2, 3, 6, and 7 as outlined above, we also conclude that its finding of guilt on count 9 is supported by clear and convincing evidence. This charge concerns a deliberate and calculated effort on the part of Judge Renke to misrepresent his experience and qualifications for judicial office. We agree, based on the charges specified in counts 1, 2, 3, 6, and 7, that Judge Renke engaged in cumulative misconduct constituting a pattern unbecoming a candidate and lacking in the dignity appropriate to judicial office which has brought the judiciary into disrepute.

Count 8

This charge, added after our rejection of the previously recommended discipline based on the charges set out above, involves a series of campaign “loans” from Judge Renke’s father to his campaign in 2002. The JQC found that the father provided substantial campaign funds to Judge Renke in 2002 and that Renke disguised these funds as earned income from which he made loans to his campaign fund. Judge Renke contended that it was mere coincidence that his income dramatically rose in 2002.

The record reflects that until his election to the bench, Judge Renke was employed in his father’s law firm, where he had worked since his graduation from law school. The firm consisted of John Renke, II, Judge Renke, and a third attorney, Thomas Gurran. John Renke, II’s wife Margaret worked at the firm for over twenty years as a secretary, receiving no salary; Judge Renke’s wife also occasionally performed clerical duties at the firm.

Judge Renke was paid on an hourly basis, earning between $9.00 and $11.00 an hour with no benefits. Judge Renke’s tax records show the following net income after taxes for the eight years he worked for his father’s firm:

1995: $ 10,941
1996: $ 16,020
1997: $ 18,600
1998: $ 15,325
1999: $ 11,480
2000: $ 12,682
2001: $ 35,987
2002: $140,116

There was nothing in writing between father and son regarding Judge Renke’s compensation, and the evidence shows that there were many disputes between Judge Renke and his father regarding his pay. While John Renke continually claimed that he would retire soon and leave the firm to his son, Judge Renke testified that he ultimately decided to run for the judgeship due to his financial concerns. As the JQC concluded, the evidence overwhelmingly indicated that Judge Renke was underpaid throughout these years and he and his family functioned very close to a financial survival line.

The evidence indicates that there was a verbal agreement between Judge Renke and his father that he would be paid twenty percent of the recovery in the firm’s larger cases, but there was disputed evidence as to whether this percentage fee was always paid. This fee arrangement is at the heart of count 8, specifically regarding a series of cases known collectively as the “Driftwood litigation” and involving various claims connected with a homeowner’s association. The firm had handled the cases since 1995, resulting in significant settlements and attorney’s fees. The primary dispute on review between Judge Renke and the JQC involves when the Renkes actually earned the fees generated by these cases. Judge Renke argues that the 2002 payments from his father were his share of the Driftwood settlement, to which he was rightfully entitled. He asserts that it was mere coincidence that he received these substantial increases in income at a time when he was in need of campaign funds.

The JQC rejected this explanation and concluded that while the Driftwood cases had been preliminarily settled in 2001, and a fee of $123,553 had been paid to the senior Renke, this fee was to be held in escrow pending the court’s approval of the final settlement. The insurance company for the defendant in the Driftwood cases made the payment to stop the accrual of further fees and interest, making the check payable to “John K. Renke, II Trust Account.” The agreement provided that if the court did not approve the settlement, John Renke was to return the funds. The JQC noted that a real question existed as to whether the final settlement would be approved or not, with the Renkes arguing that they technically “earned” the money when the check arrived from the insurance company in 2001. However, the JQC found that the Driftwood Homeowner’s Association and Board of Directors still had to approve various changes in the settlement agreement. Furthermore, there was a thirty-day “safeguard period” included after final court approval of the settlement before the funds could become available to ensure that an appeal had not been taken. Court approval of the settlement and a vested right to the fee did not occur until 2003.

Regarding his campaign financing, the JQC found that Judge Renke spent a total of $105,800 on his campaign. The official election filings showed he received approximately $10,000 in public contributions and that he loaned his own campaign $95,800. These monies came in the form of three different loans in the amounts of $6,000, $40,000 and $49,800, which matched incremental compensation installments paid to Judge Renke by his firm. In 2002, the year of the campaign, his final reported salary totaled $140,116, a sum far in excess of any sums previously received. Out of his total net income of $140,116, the sum of $101,800 was attributed directly to the Driftwood fees. Thus the cost of the campaign was $105,800, and the Driftwood fees were supposedly the basis for $101,800 of Judge Renke’s compensation that year, out of which he loaned his campaign $95,800.

The JQC concluded that the firm was not yet entitled to the Driftwood fees since final court approval of the settlement did not happen until August of 2003, and, even though the firm was already holding $123,553 of this money, it was being held in a form of trust and had not yet been earned because the final settlement in the case had not been approved. It should also be noted that Thomas Gurran, the second attorney working for the senior Renke, was likewise entitled to a share of the Driftwood fees; however, he was not paid until October of 2003, after the final court approval of the settlement in August 2003. Thus, the JQC concluded Judge Renke had not actually earned these fees at the time of the payment to him by his father. While it appears that a dispute existed as to the exact fee arrangement between Judge Renke and his father, the JQC concluded that such a dispute was irrelevant, since the compensation he was paid in 2002 was allegedly based solely on the pending Driftwood litigation fees. The JQC, therefore, found Judge Renke guilty of count 8, since he knowingly accepted the unearned fee amounts from his father and then directly loaned them to his own campaign. The JQC concluded that the 2002 payments were actually campaign contributions from his father.

Once again, we find adequate evi-dentiary support for the JQC’s conclusion that these fees were not actually earned until the firm had the completely vested right to them upon final court approval and the expiration of the time for an appeal. We agree that there is clear and convincing evidence to support the JQC’s conclusion that the payments to Judge Renke were intended to be campaign contributions rather than earned income. Judge Renke does not contest any of the actual evidence used by the JQC in reaching its conclusions, nor does he argue that any of the evidence is “indecisive, confused and contradictory,” as was the case when this Court overturned some of the JQC’s findings in In re Davey, 645 So.2d 398, 405 (Fla.1994). Instead, he relies on bits and pieces of the total evidentiary picture in an attempt to paint the circumstances in a manner to fit his explanations. A thorough review of the trial record, some of which we have outlined above, reveals that the JQC’s finding of guilt on this charge is warranted.

Of particular note is the testimony of Steven Mezer, an attorney who represented the Timber Oaks Community Services Association (TOSCA) as part of the Driftwood litigation. He testified that the insurance check was to be held in trust until the court approved the final settlement and that it was his understanding that John Renke was not entitled to the money before such court approval. Mezer also testified that there were many contingen-eies that could affect the final approval of the settlement, since they were dealing with a large community membership that needed to be educated regarding all amendments, and also because there was infighting among the board members regarding the final deal. He stated that, as of 2002, there were indications that some board members were very much opposed to the settlement agreement and that there were also some changes in the constituency of the board. Furthermore, Mezer testified that none of these issues were a secret and he had ongoing discussions with John Renke regarding these problems throughout 2002.

The testimony of Margaret Renke further demonstrates the discrepancies surrounding both the purpose and the timing of the payments made to Judge Renke in 2002. On the one hand, she testified that Judge Renke was paid his portion of the Driftwood fees in a piecemeal fashion because John Renke was concerned that the settlement might not go through; however, she also testified that the fee was split up to cover campaign expenses as they arose, “when [Judge Renke] needed it.” Then again, however, she also stated that Judge Renke could have wanted the sum split up for tax purposes. Her testimony was also inconsistent with regard to the purpose of the payment and whether it was to remedy years of general underpayment or was due Judge Renke as payment for his specific work on the Driftwood cases.

John Renke’s testimony also reveals inconsistencies in Judge Renke’s version of events and furthermore raises questions as to the credibility of his testimony. For example, concerning the fee-sharing arrangement between the two, John Renke testified that the original plan was for Judge Renke to get twenty percent of settlements over $10,000 and that this was not up to his own personal discretion. He then testified that, in 2000, he changed his mind and told his son that he would give him half of the fees from the Driftwood settlement. However, one of the JQC prosecutors noted that in John Renke’s prior three depositions, he had never once mentioned this supposed adjustment in the Driftwood fee-sharing arrangement. An additional discrepancy arose regarding the reason he paid his son the money when he did; during one of his previous depositions, he stated that the money was for Judge Renke’s work solely on Driftwood, but at the hearing, John Renke testified to a whole list of other cases that Judge Renke worked on as reasons to compensate him in 2002. The senior Renke also testified he understood the insurance check to be his money at the time it was delivered to him, and that he was entitled to put it in any account of his choosing, spend it or do with it what he wanted. However, he eventually conceded that the attorney’s fees in Driftwood were contingent on court approval of the settlement and that while he received the Driftwood check in 2001, he did not begin to disburse any payments to Judge Renke until 2002, after his son had decided to run for the judgeship. According to John Renke, the reason that he paid Judge Renke the compensation in piecemeal fashion was to minimize his own risk in case the settlement did not go through. Contradictions in John Renke’s testimony, as well as the discrepancies between his statements at his deposition and then later at trial, bear on his credibility as a witness and the veracity of his explanation for the payments to his son.

Based upon our review of the record, we find ample support for the JQC’s conclusion that both the timing of the payments from John Renke to his son and their prompt deposit into Judge Renke’s campaign account indicate that these funds were not the product of mere coincidence in the payment of earned legal fees, but rather were meant to be campaign contributions. Given the many discrepancies in the testimony of both John and Margaret Renke concerning the purpose and timing of the payments to their son, as well as uncontroverted testimony by an opposing attorney in the Driftwood litigation that the settlement agreement was not final when the payments were made to Judge Renke in 2002 and other evidence in the record, we find that the JQC’s conclusion on this charge is supported by clear and convincing evidence.

DISCIPLINE

According to article V, section 12(c)(1) of the Florida Constitution, this Court has discretion to either accept, reject, or modify the commission’s findings and recommendation of discipline. In re Alley, 699 So.2d 1369 (Fla.1997) (noting that in 1996, article V, section 12 of the Florida Constitution was amended to allow the Supreme Court to modify the recommendations of the JQC). Although this Court gives the findings and recommendations of the JQC great weight, the ultimate power and responsibility in making a determination to discipline a judge rests with this Court. In re Angel, 867 So.2d 379, 382 (Fla.2004).

As mentioned above, this case originally came before us in July of 2004, when the JQC charged Judge Renke only with the campaign literature violations that form the bases of counts 1 through 7 and count 9 of the current proceedings. However, we remanded the case back to the JQC to conduct additional proceedings, having determined that the recommended penalty of a $20,000 fine, a thirty-day suspension, and a public reprimand was not severe enough for the violations presented at that time.

After our rejection and remand, the JQC then added count 8, ultimately concluding that in addition to the serious campaign violations, Judge Renke also violated state campaign finance laws by accepting an illegal campaign contribution from his father. However, despite the addition of this substantial charge, the JQC’s recommended penalty now is barely any different than it was two years ago, with the fine increasing only $20,000, to a total of $40,000. Given our original reservations with the discipline originally recommended by the JQC, we are satisfied that the addition of such egregious campaign finance violations merits a more substantial sanction, lest our warnings of more serious consequences go unheeded.

Given the history of this case before this Court, coupled with the previous warnings we have issued in published opinions regarding misconduct during judicial elections, the deliberate misrepresentations made by Judge Renke during his campaign, and the substantial violation of campaign finance laws, we find that removing Judge Renke from the bench is the only sanction appropriate for the serious misconduct established here.

Importantly, our previous opinions have cautioned against the exact type of misconduct that is before us in this case. Almost ten years ago, in In re Alley, 699 So.2d 1369 (Fla.1997), we faced similar alleged violations on behalf of a candidate for judicial office; in that case, Judge Alley was charged with knowingly misrepresenting her qualifications and those of her opponent in her campaign literature, including mailers and newspaper advertisements. Id. at 1369. Among other violations, she claimed to have circuit court judicial experience, when in fact she had only served as a general master. Id. She also argued that her opponent had no circuit court judicial experience, when actually the opponent did have extensive experience serving in that capacity. Id. Finally, Judge Alley was charged with fostering an overly partisan tone in her election and creating false impressions as to her campaign endorsements. Id.

At the time we reviewed that case, we were constrained by the language of article V regarding our ability to modify the JQC’s proposed discipline. Id. at 1370. However, we expressed our frustration with the recommended discipline in that case, regarding violations similar to the ones we face today, stating, “we find it difficult to allow one guilty of such egregious conduct to retain the benefits of those violations and remain in office.” Id. Thus, we are especially troubled by Judge Renke’s conduct, given the explicit warnings regarding similar misconduct and the potential consequences we issued in In re Alley.

This Court continued to send loud and clear warnings concerning judicial election misconduct in In re McMillan, 797 So.2d 560 (Fla.2001). In that case, Judge McMillan, while a candidate for office, clearly indicated during his campaign that he would favor both the State and the police in court proceedings and also that he would side against the defense; he was further charged with making unfounded attacks on an incumbent judge and the local court system. Id. at 562. As did Judge Renke, Judge McMillan initially made a stipulation regarding these charges. The JQC then recommended a penalty of a public reprimand and six months’ suspension without pay; again, as in the instant case, we rejected this recommendation, remanding the case back to the JQC for further proceedings. Id. at 564. The JQC then amended the charges to add additional allegations, as it did with Judge Renke; in the case of Judge McMillan, this included charges of improper conduct once he was on the bench, including presiding over proceedings in a case in which he had a conflict of interest. Id.

On review, we agreed with the JQC’s findings of guilt on all charges, concluding that they were supported by clear and convincing evidence. Id. at 566. We also agreed with the JQC’s ultimate determination to remove Judge McMillan from the bench, especially in light of the additional charges concerning improper conduct once he became a judge. In our opinion we concluded:

This Court has emphasized that the object of disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge’s fitness to serve as an impartial judicial officer. See In re Kelly, 238 So.2d 565, 569 (Fla.1970). In making that determination, the Court has often pointed out that judges should be held to higher ethical standards than lawyers by virtue of their position in the judiciary and the impact of their conduct on public confidence in an impartial justice system. See In re Boyd, 308 So.2d 13, 21 (Fla. 1975). At the same time, the Court has recognized that the discipline of removal should not be imposed upon a judge unless the Court concludes that “the judge’s conduct is fundamentally inconsistent with the responsibilities of judicial office.” In re Graziano, 696 So.2d 744, 753 (Fla.1997).

In re McMillan, 797 So.2d at 571. In removing a judge from the bench and sounding this warning before Judge Renke’s campaign in 2002, we again were hoping to deter the kind of conduct we are faced with here, and putting all judicial candidates on notice that we would no longer tolerate such serious misconduct.

Unfortunately, we are compelled to repeat and emphasize the same warning we did ten years ago in In re Alley and more recently in In re McMillan:

[A]s we attempted to make clear in In re Alley, to allow someone who has committed such misconduct during a campaign to attain office to then serve the term of the judgeship obtained by such means clearly sends the wrong message to future candidates; that is, the end justifies the means and, thus, all is fair so long as the candidate wins.

In re McMillan, 797 So.2d at 573. Today we make clear that those warnings cannot be ignored by those who seek the trust of the public to place them in judicial office.

In our decision to remove Judge Renke, we have concluded that the series of blatant, knowing misrepresentations found in Judge Renke’s campaign literature and in his statements to the press amount to nothing short of fraud on the electorate in an effort to secure a seat on the bench. Furthermore, as found by the JQC, the payments from Judge Renke’s father, though disguised as compensation, were clearly illegal donations to a judicial campaign in obvious violation of our state campaign finance laws. In essence, Judge Renke and his cohorts created a fictitious candidate, funded his candidacy in violation of Florida’s election laws, and successfully perpetrated a fraud on the electorate in securing the candidate’s election. Unlike the situation in In re Alley, we no longer feel restrained to permit someone who has successfully achieved judicial office by such blatant misconduct to hold onto this office.

Neither are we swayed by the mitigation proffered in this case. It is not enough to point to Judge Renke’s successes as a judge if he only attained that position through his own fraudulent and illegal campaign misconduct. It appears that the JQC may have decided that, as a matter of law, if a judge who has committed serious misconduct is serving adequately as a judge, he is presently fit to hold office. However, even accepting the JQC’s findings of fact on this issue, we hold that regardless of Judge Renke’s present abilities and reputation as a judge, one who obtains a position by fraud and other serious misconduct, as we have found Judge Renke did, is by definition unfit to hold that office.

In determining the discipline appropriate in cases of judicial wrongdoing, our obligation is first and foremost to the public and to our state’s justice system. Florida has chosen a nonpartisan election process for selecting judges, and conduct that substantially misleads the voting public and interferes with its right to make a knowing and intelligent decision as to a judicial candidate’s qualifications will simply not be tolerated in selecting members of the judiciary. Those who seek to assume the mantle of administrators of justice cannot be seen to attain such a position of trust through such unjust means. The JQC’s finding of guilt on the severe campaign finance improprieties evidenced here, when coupled with Judge Renke’s efforts to mislead the voting public as to his experience and qualifications to serve as judge, lead us to conclude that his conduct during his judicial campaign was “fundamentally inconsistent with the responsibilities of judicial office.” In re Gra- ziano, 696 So.2d 744, 753 (Fla.1997). Accordingly, we conclude that Judge Renke is presently unfit to hold judicial office and removal is warranted.

CONCLUSION

We conclude that there is clear and convincing evidence in support of the findings of fact of the JQC on all charges. For the reasons stated above, John Renke III is hereby removed as a judge of the Sixth Judicial Circuit, effective upon this opinion becoming final. We direct that Renke pay the costs of these proceedings. See In re Hapner, 737 So.2d 1075, 1077 (Fla.1999). We remand this case to the JQC for a determination of the amount of such costs.

It is so ordered.

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

WELLS, J., concurs in part and dissents in part with an opinion, in which BELL, J., concurs.

WELLS, J.,

concurring in part and dissenting in part.

I concur in the approval of the findings and conclusions of the Judicial Qualifications Commission (JQC) as to the charges against Judge Renke.

I dissent from the majority’s decision to remove Judge Renke from office. While I agree that the violations committed by Judge Renke are serious — warranting serious discipline — I do not concur with the Court’s removal of Judge Renke when the hearing panel of the Judicial Qualifications Commission has not recommended removal. To the contrary, the hearing panel stated in its findings, conclusions, and recommendations that “after thorough deliberation, the Panel unanimously rejected removal from office.” I know of no precedent in which this Court has removed a judge when there has not been a recommendation by the JQC to do so. Here, the Court is not only doing so without a JQC recommendation, the Court is rejecting the JQC’s recommendation that the judge not be removed from office.

I do not conclude that the Court could never remove a judge from office without a recommendation to do so from the hearing panel of the JQC, but I do conclude that this Court can only do so when adhering strictly to the constitution and upon specifically stated standards. The constitutional provision upon which the Court is authorized to act is article V, section 12(c)(1), which states:

(c) SUPREME COURT. — The supreme court shall receive recommendations from the judicial qualifications commission’s hearing panel.
(1) The supreme court may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission and it may order that the justice or judge be subjected to appropriate discipline, or be removed from office with termination of compensation for willful or persistent failure to perform judicial duties or for other conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, or be involuntarily retired for any permanent disability that seriously interferes with the performance of judicial duties. Malafides, scienter or moral turpitude on the part of a justice or judge shall not be required for removal from office of a justice or judge whose conduct demonstrates a present unfitness to hold office. After the fifing of a formal proceeding and upon request of the investigative panel, the supreme court may suspend the justice or judge from office, with or without compensation, pending final determination of the inquiry.

I read this section to authorize this Court to remove a judge from office only for conduct “demonstrating a present unfitness to hold office.”

In this case, the hearing panel of the JQC specifically found that there had not been demonstrated a present unfitness to hold office. The hearing panel stated:

The Panel believes that Judge Renke has been a very good judge for three years and the Panel thus strongly holds that he is not presently unfit to serve as a judge.

The hearing panel, of course, heard live evidence and had the power to evaluate the credibility of witnesses. The Court did not. I do not believe that the constitution allows this Court’s majority to simply substitute its judgment for that of the hearing panel which heard and evaluated the evidence.

I cannot agree with the majority that this specific finding by the JQC can be avoided by this Court’s finding that Judge Renke obtained his position by fraud. The JQC did not charge Judge Renke with obtaining his position by fraud. Rather, the JQC charged Judge Renke with making a series of misrepresentations during the election campaign. I am uncertain what the standards are by which campaign misrepresentations rise to the level of fraud.

Neither did the JQC panel find Judge Renke guilty of having obtained his position by fraud. In the thirty-three pages of the JQC’s “Findings, Conclusions and Recommendations” I do not find the word “fraud.”

Whether there was fraud would properly be decided as an issue of fact. This has always been the law of this State. See Gibson v. Love, 4 Fla. 217 (1851); Lab. Corp. of Am. v. Prof'l Recovery Network, 813 So.2d 266 (Fla. 5th DCA 2002). I know of no precedent for the Court to make a finding of fraud as the Court does here.

The JQC is a constitutionally authorized entity which is constitutionally independent from this Court. Art. V, § 12(a)-(b), Fla. Const. I believe this Court should give the findings, conclusions, and recommendations of the JQC not only the deference given by an appellate court to the findings of fact of any lower tribunal, but enhanced deference by reason of the JQC’s constitutional empowerment. In its brief and argument before this Court, the JQC contended that the discipline in this case should be as recommended by the hearing panel. There has been no brief or argument contending that Judge Renke should be removed.

This Court removed judges from office in In re McMillan, 797 So.2d 560 (Fla. 2001); In re Shea, 759 So.2d 631 (Fla. 2000); and In re Graziano, 696 So.2d 744 (Fla.1997). Each time, we did so upon the recommendation of the JQC. In doing so, we recognized that removal is the ultimate sanction:

Removal is the ultimate sanction in judicial disciplinary proceedings. This Court will approve a recommendation that a judge be removed from the bench when we conclude that the judge’s conduct is fundamentally inconsistent with the responsibilities of judicial office.

Shea, 759 So.2d at 638-39 (citation omitted). With a directly contrary recommendation from the JQC, I cannot join in the majority’s use of this ultimate sanction. A finding by this Court of fraud cannot be a proper basis since fraud was not found by the JQC in this case. What is the standard that we will apply in future cases? What is the role of the hearing panel of the JQC?

It is my view that since the majority does not conclude that it can approve the discipline recommended by the hearing panel, the proper course would be to again remand to the hearing panel for further consideration of a more severe sanction that is short of removal from office. I would join in that remand.

BELL, J., concurs.

      . The text of Canon 7 A(3)(a) has been changed since the beginning of these proceedings against Judge Renke, but the modification does not affect this case, since Judge Renke was not accused of committing himself to a particular stance on an issue during his campaign. Canon 7(A)(3)(a) now provides that a candidate for judicial office "shall maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity, and independence of the judiciary, and shall encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate.” (Emphasis added.)

      . This evidence would also appear to support the JQC findings as to Judge Renke's misrepresentations regarding his legal experience.

      . To defend his belief that he could place the money in an account of his choosing, John Renke read aloud a provision from the settlement agreement's “Post-Signing Procedure,” which stated: "TOSCA's Insurer will, within 10 days after this agreement is signed by the attorneys, deposit in an interest-bearing account at a place and of a type to be designated by John K. Renke, II:(a) $98,000 for plaintiffs' attorneys fees incurred through the December 1998 mediation.”


author: PER CURIAM.

text:
    In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR—RULES 3-5.2 AND 3-7.2.
    No. SC05-1684.
    Supreme Court of Florida.
    June 29, 2006.
    Murray B. Silverstein, Chair, Disciplinary Procedure Committee, St. Petersburg, FL, Alan B. Bookman, President, Henry M. Coxe, III, President-elect, John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Director, Legal Division-Lawyer Regulation, The Florida Bar, Tallahassee, FL, for Petitioner.
    William D. Matthewman of Seiden, Alder and Matthewman, P.A., Boca Raton, FL, responding with comments.
   PER CURIAM.

The Florida Bar petitions this Court to consider its proposed amendments to the Rules Regulating the Florida Bar. The petition is in response to the Court’s request that the Bar consider several issues regarding the operation of rules 3-5.2 (emergency suspension and probation) and 3-7.2 (procedures upon criminal or professional misconduct). We have jurisdiction. See art. V, 15, Fla. Const.

The Bar submitted the proposals to the Board of Governors of The Florida Bar for its recommendation. The Board approved the proposals. The proposals were published for comment in the August 1, 2005, edition of The Florida Bar Neivs. In that publication, the Bar instructed interested parties to file any comments directly with the Court. Thereafter, the Bar filed the proposals with the Court.

In response to the publication notice, one comment was filed with the Court. After considering the comment and holding oral argument on June 7, 2006, the Court adopts the Bar’s proposals, modified as follows.

First, the proposal for rule 3-7.2 (procedures upon criminal or professional misconduct) would have deleted language stating the well-established principle that a person cannot return to the practice of law in Florida until his or her civil rights have been restored. The Court modifies the proposal to retain this principle in the rule.

Second, the proposal for rule 3-7.2(e) would require bar members to report determinations or judgments of guilt for any criminal offense. The commenter suggested that this new requirement should specify a date, clarifying the entered determinations or judgments that bar members must report. Otherwise, bar members might conclude that they are required to report past determinations or judgments of guilt which were entered before the effective date of the instant proposals. Thus, the Court modifies the proposal to clarify that bar members shall notify the executive director of The Florida Bar of determinations or judgments entered on or after August 1, 2006.

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. The amendments shall become effective on August 1, 2006, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM PROBATION

(a) Initial — Petition for Emergency Suspension. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unre-butted, would establish clearly and convincingly that an attorney appears to be causing great public harm, the Supreme Court of Florida may issue an order ⅜-posing emergency conditions-of — probation on said attorney or suspending said attorney on an emergency basis.

(b) Petition for Interim Probation. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that conditions or restrictions on an attorneys privilege to practice law in Florida are necessary for protection of the public, the Supreme Court of Florida may issue an order placing said attorney on interim probation, the conditions of which shall be as provided in rule 3-5.1(c).

(be) Trust Accounts. Any order of emergency suspension or probation that restricts the attorney in maintaining a trust account shall, when served on any bank or other financial institution maintaining an account against which said attorney may make withdrawals, serve as an injunction to prevent said bank or financial institution from making further payment from such account or accounts on any obligation except in accordance with restrictions imposed by the court.

(ed) New Cases and Existing Clients. Any order of emergency suspension issued under this rule shall immediately preclude the attorney from accepting any new cases and unless otherwise ordered permit the attorney to continue to represent existing clients for only the first 30 days after issuance of such emergency order. Any fees paid to the suspended attorney during the 30-day period shall be deposited in a trust account from which withdrawals may be made only in accordance with restrictions imposed by the court.

(de) Filing of Formal Complaints. The Florida Bar shall file a formal complaint within 60 days of the emergency order and proceed- to-tml-of- the-undsrly-ing-issues, without the necessity of a finding of probable cause by either a grievance committee or the board of governors.

(ef) Motions for Dissolution.

(1) The attorney may move at any time for dissolution or amendment of an emergency order by motion filed with the Supreme Court of Florida, a copy of which will be served on bar counsel. Such motion shall operate as anot stay ef-any other proceedings and applicable time limitations in the case and, unless the motion fails to state good cause or is procedurally barred as an invalid successive motion, shall immediately be assigned to a referee designated by the chief justice. The filing of such motion shall not stay the operation of an order of emergency suspension or interim probation entered under this rule.

(2) The referee shall hear such motion within 7 days of assignment, or a shorter time if practicable, and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing, or a shorter time if practicable. The referee shall recommend dissolution or amendment, whichever is appropriate, to the extent that bar counsel cannot demonstrate a likelihood of prevailing on the merits on any element of the underlying complaint.

(3) Successive motions for dissolution shall be summarily dismissed by the supreme court to the extent that they raise issues that were or with due diligence could have been raised in a prior motion.

(4) Upon receipt of the referees recommended order on the motion for dissolution or amendment, the supreme court shall review and act upon the referees findings and recommendations.. — If ■ the suspension, or- probation-⅛ — any—manner^ The Florida Bar shall file a formal complaint, if one has not yet been filed, within 6Q-days-of-fhe-eontinuance and proceed to trial ■ of-the .underlying-issues., — without-the necessity-of-a-findlng-of-probable-eause-by. either a grievance committee-or -the-board of-gover-nor-S; — A-continuance-of-the-emergency suspension or probation dissolves the-stay-of-other-proeeedingST

(⅛) Hearings on Formal Complaints. Upon the filing of a formal complaint based on charges supporting an emergency order, the chief justice shall appoint a referee to hear the matter in the same manner as provided in rule 3-7.56, except that the referee shall hear the matter and issue a report and recommendation within 90 days of appointment or, if the attorney has filed an unsuccessful motion for dissolution or amendment after the appointment of the referee, within 90 days of the supreme court’s continuance of the emergency order. This time limit shall apply only to trials on complaints in connection with which an emergency suspension or interim probation is in effect. If the time limit specified in this subdivision is not met, that portion of an emergency order imposing a suspension or interim probation shall be automatically dissolved, except upon order of the supreme court upon showing of good cause, provided that any other appropriate disciplinary action on the underlying conduct still may be taken.

(gh) Proceedings in the Supreme Court of Florida. Consideration of the referees report and recommendation shall be expedited in the supreme court. If oral argument is granted, the chief justice shall schedule oral argument as soon as practicable.

(hi) Waiver of Time Limits. Respondent may at any time waive the time requirements set forth in this rule by written request made to and approved by the referee assigned to hear the matter.

RULE 3-7.2 PROCEDURES UPON CRIMINAL OR PROFESSIONAL MISCONDUCT; DISCIPLINE UPON DETERMINATION OR JUDGMENT OF GUILT OF CRIMINAL MISCONDUCT

(a) Definitions.

(1) Judgment of Guilt. For the purposes of these rules, “judgment of guilt” shall include only those cases in which the trial court in the criminal proceeding enters an order adjudicating the respondent guilty of the offense(s) charged.

(2) Determination of Guilt. For the purposes of these rules, “determination of guilt” shall include ©sly those cases in which the trial court in the criminal proceeding enters an order withholding adjudication of the respondent’s guilt of the offense(s) charged, those cases in which the convicted attorney has entered a plea of guilty to criminal charges, those cases in which the convicted attorney has entered a no contest plea to criminal charges, those cases in which the jury has rendered a verdict of guilty of criminal charges, and those cases in which the trial .judge in a bench trial has rendered a verdict of guilty of criminal charges.

(3) Convicted Attorney. For the purposes of these rules, “convicted attorney” shall mean an attorney who has had either a determination or judgment of guilt entered by the trial court in the criminal proceeding.

(b) Determination or Judgment of Guilt, Admissibility; Proof of Guilt. Determination or judgment of guilt of a member of The Florida Bar by a court of competent jurisdiction upon trial of or plea to any crime or-offense that is a felony under the laws of this state, or under the laws under which any other court making such determination or entering such judgment exercises its jurisdiction, shall be admissible in proceedings under these rules and shall be conclusive proof of guilt of the criminal offense(s) charged for the purposes of these rules.

(c) Notice of Institution of Felony Criminal Charges Determination — or Judgment of Guilt. Upon the institution of a felony criminal charge against a member of The Florida Bar by the filing of an indictment or information entry of a deter-núnation-or-j-udgment^-&f — guilt against a member-of-T-he-F-lor-ida-Bar by a court of competent jurisdiction upon trial of or plea to any offense that is a felony under the laws-applieaMe-fco-such court, such convicted-att&me-y-the member shall within 30 10 days of suefe the institution of the felony criminal charges determination — or—judgment notify the executive director of The Florida Bar of such charges determination or judgment. Notice shall include a copy of the order(s) whereby such determination or judgment was entered document(s) evidencing institution of the charges.

If the state attorney whose office is assigned to a felony criminal case is aware that the defendant is a member of The Florida Bar, the state attorney shall provide a copy of the indictment or information to the executive director.

(d)Notice of Determination or Judgment of Guilt by^Courts-of-the-State-of Florida of Felony Charges.

(1) Trial Judge. If any such determination or judgment is entered by in a court of the State of Florida, the trial judge or clerk thereof shall, within 10 days of the date on which the determination or judgment is entered, transmit give notice thereof to the Supreme Court of-Florida and-the executive director of The Florida Bar and shall include a certified copy of the order(-s-) — whereby document(s) on which the determination or judgment was entered.

(2) Clerk of Court. If any such determination or judgment is entered in a court of the State of Florida, the clerk thereof shall, within 10 days of the date on which the determination or judgment is entered, give notice thereof to the executive director and shall include a certified copy of the document(s) on which the determination or judgment was entered.

(3) State Attorney. If the state attorney whose office is assigned to a felony criminal case is aware that the defendant is a member of The Florida Bar, the state attorney shall give notice of the determination or judgment of guilt to the executive director and shall include a copy of the document(s) evidencing such determination or judgment.

(e) Notice by Members of Determination or Judgment of Guilt of All Criminal Charges. A member of The Florida Bar shall within 10 days of entry of a determination or judgment for any criminal offense, which was entered on or after August 1, 2006, notify the executive director of The Florida Bar of such determination or .judgment. Notice shall include a copy of the document(s) on which such determination or judgment was entered.

(ef) Suspension by Judgment of Guilt (Felonies). Upon receiving notice that a member of the bar has been determined to be or adjudicated guilty of a felony, toe bar counsel will file a “Notice of Determination or Judgment of Guilt” in the Supreme Court of Florida. A copy of the document(s) on which the determination or judgment is based shall be attached to the notice. Upon the filing of the notice with the Supreme Court of Florida by The Florida Bar and service of such notice upon the respondent of a notice of determination or judgment-of-g-ullt-for-offenses that-are-felonies under applicable law, the respondent shall stand suspended as a member of The Florida Bar on the eleventh-day-aftei-filing of the notice of determination or-judgment-of — guilt unless the respondent shall, on or before the tenth day after filing of-such-notice — file-a-petition to terminate or modify such suspen-sien as defined in rule 3-5.1(e).

(fg) Petition to Modify or Terminate Suspension.

(1)-At any time after the filing of a notice of determination or judgment of guilt, the respondent may file a petition with the Supreme Court of Florida to modify or terminate such suspension and shall serve a copy thereof upon the executive director. The filing of such petition shall not operate as a stay of the suspension imposed under the authority of this rule.

(2) If such petition-is-filed on or before toe-tenth day following the -filing-of — the notice, the suspension-will--be-def-erred'un-ti-l-entry-of an order on the petition.

(3) If such petition is filed--after — toe tenth-day-f-ollowing the filing-of-the-notiee of judgment of guilt, the-suspension-shall remain in effect-pendin-g-disposition of the petition- — Modification or- -termination — of toe suspension-shall be granted only upon a showing of good case.

(h) Appointment of Referee. Upon the entry of an order of suspension, as provided above, the supreme court shall promptly appoint or direct the appointment of a referee.

(1) Hearing on Petition to Terminate or Modify Suspension. The referee shall hear a petition to terminate or modify a suspension imposed under this rule within 7 days of appointment and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing. The referee shall recommend termination or modification of the suspension only if the suspended member can demonstrate that the member is not the convicted person or that the criminal offense is not a felony.

(g) Response to-Petition-to-Modify-or Terminate Automatic-Suspension, — The ■F-lorida-Bar-shall-be-allo-wed 20 days from the filing of a petition -to modify- or-terminate automatic.suspension-to-respond — to ■the ■ same: — Bar-counsel—will- oppose all petitions to modify — or—withhold—an—automatic suspension on a notice of-determination or judgment-of guilt unless-the designated reviewer recommends and-the executive committee'concurs-in-notooppos-ing-sueh-a petition.

(2) Hearing on Sanctions. In addition to conducting a hearing on a petition to terminate or modify a suspension entered under this rule, the referee shall also hear argument concerning the appropriate sanction to be imposed and file a report and recommendation with the supreme court in the same manner and form as provided in rule 3-7.6(m) of these rules. The hearing shall be held and a report and recommendation shall be filed with the supreme court within 30 days of assignment as referee.

The respondent may challenge the imposition of a sanction only on the grounds of mistaken identity or whether the conduct involved constitutes a felony under applicable law. The respondent may present relevant character evidence and relevant matters of mitigation regarding the proper sanction to be imposed. The respondent may not contest the findings of guilt in the criminal proceedings. A respondent who entered a plea in the criminal proceedings may be allowed to explain the circumstances concerning the entry of the plea for purposes of mitigation.

The report and recommendations of the referee may be reviewed in the same manner as provided in rule 3-7.7 of these rules.

(hi) Term-of-Suspension

(1) Maximum — Term—of Suspension. Unless the Supreme — Court of Florida permits an earlier application for reinstatement; the suspension-imposed-on-the determination or judgment of guilt shall remain in effect for 3 years and thereafter until civil rights have been-restored and until the- respondent -is- reinstated-under rule 3-7.10 hereof;

(g)-GontimiaUon — Tkvmig- Appeal of Conviction. A final termination of the criminal- cause-resulting-in-the-afir-maBee of a determination or judgment- of-guilt shall continue -the - suspension -until-expira-fion-ef-al-l-^pe-riods for appeal and rehear-

(-3)-G&ntm,uaü&Wr-of — Suspension Until F-inal Disposition- If an appeal is taken by the respondent from the determination or judgment of the trial court in the criminal proceeding, the suspension shall remain in effect during the appeal, and If on review the cause is remanded for further proceedings, the suspension shall remain in effect until the final disposition of the criminal cause unless modified or terminated by the Supreme Court of Florida as elsewhere provided.

Further, the suspension imposed shall remain in effect until civil rights have been restored and until the respondent is reinstated.

(4j) Termi-n-ation-amd- Expunction of-Suspension. A final disposition of the criminal cause resuifin-g-in-aeguittal-wi-l-l-termmafe the-suspensiom Upon motion of the respondent, the Supreme Court of Florida may expunge a suspension sanction entered under this rule when a final disposition of the criminal cause has resulted in acquittal or dismissal. (5) Effect of Exp-wmtio-n- A respondent who is the subject of a d-isciplinary-h-istory-recor-d- sanction that is expunged under this rule may lawfully may - -deny or fail to acknowledge the sanctions covered by the expunged record, except when the respondent is a candidate for election or appointment to judicial office, or as otherwise required by law.

(i-)-Separ-ate-Diseiplinary Action, — (⅛) I-mMaMon of Action. — The Florida Bar-may — -at-any time, initiate separate disciplinary action agai-nst-the-respondent.

(2) Conclusive Proof ofProbaUe-O&Mser A determination.or — judgment of guilt, where-the offense is a felony under applicable law, shall cons-titute-conclusive proof of probable cause.and-The Florida Bar may- file-a-complaint with the Supreme Court of-F-lorida^-or proceed under rule-3■7v9r-without there first having been a separate finding of probable-cause;

(3) Determination-or-Mdgment-of-Giált as Evidence. — A determination — on-judgment of guilt, wheth&r-for-ehar-ges-thabare felony or misdemeanor in nature, shall be adnaissible-i-n-disciplinary proceedings under these rules, and- in those-cases-where the underlying criminal-charges-constitute felony charges, determinations.or-judgments- of-guilt-shall — fog-pugposes of these rules, constitute conclusive-proof of the c-gminal-offense(-s-)-charged. The failure of a trial court to.adjudicate — the- convicted attorney-guilty of the offense(-s-)-eharg-ed shall-he-considered as a matter-ef-anitiga-fien-on-ly-

(k) Waiver of Time Limits. The respondent may waive the time requirements set forth in this rule by written request made to and approved by the referee or supreme court.

(jl) Professional Misconduct in Foreign Jurisdiction, [no change]