author: KAHN, J.

text:
    T.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2109.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant, T.M., challenges a revocation of juvenile probation, alleging the trial court erred by departing from the recommended disposition of the Department of Juvenile Justice (DJJ). We reverse.

On August 24, 2009, T.M. entered a plea of guilty to one count each of grand theft auto and resisting an officer without violence. The circuit court placed appellant on juvenile probation for a period of one year. On February 10, 2010, appellant pled guilty to violating the terms of his probation by testing positive for marijuana while enrolled in a substance abuse program. By order of the court, DJJ prepared a predisposition report (PDR), which recommended that T.M. be again sentenced to a term of probation subject to Department supervision.

At the March 25, 2010, disposition hearing, the State asked that appellant’s probation be revoked and that T.M. be placed in a moderate-risk setting. The trial judge stated his preference for moderate risk but inquired of the parties as to the availability of a low-risk program. This prompted the juvenile probation officer to identify a “step” program in Yulee, Florida, and another low-risk program also in Nassau County. Defense counsel objected, arguing that a low-risk facility was not the most appropriate service because it was not the least restrictive available setting.

After argument from both parties, the court revoked probation and adjudicated T.M. delinquent for a misdemeanor battery as well. Citing appellant’s heightening criminal conduct, the court overrode the PDR recommendation of continued probation and committed T.M. to the custody of DJJ in a low-risk residential program. Defense counsel preserved her objection.

By statute, a juvenile disposition hearing serves to determine “the most appropriate dispositional services in the least restrictive available setting provided for ... in delinquency cases.” See § 985.03(21), Fla. Stat. (2009). When a trial court adjudicates a child as having committed a delinquent act and determines that the child should be committed to DJJ, “[t]he court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level.” See § 985.433(7)(b), Fla. Stat. (2009).

In E.A.R. v. State, 4 So.3d 614, 638 (Fla.2009), the supreme court “announced a new, more rigorous analysis in which a trial court must engage before departing from DJJ’s recommendation.” See M.J.S. v. State, 6 So.3d 1268, 1269 (Fla. 1st DCA 2009). The supreme court held “a trial court may not depart from the recommendation of DJJ merely because it disagrees with that recommendation; instead, the trial court must provide reasons that are supported by a preponderance of the evidence.” See C.A.D. v. State, 18 So.3d 672, 674 (Fla. 1st DCA 2009) (citing E.A.R., 4 So.3d at 639). E.A.R. then explained the standards the trial court must meet when providing reasons for a departure:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

See 4 So.3d at 688.

After thorough review of the record on appeal, we must conclude that the court failed to comply with these highly specific statutory requirements in two significant respects. First, we cannot discern that the court ever “[a]rticulate[d] an understanding of the respective characteristics of the opposing restrictiveness levels....” See id. After the State asked that T.M. be committed to a moderate-risk program, the court inquired of the probation officer whether any low-risk setting was available. The probation officer cited the availability of two different low-risk settings, the first of which he described as a “step” program in Yulee, Florida. The officer recommended that appellant be committed to this program, which the court characterized as a “wilderness” setting where appellant could “[g]et out on the river ... and reflect on things [amidst] nature.” Apparently satisfied with the features of the program, the court announced, “And [appellant’s] going to be committed to low-risk.”

Upon defense counsel’s objection, the court explained the reasoning behind its determination. To continue appellant on probation, the court reasoned, would “send[ ] the wrong signal to him that there are no sanctions for his conduct. And he needs to know that there are sanctions when he does not obey the law.” Though the court clearly articulated a reason in support of its ultimate determination, it did not expound upon such questions as “the type of child that each restrictiveness level is designed to serve, the potential ‘lengths of stay’ associated with each level, and the divergent treatment programs and services available to the juvenile at these levelsf.]” See id. As required by E.A.R., the court should have compared the relevant features of continued probation to those of low-risk commitment, with a focus on the appropriateness of each setting as a tool for achieving the rehabilitative goal. See id. (directing trial court wishing to impose a “departure disposition” to “explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile ... and ... protecting] the public from further acts of delinquency”).

Second, the record does not fairly reveal that the court identified any material information that DJJ might have misconceived or failed to notice. See id. (requiring juvenile court wishing to depart from DJJ’s professional assessment and PDR to identify “significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitat-ed child poses to the public”). “Simply regurgitating information provided by ... the DJJ’s comprehensive assessment and PDR does not establish acceptable statutory reasons as to why the court is ‘disregarding’ ... DJJ’s recommended disposition.” E.A.R., 4 So.3d at 638. “Rather, such parroting merely communicates that the court concurs with the DJJ’s assessment ... but then, for some unexplained, unarticulated ‘reason,’ has imposed a judicially recrafted disposition.” Id.

Neither the disposition hearing transcript nor the commitment order shows that the court, preoccupied to a large extent by appellant’s “escalating ... criminal conduct,” considered any factors beyond those raised in the PDR. The court observed that appellant had “[flouted] the law” and committed “multiple violations” while on probation. The record of past drug use, the court noted, made appellant a candidate for moderate-risk commitment. The PDR, however, accounts for all such conduct, yet reaches a different ultimate recommendation.

The court’s “brief explanation of its departure from the DJJ’s recommendation ... did not meet the legal standard enunciated in E.A.R.” See S.G. v. State, 26 So.3d 725, 726 (Fla. 2nd DCA 2010). Accordingly, the disposition must be REVERSED and the matter REMANDED to the trial court for further proceedings. See id.

VAN NORTWICK and THOMAS, JJ., concur.


source: Caselaw Access Project

author: JACOBUS, J.

license: Public Domain

text:
    DEPARTMENT OF REVENUE o/b/o Acquanetta BUFFORD, Appellant, v. Llia PIPKIN, Appellee.
    No. 5D09-1995.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    No Appearance for Appellee.
   JACOBUS, J.

The Department of Revenue (DOR) appeals the final judgment directing Llia Pipkin, who is the non-custodial parent of the minor, to pay child support for her daughter. DOR claims the hearing officer erroneously imputed income to the unknown father who is not a party to the child support proceeding. We agree.

DOR filed a petition on behalf of Ac-quanetta Bufford, the child’s relative caretaker, seeking support and health insurance for the minor child. The petition alleged that the mother was earning minimum wage or had the ability to be employed earning minimum wage. Therefore, it requested the mother pay current child support as well as retroactive child support and maintain health insurance for the child.

The mother was served with the petition, but she failed to respond or attend the hearing. The hearing officer expressed concern that DOR had not attempted to identify the child’s biological father. DOR explained that the biological father’s identity was unknown, and the mother was uncooperative and refused to identify him. Accordingly, DOR presented the hearing officer with a guideline worksheet requiring the mother to pay 100% of the child support obligation. The hearing officer concluded that the statutory scheme did not allow one parent to pay 100% of the child support, even when the other parent was unknown. Therefore, he imputed income to the unknown father and calculated the child support by using minimum wage for each parent. DOR appeals that decision.

In this case, there is no competent substantial evidence to support the imputation of income to the unknown father. Because there is no evidence regarding the biological father’s earnings or potential earnings, the finding of the hearing officer was improper. § 61.30(2)(b), Fla. Stat. (2009); Freilich v. Freilich, 897 So.2d 537, 543 (Fla. 5th DCA 2005) (explaining that in order to impute income to a parent, a court must include specific findings in the final judgment or the record must reveal competent substantial evidence supporting the decision). Since there is no evidence supporting imputation of income to the unknown father, the final judgment must be reversed and remanded for a recalculation using the information the court has regarding the mother. No income should be imputed to the unknown father, and the mother will be responsible for 100% of the support obligation.

REVERSED and REMANDED with directions.

MONACO, C.J. and PALMER, J., concur.

      . § 61.30, Fla. Stat. (2009).


author: PALMER, J.

text:
    Pietro FUCCIO, Appellant, v. Bruno DURSO, Appellee.
    No. 5D10-95.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.

      Thomas E. Cushman, of Thomas E. Cushman, P.A., St. Augustine, for Appellant.
    Steven J. Guardiano, Daytona Beach, for Appellee.
   PALMER, J.

Pietro Fuccio appeals a permanent injunction for protection against domestic violence entered by the trial court against him on behalf of appellee, Bruno Durso. Because Durso failed to prove the elements necessary for the entry of a domestic violence injunction, we reverse.

Durso filed a petition seeking an injunction for protection against domestic violence against his great nephew, Pietro Fuccio. In order to obtain such an injunction, the controlling statute, section 741.28 of the Florida Statutes (2008), specifically requires proof that the parties are residing or have resided together in the same single dwelling unit. Although Durso asserted in his petition that the parties had resided together in the same single dwelling unit, the undisputed testimony submitted during the injunction hearing established that the parties had never lived together. Nevertheless, the trial court granted Durso’s injunction petition.

Fuccio appeals, arguing that Durso failed to sustain his burden of proving his entitlement to secure a domestic violence injunction. Durso concedes that it was improper for the trial court to enter a domestic violence injunction in this case since the parties had never lived together. However, he maintains that we should affirm the injunction as being a matter within the trial court’s equitable jurisdiction, under section 784.046 of the Florida Statutes (2008), which authorizes injunctions for protection against repeat violence. Durso relies upon the case of Wray v. Harrell, 927 So.2d 171 (Fla. 1st DCA 2006), to support his argument.

In that case, the opinion reads:

Although the trial court in this case had jurisdiction of the parties in the subject matter, it appears from a review of the record that the injunction was entered under section 741.30, Florida Statutes (2005), instead of section 784.046, Florida Statutes (2005). The injunction is nevertheless supported by competent substantial evidence. Accordingly, we AFFIRM, without prejudice to appellant’s right to seek modification from the trial court.

Id.

The Wray opinion provides no details regarding the facts of the case, such as whether the error was merely clerical or whether the petitioner sought an injunction under the wrong statute but corrected that error during the hearing. Accordingly, we refuse to rely on the ruling in Wray to affirm the instant injunction. We conclude further that, although the record evidence may have supported the issuance of an injunction for protection against repeat violence under section 748.046 in this case, that fact alone does not support affir-mance of the instant injunction because Fuccio was never provided notice that an injunction was being sought under section 748.046. Notably, when the issue was raised during the hearing in the trial court, counsel for Durso never sought to amend the petition to seek an injunction under section 748.046, nor did he request a continuance to file an appropriate pleading. Furthermore, the issue was not tried by consent of the parties, as Fuccio continually objected to Durso’s request for entry of a domestic violence injunction.

Accordingly, we reverse.

REVERSED.

GRIFFIN, J., and PERRY, B., Associate Judge, concur.


text:
    Luigi FUCCIO, Appellant, v. Palma DURSO, Appellee.
    No. 5D10-96.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.

      Thomas E. Cushman of Thomas E. Cushman, P.A., St. Augustine, for Appellant.
    Steven J. Guardiano, Daytona Beach, for Appellee.
   PALMER, J.

Luigi Fuccio appeals a permanent injunction for protection against domestic violence entered by the trial court against him on behalf of appellee, Palma Durso. Because Durso failed to prove the elements necessary for the entry of a domestic violence injunction, we reverse.

Durso filed a petition seeking an injunction for protection against domestic violence against her nephew, Luigi Fuccio. In order to obtain such an injunction, the controlling statute, section 741.28 of the Florida Statutes (2008), requires proof that the parties are residing, or have resided, together in the same single dwelling unit. Although Durso asserted in her petition that the parties had resided together in the same single dwelling unit, the undisputed testimony submitted during the injunction hearing established that the parties had never lived together. Nevertheless, the trial court granted Durso’s injunction petition.

Fuccio appeals, arguing that Durso failed to sustain her burden of proving her entitlement to secure a domestic violence injunction. Durso concedes that it was improper for the trial court to enter a domestic violence injunction in this case since the parties had never lived together. However, she maintains that we should affirm the injunction as being a matter within the trial court’s equitable jurisdiction, under section 784.046 of the Florida Statutes (2008), which authorizes injunctions for protection against repeat violence. Durso relies upon the case of Wray v. Harrell, 927 So.2d 171 (Fla. 1st DCA 2006), to support her argument.

In that case, the opinion reads:

Although the trial court in this case had jurisdiction of the parties in the subject matter, it appears from a review of the record that the injunction was entered under section 741.30, Florida Statutes (2005), instead of section 784.046, Florida Statutes (2005). The injunction is nevertheless supported by competent substantial evidence. Accordingly, we AFFIRM, without prejudice to appellant’s right to seek modification from the trial court.

Id.

The Wray opinion provides no details regarding the facts of the case, such as whether the error was clerical or whether the petitioners sought an injunction under the wrong statute but corrected that error during the hearing. Accordingly, we refuse to rely on the ruling in Wray to affirm the instant injunction. We conclude further that although the record evidence in this case may have supported the issuance of an injunction for protection against repeat violence under section 748.046, that fact alone does not support affirmance of the instant injunction because Fuccio was never provided notice that an injunction was being sought under section 748.046. Notably, when the issue was raised during the hearing in the trial court, counsel for Durso never sought to amend the petition to seek an injunction under section 748.046, nor did she request a continuance to file an appropriate pleading. Furthermore, the issue was not tried by consent of the parties, as Fuccio continually objected to Durso’s request for entry of a domestic violence injunction.

Accordingly, we reverse.

REVERSED.

GRIFFIN, J., and PERRY, B., Associate Judge, concur.


author: TORPY, J.

text:
    Candie Marie ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4267.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

The trial court found that Appellant violated her community control by committing the new law violation of driving with a suspended driver’s license. Appellant challenges this conviction, contending that the State failed to prove that she knew her license had been suspended, an essential element of the offense. Concluding that the State’s proof of mailing notice of the suspension to Appellant’s correct address was sufficient to present a fact issue on this element, we affirm.

Appellant pled no contest in two separate cases. She was sentenced to five years in prison, suspended on the condition that she complete two years of community control followed by probation. She was ordered in both cases to pay restitution and entered into a payment plan for that purpose. While under supervision, Appellant reported to her community control officer for a regularly scheduled meeting. It is undisputed that she drove her vehicle to the meeting. It is also undisputed that she had a suspended driver’s license at the time. The suspension was for failure to pay restitution in the two underlying cases, pursuant to the payment plan. During the meeting, Appellant’s community control officer arrested her for violating Condition 5 of her community control, which required that she live and remain at liberty without violating any law. Appellant told the officer that she did not know her license had been suspended. Appellant was charged with violating Condition 5 of her community control by driving while her license was suspended or revoked contrary to section 322.34(2), Florida Statutes (2009).

The only disputed issue at the violation hearing was whether Appellant was knowingly driving with a suspended license. Appellant testified that she did not know her license had been suspended and that she had not received anything from the Department of Highway Safety and Motor Vehicles (“DHSMV”) advising her of the suspension. Appellant’s mother, who resided at the same address, also testified that she had not seen anything from the DHSMV addressed to Appellant.

The State offered Appellant’s driving record into evidence at the hearing. The record included a notation that the DHSMV had mailed a notice of suspension to Appellant’s address, pursuant to section 322.251, Florida Statutes. It is undisputed that the address where Appellant lived and the address the DHSMV had on file were the same. After hearing all of the evidence, the trial court found that Appellant knowingly drove while her license was suspended or revoked and, by that law violation, violated Condition 5 of her community control. On appeal, Appellant contends that she is entitled to a judgment, as a matter of law, because proof of mailing the notice was insufficient evidence to support a factual determination that she had knowledge of the suspension. We disagree.

When a defendant fails to meet financial obligations arising from a criminal case pursuant to a payment plan, the DHSMV must suspend the defendant’s license upon receipt of notice from the clerk of court. § 322.245(5)(a), Fla. Stat. (2009). Here, the record reflects that the clerk sent notice of Appellant’s failure to pay to the DHSMV and Appellant on April 24, 2009. Upon receipt of the notice from the clerk, pursuant to section 322.251, the DHSMV is obligated to provide notice of suspension to the defendant either by personal delivery or by depositing the notice in the mail, postage prepaid, addressed to the last known address of the defendant. The statute further provides that mail notice is complete upon the expiration of twenty days after it is sent, and that proof that notice was given is made by entry in the DHSMV’s records that notice was given in this manner. The entry in the records is admissible evidence in court and “shall constitute sufficient proof that such notice was given.” § 322.251(2), Fla. Stat. (2009). Here, Appellant’s driver’s license record was admitted in evidence, and it contains an entry reflecting that notice was given on May 7, 2009, effective as of May 27, 2009, twenty days after it was mailed. Therefore, according to the statute, the State introduced sufficient proof that notice had been given.

Appellant makes no mention of section 322.251(2) in her brief. Rather, she directs our attention to a decision of our sister court that supports a contrary conclusion. In Brown v. State, 764 So.2d 741 (Fla. 4th DCA 2000), the court reversed a conviction for driving while license suspended for failure to pay a traffic fine. It concluded that the evidence was insufficient to establish that the defendant had knowledge that his license had been suspended when the only proof of such was evidence of mailing notice to the defendant’s last known address. The Brown court did not apply section 322.251(2), but instead relied upon the following language in section 322.34(2):

The element of knowledge is satisfied if the person has been previously cited as provided in subsection (1); or the person admits to knowledge of the cancellation, suspension, or revocation; or the person received, a notice as provided in subsection (⅛). There shall be a rebuttable presumption that the knowledge requirement is satisfied if a judgment or order as provided in subsection (4) appears in the department’s record for any case except for one involving a suspension by the department for failure to pay a traffic fine or for a financial responsibility violation.

§ 322.34(2), Fla. Stat. (2009) (emphasis added). Because the defendant’s suspension had been for failure to pay a traffic fine and the statutory presumption of knowledge was unavailable, the Brown court concluded that proof of knowledge was lacking as a matter of law, because, absent an admission or prior citation, section 322.34(2) requires proof that the notice had been received. To reach this conclusion, the court necessarily assumed that the list of methods to prove knowledge contained within section 322.34(2) was intended to be exhaustive, and that proof of receipt of the notice must be by direct evidence. Although Brown may be distinguished, we nevertheless disagree with its interpretation of the applicable statute.

Assuming that section 322.34(2) is intended to provide an exhaustive list of the available methods for proving knowledge, the statute does not dictate that proof of receipt of the notice may only be made by direct evidence. The statute provides that knowledge is satisfied where the defendant “received a notice as provided in subsection (4).” Subsection (4) does not address itself to the manner of providing notice, only that the order of suspension contain a notice provision. The manner of providing notice for this type of suspension order is contained in section 322.251. These two statutes must be construed together as they are interwoven by design. See Ferguson v. State, 377 So.2d 709, 710 (Fla.1979) (statutes which pertain to closely related subject should be construed together). Section 322.251(1) directs that service be by either personal delivery or mail. Section 322.251(2) sets forth the effect of mail service, providing that record entry that notice was mailed is both admissible in evidence and constitutes sufficient proof that notice was given. The dictate that the record entry is admissible in court to prove that notice was given can serve no purpose other than to establish the receipt of such notice in a prosecution for driving in contravention of a suspension order. There are no other court proceedings where the receipt of notice would be germane. Thus, to conclude otherwise would render the entirety of section 322.251(2) meaningless. See Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007) (court must give effect to every word, phrase, sentence, and part of statute; words in statute should not be construed as mere surplusage).

We also observe that the Brown court did not consider the effect of section 322.34(3), when it implicitly concluded that section 322.34(2) contains an exhaustive list of methods of proving knowledge. That this list is not intended to be the sole method of proof on this issue is made clear by the application of that section. Section 322.34(3) provides that the court may consider evidence “other than that specified in subsection (2)” to establish a knowing violation. Therefore, even were we to conclude that subsection (2) requires proof of receipt by direct evidence, according to subsection (3), other methods of proof are nevertheless available, including the type of circumstantial proof used here. In a criminal prosecution, knowledge is rarely proven by direct evidence and may be proven through circumstantial evidence. Grant v. State, 13 So.3d 163 (Fla. 1st DCA 2009); State v. Norris, 384 So.2d 298 (Fla. 4th DCA 1980); Heineman v. State, 327 So.2d 898 (Fla. 3d DCA 1976). Again, we are constrained by statutory construction principles to avoid any construction that renders an entire subsection meaningless.

We do not view the unavailability of the statutory presumption set forth in section 322.34(2) to compel a different result. The presumption arises when an order containing a notice provision is entered in the driver’s record. The manner of service of the notice is immaterial to whether the presumption exists. In cases where the presumption applies, it is only necessary that the State prove that an order containing a notice provision is contained within its records. When the presumption is unavailable, the result is simply that the State is left to prove knowledge without the benefit of the presumption and must prove this element of the crime just as it would if the presumption never existed, and just as it would for any other element. The State must show that the defendant knew his license was suspended.

Here, Appellant was aware that she was required to pay restitution under a court order and payment plan. She knew that she had failed to pay and knew, or should have known, that there would be consequences for her failure to abide by the court’s order. The clerk apparently mailed to her a copy of the request to the DHSMV to suspend her license. The statutory notice from the DHSMV was mailed to Appellant, properly addressed, as evidenced by the entry in the DHSMVs records. The State’s evidence, if believed, directly contradicted Appellant’s theory of innocence. It was up to the trial judge, sitting as trier of fact, to decide whether the State proved this element by a preponderance of the evidence, when weighed against Appellant’s protestations that she had been unaware of the suspension. It is not our function to reweigh this conflicting evidence.

We acknowledge conflict with Brovm and with Haygood.

AFFIRMED.

EVANDER and JACOBUS, JJ., concur.

      . We have previously stated that a proper mailing under this statute is “conclusive evidence of notice.” Fields v. State, 731 So.2d 753, 754 n. 2 (Fla. 5th DCA 1999). Whether conclusive or not, at the very least this evidence is sufficient to overcome a directed verdict on the notice issue. This statute embodies the general rule that properly addressed and stamped mail is presumed to have been received by the addressee. Brown v. Giffen Indus., Inc., 281 So.2d 897 (Fla.1973). To the extent that Fields discussed whether knowledge is an element, it has been superseded by a subsequent statutory amendment.

      . Neither counsel addressed this statute in their briefs, although both acknowledged that the trial judge had relied upon our decision in Fields, 731 So.2d at 754, which expressly addressed the effect of section 322.251.

      . Brown may simply be read for the proposition that the circumstantial proof of notice was insufficient to overcome the defendant’s claim that he never received notice, where the burden of proof was beyond a reasonable doubt and there existed a discrepancy between the addresses where the notice was given and where the defendant resided at the time the notice was given. Brown also involved a different type of license suspension than we have here. In Brown, the suspension was for failure to pay a traffic fine, an express exception to the statutory presumption. Here, the suspension is for not paying restitution under a payment plan. Even if Brown is distinguishable, however, we are nevertheless in conflict with Haygood v. State, 17 So.3d 894 (Fla. 1st DCA 2009), which relied upon Brown's interpretation of the statute.

      . Of the two authorized methods of service, only personal delivery would provide direct proof of receipt. Certified mail, return receipt requested with restricted delivery, would be direct evidence of receipt, but it is not an authorized method of service under section 322.251. If the legislature had intended section 322.34(2) to mandate personal delivery, it could have so stated in simple terms. Fla. State Racing Comm’n v. McLaughlin, 102 So.2d 574, 576 (Fla.1958) (failure of legislature to use simple terms to convey different meaning suggests different meaning not intended).

      . It might be that the parties in Brown never brought this section to the attention of the court.

      .Although not argued by the State, we note parenthetically that the exception to the presumption might not be applicable here in any event. It only applies when the suspension is for nonpayment of traffic fines or “a financial responsibility violation.” We think the latter form of suspension refers to suspensions under Chapter 324, Florida Statutes, which is the chapter that pertains to "Financial Responsibility.” Here the suspension was for an entirely different reason — failure to pay a court-ordered obligation under a payment plan pursuant to section 322.245(5)(a).


author: PER CURIAM.

text:
    Jeffery WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5895.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.
    Richard Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the August 17, 2010, judgment and sentence in Duval County Circuit Court case number 16-2009-CF-006503-AXXX-MA. 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 the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

BENTON, C.J., KAHN, and WETHERELL, JJ., concur.


text:
    Arnold L. ZIMMERMAN, individually, and as Trustee of the Zimmerman Family Trust, Appellant/Cross-Appellee, v. Mary S. CADE, individually, and as Personal Representative of the Estate of Dr. J. Robert Cade, Deceased, Appellee/Cross-Appellant.
    No. 1D10-5446.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach; and Jack M. Ross of Siegel Hughes & Ross, P.A., Gainesville, for Appellant/Cross Ap-pellee.
    Mark A. Avera, Gainesville; and Sharon H. Proctor of Proctor Appellate Law, P.A., Lake St. Louis, Missouri, for Appel-lee/Cross-Appellant.
   PER CURIAM.

Upon consideration of the parties’ responses to the Court’s order of October 20, 2010, the Court has determined that the order on appeal/cross-appeal, is not a final order. To the extent that the lower tribunal reserved jurisdiction to determine entitlement to and amount of dividends paid or declared on the rescinded shares of Cade Enterprises stock, the order does not represent a conclusion to its judicial labor in this matter and is therefore not an appeal-able final order. See McGurn v. Scott, 596 So.2d 1042 (Fla.1992); see also Raymond James & Associates, Inc. v. Godshall, 851 So.2d at 879, 880 (Fla. 1st DCA 2003) (limiting McGum to orders that otherwise appear to be ordinary money judgments except for an improper reservation of jurisdiction to consider prejudgment interest). Accordingly, the appeal and cross-appeal are hereby dismissed.

BENTON, C.J., KAHN, and WETHERELL, JJ., concur.


text:
    Randy Mourice SORRELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4941.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Jack Behr, Public Defender, and Chris J. Ross, Assistant Public Defender, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the May 17, 2010, judgment and sentence in Escambia County Circuit Court case number 2009-0856-CFA. 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 the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

BENTON, C.J., KAHN, and WETHERELL, JJ., concur.


text:
    Javares Antonio LANDRUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-860.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Javares Landrum appeals convictions on two counts of robbery with a deadly weapon and one count of aggravated assault with a BB gun. On this record, the reliability and credibility of Bashonda Hanber-ry’s testimony were proper matters for the jury. Fitzpatrick v. State, 900 So.2d 495, 508 (Fla.2005) (stating that witness credibility and weight of the evidence are solely questions for the jury). The State has clearly distinguished the facts in Geibel v. State, 817 So.2d 1042 (Fla. 2d DCA 2002), and State v. Shearod, 992 So.2d 900 (Fla. 2d DCA 2008). Although acknowledging that someone committed the crimes, the defense argued the appellant was not present when the crimes occurred. Ms. Han-berry testified live at the trial. The defense rigorously cross-examined her and availed itself of numerous opportunities to question Ms. Hanberry’s motives, reliability, and credibility. We AFFIRM the judgments and sentences.

KAHN, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    John Bush GORDON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5340.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

John Bush Gordon, Jr., appeals his judgment of conviction and sentence arguing the trial court reversibly erred by denying his request to substitute counsel. Although a defendant’s right to counsel of his choice is not unbridled, see U.S. v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), and Evans v. State, 741 So.2d 1190 (Fla. 4th DCA 1999), under the circumstances here, the trial court abused its discretion in denying the defendant’s right to retain counsel. Accordingly, we reverse the judgment of conviction and vacate the sentence, and remand for further proceedings.

REVERSED and REMANDED.

BENTON, C.J., VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    Denise RODMAN, Appellant, v. Niah RODMAN, Appellee.
    No. 1D07-5540.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2010.
    Scott T. Manion of Legal Services of North Florida, Inc., and Wendy S. Loquas-to of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Niah Rodman, pro se, Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

This case was originally dismissed as moot. However, injunctions for protection against domestic violence are an exception to the usual rules of mootness because of the collateral legal consequences that flow from such an injunction. See Godwin v. State, 593 So.2d 211 (Fla.1992). Therefore, the appellant’s motion for rehearing is granted. The opinion dated July 13, 2009 is withdrawn and this opinion is substituted in its place.

On the merits, the injunction for protection against domestic violence is quashed because the petition did not allege, and the testimony at hearing did not establish, that the appellant and the appellee resided in the same household as required by section 741.30, Florida Statutes (2007).

KAHN, THOMAS, and ROBERTS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Florencio CHAVEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1423.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2010.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Florencio Chavez appeals his judgments and sentences for possession of cocaine, possession of paraphernalia, and resisting arrest without violence. He raises four issues on appeal. We conclude that the trial court erred in denying Mr. Chavez’s motion for a continuance. Because we grant a new trial on this issue, we do not reach the other issues.

In February 2009, Mr. Chavez had four separate pending criminal cases filed in one felony division in DeSoto County. The case that actually went to trial and is the case pending in this court is identified as case CF-756. In CF-484, he was charged with felony battery and aggravated battery. In case CF-485, he was charged with possession of cocaine, possession of paraphernalia, and possession of cocaine with intent to sell. Finally, in case CF-752, he was charged with possession of cocaine.

On February 9, 2009, over the objection of Mr. Chavez, the court set case CF-485 for trial on February 25, rather than setting case CF^84 first as the oldest case. The State claimed that it had already sent out subpoenas for case CF-485 and that it was ready to proceed with that trial.

On February 19, the court’s judicial assistant called Mr. Chavez’s attorney and advised him that there had been a change in plans and that case CF-756 would be tried on February 25. Mr. Chavez’s attorney immediately filed a motion for a continuance, explaining that he had not been consulted about this change and had been preparing for trial in the case that the court had set over his objection. Excluding the weekend, he had very little time to change course and prepare for this other trial.

Mr. Chavez’s attorney already had a hearing set on February 20 on a motion to suppress in case CF-485. At that hearing, the parties addressed the motion for continuance. It became clear that the State had misspoken at the prior hearing and that the case the State was actually preparing for trial had been CF-756. The State did not yet have the results of drug testing for case CF-485 and was not ready for trial in that case. The trial court denied the motion for continuance filed by Mr. Chavez’s attorney. Thus, the parties ultimately tried the case that the State had been preparing for trial for several weeks and that the defendant had the opportunity to prepare for only a few days.

The denial of a motion for continuance is within the sound discretion of the trial court, and the trial court’s ruling will not be disturbed unless a palpable abuse of discretion is shown. M.D.E. v. State, 952 So.2d 590 (Fla. 2d DCA 2007). In a criminal case, however, the defendant and his or her counsel are entitled to a reasonable time to prepare for trial. See Browne v. State, 88 Fla. 457, 102 So. 546, 546-47 (1924); Langon v. State, 791 So.2d 1105, 1113 (Fla. 4th DCA 1999). Thus, “[t]he common thread running through those cases in which a palpable abuse of discretion has been found, is that defense counsel must be afforded an adequate opportunity to investigate- and prepare any applicable defense.” Smith v. State, 525 So.2d 477, 479 (Fla. 1st DCA 1988).

In M.F. v. State, 920 So.2d 1252, 1254 (Fla. 2d DCA 2006), following the First District, we set forth the factors to consider in determining whether a trial court abused its discretion in the denial of a motion for continuance based on inadequate time to prepare a defense. These factors include:

1) the time available for preparation, 2) the likelihood of prejudice from the denial, 3) the defendant’s role in shortening preparation time, 4) the complexity of the case, 5) the availability of discovery, 6) the adequacy of counsel actually provided and 7) the skill and experience of chosen counsel and his pre-retention experience with either the defendant or the alleged crime.

Id. (citing McKay v. State, 504 So.2d 1280, 1282 (Fla. 1st DCA 1986)).

It is noteworthy that this case involves circumstances that differ from the usual case in which defense counsel has sought additional time to prepare for trial. Here, the trial court essentially granted the State’s unfiled motion for continuance in CF-485, a case in which the State was unprepared to go to trial and in which a judgment of acquittal was likely without the continuance, and, on very short notice and without consulting defense counsel, substituted another case in which the State was fully prepared for trial. Only this reordering of the trial dates prompted defense counsel’s motion to continue. We evaluate the trial court’s decision to deny the motion for a continuance in light of these circumstances.

Applying the factors outlined in M.F., we conclude that the trial court abused its discretion in denying the request for a continuance. The State had defense counsel preparing for trial on the wrong case, over his objection, until days before the trial. Neither Mr. Chavez nor his attorney was at fault for the reordering of the trial dates. The record indicates that the State had not yet responded to an outstanding request for additional discovery filed the previous year. Having diligently prepared a separate case for trial, counsel was left with four days to complete the trial preparation of this case.

We have reviewed the record and cannot say beyond a reasonable doubt that the failure to continue this case was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.

      . Defense counsel was also concerned that the court had rescheduled the cases in some manner that had involved communication between the State and the court without defense counsel's participation. The court clearly saw the communication as a matter involving administrative responsibilities rather than adjudicative responsibilities under Canon 3 of the Code of Judicial Conduct. Given that more than one case was involved, the matter is probably debatable, and we do not fault the judge in this procedure. The one-sided communications, however, prevented the defense from providing its position on the decision to substitute one trial for the other and reduced the amount of time that the defense had to prepare for trial.


author: NORTHCUTT, Judge.

text:
    Monticello AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-645.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2010.

      Joseph J. Regístrate, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

In Monticello Austin’s trial for lewd and lascivious crimes, the State was allowed to elicit testimony that Austin had used and purchased marijuana with the alleged victim’s father. The improper admission of this evidence warranted a mistrial, but that motion was denied. We reverse Austin’s convictions and remand for a new trial.

Austin and his wife were Mends with another couple and frequently visited their home. During one such visit, Austin was in the bathroom when the hosts’ five-year-old daughter walked in on him. According to the State’s theory of the case, Austin showed his penis to the child and enticed her into touching it. The defense asserted that she entered the bathroom uninvited while Austin was urinating and touched him before he could cover himself.

Although Austin later contended that the girl’s parents knew she had previously barged in on him, he did not inform them of this incident at the time it happened. Instead, they learned about it some months later when the child saw her father urinating and made a comparison to Austin. Needless to say, the parents ended their relationship with Austin and his wife, but they did not call the police. Approximately a year later, when the parents were in the process of getting divorced, the father mentioned the episode during a mediation session. He then contacted the police at the mediator’s urging.

At trial, the State questioned the father about his delay in reporting the incident to the police. He testified that he wanted to spare his daughter and protect the family. On cross-examination, however, he admitted telling law enforcement that he had been reluctant to involve the police because there had been marijuana sales at his home. The State then asked about this on rebuttal, and the father testified that he occasionally smoked marijuana with Austin and that they sometimes would split the cost of purchasing a small amount. The defense objection to this testimony was overruled, and its motion for mistrial denied. Austin was convicted of lewd and lascivious molestation, § 800.04(5), Fla. Stat. (2006), and lewd and lascivious exhibition, § 800.04(7). He was classified as a sexual predator and was sentenced to twenty-five years in prison followed by life probation for the molestation charge with a concurrent fifteen years in prison for the exhibition charge.

Austin raises five issues on appeal, but we find it necessary to address only one. The testimony about Austin’s past use and purchase of an illegal drug was inadmissible character evidence that had no relevance to a material fact in issue. See § 90.404(2), Fla. Stat. (2008) (codifying the rule in Williams v. State, 110 So.2d 654 (Fla.1959), pertaining to admission of similar fact evidence of other crimes). The evidence did not bear on “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. Moreover, the State failed to give the required pretrial notice of its intention to employ Williams rule evidence, and so the trial court was not afforded an opportunity to make the necessary determinations before admitting it, namely

whether the defendant committed the prior crime, whether the prior crime meets the similarity requirements necessary to be relevant as set forth in our prior case law, whether the prior crime is too remote so as to diminish its relevance, and finally, whether the prejudicial effect of the prior crime substantially outweighs its probative value.

Robertson v. State, 829 So.2d 901, 907-08 (Fla.2002) (footnotes omitted). Nor was the jury charged on the limited purpose for which the evidence was admitted. See id.

We reject the State’s argument that Austin opened the door to this testimony. “Opening the door” is an evidentia-ry concept that permits the admission of otherwise inadmissible testimony in order to qualify, explain, or limit previously admitted testimony or evidence. Overton v. State, 801 So.2d 877, 900 (Fla.2001). The normally inadmissible evidence is allowed when fairness and the search for the truth require a fuller explication of evidence that otherwise would have been incomplete and misleading. Hudson v. State, 992 So.2d 96, 110 (Fla.2008). Thus, a party “opens the door” when it elicits misleading testimony or makes a factual assertion that the opposing party has a right to correct so that the jury will not be misled. Robertson, 829 So.2d at 913. For example, a defendant’s evidence of his good character may open the door to impeachment with evidence of the defendant’s bad character. Robertson, 829 So.2d at 912.

That is not what happened in this case. Here, the defense made a limited inquiry into the father’s reasons for not calling the police until he was prompted to do so by a third party long after the event. The question and answer did not implicate Austin’s character. The father’s response was complete, and it required no further explication. Thus, we reject the State’s argument that the defense opened the door to this testimony.

Neither do we agree with the State’s assertion that any error in the admission of this testimony was harmless. The erroneous admission of evidence of collateral crimes is presumed harmful. Smith v. State, 743 So.2d 141 (Fla. 4th DCA 1999) (citing Castro v. State, 547 So.2d 111 (Fla.1989)). An error may be found to be harmless only when there is no reasonable possibility that it contributed to the conviction. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). This was a close case in which Austin’s defense rested on the jury’s assessment of his credibility and character. Certainly, that assessment could easily have been affected by the improper evidence.

Reversed and remanded for a new trial.

CASANUEVA, C.J., and KELLY, J„ Concur.


author: WALLACE, Judge.

text:
    Jeremy S. BARAONA, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4137.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2010.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Jeremy Baraona appeals an order revoking his sex offender community control and sentencing him to fifteen years’ prison for one count of lewd and lascivious acts upon a child. We affirm the revocation and resulting sentence without discussion. However, we remand for correction of the written revocation order.

The affidavit of violation accused Barao-na of violating condition 5 (commission of new offense — domestic battery), condition 9 (failure to comply with instructions), and condition 20 (consuming alcohol). Our review of the transcript reveals that the trial court found Baraona to have violated conditions 5 and 20, but the trial court made no finding concerning condition 9. In contrast, the written order of revocation specifies the violation of all three conditions. “A written order of revocation must conform with the trial court’s oral pronouncement.” Williams v. State, 764 So.2d 757, 758 (Fla. 2d DCA 2000) (citing Narvaez v. State, 674 So.2d 868 (Fla. 2d DCA 1996)). Accordingly, we remand with directions to correct the written order of revocation to conform to the trial court’s oral pronouncement.

Affirmed; remanded for correction.

ALTENBERND and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    Russell Joseph RIOUX, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5330.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2010.
    Andrea M. Norgard of Norgard & Nor-gard, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Russell Joseph Rioux appeals his 2009 convictions and life sentences for sexual battery and lewd molestation on persons less than twelve years old. See §§ 794.011, 800.04, Fla. Stat. (2007). He was fifteen years old at the time of the offenses and sixteen years old at sentencing. We affirm the convictions.

In Graham v. Florida, — U.S. —, —, 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010), the United States Supreme Court held that “[t]he constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Therefore, we vacate Mr. Rioux’s sentences and remand for resen-tencing in accordance with Graham. See also Lavrrick v. State, 45 So.3d 893 (Fla. 3d DCA 2010); Garland v. State, 48 So.3d 54 (Fla. 1st DCA 2010).

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT and CRENSHAW, JJ., Concur.


author: STEVENSON, J.

text:
    Bud FEIN, Appellant, v. PINNACLE INVESTMENTS & CONSULTING GROUP, INC., K.I.T. Financial Services, Inc., et al., Appellees.
    No. 4D09-3055.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Brenda Cox of Brenda Cox, P.A., Boca Raton, and Jerome Tepps of Jerome L. Tepps, P.A., Plantation, for appellant.
    Arie Mrejen of Mrejen Blinderman, P.L., Fort Lauderdale, for appellee K.I.T. Financial Services, Inc.
   STEVENSON, J.

Bud Fein appeals a personal judgment entered against him in the amount of $80,000. Because Fein was not properly served with process in the underlying case, the judgment is void.

Fein is a former partner of the general partnership, Fein & Walker (“the partnership”). The partnership, through its general partner, entered into a settlement agreement pursuant to a foreclosure action. Fein was neither served with process in the underlying foreclosure action nor a signatory to the settlement agreement. When allegations arose that the partnership violated terms of the settlement agreement, a motion was filed against the partnership seeking enforcement of that agreement. Subsequently, a hearing was held on the motion to enforce, resulting in entry of a final judgment against the partnership, as well as against Fein, individually. Fein was never given notice of the motion to enforce the settlement agreement, or of the related hearing. Fein was not present at the hearing and no attorney appeared on his behalf.

Irrespective of the notice issue, the final judgment entered against Fein is void because he was never individually served with process, so he was not a party to the underlying case. “‘A judgment entered ■without service of process is void.’ ” M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1081 (Fla. 4th DCA 2000) (quoting Kennedy v. Richmond, 512 So.2d 1129, 1130 (Fla. 4th DCA 1987)). Additionally, a judgment entered against partners, in their individual capacity, is only given effect as to the partners actually served. See Kennedy v. Richmond, 512 So.2d 1129, 1130 (Fla. 4th DCA 1987). To allow the instant final judgment to stand would violate basic principles of due process. As such, the personal judgment against Fein, individually, is void.

Reversed.

GROSS, C.J., and FARMER, J., concur.


text:
    GARBIN INVESTMENTS, LLC, and Alejandro Garbin, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
    No. 3D10-553.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2010.
    Dennis A. Donet, for appellants.
    Shapiro & Fishman and Heidi J. Wein-zetl, Boca Raton, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680 (Fla. 4th DCA 2004).


author: WELLS, Judge.

text:
    COLODNY, FASS & TALENFELD, P.A., and Michael J. Colodny, individually, Petitioners, v. BAL BAY REALTY, LTD., Respondent.
    No. 3D10-2662.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2010.

      DeMahy Labrador & Drake and Michael T. Tomlin, Coral Gables, for petitioners.
    Hall, Lamb and Hall, and Adam Hall, Miami, for respondent.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   WELLS, Judge.

Colodny, Fass & Talenfeld, P.A. and Michael J. Colodny seek certiorari review of the lower court’s sua sponte order vacating a stay in a legal malpractice action. Finding that the trial court departed from the essential requirements of the law, we grant certiorari and quash the order.

Respondent, Bal Bay Realty, Ltd., instituted the present legal malpractice action in April 2001. Therein, it alleged that Petitioners committed legal malpractice in connection with Petitioners’ representation of Respondent in a matter currently pending in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County. The lower court thereafter entered an agreed order granting Petitioners’ motion to stay or abate the malpractice action pending the outcome of the underlying action in the Seventeenth Judicial Circuit. On September 8, 2010, the lower court vacated the stay of the legal malpractice action on its own motion and, by a separate order, set the matter for trial. The petition for "writ of certiorari ensued.

In vacating the stay and allowing the malpractice issue to proceed to trial before the underlying matter currently pending in the Seventeenth Judicial Circuit is resolved, we find that the trial court departed from the essential requirements of the law. Burgess v. Lippman, 929 So.2d 1097, 1098 (Fla. 4th DCA 2006) (granting certio-rari and quashing an order vacating a stay of a legal malpractice action, finding that abatement or stay of a legal malpractice action “is proper upon a showing by the movant that a related or underlying judicial proceeding will determine whether damages were incurred which are causally related to the alleged negligence/malpractice”); Bierman v. Miller, 639 So.2d 627, 628 (Fla. 3d DCA 1994) (finding that the trial court departed from the essential requirements of the law in vacating a stay of a legal malpractice action and allowing the malpractice action to proceed before the issues in a pending action on a contract were resolved, stating that “[u]ntil the validity of the agreement is decided ... there can be no determination in the malpractice action as to whether [the attorney] was negligent in negotiating and drafting that agreement”).

Accordingly, we grant the petition for writ of certiorari, quash the order under review and remand with directions to abate the legal malpractice action.


text:
    Stanley Cleo ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4168.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Both appellant and the state agree that the circuit court committed fundamental error when, after a non-jury trial, it entered judgments of conviction for both organized fraud and grand theft. We reverse and remand to the circuit court to vacate the conviction for grand theft and resentence appellant for organized fraud. See Pizzo v. State, 945 So.2d 1203 (Fla.2006); Newton v. State, 31 So.3d 892 (Fla. 4th DCA 2010); Pineda v. State, 3 So.3d 1289 (Fla. 4th DCA 2009).

GROSS, C.J., MAY and GERBER, JJ., concur.


text:
    Otto Donnie HARTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5005.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Otto Donnie Hartman, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We affirm the trial court’s order of October 23, 2009, which dismisses appellant’s “letter/motion” as frivolous and forwards a copy of the order to the Department of Corrections. See Johnson v. State, 44 So.3d 198 (Fla. 4th DCA 2010). That order does not include language barring future pro se filings in the circuit court. See State v. Spencer, 751 So.2d 47 (Fla.1999); Fitzgerald v. State, 18 So.3d 1145 (Fla. 3d DCA 2009); Epps v. State, 941 So.2d 1206 (Fla. 4th DCA 2006); see also Thomas v. State, 1 So.3d 194 (Fla. 4th DCA 2008). This court’s affirmance does not prevent appellant from seeking review of any such order issued by the trial court.

Affirmed.

STEVENSON, TAYLOR and LEVINE, JJ., concur.


text:
    Larry MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4377.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.

      Larry Mobley, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

We treat the appellant’s petition for writ of certiorari as an appeal of an order denying the appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without further discussion.

Affirmed.

STEVENSON, MAY and GERBER, JJ., concur.


text:
    Richard ROTH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1882.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Richard Roth, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

We treat this case as an appeal from the denial of a rule 3.850 motion and affirm.

Affirmed.

GROSS, C.J., POLEN and GERBER, JJ., concur.


author: SUAREZ, J.

text:
    EMPIRE WORLD TOWERS, LLC, et al., Petitioners, v. CDR CRÉANCES, S.A.S., Respondent.
    No. 3D10-2587.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2010.
    Devine Goodman Rasco & Wells, Lawrence D. Goodman, Robert J. Kuntz, Jr., and Lindsey H. Lamchick, Miami, for petitioners.
    Kasowitz, Benson, Torres & Friedman, Marcos Daniel Jiménez, and Scott B. Cos-grove, Miami, and Ann M. St. Peter-Griffith, for respondent.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

We grant petitioners’, Empire World Towers, LLC, et al., Petition for Writ of Certiorari and quash the trial court’s Order Granting Renewed Motion to Vouch dated September 17, 2010, insofar as the Order requires petitioners’ attorneys to disclose the names of beneficial owners (e.g. the natural persons) who ultimately own and control the corporate defendants.

Florida Rule of Judicial Administration 2.515(a), relied upon in the trial court, does not require attorneys to make such disclosure. The rule requires an attorney to supply the address of the attorney’s client and to vouch for the attorney’s authority to represent the party. Neither the rule nor the cases interpreting the rule require the attorney to go beyond vouching, or to supply the names of the shareholders or beneficial owners of the defendant corporations. To do so is a violation of a clearly established principle of law which would result in a miscarriage of justice. See ACT Servs., Inc. v. Sch. Bd. of Miami-Dade Cnty., 29 So.3d 450 (Fla. 3d DCA 2010).

Petition for Writ of Certiorari granted.


text:
    N.B., JR., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1293.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2010.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

The trial court found that N.B., Jr., committed the offense of obstructing or opposing an officer without violence. Adjudication was withheld, and N.B. was placed on probation. The court reporter was unable to provide a transcript for use in N.B.’s appeal, and the parties were unable to reconstruct a record.

To obtain a new trial based on a missing transcript, a criminal defendant must show prejudice. See Jones v. State, 923 So.2d 486, 489 (Fla.2006) (“It is therefore clear that under our precedent, this Court requires that the defendant demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant.”). In this case N.B. observes that, but for the lack of the transcript, he would argue that the trial court erred by denying his motion to dismiss for insufficient proof. Indeed, the denial of this motion was listed in the statement of judicial acts to be reviewed on appeal. We conclude that N.B. has shown prejudice because we are unable to review this issue without a transcript.

Reversed and remanded for a new adjudicatory hearing.

CASANUEVA, C.J., and KHOUZAM, J., Concur.


text:
    Darnell M. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1847.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2010.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to Mr. Cooper to timely file a motion for postconviction relief.

CASANUEVA, C.J., and WALLACE and LaROSE, JJ., Concur.


author: KHOUZAM, Judge.

text:
    In the Interest of R.S., a child. D.N., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D10-3445.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2010.
    John E. Hendry, Regional Counsel, Second District, and Robert D. Rosen, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bar-tow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
   KHOUZAM, Judge.

D.N. appeals an order placing his son, R.S., in a permanent guardianship and terminating the supervision of the Department of Children and Family Services. We reverse and remand with instructions that protective supervision be reinstated and that D.N. be given additional time to complete his case plan.

R.S. was adjudicated dependent in March 2009 based on prospective neglect due to D.N.’s incarceration and substance abuse problem. D.N. was given a case plan with the goal of reunification. D.N.’s case plan tasks included requirements that he commit no further law violations, visit and maintain contact with R.S., complete a parenting program, and submit to random drug screens. D.N. was unable to complete most of his case plan tasks, but he maintained contact with R.S. by writing him letters and speaking to him on the phone. D.N.’s tentative release date was August 16, 2010.

In December 2009, the Department filed a motion to place R.S. in a permanent guardianship and to terminate protective supervision. After a hearing, the trial court granted the Department’s motion. The court found, in pertinent part:

11. Reunification with the parents at this time would be contrary to the welfare and not in the best interest of the child. The parents are not fit to care for the child and reunification is not possible because of the circumstances from which the court previously based its finding that the children is/are dependent in the order of adjudication, and in addition: ... The father, [D.N.], is incarcerated and cannot provide stable housing or finances.

The court also found that D.N. was non-compliant with his case plan but noted that D.N. was “not able to work on his case plan tasks due to being incarcerated.”

On appeal, D.N. argues, and the Department concedes, that the written order fails to comply with section 39.6221(2)(a), Florida Statutes (2009), which requires the court to “[l]ist the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact made in its order adjudicating the child dependent or by making separate findings of fact.” See J.S. v. Dep’t of Children & Family Servs., 18 So.3d 712, 714 (Fla. 2d DCA 2009) (finding order failed to comport with statutory requirement where it made “only a general reference to ‘the circumstances from which the court previously based its findings that the children are dependent’ ”).

The Department also concedes, and we agree, that the evidence was insufficient to support the placement of R.S. in a permanent guardianship. See C.A. v. Dep’t of Children & Families, 988 So.2d 1247, 1249 (Fla. 4th DCA 2008) (holding that trial court’s finding must be supported by competent substantial evidence). The trial court found that D.N. was noncompliant with his case plan and could not provide stable housing or finances. D.N.’s failure to comply with his case plan and provide stable housing or finances, however, was due to his incarceration during the pen-dency of this case. Moreover, a parent’s noncompliance with a case plan is not a statutory ground for placing a child in a permanent guardianship, although it is a factor that may be relevant to the trial court’s inquiry regarding the parent’s fitness to care for the child and whether reunification is possible. Id.

Accordingly, we reverse the order placing R.S. in a permanent guardianship and remand with instructions that protective supervision be reinstated and that D.N. be given additional time to complete his case plan.

Reversed and remanded.

CRENSHAW and BLACK, JJ„ Concur.


text:
    M.M., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, and Guardian Ad Litem Program, Respondent.
    No. 3D10-2901.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, and Richard F. Joyce, Chief Assistant Regional Counsel, and Kevin Coyle Colbert, for petitioner.
    Karla Perkins, Assistant District Legal Counsel for the Department of Children and Families; Hillary S. Kambour, Ta-vares, for the Guardian Ad Litem Program.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

ON CONFESSION OF ERROR

Upon appropriate confessions of error by the respondents, the petition of the Mother, M.M., for certiorari is granted. The “Order on Guardian Ad Litem’s Motion to Compel the Testimony of [M.M.]” dated October 18, 2010, is quashed.


author: PER CURIAM

text:
    In re Gerard N. TORRY.
    No. 2010-B-0837.
    Supreme Court of Louisiana.
    Oct. 19, 2010.
    Charles Bennett Plattsmier, Baton Rouge, Gregory Lynn Tweed, for applicant.
    Gerard Nicholas Torry, Baton Rouge, Myles & Myles, Allen Joseph Myles, Plaquemine, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

| jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gerard N. Torry, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed three counts of formal charges against respondent. Prior to a hearing on the formal charges, respondent and the ODC stipulated to the facts and rule violations at issue. The joint stipulations may be summarized as follows:

Count I — The Sias Matter

Respondent stipulated that he was retained in February 2006 by Earline Sias, the mother of Donald Sias, to represent Mr. Sias and a co-defendant in connection with cocaine possession charges in West Baton Rouge Parish. Respondent received $35,000 in cash for the representation. Respondent was able to arrange a favorable plea deal for the co-defendant in May 2006; however, during a hearing in June 2006, respondent was advised by the court that his continued representation of Mr. Sias presented a conflict of interest. Upon being conflicted out of the case, respondent |2failed to promptly refund the unearned portion of the fee to the Sias family, despite repeated requests from the Sias family, their attorney, and the ODC. In March 2008, respondent agreed in writing to refund $15,000 to the Sias family. As of the date the stipulations were prepared, he had failed to return the funds.

Furthermore, respondent informed the ODC that he did not maintain a client trust account and did not have the funds available to pay the Sias family. Therefore, it does not appear that the disputed portion of the fee was placed into a trust account, as required by the Rules of Professional Conduct.

Finally, respondent did not cooperate with the ODC in its investigation of the Sias matter, in that he failed to respond in a timely manner to the ODC’s repeated requests for confirmation that the funds were returned to the Sias family.

Respondent stipulated that his conduct in the Sias matter violated Rules 1.15(a) (a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property), 1.15(d) (failure to timely remit funds to a client or third person), 1.16(d) (obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count II — The Fortenberry Matter

Respondent stipulated that in October 2005, Barry Fortenberry retained him to pursue a civil suit for fraud involving a promissory note. The representation was based upon an hourly rate and respondent was paid an advance deposit of $2,100 to begin working on the case.

IsBefore the representation was completed, Mr. Fortenberry discharged respondent. By his own admission, respondent owed Mr. Fortenberry at least $761.90, and Mr. Fortenberry requested a refund in April 2007. However, it was not until April 2008 that respondent refunded a total of $1,140 to Mr. Fortenberry. During a March 2008 sworn statement concerning this matter, respondent further admitted that he did not have a trust account and did not have the funds available to pay Mr. Fortenberry at that time.

Respondent stipulated that his conduct in the Fortenberry matter violated Rules 1.5(f)(3) and (5) (payment of fees in ad-vanee of services), 1.15(a), 1.15(c) (a lawyer shall deposit into a trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred), 1.15(d), and 1.16(d) of the Rules of Professional Conduct.

Count Ill — The Hayes Matter

Respondent stipulated that Ethelene Hayes retained him to represent her niece for an agreed upon fee of $2,000. Ms. Hayes paid respondent $1,200 in November 2005. Ms. Hayes’s niece never appeared for her appointment with respondent, and Ms. Hayes began asking for a refund beginning in May 2006. In February 2007, respondent provided the ODC with a letter claiming he had forwarded a refund to Ms. Hayes in the amount of $800. However, when respondent finally provided a copy of the cashier’s check sent to Ms. Hayes, it showed the check was not issued until November 2007, and then in the amount of $900. During the intervening two-year period, respondent failed to place the disputed portion of the fee into a trust account and failed to promptly refund the undisputed portion of the fee to Ms. Hayes.

| Respondent stipulated that his conduct in the Hayes matter violated Rules 1.5(f)(3) and (5), 1.15(a), 1.15(c), 1.15(d), and 1.16(d) of the Rules of Professional Conduct.

Hearing Committee Report

The hearing on the formal charges was converted to a hearing in mitigation as a result of the stipulations entered into by respondent. After considering the evidence and testimony presented at the hearing, the hearing committee accepted the joint stipulation of facts and considered them admitted. Similarly, the committee accepted the joint stipulation of rule violations and considered that respondent has admitted such violations.

Turning to the issue of the appropriate sanction for respondent’s misconduct, the committee specifically found this case does not involve conversion by respondent. In aggravation, the committee found multiple offenses, substantial experience in the practice of law (admitted 1983), and respondent’s delay in returning unearned fees to Ms. Hayes, Mr. Fortenberry, and the Sias family, particularly noting he did not make restitution to the Sias family for more than three years. In mitigation, the committee found that respondent does not have a prior disciplinary record and lacked a dishonest or selfish motive. The committee also determined respondent’s “compelled” restitution to his three clients after they filed disciplinary complaints against him is neither an aggravating factor nor a mitigating factor.

Further noting respondent is currently employed by Southern University Law School in the Clinical Law Practice Program and has reduced the scope of his private |daw practice, the committee recommended respondent be suspended from the practice of law for one year, with all but thirty days deferred, subject to the following conditions: (1) respondent shall establish and maintain a trust account or otherwise fully comply with the provisions of Rule 1.15; and (2) respondent shall complete the Louisiana State Bar Association’s Ethics School and Trust Accounting School.

The ODC filed an objection to the hearing committee’s report and recommendation, specifically objecting to the committee’s conclusion that respondent’s conduct did not amount to conversion.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board accepted the joint stipulation of facts, reasoning that factual stipulations are binding on the parties and the court when not in derogation of law. However, the board determined stipulations regarding violations of the Rules of Professional Conduct are not binding. Instead, the board conducted an independent de novo review of the record and made its own determinations concerning rule violations. The board further determined the evidence does not establish that respondent converted client funds. Instead, the evidence establishes that he failed to promptly refund unearned fees on three separate occasions, failed to place client and disputed funds in a trust account, and failed to fully cooperate "with the ODC in one investigation.

The board determined respondent knowingly violated duties owed to his clients and the legal profession. His misconduct caused actual harm to his clients by depriving them of their funds for a substantial period of time. Furthermore, respondent’s failure to cooperate with the ODC in the Sias matter required unnecessary expenditures of the disciplinary system’s limited resources. After | f,reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

In aggravation, the board found prior disciplinary offenses (respondent’s prior diversion), multiple offenses, and substantial experience in the practice of law. In mitigation, the board found the following factors: absence of a dishonest or selfish motive, personal or emotional problems, and a cooperative attitude toward the disciplinary proceedings.

After further considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year, with all but thirty days deferred, followed by one year of unsupervised probation with the condition that respondent complete Trust Accounting School.

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

DISCUSSION

As a threshold matter, we find the disciplinary board erred in rejecting respondent’s stipulations as they pertain to rule violations. In a disciplinary proceeding, the parties are free to enter into such stipulations, and effect must be |7given to them unless they are withdrawn. In this case, considering respondent’s stipulation to the underlying facts and rule violations, the sole issue presented for our consideration is the appropriate sanction for his misconduct. In resolving that issue, we are mindful that the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. Louisiana State Bar Ass’n v. Guidry, 571 So.2d 161 (La.1990). 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).

The stipulations in the record generally support the board’s conclusion that respondent failed to promptly refund unearned fees in three legal matters, failed to place client and disputed funds in a trust account, and failed to fully cooperate with the ODC in one investigation. In In re: Brigandi, 02-2873 (La.4/9/03), 843 So.2d 1083, we publicly reprimanded an attorney who failed to render an accounting to his client, failed to place the disputed portion of a fee in a trust account, and failed to promptly refund the unearned portion of the fee. In light of Brigandi, the actual period of suspension of thirty days recommended by the board does not appear to be unreasonable for respondent’s three instances of similar misconduct.

Accordingly, we will suspend respondent from the practice of law for one year, with all but thirty days deferred, followed by a one-year period of unsupervised probation governed by the conditions set forth by the disciplinary board in its report. | /The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

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 Gerard N. Torry, Louisiana Bar Roll number 2150, be and he hereby is suspended from the practice of law for one year, with all but thirty days deferred, followed by a one-year period of unsupervised probation governed by the conditions set forth by the disciplinary board. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. 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.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . Of this sum, $15,000 was paid on behalf of Mr. Sias and $20,000 was paid on behalf of his co-defendant.

      . In November 2009, after the hearing on the formal charges, respondent refunded $15,000 to Earline Sias.

      . Although the committee noted respondent participated in the Louisiana State Bar Association's diversion program and completed Ethics School as a result of a 2000 disciplinary complaint, the committee nonetheless found he did not have a significant prior disciplinary record.

      . Respondent testified during the mitigation hearing that his son’s health problems and the financial uncertainty and stress associated with operating a solo practice without any support staff significantly impacted his ability to refund the unearned fees due his clients.

      . The board did not adopt the committee’s recommendation that respondent attend Ethics School, noting he had attended Ethics School in connection with his prior diversion. The board also declined to adopt the committee's recommendation that respondent be required to open a client trust account because he has already done so.

      .If a party seeks to withdraw its stipulations, the matter should be set for a formal hearing on the merits, at which time both parties shall have the right to call witnesses and to present evidence.