author: PER CURIAM. TORPY, J.,

text:
    ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellant, v. FARMLAND RESERVE, INC., Appellee.
    No. 5D10-1611.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    Stanley J. Niego and William H. Cong-don, Palatka, for Appellant.
    Thomas B. Drage, Jr., County Attorney, and John P. Lowndes, Assistant County Attorney, Orange County, Florida, Amicus Curiae, for Appellant.
    Scott J. Johnson, Suzanne E. Gilbert and Min K. Cho of Holland & Knight LLP, Orlando, Frank E. Matthews, Eric T. Olsen and Julie M. Murphy of Hopping, Green & Sams, P.A., Tallahassee, for Ap-pellee.
   PER CURIAM.

We are asked to review a judgment on the pleadings that construed flowage and storage easements over lands owned by Appellee. Because we determine that the easements are ambiguous in scope, we reverse and remand for further proceedings.

The easements provided in pertinent part that Appellant’s predecessor, its successors and assigns, had the right to use Appellee’s property “for the purpose of the flowage and storage of water on said lands, in the accomplishment of the water control program of the grantee....” Pursuant to the easements, Appellant’s predecessor constructed structures on Appellee’s land to impound a natural tributary, creating a reservoir. As a result of a perceived dispute about Appellant’s proposed use of the easements, Appellant filed an action seeking a declaration that the easements provide it “with the property interest necessary to utilize the Reservoir for public water supply,” an apparent change in Appellant’s use of the easements.

At a hearing on cross-motions for judgment on the pleadings, both parties argued that the easements could be construed as a matter of law because they were unambiguous. Despite repeated expressions of concern by the trial judge that extrinsic evidence was needed to determine the scope of the easements, both parties persisted in urging the trial court to construe the easements as a matter of law. Nevertheless, both parties offered extrinsic facts during their arguments to assist the trial court in construing what they claimed to be facially unambiguous documents. Although we are sympathetic to the plight of the trial court under these circumstances, we conclude that the construction of the easements at this procedural juncture was error. The intended scope of these easements cannot be discerned from the face of the documents without resorting to extrinsic evidence.

On remand, the trial court shall determine how Appellant intends to use the easements. We emphasize that, although the parties at times discuss the use of the water, which both agree belongs to the public, it is the use of the land that is the relevant consideration. Insofar as the proposed use of the land is concerned, Appellant’s complaint is woefully vague. Appellant cannot seek a declaration of its rights under the easements while keeping its intentions close to the vest. Once the intended use is determined, the trial court must consider any admissible extrinsic evidence to discern what the parties intended at the time the easements were granted. We specifically reject Appellant’s contention that these easements are “general and unlimited,” thereby permitting unrestricted use for any purpose.

If the material extrinsic evidence is not in dispute and is properly introduced in the record, the resolution of this case might not necessitate a trial. If some material facts are disputed, a trial may be conducted to resolve those disputed issues of fact.

REVERSED and REMANDED.

ORFINGER and JACOBUS, JJ., concur.

TORPY, J., concurs and concurs specially with opinion.

TORPY, J.,

concurring specially.

I agree with the opinion of the majority that the trial court erred in granting judgment on the pleadings. This happens all too often that both sides seek a ruling on what both claim to be an unambiguous document. Then, when the trial judge takes the bait, the losing side cries foul, claiming an ambiguity. Maybe the rule should be that if you argue to the trial court that a document is unambiguous, then you can’t have it the other way.

In any event, the second problem here is that the complaint is vague about what Appellant intends to do. Appellant filed a one-count complaint seeking a declaration from the trial court about an intended use of the easements, yet it only asked the court to declare that it has the “property interest necessary to utilize the Reservoir for public water supply.” The dilemma with this is that everyone concedes that the water belongs to the public, so the real question is whether Appellant’s easements permit it to construct whatever structures are needed to capture the water and convey it from the reservoir for whatever purpose. The intended use of the easements might also involve access to the reservoir for treatment or maintenance of the water. We don’t know. The point is that it is impossible for a court to make a meaningful declaration about the propriety of an objective such as this without knowing how the accomplishment of the objective will involve the use of the land. This is why the trial judge asked Appellant’s counsel so many questions. Although counsel finally answered the questions when pressed, acknowledging that Appellant might be putting a pipe in the lake, on appeal, Appellant takes issue with the trial judge for considering this fact. During oral argument, we asked Appellant whether its intended use might also involve pumping water into the lake from elsewhere in the river. Counsel’s affirmative reply was notably equivocal. Maybe the problem is that Appellant does not know what it needs. Maybe the vagueness of the complaint was an intentional strategy to get the camel’s nose in the tent, after which the rest of the camel would follow.

On the merits, it appears to me that Appellant might be rowing upstream in its battle to convince the court that this particular use was contemplated by the parties when the easements were granted. The only extrinsic evidence of what was intended will probably be the parties’ conduct since that time. The construction on this project was apparently substantially concluded over forty years ago. It consisted essentially of a dam to create a lake from a natural tributary. The tributary already “flowed” through the property. The flowage part of the easements was apparently given so that backed up water could flood surrounding lands. The storage part pertained to the lake itself. Nobody had in mind the use by Appellant’s predecessor of this reservoir to supply water for a utility. Neither Appellant, nor its predecessor, is a public utility. Since that time, until recently, Appellant never attempted to pipe water from the lake. The now-intended use is clearly a new use. The question is whether Appellant’s “water control program” in existence at the time the easements were granted contemplated this type of future use. This will have to be sorted out on remand. Hopefully, the lawyers will assist the trial court by stipulating to undisputed facts and crystallizing the disputed facts, if any, to facilitate the prompt resolution of this important case.

      . Whether Appellant's complaint was too vague to state a cause of action is not an issue on appeal.


source: Caselaw Access Project

author: JACOBUS, J.

license: Public Domain

text:
    Glenn A. GILLINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4155.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.

      Glenn A. Gillins, Gainesville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

Glenn A. Gillins appeals the trial court’s dismissal of his postconviction motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, as successive and time-barred. We conclude that the dismissal of the motion on the basis of untimeliness was incorrect, as was the trial court’s determination that Gillins’ claim of newly discovered evidence should fail. Therefore, this case is reversed and remanded for an evidentiary hearing.

In April 2007, following a jury trial, Gillins was convicted of a felony battery. The court sentenced Gillins to 10 years in prison as a prison releasee reoffender. Gillins appealed and his judgment and sentence were per curiam affirmed. Gillins v. State, 987 So.2d 90 (Fla. 5th DCA 2008). The mandate issued on August 18, 2008. Gillins subsequently filed his first rule 3.850 motion in which he asserted several claims of ineffective assistance of trial counsel. An evidentiary hearing was held on Gillins’ claim that counsel was ineffective for failing to list and call two alibi witnesses. At the evidentiary hearing, Gil-lins’ trial counsel testified that while an investigator with the Volusia County Public Defender’s Office was originally assigned to secure evidence to substantiate Gillins’ alibi defense, the investigation was referred to the Alachua County Public Defender’s Office, since the two alibi witnesses resided in that jurisdiction. Counsel explained that Gillins maintained he was in a certain Gainesville motel with these individuals when the battery was committed. The Alachua investigator was given the names of the two alibi witnesses and the contact information provided by Gillins. Trial counsel stated that nothing was developed by the investigation to substantiate Gillins’ alibi claims. Based on this testimony, the trial court denied Gil-lins’ first rule 8.850 motion, concluding that his counsel thoroughly investigated the alibi defense but could not prove it. Gillins did not appeal the denial of his initial rule 3.850 motion for postconviction relief.

On March 29, 2010, Gillins filed his second rule 8.850 motion. He thereafter filed a number of amendments and supplements to the motion, the last of which was filed on August 16, 2010. The trial court entered an order summarily dismissing the motion as untimely and successive. This is the order Gillins challenges in this appeal.

As an initial matter, Gillins’ second rule 3.850 motion was not time-barred. As mentioned previously, the mandate in Gil-lins’ direct appeal was issued August 18, 2008. Thus, Gillins’ second rule 3.850 motion, and its various amendments, were all filed within the two-year time limit set forth by rule 3.850(b). Nevertheless, we agree that, with the exception of one claim, Gillins’ new rule 3.850 motion contained successive claims and, therefore, it was properly dismissed by the trial court. However, the non-successive claim requires reversal. In that claim, Gillins asserted that trial counsel never attempted to contact his alibi witnesses, notwithstanding counsel’s testimony to the contrary at the evidentiary hearing on the prior rule 3.850 motion. Gillins explained that the prior evidentiary hearing was the first time he had heard that an investigator from Alachua County was responsible for confirming his alibi. After the hearing, Gillins made a public records request to the authorities in Alachua County. He discovered there was no record of any request to their office to investigate Gil-lins’ alibi witnesses and, hence, no investigation of his case was ever done.

Taking Gillins’ allegation as true, as we must, we find that he has shown a sufficient justification for not raising this precise claim in his prior postconviction motion. See Fla. R. Crim. P. 3.850(f). In essence, Gillins has raised a viable claim of newly discovered evidence. See generally Jones v. State, 591 So.2d 911 (Fla.1991). We note that the Alachua County Public Defender’s Office went beyond answering Gillins’ public records request — they used the information he gave them (which he had previously given trial counsel) to actually track down his alibi witnesses. Both witnesses stated that they had not been previously contacted by any investigator from any agency, and they both gave statements that would support Gillins’ contention that he was in Gainesville at the time of the alleged battery.

Thus, Gillins has made a prima facie showing that trial counsel failed to investigate his alibi and that he could not have known of counsel’s alleged deficient performance prior to his first rule 3.850 motion. As such, Gillins is entitled to an evidentiary hearing on this claim. We therefore reverse in part and remand for an evidentiary hearing on Gillins’ claim that counsel was ineffective for failing to investigate his alibi defense. We affirm the dismissal as to the other grounds.

AFFIRMED in part; REVERSED in part; and REMANDED for an evidentiary hearing.

MONACO, C.J. and ORFINGER, J., concur.


text:
    Robert HILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4313.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    Robert Hill, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Robert Hill appeals the summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Hill argued his habitual felony offender sentences were illegal because he lacked the requisite predicate felonies. Hill further asserted the trial court erred in relying on the pre-sentence investigation report to support the habitual felony offender enhancement. The trial court denied Hill’s motion, finding his claims were not cognizable in a rule 3.800(a) motion. We reverse.

To the extent that Hill’s motion challenged the procedure used to enhance his sentence, the trial court was correct that it was not cognizable under rule 3.800(a). However, to the extent that Hill claimed he did not have the predicate felonies required to support a habitual felony offender designation, his motion was cognizable under rule 3.800(a). See Bover v. State, 797 So.2d 1246, 1247 (Fla.2001) (“[WJhere the requisite predicate felonies essential to qualify a defendant for habitu-alization do not exist as a matter of law and that error is apparent from the face of the record, rule 3.800(a) can be used to correct the resulting habitual offender sentence.”). The trial court’s order did not include record attachments refuting this claim. Accordingly, this cause is reversed and remanded to the trial court for the attachment of those portions of the record that conclusively refute Hill’s claim that the requisite predicate felonies do not exist. See Rodriguez v. State, 919 So.2d 576 (Fla. 3d DCA 2006).

REVERSED and REMANDED.

TORPY and COHEN, JJ., concur.


author: PER CURIAM.

text:
    Hector L. RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4394.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    Hector L. Rivera, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The trial court summarily denied Appellant’s motion without attaching records or providing reasons. Perhaps the trial court believed the motion was successive because of the way Appellant labeled his motion. It is neither successive nor untimely. It is facially insufficient, however, but Appellant should have been given an opportunity to amend the motion. Spera v. State, 971 So.2d 754 (Fla.2007). The State properly concedes error.

REVERSED AND REMANDED.

SAWAYA, TORPY and LAWSON, JJ., concur.


text:
    Jesse Ronnie STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-18.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    Jesse R. Strickland, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Strickland appeals from the summary denial of his motion for post-conviction relief. Although Strickland has designated his motion as being filed pursuant to Florida Rule of Criminal Procedure 3.800, the trial court treated his motion as a rule 3.850 motion and denied same as untimely. We affirm, except as to Strickland’s claim that the trial court’s oral pronouncement of sentence with regard to costs conflicted with the written judgment.

The Florida Supreme Court has held that an alleged discrepancy between the orally pronounced sentence and the written judgment of sentence is cognizable in a Rule 3.800(a) motion to correct illegal sentence. Williams v. State, 957 So.2d 600 (Fla.2007). The State concedes that, as to this issue, reversal is required because the trial court failed to attach documentation to its order conclusively refuting Strickland’s claim.

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER, TORPY and EVANDER, JJ., concur.


text:
    Donna BROCK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-423.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    Donna M. Brock, Ocala, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 10-000130-CFMA, in the Circuit Court in and for St. Johns County, Florida. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, COHEN and JACOBUS, JJ., concur.


text:
    Hector CAMPOS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-607.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    Robert Wesley, Public Defender, and Kimberly A. LaSure, Assistant Public Defender, Kissimmee, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case numbers 07-CF-002255, 07-CF-002613, 07-CF-002616, and 07-CF-002617, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ORFINGER, EVANDER and JACOBUS, JJ., concur.


author: DAVIS, Judge.

text:
    John Miguel HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3546.
    District Court of Appeal of Florida, Second District.
    March 18, 2011.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

John Miguel Houston challenges his judgment and sentence for attempted second-degree murder, robbery, aggravated assault with a firearm, and two counts of carrying a concealed weapon. On appeal, he only argues that he is entitled to a new trial on the attempted second-degree murder count. Because the trial court erroneously instructed the jury with regard to that count, we reverse and remand for new trial only as to that count.

Houston robbed a man in the Ybor City area of Tampa. Houston did not brandish a weapon during the robbery. But as he attempted to leave, his victim called for police, and in response, Houston fired a gun at the victim from a distance of four or five feet. The victim was not hit by the shot.

In count one of the information, the State charged Houston with attempted first-degree murder. The jury returned a verdict of attempted second-degree murder on that count, and the trial court sentenced Houston to a minimum mandatory twenty years’ imprisonment, followed by ten years’ probation.

At trial, in conjunction with that count, the trial court instructed the jury on attempted first-degree murder, attempted second-degree murder, and attempted manslaughter by act. The standard jury instruction for attempted manslaughter that the court read to the jury was as follows:

To prove the crime of attempted voluntary manslaughter, the state must prove the following element[s] beyond a reasonable doubt: John Miguel Houston committed an act which was intended to corase the death of Frederick Powell and it would have resulted in the death of Frederick Powell except that someone prevented John Miguel Houston from killing Frederick Powell or he failed to do so. However, the defendant cannot be guilty of attempted voluntary manslaughter if the attempted killing was either excusable or justifiable as I have previously explained those terms. It is not an attempt to commit manslaughter if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating the defendant’s complete and voluntary renunciation of his criminal purpose.... In order to convict of attempted voluntary manslaughter, it is not necessary for the state to prove that the defendant had a premeditated intent to cause death.

(Emphasis added.)

Houston did not object to the instruction below, but on appeal he argues that it amounts to fundamental error in light of the Florida Supreme Court’s opinion in State v. Montgomery, 39 So.3d 252 (Fla.2010). In that case, the court determined that a previous version of the standard jury instruction for manslaughter was erroneous because it “required the jury to find that the defendant intended to kill the victim in order to convict Montgomery of manslaughter.” Id. at 257. In doing so, the court noted that section 782.087(1), Florida Statutes, the manslaughter statute, “does not impose a requirement that the defendant intend to kill the victim. Instead, it plainly provides that where one commits an act that results in death, and such an act is not lawfully justified or excusable, it is manslaughter.” Id. at 256. Here, Houston argues that the phrase “committed an act which was intended to cause the death of’ in the standard jury instruction for attempted manslaughter amounts to fundamental error because it similarly requires that the jury find that he possessed an intent to kill the victim in order to convict him of attempted manslaughter.

We agree with Houston that the phrase “committed an act which was intended to cause the death of’ impermissibly creates an intent-to-kill element in the crime of attempted manslaughter. , Section 782.07(1), Florida Statutes (2008), defines “manslaughter” as “[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification ... and in cases in which such killing shall not be excusable homicide or murder.” Section 777.04(1), Florida Statutes (2008), makes it a crime to “attempt[ ] to commit an offense prohibited by law [if] in such attempt [one] does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof.” Nothing in this statutory scheme suggests that the crime of attempted manslaughter requires an intent to kill. See Bass v. State, 45 So.3d 970, 971 (Fla. 3d DCA 2010) (reviewing jury instruction on attempted voluntary manslaughter that included element that “defendant committed an act, which was intended to cause the death of [the victim]” and finding error, “based on Montgomery,” in the giving of that instruction); Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009) (“[T]he standard jury instruction for attempted manslaughter by act ... adds the additional element that the defendant ‘committed an act intended to cause the death’ of the victim when attempted manslaughter by act requires only an intentional unlawful act.”); see also Gonzalez v. State, 40 So.3d 60, 62 (Fla. 2d DCA 2010) (“At oral argument the State conceded that, based on Montgomery, Gonzalez’s conviction for attempted second-degree murder must be reversed due to the ... standard jury instruction for attempted manslaughter by intentional act which was read to the jury. Thus, we must reverse for a new trial on the attempted second-degree murder conviction.”).

We do note that the Fourth District in Williams v. State, 40 So.3d 72, 73-75 (Fla. 4th DCA 2010), has concluded that the standard jury instruction on attempted manslaughter does not possess the same fatal flaw as the standard jury instruction on manslaughter because “[a]s the Second District explained [in Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007)], you cannot attempt to commit an unintentional act.” But we are not persuaded by the Fourth District’s application of our Hall language. It is true that in Hall this court stated the following:

The [supreme] court’s holding [in Taylor v. State, 444 So.2d 931 (Fla.1983),] that an intent to kill is an element of attempted manslaughter does not require a determination that an intent to kill is an element of manslaughter by act. An intent to kill is required to commit an attempted manslaughter because no person can attempt to cause an unintentional act.

Hall, 951 So.2d at 96. But this court included this statement in Hall in an attempt to distinguish Taylor from the facts at issue in Hall. The ultimate holding in Hall was “that a conviction for manslaughter by act does not require an intent to kill but only an intentional act that causes the death of a victim.” Id. As such, any discussion of the crime of attempted manslaughter in that case was nothing more than dicta. And while it may be true that no person can attempt to cause an unintentional act, a person can intend to commit an act, like firing a gun at another person, without intending to cause the death of that person.

We also note that it appears that Hall mischaracterized the intent element set forth in Taylor, as an “intent to kill.” See Hall, 951 So.2d at 96. In Taylor, the supreme court stated, “[T]here may be a crime of attempted manslaughter. We reiterate, however, that a verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act.” 444 So.2d at 934 (emphasis added).

The State does point out here that in 2008, the Florida Supreme Court affirmatively declined to eliminate the intent element from the standard jury instruction on attempted voluntary manslaughter. See In re Standard Jury Instrs. in Crim. Cases-Report No. 2007-10, 997 So.2d 403, 404 (Fla.2008) (“ ‘[A] verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act.’ ” (alteration in original) (quoting Taylor v. State, 444 So.2d 931, 934 (Fla.1983))). However, this refusal by the supreme court to amend the intent element of the attempted manslaughter standard jury instruction occurred well before Montgomery, and the issue that is squarely before us in the instant case is whether Montgomery renders the standard jury instruction on attempted manslaughter erroneous. As such, no matter what the supreme court’s reasons were for not amending the instruction in 2008, they are not applicable to this case.

We also agree with Houston that the giving of the instruction in this case amounted to fundamental error. In Montgomery, the supreme court stated:

Second-degree murder as a lesser included offense is one step removed from first-degree murder, and manslaughter as a lesser included offense is two steps removed from first-degree murder. In Pena [v. State, 901 So.2d 781, 787 (Fla.2005) ], we concluded that “when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.” We explained that
the significance of the two-steps-removed requirement is more than merely a matter of number or degree. A jury must be given a fair opportunity to exercise its inherent “pardon” power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.

39 So.3d at 259 (citation omitted). The court therefore concluded that in Montgomery’s case, “fundamental error occurred ... which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill [the victim].” Id. Applying this two-steps-removed analysis, the erroneous instruction here constitutes fundamental error.

We therefore reverse for a new trial on attempted second-degree murder. We otherwise affirm Houston’s convictions and sentences without comment.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and WALLACE, JJ., Concur.

      . The Florida Supreme Court currently has before it a proposal of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases to amend the standard jury instruction on attempted manslaughter by removing the phrase "intended to cause the death of (the victim)” and adding the word "intentionally” before "committed an act.” See Florida Supreme Court Publication Notice, available at http://www.floridasupreme court.org/decisions/probin/sc 10-2434_ PublicationNotice.pdf. If this proposal is approved by the supreme court, the new standard jury instruction on attempted manslaughter would instead read, "(Defendant) intentionally committed an act which would have resulted in the death of (victim) except someone prevented (defendant) from killing (victim) or [he][she] failed to do so.” Id.


text:
    C.P., Mother of K.Z.W. and K.L.W., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D10-3027.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.

      Paulina • Minelga, Daytona Beach and Jeffrey Deen and Lori D. Loftis, Office of the Criminal and Civil Regional Counsel, Altamonte Springs, for Appellant.
    Karla Perkins, Department of Children and Families, Miami, for Appellee.
    Wendie Michelle Cooper, Tavares, for Guardian ad Litem.
   PER CURIAM.

ON CONFESSION OF ERROR

Pursuant to Appellee’s confession of error, the order on appeal Placing Children in a Permanent Guardianship and Terminating Protective Supervision, is reversed and remanded to the trial court for the appropriate further proceedings.

REVERSED and REMANDED.

SAWAYA, ORFINGER and LAWSON, JJ. concur.


text:
    Jorge ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4091.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2011.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm, without discussion, Alvarez’s convictions for trespass and dealing in stolen property. However, we reverse his conviction for grand theft because the State’s evidence was insufficient to establish that the stolen items had a value of $300 or more. See Smith v. State, 955 So.2d 1227, 1229 (Fla. 5th DCA 2007) (State required to present competent evidence to prove value of stolen property at time of crime).

On remand, the trial court shall enter a judgment and sentence on Count IV on the lesser offense of petit theft of the second degree.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, LAWSON and EVANDER, JJ., concur.

      . §§ 812.014(1), (2)(c)l., Fla. Stat. (2008).


text:
    Joseph Lamar WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4775.
    District Court of Appeal of Florida, Second District.
    March 23, 2011.

      James Marion Moorman, Public Defender, and Lee Adam Cohen, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Joseph Wilson challenges the new sentences he received after he was granted relief through a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the new sentences as orally imposed but write to correct two clerical errors in the written judgments and sentences.

Wilson was originally charged under alternative theories with first-degree premeditated murder and first-degree felony murder of the same victim. When the jury returned a guilty verdict under both theories, the convictions were merged to reflect one count of first-degree murder, for which Wilson received a life sentence with a twenty-five-year minimum mandatory. He also was convicted of one count of robbery with a firearm, for which he received a fifteen-year sentence with a three-year minimum mandatory. Because the minimum mandatory sentences were run consecutively even though the crimes occurred as part of the same criminal episode, resentencing was ordered.

At resentencing, the court specifically stated that it was sentencing Wilson to life on his merged convictions for first-degree murder. The court’s written order also reflects the imposition of a single life sentence on these merged counts. Wilson’s life sentence was orally pronounced to run concurrently with his fifteen-year sentence for robbery with a firearm. The written judgment and sentence entered after re-sentencing do not reflect that the first-degree premeditated and first-degree felony murder convictions were merged. Rather, on the face of the written judgment and sentence it appears that Wilson is serving two life sentences on two separate first-degree murder convictions. Additionally, the sentences do not reflect that they were designated to run concurrently. There is nothing in the record to suggest that these were anything more than clerical errors. Accordingly, we affirm all aspects of Wilson’s sentences as orally imposed but remand for the trial court to enter written judgments and sentences that correctly reflect a single life sentence for the merged convictions and reflect that his life sentence and fifteen-year sentence are to run concurrently. See Parajon v. State, 50 So.3d 105 (Fla. 3d DCA 2010).

Affirmed; remanded.

SILBERMAN and VILLANTI, JJ., Concur.


author: CRENSHAW, Judge.

text:
    Jamael Deron LUCKETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3786.
    District Court of Appeal of Florida, Second District.
    March 23, 2011.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

In this Anders appeal, Jamael Luckett challenges his judgment and sentence for robbery with a firearm. We affirm his judgment and sentence without discussion, but vacate the trial court’s order striking Luckett’s motion to withdraw his plea.

After Luckett pleaded guilty and was sentenced by the trial court, Luckett filed a motion to withdraw his plea alleging coercion and misadvice by his trial counsel. Luckett filed a pro se notice of appeal the following day. Several months later, the trial court entered an order finding that it did not have jurisdiction to rule on Luck-ett’s motion because of the pending appeal in this court. Hence, the trial court struck the motion and directed Luckett to refile it after this court issued its mandate in the direct appeal.

Under Florida Rule of Appellate Procedure 9.020(h)(3),

a pending motion to correct a sentence or order of probation or a motion to withdraw the plea after sentencing shall not be affected by the filing of a notice of appeal from a judgment of guilt. In such instance, the notice of appeal shall be treated as prematurely filed and the appeal held in abeyance until the filing of a signed, written order disposing of such motion.

See also Clemons v. State, 3 So.3d 364, 365-66 (Fla. 2d DCA 2009) (“A timely motion to withdraw plea delays rendition of a defendant’s judgment and sentence until the trial court files a signed, written order disposing of the motion.”). In this instance, the trial court had jurisdiction to rule on Luckett’s motion, and Luckett raised cognizable claims under Florida Rule of Criminal Procedure 3.170(£). See Kegler v. State, 46 So.3d 1061, 1062 (Fla. 2d DCA 2010); Applegate v. State, 23 So.3d 211, 212 (Fla. 2d DCA 2009). And despite being represented by counsel at the time Luckett filed his motion, his pro se pleading could not be stricken as a nullity. See Sheppard v. State, 17 So.3d 275, 277 (Fla.2009). Likewise, any notice of appeal filed by either Luckett or his counsel did not signify that Luckett waived or abandoned his motion to withdraw plea. See Thompson v. State, 50 So.3d 1208, 1211 (Fla. 4th DCA 2010). Thus, the trial court erroneously struck Luckett’s motion. See Sharp v. State, 884 So.2d 510, 511 (Fla. 2d DCA 2004) (finding order dismissing motion to withdraw plea was erroneous where trial court had jurisdiction to consider the motion). Accordingly, we affirm Luckett’s judgment and sentence, but we vacate the order striking his motion to withdraw his plea. On remand, the trial court shall address Luckett’s motion on the merits and appoint conflict-free counsel if an evidentiary hearing is required.

Affirmed in part, vacated in part, and remanded with directions.

DAVIS and SILBERMAN, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: KHOUZAM, Judge.

text:
    WARRIOR CREEK DEVELOPMENT, INC., a Florida Corporation, and Jeffry Knight, Appellants, v. Joseph Redmond CUMMINGS, Appellee.
    Nos. 2D09-4600, 2D10-2044.
    District Court of Appeal of Florida, Second District.
    March 23, 2011.

      Timothy W. Weber and Joseph P. Kenny of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellants.
    Murray B. Silverstein of Shutts & Bowen LLP, Tampa, for Appellee.
   KHOUZAM, Judge.

In this consolidated appeal, Warrior Creek Development, Inc., and Jeffry Knight appeal a final order enforcing a settlement agreement and a subsequently entered final order awarding attorney’s fees and costs to Joseph Redmond Cummings. We conclude that the parties entered into a binding settlement agreement, but that a provision for an award of attorney’s fees and costs to the prevailing party in an action to enforce the settlement agreement was not one of the material terms agreed upon by the parties. Accordingly, we affirm the final order enforcing the settlement agreement and reverse the final order awarding attorney’s fees and costs.

Mr. Cummings and Mr. Knight were shareholders of Warrior Creek. A number of disputes arose between these parties with respect to their rights under the shareholder agreement, among other things. These disputes led to the filing of a complaint and counterclaim in the circuit court for Pinellas County, Florida, and related lawsuits in Taylor County, Florida. In November 2008, the parties, through their attorneys, agreed to settle all claims between them. The essential and material terms of the settlement were set forth in a detailed e-mail sent by Mr. Cummings’ attorney to Warrior Creek and Mr. Knight’s attorney on November 11, 2008. Their attorney agreed to the terms contained in the e-mail.

The terms of the agreement anticipated the preparation and execution of collateral documents. Although all essential and material terms of the settlement agreement were addressed in the e-mail, the attorneys thereafter agreed to draft a separate written settlement agreement to be included in the package of settlement documents. When this settlement agreement was drafted, it added a provision for an award of attorney’s fees and costs that was not contained in the agreed-upon terms in the November e-mail.

Warrior Creek and Mr. Knight were the first to sign the agreement that was included in the package of settlement documents. About six days later, however, their attorney sent an e-mail to Mr. Cummings’ attorney stating “[a]s Mr. Cummings has refused to sign the settlement papers, the deal is off,” and he asked Mr. Cummings’ attorney to return the original settlement documents to him. Mr. Cummings had not signed all the settlement documents before his attorney’s receipt of the communication, but he signed them within a day of this e-mail. The signed documents were then returned to Warrior Creek and Mr. Knight’s attorney.

Warrior Creek and Mr. Knight took the position that the November e-mail was merely a preliminary negotiation and that the settlement agreement contained in the package of settlement documents constituted an offer, which was either rejected by Mr. Cummings or revoked by Warrior Creek and Mr. Knight prior to Mr. Cummings’ acceptance. The trial court disagreed. It determined that the essential and material terms of the settlement were reflected in the November e-mail and concluded that Warrior Creek and Mr. Knight’s effort to revoke the settlement was thus ineffective because they had already agreed to the essential and material terms for settlement. It also found that there was no evidence that Mr. Cummings had refused to sign the settlement papers. The trial court noted that the settlement terms did not make time of the essence.

The trial court correctly applied the law to the evidence in finding that the parties had agreed upon all of the essential and material terms for settlement and that those terms were reflected in the November e-mail. See Don L. Tullis & Assocs., Inc. v. Benge, 473 So.2d 1384, 1386 (Fla. 1st DCA 1985) (explaining that “[t]o be enforced, the [settlement] agreement must be sufficiently specific and mutually agreeable on every essential element”). However, the trial court erred in awarding attorney’s fees and costs to Mr. Cummings because a provision for fees and costs was not included in the settlement agreement to which the parties assented. See, e.g., Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002) (reversing an order enforcing settlement “to the extent that it failed to mirror the terms of the actual settlement agreement”).

We thus affirm the final order enforcing the settlement agreement and reverse the final order awarding attorney’s fees and costs.

Affirmed in part; reversed in part.

ALTENBERND and CRENSHAW, JJ„ Concur.

      . The final order enforcing the settlement agreement was appealed in case number 2D09-4600 and the final order awarding attorney’s fees and costs was appealed in case number 2D 10-2044. These two appeals were consolidated.

      . The additional term provided for an award of attorney's fees and costs to the prevailing party in any action brought to enforce the settlement agreement.


author: PER CURIAM. BLACK, Judge,

text:
    Richard PANARIELLO and Ann Panariello, Petitioners, v. Hans S. PATE, Karolina Pate, his wife, and State Farm Mutual Automobile Insurance Company, a Florida corporation, Respondents.
    No. 2D10-810.
    District Court of Appeal of Florida, Second District.
    March 23, 2011.

      Caryn L. Bellus and Wendi M. Weiner of Kubicki Draper, P.A., Miami, for Petitioners.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Respondents Hans S. Pate and Karolina Pate.
    No appearance for Respondent State Farm Mutual Automobile Insurance Company.
   PER CURIAM.

Denied.

KELLY and WALLACE, JJ„ Concur.

BLACK, J., Dissents with opinion.

BLACK, Judge,

Dissenting.

In my opinion, Kash N’ Karry Food Stores, Inc. v. Smart, 814 So.2d 580 (Fla. 2d DCA 2002), requires granting the requested relief.


author: KELLY, Judge.

text:
    Barbara Anne RATLIFF, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4852.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dando Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Barbara Anne Ratliff appeals the judgment and sentence imposed following her no contest plea to keeping or maintaining a public nuisance in violation of section 823.10, Florida Statutes (2008). Because Ratliffs conduct did not violate the portion of section 823.10 that criminalizes maintaining a public nuisance, we reverse.

The State charged Ratliff with keeping or maintaining a “dwelling/structure” used for selling, distributing, or ingesting illegal substances in violation of section 823.10, which provides:

(1) Any store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever, which is visited by persons for the purpose of unlawfully using any substance controlled under chapter 893 or any drugs as described in chapter 499, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance. Any person who willfully keeps or maintains a public nuisance or willfully aids or abets another in keeping or maintaining a public nuisance, and such public nuisance is a warehouse, structure, or building, commits a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084.
(2) Any proceeding brought under this section shall be governed by chapter 60.

(Emphasis supplied). Ratliff moved to strike or dismiss the information claiming that the information failed to state a crime because a dwelling is specifically excluded from the part of section 823.10 which criminalizes the maintaining of a public nuisance. The State stipulated that the structure at issue was in fact a dwelling. The trial court denied Ratliffs motion based on the State’s argument that because a dwelling is a structure or, alternatively, a building it is subject to the criminal provision in the statute.

For the State’s argument to prevail here, we would have to read the last sentence of subsection (1) in isolation. However, we are required to read it within the context of the entire subsection in order to ascertain legislative intent. See Lamar Outdoor Advertising-Lakeland v. Dept. of Transp., 17 So.3d 799, 802 (Fla. 1st DCA 2009). Further, each statute “must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.” Id. (quoting Dept. of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265 (Fla.2008)). The second portion of section 823.10(1), which criminalizes keeping or maintaining a public nuisance, mentions only a “warehouse, structure, or building,” while the first portion of the statute, which explains what constitutes a “public nuisance,” lists “store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever.” This indicates that the legislature intended to consider “dwelling house,” “building,” and “structure” separately. See id. Because the statute prohibits the public nuisance in a “warehouse, structure, or building” and it is undisputed that the subject of this case was a dwelling, the statute does not apply to Ratliffs conduct. Accordingly, we reverse Ratliffs judgment and sentence and remand for the trial court to enter an order of dismissal.

Reversed and remanded.

WHATLEY and KHOUZAM, JJ., Concur.

      . Ratliff also entered a nolo contendere plea to sale of methamphetamme in a separate case. Ratliff does not challenge that judgment or sentence.

      . The trial court apparently treated Ratliff’s motion to strike the information as a motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4).


author: WALLACE, Judge.

text:
    Terry T. RAWLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3659.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.
   WALLACE, Judge.

In 1991, Terry T. Rawls pleaded nolo contendere to burglary and sexual battery. He was sentenced to five years in prison for the burglary and to life in prison for the sexual battery. On direct appeal, this court affirmed Mr. Rawls’ judgment and sentences. Rawls v. State, 596 So.2d 1255 (Fla. 2d DCA 1992).

In October 2001, Mr. Rawls filed a motion for postconviction DNA testing. At the time, Mr. Rawls’ nólo contendere plea disqualified him from obtaining the requested relief. See § 925.11(l)(a), Fla. Stat. (2001); Smith v. State, 854 So.2d 684, 685 (Fla. 2d DCA 2003); Stewart v. State, 840 So.2d 438, 438 (Fla. 5th DCA 2003). In March 2002, citing Mr. Rawls’ nolo contendere plea, the postconviction court denied his motion.

In July 2010, Mr. Rawls filed a second motion for postconviction DNA testing. The postconviction court entered an order denying the second motion based on its earlier order. Unfortunately, the postcon-viction court overlooked that the law now allows postconviction DNA testing in cases where a defendant has entered a plea of guilty or nolo contendere to a felony before July 1, 2006. § 925.11(l)(a)(2), Fla. Stat. (2010); McDole v. State, 46 So.3d 1154, 1155 (Fla. 1st DCA 2010); Menendez v. State, 41 So.3d 1066, 1067 (Fla. 3d DCA 2010); Glenn v. State, 954 So.2d 732, 733 (Fla. 1st DCA 2007); Lindsey v. State, 936 So.2d 1213, 1214 (Fla. 5th DCA 2006). Accordingly, Mr. Rawls’ nolo contendere plea is no longer a bar to his motion for postconviction DNA testing. The postcon-viction court erred in relying on its earlier order to deny Mr. Rawls’ motion.

For these reasons, we reverse the post-conviction court’s order denying Mr. Rawls’ motion for postconviction DNA testing and remand for further proceedings.

Reversed and remanded.

DAVIS and VTLLANTI, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Justin C. SNYDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5797.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Justin C. Snyder appeals three sentences entered after the trial court found him guilty of violating the terms of his probation. The State concedes that an error exists in two of the three sentences. We reverse those sentences but conclude that on remand the trial court can correct the error by striking the one-year term of probation in the two erroneous sentences.

Mr. Snyder pleaded no contest to burglary of a dwelling and two counts of grand theft in 2008. The trial court sentenced him as a youthful offender to a term of ten months’ incarceration followed by five years’ probation for the burglary and two concurrent terms of ten months’ incarceration followed by four years’ probation for each count of grand theft. After he served the terms of incarceration, he violated probation. Following an evi-dentiary hearing, the trial court revoked his probation and sentenced him to three concurrent terms of sixty months’ incarceration with credit for time served, followed by one year of probation.

Although the trial court was clearly attempting to impose a proper youthful offender sentence on violation of probation, it was not authorized to impose a sentence that was longer than the statutory maximum for a charged offense. See § 958.14, Fla. Stat. (2008). In this case, the sentence imposed for the burglary is a legal sentence. The concurrent sentences for the two counts of grand theft exceed the five-year statutory maximum for a third-degree felony. The State concedes that these two sentences exceed the statutory maximum.

Because the existing sentence for the burglary is a proper sentence and will require Mr. Snyder to serve a five-year term in prison, there is no need to remand this case to the trial court to consider a shorter term of imprisonment for the two counts of grand theft. On remand, the trial court shall strike the one-year period of probation as to these two offenses, leaving the concurrent five-year terms of imprisonment with credit for time served as the total sentence for these offenses.

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.


text:
    Gene Lenox GORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4001.
    District Court of Appeal of Florida, Second District.
    April 1, 2011.
   ALTENBERND, Judge.

Gene Lenox Gore appeals an order denying his motion for postconviction relief that was filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court dismissed this motion as successive. We reverse because the motion contains new and different grounds and addresses the performance of Mr. Gore’s attorney at a 2006 hearing on a violation of probation, whereas the first motion addressed the performance of a different attorney at Mr. Gore’s 2005 plea hearing. Nothing suggests that this second motion is an abuse of the procedure governing this rule. See Fla. R. Crim. P. 3.850(f).

Mr. Gore was charged in 2005 with grand theft. Our record is very limited. It appears that he pleaded to this charge in exchange for probation. He did not appeal any judgment or sentence imposed at that time.

In September 2006, the trial court entered a new judgment and sentence on violation of probation, sentencing Mr. Gore to three years’ incarceration. Mr. Gore appealed the judgment and sentence entered in 2006. This court affirmed the 2006 judgment and sentence and issued mandate in April 2008. Gore v. State, 978 So.2d 167 (Fla. 2d DCA 2008) (table decision). Mr. Gore appears to have fully served his three-year sentence.

While the direct appeal was pending in 2007, Mr. Gore filed his first postconviction motion alleging ineffective assistance of counsel at the time of his original plea. The trial court denied that motion in March 2009 with an order that informed Mr. Gore that he had the right both to amend his motion and to file an appeal. Mr. Gore did neither.

Approximately one year later, Mr. Gore filed his second motion for postconviction relief in April 2010, just within the two-year window, to challenge the proceedings on his violation of probation. This motion contains new grounds in that it addresses only the conduct of the attorney who represented Mr. Gore on the violation of probation — a different attorney than the one who represented him at the plea hearing and whose actions were the subject of the first motion.

It is noteworthy that ease law generally prohibits a defendant from filing a postconviction motion challenging a judgment and sentence during the pendency of a direct appeal that also challenges the same judgment and sentence. See Daniels v. State, 712 So.2d 765, 765 (Fla.1998); Clemons v. State, 3 So.3d 364, 365 (Fla. 2d DCA 2009); Bunkley v. State, 800 So.2d 663, 664 (Fla. 2d DCA 2001); Ortiz v. State, 768 So.2d 1177, 1177 (Fla. 2d DCA 2000). Thus, when Mr. Gore filed his first motion, he could raise issues arising from the 2005 judgment and sentence entered at his original plea hearing because they were not the subject of a pending direct appeal, but he was not entitled to raise issues related to the 2006 judgment and sentence entered on violation of probation because Mr. Gore’s direct appeal of that judgment and sentence was pending.

The trial court apparently did not understand the timing involved in these proceedings and erred in dismissing Mr. Gore’s second rule 3.850 motion as successive when this motion addresses entirely different matters than those addressed in the first. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

CRENSHAW and BLACK, JJ„ Concur.


author: WHATLEY, Judge.

text:
    Kathryn BREND, Appellant/Cross-Appellee, v. David BREND, Appellee/Cross-Appellant.
    No. 2D09-4268.
    District Court of Appeal of Florida, Second District.
    April 1, 2011.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant-Cross Appellee.
    Michelle A. Ralat and Michael L. Lundy of Older, Lundy & Weisman, Attorneys at Law, Tampa, for Appellee/Cross-Appel-lant.
   WHATLEY, Judge.

Kathryn Brend (the Wife) appeals and David Brend (the Husband) cross-appeals the final judgment of dissolution of marriage. We affirm all issues except for the Wife’s claim regarding child support obligations. The parties have one child who is now eight years of age. The Husband was ordered to pay the Wife $330.99 per month in child support. However, the trial court erroneously computed this amount based on the parties’ gross incomes, rather than their net incomes. See § 61.30(9), Fla. Stat. (2009); see also Finney v. Finney, 995 So.2d 579 (Fla. 1st DCA 2008). The Husband agrees that remand is appropriate. Based on the recalculation of child support, the trial court will need to review the uncovered medical and dental expenses for the minor child, which the trial court ordered be divided equally between the parties. The trial court will also need to determine the status of the tax deduction for the minor child for Internal Revenue Service purposes.

Accordingly, we affirm the final judgment of dissolution but reverse the award of child support and remand with directions consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and WALLACE, JJ., Concur.


author: CIACCIO, J.

text:
    Theodore LANGE v. ORLEANS LEVEE DISTRICT.
    No. 2010-C-0140.
    Supreme Court of Louisiana.
    Nov. 30, 2010.
    Rehearing Denied Feb. 4, 2011.

      Middleberg, Riddle & Gianna, Alan Dean Weinberger, New Orleans, for Applicant.
    Klotz & Early, Attorneys at Law, William Patrick Klotz, New Orleans, for Respondent.
   CIACCIO, J.

| jThis case concerns a decision of the Board of Commissioners of Orleans Levee District (“OLD”) to fire its chief executive. OLD dismissed its longtime employee by resolution after a public hearing on May 21, 1997. Plaintiff Theodore Lange appealed his termination to the Louisiana State Civil Service Commission for the City of New Orleans (“the Commission”), which ultimately ordered him demoted. The decision of the Commission was affirmed by the First Circuit Court of Appeal. Theodore Lange v. Orleans Levee Dist., 09-1255 (La.App. 1st Cir.12/23/09); 25 So.3d 252. We granted certiorari to determine the correctness of those decisions, and to determine whether OLD violated plaintiffs constitutional rights. Theodore Lange v. Orleans Levee Dist., 10-0140 (La.4/16/10); 31 So.3d 1068. For the reasons that follow, we find plaintiff was afforded a reasonable opportunity to respond to the charges lodged against him, and we therefore conclude OLD did not violate plaintiffs due process rights. Moreover, because we find plaintiff was dismissed for cause, we reinstate OLD’s decision to dismiss him.

J^FACTS AND PROCEDURAL BACKGROUND

OLD hired plaintiff in August of 1973, and he attained permanent status that year. Through a series of promotions, he became head of OLD’s accounting department. In 1993, he replaced the retiring managing director, a position plaintiff held until February 14, 1997, when he was suspended pending an investigation by the newly appointed OLD president, James Huey. By a letter dated April 14, 1997, Huey informed plaintiff that OLD proposed to “demote or possibly terminate” him because OLD had lost confidence in plaintiffs competence and ability to fulfill his duties. The letter enumerated thirteen charges and described their bases in detail. Those charges included:

1. Failing to timely seek abolishment of an assistant director position;
2. Failing to render annual performance ratings for department heads;
3. Rendering inaccurate advice on professional service contracts;
4. Spending funds without authorization;
5. Improperly instructing the president’s secretary to conceal conduct;
6. Failing to hire an internal auditor;
7. Inaccurately representing invoices;
8. Failing to respond timely to grievances;
9. Failing to hold meetings with department heads;
10. Failing to maintain fiscal responsibility;
11. Failing to represent the Board in a positive manner;
12. Failing to insure compliance with bond issuance terms;
13. Threatening department heads with discipline without justification.

The letter also informed plaintiff he could respond in writing or in person at a scheduled OLD meeting. Plaintiff and his retained counsel prepared a detailed written response to the charges, with numerous references to attached exhibits. Plaintiff was given the option of meeting privately with OLD during an executive session, but he chose to respond to the charges during a public meeting on May 21, 1997.

13At the outset of the May 21 meeting, OLD’s counsel announced the agency would allow plaintiff to confer with his attorney but that plaintiffs attorney would not be allowed to address OLD. OLD’s counsel also announced the Board had decided to limit plaintiffs presentation to thirty minutes. Plaintiff began to read from the prepared document, but he did not finish his presentation within the allotted half-hour, and he was forced to end his presentation. In his opening remarks, he portrayed himself as a blameless, faithful public servant whose reward was a politically motivated “witch hunt.” He derided the charges, which he described as “sorry excuses,” and lambasted Huey, whom he claimed had “manufactured” the allegations. Plaintiff eventually responded to six of the thirteen charges, at which time OLD’s counsel notified him that only five minutes remained. Plaintiff skipped ahead to the tenth charge and read his response to it during the time remaining. Once the thirty minutes had expired, Huey called for a motion on a pre-prepared resolution to terminate plaintiff. Plaintiff requested that his entire written response be submitted into the record, and OLD accepted it. Without deliberation, and apparently without reading the documents plaintiff submitted, OLD unanimously passed the resolution, which listed all thirteen charges as grounds for plaintiffs termination.

Several Board members later testified they perceived plaintiffs remarks as an inappropriate attack on OLD rather than an attempt to defend himself against the allegations. They described his remarks as a “tirade” and a “diatribe about himself’ that was not responsive to the charges. Several Board members also said plaintiffs attitude and demeanor influenced their decision to terminate him because they determined he displayed poor judgment and a lack of the leadership qualities they |,[believed their chief executive should possess.

Plaintiff appealed his termination to the Commission, which referred the case to a referee for trial. Thus began a protracted procedural odyssey, the details of which are not relevant to our decision today. Of particular significance, however, is the referee’s finding that OLD violated civil service Rule 12.7 because plaintiff “did not get to respond” to all the charges against him during his pre-termination hearing. Civil service Rule 12.7, which governs “pre-removal/pre-discipline procedure,” provides as follows:

No permanent employee may be removed or subjected to any disciplinary action, other than an emergency suspension, until he has been given oral or written notice of the proposed action and the reasons therefor, a description of the evidence supporting the proposed action and a reasonable opportunity to respond thereto.

Because the civil service referee determined OLD had violated this rule, he granted summary disposition to plaintiff on charges 7, 8, 9, 11, 12, and 13, dismissing them. In his written conclusions of law, the referee specifically rejected the notion that plaintiff “did not wisely use his time,” ruling the half-hour allotted for his response was inadequate. The Commission and court of appeal upheld this interpretation of Rule 12.7. The Commission determined that OLD “elected not to hear” plaintiffs response to all the allegations, and therefore found OLD’s action on all the charges improper. The Commission held the referee properly struck the charges to which plaintiff had not responded orally at the hearing, stating OLD’s actions offended “principles of fair treatment and due process.” The court of appeal found it “abundantly clear” Rule 12.7 was violated and that plaintiff “was not given a full opportunity to address the charges alleged against him.”

In his initial July 7, 1999, ruling, the referee found only charge 1 merited cause for disciplinary action, and he ordered plaintiff reinstated to his former position after |sa five-day suspension. OLD appealed the decision, and the Commission remanded the case to the referee. The referee issued another decision March 1, 2002, again finding OLD violated Rule 12.7 and ordering plaintiff reinstated. OLD appealed again, and the case was again remanded. Because the original referee was suffering from poor health, another referee conducted the trial upon remand. The second referee refused to consider the charges dismissed by the original referee. In her November 19, 2008, decision, she found OLD had proved charges 1, 2, 3, and 5; she also found OLD had partially proved charge 6. These incidents “reflect poor judgment and demonstrate [plaintiffs] unfitness to serve as Managing Director,” the referee wrote. “However, taken in context, these incidents are not cause for dismissal of a twenty-three year employee with an unblemished record.”

Notable among the second referee’s conclusions were her findings that OLD “had no basis for determining if the charges were true or not” and did not base plaintiffs termination on the enumerated charges. She found OLD did not fire plaintiff for political reasons; rather, she determined the “primary reason” OLD voted for his dismissal was that OLD Board members no longer wanted plaintiff to serve as their representative “because he handled himself so poorly during his pre-disciplinary hearing.” Although she found the “proven performance deficiencies adversely affected OLD’s operations and eroded its faith in its Managing Director,” the referee ultimately ordered plaintiff reinstated but demoted to the position of Account Manager 1. She also ordered OLD to pay plaintiff back pay and his attorney’s fees. OLD again appealed, and the Commission upheld the referee’s order on April 8, 2009. The court of appeal affirmed the Commission’s ruling on December 23, 2009. Lange, 25 So.3d 252. OLD then applied for a supervisory writ from this Court.

|fiLAW AND DISCUSSION

The Louisiana Constitution, like its federal counterpart, provides that no person shall be deprived of property except by due process of law. La. Const, art. I, § 2. As managing director of OLD, plaintiff was a permanent, classified civil service employee, and an employee who has attained such status has a property interest in keeping his job. La. Const, art. X § 8(A); Murray v. Dep’t of Revenue and Taxation, 504 So.2d 561, 564 (La.App. 1st Cir.1986). Therefore, plaintiff could not be terminated without due process of law. As a threshold matter, we note civil service Rule 12.7 embodies this procedural safeguard. This Court heretofore has not interpreted Rule 12.7, but lower courts have recognized the rule codifies a principle elucidated in Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), i.e. due process entitles an employee threatened with termination to notice of the charges lodged against him, and an opportunity to tell his side of the story before termination. Rule 12.7 codifies the Loudermill decision, and we analyze this case accordingly.

Plaintiff’s due process rights

The Civil Service Commission has the exclusive authority to decide all cases of employee termination. La. Const, art. X, § 12(A). The Commission’s decision is subject to review on any question of law or fact. La. Const, art. X, § 12(B). In our review of the Commission’s ruling that OLD violated Rule 12.7, we are mindful that due process is by nature an imprecise ideal, the contours of which are often difficult to ascertain. This is so because its requirements vary according to circumstance. Driscoll v. Stucker, 04-0589 (La.1/19/05); 893 So.2d 32, 43. Due process encompasses the differing rules of fair play which through the years have become 17associated with different types of proceedings. Id. We therefore do not aspire to fix the boundaries of due process, which are inherently flexible and must remain so. Our decision today should not be read otherwise. However, due process does not lack fundamental imperatives, one of which is a reasonable opportunity to respond to charges lodged against an individual. It is undisputed that plaintiff received written notice of the charges against him, including a description of the reasons in support thereof. Therefore, the central question in this case is whether the plaintiff was afforded an adequate opportunity to respond to the charges.

Plaintiff received notice of the charges April 14, 1997, and his hearing was held May 21, 1997, which gave him more than thirty days to prepare his response. A pre-termination hearing, though obligatory, need not be elaborate or evidentiary. Loudermill, 470 U.S. at 545, 105 S.Ct. 1487. The purpose of the hearing is not to determine with certainty whether termination is appropriate; instead, the hearing should have served as “an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” Id. at 545-546, 105 S.Ct. 1487. When a civil service employee is entitled to a full evidentiary hearing after termination, and retroactive relief such as reinstatement is available, pre-termination due process is satisfied by notice and an opportunity to respond. Haughton Elevator Div. v. State, Through Div. of Admin., 367 So.2d 1161, 1165 (La.1979). In other words, only the barest of a pre-termination procedure is required when an elaborate post-termination procedure is provided. Dep’t Pub. Safety and Corr. v. Savoie, 569 So.2d 139, 142 (La. 1st Cir.1990) (emphasis added).

After reviewing the record in this case, we find plaintiffs pre-termination hearing complied with this requirement. The hearing provided OLD with an 1 ^opportunity to determine whether reasonable grounds existed to support plaintiffs charges and termination. Although plaintiff disputed the charges, he did not show they were groundless. Although plaintiff submitted documents in support of his claims, his hearing was not eviden-tiary in nature. Therefore, it is immaterial whether Board members reviewed the documents before voting on his termination. The referee’s conclusion that OLD “had no basis for determining whether the charges were true or not” is inaccurate and reflects a misunderstanding of what process was due plaintiff. The record reflects Board members received copies of the charges, prepared by a law firm, along with documentary support for them before the hearing. Although at least one member acknowledged he did not review the materials beforehand, the majority said they did. The charges and the plaintiffs response to them formed the basis for OLD’s determination that the charges were reasonably grounded in fact, not whether the charges were indisputably true. The pre-termination hearing “need not definitively resolve the propriety of the discharge.” Loudermill, 470 U.S. at 545, 105 S.Ct. 1487. Rarely would an employer be able to determine the truth of allegations conclusively at a pre-termination hearing, where evidence is not required and may not be available. OLD was not required to resolve the propriety of plaintiffs discharge at his hearing. OLD was required to find reasonable grounds to believe the charges lodged against plaintiff were true, not whether he was guilty of them. The thirteen charges listed above were prepared by a law firm at Huey’s request, and they were supported by documents prepared by OLD staff. In our review of the record, we cannot say OLD lacked reasonable grounds to believe the allegations, and Board members’ testimony reflects their collective belief in the charges. Therefore, the pre-termination hearing served adequately as an initial check against a mistaken discharge.

lnWe also disagree with the referee’s conclusion that OLD’s “primary reason” for terminating plaintiff was his demeanor at the pre-termination hearing. The record reflects plaintiffs behavior strongly influenced OLD’s decision, but only two Board members indicated that consideration was predominant, and they testified that other factors informed their decision. We interpret OLD’s consideration of plaintiffs attitude as an appropriate assessment of his credibility as well as the grounds for the charges. Although it is true an employer’s decision to dismiss an employee after a pre-termination hearing must be based on the charges presented, not on the employee’s conduct at the hearing, the two may be related. For example, an employee’s failure to refute or address a charge may, under some circumstances, be interpreted as an indication of guilt, especially if he appears evasive. To the extent charges bear on an employee’s character, his conduct at the hearing may demonstrate the grounds for that charge. It is apparent OLD voted to terminate plaintiff not solely because of his behavior at the hearing, but because its members perceived certain traits of plaintiff — poor judgment, lack of leadership, incompetence — that to them confirmed reasonable grounds for the charges.

Plaintiff’s opportunity to respond

The issue of whether plaintiff was given a reasonable chance to respond is somewhat complicated by the time limit imposed on his presentation. Although plaintiff argued the time limit was arbitrary, Board members testified it was imposed based on the duration of previous hearings and the unusual circumstance of having the hearing in a public meeting. Sister Kathleen Cain said she understood pre-termination hearings typically lasted 15 to 20 minutes and “thirty minutes seemed reasonable at the time ... We said, ‘Let’s give thirty minutes. We’ve got to have some structure for this to occur.’ Because we wanted to keep this — to be accomplished |inin an orderly fashion.” Huey acknowledged that no time limit had been imposed in a pre-termination hearing held two weeks before plaintiffs, but he cited the different circumstances of that hearing, which was held in his office privately. In other hearings at public meetings, when no time limit was set, “things got out of control,” Huey said. “We didn’t know what to expect.” The time limit was imposed to provide an endpoint to the presentation. It did not limit what plaintiff said, only how long he would have to say it.

Because plaintiff had not finished when time ran out, OLD did not hear his response to charges 7, 8, 9, 11, 12, or 13. It does not follow, however, that OLD was unable to establish whether reasonable grounds existed to support those charges. As the referee and Commission noted, several of the charges are interrelated, and the basis for one may have provided a basis for another. Charge 10, for example, failure to maintain fiscal responsibility, encompasses the more specific allegations in charges 4, spending funds without authorization, and 6, failing to hire an internal auditor. We find it was reasonable for OLD to conclude the written reasons for the charges and documentary support therefor, coupled with plaintiffs failure to address them, provided a reasonable basis to believe they were true. Although OLD essentially did not hear plaintiffs side of the story on five charges, we fault plaintiff for that shortcoming. He knew when he began speaking to OLD that he had thirty minutes to conclude his presentation. Had he possessed particularly strong arguments to refute the latter charges, he could have abbreviated his response to the former charges. Because he did not address several charges in the time provided, OLD reasonably concluded he was unable to show they were groundless. The law required OLD to provide plaintiff with an opportunity to respond to the charges; the law did not require his response. OLD gave plaintiff thirty minutes to respond, and he used them. I^Except for brief interjections, plaintiff was not interrupted and was permitted to speak as he chose. Rule 12.7 requires an employee such as plaintiff be given a “reasonable opportunity to respond.” The half-hour allotted for plaintiffs response was his opportunity, and we cannot say the time allotted was unreasonable.

As an aside, plaintiff contended in briefs and at oral argument that he was taken aback when OLD informed him his attorney would not be allowed to speak for him at the hearing. This allegedly so discombobulated him that he struggled to read his attorney’s notes and failed to present a composed response. We find this argument disingenuous. Before plaintiffs presentation at the hearing, plaintiffs attorney was permitted to advance legal arguments about why he should be allowed to speak for plaintiff, and he referred to a May 8 letter that informed him he would not be permitted to speak for plaintiff. This demonstrates plaintiffs attorney was well aware his client would be required to present his response personally. Moreover, the transcript demonstrates plaintiff read almost verbatim from a prepared document — the same document submitted into the record. Therefore, any lack of preparation by the plaintiff is not for want of notice, in any respect, except the thirty-minute restriction.

Our review of the jurisprudence in this area reveals no decisions on the propriety of limiting an employee’s response time in a pre-termination hearing, and we do not rule on that propriety here. We do not imply a half-hour will be adequate in every hearing; nor do we believe thirty minutes was sufficient time for plaintiff to respond to thirteen charges in detail. However, we reject the notion that plaintiff could not present a cogent and precise initial response to each of those thirteen charges within thirty minutes. Skilled and unskilled orators alike routinely compose intricate arguments during narrow windows of allotted time before this Court. Although plaintiff is not a lawyer, one need not be a professional speaker to make | ^several points in a short time. The success of lawyers at oral argument is generally the strength of their advocacy, not their ability to address myriad points in detail. According to the record, OLD set forth the time limit to provide structure to the hearing. A pre-termination hearing must balance the interests at stake: the employee’s interest in keeping his job, the employer’s interest in the “expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination.” Loudermill, 470 U.S. at 542-543, 105 S.Ct. 1487. We consider plaintiffs interest in keeping his job in light of the substance of his comments. We also consider OLD’s interest in a avoiding disruption and holding an expeditious hearing in public. Given the totality of the circumstances, we find the half-hour limit was a reasonable restriction.

To permit employees open-ended responses at pre-termination hearings, especially at a public meeting, would enable disgruntled workers to launch endless rhetorical attacks and filibuster their own disciplinary proceeding, transforming due process into an opportunity for rambling protest. It undoubtedly would lead to unproductive and unfocused digression. We are guided in this by the principle that a pre-termination hearing must balance the interests at stake. We cannot say OLD failed to balance those interests by affording plaintiff thirty minutes to respond. Several Board members said they would have extended the time allotted for plaintiffs presentation if they had believed it was warranted. However, Board members perceived his remarks as unresponsive, and so they considered an extension of his time unnecessary.

Several Board members said they had “heard enough” within the half hour, testifying they found cause for plaintiffs dismissal in the seven charges he addressed, regardless of the latter six. This was improper because the pre-prepared resolution Imfor which OLD voted, resulting in plaintiffs termination, listed all thirteen charges as the basis for their action. However, this mistake is of no moment because OLD found cause for dismissal among the first seven charges, and we agree that cause existed therein. Regardless of individual Board members’ testimony years after the vote, the resolution and unanimous vote demonstrate OLD terminated plaintiff based on all thirteen charges. As discussed above, OLD found a reasonable basis for all the charges despite the fact that plaintiff did not address each of them directly.

An employee’s opportunity to present reasons why he should not be terminated can be either in person or in writing. Loudermill, 470 U.S. at 547, 105 S.Ct. 1487. Plaintiff prepared a written response before his pre-termination hearing, then proceeded to read it, as was his right. However, he could have chosen to submit the written response in advance of the hearing, giving OLD ample time to review his response before the matter came to a vote. The fact that plaintiff apparently prepared his document with an eye toward post-termination appeal underscores another aspect of due process. Loudermill indicates a pre-termination hearing need not be elaborate when an employee has access to post-termination administrative procedures. Because he was a civil service employee, plaintiff was entitled to administrative and judicial review of OLD’s termination of him. Because he was entitled to a post-termination trial, the law required his pre-termination hearing to be a minimal check against unfairness.

In summary, plaintiff received adequate due process. He was given detailed descriptions of the reasons for the charges against him in writing. He received this notice 36 days before his hearing. He chose to respond in a public meeting, which OLD permitted. Plaintiffs pre-ter-mination hearing was held before a board of directors, giving him the added benefit of multiple votes rather than the singular determination of one person. OLD gave plaintiff thirty minutes to respond, which | Hwas enough time for him to address each charge. However, because he read a series of caustic remarks that did not respond to any specific charge, then responded at length to each, plaintiff did not have enough time to read his full response. We conclude that plaintiffs pre-termination hearing did not violate civil service Rule 12.7. The civil service referee’s conclusion to the contrary was clearly wrong, and the court of appeal erroneously upheld the Commission’s ruling.

Finding of cause for termination

Because charges 7, 8, 9, 11, 12, and 13 were dismissed based on an erroneous interpretation of Rule 12.7, those charges did not factor in the referee’s decision to demote, rather than terminate, plaintiff. Although those charges, if proven, may have led the referee to a different conclusion, we need not consider them here because we find the Commission abused its discretion in deciding the proven charges did not amount to cause for termination.

In determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, a reviewing court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. Bannister, 666 So.2d at 647. “Cause” for termination of an employee includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Id. The following summarizes the second referee’s findings with regard to the charges she determined OLD had proved, i.e. charges 1, 2, 3, 5, and partially 6: When Huey sought plaintiffs help in abolishing the assistant managing director position, plaintiff gave incorrect information and failed to tell Huey what he wanted could not be accomplished; plaintiff gave incorrect advice to Huey about approving professional services contracts, causing Huey to approve them illegally; plaintiff failed to rate two department heads for two years; plaintiff prepared | ^uncooperative, undiplomatic responses to the Legislative Auditor; and plaintiff instructed Huey’s secretary not to tell anyone he had asked her for a copy of a federal subpoena. After determining these charges had merit, the referee concluded these incidents demonstrated plaintiffs unfitness to serve as managing director. As she reasoned:

A part-time Board has to be able to rely on its full-time Chief Executive Officer to tell the President when he knows something the President wants cannot be accomplished, to seek formal legal opinions on important legal issues, to provide staff feedback on their performance via service ratings, to refrain from actions that engender distrust, and to correspond diplomatically. However, taken in context, these incidents are not cause for dismissal of a twenty-three year employee with an unblemished record.

We disagree with this conclusion only in the referee’s determination the offenses were not grounds for termination. To hold otherwise ignores the nature of the position plaintiff occupied as chief executive and usurps OLD’s discretion as his appointing authority. According to Article X of OLD’s bylaws, the managing director’s responsibility “shall be to execute the policies and projects of the Board as a prudent administrator.” Although this phrase does not explicitly define the position as having a fiduciary capacity, it suggests the managing director has a fiduciary relationship with OLD. The word “fiduciary,” as a noun, means one who holds a thing in trust for another, a trustee; a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking. Scheffler v. Adams, 2006-1774 (La.2/22/07); 950 So.2d 641, 647. The Uniform Fiduciaries Law, which appears in the Civil Law Aneillaries under Code Title XV — Of Mandate, defines fiduciary as including an officer of a public corporation. The defining characteristic of a fiduciary | lf,relationship, therefore, is the special relationship of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor. Id. As OLD’s managing director, plaintiffs employment by Huey and OLD was a special relationship of confidence. The aforementioned offenses demonstrate plaintiff violated that confidence to a degree from which OLD reasonably could determine not only that plaintiff was unfit to serve as managing director but was unfit to serve in any position.

According to the referee, OLD proved charge 5, which involved plaintiffs attempt to conceal a request he made of Huey’s secretary. On February 6, 1997, a federal grand jury subpoena was delivered to Huey’s office. The subpoena was addressed to “any authorized representative” of OLD, but plaintiff was not authorized to accept for OLD. The president’s secretary contacted Huey, who authorized her to accept on his behalf. Plaintiff asked the secretary to give him a copy of the subpoena but not to inform Huey that he requested the copy. The secretary informed Huey of the request, and the president instructed her to give plaintiff a copy. The record does not reveal plaintiffs motive in seeking to conceal his interest in the subpoena, but it ultimately is immaterial. Whether it was nefarious or not, plaintiffs conduct reveals a troubling lack of candor. Although this charge alone may not be a terminable offense, it was a serious infraction because it demonstrated a breach of fiduciary duty. Considered in connection with plaintiffs inaccurate advice both on renewing contracts and abolishing the assistant managing director position; his failure to provide performance reviews; and his disrespectful letters to the Legislative Auditor, plaintiffs conduct was prejudicial to the public service involved and detrimental to its efficient operation. Therefore, the totality of the offenses leads us to conclude OLD terminated plaintiff for cause.

117Curiously, although the referee found all these violations proven, she determined they were not cause for dismissal of a 23-year employee with a clean record when “taken in context.” Although longtime employment and lack of prior discipline may be mitigating factors in the determination of an employee’s punishment, plaintiffs unblemished history with OLD is overshadowed by the gravity of the charges against him and the distrust they engendered. That eroded confidence is the proper context in which to consider these charges. This Court and other reviewing courts should not second-guess an appointing authority’s decisions; they should intervene only when decisions are arbitrary and capricious or characterized by an abuse of discretion. See Bannister v. Dep’t of Streets, 95-0404 at 8 (La.1/16/96); 666 So.2d 641, 647. Neither should the New Orleans Civil Service Commission serve as a de facto pardon board of an appointing authority’s discipline. Termination of a longtime employee may be harsh, but sympathy is not a legal standard. The referee found OLD proved several of its charges, and those charges provided a rational basis for concluding the imposition of the sanction of termination was not arbitrary and capricious. Consequently, we pretermit discussion of the allegations the referee did not consider, viz. charges 7, 8, 9,11,12, and 13. Because we find OLD had cause for plaintiffs termination, consideration of additional grounds is unnecessary.

CONCLUSION

Because OLD provided plaintiff with notice of the charges against him, detailed reasons for the charges, and a reasonable opportunity to respond to them, the Commission’s finding that OLD violated civil service Rule 12.7 — and, by extension, plaintiffs due process rights — was erroneous. Because OLD terminated plaintiff for cause, the Commission’s decision to reinstate him was an abuse of discretion. The | ^decisions of the Commission and the court of appeal are hereby reversed.

REVERSED.

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

      . The plaintiff's title at the time of his termination was managing director, but it is undisputed that the employee in this position served as the Board’s foremost officer.

      . A civil service employee who has gained permanent status cannot be subjected to disciplinary action by his employer except for cause expressed in writing. La. Const. Art. X § 8(A).

      . Voting for the resolution were OLD Commissioners Robert Smith Lupo; Patricia Harris; Sister Kathleen Cain; Ellen Hazeur-Dis-tance; James Livingston; Marlin Gusman; and President James Huey. Commissioner Victor Landry was not present at the meeting, but later testified that he probably would have voted for plaintiff's dismissal.

      . See, e.g., Danna v. Dep’t of Transp. and Dev., 2008-1275 (La.App. 1 Cir. 2/13/09); 2009 WL 385581 (unpublished).