author: KELLUM, Judge.

text:
    Jerry McINTOSH II v. STATE of Alabama.
    CR-09-0579.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.
    Rehearing Denied Dec. 10, 2010.

      Mose Lee Sudduth, Jr., Vernon, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Jerry McIntosh II, pleaded guilty to one count of unlawful possession of methamphetamine, a violation of § 13A-12-212, Ala.Code 1975. The trial court sentenced McIntosh to a term of 10 years’ imprisonment; the trial court split the sentence and ordered McIntosh to serve 15 months’ imprisonment followed by 5 years’ supervised probation. The trial court also ordered McIntosh to pay a $1,000 assessment pursuant to the Drug Demand Reduction Act, § 13A-12-280 et seq., $100 to the Forensic Science Trust Fund, an assessment to the crime victims’ compensation fund, and court costs.

Before pleading guilty, McIntosh filed a motion to suppress evidence seized from the search of his residence on the ground that the affidavit upon which the search warrant was issued was deficient. Specifically, McIntosh argued that the affidavit upon which the search warrant was issued was not based upon “fresh” information and, thus, did not establish probable cause.

At the hearing on the motion to suppress, the trial court considered the following evidence. On October 31, 2007, Deputy Ivan Bryant of the Lowndes County, Mississippi, Drug Task Force telephoned Officer Claude Michael Shackelford of the 24th Judicial Circuit Drug Task Force to inform him that a confidential informant had told Deputy Bryant that McIntosh was manufacturing methamphetamine at his home in Vernon, Alabama. The confidential informant had told Deputy Bryant that McIntosh had a Styrofoam cooler underneath a camper behind a barn on McIntosh’s property and that McIntosh also had methamphetamine in his house. Deputy Bryant told Officer Shackelford that he had received the information from the confidential informant within the preceding 24 hours. After receiving this telephone call, Officer Shackelford prepared the following affidavit in support of his application for a search warrant of McIntosh’s property:

“Your affiant, as an Agent with the 24th Judicial Drug and Violence Crime Task Force and having served in that capacity for a total of one year, does hereby request issuance of a residential search warrant. Prior to serving with the 24th Judicial Drug and Violence Crime Task Force I served as Chief of Police in the City of Sulligent, Alabama for two years and as a police officer for the City of Sulligent for 9 years. I have numerous drug arrests and convictions in my career as a law enforcement officer.
“On 10-31-07 I received a call from Lowndes County narcotic Officer Ivan Bryant of a Jerry McIntosh manufacturing Methamphetamines at his residence and in a barn and camper behind his house in Vernon Alabama. The information came from a credible confidential paid informant who has [given] credible information in the past and [has] made numerous arrests with [sic]. [The confidential informant] advised that Jerry McIntosh and a guy named Robert has a Styrofoam cooler underneath a camper behind the barn and that Jerry McIntosh has Methamphetamines in his residence. The information is fresh within the last 24 hours.
“Also, I have received information from credible sources in the past that Jerry McIntosh is involved with the manufacture of Methamphetamines.
“Furthermore, based on the information obtained through my investigations, I believe there to be stored at [a specific address] in Vernon, Alabama and being described as a single story tan brick house a quantity of Methamphetamines, other illegal narcotics, drug paraphernalia, and chemicals and components used in the manufacture of Methamphet-amines.”

(Supp. C. 2.) At 10:20 p.m. on October 31, 2007, Officer Shackelford along with other members of law enforcement executed the search warrant on McIntosh’s residence during which they recovered the narcotics underlying McIntosh’s guilty-plea conviction.

Officer Shackelford testified that other officers within the drug task force had heard that McIntosh was manufacturing methamphetamine at his residence, but he explained that he had learned that information before talking with Deputy Bryant. Officer Shackelford also testified that he had worked with Deputy Bryant on numerous narcotics cases in the area and that Deputy Bryant had told Officer Shackelford that the informant from whom he received the information regarding McIntosh was reliable.

On cross-examination, Officer Shackel-ford said that he could not recall specifically asking Deputy Bryant about the “freshness” of the information he had received from the confidential informant; however, on re-direct examination, Officer Shackel-ford explained that, although he did not have an independent recollection of discussing the “freshness” issue, the entry in the affidavit — “[t]he information is fresh within the last 24 hours” — would have been recorded immediately after his conversation with Deputy Bryant. Officer Shackelford testified that he would not search a residence for narcotics unless he had received information regarding narcotics being present at the residence within a “fresh time period.” (R. 34.) Additionally, Officer Shackelford explained that he began working on the application for the search warrant as soon as he received the telephone call from Deputy Bryant. Nevertheless, Officer Shackelford did not know when the confidential informant had acquired the knowledge regarding McIntosh’s involvement with narcotics.

Officer Shackelford could not recall discussing with the magistrate who issued the search warrant any issue not included in the affidavit. He also could not remember being asked any questions regarding the affidavit when he submitted the application for the search warrant to the issuing magistrate.

T.R., the confidential informant who had provided the information regarding McIntosh to Deputy Bryant, also testified at the suppression hearing. T.R. explained that on October 31, 2007, she went over to McIntosh’s residence and overheard a conversation between McIntosh and two men, one named Robert and another Junior, about “wanting to cook dope.” (R. 44.) T.R. explained that they went outside behind a camper and McIntosh pointed to a cooler and indicated that they had everything they needed to manufacture the narcotic, but that he needed the man named Junior to actually “cook it for [McIntosh].” (R. 44.) T.R. also testified to seeing drugs while inside the house. According to T.R. she telephoned Deputy Bryant as soon as she left McIntosh’s residence.

After hearing arguments from the State and McIntosh regarding the freshness of the information included in the affidavit in support of the search warrant, the trial court denied McIntosh’s motion to suppress. McIntosh then pleaded guilty, but he specifically reserved the right to appeal as to whether the trial court had erred by denying his motion to suppress. This appeal followed.

On appeal, McIntosh argues the that the trial court erred in denying his motion to suppress. Specifically, McIntosh contends that the affidavit underlying the search warrant was constitutionally deficient on the ground that it did not include information regarding when the confidential informant learned the information she reported to Deputy Bryant.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, and it provides that search warrants shall be issued only upon a finding of probable cause. In Ex parte Green, 15 So.3d 489 (Ala.2008), the Alabama Supreme Court explained:

“Thus, ‘[a] search warrant may only be issued upon a showing of probable cause that evidence or instrumentalities of a crime or contraband will be found in the place to be searched.’ United, States v. Gettel, 474 F.3d 1081, 1086 (8th Cir.2007). Moreover, ‘ “[sufficient evidence must be stated in the affidavit to support a finding of probable cause for issuing the search warrant,” and “[t]he affidavit must state specific facts or circumstances which support a finding of probable cause[;] otherwise the affidavit is faulty and the warrant may not issue.” ’ Ex parte Parker, 858 So.2d 941, 945 (Ala.2003) (quoting Alford v. State, 381 So.2d 203, 205 (Ala.Crim.App.1979)).
“‘A probable cause determination is made after considering the totality of the circumstances.’ Gettel, 474 F.3d at 1086. To pass constitutional muster, ‘the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued’ United States v. Greany, 929 F.2d 523, 524-25 (9th Cir.1991) (emphasis added). Thus, ‘[t]he police will ... encounter problems of “staleness” of their information if they delay too long in seeking a search warrant.’ United States v. Watson, 423 U.S. 411, 450 n. 14 (1976).”

15 So.3d at 492.

In arguing that the affidavit underlying the search warrant was constitutionally deficient, McIntosh relies on Lewis v. State, 589 So.2d 758 (Ala.Crim.App.1991), and Nelms v. State, 568 So.2d 384 (Ala.Crim. App.1990). In Green, a case that is factually similar to the one at hand and that also relies upon Lewis and Nelms, the Alabama Supreme Court addressed the same question and held that an affidavit in support of a search warrant that stated, in part, “I am Offficer] Thomas Flathman of the Dothan Police Department and I have received information from a confidential informant that Jeff Green is manufacturing and selling methamphetamine inside of the residence and in the shed beside of the residence” was insufficient to establish probable cause. The Court explained:

“All three cases cited by Green involved motions to suppress evidence of controlled substances discovered in the execution of search warrants supported by affidavits lacking information sufficient to determine whether the information provided to, and by, the affiant was current. In Thomas [v. State, 358 So.2d 54 (Ala.Crim.App.1977) ], heroin was found pursuant to a search warrant executed on March 14, 1973. Thomas, 353 So.2d at 55. One of the police officers who executed the warrant was the affiant, who had stated, in pertinent part:
“ ‘ “On February 23rd, 1973, a search warrant was served at 2624 Tempest Drive, Apartment H, residence of Marie Haley. A quantity of heroin was seized on this date. On the afternoon of March 6th, 1973, an undercover police officer purchased a quantity of heroin from Eric Rogers at 2624 Tempest Drive, Apartment H. On March 13th, 1973,1 received information from a reliable informant who has given me information over a period of the last 30 days which has led to narcotic cases being made with trials pending. This informant gave me information that he had observed heroin being used and sold at 2624 Tempest Drive, Apartment H, Birmingham, Alabama.” ’
“353 So.2d at 56 (emphasis added). In holding that the defendant’s motion to suppress the heroin found during the search should have been granted, the Court of Criminal Appeals stated:
“ ‘The affidavit is deficient because it fails to show that the information received from the informant was fresh as opposed to being remote.... The affidavit stated that the informant “had observed ” heroin being used and sold from the premises described. The affidavit does not state the date or the time the informant allegedly observed the heroin on the premises....
“ ‘The fact that heroin was previously seized on February 23, 1973, at 2624 Tempest Drive, Apartment H, did not establish probable cause to believe that heroin was on the premises three weeks later.
“‘Also, the fact that on March 6, 1973, an undercover police officer purchased a quantity of heroin from Eric Rogers on the premises did not establish probable cause to believe that a week later such narcotic would be still found thereon. Seven days is a considerable length of time in which to remove heroin from the premises or dispose of it in another fashion. Such makes for a stale warrant.’
“353 So.2d at 56 (emphasis added).
“The search warrant challenged in Lewis [v. State, 589 So.2d 758 (Ala.Crim. App.1991),] was based on an affidavit that stated, in pertinent part: ‘ “[WJithin the last seventy-two hours, a reliable, confidential informant advised this affi-ant that said informant had been at the above described residence and observed a quantity of powder cocaine.” ’ Lewis, 589 So.2d at 759 (emphasis added). In reversing the trial court’s denial of the defendant’s motion to suppress evidence of a controlled substance found during the search, the Court of Criminal Appeals explained that the affidavit was constitutionally ‘deficient, because it fail[ed] to refer to the date when the informant allegedly observed cocaine at the [defendant’s] residence.’ 589 So.2d at 759 (emphasis added).
“Similarly, in Nelms [v. State, 568 So.2d 384 (Ala.Crim.App.1990) ] a controlled substance was found in executing a search warrant obtained on the basis of an affidavit that stated, in pertinent part:
“ ‘ “And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: That within the last seventy-two hours a confidential police informant, who has provided information to the affiant in the past that led to an arrest, stated to the affiant that they [sic] have seen Crack-Cocaine in the residence of Tommie Lee Nelms, alias, located at 625 Westview Drive, Auburn, Lee County, Alabama.” ’
“Nelms, 568 So.2d at 385 (emphasis added in Nelms). In reversing the trial court’s denial of the defendant’s motion to suppress evidence of the controlled substance, the Court of Criminal Appeals stated:
“ ‘The affidavit in this case is [constitutionally] deficient because it does not state when the drugs were seen by the informant at the [defendant’s] residence. The words “within the last seventy-two hours” refer to when the informant told this information to the affiant, not to when the informant observed the narcotics in the [defendant’s] residence. There is absolutely no reference to the date or time when the narcotics were observed by the informant. Thus, the affidavit was defective and was insufficient to support the issuance of the search warrant in this case.’
568 So.2d at 386 (emphasis added).
“The Court of Criminal Appeals has explained in regard to the phrase ‘had observed’ that such statements in affidavits evidencing past actions are ineffective. This is so, because the allegedly illegal activity “‘could have been any time in the past.” ’ Thomas, 353 So.2d at 56 (quoting Walker v. State, 49 Ala. App. 741, 743, 275 So.2d 724, 725-26 (Ala.Crim.App.1973)). When ‘ “[t]he informer [does] not tell the officer-affiant the date or time he allegedly observed the [activity] on the premises,”’ then ‘ “[t]here is nothing in the affidavit which hints of time except the use of the past tense in connection with the informant’s ... report to the affiant.” ’ 353 So.2d at 56 (quoting Walker, 49 Ala.App. at 743, 275 So.2d at 726)(emphasis added).
“Similarly, nothing in Officer Flath-man’s affidavit reveals when the tip from the informant was received or when the alleged activity was observed. The most that can be gained from that portion of the affidavit is that — at some indefinite time in the past — an anonymous individual allegedly learned of a methamphetamine operation involving Green at the address indicated on the search warrant. Because Officer Flathman’s affidavit contained no chronological reference in which to place the informant’s alleged observation of the methamphetamine operation, it afforded no basis on which to determine whether ‘the object of the search [was] probably on the premises to be searched at the time the warrant [was] issued.’ [United States v.] Greany, 929 F.2d [523] at 525 [ (9th Cir.1991) ].”

15 So.3d at 493-94.

Here, the affidavit underlying the search warrant does not include a reference to when the confidential informant observed the methamphetamine in McIntosh’s residence. As McIntosh correctly points out, the statement that “[t]he information is fresh within the last 24 hours” is ambiguous because it is unclear whether that statement refers to when the confidential informant learned the information or to when the confidential informant called Deputy Bryant. Like the affidavit in Green and those mentioned therein, the affidavit prepared by Officer Shackelford “afforded no basis on which to determine whether ‘the object of the search [was] probably on the premises to be searched at the time the warrant [was] issued.’ ” Green, 15 So.Bd at 494. Thus, it is not readily apparent from the face of the affidavit that probable cause sufficient to support a search warrant existed.

However, our inquiry does not end here; we are also required to look at what information the affiant offered to the magistrate who issued the search warrant. The Court in Green explained:

“Even if an affidavit is facially defective for the reasons just discussed, its deficiency may be cured by information an affiant supplied to the issuing authority in addition to the assertions in the affidavit. However, no such circumstance is presented in this case, because Officer Flathman testified at the hearing on Green’s Rule 32[, Ala. R.Crim. P.,] petition that he ‘[did]n’t recall’ telling the district judge who issued the warrant anything ‘[o]ther than what was on the four corners of the [search-warrant affidavit].’ In that respect, also, this case is on point with Nelms and Lewis.
“Both of those eases involved, as does this case, allegations that the supporting affidavits lacked a chronological context by which to assess the timeliness of the search warrant. Nelms, 568 So.2d at 386; Lewis, 589 So.2d at 759. In both cases, the State attempted to cure the deficiency of the affidavits with testimony of the affiants regarding facts they had orally communicated to the judges who issued the warrants. Nelms, 568 So.2d at 386-87, Lewis, 589 So.2d at 759. In both cases, as in this case, the affi-ants testified that they could not recall what they had told the issuing judge as to when the informant had observed the illegal activity. In both cases, the Court of Criminal Appeals held, contrary to the holding in its unpublished memorandum in this case, that such oral testimony is insufficient to cure the deficiency of a supporting affidavit.

15 So.3d at 495.

Although Officer Shackelford stated that he had discussed the freshness issue with Deputy Bryant and that he likely had included the phrase “[t]he information is fresh within the last 24 hours” in the affidavit because Deputy Bryant had indicated that the confidential informant had made her observations within the preceding 24 hours, he could not recall whether the issuing magistrate had asked him any questions regarding the information contained in the affidavit. According to Officer Shackelford: “I presented [the application for a search warrant] to [the magistrate] and he read it, and then he signed it.” (R. 29.) Officer Shackelford also could not recall whether he had told the magistrate about any facts not contained in the affidavit. Thus, Officer Shackelford’s inability to recall his discussions with the magistrate who issued the search warrant leads this Court to conclude that his testimony did not, and could not, cure the deficiencies in the affidavit.

Here, neither the facts contained in the affidavit nor the testimony regarding Officer Shackelford’s discussions with the issuing magistrate sufficiently established probable cause to support the issuance of a search warrant. Thus, given the Supreme Court’s holdings in Ex parte Green, we have no choice but to conclude that the trial court erred in denying McIntosh’s motion to suppress.

Based on the foregoing, McIntosh’s conviction is reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH, WINDOM, and MAIN, JJ., concur. WISE, P.J., concurs in the result.

      . Lamar County is one of the counties included in the 24th Judicial Circuit.


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Miroslaw Thomas LOBASZ, Respondent.
    No. SC08-1105.
    Supreme Court of Florida.
    Feb. 3, 2011.
    Rehearing Denied June 2, 2011.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Lorraine Christine Hoffman, Bar Counsel, The Florida Bar, Sunrise, FL, for Petitioner.
    D. Culver Smith, III of Fox Rothschild, LLP, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Miroslaw Thomas Lo-basz be found in indirect contempt and suspended from the practice of law for three years effective, nunc pro tunc, April 10, 2008. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact and recommendation of guilt, but disapprove the recommended sanction. We hereby disbar Miroslaw Thomas Lobasz from the practice of law in Florida.

BACKGROUND

On March 7, 2008, the Court entered an order suspending Lobasz for three years. Fla. Bar v. Lobasz, 979 So.2d 220 (Fla.2008) (table). Subsequently, in June 2008, pursuant to Rule Regulating the Florida Bar 3 — 7.11(f) (Contempt), The Florida Bar filed a petition for contempt alleging that Lobasz practiced law after his suspension took effect by appearing at an immigration hearing on behalf of a former client. The Court issued an order directing Lobasz to show cause why he should not be held in contempt and disbarred. After responses were filed, the case was referred to a referee. Thereafter, the referee submitted a report to the Court, in which he makes findings of fact and recommendations, which are discussed below.

The Bar’s petition alleged that Lobasz, while suspended, appeared at an immigration hearing on behalf of a former client along with the client’s new counsel, made legal arguments at the immigration hearing, and questioned his former client at the hearing. Before the referee, the Bar moved for summary judgment regarding the facts of Lobasz’s conduct at the immigration hearing and on the conclusion of law that his actions constituted the practice of law. The referee entered an order, with the agreement of Lobasz, granting partial summary judgment and finding that Lobasz actively participated in a hearing before the Honorable Denise A. Marks Lane, a United States Immigration Judge, on April 10, 2008, in Removal Proceedings of Alberto Gaspar-Martinez, Case No. [ AXXXXXXXXX ]. The referee further found that Lobasz, at the immigration hearing, addressed and responded to the court and conducted a direct examination of Gaspar-Martinez, his former client, which constituted the practice of law.

After holding a hearing, the referee found that Lobasz’s three-year suspension (Fla. Bar v. Lobasz, 979 So.2d 220 (Fla.2008)) took effect on April 7, 2008. Pursuant to the Court’s order of suspension, Lobasz was directed to close his law practice during the thirty-day period before the suspension became effective. In the course of that “close out” period, Lobasz transferred most of his open cases to Linda Amy Ann Cahill, a member of The Florida Bar with whom he shared office space. Gaspar-Martinez was one of Lo-basz’s former clients, whose case had been transferred to Cahill. Cahill had filed the appropriate administrative form to appear as counsel for Gaspar-Martinez.

Three days after his suspension became effective, Lobasz accompanied Cahill, at her request, to the April 10, 2008, immigration hearing in Removal Proceedings of Alberto Gaspar-Martinez, Case No. [ AXXXXXXXXX ]. This was a deportation hearing. Lobasz intended to assist Cahill as needed, to “make sure that everything was done right,” and “to whisper in her ear when [he] thought something had to be done.”

At the hearing, Cahill informed Judge Lane that she was representing Gaspar-Martinez. Neither Lobasz nor Cahill informed the court or opposing counsel that Lobasz was suspended from the practice of law. Lobasz sat at counsel table with Cahill. He responded to questions posed by Judge Lane regarding the procedural history of the case. Further, Lobasz conducted a direct examination of Gaspar-Martinez because Cahill did not understand the foundation needed to qualify Gaspar-Martinez for voluntary departure.

Before the referee, Lobasz testified that at the time of the immigration hearing, he was suffering from post-traumatic stress syndrome, anxiety, and depression. In addition, his father was hospitalized and dying. Lobasz stated that his actions at the immigration hearing were motivated by his emotional state and desire to help a former client.

The referee recommended that Lobasz be found in indirect contempt of the Court for his “technical violation” of the Court’s March 7, 2008, order of suspension. As a sanction for the contempt, the referee recommended that Lobasz be suspended for a period of three years effective, nunc pro tunc, April 10, 2008 (the date of Lobasz’s appearance at the immigration hearing), to run concurrently with the three-year suspension already imposed in Case No. SC06-2500. The referee further recommended that Lobasz pay the Bar’s costs in the amount of $3,259.80.

In recommending this sanction, the referee found two aggravating and five mitigating factors. The aggravating factors are: (1) prior disciplinary offense (the case in which Lobasz was suspended for three years for his trust-accounting violations, Florida Bar v. Lobasz, 979 So.2d 220 (Fla.2008) (Case No. SC06-2500)); and (2) injury to the legal system due to Lobasz’s failure to inform the immigration judge of his suspension, which disrupted a legal proceeding to the extent that it required the immigration judge to reschedule a hearing that was set for the following week. The mitigating factors found by the referee are: (1) absence of a conscious intent to violate the Court’s disciplinary order; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) remorse; and (5) the absence of any injury to the client.

The Florida Bar petitions the Court for review, arguing that (1) the referee abused his discretion in allowing Lobasz to testify in mitigation concerning medical conditions that he failed to disclose during discovery; (2) the referee’s finding that Lobasz lacked a conscious intent to violate the Court’s order is not supported by competent, substantial evidence; and (3) the referee’s recommended sanction is not supported.

ANALYSIS

First, The Florida Bar argues that the referee abused his discretion in allowing Lobasz to testify concerning his mental conditions. Lobasz failed to disclose his mental status as a mitigating factor in his answers to interrogatories. The Bar claims that the referee allowed Lobasz to testify, overruling the Bar’s objection. A review of the transcript from the hearing before the referee, however, reveals that the Bar did not object when Lobasz testified that he suffered from post-traumatic stress disorder, anxiety, and depression. In fact, later in the hearing, when Lobasz testified further regarding his symptoms and treatment, the Bar again failed to object to his testimony. Thus, the Bar waived its objection to Lobasz’s testimony by failing to object when the testimony was first given.

Even if the Bar had preserved its objection, “a referee has wide latitude to admit or exclude evidence and may consider any relevant evidence, including hearsay and the trial transcript or judgment in a civil proceeding.” Fla. Bar v. Tobkin, 944 So.2d 219, 224 (Fla.2006) (citations omitted). “A referee’s decisions about the admissibility of evidence will not be disturbed absent an abuse of discretion.” Id.; see also Fla. Bar v. Rotstein, 835 So.2d 241, 244 (Fla.2002). Based on the record, the referee did not abuse his discretion. The Rules of Civil Procedure apply in attorney disciplinary proceedings before a referee to the extent that they are not inconsistent with any provision of Rule Regulating the Florida Bar 3-7.6 (governing procedures for proceedings before a referee). See Fla. Bar v. Daniel, 626 So.2d 178 (Fla.1993); see also R. Regulating Fla. Bar 3 — 7.6(f)(1). “Discovery shall be available to the parties in accordance with the Florida Rules of Civil Procedure.” R. Regulating Fla. Bar 3-7.6(f)(2) (discovery in proceedings before the referee). In civil cases, like Bar disciplinary cases, a trial court’s decision to impose discovery sanctions is discretionary and is only reviewed for an abuse of discretion. See Vega v. CSCS Int’l, N.V., 795 So.2d 164, 167 (Fla. 3d DCA 2001). Further, the exclusion of a witness’s testimony as a discovery sanction is a drastic remedy that should be used only under the most compelling circumstances. Id.; see also Griefer v. DiPietro, 708 So.2d 666, 670 (Fla. 4th DCA 1998). Based on case law and the record, we conclude that the referee did not abuse his discretion in allowing Lobasz to testify concerning his mental status at the final hearing. Additionally, this evidence supports the referee’s finding that Lobasz suffered from post-traumatic stress disorder, anxiety, and depression.

Although a referee has wide latitude to admit evidence and may consider any relevant evidence, we must emphasize that “trial by ambush” tactics will not be condoned. Lobasz failed to update his responses to the Bar’s discovery requests. The Bar, in interrogatories propounded to Lobasz during the discovery phase, asked Lobasz to identify any mitigation that he would seek to advance at the final hearing. In response, Lobasz stated that any potential mitigation had not yet been determined. He did not amend or supplement this answer and, thus, never identified any mitigation evidence he planned to introduce at the hearing. While we conclude that the instant referee did not abuse his discretion in allowing the testimony, we feel compelled to reiterate that parties who evade their discovery responsibilities will not be permitted to benefit from such improper tactics.

Second, the Bar argues that there is not competent, substantial evidence to support the finding that Lobasz lacked a conscious intent to violate the Court’s suspension order. The Court’s review of a referee’s factual findings is limited, and if a referee’s finding of fact is supported by competent, substantial evidence in the record, the Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1890 (Fla.1998). To succeed in challenging a referee’s finding of fact, the party, in this case the Bar, must establish that there is a lack of evidence in the record to support the finding or that the record clearly contradicts the referee’s conclusion. Fla. Bar v. Committe, 916 So.2d 741, 746 (Fla.2005); Fla. Bar v. Karten, 829 So.2d 883, 888 (Fla.2002).

The referee found that Lobasz did not intentionally violate the Court’s order of suspension, due to Lobasz’s state of mind (the mitigating factors regarding Lobasz’s mental conditions). Even though the referee made these findings, he recommended that Lobasz be found in indirect contempt for violating the order of suspension. Our review of the record finds support for these mitigating factors, which in turn support the referee’s finding as to intent.

Third, the Bar asserts that the referee’s recommended sanction of a three-year suspension is not supported and argues that disbarment is the appropriate sanction. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, 15, Fla. Const. However, generally speaking this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

In contempt cases, a respondent’s “[c]lear violation of any order or disciplinary status that denies an attorney the license to practice law generally is punishable by disbarment, absent strong extenuating factors.” Fla. Bar v. Brown, 635 So.2d 13, 13-14 (Fla.1994). Lobasz violated the Court’s order of suspension and, consequently, we -find him in contempt. Thus, the presumptively correct sanction in this case is disbarment unless there are strong extenuating factors. Brown; see also Fla. Bar v. Bitterman, 33 So.3d 686, 688 (Fla.2010) (holding suspended attorney in contempt for engaging in the practice of law and disbarred); Fla. Bar v. D’Ambrosio, 25 So.3d 1209, 1220 (Fla.2009) (same); Fla. Bar v. Heptner, 887 So.2d 1036, 1045 (Fla.2004) (same).

The referee found five mitigating factors: (1) absence of a conscious intent to violate the Court’s disciplinary order; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) remorse; and (5) the absence of any injury to the client. In determining whether these mitigating factors constitute strong extenuating circumstances, we reviewed the record. We find that the weight of the mitigating evidence is significantly diminished.

By his own admission, Lobasz continued to advise Cahill on the cases of his former clients and briefed her to prepare her for hearings. Lobasz testified: “As the hearing gets closer, I have to review the case with her, let her know exactly where the case stands and what’s going on with it.” His continuing role in the cases of his former clients cannot be attributed to the mitigating factors found by the referee. Plainly stated, a year after his suspension became effective, Lo-basz should not have been involved in these cases. Lobasz testified that he was not compensated by Cahill for his services. Nevertheless, even the voluntary services of a suspended lawyer can constitute the practice of law and violate an order of suspension. Rule Regulating the Florida Bar 3-6.1 provides guidance. Subdivision (a) only permits lawyers to employ suspended lawyers “to perform those services that may ethically be performed by non-lawyers.” The rule applies whether the suspended lawyer is “a salaried or hourly employee, volunteer worker, or an independent contractor providing services to the entity.” (Emphasis added.) Subdivision (e) of the rule requires notice to the Bar “[b]efore employment commences.” Thus, Lobasz was on notice that he should not advise Cahill regarding the cases of his former clients. See Fla. Bar v. Forrester, 916 So.2d 647, 653 (Fla.2005) (holding the respondent in a contempt case, as a lawyer, was on notice of the Court’s case law establishing the parameters for permissible activities for suspended attorneys who work as law clerks in a law office during a period of suspension). Further, Lobasz testified that he continued to go to his former law office almost daily, met with former clients one-on-one to collect fees he allegedly earned before the suspension was imposed, and prepared pleadings for Cahill, and that occasionally Cahill would call him into her office to ask him a question about a case with the client present. Even if Lobasz provides these services voluntarily, the rule required notice to the Bar before Lobasz began advising Cahill, as well as compliance with the rule (such as the quarterly reporting requirements stated in subdivision (e)). Thus, while Lo-basz asserts that he lacked a conscious intent to violate the Court’s order of suspension when he engaged in misconduct at the immigration hearing, the record demonstrates that his misconduct did not stop after the hearing. Long after the April 10, 2008, immigration hearing, Lobasz continued to engage in the practice of law by advising Cahill regarding cases that were allegedly transferred to her over a year before. These facts prevent the mitigating factors, which applied to his misconduct at the immigration hearing, from constituting extenuating circumstances. As Lobasz has failed to overcome the presumption of disbarment, we disapprove the referee’s recommended sanction of a three-year suspension and impose disbarment. See Brown; Bitterman; D’Ambrosio.

CONCLUSION

Accordingly, Miroslaw Thomas Lobasz is hereby disbarred from the practice of law in Florida, effective immediately. As Respondent is currently suspended, it is unnecessary to provide him with thirty days to close out his practice to protect the interests of existing clients. Miroslaw Thomas Lobasz shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Respondent shall accept no new business until he is readmitted to the practice of law in Florida.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Miroslaw Thomas Lobasz in the amount of $3,259.80, for which sum let execution issue.

It is so ordered.

LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., concurs in result with an opinion, in which CANADY, C.J., and POLSTON, J., concur.

PARIENTE, J.,

concurring in result.

I agree with the majority’s decision to disbar the respondent. I disagree, however, with separately chastising Lobasz for not updating his interrogatories in this case. Majority op. at 1171-72. It is incumbent upon the party prejudiced by a discovery violation to object to the testimony or evidence that was not previously disclosed. In this case, the Bar never objected to Lobasz’s testimony regarding his mental health. The majority actually acknowledges the waiver by the Bar. See majority op. at 1170-71. Thus, although discovery in a bar discipline case is governed by the rules of civil procedure, because the Bar did not object to Lobasz’s testimony as to his state of mental health, we do not know if there were other informal methods employed by the parties to exchange information.

Further, although the majority criticizes Lobasz’s failure to update his interrogatories to identify mitigation he planned to introduce at the hearing, Florida Rule of Civil Procedure 1.340 does not contain a provision that automatically mandates supplementation of answers to interrogatories. Rather, Florida Rule of Civil Procedure 1.280(e) states that a party who has properly responded to discovery “is under no duty to supplement the response to include information thereafter acquired.” In this case, there was no determination made as to whether the answer “not yet determined” was inaccurate when the answers were provided on December 4, 2008, and the hearing on sanctions did not take place until April 30, 2009.

More disturbing to me in this case is the fact that the Bar represented to this Court at oral argument, in response to numerous questions, that it had “repeatedly and vociferously” objected to Lobasz’s testimony about mental health issues, despite the fact that the record clearly demonstrates to the contrary — that there was no such objection. After counsel for the Bar explicitly answered questions from Justice Quince and from me by stating that the Bar had repeatedly objected, Chief Justice Canady revisited the issue as follows;

[Chief Justice Canady:] Let me make sure I understand here, you’re saying when Mr. Lobasz testified concerning his mental health issues, the Bar objected?
[Bar response:] Repeatedly.
[Chief Justice Canady:] To his testimony?
[Bar Response:] Yes, Sir.

Shortly after this exchange, the following occurred:

[Chief Justice Canady:] Let me go back to objections on the mental health testimony.
[Bar Response:] Certainly.
[Chief Justice Canady:] Did he give any testimony related to his mental health to which you did not object? Specifically, when he gave testimony concerning his posttraumatic stress disorder, anxiety and depression, were, was — did the Bar make objection to testimony on those subjects from Mr. Lo-basz?
[Bar Response:] Yes, Justice Canady. The Bar objected repeatedly and vociferously. It was something of a skirmish because there was a point where the referee actually teased out evidence....

After oral argument, the Bar never corrected its repeated misstatements. Bar counsel’s inaccurate representations concerning the record are exceedingly troubling. All sides in bar proceedings must conduct themselves according to the applicable rules, without misleading the opposing party or this Court.

CANADY, C.J., and POLSTON, J., concur.

      . The Bar also asserts that the referee should not have permitted Lobasz to introduce a copy of his therapist’s report concerning Lo-basz’s mental condition because the report was not produced after the Bar served a request to produce. We find this argument to be without significance because Lobasz’s counsel withdrew his proffer of the report after Bar counsel objected to its admission. As the report was not admitted into evidence, the Court will not consider this argument further.

      . The Bar did object later to the introduction of an e-mailed report from his therapist.

      . During the hearing, the Bar did object to the admissibility of two documents: (1) a list of clients that Lobasz represented at the time of his suspension; and (2) a letter/e-mail from his current mental health provider regarding the history and treatment that Lobasz was receiving for mental health issues. Although Bar counsel objected to the admissibility of these documents, counsel for the Bar never once during the hearing objected to Lobasz's testimony concerning his mental health issues.


author: QUINCE, J.

text:
    Michael HERNANDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-2225.
    Supreme Court of Florida.
    Feb. 17, 2011.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Richard L. Polin, Bureau Chief, Assistant Attorney General, Miami, FL, for Respondent.
   QUINCE, J.

We have for review Hernandez v. State, — So.3d -, 2009 WL 3617452 (Fla. 3d DCA 2009), in which the Third District Court of Appeal denied an appellant’s motion to transfer his appeal to another district court, but certified that its decision was in conflict with Cole v. State, 280 So.2d 44 (Fla. 4th DCA 1973), and Stanek-Cousins v. State, 896 So.2d 865 (Fla. 5th DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth in this opinion, we approve Hernandez.

FACTS AND PROCEDURAL HISTORY

This case arises out of the murder trial of petitioner Michael Hernandez. In February 2004, Hernandez was indicted for first-degree murder and attempted first-degree murder in the Eleventh Judicial Circuit in Miami-Dade County. According to the State’s allegations, Hernandez — a fourteen-year-old middle school student at the time of the offenses — murdered a classmate one morning before school using a knife that he had concealed in his backpack. The State alleged that Hernandez had also attempted to kill a different classmate in the same manner the previous day.

Shortly before Hernandez’s trial was scheduled to begin, Judge John Schlesinger of the Eleventh Judicial Circuit granted the defense’s motion for a change of venue, transferring the case to the Ninth Judicial Circuit in Orange County. The court’s order explained that coverage of the case in print, radio, and televised media had been pervasive and that the exposure had impeded efforts to select a jury in Miami-Dade County.

The trial was held in Orlando in September 2008, with Judge Schlesinger presiding. The case was tried on behalf of the State by the State Attorney for the Eleventh Judicial Circuit, while Hernandez was represented by private counsel. The jury found Hernandez guilty of both charged offenses. The next day, Judge Schlesinger entered an order transferring venue back to the Eleventh Judicial Circuit. A sentencing hearing was held in Miami-Dade County on November 7, 2008, and Hernandez was sentenced to life in prison for murder and thirty years in prison for attempted murder. Soon after, Hernandez filed a notice of appeal with the Eleventh Judicial Circuit, seeking review of the judgment and sentences in the Third District Court of Appeal.

On September 8, 2009, Hernandez filed a motion with the Third District requesting that his appeal be transferred to the Fifth District Court of Appeal. Hernandez argued that because his trial was held in Orlando, the Fifth District, which has jurisdiction over the Ninth Judicial Circuit in Orange County, was the proper court of appellate jurisdiction. Citing this Court’s decision in Vasilinda v. Lozano, 681 So.2d 1082 (Fla.1994), the Third District denied the motion, stating:

[W]e conclude that appellate jurisdiction lies with the Third District Court of Appeal. Although venue was transferred to Orange County due to pre-trial publicity, and venue rested with the Fifth District Court of Appeal during pendency of the trial to rule on any interlocutory motions or petitions entered in Orange County, once the case was transferred back to Miami-Dade County and the Clerk of the Court in Miami-Dade County received the court file, Orange County lost jurisdiction and appellate jurisdiction was transferred to the Third District. This finding is further supported by the fact that post-trial motions, the issuance of the judgment and sentence, and the notice of appeal all occurred in Miami-Dade County after Orange County transferred the case back to and the file was received by Miami-Dade County. Because venue was transferred back to Miami-Dade County and the case was concluded in Miami-Dade County, review of the judgment is properly before the Third District Court of Appeal.

Hernandez v. State, — So.3d -,(Fla. 3d DCA 2009).

The Third District noted, however, that its holding was in conflict with decisions of the Fourth and Fifth District Courts of Appeal. See id. In Cole v. State, 280 So.2d 44 (Fla. 4th DCA 1973), an information was filed against the defendant in Broward County. The Broward County trial court granted a motion for a change of venue, transferring the case to Polk County for trial. After the defendant was convicted by a jury, the trial court signed an order returning the case to Broward County. The judgment and sentence were then entered by the trial judge in Broward County. Id. at 45.

The defendant appealed to the Fourth District, which observed that the location of the trial, Polk County, was outside of its jurisdiction. The Fourth District concluded:

[Ojnce the cause was transferred to and actually tried in the Criminal Court of Record for Polk County, jurisdiction remained in that court for the purpose of adjudication and sentencing. For the purpose of convenience we hold that the order transferring the cause back to the Court of Record for Broward County shall be given effect only as an administrative order for the convenience of the trial judge and the adjudication and sentence shall be treated as an adjudication and sentence of the Court of Record of Polk County, Florida.

Id. (citation omitted). The Fourth District therefore transferred the appeal to the Second District Court of Appeal, which had appellate jurisdiction over the Polk County trial court. Id.

The Fifth District reached a similar conclusion in Stanek-Cousins v. State, 896 So.2d 865 (Fla. 5th DCA 2005). There, the defendant was indicted in the Ninth Judicial Circuit in Osceola County, but the case was transferred to the Fifteenth Judicial Circuit in Palm Beach County for trial. After trial, the Fifteenth Judicial Circuit transferred venue back to Osceola County for sentencing. Id. at 865-66. On appeal, the Fifth District determined that it did not have jurisdiction over the case. Explaining that “[ajppeals from cases tried in Palm Beach County are heard by the Fourth District Court of Appeal,” the Fifth District transferred the appeal to the Fourth District. Id. at 866.

The Third District certified conflict with Cole and Stanek-Cousins. See Hernandez, — So.3d at -. We granted review to resolve the issue of which district court of appeal has appellate jurisdiction when a defendant has been tried and convicted in a trial court within the jurisdiction of one district court, but where the judgment and sentence have been entered in a trial court within the jurisdiction of a different district court.

ANALYSIS

The effect of a transfer of venue on the jurisdiction of the impacted trial courts is generally undisputed. The transferor court is divested of jurisdiction and thereafter lacks authority to enter any orders or take any further action in the case. The transferee court becomes vested with the same jurisdiction that was previously vested in the transferor court, and thereafter holds authority over the cause that is as full and complete as if the action had been initiated there. See Davis v. Florida Power Corp., 486 So.2d 34, 35 (Fla. 2d DCA 1986); Univ. Fed. Sav. & Loan Ass’n v. Lightbourn, 201 So.2d 568, 570 (Fla. 4th DCA 1967).

Appellate jurisdiction follows the jurisdiction of the trial court. In Vasilin-da, as in the present case, the defendant committed the charged offenses in Miami and was indicted in the Eleventh Judicial Circuit, but venue was transferred to the Ninth Judicial Circuit in Orlando due to concerns over pretrial publicity. See 631 So.2d at 1084. This Court had previously entered an order designating the Eleventh Circuit trial judge, Judge W. Thomas Spencer, as a temporary judge of the Ninth Circuit for the purpose of allowing him to preside over the trial in Orlando. Prior to trial, Judge Spencer entered an order prohibiting the media from publicly identifying jurors. A television journalist filed a motion requesting a partial modification of the order, but the motion was denied. The journalist appealed to the Third District, which transferred the appeal to the Fifth District based on that court’s jurisdiction over cases tried in the Ninth Circuit. See id.

However, the Fifth District expressed uncertainty as to whether it was the proper court to hear the appeal, stating:

[T]he orders to be reviewed are styled in the Eleventh Judicial Circuit, appear to be filed in the Eleventh Judicial Circuit, and were entered in Miami, Dade County, Florida in the Eleventh Circuit. The Supreme Court order assigning Judge W. Thomas Spencer of the Eleventh Circuit to hear, conduct, try and determine the case as a temporary judge of the Ninth Circuit does not specifically designate this court to hear any interlocutory orders in the cause.

Vasilinda v. Lozano, 618 So.2d 758, 759 (Fla. 5th DCA 1993).

To avoid any future jurisdictional disputes, the Fifth District refrained from deciding the issue and instead certified the following question to this Court as a matter of great public importance:

WHEN THE VENUE OF A CRIMINAL CASE IS CHANGED AND THE CASE TRANSFERRED TO A CIRCUIT COURT IN A DIFFERENT APPELLATE DISTRICT THAN THE ORIGINATING COURT, AND THE CIRCUIT JUDGE WHO ENTERED THE ORDER IS ASSIGNED AS A JUDGE OF THE TRANSFEREE CIRCUIT, IS APPELLATE JURISDICTION FOR INTERLOCUTORY AND FINAL REVIEW VESTED IN THE DISTRICT COURT OF APPEAL WHICH HAS JURISDICTION OVER THE ORIGINATING CIRCUIT COURT OR IS JURISDICTION VESTED IN THE DISTRICT COURT WHICH HAS JURISDICTION OVER THE TRANSFEREE COURT IN WHICH THE TRIAL IS TO BE HELD, AND AT WHAT POINT IN TIME DOES APPELLATE JURISDICTION VEST?

Id. at 759.

This Court began its analysis by stating: “It seems to be a generally accepted principle that when venue is transferred to another jurisdiction and the case is concluded in the new jurisdiction, review of the final order or judgment is properly commenced in the appellate court which has jurisdiction over the transferee court.” Vasilinda, 631 So.2d at 1085. We observed, however, that “[wjith respect to review of interlocutory orders, the cases are in disarray.” Id. Reviewing the existing precedent on the issue, we found that the confusion was caused in part by a conflict in our own cases over the issue of when a change of venue actually takes effect. See id. at 1086-87 (discussing Ammons v. State, 9 Fla. 530 (1861), and Swepson v. Call, 13 Fla. 337 (1869)).

Finding that the cases could not be fully reconciled, we set out several principles to govern determinations of appellate jurisdiction following transfers of venue. First, regarding the actual moment a transfer of venue from one trial court to another takes effect, we held:

Changes of venue in criminal cases do not become effective until the court file has been received in the transferee court. Changes of venue in civil cases do not become effective until the court file has been received in the transferee court and costs and service charges required by section 47.191, Florida Statutes (1991), and Florida Rule of Civil Procedure 1.060 which are applicable to the case are paid.

Vasilinda, 631 So.2d at 1087.

Second, regarding the moment the jurisdiction of the appellate court should be determined, we stated:

Appellate jurisdiction is determined at the time the notice of appeal or petition for extraordinary writ is filed. If the change of venue has not yet become effective when the notice or petition is filed, appellate jurisdiction lies in the district court of appeal which serves as the appellate court for the transferor court. That district court of appeal shall retain jurisdiction of the matter before it even though the change of venue is later effected. Once the change of venue has become effective, appellate jurisdiction shall be in the district court of appeal which serves as the district court of appeal for the transferee court, even if the challenged order was entered before the change of venue. Of course, the time for filing appeals and petitions for certiorari shall run from the date of the challenged order.

Id. (footnote omitted). We also noted that “even if the order changing venue itself is challenged, appellate jurisdiction will depend upon whether the change has been effected when the notice of appeal is filed.” Id. at 1087 n. 4.

Applying those principles to the circumstances presented in Vasilinda, we concluded that “[bjecause jurisdiction was already vested in the Ninth Judicial Circuit when petitioner filed his notice of appeal, the Fifth District Court of Appeal was the proper court for appellate jurisdiction.” Id. at 1087. We further stated: “The fact that after the change of venue Judge Spencer entered the challenged order in Miami under the style of the Eleventh Judicial Circuit does not change our conclusion.” Id.

Although Vasilinda concerned an initial transfer of venue, while the instant case concerns a transfer of venue back to the court of original jurisdiction, we conclude that the principles we set out in Vasilinda should continue to apply if and when a case is returned to the originating court. Thus, in determining appellate jurisdiction, the relevant issue is not where the defendant was tried and convicted, but rather whether the transfer of venue was complete at the time the notice of appeal was filed.

The application of these principles to this case is clear. Despite the fact that Hernandez was tried and convicted in the Ninth Judicial Circuit in Orlando, Judge Schlesinger entered the order returning venue to the Eleventh Judicial Circuit immediately after the trial was completed. Once that order was issued and the court file was received by the clerk of the Eleventh Circuit, the Ninth Circuit was divested of authority to take any action at the trial level. Likewise, the Fifth District was divested of appellate jurisdiction, which thereafter rested with the Third District for all subsequent matters in the case. Therefore, we find that review of the judgment and sentences in this case is within the appellate jurisdiction of the Third District.

CONCLUSION

We hold that once an order transferring venue has been entered by the transferor court and the court file has been received by the clerk of the transferee court, appellate jurisdiction becomes vested in the district court with jurisdiction over the transferee court for all subsequent matters in the case. This rule applies both to an initial transfer of venue and to any subsequent transfer back to the court of original jurisdiction. Accordingly, we approve the decision of the Third District in Hernandez and disapprove the decisions of the Fourth and Fifth Districts in Cole and Stanek-Cousins to the extent that they are inconsistent with this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

      . See Fla. R. Jud. Admin. 2.260(b) ("The presiding judge from the originating court shall accompany the change of venue case, unless the originating and receiving courts agree otherwise.”).

      . In Cottingham v. State, 672 So.2d 28 (Fla.1996), we clarified that in determining when a transfer of venue has been effected in a civil case, costs and service charges are considered paid on the date they are received by the transferee court.

      . As the Third District correctly observed, however, had an appeal from any interlocutory orders or petitions entered in Orange County been filed prior to the transfer back to the Eleventh Circuit, appellate jurisdiction in that particular matter would have remained with the Fifth District. See Hernandez, — So.3d at -; see also Vasilinda, 631 So.2d at 1087 ("If the change of venue has not yet become effective when the notice or petition is filed, appellate jurisdiction lies in the district court of appeal which serves as the appellate court for the transferor court.”).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. R. Patrick MIRK, Respondent.
    No. SC08-1423.
    Supreme Court of Florida.
    April 7, 2011.

      John F. Harkness, Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, Henry Lee Paul, Bar Counsel, and Cynthia Lois Miller, Assistant Bar Counsel, The Florida Bar, Tampa, FL, for Complainant.
    R. Patrick Mirk, Pro se, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent R. Patrick Mirk be found guilty of professional misconduct and disbarred. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed herein, we approve the referee’s findings of fact and recommendations of guilt, as well as the referee’s recommended discipline. Accordingly, we disbar Mirk from the practice of law in Florida.

BACKGROUND

The Bar filed a two-count complaint against Mirk, alleging that he violated several of the Rules Regulating the Florida Bar (Bar Rules). A referee was appointed. After holding a hearing, the referee has submitted his report for the Court’s review, in which he makes the following findings and recommendations.

Count I. Lome Lyles retained Patrick Mirk to represent him in a dispute with a contractor concerning a residential construction project. Lyles agreed to pay Mirk $250 per hour for his work on the case. He also made an initial payment to Mirk, totaling $750. Mirk did not inform Lyles that the $750 payment would be treated as a “non-refundable retainer.” Nonetheless, Mirk deposited Lyles’ $750 check into his operating account, rather than in his trust account as is required under the Bar Rules.

Given these facts, the referee found clear and convincing evidence that Lyles’ $750 payment was an advance payment for legal fees, and was not a non-refundable retainer. Absent an agreement that the $750 would be treated as a non-refundable retainer, Mirk was obligated to hold the advance fee payment in trust until earned. The referee found that by failing to deposit Lyles’ advance payment into his trust account, Mirk failed to apply trust funds for the intended purpose. For this misconduct, the referee recommended that Mirk be found guilty of violating the following Bar Rules: 5 — 1.1(a) (a lawyer shall hold in trust, separate from the lawyer’s own property, any property of clients or third persons that are in a lawyer’s possession in connection with a representation); and 5-1.1(b) (money or other property entrusted to an attorney for a specific purpose, including advances for fees, costs, and expenses, is held in trust and must be applied only to that purpose). The referee has also recommended that Mirk be found guilty of violating 4-8.4(g) (a lawyer shall not fail to respond to an official inquiry made by bar counsel or a disciplinary agency).

Count II. During the course of his practice, Mirk developed a professional relationship with Frank Bragano. Mirk represented Bragano and the business entities with which Bragano was involved in various projects over a number of years. Two such projects are at issue in this case.

First, Bragano hired Mirk to help resolve a dispute with Bragano’s former attorney concerning an investment deal known as the “Meridian Project.” Mirk was successful in negotiating a resolution to the dispute. As a result of the settlement, Mirk received a check for $100,462.50, to be distributed equally to each of the investors in the Meridian Project. Mirk deposited the check into his trust account. On June 30, 2004, Mirk wrote a check to Bragano for $31,487.50, representing his share of the settlement. At that time, Bragano placed the check in a desk drawer and it was not cashed.

As to the second project, in June 2004 Mirk began discussions with Bragano and others about plans to establish a large multi-million dollar “investment platform.” Mirk would serve as corporate counsel for the venture. The project was intended to include four separate limited liability corporations; the first of these corporations to be established was called Montpelier, LLC.

The primary dispute in this case concerns Mirk’s compensation for his work on the Montpelier venture. Mirk testified that he and Bragano had an oral agreement that Mirk would be paid a $40,000 flat fee for each company he established and $100,000 per year to act as corporate counsel. In contrast, Bragano testified before the referee that he did not agree to any type of flat fee arrangement. Instead, Bragano maintained that Mirk agreed to be paid a portion of the future profits from the investment venture in the event it was ultimately successful. On this central point, the referee found Bragano’s testimony to be credible and that Mirk’s testimony was not credible. Indeed, based on the evidence, the referee found that Mirk did not have an agreement to be paid a $40,000 flat fee for his work on the Montpelier project.

In October 2004, Bragano informed Mirk for the first time that he had not cashed the Meridian Project check for $31,487.50. Within a short time thereafter, Mirk executed a stop payment on that check without advising Bragano; bank records submitted into evidence show the stop payment was issued October 25, 2004. At this point, Mirk began a series of transactions disbursing the Meridian Project funds represented in the check for which Mirk had issued the stop payment order to himself. First, on October 25, 2004, the date the stop payment was entered, Mirk wrote a check to himself for $10,000. Next, Mirk issued three checks, each for $2,000, on November 10, November 12, and November 15, 2004, payable to himself. On November 22, 2004, Mirk wrote a check payable to the United States Treasury in the amount of $7,068.14. On November 24, 2004, he wrote a check to himself for $1,931.86, and on December 13, 2004, he wrote another check for $4500. Mirk later disbursed the remainder of the Meridian Project funds to himself on April 11, 2005. The referee found that Bragano had no knowledge of these disbursements and did not authorize them. In fact, the referee found that Mirk intentionally concealed these distributions from his client.

In December 2004, Bragano called Mirk to inform him that he was planning to cash the Meridian Project check to loan the money to a friend. The following day, December 20, 2004, Mirk sent Bragano a letter informing him for the first time that he had stopped payment on the check. In the letter, Mirk explained that he distributed and applied the Meridian Project funds, among other things, toward the $40,000 claim he asserted he was owed for his work on the Montpelier project and the other limited liability corporations involved in the investment platform, as well as toward the $100,000 he argued he was owed as corporate counsel.

Upon receiving the letter of December 20, Bragano was furious with Mirk. However, his business partners urged Bragano to take no action at the time to protect their investment venture. In June 2005, the Montpelier project came to an unsuccessful end. At that time, Bragano hired a new attorney to secure the return of the Meridian Project funds. On August 11, 2005, new counsel held a meeting with Mirk to discuss the matter. Notably, the referee found that Mirk did not produce any invoices or billing statements at this meeting to support his claim that he was owed $40,000 for his work on Montpelier. Thus, the referee found that the parties did not resolve their dispute at the August 2005 meeting. Ultimately, Mirk never returned the $31,487.50 he had withdrawn from Bragano’s trust funds, and in June 2006 Bragano filed a complaint with the Bar.

Given the conduct described, the referee found:

The clear and convincing evidence shows ■that Respondent did not have an agreement to be paid a $40,000 flat fee for work done in relation to Montpelier. Although it is not necessary to have a written fee agreement in this instance, the clear and convincing evidence is that Respondent did not have a written fee agreement or a verbal fee agreement for a $40,000 flat fee for work performed on Montpelier.
The evidence cited by Respondent to support the alleged flat fee agreement is not persuasive and is directly contradicted by the record. Respondent’s claim of an agreement for a $40,000 flat fee is flatly contradicted by Bragano and further undermined by the testimony of Bragano’s partner Lynch, and attorney Ricardo Roig. Respondent’s evidence consists of his own testimony, handwritten notes he claims to have made contemporaneously, or letters he wrote after the fact.

The referee recommended that Mirk be found guilty of violating Bar Rules 5-1.1(a) (a lawyer shall hold in trust, separate from the lawyer’s own property, property of clients or third persons that are in a lawyer’s possession in connection with a representation); 5-1.1(b) (money or other property entrusted to an attorney for a specific purpose, including advances for fees, costs, and expenses, is held in trust and must be applied only to that purpose); 5-1.1(e) (upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person); and 5-1.2(g) (failure of a member to timely produce trust accounting records shall be considered as a matter of contempt).

The referee found several aggravating factors: (1) prior disciplinary offenses; (2) dishonest or selfish motive; (3) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (4) substantial experience in the practice of law; and (5) indifference toward making restitution. The referee also found one mitigating factor: (1) favorable reputation for character and professional skill.

As to the disciplinary sanction, the referee considered the Florida Standards for Imposing Lawyer Sanctions and case law, together with the aggravating and mitigating factors, and has recommended that Mirk be disbarred from the practice of law in Florida. The referee also awarded costs to the Bar in the amount of $11,504.95.

Mirk has filed a petition for review in this case, raising a number of challenges to the referee’s report. We approve the referee’s findings of fact and his recommendations of guilt without further discussion. The findings are supported by competent evidence and those findings support the recommended finding of guilt. Mirk also challenges the referee’s recommended discipline. He urges the Court to disapprove the referee’s recommendation for disbarment. However, as discussed below, we conclude that the referee’s recommended sanction based on the findings is supported in the Standards and case law.

ANALYSIS

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

The referee’s findings of fact demonstrate that Mirk misappropriated $31,487.50 in client funds held in his trust account. This Court has long held that attorney misconduct involving the misuse or misappropriation of client funds is unquestionably one of the most serious offenses a lawyer can commit. See Fla. Bar. v. Martinez-Genova, 959 So.2d 241, 246 (Fla.2007). Indeed, disbarment is presumed the appropriate discipline when an attorney engages in this type of misconduct. Id.; see also Fla. Bar v. Valentine-Miller, 974 So.2d 333, 338 (Fla.2008) (holding that disbarment is the presumptively appropriate sanction, under both the Florida Standards for Imposing Lawyer Sanctions and case law, when a lawyer misappropriates trust funds). We have also emphasized that the presumption of disbarment is exceptionally weighty when the attorney’s misuse is intentional rather than a result of neglect or inadvertence. See Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla.2000).

In defense of his actions in this case, Mirk asserts that he was owed a $40,000 flat fee for his work on Montpelier and each of the other limited liability corporations he planned to establish for the investment platform. Thus, he contends that he was entitled to retain the Meridian Project funds held in trust as payment toward Bragano’s debt. We disagree. At the outset, we note that Mirk’s compensation arrangement was never reduced to writing. When a lawyer fails to place an agreement for representation in writing, he or she is always at risk of becoming involved in a fee dispute with the client. In situations such as the instant case, absent a written agreement, the referee is required to consider all evidence and weigh the parties’ testimony at the disciplinary hearing and evaluate credibility. We have long held that because the referee is in the best position to judge the credibility of the witnesses, we defer to the referee’s assessment and his resolution of the conflicting testimony. See Fla. Bar v. Batista, 846 So.2d 479, 483 (Fla.2003).

Moreover, the facts here demonstrate that Mirk made a number of secret withdrawals from his client trust account without his chent’s knowledge or permission. When lawyers do face disputes over fees with their clients, the Bar Rules certainly do not permit attorneys to resolve such disputes in this manner. There is never a valid reason for misappropriating client funds held in trust. See Fla. Bar v. Valentine-Miller, 974 So.2d at 338. Once again, we emphasize to the members of the Bar that an attorney is never permitted to withdraw or otherwise use client funds held in trust except as specifically authorized under the Bar Rules. To engage in such conduct, a lawyer risks full disciplinary sanctions under the Rules Regulating the Florida Bar, including disbarment.

As we have stated, disbarment is presumed the appropriate discipline when an attorney misappropriates client money held in trust and Mirk simply has not presented any arguments to rebut the presumption in this case. The Florida Standards for Imposing Lawyer Sanctions applicable to Mirk’s misconduct state that disbarment is the appropriate sanction. See Fla. Stds. Imposing Law. Sanes. 4.11 (“Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury.”); Fla. Stds. Imposing Law. Sanes. 4.61 (“Disbarment is appropriate when a lawyer knowingly or intentionally deceives a client with the intent to benefit the lawyer or another regardless of injury or potential injury to the client.”).

Additionally, this Court has previously imposed disbarment for violations of the ethical rules similar to those found in this case. See Fla. Bar v. Brownstein, 953 So.2d 502 (Fla.2007) (disbarring respondent who misappropriated $20,000 in client funds held in trust, a portion of the total amount entrusted to the respondent by the client for the purpose of paying a bankruptcy settlement); see also Fla. Bar v. Barley, 831 So.2d 163 (Fla.2002) (disbarring respondent who misappropriated $76,760.68 in client funds held in trust, making a series of withdrawals from the funds over a period of three months, and ultimately depleting the entire amount).

In sum, after considering the referee’s factual ’ findings, the rules violated, the Standards, and the case law, we approve the referee’s recommendation of disbarment as the appropriate sanction.

CONCLUSION

Accordingly, we approve the referee’s findings of fact, recommendations of guilt, recommended sanction, and award of costs. R. Patrick Mirk is hereby disbarred. The disbarment will be effective thirty days from the filing of this opinion so that Mirk can close out his practice and protect the interests of existing clients. If Mirk notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the disbarment effective immediately. Mirk shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Mirk shall accept no new business from the date this opinion.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from R. Patrick Mirk in the amount of $11,504.95, for which sum let execution issue.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . The referee found that Mirk earned some, but not all, of the $750 fee advance. Lyles eventually became dissatisfied with Mirk’s representation and demanded a refund of the $750 payment. The referee found that Mirk did issue the refund.

      . Concerning the violation of rule 5-1.2(g), the referee’s report in this case appears to contain a scrivener’s error which indicates that Mirk is guilty of violating Bar Rule 5-1.1(g) (pertaining to interest on attorney trust accounts). However, based on the record before us, it is apparent that the referee intended to find Mirk in violation of rule 5-1.2(g).

      . The referee found that Mirk received an admonishment for minor misconduct in 2003 for failing to timely communicate with his client regarding a post-judgment collection matter involving funds deposited into his trust account. The matter was eventually resolved and Respondent provided the client with the promised financial document.

      . The referee found that on October 13, 2006, the Bar sent a letter to Mirk requesting that he provide his trust account records for its review. Mirk objected to the Bar’s request and refused to provide the records. The Bar then served Mirk with a subpoena, directing him to produce his trust account records. Mirk again failed to comply. Accordingly, in February 2007, a Florida Bar grievance committee entered a finding of non-compliance, and the Bar filed a petition for contempt in this Court. See Fla. Bar v. Mirk, No. SC07-394 (petition filed Mar. 1, 2007). On March 7, 2007, we issued an order directing Mirk to show cause why he should not be held in contempt of Court and suspended until he complied with the subpoena. Ultimately, we determined that Mirk did not show cause and, on May 14, 2007, we entered an order suspending him from the practice of law. See Fla. Bar v. Mirk, 958 So.2d 921 (Fla.2007) (table). Several months later, the Bar filed a "Certificate of Compliance with Subpoena Duces Tecum” and, on September 19, 2007, Mirk was reinstated. See Fla. Bar v. Mirk, 967 So.2d 199 (Fla.2007) (table).