author: MARSTILLER, J.

text:
    Homer R. FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4394.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2011.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Homer Franklin appeals the five-year prison sentence he received after violating his drug offender probation (“VOP”). He argues the trial court had no jurisdiction over him because the maximum permissible probationary term — live years — expired before the VOP affidavit was filed. The State counters that Franklin absconded for approximately two years, tolling the probationary period and rendering the VOP affidavit timely. We affirm the sentence because we agree, although for different reasons, that tolling occurred.

In 2002, case number 2002-377CF, Franklin pled nolo contendere to possession of cocaine, a third degree felony with a maximum allowable penalty of five years in prison. See § 89S.13(6)(a), Fla. Stat. (2002); § 775.082(3)(d), Fla. Stat. (2002). On October 16, 2002, the trial court placed Franklin on two years’ probation. On April 2, 2003, a VOP affidavit was filed, and the court issued a warrant for Franklin’s arrest the same day. Thereafter, an amended VOP affidavit was filed, and an amended arrest warrant issued July 1, 2003.

More than two years later, on November 1, 2005, the Wakulla County Sheriffs Office arrested Franklin on warrants issued in case numbers 2003-498CF and 2003-499CF., Upon Franklin’s nolo contende-re plea to the new charges and to the 2003 VOP, the court disposed of all three cases in a single final judgment rendered December 14, 2005. The court revoked Franklin’s probation in case number 2002-377CF and for all cases sentenced him to two years of community control, with 22 months in the Wakulla County Jail Bed Program as a condition, followed by one year of drug offender probation. The court credited Franklin with 46 days time served and ordered the sentences to run concurrently.

On April 25, 2007, an Affidavit of Violation of Community Control (“VOCC”) was filed and a warrant issued for Franklin’s arrest. The Sheriffs Office took him into custody on December 21, 2007. The court revoked community control on February 13, 2008, and again placed Franklin on probation — this time felony drug offender probation for one year followed by two years’ probation. The judgment and revocation order applied to Franklin’s three cases, and the probationary terms ran concurrently.

Less than one month later, on March 5, 2008, Franklin again was taken into custody, via warrantless arrest, for violating his drug offender probation. The corresponding VOP affidavit was filed March 7, 2008. Franklin admitted the violation, and on August 21, 2008, the court revoked his probation and sentenced him as follows. In case number 2002-377CF, five years in prison with credit for 597 days time served. In case number 2003-498CF, 15 years in prison on Count I and five years in prison on Count II with credit for 595 days’ time served. And in case number 2003M:99CF, 15 years in prison on Count I and five years in prison on Count II with credit for 595 days time served. All sentences are to be served concurrently.

Franklin asserts the trial court lost jurisdiction over him in case number 2002-377CF on October 16, 2007, or five years after initially placing him on probation. Consequently, the court could neither revoke his community control in February 2008 and order drug offender probation nor entertain the VOP affidavit filed March 7, 2008. See, e.g., Yevchak v. State, 952 So.2d 1286, 1287 (Fla. 2d DCA 2007) (court lacked jurisdiction to revoke defendant’s probation and sentence him further after defendant, due to a series of violations following the initial three-year placement on probation, already had served more than five years of probation for a third degree felony). Franklin further asserts there is no evidence in the record that he absconded from supervision as the State contends, and thus, no basis upon which to find tolling of his probationary period. See Francois v. State, 695 So.2d 695, 697 (Fla.1997) (stating that “[o]ne who absconds from supervision is no longer under the controlling arm of the state,” and that “absconding from probation tolls the period”).

Franklin’s probationary period indeed was tolled, but not strictly because he absconded from supervision. Rather, under section 948.06(1), Florida Statutes (2002), “[u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation.” A warrant issues “when signed by the magistrate.” § 901.02(1), Fla. Stat. (2002). Pursuant to section 948.06(1), then, Franklin’s probationary period was tolled for roughly 32 months from April 2, 2003, when the court issued the first VOP arrest warrant, to December 14, 2005, when the court revoked probation and ordered community control. This tolling period extended Franklin’s presumptive maximum probationary period from October 2007 to approximately June 2010. Therefore, the court had jurisdiction to revoke Franklin’s community control and place him on drug offender probation in February 2008, and to revoke his probation and impose a prison sentence in August 2008. That Franklin absconded from supervision may explain the substantial delay between issuance of the VOP arrest warrant in 2003 and Franklin’s eventual apprehension in 2005. But we see no reason to address whether there is evidence of absconding when section 948.06(1) plainly states the probationary period tolls from the time the warrant issues to the time the court rules on the VOP, and the record reflects the relevant dates. Cf. Owens v. State, 911 So.2d 181 (Fla. 1st DCA 2005) (remanding for evidentiary hearing on trial court’s jurisdiction to revoke appellant’s probation where the state argued the probationary period was tolled while appellant was incarcerated on unrelated charges and absconded, but the appellate court could not make that determination from the record on appeal). Accordingly, the sentence on appeal is AFFIRMED.

PADOVANO and ROBERTS, JJ„ concur.

      . Franklin raises an additional issue about the timeliness of the trial court's order denying his rule 3.800(b)(2) motion. We see no need to address this issue because such a motion is deemed denied if not ruled upon within the time set forth in the rule. See Fla. R. Crim. P. 3.800(b)(1)(B), (b)(2)(B). Our analysis of the substantive issue on appeal is the same whether or not the trial court rendered a timely denial order.

      . See n. 4, infra.

      . The record before us does not contain the arrest report on the VOP warrant.

      . The court adjudicated Franklin guilty of sale of a controlled substance (Count I) and possession of a controlled substance (Count II) in case number 2003-498CF, and of sale of methamphetamine (Count I) and possession of methamphetamine (Count II) in case number 2003-499CF:

      . The sentences imposed in case numbers 2003-498CF and 2003-499CF are not at issue in this appeal.

      . Franklin’s two subsequent community control and probation violations may have yielded additional tolling periods.


source: Caselaw Access Project

author: WETHERELL, J. WOLF, J.,

license: Public Domain

text:
    Barth KILBURN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3614.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2011.
    Nancy A. Daniels, Public Defender and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Anne C. Conley and Therese A. Savona, Assistant Attorneys General, Tallahassee, for Appellee.
   WETHERELL, J.

Barth Kilburn appeals the trial court’s denial of his two dispositive motions to suppress. We find no merit to Kilburn’s argument that law enforcement lacked the reasonable suspicion necessary to stop his vehicle and, therefore, affirm the denial of the first motion to suppress without further comment. However, because the state failed to establish that the post-arrest “inventory search” of Kilburn’s vehicle was conducted in accordance with standardized criteria, we reverse the trial court’s denial of the second motion to suppress.

On September 26, 2009, at approximately 1:30 a.m., a Santa Rosa County deputy sheriff observed Kilburn’s pick-up truck weaving and crossing the centerline of the road several times over the course of approximately two and one-half miles. The deputy suspected that the truck’s driver was under the influence, so he activated his lights to initiate a traffic stop. The truck did not immediately stop and, when it did, it almost hit a garbage can sitting near the road. Kilburn was arrested for driving under the influence (DUI), and the state charged the offense as a felony based upon Kilburn’s three prior DUI convictions.

Kilburn’s truck had to be towed after his arrest because it was located in an unsafe location on the side of a busy road, and as part of the impoundment process, the deputy conducted an “inventory search” of the truck. The deputy testified that Sheriffs Office policy required an inventory search to be done whenever a vehicle is towed, but that there were no standardized criteria or procedures for conducting such a search. During the search, the deputy found marijuana (less than 20 grams) and pills that turned out to be alprazolam and hydrocodone. Kilburn was charged with possession of these drugs in addition to the felony DUI charge.

In January 2010, Kilburn filed a motion to suppress the drugs and all evidence related to the accusation that he was DUI upon the grounds that the traffic stop was an unlawful seizure. The trial court denied the motion after an evidentiary hearing, finding that the stop was justified because the deputy had a reasonable suspicion that Kilburn was impaired based upon his observations of Kilbum’s driving. In May 2010, Kilburn filed a motion to suppress the drugs found during the inventory search upon the grounds that the search was conducted without a warrant and no exception to the warrant requirement applied. The trial court denied the motion after an evidentiary hearing, finding that the search was part of a valid inventory search which was an exception to the warrant requirement.

Kilburn thereafter pled no contest to felony DUI, possession of marijuana, and possession of alprazolam, reserving his right to appeal the denial of the two motions to suppress. The trial court adjudicated Kilburn guilty and sentenced him to 60 days in jail followed by 36 months of probation on the felony offenses (DUI and possession of alprazolam), with a concurrent 30 days in jail and 12 months of probation for the misdemeanor possession of marijuana offense.

A trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness. Connor v. State, 80S So.2d 598, 608 (Fla.2001); State v. Gandy, 766 So.2d 1234 (Fla. 1st DCA 2000). Where, as here, the appellant does not challenge the factual findings underlying the trial court’s ruling, our review is de novo. Connor, 803 So.2d at 608.

A warrantless search is per se unreasonable under the Fourth Amendment subject to a few well-defined exceptions. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The state has the burden to prove that an exception to the warrant requirement applies. See Hilton v. State, 961 So.2d 284, 296 (Fla.2007). Here, the state relied on the exception that allows law enforcement to conduct an inventory search of an impounded vehicle. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (observing that “inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment”); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (discussing the justifications for inventory searches of impounded vehicles and explaining that federal and state courts have consistently held that inventory searches conducted pursuant to standard police procedures are reasonable).

In order for this exception to apply, the inventory search must be “conducted according to standardized criteria.” State v. Wells, 539 So.2d 464, 468 (Fla. 1989) (quoting Bertine, 479 U.S. at 374 n. 6, 107 S.Ct. 738), aff'd. by Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). The requirement for standardized criteria serves to limit police discretion in determining the scope of the search and ensures that the police will not abuse the exception and use the inventory search as a subterfuge for a criminal investigatory search. Id. at 469; see also Rolling v. State, 695 So.2d 278, 294 (Fla.1997) (explaining that the test for determining the validity of an inventory search is one of reasonableness and “[t]he reasonableness of a purported inventory search is dependent upon it being a true good-faith inventory search and not a subterfuge for a criminal, investigatory search”).

Here, the trial court did not make any findings regarding the existence of, or the deputy’s compliance with, standardized criteria in conducting the inventory search of Kilburn’s truck. Although the deputy testified that it was standard Sheriffs Office policy to conduct an inventory search whenever a vehicle was towed, he also testified that there were no standardized criteria for performing such a search. Additionally, the state did not present any evidence that it was standard Sheriffs Office policy to open closed containers found during the search, such as the pill bottle in Kilburn’s truck where the drugs were found. Accordingly, under these circumstances, the trial court erred in denying Kilburn’s motion to suppress the drugs found in his truck. See Wells, 539 So.2d at 469 (reversing denial of motion to suppress based upon the absence of a standardized policy requiring the opening of closed containers found during a legitimate inventory search); Beezley v. State, 863 So.2d 386 (Fla. 2d DCA 2003) (reversing and remanding for discharge because trial court should have granted dispositive motion to suppress where no indication that police conducted inventory search according to standardized criteria); Patty v. State, 768 So.2d 1126 (Fla. 2d DCA 2000) (directing granting of motion to suppress where state failed to present evidence of standardized criteria used in inventory search); Roberson v. State, 566 So.2d 561 (Fla. 1st DCA 1990) (holding that search of closed can was illegal where evidence did not show that it was standard procedure to open closed containers).

Based upon the foregoing, we reverse the trial court’s order denying Kilburn’s second motion to suppress, and because that motion was dispositive of the possession of marijuana and possession of al-prazolam offenses, we remand with directions that Kilburn be discharged on those offenses. In all other respects, Kil-burn’s judgment and sentence is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

HAWKES, J., concurs; WOLF, J., concurs with opinion.

WOLF, J.,

Concurring.

In light of Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990), and Roberson v. State, 566 So.2d 561 (Fla. 1st DCA 1990), I am compelled to concur with the majority opinion.

      . The arrest report states that the marijuana was found in a small plastic baggie and that the hydrocodone and alprazolam were found in a small pill bottle, but the transcript of the suppression hearing states that the deputy "found [the] marijuana in a small pill bottle that contained pills inside that middle console of the truck” (emphasis added). The state has not suggested that the court reporter incorrectly transcribed the deputy's testimony (e.g., typing "in” instead of "and”) and, thus, our review is premised upon the marijuana being found in a closed pill bottle rather than in a clear baggie.

      . The state nol prossed the possession of hy-drocodone charge.

      . The decision to impound the vehicle must also be made in accordance with standardized criteria. See Rodriguez v. State, 702 So.2d 259, 262 (Fla. 3d DCA 1997) (quoting Bertine, 479 U.S. at 375, 107 S.Ct. 738). However, Kilburn does not challenge the deputy’s decision to impound his truck.


author: PER CURIAM.

text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. MIAMI AIRPORT HILTON/HILTON HOTELS CORP., Appellees.
    No. 1D10-4406.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2011.
    Cynthia Arnold Shaw of the Department of Financial Services, Tallahassee, for Appellant.

      Douglas W. Barnes of Douglas W. Barnes, P.A., Miami Lakes, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, the Special Disability Trust Fund (Fund) challenges the judge of compensation claims’ (JCC’s) finding that reimbursement of the employer/carrier’s (E/C’s) 2001 reimbursement request was not barred by the statute of limitations. We agree the JCC misapplied prior case law and thus reverse the awarded reimbursement.

The facts are not in dispute. The E/C timely filed a notice of claim, the first step in the reimbursement process. See § 440.49(2)(g), Fla. Stat. (Supp.1990). The Fund notified the E/C that the claim was appropriate for reimbursement in December 1996, and amended its offer of reimbursement in January 1997 to include the settlement of the claim.

The Fund received the E/C’s reimbursement request, the second step in the reimbursement process on August 3, 2001. The E/C did not thereafter submit anything further to the Fund, nor did it receive any communication from the Fund until May 2008 when the Fund notified the E/C that the statute of limitations had expired on its 2001 claim for reimbursement.

In rejecting the Fund’s contention that the statute of limitations barred reimbursement on the 2001 submission, the JCC erroneously equated the two steps required for reimbursement and relied on Special Disability Trust Fund v. Rescare Home Health, Inc., 930 So.2d 746 (Fla. 1st DCA 2006). In Rescare, the notice of claim was timely filed but the Fund never accepted the claim as reimbursable. Id. at 748. Because a request for reimbursement could not be submitted until the Fund determined the E/C was entitled to reimbursement, the statute of limitations did not begin to run on the E/C’s time to file the reimbursement request. Id. This court “declined, as did the JCC, to adopt additional statutes of limitations for the first step in the reimbursement process.” Id.

Here, it is undisputed that the Fund accepted the claim as reimbursable, thus step one was complete. The E/C thereafter began its compliance with step two of the reimbursement process by submitting its reimbursement request in August 2001. When no reimbursement was received within one year, the E/C’s cause of action against the Fund accrued. See Associated Coca Cola v. Special Disability Trust Fund, 508 So.2d 1305, 1307 (Fla. 1st DCA 1987) (holding E/C on notice at end of statutory “intervalfs] that reimbursement request for that interval have either been accepted or rejected”). Because the E/C’s contest of a denied reimbursement request is based on a statutory liability, section 95.031, Florida Statutes, provides that such an action must be instituted within four years. Id. at 1306. Based on the holding in Associated Coca Cola, the E/C’s right to contest the failure of the Fund to act on the 2001 reimbursement request expired in 2006, long before the E/C filed its 2008 application for hearing.

Accordingly, the order requiring the Fund to reimburse the E/C for the 2001 reimbursement request is REVERSED.

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


author: WELLS, Judge.

text:
    L.A. SPORTS BAR & GRILL, INC., and Aharon Emano, Appellants, v. J & J SPORTS PRODUCTIONS, INC., a California corporation, Appellee.
    No. 3D10-2830.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Aharon Emano, in proper person., for appellant.
    Levey Filler Rodriguez Kelso & De Bianchí and John R. Kelso, Miami, for appel-lee.
    Before WELLS, SALTER, and EMAS, JJ.
   ON CONFESSION OF ERROR

WELLS, Judge.

On Appellee, J & J Sports Productions, Inc.’s proper confession of error, we reverse the instant summary final judgment entered against L.A. Sports Bar & Grill and Aharon Emano, and remand for further proceedings below.

Reversed and remanded.


text:
    Willard BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3279.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Willard Bryant, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850(f).


text:
    Derrick KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3354.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Rehearing Denied March 15, 2011.

      Derrick Knight, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 30 So.3d 610 (Fla. 3d DCA 2010).


text:
    Edwin R. PLANELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-87.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Grigaltchik & Rowe and Adam Rowe, Jacksonville, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before GERSTEN, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Floyd v. State, 18 So.3d 432, 443-44 (Fla.2009); Tingley v. State, 549 So.2d 649 (Fla.1989).


text:
    Alexander BRAVO and Ailibis J. Bravo, Appellants, v. NATIONAL CITY BANK, Successor by Merger to National City Bank of Indiana, Appellee.
    No. 3D10-1828.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Alexander Bravo and Ailibis J. Bravo, in proper persons.
    Shutts & Bowen, and Temple Fett Kearns, Fort Lauderdale, for appellee.
    Before GERSTEN, WELLS, and SALTER, JJ.
   PER CURIAM.

On Confession of Error

Upon consideration of the appellee’s response and statement of error filed February 7, 2011, the final summary judgment of foreclosure and the order denying motion for rehearing are reversed; this case is remanded for further proceedings including, but not limited to, amendments to the parties’ pleadings and a re-filing of any motions by the parties thereafter.

Reversed and remanded.


text:
    Franklin MONFISTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5232.
    District Court of Appeal of Florida, Fourth District.
    Feb. 23, 2011.
    Franklin Monfiston, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Franklin Monfiston challenges the circuit court’s order denying his motion for postconviction relief as untimely filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant’s motion was filed within two years of the date that the Supreme Court of Florida disposed of his petition for review of this court’s decision on direct appeal. As such, his motion was timely filed. See Ortiz v. State, 4 So.3d 794 (Fla. 4th DCA 2009); Witt v. State, 861 So.2d 1292 (Fla. 5th DCA 2004); Perkins v. State, 845 So.2d 273 (Fla. 2d DCA 2003); Cargle v. State, 800 So.2d 698 (Fla. 1st DCA 2001).

Accordingly, we reverse and remand for the circuit court to entertain appellant’s motion for postconviction relief.

Reversed and Remanded.

STEVENSON, MAY and DAMOORGIAN, JJ., concur.


text:
    D.T. Mother of N.N., a minor child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D10-5313.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2011.
    Crystal McBee Frusciante, Jupiter; Scott W. Tatum, Assistant Regional Conflict Counsel, Pensacola; Susan M. Barber, Assistant Regional Conflict Counsel; Defender, Tallahassee, for Appellant.
    Angela M. Hoick, Department of Children and Families, Pensacola; David G. White, Pensacola; Patrick J. Hammergren of Shell, Fleming, Davis & Menge, Pensacola; Kathryn E. Errington, Guardian Ad Litem, Pensacola; Ward L. Metzger of Children’s Legal Services, Jacksonville; and Kelley Sehaeffer, Guardian Ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

In this juvenile dependency case, the appellant seeks review of an order of the trial court denying her motion for reunification with her minor child, N.N. She argues that the case must be remanded, because the trial court failed to make the required findings under section 39.621(10), Florida Statutes and because there was no competent substantial evidence in the record to support the court’s conclusion that reunification would be detrimental to the child. We conclude that the evidence was sufficient to support the trial court’s ruling. As to the statutory findings, we are compelled to affirm, because the appellant failed to preserve this issue by a motion for rehearing or to otherwise bring the claimed deficiency to the attention of the trial court at a point when it could have been corrected. See Simmons v. Simmons, 979 So.2d 1063, 1064-65 (Fla. 1st DCA 2008); Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007).

Affirmed.

KAHN, PADOVANO, and CLARK, JJ„ concur.


text:
    MIAMI-DADE COUNTY, Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee.
    No. 1D09-4382.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    R.A. Cuevas, Jr., Miami-Dade County Attorney and Dennis A. Kerbel, Assistant County Attorney, Office of County Attorney, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Rob Johnson, Assistant Attorney General, Office of the Attorney General; David L. Jordan, Assistant General Counsel, Florida Department of Community Affairs, Tallahassee, for appellee Department of Community Affairs.
    Robert Hartsell and Richard Grosso, Everglades Law Center, Inc., Fort Laud-erdale, for appellees/intervenors below National Parks Conservation Assoc. & 1000 Friends of Florida.
   PER CURIAM.

Appellant Miami-Dade County appeals the final agency action of the Administration Commission, pertaining to Miami-Dade County’s amendment of its comprehensive plan under the “Local Government Comprehensive Planning and Land Development Regulation Act.” §§ 163.3161, et seq., Fla. Stat. Because the appellant has failed to show grounds for remand or setting aside the agency action, the Administration Commission’s final agency action is affirmed.

The official actions culminating in this appeal began with Miami-Dade County’s enactment of the ordinance amending the “future land use” element of its comprehensive plan to expand its “Urban Development Boundary.” The County’s comprehensive plan contemplates such expansion of this boundary when, in order to maintain adequate development capacity, additional commercial land supplies are needed. As provided in the plan, the determination of “need” is to be “through the plan review and amendment process.”

After the amendment was codified, the County transmitted the amendment to the Department of Community Affairs, as required by section 163.3184(7), Florida Statutes. The Department of Community Affairs reviewed the amendment and issued its notice of intent to find the amendment “not in compliance” with certain policies in the County’s plan, administrative rules applicable state-wide, the state comprehensive plan set forth in the Florida Statutes, and the South Florida Strategic Regional Plan. § 163.3184(8), Fla. Stat. In accordance with section 163.3184(10), Florida Statutes, the matter was then submitted to an administrative law judge (“ALJ”) for proceedings under sections 120.569 and 120.57, Florida Statutes. After eight days of evidentiary hearings, during which evidence was submitted by Miami-Dade County, the Department, and the interve-nors aligned with each of them, the ALJ submitted a second corrected recommended order to the Administration Commission. § 163.3184(10)(b), Fla. Stat. In addition to the recommended order, the Administration Commission considered and ruled on the numerous exceptions filed by the parties, in accordance with section 120.57(l)(k), Florida Statutes.

Pursuant to section 120.57(l)(i), Florida Statutes, the Administration Commission’s final order adopted the second corrected recommended order with modifications prompted by some of the exceptions, and stated with particularity its reasons for modifying conclusions of law where applicable. This final order was the conclusion of the proceedings under section 163.3184, Florida Statutes, and was appealable to this court as provided by section 120.68, Florida Statutes.

The scope of the Administration Commission’s review of the ALJ’s recommended order is limited by the provisions of section 120.57(l)(i), Florida Statutes. Nothing in the record demonstrates that the Administration Commission exceeded its review authority or failed to comply with section 120.57(l)(i).

Likewise, judicial review of the Administration Commission’s final agency action is limited by statute. Section 120.68(8), Florida Statutes, requires this court to affirm the Administrative Commission’s final agency action unless it finds one of the grounds listed in that statute. As provided in section 120.68(7), Florida Statutes:

(7) The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when if finds that:
* * ⅜
(b) The agency’s action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact;
(d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or
(e) The agency’s exercise of discretion was:
1. Outside the range of discretion delegated to the agency by law;
* * ⅜
4. Otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.

Miami-Dade County’s arguments on appeal do not point out any finding of fact by the Administration Commission, either adopted from the ALJ’s recommended order or found from the Administration Commission’s review of the record, that was not supported by competent, substantial evidence in the record of the chapter 120 hearing. Likewise, the record does not reveal any misinterpretation of a provision of law by the Administration Commission, or that the Administration Commission exercised its discretion in violation of any constitutional or statutory provision.

Because the appellant failed to demonstrate any ground for remand or setting aside the final agency action of the Administration Commission, as provided in section 120.68(7), Florida Statutes, the Administration Commission’s final order is AFFIRMED.

KAHN, PADOVANO, and CLARK, JJ„ concur.

      .The Administration Commission consists of the Governor and Cabinet. § 163.3164(1), Fla. Stat.

      . Part of the “Growth Management Act,” Chapter 85-55, Laws of Florida.

      . Pursuant to the statute, "[t]he agency [Administration Commission] may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.” As for the ALJ’s conclusions of law, the Administration Commission could reject or modify the conclusions of law or interpretation of administrative rules, but "must state with particularity its reasons for rejecting or modifying such conclusions of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.” § 120.57(1)(Z), Fla. Stat.


text:
    Randy Ray LOCKHART, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6429.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    James Owens, Public Defender, and Clayton E. Taylor, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the restitution order rendered on June 18, 2010, in Escambia County Circuit Court case number 2010-CF-000036A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D).

KAHN, DAVIS, and HAWKES, JJ., concur.


text:
    Charles Edward BROWN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and JCA Ventures, Inc. Deal Tire Wheel, Appellees.
    No. 1D10-5831.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Charles Edward Brown, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Florida Unemployment Appeals Commission, for Appellees.
   PER CURIAM.

DISMISSED. Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

The appellees’ Motion to Dismiss, served January 24, 2010, is denied.

LEWIS, CLARK, and ROWE, JJ., concur.


author: ROBERTS, J.

text:
    James HASSELBACK, Appellant, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Daniel G. Wentz, and Doris Wentz, Appellees.
    No. 1D10-1850.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Kenneth G. Oertel and Timothy Perry of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Appellant.
    Greg Munson, General Counsel; Kelly Russell, Senior Assistant General Counsel; and David K. Thulman, Tallahassee, for Appellee Florida Department of Environmental Protection.
    Thomas G. Tomasello of Thomas G. To-masello, P.A.; M. Drew Parker and Scott Shirley of Ard, Shirley & Rudolph, P.A., Tallahassee, for Appellees Daniel G. and Doris Wentz.
   ROBERTS, J.

This is an appeal of a final order of the Department of Environmental Protection (DEP). In that order, DEP dismissed as untimely a petition filed by property owner James Hasselback challenging DEP’s issuance of a coastal construction control line permit on an adjacent property. DEP provided written notice of the issuance of the permit to Rick Barnett, another adjacent property owner, and the Oertel Law Firm, which had previously requested notice of any such agency action. The issue before DEP in determining the timeliness of the petition was whether the notice provided to Barnett and the law firm was imputed to Hasselback, thereby rendering the petition untimely. DEP found that the notice was imputed to Hasselback because Barnett was acting as Hasselback’s agent and the law firm was Hasselback’s attorney of record at the time.

DEP’s findings, however, are not supported by competent, substantial evidence in the record. There is no evidence that a principal-agent relationship existed between Hasselback and Barnett at the time of the notice. Barnett’s uncontroverted testimony at the hearing was that he did not inform Hasselback of the permit until three years after the notice. There is also no evidence that an attorney-client relationship existed between Hasselback and the law firm at the time of the notice. Hasselback’s uncontroverted testimony at the hearing was that his attorney-client relationship with the law firm ended a little more than a year before the notice. Although the law firm requested notice of any agency action relating to the adjacent property, that request did not reference Hasselback.

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion. See § 120.68(7)(b), Fla. Stat. (2010) (providing that a reviewing court shall remand a case for further proceedings consistent with the court’s decision or set aside agency action if the agency’s action depends on any finding of fact that is not supported by competent, substantial evidence).

PADOVANO and MARSTILLER, JJ., concur.


author: BENTON, C.J.

text:
    Roosevelt LINDSAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1565.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Roosevelt Lindsay, Jr., appeals a judgment adjudicating him guilty of two third-degree felonies (forgery of a written instrument and uttering a forged instrument) following a violation of probation hearing. Originally the trial court had withheld adjudication of guilt. After hearing the evidence at the probation hearing, the trial court found that he had violated a term of his probation, but also found that the violation was not willful and substantial. The state concedes that finding a violation was error.

While “[t]he trial court is vested with broad discretion to determine whether a probationer has violated a condition of probation,” Williamson v. State, 43 So.3d 843, 845 (Fla. 1st DCA 2010), “[t]o establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996) (citing Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995); Thorpe v. State, 642 So.2d 629, 629 (Fla. 1st DCA 1994)). Whether conduct which could constitute a violation of probation was willful is a question of fact. See Riggins v. State, 830 So.2d 920, 921 (Fla. 4th DCA 2002). The trial court’s determination that appellant was not guilty of a willful and substantial violation of probation is amply supported by the record.

Because the trial court did not find Mr. Lindsay’s violation willful and substantial, it was without authority to revoke his probation or to adjudicate him guilty. See § 948.06(2)(e), Fla. Stat. (2009) (“If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty....”). See also Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994).

Section 948.06, Florida Statutes (1987), “provides the sole means by which the court may place additional terms on a previously entered order of probation or community control.” Clark v. State, 579 So.2d 109, 110 (Fla.1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110-11; § 948.06(1), Fla.Stat. (1987). Absent proof of a violation, the court cannot change an order of probation by enhancing the terms. Clark, 579 So.2d at 110-11.

Id. In fact, as the trial court noted in ordering termination of probation, by the time of the revocation hearing, the probationary term had expired. Accordingly, we reverse the adjudication of guilt as to both offenses, forgery of a written instrument and uttering a forged instrument.

Reversed.

DAVIS and THOMAS, JJ., concur.


text:
    Gregory Cornelius BYRD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0502.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Shelley C. Eckels, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeals of the judgments and sentences rendered on June 3, 2010, in Duval County Circuit Court case numbers 2009-15819-CFA and 2010-3189-CFA, is granted. Upon issuance of mandate in this cause, copies of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in each of the foregoing cases. The court notes that the Office of the Public Defender has been appointed to represent petitioner in the appeals authorized by this opinion.

KAHN, DAVIS, and HAWKES, JJ., concur.


text:
    D.T. Mother of S.R., A Minor Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D10-5325.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Crystal McBee Frusciante of Crystal McBee Law Firm, Jupiter, for Appellant.
    Kelley Schaeffer, Tavares and Ward L. Metzger, Jacksonville, for Appellee.
   PER CURIAM.

This is an appeal from a September 29, 2010, final order placing D.T.’s child, S.R., in a permanent guardianship and terminating protective supervision by the Department of Children and Families. D.T. challenges not the final order, but a preceding order denying her motion for reunification with S.R. The August 24, 2010, order also denied her motion for reunification with her other child, N.N. She separately appealed the order as to N.N., which this court affirmed in D.T. Mother of N.N. v. Florida Dep’t of Children & Families, 54 So.3d 632 (Fla. 1st DCA 2011). We now affirm the order as to S.R. for the reasons expressed in N.N.

AFFIRMED.

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


author: KAHN, J.

text:
    Haifa Y. ALKHOURY, former wife, Appellant, v. Basem J. ALKHOURY, former husband, Appellee.
    No. 1D10-5498.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    H. Leon Holbrook, III, for Appellant.
    Basem J. Alkhoury, pro se, Appellee.
   KAHN, J.

The trial court, without elaboration, granted a motion filed by appellee, the former husband, to dissolve a permanent injunction against domestic violence. Appellant, the former wife, seeks review. Because the circumstances that gave rise to the injunction had not changed, we reverse.

Having thoroughly reviewed the extremely graphic testimony presented at the hearing, we have no difficulty concluding that the circumstances that originally justified the injunction had not changed. We also conclude that the former husband made no showing that the injunction did not remain necessary to fulfill the purposes of section 741.80(6)(b), Florida Statutes (2010) (“In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate all relevant factors alleged.... ”).

Although section 741.30(10), Florida Statutes, provides that either party may move for modification or dissolution of a domestic violence injunction at any time, the statute does not directly speak to the burden of proof upon the movant. As a general rule, permanent injunctions, which remain indefinitely in effect, may be modified by a court of competent jurisdiction “whenever changed circumstances make it equitable to do so.... ” Hale v. Miracle Enters. Corp., 517 So.2d 102, 103 (Fla. 3d DCA 1987). The requirement to show changed circumstances applies equally to modification or dissolution of a protective injunction. See Knight v. Waters, 786 So.2d 1289 (Fla. 1st DCA 2001); Simonik v. Patterson, 752 So.2d 692 (Fla. 3d DCA 2000). Also, and by analogy, a party seeking an extension of a domestic violence injunction “must present evidence from which a trial court can determine that a continuing fear exists and that such fear is reasonable, based on all the circumstances.” Sheehan v. Sheehan, 853 So.2d 523, 525 (Fla. 5th DCA 2003).

Here, we find no indication whatsoever that the former husband presented evidence sufficient to successfully carry the burden of changed circumstances. We also find no evidence to demonstrate that the former wife did not reasonably maintain a continuing fear of becoming a victim of domestic violence. In the specific context of a domestic violence injunction, we believe the “changed circumstances” rule can best be carried out by a requirement that a party, against whom a domestic violence injunction has been entered, must, if such party seeks to dissolve the injunction, demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose. Because the former husband presented no such evidence, we find that the trial court should not have dissolved the injunction.

REVERSED and REMANDED with instructions that the injunction against domestic violence be reinstated.

DAVIS and HAWKES, JJ., concur.


text:
    Aisha VAN DYKE, Appellant, v. MATRIX EMPLOYEE LEASING and FWCIGA/First Commercial Insurance Company or FCIC c/o USIS, Appellees.
    No. 1D09-1393.
    District Court of Appeal of Florida, First District.
    March 2, 2011.

      C. James McCall of McCall & Erler, P.A., Jacksonville, and David A. McCranie of David A. McCranie, P.A., Orange Park, for Appellant.
    Kristin J. Longberry of Alvarez, Sambol & Winthrop, P.A., Orlando, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) which denies her claims for temporary partial disability (TPD) benefits and for the authorization of medical care. Because the order on appeal fails to demonstrate that the JCC, who did not have the benefit of our recent decision in Wyeth/Pharma Field Sales v. Toscano, 40 So.3d 795, 799 (Fla. 1st DCA 2010), utilized the appropriate legal standards in evaluating Claimant’s entitlement to TPD benefits from November 2, 2004, through February 28, 2005, we reverse and remand the JCC’s denial of TPD benefits for this period (along with the claims for penalties, interest, costs, and attorney’s fees pertaining to this issue) for additional proceedings. See id.; see also Alie v. Crum Staffing, Inc., 41 So.3d 1007 (Fla. 1st DCA 2010); Matthews v. Nat’l Pump Compressor, 41 So.3d 982 (Fla. 1st DCA 2010). We affirm the JCC’s denial of the remainder of compensation benefits at issue, because competent substantial evidence supports the JCC’s finding that Claimant no longer had work restrictions as of March 1, 2005. See § 440.15(4)(a), Fla. Stat. (2008) (stating TPD payable where medical conditions create restrictions on employee’s ability to return to work). Further, we affirm the JCC’s denial of the claim for authorization of a doctor, because competent substantial evidence supports the JCC’s finding's that Claimant failed to establish the medical necessity of this care. See Laxner v. Target Corp., 41 So.3d 396, 397 (Fla. 1st DCA 2010).

Accordingly, we REVERSE and REMAND the JCC’s denial of TPD benefits from November 2, 2004, through February 28, 2005, for additional proceedings, and AFFIRM the remainder of the order on appeal.

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


text:
    Robert Louis DEES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5638.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant was convicted of driving while license revoked as a habitual traffic offender, in violation of section 322.34(5), Florida Statutes (2009) (Count I); driving while license suspended, revoked or canceled with knowledge, in violation of section 322.34(2)(c), Florida Statutes (2009) (Count II); and driving without a valid license, in violation of section 322.03(1), Florida Statutes (2009) (Count III). All three counts arose out of the same offense. We affirm the appellant’s conviction on Count I without discussion. We reverse the appellant’s conviction on Count II because Counts I and II are mutually exclusive. See Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002). We also reverse the appellant’s conviction on Count III. Dual convictions on Counts I and III violate double jeopardy because Count III is a necessarily lesser-included offense of Count I. See § 775.021(4)(b)3., Fla. Stat. (2009); Fla. Std. Jury Instr. (Crim.) 28.11(a).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions to vacate the appellant’s convictions on Counts II and III and resentence him on Count I.

WOLF, WEBSTER, and ROBERTS, JJ., concur.


text:
    In re Tanzanika Qiann RUFFIN.
    No. 2010-B-2544.
    Supreme Court of Louisiana.
    Jan. 14, 2011.
   PER CURIAM.

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

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

By way of background, Dwayne Anthony hired Philip Jenkins to paint a residence he occupied with his fiancée, Dandre James. Mr. Anthony and Ms. James paid for Mr. Jenkins’ services with a check in the amount of $375. The check was subsequently returned unpaid because it was drawn upon a closed account. Respondent, a lifelong friend of Mr. Jenkins, agreed to approach Mr. Anthony and ask him to make the check good or otherwise resolve the dispute. On October 15, 2004, respondent, while employed as an assistant district attorney in Orleans Parish, visited the Anthony residence and returned the dishonored check to Ms. James. During the visit, Ms. James advised that she would honor the check and gave respondent $200 towards the balance due. In response, respondent stated:

|2Girl, don’t you know that you shouldn’t be writing bad checks ... Well you know, I’m an assistant district attorney and you can’t be doing those kinds of things.

At the time, respondent conveyed her status as an assistant district attorney by wearing a badge on the outside of her suit and writing a cellular telephone number on the back of her business card.

On October 30, 2004, respondent returned to the Anthony residence. Mr. Anthony advised that he had owed no debt to Mr. Jenkins and, thus, would not honor the returned check. During the encounter, respondent engaged in a verbal altercation with Mr. Anthony and threatened him with arrest and prosecution if he failed to pay the balance due.

Thereafter, respondent self-reported her conduct to her employer and was subsequently terminated from her position in the Orleans Parish District Attorney’s Office. The Attorney General’s Office subsequently commenced an investigation into the matter. In March 2005, Assistant Attorney General Julie Cullen determined “that there is no evidence upon which to base a criminal charge” and closed the matter.

DISCIPLINARY PROCEEDINGS:

In 2009, the ODC filed one count of formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.7 (conflict of interest), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (threatening to present criminal or disciplinary charges solely to obtain an advantage in a civil ^matter). Respondent answered the formal charges but neither admitted nor denied the alleged misconduct.

This matter then proceeded to a formal hearing on the merits, at which respondent and the ODC introduced a joint stipulation of facts. In the stipulation, respondent admitted the facts as set forth above and agreed that she violated Rule 8.4 of the Rules of Professional Conduct. During the hearing, the parties stipulated that respondent’s conduct specifically violated Rules 8.4(a), 8.4(d), and 8.4(g). The parties also stipulated to the presence of several mitigating factors and agreed that no aggravating factors exist.

Hearing Committee Report

The hearing committee considered the evidence and testimony presented at the hearing and accepted the joint stipulation of facts as its factual findings. The committee further determined that respondent violated the Rules of Professional Conduct as stipulated to by the parties.

The committee found that respondent’s conduct violated a duty owed to the public, the legal system, and the legal profession. The committee noted that respondent did not appear to be aware that her conduct violated the Rules of Professional Conduct. Although respondent certainly knew she was recognizable as an assistant district attorney when she tried to collect the debt, her intent seemed to have been to resolve a dispute informally and keep the parties from getting embroiled in the legal system over a $375 issue. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee recognized that suspension is appropriate for conduct that is knowing while a public reprimand is appropriate for conduct that |4is negligent. Nonetheless, the committee concluded that “even if her conduct was knowing, the Committee believes that a reprimand is the appropriate sanction.”

In mitigation, the committee found the absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, inexperience in the practice of law (admitted 2004), character or reputation, imposition of other penalties or sanctions, and remorse. The board determined that no aggravating factors are present.

In light of the numerous mitigating factors present, the committee recommended respondent be publicly reprimanded.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee’s factual findings are supported by the evidence adduced at the hearing and/or by the parties’ stipulations. The board also determined that the committee correctly applied the Rules of Professional Conduct.

The board found that respondent violated a duty owed to the public, the legal system, and the legal profession. With respect to respondent’s mental state, the board determined that “knowledge of committing misconduct was inherent in respondent’s actions.” While the record does not indicate that significant injury resulted from respondent’s misconduct, the potential for injury to Mr. Anthony was inherent. By identifying herself as an assistant district attorney, respondent implied she could act upon the threat. After considering the ABA’s Standards for Imposing Lawyer \ Sanctions, the board determined that the applicable baseline sanction in this matter is suspension.

The board agreed with the mitigating factors found by the committee. The board also determined the committee correctly found no aggravating factors present.

Turning to the issue of an appropriate sanction, the board cited In re: Caillouet, 01-2461 (La.11/9/01), 800 So.2d 367. In Caillouet, an attorney represented a husband in a divorce matter. When the wife filed criminal battery charges against the husband, the attorney used his position as an assistant district attorney to obtain a continuance in the criminal case. The court subsequently accepted a petition for consent discipline and imposed a fully deferred six-month suspension, subject to six months of probation.

In the board’s view, the element of coercion present in the instant matter calls for a more serious sanction than the six-month, fully deferred suspension in Cail-louet. Nevertheless, the board felt the suspension should be minimal in light of the mitigating circumstances. Based on this court’s prior jurisprudence involving similar misconduct, the facts of this case, and the numerous mitigating factors present, the board recommended that respondent be suspended from the practice of law for six months, with all but thirty days deferred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In the instant matter, the parties stipulated that respondent used her position as an assistant district attorney to threaten criminal prosecution and gain an advantage in a civil matter. The parties also stipulated that respondent violated Rules 8.4(a), 8.4(d), and 8.4(g) of the Rules of Professional Conduct. The record supports these stipulations.

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

Respondent knowingly violated duties owed to the public, the legal system, and the legal profession. By threatening Mr. Anthony with criminal prosecution, respondent has demeaned the profession and engaged in conduct prejudicial to the fair administration of justice. The baseline sanction for this type of misconduct is a period of suspension from the practice of law.

|7There is little prior jurisprudence to establish a range of appropriate sanctions. While we agree with the board that Cail-louet is instructive, the conduct at issue in that case concerned conduct involving the conflict of interest provisions of Rule 1.7, which is not at issue in the instant case. Nonetheless, Caillouet is instructive insofar as it addresses professional misconduct by assistant district attorneys in their dual roles as prosecutors and private civil attorneys. In Louisiana State Bar Ass’n v. Harrington, 585 So.2d 514 (La.1990) (on rehearing), we imposed a nine-month suspension from the practice of law for similar misconduct. Although Harrington also involved other significant misconduct, including making false statements to a court and engaging in improper ex parte communications with a judge, the case supports the conclusion that some period of suspension is warranted for threatening criminal charges to gain an advantage in civil proceedings.

In the instant case, respondent admits she threatened to present criminal charges against an individual solely to obtain an advantage in a civil matter. According to respondent, she threatened Mr. Anthony “with arrest and prosecution if he failed to pay the balance” of the dishonored check. Due to the coercive nature of her statement, we agree that a period of actual suspension is warranted. In light of the several mitigating factors present, we also agree that the majority of respondent’s suspension should be deferred.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for six months, with all but thirty days deferred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Tanzanika Qiann IsRuffin, Louisiana Bar Roll number 28986, be and she hereby is suspended from the practice of law for six months, with all but thirty days deferred, subject to the condition that any additional misconduct by respondent within six months from the finality of this judgment may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


author: PER CURIAM

text:
    In re Edward L. BOUDREAUX, III.
    No. 2011-OB-0201.
    Supreme Court of Louisiana.
    Feb. 2, 2011.
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner, Edward L. Boudreaux, III, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by him with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon him by the Office of Disciplinary Counsel. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Robert L. BARRIOS.
    No. 2010-B-2582.
    Supreme Court of Louisiana.
    Feb. 4, 2011.
   PER CURIAM.

| ¶ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert L. Barrios, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. After being admitted to the practice of law in Louisiana in 1977, respondent’s first disciplinary infraction occurred in October 1984, when he was privately reprimanded by the Committee on Professional Responsibility for neglecting a legal matter. In November 1984, respondent was privately reprimanded for neglecting a legal matter and failing to communicate with a client. In June 1989, respondent was privately reprimanded for failing to cooperate in a disciplinary investigation. In March 1993, he was admonished by the disciplinary board for neglecting a legal matter, failing to communicate with a client, failing to promptly refund an unearned fee, and failing to cooperate with the ODC in an investigation. Later that year, respondent was twice admonished by the board for failing to cooperate with the ODC in its investigations.

|2In April 2006, this court suspended respondent from the practice of law for two years for engaging in a pattern of misconduct involving the neglect of legal matters, failure to communicate with clients, failure to account for and timely refund unearned fees, and failure to cooperate with the ODC in its investigation. In re: Barrios, 05-1932 (La.4/17/06), 929 So.2d 63 (hereinafter referred to as “Barrios /”). In November 2008, this court disbarred respondent for nearly identical misconduct. In re: Barrios, 08-1679 (La.11/10/08), 993 So.2d 1200 (hereinafter referred to as “Barrios II ”). Respondent remains disbarred from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

FORMAL CHARGES

08-DB-101

The Benoit Matter

In 2001, Alice Benoit hired respondent to handle her son’s divorce and child visitation and support matter. In April 2002, she paid respondent $625 to handle the property settlement portion, with $125 being deposited with the clerk of court for court costs. Respondent failed to proceed with the property settlement and failed to notify Ms. Benoit of his 2006 suspension from the practice of law. In October 2006, Ms. Benoit attempted to contact respondent to inquire about obtaining a refund of her $500 fee payment and a copy of her son’s file. When she was unable to get in touch with respondent, Ms. Benoit learned he was no longer practicing law.

In October 2006, Ms. Benoit filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint, necessitating the issuance of a | ¡¡subpoena for his sworn statement. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

09-DB-079

Count I — The Parr Matter

In December 2004, Sherri Lee Parr hired respondent to handle the succession of her father. Ms. Parr paid respondent $1,725 to handle the matter, following which respondent told her that “these things take awhile.” Thereafter, Ms. Parr and her sister attempted to contact respondent by telephone to no avail, and respondent never returned their calls. Ms. Parr went to respondent’s office numerous times and was told by the secretary that he was either in court or unavailable. In December 2008, after reading in the local newspaper that respondent had been disbarred, Ms. Parr filed a disciplinary complaint against respondent. Respondent failed to cooperate with the ODC in its investigation of the complaint.

Count II — The LeCompte Matter

In June 2005, Donna Ledet LeCompte hired respondent to represent her in a divorce proceeding. Respondent quoted Ms. LeCompte a fee of $1,500. Ms. Le-Compte paid respondent $750 towards the fee and court costs of $225. Thereafter, Ms. LeCompte met with respondent a couple of times. In July 2005, respondent filed the petition for divorce. A few months later, Ms. LeCompte received a letter from attorney William Yates, indicating he had possession of her legal file because respondent no longer practiced law and had closed his office. Thereafter, Ms. LeCompte retrieved her file from Mr. Yates and hired another attorney to complete the divorce and community property settlement. In January 2009, Ms. Le-Compte | ¿filed a disciplinary complaint against respondent, alleging he did not earn the entire $750 fee. Respondent failed to cooperate with the ODC in its investigation of Ms. LeCompte’s complaint.

DISCIPLINARY PROCEEDINGS

In December 2008 and December 2009, the ODC filed formal charges against respondent as set forth above, alleging he violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a) (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation). Respondent failed to answer either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). The matters were then consolidated by order of the hearing committee chair. No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined the factual allegations of the formal charges were proven by clear and convincing evidence. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee also found that by his conduct, respondent violated Rule |fi8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority) of the Rules of Professional Conduct, which was not charged in the formal charges.

The committee determined respondent violated duties owed to his clients, and that his actions were not merely negligent, but were deliberate, calculated attempts to hide the fact of his suspension and disbarment. Respondent accepted fees for work he never intended to perform. His failure to cooperate fully with the ODC “demonstrates his disregard for his duties as an attorney at law.” Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction in this matter is suspension.

In aggravation, the committee found pri- or disciplinary offenses. Additionally, the committee noted respondent’s complete indifference to the needs of his clients, his overt concealment of his status as a suspended/disbarred attorney, and his acceptance of fees when he had no intention to perform any work. The committee also noted “these complainants have been seriously injured due to their cases being delayed and emotionally for the anguish of not being able to find out the status of the work they paid respondent to perform.” The committee determined there are no mitigating factors present.

Under these circumstances, the committee determined that the appropriate sanction would be disbarment. In light of the fact that respondent is presently disbarred, the committee recommended the instant misconduct be considered in the event he ever applies for readmission to the bar. The committee also recommended that respondent be assessed with all costs of these proceedings and be ordered to make restitution to his clients.

| ¡¡Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplina7¶ Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee’s factual findings are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of the allegations. The board further determined that the committee properly found respondent violated the Rules of Professional Conduct as alleged in the formal charges. Additionally, the board agreed with the committee that respondent violated Rule 8.1(b) when he failed to appear pursuant to an investigatory subpoena in the Benoit matter.

Respondent knowingly, if not intentionally, violated duties owed to his clients and the profession. In each of the client matters, respondent collected fees to complete legal work, but failed to do so. Despite his professional obligations, he failed to refund any of the unearned fees to those clients, causing significant harm. Respondent failed to cooperate with the ODC in its investigation of these matters although he was personally served with copies of the complaints. The board determined that disbarment is the baseline sanction based on the ABA’s Standards for Imposing Lawyer Sanctions.

As aggravating factors, the board found prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, indifference to making restitution, and substantial experience in the practice of law (admitted 1977). The board determined that the record does not support any mitigating factors.

| ./Turning to the issue of an appropriate sanction, the board determined that respondent’s substantive misconduct occurred during the same time period as the misconduct subject of Barrios II. Accordingly, the board determined that the approach of Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), is applicable to the substantive misconduct in this case. However, the board pointed out that respondent’s failures to cooperate occurred outside of the time period subject to the Chatelain analysis. Therefore, for respondent’s misconduct in failing to cooperate with the ODC in its investigations, the board recommended that the time period in which respondent can apply for readmission be extended by two years. Finally, the board recommended that respondent be assessed with all costs of these proceedings and be ordered to make restitution to his clients.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations 1 ^contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts in this matter indicate that respondent neglected legal matters, failed to communicate with clients, failed to refund unearned fees, and failed to cooperate with the ODC in its investigation. Accordingly, we agree he violated the Rules of Professional Conduct as alleged in the formal charges.

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

Respondent knowingly, if not intentionally, violated duties owed to his clients and the profession. In each of the client matters at issue, respondent collected fees but failed to complete the legal work he was retained to handle. Respondent thereafter failed to refund any of the unearned fees to his clients, causing significant harm. Respondent also failed to cooperate with the ODC in its investigation of the 19complaints filed against him by his clients. The baseline sanction for respondent’s misconduct is disbarment. We agree with the board’s assessment of the aggravating factors, and agree that no mitigating factors are supported by the record.

Turning to the issue of an appropriate sanction, we note that the substantive misconduct in Barrios II occurred between August 2002 and May 2006, the same time period in which the substantive misconduct in the present matter occurred. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we determined that when the underlying conduct occurs within the same period as the misconduct forming the basis for a previous sanction, the discipline imposed should be determined as if both proceedings were before the court simultaneously. Under the circumstances, we agree with the board that the substantive misconduct in the instant matter should be considered along with the misconduct in Barrios II if and when respondent applies for readmission from his disbarment.

However, the failure to cooperate charges require a different analysis, as they occurred outside of the Barrios II time frame. Specifically, in the Benoit matter, respondent’s failure to cooperate occurred between October 2006 and March 2007, after the substantive misconduct in Barrios II but before this court rendered its opinion in that matter imposing disbarment. The failures to cooperate in both the Parr and LeCompte matters occurred after the court’s opinion in Barrios II.

Under these circumstances, we find that additional discipline is warranted for three instances of respondent’s failure to cooperate with the ODC. See In re: Boudreau, 03-1890 (La.12/3/03), 860 So.2d 1119 (applying Chatelain analysis to substantive misconduct which occurred in the same general time frame as the lawyer’s previous misconduct, but imposing additional sanctions for the lawyer’s failure to cooperate which occurred after the prior misconduct).

| t¡¡Standard 7.2 of the ABA’s Standards for Imposing Lawyer Sanctions states that suspension is generally appropriate when a lawyer “knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.” Because respondent is currently disbarred, he technically cannot be suspended, but our jurisprudence permits additional sanctions in the form of an extension of the five-year minimum period which must elapse before a disbarred lawyer may seek readmission. In light of respondent’s extensive and egregious disciplinary history, we conclude the board’s recommendation of a two-year extension of this time period is appropriate. Accordingly, for that misconduct which occurred outside of the Barrios II time frame, we will extend the minimum period for readmission set forth in Supreme Court Rule XIX, § 24 by an additional two years, to commence from the finality of this judgment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that respondent, Robert L. Barrios, be and he hereby is adjudged guilty of additional violations ^warranting discipline, which shall be considered in the event he seeks readmission after becoming eligible to do so. It is further ordered that for the misconduct which occurred outside of the time frame of In re: Barrios, 08-1679 (La.11/10/08), 993 So.2d 1200, the minimum period for seeking readmission from that disbarment shall be extended for a period of two years commencing from the finality of this judgment. Respondent shall render an- accounting to his clients subject of the formal charges and make restitution of any unearned fees. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . In Chatelain, this court observed that when a second attorney disciplinary proceeding involves conduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.

      . In In re: White, 00-2732 (La.4/25/01), 791 So.2d 602, this court stated:
      Clearly, disbarment is the most severe sanction a court may impose in a disciplinary proceeding. In order to ensure that disbarment is in reality a more severe sanction than suspension, in no event should a lawyer be considered for readmission until at least five years after the effective date of disbarment. Commentary, American Bar Association Standards for Imposing Lawyer Sanctions, § 2.2 (1991). Therefore, we believe it is more consistent with the purposes of Supreme Court Rule XIX, § 24 to hold that the five-year minimum period for readmission for a subsequent disbarment should run consecutively to the five-year period stemming from the original disbarment, in the absence of unusual or extenuating circumstances. Of course, we emphasize that completing the minimum period for readmission merely gives an attorney the right to apply for readmission and in no way suggests that the attorney will be readmitted. Such a determination remains in the sound discretion of this court.


author: FOR THE COURT.

text:
    In re Kirstin J. RAMSAY.
    No. 2009-OB-0004.
    Supreme Court of Louisiana.
    Feb. 8, 2011.
   ORDER

FOR THE COURT.

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Ramsay, 09-0004 (La.1/14/09), 998 So.2d 691, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

NEW ORLEANS, LOUISIANA, this 8th day of February, 2011.


text:
    In re Jaclyn C. HILL.
    No. 2011-B-0235.
    Supreme Court of Louisiana.
    Feb. 9, 2011.
   ORDER

FOR THE COURT.

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Jaclyn C. Hill, Louisiana Bar Roll number 30555, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

NEW ORLEANS, LOUISIANA, this 9th day of February, 2011.