text:
    Marcela LALIME, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-858.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    V.J. (Jimmy) Benincasa, Vero Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Marcela Lalime (Lalime) appeals an order summarily denying her second amended motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse.

On January 28, 1993, Lalime entered into a negotiated plea of nolo contendere to four counts of obtaining a prescription by fraud, and the remaining ten counts were nolle prossed. The trial court withheld adjudication and placed her on probation for two years. There was no direct appeal and no prior postconviction motions filed.

On October 6, 2008, Lalime filed a sworn motion for postconviction relief, pursuant to rule 3.850, Florida Rule of Criminal Procedure, in which she sought to withdraw her plea. Pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), the trial court dismissed her amended motion and allowed her to file a second amended one, the denial of which prompted this appeal.

In her second amended motion, Lalime alleged that the trial court failed to determine that her plea was knowingly and voluntarily entered, because the court failed to advise her, pursuant to rule 3.172(c)(8), that her plea could subject her to deportation. The motion further alleged that her defense counsel had affirmatively misadvised her that the plea would not subject her to deportation, and the trial court failed to cure the affirmative misadvice. She attached exhibit 1, her former defense counsel’s affidavit, in which he explained that in January 1993, it was his legal opinion that a withhold of adjudication was not considered a conviction for immigration purposes, and it would not affect Lalime’s immigration status.

Although a warning as to deportation consequences appeared in paragraph nineteen of the plea petition, which Lalime signed, she alleged that counsel negated the warning when he misadvised her concerning immigration consequences. No event in her life experience gave her reason to inquire beyond the advice given until she consulted immigration counsel on April 28, 2008, in connection with applying to become a citizen. On September 10, 2008, the Department of Homeland Security notified her that the challenged conviction might cause her application for citizenship to be denied, and on December 29, 2008, it informed her she was being placed in removal proceedings.

She alleged that she could not have ascertained, with the exercise of due diligence, that her conviction subjected her to removal, that counsel had misadvised her, or that the trial court should have informed her of the deportation consequences, prior to April 2008. Only this single matter made her deportable; she had never been deportable for any other reason. For timeliness of the motion, she relied on State v. Green, 944 So.2d 208 (Fla.2006) (giving those whose cases were already final two years from the date of the opinion, or until October 26, 2008, in which to raise their claims).

Finally, she stated that a transcript of the plea colloquy, which would confirm her allegations, was not available. Despite that fact, she intended to prove her claims with the testimony of her former counsel and the trial judge who presided over her plea hearing. Former counsel’s affidavit indicated he specifically remembered that the judge did not advise Lalime that the plea could subject her to deportation.

The state took the position that the two-year Green window for cases that were already final when it issued did not apply to cases of misadvice of counsel, maintaining that the motion should have been filed within two years of the conviction and sentence becoming final. Finally, the state argued that the motion was insufficient in that Lalime failed to allege why the misadvice or the trial court’s failure to advise could not have been discovered within the two-year time limit.

The trial court summarily denied the motion, adopting the state’s response that the motion was time-barred. The trial court also found that the motion was refuted by the record in part (in that she indicated in her plea petition that she entered the plea because she was guilty), and legally insufficient in part (in that the state had not agreed to withholding adjudication).

We have previously applied the two-year window period announced in Green to claims of affirmative misadvice of counsel; not only to a trial court’s failure to advise. Francis v. State, 31 So.3d 285 (Fla. 4th DCA 2010).

In response to this court’s order to show cause, the state now suggests that this court should find Lalime’s claim is barred by laches. See McCray v. State, 699 So.2d 1366 (Fla.1997) (concluding as a matter of law that five years of delay in filing petition alleging ineffective assistance of appellate counsel is presumed unreasonable). We have not applied the McCray presumption to motions filed under rule 3.850 and Green expressly provides defendants with two years from the date of the opinion to file their motions.

Accordingly, we reverse the order summarily denying the motion, and remand the case to the trial court for attachment of portions of the record conclusively refuting the claim or an evidentiary hearing.

Reversed and remanded.

TAYLOR, MAY and DAMOORGIAN, JJ., concur.

      . The state had not agreed to the withhold, but agreed only to stand silent with respect to withholding adjudication.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jared S. FOX, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2940.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    Jared S. Fox, Florida City, pro se.
    No appearance required for appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

We have already affirmed the trial court’s denial of appellant’s fifth Rule 3.850 motion for postconviction relief which was untimely and successive. Appellant has persistently raised meritless challenges to the 2003 revocation of his probation. Appellant’s abuse of postconviction process interferes with the administration of justice and damages the remedy for others. See McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010).

We issued an order requiring appellant to show cause why this court should not impose the sanction of no longer accepting his pro se filings as to this case. See State v. Spencer, 751 So.2d 47 (Fla.1999). Appellant has responded but fails to excuse his abuse of process. He contends that, when this court granted him a belated appeal of his resentencing in 2007, see Fox v. State, 997 So.2d 420 (Fla. 4th DCA 2008) (affirming the belated appeal granted in case number 4D07-S474), this opened up a new two-year window to bring postconviction challenges. He argues, therefore, that his latest postconviction motion is not untimely, nor successive. We reject this argument.

Appellant filed two distinct Rule 3.850 motions challenging the 2003 revocation of his probation which were fully litigated, denied, and affirmed before the 2007 belated appeal. See Fox v. State, 949 So.2d 212 (Fla. 4th DCA 2007); Fox v. State, 956 So.2d 465 (Fla. 4th DCA 2007). The belated appeal granted in 2007 concerned appellant’s 2006 resentencing only. See Fox v. State, 921 So.2d 701 (Fla. 4th DCA 2006) (reversing and remanding for resentencing because sentencing was a critical stage requiring defendant’s presence). Appellant thereafter filed two more postconviction motions again challenging the 2003 revocation of his probation. These successive motions were denied and affirmed on appeal. See Fox v. State, 977 So.2d 589 (Fla. 4th DCA 2008); Fox v. State, 4 So.3d 1239 (Fla. 4th DCA 2009). The trial court properly denied this fifth postconviction motion as untimely and successive. In this motion, appellant again raised variants of a meritless claim that he has raised in each of his last two motions. We have repeatedly reviewed the claim which we find wholly without merit.

All things must come to an end, and so it is with postconviction challenges. We therefore direct the clerk of this court to no longer accept filings from appellant directed at his conviction and sentence in Palm Beach circuit court case number 99-13662 unless they are signed by a member in good standing of The Florida Bar.

WARNER, STEVENSON and CIKLIN, JJ., concur.

      . The claims are focused on discrepancies regarding the serial number of the $20 bill that the undercover officer used to buy drugs from appellant. The officer testified at the 2003 VOP hearing that hé bought the drugs from appellant with the bill, but appellant did not have the $20 bill in his possession when he was arrested. The discrepancies regarding the serial number of the bill provide no basis for postconviction relief under the circumstances of this case.


author: KELLY, Judge.

text:
    T.V.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3145.
    District Court of Appeal of Florida, Second District.
    May 20, 2011.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

T.V.W. appeals the trial court’s order withholding adjudication and placing him on probation for battery. The State correctly concedes that the trial court erred in finding T.V.W. guilty of battery as a permissive lesser-included offense to the charge of attempted robbery where the elements of the crime of battery were not charged in the petition for delinquency. N.H.M. v. State, 974 So.2d 484, 486 (Fla. 2d DCA 2008). Accordingly, we reverse the order withholding adjudication that finds T.V.W. guilty of battery and remand for further proceedings consistent with this opinion.

Reversed and remanded.

DAVIS and LaROSE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    D’Angelo LaVelle DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4845.
    District Court of Appeal of Florida, Second District.
    May 25, 2011.
   ALTENBERND, Judge.

D’Angelo LaVelle Dixon appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse with instructions that the trial court give priority consideration to this proceeding.

In 2005, a jury convicted Mr. Dixon of aggravated battery with a deadly weapon, robbery with a firearm, and attempted first-degree murder for events that occurred in December 2000. He received sentences, the longest of which is forty years for the attempted murder. He appealed his judgments and sentences. This court affirmed on October 20, 2006, and issued mandate on November 13, 2006. See Dixon v. State, 940 So.2d 431 (Fla. 2d DCA 2006) (table decision).

Mr. Dixon is obviously an impatient man, and this has worked to his detriment. He filed his first postconviction motion in May 2005. Given that he had an appeal pending, this motion was premature. See Daniels v. State, 712 So.2d 765, 765 (Fla.1998); Gore v. State, 56 So.3d 922, 923 (Fla. 2d DCA 2011). In the motion he raised only one ground: a juror allegedly did not disclose or was not asked whether she knew the victim. He filed the motion so quickly that he did not even know the name of the lawyer that would represent him on the direct appeal at the time he filed it.

The trial court resolved the motion in an odd fashion. First, Judge Frederick Hardt dismissed the motion on grounds that the court did not have jurisdiction during the appeal. He entered the order on September 15, 2005. Mr. Dixon properly did not appeal the dismissal. Then on October 19, 2005, Judge Hardt inexplicably entered an order staying the dismissed proceeding. After mandate issued in the appeal, Judge Bruce Kyle entered an order on March 26, 2007, denying the motion on the ground that the jury misconduct issue could or should have been raised on direct appeal.

Although it is doubtful that Judge Kyle had jurisdiction to deny the motion that Judge Hardt had previously dismissed, Mr. Dixon appealed Judge Kyle’s order. See Dixon v. State, 959 So.2d 726 (Fla. 2d DCA 2007) (table decision). He then apparently accepted the trial court’s reasoning, voluntarily dismissed the appeal, and filed a proceeding in this court arguing that his appellate lawyer had been ineffective on direct appeal because that lawyer had raised only an issue about limitations on the cross-examination of a state witness and had not raised the issue identified in the original posteonviction motion. This court treated the filing as a petition alleging ineffective assistance of appellate counsel (PAIAAC) and denied it in early November 2007. See Dixon v. State, 968 So.2d 565 (Fla. 2d DCA 2007) (table decision).

Mr. Dixon filed the motion for postcon-viction relief that is the subject of this appeal on November 6, 2008. In the motion, Mr. Dixon somewhat inartfully argues a Brady violation and six other grounds. These grounds may not all be facially sufficient, but it is arguable that Mr. Dixon could amend them to allege proper grounds for postconviction relief. After he filed the motion, the trial court apparently ordered a response from the State a few days later. We say “apparently” because that order is not in our record, but the State recites its existence in the response it filed in late December 2008. The response, which is two pages in length and contains no attachments, argues that the motion is untimely or successive because of the May 2005 motion that Mr. Dixon filed at the inception of his direct appeal.

In February 2009, Mr. Dixon moved to strike the response for reasons that are not important to this appeal. In June 2009, he filed a “motion to rule.” Such a motion is always a risky tactic, rather like waking a sleeping bear, because the trial court, pressured into a quick ruling, is likely to rule against the prisoner. Mr. Dixon appears to have avoided this risk because the trial court did nothing for another fourteen months. In August 2010, Judge Christine Greider issued an order denying the November 2008 postconviction motion.

The order attaches only the two-page information filed against Mr. Dixon. Not only does this document fail to refute Mr. Dixon’s claims, but it does not support many of the factual and procedural representations in the order. The order recites that Mr. Dixon filed the motion on November 6, 2008, and then states that this court issued its mandate on November 15, 2006. It incorrectly concludes that the defendant had “until November 16, 2006,” i.e., one day, to file a postconviction motion and that the November 6, 2008, motion, which Mr. Dixon obviously filed within two years of November 13, 2006, was untimely. See Fla. R. Crim. P. 3.850(b) (providing that the time limit for filing a rule 3.850 motion in a noncapital case is two years after the judgment and sentence becomes final); see also Beaty v. State, 701 So.2d 856, 857 (Fla.1997) (holding that the two-year period for filing a motion for postconviction relief begins to run upon issuance of mandate).

The order also rules that the November 2008 motion is successive to the May 2005 motion. Assuming Judge Hardt actually dismissed the original motion as premature, the November 2008 motion clearly is not successive. However, even if Judge Kyle properly denied the original motion, this motion raises new grounds, and Mr. Dixon’s filing the motion was not an abuse of the procedures governed by rule 3.850. See Fla. R. Crim. P. 3.850(f).

In the twenty-one months that the November 2008 motion was pending below, we are inclined to believe that the trial court could have reached a better reasoned decision in accordance with the rules of procedure and due process. We have no way to judge whether Mr. Dixon has a claim worthy of serious consideration, but we know it has not received such consideration.

Therefore, we reverse and remand for further proceedings. If Mr. Dixon’s motion is insufficient, the trial court should give him an opportunity to amend. In light of the past delays, the trial court should give his motion priority consideration.

Reversed and remanded.

KELLY and BLACK, JJ., Concur.

      . With virtually no record in this appellate proceeding, this court has obtained all of its own earlier appellate proceedings in this matter and has chosen to take notice of its own records. The information in this paragraph is derived from our record in case number 2D07-2132. See Dixon v. State, 959 So.2d 726 (Fla. 2d DCA 2007) (table decision).

      . In case number 2D08-1755, Mr. Dixon filed another proceeding in this court that the court treated as a PAIAAC. Mr. Dixon claimed that he had a speedy trial issue that should have been raised on appeal. We also denied this petition. See Dixon v. State, 983 So.2d 1157 (Fla. 2d DCA 2008) (table decision).

        . Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that government suppression of material evidence favorable to a criminal defendant violates due process).

      . As indicated earlier, this court issued mandate on November 13. Perhaps the circuit court clerk filed the mandate on November 15.

      . By virtue of a petition for writ of mandamus that Mr. Dixon recently filed in case number 2D11-1067, we are aware that the denial of the motion on appeal has caused Mr. Dixon to file a flurry of additional motions in the trial court. The ruling in this decision may affect the recent rulings in those proceedings by another circuit judge who was relying on the order that we reverse today.


author: LaROSE, Judge.

text:
    William E. LEWIS, Jr., Appellant, v. THUNDERBIRD MANOR, INC., a Florida corporation, Appellee.
    No. 2D09-4586.
    District Court of Appeal of Florida, Second District.
    May 25, 2011.
    Brenda Di Ioia of Brenda Di Ioia, P.A. Davie, for Appellant.
    E. Mark Breed, III, of Breed & Nunnal-lee, P.A., Sebring, for Appellee.
   LaROSE, Judge.

William E. Lewis, Jr., appeals a final judgment of foreclosure entered after a clerk’s default. Thunderbird Manor, Inc., sued him for unpaid assessments. We affirm the final judgment, in part, but write to address certain costs that Mr. Lewis challenges.

The trial court erred in awarding nontaxable costs of $16.41 for postage and $52 for photocopies. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 616-17 (Fla.2005), does not list postage as a taxable cost. Therefore, we reverse the taxation of costs for postage.

Generally, copies, like postage, are part of the attorney’s nonrecoverable office expenses. Griffith v. Griffith, 941 So.2d 1285, 1286 (Fla. 4th DCA 2006) (citing Bolton v. Bolton, 412 So.2d 72, 73 (Fla. 2d DCA 1982); Mitchell v. Osceola Farms Co., 574 So.2d 1162 (Fla. 4th DCA 1991)); Robbins v. McGrath, 955 So.2d 638, 635 (Fla. 1st DCA 2007). The guidelines allow for taxation of copy costs for “documents filed with the court, which are reasonably necessary to assist the court in reaching a conclusion” and “costs of copies obtained in discovery.” Guidelines, 915 So.2d at 616. The September 10, 2008, cost of $4.75 for copies of pleadings sent with a letter to Mr. Lewis are not taxable. We cannot determine from the record that the remaining copy costs are taxable. Counsel’s affidavit provides no explanation for December 16, 2008, copy costs of $3.50 and February 27, 2009, copy costs of $9.75. The January 30, 2009, listing of $2.75 and the May 29, 2009, listing of $31.25 also are unannotated. We note that the affidavit identifies attorney’s fees for those dates, but the affidavit suggests no nexus to the copy costs.

Thunderbird had the burden to show that all requested costs were taxable. See Guidelines, 915 So.2d at 616; Nasser v. Nasser, 975 So.2d 581, 532 (Fla. 4th DCA 2008). We reverse and remand for the trial court to deduct the amount taxed for postage and the amounts not taxable under the guidelines for copies and enter an amended judgment. See The Landmark Winter Park, LLC v. Colman, 24 So.3d 787, 788-89 (Fla. 5th DCA 2009). In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

WHATLEY, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


author: DAMOORGIAN, J.

text:
    D.F.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1763.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

D.F.J., a child, appeals his adjudication of delinquency for aggravated battery and robbery with a weapon. We reverse for insufficiency of evidence.

The evidence adduced at the adjudicatory hearing established that the victim was attacked from behind and suffered a deep laceration to the top portion of the left side of his head. After being struck, he was robbed of a gold chain, cash, and a cellular telephone. The crime occurred in the backyard of the victim’s home while he and D.F.J., along with the co-defendant and an unidentified male, drank beer. At some point, the victim was grabbed by the neck and struck from behind. He passed out and awoke with a stab wound to the head. He did not see who had grabbed or struck him, and could not identify which of the three other individuals present at the time of the attack may have perpetrated the crime.

D.F.J. and the co-defendant were witnessed jumping over a fence near the scene and the victim’s wallet was found by the fence. Both denied any knowledge of the crime, although each admitted to being at the scene with the victim and the urn identified male.

At the close of the State’s case, the defense moved for judgment of dismissal, arguing that the case was purely circumstantial, and there were no eyewitnesses that saw D.F.J. involved in the robbery or the aggravated battery. The defense argued that there was a reasonable hypothesis of innocence since there was no indication of who actually attacked and robbed the victim. Because the evidence failed to exclude a reasonable possibility that someone else could have committed the crime, the defense submitted that the court was required to grant the motion for judgment of dismissal.

The State countered that the evidence showed that the victim was hit in the back of the head, grabbed around the neck, and stabbed in the head. At some point during or after the attack, the victim’s necklace was ripped off, and his phone and wallet were taken. The State also noted that the victim had testified that D.F.J. and the co-defendant were speaking in a dialect he did not understand, giving the appearance that something was being planned. Additionally, D.F.J. and the co-defendant ran from the scene at the same time, and the victim’s wallet was found near the fence D.F.J. jumped over. Finally, both D.F.J. and the co-defendant stated that the victim, during an altercation between the co-defendant and the unknown male, retrieved several knives from inside his home and returned to the scene. The State argued that these statements indicated knowledge of the presence of the knife at the scene.

A motion for judgment of dismissal should be granted in a circumstantial evidence case if the State fails to present evidence from which the judge can exclude every reasonable hypothesis except that of guilt. J.R. v. State, 671 So.2d 278, 278 (Fla. 2d DCA 1996) (“Regardless of how strongly the circumstantial evidence suggests guilt, a court may not sustain a conviction unless the evidence is inconsistent with any hypothesis of innocence.”).

D.F.J. contends that the State’s only evidence against him is that he was present at the scene of the commission of the crimes and that he fled from the scene. The State offers no evidence that D.F.J. perpetrated or assisted in the perpetration of the crimes or that he had the intent to join in the crimes. Most importantly, D.F.J. argues that the State failed to present evidence from which the judge could exclude the reasonable hypothesis that D.F.J. was merely a witness to the crime. See J.W. v. State, 467 So.2d 796, 797 (Fla. 3d DCA 1985). We agree.

The State’s evidence was circumstantial. No matter how strongly the circumstantial evidence points toward guilt, the evidence must, nonetheless, rebut any hypothesis of innocence, including that D.F.J. was present at the scene, and was merely a witness to the crime. Id.

Because the only witness to the crime was the victim and he could not definitively state who attacked him, the State was unable to overcome D.F.J.’s reasonable hypothesis of innocence. See T.L.M. v. State, 755 So.2d 749, 751 (Fla. 4th DCA 2000) (citing M.P.W. v. State, 702 So.2d 591, 592 (Fla. 2d DCA 1997)). Accordingly, D.F.J.’s motion for judgment of dismissal in this circumstantial evidence case should have been granted. See, e.g., State v. Law, 559 So.2d 187 (Fla.1989); Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998).

Reversed and Remanded for dismissal of the charges against D.F.J.

MAY and LEVINE, JJ., concur.

      . Under Rule 8.110(k), Florida Rules of Juvenile Procedure, a motion for judgment of dismissal is the equivalent of a motion for judgment of acquittal in the adult criminal context. See W.E.P., Jr. v. State, 790 So.2d 1166, 1169 n. 3 (Fla. 4th DCA 2001). The standard for ruling on a motion for judgment of dismissal is the same as the standard for ruling on a motion for judgment of acquittal. Id. at 1169-70.

      . The officers investigating the crime recovered only one knife from the scene.


text:
    STATE of Florida, Appellant, v. Jamie EUGUI, Appellee.
    No. 4D10-1225.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the dismissal of the information charging appellee with one count of delivery of a counterfeit controlled substance. See § 831.31, Fla. Stat. (2009). The trial court based the dismissal on a motion appellee filed under Florida Rule of Criminal Procedure 3.190(c)(4). The state filed a traverse which set forth specific facts which, in the light most favorable to the state, establish appellant’s knowing participation in the drug transaction. For example, a coconspirator told the state’s confidential informant that the crack was in transit, and that the informant “needed to wait for [appellee], who was in the bar, to go get the crack.” Appellee told the informant to wait for him in a bar, went to a codefendant’s house, and returned with another codefendant who made the hand-to-hand transaction. To survive a motion to dismiss, “the state need not produce evidence sufficient to sustain a conviction. So long as the state shows the barest prima facie case, it should not be prevented from prosecuting.” State v. Bailey, 508 So.2d 1268, 1269 (Fla. 4th DCA 1987) (internal citations omitted).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.


author: MAY, J.

text:
    Steven Strat KARRAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2600.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for sale/delivery of cocaine, possession of cocaine, and trafficking in cocaine (28 grams or more). He argues, among other things, that the trial ■ court erred in punishing him for exercising-his right to jury trial. We find no merit in the other issues raised, but agree that the sentencing pronouncement indicates that the trial court enhanced the sentence requested by the State for impermissible reasons and reverse.

At sentencing, the following exchange occurred:

[STATE]: Judge, we’re asking for four years DOG with a three-year minimum mandatory. We’re asking for the four years because this Defendant did take the stand, did give rather [an] incredible story given that he was — his conversation with the [confidential informant] was recorded.
This Defendant does have- a history. And based upon the conversations that were on there, the three-year minimum mandatory, this Defendant also chose to go to trial, didn’t accept responsibility for his actions.
So, therefore, we feel the three-year minimum mandatory isn’t appropriate, that he does deserve more for his taking the stand and lying and not accepting responsibility.
THE COURT: It is said of course that when people enter a plea and acknowledge and accept responsibility for their conduct and express a willingness to acknowledge they did something wrong and accept responsibility for it that they get the benefit of having entered a plea. On the converse side, no one gets punished for going to trial. They have a constitutional right to go to trial. However, that’s not completely unfettered.
When someone goes to trial and takes the stand under oath [ ] that can sometimes turn a garden variety case into an aggravated case. And I recall the entrapment defense and the testimony in this case to be aggravating.
So on count on[e], sale or delivery of cocaine, I will adjudicate you guilty, sentence you to sixty months in the Department of Corrections with credit for time served in the amount of four hundred and fourteen days. I’ll order court costs of $398, costs of prosecution $100, costs of investigation $50, $125 drug trust fund.

(emphasis added).

The defendant did not object to the trial court’s comments, but did file a motion to correct a sentencing error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court determined it did not have the authority to consider the motion because it focused on the sentencing rather than the sentence.

We begin by acknowledging that the trial court started down the right path by correctly reiterating the cardinal rule that a defendant cannot be punished for exercising his constitutional right to go to trial. See Aliyev v. State, 835 So.2d 1232, 1234 (Fla. 4th DCA 2003). But, then the trial court diverted from that path and crossed over the line of fundamental error when it sentenced the defendant to a greater amount of time than requested by the State as he “recalled] the entrapment defense and the testimony in this case to be aggravating.”

In essence, those words reflect that the trial court based its sentencing decision upon its disbelief of the defendant’s testimony at trial. The State requested a four-year sentence because the defendant “deserved more for ... taking the stand and lying and not accepting responsibility.” The trial court erred when it obliged the State’s request, commented that the trial testimony aggravated the case, and sentenced the defendant to an increased amount of five years. See Lyons v. State, 730 So.2d 833, 834-35 (Fla. 4th DCA 1999).

Reversed and remanded for resentenc-ing before a different judge.

DAMOORGIAN and LEVINE, JJ„ concur.


text:
    Genna GARDNER, Appellant, v. MOVING COST, INC., a Florida corporation, Nationwide Relocation Services, Inc., a Florida corporation, Nationwide Auto Transporters, Inc., a Florida corporation, and We Haul International, Inc., a Florida corporation, Appellees.
    No. 4D09-4648.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Genna Gardner, Plantation, pro se.
    Neil Flaxman of Neil Flaxman, Professional Association, Miami, for appellees.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellees’ motion for rehearing, withdraw our opinion of April 6, 2011, and substitute the following.

The circuit court dismissed appellant’s complaint without prejudice after she failed to file an amended complaint. On July 1, 2009, appellant’s attorney withdrew and the court gave her 20 days to retain new counsel and file an amended complaint. On August 17, 2009, appellees moved to dismiss with prejudice. The court entered a final order of dismissal with prejudice on September 11, 2009. Six days later, appellant filed a pro se motion to set aside the final order of dismissal; she said that she had not received notice of the hearing on the motion and had not been able to acquire new counsel. The court denied the motion.

“Dismissal of the [amended] complaint was too severe a sanction in this matter because the record does not show “willful or intentional disregard of the trial court’s order.” Garland v. Dixie Ins. Co., 495 So.2d 785, 785 (Fla. 4th DCA 1986). The trial court’s order “did not make an explicit finding of willful noncompliance or deliberate disregard in its order.” Adlington v. Fla. Parole Comm’n, 824 So.2d 256, 257 (Fla. 4th DCA 2002); see also State of Fla. Dep’t of Envt’l Reg. v. Chemairspray, Inc., 520 So.2d 96 (Fla. 4th DCA 1988).

The reversal in this case is without prejudice to the entry of a lesser sanction against plaintiff. See Garland, 495 So.2d at 785.

Reversed.

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


text:
    STATE of Louisiana v. James Deron WILLIAMS.
    No. 2010-KK-1514.
    Supreme Court of Louisiana.
    March 15, 2011.
    James D. Caldwell, Attorney General, Don M. Burkett, District Attorney, Charles David Soileau, Assistant District Attorney, for Applicant.
    The Law Office of Carol D. Powell-Lexing, Carol D. Powell-Lexing, Monroe, for Respondent.
   PER CURIAM.

LThe state has charged defendant by bill of information with false swearing for purposes of violating public health or safety in violation of La.R.S. 14:126.1. The charge stemmed from an incident at a Kwik Stop service station in Zwolle, Louisiana, in which a Wildlife and Fisheries agent, off duty and in plain clothes, broke up a fight at the gas pumps between defendant and another person. While defendant’s antagonist fled the scene, the agent allegedly shoved a gun in defendant’s face and chest, and held him until the Zwolle police arrived. Defendant initially made a telephone complaint about the incident to the supervisor of the Wildlife and Fisheries agents in Sabine Parish and then sent a formal written complaint by certified mail on a form provided by the Zwolle Police Department. The statement did not purport to constitute a sworn affidavit, although by signing the printed form, defendant “affirm[ed] that all facts and statements contained herein are true and correct.” Investigation of the complaint, which encompassed interviews with the wildlife agent and other witnesses on the |2scene, led to defendant’s arrest for false swearing and to his formal charging by the Sabine Parish District Attorney’s Office with a violation of La.R.S. 14:126.1.

Defendant filed a motion to quash the bill of information on several grounds, including that the statute “is misleading and vague because it describes the crime as false swearing but does not appear to require that the prohibited false statement be made under oath.” The trial court denied the motion without written reasons but the Third Circuit set aside that ruling and ordered the prosecution quashed. State v. Williams, 09-993 (La.App. 3rd Cir.5/26/10), 38 So.3d 1180 (Ezell, J., dissenting). We granted the state’s application to review that decision and, for the following reasons, reverse and remand this case to the court of appeal for further consideration.

The crime of false swearing for purpose of violating public health or safety in violation of La.R.S. 14:126.1 appears in “Sub-part C. Perjury” of Part VII, “Offenses Affecting Organized Government,” in the Louisiana Criminal Code. The legislature added the statute to the Criminal Code in 1960 La. Acts 81 as part of a package of emergency acts signed into law by the governor on the same day during the social unrest accompanying the civil rights movement in the early 1960’s. See State v. Marshall, 424 So.2d 423, 427, n. 3 (La.App. 2nd Cir.1983) (“It is interesting to note that Section 126.1 was added to the Criminal Code ... as part of a package of legislation designed -to inhibit certain desegregation activities. Numerous additions and amendments to the Criminal Code were made, with severe penalties imposed for violation of the new and expanded crimes.”) (citing Donald H. Wollett, Race Relations, 21 La.L.Rev. 85 (1960-61) (“Apparently spurred by impending integration of the public schools in Orleans Parish and a rash of so-called ‘sit-in’ demonstrations, the 1960 regular session of the legislature passed 35 acts and proposed four constitutional amendments which bear, in one |?,way or another, on interracial relations.”) (footnote omitted)). Although titled “false swearing for purpose of violating public health,” the text of La. R.S. 14:126.1 refers only to the making of a “false statement, report or allegation” of a crime for the purpose of disrupting or endangering the public welfare or to deprive any person of the rights, privileges, and immunities conferred by law. While the crime of false swearing as defined in La.R.S. 14:125, which does require a false statement made under oath or an equivalent affirmation, is a one-year misdemean- or, the legislature made a violation of La. R.S. 14:126.1 a five-year felony offense, punishable with or without hard labor.

In his motion to quash, defendant contended that R.S. 14:126.1 is unconstitutionally vague to the extent that its title conflicts with its text, that it is used in a racially discriminatory manner, and that its heightened penalty provision ^constitutes cruel and unusual punishment. In his supporting memorandum, defendant argued that R.S. 14:126.1 is fatally vague, overly broad, and reaches protected speech. He also took the position that the vagueness, at least, could be cured by reading the statute in conjunction with La.R.S. 14:126 to find that La. R.S. 14:126.1 applies only to false statements made under oath, an interpretation that would effectively end the prosecution against him, as defendant did not “swear” to the handwritten statement he made on a form supplied by the Zwolle Police Department.

It has been previously noted that the title of La.R.S. 14:126.1, to the extent that it refers to “false swearing,” is “misleading ... because the statute does not require that the prohibited false statement be made under oath or affirmation.” Marshall, 424 So.2d at 427, n. 3. In the present case, the Third Circuit responded to that problem by reading the title of the statute into the body of the law because the court of appeal agreed with defendant that La.R.S. 14:126.1 “cannot be read in a vacuum and must be interpreted with the statutes that both precede and follow it,” in keeping with the general rule of statutory construction that, “all laws pertaining to the same subject matter must be interpreted in pari materia, or in reference to each other.” Williams, 09-993, p. 4, 38 So.3d at 1182 (citing La.Civ.Code art. 13; State v. Gutweiler, 06-2596 (La.4/8/08), 979 So.2d 469). The Third Circuit thus viewed La.R.S. 14:126.1 as part of a comprehensive body of statutory provisions “which deal with sworn speech,” id., 09-0993 at 3, 38 So.3d at 1182, all bound together by a common requirement that the offender make a statement under oath or an equivalent affirmation. See La.R.S. 14:123 (defining the crime of perjury); La.R.S. 14:124 (perjury as the making of a subsequent statement inconsistent with a statement made under oath or an equivalent affirmation); La.R.S. 14:125 (defining the crime of false swearing); La.R.S. 14:126 (false IsSwearing as the making of a subsequent statement inconsistent with a statement made under oath or an equivalent affirmation). In view of this comprehensive scheme dating back to 1942, the Third Circuit thought it clear that La.R.S. 14:126 and R.S. 14:126.1 “operate in tandem, and consequently, must be read in para mate-ria ” to require in the latter case that the offender make the alleged false statement under oath or an equivalent affirmation. Williams, 09-993 at 4, 38 So.3d at 1182. Thus, with respect to the present case, the state had “failed to charge a crime in the manner required by law because Defendant’s statement was not made under oath.” Id., 09-993 at 5, 38 So.3d at 1182 (footnote omitted); cf. State v. Legendre, 362 So.2d 570, 571 (La.1978) (although a motion to quash is ordinarily not a proper vehicle for raising defenses on the merits, “[i]t will not do to base an indictment for a serious offense ... upon an allegation of fact which cannot conceivably satisfy an essential element of the crime, and compel the accused to withstand the rigors of a jury trial with no expectation that a conviction can be supported by such an allegation.”).

We need not decide here whether by terms of the Third Circuit’s analysis, the state charged an offense under a valid statute because defendant, by signing the printed form supplied by the Zwolle Police Department, affirmed the truth of his statement. See La.C.Cr.P. art. 934(8) (“ ‘Oath’ includes affirmation.”). On a more fundamental level, the court of appeal erred in its analysis because La.R.S. 14:126.1 did not form part of the comprehensive set of criminal laws adopted by the legislature in the Criminal Code of 1942 (1942 La. Acts 43) and which set out the crimes of perjury and false swearing, including the parallel provisions that address the evidentiary import of the making of subsequent statements inconsistent with a statement made under oath or equivalent affirmation. The legislature added La. R.S. 14:126.1 to the Criminal Code 18 years later, as part of a singular package IfiOf emergency laws, and while the legislature “ ‘is presumed to have enacted a statute in light of the preceding statutes involving the same subject matter,’ ” Williams, 09-993 at 4, 38 So.3d at 1182 (quoting Gutweiler, 06-2596 at 22, 979 So.2d at 484), the legislature also is presumed to mean what it plainly says in the text of a statute. Cat’s Meow v. City of New Orleans, 98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198 (“When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. The starting point for interpretation of any statute is the language of the statute itself.”) (citations omitted); see Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“[Cjanons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.... When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.”) (citations and internal quotation marks omitted).

As the state argues here, La.R.S. 14:126.1 plainly does not include any requirement that the offender make the false statement under oath or equivalent affirmation. Although the title of La.R.S. 14:126.1 has created some confusion, the title of an act is not part of a statute and can be used to interpret legislative intent only when the language of the statute leaves doubt as to its meaning. State v. Modere, 352 So.2d 666, 668 (La.1977). Thus, although the court of appeal was 17correct as a general matter that “[w]here a part of an act is to be interpreted, it should be read in connection with the rest of the act and all other related laws on the same subject,” Theriot v. Midland Risk Ins. Co., 95-2895, p. 3 (La.5/20/97), 694 So.2d 184, 186 (on reh’g) (citations omitted), the Third Circuit focused too narrowly on immediate proximity of La.R.S. 14:126 and La.R.S. 14:126.1 and disregarded their timing and broader context of the latter’s origin, as well as the plain text of the 1960 legislation.

Louisiana criminal statutes must be “given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La.R.S. 14:3. As originally enacted, La.R.S. 14:126 operated in tandem with La.R.S. 14:125 because both statutes, part of the same act, explicitly require that the offender make the false statement under oath or an equivalent affirmation. That requirement was not carried forward some 18 years later by the legislature when it enacted La.R.S. 14:126.1; nor did it appear over 50 years later when the legislature enacted La.R.S. 14:126.3, 1995 La. Acts 788, defining the crime of health care facility application fraud as the “knowing and intentional offering of a false written or oral statement in any employment application or in an effort to obtain employment as a caretaker in any nursing home ... hospital ... or other residential facility required to be licensed or operated under the laws of this state or established by the laws of this state.” When the legislature means to impose the requirement of oath or an equivalent affirmation it does so expressly as part of its plenary discretion to define crimes and prescribe punishments. See, e.g., La.R.S. 14:125.1 (false swearing in paternity cases “is the intentional making of a written or oral statement, known to [8be false, under sanction of oath or equivalent statement, where such oath or affirmation is given for use in any judicial proceeding filed by or on behalf of the state of Louisiana to establish paternity.”); compare La.R.S. 14:125.2 (prohibiting any person “to willfully and knowingly make a written or oral false statement concerning (1) biological paternity; or (2) surrender of parental rights pursuant to Title XI of the Louisiana Children’s Code”). Thus, nearly 50 years after enacting La.R.S. 14:126.1, when the legislature specifically addressed the filing of a false complaint against a law enforcement officer, including a wildlife agent, for the purpose of initiating an administrative action against the officer, 2006 La. Acts 287, and made the offense a six-month misdemeanor, it expressly imposed the requirement that the offender make the. false complaint “by affidavit under oath.” La. R.S. 14:133.5(A).

Removing the title of La.R.S. 14:126.1 as an interpretative guide to the language of the text cures any vagueness that may arise from using the term “false swearing” to describe the making or communicating of “false statements.” We therefore subscribe to the views, of the Second Circuit in Marshall and the Fifth Circuit in State v. Bentley, 96-0795, p. 7 (La.App. 5th Cir.3/25/97), 692 So.2d 1207, 1210, that La. R.S. 14:126.1 does not require that the offender make the alleged false statement under oath or equivalent affirmation. To this extent, resolving the split in the circuits over this question, we reverse the decision below and remand the case to the court of appeal to address the defendant’s other assignments of error.

COURT OF APPEAL DECISION REVERSED; CASE REMANDED.

JOHNSON, J., dissents.

      . Both R.S. 14:126.1, and its complementary provision in La.R.S. 14:126.2, which proscribes the making of false statements to federal officials, including the F.B.I., about the deprivation or impending deprivation of rights, privileges or immunities by state or local authorities, went into effect immediately upon signature of the governor on June 22, 1960. Other emergency acts relating to the criminal law that went into effect at the same time ranged from 1960 La. Acts 73 (adding La.R.S. 14:79.1, entering into a common law marriage) and 1960 La. Acts 75 (enacting La.R.S. 14:79.2, conceiving and giving birth to two or more illegitimate children), to 1960 La. Acts 77 (amending and reenacting La.R.S. 14:59, relative to criminal mischief to include taking temporary possession of any part of a place of business after being ordered to leave).

      . The statute reads in full as follows:
      No person shall make a false statement, report or allegation concerning the commission of a crime for the purpose of violating, disrupting, interfering with or endangering the public health or safety, or to deprive any person or persons of any right, privilege or immunity secured by the United States Constitution and laws or by the Louisiana Constitution and laws, or cause such false statement or report to be made to any official or agency of the state or any parish, city or political subdivision thereof, or to any judicial, executive or legislative body or subdivision thereof within this state, knowing or having reason to believe the same or any material part thereof to be false and with the intent to cause an investigation of or any other action to be taken as a result thereof.
      Any person or persons convicted of violating the provisions of this Section shall be punished by imprisonment for not less than one year nor more than five years, with or without hard labor, or by a fine of not less than one hundred dollars nor more than one thousand dollars, or by both such fine and imprisonment.

      . In Marshall, the Second Circuit observed that the statute appeared "inarticulately drafted” because it could "be questioned whether it was intended that the language 'for the purpose of violating ... the public health or safety' and 'to deprive any person ... of any right ... secured by the United States Constitution' refer[s] to the 'commission of a crime’ for that purpose or the making of 'a false statement' for that purpose.” Id., 424 So.2d at 427, n. 3. The Second Circuit chose the latter interpretation, which, in this respect, accorded with the title of La.R.S. 14:126.1 to prohibit false statements "for purpose of violating public health or safety.”


text:
    In re David M. NEWELL.
    No. 2010-B-2109.
    Supreme Court of Louisiana.
    March 15, 2011.

      Charles Bennett Plattsmier, Damon Shawn Manning, for Applicant.
    David Morgan Newell, Homer, for Respondent.
   PER CURIAM.

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

UNDERLYING FACTS

Count I

In April 2002, Emily Jones, a resident of California, retained respondent to handle the succession of her aunt, Emily More-land, a resident of Claiborne Parish, Louisiana. Subsequently, the representation was expanded to encompass the successions of five other family members. As of September 2002, Ms. Jones paid respondent a total of $2,800 to handle these matters. Thereafter, respondent failed to properly communicate with Ms. Jones and failed to respond to her requests for information concerning the status of the cases. He also failed to move the succession matters forward.

In January 2003, Ms. Jones filed a complaint against respondent with the ODC. In response, respondent committed to Ms. Jones that he would have the succession matters completed by March 15, 2003. However, he failed to do so. In April 2003, Ms. Jones terminated respondent’s representation and requested a refund of the legal fees she had paid. By May 2003, respondent had not refunded any portion of the fees, |anor had he completed the succession work. Ms. Jones then filed a claim against respondent with the local justice of the peace. Subsequently, respondent met with Ms. Jones and they agreed he would continue with the representation. Respondent agreed to complete the matter by the fall of 2003 and further agreed to prepare, at no charge, four deeds transferring the succession property-

Despite Ms. Jones’s willingness to continue working with respondent, she continued to experience difficulty communicating with him, and he did not complete all of the succession matters he was retained to handle. In October 2005, in response to Ms. Jones’s continued requests for assistance in resolving the successions, respondent advised Ms. Jones that he was withdrawing from representing her.

The ODC alleged respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 1.16(d) (obligations upon termination of the representation) of the Rules of Professional Conduct.

Count II

Respondent represented Brandy McKnight in a personal injury claim against USAgencies Casualty Insurance Company (“USAgencies”) and its insured. During the course of the representation, Ms. McKnight received physical therapy from Janet Hoppe (now McKneely) of Physical Therapy Associates, Inc. Ms. Hoppe agreed to defer payment for her services until the case settled, and she put USAgencies on notice of her lien in the McKnight matter.

In July 2003, USAgencies tendered its policy limits of $10,000 in settlement of Ms. McKnight’s claim. At the time of the settlement, Ms. McKnight’s outstanding balance with Physical Therapy Associates was $3,630. The settlement draft was |smade payable to respondent, Ms. McKnight, Physical Therapy Associates, and Ms. McKnight’s insurer, State Farm Insurance Company, which had a medical payments subrogation lien on her personal injury claim. Respondent obtained the necessary endorsements and on November 10, 2003, he deposited the settlement check into his client trust account at Regions Bank. Ms. McKnight did not sign the settlement release at this time, however.

On November 14, 2003, respondent withdrew Ms. McKnight’s settlement funds from his Regions Bank trust account and deposited the funds into his client trust account at First Guaranty Bank. Subsequent to the transfer of the funds to First Guaranty Bank, Ms. McKnight rejected the settlement offer from USAgencies, apparently because State Farm had not yet agreed to release its subrogation lien. Respondent did not promptly refund the settlement funds to USAgencies, nor did he pay Physical Therapy Associates the sums owed by Ms. McKnight. Moreover, the balance of respondent’s client trust account at First Guaranty Bank fell below $10,000 between November 20, 2003 and December 1, 2003, a period of eleven days.

In February 2004, Ms. Hoppe filed a complaint against respondent with the ODC. State Farm ultimately paid Ms. McKnight’s balance to Physical Therapy Associates pursuant to her medical payments coverage; Ms. Hoppe received these funds in May 2004. In May 2005, Ms. McKnight’s claim against USAgencies was dismissed, and in January 2006, her claim against State Farm was dismissed.

The ODC alleged that if Ms. McKnight had already accepted the USAgencies settlement when she endorsed the settlement draft, then respondent violated Rules 1.15(b) (failure to promptly deliver funds owed to a client or third person) and 8.4(c) |/engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct by failing to promptly deliver to Ms. Hoppe funds owed to Physical Therapy Services. Alternatively, the ODC alleged that if Ms. McKnight properly rejected the USAgen-cies settlement, then respondent was without authority to negotiate the settlement draft and he should have refunded the settlement proceeds to USAgencies. By failing to do so, respondent violated Rules 1.2 (scope of the representation), 8.4(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. The ODC further alleged that respondent violated Rule 8.4(c) by his mishandling and short-term conversion of the proceeds of the USAgencies settlement.

Count III

While investigating the complaint filed by Ms. Hoppe, subject of Count II, supra, the ODC reviewed the records of respondent’s client trust account with Regions Bank. Although respondent contends he converted this account to an office operating account in 2002 and thereafter made the First Guaranty Bank account his “primary” client trust account, respondent’s checks and bank records for the period of October 1, 2003 to March 31, 2004 indicate that the Regions account remained designated as a client trust account. Notwithstanding this fact, respondent used the account to make personal and/or business payments. Furthermore, from November 10, 2003 to November 17, 2003, respondent commingled Ms. McKnight’s settlement proceeds with his personal and/or business funds in the Regions Bank account.

|sThe ODC alleged that respondent commingled client and third-party funds with his personal funds, in violation of Rule 1.15(a) (a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property) of the Rules of Professional Conduct. The ODC further alleged that respondent violated Rule 8.4(c) by misrepresenting his Regions Bank account as a client trust account when in fact he used the account as a business operating account.

Count IV

While investigating the complaint filed by Ms. Hoppe, subject of Count II, supra, the ODC reviewed the records of respondent’s client trust account with First Guaranty Bank. Between 2004 and 2006, respondent commingled his personal funds with client and third-party funds in the account, and used the account to make personal payments.

The ODC alleged respondent violated Rule 1.15(a) of the Rules of Professional Conduct.

Count V

In January 2004, Willie Crew, Sr. was killed in an automobile accident. Mr. Crew, Sr.’s wife and one daughter predeceased him. He was survived by a son, Willie Crew, Jr., and a daughter, Betty Draper. Mr. Crew, Sr. was also survived by a granddaughter, Vivian Jones, who was the child of his late daughter.

In December 2004, respondent agreed with Vivian Jones to represent her and her uncle, Willie Crew, Jr., in a wrongful death and survival action against State Farm Insurance Company and its insured. Under La. Civ.Code arts. 2315.1 and 2315.2, the existence of surviving children of the decedent excluded all other persons from |fibringing a wrongful death or survival action arising out of the decedent’s death. Nevertheless, in January 2005, respondent filed a petition for damages against State Farm on behalf of Ms. Jones and Mr. Crew, Jr. Vivian Jones, Willie Crew, Jr., and the Estate of Willie Crew, Sr. v. State Farm, et al, No. 36565 on the docket of the 2nd Judicial District Court for the Parish of Claiborne. In February 2005, defendants filed an answer to the petition alleging that Ms. Jones did not have a cause of action to recover damages for the death of her grandfather.

Meanwhile, at the same time, Willie Crew, Sr.’s other surviving child, Betty Draper, had filed a wrongful death and survival action in the matter of Betty Marie Draper v. Robert L. Ferguson and State Farm Mutual Automobile Insurance Co., No. 36563 on the docket of the 2nd JDC. Ms. Draper was represented in the matter by attorney Rick Warren. In April 2005, Ms. Draper’s suit was consolidated with the suit filed by respondent on behalf of Ms. Jones and Willie Crew, Jr.

In March 2005, counsel for State Farm wrote to respondent and Mr. Warren to advise that the insurer would like to settle the claims by tendering policy limits of $25,000. However, with regard to the claim of Ms. Jones, counsel again pointed out that Mr. Crew, Jr. and Ms. Draper, “as the sole surviving children of the deceased, are the only persons entitled to recover under [La. Civ.Code art. 2315.2].”

Upon receiving this correspondence, respondent wrote to Mr. Crew, Jr. and Ms. Jones and indicated that State Farm was ready to settle the case. However, because Ms. Jones was not a proper party plaintiff under the Civil Code, respondent informed his clients that State Farm had delayed the settlement “until we assure them that this |7is not an issue.” Respondent therefore requested that his clients agree to share the settlement funds equally. In response, Mr. Crew, Jr. instructed respondent in writing to “omit my niece Vivian Jones because she is not a surviving child under Art. 2S15.1.A(1).” Mr. Crew, Jr. also requested a copy of his file. Respondent failed to comply with his client’s requests.

In May 2005, State Farm’s counsel sent respondent a check in the amount of $12,500, representing half of the insurer’s policy limits. The check was made payable to Willie Crew, Jr. and respondent. The cover letter accompanying the check made reference to the agreement of all counsel that Ms. Jones “was a grandchild at the time of the accident and is not a proper party claimant and will therefore not share in the settlement.”

Within days of the issuance of the settlement cheek, Ms. Jones wrote to respondent to object to Ms. Draper’s participation in the settlement. Ms. Jones subsequently executed a notarized statement expressing her desire to have respondent continue to represent her in the wrongful death and survival action. Despite the ongoing conflict of interest between Ms. Jones and Mr. Crew, Jr., respondent continued to represent both parties. In September 2006, respondent finalized the settlement with State Farm and disbursed $8,100 to Mr. Crew, Jr. In October 2006, the trial court signed an order dismissing Jones, et al. v. State Farm, et al with prejudice as to plaintiffs Vivian Jones and Willie Crew, Jr.

The ODC alleged respondent violated Rules 1.4, 1.7 (conflict of interest), 3.1 (meritorious claims and contentions), and 8.4(d) of the Rules of Professional Conduct. The ODC further alleged that respondent engaged in an improper business transaction with Willie Crew, Jr., in violation of Rule 1.8. This alleged violation | ^stemmed from respondent’s referral of Mr. Crew, Jr. to Alpine Finance, LLC, a finance company owned by respondent and his children, in response to Mr. Crew, Jr.’s requests for cash advances.

Count VI

In March 2005, Merry Jona Wallace paid respondent $500 to handle a bankruptcy matter. Thereafter, respondent failed to communicate with Ms. Wallace regarding the status of her case, despite her telephone calls and messages. By November 2005, when respondent still had not filed Ms. Wallace’s bankruptcy petition, she requested in writing that he refund the fee. Respondent failed to comply with Ms. Wallace’s request. In February 2006, Ms. Wallace delivered a letter to respondent’s office terminating his representation and again requesting a refund of the fee she paid. As of the date of the filing of the formal charges in 2009, respondent had not refunded any sums to Ms. Wallace.

The ODC alleged respondent violated Rules 1.3,1.4,1.5(f)(5) (failure tó refund an unearned fee), and 1.16(d) of the Rules of Professional Conduct.

Count VII

In 2003, Wilma Holcomb retained respondent to represent her in a legal matter in which she sought to obtain funds from the succession of her deceased ex-husband. The funds at issue had been held in the registry of the court pending a determination as to the rightful owners of the funds. Respondent agreed to handle the matter for a flat fee of $5,000, plus $500 in court costs. Ms. Holcomb paid respondent $5,500 in June 2008.

loin July 2005, respondent obtained an order from the trial court permitting him to withdraw from the representation of Ms. Holcomb. At that time, respondent had done some work in the matter, but Ms. Holcomb had not obtained any of the funds held in the registry of the court, nor had there been a ruling as to the rightful owners of the funds. Nevertheless, respondent failed to refund any portion of the fee paid to him by Ms. Holcomb.

The ODC alleged respondent violated Rule 1.16(d) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In April 2009, the ODC filed seven counts of formal charges against respondent, as set forth above. Respondent answered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After consideration of the consolidated charges, the hearing committee made the following findings based upon the evidence and testimony at the hearing:

Count I:

1.In or around April of 2002, Ms. Jones hired respondent on a flat fee basis to handle the Succession of Emily More-land.
2. Subsequently, the representation expanded to related successions and deeds.
3. Respondent was paid a flat fee of $2,800 to handle these matters.
4. Ms. Jones paid respondent the entire fee on September 12, 2002.
5. Respondent failed to communicate with Ms. Jones concerning the matters from September 2002 through January 2003.
|in6. In January 2003, Ms. Jones filed an ethics complaint against respondent. In response to the ethics complaint, respondent committed to have the work completed by March 15, 2003.
7. When the work was not completed as promised, respondent was terminated by Ms. Jones in April, but respondent refused to refund any of the fee.
8. Ms. Jones filed suit against respondent with the local justice of the peace, in an effort to secure a refund.
9. In compromise of the justice of the peace suit, in June 2003, respondent promised to complete the successions and related property transfers by November of that same year.
10. The successions and related property transfers were not filed until early 2004, and were never forwarded to the Tax Assessor’s Office.
11. When Ms. Jones complained that the Tax Assessor’s Office did not have notice of the transfers of property, respondent failed to take any action to correct the error.
12. Respondent admitted that he was aware that the Tax Assessor needed to be made aware of the transfers, but took no action.
13. Respondent violated Rule 1.3, requiring a lawyer to “act with reasonable diligence and promptness in representing a client,” when he failed to complete the succession- and related property transfers through to ensuring that the Tax Assessor’s Office was informed of all transfers, despite providing two deadlines within which he told his client the work would be completed.
14. Respondent violated Rule 1.4, requiring a lawyer to maintain reasonable communication with his client concerning the representation, during the time period of September 2003 through January 2004.
|n15. Respondent violated Rule 1.16(d), re- - quiring an attorney to return any unused portion of his fees upon termination of his representation by the client, in failing to return the fee upon his termination in April 2004.

Count II:

1. Respondent represented Brandy McKnight in a personal injury claim.
2. Respondent and [USAgencies] reached an agreement to settle for policy limits, but no agreement was reached with State Farm, which had a subrogation interest, or with respondent’s client, Ms. McKnight.
3. Despite the lack of a settlement agreement, respondent had Ms. Hoppe (McKneely), a lien holder, endorse the check, but refused to pay the amount of the lien, or inform Ms. Hoppe that the settlement was not perfected.
4. Respondent expressed his understanding that once the settlement was not going to go through, the money should have been returned to the insurer, but was not.
5. Ms. Hoppe recovered funds owed to her through State Farm under a different provision of the policy and not from respondent.
6. Respondent’s trust account balance fell below the amount necessary to cover the McKnight settlement check, when a check was written out of the trust account to pay a family business of respondent’s.
7.When Ms. McKnight refused to execute the settlement documents, respondent’s options were clear: he was to refund the money to the insurer, and inform both State Farm and Ms. Hoppe of what transpired. In failing to either inform Ms. Hoppe or to pay her lien, respondent violated Rule 1.15(b), as it was in existence in 2003.
| ,¾8. In failing to return the money to the insurer, respondent violated Rule 1.2, in failing to follow his client’s directions concerning the objectives of the matter. It also delayed the administration of justice in violation of Rule 8.4(d), in that the parties claiming rights to the proceeds did not have an opportunity to argue that the negotiation of the check constituted a perfected settlement.
9. The trust account issue raised in this count appears to have been caused by respondent’s failure to properly monitor his trust account or train and supervise individuals delegated with authority, but did not rise to the level of a violation of Rule 8.4(c), as there was no evidence of the intent to act with “dishonesty, fraud, deceit, or misrepresentation.”

Count III:

1. Respondent failed to properly change the designation of the Regions Bank account from a trust account to an operating account.
2. Respondent admitted that he was aware that he was not to commingle client funds with his personal or business funds when the McKnight settlement check was incorrectly deposited into the Regions Bank account.
3. Respondent violated Rule 1.15(a) when he deposited the McKnight settlement check into his Regions Bank account. This error was caused by his failure to properly designate the account as an operating account.
4. There was insufficient evidence to establish that respondent violated Rule 8.4(c), as there was no evidence of intent of “dishonesty, fraud, deceit, or misrepresentation.”

Count IV:

1.Respondent expressed awareness of the duties he owed under Rule 1.15, concerning the safekeeping of property.
11S2. Despite this awareness, respondent routinely allowed his trust account to be used for business and personal interests unrelated to his legal practice.
3. Respondent failed to instruct and monitor employees and staff on the proper use of the trust accounts.
4. Respondent violated Rule 1.15 in numerous instances by commingling personal funds in his trust account. The committee concludes that the pattern of behavior in using the trust account in this manner makes the risk of conversion great.

Count V:

1. On or about January 16, 2004, Willie Crew, Sr. died in an automobile accident.
2. Mr. Crew, Sr. was preceded in death by his wife and one child (the mother of Vivian Jones) and survived by two children, Willie Crew, Jr. and Betty Draper.
3. La. Civ.Code arts. 2315.1 and 2315.2 exclude, by omission, grandchildren from being parties to a survival or wrongful death action.
4. In December 2004, respondent agreed with Vivian Jones, grandchild of the decedent, to represent both her and her uncle Willie Crew, Jr. in a survival and wrongful death action.
5. Prior to filing suit, respondent did not speak to Willie Crew, Jr.
6. On January 18, 2005, respondent filed a petition representing the Estate of Willie Crew, Sr., Vivian Jones, and Willie Crew, Jr.
7. On February 10, 2005, respondent was made aware in an answer filed by State Farm that Vivian Jones did not have a cause of action in this matter.
8. On March 3, 2005, respondent was informed by State Farm’s attorney via correspondence that Vivian Jones could not recover.
|¼9. On April 11, 2005, respondent sought an agreement from Ms. Jones and Mr. Crew, Jr. to split the settlement proceeds.
10. On April 20, 2005, Mr. Crew, Jr. requested respondent send him a copy of the insurance policy and lawsuit, but respondent never responded.
11. On May 5, 2005, [counsel for State Farm] wrote a letter confirming that respondent and Rick Warren (who represented [Ms. Draper]), had agreed that Ms. Jones would not recover in the settlement.
12. On May 9, [2005], Ms. Jones wrote to respondent objecting to Ms. Draper’s participation in the settlement.
13. On October 31, 2005, Ms. Jones indicated in a statement that she wanted respondent to continue to represent her in the litigation.
14. Despite the ongoing conflict of interest between Mr. Crew, Jr. and Ms. Jones, respondent continued to represent both parties.
15. Respondent arranged a loan with a family-owned finance company for Mr. Crew, Jr.
16. Respondent engaged in an ongoing prohibited conflict of interest by representing Mr. Crew, Jr. and Ms. Jones in the personal injury action in violation of Rule 1.7.
17. Respondent knowingly filed a wrongful death and survival claim on behalf of Ms. Jones, even though she was an excluded party, thereby delaying the resolution of the matter in violation of Rules 3.1 and 8.4(d).
18. Respondent failed to properly and timely communicate with his clients regarding their true interests and the status of the representation, and failed to respond to Mr. Crew, Jr.’s requests for documents and information in violation of Rule 1.4.
11B19. The financial transaction with Alpine Finance and Mr. Crew, Jr. was likewise a violation of Rule 1.8, in that there was no disclosure to the client of respondent’s interest in Alpine Finance, which he clearly had de facto control of.

Count VI:

1. Respondent was hired by Ms. Wallace to file a Chapter 7 bankruptcy on her behalf for a flat fee of $500, inclusive of filing fees.
2. Respondent advised Ms. Wallace that, in his judgment, she did not need to file bankruptcy, and he would not file one on her behalf.
3. Respondent failed to either comply with Ms. Wallace’s request to file bankruptcy or refund her fee when he refused to file the pleadings.
4. Respondent violated Rule 1.3, in failing to act with reasonable diligence and promptness in representing Ms. Wallace in filing her requested bankruptcy petition.
5. Respondent violated Rule 1.4 in failing to promptly communicate with Ms. Wallace that he did not intend to file the petition she requested.
6. Respondent violated Rule 1.5(f)(5) and 1.16(d) in failing to refund the unearned portion of the fixed fee when he did not file the bankruptcy petition and his representation was terminated.

Count VII:

1. Respondent agreed to represent Ms. Holcomb through a hearing to determine her right to funds held in the registry of the court.
2. When Ms. Holcomb refused a settlement negotiated by respondent, he withdrew from the representation prior to participating in any hearing.
3. Respondent failed to refund the unearned fee.
11fi4. Respondent violated [Rule 1.16(d) ] in failing to refund the unearned fee when he did not take the matter to hearing.

Based upon these findings, the committee determined respondent violated duties owed to his clients and to the legal system. The committee found respondent’s conduct was negligent, knowing, and intentional, and caused both actual and potential harm. The applicable baseline sanction in this matter is suspension.

The committee found the following aggravating factors are present: a dishonest or selfish motive (in Counts I, VI, and VII), a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims (in Counts I and V), substantial experience in the practice of law (admitted 1983), and indifference to making restitution (in Counts I, VI, and VII). In mitigation, the committee recognized the following factors: absence of a prior disciplinary record and personal and emotional problems.

Considering the foregoing findings and the prior jurisprudence of this court, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee further recommended that respondent be ordered to make restitution of the unearned fees owed to his clients in Counts I, VI, and VII, and that he be required to attend the Ethics School and Trust Accounting School offered by the Practice Assistance and Improvement Committee of the Louisiana State Bar Association (LSBA).

Both respondent and the ODC objected to the hearing committee’s report. Respondent asserted that the committee erred in finding the ODC sustained its burden of proof with respect to the alleged violations in Counts I, II, V, VI, and VII. Regarding his “technical violations of the handling of the trust account” in Counts III and IV, respondent pointed out that no actual harm resulted to any client or third party |17as a result of his conduct, and therefore the appropriate discipline in this matter is a “private reprimand.” For its part, the ODC objected to the committee’s determination that respondent did not violate Rule 8.4(c) as charged in Counts II and III. The ODC also objected to the committee’s failure to find as an aggravating factor that respondent made false statements or engaged in other deceptive practices during the disciplinary process. Finally, the ODC maintained that the sanction recommended by the committee is too lenient.

Disciplinary Board Recommendation

After reviewing the record of this matter, the disciplinary board found the hearing committee’s factual findings are supported by the record and are not manifestly erroneous. The board also agreed with the committee’s determinations regarding the alleged violations of the Rules of Professional Conduct, except that in Count II, the board found sufficient evidence that respondent violated Rule 8.4(c) by failing to notify USAgen-cies of Ms. McKnight’s decision to reject the settlement. The board also found in Count II that the record supports an independent finding of respondent’s violation of Rule 5.3(a) (responsibilities regarding nonlawyer assistants), which was not charged in the formal charges but which the board characterized as “a lesser included offense.”

The board determined respondent violated duties owed to his clients and to the legal system. The board found respondent’s conduct was negligent, knowing, and intentional, and caused both actual and potential harm. Relying on the ABA’s 11SStandards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction in this matter is suspension.

The board agreed with the aggravating and mitigating factors identified by the committee. In addition, the board agreed with the ODC that respondent made false statements or engaged in other deceptive practices during the disciplinary process by falsely characterizing the extent of another attorney’s involvement in the Crew matter. The board also noted respondent’s “lack of remorse,” which is not an aggravating factor specifically recognized by the ABA Standards.

Considering the foregoing findings, the prior jurisprudence of this court, and the sanction recommended by the committee, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended that respondent be ordered to make restitution of the unearned fees owed to his clients in Counts I, VI, and VII.

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

DISCUSSION

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), 1918 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.

The hearing committee made numerous and specific factual findings in its thorough report to lend support to its determination that respondent failed to communicate with clients, neglected legal matters, failed to refund unearned fees, engaged in conduct constituting a conflict of interest, commingled and converted client and third-party funds, and engaged in conduct prejudicial to the administration of justice. These findings are supported by the record of this matter.

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).

The record supports a finding that respondent’s conduct was negligent, knowing, and intentional, and caused both actual and potential harm. The applicable baseline sanction is a period of suspension.

The ODC does not contest that two mitigating factors are present: absence of a prior disciplinary record and personal and emotional problems. In aggravation, the 120following factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution.

We agree that the one year and one day suspension recommended by both the committee and the board falls squarely within the range of sanctions imposed by this court in prior cases involving similar misconduct. In light of the mitigating factors present in this case, we will defer all but six months of the suspension, subject to respondent’s successful completion of a two-year period of supervised probation governed by the following conditions: (1) Respondent shall successfully complete the LSBA’s Ethics School and Trust Accounting School; (2) Respondent’s trust account will be audited semi-annually for a period of two years, for a total of four audits. The audits will be conducted by a certified public accountant selected or approved by the ODC, with the cost and expense of the audits to be paid by respondent; and (3) Respondent shall make restitution to Emily Jones, Merry Jona Wallace, and Wilma Holcomb for any unearned fees. We caution respondent that any violation of the conditions of probation, or any other misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that David M. Newell, Louisiana Bar Roll number 1107, be and he hereby is suspended from the practice of law for one year and one day. It is further ordered that all but six months of the suspension shall be deferred. Following the active portion 12i of the suspension, respondent shall be placed on supervised probation for two years governed by the conditions set forth in this opinion. Any misconduct by respondent during the probationary period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent later explained that he did so because the funds had been mistakenly deposited into the Regions Bank trust account, which is "dedicated to business matters,” while the First Guaranty Bank trust account is "for other matters including personal injury matters.”

      . As previously noted, respondent withdrew Ms. McKnight’s settlement funds from his Regions Bank trust account and deposited the funds into his client trust account at First Guaranty Bank on November 14, 2003. However, the check did not clear the Regions Bank account until November 17, 2003.

      . It is well settled that grandchildren are excluded from the first class of beneficiaries under La. Civ.Code arts. 2315.1 and 2315.2, even where the grandchild may be classified as an heir in the grandparent’s succession through representation of a parent who predeceased the grandparent. See Hunt v. New Orleans Ry. & Light Co., 140 La. 524, 73 So. 667 (1916); Chatman v. Martin, 245 So.2d 423 (La.App. 2nd Cir.1971); and Viau v. Batiste, 332 So.2d 512 (La.App. 4th Cir.), writ denied, 337 So.2d 531 (La.1976).

      . Ms. Draper also settled her claim with State Farm, and her suit was subsequently dismissed with prejudice.

      . The advances were repaid from Mr. Crew, Jr.’s portion of the State Farm settlement, The amount owed to Alpine Finance at that time was $3,391.61.

      . Specifically, the ODC contended that respondent attempted to pressure two of his clients into withdrawing their complaints against him, and falsely claimed that another attorney was responsible for the Crew matter “from day one,” despite evidence to the contrary.

      . The board did not agree with the ODC that respondent had also violated Rule 8.4(c) in connection with Count III.

      . The board did not agree with the ODC's argument that respondent had attempted to pressure two of his clients into withdrawing their complaints against him.

      . The board declined to adopt the recommendation that respondent be required to attend the LSBA’s Ethics School and Trust Accounting School, noting that such conditions should be addressed if and when respondent applies for reinstatement to the practice of law.