author: WISE, Presiding Judge. WELCH, Judge,

text:
    STATE of Alabama v. Elaine BAILEY.
    CR-09-0115.
    Court of Criminal Appeals of Alabama.
    April 30, 2010.

      Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellant.
    Benjamin E. Schoettker, Montgomery, for appellee.
   WISE, Presiding Judge.

The appellee, Elaine Bailey, was indicted for unlawful possession of a controlled substance, a violation of § 13A-12-212(a)(1), Ala.Code 1975. She filed a motion to suppress a crack rock law enforcement officers seized during a patdown search. After conducting a hearing, the trial court granted Bailey’s motion to suppress. This appeal followed.

During the suppression hearing, Officer Shalinda Teresa McCoy of the Montgomery Police Department testified that, on May 23, 2009, she and her partner, Officer Caufield, were on the Mobile Highway; that she thought it was probably either 11:00 p.m. or 12:00 a.m.; that they saw a bicycle traveling down the middle of the road and into oncoming traffic; that they saw Bailey and a man on the bicycle; that the man was peddling the bicycle, and Bailey was holding onto him and standing on the back of the bicycle; that the two were not wearing helmets and did not have reflectors or any other type of safety gear; that not wearing helmets and not having reflectors was a safety hazard and a violation; that she and Caufield stopped Bailey and the man; and that they asked Bailey and the man for identification, but neither of them could produce any type of identification. Subsequently, the following occurred:

“[PROSECUTOR:] And when they weren’t able to produce identification, what did you do?
“[WITNESS:] Asked both of them to step off the bike and put the bike down. My partner, Officer Caufield, he patted down the guy, the male subject, and I patted down the female. We patted them down for officer safety because they didn’t have any identification and we didn’t know who they were.
“[PROSECUTOR:] Now, is that a routine practice? When you don’t have — when someone doesn’t give you ID, do you pat people down? Is it checking for IDs? Is that what you’re doing?
“[WITNESS:] No. We’re doing it for officer safety to see if they could have weapons or anything because we don’t know who they are. They could be ex-felons or anything. We don’t know who they are.”

(R. 6.)

McCoy further testified that she patted down Bailey; that Bailey had bulky items in her pocket, and she asked Bailey what was in her pocket; that Bailey pulled everything out of her pocket; and that Bailey had lip gloss, condoms, and a crack rock in her pocket.

Finally, McCoy testified that the stop occurred in an area that was known for prostitution; that, when she and Caufield were talking to them, the man told her that he did not know Bailey and had just met her, but Bailey said the man was her boyfriend; that the two stories did not add up; and that she and Caufield thought it might be “a prostitution deal or something.” (R.8.)

The State argues that the trial court erroneously granted Bailey’s motion to suppress the crack rock McCoy seized during the patdown search. Specifically, it contends that, based on the totality of the circumstances, a reasonably prudent person in McCoy’s position would have been justified in believing that her safety and the safety of others was in danger. In State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996), the supreme court stated the following with regard to standards of review to be applied when reviewing a trial court’s ruling on a motion to suppress:

“ “Where evidence is presented to the trial court ore terms in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 686 So.2d 415 (Ala.1994).’
“[Ex parte Agee,] 669 So.2d [102,] 104 [ (Ala.1995) ].”

In R.W. v. State, 913 So.2d 505, 512-13 (Ala.Crim.App.2005), this court addressed the issue of patdown searches as follows:

“ ‘[I]n Terry v. Ohio, [392 U.S. 1 (1968) ], the United States Supreme Court held that a limited search for weapons was partially justified by the need to protect the arresting officer from assault with a concealed weapon. “In determining whether a police officer had a basis for initiating a frisk, there are two matters to be considered: whether the officer had a sufficient degree of suspicion that the party frisked was armed and dangerous; and whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed.” LaFave, Search & Seizure § 9.4(a) (2d ed.1987). By concluding that the officer had sufficient articulable suspicion to make the investigatory stop, we also conclude that the officer was rightfully in the presence of the appellant, being the party frisked. Moreover, the United States Supreme Court stated in Terry v. Ohio, supra:
“ ‘ “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 [85 S.Ct. 223, 224, 13 L.Ed.2d 142] (1964); Brinegar v. United States, 338 U.S. 160, 174-176 [69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879] (1949); Stacey v. Emery, 97 U.S. 642, 645 [24 L.Ed. 1035] (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.”
“ ‘392 U.S. at 27, 88 S.Ct. at 1883.
“ ‘ “We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”
‘“Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. at 1884.’
“State v. Richardson, 616 So.2d 400, 402-03 (Ala.Crim.App.1993).
“Here, Officer Drummer and other officers received a dispatch regarding an anonymous caller who reported that several young men were using illegal drugs on the porch of a residence in southwest Birmingham. The residence was in a high-crime area specifically known as an area where illegal drug activity took place; there had also been several recent burglaries in the area. When Officer Drummer and the other officers arrived, they saw several young men on the front porch of the residence as the anonymous caller described. All of the men, including R.W., were fidgeting and appeared nervous, and R.W., at one point, had his hands inside his shirt. While conducting interviews with the men, one officer discovered a ‘roach’ in a flowerbed near the porch. Considering the totality of the circumstances, we conclude that there was reasonable suspicion that R.W. was involved in criminal activity and that R.W. may have been armed so as to justify the Terry stop and frisk. Although Officer Drummer testified that he did not believe, when he initiated the patdown, that R.W. was armed, Officer Drummer’s subjective beliefs are irrelevant in determining reasonable suspicion. ‘Reasonable suspicion, like probable cause, is measured using an objective standard. Williams [v. State], 716 So.2d [753,] 756 [ (Ala.Crim.App.1998) ]. Considering the circumstances, a reasonably prudent person in Officer Drummer’s position would have been justified in believing that his safety as well as the safety of his fellow officers was in danger. See, e.g., Hall v. State, 897 So.2d 410 (Ala.Crim.App.2003), and Smith v. State, 884 So.2d 3 (Ala.Crim,App.2003). See also Hilliard v. Commonwealth, 17 Va.App. 23, 26, 434 S.E.2d 911, 913 (1993) (‘Suspicion of illegal drug possession and distribution is a circumstance which gives rise to an inference of dangerousness.’).”

This court has also held that

“ ‘not all stops call for a frisk.’ 3 La-Fave § 9.4, p. 115. A police officer may conduct a reasonable search of a person for weapons ‘where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Terry, 392 U.S. at 27, 88 S.Ct. at 1883.
“In determining whether a frisk is justified, two factors must be considered:
“ ‘In determining whether a police officer had a basis for initiating a frisk, there are two matters to be considered. One concerns whether the officer had a sufficient degree of suspicion that the party frisked was armed and dangerous, and the other whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed.’ 3 LaFave at § 9.4(a), p. 109.”

Worthy v. State, 473 So.2d 634, 638 (Ala.Crim.App.1985).

First, we must determine whether McCoy and Caufield were properly in Bailey’s presence. Initially, we note that Bailey did not contest that McCoy and Cau-field were properly in her presence. Moreover, § 32-5A-261, Ala.Code 1975, provides that “[n]o bicycle shall be used to carry more persons at one time than the number for which it is designed and equipped.” Additionally, § 32-5A-263(a), Ala.Code 1975, provides:

“Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction.”

Further, § 32-5A-265(a), Ala.Code 1975, provides:

“Every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least 500 feet to the front and with a red reflector on the rear of a type approved by the department which shall be visible from all distances from 100 feet to 600 feet to the rear when directly in front of lawful lower beams of head lamps on a motor vehicle. A lamp emitting a red light visible from a distance of 500 feet to the rear may be used in addition to the red reflector.”

Finally, § 32-5A-266(a), Ala.Code 1975, provides:

“It is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this article.”

In this case, McCoy testified that it was between 11:00 p.m. and 12:00 a.m.; that Bailey and the man were on a bicycle traveling down the middle of the road and into oncoming traffic; that the man was peddling the bicycle, and Bailey was holding on to him and standing on the back of the bicycle; that Bailey and the man were not wearing helmets and did not have any reflectors; and that the fact that Bailey and the man were not wearing helmets and did not have any reflectors was a safety hazard. Under these circumstances, the officers were rightfully in Bailey’s presence.

Next, we must determine whether the officers had reason to believe that Bailey was armed and dangerous. The State presented evidence that the stop occurred between 11:00 p.m. and 12:00 a.m. in an area that was known for prostitution. Also, the stop involved two different individuals, neither of whom could produce identification. McCoy testified that she and Caufield patted down Bailey and the man because they could not produce any identification. She further testified that she did so for officer safety because she did not know who Bailey and the man were and because they could have been ex-felons. During cross-examination, defense counsel asked McCoy why the fact that Bailey did not have identification caused her to be concerned about officer safety, and McCoy explained:

“Well, I didn’t know if she had any weapons or anything on her. I didn’t know her past history or anything.”

(R. 10.)

At the end of the suppression hearing, the trial court stated:

“And I was waiting, [prosecutor]. You know, I was hoping she’d say something like, you know, it was late at night, Judge. I mean, Mobile Highway, you know, I’ve been out there before at 11 o’clock at night. You know, it’s a high crime area. You know, prostitution, drugs. I mean, these people are riding their bike the wrong way. You know, it’s late at night. You know, I don’t know if they’ve got weapons or not, you know, but in my experience as a police officer, I’ve been out there a million times, and, you know, I’m just not going to take a chance for my safety. I mean, something.
“... I mean, she didn’t articulate anything about it. I articulated it for her. I mean, a good cop, that’s what I’m going to say. Man, it’s 11 o’clock at night. It’s Mobile Highway, high prostitution, drug area. I’ve been out there numerous times. These yahoos are riding their bike in the middle of the road going the wrong way. Shoot, yeah, I’m patting them down. They don’t have any identification on them. I don’t know what they’ve got on them. I mean, yeah, I articulated it, but she didn’t.”

(R. 13-14.) Although McCoy may not have artfully stated her reasons for performing the patdown of Bailey, her testimony clearly established that she did so based on a concern for officer safety.

Further, in State v. Taylor, 46 So.3d 504, 508-09 (Ala.Crim.App.2010), we addressed a similar situation as follows:

“This Court has recognized that a traffic stop is ‘ “ ‘more analogous’ to the brief investigative detention authorized by Terry” ’ than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App.1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Crim.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979). So long as the police officer has properly seized the occupants of the car, the officer may order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), or a passenger, State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000)(recognizing Maryland v. Wilson, 519 U.S. 408, 415 (1997)), cert. denied, 814 So.2d 988 (Ala.2001), out of the car without violating the Fourth Amendment. See, State v. Abner, 889 So.2d 52, 58-54 (Ala.Crim.App.2004) (recognizing the applicability of Mimms and Wilson in Alabama).
“When a police officer properly stops a vehicle for a traffic violation, the police officer may not only order the driver out of the vehicle, but may also pat down the driver for weapons if the officer reasonably believes that the driver is armed and dangerous. Mimms, 434 U.S. at 112. In Arizona v. Johnson, — U.S. —, 129 S.Ct. 781 (2009), the United States Supreme Court explained:
“ ‘[I]n a traffic-stop setting, the first Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a pat-down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.’
“— U.S. at -, 129 S.Ct. at 784 (emphasis added). See also B.A.H. v. State, 28 So.3d 29 (Ala.Crim.App.2009) (recognizing the applicability of Arizona v. Johnson in Alabama).
“In the instant case, the officers observed Taylor’s vehicle park in front of a house known for drug activity in a high-crime area and witnessed someone approach the house and return to the car at approximately 5:00 a.m. The officers then witnessed Taylor commit a traffic offense by driving without his headlights on and initiated a traffic stop. During the traffic stop, Taylor told Officer But-terbrodt that he did not have his driver’s license or any form of identification on his person. Officer Butterbrodt testified that Taylor could not identify himself, and that he deemed it necessary to conduct a patdown search because it was his belief as a police officer that Taylor was consciously trying to hide his identity and possibly other evidence of criminal activity that might put the two officers in danger. See generally Tuohy v. State, 776 So.2d 896, 899-900 (Ala.Crim.App.1999), writ quashed, 776 So.2d 902 (Ala.2000). Furthermore, Officer Page testified that in situations where a motorist cannot produce a driver’s license, proof of identification, or proof of insurance, he will write down the information given to him by the suspect and attempt to verify the information on his computer. If an officer cannot verify the information given to him by the suspect, Officer Page testified that it was police policy to place the suspect in protective custody ‘because, at the moment, we don’t know who they are and what kind of warrants they have.’ (R. 29.)
“Given the totality of the circumstances, Officer Butterbrodt was justified in conducting a patdown search for weapons and seizing the crack pipe found in Taylor’s pocket. The officers observed Taylor in a high-crime area and witnessed someone get out of the car being driven by Taylor and walk up to a house known for its drug activity. This Court has previously held that these factors may give rise to a reasonable suspicion that criminal activity is afoot. See Landrum, 18 So.3d at 428 (witnessing the appellant repeatedly exit his car and approach a nearby house late at night in a high-crime area created sufficient reasonable suspicion for further investigation pursuant to Terry ). Furthermore, Officer Butterbrodt testified that, based on his experience, suspects who say they have no identification may be trying to hide something like weapons, so he felt as if he needed to pat down Taylor in order to make sure he was not armed. Officer Butter-brodt’s inference that Taylor could be armed was reasonable, and this Court must give due weight to ‘ “the specific reasonable inference which [a police officer] is entitled to draw from the facts in light of his experience.” ’ State v. Hails, 814 So.2d at 986, quoting Terry, 392 U.S. at 27. Accordingly, the circuit court abused its discretion when it found that the police lacked sufficient reasonable suspicion to pat down Taylor, and it erred in granting Taylor’s motion to suppress.”

Based on the totality of the circumstances in this case, a reasonably prudent person in McCoy’s circumstances would have been warranted in the belief that her safety or that of others was in danger. In fact, this case highlights the precarious situation law enforcement officers are faced with when they stop unknown individuals in high crime areas, particularly at night. Therefore, we conclude that the trial court erroneously granted Bailey’s motion to suppress. Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, KELLUM, and MAIN, JJ., concur. WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

I disagree with the majority’s determination that the trial court erred when it granted Elaine Bailey’s motion to suppress. The trial court correctly determined that the State did not establish that Officer McCoy had reasonable grounds to believe that Bailey was armed and dangerous and that it was necessary for the protection of the officers and others to conduct a patdown search.

The majority seems to imply that the trial court granted Bailey’s motion to suppress, at least in part, because the court determined that Officer McCoy did not “artfully” state her reasons for conducting the patdown search; however, the majority found this ruling to be error because, according to the majority opinion, Officer McCoy sufficiently articulated that the search was based on her concern for her and her fellow officer’s safety.

Officer McCoy’s testimony establishes clearly that she conducted the patdown search because Bailey and her companion did not produce any identification, and the officers therefore did not know who they were. The only mention of “officer safety” was related to the lack of identification and Officer McCoy’s speculation that “[tjhey could be ex-felons or anything.” Even under a liberal application of the principles announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the facts before the trial judge would not have warranted a reasonably prudent person to believe that Bailey was armed and dangerous. Being presented with only the officer’s “unparticularized suspicion or ‘hunch,’ ” 392 U.S. at 27, 88 S.Ct. 1868, the trial court correctly suppressed the evidence obtained in the search.

I note, moreover, that, although Officer McCoy testified that the patdown revealed “bulky items” in Bailey’s pocket, she did not testify that she had any indication that the items might have been weapons.

“Q. All right. You also mentioned the word routine practice when people don’t have ID. Is it your routine practice to pat somebody down when they don’t have identification?
“A. Yes.
“Q. Okay. No matter — there’s no other circumstances involving whatever? If somebody — if you ask for ID and they don’t have an ID—
“A. No, no, no, I’m not saying that. If they’re in a vehicle or we come in contact with them, yes, that is correct.”

(R. 9-10.)

Officer McCoy testified that she routinely performed a patdown when an individual could not produce any identification. She did not state any facts that indicate a reasonable belief that Bailey was armed.

The facts of this case are similar to Smith v. State, 19 So.3d 912 (Ala.Crim.App.2009), in which this court reversed a trial court’s denial of a motion to suppress and stated:

“In this case, [Officer] Danley testified that he stopped Smith because he was walking in the middle of the street; that the area was dark; and that there was a lot of drug activity in that area. With regard to the patdown, Danley asserted that he patted Smith down for officer safety and that he usually checks subjects for weapons when he gets out of the vehicle and approaches them. However, Danley did not testify that he believed Smith was armed. Further, he did not testify as to any specific facts that would support a finding that he was justified in believing that Smith was armed and presently dangerous. Therefore, Danley was not justified in stopping Smith and performing a patdown search, and the trial court erred when it denied Smith’s motion to suppress the evidence Danley seized from his person.”

19 So.3d at 919.

An officer may patdown an individual only when the officer has reason to believe that he is dealing with an individual who is armed and dangerous.

“Furthermore, there was nothing in the record concerning the officers’ justification for the weapons frisk performed on the appellant. The right to frisk a suspect for weapons is separate from an officer’s right to stop a suspect. Under Terry analysis, it is only ‘where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime,’ that a weapons frisk comes into play. Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883. Moreover, the officer ‘must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.’ Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968).”

Brannon v. State, 549 So.2d 532, 538 (Ala.Crim.App.1989).

The testimony presented to the trial court did not contain sufficient facts to support the Terry patdown search. The majority quoted the testimony of Officer McCoy as justification for the patdown. The facts presented by the majority were as follows:

“The State presented evidence indicating that the stop occurred between 11:00 p.m. and 12:00 a.m. in an area known for prostitution. Also, the stop involved two different individuals, neither of whom could produce identification. Officer McCoy testified that she and [Officer] Caufield patted down Bailey and the man because Bailey and the man could not produce any identification. She further testified that she did so for officer safety because she did not know who Bailey and the man were and because they could have been ex-felons. During cross-examination, defense counsel asked Officer McCoy why the fact that Bailey did not have identification caused her to be concerned about officer safety, and Officer McCoy explained:
“ ‘Well, I didn’t know if she had any weapons or anything on her. I didn’t know her past history or anything.’ ”
“(R. 10.)”

Bailey v. State, 49 So.3d 1245, 1249 (Ala.Crim.App.2010).

Under that rationale, an officer is justified in searching anyone whose history he or she did not know. Officer McCoy did not articulate any facts that support the view that a reasonably prudent person in the officer’s situation would have believed that Bailey was armed and dangerous.

The trial court’s judgment suppressing the evidence was sound and should be affirmed. Therefore, I respectfully dissent.


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Sherry Grant HALL, Respondent.
    No. SC07-863.
    Supreme Court of Florida.
    Aug. 26, 2010.
    Rehearing Denied Nov. 4, 2010.
    John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, and Olivia Paiva Klein, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Lois Beryl Lepp, P.A., Pensacola, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Sherry Grant Hall. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed herein, we disapprove the referee’s recommended sanction of a ninety-day suspension and instead disbar Hall.

FACTS

The Florida Bar filed a disciplinary complaint alleging that Respondent Hall violated several of the Rules Regulating the Florida Bar. A referee was appointed. After holding hearings, the referee submitted a report to the Court in which she made the following findings and recommendations.

In late 2000, Respondent approached property owners Irving Godwin and Clara Godwin, a married couple, seeking to lease a portion of their pasture for Respondent’s horses. After negotiations, Respondent went to the Godwins’ home, bringing a pre-prepared lease agreement for a portion of the land. On January 21, 2001, the lease agreement was signed at the God-wins’ home. At that time, the parties discussed the possibility that the Godwins might sell Respondent the pasture land and the remaining property. Respondent wrote, by hand, an addendum on the lease that was then signed by the Godwins, Respondent, and witness Joseph Grant. The handwritten addendum stated:

Hall and Godwin agreed that Hall would obtain an appraisal, at her costs, by the end of March. The parties will thereafter negotiate an agreement for Hall to purchase the pasture, the mobile home park and the Godwin residence, with time frames for such purchase to be at the election of Godwin and to be specified, along with this specific price(s), and a contract to be executed by those parties subsequent to this lease. (Emphasis added.)

Two copies of the paperwork were prepared and signed by all parties. The God-wins kept the copy with the handwritten addendum and Respondent retained a fully signed copy without the addendum. Respondent maintained her notes regarding the addendum (which she wrote during the discussion) and the signed lease in a file at her home.

After Respondent received a property appraisal of $88,000, she offered to purchase the land. The Godwins refused her offer. Thereafter, the Godwins obtained an appraisal that was for a higher amount, approximately $115,000 to $139,500, which Respondent refused to pay. Nevertheless, over the next several months, Respondent continued to contact the Godwins asking them to sell the property to her. In communications with the Godwins and realtors involved in attempting to sell the property, Respondent continually insisted that she had “an agreement to purchase the property as opposed to an agreement to negotiate a price for the property.”

In 2003, two years after the parties signed the lease agreement, Respondent suddenly produced a letter that included a document titled “Lease Agreement and Agreement for Sale.” (Emphasis added.) Respondent asserted that this document was signed by the Godwins, Respondent, and witness Joseph Grant, on January 21, 2001, (the date the lease agreement was signed at the Godwins’ home). Further, Respondent had recorded this fraudulent “Lease Agreement and Agreement for Sale” in the county clerk’s office on December 12, 2002. This fraudulent document had an additional typed paragraph, which was not in the Godwins’ copy of the document. The additional paragraph stated that the parties shall thereafter “negotiate a time for conveyance of the property” to Respondent and added the words “Agreement for Sale ” to the first page of the document. (Emphasis added.)

Three forensic document examiners reviewed the Lease and Agreement for Sale document, in which the typed language was different from the handwritten language. All three examiners concluded that the signatures of Mr. and Mrs. God-win and witness Grant were forged. Only Respondent’s signature was genuine.

The State Attorney’s Office charged Respondent with two felonies — grand theft and uttering a forged instrument (the fraudulent recording of the Lease Agreement and Agreement for Sale). In August 2006, Respondent entered into a Deferred Prosecution Agreement (DPA) in which she agreed, among other things, to (1) quitclaim any interest in the Godwins’ property to give them clear title to the property within forty-eight hours of signing the agreement; (2) pay the Godwins $15,000 in restitution; (3) acknowledge in writing that the existing lease between Respondent and the Godwins was null and void; (4) vacate the pasture land and relinquish any rights she might have had under the lease; (5) execute any documents necessary to eliminate any cloud on the title of the Godwins’ property l-esulting from the lease; and (6) ensure that all sub-tenants or other persons occupying the pasture under Respondent’s lease would vacate the property. In September 2006, the criminal charges were dismissed because Respondent had complied with the requirements of the DPA.

The Bar’s disciplinary complaint charged Respondent with violating Rules Regulating the Florida Bar 3-4.3, Misconduct; 4-1.7(b), Conflict of Interest General Rule (2005); 4-1.8(a) and (b), Conflict of Interest Prohibiting Transactions; 4-1.9(b), Conflict of Interest Former Client; 4-1.16, Declining or Terminating Representation; 4-8.1, Bar Admission Disciplinary Matters; 4 — 8.4(c), Misrepresentation; and 4.8.4(d), Conduct Prejudicial to the Administration of Justice. The referee recommended that Respondent be found guilty of violating only rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee made this recommendation based on the following findings.

I find that Hall changed the title of the document from Lease to Lease and Agreement for Sale and added additional language to the lease. In these days of computers it would have been impossible for Hall to take the signed agreement back to her office and make it “look good” by typing in the language. A signed and fully executed agreement could not have had a paragraph added without either handwriting it or with the use of a typewriter. The changed Lease and Agreement for Sale was prepared again by computer with a changed title and a changed addendum and three forged signatures.
Hall admitted that she deliberately and intentionally changed the title of the document and that she intentionally changed language from the hand-written addendum to the printed language. This made a substantial change in the content of the document and Hall did this for her own benefit. She argues that since her. signature on the forged document was genuine, she must have signed it in the process of signing multiple other documents and did not realize what she had done and that some unnamed person in her office must have forged the other three signatures. This strikes the Referee as incredulous since there is no benefit for office staff to have forged signatures. Additionally, [Hall] stated that she did not have a regular assistant to do clerical work for her but that the lawyers did their own typing and in fact, she had prepared this agreement on her home computer and that she did not have a file in the office and that 90-95% of her legal work was performed at her home. The witness Joseph Grant as well as Mrs. Godwin testified that the hand-written language placed on the document that she retained was also added on to the second document retained by Mrs. Hall. Although there is no proof beyond a reasonable doubt that [Hall] actually forged the signatures, there is no doubt that her signature is genuine and this is a factor to be considered. A fraud was committed when the name of the document was changed and the language was changed from the original document.

With regard to aggravating factors, the referee found:

A troubling aspect of this case is that Hall attempted by means of numerous letters, phone calls and visits to the God-wins to achieve her goal of purchasing the property at a price she desired to pay.
Hall didn’t notify anyone of the changed terms until February 2003 and continued to insist that she had an agreement to purchase the property not merely what could be considered as a possible option to purchase.

As to mitigating factors, the referee found that Respondent, who has been -a member of The Florida Bar since 1986, has no prior disciplinary history. Also, “Hall ... is well respected in her community as an honest, hard working loyal friend involved in numerous community and church activities to the betterment of others.”

Before the referee, the Bar sought the disciplinary sanction of disbarment. The referee did not discuss any case law, but considered Florida Standard for Imposing Lawyer Sanctions 7.2. After considering Standard 7.2 and the mitigating factors, the referee recommended a ninety-day suspension. The referee awarded costs to the Bar in the amount of $20,160.71.

The Florida Bar seeks review of the referee’s recommended sanction of a ninety-day suspension, arguing that a three-year suspension or disbarment is appropriate. In her answer brief, Respondent asserts that the appropriate sanction is a suspension of no more than ninety days.

ANALYSIS

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

The referee’s report and the record demonstrate that Respondent purposefully used her knowledge of the law to harm others, for her own personal benefit. Her actions, as the referee stated at the hearing, were harassment.

After the signing of the Lease Agreement, Respondent contacted Mrs. Godwin with a price for the property. When the Godwins did not accept Respondent’s offering price, and Respondent rejected their counter-offer, Respondent began a lengthy process of harassment and abuse of the legal system. Respondent began misrepresenting to Mrs. Godwin that the original Lease Agreement was an agreement to sell the property to Respondent. Mrs. Godwin maintained that according to the advice of her own attorney, she was not required to sell Respondent the property under the Lease Agreement.

Nevertheless, Respondent continued to harass Mrs. Godwin about selling her property. Mrs. Godwin’s daughter, Cindy Godwin, testified that in June 2002, Respondent returned to the Godwins’ home and again claimed that she had an agreement to buy their property and that she wanted to discuss it with Mrs. Godwin. Cindy told Respondent that her mother was represented by counsel and her mother was not to have any conversations with Respondent about selling the property.

Despite being informed that the God-wins were represented by counsel, Respondent called their home several hours later and again asked to speak with Mrs. Godwin. Cindy, who answered the telephone, again told Respondent to speak with their lawyer. Cindy testified that Respondent threatened to sue the Godwins and tie them up in court, insinuating that they could lose their property from protracted litigation, and insisting that the Godwins had to sell the property to her. When Respondent resumed making offers for the Godwins’ property, Cindy testified that she again told Respondent to contact their lawyer or their real estate agent. The referee considered these events as aggravating factors, as Respondent attempted by means of numerous letters, phone calls, and visits to the Godwins to achieve her goal of purchasing the property at a price she desired to pay.

When Mrs. Godwin decided to list her property for sale in May 2002, she hired a realtor. The realtor stated on the real estate listing agreement that a sale was subject to a lease agreement, which would have included Respondent’s lease agreement. Nevertheless, Respondent continued her misconduct — by seeking to drive away any possible contenders for the property. Respondent wrote a letter to the realtor, dated June 19, 2002, misrepresenting to him that she had a contract with the Godwins to purchase their property. The realtor testified that Respondent spoke with him on the phone, stating that the Lease Agreement was actually an agreement for her to purchase the Godwins’ property and that he could not sell the property. He also testified that Respondent threatened to report him to the real estate commission and have his license revoked if he sold the Godwins’ property. In light of these events, the realtor was directed by his realty agency to withdraw the Godwins’ real estate listing on June 21, 2002.

On January 20, 2003, the Godwins’ attorney wrote Respondent advising her that the Godwins had no obligation under the Lease Agreement to sell her the property. On February 21, 2003, Respondent wrote to the Godwins’ attorney, again misrepresenting that the Godwins had agreed to sell her the property. At that point, Respondent provided for the first time a copy of the fraudulent Lease Agreement and Agreement for Sale that she had previously recorded in December 2002 at the clerk’s office. Thereafter, in a letter dated June 11, 2003, the Godwins’ attorney requested that Respondent execute a quitclaim deed to remove the cloud from the Godwins’ title and return it to his office within two weeks. Respondent did not comply with this request for over three years.

In fact, Respondent did not properly address matters until after she was criminally charged with forgery and uttering a forged instrument. At that point, she was required to sign a quitclaim deed as part of her DPA. She finally complied with the request to execute a quitclaim deed on August 10, 2006, which was three years after the Godwins’ attorney asked her to remove the cloud from the title. During that entire period of time, the public was misled by the fraudulent recording in the clerk’s office, and the official recording lent credence to Respondent’s misrepresentations. By her deliberate actions, Respondent put a cloud on the title of the Godwins’ property and prevented them from selling it.

Respondent’s brazen misrepresentations and continual harassment distinguish this case from other forgery cases. Although the referee found only one rule violation, Respondent’s misconduct is egregious. Her misrepresentations caused the Godwins to lose two buyers for their property. Respondent’s threats to the Godwin’s realtor caused him to withdraw the Godwins real estate listing. Due to Respondent’s continued harassment, the Godwins were forced to hire an attorney to defend themselves. Even though Respondent was not acting in a formal attorney-client relationship, she was still a member of The Florida Bar and bound by its ethical rules. Respondent misused her status as an attorney to harm the God-wins: (1) by recording the fraudulent document in the clerk’s office, in order to tie up the Godwins’ property; (2) by asserting that the Godwins and their realtor would suffer for not complying with her legal claims; and (3) by forcing the God-wins to hire counsel to resolve the legal problems that Respondent created. Even after being informed that the Godwins had hired counsel, Respondent continued to directly harass them. This Court does not look favorably on those who use their standing as an officer of the court to deliberately harm others — especially when they intentionally hurt members of the public for their own personal gain. Further, in the instant case, Mr. and Mrs. Godwin were seniors, and Mr. Godwin was suffering from Alzheimer’s disease. Respondent was preying upon this vulnerable couple.

Respondent put pressure on the God-wins by sending letters, making phone calls, and visiting them, in an effort to achieve her goal of purchasing the property. Further, Respondent continuously misrepresented to third parties that she had a contract for sale, when she knew, or should have known as an attorney, that she had no contractual right to purchase the Godwins’ property. Based on this evidence, the referee orally pronounced from the bench that Respondent “violated the rules of the Bar by harassing lots of people.”

Further, Respondent deliberately and intentionally engaged in felonious conduct by recording the fraudulent Lease Agreement and Agreement for Sale in the county clerk’s office. As a lawyer, Respondent knew or should have known that the recording of this instrument in the clerk’s office was a felony (uttering a forged document). By the terms of the original agreed-upon paragraph, Respondent should have known that she did not have an agreement to purchase the land. Nevertheless, Respondent recorded the fraudulent document in the clerk’s office to misrepresent to the public at large that she had a right to purchase the Godwins’ property. By recording the fraudulent document, Respondent placed a cloud on the title of the property she desired, which impeded the Godwins from selling or transferring the property to anyone else. It is apparent that Respondent committed these misdeeds for her own benefit, in an effort to secure the property.

As for the fraudulent document, Respondent admitted that she deliberately changed the title of the document. In addition, the referee found that she intentionally changed language from the handwritten addendum to the typed language. Respondent’s alterations substantially changed the meaning of the legal document. Despite the evidence, in an attempt to avoid guilt, Respondent claims that some unknown person in her office must have forged the other three signatures. Thus, she asserts that she did not create the forgery. The referee found this testimony unbelievable. Additionally, Respondent testified that she did not have a regular assistant to do clerical work for her— the lawyers in her firm did their own typing. In fact, Respondent prepared this agreement on her home computer, she did not even have a file in the firm’s office, and she stated that 90-95% of her legal work was performed at home. The facts indicate that no one, except Respondent, had the motive or opportunity to forge the Godwins’ and Grant’s signatures on the fraudulent Lease Agreement and Agreement for Sale. Yet Respondent insists on her blatant and shameful efforts to blame some unidentified firm employee for forging the three signatures. See Fla. Bar v. Massari, 832 So.2d 701, 703 (Fla.2002) (where respondent produced a forged document allegedly signed by his client and no direct proof was presented as to who forged the document, the referee found that respondent was “the only person who had motive and reason” for creating the forgery). The forensic document examiners stated that of the four signatures, the only authentic one is Respondent’s signature. Further, the four signatures were made with the same pen. See Fla. Bar v. Cohen, 908 So.2d 405, 411 (Fla.2005) (approving “the referee’s use of common sense and logic in making his factual findings based on the evidence presented,” as respondent’s version of events “strains credulity”). The instant referee found that the document Respondent recorded was fraudulent. Like the respondents in Mas-sari and Cohen, Respondent’s assertion belies the evidence.

Next, Respondent employed numerous tactics to prevent the Godwins from selling their property to anyone else, which included abusing the legal system by recording the forged document and then basing her claims to the property on that fraudulent document. Thus, even though these matters were the personal business affairs of Respondent, and not professional matters involving clients, her conduct establishes a pattern of “flagrant and deliberate disregard for the very laws which [Respondent] took an oath to uphold.” Fla. Bar v. Lord, 433 So.2d 983, 986 (Fla.1983). Further, Respondent’s actions “evade[d] the proper functioning of the legal system[, which] has been found to constitute clearly dishonest conduct that adversely reflects on a lawyer’s fitness to practice law.” Fla. Bar v. Cohen, 908 So.2d 405, 411 (Fla.2005). The Court expects “members of The Florida Bar to conduct their personal business affairs with honesty and in accordance with the law.” Fla. Bar v. Baker, 810 So.2d 876, 882 (Fla.2002); see also Fla. Bar v. Hosner, 520 So.2d 567, 568 (Fla.1988) (“[Lawyers are necessarily held to a higher standard of conduct in business dealings than are nonlawyers.”). Respondent’s flagrant abuse of the law demonstrates a serious character flaw and merits a severe sanction.

The referee recommended that Respondent be found guilty of a single violation of rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent emphasizes that she violated only one rule, by her personal conduct which was unconnected to the practice of law. However, her misconduct was not one isolated incident of fraudulently changing the title and language in a written legal agreement. She engaged in ongoing, continuous misrepresentations for several years. From 2001 until August 2006, when Respondent was required to quitclaim the Godwins’ property back to them pursuant to the DPA, Respondent continued to misrepresent to the Godwins, the public at large, real estate agents, and the Godwins’ attorney that she had a verifiable agreement to purchase the Godwins’ property. At no point in these events has Respondent been contrite.

Further, with regard to violations of rule 4-8.4(c), the Court has clearly stated that “basic, fundamental dishonesty ... is a serious flaw, which cannot be tolerated,” Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002), because dishonesty and a lack of candor “cannot be tolerated by a profession that relies on the truthfulness of its members.” Id. (quoting Fla. Bar v. Kornes, 752 So.2d 586, 591 (Fla.2000)). In the instant case, the referee found that Respondent deliberately and intentionally changed the title of the “Lease Agreement” to “Lease Agreement and Agreement for Sale.” In addition, the referee specifically found that Respondent made the “substantial change to the content of the document ... for her own benefit.” Respondent has demonstrated fundamental dishonesty throughout these events.

Although Respondent was not found guilty of criminal acts due to the DPA, she engaged in dishonest and fraudulent conduct in her personal affairs, which demonstrates that she failed to maintain personal integrity. Standard 5.1, “Failure to Maintain Personal Integrity,” and its subdivisions apply to this case. Standard 5.1 provides:

Absent aggravating or mitigating circumstances, and upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving dishonesty, fraud, deceit, or misrepresentation. ...

(Emphasis added.) Standard 5.11 provides that disbarment is appropriate when:

b. a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or
f. a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyers fitness to practice.

Thus, pursuant to Standard 5.11, disbarment is an appropriate sanction in this case.

Case law also supports disbarment. In Florida Bar v. Gross, 896 So.2d 742, 746-47 (Fla.2005), the Court disbarred a respondent who had misappropriated from a client trust account on numerous occasions, failed to defend a client in a lawsuit, and repeatedly engaged in forgery. While the Court noted that disbarment is the appropriate sanction for misuse of client funds, the Court also stated:

Additionally, this case also involves other conduct that is extremely troubling, including the forgery of a judge’s signature on two orders, the forgery of a client’s signature on a guilty plea, and the forgery of a client’s signature on a check so Gross could deposit the funds of the check and use them for his own personal means. These acts alone can also constitute independent grounds for disbarment.

Id. at 746-47 (emphasis added). Further, in Florida Bar v. Kickliter, 559 So.2d 1123, 1124 (Fla.1990), the Court held that even with substantial mitigation, disbarment was warranted for a respondent who had forged his client’s signature on a will (the client had died without signing the will), and then submitted the forged document to a court. Kickliter was found guilty of violating several Bar rules. Significantly, Kickliter, like the present Respondent, violated rule 4-8.4(c).

Next, Florida Bar v. Solomon, 589 So.2d 286, 287 (Fla.1991), cited Kickliter for the principle that “forgery can result in disbarment.” Along with other misconduct, Solomon forged his deceased mother’s signature on a homestead tax exemption application and forged both of his deceased parents’ signatures on a homestead application the following year. Solomon was disbarred.

In Florida Bar v. Cramer, 678 So.2d 1278 (Fla.1996), Cramer forged another person’s signature on forms to lease computer and office equipment as part of a fraudulent scheme because Cramer was unable to obtain financing for the equipment. The Court stated:

Cramer perpetrated a fraud upon a financial institution. We have in the past recognized that a felony conviction for similar misconduct warranted disbarment. See Florida Bar v. Forbes, 596 So.2d 1051 (Fla.1992). Although Cram-er had not been criminally convicted for his actions at the time of this grievance proceeding, we conclude that his total conduct in this incident coupled with his prior disciplinary record evince a pattern of misconduct warranting disbarment.

Id. at 1282. The Court disbarred Cram-er for his misconduct, including the forgery, which he committed in his personal business dealings. See also Fla. Bar v. Gold, 203 So.2d 324 (Fla.1967) (disbarring a respondent who engaged in forgery and recorded the forgery). Case law demonstrates that attorneys who engage in forgery can receive severe sanctions.

Accordingly, we find that the referee’s recommendation of a ninety-day suspension is unsupported. After considering the factual findings, the totality of misconduct, case law, and the Standards, we conclude that disbarment is the appropriate sanction.

CONCLUSION

Accordingly, we approve the referee’s findings of fact, recommendations of guilt, and award of costs. We disapprove the referee’s reliance on Standard 7.0 and instead apply Standard 5.0. Further, we disapprove the referee’s recommendation of a ninety-day suspension. Sherry Grant Hall is hereby disbarred from the practice of law in Florida, effective, nunc pro tunc, October 9, 2009. As Respondent is currently suspended, it is unnecessary to provide her with thirty days to close out her practice to protect the interests of existing clients.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Sherry Grant Hall in the amount of $20,160.71, for which sum let execution issue.

It is so ordered.

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

PARIENTE, J., concurs in part and dissents in part with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

concurring in part and dissenting in part.

In this case, the majority has rejected the recommendation of the referee to impose a ninety-day suspension and has instead disbarred Hall. I understand that this Court has demonstrated in no uncertain terms that lawyer misconduct will not be tolerated and that harsher sanctions are warranted for many forms of lawyer misconduct. I agree that forgeries by a lawyer should not be tolerated and warrant substantial discipline.

However, while Hall’s misconduct requires a rehabilitative suspension, I disagree that the extreme sanction of disbarment is warranted under the facts of this case and our prior case law. Rather, I would impose a three-year suspension as urged by The Florida Bar — a sanction that is extremely serious but more in line with our precedent.

As is evident in this case, there was no misappropriation of client funds and no attorney-client relationship. In Hall’s pri- or twenty-three years as a lawyer, there was no blemish on her record — no prior misconduct of any sort. As found by the referee, Hall is “well respected in her community as an honest, hard working loyal friend involved in numerous community and church activities to the betterment of others.”

None of these circumstances excuse the misconduct, but the mitigation should be considered in determining the appropriate sanction. Clearly, Hall lost all perspective as a result of her desire to purchase pasture land for her horses. She illegally forged the owners’ signature on a document entitled “Lease Agreement and Agreement for Sale.” As a result of these actions, the State Attorney’s Office charged her with two felonies. Ultimately, Hall entered into a Deferred Prosecution Agreement and thereafter all charges were dismissed. The referee, who is an experienced circuit court judge, had the opportunity to assess the demeanor of Hall and the witnesses and specifically determined that disbarment was not the appropriate sanction.

This case is in contrast to other recent cases where we have disbarred attorneys who have engaged in fraud, misrepresentation, or deceit. The majority relies on Florida Bar v. Gross, 896 So.2d 742, 745-47 (Fla.2005), wherein we disbarred an attorney who committed numerous acts of misconduct, most of which we noted would be sufficient to justify disbarment, including a dozen client trust account misappropriations, failure to defend a client in a lawsuit, and numerous forgeries. Most troubling, the forgeries included a judge’s signature on two orders, the forgery of a client’s signature on a written plea of guilt, and, finally, the forgery of a client’s signature on a check so the respondent could deposit the check and use the funds for his own personal means. Id. at 746. This is in contrast to the single instance of forgery involved here, which was unrelated to the practice of law and resulted in no client harm. Thus, the majority’s reliance on Gross as case law supporting disbarment is misplaced.

The majority’s reliance on Florida Bar v. Kickliter, 559 So.2d 1123 (Fla.1990), is also misplaced. As in Gross, the misconduct in Kickliter was related to the attorney’s practice of law. 559 So.2d at 1123. There, the attorney forged his client’s signature on a will (the client had died the day before without signing the will). Id. He then submitted the forged will for probate, committing fraud on the court. Id. at 1123-24. This Court later emphasized in Florida Bar v. Baker, 810 So.2d 876, 881 (Fla.2002), that the attorney in Kickli-ter had committed fraud on the court and forged the will in connection with his law practice.

In Florida Bar v. Solomon, 589 So.2d 286, 286 (Fla.1991), we disbarred an attorney who had a substantial history of prior discipline, including a six-month suspension for a conviction of failing to file a tax return, two private reprimands, suspension from practice before a federal court, and a three-year suspension for failing to diligently prosecute matters entrusted to him. While still suspended (Solomon did not seek reinstatement from either of his suspensions), he then knowingly wrote insufficient checks on business bank, accounts, kited checks among his own bank accounts, deposited in his own account checks belonging to clients of an attorney for whom he worked, forged his deceased mother’s signature on a homestead tax exemption application, and forged both of his deceased parents’ signatures on a homestead application the following year. Id. Unlike the attorney in Solomon, Hall does not have an extensive history of misconduct and prior discipline.

Likewise, this case is distinguishable from Florida Bar v. Cramer, 678 So.2d 1278, 1281-82 (Fla.1996), which also involved an attorney with a history of prior discipline. Prior to the misconduct of perpetrating fraud on a financial institution, Cramer had received a private reprimand and a ninety-day suspension for misappropriation of client funds and misusing his trust account in an attempt to avoid an Internal Revenue Service levy. Id. at 1281 n. 2. This Court concluded that “his total conduct in this incident coupled with his prior disciplinary record evince a pattern of misconduct warranting disbarment.” Id. at 1282.

Hall’s conduct is entirely distinguishable from the conduct of the attorneys in Gross, Kickliter, Solomon, and Cramer. Unquestionably, forgeries can result in disbarment, but the imposition of the sanction depends on the circumstances. In Baker, 810 So.2d at 881, we acknowledged that although lawyers may certainly be disciplined for conduct unrelated to the practice of law, “misconduct not connected with the practice of law is to be evaluated differently and may warrant less severe sanctions than misconduct committed in the course of the practice of law.” Baker, who had no prior disciplinary history, forged his ex-wife’s name to legal documents relating to sale of real property that he owned jointly with her. Id. at 878. These documents were used in the closing, and Baker negotiated a check obtained by his forgery. Id. The referee cited Kickliter in support of his recommendation of disbarment. Id. at 881. In distinguishing the case from Kickliter, this Court focused on the facts that while Baker had forged several documents, he had not committed a fraud on the court and his misconduct was not related to his law practice. Id. Baker received a rehabilitative suspension of ninety-one days. Id. at 882 (“While we emphasize that Baker’s violations are serious, in that his conduct was dishonest and unlawful, we find the ultimate sanction of disbarment is not warranted.”). Clearly, Baker is more analogous to this case than the cases cited by the majority.

A three-year suspension is more in line with our precedent than disbarment, especially considering Hall’s lack of prior disciplinary history. See, e.g., Fla. Bar v. Hagendorf, 921 So.2d 611 (Fla.2006) (imposing two-year suspension for filing a frivolous action to quiet title to a building that the attorney did not own and making misrepresentations to the court in order to obtain a default judgment in the action); Fla. Bar v. Klausner, 721 So.2d 720 (Fla.1998) (imposing a three-year suspension for scheming to defraud, two counts of forgery, uttering a forged instrument, perjury when not in an official proceeding, and making a false official statement, where mitigation included remorse, inexperience, and lack of prior bar discipline); Fla. Bar v. Rosen, 608 So.2d 794 (Fla.1992) (imposing two-year suspension for issuing numerous trust account checks that were subsequently dishonored, one of which was determined to be a forgery, and for failing to produce trust account records; sanction was deemed appropriate because attorney had been previously suspended for grand theft and breaking and entering).

For all these reasons, I respectfully concur in part and dissent in part.

QUINCE, J., concurs.

      . After the referee’s report was submitted, the Court issued an order scheduling oral argument and directing the parties to address why disbarment is not the appropriate sanction. In addition, the Court issued a separate order suspending Respondent from the practice of law "until further order of this Court, effective thirty days from the date of this order so that respondent can close out her practice and protect the interests of existing clients.” Thereafter, Respondent tiled a motion for rehearing regarding the suspension, which was denied.

      . Respondent stated that she is not related to Joseph Grant.

      . Respondent knew that Mr. Godwin had been diagnosed with Alzheimer’s disease. Thus, Respondent usually discussed property and business issues with Mrs. Godwin.

      . The referee stated, without elaboration, that "the other violations were either withdrawn or inapplicable to this case.”

      . Standard 7.0, "Violations of Other Duties Owed as a Professional,” applies to "cases involving false or misleading communication about the lawyer or the lawyer’s services, improper communication of fields of practice, improper solicitation of professional employment from a prospective client, [and] unreasonable or improper fees.” Standard 7.2 states that "[suspension is 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.” The referee found Respondent was engaged in a personal transaction that was unrelated to her legal practice. Respondent did not offer her professional services to the Godwins and no legal fees were involved. Thus, the misconduct was in her personal capacity, not in her professional capacity. Accordingly, the referee's reliance on Standard 7.2 is misplaced. We disapprove the referee’s reliance on Standard 7.2.

      . Neither party has challenged the referee's findings of fact, recommendations as to guilt, or award of costs. Accordingly, we approve the referee's findings, recommendations as to guilt, and award of costs without discussion.

      . The referee stated on the record that Hall had "violated the rules of the Bar by harassing lots of people, writing these voluminous letters talking about how she was — she was somehow being harmed by Mr. and Mrs. God-win.” The referee specifically referred to the incident involving Cindy Godwin, stating that "after [Respondent] was told to cease and desist and to leave them alone. She called back and asked for Mrs. Godwin. That is harassment.”

      . The Florida Bar may bring a disciplinary action against a respondent regardless of “whether the alleged misconduct constitutes a felony or misdemeanor” and "whether the respondent has been tried, acquitted, or convicted in a court for the alleged criminal offense.” See R. Regulating Fla. Bar 3-4.4, “Criminal misconduct.”


author: PER CURIAM.

text:
    Dexter HOWARD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3095.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2010.
    Dexter Howard, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

This is Dexter Howard’s third petition for habeas corpus for a belated appeal of a July 2009 order summarily denying his rule 3.850 motion, and his fifth postconviction proceeding in this Court, challenging his 2003 conviction.

We previously issued an order dismissing Howard’s petition for belated appeal and issued an order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), directing him to show cause why he should not be barred from filing further pro se challenges to his convictions. Having considered his response and finding it to be unpersuasive, we now prohibit Howard from filing with this Court any more pro se pleadings concerning Orange County Circuit Court Case No. 2003-CF-12076. See Pettway v. McNeil, 987 So.2d 20, 23 (Fla.2008) (holding that rejecting future pleadings, motions, or other filings relating to convictions and sentences is appropriate sanction “in order to preserve the right of access for all litigants and promote the interests of justice”).

The Clerk of this Court is directed not to accept any further pro se filings from Howard concerning this case. Any more pleadings or papers regarding this case will be summarily rejected by the Clerk, unless signed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”). The Clerk of this Court is further directed to forward a certified copy of this opinion to the appropriate Department of Corrections institution or facility pursuant to section 944.279(1), Florida Statutes (2010), for consideration of disciplinary procedures.

DISMISSED; FUTURE PRO SE FILINGS PROHIBITED; CERTIFIED COPY FORWARDED TO DEPARTMENT OF CORRECTIONS.

GRIFFIN, PALMER and ORFINGER, JJ., concur.


author: ORFINGER, J.

text:
    Andrew PRESTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3308.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2010.
    Andrew J. Preston, Zephyrhills, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   ORFINGER, J.

Petitioner, Andrew Preston, seeks a belated appeal of his sentence entered at his July 30, 2010, resentencing hearing. See Fla. R.App. P. 9.141(c).

Petitioner claims that he was not represented at the hearing, and that as a result of this lack of representation, he was deprived of the advice of counsel regarding his right to appeal. Because the State does not dispute Petitioner’s assertion that counsel did not appear at the resentencing hearing, we grant the instant petition. See Rosado v. State, 864 So.2d 533, 534 (Fla. 5th DCA 2004) (“After reviewing the petition, and the state’s response, we find the state has no ‘good faith basis’ to request an evidentiary hearing.”). Furthermore, a re-sentencing hearing is a critical stage in criminal proceedings at which Petitioner has the right to assistance of counsel. See Jones v. State, 35 So.3d 69 (Fla. 1st DCA 2010); Davis v. State, 800 So.2d 336 (Fla. 4th DCA 2001). Because counsel was not present, we elect to grant Petitioner a belated appeal, summarily reverse the trial court’s sentencing order, and remand the matter for a new sentencing hearing. Petitioner shall be represented by counsel at resentencing. Under the circumstances of this case, further review of Petitioner’s resentencing order would constitute an unnecessary waste of judicial resources.

PETITION GRANTED; REVERSED AND REMANDED.

GRIFFIN and EVANDER, JJ., concur.


text:
    Tobi ROWE, a/k/a, Tobi A. Rowe, Petitioner, v. DUETCHE BANK NATIONAL TRUST COMPANY as indenture trustee for American Home Mortgage Investment Trust 2005-2, Mortgage-Backed Notes, Series 2005-2, William Hughes Rowe, a/k/a, William H. Rowe, III; Unknown Spouse of William Hughes Rowe, a/k/a, William H. Rowe, III, Unknown Spouse of Tobi Rowe, a/k/a, Tobi A. Rowe; Beazer Mortgage Corporation; Beazer Homes, Corporation; Shawkey J. Moore; Deerwood Place I Condominium Association, Inc.; Deerwood Place Master Association, Inc.; Deerwood Lake Property Owners Association; Unknown Tenant # 1; Unknown Tenant # 2, Respondents.
    No. 1D10-5660.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.
    Warren K. Anderson, Jr., and Andrew D. Miller of Anderson, Howell & Ravis, P.A., Jacksonville, for Petitioner.
    Ezra Scrivanich of Ben-Ezra & Katz, P.A., Fort Lauderdale, for Respondents.
   PER CURIAM.

Contending that the trial court failed to rule on her properly served motion for disqualification within 30 days as required by Florida Rule of Judicial Administration 2.330(j), petitioner seeks mandamus relief in the form of an order compelling the lower tribunal clerk to reassign her case. Although the parties have stipulated to granting the relief sought, petitioner fails to show that, as contemplated by the rule, she has sought an order from the trial court directing the clerk to reassign the case. Making such a demand is required in order to establish an entitlement to this court’s intervention by writ of mandamus. See KKP Holdings, LLC v. Russell, 1 So.3d 1287 (Fla. 1st DCA 2009); see also Harrison v. Johnson, 934 So.2d 563 (Fla. 1st DCA 2006) (denying mandamus relief where petitioner had failed to bring motion for reassignment before the trial court in order to obtain a ruling). Accordingly, the petition for writ of mandamus is DENIED as premature.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Jean Moses BAPTISTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3034.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Jean Moses Baptiste, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Bermudez v. State, 603 So.2d 657 (Fla. 3d DCA 1992); Flores v. State, — So.3d -, 2010 WL 2882465 (Fla. 4th DCA 2010).


text:
    Sharmarkco EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-75.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 2010.
    Rehearing Denied Dec. 29, 2010.
    Terry P. Roberts of Law Offices of Terry P. Roberts, Tallahassee, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appel-lee.
   On Motion for Rehearing

PER CURIAM.

The defendant has filed a motion for rehearing. He argues this court may have overlooked two remaining issues raised in his initial brief concerning the motion for judgment of acquittal and the defendant’s enhanced sentence. This court has considered those issues and finds them moot in light of our reversal and remand for a new trial where those issues can be addressed first by the trial court. We therefore deny the motion for rehearing.

FARMER, MAY and GERBER, JJ., concur.


text:
    Avery K. TOLBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1162.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, for appellee.
    Before RAMIREZ, C.J., and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Diaz v. Sec’y for the Dep’t of Corr., 313 Fed.Appx. 262 (11th Cir.2009).


author: WELLS, Judge.

text:
    Ryan NEWBERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3385.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   WELLS, Judge.

We affirm Ryan Newberry’s convictions for burglary of an unoccupied conveyance and grand theft third degree finding no error in the trial court’s denial of his motion for judgment of acquittal. However, we decline, without prejudice, to address Newberry’s ineffective assistance of counsel claim regarding display of his arms during trial to establish that he had no tattoos. See Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987) (“Generally, ineffective assistance of trial counsel will not be cognizable on direct appeal ... [although t]here are rare exceptions where ... the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.”); Rios v. State, 730 So.2d 831, 832 (Fla. 3d DCA 1999) (acknowledging “that ineffective assistance of counsel is ordinarily not cognizable on direct appeal” and “the limited exception to this general rule, [where] both the deficient performance of counsel and the prejudice to the defendant are apparent on the face of the record”).

Affirmed.


text:
    D.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-560.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. C.E.L. v. State, 24 So.3d 1181 (Fla.2009); State v. Zaldivar, 34 So.3d 76 (Fla. 3d DCA 2010).


text:
    Kerick VAN TEAMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5531.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2010.
    Patrece C. Cashwell, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the judgment and sentence rendered on August 26, 2010, in Escambia County Circuit Court case number 1009-CF-001565, is granted. Upon issuance of mandate, 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). If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent him on appeal.

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


text:
    SEDGWICK CMS, Petitioner, v. DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Respondent.
    No. 1D10-5497.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2010.
    Mark S. Spangler of the Law Offices of Mark S. Spangler, P.A., Maitland, for Petitioner.
    David D. Hershel, Department of Financial Services, Division of Legal Services, Tallahassee, for Respondent.
   PER CURIAM.

Because the agency has issued an amended final order in the proceedings below, the petition for writ of mandamus is denied as moot. The agency’s order constitutes a final disposition of the proceedings below, and petitioner’s complaints concerning the adequacy and correctness of that order are matters properly addressed on plenary appeal.

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


text:
    Ronald STRICKLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4083.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2010.
    James T. Miller, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The trial court is directed to enter an order disposing of petitioner’s motion for postconviction relief within 30 days or, if warranted, enter an order scheduling an evidentiary hearing on the motion. Because we are confident the trial court will comply with this directive, we withhold formal issuance of the writ at this time.

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


text:
    Kathleen DORAN, Former Wife, Appellant, v. Gerard M. DORAN, Jr., Former Husband, Appellee.
    No. 1D10-2697.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2010.
    Clay B. Adkinson of Adkinson Law Firm, LLC, DeFuniak Springs, for Appellant.
    Gerard M. Doran Jr., pro se, Appellee.
   PER CURIAM.

Appellant, Ms. Kathleen Doran, appeals an order of the trial court granting time-sharing of her minor children to the children’s father, Appellee, Mr. Gerard Doran. Ms. Doran asserts that the trial court erred by not allowing the presentation of evidence regarding why modification of the time-sharing schedule was not in the minors’ best interests. We agree and reverse for the reasons set forth below.

A time-sharing schedule may not be modified without showing a “substantial, material, and unanticipated change in the circumstances and a determination that it is in the best interests of the child.” § 61.13(3), Fla. Stat. (2010). Evidence of child abuse is relevant to the best interests determination. § 61.13(3)(m), Fla. Stat. Here, Ms. Doran sought to offer evidence of abuse of the children by Mr. Doran, namely: (1) testimony from Investigator Adkinson regarding the children’s allegation of abuse by their father; (2) two Department of Children and Families investigators regarding the alleged abuse; (3) testimony from the children or an in camera hearing with the children; and (4) Investigator Procino’s report. The trial court did not permit Ms. Doran to present this evidence which clearly would be relevant to a determination whether modification of the time-sharing schedule was in the best interests of the minor children. This was error. Accordingly, we reverse and remand.

Reversed and Remanded.

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


text:
    U.S. BANK, N.A., Appellant, v. Adelaine TORRES, Appellee.
    No. 3D10-3386.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2010.

      Rumberger, Kirk & Caldwell, and Scott M. Sarason and Manu L. Davidson, Miami; Suzanne Barto Hill and Joshua R. Brown, Orlando, for appellant.
    Robert Flavell, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and EMAS, JJ.
   PER CURIAM.

Appellant, U.S. Bank National Association, as trustee for J.P. Morgan Mortgage Acquisition Trust 2006-CH2, Asset Backed Pass-Through Certificates, Series 2006-CH2, moves this Court for entry of an Order staying proceedings regarding the trial court’s December 9, 2010 Order striking U.S. Bank’s pleadings, dismissing U.S. Bank’s case with prejudice, and requiring the appearance of U.S. Bank and its counsel to surrender the Note on January 8, 2011. Appellee Adelaine Torres cross moves to dismiss U.S. Bank’s appeal.

We agree with Torres that the appeal is premature and as such, we grant Torres’ motion to dismiss U.S. Bank’s appeal. In addition, we deny U.S. Bank’s motion for stay pending review, with the understanding that once the trial court rules at the hearing on January 8, 2011, U.S. Bank will have the opportunity to appeal the trial court’s decision if it chooses to do so and seek a stay from the trial court’s order at that point.


author: CASANUEVA, Judge.

text:
    Kenneth E. LAMKIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5830.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2008.
    Rehearing Denied April 6, 2009.
   CASANUEVA, Judge.

Charged originally with capital sexual battery, in May 2005 Kenneth Lamkin entered a negotiated plea to attempted sexual battery under which he was sentenced to sixteen years’ imprisonment followed by ten years of sex offender probation. His direct appeal was affirmed without a written opinion. Lamkin v. State, 918 So.2d 301 (Fla. 2d DCA 2005) (table decision). Subsequently, Lamkin filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 alleging eight claims of ineffective assistance of counsel. The postconviction court summarily denied all eight claims. We affirm as to seven of the claims without further discussion but reverse and remand as to claim 3 to allow Lamkin an opportunity to amend his motion to state a facially sufficient claim.

In claim 3, Lamkin alleges in very general terms that his plea was involuntary because counsel misadvised him that he had no viable defense. Because Lamkin failed to identify what defense or defenses he would have raised at trial, the postcon-viction court denied the claim on the ground of facial insufficiency. The court was correct in noting that such a claim is facially insufficient. See Spera v. State, 923 So.2d 543 (Fla. 4th DCA 2006), quashed on other grounds, 971 So.2d 754 (Fla.2007). Shortly before the date of the postconviction court’s order, however, the Florida Supreme Court held that “when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.” Spera, 971 So.2d at 761.

Following Spera, we reverse and remand as to claim 3 to allow Lamkin to file an amended claim — if he “can do so in good faith,” id. at 762 — in which he identifies a defense or defenses that he believes trial counsel should have raised. Lamkin should be aware that, to show prejudice, it is his burden to demonstrate a reasonable probability that, but for counsel’s errors, he would have insisted on going to trial. See Gilbert v. State, 913 So.2d 84, 86 (Fla. 2d DCA 2005) (citing Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)); see also Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla.2004).

Affirmed in part, reversed in part, and remanded.

KELLY and WALLACE, JJ., Concur.

      . We reject the court’s other reason for denying the claim: that at the plea colloquy Lam-kin was made aware of what the State would have to prove and that by pleading guilty, he accepted the factual basis set forth by the State and thus confessed to the offense. See Major v. State, 814 So.2d 424, 427 (Fla.2002) (noting that a plea is "in effect, a confession in open court as to the facts alleged” (citation and internal quotation marks omitted)). Even if a guilty plea can be considered tantamount to a confession, it is always the defendant’s right — and perhaps especially so when a defense is available — not to confess but instead go to trial and force the State to meet its burden. See U.S. Const, amend. VI; see also, e.g., Harris v. United States, 536 U.S. 545, 549, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (“In all criminal prosecutions, state and federal, the accused shall enjoy the right to trial by an impartial jury at which the government must prove each element beyond a reasonable doubt.” (citations, internal quotation marks, and ellipses omitted)).


author: KLEIN, J.

text:
    Clayton Eugene SCHAUER, Appellant, v. MORSE OPERATIONS, INC., d/b/a Ed Morse Chevrolet and General Motors Acceptance Corporation, Appellees.
    Nos. 4D06-4902, 4D07-1354, 4D07-4540.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 2009.
    Rehearing Denied April 16, 2009.

      Rebecca J. Covey of Rebecca J. Covey, P.A., Fort Lauderdale, and Diane H. Tutt of Diane H. Tutt, P.A., Davie, for appellant.
    Mark Atlas of Goldsmith & Atlas, P.A., Miami and Nancy W. Gregoire of Kirschb-aum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for appellee Morse Operations, Inc.
    Jack R. Reiter, Charles M. Tatelbaum and Jason S. Miller of Adorno & Yoss LLP, Miami, for appellee General Motors Acceptance Corp.
    Timothy Carl Blake of Timothy Carl Blake, P.A., Miami, for Amicus Curiae National Association of Consumer Advocates (NACA).
   KLEIN, J.

Appellant plaintiff brought this action for fraud and statutory violations against Morse, a Chevrolet dealer, and GMAC, which financed the sale of a car. We reverse the summary judgment against plaintiff on his claim for fraud against Morse, reverse a judgment for damages on one of plaintiffs statutory claims based on harassment by the creditor, GMAC, and address additional claims.

Plaintiff alleged that, when his stepdaughter was unable to obtain credit to purchase a car, Morse induced him to sign a document to help her, but fraudulently-represented to him that the document would not obligate him on the loan. In addition, the plaintiff alleged that Morse charged him premiums for insurance it never obtained. We previously addressed some of these issues in Schauer v. General Motors Acceptance Corp., 819 So.2d 809 (Fla. 4th DCA 2002), in which we reversed an order dismissing plaintiffs complaint for failure to state a cause of action.

In the pi'ior appeal we held that the complaint stated causes of action against Morse for fraud, as well as under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), section 501.203(8), Florida Statutes, and against both defendants under the Florida Consumer Collection Practices Act (FCCPA), section 559.72, Florida Statutes. On remand, the trial court entered summary judgments on most of plaintiffs claims; however, the claim that GMAC made harassing telephone calls which violated the FCCPA was tried, and a jury awarded plaintiff $5,500 in damages. GMAC has cross-appealed the judgment entered on that verdict, which we address first.

The claim against GMAC under the FCCPA was based on section 559.72(7), Florida Statutes 1999, which provides:

In collecting consumer debts, no person shall:

(7) Willfully communicate with the debt- or or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family[.]

According to the parties, there were at most seven telephone calls over a six-month period from GMAC, attempting to collect the loan which was in default. Some of the calls, which were made during the day when plaintiff was at work, were answered by his wife, who advised GMAC to call back in the evening. The worst that can be said about any of the calls was one in which GMAC told plaintiff he would be in “big trouble,” if he did not repay the loan. Once plaintiff informed GMAC he had a lawyer, GMAC made no further calls.

GMAC did not move for a directed verdict at trial, but argues that the trial court erred in not granting its motion for summary judgment. Both sides rely on Story v. J.M. Fields, Inc., 343 So.2d 675 (Fla. 1st DCA 1977), a case brought under the FCCPA in which there were more than 100 telephone calls during a five-month period. The court succinctly stated the facts as follows:

Story considered himself aggrieved by Fields’ failure to repair a Fields brand air conditioner bought 15 months earlier. Story therefore advised Fields’ credit manager, Allen, that he intended not to make payments on other merchandise Story had purchased on credit until the air conditioner was repaired. Story’s evidence, which Allen substantially contradicted, tended to prove that Allen then telephoned Story at his home, at the residences of other members of his family, and at his business places to demand payment of Story’s debt. According to Story’s evidence, which we must accept in determining the propriety of a directed verdict, the telephone calls came almost daily, sometimes two or three times daily, and amounted to at least 100 calls over a period of five months. Story testified that he returned some but by no means all of Allen’s calls, spoke with him at least once a week, and finally told Allen to stop bothering him and to take the matter to court, for he did not intend to pay.

In addressing the statute, the court stated:

Proof of numerous calls does not make a jury issue on liability if all must agree the creditor called only to inform or remind the debtor of the debt, to determine his reasons for nonpayment, to negotiate differences or to persuade the debtor to pay without litigation. The trier of fact may consider such communications harassing in their frequency, however, when they continue after all such information has been communicated and reasonable efforts at persuasion and negotiation have failed. Beyond that point communication “can reasonably be expected to harass the debtor or his family,” because it tends only to exhaust the resisting debtor’s will. If the creditor intends that likely effect, further communication is willful and actionable.

Id. at 677.

The Stony panel reversed the directed verdict entered by the trial court in favor of the defendant and remanded for a new trial in which plaintiff could recover compensatory, but not punitive damages. The present case does not come close to Story in terms of egregious conduct, in that there were, at most, only seven telephone calls, and only one in which there was anything which could be termed a threat. Although plaintiffs wife testified that these calls were upsetting to her, her worries were not attributable to anything wrong that GMAC said to her, but rather her own concern about their ability to pay the loan. And, as we noted earlier, as soon as plaintiff informed GMAC he had a lawyer, there were no further calls. Although the Story court allowed the claim to go forward, it did caution:

“Unless some latitude is given the creditor to invade, to a reasonable extent, the debtor’s right of privacy, without incurring liability, we may well end up with the result that the creditor will find it preferable to proceed immediately with legal action when a debt becomes in default, without any warning to the debtor, rather than run the risk of being answerable to a supersensitive debt- or.... ” Household Finance Cory. v. Bridge, 252 Md. 531, 543, 250 A.2d 878, 885-86, 56 A.L.R.3d 446, 455 (1969).

Id. at 677.

We conclude that GMAC demonstrated on its motion for summary judgment that there were no genuine issues of material fact, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000), and that GMAC is accordingly entitled to a summary judgment. The telephone calls, about which there was no dispute, were as a matter of law neither frequent nor so harassing so to violate section 559.72(7), Florida Statutes.

Plaintiff also alleged a violation of FCCPA, section 559.72(9), which provides that it is unlawful for a person to:

(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist[.]

The trial court granted a summary judgment in favor of GMAC on that claim, which we affirm. As we noted earlier, GMAC received the financing papers from Morse with no reason to believe that this was not a legitimate debt. Plaintiff claimed that his signature had been forged, notwithstanding his own handwriting expert’s opinion that it was his signature. The fact that plaintiff asserted, when he received telephone calls from GMAC attempting to collect the debt, that he did not owe the debt, is insufficient, in our opinion, to create an issue of fact as to his claim that GMAC knew that the debt was not legitimate. The statute does not provide for recovery if the creditor merely should have known the debt was not legitimate. Where, as here, GMAC had merely received the papers from Morse, and had no direct contact with plaintiff, the trial court was correct in granting GMAC’s motion for summary judgment.

We next address the summary judgment in favor of Morse on the claim for fraud, which involved representations by Morse that the papers plaintiff signed would not make him liable. The trial court granted the summary judgment because it concluded that plaintiff had suffered no “out-of-pocket” or “benefit-of-the-bargain” damages which are the damages recoverable for fraud. Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124, 1128 (Fla. 4th DCA); review denied, 973 So.2d 1120 (Fla.2007).

On this record there are issues of fact as to whether plaintiff suffered damages as a result of the deficiency for the loan being reported by GMAC on his credit history, and these damages would be recoverable. As explained in Vinson v. Ford Motor Credit Co., 259 So.2d 768, 771 (Fla. 1st DCA 1972), which involved the slander of credit reputation,

“A man’s credit in this day and age is one of his most valuable assets and without it, a substantial portion of the American people would be without their homes, washing machines, refrigerators, automobiles, television sets, and other mechanical paraphernalia that are now regarded as necessities of life.” [Am. Fire & Cas. Co. v. Davis, 146 So.2d 615, 619 (Fla. 1st DCA 1962) ].

Pan Am. Bank of Miami v. Osgood, 383 So.2d 1095, 1097 (Fla. 3d DCA 1980); City of Stuart v. Lynn, 705 So.2d 1073 (Fla. 4th DCA 1998) (affirming damages for negligent impairment of appellee’s credit rating); Matthews v. Deland State Bank, 334 So.2d 164, 165 (Fla. 1st DCA 1976) (affirming damages for improper entry in credit history where loan was denied).

Plaintiff, through an expert, presented proof sufficient to raise issues of fact regarding damage to his credit rating, resulting in his being required to pay higher interest on subsequent loans. As for plaintiffs contention that he can also recover mental anguish under his fraud theory, plaintiff has not supported that with any authority which persuades us. The damages he can recover will accordingly be limited to those he sustained to his credit rating, or for liability on the loan which were caused by the fraud. On remand plaintiff will be entitled to have the original retail installment sales contract produced and made available for his examination.

The trial court also granted Morse’s motion for summary judgment on plaintiffs FDUTPA claim because plaintiff did not suffer any recoverable. damages. Under FDUTPA section 501.211(2), Florida Statutes (1999), a consumer may recover “actual damages” but section 501.212(3) explains that FDUTPA does not apply to a “claim for personal injury or death or a claim for damage to property other than the property that is the subject of the consumer transaction.”

Although the term “property” is not defined in the statute, the second district has held that “the type of property which is the subject of such a transaction for which actual damages were recoverable” is found in the definition of a “Consumer transaction” in section 501.203. Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693 So.2d 602, 605 (Fla. 2d DCA 1997). In 1999, section 501.203 provided in pertinent part as follows:

(8) “Trade or commerce” means the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated....
(9) “Thing of value” may include, without limitation, any moneys, donation, membership, credential, certificate, prize, award, benefit, license, interest, professional opportunity, or chance of winning.

Based on sections 501.212(8) and 501.203(8) and (9), this court and other courts have held that section 501.211 “ ‘entitles a consumer to recover damages attributable to the diminished value of the goods or services received, but does not authorize recovery of consequential damages to other property attributable to the consumer’s use of such goods or services.’ ” Fort Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715 So.2d 311, 314 (Fla. 4th DCA 1998) (quoting Urling v. Helms Exterminators, Inc., 468 So.2d 451, 453 (Fla. 1st DCA 1985)).

Plaintiff recognizes that damages to his credit rating are consequential, T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1542 (11th Cir.1985) (identifying injury suffered to credit reputation as “special” or “consequential damages”); Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir.1982). We affirm the summary judgment insofar as it precludes recovery of those damages. In addition, however, plaintiff argues that he suffered damages as a result of being obligated for the loan, and we cannot, on the basis of this record, agree with Morse’s argument that we should affirm because GMAC ultimately did not pursue any claim on the loan against him. There are material issues of fact as to whether plaintiff remains obligated on the loan, or was improperly charged for insurance, and the summary judgment is reversed as to any damages for these claims under FDUTPA against Morse.

Plaintiff also sought declaratory and in-junctive relief under FDUTPA, which in section 501.211(1) provides that a person aggrieved by a violation of FDUTPA may obtain a declaratory judgment that an act or practice violates FDUTPA. It also authorizes the courts to enjoin a party “who has violated, is violating, or is otherwise likely to violate” FDUTPA. The trial court granted a summary judgment in favor of Morse; however, we reverse. We conclude that there are material issues of fact as to whether Morse was engaging in practices which should be enjoined.

We have considered the other issues raised to be without merit. Accordingly, we reverse the summary judgment on the fraud claim against Morse, reverse the summary judgment against plaintiff under FDUTPA for recovery of any damages plaintiff can establish as a result of being obligated on the debt, and reverse the declaratory and injunctive relief summary judgment on FDUTPA claims. We also reverse the award of damages against GMAC under the FCCPA and remand for entry of a judgment for GMAC on that claim.

STEVENSON, J., and KELLEY, GLENN D., Associate Judge, concur.