text:
    THE FLORIDA BAR, Complainant, v. Jeffrey Marc HERMAN, Respondent.
    No. SC07-363.
    Supreme Court of Florida.
    Feb. 19, 2009.
    Rehearing Denied May 5, 2009.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, Florida, and Randi Klay-man Lazarus, Bar Counsel, The Florida Bar, Miami, FL, for Complainant.
    Alan Theodore Dimond and Angelika Hunnefeld of Greenberg Traurig, P.A., Miami, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Jeffrey Marc Herman be found guilty of professional misconduct and suspended from the practice of law for ninety days followed by a period of probation for two years, publicly reprimanded, and taxed with costs. The terms of the probation period recommended by the referee included the requirement that Herman perform two hundred hours of pro bono legal services at a rate of one hundred hours per year. We have jurisdiction. See art. V, § 15, Fla. Const.

For the reasons expressed below, we approve the referee’s findings of fact and recommendations as to guilt, but disapprove the recommendations as to the sanctions and suspend Jeffrey Marc Herman for eighteen months and thereafter until reinstated by this Court and tax him with costs.

BACKGROUND

The Florida Bar filed a complaint alleging Jeffrey Marc Herman violated the Rules Regulating the Florida Bar. In due course, a referee was appointed, proceedings were held, and the referee filed a report with the Court. The Florida Bar petitioned for review of the recommended sanctions. Herman filed a cross-petition for review of the recommendations of guilt and recommendations of sanctions.

The facts, as found by the referee, are as follows. In November 1996, Herman, a partner in the firm of Herman & Grub-man, P.A. (the Firm), represented Aero Controls, which was in the business of selling and repairing component aircraft parts, and Triple J Leasing, an aircraft leasing business. John Titus owned both companies. Titus, Aero Controls, and Tripie J Leasing were all based in Seattle, Washington.

Herman represented Aero Controls in a contract dispute and litigation over the purchase of a DC-10 aircraft from Air Star International. Aero Controls initially planned to dismantle the plane and sell the DC-10’s parts, but later decided to lease the aircraft through Triple J Leasing. The Firm also represented Triple J Leasing in negotiating and drafting the lease of a Boeing 737 aircraft to Air Kazakhstan. Herman was significantly involved in both cases.

Thomas Bristow, Aero Controls’ top salesman, assisted Herman and the Firm in both matters. Consequently, Bristow spent a considerable amount of time in South Florida between November 1996 and February 1998 and developed a relationship with Herman and several other members of the Firm. Around the time of the trial in the Aero Controls case, February 20, 1998, Bristow told Herman’s legal secretary that he wanted to move back to Florida.

Several years earlier, when Herman had represented various other aviation clients, he met Jack Ogilby and John Sicilian, who had extensive backgrounds in the aircraft business. On February 26, 1998, after the Aero Controls trial, Herman and Ogilby began discussing the possibility of establishing an aircraft leasing company.

The Triple J lease negotiations, which involved Herman, ended in March 1998. In May 1998, Herman, Ogilby, Bristow, and a few other potential investors met to discuss the proposed creation of an aircraft leasing company. The day after the meeting, Herman prepared a document that identified the proposed company’s stated purpose as the “Purchase, Sale and Lease of aircraft engines and spare parts.” Herman, Ogilby, and a few of the others signed the document. Bristow did not. On June 25, 1998, Herman incorporated Nation Aviation, with its principal business address being Herman’s law office address. Herman was its president, sole director, and registered agent. Nation Aviation began operations in the summer of 1998. Ogilby was in charge of the company’s “day-to-day” operation.

Shortly after the Firm closed its file on a lease negotiation for Triple J in August 1998, Bristow called Herman, told him he was no longer employed by Aero Controls, and expressed an interest in working for Nation Aviation. (In fact, Bristow did not submit a letter of resignation to Aero Controls until October 8, 1998.) Herman, who still represented Aero Controls, entertained Bristow’s interest in working for Nation Aviation. Bristow and Ogilby negotiated an employment agreement, which Bristow signed on September 17, 1998. In December 1998, Ogilby had a falling out with Bristow and asked for the return of his investment. Other investors did also. By January 1999, Herman was the sole monetary investor in Nation Aviation. At that point, he had to choose between closing Nation Aviation and losing his investment or allowing Bristow to run the company exclusively as a seller and lessor of aircraft parts. Herman chose the latter, putting his company (which was now under the direction of his client’s former top salesman) in direct competition with his client, Aero Controls. The referee concluded that Herman, who was still representing Aero Controls, should have called Titus at that point to disclose the conflict and request a waiver, but did not, because of monetary concerns. His failure to disclose was dishonest and deceitful.

Nation Aviation obtained a sales tax license on January 14, 1999. It needed the license in order to sell or lease aircraft parts. The company began leasing warehouse space in February. Bristow sold parts to twenty-three customers who had been customers of Aero Controls during Bristow’s employment there. Through Bristow, Nation Aviation generated gross revenue in 1999 of over $880,000 from the sale of parts. The Firm represented Nation Aviation while it was still counsel for Aero Controls. Aero Controls never consented to the conflict.

Titus learned that Herman owned Nation Aviation and was Bristow’s new employer in March 2000. He was shocked and felt betrayed by Herman’s actions. Aero Controls sued Herman for breach of fiduciary duty and other causes of action in the Circuit Court for the Seventeenth Judicial Circuit in Aero Controls, Inc. v. Herman & Grubman, P.A., Case No. 00-12376 CACE 25 (the underlying case). Aero Controls prevailed on the breach of fiduciary duty claim. The parties entered into an out-of-court settlement in August 2005. Titus filed a Bar complaint against Herman in February 2006.

The referee found the Bar proved the conflict of interest violations by clear and convincing evidence. Based upon the factual findings, the referee recommended that Herman be found guilty of violating Rules Regulating the Florida Bar 4-1.7(a) (prohibiting representation of a client if the representation will be directly adverse to the interests of another client, unless each client consents after consultation); 4-1.8(a) (prohibiting business transactions with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client); 4-8.4(a) (prohibiting violations or attempts to violate the Rules of Professional Conduct); and 4-8.4(c) (prohibiting engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The referee found four aggravating factors and one mitigating factor. The aggravating factors were a dishonest or selfish motive; substantial experience in the practice of law; a refusal to acknowledge the wrongful nature of the conduct; and actual harm to the client. The sole mitigating factor was the absence of a prior disciplinary record.

The Florida Bar petitioned for review of the recommended sanctions. Herman filed a cross-petition for review of the recommendations of guilt and recommendations of sanctions.

ANALYSIS

We address first the recommendations of guilt. The factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005). The referee in this case made numerous, detailed factual findings concerning Herman’s conduct from the time he met Bristow through the time of Titus’s lawsuit and beyond. The facts are not disputed. Rather, Herman maintains that the facts do not support the recommendations of guilt as to any of the rules at issue — 4—1.7(a), 4-1.8(a), 4-8.4(a), and 4-8.4(c). We address each in turn.

Rule 4-1.7(a)

Rule 4-1.7(a), in 1999, provided:

(a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibilities to and relationship with the other client; and
(2) each client consents after consultation.

(Emphasis added.)

There is nothing in the language of the rule that restricts its application to directly adverse interests in the context of litigation between the two clients involved, as posited by Herman. Indeed, if the first part of the rule were interpreted this narrowly, there would be no need for the exceptions identified in parts (1) and (2). No lawyer could reasonably believe that representing both sides in litigation would not adversely affect either client or his relationship with them, and neither client would consent.

Further, the lawyer must reasonably believe two things for the dual representation to possibly be ethical: (1) that his representation of both will not adversely affect his legal responsibilities toward the first client; and (2) that his representation of both will not adversely affect his relationship with the first client. The fact that Titus became very angry and sued for breach of fiduciary duty when he learned that Herman owned Nation Aviation demonstrates the implausibility of Herman reasonably believing that his economic ties to and representation of Nation Aviation would not adversely affect his relationship with Aero Controls. In fact, it seems likely that he deliberately decided not to call Titus to request a waiver because he knew it would destroy his relationship with him.

Here, Herman represented Aero Controls at the same time he represented Nation Aviation, his own company. Both companies performed the same services and functions and had the same pools of potential customers and potential suppliers. Litigation, contract disputes, and deal negotiations with one pool or the other would have been the most foreseeable legal activities on behalf of either client. In fact, Herman represented Aero Controls in 1996 in connection with a contract dispute with one of its suppliers for the purchase of a DC-10 aircraft that Aero Controls planned to dismantle and sell in pieces. Aero Controls ultimately prevailed. Assuming Nation Aviation had been in the parts business at that time, it would have been in a better position to buy the DC-10 for its own use if the contract dispute between Aero Controls and its supplier had gone the other way. In the “overpopulated” aircraft parts business, the loss of a contract or the failure of a negotiation for one client would have created additional opportunities for the other. The inherent, direct conflict was exacerbated by the fact that Herman owned one of the companies; his loyalties were not only divided, but unequal. Accordingly, we approve the recommendation of guilt as to rule 4-1.7(a).

Rule 4-1.8(a)

Rule 4-1.8(a), in 1999, provided:

(a) Business Transactions With or Acquiring Interest Adverse to Client. A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer’s fee or expenses, unless:
(1)the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) the client consents in writing thereto.

(Emphasis added.) The rule prohibits two broad categories of conduct: (1) entering into a business transaction with a client; or (2) acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client. Only the first category involves transactions directly with the client. Herman’s conduct falls in the second category. Herman’s argument that the rule prohibits only business transactions directly with the client would make the second clearly identified category useless surplusage.

Herman’s decision to invest in and form Nation Aviation, which was originally going to engage in the same business as Triple J Leasing, was problematic. Nevertheless, the referee concluded that this was not enough to violate the rule. However, when Herman changed the nature of Nation Aviation’s business (bringing Nation Aviation into direct competition with Aero Controls), Herman had an ethical obligation to disclose his activities to Titus; his failure to disclose and obtain Titus’s consent violated the rule. We therefore approve the recommendation of guilt as to rule 4-1.8.

Rules 4-8.4(a) and 4-8.4(c)

Rules 4-8.4(a) and (c), in 1999, provided:

A lawyer shall not:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation ....

In light of our approval of the recommendations of guilt as to rules 4-1.7 and 4-1.8, we also approve the recommendation of guilt as to rule 4-8.4(a). The recommendation of guilt as to rule 4-8.4(c) is based on the findings that Herman’s failure to call Titus and inform him of his activities was dishonest and deceitful. Herman did not challenge these factual findings.

Aggravation and Mitigation

Herman takes issue with the aggravating factors found by the referee and also argues that additional mitigating factors should have been found. Like other factual findings, findings of mitigation and aggravation carry a presumption of correctness that will be upheld unless clearly erroneous or without support in the record. See Fla. Bar v. Arda, 848 So.2d 296 (Fla.2003). A referee’s determination that an aggravating factor or mitigating factor does not apply is due the same deference. See Fla. Bar v. Arcia, 784 So.2d 414, 415-16 (Fla.2001); Fla. Bar v. Bustamante, 662 So.2d 687, 687 (Fla.1995); Fla. Bar v. Hecker, 475 So.2d 1240, 1242 (Fla.1985).

The fact that there is some evidence in the record to support a finding that a mitigating factor might apply does not mean that the referee should have necessarily found it applicable. In most cases there will be some evidence to support one finding and some evidence to support an opposite finding. The referee’s responsibility is to weigh all of the evidence and decide which factors have been proven by clear and convincing evidence. In this case, Herman has failed to demonstrate that the aggravating factors found, or the mitigating factors not found, were “without support in the record.”

Herman argues that the referee should have found the mitigating factor of character and reputation. The referee found that Herman knew Bristow had been Aero Controls’ top salesman, that Nation Aviation would be in direct competition with Aero Controls once it began selling and leasing aircraft parts, that Bristow would have day-to-day control over the company, and that he needed to disclose his activities to Titus but did not. This is sufficient to support the referee’s decision that the factor of character does not apply.

Herman states that the full-and-free-disclosure mitigator should have been applied, but he does not provide any facts to demonstrate exceptional disclosure or cooperation on his part to support his argument. For example, in Florida Bar v. Pincket, 398 So.2d 802 (Fla.1981), a case involving trust account improprieties, the attorney voluntarily paid full restitution with interest to one of his clients; self-reported an additional violation of the trust account provisions to the Bar in an effort to prevent any further harm to the public, the courts, or the Bar; pled guilty to the rule violations with which he was charged; voluntarily advised the Bar of his trust account deficiencies; and waived grievance and referee proceedings. The only issue before the Court in the case was whether the discipline recommended by the Board of Governors (disbarment) was too severe in light of the attorney’s level of cooperation in the Bar discipline proceedings. This Court held the mitigation of the attorney’s cooperation warranted a reduction of the presumptive disbarment to a two-year suspension. See also Fla. Bar v. Hochman, 815 So.2d 624 (Fla.2002) (imposing three-year suspension nunc pro tunc to date of his earlier suspension in a felony suspension case where the attorney, after suffering from drug addiction and alcoholism for five years, admitted himself into a facility for treatment and, upon completing treatment, voluntarily informed the Bar and his clients that he had misappropriated funds, entered into a guilty plea and consent judgment with the Bar under which he was suspended for three years and required to continue rehabilitation and make restitution, and complied with all of the terms of his consent judgment and continued to be very proactive in his recovery efforts); Fla. Bar v. Corces, 639 So.2d 604 (Fla.1994) (imposing a two-year suspension on an attorney for trust account violations where the attorney had made full restitution before the Bar began its investigation); Fla. Bar v. McShirley, 573 So.2d 807 (Fla.1991) (imposing a three-year suspension on an attorney who misappropriated client funds where the attorney had replaced the converted funds before the Bar began the audit of his trust account).

The mitigating factor of cooperation in the Bar discipline process contemplates something above and beyond the normal cooperation expected of every member of the Bar. Unlike the attorneys in the cases cited above, Herman admitted the facts the Bar could have easily established with or without his cooperation, i.e., that he owned Nation Aviation, that Nation Aviation switched to selling and leasing aircraft parts in January 1999, and so forth. Accordingly, Herman has not demonstrated that the referee’s decision with regard to this mitigating factor was clearly erroneous.

Herman’s assertion that harm to the client can only be considered an aggravating factor in drug cases is simply incorrect. Standard 12.1(b) lists “actual harm to clients or third parties” as a possible aggravating factor. This standard is not restricted to drug cases. We approve the referee’s findings as to aggravating and mitigating factors.

Appropriate Sanction

Finally, we address the appropriate sanction for Herman’s misconduct. The referee recommends a ninety-day suspension followed by probation for two years. The Bar argues that a two-year suspension is the appropriate sanction. Herman maintains that his conduct warrants, at most, a public reprimand. 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 this 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 we 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).

As pointed out by the Bar, standards 4.32 and 7.2 support imposition of a suspension in this case. Standard 4.32 provides that a suspension is appropriate “when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.” Herman knew there was a conflict of interest and failed to disclose the conflict of interest to Titus; and Titus and Aero Controls were injured by Herman’s conduct. Standard 7.2 provides that a 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 same facts recited above also make this standard applicable.

The referee cites no applicable cases to support his recommendations of a ninety-day suspension followed by two years of probation. The Bar argues that a two-year suspension is appropriate, citing to Florida Bar v. Rodriguez, 959 So.2d 150 (Fla.2007). The lawyer in Rodriguez represented several clients in a class-action lawsuit against a chemical company for crop damages allegedly caused by a chemical manufactured by the company. During discovery in one of the cases, the firm discovered evidence that the company had conducted tests of the chemical in Costa Rica and discovered that it caused crop damage there. The company began settlement negotiations, but tied its willingness to settle to a side agreement with the law firm not to represent any other clients in suits against it. The company paid the firm over $6 million under the agreement. Rodriguez received $1.5 million as his share. This Court imposed a two-year suspension and disgorgement of the money to The Florida Bar’s Client Security Fund.

The facts in Rodriguez are more egregious than those in this case. Entering into a secret agreement with the opposing party while still involved in litigation against them, especially when the agreement is part and parcel of settlement negotiations, is a much more blatant conflict of interest than that involved here. Thus, Rodriguez supports the conclusion that something less than a two-year suspension would be appropriate in this case.

The case of Florida Bar v. Bennett, 276 So.2d 481 (Fla.1973), establishes the lower limits. In Bennett, the attorney was sued in circuit court by four of his co-investors in a business deal for “fraudulent misrepresentation and breach of fiduciary duties.” The attorney told his partners that the price of property purchased was $146,000 when it was $140,000 and that part of the shopping center was not for sale when it was. He also failed to pay the taxes on the property after his partners gave him the money to do so and fraudulently acquired ownership of one of the store premises in his own right. They recovered a final judgment for $71,333. Although he did not have an attorney/client relationship with his co-investors, he was a trustee for the group, which gave rise to a fiduciary duty. This Court suspended the attorney for one year for his conduct, which violated what is now rule 4-8.4(c).

As here, the attorney in Bennett argued that he was acting as a private investor and not an attorney in the shopping center purchase, so there was no conflict of interest. The Court disagreed, stating “that attorneys can seldom cast off completely the mantle they enjoy in the profession and simply act with simple business acumen and not be held responsible under the high standards of our profession” and that even in their business dealings they must “avoid tarnishing the professional image or damaging the public which may rely upon their professional standing.” Id. at 482.

The conduct in Bennett is less egregious than that involved here. None of Bennett’s co-investors were clients. Additionally, Bennett was decided in 1973 and this Court “has moved towards stronger sanctions for attorney misconduct” in recent years. See Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2003). Thus, one year is the least amount of time that would be appropriate in this case. As Herman’s conduct falls somewhere between that in Rodriguez and that in Bennett, we disapprove the referee’s recommended sanctions, suspend Herman for eighteen months (without probation), and order him to pay the Bar’s costs. In light of the longer suspension period, we disapprove the recommendation that Herman also be publicly reprimanded for his conduct.

As for the recommendation that Herman be required to perform 200 hours of pro bono legal services during a two-year probation, this is not one of the types of disciplinary sanctions identified in Rule Regulating the Florida Bar 3-5.1. The rule allows for probation and certain kinds of additional training, but not for the provision of pro bono legal services. As a practical matter, probation is usually imposed when the respondent suffers from some kind of drug or alcohol addiction or mental illness, such that ongoing monitoring of the respondent’s condition is desirable.

CONCLUSION

Jeffrey Marc Herman is hereby suspended from the practice of law in Florida for eighteen months and thereafter until he proves rehabilitation. The suspension will be effective, nunc pro tunc, February 7, 2009, the effective date of the discipline that this Court imposed in its January 8, 2009, order. Fla. Bar v. Herman, No. SC07-S63, 1 So.3d 173, 2009 WL 55936 (Fla. Jan. 8, 2009) (unpublished order). As Herman is currently suspended, he does not need thirty days to close out his practice and protect the interests of existing clients. Herman shall accept no new business until he is reinstated to the practice of law in Florida.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Jeffrey Marc Herman in the amount of $11,741.40, for which sum let execution issue.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, and POLSTON, JJ., concur.

CANADY, J., concurs in result only.

LABARGA, J., did not participate.

      . As a preliminary matter, neither party challenges the referee’s findings of fact. Accordingly, we approve those findings without further discussion.

      . Herman and the Firm continued to represent Aero Controls and its affiliated companies in various legal matters until August 1999.

      . The versions of these rules in effect in January 1999, the point at which Nation Aviation began to sell and lease aircraft parts, are given. See R. Regulating Fla. Bar 4-1.7(a), 4-1.8(a) (1992); 4-8.4(a), (c) (1998).

      . At the time of the misconduct in Bennett, article XI, paragraph 2, of the Integration Rule of the Florida Bar (1955) provided in pertinent part: “The commission by a lawyer of any act, contrary to honesty, justice or good morals, whether the act is committed in the course of his relations as an attorney or otherwise, and whether or not the act is a felony or misdemeanor, constitutes a cause for discipline.”

      . Although not addressed in the opinions, the referee in the Rodriguez and Florida Bar v. St. Louis, 967 So.2d 108 (Fla.2007), cases recommended the sanction of requiring a certain number of pro bono hours in both cases. See St. Louis, 967 So.2d at 118 (disbarment); Rodriguez, 959 So.2d at 158 (two-year suspension). The Court disapproved the recommendations.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. James Harvey TIPLER, Respondent. The Florida Bar, Complainant, v. James Harvey Tipler, Respondent. The Florida Bar, Complainant, v. James Harvey Tipler, Respondent.
    Nos. SC03-149, SC05-1014, SC06-1775.
    Supreme Court of Florida.
    April 30, 2009.

      John F. Harkness, Jr., Executive Director, Kenneth L. Marvin, Director of Lawyer Regulation, and Olivia Paiva Klein, Bar Counsel, The Florida Bar, Tallahassee, Florida, for Complainant.
    James Harvey Tipler, pro se, Beverly Hills, California, for Respondent.
   PER CURIAM.

We have for review referees’ reports from three Bar discipline cases recommending that respondent, James Harvey Tipler, be found guilty of various acts of professional misconduct and subjected to various sanctions, including disbarment. We have jurisdiction. See art. V, § 15, Fla. Const. In an order previously entered in Florida Bar v. Tipler, No. SC06-1775, 999 So.2d 646, 2008 WL 5378150 (Fla. Dec. 22, 2008), we disbarred Tipler and noted that this opinion was to follow. We now consolidate that case with Florida Bar v. Tipler, No. SC03-149, and Florida Bar v. Tipler, No. SC05-1014, for purposes of review. For the reasons expressed below, Tipler is disbarred.

FACTS

Case No. SC03-H9

In Case No. SC03-149, the referee found that Tipler represented a client, an eighteen-year-old mother, in Bay County, Florida, on a charge of aggravated assault. Tipler charged his client a fee of $2,300 and entered into a fee agreement with her that allowed a “credit of $200 for each time she engaged in sex with Respondent” and a “$400 credit if she arranged for other females to have sex with him.” For his misdeeds, Tipler was charged with racketeering and four counts of prostitution. He ultimately pleaded guilty to one count of solicitation of prostitution.

The Florida Bar filed a complaint against Tipler, and the matter was stayed pending the resolution of a disciplinary case in Alabama arising out of the same incident. Tipler admitted that the agreement existed and that he engaged in sex with his client and another woman in exchange for credits toward the amount the client owed Tipler in attorney fees. Tipler also admitted that his actions were morally and ethically wrong. After the disciplinary case worked its way through the three levels in the Alabama disciplinary system, the Supreme Court of Alabama suspended Tipler for fifteen months. Tipler failed to file a copy of the suspension order with this Court within thirty days of the effective date of the suspension. Nevertheless, after the matter in Alabama was completed, The Florida Bar filed an amended complaint and moved for summary judgment. The referee granted summary judgment in favor of the Bar.

Based on the foregoing, the referee recommended that Tipler be found guilty of violating Rules Regulating the Florida Bar 3-4.3 (“The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.”); 3-4.4 (indicating that criminal misconduct is a cause for discipline); 8-7.2(l )(1) (“A member of The Florida Bar who ... has been ... suspended from the practice of law by a court or other authorized disciplinary agency of another state ... shall within 30 days ... [notify] the Supreme Court of Florida and the executive director of The Florida Bar .... ”); 4-1.2(d) (“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent.”); 4-1.5(a) (“An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost ....”); 4-8.4(a) (“A lawyer shall not ... violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”); 4-8.4(b) (“A lawyer shall not ... commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects.”); 4-8.4(d) (“A lawyer shall not ... engage in conduct ... that is prejudicial to the administration of justice _”); and 4-8.4(i) (“A lawyer shall not ... engage in sexual conduct with a client that exploits ... the lawyer-client relationship.... ”).

The referee found the following aggravating factors: (1) Tipler had a prior disciplinary history; (2) his motives were dishonest and selfish; (3) he exhibited a pattern of misconduct; (4) he committed multiple offenses; (5) the victims were vulnerable; and (6) he had substantial experience in the practice of law.

In mitigation, the referee found that Ti-pler (1) had personal and emotional problems; (2) had a physical or mental impairment or disability; (3) received only minimal penalties or sanctions for being found guilty of a misdemeanor; and (4) expressed remorse for his actions.

For Tipler’s misconduct in Case No. SC03-149, the referee recommended that Tipler be suspended for eighteen months, placed on probation for two years following reinstatement, and required to contact Florida Lawyers Assistance, Inc. (FLA), within thirty days of the final judgment in this case and sign a three-year FLA rehabilitation contract under the terms and conditions recommended by FLA. The referee further recommended that Tipler be charged with the Bar’s costs in the amount of $3,734.50.

Case No. SC05-10H

In Case No. SC05-1014, the referee found that in Alabama, Tipler represented a plaintiff in a medical malpractice case arising out of a patient’s death. Tipler attempted to submit into evidence a videotape depicting the patient on the day before the surgery that allegedly resulted in his death. To authenticate the tape, Ti-pler questioned the patient’s son as to whether the tape was accurate. The videotape Tipler attempted to submit was edited from the original version to delete or move scenes that would have been harmful to the plaintiffs case. Further, the patient’s son had never viewed the edited tape and, thus, unknowingly gave false answers concerning the authenticity of the tape during Tipler’s questioning.

Upon objection by the defense, the trial court conducted an inquiry and disallowed the entry of either the original or edited tape. Additionally, based on Tipler’s answers to questions posed to him during the inquiry, the trial court held Tipler in criminal contempt after a show-cause hearing. A grand jury indicted Tipler for perjury, a first-degree felony. Tipler eventually pleaded guilty to interference with judicial proceedings, a misdemeanor.

After a successful first appeal by Tipler within the Alabama disciplinary system, the Supreme Court of Alabama ultimately determined that Tipler’s conviction was a “serious crime” and reversed and remanded the case for further proceedings. See Ala. State Bar v. Tipler, 904 So.2d 1237 (Ala.2004). Thereafter, Tipler was suspended for 120 days in Alabama. Tipler failed to file a copy of the suspension order with this Court within thirty days of the effective date of the Alabama suspension. Nevertheless, the Bar filed a complaint against Tipler. Tipler did not file an answer to the complaint or respond to the Bar’s requests for admission. The Bar moved for summary judgment, and Tipler eventually consented to summary judgment on guilt. Accordingly, summary judgment was granted on all the factual allegations and rule violations.

In addition to his Alabama disciplinary proceedings, Tipler has disciplinary proceedings pending in California. Tipler testified before the referee that a stipulation submitted to the referee and entered into evidence was a final stipulation with the State Bar of California. In fact, the stipulation was not final. Rather, Tipler was referred to California’s Alternate Discipline Program (ADP) by the disciplinary judge. The disciplinary judge noted that if Tipler was not accepted into the ADP, the stipulation would be final, subject to the approval of the California Supreme Court. At the time of the proceedings before the referee, the California case was pending before the ADP judge. Hence, there was not yet a final disposition in the California proceedings.

Based on the foregoing, the referee recommended that Tipler be found guilty of violating Rules Regulating the Florida Bar 3-4.3 (“The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.”); 3-4.4 (indicating that criminal misconduct is a cause for discipline); 3-7.2(Z )(1) (“[A] member of The Florida Bar who ... has been ... suspended from the practice of law by a court or other authorized disciplinary agency of another state ... shall within thirty days ..". [notify] the Supreme Court of Florida and the executive director of The Florida Bar .... ”); 4-3.3(a) (“A lawyer shall not knowingly ... make a false statement of material fact or law to a tribunal.”); 4-3.4(a)-(b) (lawyer shall not unlawfully alter or conceal documents or fabricate evidence); 4-8.4(b) (“A lawyer shall not ... commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects.”); 4-8.4(c) (“A lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation .... ”); and 4-8.4(d) (“A lawyer shall not ... engage in conduct ... that is prejudicial to the administration of justice.... ”).

The referee found the following aggravating factors: (1) Tipler had a prior disciplinary history; (2) his motives were dishonest and selfish; (3) he had substantial experience in the practice of law; (4) he exhibited a pattern of misconduct; (5) he committed multiple offenses; and (6) he submitted false evidence during the disciplinary process. The referee found the following mitigating factors: (1) minimal penalties or sanctions were imposed on Tipler for being found in criminal contempt and being convicted of a misdemeanor conviction; and (2) Tipler expressed remorse for his conduct.

For Tipler’s misconduct in Case No. SC05-1014, the referee recommended that the Court suspend Tipler for three years and that he be taxed the Bar’s costs in the amount of $2,212.32.

Case No. SC06-1775

On August 31, 2006, the Bar filed its complaint against Tipler in Case No. SC06-1775. The Bar mailed its complaint by certified mail, return receipt requested, to Tipler at his record Bar address; the complaint was returned as unclaimed, prompting the Bar to mail Tipler a second copy of the complaint by regular mail. The second copy was not returned.

Tipler failed to answer the complaint. After a referee was appointed, Tipler filed a motion to disqualify the referee on November 21, 2006, which was denied on November 29, 2006. The Bar filed a notice of application for default on February 8, 2007, and a motion for default on March 7, 2007. The referee entered a default against Tipler on March 12, 2007. After Tipler unsuccessfully moved to overturn the default, a final sanction hearing was held on September 26, 2007. At the hearing, Tipler did not present any evidence in mitigation.

In Case No. SC06-1775, the referee found seven instances of misconduct, wherein Tipler misused over $57,000 in funds received from various clients and failed to diligently prosecute the clients’ cases or even communicate with the clients. The case types ranged from dissolution of marriage to real estate to copyright infringement. In addition, Ti-pler secured fees based on intentional misrepresentation and fraud. In most of the cases, Tipler charged an excessive fee, failed to comply with the Bar rules governing trust accounts, and failed to protect the clients’ interests by refunding unearned fees. Further, Tipler committed conversion and criminal theft in many of the instances. In one instance, Tipler labored under a conflict of interest. In some instances, Tipler failed to respond to inquiry letters sent by the Bar to his record address.

For example, in one of the charged cases, two clients hired Tipler to represent them in filing two separate personal injury claims for two different accidents. Tipler filed two separate personal injury complaints on behalf of the clients. Tipler failed to provide a copy of the signed contingency fee agreement and statement of clients’ rights to the clients in either lawsuit. After discovery, both lawsuits proceeded to a settlement in which two checks for $4,750 were issued, payable to the clients and Tipler.

The clients came to Tipler’s office to sign the checks; Tipler told them he would provide them with copies of the checks and the written closing statements the next business day. The settlement funds were paid out after the checks were endorsed. The checks were cashed by Tipler, but the funds were not deposited into Tipler’s trust account.

There were outstanding medical bills associated with the accidents totaling approximately $2,500. Tipler paid the clients what he alleged to be the balance of the settlement funds after his fees and the medical bills were paid. However, Tipler paid none of the medical bills. From November 2004 through March 2005, the clients attempted to communicate on numerous occasions with Tipler, who told them that he would provide them with a copy of the closing statements and also copies of the checks that he had mailed to the medical providers to verify payment of the bills. Despite numerous requests from his clients, however, Tipler did not provide the clients with a written closing statement for either of the personal injury cases or copies of the checks for the alleged medical payments. Due to Tipler’s failure to pay a $1,924 hospital bill, one of the clients was sued and a judgment entered against him for $2,481.15 in February 2005. Although a large sum of money was not involved, this particular instance demonstrates Tipler’s complete lack of probity.

Additionally, to exacerbate matters, Case No. SC06-1775 also includes an instance in which Tipler attempted to defraud his creditors with respect to a $487,714.81 judgment before a federal bankruptcy court. The bankruptcy court specifically found that Tipler’s actions indicated that he intended to hinder, delay, or defraud his creditors, and that his failure to file income tax returns for four years, as well as his failure to maintain and preserve adequate records, made it impossible for the creditors to ascertain Tipler’s true financial condition. In particular, the bankruptcy court found that Tipler “made numerous false and conflicting statements under oath” and “knowingly and fraudulently made a false oath or account in connection with his bankruptcy case.” In re Tipler, 360 B.R. 333, 354-55 (Bankr.N.D.Fla.2005).

For the foregoing reasons, the referee recommended that Tipler be found guilty of violating Rules Regulating the Florida Bar 3-4.3 (“The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.”) (two counts); 4-1.2(a) (“[A] lawyer shall abide by a clients decisions concerning the objectives of representation ....”) (two counts); 4-1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”) (six counts); 4-1.4 (“A lawyer shall ... keep [a] client reasonably informed about the status of the matter [and] promptly comply with reasonable requests for information.”) (five counts); 4-1.5(a) (“An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost -”) (six counts); 4-1.7 (prohibiting representation of adverse interests); 4-1.15 (“A lawyer shall comply with The Florida Bar Rules Regulating Trust Accounts.”) (two counts); 4-1.16(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest ....”) (six counts); 4-8.4(a) (“A lawyer shall not ... violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”); 4-8.4(b) (“A lawyer shall not ... commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects.”) (three counts); 4-8.4(c) (“A lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation ....”) (three counts); 4-8.4(d) (“A lawyer shall not ... engage in conduct ... that is prejudicial to the administration of justice ....”) (four counts); 4-8.4(g)(l) (“A lawyer shall not ... fail to respond in writing to any ... initial written investigative inquiry by bar counsel [or a disciplinary agency].”) (six counts); 4-8.4(g)(2) (“A lawyer shall not ... fail to respond [to] any follow-up written investigative inquiries by bar counsel [or a disciplinary agency].”) (two counts); 5-1.1(a) (“A lawyer shall hold in trust funds and property of clients or third persons that are in a lawyer’s possession in connection with representation.”) (two counts); 5-1.1(b) (“Money or other property entrusted to an attorney for a specific purpose, including advances for fees, costs, and expenses, is held in trust and must be applied only to that purpose.”) (four counts); 5-l.l(e) (“[A] lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”) (three counts); and 5-1.1(f) (requiring a lawyer to treat disputed funds as trust property) (two counts).

The referee found the following aggravating factors: (1) Tipler had a prior disciplinary history; (2) his motives were dishonest and selfish; (3) he exhibited a pattern of misconduct; (4) he committed multiple offenses; (5) his victims were vulnerable; (6) he had substantial experience in the practice of law; and (7) he was indifferent to making restitution. The referee found no mitigating factors.

For his misconduct in Case No. SC06-1775, the referee recommended that Tipler be disbarred, ordered to pay restitution, and taxed with the Bar’s costs. As stated above, we have already issued an order approving in its entirety the referee’s report in Case No. SC06-1775. See Fla. Bar v. Tipler, 999 So.2d 646 (Fla.2008) (table).

ANALYSIS

In all three cases, Tipler petitioned for review of the referees’ reports, challenging their findings and recommendations on due process grounds; he also challenged the referees’ recommendations as to discipline.

Tipler primarily argues that he was denied due process in all three of the proceedings against him. None of his due process arguments have merit. With regard to Case No. SC03-149, Tipler argues that the findings in the Alabama disciplinary system should not be considered conclusive proof of guilt because the Alabama proceedings were defective in that he was not allowed to call witnesses, and since the incidents transpired in Florida, the disciplinary proceedings should have been held in Florida. Accordingly, Tipler argues that the referee should not have granted summary judgment in Case No. SC03-149.

Rule 3-4.6(a) provides in pertinent part:

A final adjudication in a disciplinary proceeding by a court or other authorized disciplinary agency of another jurisdiction, state or federal, that an attorney licensed to practice in that jurisdiction is guilty of misconduct justifying disciplinary action shall be considered as conclusive proof of such misconduct in a disciplinary proceeding under this rule.

Based on the rule, the Florida referee properly relied on the records of the Alabama disciplinary proceedings. See Fla. Bar v. Wilkes, 179 So.2d 193 (Fla.1965); see also Fla. Bar v. Kandekore, 766 So.2d 1004, 1007 (Fla.2000). However, as stated in Wilkes, there is a limited exception to the rule:

[Rjight and justice require that when the accused attorney shows that the proceeding in the foreign state was so deficient or lacking in notice or opportunity to be heard, that there was such a paucity of proof, or that there was some other grave reason which would make it unjust to accept the foreign judgment as conclusive proof of guilt of the misconduct involved Florida can elect not to be bound thereby.... [T]he burden of showing why a foreign judgment should not operate as conclusive proof of guilt in a Florida disciplinary proceeding is on the accused attorney.

179 So.2d at 198 (emphasis added). Ti-pler’s claim that the Alabama proceedings were deficient in due process fails because (1) he was afforded a full opportunity to conduct discovery; (2) he was afforded a full opportunity to confront witnesses; and (3) he was represented by competent counsel. Indeed, the very fact that Tipler was afforded two appeals to contest his discipline in Alabama negates his claim that he was denied due process there. Further, Tipler’s argument that the case should have been litigated in Florida is disingenuous. Tipler failed to object to any of six motions for extension of time to file the referee’s report filed by Bar counsel pending the resolution of the Alabama proceedings. Moreover, the record of the Alabama proceedings before the referee supported the Bar’s position. Finally, Ti-pler failed to present any documents to support his position. The referee correctly granted summary judgment and used the Alabama findings to support a conclusion that Tipler is guilty of the rule violations charged. See Fla. Bar v. Mogil, 763 So.2d 303, 307 (Fla.2000) (“It is not enough for the [party opposing summary judgment] merely to assert that an issue does exist.” (emphasis omitted) (quoting Landers v. Milton, 370 So.2d 368, 370 (Fla.1979))).

With regard to Cases No. SC05-1014 and SC06-1775, Tipler argues that he received inadequate notice and opportunity to be heard, in violation of his right to due process. Due process is satisfied in Bar disciplinary proceedings where the attorney is served with notice of the Bar’s charges and is afforded an opportunity in the disciplinary hearing to be heard and defend himself. Fla. Bar v. Committe, 916 So.2d 741, 745 (Fla.2005). Further, this Court has defined due process in this regard as follows:

[D]ue process requires the giving of reasonable notice and such shall be effective by the service of the complaint upon the respondent by mailing a copy thereof by registered or certified mail return receipt requested to the last-known address of the respondent according to the records of The Florida Bar or such later address as may be known to the person effecting the service.

R. Regulating Fla. Bar 3-7.11(c).

As to Case No. SC05-1014, Tipler argues that although his counsel for Case No. SC03-149 was served with papers for Case No. SC05-1014, she was not his counsel for the latter case, Tipler was never personally served, and he therefore was denied an opportunity to answer the charges against him. Tipler’s argument is disingenuous. Five days before the scheduled hearing on summary judgment, Ti-pler’s counsel filed a “Motion for Order Allowing Withdrawal of Counsel” in which she stated that she did not intend to make an appearance in the matter. A letter attached to the motion to withdraw indicates that months earlier, Tipler’s counsel informed Bar counsel that she had forwarded the documents to Tipler and requested that he accept service. Hence, Tipler actually received the documents filed in the case. Additionally, Tipler faxed a letter to the referee stating that his counsel was representing him in various Bar matters and was withdrawing from representation in Case No. SC05-1014. It is impossible for counsel to withdraw from representation in a matter in which she did not represent Tipler. Further, in the same letter, Tipler consented to the entry of a summary judgment in that case. Tipler was represented by counsel, who was served with copies of all filings, actually received notice, had an opportunity to respond, and, in fact, consented to summary judgment. The process afforded him in Case No. SC05-1014 was sufficient.

As to Case No. SC06-1775, Tipler argues that the referee should not have granted default judgment because (1) Ti-pler was not properly served with a copy of the Bar’s formal complaint; and (2) justice favors deciding issues on the merits rather than by default. Tipler first argues that the practice of law is akin to a property right and comes with the same due process protections applicable to deprivation of property claims. Tipler compares the “right” to practice law to a parent’s fundamental right to raise a child. Tipler is incorrect. The Bar rules, as adopted by this Court, clearly state that “[a] license to practice law confers no vested right to the holder thereof but is a conditional privilege that is revocable for cause.” R. Regulating Fla. Bar 3-1.1.

The Bar mailed its complaint by certified mail, return receipt requested, to Tipler at his record Bar address. This satisfied due process. Although not required to do so, the Bar further satisfied due process by mailing another copy of the complaint to Tipler after the first one was returned as unclaimed.

Tipler misperceives our holding in Florida Bar v. Porter, 684 So.2d 810 (Fla.1996). He argues that pursuant to Porter, he was entitled as a matter of due process to an evidentiary hearing to determine whether he knowingly ignored his mail. However, in Porter, we did not state that an eviden-tiary hearing was ever held. In fact, the opinion recites facts remarkably similar to the case at bar:

The Bar then filed a formal complaint against Porter and sent this complaint by certified mail to Porter’s record Bar address on January 30, 1996. After three attempts to deliver this complaint to Porter, the post office sent the complaint back to the Bar on February 19, 1996. On February 22, 1996, Porter spoke with counsel from the Bar, who informed him that a complaint was coming in the mail. The Bar received the unclaimed complaint on February 27, 1996. Thereafter, the Bar sent Porter a notice of default by certified mail, and he again failed to retrieve the mailing. Based on these facts, the referee granted the Bar’s motion for default and scheduled a hearing limited solely to the issue of appropriate sanctions for the misconduct. After a hearing which Porter attended, the referee found Porter guilty of violating [various Bar rules].

Id. at 812. Based on these facts, we concluded that we could not “endorse Porter’s knowing decision to ignore his mail.” Id. at 813 (citing Fla. Bar v. Santiago, 521 So.2d 1111 (Fla.1988)). Porter does not support Tipler’s argument that he is entitled to an evidentiary hearing to determine whether his conduct was knowingly done.

Tipler attempts to distinguish Porter by asserting that he did not know that the Bar mailed the complaint. Once again, Tipler is being disingenuous. At oral argument, Tipler stated that he was unable to retrieve the Bar’s complaint from his record Bar address because he was under treatment and doing business in California at the time. But he admitted that he did not change his record address or notify Bar counsel of his temporary change of address. Further, Tipler knew that the complaint had been filed. On November 21, 2006, Tipler moved to disqualify the referee in this case, and it was not until February 8, 2007, that the Bar filed its notice of application for default; the Bar filed its motion for default a month later on March 7, 2008. Accordingly, it appears that in addition to being properly served with the complaint (and thus being provided with due process), Tipler was dilatory in his actions to prevent the entry of a default judgment.

Tipler’s final due process argument with regard to Case No. SC06-1775 is that justice favors hearing cases on the merits, especially in cases where disbarment is a possible disciplinary sanction. It is true that justice generally favors deciding issues on the merits rather than by default. See generally Asset Mgmt. Consultants of Va., Inc. v. City of Tamarac, 913 So.2d 1179 (Fla. 4th DCA 2005); Allied Roofing Indus., Inc. v. Venegas, 862 So.2d 6 (Fla. 3d DCA 2003). However, as noted above, in Porter we upheld a referee’s decision to enter default judgment and disbarred a lawyer based on facts strikingly similar to those in the case at bar. We stated: “By this default, the allegations in the Bar’s complaint were deemed admitted, and the default thereby provided the referee with competent, substantial evidence upon which to base the findings. Porter is precluded from now complaining about any factual findings deemed admitted.” Porter, 684 So.2d at 813 (citations omitted); see also Fla. Bar v. Shoureas, 892 So.2d 1002 (Fla.2004) (approving default judgment based on Porter and imposing three-year suspension); Fla. Bar v. Nunes, 734 So.2d 393 (Fla.1999) (same). Hence, we did not see fit to vacate the default judgment entered in Porter even though disbarment was a possible sanction, which we actually imposed. Likewise, we see no reason to vacate the default judgment entered in Case No. SC06-1775. Instead, we approve the referee’s decision.

Finally, Tipler challenges the referees’ recommendations as to discipline. AI-though Tipler presents some inappropriate mitigation arguments, Tipler provides little analysis as to why he should not be disbarred. First, Tipler argues that the sexual relationship in Case No. SC03-149 was preexisting and consensual, distinguishing it from cases where harsh sanctions were imposed for coercive sexual relationships with clients. As to Case No. SC05-1014, Tipler argues that the recommended discipline is inconsistent with the discipline imposed in Alabama and California for the same misconduct and that because lawyers are in court more often and are therefore more likely to be convicted for contempt, they should not be disciplined harshly for such a conviction. As to Case No. SC06-1775, Tipler argues that disbarment is unfair in light of the default judgment.

In reviewing a referee’s recommended discipline, the 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, the Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing caselaw and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999). “Further, this Court views cumulative misconduct more seriously than an isolated instance of misconduct.” Fla. Bar v. Carlon, 820 So.2d 891, 899 (Fla.2002) (citing Fla. Bar v. Vining, 761 So.2d 1044 (Fla.2000)). In the reciprocal discipline cases, we are free to impose a sanction greater than that imposed in other states. See Fla. Bar v. Hagendorf 921 So.2d 611, 614 (Fla.2006).

Considered in conjunction, Tipler’s violations in Cases No. SC03-149 and SC05-1014 warrant disbarment. In Florida Bar v. Scott, 810 So.2d 893 (Fla.2002), we considered two cases involving the same lawyer. In the first case, Scott coerced a vulnerable, unwilling female client faced with the termination of her parental rights to engage in sexual relations in exchange for a reduction in attorney fees. Id. at 900. In the second case, Scott was found to have been held in criminal contempt for failing to attend the first day of a criminal trial and was dishonest in stating the reason for his inability to attend. Id. at 896. Other than an admonishment for minor misconduct, Scott had no prior discipline. Id. at 900. Nonetheless, we held that disbarment was the appropriate sanction.

Although we specifically noted that the sexual coercion present in Scott — but not immediately apparent in the instant cases — was a determining factor, Scott provides useful guidance here. Like the respondent in Scott, Tipler, in Case No. SC03-149, engaged in a sexual relationship with a vulnerable client. In addition, Ti-pler was convicted of solicitation of prostitution. Further, in contrast to Scott, Ti-pler has not just one additional pending case, but two — Cases No. SC05-1014 and SC06-1775.

In Case No. SC05-1014, Tipler essentially manufactured evidence and elicited false testimony from an innocent witness in an attempt to authenticate that evidence. For his misconduct, Tipler was held in criminal contempt and pleaded guilty to a misdemeanor charge of interference with judicial proceedings, which the Alabama Supreme Court held to be a “serious crime.” Additionally, in the proceedings before the referee, Tipler misrepresented the status of his disciplinary proceedings in California. Moreover, Tipler is currently suspended from the practice of law in Florida for misconduct in earlier proceedings and has in the past received two public reprimands and an admonishment.

In Florida Bar v. Klausner, 721 So.2d 720, 721 (Fla.1998), we reiterated that lawyers who knowingly and deliberately seek to corrupt the legal process will be excluded from the process. In Klausner, an inexperienced and remorseful attorney with no prior disciplinary history received a three-year suspension for submitting forged stipulations and misrepresenting the authenticity of the documents. Id. Additionally, although the attorney was criminally charged with felonies and misdemeanors, he was only adjudicated guilty of the misdemeanors. Id. Unlike the situation in Klausner, where we heavily considered the attorney’s inexperience and lack of a prior disciplinary history, Tipler, in the present cases, has substantial experience in the practice of law and an extensive disciplinary history in three states.

We have already determined that, standing alone, Tipler’s misconduct in Case No. SC06-1775, which involved multiple misuses of client funds, warrants disbarment. We have recognized that the overwhelming majority of cases involving the misuse of client funds have resulted in disbarment. See Fla. Bar v. Valentine-Miller, 974 So.2d 338, 338 (Fla.2008) (“There is never a valid reason for taking client funds held in trust or for completely abandoning clients.”). Case No. SC06-1775 involves seven instances of misuse of an aggregate of $57,680.44 in client funds and an instance in which Tipler attempted to defraud his creditors in the amount of $487,714.81 by misrepresenting facts to a federal bankruptcy court. Further, the fact that a default was entered against Tipler does not mitigate the discipline that should be imposed. As pointed out above, in Porter the Court disbarred an attorney despite the fact that the recommended discipline was based on a default judgment. Unlike the present case, however, the lawyer in Porter engaged in just one instance of misuse of client funds. In Case No. SC06-1775, Tipler stole money from seven clients and perpetrated a fraud on a federal court. Clearly, this type of misconduct warrants disbarment.

Tipler has broken numerous Bar rules. He satisfied his own sexual appetite with a client as part of a sex-for-fees arrangement. He altered evidence and caused a witness to unknowingly give false testimony. He has charged his clients excessive fees and stolen their money. He has failed to maintain a trust account. He has broken public confidence in the profession of the practice of law by neglecting his clients and failing to prosecute their cases. He has labored under a conflict of interest. He has prejudiced the administration of justice by misrepresenting facts to multiple courts. And, throughout the disciplinary process in these cases, he has been dilatory, deceitful, and evasive. Tipler has thus engaged in an ongoing pattern of egregious misconduct. Although we question whether Tipler is truly amenable to rehabilitation, we take into account the mitigating factors found by the referee in Case No. SC03-149 and choose not to permanently disbar Tipler at this time. See Fla. Bar v. Bailey, 803 So.2d 683, 695 n. 4 (Fla.2001) (declining to impose permanent disbarment). Based on the foregoing, there is no appropriate sanction for Tipler in these cases other than disbarment.

CONCLUSION

James Harvey Tipler is disbarred, effective nunc pro tunc February 23, 2006.

In addition to the award of restitution and costs in our prior order in Case No. SC06-1775, judgment in Cases No. SC03-149 and SC05-1014 is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from James Harvey Tipler, in the amount of $5,946.82, for which sum let execution issue.

It is so ordered.

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

LABARGA and PERRY, JJ., did not participate.

      . With regard to Case Nos. SC03-149 and SC05-1014, Tipler also argues that the referee should have been disqualified and alleges that there is a motion to disqualify pending before the referee. In the motion, Tipler argues that the referee should be disqualified because he failed to consider as mitigating evidence the treatment that Tipler underwent as part of California’s ADP. Tipler complains that the referee instead considered inadmissible evidence and found in aggravation that Tipler misrepresented the finality of the California stipulation as to discipline. On review, Tipler also directly challenges the referee’s findings with regard to the California stipulation.
      However, the motion to disqualify, which the referee denied as moot, was filed two months after the referee issued his reports in those cases and was therefore untimely. See Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986). Additionally, as there is competent, substantial evidence in the record to support the referee’s findings with respect to the California disciplinary proceedings, we approve those findings without further comment.

      . Rule 3-4.6 has been amended since Case No. SC03-149 was initiated. See In re Amendments to Rules Regulating Fla. Bar & Fla. Rules of Jud. Admin., 907 So.2d 1138 (Fla.2005). Quoted here is the entire text of the rule as it existed at the time Case No. SC03-149 was initiated.

      . Similarly, the referee correctly found that the Alabama disciplinary findings constituted conclusive proof of guilt in Case No. SC05-1014.

      . There is no indication in the record that the sexual relationship was in fact preexisting. Tipler states that he would have established this fact had summary judgment not been entered against him, but he failed to raise the issue in his affidavit in opposition to summary judgment. In any event, Tipler is guilty of multiple other rule violations in Case No. SC03-149.

      . The Court is also currently awaiting referee reports in an additional three disciplinary cases pending against Tipler. See Fla. Bar v. Tipler, No. SC07-1752 (Fla. filed Sept. 14, 2007); Fla. Bar v. Tipler, No. SC07-915 (Fla. filed May 17, 2007); Fla. Bar v. Tipler, No. SC06-2318 (Fla. filed Nov. 27, 2006).


text:
    Daniel Louis MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1779.
    Supreme Court of Florida.
    May 7, 2009.
    James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Douglas T. Squire and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review the decision of the Fifth District Court of Appeal in Moore v. State, 909 So.2d 500 (Fla. 5th DCA 2005), which expressly and directly conflicts with the decision of the Second District Court of Appeal in Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We stayed proceedings in this case pending our disposition of Larimore v. State, 2 So.3d 101 (Fla.2008), in which we approved Gordon. Thus, when our decision in Larimore became final, we issued an order directing respondent in the present case to show cause why we should not accept jurisdiction, quash the decision under review and remand for reconsideration in light of our decision in Larimore. Upon consideration of respondent’s response and petitioner’s reply thereto, we have determined to so proceed.

We accordingly grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Fifth District for reconsideration upon application of this Court’s Larimore decision.

It is so ordered.

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


text:
    John Richard MAREK, Appellant, v. STATE of Florida, Appellee.
    No. SC09-765.
    Supreme Court of Florida.
    May 8, 2009.

      Martin J. McClain of McClain and McDermott, P.A., Wilton Manors, FL, for Appellant.
    Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

John Richard Marek, a prisoner under sentence of death, appeals the postconviction court’s order denying his second successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the postconviction court’s order denying relief.

I. BACKGROUND

Marek was convicted of first-degree murder, kidnapping, attempted burglary, and battery in the 1983 murder of Adella Marie Simmons, and was sentenced to death. We affirmed the judgment and sentence on direct appeal. Marek v. State, 492 So.2d 1055 (Fla.1986). Thereafter, this Court affirmed the postconviction court’s denial of Marek’s initial motion for postconviction relief and denied his attendant petition for a writ of habeas corpus. Marek v. Dugger, 547 So.2d 109 (Fla.1989). Subsequently, we denied another habeas petition, Marek v. Singletary, 626 So.2d 160 (Fla.1993), and then affirmed the denial of relief on Marek’s first successive postconviction motion and denied his third habeas petition, Marek v. State, Nos. SC04-229 & SC05-1491, 940 So.2d 427 (Fla. order filed June 16, 2006). Marek also sought postconviction relief in the federal courts. The United States District Court for the Southern District of Florida denied Marek’s federal habeas petition, and the Court of Appeals for the Eleventh Circuit affirmed the denial. Marek v. Singletary, 62 F.3d 1295 (11th Cir.1995).

In May 2007, Marek filed his second successive motion for postconviction relief, which he later amended. The amended motion raised two claims and requested leave to amend the motion.

In his first claim, Marek argued that Florida’s procedures for lethal injection violate the Eighth Amendment to the Constitution of the United States. Marek presented his challenge to the procedures as a newly discovered evidence claim based on the December 2006 execution of Angel Diaz and the subsequent investigations, reports, and statements by the Governor and the Department of Corrections.

In his second claim, Marek argued generally that his death sentence was imposed arbitrarily and capriciously thus violating Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 83 L.Ed.2d 346 (1972), which held that the death penalty must be imposed fairly and consistently. Marek based this claim on the American Bar Association’s September 17, 2006, report, Evaluating Fairness and Accuracy in the State Death Penalty Systems: The Florida Death Penalty Assessment Report (ABA Report), which criticizes Florida’s death penalty scheme and clemency process. Marek asserted that the ABA Report constitutes newly discovered evidence demonstrating that his death sentence is unconstitutionally arbitrary and capricious. In addition to relying on the ABA Report, Marek asserted that his death sentence is unconstitutionally arbitrary as a result of the State’s taking inconsistent positions in the separate trials of Marek and his codefendant, Raymond Wigley, concerning whether Ma-rek or Wigley was the dominant actor in the kidnapping and murder.

Finally, as part of this second claim, Marek asserted that his previously raised claim that his trial counsel failed to conduct an adequate investigation of Marek’s background for the presentation of mitigation in the penalty phase of his trial should be reevaluated under the standards enunciated in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Marek argues that these cases modified the standard of review for claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

On April 20, 2009, while Marek’s second successive postconviction motion was pending in the circuit court, Governor Charlie Crist signed Marek’s death warrant.

On April 23, 2009, the postconviction court summarily denied Marek’s second successive motion for postconviction relief and request for leave to amend the motion. Citing this Court’s recent cases rejecting constitutional challenges to Florida’s lethal injection procedures, the postconviction court rejected Marek’s Eighth Amendment challenge to Florida’s lethal injection procedures. The postconviction court also ruled that the ABA Report did not constitute newly discovered evidence and held that Marek’s claim that his sentencing was arbitrary in violation of Furman was mer-itless. The postconviction court found that the prosecutor did not pursue inconsistent theories at the separate trials of Marek and Wigley. And finally, the postconviction court rejected Marek’s claim requesting another review of his claim of ineffective assistance of penalty-phase counsel, finding that the request was an improper attempt to relitigate a procedurally barred issue.

On April 27, 2009, Marek filed a motion that sought both rehearing of the postcon-viction court’s summary denial of his motion to vacate and an opportunity to amend his motion to vacate. He requested leave to add the claims that his execution is unconstitutional because he has spent over twenty-five years on death row and that the United States Supreme Court’s future holding in Caperton v. A.T. Massey Coal Co., No. 33350, — W.Va.-, — S.E.2d -, 2008 WL 918444 (W.Va. Apr. 3, 2008), cert. granted, — U.S. -, 129 S.Ct. 593, 172 L.Ed.2d 452 (2008), may demonstrate that he was denied due process when Judge Kaplan presided over his initial postconviction proceeding. Later that same day, the postconviction court denied the motion for rehearing and the motion to amend.

Marek appeals the postconviction court’s denial of his motion to vacate, his motion for rehearing, and his motion to amend. He argues that (A) his sentence of death violates the Eighth and Fourteenth Amendments of the United States Constitution because it is the result of a process that permitted the arbitrary and capricious imposition of a sentence of death; (B) Florida’s lethal injection execution procedures violate the United States and Florida Constitutions; and (C) the posteonvietion court erred in denying his motion to amend and the claims contained therein.

II. ANALYSIS

An evidentiary hearing must be held whenever the movant makes a facially sufficient claim that requires a factual determination. Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000). However, “[p]ostconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Connor v. State, 979 So.2d 852, 868 (Fla.2007). Because a postconviction court’s decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003). We conclude that the postcon-viction court’s summary denial of Marek’s second successive motion was not erroneous. Each of Marek’s claims is legally insufficient or, because it could have been or was raised in a prior proceeding, proee-durally barred.

A. Arbitrary Sentencing

In his first claim on appeal, Marek argues that his sentence is unconstitutionally arbitrary under Furman because (1) the State argued inconsistent theories in his trial and the trial of codefendant Wigley; (2) Marek’s claim of ineffective assistance of penalty-phase counsel, raised in his initial postconviction motion, should be reevaluated; and (3) Florida’s clemency process is inadequate. These arguments were raised in Marek’s second successive post-conviction motion, and the postconviction court expressly addressed the first two arguments in its order denying relief.

The postconviction court did not err in concluding that the prosecutor did not pursue inconsistent theories at trial and that Marek’s argument on this point was merit-less. Marek’s argument that his death sentence is unconstitutionally arbitrary as a result of the State taking inconsistent positions about whether Marek or his co-defendant was the dominant actor in the kidnapping and murder is insufficiently pleaded, procedurally barred, and based on the record before us, without merit.

Marek’s inconsistent-theories argument is insufficiently pleaded under Florida Rule of Criminal Procedure 3.851(d)(2). Marek does not (1) explain why the facts upon which the argument is predicated were unknown and could not be ascertained by the exercise of due diligence or (2) cite to a newly established fundamental constitutional right that applies retroactively.

In his direct appeal, Marek argued that his death sentence was “cruel and unusual, arbitrary, and unequal” in light of codefen-dant Wigley’s life sentence. Marek, 492 So.2d at 1058. That claim on direct appeal indicates that Wigley was sentenced prior to 1986. Yet Marek did not raise this claim of inconsistent theories until the instant postconviction proceeding. Marek does not explain why the prosecutor’s theory in Wigley’s case could not have been discovered previously by the exercise of due diligence.

Furthermore, we conclude that Marek’s argument is not based on any new constitutional right. Marek asserts that in Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2898, 162 L.Ed.2d 143 (2005), and Raleigh v. State, 982 So.2d 1054 (Fla.2006), the Supreme Court and this Court recognized that the State’s pursuit of inconsistent theories against codefendants constitutes a violation of due process. Marek is incorrect. The postconviction court’s order correctly notes that this Court’s recent decision in Walton v. State, 3 So.3d 1000, 1005-06 (Fla.2009), forecloses Marek’s argument. In Bradshaw, the Supreme Court held that the allegedly inconsistent prosecution theories could not have affected Stumpfs conviction and declined to address whether the allegedly inconsistent theories affected sentencing. 545 U.S. at 187, 125 S.Ct. 2398. The next year, in Raleigh, 932 So.2d at 1065-67, this Court rejected an inconsistent-theories claim on the basis that the State’s theories were not inconsistent, without addressing whether such a due process right was established by Bradshaw. Most recently, in Walton this Court expressly held that Bradshaw “did not recognize a new fundamental constitutional right that applies retroactively.” Walton, 3 So.3d at 1005. See also Byrd v. State, 34 Fla. L. Weekly S307, S307, — So.3d -, -, 2009 WL 857419 (Fla.Apr. 2, 2009) (“Clearly, Stumpf did not articulate a new rule of law, and this successive postconviction claim is therefore barred.”). Thus, Marek’s argument is procedurally barred.

Finally, Marek has not established that the State actually argued inconsistent theories. Based on the trial excerpts included in Marek’s motion for rehearing filed in the postconviction court and his appellate brief filed here, Marek has not demonstrated that in different trials the State attributed specific acts to different defendants or any such direct inconsistency.

The postconviction court also did not err in denying Marek’s argument that his previously raised claim of ineffective assistance of counsel should be reevaluated under the standards enunciated in Rompilla^ Wiggins, and Williams. Contrary to Ma-rek’s argument, the United States Supreme Court in these cases did not change the standard of review for claims of ineffective assistance of counsel under Strickland. In Rompilla, the Court expressly concluded, based on the factual record in that case, that trial counsel’s failure to review the defendant’s prior conviction file for mitigation evidence constituted ineffective assistance of counsel. 545 U.S. at 390, 125 S.Ct. 2456. Similarly, in Wiggins, the Court concluded that given the information trial counsel had regarding Wiggins’ childhood, their failure to broaden the scope of their investigation into possible mitigating factors constituted ineffective assistance of counsel as defined in Strickland. Indeed, the Wiggins Court began its analysis by stating that Strickland “established the legal principles that govern claims of ineffective assistance of counsel.” 539 U.S. at 521, 123 S.Ct. 2527. Finally, the Williams Court also concluded that trial counsel’s failure to discover and present mitigating evidence violated Williams’ rights as defined in Strickland. As the Supreme Court explained in Williams, “It is past question that the rule set forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ ” 529 U.S. at 391, 120 S.Ct. 1495. Furthermore, we are not aware of any reported decision, and Marek has not identified any, adopting the view that Rompilla, Wiggins, and Williams modified the standard of review governing ineffective assistance of counsel claims.

Moreover, Marek’s argument is procedurally barred because he previously litigated this issue. In his appeal from the denial of his prior successive postconviction motion, Marek argued that his claim of ineffective assistance of counsel should be reexamined under those cases because “Judge Kaplan’s partiality impaired his ability to follow these standards in evaluating prejudice in Mr. Marek’s case.” In his accompanying habeas petition, Marek argued that the “Court’s prior decision affirming the denial of [his] claim that he received ineffective assistance at the penalty proceeding is in error in light of the recent decision[s] by the United States Supreme Court in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).” Marek is not entitled to relitigate this issue.

Next, Marek argues that the post-conviction court’s denial of his second successive motion was erroneous because, as explained in the ABA Report, Florida’s clemency process fails to correct for arbitrary factors in the capital sentencing scheme. Marek asserts that the clemency process is one-sided, arbitrary, and stan-dardless. Again, his argument is without merit. In Rutherford v. State, 940 So.2d 1112 (Fla.2006), the defendant — relying on the ABA Report — argued that Florida’s clemency process is arbitrary and capricious. This Court rejected the argument “that the ABA Report requires us to reconsider our prior decisions rejecting constitutional challenges to Florida’s clemency process.” Id. at 1122.

Moreover, Marek and the State agree that a full clemency proceeding was conducted in 1988 and that public records demonstrate that in 2008, the Governor corresponded with the Florida Parole Commission about Marek. Marek’s death warrant expressly states that “it has been determined that Executive Clemency, as authorized by Article IV, Section 8(a), Florida Constitution, is not appropriate.” Previously, in Bundy v. State, 497 So.2d 1209, 1211 (Fla.1986), this Court, in rejecting Bundy’s contention that he was entitled to time to prepare and present an application for clemency before execution, explained that

[i]t is not our prerogative to second-guess the application of this exclusive executive function. First, the principle of separation of powers requires the judiciary to adopt an extremely cautious approach in analyzing questions involving this admitted matter of executive grace. As noted in In re Advisory Opinion of the Governor, 334 So.2d 561, 562-63 (Fla.1976), “[t]his Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government.”

Bundy, 497 So.2d at 1211 (some citations omitted); accord Glock v. Moore, 776 So.2d 243, 253 (Fla.2001); Provenzano v. State, 739 So.2d 1150, 1155 (Fla.1999). Marek has not presented any reason that this Court should depart from these precedents.

B. Florida’s Lethal Injection Procedures

Marek’s next claim challenges the constitutionality of Florida’s lethal injection procedures. We have repeatedly rejected similar claims and have upheld the constitutionality of Florida’s lethal injection procedures. See Tompkins v. State, 994 So.2d 1072, 1081 (Fla.2008), cert. denied, — U.S. -, 129 S.Ct. 1305, 173 L.Ed.2d 483 (2009); Power v. State, 992 So.2d 218, 220-21 (Fla.2008); Sexton v. State, 997 So.2d 1073, 1089 (Fla.2008); Schwab v. State, 969 So.2d 318, 321-25 (Fla.2007), cert. denied, — U.S.-, 128 S.Ct. 2486, 171 L.Ed.2d 777 (2008); Lightbourne v. McCollum, 969 So.2d 326, 349-53 (Fla.2007), cert. denied, — U.S. -, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008). We also have held the procedures constitutional under the requirements of Baze v. Rees, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). See Ventura v. State, 2 So.3d 194, 200 (Fla.2009) (“Florida’s current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court (and would easily satisfy the intent-based standard advocated by Justices Thomas and Sealia).”), petition for cert, filed, No. 08-10098 (U.S. Apr. 16, 2009); Henyard v. State, 992 So.2d 120, 130 (Fla.2008), cert. denied, — U.S. -, 129 S.Ct. 28, 171 L.Ed.2d 930 (2008). Marek has not presented any reason why we should not follow the same course in his case.

Marek argues that he cannot be denied an evidentiary hearing based on Lightb-oume because he was not a party in that case. In support of this argument, he cites Teffeteller v. Dugger, 676 So.2d 369 (Fla.1996), for the proposition that a defendant’s collateral claim cannot be denied on the basis of evidence presented when neither he nor his counsel was present. Ma-rek lists four witnesses he would have called if granted an evidentiary hearing. However, we rejected this exact argument in Tompkins, and we reject it again here.

Accordingly, we hold that the postcon-viction court did not err in summarily denying this claim.

C. Motion to Amend

Marek’s final claim is that the post-conviction court erred in denying his motion to amend his second successive post-conviction motion to raise two additional claims. First, Marek sought to present a claim that the length of time he has spent on death row, twenty-five years since he was sentenced and twenty-three years since his sentence became final, is cruel and unusual punishment in violation of the Eighth Amendment. Second, Marek sought to present a claim based on Caper-ton, which concerns the disqualification of a judge due to a relationship with a litigant. The denial of a motion to amend a postconviction motion is reviewed for abuse of discretion. Walton, 3 So.3d at 1012 (citing Huff v. State, 762 So.2d 476, 481 (Fla.2000)). Because Marek’s claims lack merit, we hold that the postconviction court did not abuse its discretion in denying Marek’s motion to amend.

With regard to the claim about the length of time Marek has spent on death row, we have previously rejected similar arguments. In Tompkins, 994 So.2d at 1085, we held that twenty-three years on death row did not constitute cruel and unusual punishment. We explained that “this Court recognized that ‘no federal or state court has accepted the argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay.’ ” Id. (quoting Booker v. State, 969 So.2d 186, 200 (Fla.2007)). In this case, Marek has contributed to the delay of his execution by filing several postconviction motions and habeas petitions. He has also been a party to several class action proceedings. As we stated in Tompkins, “He cannot now contend that his punishment has been illegally prolonged because the delay in carrying out his sentence is in large part due to his own actions in challenging his conviction and sentence.” Id.

With regard to Caperton, Marek contends that when the Supreme Court decides Caperton, the decision may demonstrate that he was deprived of due process of law when Judge Kaplan presided over the 1988 evidentiary hearing in Ma-rek’s initial postconviction proceedings. This claim is legally insufficient and merit-less. In Caperton, the West Virginia Supreme Court overturned a lower court’s decision against a coal company, with Justice Benjamin voting with the majority. The issue before the Supreme Court in Caperton concerns whether a state supreme court justice’s participation in a case in which a principal financial campaign supporter was a party violated the Due Process Clause of the Fourteenth Amendment. The factual predicate underlying Marek’s motion to disqualify Judge Kaplan, however, is distinguishable from that at issue in Caperton. Judge Kaplan presided over Marek’s trial and initial postconviction motion. In 1997, almost ten years later, he recused himself from presiding over Marek’s successive postconviction motion to avoid any appearance of impropriety resulting from his recently developed close friendship with Marek’s trial counsel. Marek claims that Judge Kap-lan’s recusal from the latter proceedings required his recusal from the prior post-conviction proceedings held a decade earlier. In addition to his claim being speculative, any forthcoming decision in Caperton likely will be irrelevant to Marek’s case. Finally, as the State points out, we have previously rejected a similar argument that this Court should delay an execution in light of a pending Supreme Court case where the facts and issue were much closer. See King v. State, 808 So.2d 1237, 1246 (Fla.2002) (“We are aware that the United States Supreme Court very recently granted certiorari in State v. Ring[, 200 Ariz. 267, 25 P.3d 1139 (2001) ]; however, we decline to grant a stay of execution following our precedent on this issue, on which the Supreme Court has denied cer-tiorari.” (citation omitted)). Accordingly, we hold that the postconviction court did not abuse its discretion in denying Marek’s motion to amend.

III. CONCLUSION

For the reasons stated above, we affirm the postconviction court’s order summarily denying Marek’s second successive motion for postconviction relief and denying Ma-rek’s motion to amend.

It is so ordered.

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

LEWIS, J., did not participate.

      . Marek’s codefendant, Raymond Wigley, was tried separately and sentenced to life in prison for his role in the kidnapping and murder of Simmons. Wigley was later murdered in prison by John Blackwelder. See Blackwelder v. State, 851 So.2d 650 (Fla.2003) (affirming Blackwelder's conviction for first-degree murder and his sentence of death).

        . Moreover, Marek has not followed the procedure for raising a claim of inconsistent trial theories. In Johnson v. State, 660 So.2d 648, 653 (Fla.1995), this Court set out the procedure to be followed when a claim requires consideration of a separate trial record:
      Effective as of [July 13, 1995], we hold that the proper method of bringing relevant matters before this Court that are contained in separate records of pending cases is by way of a motion to supplement the record, not by a request for the taking of judicial notice.... In the future, however, any attempt to cross-reference separate records of pending cases will constitute grounds for the opposing party to move to strike the cross reference under the holdings of Wuornos [v. State, 644 So.2d 1012 (Fla.1994)] and Jackson [v. State, 575 So.2d 181 (Fla. 1991) ]. This Court likewise may strike such a cross reference sua sponte. Any order striking a cross reference shall constitute automatic notice to counsel that the record must be supplemented in keeping with rule 9.200(f)(2), and the failure to supplement then will work a procedural bar as to the matters at issue in the improperly cross-referenced material.
      (Footnotes omitted.) In Smith v. State, 998 So.2d 516, 525-26 (Fla.2008), cert. denied, U.S.-, 129 S.Ct. 2006, 173 L.Ed.2d 1101 (U.S. Apr. 20, 2009) (No. 08-8829), this Court declined to review a claim that the Stale had used inconsistent trial theories where the defendant attempted to incorporate by reference the record from his codefendant's case. We expressly held that the Johnson procedure is applicable to such claims. Id. at 525.

      . To the extent that Marek relies on Cone v. Bell, - U.S. -, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009), to argue that this claim is not barred, his argument is without merit. In Cone, the Supreme Court held that the Tennessee courts’ procedural rejection of a claim, where the Tennessee courts never addressed the merits of the claim, did not bar federal habeas review. Id., 129 S.Ct. at 1780, 1786. The Supreme Court’s decision has no impact on the Florida courts' policy of not allowing defendants to relitigate claims in state court that have been adjudicated previously on their merits.


text:
    Jaime L. PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-75.
    District Court of Appeal of Florida, Fifth District.
    April 3, 2009.
    Jaime L. Perez, Avon Park, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jaime L. Perez appeals the denial of his motion for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record demonstrates that Perez may be entitled to additional jail credit, we reverse.

While Perez was serving drug offender probation imposed in an Orange County case, he was arrested in Volusia County on unrelated charges and for violating the probation imposed in Orange County. Perez alleged that he remained in the Vo-lusia County Jail for a total of 285 days before being transferred to Orange County for resolution of the VOP charge. The Orange County court revoked Perez’s probation and sentenced him to 36 months in prison. The trial court, however, only awarded Perez jail credit for 58 days.

Perez filed a rule 3.800(a) motion seeking additional jail credit. A jail credit claim may be raised pursuant to rule 3.800(a) if the record shows an entitlement to additional credit. See State v. Mancino, 714 So.2d 429 (Fla.1998). The record shows on its face that Perez was arrested without a warrant in Volusia County on the charge of violating the drug offender probation imposed in Orange County. Although a VOP warrant is the normal procedure for arresting a probationer, Perez was arrested for violating probation without a warrant, and therefore was held in custody pursuant to that arrest. If he was not sentenced on the Volusia County charges or if his sentence in Orange County was ordered to be served concurrently with the Volusia County sentence, he would be entitled to jail credit for the time held in Volusia County. See Elkins v. State, 884 So.2d 499 (Fla. 5th DCA 2004).

As we did in Williams v. State, 4 So.3d 728 (Fla. 5th DCA 2009), we reverse the order denying Perez’s rule 8.800(a) motion and remand to the trial court to reconsider this issue.

REVERSED and REMANDED.

PALMER, C.J., TORPY and EVANDER, JJ., concur.

      . Section 948.06(l)(a), Florida Statutes, authorizes any law enforcement officer who is aware of the probationary status of a probationer and who has reasonable grounds to believe that the probationer has violated his or her probation in a material respect to arrest that person without a warrant.


text:
    S.T., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5093.
    District Court of Appeal of Florida, First District.
    April 3, 2009.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant’s juvenile disposition order which withheld adjudication of delinquency failed to specify the length of the appellant’s two terms of probation, including whether they are to be served consecutively or concurrently. The appellant was entitled to be informed of the length of her probation. See N.W. v. State, 767 So.2d 446 (Fla.2000); J.M.W. v. State, 935 So.2d 630 (Fla. 2d DCA 2006). Because the trial court did not file its order ruling on the appellant’s Florida Rule of Juvenile Procedure 8.135(b)(2) motion to clarify the disposition order until more than thirty days after the motion was filed, the amended final disposition order filed January 9, 2009, is a nullity. See D.D.M. v. State, 979 So.2d 1131 (Fla. 1st DCA 2008); O.H. v. State, 948 So.2d 79 (Fla. 2d DCA 2007). Thus, the disposition order is reversed and the case is remanded for entry of a corrected order.

ALLEN, WOLF, and DAVIS, JJ., concur.