author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Timothy Allen PATRICK, Respondent.
    No. SC09-2057.
    Supreme Court of Florida.
    June 23, 2011.

      John F. Harkness, Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, FL, and Troy Matthew Lovell, Bar Counsel, The Florida Bar, Tampa, FL, for Complainant.
    David A. Maney and Lee S. Damsker of Maney, Damsker, Jones, and Kuhlman, P.A., Tampa, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Timothy Allen Patrick. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed herein, we approve the referee’s findings of fact, recommendations of guilt, recommended sanctions, and award of costs to The Florida Bar.

FACTS

In November 2009, The Florida Bar filed a complaint against Respondent alleging that he violated Rules Regulating the Florida Bar 3-4.3 (general misconduct); 4-1.8(e) (advancing costs of litigation to client); and 4-S.4(c) (conduct involving dishonesty, deceit, fraud, or misrepresentation). A referee was appointed who held hearings, considered evidence, and submitted a report to the Court in which he made the following findings and recommendations.

Respondent represented Dr. Newman, a chiropractor, on two PIP claims against Progressive Insurance Company (“Progressive”) regarding the treatment of Mr. Riley (“Riley”) and Mrs. Reem Riley (“Reem Riley”). Respondent represented Newman pursuant to a legal services contingency fee contract. The contract provided that if Newman prevailed, the insurance company would be required to pay Newman’s attorney’s fees to Respondent. If Newman did not prevail, Newman would not owe Respondent any attorney’s fees. Thus, Newman would not be responsible for payment of attorney’s fees to Respondent. On the other hand, if the insurance company prevailed, the contract provided that Newman alone could be responsible for Progressive’s attorney’s fees and costs.

The referee found that the “claim involved a $24.00 claim for each of the two Rileys, i.e. a total of $48.00.” The entire benefit Newman could gain from the case was payment of $48 and a clear statement to Progressive that he would pursue claims and that the claims were valid. By the time the case reached mediation, Respondent had spent approximately sixty hours working on it. His normal billing rate was $225 per hour.

If an insured is ultimately found liable for contesting a PIP claim, the statutory penalties of interest and attorney’s fees would be applicable. If the claim was determined to be unfounded, Newman could have been responsible for Progressive’s attorney’s fees.

At mediation, Progressive offered $2500 to settle the claim. By this offer, Newman would have been paid in full ($48) and would have established the desired precedent that Progressive must pay these claims. The referee found that “Newman could not have gained or benefited any more than the offer made at mediation.” However, if Newman accepted the offer, Respondent would have been compensated less than $2,500 for his sixty hours of work. Newman rejected the settlement offer. The reason for the rejection is the primary factual dispute in this case.

Newman testified that he was inclined to accept the offer, as it would have given him everything he could have received in the case and eliminated any risk that he would be liable for Progressive’s fees and costs. According to Newman, Respondent raised the issue that he had spent sixty hours on the case and that this would be a low amount of compensation for him. Newman stated that Respondent wanted to proceed with the case, and indicated there was a high likelihood that the claim would be upheld and then Respondent could be appropriately compensated. According to Newman, Respondent told him that Respondent would be responsible for all of Progressive’s fees and costs if Progressive prevailed. Newman testified that he rejected the mediation offer based upon Respondent’s representations.

Respondent admitted that he did raise the issue of the time he had invested in the case, but he denied advising Newman to reject the claim and denied offering to be responsible for Progressive’s possible attorney’s fees or costs. The referee found that Respondent’s testimony regarding the decision to reject the mediation offer was vague and incomplete, and that there were direct conflicts between Respondent’s and Newman’s testimonies.

Because the offer was rejected at mediation, the two PIP claims proceeded to trial and appeal. The Reem Riley case proceeded to a non-jury trial. Newman’s claim was upheld at the trial and he was awarded $24 in damages. Also, he was entitled to attorney’s fees and costs. Respondent had expended 235.5 hours for the Reem Riley $24 PIP claim. The court awarded attorney’s fees of $120,772.50, as well as costs, on the $24 PIP claim.

As to the Riley claim, Progressive was awarded a Final Summary Judgment and attorney’s fees. The court awarded $9,000 in fees to Progressive, plus $1,200 in costs. The court authorized a setoff for these claims that would have netted Respondent approximately $110,000. Progressive appealed the award and Newman filed a cross-appeal.

Respondent “retained” another attorney, Mr. Saltsgaver, to represent Newman in the appeal. Pursuant to the contingent fee agreement, Newman was not responsible for payment of any fees to Saltsgaver.

Progressive prevailed on both appeals. The award of attorney’s fees to Respondent was set aside. Newman was legally responsible for Progressive’s fees and costs.

Respondent then retained the services of another attorney, Mr. Caldevilla, to pursue additional appellate remedies. Respondent signed a fee engagement letter with Caldevilla, but Newman never signed the engagement letter. Caldevilla sent periodic statements to Respondent and Newman, with Respondent paying Caldevilla approximately $5800 in fees. When Calde-villa contacted Newman regarding fees owed, Newman indicated that he had never signed the fee engagement letter and was not responsible for any of Caldevilla’s fees. At that point, Caldevilla’s office staff examined the office’s records and confirmed that the fees had been paid by Respondent, not Newman. Caldevilla contacted Respondent regarding these payments, and Respondent feigned surprise that his office had been paying Caldevilla’s fees. The referee found this representation by Respondent to Caldevilla was “in direct contravention of the clearly established evidence in this case that Patrick accepted responsibility for payment of at least part of Caldevilla’s fees and authorized payment thereof. The representations by Patrick to Caldevilla regarding surprise that he had been paying part of the fees was false and misleading.”

Progressive prevailed on both of these appeals. Progressive sought payment from Newman of the fees that were awarded to Progressive.

The referee had to determine “whether Newman rejected the offer to settle and accepted responsibility of the potential liability for Progressive’s attorney’s fees or whether Patrick induced Newman to reject the offer so that Patrick could pursue full payment of attorney’s fees and costs herein and Patrick assume responsibility for Progressive’s attorney’s fees in the perceived unlikely event that Progressive ultimately prevailed in the case.” The referee found that Newman rejected the offer of settlement based upon Respondent’s inducements so Respondent could pursue the full claim for attorney’s fees. The referee also found that Respondent told Newman that if Progressive prevailed, Respondent would be responsible for Newman’s fees and costs to Progressive. The referee specifically rejected Respondent’s assertions that he did not induce and encourage Newman to reject the offer of settlement and did not indicate to Newman that Respondent would be responsible for Progressive’s fees and costs if Progressive prevailed.

Further, the referee found that Newman’s actions after the rejection of the settlement offer were consistent with Newman’s reliance on Respondent’s assurance that he would have no ultimate risk because Respondent had assumed all risk of continuing the prosecution of these small PIP claims. Newman had nothing further to gain. Absent Respondent’s assurances, Newman faced significant risk in having the cases proceed after mediation. Also, Newman’s decision not to sign Caldevilla’s fee engagement letter and refusal to pay any fees are consistent with this position.

In comparison, the referee found that Respondent’s explanations of the rejection of the offer “defy reason, logic, and an attorney’s duty to zealously represent a client.” Respondent’s claim that he merely let Newman decide without providing a recommendation falls below any reasonable level of competency. Respondent should have advised Newman to accept the offer because the offer gave Newman everything Newman could have gained in the case. The referee stated:

The entire motivation to reject the offer at mediation and proceed with this claim was based upon Patrick’s desire to be fully compensated for the time, money, and effort he had placed in this case. In order to be able to do so, he induced and convinced Newman to reject the offer by accepting all of the additional risk. Patrick clearly placed his personal interest of being compensated above the interest of his client. Patrick wrongfully advised and induced his client to reject an offer for full compensation so that Patrick could personally benefit. Patrick wrongfully agreed to and paid approximately $5,800.00 towards Caldevilla’s fees.

Respondent denied making this inducement to Newman and refused to pay any of Progressive’s fees or costs that were levied upon Newman.

The referee found that Respondent’s conduct, which includes placing his personal interest above the interests of his client, inducing his client to reject an offer that could subject his client to significant liability and his refusal to abide by his representations to Newman significantly damaged his client.

Respondent’s representations to Newman made Respondent the primary beneficiary of any successful litigation, while imposing substantial risk on Newman, his client, in the event of failure. Respondent engaged in two instances of inducing Newman to continue the litigation, even though further litigation could not provide any additional benefit to Newman. Respondent induced Newman to continue the litigation so Respondent could pursue more promising compensation.

Recomviendations as to Guilt. The referee recommended that Respondent’s unethical promise to indemnify Newman violated rules 3^4.3 (general misconduct) and 4-1.8(e) (improper financial assistance to client).

Also, Respondent improperly continued the litigation by agreeing to pay and then actually paying a portion of Caldevilla’s attorney’s fee. Based on this misconduct, which is uncontroverted, the referee recommended finding that Respondent is guilty of violating rules 3-4.3(general misconduct) and 4-1,8(e) (improper financial assistance to client).

Respondent was also charged with violating rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee did not recommend finding a violation of this rule.

Disciplinary History. Respondent was the subject of two previous disciplinary matters. One of those cases, Florida Bar v. Patrick, 954 So.2d 28 (Fla. Mar. 8, 2007) (No. SC06-178), is relevant to the present case because it shows Respondent has a history of placing his own financial interests above those of his clients. In that case, the Court issued an order imposing a public reprimand and directing Respondent to pay $13,000 in restitution.

In one count, Respondent had failed to inform his client, Mrs. Whitney, that the insurance company had received a summary judgment against her. Respondent pursued an appeal without telling the client. He lost the appeal, and the insurance company obtained a judgment against the client for approximately $15,300 in attorney’s fees and costs.

In another count, Respondent received an offer from Progressive on behalf of his client, Dr. Tran. Respondent did not communicate the offer to Tran, but told Progressive that Tran would accept the offer if Progressive paid Respondent’s attorney fees of $1300 and costs. Progressive and Respondent did not reach an agreement regarding the amount of attorney’s fees, and the case proceeded to litigation. Thereafter, Respondent twice made offers to Progressive, without consulting with Tran, which Progressive rejected. Eventually, Tran had to pay Progressive’s attorney’s fees and costs of $13,000.

Aggravating and Mitigating Factors. The referee found two aggravating factors: prior disciplinary offenses (specifically noting that Respondent’s misconduct in the current case is remarkably similar to the facts in No. SC06-178); and dishonest or selfish motive (Respondent placed his desire to collect attorney’s fees and costs above the interests of his client, Newman, to the detriment of the client). The referee found one mitigating factor, good character or reputation.

Recommended Sanctions and Award of Costs. After considering the Florida Standards for Imposing Lawyer Sanctions and case law, the referee recommended that Respondent be suspended for one year and that Respondent must successfully complete an ethics course and pass the ethics portion of the bar examination. The referee awarded costs to The Florida Bar in the amount of $3,873.15.

On Review. Respondent petitioned for review, challenging the referee’s report on three issues.

ANALYSIS

First, Respondent challenges the referee’s finding of fact that Respondent orally promised to indemnify Newman for the opposing party’s attorney’s fees and costs. The Court’s standard of review for evaluating a referee’s factual findings is as follows: This Court’s review of such matters is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998). Further, a party cannot meet this burden by simply pointing to contradictory evidence when there is also competent, substantial evidence in the record to support the referee’s findings. Fla. Bar v. Committe, 916 So.2d 741, 746 (Fla.2005); Fla. Bar v. Nowacki, 697 So.2d 828, 832 (Fla.1997).

Respondent has not met his burden. He asserts that the referee’s findings are not supported, but does so by pointing to his own testimony. Thus, he is pointing to the contradictory evidence that the referee thoroughly considered. Further, the referee specifically acknowledged in his report that there was conflicting evidence. Thereafter, the referee explicitly found that Newman was a credible witness and Respondent was not. “Because the referee is in the best position to judge the credibility of the witnesses, we defer to the referee’s assessment and his resolution of the conflicting testimony.” Fla. Bar v. Elster, 770 So.2d 1184, 1185 (Fla.2000); see also Fla. Bar v. Carricarte, 733 So.2d 975, 978 (Fla.1999) (the referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect).

In making this credibility determination, the referee noted that Newman’s testimony was consistent with the events that occurred. Newman called Respondent and had a heated discussion with him regarding Respondent’s promise to pay Progressive’s fees and costs. Also, Newman did not make any payments towards Cal-devilla’s fees, even though Caldevilla was sending him monthly bills. Further, Respondent’s office was paying the bills from Caldevilla. Thus, the actual events that took place corroborate Newman’s testimony.

Accordingly, based on competent substantial evidence in the record and the referee’s credibility finding, we conclude that the referee’s finding that Respondent orally promised to indemnify Newman for Progressive’s attorney’s fees and costs is supported.

Second, Respondent asserts that the referee’s factual findings are insufficient to support the recommendations as to guilt. The Court has repeatedly stated that the referee’s 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). Thus, Respondent is challenging the referee’s findings of fact and legal conclusions. Initially, the Court examines the record to determine whether the facts are supported, as the findings of fact are the first step in determining whether a respondent has violated the disciplinary rules. Next, the Court determines whether those facts support the legal conclusion regarding the recommendations as to guilt.

Respondent asserts that the Court should disapprove the referee’s recommendation that he violated rule 4-1.8(e) (advancing costs of litigation to client). The critical facts are admitted regarding this issue — Respondent agreed to pay at least a portion of Caldevilla’s fees. Further, Respondent’s firm sent checks to pay those fees. Thus, the referee’s findings of fact are supported by competent substantial evidence (testimony and the firm’s checks), as Respondent paid for the Calde-villa appeals.

The determinative issue is whether the payments violated rule 4-1.8(e). In Florida Bar v. Jasperson, 625 So.2d 459 (Fla.1993), the respondent was found guilty of violating rule 4-1.8(e). In Jasperson, the clients retained the respondent to file a bankruptcy petition to prevent the sale of their residence through a scheduled foreclosure sale. Through an error of the respondent’s office, which respondent admitted, the bankruptcy petition was not filed until approximately one hour after the foreclosure sale of the home. Although other parties were interested in the property, the respondent offered to purchase the home. The clients sold the home to the respondent “in exchange for his paying off the foreclosure judgment, paying off the clients’ unsecured indebtedness, and giving the clients $5,000 cash.” Id. at 461. The respondent did not inform the bankruptcy court of this event. In fact, the respondent proceeded with the bankruptcy case, including filing a second bankruptcy petition. When the bankruptcy court learned of the sale and the respondent’s failure to inform that court of these events, the bankruptcy court fined the respondent $20,000 and referred the matter to The Florida Bar. In an order, the bankruptcy court stated:

Once the contract for sale was entered and ultimately consummated, the only possible reason for continuing with the bankruptcy case was protection of Jas-person’s interests in the property. It is clear at that point Debtors could gain no further advantage by continuation of the case since all the benefits normally obtained by a Chapter 13 case had been realized through the contract for sale of the property. Furthermore, had the Court chosen to convert this case to one under Chapter 7, the potential negative ramifications on Debtors of continuing the bankruptcy case could have. been considerable. Thus, it is clear Jasper-son’s interests not only interfered with his representation of Debtors, they completely dominated all actions taken in the bankruptcy case.
Jasperson has argued repeatedly that during its entire pendency, the bankruptcy case served both himself and Debtors. He has stated the bankruptcy case was continued in order to protect Debtors’ equity in their home by permitting Debtors an opportunity to redeem their property. He has also contended if the redemption of the property could not be accomplished either through the bankruptcy ease or the state court proceedings, the money paid under the contract for sale would be returned and Debtors would proceed towards proposal of a plan. These assertions are not supported by the contract for sale, the statements in Debtors’ Affidavit or common sense....
It follows from this reasoning and from a review of the various pleadings filed in this case and in the adversary proceeding that each document filed after the execution of the contract for sale was filed for the improper purpose of avoiding malpractice liability on the part of Jasperson and protecting Jasperson’s interests in the property.

Id. at 461-62. Additionally, the bankruptcy court chastised Jasperson for filing documents containing misleading statements and called the ongoing bankruptcy proceeding a “mere fiction sustained solely for Jasperson’s benefit.” Id. at 462.

While Respondent asserts that rule 4-1.8(e) permitted him to fund the appeal of his client’s case by another attorney, Jasperson undermines his position. Respondent asserts that he continued the appellate cases in order to benefit his client. However, like Jasperson, Respondent proceeded with the cases to benefit himself. In both the present case and Jasperson, the clients had little or nothing to gain by proceeding with the cases. In fact, Newman was exposed to more liabilities by proceeding with the cases. Further, both respondents proceeded with the cases, at least in part, to rectify significant mistakes that they had made. Jasperson had missed the deadline, then engaged in a conflict of interest by buying the house from his clients and paying them an additional $5000 — he used his funds in an attempt to cover his mistake and placate his clients. Similarly, Respondent had encouraged his client to proceed with the cases and not accept the offer at mediation because Respondent wanted to be paid his attorney’s fees. When the results were not entirely favorable at the lower court level and when Saltsgaver lost the appeal, Respondent agreed to pay part of Caldevilla’s appellate attorney’s fees to encourage Newman to proceed with another appeal. Based on Jasperson, we conclude that Respondent violated rule 4 — 1.8(e) by telling Newman that he would pay part of the appellate attorney’s fees if Newman would proceed with the cases on appeal, and then by paying a portion of those fees.

Next, Respondent argues that the phrase “expenses of litigation” in rule 4-1.8(e) permitted him to pay the appellate attorney’s fees. While not binding, the comment to the rule does not support this argument. The comment provides:

Lawyers may not subsidize lawsuits ... brought on behalf of their clients, including making ... loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in litigation. These dangers do not warrant a prohibition on a lawyer advancing a client court costs and litigation expenses, including the expenses of medical examination and the reasonable costs of obtaining and presenting evidence ....

R. Regulating Fla. Bar 4-1.8 cmt. (2006).

The comment plainly states that lawyers should not subsidize their clients’ lawsuits (this does not refer to contingent fee cases, as those are addressed elsewhere in the rules). By his conduct, Respondent developed “too great a financial stake in the litigation.” Respondent had not been paid for his lower court efforts, so he decided to use his own funds to pursue the appellate cases through Caldevilla, as Respondent wanted to be awarded his attorney’s fees.

Further, the comment explains the phrase “litigation expenses” by providing an example of permissible litigation costs: the reasonable costs involved in obtaining and presenting evidence. The payment of another attorney’s fees is not listed as a permissible litigation expense. Thus, the rule addresses recognized costs regarding evidence, not the fees of another attorney.

We conclude that Respondent violated rule 4-1.8(e) by paying a portion of the fees of appellate counsel. The determinative fact is that Respondent funded Calde-villa’s work because Respondent wanted to continue the litigation and win the cases. Although this arrangement could be beneficial for both Newman and Respondent, the fact that Respondent moved from representing his client in the lower court to being an individual with a significant stake in the outcome of the appeal and paying a noteworthy portion of another person’s attorney’s fees to pursue that appeal shows a violation of the rule. This is the very type of situation that the rule seeks to prevent. Respondent crossed the line from being an advocate for his client (at the trial level) to becoming an interested party (at the appellate level) by using his money to pay another attorney to pursue the cases so Respondent could receive his attorney’s fees. Accordingly, we approve the referee’s recommendation that Respondent be found guilty of violating rule 4-1.8(e).

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

In Florida Bar v. Rotstein, 835 So.2d 241 (Fla.2002), the respondent was the subject of three counts of disciplinary misconduct. In two of the counts, Rotstein had taken action against his clients in order to pursue his own financial interests. One client had retained Rotstein to represent her in a suit against a restaurant. The case settled at mediation for $500 and the client executed some of the settlement documents, but she refused to endorse the settlement check when she discovered that her proceeds would be $12.15. Rotstein filed a motion to enforce settlement without notifying the client, and without her knowledge or consent, thereby knowingly taking a position adverse to his client and violating the rules. Rotstein received a one-year suspension.

The facts in Rotstein are more egregious than the present case and there were slightly more rule violations found in Rotstein. However, like Rotstein, the instant Respondent knowingly engaged in actions that were adverse to his client in the very matters in which he was representing him. Rotstein, 835 So.2d at 245. Respondent manipulated his client into proceeding with the case, which was detrimental to Newman, merely so Respondent could have an opportunity to collect attorney’s fees and costs. We have stated that “[dishonesty and a lack of candor cannot be tolerated by a profession that relies on the truthfulness of its members.” Fla. Bar v. Korones, 752 So.2d 586, 591 (Fla.2000) (quoting Fla. Bar v. Graham, 605 So.2d 53, 56 (Fla.1992)).

In addition, Respondent has a significant aggravating factor — a disciplinary history for similar misconduct. The Court has stated that “cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct.” Fla. Bar v. Walkden, 950 So.2d 407, 410 (Fla.2007). The referee specifically noted that when Respondent represented his clients Whitney and Tran in the previous disciplinary case, his conduct was extremely similar to that in the current case. In that prior disciplinary case, Respondent’s attempts to obtain attorneys fees for representation of PIP claims were similar to his actions in representing Newman, as Respondent placed his interests above those of his clients. The facts of the present disciplinary proceeding show that Respondent deliberately proceeded with Newman’s cases, knowing that he had more of an interest in winning the appeal by Caldevilla than Newman. For that very reason, Respondent was willing to pay Caldevilla’s fees to pursue the appeal. Also, Respondent did not accurately inform Newman of the possible harm that could result from proceeding with the eases, and Newman did eventually incur harm as he was responsible for significant fees when the appeal was lost and Respondent did not fulfill his promise to indemnify his client. Respondent’s actions caused Newman to be held hable in an approximate amount of $200,000. For these reasons, a more severe sanction is appropriate. See Fla. Bar v. Temmer, 753 So.2d 555, 559 (Fla.1999) (the respondent’s prior discipline was for similar misconduct, so his disciplinary history was particularly aggravating). Respondent has failed to realize, despite the previous case, that the Court will not tolerate attorneys who place their financial desires above the interests of their clients.

Respondent has engaged in serious misconduct in the present case and caused his client actual harm. As Respondent has previously been before this Court for the same form of serious misconduct, and he has now harmed three clients by his continued misdeeds, we find that a one-year suspension is appropriate. Considering his past misconduct, Respondent should have been mindful of the Court’s announcement in Rotstein that “[i]n recent years, this Court has moved towards stronger sanctions for attorney misconduct,” when he engaged in misconduct regarding his client Newman. Rotstein, 835 So.2d at 245.

CONCLUSION

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

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Timothy Allen Patrick in the amount of $3,873.15, for which sum let execution issue.

It is so ordered.

PARIENTE, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., and LEWIS, J., concur in result.

      . The other case was resolved in 2001 at the grievance committee level. Thus, it did not result in an order by the Court.

      . The respondent in Florida Bar v. Rue, 643 So.2d 1080, 1081 (Fla.1994), was found guilty of violating rule 4-1.8(e). Rue had provided improper monetary advances to his clients for "living expenses.”

      . The 2009 version of the rule was not in effect when Respondent engaged in the misconduct. The subsequent opinion of In re Amendments to the Rules Regulating the Florida Bar, 24 So.3d 63, 117 (Fla.2009), amended the comment to elaborate that expenses could include a “diagnostic medical examination used for litigation purposes." (Emphasis added.) Clearly, the rule focuses on the costs of obtaining and presenting evidence.

      . Respondent asserts the referee’s recommendation that he violated rule 4-1.8(e) is unsupported and thus the recommendation that he violated rule 3-4.3 (general misconduct) should be disapproved. Respondent does not provide any separate arguments addressing the recommendation that he violated rule 3-4.3. As we find the referee’s recommendation that Respondent violated rule 4-1.8(e) is supported, we disagree with Respondent’s broad assertion that he did not violate rule 3-4.3.

      . The parties agree that suspension is the appropriate sanction. On review, the issue in dispute is the length of the suspension.

      . The referee found that Newman settled his loss for approximately one-third of this amount.

      . The current referee found that Respondent acted with a dishonest or selfish motive.


source: Caselaw Access Project

license: Public Domain

text:
    140 ASSOCIATES, LTD., etc., et al., Petitioners, v. SEACOAST NATIONAL BANK, etc., et al., Respondents.
    No. SC10-974.
    Supreme Court of Florida.
    June 30, 2011.

      Robert A. Sweetapple of Sweetapple, Broeker and Varkas, P.L., Boca Raton, FL, for Appellant.
    John H. Pelzerof Ruden McClosky, P.A., Fort Lauderdale, FL and Morris G. Miller of Ruden McClosky, P.A., West Palm Beach, FL; and Richard A. Kupper, Del-ray Beach, FL and Harvey R. Schneider, Boca Raton, FL, for Appellees.
   PER CURIAM.

We have for review the Fourth District Court of Appeal’s decision in 770 PPR, LLC v. TJCV Land Trust, 30 So.3d 613 (Fla. 4th DCA 2010). We dismiss.

It is so ordered.

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


author: LEWIS, J.

text:
    Alfredo MORENO-GONZALEZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-2163.
    Supreme Court of Florida.
    July 7, 2011.

      Martin L. Roth, P.A., Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Nikole Hiciano, Assistant Attorneys General, Miami, FL, for Appellee.
   LEWIS, J.

This case is before the Court for review of the decision of the Third District Court of Appeal in State v. Moreno-Gonzalez, 18 So.3d 1180 (Fla. 3d DCA 2009). The district court expressly construed a provision of the Florida Constitution and, therefore, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We approve the result, but not the reasoning, of the Third District Court of Appeal that under the specific circumstances of this case, the failure of a law enforcement officer to sign an affidavit in support of a search warrant did not invalidate the warrant. We disapprove the opinion below with regard to the constitutional analysis conducted by the Third District. Specifically, this case exclusively involves statutory law, and the Third District erred by addressing and applying the conformity clause of the Florida Constitution. The Fourth Amendment to the United States Constitution does not contain the same “affidavit” requirement which is utilized in the Florida Constitution.

FACTS AND PROCEDURAL HISTORY

On May 16, 2007, a circuit court judge issued a warrant authorizing the search of a property located at 22590 SW 252nd Street in Dade County. An affidavit was submitted by Miami-Dade Detective Lourdes Hernandez in support of the issuance of the warrant. The affidavit outlined the facts that led Detective Hernandez to believe that a marijuana hydroponic lab was in operation on that property. While both Detective Hernandez and the circuit court judge initialed each and every page of the affidavit and the search warrant, the judge signed the affidavit and the warrant, and Detective Hernandez swore to the truth of each page of the affidavit in the presence of the circuit judge, Detective Hernandez failed to sign and subscribe to the affidavit on the line titled “AFFIANT.” A subsequent search revealed that hydroponic marijuana labs were being operated in a detached garage and a shed on the described property. Detective Hernandez impounded 47.6 pounds of marijuana that was discovered pursuant to the warrant.

The owner of the property, Alfredo Moreno-Gonzalez, was subsequently arrested and charged with possession of cannabis in an amount greater than twenty-five pounds, but less than 2000 pounds. On September 12, 2007, Moreno-Gonzalez filed a motion to suppress all evidence seized based upon the May 16, 2007, warrant. In support of the motion, Moreno-Gonzalez contended that: (1) the property was searched without a warrant; (2) the warrant that was later issued was insufficient because it was not supported by lawfully acquired probable cause; and (3) the affidavit in support of the warrant was not subscribed by the affiant, Detective Hernandez, as mandated by section 938.06, Florida Statutes (2007). On March 3, 2008, a hearing was conducted on the motion to suppress. The trial court granted the motion and ordered the evidence suppressed on the sole and exclusive basis that Detective Hernandez had failed to fully sign the affidavit on the line provided as required by section 933.06. The trial court then issued an order stating that due to the determination with regard to the statutory violation, no arguments arising under the Florida and United States Constitutions would be addressed.

Although the decision of the Third District Court of Appeal, which addressed the validity of the suppression order, provides “it is undisputed that probable cause was shown by the officer swearing to the allegations in the affidavit under oath before the judge,” Moreno-Gonzalez, 18 So.3d at 1180, a review of the suppression hearing transcript reveals to the contrary that there are, in fact, numerous factual discrepancies between the two witnesses who testified with regard to the events that led to the drafting of the search warrant. More specifically, the first witness, Detective Hernandez, explained that on May 16, 2007, the Miami-Dade Police Department was conducting investigations with the federal Drug Enforcement Administration (DEA) concerning “grow houses.” DEA Agent Pete Yates contacted Hernandez, stating that he received a tip about a “grow house” in the vicinity of 22590 SW 252nd Street. She and Agent Yates drove separate vehicles to the location named in the tip. According to Hernandez, the tip applied to a house located at 22600 SW 252nd Street. Hernandez stated that another Miami-Dade Detective named Silva had already approached the residence at 22600 SW 252nd Street with a DEA Agent, but no one responded. Detective Hernandez and Agent Yates then approached the residence of Moreno-Gonzalez, which was located at 22590 SW 252nd Street, as part of a neighborhood canvas to see if the residents could provide information with regard to the individuals who resided at 22600 SW 252nd Street.

As Detective Hernandez approached the front door, she observed that the home was under construction and the front door could not be opened. When she knocked on the door, a woman came to a side window and directed Hernandez and Agent Yates in Spanish to proceed to the rear of the house. As she was walking toward the back of the house, Detective Hernandez smelled a “very strong” odor of live marijuana emanating from a detached garage that was located just west of the primary residence. She noticed that PVC (a type of plastic) pipes entered the structure and that the windows of the building were covered with Mylar. She also heard water pumps operating within the garage. Detective Hernandez testified that these conditions indicated to her that the garage served as a grow house. During cross-examination, Hernandez admitted that at that time she did not communicate her observations to Agent Yates.

Once she and Agent Yates entered the house through a screened-in porch and sliding glass door, Detective Hernandez informed the woman in Spanish that she was present to conduct a narcotics investigation. The woman stated that while she was only the housekeeper, the owner was at home and was sleeping. Detective Hernandez instructed the housekeeper to wake the owner because she and Agent Yates needed to speak with him. The housekeeper, accompanied by Agent Yates, proceeded to wake Moreno-Gonzalez and bring him to the kitchen. When Detective Hernandez asked Moreno-Gonzalez if he would consent to a search of the house, Moreno-Gonzalez refused. After the refusal, Detective Hernandez, Agent Yates, and Moreno-Gonzalez proceeded to the screened-in porch area. Hernandez contacted another Miami-Dade detective, who remained with Agent Yates and Moreno-Gonzalez while Hernandez left to draft the search warrant. When asked the time at which Moreno-Gonzalez refused consent, Detective Hernandez replied that it was approximately 9:30 or 10 a.m.

The testimony of DEA Agent Yates significantly differed from that of Detective Hernandez in a number of respects. The DEA report of the incident reflected that Agent Yates and Detective Hernandez approached the residence of Moreno-Gonzalez at 7:30 a.m. According to Yates, he intended to drive to 22600 SW 252nd Street; however, when he programmed the address into his GPS, it mistakenly directed him to Moreno-Gonzalez’s property. Agent Yates testified that he did not believe or intend that he, Detective Hernandez, and a third DEA Agent named Jones were going to 22590 SW 252nd Street as part of a canvas; instead, he thought they were at the correct house (i.e., the house named in the tip). Yates stated that he had not been advised that other law enforcement had already approached the house at 22600 SW 252nd Street, and Yates believed that he was the flrst person to arrive to investigate the grow-house tip. According to Yates, when Hernandez knocked on the front door, a female opened the door. Yates did not recall that the front door was under construction. Yates stated that he did not speak Spanish and could not understand the conversation between the two women, but followed Detective Hernandez when she proceeded toward the back door of the residence. While walking to the back of the house, Agent Yates did not smell marijuana. He also testified that he did not recall seeing any PVC pipes near the garage.

After Moreno-Gonzalez spoke with Detective Hernandez in Spanish and refused consent for a search, Detective Hernandez, Moreno-Gonzalez, and Agent Yates proceeded to the screened-in porch area. During cross-examination, Yates stated that while he and Agent Jones remained with Moreno-Gonzalez at the house, Detective Hernandez stepped outside and walked to the garage. According to Yates, upon her return, Hernandez stated that “she smelled marijuana and then she kind of looked at the [detached garage] and could see that two of the windows were not boarded up, but had something, a covering on the inside, and PVC pipes coming out of the side of the building.” At that point, she advised that she intended to obtain a warrant.

The State appealed the suppression order, and the Third District Court of Appeal reversed the trial court. See State v. Moreno-Gonzalez, 18 So.3d 1180, 1185 (Fla. 3d DCA 2009). The district court relied on a portion of article I, section 12, of the Florida Constitution, which provides:

No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the kth Amendment to the United States Constitution, as interpreted by the United States Supreme Court.

Art. I, § 12, Fla. Const, (emphasis supplied). The Third District noted that the “conformity” sentence was added to the Florida Constitution after it was adopted by Florida voters during the 1982 election. See Moreno-Gonzalez, 18 So.3d at 1181.

The Third District then referenced the decision of the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), in which the Supreme Court held that “[tjechnical requirements of elaborate specificity” are not proper with regard to affidavits in support of search warrants. Moreno-Gonzalez, 18 So.3d at 1183 (quoting Ventresca, 380 U.S. at 108, 85 S.Ct. 741). The district court concluded that the lack of a signature on an affidavit, where each page was initialed and the contents were sworn to under oath, constitutes a technical deficiency. See id. at 1184. Based upon this conclusion, the Third District held that the conformity clause of article I, section 12, mandates application of the holding in Ventresca to the present case. See id. at 1183. The Third District opined that to contend Ventresca is not binding on Florida courts after the approval of the 1982 amendment to the Florida Constitution “is to ignore the will of the people.” Id. Applying Ventresca, the Third District held that the absence of Detective Hernandez’s signature on the affidavit was not fatal to the validity of the search warrant, and that the trial court erred when it ordered suppression of the evidence on this basis. See id. at 1185.

The Third District also concluded that under Florida statutory law, the affidavit requirement of article I, section 12, can be satisfied by oath or affirmation. See id. at 1184. The district court noted that section 92.525, Florida Statutes (2007), provides, in relevant part:

(1) When it is authorized or required by law ... that a document be verified by a person, the verification may be accomplished in the following manner:
(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths....

Id. The district court then stated that, under section 92.525, the definition of the term “document” includes affidavits. See id. at 1185 (quoting § 92.525(4)(b)). The Third District also reasoned that an oath may be administered by or before any judge of this state. See id. at 1185 (quoting § 92.50(1), Fla. Stat. (2007)). Based upon these statutory provisions, the Third District determined that “the affidavit at issue was sufficient to support the issuance of the warrant and the absence of a signature was not fatal.” Id.

On May 21, 2010, this Court accepted review of the decision below on the basis that the Third District Court of Appeal expressly construed a provision of the Florida Constitution. See art. V, § 3(b)(3), Fla. Const.

ANALYSIS

Although the Florida Constitution expressly provides that any search warrant must be supported by affidavit, see art. I, § 12, Fla. Const., the requirements for an affidavit in support of a search warrant are delineated in the Florida Statutes. This Court previously recognized that the Legislature is empowered to enact statutes to implement this constitutional provision:

The question of ‘reasonableness’ or ‘unreasonableness’ [of a search or seizure] is a judicial problem in each instance to be resolved on the basis of the factual situation presented in each case. Every situation is to be tested by the traditional requirements of our judicial precedents as well as by the legislative enactments established to implement the requirements of the Constitution.

Chacon v. State, 102 So.2d 578, 588-89 (Fla.1957) (emphasis supplied). The Court in Chacon specifically noted that implementing legislation had been adopted with regard to the issuance and execution of search warrants. See id. at 589. Accordingly, this case presents a question of statutory compliance — not a matter of constitutional construction.

Our conclusion is further compelled by the fact that the Fourth Amendment of the United States Constitution does not contain an affidavit requirement, but rather mandates that a search warrant be supported by “oath or affirmation.” Amend. IV, U.S. Const. Thus, the Florida Constitution not only has different requirements than the United States Constitution with regard to documentation in support of search warrants, but Florida statutory law provides further standards with which those affidavits must comply to be valid. For this reason, we are not required to follow United States Supreme Court decisions that address technical aspects of documentation in support of search warrants pursuant to the Fourth Amendment, even where those decisions discuss search warrants that are supported by affidavit, such as Ventresca. Therefore, to the extent that the Third District Court of Appeal relied upon the conformity clause in the Florida Constitution and held that the United States Supreme Court decision in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), compelled denial of the motion to suppress, we conclude that the analysis by the district court was erroneous and misdirected.

The statutes governing search warrants contain a section titled “Sworn application required before issuance” and provides:

The judge must, before issuing the warrant, have the application of some person for said warrant duly sworn to and subscribed, and may receive further testimony from witnesses or supporting affidavits, or depositions in writing, to support the application. The affidavit and further proof, if same be had or required, must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.

§ 933.06, Fla. Stat. (2007) (emphasis supplied). “Subscribe” is the verb form of “subscription,” which is defined as “[t]he act of signing one’s name on a document; the signature so affixed.” Black’s Law Dictionary 1468 (8th ed. 2004). It is undisputed that Detective Hernandez failed to sign the affidavit in support of the search warrant that was issued. Therefore, the affidavit did not comply with section 933.06. However, whether this statutory violation is fatal to the warrant depends on a consideration of all the circumstances surrounding the omission.

The purpose of the requirement in the Florida Constitution that affidavits in support of search warrants be sworn to is to render law enforcement officers subject to charges of perjury for false statements that are offered under oath. See State v. Bernie, 472 So.2d 1243, 1248 (Fla. 2d DCA 1985) (“Police officers know that an oath requires the declarant to render himself punishable for perjury for any false statements when he unequivocally attests to the truth of a statement. They know that such an act constitutes that oath-taking which is required by our statutes as well as our Federal and Florida Constitutions.”), approved, 524 So.2d 988 (Fla.1988).

Here, Detective Hernandez did swear to the truthfulness of all of her statements in the affidavit before the actual judge who signed the search warrant. Moreover, although Detective Hernandez failed to sign the affidavit on the line provided, both she and the judge who issued the search warrant initialed each and every page of the affidavit, including the page on which the signature line was located. During the hearing on the motion to suppress, Detective Hernandez testified that she swore to all of the information in the affidavit under oath before initialing each page. The trial court suppression order recognized and accepted that, according to Detective Hernandez, the entire affidavit was orally sworn to in the presence of the issuing judge. Thus, if false information was presented in the sworn affidavit, Detective Hernandez would be subject to a charge of perjury. See id.

Nothing in the record indicates that Detective Hernandez’s failure to sign the affidavit was anything more than, and it must be treated as, a simple accidental oversight. Indeed, Moreno-Gonzalez does not assert that Detective Hernandez attempted or intended to circumvent the statutory requirements for affidavits. Based on all of the undisputed circumstances surrounding the execution of the search warrant in this case, we conclude that while the lack of Detective Hernandez’s signature on the affidavit is most certainly a flaw, that flaw was not and should not be considered fatal to the validity of the search warrant.

In accepting the reasoning of the Second District, we emphasize that we do not condone careless mistakes by law enforcement officers, particularly with regard to search warrants. However, where all of the surrounding circumstances clearly and without dispute demonstrate that the entire written affidavit in support of the search warrant was initialed and sworn to under oath before the judge who issued the warrant, and there are no indications of unlawful or malicious conduct or intent on behalf of the police, a technical error such as occurred here should not and will not thwart the criminal justice process— especially where there is no indication that the defendant was prejudiced by the error. See, e.g., Cain v. State, 287 So.2d 69, 70 (Fla.1978) (approving decision of district court reversing a trial court order of suppression on the basis that the failure of the judge to fill in the date on a search warrant was “a mere technicality and not prejudicial”); State v. McManus, 404 So.2d 757, 758 (Fla. 4th DCA 1981) (upholding a circuit court order of interception, i.e., a wiretap, even though the application and affidavit in support of the order did not bear a jurat, a date, the signature of the issuing judge, or the seal of office), review denied, 412 So.2d 468 (Fla.1982).

Further, even if we were to conclude that the failure of Detective Hernandez to sign the affidavit under these circumstances constituted something more serious than a technical violation, application of section 92.525, Florida Statutes (2007), should preclude invalidation of the warrant for failure to comply with section 933.06. Section 92.525 provides:

When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:
(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or
(b) By the signing of the written declaration prescribed in subsection (2).

§ 92.525(1), Fla. Stat. (2007). This statutory section also explains that “[t]he requirement that a document be verified means that the document must be signed or executed by a person and that the person must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect.” Id. § 92.525(4)(c) (emphasis supplied). This subsection expressly references affidavits as documents that are subject to this provision. See id. § 92.525(4)(b).

Under section 92.525, an affidavit need not be formally signed to comply with the Florida Statutes. Instead, the “subscription” requirement is satisfied if the drafter swears under oath before a judge, or other officer authorized pursuant to section 92.50, to the truth of the information contained therein. See § 92.50(1), Fla. Stat. (2007) (“Oaths ... required or authorized under the laws of this state ... may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state” (emphasis supplied)). As previously discussed, Detective Hernandez swore under oath to the truth of the entire affidavit before the actual judge who issued the search warrant and initialed each page, thereby validating the affidavit pursuant to section 92.525(1)(a).

CONCLUSION

Based on the foregoing, we approve the Third District’s reversal of the order of suppression, but disapprove the constitutional analysis and application employed by the district court. Instead, we hold the failure of Detective Hernandez to sign the affidavit did not render the search warrant invalid because, based upon all the circumstances surrounding the issuance of the warrant here, the error constituted a technical flaw. Accordingly, the trial court erred by suppressing the evidence exclusively on that basis.

For purposes of remand, we note that noncompliance with section 933.06 was not the sole basis for the motion to suppress. Rather, Moreno-Gonzalez contended that his property was searched without a warrant and also that the warrant which was later issued was insufficient because it was not supported by lawfully acquired probable cause. During the motion to suppress, the trial court allowed argument only on the statutory challenge, and the order granting suppression addressed only the statutory claim.

The testimony of Detective Hernandez and DEA Agent Yates differed significantly. Accordingly, the assertion of the Third District that “it is undisputed that probable cause was shown by the officer swearing to the allegations in the affidavit,” Moreno-Gonzalez, 18 So.3d at 1180, is contrary to the record. Therefore, we reject this conclusion. Upon remand, the trial court shall consider the evidence and the credibility of the witnesses who testified during the hearing on the motion to suppress and make further findings and conclusions as proper to fully determine whether suppression of evidence is warranted in this case based on any other ground presented.

It is so ordered.

PARIENTE, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., concurs in result.

      . Hydroponics is "the science of growing plants in chemicals and water without the use of soil.” S-C Industries v. American Hydroponics System, Inc., 468 F.2d 852, 853 n. 1 (5th Cir.1972).

      . The suppression hearing transcript uses the term "milark.” However, websites and weblogs that address marijuana grow rooms discuss the use of Mylar for its reflective properties. See, e.g., http://www.marijuana seedbanks.com/growing_marijuana_in-doors.html (last visited June 27, 2011).

      . According to the suppression hearing transcript, the deposition of Miami-Dade Detective Silva was part of the trial court record (however, it was not included in the record on appeal). In that deposition, Silva stated that law enforcement agents approached Moreno-Gonzalez’s property first. Thus, this deposition directly contradicts the testimony of Detective Hernandez that Silva visited the house located at 22600 SW 252nd Street before Hernandez and Yates approached the residence of Moreno-Gonzalez.


author: QUINCE, J.

text:
    D.J., Petitioner, v. STATE of Florida, Respondent.
    No. SC10-1852.
    Supreme Court of Florida.
    July 7, 2011.

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Nicholas Merlin, Assistant Attorneys General, Miami, FL, for Respondent.
   QUINCE, J.

We have for review the decision of the Third District Court of Appeal in D.J. v. State, 43 So.3d 176 (Fla. 3d DCA 2010). In its opinion, the Third District affirmed a juvenile’s conviction for trespassing upon the grounds of a school facility in violation of section 810.097(2), Florida Statutes (2009). We granted review to resolve a conflict between the Third District’s decision and the decision of this Court in State v. Dye, 346 So.2d 538 (Fla.1977), on the question of whether the prosecution must prove the identity of the individual who warned the defendant to leave the grounds of the school, and that individual’s authority to restrict access to the property, as essential elements of the trespass offense. We conclude that the individual’s identity and authority are essential elements of the offense and quash the decision of the Third District. Further, because in this case the State failed to present any evidence demonstrating that the petitioner was warned to leave by the school’s principal or a designee of the principal, we find that the petitioner’s conviction must be vacated.

BACKGROUND

The petitioner in this case is D.J., a juvenile. On January 14, 2009, a petition for delinquency was filed in the Eleventh Judicial Circuit charging the petitioner with a violation of section 810.097(2), Florida Statutes (2009). The statute provides:

Any person who enters or remains upon the campus or other facility of a school after the principal of such school, or his or her designee, has directed such person to leave such campus or facility or not to enter upon the campus or facility, commits a trespass upon the grounds of a school facility and is guilty of a misdemeanor in the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 810.097(2), Fla. Stat.

At a bench trial on the petition, the State’s primary witness testified that she was employed as a security guard at Charles Drew Middle School in Miami-Dade County. When asked what her responsibilities were as a security guard, the witness replied that her job was to monitor students’ behavior. The witness testified that on January 12, 2009, she encountered the petitioner on the school’s grounds, recognized that he was not a student there, and told him that he would have to leave. The next day, the witness again observed the petitioner on school grounds. She notified the school’s police officer, who arrested the petitioner for trespassing.

Following the presentation of the State’s evidence, the defense moved for a judgment of dismissal. See Fla. R. Juv. P. 8.110(k). Specifically, the defense argued that section 810.097(2) requires the State to prove, as an essential element of the trespass offense, that the defendant was warned to leave the school either by the school’s principal or by a person to whom the principal had granted authority to restrict access to the property. The defense asserted that the State had presented no evidence that the security guard was authorized to order persons to leave the school. The trial court agreed with the defense that no evidence of the security guard’s authority had been presented. However, after considering argument by the parties, the trial court concluded that the statute did not require the State to present evidence of the security guard’s authority to restrict access to the school. Based on this conclusion, the trial court found the petitioner guilty of the charged offense. The petitioner was later adjudicated delinquent and committed to the custody of the Department of Juvenile Justice.

The adjudication was appealed to the Third District Court of Appeal. Like the trial court, the Third District observed that no evidence had been presented at trial concerning the security guard’s status as a designee of the school’s principal. See D.J. v. State, 43 So.3d 176, 177 (Fla. 3d DCA 2010). However, the Third District also agreed with the trial court that the State was not required to present such evidence. Quoting Downer v. State, 375 So.2d 840 (Fla.1979), the district court stated:

We do not believe ... that the identity and authority of those who have withheld permission to enter certain portions of a public facility are elements of the trespass statute. It is sufficient if the prosecutor establishes that the defendant was on notice that he was not authorized to enter the portion of the public building in which the alleged trespass occurred. Only if the defendant at trial challenges the authorization of one who has posted notice of or who has otherwise communicated this restriction, is the state required to prove the identity of the individual and his authority to restrict access to the portion of the public facility in question.

D.J., 43 So.3d at 177 (quoting Downer, 375 So.2d at 845-46). The Third District accordingly concluded that the motion for judgment of dismissal was properly denied. See id.

D.J. filed a petition for review in this Court based on an asserted express and direct conflict between the Third District’s decision below and the decision of this Court in State v. Dye, 346 So.2d 538 (Fla.1977). We granted review, dispensing with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. See D.J. v. State, 47 So.3d 1287 (Fla.2010). Based on our consideration of Dye as well as the clear language of section 810.097(2), we find that the Third District’s conclusion was error.

ANALYSIS

The constitutional guarantee of due process requires that all essential elements of an offense must be proved by the prosecution beyond a reasonable doubt. See State v. Barnum, 921 So.2d 513, 519 (Fla.2005) (citing Fiore v. White, 531 U.S. 225, 229, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001)). The question presented in this case is whether the identity and authority of a person who has warned a defendant to leave a school are essential elements of the offense of trespass upon the grounds of a school facility as set out by section 810.097(2), Florida Statutes (2009). The statute provides that a person commits a misdemeanor of the first degree by entering or remaining on the grounds of a school “after the principal of such school, or his or her designee, has directed such person to leave such campus or facility or not to enter upon the campus or facility.” § 810.097(2). The elements of a criminal offense are a matter of statutory interpretation, which we address under the de novo standard of review. See State v. Sigler, 967 So.2d 835, 841 (Fla.2007).

Initially, we observe that the facts of this case are nearly identical to those presented in State v. Dye, 346 So.2d 538 (Fla.1977). The defendant in that case was arrested after being ordered to leave the grounds of a school by the school’s custodian, and after refusing to leave. He was subsequently charged with trespassing on school property in violation of section 810.09, Florida Statutes (1975) (“Trespass on property other than a structure or conveyance.”). At the time of the conviction, section 810.09(2) stated that a person would commit a misdemeanor of the first degree where that person “defie[d] an order to leave, personally communicated to him by the owner of the premises or other authorized person.” See § 810.09(2)(a), Fla. Stat. (1975). The trial court dismissed the charges based on its conclusion that the statute was unconstitutionally vague and overbroad. See Dye, 346 So.2d at 540-41.

On review by this Court, we rejected the trial court’s finding that the statute was unconstitutional but affirmed its decision to dismiss the charges based on our conclusion that the charging document was deficient. We explained that “[a]n information must allege each of the essential elements of a crime to be valid.” Id. at 541. In Dye’s case, we determined that the information was defective because it did not allege that “the offender defied an order to leave, personally communicated to him by an authorized person.” Id. (quoting § 810.09(2)). We stated, “Not only does [the information] fail to state that a person with requisite authority demanded he leave, it does not even state that anyone ordered him to leave.” Id.

This Court’s opinion next addressed the specific proof that would be required to support a conviction for violating section 810.09(2) under the circumstances presented in Dye. Our discussion focused on the meaning of the phrase “other authorized person” within the context of the statute. We explained:

“Common understanding” dictates that the phrase “other authorized person” is to be read in light of the preceding phrase “owner of the premises” and in pari materia with other statutes controlling the delegation of authority to limit or withdraw access to specific types of public land. In regard to private land, an “authorized person” is one who receives either express or implied authorization from the owner. On public premises, authorized personnel includes those persons who have been given either express or implied authority from the chief executive.

Dye, 346 So.2d at 541-42. In the case of a public school, we found that the chief executive was the school board. Thus, in order to prove that a defendant violated section 810.09(2) for the purposes of a trespass on a school, the State was required to demonstrate that the defendant was ordered to leave the school by an employee of the school board who was given authority to exercise control over school property. We held: “Whether an individual has express or implied authority then is a fact which must be stated in the information and proved by the prosecution at trial.” Id. at 542 (emphasis added).

Although the two cases concerned prosecutions under different trespass statutes, the parallels between Dye and the instant case cannot be avoided. When viewed in pari materia with section 810.09, it becomes clear that section 810.097 grants to the principal of a school the same authority that is granted to the owner of private property by section 810.09, namely, the authority to order persons to either leave the premises or face criminal sanction. Moreover, just as we concluded that the phrase “other authorized person” in section 810.09(2) referred to one who had received either express or implied authorization from the property’s owner to exercise control over the property, we find that the phrase “his or her designee” in section 810.097(2) necessarily refers to one who has received express or implied authorization from the school’s principal to exercise control over the property of the school. Accordingly, to prove that a defendant has committed the first-degree misdemeanor set out in section 810.097(2), the State must present evidence that the defendant was (1) warned to leave the premises by a specific person, and (2) that that person was either the principal of the school or one who had received authorization from the principal to restrict access to the property.

That the identity and authority of the person who has warned a defendant to leave is an essential element of the offense is supported by the plain language of the statute, which clearly states that the offender must have been warned to leave the property “by the principal of such school, or his or her designee.” § 810.097(2). This conclusion is also supported by the language of the standard jury instruction on the offense, which was approved by this Court in 2007. See In re Std. Jury Instructions in Crim. Cases—Report No. 2006-2, 962 So.2d 310 (Fla.2007). The instruction states:

To prove the crime of Trespass on School Grounds or Facilities after Warning by Principal or Designee, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) entered or remained on the campus or facility of (school name).
2. The principal or [his][her] desig-nee [told or directed the defendant to leave the campus or facility] [told the defendant not to enter the campus or facility] of (school name).

Fla. Std. Jury Instr. (Crim.) 13.5(b) (“Trespass on School Grounds or Facilities after Warning by Principal or Designee”) (emphasis added). Thus, the instruction clearly requires the prosecution to prove that the defendant was directed to leave or refrain from entering the premises by either the principal or a designee of the principal.

Furthermore, the primary decision relied on by the district court, Downer v. State, 375 So.2d 840 (Fla.1979), is not applicable to the current language of section 810.097(2). In Downer, we reviewed several convictions for trespassing in a structure or conveyance in violation of section 810.08, Florida Statutes (Supp.1976). The appellants in that case were members of an organization that had conducted a “consumer inspection” of the maternity section of a hospital. See Downer, 375 So.2d at 842-43. In doing so, the appellants had passed several signs stating that visiting hours were over, as well as other signs stating that they were not permitted to enter those areas of the hospital. See id.

In Downer, this Court addressed the appellants’ argument that the trial court should have granted a motion for judgment of acquittal. Similar to the claim raised in Dye, the appellants argued that “[b]ecause the state did not introduce evidence as to the identity of those who had placed the restrictive signs in the hospital, nor proof of their-authorization to do so, it purportedly failed to establish a prima fa-cie case.” Downer, 375 So.2d at 845. We rejected that argument, concluding that the identity and authority of the persons who had restricted access to the property were not elements of section 810.08. Instead, we held that the lack of such authority on the part of those who had imposed the restriction could be raised by the defendant as an affirmative defense. See id. at 845-46 (“Only if the defendant at trial challenges the authorization of one who has posted notice of or who has otherwise communicated this restriction, is the state required to prove the identity of the individual and his authority to restrict access to the portion of the public facility in question”).

Importantly, however, the language of the statute that was at issue in Downer was materially distinguishable from that of the statute we reviewed in Dye. At the time of Downer’s conviction, the relevant portion of section 810.08 stated:

Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance or, having been authorized, licensed, or invited is warned to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

§ 810.08(1), Fla. Stat. (Supp.1976). In contrast to section 810.09(2), Florida Statutes (1975), which we addressed in Dye, section 810.08 did not state that the offender must have been warned to leave by the owner of the property or a person authorized by the owner. The conclusion reached by this Court in Downer therefore does not apply in the instant case. Instead, the trial court and the district court should have relied on this Court’s decision in Dye when determining the requirements of section 810.097.

Finally, the State argues that even if the identity and authority of the person who has warned a defendant to leave school property are elements of the school trespass statute, the petitioner’s conviction should be upheld because sufficient evidence was presented to demonstrate that the security guard was authorized to restrict access to the school. See Johnston v. State, 863 So.2d 271, 283 (Fla.2003) (“Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence.”). We disagree. A review of the record demonstrates that when asked about her duties as a security guard, the witness responded only that her job was to monitor students’ behavior. No further testimony regarding the witness’s duties or authority was elicited. Notably, the trial court expressly determined that the State had presented no evidence that the school’s security guard was a designee of the school’s principal for the purposes of the trespass statute, or that the guard was in any way vested with authority to restrict access to the school’s property. Further, the State has cited no rule or statute indicating that a school security guard, by virtue of his or her title, would possess such authority as a matter of law. Cf. Dye, 346 So.2d at 542 (observing that under a statute in force at the time of the defendant’s conviction, a school custodian could be considered an employee of the school board with inherent authority to manage school property). Because an essential element of the offense was not supported by competent, substantial evidence, we find that the petitioner’s conviction must be vacated.

CONCLUSIONS

“That the government must prove each element of a criminal offense beyond a reasonable doubt is a bedrock principle of our criminal justice system and one that guides the review of any criminal conviction in this state.” Barnum, 921 So.2d at 519. Here, the statute provides that the offender must have been warned to leave “by the principal of such school, or his or her designee.” § 810.097(2), Fla. Stat. Ás in Dye, we find that the identity and authority of the person who has warned the defendant to leave the grounds of the school are essential elements of the trespass offense, which must be stated in the charging document and proved beyond a reasonable doubt at trial. Accordingly, we quash the decision of the Third District in D.J., vacate the conviction for trespassing upon the grounds of a school facility, and remand this case to the district court for further proceedings consistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

CANADY, C.J., dissents.

      . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      . At the time Dye was decided, trespassing on the grounds of a school was criminalized by section 228.091, Florida Statutes (1975). That statute was later amended and renumbered, and is now codified under section 810.097, the statute at issue in the instant case. See ch. 99-147, § 1, Laws of Fla. Nonetheless, Dye was charged with committing the more general trespassing offense in violation of section 810.09, rather than with the more specific offense of trespassing on a school in violation of section 228.091.

      . The current version of section 810.09 uses essentially the same language as that used in the 1975 version. See § 810.09(2)(b), Fla. Stat. (2010) (“If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person ... the offender commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.”).

      . However, we note that section 810.08 was amended shortly after Downer’s conviction. The amended version of the statute stated, and continues to require, that a person who has been authorized, licensed, or invited to enter or remain on the property must be warned to leave "by the owner or lessee of the premises, or by a person authorized by the owner or lessee.” See Ch. 77-132, § 33, Laws of Fla.; see also 810.08(1), Fla. Stat. (2010).


text:
    In re AMENDMENTS TO the FLORIDA PROBATE RULES.
    No. SC10-1928.
    Supreme Court of Florida.
    July 7, 2011.
    Jeffrey Scott Goethe, Chair, Florida Probate Rules Committee, Bradenton, FL, John F. Harkness, Jr., Executive Director and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Brian J. Felcoski, Chair, Real Property, Probate and Trust Law Section of The Florida Bar, Coral Gables, FL, Responding with comments.
   PER CURIAM.

In the December 9, 2010, opinion in this case, the Court amended the Florida Probate Rules, in response to recent changes to the Florida Probate Code. In re Amendments to the Florida Probate Rules, 51 So.3d 1146 (Fla.2010). The opinion gave interested persons sixty days to comment on the amendments. Id. After considering the sole comment filed by the Real Property, Probate and Trust Law Section of The Florida Bar and the Probate Rules Committee’s response to that comment, we further amend Probate Rule 5.260(b).

We amend subdivision (b) (Content) of rule 5.260 (Caveat; Proceedings) to rein-corpórate the deleted requirement that a caveat contain certain personal information about the decedent and the caveator. We deleted from the rule the requirement that a caveat contain certain personal information because the requirement had been deleted from section 731.110, Florida Statutes by chapter 2010-132, section 3, Laws of Florida. See 51 So.3d at 1146. In its comment, the Real Property, Probate and Trust Law Section explained that the Section’s Probate Law Committee had urged the deletion of the content requirements from the statute because the committee determined the requirements was more properly addressed by the rule than by statute. See Fla. Prob. R. 5.010 comm, note (1988) (providing that the Rules Committee, through the Section, will seek repeal of procedural portions of the Probate Code that are addressed by rule). The Rules Committee agrees with the Section’s suggested changes to the rule. Accordingly, we amend rule 5.260(b), as reflected in the appendix to this opinion.

First, as suggested by the Section, we replace the term “decedent” with “the person for whom the estate will be, or is being, administered” to account for the fact that an interested person other than a creditor may now file a caveat prior to the death of the subject of the caveat. We also replace the deleted requirement that a caveat contain the subject of the caveat’s social security number or birth date, and a statement of the caveator’s interest in the estate. However, as amended, subdivision (b) now limits the listing of the social security number to the last four digits and birth date to the year of birth. These limitations are consistent with amendments intended to minimize personal information filed with the court made in In re Implementation of Committee on Privacy & Court Records Recommendations, — So.3d —, 2011 WL 2566360 (Fla.2011).

Accordingly, we amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is underscored, and deleted language is struck through. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

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

APPENDIX

RULE 5.260. CAVEAT; PROCEEDINGS

(a) [No change]

(b) Contents. The caveat shall contain the decedent’s nameT of the person for whom the estate will be, or is being, administered, the last 4 digits of the person’s social security number or year of birth, if known, a statement of the interest of the caveator in the estate, and the name and specific mailing address of the caveator.

(c)-(f) [No change]

Committee Notes

[No Change]

Rule History

1977 Revision — 2010 Out-of-Cycle Report Revision: [No change]

2011 Revision: Subdivision (b) amended to replace language removed in 2010 out-of-cycle revision, to replace term “decedent with person for whom the estate will be, or is being, administered,” and to limit listing of a social security number to the last four digits and a date of birth to the year of birth.

Statutory Reference

[No Change]

Rule Reference

[No Change]

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.