text:
    In re AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION.
    No. SC13-1915.
    Supreme Court of Florida.
    Nov. 14, 2013.
    Honorable Jon Berkley Morgan, Chair, Rules of Judicial Administration Committee, Kissimmee, Florida; John F. Harkness, Jr., Executive Director and Heather S. Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.
   PER CURIAM.

Before the Court are out-of-cycle amendments to Florida Rules of Judicial Administration 2.515 (Signature of Attorneys and Parties); 2.516 (Service of Pleadings and Documents); and 2.525 (Electronic Filing) proposed by The Florida Bar’s Rules of Judicial Administration Committee (Committee). We have jurisdiction and adopt the amendments as proposed.

BACKGROUND

The amendments are to the rules governing e-mail service and electronic filing recently adopted by the Court. See In re Amends, to Fla. Rules of Jud. Admin., Fla. Rules of Civ. Pro., Fla. Rules of Crivi. Pro., Fla. Probate Rules, Fla. Rules of Traffic Court, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro., & Fla. Family Law Rules of Pro.— E-mail Semce Rule, 102 So.3d 505 (Fla. 2012) (adopting e-mail service rule); In re Amends, to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin., Fla. Rules ofCrim. Pro., Fla. Probate Rules, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro., & Fla. Family Law Rules of Pro.- — Electronic Filing, 102 So.3d 451 (Fla.2012) (adopting rules to provide for mandatory electronic filing of documents). Several of the amendments are in response to rule changes suggested by The Honorable Steven Scott Stephens, Circuit Judge, Thirteenth Judicial Circuit, in his comment filed in In re Amendments to Florida Rule of Judicial Administration 2.516, No. SC13-73. See Id. (Fla. amended comment filed June 3, 2013). At the Committee’s request, the Court deferred consideration of the issues raised by Judge Stephens until the Committee could address those issues as part of its overall review of the rules governing electronic documents and propose a comprehensive package of amendments to those rules. See Id. (Fla. response filed June 19, 2013). As part of that comprehensive package of amendments, the Committee proposes other rule amendments, including amendments to provide for electronic service through the Florida Courts e-Filing Portal (Portal).

The Board of Governors of The Florida Bar approved the Committee’s proposals. In order to expedite of the proposed rule amendments, the Committee did not publish the proposals for comment prior to filing them with the Court. The Court considered the proposals under its fast-track procedures, which do not allow for publication by the Court before adoption of the amendments.

AMENDMENTS

The more significant amendments adopted in this case include the following. New subdivision (a)(4) is added to rule 2.515 (Signature of Attorneys and Parties) to provide that the signature of an attorney constitutes a certificate by the attorney that the document contains no confidential or sensitive information, or that any such information has been properly protected in accordance with Rules of Judicial Administration 2.420 (Public Access to Judicial Branch Records) and 2.425 (Minimization of the Filing of Sensitive Information). According to the report, the certification provision is consistent with a similar certification statement on the Portal. The title of both rule 2.515 and subdivision (a) are amended to reference the various “Certificates” that are added to the rule.

According to the report, the other amendments to rule 2.515 and the amendments to rule 2.525 (Electronic Filing) are in response to Judge Stephens’ suggestion in Case No. SC13-73 that the rules be amended to clarify that the act of electronically filing a document through the Portal using the filing attorney’s credentials (us-ername and password) authenticates the document and links the “signing” attorney or attorneys to the document. In this regard, the amendments clarify that (1) the act of filing or serving a document binds the “signing” attorney to the document; (2) the use of the signing attorney’s credentials links the signing attorney to the filing of a document; and (3) other attorneys who sign the document are bound by the contents of the document and the certifications contained in the rule.

Subdivision (c)(2)(B) also is added to rule 2.515 to provide that by serving a document, or by filing a document by electronic transmission using the attorney’s assigned electronic filing credentials the attorney certifies compliance with all Florida rules of procedure regarding service of the document. Accord In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7, 4 (Feb. 18, 2013) (providing that by submitting a document to the Portal, an attorney certifies compliance with the rules of procedure regarding service).

The majority of the amendments to rule 2.516 (Service of Pleadings and Documents) provide for electronic service (e-service) through the Portal. According to the report, once the Portal’s e-service function is implemented, the Portal will automatically serve documents when they are electronically filed. The primary amendments to rule 2.516 establish the parameters of e-service through the Portal and advise that a filer has fully complied with the rule’s e-mail service requirement if a document is served through the Portal. The filer need not also serve the electronically filed document by e-mail. However, the filer of an electronic document must verify that the Portal uses the names and e-mail addresses provided by the parties. An attorney is responsible for the accuracy of and changes to that attorney’s own email addresses maintained by the Portal. If a document is served electronically through the Portal, service is complete on the date the served document is electronically filed and such e-service is treated as service by mail for computation of time purposes.

Also as suggested by Judge Stephens, an obsolete reference to a signed filed document is deleted from rule 2.516(b)(l)(E)(iii). Finally, to address concerns raised by some clerks of court and judicial assistants, rule 2.516(f) (Certificate of Service) is amended to require that the mailing addresses of those served be included in the certificate of service.

Accordingly, the Florida Rules of Judicial Administration are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 2.515. SIGNATURE AND CERTIFICATES OF ATTORNEYS AND PARTIES

(a) Attorney^ Signature and Certificates. Every pleading and other document of a party represented by an attorney shall be signed by at least 1 attorney of record in that attorney’s individual name whose current record Florida Bar address, telephone number, including area code, primary e-mail address and secondary e-mail addresses, if any, and Florida Bar number shall be stated, and who shall be duly licensed to practice law in Florida or who shall have received permission to appear in the particular case as provided in rule 2.510. The attorney may be required by the court to give the address of, and to vouch for the attorney’s authority to represent, the party. Except when otherwise specifically provided by an applicable rule or statute, pleadings documents need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by the attorney that:

(1) the attorney has read the pleading or-other- document;
(2) that to the best of the attorney’s knowledge, information, and belief there is good ground to support itthe document; and
(3) that-it the document is not interposed for delay; and
(4) the document contains no confidential or sensitive information, or that any such confidential or sensitive information has been properly protected by complying with the provisions of rules 2.420 and 2,425. If a pleading document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other document had not been served.

(b) Pro Se Litigant Signature. A party who is not represented by an attorney shall sign any pleading or other paper document and state the party’s address and telephone number, including area code.

(c) Form of Signature.

(1) The signatures required on pleadings and documents by subdivisions (a) and (b) of this rule may be:
(A) original signatures;
(B) original signatures that have been reproduced by electronic means, such as on electronically transmitted documents or photocopied documents;
(C) an electronic signature indicator using the “/s/”, “s/”, or “/s” [name] formats authorized by or--at-the direction of the person signing a document electronically served or filed; or
(D) any other signature format authorized by general law, so long as the clerk where the proceeding is pending has the capability of receiving and has obtained approval from the Supreme Court of Florida to accept pleadings and documents with that signature format.
(2) An attorney, party,-or - other person who files a pleading-or paper by electronic transmission-■ that' does not contain the-original signature-of — that attorney, par-ty,-or other person-shall file feat-identical pleading-or-paper-in paper form-containing an-original-signature of feat-attorney, part-y^or-other person (-hereinafter called-the-follow-up filing) immediately-thereafter. — The-follow-up filing is not — required if the-Supreme Court, of-Florida-has entered-an-order directing the clerk-of-court-to discontinue.accepting the follow-up filing. By serving a document, or by filing a document by electronic transmission using an attorney’s assigned electronic filing credentials:
(A) that attorney certifies compliance with subdivision (a)(1) through (a)(4) and accepts responsibility for the document for all purposes under this rule;
(B) that attorney certifies compliance with all rules of procedure regarding service of the document on attorneys and parties;
(C) that attorney certifies that every person identified as a signer in the document as described in subdivision (c)(1)(C) has authorized such signature; and
(D) every signing attorney is as responsible for the document as if that document had been served by such signing attorney or filed using the assigned electronic filing credentials of such signing attorney.

RULE 2.516 SERVICE OF PLEADINGS AND DOCUMENTS

(a) [No Change]

(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.

(1) Service by Electronic Mail (“email”). All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. A filer of an electronic document has complied with this subdivision if the Florida Courts e-filing Portal (“Portal”) or other authorized electronic filing system with a supreme court approved electronic service system (“e-Service system”) served the document by e-mail or provided a link by email to the document on a website maintained by a clerk (“e-Service”). The filer of an electronic document must verify that the Portal or other e-Service system uses the names and e-mail addresses provided by the parties pursuant to subdivision (b)(1)(A).
(A) Service on Attorneys. Upon appearing in a proceeding, an attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses and is responsible for the accuracy of and changes to that attorney’s own email addresses maintained by the Portal or other e-Service system. Thereafter, service must be directed to all designated e-mail addresses in that proceeding. Every document filed or served by an attorney thereafter must include the primary e-mail address of that attorney and any secondary email addresses. If an attorney does not designate any e-mail address for service, documents may be served on that attorney at the e-mail address on record with The Florida Bar.
(B)-(C) [No Change]

(D) Time of Service. Service by e-mail is complete on the date it is sent.

(i) If, however, the e-mail is sent by the Portal or other e-Service system, service is complete on the date the served document is electronically filed.
(ii) If the senderperson required to serve a document learns that the email was not reach received by the address of the person-to be served an intended recipient, the sender the person must immediately send resend another — copy the document to that intended recipient by e-mail, or by a means authorized by subdivision (b)(2) of this rule.
(iii) E-mail service, including e-Service, is treated as service by mail for the computation of time.
(E) Format of E-mail for Service. Service of a document by e-mail is made by an e-mail sent to all addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk.
(i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served.
(ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number of the person required to serve the document.
(iii) Any document served by e-mail may be signed by any of the “/s/”, 7s” or “s/” formats, as-long-as-the fiied-document is signed in accordance -with-the-applicable rule of procedure.
(iv) Any e-mail which, together with its attached documents, exceeds five megabytes (5MB) in size, must be divided and sent as separate emails, no one of which may exceed 5MB in size and each of which must be sequentially numbered in the subject line.
(2) [No Change]

(c)-(d) [No Change]

(e) Filing Defined. The filing of documents with the court as required by these rules must be made by filing them with the clerk in accordance with rule 2.525, except that the judge may permit documents to be filed with the judge, in which event the judge must note the filing date before him or her on the documents and transmit them to the clerk. The date of filing is that shown on the face of the document by the judge’s notation or the clerk’s time stamp, whichever is earlier.

(f) Certificate of Service. When any attorney certifies in substance:

“I certify that a copy hereof the foregoing document has been furnished to (here insert name or names, and-addresses used for service, and mailing addresses) by (email) (delivery) (mail) (fax) on. (date).
Attorney”

the certificate is taken as prima facie proof of such service in compliance with this rule.

(g)-(h) [No Change]

RULE 2.525. ELECTRONIC FILING

(a) [No Change]

(b) Application. Only the electronic filing credentials of an attorney who has signed a document may be used to file that document by electronic transmission. Any court or clerk may accept the electronic transmission of documents for filing and may send documents by electronic transmission after the clerk, together with input from the chief judge of the circuit, has obtained approval of procedures, programs, and standards for electronic filing from the supreme court (“EOF Procedures”). All ECF Procedures must comply with the then-current e-filing standards, as promulgated by the supreme court in Administrative Order No. AOSC09-30, or subsequent administrative order.

(c)-(g) [No Change]

Court Commentary

1997 Amendment. Originally, the rule provided that the follow-up filing had to occur within ten days. In the 1997 amendment to the rule, that requirement was modified to provide that the follow-up filing must occur “immediately” after a document is electronically filed. The “immediately thereafter” language is consistent with language used in the rules of procedure where, in a somewhat analogous situation, the filing of a document may occur after service. See, e.g., Florida Rule of Civil Procedure 1.080(d) (“All original papers shall be filed with the court either before service or immediately thereafter.”) (emphasis added). “Immediately thereafter” has been interpreted to mean “filed with reasonable promptness.” Miami Transit Co. v. Ford, 155 So.2d 360 (Fla.1963).

The use of the words “other person” in this rule is not meant to allow a nonlawyer to sign and file pleadings or other papers on behalf of another. Such conduct would constitute the unauthorized practice of law.

      . See Fla. R. Jud. Admin. 2.140(e).

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

      . See In re Amends. to Fla. Rules of Jud. Admin., Fla. Rules of Civ. Pro., Fla. Rules of Crim. Pro., Fla. Probate Rules, Fla. Rules of Traffic Court, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro., & Fla. Family Law Rules of Pro.—E-mail Service Rule & In re Amends. to Fla. Rules of Civ. Pro., Fla. Rules of Jud. Admin., Fla. Rules of Crim. Pro., Fla. Probate Rides, Fla. Small Claims Rules, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro., & Fla. Family Law Rides of Pro.—Electronic Filing, Nos. SC10-2101 & SC11-399 (Fla. order filed Oct. 9, 2012) (providing for fast-track consideration of proposed amendments to e-mail service and e-filing rules).

      . All comments must be filed with the Court on or before January 13, 2014, with a certificate of service verifying that a copy has been served on the Committee Chair, Hon. Jon Berkley Morgan, 2 Courthouse Square, Room 6420, Kissimmee, Florida 34741-5487 and on the Bar Staff Liaison to the Committee, Heather S. Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, htelfer® flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until February 3, 2014, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re: Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO the FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC12-1205.
    Supreme Court of Florida.
    Nov. 14, 2013.
    Mary Louise Miller Wagstaff of Wag-staff Law Office PA, Chair, Family Law Rules Committee, Largo, FL; Ashley J. McCorvey Myers, Past Chair, Family Law Rules Committee, Jacksonville, FL; Matthew B. Capstraw, Past Chair, Family Law Rules Committee, Longwood, FL; John F. Harkness, Jr., Executive Director, and Ellen H. Sloyer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Robin J. Scher, Palm Beach Gardens, Florida, and Amy L. Cosentino, Green-acres, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Family Law Rules of Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Previously in this case, on petition by the Family Law Rules Committee (Committee), the Court adopted amendments to rules 12.010 (Scope, Purpose, and Title); 12.070 (Process); 12.080 (Service of Pleadings and Filing of Documents); 12.200 (Case Management and Pretrial Conferences); 12.285 (Mandatory Disclosure); 12.490 (General Magistrates); 12.492 (Special Magistrates); 12.610 (Injunctions for Protection Against Domestic, Repeat, Dating, and Sexual Violence, and Stalking); and 12.750 (Family Self-Help Programs). See In re Amendments to the Florida Family Law Rules of Procedure, 95 So.3d 126 (Fla.2012). The amendments were in response to chapter 2012-153, section 3, Laws of Florida, which took effect October 1, 2012. Chapter 2012-153, section 3, created section 784.0485, Florida Statutes, which established “a cause of action for an injunction for protection against stalking.” § 784.0485(1), Fla. Stat. (2012). The amendments added references to injunctions for protection against stalking throughout the Family Law Rules of Procedure related to injunctions for protection against domestic, repeat, dating, and sexual violence. Id. at 127.

After adoption of the amendments, interested persons were permitted a comment period. Id. One comment was filed addressing only the amendments to rule 12.610 (Injunctions for Protection Against Domestic, Repeat, Dating, and Sexual Violence, and Stalking), and the Committee filed a response. The Committee also filed a supplemental petition seeking to amend Florida Family Law Rules of Procedure Forms 12.900(h) (Notice of Related Cases) and 12.928 (Family Law Coversheet).

Upon consideration of the comment, the Committee’s response, and the Committee’s Supplemental Petition, we hereby amend rule 12.610 and forms 12.900(h) and 12.928 as reflected in the appendix to this opinion. Language added to rule 12.610 is underlined; deleted language is stricken through. The forms are fully engrossed and ready for use. The forms also may be accessed and downloaded from the Florida State Courts’ website at www.flcourts.org/ gen_public/family/forms_rules/index.shtml. By adoption of the amended forms, we express no opinion as to their correctness or applicability. The amendments to rule 12.610 and the amendments to forms 12.900(h) and 12.928 shall become effective immediately upon release of this opinion.

It is so ordered.

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

APPENDIX

RULE 12.610. INJUNCTIONS FOR PROTECTION AGAINST DOMESTIC, REPEAT, DATING, AND SEXUAL VIOLENCE, AND STALKING

(a) [No change]
(b) Petitions.
(1) — (2) [No change]
(3) Consideration by Court.
(A) Domestic Violence and Stalking Injunctions. Upon the filing of a petition, the court shall set a hearing to be held at the earliest possible time. A denial of a petition for an ex parte injunction shall be by written order noting the legal grounds for denial. When the only ground for denial is no appearance of an immediate and present danger of domestic, repeat, dating, or sexual violence, or stalking, the court shall set a full hearing on the petition for injunction with notice at the earliest possible time. Nothing herein affects a petitioner’s right to promptly amend any petition, or otherwise be heard in person on any petition consistent with these rules.
(B) Repeat, Dating, or Sexual Violence Injunctions. Upon the filing of a petition, the court shall set a hearing to be held at the earliest possible time. Nothing herein affects a petitioner’s right to promptly amend any petition or otherwise be heard in person on any petition consistent with these rules.
(4) [No change]
(c)Orders of Injunction.
(1) Consideration by Court.
(A) Temporary Injunction.
(i) Domestic, Repeat, Dating, or Sexual Violence. For the injunction for protection to be issued ex parte, it must appear to the court that an immediate and present danger of domestic, repeat, dating, or sexual violence or — stalking—exists. In an ex parte hearing for the purpose of obtaining an ex parte temporary injunction, the court may limit the evidence to the verified pleadings or affidavits for a determination of whether there is an imminent danger that the petitioner will become a victim of domestic, repeat, dating, or sexual violence-er stalking. If the respondent appears at the hearing or has received reasonable notice of the hearing, the court may hold a hearing on the petition. If a verified petition and affidavit are amended, the court shall consider the amendments as if originally filed.
(ii) Stalking. For the injunction for protection to be issued ex parte, it must appear to the court that stalking exists. In an ex parte hearing for the purpose of obtaining an ex parte temporary injunction, the court may limit the evidence to the verified pleadings or affidavits for a determination of whether stalking exists. If the respondent appears at the hearing or has received reasonable notice of the hearing, the court may hold the hearing on the petition. If a verified petition and affidavit are amended, the court shall consider the amendments as if originally filed.
(B)-(C) [No change]
(2) — (3) [No change]
Commentary
[No change]
Committee Note
[No change]

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.900(h), NOTICE OF RELATED CASES (11/13)

When should this form be used?

Florida Rule of Judicial Administration 2.545(d) requires the petitioner in a family law case to file with the court a notice of related cases, if any. Your circuit may also require this form to be filed even if there are no related cases. A case is considered related if

• it involves the same parties, children, or issues and is pending when the family law case is filed; or
• it affects the court’s jurisdiction to proceed; or
• an order in the related case may conflict with an order on the same issues in the new case; or
• an order in the new case may conflict with an order in the earlier case.

This form is used to provide the required notice to the court.

This form should be typed or printed in black ink. It must be filed with the clerk of the circuit court with the initial pleading in the family law case.

What should I do next?

A copy of the form must be served on the presiding judges, either the chief judge or the family law administrative judge, and all parties in the related cases. You should also keep a copy for your records. Service must be in accordance with Florida Rule of Judicial Administration 2.516.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see Florida Rule of Judicial Administration 2.545(d).

Special notes ...

Remember, a person who is NOT an attorney is called a nonlawyer. If a non-lawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms must also put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.928, COVER SHEET FOR FAMILY COURT CASES (11/13)

When should this form be used?

The Cover Sheet for Family Court Cases and the information contained in it neither replace nor supplement the filing and service of pleadings or other documents as required by law. This form shall be filed by the petitioner/party opening or reopening a case for the use of the clerk of the circuit court for the purpose of reporting judicial workload data pursuant to Florida Statutes section 25.075.

This form should be typed or printed in black ink. The petitioner must file this cover sheet with the first pleading or motion filed to open or reopen a case in all domestic and juvenile cases.

What should I do next?

Follow these instructions for completing the form:

I. Case Style. Enter the name of the court, the appropriate case number assigned at the time of filing of the original petition, the name of the judge assigned (if applicable), and the name (last, first, middle initial) of the petitioner(s) and respondent(s).
II. Type of Action /Proceeding. Place a check beside the proceeding you are initiating. If you are simultaneously filing more than one type of proceeding against the same opposing party, such as a modification and an enforcement proceeding, complete a separate cover sheet for each action being filed.
(A) Initial Action/Petition
(B) Reopening Case. If you check “Reopening Case,” indicate whether you are filing a modification or supplemental petition or an action for enforcement by placing a check beside the appropriate action/petition.
1. Modification/Supplemental Petition
2. Motion for Civil Contempt/ Enforcement
3. Other — All reopening actions not involving modification/supplemental petitions or petition enforcement.
III. Type of Case. Place a check beside the appropriate case. If the case fits more than one category, select the most definitive. Definitions of the categories are provided below.
(A) Simplified Dissolution of Marriage — petitions for the termination of marriage pursuant to Florida Family Law Rule of Procedure 12.105.
(B) Dissolution of Marriage — petitions for the termination of marriage pursuant to Chapter 61, Florida Statutes, other than simplified dissolution.
(C) Domestic Violence — all matters relating to injunctions for protection against domestic violence pursuant to section 741.30, Florida Statutes.
(D) Dating Violence — all matters relating to injunctions for protection against dating violence pursuant to section 784.046, Florida Statutes.
(E) Repeat Violence — all matters relating to injunctions for protection against repeat violence pursuant to section 784.046, Florida Statutes.
(F) Sexual Violence — all matters relating to injunctions for protection against sexual violence pursuant to section 784.046, Florida Statutes.
(G) Stalking-all matters relating to injunctions for protection against stalking pursuant to section 784.0485, Florida Statutes
(H) Support — IV-D—all matters relating to child or spousal support in which an application for assistance has been filed with the Department of Revenue, Child Support Enforcement under Title IVD, Social Security Act, except for such matters relating to dissolution of marriage petitions (sections 409.2564, 409.2571, and 409.2597, Florida Statutes), paternity, or UIFSA.
(I) Support-Non IV-D — all matters relating to child or spousal support in which an application for assistance has not been filed under Title IVD, Social Security Act.
(J) UIFSA — IV-D—all matters relating to Chapter 88, Florida Statutes, in which an application for assistance has been filed under Title IVD, Social Security Act.
(K) UIFSA — Non IV-D — all matters relating to Chapter 88, Florida Statutes, in which an application for assistance has not been filed under Title IVD, Social Security Act.
(L) Other Family Court — all matters involving time-sharing and/or parenting plans relating to minor child(ren), support unconnected with dissolution of marriage, annulment, delayed birth certificates pursuant to Florida Statutes section 382.0195, expedited affirmation of parental status pursuant to Florida Statutes section 742.16, termination of parental rights proceedings pursuant to Florida Statutes section 63.087, declaratory judgment actions related to premarital, marital, post-marital agreements, or other matters not included in the categories above.
(M) Adoption Arising Out Of Chapter 63 — all matters relating to adoption pursuant to Chapter 63, Florida Statutes, excluding any matters arising out of Chapter 39, Florida Statutes.
(N) Name Change — all matters relating to name change, pursuant to section 68.07, Florida Statutes.
(O) Paternity/Disestablishment of Paternity — all matters relating to paternity pursuant to Chapter 742, Florida Statutes.
(P) Juvenile Delinquency — all matters relating to juvenile delinquency pursuant to Chapter 985, Florida Statutes.
(Q) Petition for Dependency — all matters relating to petitions for dependency.
(R) Shelter Petition — all matters relating to shelter petitions pursuant to Chapter 39, Florida Statutes.
(S) Termination of Parental Rights Arising Out Of Chapter 39 — all matters relating to termination of parental rights pursuant to Chapter 39, Florida Statutes.
(T) Adoption Arising Out Of Chapter 39 — all matters relating to adoption pursuant to Chapter 39, Florida Statutes.
(U) CINS/FINS — all matters relating to children in need of services (and families in need of services) pursuant to Chapter 984, Florida Statutes.

ATTORNEY OR PARTY SIGNATURE. Sign the Cover Sheet for Family Court Cases. Print legibly the name of the person signing the Cover Sheet for Family Court Cases. Attorneys must include a Florida Bar number. Insert the date the Cover Sheet for Family Court Cases is signed. Signature is a certification that filer has provided accurate information on the Cover Sheet for Family Court Cases.

Nonlawyer Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. For further information, see Rule 12.100, Florida Family Law Rules of Procedure.


text:
    THE FLORIDA BAR, Complainant, v. Eugene Keith POLK, Respondent.
    No. SC11-2500.
    Supreme Court of Florida.
    Nov. 14, 2013.
    John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, and Olivia Paiva Klein, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Lois B. Lepp and Karen Sunneberg of Lois B. Lepp, P.A., Pensacola, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent Eugene Keith Polk be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for ten days. The Florida Bar has filed a petition for review of the report. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, we approve the findings of fact and recommendation of guilt, but disapprove the referee’s recommended sanction of a ten-day suspension. We conclude that Polk’s misconduct warrants a ninety-day suspension from the practice of law in Florida.

FACTS

On December 29, 2011, The Florida Bar filed its “Complaint For Minor Misconduct” against Polk, alleging, in pertinent part, that Polk had been negligent in his representation of a client in a postconviction proceeding pursuant to Florida Rule of Criminal Procedure 3.850. The Bar alleged that Polk failed to communicate with his client for almost two years, that Polk failed to return documents provided by the client to Polk for his representation, that Polk submitted to the postconviction court only two of three mental health reports the client provided to Polk, and that Polk failed to respond in writing to the Bar’s inquiry letter. The Bar charged that Polk violated the following Rules Regulating The Florida Bar: 4-1.1 (Competence); 4-1.3 (Diligence); 4-1.4 (Communication); 4-1.16(d) (Protection of Client’s Interest); and 4-8.4(g) (Failure to Respond in Writing to The Florida Bar). A referee was appointed to consider the matter.

Polk, who was pro se at the time, did not file his answer to the Bar’s Complaint until February 17, 2012. On February 21, 2012, the Bar filed a Motion for Summary Judgment, asserting that Polk failed to timely file answers to the Bar’s Requests for Admissions. The referee set a hearing on the Bar’s Motion for Summary Judgment for March 30, 2012, upon agreement of the parties. On March 30, 2012, Polk made a motion for continuance via telephone. The referee granted the motion in part and denied it in part, and postponed the summary judgment hearing by one hour. Nevertheless, Polk failed to appear at the hearing. In connection with seeking the continuance, the referee subsequently found that Polk “misrepresented to the Referee and Bar counsel ... that he had just learned one week earlier about a[n] ... incident involving his minor daughter, and had learned of the seriousness of the offense the night of March 29, 2012. He represented that he needed to pick up his daughter at school that afternoon and take her to the doctor.”

The referee ultimately granted the Bar’s motion for summary judgment, thus finding that Polk failed to communicate with his client for almost two years and failed to return to the client his documents when requested, and that Polk failed to respond in writing to the Bar’s inquiry letter.

Thereafter, the referee held a sanction hearing in the case, and has submitted a Report of Referee for the Court’s review.

At the sanction hearing, Polk testified that he had been suffering from nightmares following his investigation of an aviation accident while serving on active duty in the Marine Corps, and that he had been appointed to represent the client within four months after returning from active duty status. Polk further testified that he had been in psychotherapy for five months. One of Polk’s witnesses, Dr. James Larson, testified that Polk suffered from major depressive disorder and was responding to treatment. At the conclusion of the hearing, the Bar argued that the case law supported a suspension ranging between ten and ninety-one days, but that it was asking for a thirty-day suspension with a three-year probationary period.

The referee recommends that Respondent be found guilty of violating the following Bar Rules: 4-1.3 (Diligence); 4-1.4 (Communication); 4-1.16(d) (Protection of Client’s Interests); and 4-8.4(g) (Failure to Respond in Writing to The Florida Bar). The referee does not recommend a finding of guilt with respect to rule 4-1.1 (Competence), and the Bar does not challenge that recommendation on review.

The referee found the following aggravating factors: pattern of misconduct; multiple offenses; misrepresentation during the course of the disciplinary proceedings; and substantial experience in the practice of law. The referee found the following mitigating factors: no prior disciplinary offenses; absence of dishonest or selfish motive; personal or emotional problems; physical or mental disability or impairment; and interim rehabilitation.

As to the sanction, the referee recommends that the Court impose a ten-day suspension and that Polk be placed on probation for three years with specific conditions, as discussed later in this opinion. Finally, the referee awarded costs to the Bar in the amount of $4,069.68.

ANALYSIS

Polk does not challenge the referee’s recommendation pertaining to guilt, and any such challenge is deemed waived. See Florida Bar v. Swann, 116 So.3d 1225, 1234 (Fla.2013).

As previously stated, the Bar opposes the referee’s recommended ten-day suspension; the Bar now seeks a ninety-one-day suspension. 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 Florida 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 Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

We agree with the referee in this case that a suspension is warranted. See Standard 4.42(b) (“Suspension is appropriate when ... a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.”) and Standard 7.2 (“[s]us-pension 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.”) However, we disapprove the length of the suspension recommended by the referee. We hold instead that a ninety-day suspension is appropriate.

Polk’s misconduct with respect to his representation of a client included failing to communicate for nearly two years with the client and failing to return documents to the client despite numerous requests by the client. With respect to the disciplinary proceedings, Polk failed to respond to The Florida Bar for several months and then only after the client’s complaint had been referred to the grievance committee and Bar counsel had contacted Polk about his failure to respond. Polk failed to timely respond to the Bar’s complaint and failed to respond to the Bar’s Request for Admissions. Polk failed to respond to the Bar’s Motion for Summary Judgment and failed to appear at the motion hearing by telephone as permitted by the referee. Finally, Polk’s testimony at the sanction hearing contradicted what he had previously represented to the referee and Bar counsel with respect to his request for a continuance on the motion for summary judgment. Consequently, the referee found as an aggravating factor Polk’s misrepresentation to the referee.

Case law demonstrates that while a ten-day suspension is not appropriate, a ninety-day suspension is proper.

A ninety-day suspension was imposed in Florida Bar v. Brown, 978 So.2d 107 (Fla.2008), where the lawyer had a conflict of interest in representing both a driver and passenger, and failed to act with reasonable diligence and made a misrepresentation to the court in the course of representing the passenger. Id. at 113. In Florida Bar v. Lecznar, 690 So.2d 1284 (Fla.1997), a ninety-day suspension was imposed where the attorney failed to pursue his clients’ personal injury claims within the statute of limitations, resulting in a loss of opportunity to recover upon those claims, and misrepresented to the clients the status of their claims. Id. at 1287-88.

Cases where a ninety-one-day suspension was imposed involve conduct more egregious than that found in this case. For example, in Florida Bar v. Batista, 846 So.2d 479, 485 (Fla.2003), the Court imposed a ninety-one-day suspension where the lawyer failed to competently and diligently represent his clients, failed to communicate with clients, and engaged in witness tampering. In Florida Bar v. Summers, 728 So.2d 739, 742 (Fla.1999), the Court imposed a ninety-one-day suspension for failure to comply with numerous trial court directives in a forfeiture case and failure to respond to inquiries from the Bar. In addition, in Florida Bar v. Schramm, 668 So.2d 585 (Fla.1996), a ninety-one-day suspension was warranted where the lawyer made false statements pertaining to calendar conflicts to judges in two separate cases and failed to take any action to represent a client after accepting money for the representation. Id. at 587-88.

Accordingly, we find that the referee’s recommendation of a ten-day suspension is unsupported. Based upon Polk’s misconduct with respect to his representation of a client, the aggravating and mitigating factors, including Polk’s conduct before the referee, the Standards, and applicable case law, we disapprove the referee’s recommended sanction and instead suspend Polk for a period of ninety days.

CONCLUSION

Accordingly, we approve the referee’s findings of fact, recommendations of guilt, and award of costs. Further, we disapprove the referee’s recommendation of a ten-day suspension. Eugene Keith Polk is hereby suspended from the practice of law in Florida for ninety days, to be followed by three years’ probation. As the conditions of probation, Polk is directed to contact Florida Lawyers Assistance, Inc. (FLA, Inc.) and schedule a substance abuse evaluation within thirty days of the date of this Court’s final order in the case, participate in an evaluation for substance abuse with a FLA, Inc.-approved substance abuse evaluator within sixty days of this Court’s final order, and if recommended, enter into a FLA, Inc. contract for substance abuse services. In addition, Polk shall also enter into a FLA, Inc. contract for supervision and continuation of his psychotherapy treatment plan with Dr. James Larson or any other licensed, certified psychotherapist amenable to FLA, Inc. and The Florida Bar. The suspension will be effective thirty days from the filing of this opinion so that Polk can close out his practice and protect the interests of existing clients. If Polk 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. Polk shall fully comply with Rule Regulating the Florida Bar 3 — 5.1(h) (Notice to Clients). Further, Polk shall accept no new business from the date this opinion is filed until the suspension is completed.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Eugene Keith Polk in the amount of $4,069.68, for which sum let execution issue.

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

LEWIS, J., dissents.

      . Polk’s answer was untimely filed. See R. Regulating Fla. Bar 3-7.6(h)(2) ("All pleadings of the respondent must be filed within 20 days of service of a copy of the complaint.”).


text:
    THE FLORIDA BAR, Complainant, v. Russell Samuel ADLER, Respondent.
    No. SC11-1863.
    Supreme Court of Florida.
    Nov. 14, 2013.
    John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL; and Kenneth H.P. Bryk, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.
    Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, FL; and Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent Russell Samuel Adler be found guilty of professional misconduct and suspended from the practice of law for thirty days. We have jurisdiction. See art. V, § 15, Fla. Const.

For the reasons more fully explained below, we approve the referee’s findings of fact, as well as her recommendations that Respondent be found guilty of violating the Rules Regulating the Florida Bar. We disapprove the referee’s recommendation that Respondent be suspended for thirty days. Considering Respondent’s improper conduct, and especially his false statements and actions to obtain a letter making false statements from his law firm, we conclude that a ninety-one-day suspension is the appropriate sanction.

FACTS AND PROCEDURAL HISTORY

The Florida Bar filed a complaint against Respondent Russell Samuel Adler, alleging various instances of misconduct relating to misrepresentations made to an apartment board and relating to his failure to use proper client settlement statements in connection with the practice of law. Specifically, the Bar alleged that Respondent had violated Rules Regulating the Florida Bar 3-4.3 (misconduct and minor misconduct), 4-1.5(f)(5) (closing statement to be executed upon conclusion of representation), 4-8.4(a) (violating or attempting to violate the rules, or knowingly assisting or inducing another to do so, or doing so through the acts of others), and 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). A hearing was held before a referee, and subsequently, the referee submitted her report to the Court, in which she made the following findings of fact.

Respondent was admitted to The Florida Bar on October 15,1986. From February 1, 2005, until its dissolution on or about November 1, 2009, Respondent was employed as an attorney by the law firm of Rothstein, Rosenfeldt, and Adler (“RRA”). Partners Rothstein and Rosenfeldt were the only equity shareholders in RRA. Around the time Respondent joined RRA in 2005, Mr. Rothstein advised Respondent that he would receive equity shares in RRA if Respondent met certain goals. However, despite his use of the title “Shareholder” and being designated as the vice president of RRA, Respondent testified that he- never received any equity shares in RRA.

While employed by RRA, in or about August 2009, Respondent purchased a cooperative apartment in New York City for which he obtained financing from Mr. Rothstein and/or entities created and funded by Mr. Rothstein. Respondent borrowed funds and signed a promissory note and mortgage for a loan that represented approximately 90% of the purchase price. Respondent took a payroll advance from RRA for the remaining 10% of the purchase price for which he also signed a promissory note. Although Respondent disclosed to the cooperative apartment board that he had borrowed 90% of the purchase price, he did not disclose that he had borrowed the other 10% by taking the payroll advance for which Respondent had signed a promissory note. The payroll advance was another loan. Respondent believed that the cooperative apartment board had a policy not to approve the purchase of a cooperative apartment where 100% of the purchase price was financed.

Also, Respondent advised a real estate broker involved in the purchase of the cooperative apartment, and the cooperative apartment board through the real estate broker, that Respondent had a 20% equity share in RRA. Although Respondent subjectively thought that he should have the equity share, he knew that he did not. Thus, Respondent’s assertions were untrue. He never had any equity shares in RRA at any time.

Respondent asked Mr. Rothstein, an equity shareholder in RRA, to direct the Chief Financial Officer for RRA to issue a letter to the cooperative apartment board that misrepresented Respondent’s financial status as a shareholder, Respondent’s finances, and Respondent’s access to additional funds. The letter, with modifications, was issued by the chief financial officer to the cooperative board.

Moreover, Respondent was the chair of RRA’s tort litigation practice group. During Respondent’s tenure managing the practice group for approximately four years, neither Respondent nor any other attorney who participated in personal injury cases associated with the tort litigation cases properly executed the client settlement statements in accordance with the requirements of the Rules Regulating The Florida Bar. See R. Regulating Fla. Bar 4-1.5(f)(5) (stating that the copy of the closing statement “shall be executed by all participating lawyers, as well as the client, and each shall receive a copy.”). None of the settlement statements prepared by Respondent’s department contained a space or line for a lawyer to sign the settlement statement. Respondent testified that he was responsible for supervising the attorneys in his group and for reviewing the settlement statements.

After making these factual findings, the referee recommended that Respondent be found guilty of violating rule 3-4.3 (misconduct and minor misconduct), rule 4-1.5(f)(5) (closing statement to be executed upon conclusion of representation), rule 4-8.4(a) (violating or attempting to violate the rules, or knowingly assisting or inducing another to do so, or doing so through the acts of others), and rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). As for discipline, the referee recommended that Respondent be suspended from the practice of law for thirty days. In recommending this sanction, the referee found two aggravating factors — a dishonest or selfish motive and substantial experience in the practice of law. The referee also found the following mitigating factors: absence of prior disciplinary record; full and free disclosure to disciplinary board and cooperative attitude toward proceedings; character or reputation; and remorse. Costs were awarded to The Florida Bar as the prevailing party, in the amount of $3,671.75.

ANALYSIS

Neither party challenges the referee’s findings of fact or recommendations of guilt. The Bar challenges the referee’s recommended sanction of a thirty-day suspension, arguing that a ninety-one-day suspension is the appropriate sanction. 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 our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

The case law and the Standards for Imposing Lawyer Sanctions support a suspension where, as in this case, a respondent engages in dishonest conduct that negatively impacts the legal profession. See Fla. Bar v. Schultz, 712 So.2d 386, 388 (Fla.1998) (“[Ejngaging in conduct involving dishonesty, misrepresentation, fraud, or deceit warrants suspension”); Fla. Stds. Imposing Law. Sanes. 7.2 (“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”).

With regard to the length of the suspension, Respondent asserts that the referee’s recommended sanction of a thirty-day suspension is supported. The Bar argues that a ninety-one-day suspension is appropriate. In light of Respondent’s misconduct in seeking, from his law firm, a letter with false information about his position and financial status, and given his deliberate false statements to the cooperative apartment board, we find that a ninety-one-day suspension is appropriate.

In Florida Bar v. Nuckolls, 521 So.2d 1120 (Fla.1988), the respondent represented a real estate partnership which was selling townhouse units. Even though Nuckolls knew that purchasers of seven of the units paid only $36,000 per unit, he prepared contracts and closing documents that falsely indicated that the units would be sold for $45,000 each with a $9,000 down payment. Id. at 1121. Lenders advanced mortgage loans on those seven units based at least partly on the respondent’s written representations that the purchasers had made or would make the down payments and that the $36,000 reflected only 80% of the purchase price. The respondent received a check from one of the partners to cover four of the down payments, but the respondent never cashed the check. Instead, he sent lenders copies of the check as proof that the down payments had been received, even though the respondent knew the down payments had not been made. Finally, the respondent acted improperly while in the role as a land trustee. Id. The Court characterized the respondent’s misconduct as “an active breach of trust” and imposed a ninety-day suspension. Id. at 1122.

Here, as in Nuckolls, Respondent made misrepresentations regarding the finances to a third party. Moreover, Respondent actively sought a letter from his law firm in order to further his scheme to misrepresent his financial status. The respondent in Nuckolls was given a ninety-day suspension, but that case was decided in 1988. Since then, this Court has moved towards stronger sanctions for attorney misconduct. See Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002) (stating that some of the cited cases “are dated and do not reflect the evolving views of this Court.... In recent years, this Court has moved towards stronger sanctions for attorney misconduct.”). Respondent’s deliberate and deceptive conduct, along with his failure to comply with rule 4-1.5(f)(5), warrants a ninety-one-day suspension. Cf. Fla. Bar v. Hall, 49 So.3d 1254, 1261 (Fla.2010) (“The Court expects ‘members of The Florida Bar to conduct their personal business affairs with honesty and in accordance with the law.’ ”) (quoting Fla. Bar v. Baker, 810 So.2d 876, 882 (Fla.2002)).

CONCLUSION

Accordingly, we approve the referee’s findings of fact and recommendations of guilt. We disapprove the referee’s recommended discipline and instead impose a ninety-one-day suspension. Russell Samuel Adler is hereby suspended from the practice of law for ninety-one days. The suspension will be effective thirty days from the date of this opinion so that Adler can close out his practice and protect the interests of existing clients. If Adler 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. Russell Samuel Adler shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Adler shall accept no new business from the date of this opinion until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Russell Samuel Adler in the amount of $4,891.35, for which sum let execution issue.

It is so ordered.

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

LEWIS, J., dissents.

      . The Bar has filed an "Amended Statement of Costs” which addresses costs the Bar has incurred in bringing this case before the Court. Respondent did not challenge the Bar’s amended statement. We approve the Bar’s request for the additional costs, and hereby award costs to the Bar in the total amount of $4,891.35.


text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013-01.
    No. SC13-75.
    Supreme Court of Florida.
    Nov. 14, 2013.
    Honorable Joseph A. Bulone, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clear-water, FL, and Bart Schneider, Senior Attorney, Office of State Court Administrator, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has proposed the following new criminal jury instruction for publication and use: 8.21 ([Assault] [Aggravated Assault] [Battery] [Aggravated Battery] by a Detainee Upon [Another Detainee] [a Visitor]). We have jurisdiction. See art. V, § 2(a), Fla. Const.

Previously, the Committee published a prior version of the proposal in the April 30, 2011, edition of The Florida Bar News. No comments were received and the Committee filed its proposal in Case No. SC11-1313. The proposal to amend instruction 8.21 was severed from the earlier case when the Court subsequently requested that the Committee reconsider its proposal in light of the Court’s September 13, 2012, decision in Hopkins v. State, 105 So.3d 470 (Fla.2012). See In re Standard Jury Instructions in Criminal Cases—Report No. 2011-03, 95 So.3d 868, 868-69 (Fla.2012). The Court published the Committee’s updated proposal in the March 15, 2013, edition of The Florida Bar News. No comments were received.

The Committee proposes new instruction 8.21 because an instruction for the offense of assault or battery, or aggravated assault or aggravated battery, by a detainee upon another detainee or a visitor, under section 784.082, Florida Statutes (2012), does not currently exist. The instruction tracks the language of the statute. It also refers the reader to the applicable portions of the instructions for assault, battery, aggravated assault, and aggravated battery, because those crimes can be committed in multiple ways — e.g., battery can be committed by an intentional touching or by intentionally causing bodily harm. For lesser-included offenses, the instruction directs the reader to the relevant instruction, i.e., assault, aggravated assault, battery, or aggravated battery, for the appropriate lesser-included offenses.

Accordingly, we hereby authorize the publication and use of new instruction 8.21, set forth in the appendix to this opinion. In doing so, we express no opinion on the correctness of the instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions, nor contesting the legal correctness of the instruction. We further caution all interested parties that any comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining. The instruction as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

8.21 [ASSAULT] [AGGRAVATED ASSAULT] [BATTERY] [AGGRAVATED BATTERY] BY A DETAINEE UPON [ANOTHER DETAINEE] [A VISITOR]

§ 784.082, Fla. Stat.

To prove the crime of (insert crime), the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was detained in a [prison] pail] [detention facility],
2. At the time, (defendant) committed [an assault] [an aggravated assault] [a battery] [an aggravated battery] against (victim).
3. (Victim) was a [detainee] [visitor] in that facility.
Give as applicable.
An assault is legally defined as (insert applicable portions of instruction 8.1 ).
An aggravated assault is legally defined as (insert applicable portions of instruction 8.2).
A battery is legally defined as (insert applicable portions of instruction 8.3).
An aggravated battery is legally defined as (insert applicable portions of instruction 8.4 and/or 84(a) )•
Lesser Included Offenses

See relevant instructions on offenses in element 2 for appropriate lesser-included offenses.

Comment

This instruction was adopted in 2013.

      . In Hopkins, the Court held that section 784.082 of the Florida Statutes (2007) applied to juveniles detained in juvenile facilities. 105 So.3d at 475.


text:
    Danny Lee ADAMS, Appellant, v. Debbie Jo ADAMS a/k/a Debbie Zarate, Appellee.
    Nos. 3D06-413, 3D06-152, 3D06-154, 3D05-3002.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Danny Lee Adams, in proper person.
    Debbie Jo Adams a/k/a Debbie Zarate, in proper person.
    Before COPE, C.J, and WELLS and SUAREZ, JJ.
   On Order to Show Cause

PER CURIAM.

On the Court’s own motion, the Court issued an order to Danny Lee Adams to show cause why the privilege of proceeding in forma pauperis should not be revoked for abuse of the judicial system. See Attwood v. State, Dep't of Corr., 660 So.2d 358, 360 (Fla. 4th DCA 1995). The appellant is engaged in postjudgment litigation arising out of a dissolution of marriage. He has filed fifteen appeals or petitions in this Court since 2002. The Court may deny in forma pauperis status for litigants who abuse the judicial system. See id. at 360.

On review of appellant Danny Lee Adams’ litigation history in this Court and his response to this Court’s Order to Show Cause, it appears that appellant is under the impression that all rulings in post-judgment proceedings can be immediately appealed. That is not so.

As explained in Little Arch Creek Properties, Inc. v. Medical Facilities Development, Inc., 698 So.2d 926, 927 (Fla. 3d DCA 1997):

[T]his court has rejected the proposition that all post-judgment orders are appealable under Rule 9.130(a)(4). In Grafman v. Grafman, 488 So.2d 115 (Fla. 3d DCA 1986), the court explained that where a post-judgment motion in effect initiates a new proceeding which will culminate in a new final order, the non-final orders entered in the new proceeding “must be considered non-final orders entered prior to final order, not after final order, and accordingly are not appealable as ‘non-final orders entered after final order’ under Fla. R. App. P. 9.130(a)(4).”

See also Philip Morris Inc. v. Jett, 802 So.2d 353, 355 (Fla. 3d DCA 2001); Philip J. Padovano, Florida Appellate Practice § 22.15, at 463-466 (2006); 3 Fla. Jur.2d Appellate Revieiv § 79 (2005).

In addition, it has been plainly established that disagreement with rulings is not a proper basis to seek disqualification of a trial judge, see Johnson v. Johnson, 725 So.2d 1209, 1216 (Fla. 3d DCA 1999), or general magistrate, and any such request by appellant is therefore non-meritorious.

In light of appellant’s misapprehension we exercise our discretion to grant in forma pauperis status to defendant at this time. However, we advise appellant that any further abuse of the appellate process will result in our denial of in forma pauper-is status.


text:
    Leon JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2190.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2008.
    Leon Jackson, in proper person.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.

      Before COPE and RAMIREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm Leon Jackson’s conviction but reverse his sentence. After the jury found Jackson guilty of burglary of a dwelling and petit theft, the trial court held a sentencing hearing and stated: “Well, the problem that you have is because you’re a violent career criminal, a GORT, the law says I’ve got to sentence you to a 30-year minimum/mandatory. There’s nothing I can do.”

The court then sentenced Jackson as a violent career criminal under section 775.084(l)(d), Florida Statutes (2003), and imposed a sentence, on count one, of forty years in state prison with a thirty-year mandatory minimum; and on count two, to credit for time served.

As in Calderon v. State, 745 So.2d 535, 536 (Fla. 3d DCA 1999), the record shows that the trial court mistakenly believed that a violent career criminal sentence was mandatory. See State v. Harris, 718 So.2d 933, 934 (Fla. 3d DCA 1998) (stating that “[t]he statute calls for the trial court to impose sentence as a violent career criminal unless ‘the court finds ... that it is not necessary for the protection of the public ... ’ ”). The quoted language from the sentencing hearing transcript reflects that the trial court believed it had no choice but to sentence Jackson as a violent career criminal to a minimum mandatory sentence of thirty years.

We therefore affirm Jackson’s conviction, but reverse and remand for resen-tencing.


author: PER CURIAM. COPE, J.

text:
    Anthony COOPER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2107.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2008.
    Rehearing Denied Jan. 20, 2009.
    Anthony Cooper, in proper person.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before COPE, CORTEÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring).

The sole issue raised in the trial court by the appellant’s motion under Florida Rule of Criminal Procedure 3.800(a) was an argument under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). I agree that the issue is without merit. Further, the appellant argues that his sentence exceeds the legal maximum, but if he was, in fact, sentenced as a violent career criminal, then a sentence of fifteen years with a mandatory minimum term of ten years is a legal sentence. § 775.084(4)(d)3., Fla. Stat. (2000).

In his brief here, however, the defendant also argues that he was never sentenced as a violent career criminal (“VCC”). In its response, the State acknowledges that this issue cannot be resolved without a transcript of the appellant’s sentencing, and such a transcript has never been ordered.

Because the appellant did not raise this claim (that the sentencing order deviates from the oral pronouncement), that issue is not properly before us. If the appellant contends that he was never sentenced as a VCC, then that claim must be filed in the trial court in the first instance.

       The scoresheet and earlier documents in the appellant’s case have inconsistently stated that the defendant was sentenced as a habitual violent felony offender, or a habitual felony offender, or a violent career criminal.


text:
    Gerardo BONET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2722.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2008.
    Gerardo Bonet, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: SUAREZ, J.

text:
    Andres A. HERRERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2880.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2008.

      Andres A. Herrera, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Andres A. Herrera challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion for credit for jail and prison time served filed in the trial court in September 2008, and ruled on by the trial court on September 25, 2008.

On appeal, this Court must reverse unless the records attached to the trial court’s order conclusively demonstrate that the defendant is not entitled to the requested relief. See Langdon v. State, 947 So.2d 460, 460-61 (Fla. 3d DCA 2006) (reversing the summary denial of the defendant’s 3.800(a) motion because the trial court “did not attach to its order portions of the transcript conclusively demonstrating that the defendant waived entitlement to credit for time served in prison”). Because the record before us fails to make the required showing, we reverse the trial court’s order and remand for further proceedings. Should the trial court again enter an order summarily denying the motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

      . Defendant has filed with this Court, on December 5, 2008, another appeal to allow additional credit for time served. We do not address that appeal in this opinion as the issue raised in that notice of appeal does not appear to have been raised in the trial court.


text:
    Gustavo VENTA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2757.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2008.
    Gustavo Venta, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., SHEPHERD, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Gustavo Venta (defendant) appeals from the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

Defendants motion raises several grounds for relief. We agree with the trial court that only one ground was timely raised — that defendants plea was involuntary because the trial court failed to advise him of the deportation consequences of the plea. Defendants motion fails to allege that the conviction in this case is the sole basis for his deportation as required under State v. Green, 944 So.2d 208 (Fla.2006). See, e.g., Dumenigo v. State, 988 So.2d 1201 (Fla. 3d DCA 2008); Rodriques v. State, 980 So.2d 1203 (Fla. 4th DCA 2008).

Accordingly, we affirm the order under review, but remand for the trial court to give defendant an opportunity to file an amended motion correcting the deficiency, if possible. Spera v. State, 971 So.2d 754 (Fla.2007).

Affirmed, and remanded with instructions.


text:
    Jerry Carl MILBROOK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2990.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2008.
    Jerry Carl Milbrook, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Stephen TOLAR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-268.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Stephen Tolar, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).


text:
    Robert DUNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1383.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Robert Dunson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ and CORTIÑAS, JJ.
   On Motion to Recall Mandate

PER CURIAM.

We deny Robert Dunson’s motion to recall the mandate issued on August 28, 2008.

Denied.


text:
    Efrain GONZALEZ, Rolf D. Johnson, and Florida Tax Deeds, Inc., a Florida corporation, Appellants, v. Violeta GOMEZ, and Crestmark Ltd., a British Virgin Islands company, Appellees.
    No. 3D08-1339.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Linda L. Carroll, Miami, for appellants.
    Tom Pennekamp, Jr.; Ricardo E. Pines, Coral Gables, for appellees.
    Before COPE, RAMIREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Farrell v. Phillips, 414 So.2d 1119 (Fla. 4th DCA 1982).


text:
    James McMILLIAN, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D08-3262.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.

      James McMillian, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before GERSTEN, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

The petition for habeas corpus is denied. See Fla. R. Crim. P. 3.140(g); State v. Perkins, 977 So.2d 643, 645-46 (Fla. 5th DCA 2008); Alba v. State, 541 So.2d 747 (Fla. 3d DCA 1989).


text:
    Glenn DARKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2417.
    District Court of Appeal of Florida, Third District.
    July 22, 2009.
    Rehearing Denied Aug. 11, 2009.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., assistant Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. State v. Williams, 742 So.2d 509 (Fla. 1st DCA 1999).


text:
    Shawn SMALLS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1983.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 2009.
    Rehearing Denied Oct. 8, 2009.
    Shawn Smalls, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, LAGOA and SALTER, JJ.
   PER CURIAM.

Affirmed. § 921.16, Fla. Stat. (2001); Bilyou v. State, 404 So.2d 744 (Fla.1981); State v. Segarra, 388 So.2d 1017 (Fla.1980).


text:
    Derrick Jermaine KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2877.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Derrick Jermaine Knight, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Derrick Knight appeals the denial of a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate his sentence. A trial court’s denial of a 3.800(c) motion to mitigate sentence is not appealable. Royal v. State, 736 So.2d 157, 157 (Fla. 3d DCA 1999). Accordingly, we dismiss the appeal.

Appeal dismissed.


author: SHEPHERD, J.

text:
    The STATE of Florida, Petitioner, v. Rickey Bernard ROBERTS, Respondent.
    No. 3D09-2379.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Bill McCollum, Attorney General, and Sandra S. Jaggard, Assistant Attorney General, for petitioner.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region of Florida, and Martin J. McClain, Special Assistant Regional Counsel (Wilton Manors), for respondent.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   ORDER OF TRANSFER

SHEPHERD, J.

This case is before us on the State’s Petition for Certiorari seeking review of an order of the Miami-Dade Circuit Court denying its motion to disqualify defense counsel.

As the Florida Supreme Court has made clear its appellate jurisdiction over death penalty cases includes not just exclusive jurisdiction to review all collateral proceedings that develop in those actions, but extends as well to collateral proceedings in cases such as this, where the Court has vacated a death sentence and remanded for further proceedings, see Roberts v. State, 840 So.2d 962, 973 (Fla.2002), we order this case to be transferred to the Florida Supreme Court for further proceedings. See Fla. R.App. P. 9.040(b)(1); State v. Fourth Dist. Ct.App., 697 So.2d 70, 71 (Fla.1997).

SO ORDERED.


text:
    BANCO INDUSTRIAL DE VENEZUELA, C.A., Miami Agency, etc., and BIV Investments and Management, Inc., etc., a/k/a/ BIV Inversores y Promotores, Appellants/Cross-Appellees, v. Esperanza DE SAAD and Joseph Beeler, P.A., Appellees/CrossAppellants.
    No. 3D08-1713.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2010.
    Hogan & Hartson, Carol A. Licko, Richard C. Lorenzo, Mark R. Cheskin, and Brian L. Lerner, Miami, and Jessica L. Ellsworth, Washington, D.C., pro hac vice, for appellants/cross-appellees.
    William L. Richey, Miami; H. Eugene Lindsey and Milton M. Ferrell, Miami, for appellee/cross-appellant, Joseph Beeler; Petros & Elegant and William L. Petros, Coral Gables; Hicks, Porter, Ebenfeld & Stein and Mark Hicks, Dinah S. Stein and Shannon Kain, Miami, for appellee/cross-appellant, Esperanza de Saad.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

On Motion to Stay Mandate

Appellants/Cross-Appellees/Defendants, Banco Industrial de Venezuela, C.A., Miami Agency, etc., and BIV Investments and Management, Inc., a/k/a BIV Inversores y Promotores (collectively “BIV”), have filed a notice under Rule 9.120, Florida Rule of Appellate Procedure, invoking the discretionary jurisdiction of the Florida Supreme Court to review this Court’s decision in this matter. See Banco Industrial De Venezuela, C.A. v. de Saad, 21 So.3d 46 (Fla. 3d DCA 2009). We now address Banco Industrial’s and BIV’s Motion to Stay the Effect of, or in the Alternative, Withdraw This Court’s Mandate pending resolution of their Notice to Invoke the Discretionary Jurisdiction of the Florida Supreme Court.

Subsequent to this Court’s decision and the issuance of the mandate, Banco Industrial and BIV filed a notice to invoke discretionary jurisdiction with the Florida Supreme Court. Pursuant to Rule 9.120, these parties have requested this Court stay or withdraw the mandate pending determination by the Florida Supreme Court. The Committee Notes to Rule 9.120 state the following concerning motions to stay mandate:

The advisory committee was of the view that the District Courts should permit such stays only when essential. Factors to be considered are the likelihood that jurisdiction will be accepted by the Supreme Court, the likelihood of ultimate success on the merits, the likelihood of harm if no stay is granted, and the remediable quality of any such harm.

After a review of this Court’s decision, and the motion and response in this matter, it appears to this Court that Banco Industrial’s and BIVs motion fails on the first two factors, the likelihood that the Supreme Court will accept jurisdiction and the likelihood of ultimate success on the merits.

Banco Industrial and BIV argue that the Supreme Court will accept jurisdiction claiming conflict between our decision and decisions of certain other District Courts of Appeal. Upon review of those decisions we, again, do not find conflict. Therefore, in the opinion of this Court, there is not a likelihood that the Supreme Court will accept jurisdiction.

Motion to Stay Mandate is denied.


text:
    Rooney Lee THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-558.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Rooney Lee Thomas, in proper person.
    Bill McCollum, Attorney General, Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

We treat Appellant’s appeal as an appeal from the denial of a Rule 3.850 motion and, finding no merit, we affirm.

Affirmed.


text:
    Marc FLAMER, Appellant, v. SOUTHERN HOMES OF PALM BEACH, LLC, Appellee.
    No. 3D09-2397.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Rehearing Denied May 4, 2010.
    Saraga & Lipshy and Joseph Stern, Del-ray Beach, for appellant.
    Michael J. Yates and Osnat N. Dorot, Miami, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Mailloux v. Briella Townhomes, LLC, 3 So.3d 394 (Fla. 4th DCA 2009).


text:
    Ervin LEYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-229.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Ervin Leyton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.


text:
    Francisco RAZURI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2228.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Francisco Razuri appeals his conviction and sentence for attempted second degree murder. He asserts error in the trial court’s failure to conduct a competency hearing. We affirm.

The record demonstrates that Razuri’s issue is meritless. The court appointed several mental health experts to evaluate Razuri’s competence at the time of committing the offense and for purposes of standing trial. Thereafter Razuri’s sanity at the time of the offense was evaluated. None of the evaluations concluded that Razuri had any competence or sanity issues.

“Trial courts are to order competency hearings whenever it appears necessary based on the defendant’s history or behavior in court.” Boyd v. State, 910 So.2d 167, 187 (Fla.2005); Fla. R.Crim. P. 3.210(b) (providing court shall order competency hearing if there are reasonable grounds to believe defendant is not mentally competent to proceed). There is no basis to conclude, on the record before us, that the court abused its discretion in not holding such a hearing.

Affirmed.

      . However, Florida Rule of Criminal Procedure 3.212(b) requires an order finding the defendant competent. To comply with this requirement, on remand, the trial court shall enter an order nunc pro tunc with this finding. See Corbitt v. State, 744 So.2d 1130 (Fla. 2d DCA 1999).


text:
    Susan GROGAN, Appellant, v. HERITAGE NH, LLC, Appellee.
    No. 09-1798.
    District Court of Appeal of Florida, Third District.
    June 23, 2010.

      Loring N. Spotter, Fort Lauuderdale, FL, for appellant.
    Kelley, Kronenberg, Gilmartin, Fiehtel & Wander and Angelo M. Filippi, Fort Lauderdale, FL, for appellee.
    Before GERSTEN and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Susan Grogan (“Grogan”) appeals from a summary judgment entered in favor of Heritage NH, LLC (“Heritage”) in an action for sexual harassment and retaliation. We affirm.

Grogan was hired as a business office manager (“B.O.M.”) for Heritage, where shortly thereafter Steven Ostreich (“Ostr-eich”) became her supervisor. Grogan and Ostreich lived near each other, and began carpooling to work. After about a month, Grogan stopped carpooling with Ostreich. Although Ostreich made no sexual advances toward her, Grogan believed that Ostreich wanted more than an employer-employee relationship. Grogan thought that Ostreich was making excuses to be near her and to call her at home. As an example, Grogan could only cite to Ostr-eich’s request that she meet him at a restaurant one weekend to interview a prospective employee.

At some point, Grogan complained to Heritage’s human resources director (“the HR director”) that Ostreich was following her to and from work. The HR director spoke to Ostreich and counseled him against inappropriate conduct. She told Grogan to call her if anything further occurred. Grogan indicated that Ostreich stopped following her for a while, but started again about three months later. However, Grogan did not report this to the HR director.

Meanwhile, Ostreich gave Grogan a good evaluation which resulted in Grogan getting a pay raise. In addition, Grogan presented Ostreich with a souvenir after a vacation. The following month, Grogan agreed to drive Ostreich to and from work for two weeks when Ostreich was unable to drive after having surgery.

Shortly thereafter, Grogan received an e-mail from the regional director raising concerns about her office’s collection efforts. Grogan also received a disciplinary action report for being loud and disrespectful at a staff meeting. Subsequently, Grogan spoke to Ostreich about applying for another position. Ostreich offered to help Grogan update her resume, and Gro-gan accepted. Thereafter, Grogan discovered that Ostreich arranged to interview Grogan’s friend for her position.

Ostreich went to Grogan’s home, and, when told she was not at home, waited in the parking lot for her. Grogan finally spoke with Ostreich in her back patio where Ostreich apologized for setting up the interview with Grogan’s friend. The next day, Ostreich sent Grogan flowers with a note signed Heritage and saying “I’m sorry ... I still want you around as B.O.M. for a long time.” After receiving the flowers, Grogan called the HR director again to complain about Ostreich.

After investigating, the HR director determined that Grogan was upset because of the performance and disciplinary issues and because Ostreich set up the interview to replace her. She believed that Grogan’s sexual harassment complaints were malicious. Soon thereafter, Heritage terminated Grogan’s employment.

Grogan subsequently filed the instant action against Heritage for sexual harassment and retaliation under Florida’s Civil Rights Act, sections 760.01-.il and 509.092, Florida Statutes (2009). The trial court entered summary judgment in favor of Heritage, and Grogan appealed.

Grogan contends that Heritage was not entitled to summary judgment because the record shows that Ostreich sexually harassed her and her employment was terminated because she complained. Heritage asserts that the trial court correctly entered summary judgment in its favor because Grogan failed to establish a prima facie case of sexual harassment and retaliation. We agree with Heritage.

A claim of sexual harassment based on a hostile work environment requires proof of five elements: (1) that the employee belongs to a protected group; (2) that the employee was subjected to unwelcome harassment; (3) that the harassment was based on the employee’s gender; (4) that the harassment was severe enough to affect a term, condition, or privilege of employment and to create a discriminatorily abusive working environment; and (5) that the employer knew or should have known of the harassment and failed to intervene. Russell v. KSL Hotel Corp., 887 So.2d 372, 377-78 (Fla. 3d DCA 2004). Where the alleged misconduct is by a direct supervisor, the employee does not have to prove the fifth element. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

In determining whether the conduct of complained meets the standard for the fourth element, courts consider four factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating; and (4) whether the conduct unreasonably interfered with the employee’s job performance. Maldonado v. Publix Supermarkets, 939 So.2d 290, 294 (Fla. 4th DCA 2006). “[T]he employee must subjectively perceive the harassment as sufficiently severe and pervasive to alter the terms and conditions of employment, and the subjective perception must be objectively reasonable,” i.e. “judged from the perspective of a reasonable person in the plaintiffs position, taking into consideration all the circumstances.” 939 So.2d at 294-95 (emphasis added).

Here, Grogan’s complaint does not satisfy the requirements of this element. A reasonable person in Grogan’s position would not have considered Ostreich’s conduct so severe or abusive that it interfered with her employment. Ostreich never made any sexual advances to Grogan, or in any other way obstructed Grogan’s ability to perform her job.

Because none of the conduct complained of could reasonably have led to a hostile work environment, Grogan failed to establish a prima facie claim for sexual harassment and retaliation. Accordingly, the trial court did not err in entering summary judgment in favor of Heritage.

Affirmed.


text:
    Craig WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-86.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2010.

      Craig Williams, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Craig Williams (“Williams”) appeals from an order summarily denying, as untimely, his petition for a writ of habeas corpus. We reverse.

The State petitioned to have Williams committed as a sexually violent predator under Florida’s Involuntary Civil Commitment of Sexually Violent Predators Act (“Jimmy Ryce Act”), section 394.910-.930, Florida Statutes (2007). After a jury trial, the trial court entered a final judgment of commitment, which Williams appealed. This Court affirmed the judgment of eom-mitment, issuing its mandate on May 29, 2009.

Williams subsequently filed a petition for writ of habeas corpus under Florida Rule of Civil Procedure 4.460. Rule 4.460 provides for filing a petition for habeas corpus from a civil commitment judgment “within two years after the judgment becomes final.” The rule also states that Florida Rule of Criminal Procedure 3.850 governs such habeas corpus proceedings.

For purposes of a Rule 3.850 postconviction proceeding, a judgment becomes final when direct review proceedings have concluded and jurisdiction returns to the trial court. See, e.g., Cardali v. State, 794 So.2d 719 (Fla. 3d DCA 2001). The same finality rule applies in Rule 4.460 habeas corpus proceedings.

Here, the commitment judgment became final when this Court issued its mandate on May 29, 2009. Thus, the petition for habeas corpus Williams filed on October 16, 2009, was within the Rule 4.460 two-year time period. Consequently, the trial court erred in denying the petition on the ground that it was untimely.

Accordingly, we reverse the order denying the petition for habeas corpus, and remand for further proceedings.

Reversed and remanded.


text:
    Bernard BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1845.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2010.

      Bernard Brown, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring).

The trial court reached the correct result, although the order contains an error. As a result of enhancement for the firearm, the offense of attempted first-degree murder with a firearm was a life felony, not a first-degree felony punishable by life. See § 775.087(l)(a), Fla. Stat. (1995). The judgment correctly classifies the offense. The sentence is legal.

      . According to the jury instructions in this Court’s file in Brown v. State, 818 So.2d 652 (Fla. 3d DCA 2002), the charge in the defendant's case was attempted premeditated murder, not attempted first-degree felony murder.


text:
    Gilberto BORY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1696.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2010.
    Gilberto Bory, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Gilberto Bory appeals the denial of his motion, which among other things, requested to commence speedy trial. Because this is not an appealable order, we treat the notice of appeal and initial brief as a petition for writ of prohibition, and deny the petition. See Fla. R.Crim. P. Rule 3.191(e) (requiring that a defendant be within state jurisdiction before he or she may demand speedy trial); Schuty v. State, 281 So.2d 507 (Fla. 1st DCA 1973) (treating appeal from denial of discharge on speedy trial grounds as writ of prohibition).


text:
    David AGHARAUMUNNA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1882.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2010.

      David Agharaumunna, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

David Agharaumunna appeals from a trial court order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for attachment of records that conclusively refute the appellant’s claim.

Agharaumunna violated his probation and upon sentencing was given no credit for time served. He filed a rule 3.800(a) motion seeking credit for the time he served prior to his probation violation. The trial court denied relief and the order states that the defendant was given no credit for time served “per plea agreement,” and attached the docket and sentence to support its decision. The docket and sentence, however, give no indication of a plea agreement and instead note that no credit for time served was given “per court.”

We agree with the defendant that the attached documents do not conclusively refute his claim that he is owed credit for time served. “Although a defendant can waive credit for time served in prison on the original sentence as part of a negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed.” Isaac v. State, 992 So.2d 304, 305 (Fla. 3d DCA 2008); see also Rudicil v. State, 31 So.3d 328 (Fla. 4th DCA 2010) (reversing for attachment of plea colloquy because the trial court’s note on the attached sentencing sheet that Rudicil entered a negotiated plea, and that per the terms of the plea, had waived entitlement to CTS, was insufficient to show knowing and express waiver of CTS). If Agharaumunna, during the probation violation pi-oceedings, did not clearly and expressly waive his right to credit for the time he served during the incarcerative part of his ox-iginal split sentence, then he is entitled to such. See Isaac, 992 So.2d at 305.

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts — including the transcript of the probation violation and plea hearing — conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Michael OJEDA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1639.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2010.
    Michael Ojeda, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. See Burdick v. State, 594 So.2d 267 (Fla.1992).


text:
    Denise MATHIS and Ricky Mathis, her husband, Appellants, v. RANDSTAD US, L.P., Randstad General Partner(US) LLC, Randstad North America, L.P., Randstad North American Partner, Inc., Amsterdam Clipper Beheer bv, Randstad Beheer bv, Randstad Clipper Beheer bv, Randstad Holding nv and Rederij Clipper Stad Amsterdam, Appellees.
    No. 3D09-3101.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2010.
    Rehearing Denied Dec. 29, 2010.

      Ginsberg & Schwartz and Arnold R. Ginsberg, Miami; Mustell & Borrow and Charles Mustell, for appellants.
    Rosemary Wilder, Ft. Lauderdale, for appellees.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Cook v. Crazy Boat of Key West, Inc., 949 So.2d 1202, 1203 (Fla. 3d DCA 2007); Krathen v. Sch. Bd. of Monroe Cnty., 972 So.2d 887 (Fla. 3d DCA 2007).