author: GERBER, J.

text:
    Santanna Roderick BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2409.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Carey Haughwout, Public Defender, and Richard Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from his conviction for battery on a law enforcement officer. He argues that the trial court erred in: (1) failing to make any genuineness findings concerning the state’s peremptory challenges to certain prospective jurors; and (2) prohibiting him from speaking with his counsel during a recess which the state requested during defense counsel’s direct examination of him. We agree with both arguments and reverse for a new trial.

On the first argument, the state exercised five peremptory challenges on prospective black jurors, thereby eliminating all prospective black jurors. Immediately after the state exercised each of those challenges, the defendant raised a Melbourne objection. See Melbourne v. State, 679 So.2d 759, 764 (Fla.1996) (“A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.”) (footnotes omitted). Following the state’s first challenge, the defendant also pointed out the state’s pattern of challenging black jurors.

After the defendant raised each Melbourne objection, the state responded with a facially race-neutral reason for each challenge at issue. See id. (“At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2).”) (footnote omitted).

However, the record is completely devoid of any indication that the trial court made any genuineness findings on any of the challenges. See id. (“If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3).”) (footnotes omitted). Rather, after the state responded with its facially race-neutral reason for each challenge, the trial court simply allowed the challenges to occur according to the following statements:

• As to Juror 3: ‘Yeah, okay. So I’ll find ... that’s a neutral reason.”
• As to Juror 6: “Yes. Okay....”
• As to Juror 13: “Okay ... All right....”
• As to Juror 14: “Okay, it’s race neutral.”
• As to Juror 25: “All right ... I’ll overrule the objection.”

The foregoing lack of genuineness findings was error. This is not a situation where the trial court did not “recite a perfect script or incant specific words in order to properly comply with its analysis under step three.” Hayes v. State, 94 So.3d 452, 463 (Fla.2012). Nor is this a situation where the court made genuineness findings without articulating its thought process on the pretext issue. See Wimberly v. State, 118 So.3d 816, 2012 WL 1859198 (Fla. 4th DCA May 23, 2012) (trial court’s genuineness finding was not clearly erroneous or an abuse of discretion where “the court was presented with relevant circumstances surrounding the strike and made a finding of genuineness” without articulating its thought process on the pretext issue).

Rather, this is a situation where the record is completely devoid of any indication that the trial court made any findings on whether the state was exercising its challenges of black jurors for a discriminatory purpose after the defendant alleged purposeful discrimination. Thus, we cannot assume that the court made any such genuineness findings. See Hayes, 94 So.3d at 463 (“[Wjhere the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court.”); King v. State, 106 So.3d 966, 968 (Fla. 4th DCA 2013) (“The court allowed each of the three strikes after finding the proffered reason was race-neutral. There is nothing in the on-the-record exchange regarding the striking of the jurors reflecting that the court engaged in the required genuineness analysis.”); Cook v. State, 104 So.3d 1187, 1190 (Fla. 4th DCA 2012) (“Since the trial court did not articulate any analysis on the record, and merely summarily ‘sustained] the strike’ of the state, we find that the trial court did not conduct the genuineness analysis of step three, as required by Melbourne.”) (alteration in original).

The state argues that the defendant waived the error by not renewing his objection before the jury was sworn. See Melbourne, 679 So.2d at 765 (“[W]e conclude that [the defendant] failed to preserve this issue for review because she did not renew her objection before the jury was sworn.”) (footnote omitted). However, the record contradicts the state’s argument. The record indicates that the defendant accepted the jury “subject to [his] previous objections,” thus preserving his Melbourne objections. See Cook, 104 So.3d at 1189 (“When the jury was seated, [the defendant] accepted the jury subject to his prior objections.”).

In fact, the morning after the jury was sworn, the state appeared to have realized the error because it notified the court: “[T]here needs to be a finding on the record whether or not the [state’s] strikes ... were in fact genuine ... I’d ask Your Honor to make that determination now, we forgot to do it at the time, but that does have to be made.” After rehearing the state’s reason to support three of the state’s five strikes, the court responded: “[T]he reason given by [the state] ... is a genuinely held ... belief, I think. I don’t think it’s a ... ruse, so I ... will find that the strike was based on a genuine race-neutral reason.”

That rehearing and its resulting finding were untimely and insufficient to cure the error. As our supreme court held in Blackshear v. State, 521 So.2d 1083 (Fla.1988):

When a [State v.] Neil [, 457 So.2d 481 (Fla.1984),] objection is properly raised, as it was in this instance, the time for the hearing has come. The requirements established by State [v. Slappy, 522 So.2d 18 (Fla.1988),] cannot possibly be met unless the hearing is conducted during the voir dire process. Only at this time does the court have the ability to observe and place on the record relevant matters about juror responses or behavior that may be pertinent to a Neil inquiry.

Id. at 1084. Moreover, even if the court had conducted the rehearing during voir dire, the rehearing and its resulting finding addressed only three of the state’s five strikes.

As a result of the foregoing error, we are required to reverse and remand for a new trial. See Hayes, 94 So.3d at 461 (“[T]he proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial.”) (citations omitted).

Although the foregoing error is sufficient to require a new trial, we also address the defendant’s second argument that the trial court erred in prohibiting him from speaking with his counsel during a recess which the state requested during defense counsel’s direct examination of him. The court denied the request on the ground that the defendant was “in the middle of his testimony.” Such a denial was error pursuant to our supreme court’s admonition in Amos v. State, 618 So.2d 157 (Fla.1993):

[N]o matter how brief the recess, a defendant in a criminal proceeding must have access to his attorney. The right of a criminal defendant to have reasonably effective attorney representation is absolute and is required at every essential step of the proceedings. Although we understand the desirability of the imposed restriction on a witness or party who is on the witness stand, we find that to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimo ny, violates the defendant’s basic right to counsel.

Id. at 161 (emphasis added; citation and quotations omitted).

The state argues that the defendant waived the error by not objecting when the trial court prohibited him from speaking with his counsel during the recess. We disagree. In Thompson v. State, 507 So.2d 1074 (Fla.1987), during a state-requested recess, defense counsel requested the opportunity to consult with the defendant before the state cross-examined the defendant. Id. at 1074. The trial court denied the request because the defendant was “still on the stand.” Id. at 1074-75. The supreme court remanded the case for a new trial. The court’s opinion does not indicate that defense counsel took any further action to preserve the error other than requesting the opportunity to consult with the defendant. The same situation exists here.

The state also argues that this error was harmless. We disagree. The reason for the state’s request for the recess was to determine whether it should ask for a mistrial due to a statement which the defendant made during his testimony. Prohibiting the defendant from speaking with his counsel during the recess deprived the defendant of counsel’s advice as to whether to continue or abandon that line of testimony. Cf. Thompson, 507 So.2d at 1075 (trial court’s error in denying the defendant’s requested attorney-client consultation during a recess was not harmless where the state was granted the recess for the sole purpose of researching ways to impeach the defendant regarding a subsequent arrest which defense counsel apparently advised him would be inadmissible).

In sum, based on the two errors discussed above, we reverse the defendant’s conviction and sentence and remand for a new trial.

Reversed and remanded for a new trial.

MAY and LEVINE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Siobhan G. TOBIN, Appellant, v. John Michael TOBIN, Appellee.
    No. 4D12-2613.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Siobhan G. Tobin, Pro Se.
    Jeffrey Hap, Jupiter, for appellee.
    Douglas F. Gansler, Attorney General of Maryland, and Stephen M. Ruckman, Assistant Attorney General, Baltimore, Maryland, Dan Friedman, Assistant Attorney General, Annapolis Maryland, and Richard W. Seymour, Okeechobee, for Amicus Curiae-Office of the Secretary of State, State of Maryland.
   PER CURIAM.

Siobhan Tobin, the wife, appeals a final judgment of dissolution of marriage entered after the trial court struck her pleadings for refusing to comply with certain discovery orders and failing to attend a court-ordered video deposition. We reverse, because the trial court erred by striking the wife’s pleadings and entering a final judgment without affording the wife an opportunity to be heard and offer mitigating or extenuating evidence.

John Tobin, the husband, was arrested and charged with aggravated assault for allegedly threatening his wife with a wine bottle. The wife obtained a Temporary Injunction for Protection Against Domestic Violence and later an Agreed Permanent Injunction Against Domestic Violence. Shortly thereafter, the wife left Florida and relocated to another state. The husband filed a petition for dissolution of marriage. After filing his petition, he served the wife with the standard family law interrogatories. She failed to timely comply with the request, and the trial court compelled her to respond to the interrogatories. The wife requested a protective order allowing her to omit her current home and work address from the interrogatories. As grounds, she asserted that she feared further abuse from her husband if she disclosed this information. As to the other requested information, she indicated her willingness to comply.

The trial court denied the wife’s motion, but immediately thereafter, counsel for the wife ore tenus moved to have the husband’s counsel barred from providing the husband with the wife’s current home or work address. Counsel for the husband agreed not to provide his client with the wife’s current home address but argued that his client needed access to his wife’s current work address. The trial court entered an agreed order as to the wife’s current home address but denied the ore terms request to have her work address omitted.

When the wife failed to respond to the husband’s standard interrogatories, the trial court held another hearing and warned the wife that her pleadings would be stricken and a default entered against her if she failed to comply with the discovery request. The trial court also ordered the wife to attend a video deposition scheduled to take place in Washington D.C. Counsel for the husband would attend the deposition telephonieally from his office in West Palm Beach. The husband would not be attending the deposition.

Minutes after the trial court’s deadline for complying with its discovery orders, counsel for the wife provided the husband with a partial response to his interrogatories. She still refused to provide her current home or work address. The wife also failed to attend the deposition after learning that her husband could be aware of the location where she would be appearing.

The trial court held a hearing on the husband’s Motion to Strike Wife’s Pleadings Based on Wife’s Refusal to Comply with Order on Husband’s Motion for Contempt, and Wife’s Refusal to Attend Court Ordered Deposition. Counsel for the wife asked the trial court not to strike the wife’s pleadings without first conducting an evidentiary hearing. She argued that her client “for lack of a better way to put it, [suffers from] extreme paranoia she claims as a result of the domestic violence she suffered.” The trial court denied her request for a hearing and granted the husband’s motion to strike the wife’s pleadings, stating: “The Wife acted and continues to act in a deliberate, willful, and contumacious manner, whereby she continues to act in defiance and disobedience of numerous orders issued by this court.” The court struck all of the wife’s pleadings, including her Counter-petition for Dissolution of Marriage, and ordered the wife to pay the husband’s attorney’s fees and costs as a sanction. The court then conducted a trial and entered a judgment of dissolution of marriage.

The wife argues that the trial court erred by striking her pleadings without a hearing to determine if her conduct warranted such an extreme sanction. We agree. Sanctions imposed pursuant to Florida Rule of Civil Procedure 1.380 are reviewed for an abuse of discretion, and a trial court may exercise its discretion by striking a party’s pleadings “where evidence shows deliberate and contumacious disregard of the court’s discovery orders.” Belle Glade Chevrolet-Cadillac Buick Pontiac Oldsmobile, Inc. v. Figgie, 54 So.3d 991, 996 (Fla. 4th DCA 2010) (citations omitted). However, the striking of pleadings is the severest of penalties and should only be exercised under “extreme circumstances.” America’s Yate de Costa Rica v. Armco Mfg., Inc., 82 So.3d 882, 885-86 (Fla. 4th DCA 2011) (quoting Cook v. Custom Marine Distrib., Inc., 29 So.3d 462, 462 (Fla. 4th DCA 2010)). If the trial court can impose a less severe sanction as a viable alternative, then it should use the alternative. Id.

In any case, the trial court should have granted the request by the wife’s counsel to hold an evidentiary hearing before striking the wife’s pleadings. See, e.g., Kue-chenberg v. Creative Interiors, Inc., 424 So.2d 145, 146 (Fla. 4th DCA 1982) (“The trial court erred by not affording appellants an opportunity to explain their failure to make discovery even after being ordered to do so. An evidentiary hearing held after remand will correct this error.”); accord Wildwood Props., Inc. v. Archer of Vero Beach, Inc., 621 So.2d 691, 692 (Fla. 4th DCA 1993) (“A party to be sanctioned for discovery violations must first be given notice and an opportunity to be heard and offer mitigating or extenuating evidence as to why discovery did not take place.”).

Accordingly, we reverse the order striking the wife’s pleadings and remand for an evidentiary hearing to determine whether the wife’s failure to obey the discovery orders rose to the level of disobedience which would justify the severe sanction of striking pleadings or whether some lesser sanction would suffice. Because we are reversing the order striking the pleadings, we must also reverse the final judgment of dissolution of marriage. See Wildwood, 621 So.2d at 692. This moots the remaining issues on appeal.

Reversed and Remanded.

TAYLOR, CIKLIN, JJ., and ROBINSON, MICHAEL A., Associate Judge, concur.

      . We note that Florida Supreme Court Approved Family Law Form 12.980(h) allows a party who has been the victim of domestic violence to file a request for a confidential address. See In re Amendments to Florida Rules of Judicial Admin., Florida Rules of Civil Procedure, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Rules of Traffic Court, Florida Small Claims Rules, Florida Rules of Juvenile Procedure, Florida Rules of Appellate Procedure, Florida Family Law Rules of Procedure — E-Mail Service Rule, 102 So.3d 505, 570 (Fla.2012). A battered spouse may omit certain details from his or her financial affidavit and request that these details be kept confidential by the court. Id.


author: FORST, J.

text:
    Jamil J. AGEMY, Susan Agemy, Jose Aguilar, Individuals, and 4 BSI Inc., Brighter Solutions, Inc., a Florida corporation, Appellants, v. HEALTH BUSINESS SOLUTIONS, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D13-18.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Rehearing Denied Aug. 16, 2013.

      Edward W. Staab, III, of Law Office of Edward W. Staab, III, P.A., Fort Lauder-dale, for appellants.
    Beverly A. Pohl, P.A., Matthew S. Nelles, and Tara Ravi of Broad and Cas-sel, Fort Lauderdale, for appellee.
   FORST, J.

The Appellants challenge an order canceling the hearing on their motion to vacate, dissolve, or modify two temporary restraining orders. It is apparent from the order that the trial court agreed with the Appellee that no hearing was required because the motion was legally insufficient. The trial court made statements at earlier hearings with respect to the Appellee’s motions for temporary injunction that could have been fairly interpreted to mean that the Appellants’ stipulation to temporary injunctions would not waive their right to an evidentiary hearing if they later decided to move to dissolve. Accordingly, we find that the trial court erred in effectively denying the motion to dissolve. We thus reverse and remand for the trial court to vacate both temporary injunctions and to hold an evidentiary hearing -with respect to the Appellee’s motion for temporary injunction and/or its motion for a permanent injunction.

The Appellants make five arguments on appeal, but only one requires discussion. First, some factual background is necessary. The Appellee, a business which assists persons whose health care claims have been denied by insurance companies, sought injunctive relief against the Appellants via a verified complaint. One of the Appellants, Jamil Agemy, had worked for the Appellee. According to the complaint, the business had developed specialized software and a knowledge base which qualified as trade secrets. The Appellee claimed that after Agemy was fired, he “wiped” his company-issued laptop clean of information including the trade secrets, and hacked into a database to obtain more protected information. The Appellee also named as co-conspirators Agemy’s wife and her company, Brighter Solutions, Inc.; Agemy’s now dissolved business, 4BSI, Inc.; and Jose Aguilar, a consultant to 4BSI, Inc.

Accompanying the complaint was a verified motion for temporary restraining order, which reiterates the allegations of the complaint and requests a temporary order enjoining the Appellants from accessing, using, selling, and revealing the trade secrets, contacting the Appellee’s customers, and accessing its computer systems. A hearing was held on September 21, 2012, at which Agemy appeared without a lawyer. He asked for a continuance to retain a lawyer, but the Appellee opposed that request and stated, “We’re just asking that the status quo be preserved until such time as this could be heard.” Agemy indicated he didn’t understand what that meant. Counsel for the Appellee suggested Agemy agree to a temporary restraining order, and the court stated, “[A]ll I’m asking if you would agree to that until you get a lawyer. And you may decide that you don’t want to challenge it. Maybe you think you should challenge it after you speak to a lawyer. I’ll give you a hearing as soon as possible....” Agemy again requested time to retain a lawyer, but the trial court began questioning Agemy as to whether he agreed to provisions of the proposed order. Agemy agreed to the provisions, but he also made statements that made it clear he disagreed with the merits of the request for an injunction. For example, he stated that “there is no knowledge base.”

Based on the agreement, a broadly worded temporary injunction was entered. The order identifies the software, knowledge base, and other items as trade secrets, and enjoins Agemy from “using, accessing, disclosing, publishing, transferring, selling, copying, uploading, revealing or communicating” them to others. The order also prohibits him from contacting the Appellee’s customers and accessing the Appellee’s computer systems, and it requires him to preserve data on his own computers. The order provides that Age-my “can request the court have a hearing to vacate this order at any time.”

Several days after this order was entered, the Appellee filed a second motion for temporary restraining order. This one was not verified. The Appellee alleged that after the temporary injunction was entered, Agemy contacted family members of the Appellee’s employees and threatened to report the Appellee to federal authorities for illegal activities, and that he used Aguilar to contact the Appellee’s customers. Agemy and Aguilar appeared at the ensuing September 28, 2012 hearing, and this time Agemy was represented by counsel. The trial court stated:

I want to be clear. It was an agreed order. Mr. Agemy asked for time to get a lawyer. I said of course. But after some discussion between the parties, the parties agreed to an order because Mr. Agemy was saying things like, look, I’m not doing any of this, I don’t care; sure I’ll sign it. I made it clear at that time that Mr. Agemy could ask for a hearing to dissolve this agreed order at any time. There has not been an evidentia-ry hearing.

Counsel for Agemy pointed out that the motion was not verified, and he stated that he had filed a motion for extension of time to file a motion to vacate the temporary injunction. He was recently retained and unfamiliar with the case. The court strongly encouraged the parties to come to an agreement. In an off-the-record discussion, they did so. Subsequently, the court entered an Agreed Order incorporating the provisions of the initial restraining order and further providing that Agemy and Aguilar “shall not communicate with [the Appellee’s] employees ... shall not communicate with family members of [the Appellee’s] employees about the lawsuit or [the Appellee] ... and shall not communicate with [the Appellee’s] clients and/or customers.”

Less than one month later, the Appellants filed their Motion to Vacate, Dissolve and/or Modify the Temporary Restraining Orders. They observed that the court had indicated both of the September orders could be dissolved and an evidentiary hearing held upon the Appellants filing a motion to dissolve. They argued that the Appellee did not establish the elements necessary to grant a temporary injunction.

Subsequent to the entrance of the second temporary injunction, a successor judge was assigned the case. The Appel-lee filed a motion to cancel hearing, accompanied by a letter to the judge claiming there was a “significant procedural deficiency with respect to Defendants’ Motion.” In the motion, the Appellee pointed out that the Appellants agreed to the first injunction, and it characterized the second hearing as an evidentiary hearing. The Appellee cited Spaulding v. Estate of Frey, 666 So.2d 935, 936-37 (Fla. 5th DCA 1995), in which the court affirmed the denial of a motion to dissolve a temporary injunction, and reasoned that “[i]t is now too late to raise arguments that should have been raised at the contested hearing ... or in a direct appeal....” The Appel-lee argued the Appellants were attempting to “gain a retrial of the issues without a timely motion for a new trial or appeal.” The successor judge entered an order granting the motion to cancel hearing, citing Spaulding.

The Appellants argue the successor judge erred in relying on Spaulding, as the case is not applicable to the circumstances here. The standard of review of the court’s legal conclusions is de novo, but to the extent the court exercised discretion in canceling the hearing, the standard of review is abuse of discretion. Burtoff v. Tauber, 85 So.3d 1182, 1183 (Fla. 4th DCA 2012).

Florida Rule of Civil Procedure 1.610 governs temporary injunctions. Once a temporary injunction is entered, the enjoined party “may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion shall be heard within 5 days after the movant applies for a hearing on the motion.” Fla. R. Civ. P. 1.610(d). However, “challenges to the sufficiency of an injunction are generally not allowed on a motion to dissolve” unless the injunction was entered ex parte. Palma Plaza Owners’ Ass’n v. Cummings & Lockwood, 706 So.2d 1376, 1377 (Fla. 4th DCA 1998). Where an injunction is entered after a contested hearing, a trial court has jurisdiction to dissolve or modify the injunction when circumstances have changed. Acmar Eng’g Corp. v. Farrington, 423 So.2d 1033, 1034 (Fla. 4th DCA 1982). Our courts have held that trial courts do not abuse their discretion in denying motions to modify where there is no change in circumstances and the enjoined party merely raises arguments it could have raised at the evidentiary hearing on the injunction. See Fong v. Courvoisier Courts Condo. Ass’n, 81 So.3d 562, 563 (Fla. 3d DCA 2012); Cohen v. Zidon, 994 So.2d 1163, 1164-65 (Fla. 3d DCA 2008); Spaulding, 666 So.2d at 937.

Where the enjoined party stipulates to the temporary injunction, the trial court is typically found not to have abused its discretion in denying a motion to dissolve. See R.J. Reynolds Tobacco Co. v. Engle, 750 So.2d 781, 781-82 (Fla. 3d DCA 2000) (affirming denial of motion to dissolve where the motion “was either invited or acquiesced to by defendants”); U.S. Mfg. & Galvanizing Corp. v. Renfrew, 592 So.2d 1216, 1217 (Fla. 3d DCA 1992) (declining to entertain argument that temporary injunction order was overbroad where enjoined party agreed to the entry and terms of the injunction). However, our courts recognize that trial courts have inherent jurisdiction to retract their non-final orders, including temporary injunctions, even where the only grounds raised could have been raised at the injunction hearing. See Precision Tune Auto Care, Inc. v. Radcliff, 731 So.2d 744, 745 (Fla. 4th DCA 1999); Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So.2d 842, 843 (Fla. 3d DCA 2007).

This case is factually distinguishable from the case relied on by the trial court, Spaulding. Although there was notice, the predecessor judge did not hold an evi-dentiary hearing, nor did she reach the merits of the Appellee’s requests for injunctions. Confronted with a pro se defendant who requested a continuance to obtain an attorney and disputed the merits of the motion, and a plaintiff who opposed any continuance, the court made statements that reasonably could have been taken as a eompromise-there would be a temporary restraining order until Agemy hired an attorney, at which time he could move to dissolve the temporary injunction and the Appellee would be required to establish entitlement to a temporary injunction. The predecessor judge made similar statements at the hearing on the second motion for injunction. It is not apparent the successor judge was aware of all this when she ruled on the motion to dissolve. Further, the motion to cancel hearing and accompanying letter may have led the successor judge to believe there had been an evidentiary hearing on the second motion for injunction.

Based on the unique circumstances of this case, we find the successor judge erred in effectively denying the motion to dissolve. We reverse and remand for the trial court to vacate both temporary injunctions and to hold an evidentiary hearing with respect to the Appellee’s two motions for temporary injunction. The Appellants request that the predecessor judge be assigned to the case on remand, but even if we were in a position to grant such a request, we do not believe it is necessary to do so.

Reversed and remanded for further proceedings.

GROSS and CIKLIN, JJ, concur.

      . The other issues are either restatements of the main issue, lack merit, or will be rendered moot by our reversal of the order on appeal.


author: GROSS, J.

text:
    NAFH NATIONAL BANK, Appellant, v. Jose Fernando ARISTIZABAL, Liliana U. Aristizabal, Bio Plants And Tree Company, a Florida corporation, and High Q Seeds, Corporation, a Florida corporation, Appellees.
    No. 4D13-83.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Vincent E. Damian, Jr. of Salomon, Kan-ner, Damian & Rodriguez, P.A., Miami, for appellant.
    Vanessa Jaleh Bravo of Neustein Law Group, P.A., Miami Beach, for appellees.
   GROSS, J.

We reverse an order setting aside a final foreclosure judgment pursuant to Florida Rule of Civil Procedure 1.540(b) because the motion was filed beyond the one-year time limit specified in the rule.

On February 25, 2010, an agreed final judgment of foreclosure was entered pursuant to a settlement agreement between the original lender and the appellees. The settlement agreement called for the appel-lees to comply with a payment schedule. When the appellees defaulted, the bank moved to schedule a foreclosure sale.

In December, 2011, the appellees moved to vacate the February 2010 final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(2) and (3). The motion indicated that the bank committed fraud because the copy of the promissory note attached to the complaint for foreclosure differed from the original note.

The trial court denied the rule 1.540(b) motion and the foreclosure sale remained on schedule. One day before the sale, one of the appellees filed for bankruptcy. After the bankruptcy was dismissed, the foreclosure sale was reset. One day before the rescheduled sale, another appellee filed for bankruptcy. After that bankruptcy was dismissed, the trial court reset the sale, which occurred on August 21, 2012.

On August 31, 2012, the appellees filed an objection to the sale and a rule 1.540(b) motion to vacate the February 2010 final judgment of foreclosure. The motion again claimed that a fraudulent promissory note was attached to the complaint and added the ground that the settlement agreement was unconscionable. The trial court granted the motion.

The trial court was without jurisdiction to grant the August 31, 2012 rule 1.540(b) motion because it was untimely. The motion was untimely because the ap-pellees filed it “more than 1 year” after the February 2010 final judgment. Fla. R. Civ. P. 1.540(b).

“‘After rendition of a final judgment, the trial court loses jurisdiction over the case except to enforce the judgment and except as provided by rule 1.540.’ ” Harbor Cmtys., LLC v. Jerue, 81 So.3d 568, 571 (Fla. 4th DCA 2012) (quoting Bank One, N.A. v. Batronie, 884 So.2d 346, 348 (Fla. 2d DCA 2004)). “[T]he one exception to the rule of absolute finality is rule 1.540, ‘which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.’” Bane v. Bane, 775 So.2d 938, 941 (Fla.2000) (quoting Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986)).

“A motion seeking relief for the reason specified by rule 1.540(b)(3) must be filed not more than one year after rendition of the final judgment.” Bank One, N.A., 884 So.2d at 348 (citations omitted). “Failure to raise this ground within that time deprive[s] the court below of jurisdiction to address this claim[.]” Epicor Software Corp. v. Coopers & Clarke, Inc., 928 So.2d 1249, 1251 (Fla. 3d DCA 2006).

The appellees’ motion did not fall under the exception to the one-year time limit for a rule 1.540(b) motion for “fraud upon the court” since it alleged only intrinsic fraud rather than extrinsic fraud.

“[O]nly extrinsic fraud may constitute fraud on the court.” DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984), superseded, by rule on other grounds as stated in Lefler v. Lefler, 776 So.2d 319, 322 n. 1 (Fla. 4th DCA 2001). In Parker v. Parker, 950 So.2d 388 (Fla.2007), the Florida Supreme Court relied upon DeClaire to distinguish extrinsic fraud from intrinsic fraud, explaining that “extrinsic fraud occurs where a defendant has somehow been prevented from participating in a cause”:

Extrinsic fraud involves conduct which is collateral to the issues tried in a case.... [T]his Court has defined extrinsic fraud as the
prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on.

Id. at 391 (quoting DeClaire, 453 So.2d at 377).

On the other hand, intrinsic fraud

applies to fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried. This Court ...

has expressly held that false testimony given in a proceeding is intrinsic fraud. We have stated that

[i]f a judgment was obtained upon ... a fraudulent instrument and the parties were heard, the evidence submitted to and received consideration by the court, then it may be said that the matter has been actually tried, or was so in issue that it might have been tried and the parties are estopped to set up an intrinsic or direct fraud to vitiate the judgment, because the judgment is the highest evidence and cannot be contradicted by the parties to it.

Id. (quoting DeClaire, 453 So.2d at 377) (emphasis added and omitted). The policy of law that favors the termination of litigation supports a narrow application of the “fraud upon the court” exception to the one-year limit on rule 1.540(b) motions. See Alexander v. First Nat’l Bank of Titusville, 275 So.2d 272, 274 (Fla. 4th DCA 1973).

Here, the appellees’ complaints about the note and the settlement agreement were not claims of extrinsic fraud. Their August 2012 motion was therefore subject to the one year time limit, rendering the circuit court without jurisdiction to grant the motion. We reverse the order granting the rule 1.540 motion and reinstate the final judgment to issue certificate of title to the appellant.

Reversed and remanded.

MAY, J„ and JOHNSON, LAURA, Associate Judge, concur.

      . For example, the appellees pointed out that (1) the original note did not have a loan number, while the copy attached to the complaint did, and (2) one of the appellees initialed a “Jury Waiver” provision in the original note and the initials did not appear on the copy.

      . A separate reason to reverse is that the motion failed to “specify the fraud with particularity and explain why the fraud, if it exists, would entitle the movant to have the judgment set aside.” Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010) (citing Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994)). General allegations of fraud will not support a motion to vacate a final judgment. Vilvar v. Deutsche Bank Trust Co. Americas, 83 So.3d 853, 855 (Fla. 4th DCA 2011). "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit.” Fla. R. Civ. P. 1.120(b).


text:
    K.D., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D12-2252.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Robin F. Hazel of Hazel Law, P.A., Pembroke Pines, for appellant.
    Temi Zeitenberg, Assistant General Counsel, Fort Lauderdale, and Gregory D. Venz, Assistant General Counsel, Tallahassee, for appellee Department of Children and Families.
   PER CURIAM.

Affirmed. See J.D. v. Dep’t of Children & Families, 114 So.3d 1127 (Fla. 1st DCA 2013).

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


author: TAYLOR, J.

text:
    Carlos VELLOSO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4366.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant was charged by information with theft of state funds in the amount of $20,000 or more, but less than $100,000, by failing to remit taxes collected pursuant to Chapter 212, Florida Statutes. He was found guilty by a jury of theft of state funds in the amount of $800 or more, but less than $20,000. He appeals his conviction, arguing that the trial judge erred by: (1) applying a sufficiency of the evidence standard, rather than the weight of the evidence standard, when denying his motion for a new trial; (2) denying his motion for mistrial when a witness made an objectionable comment; and (3) denying his request for a special jury instruction. We find merit in appellant’s first argument and reverse only on that issue. Without further comment, we affirm on the other issues raised in this appeal.

“Ordinarily, a trial court’s ruling on a rule 8.600(a)(2) motion for new trial is subject to review under an abuse of discretion standard. But where a trial court’s ruling is based on the application of an incorrect legal standard, the ruling is subject to de novo review.” Ferebee v. State, 967 So.2d 1071, 1073 (Fla. 2d DCA 2007).

Rule 3.600(a)(2) provides that a trial court shall grant a new trial if the verdict is “contrary to ... the weight of the evidence.” There is a distinction between the “sufficiency of the evidence” standard, which is used in determining whether to grant a judgment of acquittal, and the “weight of the evidence” standard, which is used in evaluating a motion for new trial. Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002). The “sufficiency of the evidence” standard examines whether the evidence presented is legally adequate to permit a conviction, while the “weight of the evidence” standard evaluates whether a greater amount of credible evidence supports an acquittal. Ferebee, 967 So.2d at 1073.

In deciding a motion for new trial pursuant to Rule 3.600(b), the trial court acts as a “safety valve” by “granting a new trial where the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict.” Geibel, 817 So.2d at 1044. “Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror.” Tibbs v. State, 397 So.2d 1120, 1123 n. 9 (Fla.1981).

A trial court is not compelled to use “magic words” when ruling on a motion for new trial, but the ruling should demonstrate that the court applied the proper standard to the motion. Geibel, 817 So.2d at 1045. Reversible error occurs when a trial court applies a sufficiency of the evidence standard to a motion for new trial under rule 3.600(a)(2). Ferebee, 967 So.2d at 1073.

Here, the record shows that the trial court incorrectly applied a sufficiency of the evidence standard in denying the motion for new trial. Defense counsel moved for a new trial and stated that the verdict was contrary to the weight of the evidence. He specifically requested that the court weigh the credibility of the defense witnesses against that of the prosecution’s witnesses. However, the trial court explicitly refused to weigh the evidence, stating that it was “the jury’s role to weigh the credibility of witnesses. I make the determination whether the State has met the minimum threshold for it to go to the jury. And that’s a minimum thi'esh-old. That’s what the standard is, whether reasonable jurors could differ.”

The trial court thus applied the sufficiency of the evidence standard, when it should have determined whether the verdict was contrary to the weight of the evidence. Even if it were simply unclear as to whether the trial court applied the correct standard, reversal for a new hearing on the motion for new trial would be required. See Lee v. State, 89 So.3d 290, 291 (Fla. 5th DCA 2012) (“In the present case it is unclear whether or not the trial judge applied the correct standard in denying the motion for new trial. Indeed, the State agrees that because the record on the issue is ambiguous, a new hearing on Mr. Lee’s motion is appropriate.”).

We therefore reverse and remand this cause for the trial court to reconsider appellant’s motion for new trial, and determine whether the verdict was contrary to the weight of the evidence.

Affirmed in part, Reversed in part and Remanded.

WARNER and STEVENSON, JJ„ concur.

      . Although the trial court denied the motion for mistrial, the court sustained the defense objection and gave a strongly worded curative instruction.


text:
    In re David Miles MARK.
    No. 2013-B-1097.
    Supreme Court of Louisiana.
    May 22, 2013.
   In re Disciplinary Counsel; — Other; Applying for Petition for Interim Suspension Pursuant to Supreme Court Rule XIX Section 19.

ORDER

h Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the representation by the Chief Disciplinary Counsel that respondent has agreed to the entry of an order of interim suspension,

IT IS ORDERED that David Miles Mark, Louisiana Bar Roll number 28385, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

FOR THE COURT:

/s/ Greg G. Guidry Justice, Supreme Court of Louisiana


text:
    In re Joseph B. HARVIN.
    No. 2013-B-0685.
    Supreme Court of Louisiana.
    May 24, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

1 iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joseph B. Harvin, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

By way of background, Sal Diecidue is the owner of Progressive Iron Works, Inc. (hereinafter referred to as “PIW”). Michael Perkins is the co-owner of Hitt Development, LLC (hereinafter referred to as “Hitt”). Hitt was constructing the Amber Trace condominium development and subcontracted PIW to do the iron work for the development.

Mr. Diecidue received a $5,000 advance and was to be paid an additional $17,700 upon completion of the iron work. On May 15, 2007, Mr. Perkins, on Hitt’s behalf, issued a check to PIW in the amount of $17,700. However, the check was returned unpaid due to insufficient funds in Hitt’s bank account, and Mr. Diecidue did not receive his final payment.

Mr. Diecidue then hired respondent to collect on the NSF check. To that end, on July 2, 2007, respondent filed a petition in Slidell City Court in an action entitled Sal Diecidue, individually and d/b/a Progres sive Iron Works, Inc. v. Michael L. Perkins, individually and, d/b/a Hitt Development, LLC, under docket number 2007C2692. On September 14, 2007, respondent filed a default judgment 12against Mr. Perkins and Hitt, which judgment was subsequently signed by the judge. The default judgment awarded Mr. Diecidue and PIW $34,500, plus attorney’s fees, costs, and legal interest.

Following a judgment debtor rule, Mr. Perkins hired attorney Randall Foreman to represent him in the matter. Mr. Foreman informed respondent that the default judgment was improper because Mr. Perkins was not personally served with the petition. The judgment was also improper because the amount awarded exceeded the jurisdictional limits of the Slidell City Court. When respondent disagreed with Mr. Foreman’s assessment, Mr. Foreman filed a petition to annul the default judgment in an action entitled Michael L. Perkins, individually and d/b/a Hitt Development, LLC v. Sal Diecidue, individually and d/b/a Progressive Iron Works, Inc., under docket number 2008-12313 of the 22nd Judicial District Court for the Parish of St. Tammany.

In response to the petition to annul, on June 16, 2008, respondent filed a consent judgment granting the petition to annul, which the judge signed the next day. However, three days earlier, on June 13, 2008, respondent had filed a notice of lis pendens against all property owned by Mr. Perkins and/or Hitt, even though the NSF check only pertained to the Amber Trace condominium development property. Mr. Foreman requested that respondent remove the improperly filed notice of lis pendens, but respondent refused to do so unless Mr. Perkins agreed to pay the original amount of the default judgment to Mr. Diecidue.

In October 2008, Mr. Perkins was attempting to sell a piece of real property that was unrelated to the NSF check issue. The closing attorney for the sale, Kirk Frosch, discussed with respondent both the notice of lis pendens and the recorded default judgment, which still had not been canceled in the mortgage records despite |3its annulment. Respondent informed Mr. Frosch that he could not remove the notice of lis pendens unless Mr. Diecidue was paid $47,500 from the sale of the property, even though the property had nothing to do with the NSF check that was issued for work done on the Amber Trace condominium development. Respondent did, however, cancel the recordation of the default judgment in the mortgage records by filing an amended consent judgment, which was signed by the judge on October 29, 2008. Nevertheless, the notice of lis pendens ultimately prevented Mr. Perkins from selling the property.

Eventually, respondent admitted his mistakes and waived all attorney’s fees, costs, and expenses relative to his handling of the notice of lis pendens and the underlying Slidell City Court action on the NSF check. The recordation of the notice of lis pendens was finally canceled on February 17, 2009 as a result of a lawsuit filed by Mr. Perkins and Hitt against respondent, Mr. Diecidue, and the St. Tammany Parish Clerk of Court for the improper filing and recordation of the notice of lis pendens. Respondent also made restitution to Mr. Perkins in the amount of $27,500. Additionally, respondent’s legal malpractice insurer paid Mr. Diecidue $10,000 for the improper filing of the notice of lis pendens.

DISCIPLINARY PROCEEDINGS

In May 2011, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 3.1 (meritorious claims and contentions), 3.3(a)(1) (candor toward the tribunal), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

^Respondent, through counsel, filed an answer to the formal charges, admitting that his errors resulted in violations of Rules 3.1 and 3.3(a)(1). Respondent denied that he violated Rule 8.4(c).

Hearing Committee Report

Following the filing of respondent’s answer to the formal charges, this matter proceeded to a hearing on the merits. After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above. The committee also made additional factual findings as follows:

Respondent improperly relied upon the Slidell City Court Marshal’s Office regarding whether or not Mr. Perkins had been personally served with the lawsuit. Respondent admitted that he did not personally review the court record before obtaining the default judgment and recognized it was improper of him to not have reviewed the court record.

Respondent also did not discuss with Mr. Foreman his intention to file the notice of lis pendens against many pieces of property to which the NSF check issue was not relevant. He admitted that filing the notice of lis pendens against every piece of property that Mr. Perkins and Hitt owned was improper, and he took responsibility for the improper filing. The ODC pointed out that respondent initially said that Mr. Diecidue directed him to file the notice of lis pendens. However, during his testimony, respondent claimed it was his idea to file the notice of lis pen-dens. Respondent further recognized that the only property against which the notice of lis pendens should have been filed was the property PIW had performed iron work on, that being the Amber Trace condominium development. Respondent acknowledged that PIW did not work on any of the other properties listed on the notice of lis pendens. Even after realizing the notice of lis pendens 15was improperly filed, respondent placed responsibility on Mr. Diecidue, who allegedly refused to allow him to cancel it.

Respondent did not deny that the filing of the notice of lis pendens caused Mr. Perkins harm. In fact, he made $27,500 in restitution to Mr. Perkins. However, he did not do so until after the conclusion of the trial relative to the lawsuit filed by Mr. Perkins and Hitt against respondent, Mr. Diecidue, and the St. Tammany Parish clerk of court for the improper filing of the notice of lis pendens.

Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Specifically, the committee found that respondent violated Rules 3.1 and 3.3(a)(1) by filing the notice of lis pendens against several pieces of property owned by Mr. Perkins and Hitt to which Mr. Diecidue and PIW had no financial interest or valid lien standing. The committee also found that respondent violated Rule 3.3(a)(1) by obtaining an invalid default judgment against Mr. Perkins and Hitt in excess of the jurisdictional limit specified for Slidell City Court. He continued to violate Rule 3.3(a)(1) when he failed to correct the problem of the improper default judgment, forcing Mr. Perkins and Hitt to file a petition to annul the judgment. The committee further found that respondent violated Rule 8.4(c) by continuously attempting to use the improperly filed notice of lis pendens as a means to obtain financial compensation for the NSF check. Furthermore, respondent’s filing of the notice of lis pendens without notifying Mr. Foreman of same was a clear intent to mislead Mr. Perkins and Hitt as to his intentions with respect to the consent judgment annulling the default judgment. Through his actions, respondent stated that, if he could not get his judgment through Slidell City Court, then he was going to make sure Mr. Diecidue had some other means of negotiation against Mr. Perkins and Hitt, which the committee described as “tantamount to ‘legal 1 ^bullying.’ ” As a result of the above rule violations, the committee found that respondent also violated Rule 8.4(a).

The committee explained that the effect of filing the notice of lis pendens started a landslide of events. Respondent had tunnel vision when it came to getting Mr. Diecidue’s money for the NSF check. Compliance with the Rules of Professional Conduct and the Code of Civil Procedure simply were not a consideration. At no time during his conversation with Mr. Frosch did respondent acknowledge that the notice of lis pendens should not apply to the property upon which Mr. Frosch was trying to complete a closing sale. Respondent simply continued to negotiate on the basis of false legal leverage. The fallout of respondent’s actions was considerable considering the extent to which the parties had to go and the amount of legal fees, bills, and financial harm.

The committee then determined that respondent knowingly violated duties owed to his client, third parties, the legal system, and the legal profession. His conduct caused harm to Mr. Diecidue, resulting in unnecessary litigation, and to Mr. Perkins, who was prevented from selling property and was forced to hire an attorney for unnecessary litigation. Additionally, respondent harmed the legal system and the legal profession. Given these circumstances, the committee determined that the applicable baseline sanction in this matter is suspension.

In aggravation, the committee found the following factors: 1) even after being advised of his mistake, respondent refused to properly cancel the improperly obtained default judgment and further failed to cancel the improperly filed notice of lis pen-dens; 2) respondent failed to acknowledge or take responsibility for his actions until long after harm had been done to Mr. Perkins and Hitt; and 3) respondent has a prior disciplinary record in the form of a 1988 private reprimand for failing to provide his client with a prompt accounting of settlement funds.

|7In mitigation, the committee found the following factors are present: full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, remorse, and respondent’s efforts at restitution.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for ninety days, with all but thirty days deferred. The committee further recommended that respondent attend the Louisiana State Bar Association’s Ethics School for two consecutive years.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous and are supported by the testimony and documentary evidence. The board further determined that the record supports the committee’s conclusions regarding rule violations.

The board then determined that respondent knowingly violated duties owed to his client, third parties, the legal system, and the legal profession. His conduct harmed his client by causing unnecessary litigation and harmed Mr. Perkins, who was unable to sell a piece of property because of the improperly filed notice of lis pendens. Additionally, Mr. Perkins was forced to incur additional legal expenses to handle unnecessary litigation caused by respondent’s actions. Guided by the ABA’s Standards for Imposing Lawyer Sanctions, the board stated that suspension is the baseline sanction for similar misconduct.

In aggravation, the board found a prior disciplinary record and substantial experience in the practice of law (admitted 1985). In mitigation, the board found |sfull and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, remorse, and remoteness of the prior disciplinary offense.

Noting that prior jurisprudence suggests a brief suspension is warranted in this matter, the board recommended that respondent be suspended from the practice of law for three months, with all but thirty days deferred, followed by one year of unsupervised probation and attendance at the Louisiana State Bar Association’s Ethics School.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record of this matter supports a finding that respondent obtained an improper default judgment and filed an improper notice of lis pendens. This misconduct amounts to a violation of the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining |9a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly violated duties owed to his client, the public, the legal system, and the legal profession. His conduct harmed Mr. Perkins and Mr. Diecidue. Suspension is the baseline sanetion for this type of misconduct. The record supports the aggravating and mitigating factors found by the disciplinary board. Additionally, we find the aggravating factor of vulnerability of the victim is present in that Mr. Perkins’ financial problems were exacerbated by respondent’s misconduct.

Turning to the issue of an appropriate sanction, we find guidance from the case of In re: Raspanti, 08-0954 (La.3/17/09), 8 So.3d 526. In Raspanti, we publicly reprimanded an attorney who sued a former client for defamation after the client filed a disciplinary complaint against him, explaining that such lawsuits were frivolous and prejudicial to the administration of justice.

Unlike Raspanti, the instant matter involves substantial harm to respondent’s victims. Additionally, respondent has pri- or discipline, while Mr. Raspanti did not. Under these circumstances, we find the board’s recommended sanction in this matter is reasonable. Accordingly, we will suspend respondent from the practice of law for three months, with all but thirty days deferred, followed by one year of unsupervised probation with the condition that he attends the Louisiana State Bar Association’s Ethics School.

1^DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Joseph B. Har-vin, Louisiana Bar Roll number 14988, be and he hereby is suspended from the practice of law for three months. It is further ordered that all but thirty days of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for one year. As a condition of probation, respondent is ordered to attend the Louisiana State Bar Association’s Ethics School. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

VICTORY, J., dissents and would impose greater discipline.

      . The record reflected that Mr. Perkins was served via domiciliary service.

      . The amount in controversy of actions filed in the Slidell City Court cannot exceed $35,000 pursuant to La.Code Civ. P. art. 4843(G).


text:
    STATE of Louisiana v. Carlos ROMIOUS.
    No. 2013-OK-1114.
    Supreme Court of Louisiana.
    May 31, 2013.
   PER CURIAM.

| iApplication denied. We have carefully considered the application pursuant to Code of Criminal Procedure article 672, which provides that on the “written application of a trial judge, the supreme court may recuse him for any reason that it considers sufficient.” We agree with the applicant that there is no basis to recuse Judge Ellen Shirer Kovach from hearing the motion to recuse Judge Steven En-right. Therefore, the application is denied.

WEIMER, J., dissents.


text:
    In re Jose A. COSTA-BLANCO.
    No. 2013-B-1019.
    Supreme Court of Louisiana.
    May 31, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled personal funds with client funds in his client trust account and allowed the account to become overdrawn. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Jose A. Costa-Bianco, Louisiana Bar Roll number 17238, be suspended from the practice of law for a period of six months, fully deferred, subject to a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Helene Melissa SUGAR.
    No. 2013-B-0874.
    Supreme Court of Louisiana.
    May 31, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| Respondent and the Office of Disciplinary Counsel (“ODC”) submitted a joint petition for consent discipline in which respondent admitted that she neglected legal matters, failed to communicate with clients, failed to refund unearned fees, failed to properly supervise a non-lawyer assistant, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and failed to cooperate with the ODC in its investigations. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Helene Melissa Sugar, Louisiana Bar Roll number 24718, be suspended from the practice of law for a period of thirty months, retroactive to June 2, 2010, the date of her interim suspension. It is further ordered that respondent shall make full restitution to all former clients.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    STATE of Louisiana v. Rogers LACAZE.
    No. 2012-KP-2131.
    Supreme Court of Louisiana.
    June 17, 2013.
   PER CURIAM.

| iWrit granted in part; otherwise denied.

The state seeks reversal of a trial court order granting relator access to the entirety of a witness’s grand jury transcript for the purposes of his application for post-conviction relief following in camera review. We have emphasized that “the indispensable secrecy of grand jury proceedings must not be broken except where there is a compelling necessity.” State v. Trosclair, 443 So.2d 1098, 1103 (La.1983); see also United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). The party seeking disclosure must demonstrate a particularized need that outweighs the need for continued secrecy: Trosclair, 443 So.2d at 1103. That is, “[h]e must show that, without the material, his case would be greatly prejudiced or that an injustice would be done.” State v. Higgins, 03-1980, p. 36 (La.4/1/05), 898 So.2d 1219, 1241 (citing Trosclair, 443 So.2d at 1103; State v. Ates, 418 So.2d 1326, 1328-29 (La.1982)).

“[A] trial court may act upon a specific request stated with particularity and review grand jury transcripts in camera to determine if information contained therein |2is favorable to the accused and material to guilt or punishment.” Higgins, 03-1980 at 35-36, 898 So.2d at 1241. “If disclosure is permitted, it must be closely confined to the limited portion of the material for which there is particularized need.” Trosclair, 443 So.2d at 1103. “In any event, disclosure is left to the sound discretion of the trial court whose ruling will not be reversed absent an abuse of that discretion.” Higgins, 03-1980 at 36, 898 So.2d at 1241.

In the present case, the trial court’s finding that the witness’s grand jury transcript contained favorable impeachment, contradiction, or inconsistent statements is not supported in the record now before this Court. Moreover, we do not find that the state placed the content of the witness’s grand jury testimony at issue at trial by referring to the fact that the witness testified at the grand jury. The questions referred to by relator were brief and designed to orient the witness and the jury to questions that would follow in cross-examination. They did not, as relator now argues, imply or suggest that the witness’s testimony on direct examination was inconsistent with his testimony before the grand jury. Insofar as a juror may have derived that impression, the witness contradicted any notion that he testified inconsistently before the grand and petit juries. In light of the foregoing, relator has not established that he would be “greatly prejudiced or that an injustice would be done” with respect to his application for post-conviction relief by the continued secrecy of the witness’s grand jury transcript. Accordingly, the ruling of the trial court granting disclosure of the entirety of the witness’s grand jury testimony is reversed.

However, because relator’s is a capital case, additional caution is warranted to ensure relator’s access to information relevant to his claims for post-conviction relief. Cf. State v. Castleberry, 99-3584 (La.2/11/00), 754 So.2d 923 (“Because the ‘qualitative difference between death and other penalties,’ justifies departure from our | ausual practice, relator is to be furnished the requested records”) (quoting Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 989 (1978) (citations omitted)). We therefore deem the trial court’s decision to subject the transcript in question to in camera review appropriate. The trial court is directed to reconsider relator’s request in light of his specific factual allegations and disclose only those portions of the transcript when disclosure is supported by compelling necessity.

VICTORY, J., would grant the -writ and reverse the order of the trial court granting defendant access to the grand jury transcript.

KNOLL, J., would grant the writ and reverse the order of the trial court granting defendant access to the grand jury transcript.


text:
    STATE of Louisiana v. Gilbert DISHOTELL.
    No. 2012-K-2656.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Dishotell, Gilbert; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, No. 07K5035D; to the Court of Appeal, Third Circuit, No. 12-223.

Denied.


text:
    STATE of Louisiana v. Sterling Germane ROBINSON.
    No. 2012-KO-2658.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Robinson, Sterling Germane; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caldwell, 37th Judicial District Court Div. O, No. 84,821; to the Court of Appeal, Second Circuit, No. 47,437-KA.

Denied.


text:
    STATE of Louisiana v. Jonathan PARKER.
    No. 2013-C-0967.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Parker, Jonathan; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, No. 01-NS-3890; to the Court of Appeal, Third Circuit, No. 12-1333.

Denied.


text:
    STATE ex rel. Errol VICTOR, Sr. and Tonya O. Victor v. STATE of Louisiana.
    No. 2013-OK-0918.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Victor Sr., Errol et al.; Victor, Tonya O.; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 2012-CR-249; to the Court of Appeal, Fifth Circuit, No. 2013-K-271.

Denied.


text:
    STATE ex rel. Diondre D. ROMERO v. STATE of Louisiana.
    No. 2012-KH-2747.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Romero, Diondre D.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. G, No. 51565; to the Court of Appeal, Third Circuit, No. KA-31.

Denied.


text:
    STATE ex rel. La’Keisha Shanae ADAMS v. STATE of Louisiana.
    No. 2013-KH-0030.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Adams, La’Keisha Shanae; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 06-CR5-94104; to the Court of Appeal, First Circuit, Nos. 2012 KW 1452, 2012 KW 1452.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Ronnie A. HERNANDEZ v. STATE of Louisiana.
    No. 2013-KH-0031.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Hernandez, Ronnie A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. 2003-162062; to the Court of Appeal, First Circuit, No. 2012 KW 1761.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Lonnie LAURENT v. STATE of Louisiana.
    No. 2013-KH-0033.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Laurent, Lonnie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 308671; to the Court of Appeal, First Circuit, No. 2012 KW 1794.

Denied. Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.