author: BURKE, Judge. WELCH, Judge,

text:
    Donald Eugene NIX v. STATE of Alabama.
    CR-12-0406.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.

      Kammie B. Lee and John D. Norris, Millbrook, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   BURKE, Judge.

Donald Eugene Nix appeals his guilty-plea conviction of the illegal possession of a controlled substance, See § 13A-12-212(a)(1), Ala.Code 1975. Nix was sentenced to 13 months’ imprisonment; that sentence was suspended and he was ordered to pay an assessment of $1,000 to the Drug Demand Assessment Fund, $100 to the Department of Forensics Science Fund, $50 to the Alabama Crime Victims Compensation Fund, and court costs. His driver’s license was suspended for six months.

The record indicates that Nix originally entered a plea of not guilty. He filed a motion to suppress the evidence collected during a search of the vehicle and of his person, as on his motion to suppress and it was denied. Nix pleaded guilty but reserved for appeal the issues concerning the legality of his detention and the search and the seizure of the evidence.

At the hearing on the motion to suppress, defense counsel, who had previously attempted to withdraw as Nix’s counsel and submitted that she had unsuccessfully attempted to communicate with Nix, affirmed that Nix was not present for the hearing. She stated that she had attempted to inform Nix through his father, with whom he was living, about the hearing. She stated that she did not want to inconvenience the court or the two witnesses, who were the arresting officers, and that she was willing to proceed. The court determined that the witnesses would testify at that time and that the hearing would be continued and that Nix would be informed of a future date at which he must be present.

Cpl. A.D. Ferguson of the Montgomery Police Department testified that on the date of the offense he and Officer M.E. Mashburn were on patrol when a vehicle traveling toward them from a side street swerved into the officers’ traffic lane. Cpl. Ferguson testified that the vehicle almost hit their police car, so they turned the police car around to conduct a traffic stop and engaged the lights and siren on the police car. When the passengers in the vehicle appeared to notice that the police car was pursuing them, they turned into a driveway. A traffic stop was conducted and the officers determined that neither of the two men in the vehicle, who were both Caucasian, lived at the house. Further, the vehicle was later determined not to be registered in either of the men’s names. During the stop, according to Cpl. Ferguson, neither the driver nor the passenger was able to produce identification, but both men gave the officers their names. Cpl. Ferguson instructed the driver, who was later confirmed to be William Dowe, to get out of the vehicle, and a patdown search was conducted for safety reasons. Marijuana was discovered on Dowe and he was handcuffed and detained. Officer Mash-burn then conducted a patdown search on the passenger, who was later confirmed to be Nix. A crystal-like substance was found on Nix that was subsequently determined to be methamphetamine.

On cross-examination, Cpl. Ferguson testified that they were patrolling in the area of the stop because they were assigned to the crime-reduction team that patrols in areas producing a high volume of complaints, especially for drug activity. He testified that they stopped the vehicle because it almost hit their police car. He testified that while conducting the patdown search, he felt what he believed to be a baggie containing narcotics in Dowe’s pocket. He stated that his belief was based on his experience and training. He asked Dowe what the object was and, after Dowe responded that he did not know, Cpl. Ferguson pulled the baggie out of his pocket. He stated that, based on his experience, he believed that the baggie contained marijuana, and he placed Dowe in handcuffs.

Officer M.E. Mashburn, of the Montgomery Police Department, also testified at the hearing. He stated that he was riding with Cpl. Ferguson at the time of the offense and was able to see the men in the vehicle before the stop. Officer Mash-burn testified that “both white males inside the vehicle were very nervous, seemed to be shooken [sic] up by our presence when they saw us.” (R. 28.) He stated that the vehicle almost ran a stop sign before nearly colliding with the police car in a T-bone fashion. The vehicle pulled into a driveway, and the owner of the home later confirmed that he did not know the men in the vehicle. The driver was unable to produce any identification, and neither man could produce vehicle ownership; both men indicated that they did not own the car. Officer Mashburn stated that, as Cpl. Ferguson removed the driver from the vehicle, he continued to speak with the passenger and “noticed there was shaking, sweating, [he] wouldn’t look me in the eye.” (R. 29.) While Nix was still seated in the passenger side of the vehicle, Officer Mashburn observed in his pocket “a knot and a small clear part of a plastic bagg[ie]” in his right front change pocket. (R. 29.) Based on his experience and training, he believed that the baggie contained narcotics. Cpl. Ferguson then found marijuana on the driver, so Officer Mashburn had the passenger get out of the vehicle because, he said, they did not know who owned the vehicle and the driver did not have a license. He conducted a patdown search of the passenger and removed the plastic baggie which he believed contained crystal methamphetamine. He then asked the passenger if there was any more in the car, and the passenger refused to answer and would not look Officer Mashburn in the eye. Officer Mashburn testified that he then continued the pat-down search and found a “big bulge in his left back pocket.” (R. 32.) He removed a zippered bag that contained two large clear plastic bags containing what appeared to be crystal methamphetamine. Officer Mashburn stated that he handcuffed the passenger, Nix, and transported him to narcotics headquarters, where he discovered Nix’s name.

Following this testimony, defense counsel argued that the narcotics evidence should be suppressed because, she argued, the search of the driver was performed without probable cause and was therefore illegal, and this “carrie[d] over” to the subsequent search of Nix. Because Nix was searched after marijuana was illegally seized from Dowe, defense counsel argued that the methamphetamine should be suppressed as the fruit of the poisonous tree.

On a subsequent date, Nix appeared for sentencing and entered a guilty plea following a colloquy, reserving the right to appeal “on the suppression.” (R. 40.) He was sentenced approximately two weeks later.

On appeal, Nix argues that his motion to suppress should have been granted because, he says, the evidence was discovered as a result of an illegal search and seizure. He contends that, because Officer Mashburn testified that he could see the bag only from the knot upward in Nix’s pocket and could not see the methamphetamine in the baggie, it was not in plain view and it was not discovered pursuant to the plain-feel exception.

Both the plain-sight and the plain-feel exceptions to a warrantless search have equal application to the propriety of the discovery of narcotics, so long as the patdown search was proper under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The United States Supreme Court has held also that a police officer may intrude beyond the outer clothing of a suspect if, during the patdown, the officer ‘feels an object whose contour or mass’ gives him ‘probable cause to believe that the [object] is contraband.’ Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).” Ex parte James, 797 So.2d 413, 418 n. 1 (Ala.2000). “While this pat-down is designed to secure the officers’ safety and discover any weapons or other tools that could harm the arresting officer, if, during the pat-down, an officer plainly views an item of contraband or discovers an item of contraband through ‘plain feel,’ the officer may investigate and seize that item (so long as it turns out actually to be contraband). [United States v.] Campbell, 549 F.3d [364,] 373 [ (6th Cir.2008) ]; United States v. Garcia, 496 F.3d 495, 505 (6th Cir. 2007).” Webster v. United States, (No. 1:10-0002) (M.D.Tenn. April 8, 2010) (not reported in F.Supp.2d) (“[Officer] Ward had testified that the tip of a baggie, which was of the type consistently used to transport small quantities of drugs, was plainly visible during the pat-down, as it was sticking out of Webster’s front pocket. Also, Ward had testified that, when patting down this area from which the baggie was sticking out, he felt a ‘large lump,’ also consistent with the presence of drugs in the pocket.... Based on this testimony, Officer Ward was justified in removing and seizing the baggie under the ‘plain feel’ and ‘plain view5 doctrines.”) See also State v. Olden, (No. 23137, Jan. 22, 2010) (Ohio Ct.App.2010) (not published in Ohio Reports or North Eastern Reporter) (Officer felt a lump and a baggie in Olden’s pocket and saw a portion of the baggie sticking out of Olden’s pocket, which he believed, based on his experience, to contain narcotics; thus, the incriminating nature of the evidence was immediately apparent and the seizure was justified). United States v. Walker, 181 F.3d 774, 778 (6th Cir.1999) (police may seize nonthreatening contraband detected by touch during a protective patdown search if the search stays within the bounds marked by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Moreover, under the plain-view doctrine, if the police are lawfully in a position to see an object and the incriminating nature of the evidence is immediately apparent, the evidence may be seized without a warrant. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).

“The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no ‘search’ within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their vantage point. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983); Texas v. Brown, 460 U.S. 730, at 740, 103 S.Ct. [1535] at 1542 [(1983) ]. The warrant-less seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. See [Arizona v.] Hicks, [480 U.S. 321,] at 326-327, 107 S.Ct., at 1153 [(1987)]; Coolidge v. New Hampshire, 403 U.S. 443, 467-468, 469-470, 91 S.Ct. 2022, 2028-2029, 2040, 29 L.Ed.2d 564 (1971) (opinion of Stewart, J.).”

Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). “Furthermore, the requirement for a war-rantless search that the officer immediately recognize the object as evidence of wrongdoing requires that the officer’s judgment be grounded in probable cause. However, the officer need not be convinced beyond a reasonable doubt as to the incriminating nature of the evidence discovered, and it is sufficient if the evidence raises the probability that criminal activity is afoot.” Wedgeworth v. State, 610 So.2d 1244, 1248 (Ala.Crim.App.1992).

In the present case, the vehicle in which Nix was traveling ran a stop sign and nearly hit a police car. Officer Mash-burn testified that the men were visibly nervous when they became aware of the officers. They pulled their vehicle into an unknown person’s driveway. They had no identification or driver’s licenses and the vehicle did not belong to them. The officers patted the men down for safety. Before Nix was patted down, Officer Mash-burn saw the knotted baggie protruding from the coin pocket of Nix’s pants. Moreover, Officer Mashburn testified that, based on his experience, he immediately believed that the baggie contained narcotics. This factually distinguishes the instant case from Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), Adams v. State, 815 So.2d 574 (Ala.Crim.App.1999), and Tolbert v. State, 111 So.3d 747 (Ala.Crim.App.2011). In those cases, the officer reached into the defendant’s pocket without first observing anything protruding from it.

Second, it was reasonable for Officer Mashburn to rely upon his experience to suspect that the plastic baggie in Nix’s coin pocket contained illegal drugs. His suspicions were further confirmed by Nix’s nervous demeanor. Thus, unlike the facts of Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the seizure was supported by more than the sight of the protruding plastic baggie. Here, there were reasonable and particularized grounds on which to conclude that Nix was guilty of possessing narcotics in the plastic baggie. See, e.g., People v. Harris, 62 Cal.2d 681, 683, 43 Cal.Rptr. 833, 401 P.2d 225 (1965) (probable cause existed to search defendant where arresting officer saw “exposed portion of the plastic bag in her pocket; he knew from his experience as a narcotics investigator ... that narcotics are commonly packaged in plastic bags; and he knew that [Harris’s husband] had just been arrested”).

Because the baggie was in plain view and was immediately identified by Officer Mashburn as containing contraband, and based on the totality of the circumstances, Officer Mashburn had probable cause to seize the methamphetamine during the lawful patdown.

AFFIRMED.

WINDOM, P.J., and JOINER, J., concur.

WELCH, J., dissents, with opinion.

KELLUM, J., joins in dissent by Judge WELCH.

WELCH, Judge,

dissenting.

Donald Eugene Nix pleaded guilty to illegal possession of a controlled substance (methamphetamine), a violation of § 13A-12 — 212(a)(1), Ala.Code 1975. Before entering his guilty plea, Nix reserved the right to appeal the trial court’s denial of his motion and amended motion to suppress the methamphetamine an officer seized from his pants pocket during a traffic stop. See Smith v. State, 884 So.2d 3, 6 (Ala.Crim.App.2003) (noting that before entering his guilty plea, a defendant must reserve any issue he or she wishes to appeal); see also Rule 26.9(b)(4)(i), Ala. R.Crim. P. (stating that “before entering the plea of guilty [the defendant must have] expressly reserved his or her right to appeal with respect to a particular issue or issues”).

A hearing was conducted on Nix’s motions to suppress. Corporal A.D. Ferguson of the Montgomery Police Department gave the following testimony. On September 21, 2010, at approximately 11:30 a.m., he and his partner, Corporal M.E. Mash-burn were driving in their patrol car on Rigby Street near Lower Wetumpka Road in Montgomery as part of a “crime-reduction team” created to “ferret out crime in a neighborhood that’s been identified as a high crime area,” because the police department had received several complaints regarding drugs being sold in this area. (R. 17.) An automobile driven by William Dowe, in which Nix was the only passenger, swerved into Cpl. Ferguson’s lane, almost hitting his patrol car head-on. Because the officers had witnessed a traffic infraction and because they needed to investigate whether the driver was intoxicated or “high,” the officers turned their vehicle around and turned on the “lights” and siren, to initiate a traffic stop of the automobile. (R. 19, 20.) When Dowe and Nix saw the officers in pursuit, they parked their automobile in the driveway of a nearby house. Cpl. Ferguson opined that Dowe and Nix parked in the driveway believing that it would somehow be to their benefit if the officers believed they lived there. The officers parked behind Dowe’s vehicle to conduct the traffic stop. The officers discovered that neither Dowe nor Nix lived in the house attached to the driveway where they had parked nor did they know the homeowner; neither had any identification; and the automobile in which they were riding did not belong to either of them. Cpl. Ferguson removed Dowe from the automobile and conducted a safety patdown for weapons. (R. 23.) Cpl. Ferguson discovered a plastic bag containing marijuana in the change pocket of Dowe’s pants. According to Cpl. Ferguson, “[a]t that time,” Cpl. Mashburn had Nix get out of the vehicle, and pursuant to a patdown search of Nix, Officer Mash-burn found a plastic bag containing crystal methamphetamine in Nix’s pants pocket. (R. 13.)

Cpl. Mashburn, gave testimony similar to that of Cpl. Ferguson with the following exceptions and additions. Cpl. Mashburn stated that Dowe and Nix almost “T-boned” the officer’s patrol car because Dowe and Nix were apparently looking at the officers, causing Dowe to drive through a, stop sign. (R. 34.) Dowe and Nix then made a left turn so they were traveling in the opposite direction from the officers. He said that “before” the traffic stop was initiated, both Dowe and Nix were “very nervous” and “seemed to be very sh[aken] up” when they noticed the officers in their patrol car. (R. 28-29.)

After the stop was initiated and Cpl. Ferguson had removed Dowe from the vehicle, Cpl. Mashburn stated that he continued to talk to Nix, who was still seated inside the vehicle. Cpl. Mashburn stated that Nix was “shaking, sweating, [and] wouldn’t look me in the eye.” (R. 29.) However, Cpl. Mashburn conceded that Nix’s demeanor could have been caused as a result of to the near traffic accident that had occurred moments earlier. Cpl. Mashburn stated that “[he] looked down, and [he] saw something in [Nix’s] pocket at the time. [He] saw a knot and a small clear part of a plastic baggy.” (R. 29.) Cpl. Mashburn asserted that because the plastic bag was knotted, he knew it had something inside the bag. Cpl. Mashburn stated that in his work experience he has seen about 500 plastic bags similar to the one he saw protruding from Nix’s pocket and that those bags had contained narcotics; therefore, based on his experience and training, when he sees a plastic bag “like that,” he thinks it is narcotics. (R. 29.) However, Cpl. Mashburn conceded that he “could not see what was in the bottom of the plastic bag. [He] could just see from the knot up.” (R. 30.) Cpl. Mashburn stated that “without being able to see through [Nix’s] pockets” he was “speculating there might be narcotics involved.” (R. 35.)

Cpl. Mashburn stated that when Cpl. Ferguson found marijuana on Dowe, Mashburn instructed Nix to exit the vehicle and “the first thing [he] did was remove that clear plastic baggy.” (R. 31.) The plastic bag contained crystal methamphetamine. Continuing the patdown, Cpl. Mashburn found more crystal methamphetamine in Nix’s back pockets. Nix was handcuffed and taken to narcotics headquarters where Nix was positively identified and charged.

In support of his motion seeking to suppress the crystal methamphetamine, Nix argued that it was the fruit of a poisonous tree because, he says, he was searched as a direct consequence of what he alleged was an illegal search of Dow, and because the seizure of the plastic bag was based on only Cpl. Mashburn’s observation of the top knot of the bag protruding from Nix’s pocket, without Cpl. Mashburn’s knowing what was in the bag. The trial court denied the motion. Nix reserved the right to challenge on appeal the denial of his motion to suppress and then entered a plea of guilty.

On appeal Nix contends that because Cpl. Mashburn testified that he saw only the top knot of the plastic bag protruding from Nix’s pocket and because there was no testimony that he believed the bag to be a weapon and because he did not conduct a “feel” test to determine what was in the bag before removing it from Nix’s pocket, the seizure of the plastic bag was unlawful; therefore, Nix argues, the trial court should have granted his motion to suppress. The majority upholds the trial court’s denial of the motion to suppress, finding that probable cause existed to seize the plastic bag from Nix’s pocket. The majority states:

“[b]ecause the baggie was in plain view and was immediately identified by Officer Mashburn as contraband, and based on the totality of the circumstances, he had probable cause to seize the methamphetamine during the lawful patdown.”

Although I believe there may have been reasonable suspicion to justify further investigation, I do not believe that probable cause existed to justify seizure of the plastic bag. I believe the plastic bag was illegally seized; therefore, I must respectfully dissent.

“ ‘ “Whether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). ‘Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ Sheridan v. State, 591 So.2d 129,130 (Ala.Cr.App.1991).” ’ ”

Abner v. State, 741 So.2d 440, 443 (Ala.Crim.App.1998) (quoting Woods v. State, 695 So.2d 636 (Ala.Crim.App.1996), quoting in turn State v. Stallworth, 645 So.2d 323, 325 (Ala.Crim.App.1994)).

Based on the fact scenario in this case, the only possible justification for finding probable cause to seize the plastic bag is the plain-view doctrine. The plain-feel doctrine has no application in this case because no patdown of the pocket was conducted.

“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.” Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), citing Coolidge v. New Hampshire, 408 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

“[T]he United States Supreme Court has identified three requirements for application of the plain view doctrine, which are 1) that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, 2) that the incriminating character of the evidence must be immediately apparent, and 3) that the officer have a lawful right of access to the object itself.”

Cauls v. Virginia 55 Va.App. 90, 99, 683 S.E.2d 847, 851 (2009), citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The traffic stop involving Nix was lawful; therefore, Cpl. Mashburn did not violate the Fourth Amendment in arriving at the place from which he could see the top knot of the plastic bag protruding from Nix’s front pants pocket. The determination before this Court is whether the “incriminating character of the plastic baggy was immediately apparent,” giving Cpl. Mashburn the right to seize the plastic bag. Cauls v. Virginia 55 Va.App. at 100, 683 S.E.2d at 851. If “the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i.e., ‘if its incriminating character [is not] immediately apparent,’ ... the plain-view doctrine cannot justify its seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (emphasis omitted) (quoting Horton v. California, 496 U.S. at 136).

I do not believe that the incriminating character of the contents of the plastic bag were immediately apparent. Cpl. Mash-burn testified that, while Nix was still seated in his vehicle, Cpl. Mashburn saw the top knot of the plastic bag in question protruding from Nix’s pocket, and Cpl. Mashburn believed, based on his past law-enforcement experience, that plastic bags similar to Nix’s bag contain narcotics. However, Cpl. Mashburn stated he was speculating as to the contents of Nix’s plastic bag based on his past experience. Cpl. Mashburn stated that he did not actually know that the plastic bag contained narcotic because he neither saw narcotics nor conducted a patdown of the pocket concealing the contents of the plastic bag. Nevertheless, Cpl. Mashburn testified that when he instructed Nix to exit his vehicle, the first thing he did was remove the plastic bag from Nix’s pocket.

This Court has previously reversed a conviction in a case with similar facts. In Abner v. State, supra, the arresting officer, Officer Drummond, “walked up to the appellant ... at which point Officer Drum-mond saw a clear plastic bag sticking partly out of the appellant’s right front pants pocket.” Concisely, the following facts and conclusion were presented in Abner:

“The state argues that the cocaine was lawfully seized from the appellant because, it says, Officer Drummond had probable cause to believe that a crime was being committed in his presence. The state relies on the following facts to support its argument: (1) that the appellant was observed with or near a large group of people who had congregated in the street and who were playing loud music and drinking beer; (2) that when the police officers approached, the people in the group became nervous and started to mill around ‘as if they wanted to get out of the area’; (3) that the area was known to police to be an area where drug activity occurred; (4) that when Officer Drummond asked the appellant to get off the car he was sitting on, the appellant looked away and refused to make eye contact with the officer; (5) that there was a clear plastic bag in the appellant’s pants pocket, and Officer Drummond’s experience was that plastic bags were frequently used to transport drugs; and (6) that when the appellant got off the car, he quickly-turned from Officer Drummond so that the officer could not see the plastic bag. We hold that these facts, considered individually or taken together, did not constitute sufficient facts and circumstances upon which to find probable cause to arrest the appellant, to search his person, or to seize the plastic bags from his pocket.
“Based on Ex parte Tucker, [667 So.2d 1339 (Ala.1995),] and our analysis of the ‘totality of the circumstances’ in this case, we must conclude that the circumstances did not supply probable cause to search the appellant or to seize the plastic bags from his pants pocket. Thus, Officer Drummond’s intrusion into the appellant’s pocket to remove the plastic bags was unlawful. Any evidence uncovered by Officer Drummond after his initial unlawful intrusion into the appellant’s pocket and his removal of the first plastic bag was unlawfully obtained. Consequently, the cocaine contained in the second plastic bag found in and removed from the appellant’s pocket was seized pursuant to an unlawful search, and it was error for the trial court to deny the appellant’s motion to suppress the evidence.”

741 So.2d at 443-446 (footnote omitted; emphasis added).

I agree with the conclusion reached in Abner:

“It is not the primary purpose of plastic bags to hold illegal drugs, and the fact that an officer has first-hand experience with plastic bags containing drugs cannot, without more, provide probable cause to seize each plastic bag the officer may encounter. Moreover, as was the case in Ex parte Tucker, [667 So.2d 1339 (Ala.1995) ], the fact that the appellant was in an area known for drug activity and the fact that he had a clear plastic bag in his pocket that was partially exposed ‘do not by themselves, or taken together, constitute sufficient “facts and circumstances” upon which to base a finding of probable cause to search’ the appellant. See Ex parte Tucker, 667 So.2d [1339] at 1347 [ (Ala.1995) ].”

741 So.2d at 445.

Based on the above, I respectfully dissent.

KELLUM, J, concurs.

      . The United States Supreme Court in Dickerson held that the plain-view doctrine did not support the warrantless search of a lump in defendant’s pocket where the incriminating object was not immediately identifiable as contraband.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Bruce Edward COMMITTE, Respondent.
    No. SC11-468.
    Supreme Court of Florida.
    April 3, 2014.

      John F. Harkness, Jr., Executive Director, Adria E. Quíntela, Staff Counsel, and Olivia Paiva Klein, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Bruce Edward Committe, Pensacola, FL, pro se.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent Bruce Edward Committe be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended for ninety-one days. In July 2013, the Court issued an order directing Committe to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction imposed. We have considered the responses filed by Committe and The Florida Bar. As discussed below, we approve the referee’s findings of fact, as well as the referee’s recommendation that Committe be found guilty of violating Bar Rules 4-3.4(g) and 4-8.4(d). However, we disapprove the referee’s recommendation that Committe be found not guilty of violating Bar Rules 4-3.1 and 4-3.4(c) and, instead, find him guilty of violating those rules. We also disapprove the referee’s recommended discipline. Given Committe’s serious ethical misconduct, and the aggravating factors, we conclude that a three-year suspension is the appropriate sanction.

FACTS

In March 2011, The Florida Bar filed a complaint against Respondent Committe, alleging that he engaged in misconduct in violation of four Bar Rules: 4-3.1 (a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous); 4-3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); 4-3.4(g) (a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). A referee was appointed to consider the matter. Following a hearing, the referee submitted his report for the Court’s review, in which he makes the following findings and recommendations.

In December 2002, Committe filed a civil lawsuit on behalf of a client against the defendant. The complaint alleged two counts, one for malicious or tortious interference with a business relationship, and one for slander. Counsel for the defendant filed a motion for summary judgment. The circuit court held a hearing on the motion and, in June 2004, issued a “Final Summary Judgment” order in favor of the defendant. In relevant part, the circuit court held that there was no admissible evidence upon which a cause of action for either count alleged in Committe’s complaint could stand. The court further held that even if certain evidence would be admissible over a hearsay objection, there was nothing to indicate that any of the defendant’s statements were false or malicious. The circuit court reserved jurisdiction to rule on the defendant’s motion for attorney’s fees and costs. Committe did not appeal the Final Summary Judgment order at that time.

In October 2004, the circuit court held a hearing on the defendant’s motion for attorney’s fees. Following the hearing, on October 29, 2004, the court entered an Order on Defendant’s Motion for Attorney Fees and Costs. In the order, the court held that Committe and his client knew or should have known that the claims asserted in their complaint were not supported by the material facts; would not be supported by the application of then-existing law to those facts; and were frivolous. Accordingly, the circuit court awarded the defendant $13,000, to be paid in equal shares by Committe and his client.

Subsequently, in January 2005, the circuit court entered a “Final Judgment” in the civil case. Committe appealed the order to the First District Court of Appeal. In February 2007, the district court per curiam affirmed the circuit court’s ruling.

Following the appeal, the defendant, who was by then not represented by an attorney, sent Committe two letters, one in December 2007 and one in May 2008, seeking payment of the attorney’s fees and costs awarded to her in the circuit court’s October 2004 order. Several days after receiving her May 2008 letter, Committe wrote to the United States Attorney, accusing the defendant of attempting to extort money from him and requesting that she be criminally prosecuted.

Based on these facts, the referee recommends that Committe did not violate Bar Rule 4-3.1 (a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous). The referee concluded that Committe’s complaint was not frivolous, that it alleged valid causes of action for malicious and tortious interference with a business relationship and slander, and that there were sufficient facts before the circuit court to support a prima facie case as to each claim. Thus, the referee stated, “it is the conclusion of this Referee that nothing in the record admitted as evidence in this matter supports a conclusion that the claim made by the Plaintiff lacked legal or factual merit.”

The referee next recommends that Com-mitte be found not guilty of violating Bar Rule 4-3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists). The referee found that the Bar failed to demonstrate by clear and convincing evidence that Committe had the financial ability to pay his portion of the attorney’s fees ordered in the circuit court’s October 2004 order. Thus, the referee concluded that the Bar did not prove that Committe willfully failed to pay his share of attorney’s fees and costs associated with the underlying litigation.

Finally, the referee recommends that Committe be found guilty of violating Bar Rules 4-3.4(g) (a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). Given the timing of Committe’s letter reporting the defendant to the United States Attorney for alleged extortion, the referee concluded that Committe’s sole purpose in writing the letter was to gain an advantage in the underlying civil proceeding by intimidating the defendant into deciding not to pursue her right to collect fees from him. The referee noted: “The fact that this Referee has concluded that the Order granting fees and costs was improvidently entered against the Respondent in the first place in no way ameliorates the seriousness of the Respondent’s violation of 4-3.4(g) and 4 — 8.4(d).”

The referee found six aggravating factors in this case: prior disciplinary history; a pattern of misconduct; multiple offenses; submission of false evidence or false statements during the disciplinary proceeding; vulnerability of the victim; and substantial experience in the practice of law. The referee did not find any mitigating factors. As to the sanction, the referee recommended that Committe be suspended from the practice of law for ninety-one days. The referee also awarded costs to the Bar in the amount of $8,934.35.

Committe has filed a petition for review of the referee’s report and recommendations, particularly the referee’s recommendation that he be found guilty of violating Bar Rules 4-3.4(g) and 4-8.4(d). The Bar has filed a cross-petition for review, challenging the referee’s recommendation that Committe be found not guilty of violating rales 4-3.1 and 4-3.4(c). On July 26, 2013, we issued an order directing Committe to show cause why the referee’s recommended sanction should not be disapproved and a more severe sanction, including a substantial suspension of up to three years or disbarment, be imposed. The order further directed Committe to address the appropriate sanction if the Court disapproved the referee’s recommendation that he be found not guilty of violating Bar Rules 4-3.1 and 4-3.4(c). Finally, the order provided that, on the Court’s own motion, Committe was suspended “pending further order of the Court.”

ANALYSIS

The Referee’s Recommendations as to Guilt

We first address the Bar’s argument urging the Court to . find Committe guilty of violating Bar Rules 4-3.1 and 4-3.4(c). In reviewing a referee’s recommendations as to guilt, the Court has stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005).

Bar Rule 4-8.1 provides that a lawyer shall not “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” The comment to the rule explains that an action is not considered frivolous even if the lawyer believes that the client’s position ultimately will not prevail; the action is frivolous, however, if the lawyer is unable to either make a good faith argument on the merits of the action or to support the action by a good faith argument for an extension, modification, or reversal of existing law. In this instance, the referee concluded that Committe’s complaint in the civil case stated valid causes of action for tortious interference with a business relationship and slander and, therefore, was not frivolous. However, we find that the referee’s recommendation in this regard is not supported by the factual findings. The circuit court presiding over Committe’s lawsuit held a hearing in the case and entered a Final Summary Judgment order holding that Committe’s claims for relief were not supported by any admissible evidence. The court further held that even if certain evidence were deemed admissible over a hearsay objection, there was nothing to support Committe’s claim that the defendant made false or malicious statements that cost Committe’s client his job. The circuit court later held a separate hearing to address the defendant’s motion for attorney’s fees. Following that hearing, the court entered an Order on Defendant’s Motion for Attorney Fees and Costs, expressly concluding that Committe’s complaint was frivolous and without merit. The First District Court of Appeal affirmed the circuit court’s rulings. Given such facts in the record, the referee’s recommendation that Committe’s complaint was not frivolous is not supported. Accordingly, we find Committe guilty of violating Bar Rule 4-3.1.

Similarly, we conclude that the referee’s recommendation that Committe be found not guilty of violating Bar Rule 4-3.4(c) is also not supported. Rule 4 — 3.4(c) provides that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” The referee here found that the circuit court’s October 2004 order directed Committe and his client to pay the defendant $13,000 in attorney’s fees. It is not disputed that Committe has failed to pay his portion of the money owed. Nonetheless, the referee concluded that the Bar did not present clear and convincing evidence to show that Committe had the financial ability to comply with the judgment, and thus failed to prove that he “willfully” disobeyed a court order. We note that rule 4-3.4(c) only requires that the Bar prove that Committe “knowingly” disobeyed an order. The Rules of Professional Conduct provide that “ ‘[kjnowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question.” See Preamble: A Lawyer’s Responsibilities, Rules of Professional Conduct Here, it is clear that Committe had knowledge of the circuit court’s October 2004 attorney fee order. Nonetheless, he has consistently refused to comply with the order. Although Committe states that he is unable to pay the judgment, his argument is inconsistent with his previous position on this issue — in his letter to the defendant, Committe maintained that, because the circuit court’s January 2005 Final Judgment did not reference the amount owed in attorney’s fees, the fee award was not enforceable. However, the Final Judgment expressly referenced and incorporated the court’s October 2004 order granting the defendant’s motion for attorney’s fees. Although Com-mitte certainly would have been entitled to assert his inability to pay the attorney’s fee judgment in an appropriate legal proceeding, he is not permitted to simply ignore the judgment. See Fla. Bar v. Gersten, 707 So.2d 711, 713 (Fla.1998) (“An attorney is not permitted to ignore and refuse to follow a court order based upon his personal belief in the invalidity of that order.”) (quoting Fla. Bar v. Rubin, 549 So.2d 1000, 1003 (Fla.1989)). We conclude that, because Committe was aware of the order directing him to pay attorney’s fees, and because he has consistently refused to comply with the order, we disapprove the referee’s recommendation and find Com-mitte guilty of violating Bar Rule 4-3.4(c).

Turning next to Committe’s arguments on review, Committe urges the Court to disapprove the referee’s recommendation that he be found guilty of violating Bar Rules 4-3.4(g) and 4-8.4(d). However, we approve the referee’s recommendation that Committe be found in violation of those rules.

Rule 4-3.4(g) provides that a lawyer shall not “present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” Here, the referee found Committe guilty of violating rule 4-3.4(g) based on his letter reporting the defendant to the United States Attorney for alleged attempted extortion. Indeed, the referee found that the timing of Committe’s letter to the United States Attorney, within days of receiving the defendant’s letter seeking payment of the attorney’s fees, indicated that Committe’s sole purpose in writing the letters was to gain an advantage in the underlying civil proceeding by intimidating her into deciding not to pursue her rights to collect the fees. We agree. Although Committe cites several provisions of the United States Constitution and federal law in arguing that he was required to report the defendant’s “extortion” to federal authorities, and that his reporting is protected under the Petition Clause of the First Amendment, his reliance on these provisions is misplaced. Committe knew that the circuit court entered an order directing him to pay a portion of the defendant’s attorney’s fees, and that the judgment was affirmed on appeal. Thus, he reasonably should have known that the defendant’s May 2008 letter was simply an attempt to collect those fees. Because the defendant’s letter clearly was not a federal crime, Committe had no obligation to report her to the United States Attorney. Moreover, Committe’s filing a baseless allegation against the defendant is not protected by the First Amendment. See McDonald v. Smith, 472 U.S. 479, 484, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985) (noting that, “filing a complaint in court is a form of petitioning activity; but ‘baseless litigation is not immunized by the First Amendment right to petition.’ ”) (quoting Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) (“Just as false statements are not immunized by the First Amendment right to freedom of speech ... baseless litigation is not immunized by the First Amendment right to petition.”)). Accordingly, based on these facts, we approve the referee’s recommendation that Committe be found guilty of violating Bar Rule 4-3.4(g).

Lastly, we also approve the referee’s recommendation that Committe be found guilty of violating rule 4-8.4(d). Committe’s filing of a frivolous and merit-less complaint, his failure to comply with a court order directing him to pay a portion of the defendant’s attorney’s fees, and his reporting the defendant to the United States Attorney in an effort to intimidate her, are clearly prejudicial to the administration of justice.

The Referee’s Recommended Sanction

We address next the referee’s recommended sanction, 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 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).

We agree with the referee’s recommendation in this case that Committe’s misconduct warrants at least a suspension. See Fla. Stds. Imposing Law. Sanes. 6.32 (“Suspension is appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding”); 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”); and 8.1 (“Disbarment is appropriate when a lawyer (a) intentionally violates the terms of a prior disciplinary order and such violation causes injury to a client, the public, the legal system, or the profession; or (b) has been suspended for the same or similar misconduct, and intentionally engages in further similar acts of misconduct”). However, considering the serious nature of his misconduct, together with the aggravating factors, we disapprove the referee’s recommendation that Committe be suspended for only ninety-one days. We find instead that the appropriate sanction for Committe’s misconduct is a three-year suspension from the practice of law.

Our prior decisions suggest that each of Committe’s ethical violations, standing alone, would warrant a rehabilitative suspension. See, e.g., Fla. Bar v. Gwynn, 94 So.3d 425 (Fla.2012) (suspending an attorney for ninety-one days for, among other things, filing numerous motions for sanctions against opposing counsel and other frivolous claims in bad faith, needlessly delaying the proceedings); Fla. Bar v. Hagendorf, 921 So.2d 611 (Fla.2006) (suspending an attorney for two years for filing a meritless quiet title action in a Nevada state court asserting meritless claims, misrepresenting facts to the Nevada state court, and filing frivolous litigation against the Nevada State Bar); Fla. Bar v. Gersten, 707 So.2d 711 (suspending an attorney until he complied with a prior contempt order, and for one year thereafter, due to the attorney’s failure to comply with a subpoena from the state attorney regarding an investigation into a car the attorney reported stolen).

In the ease presented here, Committe filed a frivolous and meritless lawsuit against the defendant, wasting both her time and resources and those of the court system. The circuit court dismissed the suit and ordered Committe to pay a portion of the defendant’s attorney’s fees and costs; however, Committe has refused to comply with the order for years. When the defendant attempted to collect the money she was owed, Committe reported her to the United States Attorney for alleged extortion. Considering these events together, it is clear that Committe’s misconduct is serious and egregious, and that it caused harm to both the defendant and the court system, warranting a severe sanction.

We have also considered the significant aggravating factors found by the referee: a disciplinary history; a pattern of misconduct; multiple offenses; submission of false evidence or statements during the disciplinary process; vulnerability of the victim; and substantial experience in the practice of law. We discuss the most serious of these aggravating factors here.

The referee found that Committe was previously suspended for ninety days in Florida Bar v. Committe, 916 So.2d 741 (Fla.2005). In the prior case, an attorney filed a debt collection suit against Committe, seeking to collect a money judgment. The attorney made several attempts to schedule Committe for a deposition. Id. at 743. Committe filed motions for protective orders based on the Fair Debt Collection Practices Act (FDCPA), alleging that the attorney was required to cease communicating with Committe under the Act. The court denied Committe’s claims, and ultimately held Committe in contempt of court based on his failure to comply with the discovery requests. Id. However, while the state litigation was ongoing, Com-mitte filed actions against the attorney in federal court, alleging the same violations of the FDCPA. The federal district court judge granted summary judgment in favor' of the attorney, noting that Committe’s claims were frivolous, that his intent was to harass the attorney, and that the cases were brought in bad faith. The judge also determined that sanctions were warranted, and ordered Committe to pay reasonable attorney’s fees and costs. Id. at 744. Based on these facts, the Court found Committe in violation of several Bar Rules, including three of the same rules at issue in this case: 4-3.1, 4-3.4(c), and 4-8.4(d). Id. The referee in the instant case noted that Committe’s prior misconduct, including harassing opposing counsel and abusing the legal system, was similar to his actions here. This Court has long held that “cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct.” Fla. Bar v. Patrick, 67 So.3d 1009, 1018 (Fla.2011) (quoting Fla. Bar v. Walkden, 950 So.2d 407, 410 (Fla.2007)).

Additionally, the referee found that Committe gave false testimony during the disciplinary hearing. Committe testified before the referee that he appealed the circuit court’s June 2004 Final Summary Judgment order; that the First District Court of Appeal issued an order to show cause why the appeal should not be dismissed; that Committe submitted the show cause order to the circuit court judge; and that the judge ultimately issued the January 2005 Final Judgment. The referee found that this testimony was false, in that a review of the district court’s docket reveals that no show cause order was ever issued. Rather, it is apparent that Committe failed to appeal the June 2004 Final Summary Judgment order. Under the guise of the alleged Show Cause Order from the district court, Committe was able to obtain a Final Judgment from the circuit court in January 2005, and thus another thirty days to file his appeal.

Committe’s conduct in this case, considered together with his disciplinary history, his false statements to the referee, and the other aggravating factors, clearly demonstrates that he is abusive of the legal process. We conclude that this type of serious misconduct and unethical behavior warrants a more severe sanction than that recommended by the referee. Accordingly, we disapprove the referee’s recommendation, and instead suspend Committe for three years.

CONCLUSION

Accordingly, Respondent Committe is hereby suspended from the practice of law for three years. The suspension shall be effective, nunc pro tunc, August 26, 2013, the date on which Committe’s suspension, imposed in this Court’s order of July 26, 2013, became effective. Because Com-mitte is currently suspended, it is not necessary to provide him with thirty days to close out his practice to protect the interests of existing clients. Committe shall fully comply with Rule Regulating the Florida Bar 3 — 5.1(h). Further, Committe shall accept no new business from the date this opinion is filed until he is reinstated by order of this Court.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Bruce Edward Committe in the amount of $8,934.35, for which sum let execution issue.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 15, Fla. Const.


text:
    Donald WILLIAMS, Petitioner, v. Michael D. CREWS, etc., Respondent.
    No. SC12-1986.
    Supreme Court of Florida.
    April 3, 2014.
    Donald A. Williams, pro se, Chipley, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Nicholas Adam Merlin, Assistant Attorney General, Miami, FL, for Respondent.
   PER CURIAM.

Donald Williams, an inmate in state custody, filed a pro se petition for writ of habeas corpus with this Court challenging his convictions and sentences in State v. Williams, Case No. F02-37491B. By order dated August 28, 2013, we dismissed Williams’ petition. Williams v. Crews, 123 So.3d 562 (Fla.2013) (table decision). Concurrent with the dismissal of Williams’ petition, we expressly retained jurisdiction to pursue possible sanctions against Williams. Id.; see Fla. R.App. P. 9.410(a) (Sanctions; Court’s Motion).

Williams was convicted of five counts of kidnapping, five counts of robbery, two counts of aggravated battery, one count of burglary, and one count of possession of a firearm by a convicted felon. In 2005, the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, sentenced Williams to a fifteen-year term on the possession of a firearm by a convicted felon count, to a thirty-year term on each of the aggravated battery counts, and to life in prison on each of the remaining counts. The Third District Court of Appeal affirmed Williams’ convictions and sentences in a per curiam opinion dated October 18, 2006. Williams v. State, 941 So.2d 386 (Fla. 3d DCA 2006) (table decision). After his convictions and sentences became final, Williams filed numerous pro se filings in this and other courts. Williams’ substantial filing history in the courts below has resulted in him being barred from filing any further pro se filings in both the circuit court and the district court. Williams v. State, 106 So.3d 964 (Fla. 3d DCA 2013); Order Prohibiting the Defendant From Filing Any Further Postconviction Motions Without the Approval and Signature of an Attorney Licensed in the State of Florida, State v. Williams, No. F02-37491B (Fla. 11th Cir. Ct. Apr. 7, 2009).

Because Williams’ petition in this case contained false information and because Williams has filed eleven extraordinary writ petitions with this Court since 2012, this Court issued an order directing Williams to show cause why he should not be prohibited from filing any further pro se filings related to case number F02-37491B. This Court also directed Williams to show cause why, pursuant to section 944.279(1), Florida Statutes, a certified copy of this Court’s findings should not be forwarded to the appropriate institution for disciplinary procedures pursuant to the rules of the Florida Department of Corrections. In response to the order to show cause, Williams argued that sanctions should not be imposed against him because this Court has failed to correct the manifest injustice that he believes has occurred in his case. Williams explained that his pattern of filing numerous extraordinary writ petitions in this Court is the result of this Court failing to analyze the merits of his claims, being “opinionated,” and being manipulated by the Attorney General’s Office.

Upon due consideration of Williams’ response, we find that his arguments are without merit and that he has failed to show cause why sanctions should not be imposed. After reviewing Williams’ pro se filings, we find that each proceeding initiated by Williams was either devoid of merit or inappropriate for review in this Court. Williams’ response shows no remorse about providing this Court with false information and misusing its limited judicial resources. We conclude that, unless he is stopped, Williams will continue to file mer-itless and misleading requests for relief in this Court regarding his convictions or sentences.

Accordingly, we find that the petition filed by Donald Williams in this case contained false information and is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2013). Consistent with section 944.279(1), Florida Statutes (2013), we direct the Clerk of this Court to forward a certified copy of this opinion to the Florida Department of Corrections’ institution or facility where Williams is incarcerated. See Steele v. State, 14 So.3d 221, 224 (Fla.2009). We also direct the Clerk of this Court to reject any future pleadings or other requests for relief submitted by Donald Williams that are related to his convictions or sentences in Case No. F02-37491B unless such filings are signed by a member in good standing of The Florida Bar. Under the sanction herein imposed, Williams may only petition the Court about his convictions or sentences in Case No. F02-37491B through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

      . See Pettway v. State, 776 So.2d 930, 931 (Fla.2000) (stating that the Court generally will not consider the repetitive petitions of persons who have abused the judicial processes of the lower courts such that they have been barred from filing certain actions there).

      . In his statement of case and facts Williams affirmatively asserted that "[pjetitioner is not prohibited for filing any pro se motion in the 11th Judicial Circuit Court without a licensed attorney, nor would the 11th Judicial Circuit Court accept jurisdiction of no motion to transfer to its court.” Yet, contrary to his assertion, the circuit court entered an order on April 7, 2009, prohibiting Williams from filing any future pro se requests for post-conviction relief. Order Prohibiting the Defendant From Filing Any Further Postconviction Motions Without the Approval and Signature of an Attorney Licensed in the State of Florida, State v. Williams, No. F02-37491B (Fla. 11th Cir.Ct. Apr. 7, 2009). The Third District affirmed the circuit court's order. Williams v. State, 13 So.3d 483 (Fla. 3d DCA 2009) (table decision).

        .See Williams v. Crews, Case No. SC13-1564, 132 So.3d 223 (Fla. Dec. 27, 2013) (habeas corpus petition dismissed as unauthorized); Williams v. Crews, Case No. SC13-1140, 131 So.3d 791 (Fla. Dec. 11, 2013) (habeas corpus petition dismissed as unauthorized); Williams v. State, 114 So.3d 938 (Fla.2013) (table decision) (mandamus petition denied); Williams v. State, 114 So.3d 938 (Fla.2013) (table decision) (mandamus petition dismissed); Williams v. State, 103 So.3d 144 (Fla.2012) (table decision) (mandamus petition dismissed as moot); Williams v. State, Case No. SC12-976 (Fla. June 25, 2012) (mandamus petition transferred to the district court); Williams v. State, Case No. SC12-974 (Fla. June 15, 2012) (mandamus petition transferred to the circuit court); Williams v. Tucker, 103 So.3d 144 (Fla.2012) (table decision) (habeas corpus petition dismissed as unauthorized); Williams v. Tucker, 90 So.3d 274 (Fla. 2012) (table decision) (habeas corpus petition dismissed as unauthorized): Williams v. State, 92 So.3d 215 (Fla.2012) (table decision) (mandamus petition denied without prejudice).

      . See State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999) (stating that prior to the imposition of sanctions, a court must afford the litigant a meaningful opportunity to show cause why the sanctions are inappropriate).

      . The United States Supreme Court has stated that "[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989).


author: QUINCE, J.

text:
    STATE of Florida, Petitioner, v. Brian D. KABLITZ, Respondent.
    No. SC11-2283.
    Supreme Court of Florida.
    April 3, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Daniel Patrick Hynd-man, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Carol Stafford Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, FL, for Respondent.
   QUINCE, J.

We have for review Kablitz v. State, 134 So.3d 969, 36 Fla. L. Weekly D2358 (Fla. 4th DCA Oct. 26, 2011), in which the Fourth District Court of Appeal found it fundamental error when the trial court failed to instruct the jury that the defendant could not be convicted of both theft and dealing in stolen property in connection with one scheme or course of conduct. The Fourth District certified conflict with Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011), approved, 121 So.3d 535 (Fla.2013). At the time that the Fourth District issued its decision below, Blackmon was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed the proceedings in this case pending disposition of Blackmon v. State, 121 So.3d 535 (Fla.2013), in which we ultimately affirmed the First District’s ruling that when a defendant is convicted of both dealing in stolen property and theft in connection with the same scheme or course of conduct, though “the trial court erred, it was not fundamental error such that we would require a new trial.” Id. at 549. We then issued an order in the instant case directing Respondent to show cause why this Court should not accept jurisdiction, summarily quash the Fourth District’s decision in Kablitz, and remand for reconsideration in light of our decision in Blackmon. Respondent filed a response conceding that this Court’s decision in Blackmon was controlling. Petitioner did not reply.

Upon consideration of Respondent’s response, we grant the petition for review, quash the district court’s decision in Ka-blitz, and remand this case to the Fourth District with instructions that the case be remanded to the trial court for further proceedings consistent with this Court’s decision in Blackmon.

It is so ordered.

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


text:
    Robert Eugene HENDRIX, Appellant, v. STATE of Florida, Appellee.
    No. SC14-583.
    Supreme Court of Florida.
    April 10, 2014.

      Harry P. Brody, Sarasota, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Mitchell David Bishop, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Robert Eugene Hendrix, a prisoner under sentence of death, appeals an order from the Fifth Judicial Circuit denying his successive postconviction motion filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the circuit court’s order.

I. Background

Hendrix is scheduled for execution on April 23, 2014, for the murders of Elmer and Michelle Scott. “He was convicted of two counts of premeditated first-degree murder, two counts of conspiracy to commit murder, and one count of armed burglary.” Hendrix v. State, 637 So.2d 916, 918 (Fla.), cert. denied, 513 U.S. 1004, 115 S.Ct. 520, 130 L.Ed.2d 425 (1994). In 1990, Hendrix planned to kill his cousin, Elmer, to prevent him from testifying against Hendrix. On August 27, 1990, Hendrix drove to the Scotts’ home, shot Elmer in the head, and slit his throat after hitting him over the head with the butt of a gun. He slashed Michelle’s throat. Id.

This Court upheld the convictions and death sentences on direct appeal, but reversed the second conspiracy charge and vacated the accompanying thirty-year sentence. Id. at 921. In 2005, this Court upheld the denial of postconviction relief and denied habeas relief. Hendrix v. State, 908 So.2d 412 (Fla.2005). Hendrix filed his current successive postconviction motion after Governor Rick Scott signed a death warrant on March 19, 2014.

II. Analysis

In these proceedings, Hendrix claims that his trial was fraught with substantive and procedural errors that denied him a fair and impartial trial and that the circuit court erred in limiting his ability to file additional successive motions. Because we find these claims are procedurally barred and without merit, respectively, we affirm the comprehensive order of the circuit court denying relief on all claims.

A. Biased Judge

Hendrix first argues that the judge who presided over his trial was biased. Hendrix filed a motion to disqualify Judge Lockett, which was denied. On direct appeal, we affirmed the ruling, finding that Hendrix never alleged that the judge was biased, never pointed “to a single instance in the entire proceedings wherein the judge displayed partiality,” and only claimed an appearance of conflict of interest. Hendrix, 637 So.2d at 919. We found that the record failed “to show that an improper interest of any kind — or appearance of such interest — was present.” Id. at 920. A successive postconviction motion may not be used to relitigate a claim that has been raised and rejected on direct appeal. See Pardo v. State, 108 So.3d 558, 567 (Fla.), cert. denied, — U.S. -, 133 S.Ct. 815, 184 L.Ed.2d 602 (2012). Accordingly, the circuit court properly found this claim to be procedurally barred.

B. Ineffective Assistance of Counsel

Secondly, Hendrix alleges that counsel was ineffective for failing to investigate and present mitigation. Specifically, Hendrix alleges that counsel failed to present evidence from: (a) family members and friends who would have testified regarding Hendrix’s history of drug abuse, (b) family members regarding Hendrix’s father’s violent temper, and (c) expert witnesses to establish Hendrix’s mental health problems. Each of these claims has been previously raised and rejected. See Hendrix, 908 So.2d at 420-23. Specifically, we stated that counsel’s strategic decision not to present this evidence could not be considered ineffective “particularly in light of the other evidence which showed that Hendrix was quite capable of reasoning.” Hendrix, 908 So.2d at 428. Claims raised and rejected in prior postconviction proceedings are procedurally barred from being relitigated in a successive motion. See Van Poyck v. State, 116 So.3d 347, 362 (Fla.), cert. denied, — U.S. -, 133 S.Ct. 2823, 186 L.Ed.2d 881 (2013). Accordingly, the circuit court properly found these claims procedurally barred.

C. Brady

Third, Hendrix argues that the State committed a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding impeachment evidence regarding confidential informant, Roger LaForce. As with Hendrix’s other claims, this claim was addressed previously by this Court. After agreeing with the circuit court that the evidence was indeed impeachment evidence that was improperly withheld, we concluded that Hendrix failed to demonstrate that prejudice occurred. Hendrix, 908 So.2d at 424-25. Specifically, we stated, “LaForce’s prior assistance as a cooperating defendant, which occurred over a year prior to Hendrix’s arrest, would have had a minimal impact, if any. The more damaging evidence regarding LaForce, that he heard the confession while in prison and contacted the State because he was seeking a deal, had already been presented to the jury.” Id. at 425. Because this claim represents an attempt to relitigate a prior claim, the circuit court properly found it to be procedurally barred. See Van Poyck, supra.

D. Ability to File Additional Postconviction Motions

Hendrix argues that the circuit court improperly limited his ability to file successive postconviction motions. This argument is based on the circuit court’s

March 21, 2014, order stating, “Any and all post conviction motions the Defendant intends to file shall be filed by no later than 12:00 p.m. on Tuesday, March 25, 2014.” However, at the case status conference held on March 26, 2014, successor Judge Sementó stated, “Well, certainly, Mr. Bro-dy, should you find some evidence and you wish to file a motion, that’s up to you. However, at this time I will not modify the order that I previously entered.” Furthermore, both at the case status conference and in his initial brief, counsel for Hendrix conceded that he does not presently have a claim to file. Because Hendrix has not presented this Court with any claim of newly discovered evidence that he was prevented from filing, this claim is without merit.

III. Conclusion

For the reasons expressed above, we affirm the order of the circuit court denying Hendrix’s successive postconviction motion. No rehearing will be entertained by the Court, and the mandate shall issue immediately.

It is so ordered.

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

      . Hendrix also raised this issue in his post-conviction motion, arguing that newly discovered evidence demonstrated that he was denied a neutral and impartial judge. We summarily disposed of the claim because it was not properly preserved. Hendrix, 908 So.2d at 419.