author: BERGER, J. GRIFFIN, J.,

text:
    Mohamed Shaheed BACCHUS, Appellant, v. Heba BACCHUS, Appellee.
    No. 5D12-1939.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.

      Mark S. Troum, of The Troum Law Firm, P.A., Maitland, for Appellant.
    Sherri K. Dewitt and Moses R. Dewitt, of Dewitt Law Firm, P.A., Orlando, for Appellee.
   BERGER, J.

Mohamed Shaheed Bacchus (Husband) appeals an order dated April 17, 2012, extending a temporary injunction against domestic violence in favor of his estranged wife, Heba Bacchus (Wife). We reverse.

A person may obtain an initial injunction for protection against domestic violence if he or she “is either the victim of domestic violence ... or has reasonable cause to believe that he or she is in imminent danger of becoming the victim of domestic violence ....”§ 741.30(6)(a), Fla. Stat. (2010). The statute authorizing issuance of such an injunction contemplates that the injunction will last indefinitely, unless modified or dissolved. Cox v. Deacon, 82 So.3d 827, 827 (Fla. 4th DCA 2011). The statute states:

The terms of an injunction restraining the respondent under subparagraph (a)l. or ordering other relief under sub-paragraph (a)7. shall remain in effect until modified or dissolved. Either party may move at any time to modify or dissolve the injunction. No specific allegations are required. Such relief may be granted in addition to other civil or criminal remedies.

§ 741.S0(6)(c), Fla. Stat. (emphasis added).

The statute also contains a provision for extending an ex parte injunction upon “good cause shown.” However, as a general rule, it is not to be entered for a period exceeding fifteen days. The statute provides:

(c) Any such ex parte temporary injunction shall be effective for a fixed period not to exceed 15 days. A full hearing, as provided by this section, shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the hearing before or during a hearing for good cause shown by any party, which shall include a continuance to obtain service of process. Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance.

§ 741.30(5)(c), Fla. Stat. (emphasis added). The clear purpose of this statute is to preserve the status quo pending a final evidentiary hearing. It does not contemplate entry of a series of temporary injunctions in lieu of a full hearing on a permanent injunction.

In this case, a temporary injunction for protection against domestic violence was initially entered ex parte against Husband and in favor of Wife on November 28, 2011. In accordance with the statute, a hearing on whether a permanent injunction should be entered was scheduled for December 13, 2011. See § 741.30(5)(c), Fla. Stat. In lieu of a hearing, Husband and Wife agreed to an extension of the injunction for a period of four months, or until April 13, 2012, at which time the injunction would expire. Wife was authorized to request a second extension pri- or to its expiration if there were any further incidents.

Prior to expiration of the temporary injunction, Wife moved for a second extension. After an evidentiary hearing, rather than enter a permanent, indefinite injunction, the trial court extended, for an additional year, the temporary injunction for domestic violence previously entered by stipulation of the parties. The April 17, 2012 order made no findings to support the extension, apart from the general finding that there was “a reasonable continuing fear of domestic violence. Oral findings made at the hearing, however, indicate that the extension was based on Husband’s attempts to communicate with Wife through third parties.

Wife’s burden of proof for obtaining a permanent injunction (or an extension of an injunction under the previous statute) required her to prove that she was either the victim of domestic violence or had reasonable cause to believe that she was in imminent danger of becoming a victim of an act of domestic violence. See § 741.30(6)(a), Fla. Stat.; Sheehan v. Sheehan, 853 So.2d 523, 525 (Fla. 5th DCA 2003); see also Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001). In determining the reasonableness of Wife’s fear, the trial court was not limited to examining the circumstances occurring after the previous injunction was entered. See Patterson v. Simonik, 709 So.2d 189, 190 (Fla. 3d DCA 1998). The trial court could also consider the circumstances that initially led to the imposition of the injunction to determine whether Wife’s continuing fear of future violence was reasonable. Id. at 190; see also § 741.30(6)(b), Fla. Stat.; Sheehan, 853 So.2d at 525 (an extension of a prior injunction for domestic violence required evidence that a continuing fear of domestic violence exists and that fear was reasonable based on all the circumstances); Giallanza, 787 So.2d at 164 (“In attempting to ascertain whether the petitioner’s continuing fear is reasonable, for purposes of issuing injunction against domestic violence, the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.”). In this case, however, the trial court erroneously limited Wife’s presentation of evidence to events that occurred after December 13, 2011. As a result, it was virtually impossible for Wife to meet her burden. At best, the evidence presented showed Husband had attempted to contact Wife through his uncle and that Wife was afraid Husband would be angry due to the pending divorce.

Evidence that Husband had communicated -with the Wife through third parties is not enough, standing alone, to show a reasonable fear of continuing violence, particularly when the subject of the communications is reconciliation. See Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999) (holding that telephone calls to petitioner from former boyfriend failed to justify reasonable fear of imminent danger of becoming victim of domestic violence, despite parties’ history, when calls ceased at petitioner’s request). Even harassment of the wife through third parties would be insufficient to warrant the imposition or extension of an injunction. Giallanza, 787 So.2d at 164 (stating that indirect harassment of wife by husband, such as by making unfounded calls to HRS and false reports to sheriffs office, would not support finding of objectively reasonable fear of imminent danger due to domestic violence); see also § 741.28, Fla. Stat. (defining “domestic violence” to mean “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”).

A threat that Husband would kill Wife, rather than permit her to take his children away, would support a finding of a reasonable fear of continuing violence. At the hearing, Wife testified that such a threat was made by Husband to the children and thereafter communicated to her. The children did not testify. Inasmuch as Wife’s testimony contained hearsay not subject to an exception, this evidence could not be considered by the trial court to support extension of the injunction. See, e.g., Pittman v. State, 646 So.2d 167, 171-72 (Fla.1994) (holding witness’s testimony concerning what stepson had told him was inadmissible hearsay); see generally § 90.801(l)(c), Fla. Stat. (2009) (defining hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted”).

Because the current statute does not provide for the issuance of a series of temporary injunctions in lieu of a permanent injunction and because there was insufficient evidence presented at the hearing to support the issuance of a permanent injunction, we reverse. However, because Wife was never given a full hearing on her request for an injunction and was precluded from presenting evidence that would support issuance of an injunction at the hearing on the extension, we remand for a new hearing on a permanent injunction, at which the court can consider the totality of the circumstances, including any incidents occurring prior to December 13, 2011, in determining whether a permanent injunction should be entered. If, after consideration of the factors set forth in section 741.30(b)(6), Florida Statutes, the court determines that wife is either the victim of domestic violence as defined in section 741.28 or has reasonable cause to believe that she is in imminent danger of becoming the victim of any act of domestic violence, it should enter a permanent injunction in her favor, which will continue until modified or dissolved. The temporary ex parte injunction originally entered in this case shall remain in full force and effect pending a full hearing.

REVERSED and REMANDED.

EVANDER, J., concurs.

GRIFFIN, J., concurs in part, dissents in part, with opinion.

GRIFFIN, J.,

concurring in part; dissenting in part.

I agree that a permanent injunction is required, but I am unable to agree with the majority that the trial court’s basis for extending the injunction was legally insufficient. In addition to all the other evidence before the court concerning Husband’s prior conduct and prior statements, Wife testified that, after entry of the earlier injunction, she continued to be contacted by two of Husband’s uncles on numerous occasions. One of these uncles testified that he knew about the injunction, but, nevertheless, contacted Wife seven or eight times to try to get her to reconcile with Husband, and, on one occasion, he attempted to set up a meeting with Wife. The uncle admitted he was in contact with Husband during this time, but denied that Husband had put him up to contacting Wife. The trial court found that the uncle was not credible on this point and that there had been efforts by Husband to communicate with Wife through the uncle. The trial court found that there were circumstances that would justify Wife’s “reasonable continuing fear of domestic violence . Viewed in the context of the already-existing injunction and Husband’s previous violent conduct and threats, these efforts by the uncle on behalf of Husband suggest something more than mere offers of reconciliation. These communications demonstrate that Husband violated the injunction, that he was willing to continue to subvert the injunction, and that he was willing to lie under oath about what he had done.

      .Earlier statutes provided that injunctions were to be granted for a period not to exceed one year and contained an express provision that permitted petitioner to obtain an extension of an injunction. See § 741.30(6)(b), Fla. Stat. (“Any relief granted by the injunction shall be granted for a fixed period not to exceed 1 year, unless upon petition of the victim the court extends the injunction for successive fixed periods not to exceed 1 year-”). This provision was removed from the statutes in 1997. See Ch. 97-155, § 5 at 2976, Laws of Fla.

      . Wife’s petition detailed repeated acts of domestic violence. She alleged, in part, that Husband hit her, choked her, twisted her arms, pushed her head into a steering wheel, and beat their children repeatedly. She also alleged Husband threatened to push her down stairs, kill her, shoot her with one of his guns, and kidnap the children.

      . On December 13, 2011, the trial court entered two orders: an order of continuance and an order extending the temporary injunction. Both orders indicated the temporary injunction would expire on April 13, 2012, but neither set a date for final hearing.

      . The order extending the temporary injunction also relieved Husband of certain miscellaneous payments not at issue here, but failed to relieve him of the obligation to pay Wife’s telephone bill, which the court specifically agreed should be eliminated.

      . Husband is entitled, on remand, to entry of an order eliminating his obligation to pay wife’s telephone bills retroactive to the date of the prior order. As written the judgment fails to conform to the oral pronouncement.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Denver Ivan WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-177.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    Denver Ivan Wilson, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order dismissing his motion for post conviction relief filed August 21, 2012, in Case No. 04^1204-CFA, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., GRIFFIN and BERGER, JJ., concur.


text:
    William MERRILL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-174.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    William Merrill, Avon Park, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2012-000129-CFA, in the Circuit Court in and for Flagler County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, CJ., GRIFFIN and JACOBUS, JJ., concur.


author: GRIFFIN, J.

text:
    Gerodney LEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4690.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    Gerodney Lee, Orlando, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Gerodney Lee, seeks review of the trial court’s denial of his motion for reduction/modification/mitigation filed pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court’s exercise of discretion in a ruling on a motion for mitigation filed pursuant to rule 3.800(c) is not subject to review on appeal. See Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

APPEAL dismissed.

TORPY and EVANDER, JJ., concur.


text:
    Bryan C. DOUGLAS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4478.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    David A. Henson, David A. Henson, P.A., Brevard, North Carolina, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 59-2011-CF-003908-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, TORPY, and LAWSON, JJ., concur.


text:
    Noel Lopez ACEVEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4455.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    Noel Lopez Acevedo, Bristol, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Noel Acevedo [“Acevedo”] appeals the denial of his rule 3.850 motion for post-conviction relief.

In January 2011, Acevedo entered written pleas to:

No. 10-CF-1198 — Failure To Comply w/ Sex Offender Reporting Requirements
No. ll-CF-5 — Driving While License Cancelled/Suspended/Revoked (Habitual Offender)

He was sentenced to concurrent thirty-five month DOC terms. In the first case, he was sentenced as a sexual offender. He did not appeal.

In July 2012, he filed a rule 3.850 motion asserting ineffective assistance of trial counsel. Acevedo contended that his counsel misadvised him regarding the charge of “Failure To Comply with Sex Offender Reporting Requirements” and that, based on the misadvice, he entered into a plea to a crime “he could not have committed” because he was a juvenile when convicted. Relying on State v. Williams, 75 So.3d 481 (Fla. 1st DCA 2011), he contends that there was no reporting requirement under Florida law for a juvenile with his status. § 943.0435(l)(a), Fla. Stat. (2012). He has also filed a letter from the Florida Department of Law Enforcement informing him that they have reviewed his case and they have determined that he does not meet the criteria for registration.

The State concedes that the conviction for failing to comply with sex offender reporting requirements must be set aside. The State disputes, however, that trial counsel was ineffective because the First District’s Williams opinion was not decided until approximately eleven months after his plea and sentence. The State suggests that counsel could not have been ineffective for failing to anticipate a change in the law. In our view, Williams does not represent a change in the law, merely the application of the statute. We vacate the judgment and sentence on the count of failure to comply with sex offender reporting requirements and remand for resen-tencing, if appropriate.

Judgment and sentence VACATED and REMANDED.

ORFINGER, C.J. and COHEN, J., concur.


text:
    William B. LANGFORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4185.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    William B. Langford, Malone, pro se.
    Pamela Jo Bondi, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, William B. Langford, appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order denying Langford’s scoresheet error claim without comment. However, the trial court failed to address Langford’s other claim that he is being illegally detained for violating probation, as he claims that probation was not part of the sentence imposed at his 2004 resentencing hearing. The State concedes the record attachments do not demonstrate that probation was ordered. On remand, the trial court shall attach the record refuting Langford’s claim.

AFFIRMED in part, REVERSED in part; REMANDED.

PALMER, COHEN, and JACOBUS, JJ., concur.


text:
    Vilson H. TALES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1902.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Vilson H. Tales appeals his convictions and (time served) sentences for two counts of simple battery. Based upon the State’s concession that the dual battery convictions violate double jeopardy, we reverse with directions that the trial court vacate one of those convictions. No other issue merits discussion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

TORPY, LAWSON and BERGER, JJ„ concur.


text:
    Bradley PRUCHA, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1636.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    Bradley Prucha, Crestview, pro se.
    Pamela Jo Bond, Attorney General, Tallahassee, Wesley Heidt and Anthony J. Golden, Assistant Attorneys General, Day-tona Beach, for Appellee.
   PER CURIAM.

We affirm the denial of Appellant’s rule 3.850 motion in all respects except that the trial court should have afforded Appellant the opportunity to amend claims 3 and 4, which pertain to the contention that trial counsel failed to investigate and inform Appellant about the viability of a motion to suppress evidence. Inartful and legally insufficient as the claims might be, we cannot say that Appellant cannot state a legally sufficient claim. Spera v. State, 971 So.2d 754, 758 (Fla.2007).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORPY, EVANDER and BERGER, JJ., concur.


text:
    Damian Eugene LESLIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1303.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    Robert Wesley, Public Defender, and Jared M. Adelman, Assistant Public Defender, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Damian Eugene Leslie (defendant) appeals his judgment and sentences, arguing that the trial court erred in denying his motion to suppress contraband seized during a traffic stop. Determining that the police lacked reasonable suspicion to justify the stop, we reverse.

The defendant was charged with possession of cocaine and possession of 20 grams or less of marijuana. He filed a motion to suppress the contraband based on the claim that its discovery resulted from an unlawful seizure. Specifically, he argued that the police lacked reasonable suspicion to conduct a traffic stop of his vehicle. At the suppression hearing, a law enforcement officer testified that he saw the defendant’s vehicle driving toward him, and he noticed that the vehicle did not have a center rearview mirror. The officer believed that this absence of a mirror was a traffic violation and, therefore, waved down the vehicle. The defendant stopped the vehicle. When the officer went to talk to the defendant, he saw three baggies of marijuana on the defendant’s lap. This discovery ultimately led to the instant charges. The court denied the suppression motion. The defendant then pled nob contendere after reserving the right to appeal the denial of his dispositive motion to suppress.

The defendant contends that the trial court erred in denying his motion to suppress because the traffic stop was based on a mistake of law. We agree.

An officer’s mistake of law as to what constitutes a traffic violation cannot provide reasonable suspicion justifying a traffic stop. Hilton v. State, 961 So.2d 284, 298 (Fla.2007); State v. Wimberly, 988 So.2d 116, 119 n. 2 (Fla. 5th DCA 2008). Florida law requires a vehicle to have “a mirror so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of the motor vehicle.” § 316.294, Fla. Stat. (2011). This statute does not require a center rearview mirror if one or more side mirrors meet its requirement, so here, the officer’s belief to the contrary was a mistake of law. See U.S. v. Chanthasouxat, 342 F.3d 1271 (11th Cir.2003) (holding same regarding traffic stop for lack of rearview mirror based on substantially identical Alabama statute).

REVERSED and REMANDED.

PALMER, LAWSON and COHEN, JJ., concur.

      . See § 893.13(6)(a)-(b), Fla. Stat. (2011).

      . The trial court agreed that the officer made a mistake of law, but nevertheless denied the motion to suppress on the basis that the absence of a center mirror could have been caused by adhesive failure, which might have suggested similar failure of adhesive holding the side mirrors (which the officer could not see from his vantage point). We reject this logic as both unsupported by any evidence at the hearing and too tenuous to support reasonable suspicion.


text:
    STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES, Appellant, v. PETER R. BROWN CONSTRUCTION, INC., Appellee.
    No. 1D12-3426.
    District Court of Appeal of Florida, First District.
    March 1, 2013.

      Jacek P. Stramski and Michael H. Davidson, Tallahassee, for Appellant.
    Marie Tomassi, Robert H. Buesing and Gregg E. Hutt of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Appellee.
   PER CURIAM.

Appellant challenges a final agency decision determining that Florida Administrative Code Rule 69140.103 is an invalid exercise of delegated legislative authority in violation of section 120.51(8)(b), & (d), Florida Statutes. We affirm.

Appellee was the general contractor for construction of the First District Court of Appeal building under a contract with the Department of Management Services (“the Department”). Pursuant to a change order, Appellee subcontracted with Signature Art Gallery (“Signature”) for acquisition, fabrication, preparation, and installation of all artwork in the courthouse. The subcontract price was $857,500, but the change order included an additional amount for Appellee’s management and supervision services. Signature completed the work and billed Appellee who submitted invoices for payment to the Department. In turn, the Department submitted payment requests to Appellant. Appellant made partial payment but denied the remainder, contending that the amount billed by Signature exceeded the statutory limit of $100,000 for art in public buildings, pursuant to section 255.043, Florida Statutes (2012). The Department resubmitted the invoice for payment. Appellant again denied payment of the remaining Signature invoices, stating, inter alia, that rule 691-40.103(6) prohibited expenditures of state funds for decorative items such as framed photographs. Rule 691 — 40.103 provides:

691-40.103. Restriction of Expenditures. Expenditures from state funds for items as listed below are prohibited unless “expressly provided by law.” (See Attorney General opinion 71-28):
(1) Congratulatory telegrams;
(2) Flowers and/or telegraphic condolences;
(3) Presentment of plaques for outstanding service;
(4) Entertainment for visiting dignitaries;
(5) Refreshments such as coffee and doughnuts; and
(6) Decorative items (globes, statues, potted plants, picture frames, etc.).

Signature, thereafter, filed suit for payment in the Leon County Circuit Court (case no. 2011-CA-001706) against Appel-lee, the Department, and Appellant. Appellant raised rule 691^10.103 as an affirmative defense to Signature’s claims. While Signature’s lawsuit was pending, Appellee filed an administrative challenge to rule 691-40.103. Appellee alleged that the rule was an invalid exercise of delegated legislative authority pursuant to section 120.52(8), Florida Statutes. Appellant sought dismissal of the rule challenge on the basis that Appellee lacked standing. The administrative law judge (“ALJ”) disagreed and denied the motion to dismiss. After considering the submissions of the parties, the ALJ entered a final order in favor of Appellee. The ALJ determined that “rule 691-40.103 constitutes an invalid exercise of delegated legislative authority in violation of subsection 120.52(8)(b) and (d).”

Appellant asserts as its threshold issue that Appellee lacked standing to initiate the rule challenge. We disagree. Section 120.56(l)(a), Florida Statutes (2012), provides that “[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.” We agree with the ALJ’s reasoning that Appellee has established standing under the statute. It was directly affected by the application of the rule in that its payment request, which included its overhead and supervision fee, was denied, in part, based on Appellant’s interpretation and reliance on the rule. See Lanoue v. Fla. Dep’t of Law Enf., 751 So.2d 94, 98-99 (Fla. 1st DCA 1999) (holding that ALJ erred in determining party lacked standing).

Addressing the merits, we conclude that the ALJ was correct in her conclusion that the rule impermissibly exceeded the authority granted under the enabling statute. An agency may only adopt rules that implement or interpret specific powers and duties granted by an enabling statute. Without an explicit power or duty identified in the enabling statute, the rule is an invalid exercise of delegated legislative authority. Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 599 (Fla. 1st DCA 2000); see also § 120.52(17), Florida Statutes (2012) (defining “rulemaking authority”).

Section 120.52(8), Florida Statutes (2012), defines “invalid exercise of delegated legislative authority,” in pertinent part, as

action that goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)l.;
(d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.

Rule 691-40.103 prohibits expenditures from state funds, unless expressly provided by law, for enumerated items, including “(6) Decorative items (globes, statues, potted plants, picture frames, etc.).” According to the rule, it was adopted in 1975, amended in 1995, and was created under the authority of section 17.29, Florida Statutes, which provides:

17.29. Authority to prescribe rules.— The Chief Financial Officer may adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this chapter and the duties assigned by statute or the State Constitution. Such rules may include, but are not limited to, the following: (1) Procedures or policies relating to the processing of payments from salaries, other personal services, or any other applicable appropriation.
(2) Procedures for processing inter-agency and intraagency payments that do not require the issuance of a state warrant.
(3) Procedures or policies requiring that payments made by the state for goods, services, or anything of value be made by electronic means, including, but not limited to, debit cards, credit cards, or electronic funds transfers.
(4) A method that reasonably accommodates persons who, because of technological, financial, or other hardship, may not be able to receive payments by electronic means. The Chief Financial Officer may make payments by state warrant if deemed administratively necessary.

The ALJ concluded that rule 691-40.103 was an invalid exercise of the Chief Financial Officer’s (the “CFO”) rulemaking authority because it was not specifically authorized by its enabling statute, section 17.29, Florida Statutes (2012). The ALJ reasoned that while section 17.29 conferred broad powers and duties on the CFO to process day-to-day payments, it did not explicitly authorize the CFO to restrict expenditures. With respect to each of the subsections in section 17.29, the ALJ stated that

section 17.29(1) specifically authorizes the CFO only to process expenditures, not to prohibit them. Section 17.29(2) only relates to procedures for processing interagency and interagency [sic] payments, which is not related to the challenged rule. Additionally, subsections 17.29(3) and (4), deal with electronic means for payments, which are not issues relating to what is reimbursable as an expenditure.

The ALJ concluded that “there is simply no language within the text of section 17.29 which suggests that the CFO is authorized to adopt rules restricting expenditures. Therefore, rule 691^10.103 does not implement or interpret any specific power or duty granted by section 17.29.” We agree with the ALJ’s interpretation of section 17.29 and her conclusion on this point.

In addition to listing section 17.29 as its specific authority, rule 691-40.103 also lists sections 17.001,17.03, and 215.42, Florida Statutes, as “law implemented.” Section 120.52(2), Florida Statutes (2012), defines “law implemented,” as “the language of the enabling statute being carried out or interpreted by an agency through rulemaking.” As it did below, Appellant also contends that section 17.29(1) and 17.03(1) together provide sufficient authority for the rule. The ALJ rejected Appellant’s argument that she should look to both section 17.29 and section 17.03 to find authority for the rule. Citing Department of Children & Family Services v. I.B., 891 So.2d 1168, 1172 (Fla. 1st DCA 2005), the ALJ determined that Appellant could only rely on statutory provisions cited by the rule as “specific authority.” The rule cites section 17.03 as a “law implemented” and not as “specific authority.” The ALJ determined that this did not confer authority for the rule.

Even were we to consider both statutes together, we nevertheless reach the same result. By its language, section 17.03(1) merely requires that the CFO examine, audit, and settle all claims against the state. It does not provide or explicitly allow the CFO to restrict an agency’s expenditures for particular categories of items unless such items are “expressly” authorized. The CFO has no authority to supervise the operation of other state officers or state agencies in the exercise of the discretion vested in them by law. Fla. Dev. Comm’n v. Dickinson, 229 So.2d 6, 8 (Fla. 1st DCA 1969). We accordingly conclude that section 17.03(1), whether separately considered or in combination with section 17.29, does not provide a specific grant of legislative authority for rule 691-40.103.

The ALJ also found rule 691-40.108(6) invalid as too vague and subject to inconsistent application. An administrative rule is invalid under section 120.52(8)(d), Florida Statutes, if it forbids or requires the performance of an act in terms that are so vague that persons of common intelligence must guess at its meaning and differ as to its application. Bouters v. State, 659 So.2d 235, 238 (Fla.1995); Sw. Fla. Water Mgmt. Dist. v. Charlotte Cnty., 774 So.2d 903, 915 (Fla. 2d DCA 2001). Generally, where words or phrases are not defined, they must be given their common and ordinary meaning. Sw. Fla. Water Mgmt. Dist., 774 So.2d at 915. “[T]he plain and ordinary meaning of [a] word can be ascertained by reference to a dictionary.” Green v. State, 604 So.2d 471, 473 (Fla.1992). The ALJ made the following findings with respect to vagueness:

33. Even though rule 691-40.103(6) provides examples of “globes, statues, potted plants, picture frames, etc.” as set forth in paragraph 16 above, subpart (6) is still vague because no qualifying language is available as a standard to determine what items are covered and what items are not based on the examples. A wide range of things can be considered and different people can guess at its meaning or come up with various interpretations for “decorative items.”
34. [Appellant’s] contention that Signature’s contract for “framed pictures” falls within the interpretation of rule 691^40.103(6) is not persuasive. First, it is important to note that [Appellant] does not use the terminology in the rule, “picture frames,” in its argument but transposes the phraseology to “framed pictures,” which has a different common interpretation.... [Contrary to [Appellant’s] argument, even “picture frames” in the example portion of the rule plainly means something different from “framed pictures.”
35. Additionally, the subcontract between [Appellee] and Signature was also for the reproduction and permanent installation of historical photographic images. [The Department’s] approval of the subcontract payment and [Appellant’]s contrary denial of the payment, both of which decisions were taken in reliance of rule 691^40.103, shows that the restricted items are not clearly defined. If the definition were clear, both agencies would have reached the same conclusion. Additionally, had the rule provided a specific standard then no differing interpretations could be made when deciding the meaning of “decorative item.”
36. The undersigned also finds that by the challenged rule listing “etcetera” in the example portion, no adequate standards are established for [Appellant] to make a decision about “decorative items.”
37. Therefore, since there are no sufficient explicit standards for applying rule 691 — 40.103(6), the challenged rule is subject to inconsistent application and leaves [Appellant] with unbridled discretion. Consequently, rule 691-40.103(6) is vague and an invalid exercise of delegated legislative authority in violation of section 120.52(8)(d).

We agree with the ALJ’s conclusions on this point.

AFFIRMED.

TORPY, V., LAWSON, C., and BERGER, W., Associate Judges, concur.

      . By order of the Chief Justice of the Florida Supreme Court, the judges of the Fifth District Court of Appeal were appointed temporary judges of the First District to determine this case.

      . Section 255.043(1) provides that each appropriation for original construction of a state building with public access “shall include an amount of up to 0.5 percent of the total appropriation for the construction of the building, not to exceed $100,000, to be used for the acquisition of works of art,” which must be displayed in public areas of the building.


author: HARRIS, C.M., Senior Judge.

text:
    STATE of Florida, Appellant, v. Kwmane Montrell WINTER, Appellee.
    No. 5D12-86.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellee.
   HARRIS, C.M., Senior Judge.

Kwmane Winter rode past a parked, unmarked police vehicle on his bicycle and upon hearing “excuse me, sir, can I talk to you?” jumped off his bicycle and took off running. After a chase, Winter was caught and charged with armed resisting an officer with violence, possession of a weapon by a convicted felon, carrying a concealed firearm, and battery on a law enforcement officer. He moved to suppress the evidence, alleging that he was stopped without a reasonable suspicion and the search was conducted without probable cause. The court granted the motion and the State appeals.

There was a disagreement as to whether Winter knew that his pursuers were police officers but that issue is rendered moot by the court’s finding that the chase was not shown to have been in a high-crime area. The trial judge found, and the State agreed, that Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), justifies such a stop only when the fleeing occurs in a high-crime area. See also C.E.L. v. State, 24 So.3d 1181 (Fla.2009). The issue before us is whether the trial court erred in finding that the State failed to prove that the area in which this flight occurred was a high-crime area.

The testimony in this regard was that the area was a high-crime area “based on the multiple, multiple calls for service for crime and violent crime in that area” and that the officers were in the area at the time of the incident because of the “recent spike in the report of violent crimes in that area.” There were no specifics given as to the number or types of crimes or where, within this quite large area designated as a high-crime area, the crimes occurred. While “empirical studies or statistical data” may not be required. See D.R. v. State, 941 So.2d 536 (Fla. 2d DCA 2006), vague testimony such as “there being multiple narcotic complaints that go on out there” would not establish a high-crime area. The testimony failed to convince the trial judge that the stop was justified and the record does not justify substituting our own fact-finding for that of the trial court.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


text:
    Sandra D. MADDOX, etc., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-54.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, C.M., Senior Judge.

In a prior dissolution action, the former wife, defendant below, was given primary custody of the children subject to specifically scheduled visitation for the father. Defendant was to deliver the children to the father at a particular CVS pharmacy, but when she did not deliver the children for an extended period of time the father petitioned for contempt and enforcement of the court visitation order, and the trial court issued an order to show cause why the defendant should not be held in indirect criminal contempt for ignoring the court order.

At the contempt hearing, the father testified that he appeared at the CVS pharmacy to exchange the children on several occasions but the defendant did not appear. The father offered CVS date and time-stamped receipts to prove he was at the store at the appropriate time. The admission of these receipts was objected to by the defendant. Even though the court found that the receipts were not authenticated as business records, they were admitted into evidence. In her testimony, the defendant admitted she did not deliver the children to the father at the CVS pharmacy on the dates reflected in the receipts. The court found that defendant violated the court order and immediately proceeded to sentencing. The court withheld adjudication but placed defendant on six months of supervised probation and imposed a fine and court costs.

The first issue on appeal is whether the court erred in not providing defendant an opportunity, prior to sentencing, to present mitigating evidence. The State concedes error and the matter must be reversed for resentencing. As to the second assigned error-that the court should not have admitted the receipts into evidence-the State again concedes error but urges such error to be harmless. We agree. Because the defendant admitted that she did not deliver the children on those specific occasions, the fact that the receipts show the father was at the pharmacy awaiting his children’s arrival is harmless.

The conviction is AFFIRMED; the sentence is REVERSED and the action is REMANDED for resentencing.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

GRIFFIN and TORPY, JJ., concur.


author: PALMER, J.

text:
    Allihondra MOODY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3765.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt and Douglas T. Squire, Assistant Attorneys General, Daytona Beach, for Appellee.
   PALMER, J.

Allihondra Clarance Moody (defendant) appeals his convictions arising from a jury trial on several counts and a subsequent bench trial on the remaining count. We affirm as to the bench-tried count without comment. We write to explain why we decline to address the defendant’s argument as to the counts tried by a jury, as the appeal is untimely as to those counts.

The defendant was charged with five counts, the fourth of which was possession of a firearm by a convicted felon. Count 4 was severed for trial, and the defendant was first tried before a jury on counts 1, 2, 3, and 5. The jury found him guilty either as charged or of a lesser included offense on each count. On August 26, 2011, the trial court rendered orders adjudicating the defendant guilty and sentencing him on counts 1, 2, and 5. The court deemed count 3 subsumed into count 1. The defendant timely filed a motion for new trial. On September 15, the court rendered an order denying the motion. On September 28, the court held a bench trial on count 4. The court found the defendant guilty and, on the same day, rendered an order sentencing him. The defendant timely filed a motion for new trial on count 4. On November 3, the defendant filed a notice of appeal as to all counts. On December 14, the court filed a corrected sentencing order on counts 1, 2, and 5, reflecting corrected minimum mandatory prison terms.

On appeal, the defendant argues that the trial court erred by refusing to allow a read-back of testimony to the jury in the trial on counts 1, 2, and 5. However, the defendant’s notice of appeal was untimely as to those counts.

A notice of appeal must be filed within 30 days of rendition of the sentencing order. Fla. R.App. P. 9.140(b)(3) (2011). Where a sentencing order is rendered on one or more counts, the judgment on those counts is final for purposes of appeal, and the time for filing a notice of appeal runs from the rendition of the sentencing order, regardless of whether other counts remain pending. Jones v. State, 78 So.3d 706 (Fla. 1st DCA 2012).

Here, the sentencing order on counts 1, 2, and 5 was rendered on August 26, 2011. The defendant timely filed a motion for new trial, which suspended rendition of the sentencing order until an order disposing of the motion was rendered. Fla. R.App. P. 9.020(h)(1). The order denying the motion was rendered on September 15. Thus, the 30-day appeal clock began then and expired on Monday, October 17. The defendant filed his notice of appeal on November 3.

The December 14 corrected sentencing order did not affect the appeal clock as to the issue the defendant raises on appeal. Where an appeal is untimely as to an original order, but timely as to an amended order, the appellate court has jurisdiction only over issues that arise out of the amended aspect of the order. See Wetherington v. Minch, 637 So.2d 967 (Fla. 5th DCA 1994). Here, the sentencing order was amended to correct minimum mandatory terms, a matter unrelated to the defendant’s jury read-back issue. Accordingly, we decline to address the defendant’s argument as to counts 1, 2, and 5. Jones, 78 So.3d at 709.

AFFIRMED.

SAWAYA and LAWSON, JJ„ concur.


text:
    Dwight BRUNOEHLER as Shareholder, etc., Appellant, v. Alan BURGER, McDonald Hopkins, et al., Appellees.
    No. 5D11-3194.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    Patrick A. McGee of McGee & Powers, P.A., Orlando, for Appellant.

      Phillip M. Hudson, III, and Andrea Cox of Arnstein & Lehr, LLP, Miami, and Bruce Blackwell of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Appellees.
   HARRIS, C.M., Senior Judge.

This lingering litigation came to a head when one of the attorneys of record elected to withdraw. Appellant’s action was originally filed by a California attorney unauthorized to practice in Florida but who had appropriate Florida counsel to assist. The problem arose when the Florida attorney became frustrated with the pace of litigation and moved to withdraw.

The Florida attorney, the California attorney, and the defense attorney entered into a stipulation agreeing to the withdrawal, but stipulating that the Florida attorney would be replaced and a third amended complaint would be filed within thirty days of the order approving the stipulation. It was also agreed that if the complaint was not timely filed, the action would be dismissed with prejudice.

A copy of the order was sent to an outdated address for the California attorney and he did not get his copy until five days before the thirty days had run. The California attorney filed for an extension of time and attached a copy of a proposed third amended complaint. The defense objected to the extension and moved to strike Appellant’s application urging, among other things, that since there was no Florida attorney in the case, the pleading was a nullity. The court struck the application, finding it was “filed by a non-Florida lawyer in violation of the rules and this Court’s order and is thus a nullity.” The court then dismissed the action with prejudice. This appeal follows.

Appellant, through new Florida counsel, points out two problems with the trial court’s dismissal. First, the record does not reflect that Appellant was ever notified by either of his attorneys about the withdrawal. Second, there is no indication that the court’s order permitting the withdrawal was provided to Appellant.

In a somewhat similar case, the Florida Supreme Court emphasized that the unwary litigant should be protected:

[W]e believe that the policy of allowing cases to be decided on the merits whenever possible and the protection of litigants from the dangers associated with the unlicensed practice of law are best served by a rule of law that allows amendments of these defective pleadings without requiring the establishment of excusable neglect.

Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040, 1041-42 (Fla.2000).

Although this case has proceeded very slowly during its lengthy stay in the system, it does not appear to be the fault of Appellant. Torrey requires that the court grant the amendment and allow the parties to proceed to trial on the merits.

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.

      . The action had been filed in October 2008, and a sustainable complaint had not yet been filed as of the time the action was dismissed in August 2011.

      . It does not appear that the attorney had provided an updated address to the court.


text:
    Kenneth Ched BOUIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2428.
    District Court of Appeal of Florida, Fifth District.
    March 1, 2013.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   HARRIS, C.M., Senior Judge.

A gathering of people near the entrance of a trailer occupied by Matthew Feill turned violent. Among those present were Angel Santos, the victim herein, and Kenneth Ched Bouie, the appellant. During the argument, appellant waved a large “stick” in a circle and said to Santos, “I’m a bury you.” Appellant withdrew a sword from what had appeared to be the stick and hit Santos, cutting his side and causing considerable bleeding. Appellant was convicted of felony battery (based on the sword strike) and aggravated assault with a deadly weapon (based on twirling the large “stick” and making threats), and was sentenced to two consecutive five-year sentences.

Appellant appeals only the aggravated assault conviction, claiming “there was insufficient evidence that he made an intentional, unlawful threat by word or act to do violence to another person or that he did some act which created a well-founded fear in that particular person that such violence was imminent.”

Santos testified that appellant grabbed what appeared to be a stick, started twirling it and walking around, and “started walking toward us.” The way he looked, said Santos, he wanted to do something with the stick. He further testified that appellant said “I’m a bury you,” and continued twirling the stick. Santos told appellant that the stick twirling made him nervous. He testified that he was afraid appellant might hit him from behind.

Feill testified that appellant was pacing back and forth and was shouting. He had what appeared to be a stick and was spinning it around. Appellant was approaching Feill and Santos violently and saying, “I’m going to bury you,” and then lunged forward and stabbed Santos.

This record testimony is sufficient to sustain the conviction for aggravated assault with a deadly weapon.

AFFIRMED.

TORPY and EVANDER, JJ, concur.


author: JACOBUS, J.

text:
    Kevin Anthony DYBALSKI, Appellant, v. Angela Lynne DYBALSKI, Appellee.
    No. 5D12-557.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.
    Kevin A. Dybalski, Jacksonville, pro se.
    No Appearance for Appellee.
   JACOBUS, J.

Kevin Dybalski, the former husband (“husband”), appeals an order awarding attorney’s fees to Angela Lynne Dybalski, his former wife (“wife”). We reverse the award because we find that husband’s conduct was not sufficiently vexatious to justify an award of fees.

Husband is a former broker who is currently employed as a police officer, while wife works for St. Johns County as an office assistant. This is the parties’ third appearance in this Court relative to the dissolution of their marriage. They originally divorced on February 6, 2009, pursuant to a final consent judgment which disposed of many of the issues related to their thirteen-year marriage, including custody and visitation issues relating to their minor children. A supplemental final judgment was entered that dealt with the outstanding issues, including the equitable distribution of the parties’ property. Husband appealed, and this Court reversed and remanded for reconsideration because of the lack of findings sufficient to justify an inequitable distribution of the marital home and an income-producing loan related to the home. See Dybalski v. Dybalski, 52 So.3d 825 (Fla. 5th DCA 2011). On remand, the court redistributed the property, achieving a roughly fifty/fifty split of the parties’ assets, but gave wife credit for her one-half of $40,000 husband received upon selling the income-producing loan. Husband did not appeal the award but, acting pro se, did appeal an order requiring him to pay wife $5,000 for attorney’s fees she had incurred in the first appeal. The fee award was affirmed per curiam on May 15, 2012. See Dybalski v. Dybalski, 91 So.3d 151 (Fla. 5th DCA 2012).

The current appeal concerns attorney’s fees awarded to wife in connection with a number of post-dissolution motions filed by husband. Husband filed a “supplemental” petition to modify the final consent judgment on July 30, 2010, in which he sought to obtain custody of the parties’ children. Husband also filed a motion for contempt and for enforcement of the final consent judgment. On May 11, 2011, the lower court denied wife’s motion to dismiss the petition for modification but observed that the motion was likely stale due to a stay while the case was on appeal.

On May 11, 2011, husband’s motions were referred to a magistrate for a hearing to be held September 22, 2011. Immediately prior to the hearing, the magistrate denied husband’s motion for a continuance to ascertain the effect testifying would have upon one of his children. Upon the denial of his motion, husband opted to dismiss all three motions set for hearing before the magistrate. On September 30, 2011, wife then moved to be awarded $5,200 in attorney’s fees incurred while defending husband’s motion for modification. No grounds for a fee award were alleged in the motion other than that husband had withdrawn his pending motion.

In an order dated January 13, 2012, the trial court awarded wife $5,200 in attorney’s fees for her defense of the petition for modification. The basis of the award was husband’s withdrawal of the petition for modification, which the court implied showed that he was acting in “bad faith.” The court explained that the withdrawal of the petition was a “de facto voluntary dismissal” but that husband had nonetheless said he might again call up the petition for hearing at some later date. The court found that this “whip sawing” of wife was “unwarranted and unconscionable under the circumstances.” The only finding on the issue of need and ability to pay was that husband was being represented in the trial court by private counsel, he had appealed the earlier attorney’s fee award acting pro se, and he owned a motorcycle valued at over $9,000.

Husband moved for rehearing, arguing the evidence would not support a finding that the petition was frivolous or that he had an ability to pay. He averred that he had previously sold the motorcycle listed on his financial affidavit, his attorney had not been paid, and the $9,350 shown on the affidavit was attributable to his only vehicle. He also contended that he had just been informed of a cut in benefits and pay, but the lower court summarily denied the motion. Husband has now appealed the order awarding attorney’s fees to wife, who has not responded to the appeal.

Attorney’s fee awards in dissolution cases are governed by section 61.16, Florida Statutes, which directs the trial court to consider “the relative financial resources of the parties” in evaluating whether a fee award is appropriate. In doing so, “the trial court must look to each spouse’s need for suit money versus each spouse’s respective ability to pay.” Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). A trial court may also consider “any factor necessary to provide justice and ensure equity between the parties.” Id. at 700. These secondary factors include:

the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.

Id. This Court reviews a fee award for an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Karpovich v. Karpovich, 739 So.2d 137 (Fla. 5th DCA 1999).

Generally, it is an abuse of discretion to award attorney’s fees if the dissolution decree leaves both parties in equal financial positions. Rashid v. Rashid, 35 So.3d 992, 995 (Fla. 5th DCA 2010). However, as this Court explained in Elliott v. Elliott, 867 So.2d 1198 (Fla. 5th DCA 2004), conduct which causes the opposing party to unreasonably incur fees will support a fee award:

Rosen has been interpreted as authorizing an award of attorney’s fees against a spouse for “over litigation,” Zanone v. Clause, 848 So.2d 1268 (Fla. 5th DCA 2003), persisting in litigation when there is “no reasonable prospect of success,” Diaz v. Diaz, 727 So.2d 954 (Fla. 3d DCA 1998), quashed on other grounds, 826 So.2d 229 (Fla.2002), or where the party has engaged in “vexatious and frivolous litigation,” Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999). See also, Dake v. Kirkley, 767 So.2d 1289 (Fla. 5th DCA 2000) (attorney’s fees recoverable under Rosen for improper conduct which causes extensive litigation).

Id. at 1201. Specific findings are required to support such an award. Rashid, 35 So.3d at 995; Elliott, 867 So.2d at 1202.

We have carefully reviewed the record and conclude that there is no evidence that husband engaged in unnecessary or vexatious litigation. The only finding made by the trial court relative to this issue was that husband had withdrawn the petition, which the court equated with a voluntary dismissal. This is insufficient, standing alone, to show bad faith or other vexatious conduct. Hustad v. Architectural Studio, Inc., 958 So.2d 569, 570 (Fla. 4th DCA 2007); Arenas v. City of Coleman, 791 So.2d 1234, 1235 (Fla. 5th DCA 2001). Moreover, the claims contained in the motions do not appear frivolous, and husband offered a valid excuse for his withdrawal of the motion. There is also no evidence that the petitions were filed for purposes of harassment. Given the lack of any evidence to support the award of attorney’s fees and costs to wife, we reverse the judgment. See Caryi v. Caryi, 83 So.3d 960 (Fla. 5th DCA 2012).

REVERSED and REMANDED.

GRIFFIN and LAWSON, JJ., concur.


author: COHEN, J,

text:
    Dale B. GREEN, Appellant, v. PALATKA DAILY NEWS, Appellee.
    No. 5D12-3008.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.
    Dale B. Green, Bristol, pro se.
    James L. Padgett, Palatka, for Appellee.
   COHEN, J,

Dale Green appeals the dismissal of his complaint which averred that the Palatka Daily News published false and defamatory statements concerning his conviction relating to a 2008 arson. The article noted that Green was convicted by jury and sentenced, as a prison releasee reoffender, to thirty years in the Department of Corrections for arson, resisting an officer with violence, and injuring a police dog. In providing details of the crime, the paper reported that a witness observed Green set a chair on fire outside a home occupied by Green’s ex-girlfriend and her son, causing the building to ignite. The article recounted how a witness banged on the door of the home to awaken its sleeping occupants and that Green was tracked down by police dogs.

The complaint was not well-drafted. It alleges both October 16, 2009, and October 16, 2008, as the date on which the article was published. The 2009 date appears to be the accurate one, and for purposes of the issue presented — the running of the statute of limitations — it reflects the best case scenario for Green.

In the complaint, Green alleged that the article incorrectly related that he had been convicted by a jury of arson, resisting an officer with violence, and injuring a police dog. Green was actually convicted of “only” the arson charge, the State having dropped the other charges before trial. Green took particular offense to the injuring a police dog charge, discussing the public outrage over “Meavick,” an apparent reference to the animal abuse charges brought against Michael Vick, a professional football player. Indeed, in response to Green’s notice to the newspaper, pursuant to section 770.01, Florida Statutes (2011), the Palatka Daily News retracted that portion of the article, clarifying that Green had been convicted of only arson.

Other than the error as to the charges for which Green was convicted, most of Green’s complaints are semantic. For example, he alleges that he was not tracked by dogs; rather, he was in plain sight and only one dog was used. Green maintains, and supplies a copy of the prosecutor’s opening statement as support, that the witness did not see him set the chair on fire, but rather saw him running from the scene.

Dismissal of the complaint focused not upon whether the allegations of the complaint constituted defamation, but rather whether the complaint was filed within the applicable statute of limitations. Section 95.11(4)(g), Florida Statutes (2011), provides for a two-year limitations period for defamation actions. The statute of limitations is an affirmative defense and can only be raised in a motion to dismiss if the applicability of the defense is clear from the face of the complaint. See Simon v. Celebration Co., 883 So.2d 826, 831 (Fla. 5th DCA 2004).

We agree with the trial court that, on its face, the suit is subject to dismissal based upon the statute of limitations. Suit was filed December 20, 2011. Green had until October 16, 2011, to bring a defamation claim and failed to do so. Accordingly, we affirm.

AFFIRMED.

GRIFFIN and BERGER, JJ., concur.


text:
    L & H CONSTRUCTION, ETC., Appellant, v. CIRCLE REDMONT, INC., A Florida Corporation, Appellee.
    No. 5D12-1447.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.
    Melinda S. Gentile, of Peckar & Abram-son, P.C., Miami, and Charles F. Kenny, of Peckar & Abramson, P.C., River Edge, New Jersey, for Appellant.
    Allan P. Whitehead and Erika McBryde, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellee.
   PER CURIAM.

L & H Construction Company, Inc. (“L & H”) appeals the Order Granting Defendant’s Motion for New Trial rendered by the trial court. This is the second time that this breach of contract case has come before this court. In L & H Construction Co., Inc. v. Circle Redmont, Inc., 55 So.3d 630 (Fla. 5th DCA 2011), this court held that “[t]he record does not establish the basis of a breach of contract” and noted that “[t]he trial court made no findings, and the record does not reflect, that any delay was occasioned by L & H’s conduct.” Id. at 636. This court reversed the final judgment rendered following a non-jury trial, which had found L & H to be in breach of contract. Id. Conspicuously absent from this court’s opinion are directions remanding this case to the trial court. Id. If this court had intended to remand this case for a new trial, we clearly would have said so and we did not. Therefore, the trial court erred in ordering a new trial. Accordingly, the Order under review is reversed.

REVERSED.

ORFINGER, C.J., SAWAYA and COHEN, JJ., concur.


text:
    T.W. TIFT, Jr., Appellant/Cross-Appellee, v. SAN SEBASTIAN HARBOR PROJECT, LLC, et al., Appellee/Cross-Appellant.
    No. 5D11-2471.
    District Court of Appeal of Florida, Fifth District.
    March 8, 2013.
    Matthew G. Mercer, of Mercer Law, P.A., St. Augustine, for Appellant/Cross Appellee.
    Larry T. Griggs, of Larry T. Griggs, Attorney at Law, P.A., St. Augustine, for Appellee/Cross-Appellant.
   PER CURIAM.

T.W. Tift, Jr., (“Mr.Tift”), timely appeals an amended final judgment which found that plaintiffs below, Mr. Tift and Sebastian Harbor Villas Condominium Owners’ Association, Inc., (“Association”), did not have a deeded easement, nor a prescriptive easement, to cross the property of San Sebastian Harbor Project, LLC, (“San Sebastian”), defendant below, for access to the traffic light at the intersection of U.S. 1 and State Road 207 in St. Augustine, Florida, and which further quieted San Sebastian’s title in its property against the claims of Plaintiffs except for rights to a granted easement to access U.S. 1 (described by the parties and the court as the “Corrected East/West Easement”) and an easement to a lift station located near the center of San Sebastian’s property (described as the “North/South Easement”). San Sebastian cross-appeals the trial court’s ruling that Plaintiffs have any right to use the North/South Easement. We affirm as to the issues raised by Mr. Tift without further comment. However, we reverse that part of the amended final judgment finding that Mr. Tift and the Association have a right, title or interest in the North/South Easement. As argued by San Sebastian, neither Mr. Tift nor the Association proved any prescriptive right to use the North/South Easement, nor was the North/South Easement within Plaintiffs’ chain of title.

AFFIRMED IN PART; REVERSED IN PART.

TORPY, LAWSON and BERGER, JJ., concur.


text:
    Adam Dwayne GUILLORY, et ux. v. CONSTANZA FARMS, INC., et al.
    No. 2012-C-2640.
    Supreme Court of Louisiana.
    Feb. 22, 2013.
   PER CURIAM.

|,The rulings of the lower courts granting plaintiffs motion for summary judgment are vacated; plaintiffs motion for summary judgment is denied as genuine issues of material fact exist. La. C.C.P. Art. 966. The matter is remanded to the trial court for further proceedings pursuant to this Order.

WRIT GRANTED; REVERSED; REMANDED.

JOHNSON, C.J., and KNOLL and CLARK, JJ., dissent and would deny the application.


text:
    In re Robert L. BARRIOS.
    No. 2012-B-2705.
    Supreme Court of Louisiana.
    March 1, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert L. Barrios, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. After being admitted to the practice of law in Louisiana in 1977, respondent’s first disciplinary infraction occurred in October 1984, when he was privately reprimanded by the Committee on Professional Responsibility for neglecting a legal matter. In November 1984, he was privately reprimanded for neglecting a legal matter and failing to communicate with a client. In June 1989, respondent was privately reprimanded for failing to cooperate in a disciplinary investigation. In March 1993, he was admonished by the disciplinary board for neglecting a legal matter, failing to communicate with a chent, failing to promptly refund an unearned fee, and failing to cooperate with the ODC in an investigation. Later that year, he was twice admonished by the board for failing to cooperate with the ODC in its investigations.

In April 2006, this court suspended respondent from the practice of law for two years for engaging in a pattern of misconduct involving the neglect of legal matters, failure to communicate with clients, failure to account for and timely | ¿refund unearned fees, and failure to cooperate with the ODC in its investigation. In re: Barnos, 05-1982 (La.4/17/06), 929 So.2d 63 (“Barrios I ”). In November 2008, we disbarred respondent for nearly identical misconduct. In re: Barrios, 08-1679 (La.11/10/08), 993 So.2d 1200 (“Barrios II”). In February 2011, we adjudged respondent guilty of identical misconduct and extended by two years the minimum time period in which he can apply for readmission. In re: Barrios, 10-2582 (La.2/4/11), 54 So.3d 649 (“Barrios III”). Respondent remains disbarred from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

FORMAL CHARGES

In October 2010, the ODC received a complaint from Rosaline Martin alleging that in 2000 or 2002, she hired respondent to represent her in a civil action against her son for injuries she sustained following an argument with him. Pursuant to the representation, Ms. Martin paid respondent $2,500, which she borrowed from a friend. A few days after hiring respondent, Ms. Martin decided to drop the suit. She informed respondent of her decision and requested a refund. In response, respondent advised that he would contact her once he calculated how much she owed him. When respondent failed to contact Ms. Martin, she attempted to contact him for the next two years, to no avail. Respondent failed to cooperate with the ODC in its investigation of the complaint filed against him by Ms. Martin.

DISCIPLINARY PROCEEDINGS

In November 2011, the ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and 1 spromptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee adopted the deemed admitted factual allegations of the formal charges as its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee did not discuss the factors listed in Supreme Court Rule XIX, § 10(C), to be considered in imposing a sanction. Instead, the committee simply recommended that respondent’s misconduct be taken into consideration in the event he applies for readmission to the bar. The committee also recommended that respondent be required to make full restitution to his client and be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee’s report.

14Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined that respondent knowingly, and perhaps intentionally, violated duties owed to his client and the profession. Despite the fact that Ms. Martin requested a refund within days of retaining respondent, he failed to respond to her request. Ms. Martin has yet to receive a refund, which amounts to significant harm.

As aggravating factors, the board found a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, indifference to making restitution, and substantial experience in the practice of law (admitted 1977). The board determined that the record does not support any mitigating factors.

Turning to the issue of an appropriate sanction, the board determined that respondent’s substantive misconduct occurred during the same time period as the misconduct subject of Barrios II and Barrios III. Accordingly, the board determined that the approach of Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), is applicable to the substantive misconduct in this case. However, the board pointed out that respondent’s failure to cooperate occurred outside of the time period subject to the Chatelain analysis. Therefore, for respondent’s misconduct in failing to cooperate with the ODC in . its investigation, the board | ¿recommended that the time period in which respondent can apply for readmission be extended by one year, to run consecutive to the extension ordered by this court in Barrios III. Finally, the board recommended that respondent be assessed with all costs of these proceedings and be ordered to make restitution to his client.

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.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent neglected a legal matter, failed to communicate with a client, and failed to properly terminate the representation of a client by refunding an unearned fee. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed | (¡against him. Accordingly, we agree that respondent violated 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 a 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 and the legal profession, causing actual harm. The aggravating factors found by the disciplinary board are supported by the record. In addition, we find the aggravating factor of vulnerability of the victim is present (considering that Ms. Martin had to borrow money to pay respondent’s fee). There are no mitigating factors present.

Turning to the issue of an appropriate sanction, we note that the substantive misconduct in Banios II and Barrios III occurred between August 2002 and May 2006, the same time period in which the substantive misconduct in the present matter occurred. In Chatelain, we determined that when the underlying conduct occurs within the same period as the misconduct forming the basis for a previous sanction, the discipline imposed should be determined as if both proceedings were before the court simultaneously. Under the circumstances, we agree with the board that the substantive misconduct in the instant matter should be considered along with the misconduct in Barrios II and Barrios III if and when respondent applies for readmission from his disbarment. Therefore, no additional discipline is necessary for this misconduct.

17However, respondent’s failure to cooperate with the ODC occurred in 2011, after the substantive misconduct in Barrios II and Barrios III. For this misconduct, the time period in which he can apply for readmission will be extended by one year, to run consecutive to the two-year extension ordered by this court in Barrios III. See In re: Boudreau, 03-1890 (La.12/3/03), 860 So.2d 1119 (applying Cha-telain analysis to substantive misconduct which occurred in the same general time frame as the lawyer’s previous misconduct, but imposing additional sanctions for the lawyer’s failure to cooperate which occurred after the prior misconduct).

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that respondent, Robert L. Barrios, Louisiana Bar Roll number 2823, be and he hereby is adjudged guilty of additional violations warranting discipline, which shall be considered in the event he seeks readmission after becoming eligible to do so. It is further ordered that for the misconduct which occurred outside of the time frame of In re: Barrios, 08-1679 (La.11/10/08), 993 So.2d 1200 (“Barrios II”), and In re: Barrios, 10-2582 (La.2/04/11), 54 So.3d 649 (“Barrios III”), the minimum period for seeking readmission from respondent’s disbarment shall be extended for a period of one year, to run consecutive to the two-year extension ordered by this court in Barrios III. Respondent shall render an accounting to his client subject of the formal charges and make restitution of any unearned fees. 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.

      . In its report, the hearing committee erroneously stated that respondent's misconduct should be taken into consideration in the event he applies for "reinstatement.” Because respondent is disbarred, he will have to apply for readmission in order to return to the practice of law.

      . In Chatelain, this court observed that when a second attorney disciplinary proceeding involves conduct that occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.


text:
    In re Mark Lane JAMES, II.
    No. 2012-B-2701.
    Supreme Court of Louisiana.
    March 1, 2013.

      ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM.

I,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Mark Lane James, II, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

In February 2009, respondent operated a vehicle while intoxicated in St. Tammany Parish. On May 11, 2010, he pled nolo contendere to driving while intoxicated (“DWI”) and was placed on two years of probation.

In October 2009, respondent operated a vehicle while intoxicated in Washington Parish. On October 14, 2010, he pled guilty to DWT and was placed on one year of supervised probation.

DISCIPLINARY PROCEEDINGS

In June 2011, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated Rule 8.4(b) (commission of a criminal act 12that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

Respondent filed an answer to the formal charges, admitting his misconduct and requesting a hearing in mitigation. Later, he stipulated that he violated Rule 8.4(b) as alleged in the formal charges.

Hearing Committee Report

After considering the testimony and evidence presented at the mitigation hearing, the hearing committee found that the formal charges have been proven by clear and convincing evidence. Based on the joint stipulation of facts and the evidence in the record, the committee determined that respondent violated Rule 8.4(b) of the Rules of Professional Conduct.

The committee then determined that respondent violated duties owed to the public and caused harm to the legal profession. The committee further concluded that although respondent’s conduct caused no actual harm to his clients or the public, he posed a significant risk of serious harm to the public by driving while intoxicated. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction for respondent’s misconduct is suspension.

In mitigation, the committee found the following factors: the absence of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings (respondent self-reported his convictions to the ODC and admitted to the factual allegations and rule violations alleged in the formal charges), and character or reputation. In further mitigation, the committee noted that respondent has met his ^obligations with respect to the sentences imposed in his criminal cases and that respondent’s misconduct had nothing to do with his clients or his law practice.

In aggravation, the committee noted only that respondent has refused to participate in the Lawyers Assistance Program (“LAP”). The committee explained that, during the October 2011 hearing, respondent strenuously denied having a problem with alcohol, much less being alcohol dependent. Despite his diagnosis of alcoholism, respondent strongly believes he can control whether or to what extent he chooses to consume alcohol. He testified repeatedly that he had not consumed alcohol since the date of his second arrest. Yet, he also admitted that, for a time, he abused alcohol and was a “binge” drinker.

At the same hearing, J.E. “Buddy” Stockwell, III, the Executive Director of LAP, testified that although respondent was complying with his LAP contract, he did not believe in the required twelve-step program of Alcoholics Anonymous (“AA”) because he does not believe in a “higher power” that controls or might impact his recovery. Furthermore, not only does respondent view AA as a religious program, he also does not believe he needs to “recover” from anything. Mr. Stockwell indicated that respondent would be required to participate in AA if he wanted to participate in LAP. In Mr. Stockwell’s opinion, respondent was only participating in LAP to meet the ODC’s requirements in order to keep his law license, not because of a need for recovery.

Notwithstanding respondent’s misgivings about AA, he testified that he intended to comply with his LAP contract. However, this changed in February 2012 when the ODC received notice from Mr. Stockwell that respondent was no longer compliant with his LAP contract because he had repudiated the AA requirement and had refused to undergo inpatient substance abuse treatment. Thereafter, the committee held another hearing, wherein respondent confirmed the above during his testimony.

|/Turning to the issue of an appropriate sanction, in light of respondent’s refusal to participate in LAP, the committee referenced two similar cases, In re: Baer, 09-1795 (La.11/20/09), 21 So.3d 941, and In re: Guidry, 11-1208 (La.9/23/11), 71 So.3d 256. Both cases involved attorneys who were arrested and/or convicted of DWI on two separate occasions. In both cases, the attorneys were not participating in LAP or otherwise able to prove their substance abuse problems were resolved, and, thus, the court suspended each of them for one year and one day, with no time deferred.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day. The committee further recommended that, upon applying for reinstatement, respondent be held to strict compliance with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E).

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation. In fact, during oral argument before a panel of the disciplinary board, respondent stipulated to the committee’s findings and recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee was correct in accepting the stipulated facts and that the committee’s additional factual findings do not appear to be manifestly erroneous. The board also determined the committee correctly concluded that respondent violated Rule 8.4(d) of the Rules of Professional Conduct as charged.

Based on these findings, the board concluded that respondent violated duties owed to the public and the legal profession. While his illegal conduct did not cause actual injury to anyone, the potential for injury was very great. Based on the | sABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found a pattern of misconduct, multiple offenses, substantial experience in the practice of law (admitted 2003), and illegal conduct. In mitigation, the board found the absence of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary board, character or reputation, and imposition of other penalties or sanctions.

Turning to the issue of an appropriate sanction, the board emphasized respondent’s testimony at the second hearing, wherein he repudiated AA and indicated he had no intention of submitting to inpatient treatment. Given respondent’s attitude toward LAP, the board agreed that the case law cited by the committee was applicable and that an actual period of suspension is necessary.

Under these circumstances, the board recommended that respondent be suspended from the practice of law for one year and one day.

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.

|fiIn this matter, respondent was twice convicted of DWI. As such, he has violated Rule 8.4(b) 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 a 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 the public and the legal profession. While he caused no actual harm, the potential for significant harm to the public existed. We agree with the hearing committee and the disciplinary board that the baseline sanction for respondent’s misconduct is suspension. The record also supports the aggravating and mitigating factors found by the board.

Since respondent is no longer participating in LAP, we find he should be required to show his compliance with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E) before being reinstated to the practice of law. Particularly relevant to respondent’s situation is Rule XIX, § 24(E)(3), which states:

If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer’s misconduct, the lawyer shall not be reinstated or readmitted unless:
|7(a) the lawyer has pursued appropriate rehabilitative treatment;
(b) the lawyer has abstained from the use of alcohol or other drugs for at least one year; and
(c) the lawyer is likely to continue to abstain from alcohol or other drugs.

A suspension for one year and one day, with no time deferred, would accomplish this. Accordingly, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Mark Lane James, II, Louisiana Bar Roll number 28622, be and he hereby is suspended from the practice of law for one year and one day. 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.

      . Respondent has been ineligible to practice law since September 19, 2012 for failing to pay bar dues and the disciplinary assessment and failing to file the trust account disclosure statement.

      . Respondent testified that, at the time of the offenses, he was involved in a contested custody fight. Additionally, respondent testified that his law partners cut him out of the practice, leaving him with no clients and no active private law practice to supplement his income from his work at the Public Defender's Office.


text:
    In re Lawrence S. CORCORAN.
    No. 2013-OB-0187.
    Supreme Court of Louisiana.
    March 1, 2013.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

|! After reviewing the evidence and considering the law, we conclude petitioner, Lawrence S. Corcoran, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner must execute a new five-year recovery agreement with the Lawyers Assistance Program. (“LAP”).

2. The period of this conditional admission shall coincide with the period of petitioner’s LAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in LAP are forwarded to the Office of Disciplinary Counsel (“ODC”).

4. Upon the expiration of the term of petitioner’s LAP agreement, the Executive Director of LAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5. Following receipt of the report from LAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

|26. Petitioner shall cooperate with LAP and the ODC, and shall comply with any and all requirements imposed upon him by LAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re John Benjamin AVIN.
    No. 2013-OB-0202.
    Supreme Court of Louisiana.
    March 1, 2013.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| t After reviewing the evidence and considering the law, we conclude petitioner, John Benjamin Avin, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of five years. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by him with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon him by the Office of Disciplinary Counsel. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

VICTORY, J., would deny conditional admission.