text:
    Timothy Gene MALONE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1091.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Timothy Gene Malone challenges the trial court’s order revoking his probation based on multiple violations and the imposition of a sentence of fifteen years’ imprisonment as a consequence of the probation violation. As correctly conceded by the State, the record does not support that Malone willfully and substantially violated certain conditions of probation, we reverse the order to the extent that it relies on those grounds for revocation, and remand for additional proceedings.

Malone was charged with violating four conditions of his probation: condition 2 (failure to pay the monthly cost of his supervision); condition 3 and condition 23 (failure to pay court costs and the cost of drug testing); and condition 16 (failing to successfully complete or remain in psy-chosexual treatment until the provider determines such treatment is no longer necessary). Subsequently, DOC filed an addendum to the original violation report that included an additional violation of condition 3 (changing residence without obtaining consent of the probation officer).

After rejecting two proposed plea agreements, the trial court held a violation of probation (VOP) hearing. At the VOP hearing, the trial court initially took judicial notice of Malone’s earlier judgment and sentence and the order of probation in the court file. The State called Correctional Probation Officer Carolyn Gaten, who testified that she was in charge of supervising Malone while he was on probation, and that Malone was instructed as to the orders and conditions of his probation. Officer Gaten stated that Malone had not paid any of his required fees, and had not filed any employment logs to document his attempts to gain employment.

Officer Gaten testified that the mental health therapist from Malone’s original treatment program notified her that Malone had been removed from treatment in that program due to a conflict of interest, which consisted of someone, who identified themselves as Malone’s attorney, calling the program and accusing the program of violating Malone’s rights. Officer Gaten stated that Malone was referred to another treatment program; that he notified the probation office that he lacked the funds to pay for the appointment on the date of referral; and that another appointment was scheduled for him at a time when he said he could make the payment. Officer Gaten stated that Malone failed to show up to the rescheduled appointment, and that she had not had any contact with Malone after that missed appointment. Officer Gaten testified that she never gave Malone permission to either move from the Dá-ñese Street address listed in his probation file or remove his personal location monitor.

On cross examination, Officer Gaten stated that Malone was given referrals to employment sites and was supposed to turn in unemployment referrals if he was not able to obtain employment. Officer Gaten testified that up until he was charged with VOP, Malone regularly reported to her; attended sex offender treatment sessions as scheduled until he was removed from his initial program; passed his drug screens; and met his curfew requirements.

Malone took the stand and testified that he attempted to obtain employment at the places to which the probation office referred him, but that he could not work at those places, such as a shopping mall, due to his sexual offender status. Malone stated that he unsuccessfully tried to obtain employment as a day laborer, and eventually resorted to collecting aluminum cans and trapping and selling a raccoon to pay for his court-ordered psychosexual therapy. Malone testified that he is not from Florida; that he has no family or friends to assist him monetarily; and that he has no bank accounts or other sources of income or property. Malone stated that he advised Officer Gaten that he was trying to find employment.

Malone stated that his former roommate, a transgendered individual known alternately as James or Sharon Fisher, with whom he had been operating a boardinghouse, called Malone’s first treatment program posing as his attorney so that Malone would get thrown out, be found in violation of his probation, and enable the roommate to retain all the profits from the boardinghouse business. Malone testified that the second treatment program in which he was enrolled cost more than the original program; that he nevertheless had come up with the money to pay for the class; but that the night before the class, the money was stolen from his nightstand.

Malone admitted to leaving the Danese Street residence without permission and to cutting off his GPS monitoring bracelet, but only did so because the probation office told him he was going to either go to the class, which he had no money to pay for, or go to jail. Malone also conceded that he did not turn in any documentation showing that he was searching for employment.

The trial court asked Malone if he had informed Officer Gaten about his problems with Fisher, and Malone replied that he had told Officer Gaten about the issues. The trial court recalled Officer Gaten to the stand, and she stated that she did not remember Malone telling her about Fisher lodging harassing calls to his treatment program; rather, she learned about the calls from the documentation sent by the treatment program. Officer Gaten stated that she had received various calls from Fisher, adopting the persona of either James or Sharon, who complained about Malone not fulfilling his probation obligations.

Following the testimony, the trial court found Malone was in willful and substantial violation of his probation, opining that he had failed to meet several of his conditions of probation, including his monetary requirements; that he could offer nothing to prove that he had actively been seeking employment; that he chose to cut off his GPS monitor and leave his registered residence; and that he chose not to attend his sex offender treatment program. In mitigation of sentence, Malone’s counsel argued that Malone turned himself in when he became aware a warrant for his arrest had been issued, and that his primary problem was financial; the trial court retorted “[w]hat was financial about cutting the electronic monitoring bracelet and leaving it abandoned?” Based on the VOP, the trial court revoked and terminated probation, and imposed a sentence of 15 years’ imprisonment, with credit for time served, in both DOC and county jail. The written order of probation revocation stated that Malone was in violation of conditions 2, 3, 22, and 73. This appeal ensued.

“To justify revocation, a violation of a condition of probation must be both willful and substantial.” Mier v. State, 58 So.3d 319, 321 (Fla. 1st DCA 2011). “This court reviews the trial court’s decision to revoke probation for an abuse of discretion.” Hostetter v. State, 82 So.3d 1217, 1219 (Fla. 1st DCA 2012). When some grounds of probation violation are upheld and others are invalidated, the proper course of action is to reverse the order revoking probation and remand for reconsideration, unless the record clearly demonstrates that the trial court would have revoked probation based only on the upheld revocation grounds. Id. at 1221; see also David v. State, 75 So.3d 386, 388 (Fla. 1st DCA 2011) (“Although a violation of condition 18 could alone support revocation, because the record does not establish that the trial court would have revoked probation and imposed a 15-year sentence on a violation of condition 18 alone, this court is required to remand for the trial court to reconsider its decision to revoke probation and to impose the same sentence.”).

Pursuant to the State’s concession that finding Malone willfully and substantially violated the monetary conditions of his probation was an abuse of discretion, at the very least the order of revocation must be remanded to allow the entry of an amended order omitting those violations as grounds for revocation, namely conditions 2, 3, and 23. Likewise, Malone testified that the reason he failed to attend his court-ordered treatment at the second treatment program was because he lacked the funds to pay for that session. Malone further testified that the probation office instructed him that if he failed to attend the scheduled treatment class, he would be sent back to jail.

Based on this testimony, which was un-controverted by any of the State’s witnesses, Malone’s violation of condition 16 was rooted in his inability to pay. It seems that the same logic the State recognizes applies to invalidate the violations of 2, 3, and 23 as grounds for revocation would, under the circumstances, apply with equal force to invalidate the violation of condition 16 as a basis for revocation. Accordingly, Malone’s violation of condition 16 could be interpreted as substantial, but not willful.

Nevertheless, there is competent substantial evidence that Malone removed his GPS tracking monitor and left his listed residence without permission from his probation officer in violation of a provision of condition 3; Malone conceded this violation at the VOP hearing and in his appellate brief. Because this is the only violation supported by the record, the case must be remanded for the trial court to reconsider its revocation and sentencing decisions because it is not clear whether it would have revoked probation or imposed the same sentence based on only one violation. See Hostetter, 82 So.3d at 1221; see also David, 75 So.3d at 388.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.

      . Due to an apparent scrivener's error, the revocation order states that Malone was found guilty of violating conditions 2, 3, 22, and 73; whereas Malone was actually charged with violations of conditions 2, 3, 23, and 16.


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Matthew A. TOBIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2293.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.

      Bert Moore, Crestview, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   MARSTILLER, J.

We have for review the trial court’s denial of Appellant’s dispositive motion to suppress evidence he was driving with a suspended or revoked license, which led the court to find Appellant in violation of community control. Because the deputy sheriff who stopped Appellant’s vehicle lacked the reasonable, articulable suspicion of criminal activity necessary to justify what the court determined — and the State conceded — was an investigatory stop, we conclude the court erred in denying the motion to suppress.

Appellant was on two years’ community control, followed by two years’ probation, for committing battery on a law enforcement officer and resisting an officer with violence. On the night in question, the Okaloosa County Sheriffs Office received two anonymous calls complaining of a disturbance at a particular residence or business located at the end of a privately-maintained road. The Sheriffs Office had received complaints in the past about disturbances at the property; some complaints were founded, some were not. The first anonymous call that night indicated firearms may be involved. When deputies investigated, they found no disturbance. Sometime later, a second call came in reporting a disturbance at the property, this time alleging someone on the property was overheard shouting “Shoot me now!” Two deputies responded, each in his own cruiser. The first deputy to arrive saw a vehicle leaving the property as he approached, and radioed to the second deputy, who was nearer to the intersection of the private road and the public street, to stop the vehicle. The second deputy, seeing the vehicle coming directly toward him, activated the blue lights on his cruiser, causing the then-unknown driver to stop his vehicle “beak to beak” with the cruiser. When Appellant began to get out of the vehicle, the deputy directed him to stay put. The deputy testified at the suppression hearing he did so because of concerns, based on the anonymous call, that a firearm may be present. Upon approaching the vehicle, however, the deputy recognized Appellant, knew he was on community control, and knew his driver’s license was suspended. At that point, he arrested Appellant for driving with a suspended license. The deputy also smelled alcohol on Appellant’s breath and found a cup containing an alcoholic beverage in the passenger or back seat of Appellant’s vehicle.

The State later filed an affidavit of violation of community control based on the new law violation and failure to abstain from using alcohol. Upon denying Appellant’s motion to suppress, the trial court found only the new law violation proven, revoked Appellant’s community control on that basis, and entered judgment sentencing him to 36 months in prison.

It is well settled that, to effect a constitutionally-permissible investigatory stop, a law enforcement officer must have a well-founded, articulable suspicion that the person stopped has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat. (2012), Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, 626 So.2d 185, 186 (Fla.1993); Berry v. State, 86 So.3d 595, 598 (Fla. 1st DCA 2012). “Mere suspicion is not enough to support a [Terry ] stop.” Popple, 626 So.2d at 186.

The parties assert that whether the deputy who stopped Appellant’s vehicle had the requisite well-founded suspicion of criminal activity turns on how the anonymous calls are characterized. See State v. Maynard, 783 So.2d 226, 228, (Fla.2001). Appellant argues the calls were merely anonymous tips that, absent additional information obtained by the deputies, were not sufficiently reliable to justify the detention that occurred here. The State counters that the callers can be reasonably characterized as citizen informants whose calls are presumed reliable and generally are sufficient to support an investigatory detention without further corroboration.

“Reasonable suspicion ... is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of circumstances — the whole picture,’ that must be taken into account when evaluating whether there is reasonable suspicion.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). “ ‘In analyzing whether third-party information can provide the requisite reasonable suspicion, courts have looked to the reliability of the informant as well as the reliability of the information provided.’ ” Berry, 86 So.3d at 598 (quoting D.P. v. State, 65 So.3d 123, 127 (Fla. 3d DCA 2011)). The less reliable the tip, the more independent corroboration will be required to establish reasonable suspicion. White, 496 U.S. at 330, 110 S.Ct. 2412. On the “spectrum of reliability,” an anonymous tip has “relatively low” reliability. Berry, 86 So.3d at 598; see also State v. DeLuca, 40 So.3d 120, 124 (Fla. 1st DCA 2010). This is because “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying [such] tips” cannot be determined. White, 496 U.S. at 329, 110 S.Ct. 2412. Thus, “[a]n anonymous tip requires that the information be ‘sufficiently corroborated’ by the officer to constitute reasonable suspicion!.]” Berry, 86 So.3d at 598 (citing State v. Evans, 692 So.2d 216, 218 (Fla. 4th DCA 1997)). A citizen informant, on the other hand, is presumed highly reliable because his or her “motivation in reporting illegality is the promotion of justice and public safety,” and because the informant gives his or her name to police and “can be held accountable for the accuracy of the information given.” DeLuca, 40 So.3d at 124. Therefore, “[a] tip from a citizen informant is sufficient by itself to provide law enforcement with reasonable suspicion to conduct a Terry stop.” Berry, 86 So.3d at 599 (citing State v. Maynard, 783 So.2d 226, 228 (Fla. 2001)).

Applying these principles to the facts in the instant case, we conclude the deputy who stopped Appellant’s car did not have a well-founded suspicion of criminal activity needed to effect a lawful Terry stop. The disturbance calls that sent the deputies to the property on the night question were anonymous tips bereft of any details indicating the information given was reliable. Indeed, the first call proved to be unfounded after deputies investigated. The second call, alleging someone was overheard yelling “Shoot me now,” still did not provide any specific, articulable facts indicating that Appellant (or any other identifiable person, for that matter) was engaged in criminal activity. Thus, even if, as the State argues, we could characterize the callers as citizen informants, there still was insufficient information given to support a reasonable, articulable suspicion that a crime had been, or was being, committed. See Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (holding anonymous tip claiming person was carrying a gun insufficient, without more, to justify stop and frisk of the person); Baptiste v. State, 995 So.2d 285 (Fla. 2008) (holding anonymous 911 call describing person and alleging person had waved firearm in public not sufficiently reliable to provide reasonable suspicion for investigative stop of person matching the description).

Because the anonymous calls provided neither the quantity nor the quality of information necessary to create reasonable suspicion, the deputies needed additional, independently-obtained information. They had none, for they had not yet begun to investigate the alleged disturbance when Appellant’s car was stopped. Nor did they observe any behavior by Appellant to generate reasonable suspicion he was or had been engaged in criminal activity involving a firearm. Compare Hudson v. State, 41 So.3d 948 (Fla. 2d DCA 2010) (finding reasonable suspicion where officers received anonymous call that a man was burglarizing cars in stadium parking lot, and observed person matching “vague description” carrying two duffel bags and hurriedly walking away from stadium) and J.H. v. State, 106 So.3d 1001 (Fla. 3d DCA 2013) (finding no reasonable suspicion where officer responded to scene of fight reported by anonymous caller and observed no fight, but saw and stopped a youth matching description who was merely sweating and out of breath and appeared nervous).

If the second deputy’s action could be characterized as attempting a consensual encounter with Appellant, see generally Popple, 626 So.2d at 186, we could affirm the trial court’s denial of Appellant’s motion to suppress. But the deputy effected the stop of Appellant’s car by activating the blue lights on his cruiser, positioning the cruiser on the road such that Appellant had to stop directly opposite, and ordering Appellant to remain in the car when he attempted to step out. “Although there is no litmus-paper test for distinguishing a consensual encounter from a seizure, a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries[.]” Id. at 187. On the other hand, “a person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.” Id. at 188. What occurred in this case was a seizure — an investigatory stop for which a reasonable, articulable suspicion of criminal activity by Appellant was required. Because the anonymous calls failed to provide deputies with the requisite level of suspicion, the stop of Appellant’s car was unlawful, and the trial court should have granted the motion to suppress. Accordingly, we reverse the order of revocation of community control and the subsequent judgment and sentence, and direct the trial court to reinstate Appellant’s community control.

REVERSED and REMANDED with directions.

ROWE and RAY, JJ., concur.

      . Reviewing a motion to suppress presents a mixed question; findings are reviewed for sufficient evidence, and the application of the law to those findings is reviewed de novo. See Berry v. State, 86 So.3d 595, 598 (Fla. 1st DCA 2012).


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. Alberto HERNANDEZ, Appellee.
    No. 3D13-1796.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2014.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Hermis D. Sanchez and Magali J. Sanders, Certified Legal Interns, for appellee.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   ROTHENBERG, J.

The defendant, Alberto Hernandez, was charged with trafficking in cannabis and possession of a place for the purpose of trafficking based on the seizure of a large quantity of marijuana the defendant was cultivating inside his home. After conducting an evidentiary hearing, and unfortunately in reliance on an incorrect representation of the law by defense counsel, the trial court suppressed the defendant’s statements and the physical evidence. We reverse.

The evidence is as follows. Five officers from the Miami-Dade Police Narcotics Bureau responded to the defendant’s residence in two unmarked police vehicles at 4:25 p.m. to investigate an anonymous tip that marijuana was being cultivated inside the residence. The officers were dressed in plain clothes and black tactical police vests. When they arrived, the defendant and Orlando Garcia (“Garcia”) were smoking cigarettes in the front yard of the residence while leaning against a chain-link fence that separated the defendant’s yard from public property.

Only Detectives David Quintas and Luis Correa (collectively “the detectives”) approached the defendant, and no weapons were drawn at any point during the encounter. As soon as the detectives approached the defendant, they identified themselves and produced their police identifications. After the detectives identified themselves, the defendant told the detectives that he was the owner of the property, opened the gate to invite the detectives onto his property, and asked the detectives, “What’s going on?” However, because the detectives saw two or three dogs roaming unsecured in the yard (and one of the dogs was a large dog), they did not want to enter the yard. Detective Correa explained to the defendant that they did not want to enter the property because of the dogs, and Detective Correa asked the defendant if the defendant would step out onto the sidewalk instead to speak with the detectives.

When the defendant exited his property, the detectives asked him for identification to verify who they were speaking to and to place the defendant’s name in their report. After the defendant produced his identification, the detectives told the defendant that they had received a. tip that marijuana was being grown at that location and handed the defendant a consent to search form. The defendant read the form out loud. The consent to search form specifically informed the defendant that he had the right to refuse to give the detectives consent to search and that he could demand that a search warrant be obtained before a search was conducted. Despite being informed of these rights, the defendant signed the form consenting to the search, walked Detectives Correa and Quintas to the back of the house, allowed them to enter the house, and escorted them to a marijuana lab within the house. The detectives advised the defendant of his rights per a written rights waiver form, and after the defendant read and signed the form, the defendant provided a written confession.

The State and the defense agree that the officers had no probable cause or reasonable suspicion when they responded to the defendant’s home and that their investigation began as a police encounter similar to a “knock and talk.” The issues in this appeal are whether the encounter evolved into a seizure implicating the Fourth Amendment and whether the defendant’s consent was voluntary, or rather, as a result of coercion.

A search based on consent is lawful if the consent was given freely and voluntarily. Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998). The determination of whether a seizure has occurred and whether the consent was given freely and voluntarily must be based on the totality of the circumstances. State v. Baez, 894 So.2d 115, 117 (Fla.2004) (“[T]he totality of the circumstances controls in cases involving the Fourth Amendment.”); Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992); Lunar-Martinez v. State, 984 So.2d 592, 597 (Fla. 2d DCA 2008). The factors to consider when analyzing the totality of the circumstances include: (1) the time and place of the encounter; (2) the number of officers present; (3) the officers’ words and actions; (4) the age and maturity of the defendant; (5) the defendant’s prior contacts with the police; (6) whether the defendant executed a written consent form; (7) whether the defendant was informed that he could refuse to give consent; and (8) the length of time the defendant was interrogated before consent was given. See generally Luna-Martinez, 984 So.2d at 597-602 (discussing each of these factors).

Rather than addressing these factors and challenging the consensual nature of the encounter based on the totality of the circumstances, defense counsel argued that the defendant’s consent was involuntary as a matter of law because Detective Correa obtained the defendant’s identification and still had the defendant’s identification in his possession when he sought the defendant’s consent. In support of this argument, defense counsel told the trial court that the law was clear on this issue and that suppression was required based on Perko v. State, 874 So.2d 666 (Fla. 4th DCA 2004), Brye v. State, 927 So.2d 78 (Fla. 1st DCA 2006), and State v. Campbell, 911 So.2d 192 (Fla. 4th DCA 2005), which defense counsel provided to the trial court. The trial court ultimately relied on these cases in suppressing the evidence.

Unfortunately, neither the defense nor the State informed or provided the trial court with Golphin v. State, 945 So.2d 1174 (Fla.2006), wherein the Florida Supreme Court disagreed with the Fourth District Court of Appeal’s analysis in Perko and Baez v. State, 814 So.2d 1149 (Fla. 4th DCA 2002), which was substantially the same analysis as the Fourth District Court of Appeal’s analysis in Campbell and the First District Court of Appeal’s analysis in Brye. Defense counsel, therefore, led the trial court to error.

Had the trial court been provided with Golphin, it would have learned that the Fifth District Court of Appeal in Golphin v. State, 838 So.2d 705 (Fla. 5th DCA 2003), had certified conflict with Baez v. State, 814 So.2d 1149 (Fla. 4th DCA 2002) (“Baez I”), regarding this very issue. In Baez I, the Fourth District Court of Appeal created a bright line rule that police officers necessarily effect a seizure when they hold a suspect’s identification during questioning after an initial check of the identification. Id. at 1151-52. Conversely, in Golphin, the Fifth District Court of Appeal found a similar scenario subject to the usual totality of the circumstances analysis. Golphin, 838 So.2d at 707-08. In resolving the conflict, the Florida Supreme Court in Golphin noted that another panel at the Fourth District Court of Appeal had performed the same analysis and reached the same conclusion as the Baez I court in Perko, finding that Perko was effectively seized when the police retained his identification and obtained Per-ko’s consent to search, which yielded drug evidence; whereas the Second District Court of Appeal had reached the opposite conclusion in Mays v. State, 887 So.2d 402 (Fla. 2d DCA 2004), Watts v. State, 788 So.2d 1040 (Fla. 2d DCA 2001) (en banc), State v. Mitchell, 638 So.2d 1015 (Fla. 2d DCA 1994), and McLane v. Rose, 537 So.2d 652 (Fla. 2d DCA 1989). Golphin, 945 So.2d at 1178.

The Fourth District’s decision in Campbell simply followed Perko, and the First District aligned itself with the Fourth District in Brye. Thus, the conflict the Florida Supreme Court was in effect resolving was the Fourth and First District’s positions in Baez, Perko, Campbell, and Brye (concluding that the defendant in each case was seized when the police retained his identification and thus the consent given was not voluntary), and the Second and Fifth District’s contrary conclusions in Golphin, Mays, Watts, Mitchell, and McLane (applying a totality of the circumstances analysis).

Ultimately, the Florida Supreme Court approved the Fifth District’s reasoning in Golphin and concluded that whether a person has been seized for purposes of the Fourth Amendment is based on the totality of the circumstances — not a bright line rule. Golphin, 945 So.2d at 1174. Importantly, the Florida Supreme Court also found that a noneompulsory request for identification will generally not in itself implicate the Fourth Amendment. Id. at 1185. However, further investigation or a search after an officer has taken a suspect’s license is a factor to be considered when determining whether a seizure has occurred. Id. at 1185. By way of example, the Florida Supreme Court compared the circumstances in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), to those in United State v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

In both Royer and Mendenhall, narcotics agents approached people who were traveling through major airports and who fit the drug courier profile. In both cases, the agents requested that the traveler produce his travel documents and identification. After producing the travel documents and identification, the traveler consented to a search, and the search revealed that the traveler was carrying illicit drugs. Golphin, 945 So.2d at 1185. The United States Supreme Court concluded that although Royer was seized for Fourth Amendment purposes, Mendenhall was not. Id. Importantly, the United States Supreme Court found that what distinguished Mendenhall from Royer was that Royer’s ticket and identification remained in the possession of the officers throughout the encounter, the officers had possession of Royer’s luggage, and as a practical matter, Royer could not leave the airport without them. In contrast, in Mendenhall, no luggage was involved; Mendenhall’s ticket and identification were immediately returned; and the officers were careful to advise Mendenhall that he could decline to be searched. Golphin, 945 So.2d at 1185.

The Florida Supreme Court additionally noted that some courts have also considered whether the retention of the individual’s papers would likely have impeded his freedom to go about his business as a factor in the totality of the circumstances analysis. Id. at 1187. Thus, these courts have taken into consideration the status of the individual (for example: whether he was the driver or passenger of a vehicle or a pedestrian), the type of identification involved, and the individual’s immediate business. Id. at 1186-87. For example, the Florida Supreme Court noted that in United States v. Analla, 975 F.2d 119 (4th Cir.1992), the police received a call that a man using a pay phone matched the description of a man wanted in connection to a robbery. Golphin, 945 So.2d at 1187. Two officers responded to the pay phone, approached the man, asked to speak with him, requested the man’s driver’s license and registration, and requested an outstanding warrants check via walkie-talkie while another officer asked the man for permission to search his car. The man, Analla, consented, and the officers found the murder weapon in his car. The Fourth Circuit Court of Appeals found that Analla was not seized because the officer necessarily had to retain Analla’s identification and registration for a short time to perform a warrants check; the officer did not take the license into his squad car, but instead stood beside the car near Analla and used his walkie-talkie to run the warrants check; and Analla was free to request that his documents be returned to him and to leave the scene. Id.

In examining the facts in Golphin, the Florida Supreme Court noted that the officers approached the group of men in a casual manner without the use of sirens, lights, or weapons and without blocking the egress of the area. Golphin interacted primarily with a single officer; and the officer engaged Golphin in a casual manner, requested Golphin’s identification, which Golphin voluntarily provided, and conducted the warrants check in Golphin’s presence. Additionally, Golphin was not summoned to be questioned in the presence of multiple officers, isolated in any way, or treated in a way that would suggest that he was not free to go. Golphin, 945 So.2d at 1188. He also “was not the driver of a vehicle such that abandoning his driver’s license identification to the officer’s possession would subject him to penalty for violating Florida’s traffic laws.” Id. Thus, the Florida Supreme Court found that “theoretically, retention of Gol-phin’s identification would not have constrained his ability to either request the return of the identification or simply end the encounter by walking into the apartment in which he was staying.” Id. Based on the totality of the circumstances, the Florida Supreme Court found that Gol-phin’s encounter with the police was consensual and that the “consensual encounter did not mature into a seizure simply because the police retained Golphin’s identification.” Id. at 1193.

The Instant Case

An examination of all the factors relevant to a totality of the circumstances analysis in this case shows that, much like the stop in Golphin, Hernandez’s encounter with the police was consensual.

A. Time

The encounter occurred at 4:25 in the afternoon.

B. Location of the encounter

The detectives were standing on a public sidewalk when they initiated their “knock and talk.” The detectives did not enter the defendant’s property without his consent. In fact, after the detectives identified themselves, the defendant, absent a request from the detectives, opened the gate to invite the officers onto his property. However, because of the dogs, the detectives declined the defendant’s invitation and asked the defendant if he would come out onto the sidewalk instead. All of these actions were voluntary.

C. The defendant’s age and maturity

The defendant was fifty-four years old.

D. Number of officers

Although five officers were present, only two approached the defendant, and Detective Correa individually conducted the “knock and talk” with Detective Quintas serving as a witness. Thus, the defendant’s interaction with law enforcement was essentially with one officer. All of the officers were dressed in plain clothes but wearing tactical vests. No guns were drawn, and the officers arrived in two unmarked vehicles.

E. The words and actions of the police

The officers approached in a casual manner, identified themselves, produced their identification for the defendant’s review, and explained why they were there. They asked to see the defendant’s identification to confirm the defendant’s identity. Although Detective Correa still had the defendant’s identification in his possession when he presented the defendant with a consent to search form, the entire encounter at that point was very brief — “only minutes” — no interrogation had been conducted, and the officers remained on public property and did not enter onto the defendant’s property even after the defendant invited them to enter.

F. Consent form

The defendant was presented with a written consent to search form, which the defendant read out loud. This form specifically advised the defendant that he had the right to refuse to give consent and to require the officers to obtain a warrant before conducting a search. And, based on the trial courts factual findings, the defendant signed the consent to search form without the officers making any threats.

G. The defendant’s ability to terminate the encounter

The defendant was at his own home, not in a car, at an airport, or any other public place. He was outside his own gated property, and the police had already declined the defendant’s invitation to enter the property. The defendant could have simply requested the return of his identification, refused to answer any further questions, and gone back onto his own property inside the gate or into his home. Instead, the defendant signed a consent to search form, locked up his dogs so the police could enter, and escorted the officers to the room where he was cultivating his marijuana. The defendant then executed a Miranda rights waiver form in which he agreed that he was speaking freely and voluntarily with the police without counsel.

Conclusion

Under the totality of the circumstances, and based on the Florida Supreme Court’s reasoning in Golphin, the defendant’s encounter with the police was consensual, and the consensual encounter did not evolve into a seizure simply because the officers had not yet written down the defendant’s information and still had his identification in their possession when they presented the defendant with a consent to search form. The trial court, which was not properly informed regarding the law and did not have the benefit of Golphin, which essentially disagreed with the case law provided by defense counsel, was unfortunately led into error. Accordingly, we reverse the order suppressing the evidence and the defendant’s statements and remand for further proceedings.

Reversed and remanded.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PER CURIAM.

text:
    Lisa Gail MULLIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2234.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Nancy A. Daniels, Public Defender, and Diana L. Johnson and Glen P. Gifford, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Lisa Gail Mullís appeals her convictions and sentences for attempted second-degree murder, kidnapping, robbery with a deadly weapon, carjacking, and second-degree arson. Fundamental error in the conviction for attempted second-degree murder occurred when the court instructed the jury that an element of the lesser-included offense of attempted manslaughter by act is the commission of “an act which was intended to cause the death of’ the victim. Williams v. State, 128 So.3d 23 (Fla.2013). Consequently, we reverse the conviction and sentence for attempted second-degree murder and remand for a new trial on that count. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Darrell THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2307.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Steven Brian Whittington of Whitting-ton & Culbert, P.A., Green Cove Springs, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Darrell Thornton appeals his convictions and sentences for attempted second-degree murder, battery, robbery with a deadly weapon, carjacking, and second-degree arson. As the State properly concedes, fundamental error in the conviction for attempted second-degree murder occurred when the court instructed the jury that an element of the lesser-included offense of attempted manslaughter by act is the commission of “an act which was intended to cause the death of’ the victim. Williams v. State, 123 So.3d 23 (Fla.2013). Consequently, we reverse the conviction and sentence for attempted second-degree murder and remand for a new trial on that count. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

THOMAS, RAY, and OSTERHAUS, JJ., concur.


text:
    Darrell Anthony WARD, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2638.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Bruce A. Miller, Public Defender, and Nicholas M. Thomas, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 28, 2012, judgment and sentence in Escambia County Circuit Court case number 2011 CF 005809 A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, C.J., BENTON and RAY, JJ., concur.


text:
    Glen L. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2287.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2014.
    Glen L. Young, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a rule 3.850 motion raising seven claims. However, he argues only two of the claims, claims two and three, in his initial brief. He has therefore waived the right to have the remaining five claims addressed in this appeal. See White v. White, 627 So.2d 1237 (Fla. 1st DCA 1993).

We hold that, regarding claims two and three, the appellant has presented facially sufficient claims of ineffective assistance of trial counsel for refusing to stipulate that the appellant qualified for violent career criminal status. The state is not required to prove a defendant qualifies for violent career criminal status if a defendant offers to stipulate to this status. If a defendant offers to stipulate to this status, the state and the court should accept the stipulation. Once a defendant stipulates to this status the state is not required to prove violent career criminal status. See Brown v. State, 719 So.2d 882 (Fla.1998); State v. Emmund, 698 So.2d 1318 (Fla. 3d DCA 1997).

We cannot conclude, based upon the record before us, that the appellant did not suffer prejudice resulting in a different outcome of his trial due to the state presenting evidence to the jury that the appellant qualified for violent career criminal status and arguing before the jury that the appellant was a violent career criminal. See Emmund; Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We therefore reverse and remand the trial court’s order on appeal and direct the trial court to hold an evidentiary hearing on claims two and three.

REVERSED AND REMANDED.

LEWIS, C.J., BENTON, and RAY, JJ., concur.


text:
    Jonathon Glen HARRELSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4187.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2014.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jonathon Glen Harrelson appeals his conviction and sentence for lewd, lascivious or indecent assault on a child under 16 years of age. He argues that (1) he was convicted for conduct that was not proscribed at the time the conduct allegedly occurred, (2) the trial court erred by admitting collateral crime evidence without first finding it clear and convincing, and (3) the trial court erred by denying his post-verdict motion for mistrial after one juror indicated she did not agree with the guilty verdict. We affirm on the first and third issues, but reverse on the second issue for the reasons discussed below.

In 2008, the State filed an Amended Information in Gadsden County, Florida, charging that Harrelson On various occasions between February 15, 1995, and August 1, 1998, did unlawfully handle, fondle or make an assault in a lewd, lascivious, or indecent manner upon L.A., a child under sixteen years of age, by Touching in a Lewd or Lascivious Manner the Genitals, Genital Area, or Buttocks of LA. or Enticed the Child to so Touch Him, contrary to Section 800.04(1), Florida Statutes.

The State timely filed a Notice of Evidence of Other Crimes stating it intended to introduce evidence showing that during the same time period, Harrelson committed similar acts on the same victim in Gulf County, Florida.

Before commencing trial, the court considered the admissibility of the collateral crime, or Williams rule, evidence. See § 90.404(2)(b)l., Fla. Stat. (providing that in child molestation prosecutions, evidence a defendant has committed other acts of child molestation is admissible “and may be considered for its bearing on any matter to which it is relevant”). The State explained the victim would testify to an incident during which Harrelson grabbed her hand and made her touch his penis. The incident allegedly occurred at Harrel-son’s mother’s home in Wewahitchka while Harrelson, the victim and her younger half-brother (Harrelson’s son with the victim’s mother) were spending the night, and the victim was sleeping on a pull-out couch. Defense counsel argued that under McLean v. State, 934 So.2d 1248 (Fla.2006), the trial court was required to first determine whether the evidence of a collateral crime was clear and convincing, and if so, then to determine, under section 90.403, Florida Statutes, if the danger of unfair prejudice to Harrelson would substantially outweigh the probative value of the evidence. Interestingly, counsel suggested it would be more efficient — and possibly would avoid “having a mini trial” — if the trial court were to assume, initially, the evidence was clear and convincing, and proceed with the 90.403 analysis. The court obliged, and ruled it would not exclude the collateral crime evidence because of its “substantial similarity” to the charged conduct. But then the court further ruled it need not make a finding of clear and convincing evidence because the collateral crime involved the same victim, the same conduct and the same timeframe as the charged offense. The victim was permitted to testify at trial about the Wewahitchka incident, telling the jury it was the first time Harrelson molested her. Only then was Harrelson able to cross-examine the victim and put on a witness— his mother — who testified, though not unequivocally, that the pull-out couch in question had been given away before the alleged incident.

The trial court in this case erred in failing to find clear and convincing evidence of the collateral crime before admitting the evidence at trial. “[B]efore even considering whether to allow evidence of prior acts to be presented to the jury, the trial court must find that the prior acts were proved by clear and convincing evidence.” McLean, 934 So.2d at 1262 (emphasis added). This is so even if the collateral incident involves the same victim, contrary to the trial court’s ruling in this case. See, e.g., Elmer v. State, 114 So.3d 198, 204-5 (Fla. 5th DCA 2012) (instructing trial court on remand to make requisite clear-and-convincing finding before considering whether, in retrial of defendant on charges of sexual battery on a child less than twelve years old, to admit collateral evidence of defendant’s continued sexual abuse of victim after she turned twelve); Downs v. State, 40 So.3d 49, 53 (Fla. 5th DCA 2010) (stating evidence defendant molested same victim subsequent to charged sexual battery, though incorrectly admitted as inextricably intertwined with the battery, may have been admissible under section 90.404(2)(b)l., but “the trial court then would have been required to find that the [subsequent] acts were proved by clear and convincing evidence”); Wightman v. State, 982 So.2d 74, 76 (Fla. 2d DCA 2008) (same).

“It is well-settled that the erroneous admission of collateral crimes evidence is presumptively harmful and may be found harmless only if the State establishes that there is no reasonable possibility that the error contributed to the verdict.” Jackson v. State, 140 So.3d 1067, 1073 (Fla. 1st DCA 2014) (and cases cited therein). The victim here — 23 years old at the time of trial — testified she was seven years old when Harrelson and her mother divorced in January 1996. For more than two years thereafter, she and her half brother visited Harrelson every other weekend. They usually stayed at the Gadsden County home of Harrelson’s father and stepmother where, the victim testified, Harrelson molested her during each visit. She described the acts and surrounding circumstances in detail, though she could not specify the dates on which the acts occurred or how many incidents there were. The visitation and molestation ceased “a few months” before the victim moved with her mother and half-brother to Texas in August 1998. The house the victim remembered staying in was located near a lake; she identified the home when shown a photograph of it. Although the Harrelsons previously lived in another home at a different location, the victim testified the molestation did not occur there.

The State’s case against Harrelson rested on the victim’s credibility. Defense witnesses presented testimony explaining why the alleged molestation did not occur, or could not have occurred, as the victim claimed. The defense also presented arguably unassailable evidence showing that the Harrelsons did not move into their Lake Talquin home until late December 1997. While this evidence did not disprove that Harrelson molested the victim there, it significantly weakened her testimony. Because the victim’s credibility was the focal issue in this case, we cannot say there is no reasonable possibility the jury did not factor in the Wewahitchka collateral crime testimony in assessing her credibility and finding Harrelson guilty of the charged acts. See McLean, 934 So.2d at 1263 (approving use of collateral crime evidence admitted under section 90.404(2)(b) to corroborate alleged victim’s testimony where identity is not an issue).

That said, we do not believe this conclusion mandates a new trial because the trial court did perform the section 90.403 “gatekeeping” analysis required under McLean. , See idL at 1261-62. Therefore, we reverse Harrelson’s convietion and remand for the trial court to conduct the elear-and-convincing inquiry McLean requires. If the State fails to prove the collateral crime, the court shall hold a new trial excluding the collateral crime evidence. Cf. Henrion v. State, 895 So.2d 1213, 1217 (Fla. 2d DCA 2005) (reversing convictions and remanding “for further proceedings which may include a new trial” where trial court admitted Williams rule evidence without first requiring State to prove collateral crime by clear and convincing evidence).

REVERSED and REMANDED with directions.

ROWE, MARSTILLER, and RAY, JJ„ concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . We decline the State’s invitation to make the McLean clear-and-convincing finding ourselves in the first instance. Although the State has given us case law indicating federal circuit courts of appeals do so, we know of no similar authority for Florida’s appellate courts. In any event, the record does not enable such a finding by this court for there is no proffered testimony for us to consider. We also reject the State’s contention that the collateral crime evidence was alternatively admissible as inextricably intertwined with the charged crime.

      . Harrelson does not assert otherwise.

      . The trial court also gave the appropriate cautionary instructions about collateral crime evidence to the jury. See McLean, 934 So.2d at 1262.


text:
    Jose Gabino DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. ID13-2957.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2014.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his concurrent life sentences as an Habitual Violent Felony Offender (HVFO) and Prison Releasee Reoffender (PRR) for his conviction of armed robbery with a deadly weapon. We agree that the HVFO sentence is illegal because it is the same length as the PRR. Thus, we reverse and remand for the trial court to strike appellant’s designation as an HVFO. See Grant v. State, 770 So.2d 655, 658 (Fla.2000); Daniels v. State, 31 So.3d 190, 191 (Fla. 1st DCA 2009). Because this is a purely ministerial act, appellant need not be present at resentenc-ing. On all other issues, we affirm.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

WOLF, ROBERTS, and ROWE, JJ., concur.


text:
    In re Otha Curtis NELSON, Sr.
    No. 2013-B-2699.
    Supreme Court of Louisiana.
    May 7, 2014.
    Rehearing Denied July 1, 2014.

      Office of Disciplinary Counsel, Charles Bennett Plattsmier, Chief Disciplinary Counsel, Yolanda Cezar, Deputy Disciplinary Counsel, for applicant.
    Otha Curtis Nelson, Sr.; Schiff, Scheck-man & White, Julie Brown White, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Otha Curtis Nelson, Sr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Count I — The Aucoin Matter

The following facts are not in dispute, having been stipulated to by the parties:

On July 15, 2000, respondent issued a check from his trust account in the amount of $250, made payable to Tina Aucoin on behalf of his client Karen Aucoin. Tina attempted to cash the check on July 19, 2000 but was informed by the bank that the check would not clear. However, Tina was able to cash the check on July 25, 2000.

The funds would not clear respondent’s trust account because he failed to reconcile the account during this time. He also improperly maintained his personal funds in the trust account during this time.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping property of clients or third persons) and 8.4(a) (violation of the Rules of Professional Conduct).

| zCount II — The Matthews Succession Matter

Beulah Holmes hired respondent to handle the succession of her mother, Fannie Matthews. At the time of probate, Ms. Matthews’ estate was valued at $50,736.12. Respondent billed the succession $21,576.75, or 43% of the value of the estate, for his services; of that amount, in June 2000, he collected $14,276.93, or approximately 28% of the value of the estate. He then attempted to secure real property owned by the estate as further payment of his billed fee, and did so without advising the owners of the property to obtain an independent legal opinion.

In the estate items, respondent included United States savings bonds payable to certain relatives of Ms. Matthews even though the savings bonds were not properly part of the estate. In an attempt to ensure his fee was paid, respondent intentionally held the savings bonds in his possession from June 2000 until February 2002 (approximately twenty months) even though they constituted property of third persons. He also attempted to collect a fee for cashing the savings bonds in the amount of 25% of the face value of the bonds. However, respondent’s services were not necessary because the savings bonds could have been cashed by the owners without the assistance of an attorney. None of the owners of the savings bonds agreed to compensate respondent for cashing them.

The succession was not complex, did not require administration, and did not involve novel questions of law. It did not impose unusual time constraints on respondent, and he was not precluded from accepting other employment while handling it.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.5(a) (charging an unreasonable fee), 1.8 (conflict of interest), 1.15,1.16 (declining or terminating representation), 8.4(a), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

| zCount III — The Kendrix Matter

The following facts are not in dispute, having been stipulated to by the parties:

In 1994, Roy Kendrix hired respondent to handle his workers’ compensation matter. In July 1995, Mr. Kendrix was awarded a $31,900.35 judgment in the case. Included in the judgment was a $1,000 award for arbitrary and capricious failure to pay benefits and $3,000 in attorney’s fees in connection with the award for arbitrary and capricious failure to pay benefits, plus interest. In December 1996, respondent withheld $3,354.56 as attorney’s fees for the arbitrary and capricious finding. He also withheld as attorney’s fees $3,828.79, which represented 20% of the first $20,000 awarded, plus interest from the date of judicial demand, as provided by statute. However, respondent admitted that he failed to file a motion for approval of these attorney’s fees.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(a), 1.15, and 8.4(a).

Count IV — The NSF Check Matter

The following facts are not in dispute, having been stipulated to by the parties:

On May 30, 2002, respondent issued a $166.50 check from his trust account to pay the filing fee to the Clerk of Court for the Louisiana Supreme Court in a matter involving his client, Colin Williams. The check was returned for non-sufficient funds (“NSF”). On June 27, 2002, respondent remitted payment of the filing fee to the Clerk of Court via a certified check, and the clerk’s office accepted the filing on behalf of Mr. Williams.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5 (fee arrangements), |41.15, 8.4(a), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count V — The Hills Matter

In August 2002, Marvin Hills hired respondent to represent him in a child custody matter. Respondent and Mr. Hills entered into a verbal fee agreement, and Mr. Hills paid respondent a total of $750 for the representation. Respondent prepared and filed a rule for change of custody and drafted a single set of interrogatories and requests for production of documents. Mr. Hills terminated respondent’s services in February 2003.

Thereafter, in April 2003, respondent sent Mr. Hills a letter demanding he pay an additional $1,305 in attorney’s fees over and above the $750 previously paid. One month later, respondent sent Mr. Hills an itemized bill for attorney’s fees totaling $3,818.14 with a balance due of $3,193.14. The bill included services such as typing and updating respondent’s time sheet, which should not have been included in the services rendered at respondent’s $125 hourly rate.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4.1.5, 8.4(a), 8.4(c), and 8.4(d).

Count VI — The Brown Matter

The following facts are not in dispute, having been stipulated to by the parties:

In July 2003, Jackie Brown hired respondent to represent her husband, Albert Brown, in a felony criminal matter. Respondent agreed to represent Mr. Brown at an hourly rate of $150 per hour for work done at his office and $250 per hour for work done out of his office.

| ,-Mr. Brown’s felony charge was reduced to a misdemeanor on the day of the trial in November 2003. The Browns paid respondent a total of $1,400 for the representation.

On February 11, 2004, respondent sent the Browns an itemized bill for $33,761.65. In the bill, he included charges for typing and updating his time sheet, which should not have been included in the services rendered at his hourly rate.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5, 8.4(a), and 8.4(c).

Count VII — The Lewy Physical Therapy Matter

The following facts are not in dispute, having been stipulated to by the parties:

Respondent represented Barnabus Whitley in a personal injury matter and guaranteed payment to Lewy Physical Therapy for treatment of Mr. Whitley’s injuries. Respondent settled Mr. Whitley’s claim and disbursed Mr. Whitley’s portion of the settlement funds to him on September 6, 2003. Despite withholding $562 from the settlement funds to pay Lewy Physical Therapy, respondent did not remit the funds until July 16, 2005.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15, 8.4(a), and 8.4(d). Respondent stipulated that he violated Rule 1.15(d) (failure to timely remit funds to a client or third person) by failing to promptly deliver the funds to Lewy Physical Therapy.

Count VIII — The Tayari Harris Matter

Respondent represented Tayari Harris in a criminal matter, the trial of which began in December 2005. During voir dire, respondent used all twelve of his | (¡peremptory challenges to remove Caucasian jurors from the panel. Respondent subsequently admitted that he excused the jurors “because of racial reasons,” leading the trial court to grant the State’s request for a mistrial.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1 (competence), 3.5 (impartiality and decorum of the tribunal), 8.4(a), and 8.4(d).

Count IX — The Joseph Harris Matter

On March 23, 2007, Joseph Harris hired respondent to represent him in a pending civil case in federal court. On that day, the two entered into a written contract for the representation. On April 13, 2007, respondent enrolled as Mr. Harris’ counsel of record. Motions to dismiss Mr. Harris’ case were granted on October 22, 2007.

There is no indication that respondent filed any opposition to the defendants’ motions to dismiss. Furthermore, respondent never made a court appearance on Mr. Harris’ behalf. Respondent last communicated with Mr. Harris in August 2008 and never informed Mr. Harris that he was no longer representing him.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4, 1.16(d) (obligations upon termination of the representation), and 8.4(a).

Count X — The Lewis Matter

Tracey Valmont paid respondent $500 to review Dwayne Lewis’ post-conviction relief matter. In July 2009, Mr. Lewis filed a disciplinary complaint |7against respondent, requesting a refund of the $500 because of alleged misconduct by respondent. Respondent did not respond to notice of the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.2, 1.3,1.4, 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a).

Count XI — The Valmont Matter

In January 2008, Tracey Valmont hired respondent to represent him in a personal injury matter against the Louisiana Department of Public Safety and Corrections. Mr. Valmont paid respondent a $500 advance deposit. Thereafter, respondent failed to take any material action in furtherance of Mr. Valmont’s claim. He also failed to adequately communicate with Mr. Valmont.

In October 2009, Mr. Valmont filed a disciplinary complaint against respondent. Respondent failed to respond to notice of the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(c), 8.4(a), and 8.4(c).

Count XII — The Wiley Matter

In December 2007, respondent and Christopher Wiley entered into an attorney-client relationship. Mr. Wiley paid respondent a total of $3,150 for his services. Of this amount, respondent earned only $1,545, leaving an unearned balance of $1,605, which he has not yet refunded.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c),8.4(a), and 8.4(c).

1 sCount XIII — The Searls Matter

Respondent reviewed a civil claim that Gregory Searls wished to pursue, but he declined the representation. Mr. Searls did not pay respondent for reviewing his claim. In February 2010, Mr. Searls filed a disciplinary complaint against respondent, but respondent failed to respond to notice of the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4, 8.1(c), and 8.4(a).

Count XIV — The Audit Matter

The following facts are not in dispute, having been stipulated to by the parties:

On May 14, 2010, respondent issued a $171.50 check from his trust account to pay the filing fee to the Clerk of Court for the Louisiana Supreme Court in a matter involving his client, Rosa Clark. The check was returned NSF. On June 2, 2010, respondent remitted payment of the filing fee to the Clerk of Court via a certified check, and the clerk’s office accepted the filing on behalf of Ms. Clark.

Based on this NSF check, the ODC’s auditor, Angela Willis, contacted respondent and requested documents for a review of his trust account. However, the ODC ultimately had to issue a subpoena to respondent’s bank in order to obtain the requested documents.

Ms. Willis prepared a report of her findings with respect to respondent’s trust account, to which findings respondent has stipulated. In particular, respondent acknowledged that he was improperly using his trust account and maintaining his personal funds in the account. For example, on June 23, 2010, funds related to a succession matter were deposited into the trust account; however, these funds were used to pay respondent’s office expenses, as described in Ms. Willis’ report. On July 22, 2010, the client finally received $8,000 as her share of |3these funds, and she allowed respondent to retain $2,025.04 of the funds as a loan to cover respondent’s costs in connection with her grandmother’s legal matter. Respondent’s share of the funds was $1,300.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5, 8.1(c), 8.4(a), 8.4(c), and 8.4(d).

DISCIPLINARY PROCEEDINGS

In November 2010, the ODC filed formal charges against respondent. Respondent answered the formal charges, essentially denying any misconduct. Accordingly, the matter proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee made the following findings regarding each count of the formal charges:

Count I — The committee accepted the facts as stipulated to by the parties. Additionally, the committee found that Tina’s access to the funds was delayed, but the check eventually cleared. The committee found no evidence that respondent knowingly or intentionally sought to deprive Tina of the funds at issue and determined there was no showing of actual client harm. The committee found that respondent’s mishandling of his trust account was merely negligent. The committee also noted respondent’s testimony that he left a “cushion” of personal funds in his trust account to pay service charges.

Based on these findings, the committee determined respondent negligently, but not knowingly or intentionally, violated Rule 1.15 of the Rules of Professional Conduct because, at the time of the misconduct, Rule 1.15 did not address how | inattorneys could pay bank service charges related to trust accounts. The committee did not address the alleged Rule 8.4(a) violation. Despite its finding of a violation of Rule 1.15, the committee dismissed the charges in this count on the basis they are prescribed pursuant to Supreme Court Rule XIX, § 31, which provides that “[a] disciplinary complaint, or the initiation of a disciplinary investigation with regard to allegations of attorney misconduct, where the mental element is merely negligence, shall be subject to a prescriptive period of ten years from the date of the alleged offense.”

Count II — The committee made factual findings consistent with the underlying facts described above. Additionally, the committee found that the fee respondent billed for his work on the succession, the fee respondent collected for his work on the succession, and the 25% fee respondent attempted to charge for cashing the savings bonds were all excessive. Respondent also did not timely return the savings bonds to the owners and misrepresented to the owners that (1) they needed an attorney to cash the bonds and (2) they were personally obligated to pay his fee. Finally, the committee determined that respondent acted knowingly in soliciting a fee relative to the savings bonds and in failing to timely return the savings bonds to the owners, acted intentionally in providing misleading legal advice regarding the cashing of the savings bonds, and acted negligently in including the savings bond in the estate.

With respect to respondent’s fee, the committee determined that he violated Rule 1.5(a) of the Rules of Professional Conduct by collecting the $14,276.93 fee and Rule 8.4(a) by charging and attempting to collect the other fee amounts. The committee further determined that respondent violated Rule 1.15 by failing to promptly deliver the savings bonds to the owners and violated Rule 8.4(c) by|ugiving the owners of the savings bonds misleading legal advice. However, the committee found insufficient evidence in the record to prove a violation of Rule 1.8 because respondent’s offer to buy real property owned by the estate was not accepted. The committee also determined the ODC did not prove violations of Rules 1.4 and 1.16.

Count III — The committee accepted the facts as stipulated to by the parties. Additionally, the committee found that respondent’s failure to file a motion for approval of his attorney’s fees was based on his belief that such a motion was not needed in light of the facts and, therefore, was a negligent failure. The committee also found the fees at issue were not excessive; thus, respondent would have been entitled to same. Finally, the committee found that the judgment awarding the attorney’s fees was rendered in open court in 1995, more than ten years before the ODC filed formal charges against respondent.

Based on these findings, the committee determined that violations of Rules 1.5(a) and 8.4(a) of the Rules of Professional Conduct were not proven by clear and convincing evidence. The committee then declined to address the alleged violation of Rule 1.15 for respondent’s negligent conduct in failing to obtain judicial approval of his fee and, instead, dismissed the charges on the basis they are prescribed pursuant to Supreme Court Rule XIX, § 31.

Count IV — The committee accepted the facts as stipulated to by the parties. Additionally, the committee found that Mr. Williams suffered no harm as a result of the check being dishonored, and respondent’s actions were negligent with respect to the insufficiency of funds. The committee could not determine the source of the funds used to ultimately pay Mr. Williams’ filing fee and, as such, could not find that respondent converted funds in this particular instance. However, respondent negligently converted client funds in other instances, evidenced by various overdrafts in his trust account, and knowingly failed to | i2reconciIe his trust account. The conversion was not for respondent’s personal use but was conversion from one client to another.

Based on these findings, the committee determined that respondent violated Rules 1.15 and 8.4(a) of the Rules of Professional Conduct. The committee further determined that the ODC did not prove a violation of Rules 1.5 and 8.4(d).

Count V — The committee made factual findings consistent with the underlying facts described above. Additionally, the committee found that Mr. Hills paid respondent the amount he contends he and respondent agreed on as the attorney’s fees. As such, respondent did not actually collect more than Mr. Hills agreed to pay. Based on the work respondent performed, a $3,818.14 fee would be excessive, and respondent attempted to collect an excessive fee. Certain items contained in the itemized bill are not items that can be properly charged to a client. Respondent acted knowingly in submitting the itemized bill for an excessive fee that included improperly charged items. A potential for harm existed; however, because Mr. Hills did not remit additional funds, no actual harm occurred.

Based on these findings, the committee determined that respondent violated Rule 8.4(a) of the Rules of Professional Conduct by attempting to collect an excessive fee, but he did not violate Rule 1.5 by doing so (see footnote 2, supra). The committee also did not find a violation of Rule 1.4 because Mr. Hills did not testify at the formal hearing regarding respondent’s alleged failure to communicate with him. Finally, the committee determined that respondent did not violate Rules 8.4(c) and 8.4(d).

Count VI — The committee accepted the facts as stipulated to by the parties. Additionally, the committee found that respondent’s bills reflect items that cannot be charged to a client insofar as they constitute “overhead.” Respondent’s bill totaling $33,761.65 was excessive or unreasonable. However, the services rendered to the Browns exceeded the payments made to respondent. By letter 1 isdated February 11, 2004, respondent charged and attempted to collect an unreasonable fee. By letter dated September 8, 2004, respondent charged and attempted to collect an unreasonable fee. However, respondent did not make an agreement to collect an unreasonable fee because no agreement was reached. Respondent’s conduct was negligent.

Based on these findings, the committee determined that respondent violated Rules 1.5 and 8.4(a) of the Rules of Professional Conduct. The committee did not address the alleged Rule 8.4(c) violation.

Count VII — The committee accepted the facts as stipulated to by the parties. Additionally, the committee found that Lewy Physical Therapy was deprived of its funds for approximately one year and ten months. However, the funds were ultimately tendered. The committee further found that respondent knowingly failed to timely notify Lewy Physical Therapy of his receipt of the funds and knowingly failed to timely remit the funds.

Based on these findings, the committee determined that respondent violated Rules 1.15(d) and 8.4(a) of the Rules of Professional Conduct. The committee did not find a violation of Rule 8.4(d).

Count VIII — The committee made factual findings consistent with the underlying facts described above. Additionally, the committee found that, whether respondent’s statement about his reason for removing Caucasian jurors was true or not, he knew or should have known that the only possible result of his statement would be for the trial judge to order a mistrial.

Based on these findings, the committee determined that respondent violated Rules 8.4(a) and 8.4(d) of the Rules of Professional Conduct. However, the committee determined that the ODC failed to establish a violation of Rule 1.1 by 114clear and convincing evidence. Additionally, the committee determined that respondent lacked the requisite intent for a Rule 3.5 violation.

Count IX — The committee found that five days after respondent enrolled as counsel of record for Mr. Harris, a motion to dismiss his case was filed predicated on a failure to exhaust administrative remedies. The motion was set without oral argument. Thereafter, a motion for summary judgment was filed. The committee determined that beyond this information, there was not sufficient documentary evidence or testimony in the record upon which to make an assessment of the reasonableness of respondent’s actions in failing to respond to these motions.

Based on these findings, the committee determined the ODC failed to carry its burden of establishing by clear and convincing evidence that respondent violated any of the Rules of Professional Conduct as charged.

Count X — The committee made factual findings consistent with the underlying facts described above. Additionally, the committee found that respondent fully earned the $500 fee. The committee also noted that Mr. Lewis did not testify at the formal hearing.

Based on these findings, the committee determined the ODC failed to carry its burden of establishing by clear and convincing evidence that respondent violated Rules 1.1(a), 1.2, 1.3, 1.4, or 8.4(a) of the Rules of Professional Conduct. The committee did determine, however, that respondent violated Rule 8.1(c) as charged. Regarding the Rule 8.1(c) violation, the committee noted that several witnesses, including respondent, testified about damage done to respondent’s office around the time of the complaint. The committee determined that, while the damage does not excuse respondent’s failure to respond to the complaint, it does provide a reasonable basis for why respondent felt he could not defend himself.

Count XI — The committee made factual findings consistent with the underlying facts described above. Additionally, the committee determined that Mr. | ifiValmont’s testimony was credible. The committee also found that respondent was not hired to represent Mr. Valmont in his criminal defense. Furthermore, respondent’s charge of $500 in “expenses” to travel from Baton Rouge, Louisiana to Cottonport, Louisiana to meet with Mr. Valmont was an unreasonable amount. Respondent also failed to explain to Mr. Valmont the purpose of the $500 payment, and he did not provide Mr. Valmont with an accounting. Respondent acted negligently in charging an unreasonable fee for travel expenses. Respondent acted knowingly in neglecting Mr. Valmont’s legal matter, failing to communicate with him, and failing to provide him with an accounting of the $500. Respondent’s conduct caused actual harm to Mr. Valmont in that his claim prescribed.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as charged, with the exception of Rule 8.4(c). The committee determined that respondent lacked the requisite intent for a Rule 8.4(c) violation.

Count XII — The committee made factual findings consistent with the underlying facts described above. Based on these findings, the committee determined that respondent violated Rule 8.4(a) of the Rules of Professional Conduct. However, the committee found no evidence in the record to support the ODC’s allegation that respondent also violated Rules 8.1(c) and 8.4(c).

Count XIII — The committee made factual findings consistent with the underlying facts described above. The committee also noted that Mr. Searls did not testify at the formal hearing, and the ODC called no other witnesses to testify regarding this count. Respondent admitted that he did not respond to the disciplinary complaint because he could not locate Mr. Searls’ file and, therefore, could not prepare a substantive response.

h Rased on these findings, the committee determined that respondent violated Rule 8.1(c) of the Rules of Professional Conduct. However, the committee found no violation of Rules 1.8, 1.4, and 8.4(a).

Count XIV — The committee accepted the facts as stipulated to by the parties. Additionally, the committee adopted the findings in Ms. Willis’ report that respondent commingled personal funds with client funds. The committee also found that respondent routinely failed to reconcile his trust account statement and consistently placed personal funds into his trust account. With respect to the commingling of funds, there was a clear pattern of misconduct over time in that respondent repeatedly failed to hold his clients’ funds separate from his own. Although none of respondent’s clients were harmed, the potential for client harm existed. Respondent knowingly commingled funds and intentionally failed to cooperate with the ODC.

Based on these findings, the committee determined that respondent violated Rule 8.4(a) of the Rules of Professional Conduct. However, the committee determined the ODC failed to prove that respondent violated Rules 1.5, 8.4(c), and 8.4(d). The committee did not address the alleged violation of Rule 8.1(c).

The committee then determined that the “heartland” of respondent’s misconduct involves (1) repeated commingling and mishandling of his trust account and (2) repeated instances of collecting or attempting to collect excessive fees. For the most part, respondent acted knowingly. As such, based on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is suspension.

In aggravation, the committee found the following factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law (admitted 1972), and indifference to making | ^restitution. In mitigation, the committee found the absence of a prior disciplinary record, character or reputation, and a delay in the disciplinary proceedings.

In light of the above findings, the committee recommended that respondent be suspended from the practice of law for three years. The committee further recommended the following: (1) respondent pay $500, plus interest, to Mr. Valmont, (2) respondent pay $1,605, plus interest, to Mr. Wiley, and (8) respondent submit the fee dispute with Ms. Matthews’ estate to the Louisiana State Bar Association’s Lawyer Fee Dispute Resolution Program.

Respondent filed an objection to the sanction recommended by the committee, asserting it is too harsh.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee was correct in accepting the facts as stipulated to by the parties. The board also determined that the committee’s additional factual findings are not manifestly erroneous. Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows:

Count I — Respondent violated Rules 1.15 and 8.4(a) as charged. The committee erred in dismissing the charges as prescribed because the disciplinary complaint was filed within ten years of the misconduct at issue. Therefore, Supreme Court Rule XIX, § 31 does not apply.

Count II — As found by the committee, respondent violated Rules 1.5(a), 1.15, 8.4(a), and 8.4(c). However, there is insufficient evidence to prove violations of Rules 1.4,1.8, and 1.16.

Count III — Respondent violated Rules 1.15 and 8.4(a) because he did not seek judicial approval prior to withholding his fees. However, he did not violate Rule 1.5(a) because attorney’s fees that are awarded judicially and/or are allowed | ]Sby law cannot be deemed excessive. The committee erred in dismissing the charges as prescribed because the disciplinary complaint was filed within ten years of the misconduct at issue. Therefore, Supreme Court Rule XIX, § 31 does not apply.

Count IV — As found by the committee, respondent violated Rules 1.15 and 8.4(a). However, the committee correctly concluded that the ODC failed to carry its burden of proof regarding Rules 1.5 and 8.4(d).

Count V— Respondent violated Rules 8.4(a) and 8.4(c) because the fees he attempted to collect were excessive and because the amount he sought to collect in May 2003 increased substantially from the amount he demanded in April 2003. However, as found by the committee, the record does not contain sufficient evidence to support a finding that respondent violated Rules 1.4,1.5, and 8.4(d).

Count VI — As found by the committee, respondent violated Rules 1.5 and 8.4(a). However, he did not violate Rule 8.4(c) because his conduct was negligent.

Count VII — As found by the committee, respondent violated Rules 1.15(d) and 8.4(a) but not Rule 8.4(d).

Count VIII — As found by the committee, respondent violated Rules 8.4(a) and 8.4(d) but not Rules 1.1 and 3.5.

Count IX — As found by the committee, the ODC failed to carry its burden of proof with respect to the allegations of misconduct in this count.

Count X — As found by the committee, the ODC established only a violation of Rule 8.1(c).

Count XI — Respondent violated Rules 1.3, 1.4, 1.5, 3.2, 8.1(c), and 8.4(a) but not Rule 8.4(c).

Count XII — The committee’s findings and conclusions regarding rule violations are not manifestly erroneous; thus, the board adopted same.

| wCount XIII — The board adopted the committee’s conclusion that the ODC established only a violation of Rule 8.1(c).

Count XIV — The board adopted as correct the committee’s findings and conclusions regarding rule violations. Like the committee, the board did not address the alleged violation of Rule 8.1(c).

The board then determined that respondent violated duties owed to his clients, the public, the legal system, and the legal profession. He acted negligently in failing to maintain and reconcile his trust account over time. However, in certain client matters, respondent acted knowingly and, at times, intentionally. On occasion, he caused actual harm to clients. However, the harm appears minimal, and the problems were quickly resolved. The board agreed with the committee that the baseline sanction is suspension. The board also agreed with the aggravating and mitigating factors found by the committee.

Turning to the issue of an appropriate sanction, the board concluded that the committee’s recommended sanction is too harsh. Like the committee, the board concentrated on the “heartland” of respondent’s misconduct, which it felt was his negligent mismanagement of his trust account. After considering case law addressing similar misconduct, a majority of the board recommended that respondent be suspended from the practice of law for one year and one day, with all but six months deferred, followed by two years of supervised probation with the following conditions: (1) respondent provide $500 in restitution to Mr. Valmont; (2) respondent provide $1,605 in restitution to Mr. Wiley; and (3) respondent arbitrate the fee dispute at issue in the Matthews Succession matter. Two board members dissented and would recommend a suspension from the practice of law for one year and one day, with no time deferred.

12pThe ODC filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

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 (Lall/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Prior to addressing the merits, we must first determine whether any of the formal charges are prescribed. The hearing committee determined that Counts I and III, which involved negligent conduct occurring between 1996 and 2000, were prescribed under the ten-year prescriptive period set forth in Supreme Court Rule XIX, § 31. However, the board rejected this conclusion, finding the complaints and disciplinary investigations were commenced within ten years of the misconduct. Respondent argues the board erred in this regard, and also argues that Count II of the formal charges should be dismissed as prescribed.

Supreme Court Rule XIX, § 31 provides that “[a] disciplinary complaint, or the initiation of a disciplinary investigation with regard to allegations of attorney misconduct, where the mental element is merely negligence, shall be subject to a prescriptive period of ten years from the date of the alleged offense.” For this liberative prescriptive period to apply, two elements must be established: (1) the 121 disciplinary complaint or investigation must be instituted within ten years of the underlying conduct, and (2) the lawyer must have acted negligently. See In re: Stanford, 10-1547 (La.12/17/10), 50 So.3d 151.

In the instant case, we find the first element is not satisfied as to any of the first three counts of the formal charges. In Count I, both the misconduct and the filing of the disciplinary complaint occurred in July 2000. In Count II, the misconduct began in June 2000 and continued through February 2002; the disciplinary complaint was filed in August 2001. In Count III, the misconduct occurred in December 1996, and the disciplinary complaint was filed in May 2002. Clearly, these three complaints were filed well within ten years of the date of the underlying conduct. Therefore, the formal charges are not prescribed.

Turning to the merits, the record of this matter indicates that respondent mishandled his client trust account, resulting in commingling and conversion, collected an excessive fee, failed to timely turn over property and funds belonging to third parties, failed to seek approval of his attorney’s fees in a workers’ compensation matter, charged clients his hourly fee for services such as typing and updating his time sheet, admitted to removing Caucasian jurors from a jury panel solely because of their race, which caused a mistrial, failed to refund unearned fees, and failed to cooperate with the ODC in its investigations. Based on these facts, respondent violated the Rules of Professional Conduct as found by the disciplinary board. Additionally, the record supports a finding that respondent violated Rule 8.1(c) in Count XIV 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 [22So.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).

As recognized by both the committee and the board, the majority of respondent’s conduct revolves around the improper management of his trust account. While much of respondent’s misconduct was negligent, he also acted knowingly and at times intentionally. His actions caused actual harm to his clients, third parties, and the legal system.

The applicable baseline sanction in this matter is suspension. The record supports the aggravating and mitigating factors found by the committee and adopted by the board.

Considering all the circumstances, we find the appropriate sanction for respondent’s misconduct in this case is a three-year suspension, with all but one year deferred. Following the active portion of his suspension, respondent shall be placed on supervised probation for a period of two years, subject to the following conditions: (1) respondent shall attend the Ethics School and Trust Accounting School offered by the Louisiana State Bar Association’s Practice Assistance Counsel; (2) respondent shall pay $500, plus interest, to Tracey Valmont; (3) respondent shall pay $1,605, plus interest, to Christopher Wiley; and (4) respondent shall submit his fee dispute with the Estate of Fannie Matthews to the Louisiana State Bar Association’s Lawyer Fee Dispute Resolution Program. We caution respondent that any violation of the conditions of probation, or any other misconduct during the probationary period, may be grounds for making the deferred portion of the suspension ex-ecutory, or imposing additional discipline, as appropriate.

lajDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Otha Curtis Nelson, Sr., Louisiana Bar Roll number 9940, be and he hereby is suspended from the practice of law for three years. It is further ordered that all but one year of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on supervised probation for two years, subject to the conditions set forth herein. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . In the formal charges, the ODC alleged that respondent failed to respond to notice of the disciplinary complaint related to this count. However, the ODC failed to provide documentary evidence or testimony in support of this allegation.

      . The committee reasoned that, at the time of the misconduct, charging an unreasonable fee was not specifically prohibited by Rule 1.5. Thus, the committee determined that respondent did not expressly violate Rule 1.5 by charging and attempting to collect unreasonable fees but did violate Rule 8.4(a) in doing so.

      . The committee noted that, during the formal hearing, respondent offered a more race-neutral explanation of his "racial reasons” for excluding Caucasian jurors when he indicated that race may be a component but is not the only component.

      . The board actually recommended that respondent provide $1,650 in restitution to Mr. Wiley. However, this appears to be a typographical error as the record indicates that respondent owes only $1,605 in restitution to Mr. Wiley.


text:
    In re ZACCARIA Jr., Frank R.
    No. 2014-OB-1704.
    Supreme Court of Louisiana.
    Aug. 22, 2014.
   ORDER

L Considering the Joint Petition for Transfer to Active Status filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that Frank V. Zacea-ría, Jr., Louisiana Bar Roll number 13772, be and he hereby is reinstated to active status pursuant to Supreme Court Rule XIX, § 22(G). This order shall be effective immediately.

FOR THE COURT:

/s/ Jefferson D. Hughes III Justice, Supreme Court of Louisiana