author: Wetherell, J.

text:
    LAKE CITY FIRE & RESCUE ASSOCIATION, LOCAL 2288, International Association of Fire Fighters, Appellant, v. CITY OF LAKE CITY, Florida, Appellee.
    No. 1D17-2965
    District Court of Appeal of Florida, First District.
    March 8, 2018
    Paul A. Donnelly and James H. Sullivan, III of Donnelly & Gross, Gainesville, for Appellant.
    Eric J. Holshouser and Michael J. Lufkin of Buchanan Ingersoll & Rooney PC, Jacksonville, for Appellee.
   Wetherell, J.

Appellant (the union) seeks review of the final judgment which vacated the portion of an arbitration decision that reduced the discipline imposed by Appellee (the city) on a firefighter. We affirm because the trial court correctly determined that the arbitrator exceeded his authority by reducing the discipline.

I

The union and the city entered into a collective bargaining agreement (CBA) covering the city's non-supervisory fire and rescue personnel. The CBA provides that the city retains its right "to suspend, demote, discharge or take other disciplinary action against employees for just cause" and it includes a grievance procedure for challenging disciplinary action taken by the city. The grievance procedure includes a right to arbitration, but the scope of the arbitration is expressly circumscribed by section 16(c) of article 26 of the CBA, which provides: "In the case of a grievance arising from a discipline, the arbitrator shall not have the authority to alter or amend the discipline, but may only determine whether the employee engaged in the misconduct alleged." Additionally, the arbitrator's authority to interpret the CBA is expressly limited by section 14 of article 26 of the CBA, which provides: "The arbitrator, in reaching a ruling, may not so interpret the specific provisions of this Agreement that the practical result is a modification of any of its terms, nor may he add or delete from those provisions as set forth in the Agreement."

In 2015, the union filed a grievance challenging the city's termination of a firefighter for misconduct. The case proceeded to arbitration, and after the arbitration hearing, the arbitrator determined that the firefighter "engaged in totally inappropriate behavior" amounting to "serious misconduct." However, the arbitrator also determined that the discipline imposed by the city was "excessive," and he directed the city to reinstate the firefighter with back pay, subject to a 90-day unpaid disciplinary suspension.

The city filed a circuit court action to vacate the portion of the arbitration decision that reduced the firefighter's discipline. The city argued that the arbitrator exceeded his authority under the CBA by reducing the discipline. The trial court agreed and vacated the portion of the arbitration decision that reduced the firefighter's discipline. The court thereafter entered a final judgment confirming the arbitration decision as modified to reflect the denial of the grievance based on the arbitrator's finding that the firefighter committed misconduct warranting discipline. The effect of the final judgment was that the firefighter's termination was upheld.

This appeal followed.

II

A trial court's authority to vacate an arbitration decision is limited to the grounds set forth in section 682.13(1), Florida Statutes. Schnurmacher Holding, Inc. v. Noriega , 542 So.2d 1327, 1328 (Fla. 1989). Paragraph (d) of the statute provides that the decision shall be vacated "if ... [a]n arbitrator exceeded the arbitrator's powers." § 682.13(1)(d), Fla. Stat. (2015). "[A]n arbitrator exceeds his or her power under [paragraph (d) ] when he or she goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration." Schnurmacher Holding , 542 So.2d at 1329. The question of whether the arbitrator exceeded his powers is a question of law that we review de novo . Nash v. Fla. Atl. Univ. Bd. of Trs. , 213 So.3d 363, 366 (Fla 4th DCA 2017).

The rules governing contractual construction apply to the interpretation of arbitration provisions such as the one in the CBA in this case. Seifert v. U.S. Home Corp. , 750 So.2d 633, 636 (Fla. 1999). "The cardinal rule of contractual construction is that when the language of the contract is clear and unambiguous, the contract must be interpreted and enforced in accordance with its plain meaning." Columbia Bank v. Columbia Developers, LLC , 127 So.3d 670, 673 (Fla. 1st DCA 2013) ; see also Ferreira v. Home Depot/Sedgwick CMS , 12 So.3d 866, 868 (Fla. 1st DCA 2009) ("Contracts are to be construed in accordance with the plain meaning of the words contained therein, and it is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties.").

Here, the CBA clearly and unambiguously circumscribes the arbitrator's power in cases arising from disciplinary action. The only issue the arbitrator has power to determine is whether the firefighter "engaged in the misconduct alleged," and the arbitrator has no authority to "alter or amend the discipline" imposed based on that misconduct. Accordingly, in this case, once the arbitrator determined that the firefighter committed the misconduct alleged by the city, he was without power to reduce the discipline imposed by the city.

We reject the union's argument that the scope of the arbitrator's authority under the CBA necessarily includes a determination of the severity of the discipline because the CBA references a "just cause" standard for disciplinary action. The fatal flaw in this argument is that the CBA does not authorize the arbitrator to determine whether there is just cause for the discipline imposed by the city ; instead, the CBA only authorizes the arbitrator to determine the fact necessary for the city to have just cause to impose any discipline -i.e. , whether the firefighter engaged in the misconduct alleged. Had the parties intended for the arbitrator to determine the appropriate discipline for proven misconduct-or, as the arbitrator framed the issue in this case, "whether there was just cause for the termination and, if not, what shall be the remedy"-the CBA could have been easily written to say so.

We recognize that in Raynor v. Florida State Lodge , 987 So.2d 152 (Fla. 1st DCA 2008), the court construed CBA language similar to that in article 26, section 16(c) of the CBA in this case to authorize the arbitrator to consider the severity of the discipline imposed by the employer in determining whether that discipline was justified. However, Raynor is distinguishable because the CBA in this case not only expressly limits the scope of the arbitration to a determination of whether the firefighter committed the misconduct alleged, but it also expressly precludes the arbitrator from interpreting the CBA in a way that adds, deletes, or has the practical effect of modifying any of the terms in the CBA. Accordingly, unlike Raynor (and the other cases relied on by the union ), the arbitrator in this case did not have the authority to interpret the CBA to authorize him to determine whether the discipline imposed by the city was justified because that interpretation effectively reads out of the CBA the language stating that "the arbitrator shall not have the authority to alter or amend the discipline."

III

In sum, because the arbitrator exceeded his authority when he reduced the discipline imposed by the city for the firefighter's misconduct, the trial court did not err when it vacated that portion of the arbitration decision. Accordingly, we affirm the final judgment confirming the arbitration decision as modified by the trial court.

AFFIRMED .

Rowe and Jay, JJ., concur.

      We summarily reject the union's argument that the city waived this issue at the arbitration hearing.

      See , e.g. , Corpion v. Jenne , 869 So.2d 660, 660-61 (Fla. 4th DCA 2004) (explaining that the arbitrator had the authority to reduce the discipline imposed by the employer because the CBA in that case specifically authorized the arbitrator "to determine if there was 'just cause' to demote [the employee]"); Simmons v. City of Avon Park , 788 So.2d 1076, 1078 (Fla. 2d DCA 2001) (explaining that the arbitrator had the authority to determine the appropriate discipline for the employee because, under the CBA in that case, the "disciplinary action" was the focus of the grievance provisions); Brooks v. City of Tallahassee , 778 So.2d 1051 (Fla. 1st DCA 2001) (noting that the CBA in that case expressly "conferred authority on the arbitrator ... to determine an appropriate remedy for a violation of the [CBA]"); Commc'ns Workers of Am., AFL-CIO, Local 3172 v. City of Largo , 463 So.2d 454, 456 (Fla. 2d DCA 1985) (explaining that the arbitrator had the authority to reduce the discipline imposed by the employer because the CBA in that case expressly "empowers him with the authority to uphold the discharge or reinstate the employee"); Amalgamated Transit Union, Local 1593 v. Hillsborough Area Reg'l Transit Auth. , 450 So.2d 590, 592 (Fla. 2d DCA 1984) (reversing judgment that rejected arbitrator's interpretation of the scope of his authority under the CBA to reduce the discipline imposed by employer because the CBA in that case "charge[d] the arbitrator with interpreting that agreement"); McDonald v. Hardee Cty. Sch. Bd. , 448 So.2d 593, 595 (Fla. 2d DCA 1984) (rejecting argument that arbitrator exceeded his authority in modifying the employee's discipline because the parties stipulated that the issue for the arbitrator to resolve was whether the employee was discharged for just cause and, if not, "what shall be the appropriate remedy?").


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Robert STERN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2718
    District Court of Appeal of Florida, Second District.
    Opinion filed March 9, 2018.
    Robert Stern, pro se.
   MORRIS, Judge.

Robert Stern appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm for the reasons expressed below.

In February 2017, Stern filed his 3.800(a) motion, claiming that his life sentence for sexual battery is illegal under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Atwell v. State, 197 So.3d 1040 (Fla. 2016). He alleged that he was sixteen years old when the offense was committed in 1967 and that his sentence of life in prison for a nonhomicide offense is illegal.

The postconviction court denied Stern's motion, concluding that the law he relies upon is not applicable to him:

[Stern] does not claim or state that his sentence is in anyway comparable to Atwell's, such that his sentence is the practical equivalent of a life sentence without the possibility of parole. However, as the state's response and attachment's show, [Stern] has actually been released on parole on two prior occasions, and has a current presumptive parole release date approximately 10 years from the date of this order. [Stern's] sentence not only has actually provided him with multiple meaningful opportunities for release, but continues to do so. Therefore, Atwell and the preceding case law upon which it was based are not applicable to [Stern].

In Graham, the Supreme Court held that a juvenile's sentence of life in prison without the possibility of parole for a nonhomicide offense is unconstitutional. 560 U.S. at 74, 130 S.Ct. 2011. In Miller, the Supreme Court further held that a sentencing scheme that mandates a juvenile's sentence of life in prison without the possibility of parole for a homicide offense is unconstitutional. 132 S.Ct. at 2469. In Henry v. State, 175 So.3d 675, 680 (Fla. 2015), the Florida Supreme Court held that Graham prohibited an aggregate ninety-year juvenile sentence for a nonhomicide offense because it did not afford a meaningful opportunity for the juvenile to obtain release. In Atwell, 197 So.3d at 1050, the Florida Supreme Court held that a juvenile's mandatory sentence of life in prison for murder, with the possibility of parole after twenty-five years, was unconstitutional because his presumptive parole release date under the applicable parole guidelines was not for 140 years and his sentence thus resembled a mandatorily-imposed sentence of life without parole.

The above holdings are not applicable to Stern because he was sentenced to life in prison with the possibility of parole and he was released on parole twice. Recently, the Third District rejected the same claim that Stern made in his rule 3.800(a) motion. See Rooks v. State, 224 So.3d 272 (Fla. 3d DCA 2017). The defendant in Rooks pleaded guilty to sexual battery in 1971 and was sentenced to life in prison with the possibility of parole. He was released on parole twice but violated parole and returned to prison. Id. at 273. He claimed he was entitled to resentencing under Graham/ Miller and Atwell/ Henry. The Third District noted that Miller and Graham"established the threshold which must be met before an Eighth Amendment challenge can be raised in this context: the juvenile offender must be sentenced to life without the possibility of parole." Id. at 275. The court concluded that the defendant could not meet this threshold "because he was not sentenced to life without parole, but rather was sentenced to life with parole." Id. at 276.

Turning to Atwell and Henry, the Rooks court held that those Florida cases were distinguishable because the defendants in those cases received either an "effective life without parole sentence" or an "aggregate ninety-year sentence which failed to afford a meaningful opportunity for early release during his natural life." Id. at 278. The Rooks court noted that "the parole system and guidelines applicable to Rooks provided broader discretion in determining whether and when he would be released," as evidenced by his release after serving only eight-and-a-half years of his life sentence. Id. The court reasoned that

[i]t would appear contrary to both logic and jurisprudence to hold that this case is controlled by the Graham/ Miller or Henry/ Atwell line of cases, given that Rooks cannot make the threshold showing that he received a life without parole sentence, a sentence that effectively resembles a life without parole sentence, or a sentence that failed to afford him a meaningful opportunity to obtain early release during his natural life.
Because Rooks' sentence cannot satisfy this threshold, we conclude that it is not subject to Eighth Amendment challenge under Graham/ Miller or Henry/ Atwell.

Id. at 279 (footnote omitted); see also Vennisee v. State, 42 Fla. L. Weekly D2170, 235 So.3d 947 (Fla. 3d DCA Oct. 11, 2017) (holding that defendant sentenced as a juvenile to life in prison with possibility of parole was not entitled to relief where he had been released on parole and his parole was revoked because he committed a new offense as an adult).

The First and Fourth Districts held similarly in Currie v. State, 219 So.3d 960 (Fla. 1st DCA 2017), and Rogers v. State, 223 So.3d 281 (Fla. 4th DCA 2017). In Currie, the defendant was sentenced to life in prison with the possibility of parole for the offense of sexual battery with a firearm.

219 So.3d at 960. The First District rejected his claim that he was entitled to be resentenced under Atwell and Henry because he "was afforded a meaningful opportunity to obtain release and, in fact, was released on parole when he was 25 years old" and even though he was reincarcerated, "he continue[d] to be considered for release on parole." Id. at 960. In Rogers, 223 So.3d at 281, the defendant was sentenced to life in prison with the possibility of parole for the offense of robbery. He was released on parole twice, both times ending back up in prison for new offenses. The Fourth District held that his sentence was not unconstitutional; he had "received more than what Graham requires" because "he had an opportunity for release and was in fact released from prison twice on parole." Id. at 282.

We adopt the reasoning in Rooks, Rogers, and Currie and hold that Stern is not entitled to resentencing for his nonhomicide offense because he has already been provided an opportunity for release. The postconviction court properly denied his rule 3.800(a) motion.

Affirmed.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: KELLY, Judge.

text:
    Lamarcus Antonio SLYDELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4983
    District Court of Appeal of Florida, Second District.
    Opinion filed March 14, 2018
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Lamarcus Slydell appeals from his judgment and sentences for carrying a concealed firearm and possession of a firearm by a convicted felon. He argues that it is legal to carry a concealed weapon in Florida if one has a permit to do so, and therefore a confidential informant's tip that he possessed concealed weapons without any allegations that he was engaged in criminal activity did not provide a reasonable suspicion for the investigatory stop; therefore, the trial court erred in denying his dispositive motion to suppress. We agree and reverse.

A confidential informant saw Slydell displaying several guns inside a club. The informant did not know Slydell but described him and the guns to a Sarasota County detective and reported that the guns were concealed in Slydell's gym shorts. When Slydell left the club the detective notified two uniformed police officers on patrol in the area that a black male with long dreads, glasses, a black shirt, black shorts with red trim, and black sandals, was in possession of three firearms and that he was walking westbound on the sidewalk. The officers approached Slydell, who fit the detective's description, and observed that a heavy object was weighing down Slydell's shorts pocket. The officers ordered Slydell to the ground at gunpoint and then saw the barrel of a gun in his pocket. The officers retrieved two semiautomatic handguns and a revolver from Slydell. The trial court denied Slydell's motion to suppress on the grounds that the officers had a very detailed tip from a reliable informant describing Slydell and his guns, and the officer saw the outline of a gun in Slydell's pocket, thus corroborating the tip.

Slydell contends that the trial court erred in denying his motion to suppress because neither the tip nor the observation of the gun in his pocket gave the officer a reasonable suspicion to detain him, citing Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2009). The State counters that the reliability of the confidential informant and the accuracy of the tip provided a reasonable suspicion, if not probable cause, for the stop.

In Regalado, an officer received information from a patron in a restaurant that Regalado had raised his shirt and exposed a gun in the waistband of his pants. Id. at 601. The officer stopped Regalado at gunpoint outside the restaurant and ordered him to the ground on the basis of the tip. In reversing Regalado's conviction for carrying a concealed weapon, the Fourth District noted that possession of a concealed firearm is legal in Florida if the carrier has a concealed weapons permit. Id. at 604. The court reasoned that although the officer observed a bulge that resembled a gun in Regalado's waist area, no facts were presented to show that Regalado's carrying of a concealed weapon was without a permit and thus illegal. The court stated, "In this case, neither the anonymous tip nor the officer's observations revealed any suspicion of past, present, or future criminal activity. Therefore, there was no authority for the officer to pull his gun and order the defendant to the ground." Id. at 606-07.

"In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity." Popple v. State, 626 So.2d 185, 186 (Fla. 1993) ; see also § 901.151(2), Fla. Stat. (2016) ; United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding that the police may "make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity"). Reasonable suspicion of criminal activity may arise from informants' tips, "but whether tips can provide reasonable suspicion depends upon both the quantity and quality of the information." Regalado, 25 So.3d at 603. As in Regalado, the only activity the informant reported to the detective was that Slydell was in possession of firearms. "[T]here is no firearm or weapons exception to the Fourth Amendment ...." J.L. v. State, 727 So.2d 204, 209 (Fla. 1998), aff'd, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). No matter how reliable the confidential informant or how detailed the description of Slydell and the guns, the tip did not allege any criminal activity, and in particular it did not reveal Slydell's status as a felon nor did it say whether he had a concealed weapons permit.

Upon encountering Slydell, the officers saw a bulge in Slydell's shorts pocket and presumed it was a gun based on the information given to them, but they did not observe any conduct that would constitute a crime or impending crime, they did not know he was a felon, and they did not ask Slydell any questions before ordering him to the ground. Whether Slydell had a concealed weapons permit, was "a fact that an officer cannot glean by mere observation." Regalado, 25 So.3d at 606 ; cf. Mackey v. State, 124 So.3d 176, 184-85 (Fla. 2013) (concluding that the officer had authority to detain the defendant and conduct a protective frisk to remove the weapon based on the officer's observation of a firearm in the defendant's pocket and the defendant's untruthful responses to questions about the firearm).

Accordingly, we reverse Slydell's convictions for carrying a concealed firearm and possession of a firearm by a felon.

Reversed.

SILBERMAN and LUCAS, JJ., Concur.


author: LAGOA, J.

text:
    Jesse LOOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2859
    District Court of Appeal of Florida, Third District.
    Opinion filed March 14, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

Appellant, Jesse Loor ("Loor"), appeals his final judgment of conviction and sentence, contending that the trial court should have allowed him to represent himself at trial. Because the trial court applied the incorrect legal standard in denying Loor his right to self-representation, we reverse the trial court's order denying Loor's request to waive counsel, and remand for a new trial and Faretta hearing.

I. FACTUAL AND PROCEDURAL HISTORY

On December 12, 2012, Loor was charged with one count of lewd and lascivious molestation of a person less than twelve (12) years of age under section 800.04(5)(b), Florida Statutes (2012), and one count of sexual battery on a victim less than twelve (12) years of age under section 794.011(2), Florida Statutes (2012). Both counts involved Loor's alleged conduct against his biological daughter, J.L. (a minor).

Throughout the proceedings below, Loor filed various pro se pleadings. Prior to trial, Loor filed a pro se Notice of Waiver of Counsel to discharge his appointed counsel so he could represent himself at trial. On November 26, 2013, the trial court held a pretrial hearing on Loor's notice. At the hearing, Loor's assistant public defender believed Loor was competent to represent himself, but the trial court expressed concerns and appointed a psychologist, Dr. Merry Haber ("Dr. Haber"), to evaluate Loor's competency.

Loor initially refused to speak with Dr. Haber without the presence of his appointed counsel, but subsequently changed his mind and sat for her evaluation. Upon completion of her evaluation, Dr. Haber reported the following findings: (1) Loor was not in distress; (2) Loor's "[a]ttention and concentration were intact, as well as all memory functions"; (3) "[h]is thought processes were coherent, productive, organized and goal-oriented with no loosening of associations or other overt disturbances"; and (4) he denied "paranoid, suicide and homicide ideation and hallucinations." Dr. Haber determined there was no evidence that Loor had a "major mental illness." However, Dr. Haber considered Loor "not competent to represent himself due to a lack of legal education and lack of rational understanding of the law."

On March 3, 2014, the trial court conducted a Faretta hearing. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The trial court informed Loor that he had a right to counsel, that counsel would be appointed to represent him if he could not afford his own, and explained the benefits of having counsel and the risks of self-representation.

On April 25, 2014, the trial court denied Loor's request to represent himself, finding that he was not mentally competent to conduct his own defense at trial. In its order, the trial court found that Loor suffered from "severe mental illness" based on: (1) "the nature of the crimes with which he [was] charged"; (2) how he "expresse[d] himself in the pleadings" he filed pro se; and (3) Dr. Haber's competency evaluation. In its order, the trial court also expressed concern that Loor's self-representation would disrupt "the orderly and dignified nature of the proceedings" and that Loor might not be "the best just [sic] of his own best interests."

The matter proceeded to trial, with Loor being represented by the Public Defender's office. Upon the trial's conclusion, the jury found Loor guilty on both counts, and the trial court sentenced him to concurrent life sentences. This timely appeal ensued.

II. STANDARD OF REVIEW

A trial court's determination of competency to waive counsel is reviewed for an abuse of discretion and will be upheld if supported by competent, substantial evidence. Larkin v. State, 147 So.3d 452, 464 (Fla. 2014).

III. ANALYSIS

On appeal, Loor contends that the trial court abused its discretion in denying his request to waive counsel. We agree. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that the Sixth Amendment guarantees a criminal defendant the right to proceed without counsel when he "voluntarily and intelligently elects to do so." Id. at 807, 95 S.Ct. 2525. The Court subsequently qualified the right to self-representation by adopting a competency limitation in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Under Edwards, states may insist on defendants being represented by counsel if they "suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves," even if they are competent to stand trial. Id. at 178, 128 S.Ct. 2379. The trial court is permitted to take "realistic account" of a defendant's mental capabilities, such as "[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illness." Id. at 176, 128 S.Ct. 2379.

In light of Edwards, the Florida Supreme Court amended Florida Rule of Criminal Procedure 3.111(d)(3) to provide that:

Regardless of the defendant's legal skills or the complexity of the case, the court shall not deny a defendant's unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself .

(emphasis added). In explaining the amendment, the Florida Supreme Court declined to limit the Faretta right to self-representation beyond the "narrow" exception recognized in Edwards. In re Amendments to Fla. Rule of Criminal Procedure 3.111, 17 So.3d 272, 274 & n.3 (Fla. 2009).

Accordingly, we must begin our analysis by first determining what constitutes "severe mental illness" under Edwards and under Rule 3.111(d)(3). In Edwards, the defendant suffered from schizophrenia and other personality disorders, which were found to constitute severe mental illness. 554 U.S. at 168, 128 S.Ct. 2379. In applying Edwards, courts have narrowly interpreted what qualifies as severe mental illness. For example, a defendant's misguided writing style, bizarre statements, and incorrect legal arguments alone are not evidence of "severe mental illness." Sturdivant v. State, 61 N.E.3d 1219, 1225 (Ind. Ct. App. 2016) ; see also United States v. Barajas-Cuevas, 492 Fed.Appx. 745, 748 (9th Cir. 2012) (finding that the defendant's "perplexing" behavior and obvious inability to present viable legal arguments was not enough to constitute severe mental illness). Hostile behavior is also not "severe mental illness." United States v. Glass, 357 Fed.Appx. 58, 60 (9th Cir. 2009). A mental evaluation diagnosing the defendant with a personality disorder was not severe mental illness to the point where he could not stand trial, United States v. Heard, 762 F.3d 538, 543 (6th Cir. 2014), and a history of depression and learning disabilities does not constitute severe mental illness, United States v. Rodgers, 537 Fed.Appx. 273, 275 (4th Cir. 2013). In contrast, in Holland v. Florida, 775 F.3d 1294 (11th Cir. 2014), the court found that the defendant had a severe mental illness where he suffered from "organic psychosis" from a brain injury, displayed memory loss, and often appeared incoherent. Id. at 1298-99, 1314.

Since the amendment to Rule 3.111(d)(3), Florida courts have likewise narrowly applied the Edwards exception to a defendant's right to self-representation. For example, in Larkin v. State, 147 So.3d 452 (Fla. 2014), the Florida Supreme Court determined a trial court did not abuse its discretion in granting defendant's request to waive counsel after multiple, proper Faretta inquires. Id. at 466. At the first Faretta hearing, the trial court determined that the defendant was competent to knowingly and intelligently waive counsel. Id. at 455. After the verdict, the trial court conducted another Faretta hearing, where the stand-by public defender stated that he thought the defendant suffered from a delusional disorder and requested the trial court to order a mental health evaluation. Id. at 460-61. Upon evaluation, the psychologist determined the defendant "did not suffer from psychotic disturbances," but his "understanding of the adversarial nature of legal proceedings, his capacity to disclose pertinent facts to counsel, and his capacity to testify relevantly and coherently were unacceptable." Id. at 461. Accordingly, the psychologist concluded that the defendant was incompetent to proceed. Id. The trial court was skeptical of the first report, so it ordered a second expert's report. See id. at 461-62. The second expert, a psychiatrist, examined the defendant and concluded he was competent to proceed, as he "fully appreciated the charges and the range of penalties, understood the adversarial nature of the legal process, and had the capacity to disclose pertinent facts to counsel." Id. at 462. After a third expert made similar findings as the second expert, the trial court again found the defendant competent to waive counsel. Id. Due to these evaluations and the events that occurred in trial, the Larkin court determined there was no abuse of discretion. Id. at 465.

Florida district courts of appeal have reversed lower court efforts to bar self-representation without a trial court finding the defendant suffered from severe mental illness. For example, in Williams v. State, 163 So.3d 694 (Fla. 4th DCA 2015), the court stated that "possession of legal skills or knowledge is not the legal equivalent to competency." Id. at 697. The Williams court held the trial court erred in denying the defendant's waiver of counsel solely based on lack of sufficient legal knowledge, as it did not make findings under Faretta that the defendant knowingly, voluntarily, and intelligently sought to waive his right to counsel, or under Edwards that the defendant suffered from severe mental illness. Id. at 697-98 ; see also Thompson v. State, 37 So.3d 939, 940 (Fla. 2d DCA 2010) (noting the record only showed that the court questioned the defendant "at some length about legal issues" before denying the request since it was a possible five-year sentence).

Significantly, once a trial court determines a defendant is competent to "knowingly and intelligently" waive his right to counsel and does not have severe mental illness, the Faretta inquiry is over. "[W]hether the defendant 'could provide himself with a substantively qualitative defense' " does not fall under the Edwards exception. Muehleman v. State, 3 So.3d 1149, 1160 (Fla. 2009) (quoting State v. Bowen, 698 So.2d 248, 251 (Fla. 1997) ); see also Wilson v. State, 201 So.3d 203, 204 (Fla. 2d DCA 2016) (holding the trial court erred by focusing only on the defendant's legal knowledge); Hooker v. State, 152 So.3d 799, 802 (Fla. 4th DCA 2014) ("The likelihood that a defendant would incompetently represent himself is not a valid reason to deny his unequivocal request for self-representation.").

In the instant case, there is no competent, substantial evidence that Loor had a severe mental illness at the time of his Faretta hearing. After evaluating Loor, Dr. Haber clearly stated in her report that "[t]here was no evidence" that Loor had a major or severe mental illness. Instead, Dr. Haber found Loor was "not competent to represent himself due to a lack of legal education and lack of rational understanding of the law." As discussed above, that is not the proper legal standard under Edwards or Rule 3.111(d)(3) to deny Loor his right to self-representation. The trial court should have disregarded Dr. Haber's conclusion that Loor was incompetent to represent himself solely based on his lack of legal education and rational understanding of the law. Cf. United States v. Green, 623 Fed.Appx. 571, 574 (2d Cir. 2015) (agreeing with the trial court's decision to ignore the psychiatrist's evaluation determining the defendant was incompetent largely based on his ignorance of legal principles). We therefore find that the trial court's reliance on Dr. Haber's finding that Loor was "not competent to represent himself due to lack of legal education" was error.

Because the trial court did not deny Loor's motion solely based on Dr. Haber's report, we turn to the additional findings that formed the basis of the trial court's ruling. First, the trial court concluded that the way Loor "expresse[d] himself in the pleadings" he filed pro se, i.e., "wildly erratic as to content," indicated severe mental illness. As discussed above, this fact alone is irrelevant to the Edwards inquiry, nor is there anything in the record to support the trial court's diagnosis of severe mental illness based on the content of Loor's pleadings. Second, the trial found that "the nature of the crimes with which [Loor was] charged"-forcible sexual intercourse with his minor daughter-was "symptomatic of 'severe mental illness.' " While these charges, if true, are indeed serious, this is not a proper factor to determine severe mental illness under Edwards or Rule 3.111(d)(3). Additionally, there is nothing in the record to support the trial court's diagnosis of severe mental illness based on the nature of the crime allegedly committed. Moreover, determining competency to waive counsel based on the charges filed against a defendant runs contrary to the principle that a defendant is "presumed innocent until proven guilty." Finally, the trial court expressed concern that Loor's self-representation would disrupt "the orderly and dignified nature of the proceedings" and that Loor might not be "the best just [sic] of his own best interests." Again, as stated in both Edwards and the amendment to Rule 3.111(d)(3), this is not the relevant legal standard.

Accordingly, we hold that the trial court abused its discretion in denying Loor the right to represent himself at trial as the trial court applied the incorrect legal standard in Loor's Faretta hearing.

IV. CONCLUSION

As the trial court incorrectly applied the legal standard stated in Edwards and Rule 3.111(d)(3), we find the trial court abused its discretion in determining Loor was not competent to waive his counsel. We reverse the trial court's order denying Loor's request to waive counsel and remand for a new trial and Faretta hearing.

Reversed and remanded for a new trial and Faretta hearing.

      These "basic tasks" include organization of defense, motion practice, arguing points of law, participating in voir dire, questioning witnesses, and addressing the court and jury. Edwards, 554 U.S. at 176, 128 S.Ct. 2379.


author: PER CURIAM.

text:
    Christopher Douglas HUNTOON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-950
    District Court of Appeal of Florida, Second District.
    Opinion filed March 14, 2018
   PER CURIAM.

Christopher Douglas Huntoon appeals the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. We reverse the denial of grounds two and five but affirm the denial of the remaining claims without comment.

A jury convicted Mr. Huntoon of possession of a firearm by a convicted felon and tampering with or fabricating physical evidence. Mr. Huntoon was sentenced to five years' imprisonment, which included a three-year mandatory minimum sentence as provided by section 775.087(2)(a), Florida Statutes (2013), for count one, and two years' community control followed by three years' probation for count two.

In ground two of his rule 3.850 motion, Mr. Huntoon alleged that trial counsel informed him that the State had extended a six-year plea offer, even though counsel failed to tell him that the State was going to withdraw the plea offer if he proceeded with a hearing on his pending motion to suppress. Without knowing that the State's offer would be withdrawn, Mr. Huntoon proceeded with the hearing on his motion to suppress. It was only after the denial of the motion to suppress that Mr. Huntoon was made aware of the fact that the State had withdrawn its plea offer. Finally, consistent with the requirements of Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013), Mr. Huntoon asserted that if counsel had properly advised him that the State would be withdrawing its plea offer, Mr. Huntoon would have foregone the hearing on his motion to suppress and would have accepted the State's offer. He also alleged that the State would not have withdrawn the offer, the court would have accepted the offer, and his sentence under the offer's terms would have been less severe than under the judgment and sentence that was in fact imposed.

In denying ground two of Mr. Huntoon's motion, the postconviction court adopted the State's response to this claim, finding that Mr. Huntoon failed to satisfy the third requirement of Alcorn. Specifically, the postconviction court found that the trial court could not have accepted a plea offer of six years' imprisonment that failed to include the mandatory minimum sentence for the possession of a firearm by a convicted felon, as the failure to impose the mandatory minimum sentence would constitute an illegal sentence. The postconviction court also found Mr. Huntoon's claim inherently incredible because while Mr. Huntoon alleged that he did not know that the State would withdraw the offer if the suppression motion went forward, Mr. Huntoon remained silent when he was first made aware of the withdrawal in open court.

In postconviction matters, courts must accept as true the factual allegations not refuted by the record. Kimbrough v. State, 886 So.2d 965, 981 (Fla. 2004) ; see also Fla. R. Crim. P. 3.850(f)(5). Further, where no evidentiary hearing is held below, we must accept the defendant's factual allegations to the extent they are not refuted by the record. Kimbrough, 886 So.2d at 981 (quoting Peede v. State, 748 So.2d 253, 257 (Fla. 1999) ).

The record attachments to the postconviction court's order are insufficient to refute Mr. Huntoon's claim. The postconviction court found that the trial court could not have accepted the six-year offer because it did not include the three-year mandatory minimum sentence required by section 775.087(2)(a), for the possession of a firearm by a convicted felon. There is nothing in the record before this court to indicate whether the six-year offer included the three-year mandatory minimum sentence, and the six-year offer does not, in and of itself, preclude the mandatory three-year sentence.

The postconviction court also found Mr. Huntoon's claim that he would have accepted the State's plea offer and foregone the hearing on his motion to suppress to be inherently incredible. We cannot conclude that Mr. Huntoon's claim is inherently incredible so as to allow the postconviction court to reject Mr. Huntoon's allegations without holding an evidentiary hearing. There is nothing inherently incredible about Mr. Huntoon's claim that he would have foregone the motion to suppress and accepted the State's plea offer had he been properly advised by counsel. Nor does his failure to speak up after hearing in open court that the State had withdrawn the plea offer make Mr. Huntoon's claim inherently incredible. In the context of ineffective assistance, "[p]rejudice ... is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice." Armstrong v. State, 148 So.3d 124, 126 (Fla. 2d DCA 2014) (emphasis omitted) (quoting Alcorn, 121 So.3d at 432 ). Thus, the events occurring after the hearing on his motion to suppress could not cure counsel's alleged failure to provide Mr. Huntoon with all of the information necessary to make an informed decision concerning the offer. See Wilson v. State, 189 So.3d 912, 913 (Fla. 2d DCA 2016).

In ground five of his rule 3.850 motion, Mr. Huntoon alleged that trial counsel was ineffective for failing to advise and explain to him that he could be found guilty of possession of a firearm by a convicted felon if the jury found him guilty of constructively possessing the firearms. Mr. Huntoon asserted that in discussing the plea agreement, trial counsel advised him that the State had to prove actual possession for him to be found guilty of possession of a firearm. Mr. Huntoon insisted that he would have accepted the six-year plea offer if he had been properly advised that the State was only required to prove constructive possession of the firearms. He also alleged that the State would not have withdrawn the offer, the court would have accepted the offer, and his sentence under the offer's terms would have been less severe than under the judgment and sentence that was in fact imposed.

In denying this claim, the postconviction court found that Mr. Huntoon could not demonstrate prejudice in this regard because the record indicated that the jury found Huntoon guilty of actual possession of a firearm and, therefore, counsel's alleged failure to advise regarding constructive possession could not be prejudicial.

The postconviction court incorrectly focused on what occurred after Mr. Huntoon rejected the plea offer. What happened after Mr. Huntoon rejected the plea offer did not rectify counsel's failure to provide Mr. Huntoon with all of the information necessary to make an informed decision on whether to accept the offer. See Armstrong, 148 So.3d at 126 (holding that in the context of ineffective assistance resulting in the rejection of a plea offer, prejudice is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice).

If counsel failed to explain to Mr. Huntoon the elements of the offense of possession of a firearm by a convicted felon, including the fact that possession could be proven by constructive or actual possession, counsel's failure would constitute deficient performance. See Fla. R. Crim. P. 3.171(c)(2)(B) ("Defense counsel shall advise defendant of ... all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant."); Parhm v. State, 227 So.3d 172, 174 (Fla. 2d DCA 2017) (reversing summary denial where record attachments did not refute defendant's claim "that his trial counsel failed to properly advise him of the elements of the charged offenses"). Mr. Huntoon has sufficiently alleged deficient performance and prejudice, and the postconviction court's order fails to refute this claim.

Accordingly, we reverse the order under review to the extent that it summarily denied grounds two and five and remand for the court to either attach portions of the record that conclusively refute the claims or hold an evidentiary hearing.

We warn Mr. Huntoon, as we have warned others before him, of the potentially harsh consequences he faces if he succeeds. "Even where trial counsel's misadvice results in a defendant's rejection of a favorable plea offer, the State is not required to reoffer its original plea on remand." Odegaard v. State, 137 So.3d 505, 508 (Fla. 2d DCA 2014).

Affirmed in part, reversed in part, and remanded.

VILLANTI, CRENSHAW, and MORRIS, JJ., Concur.


author: ROTHENBERG, C.J.

text:
    Milena R. BALMASEDA, Appellant, v. OKAY INSURANCE EXCHANGE OF AMERICA LLC, etc., et al., Appellees.
    No. 3D16-2633
    District Court of Appeal of Florida, Third District.
    Opinion filed March 14, 2018
    Law Offices of Sina Negahbani, and Sina Negahbani, for appellant.
    Jason M. Wandner, P.A., and Jason M. Wandner, for appellees.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
    ON MOTION FOR REVIEW
   ROTHENBERG, C.J.

Milena R. Balmaseda ("Balmaseda") seeks review of the trial court's order awarding appellate attorney's fees to the appellees, Okay Insurance Exchange of America LLC, etc., et al. (collectively, "Okay Insurance"), pursuant to this Court's order dated July 12, 2017. See Fla. R. App. P. 9.400(c) (stating that review of a lower tribunal's order assessing attorney's fees and costs acting under order of an appellate court "shall be by motion filed in the court within 30 days of rendition"); Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997) (providing that, pursuant to rule 9.400(c), "the correct method of seeking review of an order on appellate costs or attorney's fees is to file a motion for review in the appellate court in the proceeding that was the subject of the award, within 30 days of rendition of the order in the lower tribunal"). For the reasons that follow, we grant the motion for review and reverse the trial court's order awarding attorney's fees to Okay Insurance.

The procedural history and posture of the case are as follows. Balmaseda filed a pregnancy discrimination suit against Okay Insurance. Thereafter, Okay Insurance filed a counterclaim asserting that Balmaseda violated the two-year non-compete provision in her employment agreement, seeking both monetary damages and injunctive relief. Okay Insurance moved for a temporary injunction as to its counterclaim to enforce the non-compete provision in the employment agreement, which the trial court granted. Balmaseda appealed the entry of the temporary injunction, and this Court affirmed. Balmaseda v. Okay Ins. Exchange of Am., LLC, 228 So.3d 565 (Fla. 3d DCA 2017). On July 12, 2017, this Court entered an order granting Okay Insurance's motion for appellate attorney's fees and "remanded to the trial court to fix amount."

Following this Court's affirmance of the temporary injunction entered in favor of Okay Insurance, Balmaseda moved for a summary judgment as to Okay Insurance's counterclaim, arguing, in part, that Okay Insurance's right under the non-compete provision to seek a permanent injunction had expired, and Okay Insurance filed a competing motion for summary judgment as to its counterclaim. Following a hearing on the competing motions for summary judgment, the trial court entered an order: (1) denying Okay Insurance's motion for summary judgment; and (2) granting, in part, and denying, in part, Balmaseda's motion for summary judgment as to Okay Insurance's counterclaim. Specifically, the trial court's order provides that "Ms. Balmaseda has clearly shown that the counter-defendants are not entitled to injunctive relief. Final summary judgment entered in her favor as to injunctive request. Court denies summary judgment as to damages." Thus, because the trial court denied Balmaseda's motion for summary judgment as to Okay Insurance's claim for damages relating to Balmaseda's alleged violation of the non-compete provision, the issue of damages remains pending.

At a separate hearing, the trial court addressed this Court's July 12, 2017 order, which granted Okay Insurance's motion for appellate attorney's fees and "remanded to the trial court to fix amount." Following the hearing, the trial court entered an order awarding over $8,000 in appellate attorney's fees to Okay Insurance. The trial court, however, stayed the execution of the award to allow Balmaseda to "seek clarification of the entitlement award" from this Court. Balmaseda's timely motion for review followed.

In the motion for review, Balmaseda argues that the trial court should not have awarded Okay Insurance attorney's fees, although Okay Insurance prevailed in the interlocutory appeal before this Court, because Okay Insurance did not ultimately prevail in the lower tribunal. Based on our review, we conclude that this Court's instructions to the trial court "to fix amount" has caused the trial court to prematurely address and rule on Okay Insurance's motion for appellate attorney's fees because Okay Insurance's counterclaim has not yet been fully resolved.

We accept responsibility for the confusion that this Court's order granting Okay Insurance's motion for appellate attorney's fees following the interlocutory appeal may have caused. The order granting Okay Insurance's motion for attorney's fees should have provided that the fees were contingent on Okay Insurance ultimately prevailing in the lower tribunal on its counterclaim against Balmaseda. See Sabina v. Dahlia Corp., 678 So.2d 822, 822-23 (Fla. 2d DCA 1996) ("[I]n an interlocutory appeal, the party prevailing on the interlocutory appeal must also be the ultimately prevailing party in the trial court to be entitled to a final judgment of appellate fees from the interlocutory appeal."); see also Allstar Builders Corp. v. Zimmerman, 706 So.2d 92, 92 (Fla. 3d DCA 1998).

The posture of the case reflects that, although the trial court granted summary judgment in favor of Balmaseda as to Okay Insurance's request for injunctive relief, the trial court denied Balmaseda's motion for summary judgment as to Okay Insurance's request for damages, and thus, Okay Insurance's request for damages remains pending. Because the issue of damages remains pending, Okay Insurance's counterclaim has not yet been fully resolved and, thus, the trial court's fee judgment was prematurely entered. Accordingly, we grant Balmaseda's motion for review and reverse the trial court's order awarding appellate attorney's fees to Okay Insurance.

Motion for review granted; trial court's order awarding appellate attorney's fees reversed.


author: EDWARDS, J.

text:
    Susan HEDDEN, Appellant, v. Michael HEDDEN, Appellee.
    Case No. 5D17-427
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 16, 2018
    Joel C. Wilson, of Wilson Law Firm P.L., Orlando, for Appellant.
    Jonathan R. Simon, and Jill D. Simon, of The Orlando Family Firm, Orlando, for Appellee.
   EDWARDS, J.

Susan Hedden ("Former Wife") appeals the Amended Final Judgment dissolving her thirty-seven-year marriage to Michael Hedden ("Former Husband"). She argues that the trial court erred by not classifying all of the alimony awarded as permanent, relying solely on Former Husband's most recent financial affidavit to determine his ability to pay alimony, and not including future employer-made retirement contributions in Former Husband's income. There was no competent, substantial evidence to support an award consisting of both durational and permanent alimony. However, the trial court did not abuse its discretion by relying upon Former Husband's most recent financial affidavit and his testimony in determining his ability to pay alimony, nor by excluding employer-made retirement account contributions from Former Husband's income. Thus, we reverse in part and affirm in part.

For the majority of their marriage, Former Wife was a stay-at-home mother to the parties' two children. She has no special training, certificates, or degrees, and during those occasional periods when she was employed-most recently twelve years prior to trial-she earned approximately $20,000 per year. Her medical condition limits her ability to search for employment. She requested permanent alimony, but agreed that she could probably be employed at minimum wage.

Former Husband had been the "primary breadwinner" during the marriage, earning a relatively stable salary with fluctuating bonuses that led to his annual income being between $146,000 and $191,000 during the three years prior to trial. However, his employer replaced bonuses, which were based on the company's performance, with commissions, which were based upon Former Husband's personal performance. This change reduced Former Husband's overall annual income. In response to Former Wife's request for alimony, he pointed out that he was less than a year from the presumptive age of retirement and that each of them would receive approximately $500,000 in marital assets through equitable distribution.

In the final judgment of dissolution of marriage, the court found that Former Wife had a need for alimony and Former Husband had the ability to pay alimony. After the court imputed minimum wage to Former Wife, it ordered Former Husband to pay Former Wife $1000 per month in permanent periodic alimony and $2700 per month in durational alimony. The durational alimony was to cease when Former Wife reached the age of sixty-two. The court found that, at age sixty-two, Former Wife will be eligible to receive Social Security benefits based on Former Husband's income. Former Wife filed a motion for rehearing regarding several issues, but the court denied her request to revisit the issues on alimony.

Former Wife asserts that it is improper to award durational alimony when there is an ongoing need for alimony and argues that the trial court's decision contradicts the presumption of permanent alimony in long-term marriages.

"In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony." § 61.08(1), Fla. Stat. (2016). "There is a rebuttable presumption that permanent periodic alimony is appropriate after a long-term marriage." Motie v. Motie , 132 So.3d 1210, 1213 (Fla. 5th DCA 2014). "Subsection 61.08(4) establishes a 'rebuttable presumption' that a marriage having a duration of seventeen years or greater is a long-term marriage." Taylor v. Taylor , 177 So.3d 1000, 1003 (Fla. 2d DCA 2015).

It is undisputed that the parties had a long-term marriage. The trial court reviewed all ten factors identified in section 61.08(2) and found permanent alimony was appropriate, and that "no other form of alimony is fair and reasonable under the circumstances of the parties ...." See § 61.08(8), Fla. Stat. (2016).

Durational alimony, which the trial court also awarded, was created to be "an intermediate form of alimony between bridge-the-gap and permanent alimony." Nousari v. Nousari , 94 So.3d 704, 706 (Fla. 4th DCA 2012). "The purpose of durational alimony is to provide a party with economic assistance for a set period of time following ... a marriage of long duration if there is no ongoing need for support on a permanent basis," and it "may be awarded when permanent periodic alimony is inappropriate." § 61.08(7), Fla. Stat. (2016). According to the statutory language in section 61.08(7), a court cannot award durational alimony if permanent alimony is appropriate; however, section 61.08(1) and case law allow the trial courts to award both if justified. See Purin v. Purin , 158 So.3d 752, 753 (Fla. 2d DCA 2015) (suggesting that on remand the trial court should award both durational and permanent periodic alimony to minimize the need for future litigation should the wife's needs exceed her actual rather than earning ability after the period of durational alimony ended). Here, the trial court's finding of Former Wife's ongoing need for support made permanent periodic, rather than durational, alimony the appropriate choice following the thirty-seven-year marriage.

Furthermore, the trial court abused its discretion to the extent that ordering durational alimony was based on its prediction that Former Wife would have an increased income by seeking and receiving Social Security benefits when she reaches sixty-two years of age. Courts should base alimony awards "on current existing circumstances, and not on possibilities likely but as yet unrealized." Winn v. Winn , 669 So.2d 1155, 1157 (Fla. 5th DCA 1996). In Stark v. Stark , the trial court awarded the wife both durational and permanent alimony. 192 So.3d 632, 632 (Fla. 5th DCA 2016). However, this Court concluded "that the trial court abused its discretion in failing to make the entire $5000 alimony award ... permanent alimony" after finding that "the evidence failed to demonstrate that the Wife's need or the Husband's ability to pay would be materially different at the end of the durational alimony period than it was at the time the amended final judgment was entered." Id. at 633.

Although Former Wife may be eligible to receive Social Security when she reaches the age of sixty-two, it is unknown whether she will elect to receive partial benefits at that time or choose full benefits, which would only be available at a later time. The trial court properly found that it could not base the alimony award on Former Husband's future retirement, so it likewise should not diminish the alimony award based on the potential availability of future Social Security benefits. See, e.g. , Purin , 158 So.3d at 754 ("Retirement merely allows the trial court, upon proper motion, to revisit the parties' respective needs and ability to pay as they relate to the underlying alimony award."). Therefore, on the facts of this case, we conclude that the trial court abused its discretion when it failed to designate the entire alimony award as permanent periodic alimony.

Former Wife also argues that the trial court abused its discretion in basing its determination of Former Husband's ability to pay alimony solely on his most recent financial affidavit, when his income had been much higher in the recent past. Courts are required to consider all sources of a party's income when determining alimony. § 61.08(2)(i), Fla. Stat. (2016). When "a trial court calculates income for the purpose of awarding child support or alimony, it may not exclude from consideration bonuses that are regular and continuous." Drew v. Drew , 27 So.3d 802, 802 (Fla. 2d DCA 2010). When "bonuses are regular and continuous, it is an abuse of discretion to exclude them from consideration when making support awards." Parry v. Parry , 933 So.2d 9, 16 (Fla. 2d DCA 2006).

Here, the record is clear that Former Husband's prior income consisted of a salary with bonuses, while his current income consisted of a salary with lower commissions. The trial court did not disregard the commissions; rather, it properly considered Former Husband's financial affidavit and trial testimony as evidence of his current ability to pay alimony. Thus, we find no abuse of discretion.

Former Wife also asserts that the trial court should have included as ongoing income the matching 401(k) contributions made by Former Husband's employer to his retirement account. In determining the amount of alimony, "the needs of a spouse should be based on that spouse's financial situation after, not before, equitable distribution." Acker v. Acker , 904 So.2d 384, 389 (Fla. 2005). "Accordingly, the portion of a pension which has been equitably distributed to a spouse cannot be considered in determining the other spouse's ability to pay alimony because the other spouse obviously no longer has that portion of the marital asset." Id. Here, the trial court included the value of the retirement accounts at the time of the final hearing as part of the equitable distribution scheme and gave each party approximately fifty percent. Post-dissolution, Former Wife is not entitled to any contributions to Former Husband's retirement plans. See Bain v. Bain , 553 So.2d 1389, 1391 (Fla. 5th DCA 1990) ("[T]he valuation of a retirement plan should exclude any contributions made after the original final judgment of dissolution."). In the future, both Former Wife's and Former Husband's actual retirement benefits may be relevant should either party petition for modification of alimony. However, the trial court did not abuse its discretion in excluding the future employer contributions at this point.

Accordingly, we reverse and remand for the trial court to enter an amended judgment that classifies the entire alimony award as permanent periodic in nature. As to all other issues raised by Former Wife, we affirm.

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

ORFINGER and LAMBERT, JJ., concur.


author: PER CURIAM Hughes, J., dissenting.

text:
    IN RE: Laetitia BLACK
    NO. 2017-B-1546
    Supreme Court of Louisiana.
    March 13, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Laetitia Black, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

Count I-The Lewis Matter

The factual allegations of the formal charges allege that Dennis Lewis hired respondent to assist him in a property partition matter involving a house owned by Mr. Lewis' deceased parents. Respondent mailed letters to the other heirs of the house requesting that they consider donating their specific interests in the property to Mr. Lewis. When none of the other heirs responded, respondent requested and received $2,500 from Mr. Lewis to file a petition to partition the various legal interests in the house. Respondent drafted a petition to partition the property and for the court to appoint a curator for any absent defendants. However, for reasons unknown, the petition was never filed with the court. Mr. Lewis indicated that respondent then terminated the representation. When he went to her office to try to obtain his file, he was unable to locate her because she had moved her law practice to another, unknown location.

The factual allegations of the formal charges further allege that in October 2014, Mr. Lewis filed a disciplinary complaint against respondent, which resulted in the matter being referred to the Louisiana State Bar Association ("LSBA") fee dispute resolution program. However, when respondent failed to cooperate with the request for fee dispute resolution, the matter was remanded to the ODC for further investigation. The ODC made numerous attempts to contact respondent, sending notice of Mr. Lewis' complaint to several addresses. Notice of the complaint also included notice that she was in violation of Rule 1.16(d) of the Rules of Professional Conduct because her legal services contract contained language stating the client was required to pay fees before she would agree to return the file to the client. Respondent did not respond to any of the ODC's letters, most of which were returned by the post office as unclaimed. On December 2, 2015, respondent finally e-mailed the ODC to ask about the nature of the ODC's attempts to contact her. The ODC advised her that she needed to either arrange to pick up her certified mail at the post office or come to the ODC's office to pick up the correspondence. Respondent did not come to the ODC's office or pick up her mail at the post office as the last letter was returned unclaimed. The ODC made one more attempt to serve respondent with notice of the complaint, via certified mail, at her newly listed address in Shreveport. Someone other than respondent signed for and accepted the letter on January 21, 2016, but respondent never responded to the complaint.

The ODC alleged that respondent's conduct, as set forth above, violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II-The Failure to Cooperate Matter

The factual allegations of the formal charges allege that Jude Williams hired respondent to represent him in a breach of contract matter. In April 2013, Mr. Williams filed a disciplinary complaint against respondent, alleging she failed to expedite his claim, failed to communicate with him, and frequently billed him for legal work that was not performed. After investigating Mr. Williams' complaint, the ODC elected to close the complaint on March 17, 2014 on the condition that respondent attend the LSBA Trust Accounting School, participate in the fee dispute resolution program, and pay the costs of her sworn statement. Respondent agreed to these conditions.

The factual allegations of the formal charges further allege that when respondent failed to participate in fee dispute resolution or pay the costs of the sworn statement, the ODC opened a formal complaint against her on July 15, 2015. The ODC then experienced great difficulty in locating respondent in order to serve her with notice of the complaint as well as a subpoena to obtain her sworn statement. Respondent never responded to the complaint.

The ODC alleged that respondent's conduct, as set forth above, violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

DISCIPLINARY PROCEEDINGS

In May 2016, the ODC filed formal charges against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Specifically with respect to the Lewis matter, the committee found that respondent agreed to represent Mr. Lewis in connection with a property partition of inherited property for a fee of $4,486, which Mr. Lewis paid. Respondent mailed several letters and drafted a petition for partition. She then terminated the representation but did not refund any unearned fees. Respondent did not participate in fee dispute resolution and failed to return Mr. Lewis' file materials to him. She also failed to cooperate with the ODC in its investigation. Based on these facts, the committee determined respondent violated Rules 1.3, 1.4, 1.5(f)(5), and 8.1(c) of the Rules of Professional Conduct. Specifically regarding the failure to cooperate matter, the committee found that Mr. Williams hired respondent to represent him in a breach of contract claim. Respondent failed to expedite Mr. Williams' claim, failed to communicate with him, and billed him for legal work that was not performed. Respondent agreed to conditions related to Mr. Williams' complaint with the ODC but failed to complete those conditions. Based on these facts, the committee determined that respondent violated Rules 1.4, 1.5(f)(5), and 8.1(c) of the Rules of Professional Conduct.

The committee then determined that respondent knowingly violated duties owed to her clients, the public, and the legal profession, causing harm to her clients. The committee further determined that, under the ABA's Standards for Imposing Lawyer Sanctions , the baseline sanction is suspension.

In aggravation, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and indifference to making restitution. In mitigation, the committee found only the absence of a prior disciplinary record.

After also considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee further recommended that respondent be ordered to provide accountings and refund all unearned fees to Mr. Lewis and Mr. Williams.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual allegations in the formal charges were deemed admitted and proven. The board also determined that the hearing committee's additional findings are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the factual allegations. Based on these findings, the board concluded that respondent violated Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), and 8.1(c) of the Rules of Professional Conduct with respect to the Lewis matter. Regarding the failure to cooperate matter, the board declined to adopt the committee's finding of a violation of Rules 1.4 and 1.5(f)(5) since respondent was not charged with these violations in the formal charges. Instead, the board concluded that, based on the facts presented, respondent violated Rules 8.1(c) and 8.4(c) as alleged in the formal charges.

The board then determined that respondent knowingly violated duties owed to her clients and the legal profession, causing harm to her clients and the disciplinary system. 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.

After further considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be ordered to make restitution to Mr. Lewis and Mr. Williams, as appropriate.

Following the filing of the disciplinary board's recommendation in this court, respondent filed a motion to remand the matter to the hearing committee as well as objections to the board's recommendation.

After consideration, we denied the motion to remand and ordered the case 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.

Prior to addressing the merits, we must discuss respondent's motion to submit additional evidence. Specifically, along with her brief to this court, respondent filed a "Motion for Leave to Proffer, Under Seal, Offer of Proof Referenced in Respondent's Original Brief." Attached to the motion were copies of Mr. Lewis' and Mr. Williams' files and respondent's written analysis and report of the legal services she provided to Mr. Lewis and Mr. Williams. The ODC filed a motion to strike the evidence proffered by respondent.

We granted respondent's motion for the sole purpose of permitting this proffered evidence to be considered at the court's discretion. Considering the procedural background of this case and argument of the parties, we now decline to receive the proffered evidence into the record.

Respondent argues this court should permit the record to be expanded because she did not receive actual notice of the formal charges. However, a review of the record clearly reveals respondent was properly served with the formal charges.

The rules governing service of formal charges are found in Supreme Court Rule XIX, § 13, subsections (A) and (D), which provide:

A. Service of Petition. Service upon the respondent of the petition in any disciplinary or disability proceeding shall be made by personal service, by any person authorized by the chair of the board, or by mailing the petition by registered or certified mail to the primary address shown in the registration statement filed by respondent pursuant to Section 8C or other last known address.
* * *
D. Proof of Service. When service is made by mail, delivery, or facsimile transmission, a certificate shall be filed in the record of the manner in which service was made. When service is made by registered or certified mail, return receipt requested, a copy of the mailed documents and the signed return receipt shall be filed in the record as proof of service. In cases of personal service, proof of personal service shall be filed in the record.

The record establishes respondent was served with the formal charges via certified mail sent to her primary registration address on file with the LSBA, and the signed certified mail return receipt green card was returned to the ODC on May 25, 2016. Therefore, respondent was properly served with the formal charges, pursuant to Rule XIX, § 13 (A) and (D).

We have typically been very liberal in setting aside deemed admitted orders, especially where there exists evidence that the respondent has made a good faith effort to present a response. In re: Gardner , 98-1476 (La. 10/9/98), 719 So.2d 400, and In re: Tosh , 98-2152 (La. 10/9/98), 719 So.2d 396. However, deemed admitted orders have not been set aside in cases where the failure to respond timely is attributable to the respondent's own actions or inactions. In re: Whitehead , 09-1868 (La. 1/29/10), 28 So.3d 249, and In re: Morphis , 01-2803 (La. 12/4/02), 831 So.2d 934.

In the absence of any evidence that respondent did not receive proper service, we must conclude her failure to respond timely was the result of her own inaction. Accordingly, we will not receive the proffered evidence into the record nor will we set aside the deemed admitted order.

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

The evidence in the record of this deemed admitted matter supports a finding that respondent neglected a legal matter, failed to communicate with a client, failed to refund unearned fees, and failed to cooperate with the ODC in two investigations. As such, she has violated the Rules of Professional Conduct as alleged by the ODC.

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

Respondent knowingly violated duties owed to her clients and the legal profession. Her conduct harmed her clients and the disciplinary system. The baseline sanction for this type of misconduct is suspension.

Some aggravating factors are present, including a pattern of misconduct and multiple offenses. However, it is significant that respondent has no disciplinary record since she was admitted to the bar in 2003. Additionally, although respondent did not participate in the proceedings before the hearing committee and the disciplinary board, she has fully briefed and argued her position in this court.

Considering all the facts, we conclude the appropriate sanction for respondent's misconduct is a one-year suspension from the practice of law. However, in the interest of justice, we will defer six months of this suspension. Following completion of the active portion of her suspension, respondent shall be placed on unsupervised probation for a period of one year subject to the following conditions: (1) respondent shall attend and successfully complete the LSBA's Ethics School, and (2) respondent shall make restitution to Dennis Lewis and Jude Williams, as appropriate. 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.

DECREE

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 Laetitia Black, Louisiana Bar Roll number 28497, be and she hereby is suspended from the practice of law for one year. It is further ordered that all but six months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for one year, subject to the conditions set forth in this opinion. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

Hughes, J., dissenting.

I respectfully dissent, and would defer no part of the one year suspension.

      The record indicates that Mr. Lewis paid respondent a total of $4,486 over the course of the representation.

      At the request of the board, the ODC determined that Mr. Williams paid respondent a total of $2,200.

      In addition to the formal charges, numerous notices and correspondence were mailed to respondent at her then primary address (in Shreveport) and a secondary address (in Bossier City), including a copy of the deemed admitted order, a copy of the ODC's deemed admitted submission on sanctions, a copy of the hearing committee's report and recommendation, notice of the date of oral argument before the board, and a copy of the board's report and recommendation.