author: PER CURIAM.

text:
    Troy VICTORINO, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1285
    Supreme Court of Florida.
    [March 8, 2018]
    Christopher J. Anderson of Law Office of Christopher J. Anderson, Neptune Beach, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

Troy Victorino, a prisoner under sentences of death, appeals the portions of the postconviction court's order denying in part his successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

I. BACKGROUND

On July 25, 2006, after a jury trial, Victorino was found guilty of the following crimes: one count of conspiracy to commit aggravated battery, murder, armed burglary of a dwelling, and tampering with physical evidence; six counts of first-degree murder of victims Erin Belanger, Francisco Ayo Roman, Jonathon W. Gleason, Roberto Manuel Gonzalez, Michelle Ann Nathan, and Anthony Vega; one count of abuse of a dead human body with a weapon; one count of armed burglary of a dwelling; and one count of cruelty to animals. After the penalty phase, the jury returned a recommendation that Victorino be sentenced to death for the murders of Erin Belanger (by a vote of ten to two), Francisco Ayo Roman (by a vote of ten to two), Jonathon W. Gleason (by a vote of seven to five), and Roberto Manuel Gonzalez (by a vote of nine to three), and to life imprisonment for the murders of Michelle Ann Nathan and Anthony Vega. The trial court followed the jury's recommendation and imposed four death sentences on Victorino.

We affirmed Victorino's convictions and death sentences on direct appeal. Victorino v. State , 23 So.3d 87 (Fla. 2009). We thereafter affirmed the denial of Victorino's initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Victorino v. State , 127 So.3d 478 (Fla. 2013).

Following the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court's decisions in Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), and Mosley v. State , 209 So.3d 1248 (Fla. 2016), Victorino filed a successive postconviction motion. The postconviction court granted Victorino's motion in part, ordering that Victorino's death sentences be vacated and a new penalty phase be held in light of the Hurst and Mosley decisions. But the postconviction court denied the portions of Victorino's motion in which he argued that he was entitled to be resentenced to life imprisonment based on section 775.082(2), Florida Statutes, the prohibition against double jeopardy, and the prohibition against ex post facto laws. Victorino now appeals the portions of the postconviction court's order denying in part his successive motion.

II. ANALYSIS

A. Section 775.082(2), Florida Statutes

Victorino concedes we have already ruled in Hurst v. State and Franklin v. State , 209 So.3d 1241 (Fla. 2016), that section 775.082(2) does not require death sentences imposed in violation of Hurst v. Florida to be commuted to life. Nonetheless, Victorino urges us to reconsider our interpretation of section 775.082(2) in light of the fact that his case involves a mass murder and four death sentences. Victorino asserts that under these circumstances a new penalty phase would be especially time consuming and costly and therefore it would be reasonable for us to construe section 775.082(2) in a way that would require his death sentences to be commuted to life sentences. We find Victorino's suggestion that we reconsider our interpretation of section 755.082(2) based on the facts of his case unpersuasive and conclude that section 775.082(2) does not entitle Victorino to be resentenced to life imprisonment.

B. The Prohibition Against Double Jeopardy

Victorino next argues that because none of the four jury recommendations for the death penalty in his case were unanimous, he was "acquitted" of the death penalty and therefore subjecting him to a new penalty phase, in which he will again be eligible for the death penalty, violates the prohibition against double jeopardy. This claim is meritless. The Hurst decisions do not "acquit" Victorino of his four death sentences. As the United States Supreme Court discussed in Sattazahn v. Pennsylvania , 537 U.S. 101, 114, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), a retrial of a capital defendant does not implicate double jeopardy, stating, "[n]or, in these circumstances, does the prospect of a second capital-sentencing proceeding implicate any of the 'perils against which the Double Jeopardy Clause seeks to protect' " (citation omitted). Victorino has not been acquitted of the death penalty or deemed to be an inappropriate candidate for the death penalty. The postconviction court correctly applied the law in determining that double jeopardy does not bar a new penalty phase in which Victorino will again be eligible for the death penalty. Victorino is not entitled to relief.

C. The Prohibition Against Ex Post Facto Laws

Victorino argues that to "apply the recent, post- Hurst case law retroactively to make the Defendant death-eligible would violate the constitutional prohibitions against ex post facto laws." Initial Brief of Appellant at 18, Victorino v. State , No. SC17-1285 (Fla. Sept. 21, 2017). For a criminal law to be ex post facto it must be retrospective, that is, it must apply to events that occurred before its enactment; and it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable. Lynce v. Mathis , 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). Florida's new capital sentencing scheme, which requires the jury to unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that sufficient aggravating factors exist to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death before the trial judge may consider imposing a sentence of death, see § 921.141(2), Fla. Stat. (2017), neither alters the definition of criminal conduct nor increases the penalty by which the crime of first-degree murder is punishable. Thus, it does not constitute an ex post facto law, and Victorino is therefore not entitled to relief.

III. CONCLUSION

For these reasons, we affirm the portions of the postconviction court's order denying Victorino's claims that he is entitled to have his death sentences reduced to life sentences.

It is so ordered.

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

      Section 775.082(2) provides:
      In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment as provided in subsection (1). No sentence of death shall be reduced as a result of a determination that a method of execution is held to be unconstitutional under the State Constitution or the Constitution of the United States.


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA BOARD OF BAR EXAMINERS RE: D.R.W.
    CASE NO.: SC18-401
    Supreme Court of Florida.
    MARCH 27, 2018
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and D.R.W shall be admitted to The Florida Bar subject to the following conditions:
    1. The applicant's license to practice law shall be placed on probation for a period of five years.
   2. During the period of probation, the applicant shall:
(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;
(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on August 1, 2017, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other substance dependent individuals;
(e) undergo quarterly screening, or screening at such greater frequency as required by Florida Lawyers Assistance to assure screens are random, consisting of a multi-panel test for drugs plus EtG testing for alcohol, on randomly selected dates with notice of four hours or less at the direction of The Florida Bar to verify his abstinence from the use of alcohol and controlled substances; and
(f) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d) and (e) above.
3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.
4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.
5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.
6. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.
7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.
8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.
9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.
10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.

A True Copy

Test:

John A. Tomasino Clerk, Supreme Court


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: W.W.W.
    CASE NO.: SC18-451
    Supreme Court of Florida.
    MARCH 27, 2018
    The Joint Stipulation to Extend Probation is approved and the probationary period imposed against W.W.W. in Florida Board of Bar Examiners Re: W.W.W. , Case No. SC16-1025, is extended until March 27, 2021, under the existing terms and conditions with the addition of increasing his random urinalysis to monthly urinalysis for the first year of his extension and requiring his attendance at 90 AA meetings within 90 days, effective immediately.
    The filing of a motion for rehearing shall not alter the effective date of this probation.
    A True Copy
    Test:
    John A. Tomasino Clerk, Supreme Court


author: LAWSON, J. PARIENTE, J., concurring.

text:
    STATE of Florida, Petitioner, v. Earvin SMITH, Respondent.
    No. SC17-576
    Supreme Court of Florida.
    [April 12, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Jeffrey R. Geldens, Assistant Attorney General, Miami, Florida, for Petitioner
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Respondent
   LAWSON, J.

This case is before the Court for review of the decision of the Third District Court of Appeal in Smith v. State , 211 So.3d 176 (Fla. 3d DCA 2016), which passed upon the following question and certified it to this Court as a question of great public importance:

Must a defendant[ ] who claims that the offense as charged in the information is barred by the statute of limitations[ ] raise the issue in the trial court in order to preserve the issue for direct appeal?

Id. at 187. We have jurisdiction, art. V, § 3(b)(4), Fla. Const., and answer the certified question in the affirmative.

BACKGROUND

In 2011, Earvin Smith was arrested after DNA evidence linked him to a home invasion and sexual battery that occurred over twenty years prior. Following a jury trial, Smith's jury found him guilty of (1) burglary of a dwelling with the intent to commit sexual battery or robbery and (2) sexual battery, and further found that Smith possessed a firearm during the commission of these offenses. Smith was adjudicated guilty and sentenced to concurrent terms of twenty years' imprisonment with a three-year mandatory minimum.

Smith appealed to the Third District and argued for the first time that the prosecution for armed burglary, a first-degree felony punishable by life, was subject to the four-year limitations period provided in section 775.15(2)(a), Florida Statutes (Supp. 1990). Smith , 211 So.3d at 179. Smith claimed that this conviction and sentence had to be reversed as a matter of fundamental error. Id. The Third District held that it was compelled to agree, but certified to us as a question of great public importance whether a claim that a conviction for a charged offense is barred by the statute of limitations must be raised in the trial court to preserve the issue for direct appeal. Id.

ANALYSIS

Florida follows "the general rule" that an "[e]rror[ ] that ha[s] not been preserved by contemporaneous objection can be considered on direct appeal only if the error is fundamental." Jackson v. State , 983 So.2d 562, 568 (Fla. 2008). Whether an error is fundamental-meaning that the error "goes to the foundation of the case or goes to the merits of the cause of action," Hopkins v. State , 632 So.2d 1372, 1374 (Fla. 1994) (quoting Sanford v. Rubin , 237 So.2d 134, 137 (Fla. 1970) )-is a question of law we review de novo. See Woods v. State , 95 So.3d 925, 927 (Fla. 5th DCA 2012) ("Review of a claim of fundamental error is de novo."); cf. also Wong v. State , 212 So.3d 351, 355-56 (Fla. 2017) ("Where the facts are undisputed, whether an issue is properly preserved for appellate review is a question of law that this Court reviews de novo.").

We have never expressly considered preservation of a statute-of-limitations defense in the context presented by the certified question. However, the United States Supreme Court has cogently explained that

a statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period. When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely [charging document]. When a defendant does not press the defense, then, there is no error for an appellate court to correct-and certainly no plain error.

Musacchio v. United States , --- U.S. ----, 136 S.Ct. 709, 718, 193 L.Ed.2d 639 (2016).

Although the Supreme Court reached this holding based on the language and history of the federal statute of limitations, the language of our statute does not command a different approach. Timely commencement of prosecution is mandatory under our statute (as it is under the federal statute), but the statute does not make timeliness a nonwaivable issue of jurisdiction. See generally § 775.15, Fla. Stat. (2017) ; § 775.15, Fla. Stat. (Supp. 1990). While we have called the timeliness of the prosecution a "jurisdictional fact," the Third District correctly observed that we do not consider it jurisdictional "in the sense of depriving the trial court of subject-matter jurisdiction." Smith , 211 So.3d at 182.

Moreover, the Supreme Court's approach is consistent with the defensive manner in which we have viewed our statute in the past and with our recent precedent on fundamental error in the comparable context of the State's failure to prove a substantive element of an offense. We have explained that compliance with the statute of limitations is a "factual matter which the State must prove just as it must prove all other elements of the offense." Crews v. State , 183 So.3d 329, 331 (Fla. 2015). Even failure to prove an element of an offense, however, is not fundamental error in most cases. F.B. v. State , 852 So.2d 226, 229-30 (Fla. 2003). Indeed, we recognize only two circumstances in which a defendant is not required to preserve an objection to the sufficiency of the State's case: "The first exception is based on the longstanding appellate rule under which, in death penalty cases, this Court is required to review the sufficiency of the evidence to support the conviction," and the second exception applies where the State fails to prove that "a crime was committed at all." Id. at 230 ; see also Monroe v. State , 191 So.3d 395, 401-02 (Fla. 2016).

If failure to prove a substantive element of an offense is not fundamental error, we see no reason why failure to prove compliance with the statute of limitations should be. Accordingly, we adopt the Supreme Court's well-reasoned approach and hold that the argument that conviction for a charged offense is barred by the statute of limitations must be raised in the trial court to preserve the issue for direct appeal. Of course, our holding does not preclude a defendant prejudiced by trial counsel's nonstrategic failure to raise a statute-of-limitations defense from asserting a claim of ineffective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

CONCLUSION

For the foregoing reasons, we answer the certified question in the affirmative and hold that a defendant must raise a claim that conviction of a charged offense violates the statute of limitations in the trial court to preserve the issue for direct appeal. Accordingly, we quash the portion of the Third District's opinion reversing Smith's conviction and sentence for armed burglary and remand the case to the Third District for reinstatement of that conviction and sentence.

It is so ordered.

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

PARIENTE, J., concurs with an opinion, in which QUINCE, J., concurs.

LEWIS, J., concurs in result.

PARIENTE, J., concurring.

I agree with the majority's answering the certified question in the affirmative, holding that claims that the statute of limitations has run should be raised first in the trial court and not on direct appeal as fundamental error. I write separately to expand on the majority's statement that "our holding does not preclude a defendant prejudiced by trial counsel's nonstrategic failure to raise a statute-of-limitations defense from asserting a claim of ineffective assistance of counsel." Majority op. at 56; see majority op. at 56 n.3. If ineffective assistance of counsel appears on the face of the record, then an appellate court can consider and remedy the error. See Sims v. State , 998 So.2d 494, 502 (Fla. 2008) ; Mansfield v. State , 758 So.2d 636, 642 (Fla. 2000). Having this alternative is critical, especially in cases where all crimes for which the defendant could be convicted are barred by the statute of limitations.

In this case, the defendant was convicted of both armed sexual battery, for which the statute of limitations had not expired, and armed burglary, for which the statute of limitations had expired. Smith v. State , 211 So.3d 176, 177-79 (Fla. 3d DCA 2016). It does not appear that Smith's counsel had a strategic reason for not raising a statute-of-limitations defense for the armed burglary charge. Id. at 178. In fact, Smith's counsel successfully sought dismissal on "three counts of aggravated assault with a firearm" by raising the statute of limitations, and when asked by the trial court about the remaining charges, counsel affirmatively advised the court that the remaining charges were life felonies. Id. Therefore, unless counsel was affirmatively misleading the trial court, both counsel and the state were unaware that the crime charged was not a life felony. Id. at 178-79 & n.6.

While there does not appear to be a strategic reason in this case, the question is prejudice; that is, whether the deficiency undermines confidence in the outcome of Smith's trial. See Wheeler v. State , 124 So.3d 865, 873 (Fla. 2013) ; see also Strickland v. Washington , 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As Judge Emas observes, had defense counsel raised a statute-of-limitations defense on Smith's remaining charges, "the State could validly have amended the information to charge the very same burglary, but as a life felony (a crime for which there is no statute of limitations)." Smith , 211 So.3d at 202 (Emas, J., concurring). In that instance, Smith would have stood convicted and presumably received the same sentence-i.e., 20 years' imprisonment to run concurrent with a sentence of 20 years' imprisonment for the sexual battery charge. Thus, even if Smith's counsel had raised this defense, the question of prejudice remains.

CONCLUSION

For the reasons explained above, I agree with the majority's answering the certified question in the affirmative and concluding that the preferable avenue for addressing an unpreserved statute-of-limitations defense is through a claim of ineffective assistance of counsel, unless deficiency and prejudice are apparent on the face of the record.

QUINCE, J., concurs.

      Although section 775.15 now contains a tolling provision for burglary cases where the defendant's identity is discovered through a DNA match, that provision is inapplicable to this case because the prosecution was already time-barred before the effective date of the amendment. Smith , 211 So.3d at 192 n.21 (Emas, J., concurring) (citing ch. 2006-266, § 1, Laws of Fla., codified at § 775.15(16)(a), Fla. Stat. (2006) ; Lawson v. State , 51 So.3d 1287 (Fla. 2d DCA 2011) ; Bryson v. State , 42 So.3d 852 (Fla. 1st DCA 2010) ).

      Sochor v. State , 619 So.2d 285, 290 (Fla. 1993) (noting that the statute of limitations "is a defensive matter that must be raised at trial"); State v. Sturdivan , 419 So.2d 300, 302 (Fla. 1982) (recognizing that "a defendant may by his actions waive" the statute-of-limitations defense); State v. King , 282 So.2d 162, 164 (Fla. 1973) ("[A] most significant burden of proof is placed upon the State in order to proceed once the jurisdiction of the Court is questioned through the raising of the Statute of Limitations.").

      We also note that even where, as here, the record establishes not only failure to prove compliance, but a clear violation of the statute, the possibilities that failure to raise the statute was a tactical decision and that the State could have remedied the violation upon notice of the error further underscore that the error should not be deemed fundamental. Cf. Gonzalez v. State , 136 So.3d 1125, 1148 (Fla. 2014) (observing that the possibility of "strategic gamesmanship" is a basis for declining to find fundamental error). As Judge Emas explained below, Smith's case illustrates that failure to raise a statute-of-limitations issue can sometimes be to the defendant's strategic advantage because if Smith had "filed a motion to dismiss this charge as barred by the statute of limitations, the State could validly have amended the information to charge the very same burglary, but as a life felony (a crime for which there is no statute of limitations, see section 775.15(1) ), Florida Statutes (1990)) given that Smith had committed a sexual battery during the burglary (the other offense charged in the information, which the jury found Smith guilty of)." Smith , 211 So.3d at 202-03 (Emas, J., concurring).


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: D.T.W.
    CASE NO.: SC18-414
    Supreme Court of Florida.
    MARCH 27, 2018
    The Joint Stipulation to Extend Probation is approved and the probationary period imposed against D.T.W. in Florida Board of Bar Examiners Re: D.T.W. , Case No. SC17-1382, is extended until March 27, 2023, under the existing terms and conditions with the addition of random PEth testing during the first year and the addition of weekly attendance at attorney support meetings, effective immediately.
    The filing of a motion for rehearing shall not alter the effective date of this probation.
    A True Copy
    Test:
    John A. Tomasino Clerk, Supreme Court


text:
    Kenneth Darcell QUINCE, Appellant, v. STATE of Florida, Appellee.
    No. SC17-127
    Supreme Court of Florida.
    [April 12, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Raheela Ahmed, Maria Christine Perinetti, Lisa Marie Bort, and Reuben Andrew Neff, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

Kenneth Darcell Quince, a prisoner under sentence of death, appeals the trial court's order summarily denying his renewed motion for a determination of intellectual disability as a bar to execution, which was filed under Florida Rule of Criminal Procedure 3.203 and section 921.137, Florida Statutes (2015). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons we explain, we affirm the denial of relief.

I. BACKGROUND

In 1980, Quince pleaded guilty to first-degree felony murder and burglary of a dwelling and, after waiving his right to a penalty phase jury, was sentenced to death. We affirmed Quince's death sentence on direct appeal. Quince v. State , 414 So.2d 185, 189 (Fla. 1982). Quince filed an initial motion for postconviction relief, the denial of which was eventually affirmed on appeal. See Quince v. State , 732 So.2d 1059 (Fla. 1999) ; Quince v. State , 592 So.2d 669 (Fla. 1992) ; Quince v. State , 477 So.2d 535 (Fla. 1985). In 2004, Quince filed a successive motion for postconviction relief under Florida Rules of Criminal Procedure 3.851 and 3.203, in which he sought to vacate his death sentence on the ground that he is intellectually disabled and therefore ineligible for the death penalty under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and section 921.137, Florida Statutes (2003). In 2008, an evidentiary hearing was held, at which the trial court heard evidence regarding all three prongs of the intellectual disability standard and thereafter denied the motion based solely on Quince's failure to meet the significantly subaverage general intellectual functioning prong. The denial of relief was affirmed on appeal. Quince v. State , No. SC11-2401, 2012 WL 6197458, at *1-2 (Fla. Dec. 10, 2012) (116 So.3d 1262 (table) ), cert. denied , --- U.S. ----, 134 S.Ct. 2695, 189 L.Ed.2d 743 (2014).

In 2014, the United States Supreme Court issued its decision in Hall v. Florida , --- U.S. ----, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014), in which it held that Florida's interpretation of its statute prohibiting the imposition of the death sentence upon an intellectually disabled defendant as establishing a strict IQ test score cutoff of 70 "creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional." Instead of applying the strict cutoff when assessing the subaverage intellectual functioning prong of the intellectual disability standard, courts must now take into account the standard error of measurement (SEM) of IQ tests. See Hall , 134 S.Ct. at 2001. And "when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Id.

In the wake of Hall , Quince filed a renewed motion for a determination of intellectual disability as a bar to execution in 2015. Quince did not request another evidentiary hearing or seek to present any new evidence of his alleged intellectual disability but simply asked the trial court to review the record from the 2008 intellectual disability hearing in light of Hall . Quince also argued that although the current state of the law requires a defendant to prove his or her intellectual disability by clear and convincing evidence, the trial court should allow Quince to prove his intellectual disability by a preponderance of the evidence because, he alleged, "the 'clear and convincing evidence' requirement runs afoul of Atkins and the Eighth and Fourteenth Amendments to the Constitution of the United States."

At the hearing held on Quince's renewed motion, the trial court acknowledged that although it had heard evidence regarding all three prongs of the intellectual disability standard at Quince's 2008 hearing, it denied Quince's initial intellectual disability claim based solely on his failure to demonstrate that he meets the significantly subaverage general intellectual functioning prong. The trial court agreed with Quince that Hall should be applied retroactively to his case but disagreed that Quince should be allowed to prove his intellectual disability by a preponderance of the evidence instead of clear and convincing evidence. The trial court stated that it would review the record and evidence from Quince's 2008 intellectual disability hearing and reconsider his intellectual disability claim in light of Hall . After reviewing the record and considering written memoranda from both parties, the trial court concluded that Quince failed to prove that he is intellectually disabled because none of the three IQ scores he had presented-79, 77, and 79-fell within the SEM and Quince "was not precluded from presenting additional evidence of intellectual disability, including testimony regarding adaptive deficits." This appeal follows.

II. ANALYSIS

Quince contends that the trial court erred in failing to find that he meets the first prong of the intellectual disability standard-significantly subaverage general intellectual functioning-because it did not adjust his IQ scores to account for the Flynn effect. According to Quince, because Hall requires courts assessing IQ to allow professional standards to inform their decisions, the trial court was required to apply the Flynn effect to adjust his IQ scores down. Although the only IQ scores Quince has presented are a 79 (obtained using the WAIS in 1980), a 77 (obtained using the WAIS-R in 1984), and a 79 (obtained using the WAIS-III in 2006), he claims that when the Flynn effect is applied and the SEM is taken into account as required by Hall , his 1980 IQ score of 79 becomes a range from 65-75, his 1984 IQ score of 77 becomes a range of 70-80, and his 2006 IQ score of 79 becomes a range of 71-81. He asserts that all of these "ranges contain a score on which a finding of significantly subaverage general intellectual functioning is warranted."

At the evidentiary hearing on Quince's initial intellectual disability claim in 2008, Dr. Oakland, a psychologist, testified that he relied on the Flynn effect to adjust Quince's 1980 IQ score from a 79 to a 70. But Dr. Oakland admitted that there is no scientific way to determine whether or not the Flynn effect is operating on a particular person's intelligence score and that he could only say that it was "within the realm of probability" that the Flynn effect impacted Quince's 1980 IQ score. Dr. Oakland did not dispute the accuracy of Quince's unadjusted 1984 IQ score of 77 or his unadjusted 2006 IQ score of 79 and did not testify that those scores should be adjusted for the Flynn effect. At the same 2008 hearing, another psychologist, Dr. McClaren, testified that because Quince's IQ scores remained virtually the same across time and are "tightly clustered near the upper bounds of the borderline level of intellect," the Flynn effect had no impact on them. Dr. McClaren testified that the Flynn effect does not apply on an individual basis, that it is not general clinical practice to subtract the "Flynn number" from an attained IQ score, and that the most recent publication from the American Association on Mental Retardation (which has since been renamed the American Association of Intellectual and Developmental Disabilities (AAIDD) ) at the time did not advise doing so. Dr. McClaren also testified that it would not only be inappropriate but would make no sense to simply add the Flynn number and the SEM together and subtract them from an IQ score because they are not totally independent of one another. After the hearing, the trial court declined to apply the Flynn effect to adjust Quince's IQ scores and concluded that Quince did not establish that he suffers from significantly subaverage general intellectual functioning.

We previously considered and rejected Quince's argument that the trial court erred in failing to apply the Flynn effect to his IQ scores when Quince appealed the denial of his initial intellectual disability claim. See Quince , 116 So.3d 1262 (table) ; Initial Brief of the Appellant at 50, Quince v. State , 116 So.3d 1262 (Fla. 2012) (table) (No. SC11-2401 ). Quince again argues that the trial court erred in failing to adjust his scores for the Flynn effect when considering his renewed intellectual disability claim. Quince now relies on a 2015 publication of the AAIDD, The Death Penalty and Intellectual Disability (Edward A. Polloway, ed. 2015) (DPID), which states that there is "a consensus that individually obtained IQ test scores derived from tests with outdated norms must be adjusted to account for the Flynn Effect, particularly in Atkins cases." Quince argues that under " Hall , courts assessing ID must allow professional standards to inform their decisions" and that "[i]t is clear that both the professional community and the legal community recommend adjusting for the Flynn Effect in the context of Atkins cases." He asserts that if both the Flynn effect and the SEM are applied to his IQ scores as he claims Hall requires, he will have established that he meets the significantly subaverage intellectual functioning prong of the intellectual disability standard.

As many courts have already recognized, Hall does not mention the Flynn effect and does not require its application to all IQ scores in Atkins cases. E.g. , Black v. Carpenter , 866 F.3d 734, 746 (6th Cir. 2017) (noting that Hall does not even mention the Flynn effect and does not require that IQ scores be adjusted for it), petition for cert. filed , No. 17-8275 (U.S. Mar. 26, 2018); Smith v. Duckworth , 824 F.3d 1233, 1246 (10th Cir. 2016) (" Hall says nothing about application of the Flynn Effect to IQ scores in evaluating a defendant's intellectual disability."), cert. denied , --- U.S. ----, 137 S.Ct. 1333, 197 L.Ed.2d 526 (2017) ; Ledford v. Warden, Ga. Diagnostic & Classification Prison , 818 F.3d 600, 639 (11th Cir. 2016) (" Hall did not mention the Flynn effect. ... There is no 'established medical practice' of reducing IQ scores pursuant to the Flynn effect. The Flynn effect remains disputed by medical experts, which renders the rationale of Hall wholly inapposite."), cert. denied , --- U.S. ----, 137 S.Ct. 1432, 197 L.Ed.2d 650 (2017). Although the AAIDD's DPID publication may now advocate the adjustment of all IQ scores in Atkins cases that were derived from tests with outdated norms to account for the Flynn effect, " Hall indicated that being informed by the medical community does not demand adherence to everything stated in the latest medical guide." Moore v. Texas , --- U.S. ----, 137 S.Ct. 1039, 1049, 197 L.Ed.2d 416 (2017). Because Quince has not demonstrated that Hall requires that his IQ scores be adjusted for the Flynn effect, and there is competent, substantial evidence in the record to support the trial court's decision not to apply the Flynn effect to adjust Quince's IQ scores, Quince is not entitled to relief on this claim.

Next, Quince claims that the trial court erred in failing to consider all three prongs of the intellectual disability standard in tandem before denying his renewed intellectual disability claim. At the 2016 hearing on Quince's renewed intellectual disability motion, the trial court acknowledged that it denied Quince's initial intellectual disability claim under the applicable law at the time based exclusively on its finding that Quince failed to meet the significantly subaverage intellectual functioning prong of the intellectual disability standard, but the trial court announced that it would apply Hall retroactively to Quince's case, review the record of the 2008 intellectual disability hearing, and reconsider all of the evidence presented in light of Hall . After reviewing the record and considering written memoranda from both parties, the trial court concluded that because "none of [Quince's IQ] scores are within the tests' acknowledged and inherent margin of error, and the defendant was not precluded from presenting additional evidence of intellectual disability, including testimony regarding adaptive deficits," Quince is not entitled to relief under Hall . We agree that Quince is not entitled to relief on this basis.

In response to a specific question asked by Quince at the 2016 hearing about the extent of the court's review of his renewed intellectual disability claim, the trial court said that it would review the record from the 2008 evidentiary hearing, re-evaluate the evidence regarding the second and third prongs, and reconsider all of the evidence in light of Hall . The trial court's order denying his renewed intellectual disability claim did not make any specific factual findings as to whether Quince had established that he meets either the second or third prongs of the intellectual disability standard, but under the circumstances presented, such specific findings were unnecessary. Although Hall requires courts to consider all three prongs of intellectual disability in tandem, we have recently reiterated that "[i]f the defendant fails to prove any one of these components, the defendant will not be found to be intellectually disabled." Salazar v. State , 188 So.3d 799, 812 (Fla. 2016) ; accord Williams v. State , 226 So.3d 758, 773 (Fla. 2017), petition for cert. filed , No. 17-7924 (U.S. Feb. 26, 2018); Snelgrove v. State , 217 So.3d 992, 1002 (Fla. 2017). And while Hall requires a holistic hearing, "defendants must still be able to meet the first prong of [the intellectual disability standard]." Zack v. State , 228 So.3d 41, 47 (Fla. 2017), petition for cert. filed , No. 17-8134 (U.S. Mar. 12, 2018). Thus, because Quince failed to meet the significantly subaverage intellectual functioning prong (even when the SEM is taken into account), he could not have met his burden to demonstrate that he is intellectually disabled.

Finally, Quince argues that section 921.137(4), Florida Statutes, which requires that defendants prove their intellectual disability by clear and convincing evidence, is unconstitutional under Atkins and the Eighth and Fourteenth Amendments to the United States Constitution, and that he should have been permitted to prove his intellectual disability claim by the more lenient preponderance of the evidence standard instead. Because we conclude that Quince's intellectual disability claim would have failed even under the preponderance of the evidence standard, we need not address the constitutionality of the clear and convincing evidence standard of section 921.137(4), Florida Statutes. See Singletary v. State , 322 So.2d 551, 552 (Fla. 1975) ("[C]ourts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.").

III. CONCLUSION

For these reasons, we affirm the trial court's order denying Quince's renewed motion for a determination of intellectual disability as a bar to execution.

It is so ordered.

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

QUINCE, J., dissents.

      Section 921.137 requires a defendant to establish his or her intellectual disability by demonstrating the following three factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. § 921.137(1), Fla. Stat. The defendant has the burden to prove that he or she is intellectually disabled by clear and convincing evidence. § 921.137(4), Fla. Stat.

      The Flynn effect refers to a theory in which the intelligence of a population increases over time, thereby potentially inflating performance on IQ examinations. The accepted increase in scoring is approximately three points per decade or 0.33 points per year.


text:
    William REAVES, Appellant, v. STATE of Florida, Appellee.
    No. SC18-57
    Supreme Court of Florida.
    [May 2, 2018]
    Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Litigation Director, and Rachel L. Day, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

We have for review William Reaves' appeal of the circuit court's order denying Reaves' motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Reaves' motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). After this Court decided Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), Reaves responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Reaves' response to the order to show cause, as well as the State's arguments in reply, we conclude that Reaves is not entitled to relief. Reaves was sentenced to death following a jury's recommendation for death by a vote of ten to two, and his sentence became final in 1994. Reaves v. State , 639 So.2d 1, 3 (Fla. 1994). Thus, Hurst does not apply retroactively to Reaves' sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Reaves' motion.

The Court having carefully considered all arguments raised by Reaves, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

As in the other Hitchcock -related cases, I concur in result because I recognize that this Court's opinion in Hitchcock is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock that Hurst should apply retroactively to defendants like Reaves. Hitchcock , 226 So.3d at 220-21 (Pariente, J., dissenting).

Applying Hurst to Reaves' case, I note that, in addition to the jury's nonunanimous recommendation for death, this Court determined on direct appeal that "the trial court improperly found the aggravating factor of heinous, atrocious or cruel" because the crime was not "unnecessarily torturous to the victim or set apart from the norm in capital cases." Reaves v. State , 639 So.2d 1, 6 (Fla. 1994) ; accord id. at 3 ; see Middleton v. State , 42 Fla. L. Weekly S637, 2017 WL 2374697, *1-2 (Fla. June 1, 2017) (Pariente, J., dissenting) (explaining how a stricken aggravating factor affects the Hurst harmless error analysis). Therefore, if Hurst applied to Reaves' case, I would conclude that the Hurst error is not harmless beyond a reasonable doubt and grant Reaves a new penalty phase.

      Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).


text:
    Victor Tony JONES, Appellant, v. STATE of Florida, Appellee.
    No. SC18-285
    Supreme Court of Florida.
    [May 2, 2018]
    Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Litigation Director, and Nicole M. Noël, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Melissa R. Shaw, Assistant Attorney General, Miami, Florida, for Appellee
   PER CURIAM.

We have for review Victor Tony Jones' appeal of the circuit court's order denying Jones' motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Jones' motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). After this Court decided Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), Jones responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Jones' response to the order to show cause, as well as the State's arguments in reply, we conclude that Jones is not entitled to relief. A jury convicted Jones of two counts of first-degree murder and recommended a sentence of death for each count, one by a vote of ten to two and the other by a vote of twelve to zero. Jones v. State , 652 So.2d 346, 348 (Fla. 1995). Following the jury's recommendations, the trial court sentenced Jones to death on both counts. Id. Jones' sentences of death became final in 1995. Jones v. Florida , 516 U.S. 875, 116 S.Ct. 202, 133 L.Ed.2d 136 (1995). Thus, Hurst does not apply retroactively to Jones' sentences of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Jones' motion.

The Court having carefully considered all arguments raised by Jones, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State , 226 So.3d 216 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock .


text:
    THE FLORIDA BAR, Complainant, v. Jon Douglas PARRISH, Respondent.
    No. SC15-1988
    Supreme Court of Florida.
    [May 3, 2018]
    Joshua E. Doyle, Executive Director, Tallahassee, Florida, Troy Matthew Lovell, Bar Counsel, Tampa, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant
    Donald G. Peterson and Jonathan M. Weirich of Parrish, White & Yarnell, P.A., Naples, Florida; and J. Christopher Lombardo, Lenore Brakefield, and Joseph M. Coleman of Woodward, Pires & Lombardo, P.A., Naples, Florida, for Respondent
   PER CURIAM.

We have for review a referee's report recommending that Respondent, Jon Douglas Parrish, be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for a period of one year. Parrish seeks review of the referee's report, challenging the referee's recommendations of guilt and recommended discipline. Subsequent to the filing of the referee's report, the Court issued an order directing Parrish to show cause why the referee's recommended discipline should not be disapproved and a more severe sanction imposed. Upon review of the report of referee, the parties' briefs, and the response to the order to show cause and the Bar's reply, we approve the referee's findings of fact and recommendations as to guilt. However, as discussed below, we disapprove the referee's recommended discipline and instead suspend Parrish from the practice of law for three years.

FACTS

On October 29, 2015, The Florida Bar filed a formal complaint against Respondent Parrish, alleging various instances of ethical misconduct in connection with his representation of a client, Spruce River Ventures, LLC, and its principal, Benjamin Bergaoui, in three separate legal matters.

Count I of the Bar's complaint was based on an agreement between Parrish and Bergaoui to use Bergaoui's Lamborghini to pay Parrish's legal fees. The referee found that the agreement was in writing and conferred a security interest in the Lamborghini in favor of Parrish's firm in the amount of $30,000. Bergaoui was given ninety days to sell the vehicle for at least $30,000, with $30,000 to be paid to the firm for legal fees. If Bergaoui failed to sell the vehicle within ninety days, the firm would then have the right to market and sell the vehicle and give Bergaoui a credit for current and future legal fees in the amount of the sale or in the amount of $80,000, at the firm's discretion. The referee found that although Bergaoui had given his Lamborghini as security to others in the past, that did not exempt Parrish from compliance with the clear requirements of Bar Rule 4-1.8(a) (Conflict of Interest; Prohibited and Other Transactions; Business Transactions With or Acquiring Interest Adverse to Client). Based on the above findings of fact, the referee recommended that Parrish be found guilty of violating Bar Rules 3-4.3 (Misconduct and Minor Misconduct), 4-1.5(a) (Illegal, Prohibited, or Clearly Excessive Fees and Costs), and 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client).

Count II of the Bar's complaint was based on Parrish's handling of litigation against Spruce River and Bergaoui related to an agreement to supply urea. The complaint alleged that Parrish failed to act diligently in defending the case and keeping Bergaoui informed and that he intentionally used an incorrect address to notify Bergaoui of his motion to withdraw, preventing Bergaoui from being aware of the withdrawal, resulting in default. At the close of the Bar's case-in-chief, the referee granted Parrish's motion for involuntary dismissal. Accordingly, as to this count, the referee recommended that Parrish not be found guilty of any rule violations. The Bar does not challenge these findings or recommendation.

Count III of the complaint pertained to Parrish's representation of Spruce River in litigation against several defendants seeking specific performance of a contract to purchase seven parcels of real property in Charlotte County, Florida, for development and also seeking monetary damages in connection with the alleged breach of that contract (Spruce River Ventures v. Cotton , No. 082004CA001715XXXXXX (Fla. 20th Cir. Ct.)-the Cotton case). The complaint alleged several areas of misconduct: (1) failing to respond to a death notice filed in the case and lack of communication; (2) loaning money to several of the defendants in order to fund payment of back property taxes and accepting mortgages on several of the parcels involved in the case to secure that loan; (3) negotiating a potential settlement agreement which created a new entity in which Parrish would be a part owner; and (4) communicating directly with several defendants at a time when they were represented. Summary judgment was granted in Parrish's favor with regard to the allegations of direct communication. In addition, after the close of the Bar's case-in-chief, the referee granted Parrish's motion for involuntary dismissal with regard to the allegations of lack of communication with the client in violation of Bar Rule 4-1.4 (Communication).

As for the remaining allegations, the referee found that on April 8, 2011, one of the defendants in the Cotton case wrote to the trial court and advised that another of the defendants, Louise McKamey, had died. The letter was copied to the attorneys of record, including Parrish, who testified that his firm received the letter. No action was taken by Parrish or anyone in his firm to substitute a new party in place of McKamey. Over a year later, on May 24, 2012, another defendant filed a motion to dismiss the complaint, with prejudice, as a result of Spruce River's failure to substitute a new party within ninety days, as required by Florida Rule of Civil Procedure 1.260(a). On February 27, 2013, the court granted the motion to dismiss. Parrish filed a motion to substitute parties related to three deceased defendants, including McKamey, over a year after the notice of McKamey's death, but the court denied the effort as untimely. This issue was appealed by subsequent counsel in the case, but was never decided by the appellate court because the case settled.

Parrish testified before the referee that the defendants were elderly and the death of individual defendants was an ongoing concern. In addition, the defendants argued that the real estate contract was not severable, so diligence in substituting new defendants for deceased defendants was imperative because dismissal of one could result in dismissal of the entire action. Parrish testified that although his firm received the letter he did not personally see it, and he contended that because an associate had been assigned to the case, he was not responsible to respond. When he learned of the letter, he did attempt to substitute parties but well after the deadline. The referee concluded that Parrish's attempts to blame others for his failure to respond were not persuasive, because Bergaoui believed Parrish was his attorney and the retainer agreement stated that Parrish would be "primarily responsible" for the representation. Thus, the referee found that Parrish's failure to act in response to the death notice was an unreasonable failure to act diligently and competently.

With regard to the loan and mortgage transaction, the referee found Parrish loaned $150,000 to several defendants in the Cotton case, took a mortgage on the parcels owned by those defendants, and had Bergaoui sign a subordination agreement, subordinating Bergaoui's interest in the property-which was being pursued in the Cotton case-to the mortgage. The defendants in question had failed to pay real estate taxes on the properties for several years and were financially unable to do so. The parcels constituted over fifty percent of the property at issue in the case, and Parrish testified that the loss of those parcels would result in the dismissal of the case because of the severability issue. Parrish made the loan in order to preserve his client's claim and protect his interest in his fee, which was now a contingency fee. Parrish requested that another attorney, John White, prepare the documentation for the loan transaction. White had previously been a law partner with Parrish and is currently a partner of Parrish, but was not at the time of the mortgage transaction. White prepared the note, mortgage, and subordination agreement, and also met with Bergaoui regarding the subordination agreement.

The referee found that no written disclosures were made outside of the loan documents and specifically no written notice was given to Bergaoui to seek independent legal advice and no written disclosure was made of Parrish's role in the transaction and whether he was representing Spruce River in the transaction. The referee found that White did not act as independent legal counsel advising Bergaoui. Parrish initially consulted with White about the tax deeds and their effect. White prepared the note and mortgage for Parrish and took his instructions for the preparation of those documents from Parrish. Parrish testified that he chose White and required Bergaoui to meet with White. Although White claimed he considered himself to be representing Bergaoui and Spruce River, Bergaoui testified that he did not consider White to be representing him or Spruce River. After the mortgage transaction was completed, another defendant moved to disqualify Parrish, in response to which Parrish prepared an affidavit to be signed by Bergaoui stating that Bergaoui had declined the opportunity to seek independent legal counsel. Only after Bergaoui refused did Parrish begin claiming that White had been independent legal counsel for Spruce River. Because of this, the referee found that Parrish's and White's testimony regarding White having been independent counsel was not credible, and was instead a post hoc effort to recast events in a manner more consistent with ethical requirements. The referee also found that by making the loan to the defendants, Parrish expended funds on something other than litigation expenses, in order to benefit his client, which constituted financial assistance to the client. Further, the referee found that the mortgage transaction constituted the acquisition of a proprietary interest in the subject matter of the litigation.

With regard to the proposed settlement agreement in the Cotton case, the referee found that although never fully executed, the agreement provided for the creation of a new Florida limited liability company to be owned by Parrish's firm, Bergaoui, and several of the defendants in the Cotton case. Parrish would also be a manager of the new entity. The entity would substitute into the litigation for its various participants and seek to obtain the entire tract for development. Witness David Alston, Jr., a family representative of several of the defendants in the Cotton case, testified that following a mediation conference, the framework of the settlement was established whereby the parties would seek to join forces to sell or develop the property. Alston testified that this format was the only feasible approach to settling the case and Parrish's inclusion in the deal was a requirement for the defendants to agree, because his family members had little faith in Bergaoui and did not want to be involved in a transaction with him unless Parrish was also involved. The referee found that under the terms of the agreement, Parrish would have co-equal decision-making authority with his client in directing litigation strategy and an ownership interest in the subject matter of the litigation, and that such an arrangement constituted a business transaction with the client. However, no written disclosures as required by Bar Rule 4-1.8(a) were made regarding the settlement. The referee found Parrish's testimony that he intended to advise Bergaoui to seek independent counsel prior to executing the agreement was not credible based on Parrish's prior failure to comply with Bar Rule 4-1.8(a) with regard to the Lamborghini agreement and the subordination agreement.

After the motion to disqualify Parrish was filed, and Bergaoui refused to sign the affidavit prepared by Parrish, Bergaoui sought independent legal counsel from attorney Brad Bryant. Bryant advised Parrish that Bergaoui did not want Parrish to be a partner in any business venture. The relationship between Bergaoui and Parrish broke down, and Parrish withdrew from the Cotton case in February 2013.

In regard to Count III, based on the above factual findings, the referee recommends that Parrish be found guilty of violating Bar Rules 3-4.3 (Misconduct and Minor Misconduct), 4-1.1 (Competence), 4-1.2 (Objectives and Scope of Representation), 4-1.3 (Diligence), 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client), 4-1.8(e) (Financial Assistance to Client), and 4-1.8(i) (Acquiring Proprietary Interest in Cause of Action). The referee also recommends that Parrish not be found guilty of violating Bar Rules 4-1.4 (Communication) and 4-4.2 (Communication with Person Represented by Counsel).

The referee recommends that Parrish receive a one-year suspension. In making this recommendation, the referee found and considered the following aggravating factors: (1) dishonest or selfish motive; (2) pattern of misconduct; (3) multiple offenses; (4) refusal to recognize wrongful nature of the misconduct; and (5) substantial experience in the practice of law. The referee found and considered one mitigating factor-absence of a prior disciplinary record.

ANALYSIS

Parrish challenges the referee's recommendation that he be found guilty of violating Bar Rules 3-4.3, 4-1.5(a), and 4-1.8(a) in connection with Count I, the Lamborghini agreement. In addition, Parrish challenges the recommendation that he be found guilty of violating Bar Rules 3-4.3, 4-1.1, 4-1.2, 4-1.3, 4-1.8(a), 4-1.8(e), and 4-1.8(i) with regard to Count III, the Cotton case. Lastly, Parrish argues that the referee's recommendation of a one-year suspension is unsupported by the Standards for Imposing Lawyer Sanctions (Standards) and the cited case law; nor does Parrish believe that a more severe sanction is necessary.

RULE VIOLATIONS

To the extent Parrish challenges the referee's findings of fact for the rule violations, the Court's review of such matters is limited, and if a referee's findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick , 756 So.2d 79, 86 (Fla. 2000). Moreover, a referee's recommendation as to guilt will be approved by the Court if the referee's factual findings are sufficient under the applicable rules to support the recommendation. Fla. Bar v. Shoureas , 913 So.2d 554, 557-58 (Fla. 2005). Finally, the party challenging the referee's findings of fact and conclusions as to guilt has the burden to demonstrate that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions. Fla. Bar v. Germain , 957 So.2d 613, 620 (Fla. 2007).

Count I-The Lamborghini Agreement

With regard to the Lamborghini agreement, the referee found that the agreement was in writing and conferred a security interest in the Lamborghini in favor of Parrish's firm in the amount of $30,000. Bergaoui was given ninety days to sell the vehicle for at least $30,000, with $30,000 to be paid to the firm for legal fees. If Bergaoui failed the sell the vehicle within ninety days, the firm would then have the right to market and sell the vehicle and give Bergaoui a credit for current and future legal fees in the amount of the sale or in the amount of $80,000, at the firm's discretion. The agreement, entered into evidence before the referee, required Bergaoui to "execute and sign over to PWL [Parrish's firm] title, in blank," to the car "to hold as security against the payment of fees." It further required Bergaoui to, within ninety days, "procure a purchaser for the vehicle for not less than $30,000." Upon procurement of a purchaser, the agreement provided that the "parties will cooperate to close upon the vehicle" and payment "shall be made to PWL to be held in escrow." Upon receipt of payment, PWL agreed to "release the title to the purchaser," then "disburse $30,000 to itself for payment of past and on-going legal fees and shall release any remainder to Bergaoui." If the vehicle was not sold in the ninety days, Bergaoui was required to "deliver the car to PWL" who then had the "right to market and sell the vehicle and apply the funds to Bergaoui's then legal fees or to future legal fees or to credit Bergaoui's account in the sum of $80,000, at its discretion and sole option."

Bar Rule 3-4.3 (Misconduct and Minor Misconduct)

Bar Rule 3-4.3 states as follows:

The standards of professional conduct required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting grounds for discipline are not all-inclusive, nor is the failure to specify any particular act of misconduct to be construed as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline whether the act is committed in the course of the lawyer's relations as lawyer or otherwise, whether committed within Florida or outside the state of Florida, and whether the act is a felony or a misdemeanor.

The purpose of this rule is to express that "the enumerated categories of misconduct-specifically the Rules of Professional Conduct contained in Chapter 4 of the Rules Regulating the Florida Bar-are not intended to be an exhaustive list of unethical conduct that may provide grounds for imposing discipline." Fla. Bar v. Draughon , 94 So.3d 566, 570 (Fla. 2012). The rule can form an independent basis for discipline. Id. Here, the referee's factual findings support the conclusion that Parrish improperly entered into a business transaction with his client in violation of the rules of professional conduct-contrary to honesty and justice.

Bar Rule 4-1.5(a) (Illegal, Prohibited, or Clearly Excessive Fees and Costs)

Bar Rule 4-1.5(a) states, in pertinent part, that an attorney "shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost." Although the referee's report does not contain any specific factual findings as to whether the Lamborghini agreement was an agreement for an illegal, prohibited, or clearly excessive fee, the Lamborghini agreement violated Bar Rule 4-1.8(a), as discussed below, and therefore provided for a "prohibited fee" because the agreement itself violated the rule.

Bar Rule 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client)

Rule 4-1.8(a) governs business transactions with clients. The rule prohibits business transactions with clients, unless (1) the terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of and is given a reasonable opportunity to seek independent legal counsel on the transaction; and (3) the client gives informed consent in writing. The comment to the rule also explains that the rule "does not apply to ordinary fee arrangements between client and lawyer, which are governed by rule 4-1.5, although its requirements must be met when the lawyer accepts an interest in the client's business or other nonmonetary property as payment for all or part of a fee." Here, the Lamborghini agreement clearly pertained to legal fees, in that it was designed to ensure payment of such fees. This was not an "ordinary fee arrangement." The referee specifically found that the "forced sale" provision-i.e., the provision giving Parrish's firm the right to sell the car and apply the proceeds of the sale to Bergaoui's legal fees-triggered the requirements of the rule, which were not satisfied. Saliently, the agreement unfairly afforded Parrish's firm the potential to obtain funds from the sale of the client's Lamborghini in an indeterminate amount that would constitute an excessive fee.

Based upon the foregoing, we approve the referee's recommendation that Parrish be found guilty of violating Bar Rules 3-4.3, 4-1.5(a), and 4-1.8(a).

Count III-Representation of Spruce River in the Cotton case

The referee recommends that Parrish be found guilty of numerous Bar Rule violations under Count III, which pertains to several areas of misconduct with regard to Parrish's representation of Spruce River in Spruce River Ventures v. Cotton , No. 082004CA001715XXXXXX (Fla. 20th Cir. Ct.), the Cotton case. The misconduct includes failing to respond to a death notice filed in the case, loaning money to several of the defendants in order to fund the payment of back taxes, accepting a mortgage on several parcels to secure the loan, and negotiating a potential settlement agreement which created a new entity in which Parrish would be a part owner. We address each of the Bar Rule violations in turn.

Bar Rule 3-4.3 (Misconduct and Minor Misconduct)

As previously discussed, Bar Rule 3-4.3 can form an independent basis for discipline and its intent is to express that the Rules of Professional Conduct contained in Chapter 4 of the Bar Rules are not an exhaustive list of unethical conduct. Draughon , 94 So.3d at 570. Rather, any act by an attorney that is unlawful or contrary to honesty and justice may provide a basis for discipline. Here, the referee's findings pertaining to the proposed settlement agreement support the conclusion that had it been executed, it would have been clearly in violation of Bar Rules 4-1.8(a) and (i). The proposed agreement would have constituted a business transaction with the client and would have given Parrish a proprietary interest in the subject matter of the litigation in that his firm was to be part owner of the new limited liability company that was to substitute into the litigation.

Bar Rule 4-1.1 (Competence) and Bar Rule 4-1.3 (Diligence)

Parrish challenges the referee's recommended finding of guilt of violating Bar Rules 4-1.1 and 4-1.3 with regard to the handling of the letter sent by one of the defendants in the Cotton case informing the court that one of the other defendants, Louise McKamey, had died. The referee made the following findings of fact on this issue:

The facts related to the death notice are fairly straight-forward. On April 8, 2011, one of the defendants wrote to the court handling the Cotton case and advised that another of the defendants, Louise Mckamey [sic], had passed away the previous day. The letter was copied to the attorneys of record in the Cotton case, including Respondent. Respondent testified that his firm received the notice. No action was taken by Respondent or anyone in his firm to substitute a new party in place of Mckamey [sic]. Over a year later, on May 24, 2012, another defendant filed a motion to dismiss the pending complaint, with prejudice, as a result of Spruce River's failure to substitute a new party within 90 days, as required by Fla. R. Civ. P. 1.260(a). On February 27, 2013, the court granted the motion to dismiss.
In response to the May 2012 motions, Respondent filed a Motion to Substitute Parties related to three deceased defendants, including Mckamey [sic]. This action was taken over a year after the notice of Mckamey's [sic] death, and the court denied the effort as untimely. Respondent testified that the issue was appealed by subsequent counsel, but never decided by the appellate court because the case settled.
Respondent testified that the defendants were elderly and the death of individual defendants was an ongoing concern. Respondent also testified that the defendants were arguing that the real estate contract was not severable, so the loss of a single defendant would result in the dismissal of the entire claim. Accordingly, diligence in substituting new defendants for deceased defendants was imperative, because dismissal of even a single defendant could result in the entire action being dismissed. Respondent also testified that, although his firm received the April 8 letter, he did not personally see it. He also testified that the case had been assigned to an associate, so Respondent was not responsible to respond to the letter. When he did personally learn of the letter, Respondent did attempt to substitute parties, though well after the deadline established by rule.
Respondent's attempts to blame others for his failure to respond are not persuasive. Bergaoui testified that he considered Respondent to be his attorney. Respondent's initial retainer letter stated that Respondent would be "primarily responsible" for the representation. Having accepted primary responsibility for the representation, Respondent is responsible for the action or inaction of those he utilized to assist him. Respondent can cast aspersions on associates or staff members, but he cannot escape the responsibility he accepted. Given the importance of the issue, of which Respondent testified that he was well aware, Respondent's failure to act in response to the death notice was an unreasonable failure to act diligently and competently.

Report of Referee at 7-8 (record citations omitted).

Bar Rule 4-1.1 states that a lawyer must provide competent representation and that such requires "the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." The comment to this rule also explains that competence includes

inquiry into and analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners.... The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.

R. Regulating Fla. Bar 4-1.1 cmt. Bar Rule 4-1.3 requires lawyers to "act with reasonable diligence and promptness."

Parrish contends that he should not be found guilty of violating Bar Rules 4-1.1 and 4-1.3 because he had assigned the responsibility of handling issues surrounding the death of defendants to an associate, and he did not personally receive the letter in question, but when he did, he took immediate action. Parrish relies upon Bar Rule 4-5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers), which states that a supervisory lawyer is responsible for a supervised lawyer's misconduct only if the supervisory lawyer knows of the conduct at a time when its consequences may be avoided or mitigated but fails to take reasonable remedial action.

However, Parrish was not charged with or found guilty of violating rule 4-5.1. Also, he overlooks Bar Rule 4-5.1(b), which requires a supervisory lawyer to "make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct." Therefore, Parrish, as the primary lawyer, cannot simply disclaim responsibility for attending to what all agreed was an important issue in the case. As the primary lawyer, he was obligated to provide competent and diligent representation, which in this case clearly included giving appropriate attention to and exercising reasonable diligence with regard to an important and ongoing legal issue in the case. The factual findings of the referee support a conclusion that Parrish did not meet these obligations.

Bar Rule 4-1.2 (Objectives and Scope of Representation)

Parrish challenges the referee's recommendation of guilt for violating Bar Rule 4-1.2 pertaining to the proposed settlement agreement in the Cotton case. The referee made the following findings of fact on this issue:

Although never fully executed, the settlement agreement was partially executed and provided for the creation of a new Florida limited liability company to be owned by Respondent's firm, Bergaoui, and several of the defendants in the Cotton case. Respondent would also be a manager of the new entity. The new entity would substitute into the litigation for its various participants and seek to obtain the entire tract for development. Witness David Alston, Jr., testified that, following a mediation conference in 2011, the framework of settlement was established whereby the parties would seek to join forces to sell and/or develop the property. Alston testified that this format was the only feasible approach to settling the case and that Respondent's inclusion in the deal was a requirement for the defendants to agree. He testified that his family members had little faith in Bergaoui and did not want to be involved in a transaction with him unless Respondent was also involved. He frequently referred to Respondent and Bergaoui as "partners." On August 10, 2012, one of the other defendants learned of the potential settlement agreement and filed a motion to disqualify Respondent. In response, Respondent sought to have Bergaoui sign the affidavit claiming that he had declined the opportunity to seek independent counsel. Bergaoui then sought out independent legal counsel from Brad Bryant. Bryant advised Respondent that Bergaoui did not want Respondent to be a partner in any business venture. The relationship between Respondent and Bergaoui broke down, and Respondent withdrew from the Cotton case in February 2013....
Although not fully executed, the settlement agreement was partially executed and the framework of the agreement was the same as it had been for the prior year. Furthermore, this framework, in which Respondent would be a participant in a new business venture, was a requirement of the defendants for any settlement. The terms of the settlement agreement gave Respondent co-equal decision-making with his client in directing litigation strategy, gave Respondent an ownership interest in the subject matter of litigation, constituted a business transaction with a client. [sic] No written disclosures as required by Rule 4-1.8(a) were made regarding the settlement.
Respondent testified that he intended to advise Bergaoui to seek independent counsel prior to executing the agreement. This testimony was not credible based on Respondent's prior failure to comply with Rule 4-1.8(a) in the Lamborghini agreement and the subordination agreement. Respondent's reaction to Bryant's involvement as independent counsel also demonstrates the falsity of Respondent's claim. Furthermore, meeting the requirements of Rule 4-1.8(a) would not permit the violations of Rule 4-1.2 and Rule 4-1.8(i) contained in the settlement agreement. No provision allows for the waiver of those violations.

Report of Referee at 12-14.

We agree with the Bar that the referee's recommendation is supported by his findings that the proposed settlement agreement would have given Parrish co-equal decision-making authority with his client in directing litigation strategy, in violation of Bar Rule 4-1.2(a) (Objectives and Scope of Representation; Lawyer to Abide by Client's Decisions). This subdivision requires lawyers to abide by a client's decisions concerning the objectives of representation and consult with the client as to the means by which those objectives are to be pursued.

Bar Rule 4-1.8(a) (Business Transactions With or Acquiring Interest Adverse to Client)

Parrish argues that the Court should disapprove the referee's recommendation that he be found guilty of violating Bar Rule 4-1.8(a) in connection with the subordination agreement he entered into with his client. On this issue, the referee made the following findings of fact:

In order to preserve his client's claim and to protect his interest in his fee, which was now a contingency, Respondent agreed to loan $150,000 to the Shepards and the Alstons for payment of the back taxes. Respondent also insisted that Spruce River subordinate its interest being pursued in the Cotton case to Respondent's mortgage interest. Respondent requested that another Naples attorney, John White, prepare the documentation for the loan transaction. John White had previously been law partners with Respondent and is currently law partners with Respondent, but was not affiliated with Respondent at the time of the mortgage loan transaction. John White prepared the note, mortgage, and subordination agreement, and also met with Bergaoui regarding the subordination agreement. The documents were executed, and the mortgage and subordination agreement were recorded in the public records. No written disclosures were made outside of the loan documents. Specifically, no written notice was given to Bergaoui to seek independent legal advice and no written disclosure was made of Respondent's role in the transaction and whether he was representing Spruce River in the transaction. Currently, the note and mortgage have been assigned by Respondent to SWFLA Holdings, LLC, an entity created by Respondent, which is seeking to foreclose the mortgage against Spruce River and the Shepards and Alstons and also seeking monetary damages against the Shepards and Alstons. Although there was some dispute regarding the length of the discussions between White and Bergaoui, all of the foregoing facts were basically agreed by all relevant witnesses: Bergaoui, Respondent, David Alston, Jr., John White, and Ann White.
Respondent contends that written advice to seek independent counsel was unnecessary because Bergaoui actually obtained independent legal advice from John White. I find that, regardless of the length of their discussion, John White was not independent legal counsel. Respondent and John White both testified that, when he first learned about the tax deeds, Respondent initially consulted with White regarding the effect of the tax deeds. White prepared the note and mortgage for Respondent. White took his instructions for the preparation of the documents from Respondent. Respondent testified that he chose White and required Bergaoui to go see White. White also knew little about the Cotton case and testified that he mostly talked to Bergaoui about the specific information needed to prepare the documents (names, property descriptions, etc.) and about the potential impact of tax deeds. Furthermore, although White claimed he considered himself to be representing Bergaoui/Spruce River, Bergaoui testified that he did not consider White to be representing him or Spruce River.
After the transaction was completed, another defendant filed a motion to disqualify Respondent because of the mortgage loan transaction. In response, Respondent prepared an affidavit to be signed by Bergaoui in which Bergaoui would state under oath that he had been advised of the opportunity to seek independent counsel but declined to do so. Only after Bergaoui refused to sign the affidavit did Respondent begin claiming that John White had been independent counsel for Spruce River. Therefore, I find the testimony of Respondent, supported by his law partner White, is not credible regarding White having acted as independent counsel. Their testimony is a post hoc effort to recast events in a manner that is more consistent with the requirements of the rules.
I further find, and all parties agree, that no disclosure was made regarding whether Respondent was representing Spruce River in the transaction. In addition, contrary to Respondent's argument, I find that partial compliance is insufficient under the rule.

Report of Referee at 9-11.

Rule 4-1.8(a) governs business transactions with clients. Here, Parrish does not contest that no formal written disclosures pertaining to seeking independent legal counsel or his role in the transaction were provided to Bergaoui. He also does not contest that there was no written client consent with regard to his role in the transaction. Parrish argues that he should not be found guilty of violating this rule because, contrary to the referee's factual findings, White acted as independent counsel for Bergaoui in the transaction, and thus the requirements of the rule were substantially met. However, the referee found otherwise after finding Parrish's and White's testimony not credible on this issue. The referee's determination in this regard depended largely upon his assessment of the credibility of the witnesses. The Court has repeatedly acknowledged that "[t]he referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect." Fla. Bar v. Tobkin , 944 So.2d 219, 224 (Fla. 2006) (quoting Fla. Bar v. Thomas , 582 So.2d 1177, 1178 (Fla. 1991) ). We approve the referee's recommendation that Parrish be found guilty of violating Bar Rule 4-1.8(a).

Bar Rule 4-1.8(e) (Financial Assistance to Client)

Parrish challenges the referee's recommendation that he be found guilty of violating Bar Rule 4-1.8(e) by loaning money to the defendants to pay the delinquent taxes on the property at issue in the Cotton case. Bar Rule 4-1.8(e) prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. The comment to this provision explains that "[l]awyers may not subsidize lawsuits ... including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation."

Parrish argues that he did not loan money to his client; rather, he loaned it to the defendants. However, the rule is broader than that, in that it prohibits "financial assistance," which may take many forms. See Fla. Bar v. Patrick , 67 So.3d 1009, 1016 (Fla. 2011) (finding a Bar Rule 4-1.8(e) violation where the attorney paid appellate attorney's fees on behalf of the client). Further, given the comment prohibiting lawyers from "subsidizing" lawsuits, Parrish violated the rule by expending funds on something other than litigation expenses, in order to benefit the client.

Bar Rule 4-1.8(i) (Acquiring Proprietary Interest in Cause of Action)

Lastly, Parrish argues that the referee incorrectly concluded that Parrish violated Bar Rule 4-1.8(i) by obtaining a mortgage on several of the parcels at issue in the Cotton case after loaning money to the defendants who owned the parcels. Bar Rule 4-1.8(i) prohibits a lawyer from acquiring "a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee."

Parrish contends that the mortgage he obtained on the property at issue in the Cotton case does not constitute a violation of this rule because a mortgage is not a proprietary interest. We reject Parrish's narrow reading of Bar Rule 4-1.8(i). Rather, we conclude that the rule is intended to prohibit a lawyer generally from acquiring other types of interests in the subject matter of the litigation; otherwise, the express exceptions for liens and contingency fees would be unnecessary.

DISCIPLINE

In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because, ultimately, it is the Court's responsibility to order the appropriate sanction. See Fla. Bar v. Anderson , 538 So.2d 852, 854 (Fla. 1989) ; see also art. V, § 15, Fla. Const. In addition, the Court views cumulative misconduct more seriously than an isolated instance of misconduct, and cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct. Fla. Bar v. Walkden , 950 So.2d 407, 410 (Fla. 2007). In imposing a sanction, the Court considers the following factors: "a) the duty violated; b) the lawyer's mental state; c) the potential or actual injury caused by the lawyer's misconduct; and d) the existence of aggravating and mitigating factors." Fla. Stds. Imposing Law. Sancs. 3.0.

While the Court will not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing case law and the Standards, see Florida Bar v. Temmer , 753 So.2d 555, 558 (Fla. 1999), we conclude that the Standards and existing case law support more than a one-year suspension.

Here, the most prominent feature of Parrish's misconduct is a conflict of interest.

In addition, Parrish violated his duty to his client. Therefore, the most relevant Standards for Imposing Lawyer Sanctions are Standard 4.3 (Failure to Avoid Conflicts of Interest) and Standard 7.0 (Violations of Other Duties Owed as a Professional). We conclude that under these standards, a suspension is the appropriate discipline. See Fla. Stds. Imposing Law. Sancs. 4.32 ("Suspension is appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client."); 7.2 ("Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.").

Turning to the aggravating and mitigating factors found by the referee, including five aggravating factors-(1) dishonest or selfish motive; (2) pattern of misconduct; (3) multiple offenses; (4) refusal to recognize wrongful nature of the misconduct; and (5) substantial experience in the practice of law-and one mitigating factor-absence of a prior disciplinary record-we conclude that there is competent, substantial evidence in the record to support the referee's findings. Moreover, "[a] referee's findings in aggravation carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record." Fla. Bar v. Ticktin , 14 So.3d 928, 937 (Fla. 2009).

Next, we conclude that there is not a reasonable basis in the case law cited by the referee for his recommendation. The referee relied upon the following cases: Florida Bar v. Doherty , 94 So.3d 443 (Fla. 2012) ; Florida Bar v. Patrick , 67 So.3d 1009 (Fla. 2011) ; Ticktin , 14 So.3d 928 ; Florida Bar v. Herman , 8 So.3d 1100 (Fla. 2009) ; and Florida Bar v. Rotstein , 835 So.2d 241 (Fla. 2002).

First, while Doherty involved a conflict of interest between attorney and client, that decision is distinguishable where we disbarred the attorney who had previously received a two-year suspension. 94 So.3d at 445.

Next, the following cases, while involving conflicts of interests between the attorney and his client, are not determinative here because Parrish engaged in multiple instances of unethical conduct involving numerous Bar Rule violations, unlike in those cases. In Patrick , we imposed a one-year suspension where the attorney violated the rule against advancing costs of litigation to a client by paying a portion of the client's appellate counsel's fees. 67 So.3d at 1019. A ninety-one-day suspension was imposed in Ticktin , where the attorney entered into a business transaction with a client without required disclosures and client consent, although the client was highly sophisticated and manipulated the attorney into engaging in the transaction. 14 So.3d at 940. In Herman , we imposed an eighteen-month suspension upon an attorney who, without the required disclosures and informed consent of his client, became an investor, and eventually the sole investor, in another competing company. 8 So.3d at 1108.

Finally, we approved a recommended suspension of one year in Rotstein , where the attorney violated numerous Bar Rules by taking positions adverse to his clients. 835 So.2d at 246-47. Rotstein , however, is not controlling because it was decided over fifteen years ago and in more recent years the Court has imposed even more severe discipline for unethical and unprofessional conduct than in the past. Fla. Bar v. Rosenberg , 169 So.3d 1155, 1162 (Fla. 2015).

Accordingly, we conclude that a three-year suspension is warranted by Parrish's misconduct. See, e.g. , Fla. Bar v. Adorno , 60 So.3d 1016, 1034-37 (Fla. 2011) (three-year suspension imposed upon attorney based upon a settlement agreement in favor of individual clients to the detriment of class clients, constituting a conflict of interest and an excessive fee); Fla. Bar v. Scott , 39 So.3d 309, 317 (Fla. 2010) (conflicts of interest between lawyer and client and misrepresentations to client warranted three-year suspension).

CONCLUSION

Accordingly, Respondent, Jon Douglas Parrish, is hereby suspended from the practice of law for three years. The suspension will be effective thirty days from the filing of this opinion so that Parrish can close out his practice and protect the interests of existing clients. If Parrish notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the three-year suspension effective immediately. Parrish shall fully comply with Bar Rule 3-5.1(h). Further, Parrish shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Jon Douglas Parrish in the amount of $7,100.38, for which sum let execution issue.

It is so ordered.

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

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

      Rule 4-1.8(a) governs business transactions with clients.

      Bar Rule 3-4.3, as quoted, is that which became effective February 1, 2018, which only included technical changes. See In re Amends. to Rules Regulating Fla. Bar , 234 So.3d 632 (Fla. 2017).


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