author: COPE, J.

text:
    Eliezier LEAL and Clara Leon, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
    No. 3D09-821.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.

      David M. Sostchin, Hialeah, and Michelle D. Alvarez, for appellant.
    Van Ness Law Firm and Katherine J. Pauls, Hallandale Beach, for appellee.
    Before COPE, GERSTEN and SUAREZ, JJ.
   COPE, J.

This is an appeal of a summary judgment in a mortgage foreclosure action. We remand for further proceedings.

Deutsche Bank National Trust Company, as trustee, filed a complaint seeking to reestablish a lost promissory note and foreclose a mortgage on a home in Miami-Dade County. According to the complaint, the loan was made in 2006 and went into default on August 1, 2008. The borrowers filed a pro se answer.

After the case had been pending for two months, the borrowers obtained counsel who filed an answer and affirmative defenses. The Bank filed a motion for summary judgment and the borrowers filed an affidavit in opposition.

At the hearing on the motion for summary judgment, the main issue under discussion was whether the Bank had standing. The Bank has filed the assignment in its favor and we agree that standing has been satisfactorily established.

At the hearing, the borrowers argued that the Bank had failed to address their affirmative defenses, and argued that discovery had been propounded to the Bank which had not been answered. The trial court entered summary judgment, in the borrowers have appealed.

The borrowers argue that the Bank failed to address their affirmative defenses. The Bank acknowledges that when counsel entered the case on behalf of the borrowers, he filed an amended answer and affirmative defenses. The Bank responds that this should not have been considered. The Bank points out that more than twenty days had elapsed after the filing of the pro se answer, so that counsel needed to obtain leave of court in order to file an amended answer and affirmative defenses. See Fla. R. Civ. P. 1.190(a). The borrowers had filed a motion for leave to amend, but it had not been ruled on. We reject the Bank’s argument because the Bank did not make an objection on this ground when the summary judgment motion was argued before the trial court. The answer and affirmative defenses were treated as having been properly filed.

Turning to the merits, “[t]he party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law.” Kendall Coffey, Foreclosures in Florida 493 (2008) (citing Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003); Manassas Inn, Inc. v. O’Hanrahan, 817 So.2d 1080 (Fla. 2d DCA 2002)). The Bank’s motion failed to address the affirmative defenses. Among these were a claim that the defendants had not received a notice of acceleration and right to reinstate. Such a notice appears to be required by this mortgage.

We therefore reverse the summary judgment and remand for further proceedings. This ruling is without prejudice to the Bank to file a renewed motion for summary judgment which addresses the affirmative defenses. Because we have affirmed on the issue of standing, no further proceedings need be conducted on that issue. We express no opinion on the factual or legal merit of the remaining affirmative defenses, which should be addressed in the first instance by the trial court.

The borrowers also maintained that the Bank incorrectly calculated the amount due by not considering two late payments, and claimed that late charges after acceleration should not have been added into the total amount. See Maung v. National Stamping, LLC, 842 So.2d 214, 216 (Fla. 3d DCA 2003). On remand the borrowers must file a more specific affidavit stating the amounts for which they contend they should be given credit.

We note that some of the affirmative defenses and statements in the affidavit in opposition are conclusory. “Where there are no facts pled to support general allegations of affirmative defenses, the defenses are legally insufficient.” Kendall Coffey, supra, at 493 (citing Southern Waste Sys., LLC v. J & A Transfer, Inc., 879 So.2d 86, 87 (Fla. 4th DCA 2004)).

At the summary judgment hearing, the borrowers also maintained that summary judgment should not be granted because of pending discovery. To the extent that the pending discovery was directed to the issue of standing, that issue is moot. To the extent that pending discovery is pertinent to any remaining issue, that should be addressed on remand in the trial court.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

       Had an objection been made, we are confident the trial court would have granted leave for the filing of the amended answer and affirmative defenses, to replace the earlier pro se filing. The case had only been pending two months when counsel had filed the amended answer and affirmative defenses promptly after entering his appearance.


source: Caselaw Access Project

author: PER CURIAM. COPE, J.

license: Public Domain

text:
    Jose DeANGULO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-559.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.

      Joel Kaplan and Lisa H. Colon, Miami, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring).

Defendant-appellant Jose DeAngulo appeals an order denying a motion for post-conviction relief under Florida Rule of Criminal Procedure 8.850. I concur in the affirmance on the following analysis.

The defendant was charged in count one with sale of cannabis in violation of section 893.18, Florida Statutes (2007), and in count three, with attempted trafficking in cannabis, in violation of subparagraph 893.135(l)(a)l., Florida Statutes (2007). The defendant was sentenced pursuant to the plea agreement.

The defendant filed a timely rule 3.850 motion, arguing that there was an insufficient factual basis for count three. The defendant alleged that the amount of cannabis was twenty-two pounds, whereas under the trafficking statute, the minimum weight for a trafficking amount was twenty-five pounds. Id. The defendant asked the trial court to vacate count three only, but leave the remainder of the plea agreement in place. The trial court denied relief and the defendant has appealed.

In this situation, the defendant “must elect to either withdraw his plea to all charges or to none.” Quintana v. State, 917 So.2d 991, 992 (Fla. 3d DCA 2005). Here the defendant did not request withdrawal of the entire plea, so the trial court reached the correct result in denying relief.

The defendant maintains that the court must grant relief because attempted trafficking is a non-existent offense. That is incorrect. As a statutory matter, the offense exists. See State v. Fernandez, 546 So.2d 791 (Fla. 3d DCA 1989). The substance of the claim is that there was no factual basis for that particular count.

Because the defendant did not seek to withdraw from the entire plea, the trial court reached the correct result in denying relief.


author: PER CURIAM.

text:
    Gary HYDE, Appellant, v. ARENA BOX PROMOTIONS US, LLC, a Florida Limited Liability Company and Guillermo Rigondeaux Ortiz, Appellees.
    No. 3D09-1954.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    William J. Brown, for appellant.
    Marlow, Connell, Abrams, Adler, Newman & Lewis and Rosemary Wilder, Ft. Lauderdale; Herb R. Borroto; Milagrito G. Borroto, Coral Gables; Antonio S. Gonzalez, for appellees.
    Before WELLS, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

We find no abuse of discretion in the trial court’s decision not to grant a preliminary injunction. See Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So.2d 842, 843 (Fla. 3d DCA 2007). Our holding is without prejudice to any subsequent proceedings below.

Affirmed.


author: ROTHENBERG, J.

text:
    Roland JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3247.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Roland Johnson, who was convicted of aggravated battery with a weapon, carrying a concealed weapon, and resisting an officer with violence, raises two grounds for reversal in this appeal: (1) his conviction for carrying a concealed weapon under section 790.01, Florida Statutes (2007), must be vacated because the “weapon” he possessed was “a common pocketknife,” which is excluded from the definition of a weapon in chapter 790, Florida Statutes (2007); and (2) the peremptory challenge of Ms. Brown by the State was unsupported by a race-neutral reason.

The Knife

Section 790.001(13), Florida Statutes (2007), excludes “a common pocketknife” from its definition of a weapon for purposes of section 790.01(1), carrying a concealed weapon. Because the instrument the defendant carried and ultimately stabbed the officer with was not a common pocketknife, we conclude that the trial court correctly submitted the question as to whether it constituted a “weapon” under the statute to the jury.

The record reflects that the instrument in question was a nail clipper, which the defendant had modified and he was carrying in an open position. By the defendant’s own admissions, he had modified the blade by sharpening the smooth side “for [his] protection,” giving it a distinctive weapon-like characteristic. Therefore, the instrument that the defendant carried in an open position and used to stab the victim — the police officer who was attempting to arrest the defendant — does not fall within the common pocketknife exclusion. See J.R.P. v. State, 979 So.2d 1178 (Fla. 3d DCA 2008) (noting that a pocketknife which has a distinctive weapon-like characteristic or is found in the open position does not fall within the common pocketknife exception); Porter v. State, 798 So.2d 855 (Fla. 5th DCA 2001) (finding that although Porter established that the blade of the knife she carried was under four inches in length, because it was carried in the open position, it did not fall within the common pocketknife exclusion); Walls v. State, 730 So.2d 294, 295 (Fla. 1st DCA 1999) (holding that “[t]o the extent that L.B. [v. State, 700 So.2d 370 (Fla. 1997) ] establishes a per se rule for the definition of common pocketknife, the rule may be invoked only by a defendant who establishes conclusively that the knife in question has a blade length of four inches or less and that it was carried in the common manner, i.e. in a folded position”).

The Peremptory Challenge of Ms. Brown

The defendant contends that the trial court erred by granting the State’s peremptory challenge of Delores Brown. When asked to provide a race-neutral and a gender-neutral reason for its peremptory challenge of Ms. Brown, an African American woman, the State explained that it was concerned that Ms. Brown’s experience as an investigator for the Broward County School Board might influence her deliberations and that she was not being truthful regarding her criminal history. Ms. Brown stated that as an investigator for the School Board she reviews police reports and employment applications and is responsible for determining whether the applicant is ultimately hired. She agreed that she is a pretty good judge of character and that “just because something is written on a police report doesn’t mean that it happened that way.” When asked whether she had ever been arrested or accused of a crime, she stated that she had not. However, a criminal history review revealed that a person with her name, address, date of birth, and social security number was charged with petit theft in 1992, which was nolle prossed after completion of a diversion program, and with criminal mischief in 1995, which resulted in a conviction with a withholding of adjudication and a term of probation. When confronted with this discrepancy, Ms. Brown claimed that her purse had been stolen and she was not the person charged in either case.

The trial court’s decision to accept or reject an attorney’s explanation for his or her peremptory challenge of a juror turns primarily on an assessment of the attorney’s credibility, which we must affirm on appeal unless clearly erroneous. Melbourne v. State, 679 So.2d 759, 764-65 (Fla.1996); Reed v. State, 560 So.2d 203, 206 (Fla.1990) (holding that trial judges are vested with broad discretion in determining whether peremptory challenges are racially motivated and an appellate court “must necessarily rely on the inherent fairness and color blindness of our trial judges who are on the scene and who themselves get a ‘feel’ for what is going on in the jury selection process”).

Based on this record, we find no abuse of discretion in concluding that the State’s peremptory challenge of Ms. Brown was supported by genuine race-neutral and a gender-neutral reasons: Ms. Brown may have been too critical of the police officers based upon her work experience and may not have been honest regarding her criminal history.

Affirmed.


text:
    Jermaine BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1207.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and WELLS, JJ.
   PER CURIAM.

Affirmed. Hood v. State, 808 So.2d 1257 (Fla. 3d DCA 2002); Register v. State, 718 So.2d 350, 352 (Fla. 5th DCA 1998).


text:
    Jose VELEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-859.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.

      Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. Jones v. State, 652 So.2d 346, 349 (Fla.1995) (“[A] taking of property that otherwise would be considered a theft constitutes robbery when in the course of the taking either force, violence, assault, or putting in fear is used.”)


author: CIKLIN, J.

text:
    STATE of Florida, Appellant, v. Horace HEWITT, Appellee.
    No. 4D08-4008.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   CIKLIN, J.

The State appeals a sentencing order, arguing that the trial court erred in not sentencing the defendant as a habitual felony offender without holding a hearing or making the required findings pursuant to section 775.084(3)(a), Florida Statutes (2008). We dismiss, finding sua sponte that a legal sentence is not an appealable order.

Under section 775.084(3)(a), before determining habitual felony offender status, a trial court is required to do the following:

(3)(a) In a separate proceeding, the court shall determine if the defendant is a habitual felony offender or a habitual violent felony offender. The procedure shall be as follows:
1. The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a habitual felony offender or a habitual violent felony offender.
2. Written notice shall be served on the defendant and the defendant’s attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant.
6. For an offense committed on or after October 1, 1995, if the state attorney pursues a habitual felony offender sanction or a habitual violent felony offender sanction against the defendant and the court, in a separate proceeding pursuant to this paragraph, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a habitual felony offender or a habitual violent felony offender, subject to imprisonment pursuant to this section unless the court finds that such sentence is not necessary for the protection of the public. If the court finds that it is not necessary for the protection of the public to sentence the defendant as a habitual felony offender or a habitual violent felony offender, the court shall provide written reasons; a written transcript of orally stated reasons is permissible, if filed by the court within 7 days after the date of sentencing. Each month, the court shall submit to the Office of Economic and Demographic Research of the Legislature the written reasons for transcripts in each case in which the court determines not to sentence a defendant as a habitual felony offender or a habitual violent felony offender as provided in this subparagraph.

Prior to the sentencing hearing, the State filed timely notice of intent to declare the defendant a habitual felony offender. At the sentencing hearing, the trial court was invited into the plea dialogue by defense counsel and therefore offered the defendant the lowest permissible prison sentence, according to the defendant’s scoresheet of 43.8 months. See State v. Warner, 762 So.2d 507, 513 (Fla. 2000) (While a “trial court must not initiate a plea dialogue ... at its discretion, it may (but is not required to) participate in such discussions upon request of a party.”). The State continued to press for a habitual felony offender designation. Over the State’s objection, the trial court decided to sentence the defendant to 43.8 months in prison without designating him a habitual felony offender. The trial court did not conduct a separate habitual felony offender hearing or provide any written or oral reasons for its decision.

The trial court’s failure to conduct a separate hearing or make written or oral findings on the defendant’s habitual felony offender status was in error. However, while not raised on appeal, this court is obligated to find that it lacks subject matter jurisdiction to review this issue. See Ruffin v. Kingswood E. Condo. Ass’n, Inc., 719 So.2d 951, 952 (Fla. 4th DCA 1998) (“It is well settled that lack of subject matter jurisdiction may be raised sua sponte by an appellate court.”) (citation omitted); Polk County v. Sofka, 702 So.2d 1243, 1245 (Fla.1997) (“However, ‘[cjourts are bound to take notice of the limits of their authority and if want of jurisdiction appears at any stage of the proceedings, original or appellate, the court should notice the defect and enter an appropriate order.' ”) (citation omitted).

Section 924.07(l)(e)(i), Florida Statutes (2008), permits the State to challenge a sentence “on the ground that it is illegal” or one that is “imposed below the lowest permissible sentence established by the Criminal Punishment Code under chapter 921.” Neither of these grounds apply in this case. A sentence cannot be deemed illegal due to procedural error if it is within statutory limits. See State v. Riley, 648 So.2d 825, 826 (Fla. 3d DCA 1995). In Riley, the State appealed the trial court’s refusal to make habitual felony offender findings and instead imposed a guidelines sentence. The appellate court affirmed, stating:

The State argues that the absence of mandatory findings renders the sentence illegal.... We disagree. The sentence imposed on defendant is one which is within statutory limits and is therefore a legal sentence.... There is no basis for vacating the guidelines sentence, which is a legal and permissible one.

Id. (citation omitted); see also State v. Figueroa, 728 So.2d 787 (Fla. 4th DCA 1999) (State could not appeal a final sentencing order imposing a legal sentence).

Although the trial court erred in not conducting a separate hearing or making findings, the sentence imposed was within the lowest permissible prison sentence of 43.8 months and, therefore, was not illegal or an appealable order by the State.

As a result, this appeal must be dismissed.

Dismissed.

MAY and DAMOORGIAN, JJ., concur.


text:
    Robert Anthony WEST, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-217.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2009.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Robert A. West, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Robert Anthony West appeals the judgment and sentence adjudicating him guilty in case number 06-6244 of burglary of a dwelling with a battery and a firearm, false imprisonment with a weapon, and battery. The court sentenced West on the burglary charge to ten years in prison with a ten-year firearm minimum mandatory sentence, with credit for time served of one year and 184 days, followed by ten years of probation. The court concurrently sentenced West to one year and 184 days on the false imprisonment count and one year on the battery count, with credit for time served. West asserts that his convictions for burglary with a battery and battery violate double jeopardy. We agree.

The courts have consistently held that convictions for burglary with a battery in violation of section 810.02(2)(a), Florida Statutes (2006), and battery in violation of section 784.03(l)(a), Florida Statutes (2006), violate double jeopardy. Bracey v. State, 985 So.2d 704, 705 (Fla. 5th DCA 2008); Lewis v. State, 740 So.2d 82, 82 (Fla. 3d DCA 1999); Lyles v. State, 724 So.2d 138, 138 (Fla. 1st DCA 1998); Bradley v. State, 540 So.2d 185, 187 (Fla. 5th DCA 1989); Spradley v. State, 537 So.2d 1058,1061 (Fla. 1st DCA 1989). The State even agreed during trial that battery is a lesser included offense of burglary with a battery.

Accordingly, we reverse the battery conviction and sentence in case number 06-6244 and remand this case to the trial court with instructions to vacate that conviction and sentence. Bracey. We affirm West’s other convictions and sentences in both case numbers 06-6241 and 06-6244.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      . West also appeals his convictions and sentences in case number 06-6241, which was consolidated for trial with case number 06-6244. In case number 06-6241, the jury found West guilty of armed burglary of a dwelling with a firearm, kidnapping, and armed carjacking. The court sentenced him on each count to fifteen years in state prison with a ten-year firearm minimum mandatory, with credit for one year and 184 days, followed by ten years of reporting probation, all to run concurrently, but to run consecutively to the sentence in case number 06-6244. West raises two other issues: the trial court erred in instructing the jury regarding out-of-court statements made by West that were introduced during the trial; and the trial court erred in giving the jury an instruction regarding the carjacking offense that included standard language utilized when a victim is administered a substance that causes the victim to become unconscious. Not only did West fail to object to these alleged errors during the trial, we find them totally without merit and affirm as to each.

      . We find unavailing the State’s argument that there is no double jeopardy violation because West was convicted of a crime it labels "domestic battery.” The judgment rendered by the trial court adjudicates West guilty of “battery domestic violence,” citing only to the misdemeanor battery statute in section 784.03, Florida Statutes (2007).


text:
    Jermaine D. LOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4118.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.

      Jermaine D. Logan, Graceville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009). Appellant is cautioned that continued abuse of the post-conviction process by filing frivolous or repetitive motions and/or appeals will result in sanctions. State v. Spencer, 751 So.2d 47 (Fla.1999); Thurston v. State, 920 So.2d 1229 (Fla. 4th DCA 2006).

WARNER, HAZOURI and CIKLIN, JJ., concur.


text:
    James WITHROW, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-938.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    James Withrow, E still, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant’s motions for post conviction relief were dismissed by the trial court for lack of proper oaths. Scott v. State, 464 So.2d 1171 (Fla.1985). The orders did not permit amendment, contrary to the procedures announced in Spera v. State, 971 So.2d 754 (Fla.2007). However, we affirm the dismissal, which we will treat as a denial in these circumstances, because appellant did subsequently file motions with proper oaths, and more importantly, because his motions are without merit on their substance grounds. See Gusow v. State, 6 So.3d 699 (Fla. 4th DCA 2009); see also Major v. State, 814 So.2d 424 (Fla.2002) (holding that neither the trial court nor defense counsel has any duty to advise a defendant entering a plea that the plea may have sentencing enhancing consequences on a sentence imposed for a crime committed in the future).

GROSS, C.J., POLEN and TAYLOR, JJ., concur.


text:
    Cesar LOMELIN-FLORES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3061.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Cesar Lomelin-Flores entered a no contest plea to charges of DUI manslaughter and driving with a suspended license. Then, less than thirty days after the imposition of sentence for such offenses, he filed a pro se motion to withdraw plea, citing Florida Rule of Criminal Procedure 3.170(f), governing the withdrawal of pleas prior to the imposition of sentence. The trial court summarily denied the motion as untimely. We agree with Lomelin-Flores’s appellate claim that the trial court should have treated the defendant’s motion as one filed pursuant to Florida Rule of Criminal Procedure 3.170(0, governing motions to withdraw plea filed after the imposition of sentence, and ruled on the merits of the claims asserted. See Hulett v. State, 830 So.2d 243, 244 (Fla. 4th DCA 2002). Nonetheless, we affirm the summary denial as the claims asserted in the motion are either conclusively refuted by the record or facially insufficient. See Sheppard v. State, 17 So.3d 275, 287 (Fla. 2009) (holding that trial court should appoint conflict-free counsel where it has determined, following a limited hearing, that adversarial relationship exists between defendant and current counsel, provided allegations of defendant’s pro se motion are not conclusively refuted by the record).

Affirmed.

POLEN, STEVENSON and GERBER, JJ., concur.


text:
    Eduardo Albert DIAZ, Appellant, v. The STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 3D08-2079.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.
    Thomas J. Butler, Miami Beach, for appellant.

      Garnett W. Chisenhall, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Eduardo Albert Diaz (“Diaz”) appeals a final order issued by the Florida Real Estate Appraisal Board (“Board”) revoking his license to practice as a state certified residential real estate appraiser in the State of Florida. We reverse and remand for an informal hearing.

After conducting an investigation, the Florida Department of Business and Professional Regulation, Division of Real Estate (“the Division”), which provides the Board with recordkeeping, examination, legal, and investigative services, issued, and on April 23, 2009, served Diaz with a nine-count complaint, alleging he had manipulated sales data inflating the value of a particular parcel of real property. The complaint advised Diaz that he had twenty-one days to file an “Election of Rights” form or other responsive pleading and that the failure to do so would result in the Division’s request for an informal hearing and the entry of a final order that could result in the suspension or revocation of Diaz’s residential real estate appraiser license. Attached to the complaint was an Explanation of Rights and Election of Rights form.

When Diaz failed to respond to the administrative complaint, the Division requested and was granted an informal hearing pursuant to section 120.57(2), Florida Statutes (2008). On May 21, 2008, the Division sent Diaz a Notice of Hearing informing him that an informal hearing had been scheduled for June 2, 2008, in Orlando, Florida.

In a letter dated May 29, 2008, counsel for Diaz provided an executed Election of Rights form and requested a continuance of the hearing. As scheduled, the Board convened on June 2, 2008, although neither Diaz nor his counsel were present. The Board ultimately denied Diaz’s request for a continuance; granted the Division’s motion to consider the case by way of an informal hearing; and after conducting the informal hearing, issued a final order revoking Diaz’s license.

Diaz’s appeal raises two issues: (1) whether the denial of his continuance was an abuse of discretion; and (2) whether the Board properly used an informal administrative hearing procedure to address the allegations raised in the complaint. Because the Division does not object to a remand by this Court for the Board to conduct a new informal hearing to allow Diaz’s presence, we address only the second issue raised by Diaz in this appeal.

Section 120.57(1), Florida Statutes (2008), governs formal administrative hearings, and section 120.57(2) governs informal administrative hearings. If a party wants a formal administrative hearing he/ she must timely request one. Rule 28-106.111(2) of the Florida Administrative Code provides that “persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.” “Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters.” Fla. Admin. Code R. 28-106.111(4).

Because Diaz does not dispute that he was served with the administrative complaint on April 23, 2009, and he did not request a formal hearing within twenty-one days as required by rule 28-106.111(2), we conclude that he has waived his right to a formal administrative hearing. See Patz v. Fla. Dep’t of Health, 864 So.2d 79, 79-80 (Fla. 3d DCA 2003) (holding that because Patz did not file an Election of Rights form or otherwise request a formal hearing within the twenty-one day period, he waived his right to an administrative hearing); see also Aleong v. Fla. Dep’t. of Bus. & Prof'l Regulation, 963 So.2d 799, 801-02 (Fla. 4th DCA 2007) (upholding the Board of Veterinary Medicine’s order granting the Department of Business and Professional Regulation’s Motion for Waiver of Rights filed after Dr. Aleong failed to timely request a hearing to dispute the Department’s allegations, relying on Florida Administrative Code Rule 28-106.111(2007)). Although we have concluded that Diaz waived his right to a formal administrative hearing, based on the Division’s statement in its answer brief that it has no objection to this Court remanding the case for an informal hearing to allow Diaz to appear in person, we reverse the order under review and remand for an informal hearing.

Reversed and remanded.


text:
    Leticia MERA, Appellant, v. EMC MORTGAGE CORPORATION, Appellee.
    No. 2D09-1826.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.
    John H. Ruiz of John H. Ruiz, P.A., Miami, for Appellant.
    Forrest G. McSurdy of Stern & McSur-dy, Attorneys at Law, Law Offices of David J. Stern, P.A., Plantation, for Appel-lee.
   PER CURIAM.

Leticia Mera, defendant below in a foreclosure action, appeals a final summary judgment in favor of EMC Mortgage Corporation. In lieu of an answer brief, EMC has filed a proper concession of error and joins with Mera in asking this court to reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

NORTHCUTT, VILLANTI and KHOUZAM, JJ., Concur.


text:
    FIRST FLORIDA BANK, a Florida Chartered Commercial Bank, Appellant, v. ADVANTAGE BUILDERS OF AMERICA, INC., d/b/a Advantage Builders, Appellee.
    No. 2D09-267.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.

      Joseph G. Foster and Javier A. Pacheco of Porter Wright Morris & Arthur LLP, Naples, for Appellant.
    Billy Joe L. McFarland, Cape Coral, for Appellee.
   PER CURIAM.

Affirmed. See Blosam Contractors, Inc. v. Republic Mortgage Investors, 353 So.2d 1225 (Fla. 2d DCA 1977); Emerald Designs, Inc. v. Citibank F.S.B., 626 So.2d 1084 (Fla. 4th DCA 1993); Morgen-Oswood & Assocs., Inc. of Fla. v. Cont’l Mortgage Investors, 323 So.2d 684 (Fla. 4th DCA 1975).

WHATLEY, SILBERMAN, and CRENSHAW, JJ., Concur.


author: KELLY, Judge.

text:
    Christopher J. RAHAIM, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4872.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Christopher Rahaim appeals his judgment and sentence for sexual battery. We affirm his judgment and sentence without discussion but reverse the restitution order and remand for a new restitution hearing.

In imposing sentence on Rahaim, the trial court set a later hearing to determine restitution. Before the restitution hearing took place, Rahaim filed a notice of appeal. The trial court then conducted the hearing and entered the restitution order. Rahaim contends, and the State concedes, that the trial court lacked jurisdiction to enter the restitution order after the notice of appeal had been filed. See Williams v. State, 19 So.3d 433 (Fla. 2d DCA 2009). Accordingly, we reverse and remand to allow the trial court to reimpose restitution. See L’Heureux v. State, 968 So.2d 628 (Fla. 2d DCA 2007).

Affirmed in part, reversed in part, and remanded.

DAVIS and CRENSHAW, JJ., Concur.


text:
    David Paul ROGOZ v. TANGIPAHOA PARISH COUNCIL.
    No. 2008-CA-2789.
    Supreme Court of Louisiana.
    Jan. 30, 2009.
   PER CURIAM.

| defendant, the Tangipahoa Parish Council, invokes the appellate jurisdiction of this court pursuant to La. Const, art. V, § 5(D), on the ground that the district court declared Chapter 5, Seetion5-38(b) and (c) of Tangipahoa Parish Ordinance Number 07-39 to be unconstitutional. For the reasons that follow, we conclude the issue of constitutionality was not properly raised in the district court. Accordingly, we vacate the judgment of the district court and remand the case for further proceedings.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Plaintiff, David Paul Rogoz, owns immovable property located in Tangipahoa Parish. On April 24, 2007, plaintiff applied to Tangipahoa Parish for a permit to sell alcoholic beverages at his business, the “Double D Saloon.” Pursuant to Chapter 5, Section 5-38, (b) and (c) of Tangipahoa Parish Ordinance Number 07-39 (hereinafter referred to as the “ordinance”), as adopted on May 14, 2007, plaintiff was required to obtain the written, notarized consent of all adjacent property owners in order to | .¿obtain the permit. Plaintiff was only able to obtain the consent of four of his neighbors, with the fifth neighbor filing a written objection to the issuance of an alcohol permit. Accordingly, the permit was denied.

Subsequently, plaintiff filed a petition captioned “Petition for Mandamus and Declaratory Judgment” against the Tangipa-hoa Parish Council (hereinafter referred to as “the parish”). Plaintiffs petition alleged, in pertinent part:

Plaintiff shows that the ordinance requiring the notarized affidavits of consent of neighbors to a facility (bar, tavern, lounge, etc.) is an illegal attempt at zoning whereas Tangipahoa Parish has no zoning ordinance in effect and is unconstitutional on its face and should be so declared.

As relief, plaintiff prayed that the parish be ordered to show cause why section 5-38(b) and (c) of Chapter 5 of the Tangipa-hoa Parish Ordinance No. 07-39 should not be declared unconstitutional. Plaintiff also prayed that the parish be ordered to show cause why it should not be ordered to issue the license for which plaintiff applied.

In response, the parish filed dilatory exceptions of unauthorized use of summary proceedings and improper cumulation of actions. In support, the parish argued that by styling his petition as a rule to show cause, plaintiff was seeking to | shave his petition for declaratory judgment (an ordinary proceeding) tried as a summary proceeding. The parish further argued plaintiff improperly cumulated his mandamus action (a summary proceeding) with his petition for declaratory judgment (an ordinary proceeding),

Plaintiff responded by filing an amended petition deleting his request for a writ of mandamus and rule to show cause. Based on this amended petition, the parish apparently concluded that the objections raised by its exception had been cured, and filed an answer to plaintiffs petition.

The matter then proceeded to a hearing before the district court. At the conclusion of the hearing, the district court ruled in favor of plaintiff, finding the ordinance unconstitutional. In oral reasons for judgment, the court stated, in pertinent part:

I would tell you that I think that in enacting this ordinance, the Council’s heart was in the right place and I understand what they’re trying to do and I don’t think in general, that that’s a bad idea. However, sometimes we enact things that are a little bit too broad to cover the situation. I think that’s what happened here. Again, I think their heart’s in the right place, but the situation comes down to this, this gentleman, the plaintiff has done everything necessary to open up his establishment, with the exception of Chapter 5, Section 538(b) and (c) of the Tangipahoa Parish Ordinance number, which the number specifically is 7-39, which requires the written notarized consent of the neighbors. I note that there was one that didn’t consent. There were others, that did. But in our situation quite frankly, at that point, the Tangipahoa Parish Council doesn’t have a zoning ordinance enacted, which might change my thinking, there’s not anything enacted. This is an attempt to zone where there’s a zoning ordinance that doesn’t exist. Therefore, based on that, I would find in favor of the plaintiff and rule the ordinance in question unconstitutional.

' On June 2, 2008, the district court signed a written judgment declaring the ordinance unconstitutional. The judgment provided, in pertinent part:

|JT IS ORDERED, ADJUDGED AND DECREED that Chapter 5, Section 5-38(b) and (c) of Tangipahoa Parish ordinance Number 07-39 is hereby declared unconstitutional.

On June 10, 2008, the parish filed a motion for suspensive appeal, praying that it be granted a suspensive appeal, without bond, returnable to the Court of Appeal, First Circuit. After the appeal was lodged, the Court of Appeal, First Circuit concluded it lacked jurisdiction over the appeal and transferred it to this court.

DISCUSSION

Our jurisprudence has consistently recognized that a constitutional challenge to a law or ordinance must be specially pleaded and the grounds for the claim particularized. Arrington v. Galen-Med, Inc., 06-2923 (La.2/2/07), 947 So.2d 719; Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533; Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 6 (La.1/19/05), 903 So.2d 392 (on rehearing). In Vallo v. Gayle Oil Company, Inc., 94-1238, p. 9 (La.11/30/94), 646 So.2d 859, 865, we explained that the purpose of this requirement was to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for this court’s review:

The requirement of specially pleading the unconstitutionality of a statute in pleadings implies that this notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf. LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recovery Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-588 (La.1988).

|¡iln the instant case, our review of the record reveals that nothing in plaintiffs original or amended petition specifies any particular provisions of the constitution which he believes the ordinance violated. Rather, his petition merely makes the con-elusory allegation that the ordinance was “an illegal attempt at zoning whereas Tan-gipahoa Parish has no zoning ordinance in effect and is unconstitutional on its face and should be so declared.” Similarly, at the hearing, plaintiffs attorney did not identify any specific constitutional provisions which the ordinance violated. Thus, we are unable to determine from this record whether plaintiff satisfied his burden of identifying a particular constitutional provision that limited the power of the parish to enact this ordinance. See, e.g., Board of Commissioners v. Department of Natural Resources, 496 So.2d 281, 286 (on rehearing) (“to hold legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the legislature to enact such a statute”).

Moreover, we have consistently held that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of this is essential to the decision of the case or controversy. Cat’s Meow v. City of New Orleans, 98-0601 at p. 16 (La.10/20/98), 720 So.2d 1186, 1199. Further, our jurisprudence has resolved that the practice of courts is “never to anticipate a question of constitutional law in advance of the necessity of deciding it.” Matheme v. Gray Ins. Co., 95-0975 at p. 3 (La.10/16/95), 661 So.2d 432, 434. In the instant case, there is no indication the district court made a specific determination that the constitutional issue was essential to the resolution of the case. Rather, it seems the district court simply accepted plaintiffs vague assertion that the ordinance was unconstitutional.

|fiUnder these circumstances, the record is woefully inadequate for the purpose of allowing us to determine whether plaintiff sustained his burden of proving that the ordinance was unconstitutional, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. Pretermitting the merits, we conclude that the issue of constitutionality was not properly raised by plaintiff, and the district court acted prematurely in declaring the ordinance unconstitutional. Accordingly, we must vacate the district court’s judgment of unconstitutionality and remand the case to the district court for further proceedings.

DECREE

For the reasons assigned, the judgment of the district court declaring Chapter 5, Section 5-38, (b) and (c) of Tangipahoa Parish Ordinance Number 07-39 to be unconstitutional is vacated and set aside. The case is remanded to the district court for further proceedings consistent with this opinion.

      . The ordinance provides in part:
      Sec. 5-38. Location of establishments restricted.
      (B) Any facility (bar, tavern, lounge, etc.) selling alcoholic beverages in a residential area in open containers for consumption on premises within five hundred feet (500') of any adjacent property shall have written, notarized consent of adjacent property owners. If said facility does not meet the requirements of this ordinance, permit will be prohibited. This excludes convenience stores or any facility selling packaged liquor which will not be consumed on premises. This does not apply to any facility that is already permitted.
      (c) The written, notarized consent of adjacent properly owners shall be submitted as part of the application to the T.P. Sheriff’s Office for Beer, Wine & Liquor Permit.

      . According to plaintiff, the objection was filed by a neighbor who lives 350 feet from plaintiff’s property.


text:
    In re Joanne S. ENGUM.
    No. 2009-B-1619.
    Supreme Court of Louisiana.
    Oct. 28, 2009.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

Count I — The Stokes/Crockett Matter

In March 2003, Lois Stokes and Michael Crockett hired respondent to represent Mr. Crockett in a criminal matter. They paid respondent $1,500, with the understanding that they would pay an additional $500 when Mr. Crockett was released from jail.

Respondent properly handled the representation until May 2003, when she began a new job as an assistant district attorney for the Orleans Parish District Attorney’s Office, which required her to relocate from Baton Rouge to New Orleans. Respondent relocated without properly notifying her client and without providing an accounting or refund of unearned fees.

|2In July 2003, Ms. Stokes filed a complaint against respondent with the ODC. Respondent failed to fully cooperate with the ODC in its investigation, necessitating the issuance of a subpoena to obtain her sworn statement. During her April 27, 2004 sworn statement, respondent indicated that she planned to provide Ms. Stokes with an accounting and refund of unearned fees by April 29, 2004. Respondent did not provide the $1,500 refund to Ms. Stokes until August 2004.

The ODC alleged that respondent’s conduct violated Rules 1.4 (failure to communicate with a client), 1.5 (fee arrangements — failure to account for or refund an unearned fee), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.

Count II — The Simmons/King Matter

In early 2002, Cynthia Simmons hired respondent to represent her in a sexual harassment and wrongful termination claim against her former employer. Respondent neglected the matter and failed to communicate with Ms. Simmons regarding the status of her case.

In April 2002, Andrew King hired respondent to represent him in a criminal matter. Ms. Simmons and Mr. King reportedly paid respondent $1,500 towards her $2,500 flat fee at that time, and the remaining balance, $1,000, in June 2002.

Respondent neglected Mr. King’s criminal case and failed to attend his November 2002 parole hearing. She also failed to communicate with Mr. King, ^especially regarding the fact that she could no longer represent him once she accepted a position as an assistant district attorney.

Respondent failed to account for or refund the unearned fee. Respondent only acknowledges receipt of the $1,000 payment, and she maintains that she refunded that amount prior to starting her job with the Orleans Parish District Attorney’s Office in May 2003. Ms. Simmons denied receiving a refund from respondent, and respondent did not provide evidence of the refund.

In July 2004, Ms. Simmons and Mr. King filed a complaint against respondent with the ODC. Respondent failed to fully cooperate with the ODC in its investigation.

The ODC alleged that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4, 1.5, 1.16(d), 8.1(c) and 8.4(a) of the Rules of Professional Conduct.

Count III — The Soo Matter

In August 2001, David Low Keng Soo hired respondent to represent him in a claim against Guarantee System Construction & Restoration, Inc. (“Guarantee”), paying her $400 towards the retainer. In November 2001, Guarantee filed suit against Mr. Soo in the 19th Judicial District Court for the Parish of East Baton Rouge. In December 2001, respondent filed an answer and reconventional demand on behalf of Mr. Soo and his co-defendant.

In May 2003, respondent began a new job as an assistant district attorney for the Orleans Parish District Attorney’s Office. Nonetheless, she continued to represent Mr. Soo in the Guarantee litigation.

|4In July 2003, Guarantee filed a motion for summary judgment. Respondent traveled to Baton Rouge from New Orleans to attend the summary judgment hearing set for November 10, 2003. Mr. Soo paid respondent an additional $500 in attorney’s fees in connection with the hearing, plus $163.85 to cover her lodging while in Baton Rouge. However, because Guarantee had never filed an answer to the reconventional demand, the hearing was reset for December 8, 2003.

Thereafter, Guarantee filed its answer to the reconventional demand and noticed the deposition of Mr. Soo for December 1, 2003. Respondent was properly notified of the deposition but failed to notify Mr. Soo. Neither respondent nor Mr. Soo appeared for the deposition.

On December 4, 2003, respondent filed a memorandum in opposition to Guarantee’s motion for summary judgment. However, respondent failed to appear at the summary judgment hearing due to a medical emergency. She faxed a letter to the presiding judge to advise of her medical condition; however, she failed to obtain a continuance of the hearing or associate counsel to appear in her absence. The hearing went forward, and judgment was granted against Mr. Soo. Respondent discussed with Mr. Soo his option to appeal the judgment; however, respondent ultimately did not file an appeal.

In November 2004, Mr. Soo filed a complaint against respondent with the ODC. Respondent failed to fully cooperate with the ODC in its investigation.

The ODC alleged that respondent’s conduct violated Rules 1.1 (failure to provide competent representation to a client), 1.3, 1.4, 8.1(c), 8.4(a), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

1 .DISCIPLINARY PROCEEDINGS

In November 2006, the ODC filed three counts of formal charges against respondent as set forth above. Respondent initially failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). Thereafter, respondent filed a motion to recall the deemed admitted order, which the hearing committee chair granted. Respondent subsequently filed a pleading captioned “Motion for Out of Time Written Arguments and Evidence on the Issue of Sanctions,” in which she denied the charges against her. Accordingly, the matter proceeded to a formal hearing on the merits. Respondent did not appear at the hearing, nor was counsel present to represent her.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee determined that the testimony of the witnesses corroborated, in detail, the allegations in the formal charges. Accordingly, the committee found that respondent violated Rules 1.3, 1.4, 1.5, 1.16(d), 8.1(c), and 8.4(d) of the Rules of Professional Conduct.

The committee determined that respondent acted knowingly and caused injury to her clients and the disciplinary system. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that suspension is the baseline sanction.

|fiThe committee found the aggravating factors of multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and vulnerability of the victims. In mitigation, the committee found the following factors: absence of a prior disciplinary record, personal problems (respondent moved to a new city to begin a new job shortly before becoming a single parent and reportedly experienced health and financial problems), and inexperience in the practice of law (admitted 1999).

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

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

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s factual findings do not appear to be manifestly erroneous. The board also found that the record supports the facts alleged in the formal charges. Based on those facts, the board determined that respondent violated the Rules of Professional Conduct as charged in the Stokes/Crockett matter and the Simmons/King matter. However, in the Soo matter, the board determined that respondent only violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

|7The board determined that respondent knowingly violated duties owed to her clients and the legal profession. She caused actual harm to Ms. Stokes and Ms. Simmons and potential harm to Mr. Soo. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that suspension is the baseline sanction. The board agreed with the aggravating and mitigating factors found by the committee, except that the board declined to adopt the mitigating factor of inexperience in the practice of law. Notwithstanding that respondent had been admitted to the bar for less than five years at the time of the misconduct, the board reasoned that she had been in practice long enough that she should have understood her obligations with respect to the rules that were violated (for example, failure to return a clearly unearned fee).

After considering this court’s prior jurisprudence involving similar misconduct, the board recommended that respondent be suspended from the practice of law for one year and one day. The board also recommended that respondent pay restitution to Ms. Simmons.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.l1/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the | shearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record of this matter supports a finding that respondent neglected legal matters, failed to communicate with her clients, failed to timely account for or refund unearned fees, and failed to fully cooperate with the ODC in its investigations. Accordingly, the record supports a finding that respondent violated Rules 1.3, 1.4, 1.5, 1.16(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

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

In acting as she did, respondent knowingly violated duties owed to her clients and the legal profession. She caused harm to her clients, as well as to the disciplinary system. The baseline sanction for this type of misconduct is a period of suspension.

Aggravating factors include multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and vulnerability of the victims. Mitigating factors present are the absence of a prior disciplinary record and personal problems.

In In re: Armato, 07-0500 (La.6/1/07), 958 So.2d 650, we suspended an attorney for one year and one day for neglecting two legal matters, failing to | pcommunicate with his clients, failing to protect his clients’ interests upon termination of the representation, and failing to cooperate with the ODC in its investigation. We find that a similar sanction is appropriate in the instant matter.

Accordingly, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day. We also order respondent to pay restitution to Ms. Simmons.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Joanne S. En-gum, Louisiana Bar Roll number 26024, be and she hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that respondent pay restitution to Cynthia Simmons. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . Respondent has been ineligible to practice law in Louisiana since September 29, 2007 for failure to comply with the mandatory continuing legal education requirements. She is also ineligible for failure to pay her bar dues and the disciplinary assessment.

      . At some point, respondent apparently decided that she would not handle Ms. Simmons’ case, but she did not notify Ms. Simmons of that fact.

      . Respondent claimed her clients advised her that it was not necessary for her to attend the hearing because they were confident Mr. King would be granted parole. However, his parole was ultimately denied.

      . Because respondent's pleading was not captioned as an answer to the formal charges, the factual allegations were again deemed admitted and proven by clear and convincing evidence and no formal hearing was held. The hearing committee then filed its report recommending respondent be suspended from the practice of law for one year. The disciplinary board, however, vacated the deemed admitted order and remanded the matter for a formal hearing on the merits.

      . As to the remaining charges alleged, the board agreed that respondent did not violate Rule 1.1 because there was no evidence that her conduct rose to the level of incompetence, although it clearly demonstrated a lack of diligence and communication. The ODC also alleged that respondent engaged in dishonest and deceitful conduct, in violation of Rule 8.4(c), by misleading Mr. Soo into thinking that she would file an appeal of the adverse summary judgment ruling. However, the board found there was not clear and convincing evidence in the record that respondent ever agreed to pursue an appeal on Mr. Soo's behalf. Finally, as to the alleged violation of Rule 8.4(d), the board determined that respondent's failure to appear for the summary judgment hearing or to secure substitute counsel did not rise to the level of conduct prejudicial to the administration of justice because she informed her clients and the judge about her medical emergency prior to the hearing.


text:
    In re Mary C. TAVARY.
    No. 2009-OB-2399.
    Supreme Court of Louisiana.
    Nov. 18, 2009.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

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

CONDITIONAL ADMISSION GRANTED.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.


text:
    In re Flitcher R. BELL.
    No. 2009-B-2457.
    Supreme Court of Louisiana.
    Nov. 18, 2009.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Flitcher R. Bell, and the Office of Disciplinary Counsel,

IT IS ORDERED that Flitcher R. Bell, Louisiana Bar Roll number 26193, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    In re Michael H. COLVIN.
    No. 2009-OB-1447.
    Supreme Court of Louisiana.
    Nov. 18, 2009.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by respondent, Michael H. Colvin, and the findings and recommendation of the hearing committee,

IT IS ORDERED that Michael H. Col-vin, Louisiana Bar Roll number 4355, be and he hereby is transferred to disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C).

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


text:
    In re Elizabeth Ashley BRUNET-ROBERT.
    No. 2009-B-2476.
    Supreme Court of Louisiana.
    Nov. 20, 2009.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Elizabeth Ashley Brunet-Robert, Louisiana Bar Roll number 28879, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


text:
    In re Joseph M. BRUNO.
    No. 2009-OB-2227.
    Supreme Court of Louisiana.
    Nov. 20, 2009.
   I,ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, Joseph M. Bruno, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Bruno, 06-2791 (La.5/11/07), 956 So.2d 577, petitioner was suspended from the practice of law for three years, with eighteen months deferred, for making a prohibited monetary payment to a witness and failing to correct statements made to a tribunal by his co-counsel which he knew to be false. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging that he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) filed an opposition to the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

After considering the evidence presented, the hearing committee recommended that petitioner be reinstated to the practice of law. A majority of the disciplinary board agreed that petitioner has satisfied the requirements for reinstatement by clear |2and convincing evidence. Accordingly, the board recommended to this court that petitioner be granted reinstatement.

After considering the record in its entirety, we will adopt the disciplinary board’s recommendation. Petitioner shall be reinstated to the practice of law.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Joseph M. Bruno, Louisiana Bar Roll number 3604, be immediately reinstated to the practice of law in Louisiana. All costs of these proceedings are assessed against petitioner.

VICTORY, J., dissents and would deny reinstatement.

         Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.


author:
PER CURIAM
     PER CURIAM.

text:
    In re Michael A. FENASCI.
    No. 2009-B-1665.
    Supreme Court of Louisiana.
    Nov. 20, 2009.
    Order Granting Rehearing in Part Feb. 5, 2010.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael A. Fenasci, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

In a sworn statement to the ODC, Joel Merrick stated that beginning in the early 1990s he worked for respondent as a “runner” to solicit prospective clients in Plaquemines Parish. On November 30, 1997, Mr. Merrick entered into an employment contract with respondent’s law firm, Fenasci & Associates, whereby Mr. Merrick acted as an independent contractor to perform services for the law firm, including maintaining direct contact with clients. Mr. Merrick stated that respondent generally paid him fifteen percent of the amount recovered in a given case.

At some point, Mr. Merrick brought respondent the case of his cousin, Roy Jones, who was injured in a 1994 gasoline pipeline eruption. On November 21, 1996, respondent issued two checks payable to Mr. Jones, in the amounts of $50,000 and 12$100,000, respectively, as “settlement funds.” Both checks were signed by respondent but drawn on the bank account of Estate Management Consultants, Inc.

In February 1999, respondent paid Mr. Merrick $309,725.91 by check drawn on his client trust account and payable to D.L.J.S.C., which is reportedly an investment company respondent established. Respondent also purchased a BMW automobile for Mr. Merrick’s use.

On October 27, 1999, Mr. Merrick retained respondent’s services for a claim of police brutality during his arrest on July 18, 1999 by a New Orleans police officer. On July 18, 2000, respondent filed suit on Mr. Merrick’s behalf. He also advanced funds for Mr. Merrick’s surgeries, medical treatment, and diagnostic testing. In August 2002, respondent began providing Mr. Merrick with a monthly stipend for “necessary living expenses.”

In October 2000, respondent requested and obtained a $5,500 loan from Mr. Merrick. In December 2000, respondent requested and obtained a $25,000 loan from Mr. Merrick. In response to the ODC’s request for an explanation of these loans, respondent advised that he had entered into an oral agreement with Mr. Merrick that in exchange for a loan of $30,000 for six months, respondent would forgive approximately $2,800 in debt which Mr. Merrick owed to his law firm. Respondent repaid the $30,000 loan on June 11, 2001 with a check drawn on his client trust account. Respondent stated that he borrowed money from Mr. Merrick to finance an oil spill case. He also stated that it was a “pretty straightforward transaction” and that Mr. Merrick received interest. Respondent further stated that “Mr. Merrick has been |sloaned Tens of Thousands of Dollars by the firm, which he has not repaid and he is not being charged interest on those loans.”

On January 13, 2004, respondent filed a criminal complaint against Mr, Merrick with the Jefferson Parish Sheriffs Office for attempted extortion and for making threats against respondent, his fiancee, and his secretary. By letter dated March 11, 2004, Mr. Merrick terminated respondent’s services.

DISCIPLINARY PROCEEDINGS

In June 2007, the ODC filed one count of formal charges against respondent as set forth above. Based on the above factual allegations, the ODC alleged that respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.8(a) (a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client), 1.8(e) (a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation), 1.15(a)(b) (safekeeping property of clients or third persons), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 7.2(a) (a lawyer shall not give anything of value to a person for recommending the lawyer’s services), 7.3(a) (direct contact with prospective clients), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent answered the formal charges, denying the factual allegations set forth above as well as the alleged rule violations.

| ^Hearing Committee Report

This matter proceeded to a formal hearing on the merits. After considering the testimony and evidence presented at the hearing, the hearing committee made the following findings:

Mr. Merrick testified extensively during the hearing. However, the committee found him at times to be evasive and at other times to be contentious, and concluded that much of his testimony was of “questionable credibility.” The committee found respondent and his witnesses to be credible.

Mr. Merrick testified that he made $5,500 and $25,000 loans to respondent in October and December 2000, while he was working for respondent and apparently while respondent was also handling a personal injury case for him (although Mr. Merrick was uncertain as to the timing of the personal injury case). The loans were repaid within a couple of months. Mr. Merrick also testified that respondent did not suggest that he consult an attorney before making the loans. However, respondent testified that he did suggest to Mr. Merrick that he consult an attorney, and Mr. Merrick did, in fact, consult two attorneys. There was no evidence that Mr. Merrick signed a required written informed consent form regarding a consultation with another attorney. Respondent admitted that the loan was not reduced to writing in the form of a note or otherwise.

Mr. Merrick received payments from respondent in compensation for his services. He also received loans and advances from respondent, averaging approximately $1,500 per month for a period of time while in necessitous circumstances, for undocumented living expenses.

Respondent acknowledged that, due to sloppy business practices, he sometime made payments from his client trust account directly to various individuals and | Sentities, such as Peake BMW for auto repairs to Mr. Merrick’s vehicle, loan payments, and a number of individuals who provided assistance on cases. However, respondent testified that the money he took from the client trust account was his earned attorney’s fees and not client funds. No evidence was introduced at the hearing to indicate otherwise, and there was no evidence of conversion of any client’s funds.

Mr. Merrick testified that respondent paid him 15% of his attorney’s fees for bringing clients to him and for working those clients’ files. However, Mr. Merrick had no documents or records to support his assertion, and there was no other evidence to support this claim, circumstantial or otherwise. Mr. Merrick testified that the check payable to D.L.J.S.C. was somehow evidence of payment to him through a front company. However, respondent testified that D.L.J.S.C. was a clearing house for investment accounts, and the funds for the check were his attorney’s fees, which he was moving from his client trust account to an investment account.

In his sworn statement, respondent initially stated that he did not recall whether he had a written employment agreement with Mr. Merrick for the services Mr. Merrick performed. However, respondent later acknowledged the agreement when it was presented to him. Respondent also denied purchasing a BMW for Mr. Merrick while Mr. Merrick testified that respondent did purchase a BMW for him.

Based on the above findings, the committee determined that respondent violated Rule 1.8(a) because there was no evidence that the loans from Mr. Merrick to respondent were documented or that the required informed consent, in a writing signed by the client, was ever given. The committee also determined that respondent failed to strictly comply with the requirements of Rule 1.8(e) in providing financial assistance to Mr. Merrick for undocumented living expenses. However, the [fiCommittee found the remaining charges were not proven by clear and convincing evidence, including the allegations relating to commingling and conversion of client funds, runner-based solicitation, and making false and misleading statements to the ODC.

Finding that respondent’s conduct did not harm Mr. Merrick, the committee recommended that respondent be publicly reprimanded. The committee also recommended that respondent complete the Louisiana State Bar Association’s Ethics School.

Respondent filed an objection to the hearing committee’s report. Specifically, respondent objected to the committee’s finding that he violated Rule 1.8(e) in advancing living expenses to Mr. Merrick, on the ground that the committee relied upon the current version of the rule, which did not go into effect until April 1, 2006, after the time of his alleged misconduct. Respondent argued that the controlling rule of law at the time of his alleged misconduct was that set forth in Louisiana State Bar Ass’n v. Edwins, 329 So.2d 437 (La. 1976), which he claimed did not require written documentation of the client’s living expenses prior to the advancement of living expenses by the attorney.

Disciplinary Board Recommendation

After review, the disciplinary board agreed with respondent that the hearing committee applied the incorrect version of Rule 1.8(e), as it cited the 2006 version. The prior version of Rule 1.8(e) appeared to prohibit advancing living expenses to a client, but during the relevant time the court’s actual standard was expressed in the 1976 Edwins decision. More recently, Edwins was summarized in Chittenden v. State Farm Mutual Automobile Ins. Co., 00-0414 (La.5/15/01), 788 So.2d 1140:

|7In Edwins, a disciplinary proceeding against an attorney, we addressed, inter alia, the propriety of an attorney advancing funds to his client in violation of Disciplinary Rule 5-103(B). With Justice Tate writing for the majority in Edwins, we concluded that while a part of the advanced expenses were seemingly prohibited by the disciplinary rules, we were “unwilling to hold that the spirit or the intent of the disciplinary rule is violated by the advance or guarantee by a lawyer to a client (who has already retained him) of minimal living expenses, of minor sums necessary to prevent foreclosures, or of necessary medical treatment.” Edwins, 329 So.2d at 445. Thus, this Court set the policy that attorneys were permitted to advance funds to their clients for minimal, necessary living expenses and that clients would be responsible for reimbursing these funds. The theory behind the policy was that this Court did not want to force impoverished individuals into early settlements because they were unable to wait out the delays of litigation that are necessary to enforce a cause of action. Id. at 446. [Emphasis added; internal footnotes omitted.]

The board found that under this standard enunciated in Edwins, respondent committed misconduct on numerous occasions by advancing living expenses to Mr. Merrick without communicating to Mr. Merrick that he would be required to reimburse those funds. The record contains evidence that respondent gave Mr. Merrick significant sums of money without clearly distinguishing which portions were advances on litigation as opposed to monies advanced under Mr. Merrick’s work agreement with respondent. Moreover, respondent gave Mr. Merrick these funds without clearly establishing his obligation to repay them from any recovery in Mr. Merrick’s personal injury suit. To the contrary, the record contains unrefuted testimony that Mr. Merrick understood these sums to be simply part of his compensation as a contract worker for respondent. Accordingly, the board made an express finding that respondent failed to properly disclose, describe, and otherwise impose the conditions of repayment upon the numerous sums he now claims were litigation “advances” for living expenses.

Is As to the other misconduct alleged in the formal charges, the board found that respondent violated Rule 1.8(a) in that he borrowed a total of $30,500 from Mr. Merrick but did not commit the loan agreements to writing. The board also determined that respondent violated Rule 1.15(a) by failing to keep law firm funds separate from client funds, the latter of which must be kept in a client trust account. Respondent commingled at least $30,000 of his own money with client funds in his client trust account, and he is presumed to have converted client funds when he wrote a check from his trust account payable to Peake BMW in the amount of $792 for repairs to Mr. Merrick’s car and wrote another check payable to Mr. Merrick as a “loan” in the amount of $2,000. Respondent could offer no explanation why he was drawing these funds from his trust account.

Based on these findings, the board determined that respondent violated duties owed to his client and the legal profession. He acted knowingly and intentionally, causing serious potential harm. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found prior disciplinary offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1980). The board found no mitigating factors present.

Turning to the court’s prior cases considering similar misconduct, the board noted that in In re: Schambach, 98-2432 (La.1/29/99), 726 So.2d 892, the lawyer was suspended from the practice of law for three years for borrowing a total of $40,000 from his client, with whom he was also having a sexual relationship. In In re: Heisler, 06-1202 (La.l 1/3/06), 941 So.2d 20, the court imposed a fully deferred one-year suspension upon a lawyer who, among other misconduct, loaned $1,000 to | nhis client while holding her jewelry as collateral. Considering these cases, the board concluded:

Here, Mr. Fenasci made improper loans of $30,500.00 from a client, he made extensive and improper monetary “advances” spanning several years to the same client, he also commingled $30,000.00 of his own funds with client funds, and he presumably converted $792.00 and $2,000.00 in funds drawn from his client trust account. This pervasive misconduct calls for a suspension at the upward range of the cases cited, i.e. a three year suspension.
Given the aggravating factors discussed earlier, and the lack of any mitigating factor, the Board finds no reason to deviate downwards in our Recommendation. In our view, the aggravating circumstances serve to underscore that three years is the appropriate duration.

Based on this reasoning, the board recommended that respondent be suspended from the practice of law for three years.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Par-due, 93-2865 (La.3/11/94), 633 So.2d 150.

| Ulln this matter, the record supports the hearing committee’s factual findings as modified by the disciplinary board. In summary, respondent improperly obtained a loan from Mr. Merrick, improperly advanced living expenses to Mr. Merrick, commingled client funds with his own funds, and converted client funds to his own use. Respondent’s conduct violated Rules 1.8(a) and 1.15(a) of the Rules of Professional Conduct. We also agree with the board’s determination that respondent violated the standards for providing financial assistance to a client as set forth in Louisiana State Bar Ass’n v. Edwins, 329 So.2d 437 (La.1976), specifically that the client remain liable for repayment of all funds, whatever the outcome of the litigation. With respect to the allegation that respondent engaged in runner-based solicitation in violation of Rules 7.2(a) and 7.3(a), in light of the committee’s finding that Mr. Merrick lacks credibility and the ODC’s failure to introduce any evidence corroborating Mr. Merrick’s testimony, we find there is no evidence in the record to support a finding that respondent violated these rules.

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

Respondent knowingly, if not intentionally, violated duties owed to Mr. Merrick and the legal profession. Although the record does not indicate that 11 respondent caused any actual harm, the potential for serious harm existed. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for this type of misconduct is a period of suspension.

The record supports the aggravating factors found by the disciplinary board. In addition, respondent acted noth a dishonest or selfish motive. There are no mitigating factors present.

Considering all the circumstances, we find that the three-year suspension recommended by the disciplinary board is an appropriate sanction for respondent’s misconduct. Accordingly, we will adopt the board’s recommendation.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Michael A. Fen-asci, Louisiana Bar Roll number 5508, be and he hereby is suspended from the practice of law for a period of three years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

ON APPLICATION FOR REHEARING

PER CURIAM.

Rehearing is granted solely for the purpose of considering the brief on the merits filed by respondent, Michael A. Fenasci. Having considered the brief, we reaffirm our judgment of November 20, 2009 in its entirety.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . One of those alleged clients was Ulysses James Wilson. The ODC subpoenaed Mr. Wilson to testify at the formal hearing in this matter to corroborate Mr. Merrick’s claim that he acted as a runner for respondent. However, following Mr. Merrick's testimony, the ODC released Mr. Wilson from his subpoena without calling him to testify.

      . In January 1998, Mr. Merrick had borrowed $792 from respondent’s law firm to pay for repairs to his automobile, and in February 1999, Mr. Merrick borrowed $2,000 from respondent’s law firm.

      . In 1995, the disciplinary board publicly reprimanded respondent for failing to comply with a subpoena to appear before the ODC in connection with a disciplinary complaint against him.


text:
    In re Deborah Harkins BAER.
    No. 2009-B-1795.
    Supreme Court of Louisiana.
    Nov. 20, 2009.
   | ¶ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Deborah Harkins Baer, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Baer, 07-0861 (La.5/2/07), 955 So.2d 148.

FORMAL CHARGES

Count I

On February 15, 2007, respondent, then an employee of the Attorney General’s Office, was involved in a minor car accident in the office parking lot. In connection with that incident, respondent was arrested by the State Police and charged with driving under the influence of alcohol.

One week later, respondent self-reported her arrest to the ODC, indicating that she would be checking herself into a 30-day inpatient recovery program in Texas and that she would return to her employment with the Attorney General’s Office upon her release. Respondent was instructed to contact the ODC at that time and make arrangements to consult with Bill Leary, the Executive Director of the Lawyers Assistance Program (LAP).

12After being discharged from the treatment facility in Texas, respondent did contact Mr. Leary, who recommended that she execute a LAP agreement to begin her recovery program. Respondent executed a LAP contract on June 21, 2007, by which time she had relocated to Texas. She is currently being monitored by the Lawyers Assistance Program in Texas.

Count II

At approximately 11:45 a.m. on April 10, 2007, respondent was involved in an accident in the Belle of Baton Rouge Casino parking lot. According to the police report, respondent was administered a Breathalyzer test, which showed that her blood alcohol level was .323%, reported to be “more than four times the legal limit to be driving a vehicle.” Respondent was arrested and charged with DWI and driving with a suspended driver’s license.

DISCIPLINARY PROCEEDINGS

In December 2007, the ODC filed two counts of formal charges against respondent, alleging that her conduct as set forth above violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

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

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that the factual allegations of the formal charges have been proven by clear and convincing evidence. The committee noted that respondent’s history reveals a serious addiction to alcohol, and that she has been involved in at least two accidents with property damage while driving under the influence. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent’s actions were knowing and that she violated duties owed to the profession. Respondent caused tangible harm in the form of property damage; however, the committee felt the more serious harm results when members of the legal profession engage in criminal acts, which give rise to a lack of confidence by members of the public in those who are officers of the court.

In aggravation, the committee found a pattern of misconduct and substantial experience in the practice of law (admitted 1992). The mitigating factors found by the committee are the following: absence of a prior disciplinary record, absence of a dishonest or selfish motive, and mental disability or chemical dependency, including alcoholism or drug abuse.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day, retroactive to the date of her interim suspension.

| ¿Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

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

Based on these findings, the board determined that respondent knowingly violated duties owed to the public and to the profession. She caused not only physical damage to property, but her actions also gave rise to a lack of confidence in members of the profession by the public. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

The board found the following aggravating factors present: a pattern of misconduct and substantial experience in the practice of law. The board determined that the mitigating factors present are: absence of a prior disciplinary record, absence of a dishonest or selfish motive, and mental disability or chemical dependency, including alcoholism or drug abuse.

The board acknowledged that both actual and deferred periods of suspension have been imposed in cases involving attorneys who drive under the influence of alcohol. However, in this case, respondent caused property damage in both instances in which she was cited with DWI. More telling, she committed the second violation within sixty days of the first, and after being released from a treatment program in | r,Texas. She was placed on interim suspension more than one year ago and has not expressed any interest in returning to the practice of law since that time. She has also failed to comply with her Texas LAP contract and has tested positive for alcohol use while under monitoring of that program.

Under these circumstances, the board found that the one year and one day suspension (applied retroactively to the date of respondent’s interim suspension) recommended by the hearing committee is appropriate, and so recommended to this court. A suspension of more than one year will require respondent to go through a reinstatement hearing and demonstrate that she meets the requirements of Rule XIX, § 24(E) should she want to return to the practice of law in the future.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

The deemed admitted facts in this matter indicate that respondent was twice arrested and charged with driving under the influence of alcohol. These facts support a finding that respondent violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct.

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

We have imposed sanctions ranging from actual periods of suspension to fully deferred suspensions in prior cases involving attorneys who drive while under the influence of alcohol. However, as a general rule, we tend to impose an actual suspension in those instances in which multiple DWI offenses are at issue, as well as in cases in which the DWI stems from a substance abuse problem that appears to remain unresolved. Both of these concerns are implicated in the instant case. Therefore, we find it is appropriate to impose a one year and one day suspension, with no portion of the suspension deferred. Should respondent wish to resume the practice of law in the future, she will be required to go through the reinstatement process set forth in Supreme Court Rule XIX, § 24 and demonstrate to our satisfaction that she is healthy enough to resume the representation of her clients in a competent fashion.

| 7becree

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Deborah Harkins Baer, Louisiana Bar Roll number 21458, be and she hereby is suspended from the practice of law for one year and one day, retroactive to her May 2, 2007 interim suspension. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, J., dissents.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . Unfortunately, on December 19, 2007, Mr. Leaiy notified the ODC that respondent "has not complied with the contract and had one positive screen."

      . Respondent’s driver’s license was under suspension from her prior DWI in February 2007.

      . See, e.g., In re: Deshotels, 98-1349 (La. 10/9/98), 719 So.2d 402 (attorney suspended for six months, with all but sixty days deferred, based on two DWI convictions and failing to properly terminate the representation of a client); In re: Lafont, 04-2064 (La.4/1/05), 898 So.2d 339 (attorney suspended for ninety days based on his DWI conviction and failing to communicate with a client); In re: Tallón, 08-0179 (La.2/22/08), 974 So.2d 1290 (attorney who was convicted of DWI was suspended by consent for one year and one day, fully deferred, subject to a five-year period of probation with conditions); In re: Alexander, 08-0462 (La.6/27/08), 984 So.2d 702 (attorney who was convicted of DWI on three occasions and whose probation was revoked for his failure to attend a court-ordered substance abuse program was suspended from the practice of law for one year and one day); In re: Reynolds, 09-0216 (La.3/4/09), 3 So.3d 457 (attorney who was convicted of third-offense DWI, and who failed to report his two previous convictions to the ODC, was suspended by consent for one year and one day).