text:
    Anthony TULO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-870.
    District Court of Appeal of Florida, Second District.
    April 9, 2010.
    Jackson Stuart Flyte, Regional Counsel, Second District, Bartow; and Ngozi C. Acholonu, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Clearwater, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Anthony Tulo seeks a writ of prohibition from this court compelling the trial court to discharge him in circuit court case number CRC 06-07214 CFANO. We must grant the writ because, after the jury was sworn and over Mr. Tub’s objection, the trial court declared a mistrial without engaging in any consideration of the possible alternatives to mistrial and, thus, without determining that a mistrial was a manifest necessity. See Thomason v. State, 620 So.2d 1234, 1239 (Fla.1993); Johnson v. State, 685 So.2d 1369, 1370 (Fla. 2d DCA 1996).

Mr. Tulo demanded speedy trial in this case, and trial commenced on the morning of Wednesday, January 6, 2010. The jury was selected and sworn that morning. In the afternoon, the trial court declared a recess because the assistant state attorney’s father had a medical emergency. Unfortunately, his father died that night.

The following morning, without any motion from the State, the trial court announced that the assistant state attorney was not available to finish trying the case and “so I’m kind of confronted with a situation where I’ll have to declare a mistrial and set it for another trial.” The defendant immediately objected to a mistrial. The trial court noted the objection and declared a mistrial without conducting any additional discussion of possible alternatives and without determining that a mistrial was a manifest necessity.

The Third District in Douglas v. State, 28 So.3d 931, 933 (Fla. 3d DCA 2010), recently stated the law governing this issue in succinct fashion:

A criminal defendant has the right to be free from being twice put in jeopardy for the same offense under both the Fifth Amendment to the United States Constitution and article I, section 9, of the Florida Constitution. Jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). The defendant has a right to have his trial completed by a particular jury of his choosing. Thomason v. State, 620 So.2d 1234 (Fla.1993). “Doubt about whether the mistrial is appropriate is resolved ⅛ favor of the liberty of the citizen.’ The State must demonstrate ‘manifest necessity’ for the mistrial.” Id. at 1237. “[A] mistrial founded solely upon the convenience of the court and the jury is certainly not manifestly necessary.” Cohens v. Elwell, 600 So.2d 1224, 1226 (Fla. 1st DCA 1992) (quoting New York v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 394 N.E.2d 1134 (1979)).

Because the defendant’s constitutional rights are at stake, the case law places the burden on the State to establish that a mistrial over the defendant’s objection was based on manifest necessity. When the trial court does not evaluate and discuss the available alternatives before declaring the mistrial, the State has a very difficult task in a prohibition proceeding. See Luther v. State, 661 So.2d 906, 907 (Fla. 2d DCA 1995). In this case, for example, no one can know whether another assistant state attorney could have been prepared to try the remainder of this case if the trial had been continued until Monday, January 11, 2010. We cannot know whether it was a reasonable possibility to continue the case for a period of time until the assigned assistant state attorney returned to his duties. Without an inquiry, we cannot know whether the jury and the witnesses could have accommodated a change in the schedule of the trial. In the absence of such information, we are compelled to grant the petition and order the trial court to discharge Mr. Tulo in circuit court case number CRC 06-07214 CFA-NO.

The petition for writ of prohibition is granted.

WALLACE and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Martha GARDNER, Appellant, v. Anthony NIOSO, M.D.; Baptist Primary Care, Inc.; Gordon Polley, M.D.; North Florida Surgeons, P.A.; and Jacksonville Neurological Clinic, P.A., Appellees.
    No. 1D09-4767.
    District Court of Appeal of Florida, First District.
    April 9, 2010.

      Rodney S. Margol of Margol & Pennington, P.A., Jacksonville; William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, for Appellant.
    Kelly B. Mathis and Laurie M. Lee of Mathis & Muiphy, P.A., Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED. Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003).

KAHN, DAVIS, and THOMAS, JJ., concur.


text:
    Bobby DEESE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1136.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Bobby Deese challenges his revocation of probation arguing that the record does not support the finding that his violation of a condition of probation was willful. Because it is unclear from the trial court’s findings whether it understood the test to be employed, we are remanding to the trial court for clarification.

After pleading guilty to lewd and lascivious conduct, appellant was placed on sex offender probation. One of the conditions of that probation was that appellant was not to commit a new criminal offense. An affidavit charging that appellant violated probation was thereafter entered in which it was averred that appellant failed to complete sex offender treatment, failed to submit to a polygraph, and failed to remain under GPS monitoring, a claim which was later dropped. At the revocation hearing, appellant’s probation officer testified, without objection, that appellant committed a new violation of law by not reregistering as a sex offender with local law enforcement as required by section 943.0435, Florida Statutes.

It was established at the hearing that appellant was discharged from sex offender therapy because he did not take a polygraph within the period prescribed. It was further established at the hearing that appellant had a heart attack and was fitted with a pacemaker. He was required to reregister in November 2008, but he did not do so until he was reminded by a deputy in January 2009. At the revocation hearing, appellant claimed his heart attack contributed to his failure to register.

At the conclusion of the hearing, the trial court explained that it could not find a violation for the failure to take a polygraph and the resulting discharge from therapy because it was not established that appellant had the financial ability to pay for such. As for the new violation of law, the trial court explained:

[With regard to the] violation of Condition 5, a new law violation, it’s been proven today, not only by a preponderance of the evidence, by, beyond a reasonable doubt, that he violated the section of the Florida Statutes requiring him to register as required. It is a strict liability offense and he violated Florida Statute 943.0435 in that he failed to register in a timely basis....
I didn’t make these laws. I’m just elected to enforce them. The registration laws are onerous. They do require sex offenders to register several times and to keep up with the law. And Mr. Deese, even though this Court and everyone tried to help him with this situation with the telephone, didn’t go register when he was supposed to, and that’s a violation of the law and there’s nothing I can do about it. We don’t ask a lot of our probationers. All we ask for them to do is to basically not violate the law, and he did. And Mr. Redmon [the state attorney] is right in that T forgot’ does not apply to these kind of charges. It just does not apply. So, I’m going to find that he did willfully violate Condition 5 with the new law violations, by failing to register as required. Therefore, I find that he did violate his probation.
⅜ * ⅜
But the law says, it’s basically strict liability, you know, unless there’s something preventing you from registering, that if you don’t register, it’s a crime so ... I just, I just don’t have any choice at this point. And I’m going to go with the very minimum on the guidelines; that’s the least I can do. If I go any lower, the State can appeal me and it would be reversed and come back, because they look at these. So, what I’m going to do is revoke, adjudicate you guilty, I’m going to give you 87.9 months DOC. That’s the lowest permissible sentence in the sentencing guidelines.

A revocation of probation is reviewed under the abuse of discretion standard. Michael v. State, 992 So.2d 367 (Fla. 1st DCA 2008). “To establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996)(citing Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995)); Michael. Here, the trial court appears to have believed that it was required to find the violation of probation was willful simply by the fact that appellant failed to reregister. While there may not be a defense for failure to reregister, the trial court was still obliged to find pursuant to section 943.0435 appellant’s violation of the condition of probation that he not commit a new violation of law was a willful violation. As was the case in Grumet v. State, 771 So.2d 39 (Fla. 4th DCA 2000), we remand the cause back to the trial court for it to determine whether the violation was willful.

REVERSED and REMANDED.

WOLF, VAN NORTWICK, and ROBERTS, JJ., concur.


author: WOLF, J.

text:
    OFFICE OF INSURANCE REGULATION, Appellant, v. LIFE INSURANCE SETTLEMENT ASSOCIATION, Appellee.
    No. 1D09-2654.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    S. Marc Herskovitz, Tallahassee, for Appellant.
    Brady J. Cobb and Stephanie Alexander of Tripp Scott, P.A., Ft. Lauderdale, for Appellee.
   WOLF, J.

Appellant, the Office of Insurance Regulation (Office), challenges an administrative order finding portions of a proposed rale regulating viatical settlements were invalid. We affirm as to all issues except one. The administrative law judge erred in finding a portion of the proposed rale which requires viatical settlement providers to document changes to the provider’s method of operation in an annual report was invalid.

Appellee, Life Insurance Settlement Association, challenged portions of an annual report to be filed by viatical settlement providers which was incorporated by reference in proposed rule 690-204.030(l)(a). This opinion addresses Interrogatory l.d., contained in the annual report. This interrogatory required viatical settlement providers to answer, “[sjinee the latter of the date of application or the last annual report filed with the Office has there been any change in the Provider’s: ... d. Method of operation as described in its most recent plan of operations filed with the Office.” If answered “yes,” the interrogatory required supporting documentation be attached.

The specific authority cited for the proposed rule was section 626.9925, Florida Statutes, which states the Financial Services Commission, of which the Office is a part, “may adopt rules to administer this act, including ... rules providing for the collection of data....”

Several statutes were cited as laws implemented by the proposed rule, including section 626.9913(2), which requires viatical settlement providers to file an annual report “containing information the commission requires.... ” Also cited as a law implemented was section 626.9912(3)(b)-(c), which requires that in an application for licensure as a viatical settlement provider, a provider must submit:

(b) A copy of the applicant’s basic organizational documents, if any, including the articles of incorporation, articles of association, partnership agreement, trust agreement, or other similar documents, together with all amendments to such documents.
(c) Copies of all bylaws, rules, regulations, or similar documents regulating the conduct of the applicant’s internal affairs.

Section 626.9912(5) provides upon the filing of an application, “the office shall investigate each applicant and may issue the applicant a license if the office finds that the applicant: (a) Has provided a detailed plan of operation.”

The ALJ found Interrogatory l.d. enlarged the specific provisions of law implemented as contemplated by section 120.52(8)(c). The ALJ determined although section 626.9912(3) gave the Office the authority to require certain information from applicants, this authority did not extend to permit the Office to seek this information from licensees filing annual reports.

Clearly the organizational information required in an application under section 626.9912(3), which is characterized as a “plan of operation” in section 626.9912(5), is the same information to which Interrogatory l.d. refers as the “[m]ethod of operation as described in its most recent plan of operations filed with the Office.”

To read section 626.9912(3) in this limited manner, as giving the Office only the authority to require this information from applicants, would essentially render this section meaningless. Nothing would prevent a viatical settlement provider from filing an application and then immediately changing its method of operation, making the information in the application obsolete. Once the Legislature determined it was important for the Office to have information concerning settlement providers’ method of operation, it necessarily contemplated that the Office would be apprised of any substantial change. Therefore, because the Office has the authority to receive information concerning a viatical settlement provider’s method of operation pursuant to section 626.9912(3), the proposed rule did not enlarge the specific provision of law implemented by requiring updates when this information changes.

For the foregoing reasons, we reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.

WEBSTER and THOMAS, JJ., concur.


text:
    Desislava Zhivkova Dimitrova CHILDS, Appellant, v. Samuel CHILDS, Appellee.
    No. 1D09-3385.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    Petia D. Knowles, Ph.D., Esq., Miami, for Appellant.
    Joseph M. Scheyd, Jr., Esq., Destín, for Appellee.
   PER CURIAM.

Desislava Zhivkova Dimitrova Childs, the wife, appeals a final order which denies her motion styled “Second Motion for Order to Show Cause for Indirect Criminal Contempt/Enforcement.” The wife argues the trial court erred in conducting the proceedings as though a finding of civil contempt were sought. Because the wife did not object to the course of the proceedings in which she, through counsel, actively participated and because the wife’s second motion included in its prayer for relief fines, incarceration and/or other remedies pursuant to a finding of civil contempt, the wife has waived any complaint to the propriety of the proceedings below and any error was invited. See Goodwin v. State, 751 So.2d 537 (Fla.1999); Bryan v. Bryan, 930 So.2d 693 (Fla. 3d DCA 2006); Rokicki v. Rokicki, 660 So.2d 362 (Fla. 3d DCA 1995). Appellant’s remaining arguments are without merit.

AFFIRMED.

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


text:
    Jennifer L. BROWN, Appellant, v. Jerry Lynn HOLMES, Appellee.
    Nos. 1D09-3718, 1D09-5058.
    District Court of Appeal of Florida, First District.
    April 9, 2010.

      Kristin Adamson, Tallahassee, for Appellant.
    Patricia B. Fournier and Christopher B. Norris of Bajoczky & Fournier, Tallahassee, for Appellee.
   PER CURIAM.

Jennifer L. Brown brings a consolidated appeal of two post-dissolution orders entered by the trial court. We affirm the Stipulated Order on Attorney Fees without further discussion. We affirm the trial court’s interpretation of the debt provisions of the marital settlement agreement except for the court’s failure to give the former wife credit for the debts totaling the amount of $8,307.62 which she was assigned to pay. It is undisputed that either these debts have been satisfied or the former wife is still solely obligated to pay the debts. In either event, she should have received appropriate credit. Finally, we reverse the trial court’s modification of child support. No pleading was filed seeking that relief and the former wife was not given appropriate notice or an opportunity to defend the reduction of child support. Newberry v. Newberry, 831 So.2d 749 (Fla. 5th DCA 2002); Sohacki v. Sohacki, 657 So.2d 41 (Fla. 1st DCA 1995). The mere mention of child support in a proceeding-does not authorize the trial court to modify child support without notice nor does that mere mention constitute the implied consent to try the issue. Newberry, 831 So.2d at 751.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

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


text:
    Kimberly K. BEIER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Orea Seafood, Inc., Appellees.
    No. 1D10-0367.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    Kimberly K. Beier, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, and M. Elaine Howard, Assistant General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Because the notice of appeal was not filed within 30 days of rendition of the final order as required by Florida Rule of Appellate Procedure 9.110(c), this appeal is hereby dismissed. See First Nat’l Bank in Ft. Myers v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208 (Fla. 1st DCA 1984) (stating that appellant’s failure to file the notice of appeal within the requisite 30-day period is “an irremediable jurisdictional defect”).

WOLF, LEWIS, and MARSTILLER, JJ., concur.


text:
    Irene CANGELOSI, Appellant, v. PICADILLY CAFETERIA and Broadspire, Appellees.
    No. 1D09-5152.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    R. Cory Schnepper of Levine, Busch & Schnepper, P.A., Miami, for Appellant.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant seeks review of an order of the Judge of Compensation Claims (JCC) finding that Claimant presented no medical evidence proving that the compensable injuries are the major contributing cause of the injuries for which Claimant seeks compensation. Claimant argues, in part, that the JCC erred in applying the concept of “major contributing cause” to her request for benefits. On that point, we agree. That concept is inapplicable here, because Claimant was injured on November 24, 1990, and the Legislature did not implement that higher standard of proof until January 1, 1994. See Ch. 93-415, § 2, Laws of Fla. (amending section 440.02(32), Fla. Stat.). The applicable standard of proof is the less-stringent “causal connection” standard. See Mangold v. Rainforest Golf Sports Ctr., 675 So.2d 639, 641 (Fla. 1st DCA 1996). The JCC’s finding that Claimant failed to meet the stricter standard does not address whether Claimant met the lesser standard so as to prove entitlement to benefits.

REVERSED and REMANDED for additional findings.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Eugene J. MANNING, Jr., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Jennings Development Group, Inc., Appellees.
    No. 1D10-0215.
    District Court of Appeal of Florida, First District.
    April 9, 2010.

      Eugene J. Manning, Jr., pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Because the notice of appeal was not filed within 30 days of rendition of the final order as required by Florida Rule of Appellate Procedure 9.110(c), this appeal is hereby dismissed. See First Nat’l Bank in Ft. Myers v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208 (Fla. 1st DCA 1984) (stating that appellant’s failure to file the notice of appeal within the requisite 30-day period is “an irremediable jurisdictional defect”).

WOLF, LEWIS, and MARSTILLER, JJ., concur.


text:
    Patrick Jon LACKEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3630.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2010.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Patrick Jon Lackey was sentenced for both possession of more than twenty grams of cannabis and possession with intent to sell or deliver based on the same cannabis. The State concedes, and we agree, that sentencing for both offenses violated Lackey’s double jeopardy rights. Pettway v. State, 956 So.2d 541, 541 (Fla. 4th DCA 2007); Sims v. State, 793 So.2d 1153 (Fla. 4th DCA 2001). A person “may not be convicted twice for possession of the same cannabis.” Pettway, 956 So.2d at 541.

We reverse and remand with directions to strike Lackey’s conviction and sentence for the lesser included offense of possession of more than twenty grams of cannabis.

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


author: BENTON, J. WOLF, J.,

text:
    Terone Waleed CORKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3420.
    District Court of Appeal of Florida, First District.
    April 12, 2010.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Terone Waleed Corker appeals an order revoking his probation and the sentence he received after the trial court found that he had violated the terms of his probation by possessing marijuana. Because the evidence of a violation was insufficient to support revocation of probation, we reverse.

The state filed an affidavit alleging that Mr. Corker violated condition (4) of his probation by “failing to live and remain at liberty without violating any law by committing the criminal offense of Possession of Marijuana”; condition (12) of his probation by “failing to pay the State of Florida the amount of $40.00 per month toward cost of supervision, plus a 4% surcharge”; and condition (12) of his probation by “failing to make court costs payments to the probation officer as directed in accordance with the payment instructions of the court....” The trial judge ruled that, while the state had failed to prove the alleged violations of condition (12), the state did prove possession of marijuana as alleged.

Summing up at the close of the probation revocation hearing, the prosecution argued that “when you’re on probation it is not acceptable” to have “weed in the car.” The prosecutor maintained the state had proven Mr. Corker guilty of possession of marijuana by proving that he took a “chance” in allowing a woman to ride as a passenger in the back seat of his car when “[h]e knew what was up with that girl.” A policeman testified at the revocation hearing that the police found marijuana in a multicolored makeup pouch concealed in the back seat of the car near where the female passenger in question was sitting. The trial court made a finding that Mr. Corker, who was in the front seat and had been driving the vehicle that was searched, knew the marijuana was in the car, revoked probation, and pronounced sentence.

We review orders revoking probation for abuse of discretion. Cases on direct appeal from convictions discussing what evidence is sufficient to prove constructive possession of narcotics involve a reasonable doubt standard more exacting than the preponderance of the evidence standard involved on review of revocations of probation. “Proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking community control.” Robinson v. State, 609 So.2d 89, 90 (Fla. 1st DCA 1992). Compare Lopez v. State, 711 So.2d 563 (Fla. 2d DCA 1997) (holding that evidence of drugs found in the defendant’s and his wife’s jointly occupied closet was insufficient to prove constructive possession beyond a reasonable doubt) with Ubiles v. State, 23 So.3d 1288, 1291 (Fla. 4th DCA 2010) (holding evidence was sufficient under the preponderance standard because “it can ... be inferred that [the probationer] had dominion and control of the marijuana cigarettes in the ashtray” within his reach even though another individual also had access). “To establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996) (citing Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995)). Possession of marijuana clearly violates a substantial condition.

“The law governing criminal liability for constructive possession is relevant in determining the sufficiency of the evidence to warrant revocation of probation based on a criminal act.” Rita v. State, 470 So.2d 80, 85-86 (Fla. 1st DCA 1985). “Proof of constructive possession is established when a defendant does not have physical possession of contraband but (1) knows it is within his presence, (2) has the ability to maintain control over it, and (3) knows of the illicit nature of the contraband.” Hill v. State, 873 So.2d 491, 493 (Fla. 1st DCA 2004). In a probation revocation case not unlike this one, the Fourth District analyzed the evidence:

As the marijuana was not found on appellant’s person, this case is one of constructive possession. In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same. See Snell v. State, 939 So.2d 1175, 1179 & 1179 n. 1 (Fla. 4th DCA 2006). “When a vehicle is jointly occupied, a defendant’s ‘[mjere proximity to contraband is insufficient to establish constructive possession.’ ” Hargrove v. State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006) (quoting Skelton v. State, 609 So.2d 716, 717 (Fla. 2d DCA 1992)). “Knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband.” Id.
In the instant case, the State met its burden with respect to the knowledge element of the offense. The officers testified that appellant was in the driver’s seat of the truck and the marijuana was in a compartment in the dash in plain view. The fact that the drugs were openly within appellant’s line of sight is evidence from which appellant’s knowledge of the presence of the marijuana may be inferred. See Brown v. State, 428 So.2d 250, 252 (Fla.1983) (finding fact that drugs were in open view provided evidence of knowledge of the same).
This, then, brings us to the matter of dominion and control. Knowledge of the presence of the drugs and the ability to exercise dominion and control over the drugs are not the same thing. See Jean v. State, 638 So.2d 995, 996 (Fla. 4th DCA 1994) (recognizing that knowledge and dominion and control are separate elements and stating that “ [i]t is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it”). In the case law, the concepts of “dominion” and “control” involve more than the mere ability of the defendant to reach out and touch the item of contraband.

Martoral v. State, 946 So.2d 1240, 1242-43 (Fla. 4th DCA 2007). In the probation revocation context, too, “[i]f contraband is found in a place that is in joint, rather than exclusive, possession of a defendant, the defendant’s knowledge of the contraband’s presence and the ability to control it cannot be inferred from the defendant’s proximity to the contraband, but must be established by independent proof,” Hill, 873 So.2d at 493, albeit only by a preponderance.

In the present case, while the evidence was sufficient to prove actual possession by the passenger in the back seat, there was no evidence that would support a finding that Mr. Corker was himself simultaneously in constructive possession of the same marijuana. An officer did testify at the revocation hearing that Mr. Corker said, “I know she did this stuff. I shouldn’t have let her in my truck.” Even if this was sufficient proof of actual knowledge that marijuana was present in the vehicle, it was insufficient to prove that appellant had the ability to maintain dominion and control of the marijuana at any time. There was no proof that Mr. Corker saw the marijuana before the police search or that it was ever within his reach. The state failed to carry its burden to prove constructive possession at the revocation hearing by a preponderance of the evidence. See Player v. State, 949 So.2d 306, 307 (Fla. 1st DCA 2007); Martoral, 946 So.2d at 1243-44.

Reversed and remanded.

PADOVANO, J., concurs; WOLF, J., concurs with opinion.

WOLF, J.,

Concurring.

I concur with the result but note had the State charged appellant with violations based on either condition 5 (you will not associate with any person engaged in criminal activity) or condition 6 ([n]or will you visit places where ... drugs ... are unlawfully ... used) of his order of probation, the result in this case may have been different.

      . The court ruled that condition (12) was "not a basis” to find a violation of probation because Appellant "had more time” to pay the required fees and costs. For reasons that arc unclear, the written revocation order did find violations of condition (12) but the state does not rely on these violations on appeal and acknowledges that they appear to be scrivener's errors.

      . One witness testified he knew the marijuana belonged to the female passenger.


author: KAHN, J.

text:
    Jonathan CLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5732.
    District Court of Appeal of Florida, First District.
    April 13, 2010.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Jonathan Clowers appeals his conviction and life sentence for first-degree murder and alleges error on four points: (1) the failure to appoint two experts to evaluate his competency to stand trial; (2) the denial of a motion for judgment of acquittal on the issue of premeditation; (3) improper prosecutorial comment; and (4) the imposition of a minimum mandatory term of life in prison.

PROCEDURAL & FACTUAL BACKGROUND

The events from which this case arose took place in Jacksonville on October 23, 2005, where Clowers was scheduled to drop off his one-year-old son with the baby’s mother, Tiffany Satchel. That afternoon Ms. Satchel drove with her aunt, Alicia Harris, to an apartment belonging to appellant’s brother. Clowers drove from Fort Lauderdale with a friend, Melvin Coleman, to meet them.

Around 8:00 p.m. Ms. Satchel arrived at the apartment to find Clowers already there. Clowers handed the baby to Ms. Satchel, who moved to secure the child in her van. As she tried to enter the van, though, Clowers grabbed her arm and dragged her toward the center of the parking lot. Ms. Harris, who by this time had gotten out of the van, saw appellant had a gun. After some tense discussion or argument, appellant shot Ms. Satchel three times in the side of the head and threw her to the ground. Clowers then fired a final shot to the back of Ms. Satchel’s head. Appellant ran to his car and drove away with his friend, Coleman.

Coleman recalled that Ms. Satchel and Clowers were arguing in the moments before the shooting; he heard Ms. Satchel say, “Fuck that ... I am going to take your baby and move away.” After the shooting, on the car trip back to Fort Lauderdale, Clowers said to Coleman, “Didn’t I tell you I was going to kill her?”

The State formally charged Clowers with first-degree murder, accomplished by discharge of a firearm resulting in “death or great bodily harm,” in contravention of sections 782.04(l)(a) and 775.087(1) and (2), Floi'ida Statutes. In the months before trial, defense counsel filed successive suggestions of mental incompetence to proceed, see Florida Rule of Criminal Procedure 3.210(b), requesting expressly that the trial court appoint two or more psychiatrists to determine appellant’s mental competence. The court appointed only one expert, Dr. William Meadows, to evaluate appellant. Twice the trial court held hearings to determine appellant’s competency, and twice on the strength of Dr. Meadows’ evaluation found appellant competent to proceed. Clowers filed a third suggestion of mental incompetence, but this time requested only that appellant be examined by “one or more” court-appointed experts. The trial court held a third hearing and again found appellant mentally competent to proceed.

At trial, appellant moved unsuccessfully for judgment of acquittal, arguing the State failed to prove premeditation. In closing argument, defense counsel conceded that appellant had committed the lesser offense of manslaughter. In turn, the prosecutor responded:

[WJhat is the defense trying to argue here? That this is just some domestic situation.... It’s not a big deal. This lady is 27 years old, you know, she happens to get shot four times in the back of the head but it’s just manslaughter. That’s what they want you to believe.

The trial court overruled defense counsel’s objection to the foregoing remarks.

The jury found Clowers guilty as charged. The court sentenced Clowers to life in prison without parole, and, according to the written judgment and sentence, to a minimum mandatory term of life in prison pursuant to section 775.087, Florida Statutes. Appellant moved to correct the sentence, see Florida Rule Criminal Procedure 3.800(b), arguing the imposition of a minimum mandatory term of life is not authorized by section 775.087(2)(a)3. The trial court denied the motion.

ANALYSIS

We review the trial court’s interpretation of the Rules of Criminal Procedure de novo. See Jones v. State, 966 So.2d 319 (Fla.2007). If a trial court, upon motion of defense counsel, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court “shall order the defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of [a competency] hearing.” Fla. R.Crim. P. 3.210(b).

The State does not question the general rule that a trial judge errs where she fails to appoint at least two competency experts. See D’Oleo-Valdez v. State, 531 So.2d 1347, 1348 (Fla.1988) (holding there was “no doubt that the trial judge erred in failing to appoint at least two experts”). Similarly, appellant does not dispute that the failure to appoint at least two experts falls short of the level of fundamental error. See id. (holding that “failure to appoint a second expert to examine the defendant’s mental competency to stand trial is not fundamental error”). We find the issue unpreserved. Appellant cannot rely on the first two suggestions of mental incompetence to preserve this issue for appellate review. Not only did Clow-ers fail to object at any of the three competency hearings, he ultimately invited the trial court’s error, requesting appointment of just one mental health expert before the final proceeding. See Mairena v. State, 6 So.3d 80, 86 (Fla. 5th DCA 2009) (holding failure to appoint two experts not preserved for review where defense counsel invited error by requesting only one); Green v. State, 598 So.2d 313, 313-14 (Fla. 2d DCA 1992) (holding defendant acquiesced in appointment of single competency expert where, rather than object to appointment of only one, defense counsel informed trial judge counsel had report from single appointed expert indicating defendant was competent). Having acquiesced in or invited the error of which he now complains, appellant states no grounds for relief on this issue. Beyond mere non-preservation, appellant actually waived the point.

We review de novo a ruling on a motion for judgmental of acquittal. See Pagan v. State, 830 So.2d 792 (Fla.2002). Clowers contends on appeal that the State failed to refute the hypothesis that he killed Ms. Satchel in the heat of passion, pointing to the argument in which Ms. Satchel apparently threatened to move away with his child.

Premeditation — “a fully formed conscious purpose to kill” — “may be formed a moment before the act, but must also exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.” Bigham v. State, 995 So.2d 207, 212 (Fla.2008). The victim’s verbal provocation notwithstanding, appellant cannot gloss over the trappings of premeditation as are reflected in his conduct. With no hint of physical provocation, Clowers shot his victim repeatedly, and in the back of the head, the final shot coming as Ms. Satchel lay on the ground.

Also, Ms. Harris testified that appellant had to retrieve the gun from his car, and Coleman confirmed that Clowers said on the way home, “Didn’t I tell you I was going to kill her?” That Coleman did not attest to a similar proclamation made before the shooting does not preclude the inference that appellant had an opportunity to, and did in fact, form a conscious purpose to kill before doing so. Instead, his post facto statement affirmed his earlier intent. Viewing the evidence, as we must, in a light most favorable to the State, see Woods v. State, 733 So.2d 980, 985 (Fla.1999), we conclude that the record discloses sufficient evidence from which the jury could infer premeditated design to the exclusion of all reasonable hypotheses of innocence.

Control of a prosecutor’s comments falls within trial court discretion, the exercise of which we will not disturb absent a clear showing of abuse. See Pacifico v. State, 642 So.2d 1178, 1182 (Fla. 1st DCA 1994). Clowers posits that the prosecution, by questioning defense counsel’s claim that Clowers was guilty only of manslaughter, denigrated his theory of defense, in contravention of the dictate that closing remarks are not to be used to ridicule the defendant or his theory of innocence. See Rosso v. State, 505 So.2d 611 (Fla. 3d DCA 1987). A contextual examination of the prosecution’s remarks, however, reveals that the State hewed closely to the facts in evidence, asking the jury to draw its own inferences from the circumstances surrounding Ms. Satchel’s murder. Given the standard of review, we do not find this to be anything other than a logical analysis of the evidence in light of the applicable law.

Legality of a sentence raises a question of law, subject to de novo review. See Grosso v. State, 2 So.3d 362, 364 (Fla. 4th DCA 2008). Clowers denies the trial court’s authority under section 775.087(2)(a)3., Florida Statutes, to impose a minimum mandatory term of life in prison, even upon a jury finding the defendant discharged a firearm and thereby caused death or great bodily harm. Section 775.087(2)(a), the “10-20-life” law, is an enhancement provision, under which a criminal sentence may be heightened if the perpetrator has carried or used a weapon or firearm in the commission of a felony. See § 27.366(1), Fla. Stat. (providing, “[i]t is the intent of the Legislature that convicted criminal offenders who meet the criteria in [sections] 775.087(2) and (3) be sentenced to the minimum mandatory prison terms provided herein”). Section 775.087(2)(a)3. provides for a mandatory life sentence where the criminal has been convicted of:

[A] felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q .... and during the course of the commission of the felony such person discharged a ‘firearm’ or ‘destructive device’ ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person....

Appellant, of course, stood convicted of a capital felony under section 782.04(l)(a), the only penalty for which, short of death, is a minimum mandatory term of life in prison. See § 775.082(1), Fla. Stat. (providing that person convicted of capital felony “shall be punished by life imprisonment and shall be ineligible for parole”). Although one might question why the State charged appellant under section 775.087, we can certainly conceive that the State wished to preserve the right to seek a 10-20-life sentence enhancement in the event of conviction of a lesser-included offense, such as manslaughter. Whatever the reason, any citation to section 775.087(2)(a)3. does not affect the legality of the sentence for first-degree murder. Here, appellant was convicted and sentenced solely for a capital felony. Thus Hoover v. State, 877 So.2d 751 (Fla. 1st DCA 2004), relied on by appellant, is inapposite. See id. at 752 (reversing mandatory life sentences for kidnapping, robbery, and carjacking, but affirming mandatory minimum life sentence for first-degree murder).

AFFIRMED.

BENTON and ROBERTS, JJ., concur.


text:
    Thomas O. DAAKE, Sr., and Adele Z. Daake, Appellants, v. C-D JONES AND CO., INC., Admar Plumbing, Inc., A.F.A.B. Contractors, Inc., Affordable Systems, Inc., Professional Pools & Custom Concrete, Inc., P.L. Grimm, Inc., and Dennis Jones, Appellees.
    No. 1D09-4947.
    District Court of Appeal of Florida, First District.
    April 13, 2010.

      Loren E. Levy and Ana C. Torres of the Levy Law Firm, Tallahassee, and Bruce D. Partington of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellants.
    No appearance for Appellees.
   PER CURIAM.

The Court has determined that because the lower tribunal’s judicial labor is incomplete, the appeal is premature. See generally S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). Accordingly, the appeal is dismissed for lack of jurisdiction. All pending motions are denied.

WOLF, LEWIS, and MARSTILLER, JJ., concur.


author: CRENSHAW, Judge.

text:
    Ronald SZEWCZYK, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5684.
    District Court of Appeal of Florida, Second District.
    April 14, 2010.
   CRENSHAW, Judge.

Ronald Szewczyk challenges the post-conviction court’s order dismissing as untimely his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850(b). We reverse.

Rule 3.850(b) provides that in a noncapi-tal case, a motion for postconviction relief is timely if filed within the two-year period following the date on which the judgment and sentence become final. If the last day of the period ends on a legal holiday, “the period shall run until the end of the next day that is neither a Saturday, Sunday, nor legal holiday.” Fla. R.Crim. P. 3.040; see also Fla. R.App. P. 9.420(f).

This court per curiam affirmed Mr. Szewczyk’s direct appeal, and the mandate issued on September 7, 2007. See Szewczyk v. State, 963 So.2d 239 (Fla. 2d DCA 2007) (table decision). Mr. Szewczyk had until September 7, 2009, to file his motion for postconviction relief. However, since the two-year period ended on Labor Day, a legal holiday, he had until the next day to file his motion. Thus Mr. Szewczyk’s motion for postconviction relief, filed on September 8, 2009, was timely.

Accordingly, we reverse the postconviction court’s order and remand for the court to consider the timely filed motion.

DAVIS and WALLACE, JJ., Concur.


author: DAMOORGIAN, J.

text:
    STATE CO., INC., and John Giffin, Appellants, v. SIR ELECTRIC, Appellee.
    No. 4D09-1448.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.

      Robert Garven, Coral Springs, for appellants.
    William H. Pincus of the Law Offices of William H. Pincus, West Palm Beach, for appellee.
   DAMOORGIAN, J.

We affirm on all issues. We need not address the issue of attorney’s fees at this juncture, since the trial court has only reserved jurisdiction to award fees, and accordingly, this issue not ripe for our review.

Affirmed.

WARNER and LEVINE, JJ., concur.


text:
    S.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1837.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    Rehearing Denied April 30, 2010.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

S.B., the defendant below, appeals from the trial court’s finding of guilt and withholding of adjudication as to one charge of resisting an officer without violence. He argues that the trial court should have granted his motion for judgment of dismissal because the State presented no evidence that he knew of the officers’ intent to detain him. We agree and reverse.

In a Petition for Delinquency, the State charged S.B. with resisting an officer without violence. The evidence presented by the State at the hearing on the Petition was that, on the night of the incident, two officers observed two juveniles, one of whom was S.B., walking though a small apartment complex. One of the officers testified that what drew his attention to the juveniles is that they were looking around and appeared to be scanning. At that point, according to that officer, he saw them walk over to a car. The officer further testified that he tried to shut his car door quietly, but apparently the juveniles heard the door close and they looked up and took off running. The second officer testified that when the juveniles saw him and his partner, they “did a one eighty and took flight on foot.” The first officer also testified that he followed the juveniles, who did not see him in pursuit. Finally, he explained that he subsequently found the juveniles, who were taken into custody.

After the State rested, S.B. moved for a judgment of dismissal, arguing that the State did not meet its burden to prove the case of resisting an officer without violence. The trial court denied the motion. The defense rested and renewed its motion for judgment of dismissal. Following the hearing, the trial court entered an order finding S.B. guilty. The trial court withheld adjudication and placed S.B. on juvenile probation. This appeal follows.

S.B. argues that the trial court erred in denying his motion for judgment of dismissal because the officers did not issue an order for him to stop and, thus, there was no evidence that he knew of the officers’ intent to detain him. We agree.

Because the standard of review that applies to motions for judgment of dismissal in a juvenile case is the same standard that applies to motions for judgment of acquittal in an adult criminal case, the juvenile court’s ruling is reviewed de novo. A.L.J. v. State, 12 So.3d 873, 874 (Fla. 4th DCA 2009); J.P. v. State, 855 So.2d 1262, 1264 n. 1 (Fla. 4th DCA 2003). When moving for a judgment of acquittal, a defendant admits both the facts adduced, as well as every conclusion favorable to the State that a finder of fact could fairly and reasonably infer from the evidence. Ackon v. State, 14 So.3d 1146, 1148 (Fla. 4th DCA 2009) (quoting Maglio v. State, 918 So.2d 369, 374 (Fla. 4th DCA 2005)). Evi-denee is sufficient to sustain a conviction if a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the State. Horne v. State, 997 So.2d 1262, 1264 (Fla. 4th DCA 2009).

The applicable statute, section 848.02, Florida Statutes (2008), provides as follows:

Whoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

In order to support a conviction for obstruction without violence, “the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla.2009). Flight, standing alone, is not sufficient to form the basis of a charge for resisting without violence and, thus, the act of flight alone is not a criminal offense. Id. at 1186. “To be guilty of unlawfully resisting an officer, an individual who flees must know of the officer’s intent to detain him ....” Id. (citing H.H. v. State, 775 So.2d 397, 398 (Fla. 4th DCA 2000)) (emphasis added).

Here, like the defendants in Clark v. State, 976 So.2d 1225 (Fla. 4th DCA 2008), and Parker v. State, 18 So.3d 555 (Fla. 1st DCA 2008), although S.B. fled upon seeing the officers, there was no command to stop by the officers at the time S.B. began to flee. Also, one of the officers testified that he did not think that S.B. even knew he was being pursued. Thus, although the evidence may reflect that S.B. was aware that he had caught the officers’ attention when he began to flee, it does not prove that he had knowledge that the officers intended to detain him. Accordingly, the State failed to prove every element of the crime, and the trial court should have granted the motion for judgment of dismissal.

Reversed and remanded for entry of judgment of dismissal.

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


text:
    Alexander F. VITALE, Appellant, v. Anne VITALE n/k/a Anne Mitchell, Appellee.
    No. 4D08-3646.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.

      Alexander F. Vitale, Naples, Pro Se.
    Christopher N. Link of Christopher N. Link, P.A., Plantation, for appellee.
   PER CURIAM.

Alexander F. Vitale appeals an award of attorney’s fees to his former wife, Anne Vitale n/k/a Anne Mitchell, arising from post-dissolution proceedings. We affirm the award of attorney’s fees to the former wife following the former husband’s notice of voluntary dismissal of his Amended Supplemental Petition for Modification, but reverse the award of attorney’s fees to the former wife following denial of the former husband’s Emergency Motion for Christmas Visitation.

On July 16, 2003 the parties entered into a mediated marital settlement agreement. At that time their two minor daughters were nine and seven years old. The settlement agreement provided a visitation schedule to accommodate the fact that the former husband was living in Collier County and the former wife and the children were living in Broward County. It also established the former husband’s child support obligation and resolved a host of other marital property issues. With respect to attorney’s fees for the agreement, it provided that each party would be responsible for his or her own attorney’s fees, suit monies and costs. However, for later enforcement the agreement provided for fees for the prevailing party. Paragraph 30 of the agreement states:

DEFAULT: In the event of a breach of this Agreement by either party, the prevailing party shall be entitled to reasonable attorney’s fees and court costs.

The parties were divorced by partial final judgment of dissolution dated April 7, 2004. The partial final judgment incorporated the parties’ Mediated Marital Settlement Agreement, dated July 16, 2003. It further stated that the trial court reserved jurisdiction to resolve all issues not settled under the Settlement Agreement, “including the issue of permanent designation of primary residential parent, relocation of minor children and child support, currently set for final hearing on April 21, 2004 and April 22, 2004.” The partial final judgment also reserved jurisdiction to enforce the terms of the parties’ settlement agreement and grant other relief in the best interests of the children.

On April 21, 2004, the Broward Circuit court denied the former husband’s motion to change venue.

On May 25, 2004, the trial court entered a final judgment incorporating a second mediation agreement dated May 25, 2004. The final judgment stated, “The Partial Final Judgment previously entered on April 7, 2004 and prior Agreement is also incorporated herein by reference as if fully set forth herein.” As did the July 16, 2003 settlement agreement, the second mediated agreement provided that each party would be responsible for attorney’s fees and costs incurred in connection with this action.

On September 8, 2005, the Former Husband filed “Former Husband’s Supplemental Petition for Modification of Final Judgment.” The petition sought: 1) custody of the children; 2) alternatively, to modify the existing provisions for visitation and child support to prohibit interference with his visitation by former wife and her husband; 3) appointment of a guardian ad litem to represent the interests of the children; and 4) recovery of money advanced by the former husband on behalf of the former wife for the children’s airfares.

On November 21, 2005, the former husband filed an “Emergency Motion Regarding Christmas Visitation.” The motion sought to require the former wife to take the children out of school for their Christmas vacation a day early so that they could visit with their aunt and cousins (who were flying in from Los Angeles for one day) before they flew to Boston for the remainder of their Christmas holiday.

On December 9, 2005, the trial court entered an order which denied the former husband’s emergency motion regarding Christmas visitation. The order stated, “The former wife is entitled to attorney’s fees and costs for these motions and the court reserves jurisdiction to determine.”

On February 27, 2006, the former husband filed an amended supplemental petition to modify custody, or visitation, and for other relief.

On May 9, 2006, the former husband filed a Notice of Voluntary Dismissal of his petitions. The former wife filed her “Motion for Attorney’s Fees and Costs Following Former Husband’s Notice of Voluntary Dismissal.” The former wife amended her motion for fees to include fees relating to the holiday visitation issue, and on August 24, 2007, filed her Amended Motion for Attorney’s Fees and Costs Following Former Husband’s May 9, 2006 Notice of Voluntary Dismissal and Pursuant to December 9, 2005 Order Reserving Jurisdiction to Determine Amount of Attorney’s Fees as to Holiday Visitation. The rulings on these motions are the subject matter of this appeal.

The Former Wife sought attorney’s fees and costs pursuant to the terms of the Mediated Marital Settlement Agreement and “pursuant to Rule 12.420(b), Florida Family Law Rules of Procedure, rules 1.420 and 1.420(d), Florida Rules of Civil Procedure, § 61.16, Florida Statutes, Ro sen v. Rosen, 696 So.2d 697 (Fla.1997), and other applicable rules and Florida case law.”

On September 21, 2007, the Broward Circuit court heard the former wife’s attorney’s fee motion. At that hearing, billing records for the wife’s attorney were entered into evidence without objection. An Agreed Order was entered, stating, “The attorneys and the parties have agreed that to conclude this hearing and the subject matter thereof, the parties shall submit information to the Court by memorandum, exhibits, and any additional argument without the necessity of an additional hearing. The parties have agreed that they shall submit this information on or before April 25, 2008.”

On August 13, 2008, after noting the December 2005 ruling that the former wife was entitled to attorney’s fees as to the former husband’s holiday visitation motion, the trial court entered an order determining the amount to be $2,871.25. This amount was based on testimony as to the number of hours expended (9.3 attorney hours and 0.65 legal assistant hours) at hourly rates of $300 and $125 per hour, respectively. The court indicated in con-clusory fashion that it had “considered all the factors under Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985).”

On that same date, the trial court entered its “Order Granting Attorney’s Fees and Costs Following Former Husband’s May 9, 2006 Notice of Voluntary Dismissal.” The trial court awarded $10,796.25 in attorney’s fees and costs, stating:

The Court finds based upon the Memorandum of Law in Support of the Former Wife’s Amended Motion for Attorney’s Fees and Costs Following Former Husband’s May 9, 2006 Notice of Voluntary Dismissal, allows this Court to assess attorney’s fees and costs for the necessity of defending this action under the case law cited therein in addition to the fact that the Court finds that the former Wife was the prevailing party and the Former Wife is entitled to attorney’s fees and costs contractually as well as statutorily and pursuant to Florida case law.

The former husband appeals both awards of attorney’s fees to the former wife. He argues that the award of attorney fees in family law proceedings must be based on the principles set forth in section 61.16, Florida Statutes (2008), and Rosen v. Rosen, 696 So.2d 697 (Fla.1997). These require that an award of attorney fees be based on a showing of need and ability to pay after consideration of the parties’ relative financial positions. In this case, he argues, there was no evidence presented as to the parties’ financial positions and ability to pay.

“[I]n cases involving a marital settlement agreement with a prevailing party provision, section 61.16, Florida Statutes, cannot be used as a basis for an award of attorney’s fees.” Ulbrich v. Coolidge, 935 So.2d 607, 608 (Fla. 4th DCA 2006) (citing Zakian v. Zakian, 837 So.2d 549, 551 (Fla. 4th DCA 2003); Dean v. Dean, 655 So.2d 243, 244 (Fla. 3d DCA 1995)). Instead, the provisions in the marital settlement agreement awarding attorney’s fees are generally enforced. Id. In this case, under the terms of the attorney’s fee provisions incorporated into the final judgment, the prevailing party standard applies, and it is applicable only to actions brought in the event of a breach of the agreement. As to the former husband’s petition for modification of the Christmas holiday visitation, neither party was claiming a default or breach of the agreement. The former husband was merely seeking a one-day modification of the agreement to accommodate his holiday schedule. Thus, after denying the petition, the trial court erred in using the prevailing party standard to award the former wife attorney’s fees for the holiday visitation petition, rather than the general family law standard. See Harrison v. Gattozzi, 992 So.2d 865, 866 (Fla. 5th DCA 2008) (stating that the prevailing party attorney fee provision of the marital settlement agreement was “applicable only to actions to enforce the marital settlement agreement,” not to the father’s attempts to modify the agreement). We, therefore, reverse the attorney’s fees awarded the former wife for the holiday modification petition because the trial court did not determine entitlement to fees based on a showing of need and ability to pay, as required by the general family law standard.

We affirm, however, the prevailing party attorney’s fees awarded to the former wife following the former husband’s voluntary dismissal of his amended supplemental petition, because the petition sought relief based on claims of default and breach of the agreement, primarily regarding relocation and visitation. See Indemnity Ins. Co. of North America v. Chambers, 732 So.2d 1141, 1143 (Fla. 4th DCA 1999)(In a voluntary dismissal, the trial court has jurisdiction to award attorney fees as costs to the prevailing party where authorized by a contract between the parties).

Affirmed in part; Reversed in part.

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    James SEBASTIANO, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-287.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    James Sebastiano, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

James Sebastiano seeks review of an order that denied his motion to mitigate sentence. We grant the petition for writ of certiorari, noting that Sebastiano filed his motion to permit the trial judge to impose the sentence as represented at the sentencing hearing. When imposing Se-bastiano’s sentence, the trial judge stated that the length of Sebastiano’s probation would be reduced if the appellate court affirmed the restitution award. This court per curiam affirmed the case, which included Sebastiano’s restitution challenge.

Sebastiano’s motion followed with the relevant portion of the sentencing transcript. See Sebastiano v. State, 14 So.3d 1160 (Fla. 4th DCA), review denied, 24 So.3d 560 (Fla.2009). Sebastiano’s motion was considered by a different judge and denied. We grant the petition and remand the matter to allow the trial judge who presided at the December 2007 sentencing hearing to consider Sebastiano’s motion.

Petition Granted.

STEVENSON, TAYLOR and LEVINE, JJ., concur.


author: ALTENBERND, Judge.

text:
    Angela Rose SHEPPARD, Appellant, v. Michael Joseph JEDLICKA, Jr., Appellee.
    No. 2D08-1912.
    District Court of Appeal of Florida, Second District.
    April 16, 2010.
    Julian A. Hayes of Law Office of J.A. Hayes, P.A., Tampa, for Appellant.
    David M. Caveda and Adam M. Bragg of Caveda Law Firm, P.A., Tampa, for Appel-lee.
   ALTENBERND, Judge.

Angela Rose Sheppard appeals a final judgment awarding custody of her child to the father, Michael Joseph Jedlicka, Jr. We conclude that the trial court did not abuse its discretion in making this difficult custody decision.

The parties concede that the trial court erred in failing to resolve the issue of retroactive child support that is potentially owing to Ms. Sheppard. Likewise, the trial court faded to resolve the issues surrounding Ms. Sheppard’s request for attorney’s fees. On remand, the trial court shall resolve these remaining issues.

Affirmed in part, reversed in part, and remanded.

KELLY and KHOUZAM, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Heath A. DEMARCO, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4131.
    District Court of Appeal of Florida, Second District.
    April 16, 2010.
   NORTHCUTT, Judge.

Heath A. Demarco seeks review of a final order denying his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Demarco raises one claim of ineffective assistance of counsel for counsel’s failure to raise the issue of Demarco’s competency to participate in the legal proceedings. The post-conviction court construed Demarco’s claim as one raising trial court error in failing to make a determination of incompetency and found the claim procedurally barred. See Whitfield v. State, 923 So.2d 375, 379 (Fla.2005); Marshall v. State, 854 So.2d 1235, 1248 (Fla.2003). However, De-marco’s claim appears on its face to be an ineffective assistance of counsel claim, and the narrow argument that counsel was ineffective for failing to raise a defendant’s competency is cognizable in a rule 3.850 motion. See Carroll v. Slate, 815 So.2d 601, 610 (Fla.2002); Schultheis v. State, 12 So.3d 811, 812 (Fla. 1st DCA 2009). Accordingly, we reverse the denial of Demar-co’s motion and remand for further proceedings.

Reversed and remanded.

LaROSE and CRENSHAW, JJ., Concur.


text:
    Daniel John MONFORTO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1428.
    District Court of Appeal of Florida, Second District.
    April 21, 2010.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Daniel Monforto was on probation when he was convicted of committing a new crime. The circuit court determined that Monforto violated his probation by virtue of the new conviction, whereupon the court revoked his probation. We reverse because this court subsequently reversed the conviction upon which the revocation was based. Monforto v. State, 28 So.3d 65 (Fla. 2d DCA 2009), review denied, No. SC09-1769, 2010 WL 1001357 (Fla. Mar. 17, 2010).

When seeking to have Monforto’s probation revoked, the State relied solely on the bare fact of Monforto’s new conviction. It offered no separate evidence of Monforto’s alleged illegal conduct. In such circumstances, reversal of the new conviction requires setting aside the probation revocation as well. Stevens v. State, 409 So.2d 1051, 1052 (Fla.1982); Humbert v. State, 933 So.2d 726, 728 (Fla. 2d DCA 2006). Therefore, we reverse the revocation of Monforto’s probation. We remand for a new hearing at which the State may again attempt to prove by a preponderance of the evidence that Monforto violated his probation by committing a new law violation. See Humbert, 933 So.2d at 727.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.


author: LaROSE, Judge.

text:
    C.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-707.
    District Court of Appeal of Florida, Second District.
    April 21, 2010.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant,
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

C.P. was adjudicated delinquent for throwing a deadly missile into an occupied vehicle. On appeal, he argues that the trial court erred in imposing a $250 public defender fee without giving him notice and an opportunity to be heard. We agree and the State concedes error. Accordingly, C.P.’s adjudication and sentence are affirmed. We reverse the imposition of the $250 public defender fee and remand to the trial court to strike it. The trial court may reimpose the fee only if it provides C.P. with notice of its intent to do so and the opportunity to be heard at a hearing on the matter. See McMillan v. State, 8 So.3d 1237, 1238 (Fla. 2d DCA 2009); Bruno v. State, 960 So.2d 907, 908 (Fla. 2d DCA 2007).

Affirmed in part, reversed in part, and remanded.

VILLANTI and WALLACE, JJ., Concur.

      . The issue was preserved by the filing of a Florida Rule of Juvenile Procedure 8.135(b) motion to correct disposition or commitment error. The trial court did not rule on the motion within thirty days; thus, it is deemed denied. Fla. R. Juv. P. 8.135(b)(1)(B); O.H. v. State, 948 So.2d 79, 80 (Fla. 2d DCA 2007).


author:
PER CURIAM.
     CLARK, J.,

text:
    In re Louis G. SCOTT.
    No. 2009-B-1886.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
    Rehearing Denied April 5, 2010.

      Charles Bennett Plattsmier, Baton Rouge, Gregory Lynn Tweed, for Applicant.
    Walter Lee Perkins, Jr., Louis Grander-son Scott, for Respondent.
   1 .ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

07-DB-071

The Wesley Matter

In June 2004, DeWanda Perry Wesley purchased a used car from a dealership in the Monroe area, financing the purchase through Crescent Bank and Trust (“Crescent”). The car began having mechanical problems almost immediately after the purchase and stopped functioning altogether in early September 2004. As such, on November 15, 2004, Ms. Wesley consulted respondent about any legal remedies she may have, paying him a $45 consultation fee. In December 2004, respondent met with Ms. Wesley and sent the car dealership a demand letter, demanding repayment of the car’s purchase price. Both respondent and Ms. Wesley understood that respondent would not charge her a fee to handle the matter.

Lin the meantime, Ms. Wesley stopped paying her car note and was sued by Crescent. On June 1, 2005, the trial court granted summary judgment in favor of Crescent Bank.

At about the same time, Ms. Wesley personally spoke with respondent, and he reminded her that he needed $195 for court costs before he could file anything on her behalf in response to the Crescent lawsuit. On June 16, 2005, Ms. Wesley paid respondent the requested $195. Nevertheless, respondent did not file any pleading on behalf of Ms. Wesley until May 1, 2006; at which time he filed a third-party demand against the car dealership, the salesman, and the extended warranty provider.

In 2007, Crescent obtained a judgment to garnish Ms. Wesley’s wages. When Ms. Wesley had trouble contacting respondent about the garnishment, she filed a disciplinary complaint against him. Thereafter, respondent advised Ms. Wesley to seek new counsel and returned her file.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(b) (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client), 3.2 (failure to make reasonable efforts to expedite litigation), and 8.4(a) (violation of the Rules of Professional Conduct).

\z08-DB-020

The Davis Matter

The alleged misconduct in the Davis matter stems from two separate representations by respondent of Lester Davis. In the first matter, Mr. Davis hired respondent in late 2003 to handle his mother’s succession. Mr. Davis paid respondent $550 in the succession matter. Respondent filed the necessary pleadings, and a judgment of possession was issued in January 2004. Approximately one year later, Mr. Davis attempted to refinance property he received as part of the succession. However, he discovered the judgment of possession contained a typographical error that placed his deceased mother in possession of the property instead of himself and his sister. Mr. Davis contacted respondent concerning the error, but respondent did not correct it quickly. Therefore, the lender retained attorney Patrick Wright to correct the judgment of possession for a fee of $350, which Mr. Davis paid in February 2005.

In the second matter, on January 3, 2005, Mr. Davis paid respondent $1,050 to represent him on a DWI and careless operation charge. Neither respondent nor Mr. Davis appeared at the arraignment on January 19, 2005. Instead, attorney Robert Noel appeared on Mr. Davis’ behalf in place of respondent. Mr. Noel waived Mr. Davis’ appearance and formal arraignment and entered a plea of not guilty on Mr. Davis’ behalf. Respondent did not inform Mr. Davis that he would not be appearing and did not discuss with Mr. Davis the waiver of Mr. Davis’ appearance, the waiver of arraignment, or what plea would be entered.

Mr. Davis received notice that his trial date was April 4, 2005 and appeared in court on that date. Attorney Kenneth Trahan appeared in place of respondent and ^requested a continuance. Respondent did not inform Mr. Davis that he would not be present or that a continuance would be requested.

In May 2005, Mr. Davis sent respondent a letter, terminating his services and requesting a refund of the fees he paid. Respondent failed to provide a refund at that time.

After hiring attorney Amado Leija to handle the DWI matter, Mr. Davis learned that respondent attended an administrative hearing on his behalf. Respondent never informed Mr. Davis of the hearing.

In September 2007, frustrated by “the length of time it took in order to get a response from Attorney Scott,” Mr. Davis filed a disciplinary complaint against respondent. In November 2007, respondent refunded a total of $1,130 to Mr. Davis. Thereafter, Mr. Davis sent the ODC a letter dated November 14, 2007, indicating that he and respondent came to an “amicable resolution concerning my complaint. Therefore, this matter can be considered closed.”

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2, 1.3, 1.4, 1.16(d) (obligations upon termination of the representation), and 8.4(a).

DISCIPLINARY PROCEEDINGS

In November 2007, the ODC filed the formal charges in 07-DB-071. In February 2008, the ODC filed the formal charges in 08-DB-020. Respondent answered both sets of formal charges and denied any misconduct. The two matters were then consolidated by order of the hearing committee chair before being considered together by the hearing committee.

| .-Respondent and the ODC both called witnesses to testify at the formal hearing. The parties also entered into a stipulation of facts as detailed in the hearing committee’s report below.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee adopted the stipulation of facts presented by the parties, and made its own findings, as follows:

The Wesley Matter

Stipulated facts

III. In 2004, Ms. Wesley purchased a used vehicle from a dealership in the Monroe area. Thereafter, Ms. Wesley began to experience problems with the vehicle;

IV. On November 15, 2004, Ms. Wesley consulted with respondent to determine what legal remedies she may have and paid him a $45 consultation fee;

V. In early January 2005, Crescent Bank filed a lawsuit against Ms. Wesley based on her failure to make timely car payments;

VI. In February 2005, Ms. Wesley met with respondent to discuss the suit filed by Crescent Bank, and respondent agreed to assist Ms. Wesley in the matter;

VII. The court record reflects the following activities:

A. On February 28, 2005, Crescent Bank obtained a preliminary default;
B. On March 16, 2005, Crescent Bank obtained a default judgment. That same day, respondent filed an answer and third party demand, which was returned for failure to pay court costs;
[,;C. On April 6, 2005, respondent filed a motion for new trial, asserting that he filed an answer the same day the default judgment was entered, which answer was returned to him because the default judgment was signed while the answer was still in the clerk of court’s office;
D. On April 11, 2005, the judge denied the motion for new trial;
E. On April 14, 2005, opposing counsel filed a motion to vacate judgment, and the judge vacated the judgment;
F. On May 12, 2005, Crescent Bank filed a motion for summary judgment;
G. On May 27, 2005, respondent filed an opposition to the motion for summary judgment;
H. On July 6, 2005, the court granted the summary judgment;

VIII. In October 2006, respondent, through his secretary, informed Ms. Wesley that a pre-trial conference had been set for January 17, 2007. The conference date was subsequently removed from the docket;

IX. On April 10, 2007, Crescent Bank obtained a garnishment on Ms. Wesley’s wages to satisfy the summary judgment.

Findings made by the hearing committee

The committee determined that Ms. Wesley was a “very credible witness.” The committee rejected respondent’s effort to justify his handling of Ms. Wesley’s legal matter, characterizing his conduct as an “egregious mismanagement of a redhi-bitory defect claim.” The committee found that respondent failed to keep Ms. Wesley informed about activities concerning her legal matter, failed to diligently pursue her legal matter, and failed to initiate a lawsuit on her behalf, despite his assurances that he would do so. Based on these findings, the committee determined that respondent 17violated Rules 1.2, 1.3, 1.4, 3.2, and 8.4(a) of the Rules of Professional Conduct. The committee did not find a violation of Rule 1.5(b).

The Davis Matter

Stipulated facts

X. In late 2003, following the death of his mother, Mr. Davis retained respondent for a fee of $550 to handle the succession. Respondent filed the necessary pleadings, and a judgment of possession was issued on January 16, 2004;

XI. In December 2004, Mr. Davis was arrested on DWI (first offense) and careless operation charges. Mr. Davis consulted with respondent, and on January 3, 2005, Mr. Davis paid respondent a “flat fee” of $1,050 to represent Mr. Davis in connection with those charges;

XII. Mr. Davis’ arraignment was scheduled for January 19, 2005. On January 3, 2005, respondent advised Mr. Davis that he did not have to appear at the arraignment. On January 19, 2005, attorney Robert Noel appeared in place of respondent and waived Mr. Davis’ appearance and formal arraignment and entered a plea of not guilty on Mr. Davis’ behalf;

XIII. Mr. Davis received notice that the matter was set to got to trial on April 4, 2005 and appeared in court on that date. Attorney Kenneth Trahan appeared in place of respondent and requested the trial date be rescheduled; and

XIV. On May 12, 2005, Mr. Davis sent respondent a termination letter, requesting a refund of the fees previously paid to respondent for the succession matter and the DWI matter (a total of $1,600).

\RFindings made by the hearing committee

The succession judgment drafted by respondent contained a typographical error, which was discovered when Mr. Davis attempted to refinance the property. The date Mr. Davis contacted respondent to correct the error was in dispute; however, Mr. Davis’ demand to correct the error occurred during one limited conversation. There was no testimony that respondent knew the correction was time-sensitive. Before respondent could act, the lender, not Mr. Davis, hired attorney Patrick Wright to correct the error so the closing could proceed. Mr. Wright was paid for this work on February 18, 2005.

Before learning of the typographical error in the succession judgment, Mr. Davis was charged with DWI and hired respondent to handle the matter. On April 4, 2005, the date the case was set to go to trial, Mr. Davis was in court. Respondent had a conflict; therefore, he had attorney Kenneth Trahan stand in for him and request a new trial date, which was granted. Respondent did not inform Mr. Davis of the conflict or that a continuance would be requested, which inconvenienced Mr. Davis. The inconvenience prompted Mr. Davis to terminate respondent’s services and hire attorney Amado Leija to represent him on the DWI charge. On January 27, 2006 and May 30, 2006, Mr. Davis sent respondent additional letters demanding a refund.

Respondent told Mr. Davis to come by his office to receive the refund of the fee for the DWI case. Mr. Davis paid respondent a total of $1,600 for the succession and DWI cases, and he received a total refund of $1,130. However, Mr. Davis did not go to respondent’s office as respondent advised. Mr. Davis did not expect a full refund because respondent rendered some services. As such, he left the refund amount up to respondent. Mr. Davis was satisfied with the refund and requested that the ODC dismiss the complaint. He only testified at the hearing because of the IflODC’s subpoena. He impressed the committee as being someone who takes offense quickly.

Mr. Leija stated that “somebody” attended an administrative hearing for Mr. Davis. He also stated that it is customary for attorneys to stand in for other attorneys at arraignments as a courtesy and that only “sometimes” will an attorney let a client know another attorney is standing in.

The committee determined that based upon Mr. Davis’ testimony and the exhibits, there was not clear and convincing evidence that respondent violated any Rules of Professional Conduct. Accordingly, the committee recommended that the charges in the Davis matter be dismissed.

The committee determined that respondent acted knowingly in the Wesley matter, and his mismanagement “prevented [Ms.] Wesley from having the opportunity to put her claim forward in a court of law.” Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction is suspension. The committee found the following aggravating factors present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1979). As stipulated by the parties, the committee found in mitigation that respondent demonstrated a cooperative attitude toward the disciplinary proceeding.

Finding discipline is warranted for respondent’s misconduct in connection with the Wesley matter, the committee agreed that the sanction proposed by the ODC in its pre-hearing memorandum is appropriate. Accordingly, the committee recommended that respondent be suspended from the practice of law for one year, | mfully deferred, subject to two years of supervised probation with the following conditions: 1) respondent shall establish and maintain an effective calendaring system and method to communicate with clients and obtain assistance from the Louisiana State Bar Association’s practice assistance counsel in the creation of a proper law office management program; and 2) respondent shall respond to all reasonable requests of his probation monitor, including maintaining monthly contact with the monitor.

Both respondent and the ODC filed objections to the hearing committee’s report. The ODC did not take issue with the sanction recommended by the committee, but suggested that the committee erred in recommending dismissal of the formal charges in the Davis matter. Respondent argued that the committee erred in finding that he violated the Rules of Professional Conduct in the Wesley matter.

Disciplináis Board Recommendation

After reviewing this matter, the disciplinary board found that respondent violated Rules 1.2, 1.4, and 8.4(a) with x-espect to Mr. Davis’ DWI case. The board reasoned that respondent did not know whether Mr. Davis wanted a continuance, and Mr. Davis did not approve in advance of another lawyer standing in respondent’s stead to discuss a continuance with the court. The board found no misconduct with respect to respondent’s handling of Mr. Davis’ succession proceeding.

With respect to the Wesley matter, the board found respondent failed to demonstrate manifest error in the committee’s finding that he breached his duty to Ms. Wesley by failing to file a redhibition suit on her behalf. Accordingly, the board found that the factual allegations of the formal charges relating to respondent’s neglect of Ms. Wesley’s legal matter were proven by clear and convincing evidence.

_J_yThe board determined that respondent knowingly and intentionally violated duties owed to his clients. He caused “potentially serious” harm to Ms. Wesley but only “minimal” harm to Mr. Davis. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

The board agreed with the aggravating factors found by the committee. The board found no mitigating factors are present.

Given the applicable aggravating factors and 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, fully deferred, subject to two years of supervised probation with the conditions proposed by the hearing committee. Four board members dissented and would recommend that respondent be suspended from the practice of law for one year and one day, with all but ninety days deferred.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: 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 112is 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.

In this matter, the record supports the stipulation of facts and the hearing committee’s factual findings. Based on those facts, respondent neglected Ms. Wesley’s legal matter and failed to properly communicate with her. He also failed to properly communicate with Mr. Davis with respect to his DWI matter. In acting as he did, respondent violated Rules 1.2, 1.3, 1.4, 3.2, and 8.4(a) of the Rules of Professional Conduct in the Wesley matter and Rules 1.2, 1.4, and 8.4(a) in the Davis matter.

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

Respondent knowingly violated duties owed to his clients. He caused harm to both Ms. Wesley and Mr. Davis. The baseline sanction is a suspension from the practice of law.

Aggravating factors consist of prior disciplinary offenses, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the | ^conduct, and substantial experience in the practice of law. The sole mitigating factor is respondent’s cooperative attitude toward the disciplinary proceedings.

Considering all-the circumstances of this case, we find the appropriate sanction for respondent’s misconduct is a six-month suspension from the practice of law, fully deferred. Any additional misconduct by respondent within one year from the finality of this judgment may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Louis G. Scott, Louisiana Bar Roll number 11882, be and he hereby is suspended from the practice of law for six months. This suspension shall be deferred in its entirety, subject to the condition that any additional misconduct by respondent within one year from the finality of this judgment may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty-days from the date of finality of this court’s judgment until paid.

CLARK, J., dissents and assigns reasons.

KNOLL, J., dissents for reasons assigned by CLARK, J.

CLARK, J.,

dissenting.

|,I find the record does not support that the ODC proved by clear and convincing evidence that respondent had violated any ethics rules.

Accordingly, I dissent.

       Chief Justice Kimball not participating in the opinion.

      . Respondent, testified that he requested payment of advance court costs from Ms. Wesley on more than one occasion prior to June 2005.

      . Respondent was previously the subject of a complaint alleging that he neglected a legal matter and failed to return a client's file. In April 2005, the ODC referred the complaint to diversion, which respondent successfully completed in December 2005.

      . Particularly disturbing is the fact that respondent continues to blame Ms. Wesley's failure to pay court costs for his neglect of her legal matter. Pie fails to acknowledge that the appropriate course of action, given her failure to pay court costs, was to timely withdraw from the representation to allow her to seek new counsel. Respondent also fails to acknowledge that he has a pattern of failing to communicate with clients regarding the direction of the representation, which is evident in both the Wesley and Davis matters. Again, he makes excuses or blames his client for his failure to communicate.