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    THE FLORIDA BAR, Complainant, v. Kelley Andrea BOSECKER, Respondent.
    No. SC16-1387
    Supreme Court of Florida.
    September 27, 2018
    Joshua E. Doyle, Executive Director, Tallahassee, Florida, Chardean Mavis Hill and Katrina S. Brown, Bar Counsel, Tampa, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant
    Kelley Andrea Bosecker, pro se, St. Petersburg, Florida, for Respondent
   PER CURIAM.

We have for review a referee's report recommending that Respondent, Kelley Andrea Bosecker, be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and disbarred. We have jurisdiction. See art. V, § 15, Fla. Const. Bosecker has sought review of the referee's report. For the reasons that follow, we approve in part the referee's factual findings and recommendations as to guilt, and approve the recommended disciplinary sanction of disbarment.

FACTS

Previously, in case number SC15-1592, Bosecker was the subject of a Florida Bar (Bar) disciplinary proceeding in which the Court approved the uncontested report of the referee and found her guilty of violating Bar Rules 4-3.1 (Meritorious Claims and Contentions) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice), and imposed a forty-five day suspension. Fla. Bar v. Bosecker , No. SC15-1592, 2016 WL 2595926 (Fla. May 5, 2016).

Nearly three months later, on August 1, 2016, the Bar filed a "Petition for Contempt and Order to Show Cause" against Bosecker, alleging that she was in contempt of the suspension order in case number SC15-1592, effective May 27, 2016. Specifically, Bosecker failed to comply with Bar Rule 3-5.1(h), the notification requirement, and had also continued to engage in the practice of law during her suspension by having direct contact with her clients, engaging in discussions with opposing counsel, and contacting court personnel pertaining to the following cases in which she was counsel of record: U.S. Bank, N.A. v. Rucker , case number 2013-CA-002913, in the Fifth Judicial Circuit (Lake County, Florida); Bank of New York Mellon v. Hodge , case number 14-006510-CI, in the Sixth Judicial Circuit (Pinellas County, Florida); JP Morgan Chase Bank, N.A. v. Investor Trustee Services, LLC , case number 2013-CA-000689, in the Fifth Judicial Circuit (Lake County, Florida); DeParedes v. Green Tree Servicing, LLC , case number 5D15-3412, in the Fifth District Court of Appeal; and Investor Trustee Services, LLC v. PNC Bank N.A. , case number 2D15-4549, in the Second District Court of Appeal.

As a result of her alleged improper conduct, the Bar sought disbarment.

On August 3, 2016, the Court issued its order to show cause, directing Bosecker to show cause why she should not be held in contempt or otherwise disciplined. Bosecker filed her response on September 7, 2016, stating:

[At] no time during the suspension period did she hold herself out to be an attorney, represent to anyone that she was an attorney, send any correspondence or email representing that she was an attorney; nor did Respondent take any action that violated the terms of her suspension from the Bar.

Based upon her responses to the Bar's allegations, the case was referred to a referee.

Following a final hearing, the Report of Referee was filed with the Court on May 25, 2017. The referee recommended that Bosecker be held in contempt of the order in case number SC15-1592, and recommended that she had violated Bar Rules 3-5.1(e) (Suspension), 3-5.1(h) (Notice to Clients), 3-6.1(c) (Notice of Employment Required), and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee further recommended that Bosecker be disbarred. Bosecker filed her "Notice of Intent to Seek Review of Report of Referee," and briefs have been filed by the parties.

The Referee's Findings of Fact and Recommendations as to Guilt.

Based upon the testimony presented and the evidence admitted at the hearing, the referee made the following findings and recommendations of guilt.

First, the referee found that Bosecker violated Bar Rule 3-5.1(h), as follows.

The Supreme Court of Florida issued an order dated May 5, 2016, in The Florida Bar v. Kelley Andrea Bosecker , Case No. SC15-1592, suspending Respondent from the practice of law for forty-five (45) days (the" [sic] Suspension Order'). The Suspension Order was to be effective thirty (30) days so that Respondent could protect the interests of her existing clients, unless she notified the court that the 30 days was not needed to protect her clients' interests. Respondent was ordered to accept no new business from the date of the Suspension Order until reinstated, and ordered to fully comply with Rule 3-5.1(h), Rules Regulating The Florida Bar. TFB Exh. 1.
On June 1, 2016, Respondent filed an "Amended Notice by Respondent of Commencement of Suspension," indicating that she ceased practicing law as of midnight on May 26, 2016, and elected to commence her suspension on May 27, 2016. TFB Exh. 3. On June 1, 2016, the Court entered an order making Respondent's suspension effective May 27, 2016, as requested in Respondent's notice. TFB Exh. 4. Thus, Respondent was suspended from May 27, 2016, to July 11, 2016.
From June 3, 2016, through June 13, 2016, Respondent requested extensions of time to submit her required sworn affidavit pursuant to Rule 3-5.1(h) to the Bar. The Bar granted Respondent's first request for an extension, allowing her to submit the affidavit by June 13, 2016. TFB Exh. 5. On the day the affidavit was due, Respondent again asked for additional time from the Bar, which was denied. She then filed a "Motion for Extension of Time to File Affidavit of Providing Suspension Notice" with the Court seeking an extension solely for her affidavit by June 17, 2016. TFB Exh. 6. In her motion, Respondent stated she "has sent out the required suspension notices but needs additional time to finish the list of names and addresses required to be attached to the Affidavit before the Affidavit is submitted to the Bar." The Court entered an order on June 17, 2016, allowing Respondent until June 17, 2016, to provide the affidavit to the Bar. TFB Exh. 9. Respondent submitted her Rule 3-5.1 affidavit to the Bar on June 16, 2016. TFB Exh. 8. Respondent neither requested nor was given an extension to submit the Suspension Order to the necessary persons or entities. TFB Exhs. 5, 6, 9.
The evidence showed, and Respondent admitted, that she was still furnishing a copy of her Suspension Order to clients, opposing counsel, and courts in mid-June 2016, and as late as June 16, 2016. TFB Exhs. 7, 12d, 13f, 16d, 20e. Additionally, Respondent failed to provide a copy of the Suspension Order to at least one client, Daniel and Jill Baez. TFB Exhs. 8, 19 a-b. The Court heard from the following witnesses who each testified about Respondent's violation of Rule 3-5.1(h) : Melissa Mara; Respondent; Alicia Raina Whiting-Bozich, Esq.; Julie Anthousis, Esq.; Chanelle L. Gardner; Judge Thomas H. Minkoff; Linda Holm; Joanne P. Simmons; Judge Vincent G. Torpy, Jr.; and, Kimberly Nolen Hopkins, Esq.
....
The Bar's petition, and the evidence presented at the final hearing, gave examples of Respondent's cases in which Respondent did not provide her clients with notice of her suspension until her suspension had already begun. Respondent did not give those clients an opportunity to take action to protect their interests. Additionally, opposing counsels, Ms. Whiting-Bozich, Ms. Anthousis, and Ms. Hopkins, testified that as of the dates Respondent contacted them regarding her clients' cases, the attorneys had neither received notice from Respondent that she was suspended nor provided a copy of the Suspension Order. The purpose of Rule 3-5.1(h) was entirely thwarted in this case, as Respondent was still furnishing a copy of her Suspension Order to clients, opposing counsel, and courts several weeks after she elected to start her suspension on May 27, 2016.

The referee next found facts pertaining to her recommendations that Bosecker was guilty of violating Bar Rules 3-5.1(e) and 3-6.1 :

The evidence presented at the hearing established clearly and convincingly that Respondent violated Rule 3-5.1(e) by continuing to practice law while suspended, and Rule 3-6.1(c) [sic] by having direct client contact while suspended. Respondent improperly engaged in direct contact with her clients during her period of suspension, and improperly continued to assist her clients during her suspension. Respondent engaged in improper and prohibited discussions with opposing counsel during her suspension. Respondent engaged in improper discussions with court personnel during her suspension. Respondent held herself out to the courts and opposing counsel as an attorney eligible to practice law. Respondent was also allegedly employed during the period of suspension without complying with the requirements of Rule 3-6.1.
The Referee heard from the following witnesses who testified about Respondent continuing to practice law while suspended, and her direct client contact while suspended: Respondent; Alicia Raina Whiting-Bozich, Esq.; Julie Anthousis, Esq.; Chanelle L. Gardner; Judge Thomas H. Minkoff; Linda Holm; Grace Ann Fagan, Esq.; Kimberly Nolen Hopkins, Esq.; and, Erica DeParedes.
At the final hearing, evidence was presented to support this Rule violation.
Respondent stated in the May 27, 2016, letter that she sent to her clients, opposing counsel, and the courts that she would monitor the clients' cases during the suspension period and that the clients should as well. TFB Exh. 2. Respondent's letter advised the clients that if they needed legal assistance during the suspension period, she would be happy to refer them to an appropriate attorney, and to feel free to contact her if they had any questions or needed additional information. Respondent also sent a letter dated June 1, 2016, on her "attorney at law" letterhead addressed to the District Court of Appeal Clerks in appellate cases she had asking that the District Court of Appeal Clerks provide a copy of her May 27, 2016, letter to the Judges assigned to her cases. TFB Exh. 16b.
Respondent's letters are concerning and speak volumes regarding her intent to violate the Rules. Respondent should not have been monitoring her clients' cases during her suspension period. Respondent received copies of pleadings and orders filed in her clients' cases throughout her suspension because she was still attorney of record in the cases, and did not promptly notify the courts or opposing counsel of her suspension. TFB Exhs. 14c, 16c. Additionally, Respondent's letter dated May 27, 2016, was not provided to her clients until mid-June. To give her clients an opportunity to protect their interests, Respondent should have notified them of her suspension and provided them with an attorney referral prior to the effective date of suspension. Respondent should not have welcomed her clients to contact her during her suspension, as she was prohibited from having direct contact with them. Each of these actions violates the Rules and supports a finding of contempt.
The Bar then presented several cases in which Respondent's participation violated the Suspension Order. In each case, the evidence and testimony demonstrated misconduct in the form of prohibited client contact, lack of employer supervision, and practicing law during the suspension period. A running theme in all of these cases was Respondent's assertion and testimony that other attorneys supervised her, namely Ann Pellegrino and Andrea Roebuck. However, prior to and during Respondent's suspension, the Bar did not receive any notice from Ms. Pellegrino or Ms. Roebuck pursuant to Rule 3-6.1(c) indicating that Respondent was employed by either of them during the period of her suspension. TFB Exhs. 10, 11. In fact, no such notice was received until after the Bar filed its Petition for Contempt and Order to Show Cause in this case. Respondent, Ms. Pellegrino, and Ms. Roebuck each testified that none of them had read Rule 3-6.1 regarding employment of suspended lawyers until about September of 2016, although the Bar sent Respondent a letter dated May 9, 2016, advising her to review Rule 3-6.1 if she intended to be employed while suspended. Respondent testified that she received the Bar's May 9, 2016, letter.
....
In each of these cases, Respondent's suspension prohibited her from providing legal services and legal advice.... The evidence and testimony presented clearly and convincingly shows that Respondent counselled and assisted her clients throughout her suspension, which is the unauthorized practice of law in violation of her suspension order.[ ]

Lastly, the referee found facts pertaining to her recommendation that Bosecker was guilty of violating Bar Rule 4-8.4(c), as follows:

Respondent admitted that on June 13, 2016, Respondent filed a Motion for Extension of Time to File Affidavit of Providing Suspension Notice, stating that Respondent had sent out the required suspension notices but needed additional time to finalize the list of names and addresses required to be attached to the Affidavit, and requesting an extension until June 17, 2016, to furnish her Rule 3-5.1 sworn affidavit to The Florida Bar. TFB Exh. 6. However, on June 14, 2016, and June 16, 2016, Respondent sent out the required suspension notice to her clients, opposing counsel, and the court in at least two (2) cases. TFB Exhs. 7, 20e. Respondent misrepresented in her motion filed on June 13, 2016, that she had sent out the required suspension notices. Respondent knowingly made a misrepresentation and never corrected her misstatement to the Court. Furthermore, Respondent engaged in deception and dishonesty by failing to timely inform her clients, opposing counsel, and the courts of her suspension. Although Respondent elected to start her suspension early, she waited for weeks before sending out the required notices. In several of the cases addressed at the final hearing, Respondent's clients were not given prior notice of suspension in order to protect their own interests. Moreover, Respondent continued to communicate with opposing counsel and the courts in her cases without notifying them that she was suspended.

The Referee's Recommended Sanction. In determining the appropriate sanction to recommend, the referee first considered the following Florida Standards for Imposing Lawyer Sanctions: 3.0 (Generally); 4.61 ("Disbarment is appropriate when a lawyer knowingly or intentionally deceives a client with the intent to benefit the lawyer or another regardless of injury or potential injury to the client."); 6.11 ("Disbarment is appropriate when a lawyer: (a) with the intent to deceive the court, knowingly makes a false statement or submits a false document; or (b) improperly withholds material information, and causes serious or potentially serious injury to a party or causes a significant or potentially significant adverse effect on the legal proceeding."); 7.1 ("Disbarment is appropriate when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system."); and 8.1 ("Disbarment is appropriate when a lawyer: (a) intentionally violates the terms of a prior disciplinary order and such violation causes injury to a client, the public, the legal system, or the profession; or (b) has been suspended for the same or similar misconduct, and intentionally engages in further similar acts of misconduct.").

Additionally, the referee found five aggravating factors under Florida Standard for Imposing Lawyer Sanctions 9.22, including the following: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (d) multiple offenses; (g) refusal to acknowledge wrongful nature of conduct; and (i) substantial experience in the practice of law. The referee found that the mitigating circumstances under Florida Standard for Imposing Lawyer Sanctions 9.32, that Bosecker argued for, did not exist.

ANALYSIS

Rule Violations

The Court's review of the referee's findings of fact as to each rule violation is limited, and if a referee's findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick , 756 So.2d 79, 86 (Fla. 2000) ; see Fla. Bar v. Jordan , 705 So.2d 1387, 1390 (Fla. 1998). Moreover, "[t]he referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect." Fla. Bar v. Tobkin , 944 So.2d 219, 224 (Fla. 2006) (quoting Fla. Bar v. Thomas , 582 So.2d 1177, 1178 (Fla. 1991) ). As to the recommendations of guilt, the Court has stated that the referee's factual findings must be sufficient under the applicable rules to support the recommendations. See Fla. Bar v. Shoureas , 913 So.2d 554, 557-58 (Fla. 2005). Here, the referee found Bosecker guilty of violating Bar Rules 3-5.1(e), 3-5.1(h), 3-6.1(c), and 4-8.4(c), which are discussed below in turn.

Bar Rule 3-5.1(e) (Suspension). With regard to Bar Rule 3-5.1(e), the referee found that the Bar established that Bosecker had engaged in the practice of law throughout the period of her suspension. The record evidence established, with respect to specific cases, that Bosecker continued to assist her clients during her suspension, based upon such conduct as advising her clients that she would monitor their cases and having had discussions with opposing counsel and court personnel during her suspension without advising them that she was under suspension. Bosecker also received copies of pleadings and orders filed in her clients' cases throughout her suspension because she was still attorney of record in the cases, and did not promptly notify the courts or opposing counsel of her suspension.

Bar Rule 3-5.1(h) (Notice to Clients). The evidence showed, and Bosecker admitted at the hearing before the referee, that, while the suspension was effective May 27, 2016, she was still furnishing copies of her suspension order to clients, opposing counsel, and courts in mid-June 2016. In addition, in seeking an extension from this Court on June 13, 2016, to file her affidavit pertaining to the suspension notices, Bosecker represented to the Court that all notices had been provided. This was a misrepresentation of fact.

Bar Rules 3-6.1(c) (Notice of Employment Required) and 3-6.1(d)(1) (Prohibited Conduct; Direct Client Conduct). Bosecker testified that she was working for attorneys Pellegrino and Roebuck at the time that she was suspended. While Bar Rule 3-6.1 allows for attorneys under suspension or disbarment to perform services that may be ethically performed by nonlawyers, notice is required pursuant to Bar Rule 3-6.1(c). Specifically, Bar Rule 3-6.1(c) requires that "[b]efore employment commences, the entity must provide The Florida Bar with a notice of employment and a detailed description of the intended services to be provided by the individual subject to this rule." While Bosecker admitted that no such notice was provided to the Bar, it appears that the hiring entity is responsible for providing the notice and therefore, Bosecker is not in violation Bar Rule 3-6.1(c) under these circumstances.

However, Bar Rule 3-6.1(d)(1) prohibits suspended or former lawyers employed by attorneys from having direct contact with any client. In this case, the referee found numerous instances in which Bosecker had violated that rule.

Bar Rule 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). As previously indicated, Bosecker engaged in misrepresentation when she advised the Court on June 13, 2016, that she had notified all of her clients, opposing counsel, and the courts of her suspension. Bosecker was also dishonest in failing to promptly notify her clients, opposing counsel, and the courts of her suspension. Although Bosecker argues that she was merely mistaken and did not have the intent to deceive, her actions demonstrate otherwise.

Based upon the foregoing, we approve the referee's findings of fact and recommendations as to guilt pertaining to the violations of Bar Rules 3-5.1(e), 3-5.1(h), 3-6.1(d)(1), and 4-8.4(c). However, we disapprove the referee's recommendation that Bosecker violated Bar Rule 3-6.1(c).

Admissibility of Evidence

With regard to the admissibility of evidence in a Bar proceeding, "a referee has wide latitude to admit or exclude evidence." Tobkin , 944 So.2d at 224. Because Bar disciplinary proceedings are neither civil nor criminal, but are quasi-judicial, the rules of evidence are not binding upon the referee. Fla. Bar v. Shankman , 41 So.3d 166, 169 (Fla. 2010). Furthermore, a referee may consider any evidence that is deemed relevant in determining a factual question. Fla. Bar v. Fredericks , 731 So.2d 1249, 1251 (Fla. 1999). In addition, a referee's decision regarding the admissibility of evidence will only be disturbed on review upon an abuse of discretion. Fla. Bar v. D'Ambrosio , 25 So.3d 1209, 1215 (Fla. 2009).

Bosecker argues that before the referee, the Bar improperly presented evidence and testimony from attorney Julie Anthousis pertaining to "the Mealy and Betty Reed loan modification," and that the referee should not have heard or considered the claim because it was not included in the Bar's petition. Bosecker further contends that the referee should have granted her request to submit evidence in response to the Bar's allegations.

In response, the Bar argues that the referee properly considered "uncharged conduct ... that was within the scope of the specific allegations in the Bar's Petition." The Bar explains that it filed its Final Witness List disclosing Ms. Anthousis as a witness in the case, and filed its Final Exhibit List showing several documents related to Wells Fargo Bank v. Reed as exhibits. Counsel for Bosecker objected to the introduction of the exhibit as outside the scope of the pleadings. The referee overruled Bosecker's objection, following argument by the Bar that the evidence was relevant to the guilt phase and was within the scope of the Bar's allegations of misconduct.

Here, the referee did not abuse her discretion in admitting the testimony and evidence relating to Bosecker's actions with regard to the Reed case. Rather, the evidence was relevant because the Bar was seeking contempt and disbarment based upon Bosecker's misconduct in practicing law while under suspension, and the Reed case was one more instance of such misconduct. Moreover, the referee properly excluded Bosecker's evidence in response, on the basis that she sought to submit evidence at the end of the hearing that had not previously been disclosed to the Bar.

Bosecker also argues that the referee erred in denying her motion to reopen evidence to admit additional client letters. Without further argument or proof, Bosecker contends that the referee was biased against her. The facts underlying this claim are as follows. The Case Management Order in this case, entered on January 3, 2017, indicated that April 7, 2017, was the deadline for the disclosure of witnesses and exhibits. Bosecker received the additional mitigation letters after the April 27-28, 2017, final hearing. Because the parties had been put on notice of the date by which evidence or witnesses had to be disclosed, Bosecker did not comply with the Case Management Order, and she did not seek to introduce the two mitigation letters before the close of the evidence, we conclude that the referee did not abuse her discretion in not admitting the additional mitigating evidence.

Discipline

In reviewing a referee's recommended discipline, this Court's scope of review is broader than that afforded to the referee's findings of fact because, ultimately, it is the Court's responsibility to order the appropriate sanction. See Fla. Bar v. Anderson , 538 So.2d 852, 854 (Fla. 1989) ; see also art. V, § 15, Fla. Const. However, generally speaking this Court will not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer , 753 So.2d 555, 558 (Fla. 1999). In addition, the Court views cumulative misconduct more seriously than an isolated instance of misconduct, and cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct. Fla. Bar v. Walkden , 950 So.2d 407, 410 (Fla. 2007). Moreover, in imposing a sanction, the Court considers the following factors: "a) the duty violated; b) the lawyer's mental state; c) the potential or actual injury caused by the lawyer's misconduct; and d) the existence of aggravating and mitigating factors." Fla. Stds. Imposing Law. Sancs. 3.0.

Here, the referee found the following Standards applied: 3.0 (Generally); 4.61 ("Disbarment is appropriate when a lawyer knowingly or intentionally deceives a client with the intent to benefit the lawyer or another regardless of injury or potential injury to the client."); 6.11 ("Disbarment is appropriate when a lawyer: (a) with the intent to deceive the court, knowingly makes a false statement or submits a false document; or, (b) improperly withholds material information, and causes serious or potentially serious injury to a party or causes a significant or potentially significant adverse effect on the legal proceeding."); 7.1 ("Disbarment is appropriate when a lawyer intentionally engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system."); and 8.1 ("Disbarment is appropriate when a lawyer: (a) intentionally violates the terms of a prior disciplinary order and such violation causes injury to a client, the public, the legal system, or the profession; or (b) has been suspended for the same or similar misconduct, and intentionally engages in further similar acts of misconduct."). While Bosecker argues that these standards should not apply, her argument is based solely upon her own interpretation of the facts from her own testimony, and contrary to the referee's findings.

Next, the referee found under Standard 9.22 the following factors in aggravation: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (d) multiple offenses; (g) refusal to acknowledge wrongful nature of conduct; and (i) substantial experience in the practice of law. "A referee's findings in aggravation carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record." Fla. Bar v. Ticktin , 14 So.3d 928, 937 (Fla. 2009). Bosecker has not made this showing. Instead, she argues her position with regard to the aggravating factors, and ignores the facts as found by the referee. "Because the referee is in the best position to judge the credibility of the witnesses, we defer to the referee's assessment." Fla. Bar v. Forrester , 916 So.2d 647, 652 (Fla. 2005). The evidence before the referee readily supports her findings in aggravation. In addition, the referee found that the mitigating circumstances under Standard 9.32 that Bosecker argued for did not exist. "A referee's decision not to find that a mitigating or aggravating factor applies also carries a presumption of correctness and will not be disturbed unless clearly erroneous or without support in the record." Fla. Bar v. Varner , 992 So.2d 224, 230 (Fla. 2008). Here, Bosecker argues that the referee erroneously failed to find Standards 9.32(e) (full and free disclosure to disciplinary board or cooperative attitude toward proceedings), 9.32(g) (character or reputation) and 9.32(l) (remorse). However, "[t]he fact that there is some evidence in the record to support a finding that a mitigating factor might apply does not mean that the referee should have necessarily found it applicable." Fla. Bar v. Herman , 8 So.3d 1100, 1106 (Fla. 2009).

Finally, the referee cited and discussed numerous cases in support of her recommendation of disbarment. For example, the referee cited Florida Bar v. Brown , 635 So.2d 13, 13-14 (Fla. 1994), for the proposition that the presumptive penalty for a violation of a prior disciplinary order is disbarment, absent strong extenuating circumstances. In addition, Florida Bar v. Bern , 425 So.2d 526, 528 (Fla. 1982), provides in pertinent part that "[i]n rendering discipline, this Court considers the respondent's previous disciplinary history and increases the discipline where appropriate." Here, Bosecker was found to have practiced law while under suspension. Cases relied upon and supporting disbarment for such misconduct include Florida Bar v. Norkin , 183 So.3d 1018 (Fla. 2015) ; Florida Bar v. Lobasz , 64 So.3d 1167, 1173 (Fla. 2011) ; D'Ambrosio , 25 So.3d at 1220 ; and Florida Bar v. Greene , 589 So.2d 281, 282-83 (Fla. 1991). Additional cases supporting disbarment for continuing to practice law while under suspension include Forrester , 916 So.2d at 654-55, and The Florida Bar v. Rood , 678 So.2d 1277, 1278 (Fla. 1996).

Lastly, Bosecker argues that "[t]he rules treat suspended attorneys that are working as a legal assistant differently than individuals who are not lawyers and working as legal assistants," and that as a result, her equal protection rights were violated. The Bar disagrees, pointing out that Bosecker is not a nonlawyer, and as such, is subject to the Bar Rules. One such prohibition is that a suspended attorney shall not engage in direct client contact with clients. Bosecker violated that prohibition.

Contrary to Bosecker's belief, there is no constitutional right to practice law; rather, it is a privilege to which the Court has exclusive jurisdiction under the Florida Constitution to oversee. Based upon this Court's exclusive jurisdiction, we have "the inherent power and duty to prescribe standards of conduct for lawyers, to determine what constitutes grounds for discipline of lawyers, to discipline for cause attorneys admitted to practice law in Florida, and to revoke the license of every lawyer whose unfitness to practice law has been duly established." R. Regulating the Fla. Bar 3-1.2. Having violated the Bar Rules 3-5.1(e), 3-5.1(h), and 4-8.4(c) -i.e, having failed to provide notice to her clients and the courts where she had cases pending that she was under suspension, being in direct contact with clients and judicial staff on behalf of her clients pertaining to those cases, holding herself out to be authorized to practice law, and then continuing to act on behalf of her clients without acknowledging that she was no longer so authorized to act-Bosecker can hardly claim that she acted only as any paralegal or legal assistant would do. Based upon the foregoing, we approve of the referee's report in part on the issue of guilt and approve the referee's report on the issue of discipline.

CONCLUSION

Accordingly, Kelley Andrea Bosecker is hereby disbarred from the practice of law in the State of Florida. Because Bosecker is currently under suspension, the disbarment is effective immediately. Bosecker shall fully comply with Rule Regulating the Florida Bar 3-5.1(h).

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Kelley Andrea Bosecker, in the amount of $3,841.03, for which sum let execution issue.

It is so ordered.

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

      While the Report of Referee makes reference to Bar Rule 3-6.1(c) and to the fact that Bosecker was employed during her suspension without complying with the requirements of Bar Rule 3-6.1, the referee also concluded that Bosecker violated the rule "by having direct client contact while suspended." Accordingly, it appears that the referee also intended to reference Bar Rule 3-6.1(d)(1) (Prohibited Conduct; Direct Client Conduct).

      As observed previously, the referee's findings of guilt as to Bar Rule 3-6.1 appear to pertain to both subdivisions (c) and (d)(1).

      The cases discussed by the referee include the following misconduct (record citations omitted):
      [1] In U.S. Bank v. Rucker , where Respondent represented Emanuel Rucker. Respondent admitted that on June 30, 2016, she sent an email to opposing counsel, Ms. Whiting-Bozich and Mr. Flicker, stating that Respondent had been in contact with Mr. Rucker and that they were compiling information in the case. In the same email, Respondent asked if opposing counsel would be agreeable to extending a discovery deadline and in granting an extension for filing a counterclaim. Respondent copied her client, Mr. Rucker, on the email. The testimony and evidence showed that Respondent was not supervised by an attorney on this case and another attorney did not direct her to email opposing counsel....
      [2] In Bank of New York Mellon v. Hodge , Respondent represented Lloyd and Karin Hodge. Respondent testified that she may have drafted and provided the Emergency Motion to Stay Application for Writ of Possession in the client's Second District Court of Appeal case to her clients prior to her suspension. The clients filed the motion pro se on June 1, 2016. By order dated June 2, 2016, the Second D.C.A. denied the motion. The order stated that, "[t]he appellants should be aware...that any future pro se filings in this court will be subject to being stricken without further notice to the extent that the appellants remained represented by counsel." Respondent was served with the court's June 2, 2016, order as she was still counsel of record, and she failed to timely notify the court of her suspension....
      Respondent admitted that on June 7, 2016, she sent an email to Chanelle L. Gardner, Judicial Assistant to the Honorable Thomas H. Minkoff, stating that Mr. and Mrs. Hodge were requesting that the judge consider the motion for stay of the writ entered by the judge on June 1, 2016, and requesting information regarding what the clients needed to do to get the judge to make a determination on the motion the clients filed pro se . Respondent copied her clients and opposing counsel on the email. Respondent did not indicate in the email that she was suspended from the practice of law, or that she was not emailing the court as an attorney. By sending an email to the judicial assistant requesting information in the client's case, Respondent provided a service to her client during her suspension. By copying her clients on the email, Respondent had prohibited contact with her clients during her suspension.
      ... Furthermore, and glaringly significant, Respondent's email failed to indicate she was contacting the court on behalf of another attorney....
      [3] In JP Morgan Chase Bank v. Investor Trustee Services , Respondent represented Investor Trustee Services. Respondent admitted that on or about the morning of June 14, 2016, Respondent left a voicemail message and sent an email to Linda Holm, Judicial Assistant to the Honorable Sandra Champ, indicating that the defendant would be filing a motion to cancel a foreclosure sale set for June 22, 2016, based on a pending motion for rehearing, and also requesting information and hearing times in the matter....
      ....
      [4] In DeParedes v. Green Tree Servicing , Respondent represented Erika and Eduardo DeParedes. Respondent admitted that she engaged in two instances of direct contact with her client, Erica DeParedes, during the suspension period. On or about June 9, 2016, Respondent was served with the Appellee's Answer Brief as Respondent was counsel of record in the case, and failed to timely inform opposing counsel, Kimberly Hopkins, or the court of Respondent's suspension. Respondent admitted that she contacted Ms. DeParedes on or about June 9, 2016, to advise that she had received service of the Appellee's Answer Brief, that a Reply Brief needed to be filed, and was due in 20 days....
      On June 16, 2016, Respondent emailed opposing counsel, Ms. Hopkins, and asked if she would consent to an extension until July 28 for the filing of a reply brief in the case. Respondent copied her client, Ms. DeParedes, on the email....
      ....
      [5] In Investor Trustee Services, LLC v. PNC Bank Nat'l Ass'n, Respondent admitted that on June 23, 2016, during the period of Respondent's suspension, she sent an email to opposing counsel, Kimberly Hopkins, stating that Respondent was contacting Ms. Hopkins on behalf of attorney Andrea Roebuck who was retained and would be filing a notice of appearance in the case. Respondent's June 23, 2016, email asked Ms. Hopkins if she would agree to Ms. Roebuck filing a motion for reinstatement of the case. The docket shows that Ms. Roebuck filed a notice of appearance and motion for reinstatement on June 23, 2016, which was denied on July 7, 2016. In fact, the docket shows that nothing further happened in the appeal until Respondent filed a notice of appearance on July 21, 2016, which only provides service to opposing counsel. Ms. Roebuck's appearance and filing of the motion for reinstatement were merely placeholders until Respondent's suspension ended.
      [6] In Wells Fargo Bank v. Reed , Respondent represented Mealy and Betty Jo Reed. In this case, Respondent inappropriately contacted opposing counsel, Ms. Anthousis, and engaged in the practice of law during the period of her suspension by providing legal services to her clients including representing the clients' interests in getting a loan modification, and providing legal advice regarding what the clients needed to do to finalize their loan modification. On June 2, 2016, Respondent sent an email to opposing counsel regarding Mr. Reed providing proof of delivery of his April payment to Wells Fargo, but that the payment had not been cashed. Respondent copied her client on the June 2, 2016, email. On June 13, 2016, Respondent sent an email to opposing counsel stating that the Reeds were never provided a permanent modification agreement by the lender to sign, and that Respondent and the client had been requesting the agreement for some time. Respondent copied her client on the June 13, 2016, email. On June 15, 2016, opposing counsel's assistant sent Respondent loan modification documents for the borrower to sign. Respondent thanked opposing counsel's assistant by email also on June 15, 2016. The client was copied on both emails. Ms. Anthousis testified that she believed Respondent was representing the Reeds during this time.


source: Caselaw Access Project

author: LABARGA, J. PARIENTE, J., dissenting.

license: Public Domain

text:
    Adam Lloyd SHEPARD, Petitioner, v. STATE of Florida, Respondent.
    No. SC17-1952
    Supreme Court of Florida.
    November 1, 2018
    Wm. J. Sheppard, Elizabeth L. White, Matthew R. Kachergus, Bryan E. DeMaggio, Jesse B. Wilkison, and Camille E. Sheppard of Sheppard, White, Kachergus & DeMaggio, P.A., Jacksonville, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Trisha M. Pate and Kaitlin R. Weiss, Assistant Attorneys General, Tallahassee, Florida, for Respondent
   LABARGA, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Shepard v. State , 227 So.3d 746 (Fla. 1st DCA 2017), which certified conflict with the decision of the Second District Court of Appeal in Gonzalez v. State , 197 So.3d 84 (Fla. 2d DCA 2016), on the issue of whether an automobile can be considered a "weapon" for purposes of enhancing a defendant's sentence to a higher degree under Florida's reclassification statute, section 775.087(1), Florida Statutes (2011). The First District's decision also expressly and directly conflicts with this Court's decision in State v. Houck , 652 So.2d 359 (Fla. 1995). We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const. For the reasons explained below, we approve the conclusion of the First District that an automobile can be a weapon for purposes of the reclassification statute and disapprove of Gonzalez to the extent it holds otherwise.

FACTS AND PROCEDURAL HISTORY

Adam Lloyd Shepard was convicted of (1) manslaughter with a weapon, where the weapon supporting the charge was an automobile, and (2) leaving the scene of a crash involving death. Shepard , 227 So.3d at 747. The district court described the relevant facts:

On January 22, 2011, Appellant was drinking and watching a basketball game at a bar with the victim. Appellant and the victim got into a tussle at the bar, after which Appellant was escorted out of the bar by staff. The victim, who was still at the bar, began receiving phone calls from Appellant and ultimately the victim answered one phone call before leaving the bar.
A witness at trial, who had been at the bar that evening and had been invited by the victim to his apartment to meet his girlfriend, testified that she saw a white vehicle (later confirmed to be Appellant's) parked in the rear of a shopping center across the street from the entrance of the victim's apartment complex. The witness said that the white car flashed its lights. The victim pulled into the parking lot, exited his car, and rushed toward the white automobile while pulling off his jacket. The white automobile advanced towards the victim and struck him. Appellant left the parking lot and was apprehended two weeks later in Chicago. The victim sustained head injuries and ultimately succumbed to those injuries the following day.
A jury found Appellant guilty of one count of manslaughter with a weapon and one count of leaving the scene of a crash involving a death.... Appellant was sentenced to thirty years on the manslaughter count and fifteen years on the leaving the scene of a crash count.

Id. at 747-48.

On appeal, Shepard argued that the trial court improperly allowed his manslaughter conviction to be reclassified from a second-degree felony to a first-degree felony pursuant to section 775.087(1) for using a weapon, where the "weapon" was an automobile. The district court disagreed and held that "an automobile, when used in the manner [Shepard] used it, constitutes a weapon in the common and ordinary meaning of the word." Id. at 748. The district court relied in part upon the definition of "weapon" adopted by this Court in Houck : "[1.] [a]n instrument of attack or defense in combat, as a gun or sword ... [or] [2.] [a] means used to defend against or defeat another." Id. (quoting Houck , 652 So.2d at 360 ) (some alterations in original). The district court concluded "an automobile falls within the second definition of a weapon as a 'means used to defend against or defeat another.' " Id. The district court certified conflict with the decision of the Second District in Gonzalez , which held an automobile may not be considered a weapon under section 775.087(1), because it is not commonly understood to be an instrument for combat. Id.

This review follows.

ANALYSIS

Standard of Review

The question before the Court is whether an automobile may be considered a "weapon" under section 775.087(1), Florida Statutes (2011), which reclassifies a felony to a higher degree when the defendant "carries, displays, uses, threatens to use, or attempts to use any weapon or firearm" during the commission of the felony. The standard of review is de novo. See Williams v. State , 186 So.3d 989, 991 (Fla. 2016) ("Judicial interpretations of statutes are pure questions of law subject to de novo review." (quoting Johnson v. State , 78 So.3d 1305, 1310 (Fla. 2012) ) ). Where the plain language of a statute is unambiguous and conveys a clear meaning, the statute must be given its obvious meaning. Id. Further, when construing a statute, our "task is to ascertain the meaning of the phrases and words used in a provision, not to substitute [the Court's] judgment for that of the Legislature." Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc. , 3 So.3d 1220, 1228 (Fla. 2009).

Defining "Weapon"

Florida's reclassification statute provides:

Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree.

§ 775.087(1), Fla. Stat. (emphasis added). The statute does not define "weapon." However, this Court defined the term in Houck , where the defendant was convicted of manslaughter with a weapon after repeatedly beating the victim's head against pavement. 652 So.2d at 359. The defendant's conviction was reclassified from a second-degree felony to a first-degree felony under section 775.087(1) based on the use of the pavement as a weapon. Id. On review, this Court concluded that pavement does not qualify as a weapon for purposes of the reclassification statute. Id. at 360.

In reaching its decision, the Court first determined that whether an object is a weapon is "a question for the court to determine as a matter of law," reasoning:

The failure of the statute to broadly define the term "weapon" cannot be cured by jury speculation. As Houck contends, the panel opinion [upholding the defendant's conviction] would open a veritable "Pandora's Box" and allow a creative prosecutor, in conjunction with the jury, to turn almost any intentional injury into one caused by a weapon. For example, would the ground be transformed into a weapon merely because it was the point of impact for a person pushed from a cliff or high building? Would the water become a weapon if the victim was pushed overboard from an ocean liner?

Id. (quoting Houck v. State , 634 So.2d 180, 182 (Fla. 5th DCA 1994) ). This Court then determined that "the obvious legislative intent reflected by section 775.087 is to provide harsher punishment for, and hopefully deter, those persons who use instruments commonly recognized as having the purpose to inflict death and serious bodily injury upon other persons." 652 So.2d at 360 (quoting Houck , 634 So.2d at 184 ). To give effect to this intent, the Court defined "weapon" as an "instrument of attack or defense in combat," and concluded that pavement is not a weapon because it is "not commonly understood to be an instrument for combat." Id. In other words, Houck held that under section 775.087(1), the term "weapon" includes only those instruments commonly recognized as weapons.

However, the narrow definition of "weapon" announced in Houck is contrary to the usual meaning of the word. It is well established that "where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense." State v. Brake , 796 So.2d 522, 528 (Fla. 2001) (citing State v. Mitro , 700 So.2d 643, 645 (Fla. 1997) ). Accordingly, where the Court is tasked with construing a statute, "our first (and often only) step ... is to ask what the Legislature actually said in the statute, based upon the common meaning of the words used." Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 313 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part) (citation omitted) (citing Brake , 796 So.2d at 528 ). Here, the plain and ordinary meaning of the word "weapon" includes not only those objects designed with the purpose of injuring or killing another, such as guns, clubs, or swords, but also any object used with the intent to cause harm. This is evident in dictionary definitions, which consistently define "weapon" to include objects used as weapons, even if they were not designed for that purpose. For example, Black's Law Dictionary defines "weapon" as "[a]n instrument used or designed to be used to injure or kill someone." Black's Law Dictionary 1827 (10th ed. 2014) (emphasis added). Webster's Third New International Dictionary explains that the word "weapon" can apply "to anything used or usable in injuring, destroying, or defeating an enemy or opponent." Webster's Third New International Dictionary 2589 (1993) (emphasis added). Even the dictionary cited by Houck defined "weapon" as including "[a] means used to defend against or defeat another." 652 So.2d at 360 (quoting American Heritage College Dictionary 1529 (3d ed. 1993) ).

These definitions are consistent with the way the Court has historically defined "weapon." As early as 1884, this Court recognized that any object can be a weapon if it is used as one. See Blige v. State , 20 Fla. 742, 751 (1884) (concluding an iron weight may constitute a deadly weapon based on the way it is used, and explaining "[a] weapon may be deadly although not especially designated for offensive and defensive purposes, or the destruction of life, or the infliction of injury" (internal quotation marks omitted) ). In 1926, this Court defined "weapon" as "[a]n instrument of offensive or defensive combat; something to fight with; anything used or designed to be used in destroying, defeating, or injuring an enemy, as a gun, a sword, a shield, etc." Williamson v. State , 92 Fla. 980, 111 So. 124, 125 (1926) (quoting Webster's New International Dictionary (1910) ). Based on this definition, the Court concluded that, "[a]s an automobile is a thing which may be used in destroying or injuring an enemy, it would come within the dictionary definition of a weapon, although it was not designed or constructed for that purpose." Id. at 125. Even after the 1995 decision in Houck , we have explained that "weapon" includes objects used as weapons, even if not designed for such a purpose. See Dale v. State , 703 So.2d 1045, 1046-47 (Fla. 1997) (holding that the standard jury instruction defining weapon as "any object that could be used to cause death or inflict serious bodily harm" was "a correct statement of law" (emphasis added) (quoting Fla. Std. Jury Instr. (Crim.) 156(a) (1981) ) ).

Further, this Court has repeatedly used the word "weapon" to describe ordinary objects that were used as weapons. See, e.g. , Guardado v. State , 965 So.2d 108, 111 (Fla. 2007) (kitchen knife and breaker bar); Buzia v. State , 926 So.2d 1203, 1207 (Fla. 2006) (ax); Nelson v. State , 850 So.2d 514 (Fla. 2003) (the contents of a fire extinguisher and a tire iron); Sireci v. Moore , 825 So.2d 882, 886 (Fla. 2002) (tire iron); Lawrence v. State , 698 So.2d 1219, 1221 (Fla. 1997) (metal pipe, baseball bat, and mop); Craig v. State , 168 So.2d 747, 748 (Fla. 1964) (screwdriver); Nelson v. State , 97 So.2d 250, 251 (Fla. 1957) (ice pick); Brown v. State , 61 So.2d 640, 641 (Fla. 1952) (hammer); Brooks v. State , 115 Fla. 243, 156 So. 23, 23 (1934) (sticks and clubs); Gray v. State , 44 Fla. 436, 33 So. 295 (1902) (a "large piece of scantling").

Accordingly, we recede from the holding in Houck that an object must be "commonly understood to be an instrument for combat" in order to constitute a weapon under section 775.087(1), and conclude that any object used or intended to be used to inflict harm on another constitutes a weapon within the meaning of the statute. We also recede from our statement in Houck that "it is for the court to determine whether what is used in the commission of a felony is a weapon within the meaning of the statute." Houck , 652 So.2d at 360. Rather, whether an object is being used as a weapon during the commission of a felony would typically be a question of fact for the jury. Cf. Miller v. State , 918 So.2d 415, 417 (Fla. 2d DCA 2006) ("[W]hether a motor vehicle is used or threatened to be used in a way that makes it a deadly weapon is typically a question resolved by a jury." (citing Williamson , 111 So. at 126 ) ).

In receding from the reasoning of Houck on these points, "we are mindful of the importance of the doctrine of stare decisis ." State v. Gray , 654 So.2d 552, 554 (Fla. 1995).

Stare decisis provides stability to the law and to the society governed by that law. Yet stare decisis does not command blind allegiance to precedent. "Perpetrating an error in legal thinking under the guise of stare decisis serves no one well and only undermines the integrity and credibility of the court."

Id. (citation omitted) (quoting Smith v. Dep't of Ins. , 507 So.2d 1080, 1096 (Fla. 1987) (Ehrlich, J., concurring in part, dissenting in part) ).

CONCLUSION

In conclusion, we hold that an automobile is a weapon under section 775.087(1) if it is used to inflict harm on another. Further, it is a question of fact for the jury to determine whether an automobile or other object was used as a weapon by the defendant. Accordingly, we approve the conclusion of the First District that an automobile can be a weapon for purposes of the reclassification statute and disapprove of Gonzalez to the extent it holds otherwise.

It is so ordered.

CANADY, C.J., and LEWIS, QUINCE, POLSTON, and LAWSON, JJ., concur. PARIENTE, J., dissents with an opinion.

PARIENTE, J., dissenting.

I dissent for two reasons. First, I dissent because the majority is receding from this Court's longstanding precedent in State v. Houck , 652 So.2d 359 (Fla. 1995), regarding the definition of "weapon" for purposes of the reclassification statute when that task should be left to the Legislature. Second, I dissent because in receding from Houck , the majority does not apply a clear and consistent definition of "weapon," which, for purposes of the reclassification statute, should include an "intent" element.

Construing the term "weapon" narrowly, and in favor of the accused, I would conclude that there should be an explicit finding that the defendant intended to use the object to inflict harm before a felony can be reclassified. Failure to construe the term in this manner will lead to reclassification to a higher degree of felony in any and every situation where any object is used to inflict harm on another.

While this may not be what the majority intended, the majority's opinion inconsistently defines what constitutes a "weapon" under the reclassification statute. First, the majority states that a "weapon" includes "any object used with the intent to cause harm." Majority op. at 705. In keeping with this definition, the majority concludes that a "weapon" as that term is used in the reclassification statute is "any object used or intended to be used to inflict harm on another." Majority op. at 706. The majority then concludes by stating that if the object "is used to inflict harm on another," the felony offense is subject to reclassification and that this finding should be made by the jury. Majority op. at 706-07. However, if there is no requirement of intent, then the jury is essentially not making any additional finding than what is required for involuntary manslaughter.

It is this all-encompassing definition of "weapon" that would subject a defendant who uses any object to inflict harm on a person during the commission of a felony to a higher penalty under the reclassification statute, without any factual finding that the defendant intended to use the object to inflict harm. In other words, every felony involving harm to another through the means of some object, no matter how innocuous, would be subject to reclassification regardless of the defendant's state of mind. I strongly disagree with this overly broad interpretation of the reclassification statute, which divorces the statute from the Legislature's intended purpose.

Even if I agreed with the majority that our opinion in Houck warrants reconsideration, I would utilize well-established principles of statutory construction, such as ejusdem generis , in pari materia , and the rule of lenity, in conjunction with dictionary definitions, to conclude that a finding of intent to inflict harm should be required before a felony can be reclassified. By receding from Houck and adopting an all-encompassing definition of the word "weapon," the majority today is subjecting virtually any person who uses an object-including an automobile-to harm another, whether intentionally or not, to automatic reclassification, upon conviction of a felony, and a more severe penalty than the one deemed appropriate by the Legislature under section 775.082, Florida Statutes (2018).

Indeed, in this case, without any finding by the jury that Shepard intended to use the automobile to inflict harm, Shepard's manslaughter conviction was reclassified from a second-degree felony, which carries a maximum sentence of fifteen years' imprisonment, to a first-degree felony, which carries a maximum sentence of thirty years' imprisonment. Shepard ultimately received the maximum sentence for the reclassified crime. Because Shepard's manslaughter conviction was reclassified without any finding that he intended to use the automobile to inflict harm, I would quash the decision of the First District Court of Appeal and require a retrial on the limited issue of intent.

FACTS

Shepard was charged with first-degree murder, but the jury convicted him of the lesser-included offense of manslaughter with a weapon. The verdict form did not specify between voluntary or involuntary manslaughter. As a result, we are unable to conclude whether the jury found that the victim's death was the result of a voluntary act or culpable negligence. See Pethtel v. State , 177 So.3d 631, 634 (Fla. 2d DCA 2015) (explaining that these "two categories of manslaughter differ markedly with respect to criminal intent"). The crime of manslaughter, by voluntary act or culpable negligence, is a second-degree felony, which carries a maximum sentence of fifteen years' imprisonment. § 782.07, Fla. Stat. (2018) ; see § 775.082(3)(d), Fla. Stat. (2018).

The instructions given to the jury defined "weapon" as "any object that could be used to cause death or inflict serious bodily harm." Guided by this definition, which essentially directed the verdict in this case, the jury found that Shepard used a weapon, to wit, an automobile. Accordingly, Shepard's felony was reclassified to a first-degree felony. See majority op. at 703-04. Shepard was sentenced to the maximum sentence of thirty years' imprisonment, without any finding that he intended to use the automobile to kill the victim.

ANALYSIS

Florida's reclassification statute enhances the degree of a felony and, consequently, the length of the potential sentence when the defendant "carries, displays, uses, threatens to use, or attempts to use any weapon or firearm" during the commission of the felony. § 775.087(1), Fla. Stat. (2011). The purpose of the statute is to discourage a defendant from using "weapons" or "firearms" in the course of a felony-not to cover the entire universe of methods in which a felony can be committed.

As the majority observes, the reclassification statute does not define "weapon." See majority op. at 704-05. Thus, the issue before the Court today is one of statutory construction.

Houck

In 1995, when presented with the same exact issue we are presented with today-construing the term "weapon" as used in the reclassification statute-this Court engaged in the necessary statutory construction analysis. Houck , 652 So.2d at 360. This Court first concluded that "to determine whether what is used in the commission of a felony is a weapon within the meaning of the statute ... the trial court must use the common or ordinary meaning of the word." Id. We then explained that the dictionary defined "weapon" as "[a]n instrument of attack or defense in combat, as a gun or sword" and "[a] means used to defend against or defeat another." Id. (quoting American Heritage College Dictionary 1529 (3d ed. 1993) ). Applying that definition to the object at issue in that case, this Court concluded that "[a] paved surface is not commonly understood to be an instrument for combat against another person." Id.

Significant to this Court's construction of the term "weapon" in Houck was the purpose of the reclassification statute. This Court quoted with approval the reasoning of the district court that "[t]he obvious legislative intent reflected by section 775.087 is to provide harsher punishment for, and hopefully deter, those persons who use instruments commonly recognized as having the purpose to inflict death and serious bodily injury upon other persons." Id. (emphasis supplied) (quoting Houck v. State , 634 So.2d 180, 184 (Fla. 5th DCA 1994) ).

This Court even went so far as to invite the Legislature to amend the reclassification statute if it disagreed with this Court's construction of the statute, stating that "if the word 'weapon' is to be given a meaning other than the common dictionary definition set forth in" Houck , "it is within the province of the legislature to provide that definition." Id. Significantly, to this day, the Legislature has chosen not to define the word "weapon" in the statute, and has not otherwise made any amendments to that part of the statute. See Jones v. ETS of New Orleans, Inc. , 793 So.2d 912, 917 (Fla. 2001) ("[T]he legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in [a] new version." (quoting City of Hollywood v. Lombardi , 770 So.2d 1196, 1202 (Fla. 2000) ) ).

Because the Legislature has never amended the statute as to the meaning of "weapon" after this Court's decision in Houck , I would continue to adhere to that decision. However, because the majority concludes that this Court's construction of the word in Houck was "contrary to the usual meaning of the word," majority op. at 705, I turn to conduct the necessary statutory construction analysis.

Statutory Construction

"A court's purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction." Larimore v. State , 2 So.3d 101, 106 (Fla. 2008). "Where the Legislature does not define the words used in a statute, this Court first examines the plain language of the statute ...." Paul v. State , 129 So.3d 1058, 1064 (Fla. 2013). "In ascertaining the plain meaning of statutory language, consulting dictionary definitions is appropriate." State v. Weeks , 202 So.3d 1, 7 (Fla. 2016).

The majority concludes that "the plain and ordinary meaning of the word 'weapon' includes not only those objects designed with the purpose of injuring or killing another, such as guns, clubs, or swords, but also any object used with the intent to cause harm." Majority op. at 705 (emphasis added). In reaching this conclusion, the majority asserts that this is "evident in dictionary definitions," Id. , such as Black's Law Dictionary , which defines "weapon" as "[a]n instrument used or designed to be used" to inflict harm. Black's Law Dictionary 1827 (10th ed. 2014) (emphasis added). In citing the definition from Black's Law Dictionary , however, the majority glosses over the fact that the dictionary included an alternative definition with the use of "or." That the dictionary provides multiple definitions creates ambiguity as to which meaning the Legislature intended to employ-instruments that are "used" to inflict harm or instruments that are "designed to be used" to inflict harm.

Further, when this Court determined the definition of "weapon" in Houck , we relied on another commonly used definition as set forth in the American Heritage College Dictionary -"[a]n instrument of attack or defense in combat, as a gun or sword " or "[a] means used to defend against or defeat another." American Heritage College Dictionary (4th ed. 2000) (emphasis added); see 652 So.2d at 360. Thus, because dictionary definitions "are unavailing in ascertaining legislative intent," this Court should "look to other canons of statutory construction to derive legislative intent," particularly where, as here, the Legislature has not amended the reclassification statute since this Court's decision in Houck more than twenty years ago. Weeks , 202 So.3d at 7-8.

One such canon is ejusdem generis , "which states that when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type as those listed." State v. Hearns , 961 So.2d 211, 219 (Fla. 2007). "A related canon of statutory construction is noscitur a sociis , which instructs that 'a word is known by the company it keeps.' " Weeks , 202 So.3d at 8 (quoting Nehme v. Smithkline Beecham Clinical Labs., Inc. , 863 So.2d 201, 205 (Fla. 2003) ). In the reclassification statute, the Legislature chose to use the phrase "any weapon or firearm." § 775.087(1). While that does not mean that the Legislature intended to include only firearms, the fact that it listed specifically firearms as an alternative certainly suggests that the Legislature intended to narrowly define the term "weapon."

Another important canon of statutory construction instructs that "statutes which relate to the same or closely related subjects should be read in pari materia." State v. Fuchs , 769 So.2d 1006, 1009 (Fla. 2000). Relevant here, section 790.001(13), Florida Statutes (2017), which is the only section in Florida Statutes that defines "weapon," defines the term as "any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife." While this list is non-exhaustive, it clearly denotes objects that are "commonly understood to be ... instrument[s] for combat against another person." Houck , 652 So.2d at 360.

Finally, and significantly, because the majority acknowledges that the meaning of "weapon" can be as narrow as an object that is "designed with the purpose of injuring or killing another," or as broad as "any object used with the intent to cause harm," the rule of lenity should be applied. Majority op. at 705. The rule of lenity instructs that when statutory language "is susceptible of different constructions, it shall be construed most favorably to the accused." § 775.021(1), Fla. Stat. (2017) ; see also Paul , 129 So.3d at 1064 (explaining that where "definiteness is lacking, a statute must be construed in the manner most favorable to the accused." (quoting Perkins v. State , 576 So.2d 1310, 1312 (Fla. 1991) ) ). In Florida, the rule of lenity is "not just an interpretative tool, but a statutory directive." Weeks , 202 So.3d at 8 (quoting Kasischke v. State , 991 So.2d 803, 814 (Fla. 2008) ).

Consideration of these canons of statutory construction, alongside the stated purpose of the reclassification statute and the fact that the reclassification statute has not been amended since Houck , compels the conclusion that the Legislature intended a narrower definition of "weapon" than the one adopted by the majority today. Instead of considering the statutory definition of "weapon" and relevant canons of statutory construction to discern the Legislature's intent, the majority cites a number of cases from this Court to support its determination "that any object can be a weapon if it is used as one." Majority op. at 706. However, none of these cases offers the support the majority asserts they do. First, many of the cases cited by the majority predate this Court's decision in Houck . And, of those that do not predate Houck , none involves defining the term "weapon" for purposes of the reclassification statute. See Guardado v. State , 965 So.2d 108, 117 (Fla. 2007) ; Buzia v. State , 926 So.2d 1203, 1215-16 (Fla. 2006) ; Nelson v. State , 850 So.2d 514, 527-28 (Fla. 2003) ; Sireci v. Moore , 825 So.2d 882, 886 (Fla. 2002) ; Lawrence v. State , 698 So.2d 1219, 1221 (Fla. 1997) ; Dale v. State , 703 So.2d 1045, 1046-47 (Fla. 1997).

In Buzia , Nelson , Sireci , and Lawrence , the issue was whether there was sufficient evidence to sustain the cold, calculated, and premeditated (CCP) aggravating factor in a death penalty case. In Guardado , the Court merely referred to the defendant's use of a knife and breaker bar when discussing the conviction of robbery with a weapon. Finally, although this Court in Dale stated that the standard jury instruction for "weapon," which was used in this case, was "a correct statement of law," that case involved whether a BB gun could be considered a deadly weapon. 703 So.2d at 1046-47. Thus, in none of the post- Houck cases cited by the majority was the issue of whether certain objects constituted "weapons" for purposes of the reclassification statute squarely before the Court.

Construing the term narrowly, and in favor of the accused, I would conclude that there should be an explicit finding that the defendant intended to use the object to inflict harm before a felony can be reclassified. Failure to construe the term in this manner will lead to reclassification in any and every situation where any object is used to inflict harm on another. If this is what the Legislature intended, one has to ask what purpose a separate reclassification statute serves. Stated another way, construing "weapon" as the majority does today renders the purpose of the reclassification statute meaningless. See State v. Bodden , 877 So.2d 680, 686 (Fla. 2004) ("[C]ourts should avoid readings that would render part of a statute meaningless." (quoting State v. Goode , 830 So.2d 817, 824 (Fla. 2002) ) ).

CONCLUSION

For these reasons, I dissent from the majority's adopted definition of "weapon" for purposes of the reclassification statute, which would include virtually any object. Instead, I would reaffirm Houck , or, in the alternative, require an explicit finding of intent before a felony can be reclassified. I would therefore quash the decision of the First District in Shepard , and approve the decision of the Second District Court of Appeal in Gonzalez v. State , 197 So.3d 84 (Fla. 2d DCA 2016).

      We also reject without comment Shepard's claim that his vehicle was unlawfully seized.

      Other courts have similarly defined "weapon" to include objects used as weapons, including automobiles. See, e.g. , United States v. Barnes , 569 F.2d 862, 863 (5th Cir. 1978) ("[A]lmost any implement, even a belt buckle, could be intended or used as a weapon."); Tatum v. United States , 110 F.2d 555, 555-56 (D.C. Cir. 1940) (" 'Weapon' includes 'any instrument of offense; anything used, or designed to be used, in attacking an enemy ....' An automobile, a rolled-up kit of tools, or a pin, is a 'weapon' when it is used as one." (footnotes omitted) ); Wright v. State , 72 Md.App. 215, 528 A.2d 498, 500 (Md. Ct. Spec. App. 1987) ("A weapon ... has been broadly defined as anything used or designed to be used in destroying, defeating, or injuring an enemy or as an instrument of offensive or defensive combat."); Coles v. Commonwealth , 270 Va. 585, 621 S.E.2d 109, 111 (2005) ("A motor vehicle, wrongfully used, can be a weapon as deadly as a gun or a knife." (quoting Essex v. Commonwealth , 228 Va. 273, 322 S.E.2d 216, 220 (1984) ) ).

      Although the First District affirmed the trial court's reclassification of the manslaughter conviction to a first-degree felony, it reversed Shepard's sentence and remanded for resentencing, concluding that the trial court improperly considered Shepard's lack of remorse when sentencing him. Shepard v. State , 227 So.3d 746, 749 (Fla. 1st DCA 2017).

      In Houck , this Court construed the 1991 version of the reclassification statute. 652 So.2d at 359. However, the 1991 version is essentially the same as the 2011 version-the version at issue in this case. Whereas the 2011 version says "threatens to use, or attempts to use," the 1991 version simply stated "threatens, or attempts to use." Compare § 775.087(1), Fla. Stat. (2011), with § 775.087(1), Fla. Stat. (1991). This minor change has no effect for purposes of the issue before us today.

      While this definition appears in a separate chapter of Florida Statutes from the reclassification statute, it is located in the same part: Part XLVI-"Crimes."


author: PER CURIAM. PARIENTE, J., dissenting.

text:
    Dusty Ray SPENCER, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1269
    Supreme Court of Florida.
    November 8, 2018
    Maria E. DeLiberato, Interim Capital Collateral Regional Counsel, Julissa R. Fontán and Chelsea R. Shirley, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Dusty Ray Spencer, a prisoner under sentence of death, appeals the circuit court's order summarily denying his successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Spencer was convicted of the 1992 first-degree murder of his wife, Karen Spencer. Spencer v. State , 645 So.2d 377, 380 (Fla. 1994), cert. denied , 522 U.S. 884, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997). The jury recommended a death sentence by a seven to five vote, and the trial judge followed the jury's recommendation and imposed a sentence of death. Id. We affirmed Spencer's conviction on direct appeal. Id. at 383. As to the death sentence, we concluded that the trial court improperly found an aggravating factor-that the murder was cold, calculated, and premeditated-and improperly failed to consider the statutory mental mitigating circumstances of extreme disturbance and impaired capacity; thus, we vacated the death sentence and remanded the case for reconsideration of the sentence by the judge. Id. at 385. On remand, the trial court again imposed a sentence of death, and we affirmed the sentence. Spencer v. State , 691 So.2d 1062, 1063, 1066 (Fla. 1996), cert. denied , 522 U.S. 884, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997). Spencer's sentence became final in 1997 when the United States Supreme Court denied certiorari review. See Fla. R. Crim. P. 3.851(d)(1)(B) (stating that for the purposes of filing postconviction claims under rule 3.851, a judgment and sentence become final "on the disposition of the petition for writ of certiorari by the United States Supreme Court, if filed").

In 2003, we affirmed the denial of Spencer's initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Spencer v. State , 842 So.2d 52, 58 (Fla. 2003). In 2009, we affirmed the summary denial of Spencer's first successive motion for postconviction relief. Spencer v. State , 23 So.3d 712 (Fla. 2009) (table). In January 2017, Spencer filed a successive motion to vacate his death sentence in light of Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). In April 2017, the circuit court summarily denied the motion. This appeal follows. During the pendency of this case in this Court, we directed the parties to file briefs addressing why the circuit court's order should not be affirmed based on our precedent in Hitchcock v. State , 226 So.3d 216, 217 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017).

In Hitchcock , we held that "our decision in Asay [v. State , 210 So.3d 1, 22 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017),] forecloses relief" under Hurst for defendants whose convictions and sentences were final prior to the United States Supreme Court's decision in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See also Lambrix v. State , 227 So.3d 112, 113 (Fla.) (rejecting Lambrix's argument that the Eighth Amendment, equal protection, and due process require that Hurst be applied retroactively to Lambrix even though his sentences were final prior to Ring ), cert. denied , --- U.S. ----, 138 S.Ct. 312, 199 L.Ed.2d 202 (2017). Thus, because his sentence became final prior to Ring , Spencer is not entitled to Hurst relief.

Nor is Spencer entitled to relief on his other claims. Spencer's claim that he should have been entitled to have a jury reweigh the aggravation and mitigation when his case was remanded for reconsideration of the sentence by the trial judge in 1994 is untimely and procedurally barred. Spencer's assertion that his death sentence cannot withstand Eighth Amendment scrutiny because this Court's refusal to grant him Hurst relief is arbitrary and capricious does not present a basis for relief. This "argument is not novel and has been previously rejected by this Court." Asay v. State , 224 So.3d 695, 703 (Fla. 2017). And Spencer's claim that his death sentence violates Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and the Eighth Amendment is foreclosed by our recent decision in Reynolds v. State , 251 So.3d 811, 825 (Fla. 2018), petition for cert. filed , No. 18-5181 (U.S. July 3, 2018), in which we held that "a Caldwell claim based on the rights announced in Hurst and Hurst v. Florida cannot be used to retroactively invalidate the jury instructions that were proper at the time under Florida law" (citing Romano v. Oklahoma , 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) ). Accordingly, we affirm the circuit court's order summarily denying Spencer's successive motion for postconviction relief.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

PARIENTE, J., dissents with an opinion.

PARIENTE, J., dissenting.

I dissent. While I realize that this Court's precedent directs us to affirm Spencer's death sentence, in my view, the combination of several critical and unique factors in this case mandate a new penalty phase under Hurst . The most critical error was the complete absence of a jury in the last determination that Spencer should be sentenced to death after this Court struck the aggravating factor that the murder was committed in a cold, calculated, and premeditated manner (CCP) and remanded for reconsideration by the trial judge.

After the jury nonunanimously recommended a sentence of death by a vote of seven to five-the barest of majority-this Court determined on direct appeal that (1) the jury and trial judge, in sentencing Spencer to death, improperly considered the aggravating factor of CCP, and (2) the trial court improperly failed to consider statutory mitigation in sentencing Spencer to death. See Spencer v. State , 691 So.2d 1062, 1063 (Fla. 1996) ; Spencer v. State , 645 So.2d 377, 384 (Fla. 1994).

Based on this Court's "rejection of the CCP aggravating factor and the trial court's failure to consider the statutory mental mitigating circumstances of extreme disturbance and impaired capacity," this Court vacated Spencer's sentence of death and "remand[ed] th[e] case for reconsideration of the death sentence by the judge." Spencer , 645 So.2d at 385. Despite clear precedent that this Court should have reviewed whether striking the CCP aggravator was harmless beyond a reasonable doubt, this Court did not and, instead of reversing for a new penalty phase in front of a jury, remanded for reconsideration by the trial court alone. See Spencer , 645 So.2d at 384-85. After reviewing the evidence on remand, the trial judge again imposed death, finding two aggravating factors and three statutory mitigating circumstances. Spencer , 691 So.2d at 1063.

Ironically, if this Court had reversed for a new penalty phase rather than remanding the case for "reconsideration" of the aggravation and mitigation by the trial court, Spencer might be entitled to Hurst relief. By the time the case came back to this Court after a new penalty phase (assuming the jury's recommendation was nonunanimous), Spencer would have likely been entitled to a new penalty phase pursuant to Hurst under Mosley v. State , 209 So.3d 1248, 1283 (Fla. 2016).

Spencer's case involves the quintessential Hurst error-a defendant being sentenced to death without trial by jury, as guaranteed by the United States and Florida Constitutions. For these reasons, I would grant Spencer a new penalty phase.

Accordingly, I dissent.

      See Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay v. State (Asay V ), 210 So. 3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017) ; Mosley v. State , 209 So.3d 1248 (Fla. 2016).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). I would further note that Spencer raised the unconstitutionality of Florida's death penalty on direct appeal in 1994-years before Ring -arguing that "Florida's death penalty is unconstitutional." Spencer v. State , 645 So.2d 377, 384 (1994). Without discussion, this Court summarily rejected that argument. Id.

      Williams v. State , 967 So.2d 735, 765 (Fla. 2007) ("When this Court strikes an aggravating factor on appeal, 'the harmless error test is applied to determine whether there is no reasonable possibility that the error affected the sentence.' " (quoting Jennings v. State , 782 So.2d 853, 863 n.9 (Fla. 2001) ) ); see Wood v. State , 209 So.3d 1217, 1229 (Fla. 2017) ("[T]he CCP aggravating factor is 'one of the most serious aggravators set out in the statutory scheme.' " (quoting Silvia v. State , 60 So.3d 959, 974 (Fla. 2011) ) ); id. at 1233-34 ; Mahn v. State , 714 So.2d 391, 398-99 (Fla. 1998).

      The aggravating factors were "1) Spencer was previously convicted of a violent felony, based upon his contemporaneous convictions for aggravated assault, aggravated battery, and attempted second-degree murder; and 2) the murder was especially heinous, atrocious, or cruel (HAC)." Spencer , 691 So.2d at 1063 (citing § 921.141(5)(b), (h), Fla. Stat. (1993) ). The mitigating circumstances were "1) the murder was committed while Spencer was under the influence of extreme mental or emotional disturbance; 2) Spencer's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and 3) the existence of a number of nonstatutory mitigating factors in Spencer's background, including drug and alcohol abuse, paranoid personality disorder, sexual abuse by his father, honorable military record, good employment record, and ability to function in a structured environment that does not contain women." Id. (citing § 921.141(6)(b), (f), Fla. Stat. (1993) ).

      For example, James Card committed the crimes for which he was sentenced to death in 1981 and was originally sentenced to death in 1984-years before Spencer. See Card v. State , 803 So.2d 613, 617 (Fla. 2001). However, because this Court granted Card a resentencing, his sentence of death did not become final until after Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and he was granted Hurst relief. Card v. Jones , 219 So.3d 47 (Fla. 2017).


author: PER CURIAM.

text:
    Anthony MUNGIN, Appellant, v. STATE of Florida, Appellee.
    No. SC17-815
    Supreme Court of Florida.
    November 15, 2018
    Todd G. Scher of Law Office of Todd G. Scher, P.L., Hollywood, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Lisa Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

We have for review Anthony Mungin's appeal of the postconviction court's order denying Mungin's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the postconviction court's order.

FACTS AND BACKGROUND

Mungin was convicted of first-degree murder and sentenced to death following a jury's recommendation for death by a vote of seven to five. Mungin v. State , 689 So.2d 1026, 1028 (Fla. 1995). This Court explained the facts underlying his conviction and sentence on direct appeal, stating in part:

Betty Jean Woods, a convenience store clerk in Jacksonville, was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer entering the store passed a man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as Mungin.

Id. This Court affirmed Mungin's conviction and sentence of death on direct appeal. Id. His sentence of death became final in 1997. Mungin v. Florida , 522 U.S. 833, 118 S.Ct. 102, 139 L.Ed.2d 57 (1997). In the more than twenty years since, Mungin has engaged in extensive postconviction litigation but has not received any relief from his conviction or death sentence. See Mungin v. State , 141 So.3d 138, 140 (Fla. 2013) ; Mungin v. State , 79 So.3d 726 (Fla. 2011) ; Mungin v. State , 932 So.2d 986, 990 (Fla. 2006).

In January 2017, Mungin filed the successive motion for postconviction relief at issue in this case seeking relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). The postconviction court summarily denied Mungin's motion.

This Court stayed Mungin's appeal pending the disposition of Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock , Mungin responded to this Court's order to show cause arguing why it should not be dispositive in this case. After reviewing Mungin's response to the order to show cause, as well as the State's arguments in reply, we ordered full briefing on Mungin's non- Hurst claim.

ANALYSIS

As stated above, Mungin's sentence of death became final in 1997. Based on this Court's precedent, Hurst does not apply retroactively to his sentence of death. Id. at 217 ; see Asay v. State (Asay V ), 210 So. 3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017). Thus, Mungin is not entitled to the relief he claims, which depends upon the retroactive application of Hurst to his sentence of death.

CONCLUSION

For the reasons explained above, we affirm the postconviction court's order denying Mungin's claims seeking Hurst relief.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

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

PARIENTE, J., concurring in result.

I write separately because I continue to adhere to the views expressed in my dissenting opinion in Hitchcock that Hurst should apply retroactively to cases like Mungin's. Hitchcock , 226 So.3d at 220-23 (Pariente, J., dissenting).

Applying Hurst to Mungin's sentence of death, I would grant a new penalty phase based on the jury's nonunanimous recommendation for death by a vote of seven to five. Per curiam op. at 1. Further, I agree with Justice Anstead's dissenting opinion in Mungin's direct appeal, arguing that Mungin was entitled to a retrial because the evidence was insufficient to sustain a finding of premeditation. Mungin v. State , 689 So.2d 1026, 1032 (Fla. 1995) (Anstead, J., dissenting).

      We do not address Mungin's motion to disqualify the judge who issued that order because it was untimely.

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

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


author: PER CURIAM. CANADY, C.J., specially concurring.

text:
    Grover B. REED, Appellant, v. STATE of Florida, Appellee.
    No. SC17-896
    Supreme Court of Florida.
    November 15, 2018
    Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

We have for review Grover B. Reed's appeal of the postconviction court's order denying Reed's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. Because we conclude that the judge who heard this motion should have recused herself, we reverse the postconviction court's order and remand for a different trial judge to consider Reed's postconviction motion.

FACTS AND BACKGROUND

Reed was sentenced to death following a jury's recommendation for death by a vote of eleven to one. Reed v. State , 560 So.2d 203, 204 (Fla. 1990). His sentence of death became final in 1990. Reed v. Florida , 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990). In the nearly thirty years since, Reed has engaged in extensive postconviction litigation in both state and federal courts but has not received any relief from his convictions or death sentence. See Reed v. State , 116 So.3d 260, 262-63 (Fla. 2013) (explaining procedural history).

On January 12, 2017, Reed filed the successive postconviction motion at issue in this case seeking relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). The postconviction court, specifically Judge Linda McCallum, summarily denied Reed's motion.

After receiving Judge McCallum's order denying his motion, Reed filed a motion to disqualify Judge McCallum. Reed's motion stated in pertinent part:

Judge McCallum was employed by the Duval County State Attorney's Office from 1986 until her appointment as a county judge in 1994. During her tenure with the State Attorney's Office, Judge McCallum handled capital prosecutions and was part of the team of capital attorneys. In at least one case during that time, she represented the State at a capital trial and penalty phase that resulted in a death sentence. Thomas Moore, the defendant in that case, is currently still on death row.
Mr. Reed was tried and convicted in late 1986. A death sentence was imposed in January of 1987. Postconviction proceedings involving capital prosecutors from the State Attorney's Office were ongoing in the early 1990's. Throughout this time period Judge McCallum was employed by the State Attorney's Office, handling capital prosecutions, and working with the attorneys who prosecuted Mr. Reed and represented the State in collateral proceedings. As part of the capital team during her tenure with the State Attorney's Office, each capital prosecutor including Judge McCallum had input in the decision making in each other's cases .
... While Mr. Reed's [successive postconviction] motion sought specifically to vacate his death sentence, a finding that he was entitled to collateral relief would mean that in the capital cases that Judge McCallum prosecuted between 1986 and 1994 that resulted in the imposition of a death sentence, relief would likely have to also be granted. A ruling in Mr. Reed's case would impact the death sentences that Judge McCallum successfully sought and which have yet to be carried out. As a result, Judge McCallum's ruling on Mr. Reed's motion would impact the death sentences that she was successful in obtaining and which are still intact and have yet to be carried out.

(Emphasis added.)

On March 22, 2017, Judge McCallum denied Reed's motion to disqualify as legally insufficient. Acknowledging Reed's allegation that she "was an Assistant State Attorney working on capital cases at the time of his postconviction proceedings," Judge McCallum concluded that Reed's allegations were "speculative" and "cursory" and neither "allege[d] any specific instances of prejudice or bias of the Court" nor "an objectively reasonable fear that he will not receive a fair hearing."

Reed appealed to this Court. This Court stayed Reed's appeal pending the disposition of Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock , Reed responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case. After reviewing Reed's response to the order to show cause, we directed briefing on Reed's non- Hurst related claims.

In the briefs filed in response to this Court's order, Reed argued that: (1) Judge McCallum erred in denying his motion to disqualify; (2) he is entitled to reevaluation of his prior postconviction claims in light of Hurst and its progeny; and (3) his death sentence violates the Eighth Amendment to the United States Constitution under the United States Supreme Court's decision in Johnson v. Mississippi , 486 U.S. 578, 590, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Because we grant relief on Reed's first claim, we decline to address Reed's second and third claims.

ANALYSIS

At the outset, the State argues that Reed's motion to disqualify was untimely. Because the postconviction court denied Reed's claim to Hurst relief without holding a Huff hearing, Reed alleged that he learned that his case had been reassigned to Judge McCallum only after he received the denial order on March 6, 2017. Reed's motion to disqualify was filed within ten days of that date, on March 15, 2017. Thus, Reed complied with Florida Rule of Judicial Administration 2.330(e), requiring that "[a] motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling."

On the merits, we review the postconviction court's denial of Reed's motion to disqualify de novo. See Barnhill v. State , 834 So.2d 836, 842-43 (Fla. 2002). This Court has stated that "[t]he question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially." Livingston v. State , 441 So.2d 1083, 1086 (Fla. 1983). In reviewing a motion to disqualify, "the judge shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged." Cave v. State , 660 So.2d 705, 707-08 (Fla. 1995) ; see Fla. R. Crim. P. 3.231. In "determining whether a motion is legally sufficient," courts must review "whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." Barnhill , 834 So.2d at 843 (quoting MacKenzie v. Super Kids Bargain Store, Inc. , 565 So.2d 1332, 1335 (Fla. 1990) ); see Wall v. State , 238 So.3d 127, 142-43 (Fla.), cert. denied , --- U.S. ----, 139 S.Ct. 329, 202 L.Ed.2d 230 (2018).

Reed relies on Williams v. Pennsylvania , --- U.S. ----, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016), where the United States Supreme Court explained that a judge may violate a defendant's rights under the Due Process Clause of the Fourteenth Amendment if he or she formerly served as a prosecutor and, in doing so, played a critical role in the defendant's prosecution. Id. at 1906. Although we do not agree that Williams requires recusal, we nevertheless determine that the allegations in the motion to disqualify were sufficient to warrant recusal under this Court's standard-"whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." Barnhill , 834 So.2d at 843.

While Judge McCallum was not the assigned prosecutor on Reed's case, she was actively prosecuting capital cases during the time period when Reed's prosecution was ongoing. It was alleged that she was a part of the team of capital prosecutors and that, "as part of the capital team during her tenure with the State Attorney's Office, each capital prosecutor including Judge McCallum had input in the decision making in each other's cases." Considering the unique aspects of death penalty cases, including the very decision to seek the death penalty, we conclude that, in these narrow circumstances, Reed's motion was legally sufficient to require Judge McCallum to recuse herself from Reed's case. See id. Thus, Judge McCallum should have granted Reed's motion to disqualify and should not preside over further proceedings pertaining to Reed's case, should there be future proceedings.

CONCLUSION

For the reasons explained above, we reverse the postconviction court's order denying Reed's motion to disqualify and remand for reassignment to another judge for evaluation of Reed's claims.

It is so ordered.

PARIENTE, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., specially concurs with an opinion.

LEWIS, J., concurs in result.

CANADY, C.J., specially concurring.

I concur with the majority's decision except that I would not rely on "the unique aspects of death penalty cases." Majority op. at 721.

      This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const. To the extent that Reed alternatively filed his motion pursuant to Florida Rule of Criminal Procedure 3.800(a), Reed's filings in this Court state that Reed is appealing the denial of his rule 3.851 motion and raise no argument pursuant to rule 3.800(a).

      Reed's Initial Brief to this Court explains that Judge Mahon "was still presiding" over Reed's case when he filed the postconviction motion at issue in this case, and "[t]here was no notice of a judicial reassignment." Initial Br. of Appellant, at 2.

      Huff v. State , 622 So.2d 982 (Fla. 1993).

      To the extent Reed argues that the postconviction court erred by not holding a case management conference or Huff hearing, we deny this claim. See Marek v. State , 14 So.3d 985, 999-1000 (Fla. 2009).