author: PER CURIAM. CANADY, C.J., dissenting. PARIENTE, J., dissenting. LEWIS, J., dissenting.

text:
    The FLORIDA BAR, Complainant, v. Jacqueline Marie KINSELLA, Respondent.
    No. SC17-55
    Supreme Court of Florida.
    December 20, 2018
    Joshua E. Doyle, Executive Director, Tallahassee, Florida, Kenneth H. P. Bryk, Bar Counsel, Orlando, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant
    Jacqueline Marie Kinsella, pro se, Goldenrod, Florida, for Respondent
   PER CURIAM.

This case is before us on the review of a referee's report recommending that Respondent, Jacqueline Marie Kinsella, be found guilty of various violations of the Rules of Professional Conduct arising from her theft of money from Kohl's Department Store, where she worked as an employee. After finding numerous mitigating factors, the referee recommended that Kinsella be suspended from the practice of law for ten days. Neither party contested the findings of guilt, but The Florida Bar sought review of the ten-day suspension, arguing in favor of a rehabilitative suspension of ninety-one days. After reviewing the referee's report, we suspended Kinsella immediately and issued an order to show cause why she should not receive a more severe sanction up to and including disbarment. Having considered the record, the responses to the order to show cause, and our prior case law, we conclude that a more severe sanction than a ninety-one day suspension is required and hereby suspend Kinsella from the practice of law for three years.

FACTS

Kinsella was admitted to The Florida Bar in February 2016. On three separate occasions between April 21, 2016, and May 6, 2016, Kinsella stole money from three different cash registers at the Kohl's Department Store where she worked. She stole $140 on April 21, 2016, $100 on April 25, 2016, and $520 on May 6, 2016.

In May 2016, she was arrested and charged with grand theft of $300 or more but less than $5,000. On September 1, 2016, Kinsella entered a no contest plea to the first-degree misdemeanor charge of petit theft, and the remaining charges were dismissed by the State. Adjudication of guilt was withheld and she was placed on probation under the supervision of the Department of Corrections for a period of twelve months. Kinsella was further ordered to pay court costs and restitution to Kohl's, perform fifty hours of community service, complete a Vital Life Skills Class, and not to enter or go upon the premises of any Kohl's store.

On January 11, 2017, The Florida Bar filed its formal complaint against Kinsella in these proceedings. On January 31, 2017, Kinsella filed her Answer wherein she admitted the alleged facts and rule violations. On April 27, 2017, a sanction hearing was held before a referee to determine the appropriate disciplinary sanction. Because Kinsella admitted all allegations contained in the Bar's formal complaint, no evidentiary testimony was presented to establish findings of fact or guilt.

The referee found that Kinsella fully cooperated with law enforcement and the Bar, her misconduct was not related to alcohol or drug abuse or a gambling addiction, and none of the stolen funds were related to the practice of law. Kinsella testified during a sworn statement and at the sanction hearing that she voluntarily entered into a treatment contract with Florida Lawyers Assistance, Inc. (FLA) and has made progress in addressing the issues that led her to engage in these acts of misconduct. She reported that her treatment involves debt management and financial counseling. Kinsella admitted that she took the funds from Kohl's because she had unresolved debt. The referee found that Kinsella's financial problems existed at the time she applied for membership to The Florida Bar and continue to persist today. Lastly, the referee found that Kinsella demonstrated significant remorse during her testimony at the sanction hearing.

The referee's report found Kinsella guilty of violating multiple Rules Regulating the Florida Bar including: Rules 3-4.3 (Misconduct and Minor Misconduct); 3-4.4 (Criminal Misconduct); 4-8.4(b) (Misconduct-Criminal Conduct that Reflects Adversely on Honesty, Trustworthiness, or Fitness as a Lawyer); and 4-8.4(c) (Misconduct-Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation).

Based on his findings of fact, recommendations as to guilt, the aggravating and mitigating factors, the Florida Standards for Imposing Lawyer Sanctions, and case law, the referee recommended that Kinsella be suspended from the practice of law for ten days, followed by a one-year period of probation with additional conditions, and that she be ordered to pay the Bar's costs of $1,616.60. On February 15, 2018, this Court issued an order suspending Kinsella from the practice of law and commanding her to show cause why the referee's recommended sanction should not be disapproved and a more severe sanction, up to and including disbarment, be imposed.

ANALYSIS

Neither Kinsella nor the Bar contest the appropriateness of the referee's findings of fact or recommendations as to guilt. Accordingly, we approve the referee's findings of fact and recommendations as to guilt.

As for the appropriateness of the recommended sanction, Kinsella contends that this Court should approve the referee's recommended discipline. The Bar, conversely, contends that this Court should disapprove the referee's recommended sanction and instead impose a suspension of at least ninety-one days. We conclude, based on the extensive mitigation presented in this case, Kinsella's remorse, and the referee's finding that Kinsella voluntarily sought out, consented to, and is making progress in treatment with FLA, that a three-year suspension, rather than disbarment, is the appropriate sanction.

The standard of review for a referee's recommendation as to discipline is as follows:

In reviewing a referee's recommended discipline, the 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 caselaw and the [Florida] Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer , 753 So.2d 555, 558 (Fla. 1999).

Fla. Bar v. Ratiner , 46 So.3d 35, 39 (Fla. 2010).

In determining the appropriate sanction in this case, the referee considered several Standards for Imposing Lawyer Sanctions. Standard 5.1 provides that disbarment is appropriate when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice law. Standard 5.12 provides that suspension is appropriate when a lawyer knowingly engages in conduct not included in the standard for disbarment and that seriously adversely reflects on the lawyer's fitness to practice law. Lastly, Standard 5.13 provides that a public reprimand is appropriate when a lawyer knowingly engages in any other conduct involving dishonesty, fraud, deceit, or misrepresentation that adversely reflects on the lawyer's fitness to practice law.

We conclude that Standard 5.12 is the most appropriate standard for this case. The critical distinction between Standard 5.12, which calls for suspension, and Standard 5.1, which provides for disbarment, is whether the conduct "seriously adversely reflects on the lawyer's fitness to practice law." Fla. Stds. Imposing Law. Sancs. 5.1. In this case, both the State Attorney and the referee found that Kinsella's conduct warranted mercy. Although Kinsella was originally charged with grand larceny, a felony, she was allowed to enter a plea to petit theft, a misdemeanor, and received probation with adjudication withheld. Additionally, despite Kinsella's three acts of theft, the referee concluded that only a ten-day suspension was appropriate in this case. While we disagree with the length of suspension recommended by the referee, we agree that suspension, rather than disbarment, is appropriate.

The referee found three aggravating factors-(1) Kinsella acted with a dishonest or selfish motive; (2) she engaged in a pattern of misconduct; and (3) she committed multiple offenses-and seven mitigating factors: (1) Kinsella did not have a prior disciplinary record; (2) she suffered personal or emotional problems not related to alcohol or drug abuse; (3) she made a timely good faith effort to make restitution or rectify the consequences of her misconduct; (4) she made a full and free disclosure to the Bar or had a cooperative attitude toward the proceedings; (5) she is inexperienced in the practice of law; (6) other penalties or sanctions have been imposed for the same conduct; and (7) she showed remorse.

This Court has stated: "Like other factual findings, a referee's findings of mitigation and aggravation carry a presumption of correctness and will be upheld unless clearly erroneous or without support in the record. A referee's failure to find that an aggravating factor or mitigating factor applies is due the same deference." Fla. Bar v. Germain , 957 So.2d 613, 621 (Fla. 2007) (citation omitted). Kinsella did not challenge the aggravating factors and in fact admitted that she understood that what she was doing was illegal; however, the referee also found that Kinsella fully and freely disclosed her misconduct to the Bar and took steps on her own accord, including entering into a contract with FLA, to address her financial situation.

The case law also supports imposing a lengthy suspension rather than disbarment in this case. Florida Bar v. Anderson , 594 So.2d 302 (Fla. 1992), and Florida Bar v. Del Pino , 955 So.2d 556 (Fla. 2007), are instructive. In Anderson , like this case, the attorney misappropriated funds from her employer for personal use. 594 So.2d at 303. Anderson pled no contest to three third-degree felonies; adjudication of guilt was withheld and she was placed on probation for three years. Id. The referee recommended a three-year suspension; however, the Court found that disbarment was warranted. Id. at 304. Like Kinsella, Anderson misappropriated her employer's funds, and her crimes were not committed in her capacity as an attorney. Unlike Kinsella, however, Anderson was ultimately convicted of three counts of felony theft, while Kinsella pled no contest to one count of misdemeanor theft, with adjudication withheld. Again, it is significant that the State chose not to pursue the more severe sanction of grand larceny against Kinsella.

In Del Pino , the attorney was suspended for three years after she participated in the fraudulent transfer of a condominium, which resulted in a conviction for mail fraud and tax evasion. 955 So.2d at 558-59. Del Pino pled guilty to both charges and was sentenced to three years of probation with conditions. Id. at 559. In imposing a three-year suspension, the Court noted several mitigating factors significant to its analysis including evidence of an emotionally and physically abusive romantic relationship. Id. at 562. Unlike Del Pino , this case involves less severe crimes; however, similar to Del Pino , the referee found multiple, compelling mitigating factors and decreased Kinsella's recommended sanction accordingly.

Florida Bar v. De la Torre , 994 So.2d 1032 (Fla. 2008), is also helpful. In De la Torre , the Court held that engaging in felonious conduct warrants suspension from the practice of law, even where adjudication of guilt is withheld. 994 So.2d at 1034. The attorney in that case entered no contest pleas to five criminal offenses (possession of cocaine, battery on a law enforcement officer, resisting an officer without violence, unlawful possession of cannabis, and possession of drug paraphernalia), two of which were felonies; adjudication of guilt was withheld. Id. Like this case, none of the criminal actions in De la Torre were related to the practice of law. Finding substantial mitigation, the referee recommended that De la Torre be suspended from the practice of law for ninety-one days followed by three years of probation. Id. The Court found De la Torre's evidence in mitigation significant but ultimately imposed an eighteen-month suspension from the practice of law. Id. at 1037-38.

Although this Court has begun to impose harsher sanctions for attorney misconduct, even this Court's most recent cases do not justify disbarring Kinsella. See Fla. Bar v. Rotstein , 835 So.2d 241, 246 (Fla. 2002). For example, this Court disbarred attorney Randall Lawrence Gilbert for negligently supervising an employee who stole millions of dollars from Gilbert's trust account. Fla. Bar v. Gilbert , 246 So. 3d 196 (Fla. 2018). In concluding that disbarment was the appropriate sanction in Gilbert , this Court held, "As an attorney, he owed a duty to the public and to his clients to safeguard their money. Instead, he flouted the system by lying to a federal probation officer and allowing a nonattorney to hold himself out as a law school graduate and a certified public accountant (CPA)." Id. at 197. While her misconduct was inexcusable, Kinsella's theft did not involve client funds and was unrelated to the practice of law. Moreover, Kinsella cooperated with authorities in the aftermath of her crime.

The Court has stated that it expects "members of The Florida Bar to conduct their personal business affairs with honesty and in accordance with the law." Fla. Bar v. Baker , 810 So.2d 876, 882 (Fla. 2002) ; see also Fla. Bar v. Hosner , 520 So.2d 567, 568 (Fla. 1988) ("[L]awyers are necessarily held to a higher standard of conduct in business dealings than are nonlawyers."). Here, Kinsella's flagrant abuse of the law merits a severe sanction. See, e.g. , Fla. Bar v. Hall , 49 So.3d 1254, 1261 (Fla. 2010).

However, on the whole, the referee also found substantial mitigation. First, though Kinsella stole a total of three times, the total amount of her thefts was less than $1,000. Kinsella pleaded no contest to one count of misdemeanor petit theft, and the State dismissed the felony grand theft charge and the other misdemeanor petit theft charge. Additionally, Kinsella successfully completed her one year of probation in this case and completed all of the other tasks assigned by the court, including payment of costs, payment of restitution to Kohl's Department Store, performance of fifty hours of community service, completion of a Vital Life Skills Class, and not entering any Kohl's location. Not even The Florida Bar suggested that disbarment is the appropriate sanction, arguing in its brief in this Court that a 91-day suspension is the appropriate sanction. Accordingly, given all of these circumstances, we conclude that the disciplinary sanction of a three-year suspension, rather than disbarment, is warranted and appropriately serves the three-pronged purpose of attorney discipline: (1) it is fair to society; (2) it is fair to the Respondent; and (3) it is severe enough to deter other attorneys from similar misconduct. See Fla. Bar v. Lawless , 640 So.2d 1098, 1100 (Fla. 1994).

CONCLUSION

Accordingly, Kinsella is hereby suspended from the practice of law for a period of three years. Because Kinsella is currently suspended, the suspension is effective immediately.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Jacqueline Marie Kinsella in the amount of $1,616.60, for which sum let execution issue.

It is so ordered.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE JANUARY 2, 2019. THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS SUSPENSION.

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

CANADY, C.J., dissents with an opinion, in which LEWIS, J., concurs.

PARIENTE, J., dissents with an opinion.

LEWIS, J., dissents with an opinion.

CANADY, C.J., dissenting.

I agree with Justice Lewis that Kinsella's misconduct requires disbarment. There is no reason to believe that a lawyer who has betrayed her employer by stealing from the employer will not betray her clients by stealing from them. There should be no place for thieves in The Florida Bar. As explained by Justice Lewis, Kinsella's misconduct falls squarely under Standard 5.11, which provides that disbarment is the appropriate sanction. We should follow that standard; Kinsella should be disbarred for her multiple acts of theft from her employer.

I dissent from the imposition of a sanction less than disbarment.

LEWIS, J., concurs.

PARIENTE, J., dissenting.

I begin with the acknowledgment that the conduct of Ms. Kinsella, freshly out of law school and having passed the Florida Bar Exam, cannot be excused when she stole $140, $100, and $520 from Kohl's Department store where she was working over a two-week period. But, as Kinsella does not attempt to justify her actions, has shown extreme remorse, and never contested the charges filed by The Florida Bar, the only question in this case is the appropriate sanction: Should Kinsella be given a ten-day suspension, as recommended by the referee who observed Ms. Kinsella, a ninety-one day suspension as requested by The Florida Bar, a three-year suspension as held by the majority of this Court, or disbarred as urged by the dissent?

I agree with the per curiam opinion that any act of theft requires a sanction more severe than a short nonrehabilitative suspension. In fact, Ms. Kinsella has already been suspended by order of this Court. However, the circumstances of this case do not compare to other theft cases where this Court has imposed three-year suspensions or disbarment. A three-year suspension is simply disproportionate to the conduct in this case and I would impose the sanction sought by The Florida Bar-a ninety-one day suspension.

While certainly not dispositive, the prosecutor in Kinsella's criminal case determined that Kinsella should be able to enter a no contest plea to only the first-degree misdemeanor charge of petit theft. Additionally, the prosecutor requested that adjudication be withheld and the court impose probation with specific conditions-all of with which Kinsella complied. Additionally, the referee found multiple mitigating factors, which the per curiam opinion acknowledges stating, "In this case, both the State Attorney and the referee found that Kinsella's conduct warranted mercy." Per curiam op. at 1049. However, the per curiam opinion uses this and other mitigating factors to justify the imposition of a three-year suspension rather than disbarment. I, conversely, would conclude that the extensive mitigation in this case warrants the imposition of a rehabilitative suspension of one year, which is far closer to the Bar's request for a ninety-one day suspension.

While neither the referee's recommendations nor The Florida Bar's requested sanctions are binding on this Court, in my view, they should not be ignored. I know this Court has become increasingly tough on attorneys who violate the Rules Regulating the Florida Bar, but we must keep in mind the facts and circumstances of each individual case and the purposes of Florida Bar discipline.

A Three-Year Suspension Is Not Warranted

As noted by the per curiam opinion, the referee found seven mitigating factors, including that Kinsella showed remorse, made a timely good faith effort to make restitution, made a full and free disclosure to the Bar, and had a cooperative attitude toward the proceedings. In addition, she has taken substantial steps to avoid problems in the future. All of these factors paint Kinsella as a young attorney who exercised extremely poor judgment and has taken full responsibility for her actions. Additionally, though the referee found three aggravating factors, two of those factors-a pattern of misconduct and multiple acts of misconduct-arise from the same underlying conduct.

Moreover, in her response, Kinsella indicated that she had spent the majority of her brief legal career before her suspension volunteering for the Legal Aid Foundation, "providing legal advice through a helpline to those who cannot afford a private attorney." Resp. to Order to Show Cause at 4. Indeed, Kinsella "hopes to continue work as a legal aid or non-profit attorney when the Court deems [her]

able." Id. Kinsella "believes this is the best way for her to serve the public." Id.

Our case law also supports this conclusion. The cases cited by the per curiam opinion are distinguishable and consequently unhelpful in this case. First, the misconduct in all three cases is significantly more egregious than the misconduct in this case. For example, the attorney in Florida Bar v. Anderson , 594 So.2d 302 (Fla. 1992), pleaded no contest to three third-degree felony charges, for which adjudication was withheld, while the attorney in Florida Bar v. De la Torre , 994 So.2d 1032, 1033-34 (Fla. 2008), entered no contest pleas to five criminal offenses, two of which were felonies, and adjudication was withheld. Anderson , 594 So.2d at 303 ; De la Torre , 994 So.2d at 1033-34. Conversely, in this case, Kinsella pled no contest to one misdemeanor charge of petit theft and adjudication of guilt was withheld. Additionally, the attorney in Florida Bar v. Del Pino , 955 So.2d 556 (Fla. 2007), was suspended for three years following a conviction for mail fraud and tax evasion. Id. at 558. Certainly Kinsella stealing less than $1,000 from her employer, while serious, is not the same kind or degree of misconduct as that of Del Pino.

Indeed, there does not appear to be a case from this Court that is directly on point. However, examining the conduct in the following cases illustrates that Kinsella's misconduct does not rise to that of attorneys who have historically been suspended from the practice of law for three years. Kinsella's misconduct is considerably less severe than that of other attorneys who have received equal or even lesser sanctions.

For example, in Florida Bar v. Arcia , 848 So.2d 296 (Fla. 2003), this Court held that an attorney's theft of funds from his law firm employer warranted a three-year suspension, followed by a three-year probationary period. Specifically, while Arcia was employed as an associate at the law firm of Zarco and Pardo, P.A., he formed his own one-man law firm, which was in direct competition with Zarco and Pardo, P.A. Id. at 297. Arcia solicited clients from Zarco and Pardo for his own benefit by intercepting telephone calls directed to the firm. Additionally, on several occasions he deposited fees he had obtained representing Zarco and Pardo's clients or prospective clients into his solo-firm's bank account. Id. Arcia admitted "to depriving the firm of about $62,000 in legal fees. During the 1½ to 2-year span of Arcia's misconduct, the firm paid him bonuses." Id.

Likewise, in Florida Bar v. Winters , 104 So.3d 299 (Fla. 2012), two attorneys participated in the following misconduct:

Winters and Yonker made secret plans to leave the Mulholland Firm and begin practicing together, and that in the process, Winters and Yonker: (1) themselves and through a former paralegal for the Mulholland Firm, solicited Mulholland Firm clients to terminate representation by the Mulholland Firm and be represented by Winters' and Yonker's new firm; (2) made misrepresentations to the Mulholland Firm and to Mulholland Firm clients; (3) made copies of and took possession of Mulholland Firm client files without authorization; and (4) improperly used a third attorney's name, who never actually joined the new firm, in their new firm name on documents.

Id. at 300. Ultimately, the Court imposed a ninety-one day suspension for Winters and a sixty-day nonrehabilitative suspension for Yonker. Id. at 303.

Most recently, this Court imposed a one-year suspension for an attorney who converted $500 in client funds for his own use. See Fla. Bar v. Wynn , 210 So.3d 1271, 1272 (Fla. 2017). In doing so, we noted that "misuse or misappropriation of client funds is one of the most serious offenses a lawyer can commit." Id. at 1274.

Likewise, just this year, we approved an eighteen-month suspension for an attorney who knowingly signed and provided to a lender a real estate closing statement containing incorrect statements about closing funds. Fla. Bar v. Perez , No. SC16-111, 2018 WL 2731612, at *1 (Fla. Jun. 7, 2018). In that case, Perez prepared a closing statement reflecting that approximately $3 million in cash would be brought to the closing by the buyer, when, in fact, the total of the buyer's contribution consisted of $1.5 million in cash and a promissory note in favor of the seller of approximately $1.5 million. Order at 1, Fla. Bar v. Perez , No. SC16-111 (Fla. Oct. 20, 2017) (disapproving referee's report and remanding back to the referee for additional proceedings). Perez acknowledged that he purposely reflected the down payment inaccurately, but did not see a problem with doing so because he was directed to do so by the loan officer. Id. Certainly, Kinsella's acts of dishonesty are not so much more egregious than Perez's to warrant double the length of suspension. Additionally, there is far more mitigation in this case than was present in Perez .

Disbarment Is Not Warranted

I also disagree with the dissenting views that disbarment is warranted in this case and take particular issue with the assertion of Justice Lewis that "[t]he imposition of a three-year suspension, rather than disbarment, is a black eye on this Court's attorney misconduct jurisprudence." Dissenting op. at 1055 (Lewis, J.); see also dissenting op. at 1051 (Canady, C.J.). For obvious reasons, the facts in this case are far from analogous to cases where we have disbarred lawyers for trust account violations. Indeed, the majority of the cases upon which Justice Lewis relies involve just that-trust account violations, misappropriation of client funds, or other kinds of theft related to the practice of law. See dissenting op. at 1055-56 (Lewis, J.). While Kinsella's conduct cannot and should not go unpunished, this case of a young woman who made a serious mistake unrelated to the practice of law, has made full restitution, and has exhibited extreme remorse is not comparable to cases involving misuse of client or law firm funds where this Court has disbarred attorneys.

In fact, the three-year suspension that the Court imposes is the longest rehabilitative suspension before disbarment, which is a five-year period and then requires the attorney to retake The Florida Bar examination and demonstrate rehabilitation. This harsh sanction requires that Kinsella would have to apply to The Florida Bar for reinstatement following the suspension and prove significant rehabilitation. See R. Regulating Fla. Bar 3-5.1(e). There is no guarantee that Kinsella would be reinstated, especially where there were acts of dishonesty. See R. Regulating Fla. Bar 3-7.10(f)(1) ("A record manifesting a deficiency in the honesty, trustworthiness, diligence, or reliability of a petitioner may constitute a basis for denial of reinstatement."). Finally, Kinsella would not be reinstated absent positive action showing rehabilitation and "personal assurances, supported by corroborating evidence, of a desire and intention to conduct [herself] in an exemplary fashion in the future." See R. Regulating Fla. Bar 3-7.10(f)(3)(E).

CONCLUSION

The Court's imposition of a three-year suspension is simply not supported by this Court's precedent. Moreover, I cannot agree that the harsh sanction imposed in this case serves the three-pronged purpose of attorney discipline: (1) it is fair to society; (2) it is fair to the respondent; and (3) it is severe enough to deter other attorneys from similar misconduct. See Fla. Bar v. Lawless , 640 So.2d 1098, 1100 (Fla. 1994).

Kinsella was punished in a criminal court of law and has paid her debt to society. Both the State Attorney and the referee concluded that Kinsella's misconduct did not warrant a severe sanction. Even the Bar has not advocated for a suspension greater than ninety-one days in this case. In light of all of these findings, it is clear that the Court's imposition of a three-year suspension is unnecessary and overly harsh. And, certainly, the findings do not justify the dissents' view that disbarment is warranted. Thus, I would follow the Bar's recommendation and impose a suspension ranging anywhere from ninety-one days to one year.

Accordingly, I dissent.

LEWIS, J., dissenting.

I dissent to this Court's imposition of a mere three-year suspension. In my view, Kinsella's unethical conduct warrants disbarment. Attorneys who commit the egregious act of theft or misappropriating monies are appropriately disbarred. See, e.g. , Fla. Bar v. Anderson , 594 So.2d 302 (Fla. 1992). The majority attempts to minimize Kinsella's conduct as somehow soluble given her student loan debt. I find such flimsy mollifications to be unavailing. The "extensive" mitigation cited by the majority does not and cannot overcome the serious nature of the offenses that Kinsella committed. See majority op. at 1048. The imposition of a three-year suspension, rather than disbarment, is a black eye on this Court's attorney misconduct jurisprudence. The overwhelming majority of cases involving theft have resulted in disbarment. See, e.g. , Fla. Bar v. Spear , 887 So.2d 1242 (Fla. 2004) ; Fla. Bar v. Shanzer , 572 So.2d 1382 (Fla. 1991). The majority's sanction of suspension is not authorized under the Florida Standards for Imposing Lawyer Sanctions ("the Standards") and does not have a reasonable basis in existing case law.

Kinsella was employed at Kohl's Department Store and was entrusted with handling the store's cash register. The fact that none of the stolen funds were related to the practice of law is irrelevant; Kinsella stole from those who entrusted her to handle money. See Fla. Bar v. Arcia , 848 So.2d 296, 300 (Fla. 2003) ("[F]or purposes of attorney discipline, theft of firm funds is serious enough to warrant disbarment under most circumstances."). Further, Kinsella was entrusted with handling Kohl's money in the same way that she would be entrusted to handle client funds; and, where conversion of client funds is concerned, the standards are clear:

4.11 Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury.

Fla. Stds. Imposing Law. Sancs. 4.1 ; see also Fla. Bar v. Bloom , 972 So.2d 172, 178 (Fla. 2007) (holding disbarment was the appropriate sanction for misconduct that included misappropriation of funds and criminal charges of theft).

Likewise, Standard 5.1 provides that disbarment is appropriate when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice law. Fla. Stds. Imposing Law. Sancs. 5.11 ("Disbarment is appropriate when ... a lawyer engages in ... theft."). This Court has repeatedly held that misuse of funds is one of the most serious offenses a lawyer can commit and that disbarment is presumed to be the appropriate punishment. Shanzer , 572 So.2d at 1383 (citing Fla. Bar v. Farbstein , 570 So.2d 933 (Fla. 1990) ; Fla. Bar v. Newman , 513 So.2d 656 (Fla. 1987) ); see also Fla. Bar v. Spears , 786 So.2d 516 (Fla. 2001) (disbarment was warranted sanction for attorney who misappropriated client funds while under investigation for other similar misconduct); Fla. Bar v. Travis , 765 So.2d 689, 691 (Fla. 2000) (disbarment was warranted for deliberately misappropriating clients' funds over a substantial period of time and noting that "[t]he presumption of disbarment is exceptionally weighty when the attorney's misuse is intentional"); Fla. Bar v. Fitzgerald , 541 So.2d 602, 606 (Fla. 1989) (disbarment ordered where attorney misappropriated trust funds despite unrebutted evidence of attorney's rehabilitation). Here, Kinsella stole money from Kohl's cash registers on three separate occasions. She was later arrested and charged with felony grand larceny. Thus, the presumptive sanction under the Standards is disbarment, not suspension.

Again, the fact that Kinsella's theft from her employer was not related to the practice of law is irrelevant. In my view, Justice Pariente's attempt to draw distinctions between where criminal conduct occurs and different levels of criminal sophistication is fanciful at best. An individual physically removing money from a cash register and an individual conducting an electronic credit card scam are both thieves. Further, the notion that Kinsella's conduct is not comparable to other cases involving misuse of client or law firm funds is severely misguided. Attempts to distinguish thefts related or unrelated to the practice of law ignore the common denominator at issue-theft. A thief is a thief. Kinsella's conduct was dishonest and unlawful and hollow explanations pointing to an individual's circumstances cannot diminish the fact that such a deceitful act occurred on three separate occasions.

Let it be clear, debt can be no excuse for such egregious conduct-many recent law school graduates have unresolved debt. Negative public sentiment toward the legal profession would surely increase if those who make the perilous mistake of engaging in this type of behavior are not rightly punished. An individual cannot be both a lawyer and a thief.

This Court has a responsibility to protect the public's trust and confidence in the legal profession. Those who are guilty of theft tarnish all of us. To impose anything other than disbarment is a disservice to Florida's court system and democracy. Kinsella's three-year suspension undermines professionalism and creates fertile ground for public distrust.

Kinsella should be disbarred. For these reasons, I dissent.

      Prior to becoming an attorney, Kinsella had two misdemeanor traffic cases brought against her, which were the subject of inquiry by the Florida Board of Bar Examiners.

      Order to Show Cause (Fla. Feb. 15, 2018) ("[T]he Court has determined that Respondent should receive at least a 91-day rehabilitative suspension.... [T]he Court hereby commands Jacqueline Marie Kinsella to show cause on or before March 19, 2018, why the referee's recommended sanction should not be disapproved and a more severe sanction, up to and including disbarment, be imposed.").

      In order for the trial court to agree to adjudication being withheld, there would have been a finding that "the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law." § 948.01(2), Fla. Stat. (2018).

      The dissenting opinion of Justice Lewis relies on Anderson , because the theft there was not related to the practice of law. 594 So.2d at 303. Indeed, Anderson involved an attorney who "converted publicly owned funds to pay off her personal credit-card debt" while working as an executive assistant with the Tampa Housing Authority. Id. However, in that case, The Florida Bar specifically requested disbarment and the referee recommended a three-year suspension. Id. at 302. Additionally, and significantly, this Court held that it was the theft of public funds that made it analogous to the theft of trust account funds. Id. at 303. In addition, the illegal conduct in that case was far more sophisticated as the attorney "forged a signature on two checks and submitted three Housing Authority money orders in payment for debts [she] owed" her credit card company. Id. The total amount involved in that case was $4,500 in public money. Id.

      To this point, the majority's characterization of Kinsella's post-arrest conduct as constituting "substantial" mitigation is misguided. An individual's completion of probation should not be characterized as "substantial" mitigation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sidney MARTS Jr., Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC18-1163
    Supreme Court of Florida.
    December 20, 2018
    Sidney Marts Jr., pro se, Perry, Florida, for Petitioner
    No appearance for Respondent
   PER CURIAM.

This case is before the Court on the petition of Sidney Marts Jr. for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. Petitioner Marts has pro se filed twenty-nine petitions or notices with this Court since September 17, 2008. On September 12, 2018, we dismissed the instant petition, expressly retained jurisdiction, and ordered Marts to show cause why he should not be barred from filing further pro se requests for relief in this Court related to circuit court case number 172007CF006067XXXAXX. See Marts v. Jones , No. SC18-1163, 2018 WL 4346302 (Fla. Sept. 12, 2018).

We now find that Marts has failed to show cause why he should not be barred, and we sanction him as set forth below.

In First Judicial Circuit Court (Escambia County) case number 172007CF006067XXXAXX, Marts was convicted of one count of fraudulent use of personal identification, one count of uttering a forged instrument, one count of grand theft, and one count of resisting a law enforcement officer without violence; he was sentenced to five years' imprisonment on each conviction on September 3, 2008. His convictions and sentences were per curiam affirmed on direct appeal. Marts v. State , 25 So.3d 1227 (Fla. 1st DCA 2009).

Since September 17, 2008, Marts has demonstrated a pattern of vexatious filing of meritless pro se requests for relief in this Court. Including the petition in the instant case, Marts has filed twenty-nine pro se petitions or notices with this Court since September 17, 2008. The Court has disposed of twenty-four of these filings to date, not including the petition in this case. Additionally, three of Petitioner's filings were voluntarily dismissed and one is currently pending before the Court. This Court has never granted Marts the relief sought in any of his filings here. Each of the twenty-four petitions and notices was denied, dismissed, or transferred to another court for consideration; his petition in this case is no exception.

Marts filed the instant petition for writ of habeas corpus with this Court on July 12, 2018. In it, Marts challenged his criminal punishment scoresheet and sentences. Because Marts filed the instant petition almost nine years after his convictions and sentences became final, rather than transferring the petition to the trial court we dismissed the petition pursuant to Baker v. State , 878 So.2d 1236 (Fla. 2004). To the extent that the petition could be construed as seeking mandamus relief, we denied the petition pursuant to Huffman v. State , 813 So.2d 10 (Fla. 2000). We expressly retained jurisdiction to consider the imposition of sanctions. In accordance with State v. Spencer , 751 So.2d 47 (Fla. 1999), we ordered Marts to show cause why he should not be barred frrom filing further pro se requests for relief.

Marts did not file a response to this Court's order. Instead, Marts filed a "Motion for Enlargement of Time w/ Motion for Production of Record and to Certify Record with Written Statement," which we denied in an October 1, 2018, order. Marts filed a second filing, a "Motion to Hold Clerk, John A. Tomasino in Direct and Indirect Contempt of Court w/ Petition for Rehearing of Motion for Enlargement of Time w/ Motion for Production of Record and to Certify Record with Written Statement into a Timely Response to Order to Show Cause by Amendment Under Relation Back Doctrine" on October 19, 2018. In his motion, Marts states that the Clerk of this Court willfully and maliciously denied his first motion. He further states that his first motion was timely filed and should be reinstated as a response to this Court's order to show cause under the "relation back doctrine." Additionally, Marts contends that due process affords him the right to respond to this Court's order before any sanctions can be imposed pursuant to this Court's decision in State v. Spencer , 751 So.2d 47 (Fla. 1999). Neither of Marts' motions contains any justification for his continued abuse of this Court's limited resources by filing numerous meritless pro se notices and petitions.

Therefore, based on Marts' extensive history of filing pro se petitions and requests for relief that were meritless or otherwise inappropriate for this Court's review, we now find that he has abused this Court's limited judicial resources. See Pettway v. McNeil , 987 So.2d 20, 22 (Fla. 2008) (explaining that this Court has previously "exercised the inherent judicial authority to sanction an abusive litigant" and that "[o]ne justification for such a sanction lies in the protection of the rights of others to have the Court conduct timely reviews of their legitimate filings"). If no action is taken, Marts will continue to burden this Court's resources. We further conclude that Marts' habeas corpus petition filed in this case is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2018).

Accordingly, we direct the Clerk of this Court to reject any future pleadings or other requests for relief submitted by Sidney Marts Jr. that are related to case number 172007CF006067XXXAXX, unless such filings are signed by a member in good standing of The Florida Bar. Furthermore, because we have found Marts' petition to be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2018), to forward a copy of this opinion to the Florida Department of Corrections' institution or facility in which Marts is incarcerated.

Marts' "Motion to Hold Clerk, John A. Tomasino in Direct and Indirect Contempt of Court w/ Petition for Rehearing of Motion for Enlargement of Time w/ Motion for Production of Record and to Certify Record with Written Statement into a Timely Response to Order to Show Cause by Amendment Under Relation Back Doctrine" is hereby denied.

No motion for rehearing or clarification will be entertained by this Court.

It is so ordered.

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

      See Marts v. Jones , No. SC18-1163, 2018 WL 4346302 (Fla. Sept. 12, 2018).

      Marts relies on this Court's decision in Bryant v. State , 901 So.2d 810 (Fla. 2005). In Bryant , we held that when a defendant's initial postconviction motion fails to comply with the requirements of Florida Rule of Criminal Procedure 3.851, the proper procedure is for the court to strike the motion with leave to amend within a reasonable period of time. Id. at 819.


author: Levine, J. CONNER, J., concurring in part and dissenting in part.

text:
    STATE of Florida, Petitioner, v. Dacoby Reshard WOOTEN and the Palm Beach Post, Respondents.
    No. 4D18-2636
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Christine Geraghty, Assistant Public Defender, West Palm Beach, for respondent Dacoby Reshard Wooten.
    L. Martin Reeder Jr. of Atherton McAuliffe & Reeder, PA, West Palm Beach, for respondent The Palm Beach Post.
   Levine, J.

The state asks us to prevent the disclosure of information that it had redacted from search warrants and warrant applications related to this pending criminal prosecution. We deny the petition and require an unredacted disclosure of the search warrants and applications to the defendant. Due process mandates it.

We also deny the petition as to the other portion of the order and require that there be an unredacted disclosure to the public and third parties. As to the public disclosure, first, the state did not preserve any argument regarding section 119.071, Florida Statutes (2018) ; second, this case does not involve a public records request under section 119.071 ; third, the trial court did not abuse its discretion in finding that the state did not meet its burden to justify closure; and finally, there is a common law "right to access" judicial records where the state has failed to demonstrate a compelling governmental interest in non-disclosure.

Because the requirements for certiorari review have not been met, we deny the petition and require the unredacted disclosure of the search warrants and the accompanying applications to the defendant and the public.

The defendant allegedly committed a murder, shot at a witness to the murder, and then fled the scene. Law enforcement obtained search warrants authorizing electronic tracking of the defendant's cell phone and the cell phone of a friend with whom the defendant allegedly was hiding. The order authorizing the search warrants stated that the warrants and supporting documents would be "sealed until further Order of this Court." Law enforcement apprehended the defendant at the friend's apartment. The search warrants, applications, affidavits, return, and inventory were not filed with the clerk of court as required by chapter 933, Florida Statutes.

The defendant sought discovery regarding cell phone tracking, including requests for all warrants relating to his cellphone. The state eventually filed with the court unredacted versions of the warrant documents under seal. The state sought to provide only redacted versions of the search warrants and applications to the defense and to prevent dissemination to third parties. The redacted information related to the tracking of cell phones.

The defendant moved to unseal the documents. The Palm Beach Post filed a motion to intervene seeking to vacate the order limiting disclosure of the redacted documents and requesting public access to the unredacted documents.

The trial court held a hearing on the motion to unseal and the motion to intervene. The trial court explained that during a prior hearing it treated the state's request to limit the unsealing as a motion to determine confidentiality of court records under Florida Rule of Judicial Administration 2.420. The trial court recognized that, under rule 2.420, warrants are court records. Rule 2.420(c)(6) exempts warrants and supporting documents from disclosure only until execution of the warrant or until it is determined that execution is not possible.

The state argued that "investigative techniques" should be deemed confidential to "protect a compelling governmental interest," referring to rule 2.420(c)(9)(A)(iii). The trial court stated that it had reviewed the unredacted materials in camera and concluded that the state's reasons for restricting disclosure did not amount to a compelling governmental interest.

The trial court granted the motion to unseal and ordered the unredacted records unsealed and made open to the public by a certain date. The trial court granted the Post's motion to intervene and denied the Post's motion to unseal as moot in light of the court granting the defendant's motion. The state petitioned this court for certiorari review. This court stayed the release of the unredacted documents pending our certiorari review.

The state argues that the trial court departed from the essential requirements of law by ordering the release of privileged surveillance techniques that are not subject to public disclosure under section 119.071(2)(d), Florida Statutes. The state contends that disclosure of "privileged surveillance techniques" will irreparably harm the state because it "will inform fugitives how to avoid lawful surveillance and to evade capture." The state alternatively argues that, even if the defendant is entitled to the unredacted documents, this court should find the unredacted documents are exempt from public disclosure.

To invoke certiorari jurisdiction, the state must show that the order complained of constitutes a departure from the essential requirements of law and causes the state material harm that cannot adequately be remedied on appeal. State v. Pettis , 520 So.2d 250, 252 (Fla. 1988). This extraordinary writ is reserved for situations where there is a "violation of a clearly established principle of law resulting in a miscarriage of justice." Id. at 254. We find that the trial court did not depart from the essential requirements of law in the present case.

I. PRESERVATION, JURISDICTION, AND STANDARD OF REVIEW

Initially, the state did not preserve the arguments raised in its petition. During the proceedings below, the state did not specifically assert a "surveillance technique privilege" under section 119.071(2)(d) or cite to any chapter 119 exemption. In fact, the state did not even use the term "surveillance." During the hearing, the trial court discussed Florida Rule of Judicial Administration 2.420. The state argued that "investigative techniques" should be deemed confidential to "protect a compelling governmental interest," referring to rule 2.420(c)(9)(A)(iii). The state did not argue any other grounds for closure under rule 2.420. Further, at no point did the state put the trial court on notice that it was in any way relying on section 119.071. The state did not cite this statute, track any language from the statute, or cite any cases involving that statute. See Tillman v. State , 471 So.2d 32, 35 (Fla. 1985) (stating that in order to preserve an issue for appellate review, the specific legal ground or argument relied upon for appeal must have been presented to the trial court).

Even if the state's arguments were preserved, the standard of review for all of the issues on appeal is abuse of discretion. "[I]t is within the sound discretion of the trial judge to grant or limit criminal discovery." State v. Kuntsman , 643 So.2d 1172, 1173 (Fla. 3d DCA 1994). "[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Nixon v. Warner Commc'ns, Inc. , 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). See also Miami Herald Pub. Co., a Div. of Knight-Ridder Newspapers, Inc. v. Morphonios , 467 So.2d 1026, 1029 (Fla. 3d DCA 1985) ("The trial court, upon ruling that a closure is warranted, must make findings of fact and must extend its order no further than the circumstances require."); Smithwick v. Television 12 of Jacksonville, Inc. , 730 So.2d 795, 798 (Fla. 1st DCA 1999) (applying abuse of discretion standard in ruling on motion to seal). The public right to access judicial records or documents under common law is also reviewed for abuse of discretion. See Nixon , 435 U.S. at 599, 98 S.Ct. 1306.

II. DISCLOSURE TO DEFENDANT

The defendant sought unredacted copies of the search warrants and applications. Florida Rule of Criminal Procedure 3.220, which governs discovery, provides that the state must disclose "whether there has been any search or seizure and any documents relating thereto." Fla. R. Crim. P. 3.220(b)(1)(H). Because the search warrants and applications were documents related to a search or seizure, the state was required to provide them to the defendant. See id.

"Florida's criminal discovery rules are designed to facilitate a truthful fact-finding process and to prevent surprise and trial by ambush. To ensure full and fair discovery, parties must both comply with the technical provisions of the discovery rules and adhere to the purpose and spirit of those rules in the criminal and civil contexts." Wilcox v. State , 143 So.3d 359, 375-76 (Fla. 2014) (citations omitted); see also Williams v. Florida , 399 U.S. 78, 81, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (noting that "Florida law provides for liberal discovery by the defendant against the State"). A defendant has a due process right under both the federal and Florida constitutions to defend himself against criminal charges, see U.S. Const. amend. V ; Fla. Const. art. 1, § 9, and a discovery violation may prevent a defendant from properly preparing for trial. See Scipio v. State , 928 So.2d 1138, 1147 (Fla. 2006) ; Wilcox v. State , 367 So.2d 1020, 1023 (Fla. 1979). Due process requires that the state disclose potentially exculpatory evidence to the defendant. Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Due process also requires that discovery "be a two-way street." Wardius v. Oregon , 412 U.S. 470, 475, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).

Rule 3.220 explains when a court may restrict discovery:

The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.

Fla. R. Crim. P. 3.220(e). The rule also states that "[d]isclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant's identity will infringe the constitutional rights of the defendant." Fla. R. Crim. P. 3.220(g)(2).

Applying the plain language of the rule to this case, restricting the disclosure of the search warrant documents was not authorized because there was no "substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from the disclosure." See Fla. R. Crim. P. 3.220(e). Nor did the redacted information relate to the disclosure of a confidential informant or the equivalent. Thus, the trial court did not depart from the essential requirements of the law in mandating the disclosure of the unredacted search warrants and applications to the defendant.

III. DISCLOSURE TO PUBLIC

A) THE STATE FAILED TO MEET ITS BURDEN FOR NON-DISCLOSURE

As to disclosure to third parties and the public, the state argues that the redacted information contains "surveillance techniques not widely known to the public." However, rule 2.420 does not recognize a surveillance technique exception. Nor is the "not widely known to the public" language found in section 119.071(2)(d), upon which the state now relies. Moreover, the state does not identify any grounds in the record upon which it bases it argument. In determining if closure is necessary "an evidentiary hearing should be held and findings of fact should be recorded by the judge in his order granting or refusing closure." Miami Herald Pub. Co. v. Lewis , 426 So.2d 1, 7-8 (Fla. 1982). In this case, the state did not offer any evidence that the redacted information contained "surveillance techniques" under section 119.071(2)(d) nor did the state demonstrate that the alleged surveillance techniques were "not widely known." Therefore, there is no record upon which the state can rely. The state is simply advancing an "it is because I say it is" position. This sort of ipse dixit reasoning is insufficient to support a finding that the trial court's ruling was an abuse of discretion, much less a departure from the essential requirements of law.

Under the Lewis three-prong balancing test:

Those who seek closure of a pretrial proceeding (or a restraint operating as a closure), must first provide an adequate basis to support a finding that closure is necessary to prevent a serious and imminent threat to the administration of justice. Second, those seeking closure are required to show that no less restrictive alternative measures than closure are available for this purpose. Third, those seeking closure must demonstrate that there is a substantial probability that closure will be effective in protecting against the perceived harm.

Morphonios , 467 So.2d at 1029 (footnote omitted).

As the party seeking "a restraint operating as a closure,"see id. , the burden remained on the state to justify closure. Barron v. Fla. Freedom Newspapers, Inc. , 531 So.2d 113, 116 (Fla. 1988) ; Lewis , 426 So.2d at 8. The state has not demonstrated an abuse of discretion in that no trial court would have ruled the way this trial court has. After reviewing the redacted information in camera, the trial court found: "The state made arguments that there is a need to protect law enforcement techniques so they do not become common knowledge thus thwarting the investigative means. However, no testimony or evidence was presented to support why this is a compelling government interest ." (emphasis added). Likewise, there was no testimony or evidence presented to support the state's argument that the redacted information involved privileged surveillance techniques.

The trial court's finding constitutes a factual determination based on the evidence submitted to the court and a further finding that the state did not meet its burden to establish a grounds for closure. See id. Since an appellate court may not "substitute its judgment for that of the trial court on questions of fact," we are compelled to accept the trial court's factual determination based on the evidence that the state presented to it. Blanco v. State , 702 So.2d 1250, 1252 (Fla. 1997) (citation omitted).

B. RULE 2.420, NOT CHAPTER 119, APPLIES

To implement article I, section 24(a) of the Florida Constitution, the supreme court adopted Florida Rule of Judicial Administration 2.051, which has since been renumbered to rule 2.420. Rule 2.420, which governs public access to judicial branch records, provides that "[t]he public shall have access to all records of the judicial branch of government" except in limited circumstances. Fla. R. Jud. Admin. 2.420(a). Under this rule, "[c]opies of arrest and search warrants and supporting affidavits retained by judges, clerks, or other court personnel" "shall be confidential" "until execution of said warrants ." Fla. R. Jud. Admin. 2.420(c)(6) (emphasis added). Significantly, the search warrants in this case have already been executed.

Rule 2.420(c)(1)-(6) enumerates specific judicial branch records which are confidential; the records here are not such records. Additionally, rule 2.420(c)(9)(A) recognizes the following judicial records as confidential:

(9) Any court record determined to be confidential in case decision or court rule on the grounds that
(A) confidentiality is required to
(i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice;
....
(iii) protect a compelling governmental interest;
....
(vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law[.]

Even where one of these factors under (9)(A) is present, "the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary" and there must be "no less restrictive measures ... available to protect the interests." Fla. R. Jud. Admin. 2.420(c)(9)(B), (C).

Among these exceptions, in the proceedings below, the state argued only that redaction was necessary to protect "a compelling governmental interest," without presenting any evidence in support of its position. The trial court, after reviewing the redacted information in camera, made a factual determination that the redacted information did not fall within these disclosure exceptions. As previously noted, the trial court did not abuse its discretion in making this determination based on the record before it.

In its petition, the state relies heavily on chapter 119. However, chapter 119 is inapplicable because this case does not involve an agency public records request. Neither the defendant nor The Palm Beach Post made any public records request to an agency. The Post filed only a motion to intervene in the trial court proceedings. Section 119.011 defines "[a]gency" as:

any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

Article II, section 3 of the Florida Constitution provides: "The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein." Thus, under the separation of powers doctrine, only the judiciary has the inherent power to maintain its records and to determine the manner to access these records. See Times Publ'g Co. v. Ake , 660 So.2d 255, 257 (Fla. 1995) ; Locke v. Hawkes , 595 So.2d 32, 36-37 (Fla. 1992).

Access to judicial branch records is governed by the rules and decisions of the Florida Supreme Court, not Chapter 119, Florida Statutes. Ake , 660 So.2d at 257. In Locke , the supreme court held that the legislature was not an agency which is subject to the Public Records Act. 595 So.2d at 37. In Ake , the supreme court expanded its holding in Locke and held that court records maintained by the clerk of the circuit court are not subject to the inspection and copying requirements of chapter 119. 660 So.2d at 255. As the Ake court explained:

[T]he clerks of the circuit courts, when acting under the authority of their article V powers concerning judicial records and other matters relating to the administrative operation of the courts, are an arm of the judicial branch and are subject to the oversight and control of the Supreme Court of Florida, rather than the legislative branch. We should emphasize that this Court has exercised its authority and directly addressed its responsibility in this area. In Barron v. Florida Freedom Newspapers, Inc. , 531 So.2d 113 (Fla. 1988), and Miami Herald Publishing Co. v. Lewis , 426 So.2d 1 (Fla. 1982), we made clear that court records are presumed open and set forth standards for exemptions. In In re Amendments to Rule of Judicial Administration 2.051-Public Access to Judicial Records , 651 So.2d 1185 (Fla. 1995), this Court recently implemented article I, section 24, of the Florida Constitution, by setting forth the openness of court records, the standards for exemptions, and, in an extensive commentary, an explanation of the rule's application.

Id. at 257. See also WFTV, Inc. v. Wilken , 675 So.2d 674, 676 (Fla. 4th DCA 1996) (" Ake stands for the proposition that access to judicial records under the clerk's control is governed exclusively by the supreme court."). Cf. Rameses, Inc. v. Demings , 29 So.3d 418, 420 (Fla. 5th DCA 2010) (applying chapter 119 in the context of a public records request to the sheriff, an agency under chapter 119).

The state conflates records that are exempt under chapter 119 with records that are confidential under rule 2.420. The state relies on section 119.071(2)(d), which states: "Any information revealing surveillance techniques or procedures or personnel is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution." Contrary to the state's suggestion, the judiciary has not adopted section 119.071(2)(d) via rule 2.420(c).

Chapter 119 speaks to both "exempt" records and records which are "confidential and exempt." Section 119.071(2)(d) only makes surveillance techniques exempt , not confidential and exempt. In contrast, rule 2.420(c)(9)(A) adopts certain laws pertaining to confidential records. Therefore, it does not adopt section 119.071(2)(d).

There is a difference, in the context of chapter 119, between exempt information and confidential information:

If information is made confidential in the statutes, the information is not subject to inspection by the public and may only be released to the persons or organizations designated in the statute.... If records are not confidential but are only exempt from the Public Records Act, the exemption does not prohibit the showing of such information.

WFTV, Inc. v. Sch. Bd. of Seminole , 874 So.2d 48, 53-54 (Fla. 5th DCA 2004).

Further, rule 2.420 contains specific references to chapter 119 when exemptions under that chapter apply. See Fla. R. Jud. Admin. 2.420(d)(1)(B), 2.420(d)(1)(B)(iii), (xiii). Had rule 2.420(c) intended to incorporate section 119.071(2)(d), it would have included a specific reference to that section. Courts are guided by the principle that "[n]othing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus est ). That is, a matter not covered is to be treated as not covered." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012). "Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. [The judge] must not read in by way of creation." Id. (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes , 47 Colum. L. Rev. 527, 533 (1947) ) (alterations in original). See also Coral Cadillac, Inc. v. Stephens , 867 So.2d 556, 558-59 (Fla. 4th DCA 2004) ("[W]hen a law expressly describes a situation where something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded."); Overstreet v. Blum , 227 So.2d 197, 198 (Fla. 1969) (stating that a statute adopts another statute by specifically referring to the first statute).

Even accepting the state's interpretation that chapter 119 applies to this case-which it does not-certiorari relief still would be improper. "[I]t is not the purpose of an in camera inspection for the court to decide whether there are sufficient reasons to release requested information, but rather to decide whether there are sufficient reasons not to release it." Tribune Co. v. Pub. Records, P.C.S.O. No. 79-35504 Miller/Jent , 493 So.2d 480, 484 (Fla. 2d DCA 1986). The state here has not demonstrated sufficient reasons not to release the documents.

"The general purpose of the Public Records Act (Chapter 119, Florida Statutes (1995) ), is to open public records to allow Florida's citizens to discover the actions of their government." Christy v. Palm Beach Cty. Sheriff's Office , 698 So.2d 1365, 1366 (Fla. 4th DCA 1997). "Florida courts construe the public records law liberally in favor of the state's policy of open government. If there is any doubt about the application of the law in a particular case, the doubt is resolved in favor of disclosing the documents." Nat'l Collegiate Athletic Ass'n v. Associated Press , 18 So.3d 1201, 1206 (Fla. 1st DCA 2009) (citations omitted).

As the state correctly recognizes, once the state gives information to the defendant in compliance with pretrial discovery criminal rules, the disclosed information "attains the status of a public record." Post-Newsweek Stations, Fla. Inc. v. Doe , 612 So.2d 549, 553 (Fla. 1992). However, the state also relies on Post-Newsweek for the proposition that "[d]iscovery is not intended to be a vehicle for the media to use in its search for newsworthy information." Id. The state's reliance on Post-Newsweek is misplaced inasmuch as it involves chapter 119 rather than section 2.420.

Additionally, Post-Newsweek recognized that the public's right to discovery materials may be limited where discovery "seriously implicate[s] privacy interests of litigants and third parties ." Id. (emphasis added) (citation omitted). In this case, no privacy interest of litigants or third parties is implicated. Post-Newsweek further recognized "that this state's open government policy requires that information be available for public inspection unless the information fits under a legislatively created exemption." Id. Here, the state did not demonstrate that the redacted information fits under any exemption. Cf. Executive Office of the Governor v. AHF MCO of Fla., Inc. , 43 Fla. L. Weekly D2410 (Fla. 1st DCA Oct. 29, 2018) (finding, based on an undisputed sworn affidavit of an FDLE agent, that release of information pertaining to the governor's detailed schedule and travel plans would compromise the governor's safety and security).

C. PUBLIC'S COMMON LAW RIGHT TO ACCESS SEARCH WARRANT MATERIALS

"[A]ll trials, civil and criminal, are public events and there is a strong presumption of public access to these proceedings and their records, subject to certain narrowly defined exceptions." Barron , 531 So.2d at 114 (emphasis omitted). "The reason for openness is basic to our form of government. Public trials are essential to the judicial system's credibility in a free society." Id. at 116.

Article I, section 24(a) of the Florida Constitution codifies the public's right to access judicial records and states:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

The Florida Supreme Court implemented this constitutional provision by enacting what is now rule 2.420. Thus, rule 2.420 is a codification of the common law right of access to public records. See In re Amendments to Fla. Rule of Judicial Admin. 2.420-Sealing of Court Records & Dockets , 954 So.2d 16, 21 (Fla. 2007) (stating that "individualized sealing orders must meet the test first defined in Barron and subsequently codified in rule 2.420").

The United States Supreme Court has generally recognized that the public and press have a First Amendment right of access to criminal proceedings. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) ; Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) ; Press-Enter. Co. v. Superior Court of Cal., Riverside Cty. , 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (" Press-Enterprise I "); Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty. , 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (" Press-Enterprise II "). Openness of judicial processes "gives assurance that established procedures are being followed and that deviations will become known." Press-Enterprise I , 464 U.S. at 508, 104 S.Ct. 819.

Courts in general have recognized the right to access search warrant documents as being firmly rooted in our history. In Entick v. Carrington , 19 How. St. Tr. 1029 (C.P. 1765), Lord Camden found general warrants illegal because of their lack of checks, such as requiring an inventory of items taken. As Justice Thomas noted in City of West Covina v. Perkins , 525 U.S. 234, 247, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999), the failure to adhere to the procedures mandated in the execution of search warrants "profoundly influenced the Founders' view of what a 'reasonable' search entailed." Thus, the formalities of the execution of a search warrant, including the filing of an inventory and the return of service, are part of the architecture of a properly executed search warrant.

Further, in Nixon , the United States Supreme Court recognized the existence of a "common-law right of access to judicial records." 435 U.S. at 596, 98 S.Ct. 1306. The Court acknowledged "a general right to inspect and copy public records and documents, including judicial records and documents." Id. at 597, 98 S.Ct. 1306 (footnote omitted). As a general rule, judicial records are to be open to the public, in part so that citizens may "keep a watchful eye on the workings of public agencies." Id. at 598, 98 S.Ct. 1306. See also Baltimore Sun Co. v. Goetz , 886 F.2d 60, 64-65 (4th Cir. 1989) (finding a common law right to access search warrant affidavits); accord In re Newsday , 895 F.2d 74 (2d Cir. 1990). Thus, in this case, the public has a common law right to access the search warrant documents.

Judge Conner's opinion states that the "Florida Constitution and the implementing statutes override the common law." In fact, the constitutional provision and the pertinent rules such as rule 2.420 do not override or supplant the common law as to access to court files, but rather assist its implementation by institutionalizing transparency in the Florida Constitution and the rules ensuring public access to judicial records.

"Public access to warrant materials serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police." In re Application of New York Times Co. for Access to Certain Sealed Court Records , 585 F.Supp.2d 83, 90 (D.D.C. 2008) (citing United States v. Leon , 468 U.S. 897, 917 n.18, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ). "[W]arrant materials are often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable searches and seizures." Id. "[P]ublic access to documents filed in support of search warrants is important to the public's understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct." In re Search Warrant for Secretarial Area Outside Office of Gunn , 855 F.2d 569, 573 (8th Cir. 1988).

In a free society governed by our constitutional framework, the default should be for transparency and disclosure. That is not to say that the state may not have compelling reasons to prevent disclosure. Far from it. In a time of security challenges, the state may request orders to prevent public disclosures. But the burden remains on the state to demonstrate, by evidence, that there is a compelling reason to inhibit the public from knowing.

For all the above reasons, we deny the petition.

Petition denied.

Gerber, C.J., concurs in part with opinion.

Conner, J., concurs in part and dissents in part with opinion.

Gerber, C.J., concurring in part.

I concur with sections I., II., and III.A. of Judge Levine's opinion. However, I believe the analysis can, and therefore should, stop there. Thus, I do not join in sections III.B. and III.C of the opinion.

CONNER, J., concurring in part and dissenting in part.

I concur with the analyses and appellate conclusions in Sections I and II of the majority opinion. I also concur with the appellate conclusion in Section III A. that the record shows the State failed to demonstrate that the redacted surveillance techniques were "not widely known," and thus, the trial court properly authorized disclosure to the public. However, as to Sections III A., B., and C., my understanding of the law is different from Judge Levine and I disagree with a substantial portion of the legal analysis in those sections. Primarily, I disagree with the premise that Chapter 119 does not apply to the analysis of this case. I first discuss my disagreement with Sections III A. and B., then my disagreement with Section III C., and end with a conclusion.

Sections III A. and B.

In my view, by adopting rule 2.420, our supreme court intended for the judiciary to follow the system of public records disclosure and exemption requirements established by the Florida Legislature for the other two branches of government in Chapter 119, in general, and various other statutes addressing specific subject matters. As a separate and coequal branch of government, the judiciary has the constitutional right to adopt a system of rules for public records of the branch that can be different from the other two branches of government. But in my view, the supreme court embraced the value of consistency in the application of the law across the three branches, to the extent it is practical to do so, when it adopted rule 2.420.

As Judge Levine points out, rule 2.420(c)(9) recognizes the following judicial records as confidential:

(9) Any court record determined to be confidential in case decision or court rule on the grounds that
(A) confidentiality is required to:
....
(iii) protect a compelling governmental interest; [or]
....
(vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law[.]

Fla. R. Jud. Admin. 2.420(c)(9). Significantly, rule 2.420(f) allows a litigant to file a motion to determine the confidentiality of court records. Rule 2.420(f)(3) specifically authorizes a motion and hearing procedure for a confidentiality determination under rule 2.420(c)(9)(A)(iii) (compelling governmental interest) and 2.420(c)(9)(A)(vii) (established public policy set forth in Florida Statutes). Thus, when reading rule 2.420(c)(9) and (f)(3) together, it appears to me that in making a decision in response to a 2.420(f)(3) motion as to whether a court record should be deemed confidential at the request of a party, the trial court should declare a record to be confidential if such is required to "protect a compelling governmental interest" is demonstrated or to "comply with established public policy set forth in the Florida ... statutes."

I agree with Judge Levine that there is a difference between exempt records and confidential records. Section 119.071, Florida Statutes, is designed to give an agency the discretion to assert a public record exemption. However, in certain instances, the legislature has taken that discretion away, and declared, statutorily, that certain records are confidential. See § 119.071(h), Fla. Stat. (2018) (identifying records which are "confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution") (emphasis added).

I agree with Judge Levine that under section 119.071(d), surveillance techniques are exempt, and not statutorily confidential. § 119.071(d), Fla. Stat. (2018) ("[a]ny information revealing surveillance techniques or procedures or personnel is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution"). However, because rule 2.420 is designed to allow an agency to assert an exemption, if asserted, the court system should honor the exemption and declare a record confidential, if a compelling governmental interest is shown or if the established public policy, as declared by the legislature, requires that confidentiality be maintained. That said, trial judges must also keep in mind that a statute can be trumped by constitutional rights, such as due process. In this case, the constitutional right to due process, as provided for in our criminal discovery rules, trumps confidentiality regarding disclosure of the redacted information to the defendant. I contend the public does not hold a similar trump card.

In my view, a strong statement of public policy in statutes can establish a compelling governmental interest. Section 119.071(2)(d) makes a clear legislative statement of public policy that "[a]ny information revealing surveillance techniques or procedures or personnel is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution." § 119.071(2), Fla. Stat. (2018) (emphasis added). Additionally, section 119.0714(1)(c), Florida Statutes (2018) provides:

(1) Court files .-Nothing in this chapter shall be construed to exempt from s. 119.07(1) a public record that was made a part of a court file and that is not specifically closed by order of court, except :
....
(c) Any information revealing surveillance techniques or procedures or personnel as provided in s. 119.071(2)(d) .

§ 119.0714(1)(c), Fla. Stat. (2018) (emphases added). The fact that the legislature has exempted the disclosure of surveillance techniques in at least two statutes, presents a compelling argument that the court system should determine such information in court records to be confidential and not subject to public disclosure.

Section III C.

My problem with Section III C. of Judge Levine's opinion is that it cites and quotes Article I, section 24(a) of the Florida Constitution, but fails to address section 24(c) of Article 1. Section 24 (c) specifically allows the legislature to provide for exemptions by general law. Art. I, § 24(c), Fla. Const. ("The legislature, however, may provide by general law ... exemption of records from the requirements of subsection (a)."). Thus, it appears to me that the Florida Constitution and the implementing statutes override the common law. If my analysis above is correct ( rule 2.420 was intended to mirror the exemptions in Chapter 119), then to the extent rule 2.420 is a codification of Article I, section 24, the rule likewise supplants the common law concerning the right of access to public records of the judiciary, including warrants.

Conclusion

The State in this case moved to block disclosure of the redacted information by asserting redaction was necessary to protect a compelling governmental interest. As discussed in Section I of the majority opinion, the State failed to preserve in the trial court the arguments raised in the certiorari petition regarding the surveillance technique exemption authorized in section 119.071(2)(d). In addition, the State failed to present proof that the redacted information was not widely known by the public. In the trial court, the State had multiple opportunities for making winning arguments to block the disclosure of the redacted information to the public. Our review of the record in light of all the exemptions listed in section 119.071 reveals there are other exemptions the State could have asserted besides the surveillance technique exception. The State failed to raise those arguments in the trial court. Additionally, the State failed to make arguments in the trial court connecting the interplay of Chapter 119 with rule 2.420. In short, the State has failed to demonstrate the trial court departed from the essential requirements of law.

      The record does not explain why the executed search warrants and related documents were not immediately filed with the court as required by law.

      Although not explicitly argued, there is a difference between "surveillance techniques" and "investigative techniques." Most criminal cases include "investigative techniques" of some variety, while "surveillance techniques" are less frequently utilized and are more particularized. See United States v. Ramirez-Encarnacion , 291 F.3d 1219, 1222 n.2 (10th Cir. 2002) (stating that traditional investigative techniques include "(1) standard visual and aural surveillance; (2) questioning and interrogation of witnesses or participants (including the use of grand juries and the grant of immunity if necessary); (3) use of search warrants; and (4) infiltration of conspiratorial groups by undercover agents or informants" as well as "[p]en registers and trap and trace devices").


author: Warner, J.

text:
    Srinath SUBRAMANIAN, Appellant, v. Veena SUBRAMANIAN, Appellee.
    Nos. 4D17-3400 4D17-3603 4D18-268
    District Court of Appeal of Florida, Fourth District.
    [December 5, 2018]
    Lori D. Shelby of the Law Office of Lori D. Shelby, Fort Lauderdale, for appellant.
    Terrence P. O'Connor of Morgan, Carratt & O'Connor, P.A., Fort Lauderdale, for appellee.
   Warner, J.

Appellant, former husband, challenges the trial court's final judgment awarding attorney's fees to the former wife and guardian ad litem, which award was based upon the appellant's vexatious litigation. The trial court determined the entitlement to fees in the final judgment of dissolution of marriage after a contentious ten-day trial where appellant represented himself. It awarded fees against the appellant, relying on Mettler v. Mettler , 569 So.2d 496 (Fla. 4th DCA 1990) and Rosen v. Rosen , 696 So.2d 697 (Fla. 1997). We affirm.

Appellant contends that his due process rights were violated because he was not given notice that the court would determine entitlement to attorney's fees during the trial on the dissolution. We disagree that he was denied due process. First, the order setting the case for trial identified attorney's fees as an issue at trial. Second, even if the order was not specific to the continued trial date, both in opening and closing argument, the former wife requested fees based upon vexatious litigation. Furthermore, both parties addressed entitlement to fees in closing argument. In addition, during his case, the husband called his former attorney to address the scope of litigation, thus addressing the issue of vexatious litigation. Third, although he points to the court's statement that it would deal with the multiple motions for attorney's fees at the end, it appears to us that these comments were directed to whether the attorneys should testify in the dissolution trial as to the services rendered for the amount of fees, not entitlement. Thus, at the very least, the issue of entitlement was tried by implied consent. See D.J. v. Dep't of Children and Families , 9 So.3d 750, 755 (Fla. 2d DCA 2009) (finding because parties argued the contested issue during closing arguments and the opposing party did not object to evidence on the issue, the issue was tried by implied consent, and the party's due process rights were not violated). No fundamental due process error occurred.

We affirm as to the remaining issues. With respect to the final calculation of attorney's fees and costs in the order granting fees to the former wife, there was a scrivener's error in the column assessing fees to the appellant. While the court ordered that the appellant pay sixty percent of the wife's fees and costs, the figure in the husband's column for the wife's trial attorney represents the entire fee. However, the ultimate amount that the husband was ordered to pay-$347,216.25-is sixty percent of all fees, including the appellate fees due to the wife's attorney. Thus, on remand the court should correct the clerical error in the judgment.

Affirmed and remanded for correction of judgment.

Damoorgian and Kuntz, JJ., concur.


author: Per Curiam.

text:
    STATE of Florida, Appellant, v. Dominique WRIGHT, Appellee.
    No. 4D18-856
    District Court of Appeal of Florida, Fourth District.
    [December 5, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellee.
   Per Curiam.

The State of Florida appeals from an order on resentencing of a juvenile, in which the trial court declined to impose a mandatory minimum sentence for discharging a firearm, ruling that it would be contrary to individualized consideration required by U.S. Supreme Court cases. The court declared section 775.087, Florida Statutes, the statute requiring a mandatory minimum, unconstitutional as applied to the appellee. In Martinez v. State , 256 So. 3d 897 (Fla. 4th DCA Oct. 10, 2018), we held that the imposition of mandatory minimum sentences on juveniles does not violate Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) and Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). See also Young v. State , 219 So.3d 206 (Fla. 5th DCA 2017). We thus reverse the trial court's order and appellee's sentence.

In his answer brief, appellee contends that section 921.1401, Florida Statutes, requiring individualized sentencing consideration for juveniles and periodic reviews, supersedes section 775.087, requiring mandatory minimum penalties. We disagree and align ourselves with the reasoning in Montgomery v. State , 230 So.3d 1256 (Fla. 5th DCA 2017), which harmonized the two statutes:

Reading the juvenile sentencing statutes and the 10-20-Life statute in pari materia , the following sentencing scheme emerges for nonhomicide juvenile offenders. Under section 775.082(3), the court must provide a nonhomicide juvenile offender, who is convicted of certain serious offenses, an individualized sentencing hearing. If the nonhomicide juvenile offender is sentenced to more than twenty years, the court must provide a judicial review after twenty years, pursuant to section 921.1402(2)(d), to afford him or her a meaningful opportunity to obtain early release. However, if the nonhomicide juvenile offender, in the course of committing certain enumerated felonies, discharged a firearm and as the result of the discharge, inflicted death or great bodily harm, the juvenile must be sentenced to a twenty-five-year mandatory minimum. § 775.087(2), Fla. Stat. (2012). Nonetheless, he or she would still be entitled to a twenty-year statutory review of his or her sentence under section 921.1402(2)(d) with the possibility of early release. See generally Gridine v. State , 175 So.3d 672, 675 (Fla. 2015) (reversing juvenile nonhomicide offender's aggregate seventy-year sentence with twenty-five-year mandatory minimum because it failed to provide defendant with judicial review, and thereby, meaningful opportunity for future release). At that judicial review, after considering the enumerated factors of section 921.1402(6) along with any other factor it deems appropriate to review the juvenile's sentence, the sentencing court is authorized to modify the sentence and impose a term of probation of at least five years if the court determines modification is warranted. § 921.1402(7), Fla. Stat. (2014).

Id. at 1262-63.

Thus, after the individualized sentencing proceeding, the trial court is required to impose the mandatory minimum sentence under section 775.087. However, the juvenile is still entitled to review after twenty years, when the sentence may be modified in accordance with the statutory process.

Reversed and remanded for resentencing.

Gerber, C.J., Warner and Forst, JJ., concur.


text:
    Marcelo SANTURIAN and Elena Dussaq, Appellants, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a Christiana Trust, etc., Appellee.
    No. 3D17-1057
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Neustein Law Group, P.A. and Nicole R. Moskowitz, for appellants.
    Burr & Forman, LLP, Adam J. Knight and Jacqueline Simms-Petredis (Tampa), for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Sabido v. Bank of N. Y. Mellon, 238 So.3d 867 (Fla. 4th DCA 2018) ; Fla. Cmty. Bank, N.A. v. Red Road Residential, LLC, 197 So.3d 1112 (Fla. 3d DCA 2016).


text:
    Willie ROGERS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1351
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018.
    Willie Rogers, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

ON ORDER TO SHOW CAUSE

On August 1, 2018, this court issued an opinion denying Willie Rogers' petition for a writ of habeas corpus. Our opinion included an order directing Rogers to show cause why he should not be prohibited from filing further pro se appeals, motions or other pleadings related to Eleventh Judicial Circuit court case number F93-28436C. On August 22, 2018, Rogers filed his response to the order to show cause, incorporated in his motion for rehearing and clarification. The motion for rehearing and clarification is denied. In sum, Rogers claims that he cannot be denied the right to file a petition for writ of habeas corpus at any time if he has no other way to challenge his conviction and sentence and goes on to challenge his conviction and sentence, yet again, based on issues that should have been raised in a motion for post-conviction relief in a timely Florida Rules of Criminal Procedure rule 3.850 motion. We conclude that he has failed to show sufficient good cause to convince us to allow him to continue to file pro se appeals, petitions, motions or other pleadings in case number F93-28436C.

Having provided Rogers with an opportunity to respond to our order to show cause, we now prohibit him from filing any further pro se appeals, petition, motions, or other pleadings challenging his conviction and sentence in Eleventh Judicial Circuit court case number F93-28436C. See State v. Spencer, 751 So.2d 47 (Fla. 1999) and Concepcion v. State, 944 So.2d 1069 (Fla. 3d DCA 2006). We direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to the specified circuit court case number unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing. See Whipple v. State, 112 So.3d 540 (Fla. 3d DCA 2013).

Additionally, any such further and unauthorized pro se filings by Rogers may subject him to appropriate sanctions, including the issuance of written findings forwarded to the Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017).


author: ROTHENBERG, C.J.

text:
    Rochelle DRIESSEN, Appellant, v. UNIVERSITY OF MIAMI SCHOOL OF LAW CHILDREN AND YOUTH LAW CLINIC, Appellee.
    No. 3D18-999
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Rochelle Driessen, in proper person.
    Klein Glasser Park & Lowe, P.L., and Robert M. Klein and Andrew M. Feldman, Miami, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
   ROTHENBERG, C.J.

Rochelle Driessen, the mother of Brittany Oliver ("Brittany"), a developmentally disabled person, appeals the trial court's final order dismissing with prejudice her second amended complaint for legal malpractice against the University of Miami School of Law Children and Youth Law Clinic ("the Clinic") for failure to state a cause of action. Because Ms. Driessen is not Brittany's legal guardian, did not retain the Clinic to represent Brittany or the co-legal guardians (Brittany's sister and Brittany's grandfather), and was not and is not the intended beneficiary of the Clinic's representation of the legal guardians, we find no error and affirm.

Ms. Driessen's complaint for legal malpractice against the Clinic, which represents Brittany's legal guardians, not Ms. Driessen, is based on her disagreement with the characterization of Brittany's disability in the verified Petition for Appointment of Co-Guardian Advocates, her disagreement with the educational program Brittany is enrolled in, and the failure of the Clinic to provide Ms. Driessen with notice of the evidentiary hearing held on March 11, 2014, wherein Brittany's co-legal advocates were appointed. However, as the trial court correctly found, because Ms. Driessen is not the Clinic's client or the intended beneficiary of the Clinic's relationship with the guardians, the Clinic owes no duty to Ms. Driessen. See Angel, Cohen & Rogovin v. Oberon Inv. N.V., 512 So.2d 192, 194 (Fla. 1987) (noting that an attorney's liability for negligence in the performance of his or her professional duties is generally limited to clients with whom the attorney shares privity of contract); Dingle v. Dellinger, 134 So.3d 484, 487 (Fla. 5th DCA 2014).

The exception to this general rule requiring privity of contract between the client and attorney is when the plaintiff is the intended third-party beneficiary of the services performed by the attorney. Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378, 1380 (Fla. 1993) ; Dingle, 134 So.3d at 487-88. The ward, which in this case is Brittany, not the ward's next of kin, is the intended beneficiary of the attorney's services. See Saadeh v. Connors, 166 So.3d 959, 964 (Fla. 4th DCA 2015) (finding that the well-being of the ward is "the very essence" of our guardianship statutes, and both the attorney and the guardian are ethically obligated to protect the interest of the ward); Zelman v. Zelman, 175 So.3d 871, 879 (Fla. 4th DCA 2015) ("The whole purpose of a guardianship proceeding is to protect the ward's interests.").

While Ms. Driessen, as Brittany's next of kin, may have legitimate concerns regarding some of the decisions made by Brittany's guardians, those concerns do not provide her with the standing to sue the Clinic for legal malpractice in its representation of her daughter's guardians. We, therefore, affirm the dismissal, with prejudice, of Ms. Driessen's second amended complaint for legal malpractice against the Clinic.

Affirmed.