author: TAYLOR, J.

text:
    Curt John DYER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2902.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant was accused of stealing videos from an adult video store. The main incriminating evidence presented at his grand theft trial was the testimony of the store manager regarding the content of a surveillance recording. Because the trial court reversibly erred in admitting this testimony, in violation of the best evidence rule, we reverse the defendant’s conviction and sentence.

The state’s first witness at trial was Jacqueline Vega. Vega testified that on March 29, 2007, she was the acting night manager at University Video, an adult video and novelty shop in Lauderhill. Vega was working with Stacey Melvin, a sales clerk. The defendant entered the store around midnight. Vega, who recognized him from his visit there a week before, saw the defendant browsing through the DVD section located in the front-right side and in the back of the store. At that time he was the only customer in the store. The defendant remained in the store for about thirty to forty-five minutes. During that time, Vega and the defendant engaged in small talk. At no time did Vega ever see the defendant do anything to conceal, stash, or take away any of the stores videos. She did not realize any were missing until the next day when the manager called. Roughly a hundred people came in and out of University Video that night.

The defendant had previously purchased DVDs from University Video. That night he wanted to open up a rental account. He presented some DVDs to Stacey Melvin and applied for a rental membership account. He gave Melvin his driver’s license and a credit card. When his credit card was declined, he gave Melvin another one, which was also declined. Vega and Melvin told the defendant that they would keep his information on file and that he could return to the store another time to apply for membership.

The defendant started to leave but then told Vega that he had left his cell phone in the store. When Vega tried to locate it for him by dialing his phone number, the call went to voicemail. Somewhere near the “EA” DVD section the defendant found his phone and picked it up. He then left the store. Vega never observed him take anything from the store. He did not rent any DVDs or carry out any bags or merchandise in his hands.

The next morning, the store manager of University Video, William Beach, opened the store and discovered about thirty empty DVD cases on shelves in the back of the store. The plastic cases had been opened and the DVDs removed from them. Beach explained that the DVD cases had been locked and could be opened only with a key. Over a foundation objection, the state introduced the key into evidence. Beach testified that the keys are ordered from a supply store. He testified that he saw no sign of forced entry into the store and found no misplaced key that was used to open the locked DVD cases. According to Beach, the value of the stolen videos was $973.60.

Detective Andrew Kiefer was assigned to investigate the thefts from the video store. The store had a surveillance system of thirteen cameras mounted in the ceiling. They were aimed at high-theft areas of the store, mainly in corners not clearly visible to employees stationed at the counter. The cameras recorded one frame every few seconds. Beach turned the surveillance video over to Detective Kiefer during his investigation. The trial court admitted the surveillance video into evidence but sustained the defendant’s objection to the detective’s testimony about what he saw on the video.

During Beach’s testimony the state was given permission to publish the contents of the surveillance DVD. The state, however, had some technical problems with the video and asked for a brief recess to call its IT technician. Shortly thereafter, the state told the court, “It seems like it is not going to happen. I will move on without it.”

The state then questioned Beach about what he saw on the videotape. Defense counsel objected to Beach’s testimony about his observations of the video’s contents. After the court overruled the objection, the manager testified, “The defendant was on the video in the back comer of our store farther back opening the DVD boxes and putting the DVDs into his pocket.” When Beach testified that he assumed the defendant had a key to open the cases, the trial court sustained the defendant’s speculation objection. But Beach was allowed to testify that the video depicted the defendant crouching down and looking repeatedly at the counter as if he were “very concerned where the girls were in the store.” At that point, defense counsel asked for a sidebar and advised the court that the video did not actually show what the witness claimed.

The trial court granted another recess for the state to contact its IT department. When court resumed, the state resolved its technical problems and published the surveillance recording to the jury. The state did not elicit any further testimony from Beach. After the state rested, the trial judge' viewed the surveillance video but denied the defendant’s motion for a judgment of acquittal.

The defendant took the stand and denied stealing anything from the store. He explained that he was searching the shelves for DVDs to rent and that he occasionally crouched down to either pick up his cell phone or to look at DVDs on the lower shelves. He testified that he did not realize there was a problem until he was applying for a job in California and an arrest warrant appeared on his background check. The jury returned a verdict finding the defendant guilty of grand theft. The trial court placed him on five years of probation and ordered him to pay restitution to University Video.

On appeal, the defendant argues that the trial court erred in overruling his objection to the store manager’s testimony concerning the content of the surveillance recording. He contends that admitting this testimony violated the best evidence rule. We agree.

While the admission of evidence is within the trial court’s discretion, that discretion is limited by the rules of evidence. Eliakim v. State, 884 So.2d 57 (Fla. 4th DCA 2004). The “best evidence rule,” codified in section 90.952, Florida Statutes (2008), is titled, “Requirement of originals.” It provides:

Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording or photograph.

While this is commonly known as the “best evidence rule,” see State v. Eubanks, 609 So.2d 107, 109 (Fla. 4th DCA 1992), that term appears nowhere in the statute.

Although duplicates are acceptable in most cases, see § 90.953, Fla. Stat. (2008), the admissibility of “other evidence” of the contents of a “writing, recording, or photograph” is governed by section 90.954, titled “Admissibility of other evidence of contents.” It provides:

The original of a writing, recording, or photograph is not required, except as provided in s. 90.953, and other evidence of its contents is admissible token:
(1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.
(2) An original cannot be obtained in this state by any judicial process or procedure.
(3) An original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing.
(4) The writing, recording, or photograph is not related to a controlling issue.

None of the enumerated exceptions apply here. The state’s inability to show the video recording due to temporary technical difficulties does not qualify the DVD as being “lost or destroyed” within the meaning of the statute. Further, the contents of the surveillance video were matters directly in issue. The trial court thus erred in admitting Beach’s testimony concerning the contents of the videotape. See Russell v. State, 844 So.2d 725 (Fla. 5th DCA 2003) (finding that the trial court erred in permitting a police officer to testify about the contents of a convenience store surveillance tape but finding the error harmless in light of the other evidence of guilt).

We disagree with the state’s contention that defense counsel’s objection to testimony about the video’s contents was inadequate to preserve the issue. To be preserved for appellate review, “an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So.2d 32, 35 (Fla.1985); see also Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). Here, although the defendant did not specifically name “the best evidence rule” as a basis for his objection, we conclude that he adequately presented the issue to the trial court by objecting to the witness’s testimony about the video’s contents. As we noted earlier, the Florida statutes regarding admission of the content of writings, recordings, or photographs are not titled or specifically referred to as the “best evidence rule.”

On the merits, the state argues that any error in allowing Beach’s testimony about what the tape depicted was harmless because the jury later had an opportunity to view the original tape recording for themselves. However, Beach’s questionable testimony that the tape showed the defendant engaged in criminal conduct may have predisposed the jury to view the tape as incriminating and contributed to their guilty verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (holding that the harmless error test places the burden on the state to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or that there is no reasonable possibility that the error contributed to the conviction). No witnesses testified to seeing the defendant remove or possess the stolen videos. Unlike the facts in Russell, here the video was not merely cumulative of other evidence; it was the state’s sole evidence against the defendant. We thus cannot find the error harmless.

Reversed and Remanded.

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

      . After viewing the surveillance video, which was included in the record on appeal, we were baffled by the state’s reliance on the video for its theory that the defendant opened thirty cases and hid thirty DVDs in his clothing in plain view of the surveillance camera. Our observation of what the video depicts more closely coincides with the defense's version:
      At various occasions, Appellant can be seen taking encased DVDs off the shelves, looking at the front and back of the case, and returning them to the shelves or holding one or two in his hand. Appellant is shown, from time to time, crouching toward the store’s floor in the area of the lower shelves. He is also shown to at times touch or pat the pockets of his pants, at times look away from tire shelves and toward another area of the store and at other times speak to a woman passing between the store aisles.
      Though the time-lapse makes the tape somewhat shaky and the resolution poor, at no point does the video show the defendant opening DVD cartridges (with a key or otherwise) or concealing anything on his person. He is seen only removing DVDs from the shelf, looking at them, and then putting them back.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WALTER TRANSPORT CORPORATION a Florida corporation d/b/a Palm Beach Medical Transport, Appellants, v. PALM BEACH METRO TRANSPORTATION, L.L.C., a Florida corporation, Palm Tran, Inc., a Florida corporation, and Palm Beach County, Florida, Appellees.
    No. 4D08-4842.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 2010.
    Charles Wender, Boca Raton, for appellants.
    Denise M. Nieman, Palm Beach County Attorney, and Andrew M. Pelino, Assistant County Attorney, West Palm Beach, for appellees.
   PER CURIAM.

Walter Transport Corporation appeals a final order dismissing with prejudice all counts directed to appellees Palm Tran, Inc., and Palm Beach County. On appeal, Walter Transport relies heavily on Technicable Video Systems, Inc. v. Americable of Greater Miami, Ltd., 479 So.2d 810 (Fla. 3d DCA 1985), which we deem distinguishable. The contract in that case did not have a provision stating that the intent of the parties was not to benefit third parties. Therefore, that contract had an unrebutted presumption that the parties intended to confer a benefit on the minority business enterprise. Here, in contrast, the main contract made clear that the parties did not intend to benefit any third party, and the subcontract between the County and Walter Transport reaffirmed this intent, thereby rebutting any presumption that the parties to the main contract intended to confer any benefit on Walter Transport.

Affirmed.

GROSS, C.J., WARNER and LEVINE, JJ., concur.


text:
    Paula J. PATTIO, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D09-644.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.
    Paula J. Pattio, Gainesville, pro se.
    Louis A. Gutierrez, Tallahassee, for Ap-pellee.
   PER CURIAM.

Paula Pattio appeals an order of the Unemployment Appeals Commission affirming the appeal referee’s finding that Ms. Pattio was disqualified from receiving benefits because she was discharged from employment for misconduct connected with work. As a result, she was denied unemployment benefits. We affirm.

The determination that an employee was terminated for good cause is a question of fact. Brown v. Unemployment Appeals Comm’n, 820 So.2d 457 (Fla. 5th DCA 2002). An appeal referee’s factual determination is ordinarily presumed to be correct. Smith v. Unemployment Appeals Comm’n, 823 So.2d 873 (Fla. 5th DCA 2002). Thus, if there is substantial competent evidence in the record to support the appeal referee’s findings, this Court must affirm. Brown, 820 So.2d at 458. The record before us fully supports the finding of the referee that Ms. Pattio was discharged from employment for good cause. We cannot reweigh the evidence. Accordingly, we affirm.

AFFIRMED.

ORFINGER, TORPY and LAWSON, JJ., concur.


author: VILLANTI, Judge.

text:
    Billy Dwayne GINN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5466.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2010.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Billy Dwayne Ginn appeals his convictions and sentences for two counts of uttering a forged document and two counts of grand theft, contending that the trial court should have granted his motion for judgment of acquittal because the State failed to prove that he had the requisite knowledge or intent to commit the charged crimes. We agree, and we reverse and remand for discharge.

Facts

The State charged Ginn with two counts of forgery, two counts of uttering a forged document, and two counts of grand theft based on allegations that he had cashed two forged American Express traveler’s checks at a Mr. Money check cashing store in November 2007. At trial, the State presented evidence that Ginn had been a customer of the Mr. Money store for approximately a year. On November 16, 2007, Ginn came into the store seeking to cash a $500 American Express traveler’s check. He presented his current driver’s license as identification and gave the clerk his current address. He did not appear nervous, and he did not try to conceal his identity in any way. The owner of the Mr. Money store, who had cashed “thousands” of traveler’s checks, believed that the traveler’s check Ginn presented was “absolutely legitimate” and cashed it.

Three days later, Ginn returned to Mr. Money with a second $500 American Express traveler’s check. He again presented his current driver’s license as identification and gave his current address. The owner again believed that the traveler’s check was legitimate and cashed it.

A few days later, Ginn returned to Mr. Money with a third $500 American Express traveler’s check. Even though this third traveler’s check appeared legitimate, because the two earlier traveler’s checks had not yet been honored by American Express, the owner refused to cash this third check, and she returned it to Ginn.

Subsequently, American Express notified Mr. Money that the two traveler’s checks it had cashed were forgeries. Mr. Money’s owner then notified the police. The police collected the two traveler’s checks and the photocopies of Ginn’s identification that he had provided to Mr. Money. The police attempted to obtain fingerprints from the traveler’s checks, but they were unable to obtain any prints of value. Each of the police officers who saw the traveler’s checks Ginn cashed testified that they looked legitimate.

The State also called an agent from the Global Security Division of American Express, Ms. Kenerson, to testify concerning the traveler’s checks. Ms. Kenerson testified that the traveler’s checks were “fairly good” replicas that would appear legitimate to an untrained eye. However, she testified that the traveler’s checks were, in fact, forgeries that were not issued by American Express. She testified that she was able to determine this because the serial numbers did not correspond to the dollar amounts and the holographs were slightly flawed.

The State presented no other evidence in support of its case. After the State rested, Ginn moved for a judgment of acquittal on all of the charges, arguing that the State had not presented any evidence to show that he had forged the traveler’s checks or that he knew the traveler’s checks were forgeries when he cashed them. He also argued that because he did not know the checks were forgeries, he did not have the intent necessary to commit a theft. The trial court granted a judgment of acquittal as to the forgery count, but it denied the motion as to the uttering and grand theft counts.

Ginn then testified in his own defense. He testified that he had a roommate in late 2007 who was supposed to be paying him $800 per month for rent. The roommate was often out of town, and he often received funds through the mail. In November 2007, Ginn’s roommate was behind on rent, and consequently Ginn was behind on his mortgage payments and utilities. Ginn called his roommate, and the roommate told Ginn that there were traveler’s checks in a piece of mail that he had received. The roommate told Ginn to take the traveler’s checks he needed to cover the past due rent.

Ginn found the envelope referred to by his roommate, opened it, and found five $500 American Express traveler’s checks inside. They appeared to Ginn’s untrained eye to be legitimate traveler’s checks. With his roommate’s permission, Ginn took one of the checks, cashed it at Mr. Money, and used the funds to pay his mortgage. A few days later, again with his roommate’s permission, Ginn took a second traveler’s check, cashed it, and used it to bring his utility payments current. A few days later, when Ginn took a third traveler’s check to cover additional expenses, Mr. Money refused to cash the check. Ginn then took the traveler’s check to Am-scot, where they made a telephone call and determined that the check was a forgery. Ginn testified that he had no idea that the traveler’s checks were forgeries until he was told this by Amseot. He testified that he had no intent to steal any money from Mr. Money and that he would have repaid the funds to Mr. Money when he learned of the forgery, but the funds had already been sent to his mortgage company and the utility companies.

Ginn also called Detective Ron Brown to testify. Brown testified that when he confronted Ginn with the evidence that the traveler’s checks were forgeries, Ginn denied knowing that. Ginn also told Brown that if he had known the traveler’s checks were forgeries, he would not have cashed them. Ginn told Brown that he would try to pay the funds back to Mr. Money if he could. Brown again admitted that the forged traveler’s checks were very good forgeries and appeared legitimate to him.

After Ginn rested his case, he renewed his motion for judgment of acquittal. The trial court denied the motion, and the jury subsequently found Ginn guilty of the two uttering charges and the two grand theft charges. Ginn now appeals these convictions, arguing that the State’s evidence was insufficient as a matter of law to support the convictions.

The Uttering Convictions

Judge (now Justice) Canady set forth the law concerning the required element of knowledge for an uttering conviction in Linn v. State, 921 So.2d 830, 833 (Fla. 2d DCA 2006):

Section 831.02 provides that the crime of uttering a forged instrument has the following elements: (1) uttering and publishing as true a false, forged, or altered instrument; (2) knowing the instrument to be false, altered, forged, or counterfeited; and (3) intending to injure or defraud....
Under section 831.02, it is not sufficient for the State to show that the defendant should have known the instrument was forged. Instead, the State is required to prove the defendant had actual knowledge that the check had been forged.

(Italic emphasis in original; undeidine emphasis added.) “[T]he very essence of the offense [of uttering] is the nature of the written instrument,” and thus “[o]ne who passes a forged [instrument] in good faith, entirely innocent of the fact that it is a forgery, [can] not be convicted of uttering a forged instrument.” State v. Scarborough, 170 So.2d 458, 460 (Fla. 2d DCA 1965); see also Taylor v. State, 241 So.2d 426, 426 (Fla. 3d DCA 1970) (holding that an “essential element” of the crime of uttering a forged instrument is knowledge that the instrument was forged).

In this case, there was undisputed evidence that the traveler’s checks were forgeries and that Ginn cashed them. The only disputed issue at trial was whether Ginn knew that the traveler’s checks were forged when he presented them for payment. Ginn testified that he had never seen or used traveler’s checks before. He denied knowing that the traveler’s checks were forged, both in post-Miranda statements to the police and during his testimony at trial. In addition, all of the witnesses, including the police officers, the owner of Mr. Money, and the American Express investigator, testified that the forgeries were exceptionally good and that the traveler’s checks appeared to be legitimate.

The State presented no evidence to rebut Ginn’s statements that he did not know that the traveler’s checks were forged. Instead, the State argued that the jury could infer actual knowledge that the traveler’s checks were forged simply from Ginn’s possession of them. However, unlike with possession of stolen property, there is no statute providing that possession of a forged instrument gives rise to a presumption that the holder knows the document is a forgery, and no case law so holds either.

The State also argued that the American Express investigator’s testimony that the holograph on one of the checks was flawed was sufficient to permit the jury to infer that Ginn knew that the traveler’s checks were forgeries. However, at most, this testimony would show that perhaps Ginn should have known that the traveler’s checks were forged. It does not establish that Ginn actually knew that they were forged. In addition, contrary to the State’s argument on appeal, Ginn’s failure to repay the funds to Mr. Money after he learned that the checks were forgeries does not establish or permit the jury to infer that Ginn had actual knowledge that the checks were forged when he presented them to Mr. Money to be cashed.

The State also argues that Ginn’s possession of the forged traveler’s checks combined with his failure to repay the funds to Mr. Money constitutes circumstantial evidence of knowledge that the checks were forged. When attempting to prove a charge of uttering a forged document, the State can establish a defendant’s knowledge that an instrument is forged through circumstantial evidence. See Linn, 921 So.2d at 833; J.N.W. v. State, 361 So.2d 826, 826 (Fla. 1st DCA 1978). However, when the State relies entirely on circumstantial evidence to establish a defendant’s knowledge that an instrument was forged, the defendant’s reasonable hypothesis of innocence that he lacked knowledge that the instrument was forged requires the entry of a judgment of acquittal unless the State has presented competent evidence inconsistent with the defendant’s theory of events. See Linn, 921 So.2d at 834; see also State v. Law, 559 So.2d 187, 188 (Fla.1989) (holding that when the State’s proof of one or more elements of an offense depends entirely on circumstantial evidence, a motion for judgment of acquittal should be granted “if the [Sjtate fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt”).

For example, in Linn, the defendant testified that he did auto repair work as a side job. 921 So.2d at 832. A friend called Linn and said that he knew someone who needed auto repairs made. Id. The friend identified the potential customer as Lester Wagler. Id. The customer, whom Linn had never met before, brought his car to Linn’s house. Id. at 833. Linn purchased the necessary parts and did the work. Id. He then called the customer, told him he accepted only cash, and told him that the repairs would be $376.50. Id. When the customer arrived, he said that he only had a check. Id. The check was in the name of Lester Wagler. Id. The customer made out the cheek to Linn per Linn’s instructions, and Linn testified that he had no reason to believe that the check was forged, and he did not ask for identification. Id. Linn then took the check to Bank of America, where he presented it along with his current driver’s license. Id. at 832. He waited while the teller looked up the account to verify the signature. Id. When the signatures did not match, the teller told Linn that there was a problem with the check and that he needed to wait. Id. Linn then waited while the teller got her supervisor. While Linn was waiting, he was overheard saying that he did not write the check. Id. Linn continued to wait in the bank lobby until he was told that the check would not be cashed. Id.

In arguing against Linn’s motion for judgment of acquittal, the State contended that circumstantial evidence of Linn’s guilty knowledge was established by the correct spelling on the check of his unusually-spelled first name. Id. at 834. The State also argued that the incorrect date on the check and a notation about “house repairs” were “red flags” that were sufficient to prove Linn’s knowledge. Id. However, this court noted that Linn’s testimony accounted for these facts and that the -State had failed to introduce any evidence inconsistent with Linn’s explanation. Id. Accordingly, this court reversed Linn’s conviction and remanded for his discharge. Id. at 836; see also Heath v. State, 382 So.2d 391, 392 (Fla. 1st DCA 1980) (holding that State failed to prove the defendant knew the check had been forged when the evidence failed to rebut his story that he sold a tent to a hitchhiker in return for check); Lampley v. State, 214 So.2d 515, 517 (Fla. 3d DCA 1968) (reversing conviction when there was no evidence as to how or when the check came into the defendant’s possession, other than his testimony that he found the check and was attempting to turn it in rather than cash it, and there was no evidence to refute his testimony that he did not know the check was forged).

In contrast, in State v. Konegen, 18 So.3d 697 (Fla. 4th DCA 2009), Konegan testified at trial that he did not know that the check he had tried to cash was forged. However, the State introduced the testimony of the investigating detective, who said that Konegan had admitted post-Miranda that he did not know whether the check was “fake or not” when he presented it for payment. Id. at 699. Konegan also testified at trial that he was “suspicious about the check’s validity because it was made out for more than the renter was required to pay” and that he “feared the check was part of a ‘money-laundering scheme.’ ” Id. Because these statements were inconsistent with Konegan’s position that he did not know that the check was forged, the Fourth District held that the motion for judgment of acquittal should not have been granted. Id. at 700; see also J.N.W., 361 So.2d at 826 (finding sufficient circumstantial evidence of guilty knowledge when the check defendant presented to be cashed was made out to “Sammy Helms” and endorsed by “Sammy Helms” but the defendant was not Sammy Helms).

In this case, as in Linn and unlike in Konegen, the State did not present any evidence whatsoever that was inconsistent with Ginn’s theory of events. Instead, it accepted Ginn’s theory of the facts and simply argued that a competing inference was equally reasonable. However, the State cannot defeat a motion for judgment of acquittal when it accepts the defendant’s uncontradicted theory of the facts and simply argues that a competing theory is equally reasonable. See Grover v. State, 581 So.2d 1379, 1382 (Fla. 4th DCA 1991) (holding when the evidence presented showed only one set of circumstances, i.e., the defendant’s continued sales with knowledge that supplies were short, the State could not prevail because it had presented no evidence to contradict the defendant’s theory of innocence). Thus, because the State failed to present any evidence that Ginn actually knew that the traveler’s checks were forged when he presented them for payment and therefore failed to present any evidence that would contradict Ginn’s theory of the case, the trial court should have granted Ginn’s motion for judgment of acquittal on the uttering charges. We must therefore reverse these convictions.

The Theft Convictions

As to Ginn’s convictions for grand theft, the State was required to prove that Ginn knowingly obtained the property of another with the intent to either deprive the other person of the property or appropriate the property for his own use. See § 812.014, Fla. Stat. (2007). Intent to steal is a necessary element of the offense of theft, and the burden rests on the State to establish that the property was taken with this intent. See Maddox v. State, 38 So.2d 58, 59 (Fla.1948). Further, the intent to steal must exist “at the time of the taking.” Adams v. State, 443 So.2d 1003, 1006 (Fla. 2d DCA 1983). “If it appears that the taking was consistent with honest conduct, although the party charged with the crime may have been mistaken, he cannot be convicted of larceny.” Maddox, 38 So.2d at 59. Moreover, when a “taking was in the open, with no subsequent attempt to conceal it, and there was no concealment nor denial of such taking, but on the other hand, an express avowal thereof,” a strong presumption arises that the defendant had no felonious intent. Id.; see also Adams, 443 So.2d at 1007.

Here, Ginn testified that he believed the traveler’s checks were legitimate and that he had no information to the contrary when he went to Mr. Money to cash them. The owner of Mr. Money also believed the traveler’s checks were legitimate when she cashed them. Ginn openly presented the traveler’s checks at Mr. Money, gave them his correct name, driver’s license, and current address, and stayed while the cheeks were cashed. He made no attempt to conceal his identity, and he never denied that he cashed the traveler’s checks but instead admitted that he cashed them believing them to be legitimate. In light of these facts, there is a strong presumption that Ginn had no intent to steal the funds from Mr. Money.

The State presented no evidence to contradict any of the facts as testified to by Ginn and thus failed to rebut, in any regard, this presumption that Ginn had no intent to steal the funds. While the State asserts in this appeal that an intent to steal can be inferred from the fact that Ginn did not repay the funds after he was told of the forgery, such after-the-fact knowledge cannot give rise to a presumption of an intent to steal at the time of the taking. Further, Ginn testified that he could not repay the money because he had used the funds to pay his bills, and the State presented no evidence to contradict this testimony.

Accordingly, because the State failed to meet its “threshold burden” of introducing competent evidence which was inconsistent with Ginn’s theory of events, the trial court erred in denying Ginn’s motion for judgment of acquittal on the theft charges. We must therefore reverse these convictions as well.

Reversed and remanded for discharge.

SILBERMAN, J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: WHATLEY, Judge.

text:
    Reinaldo VALDES, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3076.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2010.
   WHATLEY, Judge.

Reinaldo Valdes appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, which raised two claims that he was improperly convicted of failure to appear. We affirm because both of these claims are cognizable only on direct appeal. However, it appears that Valdes has until March 25, 2010, to file another rule 3.850 motion. If his allegations are true, Valdes may have a viable claim that his counsel was ineffective for failing to advise him of an available defense. See Grosvenor v. State, 874 So.2d 1176, 1181 (Fla.2004). Such a claim would not be considered successive.

Affirmed.

VILLANTI and LaROSE, JJ., Concur.


text:
    James Charles THOMAS and Robert Paul Thomas, Appellants, v. Richard Paul THOMAS, as Personal, etc., Appellee.
    No. 5D08-4415.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.
    Jan Soeten, Jr., Brandon Law Offices of Jan Soeten, Jr., P.A., Brandon, for Appellants.
    Patrick M. Magill, Orlando, for Appellee.
   PER CURIAM.

The Appellants, James Charles Thomas and Robert Paul Thomas, appeal the final judgment of the trial court, which granted a judgment on the pleadings and dismissed their adversary complaint for removal of the Personal Representative of the Estate. It also granted the motion to strike their objections to the final accounting. We affirm.

The Appellants and the Appellee, Richard Paul Thomas, are brothers and are the beneficiaries of the estate of their mother, Joyce P. Thomas. The Appellee was named Personal Representative of the estate. During the administration of the estate, there were substantial assets in stock equities that were managed by a broker. Evidently, the broker mismanaged the assets and, as a result, the estate incurred substantial losses.

The Appellee brought a claim against the brokerage firm for mismanagement and that claim was ultimately settled. The Appellants agreed to the settlement, and it was approved by the court. After the settlement was made, the Appellants filed a motion to remove the Appellee as Personal Representative of their mother’s estate. The motion came before the court for hearing on June 19, 2006. On the day of the hearing, the Appellee filed a final accounting and a motion for discharge. At the hearing on June 19, 2006, the parties stipulated to a 45-day continuance so that the Appellee could provide certain documents to the Appellants in regard to the final accounting. Nothing further transpired until October 12, 2006, when Appellants objected to the final accounting. In October 2006, the court denied the Appellants’ motion to remove the Personal Representative and gave them 30 days to file an adversary complaint, which they did.

On December 3, 2008, the court entered a final judgment granting a motion for judgment on the pleadings, dismissing the adversary complaint, and granting the motion to strike the objection to the final accounting. The Appellee argues that the court based its ruling on the fact that the objection to the final accounting was not timely filed. That is, the accounting was filed June 16, 2006, and the objection was not filed until October 12, 2006, well beyond the 30 days in which to object as provided by rule 5.401(a).

Appellants contend that the final accounting filed in this case was not complete and, therefore, it was not a final accounting. The Appellants cite no authority for their position and this Court disagrees.

It is clear that a final accounting was filed June 19, 2006, and if infirmities in the final accounting existed, the Appellants had 30 days in which to file an objection, and 90 days from the filing of the objection in which to have a hearing. They did neither. The court found that the objection was waived. It also entered a judgment on the pleadings against the Appellants on their adversary proceeding to remove the Personal Representative. Clearly, at that point, the final accounting had been filed and the only remaining action to complete the estate was to disburse the assets.

AFFIRMED.

GRIFFIN, TORPY and JACOBUS, JJ., concur.

      . Fla. Prob. R. 5.401(a).

      . See Fla. Prob. R. 5.401(d).


text:
    R.G., Father of R.G., Jr., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D09-3869.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2010.
    Nickole E. Frederick, Orlando, for Appellant.
    Kelly Swartz, Department of Children and Families, Rockledge, for Appellee.
    William J. McClellan, of Law Office of William J. McClellan, P.A., Orlando, Guardian ad Litem.
   PER CURIAM.

Pursuant to the Appellee’s confession of error, the order terminating parental rights of the Appellant is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

PALMER, LAWSON and JACOBUS, JJ., concur.


author: DAVIS, Judge.

text:
    Dennis L. FLICK, Appellant, v. Amy CHARLTON, Robert Fields, Jr., Mary Lou Fields f/k/a Mary Lou Gordon, and David A. Fields, Appellees.
    No. 2D08-3576.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.
    Lawrence H. Liebling of Lawrence H. Liebling, P.A., Safety Harbor, for Appellant.
    Gary M. Schaff and Brian C. Willis of Becker & Poliakoff, P.A., Clearwater, for Appellees.
   DAVIS, Judge.

Dennis L. Flick challenges the trial court’s final judgment ordering specific performance of a contract to sell real property to David and Mary Lou Fields. Although the trial court tried to resolve a very complicated family dispute, we conclude that it erred in granting this relief.

As determined by the trial court after hearing the testimony of the parties, Mr. Flick owned eight and one half acres of land in Pasco County. He resided in a residence on the subject property. Likewise, his niece and her husband, Amy Charlton and Robert Fields, maintained their residence on the property. Robert Fields’ brother and his wife, David and Mary Lou Fields, lived on property located across the street from Mr. Flick’s property. Mr. Flick entered into separate contracts with Amy and Robert and with David and Mary Lou. These contracts obligated Flick to sell a total of two acres of his land to the purchasing couples.

In late 2004, Mr. Flick advised the purchasers of his intention to rescind the contracts. This prompted the purchasers to file the instant action in December 2004, seeking among other relief specific performance of the two contracts. In February 2005, the parties met and reached another agreement by which Mr. Flick would sell the entire two acres to Robert Fields and Amy Charlton. It was understood that after the closing they would divide the land with David and Mary Lou Fields. This agreement resulted in a written contract dated August 15, 2005. This contract does not mention the prior contracts. For reasons that are not important to this appeal, the parties did not close on the new August 15 contract. Mr. Flick then entered yet another contract to sell the two acres. This contract was dated December 11, 2005, and provided for David and Mary Lou Fields to purchase the two acres and then divide the property with Amy Charlton and Robert Fields after the sale. Again, the prior contracts were not mentioned in this final agreement. Regarding this series of agreements, the trial court found that “it seems that everyone involved assumed that when the purchase by someone was consummated this action would be dismissed but they arrived at this assumption without discussing it with their lawyers.” The trial court recited these facts in its final judgment, and neither of the parties contest any of these findings on appeal.

When Mr. Flick failed to close on the December 2005 contract with David and Mary Lou Fields, the litigation of the original complaint reached the trial court. Mr. Flick’s answer included several affirmative defenses, including that of novation whereby he alleged that the original contracts were superceded by the August and December 2005 agreements. The trial court’s final judgment specifically points out that the original complaint sought specific performance of the first two contracts Mr. Flick executed, i.e., the ones selling one acre to each of the purchasers. Further, the trial court noted that although there was not a formal novation by oral or written agreement,

the implication of the circumstances in this action is that all of the parties agreed (if only by assumption) that the contract between Charlton-Fields [Amy and Robert] and the defendant, Dennis Flick, signed on August 15, 2005 (which is plaintiffs’ exhibit number 3)[,] be substituted for both of the original contracts and necessarily that both of the original contracts be canceled. Likewise, the implication is clear that the contract between David and Mary Lou Fields and the defendant signed on December 11, 2005 (which is plaintiffs’ exhibit number 4)[J was agreed by all of the parties to be substituted for the August 15, 2005[,] contract between Charlton-Fields and Flick. Therefore, it appears that there are multiple novations by implication and that the December 11, 2005Q contract between David and Mary Lou Fields and Mr. Flick is ultimately substituted for all of the previous contracts. The plaintiffs have not pled “novation,” but the defendant has[,] and therefore it would be unseemly for him to now object to that legal concept being used to support specific performance for the plaintiffs.

(Citation omitted.) Having made the determination that by novation the contract with David and Mary Lou Fields should be substituted for the original two contracts specified in the count of the complaint seeking specific performance, the trial court proceeded to find for the plaintiffs as to that count and granted them relief by ordering Mr. Flick to perform the December 11, 2005, contract and sell the property to David and Mary Lou Fields.

On appeal, the parties do not challenge the finding that a novation occurred. However, Mr. Flick challenges the decision by the trial court to sua sponte amend the pleadings by substituting the December 11, 2005, contract for the contracts specified in the complaint and then proceed to grant the requested specific performance on the substituted contract. We agree with Mr. Flick that it was error for the trial court to grant specific performance on that contract without providing him the opportunity to respond to the complaint as amended by the substitution of the contract.

Parties may seek an amendment to their pleadings, and such requests are to be liberally granted. Ohio Cas. Ins. Co. v. MRK Constr., Inc., 602 So.2d 976, 978 (Fla. 2d DCA 1992). However, before granting such a request, the trial court should provide an opportunity to the other party to show whether he will be prejudiced by allowing the amendment. Id. Here, the plaintiffs never affirmatively sought to amend their pleadings to substitute the December 11, 2005, contract. Rather, after the evidentiary hearing concluded and the trial court took the matter under advisement, the trial court sua sponte made the determination that there was a novation and that the substitution should be implemented.

Arguably, the trial court’s actions in this case may be within the province of the court’s available authority. See Fla. E. Coast Ry. Co. v. Shulman, 481 So.2d 965 (Fla. 3d DCA 1986) (affirming a judgment entered after a trial court sua sponte allowed a party to amend a complaint). However, we need not make that determination. By making the substitution in the final judgment without notice to the parties and after the evidentiary hearing was closed, the trial court deprived Mr. Flick of an opportunity to show how the substitution of the contracts prejudiced him or to amend his responsive pleadings to comport with the amended complaint. See id. at 967 (“[Ajmendments to pleadings ... should be freely granted by the trial court unless by doing so, the opposing party will be prejudiced in maintaining his action or defense upon the merits.” (citing Fla. R. Civ. P. 1.190(a), (b))); see also Ohio Cas., 602 So.2d at 978 (“[T]he trial court abused its discretion in allowing [plaintiff] to amend its complaint during the middle of the trial. By so ruling, the trial court essentially eliminated one of [the] defenses and then did not give [the defense] an opportunity to prepare a defense to the amended complaint.”).

Even though he does not contest the finding of a novation, such a finding in favor of Mr. Flick’s affirmative defense would, without more, simply defeat the complaint as to the requested relief on the original contracts. However, the substitution of the December 11, 2005, contract into the count of the complaint seeking specific performance completely changed the cause of action. That is, the factual circumstances that would have supported specific performance based on the failure to close on the original contracts in 2004 are different from the circumstances that must be shown to support specific performance of the December 11, 2005, contract. Although testimony and evidence may have been presented at the evidentia-ry hearing that related to the relationship between the parties at the time they entered into the 2005 contract, Mr. Flick was not on notice that he was in fact defending a claim of specific performance of the 2005 contract at the time of the hearing. Had the request to substitute the contract been made at the hearing, he may have sought to amend his answer and/or affirmative defenses or he may have had further evidence to present in defending the amended claim. Since Mr. Flick was denied the opportunity to make a showing that prejudice would result from the substitution, or otherwise defend against the amended claim, the trial court erred, not in finding a novation, but rather by its methods in amending the pleadings.

Accordingly, we reverse and remand for further proceedings consistent with this opinion. We note that on remand, after properly establishing the scope of the pleadings and any available remedies or amendments thereon, the trial court will necessarily have to reconsider Mr. Flick’s counterclaims for unpaid rent as stipulated by the parties.

Reversed and remanded.

KELLY and CRENSHAW, JJ., Concur.

      . In addition to specific performance, the complaint sought monetary damages for costs incurred after the execution of the contracts related to the property and declaratory relief as to their rights under the contracts.

      . We make no determination regarding whether the facts under the novation would allow for specific performance under a properly amended pleading or whether Mr. Flick could amend his defenses or answer to counter such a remedy.


text:
    HOME DEVCO/TIVOLI ISLES LLC, a Florida Limited Liability Company, Appellant, v. Donna SILVER, Appellee.
    No. 4D08-3500.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.

      Robert M. Weinberger of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellant.
    Jeffrey A. Sarrow of Jeffrey A. Sarrow, P.A., Plantation, for appellee.
    Elaine Johnson James of Edwards An-gelí Palmer & Dodge LLP, West Palm Beach for Amicus Curiae-Toll Brothers, Inc.
    Katherine E. Giddings of Akerman Sen-terfitt, Tallahassee, and Keith C. Hetrick, Tallahassee, for Amicus Curiae-Florida Home Builders Association.
   ON MOTION FOR REHEARING

TAYLOR, J.

Toll Brothers, Inc. and the Florida Home Builders Association timely filed a motion to appear as amicus curiae for the purpose of filing a motion for rehearing directed to our opinion dated September 23, 2009. We grant their motions to appear as amicus curiae and motions for rehearing, vacate our prior opinion, and substitute the following in its place.

Home Devco/Tivoli Isles LLC (Home Devco) appeals from a final summary judgment entered in favor of Donna Silver for return of a construction deposit due to Home Devco’s noncompliance with the Interstate Land Sales Full Disclosure Act (“ILSA” or the “Act”), 15 U.S.C. § 1701 et seq. Silver sued Home Devco to rescind a contract for the sale of real property and recover her deposit because Home Devco had failed to provide her with a property report before execution of the contract, as required by ILSA. Home Devco responded that it was exempt from the Act because the contract obligated it to complete construction of the residence within two years of the contract. The trial court granted Silver’s motion for summary judgment, finding that Home Devco was not exempt from the provisions of the Act because the contract did not contain an unconditional commitment by Home Devco to complete construction of the residence within two years. We disagree and reverse the final summary judgment.

Home Devco is the developer of the Tivoli Isles community, a residential development in Delray Beach, Florida. On March 25, 2005, Silver and Home Devco entered into a purchase and sale agreement for the sale of a lot in Tivoli Isles and a home to be constructed on the lot by Home Devco. In her suit against Home Devco, Silver alleged that the transaction was subject to ILSA and that Home Devco violated the Act by failing to deliver a copy of the property report to her before she signed the purchase contract. She alleged that she timely notified Home Devco that she wanted the transaction rescinded and her $50,990 deposit returned. In response, Home Devco conceded that it did not provide Silver with a property report but contended that it was exempt from ILSA requirements because the purchase and sale agreement expressly provided for completion of construction within twenty-four months.

The trial court granted Silver’s motion for summary judgment, finding that because the contract did not contain an unconditional commitment to complete construction within twenty-four months, Home Devco was not exempt from ILSA requirement to furnish a property report to Silver. Accordingly, the trial court rescinded the contract and ordered refund of the $50,990 deposit, plus prejudgment interest and court costs. Home Devco appealed the final summary judgment.

Congress passed ILSA in 1968 “to protect purchasers from unscrupulous sales of undeveloped home sites, frequently involving out-of-state sales of land purportedly suitable for development but actually under water or useful only for grazing.” Fortunato v. Windjammer Homebuilders, Inc., 2006 WL 208777, at *2 (M.D.Fla. Jan. 25, 2006) (quoting Winter v. Hollingsworth Props., 777 F.2d 1444, 1447 (11th Cir.1985)). ILSA is an anti-fraud statute, which, among other things, makes it unlawful to sell or lease non-exempt lots without furnishing the purchaser or lessee with a printed property report meeting statutory standards in advance of the signing of the contract to purchase or lease the property. 15 U.S.C. § 1703(a)(1)(B). Failure to provide the report as required permits the buyer or lessee to revoke the contract at any time within two years of the date of signing the contract. 15 U.S.C. § 1703(c). In the event of revocation, the buyer or lessee is entitled to a refund of any deposits paid. 15 U.S.C. § 1703(e).

However, ILSA provides an exemption for “the sale or lease of land under a contract obligating the seller or lessor to erect such a building thereon within a period of two years.” 15 U.S.C. § 1702(a)(2). The issue in this appeal is whether the agreement between Home Devco and Silver obligates Home Devco to complete construction of the residence within two years so as to exempt Home Devco from ILSA’s requirement to provide a property report to the purchaser.

To decide this issue, we must examine the language of the agreement, applying both federal and state law. Federal law governs our interpretation of ILSA because it is a federal statute. Stein, 586 F.3d at 854 (citing Caley v. Gulf stream Aerospace Corp., 428 F.3d 1359, 1369 n. 9 (11th Cir.2005)). But state law controls our analysis of the nature and extent of the contractual obligation imposed by the agreement and determination of whether the obligation is real or illusory. Id.; Samara Dev. Corp. v. Marlow, 556 So.2d 1097, 1099-1100 (Fla.1990).

Paragraph 13 of the Purchase and Sale Agreement states:

Notwithstanding the foregoing or any other provision contained in this Agreement, the Seller agrees that it is unconditionally obligated to complete and to deliver the Residence to buyer no later than twenty-four (24) months from the date of the execution of this Agreement, however, said twenty-four (24) month period shall be extended by any time lost to Seller as a result of delays caused by acts of God, acts of governmental authority, flood, hurricane, strikes, labor conditions beyond Seller’s control, or any other similar causes not within Seller’s control.

(emphasis added).

Relying on the Florida Supreme Court’s statement in Samara that the contract must “unconditionally obligate” the developer to complete construction within two years for the exemption to apply, 556 So.2d at 1098, Silver argues that the contract here did not contain such an unconditional commitment. Instead, she contends, the agreement contained overbroad, catchall language extending the completion period for a variety of reasons that rendered the developer’s obligation to timely complete construction illusory.

In Samara, the Florida Supreme Court noted that the administrative interpretations of a statute by the agency required to enforce that statute are entitled to great weight. 556 So.2d at 1099. The federal Department of Housing and Urban Department (HUD), which is responsible for administering ILSA, issued new guidelines in 1996 interpreting the “two-year exemption. The guidelines permit the extension of the two-year completion period based upon facts which would constitute an impossibility of performance defense to a contract action. The new HUD Guidelines state, in pertinent part:

Contract provisions which allow for nonperformance or for delays of construction completion beyond the two-year period are acceptable if such provisions are legally recognized as defenses to contract actions in the jurisdiction where the building is being erected. For example, provisions to allow time extensions for events or occurrences such as acts of God, casualty losses or material shortages are generally permissible ....
Although the factual circumstances upon which nonperformance or a delay in performance is based may vary from transaction to transaction, as a general rule delay or nonperformance must be based on grounds cognizable in contract law such as impossibility or frustration and on events which are beyond the seller’s reasonable control.

Guidelines for Exemptions Available Under the Interstate Land Sales Full Disclosure Act, 61 Fed.Reg. 13596 (Mar. 27, 1996) (emphasis added).

Silver acknowledges that certain specified events in the contract, such as acts of God or labor strikes, could support an impossibility of performance defense, but she maintains that inclusion of the clause, “or any other similar causes not within Seller’s control,” absolves Home Devco of its obligation and disqualifies it from the exemption. To support her position, Silver cites Harvey v. Lake Buena Vista Resort, LLC, 568 F.Supp.2d 1354, 1359 (M.D.Fla.2008). There, the district court concluded that a developer’s ability to extend the completion date “by reason of delays incurred by circumstances beyond Seller’s control” and for “any other grounds cognizable in Florida contract law as ... frustration of performance, including, without limitation, delays occasioned by wind, rain, lightning and storms” made the resort’s two-year completion obligation illusory. The court reasoned that the resort’s commitment was not an “unconditional obligation” because the broad range of reasons excusing timely completion did not qualify under Florida law’s impossibility of performance principles. In so concluding, Harvey relied extensively on the district court’s analysis in Stein v. Paradigm Mirsol, LLC, 551 F.Supp.2d 1323 (M.D.Fla.2008)

In Stein, the district court considered a condominium construction contract with a force majeure clause similar to the one in the case before us. The clause in Stein provided that the “Seller shall not be responsible for any delay caused by acts of God, weather conditions, restrictions imposed by any governmental agency, labor strikes, material shortages or other delays beyond the control of the Seller.” Taking into account the HUD guidelines on ILSA’s exemption, the district court concluded that these exclusions did not satisfy Florida’s impossibility of performance standards; thus the seller’s obligation was illusory and disqualified him from the exemption.

Recently, however, the Eleventh Circuit reversed Stein. See Stein v. Paradigm Mirasol, 586 F.3d 849 (11th Cir.2009). The court disagreed that the developer’s contractual duty to complete construction was illusory and upheld application of its exemption. The circuit court questioned the district court’s use of Florida’s doctrine of impossibility as the measure of obligation under ILSA’s exemption. It explained that the court’s focus should be on the key term in the text of the Act, “obligating,” and that this term should be interpreted under federal law, utilizing its ordinary meaning. Stein, 586 F.3d at 853-54. The court stated that “[g]iven the context and the ordinary meaning of ‘obligating,’ the § 1702(a)(2) exemption applies when a contract imposes a legal duty on the developer to perform his promise to construct the condominium or other building within two years.” Id. at 854.

Regarding Florida contract law pi’inci-ples, Stein noted that force majeure clauses broader than the scope of impossibility are enforceable under Florida law, including those allowing foreseeable as well as unforeseeable events to excuse timely performance. The court questioned why such clauses should render a contract non-exempt. Id. at 857. In the final analysis, the court concluded that a developer may place a condition on its two-year completion obligation that does not qualify as a defense under Florida’s impossibility of performance doctrine, yet still be entitled to the exemption. So long as the force majeure clause limits exclusions to events beyond the control of the seller, and not within its discretion, the contract “obligates” the seller to complete construction within the two-year period for purposes of the Act; the obligation is not illusory. Id. at 858.

As in Stein, the contract at issue here, which references acts of God, acts of governmental authority, hurricanes, strikes, labor conditions beyond seller’s control, or “any other similar causes not within Seller’s control,” limits exclusions to events beyond the seller’s control and does not make the two-year duty subject to the seller’s discretion. Furthermore, because the clause “or any other similar causes not within Seller’s control” follows events listed before it — events which provide a recognized defense to a claim for contractual breach under Florida law — the clause can be construed as covering only events which are beyond the seller’s control.

Recently, the second district in Aikin v. WCI Communities, Inc., 34 Fla. L. Weekly D2608 (Fla. 2d DCA Dec. 18, 2009), affirmed the trial court’s ruling that the condominium seller was exempt from the registration and disclosure requirements of ILSA because the contract contained a binding obligation to construct the unit within two years. The contract allowed the date for completion to be extended by reason of delays “incurred by circumstances beyond Seller’s control, such as acts of God, or any other grounds cognizable in Florida contract law as impossibility or frustration of performance, including, without limitation, delays occasioned by rain, wind and lightning storms.” The court agreed with Mailloux that Samara ’s “unconditionally obligate” language does not prohibit all conditions on the two-year construction obligation in order for a seller to qualify for the exemption. In upholding the seller’s exemption, the court concluded that WCI’s listing of conditions beyond its control did not extend the clause’s scope beyond that permissible under HUD guidelines.

Because we conclude that the language in the sales contract did not render Home Devco’s obligation to complete construction within two years illusory, Home Devco was exempted from ILSA’s disclosure requirements. Accordingly, we reverse the final summary judgment.

Reversed and Remanded.

WARNER and POLEN, JJ„ concur.

      . In our original opinion, Home Devco/Tivoli Isles, LLC v. Silver, 34 Fla. L. Weekly D1932 (Fla. 4th DCA Sept. 23, 2009), we placed great reliance on the federal district’s decision in Stein v. Paradigm Mirsol, LLC, 551 F.Supp.2d 1323 (M.D.Fla.2008), as well as other decisions that relied on Stein, in interpreting a contractual provision under the Interstate Land Sales Full Disclosure Act (“ILSA”). A week after our decision was issued, the Eleventh Circuit reversed the Stein trial court decision. See Stein v. Paradigm Mirasol, LLC, 586 F.3d 849 (11th Cir.2009).

      . In Mailloux v. Briella Townhomes, LLC, 3 So.3d 394 (Fla. 4th DCA 2009), where purchasers relied on Samara to argue that the contract did not unconditionally obligate the seller to complete construction within two years because it permitted delays for acts of God, impossibility of performance, and frustration of purpose, we distinguished Samara, noting that Samara concerned a contractual limitation on the purchaser’s remedies of specific performance and damages rather than recognized defenses to nonperformance. Id. at 396.

      . See, e.g., St. Joe Paper Co. v. State Dep't of Envtl. Regulation, 371 So.2d 178, 180 (Fla. 1st DCA 1979) (implicitly recognizing that a force majeure clause that excuses delays for "any cause ... not within the reasonable control of the company” was enforceable); Camacho Enterprises, Inc. v. Better Constr., Inc., 343 So.2d 1296, 1297 (Fla. 3d DCA 1977) (interpreting the contract’s force majeure clause as excusing delay where its president's heart attack was a circumstance "beyond the control” of the development company).

      . As did the second district in Aikin, we note some conflict between the Eleventh Circuit and the Florida Supreme Court as to their interpretation of ILSA and opinion on the weight that should be given the HUD guidelines in interpreting the Act. See Stein, 586 F.3d at 857 n. 5.


author: LaROSE, Judge.

text:
    Paula G. PALUMBO, Appellant/Cross-Appellee, v. Jay E. BUTLER, Appellee/Cross-Appellant.
    No. 2D08-2980.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant/ Cross-Appellee.
    Virginia R. Vetter, Tampa, for Appel-lee/Cross-Appellant.
   LaROSE, Judge.

Paula Palumbo appeals and Jay Butler cross-appeals the final judgment dissolving their eleven-year marriage. We reverse, in part, because the trial court erred in including gifts from Mr. Butler’s mother in his income for purposes of calculating child support.

Historically, each of the parties’ two minor children has received an $11,000 annual gift from Mr. Butler’s mother for their education. The trial court added $22,000 per year to Mr. Butler’s income to calculate his child support obligation. The trial court reasoned that these gifts were regular and would continue. Mr. Butler, however, does not control his mother’s largesse. His mother testified that she anticipated making future gifts, depending on the economy, her health, and her family needs. In past years, she gave the children’s money directly to Mr. Butler, earmarking it for school tuition. But, well before the final hearing, she began paying the school directly.

On the record before us, Ms. Palumbo properly concedes that the anticipated gifts should not have been included in Mr. Butler’s income. See, e.g., Oluwek v. Oluwek, 2 So.3d 1088, 1039 (Fla. 2d DCA 2009) (holding trial court may not impute income based on gifts unless gifts are continuing and not sporadic). We reverse and remand for the trial court to recalculate child support.

We affirm on all remaining issues without further discussion.

Affirmed in part, reversed in part, and remanded.

WHATLEY and WALLACE, JJ„ Concur.


text:
    Robert M. INMAN, Appellant, v. Carol H. INMAN, Appellee.
    No. 4D09-194.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.
    Wayne R. McDonough of Wayne R. Mc-Donough, P.A., Vero Beach, for appellant.
    Craig M. Rappel of Rappel Health Law Group, P.L., Vero Beach, for appellee.
   PER CURIAM.

In a final judgment of dissolution of marriage, the trial judge essentially reserved jurisdiction to determine which item of the husband’s property would be subject to a lien to secure the wife’s alimony payments. The trial judge reasonably took this action as a result of the husband’s mistaken belief that a certain asset could be encumbered. As a result, a term in the parties’ mediation agreement could not be completely fulfilled. Athough the final judgment had the effect of terminating the marriage and finally adjudicating certain issues, procedurally it did not bring an end to the judicial labor required in this case. Therefore, the order is not appeal-able as a final order. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009). We dismiss the appeal without prejudice to either party’s right to file a timely notice of appeal after a final order has been rendered by the trial court.

GROSS, C.J., MAY and CIKLIN, JJ., concur.


author: NORTHCUTT, Judge.

text:
    S.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4653.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

S.G., a juvenile, was adjudicated delinquent. On appeal, he complains of the circuit court’s decision to place him in a moderate-risk detention facility rather than the low-risk facility recommended by the Department of Juvenile Justice. We reverse the placement and remand for further proceedings in accordance with the supreme court’s recent decision in E.A.R. v. State, 4 So.3d 614 (Fla.2009).

S.G. was on juvenile probation for resisting an officer without violence when he committed a new offense by carrying a concealed weapon. In June 2008 he admitted both the new offense and the resulting probation violation. The DJJ recommended that he be continued on probation, but at a hearing the next month the court committed him to a low-risk facility. S.G. does not challenge that placement.

While S.G. awaited an opening at a low-risk facility, he was placed on in-home detention. On August 1, 2008, he violated the detention order by being absent from his home. At a hearing to reevaluate S.G.’s placement, the State asked that he be sent to a moderate-risk facility. The DJJ, which had restaffed S.G.’s case after his preplacement detention violation, recommended that he continue with the low-risk commitment status. The Department advised that he would be leaving for his low-risk program the following week. The court instead committed S.G. to a moderate-risk facility. Its stated reason for doing so was: “if you can’t follow the pre-placement supervision that tells me that you need a more restrictive program.... ”

In E.A.R., the supreme court held that when a juvenile court departs from the DJJ’s recommended supervision level, it must explain why its preferred restrictiveness level, rather than the DJJ’s, provides the juvenile with the most appropriate services in the least restrictive setting. “The only rational or logical means through which the juvenile court may provide ‘reasons’ that explain, support, and justify” its preference for a particular restrictiveness level other than that recommended by the DJJ is first to “[ajrticulate an understanding of the respective characteristics of the opposing restrictiveness levels” and then to “logically and persuasively explain why, in light of these differing characteristics, one level is better suited” than the other. Id. at 638. These reasons “must provide a legally sufficient foundation for ‘disregarding’ the DJJ’s professional assessment.” Id. The court is required to discuss the restrictiveness level vis-a-vis the needs of the child. Thus, it must identify “significant information-that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.” Id.

According to E.A.R., when an appellate court is called upon to determine whether the circuit court has exercised appropriate discretion in disregarding the DJJ’s recommendation, it must analyze “(1) whether the juvenile court has employed the proper legal standard ... in providing its on-the-record departure reasons; and, if so, (2) whether its stated reasons are supported by a preponderance of the competent, substantial evidence contained within the record.” Id. at 638-69.

In this case, the circuit court’s brief explanation of its departure from the DJJ’s recommendation manifestly did not meet the legal standard enunciated in E.A.R. and recited above. Accordingly, we must reverse the placement and remand for further proceedings. If the court again chooses to depart from the DJJ’s recommended placement level, it must make the findings prescribed in E.A.R. See N.P. v. State, 18 So.3d 735, 738 (Fla. 2d DCA 2009).

We also question whether the circuit court’s previously stated reason for the departure—that S.G.’s failure to comply with preplacement detention demonstrated his need for a more restrictive placement than the DJJ’s recommended level—was supported by a preponderance of the evidence, as E.A.R. requires. See id. at 639. In K.M. v. State, 891 So.2d 619 (Fla. 3d DCA 2005), the Department recommended a moderate-risk placement, but the court placed the juvenile in a high-risk facility, in part because she had run away from her foster family. The Third District noted that the girl had never been placed in a moderate-risk facility and so had never run away from such a placement. Thus, the court concluded, the evidence did not support a finding that a moderate-risk placement would be insufficient to keep the child under control. This reasoning would seem to apply to the court’s statement about S.G. in this case. We reiterate that if on remand the court again elects to depart from the DJJ’s placement recommendation, its reasons for doing so must be supported by a preponderance of the evidence.

Reversed and remanded.

VILLANTI and LaROSE, JJ, Concur.


text:
    In re Robert G. CREELY.
    No. 2010-OB-0111.
    Supreme Court of Louisiana.
    Jan. 27, 2010.
   ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent violated the Rules of Professional Conduct, the basis for which allegations is sworn testimony given by respondent before the United States Fifth Circuit Court of Appeals and the United States House of Representatives Committee on the Judiciary concerning the possible impeachment of Judge G. Thomas Porteous. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Robert G. Creely, Louisiana Bar Roll number 4594, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Robert G. Creely for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Robert G. Creely shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be pei’manently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

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


text:
    In re Jacob J. AMATO, Jr.
    No. 2010-OB-0112.
    Supreme Court of Louisiana.
    Jan. 27, 2010.
   ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent violated the Rules of Professional Conduct, the basis for which allegations is sworn testimony given by respondent before the United States Fifth Circuit Court of Appeals and the United States House of Representatives Committee on the Judiciary concerning the possible impeachment of Judge G. Thomas Porteous. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Jacob J. Amato, Jr., Louisiana Bar Roll number 2442, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Jacob J. Amato, Jr. for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Jacob J. Amato, Jr. shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

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


text:
    In re Vincent C. COFIELD.
    No. 2009-B-2203.
    Supreme Court of Louisiana.
    Jan. 29, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| j This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Vincent C. Cofield, a disbarred attorney. For the reasons that follow, we now permanently disbar respondent.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. After being admitted to the practice of law in Louisiana in 1986, respondent’s first disciplinary infraction occurred in November 1999, when he was admonished by the disciplinary board for neglecting a legal matter.

In 2004, the ODC filed a motion with this court requesting that respondent be placed on interim suspension for threat of harm pursuant to Supreme Court Rule XIX, § 19.2. In support, the ODC alleged that several charges involving mishandling of client funds were pending against respondent. On March 23, 2004, we granted the motion, placed respondent on interim suspension, and remanded the matter to the disciplinary board for consideration of the underlying charges. In re: Cofield, 04-0033, 04-0558 (La.3/23/04), 869 So.2d 784.

Following our order of remand, the disciplinary board considered three sets of formal charges against respondent for misconduct occurring between 1999 and 2003. | {.These charges alleged that respondent failed to competently discharge his fiduciary obligations as trustee, failed to place disputed funds in a trust account, failed to timely remit settlement funds to his client, failed to provide his client with the requested accountings of fees or the requested copies of work done in the case, failed to promptly refund an unearned fee, and failed to cooperate with the ODC in its investigation. The board found these charges were proven, and recommended respondent be disbarred. On September 1, 2006, we accepted that recommendation and disbarred respondent retroactive to March 23, 2004, the date of his interim suspension. In re: Cofield, 06-0577 (La.9/1/06), 937 So.2d 330 (“Cofield I”).

Respondent has not sought readmission and remains disbarred. Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

The ODC filed two sets of formal charges against respondent. The first set of formal charges, consisting of one count and bearing the disciplinary board’s docket number 08-DB-006, was filed January 9, 2008. The second set of formal charges, filed August 4, 2008 under the disciplinary board’s docket number 08-DB-064, likewise consists of one count. The two sets of formal charges were consolidated by order of the hearing committee chair dated December 4, 2008.

05-DB-006

Count I — The Hayward Matter

As discussed earlier, this court’s September 1, 2006 judgment in Cofield I disbarred respondent retroactive to the date of his March 23, 2004 interim suspension. |3On or about January 7, 2007, long after the judgment in Cofield I became final, respondent contacted the Forcht-Wade Correctional Center and attempted to schedule an attorney phone call with prison inmate Dannie Hayward. In arranging the call, respondent provided his bar roll number and represented himself as actively engaging in the practice of law.

In January 2007, Mr. Hayward filed a complaint against respondent with the ODC. Respondent failed to reply to the complaint, necessitating the issuance of a subpoena to take his sworn statement. Respondent failed to appear for the sworn statement.

The ODC alleged that respondent’s conduct violated the following Rules of Professional Conduct: Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 5.5 (engaging in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness to practice law), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

08-DB-06I

Count II — The Drug Paraphernalia Matter

In September 2007, police officers responded to a report of a disturbance at an apartment in the City of Natchitoches. Respondent was present at the apartment. The police officers checked for active warrants on all subjects at the scene, and discovered respondent had an outstanding bench warrant for failure to appear in court in connection with an expired driver’s license. During the course of arresting ^respondent, the officers determined he had in his possession a “small homemade pipe.” Respondent was eventually charged with possession of drug paraphernalia. In October 2007, respondent appeared in Natchitoches City Court and pled guilty. He was sentenced to thirty days in jail with credit for time served.

The ODC alleged that respondent’s conduct violated the following Rules of Professional Conduct: Rules 8.4(a), 8.4(b) and 8.4(d).

DISCIPLINARY PROCEEDINGS

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the chair of the hearing committee signed an order providing that factual allegations contained in the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Subsequently, respondent filed an “Opposition to Motion to Declare Factual Allegations Deemed Admitted.” In his opposition, respondent explained that he had been “incarcerated from about September 19, 2007 through about February 24, 2008,” and that he only learned of the charges after his release.

| r,Based on respondent’s motion, the chair of the hearing committee recalled the deemed admitted order, and gave respondent twenty days to file an answer to the charges. Respondent failed to file an answer within this deadline. As a result, the chair reinstated the deemed admitted order.

Hearing Committee Report

After consideration of the consolidated charges, the hearing committee found that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Specifically, the committee found respondent knowingly and intentionally engaged in the practice of law while ineligible to do so, was convicted of a drug offense, and failed to cooperate with the ODC in a disciplinary investigation.

The committee identified several aggravating factors, the most significant of which was respondent’s prior disbarment in Cofield I. The committee found no mitigating factors.

After reviewing the jurisprudence, the committee concluded a “very stiff sanction” was generally warranted for similar misconduct. Accordingly, the committee recommended “a sanction of disbarment, but not permanent disbarment, in the hope that Respondent will work to earn back the trust of his peers in the community and subsequently be allowed to return to the practice of law.”

Disciplinary Board Recommendation

Neither respondent nor the ODC filed a formal objection to the hearing committee’s report with the disciplinary board. However, in its brief to the | ^disciplinary board, the ODC suggested that permanent disbarment may be appropriate in this case.

Respondent filed a reply to the ODC’s brief, arguing that he did not intentionally misrepresent himself as a licensed attorney. Respondent contended the charges were “unsubstantiated by clear and convincing evidence,” and asked that the board dismiss the charges, as “no intentional violation of any rule has occurred.” Finally, respondent represented that he completed a drug treatment program.

After reviewing this matter, the disciplinary board found that the deemed admitted facts support the conclusion that respondent violated the Rules of Professional Conduct as alleged in both sets of formal charges. The board determined that respondent, while disbarred, misrepresented himself as an active attorney to a state corrections officer, and attempted to schedule an attorney-client telephone call with a prison inmate. It further found respondent failed to cooperate with the ODC by failing to respond to a complaint filed against him, and failing to comply with an investigatory subpoena. Finally, the board concluded the record established respondent pled guilty to the crime of possessing drug paraphernalia.

The board determined that respondent violated duties owed to the legal system, the profession and the public. It noted that respondent’s conduct, by its very nature, was both knowing and intentional. Additionally, the board recognized the potential for injury to the legal system and the public was serious. Relying on Standard 5.11 |7of the ABA’s Standards for Lawyer Discipline, the board concluded the baseline sanction for respondent’s misconduct is disbarment.

In aggravation, the board recognized the following factors: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge wrongful nature of the conduct, vulnerability of the victim, and illegal conduct. The board found no mitigating circumstances were present.

After considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended that respondent be permanently disbarred.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation. Accordingly, the matter was presented to this court for entry of an order of discipline pursuant to Supreme Court Rule XIX, § ll(G)(a).

DISCUSSION

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

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts and other evidence in the record of this matter clearly support the conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Specifically, the record demonstrates that respondent attempted to hold himself out as a lawyer after being disbarred by this court. Additionally, respondent pled guilty to criminal conduct involving the possession of drug paraphernalia. It is clear the baseline sanction for respondent’s misconduct, which involves elements of deceit and misrepresentation, is disbarment.

As found by the disciplinary board, there are numerous aggravating factors in this case, including prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of his conduct, vulnerability of the victim, and | gillegal conduct. We are unable to identify any mitigating factors based on the information contained in the record.

Given the numerous aggravating factors and lack of any mitigating factors, we find there is no basis to deviate from the baseline sanction of disbarment. Rather, the sole remaining inquiry is whether respondent’s misconduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct the court might consider worthy of permanent disbarment.

For purposes of the instant case, Guideline 8 is relevant. That guideline provides permanent disbarment is appropriate when the respondent engages “in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.”

Guideline 8 is clearly applicable to respondent’s misconduct. In Cofield I, we revoked respondent’s license to practice law in this state. In flagrant disregard of that order, respondent falsely held himself out to prison officials as a licensed attorney, and sought to avail himself of privileges granted to attorneys in good standing. Such callous disregard for the authority of this court constitutes “indisputable evidence of a fundamental lack of moral character and fitness,” warranting permanent disbarment. In re: Jefferson 04-0239 (La.6/18/04), 878 So.2d 503.

l1flIn light of this blatant misconduct, we can conceive of no circumstance under which we would grant readmission to respondent. Therefore, we find the disciplinary board’s recommendation of permanent disbarment is appropriate.

Accordingly, we will accept the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the disciplinary board, and considering the record, it is ordered that the name of Vincent C. Cofield, Louisiana Bar Roll number 17514, be stricken from the roll of attorneys, and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this State. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, J., dissents.

      . The formal charges indicate respondent pled guilty to a violation of La. R.S. 40:1033. However, that statute pertains to permit applications involving the humane euthanasia of animals. We believe the correct statute is La. R.S. 40:1023(C), which provides:
      C. It is unlawful for any person to use, or to possess with intent to use, any drug paraphernalia, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this Part.

      . Although the committee did not specifically identify any other aggravating factors, it presumably accepted the aggravating factors listed in the ODC's brief: prior discipline, dishonest or selfish motive, pattern of misconduct, bad faith obstruction of the disciplinary process, refusal to acknowledge wrongful nature of conduct, vulnerability of the victim, substantial experience in the practice of law, and illegal conduct.

      . The board noted that respondent's explanation that he did not represent himself to be an attorney is illogical, given that the state correction personnel would have no reason to ask respondent for his bar roll number if he had explicitly identified himself as being ineligible to practice law, as respondent claims.

      . Standard 5.11 provides, in pertinent part: Disbarment is generally appropriate when:

      (B) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.

      .The board noted that the hearing committee declined to impose permanent disbarment in the hope that respondent could be rehabilitated. However, the board found the hearing committee's rationale cannot be supported, given that this case is "deemed admitted," respondent presented no evidence, and there are no mitigating factors of record. The board pointed out that "[t]he mere hope of a lawyer’s rehabilitation is not only an intangible criterion which appears nowhere in Rule XIX or in the ABA Standards, but hope is also something that could be said to apply in every case."