text:
    Jerome WILKERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-744.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.
    Robert Wesley, Public Defender and Ar-amis N. Donell, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in Case No. CF08-6973-O in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, COHEN and JACOBUS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kelley Jerrod SHELTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-745.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.
    Kelley J. Shelton, Gainesville, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted because the trial court’s denial order failed to inform petitioner that he had thirty days to appeal. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the denial of his rule 3.800(a) motion for post-conviction relief in Case Nos. 03-3900-CF-A-X; 03-3753-CF-A-X; 03-3660-CF-A-X; 03-3715-CF-A-X; 03-3661-CF-A-X; 03-3691-CF-A-X; 03-3658-CF-A-X; 03-3692-CF-A-X; 03-3659-CF-A-X; and 03-3662-CF-A-X in the Circuit Court in and for Marion County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, LAWSON and JACOBUS, JJ., concur.


author: VILLANTI, Judge.

text:
    Christopher NICKELSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4992.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Christopher Nickelson appeals the order imposing restitution following his convictions for scheming to defraud and equity skimming. Nickelson argues that the trial court erred by refusing to hold an eviden-tiary hearing on the amount of restitution and by relying instead on the victim’s trial testimony to set the amount of restitution over Nickelson’s objection. The State properly concedes error. As we did in Nickelson’s codefendant’s case, Nickelson-Ippolito v. State, 17 So.3d 1257 (Fla. 2d DCA 2009), we reverse and remand for a new restitution hearing.

Reversed and remanded for further proceedings.

WHATLEY and KELLY, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Khatrydia DORSEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2670.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.
   KHOUZAM, Judge.

Khatrydia Dorsey appeals the dismissal of her motion to modify sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). “Such an order is not reviewable by appeal but may be reviewed under this court’s certiorari jurisdiction.” Velazquez v. State, 917 So.2d 306, 306 (Fla. 2d DCA 2005). Therefore, we treat this appeal as a timely filed petition for writ of certiorari and deny it.

Dorsey’s counsel filed the motion to modify sentence on the afternoon of the sixtieth day after sentencing, within a few hours of the time that the circuit court lost jurisdiction to consider the motion. See Fla. R.Crim. P. 3.800(c). The motion contained no explanation of extenuating circumstances justifying the late filing, nor did counsel file a separate motion for extension of time. Thei’efore, the circuit court did not depart from the essential requirements of law when it dismissed the motion for lack of jurisdiction. See Brantley v. Holloway, 685 So.2d 31, 32 (Fla. 2d DCA 1996) (holding that the circuit court lost jurisdiction to rule on a rule 3.800(c) motion hours after it was received because it was filed on the last day of the sixty-day timeframe without an explanation or motion for extension of time). But see Graham v. State, 24 So.3d 781, 783 (Fla. 5th DCA 2009) (holding that the circuit court retains jurisdiction to hear rule 3.800(c) motions filed any time before the sixty-day timeframe expires).

The petition for writ of certiorari is denied.

NORTHCUTT and WALLACE, JJ., Concur.


text:
    Adel ORTIZ, Petitioner, v. Maiaa RAMOS, Respondent.
    No. 5D10-674.
    District Court of Appeal of Florida, Fifth District.
    March 29, 2010.
    Adel Ortiz, Orlando, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Adel Ortiz seeks habeas corpus relief after being sentenced to 179 days for civil contempt, in failing to pay court ordered child support. We agree, grant the petition, and vacate the order of contempt.

In his petition, as with many that this Court receives from Orange County, Ortiz argues that he does not have the present ability to pay the purge amount set for his release and the trial court failed to make the appropriate findings that he has the present ability to pay the purge set at $8,599.96. This amount is the total of Petitioner’s child support arrears, as set forth in the order of contempt. No response was filed with this Court to refute Ortiz’s assertions.

The order of contempt rendered by the trial court in this case generally sets forth that the failure to pay child support was willful and Ortiz has the present ability to pay the full arrears amount. Unfortunately, the Orange County trial court used a form order (Judgment and Sentence for Contempt) that fails to provide any factual support for those findings. The order of contempt must also set forth a “recital of facts” on which these findings are based. Fla. Fam. L.R.P. 12.615(d)(1). It is further obligatory, in the event of a purge amount being set, to set forth in a “separate affirmative finding” that the contem-nor has the present ability to comply with the purge and to present the “factual basis” to support that finding. Fla. Fam. L.R.P. 12.615(e). The order in this case does not satisfy these requirements. Therefore, we grant the petition for writ of habeas corpus, ordering that Ortiz be immediately released.

PETITION GRANTED.

PALMER, EVANDER and COHEN, JJ. concur.


text:
    Jalloul AZZOUZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and St. Anthony’s Hospital Inc., Appellees.
    No. 1D10-0513.
    District Court of Appeal of Florida, First District.
    March 30, 2010.
    Jalloul Azzouz, pro se, Appellant.
    John W. Kunberger, Clerk, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. First Nat’l Bank v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208 (Fla. 1st DCA 1984).

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


author: SILBERMAN, Judge.

text:
    Mario ESQUIVEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5036.
    District Court of Appeal of Florida, Second District.
    March 31, 2010.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Mario Esquivel appeals the order revoking his probation and the resulting sentences for criminal mischief in excess of $1000 in circuit court case number 07-CF-20505 and for petit theft in circuit court case 08-CF-6526. We affirm the revocation of probation and sentence in case number 07-CF-20505. In case number 08-CF-6526, we affirm the revocation of probation, but we reverse the five-year sentence on the first-degree misdemeanor of petit theft. See § 812.014(3)(b), Fla. Stat. (2007). We remand for the trial court to sentence Esquivel for the petit theft to a term of imprisonment of no more than one year. See § 775.082(4)(a), Fla. Stat. (2007).

Affirmed in part, reversed in part, and remanded.

ALTENBERND and MORRIS, JJ., Concur.

      . This appeal was originally briefed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but this court ordered merits briefing on the sentencing issue in case number 08-CF-6526.


text:
    Carl SHELL, Appellant, v. Alberto GOMEZ, Appellee.
    No. 4D09-1500.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Carl Shell, Hollywood, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

TAYLOR and CIKLIN, JJ., and BLANC, PETER D., Associate Judge, concur.


author: STEVENSON, J.

text:
    Annie MOHORN, Appellant, v. Sylenia THOMAS and Ronnie Kennedy, Appellees.
    No. 4D09-3984.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Kathleen K. Pena of Legal Aid Service of Broward County, Inc., Plantation, for appellant.
    No appearance for appellees.
   STEVENSON, J.

In this appeal, Annie Mohorn challenges an order denying her chapter 751 petition for temporary custody of her granddaughter, R.L.K. R.L.K.’s birth certificate names Sylenia Danielle Thomas as her mother and Ronnie Kennedy as her father. In October 2008, a little less than one year after the child’s birth, both Sylenia Thomas and Ronnie Kennedy executed a document that gave “all rights” and “legal guardianship” of R.L.K. to the paternal grandparents, Annie R. Mohorn and Randolph Mohorn. The document was signed by both parents and by both grandparents and notarized. In April of 2009, Annie Mohorn filed a chapter 751 petition for temporary custody of R.L.K. The trial court denied the petition, finding that the appearance of Ronnie Kennedy’s name on the birth certificate was insufficient to establish paternity for purposes of chapter 751 and that the father was required to file a paternity action pursuant to chapter 742 to “establish/ratify” paternity before Mo-horn could pursue custody under chapter 751. We reverse the order appealed as paternity had been sufficiently established for purposes of chapter 751.

Chapter 751 is entitled “Temporary Custody of Minor Children by Extended Family” and is intended to provide a mechanism by which extended family members can obtain the legal documentation necessary to permit them to fully provide for the child for whom they are caring, i.e., to allow them to consent to medical treatment, to obtain copies of the child’s records, and to enroll the child in school. See § 751.01, Fla. Stat. (2009). Only an “extended family member” may bring an action under chapter 751. See §§ 751.02-.03, Fla. Stat. Chapter 751 defines an “extended family member” as “any person who is: (1)[a] relative within the third degree by blood or marriage to the parent; or (2)[t]he stepparent of a child if the stepparent is currently married to the parent.” § 751.011, Fla. Stat. Chapter 751 does not define the term “parent.”

Chapter 742 is entitled “Determination of Parentage” and is the statutory vehicle by which paternity is established for children born out of wedlock. See § 742.10(1), Fla. Stat. Section 742.011 provides that “[a]ny woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.” Section 742.10 sets forth varying ways in which paternity may be established and provides, in relevant part, that

... if an affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as provided for in s. 382.013 [governing birth certificates and providing that where mother is not married, father’s name may not be put on birth certificate unless both mother and father execute affidavit and providing that father be advised of consequences and responsibilities arising from signing such affidavit and placement of name on birth certificate] or s. 382.016 [governing amendment of birth and death certificates] is executed by both parties; ... such adjudication, affidavit, or acknowledgment constitutes the establishment of paternity for purposes of this chapter. If an ad/judicatory proceeding was not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity, which is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2), creates a rebuttable presumption, as defined by s. 90.304, of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier.

§ 742.10(1), Fla. Stat. (emphasis added). Subsection (4) goes on to provide that once the sixty-day period referenced in subsection (1) has passed, the “signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact.” § 742.10(4), Fla. Stat. Subsection (5) provides “[judicial or administrative proceedings are not required or permitted to ratify an unchallenged acknowledgment of paternity.” § 742.10(5), Fla. Stat.

Here, Kennedy has twice signed a voluntary acknowledgement of paternity within the meaning of section 742.10(1). R.L.K. was born at Plantation General Hospital. In order for the hospital to have listed Kennedy as the father on the birth certifí-cate, Kennedy (and the child’s mother) was required to sign an affidavit acknowledging paternity and to be advised of the consequences of signing such acknowledgment. See § 382.013(2)(c), Fla. Stat. Second, in the signed and notarized October 2008 document purporting to give “all rights” and “legal guardianship” of R.L.K. to the paternal grandparents, Kennedy (and the mother) again acknowledges his paternity. These unchallenged voluntary acknowledgments of paternity have established paternity in Kennedy. No further proceedings under chapter 742 were required, or permitted, to establish Kennedy’s paternity. See § 742.10(4), (5), Fla. Stat.; State, Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157, 160-61 (Fla. 1st DCA 2007) (emphasizing that unchallenged voluntary acknowledgment of paternity serves to establish paternity and holding it was error for court to order DNA testing where father had not alleged grounds in 742.10(4) or the “newly discovered evidence” necessary to disestablish paternity under section 742.18). The establishment of paternity under chapter 742 was sufficient to render Kennedy a “parent” within the meaning of chapter 751 and to thus render Annie Mohorn an “extended family member” within the meaning of chapter 751. The trial court thus erred in requiring Kennedy to file a paternity suit under chapter 742 before it would entertain Mohorn’s chapter 751 petition. The order appealed is reversed and the matter remanded for further proceedings.

Reversed and Remanded.

WARNER and POLEN, JJ., concur.

      . Because we find that paternity has been fully and completely established under the requirements of chapter 742, we need not determine whether a party may be deemed a "parent” for the purposes of chapter 751 by lesser means.


author: HAZOURI, J.

text:
    Cynthia TOLEDO, Petitioner, v. PUBLIX SUPER MARKETS, INC., Miguel Lopez Jr., Inc., Kimco Realty Corporation, Trammel Crow Interests Co., d/b/a Crow Holdings, Trammel Crow Real Estate Investors, CH Realty III/Cypress, LP and The Continental Real Estate Companies, Respondents.
    No. 4D09-4444.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.

      David J. Gorewitz of David Gorewitz, P.A., Melbourne, for petitioner.
    Jerry McKim, David A. Fagerstrom and David S. Tadros of Walton Lantaff Schroeder & Carson, L.L.P., West Palm Beach, for respondents.
   HAZOURI, J.

Cynthia Toledo petitions this court for a writ of certiorari seeking review of an order requiring her attorney, David Go-rewitz, to produce his case file from an unrelated automobile accident case to the court for an in camera inspection. We grant the petition and quash the order.

On December 31, 2004, Toledo slipped and fell in a parking lot adjacent to a Publix supermarket. She suffered an injury that required lumbar surgery. Toledo filed a complaint against Publix, CH Realty Cypress, LP (the owners or managers of the parking lot), and other defendants who are not a party to this appeal.

On August 15, 2007, Toledo was involved in an automobile accident in which she claimed to have sustained injuries. As a result of that accident, she retained attorney Gorewitz to handle the matter.

During the discovery process in the slip and fall case, Publix and CH Realty served attorney Gorewitz with a subpoena duces tecum, requesting “any and all non-privileged portions of your file regarding Cynthia Toledo,” with the requested file being the case file concerning the auto accident of August 15, 2007.

Attorney Gorewitz objected to the subpoena duces tecum, citing the attorney-client and work-product privilege. He argued that defense counsel had no right to rummage through his file and that if defense counsel believed he was entitled to any particular document, that counsel could file a request for production of those documents.

Publix and CH Realty, not being satisfied with attorney Gorewitz’s response, set the matter for hearing and sought an in camera inspection of Gorewitz’s file. Pub-lix and CH Realty asserted that there was insufficient detail in a privilege log previously filed by attorney Gorewitz to allow a meaningful determination as to whether non-privileged documents existed. Without requiring Publix and CH Realty to identify a basis for why they were entitled to invade opposing counsel’s file, the trial court ordered Gorewitz to submit his entire file concerning the August 15, 2007, auto accident for an in camera inspection.

Toledo contends the subpoena in question is a classic “fishing expedition” and that the trial court’s order departs from the essential requirements of law. We agree.

Certiorari lies to review trial court orders compelling production of discovery claimed to be privileged or otherwise protected as work product or attorney-client, as this would present the potential of a departure from the essential requirements of law which would cause material harm for which there is no adequate remedy on final appeal.

See Snyder v. Value Rent-A-Car, 736 So.2d 780, 781 (Fla. 4th DCA 1999) (citations omitted).

Florida Rule of Civil Procedure 1.280(b)(1) states that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action.” Rule 1.280(b)(1) also states that “fi]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” The rule then provides

a party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation ... only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Fla. R. Civ. P. 1.280(b)(3).

Publix and CH Realty made no attempt by way of interrogatories or requests for production to determine whether there were documents in the auto accident file relevant to the instant case; much less that they were “unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Curiosity about the contents of the auto accident file does not satisfy the relevancy requirement. Having failed to make even a minimal showing of entitlement to any documents contained in the auto accident file, there is no justification under the Florida Rules of Civil Procedure to order Gorewitz to provide the trial court with his file for an in camera inspection. We, therefore, grant the petition and quash the order.

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


author: SUAREZ, J.

text:
    James GRIFFIN, Appellant, v. ELLIS ALUMINUM & SCREEN, INC., Appellee.
    No. 3D08-1782.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.

      Feiler & Leach and Martin E. Leach, for appellant.
    Cole Scott & Kissane and Scott A. Cole, Miami, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Plaintiff, James Griffin (“Griffin”), appeals from the trial court’s denial of a motion for new trial after a jury verdict in the defendant’s, Ellis Aluminum & Screen, Inc. (“Ellis”), favor. Griffin brought a multi-count complaint against Ellis alleging that Ellis negligently installed a handrail at Griffin’s home and that the negligent installation caused him to fall, resulting in extensive personal injuries. We affirm.

In March or April 2004, Ellis installed a handrail along the stairway at the Griffin home in the Florida Keys. Between installation and the date of the incident, there were no complaints about the railing. About ten months after installation, on January 30, 2005, Griffin and his wife kayaked in Florida Bay to a hotel in Key Largo where they ate lunch. During lunch, Griffin consumed three to four alcoholic drinks.

The Griffins then invited the bartender, Julia, and her husband to their home. The four arrived at the Griffins’ home around 4:00 p.m. and sat in the hot tub into the evening drinking margaritas. Sometime between 7:30 p.m. and 9:00 p.m., Ms. Griffin went to bed and Julia and her husband went home. Griffin testified at trial that he grabbed the four tumblers from which they had been drinking, left the hot tub and proceeded up the stairs. He testified that on the last step he grabbed the handrail, which detached from the snap plate allowing him to fall and suffer extensive injuries. In March 2005, Ms. Griffin called Ellis to have them repair loose pickets on the opposite railing, but did not complain about a loose handrail attachment on the other side. In July 2005, Griffin brought the current suit against Ellis. The case proceeded to trial on two counts: negligence and negligence per se pursuant to Florida Statute section 553.84. The jury returned a verdict in favor of Ellis and Griffin brought this extensive appeal alleging numerous grounds for a new trial.

Griffin first claims that the trial court erred in allowing Ellis to present evidence at trial of a subsequent fall by Griffin at another location. Griffin objected at trial and argues on appeal that the sole purpose for Ellis bringing out evidence of Griffin’s fall in a parking lot one year after the incident in suit was to show the jury that Griffin had a propensity to fall after consuming alcohol. This, Griffin argues, leads to the inference that the only reason he fell at home was also because of his drinking. Ellis, on the other hand, argues that the court correctly allowed the evidence because it was presented to show that Griffin was able to return to his pre-accident activities, that there may be another cause for some of the injuries he claimed to have sustained in this accident, and that it went to mitigation of damages. Doctors had told Griffin to refrain from engaging in certain activities and to change his lifestyle, which he failed to do. Ellis also argued that the defendant’s toxicologist would say that this was an example of the effect of alcohol on Griffin, which Griffin refused to acknowledge. The second fall was relevant to confirm the toxicologist’s testimony.

Our standard of review of a trial court’s decision to admit evidence is abuse of discretion. Hudson v. State, 992 So.2d 96, 107 (Fla.2008), cert. denied, — U.S. — , 129 S.Ct. 1360, 173 L.Ed.2d 621 (2009); Sims v. Brown, 574 So.2d 131, 133 (Fla.1991) (“Where a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, appellate courts will not overturn that decision absent clear abuse of discretion.”); H & H Elec., Inc. v. Lopez, 967 So.2d 345 (Fla. 3d DCA 2007). Evidence of prior as well as subsequent accidents is generally inadmissible to prove the defendant’s negligence with regard to the accident at issue. If the evidence of a substantially similar accident is offered, however, for a material purpose other than to prove negligence, it may be admissible if there is a logical tendency to establish its relevance to the case at hand. In the instant case, although the two accidents are similar, having occurred after lengthy periods of alcohol consumption, we agree with the trial court that the evidence was not admitted to show propensity or character. The evidence was probative of Griffin’s pre- and post-accident condition and lifestyle as it related to Griffin’s claims against Ellis for pain and suffering, mental anguish and non-economic damages, as well as to mitigation of damages. We conclude, based solely on these facts, that the trial court did not abuse its discretion to admit the evidence of the subsequent fall.

Appellant next argues on appeal that the trial court erred in allowing the defendant to disclose the fact that Cameron Ashley had been a defendant in the lawsuit. We do not agree and affirm.

Cameron Ashley was the manufacturer of the aluminum used by Ellis in the railing at the Griffin home. Cameron Ashley had been a defendant in the lawsuit and had settled with Griffin. The mention of Cameron Ashley occurred during Ellis’ cross examination of Griffin. At trial Griffin admitted that he had had six to seven drinks on the afternoon of the accident. In an attempt to impeach Griffin, Ellis’s counsel brought forward two sets of interrogatories; one propounded by Cameron Ashley and one propounded by the defendant. In both answers to interrogatories, Griffin stated that he had had only 1.5 ounces of alcohol to drink on the date of the accident. While attempting to impeach with Griffin’s answers to the interrogatories, Ellis’s counsel asked Griffin if he was not asked the same questions by Cameron Ashley. At that point an objection was raised and, at sidebar, counsel withdrew the question. Ellis’s counsel then read from the “second set of interrogatories” and proceeded to question Mr. Griffin. Griffin argues that through this the jury was informed that Cameron Ashley had been a party and had settled. We do not agree.

Section 768.041(3), Florida Statutes (2007), prohibits anyone from presenting to the jury the fact that there has been a release or a covenant not to sue or a dismissal of a party to the action. Based on the record, this fleeting mention of Cameron Ashley by Ellis did not inform or even suggest to the jury that Cameron Ashley had been a party to the action, or had settled out of the lawsuit.

Appellant next argues on appeal that the trial court committed reversible error when it permitted Ellis to comment on Griffin’s failure to call Ms. Griffin at trial. We find any error to be harmless. During opening, counsel for Ellis made the statement that Theresa Griffin, the Plaintiffs wife, was not going to be called by the Plaintiff. She was at the party the night of Griffin’s fall and lived there, but she was not going to be called. The trial court overruled the Plaintiffs objection and request for mistrial.

It is improper for one party to comment upon another party’s failure to call a witness when the witness is equally available to both parties. Terry v. State, 668 So.2d 954, 963 (Fla.1996). Aside from the fact that there was no proffer that the witness was equally available to both parties, we would still hold the comment to be harmless. Later during trial, Plaintiffs counsel commented on Ellis’ failure to call the installer of the handrail at the Griffin home. We find it difficult to believe that the Plaintiff would so strenuously object to something that the Plaintiffs counsel also did at trial. Based on the entire record we find that both of these comments were harmless.

Appellant next claims that the trial court committed reversible error by allowing Ellis’ counsel to allegedly comment, in its opening statement, that Ellis had never been sued. Generally, it is not proper to allow testimony of no prior accidents. See Sims v. Brown, 574 So.2d 131 (Fla.1991). Defendant’s counsel stated in its opening statement that Ellis had installed the railing ten months prior to the incident and that for those ten months there had never been any complaints from the Griffins. A few moments later, counsel stated that “and he’s suing the respected businessman Bill Ellis and his wife Joyce whose railing never had a failure of this nature except for this claim.” Although this comment is susceptible of the interpretation that Ellis has never been sued for a railing failure, it is also reasonable to interpret the statement to mean, in context, that there were no complaints from the Griffins for the ten months between installation of the railing and Griffin’s fall. We find the comment, if error, harmless.

The Appellant next argues on appeal that the trial court erred in granting a directed verdict against him on his claim that Ellis violated section 553.84, Florida Statutes (2007), and by refusing Griffin’s requested jury instruction. We do not find error and affirm. Section 553.84 provides that “any person or party ... damaged as a result of a violation of this part or the Florida Building Code, has a cause of action ... against the person or party who committed the violation.” Upon review of the record, it would appear that Plaintiffs liability expert, Dr. Masory, never testified that a building code violation occurred. There was testimony concerning the building code, but the question was never posed to Dr. Masory and he never testified that, in fact, there was a building code violation. Therefore, we deny the appellant’s claim and affirm the trial court.

Griffin claims that the entire trial was rendered fundamentally unfair as a result of the trial judge’s momentary acts of falling asleep, once during voir dire, and once during Ellis’s opening statements. The record shows that during voir dire no objections were made and, furthermore, there is no showing of prejudice. The second incident occurred briefly during opening statement; the court correctly read back the record and again, no prejudice has been demonstrated. See Lopez v. McDonough, 2006 WL 2802002 (M.D.Fla. Sep. 28, 2006) (“[Ejven if the allegation regarding the trial judge sleeping were true, [Petitioner] testified that it occurred during the closing argument portion of the case and not during the presentation of evidence.... Consequently, there is no indication that [Petitioner] suffered any prejudice as a result of this allegation.”); United States v. White, 589 F.2d 1283, 1289 (5th Cir.1979) (finding that judge falling asleep during defense counsel’s opening statement did not cause prejudice or warrant reversal). We find no error when the incidents in question were so brief and were corrected early in the proceedings. We affirm all remaining issues.

Affirmed.

      . Ellis's defense was that Griffin was intoxicated and fell down the stairs, not that the railing failed as Griffin asserted.

      . See also Section 90.403, Florida Statutes (2008), which provides that “relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” In addition, relevant evidence may be "admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose.” § 90.107, Fla. Stat. (2008). When such evidence is admitted, "the court, upon request, shall restrict [that] evidence to its proper scope and so inform the jury at the time it is admitted.” § 90.107 (emphasis added). Thus, if the contested evidence was relevant to any of the claims against Ellis, it could properly be admitted under sections 90.403 and 90.107.

      .Generally, evidence of prior or subsequent accidents which are not substantially similar would be excluded. See Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 14 (Fla. 1st DCA 1996).

      . The evidence was also admissible as a challenge to Griffin's credibility. In both instances, Griffin's pre-trial testimony contradicted his trial testimony especially as to his consumption of alcohol. Griffin's credibility was an issue for the jury to determine.


text:
    Johnnie CHILDS, Appellant, v. NFI NATIONAL FREIGHT and Gallagher Bassett Services, Inc., Appellees.
    No. 1D09-0457.
    District Court of Appeal of Florida, First District.
    March 31, 2010.

      Keith C. Warnock of Keith C. Warnock, P.A., Daytona Beach, for Appellant.
    Anna M. Jemjemian of Pallo, Marks, Hernandez, Gechijian & DeMay, P.A., Daytona Beach, for Appellees.
   PER CURIAM.

We affirm on the merits, reverse the denial of costs to claimant for successfully resisting the fraud defense, and decline at this juncture to review the order finding entitlement to costs and fees, since no amounts have been determined.

KAHN, BENTON, and CLARK, JJ„ concur.


text:
    Euna VERLY, Appellant, v. ORANGE COUNTY/FEMALE DETENTION CENTER and Alternative Service Concepts, LLC-Orlando, Appellees.
    No. 1D09-4159.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Frederick Daniels, Orlando, and Bill McCabe, Longwood, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch & Westcott, P.A., Winter Park, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s February 16, 2010, order to show cause, we conclude the order being appealed is a non-appealable, non-final order. See Fla. R.App. P. 9.180(b)(1); Fla. Retail Fed’n Self-Insured, Fund v. Quintero, 909 So.2d 332, 333 (Fla. 1st DCA 2005). Accordingly, the appeal is DISMISSED for lack of jurisdiction.

WOLF, WEBSTER AND THOMAS, JJ., concur.


text:
    Charles J. MONTESINOS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0051.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Clyde M. Taylor, III, St. Augustine, for Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on February 24, 2009, in Clay County Circuit Court case number 2007-CF-001731, is granted. Upon issuance of mandate herein, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal pursuant to Florida Rule of Appellate Procedure 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, he may file a motion with the lower tribunal seeking the appointment of counsel on appeal.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    McAurthur HARVEY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1022.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Matt Shirk, Public Defender, Fourth Judicial Circuit, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on January 15, 2010, in Duval County Circuit Court case number 16-2009-CF-006072-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). The court notes that the lower tribunal has appointed the Office of the Public Defender to represent petitioner on appeal.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    J.L., the father, Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D10-142.
    District Court of Appeal of Florida, Third District.
    April 1, 2010.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for the Department of Children and Families; Hillary S. Kambour, Appellate Counsel, for the Guardian Ad Litem Program.
    Before SHEPHERD, SUAREZ, and CORTINAS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The father, J.L., appeals the trial court’s order adjudicating his minor child, M.L., dependent, insofar as the findings of fact referencing him as an offending parent are unsupported by the evidence adduced at trial. Upon consideration of the Department of Children and Family Services’ confession of error in this regard, we hereby reverse the order on appeal, to the extent the findings of dependency pertain to J.L., and remand for further proceedings consistent with this opinion. This Court further notes the Guardian Ad Li-tem’s adoption of the Department’s confession of error, and withdrawal of its answer brief in this matter.

Reversed and remanded.


author: ORFINGER, J.

text:
    R.A., Father of J.A., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-2687.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2010.
    Eddie J. Bell, Daytona Beach, for Appellant.
    Jeffrey D. Gillen, Statewide Appeals Director, Department of Children and Families, West Palm Beach, for Appellee.
    Annette M. Lizardo, Tavares, for Guardian Ad Litem.
   ORFINGER, J.

The father, R.A., appeals the trial court’s order terminating his parental rights to his child, J.A. Because the father was making a determined effort to rehabilitate himself and there was no evidence that termination of parental rights was the least restrictive means of protecting the child, we reverse the termination order and remand for reinstatement of the father’s case plan.

J.A. was born on October 9, 2006, while her mother, J.B., was incarcerated, and placed in shelter care three days later. The Department of Children and Families (“DCF”) sheltered J.A. due to her mother’s incarceration and the father’s admitted inability to provide J.A. with adequate care. J.A. was ultimately placed in non-relative pre-adoptive placement with her current foster parents in July 2007.

DCF filed a petition for dependency, and a reunification case plan was approved on January 3, 2007. On April 9, 2007, the court approved an amended case plan, which required the father to complete a substance abuse evaluation and treatment, if needed. The goal of the plan remained reunification with a target date of October 12, 2007. Seven months later, on November 6, 2007, DCF filed a termination petition, alleging that the father’s rights should be terminated because he had engaged in conduct that continued to threaten the safety, well-being, or physical, mental or emotional health of the child irrespective of the provision of services pursuant to section 39.806(l)(c), Florida Statutes, and he had failed to substantially comply with his case plan pursuant to section S9.806(l)(e), Florida Statutes. The trial court rejected termination under section 39.806(l)(c), but found that DCF had proven its case as to the grounds alleged under section 39.806(l)(e) and that termination was in the child’s manifest best interests and the least restrictive means of preventing harm to J.A. In its ruling, the trial court found:

First, no evidence was submitted that the father is currently engaged in any conduct toward his child that would threaten her life, safety, well-being, or physical, mental, or emotional health. In fact, he has custody of an older child, M.A., who has not been removed from his care since reunification. It would seem logical that if this child’s life, safety[,] well-being, or physical, mental or emotional health would be endangered upon reunification with her father, then M.A. would have been considered at risk and removed from her father’s care.

The court also found that the father was making a determined effort in substance abuse treatment.

Section 39.806(l)(e)l. provides that parental rights can be terminated when “[t]he child continues to be abused, neglected, or abandoned by the parents.” The failure of substantial compliance within the period of twelve months after the child is adjudicated dependent constitutes evidence of abuse and neglect and is also grounds for termination, unless the failure to “substantially comply” is due to the parent’s lack of financial resources or DCF’s failure to make reasonable efforts toward reunification. § 39.806(l)(e), Fla. Stat. (2007). “ ‘Substantial compliance’ means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” § 39.01(71), Fla. Stat. (2007) (emphasis added); see E.R. v. Dep’t of Children & Family Servs., 937 So.2d 1196, 1198 (Fla. 3d DCA 2006).

“[T]he ‘substantially comply’ language contained in section [39.806] ... is a term of art [that] requires more than just a determination that the case plan has not been completed.” B.L. v. Dep’t of Children & Families, 950 So.2d 1264, 1266 (Fla. 5th DCA 2007). The trial court is required to determine whether the cause that led to the dependency “ha[d] not been significantly remedied to the extent that the well being and safety of [J.A.] will be endangered upon the child ... being returned to the [father].” Id. As the court found, the father has obtained stable housing and employment, regularly visited J.A., completed parenting class, and was paying child support. While substance abuse was part of the father’s history, there was no indication, as the trial court specifically found, that the father’s substance abuse caused harm to J.A.

We conclude the trial court erred in finding that DCF proved by clear and convincing evidence that the father’s rights should be terminated under section 39.806(l)(e). See J.C. v. Dep’t of Children & Family Servs. (In re G.C.), 6 So.3d 643 (Fla. 2d DCA 2009). While the State has a paramount interest in protecting children from harm, there exists a well-recognized fundamental right of parents to have the custody and companionship of their children. Those rights can be intruded by utilization of the least restrictive means of protecting the child from serious harm. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565 (Fla.1991). The least restrictive means test requires that “measures short of termination be utilized if such can permit the safe reestablishment of the parent-child bond.” O.M. v. Dep’t of Children & Family Servs. (In re G.C.A.), 863 So.2d 476, 480 (Fla. 2d DCA 2004). Applying this standard, we conclude that DCF failed to establish the father’s actions harmed J.A., and, as the trial court found, any evidence of prospective harm was speculative at best. Instead, the evidence showed that the father had an established relationship with J.A., was making a determined effort to rehabilitate himself, and that J.A. would not be harmed by continued custody with her foster family while the father worked on his case plan.

The trial court apparently concluded that proof of any of the statutory grounds under section 39.806 is enough to terminate parental rights. That view ignores the additional requirement that termination must be in the manifest best interests of the child pursuant to section 39.810. See In re E.D., 884 So.2d 291, 295 n. 3 (Fla. 2d DCA 2004). And beyond these statutory requirements, the termination of parental rights is subject to the constitutional requirement that termination is the least restrictive means of protecting the child from serious harm. V.W. v. Dep’t of Children & Family Servs. (In re L.B.W.), 863 So.2d 480, 483 (Fla. 2d DCA 2004) (citing Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991)). It is these last two requirements that are lacking here.

For these reasons, we reverse the termination order and remand this matter for reinstatement of the most recent case plan, which had a goal of reunification. See B.B. v. Dep’t of Children & Families (In re G.R.), 793 So.2d 988, 989 (Fla. 2d DCA 2001) (holding that DCF acted prematurely in seeking termination of parental rights where mother was “making a determined effort to rehabilitate herself’ and children were “well cared for and secure”); see also J.H. v. Dep’t of Children & Family Servs. (In re H.H.), 865 So.2d 634, 636 (Fla. 2d DCA 2004); R.W.W. v. Dep’t of Children & Families (In re C.W.W.), 788 So.2d 1020 (Fla. 2d DCA 2001) (finding that DCF failed to establish that termination was least restrictive means to prevent harm to child where DCF did not demonstrate that child would be harmed by continued custody with foster family while mother worked on case plan). On remand, as the time has already passed for completion of the case plan, the trial court should give the father a reasonable amount of additional time in which to complete his case plan. See generally C.A. v. Dep’t of Children & Fami lies, 988 So.2d 1247, 1249 (Fla. 4th DCA 2008).

REVERSED AND REMANDED.

PALMER and EVANDER, JJ., concur.

      . Apparently, the father had tested positive for cannabis.

      . The court also terminated the mother’s parental rights. She does not appeal that determination.


text:
    R.N., a minor, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-1194.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Jonathan Jay Kirsehner of Jonathan Jay Kirschner, Esq. & Associates, LLC, Fort Pierce, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

R.N., a twelve year old juvenile, petitions this court for a writ of habeas corpus seeking release from secure detention. R.N. was detained on December 16, 2009, following the State’s filing of a petition for delinquency. R.N. is charged with several counts of sexual battery and lewd and lascivious conduct. His secure detention has continued since then because of the “good cause” demonstrated for continuances of his adjudicatory hearing.

This court granted R.N.’s first petition and directed the trial court to immediately conduct the hearing required by Florida Statute section 985.26(4) to determine if there exists the “need for continued detention of the child.” We noted that the need for further continuance of the proceedings is a separate inquiry apart from the need for continued detention. Following a hearing, the trial court continued the secure detention, again referencing only the need for the further continuance.

We grant the petition once again. Upon reviewing the applicable statute we maintain that once detained for thirty days, the trial court shall hold a hearing at the end of each 72 hour period to “determine the need for continued detention of the child and the need for further continuance of proceedings for the child or the state.” See § 985.26(4), Fla. Stat. (2009) (emphasis added). See also J.J. v. Fryer, 765 So.2d 260, 263 (Fla. 4th DCA 2000) (“The power to place those charged with ... a delinquent act in detention is entirely statutory in nature.”) (quoting S.W. v. Woolsey, 673 So.2d 152, 154 (Fla. 1st DCA 1996)).

We recognize that subsection (4) provides that the time limits in subsections (2) and (3) do not include periods of delay resulting from a continuance granted by the court for cause on motion of the child or his or her counsel or of the state. However, the remaining language of that section requires the trial court to conduct a hearing at the end of each 72 hour period “to determine the need for continued detention of the child and the need for further continuance of proceedings for the child or the state.” In this case the trial court has only determined the need for further continuance, not the separate inquiry concerning the continued need for detention. See generally S.B. v. Parkins, 10 So.3d 207 (Fla. 1st DCA 2009).

We therefore grant the petition and direct the trial court to immediately conduct a hearing to consider the need for continued detention, apart from the need for a further continuance.

Petition granted.

DAMOORGIAN, CIKLIN and GERBER, JJ., concur.

      . In this case, thirty days is the applicable time period because it involves an offense that would be, if committed by an adult, "a capital felony, a life felony, a felony of the first degree, or a felony of the second degree involving violence against any individual.” See § 985.26(2), Fla. Stat. (2009).


author: JOHNSON, J.,

text:
    STATE of Louisiana in the Interest of J.M.
    No. 2010-CK-0299.
    Supreme Court of Louisiana.
    March 5, 2010.
    JOHNSON, J., would grant and assigns reasons.
   JOHNSON, J.,

would grant the writ application for the following reasons.

|,If the purpose of the city’s curfew ordinance is to get underage youngsters off the street on school nights, where is the societal benefit when a police officer calls a juvenile back out of his residence to arrest him for a curfew violation. This juvenile was charged under Chapter 54:414 of the Code of Ordinances for New Orleans, which states in pertinent part:

2) Nighttime violations. If a police officer or other authorized peace officer reasonably believes that a minor is violating any provisions of subsection (b)(1) of this section, the officer shall:
a. Advise the minor that the minor is in violation of this section and instruct the minor to proceed immediately to the minor’s residence without any detour or stop; or
b. Take the minor into custody in accordance with the procedure established in Article 736 of the Louisiana Children’s Code.
⅜ ik *

Article 736 of the Louisiana Children’s Code provides that:

A peace officer or probation officer of the court may take a child into custody without order — if he has reasonable grounds to believe that the child’s family is in need of services and that the child’s conduct or surroundings are such as to endanger his welfare and that immediate removal appears to be necessary for his protection or control.

This matter involves the court’s denial of a motion to suppress evidence seized from a search which followed the juvenile’s arrest for a curfew violation. The 12defendant, J.M., who is a minor, was arrested after two police officers observed him a short distance away from his home on a Thursday evening, after the 8:00 p.m. curfew. One of the officers testified that he knew J.M., and knew that J.M. was a minor. When the officers first observed J.M., he was standing with others near a closed corner grocery store. The officers called out to J.M., but he did not respond. Instead, he proceeded across the street to his residence at 935 Seventh Street. As J.M. was about to enter his residence, he turned and walked towards the officers who were calling out to him. The officers testified that they then immediately arrested him in front of his residence, and in the presence of his uncle, solely on the basis of the curfew violation.

The officers chose to disregard Sec. 54-28 of the city ordinance, which provides that an officer SHALL issue a written summons and MAY NOT arrest a person for violations under this chapter except in certain circumstances:

(1) An officer shall issue a written summons and may not make a custodial arrest when citing a person solely for a violation of this chapter, except when one of the following circumstances exists:
a. The person does not possess identification issued by any municipal, state, territorial, federal, or other governmental authority within the United States; or
b. The person makes a statement that indicates an intent to disregard the summons or refuses to sign the summons; or
c. The person acts in a violent or destructive manner or makes a statement indicating that he or she intends to inflict injury to self or another or damage to property; or
d. The person is a habitual offender, defined as any individual with a criminal history of two or more felony convictions or five or more felony or municipal arrests for any offense; or
e. Based on the circumstances, an officer determines that it is absolutely necessary to make an arrest.
(2) When an officer determines that one of the factors enumerated in subsection (1) applies, the officer may use his or her discretion to issue a summons instead of making a custodial arrest for a violation of this chapter.
(3) Subsection (1) does not apply when an officer cites a |3person for a violation of article VIII of chapter 54 of the Code of the City of New Orleans.
* ⅜ *

In my view, the officers did not articulate any circumstances which would justify an arrest, as opposed to issuing a summons. This Court has already ruled that a curfew violation alone, cannot form the basis for a “protective frisk,” (see State v. Simms, 02-2208, 851 So.2d 1039, (La.6/27/03)). We should not hold that a curfew violation alone, can form the basis for the more invasive search pursuant to an arrest.

In Louisiana, the investigatory “Terry stop” is codified in La.Code of Crim. Proc. art. 215.1(A): “A law enforcement officer may only stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand his name, address, and an explanation of his actions.” Even after a lawful investigatory stop, a police officer may frisk the suspect only where a reasonably prudent person would be warranted in the belief that his safety or that of others is in danger. State v. Dumas, 00-0862, pp. 2-3 (La.5/4/01), 786 So.2d 80, 81. The officers’ testimony in this case failed to establish any articulable facts that created a reasonable suspicion that danger existed, and the police should not be permitted to “bootstrap” the illegal frisk into probable cause for an arrest and search when the defendant has not demonstrated any suspicious behavior.


text:
    In re Malcolm R. PETAL.
    No. 2010-B-0080.
    Supreme Court of Louisiana.
    March 26, 2010.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Malcolm R. Petal. For the reasons that follow, we will accept the recommendation of the disciplinary board, and permanently disbar respondent.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history.

Respondent Malcolm R. Petal was admitted to the practice of law in the State of Louisiana on October 9, 1998. He has been certified ineligible to practice law since June 2, 2004, based on his failure to comply with his mandatory continuing legal education requirements. Respondent was certified ineligible again on November 30, 2007, based on his failure to file his trust account authorization form.

On January 25, 2008, this court suspended respondent from the practice of law for a period of nine months for failure to comply with the minimum requirements of continuing legal education, neglecting a legal matter, failing to communicate with his client, charging a non-refundable legal fee, improperly attempting to settle his malpractice liability, and failing to cooperate with the ODC in its investigation. In re: Petal, 07-1299 (La.1/25/08), 972 So.2d 1138. Respondent has not sought reinstatement, and remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

DISCIPLINARY PROCEEDINGS

Formal Charges

The ODC filed two counts of formal charges against respondent. These formal charges allege the following facts:

Count 1
On December 11, 2008, Respondent was charged by Superseding Bill of Information for Conspiracy to Bribe a State Official in Connection with a Program Receiving Federal Funds in the matter entitled “United States of America v. William E. Bradley, Malcolm R. Petal, ” et al, in the United States District Court for the Eastern District of Louisiana, docket number 2:08-CR-176. Respondent and William Bradley were charged with conspiring to give cash payments to Mark S. Smith, an agent of the State of Louisiana, in connection with the approval of $1,350,000 in Louisiana film tax credits. On December 12, 2008, Respondent entered a plea of guilty to one count of the superseding bill of information. Respondent admitted that he paid a total of $135,000 to Bradley contingent upon Smith’s approving the tax credits. By the terms of the plea agreement, Respondent agreed to pay restitution to the State of Louisiana in the amount of $1,850,000.
Count 2
On July 24, 2008, Respondent appeared in Civil District Court for the Parish of Orleans on behalf of the plaintiffs in the matters entitled “Malcolm Petal, LIFT, LLC, and Film Factory, LLC v. George Brower, Omni Bancshares, Inc. and Tax Credit Capital, LLC,” docket number 08-7070 c/w 08-5722. Respondent had previously requested and obtained a temporary restraining order, by way of a petition for damages, against George Brower and Tax Credit Capital, LLC. After a hearing, Respondent was ^disqualified as counsel for LIFT, LLC and Film Factory, LLC due to his suspension from the practice of law. The court also determined that the request for the temporary restraining order was inappropriate and should not have been sought. In its reasons the court cited Code of Civil Procedure Article 2752 that expressly prohibits the issuance of a temporary restraining order to arrest the seizure and sale of immovable property, as well as the fact that Respondent did not give notice to the defendant. The court assessed damages of $6,556 and attorney’s fees of $5,000 against Respondent. Effective June 2, 2004, Respondent has been ineligible to practice due to his failure to comply with mandatory continuing legal education requirements. He has also been ineligible since November 30, 2007, for failure to comply with trust account registration requirements.

The ODC alleged respondent’s actions in Count 1 violated Rule 8.4(a)(b) and (c) of the Rules of Professional Conduct. It alleged his actions in Count 2 violated Rules 1.1,1.16(a), 3.3(d), 3.4(c), 5.5, and 8.4(a) and (d).

^Respondent filed an answer in which he admitted to the allegations of Count 1 but denied the allegations of Count 2. That answer stated, in its entirety:

COUNT 1: ADMITTED
MITIGATING CIRCUMSTANCE:
There is no allegation that I had any actual knowledge of the bribe, I was only convicted of conspiracy to commit bribery for having entered a contingency agreement with a lawyer, I was then deemed liable for the conspiracy when the lawyer bribed a public official. I had no knowledge he would do that with the money, and the government plea is specifically based on that fact.
COUNT 2: DENIED
I was only attempting to appear in proper person. LSA-R.S. 37:212(B) specifically states that nothing in the Statute shall be construed as prohibiting persons from protecting their |sown business interests. The subsequent statutes in the same scheme take pains to specifically refer to “natural persons,” so whether it is the common reading of the statute or not, it is the better reading of the statute that a person should able to protect his or her assets even if held in a Limited Liability Company. Not allowing a person to do so, would lead to the abusrd [sic] consequence that anyone could sue anyone who owns property in a Limited Liability Company and seize [sic] it without that person being able to offer any defense to the Court. Whether you agree with this analysis, I was clearly not attemptinto [sic] represent “another” and this count should be dismissed.
That said, I am willing to submit to any penalty the Board recommends. My only request is that as I am a young man, and none of the allegations involved intentional misconduct on my part, or any attempt to enrich myself, that the penalty allow me to prove my character in the future, and at some distant date, be able to reapply for a law license.

Hearing Committee Report

The matter proceeded to a formal hearing. Respondent failed to appear at the hearing. The ODC submitted documentary evidence in support of the formal charges, including the judgment of respondent’s federal conviction and the factual basis for his guilty plea. The ODC did not call any witnesses.

After reviewing the testimony and the evidence presented at the hearing, the hearing committee determined respondent violated the Rules of Professional Conduct as charged. With regard to Count 1, the committee determined respondent was convicted of a serious crime that reflects adversely on his moral fitness to practice law. Turning to Count 2, the committee found respondent initiated and appeared in court proceedings on behalf of another party at a time when he was suspended from the practice of law.

In addressing the question of sanctions, the committee noted this court has imposed permanent disbarment where an attorney intentionally engages in the unauthorized practice of law at a time when his license was suspended and knew that |fihe was prohibited from practicing law. In re: Crittenden, 03-0321 (La.9/5/03), 854 So.2d 318. The committee also pointed out that this court imposed permanent disbarment as a result of convictions of crimes involving extortion and racketeering, where the attorney’s actions were covered extensively by the media and caused “incalculable harm” to the reputation of the legal profession in Louisiana. In re: Edtuards, 04-0290 (La.7/2/04), 879 So.2d 718.

Considering this jurisprudence and the lack of any mitigating factors, the committee recommended respondent be permanently disbarred. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing the record, the board determined the factual findings of the committee did not appear to be manifestly erroneous. However, the board observed that the committee failed to make findings on or discuss the second issue in Count 2-i.e., the illegality of obtaining a temporary restraining order (“TRO”) in the executory process matter, contrary to La.Code Civ. P. art. 2752. Based on the record, the board found respondent at least knowingly, if not intentionally, sought the TRO in contravention of the established law. The board pointed out respondent was put on notice of the illegality of the procedure by the opposing parties, yet respondent still sought and obtained the signature of the duty judge on the order granting the |7TRO.

In determining an appropriate sanction, the board found that respondent engaging in conspiracy to commit bribery under Count 1 caused significant harm to the public by tarnishing the image of a legislative program that has provided substantial benefits to the citizens of Louisiana. It also found respondent pled guilty to conspiracy to commit bribery, a crime which necessarily involves dishonesty and deceit. It further determined respondent’s actions in Count 2 caused actual harm to the legal system and the opposing parties by engaging in the unauthorized practice of law and pursuing an illegal action. Specifically, it explained respondent attempted to represent LIFT, LLC and Film Factory, LLC while he was suspended from the practice of law and certified ineligible to practice law.

Relying on Standards 5.11 and 7.1 of the ABA’s Standards for Imposing Lawyer Sanctions, the board concluded the applicable baseline sanction is disbarment. In aggravation, the board recognized the following factors: prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct, multiple offenses, refusal |Rto acknowledge the wrongful nature of the conduct, and illegal conduct. The sole mitigating factor identified by the board was the imposition of other penalties.

The board then turned to an analysis of the prior jurisprudence of this court involving similar misconduct. In In re: Crittenden, 03-0321 (La.9/5/03), 854 So.2d 318, this court permanently disbarred an attorney for accepting a fee to handle a criminal matter when he was on interim suspension. In In re: Spears, 07-0499 (La.8/31/07), 964 So.2d 293, this court permanently disbarred an attorney based upon her criminal conviction for accepting bribes in exchange for her client’s release from prison while she was working as an indigent defender.

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

Neither respondent nor the ODC filed a timely objection in this court to the disciplinary board’s recommendation. However, after the expiration of the time for filing objections under Supreme Court Rule XIX, § 11(G)(1), respondent filed an “Answer and Response” to the board’s recommendation, in which he stated that he does not object to any sanction the court chooses to impose in this matter based upon his criminal conviction for conspiracy to commit bribery. Nonetheless, respondent argued his conviction does not involve elements of deceit and dishonesty, as stated by the board in its recommendation. Respondent also argued he did not have any knowledge of the actual bribe. As to Count 2, respondent argued it is “preposterous” to assert that he was practicing law by attempting to enjoin the foreclosure of a piece of property he owned through a limited liability company.

|9DISCUSSION

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: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. In re: Sharp, 09-0207 (La.6/26/09), 16 So.3d 343.

When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt, and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

In Count 1, the ODC introduced evidence establishing that respondent pled guilty to conspiracy to commit bribery in violation of 18 U.S.C. § 871. Although respondent does not dispute he pled guilty to this charge, he argues we should consider in mitigation that there was no allegation he had any “actual knowledge of the bribe.”

110It is well-settled that once an attorney is convicted of a crime, he is only permitted to introduce mitigating circumstances that are not inconsistent with that guilt. In re: Hattier, 04-2604 (La.3/2/05), 894 So.2d 1123; Louisiana State Bar Ass’n v. Loridans, 338 So.2d 1338 (La.1976). Regardless of respondent’s degree of knowledge of the ultimate purpose of the conspiracy, the fact remains that he pled guilty to a violation of 18 U.S.C. § 371, an essential element of which is conspiring to commit “any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.... ” Unquestionably, the elements of this crime establish that respondent committed “a criminal act especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” for purposes of Rule 8.4(b).

In Count 2, the ODC alleges respondent engaged in the unauthorized practice of law by appearing in court on behalf of a limited liability company after he was suspended from the practice of law by this court. In his defense, respondent argues he was not practicing law, but instead was acting in proper person on behalf on the limited liability corporation as permitted by La. R.S. 37:212.

Respondent’s contentions are called into question by the transcript of the July 24, 2008 district court hearing, which was introduced into the record as ODC Exhibit 6. At the commencement of that hearing, the district court directed counsel to make their appearances, at which time respondent indicated he was “appearing for | pthe plaintiffs.” Moreover, respondent introduced no evidence that would indicate he was a “duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative” who was permitted to act on behalf of the limited liability companies pursuant to La. R.S. 37:212(C). Under these circumstances, we find the record supports the hearing committee’s factual finding that respondent engaged in the unauthorized practice of law.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. In re: Coff man, 09-1165 (La.9/25/09), 17 So.3d 934. The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Smith, 09-1141 (La.9/25/09), 17 So.3d 927.

The record establishes that respondent was convicted of a serious crime involving elements of dishonesty. In addition, respondent knowingly engaged in the unauthorized practice of law. The baseline sanction for this misconduct is disbarment. See Standards 5.11 and 7.1 of the ABA’s Standards for Imposing Latuyer Sanctions.

Numerous aggravating factors are present in this case: prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and illegal conduct. The sole mitigating factor supported by the record is the imposition of other penalties. Given the absence of any significant mitigating factors or extenuating circumstances, we see no reason to depart from the baseline sanction of disbarment.

| ^Having found respondent should be disbarred, we now turn to the question of 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 that 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.”

In the instant case, respondent was suspended from the practice of law in In re: Petal, 07-1299 (La.1/25/08), 972 So.2d 1138. Despite this order, respondent held himself out as a lawyer in July 2008. 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.

In addition, respondent’s conviction for conspiracy to commit bribery demonstrates a clear lack of moral fitness. This court has not hesitated to permanently disbar attorneys who have committed serious crimes reflecting on their honesty and integrity. See, e.g., In re: Edwards, 04-0290 (La.7/2/04), 879 So.2d 718; In re: Kirchberg, 03-0957 (La.9/26/03), 856 So.2d 1162.

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

hsDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Malcolm R. Petal, Louisiana Bar Roll number 25822, 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 clays from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . Rule 8.4(a)(b) and (c) provides:
      It is professional misconduct for a lawyer to:
      (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
      (b) Commit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
      (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

      . Rule 1.1 provides, in pertinent part:
      (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

      . Rule 1.16 provides, in pertinent part:
      (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
      (1) the representation will result in violation of the rules of professional conduct or other law.

      . Rule 3.3 provides, in pertinent part:
      (d)In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the lawyer to make an informed decision, whether or not the facts are adverse.

      . Rule 3.4 provides, in pertinent part:
      A lawyer shall not:

      (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.

      . Rule 5.5 provides, in pertinent part:
      (a) A lawyer shall not practice law in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

      . Rule 8.4(a) and (d) provides:
      It is professional misconduct for a lawyer to:
      (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

      (d) Engage in conduct that is prejudicial to the administration of justice;

      .La.Code Civ. P. art. 2752 provides, in pertinent part:
      A. The petition for injunction shall be filed in the court where the executory proceeding is pending, either in the executory proceeding or in a separate suit. The injunction proceeding to arrest a seizure and sale shall be governed by the provisions of Articles 3601 through 3609 and 3612, except as provided in Article 2753. However, a temporary restraining order shall not issue to arrest the seizure and sale of immovable property, but the defendant may apply for a preliminary injunction in accordance with Article 3602. In the event the defendant does apply for a preliminary injunction the hearing for such shall be held before the sale of the property, [emphasis added].

      . 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.

      . Standard 7.1 provides, in pertinent part:
      Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . Respondent denies knowledge of the bribery, despite pleading guilty to conspiracy to commit bribery. Respondent’s position indicates his refusal to grasp the seriousness of his conduct.

      . As a result of his conviction, respondent was sentenced to a prison term of five years.

      . 18 U.S.C. § 371 states, in pertinent part: "[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

      . La. R.S. 37:212, which defines the practice of law, creates the following exception:
      C. Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting any claim, not exceeding five thousand dollars, or defense pertaining to an open account or promissory note, or suit for eviction of tenants on its own behalf in the courts of limited jurisdiction on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.

      .Additionally, we agree with the board's finding that respondent acted improperly in obtaining the TRO in contravention of the established law.


text:
    In re Michael J. MATTHEWS.
    No. 2009-B-2416.
    Supreme Court of Louisiana.
    March 26, 2010.
   I ,ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael J. Matthews, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1975. In June 1988, respondent pleaded guilty to five counts of forgery and five counts of felony theft of client funds. See State v. Matthews, 572 So.2d 250 (La.App. 1st Cir.1990), writ denied, 575 So.2d 387 (La.1991). Following his guilty plea, respondent filed a petition for consent disbarment, which the court granted. Louisiana State Bar Ass’n v. Matthews, 532 So.2d 105 (La.1988). Respondent never sought readmission from his disbarment. Accordingly, he remains disbarred from the practice of law.

| .UNDERLYING FACTS

Count I — The Cave Matter

Following respondent’s disbarment, attorney Donald Cave employed him to work as a paralegal. At Mr. Cave’s direction, respondent attended and participated in the following depositions:

1. Deposition of David Windom on April 20,1999;
2. Deposition of Michael Stein on April 20,1999;
3. Deposition of Dr. Edward Cullom, III on April 21,1999;
4. Deposition of Dr. Amilcar Correa on April 21,1999; and
5. Deposition of Jennifer Altazin on April 23,1999.

Respondent appeared at each deposition as counsel for the plaintiff and misrepresented himself by allowing others to believe he was licensed to practice law. During some of the depositions, respondent asked questions of the witnesses.

Counts II & III — The Cornish Matter

Following respondent’s disbarment, attorney John Cornish employed him to work as a paralegal.

| .The Ihsan Representation

During respondent’s employment, Malik Ihsan hired Mr. Cornish to represent him in a personal injury matter. Mr. Cornish gave respondent permission to negotiate personal injury settlements, including Mr. Ihsan’s, directly with insurance adjusters.

Between June and December 1997, respondent sent four letters to the insurance adjuster handling Mr. Ihsan’s claim. In the letters, respondent failed to designate himself as a paralegal or otherwise indicate that he was not an attorney. Moreover, in his December 4, 1997 letter, respondent offered to settle Mr. Ihsan’s claim for $7,500 plus medical expenses.

Two of the insurance adjuster’s letters to respondent were addressed to “Michael J. Matthews, Attorney at Law.” In an affidavit dated June 12, 2000, the insurance adjuster stated: (1) she dealt exclusively and directly with respondent in attempting to settle the claim, (2) respondent represented to her that he was Mr. Ihsan’s attorney, and (3) respondent never disclosed to her that he did not have a license to practice law.

The White Representation

During respondent’s employment, June White hired Mr. Cornish to handle her deceased husband’s succession. In November 1996, while Mr. Cornish was out of town, respondent traveled to Alexandria to pick up a check for additional legal fees from Ms. White. Because Ms. White was under the impression respondent was an attorney, she made the $8,000 check payable to respondent with “Lawyer Fees” indicated in the check’s memo section. With Mr. Cornish’s permission, respondent deposited the check into his personal account and kept approximately $2,400 to pay |4the leases on two vehicles. Respondent wrote a check to Mr. Cornish for the difference.

In November 1996, again with Mr. Cornish’s permission, respondent signed Mr. Cornish’s name as Notary to notarize the signature of the succession’s administrator on the Oath of Administrator. Furthermore, while acting as Ms. White’s legal representative, respondent dealt exclusively with a Maryland attorney regarding the ownership transfer of her husband’s franchise rights. The Maryland attorney believed respondent was an attorney and was never corrected when he addressed respondent as such. Ms. White was forced to sell the franchise for substantially less than its value partly due to respondent’s failure to respond to the Maryland attorney’s letters.

In July 1997, Ms. White fired Mr. Cornish. Her discharge letter was addressed to both Mr. Cornish and respondent.

DISCIPLINARY PROCEEDINGS:

In July 2008, the ODC filed three counts of formal charges against respondent, alleging his conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5 (engaging in the unauthorized practice of law), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent, through counsel, answered the formal charges and denied any misconduct.

|5Hearing Committee Report

After reviewing the evidence presented at the hearing, the hearing committee found respondent engaged in the practice of law in the following ways: (1) he participated in several depositions on behalf of his employer’s client, (2) he negotiated with an insurance adjuster on behalf of his employer’s client, and (3) he corresponded with another attorney on behalf of his employer’s client. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee further determined that “Respondent (who committed prior disciplinary offenses and exhibited a pattern of misconduct) appears to have acted intentionally and knowingly with dishonest and selfish motives and appears to have violated duties owed to the public, the legal system, and the [legal] profession.”

Considering respondent’s misconduct in light of the above findings and the prior jurisprudence of this court, the committee recommended respondent be permanently disbarred. The committee further recommended that any future disciplinary complaints about respondent representing himself to be a licensed attorney should be forwarded to the appropriate district attorney’s office for investigation.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation. However, in his brief to the disciplinary board, respondent noted the ODC waited a decade to file formal charges against him, causing a significant delay in these disciplinary proceedings. He also stated that his above actions were done at the request and direction of licensed attorneys; thus, he did not intentionally engage in any conduct he felt was the unauthorized practice of law.

| kDisciplinary Board Recommendation

After review, the disciplinary board adopted the factual conclusions drawn by the hearing committee. The board also found the ODC proved, by clear and convincing evidence, that respondent engaged in the unauthorized practiced of law while disbarred, as described in the three counts of formal charges. Based on these facts, the board determined respondent violated Rules 5.5(a), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

The board further determined respondent knowingly and intentionally violated duties owed to his purported clients, the legal system, and the legal profession. The level of his involvement in representing clients was not superficial, and he caused “substantial and serious” harm.

In aggravation, the board found prior disciplinary offenses, a dishonest or selfish motive, and a pattern of misconduct. The board found no mitigating factors present.

Turning to the issue of an appropriate sanction, the board stated, “While the record reflects that licensed attorneys who should have supervised [respondent] have also shared significant blame, the Board finds that Mr. Matthews used his employment as a legal assistant as a platform for seizing opportunities to practice without a license.” After further considering respondent’s misconduct in light of the permanent disbarment guidelines and the pri- or jurisprudence of this court, the board recommended respondent be permanently disbarred. The board further recommended respondent be ordered to make restitution to Ms. White and “make restitution for any other monetary harm suffered by his other purported clients and/or by third parties as the result of his unauthorized practice of law.”

|7Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, respondent engaged in the unauthorized practice of law on numerous occasions following his 1988 disbarment. The record supports a finding that he has violated the Rules of Professional Conduct as charged.

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

|sWe agree with the hearing committee and the disciplinary board that respondent acted knowingly and intentionally. He violated duties owed to his employers’ clients, the public, the legal system, and the legal profession. His misconduct caused actual harm and potentially serious harm.

The record supports the following aggravating factors: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and refusal to acknowledge the wrongful nature of the conduct. The sole mitigating factor present is the delay in the disciplinary proceedings.

Turning to the issue of an appropriate sanction, we find respondent’s conduct falls squarely within Guidelines 8 and 9 of the permanent disbarment guidelines. These guidelines provide as follows:

GUIDELINE 8. Following notice, engaging 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 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

The record reveals respondent acted as an attorney on numerous occasions while disbarred, thereby implicating Guideline 8. Likewise, Guideline 9 is applicable, as the instant misconduct, which is unquestionably serious attorney misconduct, was preceded by respondent’s disbarment for prior instances of serious attorney misconduct. Respondent’s argument that he was acting at the request and direction of licensed attorneys only serves to exacerbate his misconduct, as the two attorneys who facilitated his unauthorized practice of law were subsequently disciplined for them role in his misconduct.

[¡¡This matter is quite similar to In re: Jackson, 08-2424 (La.2/13/09), 1 So.3d 454. In Jackson, a suspended attorney engaged in the unauthorized practice of law by providing legal advice to clients and by negotiating settlements with insurance adjusters. The suspended attorney also shared legal fees with a licensed attorney who assigned files to the suspended attorney, allowing him to engage in the unauthorized practice of law. We permanently disbarred the suspended attorney based on Guidelines 8 and 9.

In In re: Jefferson, 04-0239 (La.6/18/04), 878 So.2d 503, we addressed another case in which a disbarred attorney engaged in the unauthorized practice of law. In concluding the attorney must be permanently disbarred, we stated:

Respondent has flouted the authority of this court by practicing law after being prohibited from doing so. In the face of this indisputable evidence of a fundamental lack of moral character and fitness, we can conceive of no circumstance under which we would ever grant readmission to respondent. Accordingly, he must be permanently disbarred.

Similarly, in the instant case, respondent’s failure to respect the authority of this court clearly demonstrates he lacks the fitness to engage in the practice of law in this State. Accordingly, he must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Michael J. Matthews, Louisiana Bar Roll number 7529, 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. It is further ordered that respondent make restitution to his victims. 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.

       Chief Justice Kimball not participating in the opinion.

      . In January 2003, the disciplinary board publicly reprimanded Mr. Cave for failing to properly supervise respondent and facilitating his unauthorized practice of law. In re: Cave, 02-DB-020 (1/21/03).

      . In December 2004, this court suspended Mr. Cornish for three years, but deferred all but one year and one day of the suspension, for, among other things, failing to properly supervise respondent and facilitating his unauthorized practice of law. In re: Comish, 04-1453 (La.12/13/04), 889 So.2d 236.

      . The licensed attorney consented to being permanently disbarred for, among other things, improperly sharing attorney’s fees with the suspended attorney in Jackson and facilitating the suspended attorney's unauthorized practice of law. In re: Wilson, 04-1734 (La.9/24/04), 882 So.2d 547.