The Florida Bar v. Patricia Del Pino

SC05-734

THE SEX BATTERY WITHOUT
VIOLENCE STOOD IN BETWEEN
LEWD AND LASCIVIOUS AND
SIMPLE BATTERY AND
UNDERSTAND THE RULES SIMPLE
BATTERY WOULD HAVE BEEN A
NECESSARY LESSER FOR LEWD
AND LASCIVIOUS CONDUCT.
IT WOULD NOT HAVE HAD
ANYTHING IN BETWEEN IT.
THEY SHOULD NOT HAVE BEEN
TOLD THAT THERE WAS -- THAT
THESE WERE LESSERS WHEN THEY
WERE NOT.
AND THAT'S -- AND THAT'S
WHERE I'M COMING WITH MY PER
SE EVIDENCE.
>> THEY WERE LESSER TO THE
MAIN OFFENSE.
>> YEAH.
>> BUT MAYBE NOT LESSERS TO
EACH OTHER.
>> RIGHT.
>> THANK YOU VERY MUCH.
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THANK YOU VERY MUCH.
>> THE SUPREME COURT OF
FLORIDA.
PLEASE BE SEATED.
THE NEXT CASE ON OUR
CALENDAR THIS MORNING IS THE
FLORIDA BAR/dEL PINO.
GOOD MORNING.
MAY IT PLEASE THE COURT MY
NAME IS JACK WEISS. I
REPRESENTATIVE THE
RESPONDENT IN THIS CASE.
MY CLIENT IS SITTING TO MY
LEFT.
WE HAVE ASKED THIS COURT TO
REVIEW THE REFEREE'S REPORT
IN THIS MATTER IN WHICH THE
REFEREE RECOMMENDED
DISBARMENT.
WE SUBMIT THERE ARE TWO
ERRORS IN THAT REPORT THAT
WANT THIS COURT'S
CONSIDERATION. IN REVIEW IN
THE FIRST IS THE REFEREE'S
FINDING THAT MY
CLIENT PARTICIPATED IN THE
AVENTURRA CONDO CLOSING ON
OCTOBER THE 4th,2001 WITH THE
INTENT TO BENEFIT FROM THE
CLOSING, THAT SHE AND HER
ESTRANGED HUSBAND WERE GOING
TO LIVE IN THE CONDOMINIUM,
THAT IS CONTRARY TO THE
EVIDENCE, AND THAT IS AN
EGREGIOUS AND MATERIALLY
ERRONEOUS FACTUAL FINDING.
THE SECOND IS THAT WE SUBMIT
THE REFEREE GAVE UNDUE
WEIGHT TO THAT FACTORING IN
AGGRAVATION, GAVE NO
WEIGHT IN MITIGATION TO THE
FACT THAT MY CLIENT'S
OFFENSES OCCURRED
OUTSIDE THE PRACTICE OF LAW
WHICH MATERIALLY MITIGATING
FACTOR.
>> COULD YOU EXPLAIN THE
AVENTURRA CIRCUMSTANCE AS IT
WAS PRESENTED TO THE
REFEREE.
>> I WILL DO MY BEST, JUSTICE
PARIENTE.
>> I AM REALLY TRYING TO
UNDERSTAND IT.
IT CLEARLY WAS APPARENTLY
THE HUSBAND -- HUSBAND
COULDN'T GET FINANCING
BECAUSE HE WAS --
>> YES, MA'AM.
THE HUSBAND AND MY CLIENT
WERE ESTRANGED.
THEY HAD BEEN SEPARATED.
AFTER THEY SEPARATED HE PUT
DOWN AN OPTION TO WHY THE
AVENTURRA CONDO FOR, I
BELIEVE, IT WAS $600,000.
BY THE TIME OF THE
TRANSACTION IT APPRECIATED
TO 1.2 MILLION.
MR. ARIAS HAD BEEN INDICTED
IN PENNSYLVANIA FOR MEDICAID
FRAUD.
HE HAD AN $800,000
RESTITUTION FIGURE THAT HE
HAD TO COME UP WITH.
RATHER THAN LOSING THE
BENEFIT OF HIS OPTION
BECAUSE HE COULD NOT GET
FINANCING --HE'S NOW BEEN INDICTED AND
FINANCING WAS NOT AVAILABLE
TO HIM.
HE ENTERED INTO THIS RUESE
AT THE HEALTH CLINIC AND SHE
QUALIFIED FOR THE FINANCING.
SHE WAS GOING TO BE THE
PURCHASER BUT IN REALITY HE
WAS GOING TO BE THE OWNER
AND HE WAS GOING TO LIVE
THERE WITH HIS GIRLFRIEND.
>> WELL, WHAT WAS THE
DOCUMENT THAT YOUR CLIENT
HAD TO SIGN A WAIVER OF
HOMESTEAD?
WHY DOES THAT HAVE TO
BE --
>> THAT'S OUR EXHIBIT 1.
IT'S THE WARRANTY DEED IN
RETROSPECT IT APPEARS THAT
IT DIDN'T HAVE TO BE SIGNED.
THAT WASN'T IN THE RECORD,
THOUGH, AND I'M NOT -- FRANKLY
I'M NOT A REAL ESTATE
LAWYER.
I'M NOT SURE IF THAT'S
ACCURATE OR NOT.
BUT SHE INSISTED ON
THAT WARRANTY DEED THAT,
THAT SHE NOTED THAT SHE IS
SIGNING THIS SOLEY FOR THE
PURPOSE OF WAIVING HOMESTEAD
AND SHE IS NOT THE GRANTOR.
>> BUT SHE KNEW THAT THIS
WAS A FRAUDULENT
TRANSACTION?
>> YES, MA'AM.
AND FOR THAT SHE PLED GUILTY.
>> SO THE ISSUE IS WHETHER
SHE WAS -- WHAT YOU ARE
SAYING THIS DOESN'T -- THAT
THE EVIDENCE DOESN'T SUPPORT
THAT SHE WOULD BENEFIT
BECAUSE SHE AT THAT POINT
WAS NOT LIVING WITH HIM AND
HE WAS LIVING WITH SOMEONE
ELSE. IS THAT THE EVIDENCE?
>> EXACTLY.
EXACTLY.
WE DID NOT GO BEFORE THE
REFEREE SAYING MY CLIENT WAS
NOT GUILTY OF THE TWO CRIMES
THAT SHE PLED TO.
THE MAIL FRAUD COUNT THAT
SHE PLED TO WAS -- IT'S OUR
POSITION THAT IT WAS FAILING
TO STOP THE FRAUDULENT
TRANSACTION.
THE REFEREE MATERIALLY
CONSIDERED THIS FACTOR, HIS
ERRONEOUS IMPRESSION SHE
WOULD LIVE THERE.
HE STATED TWICE ON PAGE 4
AND THEN PAGE 7 HE
CONSIDERED THIS AN
AGGRAVATING FACTOR.
THE BASIS FOR JUDGE TRAY
COMING TO THE CONCLUSION --
>> YOU WOULD AGREE IF SHE
WERE GOING TO LIVE THERE AND
PARTICIPATE IN THAT WAY,
THAT, THAT WOULD BE
A -- CONSTITUTE A SELFISH
MOTIVE.
>> YES, MA'AM.
>> OKAY.
>> YES, MA'AM.
I WOULD.
IF SHE DID WITH THIS INTENT
OF HAVING A HOME FOR HER AND
HER ESTRANGED HUSBAND I
SUBMIT IT WOULD BE
AN AGGRAVATING FACTOR BUT SUCH
WAS NOT THE CASE.
>> WHAT IF THE PROCEEDS WERE
USED TO PAY FOR THE
RESTITUTION, THAT WOULD
ALLEVIATE THE NEED TO USE
OTHER MARITAL ASSETS TO
ACCOMPLISH THE SAME GOAL;
CORRECT?
>> THERE'S NOTHING IN THE
RECORD TO INDICATE JOINT
MARITAL ASSETS.
SHE HAD NO INTEREST IN THIS
CONDOMINIUM WHATSOEVER.
THERE'S NOTHING IN THE
RECORD TO INDICATE THAT
ANYTHING THAT SHE OWNED OR
SHE HAD WOULD HAVE BEEN USED
TO PAY MR. ARIAS'
RESTITUTION.
>> WHOSE BURDEN IS THAT TO
PUT THAT IN THE RECORD, THE
BARS OR YOURS?
>> THE BAR, YOUR HONOR.
>> EVEN THOUGH SHE PLED TO
THE FELONY.
EVEN THOUGH SHE'S PLED TO
THE FELONY, THAT'S CORRECT,
YOUR HONOR.
>> IT'S YOUR POSITION IT
WOULD BE THE BAR'S POSITION
TO GET INTO HER FINANCES AND
WHETHER SHE WAS RECEIVING
ANY MONEY FROM --
>> SHE TESTIFIED.
SHE TESTIFIED SHE HAD ABOUT
$250,000 IN ASSETS AND
THERE'S NOTHING IN THERE IN
THE RECORD WHATSOEVER WHEN
SHE TESTIFIED ABOUT ASSETS
IN -- INDICATING THEY WERE
JOINT ASSETS.
>> AND THEN SHE TESTIFIED SHE
WAS SOLELY INDEPENDENT AS
FAR AS HER INCOME WAS NOT
RELYING UPON HIM FOR ANY
BENEFIT?
>> I THIS THE REPORT IS
SILENT IN THAT REGARD.
I'M CONCERNED.
IF THIS -- THESE PROCEEDING
WOULD BE USED TO PAY THIS
RESTITUTION, I WOULD
FREE UP -- IF SHE WAS
DEPENDENT UPON HIM OR
PARTIALLY DEPENDENT OR
CODEPENDENT OR WHATEVER
USING HIS INCOME AND NOT
INDEPENDENT OF THEM THERE
WOULD BE SOME BENEFIT OF HER
PARTICIPATING IN THIS.
BUT THEY ARE NOT?
>> IF THE RECORD SHOWS THERE
WERE JOINT ASSETS AND THAT THEY WERE
GOING TO BE -- USE THE RECORDS
SHOWS NOTHING.
SHE WAS LIVING ENTIRELY
INDEPENDENT OF HIM.
>> THAT'S MY QUESTION.
AND SO I THINK THAT'S IN THE
RECORD.
>> GIVE US A LITTLE
FUNDAMENTAL SKETCH OF THAT.
BECAUSE THE RECORD
DEMONSTRATES THAT BACK AND
FORTH RELATIONSHIP BETWEEN
THE TWO OF THEM -- WHEN DID
THIS TRANSACTION TAKE PLACE?
>> IT TOOK PLACE ON OCTOBER
THE 1st, 2004.
THEY HAD BEEN SEPARATED
AND -- I'M SORRY.
2001.
I APOLOGIZE JUSTICE ANSTEAD.
THEY HAD BEEN SEPARATED AT
LEAST SIX TIMES DURING THAT
TIME FRAME AT THE POINT OF
THE TRANSACTION THEY WERE
SEPARATED. HE WAS LIVING
WITH HER GIRLFRIEND.
>> NOW, DID THEY GET BACK
TOGETHER AFTER THIS
TRANSACTION?
>> THERE WAS AT LEAST A
TWO-MONTH PERIOD IN 2004
AFTER HE GOT OUT OF JAIL
THAT THEY MOVED -- HE MOVED
BACK IN WITH HER.
THAT'S THREE YEARS LATER.
>> BUT, WELL, WHAT DOES THE
INTERVAL SHOW?
>> IN OTHER WORDS --
>> JUSTICE ANSTEAD, I'M AS
CONFUSED AS YOU ARE.
THAT'S PART OF THE
DIFFICULTY I'M HAVING AND
YOU ARE SAYING THEY ARE
ESTRANGED AND SEPARATED,
OKAY.
ON THIS RECORD IT APPEARS
THAT THIS WAS CONSTANT.
THAT IT IS THAT THEY WERE
TOGETHER, AND THEN THEY WERE
SEPARATED.
>> I DON'T THINK THERE'S
ANYTHING IN THE
PATTERN -- THE PATTERN
CONTINUED AFTER THIS
TRANSACTION; DID IT NOT?
>> I DON'T THINK THERE'S
ANYTHING INDICATING THEY
LIVED TOGETHER AFTER 2001
UNTIL 2004.
BUT I'M NOT SURE OF THAT
JUSTICE ANSTEAD.
I WANTED TO CLARIFY
SOMETHING AS FAR AS WHO HAS
THE BURDEN OF PROOF ON THIS
ISSUE.
THIS ISSUE IS SOMETHING THAT
YOU CLAIM THE TRIAL -- THE
REFEREE ERRED IN FINDING IN
AGGRAVATION NOT IN DECLINING
TO FIND MITIGATION.
>> CORRECT.
CORRECT.
WE'RE NOT -- WE'RE NOT
FLUSHING OVER WHOSE FAILURE
TO LIST AS A MITIGATING
FACTOR NO DISHONEST MOTIVE.
WE SUBMIT WE HAVE SUFFICIENT
MITIGATION EXCLUSIVE OF THAT
TO SHOW THAT THIS MATTER
SHOULD BE REDUCED DOWN FROM
DISBARMENT THE ULTIMATE
DISCIPLINE, THE DEATH
PENALTY IF YOU WILL OF A
DISCIPLINARY PROCEEDINGS.
WHAT WE ARE SAYING IS THAT
HIS USING THIS MOTIVE OF
LIVING IN THE CONDITION
MINIMUM AS A SUBSTANTIALLY
AGGRAVATING FACTOR IS
COMPLETELY INAPPROPRIATE.
>> AND AS TO THAT YOUR
POSITION IS THAT THE BAR HAS
THE BURDEN OF PROOF AS TO
AGGRAVATION.
>> THE BAR HAS THE BURDEN OF
PROOF AS TO AGGRAVATION.
WE HAVE THE BURDEN OF PROOF
AS TO MITIGATION.
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
>> WHICH I THINK IS A VERY
GOOD CASE YOUR HONOR.
I DON'T THINK THERE'S ANY
DOUBT THAT HAD THIS BEEN A
CASE INVOLVING ALCOHOL ABUSE
OR COCAINE ABUSE THAT THERE
WOULD BE A REDUCTION FROM
DISBARMENT THE ULTIMATE
SENTENCE DOWN.
[AUDIO DIFFICULTIES]
>> I CERTAINLY AGREE WITH
THAT, YES, MA'AM.
[AUDIO DIFFICULTIES]
>> I THINK I CITED SEVERAL.
SOMBERS IS ONE OF THEM I
BELIEVE.
WELLS, SUMBERS- YES,
MA'AM.
[AUDIO DIFFICULTIES]
YES, MA'AM.
[AUDIO DIFFICULTIES]
>> I THINK PART WAS STEALING
FROM THE TRUST ACCOUNT.
YES, MA'AM, ABSOLUTELY.
WE'RE LUMPING MY CLIENT IN
WITH THOSE LAWYERS WHO
STEAL FROM TRUST ACCOUNTS,
WHO RUN DRUGS, GET CONVICTED
FOR DRUG RUNNING AND I ASK
THE COURT TO VIEW THESE
CASES AND I GUESS A
HIERARCHY AND WHY SHOULD
CONGRESSMAN SMITH GET OFF
WITH A THREE-YEAR SUSPENSION
FOR CONDUCT THAT I SUBMIT TO
THE COURT IS WORSE AND MY
CLIENT GET DISBARRED FOR
VIRTUALLY -- I MEAN FOR LESS
SERIOUS CONDUCT.
THERE'S TWO THINGS THAT I
THINK JUDGE TRAY --
[AUDIO DIFFICULTIES]
>> I THINK THE JUDGE HAD NO
REASONABLE BASIS FOR THIS
RECOMMENDATION, MA'AM.
AND --
>> YOU ARE WELL INTO YOUR
REBUTTAL.
YES, SIR.
I UNDERSTAND.
AND THE TWO FACTORS MATERIAL
FACTOR AND THE IMPROPER
AGGRAVATION ON THE OWNERSHIP
OF THE CONDOMINIUM AND NO
CREDIT FOR THE FACT THAT
THIS MISCONDUCT TOOK PLACE
OUTSIDE THE PRACTICE OF LAW.
NO CLIENT WAS HARMED AND I
POINT TO -- HELLINGER
CASE FOR THAT PROPOSITION
WHERE MR. HELLINGER GOT TWO
YEARS.
THANK YOU.
I WILL SAVE MY REMAINING
TIME FOR REBUTTAL.
MAY IT PLEASE THE COURT I'M
RANDY LAZARUS ON BEHALF OF THE
BAR.
LET'S FIRST ADDRESS
MR. WEISS'S FIRST POINT WITH
REGARD TO THE OWNERSHIP OF
THE CONDOMINIMUM, WHO
WAS SUPPOSED TO HAVE CONTROL
OF THE CONDOMINIUM WHETHER
IT BE MISS dEL PINO AND HER
HUSBAND OR HER CURRENT
HUSBAND.
THE REFEREE SPECIFICALLY
FOUND HER AS AN AGGRAVATOR
THAT THE PROCEEDS FROM THE
AVENTURRA CLOSING WOULD BE
USED TO ASSIST MR. ALIAS TO
PAY THE RESTITUTION IN HIS
CRIMINAL CASE.
THE ISSUE OF WHO WAS TO HAVE
CONTROL OF THIS CONDOMINIUM
HAD ABSOLUTELY NOTHING TO DO
WITH THE AGGRAVATING CIRCUMSTANCE
THAT THE REFEREE FOUND IN
THIS STATE.
IT IS ITS RESPONSE TO
OVERCOME DISBARMENT.
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
>> WELL, FIRST OF ALL IT
DOESN'T HELP HER.
SHE PARTICIPATED IN A FRAUD.
>> AND THEY ADMIT THAT.
>> THEY ADMIT THAT.
SHE PARTICIPATED IN A
FRAUD. THIS DOCUMENT SIGNED
ON OCTOBER 4th, 2001.
SHE HAD NOT BEEN LIVING WITH
HER HUSBAND FOR QUITE SOME
TIME.
AND I WANT TO BRING
SOMETHING ELSE TO YOUR
ATTENTION.
THERE IS SEMI -- TESTIMONY
THAT IN SEPTEMBER OF 2001
THE IRS KNOCKS ON MISS dEL
PINO'S DOOR AND MADE HER
AWARE SHE WAS UNDER
INVESTIGATION FOR THE
OFFENSE COMMITTED ON APRIL
19th, 1999.
IN OCTOBER THE TESTIMONY
WILL SHOW THAT THEY RECEIVED
THE SUBPOENA FOR THE PAYROLL
RECORDS.
SHE WAS AWARE SHE WAS UNDER
INVESTIGATION AT THAT TIME.
[AUDIO DIFFICULTIES]
>> THAT'S CORRECT.
>> HOW DOES THAT BENEFIT HER?
IT BENEFITS -- WELL, IT
DOESN'T BENEFIT HER.
IT DOES NOT -- IT DIDN'T
PERSONALLY BENEFIT HER.
IT WAS NOT HER RESTITUTION.
HOW DOES SHE HAVE SELFISH
MOTIVE.
SHE WAS ASSISTING HER
HUSBAND.
SHE WAS MARRIED TO THE MAN.
SHE WASN'T DOING -- SHE WAS
DOING FOR HER HUSBAND.
>> YES, YOUR HONOR.
I SUBMIT THAT'S THE
SUFFICIENT MOTIVE FOR
SOMEBODY TO ASSIST A FAMILY
MEMBER.
IS THERE ANY EVIDENCE WITH
REGARD TO OWNERSHIP ON
MARITAL PROPERTY IF THEY ARE
STILL MARRIED.
ANY EVIDENCE OR ISSUES WITH
REGARD TO THAT?
>> WITH THE REGARD TO
AVENTURRA PROPERTY.
>> SHE DIDN'T OWN THAT
PROPERTY.
THAT'S WHY THE WARRANTY DEED
SAID SHE WAS SIGNING FOR THE
BEHAVIOR OF HOMESTEAD
PURPOSES NOT AS A GRANTOR.
SO IS THE BAR CLAIMING THE
ONLY ASPECT OF THE SELFISH
MOTIVE AGGRAVATOR IS THAT
SHE WAS DOING THAT FOR A
FAMILY MEMBER.
>> YES, YOUR HONOR.
>> BUT NOT RECEIVING ANY
FINANCIAL BENEFIT.
>> THERE'S NO EVIDENCE THAT
SHE RECEIVED ANY FINANCIAL
BENEFIT.
AND LET'S NOT FORGET THAT
NOT ONLY DO WE HAVE THE
AVENTURRA CLOSING.
WE HAVE A TAX EVASION CHARGE
AND THE REFEREE FOUND THERE
WAS A SELFISH MOTIVE FOR HER
TO COMMIT THE TAX EVASION
CHARGE.
[AUDIO DIFFICULTIES]
>> ONE THING ,YOUR HONOR, I
BELIEVE YOU POINTED OUT --
>> THE REEFREE AND SMITH DID
NOT RECOMMEND.
THAT'S ONE FACT THAT YOU
HAVE TO CONSIDER AND WHETHER
OR NOT IN THIS CASE OUR
REEFREE HAD A REASONABLE
BASIS IN EXISTING CASE
LAW --
[AUDIO DIFFICULTIES]
>> LET ME TELL YOU WHAT I
SEE -- ARE YOU SAYING
THAT --
[AUDIO DIFFICULTIES]
PARTICULARLY AS TO FEDERAL
ELECTION OFFENSE IT WAS
STATED IN THIS OPINION THAT,
THAT WAS AN -- THAT
PROCEEDING OR INFRACTION IS
NORMALLY AN ADMINISTRATIVE-TYPE
MATTER.
SOMETHING THAT PERHAPS HAD
HE NOD -- NOT HAD THE TAX
EVASION CHARGE IT
WOULDN'T HAVE BEEN ADDRESSED
THIS HARSHLY HERE.
[AUDIO DIFFICULTIES]
I AM NOT MINIMIZING IT.
BUT WITHIN THE SAME OPINION
THERE'S ALSO A REFERENCE TO
THAT HAVING NORMALLY BEEN
HANDLED IN AN ADMINISTRATIVE
MANNER.
ALSO, IN THIS -- IN THE
SMITH CASE THE COURT -- THE
REFEREE FOUND THAT MR. SMITH
WAS HAVING FINANCIAL
DIFFICULTY.
NOT THAT WAS AN EXCUSE FOR
WHY HE COMMITTED THE OFFENSE
HE DID BUT THAT WAS A REASON
FOR HIM TO UNDERSTAND WHAT
HAPPENED THERE.
AND THAT THERE WAS NOT A
FINDING OF A SELFISH MOTIVE
BY MR. SMITH AS OPPOSED TO
THIS REEFREE --
[INAUDIBLE]
>> YOUR HONOR THAT WAS THE
FINDING OF THE REFERENDUM
AND THIS COURT UPHELD IT.
>> AS A BAR COUNSEL AND
OFFICER OF THIS COURT HOW
THAT COULD NOT BE A SELFISH
MOTIVE AND WE ARE ASKING FOR
AN EXTENSION OF TIME TO FILE
THE TAX RETURN.
[INAUDIBLE]
I COULD SEE IT BEING VIEWED
BOTH AS A SELFISH MOTIVE.
BUT I ALSO HAVE TO LOOK AT
THE OPINION AND THE FINDING
OF THE REFEREE AND WHETHER OR
NOT THEY WERE UPHELD.
AND IN THIS CASE THERE WAS
ADDITIONALLY EVIDENCE FROM
MISS dEL PINO THAT AT THE
TIME THAT SHE WROTE ZERO ON
THE -- I THINK IT'S A 4868
FORM SHE HAD NET WORTH OF
ALMOST $250,000.
THAT WAS ANOTHER FACTOR TO
CONSIDER.
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
>> RIGHT.
[AUDIO DIFFICULTIES]
>> I AGREE WITH YOU 100%
THAT THIS IS A -- WAS A VERY
SAD SET OF CIRCUMSTANCES.
IT WAS SAD LISTENING TO IT.
IT'S SAD BEING HERE.
BUT THE REFEREE DID NOT
MINIMIZE THE MITIGATION THAT
WAS PRESENTED AND WHAT HE
DID IN THE FACE OF THESE TWO
SERIOUS FELONY CONVICTION HE
ALLOWED THERE TO BE A NUNC
PRO TUNC OF THE DISBARMENT
AND HE IS GIVING THIS
RESPONDENT AN OPPORTUNITY TO
SUBMIT FOR READMISSION TO
THE FLORIDA BAR EXAMINERS AT
LEAST TWO YEARS AHEAD OF THE
TIME THAT SHE WOULD
OTHERWISE HAVE HAD TO MAKE
THIS COURT RULE.
HE DID CONSIDER THE
MITIGATION.
AND SMITH IS NOT THE ONLY
CASE OUT THERE.
YOU HAVE THE CASE OF HOSNER
WHICH INVOLVE MAIL FRAUD AND
FILING TAX RETURNS.
YOU HAVE CASES IN WHICH
THERE WERE VERY SERIOUS
CRIMINAL CONVICTION BUT THE
OTHER WAS MITIGATING
CIRCUMSTANCE AND THE COURT
DID FIND DISBARMENT.
YOU ALSO HAVE TO KEEP IN
MIND HERE THAT -- THERE IS
THE TESTIMONY THAT MISS dEL
PINO WAS PERFORMING QUITE
WELL DURING THE PERIOD THAT
ALL OF THESE THINGS WERE
GOING ON.
AND I ASK YOU TO LOOK TO THE
CASES WHICH TALK ABOUT THE
FACT THAT CLIENTS ARE NOT
EFFECTED AND WHETHER THE
LEVEL OF THE ADDICTION ROSE
TO A -- WHETHER THE
ADDICTION OR WHATEVER THE
PROBLEM WAS DID NOT RISE TO
A SUFFICIENT LEVEL OF
IMPAIRMENT TO OUTWEIGH THE
SERIOUSNESS OF THE OFFENSES.
THE OFFENSES ARE QUITE
SERIOUS HERE.
YOU HAVE MISS dEL PINO AS I
STATED EARLIER IN APRIL 15th
OF 1999 WHEN SHE IS A
PARTNER IN A MAJOR LAW FIRM
SITTING IN HER OFFICE, HER
HUSBAND -- AND I DON'T
MINIMIZE THE ABUSE -- BUT
SHE WAS SITTING IN HER
OFFICE BY HERSELF.
THAT'S WHAT SHE TESTIFIED
ON APRIL 15th, 1999.
AND WHEN THE REST OF US ARE
ASKING FOR EXTENSION OR
SENDING IN MONEY OR WHATEVER
WE ALL DO LEGALLY SHE WAS
WRITING ZERO WHEN EARNING
$122,000 A YEAR.
[AUDIO DIFFICULTIES]
MY QUESTION IS WITHOUT THERE
BEING HARM IN ADDITION TO
THE CRIME --
[INAUDIBLE]
>> IT SHOULD BE A DISBARMENT
BECAUSE THERE'S A
PRESUMPTION OF DISBARMENT
FOR ONE FELONY.
THAT'S WHAT THIS COURT
UPHELD.
THAT'S WHAT THE FLORIDA
STANDARDS FOR LAWYER
SANCTIONS SAY.
THIS COURT HAS SAID THAT IT
IS FOR THE RESPODANT TO
OVERCOME THE PRESUMPTION OF
DISBARMENT.
THE REFEREE HEARD THE
TESTIMONY, THIS COURT SHOULD
DEFER TO THE REFEREE.
WHO AS AN ACT OF
UNDERSTANDING THIS QUITE
EXTENSE TENSESIVE MITIGATION
DID FIND THAT --
>> LET ME SEE IF I
UNDERSTAND THE FELONY IN
RESPECT TO THE TAX FILING.
SHE WAS PAID $122,000 BY THE
AKERMAN FIRM.
DUD THE RECORD REFLECT, DID
THEY PAY
BIRTH -- WITHHOLDING.
>> THERE WAS NO WITHHOLDING
SHE WAS A PARTNER YOUR
HONOR.
SHE BECOME A PARTNER IN
1995.
AND I BRING TO YOUR
ATTENTION THAT AS ANOTHER
AGGRAVATING FACTOR THIS
REFEREE FOUND THAT
ANOTHER --
>> SO IN THE THREE YEARS
THAT SHE DIDN'T FILE A
RETURN THE AKERMAN DIDN'T
CHARGE WITHHOLDING.
>> THERE WAS NO WITHHELDING.
SHE ALSO DIDN'T FILE TAX
RETURNS FOR '96, '97, '98
AND '99.
THAT WAS THE ENTIRE TIME SHE
WAS A PARTNER.
IT'S THE BAR'S POSITION,
YOUR HONOR, THAT THE REFEREE SAT
THERE AND LISTENED TO
EVERYTHING.
HE PREPARED A 17-PAGE
REPORT.
HE GAVE DEFERENCE TO THE
MITIGATING CIRCUMSTANCES
THAT OCCURRED AND THERE'S NO
REASON TO SET ASIDE THIS
REFEREE'S REPORT BECAUSE IT
HAS -- THE DISCIPLINE HAS
BEEN A BASIS IN THE EXISTING
CASE LAW.
THANK YOU VERY MUCH.
>> REBUTTAL.
>> THANK YOU.
>> CAN I ASK YOU ASSUMING WE
AGREE WITH YOU ON THE ISSUE
OF THE AGGRAVATION AND
NEVERTHELESS THE PRESUMPTIVE
DISCIPLINE IN THIS CASE IS
DISBARMENT.
>> THAT'S CORRECT, YOUR
HONOR.
>> HOW HAVE YOU OVERCOME
THAT PRESUMPTION AND CAN
YOU DISTINGUISH OUR CASES IN
McCEEVER AND FORBES WHICH
SEEM ANALOGUOUS TO THIS CASE.
>> FORBES HAD A DEVELOP DEAL
THAT WAS FALLING TO PIECES.
IT WAS GO TO HELL IN A HAND
CART.
HE DUMMIED UP CONTRACTS.
HE DUMMIED UP SPECKS.
HE SUBMITTED A KNOWING FALSE
CONTRACT WITH THE BANK IN AN
ATTEMPT TO GET FUNDING.
THAT'S A FAR CRY FROM
PUTTING DOWN ZERO ON YOUR
TAX RETURN FOR AN
ESTIMATION.
REMEMBER WE DIDN'T -- WE
DIDN'T FILE FRAUDULENT TAX
RETURNS HERE LIKE LARRY
SMITH DID.
HE LIED TO THE GOVERNMENT
ON THREE OCCASIONS ABOUT HOW
MUCH INCOME HE EARNED.
HERE MY CLIENT PUT
DOWN -- DOWN ZERO.
WAIT A MINUTE.
JUSTICE WELLS, THAT'S A
QUESTION.
>> OKAY.
YOU ARE NOT CONTENDING THAT
IT'S WORSE TO FILE A NO
RETURN.
I MEAN IT'S NOT -- NOTHING
WRONG WITH FILING NO RETURN.
THE ONLY THING THAT BAD IS
FILING FRAUDULENT RETURN.
>> THERE'S A HIERARCHY,
JUSTICE WELLS.
I SUBMIT THE BOTTOM OF THE
HIERARCHY IS FAILURE TO
FILE.
THAT'S A MISDEMEANOR.
>> DO YOU AGREE WITH THE BAR
THAT THERE WAS NO
WITHHOLDING PAY.
>> FAILURE TO FILE IS A
MISDEMEANOR.
FILING A 4868 WITH A ZERO IS
A FELONY AND IT'S A CRIME.
I SUBMIT, THOUGH, IT'S NOT AS
BAD AS --
>> THIS LAWYER FILED A
REQUEST IN WHICH SHE SAID NO
TAX WAS OWED.
CORRECT.
>> AND HAVING NOT FILE
A TAX RETURN FOR THREE
YEARS AND IN WHICH SHE KNEW
THAT THERE WAS NO
WITHHOLDING TIME.
>> FOR THAT SHE PLED YOUR
HONOR.
THAT'S TAX EVASION.
BUT, YOUR HONOR, WHAT I'M
SAYING IS THERE'S TAX EVASION,
FILING FALSE AND FRAUDULENT RETURNS IN
WHICH YOU TRY TO TELL THE
GOVERNMENT I EARNED THIS
MUCH WHEN IN ACTUALITY YOU
EARNED MORE, WHICH LARRY
SMITH DID FOR THREE YEARS
FOR TOTAL OF $10 -- 110,000
WORSE THAN SOMEONE
IN MIDST OF DEPRESSION
PUTTING DOWN -- DOWN ZERO.
>> THERE'S STILL THE
PRESUMPTION OF DISBARMENT.
IS THERE NOT?
BECAUSE THERE'S A FELONY
CONVICTION.
HOW DO YOU OVERCOME THE
PRESUMPTION BY SAYING THAT
THIS IS A TINY FELONY OR BY
SAYING DESPITE THE FELONY WE
HAVE SUBSTANTIAL MITIGATION,
WHICH IS IT?
>> WE HAVE SUBSTANTIAL
MITIGATION.
7 ELEMENTS OF SUBSTANTIAL
MITIGATION.
>> IS THAT WHAT YOU HAVE TO
DO.
>> YES, SIR.
>> TO OVERCOME THE
PRESUMPTION.
NOT THE FACT THAT THIS
FELONY IS NOT AS BAD AS
FRAUDULENT TAX
RETURN.
>> ABSOLUTELY JUSTICE
CANTERO.
I SUBMIT WE MADE THAT
SHOWING OF MITIGATION THE
MOST SERIOUS OF WHICH WAS
HER OFFENSES WERE DURING A
TIME OF DEPRESSION AND
DEPENDENT PERSONALITY
DISORDER WHICH IS COMMON ON
AN ABUSED SPOUSE.
THERE'S ONE POINT.
>> WITH OUR ASSISTANCE YOU
HAVE EXHAUSTED --YOU HAVE EXHAUSTED
ALL OF YOUR TIME.
>> ALL RIGHT.
>> THANK YOU VERY MUCH.
WE THANK YOU FOR THE
PRESENTATION.
AND WE'LL TAKE THE CASE
UNDER ADVISEMENT.
THANK YOU.