NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL ODHIAMBO, )
)
Appellant, )
)
v. ) Case No. 2D15-3506
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 16, 2017.
Appeal from the Circuit Court for Pinellas
County; Nancy Moate Ley, Judge.
Mark Ciaravella, Tampa,
for Appellant.
Pamela Jo Bondi, Attorney General, and
John Klawikofsky, Assistant Attorney
General, Tampa, for Appellee.
ORDER FOLLOWING SHOW-CAUSE PROCEEDING
PER CURIAM.
Attorney Mark Ciaravella, Florida Bar Number 46108, appeared before
this court on Tuesday, May 23, 2017, to show cause why sanctions should not be
imposed for his failure to comply with this court's orders. This was the second time this
court issued an order to show cause directed to Attorney Ciaravella concerning the filing
fee for this appeal.
Attorney Ciaravella filed the notice of appeal in the trial court on August 5,
2015, and the notice was transmitted to this court on August 7. Because no filing fee
accompanied the notice, on August 12 this court issued its standard fee order. The
order required the appellant to submit to this court the $300 filing fee or indigency
documentation within thirty days, failing which the appeal would be subject to dismissal
and counsel subject to sanctions. Attorney Ciaravella did not respond.
On December 17, the court followed up with an order directing Attorney
Ciaravella to respond to the August 12 order within seven days or risk the imposition of
sanctions. Again, Attorney Ciaravella did not respond. By order dated February 2,
2016, this court again reminded Attorney Ciaravella that he had failed to comply with the
August 12, 2015, fee order and gave him seven days to either satisfy the order or file a
status report on his efforts to do so. The order advised Attorney Ciaravella that he
risked sanctions for failure to comply. Once again, Attorney Ciaravella did not respond.
On June 16, 2016, this court issued an order requiring Attorney Ciaravella
to appear at the court's June 30 oral argument session to show cause why he should
not be sanctioned for his failure to respond to the three orders just described. Attorney
Ciaravella responded to the court's order by filing a motion to appear in forma pauperis
on behalf of the appellant. The motion stated that while the appellant represented
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himself at trial, he initially agreed to allow Attorney Ciaravella to represent him on
appeal but was no longer communicating with counsel and failed to sign the application
for criminal indigent status. The appellant had executed a durable power of attorney,
and Attorney Ciaravella had the person designated sign the application. However, the
circuit court clerk refused to make an indigency determination because the application
was not signed by the appellant personally.
This court discharged the order to show cause, and on July 5, 2016,
denied the motion to proceed on appeal as indigent. The court directed Attorney
Ciaravella to "expeditiously seek review in the trial court of the clerk's refusal to address
the appellant's recent application for criminal indigent status and then, if necessary,
seek review in this court. See § 27.52(4), Fla. Stat. (2016); Fla. R. App. P. 9.430(a)."
Attorney Ciaravella did not respond.
On October 27, 2016, this court issued an order referring to the July 5
order and directing Attorney Ciaravella to file a status report on his efforts to comply
with it. Attorney Ciaravella did not respond. On December 15, 2016, this court issued
an order reminding Attorney Ciaravella that compliance with the October 27 order was
overdue and directing him to file a status report within ten days or risk the imposition of
sanctions.
On February 27, 2017, Attorney Ciaravella filed a status report seeking
direction from this court because the appellant refused to communicate with him and
failed to sign the criminal indigent status application and return it for processing.
However, Attorney Ciaravella acknowledged that the person the appellant designated
as his power of attorney signed the application and that the circuit court clerk refused to
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make a determination of indigency status. The status report made no mention of
attempts to seek review of the clerk’s refusal to process the indigency application, as
directed on July 5. On March 2, this court ordered Attorney Ciaravella to file a
supplement to his status report within twenty days advising the court of his efforts to
comply with the July 5 order, a copy of which was enclosed for his reference. Attorney
Ciaravella did not respond.
On April 13, this court by order reminded Attorney Ciaravella that his
compliance with the March 2 order was overdue and directed him to file a supplement to
his status report within ten days or the court would commence sanctions proceedings.
As a result of Attorney Ciaravella's failure to respond, this court issued a second order
to show cause on May 1 requiring him to appear at the court's May 23 oral argument
session to show cause why he should not be sanctioned for his failure to comply with
this court's orders of July 5, 2016, October 27, 2016, December 15, 2016, March 2,
2017, and April 13, 2017.
Attorney Ciaravella appeared at the oral argument but was unable to
adequately explain his failure to comply with this court's orders. He merely stated that it
was his understanding that he needed the consent of his client to participate in the
appeal or have it dismissed. Notably, Attorney Ciaravella at one point stated that he
was willing to do whatever the court wanted him to do, and the court reminded him that
it had specified what he needed to do in the July 5, 2016, order.
Attorney Ciaravella having failed to provide satisfactory answers to this
court's questions, this court removes him from further representation of the appellant in
2D15-3506. By separate order, the court has directed the circuit court to review the
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clerk's refusal to determine appellant's indigency status. Furthermore, due to Attorney
Ciaravella's failure to comply with this court's directives and the attendant delays, we
hereby refer this matter to The Florida Bar for investigation and initiation of such
proceedings as may be appropriate.
NORTHCUTT, KELLY, and CRENSHAW, JJ., Concur.
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