author: PER CURIAM. RAMIREZ, J. COPE, J.

text:
    Jerry WOODS and Eddie Talley, Appellants, v. HIALEAH HOTEL, INC., and Ramada Franchise Systems, Inc., Appellees.
    No. 3D02-1828.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.
    Roy D. Wasson; Raul E. Garcia, Jr.; and Sale & Kuehne, P.A. and Benedict P. Kuehne, Miami, for appellants.
    Scott A. Mager, Fort Lauderdale,and Gary S. Gaffney, Davie; Wolpe, Leibowitz, Alvarez & Fernandez, and George L. Fernandez, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, RAMIREZ, WELLS, and SHEPHERD, JJ.
   ON MOTION FOR REHEARING EN BANC

PER CURIAM.

The motion for rehearing is denied.

The motion for rehearing en banc is denied.

SCHWARTZ, C.J., and LEVY, GERSTEN, GREEN, SHEVIN, WELLS, and SHEPHERD, JJ., concur.

RAMIREZ, J.

(dissenting).

I must respectfully dissent in this Court’s denial of rehearing en banc which leaves standing an award of sanctions under section 57.105, Florida Statutes, against appellants and their appellate counsel.

This case has had a long and convoluted history that I will try to summarize as follows: Jerry and Linda Woods in one case, and Eddie Talley in another (collectively “plaintiffs”), brought suit against Hialeah Hotel, Inc. and Ramada Franchise Systems, Inc. (collectively “defendants”) contending that Ramada had failed to provide sufficient security in its parking lot and that Jerry Woods and Eddie Talley had been injured in a criminal attack there. The trial court decided to bifurcate these cases and conduct an initial jury trial on liability only. The jury returned a verdict in favor of plaintiffs.

Defendants then filed two appeals. The first, in Hialeah Hotel, Inc. v. Woods, 778 So.2d 314 (Fla. 3d DCA 2000); and the second, and more relevant one, in Hialeah Hotel, Inc. v. Talley, 790 So.2d 466 (Fla. 3d DCA 2001). In this second appeal, the Court dismissed the defendants’ appeal as untimely. The Court then proceeded to act as judge, jury and executioner by stating the following, which I quote in its entirety, leaving out all citations:

This action [of dismissal] is taken totally without prejudice to the trial court’s own reconsideration of its existing interlocutory orders which may and should be revisited in the light of our view, which we express — although necessarily by way of dicta — in the strongest possible terms: that, as a matter of law, the plaintiffs who, beyond peradventure, were conducting a drug transaction inside a vehicle in the parking lot of the defendants’ hotel when they were robbed and shot by unknown perpetrators, are not entitled to recover. The record — including directly relevant testimony erroneously excluded by the trial court, demonstrates that the defendants’ actions in allegedly failing to provide proper lighting and security were not a legal cause of the plaintiffs’ injuries, breached no cognizable duty, and created no “zone of risk,” to the plaintiffs, who were engaged in the commission of unlawful acts they affirmatively wished to conceal. The trial court should quickly put an end to this travesty:

The Court also included a footnote, which stated that “the circumstances strongly indicate that the case should be dismissed under the doctrine that a perjurer may not maintain a civil action in Florida,” citing Metropolitan Dade County v. Martinsen, 736 So.2d 794 (Fla. 3d DCA 1999) and Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998).

The plaintiffs thereafter unsuccessfully attempted to persuade this Court to rescind its dicta, followed by a denial of review by the Florida Supreme Court. Upon remand, the defendants moved for a directed verdict. The trial court stated that it was “very unhappy about the situation we’re in now ... [T]he proffered evidence ... what I heard in the trial court, was not anything like what I read in the briefs.... As much as I think this was a miscarriage, I respect the appellate judges that have I have [sic] been guided by the past. They made it perfectly clear. And for me to extend this case any longer, would be a worse wrong than that the fact that these plaintiffs were not fairly treated in the media or perhaps by the court. But that’s my humble opinion. And I’m bound by the appellate court.” The trial court then directed a verdict for the defendants.

No finder of fact at the trial level had ever found that the plaintiffs were conducting a drug transaction. The defendants had never moved to dismiss the case because the plaintiffs had lied. This is not a situation like Metropolitan Dade County v. Martinsen, 736 So.2d 794 (Fla. 3d DCA 1999), where the plaintiffs misrepresentations and omissions about her accident and medical history during discovery went to the heart of her claim and subverted the integrity of her action. Nor was this a case like Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998), where a party who had actually been convicted of perjury in the prosecution of a civil action nevertheless claimed the right to continue to maintain it.

In this latest appeal, the plaintiffs sought to reinstate the jury verdict arguing that it was supported by the evidence, when viewed in the light most favorable to them. In the alternative, they argued that if the trial court erred in excluding the defendants’ evidence, the remedy was a new trial, not a directed verdict. Finally, they argued that this Court’s prior opinion had not mandated a directed verdict. To sanction a litigant and its counsel under section 57.105 for trying to reinstate a jury verdict, or at worst, retry the case in front of a new jury, is totally unprecedented and will have a chilling effect on the ability of litigants to seek their appellate remedies, and to obtain counsel willing- to pursue them. The only triers of fact in this case — the jury — found in favor of the plaintiffs. The only judge who actually heard the evidence- — the trial court — was obviously distressed by the outcome in this case.

At the proceedings before the trial court, the defendants tried to portray the plaintiffs as drug dealers attacked during a drug transaction. This was hotly disputed. I do not quarrel with the fact that there was evidence with which to suspect the plaintiffs were involved in illegal activity. I would also have no quarrel with the defendants receiving' a new trial in view of the rulings by the trial court which excluded evidence that the plaintiffs may have been drug dealers. What I find offensive is that an appellate court should, in a case without jurisdiction, direct the outcome of a case where there was such a strongly contested factual dispute. What is even more offensive is that the affected parties should then be sanctioned for pursuing an appeal' in front of a panel which had jurisdiction to review the trial proceedings.

As to the merits of the case, plaintiffs presented evidence that, according to a Wackenhut security survey commissioned by the hotel prior to the attack, the exteri- or lighting was “antiquated” and “poor.” Arthur Sweeney, the Wackenhut area supervisor who performed that security survey, testified that the hotel’s lighting “wasn’t sufficient.” There was no fence surrounding the property as a perimeter deterrent, no closed circuit cameras or exterior alarms, no security guard on duty, and no limitation of access through exteri- or doors.

The lesson from this case is that our dicta carries more weight than our case law, such as Azar v. Richardson Greenshields Sec., Inc., 528 So.2d 1266, 1269 (Fla. 2d DCA 1988), where we stated:

A motion for directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon which is favorable to the non-moving party. Hartnett v. Fowler, 94 So.2d 724 (Fla.1957). The motion must be denied if the evidence is conflicting or different conclusions or inferences can be drawn from it. Maximo Moorings Marine Center, Inc. v. Walke, 196 So.2d 215 (Fla. 2d DCA 1967). Further, the trial court may not pass upon the credibility of witnesses or weigh the evidence in ruling on the motion. Maas Bros., Inc. v. Bishop, 204 So.2d 16 (Fla. 2d DCA 1967).

I believe we should reconsider and deny sanctions under section 57.105.

GODERICH and FLETCHER, JJ., concur.

COPE, J.

(dissenting).

Under the circumstances present here, attorney’s fees should not have been assessed under subsection 57.105(1), Florida Statutes.

After this court’s decision in Hialeah Hotel, Inc. v. Talley, 790 So.2d 466 (Fla. 3d DCA 2001), mandamus denied, 816 So.2d 129 (Fla.2002), and review denied, 819 So.2d 140 (Fla.2002), the defendants-appellees filed a motion for entry of judgment in accordance with the defendants’ earlier motion for directed verdict. Included was an alternative motion to strike the pleadings of plaintiffs-appellants for perjury.

The trial court granted the first motion, ruling that the defendants were entitled to a directed verdict. Having done so, the trial court did not reach the alternative request to strike the pleadings. That issue had become moot because of the entry of the directed verdict. Further, to resolve that alternative motion would have required an evidentiary hearing.

The plaintiffs appealed. Under the procedural circumstances, the only issue before this court was whether there was sufficient evidence to submit plaintiffs’ negligence claim to the jury. I have no quarrel with the panel’s decision to affirm the trial court ruling. However, I am not prepared to say that the question of legal sufficiency was so clear-cut as to render the appeal frivolous. Thus, I do not think that attorney’s fees should have been ordered under subsection 57.105(1), Florida Statutes, in favor of defendant Hialeah Hotel, Inc.

FLETCHER, J., concurs.

      . The motion should have been for a judgment notwithstanding the jury verdict.

      . Additionally, I agree that Ramada should be awarded sanctions, as it was the mere franchisor of the hotel. My quarrel is only with Hialeah Hotel’s award of sanctions.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Ted G. BORREGO, Jr., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMM., et al., Appellee.
    No. 3D04-439.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.

      Ted Borrego, Jr., in proper person.
    John D. Maher (Tallahassee), for Appel-lee, Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and COPE, and RAMIREZ, JJ.
   RAMIREZ, J.

Ted G. Borrego, Jr., appeals the order of the Unemployment Appeals Commission which determined that he was ineligible to receive unemployment compensation benefits. We reverse.

The unemployment appeals referee found that Borrego had been employed since May 14, 2002 as a dispatcher/customer service representative. On March 1, 2003, Borrego left at 7:30 p.m. because his wife was in the hospital. He did not punch out when he left early from work on that day.

On March 8, 2003, the general manager asked Borrego why he informed the dispatch manager that he had left at 10:00 p.m., when in fact he had left at 7:30 p.m. Borrego advised the general manager that he left early because his wife was in the hospital. The general manager told Borrego that he was discharged for falsifying time records. The referee concluded that this isolated incident of poor judgment did not constitute misconduct within the meaning of section 443.036(29), Florida Statutes (2004), and ordered that unemployment benefits be granted.

Although the Unemployment Appeals Commission claims to have reversed the referee’s decision because the referee’s decision was not in accord with the law, in reality it reviewed the record and concluded that Borrego was discharged for “falsifying his time record.” This contradicts the referee’s finding that Borrego informed the general manager that he had left early because his wife was in the hospital. While the Commission may reach a different conclusion of law based upon the same evidence, it may not modify the facts to do so. See Berry v. Scotty’s, Inc., 711 So.2d 575, 577 (Fla. 2d DCA 1998); Wall v. Unemployment Appeals Comm’n, 682 So.2d 1187 (Fla. 4th DCA 1996); David Clark & Assocs. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980).

Thus, the Commission erred in concluding that Borrego engaged in “misconduct” disqualifying him for unemployment compensation benefits. Section 443.036(29), Florida Statutes (2003), provides:

(29) “Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to such a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

In Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000), the Florida Supreme Court stated that “[i]n defining misconduct, courts are required to liberally construe the [unemployment compensation] statute in favor of the employee.” We agree with the referee that a single, isolated act of negligence does not constitute disqualifying misconduct. See, e.g., Ash v. Florida Unemployment Appeals Comm’n, 872 So.2d 400, 402 (Fla. 1st DCA 2004) and the cases cited.

Reversed and remanded.


author: PER CURIAM.

text:
    Tracy Posner WARD, Kelly Posner-Gerstenhaber, Jarrett Posner, and Sean Posner, Appellants v. Brenda NESTOR, as Personal Representative of the Estate of Victor Posner, and Troy Posner, Appellees.
    No. 3D03-2989.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.
    Hunton & Williams and Marty Stein-berg and Thomas R. Julin and Eduardo Gonzalez and Daniel Fridman, Miami, for appellants Kelly Posner-Gerstenhaber, Jarrett Posner and Sean Posner; Alschu-ler Grossman Stein & Kahan and Stanton L. Stein and Mark A. Neubauer and Michael A. Sherman and Rebecca Edelson; Golden & Cowan and Edward I. Golden and Steven M. Toister, for appellant Tracy Posner Ward.
    Ferrell, Schultz, Carter & Fertel and Joseph Beeler, Miami; Tescher, Gutter, Chaves, Josepher, Rubin, Ruffin & For-man and Norman A. Fleisher; Kirkland & Ellis and Andrew B. Clubok and Richard A. Cordray and John P. Consoulin, for appellees.
    Before SHEVIN, WELLS and SHEPHERD, JJ.
   PER CURIAM.

Tracy Posner Ward, Kelly Posner-Ger-stenhaber, Jarret Posner, and Sean Pos-ner, petitioners seeking partial or total revocation of Victor Posner’s June 28, 2001 will, appeal from two probate court orders, one approving a settlement agreement between co-petitioner Troy Posner, Victor Posner’s estate and the personal representative individually, the other denying their joint motion for appointment of an administrator ad litem.

Upon consideration of the arguments made in the parties’ briefs and at oral argument, we dismiss both appeals as premature without prejudice to re-raising both issues following final disposition of the revocation proceedings.


author: WELLS, Judge.

text:
    Jessica ROGERS, Appellant, v. William BROWN, Appellee.
    No. 3D03-3348.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.
    Patrick G. McDonald, for appellant.
    William Brown, in proper person.
    Before SHEVIN, WELLS, and SHEPHERD, JJ.
   WELLS, Judge.

Jessica Rogers, appeals portions of a final judgment establishing paternity, awarding custody, visitation and support, and adjudicating the parties’ interests in certain assets. We find no error in the trial court’s rulings with the exception of its failure to address Rogers’ request for attorney’s fees and remand for a ruling on that request. See, e.g., Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)(observing “[i]t is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence,” but rather the test is “whether the judgment of the trial court is supported by competent evidence”); Harbin v. Harbin, 762 So.2d 561, 563 (Fla. 5th DCA 2000) (finding reversible error where the trial court failed either to rule on a fee request or to reserve jurisdiction to do so); see also § 61.30(17)(b), Fla. Stat. (2003) (observing that in determining a retroactive award the court shall consider “[a]ll actual payments made by the noncustodial parent to the custodial parent or the child or third parties for the benefit of the child throughout the proposed retroactive period”); § 742.031, Fla. Stat. (2003)(providing that in a paternity action, “[i]f appropriate, the court shall order the father to pay ... moneys sufficient to pay reasonable attorney’s fees”); § 742.045, Fla. Stat. (2003) (“[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter”). The order under review is affirmed in all other respects.

Affirmed in part and remanded.


text:
    CUSTOM PLASTERING, INC., etc., Appellant, v. ROBERT BLIGH & SON CORP., etc., and J.D. Bligh Construction, Inc., Appellees.
    No. 4D03-299.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    William Manikas, Boynton Beach, for appellant.
    David S. Nicnick, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellant brought this action to foreclose a mechanic’s lien and the appellee counterclaimed alleging defective work. The case was tried non-jury in November, 1999, and over three years later the trial court entered a final judgment containing no explanation as to the amount of the judgment for appellee.

The court made no statements indicating its reasoning at the conclusion of the trial, nor did it have the benefit of the transcript when it entered the final judgment. Under these circumstances a new trial is required. Donn v. Donn, 733 So.2d 581 (Fla. 4th DCA 1999) (ten month delay and no findings in the judgment supporting alimony award required new trial); Porter v. Estate of Spates, 693 So.2d 88 (Fla. 1st DCA 1997) (twenty month delay between trial and judgment, where judgment did not explain factual basis for finding of undue influence, required new trial). Reversed.

KLEIN, STEVENSON and SHAHOOD, JJ., concur.


text:
    Darryl McCORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3622.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, and Darryl McCord, Moore Haven, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We deny the Appellant’s 3.800(b)(2) motion without prejudice to him filing a 3.800(a) motion in the trial court.

AFFIRMED.

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    Sheri Lynn ROSS, Appellant, v. Richard ROSS, Appellee.
    No. 4D03-4424.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, and Mark S. London of the Law Offices of Mark S. London, P.A., Hollywood, for appellant.
    Richard S. Ross, Fort Lauderdale, pro se.
   PER CURIAM.

Affirmed. See Roberts v. Roberts, 689 So.2d 378 (Fla. 4th DCA 1997).

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


author: CANADY, Judge.

text:
    STATE of Florida, Petitioner, v. Beverly J. TOWNSEND, Respondent.
    No. 2D04-1370.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Petitioner.
    Bob Dillinger, Public Defender, and Joy Goodyear, Assistant Public Defender, Clearwater, for Respondent. •
   CANADY, Judge.

The State filed a petition for writ of certiorari seeking review of an order from the circuit court sitting in its appellate capacity. The order determined that the two-year statute of limitations period defined in section 775.15, Florida Statutes (1999), applied to the crime of petit theft charged against Beverly J. Townsend. Because we conclude that the circuit court departed from the essential requirements of law by applying the incorrect statute of limitations, we grant the State’s petition for writ of certiorari.

Townsend was charged by information on October 27, 1999, with petit theft for an offense which allegedly occurred on July 2, 1999. Townsend was summoned to appear for the charge on November 2, 1999, but failed to appear. A capias was issued on November 29, 1999, but Townsend was not arrested until May 21, 2003. Townsend contended that the State had failed to make reasonable and diligent efforts to execute the capias and that the statute of limitations had expired. Based on these circumstances and the application of the two-year statute of limitations period under section 775.15, Florida Statutes (1999), the county court dismissed the information.

The circuit court affirmed the dismissal based on its conclusion that the proceeding was barred by the two-year statute of limitations. In its petition, the State argues that the circuit court’s conclusion regarding application of the two-year statute of limitations was a departure from the essential requirements of law. In support of this argument, the State points to our recent decision in State v. Telesz, 873 So.2d 1236 (Fla. 2d DCA 2004).

The State is correct in its contention that this case is governed by Telesz. In Telesz, we held that the five-year statute of limitations set forth in section 812.035(10), Florida Statutes (1997), was the controlling statute of limitations for the offense of petit theft. Id. at 1238. We also held in Telesz that the application of the two-year statute to the offense of petit theft was a departure from the essential requirements of law by the circuit court sitting in its appellate capacity. Id.

Here, as in Telesz, the five-year statute of limitations is applicable. Accordingly, we grant the petition for writ of certiorari and remand this case for further proceedings consistent with Telesz.

KELLY and WALLACE, JJ., concur.

      . See § 775.15(5)(b), Fla. Stat. (1999); see also State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000).

      . We note that neither the circuit court nor the county court had the benefit of our decision in Telesz when they issued their rulings.


author: STEVENSON, J.

text:
    STATE of Florida, Attorney General, Charles J. Crist, Jr., in his official capacity, Florida Department of Health, John Agwunobi, M.D., Secretary, in his official capacity, and Florida Board of Medicine, Appellants, v. PRESIDENTIAL WOMEN’S CENTER, Michael Benjamin, M.D., North Florida Women’s Health and Counseling Services, Inc., et al., Appellees.
    No. 4D02-4485.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2004.

      Charles J. Crist, Jr., Attorney General, James Peters, Special Counsel, and John Rimes, Senior Assistant Attorney General, Tallahassee, for appellants.
    William W. Large, Tallahassee, for appellants Department of Health and Secretary John Agwunobi.
    Matthew D. Staver, Erik W. Stanley and Anita L. Staver of Liberty Counsel, Long-wood, and Teresa Stanton Collett, Minneapolis, MN, for Amicus Curiae Christian Medical Association and Catholic Medical Association.
    Barry M. Silver, Boca Raton, for appel-lee North Florida Women’s Health & Counseling Services, Inc.
    Marshall J. Osofsky of Moyle, Flanigan, Katz, Raymond and Sheehan, P.A., West Palm Beach, and Bebe J. Anderson, New York, NY, for appellees Presidential Women’s Center and Michael J. Benjamin, M.D.
    Donna Lee of Planned Parenthood Federation of America, New York, NY, for Amicus Curiae Florida Association of Planned Parenthood Affiliates, Planned Parenthood of Northeast Florida, Inc., Planned Parenthood of Southwest and Central Florida, Inc., Planned Parenthood of South Palm Beach & Broward Counties, Inc., Planned Parenthood of North Central Florida, Inc., Planned Parenthood of the Palm Beach and Treasure Coast Area, Inc., Planned Parenthood of Greater Orlando, Inc., American Civil Liberties Union of Florida and American Civil Liberties Union Reproductive Freedom Project.
   STEVENSON, J.

We have for review the trial court’s order granting summary judgment in favor of Appellees, Presidential Women’s Center, Michael Benjamin, M.D., and North Florida Women’s Health and Counseling Services, Inc. (collectively Presidential Women’s Center), and finding unconstitutional Florida’s abortion informed-consent statute, also known as the “Women’s Right to Know Act” (the Act). See § 390.0111, Fla. Stat. (1997); Ch. 97-151, § 1, Laws of Fla. (CS/HB 1205). We affirm.

The Act prohibits the termination of all pregnancies except where the physician performing the procedure or the referring physician, at a minimum, orally and in-person informs the woman of certain statutorily mandated information and obtains her written consent. We first reviewed a challenge to the Act when the trial court granted Presidential Women’s Center’s amended emergency motion for temporary injunction, enjoining appellant, the State of Florida (State), from enforcing the Act. We affirmed the trial court’s order granting the temporary injunction because we found two provisions of the Act, in particular, to be “sufficiently problematic ... to leave the temporary injunction in place.” State v. Presidential Women’s Ctr., 707 So.2d 1145, 1151 (Fla. 4th DCA 1998)(Presidential Women’s Center I).

On remand, both Presidential Women’s Center and the State filed motions for summary judgment. The trial court granted Presidential Women’s Center’s motion for summary judgment, finding that the Act violates Florida’s constitutionally protected right to privacy because it impermissibly intrudes upon the woman’s right to choose at every stage of her pregnancy without furthering a compelling State interest. The trial court also found the statute to be unconstitutionally vague because it required the physician performing the abortion to satisfy a unique and confusing “reasonable patient” standard. Additionally, the trial court concluded that the issue was ripe for summary judgment since the Act was unconstitutional on its face.

We first address the State’s argument that summary judgment was improper because a factual record could be developed to demonstrate that the Act will not result in an increased cost to the woman, will cause no intrusion on the physician’s practice and allows the physician discretion. We acknowledge that the constitutionality of a statute can present a mixed question of fact and law depending upon the nature of the statute involved and the scope of its threatened operation. See Glendale Fed. Sav. & Loan Ass’n v. State, Dep't of Ins., 485 So.2d 1821, 1824-25 (Fla. 1st DCA 1986). Further, the requirement that a woman give what is truly a voluntary and informed consent to a medical procedure, as a general proposition, is also proper and not unconstitutional. See In re T.W., 551 So.2d 1186, 1197 (Fla.1989). However, we find, as the trial court did, that even if the State could develop factual evidence in support of each of its positions, as a matter of law, the Act is unconstitutional because, on its face, it imposes significant obstacles and burdens upon the pregnant woman which improperly intrude upon the exercise of her choice between abortion and childbirth.

The substantive law on abortion in Florida does not mirror that of the federal law. In T.W., the Florida Supreme Court noted that, unlike the federal Constitution, “Florida is unusual in that it is one of at least four states having its own express constitutional provision guaranteeing an independent right to privacy.” Id. at 1190. As a result, the Florida Supreme Court has, on more than one occasion, stated that the Florida Constitution “embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution.” Id. at 1191-92 (citing Winfield v. Div. of Pari-Mutuel Wagering, Deft of Bus. Regulation, 477 So.2d 544, 548 (Fla.1985)).

Florida courts apply the highly stringent “strict scrutiny” standard in determining whether a legislative enactment impermissibly infringes on the right to privacy:

“Since the privacy section as adopted contains no textual standard of review, it is important for us to identify an explicit standard to be applied in order to give proper force and effect to the amendment. The right of privacy is a fundamental right which we believe demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.”

T.W., 551 So.2d at 1192 (quoting Winfield, 477 So.2d at 547).

Florida courts have further found that Florida’s privacy provision is implicated in a woman’s decision of whether or not to continue her pregnancy. See id. at 1192. See also Renee B. v. Fla. Agency for Health Care Admin., 790 So.2d 1036, 1041 (Fla.2001)(stating “[t]he right of privacy in the Florida Constitution protects a woman’s right to choose an abortion”). In this respect, the Florida Supreme Court recently reaffirmed that the trimester framework announced in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), rather than the “undue burden” standard delineated in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), is the law to be applied in Florida in determining whether the State's regulation impermissibly infringes on the woman’s right to choose. See N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 634 (Fla.2003)(“NFWHCS ”)(deelining the State’s invitation to abandon the strict scrutiny standard in favor of the less stringent undue burden standard announced in Casey).

Under the Roe trimester framework, during the first trimester, the abortion decision and its effectuation must be left to the woman and cannot be significantly restricted by the State. See T.W., 551 So.2d at 1193-94. During the second trimester, the State, in promoting its interest in the health of the mother, may regulate the abortion procedure in ways that are reasonably related to the mother’s maternal health. See id. The State’s interest becomes compelling during the last trimester, or beginning roughly at the point of viability, because the State has an interest in promoting the potentiality of human life. See id. In addition to meeting its heavy burden of demonstrating that its interests are compelling, the State must present proof that the compelling interests are in fact furthered by the statutory intrusion into the protected fundamental rights, and that the statutory intrusion is the least intrusive means to achieve that goal. See id.

The Florida Supreme Court declared the statutes regulating abortion in T.W. and NFWHCS unconstitutional because they implicated a woman’s right to choose without furthering a compelling state interest. T.W. involved a challenge to an Act that required a pregnant minor to obtain the consent of her parent prior to an abortion. The court found the Act to be unconstitutional because it intruded upon the pregnant minor’s privacy from conception to birth. Additionally, the court found that the State could have no special interests in protecting the pregnant minor where an abortion is concerned, in light of the wide latitude it otherwise grants to unwed minors to make life-or-death decisions concerning themselves or existing children without parental consent no matter how dire the possible consequences. See 551 So.2d at 1195.

The supreme court reached a similar conclusion in NFWHCS, which involved a challenge to the Parental Notice of Abortion Act, requiring a pregnant minor to notify a parent of her decision to undergo an abortion or, alternatively, convince a court that she is sufficiently mature to make the decision herself. The court noted that nothing whatsoever had changed in the statutory scheme since T.W., as Florida law continued to allow an unwed pregnant minor to consent to more dangerous pregnancy-related medical procedures for herself and her child without parental consent. Adopting the trial court’s findings, the court outright rejected the State’s argument that an abortion procedure is different. The court noted that the risks to a pregnant minor who carries a child to term are potentially greater than the risk of having an abortion, and there is nothing to suggest that a minor is any more mature about making other pregnancy-related medical decisions, i.e., determining medical treatment for the child or giving the child up for adoption. Yet, the state does not require parental notice in any of those situations. See 866 So.2d at 634.

Returning to the instant case, the statute at issue runs afoul of Florida law in several ways. We adopt the findings set forth in the trial court’s final order since they are correct and aptly state the law in this area. The final order granting summary judgment provides in part:

10. By interfering with the right of a woman seeking an abortion “to be alone and free from governmental intrusion into [her] private life”, the Amended Statute clearly implicates the right to privacy, Fla. Const., art. I, § 23. By not allowing a physician to tailor the [provided] information to the woman’s circumstances, [the Act] infringes on the woman’s ability to receive her physician’s opinion as to what is best for her, considering her circumstances. State v. Presidential Women’s Ctr., 707 So.2d 1145, 1150 (Fla. 4th DCA 1998), as corrected by 709 So.2d 623, (Fla. 4th DCA 1998);

15. The Legislature has made no distinction in the Amended Statute between first or second trimester, nor has it made any distinction between viability and pre-viability. This is significant in considering the issue of the Amended Statute’s constitutionality.

The State’s interest in safeguarding a woman’s health becomes compelling only after the first trimester of pregnancy. However, the subject Amended Statute is not limited to any stage of pregnancy, but rather intrudes upon a woman’s right to obtain abortion at any stage, be it during the first, second or third trimester. The Amended Statute does not further a compelling state interest. Therefore, the Amended Statute violates Florida’s constitutional protected right of privacy;

16. The language of the Amended Statute restricts the categories of physicians authorized to provide informed consent information to an abortion patient and infringes on a woman’s ability to receive her physician’s opinion as to what is best for her considering her particular circumstances. This is constitutionally impermissible. Presidential Women’s Center, 707 So.2d at 1149-1150.

17. The Amended Statute requires inter alia that:

1. The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, in person, informed the woman of: (a) the nature and risk of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy.

By imposing the restriction that informed consent is obtained only if the physician performing the abortion or referring physician orally informs the woman, the State is not employing the least intrusive means of serving an interest in a woman’s health. The Amended Statute allows a referring physician, who may be a pediatrician or an orthopedic surgeon, and who may have no training or experience in the field, to provide the information, but prohibits a board certified obstetrician/gynecologist who works with the physician performing the abortion from informing the woman of this important information. The language of the Amended Statute restricts the categories of physicians allowed to give the required information;

18. The Amended Statute requires that the physician must orally and in person inform the woman of:

a. [t]he nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision to terminate a pregnancy, (emphasis added).

19. Prior to the amendment of the subject statute, physicians performing abortions were allowed to comply with the general informed consent statute which requires the physician to tailor the information given to the patient to the circumstances of that patient and to comport with the standard of conduct within the medical community in doing so. Presidential Women’s Center, 707 So.2d at 1150; see also Section 766.103, Fla. Stat.;

20. Under Florida’s Medical Consent Law, physicians are to provide information that would enable a “reasonable individual, ... under the circumstances, [to] have a general understanding of ... the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians ... in the same or similar community who perform similar treatments or procedures.” Section 766.103(3)(a)(2), Fla. Stat.;

21. The Amended Statute contains neither provision. It does not allow physicians to conform the information to the patient’s circumstances or to the accepted standard of medical practice in the same or similar community. Instead, the Amended Statute standardizes the information being given to all women and removes the discretion accorded physicians in all circumstances other than abortion;

22. The Amended Statute “infringes on the woman’s ability to receive her physician’s opinion as to what is best for her, considering her circumstances.” Presidential Women’s Center, 707 So.2d at 1150;

25. The test of vagueness of a statute is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.... The statute must give reasonable notice that a person’s conduct is restricted by the statute.

Presidential Women’s Center, 707 So.2d at 1150;

26. The Amended Statute mandates that a physician performing an abortion must satisfy a unique and confusing “reasonable patient” standard or risk disciplinary proceedings. Statutes that pose the risk of license sanctions must be strictly construed in determining whether they violate the due process clause of the Florida Constitution. See, e.g., Whitaker v. Department of Insurance & Treasurer, 680 So.2d 528, 531 (Fla. 1st DCA 1996); cf. D’Alemberte v. Anderson, 349 So.2d 164, 168 (Fla.1977);

27. The Amended Statute requires a physician to provide information that a “reasonable patient would consider material.” The Amended Statute fails to provide any guidance as to how a physician can meet that requirement.... The language of the Amended Statute requires that a physician provide information targeted to some hypothetical “reasonable patient” rather than the patient who is actually in front of him or her, without any guidance on how to do so;

28. As previously noted, prior to the amendment of the subject Amended Statute, physicians performing abortions were required to comply with the general informed consent statute which requires the physician to tailor the information given to the patient to the circumstances of that patient and to comport with the standard of conduct within the medical community in doing so. Under Florida’s Medical Consent Law, physicians are to provide information that would enable a “reasonable individual, ... under the circumstances, [to] have a general understanding of ... the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians ... in the same or similar community who perform similar treatments or procedures.” Section 766.103(3)(a)(2), Fla. Stat. “By changing informed consent from what a reasonable physician would do under the circumstances, to what a reasonable patient would want to know, but without the traditional informed consent language ‘under the circumstances,’ leaves the physicians with no standards to comport to.” Presidential Women’s Center, 707 So.2d at 1151;

29. By changing the informed consent law applicable to abortion providers from what a reasonable physician would do under the circumstances to what a reasonable patient would want to know, but without the traditional informed consent language, the Amended Statute is vague in that it leaves the physician with no standards with which to conform. As such, by requiring the physician to guess as to how to comply with the Amended Statute, or risk penalties including licen-sure penalties, the Amended Statute violates due process and is otherwise void for vagueness;

30. The vagueness of the Amended Statute is increased by the ambiguity created by its reference to “medical risks” in Section 390.0111(3)(a)l.e, but then making reference simply to “risks” in Section 390.0111(3)(a)l.a. It is unclear whether the physician is required to inform the patient of non-medical risks associated with undergoing or not undergoing an abortion. The Amended Statute provides no guidance as to what types of non-medical risks a physician must disclose nor on how to determine which economic, social, emotional or other risks associated with childbirth or terminating a pregnancy would be “material” to a “reasonable patient.”;

32. To sever the challenged portions of the Amended Statute would be to sever subsections of the informed consent section. To do so would reduce the section to being nonsensical and incomplete. Accordingly, the constitutional defects of Section 390.0111(3) cannot be cured by severing portions of it.

As stated previously, we find that the trial court’s final order, which relied heavily on our prior decision in Presidential Women’s Center I, is legally correct and we affirm the summary judgment. We have examined the other issues raised on appeal, but find no error. Accordingly, the final judgment on review finding unconstitutional Florida’s abortion informed-consent statute, also known as the “Women’s Right to Know Act,” is AFFIRMED.

POLEN and KLEIN, JJ., concur.

      .The relevant portion of the Act provides:
      (3) Consents required....
      (a) Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if:

        1. The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, in-person, informed the woman of:

        a. The nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy.

      b. The probable gestational age of the fetus at the time the termination of pregnancy is to be performed.
      c. The medical risks to the woman and fetus of carrying the pregnancy to term.
      2. Printed materials prepared and provided by the department have been provided to the pregnant woman, if she chooses to view these materials, including:
      a. description of the fetus.
      b. A list of agencies that offer alternatives to terminating the pregnancy.
      c. Detailed information on the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care.
      3. The woman acknowledges in writing, before the termination of pregnancy, that the information required to be provided under this subsection has been provided. Nothing in this paragraph is intended to prohibit a physician from providing any additional information which the physician deems material to the woman's informed decision to terminate her pregnancy.

        (b) ... [allowing for emergency abortion procedures without compliance with informed consent requirements].
      (c) Violation of this subsection by a physician constitutes grounds for disciplinary action under s. 458.331 or s. 459.015.... Ch. 97-151, Laws of Fla. (amending Chapter 390, Florida Statutes)(emphasis added).


text:
    Michael D. CAMBRIDGE, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3347.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

Michael D. Cambridge, Sr., appeals his conviction and sentence for firing into a vehicle. We conclude that the issues raised by Cambridge with respect to his conviction do not have merit; we affirm the conviction without further comment. But Cambridge’s claim that his sentence was vindictive has merit; we reverse the sentence and remand for resentencing.

Background

Cambridge contends that he was subjected to vindictive sentencing because the trial court offered him a sentence of time served if he would enter a guilty plea but imposed a sentence of seven years — consecutive to a prior fifteen-year sentence in an unrelated case — after Cambridge rejected the plea offer, went to trial, and was convicted by the jury. At the trial, Cambridge represented himself, assisted by standby counsel.

The parties offer no transcript of any contemporaneous plea offer to Cambridge. The record on this issue consists of the transcribed statements by the court just prior to the trial. In the presence of the prosecutor and standby counsel, but apparently not Cambridge, at various times in colloquy the trial judge made the following statements:

What’s the minimum guidelines on this case? I’ll offer him whatever the minimum is. I tried to get him to take time served.
... He didn’t want it. I tried to get them to reduce it to a misdemeanor because he already had 15 in [Cambridge’s sentence in the unrelated case], and they wouldn’t do it.
... I have been beating my head to try and get them to offer a misdemean- or. I didn’t offer him 15 concurrent. I said I would find a way to depart and give him time served if he wanted to enter a plea. I don’t think he’s interested. He wants his trial.
... 20.4 [months]. He probably got more than that done or close to that done. I could offer him time served, but I don’t think he’s interested.
... I don’t care. I’ll do a withhold time served to solve the problem, but I don’t think he will. If he will, great. They won’t reduce it to a misdemeanor so he’s pleading to a felony, and that has always been his problem. But I would offer him a withhold and time served, rather than sit here all day.

Discussing Cambridge’s request for a continuance and the possibility of Cambridge’s accepting representation by counsel, the court stated to Cambridge and standby counsel: “If you continue this until December, you would have 20 months in and I can offer withhold and time served under the ... and it would have to be a guideline sentence if we are doing that, right?” Later in the colloquy, the court stated:

We have had a number of pretrial dates, four trial dates. We have attempted to put this thing together. We have spent untold amounts of time and money, and I’ve been on both the State and you to get this resolved. I’ve been trying to get the State to offer a misdemeanor, so we could get it resolved. They didn’t. I, myself, offered a withhold and time served to get it resolved, and you didn’t want to because of the appeal. So, despite my best efforts, I have been ordered to get this resolved by either side.

Analysis

“[A] totality of the circumstances review ... is the ... appropriate analysis to employ to determine whether a defendant’s constitutional right to due process of law was violated by the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated.” Wilson v. State, 845 So.2d 142, 156 (Fla.2003). A presumption of vindictiveness arises where “there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (citations omitted); see also Wilson, 845 So.2d at 156 (citing Smith).

In determining whether — based on the totality of the circumstances — a sentence was vindictive, “[j]udicial participation in plea negotiations followed by a harsher sentence is one of the circumstances” which must be considered. Wilson, 845 So.2d at 156. Other pertinent circumstances include but are not limited to:

(1) whether the trial judge initiated the plea discussions with the defendant in violation of [State v.] Warner [, 762 So.2d 507 (Fla.2000) ]; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. (footnote omitted). Where the trial judge “by his or her comments appears to have departed from the role of a neutral arbiter” such conduct in itself “may give rise to a presumption of judicial vindictiveness that would shift the burden to the State to produce affirmative evidence on the record to dispel the presumption.” Id. The “general rule” is that it is improper for the judge “to advocate for a plea offer.” Id. “When the trial judge becomes an advocate for a plea ... the trial judge runs the risk of departing from its critical role as a neutral arbiter.” Id. at 156-57.

A showing of vindictiveness thus does not require that the trial judge affirmatively intended to punish the defendant for rejecting a plea. “ ‘[V]indictive’ in this context is ‘simply a term of art which expresses the legal effect of a given objective course of action, and does not imply any personal or subjective animosity between the court [ ] and the defendant.’ ” Harris v. State, 845 So.2d 329, 331 (Fla. 2d DCA 2003) (quoting Frazier v. State, 467 So.2d 447, 449 n. 4 (Fla. 3d DCA 1985)); accord Blanco v. State, 849 So.2d 381, 383 (Fla. 3d DCA 2003).

In the instant case, it is not clear that the court initiated plea discussions. Nor is it even alleged that the court ever stated to Cambridge that there would be any sentencing repercussions if the plea offer was rejected and Cambridge was convicted at trial. But the record demonstrates not only a great “disparity between the plea offer and the ultimate sentence imposed,” but also a departure by the trial judge from his “role as an impartial arbiter” evidenced by the judge’s “urging the defendant to accept a plea.” Wilson, 845 So.2d at 156. It is undisputed that at some point the court made an extremely lenient offer of a sentence of time served and attempted to persuade Cambridge to accept that offer. The court’s determined and vigorous efforts to arrange a plea and thereby avoid going to trial — efforts that are entirely inconsistent with the court’s role as a neutral arbiter — warrant a presumption of vindictiveness with respect to the seven-year sentence imposed after Cambridge elected to go to trial. Furthermore, the presumption remains unrebut-ted. The record contains no explanation of the grounds for the sentence other than the nature of the crime committed, which generally was known to the court prior to the trial. There is thus a “lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his ... right to a trial.” Id. at 156.

Conclusion

Based on these circumstances, we conclude that the sentence was imposed in violation of Cambridge’s due process rights and must be reversed. Cambridge’s conviction is affirmed, his sentence is reversed, and the matter is remanded to the trial court for resentencing before a different judge. See Wilson, 845 So.2d at 159; Harris, 845 So.2d at 331.

Conviction affirmed; sentence reversed; case remanded for resentencing.

NORTHCUTT and WALLACE, JJ., Concur.

      . The court in State v. Warner, 762 So.2d 507, 513 (Fla.2000), stated: "The trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party.”


text:
    Bryan HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2274.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.

      James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

Bryan Hogan appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Although Hogan challenges the denial on various grounds, we need only address Hogan’s argument that the trial court improperly denied him an opportunity to present relevant testimony at the evidentiary hearing conducted by the trial court. We conclude that this claim has merit and therefore reverse the order denying Hogan’s motion.

This case has been before this court before. In Hogan v. State, 799 So.2d 1095 (Fla. 2d DCA 2001), this court held that Hogan’s motion for postconviction- relief was timely because it contained claims trar ditionally addressed in error coram nobis and because his motion fell within the window created by Wood v. State, 750 So.2d 592 (Fla.1999). In response to the issuance of our mandate in Hogan, the trial court issued a sua sponte order requiring the State to show cause why an evidentia-ry hearing should not be held on the merits of the matter.

Subsequent to the issuance of this show cause order, an evidentiary hearing was held for the limited purpose of determining whether the doctrine of laches should be applied to Hogan’s claims. At this hearing, the State presented the testimony of several witnesses who might have had knowledge relevant to Hogan’s claims. All of the witnesses testified that the passage of time had impaired their memories to the point that they could not convey any useful information about the case.

Following the presentation of these State witnesses, Hogan sought to call two witnesses, himself and his mother. His stated purpose in calling these witnesses was in part to demonstrate that he had diligently pursued his claims. The trial court excluded this testimony on the ground that it was not relevant to the limited purpose of the hearing.

This was error. In order for the State to demonstrate that Hogan’s claims were barred by laches, the State was required to demonstrate in connection with the delay in the assertion of the claim both that there was prejudice to the State and that there was a lack of diligence on the part of the defendant. See Love v. State, 814 So.2d 475, 478 (Fla. 4th DCA 2002). Thus, testimony from Hogan’s witnesses to the effect that he had been diligent in the pursuit of his claims would have been directly relevant to the issue of laches. Even if the State established the requisite prejudice arising from the delay in the assertion of the claims, the claims would not be barred if Hogan could demonstrate that he diligently pursued them.

Because of the trial court’s improper exclusion of the testimony Hogan sought to offer on the issue of laches, we reverse the order denying Hogan’s motion and remand on that issue.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.


author: WARNER, J.

text:
    Ross LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-904.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We deny rehearing but withdraw our prior opinion and substitute the following to correct a factual error.

Ross Lawson appeals his conviction of multiple charges including burglary of a dwelling, strong arm robbery, carjacking, and felony causing bodily injury. He claims that the trial court erred in denying his attorney’s motion for continuance because of inadequate time for trial preparation. Because of his own efforts in discharging one attorney and causing another to withdraw, appellant delayed commencement of this trial for over three years. Under the circumstances presented, we conclude that the trial court did not abuse its discretion in denying the motion for continuance and affirm.

Lawson was charged with multiple criminal acts in case number 97-16344, the Whitaker case. This case was one of nineteen with which Lawson was charged after an apparent crime spree. Although charged in 1997, Lawson was not tried on any of the cases until June of 2001. This delay was the result of Lawson’s discharge or attempts to discharge the attorneys who had been assigned to represent him, and the time it took for each subsequent attorney to represent him. None of the counsel assigned to represent Lawson were found ineffective by the trial court. After the last attorney was discharged, the court refused to appoint another attorney, so Lawson chose to represent himself. A couple of months later, the last discharged attorney was appointed as stand-by counsel. Four months later, on December 8, 2000, Lawson again complained about his stand-by counsel, and the court appointed Mr. Lambidis as “one last stand-by counsel.”

At a hearing on April 27, 2001, Lawson agreed to the appointment of Lambidis as trial counsel, instead of merely stand-by counsel. Trial had already been set for the beginning of June. Three of Lawson’s cases were to be tried, the order of which had been discussed over a year previously. At docket call on June 4, 2001, the court announced the agreed order in which the three cases would be tried, estimating that each case would take no more than a day and a half. Thus, the court intended to try all three cases that week, starting with the Garvin case and then trying the Whitaker case, the case from which this appeal has been taken. Lambidis requested a continuance, asking that the three cases be tried together. The court denied the request, stating,

[t]he Court announced several weeks ago the order in which these cases would be tried. And so for the record there were three separate incidents occurring on the same day.... The Court having come this far in the last several weeks to try them separately, the Court’s decision is to proceed separately, protecting to the best of the Court’s ability the defendant’s rights to have excluded prejudicial matters that involve the other cases, rather than trying all three of them together.

After the conclusion of closing arguments in the Garvin case, Lawson himself requested that he be given time to obtain other experts and subpoena documents. The court explained that the second trial would start that day. It stated, “If I find down the road in my judgment, being fair, that it was abuse of my discretion to require a trial today, I will order a new trial.” The state attorney then suggested that they wait to begin the next trial until the Garvin jury returned a verdict, and suggested that the court might even come back in two weeks to try the case. To that suggestion, the court stated, “I’m not coming back here” due to other trial commitments. The state attorney then suggested that they just wait to see what would happen with the Garvin verdict. The court agreed.

However, after returning from recess, the court advised the parties that they would have to proceed with the Whitaker trial that day, even though the Garvin jury apparently had not yet returned a verdict. The judge explained that he was not familiar with the policies of the division in “getting justice administered properly,” and those policies apparently would require the next case to start immediately. Although the parties questioned the judge as to whether his decision was influenced -by anyone else, he insisted that this was his decision. The judge ordered that the trial on the second case would commence immediately, and reiterated his position that if he later felt that the trial should not have gone forward, he would deal with the issue at that time.

The state told the judge that during the recess, Lawson agreed to permit Lambidis to be his lawyer on other cases. Lambidis then requested a continuance in order to consolidate the remaining two cases. Lambidis argued that the cases were inextricably intertwined. He also requested a continuance to obtain an expert to assist with the defense of voluntary intoxication. The trial court again denied the request for continuance. The court ordered the parties to be prepared to start the case at 1:30 that afternoon.

When the parties returned at 1:30, Lam-bidis motioned for a continuance on the ground that “there is DNA on Ms. Whitaker’s case, and there hasn’t been anything done on the case in terms of the DNA.” Lambidis apologized to the court for failing to do any work on the DNA evidence, explaining that he probably “should have done-the DNA ... and for whatever reason, there hasn’t been anything done on the DNA, and that’s why I’m moving for this continuance.” The trial court denied the motion.

The case proceeded to trial. The victim testified that a man forced his way into her home after asking to use her phone. He threw the victim onto the dining room table. She hit his head with a glass and cut him on the arm. The man slammed her onto the floor and began kicking her, breaking three of her ribs. He then demanded the victim give him her money, jewelry, and car keys. He told her that he had a gun and motioned his hand toward his waist. The victim never saw the gun. He eventually left in the victim’s white BMW convertible. The victim later identified Lawson as the perpetrator in both a photo line-up and a live line-up. An officer testified to her pursuit of the stolen vehicle without apprehending its occupants.

Lawson was apprehended the following day. He was irate when placed into the police vehicle and attempted to exit the vehicle. The officer took him to the hospital to receive treatment for the injuries he received while trying to escape police custody.

At the hospital, the lead detective questioned Lawson after reading him his Miranda rights. In his subsequent statement, Lawson admitted that he took a white convertible, and he made a reference to “[tjhat bitch who cut my face.” He denied that he was ever carrying a gun.

The detective again questioned Lawson, after he signed a waiver of rights form, at the police station where the interview was recorded. In the interview Lawson said, “[wjhatever anybody says that I did, anything, an ID me on, I did it. I did anything and everything that anybody I.D.’s me on. It’s plain and simple. I did it. I was on crack. I-can’t remember specifics.” Lawson only vaguely remembered escaping in the BMW, explaining again that he was on crack, scared, and trying to get away.

The state also offered DNA evidence connecting Lawson to the crime scene. Two DNA tests were run, one much more precise than the other. Both times the DNA evidence matched Lawson’s sample. The expert testified that the second test demonstrated that the chances of any other unrelated Caucasian having the same DNA was one in 813 quadrillion. Lawson objected to all of the DNA testimony on the ground that he had not had enough time to prepare for the DNA evidence.

Lawson presented no evidence in his case. Prior to resting, Lambidis proffered that had the court granted the motion to appoint an expert pertaining to voluntary intoxication, that person would be able to explain to the jury that the acts involved were brought on by severe crack and alcohol problems, which testimony would assist in the voluntary intoxication defense that Lawson did not have the ability to form the requisite intent to commit these crimes. The court agreed to instruct the jury on voluntary intoxication, and Lambi-dis argued that defense to the jury in closing. The jury returned a verdict on all charges except a kidnapping charge. He was sentenced and filed this appeal.

Lawson argues on appeal that the trial court erred in denying his motion for continuance because his counsel had inadequate time to prepare for trial. Even though Lambidis contended at trial that he was unprepared because he needed to review the DNA evidence and obtain an expert on voluntary intoxication, we cannot say that the court erred in denying the motion for continuance, given the following circumstances: Lambidis was appointed stand-by counsel three and a half months prior to trial and full counsel at least a month before the start of the trial; Lawson had either discharged or caused the withdrawal of two other attorneys, causing the short time for trial preparation; Lam-bidis did not request the appointment of experts during the month prior to trial; and Lambidis did not make a request for an expert until after the court reconsidered and denied the request to delay the start of the trial until the jury came back with a verdict on the first trial.

Although we analyze whether the court abused its discretion in precluding adequate time to prepare this case, we view what unfolded at trial considerably differently than Lawson. After discharging one attorney and causing another to withdraw over a period in excess of three years, Lawson represented himself with stand-by counsel. Then, a month before trial, Lawson changed his mind again and agreed to allow Lambidis to represent him at trial. No mention was made of a continuance of the already set trials.

At the commencement of the trial period in which the court ruled that three cases against Lawson would be tried, Lambidis moved for a continuance so that the cases could be consolidated. He did not complain that he was unprepared to go to trial or needed additional witnesses. Instead, he thought the cases were inextricably intertwined. The court, on the other hand, determined that they should be tried separately to avoid prejudice.

The announced plan for the trial docket was that the Whitaker trial, the present case, would be tried immediately after the conclusion of the first case, Garvin. After the conclusion of the Garvin case, but before the jury returned a verdict, the state suggested waiting to start the second trial until the jury returned a verdict. While Lawson himself was requesting more time for preparation, the court clearly informed Lawson that the second trial would go forward. The court acceded to the state’s request to wait until the Garvin jury came back to discuss how to proceed with the second case. However, after a short recess, the court denied this motion based on the policies of the division. Thus, the motion the court denied was the suggestion by the state that the start of this case wait until the jury came back, a short continuance in any event.

At that point, both the state and Lambidis moved for a continuance to consolidate the remaining two cases to be tried, a motion which the court had denied at the beginning of the trial period. This request also was not based upon the inadequacy of trial preparation time. Lambidis also moved for a continuance to get an expert on voluntary intoxication, a defense Lambidis had known about from the commencement of his representation because he had moved to suppress Lawson’s confession on that basis. The court does not abuse its discretion in denying a continuance based upon an “eleventh hour request” for an expert witness where such request could have been made earlier. See Davis v. State, 704 So.2d 681, 683 (Fla. 1st DCA 1997) (finding trial court did not abuse its discretion in denying motion for continuance in order for defendant to secure mental health expert when motion was made at the commencement of the final hearing for violation of probation).

Just before voir dire commenced, Lam-bidis made a final request for continuance because he had not prepared for the DNA evidence in the second case. He admitted that he probably should háve looked at it, and, in what we think is a reference to the preceding three years of delay, he said “there hasn’t been anything done on the DNA, and that’s why I’m moving for this continuance.” The record reveals that the subject of DNA evidence was discussed multiple times, and the court had even authorized the employment of DNA experts for the defense on at least two occasions. Why no experts were hired is not entirely clear from the record, but undoubtedly the discharge and/or withdrawal of Lawson’s trial counsel had something to do with the lack of focus in this case.

Lawson frames the issue as the trial court’s abuse of discretion in denying his motion for continuance to provide adequate time to prepare for trial. In D.N. v. State, 855 So.2d 258 (Fla. 4th DCA 2003), we held that the trial court erred in denying defense counsel’s motion for continuance of a probation violation proceeding on the ground that the defense was not prepared to go forward where, through no fault of the defendant, the public defender appearing for trial had only been given the case the day before and needed to secure the testimony of two witnesses who were unavailable for trial. We said,

The granting or denial of a motion for continuance is within the trial court’s discretion. See Bouie v. State, 559 So.2d 1113 (Fla.1990). Denial of a motion for continuance “should not be reversed by an appellate court unless there has been a palpable abuse of this judicial discretion” that “clearly and affirmatively” appears in the record.”

855 So.2d at 260 (quoting Magill v. State, 386 So.2d 1188, 1189 (Fla.1980)). We cited to McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986), wherein the court affirmed the denial of a motion for continuance in order to prepare for trial where the defendant retained private counsel only a few days prior to the start of trial. The defendant contended that he had a right to be represented by counsel of his choice. The court stated,

While criminal defendants have the right to a reasonable opportunity to select and be represented by chosen counsel, and the right to a preparation period sufficient to assure at least a minimal quality of counsel, the right is not absolute but at some point must bend before countervailing interests involving effective administration of the courts. Thus; when a defendant asks for a continuance on the eve of trial in order to allow time for recently retained counsel to prepare, the court- must balance that request against many other factors....

504 So.2d at 1282 (citations omitted, emphasis added). It then listed seven factors, which we adopted in D.N., as appropriate guides to determining whether denial of a continuance due to lack of adequate time to prepare a defense was error:

1) the time available for preparation,
2) the likelihood of prejudice from the denial,
3) the defendant’s role in shortening preparation time,
4) the complexity of the case,
5) the availability of discovery,
6) the adequacy of counsel actually provided and
7) the skill and experience of chosen counsel and his pre-retention experience with either the defendant or the alleged crime.

Id. (citing U.S. v. Uptain, 531 F.2d 1281, 1286-87 (5th Cir.1976)).

We also relied on McKay in concluding that the defendant was not entitled to a continuance in Langon v. State, 791 So.2d 1105 (Fla. 4th DCA 1999). Much like this case, the defendant Langon continually disrupted the orderly processing of his case by discharging multiple attorneys. After discharging the last attorney and obtaining the trial court’s permission for Langon to represent himself, Langon again moved for a continuance, even though the trial court told him well ahead of time that no further continuances would be permitted. On appeal, we agreed with McKay that a defendant’s right to reasonable time for trial preparation may bend to the efficient administration of justice, particularly where a defendant’s role in determining the remaining time available for preparation was great. 791 So.2d at 1113. Where Langon, who was represented by effective counsel, very shortly before trial decided to represent himself, he could not then obtain continuances to delay the start of trial and thwart the orderly administration of justice.

We conclude that the trial court did not abuse its discretion. This case had been pending for nearly four years at the time of trial. Had Lawson not repeatedly discharged his prior attorneys or caused them to withdraw, none of whom the court found were rendering ineffective assistance, there would have been ample time to prepare. Lawson played a prominent role in shortening the preparation time for trial. When Lambidis changed from stand-by counsel to trial counsel, a month remained to get ready for trial. Just as in Langon, we cannot conclude that Lawson should be able to manipulate the judicial system and prevent his case from reaching trial. Just as in McKay and Langon, Lawson reached the point where his right to adequate time for preparation for trial is counterbalanced by the right to the effective administration of justice. His own actions were responsible for the lack of adequate preparation time, if any. Although Lawson argues that he was prejudiced by the denial of the continuance, neither D.N. nor McKay require that a court grant a continuance where a defendant who has himself caused the shortened trial preparation time through his manipulation of the judicial system later claims he is unprepared to go to trial.

While the court did consider the policies of the criminal division in denying the motion to continue the start of the second case until after the jury came back with a verdict in the Garvin case, we do not see how this is inappropriate nor how the denial of this short continuance prejudiced Lawson. Certainly, even if the trial court had allowed this short continuance, there would not have been time to secure other experts.

D.N. states that the appellate court must find a “palpable” abuse of discretion that clearly and affirmatively appears in the record. We find no such abuse of discretion here.

We summarily dispose of the remaining points raised by Lawson. He first contends the court’s denial of his motion to suppress pretrial identification of him as legally insufficient was error. Although the court was incorrect that the motion was legally insufficient, the error was harmless. We do not know whether the motion to suppress would have been granted on the merits had an evidentiary hearing been held, but even if it had, the improper admission of the pretrial identification would have been harmless given the very strong DNA evidence connecting Lawson with the crimes. See Ferreira v. State, 692 So.2d 264, 265-66 (Fla. 5th DCA 1997).

Lawson also claims that the court erred in allowing the state to exercise a racially motivated peremptory challenge against a prospective juror. He maintains that the reason the state gave for exercising the challenge was unreasonable. While we disagree that the explanation was not reasonable, the court’s focus in analyzing the proffered explanation-for the strike is not reasonableness, but genuineness. Melbourne v. State, 679 So.2d 759, 764 (Fla.1996). The court did not err in its ruling.

In another issue on appeal, Lawson contends that the court erred in denying his motion to suppress his confession because it was involuntary due to his intoxication. However, as explained by the supreme court in Thomas v. State, 456 So.2d 454 (Fla.1984), “ ‘The rule of law seems to be well settled that the drunken condition of an accused when making a confession, unless such drunkenness goes to the extent of mania, does not affect the admissibility in evidence of such confession, but may affect its weight and credibility with the jury.’ ” 456 So.2d at 458 (quoting Lindsey v. State, 66 Fla. 341, 63 So. 832, 833 (Fla.1913)). While testimony at the suppression hearing demonstrated that “appellant got drunk before he was taken in for questioning” by the police, the “detectives who questioned appellant testified that he did not appear intoxicated, that they advised him of his.'rights, that he intelligently waived those rights, and that he voluntarily gave the statements.” Id. The supreme court found this evidence sufficient to support the trial court’s determination that “the state had- carried its burden of showing that appellant’s confessions were freely and voluntarily given.” Id.; see also Wilson v. State, 573 So.2d 77, 79 (Fla. 2d DCA 1990). The facts are similar in Lawson’s case. Thus, the court did not err in denying the motion to suppress.

Finally, while Lawson is correct in his claim that the court erred in admitting evidence' of flight, because the flight in which he was engaged was not flight involving this crime, the error was harmless.

Affirmed.

GROSS and HAZOURI, JJ„ concur.

      . Lawson first moved to discharge attorney Carpenter but the trial court denied the motion because Lawson had failed to show she was ineffective. Carpenter later withdrew after Lawson filed a bar complaint against her, causing a conflict. Attorney Polay was appointed after Carpenter withdrew. Lawson filed a motion to discharge Polay and obtain substitute counsel, which was denied by the trial court because Lawson failed to demonstrate Polay was ineffective. Lawson discharged Polay and began to represent himself.


text:
    Jerry DOTY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-282.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

WARNER, J.

We deny the motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

Appellant was convicted of false imprisonment, violating a domestic violence injunction, and battery. He raises two claims as to his convictions, neither of which requires a reversal. As to his sentence he contends that the trial court improperly relied on charges of which he was acquitted. We hold that, given the court’s statements at sentencing, the state failed to show that the court did not rely on this information. We reverse for resentencing.

Appellant was acquitted of the most serious charges against him, including sexual battery and burglary. The trial court sentenced appellant to five years imprisonment on the false imprisonment count, one year imprisonment for violating the injunction, and one year probation on the battery count, all to run consecutively. Appellant complains that the court relied on uncharged conduct and conduct of which he was acquitted in reaching its sentencing decision.

At sentencing, appellant presented several character witnesses, and his counsel informed the court that appellant had no prior record. The victim testified about her fears and an incident in which she said appellant violated another domestic violence injunction obtained by another woman. In the pre-sentence report, a detective referred to appellant as a “serial rapist.” Appellant objected to this, as there was no evidence to support the allegation. The court did not rule on the objection. Before imposing the sentence the court said:

Well, it’s quite true that Mr. Doty has no criminal history. It’s also true that there are many people in the community that think very highly of him.
He was, of course, acquitted of the most serious charges; however, he was convicted of a felony and two other criminal offenses that I regard as serious.
And I have a distinct recollection of the testimony at trial, and you did an excellent job at that proceeding, Mr. Ra-sen. I think that might largely have resulted in the favorable verdicts on some counts the defendant received. The complainant impressed me as an entirely credible person.

The court then imposed the maximum sentence for two of the crimes, including the felony.

It is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing a sentence. See Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Evans v. State, 816 So.2d 742, 744 (Fla. 4th DCA 2002); Epprecht v. State, 488 So.2d 129, 131 (Fla. 3d DCA 1986). In Epprecht, the trial judge made several statements indicating that he believed that the defendant had committed many other offenses and complimented the defense attorney on his skill in obtaining an acquittal for the defendant in another case in which the judge believed the defendant was guilty. The Epprecht court said,

Because we are “not at liberty to assume that items given such emphasis by the sentencing court, did not influence the sentence,” Townsend v. Burke, 334 U.S. [736, 740, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948)], it befalls the State, as we have said, to convince us that these items played no part in the sentence imposed in the present case.

488 So.2d at 131. The court reversed the defendant’s sentence, concluding that it could not find that the improper considerations played no part in the judge’s decision. Id.

We followed Epprecht in Seays v. State, 789 So.2d 1209, 1210 (Fla. 4th DCA 2001), in holding that the state had the burden of showing that the trial court did not rely on improper factors in sentencing. Concluding that it did not meet that burden, we reversed. Id.

Moreover, in Reese v. State, 639 So.2d 1067, 1068 (Fla. 4th DCA 1994), we held that “unsubstantiated allegations of misconduct may not be considered by a trial judge at a criminal sentencing hearing and to do so violates fundamental due process.” The victim’s testimony regarding appellant’s violation of another domestic violence injunction obtained by a different woman was the type of allegation that the court should not have permitted in evidence.

Here, the state has failed to show that the court did not rely on the charges of which appellant was acquitted in meting out the most severe sentences available on two of the counts, and the court heard evidence of unsubstantiated allegations of misconduct. The judge mentioned that appellant was acquitted of the most serious charges, but he noted that he had a distinct recollection of the trial testimony, and defense counsel’s “excellent” representation “might largely have resulted in the favorable verdicts on some counts the defendant received.” He then stated that the victim was an entirely credible person. It appears to us that this can be nothing more than a rejection of the jury’s verdict on the sexual battery and burglary charges because the victim’s testimony would have supported both charges. Furthermore, the judge’s comments about the skill of defense counsel in getting appellant acquitted on those counts is nearly identical to the suspect comments of the trial judge in Epprecht. Because we cannot say that the court did not rely on these impermissible factors in sentencing appellant, we must reverse.

Because appellant must be resen-tenced, we address his double jeopardy claim that he cannot be sentenced on both the simple battery count and the violation of an injunction for domestic violence count. He cites to Young v. State, 827 So.2d 1075, 1077-78 (Fla. 5th DCA 2002), which held that the crime of battery was subsumed within the crime of violation of an injunction for repeat domestic violence pursuant to section 784.047, and convicting the defendant of both offenses was a violation of the double jeopardy clause. Here, appellant was charged with violating a domestic violence injunction pursuant to section 741.31, Florida Statutes (2000); however, the difference between the statutes for double jeopardy analysis is insubstantial. Under both statutes, the injunction is violated by simple battery.

Section 775.021(4), Florida Statutes (2000), incorporates the Blockburger test for determining whether the legislature intended that a court can impose multiple punishments for offenses arising from the same criminal episode. Section 775.021(4) provides:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

One of the ways in which an injunction for protection against domestic violence may be violated is by committing an act of domestic violence against the petitioner, § 741.31(4)(a)3., which includes the commission of a battery. § 741.28(1), Fla. Stat. (2000). Therefore, all of the statutory elements of battery are contained within the offense of violating a domestic violence injunction. It is thus subsumed within the greater offense. See United States v. Dixon, 509 U.S. 688, 705, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Therefore, the conviction and sentencing of appellant on both the battery and violation of domestic injunction counts is a violation of the double jeopardy clause.

As to his convictions, appellant contends that the court erred in refusing to allow a witness to testify to what appellant claims was the victim’s prior inconsistent statement to some of her trial testimony. The statement involved a collateral matter not material to the issues at trial, and the trial court did not err in refusing to admit it. See Caruso v. State, 645 So.2d 389, 394 (Fla.1994) (noting that when a witness is cross-examined concerning a collateral or irrelevant matter, cross-examiner must “take” the answer as given and may not subsequently impeach the witness by introducing extrinsic evidence to contradict the witness). He also complains that the trial court improperly interjected itself into the trial of the case. The court merely said, “Excuse me,” as the prosecutor rose to object, in order to stop a witness from answering an irrelevant question posed by defense counsel. The court did not depart from any appearance of impartiality.

We affirm appellant’s convictions. In accordance with Epprecht and Seays, we reverse and remand for resentencing in front of a different judge pursuant to this opinion, noting that sentencing on the battery conviction is barred by the double jeopardy clause.

KLEIN and HAZOURI, JJ., concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


text:
    In re Judge Alan J. GREEN.
    No. 2004-O-2452.
    Supreme Court of Louisiana.
    Oct. 11, 2004.
   ORDER

Considering the motion for interim disqualification filed by Judge Alan J. Green, and the concurrence thereto by the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Judge Alan J. Green, Judge of the 24th Judicial District Court, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately-

/s/ Pascal F. Calogero

Justice, Supreme Court of Louisiana