author: LEWIS, J.

text:
    Albert TYUS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0343.
    District Court of Appeal of Florida, First District.
    May 20, 2003.

      Nancy A. Daniels, Public Defender; Leonard Holton, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Appellant, Albert Tyus, appeals from his conviction for manslaughter. Appellant contends that his act of burglarizing an elderly woman’s residence did not constitute the legal cause of the resident’s death by fatal cardiac dysrhythmia and that the trial court therefore erred in denying his Motion for Judgment of Acquittal. Because the State presented legally sufficient evidence during the trial to support each element of manslaughter, including the legal causation element, we affirm appellant’s conviction for manslaughter. We affirm as to appellant’s second issue on appeal without further discussion.

On February 6, 2001, appellant walked to the front of the residence of an elderly woman (“victim”), picked up a chair from the front porch, and broke the window panes in the front door. Upon breaking the glass, appellant saw the victim fall as she was walking towards her back door and heard her scream. Appellant proceeded through the front door, walked to the victim’s purse, and took twenty-five dollars and the victim’s car keys from inside the purse. Appellant then drove to a separate residence to purchase crack cocaine. Thereafter, appellant returned the victim’s vehicle to her garage, walked through the back door of the residence, placed the keys back into the victim’s purse, and tried to revive the victim to no avail.

After matching the DNA profile of the blood found on the front door curtains and inside the vehicle to that of appellant’s DNA profile and after obtaining appellant’s confession, the State charged appellant with first-degree felony murder, burglary of a dwelling, and grand theft of a motor vehicle. Appellant pled not guilty as to the felony-murder and grand theft counts and nolo contendere as to the burglary count. During the trial, the victim’s internist opined that the victim died of an arrhythmia related to heart disease. According to the internist, the stress and excitement brought on by being surprised by an intruder could have caused the condition. The forensic pathologist who conducted the victim’s autopsy opined that the cause of the victim’s death was atheros-clerotic and hypertensive heart disease with the contributing factor of stress due to a burglary that caused a fatal cardiac dysrhythmia. The pathologist further testified that the manner of the victim’s death was a homicide; the victim suffered from a natural condition aggravated by stresses that were due to an unnatural event, the burglary, which led to an unnatural death.

After the State rested its case, appellant moved for a judgment of acquittal as to the felony murder and grand theft counts. Appellant also asserted that the State had not proven the elements of second-degree murder or manslaughter, two lesser included offenses of first-degree felony murder. The trial court denied appellant’s motion. After electing not to call any witnesses, appellant timely renewed his motion, which the trial court again denied. Following jury deliberations, the jury found appellant guilty of manslaughter and grand theft. The trial court sentenced appellant to consecutive sentences of fifteen years on the manslaughter and burglary counts and five years on the grand theft count. This appeal followed.

Appellant asserts that the trial court erred in denying his Motion for Judgment of Acquittal as the State did not present legally sufficient evidence to prove that appellant’s act of burglarizing the victim’s home constituted the legal cause of the victim’s death. We review a trial court’s ruling on a motion for judgment of acquittal de novo. See State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999). In reviewing an order denying a motion for judgment of acquittal, we must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (citations omitted). If the State has presented evidence to support every element of a crime, then a motion for judgment of acquittal must be denied and affirmed on appeal. Williams, 742 So.2d at 511 (citations omitted).

The Legislature has defined the crime of manslaughter as:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 782.07(1), Fla. Stat. (2000). The two affirmative elements of manslaughter are the killing and a causative link between the death and the act, procurement, or culpable negligence of the defendant. Penton v. State, 548 So.2d 273, 274 (Fla. 1st DCA 1989) (citing Cunningham v. State, 385 So.2d 721, 722 (Fla. 3d DCA 1980)). In addition to establishing causation in fact, the State must prove that the defendant’s conduct was the legal or proximate cause of the harm at issue. Eversley v. State, 748 So.2d 963, 966 (Fla.1999). The two questions that must be considered in establishing legal causation are: (1) whether the prohibited result of the defendant’s conduct is beyond the scope of any fair assessment of the danger created by the defendant’s conduct and (2) whether it would be otherwise unjust, based on fairness and policy considerations, to hold the defendant criminally responsible for the prohibited result. Id. Expert medical testimony as to the likelihood or probability of a causal connection between the defendant’s act and the victim’s death is generally sufficient to establish causation. Penton, 548 So.2d at 274.

Here, we agree with the trial court that the evidence was legally sufficient to establish a jury question as to legal causation. See Phillips v. State, 289 So.2d 447, 449 (Fla. 2d DCA 1974). In doing so, we note that courts in other jurisdictions have recognized that, under circumstances similar to the instant case, the causal relationship between the defendant’s felonious criminal conduct and the victim’s fatal heart attack was not too remote to form a basis for legal causation and, thus, criminal responsibility. For instance, in State v. Losey, 23 Ohio App.3d 93, 491 N.E.2d 379, 380 (1985), the appellant was convicted of involuntary manslaughter and aggravated burglary after he forcibly opened the elderly victim’s front door at 11:00 p.m., after receiving no response from knocking, and attempted to'remove a bicycle. Upon hearing an approaching vehicle, the appellant placed the bicycle beside the front door and departed, leaving the front door open. Id. Both the victim and her son proceeded to the living room and noticed the open front door. Id. The victim subsequently collapsed and later died of an acute coronary thrombosis precipitated by the appellant’s act of burglarizing the victim’s residence. Id. at 383. In affirming the judgment, the Ohio Tenth District Court of Appeals concluded that the causal relationship between the appellant’s criminal conduct and the victim’s death was not too improbable, remote, or speculative to form a basis for criminal responsibility. Id.; see also State v. Spates, 176 Conn. 227, 405 A.2d 656, 660 (1978) (finding no error in the trial court’s instruction on the meaning of proximate cause and disagreeing with the appellant that the victim’s heart attack, which was caused by the stress of the appellant’s act of burglarizing the victim’s home, could not, as a matter of law, be found to have caused the victim’s death).

As in Losey, we conclude that the relationship between appellant’s criminal conduct and the victim’s death was not too improbable, remote, or speculative to form a basis for criminal responsibility. In doing so, we distinguish this Court’s previous decision in Penton and the Fifth District’s decision in Todd v. State, 594 So.2d 802 (Fla. 5th DCA 1992). In both of these cases, the victims suffered an unintended death after pursuing the defendants who had been engaged in an unlawful act, while in the instant case, the victim suffered an unintended death, not as a result of pursuing appellant as he burglarized her residence, but as a result of the stress caused by the fright or horror at witnessing appellant’s unlawful conduct.

In Penton, this Court, in holding that the evidence presented was insufficient to establish the causation element, noted the equivocal nature of the doctor’s testimony, in which the doctor testified that the case was complex because the victim did not have any one condition that he could say within reasonable medical certainty was the cause of the death. 548 So.2d at 274. Similarly, in Todd, the Fifth District held that it could not be said that the appellant’s petty theft was the legal cause of the victim’s death. 594 So.2d at 806. There, the State’s traverse specifically asserted that it was the pursuit that caused the victim’s fatal heart attack. Id. The Fifth District noted that the case was not one in which it had been asserted that the victim died from fright or horror at witnessing the crime. Id.

In contrast to Penton, here, there was nothing equivocal about the expert medical testimony. Moreover, unlike the assertions made in Todd, in the instant case, the State contended, and the expert witnesses so testified, that the victim’s cardiac condition was brought about by appellant’s unlawful activity. As such, we find both Penton and Todd to be distinguishable from the facts of this case.

Furthermore, it is not unjust in the instant case to hold appellant criminally liable for the victim’s death. Cf. Hodges v. State, 661 So.2d 107, 110 (Fla. 3d DCA 1995) (reversing the trial court’s denial of the appellant’s motion for judgment of acquittal as it would be fundamentally unfair to impose criminal responsibility upon the appellant for the independent, irresponsible acts of another); Velazquez v. State, 561 So.2d 347, 354 (Fla. 3d DCA 1990) (holding that it was unfair, unjust, and just plain wrong to say that the appellant was criminally responsible for the victim’s death as no one forced the victim to participate in the fatal drag race). Unlike Hodges, in the instant case, the victim’s death was not caused by the independent, irresponsible acts of anyone other than appellant. Nor did the victim choose to place herself in a dangerous situation as did the victim in Velazquez. Therefore, because the State presented legally sufficient evidence to support every element of the crime of manslaughter, the trial court did not err in denying appellant’s Motion for Judgment of Acquittal. Accordingly, we affirm appellant’s conviction for manslaughter.

AFFIRMED.

VAN NORTWICK and HAWKES, JJ., CONCUR.

      . At the time of the offense, involuntary manslaughter was defined as:
      (A) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a felony-
      (B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor.
      (C)Whoever violates this section is guilty of involuntary manslaughter.
      Ohio Rev.Code Ann. § 2903.04.

      . At the time of the offense, a person was guilty of manslaughter in the first degree when “under circumstances evincing an extreme indifference to human life, he recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and thereby cause[d] the death of another person.” Conn. Gen.Stat. § 53a-55(a)(3).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cary SNELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1799.
    District Court of Appeal of Florida, First District.
    May 20, 2003.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Cary Snell, challenges the sentence imposed when the trial court revoked his probation, and the State has properly conceded error. Snell’s original sentence — 24 months in prison, suspended, and 30 months of probation — was a “true split sentence.” See Poore v. State, 531 So.2d 161, 164 (Fla.1988); Evans v. State, 730 So.2d 768 (Fla. 1st DCA 1999). “[T]he imposition of a true split sentence ... precludes the trial court from placing a defendant on probation for a period of time that exceeds the unserved portion of a suspended sentence.” Evans, 730 So.2d at 769. Accordingly, the maximum sentence available upon appellant’s violation of probation was “the maximum term of the suspended jail sentence.” Id.

We REVERSE and REMAND for further proceedings consistent with this opinion. As in Evans, defendant need not be present for resentencing.

KAHN, VAN NORTWICK, and BROWNING, JJ., CONCUR.


author: BROWNING, J.

text:
    M.S., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3581.
    District Court of Appeal of Florida, First District.
    May 20, 2003.

      Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Janelle C. Gillaspie, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant, a juvenile, appeals from his disposition order of level ten maximum risk residential placement. We conclude that Appellant should not have received this disposition for his misdemeanor offenses, and reverse and remand for resen-tencing.

The trial court entered a single disposition order committing Appellant to maximum residential commitment until the age of 19 for the felony of carrying a concealed weapon, the misdemeanor of a firearm by a minor, and the misdemeanor of giving a false name or identification to an officer. The trial court entered another disposition order committing Appellant to maximum commitment until the age óf 19 for the misdemeanor of criminal mischief. The trial court erred in sentencing Appellant to level ten commitment for the misdemeanors because they are not ranked at an offense severity level of seven or higher, and Appellant was not transferred from a moderate-risk or high-risk residential commitment placement. §§ 985.313, 921.0022, Fla. Stat. (2002). The commitment was proper for the felony offense, even though it is not an enumerated felony in section 985.313(1), Florida Statutes, because Appellant had previously been committed three or more times to a delinquency commitment program. See § 985.313(2), Fla. Stat. (2000).

Also, as the state concedes, the trial court must enter a separate disposition order on each offense. See D.L.J. v. State, 765 So.2d 740 (Fla. 1st DCA 2000). Thus, on remand, the trial court shall enter separate disposition orders for each offense.

Accordingly, we REVERSE the disposition order on the misdemeanors in lower court case numbers 02-460 and 02-908, and REMAND for resentencing on those convictions and for the trial court to enter separate disposition orders for each offense.

ALLEN, C.J. and WEBSTER, JJ„ CONCUR.


author: KELLY, Judge.

text:
    George CROWELL, M.D., and Unicom Anesthesia Associates, Appellants, v. Barry KAUFMANN, M.D., Jennifer Williams, as Personal Representative of the Estate of Grady Williams, and University Community Hospital, Appellees.
    No. 2D02-621.
    District Court of Appeal of Florida, Second District.
    May 21, 2003.
    Thomas Saieva of Saieva, Rousselle and Stine, P.A., Tampa, for Appellants.
    John W. Boult of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Appellee Barry Kaufmann, M.D.
    No appearance for Appellees Jennifer Williams and University Community Hospital.
   KELLY, Judge.

George Crowell, M.D., and Unicom Anesthesia Associates, defendants in this medical malpractice case (collectively “Dr. Crowell”), appeal from a final summary judgment entered in favor of a codefend-ant, Barry Kaufmann, M.D. Because the trial court abused its discretion when it denied Dr. Crowell’s motion to continue the hearing on the motion for summary judgment, we reverse.

Appellee Jennifer Williams sued Dr. Crowell, an anesthesiologist; Unicom Anesthesia; Dr. Barry Kaufmann, a surgeon; and University Community Hospital for medical malpractice. Approximately six months after Ms. Williams filed her complaint, Dr. Kaufmann moved for final summary judgment. Neither Ms. Williams nor the hospital did anything to oppose the motion. In fact, Ms. Williams took the position that she wanted Dr. Kaufmann out of the case so she could make a stronger case against the hospital. To protect his ability to include Dr. Kaufmann as a Fabre defendant on the verdict form, Dr. Crowell objected to the motion for summary judgment on the ground that the affidavits of Dr. Kauffman and his expert were conclusory and, therefore, insufficient to meet the burden of establishing an absence of genuine issues of material fact.

In the alternative, Dr. Crowell sought a continuance because discovery was not complete. Dr. Crowell’s motion was accompanied by an affidavit from his attorney verifying that Ms. Williams had yet to answer Dr. Crowell’s interrogatories, that she had not identified experts, that Dr. Crowell had not had the opportunity to depose either Ms. Williams’ or Dr. Kauff-man’s experts, that discovery depositions of key fact witnesses from the hospital had not been taken, and that discovery of hospital policies had not been accomplished. As of the date of the hearing on the motion for summary judgment, the trial court had not provided a date for disclosure of experts nor had Ms. Williams answered Dr. Crowell’s interrogatories or identified her experts. Nevertheless, at the summary judgment hearing, the trial court rejected Dr. Crowell’s request to continue the hearing and granted the motion for summary judgment.

In this appeal, Dr. Crowell first contends that the summary judgment was erroneous because Dr. Kaufmann’s supporting affidavits were inadequate. He also contends that the trial court abused its discretion when it denied his motion to continue the hearing. Dr. Kaufmann contends that Dr. Crowell had no standing to oppose the motion for summary judgment and that he has no standing to bring this appeal. He also contends that the trial court properly entered summary judgment in his favor. We need not address Dr. Crowell’s argument that Dr. Kaufmann’s affidavits were insufficient because we agree with his contention that the trial court abused its discretion when it refused to continue the summary judgment hearing.

Dr. Crowell, as codefendant in the trial court, has standing to appeal a summary judgment which exonerates his codefend-ant from liability. See Holton v. H.J. Wilson Co., 482 So.2d 341 (Fla.1986); Cold Storage Cafe, Inc. v. Barone, 779 So.2d 371 (Fla. 2d DCA 2000). Dr. Kaufmann argues that this principle applies only when a codefendant is seeking to protect his statutory right to contribution under section 768.31, Florida Statutes (2000), and not when a defendant merely seeks to preserve his ability to include a codefend-ant as a Fabre defendant on the verdict form.

If a defendant wants a Fabre defendant on the verdict form, the defendant must ensure that there is sufficient evidence in the record from which the jury can find that the Fabre defendant was at fault. If there is no such evidence, the Fabre defendant cannot be placed on the verdict form. W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 746 (Fla. 2d DCA 1994). In this case, the summary judgment in favor of Dr. Kaufmann exonerates him from fault. Because the trial court determined as a matter of law that Dr. Kaufmann was not at fault, Dr. Crowell would not have been entitled to place him on the verdict form. See S. Bell Tel. & Tel. Co. v. Dept. of Transp., 668 So.2d 1039 (Fla. 3d DCA 1996); cf. Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318 (Fla. 1st DCA 2002). Accordingly, Dr. Crowell had standing to oppose Dr. Kaufmann’s motion for summary judgment and has standing to bring this appeal. See S. Bell, 668 So.2d at 1041.

The trial court gave no indication why it denied Dr. Crowell’s motion to continue the summary judgment hearing, or for that matter, why it granted the summary judgment. We have examined the record and can find no basis upon which to affirm the trial court’s denial of Dr. Cro-well’s motion to continue. Dr. Crowell was entitled to have an opportunity to oppose the summary judgment motion. He properly sought to continue the hearing so that he could complete discovery that was material to the merits of the motion. Generally, it is an abuse of discretion for a trial court to grant summary judgment where the opposing party has not had an opportunity to complete discovery. Brandauer v. Publix Super Markets, Inc., 657 So.2d 932 (Fla. 2d DCA 1995). Under the circumstances presented in this case, entry of summary judgment was premature. Accordingly, we reverse the summary judgment in favor of Dr. Kaufmann and remand for further proceedings.

Reversed and remanded.

CASANUEVA and DAVIS, JJ., Concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from on other grounds, Wells v. Tallahassee Mem. Reg’l Med. Ctr., Inc., 659 So.2d 249 (Fla.1995).


author: FULMER, Judge.

text:
    STATE of Florida, Appellant, v. Roxanna L. McCABE, Appellee.
    No. 2D02-2880.
    District Court of Appeal of Florida, Second District.
    May 21, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   FULMER, Judge.

The State appeals from an order granting Roxanna McCabe’s motion to suppress evidence. Because the trial court misapplied the law to the facts of this case, we reverse the trial court’s order and remand for further proceedings.

McCabe was charged by information with possession of alprazolam, a controlled substance, and driving under the influence (DUI). McCabe filed a motion to suppress evidence, asserting that the charges arose out of a traffic stop of McCabe’s vehicle and the officer had no probable cause to stop the vehicle. After a hearing, the trial court entered an order granting the motion to suppress.

Officer John McNeil was the sole witness presented at the hearing. McNeil was a certified radar operator and was assigned to a DUI-detection traffic unit. The officer had made approximately 350 traffic stops for DUI in the prior three years. On January 8, 2002, he was on patrol looking for impaired drivers and speeders. He was in an unmarked cruiser monitoring the speed of the car in front of him when McCabe’s car drove past him. The posted speed limit was forty miles per hour. The officer determined with his radar unit that McCabe’s vehicle was traveling at forty-seven miles per hour.

The officer elected not to stop McCabe’s vehicle immediately. Instead, he continued to monitor her car and did not see any other traffic infractions. He testified, “I don’t always stop people for seven miles over the speed limit, but I was looking for other signs to give me more indications of a possibly impaired driver ....” As he was monitoring the car, McCabe pulled off the road into a shopping center. The officer walked up to her vehicle and asked McCabe for her driver’s license. Upon contact with McCabe, the officer suspected that she was impaired based on her physical appearance, and he began a DUI investigation, which led to McCabe’s arrest on the present charges.

In its order granting the motion to sup- ’ press, the trial court wrote:

1. The police officer did not have probable cause to stop the Defendant’s vehicle. Although the Defendant, according to the radar unit, was seven miles over the speed limit, the officer elected not to apprehend the Defendant for speeding but rather waited while she drove eight blocks.
2. The Defendant was not weaving, nor was there any indication that she was having difficulty with the vehicle to justify a stop.
3. The Court finds that the police officer did not stop the Defendant for speeding but rather wanted to stop her to conduct an investigation with no founded suspicion. See Popple v. State, 626 So.2d 185 (Fla.1993); Davis v. State, 695 So.2d 836 (Fla. 2d DCA 1997); and McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986).

A ruling on a motion to suppress presents a mixed question of law and fact. Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Deference is given to the trial court’s factual findings, but the application of the law to the facts is reviewed de novo. Id. at 699, 116 S.Ct. 1657. In this case, the State argues that the trial court erred in concluding that there was no probable cause for the stop because Officer McNeil observed the speeding infraction and he was, therefore, legally entitled ■ to stop McCabe’s vehicle on that basis. We agree.

The trial court misapplied the law to the facts of this case because it used a subjective intent standard to reach the conclusion that the officer made the stop for an improper purpose, i.e., to investigate McCabe for DUI. In Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court stated that “[sjubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” See also Holland v. State, 696 So.2d 757 (Fla.1997) (overruling reasonable officer test and applying objective test of Whren). Thus, under Whren, it is irrelevant that the officer’s purpose in stopping McCabe was to investigate his unfounded suspicion that she was under the influence. The speeding infraction that the officer witnessed provided probable cause for the stop. See State v. Snead, 707 So.2d 769, 770 (Fla. 2d DCA 1998) (reversing trial court’s order suppressing evidence, which was based on finding that stop was pretextual, because officer had probable cause to make stop based on observed traffic infractions). Accordingly, the trial court erred in granting the motion to suppress.

Reversed and remanded.

CASANUEVA and COVINGTON, JJ., concur.


author: COVINGTON, Judge.

text:
    Dusty Dale HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-823.
    District Court of Appeal of Florida, Second District.
    May 21, 2003.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   COVINGTON, Judge.

Dusty Dale Harris ’is appealing his convictions for burglary and grand theft. He argues that his sentences were presumptively vindictive and that the record does not refute this presumption. We agree; therefore, we reverse and remand for re-sentencing.

Harris was charged with burglary of a dwelling and grand theft. Prior to trial, he was offered a plea package that would have resolved these charges, as well as two violations of probation cases. The offer was for a prison term of fifty-nine months. Harris rejected the offer and proceeded to trial. He was convicted and received concurrent prison sentences of eight years on the burglary conviction and five years on the grand theft conviction.

“[A] defendant who is convicted after rejecting a plea offer has no right to insist on being sentenced in accordance with the offer.” McDonald v. State, 751 So.2d 56, 58 (Fla. 2d DCA 1999) (citing Mitchell v. State, 521 So.2d 185 (Fla. 4th DCA 1988)). This court has noted that “[sjtanding alone, the imposition of a longer sentence than the one contemplated in the failed plea negotiation does not establish vindictiveness.” Id. at 58-59. Normally, the defendant has the burden to prove actual vindictiveness. Id. at 59. However, “when the judge has been involved in the plea negotiation and then later imposes a harsher sentence, the sentence is presumed to be vindictive. This presumption may be overcome only if the record affirmatively demonstrates that the defendant’s insistence on a trial was given no consideration in sentencing.” Id.

Here, the record indicates that the trial judge was involved in the plea negotiation. The State concedes this point. The trial judge told Harris, in part, that:

30 years is a very, very long time.
All of your young adult life, a time where most people should be working, starting families, doing all that sort of thing, is going to be spent in the Department of Corrections....
... I want to make sure that you really open your heart up and you talk to [defense counsel] because we can do 59 months today, but if the jury finds you guilty, that’s off the table, and ... I alone make the decision and there is no sentencing guideline restriction or anything else that keeps me from sentencing you to the maximum on each charge
Now, 59 months, that’s no cake walk, but there is a light at the end of the tunnel....
Thirty years at age 18—I remember when I was 18, you can’t contemplate what it’s going to be like to be 43 or 45 or 48 years old, that seems like that’s the next century sometime, it’s a long time, one day at that time, one month at a time.

Because the trial judge was involved in the plea negotiation, Harris’s sentences are presumed vindictive, unless the record affirmatively demonstrates that his decision to proceed with the trial was given no consideration at sentencing. McDonald, 751 So.2d at 59. Here, the record does not affirmatively demonstrate that the trial judge intended to punish Harris for rejecting the plea offer. Id. at 59. However, as this court has noted, “That is not the test.” Id. The use of the term “vindictive” 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.” Id. (quoting Frazier v. State, 467 So.2d 447, 449 n. 4 (Fla. 3d DCA 1985)) (alteration in original).

We conclude that the record does not refute the presumption that Harris’s sentences were vindictive. The record does not affirmatively demonstrate that Harris’s rejection of the plea offer did not influence the trial court’s exercise of discretion during sentencing. Id. at 59. The record reflects that the trial court was aware of Harris’s record prior to trial. The court referred to his previous violations of probation, as well as his previous juvenile record, while discussing the State’s plea offer. Thus, as in McDonald, there is nothing in the record to refute the presumption of vindictiveness.

“[I]n cases where an unrebutted presumption of judicial vindictiveness arises ... the' appropriate remedy is re-sentencing before a different judge.” Wilson v. State, 845 So.2d 142, 159 (Fla.2003). “The trial judge presiding over the resen-tencing should comply with Florida Rule of Criminal Procedure 3.700(c)(1) by becoming ‘acquainted with what transpired at the trial, or the facts, including any plea discussions, concerning the plea and the offense.’” Id. at n. 10, 845 So.2d at 159.

Reversed and remanded for resentenc-ing.

WHATLEY and STRINGER, JJ., Concur.


text:
    Keith JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-748.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    John H. Lipinski, Hollywood, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN and WELLS, JJ.
   PER CURIAM.

Affirmed. See Ragland v. State, 358 So.2d 100 (Fla. 3d DCA 1978); Haliburton v. State, 561 So.2d 248 (Fla.1990).


author: GREEN, J.

text:
    Isaac TACHER, Appellant, v. Cheryl MATHEWS and George Mathews, Appellee.
    No. 3D01-3369.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.

      Luis E. Ordonez & Associates and Frances F. Guasch, for appellant.
    Scott R. Gill (Ft.Lauderdale), for appel-lee.
    Before SCHWARTZ, C.J., and COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN and RAMIREZ, JJ., En Banc.
   GREEN, J.

The issue before this court is whether a zero dollar ($0.00) damage award always constitutes a defense “judgment” for purposes of a cost award under section 57.041, Fla. Stat. (1995). Following oral argument before a three judge panel, we sua sponte reheard the case en banc to consider the intra-district conflict between Upson v. Hazelrig, 444 So.2d 1127 (Fla. 3d DCA 1984), Blue v. Williams, 200 So.2d 626 (Fla. 3d DCA 1967), and Raffel v. Magarian, 165 So.2d 249 (Fla. 3d DCA 1964), all of which concluded that costs should go to the plaintiff under similar situations; and Militana v. Ladd, 605 So.2d 580 (Fla. 3d DCA 1992), which found that the defendant was entitled to a cost award. For the reasons outlined below, we recede from our opinions in Upson, Blue, and Raffel, and reaffirm our holding in Militana that a zero damage award constitutes a defense judgment for purposes of a cost award under section 57.041.

This case arose from a motor vehicle accident between plaintiff/appellee, Cheryl Mathews, and defendant/appellant, Issac Tacher. At trial, the lower court bifurcated the liability and damage issues. During the liability portion of the trial, the court directed a verdict in favor of Mathews based upon its finding that Tacher has completely at fault for the accident. That finding was affirmed by this court. See Tacher v. Asmus, 743 So.2d 157 (Fla. 3d DCA 1999), cause dismissed 767 So.2d 461 (Fla.2000).

During the damages portion of the trial, the jury concluded that Mathews had not sustained any permanent injury, and returned a verdict against Tacher in the amount of $4,210.00 for past medical expenses. After applying the applicable set-offs, Mathews’ verdict was ultimately reduced to zero. The trial judge entered a judgment in favor of Tacher, which stated inter alia that Mathews “take nothing by this action and that Defendant [Tacher] ... shall go hence without day.” The Court also reserved jurisdiction to determine the entitlement to and the amount of costs and attorney’s fees to Tacher.

Tacher filed motions to tax costs and fees against Mathews, which Mathews moved to strike. The court granted Mathews’ motion to strike attorney’s fees, which Tacher did not appeal. Mathews replied to Tacher’s motion to tax costs and moved to correct the final judgment to award costs to her. The trial court denied Tacher’s motion for costs, finding that Mathews was the prevailing party presumably in accordance with our decisions in Upson, Blue, and Raffel.

At the outset, and in fairness to the trial court, we acknowledge the inconsistency in our holdings on the issue presented on this appeal. In our most recent decision in Militana v. Ladd, supra, we held that where a plaintiff failed to establish that he had sustained a permanent injury despite the defendant’s admission of liability, the defendant was the party who recovered judgment and was therefore entitled to a recovery of costs. 605 So.2d at 581. Militana was a negligence action resulting from an automobile accident. The defendant admitted liability during opening statements, and therefore liability was not submitted to the jury. The jury’s verdict found that the plaintiffs had suffered no permanent injury as a result of the accident. The court’s judgment stated that the plaintiffs “take nothing by this action” and the defendants “go hence without a day.” Both parties filed motions to tax costs. The defendant’s motion was granted, and the plaintiffs’ motion was denied.

We affirmed finding that “the defendants in the instant case are ‘entitled to a judgment for their taxable costs’ since ‘they were the parties recovering judgment.’ ” 605 So.2d 580-81 (citing Weeks v. Klimas, 566 So.2d 344, 345 (Fla. 2d DCA 1990)).

However, prior to Militana, in Upson v. Hazelrig, supra; Blue v. Williams, supra; and Raffel v. Magarian, supra; we ruled entirely differently. In Upson, which also resulted from an automobile accident, the jury found that the plaintiffs injuries were caused solely by the defendant. However, the jury awarded plaintiff no damages for his injuries. We held that the plaintiff was “nevertheless the sole party entitled to recover judgment and thus costs under Section 57.041, ....” 444 So.2d at 1127-28. Similarly, in Blue the jury found for the plaintiff but awarded zero damages. The trial court, thereafter, entered judgment for the defendant. We reversed finding that it was “error to enter judgment for the defendant upon a verdict for the plaintiff.” 200 So.2d at 627. Accordingly, we ordered that costs be taxed against the defendant.

Section 57.041 mandates that a party recovering a judgment is entitled, as a matter of right, to recover lawful court costs. The award of these costs is not discretionary. See Weitzer Oak Park Estate, Ltd. v. Petto, 573 So.2d 990, 991 (Fla. 3d DCA 1991) (stating that under the stat ute, “every party who recovers a judgment in a legal proceeding is entitled as a matter of right to recover lawful court costs, and a trial judge has no discretion to deny costs to the parties recovering judgment.”) (citations omitted). Specifically, this section provides, in pertinent part, that:

(1) The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.

§ 57.071(1), Fla. Stat. (1995).

Judgment is defined as “[a] determination of a court of law; a judicial decision. A court act creating or affirming an obligation, such as a debt.” THE AMERICAN HERITAGE DICTIONARY 975 (3d ed.1992). See also BLACKS LAW DICTIONARY (7th ed.1999) (judgment is defined as “a court’s final determination of the rights and obligations of the parties in a case.”). It is undisputed that the final judgment in this case provided that Mathews “take nothing by this action,” thereby determining that Mathews had no right to damages, and Tacher owed no obligation to her. This was a judgment in favor of Tacher. Thus, according to the plain language of the statute, we therefore find that costs had to be awarded to Tacher. See Zurich, U.S. v. Weeden, 805 So.2d 945, 948 (Fla. 4th DCA 2001) (stating that “[statutory language is to be given its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature.”). We, therefore, reaffirm our holding in Militana, and recede from our decisions in Upson, Blue, and Raffel.

Reversed and remanded with directions to award taxable costs to the appellant.

      . Accordingly, the issue of whether Tacher is entitled to attorney's fees is not before this court.

      . Again in an automobile accident, the jury in Raffel found for the plaintiff, but assessed his damages at "none” dollars. The triad court entered judgment and later a cost judgment in favor of the defendants. We reversed finding that the only judgment which the court could "validly render on the verdict returned by the jury was one in favor of the [plaintiff].” 165 So.2d at 250. We thereafter held that "[ijnasmuch as a judgment in favor of the [plaintiff] should have been rendered on the verdict, it follows that costs should have been taxed against the [defendant].” 165 So.2d at 250-51.


author: WHATLEY, Judge.

text:
    Judy L. HOFFMAN, Appellant, v. Harold HOFFMAN, Appellee.
    No. 2D02-3868.
    District Court of Appeal of Florida, Second District.
    May 21, 2003.
    Judy L. Hoffman, Cape Coral, pro se.
    No appearance for Harold Hoffman.
   WHATLEY, Judge.

Judy L. Hoffman appeals the order denying her motion for contempt. Because the order is a nonappealable, nonfinal order, Fla. RApp. P. 9.130, we dismiss this appeal for lack of jurisdiction.

SALCINES and CANADY, JJ„ concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Alvin HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-646, 2D02-827.
    District Court of Appeal of Florida, Second District.
    May 21, 2003.
    James Marion Moorman, Public Defender, Bartow, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Alvin Hardy challenges the revocation of the drug offender probation he was serving in two circuit court cases. We reverse.

In its revocation order the trial court found that Hardy had violated conditions five (remaining at liberty without violating the law) and thirteen (completion of drug treatment program) of his probation.

The alleged violation of condition five stemmed from a domestic violence battery charge against Hardy. However, at the revocation hearing, the State announced that it was proceeding to trial on that charge and that it would not proceed on the alleged violation of that condition. Because the State did not present any evidence as to a violation of this condition, we must reverse the revocation order as to condition five. See Hightower v. State, 529 So.2d 726, 726 (Fla. 2d DCA 1988) (“A violation which triggers a revocation of probation must be willful and substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence.”).

Additionally, condition thirteen required that Hardy complete the Goodwill Intensive Outpatient Treatment program but did not place a time limit on the completion of the program. Because there remained time in Hardy’s probationary period to satisfy the treatment requirement, Hardy’s unsuccessful discharge from the program only eight months into his thirty-month probationary term did not violate the condition. See Williams v. State, 839 So.2d 926 (Fla. 2d DCA 2003).

Accordingly, we reverse the revocation and vacate the sentence.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ„ Concur.


text:
    Laudi DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3000.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    John H. Lipinski, Hollywood, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and SHEVIN, JJ.
   PER CURIAM.

We affirm the trial court’s denial of Diaz’ motion for post-conviction relief. See Smith v. State, 697 So.2d 991 (Fla. 4th DCA 1997)(it is the trial court’s responsibility to make findings of fact as to witness credibility). We do, however, reverse the trial court’s finding that Diaz was guilty of criminal contempt. See Rhoads v. State, 817 So.2d 1089 (Fla. 2d DCA 2002)(for a witness to be held in direct criminal contempt based on purported penurious testimony there must be judicial knowledge of the falsity); Newry v. State, 654 So.2d 1292 (Fla. 4th DCA 1995)(‘[T]he mere fact that the court believes one witness over another is insufficient to establish judicial knowledge [of false testimony]’, citing from Emanuel v. State, 601 So.2d 1273 (Fla. 4th DCA 1992)); Emanuel, 601 So.2d at 1275 ( [Direct] contempt should be reserved for the most blatant cases in which perjury is virtually undisputed.).

Affirmed as to the denial of the post-conviction motion; reversed as to the trial court’s finding that Diaz was guilty of contempt.


text:
    Andrew Henry MANN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-194.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for Appellee.
    Before GODERICH, GREEN, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on appellee State of Florida’s confession of error filed in this cause, as well as our own independent review of the record, the sentence is reversed due to the trial court’s failure to justify the sentence of life imprisonment as a violent career criminal. See Smith v. State, 842 So.2d 1047 (Fla. 3d DCA 2003). The case is remanded to the trial court to allow appellant Andrew Henry Mann to withdraw his plea, or for re-sentencing within the guidelines by a different judge, pursuant to Wilson v. State, 845 So.2d 142 (Fla.2003) (the record must rebut any presumption of vindictiveness).

Reversed and remanded.


text:
    Carline DESTINVAL, Appellant, v. The STATE of Florida, Appellee.
    No. 02-1232.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    Leonard P. Fenn, Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General and Steven R. Berger, Assistant Attorney General, for appellée.
    Before SCHWARTZ, C.J., and GREEN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Foster v. State, 778 So.2d 906, 917 (Fla.2000); Randall v. State, 760 So.2d 892, 900-01 (Fla.2000); Hayes v. State, 748 So.2d 1042, 1045 (Fla. 3d DCA 1999), approved 803 So.2d 695 (Fla.2001).


text:
    Felix JUAN, Appellant, v. FAME INTERNATIONAL BAY, INC., Appellee.
    No. 3D02-2769.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    Mandelbaum & Fitzsimmons and Scott Hewitt (Tampa), for appellant.
    Leon A. Williamson, Jr. (Tampa), for appellee.
    Before COPE, LEVY and FLETCHER, JJ.
   PER CURIAM.

Our review of the record leads us to the conclusion that the trial court erred when it defaulted the defendant. See Rule 1.500(b), Fla. R. Civ. P. As the final judgment was based upon the invalid default, the trial court erred when it denied Felix Juan’s motion to set aside default and default final judgment. See Green Solutions Int’l., Inc. v. Gilligan, 807 So.2d 693 (Fla. 5th DCA 2002). Accordingly, the order appealed is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.


text:
    Susan S. LORETDEMOLA and Jorge Francisco, Appellants, v. Jeanette RICHMOND, as Guardian of the Person and Property of Marsha Helene Richmond, Appellee.
    No. 3D02-1981.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    Michael A. Nuzzo, Miami; David B. Pa-kula, for appellants.
    Holman & Cohen and Kenneth E. Cohen, Hollywood, and Jeffrey Kenneth, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999).


text:
    Consuela Navarro SHELLEY, Appellant, v. In re ESTATE OF Enila KEALOHA, Deceased, Appellee.
    No. 3D02-2376.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.

      Glenn R. Miller (North Miami Beach), for appellant.
    Clifford B. Hark (Hollywood), for appel-lee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Jones v. Sun Bank Miami, N.A., 609 So.2d 98 (Fla. 3d DCA 1992).


author: NESBITT, Senior Judge.

text:
    David Fess WALKER, Appellant, v. The FLORIDA DEPARTMENT OF LAW ENFORCEMENT, etc., Appellee.
    No. 3D02-2239.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.
    Marc Anthony Douthit, Miami, for appellant.

      Blaxberg, Grayson Kukoff & Segal, and Jonathan W. Segal, Miami, for appellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

The appellant, claimant below, appeals an order dismissing his complaint for invasion of privacy against the Florida Department of Law Enforcement. For the reasons set forth below, we affirm.

In the first place the defendant has failed to comply with the notice provisions of Section 768.28(6)(a), Florida Statutes (2002), requiring proper, timely notification to the Department of Insurance as well as the Department • of Law Enforcement. Wemett v. Duval County, 485 So.2d 892 (Fla. 1st DCA 1986).

Next, it is the duty of Florida Department of Law Enforcement to gather criminal records and histories and all pertinent data regarding perpetrators. Here, matters which had given rise to such a report concerning appellant occurred in the 1970’s, and there was a court order directing FDLE to seal and expunge the defendant’s records. Nevertheless, due to an error, the records were subsequently included among the criminal histories posted on the FDLE’s web site. In February 2001, WPLG Channel 10 aired reporter Gilda Unruh’s story referring to the appellant as the “Teflon teacher.” The report was based, in part, on information that was obtained from the FDLE’s web site. Pri- or to the airing of the report FDLE had expressly advised the station and the reporter that it was under a court order to expunge claimant’s record and requested that the information not be used, but, nonetheless, the station aired the report.

The trial court correctly held that the claimant could not state a cause of action for invasion of privacy, as a matter of law, because the information allegedly disseminated by FDLE constituted a matter of legitimate public interest or concern. Cape Publications, Inc. v. Hitchner, 549 So.2d 1374, 1377 (Fla.1989) (The right to privacy does not prohibit the publication of matter which is of legitimate public concern).

Moreover, FDLE’s failure to have properly and completely complied with the court order of expungement did not give rise to an independent cause of action. Tudor v. State Dep’t of Law Enforcement, 768 So.2d 1242 (Fla. 1st DCA 2000). We agree with the Tudor court that appellant’s remedy is the right to return to the trial court which ordered the records expunged to seek compensatory damages for economic losses which the defendant is able to establish as a result of FDLE’s non-compliance. Such damages would be in the nature of civil compensation for violation of an injunction. Fla. Jur.2d, Injunctions § 104; National Exterminators, Inc. v. Truly Nolen, Inc., 86 So.2d 816 (Fla.1956).

Affirmed, without prejudice to the right to seek damages from the trial court which ordered the records expunged.


author: SCHWARTZ, Chief Judge.

text:
    Dwight Roy ECHEVARRIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-304.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.

      Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

Because the state was indisputably in serious, material, and inexcusable breach of its agreement not to oppose the appellant’s parole applications in return for his completely satisfied promise to plead guilty to reduced charges and testify in trial against the co-defendant, there is no choice under the law but to reverse the denial of 3.850 relief below, see State v. Frazier, 697 So.2d 944 (Fla. 3d DCA 1997), and, because specific performance of the prosecution’s undertaking would be futile at this stage, to order that the defendant be permitted to withdraw his plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Lee v. State, 501 So.2d 591 (Fla.1987); State v. Tiedge, 670 So.2d 191 (Fla. 3d DCA 1996); Buffa v. State, 641 So.2d 474 (Fla. 3d DCA 1994); Spencer v. State, 623 So.2d 1211 (Fla. 4th DCA 1993); Macker v. State, 500 So.2d 256 (Fla. 3d DCA 1986); Lollar v. State, 443 So.2d 1079 (Fla. 2d DCA 1984). As we said in Frazier:

[E]ven if neutral principles of law did not, as they do, require this result, the state, above all parties, must keep its word. See State v. Hargis, 328 So.2d 479, 481 (Fla. 1st DCA 1976)(Rawls, J., dissenting). Its attempts to convince the lower court and this one that it should be allowed to break it are unseemly and unworthy.

697 So.2d at 945. The last observation applies with even greater force to those individuals who knowingly broke the state’s promise in the first place.

Reversed and remanded with directions.

      . See Mack v. State, 461 So.2d 142 (Fla. 3d DCA 1984), review denied, 471 So.2d 43 (Fla.1985)(affirming conviction of co-defendant, shooter in armed robbery-murder, despite improper final argument, because of overwhelming evidence against him, including testimony of appellant).

      . On the other hand, the prosecutor who made the plea agreement and has steadfastly insisted that it be honored is to be commended.


author: VILLANTI, Judge.

text:
    Emmanuel CRESPO, Jr., and Carmen Crespo, his wife, Appellants, v. WOODLAND LAKES CREATIVE RETIREMENT CONCEPTS, INC., a Florida corporation, and Ralph Richardson, Appellees.
    No. 2D02-4127.
    District Court of Appeal of Florida, Second District.
    May 21, 2003.
    Jack B. Nichols, Orlando, for Appellants.
    Neal L. O’Toole and Gregory P. Abaray of Law Office of Neal L. O’Toole, P.A., Bartow, for Appellees.
   VILLANTI, Judge.

Emmanuel Crespo, Jr., and his wife, Carmen Crespo, challenge the final judgment awarding attorney’s fees to Woodland Lakes Creative Retirement Concepts, Inc. (Woodland Lakes), and Ralph Richardson pursuant to two proposals for settlement. Because the proposals did not comply with the requirements of Florida Rule of Civil Procedure 1.442, we reverse.

In April 2001, the Crespos sued Woodland Lakes and Richardson, among others, for alleged ethnic discrimination arising out of the purchase of a home in the Woodland Lakes manufactured home park. On July 17, 2001, Woodland Lakes and Richardson each served individual proposals for settlement on the Crespos. Each proposal offered the Crespos $1000 in full settlement of all claims, but neither proposal apportioned the amount of the offer between Mr. and Mrs. Crespo. The Cres-pos did not accept either offer.

After various discovery had been completed, the trial court entered final summary judgment in favor of Woodland Lakes and Richardson. Woodland Lakes and Richardson then filed a joint motion seeking an award of attorney’s fees pursuant to their proposals for settlement. Following a hearing on the enforceability of the proposals and the amount of the attorney’s fees reasonably incurred, the trial court entered a final judgment awarding Woodland Lakes and Richardson $7000 in attorney’s fees pursuant to their proposals for settlement. The Crespos then brought this appeal, arguing that the proposals were not enforceable because they did not comply with the requirements of section 768.79, Florida Statutes (2001), and rule 1.442.

Section 768.79(2) requires a proposal for settlement to include the following:

(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.

Similarly, rule 1.442(c)(2) requires the following to be included in a proposal for settlement:

(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) identify the claim or claims the proposal is attempting to resolve;
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080(f).

In addition to these requirements, rule 1.442(c)(3) requires that a joint proposal “state the amount and terms attributable to each party.” The reason for this requirement is twofold: to allow each party to evaluate the proposal independently, Allstate Indem. Co. v. Hingson, 808 So.2d 197, 198 (Fla.2002), and to allow the court to determine whether a judgment against only one of the parties is sufficient to trigger the sanctions provided in section 768.79. Id. at 199. This court has repeatedly required strict compliance with rale 1.442(c)(3) before it will uphold an award of attorney’s fees pursuant to the proposal at issue. See, e.g., Clipper v. Bay Oaks Condo. Ass’n, 810 So.2d 541 (Fla. 2d DCA 2002); Alanwood Holding Co. v. Thompson, 789 So.2d 485 (Fla. 2d DCA 2001); United Servs. Auto. Ass’n v. Behar, 752 So.2d 663 (Fla. 2d DCA 2000).

In this case, Woodland Lakes and Richardson each made separate proposals to the Crespos. However, because the proposals did not state the amounts attributable to Mr. Crespo and Mrs. Crespo, the proposals did not comply with the requirements of rale 1.442(c)(3). Because the proposals did not strictly comply with the requirements of the rale, they could not serve as the basis for an award of attorney’s fees.

In support of the judgment for fees, Woodland Lakes and Richardson rely on a line of cases which holds that a joint proposal made to two defendants, one of whom is vicariously liable for the negligence of the other, does not have to state the amount attributable to each defendant. See, e.g., Danner Constr. Co. v. Reynolds Metals Co., 760 So.2d 199 (Fla. 2d DCA 2000); Strahan v. Gauldin, 756 So.2d 158 (Fla. 5th DCA 2000), abrogated on other grounds, Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001); Crowley v. Sunny’s Plants, Inc., 710 So.2d 219 (Fla. 3d DCA 1998). This exception to rale 1.442(c)(3) arose because the theory of vicarious liability simply does not allow for apportionment of fault or damages. Danner Constr. Co., 760 So.2d at 202. Because apportionment is considered impossible in a vicarious liability case, the courts have relieved the parties of the requirement to apportion the offer in that type of case.

Contrary to Woodland Lakes’ and Richardson’s contentions, this line of cases has no relevance here. Unlike in those cases, the proposals for settlement in this case were made to two plaintiffs — not two defendants. Woodland Oaks and Richardson argue that apportionment was impossible because the Crespos are husband and wife and pleaded their claims in the same counts. However, no theory of liability prevented Woodland Lakes and Richardson from apportioning the amount offered between Mr. and Mrs. Crespo. Because there is no legal theory preventing apportionment, Woodland Lakes and Richardson may not ignore the clear language of rule 1.442(c)(3) and yet still obtain an award of attorney’s fees as a sanction. Moreover, we decline to create a judicial exception to the rule for claims made by a husband and wife, regardless of whether their claims are pleaded in a single count or in multiple counts.

In this case, Woodland Lakes and Richardson failed to comply with the clear terms of rule 1.442(c)(3). Because their proposals for settlement were legally deficient, Woodland Lakes and Richardson were not entitled to an award of fees based on those proposals, and we reverse the final judgment awarding attorney’s fees against the Crespos.

Reversed.

WHATLEY and SILBERMAN, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    GULF LANDINGS ASSOCIATION, INC., Appellant, v. Alan J. HERSHBERGER, Appellee.
    No. 2D02-4125.
    District Court of Appeal of Florida, Second District.
    May 23, 2003.

      Steven H. Mezer and Stephen B. French of Bush Ross Gardner Warren & Rudy, P.A., Tampa, for Appellant.
    Russell G. Marlowe of Davis & Marlowe, P.A., New Port Richey, for Appellee.
   ALTENBERND, Chief Judge.

Gulf Landings Association, Inc., appeals an order granting attorneys’ fees and costs to Alan J. Hershberger. We must reverse this order because Mr. Hershberger did not file a timely motion for attorneys’ fees and costs pursuant to Florida Rule of Civil Procedure 1.525.

Mr. Hershberger filed a complaint for declaratory relief against Gulf Landings, a homeowners’ association. He sought a determination that a cover he had installed on his boat lift did not violate a prohibition against “covered docks” contained in a declaration of covenants and restrictions that governed his property. In his complaint, Mr. Hershberger alleged a claim for attorneys’ fees under the provisions of the declaration of covenants and restrictions. Gulf Landings answered and counterclaimed, seeking an order requiring Mr. Hershberger to remove the cover. It too requested an award of attorneys’ fees pursuant to the declaration of covenants and restrictions and pursuant to section 720.305, Florida Statutes (2001). In his answer to the counterclaim, Mr. Hershber-ger asserted section 720.305 as an additional ground for his claim for attorneys’ fees.

On January 18, 2002, after a final hearing, the trial court rendered a final declaratory judgment in favor of Mr. Hershber-ger. In that judgment, the trial court reserved jurisdiction to determine both entitlement to and the amount of attorneys’ fees and costs awardable to Mr. Hershber-ger.

Prior to the entry of the judgment but after the trial court had orally pronounced its ruling, counsel for Mr. Hershberger provided Gulf Landings with his itemized billing statements and asked whether a hearing would be required to determine the issue of attorneys’ fees. The matter was not amicably resolved and, within a week after the entry of the judgment, Mr. Hershberger served a notice of hearing scheduling a final hearing on the issue of attorneys’ fees for April 8, 2002.

Gulf Landings waited until April 4, 2002, to file a memorandum in opposition to the claim. The memorandum pointed out that Mr. Hershberger had failed to file a motion for attorneys’ fees and costs within the 30 days allotted by Florida Rule of Civil Procedure 1.525. Indeed, it is undisputed that Mr. Hershberger never filed a postjudgment motion for attorneys’ fees. Gulf Landings argued that no award of fees or costs could be entered without a timely motion.

The trial court granted Mr. Hershber-ger’s claim for attorneys’ fees in the amount of $4,300.00 and awarded costs of $177.50. The trial court concluded that Mr. Hershberger did not need to comply with rule 1.525 because the trial court had specifically reserved jurisdiction in the final judgment to resolve the issues necessary to award attorneys’ fees.

With some reluctance, we must reverse this order. Although Gulf Landings was aware of the claim for attorneys’ fees and the legal basis for the request within one week of the final judgment, and therefore could not have been prejudiced by the procedures used by both Mr. Hershberger and the trial court, rule 1.525 was created to establish a bright-line rule governing the timeliness of posttrial motions for costs and attorneys’ fees. See Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002). That rule, which went into effect on January 1, 2001, before the complaint in this case was filed, states:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

Fla. R. Civ. P. 1.525; Amendments to Florida Rules of Civil Procedure, 773 So.2d 1098 (Fla.2000).

It is no longer enough for parties to plead a basis for fees in their pretrial pleadings. Likewise, it is no longer sufficient for a trial court to “reserve jurisdiction” with a final judgment to resolve the issues of attorneys’ fees and costs. These circumstances cannot overrule the plain language of rule 1.525, which requires a party seeking fees and costs to “serve a motion within 30 days after the filing of the judgment.” Special rules for such circumstances would simply return the courts to an era in which the time for the filing of these motions would again be uncertain. See, e.g., Wunderle v. Fruits, Nuts & Bananas, Inc., 715 So.2d 325 (Fla. 2d DCA 1998) (determining whether posttrial motion for attorneys’ fees had been filed within a “reasonable time”).

Mr. Hershberger argues that his notice of hearing can be considered a “motion” for the purposes of rule 1.525. Indeed, rule 1.525 does not specify what constitutes an adequate motion. We have considered whether the notice of hearing in this case could be treated as a motion for attorneys’ fees under Florida Rule of Civil Procedure 1.100(b), which provides that the requirement for a written motion “is fulfilled if the motion is stated in a written notice of the hearing of the motion.” However, rule 1.100(b) also requires that motions “state with particularity the grounds therefor,” and “set forth the relief or order sought.” Unfortunately, the notice of hearing in this case simply indicates the date of “the final hearing on attorney’s fees.” It contains no reference to the grounds upon which fees were sought or the amount requested. It also omits any mention of costs. Under these circumstances, the notice of hearing cannot be interpreted to incorporate a “motion” as defined in rule 1.100(b).

There is little question that bright-line rules can create inequities like those apparent in this case. This is especially true in the first few years of their existence when attorneys are still adapting to the new procedures. Equitable exceptions to bright-line rules, however, can create as many problems as they solve. The Florida Rules of Civil Procedure Committee has concluded that a bright-line test should exist. Amendments to Florida Rules of Civil Procedure, 773 So.2d 1098. The supreme court has adopted that approach. Id.; see also Fla. R. Civ. P. 1.525 committee notes (2000 adoption). As unpleasant as it is to strictly enforce rule 1.525 in this case, it must be enforced. Accordingly, .we reverse the order awarding attorneys’ fees and costs.

Reversed.

FULMER and CASANUEVA, JJ„ concur.

      . Indeed, both parties have sought appellate attorneys' fees on these same grounds before this court.


text:
    Walter R. BIVENS, Appellant, v. TRUGREEN LP and Unemployment Appeals Commission, Appellees.
    No. 2D02-1235.
    District Court of Appeal of Florida, Second District.
    May 23, 2003.
    Walter R. Bivens, pro se.
    Kenneth L. Olsen of The Law Firm of Kenneth L. Olsen, Tampa, for Appellee Trugreen LP.
    Geri Atkinson-Hazelton, General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee Unemployment Appeals Commission.
   ALTENBERND, Chief Judge.

Walter R. Bivens appeals an order of the Unemployment Appeals Commission affirming an appeals referee’s decision that Mr. Bivens was disqualified from receiving unemployment benefits due to misconduct. Because the appeals referee’s findings of fact do not support a legal conclusion that Mr. Bivens engaged in misconduct as defined by the unemployment compensation statute so as to deprive Mr. Bivens of unemployment benefits, we reverse.

Mr. Bivens was employed as a telemarketing sales representative with Trugreen Limited Partnership (Trugreen) beginning in December 2000. On August 29, 2001, Mr. Bivens argued with his immediate supervisor. According to the appeals referee’s findings of fact, Mr. Bivens informed his supervisor that he had a headache and was going home. The supervisor agreed that Mr. Bivens should leave. As Mr. Bivens left, the supervisor told Mr. Bivens that he should consider whether he wanted to continue his employment with Trugreen. Approximately five to ten minutes after Mr. Bivens left, Mr. Bivens called the supervisor and left a message on the supervisor’s voice mail. At the hearing before the appeals referee, both the supervisor and Mr. Bivens testified that Mr. Bivens’ voice mail message contained the term “f-g bull — t,” referring either to the company or the quality of the work provided to him, and Mr. Bivens admitted that he also referred to the employees as “working their a — s off’ for the company. Based upon this voice mail, Trugreen terminated Mr. Bivens’ employment the next day.

At the hearing before the appeals referee, the employer presented additional evidence that Mr. Bivens had previously received verbal warnings for “negative behavior” on “probably two or three” occasions and that, on the night in question, Mr. Bivens had made “very negative comments” on the sales floor in front of other employees. The supervisor could only recall one specific statement, however, that Mr. Bivens said he “wasn’t getting any d — n good material.” There was no other evidence of wrongdoing on Mr. Bivens’ part.

Section 443.036(29)(a), Florida Statutes (2001), defines “misconduct” to include “conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee.” In determining whether misconduct has occurred that would disqualify a claimant from receiving unemployment benefits, this statute must be liberally construed in favor of the claimant. Cullen v. Neighborly Senior Servs., Inc., 775 So.2d 392, 393 (Fla. 2d DCA 2000). A single incident of poor judgment or loss of self-control is not “misconduct” under the statute. Donnell v. Univ. Cmty. Hosp., 705 So.2d 1031, 1032 (Fla. 2d DCA 1998). Moreover, misbehavior serious enough to warrant an employee’s dismissal is not necessarily serious enough to warrant the forfeiture of unemployment compensation benefits. Frazier v. Home Shopping Club, LP, 784 So.2d 1190, 1191 (Fla. 2d DCA 2001).

In this case, the findings made by the appeals referee do not support the legal conclusion that Mr. Bivens engaged in misconduct as defined by section 443.036(29)(a). See Donnell, 705 So.2d 1031 (reversing denial of benefits based on misconduct where claimant failed to follow recently changed policy regarding garbage can liners, engaged in loud argument, in hallway with supervisor when confronted with noncompliance, and initially refused supervisor’s command to go to his office); Benitez v. Girlfriday, Inc., 609 So.2d 665 (Fla. 3d DCA 1992) (reversing denial of benefits based on misconduct when claimant engaged in telephone argument with branch manager during which she used profanity when referring to manager); Johnson v. Fla. Unemployment Appeals Comm’n, 513 So.2d 1098 (Fla. 3d DCA 1987) (reversing denial of benefits based upon misconduct where claimant used profanity during conversation in private office with supervisor). The profanity used by Mr. Bivens occurred on voice mail, outside the presence of either the supervisor or his coemployees. Compare Wrightington v. Unemployment Appeals Comm’n, 833 So.2d 202 (Fla. 5th DCA 2002) (reversing denial of benefits based on misconduct where claimant’s vulgar and abusive language toward chief executive officer was isolated incident occurring in confines of private office), with Suluki v. Unemployment Appeals Comm’n, 644 So.2d 552 (Fla. 5th DCA 1994) (affirming denial of benefits based on misconduct when claimant cursed at the president of the employer in the presence of two new trainees). Mr. Bivens’ loss of control on this occasion was an isolated incident. The only profanity he used on the sales floor was the word “d — n,” which was not directed at any person in particular but instead used to express general frustration. The profanity was not used in the presence of customers, clients, or children, and the record does not suggest that the employer had any rigid rule prohibiting employee profanity in this context. In his voice mail message to the supervisor, available only to the supervisor himself, Mr. Bivens did not use the profanities to call his supervisor names, but instead used them to refer to the work in general.

Although we do not condone Mr. Bivens’ behavior and we recognize that an employer may have reasonably considered it a sufficient basis to terminate him, the behavior did not rise (or sink) to the level of “misconduct” required to deny Mr. Bivens unemployment benefits. We therefore reverse the order of the Unemployment Appeals Commission affirming the appeals referee’s denial of benefits and remand with directions to award Mr. Bivens benefits.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ„ concur.


text:
    Maurice LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2854.
    District Court of Appeal of Florida, Second District.
    May 23, 2003.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Maurice Lawson appeals from an order revoking his probation. We reverse because the evidence was insufficient to show a willful and substantial violation of probation.

Lawson was charged with violating special condition 17, which provides: “You shall attend and complete out-patient sex offender counseling during probationary period.” The affidavit of violation of probation alleged that Lawson:

was unsuccessfully terminated from Sex Offender Counseling as a result of ... ongoing poor community adjustment, his slow progress in working on therapeutic assignments and his failure to either pay for his counseling or do community service hours for his counseling, as verified by a letter from Dr. Leo Cotter, his Sex Offender Therapist.

At the hearing on the violation, the probation officer testified that Lawson’s probation was scheduled to terminate on June 30, 2005. Lawson was violated due to a letter from Dr. Cotter dated February 27, 2002, indicating that Lawson was terminated from sex offender counseling. Dr. Cotter, director of the SHARE program, which is a private sexual abuse treatment program, testified that he could not get Lawson to focus and settle down and that Lawson was terminated from the program because he put forth a high risk for reof-fending.

Lawson had a near perfect attendance record in Dr. Cotter’s weekly group treatment program from his start in July 2000 until his termination in February 2002. Lawson testified that he wished to resume treatment and had worked on treatment assignments while he was in jail on his violation of probation. Dr. Cotter testified that he would accept Lawson back into treatment if his attitude improved.

In similar cases, where a probationer was terminated from a treatment program early, the evidence has been considered insufficient to show a willful and substantial violation. See Bennett v. State, 684 So.2d 242 (Fla. 2d DCA 1996); Young v. State, 566 So.2d 69 (Fla. 2d DCA 1990); Cowart v. State, 754 So.2d 813 (Fla. 1st DCA 2000); Gibbs v. State, 609 So.2d 76 (Fla. 1st DCA 1992). It is also noteworthy that the probation order in this case did not specify that treatment had to be successfully completed on the first try or how many chances the probationer would be given to successfully complete it. See Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002); Dunkin v. State, 780 So.2d 223 (Fla. 2d DCA 2001); Jones v. State, 744 So.2d 537 (Fla. 2d DCA 1999); Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995); Young. We, therefore, reverse and remand for the trial court to reinstate the probation.

Reversed and remanded.

CASANUEVA, J, and THREADGILL, EDWARD F., Senior Judge, concur.


text:
    Ronald E. DAHLY, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Eric Olsen, Richard Coffey, Julia Hermelbracht, Sue Gray, and Harriett Powell, Appellees.
    No. 2D01-5744.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.

      Ronald E. Dahly, pro se.
    Thomas J. DeBari and Viviana I. Pedro-so of Harbsmeier, DeZayas & Appel, LLP, Lakeland, for Appellees.
   ON MOTION FOR REVIEW OF APPELLATE COSTS ORDER

ALTENBERND, Chief Judge.

Pursuant to Florida Rule of Appellate Procedure 9.400(c), we review the trial court’s order denying Ronald E. Dahly’s motion to recover appellate costs. We reverse the order and direct the trial court to enter the judgment.

On September 27, 2002, this court reversed a summary judgment that had been entered against Mr. Dahly and in favor of the appellees. See Dahly v. Dep’t of Children & Family Servs., 826 So.2d 532 (Fla. 2d DCA 2002). In our opinion, we directed the trial court to enter a new order on the motion for summary judgment specifying the grounds for its ruling on each count. We did not relinquish jurisdiction for this purpose, but reversed the order on appeal because it was not clear to this court that the trial court could actually enter an appropriate summary judgment on each count if it was required to explain its reasons. Mr. Dahly may not ultimately prevail in the trial court, but he did prevail on the significant issue in the case on appeal.

Under Florida Rule of Appellate Procedure 9.400(a), unless otherwise directed by this court, the prevailing party is entitled to file a motion in the trial court within thirty days of remand to obtain an award of costs. Di Teodoro v. Lazy Dolphin Dev. Co., 432 So.2d 625 (Fla. 3d DCA 1983). The party who prevails in the appeal is entitled to obtain this award prior to the conclusion of proceedings in the trial court and without regard to whether they ultimately prevail in the trial court proceeding.

In this case, the appellees convinced the trial court that Mr. Dahly was not entitled to an award of costs because he had not yet prevailed in the trial court. We appreciate the fact that the limited nature of our own holding may have caused the trial court to believe it had the discretion to delay the award of costs. However, because Mr. Dahly prevailed in this court, he is entitled to recover his costs at this time. See Di Teodoro, 432 So.2d at 626; Lucas v. Barnett Bank of Lee County, 732 So.2d 405, 407 (Fla. 2d DCA 1999).

Reversed with directions to grant Mr. Dahly a judgment for appellate costs.

NORTHCUTT and SILBERMAN, JJ., concur.


author: | .PER CURIAM.

text:
    In re Hobart O. PARDUE, Jr.
    No. 2003-OB-0294.
    Supreme Court of Louisiana.
    April 4, 2003.
   ON APPLICATION FOR REINSTATEMENT

| .PER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, Hobart 0. Pardue, Jr., an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Pardue, 98-3017 (La.3/26/99), 731 So.2d 224, petitioner was suspended for two years following his felony conviction of willfully making and subscribing a false tax return. In addition, in an unrelated matter, petitioner was found to have improperly communicated with a party represented by counsel. Petitioner had not yet been reinstated from the 1999 suspension when this court accepted a joint petition for consent discipline proposing that he be suspended for an additional six months for engaging in a prohibited conflict of interest in connection with his representation of a succession. In re: Pardue, 02-0169 (La.4/12/02), 814 So.2d 1269. Petitioner subsequently filed an application for reinstatement to the practice of law, asserting that he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel initially indicated that it would take no position concerning petitioner’s reinstatement, and accordingly, the matter was referred for a formal hearing before a hearing committee.

| ¡After considering the evidence presented, the hearing committee recommended that petitioner be reinstated to the practice of law, subject to the supervision of a practice monitor. The committee further recommended that petitioner “be required to periodically provide the practice monitor with a list of his active litigation files, including the name and contact information of opposing counsel and the court involved. The practice monitor should then be instructed to periodically conduct interviews of opposing counsel and court records on a test sampling basis to determine whether there are any indications of possible violations of the Rules of Professional Conduct of the type reflected in the record of Mr. Pardue’s prior discipline.” Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

Thereafter, the disciplinary board adopted the factual findings of the hearing committee, and agreed that petitioner proved by clear and convincing evidence that he satisfies the criteria for reinstatement. Accordingly, the board recommended to this court that petitioner be reinstated to the practice of law, subject to a one-year period of supervised probation governed by the conditions recommended by the committee. Neither petitioner nor the ODC objected to the disciplinary board’s recommendation.

After considering the record in its entirety, we conclude petitioner is entitled to be reinstated to the practice of law subject to a three year period of probation and the condition that he successfully complete the Louisiana State Bar Association’s Ethics School program.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Hobart 0. Par-due, Jr. be reinstated to the practice of law in Louisiana, subject to a probationary period of three years, with the condition that he successfully complete the Louisiana State BarJjjAssociation’s Ethics School program. Should petitioner fail to comply with this condition of probation, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate. All costs of these proceedings are assessed against petitioner.

       Calogero, C.J. recused.


text:
    STATE of Louisiana v. Jermaine BARNES.
    No. 2002-KP-2059.
    Supreme Court of Louisiana.
    April 4, 2003.
   PER CURIAM.

Writ granted; case remanded to the district court. Under the rule set out in Louisiana jurisprudence, the changes mandated by 2001 La. Acts 403 do not apply to sentences imposed for crimes committed before the act’s effective date. State v. Mayeux, 01-3408, p. 2-3 (La.6/21/02), 820 So.2d 524, 525-26; State v. Sugasti, 01-3407, p. 6-7 (La.6/21/02), 820 So.2d 518, 521-22. Operation of this rule extends to habitual offender sentences imposed pursuant to R.S. 15:529.1. State v. Harris, 02-0873, p. 2-5 (La.App. 5th Cir.1/28/03), 839 So.2d 291, 294; State v. Wilson, 02-0776, p. 10-11 (La.App. 4th Cir.1/22/03), 839 So.2d 206, 213; State v. Wade, 36,295, p. 11-13 (La.App. 2nd Cir.10/23/02), 832 So.2d 977, 986; State v. Bagneris, 02-0773, p. 4-5 (La.App. 4th Cir.10/16/02), 830 So.2d 1047, 1050; State v. Melancon, 01-1656, p. 9 (La.App. 4th Cir.8/21/02), 826 So.2d 633, 640; State v. Houston, 02-0255, p. 4 (La.App. 4th Cir.4/24/02), 818 So.2d 253, 255-56; State v. Flagg, 01-0965 (La.App. 5th Cir.3/26/02), 815 So.2d 208, 210-11. The case is accordingly remanded to the district court for imposition of sentence in accord with the sentencing statutes in force at the time of the offense.

KIMBALL, JOHNSON and KNOLL, JJ., would deny the writ.


author: LPER CURIAM.

text:
    In re David L. SHALL.
    No. 2003-OB-0654.
    Supreme Court of Louisiana.
    April 4, 2003.
   ON APPLICATION FOR REINSTATEMENT

LPER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, David L. Shall, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On October 9,1998, this court suspended petitioner from practice for a period of three years pursuant to a petition for consent discipline. In re: Shall, 98-2304 (La.10/9/98), 719 So.2d 395. The record of that disciplinary matter indicated that petitioner knowingly purchased unauthorized copy cards for the purpose of copying records at the Orleans Parish Notarial Archives. Petitioner purchased these cards at a discount from an employee of the Archives, who kept the funds for himself. In June 1997, prior to the lodging of any complaint with the Office of Disciplinary Counsel (“ODC”), petitioner provided restitution to the Archives in the amount of $14,250, which was a complete refund of all the revenue lost due to his actions.

After serving his suspension, petitioner filed an application for reinstatement to the practice of law, asserting that he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel initially indicated that it would take no position concerning petitioner’s reinstatement, and accordingly, the matter was referred for a formal hearing before a hearing committee. William Pratt, the Custodian of Notarial Records for the Parish of | ¡¡.Orleans, was notified concerning petitioner’s application for reinstatement, but he made no appearance at the hearing, nor did he otherwise object to petitioner’s application.

After considering the evidence presented, the hearing committee concluded petitioner proved by clear and convincing evidence that he satisfies the criteria for reinstatement, and recommended that he be reinstated to the practice of law. The disciplinary board subsequently adopted the committee’s factual findings and its recommendation of reinstatement. Neither party has objected to the disciplinary board’s recommendation.

DISCUSSION

Petitioner has served the three-year suspension imposed by this court in 1998, and no objections were received to his application for reinstatement. Petitioner has met the criteria for reinstatement set forth in Supreme Court Rule XIX, § 24(E). Accordingly, we will accept petitioner’s application and order that he be reinstated to the practice of law in Louisiana.

DECREE

Upon review of the findings and recommendation of the hearing committee and the disciplinary board, and considering the record, it is ordered that David L. Shall be reinstated to the practice of law in Louisiana.


author: | T CALOGERO, C.J.,

text:
    Sherry WATTERS, Frances M. Breyene, Gina Recasner, Gretchen Wiltz and Wendy Lemeaux, Individually and on Behalf of Others Similarly Situated, v. DEPARTMENT OF SOCIAL SERVICES, Department of Health and Hospitals, Division of Administration.
    No. 2003-CC-0187.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Watters, Sherry; Breyene, Frances M.; Recasner, Gina; Wiltz, Gretchen; Lemeaux, Wendy; Plaintiff(s); Applying for Reconsideration of this Court’s action dated January 31, 2003; Parish of Orleans, Civil District Court, Div. J, Nos. 01-17775 and 01-18355; to the Court of Appeal, Fourth Circuit No. 2002-C-2490.

Reconsideration application not considered. See Supreme Court Rule IX, Section 6.

CALOGERO, C.J., would grant reconsideration and assigns reasons.

JOHNSON, J., would grant the reconsideration.

| T CALOGERO, C.J.,

would grant reconsideration for reasons assigned:

Normally, this Court’s rule that an application for reconsideration from a writ denial will not be considered would have application in a case such as this. Supreme Rule IX, § 6. However, I think that such rule should not be made applicable in the unusual circumstances here. The Court of Appeal opinion from which we denied writs 5-2 (Calogero and Johnson dissenting), inappropriately I think, denied a writ application on a trial court judgment dismissing the plaintiffs’ asbestos-related claims on the basis of “asbestos exclusions” in the defendants’ policies, while remanding for a hearing on the plaintiffs’ contentions that the defendants had no right to file pleadings pursuant to La.Rev. Stat. 22:1255. The plaintiffs’ contentions to this effect had been raised in response to the very pleading that had later prompted the trial court’s grant of the summary judgment, followed by the appellate court’s denial of writs on that ruling. The reason for both rulings was that the asbestos exclusion in the insurance policy was applicable. The consequence of all of this is the irreconcilable reality that the court of appeal eventually agreed with the plaintiffs’ contentions that the defendant insurers had no right to file pleadings (writ application | ^number 03-C-484), despite the fact that the appellate court had already denied review of a judgment granting a summary judgment filed by these defendants who it was later determined had no right to file pleadings.

This court this very day in writ number 03-CC-0787 is denying a defense application protesting that ruling of the court of appeal, thereby agreeing that these defendants had no right to file the motion for summary judgment that resulted in the dismissal of the plaintiffs’ asbestos-related claims. Simultaneously, this court is denying today reconsideration of the plaintiffs’ writ challenging the granting of the improperly filed motion for summary judgment. As a result, the plaintiffs have won a Pyrrhic victory, barring the defendants from filing papers, but losing their challenge to rulings flowing from the improperly-filed papers. Under these extraordinary circumstances, with the defendants still in the case below and now required in the lawsuit to post a bond, the courts find themselves in the untenable position of having finalized a result flowing from an improperly-filed pleading. Moreover, the court’s rote application of the rule denying consideration of an application for reconsideration of a simple writ denial denies the plaintiff an opportunity to defend against a similar motion for summary judgment which might be properly filed by the defendants following the posting of bond. Unfortunately, the plaintiffs have won a battle, but lost the war.

Accordingly, I would grant the plaintiffs’ application for reconsideration in number 03-CC-0187 and reverse the pro-defense granting of summary judgment. By denying the writ application in number 03-CC-0787, this court today has sanctioned the court of appeal’s order remanding the case in order to allow the defendant to qualify for the right to file pleadings by setting and filing the bond. With that being the premise, I would, after reversing the granting of summary judgment in writ | ¡^application number 08-CC-0187, and remand the case to the district court for trial on all issues, including the applicability of the asbestos exclusion in the policies issued by the defendants, if the trial judge, in the matter regarding number 03-CC-0787, allows the filing of pleadings after setting the filing of bond.

My objective as recited above is to allow all issues in this case to be resolved in a sensible manner. The conflicting results reached by the majority of this court in the two consolidated writ applications are nonsensical under the circumstances of this case.


author: CALOGERO, Chief Justice,

text:
    Steven ROSEN, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2003-OC-0284.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Rosen, Steven, et al.; Fuller, Robin Renee; Rosen, Robin Renee Fuller;—Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court, Div. M, No. 92-18044; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1447.

Writ denied.

CALOGERO, C.J., concurs in denial and assigns reasons.

CALOGERO, Chief Justice,

concurs in the denial of the writ application and assigns the following reasons:

The court of appeal’s ruling, which dismisses plaintiffs’ appeal without prejudice because the district court failed to designate its interlocutory ruling as a final and appealable judgment, causes plaintiffs no significant hardship. In F. Maraist & H. Lemmon, Louisiana Civil Law Treatise, Civil Procedure § 12.1 at n. 6 (1999), the authors observe that there is no time limit specified for the commencement of the delay for appealing:

LSA-C.C.P. art.1915 does not provide the method for seeking the designation; presumably, this is done by motion to designate the judgment as final. Moreover, there is no time limit specified for the commencement of the delay for appealing. ...

Because there are no time limits for requesting that the judgment be designated as appealable, plaintiffs may file a second motion to designate the judgment as immediately appealable.