text:
    Joseph CHAMBERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4721.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2004.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, petitioner.
    Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Joseph Chambers is hereby granted a belated appeal from judgment and sentence in case number 02-CF-2884 in the Circuit Court for Leon County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The lower tribunal is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

PETITION GRANTED.

WEBSTER, LEWIS and HAWKES, JJ., concur.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    E.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-778.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2004.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

E.B., following his change of plea, adjudication, and sentence, appeals the denial of his dispositive motion to suppress. We reverse.

Several days after receiving a complaint that juveniles were selling drugs and brandishing guns at a specific picnic table near the football field in Campbell Park, St. Petersburg Police Officers Books and McCoy went to the park to investigate. Dressed in uniform and operating a marked police cruiser, the officers approached the identified picnic table to begin an investigation. Officer Books estimated there were between 300 and 400 people in the park, most of whom were attending a youth football game. However, ten to fifteen juveniles on or near that table did not appear to be interested in the football game. Up to this moment, Officer Books had not observed any criminal conduct or suspicious behavior. As Officer Books exited his vehicle, E.B. was the first to get off the table and begin walking away. Several others also began to walk away. Because E.B. was the first to leave, Officer Books became suspicious of him. He approached E.B., calling out that he wished to speak with him, but he did not block his path or use force to make him stop. According to the officer, E.B. stopped but did not turn around, so the officer came around to face him.

E.B. told the officer that he had been in the park hanging out with Mends. Although the officer had observed no criminal conduct or any incriminating bulges on E.B.’s person, he asked for consent to do a patdown, which E.B. gave. While patting E.B.’s left front pants pocket, the officer encountered a small tube that he testified felt like a Chapstick lip balm container. He knew it was not a weapon but manipulated it anyway, causing a rattling sound. At this point, E.B. attempted to leave, but the officer grabbed him by the arm to prevent him from departing. Seeing that Officer Books had grabbed E.B., Officer McCoy came over and helped to handcuff him. Officer Books then removed the tube, took off the top, and discovered thirteen pieces of crack cocaine inside. In his over fourteen years in law enforcement, Office Books had made approximately three hundred drug arrests, half of which involved similar tubes containing cocaine.

Officer Books arrested E.B. for possession of the contraband, and Officer McCoy then escorted E.B. to their police car. As E.B. was walking with Officer McCoy, his pants began to fall. While assisting E.B. by holding the pants about waist high, Officer McCoy felt a gun in the waistband of E.B.’s undershorts, which the officer seized when they arrived at the police cruiser. The gun and the cocaine were the objects of the motion to suppress.

We address two issues: first, whether the officer went beyond the limits of a consensual patdown search and, second, whether, as the trial court determined, the “plain-feel” doctrine rendered the seizure constitutional.

When reviewing a trial court’s ruling on a motion to suppress, an appellate court reviews a mixed question of law and fact. The standard for reviewing facts is whether competent, substantial evidence supports the trial court’s factual findings. The historical facts should be reviewed only for clear error. The trial court’s application of law is reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001).

To validate a warrantless search, i.e., the patdown here, the State must prove that it falls into one of the recognized exceptions to the warrant requirement, one of which is consent. Smith v. State, 753 So.2d 713, 715 (Fla. 2d DCA 2000). Patdown searches are justified as a response to a law enforcement officer’s need to be protected from violence in those situations where probable cause does not exist. “American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.” Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the almost four decades since Tern/, this unfortunate tradition continues. So long as it is a brief intrusion into the privacy and sanctity of the person, the protective search or pat-down for weapons is, in certain situations, constitutionally permissible. Based on the officer’s testimony, there is substantial, competent evidence to support the trial court’s determination that the initial stop of E.B. and the patdown were consensual.

However, consent in a police-citizen encounter may be revoked by the citizen. Phillips v. State, 707 So.2d 774 (Fla. 2d DCA 1998). The limits of the search are defined by the extent of the consent given. Jacobs v. State, 733 So.2d 552, 554 (Fla. 2d DCA 1999) (“The scope of consent to search is generally limited to what a reasonable person would have understood to be the object of the search during the exchange between that person and the police.”); State v. Wells, 539 So.2d 464, 467 (Fla.1989) (“When the police are relying upon consent to conduct a warrantless search, they have no more authority than that reasonably conferred by the terms of the consent.”); Smith, 753 So.2d at 715. Generally, “in the absence of additional circumstances which would justify a more complete search, consent to a mere pat-down does not include consent to reach into the pockets of a suspect and retrieve the contents.” Sanders v. State, 732 So.2d 20, 21 (Fla. 1st DCA 1999) (citing Jordan v. State, 664 So.2d 272 (Fla. 5th DCA 1995)).

Thus, despite the consensual stop and patdown, E.B. retained the right to revoke his consent either by verbal or nonverbal conduct. Smith, 753 So.2d at 715-16 (holding that, by setting his tongue to obscure the officer’s view, the defendant denied or withdrew consent for the officer to further search his mouth and look under his tongue). Here, the record is clear that E.B. attempted to leave when the officer manipulated the tube. Indeed, the officer testified that by attempting to flee, E.B. was trying to end the encounter: This nonverbal conduct clearly evinced E.B.’s desire to withdraw the previously granted consent for the patdown and continued search of his person. By his conduct, E.B.’s previously given consent was revoked and, thus, could not thereafter act as the basis for upholding a further search. At the moment E.B. withdrew his consent by his nonverbal conduct, the officer did not have information sufficient to meet the probable cause requirement to further detain E.B.

Additionally, the officer had no other basis to detain E.B. “[FJlight alone is not even a proper basis for a founded suspicion of criminal activity so as to justify an investigatory stop.... Nor does flight from an illegal detention provide a proper basis to search.” Castillo v. State, 536 So.2d 1134, 1137 (Fla. 2d DCA 1988) (citations omitted). In Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court held that an individual’s presence in a high crime area coupled with the individual’s unprovoked flight may permit an officer to stop or detain an individual for investigative purposes. Here, the record does not contain sufficient facts to establish that Campbell Park is a high crime area.

Because the officer lacked probable cause or a founded suspicion at this point in his encounter with E.B.,: our next step is to determine whether what the officer knew about the size and shape of the container he felt in E.B.’s pocket provided probable cause to seize it under the “plain-feel” doctrine enunciated in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

Under the “plain-feel” doctrine, “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose .contour and mass make its [illicit] identity immediately apparent, there has been no invasion of the suspect’s privacy ... [,] ” and therefore there is no constitutional basis for suppressing the seized contraband as fruit of the poisonous tree. [Dickerson, 508 U.S.] at 375, 113 S.Ct. 2130.

Frazier v. State, 789 So.2d 486, 489 (Fla. 2d DCA 2001). The United States Supreme Court reasoned in Dickerson that the continued exploration of a suspect’s pocket after the officer had determined that no weapon was present did not emanate from the Terry justification for a search to ensure officer safety and protection. Dickerson, 508 U.S. at 379, 113 S.Ct. 2130. Because the incriminating nature of the object was not immediately apparent to the seizing officer who had to both roll the item in his fingers and squeeze it to ascertain its identity, the Supreme Court held that the seizure of the contraband violated the Fourth Amendment. Id. at 378, 113 S.Ct. 2130.

Here, similar facts exist. During the consensual patdown, Officer Books neither suspected nor found that E.B. had a weapon; he found only a small, cylindrical object, which he instantly recognized was not a weapon. Moreover, the incriminating character of the object became apparent only after the officer manipulated it, produced a rattling sound, seized the container, and opened it to examine the contents.

In Harford v. State, 816 So.2d 789, 791 (Fla. 1st DCA 2002), the court discussed whether, after an officer discovered that the object he removed from the defendant’s front pocket was merely a cigarette box, he was justified in opening it for further examination of the contents. The court stated:

It is evident from the officer’s testimony recited above, in part, that after removal of the box from appellant’s pocket he knew the object was not a weapon; and most significantly, as he forthrightly admitted, he did not suspect that there was a weapon in the box. This testimony, coupled with the absence of “specific and articulable facts,” as required by Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868, 20 L.Ed.2d 889, warranting the officer in a reasonable belief or suspicion that appellant was armed and dangerous, persuades us that opening the box exceeded the limits of a justifiable intrusion on the privacy protected by the Fourth Amendment.

Harford, 816 So.2d at 792. A plain-feel search was also the issue in Jordan, 664 So.2d 272, where the Fifth District noted that while “conducting the search, the officer could seize contraband only if, based on the totality of the circumstances, the officer felt something that he immediately knew was contraband, such as cocaine.” Id. at 273.

In E.B.’s case, despite the fact that Officer Books had seized contraband in lip balm tubes many times in the past, he did not know that E.B. had illegal drugs until he seized the container and opened it. Probable cause must exist before an object can be seized; after-the-fact discovery of contraband does not render the seizure legal. Id. at 274 (“In order to establish probable cause, the officer was required to articulate facts that were known prior to the seizure.”); see also Doctor v. State, 596 So.2d 442, 445 (Fla.1992) (holding that an officer searching for weapons had probable cause to seize cocaine from the detainee’s person where the officer testified to his experience with the unique texture of crack cocaine, types of concealment, and methods of packaging). Further, it is the State’s burden to prove a police officer possessed the requisite probable cause. A mere “feeling” based on prior experience is not sufficient. Rodriguez v. State, 807 So.2d 130, 131 (Fla. 2d DCA 2002). And although the officer had often found cocaine in similar tubes in the past, many other legal items are carried in such containers. Probable cause does not exist when the circumstances are equally consistent with noncriminal activity as with criminal activity. Angaran v. State, 681 So.2d 745 (Fla. 2d DCA 1996) (holding that a person’s request to an undercover officer for rolling papers so he could “roll a joint” did not establish probable cause to believe he was in possession of marijuana because it gave rise merely to competing inferences, one criminal and one not).

In Howard v. State, 645 So.2d 156 (Fla. 4th DCA 1994), a case with the closest factual similarity to E.B.’s, rock cocaine was found in a quickly identified, tubular container. In the course of a consensual weapons patdown, the officer felt a small plastic canister that he immediately identified as a 35mm film canister. With the canister in the defendant’s pocket, the officer shook it and heard pebble-like sounds. The officer removed the canister and, after shaking it again and hearing the same noise, opened it to discover rock cocaine. Id. at 157. Citing the rationale of Doctor, 596 So.2d at 444, the Fourth District reiterated the Florida Supreme Court’s caution to police officers conducting a pat-down for weapons not to exceed the scope reasonably necessary to ensure that the individual has no weapon. Howard, 645 So.2d at 158 (stating that a permissible search for weapons should not be a “springboard for a search for other items”). “Perhaps the unspoken reason for limiting searches and seizures to objects thought to be weapons is that any other rule would have the practical effect of allowing law enforcement officers to search for contraband with less than probable cause on the ostensible premise of looking for weapons.” Doctor, 596 So.2d at 444 (citing Dunn v. State, 382 So.2d 727, 729 (Fla. 2d DCA 1980)).

Further, in Howard, the court rejected the contention that the plain-feel doctrine validated the seizure. In discussing Dickerson, the court required that the police officer conducting the search immediately recognize the illegal nature of the object by touch, such as from its texture or feel, without squeezing, sliding, or otherwise manipulating the object, once it was clear that the object could not reasonably be a weapon. Howard, 645 So.2d at 159. As in Howard, once the officer felt and recognized the small, cylindrical container in E.B.’s pocket, there was no reasonable belief that it contained a weapon. By shaking it, removing it from the pocket, and opening it, the officer exceeded the limits of the consensual intrusion into E.B.’s privacy to do a patdown for weapons. This conduct was clearly proscribed by Dickerson and its Florida progeny and we, accordingly, find the search impermissible and reverse.

Reversed and remanded with instructions to grant the motion to suppress the cocaine and weapon found on E.B.’s person and for further proceedings consistent with this opinion.

SILBERMAN and VILLANTI, JJ., concur.


author: STEVENSON, J.

text:
    George MAY, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    No. 4D03-942.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.

      Jo Ann Kotzen of the Kotzen Law Offices, West Palm Beach, for appellant.
    Robert G. Panse, Senior Attorney, South Florida Water Management District, West Palm Beach, for appellee.
   STEVENSON, J.

Appellant, George May, timely appeals the judgment of the Fifteenth Judicial Circuit holding him in contempt of court. In addition, May appeals an order denying his motion to disqualify the trial judge. We affirm in part and reverse in part.

The order denying disqualification

We affirm the order denying disqualification as the motion was legally insufficient. The fact that May filed a lawsuit in federal court against Judge Rapp is as a matter of law, in and of itself, a legally insufficient basis to grant a motion for disqualification. In Dowda v. Salfi, 455 So.2d 604 (Fla. 5th DCA 1984), the court held that a defendant in a criminal case cannot disqualify a trial judge merely by filing a civil action against the judge since to hold otherwise would permit a defendant to decide and control who will sit as judge in his case by filing lawsuits against judges he does not prefer:

[The defendant] could thereby ultimately select the judge he does prefer by naming all other judges as parties defendants in baseless civil actions. However, the merit or lack of merit of the defendant’s civil suit against the judge is immaterial. This is so because if the civil action has no merit the judge should not be disqualified and, if the civil action does have merit, then the basis for the civil action can then also be used as the substantive ground for disqualification under Florida Rule of Criminal Procedure 3.230. The mere filing of a lawsuit against the judge does not constitute a ground for disqualification.

Id. at 604. The other reasons stated in May’s motion for disqualification were legally insufficient as well.

The contempt order

Shortly before the contempt hearing commenced, May’s counsel received a copy of the court’s order denying the motion to disqualify, which had been entered the day before. Counsel told the trial judge that she had informed May the prior evening that since there had been no ruling on the motion for disqualification, he was not required to be present at the hearing on the order to show cause. A brief recess was taken so that May could be summoned to the courtroom. May was unable to appear and the trial court denied counsel’s request for a continuance, ultimately finding May in. criminal contempt of court and ordering a jail sentence.

We reverse the judgment of criminal contempt because it was issued without May being present at the hearing. As the court stated in Tennyson v. Tennyson, 840 So.2d 377 (Fla. 1st DCA 2003):

Because criminal contempt proceedings are punitive in nature, alleged criminal contemnors are entitled to the same constitutional due process protections afforded other criminal defendants. Accordingly, the court may not, ordinarily, enter an adjudication in absentia. Though [Florida Rule of Criminal Procedure] 3.180 provides for exceptions to this general rule, none are applicable here.

Id. at 378 (citations omitted).

The fact that May received notice of the hearing, but still failed to appear, does not change the analysis as to whether his presence was required. For instance, in Bradley v. State, 420 So.2d 417 (Fla. 1st DCA 1982), in the presence of the State, Bradley and his counsel, the court issued a verbal order to show cause as to why Bradley should not be held in contempt for failing to provide handwriting exemplars. See id. at 417. A written order to show cause was subsequently issued and a hearing set. Bradley failed to attend the hearing and his counsel advised the court that she had not seen or heard from Bradley. The trial court proceeded with the contempt hearing over defense objection. See id.

On appeal, the court held that the trial court erred in finding that Bradley had “waived his right to be present by his absence.” Id. The court reasoned that Florida Rule of Criminal Procedure 3.840 entitled the defendant, among other things, to testify in his own defense and to present evidence of mitigating circumstances. See id., at 418.

There is no suggestion in the rule that proceedings may be had without the presence of the defendant. Rule 3.180(b) provides two exceptions whereby a criminal trial may proceed with the defendant absent: first, where the defendant is present at the beginning of the trial but thereafter voluntarily absents himself without leave of court; or, second, where the defendant is removed from the presence of the court because of his disruptive conduct.

Id. While the court recognized the disruption to orderly judicial administration caused by a defendant’s failure to appear for a contempt hearing after due notice, the court noted that the “issuance of an arrest warrant for failure to appear at the show cause hearing would have preserved both the dignity of the court and the basic constitutional rights of the defendant.” Id.

Likewise, in the instant case, none of the exceptions for proceeding in absentia were present. Accordingly, we reverse the judgment of contempt and remand for further proceedings.

AFFIRMED in part, REVERSED in part and REMANDED.

WARNER and GROSS, JJ„ concur.

      . The folly of counsel’s advice to May not to attend the show-cause hearing is evident. The hearing was duly noticed, and it was not only possible, but probable, that the experienced trial judge would have ruled on the motion to disqualify prior to commencing the hearing, as a judge cannot act in a case until an outstanding motion to disqualify has been ruled upon. See § 38.10, Fla. Stat. (2003). The attorney's erroneous advice needlessly disrupted the court.


author: KLEIN, J.

text:
    Robert PURCHASE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1371.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was charged by information with armed kidnapping, carjacking with a deadly weapon, and sexual battery with great force. He pled no contest to armed kidnapping and carjacking with a deadly weapon and appeals the trial court’s order denying his motion to withdraw his plea. We find no abuse of discretion in the trial court’s finding that appellant did not establish good cause to withdraw his plea.

Appellant also raises, for the first time on appeal, that the trial court did not have jurisdiction to accept his plea because his file contained a document entitled “no information.” He argues that this document was a nolle prosequi, which amounts to a dismissal or nullification of an indictment or information. State v. Vazquez, 450 So.2d 203 (Fla.1984); Childers v. State, 277 So.2d 594 (Fla. 4th DCA 1973) (defendant may not be tried under an information that has been nolle prossed, as that information is a nullity and cannot confer jurisdiction on the court).

The “no information” was filed after the information, and around the same time that the appellant pled no contest to the two charges which were listed in the “no information.” It was never mentioned in the proceedings below and, as we noted earlier, is being raised for the first time on appeal.

The parties have not cited, and we have not been able to find, any case law or rules in Florida defining the term “no information.” The term “no action,” on the other hand has been defined as the voluntary termination of proceedings by the state before an information is filed. Genden v. Fuller, 648 So.2d 1183, 1183 n. 1 (Fla.1994); Allied Fidelity Ins. Co. v. State for Use and Benefit of Dade County, 408 So.2d 756, 756 n. 1 (Fla. 3d DCA 1982) (“A ‘no action’ is a dismissal of the pending charges before an information or indictment has been filéd; a nolle prosequi is the dismissal of a pending information or indictment.”). A “no action” serves the purpose of letting a person who has been arrested know that an information will not be filed or an indictment will not be sought.

We do not agree with appellant that a “no information” is a nolle prosequi. From a grammatical standpoint a “no information” is the same as a “no action.” An action is a “civil or criminal judicial proceeding,” Black’s Law Dictionary 28 (7th ed.1990), and an information is a “formal criminal charge.” Id. at 783.

Our narrow interpretation of what can constitute a nolle prosequi is consistent with Wilson v. Renfroe, 91 So.2d 857 (Fla.1956), in which the prosecutor filed a motion to dismiss criminal charges which stated that an investigation showed that there was insufficient evidence to prove the case. Our supreme court rejected the defendant’s contention that the motion to dismiss was a nolle prosequi.

Affirmed.

POLEN and HAZOURI, JJ., concur.

      . We also know from experience that prosecutors use "no actions” and "no informa-tions” interchangeably to give notice that an information will not be filed.


author: PER CURIAM.

text:
    Kevin COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-286.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.

      Donnie Murrell, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kevin Coleman was convicted of first-degree murder in 1992, and is serving a life sentence with a minimum mandatory of twenty-five years. In March 2001, Coleman filed a second Rule 3.850 motion seeking post-conviction relief based on newly discovered evidence. While this motion was being considered by the trial court, a motion to recuse was filed by Coleman.

The trial court denied both motions in simultaneous filings in December 2002. The denials of these motions are addressed in this appeal. Because the motion to recuse should have been granted, we reverse the denial of the motion to recuse as well as the denial of the Rule 3.850 motion.

A motion to recuse must be granted by the trial court if it is legally sufficient. For a motion to recuse to be legally sufficient, it must meet technical requirements that it be in writing, “allege the facts and reasons relied on to show the grounds for disqualification,” include sworn affidavits by the party and attorney filing the motion, and be filed by the tenth day following discovery of the information providing grounds for recusal. Fla. R. Jud. Admin. 2.160; Carrow v. The Fla. Bar, 848 So.2d 1283, 1285 (Fla. 2d DCA 2003). One of the grounds on which a motion to recuse can be based is “that a party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.160(d)(1). If a motion to recuse is technically sufficient, and the facts alleged therein also “would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial from the judge,” the motion is legally sufficient and should be granted. Nunez v. Backman, 645 So.2d 1063, 1064 (Fla. 4th DCA 1994). In such a circumstance, the facts alleged are to be taken as true and their veracity should not be considered by the judge. State Farm Mut. Auto. Ins. Co. v. Penland, 668 So.2d 200, 204 (Fla. 4th DCA 1995).

Coleman timely filed a motion to recuse in writing, including the required sworn statements. Coleman’s alleged ground for recusal was that the trial judge had engaged in interviews with Palm Beach Post reporters prior to actually ruling on the Rule 3.850 motion, and informed those reporters of his impending decision while showing them a draft of the order. Coleman alleged that this conduct violated Canon 3(B)(7) of the Rules of Judicial Conduct, prohibiting the consideration of communications about pending cases occurring outside the presence of the parties. Based on this conduct, Coleman stated a fear that he could not receive a fair decision from a judge who considers media opinion and reaction during a case.

Reviewing the motion to recuse as described, Coleman met the technical requirements of legal sufficiency set out in Rule 2.160. We conclude that a reasonably prudent person taking the allegations as true could fear that by discussing the case with the media, the ability of the trial judge to provide Coleman with a fair and impartial decision on the Rule 3.850 motion was compromised. See Novartis Pharm. Corp. v. Carnoto, 840 So.2d 410 (Fla. 4th DCA 2003); United States v. Microsoft Corp., 253 F.3d 34 (D.C.Cir.2001); In re Boston’s Children First, 244 F.3d 164 (1st Cir.2001). Therefore, the motion to recuse was legally sufficient and should have been granted.

Because the motion to recuse should have been granted, the order denying the Rule 3.850 motion must also be vacated because it was entered after the motion to recuse was filed. See Fuster-Escalona v. Wisotsky, 781 So.2d 1063, 1066 (Fla.2000) (ruling on motion to dismiss while motion to recuse was pending violated Florida Statutes section 38.10 and Florida Rule of Judicial Administration 2.160(f) prohibiting further proceedings and requiring immediate ruling on recusal); Rogers v. State, 341 So.2d 196, 196 (Fla. 4th DCA 1976) (order entered after recusal is a nullity). As a result, this case is remanded for a successor judge to consider the Rule 3.850 motion.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

GUNTHER, WARNER and MAY, JJ., concur.


text:
    Robyn M. BATEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1878.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from the trial court’s denial of the defendant’s motion to modify her sentence, pursuant to Florida Rule of Criminal Procedure 3.800(c). The State correctly argues that the order is not ap-pealable. Lee v. State, 662 So.2d 731 (Fla. 2d DCA 1995). The appeal is therefore dismissed.

STEVENSON, SHAHOOD and MAY, JJ., concur.


text:
    Jerome GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4604.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Milton DONOSO, Appellant, v. Ellen REILLY, Appellee.
    No. 4D03-2003, 4D03-3014.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Richard A. Sherman, Sr. of Richard A. Sherman, P.A., Fort Lauderdale, and Jack A. Nieland of Law Offices of Lawrence J. Signori, West Palm Beach, for appellant.
    Michael S. Bendell of Michael Bendell, P.A., Boca Raton, for appellee.
   PER CURIAM.

Affirmed. See Kent v. Bucholc, 714 So.2d 671 (Fla. 4th DCA 1998).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Linda M. PRATER, Appellant, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellee.
    No. 3D03-1727.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.

      Linda M. Prater, in proper person.
    Shapiro & Fishman, Deerfield Beach, and Susan Minor, for appellee.
    Before LEVY, GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Appellant Linda M. Prater brings this appeal from an Order Ratifying Clerk’s Sale and Directing Issuance of Certificate of Title and Denying Defendant’s Objection to Sale. Although we are not unsympathetic to appellant’s rendering of her factual plight, we nevertheless affirm. In order to vacate a foreclosure sale, the trial court must find (1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud, or other irregularity in the sale. Mody v. California Fed. Bank, 747 So.2d 1016, 1017-18 (Fla. 3d DCA 1999) (citing Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966)). In this case, appellant is unable to meet these legal requirements. Accordingly, the order under review is hereby affirmed.


text:
    Tracey MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1230.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Frank A. Abrams, Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for Appellee.
    Before SCHWARTZ, C.J., and WELLS and SHEPHERD, JJ.
   PER CURIAM.

We have for review the denial by the trial court of Appellant’s Rule 3.850 Motion for Post Conviction Relief based on ineffective assistance of counsel. The trial court denied Miller’s motion after an evi-dentiary hearing at which Appellant was afforded a full and fair opportunity to present evidence on his behalf and cross-examine his trial counsel. We find that the decision of the trial court to deny the motion was supported by competent substantial evidence. Blanco v. State, 702 So.2d 1250 (Fla.1997).

Affirmed.


text:
    Varian V. SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1044.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Varían V. Scott, in proper person.

      Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Varían V. Scott appeals an order denying his motion for discharge under the speedy trial rule. We treat the appeal as a petition for writ of prohibition and deny it on the merits. The subsequent plea bargain entered into by defendant-appellant Scott waived his claim of a violation of the speedy trial rule. Monge v. State, 286 So.2d 34 (Fla. 3d DCA 1973). We need not reach the alternative argument that defense counsel had obtained continuances which waived the speedy trial period in any event.

Affirmed.


author: COPE, J.

text:
    Jose REYNA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3432.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Christ, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Venus Zilieris, Certified Legal Intern, for appellee.

      Before COPE, SHEVIN and WELLS, JJ.
   COPE, J.

On this appeal, Jose Reyna challenges the constitutionality of paragraph 985.227(l)(b), Florida Statutes (2001). We affirm.

Defendant-appellant Reyna was charged with burglary of an occupied dwelling. At the time of the crime, the defendant was sixteen years old.

Exercising its discretion under paragraph 985.227(l)(b), Florida Statutes, the State elected to direct file an information against the defendant, so that the defendant was prosecuted as an adult. The defendant moved to dismiss the amended information, arguing that paragraph 985.227(l)(b) and subsection 985.227(4), Florida Statutes were unconstitutional. The defendant argued that the statute violated Florida’s separation of powers doctrine and deprived the defendant of the equal protection of the laws.

The trial court denied the motion to dismiss. The defendant entered into a plea bargain whereby he entered a plea of no contest in exchange for one year of probation and a withhold of adjudication. As part of the plea bargain, the defendant reserved his right to appeal the trial court’s denial of his motion to dismiss.

Although the defendant correctly states that the direct file statute has been amended over the years, we conclude that State v. Cain, 381 So.2d 1361 (Fla.1980), remains dispositive and mandates rejection of the defendant’s claim. See also Johnson v. State, 314 So.2d 573, 576 (Fla.1975); Brazill v. State, 845 So.2d 282, 286-89 (Fla. 4th DCA 2003); Grier v. State, 605 So.2d 503, 504 (Fla. 2d DCA 1992); Jones v. State, 443 So.2d 434 (Fla. 5th DCA 1984).

Affirmed.

      . The crime date was March 20, 2002.

      . The defendant also argued that paragraph 985.227(l)(a), Florida Statutes was unconstitutional. That provision applies to a child who was fourteen or fifteen years of age at the time of the offense. Since the defendant was sixteen at the time of the offense, paragraph 985.227(l)(a) does not apply to him. Thus, we affirm the denial of that part of the defendant’s motion for lack of standing. See State v. Millington, 377 So.2d 685, 687 (Fla.1979); M.Z. v. State, 747 So.2d 978, 979 (Fla. 1st DCA 1999).


text:
    R.J., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-2304.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Russell Shephard and Marc Anthony Douthit, Miami, for appellant.
    Calianne P. Lantz, Assistant District Legal Counsel, Department of Children and Family Services; Hillary S. Kambour, Program Attorney for Guardian Ad Litem Program, for appellee.

      Before SCHWARTZ, C.J., COPE and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See K.B. v. Dep’t of Children & Families, 834 So.2d 368 (Fla. 5th DCA 2003); F.A.F. v. Dep’t of Children & Family Servs., 804 So.2d 616 (Fla. 3d DCA 2002); J.M. v. Florida Dep’t of Children & Families, 762 So.2d 1029 (Fla. 3d DCA 2000).


text:
    Rochelle RASHOTSKY, Appellant, v. Everett RASHOTSKY, Appellee.
    No. 3D03-618.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Ira L. Dubitsky, Miami, for appellant.
    Paul Morris, Miami, for appellee.
    Before COPE, LEVY, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Pedraja v. Garcia, 667 So.2d 461 (Fla. 4th DCA 1996); Besade v. Besade, 430 So.2d 927 (Fla. 3d DCA 1983).


text:
    AD’S ENTERPRISES, LLC., a Florida Limited Liability Company, Appellant, v. OCEAN BANK, and Peter F. Lue, et al., Appellees.
    Nos. 3D03-2240, 3D03-2231.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Arnaldo Velez, Coral Gables, for appellant.
    Louis K. Nicholas, Miami; Aragon, Burlington, Weil, Schwiep, Kaplan & Blonsky and Kevin Kaplan, Miami, for appellees.
    Before SCHWARTZ, C.J., COPE and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Garrote v. Ocean Bank, 713 So.2d 1095 (Fla. 3d DCA 1998); see Gardner v. Guldi, 724 So.2d 186 (Fla. 5th DCA 1999).


text:
    Orville D. PARKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1101.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.

      Orville D. Parker, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for Appellee.
    Before COPE, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Porter v. State, 478 So.2d 33 (Fla.1985).


text:
    Timothy McCULLOCH, individually, and on behalf of all others similarly situated, Appellants, v. ACADEMIC MANAGEMENT SERVICES CORPORATION, f/k/a Educational Finance Group, Inc., a foreign corporation, PNC Bank, N.A., a foreign corporation, BAC Inc., a Florida corporation, and Marcus Katz, an individual, Appellees.
    No. 3D03-1686.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Charles D. Franken (Plantation), for appellants.
    Mayer Brown Rowe & Maw and Alan N. Salpeter and Mark D. Brookstein (Chicago)and Aragon, Burlington, Weil, Schwiep, Kaplan & Blonsky and Paul J. Schwiep, Miami, for Academic Management Corporation.
    Ballard Spahr Andrews & Ingersoll and Darryl J. May (Philadelphia) and Shutts & Bowen and Don A. Lynn, Miami, for PNC Bank.
    Ford, Marrin, Esposito, Wittmeyer & Gleser and John J. Wittmeyer, III and David A. Beke (New York)and Gallwey, Gillman, Curtis, & Vento and Stephen B. Gillman, Miami, for Marcus A. Katz.
    Greenberg Traurig and Elliott E. Scherker, for BAC Inc., appellees.
    Before FLETCHER, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Doe v. America Online, Inc., 783 So.2d 1010 (Fla.2001); McCulloch v. PNC Bank Inc., 298 F.3d 1217 (11th Cir.2002).


text:
    Angela SHEPHERD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1163.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Woodward & Reizenstein, and Philip L. Reizenstein, Miami, for appellant.

      Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Sonya WRIGHT, et al., Appellant, v. AMERICAN MULTI-CINEMA, INC., Appellees.
    No. 3D02-3369.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Felix J. Mendigutia, for appellants.
    George, Hartz, Lundeen, Fulmer, John-stone, King & Stevens, and Esther E. Galicia, Fort Lauderdale, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Llosa v. Citibank Mort. Corp., 860 So.2d 1018 (Fla. 3d DCA 2003); Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572 (Fla. 1st DCA 2003); Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001); O'Vahey v. Miller, 644 So.2d 550 (Fla. 3d DCA 1994).


text:
    Miguel SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1126.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Miguel Sanchez, in proper person.
    Charles J. Crist, Jr., Attorney General, and Melissa Vaughan Rubin, Assistant Attorney General, for appellee.
    Before GODERICH, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Based on the State’s proper confession of error, we reverse and remand for resen-tencing as the defendant had a right to be present and represented by counsel at his resentencing following his successful 3.850 challenge. Jordan v. State, 853 So.2d 558 (Fla. 3d DCA 2003); Barcelo v. State, 774 So.2d 895 (Fla. 4th DCA 2001). The remaining point raised by the defendant lacks merit.

Reversed and remanded for resentenc-ing.


text:
    Rogelio GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3252.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Rogelio Garcia, in proper person.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Based on the State’s concession, on remand the defendant’s sentence shall be corrected to delete the three (3) year minimum mandatory sentence attached to defendant’s manslaughter conviction and to resentence him to a straight term of nineteen (19) years as an habitual felony offender. In all other respects, the order denying defendant’s 3.850 motion is affirmed.


text:
    Daniel GARNICKI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1660.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Darlene Calzón Barror, Tampa, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta Mandel, Assistant Attorney General, for appellee.
    Before COPE, LEVY and SHEPHERD, JJ.
   PER CURIAM.

Daniel Garnicki appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, after an evidentiary hearing. We conclude that the trial court’s order is supported by the record and properly applies the standards of Strickland v. Wash ington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Affirmed.


text:
    K.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2671.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., COPE and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Aboyoun v. State, 842 So.2d 238 (Fla. 2d DCA 2003); Hercule v. State, 655 So.2d 1256 (Fla. 3d DCA 1995); Nix v. State, 604 So.2d 920 (Fla. 1st DCA 1992).


author: HAWKES, J.

text:
    M.H., mother of O.O. and S.B., children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-0353.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.

      Ann Marshall-Jones, Legal Services of North Florida, Inc., Tallahassee, for Appellant.
    Avron Bernstein, Dept, of Children and Families, Tallahassee, for Appellee.
   ON CLARIFICATION

HAWKES, J.

The opinion issued on October 28, 2003 is withdrawn and this opinion is substituted in its place.

Appellant appeals from a final order terminating her parental rights pursuant to section 39.806(l)(c), Florida Statutes (2001). As grounds, Appellant argues no competent, substantial evidence supported the trial court’s finding that Appellant engaged in conduct towards her children that demonstrated her continuing involvement would threaten their lives, safety, well-being, or physical, mental, or emotional health, irrespective of the provision of services. Alternatively, Appellant argues termination of her parental rights was not the least restrictive means of protecting her children from serious harm. We find Appellant’s arguments to be meritorious, and reverse.

The Department of Children and Families (DCF) cross-appeals, arguing termination of Appellant’s parental rights was proper under section 39.806(l)(c), Florida Statutes, but that the trial court erred by not also terminating Appellant’s parental rights pursuant to section 39.806(l)(e), Florida Statutes (2001). Finding no competent, substantial evidence to support termination of parental rights pursuant to section 39.806(l)(e), Florida Statutes, and noting, moreover, that DCF failed to make any effort to reunify the family, we affirm the issue raised on cross-appeal without discussion.

The evidence is undisputed. Before DCF became involved with this family, Appellant voluntarily placed her children in the Florida Baptist Children’s Home (FBCH) and, on the same day, admitted herself to an inpatient drug treatment facility. When Appellant brought the children to FBCH, they were “very taken care of,” with no signs of abuse or neglect. Testimony regarding subsequent, supervised visits between Appellant and her children after DCF became involved, expressly provided that contact with Appellant was not harmful to her children. Appellant was “very motherly,” “had all the right stuff,” and “the bond was there.” The children were excited over visits, and the visits were “encouraging,” “loving,” and “bonding for the entire family.” Appellant brought gifts and money, sent cards and letters, and always'acted appropriately with her children.

Subsequently, DCF was informed by a professional service provider, through whom Appellant had attended self-referred, inpatient and aftercare drug treatment, that Appellant needed additional inpatient treatment. Despite being so informed, DCF did not make a referral for Appellant to receive the treatment. When Appellant requested a referral for a TASC evaluation, DCF declined to make that referral as well and, instead, told her to speak with her attorney. Although DCF knew Appellant had transportation difficulties attending visitations and aftercare drug treatment, DCF informed Appellant that transportation was her responsibility. Only later did DCF relent, and then offered transportation only to collect urinalyses. In fact, the only “assistance” DCF provided Appellant was a referral for random urinalyses and “closure” counseling, so Appellant’s children could be prepared for termination of her parental rights.

Ultimately, DCF sought to terminate Appellant’s parental rights because of her drug addiction. However, it is well settled that a parent’s drug addiction, standing alone, is an insufficient ground upon which to terminate parental rights. See C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 523 (Fla. 1st DCA 2002) (stating substance abuse alone does not establish “prospective neglect”); see also In re C.V.T., 843 So.2d 366, 368 (Fla. 2d DCA 2003) (holding egregious conduct is not a basis for termination of parental rights based on past drug use alone, without connecting the drug use to abuse, neglect or specific harm to the child); B.C. v. Dep’t of Children & Families, 846 So.2d 1273, 1275 (Fla. 4th DCA 2003) (holding evidence insufficient to support dependency where, although parent had drug and alcohol problem, there was no evidence child suffered harm or injury — physical, mental or emotional — as consequence of parent’s alcohol and drug use, and no evidence parent failed to meet child’s needs while child was in his care).

Rather, to terminate parental rights under section 39.806(l)(c), three sequential evidentiary requirements must be met.

First, the trial court must find the children’s life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services. See In re C.W.W., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001). “In essence, the trial court must find that any provision of services would be futile or that the child[ren] would be threatened with harm despite any services provided to the parent.” Id.; see also N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 1002 (Fla. 1st DCA 2003).

Second, if the court finds the children would be threatened with harm, despite the provision of services, DCF must then prove there is no reasonable basis to believe the parent will improve. See F.L. v. Dep’t of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003); see also L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002) (noting prospective neglect or abuse may be found if a parent is so afflicted that no reasonable basis exists for improvement). Where the record demonstrates a reasonable basis exists to find the parent’s problems could be improved, parental rights cannot be terminated. See L.B., 835 So.2d at 1195.

Finally, DCF must show termination is the least restrictive means of protecting the children from serious harm. See id. at 1195. The least restrictive means test in the context of termination of parental rights requires those measures short of termination be utilized if such measures will permit the safe reestablishment of the parent-child bond. See id. at 1196 (holding termination of mother’s parental rights not least restrictive means where father working on case plan, and no evidence mother’s visits were harmful); Gaines v. Dep’t of Children & Families, 711 So.2d 190 (Fla. 5th DCA 1998) (holding termination of parental rights not least restrictive means, in part, where court did not consider relative placement before terminating parental rights).

In this case, none of these requirements were met. The record contains no evidence that Appellant’s involvement with her children threatened them with harm of any kind. Although Appellant is addicted to drugs, there was no evidence that her children suffered harm as a result of her addiction, nor that Appellant failed to meet their needs while they were in her care.

Similarly, there was no evidence to establish a reasonable basis to believe Appellant would not improve. Appellant sought treatment before DCF became involved, continued to seek help thorough DCF and, when DCF failed to make necessary, requested referrals, again sought treatment on her own. Appellant ensured her children’s safety and care by voluntarily placing them with FBCH, so she could obtain inpatient treatment. Although Appellant suffered two relapses over a period of approximately one year, she immediately self-referred into another inpatient facility. This indicates Appellant’s strong desire to overcome her addiction and parent her children, and demonstrates a reasonable basis to believe Appellant’s problems could be improved, despite DCF’s utter failure to provide her with requested, necessary services.

Finally, there was no evidence that termination of Appellant’s parental rights was the least restrictive means of protecting her children. At least five relatives in Alabama were willing to take the children. The general master, in making her recommendations to the trial court, did not consider three of the placements. The other two were rejected on grounds that one was an “eleventh hour” relative who appeared by phone instead of in person, and the second was not available when the general master called on the day of trial. Thus, the general master concluded, these relatives were not available “in the truest sense and spirit of the statute.” Considering Florida’s preference for relative placements where possible, these are insufficient grounds upon which to base a determination that these relatives were unavailable or inappropriate.

However, even if the grounds were valid, they lack record support. The DCF investigator testified he spoke with several relatives, including the two rejected by the general master, immediately after DCF became involved in the case. Each relative expressed a willingness to take the children, and he gave their names to the DCF service worker. There was no evidence that any of these relatives were inappropriate. Significantly, the DCF service worker testified she did not explore any relative placement, despite being provided with the names of these relatives, including the relative who testified by phone, from the beginning of the case. Clearly, under these facts, termination of Appellant’s parental rights was not the least restrictive means of protecting the children.

Because the record is devoid of evidence to support termination of Appellant’s parental rights pursuant to section 39.806(l)(c), Florida Statutes, the order is REVERSED and the case REMANDED, with immediate issuance of the mandate.

WOLF, C.J., and BROWNING, J„ CONCUR.

      . Treatment Alternative to Street Crime.

      . We note that, before termination can occur under any statutory provision, the trial court must also conclude termination is in the children's manifest best interests. See § 39.810, Fla. Stat. (2001).


author: JOHNSON, J.,

text:
    STATE of Louisiana v. Wilbert RIDEAU.
    No. 2003-KK-3203.
    Supreme Court of Louisiana.
    Jan. 30, 2004.
   In re Rideau, Wilbert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, Nos. 15321-01; to the Court of Appeal, Third Circuit, No. KW 03-01313.

Writ denied.

TRAYLOR, J., recused.

JOHNSON, J.,

would grant the writ application to consider whether the principles of double jeopardy would preclude a fourth trial of this defendant. The issue has never been considered by a Louisiana court, although the United States Supreme Court and other courts have barred re-trial on double jeopardy grounds when the prosecution has engaged in willful and deliberate misconduct.


author: L CALOGERO, Chief Justice

text:
    Princess MARTIN, Individually and On Behalf of the Estate of Isaiah Martin, Carrie N. Martin, Calvin Martin, Marilyn Baldwin, Sharlyn Taylor, Kenneth Martin, Janet Martin, Murriel Jackson, Johnny Martin, Larry Martin, Michael Martin, and Terry W. Martin v. COMM-CARE CORPORATION d/b/a Community Care Center of Ruston.
    No. 2003-C-3188.
    Supreme Court of Louisiana.
    Feb. 6, 2004.
   On Application for Writ of Certiorari to the Court of Appeal Second Circuit, Parish of Lincoln.

Prior report: La.App., 859 So.2d 217.

| Writ denied.

CALOGERO, C.J., dissents from denial with reasons.

L CALOGERO, Chief Justice

dissents from the writ denial.

I continue to believe that the majority’s resolution of this prescription issue in LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, was wrong and that application of the faulty analysis in LeBreton serves in this case to cause a near-unconscionable result denying the rights of the survivors of the deceased asserted-victim of malpractice. I would grant and docket to reconsider the issue resolved in LeBreton. There is no conflict between the provisions of Louisiana Civ.Code art. 3462 and the provisions of La.Rev.Stat. 40:1299.47(A)(2)(a), as both provisions can be harmonized with the result of each provision being given full effect. As I recited in my dissent in Washington v. Fustok, 2001-1601 (La.9/21/01), 797 So.2d 56, “the purpose for denying claims that are prescribed is to avoid denying the defendant a timely opportunity to investigate a matter and prepare a defense.” Id. As in Washington, that purpose is not served here, where the defendant was sued less than a year from the death of plaintiffs’ decedent.


author: hPER CURIAM.

text:
    In re Chester John CASKEY, Jr.
    No. 2004-B-0168.
    Supreme Court of Louisiana.
    Feb. 20, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, Chester John Caskey, Jr., an attorney licensed to practice law in Louisiana. For his misconduct, respondent proposed that he be suspended from the practice of law for six months, fully deferred, subject to a one-year period of supervised probation with conditions. The Office of Disciplinary Counsel (“ODC”) concurred in respondent’s petition, and the disciplinary board recommended the proposed discipline be accepted.

UNDERLYING FACTS

Respondent retained attorney’s fees in his client trust account for a period of several months in 1997 and 1998, thereby commingling his funds with those of his clients. Respondent’s trust account records for that time period reveal no evidence of any conversion of client funds.

DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

Prior to the institution of formal charges, respondent filed a petition for consent discipline, admitting his conduct violated Rule 1.15(a) (safekeeping property of clients or third persons) of the Louisiana Rules of Professional Conduct. For his | ¡/misconduct, respondent proposed that he be suspended from the practice of law for six months, fully deferred, subject to a one-year period of supervised probation with the condition that quarterly audits of his trust account are to be performed by a CPA during the period of probation. The ODC concurred in respondent’s petition for consent discipline.

Disciplinary Board Recommendation

The disciplinary board found that respondent’s conduct was negligent and violated a duty owed to his clients. Potential injury was present in that client funds were commingled with attorney’s fees, and withdrawals were made from the trust account. However, no actual injury is apparent from the record. The baseline sanction for such misconduct is a suspension from the practice of law.

The board determined the sole aggravating factor present is substantial experience in the practice of law (admitted 1978). In mitigation, the board recognized the absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal problems, full and free disclosure to disciplinary counsel, and character or reputation. After reviewing the prior jurisprudence of this court dealing with misconduct similar to respondent’s, the board determined the proposed consent discipline is appropriate. Accordingly, the board recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to a one-{year3 period of supervised probation governed by the conditions set forth in the petition for consent discipline.

DISCUSSION

As the petition for consent discipline demonstrates, respondent has improperly handled his client trust account, in violation of Rule 1.15 of the Rules of Professional Conduct. However, it is undisputed that there is no evidence of conversion of client funds, nor is there any evidence respondent’s conduct caused any harm to his clients. Given these facts, and in light of the mitigating factors present, we conclude the proposed fully deferred suspension is appropriate.

Accordingly, we will accept the petition for consent discipline.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that Chester John Caskey, Louisiana Bar Roll number 3981, be suspended from the practice of law in Louisiana for a period of six months. It is further ordered that said suspension shall be fully deferred, subject to respondent’s successful completion of a one-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. Any violation of the conditions of probation or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Standard 4.12 of the ABA's Standards for Imposing Lawyer Sanctions provides that suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.

      . Of particular note is In re: Hernandez, 00-1283 (La. 10/6/00), 770 So.2d 330, in which the lawyer was suspended for six months, fully deferred, for failing to remove legal fees from his client trust account.


author:
hWEIMER, Justice.
     11 KNOLL, Justice,

text:
    Earline HUTCHINSON v. KNIGHTS OF COLUMBUS, COUNCIL NO. 5747, Rebel Amusements Rides, Inc., and St. Paul Fire and Marine Insurance Company.
    No. 2003-C-1533.
    Supreme Court of Louisiana.
    Feb. 20, 2004.

      Thomas R. Hightower, Jr., PLC, Thomas R. Hightower, Lafayette, Jr., Patrick Wade Kee, for applicant.
    The Law Offices of Darleen M. Jacobs, Darleen Marie Jacobs, Alfred A. Sarrat, Jr., Robert A. Preston, Jr., New Orleans, for respondent.
   hWEIMER, Justice.

We granted a writ in this matter to consider whether, in a case involving a trip and fall at a festival, the court of appeal’s reversal of a summary judgment was contrary to statutory provisions and established jurisprudence. After review, we conclude the court of appeal did not err.

FACTS AND PROCEDURAL BACKGROUND

During March of 1998, David M. and Earline Hutchinson visited the Crawfish Festival in Chalmette, Louisiana. They entered the festival grounds between two amusement rides and exited the same way. As they were leaving, Mrs. Hutchinson tripped and fell on electric cables that were being used to power the rides.

Mrs. Hutchinson filed this personal injury action against the Knights of Columbus, Council No. 5747(KCs); Rebel Amusement Rides, Inc. (Rebel); and St. Paul Fire and Marine Insurance Company (St.Paul). Her petition alleges the defendants were negligent in allowing the electric cable lines that serviced an | ^amusement ride to cross a “pedestrian walkway” without being painted yellow or without proper caution signs in the area where the cables were located.

After taking the plaintiffs deposition, defendants moved for summary judgment. In support of their motion, they filed portions of plaintiffs deposition testimony. Mrs. Hutchinson stated she entered and exited the festival grounds on the pavement “between two rides.” She looked for an entrance but did not see one; she and her husband entered where they saw other people going through the “ride areas.” When exiting, she tripped on a “bundle of [black] cables” that were piled together and were running across the “path of the pavement.” She did not know if the cables were “piled together ... sitting on top of each other” or were running next to each other.

Also in support of their motion for summary judgment, defendants filed an affidavit by Korklyn Thibodeaux, Rebel’s office manager. He attested the area where plaintiff fell “was not a pedestrian walkway, but rather was an area designated for the placement of electrical ... cables, necessary to provide electrical power to the midway.” Thibodeaux further stated there were “sufficient designated walkways at the Crawfish Festival to allow for ingress and egress ... including a designated entrance and exit.” Most importantly, the affidavit states “[t]hat at the time of the alleged fall, barricades were in place for the purpose of restricting access to the area where plaintiff claims to have sustained injury-[I]n order for plaintiff to have accessed the area ... she would have had to circumvent the barricade, which restricted access to the non-pedestrian area.”

In response to defendants’ motion and the accompanying affidavit, plaintiff filed affidavits that she and her husband executed. The Hutchinsons stated they looked for an entrance to the fairgrounds and, seeing none, followed others onto the fairgrounds between the two rides. Both stated: “We did not have to cross any barricades to enter or exit the festival. The barricades I saw surrounded individual rides. There |3were no barricades across any of the pedestrian pathways. There was nothing to keep anyone from walking between any of the rides.”

The plaintiff and her husband also attested to statements made at the scene of the fall by Charles Deubler, the KCs’ Grand Knight and festival safety coordinator. Mr. Hutchinson stated: “Charles Deubler Sr. came to the scene and ... said [’] I told these people about these wires. I am going to stand here until someone comes and covers up these wires so no one else will trip on them.’ ” Mrs. Hutchinson stated: “Charles Deubler Sr. came to the scene and ... said the cables should not have been where they were. The cables should have been covered and out of . the pathway.”

Additionally, in opposition to defendants’ motion for summary judgment, plaintiff filed excerpts from her deposition that corroborated the references to Deubler’s alleged statements contained in her affidavit. In her deposition she testified the safety coordinator “was fussing about” the cables. “He said they ... shouldn’t have been there, they should be covered and out of ... the pathway.” Plaintiff stated Deu-bler told her he had been safety coordinator for 18 years and that he had to “make sure that everything is safe and no one gets injured.”

Defendants, in turn, responded to the plaintiffs opposition by filing an affidavit by Deubler. He, too, stated the area where Mrs. Hutchinson fell had been “designated” as the area for the electrical cables and that there were barricades cordoning off the area of the fall from the public which plaintiff would have had to “.circumvent” in order to enter and exit there. Further, Deubler admitted going to the scene of the fall but attested “[t]hat the electrical cords, wires, and/or cables complained of by plaintiff were properly laid out in the designated area in a neat and safe fashion.” (Emphasis supplied.) Deubler’s description of the cables — that the cables posed no safety hazard — is contrary to the admission the Hutchinsons claim he made — that the cables were not in a safe position. However, Deubler’s affidavit does |¿not specifically deny making the statements attributed to him by the Hutchinsons at the scene of the accident.

Despite the fact the issue of barricades was first raised in Thibodeaux’s affidavit, after plaintiffs deposition, the trial court found that “[although plaintiff attempted to present an affidavit on behalf of herself, the Court found same to be totally self-serving, in contradiction of sworn deposition testimony and therefore, disregarded.” Apparently on the ground that defendants’ motion for summary judgment was insufficiently opposed, the trial court granted the motion.

The court of appeal rejected defendants’ complaint that the plaintiffs affidavit was inconsistent with her deposition testimony. Concluding there were genuine issues of material fact disputed by the parties, the court of appeal reversed the summary judgment and remanded the case for further proceedings.

DISCUSSION

Summary judgment:

Defendants’ threshold argument to this court is two-fold: first, that the court of appeal erred in considering the plaintiffs affidavit because the issue of the affidavit’s admissibility was not properly before that court; and second, that the plaintiffs affidavit contradicted her deposition testimony and was correctly disregarded by the trial court according to the jurisprudence.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis supplied.) LSA-C.C.P. art. 966(B). Affidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal. LSA-C.C.P. art. 966; Hopper v. Crown, 560 So.2d 890, 892 (La.App. 1 Cir.1990). Mrs. Hutchinson’s affidavit, filed into the record as part of her opposition to defendants’ motion for summary judgment, was part of the record on appeal which the court of appeal could consider. Thus, there was no “admissibility” question on appeal as defendants now assert.

Further, defendants’ assertion that it was necessary for plaintiff to specifically urge as error in the court of appeal the trial court’s disregarding of her affidavit is without merit. We agree with plaintiff that her assignment of error challenging the summary judgment as improperly granted was broad enough to encompass the argument that her affidavit was improperly disregarded. In its de novo review of the record, the appellate court was free to look at the evidence afresh and decide for itself whether to disregard the affidavit, without deference to what the trial court did in this regard. Thus, the first prong of defendants’ threshold argument is without merit.

Nor is there merit to the second prong of defendants’ threshold argument: that plaintiffs affidavit contradicted her deposition testimony. The court of appeal correctly analyzed the allegedly conflicting statements, as follows:

Specifically, the defendants complain that, in her deposition, the plaintiff testified that she entered and left the festival “between two rides” and that, in her affidavit, the plaintiff states that she entered on a “pedestrian walkway”.[] Actually, the plaintiffs affidavit specifically states that she and her husband “walked into the festival between two rides”. Thus, the affidavit and the deposition are not inconsistent.

Hutchinson v. Knights of Columbus, Council No. 5747, 02-1817, p. 3 n. 1 (La.App. 4 Cir. 5/7/03), 847 So.2d 665, 667 n. 1.

Despite this analysis by the appellate court, in brief to this court defendants rely on a statement in George v. Dover Elevator Company, 02-0821, pp. 4-5 (La.App. 4 Cir. 9/25/02), 828 So.2d 1194, 1197, writ denied, 02-2641 (La.12/13/02), 831 So.2d 992, that an inconsistent affidavit offered only after the filing of a motion for summary judgment is insufficient to create a genuine issue of material fact where no justification for the inconsistency is offered. Although this is a correct statement of the jurisprudence cited in George, it is inapplicable where the affidavit and the deposition testimony are not inconsistent. Thus, the trial court should not have rejected plaintiffs affidavit. Material facts:

In 1997, LSA-C.C.P. art. 966 was amended to alter the burden of proof in summary judgment proceedings. Under the amended statute, the initial burden of fyproof remains with the mover to show that no genuine issue of material fact exists. However, if the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610.

Even if one were to consider Mrs. Hutchinson’s use of different terms (“pe: destrian pathway” versus “between two rides”) as supportive of defendants’ argument, significant support for the appellate court’s conclusion that there are genuine issues as to material facts .is found in contradictions between the Hutchinsons’ affidavits and the affidavit of safety coordinator Deubler. As noted previously, Deu-bler’s description of the cables in his affidavit is contrary to the admission the Hutchinsons claim he made. The Hutchin-sons state the KC safety coordinator told them the pathway should have been clear of uncovered cables. If the Hutchinsons’ statements are true, Deubler made an admission that a hazardous condition existed. However, whether the Hutchinsons’ statements ultimately prove to be credible is a determination for the factfinder, not to be determined on the basis of competing affidavits.

It is impossible to ascertain, from the record presently constituted, whether the distance between the rides was so narrow that pedestrians were alerted not to pass or whether the area was open such that passage was invited. Plaintiff, in her affidavit and her deposition, swore Deubler referred to the area as a “pathway,” indicating pedestrian access was invited. The Hutchinsons stated they followed others through the area, an additional indication this area was perceived to be a pedestrian pathway. '

Positioning barricades to prevent pedestrians from traversing an area represents |Ra far different situation from one which involves no barricades. Positioning of barricades to prevent pedestrian passage in an area may warn that the area represents a potentially hazardous area to pedestrians. Nevertheless, diametrically divergent facts regarding the use of barricades emerge from a comparison of the competing affidavits. Defendants’ affiants swear barricades prevented access to the area of the fall, requiring the plaintiff to circumvent the barricades to access the area of the fall. Plaintiffs affiants swear the barricades were not positioned to prevent access.

A trial judge cannot make credibility determinations on a motion for summary judgment. A party seeking a summary judgment is entitled to a favorable judgment only if “there is no genuine issue as to a material fact ” and, thus, the “mover is entitled to judgment as a matter of law.” (Emphasis added.) LSA-C.C.P. art. 966(B). The credibility of a witness is a question of fact. Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236. The sworn affidavits of the plaintiff and her husband cannot be evaluated to determine whether they are credible at the motion for summary judgment stage.

In our review of the lower courts’ actions, we simply cannot say as a matter of law, with the facts at issue still unresolved, that the plaintiff is not entitled to present her case to a factfinder at a trial. Although the standard for granting a motion for summary judgment no longer encompasses a presumption in favor of trial on the merits, a trial is designed to evaluate the facts when credibility is at issue.

| sDefendants’ duty:

In the instant case, the trial court stated that “defendants did not violate any duty owed to plaintiff under the facts of this case.” The trial court judge based this conclusion on his findings that plaintiff “voluntarily” entered an area, not designated as a walkway, where the presence of electric cables was “open and obvious.”

It is accurate to state that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Pitre v. Louisiana Tech University, 95-1466, 95-1487, p. 11 (La.5/10/96) 673 So.2d 585, 591; see also, Williams v. Leonard Chabert Medical Center, 98-1029, p. 8 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 211, writ de nied, 00-0011 (La.2/18/00), 754 So.2d 974. Specifically, in a trip and fall case, the duty is not solely with the landowner. A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. Williams, 98-1029 at 8, 744 So.2d at 211. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not hable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner. Id.

However, as the court of appeal in the instant case noted, whether a condition is unreasonably dangerous requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (8) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether it | mis dangerous by nature. Hutchinson, 02-1817 at 4-5, 847 So.2d at 668. From the affidavits in the record, a genuine issue of material fact remains as to whether a tripping hazard extended through a pedestrian pathway.

Our decision to affirm the court of appeal in no way suggests that those who sponsor and operate festivals and fairs are the insurers of the safety of those who attend. Throughout Louisiana, those who sponsor and operate fairs and festivals provide a valuable service to the host communities and to various charities by way of social and economic benefits. The duty sponsors and operators owe to patrons of their events is one of reasonable care, commensurate with the potential dangers posed by their operations. The concept was aptly explained many years ago, as follows:

It is the well settled general rule that the proprietor of a place of amusement is not an insurer of the safety of his patrons.... He is bound to exercise only the degree of care that would be expected of an ordinarily careful and prudent person in his position, and his duty is fulfilled when he makes the place as little dangerous as such a place can reasonably be made, having regard to the contrivances necessarily used in conducting such a place.

Sistrunk v. Audubon Park Natatorium, 164 So. 667, 669 (Ct. of App. Orleans 1935).

Our decision to affirm at this stage of the proceedings is no indication as to which party should ultimately prevail. As noted, the defendants do not owe á duty to guard against open and obvious dangers in areas where pedestrians should not tread, and patrons of festivals and fairs, alert to the necessarily temporary and makeshift nature of such operations, have a duty to observe what can and should be seen and act accordingly to protect themselves. This being said, however, one cannot make credibility determinations in a motion for summary judgment as the trial court did in this case.

[^CONCLUSION

The conflicting affidavits establish genuine issues of material fact as to whether precautions should have been taken with respect to the positioning of the cables and whether the plaintiff traversed an area off limits to pedestrians.

The court of appeal exercised its proper judicial function and did not decide these matters based on the conflicting statements contained within the existing record. We find no error in the court of appeal’s reversal and remand.

AFFIRMED.

KNOLL, J., dissents and assigns reasons.

11 KNOLL, Justice,

dissenting.

For the following reasons, I respectfully disagree with the majority opinion. In my view, the present case does not rise or fall on whether barricades were present or whether the wires were covered. I find the trial court properly granted summary judgment as a matter of law because there is an absence of factual support for an essential element of plaintiffs claims and she has not shown she will satisfy her evidentiary burden of proof at trial. This is precisely why summary judgment is now favored in law.

It is well established that a summary judgment is appropriate if the moving party shows there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. PROC. ANN. art. 966(B). It is likewise well understood the movant’s burden on the motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court there is an absence of factual support for one or more elements essential to the adverse party’s claim. La.Code Civ. Proc. Ann. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment is appropriate. La.Code Civ. PROC. Am art. 966(C)(2). Applying those codal standards, we have held summary | ¡Judgment is appropriate when the plaintiff has failed to produce factual support sufficient to establish that he would satisfy his evidentiary burden at trial. Shelton v. Standard/700 Assoc., 01-0587 (La.10/16/01), 798 So.2d 60, 66.

In the present case, in order to prevail at trial the plaintiff, inter alia, has the burden of proving the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises. See Kerry v. Basco, 96-289 (La.App. 3 Cir. 10/9/96), 687 So.2d 420, 422; Morell v. City of Breaux Bridge, 94-1378 (La.App. 3 Cir. 5/31/95), 660 So.2d 882.

The duty which a landowner owes to persons entering his property is governed by a standard of reasonableness, and a potentially dangerous condition that should be obvious to all is not unreasonably dangerous. Butzman v. Louisiana Power and Light Co., Inc., 96-2073 (La.App. 4 Cir. 4/30/97), 694 So.2d 514. Where a risk of harm is obvious, universally known and easily avoidable, the risk is not unreasonable. Id.; Henshaw v. Audubon Park Com’n, 605 So.2d 640 (La.App. 4 Cir.), writ denied, 607 So.2d 570 (La.1992).

While the “open and obvious” argument suggests a disguised application of contributory negligence or assumption of the risk, when the risk is open and obvious to everyone, the probability of injury is low and the risk may be outweighed by the thing’s utility. Consequently, when the risk is open and obvious, the thing may not be unreasonably dangerous, or ... the defendant may not have failed to exercise reasonable care.

FraNK L. Maraist & Thomas C. GalligaN, Louisiana Tort Law § 14-3 (1996). Moreover, although parties have an obligation to maintain pedestrian walkways in a reasonably safe condition, it is equally well established a pedestrian has a duty to see that which should have been seen. See Boddie v. State, 27,313 (La.App. 2 Cir. 9/27/95), 661 So.2d 617. A pedestrian is not required to look for hidden dangers, but she is bound to observe her course in order to see if her pathway is clear. Id.; Carr %65 v. Covington, 477 So.2d 1202 (La.App. 1st Cir.1985), writ denied, 481 So.2d 631 (La.1986).

In the present case, the plaintiff and her husband entered the festival between the rides and they crossed the neatly bundled electrical cables. At that time, the plaintiff successfully negotiated the pathway and safely entered the festival grounds. Approximately four hours later, however, the plaintiff attempted to exit the festival grounds at the same spot she entered, encountered the same neatly bundled electrical cables, but fell. The condition was open and obvious. This is a material fact not in dispute. The plaintiff did not show how this condition posed an unreasonably dangerous condition. In my view, the plaintiffs absence of factual support for this essential element entitles defendants to summary judgment as a matter of law. Accordingly, I find the trial court properly dismissed plaintiffs case on a motion for summary judgment as a matter of law because plaintiff did not show she could satisfy her evidentiary burden of proof at trial.

      . Retired Judge Walter I. Lanier, Jr., sitting ad hoc for Johnson, J., recused.

      . Article 966 was amended in 1996 to provide that summaiy judgment procedure is favored. LSA-C.C.P. art. 966(A)(2). Since a 1997 amendment to Article 966, Louisiana's standard for summary judgment has been closely aligned with the federal standard under Fed. Rule Civ. Proc. 56(c). When sufficient time has been allowed for discovery, the courts will assess the proof submitted by the parties equally, without the former presumption in favor of trial on the merits, in order to dismiss meritless litigation. Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610, quoting Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. Under this standard, the appellate courts review motions for summary judgment de novo. Id. 98-2821 at 6, 744 So.2d at 610. In conducting a de novo review, appellate courts use the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supeivisors of Louisiana State University, 591 So.2d 342, 345 (La.1991).

      . Although of no real significance, being merely a matter of semantics, we note that plaintiff's deposition contains the term "pedestrian pathways." Plaintiff’s petition uses the term "pedestrian walkway.”

      . The court explained the rationale for rejecting the inconsistent affidavit is "to prevent the too easy thwarting of summary judgment procedure by the mere filing of an affidavit contradicting inconvenient statements found in previous deposition testimony when the mover has no opportunity to cross-examine the witness concerning the inconsistencies and the trial court is prevented from weighing evidence by the rules of summary judgment." George, 02-0821 at 5, 828 So.2d at 1197.

      . Although the appellate court and the parties did not mention the fact that there was no basis for disregarding Mr. Hutchinson’s affidavit, we note the following inconsistency in the trial court's ruling. Mr. Hutchinson's affidavit should not have been disregarded as conflicting with Mrs. Hutchinson’s deposition testimony under the holding in George, supra. Stated another way, there was no deposition testimony of Mr. Hutchinson submitted. Thus, there was no other evidence from him to contradict his affidavit.

      .Article 966(C)(2) provides:
      The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

      . Cf. Gilliam, v. Serrano, 162 So.2d 32 (La.App. 1 Cir.), writ denied, 246 La. 77, 163 So.2d 356 (La.1964) (Amusement ride's operator has heightened duty when young children are involved.)

      . The defendants point out plaintiff's deposition testimony was that the cables were bundled neatly and that she had turned her head toward her husband at the time of her trip- and-fall.