author: MONACO, J. THOMPSON, J.,

text:
    Lyndon James HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1640.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.

      James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and, Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

We are asked to determine in this appeal whether the trial judge erred in denying a motion to suppress certain evidence. Specifically, the defendant argues that the police unlawfully searched his backpack, and seized items in and on top of it.

A vehicle owner filed a police report indicating that someone had broken into her automobile and removed her purse and a spare set of keys. Later, the police received a report that the vehicle associated with the keys had been stolen. Fortunately, the vehicle was equipped with an “Onstar” satellite tracking system, which enabled the police to locate it at a house in Apopka. The vehicle was backed into the front yard and partially hidden from view.

Four police officers went to the front door of the house, and spoke to Elizabeth Setaram (a co-defendant), who answered the door. She initially claimed that she was alone and had no knowledge of the stolen vehicle in the front yard. When asked if she would unlock the front security door, Ms. Setaram responded that she did not have the door key. Apparently, Ms. Setaram then telephoned the homeowner, who eventually returned to the house and gave his permission for the officers to enter and search the entire residence.

One of the law enforcement officers involved in the search testified that while they were at the front door waiting for the homeowner to arrive, Ms. Setaram kept walking back and forth away from the door and was whispering. Eventually she admitted that someone else was in the house. Ms. Setaram called the person “Tip Mathews,” and told the officers that he didn’t want the officers to know that he was inside the house.

Once inside, the officers made contact with the defendant, Hicks. According to the homeowner, Ms. Setaram had only been at the house for two days. The homeowner related that Ms. Setaram was a friend, and he was allowing her to sleep in the front bedroom. After Ms. Setaram gave permission to the law enforcement officers to search the bedroom, the officers conducting the search observed drug paraphernalia and a substance that turned out to be cocaine.

In addition, while conducting the search of the bedroom, an officer observed a CD case containing nine games resting on top of a backpack that Hicks identified as his. According to the officer, Hicks gave his permission to search the backpack, from which the officer recovered a key ring and keys that had been taken from the stolen vehicle. The victim shortly thereafter was called to the premises and positively identified the CD case and games as having been in the stolen vehicle. The police also recovered from the backpack various screwdrivers, flashlights, rubber gloves, pliers and wire cutters.

In due course Hicks filed a motion to suppress, arguing that the evidence on and in the backpack was illegally seized without a warrant. According to Hicks, once the officers were inside the residence, they handcuffed him and made him sit in the living room. Hicks told the officers that because he was “handcuffed and surrounded by other officers” he “guessed he didn’t have any choice,” when asked if he would give his permission to search the backpack.

The following was offered by the officer as an explanation for handcuffing the defendant:

Q. Based on the behavior she was exhibiting, in your training and experience, what did that lead you to believe or what did you think might be going on?
A. That she was hiding something and so when we entered the house, we made
sure that we secured her. Once we entered the house, we noticed a black male standing in what I believe is a living room area off to the kitchen which is an area she kept walking to and then coming back from. So at that time we secured the black male also just for our safety.
Q. Okay. When you say secure, what exactly does that entail?
A. We secured him by keeping him in plain sight. We kept him in one room. We took the female into the kitchen area. We secured them by handcuffing them, that way — for their safety and our safety, because we did not feel immediate need that they had any kind of weapons on them. We did a quick pat down, did not feel any kind of weapons, guns, or anything of that nature on them. So that way we can secure them that way.

Although he could not remember the defendant’s exact words, the officer recalled that the defendant said with respect to the backpack, “[G]o ahead, search it.”

Hicks argued that his consent to search was involuntary because he was handcuffed with an officer by his side at the time that he gave it, even though the authorities knew that he was not armed, having earlier patted him down. He points out that he was not a flight risk because there were four officers on the scene. The defense position was that the consent to search was involuntary and constituted only an acquiescence to unlawfully asserted police authority. After the trial court denied the defense motion to suppress without making factual findings, Hicks pled nolo contendere to burglary of a conveyance, and was sentenced to 13 months in state prison, reserving the right to appeal the denial of the motion to suppress. As part of the plea agreement the State filed a nolle prosequi to the charge of grand theft.

On appeal, Hicks contends that Ms. Setaram was released from her handcuffs once police conducted a pat down while he remained in handcuffs with an officer guarding him at all times. According to Hicks, the police demonstrated their authority and custodial control over him by choosing to restrain him after releasing the female, and, thus, any reasonable person would believe that they had no choice but to consent to a search of his property. Hicks concedes, however, that the police were justified in temporarily detaining him to investigate the reason why a stolen car was parked in front of a house where he was a guest.

The State counters that, assuming the police were justified in detaining the defendant to investigate the stolen car report, it also follows that Hicks had no expectation of privacy in the residence since he did not own or live in the house, and there was no evidence to suggest that he was an overnight guest.

We consider the validity of the search first with respect to the items found on top of the backpack, and then with respect to the items contained within the backpack. The items on top of the backpack were lawfully seized by the law enforcement -authorities. The Fourth Amendment to the Constitution of the United States protects persons against unreasonable searches of “their persons, houses, papers and effects.” It is, therefore, a personal right that must be invoked by the affected individual. Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Accordingly, suppression of the product of a search that violates the Fourth Amendment can be successfully urged only by those whose rights were violated by the search itself, and not by those who are “aggrieved solely by the introduction of damaging evidence.” Jones v. State, 648 So.2d 669, 675 (Fla.1994), cert. denied, 515 U.S. 1147, 115 S.Ct. 2588, 132 L.Ed.2d 836; March v. State, 725 So.2d 472 (Fla. 5th DCA 1999). Unfortunately for the defendant, he finds himself in the latter position with regard to the items on top of the backpack.

In order to invoke the Fourth Amendment to suppress a search the defendant must demonstrate that he or she had a subjective expectation of privacy in the location searched and that the expectation was reasonable or legitimate. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz, 389 U.S. at 361, 88 S.Ct. 507. The extent to which the Fourth Amendment offers protection may well depend on the status and location of the defendant at the time of the search. While there are occasions where an overnight guest might have a legitimate expectation of privacy in someone else’s home [see Olson, 495 U.S. at 98-99, 110 S.Ct. 1684], one who is merely present with the consent of a homeowner generally may not claim that expectation. See Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

In Carter, the United States Supreme Court held that persons present in the home of a casual acquaintance for a few hours for business purposes do not have a reasonable expectation of privacy. Temporary visitors or short-term invitees, such as the defendant in the present case, therefore, are generally unable to advance a position of privacy with success. Whether that expectation is legitimate must in the final analysis depend on the totality of the circumstances. See Tillman v. State, 807 So.2d 106, 109 (Fla. 5th DCA), rev. granted, 835 So.2d 271 (Fla.2002). Indeed, there are some contexts that can be envisioned in which a guest might meet the expectation of privacy test. See Davis v. State, 582 So.2d 61 (Fla. 1st DCA 1991).

The record, however, shows no more than that Hicks was a short-term invitee with no legitimate expectation of privacy with respect to the room where the backpack was located. Regardless of whether Hicks’ consent to the search was voluntary, both the homeowner and the resident — those who might actually have had an expectation of privacy — gave permission to law enforcement to search.

Since the search of the bedroom was lawful, the items on top of the backpack were, as indicated previously, properly subject to seizure under the plain view doctrine. See Bolden v. State, 832 So.2d 153, 156 (Fla. 2d DCA 2002). The question of greater concern is whether the police lawfully searched the inside of the backpack. We conclude that the items inside the backpack were unconstitutionally seized.

Although the defendant had no expectation of privacy with regard to the bedroom where the backpack was located, he did have an expectation of privacy regarding the contents of the closed backpack by virtue of the “suitcase” rule announced in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

The Sanders decision concerned a war-rantless search of a closed but unlocked suitcase which contained a substantial quantity of marijuana. The suitcase was in the trunk of Mr. Sanders’ automobile at the time both were lawfully and constitutionally seized by the police. The United States Supreme Court held that the war-rantless search of the suitcase violated the Fourth Amendment, even though there was probable cause to search it.

The high court recognized that exigent circumstances might justify a warrantless search, but found none present. More specifically, since the police had the suitcase in hand, there was no danger that it would disappear. Under those circumstances, the Supreme Court held that “judicial approval” should have been obtained before opening the suitcase. See also, United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

The United States Court of Appeals for the Tenth Circuit, following Sanders, applied the “suitcase” rule to backpacks. In United States v. Meier, 602 F.2d 253 (10th Cir.1979), the police conducted a warrant-less search of a closed and unlocked backpack located within a vehicle owned by the defendant. Marijuana was found in the backpack. There were no exigent circumstances. The court found no significant difference between a suitcase and a backpack and quashed the search as violative of the Fourth Amendment. See also, Brown v. State, 789 So.2d 1021 (Fla. 2d DCA), rev. dismissed, 796 So.2d 537 (Fla.2001)(expectation of privacy existed in fanny pack left in car that was searched with consent). It is clear, accordingly, that Hicks had an expectation of privacy in the closed part of the backpack.

Finally, we now consider whether the defendant’s consent to search the backpack was constitutionally voluntary.

To validate a search without a warrant, the state must demonstrate that the search falls within a constitutional exception, one of which is voluntary consent. See Smith v. State, 753 So.2d 713, 715 (Fla. 2d DCA 2000). When determining whether a consent to search was freely and voluntarily given a court must examine the totality of the circumstances at the time the consent was obtained. See United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992). If the search is not preceded by police misconduct, the state must prove that the consent was voluntarily given by a preponderance of the evidence. See Faulkner v. State, 834 So.2d 400 (Fla. 2d DCA 2003); State v. Collins, 661 So.2d 962, 965 (Fla. 5th DCA 1995). Where, however, there is an illegal detention or other illegal conduct on the part of law enforcement authorities, consent will be found to be voluntary only if there is clear and convincing evidence that the consent was not the product of that illegal police conduct. Reynolds.

In the present case Hicks was placed in handcuffs, patted down for weapons, and attended to by the police officers present. He remained handcuffed even though Ms. Setaram had been released when no weapons were found. His response to the request to search the backpack was equivocal at best. No effort was made to seek a warrant. The defense argues that under these circumstances any consent given was involuntary, and that the search of the interior of the backpack should have been suppressed.

“[T]he police may properly handcuff a person whom they are temporarily detaining when circumstances reasonably justify the use of such restraint.” Reynolds, 592 So.2d at 1085; Johnson v. State, 813 So.2d 1027 (Fla. 3d DCA 2002). Handcuffs may well be justified where it is reasonably necessary for the safety of the officers present, or to frustrate a suspect’s attempt to flee. Reynolds.

Here, there may well have been justification for the use of handcuffs when Hicks was initially encountered. The continued use of handcuffs after the original pat-down search did not reveal any weapons. Thus, where there was no escape risk because of the presence of several police officers, a circumstance exists that weighs heavily on the voluntariness of Hick’s consent to search the backpack.

Our supreme court has said:

[ W]e are reluctant to hold that consent given while handcuffed can never be voluntary under any circumstances. There may be limited circumstances in which consent given while validly handcuffed during a temporary detainment may be found to be voluntary. [Citation omitted]. Because of the inherently coercive nature of handcuffing, the fact that one is under such restraint at the time consent is given will make the State’s burden to show voluntariness particularly difficult. However, it is not the presence or absence of any one factor alone that determines the validity of consent. The question turns on the particular circumstances of each case.

Reynolds v. State, 592 So.2d at 1087; see also Butler v. State, 697 So.2d 907 (Fla. 2d DCA 1997).

No matter the burden of proof, the State did not demonstrate that the consent to search the closed backpack was voluntarily given. Accordingly, we must reverse the judgment and sentence, and remand this case to the trial court with instructions to grant the motion to suppress only with respect to the items recovered from the inside of the backpack, and to allow Hicks, if he chooses, to withdraw his plea and to proceed to trial on all charges, including the charge that the state dropped as part of the plea agreement.

REVERSED and REMANDED.

SAWAYA, C.J., concurs.

THOMPSON, J., concurring specially with opinion.

THOMPSON, J.,

concurring specially.

I concur with Judge Monaco’s well-reasoned opinion as to the search of the room rented and occupied by Elizabeth Setaram. The record is clear that she freely spoke with police and, although initially handcuffed, was free of the handcuffs as she accompanied the police during their search of the house. She clearly stated that she rented the front bedroom and could therefore give permission to the police to search her bedroom and her personal property. Thus, any contraband found in the room could properly be introduced as evidence. I also agree that Hicks did not voluntarily consent to have his backpack searched. Review of the record shows that his permission, if given, was deliberately coerced. My reason for writing is to include additional facts to show how coercive the police conduct was.

After the police arrived and secured the perimeter of the house, the owner was called to open the locked security bars. The police entered and handcuffed Setar-am and Hicks. Once the police determined that Setaram was not armed, she was released. On the other hand, the police did not remove Hicks’s handcuffs although the police were satisfied that he was not armed and presented no danger to them. Furthermore, Hicks was not particularly belligerent and did not make any threats. Hence, the continued detention was illegal. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Reynolds v. State, 592 So.2d 1082, 1084 (Fla.1992).

Moreover, the police never read Hicks his Miranda rights until he had been arrested and taken to jail, although they suspected him of grand theft and questioned him about the vehicle parked outside. After Hicks said he was a visitor and professed his innocence of stealing the automobile, the police continued to question him for 15 minutes and subsequently brought out his backpack. When asked who owned the backpack, Hicks admitted it was his. The majority characterizes his response as equivocal because at the hearing on the motion to suppress, the officer testified he could not be sure whether Hicks said, “Go ahead” or “I guess I have no choice.” The police also admitted they never explained to Hicks that he had a right to refuse to consent to the search of his backpack. The effect of Hicks’s detention is demonstrated by his deteriorating demeanor. The officer testified that Hicks progressed from being nervous to being so agitated that he lost consciousness and had to be transported to the hospital. Finally, I note that of the seven people in the house, only Hicks was black. Considering all of these facts, there can be no doubt that his statement was the result of illegal police activity.

      . When considering an order on a motion to suppress, an appellate court should interpret the evidence and reasonable inferences and deductions drawn from that evidence in a light most favorable to sustaining the trial court’s ruling. See Morris v. State, 749 So.2d 590, 592 (Fla. 5th DCA 2000); Thomas v. State, 644 So.2d 597, 598 (Fla. 5th DCA 1994). Upon review of such orders legal questions are considered de novo, while factual determinations are entitled to deference if supported by competent substantial evidence, provided, of course, that constitutionally mandated burdens of proof are met. See Williams v. State, 788 So.2d 334, 336 (Fla. 5th DCA 2001). It is not our function, therefore, to reweigh the evidence or to substitute our factual findings for that of the trial court. See State v. Smith, 632 So.2d 1086, 1088 (Fla. 5th DCA), cert. denied, 513 U.S. 914, 115 S.Ct. 290, 130 L.Ed.2d 205 (1994).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Ramirez v. State, 739 So.2d 568, 573 (Fla.1999) (holding that "[c]ustody for purposes of Miranda encompasses not only formal arrest, but any restraint on freedom of movement of the degree associated with formal arrest”).


source: Caselaw Access Project

author: PER CURIAM. SHARP, W., J.,

license: Public Domain

text:
    Judith KOWALCZYK, Appellant, v. Donald R. HUNTER, et al., Appellees.
    No. 5D02-2979.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    Michael C. Huddleston of Huddleston & Teal, DeLand, for Appellant.
    Tracy Raffles Gunn of Fowler White Boggs Banker P.A., Tampa, for Appellee Dennis Macade Myrick.
    No Appearance for Appellee, Donald R. Hunter.
   PER CURIAM.

AFFIRMED.

SAWAYA, C.J., and PLEUS, J., concur.

SHARP, W., J., concurs specially, with opinion.

SHARP, W., J.,

concurring specially.

Kowalczyk appeals from a summary judgment in favor of one of the defendants (Myrick) in her personal injury action. Kowalczyk was a passenger on Hunter’s motorcycle as they drove west on Interstate — 4. As Hunter came over a hill, he saw that all the traffic in front of him was stopped or coming to a stop due to an accident ahead. Hunter was unable to stop in time and hit Myrick’s vehicle in front of him. Kowalczyk was thrown from the motorcycle onto the pavement.

Kowalczyk sued both Hunter and Myr-ick for negligence. Myrick moved for summary judgment on the basis that Florida law presumes the rear driver is solely at fault in a rear-end collision. Kowalczyk countered that the presumption was overcome by the “sudden stop” exception. The trial court concluded the sudden stop was not the type of unexpected, unreasonable stop which allows the rear vehicle to overcome the presumption of negligence and entered summary judgment for Myrick.

I believe Kowalczyk should have the opportunity to establish at trial that Myrick was negligent and contributed in some degree to causing her injuries. Kowalczyk would have the burden of contradicting or rebuting the presumption of negligence on Hunter’s part. If she succeeded, the presumption would vanish, and the case would go to the jury on ordinary negligence principles. The presumption of negligence on the part of the rear driver should be interpreted in light of our present comparative fault system which allows the jury to apportion fault among the defendants.

Nevertheless, I am bound to follow our en banc opinion in Pierce v. Progressive American Ins. Co., 582 So.2d 712 (Fla. 5th DCA), rev. denied, 591 So.2d 188 (Fla.1991), approved by Clampitt v. D.J. Spencer Sales, 786 So.2d 570 (Fla.2001). Pierce involved a similar “chain collision” accident. The majority held this type of sudden stop was insufficient to rebut the presumption the negligence of the rear driver was the sole proximate cause of the collision. Thus I reluctantly concur with the decision to affirm the summary judgment in favor of Myrick.

      . Hypothetically, Kowalczyk might be able to establish that Myrick was also speeding and traveling too close to the car ahead of him, thereby requiring Myrick to stop so abruptly he contributed to some degree to Hunter’s inability to stop safely behind Myrick.

      . § 768.81, Fla. Stat.


author: PER CURIAM.

text:
    Jeffrey DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-1802.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    Jeffrey Davis, Orlando, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The defendant Jeffery Davis’ petition for belated appeal is denied. Davis’ original convictions and sentences in Case No. 00-7844 were affirmed by this court. See Davis v. State, 796 So.2d 1187 (Fla. 5th DCA 2001). Based on Davis’ numerous and successive meritless pro se filings this court warned Davis that he would be subject to denial of further pro se access to this court if he filed any additional petitions or appeals attacking his convictions and sentences in Case No. 00-7844. See Davis v. State, 844 So.2d 669 (Fla. 5th DCA 2003). Despite this warning, the defendant has filed yet another pro se petition attacking his conviction and sentence in Case No. 00-7844. The defendant was ordered to show cause why he should not be denied further access to this court pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). We find his response unconvincing.

The defendant is precluded from filing any additional pro se appeals, pleadings, motions or petitions pertaining to his convictions and sentences in Case No. GO-7844, unless reviewed and filed by an attorney licensed to practice in the State of Florida. The clerk of this court is directed not to accept from Davis, as petitioner or appellant, any further pro se pleadings or filings which relate to this case. See Jackson v. Florida Dept. of Corrections, 790 So.2d 398 (Fla.2001); Vickson v. Singletary, 734 So.2d 376 (Fla.1999); Gaines v. State, 789 So.2d 516 (Fla. 5th DCA 2001); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

Petition for Belated Appeal DENIED.

SAWAYA, C.J., SHARP, W., and ORFINGER, JJ., concur.


author: GRIFFIN, J.

text:
    Calvin MORGAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-1963.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2003.
    Calvin Morgan, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General Daytona Beach, for Respondent.
   GRIFFIN, J.

Calvin Morgan seeks a belated appeal, alleging that state action frustrated his right to a timely appeal. He had earlier appealed the trial court’s denial of his 3.850 motion for post-conviction relief. We reversed in part and remanded the case for further consideration of a sentencing issue. See Morgan v. State, 840 So.2d 1151 (Fla. 5th DCA 2003). The trial court entered a “revised order denying defendant’s motion for post-conviction relief.” This revised order was signed and dated by the circuit judge on April 22, 2003. However, the certificate of service indicated that the order was not served until May 16, 2003. Morgan asserts that he did not receive his copy of the revised order until May 27, 2003. On June 8, 2003, petitioner submitted his petition for belated appeal of the revised order. Morgan has no need of a belated appeal because the time to appeal did not begin to run until the order was rendered, i.e., when the signed, written order was filed with the clerk of the lower tribunal. See Fla. R.App. P. 9.020(h). As Morgan notes, the revised order was not filed with the clerk of the lower tribunal until May 19, 2003. His petition for belated appeal, which was “filed” here under the mailbox rule on June 8, 2003, was timely filed within thirty days of the rendition date of the order to be reviewed. Accordingly, we treat the petition as a timely notice of appeal filed in the wrong court and transfer it to the circuit court. See Fla. R.App. P. 9.040(b)(1); Alfonso v. Dep’t of Envtl. Reg ulation, 616 So.2d 44 (Fla.1993); Jackson v. State, 834 So.2d 305 (Fla. 1st DCA 2002).

PETITION MODIFIED and TRANSFERRED.

SHARP, W., and THOMPSON, JJ„ concur.


author: LPER CURIAM. LPER CURIAM.

text:
    In re Donald O. PINKSTON.
    Nos. 2002-B-3251, 2002-B-3252.
    Supreme Court of Louisiana.
    May 20, 2003.
    Opinion Denying Rehearing Sept. 5, 2003.

      Charles B. Plattsmier, Baton Rouge, Loan “Mimi” T. Nguyen, Marrero, Counsel for Applicant.
    Donald O. Pinkston, New Orleans, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This disciplinary proceeding involves six counts of misconduct stemming from two sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Donald O. Pinkston, an attorney licensed to practice law in Louisiana but currently suspended from the practice of law for conduct unrelated to the instant proceedings.

UNDERLYING FACTS

Small Matter

In 1993, Dwayne Small, respondent’s stepson, pled guilty to manslaughter pursuant to a plea agreement in Orleans Parish Criminal District Court, Section “C.” Mr. Small was sentenced to twenty-one years in prison and began serving his sentence. In 1995, respondent enrolled as counsel of record for Mr. Small and filed a Motion to Correct an Excessive Sentence alleging the court erred in failing to apply the sentencing guidelines to Mr. Small’s plea agreement, which when applied would warrant imposition of a shorter sentence. The district attorney’s office filed an | ^objection to respondent’s motion urging it was illegal to amend a sentence imposed at hard labor after a criminal defendant started serving his time. Additionally, he asserted there was no law mandating the application of sentencing guidelines to plea agreements.

At a hearing conducted on June 25, 1996 by Judge Ike Spears, who was sitting ad hoc in Section “C,” respondent alleged on numerous occasions that he had personally spoken with the district attorney and was assured the State of Louisiana would not object to his motion. Based on respondent’s representations, Judge Spears reduced Mr. Small’s sentence from twenty-one years to twelve years, but stayed the effect of the order to enable the State to file writs.

Days later, the district attorney’s office filed a motion seeking reconsideration of the sentence reduction. Judge Spears kept the stay in place and again continued hearings of the State’s motion to permit respondent an opportunity to confirm his purported agreement with the district attorney’s office. When respondent was unable to do so, Judge Spears granted the State’s motion to reconsider and reinstated Mr. Small’s original twenty-one year sentence.

Prior to a scheduled status conference, Judge Sharon Hunter was elected to fill the vacancy in Section “C,” and the matter passed to her. In November 1996, she held the status conference and determined the matter was closed. The docket entry reflected: “the status hearing considered held and satisfied.”

Thereafter, respondent filed a “Motion to Correct an Illegal Minute Entry” in Mr. Small’s case. For unexplained reasons, that motion appeared on the docket of Section “G,” presided over by Judge Julian Parker. At the hearing on the motion, |3respondent represented to Judge Parker that an administrative error had taken place since Judge Spears had imposed a twelve-year sentence on Mr. Small when the actual sentence should have been nine years. Based on the representations made by respondent, Judge Parker vacated the prior sentence and resentenced Mr. Small to nine years. As a result, Mr. Small was entitled to an immediate release from prison.

Subsequently, Judge Parker reviewed the complete record and learned Judge Spears had in fact reinstated the twenty-one year sentence. Judge Parker advised the parties it was not his intent to re-sentence Mr. Small; rather, he believed, based on what he characterized as “erroneous and misleading representations” from respondent, that he was merely correcting an administrative error of Judge Spears. Accordingly, Judge Parker rescinded his earlier ruling and reinstated Mr. Small’s original sentence of twenty-one years. He ordered respondent to turn Mr. Small back into the custody of the State of Louisiana.

The ODC later conducted an investigation into respondent’s activity in the Small matter.

McDonald, Matter

In May 1996, Kenneth McDonald retained respondent for $3,500 to assist him in his criminal matter pending in the United States District Court for Eastern District of Louisiana. There was no written contract of employment between the parties. At the time, Mr. McDonald was already represented by New Orleans criminal defense |4attorney Frank DeSalvo. Nonetheless, Mr. McDonald wanted respondent to pursue the scheduling of an expeditious bond hearing and negotiate a plea agreement more favorable than that obtained by Mr. DeSalvo.

Subsequently, respondent met with Mr. McDonald on a few occasions and spoke on one or more times with the Assistant U.S. Attorney assigned to the case. Ultimately, Mr. McDonald did not get a bond hearing and he pled guilty relative to an agreement negotiated by Mr. DeSalvo.

On February 28, 1997, Mr. McDonald filed a complaint with the ODC advising that respondent faded to take any action to pursue his legal matter and refused to return the unearned legal fee, despite repeated requests. Contrary to his testimony at the formal hearing, respondent denied he was retained as counsel in the matter since Mr. McDonald was already represented by Mr. DeSalvo. Later, respondent erroneously stated he was retained after Mr. McDonald had already pled guilty and that respondent’s role was “would be to counsel and assist [Mr. McDonald] in calculating the guidelines and searching in the calculation and appealing his sentence if necessary.”

Isaac Matter

In February 1997, Ammie McCrainey Isaac retained respondent for $5,000 to represent her son, Emanuel Isaac, in criminal appellate proceedings. Following a multiple bill hearing, Mr. Isaac was sentenced to twenty years for manslaughter. Respondent filed a timely notice of appeal. Almost one year and one-half after he was retained, respondent wrote to Ms. Isaac stating the appeal was filed on January 26, |,1998. However, while the appeal record in the case was lodged with the court of appeal, the transcript of the hearing and sentencing on the multiple bill were not included. Finding these transcripts to be “essential” for appellate review, the court of appeal ordered respondent five times between January and May 1998 to “take necessary steps to have [the] transcript prepared and forwarded to the Clerk of this Court.” After the record was ultimately supplemented, the court of appeal had to order respondent on three occasions between June and November 1998 to file his assignments of error and brief. Although respondent was granted numerous extensions of time to submit such, he failed to timely comply with the court’s orders. When respondent finally complied with the court’s order on November 2, 1998, the brief relative to the appeal of the trial and sentencing in Mr. Isaac’s homicide case consisted of one assignment of error in a three-page brief.

Subsequently, respondent was suspended from practice of law on unrelated charges in In re: Pinkston, 98-1926 (La.12/11/98), 728 So.2d 381. As a result, Ms. Isaac retained other counsel, who filed a supplemental brief and completed the appellate representation. She asked that respondent provide an accounting and return the unearned fee, but he failed to do so.

Alston Matter

In early 1997, Felishia Alston, a California resident, filed a complaint against respondent alleging she retained respondent for $8,000 to represent Dalshawn Boson in criminal proceedings pending in Orleans Parish Criminal District Court. She contended respondent neglected the legal matter, failed to communicate with his client and withdrew from the representation prior to completing the matter, as well as refused to account for or return the unearned portion of the fee. Ultimately, the parties submitted to alternative fee dispute arbitration through the Louisiana State Bar | Association. On November 17, 1998, the appointed arbitrator rendered a written decision finding respondent incompetently and negligently handled the criminal matter, as well as failed to communicate with his client. She concluded respondent owed Ms. Alston $3,000 of the advanced fee. Subsequently, when respondent neglected to pay any portion of the owed fee, Ms. Alston had to retain counsel to file a civil action against respondent. Ms. Alston obtained a judgment against respondent, but respondent failed to satisfy the judgment.

Jones Matter

On December 11, 1998, this court rendered an order in In re: Pinkston, 98-1926 (La.12/11/98), 728 So.2d 381, suspending respondent from the practice of law for a period of two years. After this court denied respondent’s application for rehearing (making the suspension a final judgment), respondent accepted payment of $1,000 from Hilda Jones for the criminal representation of her son. Subsequently, Ms. Jones learned of respondent’s suspension from practice when he failed to appear for a court hearing in her son’s case. Respondent refused to refund the fee until August 1999, when prompted by Ms. Jones’ filing of a disciplinary complaint with the ODC.

Motton Matter

In 1995, Agnes Motton and Zina Nunnery retained respondent for $2,300 to represent Frank Motton in post-conviction criminal proceedings pending in Orleans Parish Criminal District Court. Mr. Mot-ton had been convicted of first degree murder and sentenced to life in prison. Respondent filed an application for post-conviction relief raising a claim of newly-discovered evidence. According to court records, the matter was scheduled for an evidentiary hearing, but was rescheduled on three occasions for various reasons. After March 1996, respondent failed to take any action |7in the case, nor did he refund his unearned fee, despite repeated requests.

In January 1998, Ms. Motton and Ms. Nunnery filed a complaint with the ODC advising of respondent’s neglect of a legal matter, failure to communicate and failure to return the unearned fee. While respondent filed a response denying any misconduct on his part, he conceded he neglected to complete the legal matter due to his suspension in In re: Pinkston, 98-1926 (La.12/11/98), 728 So.2d 381, and agreed he owed a refund of some portion of the fee.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed two separate sets of formal charges against respondent. The first set, filed in April 1999, involved the Small matter and alleged violations of Rules 1.2(c) (counsel or encourage a client to engage in conduct that the lawyer knows is criminal or fraudulent), 3.3(a)(1) (false statement of material fact or law to a tribunal), 3.3(a)(2) (conceal that which attorney is required by law to reveal), 3.3(a)(4) (offer evidence known to be false), 8.4(a) (violating the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

In May 2001, the ODC filed a second set of charges, involving the McDonald, Isaac, Alston, Jones and Motton matters. These charges alleged Rules 1.3 (lack of diligence), 1.4 (failure to communicate), 1.5 (failure to refund client funds), 1.15(b) (failure to promptly account for and deliver funds or property owed to a client or third party), 1.16(d) (failure to protect client interests upon termination of representation), 5.5(a) (unauthorized practice of law), 8.1(a) (knowingly make a false statement of material fact in connection with a disciplinary matter or bar admission matter or ^application), 8.4(a) (violating the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Respondent filed answers to both sets of formal charges. Separate hearings were conducted before different hearing committees.

Recommendations of the Hearing Committees

With regard to the Small matter, the hearing committee concluded respondent made several misrepresentations to Judge Parker, specifically, that Judge Hunter had recused herself, Judge Spears had reduced Mr. Smalls sentence to twelve years when the twenty-one year sentence had been reinstated, and that the minute entry by Judge Spears was erroneous and should be corrected to further reduce Mr. Small’s sentence to nine years. The hearing committee noted the misrepresentations resulted in the temporary release of Mr. Small from prison. Further, the committee found, while it was not clear whether respondent improperly caused the transfer to Judge Parker’s section, respondent “nevertheless took advantage of it” to obtain the illegal release of his stepson.

Based on these conclusions, the hearing committee found respondent violated Rules 3.3(a)(1) (false statement of material fact or law to a tribunal), 3.3(a)(2) (conceal that which attorney is required by law to reveal), 3.3(a)(4) (offer evidence known to be false), 8.4(a) (violating the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

The committee recognized respondent’s cooperation in the disciplinary 1 flproceedings as a mitigating factor. As aggravating factors, the committee identified respondent’s prior disciplinary record and substantial experience in the practice of law. Applying these factors to the baseline sanction of disbarment, the committee concluded disbarment is appropriate under the facts.

A separate hearing committee heard the McDonald, Isaac, Alston, Jones and Mot-ton matters. This committee found as follows:

In the McDonald matter, the committee concluded respondent violated Rule 1.5(f)(6) by failing to refund client funds, as he led Mr. McDonald to reasonably believe that, for $3,500 he would successfully obtain a bond hearing or favorable sentencing, which respondent failed to do.

In the Isaac matter, the committee found respondent failed to diligently pursue Mr. Isaac’s appeal and failed to adequately communicate with his client, in violation of Rule 1.3.

In the Alston matter, the committee determined respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) when he failed to satisfy his $3,000 obligation owed to Ms. Alston.

In the Jones matter, the committee concluded respondent violated Rule 1.5(f)(6) when he failed to refund the $1,000 retainer fee paid by Ms. Jones in connection with her son’s criminal matter at the time he was suspended from the practice of law.

In the Motton matter, the committee found violations of Rules 1.3 (lack of diligence) and 1.5(f)(6) (failure to refund client funds) based on respondent’s admission that there were several hearing continuances over a period of several years |inon Mr. Motton’s writs for habeas corpus and that he did not earn the entirety of the fee paid. While the committee stated there was evidence that respondent did not fully communicate with his clients, the committee neglected to find a violation of Rules 1.4 (failure to communicate) and 1.16(d) (failure to protect client interests at termination of representation).

As aggravating factors, the committee noted respondent’s prior disciplinary record, pattern of misconduct and substantial experience in the practice of law. The sole mitigating factor was respondent’s cooperation in the disciplinary proceedings. Applying these factors to the baseline sanction of suspension, the committee recommended a thirty-month suspension and payment of restitution to Mr. McDonald, Ms. Isaac, Ms. Alston, Ms. Motton and Ms. Nunnery.

Recommendation of the Disciplinary Board

With minor modifications, the disciplinary board accepted the factual findings of the hearing committees. The board found respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system and the profession. As to the Small matter, the board stated the actual injury to the legal system and the public was present in that respondent misrepresented the true status of Mr. Small’s sentence to the court “and Mr. Small, a violent criminal, was released from prison years before his scheduled release date.” As to the remaining client matters subject Inof the instant proceedings, the board stated actual injury resulted from respondent’s neglect of legal matters, failure to promptly provide accountings and return unearned fees to his clients.

The board adopted the mitigating and aggravating factors cited by the committees, as well as found respondent’s substantial experience in the practice of law should have been considered as an aggravating factor. Finding respondent’s actions show his lack of regard for his clients and for his professional obligations as a member of the bar, the board recommended that respondent be disbarred from the practice of law. It further ordered respondent to make restitution to his victims.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports the hearing committees’ findings that the charges against respondent have been proven by clear and convincing evidence.

|i;,In the Small matter, the only logical conclusion to be drawn from the evidence is that respondent intentionally and deliberately misrepresented the facts to the court in an effort to obtain a more lenient sentence for Mr. Small. Respondent initially represented to Judge Spears that the district attorney’s office had agreed not to oppose the motion to reduce Mr. Small’s sentence, when in fact it should have been obvious to respondent that no such agreement had been made by the district attorney’s office. Based on respondent’s false representations, Judge Spears reduced Mr. Small’s sentence. After Judge Spears reinstated Mr. Small’s sentence, the case mysteriously appeared on Judge Parker’s docket in another section of court. Respondent has offered no cogent explanation of how the case ended up in that section. At one point, he indicated that the transfer was based on the recusal of a judge; at another time, he indicated the case simply appeared on the docket to his surprise, and he was fortuitously in that section of court at the time the case was called. In any event, respondent represented to Judge Parker that he was simply asking to correct an administrative error in a minute entry, which would result in Mr. Small being sentenced to nine years. At no time did respondent call Judge Parker’s attention to the fact that Judge Spears had reinstated Mr. Small’s sentence to twenty-one years. Based entirely on respondent’s representations, which Judge Parker later characterized as “erroneous and misleading,” Mr. Small’s sentence was reduced to nine years, entitling him to an immediate release.

Although respondent adamantly asserts he had no improper motives in this matter, he offers no evidence in support of his contentions. Rather, he simply asks this court to disbelieve every witness who testified in these proceedings, including the trial judges and a representative of the district attorney’s office, who were found to be credible by the hearing committee. We are not prepared to disregard the findings of fact made by the hearing committee. Accordingly, we find the charges in the Small | ^matter are proven by clear and convincing evidence.

In the remaining matters, the record clearly demonstrates respondent neglected legal matters, failed to promptly provide accountings and failed to return unearned fees to his clients. The charges in these matters display a disturbingly similar scenario in which respondent collects fees for a criminal representation, neglects the matter and then refuses to refund his unearned fees.

Having found evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In the Small matter, respondent’s conduct unquestionably violates Rule 3.3, in that he made false statements to a court and concealed evidence from the court which he should have revealed. Such practices “violate the most fundamental duty of an officer of the court.” Commentary to Standard 6.11 of the ABA Standards for Imposing Lawyer Sanctions. As explained by Standard 6.11, the baseline sanction for violations of Rule 3.3 is disbarment. Nonetheless, we find respondent’s conduct in the Small matter is so egregious that ordinary disbarment would be inappropriate. Accordingly, we now turn to a discussion of permanent disbarment.

The sanction of permanent disbarment is set forth in the 2001 amendment to | uSupreme Court Rule XIX, § 10 and § 24. In our commentary accompanying the amendment, we stated, in pertinent part:

In the public interest, the Court has amended Louisiana Supreme Court Rule XIX to codify Permanent Disbarment as an available sanction for attorney misconduct. While the Court has always had the discretion to deny an application for readmission after the requisite five (5)-year waiting period after disbarment, an attorney who is permanently disbarred under these circumstances will be prohibited from applying for readmission to the bar. These amendments reflect the judgment of the Court that in some instances lawyer misconduct may be so egregious as to warrant a sanction of permanent disbarment based on the facts of an individual case and in consideration of the guidelines in Appendix E to the Rules of Lawyer Disciplinary Enforcement.

In Appendix E, we set forth several guidelines illustrating the type of cases which might warrant permanent disbarment. We explained that these guidelines were not intended to bind this court in its decisionmaking, but to provide “useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.”

Guideline 2 of Appendix E provides that an attorney’s “[ijntentional corruption l1Bof the judicial process” is a ground for permanent disbarment. Clearly, respondent’s actions in the Small matter must be considered an intentional corruption of the judicial process.

As recently noted in In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934, we do not impose the sanction of permanent disbarment lightly. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. By making false representations and concealing facts, respondent subverted the judicial process to his own ends. He engaged in conduct that was calculated to frustrate the administration of justice. This court cannot and will not condone such conduct by an attorney when high standards of honesty are expected. See Louisiana State Bar Ass’n v. Haylon, 250 La. 651, 198 So.2d 391, 392 (1967). Respondent’s actions convincingly demonstrate that he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

Accordingly, we will permanently disbar respondent from the practice of law in the State of Louisiana.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that the name of Donald O. Pinkston, Louisiana Bar Roll No. 17429, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent |1fibe permanently prohibited from being readmitted to the practice of law in this state. 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.

ON APPLICATION FOR REHEARING

LPER CURIAM.

Respondent, Donald O. Pinkston, seeks rehearing from the judgment of this court permanently disbarring him from the practice of law. Essentially, respondent claims that he was denied procedural due process because the Office of Disciplinary Counsel did not give him notice, either in its formal charges or written briefs, that permanent disbarment could be imposed in his case.

The essence of procedural due process is that “notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defense.” In re: Buffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968) (quoting Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L.Ed. 285 (1868)). It is undisputed that respondent had full notice of the charges against him. He participated in the formal hearing before the hearing committee and presented mitigating evidence. He was clearly aware that the charges against him were serious, as demonstrated by the fact that both the hearing committee and disciplinary board recommended disbarment.

Respondent filed an objection in this court to the recommendation of disbarment, filed a written brief and participated in oral argument. The thrust of respondent’s argument in this court was that his misconduct was not serious enough |?to warrant disbarment. Clearly, respondent’s position that he should not be disbarred necessarily encompassed the argument that he should not be permanently disbarred. As this court has recognized, permanent disbarment does not represent a new sanction which did not previously exist; rather, it is simply a procedural change to the rule which recognizes a power the court has always possessed. See In re: and Mann, 03-0234 (La.6/27/03), at p. 10, 849 So.2d 515, 522(“[t]hus, it is clear the amendments to Supreme Court Rule XIX, § 10(A) and § 24(A) do not represent a substantive change to the bar disciplinary rules, nor do they result in the adoption of a new sanction which did not previously exist. Rather, these amendments simply represent a procedural change to Supreme Court Rule XIX in order to recognize a power this court has always possessed”). Therefore, we find respondent received adequate procedural due process protection.

Accordingly, the application for rehearing is denied.

      . The matter originally involved a total of eight counts. Two of the counts were dismissed by the hearing committee, based on a finding that the ODC failed to prove these charges by clear and convincing evidence. The ODC has not objected to this finding; accordingly, these counts will not be addressed further.

      . In a subsequent hearing, respondent stated the case was remanded to Section "G” by Judge Hunter who recused herself from the matter. However, at another hearing, respondent professed to be unaware as to why the case appeared on the docket in Section “G.” He stated: "Your Honor, I have no idea. I have no connections with this building. I have no connections with Judge Hunter. I have no connections with the court. All I know is that the case was on the docket, I received a subpoena, I showed up.” Later, in oral argument before this court, respondent indicated that he had not received a subpoena in the case, but was in Section "G” on an unrelated matter when the case was called.

      . Judge Parker was apparently unaware of Judge Spears' earlier judgment reinstating the original sentence of twenty-one years. In subsequent appellate proceedings, Judge Parker explained the minute entry reflecting Judge Spears’ reversal of the June 25, 1996 ruling and reinstating the sentence of twenly-one years was "missing” from the record when he acted on the case.

      . Mr. DeSalvo wrote to the ODC that, to his knowledge, respondent had contacted on one occasion the U.S. Attorney, who advised that he would not discuss or negotiate the matter because respondent was not counsel of record. According to Mr. DeSalvo, respondent had essentially no part in the criminal matter.

      . In In re: Pinkston, 98-1926 (La.12/11/98), 728 So.2d 381, respondent was suspended from the practice of law for a period of two years for failure to maintain clients’ funds in trust and failure to pay a third party medical provider over a period of several years. Respondent has not sought readmission. Additionally, respondent was admonished on four prior occasions between 1994 and 1995 for failing to respond to disciplinary complaints. Finally, in 1997, respondent was reprimanded for misleading clients, failing to return unearned fees and commingling of client funds.

      . The board found minor errors regarding the committee's findings relative to the McDonald, Isaac and Motton matters. As to the McDonald matter, the board concluded the committee erred in failing to find a violation of Rule 8.4(a) (violating the Rules of Professional Conduct), although it admitted this finding added little, if anything, to the sanction imposed. As to the Isaac matter, the board determined the committee erred in finding violations of Rule 1.4 and 1.5(f)(6) since respondent was not charged with a violation of these rules, but found the committee erred in failing to find a violation of Rule 1.16(f) (failure to protect client interests at termination of representation) as respondent did not notify Ms. Isaac of his suspension, surrender her property and refund any unearned fees. Lastly, as to the Motton matter, the board pointed out that, although there was evidence respondent did not adequately communicate with his clients, the committee neglected to find a violation of Rule 1.4 (failure to communicate).

      . Supreme Court Rule XIX, § 10(A) was amended to add the highlighted language:
      (1) Disbarment by the court. In any order or judgment of the court in which a lawyer is disbarred, the court retains the discretion to permanently disbar the lawyer and permanently prohibit any such lawyer from being readmitted to the practice of law.

      . Supreme Court Rule XIX, § 24(A) was amended to add the highlighted language:
      A disbarred lawyer or a suspended lawyer who has served a suspension period of more than one year, exclusive of any waivers or periods of deferral, shall be reinstated or readmitted only upon order of the court.... No lawyer may petition for readmission until five years after the effective date of disbarment. A lawyer who has been placed on interim suspension and is then disbarred for the same misconduct that was the ground for the interim suspension may petition for readmission at the expiration of five years from the time of the effective date of the interim suspension. The court retains the discretion, in accordance with Section 10A of this rule, to permanently disbar a lawyer and permanently prohibit any such lawyer from being readmitted to the practice of law.

      . Having determined that respondent must be permanently disbarred for his conduct in the Small matter, we need not address the appropriate sanction for the other counts of misconduct, although respondent’s actions in these matters only reinforces our view that he lacks the moral fitness to practice law.

      . Respondent also argues he was deprived of substantive due process and application of the permanent disbarment rules to his conduct would violate the prohibition against ex post facto laws. Nearly identical arguments were discussed and rejected in this court’s recent opinion in In re: Laudumiey and Mann, 03-0234 (La.6/27/03), 849 So.2d 515.


text:
    In re Bryan M. WHITE.
    No. 2003-B-1425.
    Supreme Court of Louisiana.
    June 24, 2003.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that Bryan Michael White, Louisiana Bar Roll number 18501, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


author: I,PER CURIAM.

text:
    In re Robert W. SHARP, Jr.
    No. 2003-OB-1660.
    Supreme Court of Louisiana.
    June 25, 2003.
   ON APPLICATION FOR REINSTATEMENT

I,PER CURIAM.

Petitioner, Robert Sharp, Jr., was suspended from the practice of law for a period of one year and one day stemming from his assistance to a client in the initial stages of a scheme to induce the victim in an underlying criminal proceeding to drop charges against the client in exchange for the payment of money. In re: Sharp, 01-1117 (La.12/7/01), 802 So.2d 588. Following the completion of the suspension, petitioner filed an application for reinstatement with the disciplinary board, alleging that he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC concurred in petitioner’s application for readmission.

By agreement of the parties, the matter was submitted to the disciplinary .board on documentary evidence, which included items showing petitioner’s compliance with the reinstatement requisites. Following its consideration of the evidence, the disciplinary board concluded petitioner satisfied his burden of proving by clear and convincing evidence that he satisfied the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). Based on its findings, the board recommended that petitioner be reinstated to the practice of law.

| ^Following our review of the record, we conclude petitioner has satisfied the requirements for reinstatement to the practice of law. Accordingly, we will grant the petition for reinstatement.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record, it is ordered that Robert W. Sharp, Jr., Louisiana Bar Roll number 11973, be immediately reinstated to the practice of law in Louisiana.

      . The board noted that petitioner had technically not complied with Supreme Court Rule XIX, § 24(E)(7), which requires that the attorney satisfy his mandatory continuing legal education requirements "for the year of reinstatement or readmission,” because he had not completed his requirements for 2003. However, the board observed that because the petition was filed in early January, 2003 and because petitioner had completed his 2002 requirements, his failure to complete his 2003 requirement "should not serve as an impediment to his reinstatement.”

      . As noted earlier, the record does not indicate that petitioner has completed his 2003 mandatory continuing legal education requirements. The board suggested we require petitioner to complete these requirements as a condition of his reinstatement. We decline to impose a formal condition, as petitioner is already mandated to comply with these requirements under Supreme Court Rule § 30.


text:
    In re John V. BAUS, Jr.
    No. 2003-OB-1207.
    Supreme Court of Louisiana.
    June 25, 2003.
   ORDER

Considering the Petition for Transfer to Active Status filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that John V. Baus, Jr., Louisiana Bar Roll number 14070, be reinstated to the practice of law, subject to the condition that he must fully and completely adhere to all terms of the five-year recovery agreement he entered into with the Lawyers Assistance Program on December 4, 2002. The Office of Disciplinary Counsel shall monitor respondent’s compliance with his recovery agreement and notify this court of any violation, which may be grounds for immediately returning respondent to disability inactive status.

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana


author: JjPER CURIAM.

text:
    STATE of Louisiana v. Alton Joseph BROUSSARD.
    No. 2003-KK-1340.
    Supreme Court of Louisiana.
    June 26, 2003.
   JjPER CURIAM.

Granted. The order of the court of appeal is vacated and this case is remanded to the division of court in the 15th Judicial District to which it has been allotted.

In State v. Simpson, 551 So.2d 1303, 1304 (La.1989), this Court held that “[t]o meet due process requirements, capital and other felony cases must be- allotted for trial to the various divisions of the court, or to judges assigned criminal court duty, on a random or rotating basis or under some other procedure adopted by the court which does not vest the district attorney with power to choose the judge to whom a particular case is assigned.” (footnotes omitted). Simpson addressed an allotment procedure in which, according to the stipulation of the parties, “the judges [were] chosen by the district attorney’s office.” Id., 551 So.2d at 1304, n. 1. In State v. Rideau, 01-3146 (La.11/29/01), 802 So.2d 1280, we subsequently made clear that a procedure for randomly allotting capital cases on a rotating basis until all divisions of the court had .been assigned a capital case did not satisfy Simpson because the District Attorney still retained a direct role, albeit a diminished one, in the allotment procedure. We specifically noted that “[b]eeause the District Attorney has the ability, by process of | ^elimination, to know the final judge in the pool to be assigned the next number capital case, and because the district attorney has the right to assign the ease number in capital , cases when indictments are handed down, in this case the system currently in use in the Fourteenth Judicial District Court violates [Simpson ].” Rideau, 01-3146 at p. 1, 802 So.2d at 1280 (emphasis added).

At the hearing conducted on respondent’s motion to reallot his case, Irene Holbert, who has served as the criminal docket clerk for the Lafayette Parish Clerk of Court’s office for the past 22 years, testified that while it was possible for the personnel of the district attorney’s office to “sit down and figure out what cases were allotted to who[m],” no one from that office-had ever come to her to inquire which judges remained in the allotment pool. Holbert further testified that in 1999, the year respondent was indicted, one capital case had been previously allotted, leaving 10 judges in the remaining pool of judges assigned criminal matters in the 15th Judicial District. Respondent’s case was then assigned by random allotment by computer to Division F. These circumstances excluded any reasonable possibility that the district attorney’s office was directly involved in the allotment of respondent’s case.

Accordingly, because the district attorney’s office had no direct role in the allotment procedure in violation of Simpson and Rideau, and because respondent has shown no actual prejudice to his due process rights, we find no basis for ordering reallotment of the present case. The ruling of the trial court is therefore affirmed.

      . We note that Holbert also testified that in December of 2001, the allotment procedure for capital cases in the 15th Judicial District changed, apparently in response to our decision in Rideau, and now calls for strict random allotment of each capital case among all of the divisions assigned criminal matters.


author: JjPER CURIAM. It KNOLL, Justice | tWEIMER, J.,

text:
    In re Dana Patrick KARAM.
    No. 2003-B-0755.
    Supreme Court of Louisiana.
    June 27, 2003.
   JjPER CURIAM.

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Dana Patrick Karam, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

In December 1998, Roofing Supply, Inc. of Alexandria referred a collections matter to respondent for handling. Respondent did not communicate with his client, despite its numerous attempts to reach him concerning the matter.

In November 2000, Roofing Supply, Inc. of Alexandria filed a complaint against respondent with the ODC. In December 2000, and again in January 2001, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint, though he personally signed for the certified mail on both occasions. The ODC thereafter served respondent with a subpoena compelling him to appear on April 17, 2001 and answer the complaint under oath. Respondent failed to appear.

DISCIPLINARY PROCEEDINGS

On August 2, 2001, the ODC filed two counts of formal charges against respondent, alleging that his conduct violated the following provisions of the Louisiana 12Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 8.4(g) (failure to cooperate with the ODC in its investigation). The ODC further alleged that respondent failed to respond to a lawful demand for information from a disciplinary authority, in violation of Supreme Court Rule XIX, § 9(c).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

In its submission, the ODC argued that respondent’s conduct was intentional and caused injury to his clients and others. The ODC also argued that a suspension is the baseline sanction for respondent’s misconduct, pursuant to the ABA’s Standards for Imposing Lavn/er Sanctions. The ODC suggested several aggravating factors are present in this case, including multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the orders of the disciplinary agency, vulnerability of the victim, and substantial experience in the practice of law (admitted 1987). The ODC identified no mitigating factors. Under these circumstances, the ODC recommended respondent be suspended from the practice of law for one year and one day.

Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

|sIn its August 28, 2002 report, the hearing committee found the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3). Turning to the issue of an appropriate sanction, the committee noted that respondent, despite his substantial experience in the practice of law, has failed to cooperate with the ODC and has shown a total lack of concern and respect for the disciplinary process. In particular, respondent has received several items of certified mail and a subpoena from the ODC, yet he has demonstrated no attempt to cooperate or communicate with the disciplinary agency. Under these circumstances, the committee recommended that respondent be suspended from the practice of law for three months, followed by a twelve-month period of supervised probation.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board found the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3), and that respondent violated the Louisiana Rules of Professional Conduct as charged in the formal charges. The board determined respondent violated duties owed to his client, to the legal system, and as a professional, and that his conduct was knowing, if not intentional. Respondent’s client sustained damage, in that its legal matter was delayed and it was forced to retain new counsel to pursue the matter. The legal system and profession were damaged by respondent’s failure to cooperate with the ODC, delaying the disciplinary proceedings and adding unnecessary expense. The board concluded the baseline sanction for respondent’s misconduct is a suspension from the practice of law.

I/The board concurred in the aggravating factors cited by the committee, and recognized the mitigating factor of absence of a prior disciplinary record.

In light of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board concluded the sanction proposed by the committee is too lenient. Accordingly, the board recommended that respondent be suspended from the practice of law for one year and one day. The board also recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

The deemed admitted facts in this case establish that respondent neglected a legal matter, failed to communicate with his client, and failed to cooperate with the ODC in its investigation. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

In determining an appropriate sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

| fjClearly, the aspect of respondent’s conduct which most disturbed the ODC, the hearing committee, and the disciplinary board was his failure to cooperate in the disciplinary investigation. As this court observed in Louisiana State Bar Ass’n v. Jones, 555 So.2d 1375, 1380 (La.1990), “failure to cooperate in the investigation of alleged misconduct not only prejudices the administration of justice, but also prejudices the attorney’s position, inasmuch as many complaints are handled at the investigatory phase without formal proceedings.” See also In re: Graham, 01-2930 (La.2/8/02), 807 So.2d 829. This statement is particularly applicable to the instant case, where the complaint against respondent was relatively minor in nature and could have been quickly resolved if he had simply complied with his professional obligation to cooperate with the ODC in its investigation. Under these circumstances, a period of suspension is necessary to impress upon respondent the need to fulfill his duties under the Louisiana Rules of Professional Conduct, both to his clients and to the disciplinary system. We conclude that a suspension from the practice of law for a period of one year and one day will adequately accomplish this purpose, and will serve to protect the public, the legal system, and the profession.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Dana Patrick Karam, Louisiana Bar Roll number 18279, be suspended from the practice of law in Louisiana for a period of one year and one day. 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.

It KNOLL, Justice

(concurring).

I write separately to express my concerns over the application of the “deemed admitted” rule in this case. The allegations of fact contained in Count I of the formal charges are sketchy at best, making it difficult for me to make an informed determination of whether respondent committed the misconduct with which he is charged. This court should not be required to make a determination of professional misconduct on the basis of such limited facts. I believe it would be preferable to require the ODC to make a prima facie showing, through depositions, affidavits and other competent evidence, in cases where there is no formal hearing.

However, I recognize under the current version of the “deemed admitted” rule, as interpreted by this court in in re Donnan, 01-3058 (La.1/10/03), 838 So.2d 715, the ODC has satisfied its burden of proof. Accordingly, I concur in the majority’s opinion.

| tWEIMER, J.,

concurring.

I concur for the following reason.

This sanction seems unduly harsh for a relatively minor manner. While not condoning what the respondant attorney did, this matter was exacerbated because of a failure to respond and a refusal to participate in the disciplinary process. In particular, the respondent received a subpoena which was ignored.


text:
    In re Douglas C. ELLIS.
    No. 2003-OB-1478.
    Supreme Court of Louisiana.
    June 27, 2003.
   ORDER

Considering the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Douglas C. Ellis, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Douglas C. Ellis, Louisiana Bar Roll number 5829, for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1.

IT IS FURTHER ORDERED that Douglas C. Ellis shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


author: I .PER CURIAM.

text:
    Kenda FITE v. LOUISIANA TITLE COMPANY.
    No. 2002-C-2607.
    Supreme Court of Louisiana.
    June 27, 2003.
   I .PER CURIAM.

Granted. The court of appeal erred in holding that expert testimony is required to support a hearing officer’s finding of an occupational disease. The court further erred by failing to consider evidence that was erroneously concluded to be not properly admitted into evidence at trial.

Citing as support for the premise that an expert must testify at the compensation hearing, the CA cites Hymes v. Monroe Mack Sales, 682 So.2d 871 (La.App. 2nd Cir.1996); Price v. City of New Orleans, 95-1851 (La.App. 4th Cir.03/27/96), 672 So.2d 1045, writ denied, 96-1016 (La.10/25/96), 681 So.2d 360; and Picard v. Dynamic Offshore Contractors, 618 So.2d 1183 (La.App. 3rd Cir.1993). The Hymes case merely states as a legal principle, “Expert testimony is required to support a finding of an occupational disease,” and cites Price and Picard. 682 So.2d at 874. In Price, the fourth circuit concluded:

While not all diseases suffered by working individuals are occupational diseases, the diagnosis of a disease as an “occupational” disease requires expert testimony. No court would find an “occupational disease” solely on the basis of lay testimony. 672 So.2d at 1048

In addition, the Picard case does not find that an expert is required to testify at the | shearing. Picard simply concludes that, “There is no evidence in the record regarding the incidence of ‘tennis elbow’ in persons engaged in the trade or occupation of ‘structural fitters’.” 618 So.2d at 1184. While these CA cases involve the need for expert testimony, they do not support the notion that “expert testimony” means that an expert must testify at the compensation hearing.

The rules governing the practice and procedures before the Workers’ Compensation Court are located in the Louisiana Administrative Code. According to these regulations,

Expert testimony may be admitted by:

A. reports of any health care provider certified as a true copy in accordance with the 13:3715.1;
B. deposition;
C. oral examination in open court proceedings; however, no more than two physicians may present testimony for either party except by order of the judge;
D. any other manner provided by law.

La. Admin. Code tit. 40, § 6209 (March 2002). Thus, according to this rule, live expert testimony at the hearing is not required in order to support a finding of an occupational disease.

Furthermore, although the production of documents is generally governed by the provisions of the Code of Civil Procedure, the Administrative Code specifically provides:

Within 10 days of receiving a copy of another party’s medical report, the recipient shall advise the judge in writing |3if there is an objection to the admission of the report in evidence. A copy of the objection shall be mailed to all parties of record in the suit. Unless the judge and all parties are timely notified of the objection, the recipient of the report shall be deemed to have waived the right to object and the report shall be admitted into evidence for all purposes at the trial. When a timely objection is received, the judge may set a hearing on the motion, or rule on the matter at the trial on the merits. The judge further has the discretion to order, after a contradictory hearing, a deposition of the doctor if necessary to clarify a report or to obtain additional information, during the discovery period or at the trial on the merits.

La. Admin. Code tit. 40, § 5933(B). According to this rule, if the recipient party does not object to the admission of a report into evidence, the medical report is deemed to be properly admitted into evidence for all purposes at trial. In the present case, the court of appeal improperly found that certain evidence referenced in the hearing officer’s reasons for judgment were not “properly admitted at trial.” Therefore, the court of appeal erred in failing to consider this evidence when determining whether the claimant met her burden of proof.

It is well settled in Louisiana jurisprudence that the manifest error standard of appellate review applies in compensation actions even when the evidence before the trier of fact consists solely of written reports, records, and depositions. Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992); Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825, 826 (La.1987). Accordingly, the judgment of the court of appeal is set aside, and the case is remanded to the court of appeal to review the record under the manifest error standard of appellate review.

      . La. R.S. 23:1310.1(0
      The director [of the office of workers' compensation administration] shall have authority to adopt reasonable rules and regulations, including the rules of procedure before the workers’ compensation judges, according to the procedures established by the Administrative Procedure Act. All rules and regulations properly approved and promulgated under the Administrative Procedure Act, shall be consistent with the Workers’ Compensation Law and shall be binding in the administration of that law.


text:
    In re Kelly N. CALDWELL.
    No. 2002-OB-2459.
    Supreme Court of Louisiana.
    June 27, 2003.
   ON APPLICATION FOR ADMISSION TO THE BAR.

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Kelly N. Caldwell, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of one year. During this period, petitioner shall provide evidence to the Committee on Bar Admissions, on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations. Should petitioner fail to make a good faith effort to satisfy his financial obligations, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

TRAYLOR, J., would deny.


text:
    In re Charles D. SIMMONS.
    No. 2003-B-0990.
    Supreme Court of Louisiana.
    June 27, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

The Office of Disciplinary Counsel seeks review of a recommendation of the disciplinary board that the formal charges against respondent, Charles D. Simmons, be dismissed. Having reviewed the record and the briefs of the parties, we find the disciplinary board reached the correct result in dismissing the formal charges.

Accordingly, it is the judgment of this court that the formal charges against respondent be dismissed.

KIMBALL and TRAYLOR, JJ„ would docket for oral argument.


author: hPER CURIAM.

text:
    In re Pamela Ann DAVIS.
    No. 2003-B-1018.
    Supreme Court of Louisiana.
    June 27, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, Pamela Ann Davis, an attorney licensed to practice law in Louisiana. For her misconduct, which involves her failure to timely pay a third-party medical provider, respondent proposed that she be suspended from the practice of law for one year, fully deferred, subject to an eighteen-month period of probation with conditions. The Office of Disciplinary Counsel (“ODC”) concurred in respondent’s petition, and the disciplinary board recommended the proposed discipline be accepted.

It is the decision of this court that the petition for consent discipline be accepted. Accordingly, we will impose a fully deferred suspension, subject to probation with the conditions set forth in the petition for consent discipline.

DECREE

Upon review of the petition for consent discipline, the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that Pamela Ann Davis, Louisiana Bar Roll number 25377, be suspended from the practice of law in Louisiana for a period of one year. It is further ordered that said suspension shall be fully deferred, subject to respondent’s successful completion of an eighteen-month period of probation governed by the conditions set forth in the petition for consent discipline. Any violation of the conditions of probation or any | pother misconduct during the probationary period may be grounds for making the deferred portion of the suspension execu-tory, 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.

VICTORY and TRAYLOR, JJ., would reject consent discipline.


text:
    STATE of Louisiana v. David LEE.
    No. 2003-K-0032.
    Supreme Court of Louisiana.
    June 27, 2003.
   hPER CURIAM.

Granted. Because of the poor state of the record, a reviewing court cannot determine whether and when the defendant attempted to withdraw his motion for the appointment of a sanity commission, whether and when the district court granted the motion and appointed specific physicians to the sanity commission, whether and when the commission doctors reported to the court on the defendant’s competency to stand trial, and whether and when the district court conducted hearing on the reports and determined that the defendant was competent to proceed.

The judgment of the court of appeal in State v. Lee, 02-0955 (La.App. 4th Cir.12/4/02), 834 So.2d 536, reversing the defendant’s convictions and sentences, is therefore vacated, and this case is remanded to the district court for purposes of conducting an evidentiary hearing and reconstructing the proceedings as they related to the question of defendant’s competency to stand trial. The court shall determine whether the trial judge granted the defendant’s motion for appointment of a sanity commission, before the defendant attempted to withdraw the motion, thereby finding reasonable grounds to doubt the defendant’s competency to proceed and staying all further proceedings by operation of La.C.Cr.P. art. 642 until that determination was made. In the event that the trial judge did grant the motion before defendant attempted to withdraw it, the court shall further determine whether the trial judge then appointed (or failed to appoint) the commission doctors or conducted (or failed to conduct) a hearing on the commission’s reports and determined (or failed to determine) the defendant’s | {.competency to proceed before he went to trial. On the basis of its factual findings, the court is then to rule on the question of whether the defendant is entitled to set aside his convictions and sentences under this Court’s decisions in State v. Seals, 00-2738 (La.10/25/02), 831 So.2d 828, and State v. Nomey, 613 So.2d 157 (La.1993). Either side may appeal from an adverse ruling by the trial court.


text:
    In re Patrick N. DOOLEY.
    No. 2003-B-1339.
    Supreme Court of Louisiana.
    June 27, 2003.
   PER CURIAM.

IT IS ORDERED that the Petition for Consent Discipline be accepted and that respondent, Patrick N. Dooley, Louisiana Bar Roll number 19552, be and he hereby is suspended from the practice of law in Louisiana for a period of one year and one day. .

IT IS FURTHER ORDERED that 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.

      . We observe that there is an apparent discrepancy between respondent's statement in his brief of November 20, 2002, in which he states he did not participate in the proceedings because of his “paralyzing depression,” and the joint stipulation of facts of May 5, 2003, in which respondent asserts he was not "paralyzingly depressed” at the time of his earlier proceedings, and instead made a “voluntary, conscious decision not to participate” in order to expedite the proceedings. If and when respondent files an application for reinstatement, we instruct the ODC to investigate this matter further and report to this court on whether respondent’s seemingly inconsistent statements rose to the level of an intentional misrepresentation.


author: | T CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Zachary SPENCER.
    No. 2001-KO-944.
    Supreme Court of Louisiana.
    June 27, 2003.
   In re Spencer, Zachary- — Defendant; Applying for Writ of Certiorari and/or -Review, Parish of Orleans, Criminal District court Div. G, Nos. 393-876; to the Court of Appeal, Fourth Circuit, No. 99-KA-2127.

Denied.

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

JOHNSON, J., would grant the writ.

| T CALOGERO, Chief Justice,

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

In this application, the state has a somewhat stronger case than it did in State v. Sylvia, 01-1406 (La.4/9/03), 845 So.2d 358. In addition to the lab test confirming the existence of cocaine residue in the “crack pipe,” as was the case in Sylvia, the court of appeal in this case found, in accordance with the arresting officer’s testimony, that residue was also visible to the naked eye. In all events, this court’s majority is apparently not willing reconsider the resolved issue in Sylvia. I therefore concur in the denial of the writ application. But, see my general views in these drug residue cases, as expressed in my dissent in Sylvia.


text:
    STATE of Louisiana v. Domaino PERKINS.
    No. 2003-KK-1680.
    Supreme Court of Louisiana.
    June 27, 2003.
   11 WRIT GRANTED.

When a defendant moves for production of the juvenile records of a witness the trial court is called upon to determine whether the impeachment value of these adjudications is outweighed by the state’s interest in maintaining the confidentiality of juvenile records. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Toledano, 391 So.2d 817 (La.1980). As we have explained: “The critical question in cases involving a witness’s juvenile record and the sixth amendment right to confrontation is whether the defendant will be precluded from utilizing a method of impeachment that would be effective in the circumstances of his case were the juvenile record available to defendant.” State v. Smith, 437 So.2d 802, 804 (La.1983). In reviewing juvenile records, the issue thus becomes whether the witness’s juvenile adjudications have such discrediting value that there is a reasonable likelihood it would affect the verdict. State v. Toledano, supra, 391 So.2d at 820. That determination can only be made after an examination of the juvenile record by the trial court and preservation of that record for review. State v. Hillard, 398 So.2d 1057, 1060 (La.1981). In the instant case, the Court of Appeal denied the defendant’s application for writs from the trial court’s ruling denying production of the juvenile records of two of the State’s primary witnesses without first reviewing those records, under seal, to determine if the trial court’s ruling with respect to the materiality of the Dprior juvenile adjudications was the correct one. This was error. The Court of Appeal’s writ denial in this matter is therefore vacated and this case is remanded to the Court of Appeal for the purpose of obtaining the juvenile records, under seal, and reviewing those records to determine whether the trial court erred in denying their production.

KIMBALL, J., would deny the writ.

TRAYLOR, J., would deny the writ.


text:
    Michael William McGRAIL, et al. v. Jessie R. LEE, et al.
    No. 2002-C-1496.
    Supreme Court of Louisiana.
    July 3, 2003.
   PER CURIAM.

We granted defendants’ application for a writ of certiorari in this case on October 4, 2002. On April 9, 2003, after hearing oral arguments and reviewing the record, we recalled our order of October 4, 2002 as improvidently granted and denied defendants’ writ application. Defendants then applied for rehearing from this order. We granted rehearing on June 6, 2003. Plaintiffs have now filed a motion to vacate the grant of rehearing.

Supreme Court IX, § 6 provides that “an application for rehearing will not be considered when the court has denied ... an application for writ of certiorari....” In our order of April 9, 2003, we recalled our earlier grant of certiorari and denied defendants’ writ application. Accordingly, defendants’ application for rehearing from the April 9, 2003 judgment was procedurally improper and should not have been entertained by this court. Once we denied the writ, the judgment of the court of appeal became final and definitive under La.Code Civ. P. art. 2166(E) (“a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiorari”).

Accordingly, plaintiffs’ motion is granted. The judgment of June 6, 2003 granting defendants’ application for rehearing is vacated and set aside.


text:
    In re Thomas K. BROCATO.
    No. 2003-OB-2080.
    Supreme Court of Louisiana.
    July 30, 2003.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status filed by respondent, Thomas K. Brocato, and the Office of Disciplinary Counsel,

IT IS ORDERED that Thomas K. Bro-cato, Louisiana Bar Roll number 3482, be and he hereby is transferred to disability inactive status pending further orders of this court.

IT IS FURTHER ORDERED that all disciplinary proceedings in this matter shall be deferred until such time as respondent is transferred to active status.

IT IS FURTHER ORDERED that respondent shall comply with all requirements set forth in the joint petition for transfer to disability inactive status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Freddie L. WALKER.
    No. 2003-KH-2203.
    Supreme Court of Louisiana.
    Aug. 5, 2003.
   In re Walker, Freddie L.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 222,511.

Granted for the sole purpose of transferring the pleading to the Court of Appeal, Second Circuit for its consideration.


text:
    STATE of Louisiana v. Wendell HARRISON, Sr.
    No. 2003-KH-2182.
    Supreme Court of Louisiana.
    Aug. 5, 2003.
   In re Harrison, Wendell Sr.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, No. 92142; to the Court of Appeal, Third Circuit, No. KH-03-0216.

Granted for the sole purpose of transferring the application to the district court for its consideration.


text:
    Nancy Davis JUDSON, et al. v. Hall DAVIS, IV, President, Hall Mortuary, Inc.
    No. 2003-OC-2341.
    Supreme Court of Louisiana.
    Aug. 20, 2003.
   In re Judson, Nancy Davis et al.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 32,738; to the Court of Appeal, First Circuit, No. 2003 CA 0970.

Granted for the sole purpose of transferring the application to the court of appeal for its consideration.

TRAYLOR, J., would deny the writ.


text:
    STATE of Louisiana v. Wilbert RIDEAU.
    No. 2003-OK-2347.
    Supreme Court of Louisiana.
    Aug. 21, 2003.
   In re Rideau, Wilbert;—Defendant; Applying for Enforcement of Transfer of Case, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 01-CR-015321.

Stay denied. Motion denied. The motion to enforce transfer is not properly before this Court because it was not presented in the first instance to the court that issued the order of transfer, the Fourteenth Judicial District Court. In its 1964 opinion, this Court held that “the ruling of the trial judge denying the state’s motion for a change of venue in this case is reversed, the motion is granted, and, accordingly, the trial judge is ordered to grant a change of venue in this ease for the trial of the defendant, Wilbert Rideau, to a parish in this state outside the range of those reached by televised broadcasts beamed by KPLC-TV, Lake Charles, Louisiana.” State v. Rideau, 246 La. 451, 165 So.2d 282, 285 (1964). Ultimately, it was the trial court that issued the order transferring venue. Moreover, any jurisdictional defects in the indictment returned against defendant must first be challenged in the district court currently exercising jurisdiction over this proceeding via a motion to quash pursuant to La.C.Cr.P. art. 532(8), and cannot properly be urged for the first time in this Court.

TRAYLOR, J., recused.

JOHNSON, J., concurs in the result.

KNOLL, J., I would concur in the result to deny the motion.


text:
    STATE of Louisiana v. Patrick KENNEDY.
    No. 2003-KD-2393.
    Supreme Court of Louisiana.
    Aug. 22, 2003.
   In re Kennedy, Patrick;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 98-1425; to the Court of Appeal, Fifth Circuit, No. 03-K-993.

Denied.

KNOLL, J., recused.