author: OFTEDAL, RICHARD L., Associate Judge.

text:
    James HODGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3515.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.

      Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   OFTEDAL, RICHARD L., Associate Judge.

James Hodge appeals his conviction for sexual activity by a person twenty-four or older with a person sixteen or seventeen years of age. We affirm and write to address two issues.

Hodge contends that the trial court improperly denied his motion for judgment of acquittal, arguing that the State failed to prove that the seventeen-year-old victim had not had the disabilities of nonage removed. Appellant was found to have violated section 794.05, Florida Statutes (2000), which provides in pertinent part:

(1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree....
(2) The provisions of this section do not apply to a person 16 or 17 years of age who has had the disabilities of nonage removed under chapter 743.

Hodge unsuccessfully argued to the trial judge that subsection (2) above is an element of the offense to be proven by the State beyond a reasonable doubt. In denying his motion for judgment of acquittal, the court ruled that the disabilities of nonage exception was an affirmative defense.

Determining whether the disabilities of nonage exception is an element of the crime to be negated by the State or is in the nature of a defense, requiring the defendant to come forward with evidence, is an issue of law subject to de novo review. See McCann v. Walker, 852 So.2d 366, 368 (Fla. 5th DCA 2003)(questions of law are reviewed de novo).

Because the subsection in question is an exception to the crime, Campbell v. State, 771 So.2d 1205, 1206 (Fla. 2d DCA 2000), review denied, 786 So.2d 578 (Fla.2001), we must look to its placement in the wording of the statute. If the exception appears in the enacting clause, the burden lies with the State to prove that the defendant is not within the exception; but, if the exception is contained in a subsequent clause or statute, that is a matter of defense requiring the defendant to put forth some evidence in support thereof. Only-then does the burden shift to the State, requiring it to disprove the defense beyond a reasonable doubt. See State v. Thompson, 390 So.2d 715, 716 (Fla.1980); Stevens v. State, 680 So.2d 569, 570 (Fla. 1st DCA 1996)(holding that an exception to the theft statute was a defense to the crime as it was not set forth in the enacting clause, but in a subsequent subsection of the statute), aff'd, 694 So.2d 731 (Fla.1997).

Here, the exception is not in the enacting clause but is contained in a subsequent subsection of the statute. Nowhere else in the statute is there any suggestion that the removal of the disabilities of nonage exception was intended to be an element of the crime. It was, therefore, a defense. Since Hodge presented no evidence that the minor victim had the disabilities of nonage removed at the time of the offense, he was not entitled to a judgment of acquittal.

Hodge also alleges error in the trial judge’s refusal to submit to the jury proposed instructions that would have required the State to prove that he knew the victim was underage and that he acted with criminal intent. Whether or not the statute defines a strict liability crime is a question of legislative intent. See Chicone v. State, 684 So.2d 736, 741 (Fla.1996)(reit-erating that “since the legislature is vested with the authority to define the elements of a crime, determining whether scienter is an essential element of a statutory crime is a question of legislative intent”). Where the statute is silent on the issue of scien-ter, the recent trend is to read a guilty knowledge requirement into the law, at least in felony cases. Id.; see also Giorgetti v. State, 821 So.2d 417, 420-21 (Fla. 4th DCA 2002), review granted, 837 So.2d 412 (Fla.2003).

Turning to the statute in question, the legislature left no doubt as to its intention that this offense be treated as a strict liability crime for which the State was not required to prove criminal scienter on the part of Hodge. Section 794.021, Florida Statutes (2000), unequivocally provides that ignorance or mistake of the victim’s age is not a defense to the crime for which Hodge was charged:

When, in this chapter, the criminality of conduct depends upon the victim’s being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.

Our holding that section 794.05 is a strict liability crime is supported by earlier caselaw finding that crimes against underage persons fall “ ‘within the category of crimes in which, on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act ... and proof of an intent is not indispensable to conviction.’ ” State v. Sorakrai, 543 So.2d 294, 295 (Fla. 2d DCA 1989)(quoting Simmons v. State, 151 Fla. 778, 10 So.2d 486, 438 (1942), and stating that ignorance or mistake as to age is no defense to a defendant charged with committing a lewd and lascivious act upon a child under the age of sixteen years); see also Grady v. State, 701 So.2d 1181 (Fla. 5th DCA 1997)(defendant’s knowledge that the person he procured for prostitution was under eighteen is irrelevant); Hicks v. State, 561 So.2d 1284 (Fla. 2d DCA 1990)(defendant’s ignorance of victim’s age not a defense for defendant charged with use of a child in a sexual performance).

Accordingly, because we find that the charged offense is a strict liability offense in which the State has an interest in protecting underage persons from being sexually battered or exploited, Hodge could not defend on his lack of criminal intent or mistake of age. The trial judge correctly denied Hodge’s request to instruct the jury to the contrary.

AFFIRMED.

POLEN and GROSS, JJ., concur.

      . Defense counsel sought the following special jury instructions, which were rejected by the trial judge:
      Before you can find James Hodge guilty, the State must prove that James Hodge knew that [the victim] was 16 or 17 years of age....
      Before you can find James Hodge guilty, the State must prove that James Hodge acted with criminal intent. To act with criminal intent means to intentionally do an act the law forbids.


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Meeri Filsinger HIRVONEN, Petitioner, v. Brad FILSINGER, Respondent.
    No. 4D04-157.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.

      Robert W. Schlorff, II, Ft. Lauderdale, for petitioner.
    Timothy Arcaro, Ft. Lauderdale, for respondent.
   KLEIN, J.

Petitioner mother seeks prohibition or certiorari relief arguing that the trial court lacks jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)., We deny the petition.

The petition is from an order entered after an evidentiary hearing on the mother’s motion to enforce an order of a Texas court giving her temporary custody. The Florida ' order from which the mother seeks relief found the following facts.

The mother, in March 2001, violated a Florida court order prohibiting the removal of her child from Broward County dim-ing the dissolution procéedings pending between her and the father. After removing the child to Finland, she obtained a Finnish judgment awarding custody to her and visitation to the father. The mother had testified in the Finnish proceedings that, she had no intent of changing the child’s residency to .a country other than Finland; however, after so testifying, and before the Finnish judgment had been entered., she secretly took the child to Texas in order to permanently reside there with her fiancé without informing the Finnish court or the father.

In 'September 2003 the mother was arrested in Texas on Florida criminal charges’ arising out of her removal of the child from Florida in 2001. After her arrest, Texas, which has adopted the UC-CJEA, took the child into custody, contacted the father in Florida, and turned the child over to the fathér who brought him back to Florida. The mother then filed a petition in Texas and obtained a writ of habeas corpus, requiring the parents to produce the child, and a temporary order appointing the mother temporary managing conservator over the child. The father had written a letter to the Texas judge, but had not attended any proceedings there.

After hearing the evidence the Florida judge spoke with the Texas judge by telephone and informed him of the facts, but the Texas judge was unwilling to relinquish jurisdiction to Florida before holding a hearing in Texas. The trial court then denied the mother’s motion to enforce the prior Texas court order which had given her temporary custody. .Her petition in this court argues that under these circumstances the Florida court does not have jurisdiction over the custody of the child under the UCCJEA.

We can understand why the.Texas judge was, before a hearing in Texas, reluctant to immediately relinquish jurisdiction based on the telephone conversation between the judges. He was concerned not only about complying with the UCCJEA, but had additional concerns about the proceedings in Finland. On the other hand, it is undisputed that the Florida court had jurisdiction over the custody of the child in 2001, when the mother knowingly violated a court order prohibiting her from removing the child from Broward County.

As we noted earlier, these proceedings arise out of the dissolution of marriage action brought in Florida in 2001. The final judgment dissolving the marriage was entered in that proceeding on November 21, 2001, and recognized that the mother had fled with the child to Finland during the proceedings. In the judgment the court stated that it was in doubt as to its jurisdiction to determine custody, inasmuch as the child was presently in Finland. The court indicated it would defer to a Finnish court to determine custody and visitation but retained jurisdiction “for the purposes of discovery with regard to the fitness of either parent for custody.” The judgment also recommended shared parental responsibility and retained jurisdiction over child support. The Finnish judgment is currently on appeal according to the representations of the parties.

One of the provisions of the UCCJEA, section 61.519(1), provides:

Except as otherwise provided in s. 61.517, a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 61.520.

Texas has a similar statute. Tex. Fam. Code § 152.201. Thus, neither Florida nor Texas would have jurisdiction under the UCCJEA if a proceeding concerning custody has been commenced in a court of another state having jurisdiction. Florida did have jurisdiction over the custody of the child in the dissolution proceedings, prior to the mother fleeing with the child to Finland. Texas could not have exercised jurisdiction unless the proceeding in Florida had been terminated. We conclude that, under the language contained in the Florida judgment, in which the court retained jurisdiction for discovery regarding custody and recommended shared parental responsibility, but deferred to the Finnish court, the Florida proceedings had not been terminated.

Even if we assume that the entry of the dissolution judgment did terminate the Florida proceedings regarding custody, section 61.517 of the UCCJEA gives a Florida court “temporary emergency jurisdiction” over child custody for a number of different reasons, including the necessity of protecting the child from “mistreatment or abuse.” In the order on review the trial court found that the mother has violated Florida and Finnish court orders, has criminal charges pending in Broward County, and is a flight risk. The court also found that she secreted the child in Texas and gave false information to the Texas court in order to support Texas jurisdiction. Although the trial court did not cite section 61.517, the mother’s actions could constitute mistreatment which would justify the denial of the motion to enforce the Texas order, which, we emphasize, was a temporary order entered before a hearing.

Our denial of this petition should be construed as no more than a determination that, as between Florida and Texas, the Florida court has jurisdiction over the custody of the child under the UCCJEA, and Florida is not accordingly required to relinquish jurisdiction to Texas based on this record. It is obvious from the conversation between the Florida judge and the Texas judge, which is in the record, that both judges were conscientiously attempting to follow the UCCJEA, and both were concerned about the impact of the proceedings in Finland, in which the father appeared and was represented by counsel. We have not considered what effect should be given the Finnish judgment, which, as we noted earlier, is presently on appeal. Petition denied.

POLEN and SHAHOOD, JJ., concur.


author: PER CURIAM.

text:
    Nilson Maia PIRES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2527.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of two counts of lewd and lascivious conduct, one (Count I) for touching the breasts, or the clothing covering them, of a person over twelve but less than sixteen years of age, and the other (Count III) for inserting his tongue into the mouth of a person under sixteen years of age. The state concedes that the two convictions violate double jeopardy under the authority of Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001), because both acts occurred in one location without a temporal break between them so that the defendant had “time to pause, reflect, and form a new criminal intent between the occurrences.” Id. at 1095 (citing Nicholson v. State, 757 So.2d 1227 (Fla. 4th DCA 2000); Saavedra v. State, 576 So.2d 953 (Fla. 1st DCA 1991)). We therefore reverse and remand for the trial court to vacate appellant’s conviction and sentence for Count III.

WARNER, POLEN and KLEIN, JJ„ concur.


text:
    Andrew Donald GUMBERG, Appellant, v. Lorraine Abruzzo GUMBERG, Appellee.
    No. 4D02-3529.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.

      Richard L. Allen of Pertnoy, Solowsky & Allen, Miami, for appellant.
    H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellee.
   PER CURIAM.

Andrew Gumberg appeals a trial court order granting his former wife’s trial counsel $23,000 for a portion of attorney’s fees incurred in an unsuccessful challenge to a prenuptial agreement. We reverse because the successor trial judge incorrectly interpreted this court’s opinion in Gumberg v. Gumberg, 818 So.2d 682 (Fla. 4th DCA 2002), where we affirmed an order denying the same portion of attorney’s fees.

The trial court’s 2001 order under review in Gumberg was not completely clear as to whether the trial court’s “reasonable” fee finding of $127,562.54 was intended to include the $23,000 in disputed attorney’s fees. The former wife, however, effectively conceded in that appeal that the trial court order denied the $23,000 and we affirmed. The trial court order reviewed in Gumberg first expressly found that the former wife should not be entitled to recover $23,000 in attorney’s fees for her unsuccessful challenge to the prenuptial agreement as “there was no basis to attack the agreement.” The same order, however, also provided that the hourly rate charged, amounting to $127,522.54, was “reasonable.” The parties conceded, both at the hearing and in the former wife’s subsequent appeal, that the trial court intended to subtract the $23,000 in attorney’s fees from the $127,522.54 potential fee and to award the former wife $104,522.54.

Here, as in Peterson v. Peterson, 715 So.2d 977, 978 (Fla. 4th DCA 1998), the affirmed order has become the “law of the case” and cannot be modified by the successor trial judge. Specifically, in the earlier appeal, the former wife argued that the trial court abused its discretion in denying that $23,000 portion of her prayer for attorney’s fees. After the former wife’s appeal, this court reversed certain portions of the order, specifically imposing post-judgment interest on the former wife, however “affirm[ing] on all other points raised.” Gumberg, 818 So.2d at 682. We can discern no basis to conclude that, in affirming, we did not intend to affirm as to that issue.

The former wife’s attorneys, although not counsel in the earlier appeal, are bound by the position taken and by our opinion in that appeal. See Peterson, 715 So.2d at 978.

Therefore, the final judgment in favor of Patterson & Maloney is reversed and we remand for modification accordingly.

STONE, WARNER and STEVENSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Douglas ROSA, Appellee.
    No. 4D02-4275.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellant.
    Kayo E. Morgan of Kayo E. Morgan, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See State v. Garcia, 866 So.2d 124 (Fla. 4th DCA 2004).

WARNER, POLEN and KLEIN, JJ., concur.


text:
    Cary John HENDERSON, Appellant, v. Cynthia Scott HENDERSON, Appellee.
    No. 4D03-11.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Cary John Henderson, Pembroke Pines, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WARNER, POLEN and KLEIN, JJ., concur.


text:
    Raymond PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-355.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(b)(2)(A)(ii); Robinson v. State, 373 So.2d 898 (Fla.1979).

STONE, KLEIN and STEVENSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Joseph RIZZOLO, Appellee.
    No. 4D03-442.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Carlos Canet, Aventura, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Salvatore CAPOZZI, Appellee.
    No. 4D03-683.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Jonathan Blecher, Miami, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


author: STONE, J.

text:
    John N. BUTLER, Appellant, v. Kristin Shealy BUTLER, Appellee.
    No. 4D03-870.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    A. Matthew Miller of Miller, Schwartz & Miller, P.A., Hollywood, for appellant.
    John G. Jordan of John G. Jordan, P.A., Fort Lauderdale, and Nancy Little Hoff-mann of Nancy Little Hoffmann, P.A., Pompano Beach, for appellee.
   STONE, J.

Appellee (Wife) filed a petition for dissolution of marriage in Broward County. Brevard County, however, is the county where the parties last resided together as husband and wife, with a common intent to remain married, and where Appellant (Husband) still resides. We reverse an order denying Husband’s sworn motion to dismiss for improper venue and conclude that it was error to deny the motion because the record demonstrates that the parties last resided together as husband and wife, with a common intent to live and to “remain married, indefinitely if not permanently,” in Brevard County. Carroll v. Carroll, 341 So.2d 771, 772 (Fla.1977). In other words, Brevard County was the place they last called “home.” Id.

It is undisputed that the parties lived in Broward County for approximately six months after them marriage, at which time Husband moved to Melbourne, in Brevard County, where he was employed as a physical therapist with the Florida Marlins. Some six months later, Wife also moved to Melbourne. Shortly thereafter, Husband’s employment was terminated and he immediately began seeking employment in other areas, including other states. The parties’ child was born in Brevard County and they lived together in Brevard County for approximately eleven months before Wife and child moved back to Broward County and she filed the subject petition.

At the hearing, Wife acknowledged that all of her belongings were in Melbourne, that she lived and had sometimes worked in Brevard County from June 2001 until November 2002, that Husband and Wife signed a one-year lease for an apartment in 2002, and that Husband changed the address on his driver’s license, but Wife had not. Wife, nevertheless, asserts that she never intended to permanently leave Broward County and always intended to return.

The trial court found that Husband was “looking to relocate to any other venues that would afford him similar employment,” but denied Husband’s motion because, although the court found venue to be proper in either county, it concluded that trial in Broward County was “more convenient to the Wife and child.”

It is well-established that venue, in an action for dissolution of marriage, lies in the county where the parties last lived with a common intent to remain married. See Carroll.

We recognize that the burden is upon Husband, as the party seeking a change of venue, to demonstrate the impropriety of Wife’s selection. See Houchins v. Fla. E. Coast Ry. Co., 388 So.2d 1287, 1290 (Fla. 3d DCA 1980). Nevertheless, here, Wife’s reliance solely on her assertion in court that she intended to return to Broward in the future, taken alone, is not sufficient to overcome the contrary evidence. See Crawford v. Crawford, 415 So.2d 870 (Fla. 1st DCA 1982)(holding trial court is to look to where “the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married”).

We have considered Beggs v. Beggs, 570 So.2d 1103 (Fla. 1st DCA 1990), where the court concluded that the wife’s move from Madison County to Leon County was intended to be temporary, for the purpose of the wife’s education, and deem it distinguishable. Similarly, in Eisenberg v. Eisenberg, 453 So.2d 83 (Fla. 1st DCA 1984), there was ample evidence that the parties never intended to abandon Jacksonville as their marital residence, notwithstanding the husband’s temporary move out of the marital home.

Here, there is nothing in the record to support Wife’s contention that, prior to the parties’ separation, the Brevard residence was temporary and that they intended to return to Broward County.

Accordingly, since the parties last resided together with the intent to be married in Brevard County, as the last place where an intact marriage existed, then Wife is not entitled to elect to file in Broward County simply based on a statement of intent which is contrary to the manifest weight of the undisputed evidence that Brevard County was their “home.” See Carroll, 341 So.2d at 772.

We remand for entry of an order in accordance with this opinion.

WARNER and STEVENSON, JJ., concur.

      . Husband did not attend the five minute hearing, at which his counsel appeared by telephone. Husband's counsel was apparently not aware that evidence would be taken at the hearing.


text:
    STATE of Florida, Appellant, v. Robert TODD, Appellee.
    No. 4D03-688.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles, J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Lee Cohn, Fort Lauderdale, for appel-lee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Bruce AUGUSTO, Appellee.
    No. 4D03-687.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Larry Skurka, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Michael HAAG, Appellee.
    No. 4D03-1082.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Kevin Unger, Plantation, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Bennie MOTLEY, Appellee.
    No. 4D03-1295.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    George Allen, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Debra GIMM, Appellee.
    No. 4D03-1377.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Alan Bernstein, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Antonio WILLIAMS, Appellee.
    No. 4D03-1476.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Ralph Behr, Fort Lauderdale, for appel-lee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jaime GEISLER, Appellee.
    No. 4D03-1491.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Andrew Parks, Miami, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Patricia SCHAFER, Appellee.
    No. 4D03-1492.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    • Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    David Nicnick, Tamarac, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur,


text:
    STATE of Florida, Appellant, v. Marie SYLVAIN, Appellee.
    No. 4D03-1565.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Charles Barnard, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v- Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jason LYNCH, Appellee.
    No. 4D03-1680.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assitant Attorney General, West Palm Beach, for appellant.
    Charles Barnard, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Michael KAPELUSHNIK, Appellee.
    No. 4D03-1962.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Michael J. Satz, State Attorney, and James P. McLane, Assistant State Attorney, Fort Lauderdale, for appellant.
    Richard Mirsky, Miami, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Terry COATES, Appellee.
    No. 4D03-2037.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Michael J. Satz, State Attorney, and James P. McLane, Assistant State Attorney, Fort Lauderdale, for appellant.
    Jonathan Marne, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Erik HOHNE, Appellee.
    No. 4D03-2342.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Michael J. Satz, State Attorney, and James P. McLane, Assistant State Attorney, Fort Lauderdale, for appellant.
    Samuel Lopez, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Donald COATES, Appellee.
    No. 4D03-2381.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.

      Michael J. Satz, State Attorney, and James P. McLane, Assistant State Attorney, Fort Lauderdale, for appellant.
    Michael Catalano, Miami, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Mark RINDER, Appellee.
    No. 4D03-2731.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Michael J. Satz, State Attorney, and James P. McLane, Assistant State Attorney, Fort Lauderdale, for appellant.
    Steven A. Cohen of Steven A. Cohen, Esq., P.A., West Palm Beach, and Guy P. Fronstin, Boca Raton, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Russell SCHWARTZBERG, Appellee.
    No. 4D03-3041.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Robert David Malove, North Miami, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Tony McWHORTER, Appellee.
    No. 4D03-3471.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Jonathan Meltz, Miami, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Susan KUSOVKA, Appellee.
    No. 4D03-3945.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Stephen, Lustig, Fort Lauderdale, for appellee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Cardell ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4168.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Cardell Adams, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Cardell Adams appeals the summary denial of his post-conviction motion. In ground one, Adams alleged that his trial attorney provided ineffective assistance by not investigating or calling a witness who would have provided favorable testimony. In response, the state argued the motion was untimely. The state did not address the merits and the attached records do not refute this claim. However, the motion was timely filed within two years after the conviction and sentence became final on direct appeal. Accordingly, we reverse and remand for an evidentiary hearing or for attachment of portions of the record that conclusively demonstrate appellant is entitled to no relief.

FARMER, C.J., KLEIN and HAZOURI, JJ., concur.


text:
    STATE of Florida, FLORIDA PAROLE COMMISSION, Petitioner, v. Michael KENDRICK, Respondent.
    No. 4D03-4545.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Susan Schwartz, Tallahassee, for petitioner.
    Alan H. Schreiber, Public Defender, and Donald J. Cannarozzi, Assistant Public Defender, Fort Lauderdale, for respondent.
   PER CURIAM.

After violating probation on count II, Michael Kendrick was credited with time served in prison on count I against his new term of imprisonment. While on conditional release supervision, he moved the court for correction of his sentence due to an unintended result — in that he was being required to serve more time than anticipated — asking for a downward modification of his sentence to effectuate the intention of all parties to his plea agreement. Instead of modifying his sentence, the trial court issued an order terminating his supervised release. The order was entered without notice to the State of Florida Parole Commission, which was charged with supervising Kendrick’s conditional release.

The Commission filed the instant petition for writ of certiorari challenging the order. The Commission argues that, while the trial court could have resentenced Kendrick in accordance with his plea or allowed him to withdraw his plea, it did neither, but instead divested the Commission, a part of the executive branch, from its supervisory authority in violation of the separation of powers doctrine, see generally Marsh v. Garwood, 65 So.2d 15, 21 (Fla.1953), and without notice, though its authority was affected, see generally Singletary v. Duggins, 724 So.2d 1234 (Fla. 3d DCA 1999). Kendrick concedes that it was error for the trial court merely .to terminate his supervised release rather than resentencing him in such a way as to accomplish that result.

Accordingly, we grant the petition, quash the order on review, and remand for the trial court once again to address Kendrick’s motion, so that it may resentence him if it determines resentencing is warranted.

STEVENSON, SHAHOOD and GROSS, JJ., concur.


text:
    Donald L. COOK, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4927.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Donald L. Cook, Clermont, pro se.
    No appearance required for appellee.
   PER CURIAM.

Donald Cook appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Cook was sentenced as a habitual felony offender to 25 years in prison for attempted first degree murder, a life felony. Before the enactment of Chapter 95-182, Laws of .Florida, life felonies were. not subject to habitual offender enhancement. Lamont v. State, 610 So.2d 435 (Fla.1992). Chapter 95-182 was declared unconstitutional as violating the single subject requirement. State v. Thompson, 750 So.2d 643 (Fla.1999). Remedial legislation closed the window period on May 24, 1997. Lewis v. State, 764 So.2d 874 (Fla. 4th DCA 2000). Cook committed his offense on May 4,1997.

Accordingly, Cook’s habitual offender sentence for the life felony of attempted first degree murder is illegal. Kinsey v. State, 831 So.2d 1253 (Fla. 2d DCA 2002); see also Lowe v. State, 786 So.2d 1194 (Fla. 2d DCA 2001); Woodson v. State, 777 So.2d 1167 (Fla. 3d DCA 2001);. James v. State, 775 So.2d 347 (Fla. 1st DCA 2000). We reverse the trial court’s order denying Cook’s motion and remand the case for resentencing on the attempted first degree murder conviction. Cook shall be resen-tenced under the 1994 sentencing guidelines as he is also within the window period of Heggs v. State, 759 So.2d 620 (Fla.2000). The court may impose an upward departure sentence for valid reasons. Everett v. State, 770 So.2d 192 (Fla. 2d DCA 2000).

POLEN, STEVENSON and MAY, JJ., concur.


text:
    OLD CITY, L.C., etc., Appellant, v. Steve CHAPMAN, et al. Appellee.
    Nos. 5D03-3185, 5D03-3186, 5D03-3187.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    Jerold I. Budney and Avi Benayoun, Greenberg Traurig, P.A., Ft. Lauderdale, for Appellant.
    Sean P. Sheppard, Scott and Sheppard, P.A., St. Augustine, for Appellee.
   CONFESSION OF ERROR

PER CURIAM.

Pursuant to Appellee’s confession of error, the Order of Final Summary Judgment, rendered August 22, 2003, is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

PETERSON, PALMER, and ORFINGER, JJ., concur.


text:
    Azim MERALI, Petitioner, v. Kenneth JENNE, Sheriff of Broward County, Florida, Respondent.
    No. 4D04-1069.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2004.
    Michael H. Wolf of Michael H. Wolf & Associates, LLC, Sunrise, for petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is granted because it appears on the face of the record that petitioner was not brought before a court within forty-eight hours of his arrest. See Fla. Fam. L.R.P. 12.615(c)(2)(B).

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


author: I ¡WHIPPLE, J. 1 .WHIPPLE, J.

text:
    Marie M. BICKHAM v. Ewell D. BICKHAM, Jr.
    No. 2003 CA 0603.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.
    Order Denying Rehearing Feb. 9, 2004.

      Curtis K. Stafford, Baton Rouge, Counsel for Plaintiff/Appellant, Marie M. Bick-ham.
    Charles E. Griffin, II, St. Franeisville, Counsel for Defendant/Appellee, Ewell D. Bickham.
    Leu Ann Lester Greco, Baton Rouge, Counsel for Third Party Defendant/Appel-lee, East Baton Rouge Parish Sheriff.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   I ¡WHIPPLE, J.

Appellant, Marie M. Bickham, challenges a judgment of the trial court nullifying a sheriffs sale of property owned jointly with her former husband, appellee, Ewell D. Bickham, due to lack of notice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 11, 1999, Marie Bickham filed a “Petition for Partition by Licitation of Immovable Property Held in Common” seeking to sell five lots in Zachary Center Subdivision owned by the parties jointly. On March 29, 1999, Mr. Bickham filed an answer to the petition and propounded discovery requests. The parties eventually agreed to a consent judgment, which was signed by the trial court on July 14, 1999. Pursuant to the terms of the parties’ agreement, the judgment provided:

[that the subject] property be sold at a public sale for cash by the Sheriff ... in order to affect the Partition thereof, after the advertisement required by law for sale under execution.

The judgment further specified that:

the proceeds of the sale are to be divided as follows: from the gross proceeds of the sale the sum of Five Thousand Seven Hundred Forty-five and 96/100 ($5,745.96) Dollars is to be deducted from the sale which shall be paid to Marie M. Bickham ... as reimbursement for one-half (1/2) of the amounts proven to be due her for the payment of taxes on the property and the expenses of preservation thereof.
The remainder of the proceeds of this sale are to be divided evenly between Marie M. Bickham ... and Ewell D. Bickham, Jr., ... one-half (1/2) of the court costs and expenses of this sale are to be paid by Marie M. Bickham, ... and one-half (1/2) of said costs and expenses are to be deducted from the share of the Defendant Ewell D. Bick-ham, Jr. When the costs of court and expenses of the sale have been satisfied, the share of Marie M. Bickham ... is to be paid to her forthwith and the share of Ewell D. Bickham, Jr.’s [sic] shall be paid to him forthwith.

|sOn October 7, 1999, Mr. Bickham filed a “Motion to Set Aside the Sale of Immovable Property for Lack of Notice,” contending that without actual or legal notice to him, the property had been sold on September 8, 1999 by the East Baton Rouge Parish Sheriffs Office to Mrs. Bick-ham for the “nominal sum, far below a reasonable market price” of $20,000.00. Mr. Bickham further argued that because he had no notice, the sale should be set aside and Mrs. Bickham should be stayed from alienating, encumbering, damaging, destroying, or altering the property until the property could be resold at public auction to the highest bidder.

On November 17, 1999, Mrs. Bickham responded to the motion to set aside the sale of immovable property for lack of notice by filing peremptory exceptions of non-joinder of an indispensable party and no cause of action. Additionally, she filed a third-party demand against the Sheriff of East Baton Rouge Parish, Elmer B. Litchfield.

On December 7, 1999, Mr. Bickham filed a “Petition to Nullify Sheriffs Sale and for Damages,” essentially re-alleging the grounds set forth in his previous motion to set aside the sale, and naming Mrs. Bick-ham and the East Baton Rouge Sheriffs Office as defendants. Mr. Bickham’s petition further alleged that the sum of $2,530.00 had been deducted from the proceeds of the $20,000.00 sale and used to pay a lien held by Mathis Plumbing, this expenditure had not been approved or agreed upon in the consent judgment, the lack of notice prior to the sale was in violation of LSA-C.C.P. art. 4607, and Mr. Bickham had incurred recoverable damages and expenses, including attorneys fees, in having to protect his interest in the property at issue herein. Mr. Bickham contended that because the sale was 1¿held in violation of the due process rights recognized in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the sale should be re-advertised with notice to all parties, so that the property could be properly sold at auction to the highest bidder, with the sale proceeds subject only to those expenses set forth in the consent judgment.

Mrs. Bickham and the East Baton Rouge Sheriffs Office separately answered the petition, essentially denying any responsibility for providing notice of the sale as required by LSA-C.C.P. art. 4607. In the Sheriffs answer to Mrs. Bickham’s third party demand, he contended that the $20,000.00 bid payment was distributed in accordance with the bidder’s request and in accordance with the terms of the partition order. Specifically, the Sheriff stated that from the $20,000.00 bid payment, he paid the Mathis lien, the cost of the sale, and the bidder, Mrs. Bickham. The portion of the proceeds payable to Mr. Bick-ham was tendered to Mr. Bickham by the Sheriff; however, Mr. Bickham refused the funds and returned the check to the Sheriff.

The parties stipulated as to the facts and submitted the matter to the trial court for a decision as to whether the sale should be nullified for lack of notice. The trial court rendered written reasons for judgment on October 22, 2002, finding that notice was required by LSA-C.C.P. art. 4607 and that the duty to provide such notice was not the responsibility of the Sheriff. The trial court further found that the lack of proper notice to Mr. Bickham constituted valid grounds for nullifying the sale and returning the parties to their status quo, to the fullest extent possible. Further, the trial court assessed interest and all costs to Mrs. Bickham, as the party improperly invoking the sale. Judgment in conformity with the court’s ruling was signed by the trial court on January 3, 2003.

| sMrs. Bickham filed the instant appeal, claiming that the trial court erred: (1) in annulling a sheriffs sale ordered pursuant to the terms and conditions of a consent judgment entered into by the parties; and (2) in refusing to require that all parties be returned to their position prior to the sale, or if impossible to do so, in refusing to render judgment in her favor for damages sustained as a result of the invalidated sale.

DISCUSSION

Assignment of Error Number One

Mrs. Bickham first argues that the sale of the property herein by the East Baton Rouge Sheriff was held in accordance with the specific terms of the consent judgment entered into by the parties. Thus, she contends, the notice provisions of LSA-C.C.P. art. 4607 were impliedly waived as the sale was not a “judicial sale,” but rather an “extra-judicial” sale.

Mrs. Bickham further contends that Mennonite notice is not required where, as here, there was no seizing creditor involved and the parties had agreed to an “extra-judicial” sale of property via a consent judgment.

Mr. Bickham counters that the sale was invalid on two counts, namely: (1) he was not given notice of the sale as required by Mennonite, and (2) costs in the amount of $2,530.00 were deducted from the proceeds of the sale, which were not agreed to, nor provided for, in the consent judgment. He further claims that notice by newspaper publication was insufficient herein and that his due process rights under federal and state law were denied.

In nullifying the sale, the trial court stated in its written reasons for judgment:

Mrs. Bickham claims that no notice was required [from] the Sheriff or either party. Mrs. Bickham makes the argument that Mr. Bickham received notice when the consent judgment authorizing the sale was entered. Further, she argues that since |fithe consent judgment only required advertisement, the notice of the date of the sale required by article 4607 was impliedly waived. On the contrary, the Court believes that article 4607 mandates notice to all parties. Thus, employing a plain reading of article 4607, it is clear that notice is required and should have been given in this case.
Further, the Court is of the opinion that although article 4607 does require notice of the sale date to be given, the duty to give such notice is not the Sheriffs. Thus, there is no basis for any award of damages or attorney fees against the Sheriff. The Court also finds that the lack of notice to Mr. Bick-ham is a valid ground for nullification of the sale. Accordingly, it is the Court’s order that the sale be nullified. The parties should be returned to their status quo, to the extent possible. Interest and costs should be born by Mrs. Bick-ham, as the party invoking the sale with the clearest ability to have notified Mr. Bickham’s counsel of the sale date.

Thus, the initial issue is whether Mr. Bickham was, in fact, entitled to notice of this sale, considering the pertinent statutory provisions guiding partitions between co-owners. Louisiana Code of Civil Procedure article 4601 sets forth that a partition of property may be “either nonju-dicially or judicially.” Louisiana Code of Civil Procedure article 4607 addresses “Partition by licitation” and provides, as follows:

When a partition is to be made by licitation, the sale shall be conducted at public auction and after the advertisements required for judicial sales under execution. All counsel of record, including curators appointed to represent absentee defendants, and persons appearing in proper person shall be given notice of the sale date. At any time prior to the sale, the parties may agree upon a nonjudicial partition. (Emphasis added.)

Article 4607 clearly specifies that “[w]hen a partition is to be made by licitation,” notice of the sale “shall” be given to all parties. The plain wording of the statute does not specify, limit, or restrict the notice provisions to either “judicial” or “nonjudicial” partitions. Furthermore, “licitation” is defined by Black’s Law Dictionary 932-933 (7th ed.1999) as “[t]he offering for sale or bidding for purchase at an auction; esp. in civil law, an auction held to partition property held in common.”

|7In the instant case, the consent judgment entered into by the parties, subsequent to the filing of a petition for partition by licitation, provided that the “property be sold at a- public sale for cash by the Sheriff of this Parish in' order to affect the Partition thereof, after the advertisement required by law for sale.” Here-, the parties agreed that the property be partitioned by licitation, i.e., at public auction. As such, LSA-C.C.P. art. 4607 applied and governed the sale. After careful review, we reject as unsound Mrs. Bickham’s argument that the parties were exempt from compliance with the notice requirements set forth in article 4607 merely because they entered into a consent judgment agreeing to sell the property at a public sale. The provisions of LSA-C.C.P. art. 4607 governing the public sale of property partitioned by co-qwners, whether “judicially” or “nonju-dicially,” are controlling.

Moreover, we reject Mrs. Bickham’s argument that “advertisement” was tantamount to “notice” herein. As the Sheriff correctly argues, such an interpretation would effectively render meaningless the second sentence of article 4607, which provides that “notice” shall be given and then specifies in detail the persons to whom such notice shall be given.

The burden of proof on one challenging the validity of a sheriff sale is substantial to rebut that the sale was conducted as the law directs. National Information Services, Inc. v. Gottsegen, 98-528, pp. 13-14 (La.App. 5th Cir.6/1/99), 737 So.2d 909, 919, writs denied, 99-1936, 99-2366 (La.10/8/99), 751 So.2d 226, 228. Because Mr. Bickham established that notice of the sale was not issued as required by LSA-C.C.P. art. 4607, he met his | ¡¡substantial burden of proving the invalidity of the sale of the property at issue.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment, Mrs. Bickham contends that the trial court erred in “refusing to require that all parties, including Appellant, be returned to their position prior to the sale or if impossible to do so, to award a judgment for damages to Appellant.” In furtherance of this argument, Mrs. Bickham claims: (1) that the trial court committed legal error when it found that the .party requesting the sale had the duty of requesting issuance of notice of the sale, not the Sheriff; (2) that the trial court erred in not ordering the return of the purchase price to Marie Bickham; and (3) that the trial court erred in ordering that the Sheriffs costs and interest be assessed to her.

Duty to Provide Notice of the Sale

On appeal, Mrs. Bickham argues that any duty to provide notice of the sale was owed by the Sheriff. In response, the Sheriff counters that his office was not responsible for providing notice, where the party invoking the sale failed to do so.

We recognize that although LSA-C.C.P. art. 4607 provides that notice of the date of sale be given, it does not specifically place the responsibility for providing that notice upon the sheriff. Further, we note that certain |9other statutes expressly require that the sheriff provide notice. See LSA-C.C.P. arts. 2293 and 2721.

Nonetheless, absent any statutory or jurisprudential authority to the contrary, and because Mrs. Bickham filed the initial petition for partition by licitation of immovable property, we find ho error in the trial court’s conclusion that Mrs. Bickham was responsible for providing or requesting the required notice of the sale, as she was “the party invoking the sale with the clearest ability to have notified Mr. Bick-ham’s counsel of the sale date.”

Also, though LSA-C.C.P. art. 4607 does not specify which party is to procure the requisite “advertisements required for judicial sales under execution,” Mrs. Bick-ham assumed the duty of publishing those advertisements enlisted in LSA-C.C.P. art. 4607. Thus, we find no error in the ruling that-she had or assumed the duty to request or provide notice.

Return of Purchase Price

The judgment of the trial court provides that “all parties are to be returned to status quo to the extent possible.” Mrs. Bickham argues that she is entitled to a return of the full purchase price, in order to return the parties to their respective positions before the sale. We disagree. Because we find no error in the trial court’s determination that the sale was null for lack of notice, and that she improperly invoked the sale,' we find no basis for her claim that she is entitled to a return of the entire purchase price.

Interest and Costs

The trial court found that interest and costs should be borne by Mrs. Bick-ham as she was “the party invoking the sale with the clearest ability to have notified Mr. Biekham’s counsel of the sale date.” We agree. The |inconsent judgment entered into by the parties provided that “one-half (1/2) of the court costs and expenses of this sale are to be paid by Marie M. Bickham... and one-half (1/2) of said costs and expenses are to be deducted from the share of the.Defendant, Ewell D. Bickham, Jr.” Because the sale was invalid due to lack of notice, we find that the trial court correctly assessed the costs of the invalid sale and interest to Marie Bickham.

Further, although the parties agreed, pursuant to the terms in the consent judgment, that each bear half of the costs of the sale, the consent judgment did not contemplate costs associated with an invalid sale. Thus, we find no error in the trial court’s assessment of interest and costs against Mrs. Bickham.

This assignment lacks merit.

CONCLUSION

For the above reasons, the January 3, 2003 judgment of the trial court nullifying the sale is affirmed. Costs are assessed against Marie M. Bickham, the appellant.

AFFIRMED.

On Application for Rehearing

1 .WHIPPLE, J.

Although the application for rehearing correctly points out that the parties were not married, the misclassification of the parties’ relationship was an editorial oversight and does not interdict the findings of this court concerning the substantive issues presented for our review.

      . The record does not reflect any disposition of the exceptions.

      . Because we find that notice of the sale was required pursuant to LSA-C.C.P. art. 4607, we pretermit discussion of Mr. Bickham’s claims regarding notice required pursuant to Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).

      . The Historical and Statutory notes of LSA-C.C.P. art. 4607 indicate that the statute was amended in 1990 by inserting a new second sentence listing persons entitled to notice of the sale date. In the current version, that sentence reads as follows: “AH counsel of record, including curators appointed to represent absentee defendants, and persons appearing in proper person shall be given notice of the sale date.” See Acts 1990, No. 832 § 1. A review of the legislative history of the Act indicates that while there was some discussion as to "who” should be given notice of the sale, there is no discussion or reference to which party is responsible- for providing notice.


author: DSUSAN M. CHEHARDY, Judge.

text:
    Sandra ULLRICH v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, Parish of Jefferson, State of Louisiana d/b/a West Jefferson General Hospital, Richard G. Helman, M.D., Anesthesia and Pain Management, Inc., Susan J. Estrada-Brodman, M.D., and ABC Insurance Company.
    No. 03-CA-958.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.
    Rehearing Denied Feb. 17, 2004.

      Gregory C. Bachaud, Stephen J. Horn-yak, Gretna, LA, for Plaintiff-Appellant, Sandra Ullrich.
    G. Scott Vezina, Vezina and Gattuso, L.L.C., Gretna, LA, for Defendants-Appel-lees, Anesthesia and Pain Management, Inc. and Susan J. Estrada-Brodmann, M.D.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   DSUSAN M. CHEHARDY, Judge.

This is a medical malpractice action, in which the plaintiff appeals a summary judgment that dismissed her lawsuit. We reverse and remand.

Sandra Ullrich filed suit against West Jefferson General Hospital, Dr. Richard Helman, Anesthesia and Pain Management, Inc. and Dr. Susan J. Estrada-Brod-mann, alleging that on or about November 22, 1999 the plaintiff underwent surgery by Dr. Helman in which her anesthesia was administered by Dr. Estrada-Brod-mann of Anesthesiology and Pain Management, Inc. The plaintiff alleged that as a result of inadequate care provided by the surgery staff and anesthesiologists, one of her teeth was knocked out and she swallowed it during surgery. She alleged that the tooth lodged in her lung and caused her to develop postoperative respiratory difficulty that continued for weeks afterward.

Approximately five weeks post-surgery, due to her continued respiratory complaints and loss of weight, a chest x-ray was finally ordered, which revealed she had a tooth lodged in her left lung. The tooth was removed by a physician. She asserted that, due to the failure of her treating physicians to order testing or x-rays |3following surgery, her treatment was not handled properly and she was given substandard care.

Anesthesia and Pain Management, Inc. and Dr. Estrada-Brodmann filed a Motion For Summary Judgment on the basis that the plaintiff had no expert testimony to carry her burden of proof pursuant to La. R.S. 9:2794. Movers noted the medical review panel found the evidence does not support the conclusion that the defendants failed to meet the applicable standard of care. The defendants asserted that expert testimony is necessary in this case to establish deviation from the applicable standard of care, because the defendants will present expert testimony establishing there was no deviation from the appropriate standard. The defendants argued that without an expert, the plaintiff cannot carry her burden of proof and, hence, the case against the movers should be dismissed on summary judgment.

In opposition, the plaintiff asserted that no medical expert testimony is necessary because the situation in this case is res ipsa loquitur. She contended the disputed material facts are whether a molar tooth was dislodged and whether she aspirated the dislodged tooth into her lung while she was under the treatment and care of the defendants during her hysterectomy. She stated that she went into surgery breathing normally, came out of surgery with breathing difficulties, subsequently the breathing difficulties were ascribed to a tooth lodged in her lung, and upon removal of the tooth her breathing returned to normal. Further, she pointed out, the finding of the medical review panel does not preclude a ^determination by the trier of fact that the defendants acted negligently. In support of her opposition the plaintiff attached an affidavit from Dr. Roland Caire, Jr., D.D.S., who examined her on June 12, 2000. He stated as follows, in pertinent part:

After radiographic and oral examination, it is noted that Ms. Ullrich is missing several teeth and she has periodontal disease which would contribute to loosening of teeth. It appears that a right maxillary molar was lost more recently than the other missing teeth. There is no healing socket evident in the radiograph, but there is a deep furrow in the soft tissue in this area.
With what I have available to me at this date, I can only speculate regarding the loss of this tooth. It is very possible that the tooth was loose at the time of the initial surgery. It could have been inadvertently extracted and pushed forward to its position in the lung during intubation or dislodged during removal of the respiratory apparatus and fallen down into the patient’s trachea. Because of bone loss in this area, the bleeding could have been minimal— there would be minimal damage to tissues in the extraction site. Because the patient reveals a history of fear and apathy regarding tooth care, and because of other missing teeth, she could have failed to notice the tooth’s absence.
This explanation is plausible given the information at my disposal.

In her own affidavit the plaintiff relates that she had no difficulty breathing before the surgery; she experienced difficulty breathing immediately after she came out of the effects of the anesthetic administered before her surgery; and after her surgery she experienced difficulty breathing, a pain in her chest, and coughed up a lot of mucus and sputum. She was in the hospital for a week and was told it was usually only two days to recover. She continued to have difficulty breathing.

Approximately five weeks after the surgery, when she went in for a checkup her doctor thought she was having an asthma attack. He took x-rays, which' showed |Ka tooth was lodged in her lung. On December 30, 1999 she underwent a procedure to remove the tooth from her lung. After removal of the tooth, she felt like she was back to normal, without any chest pain, breathing difficulty, or excess mucus or sputum. She believed a molar tooth was dislodged while she was under- anesthetic during her hysterectomy.

The defendants supplemented their Motion For Summary Judgment with the following Statement of Uncontested Facts:

1. Plaintiff suffered from advanced chronic periodontist [sic].
2. Plaintiff lost numerous teeth due to this condition.
3. Plaintiff had mobility in the vast majority of her remaining teeth.
4. Plaintiff had not seen ■ a dentist in the last five years as of March 2001.
5. Plaintiff had no respiratory problems upon discharge from her November 19,1999 surgery.
6.Plaintiff did not report tooth loss until five (5) weeks after surgery.

Together with copies of medical records, the defendants filed a copy of a comprehensive dental report by Dr. John A. Franck, Jr., D.D.S., who examined the plaintiff on May 25, 2001. We note, however, that the report is not admissible in support of the motion for summary judgment because it is not sworn, that is, it is not in the form of either testimony or affidavit. See McGill v. Cochran Sysco Foods, Div. of Sysco Corp., 29,154, p. 7 (La.App. 2 Cir. 2/26/97), 690 So.2d 952, 956, writ denied, 97-0798 (La.5/1/97), 693 So.2d 730.

The defendants noted that the only expert the plaintiff had consulted was a dentist and that she does not have an expert anesthesiologist to support her allegations.

After a hearing the trial court granted summary judgment and dismissed the claims against Anesthesia and Pain Management, Inc. and Dr. Susan Estrada-Brodmann. In oral reasons for judgment, the trial judge stated:

Ifil do not find that there was an obvious act of negligence on the part of the anesthesiologist. This is one of those kind of cases where an expert is required. The Court rejects the suggestions of the dentist who is not an anesthesiologist as to what their duties and responsibilities should be. It is for that reason that the law speaks to the necessity of an expert in the field of the same [as] that which the doctor is who has been challenged because that .doctor, that expert is well aware of the standard of care imposed upon that particular expertise. I da not find that an expert has been presented or sufficient evidence which creates a genuine issue of material fact such that this matter should go before a jury. I therefore grant the Motion for Summary Judgment.

On appeal the plaintiff asserts the trial court erred by ruling that an expert is required in this case, in not applying the exception of La.R.S. 9:2794(0 because the doctrine of res ipsa loquitur is applicable, and by not allowing the evidentiary process to continue beyond a hearing on a Motion for Summary Judgment.

La.R.S. 9:2794 provides that in a medical malpractice action against a physician in a particular specialty, the plaintiff has the burden of proving the following matters:

A. In a malpractice action based on the negligence of a physician ..., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
* * *
|7C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician.... The jury shall be further instructed that injury alone does not raise a presumption of the physician’s ... negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.

In Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La.1991), our supreme court outlined the burden of proof and appellate standard of review as follows:

In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained .... Resolution of each of these inquires are determinations of fact which should not be reversed on appeal absent manifest error. [Citations omitted.]

See also, Nicoll v. LoCoco, 97-83, pp. 5-6 (La.App. 5 Cir. 10/28/97), 701 So.2d 1062, 1065.

A plaintiff can prevail when she does not introduce an expert witness to testify as to the applicable standard of care, its breach, and causation, when a defendant/physician or a defense expert testifies regarding the standard of care and the objective evidence at trial is such that a lay jury can infer negligence from the facts. Pfiffner v. Correa, 94-0924, p. 2 (La.10/17/94), 643 So.2d 1228, 1230. “Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.” Id., 94-0924 at p. 8, 643 So.2d at 1233.

| RThe plaintiff argues that here an expert is not needed because it is reasonable to conclude that dislodging a loose tooth by pushing a tube down the person’s throat and allowing it to be aspirated into the patient’s lung is an act from which a lay person can infer negligence.

The doctrine of res ipsa loquitur applies when: (1) the accident would not normally occur in the absence of negligence, (2) there is an absence of direct evidence to explain the activities leading to the injury, and (3) the accident or injury was caused by an agency on instrumentality within the actual or constructive control of the defendant.... “Res ipsa loquitur applies when ‘circumstances suggest the defendant’s negligence as the most plausible explanation for the injury.’ ” ... Thus, plaintiffs must show that the injury would not normally occur in the absence of negligence. [Citations omitted.]

Dean v. Ochsner Medical Foundation Hosp. and Clinic, 99-466, p. 7 (La.App. 5 Cir. 11/10/99), 749 So.2d 36, 39-40.

The standard for applying res ipsa loquitur is whether reasonable minds could differ. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 668 (La.1989). As long as the fact-finder can reasonably conclude that plaintiffs injuries were, more probably than not, caused by defendant’s negligence under the particular facts of a ease, the doctrine of res ipsa loquitur applies. Goodliffe v. Parish Anesthesia Associates, 95-357 (La.App. 5 Cir. 10/18/95), 663 So.2d 769, 778, writ denied, 95-2780 (La.2/16/96), 667 So.2d 1051.

In this case it is clear that reasonable minds could differ. Defendants emphasize that the plaintiff already had numerous missing teeth, that her remaining teeth are mostly decaying and loose, and that the plaintiff herself was unaware the tooth was missing until x-rays showed it lodged in her lung. In contrast, plaintiff emphasizes that she had no respiratory problems prior to her surgery, she underwent surgery during which she was intu-bated through the mouth for anesthesia, following the surgery she complained of respiratory problems, and | ¿following the discovery and removal of the tooth several weeks later her respiratory problems ceased.

We note, further, that the malpractice review panel itself could find no literature regarding similar instances. That lack of finding could as easily be interpreted in plaintiffs favor as against her. We believe a jury could decide that the unexplained presence of the tooth in her lung was surely attributable to the intubation and/or other procedures performed by defendants during her surgery and, thus, that res ipsa loquitur is applicable. Therefore, the trial court erred in granting the motion for summary judgment.

Accordingly, the judgment is reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed against the defendants-appellees.

REVERSED AND REMANDED.

CANNELLA J., concurs.

fCANNELLA, J., concurs.

In my view there are material issues of fact that preclude summary judgment at this juncture of the case. Accordingly, I concur in the majority decision to reverse the summary judgment.

      . The anesthesiologist's last name is spelled "Estrada-Brodman” in the plaintiffs pleadings, but is spelled "Estrada-Brodmann” in the defendants' pleadings in the district court. We adopt the spelling employed by the defendant.

      . With respect to Anesthesia & Pain Management, Inc. and Dr. Susan J. Estrada-Brod-mann, the medical review panel stated:
      I. Based upon review of the anesthesia record, PACU record and medical records presented, there was no evidence indicating mouth trauma or new tooth loss.
      2. The patient did not complain of any new tooth loss during her hospitalization and postoperatively until she had a chest x-ray.
      3. None of the panelists have seen any case in the literature or in their personal practices of molar tooth loss from administration of general anesthesia.