author: KLEIN, J.

text:
    Millard J. BLANCHARD, Appellant, v. Carol O. BLANCHARD, Appellee.
    No. 4D02-3464.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Stephen N. Martyak, Palm Beach Gardens and Valentin Rodriguez of Valentin Rodriguez, P.A., West Palm Beach, for appellant.
    No brief filed for appellee.
   KLEIN, J.

Appellant’s marriage was dissolved in 1992 by a judgment which incorporated an agreement providing, among other things, that appellant would pay permanent alimony. He recently filed this action to terminate his alimony obligation, arguing that the alimony provisions of section 61.08, Florida Statutes (2002) are unconstitutional because they violate the right to privacy of Article I, section 23 of the Florida Constitution. The trial court denied relief. We conclude that, having agreed to pay alimony in a contract which also divided the parties’ property, the appellant is es-topped from now asserting that the alimony provision is unconstitutional. State ex rel. Watson v. Gray, 48 So.2d 84 (Fla.1950)(applying the doctrine of equitable estoppel). Affirmed.

POLEN, C.J., and GROSS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Iros GIRGIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1204.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Ian J. Goldstein of Goldstein & Jette, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant pled guilty to violation of probation and was sentenced to ninety days time served. The plea resulted in a felony conviction. Thereafter, appellant filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(Z). Appellant alleged that his public defender coerced him into entering the plea and failed to advise him that his plea would result in a felony conviction. These allegations were disputed by the lawyer.

At the hearing on appellant’s motion to withdraw, the trial court denied repeated requests by the assistant public defender to appoint conflict-free counsel for appellant. This was error. See Bullard v. State, 887 So.2d 1125 (Fla. 4th DCA 2003) and cases cited therein; see also Brown v. State, 835 So.2d 402 (Fla. 2d DCA 2003). We therefore reverse and remand for the trial court to appoint conflict-free counsel to represent appellant on his motion to withdraw the plea and to hold a new evi-dentiary hearing on said motion.

REVERSED and REMANDED.

POLEN, C.J., GUNTHER and TAYLOR, JJ., concur.


text:
    Thomas EMMANUEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-348.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm appellant’s, Thomas Emmanuel, conviction on the charge of impregnating a child under the age of sixteen; however, we remand for resentencing. Appellee concedes, and we agree, appellant must be resentenced under the 1994 sentencing guidelines rather than the 1995 sentencing guidelines with a corrected sc.oresheet as argued by appellee.

KLEIN, SHAHOOD and GROSS, JJ., concur.


text:
    Michael MIDDLETON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-634.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Michael Middleton, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, (Ft. Lauderdale), Assistant Attorney General, for appellee.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Michael Middleton appeals from an order denying his “Motion of Enquiries,” which we read as a denial of mandamus relief, and which we treat as a denial of a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. In his motion, Middleton sought enforcement of a May 23, 2002 order, which he claimed granted his 3.800 motion. However no copy of the May 23, 2002 order was provided, and although the circuit court docket sheet indicates that a 3.800 motion was forwarded to the trial judge on February 15, 2002, there is no indication that a ruling was issued on that motion on either May 23, 2002, or at any time thereafter. Moreover, the defendant’s 3.800 motion cannot be found in the court file. Accordingly, the trial court properly denied the relief sought. We affirm this ruling, without prejudice to defendant’s right to seek relief either by filing another copy of his February 15, 2002 motion, or by filing a new 3.800 motion.

Affirmed.


text:
    Courtney Aston GRIFFITHS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-808.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Bill Ullman, Miami, and Greg Sirota, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee. •
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Major v. State, 814 So.2d 424, 430 (Fla.2002); State v. Ginebra, 511 So.2d 960 (Fla.1987); State v. Richardson, 785 So.2d 585 (Fla. 3d DCA 2001).


text:
    Horatio SHARPE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-851.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Horatio Sharpe, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).


text:
    George E. HICKS, Appellant, v. Maria LUCIANO, Appellee.
    No. 4D01-4514.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Karen O’Brien Steger of Steger & Steger, P.A., Stuart, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm a non-final order ordering appellant to pay child support and awarding primary residential responsibility • to appellee, which provided that the court would review the custody and visitation provisions in several months. This affir-mance is without prejudice to either party seeking review from the order finally determining these issues.

KLEIN, GROSS and TAYLOR, JJ„ concur.


text:
    Rodrick J. SAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-753.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Rodrick J. Sams, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GODERICH, GREEN and RAMIREZ, JJ.
   PER CURIAM.

Based on the State’s proper partial confession of error, the defendant’s conviction and sentence as to Count IV is hereby vacated. See Fjord v. State, 634 So.2d 714, 715 (Fla. 4th DCA 1994). However, we affirm the remainder of the order denying the defendant’s motion to correct an illegal sentence. See Seccia v. State, 720 So.2d 580 (Fla. 1st DCA 1998); Waldburg v. State, 644 So.2d 608 (Fla. 1st DCA 1994).

Affirmed in part, reversed, in part, and remanded for resentencing.


text:
    Sara MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-612.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Sara Morales, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellant.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Jones v. State, 635 So.2d 41, 42-43 (Fla. 1st DCA 1994); Hedrick v. State, 543 So.2d 873, 874 (Fla. 3d DCA 1989)(“The plea agreement was fully explained to appellant in open court and his response indicates he was fully cognizant that he was expressly waiving his right to seek early release from his three years of detention, by appeal or otherwise”).


text:
    Darius L. THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-103.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Darius L. Thomas, in proper person.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before LEVY, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

The state properly concedes that the order denying post-conviction relief should be reversed and remanded. The trial court summarily denied the motion, and failed to attach any portion of the record to support its ruling. Thus, the record does not conclusively refute defendant’s facially viable claims. Wilcox v. State, 622 So.2d 132 (Fla. 3d DCA 1993); Jones v. State, 693 So.2d 1154 (Fla. 3d DCA 1997).

Reversed and remanded with directions.


text:
    Dallas WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3260.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Dallas Williams, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny Dallas William’s motion for rehearing. We have thoroughly examined the record below and considered the issues on appeal from the trial court’s denial of post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We find no reversible error.


text:
    Mauricio Pola GALIANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3139.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender for appellant.
    Charles J. Crist, Jr., Attorney General and Jill K. Traína, Assistant Attorney General for appellee.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

Galiano appeals his conviction and sentence for aggravated battery, following a jury trial. He first argues, and we agree, that the trial court erred in refusing to instruct the jury on both the defense of justifiable use of non-deadly force and the defense of justifiable use of deadly force where the evidence supported the same. See Curington v. State, 704 So.2d 1137, 1139-40 (Fla. 5th DCA 1998) (stating that “[wjhere evidence presented at trial supports an instruction on self-defense (use of deadly force as well as non-deadly force), it is error not to give it.”). We find no merit to his remaining point on appeal.

Accordingly, we reverse and remand for a new trial.


author: ORFINGER, J.

text:
    John Henry BUFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1315.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

John Henry Bufford appeals his conviction of robbery with a firearm. He contends that the trial court erred by denying his motion for a judgment of acquittal based on his contention that the State failed to prove that he used a firearm in the commission of the robbery. He further asserts that certain unobjected to comments made by the prosecutor during closing argument were improper and constitute fundamental error. We affirm.

A motion for judgment of acquittal is designed to challenge the legal sufficiency of the evidence. If the State presents competent evidence to establish each element of the crime, a motion for judgment of acquittal should be denied. State v. Williams, 742 So.2d 509, 510 (Fla. 1st DCA 1999). The court should not grant a motion for judgment of acquittal unless the evidence, when viewed in light most favorable to the State, fails to establish a prima facie case of guilt. Dupree v. State, 705 So.2d 90, 93 (Fla. 4th DCA 1998). In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that the fact-finder might fairly infer from the evidence. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). It is the trial judge’s task to review the evidence to determine the presence or absence of competent evidence from which a jury could infer guilt to the exclusion of all other inferences. State v. Law, 559 So.2d 187, 189 (Fla.1989). We review the record de novo to determine whether sufficient evidence supports the verdict. Williams, 742 So.2d at 511.

Bufford argues that the evidence was insufficient to demonstrate that he possessed a firearm during the commission of the robbery. However, at trial, Acosta, the victim, testified as follows:

A. Before I knew it, someone was right in my face. Actually what was in my face was a gun, and I noticed there was — it was a body behind the gun_
Q. Can you describe the gun generally?
A. It was black.
Q. Was it a big gun? First of all, was it a handgun or a rifle?
A. It was a handgun. Like — seemed like it was comfortable in his hand. I can’t give you a complete description of it, but I do remember seeing the front of it knowing that it was in his hand.
Q. Okay. Are you familiar, are you familiar with guns?
A. I’ve seen different types.
Q. Was it a small gun or a large gun? A. Say something that comfortably fits into one’s hand like a hand held gun.
* * *
Q. Okay. When the individual was pointing' — -was the gun pointing right at you?
A. Yeah, in my face.
* * *
A. I thought — I thought he was going to kill me. I thought he was going to throw himself into my car, take me, kill me, rape me. My purse was sitting in the front seat.
Q. Were you in fear of your life and in fear that he would shoot you?
A. Uh-huh.

This testimony was sufficient to support the trial court’s denial of Bufford’s motion for judgment of acquittal in relation to the allegation that he possessed a firearm during the commission of the robbery. Akins v. State, 838 So.2d 637 (Fla. 5th DCA 2003).

We also reject Bufford’s contention that the prosecutor made an improper closing argument. Our review of the State’s closing argument demonstrates that it was entirely appropriate. That may explain why Bufford’s trial counsel did not object to the State’s closing.

AFFIRMED.

GRIFFIN and MONACO, JJ, concur.

      . §§ 812.13(1) & (2)(a); 775.087, Fla. Stat. (2000).


author: TORPY, J.

text:
    STATE of Florida, Appellant, v. David Wayne THOMPSON, Appellee.
    No. 5D02-2546.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James R. Evans, of Evans and Alexander, Daytona Beach, for Appellee.
   TORPY, J.

State challenges a downward departure sentence. We conclude that the trial court improperly departed and, therefore, reverse the sentence and remand for re-sentencing.

In August of 2000, Appellee was involved in a traffic accident. A dispute with police who were investigating the incident culminated in his arrest and conviction for battery on a law enforcement officer. Ap-pellee was placed on two years’ probation in March of 2001.

On November 8, 2001, Appellee was charged with aggravated assault with a deadly weapon based upon an accusation that he intentionally drove his pick-up truck towards his mother-in-law. While this charge remained pending, Appellee was arrested for resisting a police officer with violence, arising out of an incident wherein Appellee struggled with and kicked a police officer who was investigating a disturbance involving Appellee.

Appellee subsequently pled no contest to violating his probation (based on the new arrests) and to the two new felony charges. A sentencing hearing was scheduled for August 8, 2002. At the sentencing hearing, several defense witnesses testified that Appellee had been abusing alcohol. Indeed, each of the three incidences for which charges were levied involved occasions wherein Appellee was under the influence of alcohol. Defense counsel acknowledged that, pursuant to sentencing guidelines, Appellee scored prison time. Counsel urged, however, that the court should depart from the guidelines due to Appellee’s need for alcohol abuse rehabilitation. After having heard the testimony and arguments of the attorneys, the trial judge concluded that Appellee had “a serious problem with alcohol [that caused Ap-pellee] to act in an unsophisticated manner.” Based thereon, the court chose to impose a downward departure probationary sentence, pursuant to section 921.0026(2)(j), Florida Statutes, (2002). For the reasons stated herein, we conclude that the imposition of the departure sentence was error.

Section 921.0026, Florida Statutes, contains a non-exclusive list of mitigating circumstances a court may use as the basis for a departure sentence. One such circumstance is where the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. § 921.0026(2)(j), Fla. Stat. This circumstance may constitute a basis for downward departure only when all three enumerated elements are found to exist. State v. White, 755 So.2d 830, 833 (Fla. 5th DCA 2000). Therefore, the offense for which departure is deemed appropriate must have been an isolated incident, committed in an unsophisticated manner, and for which the defendant had shown remorse. Id. Any departure based on these grounds must be supported by written reasons or orally pronounced findings of fact on each of the three elements. § 921.00265(2), Fla. Stat. (2002); State v. Sawyer, 753 So.2d 737 (Fla. 2d DCA 2000). Here, the trial judge only addressed the “unsophisticated manner” element but failed to state how any of the offenses were in fact committed in an unsophisticated way. The trial judge made no findings related to the other two elements, nor was there record evidence to support any conclusion that the offenses were isolated or that Appellee had shown remorse. Departure predicated upon section 921.0026(2)(j), Florida Statutes, therefore, was not proper.

Although the statutory list of mitigating circumstances upon which downward departure may be based is not intended to be exhaustive, the legislature has clearly prohibited departure on the basis of substance abuse or addiction. Section 921.0026(3), Florida Statutes, states as follows:

The defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor ... and does not, under any circumstances, justify a downward departure from the permissible sentencing range.

Here, the only stated basis for the court’s conclusion that departure was appropriate was a finding that Appellee abuses alcohol causing him to act in an unsophisticated manner. This basis for departure contravenes the plain language of the statute. Although the trial court properly could have imposed a departure sentence based on factors not specifically enumerated in the sentencing statute, it could not do so based on a factor specifically excluded as a valid basis for departure. The departure sentence here, therefore, cannot be affirmed.

The record in this case is unclear as to whether Appellee was induced to enter the plea by some promise or agreement as to a specific sentence, because the plea colloquy is not contained within the record on appeal. On remand, therefore, the court should determine whether Appellee entered an open plea to the court without agreement for a particular sentence. If so, the court should simply sentence Ap-pellee in accordance with the Criminal Punishment Code. § 921.002, Fla. Stat. (2001); State v. Norris, 724 So.2d 630 (Fla. 5th DCA 1998). If the record reveals that Appellee was induced to enter his plea based upon an agreement or promise for a particular sentence, Appellee shall be permitted to withdraw his plea and proceed to trial.

REVERSED and REMANDED.

PLEUS and MONACO, JJ., concur.


author: THOMPSON, C.J.

text:
    Matthew J. McKEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-89.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Robert Michael Edge, Esq. of Law Office of Robert Edge, P.A, Kissimmee, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Matthew J. McKee appeals the trial court’s order summarily denying part of the relief requested in his rule 3.800(a) motion. We reverse and remand for further proceedings.

Pursuant to a negotiated plea agreement, McKee pleaded guilty to one third-degree felony in each of 18 separate cases. Also, as part of the agreement, McKee pleaded guilty to two third-degree felonies in each of two separate cases. Pursuant to the plea agreement, he was sentenced to concurrent terms of 30 months, followed by 24 months of community control, and followed in turn by 18 months of probation as a youthful offender for each crime. In short, McKee was sentenced to concurrent six-year sentences consisting of two and a half years of incarceration followed by three and a half years of supervision.

McKee argued in his motion that the sentences he received in all 20 cases exceeded the statutory maximum of five years for the third-degree felonies to which he pleaded. The trial court granted the motion in part, and resentenced McKee in the 18 cases involving single convictions. However, the trial court denied relief in the two remaining cases. McKee pleaded guilty to two third-degree felonies in each of the two remaining cases. Because the court imposed concurrent sentences of six years, and his “aggregate sentence was below the statutory maximum of ten years for these two cases,” the trial court concluded that McKee was not entitled to relief.

The state candidly concedes that the “illegal sentences are apparent from the face of the record because [McKee] was sentenced concurrently to six total years on each third-degree felony,” but suggests that McKee “suffers no prejudice as a result of the sentence because even after remand the identical sentence can be imposed.” We conclude that the concurrent six-year sentences McKee received in the remaining two cases are illegal because they violate the five-year statutory maximum for third-degree felonies. While section 958.04(2)(d), Florida Statutes, of the Florida Youthful Offender Act allows commitment for a period of not more than six years, it only allows such a sentence “provided that any such commitment shall not exceed the maximum sentence for the offense for which the youthful offender has been convicted.” In the instant case, McKee should have received no more than five years for each conviction.

In Nguyen v. State, 566 So.2d 368 (Fla. 5th DCA 1990), in circumstances similar to the instant case, we reversed concurrent sentences of four years incarceration followed by two years supervision for two third-degree felonies, in light of section 958.04(2)(d). We noted that the trial court could “impose virtually the same punishment by giving appellant consecutive sentences, neither of which exceeds the ‘four plus two’ youthful offender formula.”

REVERSED and REMANDED for further proceedings.

PETERSON and PLEUS, JJ., concur.


text:
    Gary HARALSON, Appellant, v. STATE of Florida, et al., Appellee.
    No. 5D03-39.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Gary Haralson, Clermont, Pro Se.
    Beverly Wood Gibson, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee, Department of Corrections.
    No Appearance for Appellee, State of Florida.
   PER CURIAM.

Gary Haralson appeals the denial of his petition for writ of habeas corpus. He contends that the trial court erred when it denied his petition without affording him an opportunity to serve a reply to the response filed by the Florida Department of Corrections (“DOC”). We agree that Haralson should have been given the opportunity to file a reply to DOC’s response. See Fla. R.App. P. 9.100(k); Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). Accordingly, we reverse the order and remand for further proceedings so that Haralson has an opportunity to reply to DOC’s response.

REVERSED AND REMANDED.

GRIFFIN, ORFINGER and MONACO, JJ., concur.


author: SAWAYA, J.

text:
    OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, etc., Petitioner, v. HOMEAMERICAN CREDIT, INC., etc., Respondent.
    No. 5D02-3474.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Howard S. Marks, Samuel M. Nelson and Douglas G. Gartenlaub of Graham, Builder, Jones, Pratt & Marks, LLP, Winter Park, for Petitioner.
    Thomas H. Justice, III of Killgore, Pearlman, Stamp, Ornstein & Squires, P.A., Orlando, for Respondent.
   SAWAYA, J.

Old Republic National Title Insurance Company (Republic) seeks certiorari review of the trial court’s order requiring Republic to produce certain documents to HomeAmerican Credit, Inc., d/b/a Upland Mortgage (HomeAmerican). We grant the petition for writ of certiorari and quash, in part, the trial court’s order.

Republic, a corporation licensed and authorized to issue title insurance in Florida, issued a title insurance policy insuring Ho-meAmerican’s interest as mortgagee in a certain parcel of real property situated in Orange County, Florida. After the mortgagors defaulted on the mortgage loan and HomeAmerican acquired the property via a deed in lieu of foreclosure, HomeAmeri-can attempted to sell the property. A title search uncovered a recorded encumbrance that Republic had previously failed to discover. HomeAmerican asserted that the encumbrance was a defect in title that rendered title to the property unmarketable and demanded that Republic pay damages under the policy. Home-American’s complaint alleges that Republic refused to pay damages under the policy and that the failure to pay was done in bad faith. HomeAmerican reserved the right to plead for punitive damages upon a proper showing of statutory bad faith by Republic. In the answer to the complaint, Republic denies that HomeAmerican is entitled to coverage under the policy.

HomeAmerican sought production of documents from Republic including, inter alia, documents relating to Republic’s business policies and practices regarding its handling of claims and documents which “relate to any title claim litigation filed against OLD REPUBLIC from January 1,1999 to the present date, in the state of Florida.” Republic objected on the grounds that the discovery request was overbroad, vague, burdensome, and not reasonably calculated to lead to discoverable or admissible evidence. The trial court granted, in part, HomeAmerican’s motion to compel discovery ordering Republic to produce the policy and business practice documents and the title claim litigation documents.

When reviewing the propriety of a discovery order by certiorari, “the applicable standard of review is whether the challenged order is a departure from the essential requirements of the law, which causes material injury throughout the law suit [sic], leaving the petitioner with no other adequate remedy to review the alleged erroneous order.” Beverly Enterprises-Florida, Inc. v. Ives, 832 So.2d 161, 162 (Fla. 5th DCA 2002) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983)).

Under the facts and circumstances of this particular case, we find the discovery order departs from the essential requirements of the law. A cause of action for statutory bad faith pursuant to section 624.155(l)(b)l., Florida Statutes (2000), is premature unless there has been a determination of liability and extent of damages owed the insured under the first-party insurance policy. See Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla.2000). Hence, a party is not entitled to discovery of an insurer’s claim file or documents relating to the insurer’s business policies or practices regarding the handling of claims in an action for insurance benefits combined with a bad faith action until the insurer’s obligation to provide coverage has been established. See Liberty Mut. Ins. Co. v. Farm, Inc., 754 So.2d 865 (Fla. 3d DCA 2000) (holding that a discovery order in a bad faith action requiring disclosure of the insurer’s business practices was premature without a determination of the coverage issue); American Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347 (Fla. 5th DCA 1998) (holding that in a bad faith action, when the issue of coverage has not been determined, it is a departure from the essential requirements of the law to order disclosure of the insurer’s claims file and the insurer’s claims handling manuals and materials); State Farm Fire & Cas. Co. v. Martin, 673 So.2d 518 (Fla. 5th DCA 1996); see also Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289 (Fla.1991).

Therefore, because Republic’s obligation to provide coverage has yet to be determined, the trial court departed from the essential requirements of the law in ordering production of Republic’s title claim'litigation files and the documents relating to its business policies and practices regarding the handling of claims, leaving Republic with no adequate remedy to review the erroneous order. Accordingly, we grant the petition and quash the portion of the order compelling production of documents contained in Republic’s litigation files and the documents relating to its business policies and practices.

PETITION GRANTED; ORDER QUASHED in part.

THOMPSON, C.J., and PETERSON J., concur.


text:
    Donald J. SEGUI and St. Joseph’s Benevolent Alliance, Inc., Appellants, v. David MARGRILL, Appellee.
    No. 5D02-3398.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Larry T. Griggs of Larry T. Griggs, P.A., St. Augustine, for Appellant.
    Andrea R. Bateman of Aaronson, Austin, P.A., Winter Park, for Appellee.
   ON MOTION FOR SANCTIONS

PER CURIAM.

Appellants, Donald J. Sequi and St. Joseph’s Benevolent Alliance, Inc., have filed a motion with this court requesting the imposition of sanctions against appellee, David Margrill, for his failure to appear at court-ordered appellate mediation. Concluding that Margrill’s failure to appear violated this court’s mediation order, we grant the motion.

By order dated November 13, 2002, this court referred this case to appellate mediation. That order specifically stated that “parties with full settlement authority and counsel are required to attend mediation, unless excused from attendance by the mediator. Failure of an attorney or party to appear for a duly scheduled mediation conference or otherwise comply with the appellate mediation program procedures, without good cause, may result in imposition of sanctions by this court ..

Margrill admits he failed to appear for the mediation. Yet, in response to appellants’ request for sanctions, he contends that the imposition of sanctions is not appropriate because his attorney attended the mediation with “full settlement authority.” He further contends that sanctions are not warranted since, during the mediation he could have been contacted at all times by telephone, although he does not contend that he had requested or received permission from this court or the mediator to attend by telephone. We reject these arguments as meritless. We required Margrill to attend mediation because a party’s actual presence at mediation is often critical to its success. Counsel is clearly not a “party”, regardless of whether he or she is given authority to settle by the client.

Appropriate sanctions for a party’s failure to comply with the court’s order include the award of reasonable attorney’s fees and mediator fees. Although the order of referral to mediation does not specifically list the award of attorney’s fees as one possible sanction, no such specific reference is required. See Carbino v. Ward, 801 So.2d 1028 (Fla. 5th DCA 2001)(award-ing appellate attorney’s fees as a sanction for failure to appear at a mediation, although such fees were not specifically referenced in the sanction rule).

Appellants’ motion for sanctions specifically sought attorney’s fees in the amount of $1,384.50 and mediator fees in the amount of $100.00. Margrill’s response to the motion did not contest the reasonableness of those fees. Accordingly, we hereby impose sanctions in those amounts and direct Margrill to make payment of $1,484.50 to appellants’ counsel within 15 days from the date of this opinion.

MOTION GRANTED.

SAWAYA, PLEUS and ORFINGER, JJ., concur.


text:
    R.F., as Father of R.F. & C.F., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-3363.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.

      Alicia L. Brooks and Kelly A. Swartz of Brooks & Swartz, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   THOMPSON, C.J.

R.F. (“father”) appeals the trial court’s order denying his motion for reunification with his children, R.F. and C.F. We affirm.

On appeal, the father contends that the trial court should have ordered reunification because he had substantially complied with the case plan, and the home study was positive. Although section 39.521(3)(b), Florida Statutes, requires the trial court to place the children with the parent upon completion of a home study, this section and sections 39.522(2) and 39.701(8)(b), Florida Statutes, provide that the return to the parent is authorized only when the placement will not be detrimental to the children’s safety, well-being, and physical, mental, and emotional health. See also B.D.E. v. Department of Children and Family Services, 829 So.2d 359 (Fla. 1st DCA 2002).

At the reunification hearing, the department stated that the children remembered all that had occurred when the father would leave them alone for days at a time with no food or electricity while he was abusing drugs. The department explained that the children had not seen their father in two and a half years and had been adamant for the last year that they did not want to live with their father. Also, the children had indicated that the only reason that they spoke to their father on a weekly basis was because the contact was court-ordered. R.F., who was fifteen, stated that it was scary even being in the same room with his father, and being in the courtroom made him feel very uncomfortable.

The trial court ordered a recess and asked that the children meet with their father in the presence of the department and the guardian ad litem and allow the father to explain all that he had accomplished in the last three years. After the recess, the guardian ad litem gave the court a summary of the meeting and stated that the children told her that they were not interested in having any further visits with their father. The department stated that it still opposed reunification, and the trial court denied the father’s motion. The trial court noted that it would take time for the children to regain trust in their father. The trial court stated:

I will deny the motion, because I have to make sure the children are safe. And they are clearly, both, in a lot of pain. I can just look at them. They are not being dishonest. They are just really in a lot of pain. And that has to be resolved before I send them home. They are not in any condition to go back with their dad ... if these kids told me right now — -if they were even equivocal, they gave me any indication that they could go home, you know, we’d be looking at it differently. But, I’m looking at two kids who’ve got a lot of issues from what happened three years ago or whenever it was. So, everything you’ve done satisfies the black and white piece of paper, but it doesn’t satisfy that these children feel safe or they will be safe emotionally at home with you.

Based on the transcript and the record, we cannot say that the trial court abused its discretion in finding that reunification at that time would be detrimental to the children’s well-being. Compare B.D.E., 829 So.2d at 362-368 (although the trial court was mistaken in finding that the mother had not complied with the case plan, the trial court correctly denied the motion for reunification where the court had objectively reasonable concerns that reunification would be detrimental to the child’s safety, well-being, and physical, mental, and emotional health).

AFFIRMED.

ORFINGER and MONACO, JJ„ concur.


text:
    Frederick SODERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2796.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant was convicted of burglary and grand theft. He raises several points on appeal, only one of which merits discussion. Appellant contends that he was improperly convicted of grand theft because the state failed to introduce competent evidence that the value of the items stolen exceeded $300.00. § 812.014(2)(c)l, Fla. Stat. We agree and reverse his conviction and sentence on this charge.

Appellant burglarized an Alied Discount Tire store and removed several tools. At trial, the state established that the value of one of the tools, a clutch puller, was $100.00. No testimony was adduced, however, as to the value of the other items taken or attempted to be taken by Appellant from the premises. The owner of the tools, rather, testified that the cost of these items exceeded $300.00. Athough the owner certainly would have been competent to testify as to the market value of the stolen items, mere reference to the cost of these items is not sufficient to carry the state’s burden to support a grand theft charge. Negron v. State, 806 So.2d 104 (Fla.1974); Kitt v. State, 834 So.2d 390, 391 (Fla. 2d DCA 2003).

The judgment and sentence on the grand theft charge, therefore, are reversed. This cause is remanded to the circuit court so that judgment may be entered for petit theft and sentence imposed accordingly. Because the reduction of the grand theft conviction to petit theft will require that the circuit court amend the sentencing scoresheet, Appellant’s sentence on the burglary count is also reversed, and this cause is also remanded for re-sentencing on the burglary conviction.

AFFIRMED in part; REVERSED in part and REMANDED.

SAWAYA and PLEUS, JJ., concur.

      . Although the sentence imposed on Count I (burglary) is less than the statutory maximum and, therefore, legal, notwithstanding the amendment to the scoresheet, the trial judge might have considered the total score in determining what sentence is proper. Reconsideration of this sentence, therefore, is left to the discretion of the trial court, who may choose to impose the same sentence on this count.


text:
    Leslie R. ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1545.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Leslie R. Ortiz appeals his convictions and sentence for conspiracy to traffic and trafficking in more than 400 grams of Me-thylenedioxymethamphetamine, commonly known as “Ecstasy.” Ortiz contends that the trial court erred in denying his counsel’s motion to withdraw because a conflict of interest existed with another client who was also the State’s key witness in the instant case. We reverse.

A confidential informant for the police contacted an Angel Ben, a known drug dealer, in order to purchase 2,000 Ecstasy pills. Ben agreed to sell the 2,000 pills, but told the informant that because of the large number, he would need some time to get them from a supplier. Approximately one week later, Ben advised the confidential informant that he had obtained the 2,000 pills. The Appellant, Ortiz, was identified as Ben’s contact who delivered the drugs.

Ortiz was arrested and charged with conspiracy to traffic and trafficking in more than 400 grams of Methylenedioxy-methamphetamine. Prior to trial, the assistant public defender moved to withdraw and to appoint conflict-free counsel on the grounds that the Office of the Public Defender had a substantial and continuing conflict of interest precluding it from representing Ortiz, in that it also represented the State’s key witness in another criminal proceeding, the confidential informant. A hearing was held on the matter and the trial court denied the motion, finding that no conflict existed.

“The Sixth Amendment right to the assistance of counsel contemplates legal representation that is effective and unimpaired by the existence of conflicting interests being represented by a single attorney.” Bellows v. State, 508 So.2d 1330, 1331 (Fla. 2d DCA 1987) (quoting Foster v. State, 387 So.2d 344, 345 (Fla.1980)). “To deny a motion for separate representation, where a risk of conflicting interest exists, is reversible error.” Id. There exists a risk of conflicting interest in the instant case as the State’s key witness against Ortiz, the confidential informant, was also being represented by the Office of the Public Defender. See id. (finding that conflict of interest existed when the public defender represented both the defendant and the confidential informant who was the state’s key witness against the defendant). It cannot be said that the apparent conflict created when defense counsel represented both appellant Ortiz and the State’s key witness is not prejudicial to Ortiz so as to have denied him his right to effective assistance of counsel.

We vacate Ortiz’s convictions and sentence and remand for retrial at which time the public defender should be allowed to withdraw, and other counsel be appointed.

REVERSED AND REMANDED.

PETERSON, PALMER and TORPY, JJ., concur.

      . §§ 893.135(1)0); 893.03(l)(a)39; 893.135(5), Fla. Stat. (2001).

      . Prior to the 1999 legislative amendments to section 925.036(3), once a public defender certified a conflict of interest based on adverse or hostile interests between two clients, and moved to withdraw from representation, the trial court had no discretion and was required to grant the motion. See, e.g., Valle v. State, 763 So.2d 1175 (Fla. 4th DCA 2000); see generally, 14 Fla. Jur.2d Criminal Law § 549 (2001). The applicable 1999 legislative amendment codified in section 27.53(3), Florida Statutes (2001), now provides:
      If, at any time during the representation of two or more indigents, the public defender determines that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without conflict of interest, or that none can be counseled by the public defender or his or her staff because of conflict of interest, the public defender shall file a motion to withdraw and move the court to appoint other counsel. The court shall review and may inquire or conduct a hearing into the adequacy of the public defender’s representations regarding a conflict of interest without requiring the disclosure of any confidential communications. The court shall permit withdrawal unless the court determines that the asserted conflict is not prejudicial to the indigent client, (emphasis added).
      Thus, the trial court now has the discretion to conduct a hearing when a conflict of interest has been asserted by the public defender.


author: MONACO, J.

text:
    Francis Michael NICHOLAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1898.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.
    Francis Michael Nicholas, Malone, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Francis Michael Nicholas appeals the written order of the trial court finding that he is a sexual predator. As he was denied a hearing on this issue, we reverse.

Nicholas pled no contest to a single count of lewd and lascivious assault on a child under 16 in violation of section 800.04, Florida Statutes (2001), and was sentenced to prison, followed by probation. Upon release from prison, Nicholas violated probation and was sentenced to an additional prison term. About two months later, the State filed a motion with the trial court requesting written findings that Nicholas is a sexual predator. The following day and without a hearing or notice to Nicholas, the trial court executed a written order finding Nicholas to be a sexual predator.

Section 775.21(4)(a)l, Florida Statutes (2001), provides that when the violation of § 800.04 is a second-degree felony, the defendant must have a previous conviction of certain enumerated offenses in order for the sexual predator designation to apply. See Garcia v. State, 827 So.2d 1102 (Fla. 2d DCA 2002). Moreover, if the defendant has a qualifying previous conviction, the defendant must not have been pardoned or the conviction set aside.

Nicholas asserts in this appeal, and his sentencing scoresheet appears to support him, that he has no qualifying prior convictions. He has not had the opportunity to assert this position in the trial court because he had no notice of the motion seeking sexual predator designation, and the designation was made without a hearing. In addition, nothing in the record reflects that the trial court made a determination regarding whether Nicholas had any qualifying previous convictions. If, indeed, he has no such qualifying offenses in his history, then Nicholas is not eligible for the designation, and it should be removed. See Johnson v. State, 716 So.2d 332 (Fla. 2d DCA 1998).

We conclude that the designation of Nicholas as a sexual predator must be reversed and remanded for a hearing, upon proper notice, to allow the State to demonstrate by competent evidence that Nicholas is qualified for the designation, and to allow Nicholas to contest that designation.

REVERSED and REMANDED.

PETERSON and ORFINGER, JJ„ concur.


text:
    Dena WILSON, Appellant, v. THE KRYSTAL COMPANY, Appellee.
    No. 5D02-2499.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2003.

      Richard Prospect, P.A., Port Orange, for Appellant.
    Jamie Billotte Moses and Richard W. Smith of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.
   MONACO, J.

This is an appeal brought by Dena Wilson from the denial of a motion for new trial of her negligence action against the appellee, The Krystal Company (“Krystal”). Because we find no abuse of discretion on the part of the trial court, we affirm.

Encapsulated, the testimony indicates that Ms. Wilson blacked out and fell through a plate glass window of a restaurant operated by Krystal. Ms. Wilson alleged that Krystal was negligent in installing plate glass, rather than safety glass, and was, therefore, in violation of various building codes and ordinances. At the time that she fainted Ms. Wilson was dehydrated and her blood sugar was low, as she had nothing to eat or drink since breakfast. She spent much of the day in the hot sun, and a short time before the incident, she felt faint and had to sit down. She chose to sit on a small wall under a canopy near the windows outside of the Krystal restaurant. When she began to feel better, she stood up to continue her activities. She began to feel lightheaded again, and with the aid of her companion tried to return to the area outside of the restaurant. When she neared the restaurant, however, she blacked out and fell through the window, sustaining injuries. Over her objection, the trial court gave a comparative negligence instruction. The jury returned a verdict for Ms. Wilson, but determined that she was 80% negligent. Ms. Wilson’s subsequent motion for a new trial was denied.

Although we have found no cases directly on point, after examining other cases in which sudden loss of consciousness is a factor we find no abuse of discretion in the giving of the comparative negligence instruction. It is welRestablished that if one experiences a sudden loss of consciousness while driving, and the affliction comes with no premonition or warning, the driver is not deemed to be negligent for an accident caused as a result. See, e.g., Bridges v. Speer, 79 So.2d 679 (Fla.1955). If, however, the driver has notice or knowledge of the existence of a physical impairment or condition that may impair the driver’s ability to control the automobile, and if the driver is involved in a collision when he or she faints or is otherwise unable to control the vehicle as a result of the physical impairment or condition, a jury may properly conclude that the driver was negligent. See, e.g., Goodis v. Finkelstein, 174 So.2d 600 (Fla. 3d DCA 1965); Malcolm v. Patrick, 147 So.2d 188 (Fla. 2d DCA), cert. denied, 148 So.2d 278 (Fla.1962). The existence of that notice or knowledge, however, presents an issue for the jury. Indeed, a driver’s unsubstantiated affidavit that he had migraines and low blood sugar that must have caused him suddenly to black out does not support a summary judgment, and presents a question for the trier of fact to resolve. See Schurer v. Koch, 741 So.2d 618 (Fla. 2d DCA 1999).

This same theory applies by analogy to the present ease. Ms. Wilson failed to eat or drink beyond a sip of a soft drink for an extended time, and spent most of the day in the sun. She became faint and had to sit down. After rising she told her friend that she felt worse, and needed to sit again. As she approached the exterior of the restaurant, she passed out and fell into the window. Based on these facts a jury could properly determine that in the time preceding her injury Ms. Wilson acted negligently, and that her negligence contributed in some part to her eventual injury. We conclude, therefore, that the comparative negligence instruction was appropriately given.

We likewise conclude that there was no error in denying Ms. Wilson’s motion for a new trial. A motion for new trial should not be granted “unless no reasonable jury could have reached the verdict rendered.” Taylor v. Ganas, 443 So.2d 251, 253 (Fla. 1st DCA 1983). A trial court is given broad discretionary latitude to grant or deny a motion for new trial because of its direct and superior vantage point of the trial proceedings. Pathway Financial v. Miami Intern. Realty Co., 588 So.2d 1000 (Fla. 3d DCA 1991). When a trial court denies such a motion, we review that determination by an abuse of discretion standard. See Brown v. Estate of A.P. Stuckey, 749 So.2d 490, 495 (Fla.1999). Here, Ms. Wilson argues that a new trial is necessary because there was no evidence that would authorize the jury to consider her comparative negligence. As related above, we hold that submission of the issue to the jury was not an abuse of discretion, and accordingly conclude that the trial court did not abuse its discretion in denying the motion for new trial. AFFIRMED.

THOMPSON, C. J., and TORPY, J., concur.


author: COPE, J.

text:
    Vincent MARGIOTTI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2862.
    District Court of Appeal of Florida, Third District.
    May 21, 2003.

      Vincent Margiotti, in proper person.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   On Rehearing Denied

COPE, J.

On consideration of the motion for rehearing, the court withdraws its previous opinion and substitutes the following opinion:

Vincent Margiotti appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Defendant-appellant Margiotti entered a guilty plea to several felonies in exchange for an eleven-year sentence as a habitual offender, with a ten-year mandatory term under the ten-twenty-life law. Defendant contends that he does not qualify as a habitual offender because one of the offenses used for habitualization was a misdemeanor. The defendant says it had been charged as a felony, but had subsequently been reduced. The defendant has produced some evidence which appears to support his contention, and the record now before us fails to conclusively refute his claim. Accordingly we reverse the order now before us and remand for a hearing on the question whether the defendant qualifies as a habitual offender. See Fla. R.App. P. 9.141(b)(2)(D). On remand the State is free to introduce any other convictions which may qualify the defendant as a habitual offender. See Gordon v. Moore, 832 So.2d 880, 881 (Fla. 3d DCA 2002); Delevaux v. State, 762 So.2d 1062 (Fla. 3d DCA 2000).

We affirm the trial court’s order with respect to the second issue. Defendant was given a ten-year mandatory minimum term under the ten-twenty-life law, because of possession of a firearm during the commission of the charged offenses. During the burglary, the defendant used an antique, inoperable firearm. The defendant argues that under ten-twenty-life law, an antique firearm is excluded and the mandatory minimum sentence must be vacated.

We agree with the trial court in rejecting this argument. The ten-twenty-life law applies where the offender “actually possessed a ‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001 ....”§ 775.087(2)(a)l„ Fla. Stat. (1999). Under subsection 790.001(6), Florida Statutes, “The term ‘firearm’ does not include an antique firearm unless the antique firearm is used in the commission of a crime.”

In this case the elderly victim testified that he was sleeping when the defendant entered his home and began choking him. The victim felt an object pressed against his head which he believed to be a gun. The victim did not see the gun at that time because it was dark and the defendant had placed clothing over the victim’s head so that the victim could not see. After the crime, the antique firearm was found on the bed where the victim had been sleeping. It had previously been in a drawer in furniture by the bed.

The possession or use of a firearm can be established by circumstantial evidence, see T.T. v. State, 459 So.2d 471 (Fla. 1st DCA 1984), and the victim’s testimony plus the location of the gun after the crime adequately support the conclusion that the antique firearm was used in this case.

Since the record supports the use of the firearm in the commission of the crime, the ten-twenty-life law was properly invoked. The fact that the gun was inoperable makes no difference. See Bentley v. State, 501 So.2d 600 (Fla.1987); Mitchell v. State, 698 So.2d 555, 558 (Fla. 2d DCA), approved on other grounds, 703 So.2d 1062 (Fla.1997); State v. Altman, 432 So.2d 159 (Fla. 3d DCA 1983). The trial court thus correctly denied relief on the claim that the ten-year mandatory minimum sentence could not lawfully be imposed under the facts of this case.

Affirmed in part, reversed in part and remanded for a hearing on the question whether the defendant qualifies as a habitual offender.

       The crime date was July 14, 1999.


author: 1PER CURIAM. 1TRAYLOR, J., 1KNOLL, Justice,

text:
    STATE of Louisiana v. Kenyon R. WILLIAMS.
    No. 2002-K-1406.
    Supreme Court of Louisiana.
    April 9, 2003.
    Rehearing Denied May 30, 2003.
    Christopher A. Aberle, Mandeville, for Applicant.
    Richard P. Ieyoub, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Gilbert V. Andry, IV, New Orleans, for Respondent.
   1PER CURIAM.

In this prosecution for multiple felony charges arising out of the invasion of adjoining house trailers belonging to Delwin Anear and his sister, Rolenda Merrick, by three men looking for drugs and money on a fall night in Plaquemines Parish, the trial court prohibited counsel from cross-examining Anear about the terms of a plea bargain he had struck with the state in an apparently unrelated cocaine prosecution because “the suggestion that this witness ... might be gaining something by testifying ... is purely and entirely speculative and the jury can gauge whether the prospect of leniency, tainted his testimony.” We granted relator’s application to reverse that ruling. Even assuming that the trial judge correctly assessed the scope of the plea bargain, exclusion of evidence regarding the disposition of Ancar’s cocaine charges nevertheless impaired relator’s right to confront and cross-examine the principal witness against him at trial and thereby | ^deprived jurors of relevant information they needed to assess reliably the credibility of Ancar’s testimony.

The charges in this case stemmed from an incident on the evening of November 4, 1999, when three men appeared at the doorway of Ancar’s trailer in Home Place along Highway 23 in Plaquemines Parish. In the confrontation that followed, the men pulled Anear out of the trailer, demanded that he tell them where he had the money and drugs, invaded the trailer also occupied by Ancar’s girlfriend, Yvonne Barthe-lemy, and his niece, Latisha Anear, and took over $6,000 in cash, an amount which Anear claimed combined a loan from his mother and money provided by the attorney he had hired in a civil case.

The confrontation then spilled over to the adjoining trailer occupied by Ancar’s sister, Rolenda Merrick, and her teenage son, Kendal Merrick, and ended in the shooting of Anear as the men fled in a late-model Cadillac. Testimony from the witnesses at the scene identified relator’s co-defendants, Coleman and Jackson, as two of the men involved in the incident. However, the third man had worn a ski mask which completely covered his face, and of all of the witnesses on the scene, only Anear could identify him. Anear had managed to break free from the grasp of Jackson outside of his sister’s trailer and he escaped to the neutral ground splitting the highway. He looked back and saw the three men running across Highway 23 for the Cadillac. At that moment, Anear told jurors, the third perpetrator pulled his ski mask off and Anear recognized relator, whom he had met on prior occasions. Moments later, as Anear began running back towards the trailers, a shot rang out from the Cadillac striking him in the chest. An-ear made his way back to his trailer where he collapsed on the floor in front of Bar-thelemy. Rolenda Merrick then placed her brother in her truck and drove him to the Port Sulfur Comprehensive |3Care Center for treatment of the gunshot wound. Along the way, Anear described the Cadillac used as the getaway vehicle. He also mentioned that he knew one of the perpetrators but did not identify him by name. Anear also neglected to provide that information to the police when they initially interviewed him at Charity Hospital in New Orleans, where he had been transported after emergency treatment at Comprehensive Care. However, in a photographic lineup conducted at the hospital on the following afternoon, Anear identified all three men, including relator, although neither he, nor any other witness at the scene, could identify the perpetrator who actually fired from the fleeing Cadillac.

Acting on the description of the getaway vehicle provided by Anear, the police stopped the Cadillac in Belle Chase, approximately an hour after the incident and some 20 to 30 miles away from the trailers in Home Place. Relator sat at the wheel; Jackson and Coleman rode as his passengers, although the vehicle was registered in Jackson’s name. The police did not find any firearms in the car or a ski mask, or $6,000 in cash. After Yvonne Barthelemy arrived at the scene of the arrest and identified Coleman and Jackson, the three men were taken to jail.

Relator was charged with one count of attempted first degree murder, one count of armed robbery, two counts of aggravated burglary, and two counts of false imprisonment while armed with a dangerous weapon, in violation of La.R.S. 14:27; 14:30; La.R.S. 14:64; La.R.S. 14:60; and La.R.S. 14:46.1, respectively. The state dismissed the armed robbery charge, and after a three-day jury trial in a consolidated proceeding also involving Jackson and Coleman, relator was found guilty of aggravated battery and two counts of unauthorized entry of an inhabited dwelling. The jury acquitted him on the two counts of false imprisonment. The co-defendants were also found guilty in differing combinations of verdicts returned |4by the jury. The trial court sentenced relator to a total of 13 years imprisonment at hard labor. On appeal, the Fourth Circuit affirmed the convictions and sentences after rejecting relator’s single assignment of error challenging the restrictions placed by the trial court on counsel’s cross-examination of An-ear. State v. Williams, 01-1464 (La.App. 4th Cir.5/1/01), 818 So.2d 274.

The restrictions at issue arose in the following context. In his direct testimony, Anear conceded that in July, 2000, only three months before trial in the present case, he had entered a guilty plea to possession of cocaine and received a suspended sentence and probation. On cross-examination, relator’s counsel asked Anear whether he had been charged initially in that prosecution with two counts of distribution of cocaine. Counsel thereby sought to establish that as a result of a plea bargain the state had dismissed one count of distribution and reduced the other count to simple possession of cocaine. Anear had then pleaded guilty under the auspices of La.C.Cr.P. art. 893(D)(2), which will permit him to move for expungement of the conviction if he successfully completes the probationary term imposed by the court.

The state immediately objected to any questions about the nature of Ancar’s plea bargain in the narcotics case and asked the court to excuse the jury. In the argument that followed, the court initially overruled the objection on grounds that the defense “can ask [the witness] whether or not there were any such deals to enter into this and attack his credibility.” However, the court then entertained testimony from Anear, who insisted he pled guilty only because he feared the mandatory five-year minimum sentence if convicted of distribution of cocaine, and from Patrick Hufft, the assistant district attorney responsible for prosecuting the case. Hufft maintained that problems with identifying Anear as the driver of the car used pin separate distributions to undercover officers at the end of September and the beginning of October, 1999, as well as Ancar’s first offender status, led to the favorable plea bargain. Both Anear and Hufft steadfastly denied that the plea in the cocaine case had any connection with the proceedings in the present case, and Hufft maintained that the decision to sentence Anear under La.C.Cr.P. art. 893(D)(2) was the court’s alone, at the request of defense counsel during the plea colloquy, without any input from him. Hufft also explained that after the present case was allotted to the same section of court as the cocaine case, he immediately transferred it to another section and scrupulously avoided any contact with the prosecutors in charge of the case.

On the basis of testimony by Anear and Hufft, the trial court reversed itself and sustained the state’s objection. The court thereby precluded defense counsel from establishing from the witness anything more than his conviction for possession of cocaine. Upon returning the jurors to the courtroom, the trial judge informed them that he had sustained the state’s objection and admonished them not to draw “any conclusions or speculate about anything” with regard to defense counsel’s question about the arrest for cocaine distribution.

After reviewing the record of the proceedings conducted outside of the jury’s presence, the Fourth Circuit agreed on appeal with the trial court that “there was no memorandum of understanding between the State and Anear concerning his testimony in the present case,” and that the terms of the plea bargain therefore “bore no relation to the instant case.” State v. Williams, 01-1464 at 6, 818 So.2d at 278. The dissent argued that “there could have been an oral commitment to testify in exchange for a reduced sentence ... the jury should have been aware of this possible motivation so that it could attach the appropriate amount of weight to it in | (¡deciding on a verdict.” Williams, 01-1464 at 1, 818 So.2d at 279 (Plotkin, J„ dissenting).

Although the trial court was sensitive to a defendant’s Sixth Amendment right of confrontation and cross-examination, the court ultimately made the wrong decision when it restricted counsel’s questioning of Anear and thereby impaired relator’s ability “to expose to the jury the facts from which [it] ... could appropriately draw inferences relating to the reliability of the witness.” Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988)(internal quotation marks and citations omitted). To the extent that exposure of a witness’s motivation “is a proper and important function of the constitutionally protected right of cross-examination,” State v. Nash, 475 So.2d 752, 755 (La.1985), this Court has held on numerous occasions that a witness’s “hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” State v. Brady, 381 So.2d 819, 822 (collecting cases); see also State v. Bowie, 00-3344, p. 9 (La.4/3/02), 813 So.2d 377, 385 (“A defendant’s right to demonstrate facts and circumstances which might influence the witness’s perceptions or color his testimony, thereby lessening the weight the fact-finder might accord his testimony, is guaranteed in both state and federal criminal proceedings and is an important function of the right to confront and cross-examine.”) (citations omitted). A witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding his conduct. Brady, 381 So.2d at 822; see also Nash, 475 So.2d at 755-56. Moreover, even after pending charges have been resolved, bias may arise-from a witness’s “vulnerable status as a probationer.” Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974).'

|7We need not decide whether, as relator argues, the trial court usurped the jury’s role as the fact-finder by denying jurors the opportunity to infer from the timing and nature of the plea bargain a connection between the narcotics prosecution and the present, case. Even assuming that Anear had no motive to protect a guilty plea premised on a specific condition (express or implied) that he would testify against relator and his co-defendants, the witness may have subjectively believed that continued cooperation with the state was necessary to protect his probationary status and to forestall any chance of going to jail. It was the fear of incarceration, Anear made clear in his testimony outside the jury’s presence, that led him to accept the plea bargain although he continued to profess his innocence. At the time he entered his guilty plea, Anear had been subpoenaed for a pre-trial hearing conducted in the present case only one week later. As relator’s counsel characterized Ancar’s situation, “So one week you were being prosecuted and the next week you’re the witness.... ” Jurors knew from An-car’s direct testimony that he had pleaded guilty to possession of cocaine and had. received probation. However, without the full context of the proceedings set out before them, including the terms of the plea bargain, jurors lacked any basis for assessing how intertwined the two cases may have been in Ancar’s mind, how closely associated the plea bargain in one case was to his appearance as a victim/witness in the other, and how much pressure Anear may have felt to cooperate in the prosecution of relator and his co-defendants, not only to protect his probationary status but also to distance himself from the darker implications arising out of the loss of thousands of dollars in cash from his trailer and testimony of family members that the perpetrators were looking for money and drugs only a month after he had been implicated in the cocaine sales to undercover agents.

|sThe trial court therefore erred in precluding defense counsel from delving into the details of Ancar’s prior cocaine conviction to expose for the jury’s consideration the sources of possible bias or partiality of the witness. While confrontation errors are subject to harmless-error analysis, Delaware v. Van Arsdall, 475 U.S. 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), we cannot say in the present case that the jury’s verdict was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). Anear was not the only witness at trial who purported to identify relator as one of the three perpetrators. In her direct testimony, Rolenda Merrick identified relator as the masked man who had entered her trailer. However, under cross-examination, Merrick conceded that she made that identification only “because they all was together when they got arrested,” information she had first obtained from Yvonne Barthelemy at the Detective Bureau of the Plaquemines Parish Sheriffs Office in the early morning hours following the incident. Merrick had therefore assumed, by process of elimination, that relator had been the man wearing the mask.

Ancar’s testimony was susceptible to the same challenge. In addition to conceding that he had not informed anyone of relator’s name before he viewed the photographic lineups shown to him in Charity Hospital on the day after the incident, including his sister to whom he had described the getaway vehicle during the trip to Comprehensive Care in Port Sulfur, Anear also acknowledged that Rolenda Merrick informed him in the hospital before the lineups that relator had been arrested along with Coleman and Jackson. Anear further conceded under cross-examination that he had not mentioned to anyone before the lineups that the third perpetrator had removed his ski mask just before entering the getaway car:

laQ. Do you remember giving the statement to the detective at the hospital the next day?
A. Yes.
Q. Did you tell him about anybody pulling a mask off?
A. No.
Q. So when did you first start saying to people that you saw him take off a mask?
A. Like three days, four days later.
Q. But you didn’t tell the detective that when he took a statement from you the next day and you didn’t tell your sister that even though it might have helped to apprehend the people that shot you, is that right?
A. No.

The state offered no evidence at trial that Anear had, in fact, conveyed to anyone connected with the investigation this critical piece of information before the witness’s appearance at the pre-trial hearing conducted in the present case one week after he entered his guilty plea in the narcotics case. Ancar’s failure to name relator to anyone before the photographic array had already eroded the credibility of his identification. Jurors may have viewed his testimony in an entirely different light if they had been afforded the opportunity to consider, in the context of the temporal and physical distance separating the incident from the arrests of the three men, the extent to which Ancar’s vulnerable status as a probationer may have colored his testimony to shore up his identification of relator.

The decision of the court of appeal is therefore reversed, relator’s conviction and sentence are vacated, and this case is remanded to the district court for further proceedings consistent with the views expressed herein.

COURT OF APPEAL DECISION REVERSED; CONVICTION AND SENTENCE VACATED; CASE REMANDED.

TRAYLOR and KNOLL, JJ„ dissent and assign reasons.

1TRAYLOR, J.,

dissenting.

I dissent from the majority’s overruling of the trial court and court of appeal. As the court of appeal ably pointed out, the record in this case establishes that Anear did not enter into a plea agreement with the state to testify against the defendant in exchange for leniency on his own pending charge. Furthermore, testimony from Anear and the assistant district attorney on Ancar’s case regarding Ancar’s plea was proffered and is preserved in the record. As no memorandum of understanding was confected between Anear and the state and considering the above proffered testimony, I agree with the court of appeal’s determination that Ancar’s plea agreement bore no relation to the instant case. Therefore, I would find no prejudice to the defendant due to the trial court’s denial of a cross examination of Anear before the jury.

1KNOLL, Justice,

dissenting.

I dissent from the majority’s reversal of defendant’s conviction. It is clear the jury knew from Ancar’s direct testimony that he pleaded guilty to possession of cocaine in an unrelated case and he received a suspended sentence and probation. In addition, Anear conceded in his testimony that his guilty plea to possession of cocaine and his sentencing occurred only three months prior to defendant’s trial in the present case. Accordingly, I find the jury was provided with information of Ancar’s criminal conviction, the sentence imposed, and the close temporal proximity of that disposition to Ancar’s testimony against the defendant in this trial. Viewing this evidence as a whole, I do not find any abridgment of defendant’s right to demonstrate facts and circumstances which might have affected Ancar’s testimony. Furthermore, at the time of Williams’s trial, Anear had no motive to protect his guilty plea. The majority’s interjection of Ancar’s subjective belief that his continued protection of his probationary status creates a dangerous precedence, one that is not supported by the jurisprudence. Therefore, I would affirm the defendant’s conviction and sentence.


author: 1WEIMER, Justice.

text:
    STATE of Louisiana v. Phillip LENTZ, Jr.
    No. 2002-K-1201.
    Supreme Court of Louisiana.
    April 9, 2003.
    Rehearing Denied May 30, 2003.

      Richard P. Ieyoub, Attorney General, Scott M. Perrilloux, District Attorney, Zata W. Ard, Hammond, David L. Guidry, Denham Springs, for Applicant.
    Marilyn M. Fournet, for Respondent.
   1WEIMER, Justice.

Defendant was convicted of two counts of attempted aggravated burglary. On appeal, the court determined that defendant’s counsel was ineligible to practice law at the time of the trial for failure to acquire the full complement of continuing legal education (CLE) credits for that year and, thus, defendant was not afforded his constitutional guarantee of assistance of counsel. Defendant’s convictions and sentences were reversed and the matter remanded to the trial court. The State’s application for a writ of certiorari was granted to consider the merits of that decision. State v. Lentz, 01-0386 (La.App. 1 Cir. 3/28/02), 813 So.2d 656, writ granted, 2002-1201 (La.11/27/02), 831 So.2d 268.

We decline to adopt a rule that representation by an attorney ineligible to practice law for failure to complete CLE requirements is a per se violation of defendant’s constitutional guarantee of assistance of counsel and reverse the decision of the court of appeal. The matter is remanded to the court of appeal for consideration of defendant’s other assignment of error.

REACTS AND PROCEDURAL BACKGROUND

Armed with a baseball bat, the defendant began beating on the door of a residence in Walker, Louisiana, about 2:00 a.m. on July 27, 1999. After one of the residents armed himself with a gun, defendant walked away. Thereafter, defendant approached a second residence in Walker and began beating on the door. The second resident fired shots after hearing the defendant break a window. Injured, the defendant ran from the home. He was found in a ditch and was arrested.

A jury found defendant guilty of two counts of attempted aggravated burglary. The trial court sentenced defendant to 10 years at hard labor on each count, to be served consecutively. The State filed a habitual offender bill of information charging the defendant as a third-felony offender. Subsequently, the defendant filed a motion for new trial alleging that his attorney was ineligible to practice law during the trial. The trial court denied the motion and, after a hearing, adjudicated the defendant a third-felony offender. The trial court then imposed a sentence of life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. The defendant appealed. His convictions and sentences were reversed. We granted certiorari to review the merits of the decision.

DISCUSSION

Some time following the trial, defendant learned that his attorney was ineligible to practice law at the time of his trial. He filed a motion for new trial based on the newly discovered evidence that his attorney was ineligible. The trial court conducted a hearing on the motion for new trial.

During the hearing, defendants trial counsel, Edward Bartholomew Domm, IV, testified that he was first notified in March or April that he was lacking some of the | (¡mandatory CLE hours. He contacted the Louisiana Bar Association explaining there were discrepancies in the transcript from the prior year. In mid-July he received another letter informing him that he needed the mandatory minimum hour of professionalism and that he had 30 days to complete the requirement or face disciplinary action. Counsel testified that he never received a letter from the Louisiana Bar Association notifying him that he was ineligible to practice law effective August 14, 2000. In fact, he testified he had not seen the letter prior to its introduction at the hearing.

Louisiana Supreme Court Rule 30, CLE Rule 3 establishes CLE requirements for each member of the Louisiana State Bar Association. Rule 3(c) provides in part:

Of the fifteen (15) hours of CLE required annually, not less that one (1) of such. hours shall concern legal ethics, and not less than one (1) of such hours shall concern professionalism.
Professionalism concerns the knowledge and skill of the law faithfully employed in the service of client and public good, and entails what is more broadly expected of attorneys. It includes courses on the duties of attorneys to the judicial system, courts, public, clients, and other attorneys; attorney competency; and pro bono obligations.

The trial judge denied defendant’s motion finding that Domm was temporarily ineligible, not suspended. “The fact that he was temporarily ineligible due to the lack of one hour of professionalism, 1 out of 15, does riot rise in my estimation to the level that would warrant granting [defendant’s] motion without getting to the second 1 ¿question of ineffective assistance of counsel.” The trial judge went on to state that had Domm been suspended, the result would be different.

On appeal, the defendant asserted as error the denial of his motion for a new trial. He argued that his convictions were invalid because his defense counsel was ineligible to practice law at the time of trial- He sought a per se rule that his constitutional guarantee of assistance of counsel was violated.

The court of appeal acknowledged the defendant’s right to counsel provided by the Sixth Amendment. Relying on Solina v. United States, 709 F.2d 160, (2d Cir. 1988), the appellate court found that representation by “[a]n unlicensed practitioner, unauthorized to practice law within the state, failed to meet the guarantee of counsel afforded a criminal defendant by our constitution.” Additionally, the court of appeal held that defendant did not have to prove that counsel’s inadequacy prejudiced him in any way.

The majority declined to follow the reasoning of the fourth circuit in State v. McKinsey, 2000-0406 (La.App. 4 Cir. 1/17/01) 779 So.2d 993, writ denied, 2001-0447 (La.1/25/02), 806 So.2d 667. Instead, the majority in this matter held that such an infraction can never be considered harmless error because assistance of counsel is fundamental to a fair trial. The court cited Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for the proposition that the right to counsel is crucial to protect the fundamental right to a fair trial.

liiln the instant case, Judge Whipple dissented from the majority, finding that the sole Louisiana case addressing the issue, the fourth circuit’s opinion in State v. McKinsey, was both well-reasoned and legally correct. Lentz, 813 So.2d at 658. In McKinsey, the defendant alleged ineffective assistance of counsel because his trial attorney was ineligible to practice law based upon noncompliance with state CLE requirements. The fourth circuit noted defendant failed to specify counsel’s prejudicial acts or cite any case law supporting his position. Based upon the record, the court found that defendant was ably represented by his attorney and held that in addition to alleging ineffectiveness defendant must show prejudice. McKinsey, 779 So.2d at 1000-1001.

We agree with the reasoning of the fourth circuit in McKinsey and with Judge Whipple’s dissent in this matter and decline to adopt a per se rule for ineffective assistance of counsel due to counsel’s failure to comply with all requirements of CLE. We believe the better rule is to review each situation on a case by case basis considering all factors — the extent of counsel’s noncompliance plus a showing that defendant was prejudiced by the representation.

In this matter, defendant’s trial commenced on August 15. According to the certificate from the Louisiana State Bar Association, defendant’s counsel was ineligible to practice law effective August 14, 2000, for “[n]on-compliance with mandatory continuing legal education requirements.” Unlike the attorney who represented the defendant in Solina v. United States, relied on by the majority in this matter, Domm was not an unlicensed practitioner, unauthorized to practice law. He was properly licensed and not under suspension at the time of the trial, albeit ineligible for noncompliance -with mandatory CLE requirements. The person | (¡representing Solina had graduated from law school, but had never passed a bar exam and was unlicenced to practice law. The court in Solina found the conviction had to be reversed because defendant lacked counsel. The court specifically stated:

In so construing the original understanding of the term “counsel” we do not intimate that any technical defect in the licensed status of a defendant’s representative would amount to a violation of the Sixth Amendment. We limit our decision in this case to situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character, e.g., Huckelbury v. State, 337 So.2d 400 (Fla.App.1976). [Footnote omitted.]

Solina, 709 F.2d at 167.

The mere absence of one hour of professionalism for the prior year’s CLE requirements does not automatically equate to ineffective assistance of counsel. Defense attorney’s CLE lapse appeared to have no bearing on his competence to represent defendant within the meaning of the Sixth Amendment right to counsel. We acknowledge there is a broad jurisprudential reluctance to overturn otherwise valid convictions on grounds of technical CLE infractions. Although not controlling, jurisprudence from other jurisdictions is instructive.

Judge Whipple cited other state court decisions similar to the instant case. The California Supreme Court addressed the question of whether representation by an attorney on inactive status because of failure to meet CLE requirements constitutes a per se denial of right to counsel guaranteed by the California Constitution in People v. Ngo, 14 Cal.4th 30, 57 Cal.Rptr.2d 456, 924 P.2d 97 (1996). Following a review of the professional rules relating to CLE requirements and the relationship of CLE requirements to competency, the California Supreme Court concluded that representation by an attorney involuntarily enrolled on inactive status for 17noncompliance of CLE requirements does not automatically amount to denial of counsel.

A Texas court in Henson v. State, 915 S.W.2d 186, 194-195 (Tex.App.-Corpus Christi 1996), concluded that a suspension for technical violations such as nonpayment of bar dues or noncompliance with CLE requirements does not deny a defendant the right to counsel. Additionally, in the absence of a showing that the attorney rendered ineffective assistance of counsel, the court concluded that defendant’s conviction would not be reversed.

Similarly, in United States v. Maria-Martinez, 143 F.3d 914 (5th Cir.1998), cert denied, 525 U.S. 1107, 119 S.Ct. 876, 142 L.Ed.2d 776 (1999), the defendant appealed a guilty plea entered while he was represented by an attorney who had been barred from practicing for six months in fifth circuit courts. The fifth circuit declined to establish a per se ineffectiveness rule in cases of representation by lawyers without proper credentials.

The question to be resolved by this court is whether reversal of defendant’s convictions is appropriate in the absence of any allegation or evidence that counsel’s ineligibility had any impact on his competence to try the case. The distinction drawn by the trial court between suspension and ineligibility in terms of ranking the importance is fully supported by this court’s rules. Although this court retains the ultimate authority to certify a member of the bar ineligible to practice law, enforcement of the MCLE program rests principally with the MCLE Committee, which reports directly to this court. La. 5.Ct. Rule 30, CLE Rule 6(e), Reg. 6.3. The only explicit prerequisite for reinstatement is that the member obtain the necessary |scredit hours and pay a nonwaivable reinstatement fee of $100 to the State Bar Association. La.S.Ct. Rule 30, CLE Rule 6, Reg. 6.5.

Suspension, on the other hand, is a sanction imposed by this court as a matter of La.S.Ct. Rule 19, § 10(2). A suspended attorney may be required to petition this court for reinstatement and must show, inter alia, that he or she “has not engaged nor attempted to engage in the unauthorized practice of law during the period of suspension or disbarment” and has not “engaged in any other professional misconduct since suspension or disbarment.” La. S.Ct. Rule 19, § 24(E)(2) and (E)(5). The unauthorized practice of law during a period of suspension imposed by this court is a far more serious infraction than similar conduct during a period of ineligibility imposed as a result of the failure to comply with mandatory CLE.

Under the circumstances of this case, we find the trial court and the State have accurately characterized the violation as a technical violation which in this case had no bearing on the attorney’s competence to try the case. The mandatory one hour of professionalism generally concerns “the knowledge and skill of the law faithfully employed in the service of client and public good, and entails what is broadly expected of attorneys.” La.S.Ct. Rule 30, CLE Rule 3(c). Clearly, the information imparted in a CLE course on professionalism is of use to a trial attorney.

Unrebutted testimony established that Domm had fulfilled all of his CLE hours except professionalism by the time of trial and was presumably fully informed of the newest developments in his field. The trial court found defendant could not show any connection between Domm’s CLE ineligibility and the fundamental fairness of the proceedings at trial. That finding was correct.

|BOur decision in this matter is not meant to sanction or excuse the attorney’s action or inaction. In rendering this opinion, we are in no way implying that professionalism is unimportant or insignificant. To the contrary, we recognize that professionalism is currently a mandatory requirement of continuing legal education. However, we are not prepared to hold that failure to satisfy the one hour of professionalism requirement is sufficient to establish a per se rule of ineffective assistance of counsel. Defendant must allege and prove prejudice. See Strickland v. Washington and State v. Washington as discussed in footnote 2 of this opinion.

CONCLUSION

For the foregoing reasons, we reverse the opinion rendered by the appellate court, reinstate the convictions and sentences, and remand the matter to the appellate court for consideration of defendant’s remaining assignment of error.

REVERSED AND REMANDED.

      . La. Sup.Ct. Rule 30, CLE Rule 6(b) and Reg. 6.1 provides that an attorney on the noncompliance list must furnish documentation of compliance within sixty (60) days.
      From the information in the record it is unclear whether the communication received by Domm in July was a noncompliance report
      form and, if so, why he was given only 30 days to correct the problem instead of the 60 days provided by CLE rules and regulations.
      We note Domm testified that he attended a one day seminar before the end of August which included the hour of professionalism he needed.

      . Under the standard for ineffective assistance of counsel set out in Strickland and adopted by this court in State v. Washington 491 So.2d 1337, 1339 (La.1986), a reviewing court must reverse a conviction if the defendant establishes that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.