author: SHARP, W., J.

text:
    Daniel A. SUNBY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-17.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    David D. Ege, Daytona Beach, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Patrick W. Kreehowski, Assistant Attorney General, Daytona Beach, for Respondent.
   SHARP, W., J.

Sunby seeks a writ of certiorari to review the circuit court’s decision, sitting in its appellate capacity. It overturned the county court’s order which granted Sun-by’s motion to suppress in Sunb/s DUI case. Because we conclude the circuit court improperly re-weighed and re-evaluated testimony and evidence presented at the suppression hearing, we grant the petition.

At the suppression hearing below, Officer Murphy testified he stopped Sunby’s car because it was weaving within its lane on the road. He cited Sunby for failure to maintain a single lane, and arrested him and charged him with DUI. The citation for failing to maintain a single lane was later dismissed because there was no evidence Sunby’s driving endangered the officer or anyone else. See § 316.089(1), Fla. Stat. (2002); Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002).

At the suppression hearing, the state presented a videotape of Sunby’s driving which had been made by Officer Murphy. The court found that there had been no infraction committed in Officer Murphy’s presence, based on the tape. However, the officer testified that before he began taping Sunby, he saw Sunby “striking the center line,” and driving more erratically than the tape indicated, thus justifying a reasonable suspicion on his part that Sun-by was impaired prior to stopping him. See generally State v. Carrillo, 506 So.2d 495 (Fla. 5th DCA 1987). The county court chose to disregard the officer’s testimony in ruling that Sunby’s driving, while not perfect, was not sufficiently erratic to give rise to a reasonable suspicion of impairment, under an objective standard.

This suppression order, when appealed to the circuit court, should have been presumed correct. See Maurer v. State, 668 So.2d 1077 (Fla. 5th DCA 1996). If there was competent substantial evidence to support the county court’s ruling, it should have been sustained. See Smiddy v. State, 627 So.2d 1257 (Fla. 3d DCA 1993). Like the District Court of Appeal, the circuit court sitting in its appellate capacity cannot reweigh the evidence and choose to believe a state witness which the county court chose not to believe. Hart v. State, 661 So.2d 54 (Fla. 2d DCA 1995); Maurer.

Here the circuit court did just that. In seeking to sustain the circuit court decision, the state claims the county court “ignored relevant facts” and thus misapplied the appropriate rule of law. But the county court as the “fact-finder” in this proceeding is free to ignore or place less emphasis on certain testimony, based on credibility determinations. It need not give equal weight to all the evidence presented at the suppression hearing. As the circuit court misapplied the law in reweighing the evidence, we vacate the circuit court’s opinion overturning the county court’s order granting suppression.

Petition for Writ of Certiorari GRANTED; Opinion VACATED; REMANDED with directions to reinstate the County Court’s Order.

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


source: Caselaw Access Project

license: Public Domain

text:
    Kenya L. PROCTOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-907.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Kenya L. Proctor, Punta Gorda, pro se.

      No Appearance for Appellee.
   SHARP, W., J.

Proctor seeks to appeal from an order denying his motion filed pursuant to Rule 3.850(a) challenging his 1995 criminal convictions. However, it appears untimely. In response to this court’s show cause order as to why this appeal should not be dismissed, Proctor alleges he did not receive a copy of the trial court’s order until February 5, 2003, or March 24, 2003.

The order sought to be appealed in this case was rendered on January 7, 2003. Under the Florida Appellate Rules, Proctor should have filed his notice of appeal no later than 30 days after the rendition date. Fla. R.App. P. 9.140(b)(1)(D) & (3). Failure to do so deprives this court of jurisdiction to hear the appeal.

Pursuant to the “mail box” rule this time period can be “extended” for an inmate in the state prison system by establishing that he or she delivered the notice of appeal to prison authorities for purposes of mailing, prior to the expiration date for filing the notice of appeal. The date of delivery is deemed the date of fifing or service under the mail box rule.

In this case, Proctor failed to assert or establish he timely delivered the notice of appeal to the prison authorities. Thus, we must dismiss this appeal for lack of jurisdiction.

However, this dismissal is without prejudice to file a petition in this court seeking a belated appeal pursuant to all the requirements of Rule 9.141. The allegations must be made under oath, and must establish a basis for granting a belated appeal. Such circumstances may include the fact that, due to no fault on the part of the prison inmate, the inmate did not receive a copy or notice of the order sought to be appealed until a time past the last day to timely file a notice of appeal, via the mail box rule, or so close thereto, that fifing a timely notice was difficult, and that, as a practical matter, the notice was filed as quickly as possible, after receipt or notice of the order, under the circumstances.

DISMISS without prejudice to file petition for belated appeal.

PETERSON and ORFINGER, JJ., concur.

      . Fla. R.App. P. 9.420(a)(2); Griffin v. Sistuenck, 816 So.2d 600 (Fla.2002); Thompson v. State, 761 So.2d 324 (Fla.2000); Haag v. State, 591 So.2d 614 (Fla.1992).


text:
    James ASHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-696.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.

      James Ashley, Lowell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Ashley filed a notice of appeal from the trial court’s summary denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a); however, the notice was untimely. The rendition date of the order was January 3, 2003. The notice of appeal was served on the state on February 10, 2003 and a copy was provided to prison officials for purposes of mailing on February 9, 2003. The notice was actually filed in the lower court on February 24, 2003. In order to be within the thirty day time limit, the notice of appeal should have been filed on or before February 3, 2003. See Fla. R.App. P. 9.110(b).

Accordingly, this court ordered Ashley to show cause why his appeal should not be dismissed for lack of jurisdiction. Ashley responded that he did not receive a copy of the denial of his motion until January 27, 2003, and thus under the “mail box rule,” he had thirty days from the date of its receipt in which to file his appeal.

This is not a “mail box” rule situation. The Florida Supreme Court formalized the “mail box” rule when it adopted Florida Rule of Appellate Procedure 9.420(a)(2).

A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing. Such a document shall be presumed to be timely filed if it contains a certificate of service certifying that the inmate placed the document in the hands of an institution official for mailing on a particular date, and if the document would have been timely filed had it been received and file-stamped by the court on that date, (emphasis added)

Applying that rule to this case, when Ashley delivered his notice of appeal to the prison officials on February 9, 2003, he was past the thirty-day deadline.

What Ashley is seeking in this case is a kind of “reverse mail box” rule which would make time deadlines for inmates run from the time a document is delivered to the prisoner by the prison officials. In his response, Ashley says he did not receive a copy of the trial court’s order denying his motion until January 27, 2003, and thus his filing of the notice of appeal was timely. However, at this time, there is no such rule.

In civil cases in which a party does not receive a copy of an order or judgment from the court until after the time for filing an appeal has expired, relief has been granted by allowing the party to file a motion to set aside the judgment or order because of clerical error. The lower court corrects or quashes the first order and renders another, thus allowing the thirty day time period to start running again.

This procedure might be appropriate in some criminal cases where the prisoner is not at fault. For instance if an appealable order or judgment was not delivered to the inmate by the prison officials until after the thirty day time period had expired or it was otherwise practically impossible to make a timely filing. Relief might also be appropriate by filing a petition for habeas corpus to seek a belated appeal pursuant to Rule 9.141. See Johnson v. State, 813 So.2d 230 (Fla. 1st DCA 2002); Green v. State, 804 So.2d 474 (Fla. 5th DCA 2002); Crocton v. State, 743 So.2d 1188 (Fla. 5th DCA 1999); Richardson v. State, 624 So.2d 804 (Fla. 1st DCA 1993).

Based on this record we have no recourse but to dismiss Ashley’s appeal for lack of jurisdiction without prejudice to seek a belated appeal.

DISMISSED.

SAWAYA and PLEUS, JJ., concur.

      . See Fla. R. Civ. P. 1.540(b); Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla. 1979); Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980).


author: SHARP, W., J.,

text:
    Richard ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-695.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Richard Andrews, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.,

Andrews appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking to correct his sentence. A Rule 3.800(a) motion is a proper vehicle to use to correct a scoresheet miscalculation. Because there are apparent errors on the face of the scoresheet, we reverse and remand this cause to the trial court.

In 1990, Andrews was convicted of armed burglary of a dwelling with a battery, sexual battery, robbery, and aggravated battery. He was classified as an habitual offender for all four crimes and received a life sentence for the burglary offense.

In 1997, Andrews filed a prior motion pursuant to Rule 3.800(a) to correct his sentence. It was granted. The trial court removed the habitual offender classification from the armed burglary because at the time Andrews committed this crime, the habitual offender statute did not apply to life felonies. See § 775.084(4)(a), Fla. Stat. (1989). In any event, the court imposed a life sentence under the guidelines.

In this current proceeding, Andrews argues he should be resentenced on all four counts under the sentencing guidelines because the 1989 amendment to the habitual offender statute, which was in effect at the time he committed these offenses, was held to be unconstitutional. See State v. Johnson, 616 So.2d 1 (Fla.1998). However, Andrews does not allege he was affected by the unconstitutional amendment and he has failed to demonstrate how his remaining three habitual offender sentences are illegal.

The trial court attached a copy of Andrews’ sentencing guidelines scoresheet which indicates his guidelines score resulted in a recommended sentence of life imprisonment. In his motion, Andrews notes his armed burglary offense should have been scored as the primary offense, but the scoresheet shows that the sexual battery offense was scored as primary. If he was entitled to de novo sentencing on the armed burglary offense after his habitual offender classification was removed, a new scoresheet should have been prepared with the burglary listed as primary.

Further, not only does the score-sheet fail to list the burglary as the primary offense, it also fails to indicate any life felony was scored. Strangely, the sexual battery conviction was one of the offenses for which Andrews was habitual-ized, so it should not have been included on the scoresheet. See Johnson v. State, 824 So.2d 1012 (Fla. 5th DCA 2002).

REVERSED and REMANDED for further proceedings.

GRIFFIN and PLEUS, JJ., concur.

      . Although burglary of a dwelling with a battery is normally a first degree felony punishable by life, Andrews conviction must have been reclassified to a life felony because of the weapon element.


author: PER CURIAM.

text:
    Gregory WHITNEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3853.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert E. Bodnar, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Gregory Siep Whitney appeals a post-judgment order denying credit for time served in jail.

Wfiiile Whitney was in jail in Seminole County, Orange County issued a warrant for his arrest. The record shows that the Orange County Sheriffs Office later returned the warrant unserved to the Criminal Division of the Circuit Court at the latter’s request. The trial court correctly denied the credit because the warrant was never executed. See Gethers v. State, 838 So.2d 504 (Fla.2003) (holding that “absent the execution of an arrest warrant, a defendant who is in jail in a specific county-pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.”)

AFFIRMED.

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


author: THOMPSON, C.J.

text:
    Paul JONES, Appellant, v. Julia Marie JONES, Appellee.
    No. 5D02-838.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    N. Lee Sasser, Jr. of Sasser & Weber, P.A., Orlando, for Appellee.
   THOMPSON, C.J.

Paul F. Jones (“former husband”) appeals the final judgment of dissolution of marriage. We are without jurisdiction and dismiss the appeal.

Through an apparent oversight, the final judgment was not served on the former husband. The former husband somehow learned of the final judgment and served a motion for rehearing. The motion was three days late under rule 1.530(b), Florida Rules of Civil Procedure, which requires that motions for a new trial in a non-jury action be served within ten days of the filing of the judgment. The trial court denied the motion for rehearing, but stated in its order:

IT IS FURTHER ORDERED AND ADJUDGED that a copy [of the final judgment] was not sent to Mr. Jones and that the times to file motions and appeals are extended to reflect this....

The former husband filed his notice of appeal more than 30 days after the judgment was filed. A notice of appeal must be filed within 30 days of rendition of the order to be reviewed. Fla. R.App. P. 9.100(b). A motion for rehearing delays rendition of a final order, see Rule 9.020(h), Florida Rules of Appellate Procedure, but only if the motion is timely, see, e.g., Scott v. State, Dept. of Children and Families, 804 So.2d 486 (Fla. 1st DCA 2001). The fact that the former husband did not receive immediate notice of the rendition of the final judgment does not extend the time to file the notice of appeal. See Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983). Furthermore, jurisdictional time limits may not be altered by the actions or inactions of the parties or the trial court. State v. Wagner, 825 So.2d 453 (Fla. 5th DCA 2002). The trial court was without authority to extend the time to file a motion for rehearing or to file the notice of appeal. See id.; Fla. R. Civ. P. 1.090(b). Because the notice of appeal was filed more than 30 days after the judgment was filed, because the untimely motion for rehearing did not delay rendition, and because the trial court had no authority to extend the filing time, the appeal is dismissed.

DISMISSED.

PETERSON and SAWAYA, JJ., concur.

      . Florida Rule of Civil Procedure 1.530(b) reads:
      (b) Time for Motion. A motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action or the date of the filing of the judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.

      . Florida Rule of Appellate Procedure 9.110(b) states:
      (b) Commencement. Jurisdiction of the court under this rule shall be invoked by filing 2 copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.

      . Rule 9.020 provides in part:
      (h) Rendition (of an Order). An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. However, unless another applicable rule of procedure specifically provides to the contrary, if a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for new trial, for rehearing, for clarification, for certification, to alter or amend, for judgment in accordance with prior motion for directed verdict, for arrest of judgment, to challenge the verdict, to correct a sentence or order of probation pursuant to Florida Rule of Criminal Procedure 3.800(b)(1), to withdraw a plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(Z), or to vacate an order based upon the recommendations of a hearing officer in accordance with Florida Family Law Rule of Procedure 12.491, the following exceptions apply: (1) If such a motion or motions have been filed, the final order shall not be deemed rendered with respect to any claim between the movant and any party against whom relief is sought by the motion or motions until the filing of a signed, written order disposing of all such motions between such parties.

      .This rule provides:
      (b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.


text:
    Steven ENGLEHART, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1363.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Steven Englehart, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to file a motion pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    Jeffrey Dwayne WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2624.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 761 So.2d 269 (Fla.1999); Miller v. State, 814 So.2d 1131 (Fla. 5th DCA 2002).

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


text:
    Walter ROJAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2122.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2003.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Inciarrano, 473 So.2d 1272 (Fla.1985).

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


text:
    Jerry BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-250.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2003.
    Laura McCarthy, Palm Bay, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hunter v. State, 817 So.2d 786 (Fla.2002).

SHARP, W., PETERSON and PALMER, JJ., concur.


author: Per Curiam.

text:
    Cedric S. DENSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-892.
    District Court of Appeal of Florida, Third District.
    May 28, 2003.
    Cedric S. Denson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   Per Curiam.

Affirmed. Ivy v. State, 754 So.2d 776 (Fla. 4th DCA 2000).


text:
    Mireya DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2422.
    District Court of Appeal of Florida, Third District.
    May 28, 2003.

      Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before LEVY, FLETCHER, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Evans v. State, 409 So.2d 1078 (Fla. 4th DCA 1981).


text:
    Bernard GRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1024.
    District Court of Appeal of Florida, Third District.
    May 28, 2003.
    Bernard Graham, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

As the merits of an order denying a motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c) are not subject to appellate review, the appeal is dismissed. See Lewis v. State, 778 So.2d 537 (Fla. 3d DCA 2001).


author: FLETCHER, Judge.

text:
    Beatrice GODOY and Jorge L. Godoy, Appellants, v. The STATE of Florida, Appellee.
    Nos. 3D02-3047, 3D02-3049.
    District Court of Appeal of Florida, Third District.
    May 28, 2003.
    George J. Vila, for appellants.
    Charles J. Crist, Jr., Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER, J. and NESBITT, Senior Judge.
   FLETCHER, Judge.

Beatrice Godoy and Jorge L. Godoy entered pleas of nolo contendere to an information charging them with voting fraud, and received a sentence of one year of probation, adjudication withheld. They now seek to have the records sealed under section 943.059, Florida Statutes (2002). The trial court denied their petition. Specifically the trial court stated:

“This type of crime goes to part of [the] Constitution[al] system, therefore, at this time I will use my discretion and deny your motion to seal.”

Supp. Record at 9.

Unfortunately, the trial judge (who had not previously been familiar with the case) did not properly exercise the discretion reserved to him by section 943.059. As set forth in Anderson v. State, 692 So.2d 250, 254 (Fla. 3d DCA 1997):

“[T]he exercise of discretion [under section 943.059] contemplates that the court will make its decision based on consideration of all the facts and circumstances, rather than deciding the petition solely on the nature of the charge.”

It is clear from the trial court’s ruling that only the nature of the charge was considered by it.

As a consequence we reverse the denial of the Godoys’ petition and remand the cause with instructions to the trial court to exercise its discretion in accordance with the injunction of Anderson; that is, to render its discretionary decision based on all of the facts and circumstances, not solely on the nature of the charge.

Reversed and remanded.

      . Casting votes from addresses where they did not reside, and with knowledge that they were not qualified electors, contrary to what they swore to on absentee ballots (in the 1997 City of Miami elections).

      . Section 943.059 prohibits the sealing of the records of a number of offenses, but also provides for the exercise of judicial discretion in relation to other offenses. In pertinent part it states:
      “This section does not confer any right to the sealing of any criminal history record and any request for sealing a criminal history record may be denied at the sole discretion of the court.”


text:
    SIRGANY INTERNATIONAL, INC., Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D02-2768.
    District Court of Appeal of Florida, Third District.
    May 28, 2003.

      Stephen M. Cody, Miami; Miguel A. De Grandy, for appellant.
    Christopher Mazzella, Inspector General, and Patra Liu, Assistant Inspector General; Robert A. Ginsburg, County Attorney, and Richard B. Rosenthal, Assistant County Attorney, for appellee.
    Before COPE, FLETCHER, and WELLS, JJ.
   FLETCHER, Judge.

Sirgany International, Inc., [Sirgany] has appealed the trial court’s order denying Sirgany’s petition for a writ of prohibition against the Miami Dade Inspector General. We treat Sirgany’s appeal as a petition for writ of certiorari and deny the petition.

The Miami-Dade Office of Inspector General has the responsibility to investigate various and sundry county matters, such as activities of contractors, their officers, agents and employees, lobbyists, county staff and elected officials in order to ensure compliance with contract specifications and to detect fraud. The Inspector General is appointed by the Miami-Dade Commission on Ethics and is delegated the power to subpoena witnesses and to require the production of records.

The Inspector General has sought the production of certain records of Sirgany in relation to Sirgany’s management and operation of its commercial activities at Miami International Airport. Sirgany has resisted producing the records, which resistance includes the filing in the circuit court of a petition for writ of prohibition, attempting to prevent the Inspector General from seeking to enforce the records subpoena. The trial court denied Sirga-ny’s prohibition petition and Sirgany has appealed that denial to this court, raising various reasons as to why the subpoena should be quashed.

We reject the appeal without reaching the substantive arguments as prohibition is not appropriately sought against the Inspector General. This is the case as prohibition is applicable only in relation to judicial or quasi-judicial actions. Broward County v. Florida Nat’l Prop., 613 So.2d 587 (Fla. 4th DCA 1993); Koulianos v. Phillips, 516 So.2d 68 (Fla. 2d DCA 1987). As the Inspector General does not exercise any judicial or quasi-judicial functions, but only makes recommendations to various boards, prohibition is not available.

The petition for writ of certiorari is denied.

      . Sirgany’s appeal was labeled as an appeal of a "non-final” order. Although the order is indeed non-final (at least one interrelated count remains unresolved by the trial court) it is not an appealable order. Rule 9.130, Fla. R.App.P.

      . Created by Section 2-1076 of the Miami-Dade Code.

      . Section 2-1076(c)(8). The above listing is far from complete.

      . The Commission is created by Article LXXVIII (Sections 2-1066 through 2-1075) of the Miami-Dade Code.

      . Section 2-1076(c)(3).

      . The Inspector General enforces subpoena by application to the circuit court. § 2-1076(c)(3).

      . See Fisher Island Holdings, LLC v. Miami-Dade County Comm’n on Ethics & Public Trust, 748 So.2d 381 (Fla. 3d DCA 2000).


author: COPE, J.

text:
    Donald A. HUTCHINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-28.
    District Court of Appeal of Florida, Third District.
    May 28, 2003.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   COPE, J.

Donald A. Hutchinson appeals an order denying his motion for postconviction relief. We reverse.

Defendant-appellant Hutchinson was sentenced to a ten-year term in federal prison. He was transferred to state court to face pending Florida charges. These were Miami-Dade County Circuit Court Case Nos. F01-35156 and F00-41836. The defendant entered into a plea bargain for a five-year term in each of the two state eases, the sentences to run concurrently with each other and concurrently with the federal sentence. It was clearly contemplated that upon pronouncement of sentence in the state court cases, the defendant would be returned to federal prison to resume serving his federal sentence.

Instead, the defendant was transported to the Florida prison system where he has begun serving his state sentences. Since there has been no agreement by the federal authorities to give him credit against the federal sentence for time spent in the state prison system, he now has as a practical matter a five-year term of incarceration in the Florida system, after which he would be returned to the federal system to serve the remainder of his federal ten-year term. This would amount in total to approximately fifteen years, which is contrary to the plea bargain.

The defendant argues, and we agree, that the defendant is entitled to specific performance of the Florida plea agreement. Taylor v. State, 710 So.2d 636, 637 (Fla. 3d DCA 1998). As permitted by the Taylor decision, the defendant requests that he be sentenced to time served on the Florida cases, so that he may be returned to federal custody for completion of his federal sentences. Id.

Accordingly, we reverse the order denying postconviction relief and remand with directions to resentence the defendant to time served on the Florida cases. The defendant is then to be returned to federal custody for completion of his federal sentence.

Reversed and remanded.


text:
    Joanne L. BUSBEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2449.
    District Court of Appeal of Florida, First District.
    May 29, 2003.
    Rehearing Denied June 11, 2003.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal is brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the record revealed no reversible errors up to the point that the appellant’s probation was revoked and a prison sentence imposed. However, at sentencing, the trial court orally sentenced the appellant to three years’ imprisonment. The next day, the trial court announced that it had made a mistake when it imposed only three years, and stated that it had intended to impose five years. Despite the appellant’s contemporaneous objection on double jeopardy grounds, the appellant’s sentence was increased.

Although we affirm the revocation of probation, we reverse the new sentence because a judge may not increase a legal sentence once the sentence has begun to be served. See Ashley v. State, 28 Fla. L. Weekly S18, — So.2d -, 2003 WL 60564 (Fla. January 9, 2003). We remand with instructions to the trial court to reinstate the original, orally-pronounced sentence.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

BOOTH, VAN NORTWICK, and HAWKES, JJ., concur.


text:
    S.B., Mother of B.P. and M.P., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-3346.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2003.
    Timothy A. Straus of Moyer, Straus & Patel, P.A., Altamonte Springs, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PER CURIAM.

We conclude that there is competent substantial evidence to support the findings of the trial court regarding dependency announced in open court. We remand, however, for entry of a written order in conformity to the court’s oral pronouncements. In addition, the trial court on remand shall make written findings with respect to M.P. in accordance with section 39.521(l)(f), Florida Statutes (2001).

AFFIRMED and REMANDED.

THOMPSON, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Caesar P. TRUMAN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D01-3825.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2003.
    Caesar P. Truman, Orlando, pro se.
    John D. Maher, Tallahassee, for Appel-lee.
   PER CURIAM.

The order dismissing the appeal to the Unemployment Appeals Commission is affirmed. See Horst v. Unemployment Appeals Comm’n, 725 So.2d 1266 (Fla. 2d DCA 1999) (affirming dismissal of appeal to commission where notice of appeal was untimely and employee did not respond to commission’s order to show cause).

AFFIRMED.

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


text:
    Anthony Field MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-584.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2003.
    Anthony Field Marshall, Arcadia, pro se.
    No Appearance for Appellee. ^
   THOMPSON, C.J.

After Marshall appealed the denial of his sixth Rule 3.850 motion, which raised a successive claim, this court issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999) (holding that the court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond). After reviewing Marshall’s response, we find it has no merit. Because Marshall has repeatedly abused the judicial system, we think he qualifies for this court’s “Enough is enough” rule. See, e.g., Harvey v. State, 836 So.2d 1102 (Fla. 5th DCA 2003); Davis v. State, 705 So.2d 133 (Fla. 5th DCA 1998); Isley v. State, 652 So.2d 409, 410-411 (Fla. 5th DCA 1995).

Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve our judicial resources, we prohibit Marshall from filing any additional pro se appeals, pleadings, motions, or petitions relating to his 1983 conviction for first-degree murder and sentence to life imprisonment which were affirmed in Marshall v. State, 459 So.2d 1059 (Fla. 5th DCA 1984). Any further pleadings filed in this court relating to his judgment and sentence in that case must be reviewed and signed by an attorney who is licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Marshall related to lower court case number CR82-388.

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.


author: ORFINGER, J.

text:
    Ahmad SAIDI, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2029.
    District Court of Appeal of Florida, Fifth District.
    May 30, 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.
   ORFINGER, J.

Ahmad Saidi appeals his conviction of sending written threats of death or bodily injury in violation of section 836.10, Florida Statutes (2001). The charge arose after Saidi sent various letters and papers to William Roy, the attorney representing Saidi’s former wife in a contentious post-judgment family law proceeding, and to the Circuit Court of Seminole County, Florida. While conceding that he authored and sent the letters and papers, Saidi argues that section 836.10 is unconstitutional as it is vague, overbroad, and infringes on his First Amendment rights. He also claims that the trial court erred in its instructions to the jury and by improperly prohibiting him from filing any pro se pleadings or papers in the future, as a condition of his probation. We affirm.

In 1998, attorney William Roy began representing Saidi’s former wife in the Saidis’ post-judgment dissolution dispute. Saidi proceeded pro se after at least five, and perhaps as many as ten attorneys, had withdrawn as his counsel. Saidi filed numerous pro se motions, bankruptcies and appeals during the course of the litigation. According to Roy, Saidi was very angry with him and the legal system, and referred to the courthouse as “the house of Satan,” and Roy as “the devil.” Saidi apparently became convinced that his former wife, Roy and the judges of Seminole County were conspiring against him. As the case progressed, Saidi’s frustration or anger with the legal system escalated, and increased security was required whenever Saidi appeared at the courthouse. Restraining orders were issued against Saidi for the protection of Roy, his wife, and Saidi’s former wife. Shortly after a confrontation with Roy in May, 2001, at the Seminole County Courthouse, Saidi filed with the court, and faxed to Roy, a document entitled “Notice of Filing Warning and Threats to Kill and Motion Requesting Scheduling of an Urgent Hearing.” That document included the following language:

3-SAIDI ... is giving this notice threatening to kill both of the Former Wife and her Counsel. In order for him to execute this killing!,] he is using his ONLY weapon that he has of his own and the weapon supplied to him by the contents of the pleadings that are filed by the Former Wife and ROY.
4-SAIDI is calling upon the Honorable Judge Debra Nelson to allow the parties using her Courtroom as battle ground for the fight to execute the killing. Judge Nelson however has ordered SAI-DI not to file any more motions in this case before she hears anything from the Appellate Court. Therefore, SAIDI, respectfully, moves the Honorable Judge Nelson to allow another Judge to preside over this legal and yet lethal fight.
5-SAIDI is, further, appealing to Judge Nelson to allow scheduling an urgent hearing for three (3) hours for an evi-dentiary hearing to test the first weapon that SAIDI is using and hear his MOTION TO REOPEN THE HEARING, dated April 27, 2001[,] as stated above....
6-SAIDI calls upon Judge Nelson, this Court and the legal system to respond to the call of the duty and implement the legal system’s rules, procedure and proper powers to secure justice and protect the interest of all parties, the Former Wife, the Former Husband, their children, all citizens of the state and safe guard [sic] the legal system. This Court has the obligations and has the jurisdiction and the power to halt ROY’S unethical and criminal actions. SAIDI and the society can not [sic] afford for ROY to continue to be a loose cannon equipped with the pretence [sic] that he is an officer of the court and he does what ever [sic] he please[s]. USING THE WEAPON OF THE TRUTH WILL SET EVERY ONE FREE. PLEASE LET U.S. PROVIDE A FREE FORUOM [SIC] FOR THE TRUTH TO SURFACE.

(emphasis in original).

About the same time, Saidi sent Roy a letter that said:

Mr. Roy: You have succeeded in the past in prosecuting your unprofounded motion to show cause which led, temporary [sic], to strike my pre-judgment pleadings, because you were in a dark arena alone and Judge Nelson was ready, willing and able to stamp your proposed self-serving orders to execute a conspiracy plan that was spoon fed to her by Judge Eaton and you were the mover behind this action. At this time, things have changed, the arena is very well-lighted, Judge Eaton is gone and he will be prosecuted, Judge Nelson will be next and now you are in the frying pan.
As the most cheap shot, and the last attempt of desperation for your dying future as a counsel, you and you[r] client have brought my children into the ring. Your client knows how I tried so hard to keep the children out of this saga. You know what? I think you both have done me a favor and brought the weapon that will kill both of you. This time, I am still equipped with the truth and in order of reminding you of my deep conviction of the same; I am, enclosing with this letter the third page of my letter to you on February 23, 2001 to make you more familiar with my weapon. Please you and you[r] client, stay away from children and their LAKE SHEPHERD asset as your own. Back off? Otherwise you will be kicked in your behinds in your attempts to deprive my children of their secured future to live the American way that is provided to them by an Easterner, a Palestinian who cherishes his children as the most precious thing in life. Please consult the literature to know about this fact.
Mr. Roy: ... This is a racketeering income by a foxy and unethical individual. It is a curse for him to be called, an attorney, a counsel and I was fool when addressed him as a judge.
Since the case is [sic] no longer deal with divorce and did not consider the merits of the issues and its fought solely on deception, perjury, misrepresentation of the facts, changing the official and public records by a bias and misled Judge, over maneuvered by a crook advocate, I will gather all of the forces of good around me to stand beside me to fight the evil in you and your innocent client, I do mean she was the most innocent, decent, and just good person that I knew! Unfortunately[,] she has changed. You both do not forget that the most lethal weapon of them all is the TRTUTH [sic],

Roy testified that receiving these papers, in light of his prior difficult relationship with Saidi, caused him great alarm.

At trial, Saidi testified that although he had lived in the United States for thirty-nine years, English was not his native language and that in Palestine, his native land, the word “kill” was synonymous with “defeat.” He testified that he never intended to harm Roy or his former wife, and only intended to “defeat” the trial court’s order distributing the Saidis’ marital assets. The jury found Saidi guilty as charged, and he was placed on probation, a special condition of which prohibited him from pro se representation in any civil or family law action.

While Saidi acknowledges that the Second District Court of Appeal concluded in Smith v. State, 532 So.2d 50 (Fla. 2d DCA 1988), that section 836.10, Florida Statutes, is constitutional, he argues that the court failed to consider that the statute lacks a specific intent element. Saidi contends that because the statute does not require the specific intent to cause harm, innocent written speech can be criminalized. He also argues that the State should have been required to prove that he had the ability to carry out the threat.

At the outset, we note our agreement with Smith, and conclude that section 836.10 is not vague. We also disagree with Saidi’s contention that section 836.10 is constitutionally infirm because it is over-broad. Section 836.10 prohibits sending a written communication threatening to kill or injure the recipient, or any member of his/her family. Smith. Threats to kill or do bodily harm are not constitutionally protected and are legislatively proscriba-ble. United States v. Hutson, 843 F.2d 1232 (9th Cir.1988); United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir.1975). Because threats to injure or kill are not constitutionally protected, Saidi’s First Amendment rights are not compromised by laws prohibiting such threats. See Reilly v. State, Dep’t of Corrs., 847 F.Supp. 951, 958 (M.D.Fla.1994); see also State v. Brown, 50 Wash.App. 405, 748 P.2d 276 (1988) (threat to cause bodily injury or physical damage to the property of another is not protected speech); see also United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir.1999) (“The fact that a specific threat accompanies pure political speech does not shield a defendant from culpability.”); United States v. Bellrichard, 994 F.2d 1318, 1322 (8th Cir.1993) (“[A] person may not escape prosecution for uttering threatening language merely by combining the threatening language with issues of public concern.”).

Next, Saidi asserts that the trial court gave jury instructions that were confusing and misleading. Specifically, Saidi argues that the jury was misled as to the State’s burden of proof because the trial court refused to instruct the jury that it must find the specific intent to cause harm as a necessary element of the charged offense.

While conceding that the issue was not raised at trial, Saidi argues that a jury instruction that is confusing or misleading regarding an element of the crime charged is reviewable as fundamental error. See Hubbard v. State, 751 So.2d 771, 772 (Fla. 5th DCA 2000) (holding that the issuance of “ ‘an incomplete and inaccurate instruction on the law is fundamental error where the error relates to the elements of the criminal offense’ ”) (quoting Ward v. State, 655 So.2d 1290, 1292 (Fla. 5th DCA 1995)); see also Johnson v. State, 632 So.2d 1062 (Fla. 5th DCA 1994). While we agree with that general statement of the law, it has no application here.

Section 836.10, Florida Statutes is violated if: (1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family. State v. Wise, 664 So.2d 1028, 1030 (Fla. 2d DCA 1995); Smith. Similar to extortion, this crime does not require the actual intent to do harm or the ability to carry out the threat. See § 836.10, Fla. Stat.; Dudley v. State, 634 So.2d 1093, 1094 (Fla. 2d DCA 1994); Alonso v. State, 447 So.2d 1029, 1030 (Fla. 4th DCA 1984). Consequently, we conclude the trial court properly instructed the jury as to the elements of the charged crime.

Finally, Saidi submits that the trial court erred by prohibiting him from filing any pro se pleadings in any civil or family litigation as a condition of probation. Sai-di argues that this condition deprives him of access to the courts and the right to petition the courts for a writ of habeas corpus. The State responds by arguing that any error regarding the special condition has been waived as Saidi did not object below or file a motion to correct sentence, and that the error is not fundamental. Further, the State contends that the special condition was properly imposed given the evidence presented at trial and at sentencing.

As a general rule, there must be a reasonable nexus between any special condition of probation and the crime committed by the offender. Biller v. State, 618 So.2d 734 (Fla.1993). When a question is raised concerning the relevancy of a special condition or probation, the record must support the imposition of the condition. McCarthren v. State, 635 So.2d 1005, 1006 (Fla. 5th DCA 1994). In the absence of a contemporaneous objection, a defendant may appeal a condition of probation only if it is so egregious as to be the equivalent of fundamental error. Larson v. State, 572 So.2d 1368, 1371 (Fla.1991). Here, we conclude that the prohibition against pro se filings as a special condition of probation does not constitute error, fundamental or otherwise.

Probation is a matter of grace and is subject to exercise of the trial court’s discretion. McCarthren, 635 So.2d at 1006; Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982) (en banc). “[E]ven constitutional rights can be abridged by conditions of probation if the conditions ‘are reasonably related to the probationer’s past or future criminality or to the rehabilitative purposes of probation.’ ” Lindsay v. State, 606 So.2d 652, 657 (Fla. 4th DCA 1992) (quoting Wiggins v. State, 386 So.2d 46, 47 (Fla. 4th DCA 1980)). The fact that a condition of probation burdens constitutional rights is not alone a basis to set it aside. Id.

In Larson, the Florida Supreme Court explained that:

As a general rule, a condition of probation that burdens the exercise of a legal or constitutional right should be given special scrutiny. However, a defendant cannot successfully challenge every aspect of a prior order of probation simply because it infringes on some such rights. Most sentences and orders of probation have that effect, if only because they restrict liberty to some extent.

572 So.2d at 1371.

Admittedly, the condition of probation banning pro se filings burdens Sai-di’s constitutional right to access to the courts. See Art. I, § 21, Fla. Const. However, given the facts in this case, the record supports the imposition of this condition of probation considering Saidi’s crime and past conduct. The condition of probation does not, however, infringe upon Saidi’s right to petition for habeas corpus relief or from seeking posteonviction relief. The pro se filing prohibition is confined to civil and family matters. A petition for a writ of habeas corpus, while technically civil, is generally used to challenge the legality of confinement pursuant to a criminal judgment and sentence, and such a writ would not be precluded by this condition. See State ex rel. Butterworth v. Kenny, 714 So.2d 404, 409-10 (Fla.1998) (recognizing that habeas corpus proceedings, while technically classified as civil actions, are actually quasi-criminal in nature).

AFFIRMED.

SHARP, W. and PETERSON, JJ., concur.

      . Other courts have found similar statutes constitutional. See, e.g., United States v. Polson, 154 F.Supp.2d 1230 (S.D.Ohio 2001) (holding that threatening communications fall outside the province of protected political speech as represented by First Amendment; reasonable jury could conclude that the reasonable recipient of threatening letter would not interpret it as being of a political nature, but rather as a true threat of violence, letter was not protected speech under First Amendment and could be basis for prosecution under statute proscribing mailing threatening communications; letter never mentioned sender’s political views but did make direct or indirect threats of use of force or violence); Yates v. Commonwealth, 753 S.W.2d 874 (Ky.App.Ct.1988) (statute prohibiting communications made with intent to harass, annoy, or alarm by telephone, or any form of written communication, which cause annoyance or alarm and served no purpose of legitimate communication, was not unconstitutionally vague or overbroad; statute did not infringe right to free speech, but rather, protected individual's right to be left alone, and provided reasonable opportunity to know what actions were prohibited); State v. Ross, 269 Mont. 347, 889 P.2d 161 (1995) (intimidation statute not facially overbroad on First Amendment free speech grounds as speech threatening to "inflict physical harm” is rarely, if ever, protected); but see State v. Lee, 82 Wash.App. 298, 917 P.2d 159 (1996) (claim that stalking statute potentially infringed on range of traditional First Amendment activities, such as political protesting or news gathering did not render statute unconstitutionally over-broad, as statute required that person followed experience fear or intimidation, and, therefore, statute’s effect on First Amendment activities was not substantial); People v. Deem, 30 Cal.App.3d Supp. 1, 106 Cal.Rptr. 311 (1972) (statute making it unlawful to knowingly and willfully send or deliver to another any letter or writing threatening to accuse one of a crime or to expose or publish any of his failings or infirmities but not requiring that the threat be wrongful or unjustified or that there be bad faith or intent to injure violated constitutional guarantee of right to free speech and was invalid).

      . This analysis is consistent with decisions of other courts reviewing similar statutes. See, e.g., Illinois v. Peterson, 306 Ill.App.3d 1091, 240 Ill.Dec. 164, 715 N.E.2d 1221 (1999) (although intimidation is a special intent crime, intent to harm another is to element thereof: intent that must be proved is not intent to carry out threat, but intent to cause another to perform or omit performance of any act); Ross (in order for there to be "true threat” within meaning of intimidation statute, it is not necessary that defendant intend to carry out threat, but, rather, it is only necessary that threat have been made for purpose to cause another to perform or omit performance of act; what matter is only that threat is communicated in way that victim reasonably fears that threat will be carried out).


text:
    ESTATE OF Walter Edward ESTERLINE, et al., Petitioner, v. AVANTE AT LEESBURG, INC., et al., Respondents.
    No. 5D03-176.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2003.

      Susan B. Morrison of Wilkes & McHugh, P.A., Tampa, for Petitioner.
    Scott A. Mager, Andrew R. McCumber and Elaine J. LaFlamme of Quintairos, McCumber, Prieto, Wood, Boyer & Mager, Fort Lauderdale, for Respondents, Avante At Leesburg, Inc. and AG Holdings, Inc.
    Alex Finch of Goldsmith, Grout & Lewis, P.A., Winter Park, Amicus Curiae for Florida Health Care Association, Inc.
   ORFINGER, J.

Mariann Lindsay, Personal Representative of the Estate of Walter Edward Es-terline, seeks certiorari review of an order denying her motion to amend her complaint to add a claim for punitive damages. We deny the petition.

Lindsay filed suit against Avante At Leesburg, Inc. and AG Holdings, Inc. (collectively “Avante”), the operators of a nursing home where Walter Esterline resided, asserting claims for (1) the alleged deprivations or infringements of Ester-line’s rights under Chapter 400, Florida Statutes, (2) negligence, and (3) wrongful death. Each claim alleged that Avante failed to provide adequate and appropriate health care to Esterline while he was a resident. After significant discovery, Lindsay filed a motion, later amended, pursuant to section 768.72, Florida Statutes (1999), seeking to assert a claim for punitive damages against Avante. The trial court denied Lindsay’s motion concluding that no evidentiary basis existed to support a claim for punitive damages.

We deny the petition because Lindsay has an adequate remedy on appeal at the conclusion of the case. We conclude that certiorari review is not available to a plaintiff where, as here, the trial court has denied the plaintiffs claim for punitive damages, provided that the court has complied with the procedural requirements of section 768.72. As the court said in Sloan v. Toler, 778 So.2d 1094 (Fla. 3d DCA 2001):

[Section 768.72] creates for defendants “a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995). If the defendant is wrongfully subjected to discovery of otherwise confidential financial information, the cat is out of the bag and appeal at the conclusion of the case will not provide an adequate remedy. Id. at 520 (“a plenary appeal cannot restore a defendant’s statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant.”). A plaintiff, by contrast, does not have a corresponding right to certiorari review in this context. If the trial court erroneously strikes the plaintiffs punitive damages claim on account of section 768.72, the trial court’s ruling does not result in the disclosure of any protected confidential information. If the trial court erroneously prohibits a punitive damages claim, the plaintiff may obtain relief by way of appeal at the conclusion of the case.

Id. at 1095 (citation omitted).

We also conclude that the trial court’s order does not depart from the essential requirements of law. The trial court followed the procedural requirements of section 768.72. That statute expressly permits the court to determine if a plaintiff has made a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery” of punitive damages. § 768.72(1), Fla. Stat. (1999). That is precisely what the trial court did here. See Munroe Reg’l Health Sys., Inc. v. Estate of Gonzales, 795 So.2d 1133 (Fla. 5th DCA 2001).

For the stated reasons, certiorari is denied.

CERTIORARI DENIED.

MONACO and TORPY, JJ., concur.


author: MONACO, J.

text:
    DEPARTMENT OF REVENUE, etc., et al., Appellant(s), v. Tracy OWENS and Cassandra Owens, Appellee(s).
    No. 5D02-629.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant(s).
    Daniel D. Mazar of Mead & Mazar, Winter Park, for Appellee(s).
   MONACO, J.

The Florida Department of Revenue (“DOR”) appeals from the final summary judgment entered below in favor of the appellees, Tracy and Cassandra Owens. The trial court in its judgment found that the Owens possessed a joint account by the entireties and that DOR was, therefore, precluded from maintaining liens against the account on behalf of three women who were trying to collect child support arrearages from Tracy Owens.

Generally, if there is the slightest doubt concerning an issue of material fact, a summary judgment should not be entered. Wal-Mart Stores, Inc. v. Tracz, 799 So.2d 413 (Fla. 5th DCA 2001); Besco U.S.A. Int’l Corp. v. Home Sav. of America FSB., 675 So.2d 687 (Fla. 5th DCA 1996). A party moving for summary judgment has the burden of conclusively demonstrating the nonexistence of any genuine issue of material fact. See Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966); City of Cocoa v. Leffler, 762 So.2d 1052 (Fla. 5th DCA 2000). The non-moving party is entitled to all reasonable inferences that may be drawn from the facts before the court. See Richardson v. Wal-Mark Contracting Group, LLC, L.C., 814 So.2d 534 (Fla. 2d DCA 2002). Because there are genuine issues of material fact in the present case, we reverse the summary judgment and remand for further proceedings.

Paragraph 6 of the complaint states that both Tracy and Cassandra Owens contributed funds to the account in question, and paragraph 9 alleges that all funds in that account were exempt from lien because they were joint funds owned by the Owens by the entireties. DOR’s answer specifically denies paragraphs 6 and 9, and prior to the hearing on the motion for summary judgment DOR filed documentary evidence that is directly contradictory to the factual position of Tracy Owens. See Wiggins v. Portmay Corp., 430 So.2d 541 (Fla. 1st DCA 1983). Under the circumstances, therefore, the granting of a summary judgment in favor of Mr. and Mrs. Owens was error.

REVERSED and REMANDED.

THOMPSON, C.J., and ORFINGER, J., concur.


text:
    Robert R. KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3680.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2003.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Petitioner.
    Robert R. Kelly, Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   ON MOTION FOR REHEARING

SHARP, W., J.

Robert Kelly has filed a motion for rehearing regarding this court’s denial of his petition for a belated appeal. We denied his petition for a belated appeal, filed by the public defender, which sought to review the trial court’s denial of his collateral attack on his criminal convictions and sentences for various crimes we had affirmed on appeal. The basis for our denial was the fact that he relied on the public defender to file the notice of appeal, and it was not clear the public defender represented him in this matter. In collateral attacks on criminal convictions pursuant to 8.800 and 3.850 motions, indigent defendants are not entitled to representation by the public defender, as of right. See Elam v. State, 689 So.2d 1232 (Fla. 5th DCA 1997).

However in this motion for rehearing, Kelly points out that the public defender corresponded with him and offered to file a notice of appeal to this court, in this proceeding. The public defender has admitted fault in not properly calendaring the time the notice was due. Under these circumstances, we agree Kelly is entitled to a belated appeal.

Accordingly, we withdraw our prior opinion and grant Kelly’s motion for a belated appeal in this cause. If the public defender is going to represent Kelly in this matter, he or she shall forthwith file a notice of appearance.

Rehearing GRANTED; Petition for Belated Appeal GRANTED.

MONACO and PALMER, JJ., concur.

      . See Kelly v. State, 795 So.2d 135 (Fla. 5th DCA 2001).


text:
    Saul SILBER, Appellant/Cross-appellee, v. Esther NEGRIN, f/k/a, Esther Negrin Silber, Appellee/Cross-appellant.
    No. 1D02-0300.
    District Court of Appeal of Florida, First District.
    June 2, 2003.

      Gary S. Edinger, Gainesville, for appellant/cross-appellee.
    Michael W. Jones, Gainesville; Jack M. Ross, Gainesville; and Rachel N. Silber, Miami, for appellee/cross-appellant.
   ORDER ON REHEARING AND IMPOSING SANCTIONS

PER CURIAM.

Previously, this court issued its published order imposing sanctions against attorney Michael W. Jones for his failure to comply with the Florida Rules of Appellate Procedure and the orders of this court. Mr. Jones moved for rehearing, asserting that he had never received this court’s order granting an extension of time to respond to the show cause order, and thus he was unaware that his response was due. In the interest of fairness, we granted rehearing and withdrew the published order, and afforded Mr. Jones a time certain in which to respond. The time for filing a response has again passed with nothing having been filed by Mr. Jones. Accordingly, we re-issue the order imposing sanctions. No motion for rehearing will be entertained by the court.

The marriage of the parties was dissolved and this court affirmed the final judgment in part and reversed in part. Silber v. Negrin, 745 So.2d 523 (Fla. 1st DCA 1999). Former husband appeals the amended judgment that was entered on remand, and former wife cross-appeals.

After the initial brief was filed, the ap-pellee/cross-appellant, represented by Michael W. Jones, moved for and received an extension of time to serve the answer brief. When the brief was not timely filed, appellant moved to strike the cross-appeal and for submission of the case to a panel of judges without an answer brief. A show cause order issued on the motion, there was no response, and the motion was granted. Subsequently, attorney Jack M. Ross appeared on behalf of appellee/cross-appellant and moved for reconsideration of the order. The motion for reconsideration was granted and the cross-appeal was reinstated. An answer brief has been filed by Mr. Ross.

In the course of the above-described proceedings, Michael W. Jones was directed to show cause why sanctions should not be imposed against him for his failure to comply with the Florida Rules of Appellate Procedure and the orders of this court. Fla. R App. P. 9.410. Despite having been granted an extension of time, no response to the show cause order on sanctions has been filed by Mr. Jones. Accordingly, this court finds it appropriate to impose the following sanctions.

First, this order shall be published in the Southern Reporter and serve as a public reprimand of Michael W. Jones concerning his representation of appel-lee/cross-appellant in this proceeding.

Second, appellant is hereby awarded an attorney’s fee with regard to the motion practice described in this opinion. Such fees shall be paid by Mr. Jones and are not chargeable to his client. If appellant and Mr. Jones are unable to agree to the amount of the fee, concurrent jurisdiction is relinquished to the Circuit Court for Alachua County for determination of an appropriate award.

Third, a copy of this order will be provided to the Florida Bar for a determination as to whether disciplinary proceedings are appropriate in these circumstances.

IT IS SO ORDERED.

WEBSTER, DAVIS and VAN NORTWICK, JJ., concur.


author: /s/ Jeannette Theriot Knoll

text:
    In re: Walter J. CRITTENDEN
    No. 98-B-0970.
    Supreme Court of Louisiana.
    July 2, 1998.
   ORDER

Considering the Recommendation of the Disciplinary Board to Revoke Probation,

IT IS ORDERED that Walter J. Crit-tenden’s probation be revoked, and that he be placed on immediate interim suspension pursuant to Supreme Court Rule XIX, § 19B, pending further orders of this court.

IT IS FURTHER ORDERED that the matter be remanded to the Office of Disciplinary Counsel to conduct further investigation of the unauthorized practice of law allegations and file formal charges as appropriate. The disciplinary board is ordered to consolidate any charges in this matter (after hearing by the hearing committee) with the probation violations in the instant matter, and to render a single recommendation to this court.

Revocation ordered.

JOHNSON, J. not on panel. Rule IV, Part 2, § 3.

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana


author: hPER CURIAM.

text:
    Heidi Klemper LAYTON v. Daryl NEWELL.
    No. 2003-CC-0229.
    Supreme Court of Louisiana.
    April 4, 2003.
    Rehearing Denied May 30, 2003.
   hPER CURIAM.

Heidi Layton and Daryl Newell married in Ohio and resided in that state. Of their marriage, one child, D.S.N., was born in 1995. The couple divorced in 1996. By order of the Ohio court, Ms. Layton was granted temporary custody of D.S.N.

In 1998, Ms. Layton and D.S.N. moved to Louisiana without obtaining approval of the Ohio court. In 2001, Ms. Layton filed the instant “Rule for Custody” in the 22nd Judicial District Court for the Parish of St. Tammany, State of Louisiana. In her petition, she asserted Louisiana was D.S.N.’s home state for purposes of La. R.S. 13:1702, as he had been in this state for more than six months.

li>Mr. Newell, who remains a resident of the State of Ohio, filed a declinatory exception of lack of subject matter jurisdiction and personal jurisdiction. Citing La. R.S. 13:1705, he argued that although D.S.N. has lived in Louisiana for more than six months, the Ohio court, having rendered the original custody order, retained jurisdiction over the ongoing dispute. Therefore, he contended Louisiana should decline jurisdiction over the case.

The district court denied Mr. Newell’s exception of lack of subject matter jurisdiction. Mr. Newell applied for supervisory review of this ruling. The court of appeal initially granted the writ and reversed the judgment of the trial court. Ms. Layton filed an application for rehearing. The court of appeal granted rehearing and denied the writ. Mr. Newell then filed the instant writ application in this court.

Louisiana has become the home state of the child under La. R.S. 13:1702(A)(2), as the child has resided in this state for more than six months. However, La. R.S. 13:1705(A) makes it clear that Louisiana should not exercise jurisdiction where there are pending proceedings in another state which also has jurisdiction:

A. A court of this state shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Part, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

In the instant matter, it is undisputed that custody proceedings have been pending in Ohio since 1996, and that Ohio has recently rendered judgments in this | ¡¡matter. The Ohio court has not agreed to stay its proceedings in favor of the Louisiana proceedings, and in fact has made it clear it wishes to retain jurisdiction over the matter. Under these circumstances, the Louisiana court should have declined to exercise jurisdiction over this case.

Accordingly, the writ is granted. The district court is instructed to decline to exercise its jurisdiction over the custody matter. The case is remanded to the trial court to rule on Mr. Newell’s “Motion and Order for Filing and Enforcement of Foreign Custody Decree,” if it has not already done so.

      .La. R.S. 13:1702 provides:
      A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
      (2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships....

      . Ms. Layton argues that Mr. Newell’s writ application was untimely pursuant to the fourteen day period for filing writ applications arising from certain cases involving children set forth in Supreme Court Rule XXXIV, Part III, § 1. Despite the use of the word "shall," the court intended Supreme Court Rule XXXIV, Part III, § 1 as more of an aspirational rule than a strict rule of timeliness. Therefore, Mr. Newell’s application was timely.

      . On October 17, 2002, the Ohio court rendered judgment granting temporary legal custody of D.S.N. to Mr. Newell. The court also indicated that Ms. Layton had been held in contempt of court and a warrant for her arrest had been issued.

      . By judgment dated October 17, 2002, the Ohio court stated:
      This case remains within the jurisdiction of the Stark County Family Court as this case has had proceedings initiated and still commencing since 1996. The Stark County Family Court will continue to have jurisdiction until further Orders of the Court.


text:
    Ginger BAILEY, et al. v. Dr. Gregory KHOURY, et al.
    No. 2003-CC-0165.
    Supreme Court of Louisiana.
    April 4, 2003.
   hPER CURIAM.

Plaintiff seeks review of three separate judgments of the court of appeal: (1) a judgment granting consolidated writ applications filed by Dr. Gregory Khoury and Dr. Robert Ancira; (2) a judgment granting a writ application filed by Walgreen Louisiana Co.; and (3) a judgment granting a writ application filed by Eckerd Corporation. Plaintiff sought rehearing from the judgment in favor of Dr. Khoury and Dr. Ancira. Upon denial of that rehearing by the court of appeal, she filed a timely application in this court. Plaintiff also sought rehearing of the judgment in favor of Walgreen; that application remains pending in the court of appeal. Plaintiff did not apply for rehearing from the judgment in favor of Eckerd nor did she apply to this court within thirty days of the court of appeal’s original judgment.

The court of appeal’s judgment in favor of Dr. Khoury and Dr. Ancira reversed the judgment of the trial court. Because one judge of the three-judge panel dissented, the court of appeal erred in failing to direct that the case be reargued before a five-judge panel as required by La. Const. Art. V, § 8(B). Accordingly, the judgment of the court of appeal is vacated and set aside, and the case remanded to the court of appeal for reargument before a five-judge panel.

| ¡/The court of appeal’s judgment in favor of Walgreen likewise failed to comply with La. Const. Art. V, § 8(B). Because plaintiffs application for rehearing is pending in the court of appeal, her application to this court is technically premature. However, in the interest of judicial economy, we will exercise our supervisory authority and vacate and set aside the judgment of the court of appeal. The matter is remanded to the court of appeal for rear-gument before a five-judge panel, if it has not done so already.

Plaintiffs application from the judgment in favor of Eckerd was not timely filed in this court. The judgment of the court of appeal is now final and definitive. La. Code Civ. P. art. 2166(A). Accordingly, with respect to this judgment, plaintiffs application is not considered.

      . La. Const. Art. V, § 8(B) provides:
      A majority of the judges sitting in a case must concur to render judgment. However, in civil matters only, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.


text:
    In re Shawn LINDSAY.
    No. 2002-OB-1701.
    Supreme Court of Louisiana.
    April 4, 2003.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Shawn Lindsay, successfully passed the essay portion of the February 2002 Louisiana bar examination. The Committee on Bar Admissions (“Committee”) subsequently refused to certify petitioner’s good moral character because he failed to provide an accurate response to a question on the bar exam application. Petitioner then applied to this court, seeking admission to the practice of law. In response to that application, we appointed a commissioner to take evidence concerning petitioner’s character and fitness. In re: Lindsay, 02-1701 (La.6/27/02). After hearing evidence in the case, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. In his report, the commissioner found that petitioner proved by clear and convincing evidence “that he has the proper character and fitness to be a member of the Bar.” The commissioner specifically observed that petitioner admitted his mistake, regretted the incident, and has learned from it.

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.

      . The question inquires about previous arrests. Petitioner gave a negative response to the question, when in fact he had been arrested in Georgia in 1995 on a misdemeanor charge that was later dismissed.


author: 11 TRAYLOR, Justice.

text:
    LOUISIANA HORSEMEN’S BENEVOLENT AND PROTECTIVE ASSOCIATION 1993, INC. v. FAIR GROUNDS CORPORATION, First Statewide Racing Company, Inc., d/b/a Evangeline Downs, Louisiana Downs, Inc., Delta Downs Racing Association, Inc. and Louisiana Department of Public Safety and Corrections.
    No. 2002-C-1928.
    Supreme Court of Louisiana.
    April 9, 2003.
    Rehearing Denied June 6, 2003.

      C. James Gelpi, New Orleans, Stephen L. Lee, Harry T. Lemmon, Steven C. Thompson, for Applicant.
    Juston M. O’Brien, Michael H. Rubin, McGlinchey Stafford; Charles W. Salley, Lunn, Irion, Johnson, Salley & Carlisle; James P. Dore, Amy Louise deGeneres Berret, Kean, Miller, Hawthorne, D’Ar-mond, McCowan & Jarmen; Henry C. Per-ret, Jr., John W. Kolwe, Boyd A. Bryan, Perret, Doise; Richard D. Moreno, Wright & Moreno; Richard P. Ieyoub, Attorney General, L. Rand Dennis, Asst. Attorney General, David B. Garraway, Crews R. LeBlanc, Alan J. Berteau, Baton Rouge, for Respondent.
   11 TRAYLOR, Justice.

We granted the writ application to determine whether the court of appeal erred in reversing the trial court’s grant of partial summary judgment in favor of the plaintiff. For the reasons which follow, we reverse the court of appeal, and reinstate the judgment of the trial court.

FACTS and PROCEDURAL HISTORY

In 1991, the legislature approved the placing of video poker devices at horse racing tracks and off-track betting facilities by enacting the Video Draw Poker Devices Control Law, Louisiana Revised Statutes 27:301-24. In 1994, the Louisiana Horsemen’s Benevolent and Protective Association 1993, Inc. (the Association), an authorized representative of the owners, trainers, and breeders of racehorses on any matter of interest and concern to them, filed a petition for damages against the Fair Grounds Corporation; First Statewide Racing Company, Inc., d/b/a as Evangeline Downs, Inc.; Louisiana Downs, Inc.; and Delta Downs Racing Association, Inc. (the [ {.Tracks). The petition alleged that the Tracks were incorrectly calculating and distributing income to the Association from the video poker machines located on the Tracks’ premises, contrary to the provisions of La. R.S. 27:318(A)(1).

The Tracks subsequently filed motions for summary judgment, arguing that the deductions to the amounts distributed to the Association were authorized by the video gaming statutes and regulations promulgated by the Video Gaming Division of the Gaming Enforcement Division of the State Police, a component of the Louisiana Department of Public Safety and Corrections (the Division), which is also named as a defendant in the matter. The Association filed a cross motion for summary judgment on the issue of liability only, arguing that the law specified only three deductions to the payable revenue and that deductions for franchise and contractual leasing fees were not authorized.

The trial court granted the Association’s motion for partial summary judgment and denied the Tracks’ motions for summary judgment, designating the judgment as final pursuant to La. C.C.P. art. 1915(B)(1). The court of appeal reversed.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Ross v. Conoco, Inc., 2002-0299 (La.10/15/02); 828 So.2d 546. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [the] mover is entitled to I.-¡judgment as a matter of law.” La. C.C.P. art. 966(B). This decision does not turn on a matter of material fact, but, instead, depends upon the meaning given to the wording of a statute.

“[T]he task of statutory construction begins with an examination of the language of the statute itself ... When the law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.” State v. Barbier, 98-2923 (La.9/8/99); 743 So.2d 1236, 1238.

The statute at issue here, La. R.S. 27:318(A)(1), reads:

A. (1) When the owner of the licensed establishment is not the licensed device owner of the devices placed in or on his premises, one-half of the monthly net device revenues received by the establishment owner, after deduction of one-twelfth of the estimated total of annual establishment fees plus one hundred dollars per device per month and any fee or tax levied by the local governing authority, shall be used to supplement purses for horsemen as provided in subsection B of this Section and shall be added to those presently available under R.S. 4:183. Such monies shall be made available for use as purses monthly, prior to the twentieth day of the month following the month in which they are earned.

The term “net device revenue” used in the statute is defined by the legislature as “the gross revenue of a device less the value of prizes paid as shown on the meters of the device.” La. R.S. 27:301(B)(10). The phrase “received by the establishment owner,” however, is not defined, and is the point of contention here.

The defendants argue that because the money inserted into the video poker devices is removed by the device owners and not returned to the tracks until after the franchise fee and contractual fees are taken out, the “net device revenues received by” the tracks does not include those fees. The court of appeal agreed, observing that although the “rules and regulations” promulgated by the Division for the counting and |collecting of net device revenues were not binding, they were persuasive, and that those rules and regulations required the two additional deductions to be made before calculating the amount due the Association. In determining that the Division had correctly interpreted the statute, the court of appeal also noted that the usual and accepted meaning of “received” is to “have possession of the object received.” Louisiana Horsemen’s Benevolent and Protective Assoc.1993, Inc. v. Fair Grounds Corp., 01-1002, slip op. at 8, 826 So.2d 1202 (La.App. 1st Cir.6/21/02).

When two or more interpretations may be given a law, though, the interpretation which is reasonable and practical is preferred to that which makes part of the law ridiculous or meaningless. Langley v. Petro Star Corp. of La., 01-0198 (La.6/29/01); 792 So.2d 721. Further, laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13.

The paragraph following the paragraph at issue, La. R.S. 27:318(2), controls the division of funds when the establishment owner is also the owner of a video poker device. Paragraph 2 reads:

(2) When the owner of the licensed establishment is the licensed device owner of the devices placed in or on his premises, one-half of the monthly net device revenues received by the establishment owner in excess of five hundred dollars shall be used to supplement purses for horsemen as provided in Subsection B of this Section and shall be added to those presently available under R.S. 4:183. Such monies shall be made available for use as purses monthly, prior to the twentieth day of the month following the month in which they are earned.

Paragraph 2 clearly states, without any ambiguity, that the only allowance granted to establishments which own their own video poker devices is a single five-hundred dollar deduction. One half of the amount remaining after the five-hundred dollar | ¡-Reduction is taken goes to the Association for purse supplements. If, therefore, an establishment owner is also the device owner, the establishment owes very nearly fifty percent of net device revenues to the Association.

Because the two paragraphs were enacted as part of the same statute and at the same time, it is logical to assume that the legislature intended that the amount of a purse supplement would be more or less the same whether the Tracks owned the video poker devices or rented them. The interpretation given Paragraph 1 by the court of appeal, though, greatly reduces the amount of the purse supplement from near fifty percent of net device revenues to an amount as low as five percent of net device revenues.

Another accepted meaning of “received,” but one which does not lead to an absurd result, is “to take in or act as a receptacle for.” Webster’s Third New International Dictionary, 1979. This definition, when used in both paragraphs of La. R.S. 27:318(A), obtains the consistent result that the monies earned for purse supplements is approximately the same whether the video poker devices are owned by the Tracks or rented from third parties. This definition also ensures that the twenty-two and one-half percent franchise fee, which by law is apportioned to the video device owner, is actually paid by the device owner rather than being shifted to the Association and Tracks for payment.

We find that prior to the calculation of the supplemental purse amount, La. R.S. 27:318(A)(1) specifies that only one-twelfth of the estimated establishment fee, one hundred dollars per video poker device, and any local fees or taxes, may be deducted from the net device revenue.

| J)ECREE

For the foregoing reasons, the ruling of the court of appeal is reversed, the judgment of the trial court is reinstated, and the matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

■KIMBALL and VICTORY, JJ„ concur in the result.

      . Acts 1991, No. 1062 originally designated the law as La. R.S. 33:4861 et seq. Acts 1996, 1st Ex.Sess., No. 7 provided for the current designation.

      . The court of appeal dismissed the appeal to that court of Delta Downs Racing Association Capital, Inc., on August 17, 2001. Delta Downs is not, therefore, before this court. In addition, on March 18, 2003, this court approved the dismissal with prejudice of the plaintiffs claims against Old Evangeline Downs, L.L.C., successor by merger to First Statewide Racing Co., Inc., d/b/a Evangeline Downs, and the First Statewide Racing Co., Inc., d/b/a Evangeline Downs.

      . None of the tracks own the video poker devices.

      . The Division is authorized to promulgate such rules and regulations by various statutes contained in the Video Draw Poker Devices Control Law.

      . We note that despite the plain language of the statute, the Division has incorrectly allowed the 22)4 % franchise fee and $500.00 per video poker device to be deducted from net device revenue prior to calculation of the amount of the purse supplement.

      . La. R.S. 2Y:311 (D)(2).


text:
    In re Edselle Keith CUNNINGHAM, Jr.
    No. 2002-OB-2666.
    Supreme Court of Louisiana.
    April 9, 2003.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Ed-selle Keith Cunningham, Jr., is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.


text:
    In re Hector R. LOPEZ.
    No. 2002-OB-1821.
    Supreme Court of Louisiana.
    April 9, 2003.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

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

CONDITIONAL ADMISSION GRANTED.


text:
    In re Carmella A. WILLIAMS-PARKER.
    No. 2003-OB-1024.
    Supreme Court of Louisiana.
    April 10, 2003.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

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

CONDITIONAL ADMISSION GRANTED.


text:
    In re Mark S. WEGENER.
    No. 2001-OB-2088.
    Supreme Court of Louisiana.
    April 10, 2003.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

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

CONDITIONAL ADMISSION GRANTED.


text:
    In re Logan L. NICHOLS.
    No. 2003-B-0918.
    Supreme Court of Louisiana.
    April 16, 2003.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Logan L. Nichols, and the Office of Disciplinary Counsel,

IT IS ORDERED that Logan L. Nichols, Louisiana Bar Roll number 9993, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

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

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Charles A. JONES, III.
    No. 2003-B-0164.
    Supreme Court of Louisiana.
    April 21, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel seeks this court’s review of a recommendation of the disciplinary board that the formal charges against respondent, Charles A. Jones, III, be dismissed. Having reviewed the record and the briefs of the parties, we find the disciplinary board correctly dismissed the formal charges, and the board’s disposition is affirmed.


author: |,PER CURIAM.

text:
    STATE of Louisiana v. Clifford OCHELTREE.
    No. 2002-K-2531.
    Supreme Court of Louisiana.
    April 21, 2003.
   |,PER CURIAM.

Granted in part; denied in part. The state did not seek review in this Court of the Fourth Circuit’s order of January 18, 2002, directing the trial court to grant the defendant’s motion to quash and confining prosecution of the case to the dates alleged in the original bill of information. Acting pursuant to that uncontested order, the trial court quashed the bill of information and ordered the defendant discharged from his bail obligation on January 22, 2002. The new bill of information filed by the state on March 12, 2002, charging the defendant with the same offense, “related back” to the first prosecution, not as a matter of this Court’s decision in State v. Case, 357 So.2d 498 (La.1978), which permits amendment of an extant bill of information, but as a matter of La.C.Cr.P. art. 576. That statute gives the state six months from the granting of a motion to quash a timely-filed indictment “for any defect, irregularity, or deficiency,” to institute a new prosecution “for the same offense or for a lesser offense based on the same facts.... ” The state’s second bill of information charging the defendant with the same offense was therefore timely filed on March 12, 2002, less than six months after |gthe quashing of the original bill of information, because the original bill had been timely filed within four years of the commission of the offense. La.C.Cr.P. art. 572(2).

The trial court therefore erred in quashing the second bill of information. However, because institution of a new prosecution for the same offense must also as a matter of La.C.Cr.P. art. 576 rest on the “same facts,” the state may not enlarge the time frame alleged in the original bill of information for purposes of proving additional acts committed by the defendant in support of the single count of theft charged against him. The state is therefore entitled to amend its bill of information to conform the allegations to those of the original bill of information, ie., that the defendant committed theft of currency valued at more than $500 between August 19, 1995, and November 20, 1997.


text:
    In re Ronald D. BODENHEIMER.
    No. 2003-B-1076.
    Supreme Court of Louisiana.
    April 23, 2003.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the April 10, 2003 correspondence advising that respondent does not object to the immediate entry of an order of interim suspension,

IT IS ORDERED that Ronald D. Bo-denheimer, Louisiana Bar Roll number 3206, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

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

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Jerald STEWART.
    No. 2002-KK-2602.
    Supreme Court of Louisiana.
    April 25, 2003.
   PER CURIAM.

Writ granted in part, otherwise denied. After performing an in camera inspection of Carlton Thornton’s informant file as ordered by the court of appeal, the district court shall disclose all material exculpatory evidence contained in such a file to the defendant. La.C.Cr.P. art. 718(A); see, e.g., Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995); United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985).

Further, on the showing made, it appears that Thornton’s February 29, 2000 arrest may confer upon the state some leverage over him, potentially affecting his testimony. The district court should thus hold a hearing to determine whether the state could file charges or otherwise exert leverage over Thornton as a result of the arrest. If it can, the defendant is entitled to introduce such information at trial. State v. Vale, 95-1230, p. 4 (La.1/26/96), 666 So.2d 1070, 1072. See also La.C.E. art. 607(D)(1)(“Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.”).

In all other respects, the application is denied.

TRAYLOR and KNOLL, JJ., would deny the writ.


author: I,PER CURIAM.

text:
    Hilda N. GARRISON, et al. v. ST. CHARLES GENERAL HOSPITAL.
    Nos. 2003-CC-0423, 2003-CC-0429, 2003-CC-0488.
    Supreme Court of Louisiana.
    April 25, 2003.
   I,PER CURIAM.

In an earlier disposition in this case, the court of appeal maintained relators’ exception of improper venue. Nothing in the court’s opinion discussed the ultimate disposition of the case in light of the judgment maintaining this exception. Rather, the court of appeal’s judgment simply remanded the matter to the district court “to determine whether the actions against the relators should be dismissed, or whether these actions should be transferred to the courts of proper venue.”

On remand, the district court determined the actions should be transferred rather than dismissed. Relators sought supervisory review in the court of appeal, arguing that under the facts of this case, the law did not permit the district court to transfer the actions. The majority of the court of appeal held that its previous disposition provided that the district court had the authority to transfer or dismiss the case. Therefore, applying the law of the case doctrine, the court declined to revisit this issue. Relators then applied to this court.

Under the law of the case doctrine, appellate courts have held they have discretion to not reconsider a previously-decided issue unless they find the previous decision is based on palpable error or that manifest injustice would occur. See Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585, 589; see also Zatarain v. WDSU Television, 95-2600 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181.

| ¡¿Based on our reading of the court of appeal’s earlier disposition in this case, the only issue resolved by the court was the exception of improper venue. Any discussion relating to the disposition of the case on remand was dicta. Under these circumstances, the court of appeal erred in applying the law of the case doctrine.

Accordingly, the writ is granted. The judgment of the court of appeal is vacated and set aside, and the case remanded to the court of appeal for reconsideration.

JOHNSON, J., recused.

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


text:
    Stephen C. SMITH v. TIDEWATER INC., et al.
    No. 2003-CC-1438.
    Supreme Court of Louisiana.
    May 22, 2003.
   In re Tidewater Inc. et al.; Tidewater Marine L.L.C.; TT Boat Corporation;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 2000-08647; to the Court of Appeal, Fourth Circuit, No. 2003-C-0922.

Stay denied. Writ denied.

TRAYLOR, J., would grant stay and writ.


text:
    John H. KLOTZ v. Laura SCRIBA, et al.
    No. 2003-CC-1458.
    Supreme Court of Louisiana.
    May 23, 2003.
   In re Scriba, Laura et al.; Scriba, William; Continental Insurance Company;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 96-1722; to the Court of Appeal, Fourth Circuit, No. 2003-C-0856.

Stay denied. Writ denied on the showing made.

WEIMER, J., would grant the stay and order an opposition.


text:
    George A. AGUILAR et al. v. Ahmed MANOUCHEHRI, M.D., et al.
    No. 2003-CC-1372.
    Supreme Court of Louisiana.
    May 28, 2003.
   In re Louisiana Patients Compensation Fund; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, Nos. 403-865, 442-366; to the Court of Appeal, Fifth Circuit, No. 03-C-357.

Denied.


text:
    STATE of Louisiana v. Bernard B. WILLIAMS.
    No. 2003-KH-1281.
    Supreme Court of Louisiana.
    May 30, 2003.
   In re Williams, Bernard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 3-03-230.

Granted. For the sole purpose of transferring the pleading to the district court for its consideration. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, et al. v. MAR-KAT ENTERPRISES OF NATCHITOCHES, INC.
    No. 2003-CC-1028.
    Supreme Court of Louisiana.
    May 30, 2003.
   In re Louisiana State of et al.; Transportation & Development Dept, of; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 70,423(B); to the Court of Appeal, Third Circuit, No. CW 03-00190.

Denied.