author: SILBERMAN, Judge. CASANUEVA, Judge,

text:
    Antonio DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1767.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Antonio Davis appeals the revocation of his probation for delivery of cocaine and possession of cocaine and the resulting sentence. Because the State failed to meet its burden of proving a willful and substantial violation of condition 13 of Davis’s probation, and because it is unclear whether the trial court would have revoked his probation solely for the violation of condition 27(c), we reverse and remand for the trial court to determine whether to revoke Davis’s probation for the remaining violation.

On October 29, 2002, Davis was convicted of delivery of cocaine and possession of cocaine, and the trial court placed Davis on twenty-four months’ drug offender probation. An affidavit of violation of probation and an amended affidavit were filed on February 5, 2008, and March 18, 2003, respectively. At a hearing on April 7, 2003, the State presented evidence regarding violations of conditions 13 and 27(c) of Davis’s probation.

Condition 13 of the probation order provides as follows:

You shall be required to pay for tests used to determine whether you have any treatable problem with alcohol or any drug. If you have said problem you are to successfully complete any recommended treatment program, including aftercare, as directed by your officer or any treatment center where you are receiving treatment.

A handwritten notation next to the condition adds “w/in 30 days.” It was undisputed at the hearing that Davis complied with the requirement that he be evaluated within thirty days for any treatable alcohol or drug problem. As a result of the evaluation, he was ordered to attend the DACCO Level 1 Drug Education Program. The affidavit alleged that Davis entered into the program on November 25, 2002, and that on January 17, 2003, Davis “was discharged from the program for failing to comply with program rules.”

Condition 27(c) of the probation order requires that Davis perform seventy-five hours of community service “at any approved community site at 5 hours per month.” The affidavit alleged that as of January 29, 2003, Davis “failed to perform community service work, and is 15 hours in arrears.”

At the revocation hearing, Davis’s probation officer testified that on November 1, 2002, he instructed Davis on the conditions of his probation and informed Davis of the need to go to the substance abuse evaluation within thirty days and to complete whatever treatment was recommended. Davis’s probation officer admitted that when he first met with Davis on November 1, 2002, Davis brought him a document reflecting an appointment for physical therapy for the previous day and said that he was attending physical therapy. The probation officer did not specifically discuss the issue with Davis any further, but he testified that he tells his probationers that they should inform him of any limitations with regard to their ability to perform community service. Davis did not inform him of any specific limitations. The probation officer believed that there were community service opportunities available which would not require manual labor.

Keith Carpenter, a continuing care manager for DACCO, testified that the DAC-CO Level 1 Drug Education Program consisted of eight sessions, that Davis had only attended one session, and that Davis had been discharged from the program for failing to attend any other sessions.

Davis’s mother testified that in September or October of 2002, Davis fractured his foot and injured his leg in a car accident. She explained that Davis attended physical therapy for five months on Monday, Wednesday, and Friday mornings and that the physical therapy conflicted with the DAC-CO classes. She testified that Davis tried to go to his DACCO appointments but that his physical therapy would run late and cause him to be late to the DACCO program. At the conclusion of the evidence, the trial court found that Davis had violated conditions 13 and 27(c), revoked his probation, and sentenced him to one year and one day in prison.

To support a revocation of probation, the State must show by a preponderance of the evidence that the defendant committed a willful and substantial violation of probation. Rowan v. State, 696 So.2d 842, 843 (Fla. 2d DCA 1997). This court has consistently reversed revocations of probation based on a probationer being terminated from a treatment program when sufficient time remained in the probationary period to complete the program. See Lawson v. State, 845 So.2d 349 (Fla. 2d DCA 2003); Hardy v. State, 845 So.2d 335 (Fla. 2d DCA 2003); Williams v. State, 839 So.2d 926 (Fla. 2d DCA 2003); Dunkin v. State, 780 So.2d 223 (Fla. 2d DCA 2001).

Here, Davis had his initial evaluation and began the program within thirty days. Condition 13 did not require Davis to complete the program within any particular time frame, and the condition did not state how many chances he would have to successfully complete the program. In Lawson, this court stated, “It is also noteworthy that the probation order in this case did not specify that treatment had to be successfully completed on the first try or how many chances the probationer would be given to successfully complete it.” 845 So.2d at 350. Because time remained in Davis’s probationary period to complete the program, his early discharge from the program did not constitute a violation of condition 13. See Williams, 839 So.2d at 927.

With respect to condition 27(c), the evidence reflected that Davis had performed no community service and that he was fifteen hours in arrears of his requirement of five hours per month as of January 29, 2003. In determining whether a violation is willful and substantial and is supported by the greater weight of the evidence, “the trial court must review the evidence to determine whether the defendant has made reasonable efforts to comply with the terms and conditions of his or her probation.” State v. Carter, 835 So.2d 259, 261 (Fla.2002).

Although Davis was receiving physical therapy during the time period at issue, there is no indication that he made any effort to comply with the community service requirement or that he was incapable of complying. In fact, the trial court asked if Davis had completed even one hour of community service, and the probation officer replied that Davis had done no community service at all. Davis never contacted his probation officer to tell him of any limitations he had in performing community service, and he never asked his probation officer for community service that would not require manual labor. Thus, the evidence supports a finding that Davis willfully and substantially violated condition 27(c) of his probation by failing to make any effort to comply with the condition.

The record is unclear as to whether the trial court would have revoked Davis’s probation based on the single violation of condition 27(c). Therefore, we reverse the revocation order and remand for the trial court to determine whether to revoke Davis’s probation for that single violation. See Stevens v. State, 823 So.2d 319, 322 (Fla. 2d DCA 2002) (remanding for the trial court to consider whether it would have revoked probation based only on violation of failing to perform community service in equal monthly installments); Williams v. State, 787 So.2d 180, 182 (Fla. 2d DCA 2001) (remanding for the trial court to consider whether it would have revoked probation on the sole basis of failure to perform community service). If the trial court on remand finds that the one violation warrants revocation, it must enter a written revocation order in conformity with its decision and determine an appropriate sentence to impose. See Williams, 787 So.2d at 182; see also Anthony v. State, 854 So.2d 744, 748 (Fla. 2d DCA 2003).

Reversed and remanded.

YILLANTI, J., Concurs.

CASANUEVA, J., Concurs with opinion.

CASANUEVA, Judge,

Concurring.

I fully concur in the opinion of the court. I write to discuss the need for specificity in certain probation conditions imposed at sentencing.

Here, probation condition 13 required Mr. Davis to attend and complete a drug treatment program, yet the order failed to specify the number of opportunities the trial court would permit him to comply with this condition. Likewise, the sentencing court failed to designate a time period for completion of the task. Thus, the order suffered from the same infirmity as that described in Lawson v. State, 845 So.2d 349, 350 (Fla. 2d DCA 2003), where this court observed that “the probation order in this case did not specify the treatment had to be successfully completed on the first try or how many chances the probationer would be given to successfully complete it.”

The importance of a nonspecific order in the probation violation context was amply illustrated in Dunkin v. State, 780 So.2d 223, 224 (Fla. 2d DCA 2001), where this court held that a violation was not proven where the condition “did not specify the treatment had to be successfully completed on the first try or how many chances the appellant would be given to complete it successfully. This court has repeatedly found similar circumstances insufficient to establish wilful and substantial violations of probation.”

Thus, it is clear that the better practice is for the sentencing court to specify all performance conditions, such as the number of opportunities and a time period for completion of specific probationary conditions. This is critically important because a successor court might be called upon to determine whether a violation occurred.

      . While Davis made no effort to perform his community service obligation, he may have had sufficient time to complete this obligation, at the rate of five hours per month, during the remaining months of his probationary term. However, we do not address this possibility because Davis did not argue it in the trial court, and he does not argue it here as a basis for reversal of the finding that he violated condition 27(c).


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Gene R. SZEREMI, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2315.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.
   STRINGER, Judge.

Gene R. Szeremi seeks review of the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Szeremi’s motion raised seven claims for relief, and the trial court properly rendered a summary denial on all claims but one. Szeremi’s argument in claim six that his plea was involuntary because of his mental condition at the time he entered the plea merits a hearing. Accordingly, we reverse the summary denial of claim six. We affirm the summary denial of claims one through five and seven without comment.

In claim six of his motion, Szeremi argues that his plea was involuntary because he suffers from a developmental disability and was under the influence of psychotropic medication at the time he entered the plea. If true, this could constitute grounds to withdraw the plea. Rivera v. State, 746 So.2d 542, 542 (Fla. 2d DCA 1999); Rodriguez v. State, 652 So.2d 1232, 1233 (Fla. 2d DCA 1995). When a defendant asserts a facially sufficient claim that his plea is involuntary because of his mental condition at the time he entered the plea, the court may summarily deny the claim only if the record conclusively refutes the defendant’s allegations. Rivera, 746 So.2d at 542; Campbell v. State, 488 So.2d 592 (Fla. 2d DCA 1986).

The record provided to this court does not conclusively refute Szeremi’s allegations that his plea was involuntary. The record establishes that, in February 2000, the trial court found Szeremi incompetent to proceed with trial and involuntarily committed him to the Department of Children and Families (“DCF”). In July 2000, DCF submitted a competency evaluation to the court which stated that Szeremi was competent to stand trial. Szeremi entered a nolo contendere plea on June 17, 2002. At the change of plea hearing the court conducted the following examination of Szeremi:

THE COURT: Mr. Szeremi, you’re taking a couple [of] medications, Sinequan and Thorazine.
THE DEFENDANT: Yes, sir.
THE COURT: Are you taking those in such quantities that they significantly affect your reasoning or thinking ability?
THE DEFENDANT: Yes, sir. Sometimes I think I’m Jesus Christ and sometimes I think I’m the Antichrist.
THE COURT: How about right now?
THE DEFENDANT: I feel — I feel hallucinated [sic] and stuff. I didn’t take my medication this morning. The only thing I took was my blood pressure medication.
THE COURT: Okay.
THE DEFENDANT: Judge—
THE COURT: You’re not under the influence of the mind altering drugs at this time?
THE DEFENDANT: No, but I took a strong dose last night, though.
THE COURT: Okay.
THE DEFENDANT: It usually goes for 24 hours and stuff like that.
THE COURT: But you understand what we’re doing here today?
THE DEFENDANT: I think so, yeah.
[DEFENSE COUNSEL]: Judge, I asked him about that this morning because I was curious and I wanted to make sure that he was on the proper dose. And I guess that he did not take his dosage this morning so that his mind would not be cloudy, and I can understand that. And I’ve had dealings with him over the last few years.
And I think that’s similar to some of my other clients, that sometimes they won’t take it that morning. I’m assuming since he’s been taking it in regular doses, it would build up in his system to the extent that it should be satisfactory for today. I don’t have a medical degree, but just experience in dealing with other clients.
THE COURT: You’ve been taking it [the medication] for quite a while, Mr. Szeremi; do you agree with that?
THE DEFENDANT: No.
THE COURT: You don’t agree with that?
THE DEFENDANT: I don’t know what to agree.
THE COURT: What I’m trying to find out is if you know what you’re doing here today?
THE DEFENDANT: I think so.

(Court proceeds with guilty plea hearing.)

Szeremi’s responses to the court’s questioning clearly demonstrate Szeremi’s confusion during the proceeding. Szeremi was also under the effects of psychotropic medication. Although he had not taken his medication the morning of the plea hearing, Szeremi stated during the hearing that he had taken “a strong dose” the night before and that the medication “goes for 24 hours.” Additionally, Szeremi responded affirmatively when the court asked whether the medication was affecting his reasoning. In fact, he said that he felt “hallucinated.”

In light of Szeremi’s earlier determination of incompetence, his apparent confusion during the colloquy, and the fact that Szeremi was to some degree under the influence of psychotropic medication, the record before this court does not sufficiently refute Szeremi’s claim for postcon-viction relief. Cf. Campbell, 488 So.2d at 592 (reversing summary denial of postcon-viction motion when the defendant was on medication and the plea colloquy did not refute his allegations that his plea was involuntary). Accordingly, we reverse and remand for an evidentiary hearing on claim six of Szeremi’s motion.

Affirmed in part; reversed in part; and remanded.

WHATLEY and SALCINES, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Barbara A. HORN, Appellant, v. TANDEM HEALTH CARE OF FLORIDA, INC., Appellee.
    No. 2D02-5658.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.

      John Hugh Shannon of John Hugh Shannon, P.A., Lakeland, for Appellant.
    John W. Bocehino and Gregory A. Jackson, Jr., of Bobo, Ciotolli, Bocehino & Newman, P.A., Orlando, for Appellee.
   NORTHCUTT, Judge.

Barbara Horn filed a premises liability suit against Tandem Health Care of Florida, Inc., stemming from a slip and fall she suffered at Tandem’s nursing home, Arbors at Lakeland. The circuit court granted summary judgment to Tandem, holding it was entitled to workers’ compensation immunity because Horn was Tandem’s borrowed employee at the time of the accident. The record on Tandem’s motion for summary judgment did not support the holding. Accordingly, we reverse.

To justify a summary judgment, the record must conclusively demonstrate that there are no issues of material fact and that the movant is entitled to judgment as a matter of law. Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979). Thus, the question here is whether the record conclusively demonstrated that Horn was Tandem’s borrowed employee.

Horn was employed by Columbia Brandon Hospital as a respiratory therapist. Columbia and Tandem’s predecessor corporation entered into a contract under which Columbia furnished respiratory therapy services to Tandem’s nursing home residents when ordered by the residents’ attending physicians. On the day of Horn’s injury, Columbia had sent her to Arbors at Lakeland to perform services pursuant to that contract.

When determining that Horn was Tandem’s borrowed employee, the circuit court posited that there was no appreciable distinction between this case and Maxson Construction Co. v. Welch, 720 So.2d 588 (Fla. 2d DCA 1998). In fact, however, that ease bears little similarity to this one. Maxson had entered into a contract with AMA Staff Leasing under which AMA was to oversee Maxson’s payroll and provide workers’ compensation and other benefits to Maxson’s employees. When Welch began working at Maxson, he signed documents declaring him to be an employee of AMA. Welch was injured while working on a Maxson project and received workers’ compensation benefits through AMA. He eventually settled his workers’ compensation claim in a lump sump settlement, approved by the judge of compensation claims in an order that listed AMA as the employer. Welch then sued Maxson, contending that Maxson was his only employer and that Maxson’s failure to provide him with workers’ compensation benefits subjected it to liability in tort.

This court reversed a judgment in Welch’s favor. Id. at 590. The court held that Maxson was entitled to workers’ compensation immunity based on two statutory provisions, the relevance of which stemmed from the uncontested fact that AMA was a staff leasing company. First, the court pointed to section 468.529(1), Florida Statutes (1995), which provides that a licensed leasing company is the employer of the leased employees. Second, the court held that Maxson’s use of an employee leasing service entitled it to workers’ compensation immunity pursuant to section 440.11(2), Florida Statutes (1995). Id. at 589-90. Section 440.11(2) provides in part that workers’ compensation immunity

shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363.... An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer.

Standard Industry Code 7363 refers to “[e]stablishments primarily engaged in supplying temporary or continuing help on a contract or fee basis.” Sagarino v. Marriott Corp., 644 So.2d 162, 165 (Fla. 4th DCA 1994). AMA, the licensed staff leasing company involved in Welch, obviously met that definition. But in this case the record contained nothing to suggest that Columbia was “primarily” engaged in supplying help on a contract or fee basis. For this reason, section 440.11(2) does not support Tandem’s summary judgment, and Welch does not control this case.

Neither did the record demonstrate that Horn was Tandem’s special employee outside the statutory context. Under the tests established in case law, there is a presumption that the employee’s general employment has continued. Shelby Mut. Ins. Co. v. Aetna Ins. Co., 246 So.2d 98, 101 (Fla.1971) (citing 1A Larson, Workmen’s Compensation, § 48.10 (1967)). To determine whether an employee’s “general” employer has lent her to a “special” employer, the courts have devised a multifaceted test consisting primarily of three elements: (1) whether there was a contract for hire, express or implied, between the special employer and the employee; (2) whether the work being done at the time of the injury was essentially that of the special employer; and (3) whether the power to control the details of the work being done at the time of the accident resided in the special employer. Shelby, 246 So.2d at 101 n. 5.

The first factor — that there was a contract for hire between the special employer and the employee — is the critical one, the others being indicia of such a contract. Shelby, 246 So.2d at 101 n. 5; Venezia v. Egan, 671 So.2d 175, 177 (Fla. 5th DCA 1996). The evidence of a contract creating a special employment must amount to a “clear demonstration” of a “deliberate and informed consent” by the employee. Shelby, 246 So.2d at 101. This is because an employee loses rights when she enters into an employment relationship, the most important of which is the right to sue the special employer for negligence. See id. (citing Larson, § 48.10).

Here, there was no express contract between Horn and Tandem, so any contract for hire between them could only be implied. But the two factors that most commonly imply the existence of a contract for hire either were lacking or were sufficiently debatable that they did not amount to a “clear demonstration” of a “deliberate and informed consent” by Horn. See id. The record in this case did not conclusively demonstrate that the power to control the details of Horn’s work at the time of the accident resided in Tandem. If anything, the evidence proved the contrary. Under its contract with Columbia, Tandem agreed to schedule therapy visits pursuant to orders by the residents’ attending physicians, to designate a “contact person” in the nursing home’s management “for Therapist(s) to communicate with,” and to perform “certain administrative services” for the therapists. On the other hand, the contract declared that the “Hospital shall maintain ultimate control and responsibility for Therapists and the services provided by Therapists hereunder.” Consistent with that contract provision, Horn testified that her work at Arbors, and the other nursing homes to which she was assigned, was overseen by supervisors employed by Columbia.

The second factor, whether Horn’s work was essentially that of Tandem, presents a closer question. But, given the contract provision assigning ultimate responsibility for the therapists’ work to Columbia, it is at best arguable whether this factor supports a finding of special employment at all, let alone under the stringent test governing motions for summary judgment.

Tandem points out that those factors do not constitute an exhaustive list. It contends that a contract for hire between Tandem and Horn should be implied from Horn’s knowledge of and acquiescence to the agreement between Tandem and Columbia. But the Tandem/Columbia contract went to pains to clarify that the therapists were not to be considered employees of Tandem:

Hospital and its Therapist(s) are not employees of Facility, are responsible for all taxes and insurance and thereby indemnify Facility for any and all liability therefor. Further, Hospital and its Therapist(s) agree that they shall not have any claim against Facility under this Agreement for vacation, sick leave, retirement benefits, workers’ compensation, disability or unemployment insurance benefits, or employee benefits of any kind.

Certainly, no contract for hire could be implied from Horn’s acquiescence to an agreement that explicitly disavowed any such relationship.

We reverse the summary judgment and remand for further proceedings.

SALCINES and STRINGER, JJ., Concur.

      . The Standard Industrial Classification (SIC) system, promulgated by the Office of Management and Budget, was the industry classification system used by statistical agencies of the United States. In 1997 the OMB began phasing it out in favor of the newly devised North American Industry Classification System.


author: WALLACE, Judge.

text:
    STATE of Florida, Appellant, v. Eric REEDY, Appellee.
    No. 2D03-1577.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   WALLACE, Judge.

The State appeals the trial court’s order dismissing a grand theft charge filed against Eric Reedy. Because Reedy’s motion for dismissal was not made in writing and served on the State a reasonable time before the hearing as required by Florida Rules of Criminal Procedure 3.060 and 3.190(a), we reverse and remand for further proceedings.

The State charged Reedy with one count of grand theft and one count of perjury in an official proceeding. On the day of the scheduled trial, Reedy’s counsel informed the court that a plea agreement had been reached on the perjury charge. Then defense counsel made an oral motion to dismiss the grand theft charge, arguing various grounds in support. Although the prosecutor objected and advised the court that he had no time to prepare for argument because he had just been confronted with the defense arguments, the trial court dismissed the grand theft count.

Florida Rule of Criminal Procedure 3.190(a) requires that a motion to dismiss be in writing. State v. Alexander, 831 So.2d 1252 (Fla. 2d DCA 2002); State v. Pope, 674 So.2d 901 (Fla. 2d DCA 1996). Moreover, rule 3.060 requires that notice of a hearing concerning a written motion that may not be heard ex parte shall be served on the adverse party “a reasonable time” before the hearing. Because the defense did not file a written motion to dismiss, the State had no opportunity to prepare its version of the facts for the consideration of the trial court as contemplated by rule 3.190(d). See Pope, 674 So.2d at 901. Accordingly, the trial court erred in dismissing the grand theft charge against Reedy.

Reversed and remanded for further proceedings.

CASANUEVA and STRINGER, JJ., Concur.


author: DANAHY, PAUL W., Senior Judge.

text:
    Haruya KAWAGUCHI, Appellant, v. Nancy J. BENTLE, Appellee.
    Nos. 2D03-1605, 2D03-1793.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.
    Charles W. Hall and Mark D. Tinker of Fowler White Boggs Banker, P.A., Tampa, for Appellant.
    Gary A. Magnarini and Mark Hicks of Hicks & Kneale, P.A., Hollywood, and Abrahamson Uiterwyk & Barnes, Tampa, for Appellee.
   DANAHY, PAUL W., Senior Judge.

In these consolidated cases, Haruya Ka-waguchi appeals the final judgment entered in favor of Nancy J. Bentle in a personal injury action arising out of a motor vehicle accident and the contingency fee multiplier awarded to Ms. Bentle’s counsel pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.442. We affirm the final judgment entered in favor of Ms. Bentle without discussion. We reverse, however, the trial court’s award of a contingency fee multiplier in light of the supreme court’s holding in Sarkis v. Allstate Insurance Co., 863 So.2d 210, 2003 WL 22250352 (Fla. Oct. 2, 2003) (holding that a contingency multiplier may not be applied to a fee award pursuant to section 768.79).

Affirmed as to Case No. 2D03-1605; reversed as to Case No. 2D03-1793.

FULMER and SALCINES, JJ., Concur.


author: PER CURIAM.

text:
    Clarence BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2495.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.
   PER CURIAM.

Clarence Burgess appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the trial court’s denial of the motion on the ground that it is facially insufficient. See Saffold v. State, 850 So.2d 574 (Fla. 2d DCA 2003); Fla. R.Crim. P. 3.853(b)(3), (4). Our affirmance is without prejudice to any right Burgess may have to file a facially sufficient motion within sixty days from the date of the issuance of the mandate in this case. See Saffold, 850 So.2d at 577-78; Cherryhomes v. State, 857 So.2d 277 (Fla. 2d DCA 2003).

Affirmed.

FULMER, VILLANTI, and WALLACE, JJ., Concur.


text:
    Alex O. MICHEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3054.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.
    Alex O. Michel, in proper person.

      Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).


text:
    David WAINER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-1975, 4D02-2016.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this appeal, the public defender has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm appellant’s sentence which was imposed following this court’s mandate. See Wainer v. State, 798 So.2d 885 (Fla. 4th DCA 2001). This affirmance is without prejudice to appellant challenging his plea by a timely post conviction motion pursuant to Florida Rule of Criminal Procedure 3.850.

STONE, WARNER and GROSS, JJ., concur.


text:
    Joseph Columbo NAZZARO, Jr., Appellant, v. STATE of Florida, DEPT. OF HEALTH AND REHAB. SERVICES, OFFICE OF CHILD SUPPORT ENFORCEMENT, on Behalf of Joseph BOYD By and Through Linda M. BOYD as Custodian and Next Friend, Appellee.
    No. 3D02-3121.
    District Court of Appeal of Florida, Third District.
    Jan. 14, 2004.
    Joseph Columbo Nazzaro, Miami, for appellant.
    Kathrine Fernandez Rundle, State Attorney, and Kathryn Fenske, Assistant State Attorney, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

This is an appeal of an order setting a child support arrearage, and denying relief from judgment on a 1993 child support order. As no reversible error has been shown, the orders are affirmed.


text:
    Terrance D. McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-705.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Terrance D. McClendon, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

We reverse the trial court’s denial of the appellant’s rule 3.850 motion for postcon-viction relief. The order denying relief does not show the rationale used by the court to summarily deny the motion, nor does it attach any record excerpts that specifically address the claims raised in the rule 3.850 motion. See Anderson v. State, 627 So.2d 1170 (Fla.1993) (citing Hoffman v. State, 571 So.2d 449, 450 (Fla.1990)). Our supreme court has consistently described the lower court’s duties when denying such a motion as “a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Id. at 1171.

In the instant case, the appellant filed both a rule 3.850 motion and a rule 3.800 motion, both summarily denied by the lower court on the same day. The record reveals the lower court attached the state’s response to the rale 3.800 motion as its justification for denying the appellant’s rule 3.850 motion. As no other rationale was contained within the order denying relief, the order fails to comply with the requirements of Florida Rule of Criminal Procedure 3.850(d) and cases such as Anderson and Hoffman.

Therefore, the order denying relief is reversed and remanded to the trial court for the attachment of record excerpts conclusively showing appellant is entitled to no relief with respect to his rule 3.850 motion. If no such record excerpts exist for all the claims raised therein, the appellant is entitled to an evidentiary hearing on those claims not conclusively refuted by the record.

FARMER, POLEN and KLEIN, JJ., concur.


text:
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. Diane PICCOLO and David Piccolo, Appellees.
    No. 4D03-3573.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Kathy J. Maus and James P. Waczewski of Butler, Pappas, Weihmuller, Katz, Craig, LLP., for appellant.
    Julie H. Littky-Rubin and David M. Gaspari of Lytal, Reiter, Clark, Fountain & Williams, LLP., West Palm Beach, for appellees.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

FARMER, C.J., POLEN and SHAHOOD, JJ., concur.


text:
    James WHITIKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3233.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    James Whitiker, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

James Whitiker (Appellant) appeals the summary denial of his motion for postcon-viction relief, pursuant to rule 3.850, Florida Rules of Criminal Procedure, filed in connection with L.T. case nos. 98-9297 and 99-15244, in which he entered a negotiated nolo contendere plea. Appellant alleged that his defense counsel at the time of the plea advised him that, under the terms of the plea agreement, the sentences in these cases would run concurrent with the sentences he was already serving in several 1997 cases. When he returned to prison, however, he learned that the new sentences were being run consecutive to the prior ones, and he would not begin to serve them until the earlier sentences expired.

The trial court summarily denied the motion based on the state’s claim that the written plea agreement and the transcript of the plea colloquy conclusively refuted Appellant’s claim. On the contrary, neither the plea agreement nor the transcript addressed whether the new sentences would be concurrent or consecutive to the prior ones. Accordingly, we reverse the summary denial of Appellant’s motion and remand for either an evidentiary hearing or the trial court’s attachment of record portions conclusively refuting Appellant’s claim.

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


text:
    Ruby C. ADAMS, Appellant, v. Lennie ALLEN, Appellee.
    No. 4D03-2662.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Ruby C. Adams, Pflugerville, TX, pro se.
    Lennie T. Allen, Loxahatchee, pro se.
   PER CURIAM.

Affirmed. Fla. RApp. P. 9.315(a). Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (1979).

WARNER, KLEIN and GROSS, JJ., concur.


author: CANADY, Judge.

text:
    Andrea M. KLAK and Kenneth P. Klak, wife and husband; Warren L. Garland and Dorothea T. Garland, husband and wife; Jack B. Slorah and Patricia M. Slorah, husband and wife; James R. Cobb and Gloria S. Cobb, husband and wife; Thomas J. Ciriello, Susan Light, Hans Walter Selig, and Anastasia R. Seelig, co-trustees; David P. Kennedy and Susan M. Kennedy, husband and wife; Bruno Gallelli and Maria Gallelli, husband and wife; Carl Conrad; John S. Havill; Dr. Laz N. Kavouklis and Maria M. Kavouklis, husband and wife; Charles E. Mainard and Patricia J. Mainard, husband and wife; Gail M. Fern, as trustee of the Gail M. Fern trust; Julia Ann Roberts; Kevin K. Moran; Frances T. Achnitz and William P. Achnitz, wife and husband; K.M. Taylor; John T. Wehlau and Cheryl Lynne Wehlau, husband and wife; Robert J. Hildenbrand and Lan Hildenbrand, husband and wife; Harry W. James, Jr., and Fran James, husband and wife; Vincent A. Tuccio and Carolyn M. Tuccio, husband and wife; Glenn B. Shane and Lara G. Shane, husband and wife; Kimberly D. Campbell; James P. Delellis and Ruth Delellis, husband and wife; Theodore Maslo and Cynthia Maslo, husband and wife; John Hummell; James N. Dishman, Jr., and Joyce A. Dishman, husband and wife; Thomas R. Vrecenak; Charles C. Richards and Sharon P. Richards, husband and wife; Judith Ann McDermot; Ronald E. Miller; Elizabeth Fryer; Edward Stuhl and Joan Stuhl, husband and wife; Sam Sahagian and Jo Ann Sahagian, husband and wife; Joseph Dwyer and Sharon A. Dwyer, husband and wife; Charles J. Preston; Stephen Gayle; Diane Jude; Gerard P. Benatar; Brady M. Shirley and Margie R. Shirley, husband and wife; Fred B. Leiner; Robert P. Kelly and Anna R. Kelly, husband and wife; Noel S. Tenebaum; Lucille Laprade; Walter S. Ksocomb and Cynthia C. Ksocomb, husband and wife; Cynthia L. Evans; Gregory R. Henderson and Vicky Hendeson, husband and wife; Bernard L. Mayzell and Nataliew Mayzell, husband and wife; Ted W. Walters; Harold Kogut and Deanna Kogut, husband and wife; Sidney P. Cooper and Susie Cooper, husband and wife; Gerry R. Cline and Susan T. Cline, husband and wife; Jack Peterson and Suzie Peterson, husband and wife; David Larson and Delyn Larson, husband and wife; George Nowak; Maria Depeirn; George M. Sonnett and Elizabeth E. Sonnett, husband and wife; Fernando L. Arroyo; B.S. Safley; R. Enid Gaud; Warren Scherer and Nancy Scherer, husband and wife; Richard G. Ingher; and Gerald W. Conrad and Bonita A. Conrad, husband and wife, Appellants, v. EAGLES’ RESERVE HOMEOWNERS’ ASSOCIATION, INC., a/k/a Nature’s Watch, a Florida not for profit corporation, Appellee.
    No. 2D01-4727.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2004.

      C. Philip Campbell, Kevin H. Graham, and Mark A. Connoll of Shumaker, Loop & Kendrick, LLP, Tampa, for Appellants.
    Gail M. Fern, pro se.
    James R. Cobb, pro se.
    No Appearance for Appellee.
    Henry A. Stein and Phyllis J. Towzey of Stein & Towzey, L.L.P:, St. Petersburg, for Amicus Curiae Berger Parties.
   CANADY, Judge.

A group of aggrieved homeowners appeals a final declaratory judgment determining that their homeowners’ association is liable for the cost of reconstructing defective walls of dwelling units. Because we conclude that the governing declaration of covenants and restrictions does not impose such liability on the homeowners’ association, we reverse the declaratory judgment.

I. BACKGROUND

Kenneth P. Klak and Andrea M. Klak, along with ninety-seven other owners (the Klak group) of units in the Eagles’ Reserve community, filed an action (the Klak suit) seeking declaratory relief against the Eagles’ Reserve Homeowners’ Association, Inc. (the association). Eagles’ Reserve is a community compound of townhouses and villas in which each dwelling unit and the land on which it is located is in fee simple ownership. Eagles’ Reserve thus is not a condominium.

The conflict between the Klak group and the association arose from the association’s decision to undertake the repair and substantial reconstruction of certain dwelling units that were affected by serious construction defects. The Klak group contended that the governing declaration of covenants and restrictions (the declaration) did not authorize the association to undertake the reconstruction project. In its complaint, as amended, the Klak group sought: (1) a judicial declaration concerning the association’s duties and responsibilities with respect to the construction defects; (2) relief for breach of fiduciary duty by the association; and (3) an accounting by the association. It appears that the position of the Klak group was related, at least in part, to its concern that the association’s assumption of responsibility for the repairs and reconstruction would adversely affect the ability of individual homeowners to pursue insurance claims for the damages to their units. The Klak group posits a scenario in which individual homeowners would be unable to collect under their homeowner’s insurance but would bear the economic burden of the repairs and reconstruction through maintenance assessments imposed by the association.

After the filing of the Klak suit, Harold Berger, as trustee of the estate of Fred Berger, deceased, and a group of other Eagles’ Reserve homeowners (the Berger group) filed suit (the Berger litigation) against the association seeking dissolution of the association and the appointment of a receiver or custodian for the association. While the Klak group claimed that the reconstruction project undertaken by the association was unauthorized, the Berger group contended that the association had failed to pursue the reconstruction project with sufficient diligence. The Klak group intervened in the Berger litigation. Although the Klak suit and the Berger litigation were never formally consolidated, the same judge ultimately presided over both proceedings and dealt with the claims in the two actions as though they had been consolidated.

Prior to the entry of the final declaratory judgment that is now under review, the trial court considered the Berger group’s motion for appointment of a receiver or custodian. A hearing on the motion was conducted on June 12, 2001. On July 11, 2001, the trial court entered an order on motion for appointment of receiver. In that order, the trial court determined that the association had the obligation under the declaration to repair and reconstruct the exterior walls of the dwelling units “from the interior coat of paint to the outside of the buildings.” The court withheld ruling on the request for the appointment of a receiver but maintained its jurisdiction “to appoint a Receiver if the Court finds the Board of Trustees is recalcitrant in carrying out the Association’s obligations pursuant to the Court’s rulings described herein.”

Thereafter, on October 9, 2001, the trial court entered an order appointing a receiver/custodian. The trial court determined that the Berger group had

presented a prima facie case that the ... board of directors [was] engaging in waste and misapplication of corporate assets by its refusal to proceed with collections of accounts receivable and with repairs and maintenance to the exterior of the dwelling units as required by the applicable Declaration, The Articles of Ineorporation[,] and the requirements of Florida law.

The court ordered the receiver to complete specified repairs to certain structures and authorized additional repairs to certain other structures.

In the meantime, on June 20, 2001, the trial court had entered the final declaratory judgment in the Klak suit, and the Klak group then instituted this appeal. The trial court entered the final declaratory judgment even though a motion to dismiss filed by the Klak group was pending and no answer to the complaint had been filed by the association. The Klak group also subsequently sought interlocutory review in this court of the order appointing receiver/custodian in the Berger litigation. The order, however, was per curiam. affirmed without opinion. Klak v. Berger, 818 So.2d 512 (Fla. 2d DCA 2002) (Table).

During the pendency of this appeal, leadership of the association changed hands and the association shifted its position to align itself with the Klak group. In the briefing and argument of the case, the sole support for affirmance of the final declaratory judgment has come from the Berger group, who is not a party to this proceeding but has appeared as amicus curiae.

II. ISSUES ON APPEAL

The Klak group urges that the final declaratory judgment is based on the trial court’s erroneous interpretation of the declaration. The fundamental substantive issue presented is whether the declaration provides for the association to make structural repairs to the walls of the units in the development. The Berger group argues that the trial court properly interpreted the declaration and that further litigation of the issue is, in any case, precluded by the doctrines of law of the case and res judicata. We are therefore also presented with a threshold procedural issue: whether the order appointing receiver/custodian which was per curiam affirmed without opinion by this court precludes further litigation concerning the proper interpretation of the declaration.

III. ANALYSIS

A. The Effect of the Order Appointing Receiver/Custodian

Res judicata and law of the case are related doctrines which preclude the relitigation of previously determined matters under circumstances where such relit-igation would be unjust or inappropriate. Both doctrines are based on considerations of judicial economy and are aimed at preventing undue expense and vexation to litigants as well as avoiding inconsistent results. Although the purpdse and effect of the doctrines of res judicata and law of the case are similar, the conditions for application of the respective doctrines are different.

“The rules of res judicata state when a judgment in one action is to be carried over to a second action and given a conclusive effect there.” Restatement (Second) of Judgments § 18 cmt. a (1982). “[T]he law of the case doctrine is concerned with the extent to. which the law applied in decisions at various stages of the same litigation becomes the governing principle in later stages.” Lawrence B. Solum, Moore’s Federal Practice ¶.134.01[2] (3d ed.2003).

1. Res Judicata

Res judicata is only applicable where there is a relevant prior final judgment. See Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (stating that “[a] judgment on the merits rendered in a former suit” is required for application of res judicata) (citations omitted); Thoman v. Ashley, 170 So.2d 332, 333 (Fla. 2d DCA 1964) (“One of the necessary elements in rendering a cause res judicata is a prior final judgment.”) (citation omitted); Donnell v. Indus. Fire & Cas. Co., 378 So.2d 1344, 1346 (Fla. 3d DCA 1980) (“No order may be- res judicata as to a subsequent case unless it is a final judgment which disposes of the controversy in the first one.”) (citations omitted).

Here, the Berger group argues that the order appointing receiver/custodian in the Berger litigation is a basis for invoking the doctrine of res judicata to preclude relief to the Klak group in the Klak suit. But the order appointing receiver/custodian is not a final judgment, and no final judgment has been entered in the Berger litigation. The doctrine of res judicata thus has no application here.

2. Law of the Case

In Juliano, the supreme court explained the basic difference between res judicata and law of the ease and summarized the principles governing application of the doctrine of law of the case:

Where successive appeals are taken in the same case there is no question of res judicata, because the same suit, and not a new and different one, is involved. Under these circumstances, the doctrine of the law of the case applies. The doctrine of the law of the case is also a principle of judicial estoppel, but it is more limited and more flexible in scope. The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings. Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision[s] are based continue to be the facts of the ease. Moreover, even as to those issues actually decided, the law of the case doctrine ... provides that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a “manifest injustice.”

801 So.2d at 105-06 (citations omitted).

Juliano sets forth a further limitation in the application of the doctrine:

[W]here a previous appellate court has given no explanation for its decision, a subsequent appellate court is not bound by the law of the case unless a determination concerning the propriety of the trial court’s order is necessarily inconsistent with every possible correct basis for the earlier rulings of the appellate court.

Id. at 108.

The case law also establishes that the law of the case doctrine will not be employed to give preclusive effect to a decision or determination that was “based on a less-than-full hearing.” Arch Southeast Communications, Inc. v. Abraham Communications, Inc., 702 So.2d 556, 558 (Fla. 2d DCA 1997) (holding that decision denying motion to compel arbitration— which was affirmed on appeal — did not preclude further litigation concerning validity of underlying agreement between the parties). The issuance or denial of a preliminary injunction is the paradigmatic circumstance where a determination is made by a court without the benefit of a full hearing of the issues. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (“[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.”) (citations omitted). Because a decision based on a less-than-full hearing — such as the issuance or denial of a preliminary injunction — is by its very nature provisional, it would be nonsensical to give it binding effect on the subsequent proceedings in the same case. This is true, of course, even where the tentative determination of a trial court has been the subject of interlocutory appellate review. See Belair v. City of Treasure Island, 611 So.2d 1285, 1289 (Fla. 2d DCA 1992) (“The fact that this court affirmed the trial court’s previous order granting a temporary injunction does not prohibit an appeal on the order granting a permanent injunction involving the same facts.”) (citations omitted); Ladner v. Plaza Del Prado Condo. Ass’n, 423 So.2d 927, 929 (Fla. 3d DCA 1982) (“[A]hy expression on the merits of the case by an appellate court reviewing an order granting or denying a preliminary injunction, where review is based on a record made at a less-than-full hearing, will not be binding at trial on the merits.”)

Here, the order appointing receiver/custodian was by its very nature a provisional order that should not be given binding effect in the subsequent proceedings in the Klak case and the Berger litigation. The tentative nature of the court’s order arises from the fact that the appointment of a receiver — like the issuance of a preliminary injunction — is ordinarily a step taken to preserve the status quo pending the ultimate resolution of the dispute between the parties. And here, the order itself — by its statement that the Berger group “presented a prima facie case”— makes explicit that it was not based on a full hearing and consideration of all the relevant facts and legal issues.

We thus conclude that the trial court’s interpretation of the declaration in the Berger litigation is not the law of the case. Because we have determined that the order appointing receiver/custodian was based on a less-than-full hearing, we need not consider whether the per curiam affir-mance without opinion by this court in the Berger litigation would have been sufficient under the circumstances to establish the law of the case. Similarly, we need not consider whether the Klak suit and the Berger litigation are the “same case” — or part of the same case — for purposes of applying the law of the case doctrine. We do note, however, that the procedural posture of this appeal — in which the Berger group does not appear as a party — raises serious questions concerning whether the Klak suit should be considered the “same case” as the Berger litigation.

B. The Responsibility of the Association Under the Declaration

Paragraph 8.2 of the declaration, which sets forth the maintenance responsibilities of the association, states in pertinent part:

The Association shall have the right and obligation to maintain the exterior of the Dwelling Units, including the landscaping on the Lot, in good order and repair, including, but not limited to the following: painting exterior building surfaces; repairing, replacing and caring for roofs, gutters, down spouts; mowing, trimming and fertilizing trees, shrubs and lawns; maintaining and repairing walks, driveways, roadways, and any other exterior improvements; but not including exterior components of interior systems such as air conditioning compressors, spa filters and pumps, vents, etc. All such maintenance shall be performed utilizing such materials, and such colors and quality as that originally utilized by the Developer or later specified by the Association and/or the DRB, as appropriate. Such exterior maintenance, including landscape maintenance, painting, etc., shall be performed in accordance with- frequency standards to be determined, from time to time, by the Developer and/or the Association. The Developer and/or the Association, their employees and agents may enter upon any Lot and upon the exterior of any Dwelling Unit to provide for the exterior maintenance upon each such Dwelling Unit or Lot. Such entry by the Developer or the Association or any of their employees or agents shall not be a trespass and by accepting the deed for a Lot, the owner expressly grants to the Developer and the Association the continuing permission to do so, which permission may not be revoked. The Owner may not alter the exterior landscaping on a Lot in any fashion without the express written consent of the Developer and/or the Association.

The core of the declaration provision at issue states that “[t]he [association shall have the right and obligation to maintain the exterior of the Dwelling Units.” This case thus turns on the meaning of the phrase, “the exterior of the Dwelling Units.” As we have previously noted, in the final declaratory judgment, the trial court determined that “the term ‘exterior of the Dwelling Units’ includes everything from the interior coat of paint to the outside of the buildings.” Based on this interpretation of the declaration, the trial court determined that the association has the responsibility to repair and reconstruct the damaged and defective exterior walls of the units.

The trial court’s ruling regarding the meaning of the declaration is subject to de novo review. See Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001) (“Because interpretation of a contract is a question of law, we apply a de novo standard of review.”). We conclude that the trial court’s interpretation of the text of the declaration is unreasonable and erroneous, because in interpreting the declaration the trial court neglected to give effect to the commonly understood meaning of the word “exterior.” See Interfirst Fed. Sav. Bank v. Burke, 672 So.2d 90, 92 (Fla. 2d DCA 1996) (“Contract language must be given its plain meaning.”); Schechtman v. Grobbel, 226 So.2d 1, 3 (Fla. 2d DCA 1969) (“[C]learly written provisions of contracts entered into by ordinary men should be construed in the light of common understanding.”); Beans v. Chohonis, 740 So.2d 65, 67 (Fla. 3d DCA 1999) (stating principle of contract interpretation that words must be “given their plain and ordinary meaning”). .

The primary definition of the noun exterior is “the outer surface or part.” Random House Unabridged Dictionary 684 (2d ed.1993); see also The American Heritage Dictionary of the English Language 648 (3d ed.1992) (“[a] part or a surface that is outside”). Accordingly, the plain meaning of the phrase “the exterior of the Dwelling Units” is the outer surface of the dwelling units. That is a far different meaning than “everything from the interi- or coat of paint to the outside of the buildings” — the meaning assigned to the phrase by the trial court. The trial court reads the declaration as though it made reference to the exterior walls of the dwelling units. But the declaration contains no such reference or anything equivalent to such a reference. The words of the declaration do not justify treating it as though it were a condominium, which is the practical effect of the trial court’s ruling. See Richard D. DeBoest, Creating the Fee Simple Condominium, Florida Condominium Law and Practice, § 4.2, at 4-7 (The Fla. Bar 3d ed.2003) (setting forth sample condominium declaration imposing maintenance obligation on condominium association for “[a]ll exterior building walls” (¶ 6.1.8), and defining individual owner’s unit as bounded by “the finished and undecorated interior surfaces of the perimeter walls of the unit” (¶ 5.1.2)).

In addition to the plain meaning of the term “exterior,” the consistent tenor of the entire maintenance provision of the declaration points to the conclusion that the association’s responsibility for the maintenance of the walls of the units pertains only to the outer surfaces of those walls. The reference to “painting exterior building surfaces” is a clear indication that the scope of the association’s responsibilities does not extend as far as the trial court would have it.

The specific reference to “repairing, replacing[,] and caring for roofs, gutters, downspouts” does nothing to undermine our interpretation of the general language providing for the maintenance of the exterior of the units. The language of the declaration makes clear the duty of the association with respect to replacing the roofs of the units. The specific language in the declaration on that point — together with the absence of similar language with respect to the repair and replacement of defective walls of the units — reinforces our conclusion that the trial court’s interpretation of the declaration was erroneous.

TV. CONCLUSION

We therefore reverse the final declaratory judgment and remand for proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ„ Concur.


text:
    George WIGHT, Jr., et al., Appellants, v. G. Leonard GIOIA, M.D., et al., Appellees.
    No. 5D03-1771.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2004.
    Casey Walker of Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy, P.A., Vero Beach, for Appellants.
    Gregory A. Anderson and Brett A. Hastings of Anderson, St. Denis & Glenn, P.A., Jacksonville, for Appellee.
   PER CURIAM.

We conclude that the lower court had jurisdiction to hear the merits of the appellants’ motion to set aside final judgment filed pursuant to Rule 1.540, Florida Rules of Civil Procedure, and that it was error to decline to hear the motion on jurisdictional grounds. See Leisure Resorts, Inc. v. City of West Palm Beach, 736 So.2d 1278 (Fla. 4th DCA 1999). Ruling on the motion would not impinge on or interfere with our consideration of the other final judgment rendered by the trial court, which is the subject of the appeal in Rivard v. Gioia, Case No. 5D02-3112. On remand, therefore, the trial court should consider and rule on the merits of the motion.

REVERSED and REMANDED.

SHARP, W., GRIFFIN and MONACO, JJ., concur.


author: SILBERMAN, Judge.

text:
    Troy THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2613.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.

      Victoria L. Bloomer of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Troy Thompson appeals his sentences for robbery with a firearm and kidnapping with a firearm that were imposed on re-sentencing. Because the trial court erred in reclassifying the kidnapping offense and in imposing minimum mandatory sentences pursuant to section 775.087, Florida Statutes (Supp.1996), we reverse and remand for resentencing.

On March 3, 1997, the State charged Thompson and a co-defendant, Olendo Ulysius Murphy, in a single information with robbery with a firearm and armed kidnapping. With respect to the robbery charge, the information alleged that “in the course of said robbery, TROY LANCE THOMPSON AND OLENDO ULYSIUS MURPHY carried a firearm.” With respect to the kidnapping charge, the information alleged that “during the commission of said kidnapping, TROY LANCE THOMPSON AND OLENDO ULYSIUS MURPHY carried, displayed, used, threatened, or attempted to use a weapon, to wit: a firearm.” Thompson and Murphy were tried separately, but one of the State’s theories at Thompson’s trial was that even if he was not the actual perpetrator of the crimes, he was guilty of the offenses as a principal.

During closing statements, the prosecutor argued that the jury had to find Thompson guilty of robbery with a firearm if Thompson intentionally and consciously assisted Murphy in committing the robbery, “even though he didn’t possess the firearm that was held to Ms. Dae’s head.” The trial court instructed the jury, in part, as follows:

If the defendant helped another person or persons to commit a crime, the defendant is a principle [sic] and must be treated as if he had done all the things the other person or persons did if the defendant had a conscious intent that the criminal act be done and the defendant did some act or some word which was intended to and which did insight [sic], cause, encourage, assist or advise the other person or persons to actually commit the crime.

The verdict form reflects that the jury found Thompson “guilty of Robbery With a Firearm, as charged,” and “guilty of Armed Kidnapping with a Firearm, as charged.” However, the jury was not asked to determine whether Thompson actually or constructively used or possessed a firearm.

Section 775.087 provides:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(2) Any person who is convicted of a felony or an attempt to commit a felony and the conviction was for:
(c) Robbery; [or]
(h) Kidnapping;
and during the commission of the offense, such person possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 8 years.

The scoresheet used for resentencing reflects that, pursuant to section 775.087(1), the armed kidnapping was reclassified and scored as a level ten, life felony, instead of a level nine, first-degree felony. The scoresheet also reflects that the robbery with a firearm was scored as a level nine, first-degree felony. The reclassification of the kidnapping and the scoring of both crimes, based on the involvement of a firearm, increased Thompson’s guideline sentence range. Over Thompson’s objections, the trial court sentenced Thompson to concurrent sentences of 129.25 months’ imprisonment followed by twenty years’ probation. Each sentence included a three-year minimum mandatory term of imprisonment pursuant to section 775.087(2).

Thompson argues that the trial court erred in reclassifying the kidnapping offense, in scoring the offenses, and in imposing a minimum mandatory term of imprisonment because the jury did not find that he actually used or possessed a firearm. We agree.

It is well-established that “ ‘[b]e-fore a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.’ ” State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (quoting Overfelt v. State, 434 So.2d 945, 948 (Fla. 4th DCA 1983)); see also State v. Hargrove, 694 So.2d 729, 730 (Fla.1997). The verdict must also reflect a “ ‘clear jury finding’ ” that the defendant used a firearm before the defendant’s sentence may be enhanced. Orjales v. State, 758 So.2d 1157, 1159 (Fla. 2d DCA 2000) (quoting Hargrove, 694 So.2d at 731).

Even if an information charges the use of a firearm, a verdict form that simply recites that the defendant is guilty as charged does not support reclassification of the crime under section 775.087(1) because there is no specific jury finding that the defendant used a firearm. See Toro v. State, 691 So.2d 576, 577 (Fla. 2d DCA 1997). Moreover, an “as charged” verdict will not support the imposition of a minimum mandatory sentence under section 775.087(2) when the verdict fails to reflect that the defendant was in actual, as opposed to constructive, possession of a firearm. Henry v. State, 834 So.2d 406, 407 (Fla. 2d DCA 2003).

The State argues that even in the absence of any reference to the use of a firearm on the face of the verdict, a guilty “as charged” verdict supports reclassification of the offense and the imposition of minimum mandatory sentences when the verdict refers to an information which charges the defendant with committing a crime while using a firearm. See Tucker v. State, 726 So.2d 768 (Fla.1999); Muldrow v. State, 842 So.2d 240 (Fla. 2d DCA 2003); Luttrell v. State, 513 So.2d 1298 (Fla. 2d DCA 1987). Under the circumstances of the present case, this argument fails for two reasons.

First, Tucker, Muldrow, and Luttrell involved individual defendants rather than multiple defendants. Here, the information jointly charged Thompson and Murphy with the use and possession of a firearm without specifying which of them actually used or possessed the firearm. The State argued to the jury and the trial judge instructed the jury that it could find Thompson guilty under the principal theory based upon Murphy’s use and possession of a firearm. The “as charged” verdict does not clearly reflect that Thompson, as opposed to Murphy, used or possessed a firearm during the commission of the crimes. Because a finding of actual, rather than constructive, use or possession was required for the reclassification of the kidnapping offense and the imposition of the minimum mandatory sentences, we must reverse Thompson’s sentences. See Henry, 834 So.2d at 407; Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002); Toro, 691 So.2d at 577.

Second, in State v. Tripp, 642 So.2d 728, 730 (Fla.1994), the Florida Supreme Court addressed a situation involving a defendant who was found guilty of the “charges made against him in the Information.” Tripp had been charged with using a weapon during the commission of an attempted first-degree murder. Despite the reference to a weapon in the information, the supreme court concluded that the jury’s finding was insufficient to support reclassification of Tripp’s attempted first-degree murder conviction to a life felony. The court noted that “[t]he special verdict form — not allegations in an information— indicates when a jury finds a weapon has been used.” Id.; see also Harvey v. State, 865 So.2d 518, 2003 WL 22681373 (Fla. 2d DCA Nov.14, 2003); Orjales, 758 So.2d at 1159.

Accordingly, we reverse Thompson’s sentences and remand for resentencing consistent with this opinion.

Reversed and remanded.

CASANUEVA and SALCINES, JJ., Concur.


author: 1, CALOGERO, Chief Justice

text:
    FRATERNAL ORDER OF POLICE CRESCENT CITY LODGE NO. 2, William Roth, William Patin, Ronald Kennedy, Ira Austin, Sr., John Graham and Patricia Childress v. The CITY OF NEW ORLEANS, The City Civil Service Commission of New Orleans, and the New Orleans Police Department.
    No. 2003-C-1216.
    Supreme Court of Louisiana.
    Oct. 3, 2003.
   In re New Orleans City of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, Nos. 80-7924; to the Court of Appeal, Fourth Circuit, No. 2001-CA-0052.

11 Writ denied.

JOHNSON, J., recused.

CALOGERO, C.J., dissents with reasons.

1, CALOGERO, Chief Justice

dissents from writ denial and assigns reasons:

This writ application involves a claim by plaintiffs, Fraternal Order of Police Crescent City Lodge No. 2 and others (hereinafter referred to collectively as “FOP”), against defendants, City of New Orleans, the City Civil Service Commission of New Orleans, and the New Orleans Police Department (hereinafter referred to collectively as “City”), in which FOP seeks a judgment ordering the City to pay New Orleans policemen additional wages allegedly due under a 1928 amendment to La. Const. art. XIV, § 25 (1921). That amendment gave the City the authority to levy a separate property tax for the following dual purposes: (1) to create a double platoon system in the city fire department and to create a triple platoon system in the city police department, and (2) to provide a “pay increase” to city firefighters and police officers. The provision specifically required that .5 mill of the three mill tax be used exclusively for the purpose of providing a pay increase to the city’s police officers. FOP claims that since 1971 the City has failed to use the requisite portion of the tax proceeds for that purpose.

The district court entered summary judgment in favor of FOP and cast the City in judgment for more than $3 million for amounts it found due for the years 1980 through 1994; the court of appeal affirmed. The City seeks writs in this court, asserting that FOP has failed to carry its burden of proving entitlement to summary judgment. Because, for the reasons more fully explained below, I agree with the City’s arguments in that regard, I dissent from the majority’s decision to deny the City’s writ application. I would grant the writ, and bring this important case up to this court for complete review. Alternatively, I would enter a memorandum decision reversing the summary judgment and remand for a full trial on the merits.

My argument set forth below that FOP has failed to carry its burden of proving that it is entitled to judgment as a matter of law is, it seems to me, quite sound. One might therefore wonder why the majority would deny this writ application involving an arguably incorrect judgment against a public defendant in excess of $3 million (in a summary judgment no less, and without this court granting a writ to examine the issue more closely), with the possibility of another comparable, significant award when the district court hereafter considers damages arising after 1994. I believe that the votes to deny by at least some of the justices were prompted by their belief that, in the absence of an assignment of error or argument in the supporting briefs by the City treating or urging the argument recited hereinafter, this court should not, or may not, supply arguments for the City.

However, the fact that the parties have failed to raise a particular argument does not prevent this court from considering that argument in the interests of justice and in pursuit of its obligation to apply the law correctly. La.Code of Civ. Proc. art. 2164 requires appellate courts to “render any judgment which is just, legal and proper upon the record on appeal.” Official Revision Comment (a) to that article states, in pertinent part, as follows:

The purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal .point or theory was made, argued, or passed on by the court below.

Citing Huber, The Theory of the Case in Louisiana, 24 Tul. L.Rev. 66 (1949). This court has previously cited the above comment on multiple occasions. See Georgia Gulf Corp. v. Board of Ethics for Public Employees, 96-1907, p. 5 (La.5/9/97), 694 So.2d 173,176; Tugwell v. State Farm Ins. Co. 609 So.2d 195, 197 (La.1992); Hibernia Nat. Bank of New Orleans v. Bolleter, 390 So.2d 842, 844 (La.1980).

Thus, the fact that the City did not raise this issue in its writ application or brief in support is irrelevant, because FOP had the burden, not only to show that the facts are not in dispute, but also to show that the law entitles them to their requested relief. What we have in this case is a summary judgment in favor of FOP, and this court’s only role is to perform its own de novo review of the evidence and the law to determine whether FOP proved that summary judgment should be granted in its favor both because no genuine issues of material fact exist. and because FOP is entitled to judgment as a matter of law. As shown below, the law in this case simply does not support the judgment in favor of FOP.

Under the provisions of La.Code of Civ. Proc. art. 966, a party seeking summary judgment bears the burden of .proving both that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Although I agree with the lower courts and the majority that FOP bore its burden of showing that no genuine issues of material fact exist, I believe that FOP has failed to carry its burden of proving that it is entitled to judgment as a matter of law.

In my opinion, after the 1974 Louisiana Constitution was adopted, no valid law or Constitutional authority has existed to support FOP’s claims. The portion of La. Const, art. XIV, § 25 (1921) that requires that .5 mill of the tax authorized therein “shall be used exclusively for the purpose of an increase in pay of officers and men in the Police Department” never, became statutory upon the adoption of the 1974 Louisiana Constitution. That provision was included in the 1974 Constitution only as a part of La. Const. art. XIV, § 16 (1974), entitled “Provisions of 1921 Constitution Made Statutory.” The preamble to subsection (a) of that article expressly states that the included provisions would continue as statutes “[sjubject to change by law or as otherwise provided in this constitution, and except as any of them conflicts with this constitution.” (Emphasis added.) I am inclined to believe that, to the extent La. Const. art. XIV, § 25 (1920) required that one half of one mill of the authorized tax be used for police pay increases, it conflicted, from the outset of the adoption of the 1974 Constitution, with La. Const. art. X, § 10(A)(1) (1974), which vests civil service commissions with the authority to “adopt a uniform pay and classification plan” for all classified employees, including police officers.

My belief in this regard is supported by other provisions of the 1974 Constitution, as well as the debates of the delegates to the Constitutional Convention. In addition to the clear language in La. Const. art. XIV, § 16(A) (1974) that the | provisions listed therein were to be made statutory only to the extent they did not conflict with other provisions of the Constitution, La. Const. art. XIV, § 17 and 28 (1974) clearly reflect the intent that conflicting provisions would cease to have any effect. Those provisions state as follows:

Section 17. Provisions of Constitution of 1921 Repealed
Section 17. Except to the extent provided in this Article and except as retained in Articles I through XIII of this constitution, the provisions of the Constitution of 1921 are repealed.
Section 18. Existing Laws
Section 18. (A) Retention. Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution shall remain in effect until altered or repealed or until they expire by their own limitation.
(B) Expiration of Conflicting Law. Laws which are in conflict with the constitution shall cease upon its effective date.

(Emphasis added.)Also of particular interest to the issue discussed herein is a lengthy exchange set forth in the footnote below among delegates to the 1974 Constitutional Convention, discussing the fact that the provisions listed in La. Const. art. XIV, § 16 (1974) might not be Constitutional, in whole or in part. In fact, it appears from the conversation recorded in the footnote that the delegates to the Constitutional Convention may have specifically chosen the provisions ostensibly made statutory by La. Const, art. XIV, § 16, at least partially because of questions concerning their constitutionality under the 1974 Constitution. (This concern was no doubt in addition to the suggestion that some, or all, of the provisions were of local, rather than state-wide, concern, and certainly pay raises to the New Orleans police qualify under both these concerns.)

If the provision on which the FOP bases its recovery is no longer a valid provision of Louisiana law or if it is only statutory and conflicts with the constitutional provision concerning the exclusive authority of the civil service commission to establish pay plans for classified employees, and is thus either not effective or unconstitutional, it becomes apparent that FOP is not entitled to summary judgment because it has failed to show that it is entitled to its judgment as a matter of law. Accordingly, I dissent from the writ denial. I would grant the writ and review the legal basis of the claims made by FOP, or enter a judgment summarily reversing the summary judgment and remanding to the district court for trial on the merits.

      . Also named as plaintiffs were William Roth, William Patin, Ronald Kennedy, Ira Austin, Sr., John Graham and Patricia Childress.

      . Article XIV of the 1974 is entitled “Transitional Matters.”

      . My concerns about the continued validity of the provision apply only to the portions requiring pay increases for classified employees, which conflict with the exclusive authority of the Civil Service Commission to adopt pay plans. The remaining two mills of the property tax do not conflict with any other provision of the 1974 Constitution and are therefore valid.

      . Since the Civil Service Commission did not exist in 1928 when La. Const, art. XIV, § 25 (1921) was originally adopted. Further, I would note that police salaries were much lower at the time the provision was adopted in 1928 than they were when the 1974 Constitution was adopted. The Civil Service Commission of the City of New Orleans has had exclusive authority over pay for police officers since its creation in 1952.

      . MR. JENKINS
      Mr. Conroy, ... in general with regard to all of these points, is it not true that there has been little or no examination of the constitutionality under the new constitution of these proposed statutes?

        * * * * *
      MR. CONROY
      Mr. Jenkins, I wouldn’t be in a position to answer that question....
      MR. JENKINS
      My point is that the listing of these sections here is not to be interpreted by the courts; it is not our intent to vouch for their constitutionality under the new constitution whatsoever.

      MR. CONROY
      No, no. As a matter of fact, the Section 1 that's been adopted I think clarifies the intent with regard to these sections. I think, Mr. Jenkins, in further response to that question I would have to refer to another one of the amendments in this series which is designed to ... more or less make it clear that a great deal may still have to be done with regard to straightening out the statutes, straightening these parts of the constitution that sire carried into the statutes and reviewing them for possible deletions, and additions, and so forth. These are the ones that stood out based on the reports back from the substantive committees. All that this committee, as I would understand it from talking to the chairman of the committee, the only function of this committee was to get data fed into it from the substantive committees and then to compile this chart; then, we compile it and review it as we've done today.
      * * * * *
      MR. JENKINS
      So, I want to further ask you, for the record, no court should interpret the inclusion of this document of these old provision of the constitution as any statement on our behalf that we believe these to be consistent with the new constitution.

      MR. CONROY
      I think that’s correct. As a matter of fact, I think that anybody examining these would have to take them with the full understanding that we have put them in a section where we've said to the extent they are not consistent, they won’t be effective. I think that’s the whole purpose of the format that this committee has used.
      (Emphasis added.)


text:
    STATE of Louisiana v. Danny ROGERS.
    No. 2003-K-1203.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   PER CURIAM.

Granted. The court of appeal’s decision is vacated; the trial court’s habitual offender sentence of 20 years imprisonment at hard labor is reinstated, and this case is remanded to the Fourth Circuit for consideration of defendant’s single assignment of error challenging the trial court’s denial of his motion to quash the habitual offender bill.

Defendant made no allegation on appeal that the trial court imposed a constitutionally excessive sentence when it sentenced him to the mandatory minimum term of imprisonment provided by La. R.S. 15:529.1(A)(l)(c)(l) for fourth felony offenders. In these circumstances, because “an appellate court has no power to review sua sponte a sentence for exeessiveness,” State v. Johnson, 96-3041, p. 5 (La.3/4/98), 709 So.2d 679, 681, the Fourth Circuit had no basis to vacate defendant’s sentence and to remand the case to the trial court to consider whether the mandatory minimum term is excessive as applied to this particular offender. State v. Dorthey, 623 So.2d 1276 (La.1993); see also State v. Johnson, 97—1906 (La.3/4/98), 709 So.2d 672. A remand for resentencing on a fuller statement of reasons is necessary only when there appears “to be a substantial possibility that the defendant’s complaints of an excessive sentence [have] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982)(emphasis added).

JOHNSON, J., would deny the writ.


author: WEIMER, J., CALOGERO, Chief Justice

text:
    STATE of Louisiana v. Christine BOATNER. State of Louisiana v. Christopher Boatner.
    Nos. 2003-K-1162, 2003-K-1170.
    Supreme Court of Louisiana.
    Nov. 14, 2003.
   In re Boatner, Christine et al; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, Nos. 413-300; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1814.

Writ denied.

CALOGERO, C.J., dissents from majority’s denial of the writ and will assign reasons.

WEIMER, J.,

would grant, but only as to the issue of whether the state abused its nolle prosequi authority when it dismissed the charges after the trial court denied the state’s request for a continuance. See ray dissent in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198. As to all other issues, I would deny.

CALOGERO, Chief Justice

dissents and assigns reasons.

I dissent from the majority’s decision to deny the defendant’s writ application in this case. As expressed in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, determination of whether a district attorney abused his power to enter a nolle prosequi then reinstate charges in response to a district court’s denial of his motion for continuance should be based on three primary considerations: (1) the discretion of the district court, (2) the grounds stated by the State for seeking the continuance, and (3) prejudice to the defendant.

Concerning the first factor listed above, the district court’s decision to grant the defendant’s motion to quash is obviously based on its finding that the State abused its power to enter a nolle prosequi and to reinstate charges when it denied his motion to continue. The district court’s exercise of discretion to grant the motion to quash is entitled to great deference, and should be upheld in the absence of evidence that he abused that discretion.

No such abuse is present in this case. Concerning the second factor listed above, the grounds for continuance stated by the State were not so compelling as to automatically entitle the State to a continuance. The documents presented to this court indicate that the State’s motion to continue was based on its desire to analyze handwriting exemplars taken from the defendant. However, the documents also indicate that the State failed to show that it was unable to subpoena and analyze the handwriting exemplars before the scheduled trial date.

Concerning the third factor, the defendant’s application does not demonstrate that he suffered actual prejudice as a result of the district attorney’s actions. Nevertheless, the State has also failed to show that the district court’s decision constituted an abuse of his great discretion. Accordingly, I would grant the defendant’s writ application and reinstate the district court’s decision to quash the defendant’s indictment.


text:
    STATE of Louisiana v. Philip GUIDRY et al.
    No. 2003-KK-1944.
    Supreme Court of Louisiana.
    Nov. 21, 2003.
   PER CURIAM.

Granted. This case is remanded to the court of appeal for reconsideration and written treatment in light of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See United States v. Richardson, 943 F.2d 547, 550 (5th Cir.1991); United States v. Turner, 926 F.2d 883, 886 (9th Cir.1991); United States v. Rome, 809 F.2d 665, 669-70 (10th Cir.1987). See also State v. Matthieu, 506 So.2d 1209, 1212 (La.1987) (“‘La.C.Cr.P. Art. 703 permits suppression only of evidence obtained “by an unconstitutional search or seizure.” It was not intended to permit suppression of evidence seized by a warrant ‘illegal’ merely because technically contrary to law, unless the seizure is viola-tive of fundamental due process concepts.’ ’’(quoting State v. Bienvenu, 260 La. 1023, n. 1, 258 So.2d 72, 74 (1972)).


text:
    In re Bryan Christopher HURD.
    No. 2003-OB-3126.
    Supreme Court of Louisiana.
    Dec. 9, 2003.
   ORDER

Considering the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Bryan Christopher Hurd, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Bryan Christopher Hurd, Louisiana Bar Roll number 22451, for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1.

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

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


text:
    In re Patrick F. McGREW.
    No. 2003-B-3225.
    Supreme Court of Louisiana.
    Dec. 10, 2003.
   ORDER

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

IT IS ORDERED that respondent, Patrick F. McGrew, Louisiana Bar Roll number 9335, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    Alvie MAGEE v. SOUTHERN WOOD, INC. (and/or Their Insured, American Casualty Company,) (and/or CNA Insurance, or Their Adjuster,) James J. Kokemor, Honorable Robert H. Morrison, III and Honorable Douglas M. Gonzales.
    No. 2003-C-2673.
    Supreme Court of Louisiana.
    Dec. 10, 2003.
   ORDER

IT IS ORDERED that the application filed by relator be returned to him. See Supreme Court Rule VII, § 7.

IT IS FURTHER ORDERED that a copy of this order be sent to the Office of Disciplinary Counsel.

/s/Catherine D. Kimball Justice, Supreme Court of Louisiana

WEIMER, J. recused.


text:
    In re Tedrick K. KNIGHTSHEAD.
    No. 2003-OB-1093.
    Supreme Court of Louisiana.
    Dec. 12, 2003.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Tedrick K. Knightshead, applied to take the July 2002 Louisiana bar examination. By letter dated June 18, 2002, the Committee on Bar Admissions (“Committee”) notified petitioner that he would not be certified for admission to the practice of law, principally due to his failure to provide an accurate response to a question on the bar exam application. On July 12, 2002, this court permitted petitioner to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply for the appointment of a commissioner to take character and fitness evidence. In re: Knightshead, 02-1888 (La.7/12/02), 820 So.2d 566. Petitioner successfully passed the essay portion of the February 2003 bar exam. We thereafter appointed a commissioner to take evidence and report to this court whether petitioner possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel (“ODC”) to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing on August 12, 2003, pursuant to Supreme Court Rule XVII, § 9(B). The commissioner received documentary evidence and heard testimony given by petitioner and his witnesses. In addition, the ODC introduced evidence and testimony relating to a 2002 altercation involving petitioner and his former girlfriend. 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 petitioner “presented sufficient and satisfactory evidence that he has the requisite good moral character and fitness to be licensed to practice law in the State of Louisiana.” Neither petitioner nor the Committee objected to the commissioner’s recommendation.

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

1. The term of this conditional admission shall be for two years from the date of admission.
2. During the period of this conditional admission, petitioner shall participate in a counseling program approved by the Office of Disciplinary Counsel.
3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in the program are forwarded to the Office of Disciplinary Counsel.
4. Within thirty days of the conclusion of the program, a final report of petitioner’s progress and participation therein shall be forwarded to the Office of Disciplinary Counsel.
5. Within thirty days prior to the expiration of the conditional admission, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended.
6. Petitioner shall cooperate with the Office of Disciplinary Counsel, and shall comply with any and all requirements imposed upon him by the Office of Disciplinary Counsel.

Should petitioner fail to make a good faith effort to satisfy these conditions, 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.

VICTORY, J., dissents and would deny admission.

      . The question inquires about disciplinary action by a college or university, and petitioner gave a negative response to the question. However, a disciplinary proceeding was instituted against petitioner in 1996 while he was an undergraduate student at Louisiana State University.


text:
    In re John F. McKAY.
    No. 2003-B-3093.
    Supreme Court of Louisiana.
    Dec. 12, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John Franklin McKay, Louisiana Bar Roll number 9361, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend one full day of Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Charles R. ROWE.
    No. 2003-OB-3393.
    Supreme Court of Louisiana.
    Dec. 19, 2003.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, Charles R. Rowe, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Rowe, 01-1642 (La.9/21/01), 794 So.2d 774, petitioner failed to supervise a non-lawyer assistant and subsequently made misleading statements in connection with an FBI investigation of the activities of the non-lawyer assistant, resulting in petitioner’s June 2000 federal conviction for making false statements to a federal agent, in violation of 18 U.S.C. § 1001. Following petitioner’s guilty plea, he was placed on interim suspension. In re: Rowe, 00-2312 (La.8/24/00), 768 So.2d 593. Thereafter, and prior to the institution of formal charges by the Office of Disciplinary Counsel (“ODC”), petitioner filed a petition for consent discipline. Petitioner admitted that he failed to supervise his non-lawyer assistant and was convicted of a serious crime. For his misconduct, petitioner proposed that he be suspended from the practice of law for three years. The ODC concurred in the proposed discipline, and the disciplinary board recommended the petition for consent discipline be accepted. Based on the mitigating factors present, including petitioner’s payment of full restitution, this court accepted the petition for consent discipline and suspended petitioner from the practice of law for three years, retroactive to his August 24, 2000 interim suspension.

Petitioner subsequently filed an application for reinstatement to the practice of law, asserting that he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). After receiving an objection to petitioner’s reinstatement from a former client defrauded by the non-lawyer assistant, the ODC filed an objection to petitioner’s application. Accordingly, pursuant to Supreme Court Rule XIX, § 24(F) and (G), the matter was referred for a formal hearing before a hearing committee.

After considering the evidence presented, the hearing committee recommended that petitioner be reinstated to the practice of law, subject to a one-year period of supervised probation. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

Thereafter, the disciplinary board adopted the factual findings of the hearing committee, and agreed that petitioner proved by clear and convincing evidence that he satisfies the criteria for reinstatement. Accordingly, the board recommended to this court that petitioner be reinstated to the practice of law, subject to a one-year period of supervised probation. Neither petitioner nor the ODC objected to the disciplinary board’s recommendation.

After considering the record in its entirety, we will adopt the disciplinary board’s recommendation. Petitioner shall be reinstated to the practice of law, subject to a one-year period of probation. Should petitioner commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Charles R. Rowe, Louisiana Bar Roll number 11500, be immediately reinstated to the practice of law in Louisiana, subject to a probationary period of one year. Should petitioner commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate. All costs of these proceedings are assessed against petitioner.


text:
    Shaunn Caillier MCCORVEY v. Derriel C. MCCORVEY.
    No. 2003-C-3346.
    Supreme Court of Louisiana.
    Dec. 23, 2003.
   In re McCorvey, Derriel C.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 02-C-2619-A; to the Court of Appeal, Third Circuit, No. 03-953.

Denied.

VICTORY, J., would grant the writ.


text:
    Christine McGrail FERGUSON v. Kevin LACOUR.
    No. 2003-CC-3527.
    Supreme Court of Louisiana.
    Dec. 30, 2003.
   In re Ferguson, Christine McGrail;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 593-832; to the Court of Appeal, Fifth Circuit, No. 03-C-1440.

Stay denied; writ denied.


text:
    Norma WESTBROOK v. Lance LAMANTIA, Allstate Insurance Company and Cincinnati Insurance Company.
    No. 2003-CC-2692.
    Supreme Court of Louisiana.
    Jan. 7, 2004.
   In re Cincinnati Insurance Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, Nos. 561-336, 561-917; to the Court of Appeal, Fifth Circuit, No. 03-C-913.

Granted. There are genuine issues of material fact as to whether Mr. Lamantia’s use of the vehicle was within the scope of the employer’s permission. These issues must be determined by the trier of fact after a trial. Accordingly, the trial court’s grant of summary judgment is reversed and the case is remanded for further proceedings.

KIMBALL, J., would deny the writ.

KNOLL, J., would deny the writ.


text:
    A.O. SMITH CORPORATION, et al. v. PERFECTION CORPORATION, et al.
    No. 2003-CC-3550.
    Supreme Court of Louisiana.
    Jan. 7, 2004.
   In re Perfection Corporation et al.; American Meter Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 99-15646; to the Court of Appeal, Fourth Circuit, No. 2003-C-2034.

Stay denied, writ denied.