author: DAVIS, Judge. STRINGER, J.,

text:
    Ronald J. TIEDE and Commercial Insurance Specialists, Inc., Appellants, v. Tony SATTERFIELD and Reno Satterfield, his wife, Appellees.
    No. 2D02-5566.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.

      Michael S. Rywant and Burke G. Lopez of Rywant, Alvarez, Jones, Russo & Guy-ton, P.A., Tampa, for Appellants.

      Raymond N. Seaford and Ken Ward of Law Office of Ken Ward, P.A., Tampa, for Appellees.
   DAVIS, Judge.

Ronald J. Tiede and his employer, Commercial Insurance Specialists, Inc. (collectively “Appellants”), challenge the final judgment of the trial court granting Tony and Reno Satterfield attorney’s fees and applying a contingency fee risk multiplier. The underlying cause of action stemmed from an incident in which Tony Satterfield sustained certain injuries when his van was struck from the rear by a vehicle driven by Tiede. Satterfield sued Tiede and Commercial, alleging that Commercial was liable as Tiede was driving within the scope of his employment. Additionally, Reno Satterfield, Tony’s wife, filed a claim for loss of consortium.

During the litigation, the Satterfields made a joint offer to settle the case with Appellants for $463,000. However, the offer of judgment did not differentiate between the amount applicable to the consortium claim and the amount allocated for the injuries Tony Satterfield sustained. Appellants did not accept the offer, and the matter went to trial. At the conclusion of trial, the jury awarded the Satterfields damages totaling $1,300,797.36.

Based upon section 768.79, Florida Statutes (2000), the offer of judgment statute, the Satterfields moved for attorney’s fees and costs. At the same time, Appellants filed their notice of appeal. The trial court found that the Satterfields were entitled to their fees, but it delayed determining the amount until the conclusion of the pending appeal. In 2001, this court affirmed the jury’s verdict and the trial court’s judgment amount. See Tiede v. Satterfield, 785 So.2d 490 (Fla. 2d DCA 2001) (table decision). In that appeal, the Satterfields moved for appellate attorney’s fees, again basing their claim on the offer of judgment statute. Neither Tiede nor Commercial filed an objection or response to that motion, and this court granted the motion for fees in an amount to be determined by the trial court.

Upon this court’s issuance of the mandate, the trial court undertook the task of determining the amount of fees. The Sat-terfields filed a motion with the trial court, seeking the application of a contingency fee risk multiplier, which the trial court granted. Ultimately, the trial court applied a multiplier of two and awarded attorney’s fees in the amount of $327,011.92 after offsetting the gross award by sums previously paid by Appellants. It is this final judgment awarding attorney’s fees that is now being appealed.

Appellants raise two issues on appeal. First, they argue that the trial court erred in finding that the Satterfields were entitled to fees based on the offer of judgment statute. The Appellants suggest that since the Satterfields’ offer was a single amount that would have settled both the personal injury claim and the loss of consortium claim, the offer was insufficient under section 768.79. Secondly, Appellants challenge the use of the contingency risk multiplier in determining the amount of the fees.

The Satterfields argue that by awarding them attorney’s fees, this court determined that the Satterfields’ offer of judgment was sufficient and that this determination is now the law of the case. Accordingly, the Satterfields maintain that this court must affirm the trial court’s determination of entitlement as the trial court was bound to follow the law of the case established by this court.

Under the law of the case doctrine, all questions of law decided by an appellate court become the law of the case and, except in extraordinary circumstances, must be followed in subsequent proceedings in both the trial court and the appellate court. Brunner Enters., Inc. v. Dep’t of Revenue, 452 So.2d 550 (Fla.1984). To determine whether the law of the case doctrine applies to this set of facts we first must address whether this court, by granting the Satterfields’ unopposed motion for appellate attorney’s fees, which was based on the offer of judgment, established the sufficiency of the offer as the law of the case.

In Silva v. U.S. Security Insurance Co., 734 So.2d 429 (Fla. 3d DCA 1999), the Third District addressed this issue in a factual setting similar to the one before us now. In that case, on a prior appeal (Silva I), the appellate court reversed a summary judgment that had been entered in favor of Silva and remanded for entry of final judgment in favor of U.S. Security. As a part of that initial appeal, the appellate court granted U.S. Security’s unopposed motion for appellate attorney’s fees, which was based on an offer of judgment. On remand, U.S. Security moved for trial court attorney’s fees as well as a determination of the amount of appellate attorney’s fees. Silva challenged the applicability of the offer of judgment statute to PIP cases; however, the trial court rejected the argument and awarded the fees. On appeal of the fee award, the Third District concluded that

where Silva failed to raise the issue now posed on this appeal during the prior appeal of Silva I, this court’s prior order and mandate awarding U.S. Security its fees pursuant to the offer of judgment statute necessarily became the law of this case so as to foreclose any relitigation of this issue on remand.

Id. at 430 (citations omitted). Thus, our prior award here of appellate attorney’s fees to the Satterfields established as law of the case the sufficiency of the offer of judgment.

However, under exceptional circumstances, the law of the ease may be altered.

[A]n appellate court should reconsider a point of law previously decided on a former appeal only as a matter of grace, and not as a matter of right; and ... an exception to the general rule binding the parties to “the law of the case” at the retrial and at all subsequent proceedings should not be made except in unusual circumstances and for the most cogent reasons — and always, of course, only where “manifest injustice” will result from a strict and rigid adherence to the rule.

Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla.1965) (quoting Beverly Beach Props., Inc. v. Nelson, 68 So.2d 604, 608 (Fla.1953)). The Florida Supreme Court went on to say that an example of when an exception to the general rule could be considered is when an intervening decision is issued by a higher court that is contrary to the decision reached in the prior appeal. Id.

Here, this court granted the Satter-fields’ motion for appellate attorney’s fees on February 23, 2001. However, the Florida Supreme Court subsequently determined that for an offer from multiple plaintiffs to invoke the provisions of the offer of judgment statute, the offer must apportion the total amount of the offer among the plaintiffs to allow the offeree the benefit of considering settlement with the individual offerors. Willis Shaw Express v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). This opinion directly conflicts with the earlier decision by this court that the joint offer was sufficient and, accordingly, gives this court the opportunity to review this issue.

However, to alter the law of the case, we must look to see if the “strict adherence to the rule would result in ‘manifest injustice.’ ” Brunner Enters., Inc., 452 So.2d at 552-53 (quoting Strazzulla, 177 So.2d at 4). The issue of the sufficiency of the Satterfields’ offer of judgment has never been subjected to a full review. At the time the trial court made its initial determination of entitlement based on the offer, this court had not issued an opinion regarding this issue. When this court previously granted the award of attorney’s fees based on the offer of judgment statute, the issue was not litigated, and in fact, the decisions that invalidated such a joint offer were not issued until after that motion was granted. However, now that the matter is before us, the law of the State of Florida has been clearly established. Inasmuch as the trial court’s initial order of entitlement was never subjected to appellate review, and in fact was not ripe for review until now, and considering the fact that the law of the case was determined in a cursory manner without the benefit of debate or consideration, it would be unjust to deprive the Appellants of appellate review of this issue. To do so would be to award fees on a basis that has been specifically rejected by the Florida Supreme Court. See Willis Shaw Express, 849 So.2d 276. We conclude that an exercise of our jurisdiction to alter the law of the case and apply the Willis Shaw Express ruling is justified in this case. Accordingly, we reverse the trial court’s finding that the Satterfields are entitled to attorney’s fees based on the offer of judgment statute.

Because we reverse the finding of entitlement, we need not address the issue of the application of the contingency risk multiplier.

Reversed.

FULMER J., Concurs.

STRINGER, J., Concurs in result only with opinion.

STRINGER, J.,

Concurring in result only.

Although I agree that the order awarding attorney’s fees under the offer of judgment statute should be reversed, I do not agree that our prior order awarding appellate attorney’s fees established as law of the case the sufficiency of the offer of judgment. When Appellants failed to object to the Satterfields’ motion for appellate attorney’s fees pursuant to the offer of judgment, Appellants waived any further challenge to appellate attorney’s fees. However, I believe that this court’s determination of the Satterfields’ entitlement to appellate attorney’s fees did not constitute a ruling on the merits of the offer of judgment that would mandate the award of trial attorney’s fees.

At the time the Satterfields filed their motion for appellate attorney’s fees, the trial court had already determined the issue of the Satterfields’ entitlement to attorney’s fees pursuant to the offer of judgment. The trial court had not yet entered an appealable final judgment on attorney’s fees because' the issue of the amount of fees remained pending. Thus, the issue of the propriety of the trial court’s ruling on entitlement was not before this court at the time it considered the Satterfields’ motion for appellate attorney’s fees in the direct appeal of the jury verdict.

When this court ruled on the Satter-fields’ motion for appellate attorney’s fees, it necessarily presumed the propriety of the offer of judgment based on the trial court’s ruling on entitlement and the absence of any objection to the motion. If Appellants had objected to the Satter-fields’ motion for appellate attorney’s fees, or if the issue of entitlement under the offer of judgment had not yet been decided by the trial court, this court would have granted the motion contingent upon a determination of entitlement below. Instead, this court granted the fees unconditionally.

Without question, Appellants’ failure to object to the Satterfields’ motion for appellate attorney’s fees waived any later objection to this court’s order awarding appellate attorney’s fees. However, this court’s order awarding appellate attorney’s fees did not become law of the case for purposes of trial attorney’s fees because this court did not decide, either explicitly or implicitly, the issue of the sufficiency of the offer of judgment under the statute. See Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101 (Fla.2001) (explaining the scope of the law of the case doctrine).

I believe that Silva v. U.S. Security Insurance Co., 734 So.2d 429 (Fla. 3d DCA 1999), is distinguishable because the trial court in Silva had not determined entitlement to attorney’s fees prior to the appeal. Furthermore, I am not convinced that Silva is correct even on its facts. The issue of entitlement to attorney’s fees pursuant to the offer of judgment statute presents factual issues that are not properly determined by an appellate court. Thus, when an appellate court considers a motion for attorney’s fees pursuant to the offer of judgment statute, it can only, at best, assume the validity of the offer of judgment. It is for this reason that appellate courts generally grant such motions contingent upon a determination of entitlement in the trial court.

Barrero v. Ocean Bank, 729 So.2d 412 (Fla. 3d DCA 1999), as relied upon by Silva, does not support the determination that a district court’s ruling on appellate attorney’s fees establishes as law of the case the sufficiency of the offer of judgment. The Barrero court simply held that a party waives any further challenge to appellate attorney’s fees by failing to object to the opposing party’s motion for appellate attorney’s fees in the district court. Id. at 414. The Barrero court did not address the issue of whether the award of appellate attorney’s fees pursuant to an offer of judgment established as law of the case the sufficiency of the offer so as to mandate the award of trial attorney’s fees.

      . Willis Shaw Express resolved the conflict between this court's opinion in Allstate Insur-anee Co. v. Materiale, 787 So.2d 173 (Fla. 2d DCA 2001), and the opinions in Flight

        Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999), and Spruce Creek Development Co. of Ocala, Inc. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999). Although the Materiale decision determined that such an offer was insufficient, the opinion was not issued until May 11, 2001, after this court awarded appellate attorney’s fees to the Satterfields.

      . In reversing the trial court's order, we observe that the trial court was not in error to follow the law of the case based on our granting of appellate attorney's fees. The trial court does not have the authority to change the law of the case as this opinion has done. See Brunner Enters., Inc., 452 So.2d at 552 (“ TT]he judgment of an appellate court, where it issues a mandate, is a final judgment in the cause and compliance therewith by the lower court is a purely ministerial act.’ O.P. Corp. v. Village of North Palm Beach, 302 So.2d 130, 131 (Fla.1974).”).


source: Caselaw Access Project

author: SALCINES, Judge.

license: Public Domain

text:
    Lois L. SKONE n/k/a Lois L. Rude, Appellant, v. E. Terry SKONE, Appellee.
    No. 2D03-3144.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.

      Mark A. Sessums of Frost Tamayo Ses-sums & Aranda, P.A., Bartow, for Appellant.
    Mark V. Silverio and Cynthia Byrne Hall of Silverio & Hall, P.A., Naples, for Appellee.
   SALCINES, Judge.

Lois L. Skone n/k/a Lois L. Rude, the Former Wife, appeals the trial court’s division of property in this dissolution of marriage case. We affirm in part and reverse in part.

This complicated dissolution proceeding was fully documented and aptly tried by trial counsel for both parties. The appellate briefs presented to this court were well prepared and oral argument by both counsel was professional and informative.

E. Terry Skone, the Former Husband, has conceded that the portion of the final judgment of dissolution dealing with the Merrill Lynch account and the John Hancock funds must be reversed. The Former Wife asserted that nothing in the record supported the valuation of the Merrill Lynch account at $483,500 and the John Hancock funds at $140,000. The Former Husband explained that the trial court may have been confused by an exhibit reflecting a margin value rather than a net value of these two items.

Accordingly, we reverse that portion of the final judgment which set the values of the Merrill Lynch account and the John Hancock funds. On remand, the trial court shall determine the proper value of these assets in accordance with section 518.58(1), Minnesota Statutes (2002).

In all other respects, including the other aspects of the equitable distribution, we affirm the final judgment of dissolution.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, J. and DANAHY, PAUL W., Senior Judge, Concur.


author: ALTENBERND, Chief Judge.

text:
    Jim Lee WADE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5303.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.
   ALTENBERND, Chief Judge.

Jim Lee Wade appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for reconsideration of this motion and for resolution of an amended motion that is pending in the trial court.

Mr. Wade was convicted of fifty-seven offenses relating to child pornography in 1997. On direct appeal, this court affirmed fifty-five of those offenses and remanded for resentencing. Wade v. State, 751 So .2d 669 (Fla. 2d DCA 2000). The supreme court initially accepted jurisdiction on his case and then dismissed review in 2001. Wade v. State, 760 So.2d 949 (Fla.2000); Wade v. State, 779 So.2d 266 (Fla.2001).

Mr. Wade filed this timely postconviction motion in January 2003, alleging numerous grounds of ineffective assistance of trial counsel. The trial court entered an order disposing of some of the grounds on June 5, 2003, and a final order disposing of the remaining grounds on October 21, 2003. At the time the trial court entered the final order, it did not realize that Mr. Wade had filed a motion to amend his pleading a few days earlier. During the pendency of this appeal, the trial court has entered an order staying its ruling on that motion until the conclusion of this appeal.

The two orders resolving this motion state that the trial court has reviewed the case file prior to denying the rule 3.850 motion. Unfortunately, the trial court attached only one page from the record to either order. This court’s review is further hampered by the fact that the order of June 5 that was transmitted to this court is missing page two. Finally, the June order was signed by Judge McCarthy and the final order was signed by Judge Alcott. On appeal, Mr. Wade argues for the first time that he attempted to retain Judge Alcott as his lawyer when these charges were first filed and that he would have attempted to recuse Judge Alcott if he had realized the case was assigned to him.

All things considered, it seems prudent to reverse and remand to permit the trial court to reconsider the original motion as well as the amendment to the motion and to permit the trial court to rule upon Mr. Wade’s motion to recuse Judge Alcott.

Reversed and remanded.

COVINGTON and VILLANTI, JJ., Concur.


author: POLEN, J. KLEIN, J.,

text:
    Claud James ARMSTRONG II and Angela Denise Armstrong, Appellants, v. WAL-MART STORES, INC., and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 4D02-4312.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Rehearing Denied May 4, 2004.

      Roy W. Jordan, Jr., of Roy W. Jordan, Jr., P.A., West Palm Beach, for appellants.
    Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, Miami, for appellee State Farm Mutual Automobile Insurance Company.
   POLEN, J.

Appellants, Claud and Angela Armstrong, timely appeal a final judgment entered in favor of State Farm Mutual Automobile Insurance Company. A separate final judgment entered in favor of Wal-Mart Stores, Inc., arising from the same trial, was previously appealed and affirmed by this court. Armstrong v. Wal-Mart Stores, Inc., 848 So.2d 331 (Table)(Fla. 4th DCA 2003). The instant appeal involves only State Farm. We reverse and remand for a new trial for the reasons that follow.

In May of 1997, Claud and Angela Armstrong sued Wal-Mart, alleging that, on May 2, 1995, Claud Armstrong was struck by a stack of falling garden hoses. On June 6, 1995, a little more than a month after the Wal-Mart incident, Claud Armstrong was involved in a car accident in the course of his employment with Florida Power & Light. Due to the proximity of the two accidents, the Armstrongs alleged that the injuries could not be apportioned. The June 1995 car accident thus became the subject of a negligence claim in the suit that the Armstrongs had already brought against Wal-Mart. James Deane, the driver of the other car involved in the June 1995 accident, was uninsured. Consequently, State Farm, Armstrong’s uninsured motorist carrier, became a defendant. The Amended Complaint asserted negligence and loss of consortium claims against Wal-Mart, Deane, and State Farm.

The jury returned a verdict finding no negligence on the part of Wal-Mart that was the legal cause of injury to Claud Armstrong. The jury determined, however, that there was negligence on the part of Deane, which was the legal cause of injury to Claud Armstrong. According to the jury, Armstrong had sustained $6,901.70 in past medical expenses, but no future medical expenses, no past or future lost wages and no permanent injury. Following the denial of the Armstrongs’ motion for new trial, separate judgments were entered for Wal-Mart and State Farm. State Farm thereafter filed a motion for set-off. The trial court granted this motion, setting off the entire $6,901.70 as duplicative benefits.

The Armstrongs contend the trial court erred by prohibiting State Farm from being identified as Armstrong’s uninsured motorist carrier. At the pre-trial motion in limine, the trial court, based on our opinion in Lamz v. Geico General Insurance Co., 748 So.2d 319 (Fla. 4th DCA 1999), ruled that State Farm would be referred to only as the plaintiffs’ automobile insurance carrier. Shortly after the trial in this case, however, the Supreme Court reversed this court’s decision in Lamz, stating that the “failure to specifically identify the underin-sured carrier as such leaves the jury to speculate about the exact role of the plaintiffs carrier in the lawsuit, perpetuating the ‘charades in trials’ denounced by this Court....” Lamz v. Geico Gen. Ins. Co., 803 So.2d 593, 595 (Fla.2001). We are unpersuaded by State Farm’s argument that identifying it as a party defendant who was an insurer and was liable for the tortfeasor’s negligence adequately apprises the jury of its specific party status. Accordingly, we reverse and remand for a new trial. See Medina v. Peralta, 724 So.2d 1188 (Fla.1999).

In the interests of judicial economy at the new trial, we make the following notes. First, we find no error with the trial court’s interpretation of the parties’ stipulation regarding post-trial set-offs. State Farm may properly assert any well-pleaded claim for a set-off after the conclusion of the new trial. Next, to the extent that Dr. Rogozinski’s video deposition will be displayed to the jury, all references to Liberty Mutual Insurance Company should be redacted. Finally, as to the remaining issues, we find no error.

REVERSE and REMAND.

WARNER, J., concurs.

KLEIN, J., dissents with opinion.

KLEIN, J.,

dissenting.

I respectfully dissent because I conclude that Lamz v. Geico General Insurance Co., 808 So.2d 593 (Fla.2001), is distinguishable and does not require reversal. Lamz was decided based on Government Employees Insurance Co. v. Krawzak, 675 So.2d 115 (Fla.1996), and in order to put Lamz in perspective it is necessary to examine Krawzak.

In Krawzak the trial court precluded any reference to the UM insurer and directed that counsel for the UM insurer be referred to as co-counsel for the tortfeasor. The Florida Supreme Court held this to require a new trial, stating: “it is appropriate for a jury to be aware of the presence of a UM insurer which has been properly joined in the action against the insurer.” 675 So.2d at 117.

In Lamz, Geico was the plaintiffs UM insurer and the trial court explained the status of the parties to the jury as follows:

[I]t’s alleged in the plaintiffs’ complaint that the defendant, Marnee Heather Nichols, was the operator of the other vehicle, that Mr. Morris Leisner was the owner of the other vehicle, and the other defendant, Geico General Insurance Company, is the plaintiffs’ automotive insurance carrier, and is also joined here as a defendant.

803 So.2d at 594.

Our supreme court concluded that the above instruction was not in compliance with Krawzak and reversed, explaining:

... Moreover, the Medina, Krawzak, and Dosdourian [v. Carsten, 624 So.2d 241 (Fla.1993) ] line of cases clearly establishes the principle that the jury should be made aware of the precise identity of an uninsured or underinsured insurance carrier if it is a party at trial. The policy behind such a requirement is that full disclosure of the identity of the parties protects the integrity of the jury system and prevents charades at trial.... Identifying the insurance company as merely a plaintiffs insurer without clarifying the full capacity in which it is being sued does not make the jury fully aware of the underinsured carrier’s posture in the litigation.

803 So.2d at 595. The essence of Lamz is that the jury must be made aware of the “posture” of the UM carrier in the case. The instruction given by the trial court in Lamz did not make it clear that the UM carrier was adverse to the plaintiff.

In the present case the jury was instructed that “State Farm is responsible for the negligence of Deane [uninsured motorist] under its coverage of Armstrong.” Unlike the jury in Lamz, the jury in this case knew that State Farm would be paying the damages awarded plaintiff, and that State Farm and its lawyer were therefore adverse to the plaintiffs. The jury thus was aware of the “posture” of State Farm.

The majority has not indicated how the jury should be instructed on retrial, but I assume the majority would not have reversed if the trial court had given the same instruction, but with the insertion of “uninsured motorist,” so that the instruction read: “State Farm is responsible for the negligence of Deane under its [uninsured motorist] coverage of Armstrong.” Because the jury knew State Farm provided coverage, and was liable for the damages, this would, in my opinion, not serve any purpose.

There is an additional significant distinction between Krawzak and Lamz and the present case. In Krawzak and Lamz the tortfeasor was represented by counsel and the UM carrier was represented by different counsel. There were thus two defense lawyers putting on evidence and examining witnesses, both adverse to plaintiff, but the juries in those cases were not aware that counsel for the UM insurer was adverse to plaintiff. This opened up the possibility of the charade which our supreme court was concerned about in the cases cited in Krawzak and Lamz.

Unlike in Krawzak and Lamz, in the present case the tortfeasor was not represented by counsel. The only lawyer defending the auto accident claim was the lawyer representing State Farm and, as I indicated earlier, the court explained to the jury that State Farm was “responsible for the negligence of’ the tortfeasor. There was accordingly no possibility of a charade.

I would therefore affirm.


author: STRINGER, Judge.

text:
    In the Interest of G.D. and C.D., children, A.D. and L.D., Petitioners, v. Department of Children and Family Services, Respondent.
    No. 2D03-5261.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.

      Stephen L. Romine of Cohen, Jayson & Foster, P.A., Tampa, for Petitioners.
    Bernie McCabe, State Attorney for the Sixth Judicial Circuit, and Rene Marie Bauer, Assistant State Attorney, Clear-water, for Respondent.
   STRINGER, Judge.

A.D. and L.D., the parents, seek certio-rari review of the trial court’s interlocutory order compelling the parents to submit to mental examinations after their two young children had been sheltered because the younger child was admitted to the hospital with symptoms of shaken baby syndrome. The parents argue that the trial court departed from the essential requirements of the law in requiring the mental examinations under section 39.407(14), Florida Statutes (2003), and Florida Rule of Juvenile Procedure 8.250(b). The parents also argue that such examinations would violate their Fifth Amendment privilege against self-incrimination.

In order to merit certiorari review, a nonfinal order must cause material injury to the petitioner that cannot be remedied on direct appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). If this threshold requirement is met, then certiorari will only be granted when the order amounts to a departure from the essential requirements of the law. Id. A departure from the essential requirements of the law occurs “when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003).

This court has held that interlocutory orders that improperly require mental examinations cause material injury to the petitioner that cannot be remedied on direct appeal. Gonzalez v. State, 829 So.2d 277, 279 (Fla. 2d DCA 2002); Vo v. Bui, 680 So.2d 601, 601 (Fla. 2d DCA 1996); Gasparino v. Murphy, 352 So.2d 933, 935 (Fla. 2d DCA 1977). Thus, the parents have satisfied the threshold jurisdictional inquiry in this case. The parents allege that the trial court’s order departed from the essential requirements of the law in two respects.

First, the parents argue that the trial court departed from the essential requirements of the law in requiring the mental examinations under section 39.407(14) and rule 8.250(b). Both provisions provide that the court may order a person seeking custody of a child to submit to a mental examination when the mental or physical condition of the person “is in controversy” and the party seeking the examination shows “good cause” for the examination. § 39.407(14); Fla. R. Juv. P. 8.250(b). The “in controversy” and “good cause” requirements are also included in Florida Rule of Civil Procedure 1.360(a), which provides for mental examinations in civil actions.

In a case involving a mental examination of a father in a dissolution modification action, this court explained the “in controversy” requirement under rule 1.360(a). See Williams v. Williams, 550 So.2d 166 (Fla. 2d DCA 1989). For a parent’s mental health to be “in controversy,” “the condition must directly involve a material element of the cause of action.” Id. at 167. But see In re T.M.W., 553 So.2d 260, 262-63 (Fla. 1st DCA 1989) (assuming the. parent’s mental condition was in controversy because custody was at issue); In re S.N., 529 So.2d 1156, 1159 (Fla. 1st DCA 1988) (holding that the mother’s mental condition was implicated in a dependency proceeding without further analysis).

In Gasparino v. Murphy, 352 So.2d 933 (Fla. 2d DCA 1977), this court engaged in an in-depth examination of the “in controversy” requirement of rule 1.360(a). The petitioner was a police officer who was a defendant in a wrongful death action. Id. at 934. The police officer had stabbed the decedent after the decedent pulled a knife on the police officer and attempted to stab him in the neck. The complaint alleged negligence and use of excess force. The respondent sought a mental examination to determine the police officer’s state of mind or whether he had any mental problems at the time of the shooting. In quashing the order requiring the mental examination under rule 1.360(a), this court held that the police officer’s mental state was not at issue in the litigation. Id. at 935. The court concluded, “While petitioner’s mental state may shed some light on why he acted as he did, it is not involved in either establishing the standard of care or in determining whether or not it has been violated.” Id.

Assuming the allegations in the Department’s motion for mental examination are true, the parents’ mental state may shed some light on why one or both of them shook their infant daughter. However, the parents’ mental state is not involved in establishing whether they abused the younger child, G.D., or failed to prevent abuse in such a way that would require termination of their parental rights as to G.D. There are no allegations that either parent has a mental disability or condition that would cause them to either shake the baby or prevent such conduct.

However, the parents’ mental state may be at issue in establishing whether to terminate the parental rights of G.D.’s older sibling, C.D., based on the abuse of G.D. The court may not terminate parental rights based on the abuse of a sibling without a finding of a nexus between the abuse and the prospective abuse. O.M. v. Dep’t of Children & Family Servs. (In re G.C.A.), 863 So.2d 476 (Fla. 2d DCA 2004) (citing R.F. v. Dep’t of Children & Families (In re M.F.), 770 So.2d 1189 (Fla.2000)); see also C.M. v. Dep’t of Children & Families (In re C.M.), 844 So.2d 765, 766 (Fla. 2d DCA 2003) (“Children who have not been abused may be adjudicated dependent based on abuse inflicted upon their siblings; however, the evidence must demonstrate a nexus between the abuse and any prospective abuse to another sibling.”). But see T.P. v. Dep’t of Children & Families, 860 So.2d 1084, 1089 (Fla. 5th DCA 2003) (holding that parental rights may be terminated based on the egregious abuse of a sibling without a showing of a nexus but providing that the parent should be afforded the opportunity to show a lack of a nexus).

“Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child.” C.M., 844 So.2d at 766; see also Gaines v. Dep’t of Children & Families, 711 So.2d 190, 193 (Fla. 5th DCA 1998) (holding that in order to support a termination of parental rights based on prospective abuse it is necessary to show that the “behavior of the parent was beyond the parent’s control, likely to continue, and placed the child at risk,” and citing as an example the parent’s mental illness).

Thus, when the Department seeks to terminate the parental rights of C.D., the mental state of the parents may be placed in issue. However, the parents’ mental state is not at issue until the petition for termination containing the pertinent allegations is filed. Because the Department has not yet filed a petition for termination of parental rights containing allegations that place the parents’ mental state in issue, the trial court departed from the essential requirements of the law in compelling the parents to submit to a mental examination.

The parents’ second basis for a departure from the essential requirements of the law is that a mental examination would violate their Fifth Amendment privilege against self-incrimination because statements taken during the examination could be used at a subsequent criminal trial. The parents’ objection to the court’s order compelling a mental examination on this issue is not to the act of ordering the examination, but to the potential questions that may be asked at the examination. However, by merely compelling the examination, the court has not interfered with the parents’ Fifth Amendment rights. The court’s order does not in any way preclude the parents from refusing to answer questions during the examination on Fifth Amendment grounds. Furthermore, any harm that might result from a violation of the parents’ Fifth Amendment rights in the mental examination could subsequently be cured by having the offending information excluded at trial. Thus, the trial court’s order did not depart from the essential requirements of the law on this basis.

Petition granted; order quashed.

ALTENBERND, C.J., and VILLANTI, J., concur.

      . The case probably did not proceed under Florida Rule of Juvenile Procedure 8.250(b) because visitation, not custody, was at issue.

      . At the time they were sheltered, G.D. had just turned one, and C.D. was two years old.


author: COVINGTON, Judge.

text:
    Patrick Hill BUTLER, Appellant, v. Sandra Kay BUTLER, Appellee.
    No. 2D03-3469.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.
    John P. Fleck, Jr., Bradenton, for Appellant.
    John W. Kaklis of Garland, Padelford & Kaklis, P.A., Bradenton, for Appellee.
   COVINGTON, Judge.

Patrick Butler challenges the circuit court’s final summary judgment foreclosing judgment liens held by the appellee, Sandra Butler, and setting a clerk’s sale of his undivided one-half interest in their former marital residence. We reverse because the underlying judgments never became liens on the husband’s real property.

Sandra Butler’s complaint in foreclosure included two recorded judgments of $8261 and $1831.16 from 2001 and 2002, representing child support arrearages and unpaid health and medical expenses for their children. Her complaint alleged that the husband owed her $9190.12, plus unpaid interest and other expenses, and asserted a right to foreclose his undivided one-half interest in the property they held as tenants in common. The wife filed a motion for summary judgment with an affidavit supporting her claim for $9190.12, plus interest on the judgments. The husband never filed a response or an opposing affidavit.

Ten days before the summary judgment hearing, the court entered an amended order and judgment for contempt and commitment in the sum of $12,029.16, which was duly recorded. The wife did not, however, amend the complaint to include the third judgment. After a hearing, the court entered a final judgment of foreclosure in the total sum of $23,329.95, imposing a judgment lien in that amount on the husband’s undivided one-half interest in the property and setting a public sale. The final judgment referred to a mortgage that did not exist. The sale was stayed pending this timely appeal.

The movant must demonstrate conclusively and to a certainty from the record that the nonmovant cannot plead or otherwise raise a genuine issue of material fact. Coast Cities Coaches, Inc. v. Dade County, 178 So.2d 703 (Fla.1965); Beach Higher Power Corp. v. Granados, 717 So.2d 563, 565 (Fla. 3d DCA 1998). When, as in this case, the nonmovant fails to come forward with any affidavit or other proof in opposition to the motion for summary judgment, the movant need only establish a prima facie case whereupon the court may enter such judgment. See Harvey Bldg., Inc. v. Haley, 175 So.2d 780, 782-83 (Fla.1965).

The husband correctly asserts that the wife failed to observe formalities in recording judgments.

A judgment ... does not become a lien on real property unless the address of the person who has a lien as a result of such judgment ... is contained in the judgment ... or an affidavit with such address is simultaneously recorded with the judgment....

§ 55.10(1), Fla. Stat. (2001). A judgment does not mature into a lien where the lienholder’s address does not appear on the judgments. Consequently, no liens attached to the real property here as a result of the recordation of the judgments. See Tomalo v. Kingsley Displays, Inc., 862 So.2d 899, 900-01 (Fla. 2d DCA 2003) (citing Hott Interiors, Inc. v. Fostock, 721 So.2d 1236, 1238 (Fla. 4th DCA 1998)); Dyer v. Beverly & Tittle, P.A., 777 So.2d 1055, 1058 (Fla. 4th DCA 2001); Decubellis v. Ritchotte, 730 So.2d 723, 725-26 (Fla. 5th DCA 1999). Notwithstanding our concern that the final judgment added the third judgment that had not been included in pleadings or affidavit, it, too, was recorded without the requisite formalities of section 55.10(1). Accordingly, we reverse the final summary judgment.

We limit our decision to its holding and express no opinion on any other aspect of the case in light of the very limited record presented on appeal.

Reversed and remanded for further proceedings.

SALCINES and WALLACE, JJ., concur.


author: FULMER, Judge.

text:
    Jim SMITH, Property Appraiser, Pinellas County, Florida, Appellant, v. AMERICAN LUNG ASSOCIATION OF GULFCOAST FLORIDA, INC., Appellee.
    No. 2D03-1967.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.
    Christina LeBlanc, Assistant County Attorney, and Norris Rickey, Senior Assistant County Attorney, Clearwater, for Appellant.
    Ira M. Seidler of Smith & Seidler, St. Petersburg, for Appellee.
   FULMER, Judge.

Jim Smith, the Property Appraiser for Pinellas County, appeals the trial court’s summary judgment in favor of the American Lung Association of Gulfcoast Florida, Inc., holding that the Association was entitled to an exemption from ad valorem taxes for the tax year 2001. We reverse.

The facts were undisputed. The Association is a charitable organization that qualifies as an exempt entity under chapter 196, Florida Statutes (2000). In 2000, it purchased vacant property on which it planned to construct its new corporate headquarters. In October 2000, the Association held a one-day event at the site, which included a board meeting, a groundbreaking ceremony, and fund-raising activity. In the remaining months of 2000, the Association held various meetings at the site with architects and representatives from its bank.

The Association sought an exemption from ad valorem taxes for its corporate headquarters under section 196.192, Florida Statutes (2000). The Property Appraiser denied the exemption as did the Value Adjustment Board. The Association then filed suit in the circuit court, challenging the denial of its exemption. On cross-motions for summary judgment, the trial court determined that the Association’s property was entitled to the exemption.

Section 196.192(1) provides that “[a]ll property owned by an exempt entity and used exclusively for exempt purposes shall be totally exempt from ad valorem taxation.” Section 196.012(1) defines “[ejxempt use of property” or “use of property for exempt purposes” as “predominant or exclusive use of property owned by an exempt entity for education, literary, scientific, religious, charitable, or governmental purposes.” Section 196.012(2) defines “[exclusive use of property” in part as “use of property solely for exempt purposes.” Section 196.012(7) defines “[cjharitable purpose” in part as “a function or service which is of such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service.” And section 196.196 provides in pertinent part:

(1) In the determination of whether an applicant is actually using all or a portion of its property predominantly for a charitable, religious, scientific, or literary purpose, the following criteria shall be applied:
(a) The nature and extent of the charitable, religious, scientific, or literary activity of the applicant, a comparison of such activities with all other activities of the organization, and the utilization of the property for charitable, religious, scientific, or literary activities as compared with other uses.
(2) Only those portions of property used predominantly for charitable, religious, scientific, or literary purposes shall be exempt. In no event shall an incidental use of property either qualify such property for an exemption or impair the exemption of an otherwise exempt property.

The parties agree that when the Association completes its corporate headquarters and moves in, it will be entitled to the exemption. The question here is whether it is entitled to the exemption while the building is under construction.

“The taxable status of property is determined on January 1 of each year. This is the date on which the tax assessor determines whether a particular parcel of property is entitled to exemption from taxation for the tax year.” Dade County Taxing Auths. v. Cedars of Lebanon Hosp. Corp., 355 So.2d 1202, 1204 (Fla.1978) (citation omitted). In this case, on January 1, 2001, the Association’s property was being used for the construction of the Association’s future headquarters. As the supreme court has made clear, it is the actual use of the property as of the assessment date, rather than its intended future use, that controls the determination of whether the property qualifies for an exemption from ad valorem taxes. Cedars of Lebanon, 355 So.2d at 1204. Although uncomfortable with the result, the Third District applied this holding in Metropolitan Dade County v. Miami-Dade County Community College Foundation, Inc., 545 So.2d 324 (Fla. 3d DCA 1989), when it reversed a tax exemption granted to property that was being remodeled for an exempt use. We likewise conclude that this case is controlled by the supreme court’s decision in Cedars of Lebanon and that the actual use of the property on January 1, 2001, i.e., the ongoing construction of a building, does not qualify for an exemption even though the intended future use of the building will qualify. Accordingly, we reverse the summary judgment granted in the Association’s favor and remand for the trial court to enter summary judgment in favor of the Property Appraiser.

Reversed and remanded.

SALCINES and CANADY, JJ., Concur.


author: PER CURIAM.

text:
    Jeffrey JAMES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D03-3339.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Jeffrey James, in proper person.
    John D. Maher, for appellee Unemployment Appeals Commission.
    Before GODERICH, FLETCHER and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. ABC Auto Parts, Inc. v. Florida Dep’t of Labor & Employment Sec., 372 So.2d 197 (Fla. 1st DCA 1979).


author: WALLACE, Judge.

text:
    AMERICAN ZURICH INSURANCE COMPANY, Appellant, v. ST. GEORGE CRYSTAL, LTD., Appellee.
    No. 2D03-1839.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    James Thomas Gordon of Law Office of Michael J. Krakar, Orlando, for Appellant.
    Michael A. Tonelli of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Appel-lee.
   WALLACE, Judge.

American Zurich Insurance Company, as subrogee of Blyth, Inc., doing business as Candle Corporation of America, doing business as Partylite Gifts (American Zurich), appeals the final summary judgment entered in favor of St. George Crystal, Ltd. (St. George). Because the trial court erred as a matter of law in determining that section 725.01, Florida Statutes (1997), barred American Zurich’s claims, we reverse the trial court’s final summary judgment, and we remand for further proceedings.

The facts drawn from the record are reviewed in the light most favorable to the nonmoving party against whom final summary judgment was entered. Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla.2002). According to American Zurich’s complaint, St. George was the exclusive manufacturer of glass candle holders for its insured. On July 14, 1998, one of the candle holders St. George supplied to American Zurich’s insured broke in half and caused injury to a customer. The customer filed a personal injury action against American Zurich’s insured. In September 2000, American Zurich settled the lawsuit on behalf of its insured for $50,000. Acting as the subro-gee of its insured, American Zurich then filed an action in the circuit court against St. George for contractual indemnity. American Zurich’s claims for contractual indemnity were based upon the terms and conditions of purchase that appeared on the reverse side of a purchase order that American Zurich’s insured routinely used to purchase candle holders from its supplier, St. George. The relevant provisions of the purchase order were as follows:

1. Acceptance. Seller shall be bound by this order and all of the terms and conditions hereof upon its acknowledgment or acceptance of this order, or upon the delivery of all or any part of the products or services ordered herein. Any waiver, alteration or modification of the terms and conditions of this order, to be valid, must be in writing and signed on behalf of Buyer by its authorized agent. Any variation, change or difference from the terms and conditions set forth herein (whether by way of additional or different terms and conditions proposed by the Seller in any acknowledgment form or other written or oral communication) is hereby objected to.
5. Indemnification. Seller agrees to defend, indemnify and hold harmless Buyer, its employees and customers from and against any and all loss, liability, damages, costs, attorneys’ fees or other expenses incidental thereto of any kind and nature whatsoever, on account of any claims or suits for bodily injury or death to any person....

American Zurich was unable to produce a writing signed by St. George or its authorized agent acknowledging the terms of the contract.

St. George moved for summary judgment on the ground that the contract alleged in the complaint was unenforceable pursuant to section 725.01 because it was not in a writing signed by St. George and was a promise “to answer for the debt, default or miscarriage of another person.” In response, American Zurich asserted that section 725.01 was inapplicable. American Zurich asserted that because the alleged agreement was a contract for the sale of goods, section 672.201, Florida Statutes (1997), the statute of frauds contained in article 2 of the Uniform Commercial Code — and not section 725.01 — was controlling.

The circuit court ruled that section 725.01 barred the enforcement of American Zurich’s claims “to the extent same sound in indemnification or seek recovery for breach of contract based upon any contractural [sic] provision dealing with indemnification.” Accordingly, the circuit court entered a final summary judgment in favor of St. George and against American Zurich.

Summary judgment is proper only when there is no genuine issue of material fact and when the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Therefore, the standard of review of a summary judgment is de novo. Id. Our review of the summary judgment in this case requires us to determine whether the circuit court correctly ruled as a matter of law that section 725.01 was applicable to the agreement between American Zurich’s insured and St. George.

The initial step in our analysis is to determine whether the parties entered into a contract for the sale of goods. If so, then section 672.201, the statute of frauds provided for in article 2 of the UCC, is controlling. Only upon a finding that section 672.201 is not controlling need we refer to the general statute of frauds, section 725.01. Cf. Rozema v. Wilson, 419 So.2d 1139 (Fla. 1st DCA 1982) (excluding the applicability of section 672.201 before analyzing the enforceability of a contact under section 725.01). Article 2 of the UCC, as adopted in chapter 672, Florida Statutes, applies to all transactions in goods. § 672.102. Viewed in the light most favorable to American Zurich, the record establishes that American Zurich’s insured agreed to purchase and St. George agreed to sell one or more quantities of candle holders. Because candle holders meet the definition of “goods” contained in section 672.105, the parties’ agreement was for a transaction in goods. Therefore, section 672.201, not section 725.01, is controlling on the statute of frauds issue.

Because section 725.01 was inapplicable to the agreement between American Zurich’s insured and St. George, the circuit court erred in granting summary judgment in favor of St. George on the theory that section 725.01 operated to bar the enforcement of American Zurich’s claims based on contractual indemnity. We need not consider the enforceability of the agreement pursuant to section 672.201 because St. George did not plead the statute of frauds contained in article 2 of the UCC as a defense. The question whether the provision for indemnification contained in the purchase order ever became a part of the agreement between American Zurich’s insured and St. George is a separate issue that must be addressed on remand. See Advanced Mobilehome Sys. of Tampa, Inc. v. Alumax Fabricated Prods., Inc., 666 So.2d 166 (Fla. 2d DCA 1995) (noting the distinction between eliminating the statute of frauds as a defense and proving the terms of the contract). Our resolution of this matter also makes it unnecessary for us to address St. George’s argument that section 725.01’s reference to a “promise to answer for the debt, default or miscarriage of another” applies to a contract for indemnity.

The circuit court erred in entering summary judgment in favor of St. George. Accordingly, we reverse the final summary judgment, and we remand this case to the circuit court for further proceedings.

Reversed and remanded for further proceedings.

STRINGER, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: NORTHCUTT, Judge.

text:
    Nick NICHOLAS, Appellant, v. Maria NICHOLAS, Appellee.
    No. 2D02-3773.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.

      K. Dean Kantaras, Clearwater, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

Nick Nicholas challenges the financial aspects of the judgment dissolving his marriage to Maria Nicholas. He contends the circuit court abused its discretion when imputing income to him for the purpose of setting alimony and child support, and in distributing the parties’ assets. We reverse the alimony and child support awards because the amount of income imputed to Mr. Nicholas was not supported by competent, substantial evidence. We affirm the equitable distribution without further discussion.

The case was tried before a general master. Mr. Nicholas, who apparently was unrepresented at the time, failed to appear despite receiving notice. Mrs. Nicholas testified about Mr. Nicholas’s income and the parties’ lifestyle. Mr. Nicholas had previously run a fish business but, according to Mrs. Nicholas, he had some Microsoft “certification papers.” She said he was presently doing some unidentified work with computers. Mrs. Nicholas introduced her year-old financial affidavit, which claimed monthly expenses of $2366. She testified that these expenses were consistent with the standard of living established in the marriage. But the financial affidavit also reflected that Mr. Nicholas’s mother paid $1000 of these monthly expenses. When asked whether Mr. Nicholas always made enough money to support the household at the approximately $2400 per month level, Mrs. Nicholas responded “[sjometimes he did, yes.” She also admitted that her mother-in-law helped the family from time to time.

Mrs. Nicholas’s attorney then read into the record the testimony of Sal Valentino, a computer shop owner who had testified at a previous temporary support hearing concerning the amount Mr. Nicholas might earn as a computer technician. Valentino reviewed records that showed Mr. Nicholas had taken some classes and tests in order to become certified by Microsoft, but he did not see any records that showed Mr. Nicholas had actually attained certification. According to Valentino, a computer technician with Microsoft certification could earn between $40,000 and $70,000 per year. Someone with networking experience, but without the certification, could expect a starting salary of between $30,000 and $50,000 per year.

In his report and recommendation to the circuit court, the general master imputed $30,000 per year income to Mr. Nicholas. Using the imputed income, he proposed to award the wife $400 per month in permanent alimony, and he calculated Mr. Nicholas’s child support obligation as $347.05 per month. Mr. Nicholas objected to the general master’s report, contending among other things that the general master should not have imputed income to him. After a hearing, the circuit court denied the objections and entered a final judgment approving the general master’s report and adopting the master’s alimony and child support awards.

While we do not countenance Mr. Nicholas’s failure to appear at the final hearing, we must reverse because the master’s finding that Mr. Nicholas could earn $30,000 per year was not supported by competent, substantial evidence. See Hinton v. Smith, 725 So.2d 1154, 1156 (Fla. 2d DCA 1998). Accordingly, the circuit court erred in basing its award of alimony and child support in the final judgment on the master’s report.

Generally, a court may impute income if a spouse is earning less than he could, if there is a showing that he has the capability of earning more by using his best efforts. See Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997). We first note that Mrs. Nicholas presented no evidence at all concerning either Mr. Nicholas’s present earnings or his earning history. See Solomon v. Solomon, 861 So.2d 1218, 1220 (Fla. 2d DCA 2003) (noting that in imputing income a court must consider a spouse’s recent work history, as well as his occupational qualifications and the prevailing salary in his field). She did not introduce any documentary evidence, such as tax records or pay slips, that would show his actual income. Nor did she seem to know exactly what Mr. Nicholas did to earn money, or what his present earnings were.

Lacking this information, the general master primarily relied on Mrs. Nicholas’s testimony that her husband had maintained the family’s standard of living at approximately $2366 per month. But as previously noted, Mrs. Nicholas’s testimony was contradicted by her own financial affidavit, introduced in evidence. That affidavit stated that Mr. Nicholas’s mother paid $1000 of the parties’ monthly expenses. Deducting that amount, the parties contributed only $1366 per month to their own standard of living. Moreover, Mrs. Nicholas’s gross income was shown as $921 per month. Her testimony was simply insufficient to establish her husband’s income or income-earning potential.

Nor did Sal Valentino’s testimony provide competent, substantial evidence of Mr. Nicholas’s earning capability. While Valentino stated that a person with Microsoft certification could earn a certain salary, Valentino did not know what certificates Mr. Nicholas had earned, or even what work he was presently doing. Cf. Hinton, 725 So.2d at 1157 (“[Attainment of a degree alone does not guarantee employment or a particular salary, and thus does not constitute sufficient evidence to support imputation.”). Valentino’s testimony was inadequate to justify the imputation of income in the final judgment.

We reverse the circuit court’s decision to impute income to Mr. Nicholas, and therefore we must also reverse the awards of child support and alimony based on this income. We remand for the court to take further evidence on this issue. See Batson v. Batson, 821 So.2d 1141, 1143 (Fla. 5th DCA 2002) (Peterson, J., concurring) (stating that one of the judicial purposes in marriage dissolutions is to promote equity; therefore remand for the purpose of further evidentiary proceedings is appropriate in order to cure a deficiency that was not attributable to the trial judge, but to one or both of the parties). If, on remand, Mrs. Nicholas presents competent, substantial evidence that Mr. Nicholas is earning less than he could, and has the capability of earning more by using his best efforts, the court may again impute income to him and use that income to establish awards of alimony and child support. Otherwise, the alimony and child support must be based on his actual income.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and SALCINES, JJ., Concur.


text:
    Dawn Yvone Faulkner PEARSON, Petitioner, v. Lance William PEARSON, Respondent.
    No. 2D04-739.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    Joseph J. Registrato, Tampa, for Petitioner.
    Lance K. Stalnaker and Randall O. Re-der, Tampa, for Respondent.
   PER CURIAM.

Dawn Yvone Faulkner Pearson (“Petitioner”) seeks a writ of prohibition against Circuit Judge Monica Sierra to disqualify her from presiding over any further post-judgment proceedings in her dissolution action. We conclude that Pearson’s motion to disqualify was legally sufficient and should have been granted. Accordingly, we grant the petition and issue the writ of prohibition.

Petitioner and her former husband, Lance William Pearson (“Respondent”), had a child in 1997. The final judgment dissolving their marriage awarded Petitioner primary custody of the child, and Respondent, who lives in Mississippi, was awarded visitation. Visitation was to begin in May 2000, but according to a contempt motion Respondent filed, it did not occur as scheduled.

The events precipitating Petitioner’s motion to disqualify Judge Sierra occurred during a December 5, 2003, hearing on Respondent’s contempt motion regarding the May 2000 visitation. According to Petitioner’s motion to disqualify, neither party sought to have the child called as a witness, but the trial court ordered Petitioner to bring the child to court. The motion to disqualify states that Judge Sierra had the parties removed from the courtroom during the hearing. She then had the child brought into the courtroom and, after speaking with the child, had Respondent brought into the courtroom as well. Neither the attorneys for the parties nor Petitioner were present during the meeting between Judge Sierra, the child, and Respondent. Judge Sierra’s order on the motion for contempt explains that the purpose of the interview with the child was to “determine whether a change of custody was an appropriate sentence/punishment” for contempt, but it offers no insight into the purpose of the ex parte communication with Respondent.

The Code of Judicial Conduct in Canon 3(B)(7) states that:

[A] judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.” “Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.

Rose v. State, 601 So.2d 1181, 1183 (Fla.1992). It is because of its effect on the appearance of impartiality that an allegation of an ex parte communication is legally sufficient to require recusal. See, e.g., Robbins v. Robbins, 742 So.2d 395 (Fla. 2d DCA 1999) (holding that an ex parte communication alone is legally sufficient to require recusal); Rollins v. Baker, 683 So.2d 1138, 1139 (Fla. 5th DCA 1996) (holding that the ex parte communications together with certain comments made by the judge were sufficient to require recu-sal); Brake v. Murphy, 693 So.2d 663 (Fla. 3d DCA 1997) (holding that evidence of ex parte communication between the judge and the opposing party necessitated recu-sal).

Thus, Petitioner’s allegation of an ex parte communication alone adequately established a reasonable basis to fear that she would not receive a fair hearing in subsequent proceedings. That incident taken together with the trial court’s expressed desire to “punish” Petitioner with a change of custody that was not sought by Respondent makes an even more compelling basis for a reasonably prudent person to fear that she would not receive a fair hearing. Accordingly, we grant the petition and issue the writ of prohibition disqualifying Judge Sierra from further participation in this matter.

WHATLEY, KELLY, and WALLACE, JJ., Concur.

      . This canon includes five exceptions, none of which apply here.


text:
    Roosevelt DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5762.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In this appeal, we are asked to determine whether a plea agreement for a probationary split sentence, in which the prison term is an upward departure from the guidelines, is a valid reason to impose an upward departure sentence upon revocation of probation when the original plea agreement did not include an express agreement as to sentencing upon revocation. We hold that the requirements of the guidelines compel the conclusion that an upward departure sentence is not authorized under these circumstances. This conclusion requires that we reverse the portion of the sentence resulting in actual prison time imposed on the appellant, Roosevelt Daniels, after the revocation of his probation because it was an illegal upward departure from the sentencing guidelines.

Facts and Procedural History

Daniels was originally charged with three counts of capital sexual battery and one count of lewd and lascivious activity with a minor. The date of the offenses was October 14, 1986. In January 1987, Daniels entered a negotiated plea of guilty to two counts of attempted capital sexual battery and two counts of lewd and lascivious activity with a minor. He was subsequently sentenced to thirty years’ imprisonment on one count of attempted capital sexual battery (count one), followed by concurrent terms of fifteen years’ probation on the other three counts (counts two, three and four). This was an upward departure sentence under the sentencing guidelines in effect at that time. The guidelines scoresheet calculated the guidelines range at twelve to seventeen years. The only reason listed on the scoresheet for the departure referenced the plea negotiation.

With the benefit of gain-time, Daniels finished serving the thirty-year prison term imposed on count one in March 1999. Three years later, Daniels’ probation officer filed an affidavit alleging that Daniels had violated his probation on counts two, three, and four by having unauthorized contact with a minor. After an evidentiary hearing, the trial court found that Daniels had violated his probation as charged and revoked his probation on counts two, three, and four.

The trial court sentenced Daniels to a term of thirty years’ imprisonment on count two and fifteen years’ imprisonment on counts three and four. The sentences were designated to run consecutively. The calculations on the scoresheet used for sentencing on the violation of probation were identical to the original scoresheet. The guidelines range was calculated at twelve to seventeen years, with seventeen to twenty-two years permitted by the one-cell probation violation bump.

Because all counts were scored on a single scoresheet, the trial court recognized that Daniels was entitled to credit for time served on count one as to the prison terms imposed upon revocation of probation for the other three counts. See Tripp v. State, 622 So.2d 941, 942 (Fla. 1998). Thus, against the total sixty years’ imprisonment imposed on counts two, three, and four, the trial court granted Daniels credit of thirty years for time served on count one, which was expressed as a specific credit as to the thirty-year term imposed on count two. See Hodgdon v. State, 789 So.2d 958, 963 (Fla.2001) (clarifying Tripp to hold that “a defendant who violates probation on multiple counts imposed consecutive to a prison term is entitled to credit for the time served on the prison term as to the entire sentence imposed on the probation violation”); see also State v. Witherspoon, 810 So.2d 871 (Fla.2002); Cook v. State, 645 So.2d 436 (Fla.1994). The result was an actual prison sentence of two consecutive fifteen-year terms.

The trial court also recognized that any sentence involving actual prison time would be an upward departure from the guidelines because Daniels had fully completed serving his initial upward departure sentence. As authority for the imposition of an upward departure from the sentencing guidelines, the trial court cited Williams v. State, 581 So.2d 144 (Fla.1991) (Williams I), and entered a written order stating its reason for the upward departure sentence as follows:

[D]ue to the fact that at the original sentencing on February 11, 1987, Defendant entered into an uncoerced negotiated plea agreement for an upward departure from the guidelines where Defendant agreed to plea [sic] to the stipulated lesser offenses for thirty (30) years Florida State Prison, because Defendant was facing three life sentences with a twenty-five (25) year minimum mandatory.

Other than the terms of the original sentence, no other record of the terms of the original plea agreement was available to the trial court.

After the sentence was entered, Daniels’ counsel filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied the motion.

Revocation of Probation

Daniels contends that the State failed to prove that he committed a willful and substantial violation of his probation. After a review of the record, we find that the evidence was sufficient to prove, that Daniels committed a willful and substantial violation of his probation. Daniels’ argument on this point does not warrant further discussion.

The Sentencing Issue

Computed on a single scoresheet, Daniels’ original sentence consisted of a prison term of thirty years followed by three fifteen-year terms of probation, concurrent with each other but consecutive to the prison term. This original sentence was a “probationary split sentence,” as defined by Poore v. State, 531 So.2d 161, 164 (Fla.1988), which consists of a prison term, none of which is suspended, followed by a term of probation. A probationary split sentence is distinguished from a “true split sentence,” which consists of a total prison term with a portion of the term suspended and the defendant placed on probation for the suspended portion. Id.

It is well-settled that a negotiated plea is a valid reason to impose an initial upward departure prison sentence. State v. Williams, 667 So.2d 191, 193 (Fla.1996) (Williams II); Quarterman v. State, 527 So.2d 1380, 1382 (Fla.1988). The sentencing issue in this case presents a question of first impression: whether a plea agreement for a probationary split sentence, in which the prison term is an upward departure from the guidelines, is a valid reason to impose an upward departure sentence upon revocation of probation when the original plea agreement did not include an express agreement as to sentencing upon revocation. Daniels preserved this issue in his rule 3.800(a) motion, and our standard of review is de novo. See Wardlaw v. State, 832 So.2d 258, 259 (Fla. 2d DCA 2002).

A similar question has been answered in the context of a true split sentence. Under a true split sentence pursuant to a negotiated plea, where the actual prison portion of the sentence was an upward departure, the plea agreement is not a valid reason for imposition of an upward departure sentence upon revocation of probation unless the defendant specifically agreed in advance to imposition of a departure sentence upon revocation. McGlothlin v. State, 714 So.2d 640, 641 (Fla. 4th DCA 1998) (following Hosmer v. State, 523 So.2d 184 (Fla. 1st DCA 1988)); see Wardlaw, 832 So.2d at 259 (reaching the same result when the original sentence was not an upward departure); Lawrence v. State, 682 So.2d 582, 583-84 (Fla. 5th DCA 1996) (same). “[A]though a plea bargain may provide a valid reason for departure with respect to the initial disposition, it cannot be viewed as an implicit waiver of the guidelines with respect to sentencing subsequent to the initial disposition.” McGlothlin, 714 So.2d at 641 (quoting Hosmer, 523 So.2d at 186). Rather, an upward departure sentence upon revocation of probation is permitted only if “the defendant in his original plea specifically recognizes and agrees that, upon violation of his probation, he can receive an above-guidelines sentence equal to the probation portion of the split sentence.” Lawrence, 682 So.2d at 583.

At Daniels’ sentencing hearing, the State urged that Daniels’ original negotiated plea justified an upward departure pursuant to Williams I, which held that upon revocation of probation, the court may impose an upward departure prison sentence for any reason for departure that existed at the time the defendant was placed on probation. 581 So.2d at 146. The State conceded that several district courts of appeal have held that an upward departure based on a plea agreement does not authorize a subsequent upward departure for a violation of probation, including McGlothlin, Lawrence, and Hosmer. The State argued that these cases should not be relied upon because they did not discuss the rationale articulated by Williams I. Specifically, the State distinguished Lawrence on the ground that it involved a true split sentence and thus was not controlling. The State argued that unlike a true split sentence, a probationary split sentence afforded the trial court greater flexibility in sentencing, citing, among others, Poore, 531 So.2d 161. The fact that Daniels’ sentence was a probationary split sentence and not a true split sentence was the main reason offered by the State in order to justify the application of Williams I to the upward departure sentence upon revocation.

We do not agree that the rationale of Williams I justifies an upward departure sentence in this case. Williams I involved a sentence that was imposed against the defendant’s will, and the reason for departure existing at the time the defendant was placed on probation was an escalating pattern of criminal conduct. 581 So.2d at 145. The court declined to impose a departure sentence at the initial sentencing and instead sentenced the defendant to probation. Upon revocation of probation, the court properly imposed an upward departure sentence for the reason that existed at the time the defendant was placed on probation. Id. at 146.

In Daniels’ case, by contrast, Daniels’ sentence was the result of a negotiated plea, and the only valid reason for an initial upward departure was his assent pursuant to the plea agreement. According to the record before us, the terms of the plea agreement are the terms of the original sentence. There is no suggestion that Daniels recognized and agreed that, upon violation of his probation, he could receive an above-guidelines sentence equal to the probation portion of his cumulative sentence. One might argue that Daniels, having agreed to probation over and above an upward departure sentence, implicitly assented to the condition that he would be sentenced to actual prison time upon revocation of probation. The contrary view suggests that the State and Daniels agreed to a nullity when they agreed to probation after serving the upward departure sentence. However, the guidelines are a limitation on actual prison time, not probationary terms. See Robbins v. State, 641 So.2d 934 (Fla. 2d DCA 1994). The guidelines were intended to establish uniform standards in determining prison sentences, with departures from the guidelines narrowly permitted. Fla. R.Crim. P. 3.701(b), (d)(ll). The notion that a negotiated plea with respect to an initial disposition can act as an implicit waiver of the guidelines with respect to sentencing upon revocation of probation has been rejected. See Ward-law, 832 So.2d 258; McGlothlin, 714 So.2d 640; Lawrence, 682 So.2d 582; Hosmer, 523 So.2d 184. In the context of a plea agreement, the cumulative prison sentence of all offenses computed on a single score-sheet may be upwardly departed from only to the extent specifically dictated by the agreement. Nothing in Williams I justifies a different result when the sentence is a probationary split sentence instead of a true split sentence.

The State correctly observes that a probationary split sentence affords greater flexibility in sentencing upon revocation than a true split sentence. Indeed, Poore recognized that upon revocation of probation under a true split sentence, the court was limited to imposing a prison sentence equal to the suspended portion of the original prison sentence, whereas under a probationary split sentence, the court was limited only by the guidelines. 531 So.2d at 164. However, the trial court has no flexibility to circumvent the guidelines in sentencing upon revocation without a valid reason to upwardly depart, regardless of whether the sentence was a true split sentence or a probationary split sentence. As Poore explained, the guidelines limit “the cumulative prison term of any split sentence upon a violation of probation.” Id. at 165.

The State’s Applegate Argument

The State contends that because the terms of the original plea agreement of 1987 are unknown, Daniels failed to supply a sufficient record to demonstrate reversible error, citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). In response, Daniels correctly points out that the State has the burden to prove a valid basis for an upward departure sentence. Under the sentencing regime applicable to Daniels, the facts supporting an upward departure “must be credible and proven beyond a reasonable doubt.” Scurry v. State, 489 So.2d 25, 28 (Fla.1986). On appeal, if the reviewing court finds that one or more reasons for an upward departure are invalid, then the State has the burden to demonstrate beyond a reasonable doubt that the trial court would have imposed an upward departure absent the invalid reasons. Montgomery v. State, 489 So.2d 1225, 1227 (Fla. 5th DCA 1986). In this case, the sole reason apparent from the record for the imposition of the upward departure sentence was the original plea agreement. The State has failed to prove that its terms justified an upward departure, nor has the State demonstrated other valid reasons that could justify an upward departure.

Disposition

Accordingly, we affirm the revocation of Daniels’ probation. We affirm the sentence as to count two, in which Daniels was sentenced to thirty years with thirty years’ Tripp credit for time served. This sentence was not an upward departure from the guidelines because it was not a sentence of actual prison time. We reverse the sentences for counts three and four (the consecutive fifteen-year prison terms), and we remand for resentencing. On remand, the trial court may impose community control or probation and conditions thereto within its discretion. The conditions of supervision may include conditions the trial court may deem appropriate to protect the public from Daniels, including current statutory conditions of sex offender probation.

Order of revocation of probation affirmed; sentence as to count two affirmed; sentences as to counts three and four reversed; and remanded for resentencing on counts three and four.

STRINGER and WALLACE, JJ., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . Although Daniels actually served only twelve years of his thirty-year prison sentence, he was entitled to credit for gain-time in addition to actual prison time as credit for time served. See § 944.275(3)(b), Fla. Stat. (1985). Since the enactment of chapter 89-531, section 6, Laws of Florida, the revocation of probation or community control now serves to forfeit any gain-time previously earned. This and other changes to the sentencing laws are inapplicable to Daniels, who continues to be subject to the sentencing regime in effect on the date of his offenses, October 14, 1986.

      . The Criminal Punishment Code, which is inapplicable to Daniels, does not recognize the idea of an "upward departure sentence.” Rather, the statutory maximum for a given offense limits the length of a prison sentence for that offense. See § 921.002(l)(g), Fla. Stat. (2003).

      . Under the guidelines, a sentence of actual prison time following additional violations is still possible for Daniels. In the event Daniels commits additional violations of probation, with each successive violation, the permitted sentencing guidelines range would increase one cell ''bump” for each violation with the result that eventually the guidelines would permit actual incarceration.

      . The State has previously conceded that the stenographic records from the original plea are unavailable. In its sentencing memorandum filed in the trial court, the State said: The State made an attempt to obtain a transcript to determine if additional findings supporting an upward departure were made at the time of the original plea and sentencing, but stenographic records no longer exist. Therefore, the State can rely only on the original plea negotiation as the basis for an upward departure from the sentencing guidelines at this time.

      .A subsequent amendment to the guidelines provided that the level of proof required for an upward departure was by a preponderance of the evidence. Ch. 93-406, § 5, Laws of Fla.


text:
    Greomar DUPREY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-908.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Greomar Duprey appeals the denial of his motion for postconviction relief in which he asserted that trial counsel was ineffective because he did not fully advise Duprey about possible defenses and he failed to investigate those defenses. Du-prey claims that his guilty plea was entered without a full understanding of the consequences of the plea and the nature of the offense. We affirm in part and reverse in part.

Duprey was charged with first-degree premeditated murder in the stabbing death of a man. Upon the advice of counsel, Duprey entered a plea of guilty to the lesser charge of second-degree murder for a negotiated sentence of twenty-five years’ imprisonment.

Duprey then filed a motion for postcon-viction relief raising two grounds of error. Duprey first alleged that trial counsel was ineffective for failing to conduct further inquiry into the defense of voluntary intoxication. In his motion, Duprey asserted that he was not apprised that in order for the State to prove first-degree murder, it must be proven that he had the necessary intent of premeditation. Duprey stated that he informed counsel that on the night of the incident he had been intoxicated through the use of alcohol and marijuana. Further, it was alleged that discovery depositions taken by defense counsel supported the fact that Duprey had been drinking that day and that it appeared that he was under the influence of intoxicants at the time of the incident. Duprey alleged that counsel’s “action and/or omission” rendered his plea involuntary because counsel informed him that there was “no defense” available. Duprey stated that had counsel fully explained the voluntary intoxication defense, he would have insisted on proceeding to trial.

The court summarily denied this first ground of error. In the order, the court recognized that voluntary intoxication was a valid defense to a specific intent crime. The order also acknowledged that a facially sufficient postconviction claim would be presented if a defendant had asserted that counsel failed to investigate the defense of voluntary intoxication to a specific intent crime. The court noted that first-degree murder was a specific intent crime and that second-degree murder was a general intent crime.

In summarily denying this ground, the court reasoned that while Duprey was charged with first-degree murder, he pleaded to and was convicted of a lesser included offense of second-degree murder, a crime requiring only proof of general intent. The court concluded, “Since Defendant was exonerated for a specific intent crime without the benefit of a defense of voluntary intoxication, the alleged error is not prejudicial. As such, Defendant fails to meet the second prong of the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] test and no relief is warranted on this ground.”

The court’s reasoning for summarily denying postconviction relief on this ground was incorrect. The focus was improperly centered on the unavailability of the defense of intoxication for the second-degree murder charge to which Duprey entered the plea. Instead, the court should have examined the possible prejudice to Duprey from defense counsel’s alleged lack of advice and preparation.

The First District was faced with a similar situation in Thompson v. State, 818 So.2d 632 (Fla. 1st DCA 2002). In Thompson, the defendant was told that voluntary intoxication was not a defense to first-degree murder. This was affirmative misadviee, which was an error not involved in the present case. The First District’s analysis is instructive, however, because the appellate court held that allegations in the motion for postconviction relief relating to the voluntary intoxication defense stated a facially sufficient claim. The First District noted:

The issue before us is whether counsel’s misadviee may have affected the volitional character of defendant’s plea by denying him the right to make a reasoned decision on whether to proceed to trial on the first-degree murder charge, not whether voluntary intoxication is a defense to the reduced offense of second-degree murder. Manslaughter is a Category 1 lesser-included offense of first-degree murder. If Thompson could persuade a jury that he was intoxicated at the time he killed the victim, he could conceivably be convicted of manslaughter, a second-degree felony punishable by up to 15 years in prison, which is significantly less than the 27 year sentence he received as a result of his negotiated plea of guilty to second-degree murder, which is a first-degree felony punishable by life.
There is no more assurance that the defendant would have been found guilty as charged, or of any one of the lesser offenses if he had been correctly advised of a potential defense to the charged offense. In any event, speculation as to a specific offense the jury may find the defendant guilty of if he had elected to proceed to trial does not render his claim of misadviee non-prejudicial.
Thompson sufficiently alleged all that was required of him for an ineffectiveness-of-counsel [sic] claim. He asserted and attached deposition testimony taken from witnesses before trial which should have placed his lawyer on notice that the defendant was intoxicated shortly before the commission of the crime. Compare West v. State, 791 So.2d 527 (Fla. 2d DCA 2001). He also alleged that he would have gone to trial absent counsel’s erroneous advice.
The fact that the offense to which he pled, second-degree murder, is, unlike the charged offense of first-degree murder, a general intent crime to which the voluntary intoxification [sic] defense is inapplicable, does not render his ineffectiveness claim non-prejudicial.

Id. at 633-34.

Although Thompson is distinguishable on its facts, we are persuaded by the reasoning of the Thompson panel to hold that the court in the present case erred when it summarily denied the first ground of error. Because Duprey presented a facially sufficient motion, the summary denial of ground one is reversed and this matter is remanded for the court to conduct an evi-dentiary hearing.

The second ground of error asserted that trial counsel was ineffective for failing to advise Duprey of the defense of self-defense. After an evidentiary hearing, the court denied this ground of error. It found that the decision not to pursue the defense was a strategic decision on the part of trial counsel. We are in agreement with the court’s determination. Thus, the denial of relief on ground two is affirmed.

Affirmed in part, reversed in part, and remanded for an evidentiary hearing in accordance with the dictates of this opinion.

WHATLEY and STRINGER, JJ., Concur.


text:
    In re CONFIDENTIAL PARTY.
    No. 2004-B-0275.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re Confidential Party; Disciplinary Counsel; — Plaintiffs); Applying for Joint Petition for Consent Discipline.

ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.

KIMBALL and TRAYLOR, JJ., would accept the consent discipline.

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


text:
    STATE of Louisiana v. Alvin HARVEY and Angelique M. Morris.
    No. 2004-KK-0852.
    Supreme Court of Louisiana.
    April 2, 2004.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 438-689; to the Court of Appeal, Fourth Circuit, No. 2004-K-0339.

Stay denied. Writ denied.

WEIMER, J., would grant stay and writ.


text:
    STATE of Louisiana in the Interest of M.A.
    No. 2004-CJ-0819.
    Supreme Court of Louisiana.
    April 7, 2004.
    Rehearing Denied May 7, 2004.
   In re Social Services Dept, of; — Other; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, City Court of Houma, No. J — 415—02; to the Court of Appeal, First Circuit, No. 2004 CW 0616.

Granted. In its March 9, 2004 order denying relators’ motion to vacate the judgment of contempt, the trial court made it clear for the first time that the December 3, 2003 contempt judgment was criminal in nature. Accordingly, the trial court is ordered to grant relators an appeal from the December 3, 2003 judgment.


text:
    Joseph GALATAS v. EAGLE, INC.
    No. 2004-CC-0851.
    Supreme Court of Louisiana.
    April 7, 2004.
   In re Flintkote Company;- — -Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 03-09414; to the Court of Appeal, Fourth Circuit, No. 2004-C-0515.

Writ denied. Stay denied.


text:
    Ronald K. TRAHAN v. COCA COLA BOTTLING COMPANY UNITED, INC.
    No. 2004-C-0100.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Coca Cola Bottling Co. United, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation, Dist-3, No. 00-08339; to the Court of Appeal, Third Circuit, No. WCA 03-827.

Granted.


text:
    Vayneary WILLIAMSON v. HOSPITAL SERVICE DISTRICT NO. 1 OF JEFFERSON d/b/a West Jefferson Medical Center.
    No. 2004-C-0451.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Williamson, Vayneary; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 570-218; to the Court of Appeal, Fifth Circuit, No. 03-CA-1066.

Granted.


text:
    STATE ex rel. Louis ALEXANDER v. STATE of Louisiana.
    No. 2003-KH-0068.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Alexander, Louis; — Plaintiff(s); Applying for Reconsideration of this Courts order dated January 30, 2004; Parish of Jefferson, 24th Judicial District Court Div. P, No. 97-7259; to the Court of Appeal, Fifth Circuit, No. 02-KH-1142.

Reconsideration denied.


text:
    STATE ex rel. Edward ARRINGTON v. STATE of Louisiana.
    No. 2003-KH-171.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Arrington, Edward; applying for Reconsideration of this Court’s order dated February 6, 2004; Parish of St. Tammany, 22nd. Judicial District Court, Div. B, No. 256227; to the Court of Appeal, First Circuit, No. 02-KW-1494.

Reconsideration denied.


text:
    STATE ex rel. Kevin CHRISTY v. STATE of Louisiana.
    No. 2003-KH-0899.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Christy, Kevin;' — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 7-92-1601; to the Court of Appeal, First Circuit, No. 2002 KW 2706.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Corey A. WILLIS v. STATE of Louisiana.
    No. 2003-KH-0919.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Willis, Corey A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 19,263; to the Court of Appeal, Second Circuit, No. 36,-198-KA.

Denied.


text:
    STATE ex rel. Charles FIELDS v. STATE of Louisiana.
    No. 2003-KH-0921.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Fields, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, No. 98-F1709; to the Court of Appeal, Second Circuit, No. 36859-KH.

Denied.


text:
    STATE ex rel. Troy PARKS v. STATE of Louisiana.
    No. 2003-KH-0922.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Parks, Troy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. G, No. 3266442, 326443; to the Court of Appeal, First Circuit, No. 2003-KW-0113.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Antoine WILLIAMS v. STATE of Louisiana.
    No. 2003-KH-0926.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Williams, Antoine; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 97243; to the Court of Appeal, First Circuit, No. 2002 KA 0065.

Denied.


text:
    STATE ex rel. Ernest BOYD v. STATE of Louisiana.
    No. 2003-KH-0927.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Boyd, Ernest; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 405-888; to the Court of Appeal, Fourth Circuit, No. 2003-K-0263.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Herman LEVY v. STATE of Louisiana.
    No. 2003-KH-0937.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Levy, Herman; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 00-4281; to the Court of Appeal, Fifth Circuit, No(s). 02-KH-949, 03-KH-115.

Denied.


text:
    STATE ex rel. Ivory WILLIAMS v. STATE of Louisiana.
    No. 2003-KH-0942.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Williams, Ivory; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 02-160935; to the Court of Appeal, First Circuit, No. 2003 KW 0140.

Denied.


text:
    STATE ex rel. Vincent A. CUSHINELLO v. STATE of Louisiana.
    No. 2003-KH-0953.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Cushinello, Vincent; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 00-2444; to the Court of Appeal, Fifth Circuit, No. 03-KH-285.

Denied.


text:
    STATE ex rel. William DICKERSON v. STATE of Louisiana
    No. 2003-KH-0962.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Dickerson, William; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 6926-89; to the Court of Appeal, Third Circuit, No. KH 02-00693.

Denied.

KNOLL, J., recused.


text:
    STATE ex rel. Chris Frazier COX v. STATE of Louisiana.
    No. 2003-KH-0970.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Cox, Chris Frazier; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 95-F0231; to the Court of Appeal, Second Circuit, No. 37311-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Russell ALEXANDER v. STATE of Louisiana.
    No. 2003-KH-0972.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Alexander, Russell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 03-161240.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Joe TOMLINSON v. STATE of Louisiana.
    No. 2003-KH-0975.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Tomlinson, Joe; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. C, No. 58,387; to the Court of Appeal, Second Circuit, No. 29,-355-KA.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Kerry JACKSON v. STATE of Louisiana.
    No. 2003-KH-1039.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Jackson, Kerry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 98-1373; to the Court of Appeal, Fifth Circuit, No. 03-KH-334.

Denied.


text:
    STATE ex rel. David Earl ROBERTS v. STATE of Louisiana.
    No. 2003-KH-1094.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Roberts, David Earl; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, No. 96-F0461; to the Court of Appeal, Second Circuit, No. 37286-KH.

Denied.


text:
    STATE ex rel. Marvin COBB v. STATE of Louisiana.
    No. 2003-KH-2562.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Cobb, Marvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 22-048-1; to the Court of Appeal, First Circuit, No. 2003 KW 1163.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. James T. PRYOR v. STATE of Louisiana.
    No. 2003-KH-2761.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Pryor, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. I, No. 93-CR1-55035; to the Court of Appeal, First Circuit, No. 2003 KW 1429.

Denied.


text:
    STATE of Louisiana v. Berry M. CHANDLER.
    No. 2004-KK-0660.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Chandler, Berry; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. 01F0230; to the Court of Appeal, Second Circuit, No(s). 38,700-KW, 38807-KW.

Denied.

CALOGERO, C.J., would not consider; not timely filed.

KIMBALL, J., would not consider; not timely filed.


text:
    STATE of Louisiana v. Timothy L. SHAW.
    No. 2003-KH-0758.
    Supreme Court of Louisiana.
    April 8, 2004.
   In re Shaw, Timothy L.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 93-F1081; to the Court of Appeal, Second Circuit, No. 37248-KH.

Denied.