author: ORFINGER, J.

text:
    Arnell B. LYKES, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2079.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2008.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ORFINGER, J.

Arnell B. Lykes appeals his conviction of fleeing to elude a law enforcement officer at a high speed or with wanton disregard for the safety of persons or property in violation of section 816.1935(3)(a), Florida Statutes (2006). He contends that the jury instruction was fundamentally flawed as it may have deprived him of a unanimous jury verdict. We disagree and affirm.

At the outset, we note that no objection was made at trial to the standard jury instruction given by the court. Jury instructions are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. “To justify not imposing the contemporaneous objection rule, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. In other words, fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Reed v. State, 837 So.2d 366, 370 (Fla.2002) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (citations and internal quotation marks omitted)). In the instant case, we find no error, fundamental or otherwise.

Among other things, the jury instruction required the State to prove beyond a reasonable doubt that “during the course of the fleeing or attempting to flee, the defendant drove at a high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.” Mr. Lykes contends that based on this instruction, some of the jurors may have concluded that he fled at a high speed, while others might have believed that he endangered persons or property while fleeing. If that occurred, Mr. Lykes contends that he was deprived of a unanimous verdict. We disagree. Under the applicable fleeing statute, there are two alternative ways to prove a defendant guilty: by showing that (1) the defendant fled law enforcement officers at high speed, or (2) he fled in any manner demonstrating a wanton disregard for the safety of persons or property. § 316.1935(3)(a), Fla. Stat. (2006). A general guilty verdict, as was returned here, will be set aside only when the conviction may have rested on an unconstitutional ground or a legally inadequate theory. San Martin v. State, 717 So.2d 462, 470 (Fla.1998). Reversal is not warranted when the general verdict could have rested upon a theory of liability without adequate evidentiary support since there was an alternative theory of guilt for which the evidence was sufficient. Id. (citing Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991)).

In San Martin, the supreme court found no error in a general verdict form that did not specify whether the jury found the defendant guilty of premeditated or felony first-degree murder. Similarly, in Euceda v. State, 711 So.2d 122 (Fla. 3d DCA 1998), the district court found no error in a DUI prosecution where the general verdict form did not determine whether the jury concluded that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired or drove with a blood alcohol level of 0.08 percent or higher, either of which would violate the statute. “It is one .thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance-remote, it seems to us-that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.” United States v. Townsend, 924 F.2d 1385,1414 (7th Cir.1991).

For these reasons, we find no error in the jury instruction and affirm the conviction.

AFFIRMED.

GRIFFIN and EVANDER, JJ., concur.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    Timothy WILLIS, Appellant, v. Muriel ROMANO, Appellee.
    No. 5D07-2735.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2008.
    Timothy Willis, Orlando, pro se.
    No Appearance for Appellee.
   LAWSON, J.

Timothy Willis appeals from a final judgment of injunction for protection against repeat violence entered in favor of Muriel G. Romano, alleging reversible error in the trial court’s refusal to allow him to testify when Willis would not take an oath swearing or affirming that the evidence he was about to give would be the truth. Finding no error, we affirm.

“An unsworn witness is not competent to testify.” Houck v. State, 421 So.2d 1113, 1115 (Fla. 1st DCA 1982) (citing Crockett v. Cassels, 95 Fla. 851,116 So. 865 (1928) and § 90.605, Fla. Stat.). Section 90.605, Florida Statutes, requires that each ■witness take an oath before giving testimony. The statute reads:

Before testifying, each witness shall declare that he will testify truthfully, by taking an oath or affirmation in substantially the following form: “Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth?” The witness’s answer shall be noted in the record.

§ 90.605(1), Fla. Stat. (2007). The only exception is that a court may, in its discretion, allow a child to testify without taking the oath, if the court determines that “the child understands the duty to tell the truth or the duty not to lie.” § 90.605(2), Fla. Stat. (2007).

Here, the trial court started the hearing by having his trial clerk administer an oath in substantially the form set forth in section 90.605 to both Willis and petitioner Romano. Romano took the oath. Willis, however, said: “Nope. I believe in the Bible. The Bible says don’t swear by things on heaven and earth.” The court clarified that the clerk had said “swear or affirm” at which point Romano, who had already said “yes,” responded again, “I affirm.” Willis, however, still would not take the oath, simply telling the judge that he would tell the truth (without taking the oath). The judge then explained that: “Unless you take the oath, you’re not going to be giving testimony.” Willis responded, “I understand,” but still did not take the oath. The hearing proceeded with only petitioner Romano’s testimony, and the petition was granted.

On appeal, Willis attaches affidavits and other documents which raise substantial doubt about Romano’s testimony. However, we cannot consider these exhibits. See, e.g., Brand v. Florida Power Corp., 633 So.2d 504, 514 (Fla. 1st DCA 1994) (“It is obvious that matters not presented in evidence during trial cannot be considered for the first time on appeal.”); Thomber v. City of Fort Walton Beach, 534 So.2d 754, 755 (Fla. 1st DCA 1988) (“It is axiomatic that appellate review is confined to the record on appeal.... An appellate court will not consider evidence that was not presented to the lower tribunal because the function of an appellate court is to determine whether the lower tribunal committed error based on the issues and evidence before it.”). With respect to the issue raised, the trial judge correctly followed the law by refusing to allow Willis to testify without taking an oath. Houck, 421 So.2d at 1115; § 90.605, Fla. Stat. (2007).

AFFIRMED.

THOMPSON and TORPY, JJ., concur.


author: PER CURIAM.

text:
    Ronald A. BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2407.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2008.

      Ronald A. Bryan, pro se, Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his “Motion To Allow Credit For Jail Time” filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because appellant is entitled to an additional day of jail credit, we reverse.

On March 2, 2004, after a violation of probation, appellant was sentenced in case number 03-0556G to five years’ imprisonment with credit for 204 days served. He was further sentenced on April 20, 2004, to five years’ imprisonment with credit for 253 days served in case number 05-2561G. In the instant motion, appellant alleges that he is entitled to 273 days of jail credit in both cases. While this blanket assertion is incorrect, the trial court correctly noted that appellant is entitled to credit for 254 days served from August 11, 2003, to April 20, 2004, in ease number 03-2561G. The trial court, however, failed to grant the additional day of jail credit. Appellant is entitled to jail credit for each day he served in the county jail prior to sentencing. See Griffin v. State, 828 So.2d 1087 (Fla. 1st DCA 2002).

We therefore reverse the trial court’s summary denial of the appellant’s motion for jail time credit and remand for the trial court to grant appellant an additional day of jail credit in case number 05-2561G.

REVERSED AND REMANDED.

BROWNING, C. J., VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Victor FUNDORA, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2620.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2008.

      Victor Fundora, pro se, Appellant.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion, in which he asserts that he was improperly sentenced to drug-offender probation although none of the underlying convictions were for offenses contained within chapter 893, Florida Statutes. A defendant may not be sentenced to drug-offender probation unless he has been convicted of an enumerated chapter 893 offense. See Parker v. State, 839 So.2d 736, 737 (Fla. 1st DCA 2003).

We therefore reverse the trial court’s order and remand for the court to attach records conclusively refuting the appellant’s claim or to resentence the appellant without the drug-offender probation.

REVERSED AND REMANDED.

BROWNING, C. J., VAN NORTWICK and ROBERTS, JJ., concur.


text:
    James E. PHILLIPS, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2916.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2008.
    James E. Phillips, III, pro se, Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order denying his Florida Rule of Criminal Procedure 3.800(a) motion. He pled guilty to possession of a firearm by a convicted felon and battery on a law-enforcement officer, for which he was sentenced as a habitual felony offender to concurrent terms of 20 years’ imprisonment and 10 years’ imprisonment, respectively. In his motion, the appellant claimed his sentences were illegal because he lacks the sequential predicate offenses required by section 775.084(5), Florida Statutes (Supp.1996). The record on appeal demonstrates that all the appellant’s prior convictions were entered on the same day during the same sentencing proceedings. See State v. Richardson, 915 So.2d 86 (Fla.2005) (rejecting the argument that a defendant is “sentenced” only after he violates the terms of his probation and supervision is revoked). Because the trial court’s attachments do not conclusively refute the appellant’s claim, we reverse and remand this case for resentencing. See Kuzminski v. State, 848 So.2d 1229 (Fla. 2d DCA 2003) (reversing and remanding for resentencing where the trial court’s attachments did not conclusively refute the appellant’s claim that he lacked predicate offenses to be sentenced as a habitual felony offender).

REVERSED AND REMANDED.

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


author: STONE, J.

text:
    Christopher REID, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3745.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.

      Miguel M. de la 0 of de la 0, Marko, Magolnick & Leyton, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Reid appeals his judgment and sentence for resisting an officer with violence and disorderly conduct, challenging the seating of an objectionable juror. We conclude there is reasonable doubt about the impartiality of the prospective juror and his ability to be fair.

The crime charged was committed in the course of a fight in a sports bar between Reid and an undercover officer. Based on the juror’s responses, defense counsel twice asked the trial court to remove the juror for cause.

The voir dire as to the juror in question proceeded:

JUROR: I believe I can be fair, although I’m not a big fan of alcohol related issues.
THE COURT: Is there something that you’ve experienced or that family or friends have experienced that leads you to make that statement?
JUROR: Personally, I’ve had a few confrontations. I try to avoid places like sports bars and big crowds. I have had a couple of confrontations in the past, yeah. Both here and back in Venezuela.
THE COURT: ... would you be able to set aside your personal experiences and make your decision only on the evidence that you hear in the trial?
JUROR: I’ll try.
THE COURT: ... everybody comes into a courtroom as prospective jurors with certain feelings about issues.... The question really is understanding how you feel, if you can follow your instructions and base your decision on the evidence,.... But do you feel more certain knowing what your obligation is that you could be fair?
JUROR: Yes, sir.
[DEFENSE COUNSEL]: Just based on the evidence. Do you feel there would be any sort of tendency or inclination on your part to find a police officer more credible or believable because of the fact that he is a police officer?
JUROR: I would probably favor a little bit more the officers, especially if there’s alcohol involved. I’m just being complete honest. That’s their job.
To deal with that kind of situation. So that’s how I feel.
[DEFENSE COUNSEL]: Okay. So you have a tendency or sort of a little bit of an inclination to favor the police officer?
JUROR: Especially in a setting like this one. Yeah.
[DEFENSE COUNSEL]: All right. So what you’re saying is although you would try to lay those biases or feelings aside, you do have some doubt in your mind as to whether you’d give the officer great weight?
JUROR: If there were alcohol involved, and if there’s not — if probably your client was not 100 per cent in control.
I mean alcohol basically.

Reid used one of his peremptory challenges to excuse the juror from the jury. When he ran out of peremptory challenges, Reid unsuccessfully requested an additional peremptory based on the court’s denial of the cause challenge. Reid objected to the seating of the panel and advised the trial court that had he been granted an additional peremptory, he would have used it to strike the specified juror.

It is well established that a juror should be excused for cause if there is any reasonable doubt about his ability to render an impartial verdict. E.g., Singleton v. State, 783 So.2d 970, 973 (Fla.2001); Juede v. State, 837 So.2d 1114, 1115 (Fla. 4th DCA 2003). “A juror is not impartial when one side must overcome a preconceived opinion in order to prevail.” Hill v. State, 477 So.2d 553, 556 (Fla.1985).

While a trial court is afforded great discretion in ruling on challenges of jurors for cause, close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving doubt as to impartiality. Slater v. State, 910 So.2d 347, 348 (Fla. 4th DCA 2005); Peters v. State, 874 So.2d 677, 679 (Fla. 4th DCA 2004).

In Slater, this court summarized the point as follows:

During voir dire, the juror said he believed ‘the testimony of a police officer carries a little more weight’ because officers are ‘trained to be observant, and they are apt to see things and to pick out more things that we miss.’ Defense counsel asked whether he would place greater credence on the testimony of a police officer than of a lay person, to which the juror said ‘yes.’ Defendant moved to strike him for cause, asserting that he was demonstrably biased. The trial court denied the challenge.
The juror’s remarks in this case cannot be reasonably distinguished from those made n Juede. Such thinking at a minimum raises a reasonable doubt as to a potential juror’s ability to remain impartial and unbiased.
Defendant is entitled to an impartial jury, not one with members who favor police testimony.

Slater, 910 So.2d at 348.

In Juede, this court held that the trial court erroneously denied a for cause challenge of a juror who agreed that the fact that a witness was a police officer would affect his trust in the testimony. 837 So.2d at 1115.

Likewise, in Scott v. State, 825 So.2d 1067 (Fla. 4th DCA 2002), this court found reasonable doubt was created by a juror’s unguarded admission that the juror would give more weight to the testimony of police officers:

In applying these principles to the ease before us, we must conclude that, here, there is a reasonable doubt as to Ms. Ockerman’s ability to be fair and impartial when it comes to police officers. It is true that when the judge asked “[w]ould you — if police officers come in and testify, would you, uh, listen to their testimony, observe their demeanor and make up your own mind after you hear them and see them,” Ockerman responded that she wouldn’t say that just because they were police officers what they said was true. This comment, however, must be viewed in the context of her earlier remark that she “somewhat” believes that police officers are more credible, the fact that this response came only after she had been separately called back and asked leading questions, and her subsequent statement that “it’s just kind of hard not to, you know, give them just a tiny bit more respect because they do protect the people.”

Id. at 1070.

Here, there was similar reasonable doubt as to the jm-or’s impartiality. The state makes no attempt to distinguish these cases, but rather, argues that the trial court was in a better position to evaluate the juror’s responses, and that the juror admitted only a bias in favor of sober police witnesses and against witnesses who were drinking. Yet, the juror’s voir dire responses appear to refute the state’s claim. The juror was asked:

Just based on the evidence. Do you feel there would be any sort of tendency or inclination on your part to find a police officer more credible or believable because of the fact that he is a police officer?

His response was that he would, in fact, “favor a little bit more the officers.” The juror then stated that he would believe a police officer, “especially if there’s alcohol involved. I’m just being completely honest.” When defense counsel clarified the juror’s response, the juror again made it clear that “especially” in this particular case, the juror would be biased in favor of the police officer.

[DEFENSE COUNSEL]: Okay. So you have a tendency or sort of a little bit of an inclination to favor the police officer? JUROR: Especially in a setting like this one. Yeah.

He further stated that if the defendant had been drinking alcohol, he doubted he could set aside his bias in favor of the police officer:

[DEFENSE COUNSEL]: All right. So what you’re saying is although you would try to lay those biases or feelings aside, you do have some doubt in your mind as to whether you’d give the officer greater weight?
JUROR: If there were alcohol involved, and if there’s not — if probably your client was not 100 percent in control.
I mean alcohol basically.

It appears from the responses that he will always “favor a little bit more the officers,” but will favor them even more where “there is alcohol involved.”

The record reveals that the juror never recanted his answers about favoring police officers, and no attempts were made to rehabilitate the potential juror. Further, given that the officer in this case is the victim and the principal witness, the harm to a defendant from having a juror seated who exhibits a pro-police bias is obvious.

Because reasonable doubt appears as to the juror’s impartiality, the judgment and sentence are reversed, and we remand for a new trial.

The other issue raised on appeal is moot. On re-trial, we draw the trial court’s attention to the recent supreme court opinion in Polite v. State, 2007 WL 2790770, 973 So.2d 1107 (Fla. Sept. 27, 2007).

STEVENSON, J. and TRAWICK, DARYL E., Associate Judge, concur.


author: KLEIN, J.

text:
    Roshan RAMKHALAWAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1046.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.

      Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Katherine Y. Melntire, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of three counts of capital sexual battery and other lesser charges. He argues that his convictions must be reversed because they are based on the testimony of a witness who had made prior statements which were inconsistent with her statements at trial. The cases on which appellant relies, however, are distinguishable because in those cases the witnesses had recanted at trial, and the only substantive proof of guilt consisted of prior statements. We affirm.

The convictions were all based on the testimony of the victim that appellant, a relative, had performed various sexual acts on her over a number of years. Finally, when the victim was eleven, and her mother became aware of what had happened, the victim gave the police a statement describing the events. Several months later she spoke to a prosecutor and reaffirmed her statement, but two weeks later recanted her accusations during a hearing. At the hearing, at which her whole family was present, she stated that it was someone other than the appellant who had molested her. It is this recantation on which appellant relies for his argument that her later testimony at trial, which was consistent with her first two statements, but inconsistent with her recantation, was insufficient to establish that appellant had committed the crimes. The cases on which appellant relies, however, are distinguishable, because in those cases the proof of guilt was based on pretrial statements which were inconsistent with the witness’s trial testimony. State v. Moore, 485 So.2d 1279 (Fla.1986) (prior inconsistent statements which are the only substantive evidence of guilt, where witnesses recant at trial, are insufficient to sustain a conviction). Beber v. State, 887 So.2d 1248 (Fla.2004). In this case the trial testimony of the victim was consistent with guilt and sufficient to sustain the convictions.

The victim in this case testified that her recantation before trial was as a result of being pressured to recant by her father and other members of her family. This was confirmed by a letter her father had written her, which was in evidence. The essence of the letter was that, if the victim did not recant, he was going to kill himself. Appellant argues that this letter was inadmissible because it was hearsay. The letter, however, was not being admitted to demonstrate that what was said in the letter was true, but only to show the effect the letter had on the recipient. 194th St. Hotel Corp. v. Hopf, 383 So.2d 739 (Fla. 3d DCA 1980) (evidence of an out-of-court statement to show its effect upon the mental attitude of the person who hears it is admissible); Lombardi v. Flaming Fountain, Inc., 327 So.2d 39 (Fla. 2d DCA 1976) (witness could testify as to what he overheard in order to prove that he heard it, where it was not being admitted to show that the statement was true). Appellant’s argument that the letter is inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), is also without merit, because the letter was not testimonial under Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

We have considered the other points raised by appellant to be without merit and accordingly affirm his convictions.

POLEN and MAY, JJ., concur.


text:
    Christine HUNGERFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-666.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.
    Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   KLEIN, J.

Appellant, a department store employee, was convicted of grand theft. She argues that a log prepared daily by the store manager for the cash registers was not admissible in evidence as a business record under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We affirm.

Appellant was responsible for gathering money from each of the cash registers and preparing deposits. The document which is in dispute is known as an “over/short log,” and it is kept in the normal course of business by each store manager. The log is filled out every day by the store manager, and, when it does not balance, it could indicate theft or something else. When the log for this store showed losses of $150, an internal investigation was started which culminated in appellant’s arrest. The log was introduced into evidence as a business record through the testimony of a witness who was the loss prevention officer for twenty-six stores. She was not the person who actually prepared the log.

The trial court admitted the log under the business records exception to the hearsay rule, but appellant argues that this was error under Crawford. Appellant recognizes that Crawford, in which the Court held inadmissible “testimonial” out-of-court statements, such as a statement given to an officer investigating the crime, does not preclude business records from being admitted in evidence. Appellant argues, however, that the log in this case is precluded by Crawford because the primary purpose of the log is to prove a crime. In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2274, 165 L.Ed.2d 224 (2006), the Court elaborated that a statement is “testimonial” and not admissible under Crawford where the “primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

In Pflieger v. State, 952 So.2d 1251 (Fla. 4th DCA 2007), we held that the annual inspection report of a breath testing machine was admissible in evidence in a DUI case without the testimony of the technician who performed the test. The inspection report was not prepared as part of an investigation but rather was for the purpose of making sure the machine was operating properly. It was therefore not inadmissible under Crawford. We stated: “[documents establishing the existence or absence of some objective fact, rather than detailing the criminal wrongdoing of the defendant, are not ‘testimonial.’ ” Pflieger, 952 So.2d at 1254. See also United States v. Bahena-Cardenas, 411 F.3d 1067, 1074-75 (9th Cir.2005) (holding that a warrant including a statement that an officer witnessed defendant’s departure from the country was nontestimonial under Crawford, as it involved a “routine, objective cataloguing of an unambiguous factual matter.”)

In this case, the testimony demonstrated that the log was prepared on a daily basis for each register based on internal operating procedures of the company, in order to show an objective fact, a discrepancy. We accordingly agree with the state that the log was properly admitted as a business record and affirm.

POLEN and MAY, JJ„ concur.


author: WARNER, J.

text:
    Jonathan GALLO, Petitioner, v. Al LAMBERTI, Sheriff of Broward County, Respondent.
    No. 4D07-4171.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.
    Charles D. Barnard of Charles D. Barnard, P.A., Wilton Manors, for petitioner.
    No appearance required for respondent.
   WARNER, J.

We deny the petition for writ of habeas corpus in which petitioner claims that he is entitled to pretrial release. Although he claims that the proof of the second-degree murder charge against him was neither evident nor was the presumption of guilt great, as required by article I, section 14 of the Florida Constitution, see State v. Arthur, 390 So.2d 717 (Fla.1980), we conclude that the trial court did not abuse its discretion in determining that the state met its burden of proof under the constitution and deny the issuance of the writ.

According to the probable cause affidavit, the body of a female victim was discovered near a school in Hollywood. Police received a tip that petitioner Jonathan Gallo had admitted to his fiancée, Shannon Traína, that he did “something terrible.” The detective met with Traína who gave a taped statement that, late one night Gallo came home from Hollywood with blood all over him, saying he did something “very bad” to someone. Gallo told Traína that the victim was a man and that he had left on his own accord. Gallo took his bloody clothes, some twine and tape that also contained blood, and put them all in the washing machine. The two then went to Wal-Mart to get cleaning supplies, including bleach, which Gallo put on the seat of his truck to remove the various blood stains. Gallo also threw away a small handgun in the Wal-Mart trash bin.

The detective eventually met up with Gallo and questioned him. Gallo admitted to being in Hollywood and picking up an unknown woman in his truck. He took the woman down to the intracoastal and then “stated he told the female that he didn’t have any money and she became irate and began to punch and scratch him on his face.” According to Gallo’s statement, he reached into the center console of his truck and pulled out a gun and began to strike her in the head with its butt. He then drove to a school, removed the woman from the his truck, and allegedly performed CPR.

In the investigative report, the detectives also interviewed a witness who saw Gallo’s vehicle the night before the murder in the exact spot where the victim’s body was dumped.

The victim was found lying on the dirt with her shirt and bra pulled up revealing her breasts and her pants pulled down exposing her buttocks. The incident report also noted that “around the decedent’s right wrist there was a piece of twine, approximately five feet in length, tied in a loop.” The cause of death was “blunt force trauma causing blood loss from multiple lacerations to the scalp.” The medical examiner also noted a bite mark on the victim’s breast.

After being in jail for nearly eight months, Gallo’s attorney moved to set bail, claiming the evidence would not support a conviction for second-degree murder, but could support manslaughter, based on the claim that the victim first committed an unlawful act, battery. Because Gallo was supposedly resisting the battery, the killing was manslaughter and thus there was a presumption for bail.

The court reviewed the probable cause affidavits and investigative reports as well as multiple photographs of the victim. Traína also testified that Gallo appeared to have a few scratch marks on his face when she saw him after the incident. In addition to the investigation records, Gallo’s attorney provided records that the victim had been arrested on prostitution charges in the past and had been released the evening of her murder from the Hollywood Memorial Hospital from a Marchman Act confinement for alcoholism or drug use. He also noted that the victim had a history of several violent acts. Based upon all of the evidence the court determined that the proof was evident and the presumption of Gallo’s guilt was great. Therefore, it denied pretrial release.

State v. Arthur, 390 So.2d 717 (Fla.1980), sets forth the state’s burden to satisfy the constitutional requirement when seeking to deny bail to a defendant:

The state’s burden, in order to foreclose bail as a matter of right, is to present some further evidence which, viewed in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilty.... The state can probably carry this burden by presenting the evidence relied upon by the grand jury or the state attorney in charging the crime. This evidence may be presented in the form of transcripts or affidavits. If, after considering the defendant’s responsive showing, the court finds that the proof is evident or the presumption great, the court then has the discretion to grant or deny bail.

Id. at 720 (emphasis supplied). We discussed this burden of proof in Elderbroom v. Knowles, 621 So.2d 518 (Fla. 4th DCA 1993). We noted that “where the state’s evidence is arguably sufficient to convict, but is contradicted in material respects such that substantial questions of fact are raised as to guilt or innocence of the defendant, then a trial court may properly find that the proof of guilt is not evident or the presumption of guilt is not great.” Id. at 520 (emphasis supplied).

The question in this case is whether Gallo’s statement that he struck the victim after she first attacked him raises substantial questions of fact as to his guilt of second-degree murder. That crime is defined as “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual_” § 782.04(2), Fla. Stat.

The state’s evidence showed the brutal killing of the victim with probable sexual overtones. She was partially disrobed with twine around her wrist. She died from a savage beating with a blunt instrument. Gallo explained that she attacked him first. However, even if she scratched his face, we think that the state’s evidence shows that the force he used against her was clearly excessive and could not support a claim of self-defense. Nor could it support only a lesser degree of murder. The state provided sufficient proof of second-degree murder. Moreover, Gallo’s statement does not explain the victim’s partially undressed state, the bite mark on her breast, or the twine around her hand, which appears similar to blood soaked twine that he washed with his own clothes. These are all highly incriminating and tend to impeach his version of events.

Therefore, Gallo’s statement does not raise substantial questions of fact which would reduce his guilt, although with further discovery and proof, facts may exist which ultimately are more favorable to him. The trial court, however, found that the state had sustained its burden, and we find that it did not abuse its discretion in this regard.

Petition denied.

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


author: NORTHCUTT, Chief Judge.

text:
    Roderick CHILDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-5790.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.

      Roderick Childers, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

Roderick Childers seeks a writ of certio-rari to quash the order that denied his motion for enlargement of time and dismissed his motion for modification of sentence. We grant the petition.

In 2004, Childers was convicted of robbery, and he was sentenced to thirty years in prison as a habitual violent felony offender with a ten-year minimum mandatory term. His direct appeal was affirmed. Childers v. State, 932 So.2d 1111 (Fla. 2d DCA 2006) (table decision). The appellate mandate issued on June 30, 2006, and it was received by the circuit court clerk on July 3, 2006. On August 17, 2006, Childers filed a motion for modification of sentence under Florida Rule of Criminal Procedure 3.800(c). See Haag v. State, 591 So.2d 614 (Fla.1992) (applying mailbox rule to determine filing date for inmate pleadings). As an initial matter, we note that the court lacked authority to modify the minimum mandatory term, but it could consider modifying the remaining portion of the sentence. See Fla. R.Crim. P. 3.800(c) (“This subdivision shall not be applicable to those cases in which the death sentence is imposed or those cases in which the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion.”); see also State v. Paulino, 696 So.2d 425 (Fla. 2d DCA 1997) (finding no authority for circuit court to modify minimum mandatory portion of sentences but separately considering court’s ruling on portion of sentences in excess of minimum mandatory terms).

Rule 3.800(c) contains strict time limits that require a ruling during one of several sixty-day windows. In Childers’ case, the rule required a ruling within sixty days after the circuit court clerk received the appellate mandate. But under Florida Rule of Criminal Procedure 3.050, a circuit court may extend the time for ruling on these motions. Abreu v. State, 660 So.2d 703 (Fla.1995) (noting that court, either on motion or sua sponte, may enlarge time to rule on 3.800(c) motion). For this reason, when moving to modify his sentence Childers also filed a motion for enlargement of time in case the circuit court was unable to rule on his modification request before the sixty-day period expired. Almost three months later, the circuit court ruled on the motions. It denied the motion for enlargement of time and dismissed the motion for modification of sentence, concluding that the sixty-day period allowed under rule 3.800(c) had expired.

This court has granted relief under very similar facts. For example, in Cunniff v. State, 950 So.2d 1255 (Fla. 2d DCA 2007), we quashed an order that dismissed a motion as untimely although there were nine days remaining in the window when the motion was filed. By contrast, Child-ers filed his motion with fifteen days remaining, and he included a motion for enlargement of time. As in Cunniff, “[u]n-der these circumstances, the trial court should have either considered the motion on its merits or extended the time for considering the motion.” Id. at 1257; see also McCormick v. State, 961 So.2d 1099 (Fla. 2d DCA 2007) (granting relief from dismissal of rule 3.800(c) motion where court had three days to rule before time expired). Accordingly, we quash the order dismissing Childers’ motion.

We are not persuaded by the State’s argument that Childers must bear responsibility for the court’s failure to timely rule on the merits because he failed to set the motions for a hearing. In rejecting this argument, we certify conflict with the line of cases from the Fourth District, which has added a requirement for inmates to schedule hearings on rule 3.800(c) motions. In Grosse v. State, 511 So.2d 688 (Fla. 4th DCA 1987), the court affirmed the denial of a timely .filed motion for reduction of sentence when no hearing was scheduled and no action was taken within the sixty-day window. The court posited that the pro se inmate had a duty to schedule a healing under Florida Rule of Criminal Procedure 3.060. See also State v. Woodard, 866 So.2d 120, 121 (Fla. 4th DCA 2004) (“It is the sole responsibility of the movant to see that the motion is scheduled for a hearing within the window period.”); Hussey v. State, 739 So.2d 123 (Fla. 4th DCA 1999); cf. State v. Grandstaff 927 So.2d 1035 (Fla. 4th DCA) (affirming order modifying sentence when motion was timely filed, inmate was diligent in seeking a hearing, but hearing was held after sixty-day window through no fault of inmate; certifying question of great public importance), review denied, 935 So.2d 1220 (Fla. 2006). We find nothing in the rules of criminal procedure that requires a hearing on a rule 3.800(c) motion, and we would expect that courts routinely rule on these motions without hearings. Accordingly, we grant the petition, quash the order on review, and certify conflict with Grosse and its progeny.

Having disposed of the instant case, we pause to address one additional matter. As previously stated, the rule provides that a court may consider a motion to modify sentence within sixty days of certain events. Unlike Florida Rule of Criminal Procedure 3.850, which contains a time limit for the defendant’s filing of the motion but not for the court’s disposition, rule 3.800(c) requires the court to rule within the applicable sixty-day window. See Abreu, 660 So.2d 703. The supreme court has explained the time limit as a matter of respect for the separation of powers. “Under our tripartite system of government there must come a time when the judiciary’s power to reduce a lawful sentence ends and vests in the executive department.” Id. at 704. Be that as it may, the current state of the law is effectively extending the life of these motions, resulting in more delay rather than less.

A rule 3.800(c) motion is directed to a circuit court’s absolute discretion, and the court’s ruling cannot be appealed. Arnold v. State, 621 So.2d 503 (Fla. 5th DCA 1993). But it is subject to certiorari review “in an extraordinary case.” Moya v. State, 668 So.2d 279, 280 (Fla. 2d DCA 1996). When the issue is whether a motion to modify a sentence should have been dismissed as untimely, however, the extraordinary has become ordinary. Appellate courts are routinely called upon to determine whether the motions should have been dismissed. Most of these review proceedings, and the delay occasioned by them, could be eliminated by amending the rule to provide that the motion must be filed within a stated period and the circuit court must determine the motion within a reasonable time. See Wilson v. Salomon, 923 So.2d 363, 367 (Fla.2005) (adopting interpretation of civil procedure rule to decrease litigation over rule’s purpose and foster smooth administration of trial court’s docket).

Petition granted; order quashed; conflict certified; remanded.

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


author: KELLY, Judge.

text:
    Danny L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1058.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.
   KELLY, Judge.

Danny L. Johnson appeals from the denial of a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

Johnson effectively alleges that a discrepancy exists between the oral pronouncement of the court and his written sentences. He asserts that the court pronounced concurrent terms for his offenses but that the written sentences resulted in consecutive terms. In concluding such a claim is cognizable under rule 3.800(a), the Florida Supreme Court recently summarized its prior holdings on the issue:

This Court has held that a court’s oral pronouncement of a sentence controls over the written sentencing document. When the written document results in a sentence that is more severe than the sentence announced in court, this Court has considered it a potential violation of the constitutional protection against double jeopardy. In effect, under our decisions ... we have determined that a written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence. Indeed, we have restricted the authority of a trial court to enter a conflicting written sentence in this manner. Accordingly, no court has the authority to enter such a sentence, since the oral pronouncement controls and constitutes the legal sentence imposed. For this reason, we agree ... that a motion alleging a discrepancy between the oral and written sentences should be cognizable in a rule 3.800(a) proceeding.

Williams v. State, 957 So.2d 600, 603 (Fla.2007) (internal citations omitted).

In denying Johnson’s motion, the post-conviction court focused on the sentencing court’s discussion of the potential effect that an impending sentence for a conditional release violation might have on Johnson’s prison term. The sentencing court had expressed some confusion about its authority to direct that incarceration arising from the conditional release violation be served concurrently with the sentences imposed on the new offenses. We note in passing that sentencing courts have that authority. See Eblin v. State, 743 So.2d 94 (Fla. 2d DCA 1999); Jones v. State, 696 So.2d 429 (Fla. 2d DCA 1997); Kirkland v. State, 633 So.2d 1138 (Fla. 2d DCA 1994); Bruce v. State, 679 So.2d 45 (Fla. 3d DCA 1996).

The postconviction court, however, did not address the alleged discrepancy between the written sentences and the unambiguous oral pronouncement that the terms for the new offenses run concurrently with each other. Because the written sentences are not in the record before us, we are unable to resolve the question. On remand, the postconviction court shall review the record to determine whether there is a discrepancy between the court’s pronouncement and the written sentencing orders. If it finds a discrepancy, it shall correct the written sentence to conform to the oral pronouncement. See Guerra v. State, 927 So.2d 248, 249 (Fla. 2d DCA 2006). If the postconviction court again denies Johnson’s claim, it must attach portions of the record that conclusively refute the allegation. Id.

Reversed and remanded.

STRINGER and WALLACE, JJ„ Concur.


author:
PER CURIAM.
      CALOGERO, C.J., WEIMER, J.,

text:
    In re Walter J. LeBLANC, Jr.
    No. 2007-B-1353.
    Supreme Court of Louisiana.
    Nov. 27, 2007.
    Rehearing Denied Feb. 1, 2008.
    Charles Bennett Plattsmier, Baton Rouge, for applicant.
    McCranie, Sistrunk, Anzelmo, Hardy Maxwell & McDaniel, Thomas P. Anzelmo, Sr., Metairie, Walter J. LeBlanc, Jr., for respondent.
   |,ATTORNEY DISCIPLINARY

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Walter J. LeBlanc, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In 2001, respondent represented the plaintiff in a Jones Act ease, Temple v. Atwood Oceanics, Inc., that was randomly allotted to Division “C” of the 24th Judicial District Court for the Parish of Jefferson, Judge Alan Green presiding. Following a bench trial in March of that year, Judge Green rendered judgment on September 20, 2001 awarding the plaintiff $1.5 million in damages. Thereafter, the parties reached an agreement that the judgment would not be appealed. The judgment was satisfied by the defendant in a dismissal of the civil proceedings on February 4, 2002.

In March 2002, Judge Green telephoned respondent several times to request that he make a contribution to the campaign of his niece, Jalila Jefferson, who was then running for a seat in the Louisiana House of Representatives. On April 3, 2002, days before the general election, respondent went to Judge Green’s office and gave |ahim an envelope containing $800 in cash, which respondent intended as a contribution to Ms. Jefferson’s campaign. The exchange of cash, as well as the conversation between respondent and Judge Green, was captured on videotape by the FBI in the course of its audio and video surveillance of Judge Green’s office:

Respondent: Uhm, eight hundred, alright.
Judge Green: Alright.
Respondent: Uh and I haven’t talked to Phil [referring to respondent’s law partner]. Phil is in Disneyland coming back today and I’ll have more for you.
Judge Green: Okay. Well election’s Saturday.
Respondent: Oh it’s this Saturday? Judge Green: Yeah.
Judge Green: Yeah yeah so hopefully things go well.
Respondent: Yeah.
Judge Green: I won’t be here but I’ll be you know I’ll be checking it on TV and on the phones.
Respondent: (Unintelligible)
Judge Green: Yeah sometimes I worry because a lot of folks don’t realize you know that I’m very restricted as to what I can do.
Respondent: (Unintelligible)
Judge Green: Yeah I had to explain that to my son you know uh because he’s doing a lot of campaign work for her and uh now he understands. And her father understands that’s why he just made a little personal call to me and I’ve gotten some good response from some folks so at least you know she’ll know 13we were able to help her out a little bit. Appreciate [it] man. Respondent: (Unintelligible)

This videotape was subsequently featured in Judge Green’s trial on federal bribery and mail fraud charges. As such, respondent’s actions generated considerable adverse publicity for both himself and for the legal profession in Louisiana.

Upon request by Judge Green, respondent made another contribution to Ms. Jefferson’s campaign during the subsequent runoff election. This contribution, in the amount of $1,000, was made in the form of a check from respondent’s law firm dated April 24, 2002.

DISCIPLINARY PROCEEDINGS:

Following its investigation, the ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(f) (knowingly assisting a judge in conduct that is a violation of applicable Rules of Judicial Conduct or other law).

Respondent answered the formal charges and generally admitted the factual allegations set forth therein. Respondent pointed out, however, that Judge Green’s request for a campaign contribution was made more than six months after the entry of judgment in the Jones Act case subject of the formal charges, and that at no time |4did Judge Green “suggest, infer, or intimate any relationship between the decision entered in September 2001 and the request for a campaign contribution for his niece.” Respondent also admitted that in retrospect, he should not have assisted Judge Green in conduct that violated the Code of Judicial Conduct; however, he stated that he “was not mindful of the prohibition” at the time he made the campaign contribution. Respondent maintained that his “lapse was unintentional and in no way consciously made.” Finally, respondent admitted the rule violations alleged in the formal charges.

Hearing Committee Report

This matter proceeded to a hearing in mitigation. Thereafter, the hearing committee filed its report with the disciplinary board. Two members of the committee recommended that respondent be suspended from the practice of law for one year, with six months deferred, while the third committee member recommended a one-year suspension, with no portion of the suspension deferred.

The hearing committee adopted the stipulated facts and acknowledged respondent’s admission that he violated Rules 8.4(a), 8.4(d), and 8.4(f) of the Rules of Professional Conduct. After considering the evidence and testimony presented at the hearing, the committee rejected respondent’s contention that his misconduct was negligent:

Although there is no question in the mind of all the panel members that Mr. LeBlanc is a man of good moral character and a competent attorney, the panel does find that his assertion that he did not know the rule he was violating when he made a cash contribution to Judge Green is without merit. The videotape of April 3, 2002 clearly substantiates that both Judge Green and respondent knew Isthe rule that they were violating and in fact discussed that the contribution that Mr. LeBlanc was making was outside the parameters of the rule.... The aforementioned videotape establishes actual knowledge.

Based on these findings, the committee determined that respondent’s mental state was knowing; therefore, the applicable baseline sanction is suspension under the ABA’s Standards for Imposing Lawyer Sanctions, In mitigation, the committee recognized the absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure to the disciplinary agency and a cooperative attitude toward the proceedings, good character and reputation, and remorse. The committee did not discuss in its report whether any aggravating factors are present.

The committee concluded:
The panel finds that the actions of the respondent were not the result of an act of omission or negligence. The respondent not only should have known that his actions were wrong but clearly did know they were wrong at the time that he made the cash payment to Judge Green. His conduct has become the subject of media attention and was also the subject of federal criminal proceedings against Judge Alan Green. Clearly, his conduct has reflected upon the public’s perception of the legal community-

Under these circumstances, two members of the committee recommended that respondent be suspended from the practice of law for one year, with six months deferred. The third member of the committee recommended that respondent be suspended from the practice of law for one year.

| (¡Respondent filed an objection to the hearing committee’s report and recommendation, arguing that the committee erred in finding his misconduct was knowing. Respondent asserted that the appropriate sanction for his negligent misconduct is a public reprimand or, at most, a fully deferred suspension from the practice of law. The ODC maintained its position that an actual period of suspension is warranted, and suggested that a period of one year and one day, which would necessitate respondent’s filing an application for reinstatement, is appropriate for the knowing misconduct at issue.

Disciplinary Board Recommendation

The disciplinary board found the hearing committee’s factual findings are not manifestly erroneous and adopted same. Specifically, the board adopted the committee’s finding that respondent’s misconduct was “knowing.” As the parties have agreed that respondent violated Rules 8.4(a), 8.4(d), and 8.4(f), the board agreed that the committee was correct in finding these rules were violated. Rule 8.4(f) prohibits a lawyer from knowingly assisting a judge in conduct that is a violation of applicable Rules of Judicial Conduct or other law. In this case, respondent made a contribution to the Jefferson campaign in response to Judge Green’s solicitation of the contribution. In so doing, respondent assisted Judge Green in violating Canon 7(a)(1)(d) of the Code of Judicial Conduct. Respondent’s conduct was also prejudicial to the administration of justice, in violation of Rule 8.4(d). By making prohibited contributions at the request of the judge, respondent ignored the Rules of Professional Conduct, the Canons of the Code of Judicial Conduct, and Louisiana campaign finance laws, which at the time provided that no cash contribution over $100 could be made to a candidate. Furthermore, the board agreed with the ODC’s |7suggestion that respondent’s behavior was largely motivated by his desire to keep Judge Green happy and to nourish an ongoing friendship and personal relationship, particularly in light of the fact that the judge had recently ruled in favor of respondent’s client with a substantial verdict in a case that had substantial merit. Such conduct is prejudicial to the administration of justice in that it obstructs the proper function of the judicial process and erodes the public’s trust in the legal profession and the judiciary.

The board found that respondent violated duties owed to the legal system and to the profession. His conduct was knowing, and actual harm to the reputation of the legal system and to the profession has occurred. The baseline sanction for respondent’s misconduct is a period of suspension.

The board found the record supports the aggravating factor of substantial experience in the practice of law (admitted 1988). In mitigation, the board recognized the following factors: absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure to the disciplinary agency and a cooperative attitude toward the proceedings, good character and reputation, and remorse.

The board observed that there are no prior discipline cases involving misconduct similar to respondent’s and in which a Rule 8.4(f) violation was found. However, the board noted that In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548, offers guidance in this matter. In Bolton, the attorney allegedly sought to give a judge a campaign contribution in return for special favor from the judge in a case pending in his court. The attorney approached the judge offering the campaign contribution, instead of the situation at hand, where the judge approached respondent asking for a contribution. Also, and very significantly, the campaign contribution in Bolton was later characterized as an alleged bribe. Here, no bribery charges have been alleged Ragainst respondent. Formal charges were brought against Bolton alleging, among other rule violations, a violation of Rule 8.4(f). Bolton filed an answer to the charges, denying any professional misconduct and maintaining there was a “substantial misinterpretation of his intentions, caused by his failure to properly articulate his wishes to [the judge] and his feelings to the Court.”

In reviewing the matter, this court found that the hearing committee was not clearly wrong when it determined that Bolton did not intend to offer a bribe to the judge or otherwise influence the outcome of the case. The court also commented on the importance of the hearing committee’s findings in disciplinary matters. The court then found that while Bolton’s conduct was negligent, and not intentional, the record supported the conclusion that he engaged in ex parte communications with the judge, thereby creating an appearance of impropriety. Furthermore, Bolton’s actions |9had the potential to cause actual harm to the administration of justice, even if he did not intend such a result. For Bolton’s violation of Rules 8.4(a) and 8.4(d), the court determined that a one-year suspension from the practice of law was the appropriate penalty; however, considering the mitigating factors present, the court deferred six months of the suspension, subject to the requirement that Bolton complete Ethics School.

The board found that here, as in Bolton, great deference should be given to the hearing committee’s determination concerning the intention and state of mind of respondent when he gave the campaign contribution to Judge .Green for Ms. Jefferson’s campaign. The committee had the opportunity to observe respondent during his testimony, whereas the board did not. Also like the Bolton matter, respondent has violated Rules 8.4(a) and 8.4(d); his conduct was prejudicial to the administration of justice. An additional rule violation is present in respondent’s case, a Rule 8.4(f) violation. The hearing committee has recommended basically the same sanction as was imposed in Bolton, a one-year suspension with six months of the suspension deferred. The board agreed that this sanction is appropriate.

Accordingly, a majority of the board recommended that respondent be suspended from the practice of law for one year, with six months deferred. The board also recommended that respondent be assessed with all costs of these proceedings.

Four board members dissented, one in favor of a public reprimand and three in favor of a suspension of at least one year and one day.

Both respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

J^DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on the stipulations and other evidence in the record, we find respondent knowingly assisted Judge Green in conduct that is a violation of the applicable Rules of Judicial Conduct and the campaign finance laws of this state. Such conduct is clearly prejudicial to the administration of justice. As respondent has admitted, there is clear and convincing evidence which establishes that he has violated Rules 8.4(a), 8.4(d), and 8.4(f) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In Assisting a judge in a violation of the Code of Judicial Conduct is very serious misconduct by a lawyer. The baseline sanction for this knowing misconduct is a lengthy period of suspension.

In fashioning an appropriate sanction in this case, we recognize in mitigation that respondent has no prior disciplinary record in more than twenty years of practice, has a good reputation in the legal community, and has expressed genuine remorse.

Considering the totality of the circumstances, and taking into account all of the interests to be served by the lawyer disciplinary process, we conclude that the appropriate sanction for respondent’s misconduct is a one year and one day suspension from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Walter J. LeBlanc, Jr., Louisiana Bar Roll number 1800, be and he hereby is suspended from the practice of law for a period of one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CALOGERO, C.J., and WEIMER, J., concur in part, dissent in part and assign reasons.

CALOGERO, C.J.,

concurring in part and dissenting in part.

hi concur in the majority’s finding that Respondent’s conduct violated the Rules of Professional Conduct. However, I dissent from the sanction imposed and would instead suspend Respondent from the practice of law for one year, with six months deferred.

WEIMER, J.,

concurring in part and dissenting in part.

| tThe majority of the hearing committee and disciplinary board recommended that six months of the one year suspension be deferred, given the mitigating factors of absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure, a cooperative attitude toward the proceedings, good character and reputation, and remorse. The majority acknowledges that in more than twenty years of practice respondent had no prior disciplinary record, enjoys a good reputation in the legal community, and has expressed genuine remorse.

As noted by the majority and as conceded by the Office of Disciplinary Counsel, there is no direct evidence that would suggest or indicate the contribution given to Judge Green for the benefit of the Jefferson campaign was tied to any specific benefit. No bribery charges have been alleged against respondent.

The evidence indicates the respondent engaged in a one-time serious lapse of judgment at the request of a judge who he considered a good friend and who was a former colleague when they served as assistant district attorneys. He has admitted his mistake and his remorse has been sincere.

Further, respondent fully cooperated with the office of the United States Attorney in its investigation of Judge Green. An Assistant United States Attorney expressed his appreciation for respondent’s cooperation “that actually went above and beyond” what was expected.

|aIn sum, I agree with the majority’s finding that the conduct of the respondent violated the Rules of Professional Conduct. However, I also agree with the majority of the hearing committee and disciplinary board that a one year suspension with six months suspended would sufficiently discipline the respondent and adequately serve the purposes of the attorney disciplinary system. See In re Bolton, 02-0257 (La.6/21/02), 820 So.2d 548.

      . Jalila Jefferson is a daughter of United States Representative William Jefferson, who is married to Judge Green's sister.

      . At all relevant times, Judge Green was subject to Canon 7(A)(1)(d) of the Code of Judicial Conduct, which provides that a judge shall not "... solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate or purchase tickets for political party dinners or other campaign functions.” [Emphasis added.]

      . Following a federal investigation known as Operation Wrinkled Robe, Judge Green was convicted by a jury of one count of mail fraud, stemming from his handling of political contributions from a Gretna bail bonds company. He was sentenced to serve 51 months in prison. In August 2005, Judge Green resigned his judicial office, and in February 2006, he permanently resigned from the practice of law in lieu of discipline. In re: Green, 05-2120 (La.8/23/05), 913 So.2d 113; In re: Green, 06-0141 (La.2/8/06), 920 So.2d 861.

      . The ODC conceded this point in its pre-hearing memorandum, acknowledging that there is "no direct evidence that would suggest or indicate that the $800.00 cash contribution made to Judge Green for the benefit of the Jefferson campaign was tied to any specific benefit.”

      . "Knowledge” is defined by the ABA Standards as "the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result.” In contrast, "negligence” is defined as "the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.”

      . Specifically, Standard 7.2 provides that suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. In contrast, Standard 7.3 applies when such conduct is found to be negligent, and provides that reprimand is generally appropriate.

      . The court stated:
      Because much of this case turns on respondent’s subjective intent, we place great emphasis on the findings of the members of the hearing committee on this issue. The three members of the hearing committee, two of whom were attorneys and one of whom was a lay person drawn from the community, had the opportunity to see and hear the witnesses, including respondent, who testified in this matter. Unlike the disciplinary board and this court, the hearing committee was not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. See, e.g., In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47; Adkins v. Huckabay, 99-3605 (La.2/25/00), 755 So.2d 206. The hearing committee concluded that respondent was credible when he testified he had no intent to offer a bribe ... or influence the outcome of the case in any way, and that his actions were negligent rather than intentional. While the evidence could support a contrary conclusion, we have observed in a civil context that where the fact finder is presented with two permissible views of the evidence, the fact finder's choice between them is not clearly wrong. Rosell v. ESCO, 549 So.2d at 840, 844 (La.1989). Although this court is the trier of fact in bar disciplinary cases, we are not prepared to disregard the credibility evaluations made by those committee members who were present during respondent’s testimony and who act as the eyes and ears of this court. Therefore, we cannot say the hearing committee was clearly wrong when it determined, based on its credibility determinations, that respondent did not intend to offer a bribe or otherwise improperly influence the outcome of the case.


text:
    In re Hardy M. PARKERSON.
    Nos. 2007-B-1923.
    Supreme Court of Louisiana.
    Dec. 3, 2007.
   ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous complaints of serious professional misconduct filed against respondent. The complaints allege that respondent neglected his clients’ legal matters, failed to communicate with his clients, and failed to promptly return his clients’ files upon request. Respondent also engaged in conduct which is prejudicial to the administration of justice. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Hardy M. Parker-son, Louisiana Bar Roll number 10327, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Hardy M. Parkerson for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

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

IT IS FURTHER ORDERED that the proceedings in 07-B-1923 be dismissed as moot.

/s/ Jeannette J. Knoll Justice, Supreme Court of Louisiana


text:
    In re Robert E. CLARK.
    No. 2007-B-1221.
    Supreme Court of Louisiana.
    Jan. 9, 2008.
   ORDER

Considering the record of this matter,

Pursuant to Supreme Court Rule XIX, § 19.2, this court’s order of June 22, 2007 interimly suspending respondent be and hereby is dissolved.

This order shall be effective immediately-

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

TRAYLOR, J., would maintain the interim suspension.


author:
      PER CURIAM.
      JOHNSON, Justice,

text:
    STATE of Louisiana v. Willis THOMAS.
    No. 2007-KP-0634.
    Supreme Court of Louisiana.
    Jan. 11, 2008.
   PER CURIAM.

| granted. The judgment of the district court granting respondent’s motion for suspension of sentence and probation is vacated, respondent’s sentence of life imprisonment at hard labor is reinstated, and this case is remanded to the district court for purposes of once more rendering that sentence executory.

When the legislature added the offense of second degree murder to the Criminal Code and provided a sentence of life imprisonment at hard labor without eligibility for parole, probation, or suspension of sentence for 20 years, 1973 La. Acts 111, it did not, by negative implication, give an inmate the right to apply for suspension of sentence and probation after serving 20 years of his life term, or repeal La.C.Cr.P. art. 893, 1966 La. Acts 310, to the extent that it expressly denies a trial court the authority to suspend a sentence after a defendant has begun to serve it. Repeals by implication are not favored in law, State v. Piazza, 596 So.2d 817, 819 (La.1992)(“[T]here is a presumption against implied repeal, based on the theory that the legislature envisions the whole body of law when it enacts new [¡.legislation.”), and Louisiana law has long provided that a court may amend a sentence within the legal limits of its discretion only “prior to the beginning of execution of the sentence.” La.C.Cr.P. art. 881(A); see also former La. R.S. 15:526 (1950) (same); 1928 La.C.Cr.P. art. 526 (same).

Although 1973 La. Acts 111, § 4 specifically provided that “[a]ll laws or parts of laws in conflict herewith are hereby repealed,” the sentencing provisos in La. R.S. 14:30.1 and La.C.Cr.P. art. 893 did not, in fact, conflict but were complementary, the former providing that a defendant convicted of second degree murder would have to serve at least 20 years of his life sentence without eligibility for parole, probation, or suspension of sentence, and the latter providing that in any case he would have to serve the entire term of imprisonment without benefit of suspension of sentence or probation once his sentence became executory. The legislature thereby specifically provided that an offender convicted of second degree murder would have to serve a minimum of 20 years imprisonment at hard labor without regard to any changes in La.C.Cr.P. art. 893 with respect generally to suspension of sentences in felony cases. In fact, La.C.Cr.P. art. 893 has not changed over the years to the extent that it precludes suspension of executory terms of imprisonment in felony cases, and, in any event, only six years after it added second degree murder to the Criminal Code, the legislature then eliminated eligibility for parole, probation, or suspension of sentence altogether from its sentencing provisions. See 1979 La. Acts 74.

CALOGERO, C.J., would grant and docket.

JOHNSON, J., dissents with reasons.

JOHNSON, Justice,

dissenting.

U dissent from the per curiam opinion vacating the district court’s grant of the defendant’s motion for suspension of sentence and probation. Contrary to the per curiam opinion, I find that Thomas had the right to apply for suspension of sentence and probation after serving twenty years of his life term.

Defendant, Willis Thomas, was indicted for first degree murder on May 7, 1975. Pursuant to a plea agreement, Thomas pled guilty to second degree murder on November 3, 1975, and was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for a period of twenty years. In August of 2006, Thomas filed a motion in the trial court requesting that his sentence be suspended and that he be placed on probation. The trial court granted Thomas’ motion, and the State filed the instant writ application.

At the time of the offense, La. R.S. 14:30.1, as enacted by 1973 La. Acts 111 § 1, provided that “[wjhoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or | ^suspension of sentence for a period of twenty years.” Thus, the law in effect at the time of the offense provided that Thomas could be considered for probation after he had served twenty years of the life sentence.

La. C. Cr. P. art. 893 regulates the suspension of sentences and probation in felony cases. The version of La. C. Cr. P. art. 893 which was in effect at the time of the offense provided that “[t]he court shall not suspend a felony sentence after the defendant has begun to serve the sentence.” However, 1973 La. Acts 111 incorporated a repeal provision, annulling any prior law that may have prohibited the suspension of such a sentence. 1973 La. Acts 111 § 4 provided that “[a]ll laws or parts of laws in conflict herewith are hereby repealed.” In my view, this language implicitly repealed the language of La. C. Cr. P. art. 893 with respect to its prohibition of probation and suspension of sentences after the defendant has begun to serve the sentence. As a result, the enactment of an indeterminate punishment provision by 1973 La. Acts 111 § 1 granted the trial court the authority to suspend a sentence after the defendant has served twenty years of his sentence. Such authority remains intact today, as the legislature’s 1987 amendment of La. C. Cr. P. art 893 reads, in pertinent part: “Except as otherwise provided by law, the court shall not suspend a felony sentence after the defendant has begun to serve the sentence.”

In my view, Thomas had the right to seek suspension of his sentence and probation from the trial court. Thus, in my opinion, the per curiam opinion errs in vacating the trial court’s judgment on the basis that the defendant is precluded from seeking suspension of his sentence.

For the above reasons, I respectfully dissent.


text:
    In re Tyrone C. BROWN.
    No. 2007-B-2333.
    Supreme Court of Louisiana.
    Jan. 11, 2008.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent, a disbarred attorney, was convicted of operating a motor vehicle while under the influence of alcohol. Prior to the filing of new formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Tyrone C. Brown, Louisiana Bar Roll number 19302, be adjudged guilty of additional violations which warrant discipline and which may be considered in the event he applies for readmission from his disbarment in In re: Brown, 01-2863 (La.3/22/02), 813 So.2d 325, after becoming eligible to do so. Because the violations of which we now adjudge respondent guilty involve the use of alcohol, we specifically direct respondent to comply with the provisions of Supreme Court Rule XIX, § 24(E)(3) in the event he applies for readmission.

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


author: CALOGERO, Chief Justice,

text:
    Hunter HARRIS III v. Elizabeth STOGNER, et al.
    No. 2007-CC-1451.
    Supreme Court of Louisiana.
    Jan. 11, 2008.
    CALOGERO, C.J., would grant rehearing and assigns reasons.
    JOHNSON, J., would grant rehearing.
   CALOGERO, Chief Justice,

Granting Rehearing.

|TI would grant the application for rehearing filed by plaintiff, Hunter Harris III, in order to consider whether the 2007 amendment to La.Code Civ. Proc. art. 561(B) applies to this case. The amendment extended the abandonment period from three years to five years in cases where a party can prove that the failure to take a step in the prosecution or defense of the action “was caused by or was the direct result of Hurricane Katrina or Rita.” As amended, La.Code Civ. Proc. art. 561(A)(2) now provides as follows:

(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subpara-graph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years.

On original hearing, this court did not consider whether the amendment applies to plaintiffs case. Further, neither the district court nor the court of appeal considered that issue, as the amendments did not become effective until July 9, 2007, after the district court had denied the defendant’s motion to dismiss as abandoned and the court of appeal had denied writs on that issue. Nevertheless, the district court specifically found that plaintiffs failure to take a step in the prosecution of his suit within three years of the last action in the case on December 20, 2002, was caused by [ ⅞“ circumstances beyond his control.” Further, the court of appeal expressly opined that “Hurricane Katrina was beyond everyone’s control.”

In my view, the fact that the 2007 amendments to La.Code Civ. Proc. art. 561 did not become effective until July 9, 2007, does not necessarily mean that the Louisiana Legislature did not intend for it to apply to this case and to other similar cases in which the regular three-year abandonment period would have expired between August 25, 2005, and July 9, 2007, when the amendment because effective. In fact, the amendment states specifically that it applies to “an action originally initiated by he filing of a pleading prior to August 26, 2005, which has not previously been abandoned.” From a practical and logical point of view, the word “previously” in the above-quoted phrase must have been intended by the Legislature to refer to actions not abandoned prior to August 26, 2005. No other interpretation of the amendment is reasonable.

I believe interpreting the 2007 amendment to La. C.C.P. art. 561 to apply only to those cases that become abandoned after the effective day of July 9, 2007, would essentially cancel the exact benefits the amendment was adopted to address. If the amendments do not apply until July 9, 2007, none of the cases pending at the time of Hurricanes Katrina and Rita that would have been abandoned between August 25, 2005, and July 9, 2007, would be given the benefits of the amendment. And, I would suggest that the cases that would otherwise be abandoned during that period are the exact cases the amendment was designed to address since they are the only cases in which the party seeking avoid a finding of abandonment would likely be able to prove that his failure to prosecute or defend within the three-year period “was caused by or was a direct result of’ either Hurricane Katrina or Hurricane Rita. As everyone involved in the legal community knows, it was only during those days and months [..¡immediately following the storms that legal activity in the State of Louisiana was stymied by the various circumstances caused by the storm.

In fact, it is difficult to envision any circumstance in which a party to a legal action could prove that a failure to prosecute or defend an action after July 9, 2007, somehow “was caused by or was a direct result of’ either Hurricane Katrina or Rita. Although there were surely many lingering effects of Hurricane Katrina and Rita in south Louisiana on July 9, 2007, and following, the State’s legal system had almost fully recovered as much as a year prior to that date. Perhaps there were still situations in which individual attorneys were still in the process of recovering and therefore may have been unable to perform their regular functions, but the courts had certainly reopened and much of the legal business was proceeding as usual. Seen in that light, the Legislature could not have intended to provide extra time for a plaintiff to take a step in the prosecution of his action only in those cases that would have been abandoned after July 9, 2007, when such an extension was in most cases at least no longer necessary.