author: BROWNING, J.

text:
    Daniel C. MEDBERRY, Appellant, v. C/O McCALLISTER, et al., Appellee.
    No. 1D06-0026.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2006.

      Daniel C. Medberry, pro se, for Appellant.
    William M. Woodyard, Tallahassee, for Appellee.
   BROWNING, J.

Daniel C. Medberry, a Florida prison inmate, appeals the trial court’s order dismissing his amended complaint. Medber-ry brought a tort action in Leon County Circuit Court against Officers McCallister and Gabrielli (Appellees), individually, who both reside in Union County and are corrections officers at the Union Correctional Institution, where Medberry is incarcerated. Having carefully reviewed the record, we conclude that the trial court erred as a matter of law in dismissing the amended complaint for failure to satisfy a purported statutory notice of claim requirement; erred again in finding the allegations to be legally insufficient to state a cause of action against Appellees pursuant to section 768.28, Florida Statutes (2003); and abused its discretion in denying the motion to transfer the case to the Union County Circuit Court.

The record establishes that from September 15, 2003, forward, Medberry filed a series of requests for an administrative remedy or appeal alleging that his gain-time credit records were inaccurate and that he was being inappropriately denied opportunities to work that would have afforded him additional gain-time credits. On October 6, 2003, Medberry filed an informal complaint with the warden alleging that at 1:10 p.m. on October 4, 2003, Appellees had awakened him to work, had given him cleaning utensils and supplies to clean the showers, had used verbally abusive language in directing him to perform this chore, and, in an act of reprisal, had locked him in the shower for a half-hour or more and said this would teach him not to file any more grievances while on close management status.

On October 8, 2003, Medberry filed an emergency complaint to the central office alleging 1) that during the midnight shift on that same date, Appellees had escorted him from the shower area in the “O Dorm” to a holding cell; 2) that Appellees had forcibly pushed him into the holding cell and punched him in the face, ribs, and chest numerous times, resulting in his physical injuries and soreness; 3) that he had not been allowed to seek medical treatment; and 4) that he feared another assault would occur and he needed protection. Medberry denied having broken any prison rule or having resisted or threatened Appellees in any manner. He alleged the attack was motivated by his protest of adverse work assignments and conditions. Medberry alleged that inmate witnesses had observed the incident. When the morning shift began on that same date, Medberry filed an inmate sick-call request for treatment by a doctor. On October 29, 2003, Medberry filed a formal appeal to the warden alleging that his informal grievance had not been handled properly. On November 7, 2003, the institution responded that the allegations of the October 4, 2003, assault had been referred to Lt. Tricocci, the Southeast Unit Supervisor, who indicated he had interviewed all staff members who were assigned to the first shift in the “O Dorm” on the date in question, and that nothing supported Medberry’s claim of abuse. On November 12, 2003, Medberry filed a formal appeal to the central office alleging an improper investigation at the institutional level. He indicated that a review of the prison wing videotape of the first shift on the date of the alleged assault would support his version of the events. All requested relief was denied at the institutional level.

On February 18, 2004, Medberry filed his pro se original complaint in Leon County Circuit Court alleging that Appellees had performed “negligent malfeasance” “in bad faith with malicious intent or in a manner exhibiting wanton and willful disregard of human rights, safety and property,” as “agents and/or employees of the Florida Department of Corrections.” Medberry alleged that Appellees’ actions “under color of state law” as corrections officers violated his rights to liberty and to protection from cruel and unusual punishment. In support of his complaint, Med-berry set out the history of his 2003 administrative appeals at the institutional level. He alleged facts indicating that on October 6, 2003, he had reported the October 4 shower lock-in incident involving Ap-pellees; and that on October 8, 2003, he had reported the physical assault by Ap-pellees in the holding cell. The pleading alleged essentially the same facts reported in his earlier administrative appeal relating to the assault. Medberry sought a jury trial, a declaratory judgment that his constitutional and state-law rights had been violated, compensatory damages in the amount of $75,000.00, punitive damages in the amount of $75,000.00, and costs. Appended to the original complaint were copies of Medberry’s administrative appeals and the institutional responses denying relief.

On June 2, 2004, Appellees, who were represented by counsel, moved to dismiss the original complaint on several grounds. First, Appellees argued that the Leon County Circuit Court lacks subject matter jurisdiction over them based on the doctrines of sovereign immunity, qualified immunity, and/or the Eleventh Amendment. Second, Appellees contended that the complaint failed to state a cause of action against them because it did not allege that Medberry had complied with the notice provisions of section 768.28(6)(a), Florida Statutes (2003), which, according to Appel-lees, is a condition precedent to instituting a cause of action against them. See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978) (concluding that trial court correctly dismissed claim against State of Florida and Game & Fresh Water Commission where plaintiff failed to plead compliance with statutory notice of claim provision). Third, Appellees asserted that the complaint failed to state ultimate facts to remove Medberry from section 768.28(9)(a), Florida Statutes (2003), and thereby allow him to sue Appellees in the Florida courts. Fourth, the motion to dismiss argued that the acts forming the basis of Medberry’s complaint are quasi-judicial, so as to render Appellees immune from suit pursuant to Andrews v. Florida Parole Commission, 768 So.2d 1257 (Fla. 1st DCA 2000) (concluding that Appellee acted within scope of its quasi-judicial duties in placing inmate on conditional release, had jurisdiction over him and the terms of conditional release, and thus enjoyed judicial immunity from liability for false imprisonment, despite miscalculating date of release from supervision, resulting in additional 11 months’ incarceration). Fifth, Appellees argued that the allegations of willfully and intentionally assaulting Medberry and depriving him of his right to liberty failed to present ultimate facts to state a cause of action against Appellees for assault, false imprisonment, and/or unlawful detention. Sixth, citing “official records of the Clerk of the Court,” Appellees characterized Medberry as “a vexatious litigant” who had failed to post a bond. Appellees sought a reasonable attorney’s fee and costs pursuant to section 57.105, Florida Statutes (2008).

Before the trial court ruled on the motion to dismiss the original complaint, Medberry filed a July 19, 2004, pro se amended complaint alleging essentially the same history of administrative appeals and the purported facts surrounding the October 4 and 8, 2003, incidents involving Med-berry and Appellees and the subsequent cover-up. The amended pleading alleged that Appellees had acted with malice and bad faith in a manner exhibiting a wanton and willful disregard of Medberry’s rights, privileges, and immunities and had deprived Medberry of his due process and liberty rights and his protection from cruel and unusual punishment. Paragraph 19 of the amended complaint alleges that Med-berry timely filed a notice of intent to sue in compliance with section 768.28(6)(a), Florida Statutes (2003), and served notice on the proper agencies. Medberry alleged in Paragraph 20 that his pleadings set out sufficient facts to take him out of section 768.28(9)(a), Florida Statutes (2003), and that the agencies he had served in relation to his notice of intent to sue failed to respond in a timely manner to his complaints, thus purportedly waiving their sovereign immunity defense. In Paragraph 23, Medberry asserted that Appellees cannot claim qualified immunity because the pertinent state and constitutional law relating to Medberry’s rights was clearly established at the time of the physical assault, and Appellees clearly were aware that they had acted illegally and “outside the scope of their duties when they assaulted Plaintiff’ “while clothed with the authority of state law and while acting in their official capacities as correctional officers” and then tried to cover up their wrongdoing.' The amended complaint requested the same relief as the original complaint.

On September 9, 2004, the trial court entered an order dismissing the original complaint for failure to comply with the conditions precedent in section 768.28(6), Florida Statutes (2003), and for lack of personal jurisdiction of the Leon County Circuit Court over the Union County resident Appellees. An initial appeal to this court resulted in the reversal of this first dismissal order and a remand of the case because the filing of the amended complaint mooted the motion to dismiss the original complaint.

On October 13, 2005, Appellees moved to dismiss the amended complaint on essentially the same grounds raised in the original motion to dismiss. On November 4, 2005, in the Leon County Circuit Court, Medberry filed a motion to transfer the case to the Union County Circuit Court based on his concession that Union County has proper jurisdiction.

Also on November 4, 2005, Medberry filed a motion to strike Appellees’ motion to dismiss. Responding to Appellees’ contention that he had not satisfied the requirements of section 768.28(6)(a), Florida Statutes (2003), Medberry attached to his motion (to strike the motion to dismiss) an appendix, including Exhibit “A,” a copy of a purported “Notice of Claim” with a stamp indicating it was received by the Union Correctional Institution for mailing on October 13, 2003. The front page of this sworn notice indicates it is from Med-berry, a state prison inmate, and is intended to be sent to the Division of Risk Management of the Department of Insurance in Tallahassee, and also to the Secretary, Florida Department of Corrections, Central Office, in Tallahassee. The notice includes Medberry’s date of birth, place of birth, and his social security number. It states that Medberry has a claim pursuant to section 768.28, Florida Statutes, and that he exhausted all of his administrative remedies before filing his claim. The notice set out the history of Medberry’s administrative appeals and his allegations of the two alleged October 2003 incidents involving Appellees. The final page of the notice is titled “Certificate of Service” and certifies that on October 13, 2003, pursuant to the federal “mailbox rule,” Medberry placed a copy of the notice in the hands of the appropriate prison officials for timely filing with the Division of Risk Management and the Secretary of the Florida Department of Corrections.

On November 21, 2005, the trial court entered an order dismissing the amended complaint after expressly having considered the amended complaint, the motion to dismiss, the motion to transfer, and “the entire contents of the file.” The trial court stated its first ground for dismissal:

If the plaintiff intends to sue the Department of Corrections for the actions of the correctional officers while acting in their official capacities as correctional officers, he must comply with the notice of filing required by section 768.28(6), Florida Statutes, as a condition precedent. This condition precedent has not been satisfied because, although the plaintiff alleges generally that he “timely filed a notice of intent to sue in compliance with 768.28(6)(a), F.S.” and that he “served notice upon the proper agencies,” (Am. Compl. p. 5), he attached no exhibits to support this assertion. This bare allegation — which does not specify the date of any notice, the agencies to which notice was given, or the method by which the agencies were copied with notice — is insufficient to demonstrate the statutory notice, which is strictly construed. Maynard v. State Dept. of Corrections, 864 So.2d 1232 (Fla. 1st DCA 2004) (copies of letters of notice attached to complaint not copied to Department of Insurance, not sent to proper agency).

The trial court stated its second ground for dismissal:

Considering the amended complaint as an action to hold the two correctional officers personally liable in tort, the plaintiff must allege that the officers “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” § 768.28(9)(a), Fla. Stat. The amended complaint contains no such allegations but generally asserts that the officers acted “outside the scope of their duties.” Am. Compl. p. 6. Even if the amended complaint had alleged bad faith by the officers, the Department of Corrections is not liable for acts committed by its officers in bad faith, etc.

The trial court determined that it lacks personal jurisdiction over Appellees, who reside in Union County and are being sued for alleged acts that occurred in Union County. The court concluded that pursuant to section 47.011, Florida Statutes (2003), venue in Leon County is improper for an action against defendants residing in Union County.

The trial court noted this lawsuit is Medberry’s nineteenth action filed in that court since 1999, seven of them commenced in 2004 alone. Citing Rivera v. State, 728 So.2d 1165, 1166 (Fla.1998), and Attwood v. Singletary, 661 So.2d 1216 (Fla.1995), the court pointedly observed:

The right to access to the courts is not without limit for indigent pro se prisoners who abuse the processes of the court. The Court has a duty to prevent abuses of the court process to safeguard access to courts for all citizens.

Accordingly, the trial court ruled as follows:

The Defendants’ Motion to Dismiss the amended complaint is GRANTED and the Amended Complaint is hereby DISMISSED for failure to meet the conditions precedent for an action against the Department of Corrections, Secretary James V. Crosby and for failure to state, a cause of action against individual correctional officers over which this court has personal jurisdiction in the proper venue.
The plaintiffs Motion to Transfer is hereby DENIED.

Medberry filed a timely notice of. appeal on the grounds that the trial court should have granted his motion to transfer the case and that the trial court erred in concluding that Medberry failed to satisfy the prerequisites of section 768.28(6)(a) & (9)(a), Florida Statutes (2003).

We have de novo review of an order granting a motion to dismiss. See Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999). In ruling on the motion to dismiss, the trial court had to accept as true all well-pled allegations and limit its consideration of facts to the four corners of the complaint. See Brewer v. Clerk of the Circuit Court, Gadsden County, 720 So.2d 602, 603 (Fla. 1st DCA 1998). We operate under the same standard and constraints in reviewing a dismissal order. See Rittman, 727 So.2d at 393. We conclude that the trial court erred as a matter of law in dismissing the amended complaint based on Medberry’s failure to file a statutory notice of claim. The trial court misconstrued Medberry’s cause of action as a lawsuit against the Florida Department of Corrections for Appellees’ actions while acting in their official capacities as correctional officers. Section 768.28(6)(a), Florida Statutes (2003), expressly relates only to “[a]n action ... on a claim against the state or one of its agencies or subdivisions ....” In contrast, Medberry sued Ap-pellees in their individual capacity. The Florida Department of Corrections is not a named defendant in this case and is not being sued.

The purpose of the notice requirement in statutory subsection (6)(a) is “to give the appropriate public bodies an opportunity to investigate all claims.” Metro Dade County v. Reyes, 688 So.2d 311, 313 (Fla.1996); Maynard, 864 So.2d at 1233-34 (stating that pre-suit notice requirement in subsection (6)(a) “serves the purpose of giving the appropriate entities an opportunity to investigate and time to respond”). The fact that Medberry erroneously assumed he had to file a notice of claim did not create such a requirement, where neither the statute itself nor any other authority cited by Appellees did so. In fact, an examination of the pertinent language in statutory subsection (9)(a) demonstrates that the State or its subdivisions (including the Florida Department of Corrections) “shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the-course and scope of her or his employment or committed in bad faith,” etc. The amended complaint alleged that Appellees had acted illegally and “outside the scope of their duties” by attacking Medberry.- As will be noted, infra, the amended complaint presented legally sufficient allegations that, if proved, would allow Appellees to be held personally liable in tort and would immunize the State and the Florida Department of Corrections from liability in tort.

Additionally, we hold that the trial court erred as a matter of law in concluding that the amended complaint failed to satisfy the pleading requirements of section 768.28(9)(a), Florida Statutes (2003), which states in pertinent part:

No officer, employee, or agent of the state or any of its subdivisions shall be held personally liable in tort or named as a party defendant-in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.... The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

A side-by-side comparison of Medberry’s pleadings and the statutory pleading requirements establishes that the pleadings tracked all the pertinent language in statutory subsection (9)(a) allowing Appellees to be sued and held personally liable.

Given the trial court’s erroneous conclusions that Medberry failed to satisfy the purported condition precedent of notice in statutory subsection (6)(a) and the pleading requirements in subsection (9)(a), the court apparently determined there is no legally sufficient pleading to transfer to Union County Circuit Court. Because 1) the amended complaint alleges a cause of action against Appellees under section 768.28, Florida Statutes (2003); 2) Med-berry concedes that only the circuit court in Union County has personal jurisdiction over Appellees; and 3) Appellees challenged the jurisdiction of the Leon County Circuit Court over them, we conclude that the trial court abused its discretion in denying the motion to transfer. See Carr v. Stetson, 741 So.2d 567, 568 (Fla. 4th DCA 1999) (stating that standard of review of order on motion to transfer or dismiss for improper venue is abuse of discretion). Although the trial judge rightfully expressed dismay at the widely recognized abuse of the administrative grievance and judicial systems by prison inmates who file frivolous and redundant grievances and lawsuits, we have determined that Med-berry’s amended complaint is legally sufficient to withstand Appellees’ motion to dismiss.

Accordingly, we are constrained to REVERSE the dismissal order and REMAND with instructions to the trial court to grant the motion to transfer this cause to the Union County Circuit Court for further proceedings.

WOLF and VAN NORTWICK,. JJ., concur.


source: Caselaw Access Project

author: ERVIN, J.

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Sherri WILLIAMS, Respondent.
    No. 1D06-1848.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2006.
    Judson M. Chapman, General Counsel, and Kathy A. Jimenez-Morales, Assistant General Counsel, Tallahassee, for Petitioner.
    Edward T. Bauer of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Respondent.
   ERVIN, J.

The State of Florida, Department of Highway Safety and Motor Vehicles, seeks certiorari review of the circuit court’s order quashing the suspension of respondent Sherri Williams’ driver’s license for the misdemeanor offense of driving under the influence (DUI). Our review of an order of the circuit court sitting in its appellate capacity is limited to determining whether the circuit court afforded procedural due process and applied the correct law. See Dusseau v. Metro. Dade County, 794 So.2d 1270 (Fla.2001); Dep’t of Highway Safety v. Currier, 824 So.2d 966 (Fla. 1st DCA 2002). Because we conclude that the circuit court departed from the essential requirements of the law by failing to apply the correct law in its review of the suspension order issued by the Department’s hearing officer (HO), we grant the petition and quash the circuit court’s order.

The evidence discloses that on June 3, 2005, respondent Sherri Williams drove her vehicle through a stop sign, across a two-lane road, over the opposite shoulder of the road, through the driveway of an adjoining restaurant, and finally brought the vehicle to rest in a nearby drainage ditch. Williams left the vehicle unattended, and, while being escorted by a friend to her home, was stopped by an investigating officer and returned to the scene. Another officer estimated that respondent’s acts had caused $100 in damages to the vehicle, and, based on a breath sample showing .121 and .130 percent alcohol, his observations of Williams’ watery, bloodshot eyes, a strong odor of alcohol on her breath, and her poor field sobriety exercises, he arrested her for DUI.

At the hearing challenging the validity of the Department’s suspension of Williams’ driver’s license, counsel for Williams argued the evidence failed to demonstrate a lawful arrest had occurred, because the arresting officer had not observed the offense, whereas section 901.15, Florida Statutes, does not permit a law-enforcement officer to arrest a person without a warrant for a violation of chapter 316, Florida Statutes, the Florida Uniform Traffic Control Law, unless the officer observed all of the elements of the offense, including that of driving or actual physical control of the vehicle. Finally, he contended, because the accident report revealed that no damage occurred to property other than that belonging to Williams, the incident involving Williams’ vehicle did not legally constitute a traffic accident; consequently, the officer could not rely on the traffic-accident exception to the warrant-less arrest rule, as provided in section 316.645, Florida Statutes, which states:

A police officer who makes an investigation at the scene of a traffic crash may arrest any driver of a vehicle involved in the crash when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter or chapter 322 in connection with the crash.

(Emphasis added.) The HO concluded that the Department had satisfied section 322.2615, Florida Statutes, and denied Williams’ claim that the arrest was unlawful.

In quashing the suspension order, the circuit court acknowledged that no Florida appellate court had defined the term “traffic crash,” as used in section 316.645, but it decided,' from its review of a Florida county court order, State v. Lane, 5 Fla. L. Weekly Supp., 558A (Fla. Broward Cty. Ct.1998), and several out-of-state appellate court decisions, that no traffic crash had occurred, which is an essential requisite to the validation of the warrantless arrest. The court interpreted the term “traffic crash” as requiring “there be some observable result of forceful contact with another vehicle, person, or object before an investigation can be commenced, or a warrantless arrest made, pursuant to that statute.” It concluded that no forceful contact had taken place, because the crash report reflected only nominal damage, and, in the absence of such contact, no legal traffic crash could occur, thereby requiring that the warrantless arrest be invalidated. We cannot agree.

In reaching its decision, the court properly took into consideration the commonly accepted definitions of the terms “crash,” variously defined as “a breaking to pieces by or as if by collision” or “an instance of crashing,” Webster’s Collegiate Dictionary, 271 (10th ed.1998), and “collide,” which in turn means “to come together with solid or direct impact,” id. at 226. Despite its consideration of such terms and the established fact that Williams’ vehicle had direct impact with another object resulting in damage to her vehicle, the court ignored the definitions’ plainly stated terms in deciding that no traffic crash had taken place. It appears to have decided that there was no forceful contact with another object because only nominal damage in the amount of $100 to Williams’ property resulted. Nothing in the statutory term expressly provides or reasonably implies such a construction.

The rule is well established that if the language used in a statute is clear and unambiguous, the legislature’s intent shall be derived from the words so employed without involving rules of construction or speculating as to what the legislature intended. See Zuckerman v. Alter, 615 So.2d 661 (Fla.1993); Barruzza v. Suddath Van Lines, Inc., 474 So.2d 861 (Fla. 1st DCA 1985). Although the term “traffic crash” reasonably contemplates some degree of damage, it clearly does not imply that damage must have occurred to the property of another, nor does it set a minimum amount necessary in order for such an incident to legally occur.

WRIT GRANTED and ORDER QUASHED.

WEBSTER and HAWKES, JJ., concur.

      . The statute permits the Department to suspend the driving privilege of a person who, while in control of a motor vehicle, has an unlawful blood-alcohol level or breath-alcohol level of .08 or higher.

        . Manhattan & Bronx Surface Transit Operating Auth. v. Gholson, 98 Misc.2d 657, 414 N.Y.S.2d 489 (N.Y.Sup.Ct.1979); Weiss v. SEPTA, 21 Pa. D. & C.3d 521 (Pa. Ct. Common Pleas 1981).


author: PER CURIAM.

text:
    Stephanie R. FORD and The State of Florida, Department of Revenue, Petitioners, v. Sony PIERRE, Respondent.
    No. 1D06-0322.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2006.

      Charlie Crist, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Petitioners.
    Sony Pierre, pro se, Respondent.
   PER CURIAM.

Because petitioners failed to demonstrate irreparable injury not remediable on plenary appeal, this petition for writ of certiorari, which seeks review of a non-final order, is denied.

KAHN, C.J., DAVIS, and BROWNING, JJ., concur.


author: BENTON, J.

text:
    Jovan FELICIANO, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3740.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, Jamie Spivey, Assistant Public Defender, and Leonard Holton, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On appeal from his conviction for violating section 794.05, Florida Statutes (2003), Jovan Feliciano argues that the “statutory rape law” is facially unconstitutional, in that it violates due process for failure to require proof that the defendant knew the minor’s age. We affirm.

Mr. Feliciano was twenty-six years old by the time the brief liaison concluded. When they began having sexual intercourse, she was only two months beyond her seventeenth birthday. Given the disparity in their ages, his conduct violated section 794.05(1), Florida Statutes (2003), which provides:

A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree[.]

The statute does not require the State to prove the defendant’s knowledge of the minor’s age. To the contrary, section 794.021, Florida Statutes (2003), provides that ignorance or belief as to a victim’s age is no defense.

When, in this chapter, the criminality of conduct depends upon the victim’s being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.

In keeping with the statute, the jury instructions did not require any finding that Mr. Feliciano knew her age. No objection to these instructions was lodged. But the defense had filed — and the trial court had denied — a motion to dismiss, urging the unconstitutionality of the statute for failure to require scienter.

Cases appellant cites concerned with whether, in construing a criminal statute that is silent on the subject, a mens rea requirement should be inferred, are inap-posite. See Staples v. United States, 511 U.S. 600, 618, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (“[AJbsent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea.”)-, State v. Giorgetti, 868 So.2d 512, 519 (Fla.2004) (“[WJhere harsh penalties apply or there is the potential to punish otherwise law-abiding, well-intentioned citizens for reasonable behavior, the [cjourt is reluctant to impute to [the Legislature] the purpose of doing away with the mens rea requirement!.]”).

Even in jurisdictions where statutes are written so that courts must decide whether legislatures intended to make knowledge of the minor’s age an element of the offense, decisions on the point have gone overwhelmingly against defendants. See generally Colin Campbell, Annotation, Mistake or lack of information as to victim’s age as defense to statutory rape, 46 A.L.R.5th 499 (1997) (noting that “[p]rior to 1964, it was the universally accepted rule in the United States that a defendant’s mistaken belief as to the age of a victim was not a defense to a charge of statutory rape”). But see State v. Guest, 583 P.2d 836, 839-40 (Alaska 1978) (finding it “significant that the Alaska Statutes do not proscribe fornication”); People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, 675 (1964) (invoking the “primordial concept of mens rea”); Perez v. State, 111 N.M. 160, 803 P.2d 249, 251 (1990) (“When the law requires a mathematical formula for its application, we cannot say that being provided the wrong numbers is immaterial.”).

As the court recognized in Hodge v. State, 866 So.2d 1270, 1272 (Fla. 4th DCA 2004), our statute settles the question:

[T]he legislature left no doubt as to its intention that this offense be treated as a strict liability crime for which the State was not required to prove criminal scienter .... Section 794.021, Florida Statutes (2000), unequivocally provides that ignorance or mistake of the victim’s age is not a defense to the crime[.]

Appellant does not, indeed, argue that the statute is equivocal or doubtful in disallowing ignorance of age as a defense.

Because the Legislature has spoken to this issue with such clarity, statutory construction is not necessary. See Perkins v. State, 682 So.2d 1083, 1084-85 (Fla.1996) (“[T]he legislature’s use of clear and unambiguous language which imparts a definite meaning renders unnecessary a resort to rules of statutory construction^]”). Florida’s courts have never required proof of the defendant’s knowledge of the minor’s age in a statutory rape case, or recognized the defendant’s lack of knowledge as an affirmative defense.

A question concerning the requisite knowledge arose century before last. See Holton v. State, 28 Fla. 303, 9 So. 716, 717 (1891) (holding that a defendant “will not be allowed to excuse himself by asserting ignorance as to her age” in affirming conviction for carnal intercourse with an unmarried female under the age of seventeen). Florida has recognized statutory rape as a strict liability crime since. See State v. Hubbard, 751 So.2d 552, 556 (Fla.1999) (“ ‘Statutes which impose strict criminal liability, although not favored, are nonetheless constitutional^]’ ”) (quoting Baker v. State, 377 So.2d 17, 18 (Fla.1979)). “In the instance of statutory rape it is no defense that the defendant actually believed the female to be in excess of the prohibited age. Regina v. Prince, 13 Cox Crim.Cas. 138 (1875), early on settled the validity of statutory rape legislation.” Id.; Simmons v. State, 151 Fla. 778, 10 So.2d 436, 438 (1942) (conceding that all common-law crimes require criminal intent, but approving legislative removal of the requirement, where required by public policy); State v. Walborn, 729 So.2d 504, 506 (Fla. 2d DCA 1999) (finding section 794.05 “reasonably related to the goal of protecting minors from sexual exploitation by adults and its age restriction ... constitutional”).

The present case differs importantly from B.B. v. State, 659 So.2d 256, 257, 260 (Fla.1995) (declaring an earlier version of section 794.05(1) unconstitutional under Article I, Section 23 of the Florida Constitution, as applied to a sixteen-year-old whose “victim was also sixteen years of age”). See Victor v. State, 566 So.2d 354, 356 (Fla. 4th DCA 1990) (describing the purpose of section 794.05(1), Florida Statutes, as “protecting minors from sex acts imposed by adults”).

Unemancipated minors are under a statutory disability that precludes consent to sexual activity with adults. See B.B., 659 So.2d at 258 (“If our decision were based upon whether minors could consent to sexual activity as though they were adults, our decision would be ‘no’ for the reasons stated in Justice Kogan’s concurring opinion in Jones v. State, 640 So.2d 1084, 1087 (Fla.1994).”); Schmitt v. State, 590 So.2d 404, 411 n. 10 (Fla.1991) (“Obviously, [unmarried] minor children are legally incapable of consenting to a sexual act in most circumstances.”). “[I]t is evident beyond all doubt that any type of [adult] sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents[.]” Schmitt, 590 So.2d at 410-11; see State v. Raleigh, 686 So.2d 621, 623 (Fla. 5th DCA 1996) (discussing “just some of the obvious reasons why the legislature has determined this defense cannot apply in such cases”).

Affirmed.

PADOVANO and LEWIS, JJ„ concur.

         The version of section 794.05 at issue in B.B. provided:
      (1) Any person who has unlawful carnal intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years, shall be guilty of a felony of the second degree ....
      § 794.05(1), Fla. Stat. (1991). Section 794.05 was amended in 1996 so that only persons over the age of twenty-four, instead of "any person,” could be guilty of violating the statute. See Ch. 96-409, § 1, at 2937, Laws of Fla.


author: STEVENSON, C.J.

text:
    Kevin Gale BECK, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2700.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.

      Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Appellant, Kevin Beck, challenges the trial court’s order revoking his probation based on allegations that he battered his wife. Our review of the record indicates the revocation was based solely on uncorroborated hearsay; therefore, we reverse.

Shortly after being placed on probation for a separate offense, Beck had an altercation with his wife, which resulted in her calling 911. The wife told the 911 dispatcher that Beck hit her and she fled the house and that she initially called the police number for non-emergencies. The wife said she did not require medical assistance, but wanted police dispatched to her location because she was scared Beck would “come after” her. The responding officer testified that the wife was crying, hyperventilating, and smelled of alcohol and that she told him Beck pulled her hair, hit the top of her head, and injured her face by “whippfing] his cell phone at her.” The evidence at the revocation hearing included the police officer’s testimony regarding his observations of the wife and her residence, statements the wife purportedly gave to the officer, a tape of the wife’s 911 call, photographs of the scene, and the wife’s written statement to police. The trial court never ruled whether the 911 tape was admitted pursuant to an exception to the hearsay rule, but found that the State had satisfied its burden of proof based on the wife’s statements and the responding officer’s testimony.

We begin our analysis by recognizing that “[hjearsay, though admissible in a probation revocation hearing, is insufficient standing alone to establish a violation of a condition of probation.” Wilcox v. State, 770 So.2d 733, 736 (Fla. 4th DCA 2000). Here, the State argues that the 911 call was admissible under section 90.803(2), Florida Statutes, as an excited utterance. For a statement to be admissible as an excited utterance:

(1) the declarant must have experienced or witnessed an event startling enough to cause nervous excitement; (2) the statement must have been made while under the stress of excitement caused by the startling event; and (3) the statement must have been made before there was time to contrive or misrepresent.

Evans v. State, 838 So.2d 1090, 1093 (Fla.2002). The admissibility of an excited utterance is based on the premise that “the declarant does not have the reflective capacity necessary for conscious misrepresentation.” Rogers v. State, 660 So.2d 237, 240 (Fla.1995). Accordingly, “[wjhile an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection.” Hutchinson v. State, 882 So.2d 943, 951 (Fla.2004). Factors to consider when deciding if a statement qualifies as an excited utterance are “the age of the declar-ant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements.” State v. Jano, 524 So.2d 660, 661 (Fla.1988).

Here, the fight began at 9:30 p.m. and the 911 call was made at 10:48 p.m. Even should we consider this a relatively short time period, the State must establish that the victim did not engage in reflective thought. As the supreme court explained in Jano, “ ‘where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.’ ” Id. (quoting Edward W. Cleary, McCormick on Evidence § 297, at 856 (3d ed.1984)). More recently, in Hutchinson, the supreme court held that the victim’s statement to a friend, which was made within thirty minutes of a fight, could not qualify as an excited utterance because the State failed to prove the victim did not engage in reflective thought. 882 So.2d at 951-52. Further, the court remarked that “[wjithout more information, we can only speculate as to whether [the declarant] engaged in reflective thought. However, this was a long enough time interval [thirty minutes] to permit reflective thought.” Id. at 951. Here, the victim called the non-emergency police number even before she dialed 911, a fact which would certainly suggest the opportunity to engage in reflective thought.

The victim’s emotional state when speaking to the officer does not alter our conclusion. See Mariano v. State, 933 So.2d 111, 116-17 (Fla. 4th DCA 2006) (holding that a statement given by a hysterical and crying declarant between thirty and ninety minutes after a startling event was not admissible as an excited utterance because the declarant spoke in a narrative form and the State failed to prove reflective thought did not occur). In the instant case, the State failed to secure a ruling from the trial court that the victim’s hearsay statements were admitted under an exception to the hearsay rule and our review of the record does not lead us to the conclusion that those statements qualify as excited utterances.

Furthermore, although the wife’s physical appearance and the appearance of her residence suggest a battery occurred, the officer acknowledged the “irritated spot” on the top of the wife’s head “could have been anything.” The officer also admitted there was no blood on the cell phone to corroborate the victim’s story that the abrasion on her face was caused by Beck hitting her with the item. The officer’s observations were consequently insufficient to connect Beck to the alleged battery and this case is therefore analogous to Santiago v. State, 889 So.2d 200 (Fla. 4th DCA 2004). In Santiago, we held that the trial court erred in revoking the appellant’s community control because the evidence, i.e., the deputy’s observing red marks on the victim’s face, a taped statement by the victim, and second-hand statements, was insufficient to prove Santiago committed a battery. Id. at 202-03; see also Colwell v. State, 838 So.2d 670 (Fla. 2d DCA 2003) (holding the trial court erred in finding that a battery occurred when the only evidence presented was the responding deputy’s testimony that the intoxicated and hysterical victim had a red mark on her neck and said Colwell grabbed her).

In light of the foregoing, we conclude that only uncorroborated hearsay testimony supported the finding that Beck committed battery on his wife and thus violated his probation. We consequently reverse the trial court’s order and remand with instructions to reinstate appellant’s probation.

Reversed and remanded with instructions.

STONE and POLEN, JJ., concur.


text:
    Tina BOGAR-SANABRIA, Appellant, v. BEALL'S INC. and Gab Robins North America, Appellees.
    No. 1D06-3337.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Gerald A. Rosenthal, West Palm Beach, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
    No appearance for appellees.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction. See § 440.20(ll)(c), Florida Statutes (2005) (providing that an order entered by a JCC approving attorney’s fees as set out in a settlement is not considered an award and is not subject to modification or review).

ALLEN, WEBSTER, and DAVIS, JJ., concur.


text:
    Louis ROMAIN, Appellant, v. Steven E. QUINNELL, Appellee.
    No. 1D06-2888.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.

      Louis Romain, pro se, Appellant.
    Kathy J. Maus and John A Forgas, III, of Butler Pappas Weihmuller Katz Craig, LLP, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s “Motion to Remand Case to Circuit Court and Hold Appeal in Abeyance Until Circuit Court Rules on Amended Complaint,” filed on August 21, 2006, which the Court hereby treats as a response to this Court’s order of August 8, 2006, the appeal is hereby dismissed for lack of jurisdiction. The order on appeal is neither a final order nor a nonfinal order appealable pursuant to Florida Rule of Appellate Procedure 9.130. Augustin v. Blount, 573 So.2d 104 (Fla. 1st DCA 1991). Further, the proper exercise of this Court’s discretion under Florida Rule of Appellate Procedure 9.110(Z) is to dismiss this appeal at this time, without prejudice to the appellant’s right to file a timely appeal from the final order entered in this matter. Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995).

ERVIN and POLSTON, JJ., concur; HAWKES, J., concurs in result only.


text:
    Walter M. MARTINEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2597.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Walter M. Martinez, pro se, Petitioner.
    Charlie Crist, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s appeal of an order denying his motion for postconviction relief was dismissed for failure of counsel to file a docketing statement. We grant the instant petition for belated appeal and hereby reinstate the appeal in case number 1D04-2825. Jurisdiction in that proceeding is relinquished to the trial court for a period of 30 days with directions to consider the appointment of the Public Defender if petitioner so qualifies.

ALLEN, WEBSTER, and DAVIS, JJ., concur.


text:
    Johnny DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-3731.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.

      D. Todd Doss, Lake City, for Appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because we conclude that defense counsel’s failure to investigate appellant’s treating physician due to counsel’s speculation that the physician’s opinions, which counsel was unaware of, would be successfully challenged on cross-examination constituted ineffective assistance of trial counsel, we reverse the trial court’s order denying postconviction relief and remand for a new trial. See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that to prevail on an ineffective assistance of counsel claim, a defendant must first demonstrate a deficient performance by counsel that fell below an objective standard of reasonableness considering all the circumstances and then demonstrate that counsel’s deficient performance prejudiced the defense).

REVERSED and REMANDED for a new trial.

BENTON, PADOVANO, and LEWIS, JJ., concur.


author: EVANDER, J.

text:
    James E. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-397.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 2006.

      James E. Johnson, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

On May 13, 2005, appellant was sentenced to three years in the Department of Corrections after entering a no contest plea to the charge of grand theft of a motor vehicle.

The record reflects that appellant had been arrested in Mississippi on March 24, 2004, as a fugitive from justice. At the time of his arrest, he had pending charges in Volusia County, Hillsborough County, and Pinellas County. He was transported to the Volusia County jail on March 11, 2005, after resolving his criminal charges in Hillsborough County and Pinellas County. There is documentation in the court file reflecting that appellant was arrested on the Volusia County arrest warrant for the underlying charge on March 11, 2005. Based on such documentation, the trial court found appellant was only entitled to receive 64 days jail credit.

Appellant subsequently filed a motion to correct illegal sentence seeking additional jail credit. Appellant contended he was first arrested on his Volusia County arrest warrant in Mississippi. Both parties agree that appellant would be entitled to additional jail credit if he had been arrested on the Volusia County arrest warrant prior to March 11, 2005. Gethers v. State, 838 So.2d 504 (Fla.2003). The trial court denied appellant’s motion, finding that the Mississippi arrest paper work submitted by appellant did not support his argument. We agree with the trial court’s conclusion.

On appeal, appellant also contends that he was formally arrested on the Volu-sia County arrest warrant in Hillsborough County — shortly after being extradited from Mississippi to Florida. We do not address the merits of this second issue because the matter was not presented to the trial court. Accordingly, we affirm without prejudice to appellant to seek relief from the trial court on this issue. Readon v. State, 925 So.2d 427 (Fla. 3d DCA 2006).

AFFIRMED.

SAWAYA and TORPY, JJ., concur.


author: SILBERMAN, Judge.

text:
    Errol D. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-648.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 2006.

      See also 768 So.2d 513
   SILBERMAN, Judge.

Errol D. Brooks appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

Brooks’s rule 3.800(a) motion challenges the life sentence he received at resentenc-ing following our decision in Brooks v. State, 768 So.2d 513 (Fla. 2d DCA 2000). We note, and the State concedes, that the trial court resentenced Brooks prior to the issuance of our mandate in Brooks. As a result, the trial court lacked jurisdiction to resentence Brooks. See Wallen v. State, 909 So.2d 520, 520-21 (Fla. 5th DCA 2005).

We also note that our instructions in Brooks were not completely accurate. Therefore, on remand, Brooks is entitled to be resentenced in accordance with the sentencing guidelines applicable to his conviction, but the State shall have the right to seek an upward departure sentence. See Fain v. State, 888 So.2d 762, 763 (Fla. 2d DCA 2004). If the trial court finds an upward departure to be appropriate, it must file contemporaneous written reasons for the departure. Id.

Reversed and remanded with directions.

WHATLEY and STRINGER, JJ„ Concur.


author: STONE, J.

text:
    STATE of Florida, Appellant, v. Jose GOMEZ, Appellee.
    No. 4D05-3094.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
   STONE, J.

Gomez is charged with two counts of aggravated assault with a firearm involving victims Susan and Dan Sullivan. We treat the state’s appeal of the order granting Gomez’s motion to suppress the victims’ in-court and pre-trial identifications as a petition for writ of certiorari. See State v. Houston, 616 So.2d 595 (Fla. 4th DCA 1993); State v. Mendez, 423 So.2d 621 (Fla. 4th DCA 1982). We deny the petition.

The charges arose from an incident wherein Gomez pointed a rifle at the Sulli-vans. At the hearing on the motion to suppress, sheriffs Detective Hewlett testified that, in taking a statement from Susan two weeks after the incident, she advised him she was concerned whether the police had the right suspect in custody because she had never identified a suspect. Hewlett then gave Susan the names of the men who had been arrested “for clarification of identification.”

When Hewlett took Dan’s statement the next day, Dan informed him that he had looked at Gomez’s picture on the Broward County Sheriffs Office website, and he had shown a copy to Susan.

Susan said she could not recall how she first learned Gomez’s name, but that, in any event, she did know that after the night of the incident and for several weeks thereafter, she was “receiving calls” from the Broward County Jail saying that Jose Gomez and another suspect, Chris Bradley, were in custody. Susan said that Dan had received the same phone calls.

Susan testified she would have been able to identify Gomez prior to seeing his picture. She stated that she asked Dan to print the picture “because I wanted to see myself because I wasn’t asked to identify him, I wanted to see for myself it was him ... because I was scared to death and I wanted to make sure that person that I, that pointed the riffle [sic] at me was in jail and not someone else.”

Dan said that twice he saw the person that was holding the rifle; the first time, when he got the best look, the person was probably five or six feet away, and the second time, maybe twenty or thirty yards. He stated the first look was not “a very long look because at that time I was trying to keep from getting shot at.” In Dan’s statement to Hewlett, he indicated that he was “looking more at the riffle [sic] he was pointing.” Dan stated he had asked the police officer if Gomez had used an S.K.S. rifle, and the officer said the rifle used was similar to an S.K.S. ■

Dan acknowledged that he first heard Gomez’s name from Hewlett. He stated that he believed if he had not been given Gomez’s name, and had been asked to come in and see a photo line-up without having looked on the internet, he would have been able to identify Gomez.

Susan testified that, during the crime, three times she saw the person who pointed the rifle at them, for a few seconds each time. And, despite the darkness, she got a good look at him as he conversed with her, and there was a street light a few yards away.

Although at the hearing Susan said the person was pudgy, his hair was closely cropped, he had a rounded face, and very dark eyes, in her initial statement to Hewlett, she simply described the person as a Hispanic male.

At the close of the hearing, the court said, “Had the victims been able to give a more detailed description of the individual other than short, pudgy Mexican, had the police inquired, had there been a show-up, line-up, anything that the police had done correctly it might be a different story but I must suppress the, the identification since that was not done correctly. I also note that Mr. Sullivan misidentified the riffle [sic] and he indicated that his attention was really more on the riffle [sic] than the person holding the riffle [sic] and he did misidentify the riffle [sic].”

“A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001). When a ruling on a motion to suppress involves a mixed question of law and fact, as here, the standard of review for the factual findings is whether they were supported by competent, substantial evidence, and the application of those facts to the law is reviewed de novo. Id.

A two-part test is applicable in determining whether to suppress an out-of-court identification: “(1) did the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification.” Grant v. State, 390 So.2d 341, 343 (Fla.1980).

The factors to be considered in evaluating' the likelihood of misidentification include the opportunity of a witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).

An in-court identification may be excluded “when the police have obtained a pretrial identification by means of an unnecessarily suggestive procedure.” Edwards v. State, 538 So.2d 440, 442 (Fla.1989) (citations omitted). “[T]he in-court identification may not be admitted unless it is found to be reliable and based solely upon the witness’ independent recollection of the offender at the time of the crime, uninfluenced by the intervening illegal confrontation.” Id. (citations omitted).

In gauging the reliability of an in-court identification, the trial judge must consider the following factors: the prior opportunity the witness had to observe the alleged criminal act; the existence of any discrepancy between any pretrial lineup description and the defendant’s actual description; any identification prior to the lineup of another person; any identification by picture of the defendant prior to the line-up; failure to identify the defendant on a prior occasion; any time lapse between the alleged act and the lineup identification; and any other factors raised by the totality of the circumstances that bear upon the likelihood that the witness’ in-court identification is not tainted by the illegal lineup.

Id. at 443 (citation omitted) (noting the factors are substantially the same as the Neil factors). The state must overcome a presumption that the in-court identification is tainted and unreliable as a result of improper out-of-court identification. See Id. at 444; Mendez, 423 So.2d at 622.

Extrapolating the requirement of state action for a search or seizure to be constitutionally unreasonable, the state argues that there was no unnecessarily suggestive procedure here because the Sulli-vans’ looking at Gomez’s picture did not constitute state action. In State v. Iaccarino, 767 So.2d 470, 475 (Fla. 2d DCA 2000)(citing United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1994)), the court stated, “To determine whether a private individual acts as an instrument of the state, courts look to (1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual intended to assist the police or further his own ends.”

Although there was no direct evidence that the sheriffs deputies intended the Sullivans to view Gomez’s picture, it is clear that the investigating detective and other deputies or county jail employees had communicated Gomez’s name to the Sullivans in advance of their identification. As there is no contention that the state agents were not aware that Gomez’s photo was available on the public website, the trial court could certainly conclude that the communication of Gomez’s name was the equivalent of encouraging or acquiescing in the Sullivans’ conduct. There is no explanation why Hewlett did not conduct a lineup or photo line-up prior to furnishing the name. Further, while there was testimony that Susan wanted to look at his picture to be assured of her safety, she also expressed concern that the wrong person may have been arrested. Therefore, it cannot be said that the Sullivans viewed the picture solely in furtherance of their own ends.

The record also reflects that, although the trial court was initially prepared to suppress based solely on the deputies’ conduct in providing Gomez’s name, the court ultimately applied the Neil factors and, finding that the identification was unreliable, ruled the state failed to establish that the witness’ recollection was independent of the suggestive identification.

On these facts, the trial court could properly conclude that it was unnecessarily suggestive for the victims to be provided the defendant’s name and resulting access to his photo on the website before having any opportunity to identify him, thus giving rise to a substantial likelihood of irreparable misidentification. See generally Fitzpatrick v. State, 900 So.2d 495, 518 (Fla.2005)(quoting Washington v. State, 653 So.2d 362, 365 (Fla.1994)) (holding “showing of a single photo [i]s unduly suggestive”); Johnson v. State, 566 So.2d 888, 890 (Fla. 4th DCA 1990) (finding police officer asking witness if he could pick out appellant’s picture and telling witness appellant was in custody unduly suggestive).

Given the totality of the circumstances and the presumption of correctness of the trial court’s factual findings, we cannot conclude that the court abused its discretion in determining there was a substantial likelihood of irreparable misidentification and in excluding both the pre-trial and in-court identifications. The Sullivans only saw Gomez for a brief time at dusk, during which they were, in part, focused on the rifle. This was compounded by the length of time between the crime and when the Sullivans saw the picture. Further, there was a discrepancy between Susan’s first description of Gomez as a “Hispanic” male and her detailed testimony at the hearing, after she had seen the picture. The trial court could conclude that these considerations outweigh the testimony as to the Sullivans’ level of certainty of identification upon seeing the website picture at least two weeks after the incident.

Therefore, the petition is denied.

POLEN and FARMER, JJ., concur.


text:
    Tony JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-577.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2006.
    Tony Jefferson, Indiantown, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Tony Jefferson appeals an order entered on a letter that Jefferson sent to the trial court seeking to enforce this court’s mandate in Jefferson v. State, 902 So.2d 898 (Fla. 4th DCA 2005). Because the record in this case is clear that Jefferson is entitled to the relief he seeks, we grant relief and order the trial court to comply with this court’s mandate.

We have already determined that Jefferson is entitled to be credited in lower court case number 89-1175 with 17 years credit for time served (including all gain time) on case number 89-1166. Id. In this case, the Department of Corrections had no authority to forfeit gain time earned in 89-1166. See Tripp v. State, 622 So.2d 941, 942 n. 2 (Fla.1993) (explaining that revocation of probation was not a basis for forfeiting gain time where the offense was committed before October 1,1989).

We have also determined that section 947.141(4), Florida Statutes (1989), provides no authority for forfeiture of gain time in this situation. Jefferson’s consecutive term of probation in 89-1175 had to be substituted for any conditional release supervision in 89-1166. § 947.1405(2), Fla. Stat. (1989) (providing that “[i]f an inmate has received a term of probation or community control supervision to be served after release from incarceration, the period of probation or community control must be substituted for the conditional release supervision”). The state has been unable to furnish any documents to show that Jefferson was on conditional release in case number 89-1166.

We reject the state’s argument that the substitution clause of section 947.1405(2) did not apply to the probation in 89-1175 because it was “independent” from 89-1166. Both cases were originally sentenced together and on the same score-sheet and “must continue to be treated in relation to each other.” Tripp, 622 So.2d at 942. Any ambiguity in the statute must be resolved in favor of the criminal defendant. § 775.021(1), Fla. Stat. (codifying the rule of lenity).

The trial court shall immediately correct the sentence in 89-1175 and grant Jefferson credit for 17 years time served on case 89-1166 as this court had previously mandated. If, after granting this credit, it becomes apparent that Jefferson’s continued detention would be illegal, then the trial court shall provide for Jefferson’s immediate release from incarceration.

FARMER, KLEIN and TAYLOR, JJ., concur.


text:
    In Re Mark S. CAMPO.
    No. 2005-OB-2343.
    Supreme Court of Louisiana.
    Sept. 8, 2006.
   ORDER

Considering the motion filed by petitioner, Mark S. Campo, seeking to withdraw his application for admission to the Louisiana bar,

IT IS HEREBY ORDERED that petitioner’s application for admission to the Louisiana bar be and hereby is dismissed.

/s/ Jeannette T. Knoll

Justice, Supreme Court of Louisiana


text:
    In Re John Ernest BROWN.
    No. 2006-OB-2210.
    Supreme Court of Louisiana.
    Sept. 13, 2006.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel, the findings and recommendation of the hearing committee, and considering the record,

IT IS ORDERED that John Ernest Brown, Louisiana Bar Roll number 14103, be and he hereby is transferred to disability inactive status, pursuant to Supreme Court Rule XIX, § 22(D). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

IT IS FURTHER ORDERED that respondent may petition for transfer to active status no sooner than one year from the date of this order. Prior to seeking reinstatement to active status, respondent shall comply with the conditions recommended by the hearing committee in its report.

/s/ Pascal F. Calogero, Jr.

Justice, Supreme Court of Louisiana


text:
    In Re Michael J. BONNETTE.
    No. 2006-B-0951.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   PER CURIAM.

|! This disciplinary matter arises from four sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael J. Bonnette, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1977. In 1999, he was admonished by the disciplinary board for failing to communicate with a client, engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and failing to cooperate with the ODC.

In 2001, this court considered a proceeding against respondent wherein he was charged with neglecting his client’s legal matter from 1989 to 1998 and failing to cooperate with the ODC. After considering the record, we suspended respondent for one year and one day. In re: Bonnette, 01-1401 (La.6/29/01), 791 So.2d 68 (“Bonnette I ”). Respondent never sought reinstatement following this suspension.

Approximately a year and a half later, we addressed a second disciplinary proceeding against respondent involving nine counts of misconduct. This proceeding, arising from conduct which occurred between 1995 and 1999, involved allegations that respondent neglected client matters, failed to communicate with ^clients, failed to account for and refund unearned fees, failed to properly terminate representations, practiced law while ineligible to do so, and failed to cooperate with the ODC. We found respondent’s actions in those matters, combined with his prior disciplinary record, proved that he demonstrated a callous disregard for the standards of the legal profession. Accordingly, respondent was disbarred. In re: Bonnette, 02-2596 (La.1/24/03), 840 So.2d 512 (“Bonnette II”).

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed four sets of formal charges against respondent. The first set, bearing the disciplinary board’s docket number 00-DB-143, was filed on November 9, 2000 and consists of one count of misconduct. The second set, bearing the disciplinary board’s docket number 01-DB-007, was filed on January 17, 2001 and consists of two counts of misconduct. The third set, bearing the disciplinary board’s docket number 02-DB-078, was filed on August 9, 2002 and consists of one count of misconduct. The fourth set, bearing the disciplinary board’s docket number 04-DB-021, was filed on March 8, 2004 and consists of two counts of misconduct.

The first two sets of formal charges were consolidated and considered by one hearing committee. The third and fourth sets of formal charges were considered by separate hearing committees. Thereafter, all four matters were consolidated by order of the disciplinary board dated June 13, 2005. On April 25, 2006, the board filed in this court a single recommendation of discipline encompassing all four sets of formal charges.

U00-DB-U3

In July 2000, Elizabeth Bryant filed a complaint against respondent with the ODC. A copy of the complaint was forwarded to respondent’s primary registration address but was returned marked “box closed unable to forward.” Thereafter, despite being personally served with a subpoena to provide a sworn statement to the ODC, respondent failed to appear.

The ODC alleged that respondent’s conduct violated Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. The ODC also alleged that respondent’s conduct violated Supreme Court Rule XIX, § 9(a)(c) (knowing failure to respond to a lawful demand from a disciplinary authority).

01-DB-007

Counts I & II — The Lasyone Matter

In March 1999, Kenny Lasyone hired respondent to handle a criminal matter, paying him $3,500 of a $5,000 fee. Approximately one year later, Mr. Lasyone advised respondent that he was unable to pay the balance of the fee. As such, he requested that respondent withdraw from the representation and refund the unearned portion of the fee. Respondent did neither, nor did he provide Mr. Lasyone with an accounting. Furthermore, although respondent appeared for Mr. Lasy-one’s arraignment at the beginning of the representation, he failed to appear for Mr. Lasyone’s trial on August 3, 2000.

|4In September 2000, the ODC forwarded a copy of Mr. Lasyone’s complaint to respondent’s primary registration address; however, the correspondence was returned marked “box closed unable to forward.” Correspondence addressed to respondent’s secondary registration address was returned “unclaimed.” Thereafter, despite being personally served with a subpoena to provide a sworn statement to the ODC, respondent failed to appear.

The ODC alleged that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(6) (failure to refund an unearned fee), 1.15(b) (failure to promptly remit client funds and failure to provide an accounting of client funds), 1.16(a)(3) (failure to withdraw from representation upon being discharged) 1.16(d) (obligations upon termination of the representation), 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(b) (knowing failure to respond to a lawful demand from a disciplinary authority), 8.1(c), 8.4(a), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) of the Rules of Professional Conduct. The ODC also alleged that respondent’s conduct violated Supreme Court Rule XIX, § 9(c). .

Respondent failed to answer or otherwise reply to either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

| ⅜Hearing Committee Recommendation

00-DB-U3 & 01-DB-007

After considering the ODC’s submission and the deemed admitted facts, the hearing committee made the following factual findings:

1. Ms. Bryant hired respondent in March 1996 to represent her as the result of a motor vehicle accident.

2. Respondent repeatedly failed to communicate with Ms. Bryant and needlessly subjected her to bill collectors and the like.

3. Respondent misinformed Ms. Bryant regarding payments allegedly made by him on her behalf and failed to claim certified letters from her.

4. Mr. Lasyone hired respondent in March 1999 to represent him on a charge of fourth offense DWI. Mr. La-syone paid respondent $3,500. Although respondent did no substantial work on behalf of Mr. Lasyone, respondent refused to refund all or part of the $3,500. Despite several requests, respondent failed to return unearned fees paid by Mr. Lasyone and failed to respond to the ODC.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. He violated duties owed to his clients and as a professional. He acted knowingly and intentionally. He also failed to cooperate with the ODC in its investigations of his clients’ complaints. Furthermore, his conduct caused “actual injury of untold economic interest to his clients as well as personal misery, trials, and tribulations to complainants.”

The committee found the following aggravating factors present: prior disciplinary offenses (respondent’s 1999 admonition), a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary | fiproceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and indifference to making restitution. The committee found no mitigating factors present.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day.

The ODC filed an objection to the hearing committee’s recommendation, arguing that disbarment is the appropriate sanction in light of respondent’s suspension in Bonnette I.

02-DB-078

In May 2001, Teresa Lard hired respondent to represent her son, Diverious Holden, in a criminal matter, paying him $1,000. Respondent did some work in the matter, including filing a motion to reduce bail. However, Ms. Lard discharged respondent in June 2001 and requested a refund of the unearned portion of the fee. Respondent failed to respond to Ms. Lard and failed to refund the unearned fee.

In August 2001, the ODC forwarded a copy of Ms. Lard’s complaint to respondent’s primary registration address; however, the correspondence was returned marked “unclaimed.” Thereafter, despite being personally served with a subpoena to provide a sworn statement to the ODC, respondent failed to appear.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5(f)(6), 1.16(d), 3.4(c), 8.1(c), 8.4(a), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d), and 8.4(g) of the Rules of Professional Conduct.

17Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

02-DB-078

After considering the ODC’s submission and the deemed admitted facts, the committee found that Ms. Lard hired respondent on May 25, 2001 to handle Mr. Holden’s bond reduction. Respondent accepted a $1,000 fee but thereafter failed to return Ms. Lard’s telephone calls. Ms. Lard terminated respondent’s services by letter dated June 27, 2001 and requested a refund of the unearned portion of the fee. Ms. Lard heard nothing further from respondent. On June 22, 2001, respondent filed a motion to reduce bail and met with the judge and the assistant district attorney, but undertook no further efforts on behalf of Mr. Holden. On August 28, 2001, a copy of Ms. Lard’s complaint was forwarded to respondent via certified mail to his registration address,- which correspondence was returned marked “unclaimed.” On October 16, 2001, respondent was personally served with a subpoena to provide the ODC with a sworn statement. However, respondent did not appear.

Based on these findings, the committee determined that respondent is “clearly guilty of the charged action.” He knowingly and intentionally violated duties owed to his client and as a professional. In acting as he did, respondent did not properly 1 Rcomplete his client’s legal matter and left the complaint unresolved. The committee found no mitigating factors present. The only aggravating factor found by the committee was respondent’s prior disciplinary offenses (his 1999 admonition, his suspension in Bonnette I, and his disbarment in Bonnette II).

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

0Jp-DB-021

Counts I & II — The Sapp Matter

In April 2001, Monica Sapp hired respondent to handle her divorce, paying him $750 in fees and costs. Respondent filed a petition for divorce and restraining order. He also appeared in court to represent Ms. Sapp during a hearing. Thereafter, respondent became inaccessible to Ms. Sapp and failed to complete the representation. He did not provide his client with an accounting or refund any portion of the fee. He also failed to inform Ms. Sapp of his suspension resulting from Bonnette I or his disbarment resulting from Bonnette II.

The ODC forwarded a copy of Ms. Sapp’s complaint to respondent at his primary registration address, which was returned marked “unclaimed.” Correspondence sent to another address provided by respondent was returned marked “moved left no address/unable to forward/return to sender.” Thereafter, despite being personally served with a subpoena to provide a sworn statement to the ODC, respondent failed to appear.

|flThe ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5(f)(6), 1.15(c) (failure to keep disputed funds separate from the lawyer’s own funds), 1.16(a)(1) (declining or terminating representation), 1.16(d), 8.1(c), 8.4(a), 8.4(c), 8.4(d), and 8.4(g) of the Rules of Professional Conduct.

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

0Í-DB-021

After considering the ODC’s submission and the deemed admitted facts, the hearing committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee found no mitigating factors but found the aggravating factor of prior disciplinary offenses to be present.

Under these circumstances, the committee recommended that respondent be disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

00-DB-U3, 01-DB-007, 02-

DB-078 & 0k-DB-021

hnAfter reviewing the consolidated matters, the disciplinary board made the following determinations:

00-DB-lJp3: Respondent failed to cooperate with the disciplinary investigation. In doing so, he violated Rules 3.4(c), 8.1(c), 8.4(a), and 8.4(g) of the Rules of Professional Conduct. He also violated Supreme Court Rule XIX, § 9(a) and (c).

01-DB-007: Respondent violated Rules 1.5(f)(6) and 1.16(d) by failing to account for and refund a fee paid for representation through trial that was terminated by the client prior to trial. Respondent violated Rules 8.1(b), 8.1(c), and 8.4(g) as well as Supreme Court Rule XIX, § 9(c) by failing to cooperate with the disciplinary investigation. Respondent also violated Rule 1.16(a)(3) by failing to withdraw from the case and violated Rule 8.4(d) by failing to cooperate with the disciplinary investigation, which was prejudicial to the administration of justice. In violating the above Rules of Professional Conduct, respondent also violated Rule 8.4(a). However, the board determined that neither the deemed admitted facts nor Mr. Lasyone’s allegations indicate that respondent violated Rules 1.3,1.4,1.15(b), or 3.2.

02-DB-078: Respondent violated Rules 1.5(f)(6) and 1.16(d) by failing to account for or refund unearned fees. Respondent also violated Rules 3.4(c), 8.1(c), 8.4(d), and 8.4(g) by failing to cooperate with the disciplinary investigation, which was prejudicial to the administration of justice. In violating the above Rules of Professional Conduct, respondent also violated Rule 8.4(a). However, the board determined that neither the deemed admitted facts nor Ms. Lard’s allegations indicate that respondent violated Rules 1.3, 1.4, or 8.4(c).

0U-DB-021: Respondent violated Rule 1.4 by failing to inform Ms. Sapp of his suspension in Bonnette I, which prohibited him from working on her case. Respondent violated Rule 1.5(f)(6) by failing to account for or refund unearned fees. I t Respondent violated Rule 1.16(a)(1) by failing to file a motion to withdraw from the case. He also violated Rule 1.16(d) by failing to give Ms. Sapp notice that he was terminating the representation and by failing to refund any unearned fee. Respondent further violated Rules 8.1(c), 8.4(d), and 8.4(g) by failing to cooperate with the disciplinary investigation, which was prejudicial to the administration of justice. In violating the above Rules of Professional Conduct, respondent also violated Rule 8.4(a). However, the board determined that neither the deemed admitted facts nor Ms. Sapp’s allegations indicate that respondent violated Rules 1.15(c) or 8.4(c). Furthermore, the board found that respondent did not violate Rule 1.3 because he worked on the case until he was suspended from the practice of law.

The board determined that respondent violated duties owed to his clients, the legal system, and as a professional. His conduct with respect to his clients was knowing, and his failure to cooperate with the ODC was intentional. Respondent caused harm to his clients and the disciplinary system. Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

The board found no mitigating factors present, but recognized the following aggravating factors: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution.

In determining an appropriate sanction, the board found that the misconduct subject of 00-DB-143 and 01-DB-007 occurred during the same general time frame |i?as the misconduct subject of respondent’s disbarment in Bonnette II. However, the board determined that the misconduct subject of 02-DB-078 and 04-DB-021 occurred after the misconduct subject of Bonnette II.

Accordingly, the board recommended that respondent be adjudged guilty of additional violations warranting disbarment, pursuant to Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), for his misconduct in 00-DB-143 and 01-DB-007, but that he be disbarred a second time for his misconduct in 02-DB-078 and 04-DB-021. Furthermore, the board recommended that respondent provide his clients with full accountings and refund any unearned fees. Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

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).

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a | -^violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts in this matter indicate that respondent failed to communicate with his clients, failed to withdraw from representations upon being discharged, failed to withdraw from a representation upon being suspended from the practice of law, failed to provide ac-countings, failed to refund unearned fees, and failed to cooperate with the ODC in its investigations. This misconduct violates Rules 1.4, 1.5(f)(6), 1.16(a)(1), 1.16(a)(3), 1.16(d), 8.1(b), 8.1(c), 8.4(a), and 8.4(g) of the Rules of Professional Conduct. Accordingly, having found professional misconduct, the sole issue presented for our consideration is the appropriate sanction.

In determining a sanction, 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).

We agree with the hearing committees and the disciplinary board that respondent’s misconduct was knowing and intentional. He caused actual harm to his clients as well as the disciplinary system. Additionally, there are numerous aggravating factors present, namely prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of 114the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. There are no mitigating factors. Under these circumstances, it does not appear respondent has the requisite honesty and integrity to practice law in this state.

Accordingly, we will accept the board’s recommended sanction and adjudge respondent guilty of additional violations warranting disbarment, pursuant to Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), for his misconduct in 00-DB-143 and 01-DB-007. With regard to the misconduct in 02-DB-078 and 04-DB-021, which occurred outside of the time frame of respondent’s prior discipline, we conclude disbarment is the appropriate sanction. Recognizing that respondent is currently disbarred in Bonnette II, we will extend the minimum period for readmission for an additional five years from the date upon which respondent is eligible to seek readmission from the judgment of disbarment in Bonnette II. See In re: White, 00-2732 (La.4/25/01), 791 So.2d 602 (“[therefore, we believe it is more consistent with the purposes of Supreme Court Rule XIX, § 24 to hold that the five-year minimum period for readmission for a subsequent disbarment should run consecutively to the five-year period stemming from the original disbarment, in the absence of unusual or extenuating circumstances”). Finally, we will order respondent to provide his clients with full accountings and refund any unearned fees.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that Michael J. Bon-nette, Louisiana Bar Roll number 3224, be and he hereby is adjudged, guilty of | ^additional violations warranting disbarment, pursuant to Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), for his misconduct in the matters numbered 00-DB-143 and 01-DB-007. For his misconduct in the matters numbered 02-DB-078 and 04-DB-021, it is ordered that the minimum period within which respondent may seek readmission to the practice of law be extended for a period of five years, commencing from the date respondent would be eligible to seek readmission from the disbarment imposed in In re: Bonnette, 02-2596 (La.1/24/03), 840 So.2d 512. It is further ordered that respondent shall provide his clients with full accountings and refund any unearned fees. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    STATE of Louisiana v. Freddie LeBLANC.
    No. 2006-KP-0169.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   PER CURIAM.

Writ granted. The judgment of the trial court vacating relator’s guilty plea is reversed and his conviction and sentence are reinstated. Relator’s filing below, properly considered as an application for post-conviction relief, see State v. Tran, 00-2471 (La.6/1/01), 793 So.2d 193, was untimely and should not have been considered on the merits by the trial court. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330, pp. 21-22 (La.9/5/95), 660 So.2d 1189, 1201-02. Moreover, relator’s unsubstantiated allegations of ineffective assistance of counsel, in the face of plea negotiations which resulted in the reduction of the charge from second degree murder to manslaughter and a 20-year recommended sentence, do not carry his burden of showing that he pled guilty involuntarily. La.C.Cr.P. art. 930.2. Instead, the circumstances in the record reflect a knowing and voluntary waiver of relator’s rights and compliance with the constitutional requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


text:
    In re C. Justin BROWN, Jr.
    No. 2006-B-1893.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

LThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations of professional misconduct by respondent, including reports that he engaged in the unauthorized practice of law following his 2005 suspension in In re: Brown, 04-1119 (La.1/14/05), 892 So.2d 1. After formal charges were filed, respondent and the ODC submitted a joint petition for consent discipline. The parties stipulate to respondent’s misconduct, and seek his permanent disbarment from the practice of law.

Based on our review of the petition, we agree that permanent disbarment is the appropriate sanction. Respondent has consciously flouted the authority of this court by practicing law after being prohibited from doing so. Guideline 8 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E is clearly applicable, which provides that permanent disbarment may be warranted when, following notice, an attorney “en-gag[es] in the unauthorized practice of law ... during the period of time in which the lawyer is suspended from the practice of law or disbarred.” Accordingly, having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted. The name of Cuthbert Justin Brown, Jr., Louisiana Bar Roll number 18816, shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is | gfurther ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state.

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


text:
    In Re Randal Lee MENARD.
    No. 2006-B-1927.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to timely notify a third party of his receipt of funds and failed to properly remit funds which the third party was entitled to receive. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which respondent admits that his conduct violated Rule 1.15(b) of the Rules of Professional Conduct. Having reviewed the petition for consent discipline,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that

Randal Lee Menard, Louisiana Bar Roll number 20960, be publicly reprimanded.

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

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

JOHNSON and TRAYLOR, JJ., reject the consent discipline.


text:
    State ex rel. George Stanley ROLAND, III v. STATE of Louisiana.
    No. 2006-KH-0244.
    Supreme Court of Louisiana.
    Sept. 15, 2006.
   PER CURIAM.

Writ granted in part; otherwise denied. Because R.S. 14:62.3(B) allows for parole eligibility, and R.S. 15:529.1(G) prohibits only “probation or suspension of sentence,” the district court is directed to amend relator’s sentence to delete the prohibition on parole. Cf, e.g., State ex rel. Turner v. State, 00-2034 (La.4/12/01), 788 So.2d 1199. The district court is directed to make an entry in the minutes reflecting this change and the clerk of court is directed to transmit the original of the minute entry to officer in charge of the institution to which the defendant has been sentenced. La. C.Cr.P. art. 892(B)(2). In all other respects, the application is denied.


text:
    Tonya A. COLVIN v. LOUISIANA PATIENTS COMPENSATION OVERSIGHT BOARD. Thomas Miller, et al. v. Louisiana Patients Compensation Oversight Board.
    No. 2006-C-1104.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Louisiana Patients Compensation Oversight Bd.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. E, Nos. 117-236, 117,237; to the Court of Appeal, Second Circuit, No(s). 40,903-CA, 40,904-CA.


text:
    Elaine DOUCET, et al. v. HUFFINE ROOFING AND CONSTRUCTION, INC. et al.
    No. 2006-CC-2327.
    Supreme Court of Louisiana.
    Sept. 22, 2006.
   In re Doucet, Elaine et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 533-587; to the Court of Appeal, Fifth Circuit, No. 06-C-697.

Denied. Moot.


text:
    John BLALOCK d/b/a the Best Little Doorhouse in Town v. Kenneth LORD d/b/a Kenneth Lord Installation and Construction.
    No. 2006-C-1624.
    Supreme Court of Louisiana.
    Sept. 26, 2006.
   In re Blalock, John d/b/a; Best Little Door House in Town; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Grant, 35th Judicial District Court Div. A, No. 10,417; to the Court of Appeal, Third Circuit, No. 05-0939.

Denied.


text:
    STATE ex rel. Terry EMERSON v. STATE of Louisiana.
    No. 2006-KH-0737.
    Supreme Court of Louisiana.
    Sept. 27, 2006.
   In re Emerson, Terry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, No. 94-F1268; to the Court of Appeal, Second Circuit, No. 40979-KH.

Denied.


text:
    RIVERSIDE TRANSPORTATION, INC. v. David E. BURKE.
    No. 2006-CC-2359.
    Supreme Court of Louisiana.
    Sept. 27, 2006.
   In re Burke, David E.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 471-773; to the Court of Appeal, First Circuit, No. 2006 CW 1897.

Denied.


text:
    STATE of Louisiana v. Wesley DICK.
    No. 2006-KP-2223.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Dick, Wesley; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 309046; to the Court of Appeal, First Circuit, No. 2006 KW 1381.

Granted.


text:
    STATE ex rel. Terrence C. ANDERSON v. STATE of Louisiana.
    No. 2006-KH-0739.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Anderson, Terrence C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 239925; to the Court of Appeal, Third Circuit, No. CW 05-00422.

Writ granted in part; otherwise denied. The Rapides Parish district attorney’s office is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const, art. XII, section 3; R.S. 44:31.1; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537.


text:
    In re APPEAL OF DECISION OF DISCIPLINARY BOARD NO. 04-PDB-087.
    No. 2005-OB-0189.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Shalow, Terrence; — Plaintiff; Applying for Appeal of Decision of Disciplinary Board Office of Disciplinary Board, No. 04-PDB-087.

Leave to appeal denied.