author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Tracy Lenard ALLEN, Appellee.
    No. 2D07-2984.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellant.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals an order granting Tracy Lenard Allen’s motion to suppress. Allen was charged with possession of cocaine, tampering with evidence, possession of paraphernalia, and three counts of willfully refusing to sign and accept a summons. The trial court granted Allen’s motion to suppress based on its finding that police did not have probable cause to stop Allen’s car, because there was no testimony establishing the actual speed of the car. We conclude that the trial court erred in finding that there must be evidence of a vehicle’s actual speed to provide probable cause to stop a vehicle. We reverse.

Detective Ian Rylott testified at the hearing on the motion to suppress that he was conducting a computer check of a pedestrian who had been acting suspiciously when the pedestrian appeared to motion to Allen to drive away from the area. Detective Rylott decided to follow Allen’s vehicle based on the actions of the pedestrian, and he testified that he had to “accelerate quite a bit” to catch up to Allen’s vehicle because Allen appeared to be moving at a high rate of speed. Detective Rylott testified that the area has a speed limit of twenty-five miles per hour and that he had to drive well over fifty miles per hour to catch up to Allen.

In its order, the trial court made the following findings: “The Defendant’s vehicle appeared to be speeding. Detective Rylott had to drive approximately 50 m.p.h. to catch up to the Defendant’s vehicle.... While the Detective testified that he observed the Defendant speeding, he did not testify as to the Defendant’s actual speed.”

We have reviewed the transcript and have determined that the trial court’s factual findings are supported by competent, substantial evidence. See State v. Pruitt, 967 So.2d 1021, 1023 (Fla. 2d DCA 2007) (recognizing that there is a presumption of correctness with regard to trial court’s determination of facts where those factual findings are supported by competent, substantial evidence and that the trial court’s application of the law to the facts is reviewed de novo); Bravo v. State, 963 So.2d 370, 372 (Fla. 2d DCA 2007) (holding that trial court’s determination of facts has a presumption of correctness, but trial court’s legal conclusions are subject to de novo review). However, we hold that the trial court erroneously concluded that there must be evidence of a vehicle’s actual speed to provide probable cause to stop the vehicle.

Police may stop a vehicle if the officer has a well-founded, articulable suspicion that the occupant has committed a traffic offense. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Eady, 538 So.2d 96 (Fla. 3d DCA 1989). The Third District has held that police may stop a vehicle for a speeding violation based on the officer’s visual or aural perceptions and that verification of actual speed by the use of radar equipment or clocking is not necessary to justify the stop. State v. Joy, 637 So.2d 946 (Fla. 3d DCA 1994); Eady, 538 So.2d at 97.

In Joy, 637 So.2d at 947, a police officer observed a truck that appeared to be traveling at a high rate of speed cross the intersection in front of the officer. The officer testified that he heard a “whoosh” sound, saw dust, and heard the truck’s engine revving. Id. As in the present case, the officer in Joy testified that he had to accelerate at an unusually high rate of speed to catch up with the truck. Id. After finding that the speedometer reading was inadmissible, the Third District held that the stop was nevertheless proper because there was a reasonable suspicion that the truck was speeding based on the officer’s visual and aural perceptions. Id. at 947-48.

Similarly, in Eady, 538 So.2d at 97, the officer heard the vehicle’s tires screeching and heard the vehicle’s gear shift, and he testified that the vehicle appeared to be traveling at a high rate of speed. The court held that the officer’s visual and aural perceptions supported his reasonable suspicion that the vehicle was traveling too fast under the circumstances. Id.

Other states have also concluded that an officer’s observations of a vehicle may provide reasonable suspicion that the vehicle is speeding. State v. Barnhill, 166 N.C.App. 228, 601 S.E.2d 215, 218 (2004) (holding that officer’s observations of the speed of the truck, coupled with the sound of the engine racing and the bouncing of the truck as it passed through the intersection, gave officer probable cause to believe that truck was exceeding a speed greater than was reasonable and prudent under the conditions); Taylor v. Wimes, 10 Neb.App. 432, 632 N.W.2d 366, 372 (2001) (“Where the actual speed of the driver’s vehicle is not at issue, the officer’s estimate that the driver is exceeding the speed limit need not be confirmed with electronic or mechanical speed measurement devices to confer probable cause on the officer to make a stop.”).

In the present case, Detective Rylott testified, and the trial court specifically found,- that Allen’s vehicle appeared to be speeding. Therefore, Detective Rylott had probable cause to stop Allen’s car for the traffic infraction.

Accordingly, we reverse the order granting Allen’s motion to suppress and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and LaROSE, JJ., Concur.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B).

      . We note that; as compared to the standard of probable cause required to stop a vehicle, proof beyond a reasonable doubt is required to support a conviction for speeding. § 318.14(6), Fla. Stat. (2006).


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Lewis BRISCOE, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3962.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
   WALLACE, Judge.

Lewis Briscoe appeals the summary denial of his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of Mr. Bris-coe’s claim of trial court error. We reverse the denial of Mr. Briscoe’s claims of ineffective assistance of counsel and remand for further proceedings.

Mr. Briscoe raised two claims of ineffective assistance of counsel but failed to allege any prejudice resulting from his trial counsel’s conduct. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The postcon-viction court found the claims to be legally insufficient and denied the claims.

However, the postconviction court did not have the benefit of the Supreme Court of Florida’s recent decision in Spera v. State, 971 So.2d 754 (Fla.2007). In Spera, the court held that “in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected.” Id. at 755. There is nothing in the limited record before this court to demonstrate that Mr. Briscoe could not sufficiently allege prejudice in connection with his claims of ineffective assistance of counsel if given the opportunity to amend his motion.

Accordingly, we reverse the postconviction court’s summary denial of Mr. Bris-coe’s claims of ineffective assistance of counsel. On remand, the postconviction court shall strike those claims with leave to amend within a specific period of time in accordance with Spera.

Affirmed in part, reversed in part, and remanded with instructions.

FULMER and CANADY, JJ., Concur.


author: PER CURIAM.

text:
    Kenneth BALDWIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2124.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.

      James Marion Moorman, Public Defender, and Jackson S. Flyte, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Kenneth Baldwin appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Without further comment, we affirm the summary denial of claim three of his motion and the nonsummary denial of claims one, four, and five of his motion.

In claim two, Baldwin asserted that defense counsel was ineffective for failing to object to the State’s comments in closing arguments in which the State allegedly vouched for the credibility of the State’s witnesses. The postconviction court denied this claim as conclusory because Baldwin failed to allege which comments made by the State were objectionable. We agree that Baldwin’s claim is conclusory and facially insufficient. However, in light of the recent opinion in Spera v. State, 971 So.2d 754 (Fla.2007), we reverse the portion of the postconviction court’s order denying this claim and remand for the postconviction court to strike this portion of Baldwin’s motion with leave to amend within a reasonable period of time.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, CANADY, and WALLACE, JJ., Concur.


text:
    Ricardo WHYMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5940.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
   PER CURIAM.

Affirmed. This court has recently discussed the appropriate uses of a petition for a writ of habeas corpus in regard to issues related to a criminal case in Valdez-Garcia v. State, 965 So.2d 318 (Fla. 2d DCA 2007). The challenge Mr. Whyms attempts to mount against his convictions and pleas because of an alleged illegal confession may not be presented by a petition for a writ of habeas corpus filed in the county of imprisonment.

Affirmed.

ALTENBERND, CASANUEVA, and SILBERMAN, JJ., Concur.


author: LAWSON, J.

text:
    Timothy Ivan MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-4227.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2008.
    Timothy I. Morris, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   LAWSON, J.

Timothy Ivan Morris appeals from the denial of his petition for writ of habeas corpus, alleging entitlement to immediate release from prison. Although we agree that Morris is entitled to immediate release, we also find that jurisdiction to issue the writ lies only in a court with territorial jurisdiction over the physical location at which Morris is detained. Therefore, we order that Morris’ petition be immediately transferred to the circuit court for the Third Judicial Circuit, in and for Taylor County, Florida.

Morris was convicted of armed robbery and sentenced to a true split sentence on August 21,1987. Originally, the court sentenced Morris to 35 years in prison, with 30.5 years suspended. After the first 4.5 years of incarceration, the suspended 30.5 years was to be served on probation. This was a “true split sentence.” See Gibson v. Fla. Dep’t of Corr., 885 So.2d 376, 381 (Fla.2004). Upon his release from prison, Morris violated his probation by absconding from supervision in 1998. The trial court issued an arrest warrant based upon the probation violation, and Morris was ultimately arrested in Georgia, in 2006, on the outstanding warrant. He admitted the violation in an open plea to the court.

When a defendant violates the probationary portion of a true split sentence, “the judge may then resentence the defendant to any period of time not exceeding the remaining balance of the withheld or suspended portion of the original sentence, provided that the total period of incarceration, including time already served, may not exceed the one-cell upward increase permitted by” the sentencing guidelines. Franklin v. State, 545 So.2d 851, 852 (Fla.1989) (emphasis added). The sentencing range permitted under Morris’ scoresheet, with the one-cell “bump” for Morris’ probation violation, was 3.5 to 7 years. Therefore, the trial court could have re-imposed up to 7 years of the original 35-year sentence, with credit for the prior 4.5 years served. See Johnson v. State, 641 So.2d 970, 971 n. 2 (Fla. 2d DCA 1994) (describing two methods employed for imposing the remainder of a true split sentence, at least for offenses committed prior to the effective date of section 948.06(6), Florida Statutes (1989)). Alternatively, the court could have imposed as much as 2.5 years of the suspended 30.5 year sentence (with no credit for the prior 4.5 years previously served). Id.; see also Roberts v. State, 702 So.2d 239 (Fla. 2d DCA 1997) (holding that a defendant is not entitled to any credit for the original incarcerative portion of a true split sentence when the trial court imposes only the suspended portion of the sentence upon a violation of probation).

In this case, the trial court elected the first sentencing option, imposing a six-year sentence with express directions to the Department of Corrections (“DOC”) that Morris be given credit for his time served on the 4.5-year sentence, less any forfeited gain time. Clearly, however, DOC has misconstrued Morris’ sentence. In papers attached to his petition, DOC cites Roberts as the basis for its decision to deny Morris credit for any of the 4.5 years previously served on this charge. In other words, DOC is treating the sentence as if the trial court had chosen the second sentencing option, and had imposed a six-year portion of the 30.5-year suspended sentence. This, of course, would result in an overall sentence of 10.5 years (the original 4.5-year incarcerative sentence plus 6 years of the suspended sentence), which would exceed the permissible guidelines range.

With no gain time forfeiture allowed and with Morris entitled to “basic” gain time during his current incarcerative term based upon his offense date, see section 944.275, Florida Statutes, we conclude that Morris is entitled to immediate release and is only being held because DOC has improperly denied Morris credit for the prior 4.5 years served in prison. However, because jurisdiction properly lies only in a court with territorial jurisdiction over the facility at which Morris is being detained, a reversal is not appropriate. Therefore, we quash the order denying Morris’ petition, and direct that Morris’ petition for writ of habeas corpus be transferred to the circuit court for the Third Judicial Circuit, in and for Taylor County, Florida, for immediate action by that court.

ORDER QUASHED; PETITION FOR WRIT OF HABEAS CORPUS TO BE TRANSFERRED TO THIRD CIRCUIT, TAYLOR COUNTY.

PALMER, C.J., and GRIFFIN, J., concur.

      . See § 79.09, Fla. Stat. (2007); Bush v. State, 945 So.2d 1207, 1212 n. 8 (Fla.2006); Richardson v. State, 918 So.2d 999, 1001 (Fla. 5th DCA 2006).

      . All pleadings filed with this court indicate that Morris is being detained at the Taylor Correctional Institution in Perry, Florida.

      . Morris incorrectly argues that this sentence was illegal because it exceeded the guidelines range of 2.5 to 5.5 years of incarceration permitted by his original 1984 sentencing guidelines scoresheet. Contrary to Morris' argument, "a judge is entitled to impose a true split sentence for any length of time provided by law so long as the incarcerative portion falls within the guidelines recommendation.” Franklin v. State, 545 So.2d 851, 852 (Fla.1989). Here, the 4.5-year incarcera-tive portion of the sentence fell within the permissible guidelines range.

      . Although the trial court appropriately recognized the possibility for gain time forfeiture, in general, Morris committed his crime prior to the October 1, 1989, effective date of the Chapter 89.531, Laws of Florida (codified in section 948.06(7), Florida Statutes), which authorized DOC to forfeit previously-earned gain time upon revocation of a defendant’s probation. See Glenn v. State, 639 So.2d 1036, 1038 (Fla. 5th DCA 1994). Therefore, DOC cannot revoke any of Morris’ previously-earned gain time when crediting him with the 4.5 years already served. Id.

      . It appears from these attachments that Morris has exhausted his DOC administrative remedies, which is a prerequisite to habeas relief in this context. Bush, 945 So.2d at 1210.

      . Because Morris was entitled to full credit for the prior 4.5-year term served, with no gain time reduction, the remaining prison term as of the date of Morris’ violation of probation sentencing on January 24, 2007, was 1.5 years or 18 months. Under section 944.275(4)(a) & (6)(a), the basic gain-time provision applicable to Morris’ 1986 crime, Morris' was immediately entitled to 6 months of basic gain time credit (10 days for each of the additional 18 months of his 6-year sentence), which would have produced a release date of January 24, 2008. Additionally, Morris was credited with an additional 84 days at the time of his VOP sentence for time served in jail while awaiting the VOP hearing, which should have produced a release date of November 4, 2007, even without additional gain time credits which Morris may have earned pursuant to other applicable gain time provisions.


text:
    Terrance GILCRIST, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D07-4297.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2008.
    Terrance Gilchrist, Port St. Lucie, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

GRIFFIN, SAWAYA and EVANDER, JJ., concur.


text:
    John ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4052.
    District Court of Appeal of Florida, Second District.
    April 9, 2008.
    Bruce R. Jacob, Gulfport, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

John Robinson challenges his conviction for first-degree murder. We affirm without prejudice to Robinson’s right to seek postconviction relief under Florida Rule of Criminal Procedure 3.850.

Affirmed.

STRINGER and WALLACE, JJ., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


text:
    Oscar BELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4570.
    District Court of Appeal of Florida, Second District.
    April 9, 2008.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Oscar Bell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sara Elizabeth Macks, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Oscar Bell appeals his conviction and sentence following his no contest plea for one count of possession of cocaine. Bell filed a pro se brief in addition to the Anders brief filed by the Public Defender. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla.1991). The only issue raised in Bell’s pro se brief is a claim of ineffective assistance of counsel.

We affirm the conviction and sentence. We decline to rule on Bell’s ineffective assistance of counsel claim on direct appeal; however, this holding is without prejudice to Bell raising his ineffective assistance of counsel claim in a subsequently filed motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, within the time remaining under rule 3.850(b).

STRINGER and KELLY, JJ., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


author: STONE, J.

text:
    STATE of Florida, Appellant, v. Betty LANGDON, Appellee.
    No. 4D07-316.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   STONE, J.

We reverse the sentence imposed upon Langdon’s open plea of no contest to charges of possession of cocaine with intent to sell or deliver and possession of drug paraphernalia. The trial court relied on section 948.034, Florida Statutes, in sentencing Langdon to drug offender probation in a downward deviation from the guidelines for which she was not eligible.

In case 06-15090, Langdon pled guilty to possession of cocaine with intent to sell or deliver, in violation of section 893.13(l)(a)l., Florida Statutes (2006). In case 04-19230, in which the trial court revoked Langdon’s probation, the underlying offense was possession of cocaine, a violation of section 893.13(6)(a), Florida Statutes (2004). In both cases, the trial court imposed a sentence of thirty months in prison (with twenty months suspended) to be followed by eighteen months drug offender probation.

Section 948.034 covers terms and conditions of probation in a community residential drug punishment center for defendants committing the drug offenses enumerated in chapter 893, Florida Statutes. See Parker v. State, 839 So.2d 736, 737 (Fla. 1st DCA 2003). Section 948.034 is an alternative to the sentencing guidelines concerning certain chapter 893 drug-related offenses. See Jones v. State, 813 So.2d 22, 25 n. 2 (Fla.2002). When considered alone, it appears Langdon’s drug offenses would qualify for probation under the statute. However, “statutes must be read together to ascertain their meaning.” Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000); see also Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (stating that, “[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another”).

Reading section 948.034 together with the relevant portions of sections 921.187 and 893.13■ — -both of which reference section 948.034 — it follows that a defendant who has a felony conviction of a non-drug related offense is not eligible to receive an alternate sentence under section 948.034. Here, the criminal punishment code scoresheet reflects that Lang-don was such a defendant; in addition to having multiple prior possession of cocaine convictions, Langdon also had a prior conviction for grand theft, a third-degree felony.

Chapter 893 is entitled “Drug Abuse Prevention and Control,” and section 948.034 is an alternative to the sentencing guidelines concerning certain chapter 893 drug-related offenses. Jones, 813 So.2d at 25 n. 2. Sections 893.13, 921.187, and 948.034 are not mutually exclusive, and when read together, clearly are part of a legislative package preventing a defendant in Langdon’s position, having prior convictions not allowed under section 893.13, from benefiting from a downward departure.

The record reflects that the trial court was concerned that section 948.034 did not reference the other two statutes, sections 921.187 and 893.13. However, statutes having related purposes may be read together without the need for a specific reference or directive within the language of either statute. See, e.g., DuFresne v. State, 826 So.2d 272, 276 (Fla.2002). Here, all of the chapters at issue deal with sentencing combined with drug abuse control. Section 921.187 (Disposition and sentencing; alternatives; restitution) states that “[t]he alternatives provided in this section for the disposition of criminal cases shall be used in a manner that will best serve the needs of society, punish criminal offenders, and provide the opportunity for rehabilitation.” § 921.187(1), Fla. Stat.

Further, in case 04-19230, in which the trial court revoked Langdon’s probation based on the 2006 offenses, the court could have imposed any sentence it could have originally imposed. The trial court, thus, erred in sentencing Langdon to drug offender probation under section 948.034(2), where Langdon had five previous convictions for possession of cocaine. For violations of section 893.13(6)(a) (possession of cocaine), the legislature provided in section 948.034(2) that offenders with up to four previous convictions are eligible for drug offender probation. The record reflects, and Langdon concedes, that Langdon has more than four drug possession convictions.

We, therefore, reverse and remand for imposition of a guideline sentence.

STEVENSON and TAYLOR, JJ., concur.

      . Section 921.187, Florida Statutes, states in relevant part:
      (b)l. Notwithstanding any provision of former s. 921.001 or s. 921.002 to the contrary, on or after October 1, 1993, the court may require any defendant who violates s. S93.13(l)(a)l., ... and meets the criteria described in s. 893.13(1), to successfully complete a term of probation pursuant to the terms and conditions set forth in s. 948.034(1), in lieu of serving a term of imprisonment.
      2. Notwithstanding any provision of former s. 921.001 or s. 921.002 to the contrary, on or after October 1, 1993, the court may require any defendant who violates s. 893.13 ... (6)(a), and meets the criteria described in s. 893.13(11), to successfully complete a term of probation pursuant to the terms and conditions set forth in s. 948.034(2), in lieu of serving a term of imprisonment, [emphasis added]

      . Sections 893.13(10) and (11), which are referred in the above statute, provide:
      (10) Notwithstanding any provision of the sentencing guidelines or the Criminal Punishment Code to the contrary, on or after October 1, 1993, any defendant who:
      (a) Violates subparagraph (l)(a)l .... and
      (b) Has not previously been convicted, regardless of whether adjudication was withheld, of any felony, other than a violation of subparagraph (l)(a)l., subparagraph (1)(c)2., subparagraph (l)(d)2., subpara-graph (2)(a) 1., or paragraph (5)(a),
      may be required by the court to successfully complete a term of probation pursuant to the terms and conditions set forth in s. 948.034(1), in lieu of serving a term of imprisonment.
      (11) Notwithstanding any provision of the sentencing guidelines or the Criminal Punishment Code to the contrary, on or after January 1, 1994, any defendant who:
      (a) Violates subparagraph ... (6)(a); and
      (b) Has not previously been convicted, regardless of whether adjudication was withheld, of any felony, other than a violation of subparagraph (l)(a)2., subparagraph (2)(a)2., paragraph (5)(b), or paragraph (6)(a),
      may be required by the court to successfully complete a term of probation pursuant to the terms and conditions set forth in s. 948.034(2), in lieu of serving a term of imprisonment, [emphasis added]

      . See, e.g., Williams v. State, 889 So.2d 969 (Fla. 4th DCA 2004) (a trial court, in imposing sentence following a revocation of probation, may impose any sentence which it could have originally imposed).


author: SHAHOOD, C.J.

text:
    Ralph BRILLINGER, Shelly Stark and Lori Nedzweckas, Appellants, v. CITY OF LAKE WORTH, Florida, Appellee.
    No. 4D07-2033.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.
    Rehearing Denied April 30, 2008.

      John C. Davis of Law Offices of John C. Davis, Tallahassee, and Donna M. Ballman of Donna M. Ballman, P.A., Fort Lauder-dale, for appellants.
    Richard A. Sherman, Sr., of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, and Kenneth P. Carman of Carman, Beauchamp & Sang, P.A., Boca Raton, for appellee.
   SHAHOOD, C.J.

The City of Lake Worth had a policy of recording all incoming and outgoing calls from its 911 call center. Ralph Brillinger and Lori Nedzweckas, employees of the City, made personal outgoing calls from the call center. Shelly Stark, not a City employee, made incoming calls to the call center. All of the above calls were recorded. On July 22, 2002, Brillinger, Stark, and Nedzweckas filed a class action complaint against the City for damages and declaratory and equitable relief arising out of the City’s Police Department’s interception, recording and use of telephone communications in violation of the Florida Security of Communications Act. The trial court granted the City’s Renewed Motion for Summary Judgment. We agree and affirm.

After an evidentiary hearing, the trial court found that the Lake Worth Police Department operated a communications center at its offices and since July of 2000, all incoming and outgoing telephone calls made to and from the center have been intercepted and recorded by the City. The center has four 911 emergency phones with two additional lines that were unpublished, non-emergency lines. There were also five other non-911 phones containing six incoming telephone lines, only one being a published, non-emergency number; and an additional unpublished, non-emergency line.

Since February 4, 2000, the City informed only callers who used the published non-emergency number that their calls were being recorded. Individuals making calls to and from the unpublished, non-emergency lines were not notified that their calls were being recorded. The City started notifying these callers that their calls were being intercepted and recorded only on or about July 26, 2002.

Brillinger and Nedzweckas claim that they did not know their calls on the unpublished, non-emergency lines were recorded prior to being shown transcripts of telephone conversations that were intercepted and recorded by the City. Moreover, Stark received numerous telephone calls from Nedzweckas from the communications center and made numerous telephone calls to Nedzweckas at the Center which were intercepted and recorded by the City.

The trial court decertified the class and dismissed the complaint. Appellants filed a First Amended Complaint and refiled a motion for summary judgment on liability. In response the City filed a Motion for Summary Judgment. The trial court denied both motions.

The City filed a Renewed Motion for Summary Judgment, which the trial court granted.

The trial court found in its final summary judgment that “[t]he methods used by Lake Worth were reasonable and comported with Florida law” and “[t]he recordings were made within the statutory scheme, and within the scheme provided for 911 calls and responses thereto.”

Section 934.03(1), Florida Statutes (2000), of the Florida Communications Act prohibits the intentional interception of any “wire, oral, or electronic communication[s].” However, the Act provides exceptions for law enforcement agencies, two of which are relevant but inapplicable to this case.

The first exception allows the interception of a wire, oral, or electronic communication by an investigative or law enforcement officer when the officer is “a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.” § 934.03(2)(c), Fla. Stat. (2000). This exception does not apply to a blanket recording of every telephone call received on a police department’s emergency complaint and information lines.

Another exception is found in section 934.03(2)(g), Florida Statutes (2000), which authorizes recordings of incoming calls on designated 911 telephone lines and published non-emergency telephone lines, and outgoing 911 call-backs. However, the City recorded all incoming and outgoing calls- from its communications center, which included unpublished non-emergency lines, an unpublished non-emergency number, along with outgoing calls that are not 911 call-backs, taking this case outside the exception.

Beyond the exceptions found in section 934.03, the City argues that the Florida Emergency Telephone Act permits it to record all incoming and outgoing calls from its 911 call center. Section 365.171, Florida Statutes, empowers the State Technology Office (“STO”) of the Department of Management Services (“department”) with the following purpose:

(4) State plan. — The department shall develop a statewide emergency telephone number “911” system plan. The plan shall provide for:
(a) The establishment of the public agency emergency telephone communications requirements for each entity of local government in the state.
(b) A system to meet specific local government requirements. Such system shall include law enforcement, firefighting, and emergency medical services and may include other emergency services such as poison control, suicide prevention, and emergency management services.
The department shall be responsible for the implementation and coordination of such plan. The department shall adopt any necessary rules and schedules related to public agencies for implementing and coordinating such plan, pursuant to chapter 120.

§ 365.171(4), Fla. Stat. (2000).

Pursuant to section 365.171 the STO enacted section 3.4.1.1(I) of the 9-1-1 Emergency Telephone Number Plan, which provides that “Each call taker shall be equipped with access to instant playback recording capability with at least 8 minutes of storage capacity.” Also, the STO provided for a backup facility if the primary public safety answering point (“PSAP”) is down:

(C) Enhanced 9-1-1 systems shall include provisions for back-up facilities to which calls can be routed in the event of failure of a Primary PSAP.
Type 3 systems shall establish an alternate safety agency to which voice only calls can be routed over existing seven-or ten-digit lines.

§ 3.4.1.3(C), 9-1-1 Emergency Telephone Number Plan.

The City argues that in order to comply with the 911 statute all the calls needed to be recorded as it is impossible to know whether an incoming call is an emergency call or a personal call. In support, testimony and affidavits from those familiar with the 911 system showed that the recording equipment cannot know whether an out-going call is a personal call or an emergency call back and that the emergency and non-emergency lines are not distinguished when received. However, the Florida Emergency Telephone Act is not an exception to the prohibitions found in the Florida Communications Act.

Nevertheless, we hold that the City had a “good faith belief’ that the manner in which the instant playback system was installed in the PSAP was legal. § 934.10(2)(c), Fla. Stat. (2000). The instant playback system followed the requirements of the Florida 911 Plan implemented by the STO and, according to affidavits on record, the City’s PSAP is set up in the same manner in which the PSAPs are set up in all other cities and counties in Florida. Although the trial court did not grant the City’s motion based on the good faith exception, its decision was correct and should be affirmed. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (under the tipsy coachman doctrine, an appellate court may affirm a trial court’s decision that was correct in result, but based on the wrong reason).

We are unpersuaded by all other issues raised by appellant and affirm without further discussion.

Affirmed.

POLEN and MAY, JJ., concur.


text:
    Curtis NAIRN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-5042.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   SHAHOOD, C.J.

Appellant, Curtis Nairn, appeals his conviction, following a jury trial, for second degree murder and a sentence of life in prison. Appellant raises four issues on appeal, all of which we have carefully considered and affirm. We write to address only the third issue, in which appellant claims his trial counsel was ineffective.

Appellant argues that his counsel failed to introduce certain evidence at trial, to prevent an expert witness from testifying, and erred in using a redacted statement of his in cross-examination.

“As a general rule, claims of ineffective assistance of counsel are not ordinarily cognizable on direct appeal. The exception is when the error is apparent on the face of the record, which is rarely the case.” Desire v. State, 928 So.2d 1256, 1257 (Fla. 3d DCA 2006); Bruno v. State, 807 So.2d 55, 63 n. 14 (Fla.2001) (“A claim of ineffectiveness can properly be raised on direct appeal only if the record on its face demonstrates ineffectiveness.”); see, e.g., Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007) (ineffective assistance of counsel apparent on face of record based on failure to request a specific jury instruction).

The claims appellant asserts are not apparent on the face of the record. The claims are more appropriately addressed by the trial court at a post-conviction hearing. See Bradberry v. State, 922 So.2d 457 (Fla. 4th DCA 2006).

We affirm on this issue without prejudice for appellant to raise it in a motion for post-conviction relief. We affirm as to all other issues raised without further discussion.

Affirmed.

POLEN and MAY, JJ., concur.


text:
    Donald TOBKIN, Appellant, v. George MANIATAKOS and Susan Maniatakos, Appellees.
    No. 4D07-1151.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.

      Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and John B. Ostrow of John B. Ostrow, P.A., Miami, for appellant.
    Clifford A. Wolff of The Wolff Law Firm, Fort Lauderdale, for appellees.
   PER CURIAM.

We affirm without prejudice to pursue a separate action for quantum meruit.

STONE, WARNER and FARMER, JJ, concur.


author: PER CURIAM. FARMER, J.,

text:
    Marcus GASKIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5102.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.
    Marcus Gaskin, Moore Haven, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Marcus Gaskin appeals the summary denial of his motion for post-conviction relief. We affirm as to ground three, which we conclude cannot be made legally sufficient. See Sanders v. State, 946 So.2d 953 (Fla.2006). We reverse the summary denial of grounds one and two and direct the trial court on remand to strike those two grounds as legally insufficient and allow Gaskin to refile them, if he can do so in good faith, within a short amount of time. See Spera v. State, 971 So.2d 754 (Fla.2007).

Affirmed in part, Reversed in part, and Remanded.

SHAHOOD, C.J., and STONE, J., concur.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring specially.

I agree that defendant should be allowed to amend grounds one and two. They are legally insufficient because, as phrased, they do not appear to indicate a probability that the outcome would have been different with the precise testimony the two witnesses were said to have been able to give.


text:
    J.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3236.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

This is an appeal from a judgment of conviction and sentence on the charge of simple battery. Appellant argues that the trial court erred in entering an upward departure commitment from that recommended by the Department of Juvenile Justice (DJJ). Appellant also urges that the trial court erred in ordering restitution during the disposition hearing without notice to appellant of a restitution hearing and without addressing 'his ability to pay.

We affirm the trial court’s upward departure commitment, but reverse the restitution order and remand for further proceedings.

In this case, the DJJ recommended that J.G. be placed in a low risk residential program. The trial court disagreed and placed J.G. in a moderate risk residential program.

A trial court may depart from the DJJ. recommendations, but must state on the record the reasons for such departure:

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

§ 985.433(7)(b), Fla. Stat. (2007).

In making its decision, the trial court entered extensive findings supported by competent, substantial evidence which focused on three reasons for the departure: 1) appellant is a criminal street gang member; 2) the seriousness of the offense; and 3) that probation is not working.

We hold the record evidence in this case supports the trial court’s determination to place J.G. in a moderate risk residential program.

Addressing the restitution issue we note that during the disposition hearing the victim’s father testified that the medical bills from the attack on his son amounted to $3,236.78 and that he lost two days of work totaling $240 in lost wages. The victim’s father had brought the medical bills into court and the trial court asked if there was any objection. The trial court, hearing no objection, ordered J.G. and his parents to pay the sum of $3,476.78 in restitution to the victim’s father.

In order to award restitution, a trial court must first conduct a restitution hearing addressing the child’s ability to pay and then the amount of restitution to be paid. A.B. v. State, 910 So.2d 415, 417 (Fla. 4th DCA 2005) (“It was reversible error for the trial court not to hold the requisite restitution hearing prior to ordering a restitution amount.”). If the court intends to establish the amount of restitution based solely on the evidence adduced at a hearing of the charge of delinquency, the child must be given notice:

Without such notice, the child had no way of knowing that he would have to offer evidence as to the amount of any potential restitution at the hearing to determine whether he was even guilty of the charge. Imposition of a fixed amount of restitution without notice or hearing is error.

L.S. v. State, 975 So.2d 554, 555 (Fla. 4th DCA 2008).

In this case, there is no record evidence that J.G. was given notice that the evidence adduced at the disposition hearing would determine the amount of restitution, nor did the trial court address the child’s ability to pay. As a result, the restitution order must be reversed and the cause remanded for the trial court to conduct a restitution hearing to determine J.G.’s ability to pay and providing him notice that the evidence at the hearing will determine the amount of restitution.

Accordingly, we affirm the judgment of conviction and sentence and reverse and remand the restitution order entered by the trial court.

Affirmed; Restitution Order Reversed and Remanded.

POLEN and MAY, JJ., concur.


text:
    Joseph ALLWINE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-956.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Julie D. Lindahl, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Allwine was convicted of dealing in stolen property (count I) and grand theft (count II). Both charges arose out of the same scheme or course of conduct. He correctly asserts he may not be convicted of both grand theft and dealing in stolen property. It is well-settled that, while the state may charge both, the defendant may be convicted of only one. Hall v. State, 826 So.2d 268 (Fla.2002); Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007).

Allwine initially contends that the evidence was insufficient to sustain a conviction of dealing in stolen property. The evidence reflects that Allwine and his wife/ co-defendant pawned a television and VCR stolen from a school. At the time of the theft, he was on a plumbing job at the school.

Allwine argues that when, as in this case, stolen property is pawned and then redeemed shortly thereafter, a defendant cannot be convicted of dealing in stolen property. He claims the property was “posted as collateral for a loan” and, thus, was used for personal benefit. He relies on State v. Camp, 596 So.2d 1055 (Fla.1992), which we deem distinguishable.

In Camp, the supreme court held that Camp did not “traffic,” for purposes of dealing in stolen property, where he stole checks and then negotiated the stolen checks. Id. at 1057. The court noted that a reading of section 812.019 in that manner would result in a circumstance of dealing in stolen property whenever money was stolen and then transferred to a third person in exchange for goods. Id. In so holding, the court added:

this statute was not designed to punish persons who steal for personal use. [footnote omitted] Rather, it was designed to dismantle the criminal network of thieves and fences who knowingly redistribute stolen property.
We agree with the First District that [ejvidence of theft only, with the intent personally to put the stolen item or items to normal use, constitutes only the crime of theft and not the crime of trafficking or dealing in stolen property within the meaning of chapter 812, Florida Statutes, even if the normal use is achieved by some form of transfer, distribution, dispensation, or disposition of the item.

Id. at 1057.

Here, however, there has been a “transfer” as contemplated by the dealing in stolen property statute. See State v. Nesta, 617 So.2d 720 (Fla. 2d DCA 1993) (holding that, “[o]ne who attempts to sell or sells stolen goods to a pawnbroker is not using the stolen items for his own personal use but has met the statutory requirements for dealing in stolen property.”); accord State v. Holcomb, 627 So.2d 127, 127-28 (Fla. 5th DCA 1993) (“We, likewise, find no merit in Holcomb’s argument in the instant case that he did not deal in stolen property because when he pawned the stolen goods, he simply obtained a loan or entered into a conditional sales agreement that allowed him to repay the money received from the pawn and redeem the goods. We hold that such a transaction is a ‘transfer’ as that term is used in the statutory definition of trafficking in property.”).

We also reject Allwine’s reliance on Bertone v. State, 870 So.2d 923 (Fla. 4th DCA 2004), in which this court reversed the defendant’s conviction for dealing in stolen property. In that case, while the defendant similarly pawned and later retrieved two stolen saws from a pawn shop, the reason for reversal was that the defendant gave an unrefuted and patently reasonable explanation for his possession. Id. In other words, the statutory element that Ber-tone knew or should have known the saws were stolen was not met. Here, however, Allwine stole the items and then pawned them.

Next, Allwine contends that the trial court erred in denying his motion for judgment of acquittal on the grand theft count where the state failed to prove the value of the property at the time of the theft exceeded $300, as required in a prosecution for grand theft of the third degree. See § 812.014(2)(c)l., Fla. Stat. (2004). Our review of the record satisfies us that the evidence presented by the state was legally sufficient. Accordingly, we affirm that issue without further discussion.

With respect to the sentence on remand, the briefs of both parties anticipate re-sentence will be for the dealing in stolen property conviction. We note, however, that neither brief cites Hall.

Section 812.025, Florida Statutes (1999), provides that where a defendant is charged in connection with one scheme or course of conduct including both offenses, “the trier of fact may return a guilty verdict on one or the other, but not both.” In Hall, the supreme court recognized that under this statute, a defendant cannot be found guilty of both crimes and that this is resolved by the jury, as an issue of fact, in deciding whether the defendant is either a “common thief’ or endeavored to traffic, based on the intended use of the stolen property. But here, there was no such resolution by the jury.

As the Hall and Aversano opinions were not raised in the briefs in this appeal, we do not resolve or address, here, whether, under the circumstances, the defendant may be entitled, on remand, to elect to be sentenced for grand theft rather than, as stated in the briefs, for dealing in stolen property, given that he was not afforded the right to have the jury elect to convict of one offense or the other.

We remand with direction that the trial court strike Allwine’s conviction as to either grand theft or dealing in stolen property and re-sentence Allwine accordingly. We remand for modification of the judgment and re-sentencing.

POLEN and MAY, JJ., concur.


author: KLEIN, J.

text:
    Josper SANON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4883.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of felony cruelty to an animal as a result of a dog being dropped from a fifth floor apartment. Appellant’s son, who was not a witness at the trial, made a statement to an officer incriminating appellant, and appellant argues that the court erred in admitting this statement under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We reverse.

The officer testified that he and a trainee officer were driving in a gated community when he saw a boy talking on a cell phone, crying and flailing his arms. When the officer asked the boy what had happened, the boy responded that his father had thrown his dog off the balcony. The boy showed the dog’s body, which was about twenty-five feet from the building, to the officer. Appellant’s explanation was that he and his son had been arguing about the fact that the son had not cleaned up after the dog, that appellant was holding the dog, and that when his son tried to take it away, it accidentally flew out of his hands and off the balcony of the apartment. The incident had occurred about twenty minutes before the officer spoke to the son.

Appellant’s son did not, in response to a subpoena, show up at trial, and, over appellant’s objection, the officer was allowed to testify as to the son’s statement that appellant had thrown the dog off the balcony. We conclude that under Crawford, and more particularly Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), as interpreted by the Florida Supreme Court in State v. Lopez, 974 So.2d 340 (Fla.2008), the statement to the officer was inadmissible.

In Davis the Supreme Court addressed two different types of statements made by victims of domestic battery in the cases of State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (2005), and Hammon v. State, 829 N.E.2d 444 (Ind.2005). The Florida Supreme Court explained Davis in Lopez:

In Davis, the relevant statements were made to a 911 emergency operator as the declarant was actually being attacked by the defendant. The declarant identified Davis as the assailant. In Hammon, the relevant statements were made to police officers who had responded to a domestic dispute call. The de-clarant recounted to the police the details of a previous attack by Hammon. The Supreme Court concluded that the statements made during the 911 call in Davis were nontestimonial, while the statements to the police officers in Hammon were testimonial. As explained by the Supreme Court, the distinction rests on the primary purpose- of the interrogation in each instance. 126 S.Ct. at 2273-74.
In Davis, the questioning by the 911 operator was to enable the responding officers to meet an ongoing emergency. The Supreme Court noted the following circumstances in Davis: the declarant was speaking about events as they were actually happening; the declarant was facing an ongoing emergency and made the 911 call in order to seek help against a bona fide physical threat; the elicited statements were crucial to resolving the ongoing emergency (i.e., the 911 operator asked who was attacking the caller, whether the attacker was using a weapon, and whether the attacker had been drinking); and the declarant was giving frantic answers over the phone in the midst of hectic events and an unsafe environment. 126 S.Ct. at 2276-77.
In contrast, the Supreme Court concluded that the primary purpose of the interrogation in Hammon was to establish or prove past events potentially relevant to later criminal prosecution.

The state argues that the son’s statement was nontestimonial, because no investigation was pending and the son was screaming and excited when the officers first encountered him. The problem with the state’s argument is that here there was no ongoing emergency, as in Davis, where the victim was speaking to a 911 operator while she was being attacked. In this case the son did not seek the assistance of the police, but rather the police approached him, and the incident had occurred twenty minutes earlier. In addition, the state contends that the son’s statement was admissible as an excited utterance; however, in Lopez, the Florida Supreme Court recognized that the admissibility of an excited utterance will still ultimately be governed by Crawford.

We conclude that, because there was no ongoing emergency, because the event described by the son had occurred twenty minutes earlier, and because the officers approached the son rather than the other way around, the son’s statement incriminating his father was testimonial and not admissible under Crawford. We accordingly reverse for a new trial.

HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Lawrence C. PERMENTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2373.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

The state charged Permenter with a single count of second-degree murder. Per-menter’s sole defense was that he acted in self-defense. In instructing the jury on self-defense, the trial court read, without objection, the following instruction:

The person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent or great bodily harm to himself or the imminent commission of aggravated assault [sic] against himself.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
Lawrence C. Permenter ... was attempting to commit, committing, or escaping after the commission of aggravated assault....

The jury found Permenter guilty of manslaughter.

We previously granted Permenter’s petition alleging ineffective assistance of appellate counsel. See Permenter v. State, 953 So.2d 647, 648 (Fla. 4th DCA 2007). Permenter now seeks a new trial, claiming fundamental error in the jury instruction. We affirm.

We recognize that the instruction was erroneous because Permenter was charged with a single offense. The relevant jury instruction was recently amended to state that it should be given “only if the defendant is charged with more than one forcible felony.” Fla. Std. Jury Instr. (Crim.) 3.6(f). We conclude, however, that, here, the erroneous instruction did not amount to fundamental error.

The supreme court recently decided Martinez v. State, 33 Fla. L. Weekly S125, — So.2d-, 2008 WL 450327 (Fla. Feb. 21, 2008), which addressed the fundamental error analysis in reviewing erroneous jury instruction. Martinez was charged with attempted first-degree murder, and the trial court gave the forcible felony instruction on self-defense. The supreme court held that “the erroneous forcible-felony instruction did not deprive Martinez of a fair trial and, therefore, fundamental error did not occur.” Id. at *6, at-.

Outlining the correct test, the Martinez court explained that “[w]here the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Id. at *5, at - (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)).

Subsequently, this court, in Farmer v. State, 975 So.2d 1275, 1276 (Fla. 4th DCA 2008), declined to find fundamental error where “[njeither the state nor the defense referred to the erroneous instruction in closing argument.” In Farmer, “[t]he defense attorney referred to another portion of the instruction, involving a defendant who ‘initially provoked the force,’ ” and the prosecutor argued that deadly force was not justified because danger did not appear real. This court failed to find fundamental error, reasoning that the confusing language of the instruction leads “juries [to] use their common experience and apply a street version of self defense.” Id. at 1277 (“With this difficult jury instruction and the failure of either lawyer to mention the erroneous portion of it, we do not find that the instruction deprived Farmer of his defense.”).

Here, similar to the state’s closing in Farmer, the state did not specifically refer to the erroneous portion of the forcible felony exception to self-defense instruction.

Further, here, the state argued that “it wasn’t [the victim] that was otherwise committing an aggravated assault against Lawrence Permenter. It was Lawrence Permenter who committed the act of violence ultimately and deliberately,” and “he deliberately shot and killed [victim] in anger, not a planned murder, but one done in anger and fury and resentment.” In response, the defense attorney focused on Permenter’s inability to retreat, not the erroneous portion of the jury instruction.

Prior to Martinez, we would be obliged to reverse on the authority of this court’s opinions in Fair v. Crosby, 858 So.2d 1103 (Fla. 4th DCA 2003), and Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002). However, following the reasoning in Farmer and Martinez, the prosecutor in this case “did not exploit the erroneous instruction in closing argument,” and a review of the record fails to show that the erroneous instruction deprived the defendant of a fair trial. Farmer, 975 So.2d at 1277.

Therefore, the judgment and sentence are affirmed.

WARNER and GROSS, JJ., concur.

      . Martinez declined to address whether an erroneous forcible felony instruction could ever constitute fundamental error. Id. at *6 n. 5, at-n. 5.


text:
    Jennifer MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1344.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Alvin E. Entin of Entin & Della Fera, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We dismiss Marshall’s appeal, as her sole claim of error is the denial of a downward departure sentence by the trial court. As we noted in Jorquera v. State, 868 So.2d 1250, 1253 (Fla. 4th DCA 2004), “The current statutory scheme does not give this court the power to review a trial court’s discretionary decision to deny a downward departure.” See § 924.06(1), Fla. Stat. (2008).

Dismissed.

STONE, WARNER and FARMER, JJ., concur.


author: POLEN, J.

text:
    Sherla PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4484.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Sherla Pierre appeals a final order of judgment and sentence for two counts of attempted robbery with a firearm, two counts of aggravated assault with a deadly weapon and one count of aggravated battery with a deadly weapon. Pierre argues the trial court erred in denying her motion for judgment of acquittal as to the aggravated battery charge and in denying her 3.800(b) motion to correct the sentencing order to correctly reflect her convictions. We are unpersuaded by Pierre’s argument regarding the trial court’s denial of her motion for judgment of acquittal but agree the trial court erred in denying her 3.800(b) motion to correct an error on the judgment sheet and remand for entry of a corrected judgment sheet.

Pierre was convicted of two counts of attempted robbery with a firearm, a second degree felony. However, the sentencing order indicated she was convicted of two counts of robbery with a firearm, a first degree felony. In this case, the trial court denied the motion because the convictions were correctly listed on the court disposition form. The convictions are also listed correctly on the criminal scoresheet. However, the judgment sheet incorrectly indicates Pierre was convicted of a first degree felony, robbery with a firearm, rather than attempted robbery with a firearm, a second degree felony. As the judgment sheet is incorrect, the trial court erred in denying Pierre’s 3.800(b) motion. We remand the case to the trial court to correct the scrivener’s error on the judgment sheet. See Tedesco v. State, 893 So.2d 660 (Fla. 4th DCA 2005). Appellant need not be present for entry of the corrected judgment.

SHAHOOD, C.J., and MAY, J., concur.


text:
    James E. YATES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1924.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Yates appeals his prison release reoffen-der (PRR) sentence after the jury found him guilty of robbery by sudden snatching. On authority of State v. Hearns, 961 So.2d 211, 212 (Fla.2007), we reverse, concluding that a conviction for robbery by sudden snatching cannot subject Yates to a PRR sentence. See id. (holding that “in determining whether a crime constitutes a forcible felony [and thus subjects a defendant to a PRR sentence], courts must consider only the statutory elements of the offense”).

We remand for re-sentencing.

STONE, WARNER and FARMER, JJ., concur.


text:
    Antonio PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1145.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Antonio Palmer was charged with attempted murder in the first degree and found guilty of the lesser included offense of attempted murder in the second degree arising ft-om a shooting involving Palmer and a co-defendant, Gerald Muir.

Palmer argues that the trial court erred in refusing to allow defense counsel to put before the jury the reputation of the victim, Mr. Ward, for truth and veracity in the community. We agree.

Chris Jones was called to testify as a defense witness. Defense counsel conducted a voir dire examination of Jones outside the presence of the jury. The following exchange occurred:

DEFENSE COUNSEL: Do you know what Mr. Ward’s reputation is in your neighborhood for truth or dishonesty or honesty?
JONES: It’s pretty bad.

This was sufficient to allow the jury to consider the victim’s reputation for truth and veracity in the community. Though other questions were raised by the State following this exchange, attempting to undermine the predicate for Mr. Jones’s opinion, those questions went to the weight of the testimony and would have been properly raised on cross-examination by the State.

As the victim’s testimony was the only evidence linking Palmer to the shooting, his credibility was the heart of the defense, and it was error to leave out his reputation for truth and veracity. We cannot find this error harmless because other witnesses specifically denied seeing Palmer at the scene of the shooting. The whole defense was based on the victim s credibility or lack thereof. We, therefore, reverse on this issue, and remand for a new trial.

Additionally, Palmer argues that his sentence should be reversed because although he was convicted of the lesser included offense of attempted murder in the second degree, he was still sentenced to the same sentence were he to have been found guilty as charged. But Palmer’s argument has already been addressed and rejected by the Florida Supreme Court. See Sanders v. State, 944 So.2d 203 (Fla.2006). Thus, we affirm on this issue should Palmer be convicted of the same offense on retrial.

Affirmed in part, reversed in part and remanded.

GROSS and MAY, JJ., concur.


text:
    Jussi K. KIVISTO, Petitioner, v. GMAC LLC f/k/a General Motors Acceptance Corporation, Respondent.
    No. 4D08-882.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Jussi K. Kivisto of Kivisto Law Firm, Lake Worth, pro se.
    Mark J. Bernet of Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A., Tampa, for respondent.
   PER CURIAM.

The issue raised by this petition for certiorari is when, in a replevin action in which the defendant has prevailed, the court must award defendant damages. In a non-final order the trial court ordered plaintiff to return the vehicle to defendant, but postponed a determination of damages for a later hearing to be scheduled.

In McMurrain v. Fason, 584 So.2d 1027 (Fla. 1st DCA 1991), the first district granted a petition for certiorari under similar circumstances, holding that damages were due immediately upon the dissolving of the writ. Prior to McMurrain, this court had construed section 78.20, Florida Statutes (2007), upon which this issue turns, in a manner contrary to McMur-rain. Gimbel v. Int'l Mailing and Printing Co., 506 So.2d 1081 (Fla. 4th DCA 1987). After McMurrain was decided the fifth district, in Trans Atlantic Distributors, L.P. v. Whiland Co., S.A., 671 So.2d 883 (Fla. 5th DCA 1996) adopted our holding in Gimbel and disagreed with McMur-rain.

We agree that this order is reviewable by certiorari, based on McMurrain, but we disagree with the holding on the merits on McMurrain and agree with Trans Atlantic. We certify direct conflict with McMurrain v. Fason, 584 So.2d 1027 (Fla. 1st DCA 1991).

Petition denied.

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


text:
    Teddrick MORRISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4936.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Teddrick Morrison, Trenton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. We reverse.

The defendant alleged that he was illegally sentenced to six years in prison in connection with three 2004 cases after violating community control. He argues that, pursuant to sections 958.04(2)(b) and 958.045(5)(c), Florida Statutes (2004), the court was limited to sentencing him to no more than 364 days because he had successfully completed boot camp. He cited a number of cases, including Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002), in which the court held that if a youthful offender successfully completes boot camp and then violates probation, the trial court may impose a term of incarceration that does not exceed 364 days. See §§ 958.04(2)(b), 958.045(5)(c), Fla. Stat. (2004).

The trial court summarily denied the motion without explanation. The defendant appealed.

The State argues that the trial court correctly applied an amendment to section 958.045, which became effective on July 1, 2006. That section now provides that a youthful offender, who violates probation following successful completion of the boot camp program, may be sentenced to any sentence that could have been imposed originally. See Ch. 2006-270, § 1, at 2841-42, Laws of Fla.

The offenses for which the defendant was sentenced were committed prior to the effective date of the amendment. To apply the 2006 amendment to those offenses would violate the constitutional prohibition against ex post facto laws. Art. I, § 10, Fla. Const. (“No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”). “The Ex Post Facto Clause is triggered when a law ‘increases punishment beyond what was prescribed when the crime was consummated.’ Meola v. Dep’t of Corr., 732 So.2d 1029, 1032 (Fla.1998) (quoting Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997)) (italicized emphasis added in Meóla).

When the defendant’s offenses were committed, a violation of probation could result in a sentence no longer than 364 days. Compare Windom v. State, 835 So.2d 1174 (Fla. 5th DCA 2002). Accordingly, we reverse and remand for further proceedings.

Reversed and Remanded.

STEVENSON, TAYLOR and MAY, JJ., concur.


text:
    In re Margrett FORD.
    No. 2008-B-0274.
    Supreme Court of Louisiana.
    April 4, 2008.
   I,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

In 2005, the Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent, Margrett Ford, alleging that she neglected a legal matter, failed to communicate with a client, and failed to promptly refund an unearned fee. Prior to a hearing in the matter, respondent and the ODC filed a joint petition for consent discipline in this court, proposing that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to her successful completion of a two-year period of supervised probation with conditions. This court accepted the petition for consent discipline on June 24, 2005. In re: Ford, 05-1328 (La.6/24/05), 905 So.2d 287 (“Ford /”). Following the appointment of a probation monitor and the filing of a probation plan approved by the disciplinary board, respondent’s probation commenced on February 20, 2006.

In January 2008, the ODC filed a motion to revoke respondent’s probation. The ODC premised its motion on respondent’s failure to comply with the terms of her probation, as well as her asserted failure to cooperate in the investigation of a new complaint filed against her. Specifically, at the time the ODC filed its motion to revoke probation, respondent had not yet participated in Ethics School and had not yet paid in full the costs of the disciplinary proceeding in Ford I. The ODC also 1 Sasserted that respondent had failed to communicate with her probation monitor for a period of approximately six months.

The disciplinary board conducted a probation revocation hearing and thereafter filed its report with this court, recommending that respondent’s probation be revoked and that the previously deferred one year and one day suspension be made executo-ry. In its recommendation, the board rejected all of the grounds for revocation asserted by the ODC except respondent’s failure to pay the costs of Ford I. The board also noted that respondent had not contacted the Louisiana State Bar Association’s Practice Assistance Counsel to assist her in creating a law office management program.

On February 14, 2008, prior to any action by the court on the disciplinary board’s recommendation, respondent and the ODC filed a “Joint Motion to Extend Probation.” In -the joint motion, the parties represent that respondent has paid the Ford I costs in full as of February 1, 2008. Accordingly, rather than revoke probation, as has been recommended by the disciplinary board, the parties urge the court to extend respondent’s probation for one year, or through February 19, 2009. Respondent and the ODC suggest that an extension of probation “represents a more equitable remedy for Respondent’s failure to contact the Practice Assistance Counsel and. will afford Respondent an opportunity to attend the mandated session of the LSBA’s Ethics School.”

We agree that a one-year extension of the period of probation imposed in respondent’s previous disciplinary proceeding is appropriate under the circumstances. During the extended period, respondent shall:

1. Establish and maintain an effective calendaring system and method to communicate with clients and obtain the assistance of the Louisiana State Bar Association’s Practice Assistance Counsel in the ^creation of a proper law office management program;
2. Enroll in and attend one full day of Ethics School administered by the LSBA’s Practice Assistance and Improvement Committee; and
3. Respond to all reasonable requests of her probation monitor, including maintaining monthly contact with her probation monitor.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the Joint Motion to Extend Probation filed by respondent and the ODC, it is ordered that the two-year period of probation imposed against respondent in In re: Ford, 05-1328 (La.6/24/05), 905 So.2d 287, be extended for one year, subject to the conditions set forth herein.

      . The conditions were specified in the joint petition for consent discipline and included the requirement that respondent attend Ethics School and work with the Louisiana State Bar Association's Practice Assistance Counsel "in the creation of a proper law office management program.”


text:
    Shawn MADISON v. DEPARTMENT OF POLICE.
    No. 2007-C-2405.
    Supreme Court of Louisiana.
    April 4, 2008.
   PER CURIAM.

11 Plaintiff, Shawn Madison, is one of several employees of the New Orleans Police Department (“NOPD”) who did not report for duty as scheduled following Hurricane Katrina and who were subsequently terminated by the NOPD for abandonment of duty without being provided notice and a pre-termination hearing. The individual officers appealed to the Civil Service Commission for the City of New Orleans (“CSC”), which held that the NOPD erred as a matter of law when it terminated the officers without holding pre-termination hearings and ordered that the officers be reinstated. NOPD appealed those decisions to the Louisiana Court of Appeal, Fourth Circuit. The court of appeal, sitting en banc, consolidated the individual cases and held that, under the circumstances presented by Hurricane Katrina and its aftermath, affording the officers a post-termination hearing was sufficient to satisfy the due process requirements of both the United States and Louisiána constitutions. Reed v. Department of Police, 06-1498 (La.App. 4 Cir. 10/10/07), 967 So.2d 606. The court of appeal vacated the decision of the CSC in each of the consolidated cases, remanded the cases to the CSC, and ordered the CSC “to receive from the parties such additional evidence as necessary to appropriately resolve each of the cases and to render a judgment on the merits of each case.” Id. at 6, 967 So.2d at 606.

| aSome of the individual police officers filed writs challenging the decision of the court of appeal in this court. Most of those writ applications were denied. See Allen v. Department of Police, 07-2439 (La.2/15/08), 976 So.2d 182; Lee v. Department of Police, 07-2440 (La.2/15/08), 976 So.2d 182; Winford v. Department of Police, 07-2181 (La.1/11/08), 972 So.2d 1165; Washington v. Department of Police, 07-2103 (La.1/11/08), 972 So.2d 1164; Bradley v. Department of Police, 07-2075 (La.1/11/08), 972 So.2d 1164. However, for the reasons that follow, we grant the writ application filed by applicant herein, Shawn Madison, and vacate the decision of the court of appeal. We find that the CSC correctly found that Officer Madison is entitled to reinstatement of his employment because he “provided evidence that he should have been placed on a medical leave status rather than terminated.”

Like the other police officers whose writs were denied by this court, Officer Madison did challenge the court of appeal’s finding that a post-termination hearing was sufficient to protect his due process rights under the facts of this case. As we did when we denied the writ applications filed by the other officers, we reject that argument. However, unlike the other officers, Officer Madison’s writ application was not based solely on his argument that the NOPD violated his due process rights when ⅛ terminated his employment without affording him notice and a pre-termi-nation hearing. In addition to that argument, Officer Madison asserted that the court of appeal erred when it consolidated his case with that of the other officers because he had already been afforded a complete post-termination hearing and because the CSC found that, following that hearing, he was entitled to reinstatement. Thus, Officer Madison claims, the court of appeal should have affirmed the CSC’s decision reinstating his employment. Although the Department of Police asserted in its opposition to Officer Madison’s writ application in this court that the hearing Officer hMadison had received was not “complete,” it specifically stated in its brief to the court of appeal that the CSC “conducted a full hearing to gather evidence on the merits of Madison’s case” and that the CSC’s decision to order Officer’s Madison’s reinstatement because he had not been afforded notice and a pre-termination hearing “belies common sense where all the evidence needed to make a decision on the merits is available.”

In its reasons for ordering Officer Madison’s reinstatement to his police duties, the CSC found specifically that Officer Madison “provided evidence that he should have been placed on a medical leave status rather than terminated.” The standard of appellate review of the CSC’s decision is set out in Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647. First, the Commission’s factual determinations are reviewed under the clearly erroneous/manifest error standard of review. Id. Thus-, regardless of our own view of the evidence, we may not disturb the Commission’s findings of fact so long as they are reasonable. Stobart v. DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

We have reviewed the evidence presented at Officer Madison’s post-termination hearing and find no manifest error in the CSC’s finding that Officer Madison should have been placed on medical leave status rather than being terminated. At the hearing, NOPD Sergeant Walter Zschied-rich testified on behalf of the Department of Police that he investigated Officer Madison’s failure to report to work following Hurricane Katrina. According to Sergeant Zschiedrich, he talked with Captain Bryson, Sergeant Andre Carter, and Sergeant Arland Barnes, NOPD employees who all stated their belief that Officer Madison may have been in the hospital in Louisiana or in M.D. Anderson in Houston. Sergeant Zschiedrich then went. out to speak with Officer Madison’s mother, Lois Madison, on October 18, and provided a phone number for Officer Madison to contact them, and that he also | contacted M.D. Anderson and the hospital in Monroe, Louisiana, and learned that Officer Madison was not registered at either hospital. When Officer Madison did not “report in,” Sergeant Zschiedrich said he “wrote it up as an abandonment” and turned in his report. When asked if Officer Madison had made any contact with “rank” or himself, Sergeant Zschiedrich responded “no,” according to the information he received in his interviews.

Officer Madison testified that the last date he worked before Hurricane Katrina was the Thursday before the storm on Monday, and that he had been scheduled to report for duty on Tuesday morning. On that Saturday morning at about 8:30 a.m., Officer Madison said, he contacted Desk Officer Sharon Williams, who told him there was no definite plan concerning when officers were to report to duty. Thus, he told Officer Williams that he was going to take his family to Monroe, but he would be coming back. He left New Orleans with his family about 11:30 a.m. on Sunday for a trip to Monroe that took 13 hours, he said, meaning that he got to Monroe at approximately 1 a.m. on Monday. While en route to Monroe, at about 4:30 or 5 p.m. on Sunday, Officer Madison said that he received a voice mail from Latrese Selders telling him to come to work at 4 p.m. on Monday. Once he received the voice mail message, there was no telephone communication and he was unable to get in contact with NOPD.

After he got his family settled in Monroe, Officer Madison testified, he was admitted to St. Francis Hospital with a bleeding ulcer, a pre-existing condition that he had been treated for at Tulane Hospital in August and May of that year. He was hospitalized from September 5 to September 11, 2005, after which it was discovered that he had a tumor in his stomach, actually inside the ulcer. On October 10, he went to M.D. Anderson in Houston, seeking cancer treatment. Thereafter, he came to New Orleans and talked to Lieutenant Ceravolo and other supervisors at the police station |Kin the French Quarter. He also provided a discharge document from St. Francis Hospital to Sergeant Barnes and told him what he was doing. Officer Madison stated that he was admitted to M.D. Anderson for surgery to have the tumor removed on November 11, and that he was hospitalized for seven days. In the interim, he had hospital appointments three or four times a week. He provided a discharge from M.D. Anderson to Officer Williams once he could get up and was able to come back to New Orleans, sometime in early December or so.

Officer Madison testified that Lieutenant Cervolo asked him why he was bringing in his discharge papers, and that Lieutenant Cervolo advised him that he had been terminated on October 17. He never received any notice of his termination prior to his visit to New Orleans in December, he said. The discharge papers from St. Francis and M.D. Anderson were admitted into evidence at the hearing.

The record in this case provides a reasonable factual basis for the CSC’s finding that Officer Madison should have been placed on medical leave status rather than being terminated. Although Sergeant Zschiedrich testified that his investigation indicated that Officer Madison had not contacted any of his “rank” prior to his termination, he also admitted that he was told by Captain Bryson, Sergeant Carter, and Sergeant Barnes that they believed Officer Madison was hospitalized either in Monroe or at M.D. Anderson. Further, Officer Madison testified specifically that he informed NOPD supervisors that he was undergoing surgery and treatment for stomach cancer. Thus, we find no manifest error in the CSC’s decision ordering the reinstatement of Officer Madison’s employment with NOPD.

Accordingly, the judgment of the court of appeal remanding this case to the CSC for a full hearing is reversed, and the decision of the CSC ordering that Officer Madison be reinstated to his job at NOPD reinstated.

| fiCOURT OF APPEAL JUDGMENT REVERSED;

CIVIL SERVICE COMMISSION DECISION REINSTATED.


text:
    Richard C. BENTLEY v. Bobby FANGUY.
    No. 2008-CC-0009.
    Supreme Court of Louisiana.
    April 4, 2008.
   PER CURIAM.

The plaintiff in this matter filed an application for supervisory writs on January 2, 2008. This Court found that his application contained language which was discourteous and insulting and violated Supreme Court Rule VII, § 7, and returned the application to plaintiff, allowing him fifteen days to file a supplemental writ application conforming with all Supreme Court rules and applicable laws. Although plaintiff submitted a supplemental application, that application is virtually identical to the original application and therefore is not in compliance with our order.

Since there has been no writ application filed in conformity with Supreme Court Rules and applicable laws, there is no writ application for this court to consider. Further, because the time limits for filing a proper writ application have passed, this court will not consider any future application on issues related to this writ application.


text:
    STATE of Louisiana v. David BONDS.
    No. 2008-KK-0732.
    Supreme Court of Louisiana.
    April 4, 2005.
   In re Bonds, David; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 472-216; to the Court of Appeal, Fourth Circuit, No. 2008-K-0352.

Stay Denied; Writ Denied.


text:
    In re Judge Allen A. KRAKE.
    No. 2006-O-1658.
    Supreme Court of Louisiana.
    March 11, 2008.
   In re Judge Allen A. Krake, applying for Rehearing of this Court’s Order dated February 26, 2008; Judiciary Commission of Louisiana.

Denied.

WEIMER, J., would grant.


text:
    Lawrence RITTER, et al. v. EXXON MOBIL CORPORATION, et al.
    No. 2008-CC-0609.
    Supreme Court of Louisiana.
    March 26, 2008.
   In re Exxon Mobil Corporation et al.; Chalmette Refining LLC; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 103-411; to the Court of Appeal, Fourth Circuit, No. 2008-C-0219.

Denied.


author: VICTORY, J.,

text:
    Lawrence RITTER, et al. v. EXXON MOBIL CORPORATION, et al.
    No. 2008-CC-0610.
    Supreme Court of Louisiana.
    March 26, 2008.
   In re Exxon Mobil Corporation et al.; Chalmette Refining LLC; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 103-411; to the Court of Appeal, Fourth Circuit, No. 2008-C-220.

Denied.

VICTORY, J.,

concurs and assigns reasons. I concur in the denial of this writ because the trial court has indicated it will rule on prospective jurors challenged for cause on a case-by-case basis. Defendants may seek relief for any ruling by the trial court that they may deem erroneous.


text:
    Antoine P. TURNER v. Antoinette Anderson TURNER.
    No. 2008-CC-0642.
    Supreme Court of Louisiana.
    March 26, 2008.
   In re Turner, Antoinette Anderson;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2006-10919; to the Court of Appeal, Fourth Circuit, No. 2008-C-0246.

Denied.


text:
    STATE of Louisiana v. Lionel ROMAR.
    No. 2007-K-2140.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 279801; to the Court of Appeal, First Circuit, No. 2007 KA 0789.

Granted.


text:
    Byron BRYANT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, American Home Assurance Company and Don Johnson.
    No. 2008-CC-0206.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re American Home Assurance Co.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 580,187; to the Court of Appeal, First Circuit, No. 2007 CW 1900.

Granted. Nothing in this Court’s judgment in Bryant v. State Farm Mutual Automobile Ins. Co., 06-1692 (La.3/16/07), 952 So.2d 688, precludes relator from asserting a new ground for summary judgment. Accordingly, the matter is remanded to the trial court for consideration of relator’s motion for summary judgment on the merits.


text:
    Cynthia BROOKS, et al. v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, et al.
    No. 2008-CC-0256.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Regional Transit Authority; Transit Management of Southeast Louisiana et al.; Dennis, Zaehery; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 00-10275; to the Court of Appeal, Fourth Circuit, No. 2007-C-1367.

Granted and remanded to the court of appeal for briefing, argument and full opinion.


text:
    STATE ex rel. Cedric ROBINSON v. STATE of Louisiana.
    No. 2008-KH-0618.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Robinson, Cedric; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 277-467.

Relator represents that the district court has failed to act timely on a motion to correct an illegal sentence filed on or about January 4, 2007. If relator’s representation is correct, the district court is ordered to consider and act on the motion. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 07-PDB-048.
    No. 2007-OB-2089.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Chapman, Ronald L. Sr.; — Plaintiff; Applying for Appeal of Decision of the Disciplinary Board.

Leave to appeal dismissal of complaint denied.


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 07-PDB-031.
    No. 2007-OB-2142.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Trimble, David Richard; — Plaintiff; Applying for Appeal of Decision of the Disciplinary Board Office of the Disciplinary Board, No. 07-PDB-031.

Leave to appeal denied.


text:
    In re Jason B. ROUCHON.
    No. 2008-OB-0205.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Disciplinary Board; — Other; Applying for Findings and Recommendations (Readmission) Office of the Disciplinary Board, No. 06-DB-040.

Readmission denied. Petitioner may not apply for readmission until at least two years have elapsed from the date of this judgment.


text:
    In re Derek John HONORE.
    No. 2003-OB-980.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Derek John Honoré, applying for Rehearing to this court action dated February 13, 2008. Office of Disciplinary Bd. No. 01-DB-067.

Rehearing denied.

JOHNSON, J., would grant rehearing.

WEIMER, J., would grant rehearing.


text:
    STATE ex rel. Ronald E. COLEMAN v. STATE of Louisiana.
    No. 2007-KH-0979.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Coleman, Ronald E.; — Defendants); Applying for Reconsideration of this Court’s order dated February 1,2008 Parish of Orleans, Criminal District Court Div. G, No. 310-797; to the Court of Appeal, Fourth Circuit, No. 2007-K-0282.

Denied.


text:
    STATE of Louisiana v. Chris Lane BOWMAN.
    No. 2008-KK-0213.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Bowman, Chris Lane; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 51,865; to the Court of Appeal, Second Circuit, No. 43223-KW.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Paul G. LATHAN, Jr.
    No. 2007-KO-0805.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Lathan, Paul G. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 50438; to the Court of Appeal, Second Circuit, No. 41,855-KA.

Denied.


text:
    STATE of Louisiana v. Justin HUCKABAY.
    No. 2007-KP-0859.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Huckabay, Justin; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 399-936; to the Court of Appeal, Fourth Circuit, No. 2006-K-1035.

Denied.


text:
    STATE of Louisiana v. Ishmel ENNIS.
    No. 2007-KP-0951.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Ennis, Ishmel; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. CR4580-00-01; to the Court of Appeal, Third Circuit, No. KW 06-01578.

Denied.


text:
    STATE ex rel. Elvis L. WASHINGTON v. STATE of Louisiana.
    No. 2007-KH-1102.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Washington, Elvis L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. C, No. 61,345; to the Court of Appeal, Second Circuit, No. 42242-KH.

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


text:
    STATE ex rel. Al T. SAMSON v. STATE of Louisiana.
    No. 2007-KH-1167.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Samson, A1 Tyron; Samson, Al T. a/k/a Samson, A1 Tyron; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 419-756; to the Court of Appeal, Fourth Circuit, No. 2006-K-1236.

Denied. Moot.


text:
    STATE ex rel. Jeffrey WESLEY v. STATE of Louisiana.
    No. 2007-KH-1234.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Wesley, Jeffrey; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 311-342; to the Court of Appeal, Fourth Circuit, No. 2007-K-0177.

Denied.


text:
    STATE ex rel. Thomas Louis PHILLIPS v. STATE of Louisiana.
    No. 2007-KH-1282.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Phillips, Thomas Louis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 245,434.

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


text:
    STATE ex rel. Leprease MONTANA v. STATE of Louisiana.
    No. 2007-KH-1343.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Montana, Leprease; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 295736; to the Court of Appeal, First Circuit, No. 2006 KA 1905.

Denied.


text:
    STATE ex rel. Lamont D. ALSTON v. STATE of Louisiana.
    No. 2007-KH-1344.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Alston, Lamont D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish, of Jefferson, 24th Judicial District Court Div. N, No. 03-286; to the Court of Appeal, Fifth Circuit, No. 07-KH-330.

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


text:
    STATE ex rel. Rannel M. BROWN v. STATE of Louisiana.
    No. 2007-KH-1355.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Brown, Rannel M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 06-05-0833; to the Court of Appeal, First Circuit, No. 2006 KA 2330.

Denied.


text:
    STATE ex rel. Michael NICK v. STATE of Louisiana.
    No. 2007-KH-1356.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Nick, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 08-05-0057; to the Court of Appeal, First Circuit, No. 2006 KA 2419.

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


text:
    STATE ex rel. Elrick Paul FORET, Sr. v. STATE of Louisiana.
    No. 2007-KH-1359.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Foret, Elrick Paul Sr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 459,223; to the Court of Appeal, First Circuit, No. 2007 KA 0001.

Denied.


text:
    STATE ex rel. Devin HILLIARD v. STATE of Louisiana.
    No. 2007-KH-1360.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Hilliard, Devin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 415-293; to the Court of Appeal, Fourth Circuit, No. 2007-K-0441.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex. rel. John EDWARDS v. STATE of Louisiana.
    No. 2007-KH-1362.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Edwards, John; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 01-00-0623; to the Court of Appeal, First Circuit, No. 2007 KW 0751.

Denied.


text:
    Charles CARTER v. Burl CAIN, Warden, Louisiana State Penitentiary and Supervisor, Mailroom.
    No. 2007-CI-1364.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Carter, Charles; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 537,260; to the Court of Appeal, First Circuit, No. 2006 CA 1407.

Denied.


text:
    STATE ex rel. Michael GEORGE v. STATE of Louisiana.
    No. 2007-KH-1366.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re George, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 395-266; to the Court of Appeal, Fourth Circuit, No. 2007 K 0191.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    Charles CARTER v. Burl CAIN, et al.
    No. 2007-CI-1367.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Carter, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. 19385; to the Court of Appeal, First Circuit, No. 2006 CW 2359.

Denied.


text:
    STATE ex rel. Elrick J. GALLOW v. STATE of Louisiana.
    No. 2007-KH-1368.
    Supreme Court of Louisiana.
    March 28, 2008.
   In re Gallow, Elrick J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, No. 58,285-FA; to the Court of Appeal, Third Circuit, No. KH 07-00197.

Denied.