author: TAYLOR, J.

text:
    A.A.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-515.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

A.A.R. appeals his delinquency adjudication, which was based, in part, on his giving a false name to a police officer. We reverse, because the child recanted and provided his true name to the officers before he was arrested, transported, or booked, and before any serious harm was done. In reversing, we conclude that the common law recantation defense applies to violations of the new “false name” statute, section 901.36(1), Florida Statutes (2004).

On September 29, 2004, Sergeant Sean Murray observed A.A.R., who was fourteen years old, standing in the breezeway of an apartment complex smoking a cigar. The officer confronted the child and another boy and asked them to sit on the curb. The officer asked the child his name, address, and date of birth. A.A.R. gave the officer a false name (James Robinson) and a false date of birth. The officer thought that the child was lying, because he did not reflexively respond to the name “James.” To confirm his suspicion, the officer ran the false name through the computer system.

Officer Murray testified that he repeatedly warned the child and told him that if he would just give his real name he would be released if there were no warrants for his arrest. The child persisted in claiming that he was “James.”

When Officer Murray’s supervisor, Corporal Clinton Cohen, arrived on the scene, the two officers separated the boys. Although the timing sequence is not clear, the other boy told Officer Murray A.A.R.’s true name. A.A.R. also told Corporal Cohen his correct name and date of birth the first time he was asked. Officer Murray testified that it took him ten to fifteen minutes to obtain the defendant’s true name. The officers did not use the false name in writing any report or citation. When they charged A.A.R. with giving a false name, they booked him under his correct name.

The trial court denied the child’s motion for judgment of dismissal and adjudicated him delinquent. As the result of this charge and a separate incident, the defendant was committed to a level eight residential program.

The standard of review applicable to a motion for judgment of dismissal in a juvenile case is the same as the standard for a motion for judgment of acquittal in a criminal ease, de novo review. See G.G. v. State, 903 So.2d 1031, 1032-33 (Fla. 4th DCA 2005).

As the fifth district explained:

In moving for a judgment of dismissal, the movant “ 'admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). “[A]ll reasonable inferences that may be drawn from such evidence must be viewed in a light most favorable to the state.” Espiet [v. State], 797 So.2d [598] at 601 [(Fla. 5th DCA 2001)] (citing Beasley; Hoffman v. State, 708 So.2d 962 (Fla. 5th DCA 1998)).

A.P.R v. State, 894 So.2d 282, 285 (Fla. 5th DCA 2005).

The child Was convicted of giving a false name to a police officer, a misdemeanor offense, under section 901.36(1), Florida Statutes. This section states, in pertinent part:

It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer....

Before the 1999 adoption of the “false name” statute, giving a false name to a police officer was prosecuted as an obstruction of justice, or resisting an officer without violence, under section 843.02, Florida Statutes. Many cases interpreting the obstruction statute recognized a recantation defense where the defendant acted with sufficient promptness in correcting the false name. The issue we must decide in this case is whether recantation is a defense under the new “false name” statute and, if so, whether the facts in this case would support such a defense.

The new “false name” statute contains no express recantation defense. However, the recantation defense is based on common law public policy. As explained above, it has been applied to the obstruction statute, and previously, to the perjury statute. We believe that the public policy underlying the recantation defense for obstruction and perjury charges applies equally to the current “false name” statute. As explained in P.P. v. State, 466 So.2d 1140, 1141 (Fla. 3d DCA 1985):

Just as in perjury prosecutions where a defendant may recant his intentionally false testimony prior to the final submission of the case, Jones v. State, 400 So.2d 12 (Fla.1981); Carter v. State, 384 So.2d 1255 (Fla.1980); Brannen v. State, 94 Fla. 656, 114 So. 429 (1927); State v. Snipes, 433 So.2d 653 (Fla. 1st DCA 1983), so, too, one accused of obstructing justice, as here, should be able to retract any “false information” before it is officially recorded or does any harm. The underlying policy in both such cases is first, to encourage witnesses to tell the truth to the authorities and, second, the correlative need to induce such witnesses to correct, without fear of prosecution, their prior falsehoods before they have done any harm.

Absent some clear legislative expression that it did not intend the recantation defense to apply to the new statute, the defense should be available upon the same reasoning followed in obstruction cases.

In obstruction cases, the primary issue in deciding whether to permit recantation of a false name as a defense has been the extent of the delay in retracting and correcting the false information. The extent of the delay correlates to the amount of harm done, if any. In Burdess v. State, 724 So.2d 604 (Fla. 5th DCA 1998), no more than three minutes elapsed between the time the defendant gave the arresting officer a false name and the time she furnished her correct name. The fifth district reversed her conviction, stating:

There was no testimony that the officer was impeded in any way by the giving of the original false information. No reports were prepared based on it, nor was any action taken in reliance on it. The information was corrected before it did any harm, and appellant was not being legally detained.

Id. at 604. Although A.A.R. was being legally detained for suspected underage smoking, the officers did not prepare any reports based on the false name or take any action in reliance on it.

In Steele v. State, 537 So.2d 711, 712 (Fla. 5th DCA 1989), the fifth district reversed an obstruction conviction for lack of harm, where the defendant had recanted at the police station after being confronted with his true name. The court stated:

No evidence was adduced by the state as to the method by which the police learned Steele’s name or the effort or time expended in obtaining that information. In this case, as in P.P. v. State, 466 So.2d 1140 (Fla. 3d DCA 1985), the false information was corrected by the defendant, albeit with prompting, before it was officially recorded or did any harm.

In C.T. v. State, 481 So.2d 9 (Fla. 1st DCA 1985), the first district reversed an obstruction conviction. There, the officer had recorded the false name in partially filling out a citation he intended to issue to the defendant. He then ran the false name through the police computer to check for outstanding warrants. At that point, the defendant confessed his true name. The first district stated:

Here, as in P.P. v. State, 466 So.2d 1140 (Fla. 3d DCA 1985), the juvenile voluntarily corrected the false information he gave the officer before any real harm was done. Although the false information given by the juvenile defendant in this case was “officially recorded” in the sense that it was written on the traffic citation the officer was preparing to issue and was run through the police computer, it was undisputed that the juvenile promptly and voluntarily recanted the false information and thus did not interfere with the officer’s performance of his duties other than by causing a relatively insignificant loss of time.

By contrast, in State v. Townsend, 585 So.2d 495 (Fla. 5th DCA 1991), the fifth district upheld a conviction where the defendant did not recant until after his arrest. The court’s reasoning also focused on the harm element, this time adversely:

Townsend, by his constant lying, made the investigation of a simple misdemean- or driving without a license charge far more time consuming than it normally would be.

A circumstance often held to be a distinguishing factor in these obstruction cases is the timing of the arrest, i.e., whether the recantation occurred before or after arrest. See Fripp v. State, 766 So.2d 252, 254 (Fla. 4th DCA 2000) (distinguishing Burdess and C.T. because defendant had been arrested before recanting); In the Interest of J.H., 559 So.2d 702, 703 (Fla. 4th DCA 1990) (distinguishing C.T. because defendant had been arrested before recanting); but see Steele, 537 So.2d at 712 (reversing conviction despite fact that recantation was made after arrest).

In this case, the child corrected the false information before he was formally arrested. Although one officer testified that it took him ten to fifteen minutes to get the juvenile’s true name, there was no official recording of the false information and no harm was shown beyond the time expenditure. Under these circumstances, the motion to dismiss should have been granted.

Reversed and Remanded.

POLEN and SHAHOOD, JJ., concur.

      . See section 569.11(1), Florida Statutes (2004) ("It is unlawful for any person under 18 years of age to knowingly possess any tobacco product.'').


source: Caselaw Access Project

author: REYES, ISRAEL U., Associate Judge.

license: Public Domain

text:
    Michael W. ALICH, Appellant, v. Kara CLAPP, Appellee.
    No. 4D05-237.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.

      Michael W. Alich, Wellington, pro se.
    Michael R. Hanrahan, West Palm Beach, for appellee.
   REYES, ISRAEL U., Associate Judge.

The first issue for us to consider is whether the trial court erred in striking the father’s pleadings. Although it is a very harsh sanction, it was within the trial court’s discretion to strike the father’s pleadings. Hoffman v. Hoffman, 718 So.2d 371 (Fla. 4th DCA 1998). It was also within the court’s discretion to deny the father the ability to present evidence on testimony at the trial with respect to financial issues. Id. Therefore, on this issue we affirm.

Next, the father is correct that the trial court erred in imputing income to him for purposes of determining his child support obligation. The trial court’s determination was not supported by competent, substantial evidence. See Schram v. Schram, No. 4D04-1622, — So.2d -, 2005 WL 2138747 (Fla. 4th DCA Sept.7, 2005). The trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages. Konsoulas v. Konsoulas, 904 So.2d 440, 443 (Fla. 4th DCA 2005). It is error to rely on outdated income figures when determining what level of income to impute to a parent. See § 61.30(2)(b), Fla. Stat. (2001); Wendel v. Wendel, 852 So.2d 277, 284 (Fla. 2d DCA 2003); see also Mitchell v. Mitchell, 841 So.2d 564, 569 (Fla. 2d DCA 2003). There was no evidence or findings as to the father’s earning potential, source of imputed and actual income, and adjusted income. On this issue, we reverse and remand for the court to make appropriate findings.

Because the trial court erred in imputing income to the father, the trial court also erred in determining that the father had the superior ability to pay seventy percent of the unreimbursed medical expenses. See Wilkinson v. Wilkinson, 714 So.2d 524 (Fla. 5th DCA 1998). On remand, the trial court should reconsider the obligation to pay unreimbursed medical expenses based on the parties’ current incomes. See Martinez v. Martinez, 911 So.2d 288, 289 (Fla. 2d DCA 2005); Cooper v. Cooper, 760 So.2d 1048, 1050 (Fla. 2d DCA 2000).

Finally, as to the issue of visitation, we reverse and remand with directions that a visitation schedule be implemented in keeping with the standard visitation schedule utilized by the courts. No findings were made that the welfare of the child was affected by visitation with the father or that there was a need to protect the child. See Damiani v. Damiani, 835 So.2d 1168, 1169 (Fla. 4th DCA 2002) (the privilege of visiting the minor children of the parties to a divorce proceeding should never be denied either parent so long as the parents conduct themselves in a manner which will not adversely affect the morals or welfare of such children).

Accordingly, after the trial court recalculates the parties’ incomes and child support obligations, it should determine each party’s ability to pay the unreimbursed medical expenses and order payment based on the same percentage as the parties’ incomes.

Affirmed in Part, Reversed in Part, and Remanded with Directions.

STONE and KLEIN, JJ., concur.


author: PER CURIAM.

text:
    Ira FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3051.
    District Court of Appeal of Florida, Third District.
    April 19, 2006.

      Michael D. Gelety (Ft.Lauderdale), for appellant.
    Charles J. Crist, Jr., Attorney General, and Annette M. Lizardo, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and WELLS, JJ.
   PER CURIAM.

Appellant, Ira Ferguson, appeals from an Order denying his Motion for Post Conviction Relief based on the alleged ineffective assistance of trial counsel, following an evidentiary hearing.

At the hearing on Appellant’s motion, a number of theories were presented by the Appellant. Specifically, Appellant claimed that trial counsel failed to communicate and advise Appellant of a State plea offer, and his legal rights and options concerning the plea; failed to prepare and litigate against Appellant’s confession; failed to present evidence and witnesses; interfered with Appellant’s right to testify; and failed to challenge the detention of the Appellant. Among other things, the trial court found that no plea offer was made and that Appellant waived his right to testify at trial; however, the court did not address Appellant’s waiver, if any, of his right to testify at the suppression hearing.

We find that the trial court’s findings are inconsistent with the Record evidence regarding the alleged plea offer; and that the trial court failed to make any findings regarding counsel’s interference with Appellant’s right to testify in his own defense at the suppression hearing.

Under Strickland v. Washington, a criminal conviction may be overturned for ineffective assistance of counsel if the convicted defendant can prove that the representation was deficient and that the deficiency prejudiced the client. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sochor v. State, 883 So.2d 766, 771 (Fla.2004). The State and the Appellant agree that the application of the Strickland standard by the trial court, regarding ineffective assistance of counsel will be given deference so long as the court’s findings are supported by “competent, substantial evidence.” Sochor, 883 So.2d at 781. Thus, if there is any evidence to support the trial court’s findings, the decision should be affirmed.

PLEA OFFER

Contrary to the finding of the trial court that “[tjhere was no plea to convey,” the Record clearly reflects a plea was offered to the Appellant by the State. Trial counsel admitted below that a ten-year plea was offered by the State. Thus, there is no “competent, substantial evidence” to support the conclusion that no plea offer was offered to the Appellant.

In his testimony, trial counsel initially indicated that no plea offer was proffered by the State. “I’m not aware that any plea offer was extended to Mr. Ferguson because of the circumstances of the case.” Later during the same hearing, trial counsel gave the following testimony during questioning on behalf of Appellant:

Q: What was the plea offer?
A: I believe— if I can refresh my recollection, I believe there might have been a plea offer of ten years.
Q: That’s better than twenty.
A: Well, you don’t expect to lose.

Consequently, contrary to the trial court’s finding, it is clear a ten-year offer was made by the State.

Appellant also argues that even if trial counsel informed him of the State’s plea offer, trial counsel’s representation was deficient because trial counsel never discussed with him the strength of the State’s case, and never advised Appellant that he could take a conditional plea and appeal the denial of the motion to suppress his confession.

Florida Rule of Criminal Procedure 3.171(c)(2), requires defense counsel to inform his or her client of “(A) all plea offers; and (B) all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant.” The Florida Supreme Court held in Cottle v. State that ineffectively informing a client of a plea offer can constitute ineffective assistance of counsel. 733 So.2d 963, 966-67 (Fla.1999).

In the instant case, trial counsel admitted in his testimony, during Appellant’s Rule 3.850 hearing, that he never' discussed the possibility of a conditional plea with the Appellant.

Q: Do you know whether or not you can preserve a motion to suppress notice and the rule of a motion to suppress and still take advantage of plea negotiation?
A: Oh, sure. Absolutely.
Q: How do you do that?
A: You take a conditional plea.
Q: Okay. Did you ever discuss that with Mr. Ferguson?
A: No.

Moreover, the Record reflects that trial counsel failed to advise the Appellant regarding the strength of the State’s case.

Q: Mr. Kalish, did you — this is an open ended question. You can do what you want with it. But did you take the time to tell Mr. Ferguson or did you give him your benefit of your experience and counsel, listen, you’re facing life, they have the car, they have your presence with the car, they have the car being registered to your friend, they have the dead guy who was identified positively by the victim in your arms some hours after the robbery, they have a confession that’s going to come in against you. Now whether you did it or not, this is a pretty tough, indefensible case, maybe we can — we can take the ten, preserve the issue on the motion to suppress? Did you tell him in this case it’s bad, man, why do this, I can’t win this case?
A: I don’t think I told him it’s bad. I think it was a winnable (sic) case.

According to trial counsel’s own admissions, it is clear that a plea offer was proffered by the State and that trial counsel did not advise the Appellant about his plea options to the extent that the Appellant could make an informed decision regarding the offer. Consequently, on remand, the trial court must determine whether, considering the Record evidence, Appellant is able to establish that trial counsel was ineffective, and that Appellant was prejudiced as a result. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Sochor, 883 So.2d at 771; Cottle, 733 So.2d at 966-969.

INTERFERENCE WITH RIGHT TO TESTIFY

Appellant raised two issues regarding his right to testify in his 3.850 motion, and at the hearing. Specifically, Appellant argued that trial counsel interfered with his right to testify in his own defense at both the hearing on Appellant’s motion to suppress and at Appellant’s trial.

The right to testify in criminal prosecutions is a mandatory, organic rule of procedure and a long-accepted constitutional principle.... [Hjowever, the right to testify is not so fundamental and personal that it can only be waived by the defendant; it may be waived by the defendant’s attorney in the absence of express disapproval on the record by the defendant during the pretrial or trial proceedings.

Cutter v. State, 460 So.2d 538 (Fla. 2nd DCA 1984) (internal citations omitted); see also Torres-Arboledo v. State, 524 So.2d 403, 410 (Fla.1998) (defendant has the right, under the due process clause of the United States Constitution, to testify in his or her own defense).

The Record clearly reflects that Appellant voluntarily waived his right to testify on his own behalf during trial; however, the court failed to make a finding or determination regarding Appellant’s waiver, if any, at the pretrial hearing.

On remand, the trial court must determine whether Appellant waived his right to testify at his pretrial hearing, and rule accordingly.

CONCLUSION

In light of the foregoing, we vacate the trial court’s Order on the ground that its finding that there was no plea offer is inconsistent with the Record and that it failed to make any findings regarding Appellant’s waiver of his right to testify at the pretrial hearing. Accordingly, we remand the matter for the trial court to determine and make findings of fact on the two issues.


text:
    Jorge PITA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-493.
    District Court of Appeal of Florida, Third District.
    April 19, 2006.
    Jorge Pita, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Jorge Pita appeals from an order summarily denying a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A) & (D).

Because the defendant Pita made a facially valid claim of ineffective assistance of counsel in Issue 2 of his petition, and because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Ryland v. State, 880 So.2d 816 (Fla. 1st DCA 2004).

Reversed and remanded for further proceedings.


author: NORTHCUTT, Judge.

text:
    Chester WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5426.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.
   NORTHCUTT, Judge.

Chester White appeals the circuit court’s summary denial of his motion seeking the return of property allegedly seized from him when he was arrested on a drug possession charge. We reverse and remand for further proceedings.

White pleaded guilty to possession of cocaine with the intent to sell or deliver. On March 16, 2005, he was adjudicated guilty and sentenced to imprisonment for a year and a day. On August 16, 2005, White filed a motion seeking the return of $873.00 in cash that he alleged was taken from him at the time of his arrest. The circuit court summarily denied Whites motion.

A trial court that has jurisdiction over criminal proceedings is vested with inherent authority over property seized or obtained in connection with the criminal proceeding and thus held in custodia legis. See Eight Hundred, Inc. v. State, 781 So.2d 1187, 1191-92 (Fla. 5th DCA 2001), and cases discussed therein. This authority continues beyond the termination of the criminal prosecution, thus enabling the court to direct the return of such property to its rightful owner. Id. However, section 705.105(1), Florida Statutes (2004), provides that title to unclaimed evidence or personal property lawfully seized pursuant to a lawful investigation that is in the custody of the court or clerk as part of a criminal proceeding, or seized as evidence by and in the custody of a law enforcement agency, shall vest permanently in the law enforcement agency sixty days after the conclusion of the proceeding.

In this case, the circuit court summarily denied White’s motion as untimely under the foregoing statute, and attached copies of his judgment and sentence. However, when summarily denying a motion for return of property as untimely under this provision, the court is obliged to attach portions of the record showing that the property was seized pursuant to a lawful investigation or held as evidence. Burden v. State, 890 So.2d 566, 567 (Fla. 2d DCA 2005); see also Cloud v. State, 801 So.2d 964 (Fla. 2d DCA 2001); McKinnon v. State, 752 So.2d 134, 135 (Fla. 2d DCA 2000).

If, on remand, the circuit court again summarily denies White’s motion, it must attach portions of the record demonstrating that the currency was seized and held as evidence by the law enforcement agency involved or that it was seized pursuant to an investigation and was in the custody of the court clerk. Otherwise, the court must entertain the motion on its merits. See Cloud, 801 So.2d at 964.

Reversed and remanded for further proceedings.

SALCINES and SILBERMAN, JJ., Concur.


text:
    Lowell BERNHEIMER, as Personal Representative of the Estate of Lailanie Malay Bernheimer, deceased, and Emilia Abistado, as Personal Representative of the Estate of Elaiza Abistado, deceased, Appellant, v. The CITY OF JACKSONVILLE, Appellee.
    No. 1D05-0856.
    District Court of Appeal of Florida, First District.
    April 20, 2006.
    J. Alfred Stanley, Jr., Jacksonville, for Appellant.
    Richard A. Mullaney, General Counsel, Scott D. Makar, Chief, Appellate Division and Howard M. Malte, Deputy General Counsel, Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. Pollock v. Fla. Dep’t of Highway Patrol, 882 So.2d 928 (Fla.2004).

VAN NORTWICK, HAWKES and THOMAS, JJ., Concur.


author: BENTON, J. KAHN, C.J.,

text:
    Fredrick MOORER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1350.
    District Court of Appeal of Florida, First District.
    April 21, 2006.
    Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Fredrick Moorer appeals his conviction for possession of cocaine, and the prison sentence he received. We affirm the conviction on the authority of State v. Frierson, 926 So.2d 1139, 1141, 2006 WL 300660 (Fla. Feb. 9, 2006), but vacate the sentence and remand with directions that he be resentenced by another judge because the trial judge’s comments at sentencing “may reasonably be read to suggest that appellant’s sentence was the result, at least in part, of his decision to exercise his constitutional right to insist on a jury trial.” Johnson v. State, 679 So.2d 831, 832-33 (Fla. 1st DCA 1996).

Various members of the family and others addressed the trial court at the sentencing hearing, requesting that Mr. Moorer be placed on probation for what was his first felony conviction. Among them was his wife, who told the court he was a hard worker, a good father, and a “homebody,” and that she was struggling with their two children on her own. The trial judge responded at length, saying, “This case, quite honestly, should have never been tried, but it was tried because he wanted it tried. I don’t get it. We’ve got hundreds of cases that are set for trial,” and that Mr. Moorer “didn’t have enough integrity to step up and accept responsibility, ... we tried a case that should have been resolved on docket day” “without a trial.” Before pronouncing sentence, the trial judge told Mrs. Moorer that her husband had “put you and your family and friends [through] having to come up here and ... you’re going to suffer because of what he did and because he wasn’t man enough to step up.”

Referring to trial by jury, the learned trial judge said, “This way of resolving cases is causing a problem.” “A trial court violates due process by using a protestation [or plea] of innocence against a defendant [during the] penalty phase[.]” Holton v. State, 573 So.2d 284, 292 (Fla.1990). “A defendant has the right to maintain his or her innocence and have a trial by jury. Art. I, § 22, Fla. Const.” Id. “The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence[.]” Id. A defendant should not be punished for exercising his constitutional right to stand trial before a jury of his peers, and this is so even when asking for a trial is not “the sole reason for the severity of [the] sentence.” Gillman v. State, 373 So.2d 935, 939 (Fla. 2d DCA 1979), quashed on other grounds, 390 So.2d 62 (Fla.1980).

The trial judge insisted in his denial of Mr. Moorer’s 3.800 motion that his comments at sentencing did “not demonstrate that the Court was punishing the Defendant for exercising his right to trial, but instead highlight, for the benefit of those calling for leniency, the Defendant’s failure to take responsibility for his actions.” In context, the distinction drawn is a subtle one, indeed. A defendant’s “failure to take responsibility” by pleading guilty is an impermissible consideration in sentencing. See Cavallaro v. State, 647 So.2d 1006, 1007 (Fla. 3d DCA 1994) (“[A] party’s decision to exercise his or her right to jury trial cannot be viewed as a showing of lack of remorse.”); Gillman, 373 So.2d at 938 (reversing where sentencing judge commented that defendant should have “acknowledged your responsibility and ... entered a guilty plea to the charges as opposed to requiring a jury to determine your guilt, because ... for whatever reason you continued to be unable to accept responsibility”). The trial judge’s comments “may reasonably be read to suggest that appellant’s sentence was the result, at least in part, of his decision to exercise his constitutional right to insist on a jury trial.” Johnson, 679 So.2d at 832-33.

Here, as in Johnson, “in an abundance of caution, we vacate appellant’s sentence, and remand with directions that appellant be resentenced by another judge, to be assigned by the chief judge of the circuit.” Id. at 833; see also Hubler v. State, 458 So.2d 350, 354 (Fla. 1st DCA 1984).

Reversed and remanded.

WOLF, J., concurs; KAHN, C.J., dissents with opinion.

KAHN, C.J.,

dissenting.

No one could argue that the trial judge’s comments on the record are not indicative of some level of frustration. Nevertheless, I am unable to find any inference that the sentence imposed was in any way connected to anything other than the trial judge’s reaction to the facts of the crime. The sentence, in actuality, was a good bit closer to the minimum than it was to the maximum. Accordingly, I find no prejudice to the defendant, and I am, respectfully, unable to join in the reversal. I rely in large part upon the sentiments expressed by Judge Arthur Lawrence in Johnson v. State, 679 So.2d 831, 833-34 (Fla. 1st DCA 1996) (Lawrence, J., dissenting).

      . Although the State seems to argue otherwise, it is immaterial that some of the trial court's remarks were addressed to Mrs. Moorer, and not directly to Mr. Moorer. See Cavallaro v. State, 647 So.2d 1006, 1006-07 (Fla. 3d DCA 1994) (reversing sentence after "the trial court engaged in a colloquy with a character witness in which the court indicated that [the] defendant had not accepted responsibility for his actions 'by going to trial, denying all guilt and coming in here and saying but I didn't do anything wrong,' ” and by "failing] to accept a plea bargain and ... show remorse by his decision to ... avoid fessing up”).

      . As defense counsel reminded the trial judge, the jury found Mr. Moorer guilty of possession of cocaine, but acquitted him of another, more serious offense: introducing cocaine into a county detention facility. Defense counsel explained that the State's insistence that his client plead guilty to the second-degree felony of which he was eventually acquitted "was one of the sticking points from our side, Judge,” in plea negotiations. To this, the trial judge said:
      In relation to the count about introducing into a detention facility, the jury found him not guilty. You know, there's nothing that prevents Mr. Mo[o]rer or any other defendant for [sic] accepting responsibility of what they're willing to accept it for, which is possession, in his case possession. He could have pled to possession.... That’s important, that I’m willing to accept responsibility as opposed to not guilty on everything, as you say in this one, the third count, and taking cases to trial that should be resolved without a trial on docket day. The evidence — you can't get it any clearer that he was in possession of cocaine.... He didn’t have enough integrity to step up and accept responsibility, and we tried a case that should have been resolved on docket day. That's my comments.
      In this connection, see Gallucci v. State, 371 So.2d 148, 150 (Fla. 4th DCA 1979) (“It is true that in considering a sentence for a defendant who has pleaded guilty a trial court may consider the plea itself as a step toward rehabilitation. However, while it may seem entirely logical, it is not so easy to simply turn the coin over and conclude that a request for a trial is an indication that a defendant cannot be rehabilitated. Our system presumes innocence and rightfully holds in high esteem an individual's right to trial by jury. And such right may be exercised freely by an individual, without fear that the choice to go to trial will be held against him.”).


text:
    Jerome BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2525.
    District Court of Appeal of Florida, First District.
    April 21, 2006.
    Nancy A. Daniels, Public Defender; Marjorie C. Holladay, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jerome Bryant appeals his conviction for burglary of a structure and his sentence, including an order of restitution. We affirm the conviction and habitual offender sentence; however, we reverse the order of restitution to the extent that it orders $9000 of restitution for thefts that were, as the state concedes, not proven. See Perez v. State, 596 So.2d 487, 488 (Fla. 5th DCA 1992) (“It [is] error to order restitution on the uncharged counts.”). Reversed and remanded.

KAHN, C.J., WOLF, and BENTON, JJ., concur.


text:
    Susanne R. MURPHY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D05-2705.
    District Court of Appeal of Florida, First District.
    April 21, 2006.

      Appellant Susanne R. Murphy, pro se.
    John D. Maher, Florida Unemployment Appeals Commission, Tallahassee, for Ap-pellee.
   PER CURIAM.

Susanne Murphy, appearing pro se, appeals a decision of the Unemployment Appeals Commission which requires her to reimburse the Agency for Workforce Innovation (“Agency”) for unemployment benefits in the amount of $550. We vacate the Commission’s order and remand for further proceedings.

Ms. Murphy claims, and has claimed all along, that she was entitled to unemployment compensation benefits for the workweeks of November 15-19 and 22-26, 2004. However, when she attempted to file online for benefits, the online system defaulted to the subsequent pay period and would not allow her to input the correct dates. The appeals referee found this error to have been made “inadvertently.” Ms. Murphy notified the Agency of the problem as early as February 2, 2005. The Agency does not argue that Ms. Murphy is not entitled to any benefits; it argues only that she is not entitled to benefits for the dates mistakenly recorded — an argument uncontested by Ms. Murphy. Accordingly, we are perplexed why the Agency’s records were not simply amended to reflect the correct dates for which Ms. Murphy was entitled to benefits. This is, after all, not a case of overpayment; rather, it is simply a case of a claimant receiving benefits to which she was entitled, but of which the Agency’s records reflect the incorrect dates. In essence, we are confronted with a scrivener’s error.

The order lacks competent substantial evidence to support a finding that Ms. Murphy has received benefits to which she was not entitled. We therefore vacate the order and remand this case to the appeals referee to make a definitive finding of whether Ms. Murphy was eligible for unemployment benefits for the weeks of November 15-19 and 22-26, 2004. If the appeals referee finds that Ms. Murphy was indeed eligible, the Agency’s records shall be amended to reflect the payment of $550 for the correct time period and the order purporting to require Ms. Murphy to reimburse the Agency shall be struck. “It is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street.” Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387-88, 68 S.Ct. 1, 92 L.Ed. 10 (1947) (Jackson, J., dissenting).

VACATED AND REMANDED with INSTRUCTIONS.

KAHN, C.J., WOLF and BENTON, JJ., concur.


text:
    OFFICE OF INSURANCE REGULATION, Appellant, v. AIU INSURANCE COMPANY, American Home Assurance Company, American International South Insurance Company, et al., Appellees.
    No. 1D05-2273.
    District Court of Appeal of Florida, First District.
    April 24, 2006.

      S. Marc Herskovitz and Elenita Gomez, Legal Services Division, Office of Insurance Regulation, Tallahassee, for appellant.
    Daniel C. Brown, Robert Pass, Kelly A. Cruz-Brown, and Christine R. Dean, of Carlton Fields, P.A., Tallahassee, for ap-pellees.
   PER CURIAM.

The Administrative Law Judge erred in concluding that the appellees had demonstrated standing to challenge proposed rule 690-170.013(7), Fla. Admin. Code. While the interests of the appellees are arguably within the zone of interests to be regulated by the proposed rule, the appel-lees did not demonstrate that application of the proposed rule will result in a real and sufficiently immediate injury in fact to afford them standing to challenge the proposed rule. See Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 808 So.2d 243 (Fla. 1st DCA 2002). The other issues are mooted by this determination. The final order is REVERSED.

BARFIELD, BROWNING, and THOMAS, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Ricky Joe BRONSON Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4533.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public, Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Ricky Joe Bronson Jr. appeals his convictions and, sentences for burglary and theft. He claims the trial court erred in denying his motion for judgment of acquittal because there was insufficient circumstantial evidence to support the convictions. We agree and reverse.

On December 29, 2003, around 9:30 a.m., Mr. Robert Evans received a frantic call from his wife to come home immediately. Upon returning, he found the interior of his home in shambles and a number of items missing. Among the missing items were a television with a twenty-two- or twenty-four-inch screen, a three-gallon barrel-shaped plastic pickle jar containing pennies, about sixty-one dollars in half-dollar coins, and three two-dollar bills. Neither he nor his wife had given anyone permission to enter the home that morning in their absence or to remove property. A neighbor told the investigating officers that he had observed an older model white pickup truck in front of the Evans home earlier that morning between 8:30 and 9 a.m., when neither Mr. nor Mrs. Evans was at home. The neighbor assumed that the one man he saw was there to work on the air conditioner.

A BOLO describing the pickup truck was issued; and, before the morning ended, a white, older model pickup truck was stopped approximately a mile and a half to two miles away from the Evans home. The appellant’s father, Ricky Joe Bronson Sr., was the driver of the truck, and Mr. Bronson Jr. was the passenger. The truck had tires with a distinctive tread that matched tire tracks left at the scene of the burglary. The deputies found a plastic jug filled with coins in the bed of the truck, a bag of half-dollar coins under the passenger seat, and three two-dollar bills in the driver’s door panel. The truck also contained a big screen television, two walkie-talkies, gloves, and screwdrivers.

Sheriffs deputies transported Mr. Evans and his neighbor to the scene of the traffic stop. The neighbor identified the truck as similar to the one he had seen at the Evans home, and Mr. Evans identified the bills and coins as property taken from his home. Mr. Evans knew neither occupant of the truck, and the neighbor could not identify either occupant as the man he had seen earlier at the Evans home.

In their investigation, the deputies discovered Mr. Evans’ stolen television outside a residence on Butler Road, the home of a person identified as the girlfriend of Mr. Bronson Jr., seven and a half to eight miles from the Evans home. At trial, Mr. Bronson Jr.’s half-sister, who had spent the night before the Evans burglary at the Butler Road residence, testified for the defense that Mr. Bronson Jr. had also been at that residence all night long and into the morning. She testified that she saw Mr. Bronson Sr. arrive there around 9:45 to 10 a.m. that morning in a white pickup truck. He drove to the rear of the residence and unloaded a small television onto an outside air conditioning unit. She also noted a big screen television in the truck. Then she saw Mr. Bronson Jr. leave the Butler Road residence with his father in the pickup truck.

In his motions for judgment of acquittal, defense counsel contended that the State failed to establish a prima facie case of guilt beyond a reasonable doubt or, alternatively, that the State failed to refute his reasonable hypothesis of innocence in its solely circumstantial evidence case. Counsel pointed out to the court that no evidence placed Mr. Bronson Jr. at the Evans home, the neighbor did not identify him as the man he saw there, and no fingerprints linked him to the scene of the burglary. The trial court denied his motions.

The question we face is whether the circumstantial evidence admitted here is sufficient to withstand the motion for judgment of acquittal. “Although the circumstantial evidence rule can be stated with certainty and ease, applying the rule is often a daunting task because ‘the nature and quantity of circumstantial evidence in each case is unique.’” Haugabrook v. State, 827 So.2d 1065, 1067 (Fla. 2d DCA 2002) (quoting McArthur v. State, 351 So.2d 972, 976 (Fla.1977)). Where a conviction is based entirely upon circumstantial evidence, the sufficiency of the evidence is measured by a special standard of review. “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

Because the circumstantial evidence test protects against a conviction based on impermissibly stacked inferences, Miller v. State, 770 So.2d 1144, 1149 (Fla.2000), suspicion, standing alone, does not satisfy the State’s burden of proving an accused’s guilt beyond a reasonable doubt. As explained by our supreme court:

Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which maybe entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient, to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.

Davis v. State, 90 So.2d 629, 631-32 (Fla.1956). In those instances where a jury, as trier of fact, has found an accused guilty, that conviction must be reversed on appeal if it is not supported by competent, substantial evidence. Crain v. State, 894 So.2d 59, 71 (Fla.2004). Thus, where the State’s evidence is not inconsistent with the defendant’s reasonable hypothesis of innocence, then a conclusion follows that no jury could return a verdict in favor of the State. Law, 559 So.2d at 189.

Mr. Bronson Jr. argues that a reasonable hypothesis of innocence flows directly from the State’s lack of evidence in two important respects. First, the State’s evidence against him establishes only a mere suspicion that he committed or aided the burglary and theft. The strength of that suspicion is based only upon his proximity to the stolen property found an hour or two later in a truck in which he was the passenger. No evidence placed him at. or near the crime scene prior to the moment Mrs. Evans telephoned her husband. Similarly, although evidence placed him at the Butler Road residence, it established his presence there at the time his father arrived alone with the Evans’ television. Thus, Mr. Bronson Jr.’s only link to the crimes was his presence in the truck driven by his father that contained the stolen items. And it was his father who. also had possession of the truck earlier that morning.

Next, Mr. Bronson Jr. contends that the State’s lack of evidence is not cured by the inference provided by section 812.022(2), Florida Statutes. (2003). This statute provides that if a person is proven to be in possession of recently stolen property, then the jury may infer that the possessor must have known that the property was stolen. Moreover, unexplained possession of stolen property is sufficient to support a burglary conviction when it occurs as an adjunct to a theft. Francis v. State, 808 So.2d 110, 134 (Fla.2001). To receive the benefit of the statutory inference, the State must establish, pursuant to section 812.022(2), that a defendant had “possession of property recently stolen.” As to Mr. Bronson Jr., the State has a two-part evidentiary predicate burden. First, it must prove the property at issue was recently stolen. And, second, it must establish Mr. Bronson- Jr. had possession of the property. Proof of both predicate elements would entitle the State to the inference that Mr. Bronson Jr., as a possessor of the recently stolen property, stole the property. Oil the evidence presented at trial, we find the State has established the first predicate element.'

Furthermore, possession of the stolen property must be exclusive for the State to be entitled to the inference. However, that exclusive possession may also be joint possession.

Mere possession of stolen property, without other evidence of guilt, is not to be regarded as' prima facie evidence of larceny, robbery, receiving stolen property, or burglary. It must be shown that the possession of the defendant was exclusive, recent, and involved a distinct and conscious assertion of property. The meaning of the terms “exclusive” and “recent” will vary with the circumstances of each case.

Scobee v. State, 488 So.2d 595, 598 (Fla. 1st DCA 1986) (quoting Wharton’s Crim. Evid., § 139, at 236-37; emphasis by the court). The court noted that the “exclusive” requirement does not mean the possession must be separate from all other persons. Instead, the “exclusive” requirement includes the “joint possession of two or more persons acting in concert,” and for those, “exclusive” applies to any one of them. Id. Possession, therefore, can be by one or by a group. Id. at 599 (citing People v. Garrett, 115 Ill.App.2d 333, 253 N.E.2d 39 (1969)). “The joint possession of two or more persons acting in concert is ‘exclusive’ as to any one of them.” Walker v. State, 896 So.2d 712, 720 n. 5 (Fla.2005).

In measuring the evidence as to the “joint and exclusive” requirement, Scobee noted that the evidence there placed the defendant at the scene of the crime and that he left in a vehicle with the stolen goods in the company of his wife and another person who was implicated in the crime. 488 So.2d at 598. Here, in comparison, the State was unable to present evidence from which it could be inferred that Mr. Bronson Jr. was at the scene of the crime or that he was in the pickup truck at the time it left the scene of the crime. Further, the State was unable to present evidence that Mr. Bronson Jr. was acting in concert with another person in committing the burglary.

This requirement was also addressed in Boone v. State, 711 So.2d 594 (Fla. 1st DCA 1998). There, the court concluded that the State was not entitled to the statutory inference, reasoning:

Here, no evidence suggests that appellant, at the time he was taken into custody, personally possessed or had control or custody over the stolen boxes. Although the deputy found three stolen boxes in the house where appellant, his brother, and Powell had resided, the boxes were discovered six or seven days after appellant started the Louisiana job. At the time, only Michael and the great grandmother lived at the house. No evidence showed how long the boxes had been at the residence. In sum, the prosecution’s evidence did not show that appellant ever actually possessed the items discovered in the house to the extent that he exercised any dominion and control over them, let alone exclusive dominion and control.

Id. at 596.

We conclude that the evidence here failed to establish exclusive possession and, therefore, the State is not entitled to the statutory presumption. The possession must be more than superficial; it must be conscious and substantial. And, most important, it must be both personal and exclusive. Garcia v. State, 899 So.2d 447, 451 (Fla. 4th DCA 2005).

The evidence fails to establish the requisite elements of personal and exclusive possession of the stolen items by Mr. Bronson Jr. and thus fails to demonstrate his actual possession of the property. Also, his mere proximity to the items fails to establish even constructive possession. See Davis v. State, 761 So.2d 1154, 1158 (Fla. 2d DCA 2000). Accordingly, the State was not entitled to add the section 812.022(2) statutory inference to its quantum of evidence. The circumstantial evidence not only fails to refute Mr. Bronson Jr.’s reasonable hypothesis of innocence but also fails to establish a prima facie case of guilt.

The similar circumstances and reasoning of Garcia, 899 So.2d 447, further support this conclusion. In Garcia, the victim came home unexpectedly to find a red van parked on his lawn, backed up to his front door. The driver of the van began to honk frantically, and a Hispanic man with sideburns and wearing bluish pants ran out of the house and dove head first into the front seat on the passenger side. Someone inside the van immediately shut the side door, and the van sped off. The police responded immediately, and a BOLO was issued. Ten minutes after receiving the BOLO, a deputy stopped a van matching the description and found that it contained the victim’s stolen property. The van also contained Mr. Garcia, who was a rear-seat passenger, and three other persons. At trial, the victim could not identify Mr. Garcia as either the man he saw run out of his house and dive into the van or as the person who closed the side door. The victim also could not identify any of the other persons found in the van. Id. at 449. Mr. Garcia moved for judgment of acquittal, arguing that no evidence pointed to him as the person who ran out of the house or who shut the side door of the van before it sped away. He also argued that because he was one of several persons in the van, no inference could be made that he was the person who stole the items or burglarized the victim’s home. The trial court denied his motion for judgment of acquittal, but the Fourth District reversed. Id. at 451.

The Fourth District held that the State’s evidence of Mr. Garcia’s participation in the burglary and theft was insufficient as proof inconsistent with the defendant’s theory of innocence. Mr. Garcia’s presence in the red van in proximity to recently stolen property standing alone did not preclude every reasonable inference that he did not participate in the crimes. Neither could the State take advantage of the statutory inference arising from unexplained possession of recently stolen property because Mr. Garcia did not have exclusive possession of that property, and he was not shown to have any ability to exercise dominion and control over it. Id.

Like the Fourth District, in Garcia, we conclude that the trial court erred in denying the motion for judgment of acquittal and reverse the convictions for burglary and theft. We remand the case with instructions to discharge Mr. Bronson Jr.

Reversed and remanded with instructions.

SILBERMAN and WALLACE, JJ„ concur.


author: LaROSE, Judge.

text:
    Alicia C. NORRIS, Appellant, v. David Chadwick NORRIS, Appellee.
    No. 2D05-5501.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.

      Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant.
    Christine M. Jalbert, St. Petersburg, for Appellee.
   LaROSE, Judge.

Alicia Norris appeals the trial court’s order enforcing provisions of a marital settlement agreement (MSA). We affirm in part and reverse in part.

At the time of their marriage dissolution in May 2005, the parties agreed on little. Ultimately, they ceded major decisions concerning their children to others. The MSA provided that the parties, together, would make major decisions affecting their children’s health, welfare, and education. If they could not agree on medical matters, the MSA provided that the children’s pediatrician would make the final decision. The MSA also provided that a specified parenting coordinator would make a final decision, following specified procedures, on other matters in the case of an impasse. The trial court approved the MSA and retained jurisdiction to enforce its terms.

The parties soon disagreed on matters concerning the children’s health care and education. Ms. Norris wanted no inoculations. She also wanted the children to attend, at her expense, a private school with a nontraditional curriculum. Mr. Norris wanted the children inoculated and wanted them to attend public school. After meeting with both parents, the pediatrician, in a written report, concluded that inoculations were appropriate; the benefits of this regimen outweighed the risks. As for the children’s educational environment, the parenting coordinator suggested in a short letter that he preferred a public school. Mr. Norris moved to enforce the MSA’s provisions. Ms. Norris moved the trial court to select the school environment “in the best interests of the minor child.”

After a lengthy hearing, the trial court ordered the children to be inoculated within forty-five days. The trial court also ordered the children to be placed in public school. The trial court stayed its order pending our review.

According to Ms. Norris, the trial court improperly interpreted the MSA and based its rulings on insufficient evidence. We review the wording and meaning of the MSA de novo. Spalding v. Spalding, 907 So.2d 1270, 1273 (Fla. 5th DCA 2005) (citing McIlmoil v. McIlmoil, 784 So.2d 557, 561 (Fla. 1st DCA 2001) (holding final judgment incorporating MSA to be interpreted like any contract; unambiguous language to be given realistic interpretation based on plain, everyday meaning conveyed)). We cannot remake the parties’ agreement. The parties entered into the MSA, and a court will honor its terms if the children’s best interests are served fully. Id. at 1275; Wendel v. Wendel, 852 So.2d 277, 285 (Fla. 2d DCA 2003).

We are unpersuaded by Ms. Norris’s argument that the MSA did not authorize the pediatrician to decide the inoculation issue. By its plain language, the MSA provides that medical decisions, absent agreement by the parents, will be made by the pediatrician according to procedures specified in the MSA. The pediatrician met with both parents and issued a written opinion. He determined that inoculations were medically indicated. Ms. Norris did not seek a second opinion nor did she present any evidence that the MSA procedure and the pediatrician’s decision were not in the children’s best interests. The record demonstrates that the trial court properly considered the evidence and the children’s best interests. Accordingly, we affirm the trial court’s order as it relates to the inoculations.

Ms. Norris also argues that there was insufficient evidence to support the trial court’s order that the children be educated in public school. Here, we must agree with Ms. Norris. The MSA provided that, absent the parents’ agreement, the parenting coordinator would make the final decision on educational matters. Under the MSA, the parenting coordinator was required to review all information provided by the parties. The MSA also required him to make written findings and issue a written report.

The parenting coordinator made no written findings and issued no written report. He merely prepared a two-paragraph letter explaining that he encouraged the parents to resolve the matter and opining that the children might be better monitored in a public school. He visited neither school. The trial court also heard the parents’ testimony and that of a witness called by Ms. Norris who favored the private school. The trial court placed significant emphasis on the fact that the parenting coordinator’s recommendation would be final under the MSA.

Unfortunately, the trial court’s order, as it related to the education issue, is not supported by the record. See generally Roski v. Roski, 730 So.2d 413, 414 (Fla. 2d DCA 1999) (holding evidence did not support supervised visitation); Scaringe v. Herrick, 711 So.2d 204, 205 (Fla. 2d DCA 1998) (emphasizing importance of trial court’s fact-finding responsibilities in determining best interests of children). The parenting coordinator did not follow the provisions of the MSA concerning the children’s educational future. He offered but a conclusory opinion unsupported by a factual basis. Although we express no view on what is the appropriate educational environment for the children, we do not find competent, substantial evidence in the record supporting a finding that public school attendance serves the children’s best interests. Thus, we must reverse that portion of the trial court’s order concerning school placement.

Affirmed in part; reversed in part.

FULMER, C.J., and CANADY, J., Concur.

      . The older child attended the nontraditional, private elementaiy school. The younger child was not yet of elementary school age.

      . Ms. Norris argues that the trial court should not have ruled on inoculations and schooling for the younger child because Mr. Norris’s motion did not encompass that child. We reject this argument. Mr. Norris's motion and requested relief contemplated enforcement of the MSA as to both children.

      . Ms. Norris's argument that the children should not be inoculated because of her religious scruples is not supported by the record.


author: KELLY, Judge.

text:
    Phillippa WAHL and Joseph Sullivan, Appellants, v. Jeffrey S. TAYLOR, individually and d/b/a Affordable Home Improvements and Repairs, and Home Depot USA, Inc., a corporation licensed to do business in Florida, Appellees.
    No. 2D05-2483.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.
    Richard J. Dafonte and Elizabeth A. Wulff, Largo, for Appellants.

      Paul E. Olah, Jr., of Gurley, Dramis, Lazo, Sarasota, for Appellee Home Depot USA, Inc.
    No appearance for Appellee Jeffrey S. Taylor.
   KELLY, Judge.

Phillippa Wahl and Joseph Sullivan appealed an order that granted Home Depot’s motion for summary judgment. Because an order merely granting a motion for summary judgment is not a final order, this court, citing Better Government Association of Sarasota County v. State, 802 So.2d 414 (Fla. 2d DCA 2001), entered an order relinquishing jurisdiction to the trial court to give Wahl and Sullivan an opportunity to obtain a final order or face dismissal. In response, Wahl and Sullivan obtained an order stating, “ORDERED AND ADJUDGED that the Co-Defendants’ Motion for Final Summary Judgment is GRANTED in favor of the Co-Defendant HOME DEPOT USA, INC. and against the Plaintiffs PHILLIPPA WAHL and JOSEPH SULLIVAN.” In Better Government, we stated that an order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party. Although we directed Wahl’s and Sullivan’s attention to Better Government in our order relinquishing jurisdiction, they still failed to obtain a final order. Accordingly, this appeal is dismissed for lack of jurisdiction.

Appeal dismissed.

CASANUEVA and VILLANTI, JJ., concur.

      . Jeffrey S. Taylor, individually and d/b/a Affordable Home Improvements and Repairs, is not involved in this appeal.

      . This court’s practice of relinquishing jurisdiction to enable an appellant to obtain an appealable order differs from that of the First and Fifth Districts which automatically dismiss an appeal for lack of jurisdiction if the order appealed is not final. See Arcangeli v. Albertson’s, Inc., 550 So.2d 557 (Fla. 5th DCA 1989); Johnson v. First City Bank of Gainesville, 491 So.2d 1217 (Fla. 1st DCA 1986).


text:
    STATE of Louisiana v. Anthony THOMAS.
    No. 2005-K-2373.
    Supreme Court of Louisiana.
    April 17, 2006.
   PER CURIAM.

|! Granted. The decision of the court of appeal is reversed, defendant’s conviction and sentence are reinstated and this case is remanded to the district court for execution of sentence.

We do not subscribe to the state’s view that the grounds for reversing defendant’s conviction and sentence for attempted aggravated burglary, that the prosecutor commented indirectly on defendant’s failure to take the stand, see State v. Thomas, 99-1500 (La.App. 1st Cir.6/23/00), — So.2d - (unpub’d) constituted a structural defect in the proceedings which nullified the jury’s verdict and permitted it to reindict defendant for the charged offense of aggravated burglary. Comment on the defendant’s failure to take the stand at trial is a trial error, not a structural defect in the proceedings, that has been subject to harmless-error analysis at the federal level since Chapman v. California, 388 U.S. 263, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Moreover, we have clarified that as a matter of Louisiana law, the mandatory mistrial provisions of La.C.Cr.P. art. 770, which encompass a prosecutor’s direct or indirect comment on the defendant’s failure to |2testify, are directives to the trial judge and do not preclude an appellate court from conducting harmless-error analysis. State v. Johnson, 94-1379 (La.11/27/95, 664 So.2d 94). The jury’s return of a lesser verdict of attempted aggravated burglary at his first trial thereby acquitted him of the charged offense of aggravated burglary. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)(conviction of lesser offense bars retrial for greater offense); La. C.Cr.P. art. 598(A)(same).

Nevertheless, reversal of defendant’s first conviction and sentence did not preclude the state from holding a second trial, only from seeking a conviction for aggravated burglary. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). While the state erred in rein-dicting defendant and retrying him for the crime of aggravated burglary, the defendant did not move to quash the proceedings before trial, and the trial court, sitting as the fact finder in the case after defendant waived a jury, returned a verdict of guilt on the non-barred offense of unauthorized entry of an inhabited dwelling, a lesser included offense and a responsive verdict to the charged offense as a matter of La.C.Cr.P. art. 814(A)(42). The court of appeal therefore had no basis for vacating that verdict as unresponsive to the charge that it believed should have been brought, ie., attempted aggravated burglary, because the verdict was not inherently tainted by virtue of its return in the trial of a jeopardy-barred offense. See Morris v. Mathews, 475 U.S. 237, 245, 106 S.Ct. 1032, 1037, 89 L.Ed.2d 187 (1986). Nor was it precluded by any factual finding necessarily resolved by the jury against the state at defendant’s first trial when it returned a verdict of attempted aggravated burglary because a factfinder in Louisiana may return a verdict of attempt “although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.” R.S. 14:27(C).

WEIMER, J., recused.

       Associate Justice John L. Weimer recused.


text:
    In re Clarence T. NALLS, Jr.
    No. 2006-B-0257.
    Supreme Court of Louisiana.
    April 17, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent filed and pursued a frivolous lawsuit on behalf of a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.16(a)(1) (failure to decline or terminate a representation when the representation will result in a violation of the Rules of Professional Conduct or other law), 3.1 (meritorious claims and contentions), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Clarence T. Nalls, Jr., Louisiana Bar Roll number 1500, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of probation governed by the terms and conditions set forth in the Petition for Consent Discipline. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

VICTORY, TRAYLOR and KNOLL, JJ., would reject the petition.


text:
    In re Karl E. BOELLERT.
    No. 2006-B-0482.
    Supreme Court of Louisiana.
    April 17, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in a sexual relationship with a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.7 (conflicts of interest) and 2.1 (a lawyer shall exercise independent professional judgment in representing a client) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Karl E. Boellert, Louisiana Bar Roll number 3212, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of probation governed by the terms and conditions set forth in the Petition for Consent Discipline. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

JOHNSON, J., would reject.


text:
    In re a Matter of AN OFFENSE UNDER INVESTIGATION.
    Nos. 2006-KK-0270, 2006-KK-0271.
    Supreme Court of Louisiana.
    April 17, 2006.
   PER CURIAM.

The application in 06-KK-270 is denied.

The application in 06-KK-271 is granted in part, and otherwise denied. Although we find that the trial court correctly viewed the first conference call involving Dr. Anna Pou, Tenet media advisor Mr. Steve Campanini, and Ms. Aubrey Andrews, as preliminary discussions “with a view to obtaining professional legal services from the lawyer” under La. C.E. art. 506(A)(1), the trial court’s protective order is modified as follows:

The protective order is granted as to the first conversation among Ms. Andrews, Mr. Campanini, and Dr. Pou, but only as to the portion of the statements made prior to Ms. Andrews informing Dr. Pou that she was Tenet’s counsel exclusively, and would not be representing her.
The protective order is denied as to any subsequent conversations had between Dr. Pou and Mr. Campanini, Dr. Pou and Ms. Andrews, or Dr. Pou, Mr. Campanini, and Ms. Andrews.


text:
    STATE of Louisiana v. Morris Randal FISH.
    No. 2005-KK-1929.
    Supreme Court of Louisiana.
    April 17, 2006.
   PER CURIAM.

IjThe state instituted prosecution of defendant by filing a bill of information on June 14, 2001, charging him with possession of methamphetamine in violation of La.R.S. 40:967(C). The state thereby had two years in which to bring him to trial, or no later than June 14, 2003. La.C.Cr.P. art. 578(2). Various circumstances, including hearings on pre-trial motions, changes in defendant’s representation by counsel, and recusal of the original trial judge on his' own motion, pushed back that -date, and defendant’s motion for a continuance, filed on November 7, 2003 and granted on November 17, 2003, then gave the state an additional year, or until November 17, 2004, in which to bring the case to trial. La.C.Cr.P.- art. 580 (preliminary pleas suspend running of prescription until ruled upon, after which the state has one year, or the balance of the prescription period, whichever is longer, to bring the case to trial); State v. Fabacher, 362 So.2d 555, 556-57 (La.1978)(motion for a continuance constitutes a preliminary plea for purposes of art. 580).

|?On November 29, 2004, the defendant filed a motion to quash the prosecution on grounds that it had prescribed. The trial judge granted the motion and the court of appeal affirmed that ruling on grounds that all preliminary pleas had been satisfied by the- time defendant moved for his continuance on November 7, 2003, and that defendant had therefore filed his motion to quash, another preliminary plea for purposes of La.C.Cr.P. art. 580, State v. Hamilton, 369 So.2d 1299, 1300 (La.1979), after the deadline of November 17, 2004, had passed. The court of appeal concluded that defendant was therefore entitled to relief. State v. Fish, 40,265 (La.App. 2nd Cir.6/27/05)(on reh’g).

The state applied for review of that decision in this Court arguing in part that the court of appeal failed to account for a motion to quash R.S. 40:967(C) filed by defendant’s original attorney which the trial court has never considered. We need not address the state’s argument that the motion, although apparently overlooked by all parties and seemingly abandoned, constituted a preliminary plea and a continuing cause of suspension for purposes of La.C.Cr.P. art. 580. Cf. State v. Wagster, 361 So.2d 849, 856 (La.1978)(“[I]t is ordinarily incumbent upon the proponent of a motion to move for a hearing date on that motion. Otherwise it may be considered that the motion has been abandoned.”). The record shows that on July 8, 2004, the court conducted a status hearing during which the state and defense sought to pick a mutually-agreeable trial date. Both sides initially selected a date of September 27, 2004, within the expanded time limit, but then picked a date of November 29, 2004, when the state discovered that another trial had been set for the earlier date.

Apparently, neither side realized at that time that the later November trial date came after the date on which the prosecution would prescribe. At the | shearing on defendant’s motion to quash the prosecution as untimely, the state made clear that it did not accuse defense counsel of bad faith but indicated that it would never have agreed to the date of November 29, 2004, if it had realized that counsel then intended to file a motion to quash on grounds that the prosecution had prescribed as of November 17, 2004. Defense counsel acknowledged at the hearing that he had agreed to the November 29 date without realizing its significance for prescription. Counsel further explained that as he began to prepare for trial he realized the agreed-upon trial date was in fact beyond the point of prescription that “it would be malpractice for me not to file a motion to quash.”

However, without regard to the good faith or bad faith of counsel on either side, the status conference of July 8, 2004, constituted a grounds of suspension for purposes of La.C.Cr.P. art. 580 because it directly affected, by mutual assent, the state’s ability to bring this case to trial in a timely manner. Whether the state and defense intended the result or not, the effect of their mutual agreement was to extend prescription beyond the date of November 17, 2004 in the same manner as if counsel had joined in a continuance for that avowed purpose. State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1288-89 (joint motions for continuance constitute preliminary pleas for purposes of art. 580); State v. Anderson, 38,718, p. 19 (La.App. 2nd Cir.12/15/04), 889 So.2d 1237, 1248 (same); State v. Brent, 00-0072, pp. 5-6 (La.App. 4th Cir.11/29/00), 775 So.2d 565, 569 (same); Cf. State v. Brooks, 838 So.2d 02-0792, pp. 4-5 (La.2/14/03), 838 So.2d 778, 781 (continuance of status hearing for purposes of allowing defendant to substitute counsel suspended running of prescription because it actually affected the state’s ability to prosecute the case and gave the state an additional year in which to bring the case to trial). Thus, the state had until July 8, 2005, in which to try this case, |4and counsel’s motion to quash the prosecution on grounds of prescription then suspended that date and continues to suspend it while the appellate courts review the merits of the prescription issue. State v. Washington, 02-1346, p. 6 (La.5/20/03), 846 So.2d 723, 727.

Accordingly, the rulings below are reversed and this case is remanded to the trial court for further proceedings consistent with the views expressed herein.

RULINGS OF COURTS BELOW REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS.


author: VICTORY, J.,

text:
    Mark E. ANDREWS, On Behalf of Himself and others Similarly Situated v. TRANS UNION CORPORATION.
    No. 2005-C-2562.
    Supreme Court of Louisiana.
    April 17, 2006.

      VICTORY, J. Concurs in the Denial of the Writ and Assigns Reasons.
   VICTORY, J.,

concurring.

While I believe there may be some problems with the class definition adopted by the district court, my decision to concur in the denial of this writ is affected by the statement made by class counsel in its opposition to defendant’s writ to this court that it intends “upon remand, to request the trial court judge to modify the class definition, out of an abundance of caution, to ameliorate Judge Murray’s concerns.”


text:
    Jessica ESTE, Individually and as Natural Tutrix of the Minor Child Blanin Este v. Ramona REESE, et al.
    No. 2006-CC-0706.
    Supreme Court of Louisiana.
    April 4, 2006.
   In re Gemini Insurance Company; Pes-son, Terry; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. 0, No. 10-16932; to the Court of Appeal, Third Circuit, No. CW 06-00264.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Kimberly Williamson BUTLER, et al.
    No. 2006-KK-0731.
    Supreme Court of Louisiana.
    April 12, 2006.
   In re Butler, Kimberly Williamson et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 0; to the Court of Appeal, Fourth Circuit, No. 2006-K-0266.

Denied.


text:
    In re: MEDICAL REVIEW PANEL PROCEEDINGS in the Matter OF Stephanie NOE.
    No. 2005-C-2275.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re IMG Healthcare Network et al.; Hill, Michael M.D.; Hahn, Deborah; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 03-7772; to the Court of Appeal, Fourth Circuit, No. 2004-CA-0760.

Granted.


text:
    STATE ex rel. Laderrick CAMPBELL v. STATE of Louisiana.
    No. 2005-KH-2174.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Campbell, Laderrick; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 220-544.

Writ granted. Relator is to be furnished the requested record, checking it out through Ms. Patricia Foster of Louisiana State Penitentiary’s Legal Programs, who will assume responsibility for its return.


text:
    STATE of Louisiana v. Shane Everet EVANS.
    No. 2005-KK-2307.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 272060; to the Court of Appeal, Third Circuit, No. 05-184.

Writ granted. Judgment of the trial court denying defendant’s motion to suppress is hereby reinstated. The determination as to whether exigency existed was a factual determination made by the trial court. We find the trial court did not err in denying defendant’s motion to suppress. See State v. Brisban, 2000-3437 (La.2/26/02), 809 So.2d 923.


text:
    STATE ex rel. Gary POCHE v. STATE of Louisiana.
    No. 2005-KH-1442.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Poche, Gary;' — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 313-963; to the Court of Appeal, Fourth Circuit, No. 2004-K-1932.

Writ granted in part; otherwise denied. The Orleans Parish Clerk of Criminal District Court is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const, art. XII, section 3; R.S. 44:31; R.S. 44:31.1; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537.


text:
    CITY OF NEW ORLEANS’ DEPARTMENT OF FINANCE in its Capacity as the Orleans Parish Tax Collector v. TOURO INFIRMARY and all Other Consolidated Cases.
    No. 2005-C-1251.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Touro Infirmary; — Defendant; Applying for Reconsideration of this Court’s action dated February 17, 2006, Parish of Orleans, Civil District Court Div. M-7, No. 04-2424; to the Court of Appeal, Fourth Circuit, No(s). 2004-CA-0835, 2004-CA-0951, 2004-CA-1204.

Not considered. See Supreme Court Rule IX, section 6.


text:
    Cynthia CARAWAY, et al. v. SECOND CAPITAL, LLC d/b/a Microtel Inn & Suites, et al.
    No. 2005-CC-2134.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Caraway, Cynthia et al.; Caraway, Clyde; — Plaintiffs; Applying for Reconsideration of this Court’s action dated February 10, 2006; Parish of E. Baton Rouge, 19th Judicial District Court, Div. M, No. 518783; to the Court of Appeal, First Circuit, No. 2005-CW-0764.

Reconsideration granted. Plaintiffs writ application to this Court was timely filed based on the certificate of mailing from the United States Postal Service. Plaintiffs writ is denied on the merits.


text:
    UNITED CREDIT CORP., of Many, et al. v. James PERRY, Patrice Perry, and Yvette Perry.
    No. 2005-C-2200.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Perry, James et al.; Perry, Patrice; Perry Yvette — Plaintiffs; Applying for Reconsideration of this Court’s action dated February 10, 2006; Parish of Sabine, 11th Judicial District Court, Div. A, No. 55,769; to the Court of Appeal, Third Circuit, No. 04-1670.

Reconsideration denied.


text:
    Tammy Marie Munster, Wife of/and Eddie MUNSTER, and Tammy Marie Munster Wife of/and Eddie Munster in Their Capacities as Natural Tutors of Their Minor Child, Edward E. Munster, III v. Jennifer R. SMITH, Terrence J. Smith, Jr., American National Property and Casualty Co., and Allstate Insurance Co.
    No. 2006-C-0059.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Munster, Tammy Marie et al; Munster, Eddie; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 555-260; to the Court of Appeal, Fifth Circuit, No. 05-CA-356.

Not considered. Not timely filed. See Supreme Court Rule X, section 5.


text:
    Robert WHITE, et al. v. TRANSPORTATION INS. CO., et al.
    No. 2006-C-0060.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re White, Robert Jr. et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2002-1631; to the Court of Appeal, Third Circuit, No. CA 05-62.

Not considered. Not timely filed. See Supreme Court Rule X, section 5(a).


text:
    Pamela TAYLOR v. WAL-MART STORES, INC.
    No. 2006-C-0144.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Taylor, Pamela; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 1W, No. 02-07768; to the Court of Appeal, Second Circuit, No. 40,179-WCA.

Not considered. Not timely filed.


text:
    STATE ex rel. Tommy BORDELON v. STATE of Louisiana.
    No. 2005-KH-0959.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Bordelon, Tommy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, Nos. 03-CR-117139A, 03-CR-l18447; to the Court of Appeal, Third Circuit, No(s). 04-0490, 04-0491.

Denied.

KNOLL, J., recused.


text:
    STATE ex rel. Phillip HERNANDEZ v. STATE of Louisiana.
    No. 2005-KH-1276.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Hernandez, Phillip; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. A, No. 00-203087; to the Court of Appeal, Third Circuit, No. KH 04-01611.

Denied.


text:
    STATE ex rel. Ricky L. KING Jr. v. STATE of Louisiana.
    No. 2005-KH-1944.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re King, Ricky L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 415-236; to the Court of Appeal, Fourth Circuit, No. 2005-K-0677.

Denied.


text:
    STATE ex rel. Tony POLLARD v. STATE of Louisiana.
    No. 2005-KH-1946.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Pollard, Tony; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. B, No. 02K3604; to the Court of Appeal, Third Circuit, No. KH 05-00599.

Denied.


text:
    STATE ex rel. Brad HARRIS v. STATE of Louisiana.
    No. 2005-KH-1947.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Harris, Brad; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 98-6641; to the Court of Appeal, Fifth Circuit, No. 05-KH-551.

Denied.


text:
    STATE ex rel. Jason LANDRY v. STATE of Louisiana.
    No. 2005-KH-1949.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Landry, Jason; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. G, Nos. 31227, 31226, 31225; to the Court of Appeal, Third Circuit, No. KH 05-00505.

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. Donald R. WOOLEY v. STATE of Louisiana.
    No. 2005-KH-1950.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Wooley, Donald R.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 309-525; to the Court of Appeal, Fourth Circuit, No. 2005-K-0607.

Denied.


text:
    STATE ex rel. Harry JACKSON v. STATE of Louisiana.
    No. 2005-KH-1951.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Jackson, Harry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 4-00-523; to the Court of Appeal, First Circuit, No. 2005 KW 0863.

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. Thomas LANDRY v. STATE of Louisiana.
    No. 2005-KH-1952.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Landry, Thomas; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, Nos. 417-373, 418-744, 429-563; to the Court of Appeal, Fourth Circuit, No. 2005-K-0755.

Denied.


text:
    STATE ex rel. Thomas EAGLIN v. STATE of Louisiana.
    No. 2005-KH-1953.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Eaglin, Thomas; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 99-K-3652; to the Court of Appeal, Third Circuit, No. KH 05-00388.

Denied.


text:
    STATE ex rel. Dennis LIGHTEN, Jr. v. STATE of Louisiana.
    No. 2005-KH-1955.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Lighten, Dennis Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, No. 37,621.

Denied.


text:
    STATE ex rel. Whitney BATISTE v. STATE of Louisiana.
    No. 2005-KH-1956.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Batiste, Whitney; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 93-424; to the Court of Appeal, Third Circuit, No. KH 05-00493.

Denied. Relator is directed to refile his application in the court of appeal consistent with U.R.C.A. Rule 4-2.


text:
    STATE ex rel. Antonio T. MCDONALD v. STATE of Louisiana.
    No. 2005-KH-1957.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re McDonald, Antonio T.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 358315; to the Court of Appeal, First Circuit, No. 2004-KA-1970.

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. Earlie MATTOX v. STATE of Louisiana.
    No. 2005-KH-1958.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Mattox, Earlie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 367-109; to the Court of Appeal, Fourth Circuit, No. 2005-K-0168.

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


text:
    STATE ex rel. Nathaniel WAKER v. STATE of Louisiana.
    No. 2005-KH-1961.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Waker, Nathaniel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 325-764; to the Court of Appeal, Fourth Circuit, No. 2005-K-0583.

Denied.


text:
    STATE ex rel. Samuel MURRAY v. STATE of Louisiana.
    No. 2005-KH-1969.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Murray, Samuel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 429-147; to the Court of Appeal, Fourth Circuit, No. 2005-K-0684.

Denied.


text:
    STATE ex rel. Gerald T. DAISY v. STATE of Louisiana.
    No. 2005-KH-1977.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Daisy, Gerald T.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 86-2189; to the Court of Appeal, Fifth Circuit, No. 2005-KH-0492.

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


text:
    STATE ex rel. Tirrel WELLS v. STATE of Louisiana.
    No. 2005-KH-1979.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Wells, Tirrell;- — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish-of Jefferson, 24th Judicial District Court Div. N, No. 96-968; to the Court of Appeal, Fifth Circuit, No. 05-KH-599.

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. George Stanley ROLAND v. STATE of Louisiana.
    No. 2005-KH-2001.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Roland, George Stanley; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div.- G, No. 217, 036.

Denied. Moot. The Clerk of Court has acted.


text:
    STATE ex rel. Gregory T. GREEN v. STATE of Louisiana.
    No. 2005-KH-2008.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Green, Gregory T.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 2-86-294; to the Court of Appeal, First Circuit, No. 2005 KW 0594.

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. Keith LIPTON v. STATE of Louisiana.
    No. 2005-KH-2009.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Lipton, Keith; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 00-1751; to the Court of Appeal, Fifth Circuit, No. 05-KH-264.

Denied.


text:
    STATE ex rel. Herbert FUSELIER v. STATE of Louisiana.
    No. 2005-KH-2010.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Fuselier, Herbert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 4552-90; to the Court of Appeal, Third Circuit, No. KH 05-00626.

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


text:
    STATE ex rel. Robbie D. STEWART v. STATE of Louisiana.
    No. 2005-KH-2011.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Stewart, Robbie D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 268-920; to the Court of Appeal, Third Circuit, No. KH 05-00512.

Denied.


text:
    STATE ex rel. Gary Dale SEARCY v. STATE of Louisiana.
    No. 2005-KH-2012.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Searcy, Gary Dale; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 01-F0940; to the Court of Appeal, Second Circuit, No. 40291-KH.

Denied.


text:
    STATE ex rel. William JOHNSON, Jr. v. STATE of Louisiana.
    No. 2005-KH-2013.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Johnson, William Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. F, Nos. 97-146621, 02-149319, 02-159319; to the Court of Appeal, First Circuit, No. 2005 KW 0537.

Denied.


text:
    STATE ex rel. Darryl EVERSON v. STATE of Louisiana.
    No. 2005-KH-2029.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Everson, Darryl; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 91-4926; to the Court of Appeal, Fifth Circuit, No. 05-KH-617.

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. Michael MOSLEY v. STATE of Louisiana.
    No. 2005-KH-2032.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Mosley, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 433-075; to the Court of Appeal, Fourth Circuit, No. 2005-K-0841.

Denied.


text:
    STATE ex rel. William L. BANKS v. STATE of Louisiana.
    No. 2005-KH-2033.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Banks, William L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Union, 3rd Judicial District Court Div. C, No. 30,430; to the Court of Appeal, Second Circuit, No. 40302-KH.

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


text:
    STATE ex rel. Ricky CARTHAN v. STATE of Louisiana.
    No. 2005-KH-2034.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Carthan, Ricky;- — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 18,892; to the Court of Appeal, First Circuit, No. 2005 KW 0716.

Denied.


text:
    STATE ex rel. Tommy BORDELON v. STATE of Louisiana.
    No. 2005-KH-2080.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Bordelon, Tommy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 98-4883; to the Court of Appeal, Fifth Circuit, No. 05-KH-643.

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; State v. McKinney, 406 So.2d 160, 161 (La.1981).


text:
    STATE of Louisiana v. David Lee LEGER.
    No. 2005-K-2263.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Leger, David Lee; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 66512-F; to the Court of Appeal, Third Circuit, No. KA 04-1467.

Denied.


text:
    Roy LAMBERT, et al. v. STATE of Louisiana, et al. Bayou D’ Arbonne Lake Watershed District.
    No. 2005-C-2310.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Louisiana State of et al.; Wildlife and Fisheries Department of; Transportation and Development Department of; Natural Resources Department of; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Union, 3rd Judicial District Court Div. B, No. 37,812; to the Court of Appeal, Second Circuit, No. 40,170-CA.

Denied. Adequate remedy on appeal.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Roy LAMBERT, et al. v. STATE of Louisiana, et al. Bayou D’ Arbonne Lake Watershed District.
    No. 2005-C-2311.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Bayou D’Arbonne Lake Water Shed District; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Union, 3rd Judicial District Court Div. B, No. 37,812; to the Court of Appeal, Second Circuit, No. 40,170-CA.

Denied. Adequate remedy on appeal.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Stephen C. SMITH v. TIDEWATER INC.
    No. 2005-C-2361.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Tidewater Inc.; Tidewater Marine L.L.C.; TT Boat Corporation; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, No. 00-8647; to the Court of Appeal, Fourth Circuit, No. 2004-CA-0195.

Denied.

VICTORY, J., would grant.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    Ronnie PUJOE v. STOWE-WOODARD.
    No. 2005-C-2365.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Stowe-Woodard; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation Department of Labor Dist. 1-E, No. 04-01868; to the Court of Appeal, Second Circuit, No. 40,044-WCA.

Denied.


text:
    STATE of Louisiana v. Robert Paul GARRISON.
    No. 2005-K-2388.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Garrison, Robert Paul; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. C, No. 50776; to the Court of Appeal, Second Circuit, No. 39,820-KA.

Denied.


text:
    John W. CUNNINGHAM v. CITY OF SHREVEPORT.
    No. 2005-C-2391.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Shreveport City of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 475,941; to the Court of Appeal, Second Circuit, No. 39,873-CA.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Reagan GATTI.
    No. 2005-K-2394.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Gatti, Reagan; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. A, No. 120,143; to the Court of Appeal, Second Circuit, No. 39,-833.

Denied.


text:
    SUCCESSION OF Patricia Lee Davis CRAWFORD.
    No. 2005-C-2407.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Crawford, Garrett; — Other; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. H, No. 12324; to the Court of Appeal, First Circuit, No. 2004 CA 0977.

Denied.

JOHNSON, J., would grant.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Phillip SKIPPER.
    No. 2005-K-2418.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Skipper, Phillip; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 03-CR-787; to the Court of Appeal, First Circuit, No. 2004 KA 2621.

Denied.


text:
    STATE of Louisiana v. Legorgy Earl DAVIS.
    No. 2005-K-2419.
    Supreme Court of Louisiana.
    April 17, 2006.
   In re Legorgy Earl Davis; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 232,889; to the Court of Appeal, Second Circuit, No. 40,382-KA.

Denied.