text:
    Barry G. COLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3042.
    District Court of Appeal of Florida, Second District.
    March 19, 2008.
   CANADY, Judge.

Barry G. Colbert appeals the postconviction court’s order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850. We affirm without comment the posteonviction court’s denial of the second portion of claim one, the first portion of claim two, the second portion of claim three, the first portion of claim nine, and claims four, five, six, seven, eight, and ten.

In the first portion of claim one, Colbert asserted that counsel was ineffective for failing to file pretrial motions. This claim contains vague allegations concerning the purported need for trial counsel to have Colbert evaluated regarding his inability to recall events of the charged incident.

In the second portion of claim two and again in the first portion of claim three, Colbert alleged that trial counsel was ineffective by filing a motion to continue but failing to follow up on it. More specifically, Colbert alleged that there was no record evidence that a hearing was held on the motion to continue or that the trial court ever ruled on it and, thus, that trial counsel provided deficient performance by failing to adequately prepare for trial and by taking Colbert “out of the loop in managing the defense strategy.” Notably, Colbert failed to allege how he was prejudiced.

In the second portion of claim nine, Colbert alleged that trial counsel’s performance was deficient because there was no defense strategy and because counsel permitted misrepresentations to be entered into the record. Yet, Colbert again failed to allege how he was prejudiced or what actions counsel should have taken.

The postconviction court summarily denied the first portion of claim one as facially insufficient but did not specifically address the second portion of claim two, the first portion of claim three, or the second portion of claim nine. We agree that the first portion of claim one was facially insufficient; we likewise conclude that the claims made in the second portion of claim two, the first portion of claim three, and the second portion of claim nine are facially insufficient.

In summarily denying the first portion of claim one, the postconviction court was without the benefit of Spera v. State, 971 So.2d 754 (Fla.2007), in which the Florida Supreme Court held that “in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected.” Id. at 755; see also Bryant v. State, 901 So.2d 810, 819 (Fla.2005) (“[D]ue process demands that some reasonable opportunity be given to defendants who make good faith efforts to file their claims in a timely manner and whose failure to comply with the rule is more a matter of form than substance.”).

Nothing in the record before this court demonstrates that Mr. Colbert could not correct the deficiencies in pleading if given the opportunity to amend the facially insufficient claims. Thus, in accordance with Spera, we reverse the postconviction court’s denial of the first portion of claim one, the second portion of claim two, the first portion of claim three, and the second portion of claim nine.

Affirmed in part; reversed in part; and remanded.

LaROSE, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge. ANDREWS, HORACE A., Associate Judge,

license: Public Domain

text:
    David DEUTSCH, Appellant, v. GLOBAL FINANCIAL SERVICES, LLC; First Select Corporation; Effie M. Swanson, a/k/a E. Swanson Mabel Hildegard Daniels; Southern International Corporation; William Fleming and Mary A. Fleming, individually and as husband and wife; James W. Dickinson; Clyde N. Best and Rita Best, individually and as husband and wife; and J. Hoffmans, Appellees.
    No. 2D05-6170.
    District Court of Appeal of Florida, Second District.
    March 19, 2008.
    Troy Nader, North Miami Beach, for Appellant.
    No appearance for Appellees.
   SILBERMAN, Judge.

David Deutsch appeals a Final Summary Judgment Quieting Title in favor of Global Financial Services, LLC. Because the record reflects that genuine issues of material fact remain in dispute, we reverse and remand for further proceedings.

Global filed suit to quiet title to several parcels of real property located in Lee County. Global alleged that tax certificates had been issued for the properties due to the nonpayment of taxes. It also alleged that after appropriate notice, the properties were sold and tax deeds were issued. Global claimed ownership of the properties by virtue of the tax deeds.

Deutsch, appearing pro se, answered the complaint and denied Global’s allegations. He contended that Global’s tax deed as to one of the properties, lot 10, should be voided because lot 10 was wrongfully sold by tax deed. He claimed that his address was known by the Lee County Tax Collector and the Lee County Clerk of Court and that he “never received any notice of any kind with regard to the subject property.” He stated that he would have redeemed lot 10 had he been properly noticed of the impending tax sale and that he was entitled to fee simple ownership of that lot.

Global filed a motion for summary judgment and a supporting affidavit by its managing member. The affiant merely asserted that the case was a quiet title action to six parcels of property in Lee County and that the facts alleged in the complaint were true and correct. Neither the affidavit nor any other record documents countered the statements contained in Deutsch’s answer.

An attorney then appeared in the trial court on Deutsch’s behalf and filed Deutsch’s affidavit in opposition to the motion for summary judgment. In the affidavit, Deutsch restated the assertions contained in his answer and provided additional information. He stated that he had mailed an appropriate change of address form to the property appraiser’s office, giving notice of his address change. He stated that Lee County’s tax collector and the clerk of the court had his proper address approximately four months prior to the sale of lot 10 and that the “tax assessor” also knew his correct address. He averred that he never received any notice concerning lot 10 and that lot 10 was wrongfully sold to Global. He also stated that he had the financial ability at that time to pay the taxes and that he would have redeemed the property if he had been properly noticed of the impending tax sale.

The trial court conducted a brief hearing on Global’s motion for summary judgment. Mr. Deutsch’s counsel stated that Deutsch had changed his address with the tax collector concerning a different property and that the tax collector acknowledged having received the new address. He also stated that the notice of tax sale concerning lot 10 went to an old address. Counsel then argued that “the tax collector knew or should have known that the property owner’s address had changed” and that “the tax collector has not done what it needed to do to send out proper notice. Therefore, summary judgment should not be entered for title.” Counsel cited to Rosado v. Vosilla, 909 So.2d 505 (Fla. 5th DCA 2005) (en banc), approved, 944 So.2d 289 (Fla.2006).

Global, through its counsel, stated that Deutsch had sent a letter to pay off a tax deed on another property that he owns and that he had not corresponded with the tax collector as to lot 10. Counsel argued, “Are they supposed to now, every time they get a letter, cross-reference these properties?” He indicated that lot 10 never had a corrected address. Deutsch’s counsel responded that the issue was “whether the tax collector knew or should have known” Deutsch’s correct mailing address.

The trial court granted summary judgment, finding that the clerk of the court and the county tax collector “did not have notice nor should they have known that the Defendant, David Deutsch changed his address to the subject property.”

We review a summary judgment de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr. Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). The moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The moving party bears the burden of proving the nonexistence of issues of material fact, and every possible inference must be viewed in favor of the party opposing the summary judgment. Githens, 928 So.2d at 1274. The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof. Id. As we stated in Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000), “the merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.” Further, the moving party has the burden to refute any affirmative defenses or to establish their legal insufficiency. Morroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005).

Section 197.522, Florida Statutes (2003), is titled, “Notice to owner when application for tax deed is made.” When such an application is made, section 197.522(l)(a) requires the clerk of the circuit court to give notice by certified mail to those persons listed in the statement provided by the tax collector pursuant to section 197.502(4). However, if no address is listed in the tax collector’s statement, then notice is not required. § 197.522(l)(a).

Section 197.502(4) requires the tax collector to provide a statement to the clerk indicating, among other things, those persons who are to be notified prior to the sale of the property. Persons entitled to notice include the legal titleholder of record and any person to whom the property was assessed on the tax roll for the year in which the property was last assessed. Id. Section 197.502(4)(a) describes the following legal titleholders of record who are entitled to notice:

Any legal titleholder of record if the address of the owner appears on the record of conveyance of the lands to the owner. However, if the legal titleholder of record is the same as the person to whom the property was assessed on the tax roll for the year in which the property was last assessed, then the notice may only be mailed to the address of the legal titleholder as it appears on the latest assessment roll.

In Rosado, the Fifth District considered due process requirements relating to notice before the taking of property. The court stated that the key issue was whether notice to the Rosados, the property owners, was reasonably calculated under all of the circumstances to apprise them “of the tax deed sale and to afford them an opportunity to present their objections.” 909 So.2d at 511.

The Fifth District described the factual findings that the trial court made: the Rosados had notified the tax collector and the clerk of court of their change of address prior to the clerk sending out notice of the tax sale; neither the tax collector nor the clerk updated the Rosados’ address in the assessment roll or the clerk’s records; the Rosados did not receive notice of the application for a tax deed or notice of the tax deed sale; and the taxing agencies were at fault for the Rosados’ failure to receive notice. The Fifth District concluded that the statutory notice that had been given “was not reasonably calculated to apprise the Rosados of the impending tax deed sale where the tax collector and the clerk knew or should have known that the address listed on the tax roll was incorrect.” Id.

The Florida Supreme Court approved Rosado and the court described the issue as follows:

[Wlhether notice to a property owner that the property is scheduled for a tax deed sale, sent in compliance with section 197.522(1), Florida Statutes (2000), nonetheless violates due process of law when the taxing authority has received a change of address from the property owner but sends the tax sale notice to the owner’s former address.

Vosilla v. Rosado, 944 So.2d at 289, 291 (Fla.2006). The court concluded that under such circumstances, “the notice was not reasonably calculated to apprise the owners of the tax deed sale, which is the due process test.” Id.

Here, Global did not carry its burden to obtain summary judgment. Deutsch stated in his affidavit that he submitted his change of address form well in advance of the sale of lot 10 to Global and that the tax collector and clerk had his proper address prior to the sale. Global’s counsel argued to the trial court that Deutsch’s notice of address change was sent regarding a different property and was not sufficient as to lot 10. However, Global did not present evidence establishing these contentions, and counsel’s argument is not evidence. See Bon Secours-Maria Manor Nursing Care Ctr., Inc. v. Seaman, 959 So.2d 774, 778 (Fla. 2d DCA 2007). Notably, the record contains no evidence from the tax collector’s office, the clerk’s office, or any other source contradicting Deutsch’s statements. Therefore, because Global failed to carry its burden in order to obtain summary judgment, we reverse the Final Summary Judgment Quieting Title and remand for further proceedings.

Reversed and remanded.

WHATLEY, J., Concurs.

ANDREWS, HORACE A., Associate Judge, Concurs with opinion.

ANDREWS, HORACE A., Associate Judge,

Concurring.

I concur that there is a dispute of material fact which precludes the award of summary judgment in this case, but write to express a different focus. My focus is on the issue of due process. Due process in a case like this requires a reasonable effort by the taxing authority to get actual notice to the citizen of the impending tax sale of his property.

The tax deed was issued by the clerk of the circuit court to Global on October 5, 2004. The deed recites “due notice of sale having been published as required by law” and reflects the sale of the property by Lee County to Global. At the hearing on the motion for summary judgment the record contained the affidavit of Deutsch stating that he never received the statutory notice. Other than the recitation in the deed, there is nothing in the record to show that the clerk attempted to notify Deutsch at any address of the tax sale.

On June 14, 2004, Deutsch redeemed a tax certificate on another parcel of property he owned, notifying the Lee County tax collector to “mail the receipt to me” at an address in Miami, Florida. The county tax collector mailed a redemption receipt dated June 17, 2004, to Deutsch at the Miami address. Further, Deutsch stated in an affidavit filed with the trial court that he “informed the property appraiser’s office” of his change of address by filing a “change of address form.” The form is not in the appeal record, but the affidavit is uncontradieted evidence. Further, there is no evidence in the record as to procedures for updating the tax roll employed by the appraiser’s office upon its receipt of a change of address form or a redemption letter relating to other property such as that sent by Deutsch.

In Vosilla v. Rosado, 944 So.2d 289 (Fla.2006). The Florida Supreme Court held that notice of a tax deed sale which was sent to a property owner’s old address did not comport with the requirements of due process when the taxing authorities “knew or reasonably should have known” that the address listed on the tax rolls was incorrect. Id. at 300. Further, in Delta Property Management, Inc. v. Profile Investments, Inc., 875 So.2d 443, 448 (Fla.2004), the court stated, “[w]hile the clerk should use the tax collector’s statement when preparing the tax sale notices, circumstances may warrant some additional action by the clerk.” The following language from that case is appropriate here:

The importance of notice when a person may be deprived of an interest in real property cannot be overemphasized. The United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), stated:
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance....
But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 314-15, 70 S.Ct. 652, (citations omitted). Years later, the Supreme Court further elaborated on this due process requirement when it said, “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)

Id. at 447.

In this summary judgment case, the trial court made no reference to what “additional action” the Lee County clerk may have taken in order to satisfy the due process requirements described by the United States and Florida Supreme Courts. Any issue of the reasonableness of certain behavior or as to what level of care was actually performed are ordinarily evidentiary questions for determination by the trier of fact. Looking at what was before the trial court at the time the order was entered, there is an inadequate record to support its finding that the “Clerk of Court or the County Tax Collector did not have notice nor should they have known that ... Deutsch changed his address to the subject property.” This resulted in a deprivation of due process.

In Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), the Court stated:

We do not think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed.

Id. at 229,126 S.Ct. 1708.

Although the State may have made a reasonable calculation of how to reach Jones, it had good reason to suspect when the notice was returned that Jones was “no better off than if the notice had never been sent.”

Id. at 230,126 S.Ct. 1708.

Mr. Jones should have been more diligent with respect to his property, no question. People must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking.
[W]e conclude the State should have taken additional reasonable steps to notify Jones, if practicable to do so. The question remains whether there were any such available steps.

Id. at 234,126 S.Ct. 1708.

Here, the trial court’s sole finding that the “Clerk of Court or the County Tax Collector did not have notice nor should they have known that ... Deutsch changed his address,” is unsupported by competent, substantial evidence and there was no evidence of what steps the clerk or the tax collector could have reasonably taken to ascertain Deutsch’s correct address under all the circumstances here.

Under Vosilla, 944 So.2d at 295, there must be sufficient facts in the record to permit a determination as to “whether the notice was reasonably calculated to apprise [Deutsch] of the impending tax sale.” If a reasonable effort by the clerk or the tax collector would have produced Deutsch’s new address, then due process required such reasonable effort. Whether or not an effort is reasonable must be ascertained by the trial court according to the standards established in the cases cited herein. Without a finding based on record evidence on this due process issue summary judgment is not appropriate.

I cannot say absent the facts in the record what a reasonable effort may have been in this case, but I am guided by the Supreme Court’s ultimate conclusion in Jones, 547 U.S. at 288, 126 S.Ct. 1708: “[W]e conclude, at the end of the day, that someone who actually wanted to alert [the property owner] that he was in danger of losing his house would do more when the attempted notice letter was returned unclaimed, and there was more that reasonably could be done.” The trial court’s “finding” here is contradicted by Deutsch’s affidavit and the documents he put into the record; Consequently there is a genuine issue as to a material fact and Global is not entitled to judgment as a matter of law.

      . The supreme court’s opinion, approving the Fifth District’s decision, was issued approximately one year after the summary judgment hearing in this case.


author: CANADY, Judge.

text:
    Michael S. HORTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1786.
    District Court of Appeal of Florida, Second District.
    March 19, 2008.
   CANADY, Judge.

Michael S. Horton appeals the denial of his sworn motion for postconviction relief which was filed within two years after his judgment and sentence became final. We reverse.

In his motion, Horton presented a claim based on circumstances that differ in no material respect from those presented in Eblin v. State, 743 So.2d 94 (Fla. 2d DCA 1999). In Eblin, the postconviction motion was predicated on events at a sentencing hearing where counsel for Eblin requested that his sentences for three burglary offenses be imposed concurrently with a sentence to be imposed in a pending proceeding for the revocation of Ebliris community control. The sentencing court, however, “did not believe it had the authority” to order that the sentences be run concurrently with the impending sentence upon revocation of community control. Id. at 94. Concluding that the sentencing court’s belief was in error, the Eblin court stated that “[t]he record establishes that if the trial court had correctly understood the parameters of its authority, it would have ordered Mr. Ebliris burglary and control release sentences to be served concurrently.” Id. at 95. The court therefore reversed the denial of Ebliris motion for postconviction relief and remanded to the postconviction court “for it to amend” Ebliris sentences accordingly. Id.; see also Kirkland v. State, 633 So.2d 1138 (Fla. 2d DCA 1994); Rosario v. State, 762 So.2d 581 (Fla. 3d DCA 2000); Bruce v. State, 679 So.2d 45 (Fla. 3d DCA 1996).

In the instant case, the State has conceded that this court should rule in accordance with Eblin. Based on the authority of Eblin, we reverse the order denying Horton’s motion and remand for the post-conviction court to amend Horton’s judgment and sentence to provide that his sentence run concurrently with the sentence imposed upon the revocation of Horton’s parole.

Reversed and remanded.

ALTENBERND and VILLANTI, JJ., concur.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Melvin GLENN, Appellee.
    No. 3D07-2005.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

This is a State appeal of a downward departure sentence. We reverse.

Defendant-appellee Melvin Glenn was on probation in Miami-Dade County Circuit Court case number 06-37680 (“the 2006 case”), for aggravated stalking and other offenses. He was charged in Miami-Dade County Circuit Court case number 07-19014 (“the 2007 case”) with grand theft of an automobile. The grand theft charge also provided the basis for an affidavit of violation of probation in the 2006 case.

Over State objection, the trial court offered, and the defendant accepted, a plea agreement whereby the defendant would plead guilty in both cases and the defendant would be sentenced to a term of 180 days in the county jail, with credit for time previously served. The State objected, among other things, that the sentence was below the guidelines minimum. No reasons were offered for the downward departure sentence. The trial court sentenced the defendant pursuant to the agreement. The State has appealed in the 2007 case only.

The State argues that the sentencing order must be reversed because there were no downward departure reasons. The defense concedes that the State’s position is well taken. See State v. Brownell, 922 So.2d 244, 245 (Fla. 3d DCA 2006); State v. Roberts, 824 So.2d 908 (Fla. 3d DCA 2002); State v. Paulk, 813 So.2d 152, 154 (Fla. 3d DCA 2002). We therefore reverse the sentencing order. On remand the defendant must be given the option of either withdrawing his plea or being resen-tenced within the sentencing guidelines. Franquiz v. State, 682 So.2d 536, 538 (Fla.1996).

Reversed and remanded for further proceedings consistent herewith.


author: STONE, J.

text:
    MANZINI & ASSOCIATES, P.A., Appellant, v. BROWARD SHERIFF’S OFFICE and Sonya Wimberly, Appellees.
    No. 4D07-1055.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Nicolas A. Manzini of Manzini & Associates, P.A., Miami, for appellant.
    Carmen Rodriguez of Law Offices of Carmen Rodriguez, P.A., Miami, for Ap-pellee-Broward Sheriffs Office.
   ON MOTION FOR REHEARING AND WRITTEN OPINION

STONE, J.

We deny Manzini’s motion for rehearing, but withdraw our opinion of December 19, 2007, and substitute the following:

We affirm the final judgment dismissing Manzini’s attorney’s fee claims against his former client. An attorney who is employed under a contingency fee contract and discharged prior to the occurrence of the contingency is limited to a quantum meruit recovery. Here, the plaintiff/appellee, Wimberly, discharged Manzini as her counsel in a civil rights action when she chose to settle and release all of her claims against the Broward Sheriffs Office (BSO), using another attorney, in a worker’s compensation case.

Upon learning of the settlement, Manzi-ni filed a motion to set aside the agreement and the release between Wimberly and BSO. Manzini sought leave of court to continue with the civil rights action in Wimberly’s name in order to protect his fee claims against BSO under section 760.11, Florida Statutes.

The second attorney testified that at the time of the settlement, he had no information indicating that there was another case pending. The trial court found that none of the attorneys in this case were involved in an attempt to defraud Manzini of his fee. Rather, “[t]he only person who’s actions caused this were Ms. Wimberly’s[,] whether intentionally or by perhaps we will call it willful blindness for lack of a better description. But she is the only one that caused the problem that we have today.” Accordingly, the trial court denied Manzi-ni’s motion to sever the agreements and granted BSO’s motion to dismiss.

Manzini relies solely on Mabry v. Knabb, 151 Fla. 432, 10 So.2d 330, 337 (1942), for the following proposition:

[W]here the client makes a fraudulent or collusive settlement intended to deprive the attorney of his compensation or cost fees, the attorney will be permitted to proceed with the suit in the client’s name for the purpose of protecting his interests.

In Mabry, the supreme court allowed a lessor’s attorneys to proceed with the case in the name of their client to ascertain what sum, if any, was owed for legal fees and to recover that amount from a lessee who had entered into a collusive settlement with the lessor designed to defraud the attorneys. Id. at 336-37.

Mabry is distinguishable, as the parties in that ease made a collusive settlement. Indeed, the supreme court emphasized that the opposite party in that case (the lessee) had full notice of the status of the attorneys for the lessor. 10 So.2d at 336. The court held:

The parties must be assumed to have had the intent to effectuate the result which all parties knew, or should have known, would flow from their conduct. Therefore, it must be assumed that both the [lessor] and [lessee] when they made the settlement between themselves consummated the same pursuant to the intent of both parties to deprive the attorneys of their vested rights in the premises.

Id.

Here, however, the trial court found that none of the attorneys handling this case were involved in an attempt to defraud Manzini of his fee. Rather, the only person whose intentional actions caused the problem was the client. The record supports these findings.

Sentco v. McCulloh, 84 So.2d 498 (Fla.1955), also dealt with this issue. In Sent-co, the plaintiffs counsel brought an action to continue prosecuting the case for the purpose of recovering his attorney’s fee, notwithstanding a settlement agreement between the parties. As here, the plaintiff entered into a settlement and release agreement with the defendant. The supreme court set forth the relevant facts as follows:

At the hearing on the suggestion of defendant’s counsel that the suit should be dismissed because of the settlement agreement, counsel for plaintiff opposed the dismissal of the suit on the ground that the settlement agreement was fraudulently made to deprive plaintiffs counsel of a substantial attorneys’ fee and on the further ground that ‘plaintiffs counsel are entitled to a fee assessed against defendants as damages for defendants’ willful and deliberate acts of unfair competition.’ Their motion to continue the prosecution of the cause for the purpose of recovering their attorneys’ fee was denied, and the cause dismissed. This appeal by plaintiffs counsel, in the name of the plaintiff, followed. The sole point for determination here is whether the lower court erred in declining to continue the prosecution of the suit, as requested by plaintiffs counsel. We find no error here.

Id. at 499.

We recognize, however, that Sentco is distinguishable in that the settlement offer was actually communicated through the attorney, and when the plaintiff decided to accept the settlement offer, the plaintiffs president advised the attorneys accordingly. We also note that a successful worker’s compensation claim bars the employee from pursuing a damages suit against the employer. See Lowry v. Logan, 650 So.2d 653 (Fla. 1st DCA 1995).

Despite the foregoing, Manzini is not without remedy, as the discharged attorney may still recover a reasonable fee from the client for the work performed by way of quantum meruit. See Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982).

POLEN and MAY, JJ., concur.


author: WARNER, J.

text:
    Tony Anthony PICKLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3028.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.

      Ruth M. Martinez-Estes, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Tony Pickles appeals a judgment of conviction and sentence for trespass, burglary of a dwelling, and petit theft. He claims that the trial court denied him due process by failing to conduct a competency examination. Under the facts of this case, we conclude that no due process violation has occurred. We therefore affirm.

The state charged Pickles in 2004 with seven counts of burglary of a dwelling and grand theft. Because of concerns about Pickles’s competency, in March of 2005 the trial court ordered a competency evaluation. After one examiner, Dr. Strauss, deemed Pickles competent, Pickles stipulated to competency, allowing the trial on counts two through five to go forward. The jury returned a guilty verdict and the court imposed a life sentence in September of 2005. We affirmed his convictions and sentence without opinion. Pickles v. State, 965 So.2d 144 (Fla. 4th DCA 2007).

On February 14, 2006, the court began proceedings on the remaining counts. Potential jurors were brought in, but before the attorneys began voir dire, Pickles had a violent outburst, and deputies had to restrain him. Pickles demanded a psychological evaluation. Following these outbursts the judge offered either to have him bound and gagged in front of the jury or to place him in a separate room where he could monitor the trial but not be heard. Pickles kept cursing and acting out, and the judge determined that he should be placed in a separate room with closed circuit monitoring of the courtroom.

In the midst of these rantings, defense counsel moved to appoint two doctors to conduct a competency evaluation. The attorney explained that since the public defender’s office assigned him to Pickles’s case, “I have been unable to communicate with Mr. Pickles; he’s either been unable or unwilling to assist in his own defense, and I can’t determine which it is, because he won’t communicate with me.” Defense counsel raised the competency issue because of the communication barrier and because of Pickles’s courtroom behavior. The prosecutor argued that Pickles had already stipulated to competency.

Although the judge expressed the opinion that Pickles was acting out deliberately to disrupt the justice system, the judge noted that the defendant had raised the issue, and the court would appoint experts to examine Pickles. Subsequently, the court entered written orders, pursuant to Florida Rule of Criminal Procedure 3.210(b), appointing two experts to examine Pickles and determine whether he was competent to stand trial. Both experts found him competent to stand trial.

Defense counsel moved for a competency hearing arguing that the court must make a finding on competency in light of the reports, defendant’s courtroom behavior, and defense counsel’s inability to communicate with defendant. The court responded that defense counsel must point to “something that would suggest that the two experts, who say [Pickles] is competent to proceed and that [Pickles] is malingering, will change their testimony or will ... give testimony that is inconsistent with their filed reports.” Defense counsel did not respond or proffer any proposed evidence he would offer to counter the reports. Accordingly, based on the court’s observations of Pickles, who had appeared before it thirty-five times, and the conclusions reached by the appointed examiners, the court concluded that Pickles was competent to proceed without the benefit of a further evidentiary hearing.

Throughout the trial, Pickles refused to communicate with his attorneys or wear the headphones provided to him in the holding cell. Nevertheless, his attorneys attempted to consult with Pickles at various points throughout the proceedings. Pickles was constantly “yelling and screaming,” repeatedly refusing to speak with his attorneys who, according to the judge, were “doing everything in [their] power to have [the] client participate.”

Defense counsel renewed his motion for a competency hearing noting, “What I have observed on the video ... screen, ... as this trial has been going on, is Mr. Pickles repeatedly smacking his own head against a ... glass pane and screaming at the top of his lungs.” When counsel attempted to speak with Pickles “he went crazy and started screaming and yelling at the top of his lungs, calling me an assortment of names.” The court denied the motion stressing that it “concurred] with the experts, that [Pickles] is malingering.”

Pickles decided to exercise his right to take the stand in his own defense. Pickles’s attorney again moved for a competency hearing. He reiterated the disruptive behavior that Pickles had exhibited and his failure to communicate. The court asked whether the defense had talked to one of the experts and discovered a changed opinion. Counsel admitted that he had not spoken with the experts and simply stated that Pickles was not displaying appropriate courtroom behavior. The court denied the request, concluding that there was no reasonable ground to believe that Pickles was incompetent but was merely faking it. Pickles took the stand and testified without incident.

The jury convicted Pickles, finding him guilty in some instances of lesser offenses of the crimes charged. The court sentenced him to fifteen years in prison, concurrent with his prior sentences. He appeals.

Pickles argues that the trial court erred in failing to conduct a competency hearing in light of his behavior throughout the trial. We review determinations of the trial court not to hold a competency hearing under an abuse of discretion standard. See Delisa v. State, 910 So.2d 418, 420 (Fla. 4th DCA 2005).

“To hold criminal proceedings when a defendant is mentally incompetent would deny that defendant his constitutional right to a fair trial.” Kelly v. State, 797 So.2d 1278, 1279 (Fla. 4th DCA 2001). In Hill v. State, the supreme court held that “the appropriate test for determining competency,” 473 So.2d 1253, 1257 (Fla. 1985), is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.” Id. (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (I960)) (emphasis omitted). If the application of this test results in “a reasonable ground to believe that the defendant is not mentally competent to proceed,” the trial court’s failure to conduct a competency hearing and order psychological evaluations under rule 3.210(b) “constitutes an abuse of discretion.” Burns v. State, 884 So.2d 1010, 1013 (Fla. 4th DCA 2004). In addition to applying the Hill test, Florida case law directs “trial court[s][to] consider all the circumstances,” Calloway v. State, 651 So.2d 752, 754 (Fla. 1st DCA 1995), keeping in mind that “[t]here are no ‘fixed or immutable signs that always’ require a competency hearing.” Id. (quoting Scott v. State, 420 So.2d 595, 597 (Fla.1982)).

Florida Rule of Criminal Procedure 3.210(b) establishes the procedure when the competency of the defendant becomes an issue. It provides:

If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and shall order the defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of the hearing. ...

When counsel moves for a competency examination, “[a] written motion for the examination made by counsel for the defendant shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is incompetent to proceed.” Fla. R.Crim. P. 3.210(b)(1). Here, counsel never made a written motion and thus did not certify in good faith that he believed that Pickles was incompetent to proceed. His “reasonable grounds” consisted of Pickles’s behavior in the courtroom, which the judge also witnessed, and Pickles’s failure to communicate with counsel.

The purpose of a competency hearing is to resolve factual disputes “arising from different expert opinions.” Boyd v. State, 910 So.2d 167, 187 (Fla.2005) (emphasis added). Here, however, all of the expert opinions were consistent.

In this case Pickles was first determined competent by an expert in 2005. As a result, he stipulated to his competency for purposes of his first trial, which resulted in a conviction and life sentence. The court noted that after that sentence, the defendant began his disruptive behavior and refusal to cooperate with his lawyers.

In Boyd, the supreme court noted the effect of a determination of competency on further proceedings:

Once a defendant is determined competent to stand trial, a presumption of competence attaches to the defendant in later proceedings. However, another competency hearing is required if a bona fide question as to the defendant’s competency has been raised. We will affirm the trial court’s decision absent an abuse of discretion.

Id. (citations omitted).

Although the trial court expressed the opinion that Pickles was competent, it acceded to defense counsel’s request to obtain another competency evaluation prior to the start of the second trial. When the competency reports confirmed his competency, the trial court did not hold an evi-dentiary hearing. The court reviewed the reports and had ample occasion to observe the defendant’s behavior in the thirty-five appearances he had made before this judge, as well as multiple letters that Pickles would write to the judge, which the judge characterized as intelligent, articulate, and cogent. Three experts had all opined that the defendant was competent but merely malingering. There was no dispute between any of the experts.

An evidentiary hearing is required if it “reasonably appears necessary.” Rolle v. State, 493 So.2d 1089, 1090 (Fla. 4th DCA 1986) (emphasis omitted). The trial court did not abuse its discretion in determining that an evidentiary hearing did not appear reasonably necessary in light of the three consistent expert reports finding Pickles competent to stand trial. Although Pickles engaged in disruptive behavior and refused to communicate with his attorneys, the court had dealt with this defendant longer than his own attorney and had observed his manipulative behavior. The court also acknowledged Pickles’s intelligence and obvious understanding of the system. From this record we conclude that the defendant was not denied due process by the trial court’s refusal to conduct an evidentiary hearing.

Pickles also raises an issue regarding the sufficiency of the state’s DNA expert’s knowledge of the reliability of the crime lab’s DNA database. However, we conclude that this specific objection was not made at trial and thus not preserved for review.

For the foregoing reasons, we affirm the conviction and sentence.

FARMER and GROSS, JJ., concur.


text:
    Leonard ASKEW, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2574.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Richard I. Wennet, Judge; L.T. Case No. 05-2505 CFA02.

Affirmed. See State v. Weaver, 957 So.2d 586 (Fla.2007), quoting Reed v. State, 837 So.2d 366 (Fla.2002).

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


text:
    Glen KIRK, Appellant, v. TJ PALM BEACH ASSOCIATES LIMITED PARTNERSHIP d/b/a The Mall at Wellington Green, Appellee.
    No. 4D07-1262.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.

      Rosenthal & Levy, P.A., West Palm Beach and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    Candace Moss of Wadsworth, King & Huott, LLP, West Palm Beach, for appel-lee.
   PER CURIAM.

Plaintiff was injured while working for a sign company when a ladder slipped on an allegedly slippery floor. The parties agree that the plaintiff was a business invitee; however, the trial court granted defendant’s motion for summary judgment concluding that plaintiff had not presented any evidence from which a jury could find that the defendant had breached a duty to plaintiff.

It appears that the trial court failed to understand that the burden on motion for summary judgment was on the defendant to conclusively prove no genuine issue of material fact as to whether this floor was slippery, Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla.1999), and in this case the defendant did not sustain that burden. Although a jury could well find that plaintiff, who was placing an extension ladder on the floor and against the side of a wall, had as much knowledge of the slippery condition of the floor as the defendant, that merely raises the issue of comparative negligence. Fenster v. Publix Supermarkets, Inc., 785 So.2d 737 (Fla. 4th DCA 2001). Reversed.

KLEIN, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Johnnie CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1484.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2008.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Johnnie Cruz appeals a final order denying his rule 3.850 motion for postconviction relief after an evidentiary hearing. While the appeal was pending in this court, instead of filing a reply brief, defense counsel filed an emergency petition for writ of habeas corpus, arguing that Cruz is now entitled to immediate release. We reverse the order denying postconviction relief, transfer the habeas petition to the circuit court, and direct the trial court on remand to consider it expeditiously in light of Cruz’s apparent entitlement to immediate release from custody.

On September 6, 2001, the trial court sentenced Cruz to ten years as a habitual felony offender for burglary and grand theft. The trial court suspended all but four years of the sentence and the remainder was to be served on probation. As Cruz explains, this was a “true split sentence.” Gibson v. Fla. Dep’t of Corr., 885 So.2d 376, 381 (Fla.2004).

After serving his prison term, Cruz claims to have been released on or about July 2, 2005, to begin serving his probation. He was arrested for a technical violation on or about September 30, 2005, and the record indicates that on January 30, 2006, pursuant to a negotiated plea, the court sentenced Cruz to six years for each count, concurrently, with credit for all time served. The written sentence awarded him 121 days of jail credit for time incarcerated prior to the imposition of sentence. This appeal concerns Cruz’s prison credit. With respect to each count, the trial court checked the prison credit box on the sentence form, which provides, “It is further ordered that the defendant be allowed credit for all time previously served on this count in the Department of Corrections prior to resentencing.”

It is clear from the transcript of the plea and sentencing hearing that the state and the trial court agreed Cruz would receive credit against the six-year sentence for every day he had already spent in custody on this case. The trial court specifically stated: “My understanding [is] that you will get credit for every single day you have actually been in a facility, either county or state facility.” The sentencing judge calculated the jail time credit, but announced he was leaving the precise calculation of prison time credit to the Department of Corrections.

However, on Cruz’s arrival in prison, he was informed that, because he was now serving the six years of his previously suspended sentence, and because he had never previously served any of that time, he was not entitled to receive any credit for the approximately four years he had previously served on the non-suspended portion of his sentence. In the course of exhausting his administrative remedies, Cruz was advised to seek relief from the sentencing court.

Cruz filed a motion for postconviction relief, claiming defense counsel was ineffective for misadvising him as to the amount of time he would serve as a result of his plea — i.e., that he would receive credit against the six-year sentence for the time he spent in prison before beginning his probation — and he wished to withdraw his plea. In a separate ground, he sought judicial enforcement of his negotiated plea agreement. Following an evidentiary hearing, in which the state argued that counsel did not promise Cruz that the department would credit him with any specific number of days for time previously served, the trial court denied the motion.

On appeal, the state argues that Cruz received the sentence he bargained for: six years in prison, less the credit for any time he might have served. To the extent the department may have erred in refusing to give him credit for his prison time served, his proper remedy was a petition for writ of mandamus challenging the department’s denial of his administrative grievances.

However, it appears that the department correctly interpreted the sentencing documents which it received. See Moore v. Stephens, 804 So.2d 575 (Fla. 5th DCA) (reversing order granting mandamus petition seeking credit for time previously served, where defendant was sentenced following revocation of probation on true split sentence; after imposition of suspended portion of sentence, credit was not available for time served on unsuspended portion of split sentence), cause dismissed, 817 So.2d 850 (Fla.2002); Roberts v. State, 702 So.2d 239 (Fla. 2d DCA 1997) (affirming order denying motion for postconviction relief, seeking additional credit; where defendant received true split sentence of five years in prison followed by ten years of probation, he was not entitled to credit, against ten-year sentence imposed following probation violation, for time served or gain time awarded in connection with the five-year sentence).

According to Cruz, in order to effectuate the plea agreement, the trial court should have determined how much time he had served and should have sentenced him to a term equal to six years less that amount, instead of sentencing him to six years less credit for time served. But at sentencing, neither the parties nor the court apparently realized the impact which the law, as explained in opinions like Stephens and Roberts, would have on the calculation of his prison credit — effectively eliminating it.

Nevertheless, it is clear from the plea and sentencing transcript that all parties contemplated that Cruz would receive credit for the time he actually served on the unsuspended portion of his sentence. When that did not occur, he was entitled either to withdraw from the negotiated plea or to have its terms enforced. See generally Hunt v. State, 613 So.2d 893, 898 (Fla.1992) (providing that when an agreement with the defendant is not fulfilled, the defendant is entitled to its specific performance or to withdrawal of the defendant’s guilty plea) (citing Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). If Cruz has served the entire agreed-upon sentence, merely allowing him to withdraw from the plea agreement would be inadequate relief; he should be entitled to choose to have the agreement enforced by the trial court’s restructuring his sentence to give effect to the negotiated agreement.

This case is similar to Wallace v. State, 793 So.2d 78 (Fla. 2d DCA 2001) (where department forfeited gain-time that the trial court had awarded at sentencing, court treated defendant’s certiorari petition as a motion to enforce plea agreement and transferred the matter to sentencing judge to sentence defendant in a manner that would effectuate the intention of the plea agreement and would take into account the department’s cancellation of credit, or to allow the defendant to withdraw his plea); and Davis v. Singletary, 659 So.2d 1126 (Fla. 2d DCA 1995) (treating defendant’s mandamus petition as a motion to enforce the plea agreement and transferring it to the sentencing judge, to resentence the inmate in a manner that takes into account the effect of the department’s cancellation of credit or to allow the inmate to withdraw his plea). Here, Cruz’s motion already sought enforcement of his plea. That relief should have been granted here.

Cruz’s total sentence was 6 years, or 2190 days. He calculates he actually served 1379 days on his initial 4-year sentence, received 121 days of jail credit in connection with the VOP, and, at the time he served his habeas petition, had served another 769 days. That totals 2268 days, or 78 days more than his sentence. If Cruz’s calculations are correct, he has already served more than the full sentence which was contemplated by the negotiated plea agreement, and he is entitled to immediate release. See generally Cross v. Navarro, 585 So.2d 1040 (Fla. 4th DCA 1991); Hut v. State, 519 So.2d 1 (Fla. 3d DCA 1987). If the record so established, this court would grant the petition; however, because it does not, the petition is transferred to the trial court. On remand we direct the trial court to consider it expeditiously in light of Cruz’s apparent entitlement to immediate release.

Appeal reversed and remanded with instructions; petition for writ of habeas corpus transferred for expeditious consideration.

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

      . We also note that Cruz had no incentive to enter a negotiated plea to receive the maximum sentence the trial court could have imposed on revocation of probation. Clearly, the state was offering him a considerably lower sentence of only approximately two more years in prison in exchange for his admission to the technical violation.


text:
    Trevor L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3964.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
   PER CURIAM.

Trevor L. Johnson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand because the postconviction court should have considered his motion as if it were filed pursuant to rule 3.850.

In his motion, Johnson sought correction of a scoresheet miscalculation, which he claims denied him the benefit of his plea agreement for the lowest permissible prison sentence. The State responded to the motion and conceded the obvious calculation error. However, citing Williams v. State, 825 So.2d 994 (Fla. 4th DCA 2002), the State asserted that the plea agreement was for a specific term of 65.18 months and, therefore, the scoresheet miscalculation did not warrant resentencing because the sentence imposed does not exceed the statutory maximum. The State further asserted that “there is no indication in the plea colloquy that the bottom of the guidelines was the specific offer from the State.”

The trial court considered the plea form and the transcript of the plea hearing and concluded that “defendant entered into a negotiated plea for a term of years, and the record does not clearly demonstrate that the parties to the plea agreement intended that Defendant be sentenced to the lowest permissible prison sentence.”

The plea form recites “FSP 65.18 months,” which is the number of months that Johnson’s counsel stated was the bottom of the guidelines sentence. The excerpt from the plea colloquy that is relevant to this issue reads:

[Defense Counsel]: Judge, we have reached a negotiated plea agreement. THE COURT: All right, what are we going to do?
[Defense Counsel]: [The State] has agreed to amend in case number OS-12655, [the State] has agreed to amend and reduce the burglary of a dwelling to burglary of a structure.
Mr. Johnson will plead guilty as charged to the remaining counts in that information and in case number 03-004874, the sentence will be a bottom of the guidelines sentence of 65.18 months Florida State Prison and he’ll be sentenced as a habitual felony offender and we’ll stipulate to the fact that Mr. Johnson does qualify as a habitual felony offender.
He has reviewed the plea form as well as the sentencing guideline scoresheet and I’m passing that forward.

While the plea form specifies a term of “FSP 65.18 months,” the transcript supports Johnson’s claim that the agreement was for the lowest permissible prison sentence, which the original scoresheet reflected was 65.18 months. Thus, we are unable to agree with the trial court that the record refutes Johnson’s claim.

Johnson’s entitlement to be resentenced turns on whether his plea agreement was for a specific term of years as the State asserts and the trial court found, or whether it was for the lowest permissible prison sentence, which the plea colloquy appears to support. Thus, Johnson’s claim is the type of claim cognizable under rule 3.850 which affords the evidentiary hearing required to determine the terms of Johnson’s plea agreement. See Dellofano v. State, 946 So.2d 127, 129 (Fla. 5th DCA 2007) (Lawson, J., concurring specially) (observing that because there is no procedure in the Florida Rules of Criminal Procedure for a “motion to enforce plea agreement,” the only avenue available to the movant is to file a claim pursuant to rule 3.850). Johnson’s rule 3.800(a) motion was filed within the two-year period applicable to rule 3.850 motions, but it was not sworn. The trial court should have treated his motion as a timely filed, facially sufficient rule 3.850 motion and dismissed the motion, giving leave to reme the motion under oath within thirty days. See Spera v. State, 971 So.2d 754 (Fla.2007).

We therefore reverse and remand for reconsideration under rule 3.850. Because the plea agreement and the transcript of the plea colloquy preclude a summary denial of Johnson’s claim, we anticipate that Johnson will be entitled to an evidentiary hearing if he refiles a properly sworn motion.

FULMER, WHATLEY, and CANADY, JJ., Concur.

      . The lowest permissible prison sentence reflected on the original scoresheet was 65.18 months. The properly calculated scoresheet reflects a lowest permissible prison sentence of 53.4 months.


author: SILBERMAN, Judge.

text:
    Stephon BOYKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2087.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
   SILBERMAN, Judge.

Stephon Boykins appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The State properly concedes error. Therefore, we reverse and remand for further proceedings.

In 1992, a jury found Boykins guilty of robbery with the use of a firearm. The trial court sentenced him to twenty years’ imprisonment with a three-year minimum mandatory. This court affirmed his judgment and sentence on direct appeal. See Boykin v. State, 676 So.2d 418 (Fla. 2d DCA 1996) (table). In 1998, Boykins filed a rule 3.850 motion which the postconviction court denied. On appeal, this court affirmed in part and reversed in part, concluding that the postconviction court erred in denying one of Boykins’ claims as facially insufficient. See Boykin v. State, 725 So.2d 1203, 1203 (Fla. 2d DCA 1999). On remand in 1999, the postconviction court allowed Boykins to enter a new guilty plea to the robbery charge in exchange for a sentence of twenty years’ imprisonment with a three-year minimum mandatory.

Boykins filed his present rule 3.850 motion in December 2006, claiming that his 1999 plea was involuntary because it was entered based on counsel’s affirmative mis-advice. He asserted that the court offered him two sentencing options in exchange for a guilty plea: fifteen years’ imprisonment as a habitual felony offender (HFO) or twenty years’ imprisonment with no HFO designation. He claimed he opted for the twenty-year sentence on counsel’s advice that with earned gain time he would serve a shorter term than a day-for-day fifteen-year HFO sentence.

Boykins alleged that counsel failed to inform him that eventually he would be placed on conditional release and that any violation of conditional release could subject him to a loss of gain time, resulting in his having to complete the twenty-year sentence. Boykins stated that he was placed on conditional release in 2003 and then violated the terms of that release in 2005. Upon his return to prison, he learned that the Department of Corrections (DOC) had forfeited his earned gain time. Boykins claimed that had he known of the possible forfeiture of gain time when he pleaded guilty, he probably would have chosen the fifteen-year HFO sentence or might instead have opted to go to trial because there was a reasonable probability that he would have been convicted of a lesser charge.

The postconviction court summarily denied Boykins’ rule 3.850 motion, finding that it was untimely because it was not filed within two years of Boykins’ 1999 judgment and sentence. On appeal, the State concedes error based on Beasley v. State, 958 So.2d 1086 (Fla. 2d DCA 2007).

In Beasley, this court reiterated the following:

[T]he triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1).

Id. at 1087-88 (quoting Galindez v. State, 909 So.2d 597, 598 (Fla. 2d DCA 2005)); see also Hall v. State, 891 So.2d 1066 (Fla. 2d DCA 2004); Spradley v. State, 868 So.2d 632 (Fla. 2d DCA 2004). Because Boykins claimed that he did not learn that the DOC had forfeited his gain time until he was returned to prison in 2005, his 2006 rule 3.850 motion was timely filed.

Accordingly, we reverse the denial of Boykins’ motion and remand for the post-conviction court to consider the merits of his allegations.

Reversed and remanded for further proceedings.

CASANUEVA and SALCINES, JJ., Concur.


text:
    In re Isaac F. HAWKINS, III.
    No. 2008-OB-0339.
    Supreme Court of Louisiana.
    March 11, 2008.
   In re Hawkins, Isaac F. Ill; — Plaintiff; Applying for Resignation.

ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous complaints of serious professional misconduct filed against respondent. The complaints allege that respondent converted client funds, neglected legal matters, failed to communicate with his clients, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Isaac F. Hawkins, III, Louisiana Bar Roll number 18251, and the concurrence thereto filed by the ODC,

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

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

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


text:
    In re Gregory D. LYONS.
    No. 2008-OB-0391.
    Supreme Court of Louisiana.
    March 11, 2008.
   In re Lyons, Gregory D.; — Plaintiff; Applying for Resignation.

ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous complaints of serious professional misconduct filed against respondent. The complaints allege that respondent neglected legal matters, failed to communicate with his clients, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Gregory D. Lyons, Louisiana Bar Roll number 9279, and the concurrence thereto filed by the ODC,

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

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

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    In re Brian Thomas TREACY
    No. 2008-OB-0313.
    Supreme Court of Louisiana.
    March 12, 2008.
   In re Treacy, Brian Thomas; — Plaintiff; Applying for Resignation.

ORDER

Considering the Petition for Resignation from the Practice of Law Filed by Brian Thomas Treacy,

IT IS ORDERED that the petition of Brian Thomas Treacy, Louisiana Bar Roll number 15058, seeking to voluntarily resign from the practice of law in the State of Louisiana pursuant to Supreme Court Rule XVIII, § 5, be and is hereby granted.

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


author: JOHNSON, J.

text:
    Honorable Wilford D. CARTER v. HONORABLE JUDGES, DIVISIONS A-E, G, & I, 14TH JUDICIAL DISTRICT COURT.
    No. 2008-C-0172.
    Supreme Court of Louisiana.
    March 14, 2008.
    JOHNSON, J., would grant and assigns reasons.
   JOHNSON, J.

hi would grant the writ application to consider the merits of the plaintiffs claims.

Plaintiff, Judge Wilford D. Carter, was elected to Division “F” of the 14th Judicial District Court for the Parish of Calcasieu in 1993. In 2006, Judge Carter filed a “Petition for Writ of Mandamus and Rule to Show Cause and Declaratory Judgment,” after the judges of the 14th Judicial District Court refused his request for payment of legal fees and expenses incurred in two separate legal proceedings. Judge Carter asserts that both actions were brought in defense of his exercise of jurisdiction over Division “F” of the 14th Judicial District Court. The Petition asks for a determination that the expenses in question were properly incurred in the performance |aof the official duties of his office and that the expenses must be paid out of public funds.

I would grant this writ application to consider whether Plaintiff is entitled to judicial review of the decision by the district court to deny applicant’s request for funding, and whether the attorney’s fees and costs incurred by Judge Carter were necessary for him to perform the duties and responsibilities required of him as Judge for Division “F.”

A Judge has authority and jurisdiction to manage and control his section of Court. The other judges by majority rule cannot be allowed to usurp this authority. In my view, the power of an elected Judge to manage and control his/her division of court, and to properly exercise the duty of the court in general, arises out of the doctrine of inherent powers. In Konrad v. Jefferson Parish Council, 520 So.2d 393 (La.1988), this Court held that under the doctrine of inherent powers, courts have the power (other than those powers expressly enumerated in the constitution and the statutes) to do all things reasonably necessary for the exercise of their functions as courts. The doctrine is a corollary of the concepts of separation of powers and of judicial independence, in that other branches of government cannot, by denying resources or authority to the court, prevent the courts from carrying out their constitutional responsibilities as an independent branch of government. The inherent power of the judiciary is a necessary concomitant to the judicial power, but pertains to the administration of the business of the court.

The doctrine of inherent powers has been utilized to require the appropriation or expenditure of funds reasonably necessary for the court’s functioning as a court. See: McCain v. Grant Parish Police Jury, 440 So.2d 1369 (La.App. 3rd Cir.1983). In McCain, the court noted that: “In the instant case the [Police] Jury is the ^Legislative body of the Parish of Grant. The Plaintiff [Judge McCain] is of the Judiciary Body of said Parish. In order for the Judiciary Body through the Judge’s Office to properly function free and untrammeled it cannot be directed, controlled or impeded in its functions by any of the other departments of government. The [Police] Jury by its failure to properly budget funds for the Judge’s Office will reduce the efficiency and independence of same. This is not to be permitted.”

The Court of Appeal decision focused on the language of La. R.S. 13:996.10 which states, in part, that the judicial expense fund “may be used for any purpose or purposes connected with, incidental to or related to the proper administration or function of the said court or the offices of the individual judges.” (Emphasis added). The CA held that because the payment of expenses is permissive, the defendant judges did not have a legally-imposed duty to pay Judge Carter’s attorney fees, and thus Judge Carter was not entitled to mandamus relief.

Judges, as with all elected officials, are obligated to perform certain duties, and are entitled to exercise certain powers in order to fulfill these obligations. Neither the State, Parish, City, nor other governing authority can prevent such elected officials from performing their duties. Nor should the other Judges on a Court be allowed to do so. In this case, the Plaintiff was entrusted with certain duties and obligations when he was elected to office. Plaintiff is accountable for the actions in his own courtroom, as well as the operation of the court as a whole. The Court majority Rcannot prohibit Judge Carter from operating his office or performing the duties and responsibilities assigned to him in his official, elected capacity.

I would grant the writ application to address whether Plaintiff, as an elected judge, was acting in his official capacity in bringing the underlying actions to assert and protect his authority. If so, Judge Carter, in my view, is entitled to attorney’s fees and costs incurred in the underlying cases, and in this case. See: La. R.S. 13:4521; Twenty-First Judicial Dist. Court v. State, Through Guste, 563 So.2d 1185 (La.App. 1st Cir.1990)[citing Sales Tax District No. 1 of Parish of Lafourche v. Express Boat Company, Inc., 500 So.2d 364 (La.1987); State in the Interest of BS v. PS, 542 So.2d 1163 (La.App. 2nd Cir. 1989); State Department of Transportation and Development v. Keating, 541 So.2d 247 (La.App. 4th Cir.1989); State in the Interest of JML, 540 So.2d 1244 (La.App. 3rd Cir.1989); State in the Interest of JKF, 481 So.2d 194 (La.App. 1st Cir.1985) ].

For these reasons, I would grant the writ application.

      . One of the underlying actions arose out of an attempt by the District Attorney to compel Judge Carter’s appearance in a criminal proceeding. The other action arose out of a dispute regarding the allotment of juvenile cases in the 14th JDC.

      . United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812); McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 4 L.Ed. 579 (1819).

      . Also see: Carriere v. St. Landry Parish Police Jury, 97-1914, 97-1937 (La.3/4/98), 707 So.2d 979, in which this court recognized that the legislature determines the duties of state officials such as coroners, and delegates some of the responsibility for funding the coroner's office to parish governing bodies. This Court held that when the legislature places the burden of paying salaries or other expenses of a state official on parish governing authorities, those bodies are generally obliged to pay these mandated expenses. Carriere, pp. 4-5, 707 So.2d at 981 (citing Reed v. Washington Parish Police Jury, 518 So.2d 1044, 1049 (La.1988)).


text:
    In re Lorna Perez TURNAGE.
    No. 2008-B-0359.
    Supreme Court of Louisiana.
    March 14, 2008.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent notarized a pleading containing the forged signature of her client, and then filed the document into the public record. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Lorna Perez Turnage, Louisiana Bar Roll number 23245, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. 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.

TRAYLOR, J., dissents.


text:
    STATE of Louisiana v. Robert WAGNER, Jr.
    No. 2007-KP-0860.
    Supreme Court of Louisiana.
    March 14, 2008.
   PER CURIAM.

Granted. The judgment of the Third circuit dismissing relator’s appeal and remanding the case to the district court for further proceedings pursuant to State v. Counterman, 475 So.2d 336 (La.1985), is vacated, and this case is remanded to the court of appeal to address relator’s appeal on the merits. Given the trial court’s granting of relator’s motion for appeal and designation of record and the state’s failure to complain about any procedural irregularities in granting the appeal, dismissal of the appeal and a remand to the district court to cure any defects under this Court’s Counterman decision would only prolong the delay without serving any useful purpose.


text:
    Lela JOHNSON v. UNIVERSITY MEDICAL CENTER IN LAFAYETTE, et al.
    No. 2007-CC-1683.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Johnson, Lela; — Plaintiff(s); Applying for Rehearing of this Courts order dated November 21, 2007; Parish of Lafayette, 15th Judicial District Court Div. D, No. 2006-1262; to the Court of Appeal, Third Circuit, No. CW 07-00619.

Rehearing denied.

JOHNSON, J., would grant.


text:
    Christi Lynn Fowler COOK v. Porter Alan COOK.
    No. 2007-CJ-2091.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Cook, Christi Lynn Fowler;— Plaintiff(s); Applying for Rehearing of this Courts action dated December 14, 2007; Parish of Bienville, 2nd Judicial District Court, No. 36,730; to the Court of Appeal, Second Circuit, No. 42,587-CA.

Rehearing denied.


text:
    STATE of Louisiana v. Ronald O. CLESI.
    No. 2007-K-0564.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   Ronald O. Clesi, applying for Reconsideration to this court’s action dated November 2, 2007, from the 22nd Judicial District Court, Parish of St. Tammany, No. 345005; to the Court of Appeal, First Circuit, No. 2006 KA 1250-.

Reconsideration denied.


text:
    EAGLE SERVICES CORPORATION v. Karen T. GUERIN.
    No. 2007-C-2367.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Guerin, Karen T.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 517,695; to the Court of Appeal, First Circuit, No. 2007 CA 0446.

Not considered. Not timely filed.


text:
    Dennis LOPEZ and Carolyn Lopez v. US SPRINT COMMUNICATIONS COMPANY, ABC Construction Company and XYZ Corporation.
    No. 2008-C-0054.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Lopez, Carolyn; Lopez, Dennis et al.; — Plaintiff(s); Applying for Writ of Cer-tiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2003-3300; to the Court of Appeal, Fourth Circuit, No. 2007-CA-0052.

Not considered; not timely filed.


text:
    STATE of Louisiana v. Garry ZEIGLER, Sr.
    No. 2006-KO-1263.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Zeigler, Garry Sr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. H, No. 03-F2288; to the Court of Appeal, Second Circuit, No. 40,-673-KA.

Denied.


text:
    STATE ex rel. Charles Wayne SNEED v. STATE of Louisiana.
    No. 2007-KH-0769.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Sneed, Charles Wayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Bienville, 2nd Judicial District Court Div. A, No. 17,360.

Denied. State v. Thomas, 07-0634 (La.1/11/08), 972 So.2d 323.


text:
    STATE of Louisiana v. Henry A. DYKES, Sr.
    No. 2007-KP-0858.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Dykes, Henry A. Sr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. Ol-F-1228-2; to the Court of Appeal, Second Circuit, No. 42377-KW.

Denied.


text:
    STATE ex rel. Kelvin RUSHING v. STATE of Louisiana.
    No. 2007-KH-0868.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Rushing, Kelvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 37465; to the Court of Appeal, First Circuit, No. 2007 KW 0091.

Denied.


text:
    STATE ex rel. Charles CARTER v. STATE of Louisiana.
    No. 2007-KH-0872.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Carter, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. B, No. 59,370; to the Court of Appeal, First Circuit, No. 2007 KW 0136.

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. Benny Joe YOUNG v. STATE of Louisiana.
    No. 2007-KH-0873.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Young, Benny Joe; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 227,092; to the Court of Appeal, Second Circuit, No. 42,-375-KH.

Denied.


text:
    STATE ex rel. Ralph BUSHNELL v. STATE of Louisiana.
    No. 2007-KH-0896.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Bushnell, Ralph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR-668-01; to the Court of Appeal, Third Circuit, No. KH 07-00222.

Denied.


text:
    STATE ex rel. Jamonte DAVIS v. STATE of Louisiana.
    No. 2007-KH-0921.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Davis, Jamonte; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 09-00-0503; to the Court of Appeal, First Circuit, No. 2007 KW 0235.

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. Mack Gallow TEZENO v. STATE of Louisiana.
    No. 2007-KH-0922.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Tezeno, Mack Gallow; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. A, No. 98-K-4171-A; to the Court of Appeal, Third Circuit, No. KH 07-00278.

Denied.


text:
    STATE ex rel. Henry BOSS v. STATE of Louisiana.
    No. 2007-KH-0923.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Boss, Henry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 99-0553; to the Court of Appeal, Fifth Circuit, No. 07-KH-175.

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.

JOHNSON, J., would grant.


text:
    STATE ex rel. Nathaniel THORNTON v. STATE of Louisiana.
    No. 2007-KH-0924.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Thornton, Nathaniel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 421-885; to the Court of Appeal, Fourth Circuit, No. 2007-K-0220.

Denied. Repetitive. La.C.Cr.P. art. 930.4(A).


text:
    STATE ex rel. Robert L. COX v. STATE of Louisiana.
    No. 2007-KH-0925.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Cox, Robert L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. E, No. 01-157391; to the Court of Appeal, First Circuit, No(s). 2006-KW-2394, 2006 KW 2287.

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. Joseph COOLMAN v. STATE of Louisiana.
    No. 2007-KH-0926.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Coolman, Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Grant, 35th Judicial District Court Div. A, No. 03-CR-606; to the Court of Appeal, Third Circuit, No(s). KH 07-00007, KH 06-01533.

Denied.


text:
    STATE ex rel. Timothy TURNER v. STATE of Louisiana.
    No. 2007-KH-0927.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Turner, Timothy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 03-564; to the Court of Appeal, Fifth Circuit, No. 07-KH-176.

Denied.


text:
    STATE ex rel. Russell LONG v. STATE of Louisiana.
    No. 2007-KH-0946.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Long, Russell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 274,902; to the Court of Appeal, Third Circuit, No. KH 06-01432.

Denied.


text:
    STATE ex rel. Anthony BAUMAN v. STATE of Louisiana.
    No. 2007-KH-0969.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Bauman, Anthony; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 307-964; to the Court of Appeal, Fourth Circuit, No. 2007-K-0338.

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. Russell PAYTON v. STATE of Louisiana.
    No. 2007-KH-0970.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Payton, Russell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 11-94-47; to the Court of Appeal, First Circuit, No. 2007 KW 0234.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.4(D).

WEIMER, J., recused.


text:
    STATE ex rel. Michael WILLIAMS v. STATE of Louisiana.
    No. 2007-KH-0971.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Williams, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 02-2021; to the Court of Appeal, Fifth Circuit, No. 07-KH-196.

Denied. See State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. Bobby STEVENSON v. STATE of Louisiana.
    No. 2007-KH-0972.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Stevenson, Bobby; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 00-6104; to the Court of Appeal, Fifth Circuit, No. 07-KH-218.

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


text:
    STATE ex rel. Henry DAVIS v. STATE of Louisiana.
    No. 2007-KH-0976.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Davis, Henry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 03-99-0192; to the Court of Appeal, First Circuit, No. 2007 KW 0216.

Denied.


text:
    STATE ex rel. Ronald E. COLEMAN v. STATE of Louisiana.
    No. 2007-KH-0979.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Coleman, Ronald E.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 310-797; to the Court of Appeal, Fourth Circuit, No. 2007-K-0282.

Denied. If relator wishes to dispute the DOC’s computation of his time, he must pursue administrative remedies with the DOC, R.S. 15:1171 et seq. and only then may seek judicial review in the 19th JDC. R.S. 15:571.15; R.S. 15:1177.


text:
    STATE ex rel. Ronald G. STEWART v. STATE of Louisiana.
    No. 2007-KH-0984.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Stewart, Ronald G.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 6-00-583; to the Court of Appeal, First Circuit, No. 2007-KW-0198.

Denied.


text:
    STATE ex rel. John W. MATHIEU v. STATE of Louisiana.
    No. 2007-KO-1424.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Mathieu, John W.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 05-4388; to the Court of Appeal, Fifth Circuit, No. 06-KA-946.

Denied.


text:
    STATE of Louisiana v. Jason Lee SHORT.
    No. 2007-K-1473.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Short, Jason Lee; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. B, No. 05-0796; to the Court of Appeal, Third Circuit, No. 06-1451.

Denied.


text:
    STATE of Louisiana v. Voohries J. THERIOT.
    No. 2007-K-1598.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Theriot, Voohries J.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 05-451; to the Court of Appeal, Fifth Circuit, No. 07-KA-71.

Denied.


text:
    STATE of Louisiana v. Jason Lee SHORT.
    No. 2007-KO-1646.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Short, Jason Lee; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. B, No. 05-0736; to the Court of Appeal, Third Circuit, No. 06-1451.

Denied.


text:
    STATE of Louisiana v. Gary MCCARY.
    No. 2007-KO-1826.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re McCary, Gary; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 04-7505; to the Court of Appeal, Fifth Circuit, No. 07-KA-143.

Denied.


text:
    STATE of Louisiana in the Interest of D. S.
    No. 2007-CK-1843.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re State of Louisiana in the Interest of D.S.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish Juvenile Court, No. 2007 JV 455; to the Court of Appeal, Fifth Circuit, No. 07-K-578.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    STATE of Louisiana v. Marcus D. GULLY.
    No. 2007-K-1869.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Gully, Marcus D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 237563; to the Court of Appeal, Second Circuit, No. 42,237-KA.

Denied.


text:
    STATE of Louisiana v. Martha V. CHAMBERS.
    No. 2007-K-1895.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Chambers, Martha V.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 464-924; to the Court of Appeal, Fourth Circuit, No. 2007-KA-0398.

Denied.


text:
    STATE of Louisiana v. Gardner TAYLOR.
    No. 2007-KO-1902.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Taylor, Gardner; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 04-103; to the Court of Appeal, Fifth Circuit, No. 06-KA-558.

Denied.

JOHNSON, J., would grant on “Batson” issue.


text:
    STATE of Louisiana v. Clifton R. BOUDREAUX.
    No. 2007-KO-1936.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Boudreaux, Clifton R.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 2005-227; to the Court of Appeal, Fourth Circuit, No. 2007-KA-0089.

Denied.


text:
    Angelina JACK, et al. v. Kayla THIBODEAUX, et al.
    No. 2007-C-2290.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re American Home Assurance Insurance Company; Jolivette, Paul; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. A, No. 65,817; to the Court of Appeal, Third Circuit, No. 07-709.

Denied.


text:
    Gary BALDWIN v. NORTH AMERICAN ENERGY SERVICES.
    No. 2007-C-2310.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re North American Energy Services; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 02, No. 06-06843; to the Court of Appeal, Third Circuit, No. WCA 07-667.

Denied.


text:
    Chester WRIGHT v. 3P DELIVERY, LLC.
    No. 2007-C-2311.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re 3P Delivery LLC; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, Alexandria City Court, No. 104848; to the Court of Appeal, Third Circuit, No. 07-683.

Denied.


text:
    Freddie MOUTON, et al. v. MORTON INTERNATIONAL, INC., et al.
    No. 2007-C-2314.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Mouton, Teryha; Mouton, Terrell; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. D, No. 107,329; to the Court of Appeal, Third Circuit, No. 07-575.

Denied.


text:
    Robert Earl Lee BICKHAM, et al. v. METROPOLITAN LIFE INSURANCE COMPANY, et al.
    No. 2007-CC-2315.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Chicago Bridge & Iron Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, Nos. 70,760, 72,154, 72,986, 89,864; to the Court of Appeal, First Circuit, No. 2007 CW 1831.

Denied.


text:
    ENTERPRISE LEASING CO. OF NEW ORLEANS v. Michael CURTIS, in His Capacity as Director of the Livingston Parish School Board, Sales Tax Division.
    No. 2007-C-2320.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Enterprise Leasing Co. of New Orleans; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. C, No. 107,081; to the Court of Appeal, First Circuit, No. 2007 CA 0354.

Denied.

CALOGERO, C.J., would grant on the issue of attorney fees.

VICTORY, J., would grant on the issue of attorney fees.


text:
    In re Pauper Application of Margaret MONTGOMERY to Proceed Before Patient Compensation Fund Consolidated with Margaret Montgomery v. North Oaks Medical Center.
    No. 2007-C-2321.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Montgomery, Margaret; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. E, Nos. 2006-0002446, 2006-0002078; to the Court of Appeal, First Circuit, No(s). 2007 CA 0429, 2007 CA 0430.

Denied.


text:
    Edward JACKSON v. A. WAYNE STEWART & ASSOCIATES, A. Wayne Stewart and Damon Miley.
    No. 2007-C-2327.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Jackson, Edward; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. D, No. 86,964; to the Court of Appeal, First Circuit, No. 2007 CA 0192.

Denied.

KIMBALL, J., would grant.

TRAYLOR, J., would grant.


text:
    Brenda BERTHELOT v. PATIENTS’ COMPENSATION FUND OVERSIGHT BOARD.
    No. 2007-C-2328.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Louisiana Patient’s Compensation Fund Oversight Board; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 546268; to the Court of Appeal, First Circuit, No. 2007 CA 0112.

Denied.


text:
    In the Matter of the SUCCESSION OF J. Randolph TEMPLET, Jr.
    No. 2007-C-2329.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Pizzolato, Mary Jane Templet; Whitaker, Claire Templet;' — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. D, No. 9036; to the Court of Appeal, First Circuit, No. 2007 CA 0067.

Denied.


text:
    Mark HANNA v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2007-CP-2336.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Hanna, Mark; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, Nos. 542,549, 507-414; to the Court of Appeal, First Circuit, No. 2007 CA 0170.

Denied.


text:
    STATE in the Interest of B.B. and A.B. v. Michael Tut SIMMONS.
    No. 2007-CP-2337.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Simmons, Michael Tut; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish Juvenile Court, No. 2006 NS 00099.

Denied. The application should first seek relief in the Court Of Appeal.


text:
    STATE of Louisiana v. Kellie THOMPSON and Ashley Falcon.
    No. 2007-KK-2345.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Thompson, Kellie; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, Nos. 07-0314, 07-0315; to the Court of Appeal, Fifth Circuit, No. 07-K-760.

Denied.


text:
    DISPLAY SOUTH, INC., et al. v. GRAPHICS HOUSE SPORTS PROMOTIONS, INC., d/b/a GH Imaging and ghimaging.com.
    No. 2007-CC-2346.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Farm Bureau Mutual Insurance Company of Michigan; — Other; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 505,446; to the Court of Appeal, First Circuit, No. 2006 CW 1778R.

Denied.

TRAYLOR, J., would grant.


text:
    Lynn Marie Sorola CURTIS v. Lawrence N. CURTIS.
    No. 2007-C-2347.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Curtis, Lynn Marie Sorola;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. H, No. 98,2033 H2; to the Court of Appeal, Third Circuit, No. 07-392.

Denied.


text:
    Christopher SAWYER Individually and on Behalf of Amber Sawyer and Trina Sawyer on Behalf of Alyssa Prejean v. Richard CHRISTIANA and Regal Insurance Company.
    No. 2007-C-2361.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Transcontinental Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 606-720; to the Court of Appeal, Fifth Circuit, No. 07-CA-503.

Denied.


text:
    Linette M. CURTIS v. MORGAN KEEGAN & COMPANY, INC., ABC Insurance Company, J. Ronald Atchley, and XYZ Insurance Company.
    No. 2007-CC-2362.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Curtis, Linette M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2004-09353; to the Court of Appeal, Fourth Circuit, No. 2007-C-0945.

Denied.


text:
    SUCCESSION OF Achille BIJEAUX v. Mildred Bourque BROYLES, et al.
    No. 2007-CC-2363.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Alford, David Anderson; Citigroup Corp. & Investment Banking Inc.; Salo-mon Smith Barney Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 20053771-K; to the Court of Appeal, Third Circuit, No. CW 07-01049.

Denied.


text:
    Robert JOHNSON and Catherine Harris Individually and on Behalf of Maximillian Johnson Deceased v. The STATE of Louisiana, d/b/a the Board of Supervisors of Southern University and A & M College.
    No. 2007-C-2364.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Johnson, Robert et al.; Harris, Catherine; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 503,355; to the Court of Appeal, First Circuit, No. 2007 CA 0189.

Denied.

JOHNSON, J., would grant.


text:
    PHOENIX ASSOCIATES LAND SYNDICATE, INC. v. E.H. MITCHELL & CO., L.L.C. and Steven M. Furr.
    No. 2007-C-2365.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Phoenix Associates Land Syndicate Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 2003-12894; to the Court of Appeal, First Circuit, No. 2007 CA 0108.

Denied.


text:
    STATE of Louisiana v. Travis WATKINS.
    No. 2007-KK-2366.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Watkins, Travis; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 07-3967; to the Court of Appeal, Fifth Circuit, No. 07-K-804.

Denied.

CALOGERO, C.J., recused.


text:
    Philip N. TAYLOR, Mrs. Geri Taylor, and Ms. Leesa McCarley v. Michael HADDOX, Individually and d/b/a Village Green Mobile Home Park.
    No. 2007-C-2368.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re McCarley, Leesa; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 49,139; to the Court of Appeal, Second Circuit, No. 42,-557-CA.

Denied.