text:
    Sandra BERG, Appellant, v. Laszlo WAGNER, David Brodsky, Frank Lloyd, Robert Shipman and Bridle Path Homeowners Association, Inc., Appellees.
    No. 4D05-2291.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.

      Daniel S. Rosenbaum and Cheryl L. Potter of Becker & Poliakoff, P.A., West Palm Beach, for appellant.
    Christopher B. Hoskins, Barry A. Postman and Allison S. Miller-Bernstein of Cole, Scott & Kissane, P.A., West Palm Beach, for appellees Laszlo Wagner, David Brodsky, Frank Lloyd and Robert Ship-man.
   PER CURIAM.

This appeal arises from a homeowner’s association dispute. In brief, Bridle Path Homeowners Association, Inc. (the “Association”) filed suit against Sandra Berg, one of its members, seeking to foreclose upon liens recorded against her property as a consequence of her failure to pay assessments levied by the Association. Following the entry of summary judgment in favor of the Association, Berg appealed. A prior panel of this court reversed, finding the lower court had improperly placed upon Berg the burden of demonstrating the assessments were levied in compliance with the community’s governing documents and the relevant Florida statutes. See Berg v. Bridle Path Homeowners Ass’n, 809 So.2d 32 (Fla. 4th DCA 2002). On remand, Berg sought, for the first time, to bring claims for breach of fiduciary duty (count I), slander of title (count II), and violation of section 617.303, Florida Statutes (count III) against Association directors Laszlo Wagner, David Brod-sky, Frank Lloyd, and Robert Shipman, in their individual capacities. The directors moved for summary judgment, arguing Berg’s claims against them were barred as a consequence of the immunity afforded them by section 617.0834, Florida Statutes, and the running of the statute of limitations. The trial court granted the motion for summary judgment and this appeal followed.

We agree with appellant that the summary judgment in favor of the individual directors cannot be sustained on the grounds of the immunity afforded by section 617.0834. Berg’s counterclaims fairly allege that the directors deliberately abdicated their responsibilities with respect to the annual budget, the levying of assessments, and the holding of board meetings and that such actions were taken in bad faith and with a malicious purpose and are adequate to avoid the immunity afforded by the statute. Thus, to be entitled to summary judgment, the directors/moving parties were required to demonstrate the undisputed evidence was such that Berg could not prove the self-dealing or bad faith necessary to impose personal liability. The evidence offered on summary judgment was insufficient to meet this burden. See Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005) (“Summary judgment is proper ‘only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law. All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.’ ”) (quoting Shreffler v. Philippon, 873 So.2d 1280, 1281 (Fla. 4th DCA 2004)) (other citations omitted); Roach v. State Farm Mut. Auto. Ins. Co., 892 So.2d 1107, 1110 (Fla. 2d DCA 2004) (stating it is the moving party who bears the burden to “conclusively demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law”), review granted, 905 So.2d 893 (Fla.2005).

Nonetheless, as a consequence of the running of the relevant statute of limitations, we affirm the summary judgment except to the extent counts I and III are predicated upon acts and/or omissions that occurred after October 11, 1998. The claims for breach of fiduciary duty and violation of section 617.303, Florida Statutes, are subject to a four-year statute of limitations. See § 95.11(3)(o), (p), Fla. Stat. (limitations periods for intentional torts and actions not specifically addressed); Halkey-Roberts Corp. v. Mackal, 641 So.2d 445, 447 (Fla. 2d DCA 1994) (stating breach of fiduciary duty is an intentional tort governed by section 95.11(3)(o)). The deposition testimony of Shipman, Brodsky, and Lloyd leaves open the possibility that each of them served on the board from October 1998 until sometime in 1999, and Berg’s Third Amended Answer and Counterclaims allege acts and omissions from 1993 through 1999. Berg filed and served her counterclaims against the individual directors on October 11, 2002. Thus, the summary judgment was improper to the extent the breach of fiduciary duty and violation of section 617.303 claims were predicated upon post-October 11,1998 conduct.

Affirmed in Part; Reversed in Part; and Remanded.

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.

      . Section 617.303, Florida Statutes, was repealed and renumbered in 2000. The provisions relevant to this appeal now appear in chapter 720.

      . Section 617.0834, Florida Statutes, provides that directors are not personally liable for "any statement, vote, decision, or failure to take an action,” unless:
      (a) The officer or director breached or failed to perform his or her duties as an officer or director; and lb) The officer's or director’s breach of, or failure to perform, his or her duties constitutes:

      3. Recklessness or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

      . An amended complaint will be deemed filed at the time of the filing of the motion for leave to amend. See Totura & Co. v. Williams, 754 So.2d 671, 679-80 (Fla.2000); R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60 (Fla. 3d DCA 1985).


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Allen F. FURIA and Carol Becket Furia, Appellants, v. Evan ZICCARELLI, Appellee.
    No. 4D05-4111.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Richard A. Sherman, Sr., and Richard A. Sherman, Jr. of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Leonard C. Bishop of Law Offices of Leonard C. Bishop, Fort Lauderdale, for appellants.
    Mary M. Cantwell of Markcity, Roth-man & Cantwell, P.A., Plantation, for ap-pellee.
   GROSS, J.

In this case, we hold that the five day mailing rule of Florida Rule of Civil Procedure 1.090(e) extends the twenty day time limit for filing a motion for trial under rule 1.820(h) after the service by mail of an arbitration decision.

Evan Ziccarelli sued Allen and Carol Furia for motor vehicle negligence. After Ziccarelli noticed the case for trial, the trial court ordered the case to arbitration pursuant to section 44.103, Florida Statutes (2004), and rule 1.800.

After the arbitration hearing, the arbitrator rendered a written decision awarding Ziccarelli $27,000 in damages. The arbitration decision was mailed to the parties on February 23, 2005.

Twenty-one days later, on March 16, 2005, the Furias filed a notice for jury trial/trial de novo. See § 44.103(5), Fla. Stat. (2004) (providing that an “arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court”). Ziccarelli moved (1) to strike the notice for trial and (2) for the entry of a final judgment confirming the arbitration award.

The trial court ruled that the Furias’ notice for trial was untimely and entered a final judgment in favor of Ziccarelli.

Section 44.103(5) states that the time limit for filing a request for a trial de novo shall be established “by rales promulgated by the Supreme Court.” Rule 1.820 “created the procedure to effectuate the statute.” Stowe v. Universal Prop. & Cas. Ins. Co., 31 Fla. L. Weekly D1859, — So.2d -, --, 2006 WL 1896714, at *1 (Fla. 4th DCA July 12, 2006). Rule 1.820(h) establishes the time limit for moving for a trial de novo after an arbitrator’s decision, providing that “if a motion for trial is not filed within 20 days of service on the parties of the decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the [arbitrator’s] decision.” In Stowe, we held that rule 1.820(h) creates a twenty day window after an arbitrator’s decision within which to file a motion for trial.

The plain language of Rule 1.090(e) makes it applicable to extend the twenty day window of rale 1.820(h) by five days. Rule 1.090(e) reads:

(e) Additional Time after Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.

“The express language of [rule 1.090(e) ] does not limit its scope; it applies to all circumstances ‘[w]hen a party has a right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party’ ” BNP Paribas v. Wynne, 30 Fla. L. Weekly D195, — So.2d -, 2005 WL 53262 (Fla. 4th DCA Jan. 12, 2005) (citing Volksbank Regensburg v. Burger, 703 So.2d 538 (Fla. 4th DCA 1997) (en banc)). The rule 1.820(h) requirement that a notice for trial be served within the twenty day period after an arbitration decision is a requirement that a party “do some act ... within a prescribed period after the service of ... other paper upon that party” under rule 1.090(e). Thus, when an arbitration decision is mailed to the parties, each party has twenty-five days from the date of the mailing within which to file a motion for trial.

Zicearelli relies on Horvath v. Horvath, 893 So.2d 649 (Fla. 4th DCA 2005), and Jewish Federation of Palm Beach County, Inc. v. Rapaport, 682 So.2d 1149 (Fla. 4th DCA 1996), to argue that the Furias’ notice of trial was untimely under the trial court’s arbitration order, which required that the request for trial de novo be filed within twenty days of the “filing” of the arbitration decision. Rule 1.820(h) measures the twenty day window period from the date of the “service” of the arbitration decision. Unless a rule of civil procedure allows alteration of a time limit, a trial court’s local rule may not supersede a time limit provided in a rule of civil procedure. See Fla. R. Civ. P. 1.010. To the extent that it shortened the rule 1.820(h) time limit, the trial court’s arbitration order was invalid. Although Horvath and Jewish Federation held that rule 1.090(e) did not apply “when a judge has directed that something be filed with the court at a specified time,” Horvath, 893 So.2d at 651, neither case involved a court order that changed a time limit contained in a rule of civil procedure. Horvath, for example, involved a letter from a judge to the parties after trial in a divorce case requesting certain information and giving the parties ten days to respond.

We reverse the final judgment entered in favor of Zicearelli and remand to the circuit court for trial.

WARNER and KLEIN, JJ., concur.


author: WARNER, J.

text:
    Lee HILLIER, Appellant, v. CITY OF PLANTATION, a Florida municipal corporation, and Rae Carol Armstrong, individually, Appellees.
    No. 4D05-3065.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for appellant.
    Michael R. Piper and Tamara M. Scrud-ders of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A., Fort Laud-erdale, for appellee City of Plantation.
   WARNER, J.

Appellant Lee Hillier challenges the trial court’s order denying his petition for writ of mandamus and complaint for in-junctive relief in which he claimed that the City of Plantation had denied his access to public documents of the City. The trial court found that the City complied with Hillier’s requests. Hillier complains that the court’s adoption of the City’s proposed final judgment constitutes a violation of Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), and that he was denied access to some documents. Because Hillier was given ample opportunity to review and object to the proposed final judgment, we conclude no error has occurred in adopting the final judgment submitted by the City. As to Hillier’s claim that he was denied access to documents, we conclude that the trial court’s ruling is supported by competent, substantial evidence. We therefore affirm.

Hillier, a former City Councilman, submitted quite a number of public records requests to the City, The City provided him access to voluminous documents, but Hillier continually contended that it had not provided access to all documents that he had requested. After the complaint had been filed, the court issued an order requiring Hillier to make a listing of specific documents which he claimed had not been supplied. Hillier then amended his claims to include twelve specific items that he was requesting the City to produce.

At the hearing on his requests, Hillier testified to his requests and his belief that he had been denied access to several documents. However, he was unable to confirm or deny that many of these documents existed or that they were in the City’s possession. The City’s witnesses essentially showed that Hillier had never been denied the opportunity to inspect, examine, or copy any of the records the City held. The City’s witnesses testified that some requested documents did not exist. Hillier did not show that they existed, other than by his own statements, which the trial court could choose not to believe. Hillier also admitted to making some vague requests, which he said was his “right.”

After presentation of the evidence, the court asked each side to submit written closing arguments. Hillier first submitted a proposed final judgment and then written closing arguments. Four days later the City presented its proposed final judgment and served Hillier with a copy. The trial court adopted the City’s proposed final judgment nearly two months later, and this appeal followed.

Hillier argues that the court erred in adopting the City’s proposed order verbatim because the court did not make any findings of fact or conclusions of law on the record and did not ask the attorneys to submit a proposed order. In Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), the supreme court held the trial court erred in adopting a wife’s proposed order verbatim without giving the husband an opportunity to comment or object prior to entering the judgment. However, the court did not hold that adoption of a proposed final order verbatim is per se reversible error. Instead, it directed that:

(1) the trial judge may ask both parties or one party to submit a proposed final judgment; (2) if proposed final judgments are filed, each party should be given an opportunity to review the other party’s proposed final judgment and make objections; (3) if only one party submits a proposed final judgment, there must be an opportunity for review and objections by the opposing party; and (4) prior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court’s findings of fact and conclusions of law.

Id. at 384. Notably, although Perloiv suggests that the trial court indicate on the record its findings of fact, when possible, this is not a mandatory requirement. The essential requirement of Perloiv is notice to the other side of the submission of a proposed final judgment and the opportunity to object. See e.g. In re T.D., 924 So.2d 827 (Fla. 2d DCA 2005); Chivari v. Ferrell, 909 So.2d 546 (Fla. 4th DCA 2005); and DeMello v. Buckman, 916 So.2d 882 (Fla. 4th DCA 2005). Reversal is not required simply because the court adopted a final judgment prepared by one of the parties where they have been given sufficient time to prepare and submit judgments and to file objections. See In re T.D., 924 So.2d at 830-31.

Hillier also contends that the court’s judgment is not supported by competent, substantial evidence that the City did not deny him access to a multitude of documents. We disagree. Although Hillier testified that he did not receive access to a variety of documents, City witnesses testified that they never denied him access to any documents he requested, if they could understand what he wanted. In addition, they testified that some documents did not exist. Faced with conflicting evidence, the trial court chose to believe the City’s witnesses. This is merely a credibility determination, and “it is for the trial court who heard the testimony below, not this court, to evaluate and weigh the credibility of witness testimony and other evidence adduced at trial.” Adkins v. Adkins, 650 So.2d 61, 62 (Fla. 3d DCA 1994). There was competent, substantial evidence to support the trial court’s judgment. “A trial court’s determination will be upheld if it is supported by competent, substantial evidence.” Cohen v. Guardianship of Cohen, 896 So.2d 950, 955 (Fla. 4th DCA 2005).

With respect to access to certain litigation files, on appeal Hillier contends that the litigation privilege was improperly invoked to prevent access to these documents. However, that is not the claim he made at trial. Therefore, this issue may not be raised for the first time on appeal. As to Hillier’s access to the files once litigation terminated, the trial court’s order was supported by competent, substantial evidence.

Affirmed.

GROSS and HAZOURI, JJ., concur.


author: STEVENSON, C.J.

text:
    Benny J. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-699.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.

      Sebastian Cotrone, Special Public Defender, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Following an altercation at a transfer dumping station, appellant was charged and convicted of felony battery for stabbing Patrick Nelson and of aggravated assault with a deadly weapon for threatening Leroy Bailey with a knife. We reverse because it was fundamental error for the trial court to charge the jury on the “forcible felony” exception to self-defense where there was no independent felony and the jury could have concluded that the “forcible felony” was the charged crime to which the defendant claimed self-defense.

Leroy Bailey, a self-employed tree trimmer, testified that on the afternoon of August 29, 2003, he and Patrick Nelson were at a transfer dumping station to unload a truck full of debris. Bailey testified Nelson informed him that appellant, who had been unloading a truck, was looking in the cab of Bailey’s truck. Bailey asked appellant if he had a problem, and Nelson and appellant began arguing. According to Bailey, when he turned around, he noticed appellant had a knife and yelled this to Nelson. Bailey testified appellant rushed Nelson and stabbed him. In the meantime, Bailey grabbed a shovel and struck appellant twice. Appellant came at Bailey, swinging the knife. Nelson testified and basically confirmed Bailey’s story.

Appellant gave a taped statement and testified at trial, maintaining that he acted in self-defense. Appellant explained he was at the transfer station to earn extra money and a guy he knew had given him two containers of peanut oil. According to appellant’s trial testimony, he then ran into two men, Bailey and Nelson, one of whom asked what was in the containers. Appellant said he put the two containers down and was helping to direct a truck that was backing up when Nelson began using profanity and calling him a “blood-clot.” Appellant stated that he told Nelson to leave him alone, but Nelson grabbed a tree limb from the truck and struck him in the face. Appellant backed up and went down on his knee. He heard a shovel dragging the ground and saw Bailey come around the side of the truck with a shovel in his hand. Appellant testified that with Nelson on one side of the truck and Bailey on the other, he was pinned at the back of his truck. According to appellant, it was only when Bailey took a swing at him with the shovel that he pulled out his knife. Nelson then came around the side of the truck and “got stuck” with the knife.

With regard to appellant’s defense of self-defense, the jury was instructed that appellant was not justified in using either deadly force or non-deadly force if the jury found appellant “was attempting to commit, committing, or escaping after the commission of felony battery and/or aggravated assault.” Appellant now contends the above-quoted jury instructions constituted fundamental error. We agree. The complained-of jury instructions have their genesis in section 776.041, Florida Statutes (2003), entitled “Use of force by aggressor,” which provides, among other things, that the use of force is not available as a defense to one “who ... [i]s attempting to commit, committing, or escaping after the commission of, a forcible felony.” See, e.g., Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). Both crimes with which appellant was charged qualify as a “forcible felony.” § 776.08, Fla. Stat. The plain language of section 776.041(1), though, is such that the instruction is appropriately applied “only under circumstances where the person claiming self-defense is engaged in another, independent ‘forcible felony.’ ” Giles, 831 So.2d at 1265 (citing Perkins v. State, 576 So.2d 1310 (Fla.1991)). Consequently, in cases where the defendant is charged with the commission of a single crime and the jury is instructed that the use of force is not justified if it finds the defendant “was attempting to commit, committing, or escaping after the commission of [the crime with which the defendant was charged],” the courts have held the jury instruction is circular and, where the effect of the instruction is to negate the defendant’s only defense, such an error is fundamental. See, e.g., Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005); Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003).

The State seeks to distinguish the line of authority represented by Estevez, arguing that the giving of the instruction in this case did not completely negate appellant’s defense as he was charged with two forcible felonies, i.e., the felony battery against Nelson and the aggravated assault against Bailey. Thus, under the State’s argument, the instruction was appropriately given because appellant would not be justified in using force against Bailey if the aggravated assault on Bailey was committed while appellant was committing or attempting to commit the felony battery on Nelson, and appellant would not be justified in using force against Nelson if the felony battery on Nelson was committed while appellant was committing or attempting to commit the aggravated assault on Bailey. First, the State’s argument ignores the manner in which the jury was actually instructed. The jury was not instructed that appellant was not justified in using force against Nelson if the felony battery against Nelson was committed while he was committing or attempting to commit the aggravated assault on Bailey. Instead, the felony battery and aggravated assault charges were lumped together for purposes of the self-defense instructions and the jury was simply instructed that appellant was not justified in using force if appellant “was attempting to commit, committing, or escaping after the commission of felony battery and/or aggravated assault.” Such instruction allowed the jury to find that appellant was not justified in using force against Nelson if the felony battery against Nelson occurred while he was committing the felony battery against Nelson. Likewise, the instruction allowed the jury to find that appellant was not justified in using force against Bailey if the aggravated assault with a deadly weapon against Bailey happened while appellant was committing the aggravated assault with a deadly weapon against Bailey. Thus, the same circularity that compelled reversal in Estevez and other similar cases is present here. Second, the facts of the instant case are such that they are governed by the decisions in Shepard v. Crosby, 916 So.2d 861 (Fla. 4th DCA 2005), review denied sub nom. McDonough v. Shepard, 930 So.2d 622 (Fla.2006), and Ruiz v. State, 900 So.2d 733 (Fla. 4th DCA 2005), holding that the giving of a standard instruction patterned after section 776.041(1) is error unless there is a separate, independent forcible felony for which the defendant is not claiming self-defense.

In this case, Nelson and Bailey testified that appellant was the aggressor and that Bailey did not grab for a shovel until after appellant pulled out a knife. Appellant, on the other hand, testified that Nelson and Bailey were the aggressors and that he pulled out his knife only after Nelson had hit him in the face with a tree branch and only after he saw Bailey with the shovel. The instruction given the jury served to negate appellant’s sole defense to the charged crimes. Thus, the giving of the erroneous instruction was fundamental error that compels reversal, despite defense counsel’s failure to object at trial. We, therefore, reverse appellant’s convictions and remand for a new trial.

Reversed and Remanded.

SHAHOOD and MAY, JJ., concur.

      . Our holding renders moot appellant's second point on appeal, wherein he claims that a myriad of instances of ineffective assistance of counsel compel reversal of his conviction.


author: TAYLOR, J.

text:
    STATE of Florida, Appellant, v. Aimee Lee WEISS, Appellee.
    No. 4D04-3002.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Ellis S. Rubin of the Law Offices of Ellis Rubin and Robert I. Barrar, Miami, for appellee.
   TAYLOR, J.

The State of Florida appeals the trial court’s order granting the defendant’s motion to suppress admissions and statements. We affirm, concluding that the trial court correctly determined that the defendant was in custody and, thus, entitled to Miranda warnings. As the state concedes, the warnings were inadequate under Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla.2005).

Following hearings held on the defendant’s motion to suppress over a period of several months, the trial court issued a written order on February 24, 2003, summarizing the testimony at the hearings and making the following findings:

A.FINDING THE INFANT’S BODY: On April 3, 2001 the body of a dead infant was found in a canal near the defendant’s home. The body was wrapped in plastic bags, with a pair of panties wrapped around its neck. There were ligature marks on the baby’s neck. The body was found inside a backpack along with a ten pound weight. According to a witness, the backpack had been placed in the canal by a white female who fit the description of the defendant. The witness described the girl with a wet backpack as being up to her knees in the canal water. The name Julie Gardner was contained on the backpack, and the name Matthew Walpole was found on a towel inside the backpack. A book was also found at the canal bank, which belonged to one of the defendant’s friends.
B. FINDINGS OF MEDICAL EXAMINER: On April 4th, 2001, an autopsy was conducted by the medical examiner’s office, which revealed a full term baby boy with no evidence that the baby died of drowning. The ligature marks on the baby’s neck was consistent with asphyxia. The medical examiner testified that prior to the defendant giving her taped statement, that no expert opinion could be rendered as to whether or not the child was born alive. In the defendant’s subsequent statement, she stated that when she cut the umbilical cord that blood squirted out. She further stated that the color of the baby was pinkish. The medical examiner found that the death was consistent with homicide.
C. The Broward Sheriffs Detectives canvassed the area where the baby was found for a white female fitting the description described by the witness. This investigation led to an interview of the defendant’s father, who stated that he had two daughters. The detectives interviewed the defendant, who stated that she had not been pregnant. On April 6, 2001, Detectives of the Broward Sheriffs Office obtained a statement of the defendant’s friend, Julie Gardner, who identified the backpack as belonging to her, and who stated that she had loaned the backpack to the Defendant previous to April 3, 2001. A statement was also obtained from Matthew Walpole, who acknowledged that he was the defendant’s boyfriend. He acknowledged that the defendant had been pregnant, and stated that the defendant had been taking drugs and alcohol in an attempt to abort the baby. Mr. Walpole told the police that the defendant was spending the night at the Welch residence.
D. On April 7, 2001, detectives obtained a search warrant for the defendant’s home. Detective Bukata testified that he told the defendant’s father that defendant was at the Public Safety Building being questioned about the dead infant. The defendant’s father signed a “consent to search” form to search the residence. Weights were found in the home, which were similar to the weight found in the backpack. Similar panties were found at the residence, which matched the panties wrapped around the baby’s neck.
Earlier on the same date, at around 7:00-7:30 A.M., Four Detectives went to the home of Mr. and Mrs. Welsh [sic], where the defendant and her sister were sleeping with Jennifer Welsh. The detectives asked the Defendant and her sister to “accompany” them to the Bro-ward Sheriffs Office for questioning about the “baby case”. The defendant was not told that she had a right to refuse to go with the detectives. The detectives transported the defendant and her sister to the Broward Sheriffs Office for questioning. The defendant was told that her father would be notified of her whereabouts.
E. DEFENDANT AT THE BRO-WARD SHERIFF’S OFFICE: There is a conflict in the witnesses’ testimony, as to whether the defendant requested the presence of her father at the Broward Sheriffs Office prior to her interrogation. In her taped statement the defendant recounts that her father was contacted before the tape went on, and that she elected to give the statement before consulting with him. The defendant’s sister remained in a waiting room, and the defendant was taken to a conference room where Detective Reed [sic] and Murray interviewed her. The detectives testified that the defendant had been told that her father had been contacted, but she stated she did not want him present during the interview. The defendant was told by the detectives that they knew she had a baby and that they wanted to talk to her about it. Coffee and Donuts were brought in. The defendant at this point had not been given her Miranda Rights, she was not told that she was free to leave; or that she did not have to talk to the detectives. She was advised that she was not under arrest.
The interview of the defendant lasted approximately three hours. Prior to the interview the detectives contacted the medical examiner, who instructed the detectives to find out if there was blood corning from the baby’s umbilical cord subsequent to his birth, and to find out the color of the baby’s skin at birth. The taped statement of the defendant started at 12:30 P.M. Detective Reed testified that Detective Carmody advised the defendant of her Miranda rights at 9:30 A.M., from a Broward Sheriffs form, which the defendant signed. This form was received into evidence as Exhibit 7. The detectives stated that the defendant never requested an attorney, or to have her father present during the interview. The initial conversation that the defendant had was not recorded. The taped conversation took 39 minutes.
The defendant was shown a picture of the dead baby, and told the detectives that Julie Gardner had given her the backpack. She stated that the baby in the back pack was hers. The defendant described the delivery of the baby, and stated that the clothes that she was wearing at the time of the statement, were the same clothes that she had worn at the time of the delivery of the infant. The defendant was in 12th grade, and was a straight “A” student. She admitted that during her pregnancy that she attempted to force a miscarriage, by pushing heavy furniture and having her boyfriend, Matthew Walpole, jump on her stomach. When questioned about the baby, the defendant stated that the baby was not born alive, but stated that the baby was pink and that blood flowed from the umbilical cord. Follow [sic] the delivery, the defendant acknowledge [sic] that she put the baby in a canal on March 26, 2001. Initially, the bag did not sink, so she retrieved the bag from the water and inserted a 10 lb weight. When she came out of the water she was observed by a neighbor.
3. TESTIMONY OF THE DEFENDANT: The defendant testified that she had slept over at Jennifer Welch’s house when the detectives arrived and Detective Reed told her to get dressed. One of the four detectives present told her that she was going to go to her house. The defendant was driven to the police headquarters by Sgt. O’Neil, and she was told that her father would meet her there. Sgt. O’Neil asked her if she wanted her father to sit in with her, and she testified that she said yes. She asked if her father was on the way, and she was told yes. The defendant stated that she was never told that she is free to leave.
4. TESTIMONY OF THE DETECTIVES: Detective Carmody testified that he never told the defendant that her father would be present before the questioning. Detective Reed testified that she transported the defendant from the Welsh home and that the defendant was not told that she was going home. Detective Reed testified that Detective Carmody told the defendant that she was going to the police station. The detective testified that she was informed that her father was on the way to the police station. The defendant did not say that she wanted her father present before she was questioned, and she said that she did not want her father present during the questioning.
Detective James Murray testified that four detectives went to the Welch house at the time that the defendant and her sister Kimberly were “picked up”. The defendant was told that the detectives need to talk to her, and that she was going to the station. She did not ask about her father, and Deceptive [sic] Murray stated that he did not attempt to call him. The witness testified that there was no indication to the defendant that she was going to be taken to her home, rather than to the police station. Detective Murray did not inform the defendant that her father would be present during any questioning. When Detective Murray executed the search warrant at the Weiss home, he stated that he told Mr. Weiss that his daughter was being questioned at the Public Safety Building, and he said he did not want to be present during questioning.
Detective Brent Illiraza, testified that he was present at the Welsh home when the defendant was taken into custody. She understood that she was not going to her home, but to the police station. The defendant, according to the witness, was never told that her father would be present before any questioning. The detective testified that the defendant was never advised of her right to refuse to come in for questioning.
Detective Glen Bukata testified that he was involved in the search of the Weiss home. He testified that Mr. Weiss said that it was okay for the detectives to question his daughter, and that he chose to stay home when he was told that his daughter was at the public safety building.

The defendant was charged by indictment with murder in the first degree for premeditated murder of an “unnamed infant child ... by asphyxia.” Her attorney filed motions to suppress her admissions and statements. After making the above factual findings, the trial court ruled that the defendant was in custody for Miranda purposes and that she was subjected to custodial interrogation. In so ruling, the court found, among other things, that the “pickup” of defendant at the Welsh home in the early morning hours of April 7, 2001 by four detectives of the Broward Sheriffs Office was a “de facto” arrest and a Fourth Amendment “seizure” of the defendant. The court ruled that based on “the totality of the facts and circumstances” known by the detectives at the time of their arrest of the defendant, the detectives had probable cause to arrest her.

The trial court further found that the defendant waived her right to talk to her father before interrogation and that the police did not coerce her into talking. Noting that the defendant was a straight “A” student with a 12th grade education, the trial court ruled that the defendant had knowingly and intelligently waived her rights despite the fact that the Miranda form advised her of her right to an attorney “before” questioning but not “during” questioning. The court further ruled that certain statements made by the defendant prior to being read her rights did not render the statements involuntary, given that she renewed them post-Miranda

Thereafter, the defendant filed a renewed motion to suppress, citing our recent decision in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). We held there that Miranda warnings that did not include advisement of the right to have an attorney present during questioning were inadequate to fully inform the defendant of his constitutional rights. Based on Roberts, the trial court granted the defendant’s renewed motion to suppress statements and vacated its previous order.

The state appealed the suppression of the defendant’s statements. Although it acknowledges in its brief that, under Roberts, the Miranda warning given to the defendant was defective, it argues that the evidence adduced at the suppression hearings did not support the trial court’s ruling that the defendant was in custody such that Miranda warnings were required.

A trial court’s ruling on a motion to suppress is presumed correct. State v. J.D., 796 So.2d 1217, 1218 (Fla. 4th DCA 2001). In reviewing a ruling on such a motion, we “interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.” Id.; see also Connor v. State, 803 So.2d 598 (Fla.2001). The standard of review applied to orders denying a motion to suppress is mixed: the court’s factual findings are accorded deference and will be upheld if supported by competent, substantial evidence; legal conclusions, however, are reviewed de novo. State v. C.F., 798 So.2d 751, 754 (Fla. 4th DCA 2001); see also Harris v. State, 761 So.2d 1186, 1187-88 (Fla. 4th DCA 2000) (stating that orders denying suppression of evidence are reviewed de novo; factual findings of the lower court are reviewed for competent, substantial evidence, although whether “as a matter of law those facts amount to a reasonable suspicion or probable cause” is determined de novo).

It is well-settled that the safeguards provided by Miranda apply only if an individual is in custody and is subject to interrogation. Sapp v. State, 690 So.2d 581, 585 (Fla.1997); Johnson v. State, 800 So.2d 275, 277 (Fla. 1st DCA 2001); Ramsey v. State, 731 So.2d 79, 81 (Fla. 3d DCA 1999). Courts have defined “custody” in various ways. Simply put, the test is whether, from an objective point of view, the individual would believe he or she is free to end the encounter with law enforcement. See Roman v. State, 475 So.2d 1228, 1231 (Fla.1985) (explaining, “the ultimate inquiry is simply ‘whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest’ ”) (citations omitted). The court must consider how a reasonable person would react given the “totality of the circumstances” of the situation. See State v. Poole, 730 So.2d 340, 342 (Fla. 3d DCA 1999); Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

Not every encounter between a citizen and police is custodial. By its very nature, “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” Roman, 475 So.2d at 1232. Nevertheless, it is “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

We have employed a four-factor test for determining whether a suspect is in custody:

(1) the manner in which the police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his guilt; and (4) whether the suspect is informed that he or she is free to leave.

C.F., 798 So.2d at 754 (quoting Mansfield v. State, 758 So.2d 636, 644 (Fla.2000)).

To begin our analysis, we note that the Florida Supreme Court has held that the question of whether a suspect is in custody is one of mixed fact and law. Ramirez v. State, 739 So.2d 568, 574 (Fla.1999). The court delineated the test that reviewing courts must conduct in determining whether a suspect was in custody:

Two discrete inquiries are essential to the determination [of whether a defendant was “in custody” for Miranda purposes]: first, what were the circumstances surrounding the interrogation; and second, given those circumstances would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.... The first inquiry, all agree, is distinctly factual. State-court findings on these scene- and action-setting questions attract a presumption of correctness [under federal statutory law]. The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination, we hold, presents a “mixed question of law and fact” qualifying for independent review.

Connor v. State, 803 So.2d 598, 606 (Fla.2001) (quoting Thompson v. Keohane, 516 U.S. 99, 112-15, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)).

In conducting the first step — examining the circumstances surrounding the interrogation — we consider the factual findings made by the trial court in its order on the defendant’s motion to suppress. In its findings, the trial court noted that the defendant first spoke with detectives on the night of April 4, 2001, while they were canvassing the area. The defendant next encountered the officers early in the morning on April 7, 2001, when they came to the Welch home. The court found that the officers “asked the Defendant and her sister to ‘accompany’ them to the Broward Sheriffs Office for questioning about the ‘baby case.’ ” The court also found that the defendant was not told that she could refuse to accompany the officers. The court further found that the defendant was told that her father would be informed of her location.

The court recognized conflict in the testimony of the witnesses regarding whether the defendant specifically requested that her father be present while she was being questioned. The court concluded that “having weighed the credibility of the witnesses and having considered the totality of the circumstances, [it] resolves the conflict in favor of the State’s witnesses, and finds that the Defendant’s father was notified that his daughter was being questioned by police.” The court determined that the defendant did not request to see her father before she was questioned.

The court found that detectives told the defendant that they knew she had delivered a baby. The court further found that the defendant was not given her Miranda rights, told she could leave, or informed that she did not have to talk to the officers; however, the court also found that she was specifically advised that she was not under arrest. The court noted that the defendant was interviewed for three hours.

The court found that the detectives advised the defendant of her Miranda rights using the Broward Sheriffs Office form. It noted that the detectives stated that the defendant never requested the presence of an attorney or her father during questioning. During the interview, the defendant admitted that the baby in the backpack was hers, that she had given birth to it, that she believed it to be dead at birth, and that she disposed of it in a nearby canal.

Applying the law to these factual findings — the second step in our two-step inquiry' — we next determine whether the defendant was in custody. We are guided by the four-factor test outlined above. Here, after advising the defendant the night before that they would return the next day, four detectives came to the Welches’ home around 8 a.m. The girls, thus, should have expected the return of the officers because they were so informed the previous evening.

Sergeant O’Neil testified that he requested the participation óf a female officer, Juanita Reid, because of the “sensitive” subject matter of the investigation. After the girls were woken by Mr. Welch, Detective Reid greeted them and gave them time to dress. The defendant and Kim were then asked to return with the detectives to the police station to talk about the “baby case.” They were specifically told that their father would be notified of their whereabouts. There is no evidence that the girls were threatened, coerced, or cajoled to accompany the officers. They were not handcuffed nor told that they were under arrest. There is no evidence that the defendant did not voluntarily accompany the officers. Poole noted that simply because a person responds to an officer’s request without first being told that he or she may decline does not mean that the encounter is not consensual. 730 So.2d at 342. However, the presence of multiple officers and the fact that they wore side arms may indicate that the girls did not feel free to ignore the officers’ request. See id. at 342 (circumstances that indicate the seizure of a person “would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”) (quoting U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)).

Regarding the second factor in the four-factor test — the location of the questioning — the defendant and her sister were questioned at the Public Safety Building. Our supreme court has noted that simply holding an interrogation at a police station does not, by itself, turn an otherwise noncustodial interrogation into a custodial one. Roman, 475 So.2d at 1231; Ramsey, 731 So.2d at 80. The location of the interrogation is simply one factor. See Bostick, 501 U.S. at 437, 111 S.Ct. 2382.

The third factor is “the extent to which the suspect is confronted with evidence of his guilt.” C.F., 798 So.2d at 754. In Ramirez, the court found that the defendant, a juvenile with only limited contact with the criminal justice system, was in “custody,” in part, because he was never told he was free to leave, and the questions directed at him indicated that the officers considered him a suspect. 739 So.2d at 574. Here, the detectives did not inform the defendant that she was a suspect when they arrived at the Welches’ home on the morning of April 7 or during the drive to the Public Safety Building. However, while in the waiting room prior to her interview, Detective Murray told the defendant that he knew that she had given birth and that this was the reason she was there. Arguably, the defendant was “confronted with evidence of her guilt” when Murray told her that he believed she was responsible for the dead baby. Moreover, she likely did not feel free to leave after Murray made this statement.

Finally, we consider whether the defendant was told that she could leave. Here, the officers, the defendant, and her sister all testified that the girls were never expressly told that they were free to refuse the detectives’ request to accompany them to the station or that they were free to leave once they arrived. There is no indication on the record that the defendant believed she could refuse the officers’ requests, particularly after she was told that they knew she had delivered the baby that was found. Cf. Ramsey, 731 So.2d at 80 (where a suspect voluntarily spoke with detectives on several occasions and voluntarily came to the station, simply because he was not told that he was not free to leave did not mean he was in custody).

Given the totality of the circumstances, we agree with the trial court that the defendant was in custody for Miranda purposes. We need not consider the defendant’s particular mindset. See State v. Gilles, 701 So.2d 375, 377 (Fla. 3d DCA 1997). However, we may consider her youth and lack of exposure to the criminal justice system. See Ramirez, 739 So.2d 568. In sum, the evidence revealed at the suppression hearings shows that the defendant was approached in the early morning hours by four plain-clothes officers wearing badges and sidearms and was asked to accompany them to a police station for questioning about the “baby case.” She was never told that she could refuse to accompany them to the station or that once she had arrived, she could leave; nor is there evidence that she had the means to leave if she so desired. Further, there was credible testimony that once the defendant reached the station, a detective told her he believed she had delivered and disposed of the baby that was found. The defendant was then taken to an interview room, where she was read her Miranda rights and questioned for three hours. See Raysor v. State, 795 So.2d 1071, 1072 (Fla. 4th DCA 2001) (holding, once a suspect is read her Miranda rights, she may reasonably assume that she is not free to leave).

As the trial court found, the defendant was not properly warned of her right to counsel during police questioning. Rather, she was given warnings identical to those we found inadequate in Roberts Accordingly, we affirm the order granting her motion to suppress statements.

Affirmed.

STEVENSON, C.J., and GUNTHER, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We also note that the defendant was not provided the warnings we determined to be sufficient in Canete, v. State, 921 So.2d 687 (Fla. 4th DCA 2006).


author: PER CURIAM.

text:
    Willie T. BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1368.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Willie T. Burgess, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Willie T. Burgess, appeals the summary denial of his rule 3.850 motion for post-conviction relief. Appellant alleged ineffective assistance of his trial counsel for failing to move to suppress his confession made to police after he was given defective Miranda warnings. In comparable cases, we have held that such a claim is legally sufficient. See Anthony v. State, 927 So.2d 1084 (Fla. 4th DCA 2006); Martelus v. State, 924 So.2d 881 (Fla. 4th DCA 2006); Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005). We therefore reverse and remand either for the attachment of portions of the record conclusively refuting the claim or for an evi-dentiary hearing.

Reversed and Remanded.

FARMER, KLEIN and HAZOURI, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    R.A., the Father, Appellant, v. P.A., the Mother, Appellee.
    No. 4D05-4128.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Karen M. Zann of Karen M. Zann, P.A., and Emilie M. Tracy of Emilie M. Tracy, P.A., Fort Lauderdale, for appellant.
    Kathleen K. Pena of the Law Offices of Kathleen K. Pena, Pembroke Pines, for appellee.
   PER CURIAM.

R.A., the father, appeals the denial of his petition seeking termination of the parental rights of P.A., the mother. The trial court determined that the mother’s conduct was not egregious and that clear and convincing evidence did not establish that therapy for the mother would be futile. “An appellate court may reverse the trial court’s order denying a petition to terminate parental rights when the denial is not supported by competent substantial evidence and is not in the best interests of the children.” Dep’t of Children & Families v. K.F., 916 So.2d 948, 950 (Fla. 4th DCA 2005). Competent substantial evidence supports the trial court’s conclusions in this case. We therefore affirm the order on review.

STEVENSON, C.J., STONE and POLEN, JJ., concur.


text:
    Hakam SUELIMAN, Petitioner, v. Ken JENNE, as Sheriff of Broward County, Florida, and State of Florida, Respondents.
    No. 4D06-2005.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.

      Cyrus A. Bischoff of Bischoff & Associates, P.A., Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for respondents.
   ON MOTION FOR RECONSIDERATION

PER CURIAM.

We previously granted in part and denied in part this petition for writ of habeas corpus. Petitioner timely moved for reconsideration. We grant the motion, withdraw our previous order, and substitute the following decision in its place.

The petition for writ of habeas corpus is granted. The trial court abused its discretion when it sua sponte increased petitioner’s bond in this case to more than $1 million. Montgomery v. Jenne, 744 So.2d 1148 (Fla. 4th DCA 1999); Cousino v. Jenne, 717 So.2d 599, 600 (Fla. 4th DCA 1998); Bowers v. Jenne, 710 So.2d 681, 682 (Fla. 4th DCA 1998); Flemming v. Cochran, 694 So.2d 131 (Fla. 4th DCA 1997). Petitioner was not given notice that his bond on three charges, to wit: solicitation to commit armed robbery, conspiracy to commit armed robbery, and loitering and prowling, would be subject to increase at the hearing on petitioner’s motion to set bond on the charge of attempted armed robbery. The bond amounts initially set by the magistrate on the three counts are hereby reinstated. On remand, the state will be permitted to seek an increase in bond on these counts by filing an appropriate motion. See Keane v. Cochran, 614 So.2d 1186 (Fla. 4th DCA 1993).

Based on the record before us, we also determine that the $500,000 bond set by the trial court on the attempted armed robbery count was unreasonable and tantamount to no bond. The trial court did not hear sufficient evidence on the nature and extent of petitioner’s financial resources to justify the bond amount on this count. Patterson v. Neuman, 707 So.2d 946 (Fla. 4th DCA 1998); Mesidor v. Neumann, 721 So.2d 810 (Fla. 4th DCA 1998). The trial court shall hold a new bond hearing as soon as practicable and consider all the relevant factors in setting a reasonable bond on this count. Fla. R.Crim. P. 3.131; § 903.046, Fla. Stat. (2005).

We reject petitioner’s contention that insufficient probable cause existed to support the attempted armed robbery count.

STEVENSON, C.J., SHAHOOD and TAYLOR, concur.


text:
    PALM BEACH PRIMARY CARE ASSOCIATES, INC., Petitioner, v. Saima MUFTI, M.D., Respondent.
    No. 4D06-1641.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Isidro M. Garcia of the Garcia Law Firm, P.A., West Palm Beach, for petitioner.
    Walter C. Jones, IV of Freeman & Jones, L.L.C., Palm Beach Gardens, for respondent.
   PER CURIAM.

Palm Beach Primary Care Associates, Inc. (the former employer) seeks certiorari review of a non-final order which granted the respondent’s motion to compel and required the former employer to disclose allegedly confidential financial and patient data, treating its objections to production as “waived.” We grant the petition.

We agree that the former employer’s response to request for production, like its response to the interrogatories, was untimely. The response was ordered to be provided within ten days of the date of the order compelling it, not within ten days of the date of service of that order. Accordingly, Florida Rule of Civil Procedure 1.090(e), which applies when an act is to be done a certain amount of time “after the service of a notice or other paper upon that party” and the service is made by mail, did not apply. See Horvath v. Horvath, 893 So.2d 649, 651 (Fla. 4th DCA 2005); Jewish Fed’n of Palm Beach Coun ty, Inc. v. Rapaport, 682 So.2d 1149, 1151 (Fla. 4th DCA 1996).

However, we find that the trial court departed from the essential requirements of law in failing to consider the former employer’s objections to discovery which were based on privacy and privilege concerns. Austin v. Barnett Bank of S. Fla., N.A., 472 So.2d 830 (Fla. 4th DCA 1985) (holding that where privilege is asserted, the trial court should inspect the discovery requested in camera even though the petitioner’s assertion of a privilege was untimely).

Accordingly, the petition is granted to the extent discovery was ordered over such objections, and the trial court on remand is directed to consider on the merits the former employer’s privacy and privilege objections.

GUNTHER, STONE and SHAHOOD, JJ., concur.


text:
    Derry L. WEST, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-221.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Derry L. West, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse with respect to the appellant’s fourth claim for relief, and affirm the denial of the remainder of the appellant’s claims without discussion.

Pursuant to a negotiated plea agreement, the appellant pleaded guilty to grand theft and battery. He was sentenced to 62.1 months in prison — the lowest permissible sentence — with credit for time served, and to time served, respectively. In addition, the state nolle prossed the violation of probation in another case. No direct appeal was taken.

The appellant alleges that he informed his counsel of errors in his scoresheet; yet, counsel failed to object. Appellant claims these errors resulted in an extra 26.6 points on his scoresheet. In addition, he argues that his sentence exceeds the statutory maximum of 5 years for a third degree felony. Appellant further contends that the alleged scoresheet errors affected the voluntariness of his plea.

In denying relief, the trial court explained that a sentence which exceeds the statutory maximum is not necessarily illegal. When the statutory maximum sentence is exceeded “by the lowest permissible sentence under the guidelines prepared pursuant to the code, the lowest permissible sentence under the code becomes the maximum sentence which the trial judge can impose.” Butler v. State, 838 So.2d 554 (Fla.2003); Demar v. State, 840 So.2d 381 (Fla. 1st DCA 2003).

However, appellant argues that his scoresheet was incorrectly calculated — an allegation the state does not refute — and that his plea was therefore involuntary. As this Court reiterated in Williams v. State, 825 So.2d 994 (Fla. 4th DCA 2002), cause dismissed, 891 So.2d 554 (Fla.2002): “when a defendant enters a negotiated plea for a term of years relying upon an incorrectly calculated scoresheet, such sentence is not illegal if it does not exceed the statutory maximum.” Id. at 996. Yet, the defendant may file a rule 3.850 motion to seek withdrawal of his plea based on its involuntary character due to the incorrect scoresheet. Id.; see also Boerstler v. State, 622 So.2d 184 (Fla. 1st DCA 1993) (sentence imposed in accordance with valid plea agreement will not be rendered illegal due to scoresheet error; however, affirmance was without prejudice to appellant filing an appropriate motion for collateral relief as to the voluntariness of his plea). The state cites Ruff v. State, 840 So.2d 1145 (Fla. 5th DCA 2003), for the proposition that scoresheet errors are considered harmless when a sentence is the result of a negotiated plea agreement. In affirming in that case, however, the Fifth District did so “without prejudice to [appellant] to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising the issue of the voluntariness of his plea and seeking to withdraw from the plea should he conclude that to do so would be in his best interests.” Id. at 1147. Appellant has. done so here.

Because the trial court denied relief without attaching documents which would refute appellant’s fourth claim, this case is remanded to the trial court for either attachment of those portions of the record that would demonstrate the defendant is not entitled to any relief or an evidentiary hearing. In all other respects, we affirm the trial court’s denial of 3.850 relief.

GUNTHER, WARNER and MAY, JJ., concur.


text:
    Ida L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-218.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to raise this claim in a proper rule 3.850 motion.

FARMER, SHAHOOD and TAYLOR, JJ., concur.


author: WALLACE, Judge.

text:
    William E. FITZSIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3313.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

William E. Fitzsimmons raises two points in this appeal of his conviction for the armed robbery of a bank. Fitzsim-mons’ first point is without merit, and we will not comment on it further. On the second point, we hold that the trial court committed reversible error in permitting the admission of improper collateral crime evidence at Fitzsimmons’ trial. Accordingly, we reverse Fitzsimmons’ judgment and sentence, and we remand this case for a new trial.

FACTS AND PROCEDURAL HISTORY

At trial, the State presented evidence that a man wearing a disguise robbed a Regions Bank branch in Hudson on December 11, 2001. The “wheelman,” Lawrence Gillespie, waited outside the bank in a getaway car. Inside the bank, the “stickup man” threatened the bank employees and took cash from their custody and control. At trial, Gillespie testified for the State that Fitzsimmons was the disguise-wearing robber. The bank employees were not able to identify Fitzsimmons as the perpetrator of the crime.

Three days after the Regions Bank robbery, two undercover detectives observed Fitzsimmons and Gillespie making suspicious movements outside a SouthTrust Bank branch. This bank branch was also located in Pasco County. When Gillespie realized that he and Fitzsimmons were being watched, he informed Fitzsimmons. The two men left the area separately. Gillespie departed on foot, and Fitzsimmons drove away in a sport utility vehicle (SUV). The detectives followed Gillespie in an unmarked car. Shortly thereafter, Fitzsim-mons met Gillespie at a nearby gas station.

While Gillespie was getting into the SUV, the detectives requested assistance from a marked patrol unit. When the marked unit arrived, both police vehicles followed the SUV. Not long after the second vehicle arrived, a high-speed chase ensued, ending in a crash, and Gillespie surrendered. Fitzsimmons fled the crash scene on foot and stole a second vehicle. After Fitzsimmons crashed the second vehicle, he ran through a residential neighborhood and swam across a canal. Police ultimately found him hiding in a shed. Fitzsimmons was charged with armed robbery for the Regions Bank heist, and he was charged with grand theft auto and felony fleeing and eluding for his actions on December 14.

At a pretrial hearing, the trial court heard arguments concerning the State’s proposed use of evidence of uncharged crimes. The defense argued that Fitzsim-mons’ actions in “casing” the SouthTrust Bank were not sufficiently similar to the robbery of the Regions Bank to constitute Williams rule evidence. The State responded that the Regions Bank evidence and the SouthTrust Bank evidence were inextricably intertwined. The State also asserted that Fitzsimmons’ actions at the two banks were so similar that the South-Trust evidence should be admitted as Williams rule evidence. The trial court ruled that the “second casing [of the SouthTrust Bank] is so intertwined as to not allow [it] would be confusing to this jury.” After the hearing, the trial court entered an order that permitted the State to introduce evidence of Fitzsimmons’ actions at the SouthTrust Bank as “Williams Rule Evidence and/or inextricably intertwined evidence.”

On the morning of jury selection, the trial court severed the grand theft auto and felony fleeing and eluding charges from the armed robbery charge. However, the State notified the trial court that the evidence relating to the severed charges was going to be introduced because the trial court had granted the State’s Williams rule motion on this evidence. At the beginning of the State’s case-in-chief, the trial court granted Fitz-simmons a standing objection to all Williams rule evidence. On appeal, Fitz-simmons asserts that the trial court erred when it permitted the State to introduce evidence of Fitzsimmons’ actions outside the SouthTrust Bank and the prolonged police chase that led to Fitzsimmons’ arrest, including the theft of a second getaway vehicle.

DISCUSSION

A trial court’s decision to admit collateral crime evidence is reviewed for an abuse of discretion. Kulling v. State, 827 So.2d 311, 313 (Fla. 2d DCA 2002). A party may be permitted to introduce collateral crime evidence when it is relevant to prove a material fact; however, this type of evidence is inadmissible when it is relevant solely to prove bad character or propensity. § 90.404(2)(a), Fla. Stat. (2003). Because of the strict standard of relevancy that applies, collateral crime evidence is admissible as Williams rule evidence only if it is strikingly similar to. the charged crime and the similarity is so unique as to constitute “fingerprint” evidence. Kulling, 827 So.2d at 314.

The collateral crime evidence of Fitzsimmons’ actions outside the South-Trust Bank and the resulting police chase does not meet the strict standard of similarity required for admissibility as Williams rule evidence. The State presented no evidence that Fitzsimmons’ behavior outside the SouthTrust bank was similar to the perpetrator’s behavior at the Regions Bank. In addition, there was no testimony that Fitzsimmons left the South-Trust Bank in the same manner as the perpetrator had left the Regions Bank. The State did not establish that Fitzsim-mons’ actions at the SouthTrust Bank were so strikingly similar to the perpetrator’s actions at the Regions Bank that the evidence was properly admissible as Williams rule evidence.

Even if collateral crime evidence is inadmissible Williams rule evidence, collateral crime evidence may be admissible if it is inextricably intertwined with the crime charged. Griffin v. State, 639 So.2d 966, 968 (Fla.1994). Such evidence is admissible under section 90.402 because it is a relevant and inseparable part of the act that is in issue and it is necessary to admit the evidence to adequately describe the act. Id. at 968; Gray v. State, 873 So.2d 374, 377 (Fla. 2d DCA 2004). Nevertheless, Fitzsimmons’ actions outside the SouthTrust Bank and the subsequent police chase were not so intertwined with the Regions Bank robbery that it was necessary to describe them in order to accurately explain the Regions Bank robbery. The acts took place three days apart, and the State did not present evidence that the two incidents were part of a crime spree. The collateral crime evidence was not inextricably intertwined, and thus it was inadmissible.

The State argues that evidence of Fitzsimmons’ flight was admissible because it was indicative of Fitzsimmons’ consciousness of guilt. See Thomas v. State, 748 So.2d 970, 982-83 (Fla.1999); Virgo v. State, 931 So.2d 1010 (Fla. 4th DCA 2006). However, the State did not present this argument to the trial court when the admissibility of the collateral crime evidence was called into question. Thus the trial court did not have an opportunity to rule on whether the flight evidence would have been admissible to prove Fitzsimmons’ consciousness of guilt. Moreover, the defense never had an opportunity to be heard on this alternative theory of admissibility. Under these circumstances, it would be improper to rely on the “tipsy coachman” doctrine to affirm the trial court’s ruling on the admissibility of this evidence. See Robertson v. State, 829 So.2d 901, 906-09 (Fla.2002). In addition, the challenged evidence included extensive testimony about Fitzsimmons’ “casing” of the SouthTrust Bank before the flight occurred, as well as his theft of a motor vehicle during the flight itself. The trial court had previously severed the theft of a motor vehicle offense from the trial for the robbery at Regions Bank. Thus the evidence in question was not limited to Fitzsimmons’ flight from the police. We express no opinion on whether evidence of Fitzsimmons’ flight — if properly limited— might be admissible for the purpose of demonstrating his consciousness of guilt of the Regions Bank robbery that had occurred three days before.

The Florida Supreme Court has held that “the erroneous admission of irrelevant collateral crimes evidence ⅛ presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.’ ” Robertson, 829 So.2d at 913-14 (quoting Castro v. State, 547 So.2d 111, 115 (Fla.1989)). The harmless error test places the burden on the State to prove beyond a reasonable doubt that there is “no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Here, the State has not met its burden. Gillespie was the only witness who identified Fitzsimmons as the bank robber. Gillespie’s testimony was suspect because he had entered a plea bargain and expected to receive leniency from the State for his testimony. The State did not present any physical evidence that linked Fitz-simmons directly to the Regions Bank robbery. Fitzsimmons testified at trial and denied that he had committed the stickup at the Regions Bank branch. Fitzsim-mons’ testimony suggested that Gillespie had committed the December 11 offense on his own.

The inadmissible collateral crime evidence became a feature of the trial because of the number of witnesses who testified about it and because of the prosecutor’s repeated references to it during her closing argument. Under these circumstances, we are unable to conclude that the admission of the collateral crime evidence was harmless. Accordingly, we reverse Fitzsimmons’ judgment and sentence for armed robbery, and we remand for a new trial.

Reversed and remanded.

ALTENBERND, J., and DANAHY, PAUL W., Senior Judge, Concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: SUAREZ, J.

text:
    L.M., a juvenile, Petitioner, v. The STATE of Florida and Dale Dobuler, etc., Respondents.
    No. 3D06-2063.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2006.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for respondents.
    Before GREEN, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

This matter comes before this court on the juvenile/Petitioner’s Emergency Petition for Writ of Habeas Corpus for release from secure detention. Upon confession of error by the State, this court grants the Emergency Petition for Writ of Habeas Corpus and remands this matter to the trial court for a new detention hearing using a properly scored Risk Assessment Instrument.


text:
    Donald F. HAYWOOD, Sr. v. E.I. DU PONT DE NEMOURS AND COMPANY, et al.
    No. 2006-CC-1945.
    Supreme Court of Louisiana.
    Aug. 8, 2006.
   In re Eagle Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2003-16593; to the Court of Appeal, Fourth Circuit, No. 2006-C-0854.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. James TATE, et al.
    No. 2006-KK-1968.
    Supreme Court of Louisiana.
    Aug. 8, 2006.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 444-752; to the Court of Appeal, Fourth Circuit, No. 2006-K-1006.

Denied. Moot.


text:
    Betty Ann MYERS v. Paul Joseph MYERS.
    No. 2006-CJ-1856.
    Supreme Court of Louisiana.
    Aug. 9, 2006.
   In re Myers, Paul Joseph; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. G, No. 74,406-G; to the Court of Appeal, First Circuit, No. 2005 CU 2650.

Denied.

VICTORY, J., would grant and reinstate the trial court ruling.

TRAYLOR, J., would grant and reinstate the trial court ruling.


text:
    Traci Christine PAYNE v. Robert Charles PAYNE, Jr.
    No. 2006-CJ-1871.
    Supreme Court of Louisiana.
    Aug. 9, 2006.
   In re Payne, Robert Charles Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. I, No. 05-0253; to the Court of Appeal, Second Circuit, No. 41,049-CA.

Denied.

TRAYLOR, J., would grant and reinstate the trial court ruling.


text:
    STATE of Louisiana v. Adell ATKINS.
    No. 2006-KD-1985.
    Supreme Court of Louisiana.
    Aug. 11, 2006.
   In re Atkins, Adell; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 09-04-0709; to the Court of Appeal, First Circuit, No. 2006 KW 1589.

Stay Denied; Writ Denied.


text:
    Daphne LERAY, Glenn Leray and Elaine Leray v. NISSAN MOTOR CORPORATION, et al.
    No. 2006-CC-1969.
    Supreme Court of Louisiana.
    Aug. 14, 2006.
   In re Louisiana State of; Transportation & Devl. Dept, of; Entergy Louisiana L.L.C.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. B, No. 80852; to the Court of Appeal, First Circuit, No. 2006 CW 1332.

Stay denied; writ denied.

JOHNSON, J., would grant.

VICTORY, J., would grant.


text:
    Daphne LERAY, Glenn Leray and Elaine Leray v. NISSAN MOTOR CORPORATION, et al.
    No. 2006-CC-1972.
    Supreme Court of Louisiana.
    Aug. 14, 2006.
   In re Nissan Design America Inc.; Tokio Marine and Fire Insurance Company Ltd.; Nissan North America Inc.; Nissan Technical Center North America Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of La-fourche, 17th Judicial District Court Div. B, No. 80852; to the Court of Appeal, First Circuit, No. 2006 CW 1332.

Stay denied; writ denied.

JOHNSON, J., would grant.

VICTORY, J., would grant.


text:
    STATE ex rel. Tyron B. ASH v. STATE of Louisiana.
    No. 2006-KH-0408.
    Supreme Court of Louisiana.
    Aug. 16, 2006.
   In re Ash, Tyron B.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 357-523; to the Court of Appeal, Fourth Circuit, No. 2005-K-1294.

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 of Louisiana v. Daniel DOTY.
    No. 2006-KK-1480.
    Supreme Court of Louisiana.
    Aug. 16, 2006.
   In re Doty, Daniel; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 04-8157; to the Court of Appeal, Fifth Circuit, No. 06-K-239.

Denied.


text:
    STATE ex rel. Matthew W. COUNTS v. Honorable Carl V. SHARP.
    No. 2006-KH-0768.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Counts, Matthew W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. G, No. 00-2774F; to the Court of Appeal, Second Circuit, No(s). 40874-KH, 40608-KH.

Granted for the sole purpose of transferring the filing to the Court of Appeal, Second Circuit, for enforcement of its order in State v. Counts, 40,874 (La.App.2d Cir. 11/17/05), if it has not done so already.


text:
    STATE ex rel. Riley BRANTLEY, Jr. v. STATE of Louisiana.
    No. 2006-KH-0120.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Brantley, Riley; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. CR-4542-01.

Granted for the sole purpose of transferring the application to the district court for enforcement of its order granting relator’s motion for production of documents in which it directed the district court to provide him with a free copy of the investigation report, police report, plea bargain agreement form, and affidavit for probable cause, if it has not done so already. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE ex rel. Raymond LAUGAND v. STATE of Louisiana.
    No. 2005-KH-0637.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Laugand, Raymond; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 28, 2006; Parish of Orleans, Criminal District Court Div. G, No. 383-706; to the Court of Appeal, Fourth Circuit, No. 2004-K-2107.

Reconsideration denied.


text:
    STATE ex rel. Tommy BORDELON v. STATE of Louisiana.
    No. 2005-KH-0959.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Bordelon, Tommy; — Defendant(s); Applying for Reconsideration of this Court’s order dated April 17, 2006; Parish of Avoyelles, 12th Judicial District Court Div. A, Nos. 03-CR-117139A, 03-CR-118447 to the Court of Appeal, Third Circuit, Nos. 04-0490, 04-0491.

Reconsideration denied.

KNOLL, J., recused.


text:
    STATE ex rel. John D. PEARSON v. STATE of Louisiana.
    No. 2005-KH-1722.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Pearson, John; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 17, 2006; Parish of Jefferson, 24th Judicial District Court Div. F, No. 00-5403; to the Court of Appeal, Fifth Circuit, No. 05-KH-468.

Reconsideration denied.


text:
    STATE ex rel. David Lance WILSON v. STATE of Louisiana.
    No. 2005-KH-1798.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Wilson, David Lance; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 24, 2006; Parish of East Baton Rouge, 19th Judicial District Court Div. G, No. 03-00-682; to the Court of Appeal, First Circuit, No. 2004-KW-2692.

Reconsideration denied.


text:
    STATE ex rel. Theodore SMITH v. STATE of Louisiana.
    No. 2005-KH-1860.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Smith, Theodore; — Defendant(s); Applying for Reconsideration of this Court’s order dated March 24, 2006; Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 274151 to the Court of Appeal, First Circuit, No. 2005-KW-0348.

Reconsideration denied.

WEIMER, J., recused.


text:
    STATE ex rel. Gerald A. WORACHEK v. STATE of Louisiana.
    No. 2006-KH-1362.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Worachek, Gerald A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 11-00-176; to the Court of Appeal, First Circuit, No. 2006 KW 0057.

Application dismissed at relator’s request.

WEIMER, J., recused.


text:
    STATE ex rel. Mark JOHNSON v. STATE of Louisiana.
    No. 2006-KH-0096.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Johnson, Mark; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 18,791; to the Court of Appeal, First Circuit, No. 2005 CW 0600.

Denied.


text:
    STATE ex rel. Mark CHEATHAM v. STATE of Louisiana.
    No. 2006-KH-0104.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Cheatham, Mark; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 429,797; to the Court of Appeal, First Circuit, No. 2005 KW 1067.

Denied.

CALOGERO, C.J., recused.


text:
    STATE ex rel. Michael WARDLAW v. STATE of Louisiana.
    No. 2006-KH-0107.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Wardlaw, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 2-95-1299; to the Court of Appeal, First Circuit, No. 2005-KW-1447.

Denied.


text:
    STATE ex rel. Mark COLBERT v. STATE of Louisiana.
    No. 2006-KH-0111.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Colbert, Mark; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 03-2101; to the Court of Appeal, Fifth Circuit, No. 05-KH-723.

Denied.


text:
    STATE ex rel. James J. BARBEE v. STATE of Louisiana.
    No. 2006-KH-0243.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Barbee, James J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. F, No. 02-159638; to the Court of Appeal, First Circuit, No. 2005 KW 1286.

Denied.


text:
    Raymond ROCHON v. Richard STALDER, Burl Cain, Department of Corrections, State of Louisiana Disciplinary Board.
    No. 2006-CI-0252.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Rochon, Raymond; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 520,067; to the Court of Appeal, First Circuit, No. 2005 CW 1431.

Denied.


text:
    STATE ex rel. Haymon B. ADAMS v. STATE of Louisiana.
    No. 2006-KH-0259.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Adams, Haymon B.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Desoto, 11th Judicial District Court Div. A, No. 027693; to the Court of Appeal, Second Circuit, No. 39,-792-KA.

Denied.


text:
    STATE ex rel. Duvander HURST v. STATE of Louisiana.
    No. 2006-KH-0260.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Hurst, Duvander; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 408-643; to the Court of Appeal, Fourth Circuit, No. 2005-K-1176.

Denied.


text:
    STATE ex rel. Earl WEAVER v. STATE of Louisiana.
    No. 2006-KH-0261.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Weaver, Earl; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 395-683; to the Court of Appeal, Fourth Circuit, No. 2005-K-0940.

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. Lenny LANDRY v. STATE of Louisiana.
    No. 2006-KH-0262.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Landry, Lenny; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 01-2659; to the Court of Appeal, Fifth Circuit, No. 05-KH-769.

Denied.


text:
    STATE ex rel. Darren D. SHIVERS v. STATE of Louisiana.
    No. 2006-KH-0264.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Shivers, Darren D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 175,533; to the Court of Appeal, Second Circuit, No. 40722-KH.

Denied.


text:
    STATE ex rel. Anthony GAMBINO v. STATE of Louisiana.
    No. 2006-KH-0265.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Gambino, Anthony; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 01-0626; to the Court of Appeal, Fifth Circuit, No. 05-KH-707.

Denied.


text:
    STATE ex rel. Claude ROBERSON, Jr. v. STATE of Louisiana.
    No. 2006-KH-0266.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Roberson, Claude Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 11-93-278; to the Court of Appeal, First Circuit, No. 2005 KW 1820.

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. Danial PERRILLOUX v. STATE of Louisiana.
    No. 2006-KH-0300.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Perrilloux, Danial; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 00-0423; to the Court of Appeal, Fifth Circuit, No. 05-KH-776.

Denied.


text:
    STATE ex rel. Robert BROADWAY v. STATE of Louisiana.
    No. 2006-KH-0323.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Broadway, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Red River, 39th Judicial District Court Div. A, No. 39,794; to the Court of Appeal, Second Circuit, No. 40554-KH.

Denied.


text:
    STATE ex rel. Donald R. SIMMONS v. STATE of Louisiana.
    No. 2006-KH-0324.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Simmons, Donald R.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, Nos. 7-00-151, 7-00-152, 8-00-594, 8-00-595; to the Court of Appeal, First Circuit, No. 2005 KA 1068.

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. Larry MCGUIRE v. STATE of Louisiana.
    No. 2006-KH-0327.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re McGuire, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. I, No. 227-940; to the Court of Appeal, First Circuit, No. 2005 KW 1358.

Denied.


text:
    STATE ex rel. Patrick M. ARD v. STATE of Louisiana.
    No. 2006-KH-0330.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Ard, Patrick M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. D, No. 02 CR 10 84318; to the Court of Appeal, First Circuit, No. 2005 KW 0782.

Denied.


text:
    STATE ex rel. Donald STELLY v. STATE of Louisiana.
    No. 2006-KH-0331.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Stelly, Donald J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 43,118-F.

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. Israel DAVIS v. STATE of Louisiana.
    No. 2006-KH-0338.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Davis, Israel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 244,921; to the Court of Appeal, First Circuit, No. 2005 KW 0979.

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

WEIMER, J., recused.


text:
    STATE ex rel. Jerry L. SYLVE v. STATE of Louisiana.
    No. 2006-KH-0339.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Sylve, Jerry L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, Nos. 278195, 278196; to the Court of Appeal, First Circuit, No. 2005 KW 0860.

Denied.


text:
    STATE ex rel. Melvin MINGO v. STATE of Louisiana.
    No. 2006-KH-0340.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Mingo, Melvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, No. 8256; to the Court of Appeal, First Circuit, No. 2005 KW 1448.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Anthony SPEARS v. STATE of Louisiana.
    No. 2006-KH-0341.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Spears, Anthony; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 213,274; to the Court of Appeal, Second Circuit, No. 40,-786-KH.

Denied.


text:
    STATE ex rel. Howard JACKSON v. STATE of Louisiana.
    No. 2006-KH-0342.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Jackson, Howard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 96-6661; to the Court of Appeal, Fifth Circuit, No. 05-KH-850.

Denied.


text:
    STATE ex rel. Leonard EVERY v. STATE of Louisiana.
    No. 2006-KH-0343.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Every, Leonard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 247,896; to the Court of Appeal, First Circuit, No. 2005 KW 1757.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Ronald O. CLESI v. STATE of Louisiana.
    No. 2006-KH-0347.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Clesi, Ronald O.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 34,5005.

Denied. Moot.


text:
    STATE ex rel. William PRESTON v. STATE of Louisiana.
    No. 2006-KH-0348.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Preston, William; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 09-01-609; to the Court of Appeal, First Circuit, No. 2005 KW 1951.

Denied.


text:
    STATE ex rel. Calvin RICHARDSON v. STATE of Louisiana.
    No. 2006-KH-0350.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Richardson, Calvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. B, No. 57,923; to the Court of Appeal, Third Circuit, No. KH 05-00793.

Denied.


text:
    STATE ex rel. Kenneth ROBICHEAUX v. STATE of Louisiana.
    No. 2006-KH-0352.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Robicheaux, Kenneth; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 01-2469; to the Court of Appeal, Fifth Circuit, No. 05-KH-841.

Denied.


text:
    STATE ex rel. Michael W. GLENN v. STATE of Louisiana.
    No. 2006-KH-0354.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Glenn, Michael W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 152,967; to the Court of Appeal, Second Circuit, No. 40477-KH.

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


text:
    STATE ex rel. Abe J. LINDSEY v. STATE of Louisiana.
    No. 2006-KH-0356.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Lindsey, Abe J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 407-526; to the Court of Appeal, Fourth Circuit, No. 2005-K-1185.

Denied.


text:
    STATE ex rel. Jamie Dale SMITH v. STATE of Louisiana.
    No. 2006-KH-0357.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Smith, Jamie Dale; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 01-F0457; to the Court of Appeal, Second Circuit, No. 40617-KH.

Denied.


text:
    STATE ex rel. James L. WASHINGTON v. STATE of Louisiana.
    No. 2006-KH-0309.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Washington, James L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 92-CR-081100; to the Court of Appeal, First Circuit, No. 2005-KW-1826.

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.

WEIMER, J., recused.


text:
    STATE ex rel. Harold CHAPMAN v. STATE of Louisiana.
    No. 2006-KH-0367.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Chapman, Harold; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Grant, 35th Judicial District Court Div. 0, No. 95-281; to the Court of Appeal, Third Circuit, No. KH 05-01116.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Michael WARDLAW v. STATE of Louisiana.
    No. 2006-KH-0368.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Wardlaw, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 2-95-1299; to the Court of Appeal, First Circuit, No. 2005-KW-1447.

Denied.


text:
    STATE ex rel. Larry WALKER v. STATE of Louisiana.
    No. 2006-KH-0369.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Walker, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 347883-1 “B”; to the Court of Appeal, First Circuit, No. 2005 KW 1312.

Denied.


text:
    STATE ex rel. Calvin COTTON, Sr. v. STATE of Louisiana.
    No. 2006-KH-0370.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Cotton, Calvin Sr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 103,327; to the Court of Appeal, First Circuit, No. 2004 KA 2762.

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


text:
    Joseph CARTER v. STATE of Louisiana.
    No. 2006-KH-0371.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Carter, Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 2-00-737; to the Court of Appeal, First Circuit, No(s). 2005 KW 1821.

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


text:
    STATE ex rel. Calvin Edward LEWIS v. STATE of Louisiana.
    No. 2006-KH-0376.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Lewis, Calvin Edward; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. B, No. 43,995.

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. Elbert WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-0377.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Williams, Elbert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 176,627; to the Court of Appeal, Second Circuit, No. 40456-KH.

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


text:
    STATE ex rel. Frederick BARROW v. STATE of Louisiana.
    No. 2006-KH-0379.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Barrow, Frederick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 98-148742; to the Court of Appeal, First Circuit, No. 05-KW-0947.

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. Preston G. DEMOUCHET, Jr. v. STATE of Louisiana.
    No. 2006-KH-0381.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Demouchet, Preston G. Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. I, No. 31681.

Denied. Time-barred and repetitive. 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; cf. La.C.Cr.P. art. 930.4(D).


author: JOHNSON, J.,

text:
    STATE ex rel. Benjamin LEE v. STATE of Louisiana.
    No. 2006-KH-0382.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Lee, Benjamin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 414-094; to the Court of Appeal, Fourth Circuit, No. 2005-K-1060.

Denied.

JOHNSON, J.,

would grant and transfer this application to the district court for consideration of these claims along with consideration of the application for post-conviction relief.


text:
    STATE ex rel. Rogers ATKINS v. STATE of Louisiana.
    No. 2006-KH-0383.
    Supreme Court of Louisiana.
    Aug. 18, 2006.
   In re Atkins, Rogers; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 82-384A; to the Court of Appeal, Second Circuit, No. 40822-KH.

Denied. Time-barred and repetitive. 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; cf. La.C.Cr.P. art. 930.4(D).