text:
    Gary PEARCE, Appellant, v. Jeanette DESCHESNE, Appellee.
    No. 4D05-2983.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.

      Robert Garven, Coral Springs, and Charles Mancuso of Thomas & Pearl, Fort Lauderdale, for appellant.
    Nancy W. Gregoire and Matthew D. Klein of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., Fort Lauderdale, for appellee.
   FARMER, J.

While consuming a half-dozen alcoholic drinks — one of which was “filled all the way up to the top” with vodka — prepared and given to him by defendant — plaintiff was also engaged in trimming her trees, a job he was hired and paid to do by defendant. The job encompassed some high branches, accessible only by climbing the tree and reaching them with a chain saw. Three hours into the job, he was admittedly intoxicated if not “drunk” — as he understands the terminology. Attempting to cut one such branch, he fell to the ground and suffered serious injuries. When he sued her in negligence, she defended by claiming that his negligence caused or contributed to his injuries. After he gave deposition testimony admitting intoxication (but not drunkenness), she moved for summary judgment on liability. The trial judge agreed with her, rejecting plaintiffs argument that with comparative negligence, only the jury could apportion the relative fault. We reverse.

Section 768.36(2), Florida Statutes (2003), reads as follows:

In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:
(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiffs normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and
(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm, [e.s.]

Defendant argued that this statute entitles her to a summary judgment on liability because plaintiffs intoxication was the sole cause of his injuries.

The statute plainly says, however, that it is the finder of fact who must determine whether plaintiff was more than 50 percent at fault for his injuries. A judge considering a motion for summary judgment is most decidedly not a “trier of fact.” Indeed, in this circumstance the judge is confined to searching the record for conflicting evidence to be submitted to a jury, and only in the absence of such evidence may the judge make a ruling of law that summary judgment is proper. See Richmond v. Florida Power & Light Co., 58 So.2d 687, 688 (Fla.1952) (trial judge’s authority on motion for summary judgment is to decide legal question, not resolve disputes of material facts); Cummins v. Allstate Indemnity Co., 732 So.2d 380, 382-83 (Fla. 4th DCA 1999) (“Summary judgment may not be used as a substitute for trial. If the affidavits and other evidence raise any doubt as to any issue of material fact then a summary judgment may not be entered.”); Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995) (when defendant moves for summary judgment, neither trial court nor appellate court determines whether plaintiff can prove cause of action alleged; function of court is solely to determine whether as matter of law record presented in support of summary judgment conclusively shows that plaintiff cannot prove claim alleged).

When apportionment of fault between the plaintiff and a defendant under comparative negligence is a contested issue, it is the trier of fact that must do the apportioning, not the judge deciding a legal issue. As one court explained:

“Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiffs own negligence is in issue. We do not here express an opinion as to whether a directed verdict should ever be granted where the negligence of both parties is at issue. We do, however, believe that such eases will be extremely rare.”

Petroleum Carrier Corp. v. Gates, 330 So.2d 751, 752 (Fla. 1st DCA 1976); see also Howell v. Winkle, 866 So.2d 192, 195 (Fla. 1st DCA 2004) (when “there is evidence supporting an inference of comparative fault on the part of the plaintiff, issue of comparative negligence should be submitted to jury”). As Gates indicates, only in the rare case when there is simply no factual dispute as to apportionment of negligence, does the trial judge have the authority to make a ruling on the issue as a matter of law.

We stress that section 768.36(2) does not purport to make trial judges the sole authority for apportioning comparative fault. By its clear terms, it directs trial judges to apply the trier of fact’s apportionment of fault. This is true where, as here, the deposition testimony of plaintiff as to precisely how much he was at fault is not clearly to the effect that his intoxication was the sole cause of his injuries.

Reversed.

STONE and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Xavier FUTRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3616.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Xavier Futrell, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Xavier Futrell appeals from the trial court’s order summarily denying his rule 3.850 motion for postconviction relief. We affirm the order in part, as all claims except claim eight are legally insufficient to warrant relief. As to claim 8, Futrell argued that his counsel was ineffective for making several comments in opening statement which were prejudicial and tantamount to admissions of guilt. The State’s response to the motion failed to attach any portions of the record refuting this claim, nor did the trial court’s order. In its response to our order to show cause, the state now has attached the opening statement which appears to show that Futrell is entitled to no relief, but those portions were not attached to the state’s response or incorporated in the order on appeal. See Fla. R.Crim. P. 3.850(d). Therefore, we must reverse and remand to the trial court for reconsideration of ground eight of the motion and for the attachment of records that conclusively refute the allegations therein.

Affirmed in part; Reversed in part and Remanded.

WARNER, POLEN, JJ., and DELL, JOHN W., Senior Judge, concur.


text:
    Anthony D. WOODSIDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3567.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. However, we remand the case to the trial court with directions to enter a corrected written judgment, reflecting that the appellant was found guilty after having been tried, rather than reflecting that he entered a plea of guilty.

FARMER, SHAHOOD and GROSS, JJ., concur.


text:
    A.K., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3940.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.

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

Affirmed. See J.P.N. v. State, 931 So.2d 1066 (Fla. 4th DCA 2006).

GUNTHER, HAZOURI and MAY, JJ., concur.


text:
    Sidney CARVALHO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1367.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Sidney Carvalho, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Sidney Carvalho, appeals the summary denial of his rule 3.850 motion. Carvalho was charged by information with count I, DUI manslaughter/unlawful blood alcohol; count II, DUI manslaughter/impaired faculties; count III, leaving the scene of an accident involving death; and count IV, driving while license suspended causing death. In exchange for his no contest plea on counts II and III, the State agreed to dismiss counts I and IV.

In his post-conviction motion, Car-valho alleged his plea was involuntary because (1) he did not understand he could not be convicted of all four counts, (2) he received no benefit from the State’s agreement to drop counts I and IV, and (3) he was misinformed about the maximum sentence he could receive if he went to trial. According to Carvalho, the trial court told him he could be sentenced up to thirty-five years in prison and his counsel said if he did not accept the State’s plea offer, then he would likely lose at trial and could expect to receive the thirty-five-year sentence. Carvalho further stated that his counsel misadvised him that the State’s offer to dismiss two counts would significantly reduce his maximum sentence and that had he not received this misadvice and had he known he could not be convicted of all four offenses, he would have elected a jury trial.

Carvalho is correct in that he could not be convicted of all four counts for causing the death of a single victim. See State v. Cooper, 634 So.2d 1074 (Fla.1994). Likewise, the maximum sentence he could receive was only thirty years in prison. See §§ 316.027(1)(b), 316.193(3)(c)3.a., Fla. Stat. (2002); Rodriguez v. State, 875 So.2d 642 (Fla. 2d DCA2004).

We conclude that Carvalho has stated a legally sufficient claim. The circuit court’s order is therefore reversed and this cause is remanded for an evidentiary hearing or attachment of portions of the record that conclusively refute appellant’s claim.

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


text:
    Paul FABIAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-311.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Loren D. Rhoton of Rhoton & Hayman, P.A., Tampa, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Paul Fabian moved to vacate his plea which disposed of violation of probation charges and resulted in a statutory-maximum fifteen-year sentence. He argues that trial counsel was ineffective for failing to point out to the trial court that it could impose the violation of probation related sentence concurrent with an existing Orange County sentence. See State v. Bell, 854 So.2d 686 (Fla. 5th DCA 2003), rev. denied, 866 So.2d 1212 (Fla.2004). Our review of the record provided reveals that the trial court was of the view that it lacked authority to do so.

Fabian entered into the plea nonetheless, as he was under the impression, which went uncorrected, that the Orange County sentence provided for concurrent sentencing. We find Fabian’s claim legally sufficient and remand for either the attachment of portions of the record conclusively refuting the claim or for an eviden-tiary hearing. See Grosvenor v. State, 874 So.2d 1176 (Fla.), cert. denied, 543 U.S. 1000, 125 S.Ct. 627, 160 L.Ed.2d 458 (2004); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

GUNTHER, HAZOURI and MAY, JJ., concur.


text:
    Wade FARLEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D04-4088, 4D04-4089, 4D04-4097.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A., Palm Springs, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This appeal is affirmed without prejudice for appellant to raise an ineffective assistance of counsel claim in a motion pursuant to Florida Rule of Criminal Procedure 3.850.

GUNTHER, HAZOURI and MAY, JJ., concur.


text:
    Timothy HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3795.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005); Washington v. State, 895 So.2d 1141 (Fla. 4th DCA 2005); Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003) (en banc).

WARNER, KLEIN and GROSS, JJ., concur.


text:
    E.D.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2532.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, Chief Appellate Division, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the finding of guilt against appellant. We reverse the restitution order and remand to the trial court for a restitution hearing, after which the court may impose restitution. See A.B. v. State, 910 So.2d 415 (Fla. 4th DCA 2005); K.D. v. State, 779 So.2d 468 (Fla. 2d DCA 2000).

Affirmed in part, reversed in part, and remanded.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Wenzel Anthony JOSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1499.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Carey Haughwout, Public Defender, and Frederick Arthur Mullins, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Carratelli v. State, 915 So.2d 1256, 1259 (Fla. 4th DCA 2005).

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


text:
    FLORIDA BUSINESS BROKERS, INC., American Investments, Inc., d/b/a Brevard Business Brokers, and Frederick J. Maerkle, Appellants, v. Bruce D. DEARY, Appellee.
    No. 4D05-2659.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Thomas C. Houck, Cocoa Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WARNER, KLEIN and GROSS, JJ., concur.


author: MAY, J.

text:
    Johnny ORNIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1852.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for lewd and lascivious battery and simple battery. He argues that his double jeopardy right was violated when the court adjudicated and sentenced him for both lewd and lascivious battery and simple battery for the same conduct. We agree and reverse.

The evidence revealed that the victim visited the defendant’s house on the date of the incident so that the defendant’s sister could style her hair. When the sister left the house to run an errand, the defendant entered the bedroom where the victim was sitting, sat down next to her, and began feeling her breasts. He then unzipped her dress, pushed her back onto the bed, and began having sex. The victim told him to stop, but he didn’t. Within a few minutes, the defendant’s sister returned to the house, causing the defendant to stop and leave the bedroom.

The State charged the defendant with one count of sexual battery on a person 12 years of age or older and one count of lewd or lascivious battery. The jury found the defendant guilty of battery, a lesser included offense of sexual battery, and lewd or lascivious battery as charged. The court adjudicated the defendant guilty on both counts and concurrently sentenced him to one year of county jail with 364 days credit for the battery charge and eighty-six (86) months imprisonment with 478 days credit to be followed by two years of sex offender probation for the lewd and lascivious battery count.

The defendant argues that because the two statutes under which he was charged define the same unlawful conduct, and he was tried for a single offending act, the court violated his right against double jeopardy by sentencing him for both. The State responds that each offense contains separate elements of proof and different facts support those elements. The State also argues the defendant had sufficient opportunity to form a new criminal intent for each offense, defeating the defendant’s double jeopardy claim.

“The legality of a sentence is a question of law and is subject to de novo review.” Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005).

Our federal and state constitutions prevent the government from subjecting a person to being criminally tried twice for the same conduct. Amends. V, XIV, U.S. Const.; Art. I, § 9, Fla. Const. This is a fundamental right that may be raised for the first time on appeal. Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003). Florida has codified this right in section 775.021, Florida Statutes (2003).

In this case, the State charged the defendant with sexual battery on a person 12 years of age or older and lewd and lascivious battery on a person 12 years of age or older but less than 16. “ ‘Sexual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object ....” § 794.011(l)(h), Fla. Stat. (2003). When a sexual battery is committed on “a person 12 years of age or older, without that person’s consent,” and without the use of “physical force and violence likely to cause personal injury,” section 794.011(5), Florida Statutes (2003), is violated. The lewd and lascivious battery statute defines sexual activity similarly to sexual battery. It then refines the crime when the defendant “engages in sexual activity with a person 12 years of age or older but less than 16 years of age .... ” § 800.04(l)(a), (4), Fla. Stat. (2003).

If the jury had found the defendant guilty of both sexual battery and lewd or lascivious battery, Tannihill would require a reversal because the sentences would violate double jeopardy. The fact that the jury actually acquitted the defendant of sexual battery, and found him guilty of the lesser-included offense of battery does not alter the outcome.

The State charged, the jury found, and the facts support a single act of sexual battery/sexual activity. For this reason, we reverse and remand the case to the trial court to vacate the defendant’s battery conviction and to re-sentence the defendant accordingly.

Reversed and Remanded.

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


text:
    In re Brian P. BRANCATO.
    No. 2006-B-0124.
    Supreme Court of Louisiana.
    May 26, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

I,This disciplinary matter arises from three sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Brian P. Brancato, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed three sets of formal charges against respondent. The first set, bearing the disciplinary board’s docket number 03-DB-034, was filed on June 13, 2003 and consists of four counts of misconduct. The second set, bearing the disciplinary board’s docket number 04-DB-073, was filed on August 12, 2004 and consists of four counts of misconduct. The third set, bearing the disciplinary board’s docket number 04-DB-083, was filed on November 3, 2004 and consists of two counts of misconduct.

The first set of formal charges was considered by a hearing committee separately from the second and third sets, which were consolidated by order of the hearing committee chair dated November 18, 2004. On March 9, 2005, all three matters were consolidated by order of the disciplinary board. On January 17, 2006, the board filed in this court a single recommendation of discipline encompassing all three sets of formal charges.

UOS-DB-OSJp

Count I — The YoungfWhitted Matter

In September 1999, Lois Young retained respondent to seek post-conviction relief on behalf of her son, Mark Whitted. Respondent filed an application for post-conviction relief, which the trial court denied. Thereafter, respondent neglected the matter by failing to follow through with an appeal of the trial court’s decision. He also failed to adequately communicate with either Ms. Young or Mr. Whitted about the status of the matter.

The ODC alleged that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 1.4 (failure to communicate with a client) of the Rules of Professional Conduct.

Count II — The Knotts Matter

In November 2001, Jason Knotts retained respondent to obtain an expungement of his felony theft conviction. Thereafter, respondent failed to respond to Mr. Knotts’ numerous requests for updates about the status of the matter. In March 2002, respondent finally began working on the matter and learned that an expungement would not be possible; rather, he would need to file a motion to set aside the verdict and a motion for a new trial. Respondent apparently tried to contact Mr. Knotts on one occasion to explain the circumstances but was unable to reach him. Thereafter, he neglected the matter.

The ODC alleged that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

| zCount III — The Thomas Matter

In January 2001, Antoine Thomas retained respondent to seek post-conviction relief on his behalf. Mr. Thomas provided respondent with his file, but respondent apparently informed his client that he needed $250 to review the case and determine if any meritorious claims existed. Mr. Thomas’ family did not pay respondent the $250 for approximately a year, during which time Mr. Thomas received several adverse judgments. Both before and after the fee was paid, respondent did no work on the case. He also failed to respond to requests for updates about the status of the matter, prompting Mr. Thomas to file a complaint with the ODC.

The ODC alleged that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Count TV— The Stubin/Campbell Matter

In August 2002, Wadra Stubin retained respondent to seek post-conviction relief on behalf of Edward Campbell. Respondent neglected the matter and failed to adequately communicate with Ms. Stubin and Mr. Campbell. In December 2002, Ms. Stubin filed a complaint against respondent with the ODC. Despite receiving notice of the complaint, respondent failed to respond. He also failed to appear to give a sworn statement despite being personally served with a subpoena.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

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

Hearing Committee Recommendation

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

The Young/Whitted Matter — Ms. Young, the mother of Mr. Whitted, who is legally blind, retained respondent to handle Mr. Whitted’s post-conviction relief. Ms. Young paid respondent either $2,000 or $3,000 of a total $5,000 fee. Ms. Young repeatedly requested status updates from respondent but. received no reply. Respondent admitted to the ODC that he neglected the matter, expressing remorse and a desire to resolve the matter. He also indicated that he had no file materials in this matter because of a fire at his office. Respondent neglected the matter and failed to communicate with his client. However, there is no evidence that respondent caused his client any harm.

The Knotts Matter — Mr. Knotts retained respondent to handle an expungement. Mr. Knotts’ grandmother paid respondent $460 of the $500 fee. Mr. Knotts indicated he called respondent repeatedly between November 2001 and March 2002, but that respondent did not return his calls. Mr. Knotts did speak to respondent on two occasions, at which time respondent told Mr. Knotts he would obtain the [.^expungement within two weeks. Ultimately, Mr. Knotts had another attorney write to respondent to request immediate action or a refund of the $460. Respondent admitted that, due to personal difficulties, he did not begin working on the matter until March 2002. Thereafter, he indicated he discovered difficulties in obtaining the expungement. He also indicated he attempted to bring the difficulties to Mr. Knotts’ attention but was unable to reach him. Thereafter, he allowed the case to languish but expressed remorse and agreed to refund the fee. Respondent neglected the matter and failed to communicate with his client. However, there is no evidence that respondent caused his client any harm.

The Thomas Matter — In January 2001, Mr. Thomas, an Angola inmate, retained respondent for $250 to review his file and determine if post-conviction relief was appropriate. Respondent took no action in the matter. In May 2002, Mr. Thomas requested that respondent return his file so he could pursue post-conviction relief. Respondent did not return the file. Respondent indicated he did not work on the matter for a year because he had not been paid. However, after he was paid, he neglected the matter. He agreed to refund the $250 and return Mr. Thomas’ file. As of January 2003, respondent still had not done so. Respondent’s failure to return Mr. Thomas’ file caused him harm in that he had to seek post-conviction relief pro se and without the benefit of his file materials. Respondent neglected the matter and failed to communicate with his client. He did not express remorse or make restitution.

The Stubin/Campbell Matter — In August 2002, Ms. Stubin entered into a contract with respondent’s law firm to handle Mr. Campbell’s post-conviction relief. Ms. Stubin paid respondent $1,000 of the $3,000 fee. Respondent initially advised Ms. Stubin he would file for post-conviction relief by August 23, 2002. When Ms. Stubin later inquired about the status, respondent indicated he would file for relief by ^September 23, 2002, which was the deadline. Both Ms. Stubin and Mr. Campbell asserted nothing was filed by respondent, which caused Mr. Campbell to lose his chance to seek review of his conviction. Respondent’s conduct caused harm to Mr. Campbell. He neglected Mr. Campbell’s legal matter and failed to communicate with his client. He did not express remorse or make restitution. Respondent also failed to respond to the ODC’s notice of the complaint and failed to appear to give a sworn statement pursuant to a subpoena.

Based on these findings, the committee determined that respondent violated Rules 1.3 and 1.4 “in repetitious and continuing fashion with each client.” Respondent violated duties owed to his clients and as a professional. In his lack of diligence, respondent acted negligently in all four matters. However, in the Thomas matter, he acted intentionally in failing to take action before being paid. His failure to communicate with his four clients was knowing. His failure to cooperate with the ODC was knowing or intentional. His conduct caused harm to Mr. Thomas and Mr. Campbell. The committee determined that the baseline sanction is a period of suspension according to the ABA’s Standards for Imposing Lawyer Sanctions.

In aggravation, the committee found a pattern of misconduct, multiple offenses, and indifference to making restitution. As mitigating factors, the committee found the absence of a prior disciplinary record, absence of a dishonest or selfish motive, and personal or emotional problems.

|7Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

04-DB-073

Count I — The Brown Matter

In April 2002, Richard Brown retained respondent to obtain the return of an engagement ring, giving him a $500 deposit. Thereafter, respondent neglected the matter and failed to adequately communicate with his client. Mr. Brown attempted to contact respondent on several occasions to obtain a status update, including sending letters, but was unsuccessful. Therefore, Mr. Brown filed a complaint against respondent with the ODC. Despite receiving notice of the complaint, respondent failed to respond. He also failed to appear to give a sworn statement despite being personally served with a subpoena.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count II — The Lingle Matter

Respondent was retained to represent Scott Lingle in a criminal matter. Mr. Lingle’s mother subsequently requested that respondent return her son’s file. Ms. Lingle made several attempts to contact respondent so she could obtain the file, including sending a certified letter, but was unsuccessful. Mr. Lingle eventually filed a complaint against respondent with the ODC, which was referred to the Louisiana State Bar Association’s Practice Assistance Program. In October 2003, respondent informed the practice assistance counsel that he would forward the file to Mr. DLingle’s former attorney. However, he failed to do so, and the matter was referred back to the ODC. Thereafter, respondent failed to cooperate with the ODC in its investigation.

The ODC alleged that respondent’s conduct violated Rules 1.3 and 8.1(c) of the Rules of Professional Conduct.

Count III — The McMullen Matter

In January 2004, Robert McMullen retained respondent to seek post-conviction relief on his behalf. Respondent appeared in court for Mr. McMullen, but the post-conviction relief was denied. Mr. McMullen gave respondent his IRS refund check, with the understanding that respondent would cash the check, retain his fee, and deposit the balance into Mr. McMul-len’s inmate account. Respondent failed to deposit the balance into Mr. McMullen’s account and has not accounted for the funds received. He also failed to respond to requests for information from Mr. McMullen and his family. As such, Mr. McMullen filed a complaint against respondent with the ODC. Despite receiving notice of the complaint, respondent failed to respond.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count IV — The Davis Matter

In January 2002, respondent was appointed to handle Robert Davis’ criminal case. After Mr. Davis pled guilty in March 2002, he tried unsuccessfully to contact respondent to discuss his case, leaving messages and sending letters.

|nThe ODC alleged that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

0I-DB-083

Count I — The Robinson Matter

In April 2001, Hugh Robinson hired respondent to handle a criminal appeal in federal court, paying him $2,500. Respondent filed for an extension but failed to pay the filing fee. He did not file any other pleadings on Mr. Robinson’s behalf. As such, Mr. Robinson’s appeal was dismissed. Respondent also failed to communicate with his client. In December 2001, Mr. Robinson filed a complaint against respondent with the ODC. Thereafter, respondent signed a promissory note to repay the $2,500, and the matter was referred by the ODC to diversion. However, respondent failed to meet all requirements of the diversion program. Thus, the matter was referred back to the ODC. As of March 2004, respondent still had not repaid the $2,500.

The ODC alleged that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Count II — The Smith Matter

In August 2002, Johnell Smith hired respondent to handle his criminal matter, paying him approximately $4,000. The matter was resolved with a plea. Mr. Smith was not satisfied with respondent’s handling of the case and filed a complaint against him with the ODC. Mr. Smith alleged that respondent failed to communicate with him following the plea, neglected the case by failing to file the proper motions, and mishandled the plea, causing him to receive the wrong sentence and no credit for time served. Despite receiving notice of the complaint, respondent failed to respond. He |10also failed to appear to give a sworn statement despite being personally served with a subpoena.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

0I-DB-073 & Oi-DB-083

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

Hearing Committee Recommendation

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

The Brown matter — Respondent neglected his client’s legal matter and failed to cooperate with the ODC in its investigation of Mr. Brown’s complaint.

The Lingle matter — Respondent refused to return his client’s file. When a complaint was filed with the ODC, respondent verbally agreed to transfer the file to the client’s new attorney. There is no evidence that the file was transferred, and thereafter, respondent failed to cooperate with the ODC in its investigation.

The McMullen matter — Respondent appeared in court on behalf of his client, but the post-conviction relief was denied. Respondent was advanced legal fees and In was supposed to retain his earned fees, then deposit the balance into his client’s “inmate account.” Respondent did not deposit the balance into his client’s account and did not account for the funds received. He also failed to cooperate with the ODC in its investigation of Mr. McMullen’s complaint.

The Davis matter — Respondent was appointed to assist a client in a criminal matter in January 2002. The client pled guilty in March 2002. Thereafter, despite calling, leaving messages, and sending letters, the client was unsuccessful in trying to contact respondent to discuss his case.

The Robinson matter — Respondent was paid $2,500 to handle a criminal appeal in federal court. Respondent did not communicate with his client and failed to file any pleadings on his client’s behalf other than filing for an extension, which was denied because respondent failed to pay the filing fee. Respondent signed a promissory note to repay the $2,500; however, he still has not paid the money back.

The Smith matter — Respondent was retained in August 2002 and paid $4,000 to represent a client in a criminal matter. The case was resolved with a plea. The client complained that respondent failed to communicate with him after the plea, neglected his case, failed to file the proper pleadings, and mishandled the plea, which resulted in the client not getting the proper sentence or credit for time served. Respondent also failed to cooperate with the ODC in its investigation of Mr. Smith’s complaint.

Based on these findings, the committee determined that respondent engaged in a pattern of misconduct, resulting in repeated violations of the Rules of Professional Conduct. He intentionally violated duties owed to his clients. He also intentionally refused to respond to the ODC’s communications. He has shown no remorse, and his only mitigating factor is an absence of a prior disciplinary record.

ligUnder these circumstances, the committee recommended that respondent be permanently disbarred. The committee also recommended that “if [respondent] can be found, he be ordered to make restitution to the clients he has bilked.”

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

Disciplinary Board Recommendation

OS-DB-OSk, 01p-DB-073 & Oi-DB-083

After reviewing the consolidated matters, the disciplinary board made the following findings and determinations:

03-DB-OSi — The board adopted the hearing committee’s factual findings and found the ODC proved by clear and convincing evidence that respondent violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

0Jp-DB-073 & 0Jp-DB-083 — The board found that the factual allegations of the formal charges were proven by clear and convincing evidence. The board also determined that the committee’s findings of fact indicate respondent violated the Rules of Professional Conduct as charged.

Based on these findings, the board determined that respondent knowingly violated duties owed to his clients and as a professional. His misconduct caused his clients actual harm in that their legal matters have been delayed and their rights of action have been placed in jeopardy. He also caused financial harm to his clients by failing to return unearned fees. Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is a period of suspension.

11itThe board adopted the aggravating factors found by the committees and determined that the only mitigating factor present is the absence of a prior disciplinary record.

After reviewing this court’s prior jurisprudence, the board determined that permanent disbarment is too harsh and that a three-year suspension is appropriate for respondent’s substantive misconduct. However, the board considered respondent’s failure to cooperate with the ODC and failure to participate in the disciplinary proceedings to be particularly egregious. These failures, coupled with respondent’s underlying misconduct, show that he lacks respect for his clients, the court, and the legal system.

Accordingly, the board recommended that respondent be disbarred and that he be ordered to make restitution and/or render an accounting to his clients. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an | uiudependent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

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

The deemed admitted facts in this matter indicate that respondent neglected ten legal matters, failed to communicate with nine clients, and failed to cooperate with the ODC in five investigations. The record supports a finding that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Accordingly, having found professional misconduct, the sole issue presented for our consideration is the appropriate sanction.

In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of |1sany aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent has knowingly, if not intentionally, violated duties owed to numerous clients and as a professional, causing actual and potential harm. The baseline sanction is a lengthy suspension.

The following aggravating factors are present: a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, and indifference to making restitution. The only mitigating factor present is the absence of a prior disciplinary record.

Our prior jurisprudence indicates that we have imposed discipline ranging from lengthy suspensions to disbarment for misconduct involving numerous instances of neglect, failure to communicate with clients, and failure to cooperate with the ODC. We agree with the board that the facts of the instant case support a sanction on the upper end of this range. Respondent accepted the representation of his clients but performed minimal legal work, if any, before completely abandoning the legal matter and his clients. He also failed to communicate with his clients, several of whom were [^incarcerated while respondent represented them. The ODC was then forced to utilize its limited resources to investigate the complaints filed by respondent’s clients with little or no cooperation from respondent. In our view, respondent has demonstrated in a convincing fashion that he has no regard for the welfare of his clients or for his professional obligations.

Accordingly, we will accept the board’s recommendation and disbar respondent. Respondent shall also make restitution as recommended by the board.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that Brian Philip Brancato, Louisiana Bar Roll number 24031, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall make restitution to his clients as recommended by the disciplinary board. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . According to Ms. Young’s complaint filed with the ODC, Mr. Whitted is legally blind and had given her power of attorney to act on his behalf.

      . While Mr. Thomas complained about respondent’s neglect and failure to communicate, his primary complaint seemed to be respondent's failure to return his file so he could proceed with his post-conviction relief matter. In an October 2002 response to the complaint, respondent indicated he would return Mr. Thomas’ file and refund the $250 fee. However, he failed to do so.

      . Mr. Campbell also filed a complaint against respondent in May 2003.

      .The committee indicated that it was not suggesting lawyers should be required to provide services without payment. However, it determined that the $250 fee was de minimis and the consequences for respondent's failure to act diligently were severe for the client.

      . The committee was particularly concerned with respondent's failure to return Mr. Thomas’ file after reading Mr. Thomas’ numerous pleas for help submitted to the ODC.

      . The committee indicated that respondent represented he had personal problems, including a fire at his office.

      . According to Mr. McMullen, respondent retained $500 of the $902 refund check as his fee but failed to return the balance.

      . The board recommended restitution and/or an accounting be made as follows:
      The Young/Whitted matter — accounting and restitution of any unearned fees;
      The Knotts matter — restitution in the amount of $460;
      The Thomas matter — restitution in the amount of $250;
      The Stubin/Campbell matter — restitution in the amount of $1,000;
      The Brown matter — restitution in the amount of $500;
      The McMullen matter — restitution in the amount of $500;
      The Robinson matter — restitution in the amount of $2,500; and
      The Smith matter — restitution in the amount of $4,000.

      . Although not formally charged, the record also indicates that respondent failed to account for and/or refund unearned fees.

      . All but one of the complainants hired respondent to handle their criminal matters. Several were incarcerated while respondent was representing them.

      . See In re: Romero, 04-3087 (La.4/29/05), 900 So.2d 819 (three-year suspension for four instances of neglect and failure to communicate with clients, one instance of failing to refund an unearned fee, one instance of conversion less than $2,000, and one instance of failure to cooperate with the ODC); In re: Brown, 04-1119 (La.1/14/05); 892 So.2d 1 (three-year suspension for five instances of neglect and failure to communicate with clients, two instances of failure to refund unearned fees, and two instances of failure to cooperate with the ODC); In re: Wharton, 03-1816 (La. 10/17/03), 872 So.2d 459 (three-year suspension for seven instances of neglect, four instances of failure to communicate with clients, five instances of failure to refund unearned fees, and three instances of failure to cooperate with the ODC); In re: Poirrier, 01-1116, 01-1118 (La.6/29/01), 791 So.2d 94 (disbarment for six instances of neglect and failure to communicate with clients, six instances of failure to refund unearned fees and/or return files, and six instances of failure to cooperate with the ODC); and In re: Gibson, 00-2658 (La. 11/27/00), 773 So.2d 691 (disbarment for seven instances of neglect, failure to communicate with clients, failure to refund unearned fees, and failure to cooperate with the ODC).


author: CALOGERO, Chief Justice.

text:
    STATE of Louisiana v. Henry Lee LEONARD.
    No. 2005-K-1382.
    Supreme Court of Louisiana.
    June 16, 2006.

      Charles C. Foti, Jr., Attorney General, Douglas P. Moreau, District Attorney, Premila Burns, Dale R. Lee, Assistant District Attorneys, for applicant.
    Manasseh, Gill & Joubert, Baton Rouge, William R. Gill, for respondent.
   CALOGERO, Chief Justice.

|, In this case, we are called upon to determine whether the court of appeal majority applied the proper appellate review to the prosecutor’s violation of La.Code Evid. art. 609.1, which, except under limited circumstances, precludes introduction of the details surrounding a prior conviction, though the fact of the conviction and sentence are otherwise admissible for the purpose of assessing the witness’s credibility. For the reasons that follow, we find that the court of appeal majority erred in declining to apply the harmless error doctrine to this trial error. Accordingly, we remand the matter to the court of appeal for its determination whether the guilty verdict actually rendered in this trial was surely unattributable to the error and, if necessary, for consideration of the assignments of error pretermitted in the court of appeal opinion.

FACTS AND RULINGS OF THE LOWER COURTS

The defendant, Henry Lee Leonard, was charged with the second degree murder of Kenneth LeDeaux, the boyfriend of his ex-wife, Leola Leonard. There is no factual dispute that the defendant shot and killed Mr. LeDeaux on July 20, 2003, at Leola’s place of employment. The major issue at trial, as asserted in defense counsel’s opening statement, was whether the defendant had acted in self-defense. On March 18, 2004, the jury necessarily concluded otherwise when it unanimously | ¿returned a verdict of guilty as charged of second degree murder.

Before trial, the state had filed a notice of intent to introduce other crimes evidence in accordance with La. Code Crim. Proc. art. 720 and La.Code Evid. art. 404(B)(1). According to its notice and memorandum in support, the state sought to introduce evidence of prior physical violence committed by the defendant against his wife and daughter, to establish intent, pattern, and system, and to rebut any allegation of self-defense or “sudden passion or heat of blood.” Specifically, the state sought to introduce evidence that the defendant on July 19, 1998, grabbed and threw his wife, causing her to fall and break her wrist, and that she subsequently filed a petition for a protective order against the defendant, which was dismissed a month later by voluntary motion. The state also sought to introduce an affidavit executed by the defendant later that year for his then employer, the Baton Rouge Police Department, in which he agreed to a suspension and acknowledged the assault on his wife, additional acts of physical violence, and to being in need of anger management counseling and counseling for domestic violence.

Additionally, the state sought to introduce evidence that on March 19, 1999, and December 13, 1999, the defendant beat his minor daughter with a weight-lifting belt, with the first incident resulting in a perforated eardrum, as well as various bruises and welts. The defendant was arrested on December 17, 1999, and charged with second degree battery. On June 1, 2001, the defendant entered a plea of guilty to the reduced charge of simple battery, and his record was subsequently expunged on August 7, 2001.

|sOn December 11, 2003, the district court held a hearing pursuant to State v. Prieur, 277 So.2d 126 (La.1973), and denied admission of the evidence pertaining to the defendant’s physical assaults upon his wife and daughter, finding that the two incidents the state sought to introduce were “an attempt to show bad character. It doesn’t show any motive, system, intent, knowledge or anything like that. It just shows that he’s a person who gets mad.” R. Vol. I, p. 243. The state then applied for writs from the district court’s pretrial ruling, which the First Circuit and this court both denied. See State v. Leonard, 03-2843 (La.App. 1st Cir.2/19/04), and State v. Leonard, 04-0476 (La.2/26/04), 867 So.2d 707.

At trial under direct examination, the defendant admitted to his previous conviction as follows:

Q. And, Henry, let’s get this out right now. For the record is it fair to say that on June 1st of '01 you pled guilty to a misdemeanor simple battery charge; is that correct?
A. That is correct.
Q. And the judge actually sentenced you under article 894; gave you six months parish prison, suspended the sentence, and a hundred dollar fine and court cost; is that correct?
A. That is true; that’s true.
Q. And did you plead guilty to that charge?
A. Yes, I did.
Q. And that’s a simple battery; is that correct?
A. That was simple battery, yes.

Thereafter, on cross-examination, the following exchange occurred:

Q. Mr. Leonard, let’s start first of all talking about the conviction that |4you have told this jury that you [sic] for simple battery.
A. Yes. I was convicted for simple battery, which I pled to.
Q. And I’m going to read that. “Battery is the intentional use of force or violence upon the person of another.” That’s what you pled guilty to; is that correct?
A. That is correct.
Q. That was your daughter; your fourteen-year-old daughter was the victim of that battery?

At this point, defense counsel approached the bench and moved for a mistrial on the basis that the prosecutor had exceeded the scope of La.Code Evid. art. 609.1 by inquiring into the details of the conviction even though the defendant had already admitted to the fact of the conviction and sentence. At the bench conference, the prosecutor argued that it was impeachment evidence and that she was merely inquiring into the “complete sentence,” which the defendant had not fully recited. The trial court disagreed that the identity of the victim of the prior crime was proper impeachment evidence under Article 609.1, and noted that the defendant had already admitted to the crime on the stand. The trial court then informed the prosecutor that | Bshe could go into details regarding the sentence, but that she could not inquire into any details about the facts of the crime. When defense counsel asserted “it’s too late,” indicating the state should not be allowed to continue with the trial, the trial court responded, “it’s not too late. I decide whether it’s too late.” Thus, without expressly saying so, the trial court effectively denied the defendant’s motion for mistrial. When cross-examination resumed, the state questioned the defendant as to the details of his sentence, eliciting that he had been required “to produce ... proof of counseling and domestic violence, a class.... ”

The defendant appealed his conviction and sentence of life imprisonment assigning four errors. By a split decision, the three-judge panel of the Court of Appeal, First Circuit, reversed the defendant’s conviction, on grounds that the prosecutor had improperly inquired concerning other crimes evidence when defendant was on the stand. State v. Leonard, 04-1609 (La. App. 1st Cir.4/27/05), 915 So.2d 829.

The court of appeal majority did not base its reversal of the defendant’s conviction on a specific finding that the trial court’s error was not harmless under the standard articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and later refined in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Instead, the lead opinion initially found that the [ ^prosecutor's comment fell within the scope of La.Code Crim. Proc. art. 771, because the prosecutor’s reference to the victim of the earlier crime was not a per se reference to another crime, given that the other crime had already been referred to on direct examination of the defendant by his counsel. Nonetheless, the lead opinion concluded that reversal of the conviction was merited in this case, because the trial court had “abused its discretion in not granting a mistrial based on the prosecutor’s calculated violation of the trial court’s order, resulting in the denial of the defendant’s right to a fair trial.” Leonard, 04-1609, p. 14, 915 So.2d at 836. Responding to the state’s argument that, had it not “clarified” that defendant’s daughter was the victim in his simple battery conviction, the jury might have assumed that his spouse was the victim because of the domestic violence counseling portion of the sentence, the lead opinion found that the distinction of whether the battery victim was defendant’s ex-wife or his daughter scarcely mattered, and that the state’s reasoning for exposing the “one small detail” that defendant beat his own child and was convicted of it was not persuasive. In reversing the conviction, the lead opinion stated: “If we do not enforce a ruling designed to ensure a defendant a fair trial in a case where the prosecutor |7violated a specific instruction to adhere to the ruling, we cannot expect fair trials.” Id. Thus, the lead opinion essentially found that reversal was merited when the state intentionally violates a pretrial ruling regarding other crimes evidence.

The concurring judge agreed that reversal of the conviction was warranted. However, he reasoned that the prosecutor’s identification of the victim in violation of the trial court’s Prieur ruling fell within the scope of La.Code Crim. Proc. art. 770, which requires that a mistrial “shall be ordered,” and, therefore, no discretion was afforded the trial court in ruling upon such a request. Although he considered the erroneous admission of the evidence to be harmless, he believed the trial court’s refusal to grant the mandatory mistrial under Article 770(2) was not subject to harmless error review, noting that “we are all of us under a duty to follow the law.” Leonard, 04-1609, 915 So.2d at 837-38, Hughes, J., concurring.

The dissenting judge agreed that the prosecutor’s conduct was inappropriate, unnecessary, in contravention of the trial court’s specific pretrial ruling, and intentionally made to show the defendant’s bad character. Leonard, 04-1609, 915 So.2d at 838-39, Whipple, J., dissenting. However, the dissenting judge examined the improper admission of the evidence for harmless error, and concluded that there was no indication the defendant had not received a fair trial and that the guilty verdict was unattributable to any error in the admission of this “one detail” of the defendant’s laprior conviction. The dissenting judge was convinced beyond a reasonable doubt that a retrial was not warranted. Id.

We granted the state’s writ application seeking review of the majority’s reversal of the conviction. State v. Leonard, 05-1382 (La.2/3/06), 922 So.2d 1154.

DISCUSSION

The issue brought before us by the state is whether the court of appeal majority erred in not applying the harmless error doctrine to the prosecutor’s violation of La.Code Evid. art. 609.1.

We first agree with the lead opinion that the prosecutor’s assertive question, referring to evidence that was previously ruled inadmissible by the trial court, fell within the scope of La.Code Crim. Proc. art. 771(1), rather than La. Code Crim. Proc. art. 770(2). Article 771(1) is the controlling rule in this case because the fact of the prior conviction and the sentence were otherwise admissible under Article 609.1, albeit for the limited purpose of attacking the credibility of a witness. Although the trial court at the Prieur hearing had ruled that evidence of the other crimes allegedly committed by the defendant upon his wife and daughter were not admissible under La. Code Evid. art. 404(B), the fact of the conviction for the crime against the daughter and the sentence therefor were otherwise admissible under La.Code Evid. art. 609.1 once the defendant took the stand. Indeed, the defendant admitted to the conviction in his direct testimony. Accordingly, the prosecutor’s assertive question was not a remark or comment that referred directly or indirectly to “another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible,” because the fact of the prior conviction with respect to the daughter was otherwise admissible under Article 609.1 for the limited purpose of ^testing the credibility of the witness. Instead, while the prosecutor’s assertive question was a remark outside the scope of Article 770, it was nevertheless a remark or comment made by the prosecutor during trial within the hearing of the jury that was, in light of the Prieur ruling and the dictates of Article 609.1, “irrelevant or immaterial and of such a nature that it might create prejudice against the defendant ... in the mind of the jury.”

We also agree with the lower court’s finding that the state was not justified in delving into the details of the conviction under any of the exceptions set forth in La.Code Evid. art. 609.1(C). Once the defendant took the stand, the state could introduce evidence of the prior conviction and sentence pursuant to Article 609.1, which allows impeachment of a witness in a criminal case by evidence of prior convictions. If a defendant chooses to testify, this provision authorizes credibility testing with evidence of prior criminal convictions. See State v. Tassin, 536 So.2d 402 (La.1988); State v. Neslo, 433 So.2d 73 (La.1983) (both decided under former La. Rev.Stat. 15:495).

Nevertheless, La.Code Evid. art. 609.1 only permits introduction of the details of a conviction for impeachment purposes under limited circumstances. Although the state argues that the defendant was not completely forthright about the details of the sentence, and thus it was justified in inquiring into the conditions attached to the suspension of the sentence, the defendant simply omitted a requirement of the 1 ^sentence: proof of completion of the domestic violence offender program class and counseling. La.Code Evid. art. 609.1 authorizes introduction of the details of the crime only when the witness has denied the conviction or denied recollection thereof, or when the witness has testified to exculpatory facts or circumstances surrounding the conviction, or when the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.

The state’s argument to the contrary, we conclude that none of those exceptions applies in this case, where the defendant admitted the conviction, he did not testify to exculpatory facts or circumstances, and the probative value of the evidence with respect to the defendant’s credibility did not, we are convinced, outweigh the danger of unfair prejudice, confusion of the issues, or misleading the jury. Here, the prosecutor did not merely ask the defendant if his sentence had included completion of the domestic violence offender program or counseling; instead, the prosecutor specifically asked the defendant to confirm that the victim of the prior crime was his then fourteen-year-old daughter. Thus, as the lower court recognized, the prosecutor’s explanations given in retrospect to justify the assertive question under La.Code Evid. art. 609.1 regarding the identity of the victim were ultimately unavailing. Accordingly, the prosecutor’s assertive question was not justified under any of the exceptions to La.Code Evid. art. 609.1(C).

La.Code Crim. Proc. art. 771 provides that “on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.” Here, the defendant objected to the question under Article 609.1 and moved for a mistrial, rather than an admonition, under either Article 770 or 771. Because the prosecutor’s assertive question, as we have found, fell within the scope of Article 771, the granting of a mistrial was within the broad discretion of the Intrial court. La. Code Crim. Proc. art. 775 provides in part that “[ujpon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” As a general matter, mistrial is a drastic remedy which should only be declared upon a clear showing of prejudice by the defendant. State v. Scott, 04-1312 (La.1/19/06), 921 So.2d 904; State v. Wilkerson, 403 So.2d 652, 659 (La.1981) (mere possibility of prejudice is not enough to warrant mistrial). In addition, a trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. State v. Sanders, 93-0001, pp. 20-21 (La.11/30/94), 648 So.2d 1272, 1288-89; State v. Wingo, 457 So.2d 1159, 1166 (La.1984).

Although they recognized that the prosecutor’s question violated La.Code Evid. art. 609.1 and resulted in the erroneous admission of prejudicial evidence, the judges in the court of appeal majority fell into error when they declined to apply the harmless error doctrine to this violation of La.Code Evid. art. 609.1. First, the concurring judge believed that the granting of a mistrial was mandated, because the prosecutor’s assertive question fell within the scope of Article 770. As we have previously explained, however, this basis for concurring in the reversal of the defendant’s conviction and sentence was in error, because the granting of a mistrial in this case was within the trial court’s broad discretion under Article 771.

Second, although the lead opinion believed that a mistrial should have been granted and that harmless-error analysis did not apply in a case in which the prosecution has deliberately violated an order of the trial court by placing before the jury evidence that the court had previously excluded, a reviewing court in Louisiana should not reverse a defendant’s conviction and sentence unless the error has 11g!“affect[ed] the substantial rights of the accused.” La.Code Crim. Proc. art. 921 (“A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”). The defendant argues that it should never be harmless error when a prosecutor knowingly and intentionally violates a trial court order and knowingly violates basic rules of evidence, particularly regarding the admission of other crimes evidence, analogizing such a rule to the exclusionary rule for police misconduct in search and seizure cases. However, the purpose of appellate review is not to punish a misbehaving prosecutor, but to correct errors that have contributed to the jury’s verdict. Therefore, harmless error analysis is, in appropriate cases, a proper part of the appellate review process.

The history of Louisiana’s harmless error rule makes clear that there has been one common directive: appellate courts should not reverse convictions for errors unless the accused’s substantial rights have been violated. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. This comports with the general theory that “appeals in criminal cases are not granted merely to test the correctness of the trial court’s ruling, but only to rectify injuries caused thereby.” State v. Saia, 212 La. 868, 876, 33 So.2d 665, 668 (1947). In sum, the court of appeal majority should have determined whether the jury’s verdict in the present case was surely unattributable to the erroneous admission of the identity of the victim in the prior crime, as a result of[1sthe state’s violation La.Code Evid. art. 609.1, and whether this error was harmless beyond a reasonable doubt. State v. Sanders, 93-0001, p. 25 (La.11/30/94), 648 So.2d 1272, 1291.

CONCLUSION

For the reasons set forth above, we find that the court of appeal majority erred in not applying the harmless error doctrine to the state’s violation of the restrictions of La.Code Evid. art. 609.1, which resulted in the erroneous admission of prejudicial evidence. Accordingly, we reverse the court of appeal’s ruling, which had upset the defendant’s conviction for second degree murder, and remand the matter to the court of appeal for its determination as to whether the guilty verdict actually rendered in this trial was surely unattributable to the error and, if necessary, for consideration of the assignments of error pretermitted in the court of appeal opinion.

DECREE

REVERSED AND REMANDED.

VICTORY, J., concurs in the result.

KNOLL, J., concurs in the result only.

      . Neither the state's notice of intent nor its memorandum in support thereof mentions the defendant's sentence for the guilty plea to simple battery. However, the record does contain a minute entry for that offense, R. Vol. I, p. 90, in which the sentence is noted as follows: "PG Resp. verdict simple battery; Sent: Def 894 6mo PP susp $100+ cc, proof of DVOP and counseling.” In the record, this minute entry follows the state's "Answer to Motion for Discovery and Inspection” and appears to be part of that filing rather than the state’s notice of intent to introduce evidence of other crimes. At any rate, according to the minute entry, the trial court in that case sentenced the defendant pursuant to La. Code Crim. Proc. art. 894 to six months in parish prison, suspended execution of the sentence, imposed a fine of $100 plus court costs, and required that the defendant complete a domestic violence offender program ("DVOP”) and counseling.

      . La.Code Evid. art. 609.1, entitled “Attacking credibility by evidence of conviction of crime in criminal cases,” provides in pertinent part:
      A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
      B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
      C.Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:
      (1) When the witness has denied the conviction or denied recollection thereof;
      (2) When the witness has testified to the exculpatory facts or circumstances surrounding the conviction; or

        (3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.

      . The defendant argued the following claims on appeal: 1) whether his right to confront his accusers was violated by the admission of an autopsy report; 2) whether a mistrial should have been granted after the prosecutor intentionally elicited inadmissible evidence from a witness, the defendant; 3) whether a mistrial should have been granted based on alleged comments by the prosecutor on defendant’s alleged post-arrest silence; and 4) whether the evidence was sufficient to support a conviction.

      . Chapman tests whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 87 S.Ct. at 828. Chapman further holds that an error does not "contribute” to the verdict when the erroneous trial feature is unimportant in relation to eveiy-thing else the jury considered on the issue. Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991). In Sullivan, the Supreme Court refined Chapman, stating that the appropriate inquiry "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081 (emphasis in original).

      .La.Code Crim. Proc. art. 771, entitled "Admonition,” provides:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:

        (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

      . La.Code Crim. Proc. art. 770, entitled "Prejudicial remarks; basis of mistrial,” provides in pertinent part:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . "Assertive questions are those which place before the jury the details concerning the other crime." State v. Hatch, 305 So.2d 497, 503 (La.1974).

      . Former La.Rev.Stat. 15:495 provided:
      Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

      . The judges below also believed that the prosecutor may have deliberately violated the district court’s pretrial ruling under Prieur excluding evidence of other crimes, wrongs or acts. Notably, the trial judge did not indicate that he believed the state had violated his Prieur ruling, whether intentionally or not. While we do not go so far as to conclude on the record before us that there was a deliberate violation of the trial judge’s Prieur ruling, we note that, even had the violation of either that pre-trial ruling or the code of evidence been purposeful, under the facts of this case, especially because the defendant had taken the stand thereby bringing La.Code Evid. art. 609.1 into play, the lower court should have nevertheless applied a harmless error review to the trial error. Of course, we caution prosecutors not to engage in deliberate misconduct with the expectation that such misconduct will later be deemed harmless error. The Rules of Professional Conduct serve to govern the prosecutor’s actions.