text:
    Scott HOSTETTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3183.
    District Court of Appeal of Florida, First District.
    March 26, 2012.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Scott Hostetter appeals the revocation of his probation arguing that the trial court erred in revoking his probation on grounds not contained in the probation order and that the evidence presented was insufficient to prove each alleged violation. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

At the time of the alleged violations, appellant was serving seven years’ sex-offender probation, the relevant conditions of which include the following:

(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow the officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.
(10a) Abide by curfew by remaining confined to residence between the hours of 10:00 p.m. and 6:00 a.m.
⅜ * *
If the victim(s) was/were under the age of 18, you are to have no unsupervised contact with any children under the age of 18 until successful completion of sex offender treatment program and only then if authorized by the sentencing court. Said contact, if authorized, shall require the presence of another adult who is responsible for the child’s welfare, who has been advised of the crime and who has been approved by the sentencing court.
* * ⅜
Unless otherwise indicated in the treatment program, you shall not view, own, or possess any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to your deviant behavior pattern.

Appellant’s probation officer filed an affidavit charging appellant with violating Condition 9 by failing to comply with his probation officer’s instructions, Condition 18 by having unsupervised contact with a child, and Condition 20 by possessing pornographic material. An evidentiary hearing was held on May 19, 2011, and the trial court found that appellant had violated probation as alleged. Probation was revoked, and appellant was re-sentenced to 24 months’ sex-offender community control.

This court reviews the trial court’s decision to revoke probation for an abuse of discretion. See Blackshear v. State, 838 So.2d 1228 (Fla. 1st DCA 2003). Appellant argues that the court erred in revoking probation based on Condition (9) because the probation officer himself fashioned the condition prohibiting contact with his girlfriend’s child during curfew. “Violation of a condition which is imposed by a probation officer, rather than an express condition of the trial court, cannot serve as a basis for revocation of probation.” Kiess v. State, 642 So.2d 1141, 1142 (Fla. 4th DCA 1994).

We are not persuaded by appellant’s argument and find that the evidence supports the trial court’s determination that appellant violated Condition (9). In forbidding contact with the child during the curfew hours of 10:00 p.m. through 6:00 a.m., appellant’s probation officer simply reiterated what the trial court had already stated in the probation order that pursuant to Condition 18, appellant was not to have unsupervised contact with minors. Appellant clearly violated Condition 9 of his probation by failing to obey his probation officer’s instructions not to have the child at his residence during curfew hours.

Likewise, we find the evidence sufficient to support a violation of Condition 18. Appellant argues that because the child’s mother was present, he did not violate Condition 18, which prohibits unsupervised contact with minors. However, under Condition 18 “supervised contact” requires the presence of an adult “who has been approved by the sentencing court.” Because the child’s mother was never approved by the trial court, the contact was not authorized and is thus the kind of unsupervised contact expressly prohibited by Condition 18. Thus, we affirm the trial court’s determinations as to the violations of Conditions 9 and 18.

Condition 20 prohibited appellant from viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material relevant to deviant behavior patterns. Appellant’s probation officer testified to receiving naked pictures of appellant that appellant had, apparently unintentionally, sent to his ex-wife. Appellant argues that, pursuant to Kasischke v. State, 991 So.2d 803, 815 (Fla.2008), to permit revocation the pornographic material in question must be relevant to the deviant behavior at issue in the underlying offense. Appellant further argues that the trial court erred in determining that appellant violated Condition 20, because, appellant asserts, there was “no evidence from which an association could be made between the underlying offenses ... and the sexually explicit materials in question.” Id.

In Kasisehke, the Florida Supreme Court interpreted what is now section 948.30(1) (g), Florida Statutes (2011), which prohibits sexual offenders serving probation or community control from possessing pornographic material, as applying only to such material that is relevant to the offender’s deviant behavior. Id. As here, in Kasischke, the conditions of probation included a provision pursuant to this statute. Concluding that the statute was ambiguous, the court applied the rule of lenity. Id. at 814-15. The Supreme Court has explained that the rule of lenity requires that “[a]ny ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.” State v. Byars, 823 So.2d 740, 742 (Fla.2002); see also § 775.021(1), Fla. Stat. (2007) (“The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”). Applying the rule of lenity, the Kasischke court held

that the limiting phrase “relevant to the offender’s deviant behavior pattern” must be interpreted as qualifying each of the prohibitions in section [948.30(1) (g) ]. See Clines v. State, 912 So.2d 550, 560 (Fla.2005) (applying the rule of lenity to an ambiguous statute that “generate[d] differing reasonable constructions”). In other words, the Petitioner violated the statute only if the “obscene, pornographic, or sexually stimulating” material recovered from his home was relevant to his “deviant behavior pattern.”

Kasischke, 991 So.2d at 815.

As required by Kasischke, we hold that Condition 20 is limited to materials relevant to appellant’s deviant behavior in the underlying offense. We find the evidence in the record before us insufficient to support a violation of Condition 20. The trial court failed to elaborate on the connection between the images in appellant’s possession and the deviant behavior at issue in the underlying offense. In fact, the nature of the underlying offense is not disclosed in the record on appeal. While the fact that appellant was originally convicted of sexual battery on a child under twelve by a defendant less than eighteen years of age sheds some light on the nature of appellant’s crime, the record on appeal does not allow an informed decision as to what connection exists between the photographs of appellant’s own genitalia at issue and the underlying offense. Therefore, it has not been proven by a preponderance of the evidence that appellant violated Condition 20 of his probation. See Kasischke.

Even though appellant violated Conditions 9 and 18, the record does not show that the trial court would have revoked probation and imposed the same sentence based on these violations alone. Therefore, we remand this cause to the trial court for a determination as to whether probation would have been revoked and the same sentence imposed based solely on the violations of Conditions 9 and 18. See McPeek v. State, 61 So.3d 1267 (Fla. 1st DCA 2011) (ordering remand because record does not indicate whether trial court would have revoked probation based only on the violation affirmed by the reviewing court).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

LEWIS and SWANSON, JJ., concur.

      . Section 948.30(1) (g), Florida Statutes provides:
      Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.

      . Courts in other jurisdictions are split as to whether imposing a general ban on possession of "pornography” as a condition of supervised release is unconstitutionally vague. See McVey v. State, 863 N.E.2d 434, 447 (Ind.Ct.App.2007) (condition prohibiting possession of pornographic or sexually explicit materials was unconstitutionally vague); Fitzgerald v. State, 805 N.E.2d 857, 866-67 (Ind.Ct.App.2004) (same); State v. Bahl, 164 Wash.2d 739, 193 P.3d 678, 688 (2008) (same); and State v. Sansone, 127 Wash.App. 630, 111 P.3d 1251, 1255 (Wash.Ct.App.2005) (same); Wilfong v. Commonwealth, 175 S.W.3d 84, 99 (Ky.Ct.App.2004) (a commonsense reading of the phrase "sexually arousing materials” does not render the ambiguous phrase unconstitutionally vague regarding its use in a condition of probation); and Belt v. State, 127 S.W.3d 277, 281-82 (Tex.Ct.App.2004) (condition prohibiting possession of " 'sexually stimulating’ or 'sexually oriented’ ” material was not unconstitutionally vague); see also Commonwealth v. Perreault, 930 A.2d 553, 560 (Pa.Super.Ct.2007) (a condition is not unconstitutionally vague when statutes provide definitions of the terms); see generally Michael Smith, Barely Legal: Vagueness and the Prohibition of Pornography as a Condition of Supervised Release, 84 St. John’s L. Rev. 727 (2010).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brian ARLOTTA, Appellant, v. CITY OF WEST PALM BEACH and Johns Eastern Company, Appellees.
    No. 1D11-1877.
    District Court of Appeal of Florida, First District.
    March 26, 2012.

      Kenneth B. Schwartz, West Palm Beach, for Appellant.
    Kevin R. Clarke of the Law Office of Kevin R. Clarke, Jupiter, for Appellees.
   PER CURIAM.

In this workers’ compensation case, the Judge of Compensation Claims (JCC) found Claimant waived his right to a previously ordered evaluation by an expert medical advisor (EMA). The JCC then cancelled the EMA evaluation and addressed the pending claims without the benefit of the EMA report or competent evidence supporting the cancellation. In doing so, the JCC reversibly erred.

Background

On July 27, 2007, Claimant, a police officer, strained his quadriceps tendons bilaterally and the Employer/Carrier (E/C) accepted compensability of the knee injuries. As a part of Claimant’s treatment regimen, he was provided anti-inflammatory medications, and, to combat their side-effects, Zantac.

On October 29, 2009, Claimant filed a petition for benefits, seeking a determination of the “compensability and or treatment of the claimant’s gynecomastia due to the medication that Dr. Yee, the authorized doctor, prescribed him,” as well as attorney’s fees and costs. The E/C, after having Claimant evaluated by Dr. Vidalon, and obtaining an independent medical examination with Dr. Cohen, denied com-pensability of the gynecomastia.

Claimant notified the JCC that he believed there to be a disagreement in the medical opinions of Drs. Vidalon and Cohen. After reviewing the opinions, the JCC agreed and, in a non-final order rendered September 22, 2010, appointed an EMA to address “the issues of 1) whether the Claimant has gynecomastia, 2) the cause of the gynecomastia, and 3) what treatment is recommended.”

It took several months to locate a physician willing and able to perform the evaluation, but an appointment was scheduled for December 2010. Claimant asked that it be re-scheduled due to a conflict; the new date was January 17, 2011. When the EMA doctor advised the JCC that Claimant did not appear for the examination, the JCC scheduled a status conference. Claimant’s attorney indicated he did not know why his client failed to appear at the appointment and was trying to contact him. The appointment was re-scheduled once again, this time for March 3, 2011.

On February 23, 2011, Claimant filed a motion to submit the medical records of Dr. Masse to the EMA, explaining that Dr. Masse had already performed surgery to address Claimant’s gynecomastia. The E/C objected to the motion and filed a motion to dismiss Claimant’s claims. The E/C argued that Claimant’s unilateral decision to undergo surgery prevented the EMA from answering the questions put to him and that the E/C had been prejudiced in its ability to defend the claims; thus, the only possible solution was dismissal of the claims.

The JCC found that Claimant, by undergoing surgery, altered his condition to such a degree that an evaluation by the EMA would be futile. Further, the JCC found that, because the only treatment for gynecomastia was excision of the breast tissue, the EMA would not be able to determine whether Claimant indeed had gynecomastia. She concluded that the claims for the determination of the com-pensability and authorization for treatment for Claimant’s gynecomastia were moot because Claimant had undergone the surgery, the only treatment recommended for the condition. Because Claimant failed to meet his burden of proof, the JCC denied and dismissed the claims.

Analysis

Section 440.13(9)(c), Florida Statutes (2007), mandates the appointment of an EMA if there is a disagreement among healthcare providers. This court has made this clear in a number of cases and various circumstances. See, e.g., Chapman v. Nationsbank, 872 So.2d 390, 393 (Fla. 1st DCA 2004) (holding failure to appoint EMA “cannot be justified on the basis that the JCC disagreed with and rejected the contrary opinion of an expert”); AT & T Wireless v. Frazier, 871 So.2d 939, 940 (Fla. 1st DCA 2004) (holding appointment of EMA mandatory once JCC is made aware of conflict in medical evidence, even if EMA was not requested by either party and conflict becomes apparent only after merits hearing has begun); Broward Children’s Ctr., Inc. v. Hall, 859 So.2d 623, 628 (Fla. 1st DCA 2003) (holding appointment of EMA is mandatory even if resort to administrative rule addressing selection of temporary EMA must be had); Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352, 1356 (Fla. 1st DCA 1997) (holding whether to appoint EMA is not within discretion of JCC). Here, the JCC found a disagreement between the opinions of two healthcare providers, and neither party disputes this finding.

Here, Claimant’s decision to move forward with' the surgery before the EMA appointment cannot justify, without record medical evidence suggesting otherwise, “withdrawal of the EMA order.” The JCC’s findings that it would be “futile” for the EMA to examine Claimant and'that the doctor “would not-be able to determine” whether Claimant had gyneco-mastia are speculative and simply not supported by the medical evidence. Dr. Basa-dre, the EMA appointed by the JCC, did not issue an opinion, nor was he deposed. Certainly, -Claimant’s decision to have the surgery complicates matters, and could ultimately result in the denial of some or all of his claims, but dismissal of his claims was not warranted at this juncture, particularly in light of the JCC’s finding that Claimant did not willfully disobey an order. See Martinez v. Collier County Pub. Sch., 804 So.2d 559, 561 (Fla. 1st DCA 2002) (holding dismissal too severe a sanction even if “good cause” was not shown).

The JCC’s finding that the E/C would be prejudiced by allowing the EMA physician to review the surgeon’s records is also speculative and not supported. Medical history given to, and information as to diagnosis and treatment provided by, unauthorized physicians is admissible evidence; in contrast, their medical opinions are not. See Office Depot, Inc. v. Sweikata, 737 So.2d 1189, 1191 (Fla. 1st DCA 1999) (holding it was reversible error to exclude deposition of unauthorized physician under section 440.18(5)(e), Florida Statutes and explaining: “Dr. Kasabian’s deposition consisted only of a factual report of the information contained in his office records regarding claimant’s visits to him for back pain in 1992. Dr. Kasabian enumerated what Sweikata’s complaints and his diagnosis had been and the treatment he had prescribed, but he offered no medical opinion regarding any of these matters.”).

Even though the JCC here was clearly frustrated with Claimant’s conduct, and perhaps justifiably so, that frustration cannot override mandatory statutory provisions. The JCC abused her discretion in cancelling the EMA evaluation. Because the JCC erred in deciding the claims without the benefit of the EMA’s opinion, and ultimately denying those claims, her denial of attorney’s fees and costs was also premature. Accordingly, these issues are hereby REVERSED and the matter REMANDED for further proceedings, including the possibility of taking additional evidence.

BENTON, C.J., WOLF and VAN NORTWICK, JJ„ concur.

       "Gynecomastia” is defined as "[ejxcessive development of the male mammary glands.” Stedman's Medical Dictionary 676 (25th ed. 1990).


text:
    David Eugene COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4280.
    District Court of Appeal of Florida, First District.
    March 26, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg' v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    David Eugene COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4279.
    District Court of Appeal of Florida, First District.
    March 26, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    Bobbie Jo Kathleen DUKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3671.
    District Court of Appeal of Florida, First District.
    March 26, 2012.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    L.A.O., Mother of D.K., D.O., L.O., L.O., D.O., minor children, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Ron Ringo, Attorney, Ada Dixon, Supervisor, Antione Williams, Sean Parker, Investigator, and Families First Network, Jeanie Atherton, Supervisor, Charlene Southhall, Case Worker, and Guardian ad Litem of Florida Circuit 1, Michael Harris, Respondents.
    No. 1D12-0585.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    L.A.O., Pensacola, pro se, Petitioner.
    Ward L. Metzger, Children’s Legal Services, Jacksonville; Kelly Schaeffer, Guardian Ad Litem, Tavares, for Respondent.
   PER CURIAM.

In accordance with Florida Rule of Appellate Procedure 9.040(c), the petition for writ of mandamus is treated as a petition for writ of certiorari, and is dismissed as untimely filed.

ROBERTS, CLARK, and SWANSON, JJ., concur.


text:
    Ann KOTZIAN, Petitioner, v. John B. MURPHY, Respondent.
    No. 1D12-0125.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Jessie L. Harrell and Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, for Petitioner.
    William H. Davie, II, of The Davie Law Firm, Green Cove Springs, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. Within 30 days, the circuit court shall enter a final judgment in this cause. Because we are confident that the circuit court will comply with this directive, we withhold formal issuance of the writ.

ROBERTS, CLARK, and SWANSON, JJ., concur.


author: BENTON, C.J.

text:
    Daniel Kang SHANKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5069.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Barbara Blount-Powell of DeThomasis & Buchanan, P.A., Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

When Daniel Shanks petitioned to have his criminal history record sealed, attaching the requisite affidavit and certificate of eligibility from the Florida Department of Law Enforcement, see § 94B.059, Fla. Stat. (2011); Fla. R.Crim. P. 3.692, the trial court entered an order denying the petition to seal, stating (apart from formal parts) only: “Having thoroughly reviewed the case and in consideration to the Amended Petition to Seal Criminal History Record, Response, and being fully advised in the premises, this Court denies the Petition to Expunge/Seal, pursuant to F.S. § 943.059.” We reverse and remand.

Earlier Mr. Shanks had entered a plea of nolo contendere to a charge of possession of cocaine, in violation of section 893.13(6)(a), Florida Statutes (2009). The trial court withheld adjudication of guilt and sentenced him to twelve months’ drug offender probation with the special condition that he complete a six-month recovery program. Upon request of his probation officer, Mr. Shanks’ probation was terminated early. He then filed his petition to expunge or seal, which meets all rule and statutory criteria.

“[Ojnce an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records. However, the petition is addressed to the sound discretion of the trial court, and the petition may be denied if there is good reason for denial based on the facts and circumstances of the individual case.” Anderson v. State, 692 So.2d 250, 252 (Fla. 3d DCA 1997) (citation omitted). Here denial in the exercise of sound discretion would have required some good reason based on facts and circumstances of Mr. Shanks’ individual case.

But “[without [any] evidence at [a] hearing or stating any reason for denying [Mr. Shanks’] request in its order, it appears the trial court had no factual basis to support the denial of [Mr. Shanks’] request to seal his records.” Cole v. State, 941 So.2d 549, 551 (Fla. 1st DCA 2006). Accordingly, we reverse and remand for further proceedings. See Light v. State, 80 So.3d 414 (Fla. 1st DCA 2012); Hobbs v. State, 80 So.3d 415 (Fla. 1st DCA 2012); Baker v. State, 53 So.3d 1147, 1148-49 (Fla. 1st DCA 2011); VFD v. State, 19 So.3d 1172, 1175 (Fla. 1st DCA 2009).

Reversed and remanded.

WETHERELL and RAY, JJ., concur.


text:
    Demetrius WASHINGTON, Appellant, v. STATE, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM obo Ashley D. ROBERTS, Appellee.
    No. 1D11-3740.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Demetrius Washington, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Inasmuch as the Final Order of Paternity and Administrative Support relates to paternity, it is affirmed. However, in accordance with appellee’s concession of error, as to all other matters, the order is reversed, and this matter is remanded for further proceedings.

ROBERTS, CLARK, and SWANSON, JJ., concur.


author: WELLS, Chief Judge.

text:
    Miguel GIRALDO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-652.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.
    Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and SALTER, JJ.
   ON MOTION FOR CLARIFICATION

WELLS, Chief Judge.

On consideration of the motion for clarification filed by the Miguel Giraldo, the Court withdraws its previous opinion and substitutes the following opinion.

Affirmed. See Smith v. State, 79 So.3d 127 (Fla. 3d DCA 2012); Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011) (citing State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011) [review granted, 71 So.3d 117 (Fla.2011) ], and acknowledging “uncertainty caused by [Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011) ]” but reaffirming its view that section 893.13 is constitutional).


text:
    Junior C. JOHNSON, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3443.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Henry PTOMY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5232.
    District Court of Appeal of Florida, First District.
    March 28, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Willie Deangelo BIGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2054.
    District Court of Appeal of Florida, First District.
    March 30, 2012.
    Charles L. Truncale, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Charles M. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2577.
    District Court of Appeal of Florida, First District.
    March 30, 2012.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Darryl L. ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4207.
    District Court of Appeal of Florida, First District.
    March 30, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., WOLF and VAN NORTWICK, JJ., concur.


text:
    In re Kevin F. TUCKER.
    No. 2011-B-2423.
    Supreme Court of Louisiana.
    Dec. 2, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected his clients’ legal matters and failed to communicate with his clients. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Kevin F. Tucker, Louisiana Bar Roll number 29689, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    SAFEGUARD STORAGE PROPERTIES, L.L.C., et al. v. DONAHUE-FAVRET CONTRACTORS, INC., et al.
    No. 2011-CC-2558.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   IN RE: Safeguard Storage Properties L.L.C. et al.; -Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 07-9359; to the Court of Appeal, Fourth Circuit, No. 2011-C-1415.

11 Granted. Relator’s writ application, mailed on Monday, October 10, 2011 through Federal Express, was filed within the applicable deadline from the district court’s September 9, 2011 oral ruling, and is therefore timely. See Rule 2-13 of the Uniform Rules of the Court of Appeal. Because the application was filed within the deadline prescribed by Rule 4-3, relator’s failure to obtain a return date does not render the application defective. See Rambo v. Willis-Knighton Bossier Health Center, 00-2157 (La.7/28/00), 766 So.2d 1262. Accordingly, the application is remanded to the court of appeal for consideration on the merits.


text:
    In re Shelley Ann MARTIN.
    No. 2012-B-0328.
    Supreme Court of Louisiana.
    Feb. 7, 2012.
   ORDER

| Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Shelley Ann Martin, Louisiana Bar Roll number 31251, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/&/ Bernette J. Johnson /s/ Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Torrey D. BROWN.
    No. 2011-K-1656.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   PER CURIAM.

11Writ Granted. At the habitual offender adjudication, defense counsel stipulated what the testimony of the fingerprint expert would be if he testified and further stipulated that defendant was the same person convicted of the predicate offenses. The court of appeal reversed the habitual offender adjudication after finding as an error patent that the record did not reflect that the trial court advised defendant of his right to a formal hearing, to have the state prove its case under the habitual offender statute, or of his right to remain silent. Therefore, because defendant was not informed of his statutory rights under La. R.S. 15:529.1(D), the court of appeal found that his stipulation through counsel as to his prior felony convictions was invalid. State v. Brown, 10-0238 (La.App. 5th Cir.6/29/11), 71 So.3d 1069. However, because any omission by the district court in advising the defendant of his rights appears harmless in light of the documentary proof introduced by the state at the hearing that the defendant is the person who pled guilty to the predicate | ¡¡offenses, and in light of the defendant’s own admissions in his testimony at trial, the court below erred.

For the defendant to receive an enhanced penalty under La. R.S. 15:529.1, the state must prove prior felony convictions and then prove the defendant is the same person who committed the prior felonies. State v. Blackwell, 377 So.2d 110 (La.1979). Both the identity and the prior conviction alleged must be proven beyond a reasonable doubt. La. R.S. 15:529.1(D)(l)(b). Various methods of proof establishing identity have been recognized as sufficient to sustain the state’s burden of proof, including testimony of witnesses, expert opinion as to fingerprints, and photographs contained in duly authenticated records. State v. Brown, 514 So.2d 99, 106 (La.1987); State v. Jones, 408 So.2d 1285, 1294-95 (La.1982); State v. Curtis, 338 So.2d 662, 664 (La.1976). In the present case, the state presented certified copies of defendant’s predicate convictions. After disregarding the fingerprint evidence, which depended on the opinion of the state’s expert to which defendant stipulated without being fully advised of his rights, the remaining documents identify defendant by his full name and date of birth. In addition, defendant admitted his two prior convictions when he testified at trial and those admissions corresponded with the state’s proof at the habitual offender hearing. The trial court could properly take those admissions into account in finding that the state thus presented sufficient proof at the habitual offender hearing that defendant was the same person who had pled guilty to the predicate offenses. State v. Jones, 332 So.2d 461, 462 (La.1976) (A trial judge may take judicial notice during habitual offender proceedings “of any prior proceeding which was a part of the same case he had previously tried.”)(internal quotation marks and citation omitted); State v. Gordon, 582 So.2d 285, 293, n. 2 (La.App. 1st Cir.1991) (“[T]he trial court could take judicial notice of the ^defendant’s trial testimony (admitting his prior simple robbery conviction) because the ... trial was a prior proceeding in the same case as the habitual offender hearing.”).

The court below found this documentary proof lacking because defendant’s date of birth is incorrect on State’s Exhibit 1, which is the most recent fingerprint exemplar used to by the expert to match defendant’s fingerprints to those associated with the predicate convictions. Brown, 10-0238 at 17, 71 So.3d at 1079. However, defendant’s correct date of birth appears on the present charging instrument as well as on documents associated with the predicate convictions. Furthermore, after the court below rejected defendant’s stipulation to the testimony of the fingerprint expert, the exemplar had no evidentiary use and the error contained on it became irrelevant. The court below therefore erred in finding the error significant.

Accordingly, defendant’s habitual offender adjudication and sentence are reinstated and this ease is remanded to the court of appeal for consideration of the remaining pro se assignments of error pre-termitted on original appeal.


author:
      PER CURIAM.
      JOHNSON, J. KNOLL, J.,

text:
    Kieta ALEXANDER, et al. v. NORFOLK SOUTHERN CORPORATION, et al.
    No. 2011-C-2793.
    Supreme Court of Louisiana.
    March 9, 2012.
   PER CURIAM.

| defendants seek review of a judgment certifying this matter as a class action. For the reasons that follow, we grant defendants’ writ and reverse the judgment of certification.

FACTS AND PROCEDURAL HISTORY

This matter arises out of a chemical spill from a railroad tank car which occurred on September 18, 2001 in the City of New Orleans. The New Orleans Fire Department investigated and determined ethyl acrylic fumes were leaking from valves on two railroad cars that had been parked for less than an hour while waiting for another train. The fire department tightened the valves, and the trains were permitted to leave. No evacuation was called. Approximately twenty people were treated and released at the scene for exposure to the chemical, and hundreds of others complained about eye, nose, throat, and respiratory irritations, as well as a noxious smell.

Subsequently, plaintiffs filed the instant class action suit against several railroad and chemical companies. After a hearing, the district court granted certification. The court of appeal affirmed the district court’s judgment in an opinion not designated for publication. Defendants now seek review of that ruling.

| ¡.DISCUSSION

La.Code Civ. P. art. 591(A) sets forth several requirements for establishing a class action, namely numerosity, commonality, typicality, adequacy of the representative, and objectively definable class. Additionally, La.Code Civ. P. art. 591(B)(3) provides “[t]he court [must find] that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy.” We have explained that “the predominance requirement is more demanding than the commonality requirement, because it ‘entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class,’ a process that ultimately ‘prevents the class from degenerating into a series of individual trials.’ “ Dupree v. Lafayette Ins. Co., 09-2602 (La.11/30/10), 51 So.3d 673 (quoting Brooks v. Union Pacific R. Co., 08-2035, p. 19 (La.5/22/09), 13 So.3d 546, 560). Recently, in Price v. Martin, 11-0853, p. 10 (La.12/6/11), 79 So.3d 960, we held that in order for a case to proceed as a class action, “there must be ‘significant proof,’ subject to ‘rigorous analysis,’ of a common question — one where the ‘determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ “ (quoting Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)).

In the instant case, the district court made a finding that “common issues of law and fact include: whether the chemicals released from the defendants’ tank cars were capable and did in fact cause the alleged damages to the plaintiffs; whether the defendants’ negligence caused damage to the class members.” The court reasoned | sthat resolution of these issues “would affect all or a significant number of putative plaintiffs.”

However, the district court failed to take into account undisputed evidence in the record demonstrating that any determination of damages will be dependent upon proof of facts individual to each putative class member. In particular, Dr. Marcus Iszard, plaintiffs’ toxicologist, testified that only those individuals with a unique susceptibility to ethyl acrylate would exhibit physical symptoms at the extremely low concentrations involved in the release, that this susceptibility would manifest itself in less than .1 percent of any given population, and determining whether any particular person was within this microcosm of the population would require an entirely individualized understanding of each person’s health, medical history, records, and other variables impacting exposure. In addition, Dr. Iszard testified that the dose of exposure would be impacted by important individual variables, such as the specific location of the plaintiff at the time of the exposure, and whether the plaintiff moved from location to location during the exposure. Similarly, the defense toxicologist, Dr. Wernke, testified the symptoms complained of by the plaintiffs, such as irritation of the eyes and nose, respiratory irritation, coughing, nausea, and vomiting, are not specific or unique to ethyl acrylate exposure, but are common symptoms with a myriad of causes.

Given this testimony, it is clear that each member of the proposed class will necessarily have to offer different facts to establish liability and damages. Certification under these facts would create precisely the situation we cautioned against in Brooks, i.e., the class would degenerate into a series of individual trials.

|4In summary, we conclude the district court erred in finding common issues of law and fact predominated for purposes of La.Code Civ. P. art. 591(B)(3). Therefore, the district court erred in certifying a class under these facts.

DECREE

For the reasons assigned, the writ is granted. The judgment of the court of appeal affirming the judgment of certification is reversed. The case is remanded to the district court for further proceedings.

JOHNSON, J., dissents and would deny the writ.

KNOLL, J., dissents and would deny the writ.

JOHNSON, J.

dissents.

I dissent from the per curiam and would deny the writ.

KNOLL, J.,

dissents.

I dissent from the per curiam and would deny the writ.

      . Because we do not believe plaintiffs satisfied the predominance requirement, we need not reach the question of whether plaintiffs could meet the other requirements for certifying a class action. However, we note Dr. Iszard’s testimony that symptoms of exposure to low levels of ethyl acrylate would manifest itself in less than .1 percent of any given population, which raises serious questions as to whether plaintiffs could satisfy the numer-osity requirement.


text:
    In re Justice of the Peace James E. NOLAN.
    No. 2012-O-0494.
    Supreme Court of Louisiana.
    March 9, 2012.
   ORDER

| j Considering the motion for interim disqualification filed by Justice of the Peace James E. Nolan, and the concurrence thereto by the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Justice of the Peace James E. Nolan, Ward 8, Ouachita Parish, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately-

FOR THE COURT:

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


text:
    Emile David LABORDE, II, et al. v. SHELTER MUTUAL INSURANCE CO., et al.
    No. 2012-CC-0074.
    Supreme Court of Louisiana.
    March 9, 2012.
   PER CURIAM.

| granted. It is well-settled that the trial court has broad discretion in regulating pre-trial discovery, and the trial court’s rulings will not be disturbed absent a clear showing of an abuse of that discretion. See Moak v. Illinois Central Railroad Co., 98-0788 (La.1/14/94), 631 So.2d 401; Laburre v. East Jefferson General Hosp., 555 So.2d 1381 (La.1990).

In the instant case, plaintiffs have not established the trial court clearly abused its discretion in excluding the evidence in question. Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court granting defendants’ motion in limine is reinstated. The case is remanded to the trial court for further proceedings.


text:
    STATE ex rel. Chauncey CHRISTOPHER v. STATE of Louisiana.
    No. 2011-KH-0601.
    Supreme Court of Louisiana.
    March 23, 2012.
   PER CURIAM.

|T Granted in part; otherwise denied. On application of relator to review the decision of the First Circuit affirming his convictions and sentences on five counts charging various degrees of robbery and attempted robbery, State v. Christopher, 10-1284 (La.App. 1st Cir.2/11/11), 57 So.3d 612 (Higginbotham, J., dissenting in part), we find no error in the court of appeal’s decision to affirm relator’s convictions and sentences involving victims Carroll, Bartha, Turner, and Lane, all of whom were the target of a single assailant in a string of robberies and attempted robberies committed at the same Bank One ATM on Government Street in Baton Rouge in a two-week period between May 4, 2005, and May 16, 2005. Relator acknowledged as much in a confession given the police following his arrest on May 16, 2005 by officers conducting a stake-out of the location after they observed him attempting to rob Stacey Lane. As to these crimes, the state carried its burden of negating any reasonable probability of 12misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983); State v. Long, 408 So.2d 1221, 1227 (La.1982). However, in his confession relator adamantly denied committing an earlier robbery at the same ATM machine in Baton Rouge on April 2, 2005. As to that robbery, the victim, Rene Vicknair, could not positively identify his assailant and gave a description at odds with relator’s appearance and with the descriptions of their assailant provided by the other victims, and described a seemingly isolated robbery that occurred one month before the series of crimes at the same ATM began that relator admitted committing. We agree with Judge Higginbotham that, even viewing the evidence in the light most favorable to this state, “any rational trier of fact could not have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of this count of first degree robbery.” Christopher, 10-1284, p. 1 (Higginbotham, J., dissenting in part) (citations omitted).

Accordingly, relator’s conviction and sentence on Count Three of the bill of information charging him with the first degree robbery of Rene Vicknair on April 2,' 2005, are set aside. In all other respects, the application is denied.


text:
    STATE of Louisiana v. Demond Fitzgerald COOK.
    No. 2011-K-2223.
    Supreme Court of Louisiana.
    March 23, 2012.
   PER CURIAM.

_JjWrit granted. The decision of the court of appeal is reversed in part, and the trial court’s adjudication and sentencing of defendant as a habitual offender are reinstated. The requirements of R.S. 15:529.1(D)(l)(a) that the court inform a defendant of the allegations in a habitual offender bill of information, and of his right “to be tried as to the truth thereof according to law,” should not serve as technical traps for an unwary but otherwise conscientious judge. It appears from the transcript of the habitual offender hearing that the trial court granted defendant’s request and reappointed defense counsel, whose representation he had waived during trial, for purposes of conducting the hearing. Counsel informed the court that she had reviewed with defendant the state’s documentary proof regarding his prior convictions, discussed “the ramifications of a hearing versus stipulating” to the allegations of the habitual offender bill, and that, “after much discussion,” defendant had decided to stipulate to his habitual offender status. The trial court had the right to rely on counsel’s assertions made in defendant’s | ¡.presence as an accurate reflection of his intentions. Cf State v. Phillips, 365 So.2d 1304, 1308 (La.l979)(valid waiver of jury trial made by counsel in open court in defendant’s presence); State v. Halsell, 403 So.2d 688, 692 (La.l981)(trial court may rely on counsel’s representation she had explained defendant’s rights to him; any other rule “would tend to undermine the relationship of trust that must necessarily exist between the bench and bar.”). After the state detailed on the record the allegations in the habitual offender bill with respect to defendant’s prior convictions and introduced its documentary proof of those convictions, and informed the court that its fingerprint expert was available to confirm defendant’s identity as the previously convicted offender, the trial court asked the defense if it, in fact, had any response. The record indicates that counsel once again conferred with defendant and that he thereafter personally responded, “No.” It therefore appears that defendant was fully informed of the allegations in the habitual offender bill and of his right to contest those allegations, with a correlative right to remain silent at the hearing, that he thereafter voluntarily stipulated to the habitual offender allegations after conferring with counsel, and that the trial court adjudicated him a habitual offender on the basis of not only his stipulation but also the documentary evidence introduced by the state at the hearing. Defendant’s interests were fully protected and any technical non-compliance with the statutory directives in R.S. 15:529.1(D)(l)(a) was harmless. See State v. Brown, 11-1656 (La.2/10/12), 82 So.3d 1232.


author: h JOHNSON, J.,

text:
    STATE of Louisiana ex. rel. Bobby Lee HAMPTON v. Burl CAIN, Warden.
    No. 2011-KP-1935.
    Supreme Court of Louisiana.
    March 23, 2012.
    JOHNSON, J., would grant with written reasons.
   h JOHNSON, J.,

would grant this writ application for the same reasons assigned in her dissent in State v. Hampton, 98-0331 (La.04/23/99), 750 So.2d 867, 892:

In the case sub judice, this court has affirmed Defendant’s death conviction despite the prosecution’s unconstitutional suppression of evidence favorable to Defendant. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the “prosecution’s suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The facts in Brady are virtually identical to the instant case. Defendants Brady and Boblit were charged with first degree murder while committing a robbery. At trial, Brady admitted participating in the robbery but denied killing the victim. Prior to trial, Brady requested the opportunity to examine Boblit’s extrajudicial statements. The prosecution withheld these statements, including Boblit’s confession to the actual homicide. Brady was subsequently convicted of first degree murder.
In the instant case, Colette Shinber-ger testified to the Grand Jury that Michael Williams, and not Defendant, actually shot the victim, Philip Coleman. The Grand Jury Foreman asked her whether she saw Michael Williams shoot the victim and she answered affirmatively. |2When the prosecutor asked whether she believed that Michael Williams shot the victim she responded “Yeah, I’m sure.” Defendant was never given a copy of Shinberger’s Grand Jury testimony. Although this clearly exculpatory evidence was suppressed, the majority suggests that Defendant was not denied a fair trial. The majority reasons that Shinberger gave two statements to the police in which she stated that she did not know who shot victim. This is of little consequence because Shinberger told the Grand Jury, under oath, that she was sure Michael Williams was the shooter. In fact, she told police in one statement that the only person she saw with a gun was Michael Williams. The prosecution’s failure to provide Defendant with this testimony was an unconstitutional denial of due process.

The exculpatory nature of Shinber-ger’s testimony is bolstered by the fact that Frank Tesnear and Colette Shin-berger are the only two surviving witnesses to the robbery. When the police interviewed Tesnear immediately after the robbery, he stated that the third perpetrator, Elbert Williams, was the actual shooter. Tesnear subsequently requested a second interview with police at which time he changed his opinion and stated that Defendant was the shooter. It is important to note that Tesnear did not actually see anyone shoot the victim. He based his conclusion on the trajectory of bullet holes in the doorway of the store and the relative locations of all three perpetrators.

This unconstitutional suppression of exculpatory evidence requires reversal of Defendant’s conviction and remand for a new trial on the merits.


author: ROLAND L. BELSOME, Judge.

text:
    BRADLEY ELECTRICAL SERVICES, INC. v. 2601, L.L.C. and J. Philip Stein. Notoco Industries, L.L.C. v. 2601, L.L.C. and Bradley Electrical Services, L.L.C.
    Nos. 2011-CA-0627, 2011-CA-0628.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.
    Donnie Lynn Floyd, Prairieville, LA, for Plaintiff/Appellant, Notoco Industries, Inc.
    Wessel & Associates, William F. Wessel, Victoria L. Bartels, New Orleans, LA, for Defendant/Appellee, 2601, L.L.C.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   ROLAND L. BELSOME, Judge.

|! This appeal arises from the trial court’s grant of summary judgment in favor of 2601, L.L.C. dismissing the claims of Noto-co Industries, L.L.C. and cancelling the lien filed in the mortgage records by Noto-co Industries, L.L.C. against 2601, L.L.C.

Notoco contracted with Bradley Electric Company to furnish electrical materials for improvements on a building located at 2601 Tulane Avenue, also known as the Tulane Towers. Bradley was performing electrical work on the building pursuant to a contract with 2601, L.L.C. Notoco contends that at the time the job was completed, Bradley owed Notoco a balance of $195,280.14. After notifying 2601, L.L.C.’s managing partner Philip Stein of the outstanding debt, Notoco filed a claim of lien pursuant to the Private Works Act. Later, Notoco filed a Petition on Lien naming 2601, L.L.C. and Bradley Electric Company as defendants. That action was consolidated with an earlier filed suit instituted by Bradley against 2601, L.L.C. seeking sums due pursuant to their contract.

| ¾2601, L.L.C. filed a motion for summary judgment challenging the sufficiency of Notoco’s claim of lien. The trial court determined that deficiencies in the claim of lien warranted the lien being cancelled.

The Louisiana Private Works Act provides a method for contractors and others to recover the costs of labors and/or materials from a party with whom there is no contract. A claim against the owner of the immovable is secured by filing a lien against the immovable on which, in this case, the materials were incorporated. La. R.S. 9:4822(G) mandates that the statement of privilege or lien meet specific requirements. The statement of claim or privilege:

(1) Shall be in writing.
(2) Shall be signed by the person asserting the same or his representative.
(8) Shall reasonably identify the immovable with respect to which the work was performed or movables or services were supplied or rendered and the owner thereof.
(4) Shall set forth the amount and nature of the obligation giving rise to the claim or privilege and reasonably itemize the elements comprising it including the person for whom or to whom the contract was performed, material supplied, or services rendered.

La. R.S. 9:4822(G).

In 2601, L.L.C.’s summary judgment, it claimed that Notoco’s lien was not properly perfected in the manner proscribed by the statute and therefore should be extinguished. More specifically, the lien failed to set forth the nature of the obligation giving rise to the claim and there was no itemization of the materials supplied. La. R.S. 9:4822(G)(4). The trial court, relying on Tee It Up Golf, Inc. v. Bayou State Construction, 09-855 (La.App. 3 Cir. 2/10/10), 30 So.3d 1159, agreed Rthat the lien had not been perfected in accordance with the requirements of the statute.

In Tee It Up Golf, the contractor Bayou State was hired by John Nobles and/or Tee it Up Golf to construct a strip mall and to do improvements on a private home. Id. A dispute arose between the parties and outstanding invoices were left unpaid. Subsequently, Bayou State filed materialman’s liens on each of the properties. Noble sought to have the liens can-celled for numerous deficiencies, including the “failure to reasonably itemize the elements comprising the amounts and obligations asserted.” Each of the liens stated the debt owed on “Materials Supplied” as a lump sum of $180,762.59.

On that specific issue, the Third Circuit found that simply inserting “a lump sum amount cannot meet the statutory requirement to set forth the amount and nature of the claim giving rise to the privilege.... ” Further, the court surmised that it was unreasonable to conclude that each property had the exact same amount of outstanding debt on materials and there was no attempt to itemize the elements comprising the amount claimed, also a requirement of the statute. Ultimately, the court affirmed the trial court’s ruling ordering that the liens be cancelled.

Relying on this Court’s opinion in Hibernia National Bank v. Belleville Historic Development L.L.C., 01-657 (La.App. 4 Cir. 3/27/02), 815 So.2d 301, Notoco argues that, the deficiencies complained of by 2601, L.L.C. amount to mere technical violations in the drafting of the lien which do not warrant the lien being cancelled. In Hibernia, contractor GCI Construction, Inc. filed a claim of lien against Belleville Historic Development, L.L.C. for sums owed on a contract to provide materials and labor on a project. The lien was filed together with the Rcontract and set forth the amount that the contractor maintained was owed and the following statement:

... to furnish labor material to construct twenty-one (21) condominium units at Belleville Condominiums, a project of Belleville Historic Development, L.L.C. Said work was performed as per the aforementioned contract.

Id. p. 8, 815 So.2d at 306.

This Court determined that the requirements of the statute needed to be balanced with the legislative intent of the statute, stating:

The trial court ignored the purpose of filing a lien affidavit. The comments following R.S. 9:4822 explain at section (G) that: ‘... The purpose of a statement or claim of privilege is to give notice to the owner (and contractor) of the existence of the claim and to give notice to persons who may deal with the owner that a privilege is claimed on the property.... Technical defects in the notice should not defeat the claim as long as the notice is adequate to serve the purposes intended.’

Id.

Using that reasoning, this Court found that the Hibernia lien was sufficient to meet the mandates of La. R.S. 9:4821(G).

In the instant case, we are faced with deficiencies that are more similar to those in Tee It Up Golf. The pertinent part of the Notoco lien reads:

There is an unpaid balance of One Hundred ninety five thousand two hundred eighty and fourteen cents ($195,280.14) Dollars, together with contractual interest per annum until paid, any assessed late fees, attorney’s fees of $150.00 plus all costs, for services rendered.

Again, the purpose of the lien is to give notice that the claim exists, not just to the owner but also to third parties. Thus, Notoco’s position that 2601, L.L.C. had sufficient notice prior to the filing of the lien, does not lessen its burden to provide specific information regarding the debt. In the Hibernia lien a third party could ascertain that the sum owed was for labor and materials used in the construction of 21 condominium units. In Notoco’s lien, not only do they not | ..¡itemize, there is not even a general description of the nature of the debt. A lump sum with no supporting description is more than a technical defect.

Accordingly, we affirm the trial court’s granting of summary judgment and order to cancel lien.

AFFIRMED

      . La. R.S. 9:4801, et seq.

      . La. R.S. 9:4802(B).


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Robert L. TURNER.
    No. 2011-KA-0952.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for State of Louisiana, Appellee.
    Edward R. Greenlee, Louisiana Appellate Project, LaPlace, LA, for Robert L. Turner, Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY C. LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| ;On 7 May 2010, the defendant, Robert L. Turner (“Turner”), was charged with second-degree battery. He entered a plea of not guilty. Turner’s counsel filed motions to suppress the evidence, the statement, and the identification; the district court denied the motions to suppress the statement and the identification and found probable cause to hold Turner for trial. On 30 September 2010, the jury found Turner guilty as charged. On 17 February 2011, counsel for Turner filed motions for a new trial, to quash the multiple bill of information, and to reconsider the sentence, all of which were denied the following day. Turner was adjudicated a multiple offender. He was sentenced to serve ten years at hard labor with credit for time served and concurrent with any other sentence. His motion for an appeal was granted.

On 27 February 2010, at 3002 America Street in New Orleans, Sandra Green (“Green”) invited some friends over for a birthday party Green’s granddaughter. The guests included Turner (Green’s stepson), the victim, Morris Young (“Young”); and Young’s girlfriend, Michelle Patterson (“Patterson”). During a card game a dispute arose when Young accused Turner of taking a twenty dollar bill placed on the table by Patterson. Patterson corrected Young and told him that | ¡¡the money was not her money. Young apologized to Turner. It appeared that the dispute was over. At approximately 11:00 p.m., Young and Patterson prepared to leave the house. They exited down the stairs at the rear of the house and Turner was standing at the base. As Young reached the base of the stairs, Turner, unprovoked, punched Young in the face. Young fell to the ground unconscious. Turner continued to beat Young and then fled the scene. An ambulance was called, and Young was transported to Touro Infirmary where he was placed in the intensive care unit. Young’s injuries included a broken jaw, a fractured skull, bleeding in his brain, a fractured hip, memory loss, and severe headaches.

New Orleans police were also called to the scene. Patterson told the responding officers that she thought that Young had been robbed. Subsequently, Detective Andrew Packer of the New Orleans Police Department investigation led him to interview Patterson. In a recorded interview Patterson described Turner and told Detective Packer that defendant was the person who struck Young. Based upon that information, the detective compiled a photographic line-up. Patterson positively identified Turner as the person who struck Young. Detective Packer also interviewed Green, who corroborated that Turner was the person who struck Young.

Turner was subsequently arrested. He initially denied that he had struck Young. After Detective Packer informed him that witnesses had identified him as the attacker, Turner admitted that he struck Young, but claimed that he only struck him one time. At trial, Patterson and Green positively identified Turner as Young’s attacker. Young testified that Turner was the person with whom he had had a verbal dispute during the card game at Green’s house on the night of the attack.

| ¾A review for errors patent reveals none. We do note, however, that Turner filed a post-judgment motion of acquittal (La.C.Cr.P. art. 821) on 17 February 2011. Although the minute entries of the court reflect no ruling on the motion, a review of the transcript of the multiple bill/sentencing hearing held on 18 February 2011 that the trial court simultaneously overruled the motion and the defendants motion for new trial. The transcript controls over the minute entry. State v. Jackson, 08-0286, p. 4 (La.App. 4 Cir. 4/29/09), 11 So.3d 524, 529, citing State v. Hall, 99-2887, p. 17 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, 63.

By his sole assignment of error Turner asserts that the trial court erred by allowing the prior recorded statement of Patterson to be played for the jury. He contends that when the statement was introduced and played for the jury, there had not been an express or implied charge made against Patterson by the defense that she was not credible, she had fabricated her testimony, or her motive in testifying had been placed at issue.

La. C.E. art. 801 defines “hearsay” as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.”

La. C.E. art. 801 D(l)(b) provides that a prior consistent statement of a witness is admissible “to rebut an express or implied charge against him of recent fabrication or improper influence or motive.” Such a statement is not hearsay.

In State v. Thomas, 30,490 (La.App. 2nd Cir.4/8/98), 711 So.2d 808 (a child rape case), the defense attorney during voir dire brought up the issue of whether the child was lying or had had things suggested to her. The state argued that it was entitled to bring witnesses forward to show that the child had testified consistently initially and in court. The court found that the trial court had not erred |4in overruling the defense objection pursuant to La. C.E. art. 801 D(1)(b). See also State v. Jones, 02-908 (La.App. 5 Cir.2/25/08), 841 So.2d 965.

Prior to Patterson being called to testify by the state, the following colloquy occurred during the cross-examination of Detective Packer:

Q. Now, Detective, you became involved in this investigation, as you said, about five, four or five days after the incident occurred, correct?
A. That sounds about right.
Q. Okay. And you were [sic] first became aware of the investigation because the sister of Mr. Young contacted you; is that correct?
A. Yes.
Q. Okay. And it was at that point that you began contacting people that you believed were people at the party that perhaps witnessed this incident, correct? A. Right.
Q. Okay. And Mr. Young’s sister gave you the name of Michelle Patterson, who is the fiancée or girlfriend of Morris Young, correct?
A. Yes.
Q. Okay. And Michelle Patterson, herself, had never tried to contact you? You had only tried to contact her; is that correct?
A. To the best of my knowledge, no, I don’t think she ever tried to contact me. I contacted her.
Q. Okay. And, prior to you contacting Michelle Patterson and speaking with Ms. Green, no person had come forward with any information with regard to this, this night; is that right?
A. Right, that’s correct.
Q. Now, your presentation of the photo lineup to Michelle Patterson, that was in the presence of Morris Young; is that correct?
A. No. No, it wasn’t.
IsQ. And Ms. Patterson told you that she had known Mr. Turner before; is that correct?
A. I’m—
Q. Ms. Patterson knew Mr. Turner before that night; is that correct?
MR. DALY: I’m going to object to hearsay.
THE COURT: Sustained.
* * *

Undoubtedly, defense counsel, in anticipation of Patterson’s testimony for the state, directed the above questions to Detective Packer to imply to the jury that Patterson may not have fully cooperated with the initial investigation, thereby questioning her credibility and motives. The fact that defense counsel knew that Patterson told the responding officers that she initially thought that Young had been robbed, implying that Turner was not the attacker and that she initially lied to the police, is evidenced by the following questions on cross-examination:

* * *
Q. Okay. Now, police did come to the house that night, correct?
A. Yes.
Q. And they actually talked to you?
A. Yeah.
Q. And you never told them about who hit Morris, correct?
A. Yes.
Q. Okay. And, in fact, when you all— when you were, you and Morris were leaving, you were actually still upstairs talking?
A. No, I was on the stairs.
Q. Now, earlier you stated that you thought he was being robbed?
A. That’s the first, yes—
IsQ- Okay.
A. —thing to come to my mind.
Q. And you said — but you realized that he wasn’t being robbed because he had all his stuff on him, right?
A. Yes.
Q. So that meant — so you didn’t really see what happened, right, Ms. Patterson?
A. Yes, I did_ I seen [sic] what happened.
Q. Okay, Now, Ms. Patterson, when Mr. Young came to in the hospital he actually said, “My brother did it.”
A. Yes.
Q. And to the best of your knowledge, Robert Turner is not his brother, correct?
A. Correct.

In the instant case, defense counsel laid the ground work for attacking Patterson’s subsequent testimony by the questions he asked Detective Packer. Patterson’s prior recorded statement was consistent with her trial testimony. Applying the reasoning in Thomas and Jones and La. C.E. art. 801 D(l)(b), we find no error in the trial court’s ruling admitting Patterson’s prior recorded statement to Detective Packer.

Even assuming that Patterson’s prior recorded statement constituted hearsay under La. C.E. art. 801 D(l)(b), a recorded recollection may still be admitted pursuant to the hearsay rule. La. C.E. art. 808(5) provides:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and 17accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence and received as an exhibit but may not itself be taken into the jury room. This exception is subject to the provisions of Article 612.
La. C.E. art. 612 B states:
In a criminal case, any writing, recording, or object may be used by a witness to refresh his memory while testifying. If a witness asserts that his memory is refreshed he must then testify from memory independent of the writing, recording, or object. If while testifying a witness uses a writing, recording, or object to refresh his memory an adverse party is entitled, ..., to inspect it, to examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

During direct examination by the state, Patterson had trouble recalling certain facts about the incident as evidenced by the following colloquy:

Q. Can you recall who all was outside when he was attacked?
A. No, I can’t recall who all was out there. Miss [Sandra Green] was, I know, because we was [sic] walking down the stairs together and I was clowning with her. We was [sic] just clowning around.
Q. Did you ever talk to a detective about this incident?
A. Yes, I did.
Q. And how did you end up talking to him?
A. Because in the hospital — in the hospital — these people — I can’t recall. I think — I’m trying to remember because I believe — well, I know in the hospital, sometime, I met him in the hospital at Touro.
Q. Did he ever have the occasion to show you a photographic lineup?
A. Yes, he did.
IsQ. If you saw that lineup would you recognize it today if I showed you a copy?
A. Of the — of everyone who was on that picture, you asking?
Q. If I just showed you the sheet that he showed you, would you recognize it? A. I don’t know.
[The prosecutor is then allowed to show Patterson the photographic lineup.]
Q. What do you recall as far as what the detective told you before he showed you that?
A. He had say [sic] that if — he was going to show me a picture — well several pictures — and ask me could I, could I identify the person. And that’s what he said. And then he showed me the pictures.
Q. And did you identify anybody?
A. Yes, I did.
Q. Okay. And how do you know that you identified him?
A. Uh?
Q. How do you know that you identified somebody by looking at that?
A. How do I know?
Q. Did you sign anything?
A. Did I sign anything?
MR. DALY:
Yeah.
THE WITNESS:
I don’t recall.
[Patterson’s prior recorded statement was admitted and played.]
⅜ *
Q. Ms. Patterson, was that statement true and accurate to the best of your recollection?
A. Yeah. Yes.

The record reflects that Patterson was having trouble recalling some of the facts surrounding the incident and her subsequent identification of Turner as the attacker. The admission of her prior consistent recorded statement falls within the ambit of La. C.E. art. 912 B and does not constitute inadmissible hearsay.

If we were to conclude that the trial court erred in admitted Patterson’s prior recorded statement, the trial court’s actions amounted to no more than harmless error that would not have changed the outcome of the trial. Our law and jurisprudence recognize that a trial error does not provide grounds for reversal of a defendant’s conviction and sentence unless it affects substantial rights of the accused. La C.Cr.P. art. 921; State v. Johnson, 94-1379, pp. 16-17 (La.11/27/95), 664 So.2d 94, 101-02. The test is whether a reasonable possibility exists that the error might have contributed to the conviction and whether the court can declare the error is harmless beyond a reasonable doubt. State v. Juniors, 03-2425, p. 54 (La.6/29/05), 915 So.2d 291, 331. The reviewing court must find that the verdict actually rendered was surely not attributable to the error. Johnson, 94-1379, pp. 16-17, 664 So.2d at 101—02.

In this case, our review of the record indicates that the Turner’s conviction rests on sufficient evidence even in the absence of the admission of Patterson’s prior recorded statement to Detective Packer; that is, the admission Patterson’s prior recorded statement to Detective Packer did not affect the verdict. The jury heard the consistent testimony of two state’s witnesses that Turner struck and |inbrutally beat Young as he lay unconscious on the ground. Detective Packer testified that Turner, following his earlier denial, admitted to striking Young, but once. Clearly, the jury rejected Turner’s attempt to mitigate his guilt.

The assignment of error is without merit.

CONCLUSION:

We affirm Robert L. Turner’s conviction and sentence.

AFFIRMED.