text:
    Kyle Ray HIMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2896.
    District Court of Appeal of Florida, First District.
    March 14, 2012.
    Frank J. Tassone, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General; Ralph F. Guerra and Edward C. Hill, Jr., Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Kyle Ray Himes appeals the circuit court’s summary denial of his amended motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Himes raised seven claims in the amended motion. Without attaching portions of the record, or holding an evi-dentiary hearing, the circuit court denied Himes’ claims.

Himes raises seven issues on appeal, arguing that the circuit court erred in summarily denying his claims without attaching portions of the record or holding an evidentiary hearing. After reviewing Himes’ brief, this court issued an order pursuant to Toler v. State, 498 So.2d 489 (Fla. 1st DCA 1986), directing the state to file a response addressing the claims raised by Himes in this appeal. The state filed a Response to the Toler Order, conceding that the order on appeal should be remanded for the circuit court to attach portions of the record or to hold an eviden-tiary hearing. We agree. Accordingly, we reverse the order on appeal and remand for the trial court to attach portions of the record or to hold an evidentiary hearing for all claims except the fifth claim.

BENTON, C.J., ROWE, and RAY, JJ., concur.

      . The circuit court sufficiently stated its rationale for denying this claim. See Diaz v. Dug-ger, 719 So.2d 865, 867 (Fla.1998).


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Margarette R. BROWN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Hillsborough County School Board, Appellee.
    No. 1D11-5425.
    District Court of Appeal of Florida, First District.
    March 16, 2012.
    Margarette R. Brown, pro se, Appellant.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee.
   MARSTILLER, J.

Margarette R. Brown has been employed by the Hillsborough County School Board as a substitute teacher since November 2008. She filed a claim for unemployment compensation benefits for the summer vacation period between the 2010-11 and 2011-12 school years. The Agency for Workforce Innovation denied the claim because benefits are not available between school terms or school years, or during established school vacations if the claimant has a reasonable assurance of being rehired for the next school term. An appeals referee affirmed the determination of ineligibility, and the Unemployment Appeals Commission (“Commission”) affirmed the referee’s decision, finding it supported by competent, substantial evidence.

We affirm the Commission’s order. Under section 443.091(3)(a), Florida Statutes (2010), unemployment benefits are not payable for instructional services at an educational institution during the period between academic years or terms if the individual seeking benefits performed those services in the first year or term and has a “contract or a reasonable assurance that the individual will perform services in any such capacity for any educational institution ... in the second of those academic years or terms.” Benefits are similarly not payable during “an established and customary vacation period or holiday recess ....” § 443.091(3)(c), Fla. Stat. (2010). Ms. Brown provided substitute teaching services during the 2010-11 academic year and submitted to the school board a signed Renewal Application and Substitute Teacher Agreement for the 2011-12 academic year. The agreement stated, inter alia: “I understand that returning the Renewal Application will ensure that I have a reasonable assurance of re-employment as a substitute teacher for the school term applied for....” Consequently, Ms. Brown is not eligible for unemployment compensation benefits for the period between academic years. See Parzik v. Unemployment Appeals Comm’n, 711 So.2d 636, 636 (Fla. 5th DCA 1998). We decline the invitation to interpret “reasonable assurance” to mean she must be guaranteed teaching assignments to be ineligible for benefits.

AFFIRMED.

WOLF and PADOVANO, JJ., concur.

       Now, the Division of Workforce Services, Department of Economic Opportunity. See § 20.06, Fla. Stat. (2011).


author: ROTHENBERG, J.

text:
    Elizabeth ZULON, Appellant, v. David PECKINS, Appellee.
    No. 3D11-1511.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Todd R. Schwartz, Miami, for appellant.
    Hugo L. Black, Jr., and Bonnie J. Lo-sak-Jimenez, Coral Gables, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   ON MOTION FOR CLARIFICATION

ROTHENBERG, J.

We grant the appellee’s motion for clarification, withdraw this court’s previous opinion dated February 8, 2012, and issue this opinion in its stead.

The appellant, Elizabeth Zulon, appeals from an order of the probate court removing her as co-personal representative of her father’s estate. Because removal was ordered without notice or an evidentiary hearing, “the ruling did not meet even the most rudimentary requirements of due process.” LoCascio v. Estate of LoCascio, 78 So.3d 573, 574 (Fla. 3d DCA 2011). We reverse and remand with instructions to reinstate the co-personal representatives; discharge Mr. Peckins as successor personal representative; and conduct a duly noticed evidentiary hearing regarding the removal of Elizabeth Zulon and Ana Zu-lon as co-personal representatives.

      . The probate court is of course free to appoint an administrator ad litem to assist in the administration of the estate until the motions for removal of the co-personal representatives have been resolved and if the prerequisites of Florida Probate Rule 5.120 are satisfied.

      . We note that Ana Zulon did not object to her removal and she did not appeal the probate order removing her. However, because Ana Zulon’s consent to her removal was clearly based on the probate court's expressed intent to replace both sisters with Mr. Pec-kins, and we have reversed that ruling, we restore Ana Zulon to her original position as co-personal representative to allow her to make an informed decision going forward.


author: PER CURIAM.

text:
    STATE of Louisiana v. William BIRTHA.
    No. 2010-OK-2526.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   PER CURIAM.

| granted in part. This case is remanded to the district court for further proceedings. The district court is directed to appoint counsel to represent relator and to conduct an evidentiary hearing on his interrelated claims that he was constructively denied the representation of counsel when the trial court appointed counsel on the morning of trial to try the case on that day after relator’s retained counsel failed to appear, and that appointed counsel then rendered ineffective assistance by pressing relator to plead guilty to four felony counts. In all other respects, the application is denied.

VICTORY and CLARK, JJ., would deny.


text:
    In re joseph Floyd JOHNSON.
    No. 2011-B-2810.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   PER CURIAM.

hOn November 10, 2010, respondent pleaded guilty in the United States District Court for the Western District of Louisiana to one count of tax evasion, a felony, in violation of 26 U.S.C. § 7201. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel (“ODC”) submitted a joint petition for consent discipline, in which respondent acknowledges that his criminal conviction constitutes a violation of Rules 8.4(b) and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Joseph Floyd Johnson, Louisiana Bar Roll number 17645, be and he hereby is disbarred, retroactive to December 7, 2010, the date of his interim suspension. 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 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:
    In re Lori P. MOSER.
    No. 2011-B-2790.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   PER CURIAM.

|/The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in several instances of “pre-billing” her clients for work she had not yet completed, all while on probation for engaging in similar misconduct. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. The parties stipulate to respondent’s misconduct, and seek her permanent disbarment from the practice of law.

Based on our review of the petition, we agree that permanent disbarment is the appropriate sanction in this matter. Accordingly, having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted. The name of Lori P. Moser, Louisiana Bar Roll number 25463, shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state.

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:
    In re Edward Bissau MENDY.
    No. 2011-B-2275.
    Supreme Court of Louisiana.
    Feb. 17, 2012.
   PER CURIAM.

h This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Edward Bissau Mendy, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

09-DB-053

Count I — The Tucker Matter

In February 2003, Michelle Tucker retained respondent to prepare income tax returns and negotiate a settlement with the IRS on her behalf. She paid respondent $2,000 of a $5,000 flat fee, and agreed to pay the balance upon completion and processing of an offer in compromise. Respondent subsequently participated in a conference call with Ms. Tucker and the IRS; however, Ms. Tucker claimed that she was the one who ultimately settled the tax issue.

Ms. Tucker also retained respondent to prepare organizational documents for her limited liability company. Respondent agreed to handle the matter for a $1,000 flat fee and filed documents with the Secretary of State. However, according to Ms. Tucker, the documents were for a “simple LLC,” and respondent’s services were not worth more than $300.

|aIn January 2004, Ms. Tucker delivered a letter to respondent’s office terminating his representation. In the letter, she also requested her file and a full refund of the fees she paid, to no avail. In February 2004, Ms. Tucker filed a complaint against respondent with the ODC.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(5) (failure to refund an unearned fee), 1.15(d) (failure to timely remit funds to a client or third person), and 8.4(a) (violation of the Rules of Professional Conduct).

Count II — The Fuller Matter

In January 2004, Carrol and George Fuller hired respondent to represent them in a pending Chapter 13 bankruptcy proceeding. They paid respondent $500 and agreed to pay him an additional $1,000 at the completion of the bankruptcy.

Respondent subsequently determined that filing another Chapter 13 plan was the best option for his clients; however, he failed to file the petition as promised. In April 2004, the Fullers received notice that their mortgage company had begun the foreclosure process on their home and that a sheriffs sale was scheduled for June 2004. When Mrs. Fuller contacted respondent regarding the status of the case, he informed her that the bankruptcy petition had not been filed and that he could not assist them as the bankruptcy court had recently issued an order in another case enjoining him from practicing before the court.

Thereafter, the United States Trustee’s Office brought a motion to examine the fees and transactions regarding Mr. and Mrs. Fuller’s bankruptcy. During a hearing, respondent admitted that in June 2004, his secretary had assisted the Fullers in preparing a bankruptcy petition, schedules, and statements. In August 2004, the Fullers filed a complaint against respondent with the ODC.

|sThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.4(a), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count III — The Vaughn Matter

In November 2002, Woodrow Vaughn paid respondent’s firm a $3,000 fee to handle his wife’s succession. Under a separate contract, Mr. Vaughn paid respondent a $10,000 fee to handle a tax matter. Respondent agreed to provide a quarterly report regarding the status of the tax matter and any expenses incurred, which he failed to do. In April 2003, Mr. Vaughn contacted respondent to inquire about the status of his cases, at which time Mr. Vaughn learned his succession documents had been lost. Mr. Vaughn provided respondent with copies of the documents, but was required to post a bond to file the succession.

In May 2003, Mr. Vaughn delivered a letter to respondent’s office terminating his representation. In the letter, Mr. Vaughn requested an accounting and a return of his file and tax documents, to no avail. Respondent agreed to participate in the Louisiana State Bar Association’s (LSBA) Fee Dispute Resolution Program regarding the fees charged to Mr. Vaughn, but he failed to appear for two scheduled hearings. In September 2004, Mr. Vaughn filed a complaint against respondent with the ODC. Three months later, the arbitrator rendered a $10,500 judgment against respondent. Respondent did not timely pay the judgment to Mr. Vaughn.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5(f)(5), 1.15(d), and 8.4(a).

1409-DB-073

The Mentor Matter

In April 2004, Pamela Mentor retained respondent to handle a foreclosure proceeding brought against her. Respondent advised Ms. Mentor that he would seek to arrest the proceeding, and in the alternative and/or in conjunction with the foreclosure, he would file a Chapter 13 bankruptcy to save her home from foreclosure. Ms. Mentor paid respondent $1,500 for the representation, which sum he told her would be refunded if he was unable to arrest the sale or obtain a bankruptcy stay of the foreclosure. However, respondent did not file a bankruptcy petition, and Ms. Mentor’s home was subsequently sold at a sheriffs sale. In May 2005, Ms. Mentor filed a complaint against respondent with the ODC.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3, 1.4, 8.4(a), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).

DISCIPLINARY PROCEEDINGS

In August 2009, the ODC filed the formal charges in 09-DB-053, and in December 2009, filed the formal charges in 09-DB-073. Respondent answered both sets of formal charges and admitted some of the factual allegations set forth therein, but denied any misconduct. The hearing committee chair then signed an order consolidating both sets of formal charges.

Hearing Committee Report

The consolidated matters proceeded to a hearing before the hearing committee. After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

Un the Tucker matter, the committee determined the ODC did not establish by clear and convincing evidence that the $2,000 fee Ms. Tucker incurred for the tax matter and the $1,000 fee incurred in connection with the limited liability company were unreasonable or excessive. However, respondent failed to return Ms. Tucker’s file and failed to hold disputed funds in trust, in violation of Rules 1.5(f)(5) and 1.15(d).

In the Fuller matter, the committee determined that after meeting with Mr. and Mrs. Fuller in January 2004 to discuss options available to prevent foreclosure of their home, respondent enrolled in March 2004 as counsel of record in their pending bankruptcy matter. One month later, respondent was sanctioned by the bankruptcy court in an unrelated proceeding. Around the same time, Mrs. Fuller received notice that her home was in foreclosure and was scheduled to be sold at a sheriffs sale on June 15, 2004. She contacted respondent regarding the status of her case and was informed that the bankruptcy petition had not been filed and that respondent would not be able to represent her because the bankruptcy court had imposed sanctions against him. Because the Fullers were desperate, they pleaded with respondent’s secretary to help them prepare the filings to be submitted pro se. Respondent then allowed his secretary to help the Fullers prepare the necessary documents to file with the bankruptcy court. Respondent’s secretary also prepared an amendment correcting a deficiency in the initial filing.

The committee found that while it was unclear whether respondent intended to circumvent the bankruptcy court’s order enjoining him from practicing before the court or filing any pleadings, upon review of the transcript from the court’s sanction hearing, it seemed the “desperate circumstances” faced by the Fullers in June 2004 would not have existed had respondent timely taken appropriate action | Bwhen he was retained in January 2004. The bankruptcy court found deficiencies in both the filings prepared by respondent before he was suspended and in the filings prepared by his secretary after he was suspended. In acting as he did, the committee found respondent violated Rules 1.3 and 8.4(d).

In the Vaughn matter, the committee made factual findings consistent with the chronology of events set forth in the underlying facts section above and determined he violated Rules 1.3, 1.4, 1.5(f)(5), and 1.15(d).

In the Mentor matter, the committee found respondent filed a petition to enjoin the foreclosure of Ms. Mentor’s home. He was then contacted by the attorney for the lender, who indicated that, instead of going forward with the foreclosure, the bank would work with Ms. Mentor to reinstate the loan. Respondent forwarded the reinstatement information to Ms. Mentor on July 13, 2004, and he takes the position that the representation was completed at that time. However, Ms. Mentor apparently could not raise sufficient funds to reinstate the loan. Ultimately, foreclosure proceedings were reopened and in April 2005, Ms. Mentor’s house was seized and sold. The ODC takes the position that upon Ms. Mentor’s inability to reinstate the loan, respondent should have filed a bankruptcy petition on her behalf, or at the very least, should have notified her that the petition to enjoin the foreclosure of her home had been set for hearing.

The committee acknowledged that it seems likely respondent would have received notice of the hearing, and that he should have communicated with Ms. Mentor, if not actually appeared in court and/or taken some other action on her behalf. However, the committee determined that there is no evidence in the record that respondent actually received notice of the hearing or of the seizure and sale of the home. Therefore, the ODC did not establish by clear and convincing evidence that respondent failed to properly communicate with Ms. Mentor or failed to provide competent representation.

17Based on the testimony adduced at the hearing, including the demeanor of respondent and other witnesses, the committee concluded that, on the whole, respondent’s failures were negligent, and that he did not act with the intent to defraud or deceive. Respondent failed to make restitution to Mr. Vaughn for a period of over six years, even after the obligation had been reduced to judgment. The committee acknowledged respondent’s financial difficulties, including the loss of his office during Hurricane Katrina, but stated “it is fundamental to the nature of the profession that attorneys place the interests of their clients before their own.” Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction is suspension from the practice of law.

The committee found the following aggravating factors are present: prior disciplinary offenses, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and indifference to making restitution. The committee found the following mitigating factors are present: absence of a dishonest or selfish motive, personal or emotional problems, imposition of other penalties or sanctions, and remoteness of prior offenses.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee also recommended respondent be ordered to make full restitution to Mr. Vaughn, with interest.

The ODC filed an objection to the committee’s report and recommendation. With regard to the Mentor matter, the ODC objected to the committee’s finding that respondent properly communicated with his client and provided competent ^representation. The ODC also objected to the committee’s recommended sanction as too lenient. Respondent did not file an objection to the committee’s report and recommendation. However, in his brief to the disciplinary board, respondent alleged the committee committed various errors and argued that the sanction recommended by the committee is too harsh.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings do not appear to be manifestly erroneous, with one minor exception. In addition, in the Vaughn matter, the board noted that after the formal hearing, respondent introduced into evidence a canceled check payable to Mr. Vaughn in the amount of $7,500. This amount, combined with the $3,000 in restitution respondent had already paid, covers the total sum owed to Mr. Vaughn.

The board determined respondent violated the Rules of Professional Conduct as follows:

In the Tucker matter, the board determined the committee properly concluded that respondent violated Rules 1.5 and 1.15. Having violated these rules, the board determined respondent also violated Rule 8.4(a).

In the Fuller matter, the board determined the committee properly concluded that respondent violated Rules 1.3 and 8.4(d). Respondent also violated Rule 1.4 when he failed to keep the Fullers reasonably informed about the status of their second bankruptcy matter, his suspension from practice during the pendency of the bankruptcy proceeding, and the problems associated with the third bankruptcy petition filed on their behalf. Having violated these rules, the board determined respondent also violated Rule 8.4(a).

In the Vaughn matter, the board determined the committee properly concluded that respondent violated Rules 1.3,1.5, and 1.15. Having violated these |9rules, the board determined respondent also violated Rule 8.4(a). However, the board concluded the ODC did not prove respondent violated Rule 1.4, as Mr. Vaughn testified that during the representation, he had a number of meetings with respondent, spoke with him by phone, and communicated with him via email.

In the Mentor matter, the board cited respondent’s failure to conduct any negotiations on Ms. Mentor’s behalf regarding a settlement and failure to appear in court for the scheduled hearing dates concerning the injunction. As a result of these failures, the foreclosure action proceeded against Ms. Mentor. Respondent also failed to file a bankruptcy petition on Ms. Mentor’s behalf to stop the foreclosure proceedings, which he agreed to do. Although respondent claimed he was hired only to obtain the preliminary junction, the board rejected this argument given the terms of his engagement. As to this misconduct, the board concluded respondent violated Rules 1.1, 1.3, 1.4, and 8.4(a). However, the board concluded the ODC did not prove respondent violated Rule 8.4(c), as the record shows respondent simply did not provide competent representation.

The board determined respondent violated duties owed to his clients, the profession, and the legal system. While his conduct in some instances was negligent, in other matters, his conduct was knowing and intentional. His misconduct in the Mentor matter resulted in significant actual harm, as Ms. Mentor lost her home. In the remaining matters, the potential for significant injury was | mgr eat and respondent’s clients were forced to find others to assist them in their respective matters. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is suspension.

The board found the following aggravating factors are present: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and “initial” indifference to making restitution. The board found the following mitigating factors are present: personal or emotional problems and the imposition of other penalties or sanctions.

Based on this court’s jurisprudence, the board recommended respondent be suspended from the practice of law for three years. The board also recommended respondent be ordered to participate in the LSBA’s Lawyer Fee Dispute Resolution Program to determine if restitution is owed to Ms. Tucker or to the Client Assistance Fund for payments made to Ms. Mentor. Due to the lengthy period of time it took respondent to make restitution to Mr. Vaughn, the board also recommended respondent pay interest on the amounts due to Mr. Vaughn from December 2004 to August 2010.

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 independent re-view of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held |nthe manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record in this matter supports the hearing committee’s findings of fact, as modified by the disciplinary board. Essentially, respondent neglected legal matters, failed to communicate with clients, failed to account for or refund unearned fees, and failed to return his clients’ files.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. 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 any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent violated duties owed to his clients, the profession, and the legal system. His misconduct resulted in serious actual harm in the Mentor matter and created the potential for significant injury in the remaining matters. The baseline sanction for respondent’s misconduct is suspension from the practice of law.

The following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and indifference to making restitution. The following mitigating factors are present: personal or emotional problems and the imposition of other penalties or sanctions.

Turning to the issue of an appropriate sanction, we note that in In re: Brown, 04-1119 (La.1/14/05), 892 So.2d 1, the attorney neglected the legal matters of 112five clients, failed to communicate with his clients, failed to return unearned legal fees owed to two clients, failed to safeguard one client’s property, and failed to cooperate with the ODC, causing actual injury to his clients. Considering this misconduct, we found that Mr. Brown “demonstrated in a convincing fashion that he has no regard for the welfare of his clients or for his professional obligations” and imposed a three-year suspension from the practice of law.

Under the circumstances, we agree that a three-year suspension, as suggested by the disciplinary board, is an appropriate sanction for respondent’s misconduct. Accordingly, we will adopt the disciplinary board’s recommendation. We will also order respondent to make full restitution to his clients, or to the bar association’s Client Assistance Fund, as applicable.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Edward Bissau Mendy, Louisiana Bar Roll number 22117, be and he hereby is suspended from the practice of law for three years. It is further ordered that respondent make full restitution to each of his clients subject of the formal charges, or to the Louisiana State Bar Association’s Client Assistance Fund, as applicable. 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.

      . According to Ms. Tucker, she was on the telephone for over an hour articulating the problem to the IRS while respondent mostly listened.

      . The Fullers had already filed a Chapter 13 plan which remained active; however, they had fallen behind in their mortgage payments, and thus they were concerned about the foreclosure issue.

      . In 2001, this court considered a proceeding involving two counts of formal charges against respondent for. misconduct which occurred between 1993 and 1999. These charges alleged that respondent incompetently handled his clients' legal matters, neglected and failed to expedite legal matters, failed to communicate with clients, and failed to cooperate in the disciplinary proceedings. After considering the record, we suspended respondent from the practice of law for six months, followed by a six-month period of probation. In re: Mendy, 01-1462 (La.8/31/01), 793 So.2d 1225.

      . The board focused on the following language in the retainer agreement signed by Ms. Mentor:
      We represent you in the foreclosure matter brought against you by Countrywide Home Loans Servicing and to [sic] seek to arrest the foreclosure proceeding broungh [sic] against you. Alternative and/or in conjunction with the above, we also agree to pursue file [sic] a Chapter 13 Bankruptcy proceeding to assure you [sic] protection and save your house from the foreclosure proceeding.

      In connection with our efforts, we will conduct all negotiations for settlement purposes, and will perform any tasks that are necessary including conduct [sic] discovery, prepare [sic] for conferences, and conduct [sic] appeal.


author: COOKS, J.

text:
    STATE of Louisiana v. David Lynn SAUCIER.
    No. 11-246.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 2011.
    Rehearing Denied Dec. 21, 2011.

      James C. “Jam” Downs, District Attorney, Numa V. Metoyer, III, Assistant District Attorney, Alexandria, LA, for Appel-lee, State of Louisiana.
    Dmitre I. Burnes, Alexandria, LA, for David Lynn Saucier.
    Court composed of Judges SYLVIA R. COOKS, OSWALD A. DECUIR and JIMMIE C. PETERS.
   COOKS, J.

| .FACTS AND PROCEDURAL HISTORY

Defendant, David Saucier, was convicted of stalking his former wife, Candace Saucier, by following her on a motorcycle from the home of a friend to TCBY, a yogurt shop. He has a previous conviction for stalking her in April 2009. Defendant was charged by a bill of information with stalking, second offense, a violation of La.R.S. 14:40.2(A) and (B)(4). Defendant was tried before the bench on July 30, 2010, and was found guilty as charged. He was sentenced on August 13, 2010, to ten years imprisonment without the benefit of probation, parole, or suspension of sentence.

Defendants “Motion to Reconsider Sentence Pursuant to C.Cr.P. art. 881.1” was filed on September 10, 2010. A hearing was held on February 14, 2011, following which the trial court denied the motion.

Defendant has perfected a timely appeal and alleges: (1) The evidence presented at trial was insufficient to sustain the verdict of guilty of a violation of LA. R.S. 14:40.2, stalking, second offense; (2) the trial court erred by “testify” [sic] and using facts not in evidence to reach the verdict of guilty; (3) the trial court erred in finding that defendant was the only one who would know Ms. Saucier and Ms. Lafitte and basing its guilty verdict thereon; (4) the trial court erred by making improper statements at the sentencing and on hearing on the Motion to Reconsider Sentence; and (the trial court erred by imposing an excessive sentence (and denying the Motion to Reconsider Sentence) and sentenced [sic] Defendant to serve ten years at hard labor.

After reviewing the record, we find there are no errors patent.

| .ASSIGNMENT OF ERROR NUMBER 1:

In this assignment of error Defendant argues that the evidence was insufficient to support a conviction because the testimonies of the two States witnesses “were riddled with contradictions and implausible statements.” He also argues that the facts as presented at trial proved he was not the man who followed Ms. Saucier and her friend to the TCBY on the motorcycle.

At the beginning of trial, the State entered into evidence lower court case file, docket number 295,456, wherein Defendant was charged with one count of stalking and one count of criminal damage to property. He pled guilty on April 1, 2009, to two counts of stalking, one of the counts under docket number 295,456 and a prior charge, and to two counts of violation of protective orders. The State dismissed the charge of criminal damage to the victims property and a third charge of stalking.

The State also entered into evidence lower court case file, docket number 200,-630, which contained four orders of protection beginning in 2000, including an order of protection which was in affect at the time of the current incident, all directing defendant desist from certain contact with his ex-wife. Defendant did not object to the introduction of these court documents.

Candace Saucier testified that she and Defendant met in 1993. In 1996, she and Defendant had a son. They married in 2000 and divorced the following year. She testified that on the morning of May 5, 2009, she went to city court regarding an allegation of simple battery Defendant made against her. She stated the charge was dismissed. Shortly after noontime, she went to visit a friend, Jacquelyn Lafitte, at her apartment. When she and Ms. Lafitte left the apartment to go to the TCBY, she saw a neon yellow motorcycle drive Rrapidly by and thought Defendant was the driver. She testified that while waiting at a stop light, she saw him again sitting on the bike in the Goodyear parking lot. This time she was certain it was Defendant. She further stated that Ms. Lafitte also recognized Defendant for certain this time. According to Ms. Saucier, when they pulled into the parking lot of TCBY, in the Emerald Square Shopping Center, Defendant continued down the street. As they were ordering their ice cream, Defendant drove by the TCBY several times. Eventually, he drove into the parking lot and came right in front of the door areas where TCBY is and stopped and revved up the motorcycle then took off. Ms. Saucier described the shop and stated that the front of the shop was all glassed in and she had a clear view of the parking lot through the front window.

Ms. Saucier testified that she feared Defendant. She stated that she has feared him since I put my first charge on David, in 1998.

Jacquelyn Lafitte’s testimony regarding the incident was essentially the same as Ms. Saucier’s, except that she said that she did not see him drive into the TCBY parking lot and up to the front door. She did, however, testify that he revved the bike every time he drove by and looked at them.

Rodney Wells (Wells) testified he has known Defendant for years and that Defendant often did mechanical work for him. He stated that he owned the neon yellow motorcycle at the time of the incident. According to Wells, Defendant sometimes rode the bike, he sometimes rode the bike, Mark Hennigan sometimes rode the bike, but his son, Justin, usually rode the bike. He further stated he did not recall if Defendant had the motorcycle on May 5, 2009. Mark Hennigan testified that he purchased the neon yellow motorcycle and Isthat Defendant had not ridden the bike since he owned it. He testified he did not recall when he purchased the bike nor did he recall whether he used the bike on May 5, 2009.

Christine Gaspard was the TCBTs employee working on May 5, 2009. She stated she remembered the day specifically because it was her birthday. She did not remember anything untoward happening in or in front of the shop that day.

Defendant testified and denied he was the rider of the neon yellow motorcycle on May 5, 2009. He stated, after being in city court that morning, he worked with Rodney Wells repairing a travel trailer the rest of the afternoon.

Defendant premises his sufficiency argument entirely on the contention that the two State’s witnesses made up the “story.” He argues that the “the two states witnesses are irreconcilable on key facts.... of such monumental importance that it calls into question the truthfulness of the entire story.” The contradictions Defendant asserts as “monumental” were whether Defendant drove past the TCBY on Jackson Street, or on the service road that “goes right beside 'TCBY”; whether Defendant was driving at a high rate of speed when they first saw him in front of Ms. Lafitte’s apartment house as stated by Ms. Saucier or a slow rate of speed, as stated by Ms. Lafítte; and whether Defendant pulled the bike into the TCBY parking lot. Defendant also points out while Ms. Lafítte testified that she asked the shop’s employee for a phone book to look up the police department’s number, the clerk testified that no one asked her for a phone book that day.

Defendant further argues his defense witnesses testimonies’ established the unlikeliness of the victims and Ms. Lafitte’s story. The record, however, reveals the three defense witnesses’ testimonies did not refute Ms. Saucier’s or Ms. Lafitte’s contention that it was Defendant on the neon yellow motorcycle on the afternoon of May 5, 2009.

In State v. Ryan, 07-504, pp. 2-3 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268, 1270, while discussing sufficiency of the evidence, this court noted:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
State v. Lambert, 97-64, pp. 4-5 (La. App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27. Thus, ‘[i]t is not the function of an appellate court to assess credibility or reweigh the evidence.’ State v. Smith, 94-3116, p. 2 (La.10/16/95), 661 So.2d 442, 443.

In State v. Milton, 06-550, p. 7 (La.App. 3 Cir. 9/27/06), 939 So.2d 678, 682, writs denied, 07-643 (La.12/7/07), 969 So.2d 625, and 07-1140 (La.12/7/07), 969 So.2d 627, this court stated:

“The resolution of a matter where conflicting testimony exists requires a determination of credibility of the witnesses and is a matter of weight of the evidence and not sufficiency.” State v. Mitchell, 01-0872, p. 9 (La.App. 3 Cir. 2/13/02), 815 So.2d 1041, 1047, writ denied, 02-0785 (La.11/8/02), 828 So.2d 1110, (quoting State v. Taylor, 96-1043, p. 5 (La.App. 3 Cir. 2/5/97), 688 So.2d 1262, 1267). While the witnesses’ testimonies are not particularly specific, we find that they are not so inconsistent that the jury’s determination was irrational, “especially in light of its function as a fact-finder and the deference given its credibility determinations[.]” Id.

We find, upon reviewing the trial testimony, that the referenced “inconsistencies” in Ms. Saucier’s and Ms. Lafitte’s testimonies are not such that would have resulted in an irrational finding of guilt. Their testimonies were in agreement on the salient points; they 17both saw Defendant outside Ms. Lafitte’s apartment on a neon yellow motorcycle; they saw him again in route to the TCBY; they saw him at the TCBY; and they saw him pass by the front of the yogurt shop several times on the neon yellow motorcycle.

At the time of the offense, La.R.S. 14:40.2 provided, in pertinent part, as follows:

A. Stalking is the willful, malicious, and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the willful, malicious, and repeated uninvited presence of the perpetrator at another person’s home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal or behaviorally implied threats of death, bodily injury, sexual assault, kidnaping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.
C. For the purposes of this Section, the following words shall have the following meanings:
(1) “Harassing” means the repeated pattern of verbal communications or nonverbal behavior without invitation which includes but is not limited to making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures.
(2) “Pattern of conduct” means a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person. Constitutionally protected activity is not included within the meaning of pattern of conduct.

In Ryan, 969 So.2d at 1271-78, this court discussed the elements of stalking, as follows:

In State v. Higginbotham, 00-1782 (La.App. 5 Cir. 5/16/01), 790 So.2d 648, writs denied, 01-1756 (La.5/3/02), 815 So.2d 95, the fifth circuit examined the sufficiency of the evidence introduced to support a stalking conviction. In his appeal, the defendant asserted that the evidence of his standing near the victim’s home and passing her home in his truck did not establish “following” and that his activities did not constitute “harassing” because they were constitutionally protected. The fifth circuit agreed that there had been no evidence submitted to fulfill the “following” element of the stalking statute. Id. However, the fifth circuit concluded that the defendants actions had been “harassing” as contemplated by the statute.
1 sHigginbotham’s victim had seen him near her home on several occasions. During two of the incidents, Higginbotham had menaced her. The defendant also called the victims house several times a day at all hours. During two of the calls, the defendant had threatened to kill the victim, and one of the death threats included sexual violence. The fifth circuit held that the collective incidents clearly demonstrated that the defendant had willfully, maliciously, and repeatedly harassed the victim over a period of time with the intent to inflict a continuity of emotional distress upon the victim including the fear of death or bodily injury. Accordingly, the fifth circuit found sufficient evidence to support Higginbotham’s stalking conviction.
In State v. Rico, 99-158 (La.App. 3 Cir. 6/2/99), 741 So.2d 774, writ denied, 99-1883 (La.12/10/99), 751 So.2d 244, this court found insufficient evidence to support the defendants stalking conviction. This court concluded that the defendant’s actions of following someone while that person drove to a series of three different locations constituted one “following” instead of the repeated “followings” required under the stalking statute. This court further found that the defendant had not verbally threatened the person he had been “following.” Additionally, this court held that the defendants actions did not constitute a physical threat. Rico did not verbally threaten the victim. Although he followed closely, he did not stop when the person he was following exited her car and went inside her house; he passed the persons home and turned around; the defendant did not use his vehicle to ram or hit the persons automobile; and, the defendant did not follow as the other car drove behind a building but waited for the vehicle to emerge from behind the building. This court determined that stalking is a specific intent crime and these actions did not evidence the requisite specific intent.
In State v. Young, 96-2079 (La.App. 1 Cir. 5/l[15]/98), 712 So.2d 273, writ denied, 98-1598 (La.2/5/99), 737 So.2d 740, the first circuit reversed a defendant’s stalking conviction. Young had been convicted of stalking a judge who had ruled against him in civil proceedings. The defendant, who was a pro se litigant, had made several calls to the judge’s staff in the attempt to either speak to the judge or obtain a status conference. Young had been present at the courthouse or in the judge’s courtroom on a number of occasions when the defendant’s case was not docketed. During those times, Young reportedly stared disdainfully at the judge. The defendant had also called the judges former secretary. The judge had seen a parked car with an unidentified occupant parked near his home. Finally, as the judge returned to work after seeing the car parked near his residence, he saw Young exit an alleyway near the courthouse and stare at him.
The Young court concluded that any rational trier of fact would have had reasonable doubt that the defendant was guilty of stalking. The first circuit found that the prosecution had failed to prove one of the elements of stalking: “following.” The Young court also concluded that the prosecution |3had failed to satisfy the element of stalking alternate to “following”: “harassing.” The first circuit conceded that the defendants behavior had been annoying, but Young had a constitutionally protected right to be present in or around the courthouse even on days when his case was not on the docket because the building was open to the public. Moreover, the defendants phone calls and letters seeking to speak with the judge had been inappropriate before he became a pro se litigant, but once Young began representing himself, that contact became reasonable for court business. Additionally, the defendants call to the judges former secretary could reasonably have been for the purpose of gathering information to add to the disciplinary complaint Young had been in the process of compiling against the judge.
The first circuit also determined that stalking is a specific intent crime and found that, even assuming that the State had successfully proven willful, malicious, and repeated “harassing,” the trial court should have had reasonable doubt that Young acted with the requisite specific intent. Notably, the prosecution failed to demonstrate both that the defendant had ever spoken to the judge outside of the courtroom except in relation to his civil case and that Young had ever conveyed a threat or a semblance of a threat either orally, in writing, or physically. Thus, the State failed to prove that the defendant had the specific intent to place the judge in fear of death or bodily injury.

In Ryan, the defendant, who was convicted of one count of stalking, drove slowly by the house of a state trooper several times one day, staring hard at the house. On one pass, he saluted the trooper as the trooper stood outside watching him. The defendant and the trooper and his wife did not know each other, but the wife testified the defendant’s behavior frightened her. The defendant admitted he drove by their house several times, stating that he was looking for another trooper whom he had read about in the newspaper and wanted to see what he looked like. While, the trial court found that “his driving up and down that road constitutes a pattern of conduct evidencing his intent to inflict a continuity of emotional distress,” this court did not agree. Id. at 1271. After discussing the above cases, this court stated:

The difference between the reversals issued in Rico and Young and the affir-mance in Higginbotham appears to be whether the State presented evidence that the defendant made any overt threat of death or bodily injury to the victim in order to prove the specific intent requisite to support a stalking | inconviction. In this case, there is no evidence that Defendant followed the Wrights. Thus, in order to prove stalking, the State must have proven that Defendant harassed the Wrights, which means that the prosecution must have introduced evidence showing that Defendant committed a series of acts, i.e., verbal or nonverbal communications addressed to the Wrights, evidencing his specific intent to inflict a continuity of emotional distress upon them. La.R.S. 14:40.2.
Louisiana Revised Statutes 14:40.2 does not specifically define “following,” and the Higginbotham, Rico, and Young courts all seemed to apply the standard interpretation of the term “following” to their cases: pursuit by traveling after. The Higginbotham court determined that driving past or standing near someone’s abode did not constitute “following.” Higginbotham, 790 So.2d at 650. The Rico court found a “following” when the accused closely pursued the victim. Rico, 741 So.2d at 777. The Young court concluded that parking near someone’s home and frequenting areas where and at times the alleged victim would typically be present did not constitute “following.” Young, 712 So.2d at 285. Therefore, as Defendant did not pursue the Wrights, the State failed to establish a “following” in this instance.
A stalking may occur when a perpetrator willfully, maliciously, repeatedly, and uninvitedly is present at someone’s home and the perpetrator makes verbal or behaviorally implied threats that would cause a reasonable person to become alarmed or suffer emotional distress. Id. Because constitutionally protected activity is not included in the prohibited actions; because Defendant had the right to travel on the public roadway, use the parking area of the public walking park, and access the pub-lie areas of the apartment complex; and, because driving on the road and turning around in public parking areas do not constitute communication, those actions should not be considered a series of acts constituting harassment.
Since the State failed to prove that Defendant had the specific intent to commit stalking through submitting evidence showing that Defendant verbally or behaviorally communicated a threat to either of the Wrights, the prosecution failed to prove beyond a reasonable doubt that the Defendant was guilty of either stalking or attempted stalking. Therefore, the trial court, as a reasonable trier of fact, should not have found the essential elements of stalking proven beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. Accordingly, we reverse Defendants conviction, vacate Defendant’s sentence, and enter an order of acquittal.

Id. at 1273-74 (footnote omitted).

_|_yln the current case, unlike in Ryan, Defendant and Ms. Saucier knew each other and, according to testimony and other evidence, had a very acrimonious relationship. Also according to testimony, Ms. Saucier saw Defendant first outside Ms. Lafitte’s apartment building, a second time in a parking lot while she was waiting at a stop light, and the third time at the TCBY, where she testified he drove by several times and once into the shop’s parking lot. Ms. Saucier testified he stopped the bike by the shops front door and revved the bike acting in a manner that frightened her.

In State v. Plaisance, 07-822 (La.App. 5 Cir. 3/11/08), 982 So.2d 179, the defendant was convicted of stalking after three encounters with the victim, which occurred months apart. In the first encounter, the victim and the defendant’s own sister were jogging in a park when the defendant began yelling obscenities at them, telling them they were dead if they came back to the park. The second time he encountered the victim was in a courthouse where she was a court reporter and he was filing a disability claim. He told her he would “take care of her later.” Id. at 181. The third time, the victim was visiting the defendant’s sister when another friend asked for a ride to work. At the time, the victim noticed the defendant sitting in his truck across the street. After she dropped her friend off at work, the defendant pulled his vehicle behind her vehicle so that she could not back out and he began yelling something at her which she could not understand. On appeal, the defendant argued that the state failed to prove that he intentionally followed or harassed her.

The fifth circuit took issue with the defendants claim, stating that:

These three incidents clearly demonstrate that defendant harassed the victim by engaging in a series of acts over a period of time that evidenced an intent to inflict a continuity of emotional distress upon her. Additionally, the evidence showed that the victim had reason to be afraid of defendant, as he had previously been convicted of manslaughter.
|12Although defendant and his witnesses denied that any of the incidents occurred, the trial judge found the State’s witnesses to be more credible. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; therefore, the credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.
Defendant argues that there is no evidence that he followed the victim. We find no merit in defendants contention for two reasons. First, the evidence shows that defendant followed Gregory in 2004 when she drove to the Canal Bank Inn to drop someone off. Second, and more importantly, the stalking statute requires that the victim be either followed or harassed. (Emphasis added). La. R.S. 14:40.2 A. Here, the evidence showed that defendant harassed the victim on three occasions and followed the victim at least once in an eighteen-month time period.

Id. at 184.

The fifth circuit further noted that “the record reflects that the defendant verbally and behaviorally communicated threats of bodily injury and death to the victim,” and affirmed the conviction. Id.

The evidence submitted to the trial court showed that Ms. Saucier had reason to be afraid of Defendant, considering that there were four orders of protection issued against Defendant since 2000, and that Defendant pled guilty to two counts of stalking a month prior to the current incident and to violations of prior orders of protection. The State also dismissed one other count of stalking and a count of criminal damage to victims property in exchange for the guilty plea. In State v. Jacks, 07-805 (La.App. 1 Cir. 11/2/07), 978 So.2d 922, writ denied, 08-845 (La.9/19/08), 992 So.2d 951, the first circuit affirmed a conviction for stalking, second offense. While the issue argued in Jacks was whether the state was using conduct that was the subject of a previous conviction to satisfy the elements of the present charge — a double jeopardy violation, the first circuit discussed the “repeated following or harassing” element of the offense of stalking:

| ^Defendant asserts that the State cannot use his prior conduct that was the subject of his 2003 guilty plea to support the “repeated” element of the present stalking charge because such would be a violation of the Double Jeopardy Clause. Defendant argues that there was no repeated act because the July 17, 2006 incident was a single incident and because his prior acts of stalking were the subject of his 2003 plea bargain, they cannot be considered relative to the current charge, under principles of double jeopardy.
In State v. Rico, 99-158, p. 5 (La.App. 3 Cir. 6/2/99), 741 So.2d 774, 777, writ denied, 99-1883 (La.12/10/99), 751 So.2d 244, the Third Circuit defined “repeated” as used in LSA-R.S. 14:40.2(A) as meaning “renewed or recurring]/]” The Rico court determined that, in that instance, defendant’s actions were not sufficient to satisfy the elements of stalking. Rico was charged with a “repeated following” of the victim as opposed to a “repeated harassing” of the victim and in that case, Rico had no prior history with the victim. Rico had encountered the victim only that once and had followed her on only that day. The court determined that because “repeated”, as defined by Webster’s Dictionary, is “renewed or recurring again and again,” and Rico had encountered the victim only once, the facts did not support a stalking offense. That is not the case here. Jacks has previously been convicted of stalking the Rogillio family and “renewed” that harassment on July 17, 2006.
As stated by the Georgia Court cf. [sic] Appeals in Daker v. State, 248 Ga. App. 657, 660, 548 S.E.2d 354, 356 (Ga.App.2001), cert. denied, 535 U.S. 1085, 122 S.Ct. 1977, 152 L.Ed.2d 1035 (2002), “stalking is, by its very nature, a cumulative crime.” The Louisiana Legislatures inclusion of specified types of “repeated” behavior to define the offense of stalking is consistent with the idea that stalking is a cumulative crime.
Clearly, the Legislature sought to criminalize certain behaviors because of the impact on a victim of not only causing fear or emotional distress directly arising from the complained of acts, but the idea that if unpunished, this behavior would be likely to escalate.
We conclude that the facts in this case do not present a double jeopardy issue. By definition, stalking cannot consist of a single incident. The behavior must, by definition, be recurring or renewed. However, once a pattern of behavior has been established, any subsequent act will be of a recurring or renewed nature; whether the prior acts were prosecuted or not is of no moment. It is only the subsequent act, if prosecuted, for which a defendant is placed in jeopardy.
The Fifth Amendment provides that “[no person shall be] subject for the same offence to be twice put in jeopardy of life or limb.” Each [,^successive act of harassment creates a new offense for which a perpetrator could not possibly be in jeopardy until the new offense has been committed. One “new” act is enough; the statute does not require two or more new acts in order to prosecute a new offense. If the new offense is prosecuted, new facts and new evidence will necessarily be required in order to convict. Thus the prohibition against “double jeopardy” is not applicable.

Id. at 925-27.

In the current case, testimony established that on the morning of May 5, 2009, Ms. Saucier had been in city court regarding an allegation of simple battery Defendant made against her, which was dismissed. Accordingly, it appears that he then followed her from the courthouse to her friends apartment. While there was no testimony that on May 5, 2009, Defendant made verbal threats or that he was “repeatedly following” her, we find the evidence submitted at trial showed Defendant renewed his harassment with the specific intent to inflict a continuity of emotional distress upon the victim. Accordingly, considering all of the prior stalking convictions and violated orders of protection, we find Defendants behavior exhibited a pattern of harassment sufficient to satisfy the elements of the offense of stalking.

ASSIGNMENT OF ERROR NUMBER 2:

Defendant argues that the trial court erred when it used facts not in evidence to reach the guilty verdict. He notes that while giving-his reasons for the judgment, the trial judge stated “ ‘and because I have children I’m familiar with the place. For the record, it is in Emerald Square Shopping Center.’ ” The trial court then described the location of the TCBY and noted that the windows were tinted because of the bright sunlight.

In brief, Defendant states:

It is important in this case because it goes to several contested questions presented. There was a question concerning whether the windows of the store were or were not tinted. There was a question of whether the 11Bwitnesses remembered if the store windows were tinted. There were questions concerning what was and was not visible out of the store windows.

We note that during Ms. Saucier’s testimony, she described the location of the TCBY, stating that it was in the Emerald Square Shopping Center. She testified as to which streets the shop was adjacent to and described the windows in the shop. Ms. Saucier did not mention that the windows of the shop were tinted. Ms. Lafitte remarked, when asked, that she did not recall whether the shop’s window was tinted. Ms. Gaspard, the shops employee, testified that the windows were tinted, “but you can still see through them. They’re tinted on the inside, so we don’t get hit with direct sunlight.” She described the windows in the shop and further testified that one could see the street clearly, particularly if there were not many cars in the parking lot.

Although the trial judge prefaced his statement with the fact that he had children and was familiar with the shop, he did not recite facts not placed into evidence. The location of the TCBY, the area, windows, parking lot, and whether the windows were tinted were all entered into evidence through testimony. We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER 3:

In this assignment Defendant further argues the trial court premised its verdict on “a leap of logic unsupported by evidence that the defendant was the only person who would know Ms. Saucier and Ms. Lafitte.” During reasons given for judgment, the trial judge noted:

The first question I had is, uh, obviously, there was someone that passed by the apartment of Ms. Lafitte that day on the motorcycle. There was somebody that was at the flower shop at the corner of, I believe its Dorchester and Jackson Street at the flower shop. There was somebody that passed by TCBY three times on the same motorcycle, and there was somebody, there was obviously someone on a motorcycle that stopped and looked at them at TCBY. Who would be doing that? Who knows Ms. Saucier |16and Ms. Lafitte? The only person that I can think of that would know those people would be Mr. Saucier.

Defendant argues in brief:

However, this is a conclusion or “fact” that was not supported by the evidence presented at trial. Nowhere during the testimony by Candace Saucier (See generally Record 112, at Page 145-Page 178) or in the testimony of Jacqueline Laffitte [sic] (see generally Record 112, at Page 179-Page 189) were there any questions directed to who both witnesses might know or who might know both witnesses. In a city the size of Alexandria and a state the size of Louisiana (or for that matter in the entire United States or world), there are probably many people who the two know in common and who know both of them. Confining our attentions strictly to Alexandria, there are likely dozens of people might know both witnesses.

At trial, Defendant argued it was not him on the bike on May 5, 2009. Two witnesses testified that Defendant seldom rode the neon yellow motorcycle. It was asserted that either Rodney Wells, his son Justin, or Mark Hennigan, was riding the bike that day. While Ms. Saucier was never asked if she knew these men, Ms. Lafitte was asked and she denied knowing any of them. We believe it is obvious Defendants assertion that it was someone else on the neon motorcycle that day was what the trial court was referring to when he made the above statement. We find based on the testimony at trial it was reasonable for the trial judge to have concluded (in a somewhat inarticulate manner) that of the above three named men, only Defendant would have known where Ms. Lafitte lived, so as to find Ms. Saucier after he saw her at city court that morning.

We find this assignment of error has no relevance to the issue of Defendants guilt or innocence of the offense of stalking, and is wholly without merit.

ASSIGNMENTS OF ERROR NUMBER 4 AND 5:

For his final two assignments of error, Defendant asserts that the trial court made improper statements at the sentencing hearing and at the hearing on his “Motion to 117Reconsider Sentence.” He further argues the sentence of ten years imprisonment without the benefit of parole, probation, or suspension of sentence is constitutionally excessive under the circumstances of his case.

Defendant was convicted of stalking, second offense. Louisiana Revised Statutes 14:40.2(B)(4) provides that for a second conviction of stalking within seven years of a first conviction, the offender shall be imprisoned without the benefit of parole, probation, or suspension of sentence, for not less than five years and not more than twenty years, and may be fined not more than five thousand dollars, or both. Defendant was sentenced to ten years, one half of the possible sentence he could have received.

At the sentencing hearing, the trial court stated for the record:

I have looked at the aggravating and mitigating factors under Article 894.1. I do not see any aggravating factors that are present. I do not see any mitigated factors that are present either. But, I’m going to find that during — that there is an undue risk during a period of suspended sentence or probation, that you will commit another crime, that you’re not entitled to probation, because of this statute. I believe that you’re in need of correctional treatment, a custodial environment that can be provided most effectively by your commitment to an institution; and I believe that the lessor [sic] sentence would deprecate the seriousness of the crime.
I have a printout from the records of the 9th Judicial District Court. This is a printout that our Clerk’s Office has of every time you’ve been arrested in Rap-ides Parish since 1983, and it shows 30 arrest since 1983, and it has a list of—
There has been so many arrest, its been kind of hard for me to go through these arrest. And, some of these are APD’s, which means they were handled in City Court. But, your first conviction was in 1992, for Simple Kidnaping; at that time, you were charged with 2 counts of Forcible Rape, One Count of Aggravated Sexual Battery, One Court, of Aggravated Kidnaping, and Simple Kidnaping, and Simple Kidnaping. You plead guilty to that, and you got five years probation, and you were revoked on your probation in July of '93, and had to serve 42 months with the Department of Corrections.
1 isSinee the — I’m just not going to read all — well, I guess I ought to. You’ve been arrested for Simple Burglary, Possession of Stolen Goods, Simple Burglary, Criminal Damage, Forcible Rape, Aggravated Kidnaping, Disturbing the Peace Fighting, Criminal Damage, Criminal Mischief, Criminal Mischief, Stalking, Criminal Mischief, Aggravated Burglary, Simple Assault, Criminal Damage, Malicious Damage, there was a Simple Battery, Malicious Damage, Malicious Damage, Telephone Harassment, Sixty days in Alexandria City Court for a Simple Battery, Entry into an inhabited dwelling, Aggravated Assault, Simple Battery, Criminal Damage, Simple Assault, Simple Battery. Then, you were convicted of a violation of a protective order in April 1st of '09, when you plead guilty to that one, they dismissed another one, they dismissed a Stalking charge against you. Then, you also plead guilty on that date for Stalking, and they dismissed the Criminal Damage, and the Violation of a Protection Order against you. You also plead guilty to another stalking on that date. So, you plead guilty to two Stalking that date and all the other charges were dismissed against you. That was April 1st of '09.
May 4th of '09, you were charged with Violation of a Protective Order again, one month later. And, then, seven days later — eight days later, you were charged with this offense, Stalking, 2nd Offense, in Violation of a Protective Order.
I have gone back and pulled some files of yours; Booking Number 7, Simple Kidnaping, in that case, there was a lady by the name of Natalie Branton (phonetic), that was your wife, I believe. She wouldn’t do whatever you told her to do, so you went over to her place of employment, grabbed her by the hair, dragged her out of the place of employment, and took her out into the country and raped her on two different occasions. Her brother is a State Police Officer, I don’t know why in the world he didn’t shoot you for doing that.

In brief, Defendant objects to the above statement regarding the brother who did not shoot him, stating that the matter did not concern the current victim and should not have been considered. He also objects in brief to the fact the trial court took into consideration during sentencing a tape recording the trial court reviewed which pertained to a 2008 stalking charge.

And, the most important thing that we have in any of this, I have been surprised about, sir, — Mr. Saucier, I very rarely get surprised with what I see. I’ve done this fourteen years, and you have surprised me. This statement that you made without knowing, November 18, 2008 is in the file, with Booking 11flNumber 27, the Stalking charge. Ms. Saucier had a tape recorder in her purse and tape recorded a conversation with you at 10 a.m., at a Subway. And, I want to tell you, sir, that I was absolutely floored by what I read about what you said. I’m going to give it to the Turning Point here to help train people to learn about how people like you think, and I’m going to send it to Baton Rouge also, because I think it’s a very instructive, and a great educational tool for people to understand how you think. I’ve had domestic violence training, and domestic violence training — but I tell you what, you’ve taught me a lot about how people like you think in that one statement, so — Basically, what we have is someone who uses power to control people, and you have your rules, and we have our rules, and your rules are more important, sir.

Defendant argues the current sentence of ten years is excessive “inasmuch as the trial court based its original sentence upon that tape because it may or may not have been clear to the trial court at the time of the initial sentencing that the tape was of a conversation connected with a conviction for which the defendant had previously been punished[.]”

In State v. Brandenburg, 06-1158, p. 28 (La.App. 3 Cir. 2/7/07), 949 So.2d 625, 644, writs denied, 07-538 (La.10/26/07), 966 So.2d 571, and 07-614 (La.10/26/07), 966 So.2d 573, this court noted:

The trial court has wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed constitutionally excessive absent a manifest abuse of discretion. State v. Evans, 97-504 (La.App. 3 Cir. 10/29/97); 702 So.2d 1148, writ denied, 97-2979 (La.4/3/98); 717 So.2d 231. This court, in State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99); 755 So.2d 297, 311, noted:
The relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). To constitute an excessive sentence, this court must find the penalty imposed is so grossly disproportionate to the severity of the crime as to
shock our sense of justice or that the sentence makes no measurable | ¡^contribution to acceptable penal goals; and, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Pyke, 95-919 (La-App. 3 Cir. 3/6/96); 670 So.2d 713.
State v. Boudreaux, 00-1467, p. 12 (La.App. 3 Cir. 4/4/01), 782 So.2d 1194, 1201, writ denied, 01-1369 (La.3/28/02), 812 So.2d 645 (quoting State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 311).

Furthermore:

In selecting a proper sentence, a trial judge is not limited to considering only a defendants prior convictions but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied, 2006-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993). Moreover, a trial judge may properly consider a defendant’s attitude and criminal propensities when determining the appropriate sentence. State v. Jackson, supra. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of actual proof the defendant committed the other offenses. State v. Jones, 31,569 (La.App.2d Cir.12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40.

State v. Newton, 43,079, pp. 3-4 (La.App. 2 Cir. 3/19/08), 978 So.2d 1196, 1199.

Finally, when an appellate court reviews a sentence for excessiveness, the court may consider several factors, including:

[T]he nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position 121 to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted).

In the current case, we cannot say that the trial court abused its discretion when it sentenced Defendant to ten years imprisonment for a second conviction of stalking. It appears from the record that Defendant has subjected the victim to years of abuse and threats of violence. In Jacks, 978 So.2d 922, where the defendant was convicted of stalking, second offense, he was sentenced to the maximum prison term. While in Jacks, the prison terms at the time of the offense were from six months to three years, the following year, in 2007, the penalty for a second offense stalking was amended to provide for a minimum of five years and a maximum of twenty years imprisonment. 2007 La. Acts, No. 62, 1. Obviously, the Louisiana Legislators believed the offense was serious enough to increase the penalty significantly for stalking, second offense. Furthermore, considering Defendants lengthy arrest and conviction record of violent crimes against persons, we find the trial court did not abuse its considerable discretion when it sentenced Defendant.

There is no merit to these assignments of error.

For the reasons as stated above the Defendants conviction and sentence are affirmed.

AFFIRMED.