author: GERBER, J.

text:
    Fred Donnell AIKENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1249.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals the circuit court’s order denying his motion to suppress, which led to his no contest plea for being a felon in possession of ammunition. He argues that the circuit court erred in finding that the “community caretaking exception” excused the police’s warrantless entry into his bedroom where they found the ammunition. We agree with the defendant and reverse.

The circuit court’s order included the following factual findings. Two detectives arrested the defendant at his house on an active warrant. His minor son was there at the time. The defendant agreed that while another officer took him to jail, the detectives could wait in his living room until his sister came to take custody of his son. When the sister arrived, she did not have keys to lock the house. The detectives were concerned about leaving the house unlocked. One detective said, “Let’s look around and see if we can find keys.” The detectives then searched for the keys along with the defendant’s sister. The detective who suggested searching for the keys entered the open door of the defendant’s bedroom. He found the keys on top of a dresser. Next to the keys was one round of ammunition. The detective testified that he was not able to see the items on the dresser without entering the bedroom.

Based on those factual findings, the circuit court denied the motion to suppress. The court reasoned:

Under the “community caretaking exception” to the warrant requirement, the detectives properly entered into the bedroom. The detectives had a valid concern that the house could be broken into if they left the unattended house unlocked. Therefore, applying an overall standard of reasonableness, this court finds that the detectives acted properly and within their rights when finding the ammunition.

After the court’s denial of his motion to suppress, the defendant pled no contest to being a felon in possession of ammunition. The court signed the plea form acknowledging the defendant’s reservation of his right to appeal the dispositive motion to suppress. During the plea colloquy, the court also acknowledged the defendant’s reservation of his right to appeal the dis-positive motion to suppress. This appeal followed.

As an initial matter, the state argues that the defendant did not preserve the suppression issue for appeal. We disagree. “Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) permits a defendant to appeal from a guilty or nolo contendere plea when the defendant ‘expressly reserve^] the right to appeal a prior disposi-tive order of the lower tribunal, identifying with particularity the point of law being reserved.’ ” Diaz v. State, 34 So.3d 797, 801 (Fla. 4th DCA 2010). Moreover, “where a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive in the case.” Id. (citation and internal quotations omitted).

Turning to the merits, the defendant argues that the circuit court erred in finding that the “community caretaking exception” excused the detective’s warrant-less entry into the bedroom where he found the ammunition. Our review is de novo. See Peraza v. State, 69 So.3d 338, 340 (Fla. 4th DCA 2011) (on review of a trial court’s decision on a motion to suppress, “An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence. However, a de novo standard applies to questions of law.”) (citation and internal quotations omitted).

We agree with the defendant’s argument. “Searches undertaken by a law enforcement officer in fulfilling his or her community caretaking functions focus on ‘concern for the safety of the general public.’ ” Ortiz v. State, 24 So.3d 596, 600 (Fla. 5th DCA 2009) (quoting Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)). Thus, a warrantless search may be justified by exigent circumstances, which are “those characterized by ‘grave emergency,’ im-perativeness for safety, and compelling need for action, as judged by the totality of the circumstances.” Reed v. State, 944 So.2d 1054, 1058 (Fla. 4th DCA 2006) (citing Riggs v. State, 918 So.2d 274, 278-79 (Fla.2005)). However, “ ‘an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists.’ ” Reed, 944 So.2d at 1058 (quoting Riggs, 918 So.2d at 279) (other citation omitted).

Here, once the defendant’s sister arrived, no exigency existed which justified the detective’s warrantless entry into the defendant’s bedroom. The sister was capable of entering the bedroom to search for the keys. Even if the detectives wanted to assist the sister in finding the keys, they should have limited their search to the visible area of the house in which the defendant permitted them to enter, and directed the sister to search the non-visible areas of the house, including the bedroom.

The case with the closest facts supports our conclusion. In United States v. McGough, 412 F.3d 1232 (11th Cir.2005), the defendant locked his five-year-old daughter in his apartment and left temporarily. The daughter called 911. When the police arrived at the apartment, they saw the daughter locked inside. The defendant returned and unlocked the door. The police then arrested the defendant for reckless conduct. The police called the daughter’s aunt, who said that she would come over. While waiting for the aunt to arrive, the police asked the defendant for permission to enter his apartment. He refused. The police then noticed that the daughter was not wearing shoes. The police asked her to go inside to get shoes, but she was too scared. Either before or at the time when the aunt arrived, the police took the daughter into a back bedroom to get shoes. In that room, the officers saw a bag of marijuana and a firearm sitting on top of a bar. The officers left the apartment to obtain a search warrant. After obtaining the warrant and re-entering the apartment, the officers discovered large amounts of marijuana, various firearms, and large amounts of cash. The police charged the defendant with being a felon in possession of a firearm, possession of marijuana, and using and carrying a firearm during a drug trafficking crime. The defendant filed a motion to suppress, arguing that the officers had no legal authority to enter his apartment. The trial court denied the motion.

On appeal, the defendant contended there was no urgent need for the police to enter his apartment to get his daughter’s shoes because the aunt could have done so when she arrived. The government argued that the police entered the apartment while acting in their community caretaking function. The appellate court concluded that the facts did not justify applying the community caretaking exception:

[The police] had the situation under control before they entered [the defendant’s] apartment. [The defendant] was under arrest and in custody in the police cruiser, and [the daughter] was safely outside. There was no immediate threat ... that necessitated the officers’ war-rantless entry into [the defendant’s] apartment. Nor were there any exigent circumstances ... that would have justified the officers’ decision to enter [the defendant’s] home.
In this case, the exigencies of the situation — -[the daughter’s] need for her shoes — are not compelling enough to find that the officers’ warrantless entry into [the defendant’s] apartment was objectively reasonable. Were we to apply the community caretaking exception to the Fourth Amendment in this case, we would undermine the Amendment’s most fundamental premise: searches inside the home, without a warrant, are presumptively unreasonable.

McGough, 412 F.3d at 1239 (citing Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).

As in McGough, the facts here do not justify applying the community caretaking exception. The exigencies of the situation — finding keys to lock the defendant’s house — are not compelling enough to find that the detective’s warrantless entry into the bedroom was objectively reasonable. The detectives simply could have directed the defendant’s sister to enter the bedroom to search for the keys. The detectives also could have requested the officer transporting the defendant to ask him where the keys were located and then relayed that information to his sister. The detective did not have to enter the defendant’s bedroom.

The eases upon which the state primarily relies, Castella v. State, 959 So.2d 1285 (Fla. 4th DCA 2007), and Cobb v. State, 378 So.2d 82 (Fla. 3d DCA 1980), are distinguishable. See Castella, 959 So.2d at 1292 (“[U]nder the community caretaking doctrine, the deputies were justified in stopping [the defendant’s] boat in order to obtain any information they could about the accident, its location, and its aftermath in order both to rescue the injured and to protect the general public from dangers resulting from the damaged vessel, such as the potential for explosion, debris, and impediment to travel on the [I]ntracoastal.”); Cobb, 378 So.2d at 83 (“It is undisputed ... that the officer opened the [car] door, not in order to search the car or even to look into it, but rather only in the process of securing the vehicle against theft, vandals and the elements during the time that it was to be left unattended on the public streets while [the defendant] was in jail”; no mention of another person who could have secured the vehicle on the defendant’s behalf).

Based on the foregoing, the circuit court erred by denying the defendant’s motion to suppress. We reverse and remand with directions for the trial court to vacate the defendant’s conviction and sentence, grant the defendant’s motion to suppress, and permit the defendant to withdraw his plea.

Reversed and remanded.

TAYLOR and LEVINE, JJ., concur.


source: Caselaw Access Project

author: LEVINE, J.

license: Public Domain

text:
    M.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-532.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   LEVINE, J.

The issue presented is whether law enforcement officers had reasonable suspicion to stop and frisk appellant after the report of an armed robbery. We find, based on the specific facts of this case, that the officers lacked reasonable suspicion to stop and frisk appellant. Accordingly, we reverse the trial court’s denial of appellant’s motion to suppress.

Sergeant Anton of the Davie Police Department was dispatched to an area in reference to an armed robbery. The sergeant later described this area as a “high crime area” known for “robberies, burglaries and narcotics.” The only information he had was transmitted by a BOLO stating that “two white males had just robbed the victim at gunpoint and fled the area on foot.” The sergeant never spoke with the alleged robbery victim, nor was he ever apprised of any information from the alleged victim. At about 12:30 a.m., the sergeant encountered appellant and another individual about three blocks from the area of the alleged robbery. Appellant and the other individual were walking away from the area of the alleged robbery at that time. Less than three minutes elapsed from the time of the dispatch regarding the alleged robbery to the time the sergeant contacted appellant and the other individual.

The sergeant detained the two individuals, “not knowing if they were involved in a crime.” The sergeant told appellant and the other individual to put their hands on the hood of his car. At the later suppression hearing, the sergeant testified that he “had no clue in knowing if these were the guys that were involved in this or if we still had people out on the loose.” The sergeant did not observe any bulges in appellant’s clothing, and on cross-examination, he acknowledged there were other people outside on the street when he stopped appellant and the other person. Another officer who came to the scene patted down appellant. The officer felt a bulge in appellant’s right pocket. The officer could not say whether the bulge was a weapon. The officer asked appellant if he could take out the bulge from appellant’s pocket, to which appellant responded, “Yes.” The officer then discovered a bag of marijuana.

Appellant filed a motion to suppress that was denied by the trial court. Appellant and the state agreed that the motion to suppress was dispositive, and appellant entered a plea of no contest, while reserving his right to appeal. This appeal ensues.

In evaluating a trial court’s ruling on a motion to suppress, this court’s “review of the trial court’s application of the law to the historical facts is de novo.” Rigterink v. State, 66 So.3d 866, 884 (Fla.2011). This court should “interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to” sustaining the ruling of the trial court. Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009) (citation omitted).

The state claims that the officers had sufficient evidence demonstrating reasonable suspicion and permitting the officers to detain appellant. At the level of “police-citizen encounters involving] an investigatory stop ... a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Popple v. State, 626 So.2d 185, 186 (Fla.1993). “[A]n investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Id.

In this case, the stop of appellant rested entirely on the description from the BOLO. As this court has explained:

In determining the legality of a stop as a consequence of a BOLO, this court has looked to factors such as the length of time and distance from the offense, specificity of the description of the alleged perpetrator(s), the source of the BOLO information, the time of day, absence of other persons in the vicinity of the sighting, suspicious conduct, and any other activity consistent with guilt.

Jean v. State, 987 So.2d 196, 198 (Fla. 4th DCA 2008).

In the present case, we find that the BOLO lacked sufficient specificity to provide the sergeant with reasonable suspicion justifying the stop of appellant. “[A] vague description simply would not justify a law enforcement officer in stopping every individual who ... might possibly meet that description.” State v. Hetland, 366 So.2d 831, 839 (Fla. 2d DCA 1979), approved, 387 So.2d 963 (Fla.1980). The BOLO informed the officers to look for two white males fleeing the scene on foot. It lacked any other descriptive information as to the men’s height, weight, age, or clothing, and did not indicate a speed or direction of travel. Further, the sergeant did not observe appellant engaging in any suspicious conduct or behavior consistent with participation in a recent armed robbery. See Jean, 987 So.2d at 198 (“Despite the fact that Jean was found in close proximity to the scene of the crime, there is no evidence that he or his companions were acting suspiciously or attempting to flee.”). Indeed, the sergeant testified that he “had no clue” whether appellant was involved in a crime. Lastly, appellant and the other individual were not the only people “in the vicinity of the sighting” that night. Id.

We have found reasonable suspicion lacking where stops were based on BOLOs even more specific than the one relied on by the officers in this case. In Pantin v. State, 872 So.2d 1000, 1001, 1003 (Fla. 4th DCA 2004), this court determined that a BOLO for a “stolen late-model two-door Mitsubishi with one occupant” provided only a “bare bones description” and was insufficient. See also Sapp v. State, 763 So.2d 1257, 1258 (Fla. 4th DCA 2000) (BOLO for “newer white, four-door vehicle containing at least two black males” near an address was insufficient); L.T.S. v. State, 391 So.2d 695, 695, 696 (Fla. 1st DCA 1980) (BOLO for “at least two white males with curly hair” who had just robbed a store found to be “lacking in specificity”). In this particular case, the limited description in the BOLO “could have fit many men,” and we find that it could not have provided the sergeant with the reasonable suspicion necessary to justify stopping appellant. Taylor v. State, 695 So.2d 503, 505 (Fla. 2d DCA 1997).

We therefore reverse the trial court’s denial of appellant’s dispositive motion to suppress with directions to discharge appellant.

Reversed and remanded.

TAYLOR and GERBER, JJ., concur.


author: PER CURIAM.

text:
    Phyllis WALKER, Appellant, v. Daniel A. WALKER, Appellee.
    No. 4D10-5158.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Brion Blackwelder, Children and Families Law Clinic, Nova Southeastern University Law Center, Davie, for appellant.
    Melody Ridgley Fortunato of Fortunato & Associates, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Phyllis and Daniel Walker were divorced on July 15, 2003. Incorporating the parties’ marital settlement agreement, the final judgment of dissolution provided that Daniel was to pay Phyllis rehabilitative alimony for 10 years. The judgment reserved jurisdiction to “modify and enforce” the judgment.

On August 27, 2008, Phyllis filed a petition for modification of alimony seeking to convert the rehabilitative alimony to permanent alimony and to increase the amount of the award. The summons on the petition was served on Daniel. He answered and later moved to dismiss the petition for lack of subject matter jurisdiction. The circuit court granted the motion, relying on Stickney v. Stickney, 377 So.2d 187 (Fla. 1st DCA 1979).

Chapter 61 vests a circuit court with continuing jurisdiction to enforce and modify an alimony award. See § 61.14(l)(a), Fla. Stat. (2010); see also Wiele v. Kadzis, 915 So.2d 777, 777 (Fla. 1st DCA 2005). Section 61.14(l)(a), which allows a court to “modify an order of support, maintenance or alimony,” empowers a court to change the nature of an award and extend the period for payment. See Pujals v. Pujals, 414 So.2d 228, 229 n. 4 (Fla. 3d DCA 1982); O’Neal v. O’Neal, 410 So.2d 1369, 1371 (Fla. 5th DCA 1982). Circuit courts have the subject matter jurisdiction to consider timely petitions for such modification, whether or not the court has expressly reserved jurisdiction in a final judgment. See Pujals, 414 So.2d at 229.

Due process requires that the party against whom relief is sought have “reasonable notice which affords an opportunity to be heard.” Kosch v. Kosch, 113 So.2d 547, 550 (Fla.1959). Stickney, upon which the trial court relied, was a case involving personal jurisdiction, not subject matter jurisdiction. There, the final judgment awarded rehabilitative alimony. Stickney, 377 So.2d at 188. The former wife served the former husband with a petition for modification by mail. Id. Because the final judgment did not “reserve or retain jurisdiction to award permanent alimony in the future,” the first district held that the former wife should have proceeded under a rule of procedure “which requires new service of process.” Id. The holding of Stickney was that the court lacked personal jurisdiction over the former husband, not that it lacked subject matter jurisdiction over the petition for modification. In this case, personal jurisdiction was not at issue; the husband was personally served with the petition.

The circuit court had the personal and subject matter jurisdiction to rule on the petition for modification. We reverse the order of dismissal and remand to the circuit court to consider the petition on the merits.

GROSS, CIKLIN and LEVINE, JJ, concur.


text:
    Kesner TOULOUTE, Appellant, v. CITY OF FORT LAUDERDALE, Appellee.
    No. 4D10-755.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Cheryl Linton Robinson of Cazeau, Linton Barnes, LLC., North Miami Beach, for appellant.
    Harry A. Stewart, Ginger E. Wald and DWayne M. Spence of the City Attorney’s Office, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant appeals the denial of his motion to vacate the order dismissing his case after he failed to appear at a status conference of which he had no notice. Rule 1.540(b)(4) provides that the court may relieve a party from a void judgment. “A judgment is void if, in the proceedings leading up to the judgment, there is ‘[a] violation of the due process guarantee of notice and an opportunity to be heard.’ ” Shiver v. Wharton, 9 So.3d 687, 690 (Fla. 4th DCA 2009) (quoting Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006)). The record shows that the notice of the status conference was mailed to appellant at the wrong address. Because appellant failed to receive notice of the status conference, he was denied due process and the order of dismissal must be vacated as void. See Watson v. Watson, 583 So.2d 410 (Fla. 4th DCA 1991) (reversing the denial of a motion to set aside a final judgment where the face of the order showed that the trial court did not mail notice to appellant’s correct address); Taylor v. Bowles, 570 So.2d 1093 (Fla. 4th DCA 1990) (finding abuse of discretion in denial of motion for relief from judgment where defendant had no notice of the trial date).

Reversed.

GROSS, CIKLIN and LEVINE, JJ., concur.


text:
    Iyamille Barbara AMADOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2260.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We grant appointed appellate counsel’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our review of the record reveals no issues of arguable merit. However, the record does not contain a written order revoking probation and specifying the conditions which appellant violated. Therefore, we affirm the revocation of probation and sentence, but remand for entry of a written order revoking probation and specifying the conditions which appellant violated. See Jones v. State, 12 So.3d 320, 321 (Fla. 4th DCA 2009); Smith v. State, 6 So.3d 116, 117 (Fla. 4th DCA 2009).

Affirmed and remanded.

POLEN, STEVENSON and TAYLOR, JJ., concur.


text:
    Luis D. VALDES, Appellant, v. Lori M. VALDES, Appellee.
    No. 4D11-2601.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.

      Steven W. Efftnan of Law Offices of Steven W. Effman, P.A., Plantation, for appellee.
   PER CURIAM.

Affirmed. See Jaffe v. Jaffe, 854 So.2d 285 (Fla. 4th DCA 2003); Mullins v. Mullins, 799 So.2d 450 (Fla. 4th DCA 2001).

GROSS, CIKLIN and LEVINE, JJ., concur.


text:
    Charles KNOX, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0656.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    Charles Knox, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Thomas E. KING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0642.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    Thomas E. King, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Jimmy BOWDEN, Petitioner, v. Larry CAMPBELL, Respondent.
    No. 1D12-0380.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.

      Jimmy Bowden, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003); see also Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Bennie E. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5386.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    Bennie E. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    John E. PORTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4867.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2012.
    John E. Porter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Scott BEARE, Appellant, v. ORANGE COUNTY CLERK OF COURT, Appellee.
    No. 5D10-3775.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.
    Matthews R. Bark and Joerg G. Jaeger, of Jaeger & Blankner, Orlando, for Appellant. .

      No Appearance for Appellee.
   PER CURIAM.

Scott Beare appeals a final order denying his motion to modify and correct sentence, arguing that the trial court erred by refusing to order the clerk of court to return a $50,000 cash bond posted by his father prior to the resolution of Beare’s underlying criminal charges. We affirm the trial court’s order, which correctly denied Beare’s motion based upon the plain language of section 903.286, Florida Statutes. That statute requires clerks of court to withhold from the return of a cash bond, funds sufficient to satisfy unpaid court fees, court costs and criminal penalties. In this case, the clerk properly withheld Beare’s cash bond to satisfy a mandatory $50,000 criminal fine. We also note that the form signed by Beare’s father upon posting the cash bond contained a notice that the bond would be subject to forfeiture or withholding, as required by section 903.286. Beare’s father initialed the following statement at the bottom of the “Cash Appearance Record” form that he signed:

I understand that Florida Law 903.286 requires that any cash bond funds posted by or on behalf of a defendant are subject to forfeiture and withholding by the Clerk of Court for the payment of court fees, court costs, and criminal penalties on behalf of the criminal defendant regardless of who posted the funds, [initials ].

AFFIRMED.

MONACO, LAWSON and COHEN, JJ., concur.


author: WOLF, J.

text:
    Joseph FRANTZIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2034.
    District Court of Appeal of Florida, First District.
    March 2, 2012.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges a final order of civil commitment under the Jimmy Ryce Act, sections 394.910-932, Florida Statutes (2007). Section 394.916(1) provides the court shall conduct a trial within 30 days after the determination of probable cause. Section 394.916(2) states the court may grant one continuance for “not more than 120 days.” Appellant argues the limit on continuances in subsection (2) is jurisdictional. He asserts that because he was not brought to trial within 150 days of the probable cause determination, the trial court lost subject matter jurisdiction over the proceedings. Therefore, he argues, he is entitled to a dismissal of the civil commitment action with prejudice.

In State v. Goode, 830 So.2d 817 (Fla.2002), the supreme court found the 30 day provision in subsection (1) was not jurisdictional. We find no reason to treat the 120 day provision in subsection (2) differently. Moreover, below appellant twice filed a waiver of his right to trial within 30 days of the probable cause determination, and much of the delay in the proceedings was attributable to him. We, therefore, find no merit in appellant’s contentions.

We also determine the other issues he raised are without merit. Therefore, we affirm.

AFFIRMED.

PADOVANO and MARSTILLER, JJ., concur.


author: PER CURIAM. THOMAS, J.,

text:
    Jonathan Franklin TOMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0353.
    District Court of Appeal of Florida, First District.
    March 5, 2012.
    T. Martin Knopes of Cadenhead, Campbell & Knopes, Crestview, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

VAN NORTWICK and ROBERTS, JJ., concur; THOMAS, J., concurs with written opinion.

THOMAS, J.,

Concurs with written opinion.

The petition for writ of habeas corpus is denied on the merits.

I concur in the denial of the Petition for Writ of Habeas Corpus, but write to note that under Section 907.041(4)(k), Fla. Stat., the legislature has stated that a defendant “shall be entitled to dissolution of the pretrial detention order whenever the court finds a subsequent event has eliminated the basis for detention.” (Emphasis added.) Here, the trial court declined to find that a subsequent event “eliminated the basis for detention.” Petitioner argues that his expert testimony regarding reasonable conditions of pre-trial release to protect the public should compel release. But under the statute, it is the trial court that must make this determination, and in light of the other evidence presented, I cannot hold as a matter of law that the trial court abused its discretion in its factual determinations. The trial court complied with the law and carefully considered the factors applicable here in detaining the Petitioner under the statutory scheme. See generally, State v. Blair, 39 So.3d 1190 (Fla.2010). Thus, I concur in the denial of the Petition for Writ of Habeas Corpus.


text:
    Khambrel L. HINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1061.
    District Court of Appeal of Florida, First District.
    March 5, 2012.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    Allen BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3782.
    District Court of Appeal of Florida, First District.
    March 5, 2012.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, 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:
    Wayne E. MYLES, Appellant, v. FLORIDA DEPARTMENT OF REVENUE o/b/o Natricia A. BATCHELOR, Appellee.
    No. 1D11-1647.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Wayne E. Myles, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Wayne E. Myles appeals the final administrative support order in child support proceedings under section 409.2563, Florida Statutes. The order is appealable pursuant to section 120.68, Florida Statutes.

The Department of Revenue concedes that the final order erroneously imputes income to Mr. Myles without adequate explanation. There is no finding that Myles is voluntarily unemployed, as that term is used in section 61.30(2)(b), Florida Statutes and there is no finding that either parent failed to file a financial affidavit or that there was a lack of sufficient reliable information concerning Mr. Myles’ actual earnings. § 409.2563(5)(a), Fla. Stat. Absent either of these statutory circumstances, the presumption that a parent’s earning capacity is equal to the federal minimum wage does not arise.

We find no error in the Administrative Law Judge’s findings of fact and consequent denial of credit to Mr. Myles for the two other children residing with him and his wife, under Speed v. Florida Dep’t of Revenue, 749 So.2d 510 (Fla. 2d DCA 1999). Likewise, we find no error in the Administrative Law Judge’s credit to Mr. Myles for the support payments actually made during the retroactive period.

In light of the Department’s concession of legal error, the Final Administrative Support Order is set aside in part and remanded for recalculation of the parents’ incomes and for entry of a Final Administrative Support Order which adequately describes the basis for the determination of the parents’ incomes and the corresponding retroactive and current child support amounts. The remainder of the Order is affirmed.

PADOVANO, LEWIS, and CLARK, JJ., concur.


text:
    John F. PULLINS, Appellant, v. Cynthia D. BRITTON and State of Florida, Department of Revenue, Appellees.
    No. 1D10-5064.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    John F. Pullins, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

The order on appeal addresses unauthorized and successive post-judgment motions and therefore is not appealable under Florida Rule of Appellate Procedure 9.130(a)(4), see Intercoastal Marina Towers, Inc. v. Suburban Bank, 506 So.2d 1177, 1178-79 (Fla. 4th DCA 1987). We therefore limit our review to the single paragraph of the order below. That paragraph stated appellant “is hereby prohibited from filing any further pleadings alleging that he was not properly served in this proceeding unless such pleading is certified by a member of the Florida Bar as being made in good faith.”

While a trial court has the authority to impose such a sanction where a litigant’s avalanche of filings has prevented the court from “devot[ing] its finite resources to the consideration of legitimate claims filed by others,” Lussy v. Fourth District Court of Appeal, 828 So.2d 1026, 1027 (Fla.2002), this record does not show whether appellant was provided the requisite notice and opportunity to be heard before imposition of the sanction. See Hendrixson v. Frye, 994 So.2d 1255, 1255 (Fla. 1st DCA 2008) (citing State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999) (recognizing that “denying a pro se litigant the opportunity to file future petitions is a serious sanction” and holding that “it is important for courts to first provide notice and an opportunity to respond” in order to protect the litigant’s right of access to the courts and provide appellate courts with “an enhanced ability to determine whether [any subsequent] denial of access is an appropriate sanction under the circumstances”)). Consequently, we remand this case with instructions that the trial court issue an order to show cause why the sanction should not be imposed and allow appellant a reasonable time to respond.

REVERSED and REMANDED for further proceedings.

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


author: PER curiam;.

text:
    Tery JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6805.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Diane Elizabeth See, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER curiam;.

Appellant seeks review of an order designating him a sexual predator. He contends that the trial court erred by not holding a hearing to determine whether his federal offenses qualify him for such designation. We agree and reverse.

The State filed a petition alleging that Appellant met the criteria for designation as a sexual predator based on his federal convictions. The petition was filed pursuant to section 775.21(5)(a)3., Florida Statutes (2010), which provides:

If the Department of Corrections, the department, or any other law enforcement agency obtains information which indicates that an offender who establishes or maintains a permanent, temporary, or transient residence in this state meets the sexual predator criteria described in paragraph (4)(a) or paragraph (4)(d) because the offender was civilly committed or committed a similar violation in another jurisdiction on or after October 1, 1993, the Department of Corrections, the department, or the law enforcement agency shall notify the state attorney of the county where the offender establishes or maintains a permanent, temporary, or transient residence of the offenders presence in the community. The state attorney shall file a petition with the criminal division of the circuit court for the purpose of holding a hearing to determine if the offenders criminal record or record of civil commitment from another jurisdiction meets the sexual predator criteria. If the court finds that the offender meets the sexual predator criteria because the offender has violated a similar laiv or similar laws in another jurisdiction, the court shall make a written finding that the offender is a sexual predator.

(emphasis added).

The trial court did not hold the hearing required by this statute. This was error. Cf. Bishop v. State, 42 So.3d 846, 847 n. 1 (Fla. 5th DCA 2010) (“A defendant is entitled to a hearing before a sexual predator designation can be imposed because the court must make factual findings as to the existence of the qualifying prior conviction.”).

This error was not harmless, as the State contends in its brief. The trial court’s order does not specify the offense found by the court to qualify Appellant for designation as a sexual predator; the order simply contains a list of the Florida statutes that could serve as the basis for a sexual predator designation, many of which have no relation to Appellant’s' offenses. Moreover, to the extent the sexual predator designation was implicitly based on the federal offenses referenced in the petition, the order does not include the requisite finding that the offenses are similar to a Florida offense listed in section 775.21(4)(a). It is the responsibility of the trial court, not this court, to make that determination in the first instance.

For these reasons, the order designating Appellant a sexual predator is reversed and this case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

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


text:
    Jimmy WARD and Dale Ward, Appellant, v. Myrtle WARD, et al., Appellees.
    No. 1D11-0024.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Bert Moore, Crestview, for Appellant.
    Daniel C. Perri and Larry H. Hipsh, III, of Law Office of Daniel C. Perri, Shalimar, for Appellees.
   PER CURIAM.

Appellants, Jimmy and Dale Ward, challenge an order of the trial court involuntarily dismissing their complaint, which alleged a cause of action for wrongful eviction and sought the imposition of a constructive and/or resulting trust. The trial court also granted Appellees’ counterclaim for ejectment. We reverse the trial court’s dismissal of Appellants’ cause of action for wrongful eviction, and we affirm all other issues raised on appeal.

Appellants’ claim of wrongful eviction was based on a suit for eviction filed by Appellees in 2006 in the county court. In their answer to the complaint, Appellants alleged that they had an equitable interest in the property. The county court granted the eviction and the circuit court affirmed the order of the county court. Pursuant to a petition for writ of certiorari, this Court found that the circuit court departed from the essential requirements of the law by affirming the county court’s decision. Ward v. Estate of Ward, 1 So.3d 238, 239 (Fla. 1st DCA 2008). This Court held that ejectment, not eviction, was the proper remedy due to Appellants’ allegation of an equitable interest in the land and that ejectment claims had to be raised in the circuit court. Id. Thus, this Court quashed the order affirming the eviction and remanded the case to the circuit court. Id.

In this case, the trial court dismissed Appellants’ claim for wrongful eviction based on its determination that Appellants failed to prove in the instant litigation a legal or equitable interest in the property. This was error. The mere fact that Appellants have now been lawfully ejected from the property is not a complete defense to their claim that they were wrongfully evicted pursuant to the earlier action filed in the county court. Walsh v. CAS, Inc., 633 So.2d 561, 562 (Fla. 4th DCA 1994); Farm Maid Inc. v. Giller, 474 So.2d 1278, 1278 (Fla. 3d DCA 1985). Thus, the trial court erred in dismissing the claim for wrongful eviction based on findings related to the current litigation. The court should have focused on the events surrounding the 2006 eviction. We, therefore, reverse the portion of the order involuntarily dismissing the claim for wrongful eviction. We affirm all other issues raised on appeal without further discussion.

AFFIRMED in part, REVERSED in part, and REMANDED.

DAVIS, CLARK, and ROWE, JJ„ concur.


text:
    Manuel DE LA CRUZ, Appellant, v. ABLE BODY TEMPORARY STAFFING and Broadspire Services, Inc., Appellees.
    No. 1D11-4114.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Jeffrey E. Appel of the Appel Law Group, Lakeland, for Appellant.
    Michael G. Rabinowitz of Banker, Lopez, Gassier, P.A., Tampa, for Appellees.
   PER CURIAM.

Claimant, Manuel de la Cruz, filed several petitions for benefits after injuring his right knee and left wrist in a workplace fall. Among other things, Claimant sought authorization for a total knee replacement and temporary partial disability (“TPD”) benefits related to the wrist injury that the Employer/Carrier had accepted as com-pensable. The Judge of Compensation Claims (“JCC”) determined that the workplace accident was not the major contributing cause of Claimant’s need for knee surgery, and therefore, denied all related claims. We affirm the denial of benefits without further discussion.

However, the JCC did not rule on the TPD claim although the claim was addressed at the hearing. Failure to rule on a fully tried issue is reversible error. See Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 682 (Fla. 1st DCA 1997). Accordingly, we AFFIRM the Final Compensation Order in part, REVERSE it in part, and REMAND to the JCC to rule on Claimant’s TPD claim related to his wrist injury.

PADOVANO, ROWE and MARSTILLER, JJ., concur.


text:
    Anson A. TAYLOR, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, o/b/o, Misty A. SMITH, Appellee.
    No. 1D11-6417.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Anson A. Taylor, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We treat the pro se notice of appeal in this case as invoking the court’s jurisdiction to review the Final Order of Paternity and Administrative Support and the Income Deduction Order entered in association therewith. In accordance with appel-lee’s concession of error, these orders are reversed, and the matter is remanded for further proceedings.

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    MASSEY SERVICES, INC. and Sedgwick Claims Management Services, Appellants, v. Jinger KNOX, Appellee.
    No. 1D11-6474.
    District Court of Appeal of Florida, First District.
    March 6, 2012.
    Ricki L. Whipple of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellants.
    Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

Upon review of Appellant’s timely response to this Court’s show cause order entered December 19, 2011, the Court dismisses this appeal for lack of jurisdiction. In the order on appeal, the Judge of Compensation Claims (JCC) awarded temporary partial disability benefits but reserved jurisdiction as to the amount of those benefits due. Accordingly, the order is not a final order because it does not dispose of all matters presented to the JCC for adjudication. See, e.g., Emro Mktg. v. Schwier, 670 So.2d 1141 (Fla. 1st DCA 1996); Bradley v. Hurricane Rest., 652 So.2d 443 (Fla. 1st DCA 1995). The order is also not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.180(b)(1)(A), (B), or (C).

DISMISSED.

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


author: STEVENSON, J.

text:
    Alfonso THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-963.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Michael C. Minardi of Michael Minardi, P.A., Stuart, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Defendant appeals the denial of his motion to suppress which preceded his convictions for possession with intent to sell, manufacture or deliver cocaine within 1000 feet of a park, community center or recreational facility and resisting an officer without violence. Because Defendant was subjected to a detention not supported by reasonable suspicion, we reverse the convictions.

At Defendant’s motion to suppress hearing, Detective George McLain of the Stuart Police Department testified that he received an email indicating that “suspicious activity” was occurring near a strip mall barber shop that was not yet open for business. The person providing the information was employed in a store in the strip mall, but wished to remain anonymous. The email reported that males, most with dreadlocks, were “congregating” at the barber shop; that people would walk to the front door, make a call and then enter the barber shop through the back door; and that this activity would occur at night and people would leave their cars running while they were in the barber shop. The detective had not previously received complaints regarding the strip mall.

McLain and his partner, Detective Orta-do, drove over to the strip mall around four o’clock in the afternoon and observed Defendant and ten to fifteen males standing near the barber shop. Some of the men had dreadlocks, including Defendant. The men watched the detectives each time they rode by in the police vehicle. When the detectives exited the vehicle, the men entered the barber shop. Ortado followed the men to the barber shop back door and McLain approached Defendant, who was sitting in a parked car with the windows down and doors closed. As McLain walked towards the car, Defendant looked into the center console and then looked up at the detective. McLain saw the console lid open and close, but could not see Defendant’s hands. When McLain reached Defendant and asked him what he had done, Defendant denied going into the console. McLain testified that he asked Defendant to exit the vehicle because he was concerned for officer safety and concerned that there was something “dangerous” in the console. Defendant did not seem to have a problem getting out of the car, but reached back into the console as he was getting out. Defendant turned his body as if to block McLain’s view so McLain moved and observed Defendant “cup” something in his hand and place it into his right pocket. When McLain asked Defendant what he had placed in his pocket, Defendant said “nothing.” Defendant appeared nervous and fidgety and was breathing rapidly. McLain did not observe anything that appeared to be a weapon on Defendant, but told Defendant that he was going to conduct a pat down. When he attempted to do so, Defendant swatted his hand away. Defendant was then arrested. During the subsequent search, crack cocaine was discovered on Defendant, as well as $2000 in cash.

A trial court’s factual findings on a motion to suppress are accorded a presumption of correctness; however, application of the law to the facts is reviewed de novo. See Rigterink v. State, 66 So.3d 866, 884 (Fla.2011). To conduct an investigatory stop, the officer must have reasonable suspicion that the person “ ‘has committed, is committing, or is about to commit a crime.’ ” M.M. v. State, 72 So.3d 328, 330 (Fla. 4th DCA 2011) (quoting Fuentes v. State, 24 So.3d 1231, 1234 (Fla. 4th DCA 2009)). Whether an officer has reasonable suspicion for a stop depends on the totality of the circumstances, interpreted in consideration of the officer’s knowledge and experience. See Ippolito v. State, 789 So.2d 428, 425 (Fla. 4th DCA 2001).

When Detective McLain asked Defendant to exit the car, a seizure occurred. See Miranda v. State, 816 So.2d 132, 135 (Fla. 4th DCA 2002) (holding that when defendant was ordered out of car, the consensual encounter was transformed into a seizure). However, the detective lacked reasonable suspicion to detain Defendant. The person providing the information in the email wished to remain anonymous, placing the tip very low on the reliability scale. See J.L. v. State, 727 So.2d 204, 206 (Fla.1998) (“Tips from known reliable informants, such as an identifiable citizen who observes criminal conduct and reports it, along with his own identity to the police, will almost invariably be found sufficient to justify police action.”). Further, the tip was vague and contained no allegations of criminal activity, but only “suspicious,” yet innocent, behavior. See Butts v. State, 644 So.2d 605, 606 (Fla. 1st DCA 1994) (tip failed to provide reasonable suspicion where it “ ‘offered nothing more than innocent details of identification that could have been provided by any pilgrim on the roadway1 ”) (quoting Robinson v. State, 556 So.2d 450, 452 (Fla. 1st DCA 1990)). Finally, Defendant’s conduct of reaching into the console, appearing “nervous,” and lying to the detective similarly did not provide reasonable suspicion for the detention. See Johnson v. State, 640 So.2d 226, 227 (Fla. 5th DCA 1994) (officer lacked reasonable suspicion based on defendant telling a lie where, in the late evening, defendant was standing at trunk of car trying to conceal something because lying “is not a crime”); see also Popple v. State, 626 So.2d 185, 186, 188 (Fla.1993) (officer lacked founded suspicion to request defendant to exit vehicle where defendant was near high crime area, sitting in parked car on side of road, appeared nervous, reached underneath his seat and began “flipping” about in the car). McLain never observed anything that appeared to be a weapon on Defendant and we reject the State’s contention that, under the totality of the circumstances, Defendant’s “baggy pants” gave the detective an additional reason to detain Defendant to determine if a weapon may have been concealed therein. Because Detective McLain lacked reasonable suspicion, and due to the lack of any intervening circumstances, the physical evidence discovered during the subsequent pat down should have been suppressed. See, e.g., Wells v. State, 975 So.2d 1235, 1238 (Fla. 4th DCA 2008) (“Under the ‘fruit of the poisonous tree’ doctrine, the exclusionary rule bars the admission at trial of physical evidence ... obtained directly or indirectly through the exploitation of the police illegality.”).

Lastly, since the detention was illegal, the detective was not engaged in the “lawful” execution of a legal duty so as to support the resisting without violence conviction. See § 843.02, Fla. Stat. (2008) (“Whoever shall resist ... any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree....”); Jay v. State, 731 So.2d 774, 775 (Fla. 4th DCA 1999) (“An essential element of resisting an officer without violence is that the arrest is lawful.”). Accordingly, we reverse the instant convictions for possession of cocaine with intent to sell (count I) and resisting arrest without violence (count II), and direct that on remand Defendant be discharged.

Reversed and remanded.

MAY, C.J., and GROSS, J., concur.


text:
    Ronald C. HAINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5018.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Ronald C. Haines, St. Petersburg, Pro Se.
    No appearance for appellee.
   PER CURIAM.

Ronald Haines appeals the trial court’s “Order Denying Defendant Haines’s Pro Se Motion to Issue Certificate of Costs.” We treat his appeal as a petition for writ of mandamus and grant the relief requested. Haines properly filed a motion for certification of costs under section 939.06, Florida Statutes. Certification of costs is a purely ministerial duty that does not require the trial court or clerk to exercise any discretion in deciding whether or not to certify the costs. See Clark v. State, 570 So.2d 408, 410 (Fla. 2d DCA 1990).

This case arises from Haines’s attempt to obtain a refund of the $20 booking fee and $2.00 per day subsistence fees deducted from Haines’s inmate account while he was confined in jail on charges filed in Palm Beach Circuit Court Case Numbers 07-15322 and 08-1276.

. Haines alleges that he was arrested on February 12, 2008, and that the State nolle prossed the charges in the above cases on February 12, 2009. Initially, Haines filed a petition for writ of mandamus in the circuit court, seeking to compel the sheriff to refund these fees. After the circuit court denied the petition as legally insufficient, Haines filed a petition for writ of mandamus in this court. We denied the petition, explaining by order: “Petitioner must follow the procedure set out in section 939.06, Florida Statutes, by filing a motion for certification of costs in the trial court for the cases at issue.”

Haines then filed a motion to issue certificate of costs in Case Numbers 07-15822 and 08-1276, claiming that a certificate of costs “must be issued by this clerk or judge” pursuant to section 939.06(1), Florida Statutes. On October 25, 2010, the trial court entered its “Order Denying Defendant Haines’s Pro Se Motion to Issue Certificate of Costs.” The order stated, in pertinent part:

ORDERED and ADJUDGED that Defendant Haines’s Pro Se Motion to Issue Certificate of Costs is DENIED. The defendant’s redress is a civil suit directed against Palm Beach County.

Haines appealed.

Section 939.06, Florida Statutes, provides as follows:

(1) A defendant in a criminal prosecution who is acquitted, or discharged is not liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody. If the defendant has paid any taxable costs, or fees required under s. 27.52(l)(b), in the case, the clerk or judge shall give him or her a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to the defendant.
(2) To receive a refund under this section, a defendant must submit a request for the refund to the Justice Administrative Commission on a form and in a manner prescribed by the commission. The defendant must attach to the form an order from the court demonstrating the defendant’s right to the refund and the amount of the refund.

§ 939.06, Fla. Stat. (2010) (emphasis added).

A nolle prosequi by the state amounts to a “discharge” entitling a defendant to a refund of costs under the statute. See Clark, 570 So.2d at 410. Certification of costs is a purely ministerial duty and the trial court (or clerk) has no discretion in deciding whether or not to certify the costs. Id.

In Clark, the Second District set forth the procedure for procuring a refund of such costs under the version of section 939.06 then in effect:

The statute mandates that the defendants must either have the court or the clerk of the court certify that the defendants have paid taxable costs in their defense before their case is discharged. Then the defendants should present such certification to the county pursuant to section 939.08, Florida Statutes (1989), for reimbursement.
If the county refuses to reimburse the costs, the defendants could file a civil suit against the county for a determination of reimbursable costs. “The appropriateness of reimbursement for any particular item is not truly put in issue until the county commission denies payment and a civil suit is brought....” Orange County v. Davis, 414 So.2d 278, 280 (Fla. 5th DCA 1982). If the trial court, during the course of the action against the county, rules that the costs are not reimbursable, the defendants can then appeal that decision.

Id. (footnote omitted).

After Clark was decided, the legislature changed the statutory procedure somewhat. The statute previously required the county to pay and did not require an order from the court. See Ch. 2003-402, § 131, Laws of Fla. (removing the “by the county” language at the end of the subsection). Now, pursuant to the current version of section 939.06, the defendant must obtain a certificate of payment of costs from the clerk or the judge. § 939.06(1), Fla. Stat. (2010). The defendant must also obtain an order from the court “demonstrating the defendant’s right to the refund and the amount of the refund.” See § 939.06(2), Fla. Stat. (2010); see also Ch. 2005-236, § 62, Laws of Fla. (adding subsection (2)). The defendant must then submit a request to the Justice Administrative Commission and attach the court’s order. § 939.06(2), Fla. Stat. (2010).

Here, Haines properly filed a motion for certification of costs under section 939.06, Florida Statutes. This is the first step that a defendant must follow before obtaining a refund of the costs. Certification of costs is a purely ministerial duty and the trial court had no discretion in deciding whether or not to certify the costs. The trial court thus erred in denying the motion to certify costs on the basis that Haines’s “redress is a civil suit directed against Palm Beach County.” Accordingly, we treat this appeal as a petition for writ of mandamus, grant the petition, and remand this matter to the trial court for further proceedings.

Petition granted.

POLEN, TAYLOR and HAZOURI, JJ., concur.


text:
    Jamar B. YOUNG, Appellant, v. DEPARTMENT OF REVENUE o/b/o Natalis PIROOZGAR, Appellee.
    No. 4D11-2790.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Jamar B. Young, Royal Palm Beach, Pro Se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

In this appeal, the Department of Revenue has conceded error in the computation of appellant’s income in the child support guidelines, explaining: “In addition to Appellant’s earned income, the unemployment compensation benefits that he had previously received and was no longer receiving were incorrectly included as Appellant’s income in the guidelines.”

Accordingly, we reverse the Final Administrative Support Order and remand this matter to the lower tribunal for further administrative proceedings.

Reversed and Remanded.

STEVENSON, TAYLOR and LEVINE, JJ., concur.


text:
    Carrie PACKO, Appellant, v. BAC HOME LOAN SERVICING, L.P., f/k/a Countrywide Home Loans Servicing, L.P., National City Bank, Cypress Bay Estates Assoc., Inc., Unknown Parties in Possession #1, Unknown Parties In Possession #2, if Living, All Unknown Parties Claiming by, Through, Under and Against the Above Named Defendant(s) Who Are Not Known to be Dead or Alive, Whether Said Unknown Parties Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants, and Mark T. Packo, Appellees.
    No. 4D11-1928.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Mark T. Packo of Law Offices of Mark T. Packo, P.A., Fort Lauderdale, for appellant.
    Heidi J. Weinzetl of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellee BAC Home Loan Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P.
   PER CURIAM.

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

POLEN, TAYLOR and HAZOURI, JJ., concur.


text:
    Wendy I. YOUNG, Appellant, v. USAA CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D11-44.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Wendy I. Young, Vero Beach, Pro Se.
    Heather Wallace-Bridwell of Peterson Bernard, Stuart, for appellee.
   PER CURIAM.

Plaintiff Wendy I. Young appeals the trial court’s dismissal with prejudice of her complaint against USAA Casualty Insurance Company (USAA) as a sanction for Young’s failure to comply with various discovery orders.

“An order dismissing a complaint as a sanction must ‘contain an explicit finding of willful noncompliance.’ ” Carpenter v. McCarty, 810 So.2d 1053, 1054 (Fla. 4th DCA 2002) (quoting Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990)); see also Adlington v. Florida Parole Com’n, 824 So.2d 256, 257 (Fla. 4th DCA 2002) (citing Lenfestey v. U.S. Balloon Corp., 699 So.2d 850 (Fla. 4th DCA 1997)). The order granting dismissal with prejudice must include an explicit finding of willfulness, even when the lower court cites, with specificity, substantial facts that would support a finding of willfulness. Carpenter, 810 So.2d at 1054.

Here, although the trial court’s order contains details surrounding Young’s failure to comply with the court’s orders and attend depositions, the order does not include an explicit finding of willful noncompliance. Therefore, we reverse and remand for further proceedings. Our decision does not preclude the trial court from entering the same relief as in the instant order.

Reversed and Remanded.

POLEN, TAYLOR and HAZOURI, JJ., concur.


text:
    Tara Mehrbach NEWMYER, Appellant, v. A.G. NEWMYER, III, Appellee.
    No. 4D11-18.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    John G. Crabtree and George R. Baise Jr. of Crabtree & Associates, P.A., Key Biscayne, for appellant.
    Jeffrey D. Fisher and Zachary R. Potter of Fisher & Bendeck, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Sarpel v. Eflanli 65 So.3d 1080 (Fla. 4th DCA 2011).

MAY, C.J., DAMOORGIAN and GERBER, JJ., concur.


text:
    Pacino Duval NEELY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5391.
    District Court of Appeal of Florida, First District.
    March 8, 2012.
    Nancy A. Daniels, Public Defender and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

WOLF, CLARK, and WETHERELL, JJ., concur.


author: WARNER, J.

text:
    Edwin MATOS, Petitioner, v. OFFICE OF THE STATE ATTORNEY FOR THE SEVENTEENTH JUDICIAL CIRCUIT, Respondent.
    No. 4D11-4633.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Edwin Matos, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We grant the petition for writ of mandamus requiring the court to set an immediate hearing pursuant to section 119.11, Florida Statutes, on the petitioner’s public records request. The statute requires the court to set an “immediate” hearing, and petitioner’s claim has been pending for eight months.

Petitioner filed a petition for writ of mandamus in the circuit court on June 13, 2011, seeking to enforce his right to request public documents pursuant to section 119.11. The court ordered the state to respond to the petition in September 2011. The state did not respond, nor did the trial court set a hearing, prompting the petition to this court. We issued an order to show cause, and the state responded requesting additional time to respond in the trial court.

Section 119.11(1) requires the court to set “an immediate hearing, giving the case priority over other pending cases.” We have held that an immediate hearing does not mean one scheduled within a reasonable time but means what the statute says: immediate. See Salvador v. Fennelly, 593 So.2d 1091, 1094 (Fla. 4th DCA 1992). The statutory provisions apply to prisoners. Woodfaulk v. State, 935 So.2d 1225, 1226 (Fla. 5th DCA 2006).

Eight months have passed since the filing of the petition below. That cannot be held to be immediate. The trial court has a ministerial duty to set the hearing.

We therefore grant the writ and order that the trial court shall schedule an immediate hearing pursuant to the statute. We withhold the issuance of the writ, confident that the trial court will comply with our ruling.

DAMOORGIAN and GERBER, JJ., concur.

      . We express no opinion as to whether mandamus is appropriate relief. The trial court requested a response, rather than dismissing the pleading, possibly treating the petition as a complaint.


author: PER CURIAM. KNOLL, JUSTICE,

text:
    STATE of Louisiana v. Michael GARCIA.
    No. 2009-KA-1578.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   PER CURIAM.

|! This direct appeal was taken following the conviction of defendant on one count of first degree murder and a jury’s return of a sentence of death. Among defendant’s assignments of error are claims that the defendant was represented at trial by counsel laboring under conflicts of interest. Namely, in three assignments of error defendant urges that the “[simultaneous representation of three co-defendants by the director of and employees of the 18th Judicial District Indigent Defender created an actual conflict of interest,” and “Mr. D’Aquila’s role as Chief Defender representing all of the men facing the death penalty in this case created an actual conflict of interest in his role as Mr. Garcia’s lawyer,” and “[t]he simultaneous representation of co-defendants by attorneys in the 18th Judicial District Indigent Defender [sic] violated Mr. Garcia’s right to counsel.”

To adequately address these assignments of error, and having reviewed the record in great depth, this court determines that it is necessary to evaluate how the attorneys may be associated with the Public Defender’s Office of the Eighteenth Judicial District. To that end, we remand this matter to the trial court for a hearing to determine the employment status of the attorneys representing the three defendants implicated in the death of Matthew Millican, and specifically to determine whether 12the attorneys representing those defendants were employees of the Eighteenth Judicial District’s Public Defender’s Office.

The trial court is hereby ordered to make a determination in an expeditious manner as to whether each attorney representing those defendants was an employee of the Public Defender’s Office of the Eighteenth Judicial District and to recite the factual basis for each determination. Jurisdiction over all assignments of error is retained by this court pursuant to our plenary supervisory jurisdiction over all other courts and the parties are directed to seek any review of the trial court’s determinations directly in this court. La. Const, art. V, § 5(A). See also State v. Johnson, 2007-2034 (La.6/26/09), 23 So.3d 876.

JURISDICTION RETAINED; REMANDED IN PART.

KNOLL, J., dissents and assigns reasons.

KNOLL, JUSTICE,

dissenting.

IjAs there was no objection by defense counsel, see Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and the record does not demonstrate an actual conflict of interest, i.e., a conflict that affected counsel’s performance, see Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2001), Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), I respectfully dissent from the majority’s remand of this matter for an evidentiary hearing on the employment status of the IDB attorneys.


text:
    In re Joseph G. PASTOREK, II.
    No. 2012-B-0041.
    Supreme Court of Louisiana.
    Feb. 1, 2012.
   IN RE: Disciplinary Counsel; -Other; Applying For Petition for Transfer to Interim Suspension.

ORDER

It Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Joseph G. Pasto-rek, II, Louisiana Bar Roll number 30845, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court. IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

FOR THE COURT:

/s/ Marcus R. Clark

/s/ Justice, Supreme Court of Louisiana


text:
    Rev. Norwood THOMPSON, Jr. and his Wife, Wynette Thompson v. BANK ONE OF LOUISIANA, NA, et al.
    No. 2012-CC-0326.
    Supreme Court of Louisiana.
    Feb. 15, 2012.
   In re Thompson Jr., Rev. Norwood et al.; Thompson, Wynette; — Plaintiffls); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 99-17279; to the Court of Appeal, Fourth Circuit, No. 2012-C-0127.

11 Writ denied.

JOHNSON, J., would grant and assigns reasons.

KNOLL, J., would grant.

JOHNSON, J., would grant the writ application in order to allow relator to prove all his damages, pecuniary and non-pecuniary.


text:
    In re Clark C. ROY.
    No. 2012-OB-0311.
    Supreme Court of Louisiana.
    Feb. 15, 2012.
   In re Disciplinary Counsel;. — Other; Applying For Transfer to Disability Inactive Status.

ORDER

| Considering the Petition for Interim Suspension, or in the alternative, Involuntary Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent, this court finds that respondent has violated the conditions of reinstatement set forth in our opinion in In re: Roy, 07-0929 (La.8/31/07), 963 So.2d 379, by failing to comply with the terms and conditions of his recovery agreement. Our opinion made it clear that any violation of the conditions of reinstatement “may be grounds for immediately transferring respondent to disability inactive status.:.. ” Accordingly,

IT IS ORDERED that respondent, Clark C. Roy, Louisiana Bar Roll number 8220, be and he hereby is transferred to disability inactive status. Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

KNOLL, J., recused.

FOR THE COURT:

/s/ John L. Weimer

/s/ Justice, Supreme Court of Louisiana


text:
    In re Barrett B. DALY.
    No. 2011-OB-2852.
    Supreme Court of Louisiana.
    Feb. 17, 2012.
   In re Daly, Barrett B.; — Plaintiff; Applying For Reinstatement.

ON APPLICATION FOR REINSTATEMENT FROM RECIPROCAL DISCIPLINE

PER CURIAM.

11 This proceeding arises out of a petition for reinstatement from reciprocal discipline filed by petitioner, Barrett B. Daly, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On March 2, 2007, in the case of The Mississippi Bar v. Barrett B. Daly, Docket No. 2005-B-2168, the Supreme Court of Mississippi suspended petitioner from the practice of law for three years. After receiving notice of the order of the Supreme Court of Mississippi, the Office of Disciplinary Counsel (“ODC”) filed a motion to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Ultimately, we imposed reciprocal discipline suspending petitioner from the practice of law in Louisiana for three years. In re: Daly, 07-1053 (La.11/9/07), 967 So.2d 1149.

On December 29, 2011, petitioner filed in this court a petition for reinstatement from reciprocal discipline, indicating that the Supreme Court of Mississippi unconditionally reinstated him to the practice of law in Mississippi on December 8, 2011. In response, the ODC admitted that it was unable to demonstrate any procedural irregularities in the Mississippi reinstatement | aproceeding or present any compelling reason why petitioner’s reciprocal reinstatement should be denied.

DISCUSSION

Reciprocal reinstatements are governed by Supreme Court Rule XIX, § 24(K), which states:

Where the court has imposed a suspension or disbarment solely on the basis of imposition of discipline in another jurisdiction, and where the lawyer gives notice to the court that he or she has been reinstated or readmitted in the other jurisdiction, the court shall determine whether the lawyer should be reinstated or readmitted. Unless disciplinary counsel presents evidence demonstrating procedural irregularities in the other jurisdiction’s proceeding or presents other compelling reasons, the court shall reinstate or readmit a lawyer who has been reinstated or readmitted in the jurisdiction where the misconduct occurred.

Here, we imposed a suspension upon petitioner solely on the basis of the imposition of discipline in Mississippi. After serving his suspension, petitioner was reinstated to the practice of law in Mississippi. The ODC acknowledges that it cannot demonstrate any procedural irregularities in the Mississippi reinstatement proceeding and that it is unable to present other compelling reasons why petitioner’s reinstatement should be denied. Accordingly, petitioner shall be reinstated to the practice of law in Louisiana.

DECREE

Upon review of the record, it is ordered that Barrett B. Daly, Louisiana Bar Roll number 4474, be immediately reinstated to the practice of law in Louisiana. All costs of these proceedings are assessed against petitioner.

       Chief Justice Kimball not participating in the opinion.


author: DREW, J.

text:
    Curtis Daniel STREET, Plaintiff-Appellant v. Cynthia BRIDGES, Secretary, Louisiana Department of Revenue, Defendant-Appellee.
    No. 46,765-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Curtis Daniel Street, In Proper Person.
    Louisiana Dept, of Revenue, Legal Division by Debra Dauzat Morris, Baton Rouge, LA, Shone T. Pierre, Florence Bo-naccorso Saenz, Hammond, LA, Elroy Anthony James, Joe Floyd Stevenson, Bradley S. Blanchard, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   DREW, J.

hThe Louisiana Department of Revenue (“Department”) granted C. Daniel Street extensions of time in which to file his 2006, 2008, and 2009 Louisiana income tax returns. He was assessed penalties for violating subsections (1) and (3) of La. R.S. 47:1602(A). Mr. Street denied owing penalties or interest because he had paid all taxes within the extension periods, and he argued that the Department owed him a refund for assessing the penalties.

In 2010, the Department notified Street that his 2009 tax overpayment of $28.09 would be applied to his outstanding tax liability from 2006.

Street filed suit against the Department in the Fourth Judicial District, Parish of Ouachita, contending that any penalty would be improper, as he had been granted extensions of time during which to file his returns.

In a nutshell, plaintiff contends that:

• he overpaid his 2006 Louisiana income taxes;
• he underpaid his 2008 Louisiana income taxes; and
• he overpaid his 2009 Louisiana income taxes.

Taking the debits and credits together, plaintiff sought a refund of about $250.00 from the Department and a judgment that he did not owe the Department any amounts for tax years 2006, 2008, and 2009.

The Department filed an exception of improper venue, arguing that Plaintiffs suit could be brought only in East Baton Rouge Parish, which is its legal domicile.

Plaintiff responded by filing a motion to declare La. R.S. 47:1576(0 unconstitutional if it requires that all suits against the Department, pursuant |2to this statute, must be filed in East Baton Rouge Parish. Notice of the motion was provided to the Attorney General.

La. R.S. 47:1576 governs the remittance of taxes under protest and suits to recover taxes paid under protest. It provides, in part:

C. This Section shall afford a legal remedy and right of action in any state court having jurisdiction of the parties and subject matter, for a full and complete adjudication of any and all questions arising in the enforcement of this Subtitle as to the legality of any tax accrued or accruing or the method of enforcement thereof. In such action, service of process upon the secretary shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.

The trial court based its granting of the exception of improper venue on the general venue provisions of La. C.C.P. art. 42. The learned court below interpreted the code article to limit such litigation to East Baton Rouge Parish, the Department’s domicile.

The trial court apparently did not rule on the motion to declare La. R.S. 47:1576(0 unconstitutional, since it had held venue to be improper.

Plaintiff appeals. We affirm.

DISCUSSION

Street argues that in 1998, the Legislature enacted La. R.S. 47:15, the “Taxpayer’s Bill of Rights,” which grants taxpayers the right to a formal hearing to contest the assessment of taxes, interest, and penalties by timely filing suit in the appropriate state district court. La. R.S. 47:15 provides:

There is hereby established a Taxpayer’s Bill of Rights to guarantee that the rights, privacy, and property of Louisiana taxpayers are safeguarded and protected during tax assessment, collection, and enforcement processes administered under the tax laws of this state. This Taxpayer’s Bill of Rights consists of a statement, in nontechnical terms, of the rights and obligations of the Department of Revenue and taxpayers. The | ^rights afforded taxpayers to assure that their privacy and property are safeguarded and protected during tax assessment and collection are available only insofar as they are implemented in accordance with the Constitution of Louisiana and Louisiana Revised Statutes of 1950 or the administrative rules of the Department of Revenue. The rights assured Louisiana taxpayers are:
(15) The right to a formal hearing in order to contest the assessment of taxes, interest, and penalties by timely filing suit with the appropriate state district court. The assessment must be paid in full under protest in order to exercise this right in accordance with R.S. 47:1576.
Street further argues:
• the phrase “any court having jurisdiction” in La. R.S. 47:1576(C) has been interpreted to mean that venue must also be considered. See Perry v. State, 479 So.2d 661 (La.App. 3d Cir.1985), and Putch v. Collector of Revenue, 299 So.2d 809 (La.App. 2d Cir.1974);
• however, La. R.S. 47:1576(0) should be interpreted in light of Art. VII, § 3(A) of the Louisiana Constitution, which states:
The legislature shall prohibit the issuance of process to restrain the collection of any tax. It shall provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer;
• any interpretation of La. R.S. 47:1576(C) requiring a taxpayer to protest the amount of taxes due or penalties assessed to file suit in East Baton Rouge Parish runs counter to the protections in the Louisiana Constitution that provide taxpayers with a complete and adequate remedy for the recovery of any illegally paid taxes;
• such interpretation also runs counter to the clear statement in La. R.S. 47:1576(0 that taxpayers can file suit against the Department in any state court having jurisdiction over the parties and the subject matter;
• taxpayers should not be deprived of this complete and adequate remedy when the distance from East Baton Rouge Parish, and the amount at issue make a trip to Baton Rouge too expensive to pursue;
• the trial court was under the mistaken impression that the Attorney General was a necessary party to any consideration of the question of unconstitutionality when all that is required is that the Attorney General receive formal notice of the litigation, which it did;
L* other constitutional provisions are relevant;
• his rights are violated if he must litigate in East Baton Rouge Parish;
• he is being made to suffer unreasonable delay;
• the status quo denies him due process of law; and
• because the amount at issue is small, he is being subjected to forfeiture of property and rights without judicial review as he would lose more in expenses than he would recover in a judgment, even if he should prevail in a lawsuit in East Baton Rouge Parish.
The Department responds that:
• La. R.S. 13:5104(A) establishes a mandatory general venue in suits against state agencies unless a more specific venue provision applies;
• more specifically, this statute requires that any suit against it be filed in the 19th Judicial District Court or in the district court having jurisdiction in the parish in which the cause of action arose;
• this cause of action arose in East Baton Rouge Parish, which was where the administrative decision was made to assess penalties and interest against Street;
• Street could have brought suit for his refund in Ouachita Parish had he only followed the payment under protest procedures of La. R.S. 47:15(15), which requires full payment under protest, after giving notice to the Department of his intent to file suit for recovery, and filing suit within 30 days of giving notice;
• Street did not comply with La. R.S. 47:15(15);
| seizure of the 2009 overpayment of $28.09 does not constitute payment of the full assessment due when Street’s outstanding liability from 2006 and 2008 totaled over $700; and
• Louisiana courts have strictly applied procedural requirements in tax cases.

We agree with the trial court that, in its current posture, this litigation is restricted to East Baton Rouge Parish. Once the trial court found that venue was restricted to the Nineteenth Judicial District, it was proper that the constitutional attack be deferred to a court that is authorized by law to hear the suit. Street can sue for a refund in Ouachita Parish by following the payment under protest procedures found in La. R.S. 47:15(15).

DECREE

We affirm the granting of the Department’s exception of improper venue and dismiss the suit, without prejudice, at the cost of plaintiff.

AFFIRMED.

      . Art. I, § 19 provides for a right to judicial review when a person is subjected to forfeiture of rights or property. Art. I, § 22 provides that all courts shall be open and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to his property.

      . La. R.S. 13:5104. Venue
      A. All suits filed against the state of Louisiana or any state agency or against an officer or employee of the state or state agency for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the state capítol is located or in the district court having jurisdiction in the parish in which the cause of action arises.

      .In A. Sulka & Co. v. City of New Orleans, 208 La. 585, 23 So.2d 224 (1945), the supreme court held that a taxpayer who failed to comply with statutory requirements that he file' suit within 30 days of giving notice of intention to file suit could not maintain its action. That case dealt with the predecessor to La. R.S. 47:1576. It is not unreasonable to mandate that taxpayers strictly follow procedural requirements when seeking the return of money paid to a public body for public purposes. See also, Clark v. State, 2009-1376 (La.App. 1st Cir. 12/23/09), 30 So.3d 812, a case also requiring strict procedural compliance in tax matters.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Errol HALL v. CABLE LOCK FOUNDATION REPAIR, INC.
    No. 2011-CA-1225.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.

      Jacqueline G. Griffith, Charles 0. Taylor, Ryan P. Monsour, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & Hayes, LLP, Metairie, LA, for Plaintiff/Appellant Errol Hall.
    Gerard J. Delahoussaye, Gerard J. Dela-houssaye, APLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DENNIS R. BAGNERIS, SR., Judge.

hln this appeal, Mr. Hall seeks review of the trial court judgment denying his motion to vacate an arbitration award. Specifically, Mr. Hall argues that the arbitrator acted arbitrarily and capriciously in disallowing a witness to testify as an expert and the trial court should have vacated the arbitration award. For the following reasons, we hereby affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Hall and Cable Lock Foundation Repair, Inc. (Cable Lock) entered into a contract whereby Cable Lock was to elevate Mr. Hall’s home. Cable Lock completed the elevation in October 2009. After the elevation was completed, Mr. Hall removed the sub-flooring of his home. Sometime in March 2010, the roof collapsed. Mr. Hall believed Cable Lock performed faulty work which caused the roof to collapse and the parties proceeded with arbitration pursuant to their contract.

At the arbitration proceeding, both parties presented testimony and evidence. In addition to his engineering expert, Mr. Hall attempted to qualify his neighbor, Mr. Alfred Lewis, as an expert in the construction industry. While the arbitrator allowed Mr. Lewis to testify, Mr. Lewis was not qualified as an expert in the ^construction industry. At the time of the arbitration hearing, Mr. Lewis possessed twenty years experience in the construction industry and had participated in the elevation of about five homes. Mr. Lewis, an unlicensed contractor, possessed no specialized education, technical experience or scientific knowledge in the construction industry.

The arbitration award denied the claim of Mr. Hall and attributed the roof collapse to the removal of the sub-flooring by Mr. Hall. The arbitrator found that the removal of the sub-flooring compromised the integrity of Mr. Hall’s home and caused the collapse.

Mr. Hall filed a motion to vacate and reverse the arbitration award in Civil District Court. Mr. Hall alleged that the arbitrator erred in not qualifying Mr. Lewis as an expert. Cable Lock filed an opposition to Mr. Hall’s motion and a motion to confirm the arbitration award. After conducting a hearing, the trial court denied the motion to vacate the arbitration award filed by Mr. Hall and granted the motion to confirm the arbitration award filed by Cable Lock. From that judgment, Mr. Hall appeals.

STANDARD OF REVIEW

Arbitration is a substitute for litigation. Montelepre v. Waring Architects, 2000-0671, 2000-0672, p. 3 (La.App. 4 Cir. 5/16/01), 787 So.2d 1127, 1130. (Other citations omitted.). The purpose of arbitration is a fast and inexpensive manner for the settlement of differences. Id. Arbitration is favored in Louisiana and arbitration awards are presumed to be valid. Johnson v. 1425 Dauphine, L.L.C., 2010-0793, p. 7 (La.App. 4 Cir. 12/1/10), 52 So.3d 962, 967. The parties to an arbitration proceeding are presumed to accept the risk of procedural and substantive mistakes of either fact or law. Id.

[sIn the absence of statutory or agreed to procedures, the arbitrator has broad discretion in conducting arbitration proceedings. Southern Tire v. Virtual Point Development, 2000-2301, p. 6 (La.App. 4 Cir. 9/26/01), 798 So.2d 303, 307. A reviewing court’s primary function is to determine whether the arbitration proceedings have been fundamentally fair. Id. (Other citations omitted.).

DISCUSSION

In his assignment of error, Mr. Hall alleges that that arbitrator acted arbitrarily and capriciously and denied his rights by failing to qualify Mr. Lewis as an expert.

The statutory grounds for vacating an arbitration award are:

A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D.Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

La. R.S. 9:4210.

Thus, Mr. Hall alleges the arbitrator violated La. R.S. 9:4210(C) by refusing to hear evidence pertinent and material to the controversy.

The Code of Evidence allows a witness to be qualified as an expert. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto inj^the form of an opinion or otherwise.” La. C.E. art. 702. A trial judge has wide discretion in determining whether to allow a witness to testify as an expert and the decision to qualify or disqualify a witness will not be disturbed unless it is clearly erroneous. Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5, (La.App. 4 Cir. 7/29/09) 17 So.3d 459, 463. (Other citations omitted.).

Mr. Hall argues Mr. Lewis’ experience consisting of twenty years in the construction industry qualified him as an expert. Cable Lock argues that the arbitrator was not convinced that Mr. Lewis’ involvement in about five home-elevation projects qualified him as an expert. Cable Lock notes that Mr. Lewis was allowed to testify as a lay witness to compliment the testimony of Mr. Hall’s engineering expert.

Mr. Hall cited Webb v. Massiha, 08-0226 (La.App. 5 Cir. 9/30/08), 993 So.2d 345, in support of his argument. In Webb, the defendant filed a motion to strike the testimony of all live witnesses and accept depositions in lieu thereof. Id., p. 3, 993 So.2d at 346. The arbitration panel granted the motion to strike four days prior to the arbitration proceeding. The plaintiff intended on calling her expert and lay witnesses live, as provided by a scheduling order. The court found the timing of the motion to strike prejudicial, as the plaintiff had not taken perpetuation depositions. The court further found that the decision to strike live testimony was not legally supportable. Id., p. 6, 993 So.2d at 348. Thus, the court vacated the decision of the arbitration panel. Id., p. 7, 993 So.2d at 349. We do not find this case supports Mr. Hall’s position. Webb involved the striking of all live testimony, which is not legally supportable. The decision to qualify or not qualify an expert is based on La. C.E. art. 702 and is legally supportable.

| sin this case, during the hearing before the district court, Mr. Hall argued that Mr. Lewis was prevented from testifying as to what and how the home was weakened and collapsed. Cable Lock noted that Mr. Hall’s engineer testified as to those items.

However, the record before us lacks a record and transcript from the arbitration proceeding. “Where factual issues are being disputed, and the appellate record does not contain either a transcript or narrative of facts agreed to by the parties, there is nothing for appellate review.” Southern Tire, 2000-2301, p. 7, 798 So.2d at 307. (Other citations omitted.). There is no evidence in the record of Mr. Lewis’ experience and how that experience would have assisted the arbitrator, an engineer himself, in understanding the evidence or determining a fact in issue. Thus, we conclude the arbitrator was not clearly erroneous in failing to qualify Mr. Lewis as an expert.

Further, there is no evidence in the record that the arbitrator was guilty of misconduct in refusing to qualify Mr. Lewis as an expert. A party attacking an arbitration award must prove misconduct on the part of an arbitrator in refusing to hear evidence. La. R.S. 9:4210(C). Mr. Hall failed to prove misconduct on the part of the arbitrator in refusing to qualify Mr. Lewis as an expert.

Mr. Hall also argued that the arbitrator exhibited partiality. Again, there is no transcript from the arbitration proceeding in the record. There is no evidence in the record before us to confirm that the arbitrator exhibited partiality.

Considering the lack of evidence of misconduct and the presumption of validity of ai'bitration awards, we conclude the arbitration proceeding was fundamentally fair. We find the trial court did not err in denying the motion to vacate the arbitration award or in confirming in the arbitration award.

| ^Accordingly, the judgment of the trial court denying the motion to vacate the arbitration award and granting the motion to confirm the arbitration award is affirmed.

AFFIRMED