author: TAYLOR, J.

text:
    Eric T. BROWN and Dorothy Scott, as Personal Representatives of the Estate of Eric T. Brown, Jr., Appellants, v. CITY OF VERO BEACH and Indian River County Board of County Commissioners, Appellees.
    No. 4D10-1903.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      Joseph H. Graves and Julia A. Farkas of Joseph H. Graves, P.A., Vero Beach, for appellants.
    Charles P. Vitunac, City Attorney, and Wayne R. Coment, Assistant City Attorney, Vero Beach, for Appellee-City of Vero Beach, and Michael G. Kissner, Jr. and Paul R. Berg of Vocelle & Berg, LLP, Vero Beach for Appellee-Indian River County Board of County Commissioners.
   TAYLOR, J.

This appeal arises from the tragic death of 14-year-old Eric T. Brown, Jr., who drowned while trying to save his 15-year-old friend, who was caught in an ocean rip current off South Beach Park in Vero Beach, Florida. Eric’s parents, as the personal representatives of his estate, brought a wrongful death action against the City of Vero Beach (‘Vero Beach”) and the Indian River County Board of County Commissioners (“Indian River”), alleging that they breached their duty to warn the public of dangerous conditions in the ocean. Because the trial court correctly determined that section 380.276, Florida Statutes (2005), precludes the plaintiffs’ cause of action against the defendants, we affirm the trial court’s dismissal of their complaint with prejudice.

The plaintiffs filed an amended complaint against Vero Beach and Indian River, alleging that the defendants co-owned South Beach Park and held the park “out to the public as a swimming area or led the public to believe the area was a designated swimming area.” The complaint further alleged:

On or about October 7, 2007, Decedent, ERIC T. BROWN, JR., entered South Beach Park along with some friends. At approximately 4:00 p.m. that afternoon, the decedent, ERIC T. BROWN, JR., entered the water to assist a female friend when he disappeared under large waves at an unguarded area of the beach. Unbeknownst to the decedent, ERIC T. BROWN, JR., a condition existed in the ocean known as a “rip current” which dragged the decedent’s body from the shore and caused him to drown. The decedent’s body has never been recovered.

The complaint alleged negligence against both Vero Beach and Indian River, asserting that: (1) they had a duty of care to warn the public of any dangerous conditions of which they knew or should have known; (2) they breached their duty of care by failing to warn both the public and Eric that rip currents existed or were possible based on the conditions being favorable for rip currents; (8) this hazardous and dangerous condition was known to Vero Beach and Indian River or it had existed for a sufficient length of time that they reasonably should have known of the hazardous and dangerous condition; and (4) that as a result of Vero Beach’s and Indian River’s negligence, the survivors suffered losses.

Vero Beach and Indian River filed motions to dismiss the amended complaint. They argued that the plaintiffs’ cause of action was barred by section 380.276(6), Florida Statutes, which exempted local government entities from liability for any injury or loss of life caused by changing surf and other naturally occurring conditions along coastal areas. The trial court agreed and dismissed the amended complaint with prejudice.

“Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal under the de novo standard of review.” Regis Ins. Co. v. Miami Mgmt., Inc., 902 So.2d 966, 968 (Fla. 4th DCA 2005) (citing Bell v. Indian River Mem’l Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001)). Further, where the question involves interpretation of a statute, it is subject to de novo review. Tasker v. State, 48 So.3d 798, 804 (Fla.2010).

This appeal concerns whether section 380.276(6), Florida Statutes (2007), creates a limitation on the liability of local governments for death and injuries resulting from rip currents. As with the interpretation of any statute, the starting point of analysis is the actual language of the statute. Cont’l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 374 (Fla.2008). “When a statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Lee Cnty. Electric Coop., Inc. v. Jacobs, 820 So.2d 297, 303 (Fla.2002) (citations omitted). If the statute is clear and unambiguous, it is given its plain and obvious meaning without resorting to the rules of statutory construction and interpretation, unless this would lead to an unreasonable result or a result clearly contrary to legislative intent. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). Florida courts are “ “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ ” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)) (emphasis in original).

Section 380.276 was created in 2002 and amended in 2005 to add subsection (6), with a July 1, 2005 effective date. Section 380.276(6), Florida Statutes (2005), provides as follows:

Due to the inherent danger of constantly changing surf and other naturally occurring conditions along Florida’s coast, the state, state agencies, local and regional government entities or authorities, and their individual employees and agents, shall not be held liable for any injury or loss of life caused by changing surf and other naturally occurring conditions along coastal areas, whether or not uniform warning and safety flags or notification signs developed by the department are displayed or posted.

The language of this subsection is clear and unambiguous, such that the plain meaning should be used to determine legislative intent. This subsection begins by acknowledging the legislature’s awareness that Florida’s coast is subjected to constantly changing surf and other naturally occurring conditions that constitute an inherent danger in the coastal areas of the state. Because of this inherent danger, the statute protects government entities and their employees and agents from liability for injuries or death caused by changing surf or any other naturally occurring conditions along Florida’s coastal areas. This protection from liability is given to government entities regardless of whether or not there are warning flags or notification signs displayed. Thus, on its face, the statute clearly and unambiguously shows the legislature’s intent to limit the statutory waiver of sovereign immunity it created in section 768.28, Florida Statutes.

The plaintiffs argue that the statute is ambiguous, given the overall legislative plan, as expressed it the statute’s title, “Beaches and coastal areas; display of uniform warning and safety flags at public beaches; placement of uniform notification signs; beach safety education.” The plaintiffs contend that the legislative history of section 380.276 shows a desire to have all of Florida’s beaches and coastal areas adopt a uniform notification system for warning and safety flags. They point out that nowhere in the chapter title is there a reference to governmental immunity, and that the first five sections of 380.276 address only the development of a program for uniform warning and safety flags at public beaches. The plaintiffs further argue that section (6) makes no mention of the legislature’s intent to eliminate a common law cause of action against local governments for any negligence resulting in injury or loss of life caused by changing surf or other naturally conditions along the coast, so long as the claim is not predicated on the failure to use state-approved warning flags or signs.

However, as discussed above, because the language of section 380.276(6) is clear and unambiguous, its plain and ordinary meaning controls; we cannot resort to legislative history or other rules of statutory construction to discern its meaning. In short, the subsection provides that government entities may not be held liable for death or injury due to changes in surf or other naturally occurring conditions along the coast, whether or not warnings were displayed.

The plaintiffs argue that the government is responsible for dangerous conditions on its property, regardless of whether it is a naturally occurring condition. Relying on Breaux v. City of Miami Beach, 899 So.2d 1059 (Fla.2005), the plaintiffs argue that a governmental entity has an operational level duty to maintain a safe premises and a duty of reasonable care, just like a private individual, to make those premises safe or to warn of problems that may occur on their premises. In Breaux, on February 20, 1997, a woman was swimming off the coast of Miami Beach when she got caught in a rip current. Id. at 1062. Hearing her cries for help, Mr. Breaux attempted to save her, but both were overcome by the current and drowned. Id. Wrongful death actions were brought against multiple defendants. Id. All the complaints were dismissed with prejudice except as to the City of Miami Beach. Id. Those complaints alleged the City was negligent in failing to warn swimmers of rip-current dangers, even though it knew the area was used for swimming. Id. The trial court granted the City’s summary judgment motion, finding the City was immune from suit. Id. at 1068. The Third District affirmed, not on the issue of sovereign immunity, but instead of the lack of the City’s duty to warn the decedents of rip currents. Id. Because this decision conflicted with the Florida Supreme Court’s 2000 decision in Florida Department of Natural Resources v. Garcia, 753 So.2d 72 (Fla.2000), the supreme court accepted jurisdiction. Id.

In Breaux, the supreme court explained that “ ‘[a] government unit has the discretionary authority to operate or not operate swimming facilities and is immune from suit on that discretionary question. However, once the unit decides to operate the swimming facility, it assumes the common law duty to operate the facility safely, just as a private individual is obligated under like circumstances.’ This duty includes ‘keeping] the premises in a reasonably safe condition and ... warning] the public of any dangerous conditions of which [the government entity] knew or should have known.’ ” Id. at 1064 (alterations in original) (citations omitted). Further, “[i]f ‘the governmental] entity held the area out to the public as a swimming area or led the public to believe the area was a designated swimming area,’ the governmental entity owes an operational-level duty of care to those using the swimming area.” Id. (citing Garcia, 753 So.2d at 76). The court concluded that the City was operating a “public swimming area” and that “[t]he City therefore had an operational-level duty of care ‘to warn the public of any dangerous conditions of which it knew or should have known.’ ” Id. at 1065 (citing Garcia, 753 So.2d at 75).

Breaux was issued on March 24, 2005. Section 380.276(6), however, became effective on July 1, 2005, after Breaux. The enactment of this subsection overrides the analysis in Bream. Additionally, the underlying events from Bream occurred in 1997, long before the original 2002 enactment of section 380.276 and the 2005 amendment adding subsection (6). Thus, the government entities involved in Bream did not have the benefit of subsection (6), and as such could not claim immunity for the occurrences in 1997.

The plaintiffs’ argument that section 380.276(6) abrogated a long-standing common law right to bring a negligence claim against the City of Vero Beach and Indian River County is without merit. Prior to 1776, the prevailing common law in Florida was the doctrine of sovereign immunity. Cauley v. City of Jacksonville, 403 So.2d 379, 385 (Fla.1981) (stating that “[tjhere was no statutory right to recover for a municipality’s negligence predating the adoption of the declaration of rights contained in the Florida constitution nor was there a cause of action at common law as of July 4, 1776, adopted under section 2.01, Florida Statutes”). With the enactment of section 768.28, Florida Statutes, there came a limited waiver of governmental sovereign immunity for municipalities. This change, as courts observed, brought with it fairness, equality, and consistency by providing instances in which municipalities would not be immune from suit. Id. It is within the legislature’s “discretion to place limits and conditions upon the scope of the sovereign immunity waiver.” Campbell v. City of Coral Springs, 538 So.2d 1373, 1375 (Fla. 4th DCA 1989). Such discretion was exercised by the legislature in enacting section 380.276(6).

Because the allegations of the amended complaint fall squarely under the statute’s provision for government immunity in the event of injury or death caused by the changing surf or other naturally occurring conditions along Florida’s coastal areas, we affirm the trial court’s order dismissing the amended complaint with prejudice.

Affirmed.

STEVENSON and GERBER, JJ., concur.

      . The defendants also argued that the complaint did not specifically allege where the drowning occurred or that it occurred within the park; they alleged only that the decedent entered through South Beach Park.

      . Section 380.276 Beaches and coastal areas; display of uniform warning and safety flags at public beaches; placement of uniform notification signs; beach safety education.-
      (1) It is the intent of the Legislature that a cooperative effort among state agencies and local governments be undertaken to plan for and assist in the display of uniform warning and safety flags, and the placement of uniform notification signs that provide the meaning of such warning and safety flags, at public beaches along the coast of the state. Because the varying natural conditions of Florida’s public beaches and coastal areas pose significant risks to the safety of tourists and the general public, it is important to inform the public of the need to exercise caution.
      (2) The Department of Environmental Protection, through the Florida Coastal Management Program, shall direct and coordinate the uniform warning and safety flag program. The purpose of the program shall be to encourage the display of uniform warning and safety flags at public beaches along the coast of the state and to encourage the placement of uniform notification signs that provide the meaning of such flags. Only warning and safety flags developed by the department shall be displayed. Participation in the program shall be open to any government having jurisdiction over a public beach along the coast, whether or not the beach has lifeguards.
      (3)The Department of Environmental Protection shall develop a program for the display of uniform warning and safety flags at public beaches along the coast of the state and for the placement of uniform notification signs that provide the meaning of the flags displayed. Such a program shall provide:
      (a) For posted notification of the meaning of each of the warning and safety flags at all designated public access points.

        (b) That uniform notification signs be posted in a conspicuous location and be clearly legible.
      (c) A standard size, shape, color, and definition for each warning and safety flag.
      (4) The Department of Environmental Protection is authorized, within the limits of appropriations or grants available to it for such purposes, to establish and operate a program to encourage the display of uniform warning and safety flags at public beaches along the coast of the state and to encourage the placement of uniform notification signs that provide the meaning of the flags displayed. The department shall coordinate the implementation of the uniform warning and safety flag program with local governing bodies and the Florida Beach Patrol Chiefs Association.
      (5) The Department of Environmental Protection may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Saul KLINOW and Edythe B. Klinow, individually, and as property owners in, and members of Island Court at Boca West Property Owners’ Association, Inc., a Florida nonprofit corporation, Appellants, v. ISLAND COURT AT BOCA WEST PROPERTY OWNERS’ ASSOCIATION, INC., a Florida nonprofit corporation, Appellee.
    Nos. 4D09-5307, 4D10-1233.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      Raoul G. Cantero, Douglas M. Halsey, Kerri L. McNulty and David P. Draigh of White & Case LLP, Miami, and Fred W. Mattlin and Joshua L. Zipper of Mattlin & Wyman, PL, Boca Raton, for appellants.
    Thomas E. Scott, Jr., Barry A. Postman and John S. Penton, Jr., of Cole, Scott &
      Kissane, P.A., West Palm Beach, for appel-lee.
   POLEN, J.

Appellants the Klinows appeal the trial court’s final order entering judgment for fees and costs in favor of appellee Island Court at Boca West Property Owners’ Association, Inc. (“Island Court”). We find that the Homeowners’ Association conducted a proper special meeting of its members and successfully obtained a two-thirds majority vote in favor of a proposed beautification project. Accordingly, we affirm.

The Klinows purchased their home in Island Court on September 21, 1987 and received a warranty deed stating that “conveyance is subject to the ... Declaration of Restrictions and Protective Covenants for Island Court.” Associations are governed by chapter 720, Florida Statutes, and any governing documents particular to the association, such as articles of incorporation, bylaws, and declarations. Specifically, the Island Court articles state that each owner is a member of the Boca West Maintenance Association (“Association”) and “becomes subject to the terms and conditions of the Amended Declaration of Maintenance Covenants for Boca West (“Declaration”) dated April 18,1974.” The Declaration provides that it may be further amended at any time upon a two-thirds member vote.

A properly held special meeting took place on December 13, 2007 to discuss a beautification project to replace driveways and sidewalks on the individual lots at each unit owner’s expense. The proposal passed with two-thirds of the votes in favor of the project. At its annual meeting, the Association sought to receive approval for some clarifications to the language of the amendment. The amendment still requested the authority to replace walkways and driveways, but also added more language, including that which gave the Association sole discretion to make those changes. The amendment undisputedly passed, again with at least two-thirds vote. Both amendments were recorded on May 21, 2008.

In April of 2008, the Klinows filed a complaint against the Association for temporary and permanent injunctive relief and damages. The complaint alleged several counts, including substantive and procedural defects to the amendments. The trial court dismissed the complaint and referred the matter to mediation. The Klinows filed an amended complaint when mediation efforts failed. The amended complaint alleged six counts: declaratory judgment as to procedural violations related to the special meeting; declaratory judgment as to procedural violations of the written agreement at the annual meeting; permanent mandatory injunctive relief declaring amendments void; misrepresentation and fraud; breach of fiduciary duty against the Board of Directors; and violation of section 720.303, Florida Statutes. After a complete trial, the court entered a final judgment, finding for Island Court on all counts. Island Court was thereby awarded attorney’s fees and costs. This appeal followed.

“The interpretation of a contract or a covenant is a matter of law, and, therefore, renewable by this court” using the de novo standard of review. Argoff v. Rainberry Bay Homes Ass’n, 828 So.2d 399, 401 (Fla. 4th DCA 2002); Royal Oak Landing Homeowner's Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993). Aside from contract interpretation, the trial court considered many factual issues below as well. This court has provided that mixed questions of fact and law require the application of two different standards of review. Powell v. State, 958 So.2d 1012, 1013-14 (Fla. 4th DCA 2007). The factual findings must be supported by competent, substantial evidence, while legal findings are reviewed de novo. Id.

“In determining the enforceability of an amendment to restrictive covenants, the test is one of reasonableness.” Holiday Pines Prop. Owners Ass’n v. Wetherington, 596 So.2d 84, 87 (Fla. 4th DCA 1992). This court defined “reasonable” as “not arbitrary, capricious, or in bad faith.” Hollywood Towers Condo. Ass’n v. Hampton, 40 So.3d 784, 787 (Fla. 4th DCA 2010). In other words, as we stated in Holiday Pines, the modification of restrictions cannot “destroy the general plan of development.” Holiday Pines, 596 So.2d at 87 (citing Nelle v. Loch Haven Homeowners Ass’n, 413 So.2d 28 (Fla. 1982)). Amendments which cause “the relationship of lot owners to each other and the right of individual control over one’s own property” to be altered are unenforceable. Id. at 88. Such an alteration is considered a “radical change of plans.” Id.

The original Island Court Declaration allowed the Association to paint, repair, replace and care for garage doors, fences, and exterior building surfaces, other than front residence doors, windows, screening, roofs, gutters, and down-spouts. A proposed amendment merely sought to allow the Association to replace privately owned driveway and walkway materials in addition to those tasks enumerated in the original Declaration. The Association’s beautification plan included a change of the type of driveway whereby all driveways would conform to the same specifications and would adhere to the general plan of uniformity in the development, as promised. The Board received two-thirds approval by the voting members to make such modifications.

This court has defined a radical change as a change which would create an inconsistent scheme, or a deviation in benefit from that of the grantee to that of the grantor. Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665, 666 (Fla. 4th DCA 1974). Here, the changes would mutually benefit the grantor and the grantee. The benefit to the grantee is exemplified in a letter written to the homeowners which provided that the proposed changes would result in a more aesthetically pleasing community. The attempt to beautify and unify Island Court would effectually upgrade the values of the property within the community without fundamentally changing any homeowner’s personal property or community plans. Thus, there is no shift in benefit from the grantee to grantor; therefore no radical change of plan would occur as to make the changes unreasonable.

Additionally, the Klinows alleged there was a procedural error during the vote to pass the amendment and argued that “contingency votes” were improperly submitted. Island Court rebutted the allegation with the fact that three voters merely changed their minds after reconsidering the language of the amendment. The Kli-nows argued that contingency votes are not allowed in the Association or under Florida Statutes, so three votes in favor of the amendment which they deemed “contingent” should be declared invalid. Without those three votes, the two-thirds majority threshold would not have been met, preventing the amendment from passing. However, this argument lacks merit because a second vote was conducted shortly thereafter, encompassing the same amendments as the original vote with more discretion being granted to the Association. That second vote undisputedly passed with the necessary number of votes.

The Klinows also contended that because no voting certificates were used, all votes from owners of lots with multiple owners should not count toward the passing of the amendment. However, the Department of Business and Professional Regulation has concluded that:

Voting certificate requirements are allowable devices to avoid confusion from possible conflicting votes from a single unit. They trill not be rigidly enforced to interfere with the statutory right to vote of recognized owners of condominium units, unless the association demonstrates good cause to do so. When an association has not consistently enforced provisions requiring voting certificates, failure to comply with technical requirements of such provisions will not be accepted as grounds to reject votes of unit owners of the condominium.

Caribbean Gardens Condo. Ass’n v. Unit Owners Voting for Recall, No. 2007-05-3419, 2007 WL 6609169 (Fla. DBPR Arb. Oct. 24, 2007) (emphasis added).

The Klinows’ position was that because Mr. Klinow was able to produce a voting certificate from a past vote that the Association failed to comply with its own requirements. To the contrary, unless the voting certificates were used regularly and always, a vote will not be disenfranchised in the absence of a certificate. The proof of one past voting certificate does not show use either regularly or always and, instead, only shows certificates have been used at least once before.

There was evidence in the record to support a finding that the amendment to the Declaration which is at issue in this case was reasonable and beneficial to the owners of the Island Court property homes. Further, the Homeowners’ Association conducted a proper special meeting of its members and successfully obtained a two-thirds majority vote in favor of the proposed beautification project. Accordingly, we affirm the decision of the lower court.

Affirmed.

WARNER and LEVINE, JJ., concur.

      . Chapter 720 of the Florida Statutes is meant "to provide procedures for operating homeowners' associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.” § 720.302(1), Fla. Stat. (2010). The voting rights of Florida homeowners' associations are found under section 720.306(l)(b), which states that “[u]nless otherwise provided in the governing documents or required by law ... any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association.” § 720.306(1)(b), Fla. Stat. (2010).

      . Holiday Pines and Hollywood Towers pertain to condominium associations, but the cases are instructive in determining whether Island Court’s Association acted reasonably.


author: VILLANTI, Judge.

text:
    Stephen Chavaulier HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1976.
    District Court of Appeal of Florida, Second District.
    June 29, 2011.

      James Marion Moorman, Public Defender, and Deana Marshall, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Stephen Henry appeals his convictions and sentences for one count of scheme to defraud, one count of grand theft, and one count of fraudulent use of personal identification information. We affirm Henry’s conviction for fraudulent use of personal identification information without further comment. However, because Henry’s convictions for both scheme to defraud and grand theft violate double jeopardy, we vacate the grand theft conviction and remand for resentencing using a corrected scoresheet.

The evidence at trial established that two women stole a credit card belonging to Judy Jones while she was working in a Lakeland shopping mall. At 3 a.m. the next morning, Henry entered a CVS drug store accompanied by one of the two women. The woman gathered several items from the store and placed them on the checkout counter. As she did so, Henry-approached the counter carrying several gift cards. After the woman walked toward the back of the store, Henry used Jones’ stolen credit card to make two separate purchases — one for the items brought to the counter by the woman and the second for the gift cards he wanted. After the purchases were complete, the woman returned to the front of the store and accompanied Henry as he left the store.

Three hours later, Henry returned to the CVS store alone and tried to purchase additional gift cards using Jones’ stolen credit card. The CVS clerk refused to complete the sale when she noticed that the credit card did not bear Henry’s name. Henry told the clerk that the card belonged to “a woman” or “his aunt” who was outside in the car. WTien the clerk told Henry that his aunt would have to come inside, Henry walked to the door and called to someone outside. When the person refused to come into the store, Henry returned to the counter, told the clerk he would not complete the purchase, and left.

Henry was subsequently identified based on the store surveillance video. He was arrested and charged with one count of scheme to defraud CVS, one count of grand theft from either CVS or Judy Jones, and one count of criminal use of personal identification information based on his use of Jones’ credit card. The jury found Henry guilty as charged, and the court sentenced him on each count to three years in prison followed by three years’ probation as a habitual felony offender.

In this appeal, Henry argues that the evidence was insufficient to support his convictions, that the prosecutor made improper statements during closing arguments, and that his dual convictions for scheme to defraud and grand theft violate double jeopardy. We reject all of Henry’s arguments except the double jeopardy claim. That argument, which raises an issue of fundamental error and so can be asserted for the first time on appeal, see Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005), has merit and requires us to vacate the grand theft conviction and remand for resentencing.

The supreme court has held that “double jeopardy principles preclude convictions for both grand theft and organized fraud based upon the same conduct.” Pizza v. State, 945 So.2d 1203, 1206 (Fla.2006). When two convictions violate double jeopardy, the conviction for the “lesser” offense must be vacated. Id. (citing State v. Barton, 523 So.2d 152, 153 (Fla.1988)). In determining which offense is the “lesser” offense, the court held that “lesser offenses ‘are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial.’ ” Id. (quoting State v. Florida, 894 So.2d 941, 947 (Fla.2005)). Applying this analysis to the convictions for grand theft and organized fraud, the supreme court held that because organized fraud includes all of the elements of grand theft as well as an additional element, grand theft is a lesser offense of organized fraud. Id. at 1207. Therefore, the court held that Pizzo’s grand theft convictions should have been vacated as lesser offenses of his organized fraud conviction. Id.; see also Raines v. State, 19 So.3d 331, 332 (Fla. 2d DCA 2009).

Here, as in Rizzo and Raines, Henry’s convictions for organized scheme to defraud and grand theft are based on the same underlying conduct. Therefore, his convictions for both offenses violate double jeopardy. Consistent with Pizzo, we must therefore vacate the grand theft conviction and remand for Henry to be resentenced pursuant to a corrected scoresheet.

Affirmed in part, vacated in part, and remanded for resentencing.

ALTENBERND and CRENSHAW, JJ„ Concur.


author: WALLACE, Judge.

text:
    Jeffrey JANKOWSKI, Appellant, v. Dawn M. DEY, a/k/a Dawn Jankowski, f/k/a Dawn Cain; Donald P. DeCort; Law Office of Donald P. DeCort, P.A.; and Stahl Consulting Group, CPA, Appellees.
    No. 2D09-5388.
    District Court of Appeal of Florida, Second District.
    July 1, 2011.

      Jeffrey J. Jankowski, pro se.
    Dawn M. Dey, pro se.
    Donald P. DeCort and Kristin R.H. Kirkner of Law Office of Donald P. De-Cort, P.A., Tampa, for Appellees Donald P. DeCort, Law Office of Donald P. DeCort, and Stahl Consulting Group.
   WALLACE, Judge.

Jeffrey J. Jankowski (the Former Husband) appeals the circuit court’s order granting an attorney’s motion to set aside a satisfaction of a money judgment for attorney’s fees in favor of Dawn M. Dey (the Former Wife). Earlier, in the underlying proceeding for dissolution of marriage, the circuit court had awarded the money judgment for attorney’s fees against the Former Husband and in favor of the Former Wife. The circuit court’s order under review also amended the money judgment by redirecting a portion of the monies due under it to the Former Wife’s attorney and her expert witness.

We reverse the circuit court’s order for two reasons. First, the Former Wife’s attorney lacked standing to challenge the satisfaction of the Former Wife’s money judgment against the Former Husband. Second, the circuit court lacked jurisdiction to enter what amounted to an amendment of its prior order after that order had become final.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The marriage between the Former Husband and the Former Wife was dissolved in 2007. Although our record in this case is quite limited, it is sufficient to demonstrate that the underlying proceedings for dissolution of marriage were pending in the circuit court for several years. The proceedings were also extremely contentious and generated substantial expenses for attorney’s fees and costs.

In an order entered in July 2008 that awarded the Former Wife attorney’s fees, the circuit court found that the Former Husband’s conduct was the primary reason for the excessive and expensive litigation. The circuit court awarded the Former Wife her attorney’s fees and costs based upon her need, the Former Husband’s ability to pay, and a finding that the Former Husband had engaged in excessive litigation “motivated by malice and ill will, driven by a sad obsession with proving his dominance over his ex-wife.” The circuit court concluded that “even if the disparity in need and ability to pay were disregarded, an award of $182,639 would separately and independently be justified” by the Former Husband’s conduct in that “[t]his latter amount of fees was encountered solely due to the [Fjormer [Hjusband’s abusive litigation tactics.” Based on these and other findings, the circuit court ordered the Former Husband within thirty days to pay the Former Wife the sum of $214,353 for her attorney’s fees and costs.

Notably, the order awarding the Former Wife her attorney’s fees and costs does not direct payment to her attorneys or otherwise address the issue of their entitlement to enforce the award. The order does reflect that $146,025 of the amount awarded was for the services of the Law Office of Donald P. DeCort, P.A. (DeCort) and that $36,614 was for work performed by the Stahl Consulting Group, CPA (Stahl). The remainder of the award was for work performed by other attorneys who had represented the Former Wife during the proceedings.

The Former Husband did not comply with the order to pay the Former Wife the award of attorney’s fees and costs within thirty days. On December 30, 2008, the circuit court reduced the $214,353 award to a money judgment in favor of the Former Wife. Consistent with the original award, the money judgment was in favor of the Former Wife and did not direct payment to her attorneys. Neither the Former Husband nor the Former Wife filed a timely motion for rehearing directed at the money judgment.

On March 30, 2009, almost three months after the entry of the money judgment, the Former Husband and the Former Wife filed with the clerk their Joint Stipulation for Satisfaction of Judgment of Attorney’s Fees. In pertinent part, the stipulation states:

[T]he parties ... stipulate and agree that the money judgment for attorney’s fees against Jeffrey Jankowski entered on December 30, 2008[J in the amount of $214,358.00 in the aforementioned case is hereby satisfied; and in consideration it is further agreed by and between the parties that Respondent, Jeffrey Jankowski[,] shall voluntarily dismiss the appeal currently pending before the Second District Court of Appeal[ ] in Consolidated Appellate Case Nos.: 2D08-3732, 2D08-212, and 2D07-4863 upon the execution of the order satisfying the judgment for attorney’s fees against Jeffrey Jankow-ski.

On June 3, 2009, this court dismissed the appeals referred to in the stipulation in accordance with a notice of voluntary dismissal. Jankowski v. Jankowski, 8 So.3d 1140 (Fla. 2d DCA 2009) (table decision).

Next, DeCort filed a “motion to set aside joint stipulation for satisfaction of money judgment of attorney’s fees, strike satisfaction of money judgment, and partially assign money judgment for attorney’s fees and costs.” The circuit court conducted an evidentiary hearing on the motion. At the hearing, counsel for DeCort and Stahl argued that the joint stipulation for satisfaction of judgment should be set aside as fraudulent because the Former Husband and the Former Wife had misrepresented that the judgment had been satisfied. The Former Wife, who appeared pro se, opposed setting aside the joint stipulation and argued “that the money judgment was settled and paid in full by dropping the appeal.” The Former Husband did not appear at the hearing.

Counsel for DeCort and Stahl testified that the Former Wife owed DeCort $158,252.51 plus interest and that she owed Stahl $13,596.34. Counsel for De-Cort and Stahl testified further that the Former Wife had not made any payments since October 2008 and that she had not made any arrangement to pay the monies due. In addition, counsel testified that the Former Wife had never discussed the joint stipulation with DeCort. Counsel concluded that the Former Wife had entered into the joint stipulation to allow the Former Husband to avoid payment of the money judgment, knowing that she did not have the financial ability to pay the monies owed to her former attorneys and to Stahl.

The Former Wife testified at the hearing that she did not know the Former Husband’s whereabouts. She acknowledged that when she entered into the joint stipulation she did not have the ability to pay the fees due her attorneys and Stahl. The Former Wife also conceded that “[ojther than dropping the appeal” and offering “to start paying the child support on a regular basis” — which had previously been ordered — the Former Husband offered her nothing in exchange for the stipulated satisfaction of judgment. The Former Wife explained that she signed the joint stipulation based on her belief that the Former Husband would prevail on his appeal and then she would be required to return to him at least as much as the amount of the money judgment for fees. “And therefore, in saving some money for [herjself, [she] decided to go ahead and agree that the money judgment was paid in full.”

II. THE CIRCUIT COURT’S RULING

At the conclusion of the hearing, the circuit court stated:

Okay. All right. Well, it sounds like you may have been taken advantage of, but it doesn’t sound like that amounts necessarily — it certainly — it’s not necessary, I don’t think, counsel, to set aside the satisfaction of that Judgment because I can issue another Judgment in the names of the attorneys and then it has to be enforced if you find him, or if you can find his assets.

In its written order, the circuit court granted DeCort’s motion to set aside the joint stipulation for satisfaction of money judgment, stating that “[t]o the extent that monies from the Money Judgment entered December 30, 2008, were owed to third parties, such as Mr. DeCort or Mr. Stahl, the Former Wife and the Former Husband’s attempt to eliminate the previous judgment entered by this Court can be inferred to be collusive and fraudulent.” Citing to section 61.16(1), Florida Statutes (2008), the circuit court awarded DeCort a judgment against the Former Husband for $158,252.51, plus interest. The circuit court also awarded Stahl a judgment against the Former Husband for $13,596.84, plus interest. The Former Husband’s appeal followed.

III. DISCUSSION

On appeal, the Former Husband makes four arguments. Based on our disposition of the case, the Former Husband’s third argument is moot. The fourth argument is without merit and does not warrant discussion. The Former Husband’s first and second arguments are interrelated, and we consider them together.

As the Former Husband correctly points out, a satisfaction of judgment generally operates as “a complete bar to any effort to alter or amend the final judgment.” Progressive Plumbing, Inc. v. Dixie Constr. Prods., 912 So.2d 646, 647 (Fla. 5th DCA 2005). “A satisfaction signifies that the litigation is over, the dispute is settled, the account is paid.” Morris N. Am., Inc. v. King, 430 So.2d 592, 592 (Fla. 4th DCA 1983).

However, a satisfaction of judgment is not immune from attack, and if it is shown to be invalid, it may be set aside. Id. at 593. “The appropriate method to attack the validity of a satisfaction is by motion pursuant to Rule 1.540(b), Fla. R. Civ. P., in the original action or by an independent action brought specifically for that purpose in the court which entered the judgment.” Id.; see also Progressive Plumbing, 912 So.2d at 647-48 (noting that “if shown to be invalid, a satisfaction may be set aside” and that “[e]very court of law possesses inherent equitable power sufficient to control its own judgments,” including the “power to set aside a satisfaction of one of its own judgments”).

Thus the circuit court had the authority and the inherent jurisdiction to set aside the joint stipulation for satisfaction of judgment upon the filing of an appropriate motion by a proper party and the presentation of proof that the satisfaction was fraudulent and invalid. Nevertheless, the dispositive factor in this case is the Former Wife’s status as the holder of the money judgment. To be sure, section 61.16(1) gives the circuit court the option of making an award of attorney’s fees and costs to a party or directly to the party’s attorney:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.... In all cases, the court may order that the amount be paid directly to the attorney, who may enforce the order in that attorney’s name.

(Emphasis added.) Here, the money judgment provided for an award of attorney’s fees and costs to the Former Wife, not directly to her attorneys. Thus DeCort, despite its prior representation of the Former Wife, had no interest in the money judgment.

The decision in Lapidus v. Weil, 672 So.2d 58 (Fla. 4th DCA 1996), provides an instructive contrast with the facts of this case. In Lapidus, an attorney defended the former wife in a petition for modification of a final judgment brought by the former husband. Id. at 59. At the conclusion of the modification proceedings, the trial court made a direct award of fees to the attorney for $18,993.25. Id. Later, the former wife executed a satisfaction of judgment in favor of the former husband for the fee award. Id. The attorney moved to vacate the satisfaction of judgment, and the trial court denied her motion. Id.

On appeal, the Fourth District reversed the trial court’s denial of the attorney’s motion to vacate the satisfaction of judgment. Id. The Fourth District explained that “[a]n award which orders payment directly to an attorney is personal and cannot be voided without the attorney’s consent” and “that awards granted directly to the attorney are personal and survive any reconciliation and dismissal between the parties.” Id. Thus, because the fee award in Lapidus was made payable directly to the attorney, the Fourth District concluded that the attorney’s personal right to enforce the fee award survived any settlement between the parties. The former wife in Lapidus could not void that right by executing the satisfaction of judgment. Id.

In this case, unlike in Lapidus, the circuit court did not award the fees for De-Cort and Stahl directly to them. The circuit court made its money judgment for fees and costs in favor of the Former Wife. Moreover, neither DeCort nor Stahl were parties to the underlying litigation. Despite these facts, the circuit court relied on section 61.16(1) as its authority to grant DeCort’s motion to set aside the satisfaction of judgment and to enter an order redirecting the fees and costs to DeCort and to Stahl.

The circuit court erred in relying on section 61.16(1) in support of the order under review. Section 61.16(1) does not give an attorney an independent right to seek a fee award for services rendered in a case under chapter 61. Furthermore, absent an order directing payment of a fee award to the attorney, the attorney does not have standing to enforce the award.

In Florida Bar v. W.H.P., 384 So.2d 28, 30 (Fla.1980), the Supreme Court of Florida held that section 61.16 “does give an attorney a personal (in his own name) enforceable action for fees, but only after a court has entered a discretionary order which directs payment directly to the attorney.” (Emphasis added.) Similarly, in MacLeod v. Hoff, 654 So.2d 1250, 1252 (Fla. 2d DCA 1995), this court noted:

[Ujnder section 61.16, ... attorneys have no standing to apply for awards of fees in their own names. Instead, section 61.16 provides only that an attorney may enforce, in his own name, an award of fees to a party — made, of course, upon that party’s proper motion — where the trial court has entered a discretionary order indicating that payment of fees is to be made directly to the attorney.

(Citations omitted.) Thus attorneys do not have standing to seek an award of fees in their own names and may only enforce a fee award in their own names when the trial court has entered an order stating that payment should be made directly to the attorney.

Here, the order awarding attorney’s fees and costs to the Former Wife did not direct payment to DeCort and Stahl. The subsequent money judgment against the Former Husband for the Former Wife’s attorney’s fees and costs was in favor of the Former Wife, not DeCort and Stahl. It follows that DeCort and Stahl lacked standing to enforce the money judgment by seeking to set aside the joint stipulation for satisfaction of judgment. In addition, the circuit court erred in entering what amounted to an order amending the Former Wife’s final judgment for attorney’s fees several months after the judgment became final by redirecting payment of the award—in part — to DeCort and Stahl. See Fla. R. Civ. P. 1.530(d); Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1, 3-4 (Fla.1970); Padot v. Padot, 891 So.2d 1079, 1084-85 (Fla. 2d DCA 2004); Malone v. Percival, 875 So.2d 1286, 1288 (Fla. 2d DCA 2004); King v. State, 870 So.2d 69, 70 (Fla. 2d DCA 2003).

IV. CONCLUSION

Like the circuit court, we deplore the collusive effort by the Former Husband and the Former Wife to deprive the Former Wife’s attorneys and expert witness of their fees and costs for the services they rendered on her behalf. Nevertheless, we can find no basis in the record upon which to affirm; accordingly, we reverse the circuit court’s order. The result in this case — considered together with the different outcome in Lapidus — illustrates the importance of making the award of fees and costs in a case under chapter 61 directly to the party’s attorney under circumstances where the party has not already paid the attorney in full for his or her services.

Reversed.

NORTHCUTT and KELLY, JJ., Concur.

      . DeCort had apparently paid some of Stahl’s invoices.

      . Although the Former Wife did not join in the appeal, she filed a brief adopting the Former Husband's arguments.

      . A satisfaction of a judgment for less than full consideration might constitute a fraudulent transfer voidable by other creditors under the Uniform Fraudulent Transfer Act, sections 726.101-.201, Florida Statutes (2010). See Nissim Hadjes, Inc. v. Hasner, 408 So.2d 819, 821 (Fla. 3d DCA 1982). However, the question of whether DeCort and Stahl are entitled to such relief under the Act is not before us, and we express no opinion on this issue.


author: SILBERMAN, Chief Judge.

text:
    John Fitzgerald KEPFORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3804.
    District Court of Appeal of Florida, Second District.
    July 1, 2011.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

John Fitzgerald Kepford appeals his convictions and sentences for felony battery, domestic battery by strangulation, false imprisonment, and grand theft. Kep-ford filed a pro se motion to withdraw his plea after sentencing, and he contends on appeal that the trial court should have appointed conflict-free counsel to represent him at the hearing on his motion to withdraw plea. We reverse the denial of the motion and remand for the appointment of conflict-free counsel.

The State contends that this court should dismiss the appeal as one from a nonfinal order because the trial court denied Kepford’s motion without prejudice, stating that it would review the transcript of the plea hearing if Kepford filed the transcript. This court has already denied the State’s motion to dismiss in which it asserted this argument. Kepford contends that the issue he is raising on appeal is not whether the trial court erred in denying the motion to withdraw plea. Rather, he contends that the issue is whether the trial court erred in holding a hearing and provisionally denying the motion to withdraw plea without appointing conflict-free counsel to represent him. We also point out that this court has jurisdiction of this appeal from Kepford’s convictions and sentences. See Kegler v. State, 46 So.3d 1061, 1061 (Fla. 2d DCA 2010) (recognizing that the challenge to the denial of a motion to withdraw plea after sentencing is by appeal of the judgment and sentence); Clemons v. State, 3 So.3d 364, 365-66 (Fla. 2d DCA 2009) (stating that a timely motion to withdraw plea delays the rendition of the judgment and sentence until a signed, written order is filed that disposes of the motion). Kepford’s notice of appeal was timely filed within thirty days of rendition of Kepford’s judgment and sentence.

Kepford entered into a negotiated plea and was sentenced to concurrent terms of five years’ probation in accordance with his plea agreement. As part of the negotiations, a sexual battery charge was reduced to felony battery. At the change of plea hearing, Kepford indicated that he was not under the influence of any alcohol or drugs by responding “no” to the trial court’s question. When the court asked if there was any DNA evidence that would exonerate Kepford, defense counsel interjected. Although the exchange is somewhat unclear, counsel indicated that there was no DNA evidence that would exonerate Kep-ford on the modified charges to which Kepford was entering the plea. Kepford did not speak at all on this subject.

In his pro se motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(£), Kepford essentially alleged that his plea was involuntary. He alleged that he had been hospitalized for a stroke one week before trial, that he was under the influence of “judgment altering steroids,” and that he was not thinking clearly and was given no time to do so. He further alleged that he “was not informed of what the whole plea was about.” Kepford also asserted that DNA evidence proved that “there was no rape.”

The trial court conducted a hearing on the motion on August 12, 2009, at which Kepford appeared pro se. The trial court told Kepford that during a change of plea the court usually asked questions regarding drug or alcohol use and whether the defendant understood the rights being waived. Kepford acknowledged that the court asked these questions of him. However, Kepford asserted that his attorney told him not to answer any questions until counsel told him to answer. Kepford stated that counsel told him to just answer yes or no and that counsel knew that Kepford was on steroids. In fact, the plea form states that the defendant is “not under the influence of alcohol, drugs or medicine at the present time except for_” Handwritten in the blank is the word “steroids.”

Kepford further stated at the hearing on his motion to withdraw plea that counsel spoke to him for less than five minutes and told him to take the plea. He added that when he had been in counsel’s office, he had seen a DNA report in his file showing that it was someone else’s DNA. Kepford claimed he was not informed of the DNA report. He alleged that when asked at the change of plea hearing, counsel told him to say that there was no DNA evidence that could exonerate him.

The trial court stated that Kepford did not inform the court at the plea hearing that counsel had told Kepford to say “no.” The trial court denied the motion without prejudice, stating that if Kepford filed the transcript of the change of plea hearing the court would review it. The trial judge stated that if “the transcript reflects that we didn’t go over this in the kind of detail that’s necessary to be able to ensure that you understood what you were doing and that it was a knowing voluntary change of plea, then, yes, I’ll grant your motion.” Later the trial judge stated, “[I]f I didn’t go over in that transcript all the things that I should have gone over, you might be entitled to withdraw your plea, but today it’s denied.” The written order stated that the motion was denied “at this time.”

At no time during the hearing on Kepford’s motion to withdraw plea did the trial court address the issue of providing counsel for Kepford. “A motion to withdraw plea is a critical stage of the proceedings at which a defendant is entitled to be present and to have counsel represent him.” Krautheim v. State, 38 So.3d 802, 804 (Fla. 2d DCA 2010). Furthermore, “once it becomes clear that a defendant and his counsel are in an adversarial relationship with respect to the defendant’s entry of his plea, the defendant is entitled to the appointment of conflict-free counsel to represent him and to assist him with respect to his motion to withdraw plea.” Id. at 805.

Under Sheppard v. State, 17 So.3d 275, 287 (Fla.2009), the trial court should not strike a pro se motion to withdraw plea as a nullity if the motion is “based on allegations giving rise to an adversarial relationship such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea.” Instead, the trial court should hold a limited hearing to determine if an adversarial relationship exists between counsel and the defendant. Id. If there is an adversarial relationship and the record does not conclusively refute the allegations, then “the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.” Id.

Here, Kepford’s pro se motion does not expressly state an adversarial relationship but only that he “was not informed of what the whole plea was about.” However, the trial court held a brief hearing on the motion. At this hearing Kepford appeared pro se, and the record does not reflect any discharge of his trial counsel. As discussed above, in support of his allegation that he did not understand what he was doing when he entered his plea, Kep-ford essentially stated to the trial court that counsel told him to lie about whether he was under the influence of drugs and that counsel failed to explain the DNA evidence to him. The record does not refute these allegations.

This court has recently determined that “a defendant should be estopped to receive an evidentiary hearing on a postconviction claim when the basis of the claim is that he lied under oath at the relevant hearing.” Polk v. State, 56 So.3d 804, 808 (Fla. 2d DCA 2011). In Polk this court certified the question to the Florida Supreme Court. Id. Polk essentially claimed that his counsel instructed him to lie during the plea colloquy and say that he had not been promised anything about the length of his sentence; however, Polk claimed his counsel had promised that he would not get more than twenty years. Id. at 806. This court affirmed the summary denial of the claim. Id. at 804.

Here, Kepford essentially contends that his counsel instructed him to lie at the plea colloquy about his use of alcohol or drugs. Kepford also contends that counsel instructed him to say there was no DNA evidence to exonerate him. However, Kepford answered no questions about DNA evidence at the plea hearing; rather, counsel interjected that there was no DNA evidence to exonerate Kepford on the charges to which Kepford was entering a plea. In his motion, Kepford alleged that there was DNA evidence “to prove there was no rape,” apparently relevant to the original charge of sexual battery. He claimed that he was not fully informed by trial counsel regarding the plea. At the hearing on the motion, Kepford stated that counsel failed to inform him about the DNA evidence, spent only five minutes with him, and told him to take the plea. Thus, in this case, unlike Polk, in addition to claiming that counsel told him to lie, Kepford alleges that counsel failed to inform him about DNA evidence and explain the plea sufficiently. Therefore, Polk is distinguishable from the present case.

In summary, we conclude that the trial court should not have conducted a hearing without counsel to represent Kepford. See Krautheim, 38 So.3d at 805. Furthermore, Kepford’s allegations in the written motion combined with his allegations at the hearing demonstrated an adversarial relationship between Kepford and counsel. See Kegler, 46 So.3d at 1063 (determining that the allegation in the pro se motion to withdraw plea combined with the defendant’s assertions at the hearing demonstrated the adversarial nature of the relationship between the defendant and counsel). Therefore, we reverse the denial of the motion to withdraw plea and remand for the trial court to allow Kepford to present his motion with the assistance of conflict-free counsel, including the opportunity for counsel to file an amended motion on Kepford’s behalf. See id.

Reversed and remanded.

CASANUEVA and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    Brandon KOVARICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-217.
    District Court of Appeal of Florida, Second District.
    July 6, 2011.
    Bernard F. Daley, Jr., of The Daley Law Office, P.A., Tallahassee, for Appellant.
   PER CURIAM.

We reverse the denial of Brandon Ko-varick’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 because the postconviction court erred when it denied the motion as untimely.

The file-stamp by the clerk of the circuit court shows that on October 18, 2010, Kovarick, through counsel, filed the current motion raising three claims of relief. The postconviction court correctly noted that because Kovarick is represented by counsel, he is not entitled to the benefit of the mailbox rule and the file-stamp controls. See Davis v. State, 56 So.3d 860, 861 (Fla. 1st DCA 2011); see also Joseph v. State, 835 So.2d 1221, 1222 n. 2 (Fla. 5th DCA 2003). However, October 16, 2010 — two years after the judgment and sentence became final — fell on a Saturday. Therefore, the period for filing a timely postconviction motion was extended to October 18, 2010, and Kovarick’s motion was timely. See Fla. R.Crim. P. 3.040 (stating that the period for computation of time “shall run until the end of the next day that is neither a Saturday, Sunday, nor legal holiday”); Fla. R.App. P. 9.420(f) (same). The motion, however, fails to contain a properly executed oath and is facially insufficient. See Fla. R.Crim. P. 3.850(c), 3.987.

Accordingly, we reverse and remand for the postconviction court to provide Kovar-ick thirty days from the date this opinion is filed to amend the motion by including a proper oath. If he fails to file a timely amendment, the postconviction court may enter a final order dismissing the motion. However, if Kovarick properly amends, the postconviction court shall consider the motion on the merits.

Reversed and remanded.

WHATLEY, NORTHCUTT, and CRENSHAW, JJ., Concur.


author: MORRIS, Judge.

text:
    Norise ANDREW, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-878.
    District Court of Appeal of Florida, Second District.
    July 6, 2011.
    Norise Andrew, pro se.
   MORRIS, Judge.

Norise Andrew appeals from an order of the postconviction court denying his “express and specific demand for performance.” In his motion, Andrew asked the postconviction court to rule on a motion for postconviction relief that he delivered into the hands of corrections officials on September 13, 2008. Andrew filed the September 2008 motion after the postconviction court dismissed his first motion as facially insufficient, without prejudice for Andrew to file a timely and facially sufficient motion. However, the judge ordering the August 2008 dismissal of the first motion erroneously advised Andrew that he had thirty days to appeal, so Andrew filed a notice of appeal — on September 13, 2008, the same date on which he filed his new motion for postconviction relief attempting to cure the facial insufficiency. The postconviction court struck the September 2008 motion for lack of jurisdiction because it could not rule on it while Andrew’s appeal, case number 2D08-4709, was pending.

During the course of the appellate proceedings, Andrew attempted to return jurisdiction to the circuit court to get a ruling on the merits of his September 2008 motion by filing a motion to relinquish jurisdiction and a notice of voluntary dismissal in this court. Rather than grant the motion to relinquish jurisdiction or accept the notice of voluntary dismissal, however, this court issued a per curiam affir-mance. The mandate in case number 2D08^4709 issued on June 2,2009.

Some eighteen months later, in January 2011, Andrew filed the pleading titled “express and specific demand for performance” requesting that the postconviction court rule on his September 2008 motion for postconviction relief. The postconviction court denied the demand for specific performance as moot because the court had already struck the motion for lack of jurisdiction.

Technically, the postconviction court’s order is correct. The court had indeed ruled on the September 2008 motion by striking it. Not only that, but the court had also advised Andrew that he had a right to refile his motion once the mandate issued in case number 2D08-4709, but Andrew never actually did so. Meanwhile, in this court, Andrew somewhat persistently attempted to have jurisdiction returned to the circuit court, apparently incorrectly assuming that the September 2008 motion was simply lying dormant until that event occurred. And admittedly, the more appropriate action in this court would have been to dismiss case number 2D08-4709 or to relinquish jurisdiction to the postconviction court as Andrew requested because the August 2008 order was a nonfinal order that afforded Andrew an opportunity to cure deficiencies in his motion before a final order on the merits was issued. See, e.g., Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010); Christner v. State, 984 So.2d 561, 562 (Fla. 2d DCA 2008).

Accordingly, we affirm the postconviction court’s order denying Andrew’s “express and specific demand for performance.” However, given the procedural anomalies of this unusual case, this affir-mance is without prejudice to Andrew’s filing of a motion for postconviction relief-limited to the grounds raised in the September 2008 motion — within sixty days of the date that this opinion becomes final.

Affirmed.

LaROSE and BLACK, JJ., Concur.


text:
    Sasha KAMINIK and Paul Connolly, Appellants, v. COUNTRYWIDE HOME LOANS, INC., and Sequoia Gardens Condominium Association, Inc., Appellees.
    No. 4D09-4861.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.

      Enrique Nieves and Thomas E. Ice of Ice Legal, P.A., West Palm Beach, for appellants.
    Thomasina F. Moore and Dennis W. Moore of Butler & Hosch, P.A., Orlando, for appellees.
   PER CURIAM.

We affirm in part the summary final judgment of foreclosure. The record demonstrates that appellee tendered the original promissory note to the trial court, which contained a special indorsement in its favor. See Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1106-07 (Fla. 4th DCA 2010); Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010); Jacobs v. Becks, 355 So.2d 1241, 1242 (Fla. 1st DCA 1978). As to the defense of unclean hands, no fact in the record and nothing in the briefing supports that defense. See Tacher v. Helm Bank, 50 So.3d 1239 (Fla. 4th DCA 2011); S. Waste Sys., LLC v. J & A Transfer, Inc., 879 So.2d 86, 87 (Fla. 4th DCA 2004). We reverse the award of $4,685.50 in attorney’s fees because appellee’s affidavit stated that $887 was a reasonable fee, creating an issue of fact as to the amount to be awarded. We also reverse the award of $14,120.08 in interest, which was greater than the $5,897.20 specified in the affidavit of indebtedness; the interest rate was variable, and the variation was a matter of proof.

Affirmed in part, reversed in part, and remanded.

STEVENSON, GROSS and GERBER, JJ., concur.


text:
    Kenneth R. FRITZ, Appellant, v. CITY OF PEMBROKE PINES, Appellee.
    No. 4D09-5176.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    John F. Eversole, III, and Valentina M. Tejera of Mase, Lara, Eversole, P.A., Miami, for appellant.
    Michael D. Chullo, Jr., of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

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

MAY, C.J., WARNER, J„ and MONACO, TOBY S., Associate Judge, concur.


text:
    William L. LENEVE, Appellant, v. Tamela LENEVE, n/k/a Tamela Chappell, Appellee.
    No. 4D11-949.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.

      Richard G. Lubin of Lubin and Metz, P.A., West Palm Beach, for appellant.
    Andrew Pastor, Palm Beach Gardens, for appellee.
   PER CURIAM.

In this court, William L. Leneve, the former husband, seeks review of a trial court order that denied his motion to dismiss the former wife’s motion invoking the Keeping Children Safe Act, section 39.0139, Florida Statutes (2009). Although the former husband originally styled his case as a petition for writ of certiorari, we redesignated the case as an appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) because it concerns child custody/visitation. See Drago v. Drago, 895 So.2d 529 (Fla. 4th DCA 2005). The former wife failed to file an answer brief as ordered by this court. We reverse.

Below, the former wife moved to invoke the Keeping Children Safe Act. She intended to use the Act in an upcoming hearing on her motion to modify the final judgment of dissolution of marriage. The former husband, who was awarded shared parental responsibility and shared custody in the final judgment, has been denied any contact with his teenage sons under the auspices of the Act. As noted, the trial court denied the former husband’s motion to dismiss the former wife’s motion.

Initially, we note that the Keeping Children Safe Act does not apply outside the context of a Chapter 39 child dependency proceeding. See Mahmood v. Mahmood, 15 So.3d 1, 4 (Fla. 4th DCA 2009). Accordingly, the Act could not and does not apply to this Chapter 61 proceeding.

The law also contains deficiencies that led one circuit court to find portions of the Act unconstitutional. In re: Potts, No. 07-00742DPAWS (Fla. 6th Cir. (Pasco Co.) 2007). Similarly, in Mahmood this court noted concerns that an anonymous report to an abuse hotline automatically triggered the “presumption of detriment” under the Act. 15 So.3d at 4, n. 1 (citing Sue Robbins, Florida Statute § 39.0139: Limiting the Risk of Serious Harm to Children, 82 Fla. B.J. 45 (May 2008)). New legislation was recently enacted which would address these issues and require a circuit court to find probable cause to support the allegations of abuse before the procedures of the Act are triggered. See Fla. CS for SB 504 (2011) (proposed amendment to section 39.0189, Florida Statutes).

The allegations of sexual abuse in this case were raised as the former husband neared the completion of his three-year federal sentence for bankruptcy fraud and after the wife had denied him phone contact with the children for more than two years. Police and the Department of Children and Families investigated the allegations and found them unfounded. The Department found the allegations “highly suspicious” and a police report indicated it was “quite obvious” that the boys had been coached.

We reverse the order on appeal. The trial court shall strike the former wife’s motion invoking the Act in the proceedings to modify the final judgment of dissolution in this case.

GROSS, HAZOURI and CIKLIN, JJ., concur.


text:
    Carl E. WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2712.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    Carl E. Watts, Bonifay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Carl E. Watts challenges the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of Watts’s challenges to his plea. However, as the state recognized in its response filed in the trial court, the Criminal Punishment Code scoresheet used to sentence Watts is incorrect, and a hearing is necessary to determine whether the court would have imposed the same sentence, absent the scoresheet error. Accordingly, we reverse and remand for the preparation of a corrected scoresheet and for resentencing. See Brooks v. State, 969 So.2d 238 (Fla.2007).

Reversed and remanded for preparation of a corrected scoresheet and for resentenc-ing.

MAY, C.J., HAZOURI and LEVINE, JJ., concur.


text:
    Vrege ARMOYAN, Petitioner, v. Lisa ARMOYAN, Respondent.
    No. 4D11-5.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.

      Jane Kreusler-Walsh and Stephanie L. Serafín of Kreusler-Walsh, Compani & Vargas, P.A., West Palm Beach, and Melinda Penney Gamot of The Gamot Law Firm, P.L., Palm Beach, Gardens, for petitioner.
    Kristen Ann Terry and Joel M. Weiss-man of Joel M. Weissman, P.A., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of certiorari is granted and the trial court’s December 15, 2010 order is quashed. The trial court departed from the essential requirements of law when it ruled that the crime-fraud exception applied to husband’s claim of privilege without holding an evidentiary hearing at which husband was permitted to testify. Butler, Pappas, Weihmuller, Katz, Craig, LLP v. Coral Reef of Key Biscayne Developers, Inc., 873 So.2d 339, 342 (Fla. 3d DCA 2003). See also Walanpatrias Found, v. AMP Servs., Ltd., 964 So.2d 903, 905 (Fla. 4th DCA 2007); IDS Long Distance, Inc. v. Heiffer, 837 So.2d 1130, 1131 (Fla. 4th DCA 2003); Am. Tobacco Co. v. State, 697 So.2d 1249, 1255 (Fla. 4th DCA 1997). This matter is remanded for the trial court to allow the husband to testify and present evidence in response to the allegations of fraud.

GROSS, CIKLIN and LEVINE, JJ., concur.


text:
    J.F., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D11-249.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    Patricia A. Gainer-Gaddis of Law Offices of Patricia A. Gainer-Gaddis, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

The trial court’s order adjudicating the minor child dependent as to the father is affirmed. The court found that the father had neglected the child through domestic violence. The father has not provided that portion of the trial transcript at which the issue of domestic violence was litigated. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). He contends nevertheless that the order itself shows that the court erred. According to the order, several incidences of domestic violence between the mother and father occurred in the presence of the child, which can constitute evidence of neglect. See C.J. v. Dep’t of Children & Families, 968 So.2d 121, 123-24 (Fla. 4th DCA 2007).

We affirm as to this and all other issues raised.

MAY, C.J., WARNER and POLEN, JJ., concur.


author: KHOUZAM, Judge.

text:
    Terry GILMORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-713.
    District Court of Appeal of Florida, Second District.
    July 8, 2011.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Terry Gilmore appeals after being re-sentenced to the same upward departure sentence he originally received in 1984— life in prison for five armed robbery convictions. We reverse and remand for the trial court to resentence Gilmore within the 1988 sentencing guidelines using a corrected scoresheet.

On December 11, 1984, a jury found Gilmore and his codefendant, Lawrence Logan, guilty on five counts of armed robbery. The offenses occurred on March 17, 1984. Gilmore and Logan were both given upward departure sentences of life in prison on December 11, 1984. This court affirmed Gilmore’s sentences on direct appeal. Gilmore v. State, 482 So.2d 353 (Fla. 2d DCA 1986) (table decision). On November 26, 2008, Gilmore filed a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The trial court granted the motion on April 7, 2009, and ordered a resentencing pursuant to the 1983 guidelines. On January 14, 2010, the trial court again sentenced Gilmore to the upward departure sentences of life in prison, adopting the findings of the original sentencing judge. Gilmore’s scoresheet also included 21 victim injury points.

Gilmore argues that the trial court abused its discretion in imposing the upward departure sentence based on the exact same reasons cited by the trial judge in 1984. He claims that the departure reasons given by the judge at resentencing were based on facts neither admitted by Gilmore nor found by a jury and are therefore improper under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He also contends that all of the reasons for departure have been declared invalid since his original sentencing. Finally, he points out that the guidelines in effect at the time of his offense only allow for victim injury points if victim injury was an element of the crime. He concludes that upon remand he should be resentenced within the guidelines with a corrected scoresheet.

The State concedes that this case must be reversed but argues that it should be remanded for the trial court to complete a harmless error analysis. The State acknowledges that Apprendi and Blakely apply to Gilmore’s sentence and that all but one of the grounds for departure are invalid. But the State argues that one of the reasons for departure — use of excessive force — could be valid and thus the error could be harmless.

The parties are correct that Apprendi and Blakely apply to Gilmore’s resentencing. See State v. Fleming, 61 So.3d 399, 402 (Fla.2011) (“[Bjecause re-sentencing proceedings are de novo in nature, Apprendi and Blakely necessarily apply to resentencings held after Apprendi and Blakely issued, even where the conviction was final before they issued.”). So it was improper for the original sentencing judge in this case to impose a departure sentence based on his own factual findings — other than the fact of a prior conviction — instead of factual findings made by the jury or facts admitted by Gilmore. See id.; Galindez v. State, 955 So.2d 517, 519 (Fla.2007).

Although excessive force used during an armed robbery may be a valid reason for imposing an upward departure sentence, see Perez v. State, 604 So.2d 916 (Fla. 3d DCA 1992), the sentencing judge did not cite excessive force as a ground for departure in this case. And the State has properly conceded that subsequent to Gilmore’s original sentencing the rest of the grounds for departure have been found invalid as a matter of law. Because the sentencing judge did not cite any possibly valid grounds for departure, applying a harmless error analysis would not be appropriate here. See Galindez, 955 So.2d at 521.

The victim injury points on the scoresheet are also invalid. The record does not show that the victims were injured. Even “[i]f there had been victim injury, it would not have been scored because the guidelines in effect at the time of petitioner’s sentencing allowed scoring for victim injury only if it was an element of the crime for which the defendant was convicted, see Fla. R. Crim. P. 3.701(d)(7) (1985), and injury is not an element of the crime of robbery.” Mathis v. State, 515 So.2d 214, 217 n. 2 (Fla.1987). See also Fla. R.Crim. P. re Sentencing Guidelines (R. 3.701 & 3.988), 509 So.2d 1088, 1089 (Fla.1987).

The resentencing court’s reasons for imposing a departure sentence were improper under Apprendi and Blakely as well as being otherwise invalid. Gilmore’s score-sheet should also be corrected to remove the victim injury points. Therefore, we are compelled to reverse and remand for resentencing within the 1983 sentencing guidelines using a corrected scoresheet.

Reversed and remanded with instructions.

CASANUEVA and VILLANTI, JJ., Concur.


text:
    In re Erika Thomas HYDE.
    No. 2011-OB-0699.
    Supreme Court of Louisiana.
    April 8, 2011.
   ORDER

1, Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Erika Thomas Hyde, Louisiana Bar Roll number 29734, be and she hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as she resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Marcus R. Clark /s/ JUSTICE, SUPREME COURT OF LOUISIANA


text:
    In re Walter W. GERHARDT.
    No. 2011-B-0687.
    Supreme Court of Louisiana.
    April 29, 2011.
   PER CURIAM.

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

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Walter W. Gerhardt, Louisiana Bar Roll number 20827, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    State ex rel. Stuart BROOKS v. STATE of Louisiana.
    No. 2010-OK-1161.
    Supreme Court of Louisiana.
    May 27, 2011.
   In re Brooks, Stuart; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. B, No. 97-2465; to the Court of Appeal, Third Circuit, No. KH 09-01416.

Denied.


text:
    STATE of Louisiana v. Terry LANE.
    No. 2011-KD-1279.
    Supreme Court of Louisiana.
    June 20, 2011.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 502-014; to the Court of Appeal, Fourth Circuit, No. 2011-K-0806.

Denied.

CLARK, J., would deny on showing made.


text:
    STATE of Louisiana v. Joseph TAYLOR.
    No. 2011-KK-1287.
    Supreme Court of Louisiana.
    June 21, 2011.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 488-474; to’ the Court of Appeal, Fourth Circuit, No. 2011-K-0809.

Denied on showing made.

GUIDRY, J., to grant.


text:
    Patsy SLOAN v. Albert SAM and State Farm Mutual Automobile Insurance Company.
    No. 2011-CC-1238.
    Supreme Court of Louisiana.
    June 21, 2011.
   In re State Farm Mutual Automobile Insurance Company; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 584,649; to the Court of Appeal, First Circuit, No. 2011 CW 0702.

Stay denied. Writ denied.

CLARK, J., would grant the writ application and reverse the trial court’s ruling.


text:
    STATE of Louisiana v. Loel McNAIR.
    No. 2011-KK-1285.
    Supreme Court of Louisiana.
    June 21, 2011.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 488-598; to the Court of Appeal, Fourth Circuit, No. 2011-K-0781.

Writ granted. Reversed and remanded. Article 1, Section 17(A) of the Louisiana Constitution of 1974 provides that a defendant may waive his right to a trial by jury “but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.” The trial judge erred in allowing the defendant to revoke his valid waiver of his right to trial by jury because the waiver can be made by defense counsel in the defendant’s presence in open court. State v. Phillips, 365 So.2d 1304 (La.1978); State v. Kahey, 436 So.2d 475 (La.1983). The ruling of the trial court is reversed. The case is remanded to the trial court for further proceedings.

JOHNSON, J., would deny the writ.


text:
    DAZET MORTGAGE SOLUTIONS LLC, Chou Cou LLC, RC Holding LLC, Lillylyd LLC, Wabash Properties LLC, Belfast Properties, LLC, Denada Investments LLC, Riverbend LLC, LMMB LLC, Ng Investments LLC, Riverbend Capital LLC, Allstar RV Rentals LLC, and Michael Dazet v. Gregory G. FAIA, Faia & Associates, LLC, and Security Title of Louisiana.
    No. 2011-CC-1193.
    Supreme Court of Louisiana.
    June 22, 2011.
   In re Faia & Associates, LLC; Faia, Gregory G. et al.; Security Title of Louisiana; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Divs. J, M, Nos. 680-613,; to the Court of Appeal, Fifth Circuit, No. 11-C-334.

Stay denied; writ denied.


text:
    In re Elise Marybeth LaMARTINA.
    No. 2010-B-0093.
    Supreme Court of Louisiana.
    June 22, 2011.
   In re LaMartina, Elise Marybeth; — Plaintiff; Applying for Reconsideration of this Court’s order dated June 1, 2011; Office of Disciplinary Board No. 08-DB-011.

Reconsideration denied.


text:
    In re Jess WOOD.
    No. 2011-OB-1288.
    Supreme Court of Louisiana.
    June 22, 2011.
   In re Wood, Jess; —Plaintiff; Applying For Permission to Take Bar Examination

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

CLARK, J., would deny.


text:
    STATE ex rel. LAN TRAN v. STATE of Louisiana.
    No. 2010-KH-1078.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Tran, Lan; —Plaintiff; Applying for Reconsideration of this Court’s action dated May 6, 2011; Parish of Vermilion, 15th Judicial District Court Div. G, No. 01-37931; to the Court of Appeal, Third Circuit, No. KH 09-01431.

Reconsideration denied.


text:
    Carla BROUSSARD-SCHER v. Brian Christopher LEGENDRE, et al.
    No. 2011-CJ-1235.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Legendre, Brian Christopher et al.; Thomas, Tiffany R.; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. M, No. C-2009-0641; to the Court of Appeal, Third Circuit, No. 10-1164.

Not considered. Not timely filed. See Supreme Court Rule X, Section 5.


text:
    STATE ex rel. Wilfred GUY v. STATE of Louisiana.
    No. 2010-KH-1331.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Guy, Wilfred; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 306-419; to the Court of Appeal, Fourth Circuit, No. 2010-K-0595.

Writ granted in part; otherwise denied. The Orleans Parish Clerk of Court is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const. art. XII, Section 3; R.S. 44:31; R.S. 44:31.1; State ex rel. Barbee v. State, 10-0275 (La.2/4/11), 57 So.3d 318; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537. In all other respects, the application is denied.


text:
    STATE of Louisiana v. Terry LABEAU.
    No. 2011-KK-0733.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Labeau, Terry; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 10-4196; to the Court of Appeal, Fifth Circuit, No. 11-K-246.

Granted. Remanded to Court of Appeal for briefing, argument and opinion.


text:
    STATE ex rel. Wilton CARABY v. STATE of Louisiana.
    No. 2010-KH-1396.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Caraby, Wilton; — Plaintiff; Applying For Supervisory and/or Re medial Writs, Parish of Orleans, Criminal District Court Div. H, No. 450-882; to the Court of Appeal, Fourth Circuit, No. 2010-K-0560.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; see also State ex rel. Hall v. State, 99-0326 (La.9/24/99), 871 So.2d 1071.


text:
    STATE ex rel. Kerry ORGERON v. STATE of Louisiana.
    No. 2010-KH-1391.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Orgeron, Kerry; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 95-6403; to the Court of Appeal, Fifth Circuit, No. 08-WR-1038.

Denied.


text:
    STATE ex rel. Christopher HILL v. STATE of Louisiana.
    No. 2010-KH-1378.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Hill, Christopher; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 99-6339; to the Court of Appeal, Fifth Circuit, No. 2008-WR-1034.

Denied.


text:
    STATE ex rel. Arthur THOMAS v. STATE of Louisiana.
    No. 2010-KH-1353.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Thomas, Arthur; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 06-3650; to the Court of Appeal, Fifth Circuit, No. 10-KH-247.

Denied.

GUIDRY, J., recused.


text:
    STATE ex rel. Eneus M. PAYNE v. STATE of Louisiana.
    No. 2010-KH-1351.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Payne, Eneus M.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. H, No. 05-229209; to the Court of Appeal, Third Circuit, No. KH 10-00120.

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


text:
    STATE ex rel. Elston ROBINSON v. STATE of Louisiana.
    No. 2010-KH-1262.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Robinson, Elston; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 00-5108; to the Court of Appeal, Fifth Circuit, No. 08-WR-1045.

Denied.


text:
    Frank Bernard STEWART, III v. Rachel Tallis STEWART.
    No. 2011-CC-1121.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Stewart III, Frank Bernard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 2009-10821; to the Court of Appeal, First Circuit, No. 2011 CW 0539.

Stay denied. Writ denied.


text:
    Janice Losey JOHNSON v. LOUISIANA FARM BUREAU CASUALTY INSURANCE CO.
    No. 2011-C-0476.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Johnson, Janice Losey; —Plaintiff; Applying for Rehearing of this Court’s action dated May 6, 2011; Parish of Natchitoches, 10th Judicial District Court Div. A, No. 81560; to the Court of Appeal, Third Circuit, No. 10-979.

Rehearing denied.

KNOLL and WEIMER, JJ., would grant.


text:
    In re Leonard CARDENAS, III.
    No. 2011-B-0031.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Cardenas, III, Leonard; —Plaintiff; Applying for Rehearing of this Court’s order dated May 6, 2011; Office of Disciplinary Board No. 09-DB-032.

Rehearing denied.

KIMBALL, C.J., recused.


text:
    STATE ex. rel. Mark BALL v. STATE of Louisiana.
    No. 2010-KP-2105.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Ball, Mark; Plaintiff; Applying for Reconsideration of this Court’s action dated April 1, 2011; Parish of Jefferson, 24th Judicial District Court Div. D, No. 03-5008; to the Court of Appeal, Fifth Circuit, No. 09-WR-829.

Reconsideration denied.


text:
    STATE ex rel. Preston G. DEMOUCHET, Jr. v. STATE of Louisiana.
    No. 2010-KH-1450.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Demouchet Jr., Preston G.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, Nos. 89,969, 95-141810.

Denied.


text:
    STATE ex rel. Jimmy CHERAMIE v. STATE of Louisiana.
    No. 2010-KH-1445.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Cheramie, Jimmy; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. E, No. 433435; to the Court of Appeal, First Circuit, No. 2010 KW 0412.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Lloyd ADDISON v. STATE of Louisiana.
    No. 2010-KH-1422.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Addison, Lloyd; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 06-2416; to the Court of Appeal, Fifth Circuit, No. 10-KH-375.

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


text:
    STATE ex rel. Billy Frank JACKSON v. STATE of Louisiana.
    No. 2010-KH-1419.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Jackson, Billy Frank; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 20083-01; to the Court of Appeal, Third Circuit, No. KH 09-01414.

Denied.


text:
    STATE ex rel. Jovan BUTLER v. STATE of Louisiana.
    No. 2010-KH-1418.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Butler, Jovan; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 97-5552; to the Court of Appeal, Fifth Circuit, No. 01-KH-335.

Denied.


text:
    STATE ex rel. Chris PHILLIPS v. STATE of Louisiana.
    No. 2010-KH-1417.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Phillips, Chris; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 575,255; to the Court of Appeal, First Circuit, No. 2010 CW 0773.

Denied.


text:
    STATE ex rel. Eric SMITH v. STATE of Louisiana.
    No. 2010-KH-1414.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Smith, Eric; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 08-3872; to the Court of Appeal, Fifth Circuit, No. 09-KA-259.

Denied.


text:
    STATE ex rel. William THURMAN v. STATE of Louisiana.
    No. 2010-KH-1411.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Thurman, William; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 102053; to the Court of Appeal, First Circuit, No. 2009 KA 1627.

Denied.


text:
    STATE ex rel. Eric M. DENET v. STATE of Louisiana.
    No. 2010-KH-1402.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Denet, Eric M.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 96-3245; to the Court of Appeal, Fifth Circuit, No. 08-WR-1144.

Denied.


text:
    STATE ex rel. John R. THOMAS v. STATE of Louisiana.
    No. 2010-KH-1496.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Thomas, John R.; —Plaintiff; Applying For. Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 242,973; to the Court of Appeal, Second Circuit, No. 45,-215-KA.

Denied.


text:
    STATE ex rel. Donald Ray JOHNSON, Jr. v. STATE of Louisiana.
    No. 2010-KH-1494.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Johnson Jr., Donald Ray; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, Nos. 144811, 144812, 144813; to the Court of Appeal, Third Circuit, No. KH 09-01544.

Denied.


text:
    STATE ex rel. Jarvis WARREN v. STATE of Louisiana.
    No. 2010-KH-1489.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Warren, Jarvis; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div D, No. 153,168; to the Court of Appeal, Second Circuit, No. 45,-692-KH.

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


text:
    STATE ex rel. James ORMOND v. STATE of Louisiana.
    No. 2010-KH-1484.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Ormond, James; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Divs. H, I, C, J, Nos. 87-3293, 88-2563, 95-6288, 99-3292; to the Court of Appeal, Fifth Circuit, No. 08-WR-1216.

Denied.


text:
    STATE ex rel. Roosevelt DEDMOND v. STATE of Louisiana.
    No. 2010-KH-1482.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Dedmond, Roosevelt; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 392,840; to the Court of Appeal, Fourth Circuit, No. 2010-K-0685.

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


text:
    STATE ex rel. Duane HENRY v. STATE of Louisiana.
    No. 2010-KH-1462.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Henry, Duane; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 365-337; to the Court of Appeal, Fourth Circuit, No. 2010-K-0639.

Denied.


text:
    STATE ex rel. Robert Lee POOLER v. STATE of Louisiana.
    No. 2010-KH-1461.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Pooler, Robert Lee; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. G, No. 10524; to the Court of Appeal, First Circuit, No. 2010 KW 0807.

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


text:
    Ricky CARTHAN v. Jimmy LeBLANC, Secretary Department of Corrections & Risk Review Panel.
    No. 2010-CI-1455.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Carthan, Ricky; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 565,108; to the Court of Appeal, First Circuit, No. 2009 CA 2100.

Denied.


text:
    Derrick DUNCAN v. James LeBLANC, Secretary Department of Correction & Risk Review Panel.
    No. 2010-CI-1454.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Duncan, Derrick; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 565,059; to the Court of Appeal, First Circuit, No. 2009 CA 2076.

Denied.


text:
    Freddie CANN v. James LeBLANC, Secretary, Louisiana Department of Public Safety & Corrections.
    No. 2010-CI-1452.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Cann, Freddie; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 578458; to the Court of Appeal, First Circuit, No. 2009 CA 2071.

Denied.


text:
    STATE of Louisiana v. Alex MEJIA.
    No. 2011-KP-0342.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Mejia, Alex; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 373-648; to the Court of Appeal, Fourth Circuit, No. 2010-K-1731.

Denied.


text:
    STATE of Louisiana v. Rodney MASON, Jr.
    No. 2011-K-0306.
    Supreme Court of Louisiana.
    June 24, 2011.
   In re Mason Jr., Rodney; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. C, No. 06-368; to the Court of Appeal, Fifth Circuit, No. 10-KA-284.

Denied.’