author: LAWSON, J.

text:
    STATE of Florida, Appellant, v. Gilbert DUDLEY, III, Appellee.
    No. 5D10-2863.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.
    Clyde M. Taylor, III, of Taylor & Taylor, PA, St. Augustine, for Appellee.
   LAWSON, J.

The State timely appeals a final order setting aside the jury’s guilty verdicts against Gilbert Dudley, III, and dismissing the charges against him. We reverse and remand with directions that the verdicts be reinstated and that the court proceed to sentencing. To the extent that this opinion is inconsistent with our prior panel decision in State v. Torresgrossa, 776 So.2d 1009 (Fla. 5th DCA 2001), we recede from Torresgrossa. We also certify conflict with the First District’s decision in Mathis v. State, 682 So.2d 175 (Fla. 1st DCA 1996).

The State charged Dudley with two counts of sexual battery on a mentally defective person. In count I, the State alleged that on or about March 21, 2008, the Defendant penetrated or had union with the victim’s vagina or anus. In count II, the State alleged that in 2007 the Defendant penetrated or had union with the victim’s vagina or mouth. Both counts alleged that the victim was mentally defective, and that Dudley had reason to believe or had actual knowledge that the victim was mentally defective. See § 794.011(4)(e), Fla. Stat. (2007).

After the jury returned guilty verdicts on both counts, the trial court set aside the verdicts and dismissed the charges, finding that the State’s evidence at trial was insufficient to support a jury finding that the victim was a “mentally defective” person as defined in section 794.011(4)(e), Florida Statutes. That statute defines “mentally defective” to mean “a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.” § 794.011(1)(b), Fla. Stat. (2007).

Contrary to the trial judge’s conclusion, the State’s evidence was clearly sufficient to support a jury finding that the victim was mentally defective, as defined by the statute.

First, the State presented testimony from the victim. It is clear from this testimony that the victim, who was twenty-one years old at the time of trial, has a mental and developmental age far below her physical age, and that her ability to appraise the nature of many things is severely limited. For example, the victim repeatedly referred to Dudley’s sexual organ as his “popsicle,” and testified to the times when Dudley put his “popsicle” inside her. She explained that she did not want to do this but that “he told me if I don’t do it, he was gonna punch me.” When asked why she did not immediately tell her mother about the incidents, she said that Dudley promised to take her to the park if she did not tell her mother. The victim’s word choices and phraseology throughout the testimony reflect the mental ability of a young child.

Second, the victim’s special education teacher, Ms. Hook, had worked with the victim for four or five years and also served as the victim’s Special Olympics coach. Ms. Hook testified that the victim was in a class for the mentally disabled who have IQs lower than seventy. Ms. Hook testified that her students, including the victim, need constant supervision as they are not capable of self-direction, and have significant cognitive limitations. Ms. Hook recounted specific instances of the victim’s limitations. For example, the victim does not understand the concept of differing valuations of money or the relative value of things. Ms. Hook explained that if the victim had a $5 bill, the victim could not understand why she could not use the bill to purchase a $13 CD. Similarly, Ms. Hook testified that the victim does not understand abstract concepts such as “in a little while” or “usual.” She further testified that the victim could not rationally process and express her emotions, but would simply cry or stomp her feet if she did not like something.

Third, the victim’s mother testified that her daughter has mild cerebral palsy, has been diagnosed with bi-polar disorder and was simply “not like everyone else.” She explained that if the victim were ill, she would not know to take medication even if a doctor had provided her with it; that she cannot cook because she could burn the house down; that if she observed someone ill and incapacitated, she would not know to call “911” or otherwise seek help, but would probably just watch the person lie there. The mother further described her daughter’s mind as “very childlike,” explaining that she does not know how to count money; does not understand the basics of personal hygiene; is afraid of the dark; and, cannot be left alone for any extended period of time because of her need for constant monitoring. She explained that the victim will never be able to drive due to her limited mental capacity, must generally be separated from other children due to the concern that they would pick on her or persuade her to do inappropriate things, and that she cannot take a bus by herself. According to her mother, the victim is able to do laundry for the family, but only after much assistance, and is able to keep her room clean but needs prompting. The victim likes to watch Disney videos; and, she likes to shop and dance. The victim’s room is decorated in a Tinkerbell theme. The victim has never had a paying job.

The mother put the victim on birth control in the form of Depo-Provera shots. The mother began taking the victim to get these shots after an incident with an emotionally handicapped young man which caused the mother to worry about her daughter being taken advantage of and getting pregnant. The victim has been committed to a mental institution four times.

Finally, the State presented the testimony of Dr. Malcolm J. Graham, III, a psychologist who does evaluations for a number of different governmental agencies and who has been qualified as an expert witness in court many times. He testified at length as to the victim’s mental limitations; opined that the victim is mentally retarded, in the moderate range; reported that the victim scored sixty-one on her verbal IQ scale, fifty on her performance IQ, and fifty-one on her full scale, putting her at less than one percentile. In other words, at least ninety-nine percent of the people who take the test scored at a higher intelligence level than the victim. Dr. Graham testified that the victim could not remember for five minutes even one of four words that he asked her to remember during a conversation; that she cannot name one single current event happening anywhere in the world; and, that she cannot perform even the simplest arithmetic calculations, such as 3 + 1. He opined that the victim will always need to be in a highly structured environment where she will be cared for, as she will never be able to function independently. Significantly, Dr. Graham testified that in his professional opinion the victim suffers from a mental defect that renders her “permanently incapable of appraising the nature of her conduct” in the context of engaging in sexual intercourse — the very definition of “mentally defective” contained in the statute pursuant to which the State prosecuted Dudley.

It was undisputed that Dudley was fully aware of the victim’s mental condition. After becoming romantically involved with the victim’s mother, Dudley moved in with the family and had become “like a father figure” to the victim. At some point, Dudley lost his job, and then became the primary caregiver for the victim when her mother was at work. It was Dudley who had taken the victim to her appointment with Dr. Graham for a disability benefits evaluation; and, it was Dudley who initially gave Dr. Graham a full background and factual explanation of the victim’s mental limitations, before Dr. Graham began his own testing and evaluation. Dudley also admitted to his two sexual encounters with the victim, although he testified that the victim “came on to” him both times. He also testified that he believes the victim can work and do some things for herself, and that he believes the victim to be more intelligent than most others recognize.

It is unclear what procedural mechanism the trial judge was following when he sua sponte announced that he was setting aside the verdicts and dismissing the charges in this case. Dudley had never moved to dismiss the charges; the judge had denied Dudley’s motions for judgment of acquittal at trial; and, there were no post-trial motions pending. Dudley was simply awaiting sentencing. In any event, “[t]he sufficiency of the evidence to support a particular criminal charge, whether evaluated by the trial court or by an appellate court, is a question of law.” Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). Accordingly, we determine whether the evidence was sufficient to support the verdicts de novo. A jury’s guilty verdict should not be set aside for a lack of evidence unless “there is no view of the evidence which the jury might take favorable [to the State] that can be sustained under the law.” Hunter v. State, 8 So.3d 1052 (Fla.2008), cert. denied, — U.S. -, 129 S.Ct. 2005, 173 L.Ed.2d 1101 (2009) (quoting Coday v. State, 946 So.2d 988, 996 (Fla.2006), cert. denied, 551 U.S. 1106, 127 S.Ct. 2918, 168 L.Ed.2d 249 (2007)).

The parties cite to five relevant appellate decisions dealing with the sufficiency of the evidence to support a jury finding that a sexual battery victim was “mentally defective” at the time of the crime. Dudley argues for affirmance of the trial court’s dismissal order citing Mathis v. State, 682 So.2d 175 (Fla. 1st DCA 1996) and State v. Torresgrossa, 776 So.2d 1009 (Fla. 5th DCA 2001). The State argues for reversal and reinstatement of the verdicts, citing Hudson v. State, 939 So.2d 146 (Fla. 4th DCA 2006), Schimele v. State, 784 So.2d 591 (Fla. 4th DCA 2001) and Bowman v. State, 760 So.2d 1053 (Fla. 4th DCA 2000). In our view, the facts from Hudson, Schimele and Bowman more closely match the facts in this case, and both Mathis and Torresgrossa are distinguishable.

In Schimele, the Fourth District found that the state had presented sufficient evidence that the alleged victim was mentally defective where a psychologist testified that the twenty-six year old mentally “retarded” victim was obviously mentally impaired based upon his “childlike speech,” and other overt characteristics. The expert testified that the victim scored a fifty-three (in the “moderately impaired range”) on the Wechsler Adult Intelligence Scale, the standard IQ test. In comparison, the victim in our case had a slightly lower overall score of fifty-one. Although the victim in Schimele was able to work three days a week, for three hours a day as a supermarket bagboy, he required a similar level of supervision and care as the victim in our case. He had a similarly “young developmental age,” limited “personal care ability,” and “almost no mathematical ability.” The psychologist in Schimele testified that the victim in that case was “incapable of understanding the nature of his conduct and its ramifications” and “was not able to give a knowing, voluntary, intelligent consent to having sexual relations” because of his mental limitations. Schimele, 784 So.2d at 593.

Bowman is also similar, holding that evidence of a low IQ score and comparable testimony from a school psychologist regarding the limited mental ability of the purported victim were sufficient to support a jury finding that the victim was mentally defective. Although the Bowman panel included fewer details regarding the mental ability of the victim in its opinion, the decision relates that the victim was in his early twenties but “behaves like a four or five year old in some respects, and a nine or ten year old in others.” Bowman, 760 So.2d at 1053. The victim was unable to read or write, but could sign his name. Id. A school psychologist testified that a person like the victim “should not be left to run an errand or cross the street on his own.” Id. at 1055.

In Hudson, the Fourth District found the evidence sufficient to go to the jury on the issue of whether the victim was mentally defective in a sexual battery prosecution, even absent expert testimony, where the investigating detective testified that he believed the victim to be about seven to nine years old mentally, and the nurse who examined the twenty-six year old victim testified that the victim was “childlike and delayed,” and “documented that [the victim] appeared to be mentally challenged.” The evidence summarized in the Hudson opinion regarding that victim’s mental limitations is less substantial than the evidence presented regarding the victim’s mental limitations in our case.

Although examination of the sufficiency of the evidence on any issue is obviously a case-specific and fact-intensive inquiry, the relevant facts regarding the victim’s mental capacity are close enough in our case to the facts found sufficient in Schimele, Bowman and Hudson that it would be difficult to affirm dismissal of the charges here without conflicting with those decisions from the Fourth District.

By contrast, in Mathis the First District reversed a conviction based upon the appellate panel’s conclusion that the evidence was legally insufficient to permit a jury to find that the victim in that case was “mentally defective” on the date of the alleged sexual battery. Mathis is distinguishable for two reasons. First, the testimony in Mathis established the victim to be “right at the upper end of’ the “trainable mentally handicapped range,” and the mental capacity evidence regarding the victim was based upon observations made and testing done “fifteen months before the date of the alleged sexual battery.” Mathis, 682 So.2d at 180. Because the evidence in Mathis suggested that the mental capacity of the victim would improve with time, the panel was properly concerned about the lack of evidence addressing the mental capacity of the victim as of the date of the charged crime. There is no similar concern in our case, because the witnesses testified regarding the victim’s mental condition at the time of the crimes. Additionally, the victim’s mental condition here is permanent.

Second, the Mathis panel expressed special concern regarding the fact that no expert opined that the victim suffered from “ ‘a mental disease or defect which rendered] [her] temporarily or permanently incapable of appraising the nature of ... her conduct.’ ” Id. (quoting § 794.011(1)(b), Fla. Stat. (1993)). In our case, Dr. Graham gave that opinion.

Our prior panel decision in Torresgrossa is also readily distinguishable in that the victim in that case was measurably more advanced, in terms of her mental capacity, than the victim here. Although classified by the state’s expert as mildly mentally retarded, the alleged victim in Torresgros-sa held a high school diploma, had been a licensed driver, had held employment, had prior consensual sexual relationships with a previous boyfriend who she had considered marrying, and understood that the defendant was married at the time that she engaged in sex with him. Torresgrossa, 776 So.2d at 1010. She had obtained a prescription for birth control pills, and knew that their purpose was to ensure that she did not become pregnant when engaging in sex. Significantly, the state’s expert in Torresgrossa conceded that he “thought [the victim’s] sexual relations with her pri- or boyfriend were consensual.” Id. at 1010-11. That concession itself would seem to preclude a finding that the victim was incapable of appreciating the nature of her conduct regarding sex.

Although both Mathis and Torresgrossa are factually distinguishable, we find the analysis in Mathis troubling in that it suggests an unreasonably narrow reading of the term “mentally deficient.” In short, Mathis equates “mental deficiency” with “legal insanity,” and further suggests that anyone with a sufficient mental capacity to competently testify in court cannot be found “mentally deficient.” Torresgrossa could be read as approving of Mathis on that point. The Fourth District in Bowman, however, noted its disagreement with this portion of the Mathis panel’s analysis, explaining:

We do not see a problem, as the Mathis court may have, with a victim being found able to understand the moral obligation to testify truthfully, and still being mentally defective under the statutory definition. It is not unusual for a child who is actually or mentally five years old to sufficiently understand the moral obligation to tell the truth so as to be competent to testify. Telling the truth is a basic value of our society which is drummed into the heads of children as soon as they are able to reason. The fact that such a child is competent to testify, however, is not inconsistent with being mentally defective under section 794.011(1)(b), Florida Statutes. Unlike telling the truth, the inappropriateness of the type of sexual activity occurring in Mathis or this case is not necessarily something which is normally discussed with a person who is mentally only five years old.

Bowman, 760 So.2d at 1055.

We agree with the Fourth District on this point. “Mentally deficient” cannot reasonably be read to mean a total lack of mental capacity, as the trial judge in our case seems to have concluded based upon language in Mathis and Torresgrossa. “Deficient” means “lacking in some ... quality” or “not up to a normal standard.” Merriam-Webster Dictionary (2011), http://www.merriam-webster.com/ dictionary/deficient. It does not mean “devoid of’ or “totally lacking.” Similarly, the statutory definition of “mentally deficient,” that is, “incapable of appraising the nature of his or her conduct,” connotes significantly diminished judgment, but not a complete and total lack of mental awareness.

Accordingly, to the extent that Mathis can be read as equating “mental deficiency” with competence to testify, or to mean a total or complete lack of mental capacity or understanding, we disagree and conflict with Mathis. To the extent that Torresg-rossa positively relied on Mathis as to this narrow point, we recede from Torresgros-sa.

REVERSED AND REMANDED WITH DIRECTIONS; CONFLICT CERTIFIED.

ORFINGER, C.J., GRIFFIN, SAWAYA, PALMER, MONACO, TORPY, EVANDER, COHEN, and JACOBUS, JJ., concur.

      . Dudley had been an associate pastor at a church attended by the victim’s family. The victim’s mother and father had been experiencing marital challenges and the mother began marriage counseling with Dudley. The relationship between the victim’s mother and Dudley had progressed from there. The mother ultimately divorced her husband, and Dudley moved in with the family.

      . Similarly, in this case, Dr. Graham opined that the victim suffers from a mental defect that renders her permanently incapable of appraising the nature of her conduct in the context of engaging in sexual intercourse, that she is not capable of giving an intelligent, knowing and voluntary consent to engaging in sexual activity.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rashad CLINTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1621.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    Rashad Clinton, Carrabelle, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2009-CF-003324, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

EVANDER, COHEN and JACOBUS, JJ., concur.


text:
    Joseph M. BOULE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-901.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    Joseph M. Boule, Jr., Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Joseph M. Boule, Jr., appeals from the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 in lower case number 2007-CF-952. Boule originally entered a plea to the charges in this case in exchange for a sentence of 11 months and 29 days in the county jail followed by 3 years of drug offender probation. When Boule violated his probation, the court imposed a sentence of 15 years in prison on the most serious of the charges. Thereafter, Boule timely filed a 3.850 motion challenging his original plea and sentence, which the trial court summarily denied. Boule appealed the denial order and, while this appeal was pending, filed a second 3.850 motion challenging his counsel’s representation during the violation of probation hearing. The trial court dismissed this second motion believing that it lacked jurisdiction to entertain it in light of the pending appeal of Boule’s first 3.850 motion. Boule filed this appeal challenging dismissal of his second 3.850 motion.

As the State acknowledges on appeal, a trial court has concurrent jurisdiction during the pendency of an appeal from an order denying postconviction relief to consider a subsequent postconviction motion that raises issues unrelated to those presented in the prior motion. See, e.g., Smith v. State, 34 So.3d 818 (Fla. 2d DCA 2010). Accordingly, we reverse the order on appeal and remand with directions that the trial court consider Boule’s motion for postconviction relief.

REVERSED AND REMANDED WITH DIRECTIONS.

ORFINGER, C.J., LAWSON, and COHEN, JJ., concur.


author: PALMER, J.

text:
    L.G., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3854.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

L.G. appeals the trial court’s order incorporating the Department of Juvenile Justice’s community based treatment plan into his probation for lewd and lascivious conduct. We find no reversible error and affirm. However, we remand for the entry of an order clarifying where L.G. shall live. L.G. is required to follow both the psychosexual evaluation recommendations and the community based treatment plan as conditions of his probation. The psy-chosexual evaluation provided that he remain in the residence of his mother’s cousin, but the community based treatment plan provided that he live with his mother. Accordingly, clarification of the court’s ruling is required.

AFFIRMED, REMAND for clarification.

TORPY and JACOBUS, JJ., concur.


text:
    Robert F. KAYE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3218.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Robert Kaye appeals the trial court’s failure to award him credit for time served. We affirm. Kaye was sentenced on a revocation of probation on August 31, 2010. At sentencing, he did not object when the trial court announced his credit for time served. After filing an appeal, Kaye filed a pro se motion seeking additional jail credit pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court struck the motion for two reasons. First, the trial court was divested of jurisdiction to consider the motion because it was filed after the notice of appeal. Second, the pro se motion was a nullity because it was filed while Kaye was represented by counsel.

On appeal, Kaye claims he should have been credited for time served in Hamilton County. Whether Kaye is entitled to that credit is not clear from the face of the record, and his failure to object to not receiving the proper jail credit renders this issue unpreserved for appellate review. See Murray v. State, 36 So.3d 792, 793 (Fla. 1st DCA 2010).

AFFIRMED.

ORFINGER, C.J., COHEN and JACOBUS, JJ., concur.

      . Kaye could have, but did not file a motion during the pendency of the appeal pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).


text:
    Dexter RENTZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1306.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    Robert L. Sirianni, Jr., and Paetra T. Brownlee of Brownstone, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the final judgment revoking his probation. Because the State relied exclusively on hearsay evidence to prove the violations of conditions one and three, and it failed to prove a willful violation of condition two, we reverse.

Appellant was accused of a violation of conditions one and three based on the factual allegation that he changed his residence without permission and falsely reported his residence to his probation officer. He denied that he had moved, maintaining that he still resided with his cousin at the approved residence. The State attempted to prove the violation through the testimony of the probation officer. However, his knowledge was based solely on hearsay without any independent corroboration. Although the trial court was correct in admitting the evidence over a hearsay objection, it erred in finding that this evidence was sufficient, standing alone, to support the finding that Appellant violated these conditions.

The trial court also erred in concluding that Appellant violated condition two of his probation for failing to pay costs and restitution because the trial court made no finding (and the evidence was lacking) that Appellant willfully failed to pay. Limbaugh v. State, 16 So.3d 954 (Fla. 5th DCA 2009). On remand, the trial court should reinstate the probation or impose non-prison sanctions pursuant to section 948.06(5), Florida Statutes (2010).

REVERSED AND REMANDED.

ORFINGER, C.J., TORPY and JACOBUS, JJ., concur.


text:
    Boja J. LONCARSKI, Janet Loncarski, et al., Appellants, v. FREEDOM BANK OF AMERICA, Appellee.
    No. 5D10-457.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    Jon B. Coats, Jr., Pinellas Park, for Appellants.
    Thomas H. McClain, Jr., of Fisher & Sauls, P.A., St. Petersburg, for Appellee.
   PER CURIAM.

AFFIRMED, without prejudice for Appellants to seek set-off. See Mullins v. Sunshine State Serv. Corp., 540 So.2d 222 (Fla. 5th DCA 1989); Photomagic Indus., Inc. v. Broward Bank, 526 So.2d 136 (Fla. 3d DCA 1988); Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408 (Fla. 2d DCA 1983).

PALMER, TORPY and COHEN, JJ., concur.


author: JACOBUS, J.

text:
    Joseph WILBUR, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4225.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.

      Paula C. Coffman, Office of Criminal Conflict & Civil Regional Counsel Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

The appellant, Joseph Wilbur, appeals the judgment and sentence entered after a jury found him guilty of the sale of cocaine. Wilbur contends that the court erred by allowing the State to present Williams Rule evidence concerning two other offenses at trial. We agree that it was improper to admit into evidence Wilbur’s prior drug offenses and reverse and remand for a new trial.

This court has previously discussed the admission of similar fact evidence at trial. We explained:

Similar fact evidence is admissible if relevant to a fact in issue, even though it also points to the commission of a separate crime. Such evidence is inadmissible, however, if its sole relevancy is to establish bad character on the part of the accused. Coler v. State, 418 So.2d 238 (Fla.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983). A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. In order for the similar facts to be relevant, the points of similarity must have some special character or be so unusual as to point to the defendant. Peek v. State, 488 So.2d 52 (Fla.1986); Drake v. State, 400 So.2d 1217, 1219 (Fla.1981). The admission of improper collateral crime evidence is “presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.” Peek, 488 So.2d at 55, quoting Straight v. State, 397 So.2d 903, 908 (Fla.1981).

Wilson v. State, 490 So.2d 1062, 1064 (Fla. 5th DCA 1986).

There was nothing unique or of special character in the crime allegedly committed by Wilbur. It was nothing more than a simple sale of cocaine to a confidential informant. The fact that he made two earlier sales to the same confidential informant was not relevant to the case charged and was only admitted to show Wilbur’s propensity to sell cocaine. Therefore, the admission of this evidence for identity was error. See id.

Moreover, we conclude that the court’s error in admitting the Williams Rule evidence was not harmless. See Bricker v. State, 462 So.2d 556, 559 (Fla. 3d DCA 1985) (admitting Williams’ Rule evidence not harmless error where proof of guilt against appellant was not clear and convincing). Accordingly, this case is reversed and remanded for a new trial.

REVERSED and REMANDED for new trial.

MONACO and TORPY, Jj„ concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Quintel GRIFFEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-614.
    District Court of Appeal of Florida, Third District.
    July 5, 2011.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See State v. Hawthorne, 573 So.2d 330 (Fla.1991).


author: GERSTEN, J.

text:
    Joseph MARTIN and Arlene Martin, Petitioners, v. In re the ADOPTION OF L.M.D., Respondent.
    No. 3D10-2407.
    District Court of Appeal of Florida, Third District.
    July 5, 2011.
    Deborah Marks, Miami, for petitioners.
    Mary Pena; Andrew M. Kassier, for respondent.
    Before GERSTEN, RAMIREZ, and EMAS, JJ.
   GERSTEN, J.

Joseph and Arlene Martin (“the adoptive parents”) seek certiorari or prohibition based on the trial court’s denial of a motion to dismiss Karen DeAngelis’ (“the biological mother”) motion to vacate an adoption. We grant the petition.

The adoptive parents, the maternal grandparents of the child, L.D.M., sought to adopt L.D.M. After the biological mother signed documents consenting to the adoption, the trial court entered a final judgment of adoption.

Two years later, the biological mother moved to vacate the court’s judgment, arguing the adoptive parents fraudulently obtained her consent. The adoptive parents moved to dismiss, contending that Florida’s statute of repose barred the biological mother’s claim. The trial court denied the motion to dismiss, and this petition followed.

On petition for certiorari or prohibition, the adoptive parents assert that the trial court erred in denying the motion to dismiss because Florida’s statute of repose strictly limits motions to vacate adoption orders to one year. There are no exceptions. The biological mother contends that the trial court correctly ruled that Florida’s statute of repose is not applicable where there is an allegation of fraud. We agree with the adoptive parents and reverse.

Florida has an independent statute of repose for adoptions. § 63.182, Fla. Stat. (2009). The statute provides that “an action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption or an underlying judgment terminating parental rights on any ground may not be filed more than 1 year after entry of the judgment terminating parental rights.” § 63.182 (emphasis added).

The following is a brief recitation of Florida’s statute of repose concerning adoptions. As initially enacted in 1973, the statute provided a one-year time limitation for any direct or collateral attack on an adoption judgment for any irregularity or procedural defect, including consent. Ch. 73-159, § 18, Laws of Fla. In 2000, the Legislature amended the statute to provide a two-year limitation on claims based on fraud. Ch. 2000-188, § 6, Laws of Fla. The Legislature reversed this amendment in 2003, when it eliminated the two-year fraud limitation and restored the one-year time limit for challenges on any ground. Ch. 2003-58, § 32, Laws of Fla.

Thus, in its final amended form, the legislative intent is in perfect sync with its stated purpose. The legislature specifically listed its intent was to: (a) meet the state’s “compelling interest in providing stable and permanent homes for adoptive children in a prompt manner,” (b) “prevent[] the disruption of adoptive placements, and (c) assure “[ajdoptive children have ... permanence and stability in adoptive placements.” Ch. 2003-58, § 1, Laws of Florida. Clearly, the Legislature has the prerogative to set the state’s policy in matters of public welfare. See, e.g., Stewart v. De Land-Lake Helen Special Road & Bridge Dist., 71 Fla. 158, 71 So. 42 (1916); Saunders v. Saunders, 796 So.2d 1253 (Fla. 1st DCA 2001).

Here, because the biological mother waited until after two years to allege that the adoption was fraudulent, she cannot overcome the statute of repose. Admittedly, it may seem like an unfortunate result if the adoption was fraudulently induced, but the biological mother failed to follow the law and failed to make her allegations in a timely manner. We find that the compelling interest, as reflected in the statute and legislative history, must be in favor of creating stability and permanent homes for the adoptive child. Therefore, the trial court erred in denying the motion to dismiss.

Accordingly, we grant the petition, quash the order denying the motion to vacate, and remand this cause for entry of an order of dismissal.

Petition granted, order quashed, and remanded with instructions.


text:
    S.B., Mother of B.R., S.R., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-36.
    District Court of Appeal of Florida, Fifth District.
    July 7, 2011.
    Edward M. Abel of the Law Office of Edward M. Abel, D.M.D., Esq., LLC, Spring Hill, for Appellant.
    Rosemarie Farrell, Orlando, for Appel-lee.
    Wendie Michelle Cooper, Tavares for the Guardian ad Litem Program.
   PER CURIAM.

ON CONFESSION OF ERROR

Pursuant to the Appellee’s confession of error, the “Order of Adjudication [of Dependency] and Modification of Injunction” is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.


author:
PER CURIAM.
      VICTORY, J.,

text:
    Daniel MORENO v. ENTERGY CORPORATION, Entergy Gulf States, Inc., Entergy Louisiana, LLC, Eagle Enterprises of Jefferson, Lafayette Insurance Company, Walgreen Louisiana Co., Inc., ABC Insurance Company and the Parish of Jefferson.
    No. 2010-C-2268.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   PER CURIAM.

| TThis case presents a straightforward, but novel, issue: whether there exists in Louisiana law an “exception of no cause of action based on prematurity,” and, if so, whether the court of appeal may supply this exception on its own motion. The answer to both questions is no. We therefore reverse the judgment of the court of appeal and remand for further consideration.

PROCEDURAL HISTORY

Plaintiff Daniel Moreno was injured while working near an overhead power line in Jefferson Parish. Moreno sued numerous defendants, including Entergy, the owner of the power lines. Entergy filed several third party cross-claims, which are the subject of these consolidated writs.

1 ¡¿Entergy seeks indemnity based on the Overhead Power Line Safety Act, La.Rev. Stat. § 45:141-146 (“OPLSA”). This Act forbids any party from conducting work within ten feet of an overhead power line without first contacting the owner line and making appropriate safety arrangements. Entergy argues that, if it is held liable for Moreno’s injuries, the Act creates a right of indemnity against those contractors, including Stewart Interior Contractors, LLC, who worked near the power lines in violation of the Act. of the

The trial court ruled in favor of the cross-defendants, finding that the OPLSA does not create an independent right of indemnity for damages incurred as a result of injuries suffered by third parties. En-tergy appealed. The court of appeal affirmed on the grounds of prematurity, which had not been raised by any party: “the cross-claims of Entergy ... were premature. No fault has been allocated to any party in the case, and no damages from Moreno’s action have been assessed against Entergy. No cause of action for indemnity has been incurred by Entergy at this phase in the matter.” Moreno v. Entergy Corp., 09-976 (La.App. 5 Cir. 9/10/10), 49 So.3d 418. The court, without requesting briefing from the parties, entered what it called an “exception of no cause of action on the basis of prematurity.” Id. at 422.

Both Entergy and cross-defendant Stewart Interior Contractors, LLC filed writs, urging the court of appeal’s sua sponte ruling was in error. We agree.

DISCUSSION

The exception of prematurity is a dilatory exception. La.Code Civ. Proc. art. 926(A)(1). A court may not raise a dilatory exception sua sponte; indeed, “All objections which may be raised through the dilatory exception are waived unless therein.” La.Code Civ. Proc. art. 926(B). The court of appeal recognized this principle, citing Teche Financial Services, Inc. v. State, Dept. of Public Safety, 06-250, p. 5 (La.App. 3 Cir. 9/27/06); 939 So.2d 650, 654, for the proposition that “appellate courts cannot supply an exception of prematurity on its [sic] own motion.” Moreno v. Entergy Corp., 09-976 (La.App. 5 Cir. 9/10/10), 49 So.3d 418, 422.

However, a court of appeal may raise the peremptory exception of no cause of action sua sponte: “the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit ... may be noticed by either the trial or appellate court on its own motion.” La.Code Civ. Proc. art. 927(B). The court therefore fashioned a new exception, which it called the exception of “no cause of action on the basis of prematurity.”

The court of appeal erred as a matter of law, as these two exceptions serve completely different functions. An exception of no cause of action tests “the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). An exception of prematurity serves a completely different purpose: “The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination.” Williamson v. Hospital Service Dist. No. 1 of Jefferson, 2004-0451 (La.12/1/04), 888 So.2d 782, 785. These are two separate lines of inquiry, and the court of appeal erred in conflating them.

|4Although the court of appeal claimed it was entering an exception of no cause of action, the judgment was not truly based on the legal insufficiency of the allegations. It is clear that the court based its ruling solely on the theory that Entergy’s indemnity claim was not ripe for adjudication, which is properly raised only via dilatory exception.

A similar issue appeared in the well-reasoned case of Steed v. St. Paul’s United Methodist Church, 31,521 (La.App. 2 Cir. 2/24/99), 728 So.2d 931. Plaintiff Marian Steed sued the church and its minister, alleging sexual harassment and discrimination. The minister filed a reconventional demand for defamation on the basis that plaintiff’s false allegations had damaged his reputation in the community. Before the court of appeal, Steed argued the re-conventional demand was premature unless and until the court entered judgment finding her allegations were false. However, she never filed an exception of prematurity, and the court of appeal declined to supply one: “Prematurity, like the other dilatory exceptions, is waived unless pled.” Id. at 938. Although Steed asked the court of appeal to supply an exception of no cause of action based on prematurity, the court declined: “we are obligated to construe the exception by its substance, not the title supplied by the litigant. La. C.C.P. art. 865. Steed’s argument cannot be possibly construed as denying the legal sufficiency of Rev. Simmons’s reconven-tional demand; her only genuine claim is prematurity. For the reasons already discussed, prematurity was waived.” Id. at 939. Accord, Farber v. La. State Board of Medical Examiners, 2009-0301 (La.App. 4 Cir. 9/9/09), 22 So.3d 962, 963.

|sJust as in Steed, the “true import” of the court of appeal’s judgment is the supposed prematurity of Entergy’s cross-claim. As Stewart did not raise this exception — and, it appears, purposefully chose not to raise this exception — the court of appeal erred in supplying it on its own motion.

CONCLUSION

Accordingly, we reverse the judgment of the court of appeal and remand to the court of appeal for consideration of preter-mitted issues not addressed in the original opinion.

VICTORY, J., concurs and assigns reasons.

WEIMER, J., concurs in the result.

VICTORY, J.,

concurring.

It The court of appeal held that the indemnity claims were premature because the defendants had not yet been cast in judgment and supplied an exception of no cause of action based on prematurity to dismiss the indemnity claims without prejudice. The per curiam holds that there is no exception of no cause of action based on prematurity and that such exception can only be raised by a dilatory exception, which cannot be supplied by the court.

In Steeg v. Lawyers Title Ins. Corp., 329 So.2d 719 (La.1976), this Court held that the objection of prematurity may be raised not only by a dilatory exception, but also by an exception of no cause of action or as a defense in the answer. Steeg involved an objection of prematurity based on failure to exhaust administrative remedies and the objection was raised by a dilatory exception. However, the Court could not have been clearer in stating:

The defense that the plaintiff is not entitled to judicial relief because he has not exhausted his administrative remedies, may be raised to the merits, either by the exception pleading no cause of action, La. C.C.P. art. 927(4) (if such defense is affirmatively show by the petition without resort to objected-to evidence, La. C.C.P. art. 931), or by answer so pleading it. See O’Meara v. Union Oil Co., 212 La. 745, 33 So.2d 506 (1947).
The defense may also be raised, as it was here, by the dilatory exception pleading prematurity, La. C.C.P. art. 926(1), which is determined on the basis of the showing made at the in-limine trial of the exception, including evidence introduced at the trial thereof. La. C.C.P. art. 929, 930. The functions of the exception permit raising the issue that the judicial cause of action has not come into existence because some prerequisite condition has not been fulfilled. I McMahon, Louisiana Practice 341-49 (1939).

329 So.2d at 720.

Professor Maraist’s Civil Law Treatise discusses the exception based on prematurity in his sections dealing with the dilatory exception and the peremptory exception of no cause of action, and relies on Steeg as authority that the exception of prematurity can be raised by either. Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure, Vol. I, § 6.6, p. 160, n. 26 (2d ed.2008). Professor Maraist states that “[I]n Steeg ..., the court noted that the objection of prematurity may be raised not only by a dilatory exception, but also by an exception of no cause of action or as a defense in the answer.” Id. Later, after stating that “[t]he exception of no cause of action must be distinguished” from certain dilatory exceptions, he cites Steeg as authority that some exceptions, namely the exception of prematurity, “may be urged through both exceptions.” Id., § 6.7, p. 170, n.40. Based on the above, it seems the |aper curiam’s holding that the court of appeal “fashioned a new exception, which it called the exception of ‘no cause of action on the basis of prematurity’,” is not correct, and at the very least is too broad. As per Professor Maraist’s discussion in the above footnote, this Court has stated that the exception of prematurity can be raised by either exception, although the Court has not taken a stand on whether certain types of prematurity arguments can only be raised by certain types of exceptions, i.e., where the defendant has failed to take some preliminary step necessary to make the case ripe for judicial involvement. However, the statement made in Steeg was technically dicta, as the exception there was raised as a dilatory exception.

In my view, the Court should address the primary, and much clearer, issue, which is whether a third party indemnity claim is premature when the defendant has not yet been cast in judgment. The court of appeal found that such a claim is premature. However, a clear reading of La. C.C.P. arts. 1111-1116 demands that the third party demand is not premature. For example, La. C.C.P. art. 1111 states that a “defendant in a principal action by petition may bring in any person, including a 14codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.” La. C.C.P. arts. 1112 and 1116 provides the same right to defendants in reconvention and third party defendants. Most significantly, La. C.C.P. art. 1113 provides harsh consequences for a defendant who fails to bring in such a third party defendant:

A defendant who does not bring in as a third party defendant a person who is liable to him for all or part of the principal demand does not on that account lose his right or cause of action against such person, unless the latter proves that he had means of defeating the action which were not used, because the defendant either failed to bring him in as a third party defendant, or neglected to appraise him that the suit had been brought.

Similarly, La. C.C.P. art. 1091 allows “a third party having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties ...” An important reason for allowing a third party claim for indemnity to be filed before the defendant is cast in judgment is because if the third party is not permitted to participate in the trial on the principal demand, it may be forced to indemnify the main defendant for a large judgment it could have otherwise averted.

For the above reasons, I concur in the result.

      . The record before us is not clear on the relationship, if any, between Entergy Corporation, Entergy Gulf States, LLC, and Entergy Louisiana, LLC. Although we generally refer to these entities as "Entergy” for the sake of convenience, the writ before us was filed on behalf of Entergy Louisiana, LLC.

      . A later panel of the Fifth Circuit, addressing precisely the same issue, came to the opposite conclusion. Dean v. Entergy Louisiana, LLC, 10-887 (La.App. 5 Cir. 10/19/10) (unpublished).

      . There is one case from this Court that can be read as having reached a different result. In Steeg v. Lawyers Title Ins. Corp., 329 So.2d 719 (La.1976), this Court stated in apparent dicta that an exception based on failure to exhaust judicial remedies may be brought either as an exception of no cause of action or an exception of prematurity. Id. at 720. citing O’Meara v. Union Oil Co., 212 La. 745, 33 So.2d 506 (1947). As the only exception actually raised in Steeg was based on prematurity, that comment made no part of the holding of the case. No Louisiana court has ever relied on Steeg for this proposition; however, it is cited in the Civil Law Treatise as authority that a "[fjailure to exhaust administrative remedies may be raised through a dilatory exception of prematurity, a peremptory exception of no cause of action, or in the answer.” 1 La. Civil L. Treatise, Civ. Procedure § 6.6, n27 (2010). In any event, Steeg is not applicable here as no party has raised an alleged failure to exhaust administrative remedies.

      . Most of the discussion centers around two different grounds for prematurity-one in which the obligation exists but for which the time for performance has not yet arrived, and the other in which the obligation has not yet come into existence-and whether one type must be raised by dilatory exception. Id. at pp. 157-161. Professor Maraist makes the following observations:
      Both objections concern the substance of the underlying obligation, rather than the absence of a preliminary step in the enforcement process such as the exhaustion of administrative remedies. In the latter case, use of the dilatory exception is clearly appropriate, because the purpose of a dilatory exception is to delay, and not to defeat, the action. In the former case, however, it seems more appropriate that the objection of prematurity should be raised by the peremptory exception of no cause of action (whose function is to defeat the action), an exception which may be raised at any time, or as a defense on the merits.

        Perhaps the mandatory use of the dilatory exception to raise an objection of prematurity should be reserved for those cases in which the obligation and the right to enforce the obligation has come into existence, but the plaintiff has failed to take a necessary preliminary step; however, when either a condition or a term is not fulfilled, the cause of action is not fully formed, and the this type of literal "prematurity” should be addressed through the peremptory exception of no cause of action or on the merits. The Supreme Court has not ruled on the issue precisely [noting Steeg's holding that the exception based on prematurity can be raised by either exception], but the jurisprudence has developed the following examples of the proper use of the dilatory exception of prematurity: when the plaintiff has failed to exhaust administrative remedies, when the plaintiff is obligated to arbitrate, when the plaintiff has failed to tender a thing to the seller for repair in a redhibition action, when the plaintiff has failed to place the defendant in default when a placing in default is necessary, or when the plaintiff has failed to obtain a decision of a medical review panel before filing a malpractice suit against a qualified health care provider. In these types of cases, the exception does not challenge or attempt to defeat any of the elements of the plaintiffs cause of action or of the underlying obligation. Rather, the defendant asserts that the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement, and waiver of the objection is appropriate if the defendant fails to file a timely dilatory exception.

        Id. at pp. 159-161.


text:
    In re Stephen P. CALLAHAN.
    No. 2011-B-0268.
    Supreme Court of Louisiana.
    April 29, 2011.
   PER CURIAM.

h This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Stephen P. Callahan, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Callahan, 09-6404 (La.2/20/09), 2 So.3d 431.

UNDERLYING FACTS

Counts I & II — The Brown Matter

In September 2004, Mr. and Mrs. Ernest Brown paid respondent $3,500 to file an application for post-conviction relief on behalf of their son, Arlen Brown. Respondent subsequently prepared the application for post-conviction relief, but he did not file it and he did not communicate with his client. As a result, Mr. Brown filed a pro se application for post-conviction relief. Thereafter, Mr. Brown made several written requests for his file, a trial transcript, and the return of the fee paid to respondent, all to no avail. According to Mr. Brown, his application for post-conviction relief was denied because he did not submit the trial transcript along with the application.

Both Mr. Brown and his parents filed complaints against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaints.

|2The ODC alleged respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15(d) (failure to timely remit funds to a client or third person), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.

Count III — The Daigle Matter

In December 2006, Stephen Daigle, Sr. retained respondent to represent his son, Stephen Daigle, Jr., in a criminal matter. Mr. Daigle, Sr. paid $1,750 towards respondent’s $3,500 fee, with the remaining balance to be paid prior to trial. In January 2007, respondent attempted to visit Mr. Daigle, Jr. in jail. When he arrived, respondent was informed that Mr. Daigle, Jr. had been transferred to federal custody in Alabama. Thereafter, Mr. Daigle, Sr. telephoned respondent’s office several times to request an accounting and a refund of unearned fees, but he was only able to leave messages with respondent’s secretary. Mr. Daigle, Sr. also submitted two written requests for an accounting and a refund of fees, to no avail.

In April 2007, Mr. Daigle, Sr. filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 1.3, 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count IV — The Amacker Matter

In September 2005, Michael Amacker paid respondent $1,500 to represent him in a criminal matter. Thereafter, Mr. Amacker wrote numerous letters to respondent |..¡inquiring about the status of his case, but he never received a reply. He also sent several letters requesting a refund of the fee he paid, to no avail.

In June 2007, Mr. Amacker filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 1.3, 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count V — The Price Matter

In 2003, Tony Price paid respondent $3,000 to represent him in a criminal matter. Thereafter, Mr. Price wrote numerous letters to respondent inquiring about the status of the case, to no avail. Respondent refused Mr. Price’s phone calls, never visited him in jail, and responded to him only once. No hearings for Mr. Price’s case were scheduled and no documents were ever filed on Mr. Price’s behalf.

In September 2007, Mr. Price filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 1.3, 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count VI — The Thomas Matter

In November 2002, Irene Thomas paid respondent $2,500 to file an application for post-conviction relief on behalf of her son, Raymond Williams. According to Ms. Thomas, her last contact with respondent was in October 2007, at which time respondent advised that the matter would be resolved and that her son would be released that year. Thereafter, Ms. Thomas made several attempts to contact respondent, to no avail. According to Ms. Thomas, respondent failed to perform any work in the matter.

|4In August 2008, Ms. Thomas filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 1.4, 1.5(f) (payment of fees in advance of services), 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count VII — The Celestine Matter

In 2008, Ezeldia Celestine retained respondent to represent her son in a criminal matter, including a bond reduction. Ms. Celestine initially paid respondent $1,750 towards his $3,500 fee to handle the matter, with the remaining balance to be paid prior to trial. Following a hearing in the criminal case, Ms. Celestine’s son was released. According to Ms. Celestine, respondent never visited her son in jail, never filed for a bond reduction, and never appeared in court on her son’s behalf. When Ms. Celestine requested a refund of the fee she paid, respondent advised that he had performed two hours of work in the matter, but agreed to refund the unearned portion of the fee, which he failed to do.

In November 2008, Ms. Celestine filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 1.3, 1.4, 1.5(f), 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count VIII

In February 2009, the ODC received a letter from Judge Timothy Ellender of the 32nd Judicial District Court for the Parish of Terrebonne. Respondent had appeared in Judge Ellender’s courtroom on January 20, 2009 to defend a client in a scheduled second-degree murder trial. Judge Ellen-der reported that on that date, respondent appeared “disheveled and shaken” and that his speech was “somewhat | .^incoherent.” Respondent denied that he had taken narcotic prescription pain medication prior to his appearance, but he voluntarily submitted to a drug test and tested positive for opiates.

The ODC alleged respondent violated Rules 1.1(a) (failure to provide competent representation to a client), 8.4(a), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count IX — The Rhodes Matter

In September 2008, Sandra Rhodes paid respondent $2,500 to handle a child custody matter. In preparation for a hearing in the case, respondent met with two potential witnesses, spoke to a third potential witness over the telephone, and took possession of two audio tapes. Respondent subsequently informed Ms. Rhodes that a court date was scheduled in the case in Lafourche Parish in February 2009. However, when Ms. Rhodes contacted the clerk of court in Lafourche Parish to determine the exact date of the hearing, she learned that nothing had ever been filed with the court concerning her child custody matter.

Thereafter, Ms. Rhodes visited respondent’s office and delivered a letter by which she terminated respondent’s services and requested a refund of the fee she paid. During the visit, Ms. Rhodes requested a copy of her file, only to discover that her file consisted of a single piece of paper containing her name and telephone number.

In February 2009, Ms. Rhodes filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

UThe ODC alleged respondent violated Rules 1.3, 1.4, 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count X — The Wolfe Matter

In April 2008, Paula Wolfe consulted with respondent about an outstanding warrant for her arrest. Ms. Wolfe paid $1,500 towards respondent’s $3,000 fee, with the remaining balance to be paid in the event she was arrested. Prior to respondent performing any work on her' behalf, Ms. Wolfe discovered that she did not have any outstanding warrants. Thereafter, Ms. Wolfe attempted to contact respondent to request a refund, to no avail.

In March 2009, Ms. Wolfe filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count XI — The Reed Matter

In September 2006, Sarah Reed paid respondent $3,000 to file an application for post-conviction relief on behalf of her son, Van Wolfe, III. Respondent prepared and filed the application for post-conviction relief. The matter was twice set for hearing and continued on respondent’s motion. When the hearing was re-scheduled for January 2008, respondent failed to appear. Thereafter, respondent failed to appear for any further hearings, and failed to respond to Ms. Reed’s request for a refund of the fee she paid.

In March 2009, Ms. Reed filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

|7The ODC alleged respondent violated Rules 1.3, 1.4, 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count XII — The Howard Matter

In February 2009, Maryland Melissa Howard paid respondent $700 to assist her in regaining possession of a confiscated vehicle. Prior to performing any work in the matter, respondent was interimly suspended from the practice of law. Respondent nevertheless failed to refund the fee paid by Ms. Howard.

In April 2009, Ms. Howard filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 1.4, 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Count XIII — The Bergeron Matter

In April 2009, Deana Bergeron filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 8.1(c) and 8.4(a) of the Rules of Professional Conduct.

Count XIV — The McKemie Matter

In April 2009, Christopher McKemie filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 8.1(c) and 8.4(a) of the Rules of Professional Conduct.

Is Count XV — The Wendt Matter

In April 2008, Troy Wendt paid respondent $2,000 to handle a criminal matter. Respondent appeared in court on Mr. Wendt’s behalf on November 3, 2008 and requested an extension of time to file motions, which request was granted. Thereafter, respondent failed to appear for two hearings in the matter, failed to communicate with Mr. Wendt, and failed to refund the unearned portion of the fee paid by Mr. Wendt.

In June 2009, Mr. Wendt filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

Count XVI — The Lyons Matter

In November 2008, Susie Lyons paid respondent $2,000 to represent her daughter in a criminal matter. Thereafter, respondent failed to communicate with Ms. Lyons and failed to appear for a February 5, 2009 pre-trial conference in the matter. Prior to her daughter’s next scheduled court appearance on March 5, 2009, Ms. Lyons attempted to contact respondent, only to discover that his telephone had been disconnected. When Ms. Lyons was finally able to contact respondent’s secretary, she advised Ms. Lyons to retain new counsel. Respondent failed to refund the unearned portion of the fee paid by Ms. Lyons.

In June 2009, Ms. Lyons filed a complaint against respondent with the ODC. Respondent failed to cooperate in the investigation of the complaint.

The ODC alleged respondent violated Rules 1.3, 1.4, 1.15(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

^DISCIPLINARY PROCEEDINGS

In October 2009, the ODC filed formal charges against respondent, as set forth above. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined the factual allegations of the formal charges were admitted and proven by clear and convincing evidence. Based on the deemed admitted facts, the committee determined that respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4,1.5(f), 1.15(d), 8.1(c), and 8.4(a).

The committee found respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the profession. His conduct caused actual harm to his clients. Respondent failed to adequately communicate with his clients and failed to diligently pursue legal matters. Furthermore, despite numerous requests, there were several instances where respondent failed to return files and unearned fees. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction is disbarment.

ImThe committee found the following aggravating factors present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 1984), and indifference to making restitution. The committee concluded that no mitigating factors exist.

Relying on Guideline 1 (repeated or multiple instances of intentional conversion of client funds with substantial harm) of the permanent disbarment guidelines and this court’s prior jurisprudence, the committee recommended that respondent be permanently disbarred.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that respondent violated the Rules of Professional Conduct as alleged in most counts of the formal charges. However, in a few instances, the board found that the ODC did not allege sufficient facts in the formal charges, or present sufficient additional proof of respondent’s misconduct, to establish a violation. For example, in Count VI, the board determined there was not clear and convincing evidence to establish that respondent failed to communicate with his client, in violation of Rule 1.4, or failed to hold disputed funds |nin trust, in violation of Rule 1.5(f). The board likewise found there was not clear and convincing evidence to establish violations of Rule 1.4 in connection with Counts XI and XII, or of Rule 1.5 in Counts VII and XV.

Based on these findings, the board determined that respondent violated duties owed to his clients, the public, the legal system, and the profession. By their very nature, these acts were both knowing and intentional. Respondent caused actual harm to clients whose matters he abandoned and whose unearned fees he kept. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined disbarment is the baseline sanction.

The board agreed with the aggravating factors found by the committee. In mitigation, the board recognized that respondent has no prior disciplinary record.

Further relying on Guideline 1 of the permanent disbarment guidelines and this court’s prior jurisprudence, the board recommended that respondent be permanently disbarred. The board also recommended that respondent be ordered to make restitution of unearned fees to the persons entitled to receive them, or to the Client Assistance Fund, as appropriate.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

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

The record in this deemed admitted matter supports a finding that respondent neglected his clients’ legal matters, failed to communicate with his clients, failed to refund unearned legal fees, and failed to cooperate with the ODC. Based on these facts, we agree that he violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 518 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record supports a finding that respondent engaged in knowing and intentional misconduct. He violated duties owed to his clients, the public, the legal | ^system, and the legal profession, causing actual harm. Considering the numerous aggravating factors present in this case, and the relative lack of mitigating factors, disbarment is clearly appropriate. However, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might result in permanent disbarment. Respondent’s conduct implicates Guideline 1, in that he converted client funds in eleven separate matters totaling $23,700. Accordingly, respondent must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the - name of Stephen P. Callahan, Louisiana Bar Roll number 14127, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent is ordered to make restitution of unearned fees as recommended by the disciplinary board. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . The incident reported by Judge Ellender prompted the ODC to file a petition for interim suspension. We granted the petition on February 20, 2009.

      . According to Judge Ellender, respondent takes narcotic pain medication as a result of an injury to his back.

      . The formal charges did not allege any specific Rules of Professional Conduct which were violated in connection with this count; however, in its deemed admitted submission filed with the hearing committee, the ODC alleged respondent’s conduct violated Rules 1.5, 8.1(c), and 8.4(a).

      . In its report, the committee also found that respondent violated Rules 1.16 (terminating the representation of a client) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), neither of which were charged in the formal charges. The committee did not discuss the Rule 8.4(d) violation alleged in connection with Count VIII of the formal charges.

      . The board frequently noted that it was finding certain rule violations in this deemed admitted matter because the hearing committee had implicitly accepted a complainant's version of events, as set forth in the complaint, and rejected respondent's denials of misconduct, as set forth in his response to the complaint. In support, the board cited In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548, in which this court remarked upon the importance of credibility evaluations made by the members of the hearing committee, “who act as the eyes and ears of this court.” However, it is readily apparent from a reading of Bolton that this statement was not intended to apply in a deemed admitted matter, but rather in the context of the committee's evaluation of live witness testimony.

      . The board erroneously calculated the fee in Count III as $3,500; however, the record reflects that the client paid only half that amount to respondent. The board correctly acknowledged that some portion of the fee collected in Counts VII and XI may have been earned by respondent because he performed some work in furtherance of the client's objectives.


author: PARRO, J.

text:
    BATON ROUGE POLICE DEPARTMENT v. Charles O’MALLEY.
    No. 2010 CW 1386.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.

      Joseph N. Lotwick, Special Counsel, Baton Rouge, LA, for Respondent, Baton Rouge Police Department.
    Charles L. Dirks, III, Avant & Falcon, Baton Rouge, LA, for Relator, Charles O’Malley.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

12Charles O’Malley appeals a district court judgment that reversed, on judicial review, the decision of the Baton Rouge Municipal Fire and Police Civil Service Board and reinstated the decision of the appointing authority, the Baton Rouge Police Department, to terminate him from the police force. After reviewing the facts and applicable law, we convert the appeal to an application for supervisory writs and deny the writ, thus maintaining the district court judgment.

FACTUAL AND PROCEDURAL BACKGROUND

O’Malley was an employee of the Baton Rouge Police Department (the Department) for eleven years, and held the rank of Corporal. After an internal administrative review and a pre-disciplinary hearing concerning O’Malley’s actions during the stop and arrest of a suspect in a high-crime area, Chief of Police Jeff LeDuff sent him a letter on June 11, 2008, advising him that his employment was being terminated, effective immediately. O’Mal-ley appealed the termination to the Baton Rouge Municipal Fire and Police Civil Service Board (the Board), pursuant to LSA-R.S. 38:2501. On June 18, 2009, the Board conducted an evidentiary hearing at which eight witnesses, including O’Malley, testified, and numerous exhibits, including a videotape of the incident, were reviewed. Following this hearing, the Board voted four to one to modify the disciplinary action from a termination to a ninety-day suspension without pay.

The Department filed a petition for judicial review with the Nineteenth Judicial District Court (19th JDC), alleging that the Board’s decision was not made in good faith and for cause, in that it was contrary to the evidence produced at the hearing. It further stated that the evidence before the Board established that Chief LeDuff acted in good faith and for cause in terminating O’Malley’s employment. It sought reversal of | sthe Board’s decision and reinstatement of the Department’s decision to terminate. All of the evidence submitted to the Board was filed with the 19th JDC, along with a copy of the Board’s minutes, which summarized the testimony of the various witnesses before the Board, and an audio recording of the proceedings. After reviewing the evidence and hearing argument from the parties, the court took the matter under advisement. On December 17, 2009, the court rendered its judgment, reversing the Board’s decision and reinstating O’Malley’s termination. The judgment was signed on January 7, 2010, and O’Malley timely appealed the judgment to this court.

O’Malley contends that although the 19th JDC cited the appropriate standard of review, it actually substituted its opinion for that of the Board when deciding to overturn a decision of the Board that was made in good faith. He further argues that the Department did not carry its burden of proof in determining that he used excessive force, when his actions did not result in any injury to or complaint from the arrestee. Finally, he contends that since the Board did not make formal findings of fact as required by applicable law, the court should not have ruled on the Board’s decision, but should have remanded the matter to the Board with specific instructions.

APPLICABLE LAW

The grounds for which the appointing authority may remove or discipline a tenured employee are set out in LSA-R.S. 33:2500. The pertinent parts of that statute provide that the following constitute “cause” for termination or other disciplinary action:

A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons:
(1) Unwillingness or failure to perform the duties of his position in a satisfactory manner.
(2) The deliberate omission of any act that it was his duty to perform.
(3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.
_k* * *
(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal officer or employee; and, any dishonest, disgraceful, or immoral conduct.
(15) Any other act or failure to act which the board deems sufficient to show the offender to be an unsuitable or unfit person to be employed in the respective service.

The imposition of disciplinary action against a police officer does not occur in “good faith” if the appointing authority acted arbitrarily or capriciously, or as the result of prejudice or political expediency. “Arbitrary or capricious” means the lack of a rational basis for the action taken. The appointing authority must prove its case by a preponderance of the evidence. Shields v. City of Shreveport, 579 So.2d 961, 964 (La.1991).

A regular employee in the classified service who feels that he has been discharged without just cause may demand a hearing and investigation by the Board to determine the reasonableness of the action. LSA-R.S. 33:2501(A). The Board may, if the evidence is conclusive, affirm the action of the appointing authority. LSA-R.S. 33:2501(0(1); Landry v. Baton Rouge Police Dept., 08-2289 (La.App. 1st Cir.5/8/09), 17 So.3d 991, 994-95. If it finds that the action was not taken in good faith for cause, the Board shall order the immediate reinstatement or reemployment of such person. LSA-R.S. 33:2501(C)(1). However, absent the Board’s finding of bad faith on the part of the appointing authority, the Board is without authority to modify the appointing authority’s actions. The Board is not vested with the authority to modify or set aside the decision of an appointing authority merely because the Board disagrees with that decision or finds it too harsh. Baton Rouge Police Dept. v. Robinson, 09-1571 (La.App. 1st Cir.4/30/10), 38 So.3d 993, 995-96.

If the decision of the Board is prejudicial to the appointing authority, the appointing authority may appeal the decision to the court of original and unlimited jurisdiction in civil suits of the parish where the Board is domiciled. See LSA-R.S. 33:2501(E)(1). The district court’s review of the Board’s quasi-judicial administrative | ^determination is an exercise of appellate jurisdiction. Jordan v. City of Baton Rouge, 93-2125 (La.App. 1st Cir.3/10/95), 652 So.2d 701, 703. Review by the district court does not include a trial de novo. McCoy v. City of Shreveport, 42,662 (La.App. 2nd Cir.12/5/07), 972 So.2d 1178, 1182. The district court’s review is confined to the determination of whether the decision made by the Board was made in good faith for cause under the provisions of LSA-R.S. 33:2471-2508. LSA-R.S. 33:2501(E)(3). The district court may not substitute its opinion for that of the Board. The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. St. Tammany Parish Fire Protection Dist. No. 4 v. Picone, 10-0481 (La.App. 1st Cir.12/15/10), 53 So.3d 704, 706. Likewise, the intermediate appellate court’s review of a civil service board’s findings of fact are limited. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Moore v. Ware, 01-3341 (La.2/25/03), 839 So.2d 940, 946.

DISCUSSION

In oral reasons for judgment, the district court stated the following:

On October the 6th of 2009, the court remanded the matter back to the Board to provide written findings of fact as required by Revised Statute [33:2501(0(2)]. This court is of the opinion that the Board’s written reasons for judgment filed in the record of this matter, in response to the court’s order reflects more of a summation of the testimony and evidence that was presented at the appeal rather than the Board’s evaluation of that testimony and evidence. Nevertheless, the court takes the statement contained in those reasons that there is no indication that the Board did not believe the testimony of any witness as a finding by the Board that the testimony of every witness was truthful and accepted by the Board as fact. Taking this finding into account, a review of the record reveals that there is substantiated and competent evidence that supports the appointing authority’s grounds for the termination of Corporal O’Malley. The Chief testified that it was a totality of circumstances that led to his decision to terminate Corporal O’Malley. Chief LeDuff explained those circumstances to be his finding that Corporal O’Malley disregarded policy for use of force, truthfulness, and reporting requirements. The record in this matter establishes by a preponderance of the evidence that those circumstances existed. Even assuming that the Board found from the evidence that there was not a violation of the Department’s use of force policy as it related to Corporal O’Malley’s use of his taser gun, the evidence clearly establishes that Corporal O’Malley’s use of his flash light violated the Department’s force policy. The Corporal readily admitted this fact in his own testimony. His partner on the scene did as well. Even | ^assuming that the Board found that the force the Corporal applied on the suspect’s neck and throat area was as the Corporal described, poor technique rather than a choke hold, the Corporal’s own description of his maneuvers establishes his failure to perform his duties in a satisfactory manner. By Corporal O’Mal-ley’s own admission, he failed to disclose that his unit video camera was operating at the time of the incident. He even failed to engage his microphone.
* * *
Just as this court may not substitute its judgment for the judgment of the Board, the Board, likewise may not substitute its judgment for that of the appointing authority. A terse statement by a Board member that he believed Corporal O’Malley messed up, but doesn’t believe it was mean-spirited, standing alone, without any further deliberation by the Board, before the vote was taken, evidences the Board’s disregard and improper weighing of the evidence presented at the appeal hearing. The court concludes that the Board’s decision was not in good faith and for cause. [Its] decision to modify the discipline imposed by the appointing authority is, therefore, reversed and the termination of Corporal Charles O’Malley is reinstated.

This court has reviewed the record of the proceedings before the Board and we conclude that the evidence supports the decision of the 19th JDC to reinstate the termination decision of the Department. The Board agreed that the Department had good cause for taking disciplinary action, and O’Malley even admitted that Chief LeDuff was justified in imposing discipline under the circumstances. Moreover, the Board made no finding of bad faith on the part of the appointing authority; therefore, it was without authority to modify the Department’s actions. See LSA-R.S. 38:2501(C)(1). It is obvious from the Board’s very brief comments at the conclusion of the hearing, which the district court mentioned, as well as the Board’s written reasons, that it simply disagreed with the Department’s decision and found it was too harsh. Those written reasons state:

After hearing the evidence in this matter, the Board determined that the employee should be disciplined. However, the Board decided the discipline given by the Chief was too harsh under the circumstances.

Clearly, the Board merely substituted its judgment for that of the appointing authority, without the necessary findings. Therefore, we find that the district court used the correct standard of review and, although the Board was apparently acting in good faith, the court did not err in concluding that the Board’s decision was not made for cause. We further find the district court did not err in reinstating the Department’s decision to 17terminate O’Malley’s employment.

With regard to O’Malley’s argument that the Department did not carry its burden of proof that he used excessive force under the circumstances, we note that this was not the sole reason for the Department’s decision. Other factors mentioned by Chief LeDuff included his failure to accurately report the incident, including the number of times his taser was deployed; the failure to report that the incident was recorded by his in-car video camera; numerous inconsistencies in the written report he made following the incident and the later report he made after reviewing the videotape of the encounter; and his failure to follow departmental policies concerning the correct procedures to use in overcoming the resistance of a suspect. Therefore, we find no merit in this assignment of error.

Finally, although O’Malley suggests that the district court erred in failing to remand the matter to the Board with specific instructions concerning written findings of fact, the record shows that the court did remand the case for such findings. After receiving them, the district court had no obligation to remand the matter again for findings of fact that might be more explicit or articulate concerning the Board’s findings.

CONCLUSION

For the above reasons, we deny the writ, thereby maintaining the judgment of the 19th MC, which reversed the Board’s decision and reinstated the Department’s termination of O’Malley’s employment. All costs of this writ application are assessed against Charles O’Malley.

WRIT DENIED.

      . In Miazza v. City of Mandevilie, 10-0304 (La.5/21/10), 34 So.3d 849, the supreme court stated that when, as in this case, the legislature has vested appellate jurisdiction in the district court, the court of appeal lacks appellate jurisdiction, and should convert the appeal to an application for supervisory writs.

      . We note that, in light of the recent official federal census results, cases such as this one from Baton Rouge may no longer fall within the ambit of LSA-R.S. 33:2471-2508. See LSA-R.S. 33:2471.