author: KHOUZAM, Judge.

text:
    STATE of Florida, Appellant, v. Sharon Laverne McCULLOUGH, Appellee.
    No. 2D10-3180.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   KHOUZAM, Judge.

The State appeals from the trial court’s order granting Sharon Laverne McCullough’s motion to suppress evidence seized following her arrest. Because the search of McCullough’s car was illegal under the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), we affirm.

McCullough was arrested during a “warrant round-up.” The arresting officer executed the warrant after McCullough pulled into her private driveway. She had already exited her vehicle and locked her door when the officer approached her. After McCullough locked the vehicle door, the officer effectuated the arrest under the outstanding warrant by instructing her to put her hands behind her back for handcuffing. Before being handcuffed, McCullough threw her vehicle keys to her son, who entered the residence at which the car was parked. McCullough was then escorted into the patrol car “without incident.”

After the officer placed McCullough in his car, he again approached her vehicle and confirmed that it was locked. No evidence was presented that the officer could see any contraband or evidence of any crime inside the car. The officer then went to the door of the home and instructed McCullough’s son to give him the keys. After McCullough’s son complied with this instruction, the officer returned to the vehicle, unlocked it using McCullough’s key, and conducted a search inclusive of McCullough’s purse that was inside the car. The search revealed cash, marijuana, and cocaine inside McCullough’s purse.

McCullough filed a motion to suppress these items as well as any statements made, arguing that the officer did not have probable cause to search her car. At the hearing, no facts were presented regarding any underlying basis for the issuance of the warrant and the warrant itself was not even admitted into evidence. The only evidence presented was that the warrant had been issued four to five months prior to McCullough’s arrest for an alleged sale of cocaine. The trial court granted McCullough’s motion, finding the search of McCullough’s vehicle to be in violation of Gant because the lack of “independent corroborative evidence relating back to the underlying substantive offense” rendered it unreasonable to believe that her vehicle contained evidence of an offense allegedly committed months prior.

The State argues on appeal that because the offense underlying the outstanding arrest warrant was drug-related, it necessarily follows that a search of McCullough’s vehicle incident to that arrest was per se reasonable and no further analysis is appropriate. In support of this argument, the State points to Brown v. State, 24 So.3d 671, 677 (Fla. 5th DCA 2009), which “specifically rejected] Appellant’s argument that the search was not justified because there was no evidence, apart from the offense of arrest, connecting the crime to the vehicle.” But because Brown is factually distinguishable and its reasoning appears to be contrary to Gant, we decline to follow it.

Gant holds that “[pjolice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723. Because it is undisputed that McCullough was secured in handcuffs in the arresting officer’s patrol car when her car was searched, this case concerns only the second prong of Gant’s holding. Accordingly, the search can withstand constitutional scrutiny only if it was reasonable to believe McCullough’s vehicle contained evidence of the offense underlying her arrest.

The Bromi court interpreted Gant’s second prong to mean that the nature of the charge for which the defendant is arrested is “determinative of whether there exists a reasonable basis to search for evidence, not whether there is some independent evidence that gives rise to a belief that the particular vehicle contains evidence.” 24 So.3d at 678. Brown thus establishes two categories of crimes: those for which no evidence can be found within the vehicle, and those for which it is always reasonable to believe evidence may be found within the vehicle. Unfortunately, this analysis necessarily disregards the circumstances of the arrest and any other facts making it unreasonable to believe that the vehicle contains evidence of the arrest, so long as the offense itself is a type that “might yield physical evidence.” Id. at 681. Therefore, under Brown, the only fact relevant to the constitutionality of a search of a vehicle recently occupied by a now-secured arrestee is the charge itself.

If this reasoning is accurate, then an arrest warrant for a single sale of perishable contraband would authorize a search of the arrestee’s vehicle at any time, whether days, months, or even years later, despite the fact that it may not be reasonable to believe any evidence of the original illegal act remained. We do not believe this is what the Supreme Court envisioned when it explicitly conditioned the search of a secured arrestee’s vehicle on a reasonable belief that evidence of the underlying offense exists inside.

• McCullough’s warrant was issued four to five months prior to her arrest, and the record is devoid of any evidence whatsoever suggesting that the sale of cocaine she allegedly committed months before her arrest was still taking place or that the car was involved in that sale. Further, from his lawful standpoint outside the vehicle, the officer observed no contraband, weapons, or any other evidence which would support a reasonable belief that evidence from an offense committed at least four months prior — at an unknown location— would exist inside McCullough’s vehicle at the time of her arrest.

This lack of any information, beyond the mere existence of a warrant issued months prior, also distinguishes these facts from Brown, where the officer immediately observed a woman’s wallet on the seat of the car that the defendant, a male with two outstanding warrants for theft, had just been driving. If, as in Brown, the officer who arrested McCullough had observed something during the encounter making it reasonable to believe that evidence of the offense of arrest might be found in the vehicle, the outcome would be different. But because no such evidence was presented, the search was unreasonable under Gant.

The order granting McCullough’s motion to suppress is affirmed, and to the extent the reasoning of this opinion conflicts with Brown, we certify conflict.

Affirmed.

WHATLEY and BLACK, JJ., Concur.

      . We note that this is not the first court to disagree with the reasoning employed in Brown. See U.S. v. Reagan, 713 F.Supp.2d 724, 732 (E.D.Tenn.2010) (specifically "disagreeing] with the Brown interpretation of Gant").

      . Notably, the Brown court did not rely on this fact in reaching its conclusion, instead focusing on the "nature of the charge” analysis described above.


source: Caselaw Access Project

author: FERNANDEZ, KIMBERLY K., Associate Judge. KHOUZAM, Judge,

license: Public Domain

text:
    CITY OF VENICE, Petitioner, v. Martha L. GWYNN, Respondent.
    No. 2D10-5696.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.

      Hala Sandridge of Fowler White Boggs, P.A., Tampa, for Petitioner.
    Martha L. Gwynn, pro se.
   FERNANDEZ, KIMBERLY K., Associate Judge.

The City of Venice seeks certiorari review of an order of the circuit court sitting in its appellate capacity which declared a city ordinance unconstitutional as applied to Martha L. Gwynn’s property. At issue before the court was review of the Venice Code Enforcement Board’s order finding that Gwynn’s “nonconforming use” of the property violated the ordinance. We grant the City’s petition because the circuit court departed from the essential requirements of law in determining that the ordinance was unconstitutional as applied.

In 2009, the Venice City Council enacted Ordinance 2009-06 to amend various provisions in the City’s Land Development Code that control the use of residential property. See City of Venice, Fla., Code of Ordinances, ch. 86, art. V, Div. 3 (2009). The amendments to the code prohibited owners of single-family dwellings in residential neighborhoods from renting their property for short periods of time. See §§ 86 — 81(d), 86-151. According to the ordinance, owners of single-family dwellings may rent their property for a period of less than thirty days only three times in a calendar year unless they had complied with the preexisting use requirements of the ordinance prior to July 14, 2009, the effective date of the ordinance. To have “grandfathered in” short-term rental property, the property owner must have obtained “all of the applicable state and local registrations, licenses and/or permits, including, but not limited to all necessary tax registration and occupational licenses necessary for operation of such rentals.” § 86-570(b) (defining an “[e]xisting legal nonconforming resort dwelling”).

Gwynn purchased her property in 2004 for the purpose of renting it to seasonal visitors. Although she had been notified of the right to do so, Gwynn did not pursue the right to have her vacation rental property grandfathered in by attempting to meet the requirements of the ordinance. After the effective date of the ordinance, she continued to advertise her property as being available for lease for less than thirty days. As a result, the City of Venice Code Enforcement Board sent Gwynn a notice to cease advertising and operating her property as a resort dwelling. The Board then sent Gwynn a Notice of Hearing “concerning unabated violations of the City of Venice code Sec. 86-151, Resort Dwellings.”

At the hearing before the Board, Gwynn’s attorney specifically argued: “The narrow question that I see in terms of what’s before the council this morning is the issue of whether [Gwynn] is in violation. We are not here to discuss the issue of whether the ordinance is valid or not.” Gwynn admitted that she had at least three short-term rentals after the effective date of the ordinance and that she had not obtained the licenses required to be grandfathered in. Her attorney conceded that there had been several short-term rentals after July 14, 2009; however, he argued that because the rental agreements were made before the ordinance went into effect, Gwynn should not be found in violation of the ordinance. Based on the evidence before it, the Board found that Gwynn’s property was “not a legal nonconforming resort dwelling” and that she had violated the ordinance. The Board ordered her to “come into compliance by not renting [the property] for periods of less than thirty (30) days for the remainder of 2009.”

Gwynn appealed the Board’s decision to the circuit court. In her initial brief, Gwynn argued that the ordinance was unconstitutional on its face and unconstitutional as applied to her property because it constituted a governmental “taking” of her property without just corn-pensation. Gwynn argued that the ordinance’s prohibition on short-term rentals substantially interfered with her rightful use of and reasonable expectation for her property without substantial advancement of any legitimate governmental interest. The City responded that although the ordinance interfered with Gwynn’s desire to use her property for short-term rentals, the application of the ordinance to her property did not constitute a compensable taking when other economically viable uses of the property remained.

The circuit court, acting in its appellate capacity, rejected Gwynn’s argument that the ordinance was unconstitutional on its face but held that the ordinance was unconstitutional as applied and could not be enforced against Gwynn’s property. It is from this order that the City seeks second-tier certiorari review in this court. We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(B).

When reviewing an administrative action, “the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.” City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). At the second appellate level, this court’s inquiry is limited to whether the circuit court provided procedural due process and whether it departed from the essential requirements of the law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); see also United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So.3d 60, 63 (Fla. 3d DCA 2009) (“A departure from the essential requirements of law is equivalent to a failure to apply the correct law.”). The City has not alleged that it was deprived of due process by the circuit court; accordingly, we limit our review to whether the circuit court departed from the essential requirements of the law in finding the ordinance unconstitutional as applied to Gwynn.

A use restriction on real property may constitute a taking “if it has an unduly harsh impact on the owner’s use of the property.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). When engaging in an analysis of whether a regulation unconstitutionally interferes with a property owner’s rights, a court must consider: (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the government invasion. Id. at 124, 98 S.Ct. 2646; see also Shands v. City of Marathon, 999 So.2d 718, 723 (Fla. 3d DCA 2008) (“The standard of proof for an as-applied taking is whether there has been a substantial deprivation of economic use or reasonable investment-backed expectations.”). When considering the issue of economic impact, the court must conduct “a fact-intensive inquiry of the impact of the regulation on the economic viability of the landowner’s property by analyzing permissible uses before and after the enactment of the regulation.” Taylor v. Vill. of N. Palm Beach, 659 So.2d 1167, 1171 n. 1 (Fla. 4th DCA 1995). This includes a comparison of “the value that has been taken from the property with the value that remains in the property.” Leon Cnty. v. Gluesenkamp, 873 So.2d 460, 467 (Fla. 1st DCA 2004). A party challenging the constitutionality of a regulation has the burden to establish that he or she has suffered significant financial loss from the imposition of the regulation. Id. (citing Bass Enters. Prod. Co. v. United States, 54 Fed.Cl. 400, 403 (Fed.Cl.2002)).

In its order, the circuit court concluded that the ordinance had a significant economic impact on Gwynn by restricting the duration and frequency of rental periods and that it interfered with Gwynn’s “expectation that she could rent the property to seasonal visitors.” Although the court noted the factors announced by the Supreme Court in Penn Central, the court’s order failed to apply the economic impact factor. Limited by the record established at the hearing before the Municipal Enforcement Board, the circuit court was hindered in its ability to engage in any meaningful analysis of the value of Gwynn’s property before and after the enactment of the ordinance. In focusing on Gwynn’s denied expectations for the use of her property, the court failed to recognize record evidence that Gwynn’s property had continued value as a monthly rental, as a short-term rental for three periods, or as investment property which could be sold. See Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1072-73 (11th Cir.1996) (“The standard is not whether the landowner has been denied those uses to which he wants to put his land; it is whether the landowner has been denied all or substantially all economically viable use of his land.”). The circuit court focused on Gwynn’s loss of the potential rentals available before the enactment of the ordinance but did not weigh this loss with the property’s value based on the residual uses after the enactment. By failing to weigh the before and after values of the property, the circuit court did not determine the economic impact of the ordinance on the property owner as required by Penn Central and its progeny; this was a departure from the essential requirements of the law.

Accordingly, we grant the petition, quash the order of the circuit court, and reinstate the order of the Venice Code Enforcement Board.

Petition granted.

DAVIS, J., Concurs.

KHOUZAM, J., Concurs specially.

KHOUZAM, Judge,

Specially concurring.

Certiorari is appropriate where “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). A miscarriage of justice can result when the court disregards clearly relevant facts in coming to a decision. Because this occurred here, I concur with the majority.

      . Section 86-570(b) defines a “resort dwelling” as
      any one, two, three or four-family dwelling unit located in the RE or RSF zoning district which is rented to guests more than three times in a calendar year for periods of less than 30 days or one calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests for periods of less than 30 days or one calendar month, whichever is less.

      . Gwynn was not in violation of the ordinance for rental agreements she had entered into for 2010 because the agreements were for monthly rentals.

      . A regulation may be challenged as unconstitutional on its face or unconstitutional as applied. A facial challenge contends that the regulation on its face, as enacted, constitutes a taking. Taylor v. Vill. of N. Palm Beach, 659 So.2d 1167, 1170 (Fla. 4th DCA 1995). An as-applied challenge evaluates the impact of the application of a regulation on a particular parcel of land. Id. at 1170-71.

      . Section 162.11, Florida Statutes (2009), authorizes an aggrieved party to appeal a final administrative order to the circuit court. Such an appeal is not “a hearing de novo but shall be limited to appellate review of the record created before the enforcement board.” For appeals under this section, the circuit court is the proper forum to address constitutional claims. Wilson v. Cnty. of Orange, 881 So.2d 625, 632 (Fla. 5th DCA 2004); Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001) (citing Holiday Isle Resort & Marina Assocs. v. Monroe Cnty., 582 So.2d 721, 721-22 (Fla. 3d DCA 1991)).

      . As the party bearing the burden of showing the ordinance was unconstitutional as applied, Gwynn was required to prove that the market value of her property had decreased or that she had been economically impacted by the enforcement of the ordinance. See Gluesenkamp, 873 So.2d at 467.


author: PER CURIAM.

text:
    Anthony G. DYER, Appellant, v. Dawn M. DYER, Appellee.
    No. 2D11-1598.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.
    Johnnie B. Byrd, Jr., of Byrd & Barn-hill, P.L., Plant City, for Appellant.
    Rose A. Tapia of Rardon & Associates, Tampa, for Appellee.
   PER CURIAM.

Anthony Dyer appeals from an amended final judgment of injunction for protection against domestic violence with minor children. Appellee Dawn Dyer concedes that the judgment should be reversed based on the grounds raised in the initial brief. We therefore reverse and remand for the trial court to vacate the amended final judgment of injunction for protection against domestic violence with minor children.

ALTENBERND, CASANUEVA, and WALLACE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Barry E. SCHLUMPF, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4268.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.
    Rehearing Denied February 1, 2012.
    Barry E. Schlumpf, pro se.
   ALTENBERND, Judge.

Barry E. Schlumpf appeals the circuit court’s order denying his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The court denied this motion without prejudice because it appeared to repeat a claim that previously had been denied without prejudice to Mr. Schlumpf s right to file a timely and facially sufficient motion under rule 3.850. We affirm.

Despite his two failed attempts to state a claim, we note that Mr. Schlumpf may have a meritorious claim for additional jail credit that he has not alleged with sufficient clarity for the circuit court to understand. While on probation for offenses committed in Charlotte County, ' Mr. Schlumpf was allegedly arrested for new offenses in Orange County in May 2009. An affidavit of violation of probation was filed in Charlotte County and an arrest warrant was issued for this violation. However, Mr. Schlumpf was not transferred to Charlotte County until late December 2009. He was first arrested on the outstanding warrant when he arrived in Charlotte County. When sentenced on revocation of probation, the trial court did not give Mr. Schlumpf any jail credit for the time spent in the Orange County jail.

In resolving both postconviction motions, the circuit court has relied on Gethers v. State, 838 So.2d 504 (Fla.2003). It believes that Mr. Schlumpf is not entitled to jail credit for the period between May and December 2009 because he was not actually arrested on the warrant until December. From our limited record, however, it is possible that Mr. Schlumpf was never convicted of any offenses in Orange County, that he never received any jail credit in Orange County for his stay in its jail, and that the Orange County offenses were the sole basis for the revocation of probation in Charlotte County. If that is the case, Mr. Schlumpfs claim for additional jail credit may have merit. See Kendrigan v. State, 941 So.2d 529 (Fla. 4th DCA 2006).

The records and evidence necessary to establish this claim are not in the Charlotte County court file. Thus, Mr. Schlumpf cannot make this claim under rule 3.800(a). See Ericson v. State, 932 So.2d 311, 311 (Fla. 2d DCA 2006). He must allege this claim under oath in a motion filed pursuant to rule 3.850. He still has enough time to file a timely motion if he does not delay. Accordingly, we affirm without prejudice for Mr. Schlumpf to file a timely and facially sufficient motion under rule 3.850.

Affirmed.

KHOUZAM and MORRIS, JJ., concur.


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Alphonse Olando GALLO, Appellee.
    No. 2D10-5394.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    Christopher E. Cosden of The Wilbur Smith Law Firm, Fort Myers, for Appel-lee.
   CASANUEVA, Judge.

The State appeals the trial court’s determination that Alphonse Olando Gallo was entitled to immunity from prosecution for the second-degree murder of Patrick Barbour. We affirm.

Mr. Barbour’s unfortunate death resulted from events reminiscent of the “Shootout at the OK Corral.” At around 2:30 in the morning, Mr. Gallo and Mr. Barbour confronted each other outside of a busy night club in the Newtown area of Sarasota. They argued regarding a debt that Mr. Barbour owed Mr. Gallo. As tempers flared the argument became more physical. Eventually the minor tussling stopped and more serious threats began. The situation reached a climax, breaking out into a gunfight between at least four men in the middle of the street. Men were ducking behind cars and firing over their shoulders as they ran for cover. An officer nearby heard several of the shots and arrived at the scene quickly. When he arrived, he found Mr. Barbour on the ground in the middle of the street suffering from multiple gunshot wounds. The officer ran back to his car to collect medical equipment, but a large, hostile crowd surrounded Mr. Barbour and prevented the officer from returning to render aid. Mr. Barbour succumbed to his injuries. By the time law enforcement could secure the area, there was no sign of any of the firearms. However, law enforcement discovered twenty-six shell casings of four different types in the vicinity.

Charged with the second-degree murder of Mr. Barbour, Mr. Gallo filed a motion seeking immunity from prosecution pursuant to section 776.032, Florida Statutes (2009), commonly known as the “Stand Your Ground” law. The legislature passed the law that created this section because it determined “that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.” Ch. 05-27, at 200, Laws of Fla. Section 776.032 provides that, in certain circumstances, a person may use deadly force to stand his ground against an attacker and be free from the fear of prosecution. The statute effectively “grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial.” Dennis v. State, 51 So.3d 456, 462 (Fla.2010).

In this case the trial judge held an evidentiary hearing, made determinations of credibility, weighed the numerous pieces of conflicting evidence, and set forth extensive factual findings in a nine-page written order. Based upon the preponderance of the evidence, the trial judge ruled that Mr. Gallo was immune from prosecution because he had used deadly force in the manner statutorily authorized by section 776.082. We find no error in the trial court’s procedures, and its factual findings were supported by substantial, competent evidence.

The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders. In this case, that burden required the trial judge to make order out of the chaos that occurred in Sarasota on one fateful night in 2010. The trial judge performed that duty without legal error. Accordingly, we affirm.

ALTENBERND and DAVIS, JJ., Concur.

      . This Day in History; Shootout at the OK Corral, History com, http://www. history.com/this-day-in-history/shootout-at-the-ok-corral (last visited Nov. 30, 2011).

      . This court has previously held that this is the appropriate standard of proof for "Stand Your Ground” motions. See Montanez v. State, 24 So.3d 799, 802 (Fla. 2d DCA 2010); Horn v. State, 17 So.3d 836, 839 (Fla. 2d DCA 2009); see also Peterson v. State, 983 So.2d 27, 28 (Fla. 1st DCA 2008).


author: ROTHENBERG, J.

text:
    B.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1353.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2012.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Erik D. Kverne, Certified Legal Intern, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   CONFESSION OF ERROR

ROTHENBERG, J.

B.J., a juvenile, appeals the trial court’s order adjudicating him delinquent as to the sole offense charged — resisting an officer without .violence in violation of section 843.02, Florida Statutes (2011). Based on the State’s proper confession of error and this Court’s independent review, we reverse. The record reflects that the State failed to present any evidence which would legally justify the stop of B.J.

Reversed.


text:
    Zebedee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0048.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2012.
    Nancy A. Daniels, Public Defender; Steven L. Seliger and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

A defendant has a constitutional right to be present at a restitution hearing unless the defendant knowingly, voluntarily, and intelligently waives that right. See Knespler v. State, 72 So.3d 299, 300 (Fla. 4th DCA 2011). In the instant case, because he was not present at the restitution hearing and because there is nothing in the record to suggest he waived his right to be present, the appellant is entitled to a new restitution hearing. See id. Accordingly, we REVERSE and REMAND with directions to the trial court to hold a new restitution hearing.

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    Stanley Lee WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1220.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2012.
    Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., and David A. Davis, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s revocation of his probation, arguing the trial court abused its discretion by finding he violated his probation based on four contacts with a minor outside the presence of another adult, and also that the trial court improperly revoked his probation based solely on hearsay evidence. We find merit in Appellant’s argument as to two of the four contact violations. We find no merit in the remainder of Appellant’s contentions.

Appellant pled nolo contendere in 2001 to two counts of lewd, lascivious, or indecent assault or act upon or in the presence of a child and one count of sexual performance by a child. One of the requirements of Appellant’s probation was that he have no contact with a child under the age of 18 without the presence of another adult. Appellant’s probation officer testified at the violation of probation hearing that, when confronted with his prior statements in the context of a polygraph examination, Appellant acknowledged four incidents of contact with a child under age 18. We address only the two incidents that we hold did not constitute a willful and substantial violation of this probation requirement.

In one instance, Appellant was at church getting in an elevator when a minor approached him and asked him a question. In the other instance, Appellant was unloading his vehicle when he was approached by a child relative. This was the extent of the State’s evidence as to these alleged violations. Although the trial court noted at the hearing that these two encounters were incidental and not initiated by Appellant, the court found they were willful and substantial violations of the prohibition against contact with children without the presence of another adult.

“To establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 814, 816 (Fla. 1st DCA 1996). Based on the record before us, the State did not prove either a willful or substantial violation by a preponderance of the evidence, and the trial court abused its discretion by finding these two contacts violated this condition of Appellant’s probation.

As noted, the trial court found the other two incidents were also willful and substantial violations. We find no abuse of discretion as to these findings. We remand, however, “for a determination by the trial court as to whether it would revoke Appellant’s probation based on [the remaining] violation[s] alone” and, if so, whether it would impose the same sentence. Smith v. State, 49 So.3d 833, 835 (Fla. 1st DCA 2010).

As for Appellant’s hearsay argument, no such objection was made below; thus, the issue was not preserved.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

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

      . Appellant does not challenge the trial court’s finding that his failure to pay his monthly monitoring fee was a willful and substantial violation of his probation.


text:
    Michael Ray BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2606.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2012.
    Michael Ray Baker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the July 2, 2009, judgment and sentence in Santa Rosa County Circuit Court case number 06-1886-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

LEWIS, ROWE, and RAY, JJ., concur.


text:
    Maurice C. GILCHRIST, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-432.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 2012.
    Maurice C. Gilchrist, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Upon the State’s proper confession of error, we reverse the order denying the defendant’s Rule 3.800(a) motion for additional credit for time served. On remand, the trial court shall enter an amended sentencing order awarding the defendant 319 days credit for time served, as reflected on the Sheriffs Certificate. We instruct the trial court to expedite the amendment of the sentence and the submission of the amended sentence to the defendant and the Department of Corrections.

Reversed and remanded.


text:
    J.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2215.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 2012.
    Carlos J. Martinez, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ and ROTHENBERG, JJ.
   CONFESSION OF ERROR

ROTHENBERG, J.

J.J., a juvenile, appeals the trial court’s order finding him delinquent for attempted battery on a law enforcement officer and withholding adjudication. Upon the State’s proper confession of error, and on the binding authority of Merritt v. State, 712 So.2d 384, 385 (Fla.1998); J.S. v. State, 925 So.2d 438 (Fla. 5th DCA 2006); and Brown v. State, 798 So.2d 827 (Fla. 3d DCA 2001), we reverse and remand with instructions to vacate the order of delinquency for attempted battery on a law enforcement officer and to issue an order finding J.J. delinquent as to attempted battery, a second degree misdemeanor. Section 784.07(2), Florida Statutes (2011), is an enhancement statute which increases the penalties for certain enumerated crimes when the victim is a law enforcement officer. Because attempted battery is not one of the enumerated crimes, attempted battery on a law enforcement officer is a nonexistent offense.

Although we note that J. J. failed to raise this argument below and therefore failed to put the trial court on notice regarding the law on this issue, a conviction for a nonexistent offense is fundamental error, see State v. Klayman, 835 So.2d 248, 254 (Fla.2002), receded from on other grounds, State v. Barnum, 921 So.2d 513 (Fla.2005); Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006), which may be raised for the first time on appeal, see Moore v. State, 982 So.2d 1205, 1206 (Fla. 5th DCA 2008).

Reversed and remanded with instructions.


text:
    LOUISIANA HEALTHCARE CONNECTIONS, INC., et al. v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2011-CC-2361.
    Supreme Court of Louisiana.
    Nov. 2, 2011.
   \]ORDER

Granted. Under the unique circumstances of this case, the trial court did not abuse its discretion in staying the effect of its judgment for forty-five days to permit relators to appeal. Accordingly, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.

/s/ Jeffrey P. Victory /s/ Justice, Louisiana Supreme Court

KNOLL, J., would deny.


text:
    LOUISIANA HEALTHCARE CONNECTIONS, INC., et al. v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2011-CC-2363.
    Supreme Court of Louisiana.
    Nov. 2, 2011.
   _Jj()RDER

Granted. Under the unique circumstances of this case, the trial court did not abuse its discretion in staying the effect of its judgment for forty-five days to permit relators to appeal. Accordingly, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.

/s/ Jeffrey P. Victory /s/ Justice, Louisiana Supreme Court

KNOLL, J., would deny.


text:
    LOUISIANA HEALTHCARE CONNECTIONS, INC., et al. v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2011-CC-2380.
    Supreme Court of Louisiana.
    Nov. 2, 2011.
   _JjORDER

Granted. Under the unique circumstances of this case, the trial court did not. abuse its discretion in staying the effect of its judgment for forty-five days to permit relators to appeal. Accordingly, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.

/s/ Jeffrey P. Victory /s/ Justice, Louisiana Supreme Court

KNOLL, J., would deny.


text:
    In re Mack Arthur HOLLIS.
    No. 2011-B-1337.
    Supreme Court of Louisiana.
    Dec. 14, 2011.
   ORDER

| iDuring the course of reviewing the record in this matter, we determined respondent testified to actions in connection with his preparation and notarization of a pauper affidavit on behalf of his clients which might constitute misconduct, but which have not been charged by the Office of Disciplinary Counsel. In the interest of due process, we find it appropriate to defer consideration of the charged misconduct pending investigation of the additional issues arising from respondent’s notarial actions. Accordingly,

IT IS ORDERED the matter be remanded to the Office of Disciplinary Counsel for additional investigation and institution of amended formal charges. The amended charges, together with the original charges, shall be heard by a hearing committee which shall issue a report making factual findings on both sets of charges. The disciplinary board shall then make a single recommendation to this court, reflecting both the original charges and amended charges.

WEIMER, J., dissents and assigns reasons.

CATHERINE D. KIMBALL, C.J., dissents for the reasons assigned by Justice WEIMER.

FOR THE COURT:

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

WEIMER, J., dissents.

11Because this matter was orally argued, I would address the conduct before the court.


text:
    In re Kerry D. BROWN.
    No. 2011-B-2748.
    Supreme Court of Louisiana.
    Dec. 15, 2011.
   ORDER

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

IT IS ORDERED that respondent, Kerry D. Brown, Louisiana Bar Roll number 27189, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

KIMBALL, C.J., not participating.

FOR THE COURT:

/s/ Greg G. Guidry /s/ Justice, Supreme Court of Louisiana


text:
    In re Charles L. McCOLLUM.
    No. 2011-OB-2491.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

|TOn his application to sit for the Louisiana Bar Examination, petitioner, Charles L. McCollum, disclosed numerous delinquent financial obligations. He also revealed his diagnosis of and treatment for substance dependence and depression. After petitioner successfully passed the bar exam, he filed a petition seeking admission to the bar, in which it was represented that he has taken steps to address his past-due debt. Petitioner further represented that he has maintained sobriety since 2009. Nevertheless, petitioner acknowledged that he did not execute a recovery agreement with the Lawyers Assistance Program (LAP) until July 15, 2011.

Our jurisprudence holds that an applicant suffering from substance dependence will not be considered for admission until he or she has demonstrated at least a one-year period of sobriety, has entered into a recovery contract with LAP, and has complied with the terms and conditions of that contract. Because petitioner has not satisfied these requirements, he is not eligible for admission at this time.

| 2Accordingly, it is ordered that the application for admission be and hereby is denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of his contract with the Lawyers Assistance Program. Furthermore, to address the concerns relating to his delinquent debt, if and when petitioner reapplies for admission, he must submit evidence demonstrating that he has made a good faith effort to satisfy his financial obligations.

ADMISSION DENIED.

       Chief Justice Kimball not participating in the opinion.

      . See, e.g., In re: James, 11-1131 (La.6/22/11), 66 So.3d 428; In re: Basinger, 10-2355 (La. 12/17/10), 50 So.3d 157; In re: Gulick, 09-0869 (La.5/15/09), 8 So.3d 555.

      . Petitioner has submitted some documentation to establish a period of sobriety prior to entering into his contract with LAP. However, this is insufficient to meet his burden of proof, as there is no objective evidence of a "rehabilitation procedure!] which include[s] random testing and consistent monitoring.” See In re: Gray, 11-0847, fn.1 (La.5/4/11), 60 So.3d 605.


text:
    STATE of Louisiana v. Dorance FLEMING.
    No. 2011-KK-1736.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   PER CURIAM.

| ,Writ granted. The ruling of the trial court granting the motion to suppress is reversed, and the motion to suppress is denied. The trial court erred in re lying on Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002). Based on the totality of the evidence presented at the hearing on the motion to suppress, the investigating officers had exigent circumstances to enter the structure located behind the residence after they observed: (1) marijuana smoked inside which was capable of being immediately destroyed; and (2) two guns (perhaps relating to the planned armed robbery described by the anonymous caller) creating a situation they had not yet figured out, thus justifying the need to take unquestioned command of the situation immediately. The case is remanded to the trial court for further proceedings.


text:
    In re Daryl A. GRAY.
    No. 2011-OB-2475.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

_[iAfter reviewing the evidence and considering the law, we conclude petitioner, Daryl A. Gray, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations. Should petitioner fail to make a good faith effort to satisfy his financial obligations, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    ANR PIPELINE COMPANY, Tennessee Gas Pipeline Company and Southern Natural Gas Company v. LOUISIANA TAX COMMISSION.
    No. 2011-C-2078.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ORDER

|, IT IS ORDERED that the above referenced applications be granted and consolidated for purposes of briefing and oral argument before this court.

LIT IS FURTHER ORDERED that while all issues raised in these applications shall be before the court, the parties are directed to focus on the following issue in their briefs to this court: “Whether the reassessment and refund process was part of the court-ordered remedy phase of the ongoing litigation in the 19th Judicial District Court and could only be reviewed pursuant to La. R.S. 47:1856, or whether the current proceedings represented “stand-alone” judicial review actions which may be brought pursuant to La. R.S. 47:1998?”

IT IS FURTHER ORDERED that in the exercise of our plenary supervisory jurisdiction pursuant to La. Const. Art. V, § 5(A), any and all court proceedings currently pending in this State from reassessments resulting from the decision in ANR Pipeline Co. v. Louisiana Tax Com’n, 2005-1142 (La.App. 1 Cir. 9/7/05), 923 So.2d 81, writ denied, 05-2372 (La.3/17/06), 925 So.2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006), be and hereby are stayed pending further orders of this court.

FOR THE COURT:

/s/ Jeffrey P. Victory /s/ Justice, Supreme Court of Louisiana


text:
    Michael H. MARTIN, in his capacity as Assessor for Lafourche Parish v. ANR PIPELINE CO., et al.
    No. 2011-C-2079.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ORDER

LIT IS ORDERED that the above referenced applications be granted and consolidated for purposes of briefing and oral argument before this court.

|2IT IS FURTHER ORDERED that while all issues raised in these applications shall be before the court, the parties are directed to focus on the following issue in their briefs to this court: “Whether the reassessment and refund process was part of the court-ordered remedy phase of the ongoing litigation in the 19th Judicial District Court and could only be reviewed pursuant to La. R.S. 47:1856, or whether the current proceedings represented “stand-alone” judicial review actions which may be brought pursuant to La. R.S. 47:1998?”

IT IS FURTHER ORDERED that in the exercise of our plenary supervisory jurisdiction pursuant to La. Const. Art. V, § 5(A), any and all court proceedings currently pending in this State from reassessments resulting from the decision in ANR Pipeline Co. v. Louisiana Tax Com’n, 2005-1142 (La.App. 1 Cir. 9/7/05), 928 So.2d 81, writ denied, 05-2372 (La.3/17/06), 925 So.2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006), be and hereby are stayed pending further orders of this court.

FOR THE COURT:

/s/ Jeffrey P. Victory /s/ Justice, Supreme Court of Louisiana


text:
    Gene BONVILLAIN, Assessor of Terrebonne Parish v. TENNESSEE GAS PIPELINE COMPANY, et al. (In re Appeal of ANR Pipeline Company).
    No. 2011-C-2193.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ORDER

LIT IS ORDERED that the above referenced applications be granted and consolidated for purposes of briefing and oral argument before this court.

L,IT IS FURTHER ORDERED that while all issues raised in these applications shall be before the court, the parties are directed to focus on the following issue in their briefs to this court: “Whether the reassessment and refund process was part of the court-ordered remedy phase of the ongoing litigation in the 19th Judicial District Court and could only be reviewed pursuant to La. R.S. 47:1856, or whether the current proceedings represented “stand-alone” judicial review actions which may be brought pursuant to La. R.S. 47:1998?”

IT IS FURTHER ORDERED that in the exercise of our plenary supervisory jurisdiction pursuant to La. Const. Art. V, § 5(A), any and all court proceedings currently pending in this State from reassessments resulting from the decision in ANR Pipeline Co. v. Louisiana Tax Com’n, 2005-1142 (La.App. 1 Cir. 9/7/05), 923 So.2d 81, writ denied, 05-2372 (La.3/17/06), 925 So.2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006), be and hereby are stayed pending further orders of this court.

FOR THE COURT:

/s/ Jeffrey P. Victory /s/ Justice, Supreme Court of Louisiana


text:
    In re Appeal of ANR PIPELINE CO., Mona Kelley, in her Official Capacity as Cameron Parish Tax Assessor v. ANR PIPELINE COMPANY, et al.
    No. 2011-C-2252.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ORDER

hIT IS ORDERED that the above referenced applications be granted and consolidated for purposes of briefing and oral argument before this court.

I,IT IS FURTHER ORDERED that while all issues raised in these applications shall be before the court, the parties are directed to focus on the following issue in their briefs to this court: “Whether the reassessment and refund process was part of the court-ordered remedy phase of the ongoing litigation in the 19th Judicial District Court and could only be reviewed pursuant to La. R.S. 47:1856, or whether the current proceedings represented “stand-alone” judicial review actions which may be brought pursuant to La. R.S. 47:1998?”

IT IS FURTHER ORDERED that in the exercise of our plenary supervisory jurisdiction pursuant to La. Const. Art. V, § 5(A), any and all court proceedings currently pending in this State from reassessments resulting from the decision in ANR Pipeline Co. v. Louisiana Tax Com’n, 2005-1142 (La.App. 1 Cir. 9/7/05), 923 So.2d 81, writ denied, 05-2372 (La.3/17/06), 925 So.2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006), be and hereby are stayed pending further orders of this court.

FOR THE COURT:

/s/ Jeffrey P. Victory /s/ Justice, Supreme Court of Louisiana


text:
    Geneva F. ODOM, in her Official Capacity as Assessor for East Carroll Parish v. SOUTHERN NATURAL GAS CO. and Tennessee Gas Pipeline Company. Deanna K. Smith, in her Official Capacity as Assessor for West Carroll Parish v. ANR Pipeline Company, Southern Natural Gas Company & Louisiana Tax Commission. Eddie Gatlin, in his Official Capacity as Assessor for Jackson Parish v. Southern Natural Gas Company and Tennessee Gas Pipeline Company.
    No. 2011-C-2266.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ORDER

LIT IS ORDERED that the above referenced applications be granted and consolidated for purposes of briefing and oral argument before this court.

|JT IS FURTHER ORDERED that while all issues raised in these applications shall be before the court, the parties are directed to focus on the following issue in their briefs to this court: “Whether the reassessment and refund process was part of the court-ordered remedy phase of the ongoing litigation in the 19th Judicial District Court and could only be reviewed pursuant to La. R.S. 47:1856, or whether the current proceedings represented “stand-alone” judicial review actions which may be brought pursuant to La. R.S. 47:1998?”

IT IS FURTHER ORDERED that in the exercise of our plenary supervisory jurisdiction pursuant to La. Const. Art. V, § 5(A), any and all court proceedings currently pending in this State from reassessments resulting from the decision in ANR Pipeline Co. v. Louisiana Tax Com’n, 2005-1142 (La.App. 1 Cir. 9/7/05), 923 So.2d 81, writ denied, 05-2372 (La.3/17/06), 925 So.2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006), be and hereby are stayed pending further orders of this court.

FOR THE COURT:

/s/ Jeffrey P. Victory /s/ Justice, Supreme Court of Louisiana


text:
    Kathryn BROUSSARD, in her Official Capacity as Assessor for Vermillion Parish v. SOUTHERN NATURAL GAS COMPANY.
    No. 2011-CC-2716.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ORDER

hIT IS ORDERED that the above referenced applications be granted and consolidated for purposes of briefing and oral argument before this court.

| ¡.IT IS FURTHER ORDERED that while all issues raised in these applications shall be before the court, the parties are directed to focus on the following issue in their briefs to this court: “Whether the reassessment and refund process was part of the court-ordered remedy phase of the ongoing litigation in the 19th Judicial District Court and could only be reviewed pursuant to La. R.S. 47:1856, or whether the current proceedings represented “stand-alone” judicial review actions which may be brought pursuant to La. R.S. 47:1998?”

IT IS FURTHER ORDERED that in the exercise of our plenary supervisory jurisdiction pursuant to La. Const. Art. V, § 5(A), any and all court proceedings currently pending in this State from reassessments resulting from the decision in ANR Pipeline Co. v. Louisiana Tax Com’n, 2005-1142 (La.App. 1 Cir. 9/7/05), 923 So.2d 81, writ denied, 05-2372 (La.3/17/06), 925 So.2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006), be and hereby are stayed pending further orders of this court.

FOR THE COURT:

/s/ Jeffrey P. Victory /s/ Justice, Supreme Court of Louisiana


text:
    In re Leslie R. LEAVOY, Jr.
    No. 2011-B-1824.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ORDER

| Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel, the response thereto filed by respondent, and the supplemental filings of the parties,

IT IS ORDERED that the petition for interim suspension be denied.

IT IS FURTHER ORDERED that respondent shall fully and completely adhere to all terms of the recovery agreement he executed with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent’s compliance with his recovery agreement and notify this court of any violation, which may be grounds for placing respondent on disability inactive status, or interim suspension, as appropriate.

FOR THE COURT:

/s/ Jeannette Theriot Knoll /s/ Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Charles FRANKLIN.
    No. 2011-KK-1909.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   PER CURIAM.

11 Granted. The ruling of the Fourth Circuit is reversed, the trial court’s order directing defendant to provide a buccal sample is reinstated, and this case is remanded for further proceedings consistent with the views expressed herein.

In this pending prosecution on three counts of first degree murder, the court of appeal has taken the position that the state may take a buccal sample from defendant for purposes of DNA testing if, and only if, it establishes that its evidence has produced an unknown DNA profile. State v. Franklin, 10-0564, p. 7 (La.App. 4th Cir.8/11/10), 46 So.3d 814, 817. Thus, although the state refined its motion by presenting a search warrant to the trial judge with a crime lab report attached indicating that the evidence, clothing taken from defendant’s residence in a prior search, contains blood and a single hair strand with follicle, which may be tested and which may yield a DNA profile, the court of appeal reversed the trial court’s ruling because “[t]he state has not yet developed a DNA profile from the seized clothing,” and, therefore, “the search warrant was not supported by probable cause.” State v. Franklin, 11-1076, p. 2 (La.App. 4th Cir.8/8/11).

|2The court of appeal erred. The collection of DNA from persons arrested and charged with a crime but not convicted is now a matter of comprehensive federal and state regulation, which authorize the taking of a DNA sample from arrestees and pre-trial detainees in the same routine manner as the taking of fingerprints and photographs, to identify the person by means of “an accurate, unique, identifying marker-in other words, as fingerprints for the twenty-first century.” United States v. Mitchell, 652 F.3d 387, 410 (3rd Cir.2011) (upholding the constitutionality of 42 U.S.C. § 14135a(a), authorizing the war-rantless collection of a DNA sample from persons who are arrested, facing charges, or convicted, and regulations by the Attorney General mandating collection of the sample, see 28 C.F.R. § 28.12(b)(2009)(“Any agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested, facing charges, or convicted.”) and 28 C.F.R. § 28.12(f)(2)(2009) (each agency required to collect the sample shall furnish the sample to the F.B.I. “for purposes of analysis and entry of the results of the analysis into the Combined DNA Index System.”)); see also La.R.S. 15:609(A)(1)(“A person who is arrested for a felony or other specified offense ... shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.”); La. R.S. 15:605 (establishing a state DNA data base administered by the state police to “provide DNA records to the FBI for storage and maintenance by CODIS [Combined DNA Index System].”); La.R.S. 15:612(0 (“The state police may create a separate population data base comprised of DNA samples obtained under this Chapter after all personal identification is removed.... The population data base may be made available to and searched by other agencies participating in the CODIS system.”); cf. State v. O’Hagen, 189 N.J. 140, 914 A.2d 267, 280 (2007)(“We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person .... no more | Sintrusive than the fingerprint procedure and the taking of one’s photograph that a person must already undergo as part of the normal arrest process.”).

We thus presume that the Louisiana State Police Crime Laboratory already possesses a sample of defendant’s DNA to which its CODIS DNA section has access for testing as part of a cooperative effort between state and federal authorities to develop a comprehensive identification data base. See LAC 55:1:1725 (“This information shall be forwarded on an audit form provided by the [Department [of [CJcorrections] to the CODIS DNA Unit on a daily basis_”). To this extent, the warrant for a second buccal sample issued by the trial judge in the present case directed defendant to submit a sample he was already required by law to provide without a warrant, as to which he could no longer have any reasonable expectation of privacy with respect to his identity after a grand jury found probable cause to indict him for the crimes and a magistrate found probable cause to continue him in custody following a preliminary examination conducted on March 15, 2010. Further, even assuming that a warrant is required to take another buccal sample from defendant for purposes of testing by the Crime Lab’s Forensic DNA Section as part of the effort to solve a particular crime, and not as a routine incident of booking, because collection of the sample, although minimally intrusive, nevertheless constitutes a search, State v. Lee, 05-2098, pp. 16-17 (La.1/16/08), 976 So.2d 109, 123-24, we agree with the state that it need show only a “fair probability” the sample may yield evidence to establish the requisite probable cause, not that the search will produce evidence probative one way or another on the question of guilt. Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (“ ‘The process does not deal with hard certainties, but with probabilities.’ ”) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Given probable cause that defendant participated in the charged crimes, it suffices that the state has established that its |4evidence, removed from defendant’s residence, contains recoverable biological samples that may, but not necessarily will, provide a DNA profile useful for forensic purposes.

REVERSED AND REMANDED

      . Kimball, C.J., not participating.


text:
    In re Erik Stafford PITTMAN.
    No. 2011-B-2203.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ¡This disciplinary matter arises from five separate sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Erik Stafford Pittman, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Pittman, 08-2658 (La.11/19/08), 994 So.2d 1277.

UNDERLYING FACTS AND PROCEDURAL HISTORY

07-DB-031

The Wallick Matter

In May 2005, respondent was appointed curator ad hoc to locate Jerald Wallick, an out-of-state resident whose minor son had been removed from the custody of his mother. After Mr. Wallick was located, respondent was appointed to represent him in the custody proceeding. Respondent spoke to Mr. Wallick prior to a November 2005 hearing in the case, but thereafter he failed to communicate with Mr. Wallick regarding the status and objectives of the case and failed to return Mr. Wallick’s telephone calls and messages. In December 2005, Mr. Wallick informed the court of the difficulties he had experienced in communicating with respondent. In turn, the court informed respondent of Mr. IgWallick’s dissatisfaction with the representation. However, respondent’s lack of communication with Mr. Wallick continued.

In February 2006, Mr. Wallick filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena for his sworn statement. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

Meanwhile, respondent continued to neglect the custody matter and continued in his failure to communicate with Mr. Wal-lick. Respondent also failed to appear for a review hearing in the custody matter. In September 2006, respondent became ineligible to practice law for failing to pay the disciplinary assessment, but he nevertheless did not withdraw from the representation of Mr. Wallick.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(a) (failure to withdraw from the representation of a client when the representation will result in violation of the rules of professional conduct or other law), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

07-DB-069

The Brooks Matter

In February 2004, Dorothy Brooks retained respondent to represent her in a sexual harassment suit. In April 2004, respondent advised Ms. Brooks that he had been contacted by opposing counsel to schedule a meeting. One year later, Ms. [aBrooks had heard nothing further and contacted respondent for an update regarding the status of her case. According to Ms. Brooks, respondent advised her that “these things take time.” In late 2006, Ms. Brooks contacted respondent again for an update and received the same reply.

Thereafter, respondent failed to communicate with Ms. Brooks and failed to return her telephone calls. He also took no action regarding the sexual harassment claim and failed to file suit on behalf of Ms. Brooks, causing her claim to be lost.

Sometime after September 2006, Ms. Brooks discovered that respondent had been declared ineligible to practice law. She twice attempted to contact respondent to request her file, to no avail.

In July 2007, Ms. Brooks filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.16(d), 8.1(c), and 8.4(a).

After the formal charges were filed in 07-DB-031 and 07-DB-069, respondent filed an answer admitting to the allegations and requesting a hearing in mitigation. The two matters were then consolidated by order of the hearing committee chair before proceeding to a mitigation hearing conducted by the committee in January 2008.

Prior to the hearing, respondent and the ODC entered into a joint stipulation of facts and rule violations. In this document, respondent stipulated to the facts as alleged by the ODC and admitted that he violated the Rules of Professional Conduct as charged in the Wallick and Brooks matters. During the mitigation hearing, respondent testified that his ability to concentrate on his law practice had been impacted by the death of his father, the health problems of his mother, and the | conclusion of a long-term relationship with his girlfriend. However, respondent admitted he had not sought counseling to assist him with these issues other than visiting his priest on one occasion. In any event, respondent testified that he did not intend to practice law for a period of time because he had decided to enlist in the United States Army in order to “straighten [his] life out” and “get out of the situation” he was in.

After considering the evidence and testimony presented at the hearing, the hearing committee accepted the rule violations as stipulated to by the parties and recommended that respondent be suspended from the practice of law for two years. Neither respondent nor the ODC filed an objection to the hearing committee’s report.

08-DB-08Í

The Tagliarino Matter

In October 2005, Kimberly Tagliarino paid respondent $750 to handle her husband’s succession. Respondent prepared pleadings to open the succession, but he did not file them and failed to communicate with Ms. Tagliarino.

In June 2008, Ms. Tagliarino filed a complaint with the ODC, setting forth the great stress and financial hardship she had suffered as a result of respondent’s three years of inaction. In response to the complaint, respondent stated that Ms. Tagliari-no would receive a refund of “the fee advanced with interest.” However, as of the date the formal charges were filed, Ms. Tagliarino had not received the promised refund.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5) (failure to refund an unearned fee), and 8.4(a).

| ¡¡Respondent failed to answer the formal charges filed in 08-DB-084. 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.

After considering the ODC’s deemed admitted submission, the hearing committee found that respondent accepted a $750 flat fee from Ms. Tagliarino to complete her husband’s succession. Respondent prepared pleadings to open the succession, but for some reason, he never filed the pleadings, nor did he refund the fee to Ms. Tagliarino. Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. For his misconduct, the committee recommended respondent be suspended from the practice of law for thirty days, fully deferred, subject to a six-month period of supervised probation with the condition that he make restitution to Ms. Tagliarino.

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

10-DB-0If3

The Lipoma Matter

In June 2007, Felix Lipoma paid respondent $1,995 to draft and complete an estate trust. In early 2008, Mr. Lipoma met with respondent to review a rough draft of the trust documents. Because the draft contained errors, respondent agreed to make the necessary corrections and finalize the documents at a later date. Thereafter, respondent failed to complete the trust, failed to communicate with Mr. | ¡-Lipoma, and failed to refund the unearned portion of the fee. Respondent also failed to advise Mr. Lipoma of his November 19, 2008 interim suspension. In 2009, Mr. Lipoma attempted to contact respondent and left messages for him, to no avail. Mr. Lipo-ma did not learn that respondent was suspended from the practice of law until 2010.

In March 2010, Mr. Lipoma filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.5(f)(5), 8.1(c), and 8.4(a).

10-DB-0U

The Miley Matter

In March 2007, respondent filed suit against BellSouth Telecommunications on behalf of his client, Rankin Miley, for injuries Mr. Miley sustained when he tripped over a cable extending across the ground from a telephone pole/junction box under repair. In September 2007, respondent issued a $200 check to the Livingston Parish Clerk of Court in the matter, but the check was returned unpaid due to insufficient funds in respondent’s bank account. Respondent took no further action of record in the case and allowed it to become abandoned.

During the course of the representation, respondent failed to properly communicate with Mr. Miley about the status of the case. According to Mr. Miley, he repeatedly attempted to contact respondent, but was mostly unsuccessful. On one occasion when Mr. Miley finally “caught” respondent at home, respondent advised that he had joined the military and returned Mr. Miley’s documents to him at that time.

|7In August 2010, Mr. Miley filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4, 8.1(c), 8.4(a), and 8.4(d).

Respondent failed to answer the formal charges filed in 10-DB-043 and 10-DB-074, which were consolidated for consideration by the hearing committee. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence. Once again, respondent filed nothing for the hearing committee’s consideration on the issue of sanctions.

After considering the ODC’s deemed admitted submission, the hearing committee determined that respondent failed to perform the work he had agreed to do for Mr. Lipoma, failed to refund the unearned portion of Mr. Lipoma’s fee, and failed to inform Mr. Lipoma that he had been suspended from the practice of law. Respondent also allowed Mr. Miley’s suit to become abandoned and did not inform Mr. Riley he had joined the armed forces until Mr. Riley “cornered” him at home. Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. For his misconduct, which the committee characterized as “a total disregard for his oath as a lawyer and his commensurate obligations to his clients,” the committee recommended respondent be permanently disbarred.

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

After the issuance of the three hearing committee reports as set forth above, the five sets of formal charges were consolidated by order of the disciplinary 18board. The board subsequently filed in this court a single recommendation of discipline encompassing all five sets of formal charges.

Disciplinary Board Recommendation

07-DB-081, 07-DB-069, 08-DB-08I, 10-DB-0Í3 & 10-DB-07U

After reviewing the consolidated matters, the disciplinary board adopted the findings and conclusions of the hearing committees. The board determined that the record supports a finding that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

Based on these findings, the board determined respondent knowingly, if not intentionally, violated duties owed to his clients, the legal profession, and the legal system, causing significant harm to his clients. The board was particularly disturbed by respondent’s statement during his mitigation hearing that he was joining the Army to let “someone else [deal] with things,” which indicated he does not have a true appreciation of his professional obligations or of the importance of rectifying the harm he has caused. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction for respondent’s misconduct is a suspension from the practice of law.

In aggravation, the board found 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, vulnerability of the victims, and indifference to making restitution. In mitigation, the board found the following factors: absence of a prior disciplinary record, personal or emotional problems, and inexperience in the practice of law (admitted 2008).

| ¡¡Turning to the issue of an appropriate sanction, the board recognized that in In re: Trichel, 00-1304 (La.8/31/00), 767 So.2d 694, the court established a one-year suspension as the baseline sanction for one instance of neglect of a client matter, failure to communicate with a client, and failure to properly terminate the client’s representation. However, given that respondent has engaged in multiple instances of such misconduct, the board felt a lengthier suspension is warranted in this case. Accordingly, given the totality of the circumstances, the board recommended respondent be suspended from the practice of law for three years. The board also recommended that respondent be ordered to pay restitution to his clients and refund all unearned fees.

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.

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 fees and properly terminate the representation of his clients, and failed to cooperate with the ODC in its investigations. In acting as he did, respondent violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record supports a finding that respondent knowingly violated duties owed to his clients, the legal system, and the legal profession. Respondent’s actions caused actual harm to his clients. The baseline sanction for this misconduct is a suspension from the practice of law.

In addition to the aggravating factors found by the board, we find the aggravating factor of refusal to acknowledge the wrongful nature of the conduct is present. We further agree with the board’s analysis of the factors in mitigation.

Turning to the issue of an appropriate sanction, we note that in our prior cases, we have imposed a wide range of sanctions for varying degrees of neglect, failure to communicate, failure to return unearned fees, and failure to cooperate l^with the ODC. However, in cases that involve several clients, we have generally imposed lengthy suspensions from the practice of law, with no portion of the suspension deferred, up to disbarment. The facts of one such case appear to be very similar to those of the instant case. In In re: Brown, 04-1119 (La.1/14/05), 892 So.2d 1, the attorney neglected the legal matters of five clients, failed to communicate with his clients, failed to return unearned legal fees owed to two clients, failed to safeguard one client’s property, and failed to cooperate with the ODC, causing actual injury to his clients. Finding that Mr. Brown “demonstrated in a convincing fashion that he has no regard for the welfare of his clients or for his professional obligations,” we imposed a three-year suspension. We find a similar sanction is warranted in the instant matter.

Accordingly, we will accept the recommendation of the disciplinary board and suspend respondent from the practice of law for three years. This suspension shall be retroactive to the date of respondent’s interim suspension. We will also order respondent to pay restitution to his clients subject of the formal charges.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Erik Stafford Pittman, Louisiana Bar Roll number 28722, be and he hereby is suspended from the practice of law for a period of three years, retroactive to November 19, 2008, the date of his interim suspension. It is further ordered that respondent pay restitution to his clients subject of the formal charges. All costs |;aand 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 board assigned this factor very little weight, as the record does not establish a direct connection between respondent's personal problems (the death of his father, his mother’s health problems, and the conclusion of a long-term relationship with his girlfriend) and his misconduct.

      . See, e.g., In re: Wharton, 03-1816 (La. 10/17/03), 872 So.2d 459 (three-year suspension; seven clients); In re: Watley, 03-0233 (La.9/5/03), 854 So.2d 315 (disbarment; six clients); In re: Turissini, 03-0549 (La.6/6/03), 849 So.2d491 (three-year suspension; six clients).

      . We have historically chosen to exercise our discretion to make suspensions run retroactive to the date of prior interim suspensions. See, e.g., In re: Miller, 09-2680 (La.5/21/10), 34 So.3d 839; In re: Sterling, 08-2399 (La. 1/30/09), 2 So.3d 408; In re: Lacobee, 03-2010 (La.2/20/04), 866 So.2d 237; In re: Gaudin, 00-2966 (La.5/4/01), 785 So.2d 763; In re: Ferrouillet, 99-3434 (La.6/30/00), 764 So.2d 948; In re: Edwards, 99-1783 (La. 12/17/99), 752 So.2d 801.


text:
    STATE of Louisiana v. Matthew PALUMBO and Dorothy Litell.
    No. 2011-KK-2523.
    Supreme Court of Louisiana.
    Nov. 21, 2011.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Div. A, No. 503-955; to the Court of Appeal, Fourth Circuit, No. 2011-K-1423.

Denied. The writ was not timely filed in the court of appeal.


text:
    AYMOND DEVELOPMENT, L.L.C. v. HIGHLAND OAKS ESTATES HOMEOWNERS ASSOCIATION, INC. and Susan Estapa.
    No. 2011-OC-2576.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Aymond Development, L.L.C.;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 201015449; to the Court of Appeal, First Circuit, No. 2011 CA 0944.

Writ Denied.


text:
    Mildred JONES v. NEXT GENERATION HOMES, LLC and Recovery Development Group, LLC.
    No. 2011-CC-2401.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Jones, Mildred; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2009-0942; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0407.

Denied.


text:
    Mamie H. TURNER v. The LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2011-CC-2276.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Louisiana Citizens Property Insurance Corporation; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2009-7621; to the Court of Appeal, Fourth Circuit, No. 2011-C-1099.

Denied.


text:
    David O. DAUME v. John T. PARKER, et al.
    No. 2011-CC-2265.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Daume, David O.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2011-4017; to the Court of Appeal, Fourth Circuit, No. 2011-C-1350.

Denied.


text:
    Sandra WOODARD, et al. v. The HARTFORD INSURANCE COMPANY and Baton Rouge Marine Institute, Inc.
    No. 2011-C-2264.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Baton Rouge Marine Institute Inc. et al.; Hartford Insurance Company; — Defendants); Applying For Writ of Certiora-ri and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 548,012; to the Court of Appeal, First Circuit, No. 2011 CA 0190.

Denied.


text:
    Mark E. PEROT v. Yulonda PEROT.
    No. 2011-C-2263.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Perot, Mark E.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Claiborne, 2nd Judicial District Court Div. C, No. 37,339; to the Court of Appeal, Second Circuit, No. 46,431-CA.

Denied.


text:
    STATE of Louisiana in the Interest of A.D.
    No. 2011-CK-1197.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re State of Louisiana; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 2011-020-05DQ-F; to the Court of Appeal, Fourth Circuit, No. 2011-C-0300.

Writ granted. A defendant has no right to an unredacted police report containing witnesses’ identifying information unless he demonstrates a “distinctive reason why fundamental fairness dictates discovery of the names of these witnesses.” State v. Weathersby, 09-2407 (La.3/12/10), 29 So.3d 499, 501. No such showing has been made in the present case. In light of the State’s provision of this witness list and the State’s light redaction of the police narrative, and in the absence of any peculiar circumstances requiring disclosure, we find that there is no basis to order the provision of the unredacted document or to conduct an in camera hearing. The judgments of the lower courts are reversed, vacated, and set aside, and the matter is remanded to the juvenile court for further proceedings.


text:
    In re Dashawn P. HAYES.
    No. 2011-OB-2342.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Hayes, Dashawn P.; — Plaintiff; Applying For Admission.

Admission granted.


text:
    STATE ex rel. Lamar SANDERS v. STATE of Louisiana.
    No. 2011-KH-0226.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Sanders, Lamar; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 02-09-0654; to the Court of Appeal, First Circuit, No. 2010 KW 1580.

Granted. As previously directed by the First Circuit Court of Appeal, the district court is ordered to provide relator with a copy of the transcript of his Boykin examination, bill of information/indictment, and commitment order in Case No. 02-09-0837, if it has not already done so. Relator further shows that on April 17, 2010, the Clerk of Court for the 19th Judicial District Court referenced both Case Nos. 02-09-0654 and 02-09-0887 in the notice that his motion for production of documents had been denied. Although some confusion apparently exists as to whether relator’s motion was filed into the record in Case No. 02-09-0654, the district court is ordered to provide relator with a copy of the transcript of his Boykin examination, bill of information/indictment, and commitment order in Case No. 02-09-0654. The district court is also ordered to provide relator with copies of the minute entries relating to the proceedings conducted in Case Nos. 02-09-0654 and 02-09-0837. State ex rel. Simmons v. State, 93-0275 (La.12/16/94), 647 So.2d 1094. In addition, the district court is directed to provide this Court with a copy of the letter of transmittal.


text:
    STATE ex rel. Shannon ALEXANDER v. STATE of Louisiana.
    No. 2011-KH-0727.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Alexander, Shannon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 96-1508; to the Court of Appeal, Fifth Circuit, Nos. 09-WR-536,10-KH-104.

Granted. Leave is hereby granted the Court of Appeal, Fifth Circuit to withdraw its order of recusal from the consolidated criminal writ applications in 09-WR-0536, 10-KH-0104, and ll-KH-727, and the applications are transferred back to the court of appeal for consideration according to the procedures approved by this court in State v. Cordero, 08-1717 (La.10/3/08), 993 So.2d 203

WEIMER, J., dissents.

See reasons assigned in State v. Cordero, 08-1717 (La.10/3/08), 993 So.2d 203.


text:
    Charles H. THIBODEAUX v. CLECO CORPORATION.
    No. 2011-CD-2191.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Thibodeaux, Charles H.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, Slidell City Court, No. 2006 C 2196.

Granted for the sole purpose of transferring the application to the court of appeal for its consideration pursuant to La. Const, art. V, Section 10(A). See La.Sup.Ct. Rule X, Section 5(b)(b); see also Bradley v. Hostead, 03-1256 (La.9/5/03), 852 So.2d 1038.


text:
    TEXANS CREDIT UNION v. LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY, Louisiana State Cypress, LLC, Louisiana State Market Commission and Louisiana Agricultural Finance Authority.
    No. 2011-C-1482.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Louisiana Department of Agriculture and Forestry and Louisiana Agriculture Finance Authority — Defendants; Applying for Reconsideration of this Court’s action dated October 14, 2011; Parish of East Baton Rouge, 19th Judicial District Court Div. F, No. 583476, to the Court of Appeal, First Circuit, No. 2010 CA 1476.

Not considered. See Supreme Court Rule IX, Section 6.


text:
    STATE of Louisiana v. Marcus James JASON.
    No. 2009-K-1257.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
   In re Jason, Marcus James; — Plaintiff; Applying for Reconsideration of this Court’s action dated January 29, 2010; Parish of Evangeline, 13th Judicial District Court Div. B, No. 73686-FB; to the Court of Appeal, Third Circuit, No. 08-1319.

Denied.