text:
    Mavrick JOHNSON, Michael Coker, Michael Weaver, Ursula Freeman, Jimmie Gordon, Tammy Lee Barrett, Franklin Lonzo Sheppard, Narcisco Alberto Ayala, Kevin Andrews, Samantha Rivera, Mikkel Francis Basey, Niko McKenzie, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-4193, 5D11-4194, 5D11-4195, 5D11-4196, 5D11-4197, 5D11-4198, 5D11-4199, 5D11-4233, 5D11-4234, 5D11-4235, 5D11-4236, 5D11-4238.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kerin Mary SWEENEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D11-4138, 5D11-4140, 5D11-4141.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in each of these consolidated cases is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandates will be withheld pending final disposition of Adkins.

MONACO, TORPY and EVANDER, JJ., concur.


text:
    Stacey Rae SANBORN, Eleanor C. Passarella, Evan Michael Dubman, Terry Ray Kent, Quentin Ledale Pursley, John Patrick Gray, Jr., Shannon Rose Dolan, Christopher T. Foster, Bobbie J. Aldridge, Adalberto Lopez, Jeffrey D. Palmer, Appellants. v. STATE of Florida, Appellee.
    Nos. 5D11-3881, 5B11-4054, 5D11-4207, 5D11-4208, 5D11-4209, 5D11-4210, 5D11-4211, 5D11-4294, 5D11-4295, 5D11-4296, 5D11-4413, 5D11-4416.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in each of these consolidated cases is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandates will be withheld pending final disposition of Adkins.

MONACO, TORPY, and EVANDER, JJ., concur.


text:
    James Micah BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3853.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

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


author: GRIFFIN, J.

text:
    Jillian Elisabeth STROGIS, Appellant, v. Peter MUTTY o/b/o K.A.M., Appellee.
    No. 5D11-3392.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    Eben C. Self, Orlando, for Appellant.
    No Appearance for Appellee.
   GRIFFIN, J.

Jillian Elisabeth Strogis [“Strogis”] appeals. a final judgment of injunction for protection against repeat violence-no hostile contact. She asserts that the trial court erred by denying her motion to dismiss the petition for injunction for protection against repeat violence because the petition failed to meet the legal requirements of section 784.046(4)(a), Florida Statutes. She also urges that there is not competent, substantial evidence in the record to establish the predicate two acts of violence.

On August 29, 2011, Peter Mutty [“Mutty”], on behalf of his minor child K.A.M., filed a petition for injunction for protection against repeat violence, naming Strogis as the party against whom the protective injunction was sought. Mutty alleged that Strogis had directed at least two incidents of violence against K.A.M., and attached a statement in which he described the alleged incidents of violence.

The facts underlying this proceeding involve long-standing animosity between Strogis and K.A.M. K.A.M., a high school senior, used to date a certain young man that Strogis, a college freshman, now dates. Both predicate acts of violence alleged by K.A.M. involved brief shoving or punching at crowded off-campus parties. The evidence offered at the hearing as to whether the contact was intentional or which of the two young women was the aggressor was in complete conflict. The trial court elected to enter a limited injunction on Mutt/s petition that prohibited only “hostile” contact by Strogis for a period of six months. The injunction expired on March 12, 2012.

First, we find no merit in Strogis’s claim of reversible error based on the legal insufficiency of the petition. As to the second issue, K.A.M.’s testimony was legally sufficient to support the trial court’s decision. Strogis is, in effect, asking this Court to reweigh the evidence, and this we cannot do.

AFFIRMED.

SAWAYA and COHEN, JJ., concur.


text:
    Sylvester JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3090.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

MONACO, TORPY and EVANDER, JJ., concur.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Cindy CIRESI, Respondent.
    No. 5D11-2813.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    Rehearing Denied July 26, 2012.

      Stephen D. Hurm, General Counsel, and Jason Helfant, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Lake Worth, for Petitioner.
    Eric A. Latinsky, Daytona Beach, for Respondent.
   PER CURIAM.

The circuit court, acting in its appellate capacity, departed from the essential requirements of law in awarding attorney’s fees. Accordingly, we grant the petition for certiorari review and quash the circuit court’s “Final Judgment Awarding Attorney’s Fees and Costs.”

PETITION GRANTED; ORDER QUASHED.

SAWAYA, TORPY and COHEN, JJ., concur.


text:
    Lewis H. HOUSTON a/k/a Houston H. Lewis, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1958.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Lewis H. Houston a/k/a Houston H. Lewis, was convicted of battery (with two prior battery convictions) and resisting an officer without violence. He contends that the jury instruction on the resisting charge was erroneous and that the written sentence on the resisting charge should be stricken because it was not orally announced. As to the first issue, we affirm without further discussion.

Regarding the second issue, the State concedes that no sentence was orally imposed for the- resisting conviction and that it was error to include in the written order of probation a sentence of one year probation with a special condition that defendant serve one year in the county jail concurrent to the sentence imposed for the battery conviction. Accordingly, the part of the probation order imposing sentence on the resisting charge is reversed and this case is remanded for a new sentencing hearing regarding that charge.

REVERSED AND REMANDED.

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    Steven B. TATRO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1901.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

As conceded by the State, the crimes for which Tatro was charged and convicted under Counts I and II in Case No. 2010-00733-CFAWS were first degree misdemeanors not, as apparently believed by all parties at the sentencing hearing, third degree felonies. On remand, the trial court shall correct the judgment to reflect that the offenses set forth in Counts I and II are first degree misdemeanors and re-sentence Tatro accordingly. Tatro’s convictions and sentences on Counts III and IV in Case No. 2010-00733-CFAWS and his judgment and sentence in Case No. 2010-00529-CFAWS are affirmed.

AFFIRMED, in part; REVERSED, in part; REMANDED.

SAWAYA, EVANDER and JACOBUS, JJ., concur.


text:
    Chester Lemar SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1471.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

MONACO, TORPY and EVANDER, JJ., concur.


text:
    K.M.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6669.
    District Court of Appeal of Florida, First District.
    July 3, 2012.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

K.M.H. appeals a delinquency disposition order committing her to a moderate-risk residential placement. The Department of Juvenile Justice (DJJ) recommended that K.M.H. be placed on probation with the requirement that she participate in an inpatient drug treatment program. K.M.H. argues that the trial court erred by failing to make the written finding required by section 985.441(2)(d), Florida Statutes, and that such finding was necessary for K.M.H. to be committed to residential placement for a misdemeanor offense. K.M.H. also argues that the trial court erred by failing to comply with the requirements enunciated in E.A.R. v. State, 4 So.3d 614 (Fla.2009) in deviating from DJJ’s recommendation. We agree that reversal is required because the trial court failed to make the written finding mandated by section 985.441(2)(d), Florida Statutes. We decline to reach the second issue raised by K.M.H.

The state properly concedes that the trial court did not make the written finding required by section 985.441(2)(d), Florida Statutes, when it committed K.M.H. to a residential placement for a violation of probation based on a misdemeanor offense. Section 985.441, Florida Statutes, was amended in 2011 to restrict the trial court’s authority to commit an adjudicated juvenile to a residential placement for a misdemeanor offense. Ch. 2011-54, § 1, Laws of Fla. The statute provides that a trial court may not commit a juvenile “for any misdemeanor offense or any probation violation at a restrictiveness level other than minimum-risk nonresidential unless the probation violation is a new violation of law constituting a felony.” § 985.441(2), Fla. Stat. However, the statute provides four exceptions where a juvenile who commits a misdemeanor offense or who violates probation based on a misdemeanor offense may be committed to residential placement:

(2) Notwithstanding subsection (1), the court having jurisdiction over an adjudicated delinquent child whose underlying offense was a misdemeanor may not commit the child for any misdemeanor offense or any probation violation at a restrictiveness level other than minimum-risk non-residential unless the probation violation is a new violation of law constituting a felony. However, the court may commit such child to a low-risk or moderate-risk residential placement if:
(a) The child has previously been adjudicated for a felony offense;
(b) The child has been adjudicated or had adjudication withheld for three or more misdemeanor offenses;
(c) The child is before the court for disposition for a violation of s. 800.03, s. 806.031, or s. 828.12; or
(d) The court finds by a preponderance of the evidence that the protection of the public requires such placement or that the particular needs of the child would be best served by such placement. Such finding must be in writing.

§ 985.441(2), Fla. Stat. (2011) (emphasis added).

Subsection (d) is the only applicable exception to this case. Because the trial court here did not make the required written finding that residential placement is necessary to protect the public or based upon the particular needs of K.M.H., we are constrained to reverse. On remand, the trial court will be provided an opportunity to enter a written order in compliance with section 985.441(2)(d), Florida Statutes, if it can do so. Cf. C.M.H. v. State, 25 So.3d 678, 680 (Fla. 1st DCA 2010) (reversing and remanding “to provide the trial court an opportunity to enter an order in compliance with E.A.R., or, if the trial court cannot, impose the probation recommended by the DJJ”).

REVERSED and REMANDED.

PADOVANO, ROWE, and RAY, JJ„ concur.


text:
    TUTOR TIME CHILD CARE/LEARNING CENTERS and Gallagher Bassett Services, Inc., Appellants, v. Laylita PATTERSON, Appellee.
    No. 1D11-2854.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Patrick John MeGinley of the Law Office of Patrick John MeGinley, P.A., Winter Park, for Appellants.
    William A. Kempner of Kempner Law, P.A., Tallahassee, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the employer/carrier (E/C) argues the Judge of Compensation Claims (JCC) erred by: (1) determining that section 440.29(4), Florida Statutes (2008), was not only a business records exception to the hearsay rule under section 90.803(6), Florida Statutes, but also an exception to the section 90.901, Florida Statutes, rule requiring documents be authenticated; (2) failing to require Claimant to prove that her subsequent workplace accident did not break the chain of causation; (3) barring cross-examination of Claimant concerning her choice of treatment regimens; and (4) awarding attorney’s fees and costs. We affirm the JCC’s determinations on the third and fourth issues without further comment. We also affirm the first two issues based on the following analysis.

Section 440.29(4), Florida Statutes, first appeared in the extensive re-write of chapter 440 enacted in the 1993 special legislative session. See Ch. 93-415, § 32, at 153, Laws of Fla. Section 440.29(4), Florida Statutes (2008), provides:

All medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the [JCC] upon proper motion. However, such records must be served on the opposing party at least 30 days before the final hearing. This section does not limit any right of further discovery, including, but not limited to, depositions.

The clear purpose of this statute is to streamline the evidentiary process and do away with the necessity of calling a records custodian to introduce certain medical records.

Medical Reports. Section 440.29(4) provides that “[a]ll medical reports of authorized treating health care providers relating to the claimant and subject accident” are admissible “upon proper motion.” The provision allows the admission of specified medical reports without the necessity of calling the medical record custodian if “proper motion” is made....

Charles W. Ehrhardt, Florida Evidence § 103.3 (2011 ed.) (emphasis added).

Records custodians are normally called for two purposes, to establish that the records meet the criteria of the business records hearsay exception and to establish the authenticity of the records.

Section 440.29(4) relates only to the reports of physicians authorized by the E/C to provide the claimant with medical treatment. See ITT/Palm Coast Utils. v. Douglas, 696 So.2d 390 (Fla. 1st DCA 1997) (reversing JCC’s receipt into evidence, over claimant’s objection, of medical narrative and addendum created for purposes of litigation, because they fell outside scope of section 440.29(4)). Thus, these records are readily available to E/C’s.

Section 90.901, Florida Statutes (2008), states, “[ajuthentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Section 440.29(4) permits only the medical records of the healthcare providers authorized by the E/C (not independent medical examiners, for instance) submitted by motion more than thirty days before the hearing (addressing due process concerns) to “be received into evidence ... upon proper motion.” The thirty-day notice assures that the E/C will have sufficient time to verify the authenticity of the records. Absent a bona fide dispute concerning the veracity of the records, requiring independent proof of authenticity would defeat the purpose of the statute. We, thus, read section 440.29(4) to provide not only a hearsay exception, but also to satisfy the requirement “that the matter in question is what its proponent claims.”

The E/C also challenges the JCC’s failure to require Claimant to prove that the second workplace accident, which occurred on September 24, 2008, did not break the chain of causation between the accident under review, which occurred on August 6, 2008, and the benefits which were awarded. It is undisputed that both accidents involved Claimant’s right arm and hand, and that Claimant’s employer and its workers’ compensation insurance carrier were the same for both dates of accident. There was no suggestion that Claimant suffered from problems with her right arm and hand prior to August 6, 2008. Based on these facts, there was no need for the JCC to address the issue raised by the E/C of whether the second accident broke the chain of causation. As we explained in Bysczynski v. United Parcel Services, Inc., 53 So.3d 328, 331 (Fla. 1st DCA 2010), it would have been error for the JCC to apply a major contributing cause analysis “because all of the medical evidence establishes that the only contributing causes of Claimant’s need for [benefits] were occupational in nature.”

AFFIRMED.

WOLF, RAY, and MAKAR, JJ., concur.


text:
    Carmen PINEDA, Appellant, v. RIO PINAR HEALTH CARE CENTER and Esis Southeast WC Claims, Appellees.
    No. 1D11-3766.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Bill McCabe, Longwood, and Glen D. Wieland, Orlando, for Appellant.
    Scott A. Cole and Kristen A. Tajak of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges the Judge of Compensation Claims’ (JCC’s) award of an employer/carrier-paid attorney’s fee without reference to the formula mandate set out in section 440.34(1), Florida Statutes (2007). Because the JCC correctly applied the Florida Supreme Court’s holding in Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008), we affirm.

The relevant statutory provision was in effect between October 1, 2003, and June 30, 2009. See Ch. 03-412, § 26, at 3943, Laws of Fla.; Ch. 09-94, § 1, at 1351, Laws of Fla. In Murray, the supreme court resolved the ambiguity between section 440.34(1) and section 440.34(3). See Murray, 994 So.2d at 1061-62. Relying on rules of statutory construction, the Murray court determined that, when assessing a reasonable attorney’s fee paid pursuant to subsection (3), the specific provisions pertaining to employer/carrier-paid attorney’s fees in the enumerated circumstances set forth in subsection (3) controlled over subsection (1), which “covers attorney fees generally but is silent as to the attorney fees to which a claimant is entitled from an employer/carrier under the circumstances set forth in subsection (3).” Id. at 1061. Accordingly, the supreme court held:

(B)ased upon the plain language of the statute, that when a claimant is entitled to recover attorney fees from a carrier or employer as provided by section 440.34(3)(a), (b), (c), or (d), the claimant is entitled to recover “a reasonable attorney’s fee.” See § 440.34(3), Fla. Stat. (2003). Section 440.34(3), does not define “reasonable attorney’s fee,” and an ambiguity results when subsection (1) and subsection (3) are read together. Accordingly, we have determined that reasonable attorney fees for claimants, when not otherwise defined in the workers’ compensation statute, are to be determined using the factors of rule 4-1.5(b) of the Rules Regulating the Florida Bar. See Lee Eng’g & Constr. Co. v. Fellows, 209 So.2d 454, 458 (Fla.1968) (applying Canon 12 of the Canons of Professional Ethics, the predecessor to rule 4-1.5(b)).

Id. at 1053. Thus, here, because the JCC relied on the Lee Engineering factors in arriving at a reasonable employer/carrier-paid attorney’s fee, the JCC did not err in awarding Claimant’s attorney a $25,000 attorney’s fee.

AFFIRMED.

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    INTELISTAF HEALTHCARE, INC., Appellant, v. Lanette GERVATO and Ron Condren, her Husband, and as Parents and Natural Guardians of Anthony Justin Gervato, Summer Lea Gervato, Dominick James Gervato, and Madeline Elizabeth Condren, Their Minor Children; and University of Florida Board of Trustees, Appellees.
    No. 1D11-3723.
    District Court of Appeal of Florida, First District.
    July 3, 2012.

      Christine Davis Graves and Peter D. Webster of Carlton Fields, P.A., Tallahassee, for Appellant.
    Joel S. Perwin of Joel S. Perwin, P.A., Miami; Gary Cohen of Grossman Roth, Boca Raton; Stuart I. Grossman of Gross-man Roth, Miami; and William E. Partridge, Sarasota, for Appellees Lanette Gervato and Ron Condren.
    S. William Fuller Jr., of Fuller, Mitchell, Hood & Stephens, Tallahassee; Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee, for Appellee University of Florida Board of Trustees,
   PER CURIAM.

The appellant, InteliStaf Healthcare, Inc., raises three issues on appeal, only one of which merits discussion. The appellant argues that, if there is a new trial, the trial should encompass damages as well as liability. We agree and affirm the trial court’s order granting a new trial as to liability, but remand for a new trial on both liability and damages.

In the order below, the trial court found that the cumulative effect of InteliStafs misconduct as a whole created an environment “so prejudicial and inflammatory that it denied Plaintiffs their right to a fair trial.” However, the trial court found that the misconduct warranting a new trial did not affect the determination of compensatory damages; therefore, it granted a new trial only as to the apportionment of liability.

In Purvis v. Inter-County Telephone & Telegraph Co., the supreme court held, “the majority rule is that a new trial may be limited to the question of liability when it is clear that the course can be pursued without confusion, inconvenience, or prejudice to the rights of any party.” 173 So.2d 679, 681 (Fla.1965) (citation omitted). In the instant case, the trial court granted a new trial after finding various instances of misconduct that extended from the beginning of the trial to the end. Because we cannot determine that the cited instances of impropriety did not bleed into the determination of damages, we reverse the portion of the trial court’s order granting a new trial on the issue of liability only and remand for a new trial on liability and damages.

AFFIRMED in part, REVERSED in part, and REMANDED.

VAN NORTWICK and ROBERTS, JJ., and DEMPSEY, ANGELA, Associate Judge, concur.


text:
    Marlon D. McCARTHAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1415.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Marlon D. McCarthan, pro se; Jeffrey E. Lewis, General Counsel, and Sheila Callahan, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal in which the Office of Criminal Conflict and Civil Regional Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm Appellant’s conviction and sentence since no reversible error occurred in this case. However, we strike the one hundred dollar indigent legal assistance lien imposed, since Appellant was not given notice of his right to a hearing to contest the amount of this lien. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”); Patterson v. State, 686 So.2d 758, 758 (Fla. 1st DCA 1997).

Accordingly, we AFFIRM Appellant’s conviction and sentence, but we REVERSE and REMAND for a hearing to allow Appellant notice and opportunity to contest the amount of the lien before it may be reimposed.

ROWE, MARSTILLER, and SWANSON, JJ., concur.


text:
    Dennis L. STEELE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4865.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Dennis L. Steele, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a rule 3.850 motion raising a facially sufficient sentencing issue, which the trial court denied because the appellant did not attach a copy of the plea and sentencing hearing transcript. However, the trial court has the responsibility to attach to the order denying the post-conviction motion the portion of the record conclusively refuting the appellant’s claim. See Fla. R.Crim. P. 3.850(d). The state has conceded that the case should be reversed and remanded for this purpose. We therefore reverse and remand for the trial court to either attach the portion of the record conclusively refuting the appellant’s claim, or to hold an evidentiary hearing on it.

REVERSED AND REMANDED with directions.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Calise ROBERTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3103.
    District Court of Appeal of Florida, First District.
    July 3, 2012.

      Calise Robertson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Wayne MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0681.
    District Court of Appeal of Florida, First District.
    July 5, 2012.
    Wayne Moore, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

BENTON, C.J., PADOVANO, and ROBERTS, JJ., concur.


text:
    A.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3180.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

A.S. was charged with felony criminal mischief valued at $1000 or more; the State alleged that she caused $2600 in damage to a car. The owner of an auto body shop testified to the value of the damage, basing it on an estimate made by one of his employees in the regular course of business. Because this estimate was never admitted into evidence, A.S. requested that the testimony be stricken from the record as it was hearsay. The trial court refused to strike the testimony. We reverse and remand, having determined there was insufficient evidence to prove felony criminal mischief.

Section 90.803(6), Florida Statutes (2003) provides a hearsay exception for records of regularly conducted business activity. However, “the business-records exception to the hearsay rule ... does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence.” Thompson v. State, 705 So.2d 1046, 1048 (Fla. 4th DCA 1998) (emphasis added).

In the instant case, the estimate itself would have qualified as a business record; however, the testimony explaining the contents of the estimate would not fall within this exception. See Sunshine Chevrolet Oldsmobile v. Unemployment Appeals Comm’n, 910 So.2d 948, 951 (Fla. 2d DCA 2005) (explaining that testimony of a custodian is “the predicate necessary to admit the [documents] as a business record exception to the hearsay rule”). Because the actual estimate was not admitted into evidence, the testimony concerning its contents should have been stricken. Without this evidence, the record does not provide competent, substantial evidence demonstrating the essential element of value. Therefore, we reverse the lower court’s decision and remand to reduce A.S.’s “conviction of felony criminal mischief to the lesser offense of second-degree misdemeanor criminal mischief as defined in section 806.13(l)(b), Florida Statutes (2006)” in accordance with Marrero v. State, 71 So.3d 881, 891 (Fla.2011). A.S. is entitled to a new disposition hearing. Clark v. State, 746 So.2d 1237, 1241 (Fla. 1st DCA 1999).

Reversed and Remanded.

WARNER, DAMOORGIAN and CONNER, JJ., concur.

      . We also note that the owner’s testimony would not qualify as expert opinion because he testified only as to what was contained within the estimate, rather than evaluating what should have been included within the estimate based upon viewing photographs during trial.


text:
    Ronald W. FULLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1276.
    District Court of Appeal of Florida, First District.
    July 6, 2012.
    Ronald W. Fuller, pro se, Appellant.
    Pamela Jo Bondi, Attorney General; Angela R. Hensel and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

BENTON, C.J., PADOVANO, and ROBERTS, JJ., concur.


text:
    Richard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1539.
    District Court of Appeal of Florida, First District.
    July 6, 2012.
    Richard Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

BENTON, C.J., PADOVANO, and ROBERTS, JJ., concur.


text:
    Elizabeth “Betsy” BOOTH, Wife, Appellant, v. Rainey C. BOOTH, Husband, Appellee.
    No. 1D11-5976.
    District Court of Appeal of Florida, First District.
    July 9, 2012.

      Gregory D. Smith, Pensacola, for Appellant.
    Louis K. Rosenbloum; Marcus J. Michles, II of Michles & Booth, P.A., Pensacola, for Appellee.
   PER CURIAM.

Elizabeth “Betsy” Booth, the former wife, appeals an order granting rehearing of an attorney’s fee order entered by a predecessor judge which had denied a motion for attorney’s fees and costs filed by Michles & Booth, P.A., (M & B) a nonparty and a law firm in which Rainey C. Booth, the former husband, held an interest. The order under review vacated the order of the predecessor judge. Because we conclude that the order under review is not based upon competent substantial evidence, we hold that the trial court abused its discretion in entering the order and reverse.

The parties’ marriage was dissolved in January 2011. In the dissolution proceeding, the former wife sought to compel production of information from M & B, claiming that the former husband’s interest in the law firm constituted a marital asset. The law firm filed an objection to the notice of production from nonparty and motion for protective order. M & B contended that evidence had been produced in the dissolution proceeding which established that the former husband had not owned any equity interest in the law firm since January 1, 2005. After a hearing, the trial court determined that the former husband’s ownership interest in the law firm had ceased as of January 1, 2005.

M & B then filed a motion for attorney’s fees arguing that it had “incurred reasonable expenses in defending [former wife’s] Motion to Compel and, pursuant to Rule 1.380(a)(4) of Florida Rules of Civil Procedure, is entitled to attorney fees and costs for prevailing on its Motion for Protective Order.” At the hearing on this motion, Marcus J. Michles, II, representing M & B, responded affirmatively when the predecessor judge inquired whether the issue of the reasonableness of the fee was before the court as well as the issue of entitlement to a fee. Thereafter, because M & B failed to present the evidence necessary to establish the reasonableness of the fee requested, the predecessor judge denied the motion stating: “The dispositive issue before the Court is whether the reasonableness of the fees asserted have been established. They were not.”

M & B filed a motion for rehearing, arguing that it was under the erroneous impression the court would be addressing the reasonableness of the amount of attorney’s fees in a separate and subsequent hearing. A hearing was held before a successor judge. Mr. Michles did not appear. The attorney representing M & B at the hearing asserted that it was Mr. Michles’ belief that it would have been useless to bring experts to prove the reasonableness of the fee until it was certain that the firm would be awarded entitlement to fees. The successor judge agreed that there had been a misunderstanding at the hearing before the predecessor judge and “[f]or that reason, Michles & Booth was not fully prepared to address the amount of its fee after [the predecessor judge] ruled in its favor on the issue of entitlement. Accordingly, equity requires a new hearing.” This court treated the order of the successor judge as one granting a new trial and this appeal proceeded pursuant to Florida Rule of Appellate Procedure 9.110(a)(4).

In Groover v. Walker, 88 So.2d 312 (Fla.1956), the Florida Supreme Court held that it was error for a successor judge on unchanged facts to enter an order vacating the final decree of the predecessor judge. Specifically, the court relied upon the general rule that “[a] successor judge generally cannot review, modify, or reverse, upon the merits, on the same facts, the final orders of his predecessor unless there exists some special circumstances such as mistake or fraud perpetrated on the court.” Id. at 314 (quoting 33 C.J. Judges § 104 (p. 973)).

The record does not contain competent substantial evidence of any special circumstances such that it was permissible for the successor judge to vacate the final order of his predecessor. When a party seeking fees does not make the requisite showing at the evidentiary hearing, the party will not be entitled to a second bite of the apple at a second evidentiary hearing so that the party can submit new proof. Grapski v. City of Alachua, 37 Fla. Law Weekly D1034, D1035 (Fla. 1st DCA April 27, 2012). Finally, we agree with appellant that the comments of the attorney representing M & B at the second hearing did not constitute evidence. The attorney’s unsworn statements do not constitute facts in the absence of a stipulation. H.K. Dev., LLC v. Greer, 32 So.3d 178, 181, n. 4 (Fla. 1st DCA 2010).

REVERSED.

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

      . The power to vacate or modify is different with respect to a predecessor’s interlocutory rulings. Hull & Company, Inc. v. Thomas, 834 So.2d 904, 905 (Fla. 4th DCA 2003) (‘‘[PJrior to final judgment, a successor judge has the power to vacate or modify a predecessor’s interlocutory rulings, such as an order on a motion for summaiy judgment.”).


text:
    Marquis TURNER, Appellant, v. FLORIDA DEPARTMENT OF REVENUE by and on behalf of Truvonna Chanel COKER, Appellee.
    No. 1D11-6841.
    District Court of Appeal of Florida, First District.
    July 9, 2012.
    Lucas J. Taylor of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellant.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order establishing a child support obligation. The Department of Revenue has filed a confession of .error and acknowledged that the record lacks substantial, competent evidence to support the imputation of income to the appellant for the purpose of establishing his child support obligation. Finding the confession of error to be well taken, the order of the circuit court is quashed and the cause is remanded for further proceedings.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Brent Matthew LUKASZEWSKI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1480.
    District Court of Appeal of Florida, First District.
    July 9, 2012.
    James Owens, Public Defender, and James -H. Gardner, Assistant Public Defender, Shalimar, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the judgment and sentence rendered on February 23, 2012, in Okaloosa County Circuit Court case number 2011-CF-001633-S. 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.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Clem Lavon ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6140.
    District Court of Appeal of Florida, First District.
    July 9, 2012.
    Nancy A. Daniels, Public Defender, 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.

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

BENTON, C.J., CLARK, and MAKAR, JJ., concur.


text:
    Lazaro ANGEL-BELLO, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-513.
    District Court of Appeal of Florida, First District.
    July 11, 2012.
    Lazaro Angel-Bello, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (holding Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), shall not be applied retroactively), rev. granted, 81 So.3d 414 (Fla.2012).

WOLF, ROWE, and SWANSON, JJ„ concur.


text:
    Julie CAMPBELL, Appellant, v. Alfred RAPETTI, Appellee.
    No. 4D11-2249.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    John Anderson, Brandon, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. Our affirmance is without prejudice to Campbell seeking a separate income deduction order or other enforcement to collect on the arrears set forth in the 2007 Utah judgment. Since the 2007 Utah judgment was registered in Florida, enforcement of the Utah judgment does not require a court to enter a Florida judgment establishing a cumulative arrear-age. § 55.604(5), Fla. Stat. (2012).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Carlos GALVAN, Appellant, v. WELLS FARGO BANK, N.A.; The Unknown Spouse Of Carlos Galvan; Any And All Unknown Parties Claiming By, Through, Under, And Against The Herein Named Individual Defendants) Who Are Not Known To Be Dead Or Alive, Whether Said Unknown Parties May Claim An Interest As Spouses, Heirs, Devisees, Grantees, Or Other Claimants; Mortgage Electronic Registration Systems, Incorporated, As Nominee for Homebuyers Financial, LLC; Tenant # 1, Tenant # 2, Tenant # 3, and Tenant # 4, the names being fictitious to account for parties in possession, Appellees.
    No. 4D11-2392.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellant.
    Donna L. Eng, Michael K. Winston and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellee Wells Fargo Bank, N.A.
   PER CURIAM.

Affirmed. See Phadael v. Deutsche Bank Trust Co. Ams., 83 So.3d 893 (Fla. 4th DCA 2012); Cowan v. Bank of New York Mellon, 74 So.3d 591 (Fla. 4th DCA 2011).

MAY, C.J., TAYLOR and CIKLIN, JJ., concur.


text:
    Larry MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2669.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Antony P. Ryan, Regional Counsel, Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Larry Marshall seeks review of an order that dismissed his rule 3.850 motion for postconviction relief. The judge concluded that he lacked jurisdiction to entertain the postconviction motion, in light of Marshall’s pending appeal of a prior rule 3.850 motion. We reverse and remand in light of our recent decisions in Lubin v. State, 87 So.3d 1260 (Fla. 4th DCA 2012), and Jackman v. State, 88 So.3d 325 (Fla. 4th DCA 2012). As outlined in Lubin, through Jackman we adopted the rationale of Bryant v. State, — So.3d -, 2012 WL 28713 (Fla. 2d DCA 2012), and held that a trial court has authority to consider or to defer ruling and stay a subsequently filed postconviction motion that raises unrelated issues, notwithstanding the pendency of an appeal of an order on a previously filed postconviction motion. As in Jackman, we express no opinion on the merits of Marshall’s motion.

Reversed and remanded.

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


text:
    Neal Jacob HULL, Appellant, v. FLORIDA AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D12-0253.
    District Court of Appeal of Florida, First District.
    July 16, 2012.
    Edith E. Sheeks, Tallahassee, for Appellant.
    Marc Ito, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s motion to remand is treated by the court as a concession of error. In accordance therewith, the final order on appeal is reversed, and the matter is remanded to the lower tribunal for further proceedings consistent with Newsome v. Agency for Persons with Disabilities, 76 So.3d 972 (Fla. 1st DCA 2011).

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    DEPARTMENT OF REVENUE obo Yovana N. SANTILLANA, Appellant, v. Damien S. DORKINS, Appellee.
    No. 1D11-5288.
    District Court of Appeal of Florida, First District.
    July 16, 2012.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Damien S. Dorkins, pro se, Appellee.
   PER CURIAM.

The Department of Revenue challenges an administrative support order that deviated from the child support guidelines based on an informal visitation arrangement between the parties. Because the visitation arrangement was not contained in a court-approved parenting plan, the deviation was unauthorized.

In setting the Appellee’s monthly child support obligation, the administrative law judge (“ALJ”) departed downward from the guidelines after the Appellee testified that pursuant to an informal arrangement between him and the children’s mother, the children visit him overnight each Saturday and Sunday. Section 61.30(ll)(a), Florida Statutes (2011), permits a trier of fact to deviate from the child support guidelines based on enumerated factors. The ALJ relied on section 61.30(ll)(a)ll., known as the “catch-all” provision, which allows “[a]ny other adjustment that is needed to achieve an equitable' result[.]”

In Department of Revenue v. Daly, 74 So.3d 165, 167-68 (Fla. 1st DCA 2011), we held that a non-court-approved visitation arrangement does not support deviation from the guidelines under section 61.30(ll)(a)ll.

The addition of the term “other” indicates the adjustment must be based on some other grounds not already expressed in [section 61.30(ll)(a)ll., Florida Statutes]. Section 61.30(ll)(a)(10) expressly requires that an equitable deviation based on time-sharing be awarded only where (1) there exists a “parenting plan,” and (2) the parent has time-sharing with the child for less than 20% of the time.... [A] parenting plan is defined in section 61.046(14) as a court-approved parenting plan with a time-sharing arrangement that can be created through mediation and later approved by a court, or approved by a court where the parties cannot agree. Thus, the plain language of the statute prohibits a trial court from deviating from the guidelines based on a verbal visitation agreement even where equity compels the deviation.

Id.; see also Dep’t of Revenue v. Aluscar, 82 So.3d 1165, 1166 (Fla. 1st DCA 2012); Dep’t of Revenue v. Williams, 79 So.3d 240, 241 (Fla. 1st DCA 2012). Accordingly, we reverse the support order on appeal and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    In re Clovus Jackson ASHLEY, II.
    No. 2012-B-1280.
    Supreme Court of Louisiana.
    June 13, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected his client’s legal matter and failed to communicate with the client. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Clovus Jackson Ashley, II, Louisiana Bar Roll number 21449, be suspended from the practice of law for a period of one year, fully deferred, subject to a one-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    In re J. Courtney WILSON.
    No. 2012-B-1028.
    Supreme Court of Louisiana.
    June 15, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent, while representing the plaintiff in a lawsuit, attempted to communicate directly with employees of the represented defendant without the permission of the defendant’s attorney. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John Courtney Wilson, Louisiana Bar Roll number 13561, be publicly reprimanded.

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

       Chief Justice Kimball not participating in the opinion.


text:
    In re Kerwin W. DOYLE.
    No. 2012-OB-1303.
    Supreme Court of Louisiana.
    June 20, 2012.
    See also, 978 So.2d 904.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

| iThis proceeding arises out of an application for reinstatement filed by petitioner, Kerwin W. Doyle, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 1993, this court transferred petitioner to disability inactive status as a result of his long history of alcoholism and drug addiction. At that time, the Office of Disciplinary Counsel’s (“ODC”) investigation of the numerous complaints it had received against petitioner was stayed. Thereafter, petitioner entered a long-term substance abuse treatment program and achieved sobriety. On December 8, 2000, as the result of a joint petition by the parties, petitioner was transferred from disability inactive status to interim suspension. In re: Doyle, 00-3022 (La.12/8/00), 774 So.2d 117. This action allowed disciplinary proceedings against petitioner to resume.

In 2007, the ODC filed twelve counts of formal charges against petitioner, alleging that he converted client and third-party funds, settled cases without the approval of his clients, failed to communicate with his clients, and neglected their legal matters. For this misconduct, we suspended petitioner from the practice of | Jaw for three years, retroactive to his December 8, 2000 interim suspension. In re: Doyle, 07-2015 (La.4/4/08), 978 So.2d 904. We further ordered petitioner to make restitution to his clients and to repay the Louisiana State Bar Association’s Client Assistance Fund any amounts paid to claimants on his behalf.

In 2011, petitioner filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). With his application for reinstatement, petitioner included proof that he has made restitution to his clients and the Client Assistance Fund in accordance with our prior order. Petitioner also submitted numerous letters from former clients and colleagues and various members of the community, all in support of his reinstatement to the practice of law.

The ODC took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended petitioner be reinstated to the practice of law, subject to the condition that he not be permitted to sign trust account checks for a period of one year. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

DISCUSSION

Petitioner has servéd the three-year suspension imposed by this court in 2008, and no objections were received to his application for reinstatement. Based upon the record before us, we find petitioner has met his burden of proving that he is entitled to be reinstated to the practice of law. Nevertheless, we find further precautions are warranted to insure that the public will be protected upon petitioner’s return to practice. See Supreme Court Rule XIX, § 24(J). Accordingly, we will order that petitioner be conditionally reinstated, subject to a | gone-year period of supervised probation. During the period of probation, petitioner may not operate a solo law practice, but rather, must be a salaried employee of a law firm. Furthermore, petitioner shall have no access to client funds during the probationary period, nor shall he have signature authority on the financial accounts maintained by his employer, including any operating or client trust accounts. Finally, petitioner must extend his current contract with the Lawyers Assistance Program (“LAP”) for a period of five years and fully comply with the terms and conditions thereof. Should petitioner fail to comply with these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Kerwin W. Doyle, Louisiana Bar Roll number 5062, be immediately reinstated to the practice of law in Louisiana, subject to the conditions set forth herein. All costs of these proceedings are assessed against petitioner.

       Chief Justice Kimball not participating in the opinion.

      . Petitioner’s current LAP contract expires on July 11, 2012. The five-year extension that is a condition of petitioner’s reinstatement will subject him to monitoring by LAP until mid-2017.


author: PER CURIAM

text:
    In re Derrick D.T. SHEPHERD.
    No. 2011-B-2011.
    Supreme Court of Louisiana.
    June 22, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

| ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Derrick D.T. Shepherd, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Shepherd, 08-1890 (La.8/14/08), 988 So.2d 243.

UNDERLYING FACTS

Count I

In April 2008, a federal grand jury in New Orleans returned an indictment charging respondent, who was then serving as a Louisiana State Senator, with multiple counts of mail fraud, conspiracy to commit mail and wire fraud, and conspiracy to commit money laundering. The indictment alleged that respondent helped a convicted bond broker launder nearly $141,000 in fraudulently generated bond fees. In October 2008, respondent pleaded guilty to one felony count of conspiracy to commit money laundering, a violation of 18 U.S.C. § 1956(h). The remaining counts against him were dismissed. Respondent was subsequently sentenced to serve a thirty-seven month term of imprisonment and was ordered to pay a $45,000 fine.

|2In the factual basis for the guilty plea, respondent admitted that he conspired with Gwendolyn Moyo to launder construction bond premiums paid to AA Communications, Inc. after the company was ordered to cease and desist from engaging in the insurance business and after its bank accounts were seized by state regulators. Specifically, in December 2006, respondent deposited into his client trust account $140,686.21 in checks related to bond premiums and made payable to AA Communications. He then wrote checks totaling $75,000 payable to Ms. Moyo and her associates. Of the remaining funds, respondent transferred $55,000 to his law firm’s operating account and deposited $15,000 into his personal checking account. He then moved $8,000 from the operating account back into his client trust account. On December 21, 2006, respondent paid off $20,000 in campaign debt from his operating account, writing “AA Communications” on the memo line of the check. To conceal this activity, respondent created false invoices and time sheets reflecting work purportedly done by his law firm on behalf of Ms. Moyo.

The ODC alleged that respondent’s conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Count II

The ODC obtained copies of the bank records for respondent’s client trust account for the period between October 1, 2006 and April 30, 2007. Following its review of these records, the ODC determined that respondent converted client | afunds on several occasions, frequently to cure negative balances in the trust account. He also failed to accurately account for disbursements made to his clients and commingled his personal funds with client funds.

The ODC alleged that respondent’s conduct violated Rules 1.15(a) (a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In February 2010, the ODC filed two counts of formal charges against respondent, as set forth above. The ODC sought the imposition of permanent disbarment for respondent’s misconduct.

Respondent initially failed to file an answer to the formal charges, and as a result, the factual allegations thereof were deemed admitted and proven by clear and convincing evidence. Thereafter, respondent answered the formal charges and admitted his criminal conviction, but denied any misconduct. Accordingly, the deemed admitted order was recalled, and this matter was set for a formal hearing on the merits on September 14, 2010.

In June 2010, respondent filed a motion to continue the hearing until April 2011, citing his enrollment in a substance abuse treatment program at the federal penitentiary where he was incarcerated. The hearing committee chair denied respondent’s motion for a continuance, and the hearing proceeded as scheduled on September 14, 2010. Respondent did not appear at the hearing or seek to participate by telephone, nor was counsel present at the hearing to represent him.

[ ¿Hearing Committee Report

Following the hearing, the hearing committee issued its report, in which it concluded that respondent was convicted of a felony criminal offense involving obvious dishonesty, fraud, deceit, and misrepresentation. In addition, the committee found respondent improperly maintained his client trust account and failed to appropriately tender funds to clients in a timely fashion. Finding his misconduct demonstrates he is not fit to practice law in Louisiana, the committee recommended respondent be permanently disbarred.

Disciplinary Board Recommendation

On November 8, 2010, in response to the hearing committee’s report, respondent filed a motion for continuance, requesting that any further proceedings in this matter be delayed until after he is released from federal custody on June 20, 2011, “so that he may be present to offer matters in mitigation and more accurately describe [his] situation.” On November 22, 2010, the disciplinary board denied respondent’s motion, but agreed to hold open the record “until June 30, 2011 for Respondent to make a written submission to the Board.” The board further ordered that the ODC would have ten days to reply to any submission made by respondent, following which “the Record will be deemed closed and the matter fully submitted for decision.”

On July 5, 2011, at which time respondent was still incarcerated in a federal penitentiary, he filed a pleading with the board seeking a further stay or continuance of the proceedings. In this filing, respondent asserted that his criminal conviction is not yet final because he has moved to set aside his guilty plea, on the ground that the plea “was obtained because of coercion and deceit.” The ODC opposed respondent’s request, maintaining that the criminal conviction is final and that respondent was merely “engaged in a collateral attack of his guilty plea IfiConviction.” On July 12, 2011, the disciplinary board denied respondent’s request for a stay or continuance. On September 16, 2011, the board filed its report with this court, recommending respondent be permanently disbarred.

At the outset, the disciplinary board rejected respondent’s argument that his conviction is not yet final because he is attempting to have his guilty plea set aside. The board noted that in In re: Dillon, 11-0331 (La.7/1/11), 66 So.3d 434, this court held that habeas proceedings or other proceedings for post-conviction relief do not affect the finality of a conviction for the purposes of attorney disciplinary proceedings. In the instant case, the board found the relief respondent is seeking is eonsid-ered a post-conviction claim, given the language of the plea agreement signed by respondent in which he waived certain appeal rights and “his right to contest his conviction and/or his sentence in any collateral proceeding, including proceedings brought under” 28 U.S.C. § 2255. Therefore, insofar as this proceeding is concerned, the board determined that respondent’s conviction is final.

Turning to the merits of the matter, the board found the hearing committee’s factual findings are not manifestly erroneous. Based on these findings, the board found respondent violated the Rules of Professional Conduct as charged. The board determined that respondent knowingly and intentionally violated duties owed to his clients, the public, and the profession, causing actual harm. The baseline sanction for respondent’s misconduct is disbarment.

In mitigation, the board acknowledged that respondent has no prior disciplinary record, and that other penalties or sanctions were imposed upon him in connection with his criminal conviction. The board found the following aggravating factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the | (¡conduct, vulnerability of the victims, substantial experience in the practice of law (admitted 1997), and illegal conduct.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed a timely objection in this court to the disciplinary board’s recommendation. However, after the expiration of the time for filing objections under Supreme Court Rule XIX, § 11(G)(1), respondent sought to file a “late” objection. On November 10, 2011, we issued an order rejecting respondent’s objection as untimely and therefore procedurally improper, but permitting the filing of briefs, without oral argument. Respondent and the ODC both filed briefs in response to the court’s order.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the |7seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Here, respondent stands convicted of conspiracy to commit money laundering. This crime is a felony under federal law and clearly warrants serious discipline. Indeed, 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 of this state.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct which might be considered worthy of permanent disbarment. For purposes of the instant case, Guideline 6 is relevant. That guideline provides:

GUIDELINE 6. Insurance fraud, including but not limited to staged accidents or widespread runner-based solicitation.

The record reflects that respondent knowingly laundered $141,000 in insurance bond proceeds through his client trust account for Ms. Moyo and AA Communications, after they had been ordered to cease and desist from engaging in the business of insurance and after their bank accounts had been seized by state insurance regulators. In doing so, respondent promoted and facilitated the unlawful activity of his co-conspirators. He returned $75,000 to Ms. Moyo and kept the rest of the funds for himself, using $20,000 to retire his campaign debt. To conceal all of this activity, respondent created false billing statements and time ^records reflecting work his law firm had purportedly done on behalf of his “client,” Ms. Moyo. This reprehensible conduct clearly falls within the scope of the permanent disbarment guidelines.

We have considered the arguments in mitigation which respondent presented in his supplemental brief, as well as the letter from the U.S. Attorney’s Office confirming that he was given a reduction in his prison sentence due to the assistance he provided the government in other matters. However, this information does not change our conclusion that permanent disbarment is the appropriate sanction in this case. As a state senator, respondent occupied a position of public trust. He is therefore held to even a higher standard of conduct than an ordinary attorney. In re: Naccari, 97-1546 (La.12/19/97), 705 So.2d 784; In re: Huckaby, 96-2643 (La.5/20/97), 694 So.2d 906. Respondent breached this standard by willingly entering into a money laundering scheme and trying to disguise his misdeeds as legitimate legal work, causing incalculable harm to the public’s perception of the legal profession.

Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that the name of Derrick D.T. Shepherd, Louisiana Bar Roll number 24878, 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 |flreadmitted to the practice of law in this state. 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.

      . Copies of these checks in the record reflect that many contain the notation "settlement proceeds.”

      . Respondent suggested that "the cause of his behavior which necessitates these proceedings are [sic] related to drug and alcohol abuse,” for which he had "voluntarily enrolled in a 9 ½ month 500 hour drug & alcohol in-house rehabilitation program.” Respondent indicated that after he completed this program, he would be eligible for an early release from prison and could return to New Orleans to "begin re-entry back into society.”

      . Simultaneously with the filing of his brief, respondent filed a motion requesting that this court consider sealed documents as further mitigation evidence. Respondent also filed a motion to remand this matter for a new hearing. On February 1, 2012, we denied both motions.
      Thereafter, respondent filed a motion seeking to introduce new evidence in the form of a February 9, 2012 letter from the Office of the United States Attorney for the Eastern District of Louisiana. The letter, which was offered by respondent in lieu of the sealed evidence he had previously submitted, relates that he was given a seven-month reduction in his original thirty-seven month sentence due to his "substantial assistance to the government in criminal investigations.” By order dated May 23, 2012, we received this letter into evidence but otherwise declined to reconsider our February 1, 2012 order. Respondent was subsequently permitted to file an additional brief addressing the effect of his cooperation on the issue of an appropriate sanction in this matter.

      . Respondent’s federal criminal conviction is final for purposes of this disciplinary proceeding. See Supreme Court Rule XIX, § 19(E); In re: Dillon, supra; Louisiana State Bar Ass’n v. Shaheen, 338 So.2d 1347 (La.1976).

      . Because the imposition of permanent disbarment is the most severe sanction that can be imposed on respondent, having the effect of forever removing him from the bar of this state, we find it is not necessary to discuss the misconduct charged in the second count of the formal charges. See, e.g., In re: Maxwell, 09-2658 (La.7/6/10), 44 So.3d 668.


text:
    Troy PEREZ and Jason C. Cutrer v. EVENSTAR, INC. and First Mercury Insurance Company.
    No. 2012-CA-1003.
    Supreme Court of Louisiana.
    June 22, 2012.
   PER CURIAM.

| ,The Plaquemines Parish Government invokes the appellate jurisdiction of this court pursuant to La. Const, art. V, § 5(D), on the ground that the district court declared Plaquemines Parish Ordinance Section 18-1 to be unconstitutional.

Pretermitting the merits, we find the appeal is not properly before this court. Article V, § 5(D) vests appellate jurisdiction in this court in cases in which “a law or ordinance has been declared unconstitutional .... ” A review of the district court’s judgment indicates the court merely grants plaintiffs’ motion for summary judgment, and denies the intervention filed by Plaquemines Parish Government, without making any mention of the constitutionality of Ordinance 18-1. The only reference to constitutionality is contained in the district court’s reasons for judgment, in which it states “the ordinance is unconstitutionally vague because of a total lack of uniform rules or standards for granting or denying burrow pit permits.”

Although the district court’s reasons for judgment discuss the constitutionality of the ordinance, it is well-settled law that the trial court’s oral or written reasons form no part of the judgment. See La. Code Civ. P. art. 1918; see also Haynes v. United Parcel Service, 05-2378 (La.7/6/06), 933 So.2d 765; Spiers v. Roye, 04-2189 (La.App. 1st Cir.2/10/06), 927 So.2d 1158; Davis v. Hoffman, 00-2326 (La.App. 4th Cir.10/24/01), 800 So.2d 1028; LaRocca v. Bailey, 01-0618 (La.App. 3rd Cir.11/7/01),2 799 So.2d 1263; City of Kaplan v. Mayard, 616 So.2d 826 (La.App. 3rd Cir.1993); Marino v. Marino, 576 So.2d 1196 (La.App. 5th Cir.1991).

Because there is no declaration of unconstitutionality in the district court’s judgment, there is no basis for the exercise of this court’s appellate jurisdiction. Accordingly, the appeal is transferred to the court of appeal for further proceedings.


text:
    In re Byrne W. DYER, III.
    No. 2012-B-1412.
    Supreme Court of Louisiana.
    June 27, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ,The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter, failed to communicate with his client, and failed to properly withdraw from the representation of the client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Byrne W. Dyer, III, Louisiana Bar Roll number 5135, be publicly reprimanded.

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

       Chief Justice Kimball not participating in the opinion.


text:
    STATE of Louisiana v. Gary Wayne WOODS.
    No. 2012-K-0505.
    Supreme Court of Louisiana.
    June 29, 2012.
   PER CURIAM.

| ]Writ Granted. For the following reasons, we grant the state’s application, reverse the decision of the court of appeal, and reinstate defendant’s conviction and sentence for illegal possession of stolen things valued at over $500, in violation of La.R.S. 14:69(B)(1).

In August 2009, Daniel Gonzales admitted to investigators from the Alexandria Police Department that he had stolen merchandise from his employer, the Silver Dollar Pawn Shop. After his arrest, Gonzales informed the officers that he had sold some of the items to defendant. When confronted, defendant freely admitted to possessing the items and consented to a search of his home. During the search, officers found the stolen items under defendant’s bed. In a statement to police, defendant indicated that he bought the items from Gonzales, whom he did not know before the transaction, for $35 and believed they were worth approximately $4,000. Defendant further indicated in his statement that he |2thought the items may have been stolen, stating, “That’s the first thing crossed my mind you know, I— I live on that street. I know any time somebody come to me like that with something for a little price like it’s a possibility they are stolen.... But it could — could have been out of his house you know.” Based on this evidence defendant was convicted as charged by a jury and sentenced to five years imprisonment at hard labor.

On appeal, defendant argued among other assignments of error that the state presented insufficient evidence to support his conviction. In a split decision, the majority on the Third Circuit panel acknowledged that the state’s evidence included defendant’s statement that he had bought the items on the street for a disproportionately low price and that “it crossed his mind that the items may. have been stolen,” but nevertheless found the evidence insufficient to prove he had guilty knowledge the items in his possession had been the subject of a theft. The majority accordingly pretermitted consideration of defendant’s two other assignments of error and reversed his conviction and sentence. State v. Woods, 11-799 (La.App. 3 Cir.2/1/12), 84 So.3d 773 (Decuir, Ezell, JJ.) Dissenting, Judge Genovese observed that “[i]n a light most favorable to the prosecution, there was more than ample evidence presented to the jury showing that defendant knew or had good reason to believe that these items were stolen.” Id., 11-799, p. 1, 84 So.3d at 778 (Genovese, J., dissenting). We granted the state’s application to review the decision and reverse for the reasons that follow.

The evidence at trial indisputably established that defendant had possession of the items stolen from the pawn shop by Daniel Gonzales and that they were worth over $500 although they had been pawned. The sole issue in this case, as the court of appeal acknowledged, is whether there was sufficient evidence for the jury to reasonably conclude that defendant knew or should have known the items |she purchased from Gonzales were in fact stolen. That determination is generally controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), according to which an appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984)(footnote omitted). It is also specifically governed by this Court’s jurisprudential rule that “mere possession of stolen property does not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else.” State v. Ennis, 414 So.2d 661, 662 (La.1982) (citing State v. Nguyen, 367 So.2d 342 (La.1979) and State v. Walker, 350 So.2d 176, 178 (La.1977)). The state must therefore prove that the defendant actually knew, or at least had good reason to believe, that the property had been stolen before it may obtain a conviction under R.S. 14:69. Ennis, 414 So.2d at 662. Nevertheless, this Court has found that “jurors may infer the defendant’s guilty knowledge from the circumstances of the offense.... and for the buyer and seller alike, in a transaction involving stolen goods, ‘one of the most telling indices of guilt is a low price paid by the receiver.’” State v. Chester, 97-1001, p. 3 (La.12/19/97), 707 So.2d 973, 974 (citing inter alia United States v. Prazak, 623 F.2d 152, 154-55 (10th Cir.1980)) (“Acquisition of recently stolen property at a ridiculously low price from an unknown person is itself sufficient to support an inference that the one acquiring the property knew the property was stolen.”).

In the instant case, several admissions in defendant’s statement to police provide substantial support for the state’s position that there was sufficient evidence to find that defendant knew or should have known the items he purchased 14were stolen. First, he told police that he bought the items for $35 when he subjectively believed they were worth $4,000. Second, defendant indicated he did not know the seller before the purchase. Finally, defendant admitted to police that the possibility the items were stolen was “the first thing crossed [his] mind.” As cited in Chester, buying items for such a disproportionately low price from an unknown seller is sufficient to support the inference of guilty knowledge. These facts, in conjunction with defendant’s admission that he thought the items may have been stolen, provided strong evidence supporting a conclusion that defendant had good reason to believe he was in possession of stolen property.

Thus, we conclude that it was reasonable for the jury to find defendant guilty of illegal possession of stolen things. The evidence at trial suggested no other hypothesis necessarily giving rise to reasonable doubt as to defendant’s guilty knowledge and it fully supports a finding that defendant, at least, should have known the items were stolen. Accordingly, the decision below is vacated and defendant’s conviction and sentence are reinstated, and this case is remanded to the court of appeal for consideration of the remaining assignments of error pretermitted on original appeal.

DECISION OF THE COURT OF APPEAL REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED.

WEIMER, J., would grant and docket.

      . In fact, because the items (two computers and two camcorders) were stolen from a pawn shop, they had an estimated value ranging from $720 (actual cost to the pawn shop paid to the pledgors) to nearly $1,400 taking into account the retail market value of the two camcorders after the pledgors failed to redeem them and they were forfeited to the pawn shop. La.R.S. 37:1793(A)(11); 37:1800(C).


text:
    STATE of Louisiana in the Interest of T.E.
    No. 2012-CK-0517.
    Supreme Court of Louisiana.
    June 29, 2012.
   PER CURIAM.

|, The state filed a petition to adjudicate defendant delinquent based on a violation of La.R.S. 14:95.8, illegal possession of a handgun by a juvenile. The Juvenile Court for Orleans Parish adjudicated defendant delinquent as charged and committed him to the custody of the Office of Juvenile Justice for not more than six months. On appeal, in a split panel decision, the Fourth Circuit reversed on grounds that the state’s evidence did not satisfy the requisite statutory definition of a handgun for purposes of R.S. 14:95.8, and thus, failed to carry the state’s burden of proving beyond reasonable doubt defendant’s illegal possession of a handgun. The court of appeal vacated the adjudication and thereby pretermitted defendant’s second assignment of error challenging the juvenile court’s summary disposition order. State in the Interest of T.E., 11-1172 (La.App. 4th Cir. 2/23/12), 85 So.3d 270. We granted the state’s application to review the decision below and reverse for reasons that follow.

As detailed by the evidence presented at the adjudication hearing, on April 24, 2011, New Orleans Police Officer Sean Ogden, working a detail in the Fischer Housing Development, monitored security cameras providing wide-angle views inside the housing development. Ogden described the cameras as a sophisticated ^surveillance system which allowed him to “zoom in on a license plate from maybe a block or two blocks away and actually be able to read their license plate.” The officer observed defendant, whom he knew from seeing him “all the time” in the project, sitting in the rear passenger seat of a car parked in the 2000 block of Hendee Street. Ogden then watched as defendant got out of the car holding what the officer believed was a handgun in his right hand. Ogden testified that although he could not tell make or model, “[i]t looked like a semiautomatic hand gun he was possessing in his right hand.” Defendant then tucked the object into the waistband of his pants, tightened his belt to hold it in place, pulled his shirt over it, and walked away. Ogden alerted two other security officers and they proceeded in a marked patrol unit to the area, where they spotted defendant in front of a residence on Hendee Street. The officer testified that “[wjhen [defendant] saw us pull up when we got out of the car the doors started opening up that’s when he fled on foot.” Defendant eluded the officers but found himself placed under arrest by Officer Ogden several days later.

Officer Ogden testified that he had been a police officer since 2002 and was therefore familiar with firearms. He was also familiar with the behavior of individuals who possess firearms and seek to conceal them from the police. “Like I said,” the officer told the court, “I’ve been on the force for a while and anyone that I’ve ever chased who I later found to be in possession of a firearm they ran from me initially. They knew to run from me because they knew they were in possession of an illegal weapon.” In the officer’s opinion, that pattern was “consistent with [defendant’s] behavior.”

Ogden was the only state witness to appear at the hearing but in connection with his testimony, the state introduced into evidence, and played for the court, a copy of the surveillance video showing defendant’s conduct immediately after he Lgot out of the vehicle parked on Hendee Street. Defendant did not testify but the defense called an investigator who stated that she and defense counsel had purchased a BB gun over the weekend before the hearing. Counsel introduced the gun as an exhibit to underscore for the court that what defendant had in his hand did not necessarily fall within the statutory definition of a handgun in La.R.S. 14:95.8, derived from La.R.S. 14:37.2(B), ie., “an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it.” Counsel argued that for all Officer Ogden knew, defendant held in his hand a BB gun, such as the one introduced as an exhibit at the hearing, designed to look like a semi automatic handgun but which propelled its shot by compressed air, not gunpowder.

However, the court had viewed the surveillance video and concluded that “[i]n actuality the [BB] gun and the handgun really did not look similar in my estimation of it at all.” The court noted that it was “quite clear from the video” defendant had had a firearm in his hand, not only from its appearance, but also from how defendant behaved with it, first concealing the object in his waistband with his shirt after tightening his belt to secure it, and then running as soon as the officers appeared on the scene.

On appeal, a majority on the Fourth Circuit panel emphasized Officer Ogden’s testimony under cross-examination that he did not actually zoom in on the object in defendant’s hand with his camera and therefore could not tell the make or model of what he believed was a handgun. Given that “[n]o other evidence was introduced to establish that the object was a handgun, and notably, no handgun was Lever actually recovered from T.E.,” the majority applied a civil standard of review derived from this Court’s decision in State in Interest of Batiste, 367 So.2d 784, 788 (La.1979) (“Juvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence.... the scope of review of this Court in juvenile delinquency proceedings extends to both law and the facts.”) (citations omitted), and concluded “that the officer’s testimony regarding his observations of T.E.’s mannerisms in the surveillance video while holding the object does not meet th[e] statutory definition of a handgun [provided by La.R.S. 14:37.2(B) ].” State in the Interest of T.E., 11-1172 at 4, 85 So.3d at 272. Dissenting, Chief Judge Jones observed that the majority had pronounced a new rule, for which he could find no authority and in which he could not concur, that the juvenile court “was required to determine both the make and model of the weapon before the court could determine that he juvenile in fact possessed a weapon.” T.E., 11-1172 at 1, 85 So.3d at 273 (Jones, C.J., dissenting).

We agree with Judge Jones that the majority erred in vacating defendant’s delinquency adjudication although the state generally risks an adverse decision when it fails to meet a factfinder’s expectation of what it ought to prove in a given case. See Old Chief v. United States, 519 U.S. 172, 188, 117 S.Ct. 644, 654, 136 L.Ed.2d 574 (1997) (“[Bjeyond the power of conventional evidence to support allegations and give life to the moral underpinnings of law’s claims, there lies the need for evidence in all its particularity to satisfy the jurors’ expectations about what proper proof should be.... for example, that a charge of using a firearm to commit an offense will be proven by introducing a gun into evidence.... If [those] expectations are not satisfied, triers of fact may penalize the party who disappoints them by drawing a negative inference against that party.”) (internal quotation marks and citation omitted).

15However, in the present case, the state disappointed the expectations not of the trial court but of the court of appeal which held against it the failure of Officer Ogden and his fellow officers to run defendant down when he fled and recover the gun. Under the circumstances, the court of appeal overstepped its bounds by drawing a negative inference against the state that the trial court considered and reasonably rejected as a basis for acquitting defendant because it lost sight of a settled rule applicable on review in both civil and criminal cases that an appellate court ordinarily may not substitute its appreciation of the evidence at trial for that of the factfinder. See, e.g., State v. Calloway, 07-2306, p. 10 (La.1/21/09), 1 So.3d 417, 422 (“[The] due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of the fact finder necessary to render an honest verdict.”); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (“[I]f the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”).

The juvenile court had the benefit of viewing a copy of the surveillance video observed by Officer Ogden and could judge for itself whether defendant possessed a handgun. The court had also personally viewed the BB gun introduced by the defense as an exhibit and could compare it to the object depicted in the video to assess for itself whether it created a reasonable doubt with respect to what defendant held in his hand. See, e.g., State v. Stewart, 00-2960, p. 7 (La.3/15/02), 815 So.2d 14, 17 (“Jurors viewed the videotape [of defendant’s encounter with the undercover police officers] and could draw their own conclusions about the nature of the ‘trash talking' which accompanied the initial meeting of defendant and [the IfiOfficer].”) (citing 4 J. Wigmore, Evidence, § 1157 (Chadborne rev.1972) (discussing autoptic proference, or things proved by the self-perception of the tribunal)). Finally, on the basis of what the video depicted, the court could determine for itself whether to draw a negative inference from defendant’s conduct with the object in his hand, tucking it in his waistband and securing it, then concealing it under his shirt, and running with it at the first sight of the officers arriving on the scene. See State v. Davies, 350 So.2d 586, 588 (La.1977) (“Evidence of flight, concealment, and attempt to avoid apprehension is relevant. It indicates consciousness of guilt and, therefore, is one of the circumstances from which the jury may infer guilt.”); cf. State v. Harris, 02-1589, p. 6 (La.5/20/03), 846 So.2d 709, 713-14 (state’s inadvertent failure to introduce report of chemical analysis did not require reversal of defendant’s conviction for attempted possession of cocaine: “Identification of a controlled substance does not require direct evidence if available circumstantial evidence establishes its identity beyond a reasonable doubt.... Identification based upon familiarity through law enforcement coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance.”).

Given the identification made by an experienced police officer familiar with firearms, of an object made present to the court through the surveillance video for its own inspection, coupled with the circumstantial inferences arising from defendant’s concealment of, and flight with, the object, the juvenile court adjudication of delinquency based on a violation of La.R.S. 14:95.8 was not clearly or manifestly erroneous, and one that any rational trier of fact could make, and the court of appeal erred in concluding otherwise. Cf. State v. Captville, 448 So.2d 676, 680 (La.1984) (“When a case involves circumstantial evidence, and the jury reasonably rejects |7the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.”).

The decision below is reversed and this case is remanded to the court of appeal to consider defendant’s remaining assignment of error pretermitted on original appeal.

      . La. R.S. 14:95.8(A) provides that "[i]t is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person.” Subsection (D) of the statute further provides that "[f]or purposes of this Section[,] ‘handgun’ means a firearm as defined in R.S. 14:37.2, provided however, that the barrel length shall not exceed twelve inches.”