author: CLARK, J.

text:
    Johnnie R. KOHN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1773.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.

      Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Johnnie Kohn appeals his convictions of attempted sexual battery and false imprisonment by force. We affirm without comment the trial court’s denials of mistrial and new trial pertaining to the State’s comments during closing argument. We write only to discuss Appellant’s argument that the trial court erroneously denied his pre-trial motion to suppress the evidence found in his residence by police officers who entered without a warrant. Because the totality of the circumstances gave the officers a reasonable basis to rely on the victim’s apparent authority to consent to entry of the apartment, the convictions on appeal are affirmed.

At the suppression hearing, one of the law enforcement officers involved testified that he responded to a call from a home near Appellant’s apartment and observed a woman standing outside that home on the porch wearing only a bathrobe. The caller and owner of the home explained to the officer that the woman showed up at the house with no clothing, banged on the door, claimed that she had been raped and begged the homeowner to call the police. The homeowner made the call and provided the woman with the robe. The officer then spoke to the woman, who described how she came to be at that location without clothing, keys, or any personal effects. She told the officer that she was residing at Appellant’s apartment at his invitation, that she had a key to the apartment, and that her name had been added to the lease. After an evening of using intoxicants with Appellant and others, the woman and Appellant were left alone in the apartment. Appellant then physically attacked the woman, threatened to shoot her if she left the apartment, and “ripped her dress completely off from the center down and that’s how she ended up nude.” Appellant then reclined on the bed in the apartment with no clothing and an ashtray in his lap, and the woman sat next to him “until he passed out.” She then fled the apartment, leaving all her belongings, including her clothing.

Based on this information, the officer transported the woman back to Appellant’s apartment. The officer testified that the woman assured him that she lived there and that she consented to the officer’s entry into the residence. The woman remained in the vehicle while the officer approached the open door of the apartment. From the doorway, the officer could see the interior of the apartment, including into the bedroom, where he observed Appellant lying naked on the bed with an ashtray in his lap, positioned exactly as the woman had described he would be. After calling out to Appellant and getting no response, the officer entered the apartment and found a dress where the woman said it would be located, “ripped down the center” just as she had described. The woman eventually entered the apartment as well, dressed herself, and retrieved her purse. Appellant and the woman were transported to the Sheriffs office to speak with an investigator. The officer testified that he never saw or heard anything which made him doubt the woman’s authority to enter the apartment or consent to his entry into the apartment.

While the Fourth Amendment usually prohibits law enforcement officers from entering an individual’s home without a warrant, “a search conducted pursuant to a valid consent is constitutionally permissible.” Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it ... may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Mutual use of the property by persons with joint access is commonly recognized as a sufficient relationship to the premises to validly consent to a search. See State v. Purifoy, 740 So.2d 29 (Fla. 1st DCA 1999). The right of a third party to consent to entry of a residence is not dependent upon traditional property law, but the “common authority over or other sufficient relationship to the premises.” Marganet v. State, 927 So.2d 52, 55 (Fla. 5th DCA 2006). In cases of mutual use of the property, “it is reasonable to recognize that any of the'co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Marganet v. State, 927 So.2d at 55, quoting United States v. Matlock, 415 U.S. at 170, 94 S.Ct. 988.

In light of the foregoing, the judgment required of law enforcement officers to determine whether a third person has the authority to consent to the entry and search of the premises is held to a “reasonableness” standard under the totality of the circumstances. See Brock v. State, 24 So.3d 703, 704 (Fla. 1st DCA 2009). This objective standard was described in Illinois v. Rodriguez, 497 U.S. 177, 199, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) thusly: “would the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” See also Marganet v. State, 927 So.2d 52, 56 (Fla. 5th DCA 2006).

The totality of the circumstances in this case justified the officer’s reliance on the woman’s authority to consent to the search. The evidence presented at the suppression hearing supported the officers’ reasonable determination that she had sufficient connection to the apartment to constitute her actual authority to consent. Ferguson v. State, 58 So.3d 360 (Fla. 4th DCA 2011) (female’s presence outside apartment, practically naked and beaten, her statement that she lived there with appellant, that all her clothes and belongings were inside, including her key, and that appellant had physically abused her and locked her out were sufficient indications to officers of female’s common authority and valid consent to entry). The officer was not required to wait to enter until he confirmed or verified the woman’s claim that she lived at the apartment, had a key, was named on the lease, and had left all her belongings, including her clothing, in the apartment when she fled from Appellant. The additional inquiries urged by Appellant might be required only where the basis for the consenter’s authority is unclear. See State v. Young, 974 So.2d 601 (Fla. 1st DCA 2008).

AFFIRMED.

WOLF and THOMAS, JJ., concur.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Harry Lynn FORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5866.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2011.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Harry Lynn Ford appeals an order revoking his community control and the resulting five-year prison sentence. The trial court erred in finding that Mr. Ford violated conditions (5) and (7); the State failed to establish Mr. Ford’s constructive possession of marijuana found in a car in which he was a passenger, in his recording studio, and in his apartment. Because we cannot determine whether the trial court would have revoked Mr. Ford’s community control based only upon his violations of conditions (6) and (15), we must reverse.

Presumably suspecting illegal drug activity, Tampa Police Officer Schlemmer was conducting surveillance of Mr. Ford and his recording studio business. Officer Schlemmer saw Mr. Ford outside the studio speaking with Community Control Officer Freed-Vest. After Officer Freed-Vest left, Officer Schlemmer saw an unknown man and woman in a white car approach Mr. Ford. They exited the car and entered the studio with Mr. Ford. When they came out, the man appeared to have stuffed something in the front of his shorts. They got into the car; the man drove, the woman sat in the front passenger seat, and Mr. Ford sat in the passenger seat behind the driver. Officer Schlemmer contacted Officer Freed-Vest because Mr. Ford’s community control conditions confined him to his office and his home. Officer Freed-Vest arrived at the studio after Mr. Ford had left in the white car. She found a Mr. Jackson there. She asked him to have Mr. Ford call her, and then she left.

Eventually, the white car returned. Mr. Ford stayed in the back seat while the unknown man went inside the studio. When he came out, he, the woman, and Mr. Ford drove away again. Officer Schlemmer followed them and stopped the car when it ran a stop sign. He contacted Officer Freed-Vest. When she arrived, the car was still running and the doors were open. Officers had already placed Mr. Ford, the man, and the woman in squad cars.

Marijuana in the Car

At the traffic stop scene, Officer Freed-Vest saw a gallon-sized ziplock bag of marijuana on the back seat passenger-side floorboard and a white trash bag containing a second large ziplock bag of marijuana on the passenger-side back seat. According to Officer Schlemmer, Mr. Ford told him that the driver had handed the contraband to him when the officers stopped the car and told Mr. Ford to hide it in the back seat armrest compartment.

When Officer Freed-Vest spoke to Mr. Ford in the squad car, he denied that the marijuana was his. He told her that he thought both ziplock bags had been in the white trash bag and that one had fallen out onto the floor board when the driver threw them into the back seat. The officers arrested Mr. Ford for possession of 1104 grams of marijuana and possession of marijuana with intent to sell or deliver. The trial court found that Mr. Ford committed two violations of community control condition (5), as charged, by failing to live and remain at liberty without violating any law and one violation of condition (7) by possessing drugs not prescribed by a physician.

The evidence, however, was insufficient to establish that Mr. Ford possessed the marijuana. “All possession crimes may be either actual or constructive. ... Possession is actual when the contraband is (1) in the defendant’s hand or on his person, (2) in a container in the defendant’s hand or on his person, or (8) within the defendant’s ‘ “ready reach” ’ and the contraband is under his control.” Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009) (quoting Harris v. State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007)). Despite Mr. Ford’s admission that the driver tossed the marijuana to him to hide, this momentary possession did not establish Mr. Ford’s dominion and control over the contraband. See Campbell v. State, 577 So.2d 932, 935 (Fla.1991) (holding defendant’s temporary possession of kilo of cocaine in owner’s presence to inspect it before (unconsummated) purchase did not infer dominion or control); Roberts v. State, 505 So.2d 547, 549 (Fla. 3d DCA 1987) (holding defendant’s transitory touching of bale of marijuana when he weighed it to be purchased by third party did not establish dominion and control for possession charge). Therefore, Mr. Ford did not have actual possession when stopped by Officer Schlemmer.

To prove constructive possession of the contraband, the State must show that Mr. Ford knew of its presence and “had the ability to exercise dominion and control over it.” Wagner v. State, 950 So.2d 511, 512 (Fla. 2d DCA 2007). The fact that the car did not belong to him weighs against a finding of constructive possession. See Martoral v. State, 946 So.2d 1240, 1243 (Fla. 4th DCA 2007); Harris v. State, 647 So.2d 206, 208 (Fla. 1st DCA 1994) (citing Poitier v. State, 525 So.2d 472, 473 (Fla. 5th DCA 1988)). And, as described above, the momentary possession by Mr. Ford does not equate to dominion and control. Thus, on the record before us, the evidence was insufficient to satisfy the preponderance of the evidence requirement to find violations of community control conditions (5) and (7) based upon Mr. Ford’s possession of the marijuana discovered in the car. See Martoral, 946 So.2d at 1243 (holding evidence that marijuana was found in jointly occupied vehicle in open view was insufficient to establish defendant’s dominion and control by preponderance of evidence); Butera v. State, 58 So.3d 940, 942-43 (Fla. 2d DCA 2011) (holding evidence was insufficient to establish preponderance of evidence of appellant’s ability to control drugs, where drugs found in compartment on back of passenger seat and appellant was sole back-seat passenger).

Marijuana in the Studio

Officer Vasconi arrived at the scene of the traffic stop and suspected there were drugs at the recording studio. Mr. Ford denied it and consented to a search of the studio. Officers Vasconi and Freed-Vest discovered a blue bag in plain view on the floor in a back room. They opened it and found a digital scale and a one-pound bag of marijuana. Officer Freed-Vest also found a large ziplock bag of marijuana in a closed shoe box next to a sound board. They found a total of 977 grams of marijuana. Neither cache was in plain view; each was inside a closed container. Neither container displayed any owner identification, and the officers did not test for fingerprints. As to this contraband, the trial court found that Mr. Ford violated community control condition (7) by possessing drugs not prescribed by a physician.

Again, the evidence was insufficient to establish that Mr. Ford constructively possessed the marijuana. Where contraband is discovered in jointly occupied premises, the defendant’s “knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership [of the premises] but must be established by independent proof.” Brown v. State, 428 So.2d 250, 252 (Fla.1983); see also Diaz v. State, 884 So.2d 387, 389 (Fla. 2d DCA 2004) (reversing constructive possession conviction when drugs were found in shoe box accessible to three people and State failed to present independent proof of defendant’s knowledge).

Loyd v. State, 677 So.2d 76 (Fla. 2d DCA 1996), is instructive. The trial court revoked Loyd’s probation after police found drugs in the building where he worked and lived. Employees, customers, and friends had access to the residence portion of the building. Id. at 77. Two people were there when officers arrived to conduct the search. Id. Loyd was not present and later denied knowledge or possession of the drugs. Id.. We reversed, holding that the State failed to prove constructive possession because “[n]one of the evidence seized was submitted for fingerprint analysis, no evidence showed the drugs were found in proximity to belongings known to be Loyd’s, no testimony placed the drugs in Loyd’s possession, [] he denied knowledge of the drugs ..., and two other people were in the residence during his absence.” Id. at 78. Similarly here, the officers failed to submit any fingerprint analysis, no testimony placed the drugs in Mr. Ford’s possession, he denied knowledge of the drugs, and at least two other people were in the studio in Mr. Ford’s absence. See Wagner, 950 So.2d at 512-13 (citing Law, 559 So.2d at 188). Thus the State failed to establish by a preponderance of the evidence that Mr. Ford constructively possessed the marijuana in the studio because the studio was jointly occupied and the State did not submit independent proof of Mr. Ford’s knowledge of the marijuana’s presence or his ability to exercise control over the marijuana. Accordingly, the trial court erred in finding that Mr. Ford violated community control condition (7) based upon his possession of the marijuana found in the studio.

Marijuana in the Apartment

Mr. Ford’s girlfriend, Ms. Davis, came to the studio after Mr. Ford’s arrest. Officer Freed-Vest asked her if there were any drugs at the apartment that she shared with Mr. Ford. Ms, Davis replied that she did not think so. She consented to a search of the apartment after Officer Freed-Vest told her that they could search, even -without her permission, under the conditions of Mr. Ford’s community control. Two officers followed Ms. Davis to the apartment. Mr. Ford had already been transported to the police station. In the bedroom closet, Officer Vasconi found a digital scale and a large pickle jar containing 61 grams of marijuana wrapped in plastic bags. Officer Freed-Vest testified that she saw men’s clothing in the closet, but she was unsure whether there was any women’s clothing. As to this contraband, the trial court found that Mr. Ford violated community control condition (7) by possessing drugs not prescribed by a physician.

The State failed to prove constructive possession of the marijuana-filled jar and scale. The bedroom in which they were found was jointly occupied. The contraband was concealed from view in the bedroom closet. The State did not present any independent proof of Mr. Ford’s knowledge of the presence of or his ability to exercise control over the marijuana and scale discovered in the apartment, and thus the circuit court erred in finding a violation of community control condition (7) based upon Mr. Ford’s possession of this contraband. See Wagner, 950 So.2d at 513 (holding no constructive possession where drugs found in shared apartment concealed under dresser, in men’s pockets of men’s clothing in closet, and in cigar box and no independent evidence showed items belonged to defendant); Diaz, 884 So.2d at 389; Loyd, 677 So.2d at 77-78.

Conclusion

The trial court abused its discretion in ruling that Mr. Ford violated his community control conditions (5) and (7). See Eubanks v. State, 903 So.2d 1005, 1006 (Fla. 2d DCA 2005) (using abuse of discretion standard to review community control violation). Mr. Ford does not appeal the trial court’s ruling that he also violated conditions (6), associating with persons involved in criminal activity, and (15), failing to remain confined to his approved residence. It is unclear from the record whether the trial court would have revoked Mr. Ford’s community control and imposed the same sentence based on violations of these two conditions alone. See Williams v. State, 787 So.2d 180, 182 (Fla. 2d DCA 2001); Ubiles v. State, 23 So.3d 1288, 1292 (Fla. 4th DCA 2010). Therefore, we reverse the order of revocation and remand for the trial court to consider whether the two remaining violations alone warrant revocation and, if it so finds, to enter a written order in conformity therewith.

Reversed and remanded.

WALLACE, J., and LENDERMAN, JOHN C., Associate Judge, Concur.

      . Mr. Ford had been convicted for possession of cannabis with intent to sell or deliver, possession of drug paraphernalia, fleeing and attempting to elude a police officer, and driving while license canceled, suspended, or revoked. See §§ 316.1935, 322.34(2)(a), 893.13, and 893.147, Fla. Stat. (2008).

      . The scale and the marijuana were not in plain view because they had been inside of the blue bag.

      . The record shows that warrantless searches were not a condition of Mr. Ford’s community control. Submission to warrantless search is a special condition that must be specified on the order. § 948.03, Fla. Stat. (2009). On Mr. Ford's community control order, there is no check mark in special conditions box 20, "You shall submit your person, property, place of residence, vehicle or personal effects to a warrantless search at any time, by any probation or community control officer or any law enforcement officer.” Mr. Ford argued at the hearing that Ms. Davis’s consent was not voluntary, and thus the search was illegal, because the officers told her that they had legal authority to search without consent. See Bumper v. N.C., 391 U.S. 543, 548-50, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Luna-Martinez v. State, 984 So.2d 592, 598 (Fla. 2d DCA 2008). Mr. Ford did not raise the legality of the search on appeal.


author: SILBERMAN, Chief Judge.

text:
    Freddie L. SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1813.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2011.
   SILBERMAN, Chief Judge.

Freddie L. Solomon appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Solomon claimed that he was entitled to additional jail credit on a Polk County sentence for time spent in custody in Calhoun County. We reverse because the attachments to the postconviction court’s order do not conclusively refute his claim.

In February 2009, Solomon admitted to a violation of probation (VOP) in two cases, and a Polk County court sentenced him to fifty-five months in prison concurrent with each other and with any other sentence being served. Solomon’s judgment and sentence reflects that he was awarded 283 days of jail credit, and a postconviction court subsequently awarded him an additional 91 days of credit under Florida Rule of Criminal Procedure 3.800(a). In his rule 3.850 motion, he claimed that he was entitled to an additional 170 days of jail credit for time spent in custody in Calhoun County from March 9, 2008, to August 25, 2008.

Solomon’s rule 3.850 motion asserted several arguments in support of his claim. First, Solomon asserted that he was entitled to the jail credit because he was arrested in Calhoun County based on a warrant for the VOP in Polk County. Solomon attached a March 9, 2008, Calhoun County arrest affidavit that reflects active warrants in Polk County for Solomon’s VOP and includes the VOP among the list of charges. Second, Solomon contended that he was precluded from posting bond in Calhoun County because of a detainer that had been lodged in Polk County. Solomon attached an order from his first appearance which contains a handwritten notation, “Hold for Polk Co.” Finally, Solomon asserted that the Polk County court that sentenced him for the VOP had, by oral pronouncement, awarded him jail credit for his time spent in custody in Calhoun County. Although his written sentence does not reflect this jail credit award, Solomon asserted that the sentencing court’s oral pronouncement should control. Solomon attached an excerpt of the VOP proceeding transcript in which the court discussed his request for credit for time served.

The postconviction court rejected Solomon’s first argument based on its determination that, under Gethers v. State, 838 So.2d 504, 506 (Fla.2003), Solomon was not entitled to jail credit for the time he served in Calhoun County until the Polk County arrest warrant was served on him on August 26, 2008. The court attached the Polk County booking sheet, which was dated August 26, 2008, as evidence of the date the warrant was served. Although not specifically stated in the court’s order, it appears that the court rejected Solomon’s second argument, concerning posting a bond, for the same reason.

The postconviction court rejected Solomon’s third argument based on its determination that the sentencing court had stated that it was awarding Solomon only the jail credit for the time he served in Calhoun County after the Polk County warrant was served. The postconviction court explained that the sentencing court had relied on Solomon’s representations that he had been served with the Polk County warrant while in jail in Calhoun County and was awaiting transfer to Polk County. The postconviction court determined that, because the warrant was not actually served until August 26, 2008, Solomon’s written sentence properly did not award him credit prior to that date.

If a defendant is actually arrested in one county based upon an arrest warrant issued by another county, the defendant is entitled to credit for time served in the county where he was arrested. Howard v. State, 23 So.3d 1273, 1274 (Fla. 2d DCA 2010); Bedford v. State, 880 So.2d 1265, 1266 (Fla. 2d DCA 2004); Thomas v. State, 863 So.2d 1277, 1278 (Fla. 2d DCA 2004). In this case, Solomon alleged that he was arrested in Calhoun County on the Polk County VOP warrant. In support of that allegation, he presented the Calhoun County arrest affidavit which seems to reflect that Solomon was actually arrested in Calhoun County on March 9, 2008, on the Polk County VOP charges in addition to the Calhoun County charges. The Polk County booking sheet that the postconviction court attached to its order denying relief does not conclusively refute this.

Additionally, the postconviction court’s reliance on Gethers to deny relief on this claim is misplaced. In Gethers, the supreme court addressed whether “a defendant who is in jail in a specific county pursuant to an arrest on one or more charges” is entitled to “credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.” 838 So.2d at 505. The court recognized that it had previously held that a defendant is entitled to jail credit for the time he was incarcerated in one county when a warrant for different offenses had been issued and served by another county during his period of incarceration. Id. at 506 (citing Daniels v. State, 491 So.2d 543 (Fla.1986)). The court declined to extend that holding to cases in which only a detainer had been lodged because a detainer is a request to hold a defendant and, unlike an arrest warrant, is not a definitive mandate to do so. Id. at 507. Under those circumstances, a defendant is not in custody because of the detainer. However, the court provided an exception for cases in which the defendant was subject to release from jail but was being held because a detainer from a different county had been lodged against him. See id.; see also Bonilla v. State, 884 So.2d 1072, 1073 (Fla. 5th DCA 2004).

In this case, Solomon alleged that he was being held in Calhoun County based on a Polk County detainer that had been lodged against him. Solomon presented a Calhoun County first appearance order which supports this allegation. If Solomon would have been released from jail in Calhoun County but for the Polk County de-tainer, he would be entitled to credit for time served.

Thus, Solomon would be entitled to credit for time served if he was, in fact, actually arrested on the Polk County VOP warrant in Calhoun County. He would also be entitled to credit if he would have been released from jail in Calhoun County but for a Polk County detainer. Accordingly, we reverse the denial of Solomon’s claim and, as to Solomon’s first two arguments, remand for the postconviction court to either attach portions of the record conclusively refuting Solomon’s claim or to conduct an evidentiary hearing on the issue.

Regarding Solomon’s third argument, the record reflects that the sentencing court intended to award Solomon the jail credit to which he was legally entitled. Because this portion of Solomon’s claim is legally interlocked with the rest of his claim, the trial court will need to reconsider it on remand.

Reversed and remanded.

WHATLEY and LAROSE, JJ., Concur.


author: PER CURIAM.

text:
    Venda WEST, Appellant, v. UNIVERSITY OF MIAMI and Gallagher Bassett Services, Appellees.
    No. 1D10-4658.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.

      Edward Sehroll, Miami, for Appellant.
    Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Appellees.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny Appellant’s motion for rehearing. We grant Appellees’ motion for rehearing to the extent that we withdraw the opinion issued on July 22, 2011, and substitute the following opinion in its place.

In this workers’ compensation appeal and cross-appeal, Claimant and the Employer/Carrier (E/C) both challenge an order of the Judge of Compensation Claims (JCC) that awarded some benefits and denied others. We affirm the order, except as to the following. First, we reverse the award of temporary partial disability benefits for the period from January 23, 2007, through March 3, 2008, because the JCC found Claimant reached maximum medical improvement before January 23, 2007. See § 440.15(4), Fla. Stat. (2005). Second, we reverse the portion of the award of costs and attorney’s fees associated with the aforementioned award. Third, we reverse the denial of penalties on the late payment of temporary partial disability benefits for the period from November 5, 2005, through June 13, 2006, because an award of penalties on late payment of indemnity benefits is not discretionary, but mandatory. See § 440.20(6)(a), Fla. Stat. (2005); Bell v. Univ. of Fla., 652 So.2d 460 (Fla. 1st DCA 1995). See generally Jones v. City of St. Petersburg, 46 So.3d 637 (Fla. 1st DCA 2010) (defining when penalties are due). Fourth, because the JCC failed to determine whether the claim for a plastic surgeon was properly before him, see Univ. of Miami v. West, 8 So.3d 1193, 1194 (Fla. 1st DCA 2009), we remand for a ruling on that issue and, should the JCC determine the claim was indeed properly before him, for a ruling on the merits of the claim for a plastic surgeon.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings as indicated herein.

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


text:
    Jorge Luis TORRES, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, Formerly known as Bank’s Trust Company, as Trustee and Custodian for Ixis 2006-He2 by: Saxon Mortgage Service, Inc., f/k/a, Meritech Mortgage Services, Inc., as its Attorney-In-Fact, Appellee.
    No. 1D11-1276.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Jorge Luis Torres, pro se, Appellant.

      Robert R. Edwards of Law Offices of Marshall C. Watson, P.A., Ft. Lauderdale, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 12, 2011, the appeal is hereby dismissed as untimely. In light of the dismissal, the appellee’s Motion to Dismiss Appeal, Strike Appellant’s Initial Brief, or For Other Relief, filed on June 27, 2011, is denied.

DISMISSED.

BENTON, C.J., HAWKES, ROWE, JJ., concur.


text:
    Marshall Neil DANIELS and Penny Daniels, Appellants, v. Arthur CARLSON, Appellee.
    No. 1D11-3836.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Patrick R. Frank of H. Richard Bisbee, P.A., Tallahassee, for Appellants.
    No appearance for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 8, 2011, the Court has determined that claims disposed of by the lower tribunal in the order on appeal are inextricably intertwined with those claims left pending. Therefore, the July 20, 2011, Final Judgment of Foreclosure and Reformation of Instrument does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, the appeal is hereby dismissed as premature.

DISMISSED.

BENTON, C.J., HAWKES, and ROWE, JJ., concur.


text:
    Charles Giddings CAYE, Jr., Husband, Appellant, v. Deborah Ann CAYE, Wife, Appellee.
    No. 1D11-3944.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Samuel S. Jacobson and Stephanie Suss-man Eubanks of Bledsoe, Jacobson, Schmidt, Wright, Lang & Wilkinson, Jacksonville, for Appellant.
    Sandra J. Mathis of Rogers Towers, P.A., Jacksonville, for Appellee.
   PER CURIAM.

The order of the trial court is reversed and the cause is remanded for further proceedings. See Schwab v. Schwab, 864 So.2d 82 (Fla. 1st DCA 2003).

WOLF, LEWIS, and RAY, JJ., concur.


author: DAVIS, Judge.

text:
    Sebastian Joseph DRAULANS, Appellant, v. Deidra Jean DRAULANS, Appellee.
    Nos. 2D09-2420, 2D09-4509.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2011.
    Cynthia L. Greene of Law Offices of Greene Smith & Associates, P.A., Miami, and Bergermann & Seliger Law Firm, Ft. Myers, for Appellant.
    Deidra Jean Draulans, pro se.
   DAVIS, Judge.

Sebastian Joseph Draulans, the Former Husband, challenges the final judgment of dissolution of his marriage to Deidra Jean Draulans, the Former Wife, and the subsequent Amendment to Final Judgment on Fees, Costs, etc. We consolidated these appeals and affirm both judgments except as provided herein.

The trial court dissolved the parties’ seven-year marriage and provided for an equitable distribution of the marital assets and liabilities, set child custody and visitation, and awarded child support. By the subsequent judgment the trial court also ordered the Former Husband to pay the Former Wife’s attorney’s fees and costs. On appeal, the Former Husband challenges the rulings related to the parenting of the child, the limitations placed on his visitation with the child, and the awards of rehabilitative alimony and attorney’s fees. We affirm the trial court’s rulings on all of these challenges except for the provision of the final judgment awarding rehabilitative alimony.

By the final judgment, the trial court determined that the Former Wife was not entitled to permanent periodic alimony. Further, the final judgment noted that the Former Husband had agreed to pay rehabilitative alimony in the amount of $8500 a month for three years in order to allow the Former Wife to complete her education so that she could become a school teacher. Although the final judgment awards the Former Wife $3500 a month as rehabilitative alimony and states that the purpose was for the Former Wife to complete her education, the trial court did not provide an end date for the payments. The Former Husband argues that such an open-ended award is erroneous, and we agree.

There was a factual dispute between the parties as to whether the Former Wife could complete her education in three years or whether she would need longer. Although the rehabilitative award was specifically made for the purpose of the Former Wife’s education, there was no time period established. It is error to fail to set a termination date for the payment of rehabilitative alimony. Mayo v. Mayo, 619 So.2d 513 (Fla. 4th DCA 1993).

Accordingly, we reverse the provision of the final judgment awarding rehabilitative alimony and remand for the court to reconsider this issue. We affirm the remainder of the final judgment and the judgment awarding attorney’s fees without comment.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and KELLY, JJ., Concur.


text:
    Randolph WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1885.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 2011.
    Carlos J. Martínez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   CONFESSION OF ERROR

PER CURIAM.

Based upon the State’s proper confession of error, we hold that the trial court erred in reclassifying defendant’s trafficking conviction from a first-degree felony to a life felony, pursuant to section 775.087(1), Florida Statutes (2003) (providing, in part, that felony must be reclassified to a higher degree when the defendant commits the offense with a firearm). As the State concedes, the record lacks the required evidence that the defendant had physical possession of a firearm during the commission of the offense. See Campbell v. State, 935 So.2d 614, 617-18 (Fla. 3d DCA 2006); Green v. State, 18 So.3d 656, 658 n. 2, 659 n. 4 (Fla. 2d DCA 2009); Postell v. State, 971 So.2d 986, 988-89 & n. 5 (Fla. 5th DCA 2008); Parker v. State, 906 So.2d 1273 (Fla. 5th DCA 2005). Accordingly, we reverse and remand for the trial court to strike the firearm enhancement and to re-sentence the defendant for the first-degree felony offense of trafficking.

Reversed and remanded.


author: WARNER, J.

text:
    Sandy LEVY, Appellant, v. Daniel JACOBS, Appellee.
    No. 4D10-1680.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.
    Jeffrey M. Harris of Jeffrey M. Harris, P.A., Fort Lauderdale, for appellant.
    Charles T. Whitelock of Charles T. Whitelock, P.A., Fort Lauderdale, for ap-pellee.
   On Motion for Rehearing.

WARNER, J.

We withdraw our prior opinion and substitute the following in its place.

Appellant, Sandy Levy, timely appeals a final order entering an injunction against him for protection against repeat violence. He argues that the court erred in entering the injunction, because two incidents of violence against the petitioner did not exist. Based upon the facts of this case, we find that the two acts on which the trial court based its injunction were separated by both time and space. Therefore, we affirm.

On January 28, 2010, Sandy Levy and Daniel Jacobs were residents at the same condominium building in Fort Lauderdale, Florida. That day, Levy was with his dog near the entrance of the building, while Jacobs was walking toward the building after exiting his car. The men encountered each other near the valet stand. For reasons that are unclear in the record, the men started arguing. Jacobs testified that while they were outside the building, Levy cursed at him and came right up to him. Jacobs put up his hand as Levy was approaching him and told him not to get so close. His hand brushed Levy’s chest, and Levy then accused Jacobs of hitting him. Levy hit Jacobs in the chest. Jacobs denied provoking Levy.

Jacobs then entered the building and talked to the desk clerk about whether he should call the police. Between five and seven minutes after the encounter outside, Levy walked into the building. Levy was screaming and cursing. Levy then got in Jacobs’ face again, grabbed Jacobs’ neck, and threw him on the floor. Jacobs was shocked and petrified. Levy stood over him, threatening to hit him if he got up. A building employee intervened and was able to get Levy away from Jacobs.

Jacobs filed a petition against Levy for an injunction for protection against repeat violence, alleging that the attack outside the building and the attack inside the lobby were two separate incidents of violence. The case proceeded to an evidentiary hearing, where Jacobs testified to the facts set forth above. Jacobs also introduced photographs of his injuries, as well as selected still images from the security videos of the incident, which depicted what occurred both inside and outside the building. Additionally, a valet gave testimony which was consistent with Jacobs’ version of what occurred outside the building. Levy did not testify as to his actions during the incident, although he told the court that he had moved from the condominium, yet he was still on the Board of Directors and had business on the premises.

Following the presentation of testimony, Levy moved for a directed verdict. Relying upon Darrow v. Moschella, 805 So.2d 1068 (Fla. 4th DCA 2002), Levy’s counsel argued that the request for an injunction should be denied because there was only one continuous incident of violence, which was not separated by time or distance. The trial court disagreed, finding that there was a break of five minutes between the incidents and one occurred outside the lobby and the second one inside the lobby. Finding two separate acts, the court entered the injunction, requiring Levy to stay at least twenty feet away from Jacobs at all times. Levy appeals.

Section 784.046(2), Florida Statutes (2009), creates a cause of action for an injunction for protection against repeat violence. “Violence” is defined under the statute as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a), Fla. Stat. (2009). “Repeat violence” is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b), Fla. Stat. (2009).

In order to support an injunction against repeat violence, there must be at least two qualifying incidents of violence. See Smith v. Melcher, 975 So.2d 500, 502-03 (Fla. 2d DCA 2007) (“An injunction for protection against repeat violence is properly entered only when there are two incidents of violence within the designated time period.”); Long v. Edmundson, 827 So.2d 365, 366-67 (Fla. 2d DCA 2002) (holding that although incident in which respondent waved a gun and pushed petitioner was sufficient to constitute an act of violence, the threat on petitioner’s answering machine did not qualify as second incident); see also Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006); Santiago v. Towle, 917 So.2d 909, 910 (Fla. 5th DCA 2005). An appellate court reviews an order granting an injunction for protection against repeat violence to determine whether each alleged act of violence is supported by competent, substantial evidence. Shocki v. Aresty, 994 So.2d 1131, 1132 (Fla. 3d DCA 2008).

Multiple acts stemming from a single violent incident do not constitute “repeat violence” under section 784.046 where those acts were not separated by time or distance. See Gasilovsky v. Ben-Shimol, 979 So.2d 1179, 1180 (Fla. 3d DCA 2008) (“Here, the trial judge based his findings solely on three acts stemming from a single violent incident. These acts were not separated by time or distance. Thus, the trial court’s ruling does not support a finding of the two incidents of violence and/or stalking necessary to constitute repeat violence under the statute.”).

Our opinion in Darrow, 805 So.2d 1068, is illustrative. There, Darrow and Mos-chella were involved in an escalating confrontation on a golf course. Darrow bumped Moschella in the chest, causing Moschella to back up. Darrow then approached Moschella again and the brim of his hat hit Moschella’s forehead. Moschel-la knocked Darrow’s hat off, prompting Darrow to hit him five or six times. After a brief pause, Darrow came at Moschella again, but was restrained by other golfers. Id. at 1069. The trial court entered an injunction for protection against repeat violence against Darrow. On appeal, this court reversed the injunction, holding that the case did not involve “repeat violence” within the meaning of section 784.046. Id. at 1068. This court reasoned that there was only one “incident” of violence within the meaning of section 784.046(l)(b), and explained: “The stages of Darrow’s confrontation with Moschella were not separated by time or distance. Prior to their golf course encounter, Darrow had never had any dealings, direct or indirect, with Moschella.” Id. at 1069.

In the present case, however, competent substantial evidence supported the trial court’s conclusion that Levy’s attacks on Jacobs were separate incidents of violence. Although the two attacks occurred on the same premises, the first occurred outside the building and the second occurred inside the building. Furthermore, unlike Darrow, in this case the record evidence demonstrated that in addition to occurring in different locations, there was a temporal break of approximately five minutes between the incidents. This was a sufficient temporal break to allow Levy time to pause, reflect, and form a new intent before the second attack. Cf. Clinton v. State, 970 So.2d 412, 414 (Fla. 4th DCA 2007) (holding that no double jeopardy violation occurred where the defendant stabbed the victim, the victim walked towards a convenience store and collapsed, and the defendant then stabbed the victim again; each temporal break allowed the defendant to reflect and form a new criminal intent for each stabbing). Accordingly, the trial court could conclude that there were two separate incidents of violence in this case, rather than a single continuous incident of violence. As this was a finding of fact for which there was competent substantial evidence, we uphold the trial court’s ruling.

Because this case involved “repeat violence” within the meaning of section 784.046(l)(b), there was a legal basis for the injunction. We therefore affirm.

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


author: TAYLOR, J.

text:
    Edith NOWICKI, individually and as personal representative of the Estate of John E. Nowicki, III, Appellant, v. The CESSNA AIRCRAFT COMPANY, Appellee.
    No. 4D09-4949.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2011.

      Maureen E. Lefebvre of Colson Hicks Eidson, Coral Gables, and Sean M. Cleary of Sean M. Cleary, P.A., Miami, for appellant.
    Carlos F. Gonzalez, Brant C. Hadaway and Gerardo Rodriguez-Albizu of Diaz Reus & Targ, LLP, Miami, and Stephen F. Coxhead of Wilson Elser Moskowitz Edel-man & Dicker LLP, Miami, for appellee.
   TAYLOR, J.

Appellant Edith Nowicki, as personal representative of the Estate of John E. Nowicki, III, appeals from an order granting summary judgment in favor of appel-lee, Cessna Aircraft Company. The trial court ruled that the lawsuit was barred by the eighteen-year statute of repose for lawsuits against general aviation aircraft manufacturers provided in the General Aviation Revitalization Act of 1994 (GARA). 49 U.S.C. § 40101. We agree and affirm the order for the reasons stated below.

On June 26, 2008, a twin-engine Cessna Model 414 aircraft ran out of fuel during flight and crashed near North Fort Myers, Florida. Two passengers died: one was John E. Nowicki, III. The pilot, Jonathon Lace, survived. Although it is undisputed that the airplane crashed because it did not have enough fuel, appellant maintained that Nowicki’s death was caused by a defective rear passenger seat, which detached from the rails and caused Nowicki to violently strike his head inside the airplane on or before impact.

Appellant filed a five-count complaint asserting claims against Cessna for strict liability and negligence in manufacturing a defective passenger seat system in the Model 414 aircraft. Cessna moved to dismiss the action. The motion alleged that Cessna manufactured and delivered the Model 414 to its first owner in 1970, and that because the crash occurred thirty-three years after Cessna delivered the aircraft, the suit was barred by the eighteen-year statute of repose in GARA. Alternatively, Cessna asserted that the suit was barred by Florida’s 12-year statute of repose, § 95.031 (2)(b), Florida Statutes (2003).

After completing discovery on its GARA defense, Cessna moved for summary judgment. Cessna contended that appellant failed to establish any of GARA’s exceptions to the eighteen-year limitation period and, alternatively, that appellant’s action was barred by Florida’s twelve-year statute of repose. Two years later, after additional discovery, appellant filed her response in opposition to Cessna’s motion for summary judgment. She alleged that despite the eighteen-year time-bar under GARA, her suit should be allowed to proceed because it fell within GARA’s limited “fraud” exception.

The trial court conducted a hearing on Cessna’s motion for summary judgment and found that on the face of the pleadings, GARA barred appellant’s action. The court noted that appellant’s “fraud” exception claim was based upon GARA, section 2(b)(1), which provides that the statute of repose does not apply

if the claimant pleads with specificity the facts necessary to prove, and proves, that the manufacturer with respect to a type certificate or airworthiness certificate for, or obligations with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or other part of an aircraft knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration, required information that is material and relevant to the performance or the maintenance or operation of such aircraft, or the component, system, su-bassembly, or other part, that is causally related to the harm which the claimant allegedly suffered.

The court determined, in short, that appellant had to show: (1) that the manufacturer knowingly misrepresented, concealed or withheld material and relevant information, (2) that the manufacturer was required to give such information to the Federal Aviation Administration (FAA), and (3) that the information was causally related to the harm suffered.

To support her fraud exception to the statute of repose, appellant alleged that Cessna concealed or withheld from the FAA the fact that the Model 414 aircraft contained the passenger seat assembly (with seat rail and locking mechanism) that was the subject of an FAA airworthiness directive (AD). The trial court found, however, that appellant failed to plead facts with specificity and that the facts contained in the record did not prove or infer that Cessna knowingly misrepresented, concealed or withheld, required information from the FAA concerning the Cessna 414 aircraft. Summarizing the relevant record evidence, the court stated:

The record reflects that the airworthiness directive addressed Cessna single and twin engine airplanes requiring the inspection, maintenance and possible replacement of parts of seat rails and seat assemblies due to reports of cracking and wear in the seat rails which could prevent possible engagement of the seat locking pins. The purpose was to preclude seat slippage and possible loss of the airplane. The directive was due to accidents or incidents in which slippage of the pilot seat was considered contributory to accidents or incidents. The airworthiness directive in question provided certain maintenance and inspection requirements to assure proper engagement of the seat locking mechanism and to preclude inadvertent seat slippage on each pilot and co-pilot seat and all associated seat rails.
The explicit designation of the pilot and co-pilot seats as opposed to all seats makes it clear that the airworthiness directive refers exclusively to the pilot and co-pilot seats. Mr. Nowicki was seated in a passenger seat. It was not necessary for Cessna to notify the FAA concerning passenger seats. In addition, the pilot and co-pilot seats in the aircraft in which he was a passenger were not subject to this airworthiness directive because they were a different seat design. There are no other airworthiness directives that are pertinent.
The record evidence further shows: The FAA’s final rule action leading up to the amendment of the Federal Aviation Regulations in this regard calls for inspections of certain seat rails and seat assemblies to prevent accidents or incidents in which slippage of the pilot seat was considered contributory. In the record are numerous reports relevant to the airworthiness directive describing incidents of seat slip, disengagement, derailment, moving, et cetera. These indicate instances where the pilot seats would slip, for example during takeoff causing a loss of control and other times reports of pins not entering into the rails far enough on co-pilot seats or pilot seats. For example, it was reported between 1970 and 1979 that Cessna aircraft were involved in twenty accidents in which slippage of the pilot seat during takeoff or landing was determined to have been a causal element of an incident or accident. A Cessna service bulletin on this matter titled “Pilot Seat Secondary Stop Installation” was circulated to provide for the installation of a secondary seat stop on the pilot seat.

Essentially, the trial court found that appellant’s sole reliance on the FAA airworthiness directive (AD) to support her GARA fraud exception was unavailing because the AD addressed the “seat slippage” concern only as it presented an unsafe condition in crew seats — not in passenger seats. In its order granting summary judgment, the court highlighted the deposition testimony of the plaintiffs expert, William H. Muzzy III, that he was unaware of any regulation or other mandate which required Cessna to provide the FAA -with information concerning the Model 414’s passenger seat system. Accordingly, the trial court found that appellant failed to demonstrate the existence of a genuine issue of material fact in support of her GARA “fraud” exception claim. The court further held that because GARA’s eighteen-year statute of repose barred appellant’s claim, it did not need to decide whether Florida’s shorter, twelve-year statute of repose also barred her action.

On appeal, appellant first argues that the trial court used the wrong standard in granting Cessna’s motion for summary judgment. Appellant contends that Cessna bore the burden of conclusively proving that, as a matter of law, the knowing misrepresentation, concealment, or withholding of information exception to GARA’s statute of repose did not apply. The trial court, appellant argues, improperly placed the burden of proving the applicability of the GARA fraud exception on her, instead of Cessna; because Cessna never met its initial burden of proof, summary judgment was improper.

Florida Rule of Civil Procedure 1.510 places the burden of proof at summary judgment on the movant, regardless of who has the burden at trial. See Kobel v. Schlosser, 614 So.2d 6, 7 (Fla. 4th DCA 1993). Appellant argues that because this was Cessna’s motion for summary judgment, it bore the burden of conclusively proving a negative, i.e., that there was no genuine issue of material fact and it was entitled to judgment as a matter of law. Cessna counters that because appellant’s claims were presumptively time-barred under GARA, it was incumbent upon appellant to show why her claims fit into GARA’s limited exceptions. Citing Landers v. Milton, 370 So.2d 368 (Fla.1979), Cessna argues that as the moving party, it met its initial burden by demonstrating on the face of the pleadings that appellant’s cause of action was barred by GARA’s statute of repose, and therefore the trial court properly shifted the burden of proof to appellant.

In Landers, the supreme court held that where a party moves for summary judgment based upon the statute of limitations, the party must sustain its initial burden by demonstrating that, on the face of the pleadings, the cause of action is time-barred. 370 So.2d at 370. After the moving party demonstrates that defendant cannot prevail because the suit was barred by the statute of limitations, it becomes “incumbent upon respondent to come forward with competent evidence revealing a genuine issue of fact.” Id. The first district applied this same order-of-proof principle in Cassoutt v. Cessna Aircraft Co., 660 So.2d 277, 281 (Fla. 1st DCA 1995). Quoting Landers, the court stated that “the party seeking to escape the statute of limitations must bear the burden of proving circumstances that would toll the statute.” Id. at 280.

Appellant, however, distinguishes these cases, pointing out that, unlike here, the plaintiff in Landers had not raised an exception to the statute of limitations as an avoidance or defense prior to summary judgment. Thus, in Landers, the plaintiff had not raised an issue the moving party had to conclusively rebut in order to establish his right to summary judgment. In contrast, appellant here raised such a defense to the GARA statute of repose; Cessna could not establish the claim was time-barred, for summary judgment purposes, until it established the GARA exception was inapplicable. Although the record indicates that, as a procedural matter, the trial court improperly placed the burden on appellant, Cessna nonetheless established for summary judgment purposes that the GARA fraud exception was inapplicable.

Appellant next argues that Cessna’s intentional misrepresentations, concealment, or withholding of material information from the FAA created a genuine issue of material fact which the trial court failed to consider, despite the fact that her complaint stated with sufficient specificity the elements of the GARA fraud exception. Appellant contends that the record reflects that Cessna’s actions fit within the GARA fraud exception because it knowingly misrepresented, concealed, or withheld required information from the FAA concerning the seat attachment system used for the Model 414 aircraft’s passenger seats.

In particular, appellant argues that Cessna had an affirmative duty to report to the FAA that the design of the Model 414’s seat attachment system created airworthiness problems for three reasons: (1) Cessna manufactured the Model 414 under a Delegation Option Authorization (DOA) which was approved by the FAA and imposed a duty upon Cessna to report matters impacting the airplane’s continuing airworthiness regarding the plane’s parts or systems; (2) based upon the FAA’s 1987 AD, which identified an unsafe condition caused by the seat attachment system, Cessna had a duty to inform the FAA about its aircraft’s similar designs for passenger seats, and (3) Cessna was obligated to respond to FAA inquiries and correct information as a result of an incident involving a failed passenger seat on Cessna’s Model 340 aircraft.

Cessna responds that appellant failed to point to a single example of “required information” that it misrepresented, concealed, or withheld to the FAA. The term “required information,” Cessna argues, means information that it had an affirmative obligation to report to the FAA, based on a statute, regulation, or FAA inquiry. See Cartman v. Textron Lycoming Reciprocating Engine Div., No. 94-CV-72582-DT, 1996 WL 316575, at *3 (E.D.Mich. Feb.27, 1996). According to Cessna, neither the DOA nor the AD required Cessna to provide the FAA with information concerning its Model 414 passenger seat restraint system. Further, appellant failed to cite any statute or regulation to support her position that Cessna violated a reporting requirement. Cessna also argues that, even if appellant could have demonstrated that Cessna withheld required information, it would still have been entitled to summary judgment because appellant failed to prove that the harm to Nowicki was causally related to the seat-slippage issued addressed by the Pilot’s Seat AD. To fall within GARA’s limited “fraud” exception, appellant must also establish that the harm suffered was causally related to such required information. See GARA, § 2(b)(1); Robinson v. Hartzell Propeller Inc., 326 F.Supp.2d 631, 647 (E.D.Penn.2004).

Based upon our review of the record, we conclude that Cessna met its burden to show that no genuine issue of material fact existed on whether it knowingly misrepresented, concealed, or withheld required information from the FAA concerning Cessna’s 414 aircraft’s passenger seats. Accordingly, we affirm the trial court’s order granting Cessna’s motion for summary judgment.

Affirmed.

GERBER, J., and PEGG, ROBERT L., Associate Judge, concur.


text:
    Naji HADDAD, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1896.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2011.
    Robert A. Harper, Jr., and Robert A. Harper, III, Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3rd DCA 2011).

PADOVANO,. ROBERTS, and MARSTILLER, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Jeffrey Owen MEAUX v. WENDY’S INTERNATIONAL, INC., F.J.B. Construction, Inc., Ace Insurance Company, and XYZ Insurance Company.
    No. 2010-C-2613.
    Supreme Court of Louisiana.
    May 13, 2011.
    Opinion Granting Rehearing July 1, 2011.
    Inabnet & Jones, LLC Counselors at Law, Scott G. Jones, Mandeville, Plauche Maselli Parkerson, LLP, Homer Edward Barousse, III, Joseph Maselli, Jr., New Orleans, for Applicant.
    Gregory William Roniger, Metairie, Johnson, Stiltner & Rahman, Patricia Jackson Delpit, Baton Rouge, The Law Offices of Sheryl Story, Sheryl D. Story, Metairie, The Sweeney Law Firm, LLC, Neil D. Sweeney, Baton Rouge, for Respondent.
   PER CURIAM.

17 After careful consideration of the record, we find genuine issues of material fact exist. Accordingly, we remand the matter to the trial court for further proceedings.

REMANDED TO TRIAL COURT.

ON REHEARING

PER CURIAM.

| plaintiff, an employee of a subcontractor performing repairs on Wendy’s restaurant, was injured when the top portion of the roof and the overhanging fascia collapsed and fell on him during the demolition process. Subsequently, plaintiff filed the instant petition for damages against various defendants, including Wendy’s International, Inc. (“Wendy’s”). Essentially, plaintiff alleged the restaurant building, as originally constructed, contained a design defect.

Wendy’s moved for summary judgment, which the district court granted. On appeal, the court of appeal reversed the judgment of the district court. In a lengthy opinion, the court of appeal concluded summary judgment was inappropriate, because there were genuine issues of material fact with respect to plaintiffs general negligence and strict liability claims.

Upon Wendy’s application, we granted certiorari to review the correctness of that decision. After conducting oral argument and reviewing the record, we rendered the following judgment on May IB, 2011:

After careful consideration of the record, we find genuine issues of material fact exist. Accordingly, we remand the matter to the trial court for further proceedings.

| ¡Wendy’s now seeks rehearing of this judgment. Although Wendy’s does not seek review of the portion of our judgment remanding the case, it asks us to overrule the court of appeal’s opinion on the ground it contains incorrect analysis inconsistent with the prevailing jurisprudence.

In granting certiorari in this matter, we recognized the case potentially presents some important legal issues. However, after a careful review of the record, we concluded the case, as currently postured, is not well suited for resolution of these issues, due to the existence of fundamental factual disputes which must be resolved by the trier of fact.

The effect of our May 13, 2011 judgment is to hold that the court of appeal reached the correct result in reversing the district court’s grant of summary judgment. It was not our intent to pass on any other issue, or to endorse the court of appeal’s reasoning. To the contrary, once the court of appeal made the finding that genuine issues of material fact existed, any additional statements in its opinion discussing whether plaintiff could prevail under certain theories of law were not essential to the judgment. The appellate court’s comments on these issues are purely obiter dicta, and are not binding on the district court. See Boyd v. Wackenhut Corp., 08-1388 (La.10/24/08), 993 So.2d 216.

Accordingly, rehearing is granted for the sole purpose of clarifying our May 13, 2011 judgment to provide that any comments by the court of appeal concerning potential theories of liability are not binding on the district court on remand. In all other respects, our judgment of May 13, 2011 is reaffirmed.


text:
    In re Charles T. PHILLIPS, II.
    No. 2011-B-1811.
    Supreme Court of Louisiana.
    Aug. 19, 2011.
   ORDER

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

IT IS ORDERED that respondent, Charles T. Phillips, II, Louisiana Bar Roll number 26699, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

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

FOR THE COURT:

/s/ Greg Gerard Guidry

/s/ Justice, Supreme Court of Louisiana


text:
    In re Carl V. WILLIAMS.
    No. 2011-B-1727.
    Supreme Court of Louisiana.
    Aug. 31, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| iThis disciplinary matter arises from a petition to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Carl V. Williams, based upon allegations that respondent engaged in the unauthorized practice of law following his suspension in In re: Williams, 10-2759 (La.5/10/11), 62 So.3d 751 {‘Williams I”).

UNDERLYING FACTS AND PROCEDURAL HISTORY

After considering the record in Williams I, we determined that respondent failed to properly handle his client’s funds and failed to reduce a contingency fee agreement to writing. On May 10, 2011, respondent was suspended from the practice of law for a period of one year, with all but four months deferred, subject to his successful completion of a two-year period of supervised probation with conditions. We cautioned respondent that if he failed to comply with the conditions of probation, or committed any misconduct during the probationary period, the deferred portion of the suspension may be made executory, or additional discipline imposed, as appropriate. Respondent did not seek rehearing |2of the court’s judgment, and accordingly, his suspension became final and effective on May 24, 2011.

Thereafter, the ODC received a letter from Judge Veronica E. Henry of the First City Court for the City of New Orleans, who reported that respondent had appeared in her court on June 3, 2011 to argue a motion for new trial on behalf of a client. Judge Henry further advised that at no time did respondent inform her he had been suspended from the practice of law.

Following the filing of Judge Henry’s complaint, the ODC filed the instant “Petition to Make Deferred Suspension Execu-tory & Petition for Interim Suspension for Threat of Harm.” In this petition, the ODC argues respondent has violated Rule 5.5 of the Rules of Professional Conduct by practicing law while suspended. Therefore, on the ground that respondent poses a threat of harm to his clients, the ODC requests this court revoke the deferred portion of respondent’s suspension, making the full one-year suspension executory. The ODC also seeks respondent’s transfer to interim suspension for threat of harm, pursuant to Supreme Court Rule XIX, § 19.2. In his response to the ODC’s filing, respondent asserted that his appearance in Judge Henry’s court on June 3, 2011 was the result of a misunderstanding on his part as to when his suspension in Williams I was actually to commence.

DISCUSSION

In the instant case, it is undisputed that respondent was suspended from the practice of law for one year, with all but four months deferred, effective May 24, 2011. It is likewise undisputed that on June 3, 2011, ten days after the effective date of the suspension, respondent appeared in open court to argue a contested |smotion on behalf of a client. Although such conduct clearly constitutes the unauthorized practice of law, under the circumstances, we find that respondent acted in the mistaken but good faith belief that his suspension had not yet taken effect. For this reason, we will not revoke respondent’s probation and impose the remaining eight months of his suspension in Williams I. Rather, we will sanction respondent for his unauthorized practice of law by imposing ninety days of the previously deferred Williams I suspension.

DECREE

For the reasons assigned, respondent, Carl V. Williams, Louisiana Bar Roll number 18507, shall be suspended from the practice of law for ninety days, which suspension shall run consecutively to the suspension imposed in In re: Williams, 10-2759 (La.5/10/11), 62 So.3d 751. 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.

      . Specifically, with regard to his client's funds, respondent deposited $459 paid to him for costs into his operating account rather than a client trust account; converted those funds to his own use by allowing the balance of the operating account to drop below $459; and failed to deposit a $1,500 advance fee into his client trust account.

      . Respondent filed the motion for new trial on May 16, 2011. On that date, respondent was still permitted to practice law because the court's judgment in Williams I was not yet final.


author: FOR THE COURT.

text:
    In re CONFIDENTIAL PARTY.
    No. 2011-B-1327.
    Supreme Court of Louisiana.
    Aug. 31, 2011.
   ORDER

FOR THE COURT.

I,Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for the institution of formal charges.


text:
    In re Michael J. HAND.
    No. 2011-OB-1832.
    Supreme Court of Louisiana.
    Sept. 1, 2011.
   ORDER

FOR THE COURT.

| iConsidering the Petition for Transfer to Disability Inactive Status filed by respondent, Michael J. Hand, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Michael J. Hand, Louisiana Bar Roll number 16958, be and he hereby is transferred to interim disability inactive status pending a hearing to determine the validity of his claim of inability to assist in his defense due to mental or physical incapacity, pursuant to Supreme Court Rule XIX, § 22(C). All disciplinary proceedings shall be stayed pending this determination.

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


text:
    In re Leon A. MARYLAND.
    No. 2011-OB-1037.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   ORDER

| iConsidering the application of petitioner, Leon A. Maryland, for admission to the practice of law,

IT IS HEREBY ORDERED that the application be denied. The application makes no showing of facts relating to petitioner’s character and fitness to practice law that have changed since this court denied his prior application in In re: Maryland, 09-2470 (La.4/5/10), 32 So.3d 219. Once an applicant is denied admission to the bar, this court will not consider a subsequent application for admission absent a showing of changed circumstances. See In re: Jordan, 00-3006 (La.12/15/00), 775 So.2d 1065.

FOR THE COURT:

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


text:
    In re Paul W. BAIRNSFATHER.
    No. 2011-B-1453.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe 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 refund an unearned fee. This misconduct occurred in the same time frame as the misconduct forming the basis of respondent’s earlier disciplinary matter. Prior to the filing of new 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 Paul W. Bairnsfather, Louisiana Bar Roll number 20092, be adjudged guilty of additional violations which warrant discipline and which may be considered in the event he applies for readmission from his disbarment in In re: Bairnsfather, 10-0457 (La.4/5/10), 32 So.3d 222, after becoming eligible to do so.

IT IS FURTHER ORDERED that respondent shall make restitution to Juanita Davis of any unearned fees.

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 Sidney W. HALL.
    No. 2011-B-1025.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Sidney W. Hall, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In September 2007, Dameon Johnice hired respondent to represent him in a criminal matter in federal court. Mr. Joh-nice subsequently pleaded guilty pursuant to a plea agreement, and on July 1, 2008, he was sentenced. Thereafter, Mr. Joh-nice instructed respondent to file an appeal. On July 7, 2008, respondent filed a notice of appeal in the federal district court. The record was lodged with the appellate court on July 24, 2008, but on August 21, 2008, Mr. Johnice’s appeal was dismissed because respondent failed to timely pay the docketing fee, order a transcript, and make financial arrangements with the court reporter.

After his appeal was dismissed, Mr. Joh-nice filed in the federal district court a pro se motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. The motion was referred to a federal magistrate judge for an evidentiary hearing. Following the hearing, the magistrate judge concluded that respondent abandoned Mr. Johnice’s appeal without his knowledge or consent and prejudiced him by causing his appeal to be dismissed.

|2On February 23, 2010, the federal district judge approved and adopted the magistrate judge’s findings. Based on those findings, the district judge vacated and reinstated the judgment of Mr. Johnice’s conviction, thereby affording him an opportunity to file a new notice of appeal. Thereafter, Mr. Johnice obtained new counsel, who proceeded with the appeal. However, his new attorney eventually filed an Anders brief requesting that he be allowed to withdraw as Mr. Johnice’s attorney because the appeal lacked arguable issues.

DISCIPLINARY PROCEEDINGS

In April 2010, the ODC filed formal charges against respondent, alleging that by his conduct as set forth above he violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.2(a) (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent filed an answer to the formal charges, admitting he took no steps to perfect Mr. Johnice’s appeal after filing the notice of appeal, but denying that he engaged in any misconduct. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

In September 2007, Mr. Johnice retained respondent to represent him in a federal criminal case. Mr. Johnice entered into a plea agreement with the |3government and pleaded guilty. Pursuant to the plea agreement, Mr. Johnice waived all rights to appeal except under very specific circumstances: 1) if the judge issued a sentence greater than the statutory minimum; 2) if the judge issued a sentence that was an upward departure from the guidelines; or 3) if the judge went above the guideline range in his calculation of the sentence. Mr. Johnice was sentenced on July 1, 2008. Thereafter, he instructed respondent to file an appeal. Respondent filed a notice of appeal in federal district court on July 7, 2008, and the record was lodged with the appellate court on July 24, 2008. On August 21, 2008, Mr. Johnice’s appeal was dismissed for want of prosecution.

The testimony provided by several witnesses at the formal hearing in this matter made it clear that, based on Mr. Johnice’s waiver of his appellate rights in the plea agreement, the chances of him obtaining any relief on appeal were “slim to none.” Several witnesses also testified that respondent’s strategy was to pursue a Rule 35 reduction in sentence, which can only be brought by the government, rather than an appeal. Based on this testimony, the committee found respondent was pursuing a strategy to which Mr. Johnice had agreed. The committee concluded that the only issue in this matter was whether Mr. Johnice knew about and affirmatively agreed with the dismissal of his appeal.

After the appeal was dismissed, Mr. Johnice filed a § 2255 motion with the federal district court because respondent had allowed his appeal to be dismissed for want of prosecution. At the related evi-dentiary hearing, respondent testified that he abandoned Mr. Johnice’s appeal because he felt that 1) they had discussed pursuing the Rule 35 strategy over the appeal, and 2) the appeal would not be monetarily or legally worth pursuing. Respondent admitted, however, that he never wrote to Mr. Johnice about abandoning the appeal or withdrawing the |4appeal. Furthermore, they only discussed the appeal once or twice. At the formal hearing of this matter, respondent testified similarly and acknowledged that his failure to put his agreement with Mr. Johnice in writing was “stupid.” Respondent also indicated that Mr. Johnice was difficult to communicate with because, every time he would see Mr. Johnice, it was as if Mr. Johnice could not recollect what they had discussed in past visits.

Finally, the committee found that Mr. Johnice’s new attorney, who pursued the appeal after the district judge’s February 23, 2010 ruling, ultimately filed an Anders brief, in which hé stated that there were no non-frivolous reasons to appeal Mr. Johnice’s guilty plea.

Based on these facts, the committee determined respondent violated Rules 1.4 and 8.4(d) of the Rules of Professional Conduct. Specifically, the committee found respondent violated Rule 1.4 because he did not reasonably consult with Mr. Johnice relative to the “strategy” that he thought Mr. Johnice understood; he did not keep Mr. Johnice reasonably informed about the status of the appeal and the Rule 35 motion the government was considering bringing; and he failed to consult with Mr. Johnice about the fact that filing an An-ders brief was beyond his competency because he had only handled two criminal matters in federal court and had never filed an appeal relative to a federal criminal case. The committee also found respondent violated Rule 8.4(d) when he failed to adequately communicate with Mr. Johnice and failed to file a motion to withdraw the appeal. The committee did not make any determination whether respondent violated the other Rules of Professional Conduct as alleged in the formal charges.

After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined a suspension is warranted for respondent’s knowing misconduct. The committee also determined that Mr. Johnice was not harmed or prejudiced because of respondent’s failure to perfect his appeal.

| fin aggravation, the committee found prior disciplinary offenses. In mitigation, the committee found the absence of a dishonest or selfish motive, character or reputation (based on the testimony of several character witnesses), full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and inexperience in the practice of criminal law.

After reviewing this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for one year, with all but one day deferred, subject to one year of probation with the conditions that respondent remain complaint-free and complete twelve additional hours of continuing legal education in ethics and professionalism, with specific focus on law office management.

The ODC filed an objection to the hearing committee’s report and recommendation, suggesting that it would be inefficient to enforce an actual period of suspension of one day. Rather, the ODC asserted that the entire one-year suspension should be deferred, subject to a probationary period. In his brief to the disciplinary board, respondent objected only to the requirement that he remain complaint-free during the period of his probation, contending he has no control over whether complaints are filed with the ODC.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings are not manifestly erroneous, except in three instances. First, the board did not agree with the committee that the mitigating factor of inexperience in the practice of criminal law is present. Second, the board determined the record 1 (jdoes not support the committee’s finding that respondent failed to inform Mr. Joh-nice that preparing an Anders brief was beyond his competency because there is no evidence or testimony concerning this issue. Finally, the board determined the record does not support the committee’s finding that respondent failed to keep Mr. Johnice informed about the Rule 35 motion because respondent’s testimony and evidence contradict this finding.

The board agreed with the committee that respondent violated Rules 1.4 and 8.4(d) of the Rules of Professional Conduct. The board also determined the ODC did not establish by clear and convincing evidence that respondent violated the other Rules of Professional Conduct as alleged in the formal charges.

The board further determined respondent knowingly violated duties owed to Mr. Johnice and the legal system. He caused minimal injury to Mr. Johnice, who was able to file a new appeal. However, the injury to the legal system was more significant in that the federal court had to conduct a hearing on Mr. Johnice’s motion to vacate to address the issue of the abandonment of the appeal. The board also determined that Standard 4.42(a) of the ABA’s Standards for Imposing Lawyer Sanctions applies in this matter, indicating that suspension is an appropriate sanction.

In aggravation, the board found prior disciplinary offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 1975). In mitigation, the board found the absence of a dishonest or selfish motive, a cooperative attitude toward the proceedings, and character or reputation.

After considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice |7of law for one year, fully deferred, subject to one year of unsupervised probation and completion of the Louisiana State Bar Association’s Ethics School. The board further recommended that 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.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, the record supports the hearing committee’s factual findings, as modified by the disciplinary board. Essentially, respondent failed to properly communicate with Mr. Johnice regarding his appeal, which conduct was prejudicial to the administration of justice. Based on this misconduct, respondent violated Rules 1.4 and 8.4(d) of the Rules of Professional Conduct.

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

Respondent knowingly violated duties owed to his client. However, Mr. Joh-nice’s appeal rights were ultimately restored; thus, he suffered no actual harm. The record supports the aggravating and mitigating factors found by the board.

Under the circumstances, we agree that a fully deferred one-year suspension, subject to probation and Ethics School, as suggested by the disciplinary board, is an appropriate sanction for respondent’s misconduct. Accordingly, we will adopt the disciplinary board’s recommendation.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Sidney W. Hall, Louisiana Bar Roll number 6444, be and he hereby is suspended from the practice of law for one year. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of unsupervised probation with the condition that respondent attend the Louisiana State Bar Association’s Ethics School. The probationary period shall commence from the | fldate 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. 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.

      . A motion by the government under Rule 35 of the Federal Rules of Criminal Procedure seeks a reduction in an already-imposed sentence after a defendant has provided useful information in other cases.

      . In 2000, respondent participated in and successfully completed the Louisiana State Bar Association's Diversion Program after engaging in conduct constituting a conflict of interest. In 2005, respondent was admonished for notarizing an affidavit outside of the presence of the affiant and witnesses.

      . Standard 4.42(a) provides that suspension is generally appropriate when "a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client.”

      . The board determined respondent's misconduct was most similar to the misconduct in In re: Dean, 03-2478 (La. 1/21/04), 864 So.2d 152, wherein an attorney neglected legal mat-fers, failed to communicate with clients, failed to provide competent representation to a client, and failed to properly terminate a representation. For this misconduct, the court suspended the attorney from the practice of law for one year, fully deferred, subject to one year of supervised probation with conditions.

      . We agree with the ODC that a one day period of actual suspension is not practicable or efficient from the standpoint of the disciplinary process.