text:
    Dezman ZAMA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1324.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.

      Dan Hallenberg of the Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant, Dezman Zama, was convicted of aggravated assault with a deadly weapon. We reverse for a new trial because the trial court, in response to a question from the jury, gave an erroneous instruction by expanding on the fear element of assault.

Appellant was on trial for attempted second degree murder. His defense was that, after being forcibly escorted out of a nightclub by security personnel, he acci-dently shot his gun into the club, not realizing the safety was off. Appellant told police during an interview that he intended to fire at the ground, to scare off the security personnel who were harassing him. At trial, appellant testified that he did not know the safety was off, and that he never intended to fire the gun.

The victim, Adam Lowe, who was working security at the club that night, testified that he was about six to eight feet from appellant and was looking appellant in the eyes when the gun fired. The bullet came within inches of Lowe’s thigh. Lowe was unsure if the gun was pointed up or down when it fired although he believed appellant was shooting at him. Lowe feared the bullet would hit him or someone else. After the shot was fired, Lowe was not nervous or in fear and wanted to go outside (where appellant was).

Lowe was 6'2" and weighed 200 pounds. He carried an asp (a retractable baton), in a case attached to his belt on his right hip. Appellant weighed 150 pounds and was 5'5".

In instructing the jury, the trial court explained that aggravated assault was a lesser included offense. The court further instructed that, to prove the crime of assault, the State must prove the following elements beyond a reasonable doubt:

1. [Appellant] intentionally and unlawfully threatened, either by word or act, to do violence to Adam Lowe.
2. At the time [appellant] appeared to have the ability to carry out the threat.
S. The act of [appellant] created in the mind of Adam Lowe a well-founded fear that the violence was about to take place.

During deliberations, the jury submitted the following question to the court:

Is this correct?:
In the 3 elements of assault, item 3, the phrase “fear that the violence was about to take place” refers only to the violence to Adam Lowe (as designated in element 1) and not to any fear he may have had for the (potential) violence to others in the area.

Over appellant’s objection, the court answered the jury’s question as follows:

If the circumstances are such as would ordinarily induce fear in the mind of a reasonable person, then the alleged victim may properly be found to have been in fear.

Appellant filed a timely motion for new trial. He argued that the court committed fundamental error because the court’s answer improperly expanded the fear element to include an unnamed, unmentioned individual. The trial court denied the motion.

The standard of review for jury instructions is abuse of discretion; “however, discretion, as with any issue of law is strictly limited by case law.” Newman v. State, 976 So.2d 76, 78 (Fla. 4th DCA 2008).

Appellant argues that the trial court’s answer to the jury’s question improperly expanded the “fear” element of assault by allowing the jury to return a guilty verdict if the jury believed that Lowe had a well-founded fear that violence was imminent against another person besides Lowe. The State responds that this issue was not preserved because appellant did not raise this objection until his motion for new trial. Should this court find the issue preserved, the State contends that the judge’s instructions were a correct statement of the law, and thus, no reversible error occurred. Appellant replies that, even if not preserved, the error was fundamental and therefore can be raised for the first time on appeal.

“Issues pertaining to jury instructions are not preserved for appellate review unless a specific objection has been voiced at trial.” Coday v. State, 946 So.2d 988, 995 (Fla.2006) (quoting Overton v. State, 801 So.2d 877, 901 (Fla.2001)).

We find the issue was preserved. Defense counsel argued that the court should answer the jury’s question as follows:

I would, probably say, as I understand the instruction [sic], that the threat has to apply to the individual who’s listed as the victim, and I think that that would apply to Adam Lowe because he’s named in the Information that way and it’s named in the instructions that way.
So, I would think that I would ask that the Court say that it should only refer to the violence to Adam Lowe and not to any other individuals because he’s the individual named as the listed victim in the Information, or the charging document, and he’s also the individual listed in the jury instructions. That would be the defense’s posture, Your Honor.

The court rejected appellant’s requested response and instead gave the answer to which appellant objected. Therefore, this issue was contemporaneously raised at trial, contrary to the State’s argument. Moreover, it is undisputed that appellant raised the issue in his motion for new trial.

Turning to the merits, an “assault” is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2007). Thus, “an essential element of any assault is the victim’s well-founded fear of imminent violence.” Johnson v. State, 888 So.2d 691, 693 (Fla. 4th DCA 2004) (quoting Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997)); see also State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1992).

The jury asked the court whether the fear element included only Lowe’s fear of violence against himself and not Lowe’s fear of violence against others in the club. Based on the plain meaning of the statute, the correct answer to the jury’s question was ‘Yes.” However, the trial court did not directly answer the question, stating: “If the circumstances are such as would ordinarily induce fear in the mind of a reasonable person, then the alleged victim may properly be found to have been in fear.” This answer, while a correct statement of the law, suggested to the jury that the fear element could be satisfied based on Lowe’s fear of harm to others in the club. Such a scenario does not constitute the crime of aggravated assault. In light of Lowe’s testimony that he feared the bullet could have hit someone or hit him, and that, after the shot was fired, he was not nervous or in fear and wanted to go outside (where appellant was), we cannot find that the trial court’s misleading response to the jury’s question was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Appellant also claims he was denied a fair trial because the prosecutor presented evidence that he possessed a bullet-proof vest and then argued in closing that the vest was not relevant. The fact that he possessed a bullet-proof vest, appellant argues, unfairly prejudiced him as it served no purpose but to inflame the jury and suggest he was of bad character and had a propensity for gun violence. We agree, and briefly address this issue as it could recur on retrial.

The bullet-proof vest came up several times during the trial. In opening statements, the prosecutor told the jury that police found the gun in appellant’s car and that police “also [found] the bullet proof vest that he had in the trunk.” During Detective Schroeder’s direct examination, the prosecutor elicited testimony that he found a bullet-proof vest in the trunk of appellant’s car. Through the detective, the prosecutor introduced the bullet-proof vest into evidence. Also during Schroeder’s direct examination, the State played the recording of Schroeder’s interrogation of appellant, during which Schroeder asked appellant why he had a bullet-proof vest. During the State’s direct examination of witness Alex Abreu, the prosecutor elicited that, when Abreu was talking to appellant in the club parking lot, Abreu saw that appellant had a bullet-proof vest in his car.

Yet, the prosecutor stated during closing argument that the bullet-proof vest was not relevant to appellant’s case, and that it was introduced only to show that it was found in appellant’s car:

So, you have these things that you’ll be able to think about and look at, and you have the pictures and you have this bulletproof vest, which is really no consequence of anybody [sic] other than he had it in the car and that it was a part of the evidence so we introduced it, and the Judge will send this back to you.

(Emphasis added). Defense counsel did not move for a mistrial, but argued during his closing that the prosecutor admitted the bullet-proof vest into evidence in order to convince the jury that appellant was a “reckless ... troublemaker” who “shoots at things.”

Although appellant never raised an objection to any of the evidence concerning the bullet-proof vest at trial, we agree it was error to admit such evidence, which was unconnected to the crime. See O’Connor v. State, 835 So.2d 1226, 1281 (Fla. 4th DCA 2003) (reversing defendant’s convictions for first-degree murder and armed robbery because of the admission of evidence found in his house, including a shotgun and bullet-proof vest, which were unconnected to the crime).

Appellant also argues that the trial court erred by overruling his objection to the detective’s non-expert opinion that, based upon his observations of the scene and the condition of the recovered projectile, the projectile did not ricochet off the floor. We find no error with the trial court’s ruling, and affirm that issue without further discussion.

Appellant’s remaining issues deal with matters that occurred during jury selection. Neither merits discussion, as they are unlikely to occur on retrial.

Reversed and Remanded For New Trial.

CIKLIN and LEVINE, JJ., concur.

      . See, e.g., L.R.W. v. State, 848 So.2d 1263, 1266 (Fla. 5th DCA 2003) ("If the circumstances are such as would ordinarily induce fear in the mind of a reasonable person, then the victim may properly be found to have been in fear.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Oscar PARKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3484.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.

      Oscar Parks, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Oscar Parks seeks review of an order that summarily denied his multi-issue Florida Rule of Criminal Procedure 3.850 motion. We reverse and remand for further review of two related points and affirm the denial of the remaining claims.

Parks was charged with burglary, dealing in stolen property, and false verification of ownership. The jury found him not guilty of the burglary, but guilty of the other offenses. To convict Parks of dealing in stolen property one of the elements that the State had to prove was that Parks knew or should have known that the items were stolen. See § 812.019, Fla. Stat. (2003). Section 812.022(2), Florida Statutes (2003), provides that “[p]roof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” Ward v. State, 40 So.3d 854, 856 (Fla. 4th DCA 2010).

With that background we consider Parks’s claims. Parks alleges that counsel misadvised him regarding his right to testify. Parks claims that counsel told him that if he testified, he would lose the “sandwich,” and the State would be allowed to reveal to the jury the exact nature of his prior convictions. Parks also claims that counsel failed to advise him about the “presumption” of section 812.022(2), and therefore his testimony explaining his possession of the stolen items was even more critical.

Parks alleges that he would have testified about how he received the property. Specifically, he was awakened by his house guest Lowry Kerry, and was given several pieces of jewelry. Kerry was living with Parks following Kerry’s breakup with his fiancée. Kerry intimated that he had purchased the items before his breakup, and gave them to Parks as contribution to the living expenses given that he (Kerry) was unemployed.

These points warrant further review. Oisorio v. State, 676 So.2d 1363, 1364-65 (Fla.1996); Ferrer v. State, 2 So.3d 1111, 1112 (Fla. 4th DCA 2009). Regarding the substance of Parks’s testimony, it is significant that no other evidence was offered to rebut the statutory presumption and that the jury acquitted Parks of the burglary.

We reverse for the trial court to conduct an evidentiary hearing on the issues surrounding counsel’s “misadvice” regarding Parks’s right to testify coupled with the claim that counsel failed to advise of the statutory presumption. We affirm as to the other grounds raised.

GROSS, C.J., POLEN and GERBER, JJ., concur.


author: CIKLIN, J.

text:
    ELLIE’S 50’S DINER, INC., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 4D09-1768.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Peter G. Walsh of Stabinski & Funt, P.A., Miami, for appellant.
    Kara Berard Roekenbach and Kristi L. Bergemann of Methe & Roekenbach, P.A., West Palm Beach, for appellee.
   CIKLIN, J.

Ellie’s 50’s Diner, Inc. (“Ellie’s”) appeals the denial of a motion for prejudgment interest in its action against Citizens Property Insurance Corporation (“Citizens”). We affirm because the insurance policy provisions allotted Citizens thirty days within which to pay any appraisal award and Citizens made payment within the prescribed time period.

Ellie’s was insured by Citizens when its property was damaged by Hurricane Wilma in October 2005. Ellie’s submitted a claim and Citizens made payment to Ellie’s but for less than the amount sought by Ellie’s. In November 2006, Elbe’s filed a civil action against Citizens claiming that the amount paid by Citizens was insufficient and a breach of the policy. Citizens moved to compel an appraisal pursuant to the policy terms and the trial court granted this motion. On June 13, 2008, the appraisers entered an appraisal award which resulted in a further payment to Ellie’s. On July 10, 2008, Citizens paid Ellie’s the amount provided under the appraisal award.

Thereafter, Ellie’s filed a motion for prejudgment interest, claiming that it was entitled to prejudgment interest calculated from the date of loss. In response, Citizens argued that Ellie’s was not entitled to prejudgment interest because the insurance policy provided that Citizens had thirty days after the entry of an appraisal award within which to pay Ellie’s. Citizens relied on a “Loss Payment” provision in the policy that read, “Loss will be payable ... [tjhirty (30) days after we receive your proof of loss and ... [t]here is a filing of an appraisal award....” The trial court, noting the policy language, denied the motion for prejudgment interest.

On appeal, Elite’s argues that the trial court erred in not awarding prejudgment interest from the date its property was damaged. The loss payment provision of the subject policy, however, provided that Citizens was required to make payment within thirty days after the filing of an appraisal award. “It is the terms of a contract for insurance which determine the date from which the coverage payment is due, as well as when interest is due on the amounts payable.” See Citizens Prop. Ins. Corp. v. Mallett, 7 So.3d 552, 556 (Fla. 1st DCA 2009) (citing Lumbermens Mut. Cas. Co. v. Percefull, 653 So.2d 389 (Fla.1995)).

Thus, because Citizens paid the claim within the time allotted by the policy, Ellie’s was not entitled to receive prejudgment interest. See Sunshine State Ins. Co. v. Davide, 15 So.3d 749, 750 (Fla. 3d DCA 2009); Mallett, 7 So.3d at 556; Allstate Ins. Co. v. Blanco, 791 So.2d 515, 516 (Fla. 3d DCA 2001).

Affirmed.

POLEN and LEVINE, JJ., concur.


author: STEVENSON, J.

text:
    Merle A. WOOD, III, Appellant, v. Meyel HAACK, Jr., Appellee.
    No. 4D08-4548.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.

      Mike Pfundstein of Mike Pfundstein, P.A., Fort Lauderdale, for appellant.
    Kelley B. Stewart and Walter G. Campbell, Jr., of Krupnick, Campbell, Malone, Buser, Slama, Hancock, Liberman & McKee, P.A., Fort Lauderdale, for appel-lee.
   STEVENSON, J.

Merle Wood, one of several defendants in a suit filed by Meyel Haack, Jr., challenges an order awarding him 57.105(1) attorney’s fees, arguing that the trial court erred in limiting the fees to those incurred from the date of service of the third amended complaint, the pleading that was pending at the time the 57.105 motion for fees was served and filed. Haack has cross-appealed, arguing that the trial court erroneously included in the attorney’s fee award time incurred in litigating the amount of fees to be awarded. We find that both parties’ arguments have merit and reverse the order appealed.

In October of 2003, Haack filed suit against Merle Wood & Associates, Inc. (MWA), Merle Wood, and Clifford Allenby. The complaint contained a single count for assault and battery. It alleged that Wood was the president of MWA; that Wood became involved in a business dispute with Haack that “resulted in specific threats of physical violence being made by Defendant, Merle Wood, to Plaintiff’; that Wood instructed employees Brad Wood and Al-lenby to intentionally strike the plaintiff; and that, on February 25, 2002, Brad Wood and Allenby carried out those instructions, intentionally striking the plaintiff and causing serious bodily injury. By March of 2006, Haack had filed a third amended complaint. Count I asserted a claim for battery against Allenby. Count II asserted an assault claim against Merle Wood, alleging Wood “by his word, appearance and actions offered corporeal injury to Plaintiff,” placing plaintiff in fear of immediate harm. Count III sought to hold MWA vicariously liable for Allenby’s striking of Haack. Counts IV and V asserted negligent hiring and retention claims against MWA.

Wood filed a motion for summary judgment on the assault claim, asserting Haack’s own deposition testimony established that Wood had not threatened or assaulted Haack. Then, on January 30, 2007, Wood served a motion for sanctions pursuant to section 57.105, Florida Statutes, asserting that, from the time of the filing of the original complaint, Haack knew he could not state a claim against Wood as evidenced by Haack’s 2002 deposition, wherein Haack stated under oath that Wood had never put his hands on him, did not threaten him with physical harm, and did not yell at, or use abusive language with, Haack. More than a month later, Haack voluntarily dismissed the assault claim. The trial court ultimately awarded 57.105 fees to Wood, but limited the award to those fees incurred from the date of service of the third amended complaint, explaining that it was “of the view ... that since the first demand under 57.105(4) was directed to the third amended complaint then that is the trigger date for fees.” The trial court included in the award fees incurred litigating the amount of fees to be awarded, reasoning that the fees were awarded as a sanction.

The trial court’s limitation of the fee award to those incurred from the date of service of the third amended complaint was in error. The motion for 57.105 fees plainly asserted that the suit had been without merit since its inception. Further, section 57.105(l)(a) provides that fees are to be awarded “on any claim ... at any time ... in which the court finds that the losing party ... knew or should have known that a claim ... when initially presented to the court or at any time before trial ... [w]as not supported by the material facts necessary to establish the claim.” Consistent with this language, in Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615 (Fla. 4th DCA 2006), this court held that it is not the bringing of the motion for 57.105 fees that starts the clock running for recoverable fees. Rather, once the twenty-one day safe harbor expires, “[t]he trial court is free to measure the attorney’s fees from the time it was known or should have been known that the claim had no basis in fact or law.” Id. at 620. Here, the record demonstrates that that time pre-dates the filing of the initial complaint.

As for the cross-appeal, in State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla.1993), our supreme court held that a section 627.428 fee award did not permit the award of those fees incurred for litigating the amount of fees to be awarded as “[s]uch work inures solely to the attorney’s benefit and cannot be considered services rendered in procuring full payment of the judgment.” Here, the fees were clearly awarded pursuant to section 57.105, and Palma and its rationale applies to 57.105 fee awards as well. See Yakavonis, 934 So.2d at 620; Eisman v. Ross, 664 So.2d 1128 (Fla. 3d DCA 1995).

Accordingly, the trial court’s 57.105 attorney’s fee award is reversed and the matter is remanded for further proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and GERBER, JJ., concur.


text:
    Saphyre REDFORD, Appellant, v. NOBLE VENTURES CORP., et al., Appellees.
    No. 4D10-5040.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Saphyre Redford, New York, NY, pro se.
    No brief filed for appellees.
   PER CURIAM.

Having carefully reviewed appellant’s initial brief, and finding no preliminary basis to reverse the order of the trial court, dismissing appellant’s amended complaint with prejudice as to all parties defendant, we hereby summarily affirm pursuant to Florida Rule of Appellate Procedure 9.315(a).

Affirmed.

POLEN, DAMOORGIAN and GERBER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Darrin WILLIAMS, Appellee.
    No. 4D10-237.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s mitigation of appellant’s sentence. Pursuant to Florida Rule of Criminal Procedure 3.800(c), the motion to mitigate was filed within sixty days of imposition, but the hearing on the motion was held more than sixty days from imposition of the original sentence. Recently, in Schlabach v. State, 37 So.3d 230 (Fla.2010), our supreme court construed the time periods of the rule and determined that as long as the defendant files the motion to reduce or modify sentence within the sixty-day time period, the trial court does not lose jurisdiction solely because no hearing was scheduled and no order was entered within the sixty-day time period. In doing so the court quashed our court’s decision in State v. Schlabach, 1 So.3d 1091 (Fla. 4th DCA 2009), upon which the state has relied in its brief.

Affirmed.

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    Cedrick E. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5134.
    District Court of Appeal of Florida, Fourth District.
    March 2, 2011.
    Rehearing Denied March 22, 2011.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals his conviction of burglary of a dwelling. Testimony during trial revealed that appellant’s fingerprints were found on the sliding glass door to the victim’s house. His fingerprints were also found on the vehicle that the victim saw pulling out from her driveway as she returned home. Additionally, appellant admitted to officers that he had the key to the vehicle and possession of the vehicle at the date and time the burglary occurred. During closing argument, the prosecutor referred to the testimony of the deputy who lifted the fingerprints and stated, “[H]e is my expert, and he is very credible.” The defense objected due to improper bolstering, and the trial court overruled the objection. We find this was error, but the error was harmless as there was no reasonable possibility, under the specific facts of this case, that the comment influenced the verdict. See King v. State, 623 So.2d 486, 488 (Fla.1993); Buckner v. State, 689 So.2d 1202 (Fla. 3d DCA 1997) (finding error harmless where the state told the jury it would find the police officer “very credible” and in closing stated that the officer testified “truthfully” and put his “credibility on the line”). We note, however, that this type of comment comes perilously close to being the basis for reversal, and it is only under the specific facts of this case that we find the error to be harmless. We caution that these types of comments should be avoided.

Affirmed.

MAY, DAMOORGIAN and LEVINE, JJ., concur.


author: KAHN, J.

text:
    Servando ORTUNO, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5902.
    District Court of Appeal of Florida, First District.
    March 2, 2011.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant, Servando Ortuno, Jr., challenges his conviction for lewd or lascivious molestation of a person less than 16 years of age, asserting the trial court abused its discretion by admitting into evidence the alleged victim’s prior consistent statements. We reverse, because the established rationale for allowing such statements as exceptions to the hearsay rule does not apply here.

FACTUAL AND PROCEDURAL BACKGROUND

At trial, the alleged victim, K.C., testified that appellant had touched her inappropriately on two occasions in 2008, around the time of her thirteenth birthday. Describing the incidents, K.C. said that appellant got on top of her while she was sitting in a recliner, and touched her breasts under her clothes.

In February 2009, an investigator, Jamie Bishop, came to K.C.’s school and asked her about appellant’s brother, Pedro Ortuno, and K.C.’s sister, S.C., who was 14 at the time. K.C. told Bishop that Pedro Ortuno and S.C. were having a sexual relationship. K.C. was then removed from her home and placed with the family of Jeffrey Uhrick, the biological father of another of her half-siblings. Approximately one week later, K.C. participated in a videotaped Child Protection Team (CPT) interview with Lisa Lustgarden, regarding the relationship between S.C. and Pedro Ortuno. Over defense counsel’s objection, K.C. testified that she also told Lustgarden about appellant touching her. On cross-examination, K.C. stated that she did not like Pedro telling her what to do, but liked living in Uhrick’s home, where she was treated well. K.C. recalled that conditions in her mother’s house, where she had lived before, were terrible and that the family sometimes did not have food to eat.

At trial, Lustgarden testified to KC.’s disclosures made during the interview. The trial court overruled the defense’s continuing objection to the content of the disclosures, which defense counsel argued were hearsay. Lustgarden asserted K.C. wrote down that appellant, in her words, “rubbed” her and, when asked where, wrote “my boobs.” Over defense counsel’s objection, Lustgarden acknowledged that, in the prosecutor’s words, K.C. described “being in the living room in the recliner at night watching TV and [appellant] gets on top of her ... [a]nd puts his hands underneath her clothes and touches her breasts.” On cross-examination, Lustgar-den testified that K.C. said she once slapped Pedro Ortuno, that she wanted to kill appellant because he had physically abused her mother, and that living with the Uhrick family was “awesome.”

The State moved the recorded CPT interview video, a DVD, into evidence. Defense counsel maintained previous objections to the contents of the video on the basis of hearsay. The jury found appellant guilty as charged. The trial court adjudicated appellant guilty and imposed a sentence of 52 months in state prison. Or-tuno now seeks review of the trial court’s admission of statements made by K.C. before trial.

ANALYSIS

We review evidentiary rulings for abuse of discretion. See Johnson v. State, 969 So.2d 938, 949 (Fla.2007). The trial court’s discretion, however, is constrained by the evidence code and applicable case law. See id.; Johnston v. State, 863 So.2d 271, 278 (Fla.2003); Hendricks v. State, 34 So.3d 819, 822 (Fla. 1st DCA 2010); McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). Though hearsay is generally inadmissible, the evidence code makes exception for prior consistent statements:

A statement is not hearsay if the declar-ant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication[.]

§ 90.801(2)(b), Fla. Stat. (2009). The window of admissibility, however, presupposes that the statement must have been made “prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.” See Preston v. State, 470 So.2d 836, 837 (Fla. 2d DCA 1985). Where prior consistent statements are made after the existence of “motivation to fabricate testimony, such hearsay statements are not admissible because they are not being offered to rebut an allegation of recent fabrication in order to rehabilitate a witness.” See Peterson v. State, 874 So.2d 14, 17 (Fla. 4th DCA 2004).

Here, the State’s case included unrebut-ted evidence that the alleged victim had a motive to falsify: having been removed from her home in February 2009 and placed under the care of Jeffrey Uhrick, K.C. testified that it was “awesome” living with the Uhrick family because they treated her like a daughter. K.C. agreed with defense counsel that she “finally” had a family that would love her. In contrast, K.C. conceded that “things were terrible” at her mother’s home. Sometimes, K.C. agreed, her mother did not have sufficient food at the house and had to “borrow” food from neighbors or the church. The foregoing testimony suggests that if, indeed, K.C. had a motive to fabricate the allegations leveled at trial against appellant — by claiming she had been molested by appellant, perhaps she could avoid a return to her mother’s home and remain in the Uh-ricks’ care — such motive existed before the CPT interview.

We hold that the admission of K.C.’s prior consistent statements, made during the CPT interview, was erroneous because the motive to falsify did not arise after that interview. K.C. had been removed from her mother’s home and was living with the Uhricks when Lustgarden conducted the CPT interview. It was Uhrick, in fact, who took K.C. to be interviewed by Lustgarden. Accordingly, K.C. had the same motivation, or bias, at the time she spoke with Lustgarden as when she testified at trial. Because the alleged victim’s prior consistent statements “were not made, as required by law, prior to the time that a motive to fabricate existed,” the trial court erred by admitting them. See LeBlanc v. State, 619 So.2d 1021, 1022 (Fla. 3d DCA 1993).

Nor do we believe the error was harmless. The State offered no corroborating evidence of, or eyewitness to, the charged criminal acts. Rather, the case turned entirely on the perceived truthfulness of K.C. and appellant. Thus framed, any testimony seen to bolster either side’s credibility would have been of significant import. The manner in which the prosecution presented the Lustgarden testimony is similarly troubling. The prosecutor exerted considerable effort to “qualify” Lust-garden as an expert interviewer, thus raising the inference that Lustgarden had the ability to extract truthful responses from sexually abused children. This approach, particularly in a case where the witness did not even offer opinion testimony, lent additional credence to Lustgarden’s account. The erroneously admitted testimony, moreover, was raised repeatedly, communicated to the jury by no fewer than three different witnesses (Bishop, Lustgar-den, and K.C. herself, through her recollection of the alleged incident as described to Lustgarden). As in Peterson, “where the victim’s credibility was at the heart of the trial and there was no physical, corroborative evidence against appellant,” the State cannot carry its burden to prove that the error was harmless beyond a reasonable doubt. See 874 So.2d at 18.

REVERSED and REMANDED for a new trial.

DAVIS and HAWKES, JJ., concur.


author: MAY, J.

text:
    E.B., The Father, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, and The Guardian Ad Litem Program, Appellees.
    No. 4D10-2721.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.
    Roger Ally of Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, West Palm Beach, for appellee.
    Hillary S. Kambour, Tavares, for Guardian Ad Litem Program.
   MAY, J.

A father appeals a supplemental order entered after the child was adjudicated dependent as to the mother, based upon her consent after mediation. He argues the trial court’s order fails to comply with Florida Rule of Juvenile Procedure 8.332 because it does not state with specificity the facts upon which the finding of dependency is based nor the requisite legal conclusions. The Department of Children and Families has confessed error. We reverse.

Rule 8.332(a) provides:

In all cases in which dependency is established, the court shall enter a written order stating the legal basis for a finding of dependency, specifying the facts upon which the finding of dependency is based, and stating whether the court made the finding by a preponderance of the evidence or by clear and convincing evidence. The court shall include the dates of the adjudicatory hearing, if any, in the order.

Fla. R. Juv. P. 8.332(a) (emphasis added). The order in this case fails to comply with the rule. The order is reversed, and the case is remanded for the trial court to comply with Rule 8.332(a). We find no merit in the issue on cross-appeal.

Reversed.

STEVENSON and CIKLIN, JJ., concur.

      . The Guardian ad Litem suggests the lack of written findings does not warrant a reversal because the trial court stated its reasons on the record. We disagree.


text:
    Louise GRIMALDI, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D10-4683.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.

      Louise Grimaldi, Pompano Beach, pro se.
    Dorothy S. Johnson, Deputy General Counsel, Tallahassee, for appellee.
   PER CURIAM.

The court has reviewed appellant’s pleading filed February 7, 2011, which was designated as appellant’s initial brief. A review of said brief demonstrates that no preliminary basis for reversal has been demonstrated. Therefore, the appeal is affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a).

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


text:
    Jesse BAZILE v. BAYOU STEEL CORPORATION.
    No. 10-CC-0982.
    Supreme Court of Louisiana.
    July 6, 2010.
   PER CURIAM.

Relator, Bayou Steel Corporation, seeks review of a ruling of the Office of Workers’ Compensation (“OWC”) on relator’s motion to submit certain evidence to the physician conducting an independent medical examination (“IME”) of the claimant. Specifically, relator objects to the portion of the ruling prohibiting relator from submitting surveillance video and correspondence from claimant’s treating physician to the IME physician.

Surveillance materials serve an important function in the search for truth. Wolford v. Jo Ellen Smith Psychiatric Hospital, 96-2460 (La.5/20/97), 693 So.2d 1164. Under the facts presented, we see no compelling reason why the IME physician should not have access to all relevant information, including surveillance material, in order to render an accurate opinion regarding claimant’s medical condition. See Washington v. Aetna Life Ins. Co., 03-0790 (La.App. 4 Cir. 07/02/03), 853 So.2d 34 (holding defendant “should be allowed to present its facts about the accident to the physicians to see if it changes the physicians’ opinions on the cause of the plaintiffs’ injuries”).

Accordingly, the ruling of the OWC, insofar as it prohibited relator from submitting surveillance video and correspondence from claimant’s treating physician to the IME physician, is reversed. The case is remanded to the OWC for further proceedings.

JOHNSON, J., would deny.

KNOLL, J., would deny.

WEIMER, J., would deny.

       Chief Justice Kimball not participating in this opinion. Retired Judge Philip C. Ciaccio participating.


text:
    Bradley GRIFFITH v. Resa LATIOLAIS.
    No. 2010-CJ-0754.
    Supreme Court of Louisiana.
    Nov. 17, 2010.
   ORDER

MOTION FOR CLARIFICATION GRANTED. Implicit in our opinion of October 19, 2010, reinstating the trial court’s judgment awarding joint custody of Cole Griffith to Resa Latiolais and Bradley Griffith and reversing the court of appeal’s judgment awarding sole custody to Resa Latiolais, was the reversal of the court of appeal’s ancillary visitation schedule. The case is remanded to the trial court to reconsider its joint custody implementation plan in light of this Court’s designation of Resa Latiolais as the domiciliary parent and to amend the plan if it deems appropriate. All costs associated with this motion for clarification are assessed against Bradley Griffith.


text:
    STATE of Louisiana v. Ruben CARTER.
    No. 2010-KK-1340.
    Supreme Court of Louisiana.
    Jan. 19, 2011.
    Trisha Ann Ward, Orleans Public Defenders, for Applicant.
    James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Bradley Michael Scott, Assistant District Attorney, for Respondent.
   PER CURIAM.

11 The state has charged defendant by bill of information with possession of stolen property valued at more than $500, in violation of La.R.S. 14:69. Defendant moved to suppress the evidence, consisting of items taken in a residential burglary and concealed in a nylon bag, seized on May 29, 2009, by the police from a house located at 4234 St. Anthony Street in New Orleans. The trial court denied the motion and the Fourth Circuit denied review. We granted defendant’s writ application to review the rulings below and reverse because the state failed to carry its burden of demonstrating that the warrantless search of the residence fell under any of the recognized exceptions to the warrant requirement.

Testimony adduced at the brief hearing conducted on the motion to suppress came from a single police officer who was not personally involved in the search that led to the recovery of the evidence. According to Detective Roger Caillouet, on May 29, 2009, the police received a report from a concerned citizen that one or more |2suspicious persons were loitering in the 1900 block of Stephen Girard Avenue in New Orleans. The caller did not provide a physical description and, in any event, the officers dispatched to that location failed to find anyone in the area. However, after asking the dispatcher to call the concerned citizen back, the officers were then redirected to 4234 St. Anthony Avenue, an address Detective Caillouet referred to as an “abandoned” house. The responding officers walked into the house, found defendant and Anthony Decuir inside, and, ultimately, discovered a nylon bag containing various items. Both individuals denied ownership of the bag, claiming that they had merely found it. The officers also determined that there was an outstanding warrant for Decuir’s arrest. They placed Decuir into custody and seized the bag. Defendant was not arrested at that time.

In the following week, the police received a report concerning the burglary of a home on Harrison Avenue in New Orleans. Detective Caillouet met with the victim and showed him the contents of the bag removed from 4234 St. Anthony Avenue. The victim positively identified the various items as taken from his home in the burglary. Detective Caillouet subsequently obtained a warrant for defendant’s arrest and he was taken into custody. The state introduced the detective’s affidavit in support of the arrest warrant and made it a part of the record at the suppression hearing. With respect to the initial report by the concerned citizen, the affidavit simply states that the responding officers “were directed to an abandoned house at the corner of St. Anthony Avenue and Mandolin St.”

Defendant testified at the suppression hearing that, in fact, he owns the residence at 4234 St. Anthony Avenue, property held in his family for 40 years and then “passed down” to him from a relative, and that he lived there. Defendant 1 .¡identified a document purporting to be a judgment placing him in possession of the property, although defense counsel did not introduce the document into evidence at the hearing. According to defendant, the police officers simply burst through the back door of his residence without his permission and without regard to his protests that he owned the house. Defendant also testified that the nylon bag containing the stolen items did not belong to him and that he had merely found it on the street.

We agree with the premise of the state’s argument, evidently adopted by the trial court as well although it provided no reasons for denying the motion to suppress, that an individual does not possess a reasonable expectation of privacy in an abandoned home and therefore may not complain about a warrantless entry of the premises by the police. See Rakas v. Illinois, 439 U.S. 128, 143, n. 12, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)(“One of the main rights attaching to property is the right to exclude others, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.... [B]y focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of privacy interests protected by that Amendment.”) (citation omitted); State v. Fielding, 37,943, p. 15 (La.App. 2nd Cir.12/10/03), 862 So.2d 420, 430 (“Defendant had no right to an expectation of privacy in the abandoned house which did not belong to him.”). In the present case, the state concedes that defendant’s unrebutted testimony he owned the house at 4234 St. Anthony and lived there meant that the house was not, in fact, abandoned. Defendant therefore possessed a reasonable expectation of privacy in the premises fully protected by the Fourth Amendment. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980)(“[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”)(internal quotation marks and citation omitted).

However, the state argues in support of the trial court’s ruling that the warrantless entry and search of the premises by the officers was nevertheless reasonable because they reasonably believed that the house was abandoned. Cf. Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148 (1990)(“It is apparent that in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government-whether the magistrate issuing a warrant, the police officer executing a warrant or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement — is not that they always be correct, but that they always be reasonable ....”) (citations omitted). Thus, the state argues that while defendant’s testimony he owned the house and lived in it was unrebutted, so, too, was Detective Caillouet’s testimony that the house appeared to be abandoned, a dispositive factual assertion for Fourth Amendment purposes that the trial court clearly adopted when it denied the motion to suppress.

Because defendant established that he owned and lived in the premises at 4234 St. Anthony and thus had a reasonable expectation of privacy in the premises, the state had the burden of justifying the warrantless entry and search of the home. State v. Redfearn, 441 So.2d 200, 201 (La.1983); State v. Franklin, 353 So.2d 1315, 1318-19 (La.1977). It was therefore incumbent upon the state to show that the appearance of the house gave rise to a reasonable, albeit | smistaken, belief the premises were abandoned, or that the officers had another reliable basis for reaching that conclusion, and not the defendant’s burden to show that from its appearance alone, the premises at 4234 St. Anthony could not reasonably and fairly be described as abandoned. However, Detective Caillouet did not testify that the house appeared abandoned. The officers on the scene evidently did not report that they viewed a dilapidated structure boarded up and surrounded by overgrown weeds, or that the officers came by a belief the home had been abandoned from any other reliable basis, e.g., that the concerned citizen, who left his or her contact number and provided the police with updated information, stated on the basis of personal knowledge that the residence had been abandoned by the owner. Compare State v. Brown, 09-2456, pp. 7-8 (La.5/11/10), 35 So.3d 1069, 1074 (police officer acted reasonably on basis of information supplied by tenant on one side of a double house that the persons on the other side were there without permission and dealing drugs when the officer opened the door to the residence and observed narcotics in plain view on table in the living room). The detective simply stated, as a matter of fact, that the residence was “abandoned.” However, in the face of defendant’s uncontested testimony that, as a matter of fact, the house was not abandoned, Detective Caillouet’s testimony was plainly insufficient to carry the state’s burden of showing, from “the facts available to the officer at the moment,” Rodriguez, 497 U.S. at 188, 110 S.Ct. at 2801, that the police possessed a reasonable belief the premises had been abandoned, although defendant in fact owned the home and lived in it, and that their warrantless entry over his protests was therefore also reasonable.

In the absence of any other exception to the warrant requirement, the trial court erred in denying the motion to suppress the evidence derivatively tainted by the prior | (¿Ilegal entry. Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963)(“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.... [T]he more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”)(internal quotation marks and citation omitted). The ruling of the trial court is therefore reversed, the motion to suppress evidence is granted, and this case is remanded to the trial court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED

JOHNSON, J., dissents.


text:
    In re Michael Wayne KELLY.
    No. 2010-B-1934.
    Supreme Court of Louisiana.
    Jan. 19, 2011.
    Rehearing Denied March 4, 2011.

      Charles Bennett Plattsmier, Baton Rouge, Louisiana, for Applicant.
    James Rodney Pierre, Michael Wayne Kelly, Pierre & Pierre, LLC, Monroe, Louisiana, for Respondent.
   PER CURIAM.

| ⅜ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael Wayne Kelly, an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1994. In 2003, this court suspended respondent from the practice of law for a period of six months for neglecting two legal matters and engaging in the commingling and conversion of client funds in a third matter. In re: Kelly, 03-0287 (La.10/21/03), 857 So.2d 451 (“Kelly I”). In determining a sanction, we recognized respondent’s misconduct was largely the product of negligence and did not result from an intentional desire by respondent to cause harm to his clients.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

Respondent represented a client in a worker’s compensation matter which was set for trial on March 11, 2005. Two days before trial, respondent contacted opposing | gcounsel and advised that he needed a continuance because he was unprepared. Counsel agreed to consult with his client to determine whether they would agree to a continuance. On the day before trial, respondent again contacted counsel, reiterating that he was not prepared for trial and that he had a second basis for a continuance in that he was scheduled to be in court in St. Martinville the next day.

When opposing counsel informed respondent that his client would not permit him to agree to a continuance, respondent filed a written motion for a continuance with the worker’s compensation hearing officer, wherein he stated, “Mover shows that he is scheduled to attend court in St. Martinville Parish in the matter captioned State of Louisiana v. Billy Williams, Jr.” The hearing officer subsequently held a status conference to discuss respondent’s request for continuance. During the conference, respondent indicated the Billy Williams matter had been set for trial in December 2004, but was continued and given a preferential setting for March 11, 2005, the date of the worker’s compensation trial. When respondent indicated the conflict could not be resolved, the hearing officer granted a continuance.

These representations by respondent were subsequently determined to be false. In particular, although respondent was a friend of the family of Billy Williams, he was not counsel of record for Mr. Williams and there was no court matter scheduled in St. Martinville on March 11, 2005.

DISCIPLINARY PROCEEDINGS

In July 2007, the ODC filed formal charges against respondent. As to Count I, the ODC alleged respondent violated the following provisions of the Rules of ^Professional Conduct: Rules 3.8(a)(1) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fad to correct a false statement of material fact or law previously made to the tribunal by the lawyer), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges, denying any misconduct. This matter then proceeded to a formal hearing on the merits, which was conducted by the hearing committee in February and March 2009.

Hearing Committee Report

On the first day of the hearing in this matter, respondent withdrew his former denials of the allegations made by the ODC. In doing so, respondent stipulated to the factual allegations and rule violations alleged in the formal charges.

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

1. Respondent represented a client in a worker’s compensation matter against the Carroll Parish Police Jury, which was defended by Attorney Anzelmo.
2. The matter was set for trial for Friday, March 11, 2005, before Worker’s Compensation Judge Brenza Irving in Tallulah.
3. Two days before trial, respondent contacted Anzelmo and advised that he needed a continuance because he was unprepared.
4. Anzelmo agreed to ask his client whether they would agree to continue the trial.
5. On the day before trial, respondent again contacted Anzelmo and reiterated that he was unprepared for trial and that he also was scheduled to be “in court in St. Martinville” on that day.
|46. Anzelmo and his client did not agree to the continuance.
7. Respondent filed a written motion for a continuance, in which he stated: “Mover shows that he is scheduled to attend court in St. Martin-ville Parish in the matter captioned State of Louisiana v. Billy Williams, Jr.”
8. Judge Irving held a status conference on the day before the scheduled trial to discuss the request for continuance. During that conference, respondent indicated the matter of State of Louisiana v. Billy Williams, Jr. had been set for trial in December 2004, but was continued by Judge deMahy and given a preferential setting for March 11, 2005, the date of the Office of Worker’s Compensation trial. Respondent indicated the conflict could not be resolved, as he was required to appear in St. Martin-ville on March 11. Following additional inquiries, and in an effort to resolve the conflict, respondent advised the court of the unavailability of other counsel to handle the Office of Worker’s Compensation trial. Under the circumstances, the trial was continued.
9. There was no trial or court date scheduled in the State v. Williams matter for March 11, 2005. Rather, Mr. Williams, who was charged with at least one count of armed robbery, had been given a preferential court date of October 14, 2005. Mr. Williams was facing a potential life sentence, due to a threatened habitual offender bill.
10. Respondent was not enrolled as counsel of record for Mr. Williams, but was working with him to obtain a plea agreement. Mr. Williams was respondent’s former client.
11. On the first day of testimony (February 24, 2009), in this committee’s hearing on these formal charges, respondent withdrew his former denials of the allegations regarding Count I. In doing so, respondent agreed to and stipulated Uto the factual allegations and the rule violations as alleged in Count I of the formal charges.
12. At the hearing, respondent stated: “I filed a pleading in the record, and that pleading said that there was a trial to be held, and I think that that [sic] in and of itself, is the crux of my misrepresentation because I said that and that was a lie. That was not true.”
13. Respondent did travel to Iberia Parish on March 11, 2005 to meet with Mr. Williams. He was able to effectuate a plea deal for Mr. Williams with the district attorney’s office for the 16th JDC, for which Mr. Williams received a ten-year sentence.

In light of the above findings, the committee determined respondent’s statements to the hearing officer were clearly intentional. Respondent admittedly lied to and misled the hearing officer about facts material to the hearing officer’s decision to grant the continuance. As a result of his misconduct, respondent’s client and Mr. Anzelmo’s client were denied the opportunity to present their case in court on the date previously set for trial. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.

The committee did not specifically discuss whether any aggravating factors were present, although it recognized respondent’s prior disciplinary record in Kelly I and the fact that he persisted in his denial of wrongdoing until one week prior to the hearing, requiring the ODC to unnecessarily subpoena witnesses and prepare for trial. In mitigation, the committee found respondent showed remorse.

| (iUnder these circumstances, the committee recommended respondent be suspended from the practice of law for one year and one day, with six months and one day deferred.

The ODC filed an objection to the hearing committee’s recommendation, arguing that the recommended sanction is inadequate given all the facts and circumstances, including the prior disciplinary record of respondent.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the evidence adduced at the hearing and/or by respondent’s stipulation. The board determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board found respondent violated a duty owed to the legal system by intentionally lying to the worker’s compensation hearing officer. In addition to the injury that is inherent when a lawyer fails to demonstrate candor toward a tribunal, respondent’s lie created a basis for the hearing officer to grant a continuance, causing a delay in the worker’s compensation matter. Further, the hearing officer expended considerable time dealing with the consequences of respondent’s lie. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction in this matter is suspension.

The board found the following aggravating factors present: prior disciplinary offenses, a pattern of misconduct, submission of false statements during the disciplinary process, and substantial experience in the practice of law (admitted 1994). The board found no mitigating factors present and indicated that the 17committee’s finding of remorse is inconsistent with respondent’s long-held denial of wrongdoing in his written and attested representations to the ODC.

Considering this court’s prior jurisprudence and the numerous aggravating factors present in this case, the board recommended respondent be suspended from the practice of law for eighteen months, with all but one year deferred. One board member dissented and would recommend an eighteen-month suspension with all but one year and one day deferred, “such that the Respondent would be required to apply for reinstatement before being allowed to return to the practice of law.”

Both respondent and the ODC filed objections to the sanction recommended by the disciplinary board. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

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.

| ¿^Respondent has admitted that he misrepresented facts to a worker’s compensation hearing officer in order to establish grounds to obtain a continuance. Respondent stipulated that this conduct violated Rules 3.3(a)(1), 8.4(a), and 8.4(c) of the Rules of Professional Conduct. Accordingly, the only issue before us is a determination of the appropriate sanction for the misconduct.

In considering that issue, 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 ease and the seriousness of the offenses involved considered in light of any aggravating and mitigating cireum-stances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent violated duties owed to the legal system. In order to convince a worker’s compensation hearing officer to grant a continuance, respondent intentionally misrepresented that he had a trial scheduled in a criminal case, and thus had a conflict with the scheduled hearing in the worker’s compensation matter. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for this type of misconduct is a period of suspension. There are numerous aggravating factors present, as found by the board, and there are no mitigating factors present.

Under the totality of the circumstances, we find the appropriate sanction in this matter is a suspension irom the practice of law for eighteen months, with all but one year deferred. Following the completion of the active portion of his suspension, respondent shall be placed on unsupervised probation for a period of one year, subject to the condition that any misconduct during this period may be grounds for making 19the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Michael Wayne Kelly, Louisiana Bar Roll number 23159, be and he hereby is suspended from the practice of law for eighteen months, with all but one year deferred. Following completion of the active portion of his suspension, respondent shall be placed on unsupervised probation for one year, subject to the condition that any misconduct during this period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. 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.

      . The ODC dismissed a second count of misconduct (Count II) following the issuance of the hearing committee’s report. As such, this opinion will not address the merits of the dismissed count and the dismissed rule violations.

      . In response to the complaint filed against him by his opposing counsel and the worker's compensation hearing officer, respondent asserted that he “did not lie or make any misrepresentations” to the hearing officer. Several months later, respondent provided a second response to the complaint in which he maintained that he "acted in good faith and honestly.” Respondent continued to deny any wrongdoing in his sworn statement to the ODC in May 2006, testifying that any incorrect statements in the motion for a continuance were simply "an error.”

      . Respondent further objected to the imposition of the costs associated with Count II of the formal charges since that count had been dismissed by the ODC. In this regard, respondent should follow the procedures for objecting to costs as set forth in Supreme Court Rule XIX, Appendix A, Rule 7.


text:
    Ellis HARGRAVE v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2010-C-1044.
    Supreme Court of Louisiana.
    Jan. 19, 2011.
    Rehearing Denied March 4, 2011.
    Michael Benny Miller, for Applicant.
    Sylvia M. Fordice, Lockport, New York, for Respondent.
   PER CURIAM.

| ,We granted certiorari in this case to determine whether the court of appeal erred in finding annual and sick leave is not included within the calculation of an hourly employee’s average weekly wage for purposes of determining the appropriate workers’ compensation benefit. For the reasons that follow, we conclude the court of appeal did not err in holding such benefits were not included, and therefore affirm the judgment of the court of appeal.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The underlying facts of this matter are undisputed. Ellis Hargrave was employed by the State of Louisiana, through the Department of Transportation and Development (“DOTD”), as a mobile machine operator. In June 2005, Mr. Hargrave was injured when he slipped and fell in the course and scope of his employment. At that time, he was earning a bi-monthly wage of $1,095.76 for eighty hours of work, or $547.88 for forty hours per week (Monday through Friday). In the four weeks prior to his accident, Mr. Hargrave used thirty-two hours of annual leave, and eight hours of sick leave. On April 12, 2006, DOTD began paying Mr. Hargrave 12weekly disability benefits in the amount of $379.87, based on a reported average weekly wage of $569.80.

Subsequently, Mr. Hargrave filed a disputed claim for compensation with the Office of Workers’ Compensation (“OWC”), seeking both medical and disability benefits, plus attorney fees, penalties, costs, and interest. Essentially, he argued DOTD failed to include an amount for the value of paid leave, based on the twenty-six weeks of work prior to his accident under La. R.S. 23:1021(12)(d).

DOTD reconvened, seeking a credit for overpayment of benefits. DOTD contended that it had calculated Mr. Hargrave’s average weekly wage under La. R.S. 23:1021(12)(a)(i), using his income at the time of the claim, as opposed to his income at the time of the accident.

The matter proceeded to a trial on the merits. At trial, DOTD stipulated that Mr. Hargrave was entitled to temporary total disability benefits, but disputed the amount of those benefits. DOTD also stipulated that it owed penalties based on its failure to pay certain benefits timely.

DOTD presented the testimony of its current adjuster, Lisa Stanford. Ms. Stanford testified DOTD overpaid Mr. Hargrave based on his reported average weekly wage at the time of disability, as opposed to his average weekly wage at the time of the accident. Ms. Stanford also admitted that DOTD underpaid certain mileage sought by Mr. Hargrave, and was late with payments on certain medical bills. She explained she could not verify medical services on the unpaid mileage, and the medical bills were re-processed to verify the service.

Mr. Hargrave testified he sought mileage for medical services provided during his treatment on the days which DOTD refused to pay, and he sought emergency room medical services for his work-related injury, which DOTD had not paid.

IsDOTD also offered the testimony of Mary Kay McRae, who is employed as a Human Resources Manager for DOTD. Ms. McRae testified Mr. Hargrave worked forty hours per week for the four weeks immediately prior to the accident, and did not work any overtime. She also explained the paid annual and sick leave for hours not worked during the four weeks are included in the employee’s bi-monthly pay, if the employee had adequate accumulated leave balances. According to the evidence submitted by DOTD, Mr. Har-grave used thirty-two hours of annual leave, and eight hours of sick leave during the four-week period prior to his accident.

At the conclusion of trial, the OWC rendered judgment in favor of Mr. Hargrave, awarding him temporary total disability benefits in the amount of $424.28, beginning from January 31, 2006, subject to a credit for all weekly compensation benefits paid by DOTD. In arriving at this figure, the OWC added $103.54 to Mr. Hargrave’s actual weekly wages of $547.88, representing the value of annual and sick leave benefits. The addition of these fringe benefits had the effect of increasing his average weekly wage to $651.42, thereby resulting in a weekly compensation rate of $424.28. The OWC also ordered DOTD to pay penalties for certain underpayments, plus late payments, including $196.72 for mileage, $8,000 in penalties, and $18,900 in attorney fees and costs, including expenses in the amount of $641.31.

Both DOTD and Mr. Hargrave appealed. In a split decision, a five-judge panel of the court of appeal reversed in part and affirmed in part. Hargrave v. State of Louisiana Through Department of Transportation and Development, 09-818 (La.App. 3 Cir. 4/7/10), 35 So.3d 437.

|4The majority opinion concluded the OWC erred in including the value of Mr. Hargrave’s annual and sick leave in the calculation of his average weekly wage. Citing Ivory v. Southwest Developmental Center, 07-1201 (La.App. 3 Cir. 3/5/08), 980 So.2d 108, the majority determined that when a claimant is paid on an hourly basis, and his average weekly wage is calculated using La. R.S. 23:1021(12)(a)(i), fringe benefits in the form of annual and sick leave are already included in that calculation. The majority found Mr. Har-grave’s correct average weekly wage was $547.88, resulting in a compensation rate of $365.25. The majority further concluded DOTD overpaid Mr. Hargrave’s weekly benefits based on an error in the calculation of his weekly wage, and it was entitled to an offset of $2,703.07 under La. R.S. 23:1206.

Finally, the court affirmed the OWC’s award of attorney fees in the amount of $18,900, and awarded an additional $1,500 for the appeal. It also concluded the OWC erred in failing to award interest, and amended the judgment to award legal interest beginning on the date compensation was due, and also awarded interest on the penalties and attorney fees beginning on the date of the judgment.

Two judges dissented from the portion of the judgment finding Mr. Hargrave’s sick and annual leave should not be included in the calculation of his average weekly wage. These judges would have affirmed the OWC’s inclusion of these benefits in the calculation of Mr. Hargrave’s average weekly wages.

Upon Mr. Hargrave’s application, we granted writs to review the correctness of the court of appeal’s judgment. Hargrave v. State of Louisiana Through Department of Transportation and Development, 10-1044 (La.9/17/10), 45 So.3d 1034. The sole issue presented for our consideration is whether the value of an employee’s fringe benefits should be included in the calculation of the employee’s average weekly wage.

DISCUSSION

Prior to 1999, the law was silent regarding whether fringe benefits could be in-eluded in the calculation of an employee’s average weekly wage for purposes of determining workers’ compensation benefits. Nonetheless, several appellate decisions held any remuneration, including fringe benefits such as accrued leave, was used to enhance an employee’s average weekly wage. See Burns v. St. Frances Cabrini Hosp., 02-518, p. 2 (La.App. 3 Cir. 10/30/02), 830 So.2d 572; Moses v. Grambling State Univ., 33-185 (La.App. 2 Cir. 5/15/00), 762 So.2d 191, writ denied, 00-1769 (La.9/22/00), 768 So.2d 1285; Transp. Ins. Co. v. Pool, 30,250 (La.App. 2 Cir. 5/13/98), 714 So.2d 153, writ denied, 98-1566, 98-1616 (La.9/25/98), 725 So.2d 486; Leson Chevrolet, Inc. v. Tricke, 98-1328 (La.App. 5 Cir. 9/28/99), 742 So.2d 1047; and GNB, Inc. v. Jones, 29,779 (La.App. 2 Cir. 8/20/97), 699 So.2d 466.

In 1999, the legislature amended La. R.S. 23:1021 to add subsection(10)(f), which was later redesignated as subsection (12)(f), and currently provides:

| fi(f) Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage, [emphasis added]

In Sterling v. Asplundh Tree Expert Co., 03-266, p. 9 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, 130, writ denied, 03-3017 (La.1/30/04), 865 So.2d 79, the court of appeal held that “[a]ny fringe benefit that an employer provides is taxable and must be included in the recipient’s pay unless that fringe benefit is specifically excluded by the law.” Thus, the Sterling court concluded the OWC did not err in including paid holiday and vacation fringe benefits when calculating the claimant’s average weekly wage.

In Ivory v. Southwest Developmental Center, 07-1201 (La.App. 3 Cir. 3/5/08), 980 So.2d 108, the court of appeal addressed a situation in which the claimant used sixteen hours of paid absences during the four full weeks preceding her accident. The court reasoned that “[b]ecause these benefits are taxable when they are used, we find that they are included in Ivory’s pay and the calculation of her average weekly wage.” Ivory, 07-1201 at 6, 980 So.2d at 114. However, the court also held that the hours of leave the claimant earned during that time (but did not use) would not be included in her average weekly wage calculation.

17A contrary result was reached by the court in Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 09-1219, p. 15 (La.App. 3 Cir. 6/2/10), 38 So.3d 1196, 1106. In that case, the court included in the claimant’s average weekly wage calculation the average weekly fringe benefits (paid time off and extended illness time) earned by the claimant during the four-week period prior to the injury. In rejecting the approach of the Ivory court, the Clay court stated:

There has been a tendency to misinterpret subsection (f) as requiring that a specific benefit must have been received on a check and therefore “taxed” before being considered in a claimant’s [average weekly wage]. We disagree with this interpretation because subsection (f) requires benefits to be “taxable,” not “taxed.”
Id. at 16, 38 So.3d at 1207.

In the instant case, Mr. Hargrave asks us to adopt the approach of the Clay court and include the value of the fringe benefits in the calculation of his average weekly wage. As authority for calculating the value of these benefits, Mr. Hargrave relies on the “other wages” provision of La. R.S. 23:1021(12)(d).

We find Mr. Hargrave’s reliance on La. R.S. 23:1021(12)(d) is misplaced. That statute provides:

(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week, [emphasis added]

[/There is no evidence in the record that Mr. Hargrave was “employed on a unit, piecework, commission, or other basis.” To the contrary, the record reveals he was paid on an hourly basis. Therefore, the calculation of Mr. Hargrave’s average weekly wage is governed by La. R.S. 23:1021(12)(a)(i), which provides, in pertinent part:

If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater.

Following the approach of the Ivory court, any annual or sick leave used by Mr. Hargrave during the four weeks prior to his accident would be included in the calculation of his average weekly wage. However, Mr. Hargrave argues the fallacy of this approach is that La. R.S. 23:1021(12)(a)(i) focuses on the “average actual hours worked in the four full weeks preceding the date of the accident” [emphasis added]. By referring to “actual hours worked” and “four full weeks,” Mr. Hargrave asserts the legislature did not intend to include annual or sick leave within the four full weeks calculation.

We recognize there is some appellate jurisprudence supporting Mr. Hargrave’s position. See, e.g., Doucet v. Crowley Manufacturing, 96-1638 (La.App. 3rd Cir.4/30/97), 693 So.2d 328 (holding an average weekly wage calculation should not include a vacation week or time when the factory was closed and the employee worked a “light schedule”). Nonetheless, under the facts of the instant case, we find no need to resolve this issue.

La. R.S. 23:1021(12)(a)(i) provides the average weekly wage is calculated based on the “average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater” [emphasis added]. In using this language, the legislature indicated its intent to base the calculation of an employee’s 19average weekly wage on the employee’s ordinary earning capacity, not actual hours being worked at the time of the injury. See Malone & Johnson, 14 Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice § 322, p. 82 (2002 ed.). In the case at bar, the testimony of Ms. McRae, DOTD’s Human Resources Manager, indicates Mr. Hargrave generally worked a normal forty-hour week. According to Ms. McRae, he did not work any overtime during the four weeks preceding his accident. Because Mr. Har-grave did not work more than forty hours during the four weeks prior to his accident, his average weekly wage is calculated based on his normal forty-hour week, and there is no need to look to the actual hours worked.

This analysis also reveals why annual and/or sick leave used during the four-week period is largely transparent for purposes of calculating Mr. Hargrave’s average weekly wage. It is true these hours, when used by Mr. Hargrave to satisfy the normal forty-hour work requirement, may be considered a “taxable benefit” for purposes of La. R.S. 23:1021(12)(f). Nonetheless, for purposes of the instant facts, they do not result in Mr. Hargrave actually working beyond forty hours, and therefore do not impact the calculation of his average weekly wage beyond the base forty-hour calculation.

Similarly, we do not find the annual and sick leave benefits accrued, but not used, during the four-week period should be factored into the calculation of Mr. Har-grave’s average weekly wage. As observed by the Clay court, it can be said such benefits are potentially “taxable” for purposes of La. R.S. 23:1021(12)(f), even though they are not actually taxed until used. However, we do not believe the legislature intended such an expansive use of the word “taxable.” As discussed in | ^Malone & Johnson, 14 Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice § 324 at 91-92, the courts, in determining which types of remuneration should be included for compensation purposes, looked to those forms which provide a real and reasonably definite economic gain to the employee, such as bonuses, waitress tips, meals, board, lodging, laundry, or other similar services under the contract of employment. The common thread among all these forms of remuneration is that they provide an immediate benefit to the employee, as opposed to a future benefit. Against this jurisprudential backdrop, it is reasonable to assume the legislature intended that “taxable benefits” would refer to those benefits which are actually taxed upon being received by the employee, and not benefits which are only potentially taxable at some uncertain point in the future.

In summary, we conclude the court of appeal correctly found the OWC erred in including annual and sick leave to increase Mr. Hargrave’s average weekly wage. The annual and sick leave actually used by Mr. Hargrave during the four weeks preceding the accident became taxable when used, and already were included in the calculation of his average weekly wage. To the extent the annual and sick leave hours were merely accrued and not used, these benefits are not taxable, and therefore should not included in the determination of the average weekly wage under La. R.S. 23:1021(12)(f).

|nDECREE

For the reasons assigned, the judgment of the court of appeal reducing Ellis Har-grave’s weekly indemnity benefits from $424.28 to $365.25, and granting an offset to the State of Louisiana, Department of Transportation and Development for amounts overpaid, is affirmed.

      . The OWC determined that in the twenty-six weeks prior to his accident, Mr. Hargrave used 196.5 hours of paid leave (164.5 hours of annual leave, and 32 hours of sick leave), and multiplied that figure by $13.70 (Mr. Har-grave’s hourly wage), equaling $2,692.05. The OWC then divided this figure by twenty-six to arrive at $103.54 as the value of Mr. Hargrave's weekly fringe benefits.

      . La. R.S. 23:1206 provides,
      Any voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, which were not due and payable when made, may be deducted from the payments to be made as compensation.

      . Neither party sought review of the court of appeal's judgment insofar as it affirmed the OWC's award of attorney fees, and awarded additional attorney fees and interest. Accordingly, this portion of the court of appeal's judgment is final, and these issues are not before us.

      . Subsection (10)(f) was added to exclude from the calculation of a claimant’s average weekly wage those "fringe benefits” that are not taxable to an employee for federal income tax purposes.” In 2001, the legislature amended La. R.S. 23:1021(10)© to include language "including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage” following "average weekly wage.”

      . The court in Sterling explained that excluded benefits include items such as accident and death benefits, group-term life insurance coverage, meals, and moving expense reimbursements. Sterling, 03-266 at 9, 856 So.2d at 130.

      . Mr. Hargrave argues an employee with annual and sick leave benefits in effect has a higher hourly wage than an employee making an identical wage but without such benefits, as the employee with benefits is paid for time he or she does not actually work. He suggests this analysis demonstrates accrued benefits have a tangible value. We do not dispute accrued annual and sick leave benefits may have some value. However, we have determined the legislature has decided to include only benefits which are actually taxed, not potentially taxable benefits. The broader policy question of whether potentially taxable benefits should be included in the calculation of average weekly wage addresses itself to the legislature, not the courts.


text:
    In re Tiffany Ann MYLES.
    No. 2008-OB-2469.
    Supreme Court of Louisiana.
    Jan. 25, 2011.
   ORDER

Considering the original and supplemental “Report on Conditional Admission” filed by the Office of Disciplinary Counsel, and the response thereto filed by petitioner,

IT IS ORDERED that the probationary period imposed by this court in In re: Myles, 08-2469 (La.10/16/08), 992 So.2d 922, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.


author: VICTORY, J.

text:
    In re Michael T. BECKERS.
    No. 2005-OB-2385.
    Supreme Court of Louisiana.
    Jan. 28, 2011.
   ORDER

VICTORY, J.

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Beckers, 05-2385 (La.12/16/05), 916 So.2d 1027, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.


author: JOHNSON, J.,

text:
    Malcolm THOMAS v. Randall HODGES and State Farm Mutual Automobile Insurance Co.
    No. 2010-C-2637.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   On Supervisory Writ of Review to the Court of Appeal First Circuit, Parish of East Feliciana.

Writ application denied.

JOHNSON, J.,

would grant the writ application and assigns reasons.

Even though summary judgment is now favored, it is not appropriate for judicial determination of subjective facts, such as motive, intent, good faith, or knowledge that calls for credibility evaluations and the weighing of testimony. Tillman v. Eldridge, 17 So.3d 69 (La.Ct.App.2d Cir.2009). The case at bar involves conflicting testimony from the same witnesses. Recanted testimony can serve as the basis for a judgment. It can also serve as a fact in dispute, and it should not be weighed against other testimony from the same witness as this calls for a credibility determination. Considering the fact that several of the witnesses, who are, coincidently, either close relatives or friends of the defendant, have recanted their testimony that is crucial to a determination of liability in this case, in my view, summary judgment is not appropriate.


text:
    STATE ex rel. Leighton HILLS v. STATE.
    No. 2010-KH-0168.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   PER CURIAM.

|, Writ granted; relief denied. The court of appeal erred when it dismissed relator’s application as untimely based on the time lapse between his post-conviction discovery of the discrepancy in the trial transcripts and the filing of his application for post-conviction relief. “The exception to the [two]-year time bar provided by La. C.Cr.P. art. 930.8(A)(1) for claims based on facts ‘not known to the petitioner or his attorney’ imposes no express diligence requirement on the inmate and remains subject only to the laches-like provisions of La.C.Cr.P. art. 930.8(B), which authorize the dismissal of any timely-filed application or one filed under any of the statutory exceptions to the time bar when the state shows that delay has prejudiced its ability to respond to the application as the result of events not within its control....” Carlin v. Cain, 97-2390 (La.3/13/98), 706 So.2d 968. While the intervening death of relator’s trial attorney may have qualified as an event prejudicing the state’s ability to rebut the allegations in the | ^.petition, dismissal of the application on that basis may occur only “after a hearing limited to that issue” in the district court. La.C.Cr.P. art. 930.4(B).

Nonetheless, under either version of the trial transcript, relator fails to show that he was denied the right to testify under the standards set forth in State v. Hampton, 00-0522, pp. 14-15 (La.3/22/02), 818 So.2d 720, 729-30 (inmate must “allege specific facts, including an affidavit from counsel” and point to record evidence to support his claim). See also La.C.Cr.P. art. 930.2. Accordingly, relator shows no grounds for substantive relief.

      . Chief Justice Catherine Kimball, not participating.