text:
    Telacy Augusta ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0486.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The judgment of contempt and ensuing sentence are reversed. See J.A.H. v. State, 20 So.3d 425, 428 (Fla. 1st DCA 2009); O’Neal v. State, 501 So.2d 98, 100 (Fla. 1st DCA 1987).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Darin A. COBB, Appellant, v. Helena COBB, Appellee.
    No. 1D11-1587.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.

      Darin A. Cobb, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983); see also Brigham v. State, 769 So.2d 1100, 1101 (Fla. 1st DCA 2000) (distinguishing avenues for obtaining belated appeal in criminal and civil cases). This dismissal is without prejudice to the appellant’s right to seek relief in the trial court or to bring a timely appeal from the final order resolving the appellees claim for bridge-the-gap alimony. McGuire v. McGuire, 42 So.3d 932 (Fla. 5th DCA 2010) (dismissing premature appeal where order appealed did not resolve issue concerning alimony).

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Deangelo SHORTS, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, Appellee.
    No. 1D11-1735.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Deangelo Shorts, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Deangelo M. Shorts appeals a final order of paternity and administrative determination of child support. Counsel for appellee Department of Revenue has filed a confession of error, agreeing that further proceedings in the lower tribunal are necessary. Accordingly, the order on appeal is hereby vacated and the matter is remanded to the agency for further administrative proceedings, as appropriate.

REVERSED.

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


text:
    Timothy Lee DALLAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2373.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Robert L. Sirianni, Jr., and Paetra T. Brownlee of Brownstone, P.A., Winter Park, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is granted. Petitioner’s failure to timely file the notice of appeal in case number 1D11-1784 is hereby excused. The show cause order issued on April 7, 2011, in case number 1D11-1784 is discharged.

PETITION GRANTED.

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


text:
    CCB, LLC, Charles B. Barniv, Cynthia Barniv, and Bruce G. Witkind, Appellants, v. BANKTRUST, An Alabama Banking Corporation, Appellee.
    No. 1D11-2375.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Karen L. Arnett and Jane E. Kerrigan of Arnett & Kerrigan, P.L., Miramar Beach, for Appellants.
    C. Jeffrey Mclnnis of Anchors Smith Grimsley, PLC, Fort Walton Beach; George M. Walker and Paul T. Beckmann of Hand Arendall LLC, Mobile, Alabama, for Appellee.
   PER CURIAM.

DISMISSED. See Conti v. B & E Holdings, LLC, 61 So.3d 1272 (Fla. 1st DCA 2011). In light of the dismissal, the Emergency Motion to Stay Appeal and Remand to the Trial Court, filed on May 5, 2011, is denied as moot.

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


text:
    Michael John TRAYDON, Former Husband, Appellant, v. Amy Michelle TRAYDON, Former Wife, Appellee.
    No. 1D11-2453.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Robert A. Sandow, Live Oak, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Court has determined that because the order on appeal fails to bring the judicial labor to an end with regard to non-collateral matters, the appeal is premature. See, e.g., Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002) (dismissing appeal from dissolution order that was not final because it reserved jurisdiction to determine equitable distribution). Accordingly, the appeal is dismissed.

BENTON, C.J., LEWIS and WETHERELL, JJ., concur.


text:
    JACKSONVILLE SHERIFF’S OFFICE/CITY OF JACKSONVILLE RISK MANAGEMENT, Appellants, v. Gerald SMITH, Appellee.
    No. 1D11-2744.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Wendy L. Mummaw, Assistant General Counsel, Office of General Counsel, Jacksonville, for Appellants.
    Kelli Biferie Hastings of Bichler, Clel-land, Oliver, Kelley, Hastings, Longo, Spears, and Parrish, PLLC, Maitland, for Appellee.
   PER CURIAM.

Upon review of Appellants’ response to this Court’s show cause order entered June 1, 2011, the Court DISMISSES this appeal for lack of jurisdiction. In the order, the Judge of Compensation Claims (JCC) found the statute of limitations did not bar Claimant’s petition for benefits and indicates all other issues will be heard at a subsequent proceeding. Accordingly, the order is not a final order because it does not dispose of all matters presented to the JCC for adjudication. See, e.g., Emro Marketing v. Schwier, 670 So.2d 1141 (Fla. 1st DCA 1996); Bradley v. Hurricane Restaurant, 652 So.2d 443 (Fla. 1st DCA 1995). Further, the order is not an ap-pealable non-final order because it does not contain the certification required by Florida Rule of Appellate Procedure 9.180(b)(1)(C). See, e.g., Landry v. AMS Staff Leasing, 993 So.2d 1071 (Fla. 1st DCA 2008); Sun Sentinel & Tribune Co. v. Petrovich, 744 So.2d 1056 (Fla. 1st DCA 1999); Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998). Cf. City of Fort Lauderdale v. St. Louis, 917 So.2d 224 (Fla. 1st DCA 2005).

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    Edwin FORD, III, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, o/b/o Monica-Marie Clarke Appellee.
    No. 1D11-2753.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Edwin Ford, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Edwin Ford, III, appeals a final administrative support order. Counsel for ap-pellee Department of Revenue has filed a confession of error, agreeing that further proceedings in the lower tribunal are necessary. Accordingly, the order on appeal is hereby vacated and the matter is remanded to the agency for further administrative proceedings, as appropriate.

REVERSED.

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


text:
    C.L., Father of H.D. and T.A.D., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-1941.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Lucas Jordan Taylor, Live Oak, for Appellant.
    Tracy Sorcek, Department of Children and Families, Tallahassee; Monica Taibl, Guardian Ad Litem, Lake City; Ward L. Metzger, Children’s Legal Services, Jacksonville; Kelley Schaeffer, Guardian Ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

We conclude that the trial court erred in holding the final hearing on termination of parental rights at a time when the appellant could not be present. Although the appellant was aware that his failure to appear at the hearing would be deemed a consent to termination, he had informed the court prior to the hearing that he could not attend on the scheduled date because he was working in Louisiana and could neither miss work nor afford to make the trip until he was paid. See In re H.S., 995 So.2d 516, 516 (Fla. 2d DCA 2008) (deeming financial hardship of a parent a circumstance beyond the parent’s control); In re A.N.D., 883 So.2d 910, 914 (Fla. 2d DCA 2004) (explaining that courts should avoid terminating a parent’s rights if the parent is making a reasonable effort to be present at the hearing but is prevented by circumstances beyond his or her control). He had requested only a short delay until he could be paid and travel to Florida, and the Department neither disputed or disproved the facts on which the appellant relied. Therefore, we reverse the final order terminating the appellant’s parental rights and remand for a new final hearing.

Reversed and remanded.

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


author: WALLACE, Judge.

text:
    Hank STRICKLAND, Appellant, v. Lenore JACOBS, as Trustee of the Coastal Land Trust; James M. Moyles, III; and Garth Cooperider, Appellees.
    No. 2D10-2195.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2011.
    Kenneth L. Olsen of Law Firm of Kenneth L. Olsen, Tampa, for Appellant.
    Richard R. Garland and R. Laine Wilson Harris of Dickinson & Gibbons, P.A., Sarasota, for Appellees.
   WALLACE, Judge.

Hank Strickland appeals a final summary judgment entered in favor of James M. Moyles, III, and Lenore Jacobs, as Trustee of Coastal Land Trust (Coastal). We affirm the final summary judgment in favor of Mr. Moyles, but we reverse the final summary judgment in favor of Coastal.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On August 80, 2007, Mr. Strickland filed a one-count complaint for “False Arrest/Imprisonment” against Mr. Moyles, Coastal, and Garth Cooperider. Mr. Strickland’s claim arose from his brief detention in the back of a patrol car on September 5, 2003, almost four years earlier. In his complaint, Mr. Strickland alleged that before September 5, Florida Oil Services, Inc., (Florida Oil), placed certain equipment in an oil change facility leased on its behalf from Coastal. On September 5, in the course of his employment with Florida Oil, Mr. Strickland was supervising the removal of the equipment from the facility when Mr. Moyles and Mr. Cooperi-der, “acting within the course and scope of their employment with ... Coastal Land Trust, advised [him] ... that he should cease and desist from removing the [equipment] ... from the premises or they would call the police and have him arrested.” Mr. Strickland alleged further that he “continued to remove the [equipment] ... and ... [Mr.] Moyles ... and [Mr.] Cooperider, acting in the course and scope of them employment, called the police, falsely told the police that the [equipment] ... [was] owned by ... Coastal Land Trust, and instructed the police to arrest ... [Mr.] Strickland.” According to the complaint, upon the defendants’ instruction, “the police arrested [Mr. Strickland], put him in handcuffs[,] and detained him in a police car.” Mr. Strickland alleged that his arrest was unlawful and that the “[defendants in instructing the police to arrest [Mr. Strickland] knew that his arrest was unlawful and unwarranted.”

Mr. Moyles, Coastal, and Mr. Cooperi-der took Mr. Strickland’s deposition and filed the deposition in support of their motion for summary judgment. At the hearing on the motion, they argued that Mr. Strickland’s brief detention was under color of law and thus could not be “false,” that there was no evidence that their actions were in bad faith, and that none of them had instructed the police to arrest Mr. Strickland. Accordingly, they concluded that Mr. Strickland could not establish the elements of his claim.

At the conclusion of the hearing, the circuit court ruled as follows:

[A]s to Defendants Moyles and Jacobs, as trustee of' Coastal Land Trust, that the defendants have met their burden of proof. The court finds there is no genuine issue of material fact and there is nothing in the record that’s been pointed out to the court that would indicate that there is any genuine issue of material fact that either of those defendants procured the arrest of [Mr. Strickland]— and it’s already been stipulated that there is no indication that any defendant instructed the police to arrest [Mr. Strickland]. So I’m going to grant the Motion for Summary Judgement as to Moyles and Jacobs as trustee of Coastal.
Now, as to Mr. Cooperider, the court agrees according to the argument of both sides that there is nothing in the record that shows that Mr. Cooperider instructed the police to arrest [Mr. Strickland;] however, counsel for [Mr. Strickland] has requested an amendment to the pleadings to conform with the evidence, and this court will allow that amendment to delete the word instruct and to interlinéate the word procured[.] ...
... On that basis and on the court’s granting of that, the court finds that there is a genuine issue of material fact as to whether Mr. Cooperider, based on the information that he provided to the police, in some way procured the arrest of [Mr. Strickland], the court finds that to be a question for the jury to determine, and, therefore, I’ll deny the Motion for Summary Judgement as to Mr. Cooperider.

Before the conclusion of the hearing, Mr. Strickland’s counsel observed that the complaint sought to hold Coastal vicariously liable for the actions of Mr. Moyles and Mr. Cooperider. Accordingly, because there was an issue of fact remaining concerning Mr. Cooperider’s liability, summary judgment should not be granted in favor of Coastal. In response, the defendants’ counsel argued that Mr. Strickland had merely alleged a one-count complaint against all three defendants and that no claim based on vicarious liability had been pleaded. The circuit court ruled that no claim for vicarious liability had been pleaded in the complaint and adhered to its earlier ruling. After the hearing, the circuit court entered an order denying the motion for summary judgment as to Mr. Cooperider and entered a final summary judgment in favor of Mr. Moyles and Coastal. This appeal followed.

II. DISCUSSION

We affirm the circuit court’s grant of a summary final judgment in favor of Mr. Moyles without further comment. Coastal could only be held liable to Mr. Strickland — if at all — based upon its alleged vicarious liability for the actions of its employees, Mr. Moyles and Mr. Cooperider. As Mr. Strickland’s counsel argued at the hearing in the circuit court, if a genuine issue of fact remained concerning the claim against Mr. Cooperider, then a claim for vicarious liability against his employer, Coastal, had continued vitality. See Ruiz v. Aerorep Group Corp., 941 So.2d 505, 507 (Fla. 3d DCA 2006) (“An employer is responsible for an intentional tort committed by an employee if the employee committed the tort while acting within the course and scope of his employment, with the purpose of benefiting the interests of the employer.”). We conclude that because the complaint stated a claim against Coastal for vicarious liability based on the conduct of its employee, Mr. Cooperider, the circuit court erred in granting a summary judgment in favor of Coastal.

The complaint alleges a single claim against all three defendants for false imprisonment or false arrest. The complaint does not contain a separate count for vicarious liability against Coastal for the actions of Mr. Moyles or Mr. Cooperi-der. In addition, although the complaint alleges that Mr. Moyles and Mr. Cooperi-der were acting within the scope of their employment with Coastal, it does not further describe the nature of their relationship to Coastal. The complaint also fails to allege directly that Coastal is vicariously liable to Mr. Strickland for the conduct of its employees.

On the other hand, the complaint clearly identifies Coastal as a party defendant, and under the facts alleged, vicarious liability for the alleged conduct of Mr. Moyles and Mr. Cooperider is the only possible theory of relief against it. Although the complaint was inartfully drafted, we conclude that the complaint’s allegations are barely sufficient to state a claim against Coastal for vicarious liability for the conduct of Mr. Moyles and Mr. Cooperider. The complaint clearly states that Mr. Moyles and Mr. Cooperider committed the alleged tortious acts within the course and scope of their employment by Coastal. To the extent that Mr. Moyles and Mr. Cooperider actually solicited police involvement to prevent the removal of the equipment from the premises owned by Coastal, one might reasonably infer that they were acting to further the interests of their employer rather than any personal agenda. Thus the vicarious liability of Coastal for the actions of its employees was implicated. See Lay v. Roux Labs., Inc., 379 So.2d 451, 453 (Fla. 1st DCA 1980).

We affirm the summary judgment in favor of Mr. Moyles. Because the complaint alleged a claim for vicarious liability against Coastal based upon the conduct of Mr. Cooperider and because the circuit court found that there remained genuine issues of material fact about whether Mr. Cooperider’s conduct constituted the tort of false arrest or imprisonment, we reverse the summary judgment in favor of Coastal, and we remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

WHATLEY and VILLANTI, JJ., Concur.

      . This court has recently distinguished the tort of false arrest from the tort of false imprisonment. Mathis v. Coats, 24 So.3d 1284, 1289 (Fla. 2d DCA 2010) (“False arrest and false imprisonment are closely related, but false imprisonment is a broader common law tort; false arrest is only one of several methods of committing false imprisonment.”). Other courts have taken a different view. See, e.g., Andrews v. Fla. Parole Comm'n, 768 So.2d 1257, 1266 (Fla. 1st DCA 2000) ("[FJalse imprisonment and false arrest are essentially the same tort[.]”); Weissman v. K-Mart Corp., 396 So.2d 1164, 1165 n. 1 (Fla. 3d DCA 1981) (“False arrest and false imprisonment are different labels for the same cause of action.”). See generally 32 Am.Jur.2d False Imprisonment § 3 (2007) (discussing the distinction between false imprisonment and false arrest). The distinction between these two torts — or the lack of one — is not pertinent to our disposition of this case.

      . We note that Mr. Strickland’s current counsel did not represent him when the complaint was prepared and filed.


text:
    AMERISURE INSURANCE COMPANY, a Michigan Insurance Company, Appellant, v. JOHNSON-GRAHAM-MALONE, INC., a Florida corporation, Appellee.
    No. 1D11-2815.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Andrew F. Russo of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant.
    Robert Buesing of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa; Mark A. Boyle, Sr., and Debbie Sines Crockett of Boyles, Gentile, Leonard & Crockett, P.A., Ft. Myers, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 16, 2011, the Court has determined that the order on appeal does not fall within the scope of Florida Rule of Appellate Procedure 9.110(m). See Mercury Ins. Co. of Florida v. Markham, 938 So.2d 607, 609 (Fla. 1st DCA 2006). Accordingly, the appeal is dismissed. The appellee’s Motion to Dismiss Appeal for Lack of Jurisdiction and Motion for Attorneys’ Fees & Costs, both filed on June 22, 2011, are denied.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Craig BARKSDALE, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D10-6602, 1D10-6615.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Dixie Daimwood and Donna A. Gerace,• Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

In these consolidated appeals, we affirm the revocation of appellant’s probation except as it relates to the charge of battery in case number 2007-CF-2931. The state correctly concedes that appellant had served the maximum probationary term on the battery charge before the filing of the probation violation affidavit, depriving the trial court of jurisdiction to revoke appellant’s probation on that charge. See Miller v. State, 13 So.3d 174 (Fla. 2d DCA 2009); McAvoy v. State, 760 So.2d 1120 (Fla. 4th DCA 2000). Accordingly, we reverse the revocation of appellant’s probation for battery in case number 2007-CF-2931 and remand with directions that the trial court vacate the revocation order and sentence as to that charge.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

HAWKES, CLARK, and SWANSON, JJ., concur.


author: BLANC, PETER D., Associate Judge.

text:
    Hakim ELGHOMARI, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2597.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

BLANC, PETER D., Associate Judge.

We grant Hakim Elghomari’s motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

Hakim Elghomari appeals his convictions of three counts of sexual battery and two counts of lewd molestation. Elgho-mari argues that the trial court erred by: (1) admitting child hearsay statements; (2) determining that the state did not commit a discovery violation; (3) permitting the state to present charges which invited a non-unanimous verdict; and (4) admitting testimony about changes in Elghomari’s sexual relationship with the victim’s mother. We affirm.

BACKGROUND

Elghomari was charged by information with three counts of sexual battery and two counts of lewd molestation for offenses committed against his girlfriend’s daughter, who was seven years old. All offenses were alleged to have occurred between May 1, 2007 and June 21, 2007. On June 20, 2007, the victim’s day care provider informed the victim’s mother that the victim had told other children at the day care that Elghomari was abusing her. That night, the mother questioned the victim, but the victim denied the abuse. When the mother confronted Elghomari, he also denied abusing the victim. Elghomari brought the victim to the police station, where she spoke with three male officers. The victim told the officers that she had lied when she stated at day care that Elghomari had abused her, and explained that he only gave her “wedgies” and spanked her when she misbehaved.

On June 22, 2007, Detective Lisa Martin of the Davie Police Department conducted a videotaped interview with the victim at the police station. In the car on the way to the police station, the victim told Detective Martin that she understood the difference between the truth and a lie and a good touch and a bad touch. During the interview, the victim explained the vaginal, anal, and oral sexual abuse and molestation by Elghomari with the aid of a body diagram. The victim told Detective Martin that she had pain in her bottom and pain when she urinated. The victim also explained that she had lied during her previous statement to police because she did not want Elghomari to go to jail. After the interview, Detective Martin took the victim to the Sexual Assault Treatment Center. The nurse practitioner who examined the victim testified at trial that she found no evidence of hymenal injury and no injury around the anal area other than redness. She also explained that the lack of injury did not mean that sexual abuse did not occur.

At trial, the victim’s testimony about the sexual abuse was similar to the information which she had provided to Detective Martin. However, in support of the two counts of lewd molestation, she also testified that Elghomari molested her during two additional encounters when he forced her to touch his genitals and he sucked on her breasts. The jury found Elghomari guilty on all counts, and the trial court sentenced him to concurrent terms of life imprisonment.

CHILD HEARSAY STATEMENTS

Elghomari first argues that the trial court erred by admitting a child hearsay statement by the victim pursuant to section 90.803(23), Florida Statutes (2009). He contends that the trial court’s factual findings were inadequate and that the victim’s hearsay statement did not possess the necessary degree of reliability. We review both a trial court’s determination that a statement is reliable under section 90.803(23) and the sufficiency of the trial court’s findings of fact for an abuse of discretion. Ferreiro v. State, 936 So.2d 1140, 1142 (Fla. 3d DCA 2006) (citing Perez v. State, 536 So.2d 206 (Fla.1988)); Ingrassia v. State, 747 So.2d 445, 447 (Fla. 4th DCA 1999).

Section 90.803(23), Florida Statutes, the child sexual abuse hearsay exception, provides:

Hearsay exception; statement of child victim.—
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
2. The child ...
a. Testifies.

In State v. Townsend, 635 So.2d 949 (Fla.1994), the supreme court analyzed the statute and explained that the exception requires that: (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability. Id. at 954. In addition, the supreme court established a nonexclusive list of factors for the trial court to consider in evaluating the reliability of a child’s out-of-court statement under the statute:

the statement’s spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation.

Id. at 957-58; see also Mikler v. State, 829 So.2d 932, 935 (Fla. 4th DCA 2002). Additionally, once the trial court reviews the trustworthiness and reliability of the statement, section 90.803(23)(c) expressly requires that the court “make specific findings of fact, on the record, as to the basis for its ruling.”

In the instant case, the state filed a notice of intent to introduce at trial the child hearsay statement which the victim made to Detective Martin. After a hearing, the trial court entered a thoughtful and detailed order granting the state’s motion. In the order, the trial court stated that it heard testimony by Detective Martin and reviewed the video recording of the victim’s statement to Detective Martin and the sworn statement by the victim’s mother before determining that the victim’s statement was trustworthy and reliable. The trial court made several specific findings, including that the victim “understands the difference between the truth and a lie, right and wrong,” the “child’s description of events [was] in response to generally open ended, non leading questions,” and the “child’s description of the incidents utilized age appropriate language but was significantly detailed and provided specific information that would not otherwise be available to a typical seven (7) year old concerning sex acts and bodily fluids.” The trial court weighed this evidence against the victim’s initial statements to police and to her mother that Elghomari did not abuse her. However, it determined that “those statements were made at times when the Defendant was either present or nearby.” Thus, the record shows the trial court made all requisite findings of reliability under section 90.803(23) and set them out in detail, satisfying subsection (c). Because the trial court complied with the statute and we find no basis for rejecting its conclusions, we affirm its determination regarding the admissibility of the child hearsay statement.

DISCOVERY VIOLATIONS

Elghomari also argues that the trial court erred when it determined that the state’s failure to disclose a material change in the victim’s testimony was not a discovery violation. The Florida Rules of Criminal Procedure codify the state’s obligation to provide discovery to a defendant in a criminal case. These discovery rules are designed to prevent surprise and to facilitate a “ ‘truthful fact-finding process.’ ” Scipio v. State, 928 So.2d 1138, 1144 (Fla.2006) (quoting Kilpatrick v. State, 376 So.2d 386, 388 (Fla.1979)). The chief purpose of such discovery is to prevent “ ‘trial by ambush.’ ” Bell v. State, 930 So.2d 779, 785 (Fla. 4th DCA 2006) (citation omitted).

In particular, Florida Rule of Criminal Procedure 3.220(b)(1)(B) requires the state to disclose to the defendant “the statement of any person” who is a witness pursuant to Rule 3.220(b)(1)(A). The type of “statement” that must be disclosed by the state

includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term “statement” is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled[.]

Fla. R.Crim. P. 3.220(b)(1)(B). Based upon the plain language of the rule, the state is not required to disclose unrecorded oral statements. Moreover, the supreme court, in State v. McFadden, 50 So.3d 1131, 1133 (Fla.2010), clarified that the state is not required to disclose to the defendant a witness’s oral statement if the statement has not been reduced to writing or recorded in a manner prescribed by Rule 3.220(b)(1)(B). The supreme court, however, recognized the exception that the state must disclose an “ ‘oral statement [that] materially alters a prior written or recorded statement previously provided by the State to the defendant.’ ” Id. (quoting State v. Evans, 770 So.2d 1174, 1180 (Fla.2000)).

In the instant case, Elghomari claims that the state committed a discovery violation when it described during its opening statement two incidents of molestation that, although charged in the information, were not previously referenced or identified in the victim’s statements provided as part of the discovery process. The victim also testified about these two incidents at trial when she described that Elghomari molested her by forcing her to touch his genitals and by sucking on her breasts. The incidents were not discussed in the videotaped interview by Detective Martin or referenced in Detective Martin’s written report. Elghomari claims that his counsel relied only upon the interview and the written report to prepare for the victim’s deposition. Therefore, during the deposition, Elghomari’s counsel did not specifically question the victim about the molestation. Elghomari claims that the victim should have disclosed the molestation in response to the following three questions: (1) “Was there ever any other time where he touched you with his private or put his private on you or in you?”; (2) “So that was it?”; and (3) “Anything else you want to tell me?” The state responds that it did not commit a discovery violation because the victim’s statement about the molestation was oral and unrecorded and her answers to the above three questions did not materially alter her previous statements. The state also argues that Elghomari was not surprised at trial because the information expressly charged him with two counts of lewd molestation for touching the victim’s breast (Count IV) and for forcing the victim to touch his genitals (Count V). The information was filed well before the victim’s deposition and defense counsel had the opportunity to ask specific questions about those two counts.

We agree with the state that the trial court sufficiently inquired into the alleged discovery violation and concluded that no violation occurred. The record reflects that the victim revealed the two incidents of molestation at a pre-filing conference and that the victim’s statement was oral, not written or recorded. Even the defense attorney acknowledged that the only way for the state to inform Elghomari about the unrecorded statement would be the following: “They can write a memo.... They could pick up the phone and call me. They can send an email.” Such a process would be unnecessary if the state had in its possession a written or recorded statement.

Elghomari further claims that the trial court erred by not inquiring specifically of Detective Martin regarding the potential existence of an undisclosed written or a recorded statement and relies upon Giles v. State, 916 So.2d 55 (Fla. 2d DCA 2005). However, the facts of Giles are distinguishable from the instant case. In Giles, the prosecutor never affirmatively stated that there was no such written or recorded statement, only that, “the State didn’t have access to that information.” Id. at 57. The trial court’s inquiry confirmed simply that the prosecutor had no knowledge of the existence of the written report, not that any written or recorded version of the report did or did not exist. Id. Here, the prosecutor was aware of the statement, referenced the molestation in opening statement, and affirmatively asserted that the statement was not written or recorded. The defense attorney accepted the prosecutor’s assertion that the statement was not written or recorded and acknowledged the difficulties in disclosing the unrecorded statement. Because the trial court’s inquiry directly addressed whether the statement was written or recorded, the instant case is unlike the inquiry in Giles, which merely focused on the prosecutor’s awareness of the written report.

Additionally, the limited exception described by the supreme court in McFad den does not apply to this case. The victim’s failure to mention the two incidents in response to defense counsel’s open-ended deposition questions did not amount to a material change in testimony from the videotaped interview with Detective Martin, Detective Martin’s report, or the victim’s deposition. Because the victim’s unrecorded statement did not materially change her previous testimony, the trial court ended the inquiry and properly concluded that the state was not required to produce the statement to Elghomari. See McFadden, 50 So.3d at 1133 (“no discovery violation occurred here; therefore, there was no need for the trial court to conduct a Richardson [v. State, 246 So.2d 771 (Fla.1971) ] hearing”). Moreover, El-ghomari was put on notice of the molestation by virtue of the allegations within Counts IV and V of the information. It may have been a better practice for the state to indicate during the deposition that defense counsel had overlooked the molestation in Counts IV and V, but its failure to do so does not amount to a discovery violation. Accordingly, the trial court did not err in determining that the state did not commit a discovery violation under these circumstances. Having determined no discovery violation occurred, we do not address the state’s claim that the victim’s statements at the pre-filing conference constitute work product.

NON-UNANIMOUS VERDICTS

Elghomari next claims that the trial court improperly allowed the state to present charges which created the possibility of a non-unanimous jury verdict. Specifically, he alleges that because several counts submitted to the jury were each supported by more than one criminal episode, the jury verdict could be non-unanimous. He also complains that the state further invited a non-unanimous verdict during closing by stating that “even though he put his penis in her vagina more than one time, it’s only charged once, because it’s on one or more occasion. So if you find it happened either the first time, or ... the second time, or ... both, same verdict, guilty.” Elghomari raises this issue as a fundamental error, as he did not object to the charging document or the state’s closing argument. However, the error was not fundamental, and any objection should have been raised at trial. Whittingham v. State, 974 So.2d 616 (Fla. 4th DCA 2008) (holding that the state’s submission to the jury of several counts which included multiple, distinct acts of sexual abuse against a child did not constitute fundamental error and recognizing that, in a sexual abuse case, the state may charge a defendant in a manner not permitted in other types of criminal cases, including the expansion of time periods of the offenses and the grouping together of types of offenses).

TESTIMONY BY VICTIM’S MOTHER

Finally, we find that the trial court abused its discretion in admitting the irrelevant testimony by the victim’s mother regarding the weakening of her sexual relationship with Elghomari around the time he abused the victim. Nevertheless, the testimony was an insignificant part of the trial and the state made only brief, isolated references to the testimony during closing argument. Therefore, we find that there is no reasonable possibility that the mother’s testimony contributed to the verdict, and the admission of the testimony was harmless error. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986); see also Ventura v. State, 29 So.3d 1086, 1090-91 (Fla.2010).

Affirmed.

TAYLOR and CIKLIN, JJ., concur.

      . We reject the state’s position that Elgho-mari did not preserve this issue for review because he failed to object to the lack of specific findings concerning the reliability of the child hearsay statement. See Hopkins v. State, 632 So.2d 1372, 1376 (Fla.1994) (holding that defense counsel’s general objection to the reliability of child hearsay statements necessarily encompassed the sufficiency of the trial court’s findings as to that reliability under section 90.803(23) and that defense counsel was not required to specify each finding of fact to which he was objecting); see also Heuss v. State, 660 So.2d 1052, 1056 (Fla. 4th DCA 1995). We also reject the state’s request to certify conflict with Elwell v. State, 954 So.2d 104 (Fla. 2d DCA 2007).


author: GROSS, J.

text:
    Chance Jawwun JOE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-233.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON MOTION FOR REHEARING

GROSS, J.

We deny Chance Joe’s motion for rehearing, but withdraw our previously issued opinion of May 25, 2011, and substitute the following in its place.

Joe appeals his conviction for robbery with a deadly weapon. He argues that the trial court erred in denying his motion to suppress a recorded statement. We affirm the conviction and reject Joe’s argument that he invoked his right to remain silent after hearing Miranda warnings.

I. FACTS

At the beginning of his post-arrest interrogation, the following exchange between a detective and Joe occurred:

DETECTIVE: Anybody read you your rights yet?
JOE: Huh?
DETECTIVE: You have been read your rights? You want me to read them to you again? You understand them? All right. So I’ll just review them to you real quick. You understand you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to an attorney, have one present with you during questioning. If you cannot afford to hire an attorney, one will be appointed to represent you before questioning if you wish one. Do you understand your rights? All right. With your rights in mind, are you willing to answer any questions right now and talk with me at all about what happened on the, I don’t have the exact dates, but the incident that the, well, the night you got shot?
JOE: Yeah. I ain’t got nothing to say. I didn’t, I don’t even know what happened. I got shot I mean, you know what I’m saying.
DETECTIVE: Well, I know you got shot. I mean no, we’ve been looking for you since, since you checked yourself out of the hospital. You got to know that; right?
JOE: I’m saying but I checked myself back into the hospital too.

Joe continued to talk to the detective and made incriminating statements. Audio of the interrogation was digitally recorded. The recording was admitted at the suppression hearing and is included in the record on appeal. The detective testified at the hearing that Joe indicated he wanted to continue.

Below, Joe argued that he had unequivocally invoked his Miranda right to remain silent when advised of that right by the detective, but the detective ignored the invocation. The state responded that, in context, Joe was stating that he had nothing to say because, beyond getting shot, he did not know what happened. The trial court agreed with the state and denied Joe’s motion.

II. ANALYSIS

On appeal, Joe contends that the trial court should have suppressed the statement. He characterizes his statement — “I ain’t got nothing to say.” — as an unequivocal expression of his wish to remain silent or, at the least, an equivocal one that the detective needed to clarify before continuing the interrogation. We disagree.

A.Standard of Review

The voluntariness of a confession is a mixed question of law and fact. Donovan v. State, 417 So.2d 674, 676 (Fla.1982), receded from on other grounds by State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Whitfield, v. State, 479 So.2d 208, 213 (Fla. 4th DCA 1985). “[M]ixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Con-nor v. State, 803 So.2d 598, 605 (Fla.2001) (citations omitted). “However, this deference to the trial court’s findings of fact does not fully apply when the findings are based on evidence other than live testimony,” since such evidence is as available to the appellate court as it was to the trial court. Parker v. State, 873 So.2d 270, 279 (Fla.2004) (citation omitted).

B.Applicable Law

“Both the United States and Florida Constitutions provide that persons shall not be ‘compelled’ to be witnesses against themselves in any criminal matter.” Ross v. State, 45 So.3d 403, 412 (Fla.2010) (citing U.S. Const. amend. V; art. I, § 9, Fla. Const.). This right against self-inerimination is given effect through a person’s right to remain silent. Miranda v. Arizona, 384 U.S. 436, 467-69, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Miranda holds that “[t]he defendant may waive effectuation of [the right], provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444, 86 S.Ct. 1602. Waiver may be express or implied. See N. Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). If at the beginning of an interrogation the defendant attempts to invoke his rights rather than waive them, and the invocation is equivocal or ambiguous, the police must seek clarification before proceeding further; equivocation and ambiguity may cast doubt on the voluntary, knowing, and intelligent nature of a purported waiver and subsequent confession. See Alvarez v. State, 15 So.3d 738, 745 (Fla. 4th DCA 2009), rev. denied, 26 So.3d 581 (Fla.2010). This rule stands in contrast to the rule for post-waiver invocations of Miranda rights: after a prior voluntary, knowing, and intelligent waiver, the police do not have to stop an interrogation and clarify equivocal or ambiguous invocations of Fifth Amendment rights. See State v. Owen (Owen II), 696 So.2d 715 (Fla.1997).

C.Cuervo v. State and Almeida v. State

Urging error, Joe relies on Cuervo v. State, 967 So.2d 155 (Fla.2007). While that initial waiver case is similar to the instant one in many respects, it is nonetheless distinguishable. In Cuervo, the Spanish-speaking defendant was interviewed by an English-speaking investigator through a Spanish-speaking officer acting as an interpreter. Id. at 157. The interpreter read the defendant “all of his [Miranda ] rights” and then asked the defendant whether he understood those rights. Id. The defendant responded in the affirmative. Id. But, when asked if he wanted to talk about the matter for which he was arrested, the • defendant replied, in Spanish, “No quiero declarar nada.” Id. That statement translates to “I don’t want to declare anything.” Id. The interpreter confirmed this with the defendant and reported the response to the investigator: “He does not wish to talk with us.” Id. The investigator nonetheless continued with the interrogation. Id. at 157-58.

The Florida Supreme Court held that, in its context, the statement “constituted a clear invocation of the right to remain silent,” and the interpreter’s translation for the investigator indicated he and the investigator understood it as such. Id. at 163. The court looked to other decisions and concluded that “similar responses [have] constituted an exercise of the right under Miranda to terminate the interrogation.” Id. (citing Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Moore v. State, 798 So.2d 50, 52 (Fla. 1st DCA 2001); Dooley v. State, 743 So.2d 65, 68 (Fla. 4th DCA 1999); Segarra v. State, 596 So.2d 740, 741 n. 1 (Fla. 2d DCA 1992)). In distinguishing another case, State v. Owen (Owen II), 696 So.2d 715 (Fla.1997), the Cuervo court wrote that “[t]he statements in Owen were made during the course of an interrogation and not given in response to a specific question regarding whether the defendant wanted to give a statement or talk after he was read his Miranda rights.” Id.

Like the statement in Cuervo, the statement on which Joe relies was made at the beginning of the interrogation and in response to a specific question on whether Joe wanted to give a statement after being apprised of his Miranda rights. But the similarities end there. Joe said, ‘Neah. I ain’t got nothing to say. I didn’t, I don’t even know what happened. I got shot I mean, you know what I’m saying.” Contrary to Joe’s characterization that this was an unequivocal or at least equivocal invocation of his right to silence — a characterization that focuses on only one sentence — the whole statement amounts to an unequivocal expression of Joe’s willingness to talk. Joe immediately answered “Yeah” — he was willing to answer questions. And, by the second sentence, Joe was not saying he did not want to talk but that, because he was shot, he did not know what happened and, thus, had nothing to say. Our review of the audio recording confirms this view; in the recording, Joe’s tone was casual and engaging.

Almeida v. State, 737 So.2d 520 (Fla.1999), is likewise unavailing. There, in the context of apprising a defendant of his Miranda rights, the interrogating officer asked the defendant, “Do you wish to speak to me now without an attorney present?” Id. at 522. The defendant “paused for many seconds (about 5 seconds on the tape), and made a pensive, probing response: “Well ... [pause] ... what ... [another pause] ... good is an attorney going to do?’ ” Id. at 524. The Supreme Court found this to be “a genuine question” to which the defendant “was seeking a frank answer.” Id. (emphasis in original). Ignoring the question, the officer continued interrogating the defendant, eliciting incriminating statements. See id.

The court distinguished this scenario from an equivocal statement after a defendant’s clear waiver of rights; per Owen II, such a statement, occurring during an interrogation, would not require police to stop and clarify. Id. The Almeida defendant had, however, asked “an un equivocal question that was prefatory to — and possibly determinative of — the invoking of a right and which cast doubt on the knowing and intelligent nature of the prior waiver.” Id. (emphasis in original). The court held “that if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer.” Id. at 525. Connecting the “twin rulings” of Owen and Almeida, the court wrote “that police must honor a clear statement invoking a suspect’s rights,” and “police similarly must answer a clear question concerning a suspect’s rights.” Id. at 525-26. Here, Joe asked no clear question concerning a right; thus, his statement cast no doubt on his waiver within the meaning of Almeida.

In sum, Joe’s statement in context establishes a waiver, and not an invocation, of his right to silence. The trial court did not err in denying his motion to suppress the ensuing, recorded statement.

Affirmed.

HAZOURI and CIKLIN, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    In re Walter HUNTER, Jr.
    No. 2011-OB-1009.
    Supreme Court of Louisiana.
    June 21, 2011.
   ORDER

| lUpon review of the findings and recommendation of the disciplinary board, and considering the record filed herein,

IT IS ORDERED that the probation imposed upon respondent, Walter Hunter Jr., Louisiana Bar Roll number 24466, in In re: Hunter, 05-1497 (La.6/23/05), 905 So.2d 286, be and hereby is revoked. It is further ordered that respondent be transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Jeannette T. Knoll JUSTICE, SUPREME COURT OF LOUISIANA


text:
    In re Benjamin D. JAMES, II.
    No. 2011-OB-1131.
    Supreme Court of Louisiana.
    June 22, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

hOn his application to sit for the Louisiana Bar Examination, petitioner, Benjamin D. James, II, disclosed that he has been diagnosed as alcohol dependent and opioid dependent. After petitioner successfully passed the bar exam, he filed a petition seeking admission to the bar, in which it was represented that petitioner has maintained sobriety since 2005. Nevertheless, petitioner acknowledged that he did not execute a recovery agreement with the Lawyers Assistance Program (LAP) until May 31, 2011.

Our jurisprudence holds that an applicant suffering from substance dependence will not be considered for admission until he or she has demonstrated at least a one-year period of sobriety, has entered into a recovery contract with LAP, and has complied with the terms and conditions of that contract. See, e.g., In re: Basinger, 10-2355 (La.12/17/10), 50 So.3d 157 (“[o]ur jurisprudence holds that an applicant suffering from alcohol dependence will not be considered for admission until he or she has entered into a recovery contract with LAP and can demonstrate at least a one-year period of sobriety pursuant to the terms and conditions of that contract”); In re: Gulick, 09-0869 (La.5/15/09), 8 So.3d 555 (“[pjursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and 1 ¡.conditions of his contract with the Lawyers Assistance Program, and in no event less than one year from the date of this judgment”). Because petitioner has not satisfied these requirements, he is not eligible for admission at this time.

Accordingly, it is ordered that the application for admission be and hereby is denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of his contract with the Lawyers Assistance Program.

ADMISSION DENIED.

       Chief Justice Kimball not participating in the opinion.

      . We acknowledge petitioner has produced documentation of his sobriety covering the period from 2005 to 2007. However, the time period after 2007 is merely supported by the anecdotal evidence we rejected in In re: Gray, 11-0847 (La.5/4/11), 60 So.3d 605.


text:
    In re Chadwick S. PRICE.
    No. 2011-OB-1098.
    Supreme Court of Louisiana.
    June 22, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Chadwick S. Price, successfully passed the February 2011 Louisiana bar examination. By letter dated April 29, 2011, the Committee on Bar Admissions (“Committee”) advised petitioner that it could not certify his character and fitness to this court, citing issues relating to his diagnosed alcohol abuse and possible dependency. Petitioner then applied to this court for the appointment of a commissioner. The Committee opposed the petition, asserting that petitioner has not executed a recovery agreement with the Lawyers Assistance Program (LAP), nor has he complied with the recommendation of a LAP evaluator that he enroll in an intensive outpatient treatment program (IOP).

We find no useful purpose would be served by appointing a commissioner under these facts. In cases involving a diagnosis of alcohol abuse, the court has adopted a policy that the applicant sign a LAP contract prior to seeking admission, and comply with any other treatment recommendations made by the LAP evaluator. See, e.g., In re: Poche, 10-1311 (La.6/30/10), 39 So.3d 583 (“Granted. Petitioner is allowed to take the Louisiana State Bar Examination. However, petitioner shall not be considered for admission to the bar until he can demonstrate compliance with the requirements imposed upon him by the Committee on Bar Admissions and the Director of the Lawyers Assistance Program, including, but not limited to, execution [ ¡¡of the recommended Recovery Agreement.”). Here, it was recommended that petitioner enroll in an IOP and sign a LAP contract; however, he has done neither. Therefore, he is not eligible for admission at this time.

Accordingly, it is ordered that the application for admission be and hereby is denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until he has demonstrated compliance with the requirements imposed upon him by the Committee on Bar Admissions and the Lawyers Assistance Program, including, but not limited to, enrollment in an intensive outpatient treatment program and execution of the recommended LAP agreement.

ADMISSION DENIED.

       Chief Justice Kimball not participating in the opinion.


author: PER CURIAM

text:
    In re Roberto COSTALES.
    No. 2011-OB-1042.
    Supreme Court of Louisiana.
    June 24, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM

|After reviewing the evidence and considering the law, we conclude petitioner, Roberto Costales, is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Hazel Ann COLEMAN.
    No. 2011-B-1083.
    Supreme Court of Louisiana.
    June 24, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent maintained incomplete records of her client trust account, which resulted in a negligent commingling and conversion of funds. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Hazel Ann Coleman, Louisiana Bar Roll number 28327, be suspended from the practice of law for a period of one year and one day, fully deferred, subject to a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


author:
      PER CURIAM.

      JOHNSON, J., dissents

text:
    STATE of Louisiana v. Derrick KIRTON, et al.
    No. 2011-KK-1201.
    Supreme Court of Louisiana.
    June 24, 2011.
   PER CURIAM.

|Granted. The ruling of the trial court granting the motion to suppress and finding no probable cause is reversed, and this case is remanded for further proceedings.

In determining whether reasonable suspicion exists to conduct an investigatory stop, courts must take into account the totality of the circumstances in a process that allows police to draw upon their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might elude an untrained person. State v. Fearheiley, 08-0307, p. 1 (La.4/18/08), 979 So.2d 487, 488. Here, the observations of the detective (defendant’s presence in the parking lot of a location known for drug transactions, repeatedly using her cell phone and looking about anxiously, driving to a location a block- and-a-half away, pulling up behind a parked vehicle, exiting her vehicle and entering the parked vehicle occupied by a lone male, and remaining in that vehicle for less than a minute before returning to her vehicle while the other vehicle immediately drove away) coupled with his ten years of experience as a narcotics officer, provided minimal objective and particularized justification for approaching the defendant in her parked [ {.vehicle. Defendant’s reaction to that approach — panic and a furtive movement with her right hand in between the driver’s seat and console — together with the facts already known to the detective, supplied probable cause for the ensuing warrantless search under the automobile exception to the warrant requirement. See, State v. Carey, 03-0067 (La.App. 4 Cir. 5/7/03), 847 So.2d 680.

JOHNSON, J., dissents from the PER CURIAM and assigns reasons.

JOHNSON, J., dissents

from the PER CURIAM and assigns reasons.

hi would deny the State’s writ application because, in my view the defendant was subjected to an illegal investigatory stop by a New Orleans Police Officer. The defendant did not present any behavior suspicious of criminal activity to warrant an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The threshold issue to be determined in the instant case is whether the officer who conducted the investigatory stop had reasonable suspicion of criminal activity. La.C.Cr.P. art. 215.1(A) provides that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

Citing State v. Fearheiley, 08-0307, at p. 1 (La.4/18/08), 979 So.2d 487, 488, the majority notes that when “determining whether reasonable suspicion exists to conduct an investigatory stop, courts must take into account the totality of the circumstances in a process that allows police to draw upon their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might elude an untrained person.” Absent from the per curiam’s analysis is the fact that the Fearheiley case, unlike the case at bar, Jjinvolved a police officer’s observation of suspicious activity, namely, two parties conducting an apparent hand-to-hand transaction. In the instant case, the detective did not observe any criminal activity. Here, the defendant was merely in the parking lot, of a fast food store, using her cell phone. She drove to another location a block and a half away and pulled up behind a parked vehicle. She then exited her vehicle and entered a parked vehicle which had one male occupant. She sat in the parked vehicle briefly before she returned to her vehicle. These facts, even in light of the officer’s ten years experience as a narcotics officer, and his claim that the area was known for drug activity, do not provide minimal objective and particularized justification for approaching the defendant in her parked vehicle, and conducting what amounted to an investigatory stop.

In a 115 page Report on an Investigation of the New Orleans Police Department, conducted by the United States Department of Justice, Civil Rights Division, The Justice Department found that “the New Orleans Police Department engages in a pattern of stops, searches, and arrests that violate the Fourth Amendment. Detentions without reasonable suspicions are routine, and lead to unwarranted searches and arrests without probable cause.” Their review of 145 randomly-sampled arrest and investigative reports confirmed a pattern of unlawful conduct, not different from the arrest herein.

      . Kimball, C.J., not participating in the decision.

      . In making this observation, we do not mean to suggest that the objectively reasonable suspicion necessary for a Terry stop was required for the detective to approach the defendant in her parked vehicle. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "[M]ere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention.” State v. Fisher, 97-1133, pp. 4-5 (La.9/9/98), 720 So.2d 1179, 1183. We simply observe that based on the totality of facts and circumstances known to Detective Rocco-forte and his experience in the field of narcotics investigations, there was at least objectively reasonable suspicion of criminal activity when the approach to the car was made.

      . In Terry v. Ohio, the United States Supreme Court first recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880.

      . Investigation of the New Orleans Police Department, U.S. Department of Justice, Civil Rights Division, (March 16, 2011). A copy can be found on the U.S. Department of Justice website: www.justice.gov/crt/about/spl/ nopd_report.pdf


text:
    In re Henry DILLON, III.
    No. 2011-B-0331.
    Supreme Court of Louisiana.
    July 1, 2011.
    Charles Bennett Plattsmier, Baton Rouge, LA, Robert Samuel Kennedy, Jr., Shreveport, LA, for Applicant.
    Henry Austine Dillon, III, for Respondent.
   PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Henry A. Dillon, III, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Dillon, 06-0083 (La.1/13/06), 918 So.2d 466.

UNDERLYING FACTS

On December 2, 2005, a federal grand jury in New Orleans indicted respondent on two counts of deprivation of rights under color of law, violations of 18 U.S.C. § 242. The indictment alleged that respondent sexually assaulted two women while acting under color of state law as a Deputy City Attorney for the City of New Orleans. Following a jury trial in 2006, respondent was found guilty as charged and sentenced to life imprisonment on each count, to be served concurrently.

DISCIPLINARY PROCEEDINGS

In July 2007, the ODC filed one count of formal charges against respondent, alleging that by his actions as set forth above he has committed a criminal act in violation of Rule 8.4(b) of the Rules of Professional Conduct. On April 22, 2008, the hearing committee entered an order staying the disciplinary matter pending the finality of respondent’s criminal conviction.

On June 20, 2008, the United States Court of Appeals for the Fifth Circuit affirmed respondent’s conviction. United States v. Dillon, 532 F.3d 379 (5th Cir.2008). Respondent failed to timely file a petition for writ of certiorari to the United States Supreme Court. According to respondent, before he could complete his petition for writ of certiorari, the Bureau of Prisons “confiscated” his legal work and transferred him from one prison facility to another. Respondent further contended that his legal papers were not returned to him until after the deadline expired for filing his writ of certiorari. In the interim, respondent filed a motion with the United States Supreme Court seeking an extension of time within which to file his writ of certiorari, in which he explained his situation. This motion was presented to Justice Antonin Sealia and denied on September 15, 2008. In September 2009, respondent filed a motion to set aside his conviction and sentence pursuant to 28 U.S.C. § 2255, asserting, among other issues, that he had been denied access to the courts as a result of the confiscation of his legal papers by corrections officials. To remedy this asserted deprivation of his constitutional rights, respondent argued that the circuit court could recall its mandate to permit him to file a timely petition for certiorari. Respondent’s § 2255 motion remained pending until March 31, 2011, at which time it was denied by the federal district court. United States v. Dillon, 2011 WL 1235157 (E.D.La.2011).

In the meantime, in February 2010, the ODC filed a motion with the disciplinary board seeking to lift the stay of the disciplinary proceeding. By order dated March 4, 2010, the board granted the motion, lifted the stay, and ordered respondent to file an answer to the formal charges by March 24, 2010. Respondent 1,gtimely filed an answer on that date, in which he acknowledged that his conviction, unless reversed, constitutes a criminal act in violation of Rule 8.4(b) of the Rules of Professional Conduct.

Following the filing of respondent’s answer, this matter was set for a formal hearing on the merits on July 9, 2010. On June 7, 2010, respondent’s counsel of record filed a motion to withdraw, asserting that they had reached an “impasse” with respondent with respect to the defense of the formal charges. Respondent objected to the motion. Counsel also sought a continuance of the July hearing date in order to permit respondent sufficient time to prepare for the formal charge hearing. The hearing committee chair granted the continuance on June 15, 2010. On August 6, 2010, the chair signed an order permitting respondent’s counsel of record to ■withdraw.

The matter then proceeded to a formal hearing on September 10, 2010. Respondent was incarcerated on the date of the hearing and thus did not attend in person; however, he did participate by telephone, making two primary arguments to the hearing committee: first, that he has been denied his right to counsel in this matter, and second, that his criminal conviction was not yet final because his § 2255 motion was still pending.

Hearing Committee Report

Following the hearing, the hearing committee issued its report, in which it concluded that respondent’s criminal conviction is conclusive proof that he | committed the essential elements of the offenses charged. Accordingly, the committee found respondent violated Rule 8.4(b) of the Rules of Professional Conduct. Rejecting respondent’s arguments regarding his right to be represented by counsel and the finality of his criminal conviction, the committee recommended respondent be permanently disbarred.

Respondent filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

At the outset, the disciplinary board rejected respondent’s argument that his conviction is not yet final. The board noted that the court of appeals affirmed respondent’s conviction on June 20, 2008, and that he did not file a timely petition for writ of certiorari with the United States Supreme Court; therefore, the board determined respondent’s conviction has become final. The board likewise rejected respondent’s argument that he was prejudiced by the hearing committee’s decision to allow his counsel of record to withdraw from this case prior to the hearing, reasoning that the committee’s ruling was within its discretion.

Turning to the merits of the matter, the board agreed that the certificate of respondent’s conviction provides conclusive evidence of his guilt of the crimes of which he has been convicted. Accordingly, the board found that respondent violated Rule 8.4(b) of the Rules of Professional Conduct as charged. The board determined that respondent intentionally violated duties owed to the public and to the legal system, causing actual injury. The baseline sanction for respondent’s misconduct is disbarment.

15In mitigation, the board acknowledged that respondent has no prior disciplinary record. The board found the following aggravating factors are present: a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law (admitted 1994), and illegal conduct.

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

Respondent filed an objection to the disciplinary board’s report and recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

As a procedural matter, we must first address respondent’s contention that this proceeding is premature because his federal criminal conviction is not yet final. Pursuant to Supreme Court Rule XIX, § 19(E), a conviction becomes final when “all appeals have been concluded or exhausted.” In prior disciplinary matters, we have noted that the lawyer’s conviction became final on direct review upon the conclusion of proceedings in the United States Supreme Court. Nothing in our rules or | ^jurisprudence suggests that habeas proceedings or other proceedings for post-conviction relief affect the finality of the conviction for disciplinary purposes. Indeed, in Louisiana State Bar Ass’n v. Shaheen, 338 So.2d 1347 (La.1976), we expressly rejected such a notion, stating, “The possibility of post-conviction relief through applications for writs of habeas corpus or motions for new trials does not affect the finality of the conviction.”

Here, the United States Court of Appeals for the Fifth Circuit affirmed respondent’s conviction on June 20, 2008. Respondent did not file a petition for a writ of certiorari. The time in which he could have petitioned for certiorari expired on September 18, 2008, ninety days after entry of the judgment of the court of appeals. See United States Supreme Court Rule 13. Accordingly, once the time for filing a petition for writ of certiorari expired, respondent’s conviction became final for purposes of discipline under Supreme Court Rule XIX.

Respondent further argues that he has been unconstitutionally deprived of counsel in these proceedings because the hearing committee permitted his attorneys to withdraw. This argument has no merit. Respondent retained counsel to represent him in this matter, but prior to the completion of the proceedings, his attorneys filed a motion to withdraw, citing irreconcilable differences with their client over the direction of the representation. Counsel also sought a continuance of the formal charge hearing on respondent’s behalf so that he would have adequate time to prepare to represent himself at the hearing. Under the circumstances, we see no prejudice to respondent caused by his counsel’s decision to withdraw.

17Turning to the merits, we have held that when disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Respondent stands convicted of sexually assaulting two women while acting under color of law. This crime is a felony under federal law and clearly warrants serious discipline. Indeed, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct which might be considered worthy of permanent disbarment. For purposes of the instant case, Guidelines 2 and 4 are relevant. Those guidelines provide:

GUIDELINE 2. Intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury.
GUIDELINE 4. Sexual misconduct which results in a felony criminal conviction, such as rape or child molestation.

Here, respondent violated the civil rights of two women by abusing his power as a Deputy City Attorney to commit sexual assaults against them. He was convicted of two felony counts in connection with his sexual misconduct and sentenced to serve life in prison. This conduct clearly falls within the scope of the permanent disbarment guidelines.

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

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Henry A. Dillon, III, Louisiana Bar Roll number 23038, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. 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.

      . In his brief to this court, respondent asserts that he has appealed the district court’s ruling to the United States Court of Appeals for the Fifth Circuit.

      . Respondent subsequently moved to recall the board’s order, arguing that the appeal process was not complete because his § 2255 motion was still pending before the federal district court. The ODC opposed the motion, asserting that such a proceeding does not constitute an “appeal” of a criminal conviction for purposes of Supreme Court Rule XIX. In March 2010, the board denied respondent’s motion to recall the order lifting the stay. Respondent then sought review of the board’s ruling in this court. We denied the application in April 2010. In re: Dillon, 10-0834 (La.4/30/10), 34 So.3d 289.

      . We also note that other penalties and sanctions have been imposed upon respondent in connection with his criminal conviction.

      . In support of the aggravating factors of a pattern of misconduct and multiple offenses, the board relied upon the transcript of the arraignment and detention hearing conducted in federal court on December 12, 2005, shortly after respondent’s arrest. During the hearing, five women, including the two women named in the indictment, testified they had been sexually assaulted by respondent.

      . See In re: Arledge, 10-1014 (La.9/3/10), 42 So.3d 969 ("[t]he conviction became final on April 20, 2009, upon the denial of respondent's petition for writ of certiorari by the United States Supreme Court”); In re: Thomas, 10-0593 (La.6/25/10), 38 So.3d 248 (”[t]he conviction became final on November 30, 2009, upon the denial of respondent’s petition for writ of certiorari by the United States Supreme Court”); In re: Edwards, 04-0290 (La.7/2/04), 879 So.2d 718 ("[t]he conviction became final on February 24, 2003, upon the denial of respondent’s petition for writ of certiorari by the United States Supreme Court”); In re: O'Keefe, 03-3195 (La.7/2/04), 877 So.2d 79 (”[o]n June 11, 2001, the United States Supreme Court denied respondent's petition for writ of certiorari; his conviction became final on August 6, 2001, upon the Supreme Court’s denial of rehearing in the matter”).