author: SWANSON, J.

text:
    Kirby Sylvester SHINGLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-392.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   SWANSON, J.

In this direct criminal appeal, appellant seeks review of the sentence imposed by the trial court in response to his pro se motion to vacate his life sentence.

A grand jury originally indicted appellant for armed robbery, aggravated battery and possession of a firearm by a convicted felon, for offenses committed on October 12, 1991. Although charged as an adult, at the time of those offenses appellant was sixteen years of age. Subsequently, appellant pled guilty to the charged offenses and was sentenced to a term of life in prison as a habitual violent felony offender for the armed robbery, consistent with the provision of section 775.084(4)(b)l., Florida Statutes (1991). Appellant also received concurrent thirty-year sentences for the second-degree felonies in this case and another case not subject to this appeal.

In July 2010, appellant moved, pro se, to vacate the life sentence based on Graham v. Florida, — U.S. —, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Graham, the United States Supreme Court held that a sentence of life without the possibility of parole for any crime committed by an offender under the age of eighteen, other than homicide, constituted cruel and unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution.

In this appeal, appellant seeks review of the sentence imposed by the trial court after it granted his motion to vacate his life sentence in light of Graham. The crime of robbery with a firearm is a first-degree felony ordinarily “punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.” § 812.13(2)(a), Fla. Stat. (1991). As earlier noted, though, the trial court sentenced appellant as a habitual violent felony offender to a life sentence without the possibility of parole. However, after agreeing that Graham rendered appellant’s life sentence unconstitutional, at resentencing the trial court again sentenced appellant as a habitual violent felony offender, but imposed a term of forty years’ imprisonment. On its face, this sentence is unlawful. In the case of a felony of the first degree, section 775.084(4)(b)l., mandates a life sentence; it does not authorize the imposition of a term-of-years sentence. Consequently, in appellant’s case, due to the dictate of Graham and the unalterable sentencing mandate of section 775.084(4)(b)l., the trial court did not have the option on resentencing to retain appellant’s status as a habitual violent felony offender. Rather, the trial court was limited to imposing a sentence consistent with section 812.13(2)(a) and the sentencing guidelines.

Sentencing under the guidelines was discussed during the resentencing hearing. Defense counsel noted appellant’s score-sheet for a first-degree felony reflected a permitted sentence ranging from nine to twenty-two years’ incarceration, and argued that any sentence exceeding the twenty-two year ceiling would have to be accompanied by written departure reasons. The trial court considered imposing the forty-year sentence as an upward departure, discussing various reasons for doing so, but ultimately rejected that option, pronouncing the forty-year sentence to be “appropriate” and ruling “the HVFO stands.”

Following the filing of his Notice of Appeal, appellant also filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court denied the motion. Appellant’s arguments raised in his motion and on appeal are the same: section 775.084(4)(b)l., does not authorize the imposition of a “term-of-years” habitual violent felony offender sentence for a first-degree felony punishable by life, and the forty-year sentence is otherwise unavailable as a guidelines upward departure sentence without written reasons comporting with section 921.001, Florida Statutes (1991). In addition, appellant pointed to the Florida Supreme Court’s recent ruling in State v. Fleming, 61 So.3d 399 (Fla. 2011), applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to resentencing conducted after those decisions were issued.

We conclude the trial court’s discretionary sentencing option was limited by appellant’s permitted guidelines range, which imposes a ceiling of twenty-two years’ imprisonment, and that any departure from the permitted range would require written reasons. Furthermore, under Fleming, the trial court must take into account the mandate of Apprendi, as applied in Blakely to guidelines sentencing, that, “except for the fact of a prior conviction, a judge may impose sentence based solely on the facts reflected in a jury verdict or admitted by the defendant.” Fleming, 61 So.3d at 408. Consequently, it is premature for this court to consider the sufficiency of any of the oral reasons announced by the trial court to justify the imposition of an upward departure sentence.

Based on the foregoing discussion, we REVERSE appellant’s sentence and REMAND for resentencing in accordance with this opinion.

BENTON, C.J., and VAN NORTWICK, J., concur.


source: Caselaw Access Project

author: PER CURIAM. WOLF, J.,

license: Public Domain

text:
    B.L.R., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6581.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

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

Appellant, a juvenile, seeks review of a delinquency disposition order committing him to a maximum-risk facility. He contends that the trial court failed to comply with E.A.R v. State, 4 So.3d 614 (Fla.2009), in deviating from the recommendation of the Department of Juvenile Justice (DJJ) that he be committed to a high-risk facility. We agree and reverse.

While on post-commitment probation, Appellant was arrested for carrying a concealed firearm, possession of a weapon on school grounds, resisting an officer without violence, and possession of a firearm by a convicted delinquent. Appellant was charged with violating his probation based on these offenses. Appellant admitted the violation and the trial court ordered a predisposition report (PDR). The PDR recounted Appellant’s prior offenses and his commitment history, which included terms of probation and commitments to medium-risk and high-risk facilities. The PDR recommended that Appellant be committed to a high-risk facility based on the “seriousness” of his new offenses and his “lack of effort to abide by probation requirements.”

At the disposition hearing, the State argued that the Appellant should be committed to a maximum-risk facility based on his prior commitment history. The State pointed out that Appellant’s new offenses were even more serious than his prior offenses and that the new offenses were committed shortly after his release from a high-risk facility and while he was still on post-commitment probation. Appellant argued that the trial court should follow DJJ’s recommendation and commit him to a high-risk facility.

The trial court committed Appellant to a maximum-risk facility. The court explained its decision as follows:

[Appellant], what scares the heck out of me is why you perceive you had a need to have a gun.
I don’t know I’ve tried through dependency to reach through to you. I’ve tried through delinquency to reach through to you and I you know, we go back a long ways.
I just don’t — you know, my job is to try to decide and figure out what’s in your best interest, as well as the best interest of society.
I just keep coming back to the conclusion that you pose a severe danger to yourself, and anything less than a maximum risk is going to be sending you the wrong message because if you continue along the path that you’re continuing on, you’re going to be spending a lifetime behind bars, so. Well, may disagree with me, but I just don’t — in analyzing the information and knowing your background and knowing that high risk and moderate risk hasn’t worked and that is the only tool left in the arsenal, short of putting you in the adtdt system, I don’t see any rational argument that supports anything less than a maximum risk, (emphasis added).

We review the trial court’s disposition order for an abuse of discretion; but, whether the trial court exercised appropriate discretion in imposing a departure disposition depends on 1) whether the trial court employed the proper legal standard as set forth in E.A.R., and 2) whether the court’s departure reasons are supported by the evidence. See E.A.R., 4 So.3d at 638-39. Whether the trial court employed the proper legal standard is an issue of law subject to de novo review. See generally Collett v. State, 28 So.3d 224, 226 (Fla. 2d DCA 2010).

In E.A.R., the Florida Supreme Court “announced a new, more rigorous analysis in which a trial court must engage before departing from DJJ’s recommendation.” M.J.S. v. State, 6 So.3d 1268, 1269 (Fla. 1st DCA 2009). The court explained:

The only rational or logical means through which the juvenile court may provide ‘reasons’ that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.

E.A.R., 4 So.3d at 638. Under this standard, the trial court may not deviate simply because it disagrees with the disposition recommended by DJJ. Id. at 636 (quoting N.B. v. State, 911 So.2d 833, 835-36 (Fla. 1st DCA 2005)). Likewise, the trial court must do more than “parrot” or “regurgitate” the information in the PDR to support a departure disposition, id. at 633, 638; rather, the court must

provide a legally sufficient foundation for ‘disregarding1 the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic rehabilitative needs along with the risk that the unre-habilitated child poses to the public.

Id. at 638; see also C.A.D. v. State, 18 So.3d 672, 674-75 (Fla. 1st DCA 2009) (affirming departure disposition where the trial court based its disposition on matters not addressed in the PDR).

Here, in committing Appellant to a maximum-risk facility, the trial court focused on the fact that less restrictive options had been unsuccessful in protecting the public from Appellant’s continued delinquency. This finding is supported by the evidence, namely the fact that Appellant committed new, more serious offenses within four months after his release from a high-risk facility. The PDR did not address this issue; it simply recounted Appellant’s prior offenses and his commitment history. And although the PDR observed that Appellant was not amenable to probation, it offered no explanation why again committing Appellant to a high-risk facility would serve Appellant or protect the public. Thus, the trial court had a legally sufficient basis to deviate from the disposition recommended by DJJ.

Nevertheless, we are compelled by E.A.R. to reverse because, in explaining its rationale for deviating from the disposition recommendation, the trial court failed to articulate its understanding of the respective characteristics of the opposing restrictiveness levels and failed to explain based on these differing characteristics why a maximum-risk facility is better suited to Appellant’s rehabilitative needs and the safety of the public. Although “a trial court, working routinely with juveniles, may have insight into the types of programs provided at certain juvenile detention facilities, E.A.R. requires a trial court place that knowledge on record if the judge intends to rely on these types of findings to support deviations.” M.H. v. State, 69 So.3d 325, 328 (Fla. 1st DCA 2011). We see nothing in E.A.R. that would relieve the trial court of this obligation where the deviation is based primarily on a need to protect the public, rather than the juvenile’s need for a specific program (e.g., drug treatment). In either situation, the findings are necessary for this court to provide meaningful review of the disposition order. See E.A.R., 4 So.3d at 639 (citing Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) for the proposition that: “Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions.”).

In sum, for the reasons stated above, we reverse the disposition order and remand for resentencing. On remand, the trial court shall either amend the disposition order to include findings required by E.A.R to support the maximum-risk commitment or, if such findings cannot be made, enter a new order committing Appellant to a high-risk facility as recommended by DJJ. See C.C.T. v. State, 53 So.3d 1149 (Fla. 1st DCA 2011); C.M.H. v. State, 25 So.3d 678 (Fla. 1st DCA 2010).

REVERSED and REMANDED with directions.

LEWIS and WETHERELL, JJ., concur; WOLF, J., dissenting.

WOLF, J.,

Dissenting.

The majority relies on our court’s recent decision in M.H. v. State, 69 So.3d 325, (Fla. 1st DCA 2011), to reverse, stating the trial court failed to “place [its] knowledge on record” of the different programs offered by the varying detention levels. I disagree with the application of M.H. and would affirm on the facts of the underlying case. In the alternative, I would certify a question of great public importance as to whether the failure to follow the dictates of E.A.R. v. State, 4 So.3d 614 (Fla.2009), can ever constitute harmless error.

In M.H. this court stated:

As noted in E.A.R., in deviating, a trial court must articulate “an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) ... the divergent treatment programs and services available to the juvenile at these levels.” E.A.R., 4 So.3d at 638 (emphasis added). Here, the trial court implied that the moderate-risk facility would offer the child a “structured” drug program. However, nothing in section 985.03(44)(c), Florida Statutes, states that all moderate-risk facilities have drug treatment programs as suggested by the trial court.

M.H., 69 So.3d 325, 328. As evidenced by the foregoing analysis, the commitment deviation in M.H. was predicated on the trial court’s belief that appellant needed a “structured” drug program; however, nothing in the definition of a moderate-risk facility guaranteed the existence of such a program. Id. Unlike M.H., the trial court’s main concerns in deviating in the underlying case were the safety of the public, as well as appellant’s safety. Specifically, the court noted:

the combination of you had the means to obtain a handgun and you felt the need to obtain a handgun indicates that you have been engaging in very, very, very dangerous conduct ... my job is to try to decide ... what’s in your best interest, as well as the best interest of society. I just keep coming back to the conclusion that you pose a severe danger to yourself ... I don’t see any rational argument that supports anything less than a maximum risk.

The facts of the underlying case clearly differ from those in M.H., where the juvenile was not found to pose a threat to society or himself. In fact, in M.H., we specifically noted, “The underlying offenses for sale and possession of marijuana are not violent crimes which dictate a heightened need to protect the public, but even if they were, the trial court never stated appellant posed any threat to society.” M.H., 69 So.3d 325, 328. Section 985.03(45)(e), Florida Statutes (2010), defines a “Maximum-risk residential” facility as:

Programs or program models at this commitment level include juvenile correctional facilities and juvenile prisons. The programs are long-term residential and do not allow youth to have access to the community. Facilities are maximum-custody, hardware-secure with perimeter security fencing and locking doors- Facilities shall provide 24-hour awake supervision, custody, care, and treatment of residents. The staff at a facility at this commitment level may seclude a child who is a physical threat to himself or herself or others. Mechanical restraint may also be used when necessary.... Placement in a program at this level is prompted by a demonstrated need to protect the public.

(Emphasis added). Short of reading this definition on record and the definition contained in the administrative code on record, the trial court in the underlying case demonstrated its understanding that the maximum-risk facility was the least restrictive option that would best suit the protection of the public and further prevent appellant from harming himself. Reading the statute and the code into the record would serve no further purpose. As such, I would affirm.

However, I further write to note that both the instant case and M.H. are two recent reversals from this court based on the stringent requirements and bright-line rule outlined by the Florida Supreme Court in E.A.R. v. State, 4 So.3d 614 (Fla.2009). These cases share the following characteristics:

1. The disposition and commitment level imposed by the trial court were entirely reasonable based on the circumstances of the individual case.
2. The juvenile being sentenced had previously served at the commitment level recommended by Department of Juvenile Justice (DJJ) and within a short period of time, committed the same or a more serious offense.
3. The predisposition report issued by DJJ was inadequate, in one case containing factual inaccuracies and in both cases being totally devoid of any analysis of why the recommended commitment was (1) best suited to meet the rehabilitative needs of the child or (2) best guaranteed to ensure the safety of the general public.
4. Although the court failed specifically to articulate its understanding of the various restrictiveness levels, the disposition imposed was only one level above the one previously imposed, which had failed to deter additional criminal activities by the juvenile.

Where all of the circumstances outlined above exist, the trial court’s failure to follow E.A.R. should constitute harmless error. The structure and reasoning of E.A.R., however, appear to contemplate that harmless error would be inapplicable. I believe the Supreme Court should specifically address this issue.

I would, therefore, certify to the Florida Supreme Court the following question as one being of great public importance:

WHETHER A TRIAL COURT’S FAILURE TO FOLLOW THE DICTATES OF E.A.R. V. STATE, 4 So.3d 614 (Fla.2009), CAN EVER CONSTITUTE HARMLESS ERROR?

       The requisite findings cannot be inferred from the statutory definitions of high-risk and maximum-risk because there appear to be more similarities than differences in the security of these restrictiveness levels. Both levels do not allow the juvenile to have access to the community, both are intended for juveniles who require close supervision because of concerns for public safety, and both types of facilities are "hardware-secure with perimeter fencing and locking doors” and "provide 24-hour awake supervision, custody, care, and treatment of residents.” Compare § 984.03(45)(d), Fla. Stat. (definition of “high-risk residential”) with § 984.03(45)(e), Fla. Stat. (definition of "maximum-risk residential”). Moreover, there is no indication in the record that a high-risk facility would not adequately protect the public from Appellant (for example, that he has previously escaped from such a facility) or that there is something about a maximum-risk facility that will better serve Appellant's need to change his ways.

       While the majority states there is no discerna-ble difference between the security provided at high-risk and maximum-risk facilities, there are several key differences. Section 985.03(45) requires that high-risk facilities authorize a 72-hour community leave in certain circumstances, although such is not the case at a maximum-risk facility. The statute also states that placement at the maximum-risk level is prompted by a demonstrated need to protect the public. § 985.03(45), Fla. Stat. No such language is utilized in defining a high-risk facility. Further, pursuant to Florida Administrative Code Rule 63E-7.013 (2011), high-risk facilities are not required to provide (1) a camera surveillance system; (2) a secure sally port; (3) a secure pedestrian gate; or (4) electronic search equipment, while they are required at maximum-risk facilities.


author: VAN NORTWICK, J.

text:
    Robin MORGAN, and her attorney Bruce Committe, Appellants, v. John L. WILKINS, Arnold and Wilkins, P.A., and Jane Doe, Appellees.
    No. 1D11-0237.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Bruce Committe, Pensacola, for Appellants.
    John L. Wilkins of Arnold and Wilkins, P.A., Pensacola, for Appellees.
   VAN NORTWICK, J.

Robin Morgan appeals a final judgment dismissing her counterclaim for damages under section 559.72, Florida Statutes (2009), a part of the Florida Consumer Collection Protection Act (FCCPA), for allegedly abusive conduct in collecting a debt. Morgan and her attorney, Bruce Committe, also challenge that part of the final judgment which incorporates a final order awarding attorney’s fees to appellees pursuant to section 57.105, Florida Statutes (2009), to be paid in equal measure by Morgan and Committe. Because Morgan’s debt to the firm is an “obligation of a consumer to pay money arising out of a transaction in which the ... services which are the subject of the transaction are primarily for personal ... purposes ...,” section 559.55(1), Florida Statutes (2009), her debt constitutes a “consumer debt” under the FCCPA. Accordingly, we reverse and remand for further proceedings.

In May 2006, Morgan retained the law firm of Arnold & Wilkins to represent her in a personal legal matter. The agreement for representation provided that Morgan was to pay $2,500 in advance of any representation. Morgan did not pay in full when a demand for payment was made. Arnold & Wilkins filed a small claims action against her in county court after John Wilkins’ personal attempts to secure payment failed. Through counsel Bruce Committe, Morgan filed a counterclaim against the law firm, John Wilkes personally, and his assistant, seeking in excess of $15,000 in damages for a violation of the FCCPA, chapter 559, Florida Statutes.

The counterclaim was removed to circuit court. Wilkins moved to dismiss the counterclaim on the ground that the counter defendants are not debt collectors. Morgan responded to the motion to dismiss by arguing that the FCCPA applies not only to a collection agency, but to any party seeking to collect a consumer debt.

Following a hearing, the circuit court entered an order granting the motion to dismiss. In pertinent part, the order provides:

THE COURT FINDS that the consumer debt collections prohibitions of Fla. Stat. 559.72, the alleged violations of which are the basis of Morgan’s allegations in her counter claims against (1) Wilkins, (2) Arnold & Wilkins, P.A., and (3) Jane Doe Debbie, only apply to debt collectors, and the statute defines “debt collectors” as entities collecting the consumer accounts of others and not creditors collecting their own accounts as Morgan has alleged counter-defendants were doing in this case.

Wilkins also moved for sanctions under section 57.105 arguing that Morgan’s counterclaim was not authorized under the FCCPA. Morgan opposed the motion, arguing that the FCCPA applies to any party seeking to collect a debt. The trial court entered an order granting attorney’s fees, and in the final judgment which followed, the trial court explained that an award of fees was warranted on the authority of section 57.105. The trial court explained:

this Court found as a matter of law that the position of Robin Morgan and more importantly, her attorney Bruce Com-mitte’s reliance upon prior case authority was contrary to the relevant statute and was not well placed. Robin Morgan and her attorney were given an opportunity to dismiss the Counter-Claim upon which the request for attorney’s fees was based. More specifically, Robin Morgan and her attorney Bruce Com-mitte knew or should have known, based upon current Florida law that the claim was not supported by Florida case law or Florida statutory law, in violation of Florida Statute 57.105(l)(b).

The final judgment also incorporated the order which dismissed Morgan’s counterclaim. Morgan was ordered to pay appel-lees the amount of $2,480, plus interest, pursuant to the judgment entered on ap-pellee’s claim of breach of contract, and Morgan and Committe were ordered to pay, in equal parts, the amount of $7,500 in attorney’s fees.

On appeal, Morgan and Committe argue that the trial court erred in concluding that the FCCPA did not apply to the appellees because they are not debt collectors. Appellees concede that the trial court was in error when it ruled that FCCPA pertains only to debt collectors, as that term is defined in the Act. Appellees argue, however, that the trial court reached the right result for the wrong reason because Morgan’s debt was not a debt within the purview of the FCCPA since the debt did not flow from an extension of credit. They are incorrect.

The FCCPA precludes certain conduct “[i]n collecting consumer debts.... ” § 559.72, Fla. Stat. (2009). The term “debt” is defined in section 559.55(1) as follows:

(1) “Debt” or “consumer debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family or household purposes, whether or not such obligation has been reduced to a judgment.

There is no suggestion in this provision that a debt or consumer debt arises only after there has been an extension of credit. Appellees’ erroneous argument that there must be an extension of credit for the FCCPA to apply is premised on the definition of “debt collector.” However, a debt collector is not the only party to whom the FCCPA applies. Section 559.72 provides that “no person” shall engage in certain practices while attempting to collect a consumer debt. Moreover, “a creditor” is defined in section 559.95(3) as

any person who offers or extends credit creating a debt or to whom a debt is owed, but does not include any person to the extent they receive an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

(Emphasis added).

In support of their argument that relief is only warranted when there has been an extension of credit, appellees rely upon St. Pierre v. Winn Dixie Stores, Inc., 592 So.2d 1252, 1253 (Fla. 4th DCA 1992), which explained that “[cjlearly, by its unambiguous terms, the Act applies only to the collection of consumer claims and requires the extension of credit. §§ 559.55(1), 559.72, Fla. Stat. (1981).” St. Pierre, however, was construing the 1981 version of the statute, a version significantly different from the 2009 version under which Morgan sought relief. Under the 1981 version of section 559.55, only three terms are defined: (1) “claims or consumer claim,” (2) “debtor or consumer,” and (3) “creditor.” The term “claim or consumer claim” was defined as follows:

(1) “Claim” or “consumer claim” means any obligation for the payment of money or its equivalent arising out of a transaction wherein credit has been offered or extended to a natural person, and the money, property, or service which was the subject of the transaction was primarily for personal, family, or household purposes. The term includes an obligation of a natural person who is a comaker, endorser, guarantor, or surety as well as the natural person to whom such credit was originally extended.

(Emphasis added). Thus, the 1981 statute clearly requires an offer or extension of credit. By contrast, under the 2009 version of Florida Statutes, by which time the 1981 definition of “claim” or “consumer claim” had been replaced, a debt is “any obligation ... of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family or household purposes.... ” § 559.55(1), Fla. Stat. (2009). Thus, under the applicable statute, no extension of credit is required.

Appellees argue that St. Pierre is “somewhat reinforced” by Schauer v. General Motors Acceptance Corp., 819 So.2d 809 (Fla. 4th DCA 2002). Schauer does not demand affirmance or otherwise support the argument that the FCCPA only applies when there has been an extension of credit. The Schauer court noted that a creditor for purposes of the Act is “any person who offers or extends credit creating a debt or to whom a debt is owed.” Id. at 812 (quoting § 559.55(3)) (emphasis added). Because in Schauer GMAC extended credit for the purchase of a car, GMAC qualified as a creditor for the purposes of the FCCPA. Schauer does not hold that only a party who extends credit may be deemed a creditor under FCCPA.

Here, the trial court erred as a matter of law in entering the order dismissing the counterclaim. Morgan incurred an obligation in connection to a transaction with Arnold and Wilkins, P.A., for the provision of legal services. Morgan’s obligation to the law firm falls within the definition of debt in section 559.55(1). Accordingly, the final judgment must be reversed. We also reverse the award of attorney’s fees which is incorporated in the final judgment.

REVERSED and REMANDED for further proceedings consistent with this opinion.

WETHERELL and ROWE, JJ., concur.

      . A different portion of chapter 559, sections 559.541-559.548, governs "commercial” — as opposed to "personal, family, or household” — collection practices.

      . Section 559.55(6) defines as "debt collector” as
      any person who uses any instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The term 'debt collector' includes any creditor who, in the process of collecting her or his own debts, uses any name other than her or his own which would indicate that a third person is collecting or attempting to collect such debts.


author: PER CURIAM.

text:
    IZAAK WALTON INVESTORS, LLC, a Florida limited liability company; Sherwood Partners, LLC, a Florida limited liability company; Gulf To Bay Yankeetown, LLC, a Florida limited liability company; RDG Partners, L.P., a Georgia limited partnership; James Sherwood; Robert E. Dowdell; Dennis Chookaszian; Karen Chookaszian; Michael J. Spittler; Michael A. Partiarca; Peter Spittler; and Michael Chookaszian, Petitioners, v. BRANCH BANKING AND TRUST COMPANY, a North Carolina banking institution, successor in interest to Colonial Bank by asset acquisition from the FDIC as Receiver for Colonial Bank, Respondent.
    No. 1D11-3241.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Kimberly L. Sharpe of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Petitioners.
    John A. Anthony and Allison C. Dou-cette of Anthony & Partners, LLC, Tampa, for Respondent.
   PER CURIAM.

The petition for writ of certiorari filed in this case to address the trial court’s May 19, 2011, order entitled Final Judgment of Foreclosure on Count III of Complaint, is DENIED AS MOOT in light of the trial court’s August 4, 2011, Order Vacating Final Judgment of Foreclosure on Count III of Complaint.

DAVIS, PADOVANO, and ROWE, JJ„ concur.


text:
    Michael JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0326.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Michael Jackson, pro se; Sandra Atkins Painter, Southport, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on September 1, 2010, in Jackson County Circuit Court case numbers 09-744-CF; 09-721-CF; 09-726-CF; 09-727-CF; 09-743-CF; 09-745-CF; 09-754-CF; 09-755-CF; 09-756-CF; 09-771-CF and 09-815-CF, is granted. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

WOLF, LEWIS, and WETHERELL, JJ., concur.


author: DAVIS, Judge. ALTENBERND, Judge,

text:
    Terry Lee COLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4330.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2011.
    Terry Lee Coley, pro se.
   DAVIS, Judge.

Terry Lee Coley challenges the summary denial of his motion for postconviction relief based on a claim of newly discovered evidence filed pursuant to Florida Rule of Criminal Procedure 3.850. Because his motion is facially sufficient and the attached portions of the record do not refute his claim, we reverse.

On March 3, 1999, a jury convicted Coley of one count of aggravated battery with great bodily harm for shooting Linda Watson. The trial court sentenced him to fifteen years in prison. On January 6, 2009, Coley filed a motion pursuant to rule 3.850(b)(1), alleging a claim of newly discovered evidence in the form of a new witness, Melvin Gay, who would testify that Derek McNeal actually shot the victim. Coley attached Gay’s sworn affidavit in support of this claim and alleged that Gay was unknown as a witness at the time of trial and that he could not previously have learned of Gay through the exercise of due diligence. Coley also claimed that Gay’s testimony would likely produce an acquittal on retrial.

The postconviction court denied Coley’s claim, finding that Gay could have been located sooner through the exercise of due diligence and that the testimony was incredible based on its inconsistencies with the trial testimony of other eye witnesses.

To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Newly discovered evidence satisfies the second prong of the ... test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.”

Preston v. State, 970 So.2d 789, 797 (Fla.2007) (bracket alteration in original) (citation omitted) (quoting Jones v. State, 709 So.2d 512, 521 (Fla.1998)).

The attached records do not conclusively refute Coley’s claim that he could not have learned of this witness sooner, nor do they conclusively show that this testimony would be unlikely to produce an acquittal on retrial. See Smith v. State, 39 So.3d 461, 463 (Fla. 2d DCA 2010). It appears from the record provided that the crucial evidence implicating Coley was the identification of him as the shooter by three State witnesses. Gay’s testimony would have supported Coley’s assertion at trial that the State’s witnesses identified the wrong person. Nothing in the attached portions of the trial record would conclusively refute Gay’s assertion that he was present but hidden at the time of the shooting. Furthermore, while Gay’s credibility may be called into question based on conflict with testimony adduced at trial, such conflict is necessarily an evidentiary matter that must be weighed after a hearing and is not proper grounds for denial at the summary stage of the proceeding. See McLin v. State, 827 So.2d 948, 955 (Fla.2002) (holding that trial court erred in rejecting newly discovered testimony without evidentiary hearing when affidavit was not inherently incredible or obviously immaterial to defendant’s claim).

We therefore reverse the postconviction court’s order summarily denying Coley’s rule 3.850 motion. On remand the post-conviction court should either summarily deny the motion attaching those portions of the record that conclusively refute Coley’s claim or conduct an evidentiary hearing to address the reliability of Gay’s testimony and the likelihood that his testimony would have produced a different outcome at trial. Id.

Reversed and remanded for further proceedings.

KELLY, J., Concurs.

ALTENBERND, J. Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in the court’s opinion. This is one of those postconviction cases in which the defendant happens by odd coincidence to find a very favorable witness, who just happens to be serving time in the same prison where he is serving his sentence. Athough the witness, Mr. Gay, did not come forward in 1998, he was willing to provide his testimony under oath in 2008.

Given that improbable events occur in our lives with some frequency, we cannot reject this claim as a matter of law. In the event that the trial court concludes after an evidentiary hearing that the improbability of these events is not generated by coincidence, but rather by perjury, the trial court will have options available to it that should be sufficient to address its concerns.


author: VICTORY, J. JOHNSON, Justice, KNOLL, J.,

text:
    Lola BROOKS, Bridgette Gosnay, and Jesse Brooks, Jr. v. The STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2010-C-1908.
    Supreme Court of Louisiana.
    July 1, 2011.
    Rehearing Denied Sept. 16, 2011.

      John Henderson Ayres, III, Baton Rouge, LA, for Applicant.
    Alton Tracy Moran, Musa Rahman, Baton Rouge, LA, for Respondent.
   VICTORY, J.

11We granted a writ in this wrongful death case to determine the scope of duty of the Louisiana Department of Transportation and Development (“DOTD”) to maintain the shoulder of a state highway. The specific issue is whether DOTD’s duty to maintain the shoulder encompasses the risk that a driver of a baekhoe not authorized for highway use will drive on the shoulder and attempt a sharp turn into a driveway at a relatively high rate of speed, hit a 2-4 inch depression in the asphalt, tip over, and be crushed by the baekhoe. After review of the record and the applicable law, we find DOTD’s duty did not encompass this risk. Therefore, we reverse the judgments of the lower courts and render judgment in favor of the defendant.

FACTS AND PROCEDURAL HISTORY

On June 20, 2005, Jesse Brooks Jr. (“Brooks”), an operating engineer for Industrial Plant and Maintenance, was driving a baekhoe along the shoulder of Highway 30 in an industrial area of St. Gabriel, Louisiana, for the purpose of delivering the baekhoe to another company. Brooks told his co-worker, Stephen Harris (“Harris”), that he was driving the baekhoe to “Sygenta,” a company located a short distance down the road. Harris followed Brooks in a pickup along the shoulder of Highway 30. When they reached Sygenta, Brooks did not turn in the ^driveway but continued along the shoulder until he reached the driveway of Suttles Trucking Company, at which time he made a sharp right turn into the driveway and his backhoe tipped over to the left, falling on top of Brooks and killing him.

The plaintiffs, Brooks’ wife and children, filed a wrongful death suit against DOTD, alleging that a 2-4 inch depression in the asphalt on the shoulder where the highway met the 70-foot wide driveway caused the backhoe to flip over. The claim was tried before a jury in August, 2008, which rendered a verdict in favor of the plaintiffs and assessed damages in the amount of $811,413.00 in favor of Brooks’ wife, and $150,000.00 each in favor of Brooks’ two adult children. On appeal to a five-judge panel, the judgment was affirmed but amended to attribute 20% fault to Brooks. Brooks v. State of Louisiana, through the Department of Transportation and Development, 09-1267 (La.App. 1 Cir. 7/6/10), 41 So.3d 661 (unpublished). We granted DOTD’s writ application to consider whether DOTD’s duty to maintain state highways and shoulders extends to the driver of the backhoe in this case. Brooks v. State of Louisiana, through the Department of Transportation and Development, 10-1908 (La.11/12/10), 49 So.3d 875.

DISCUSSION

The plaintiffs’ theory of the case is that the shoulder had a 2-4 inch depression in the asphalt which Brooks drove over while turning and which caused the backhoe to tip over. The defense argues its duty to maintain the shoulder does not encompass the risk involved in this accident because Brooks was not authorized by law to drive the backhoe on the highway or the shoulder, the backhoe was a specialized construction vehicle which was inherently unstable and top-heavy, and Brooks was traveling too fast to negotiate the turn. DOTD argues the condition of the shoulder did not present an unreasonable risk of harm because vehicles authorized to travel on the highway or shoulder, such as cars, trucks, vans, |sand 18-wheelers, would not have been adversely affected by the condition of the shoulder.

DOTD’s duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. La. R.S. 48:21(A); Netecke v. State ex rel. DOTD, 98-1182 (La.10/19/99), 747 So.2d 489, 494-95; Campbell v. Department of Transp. & Development, 94-1052 (La.1/17/95), 648 So.2d 898, 901-01; Oster v. Department of Transp. & Development, 582 So.2d 1285, 1288 (La.1991). This duty extends to the shoulders of highways as well. Netecke, supra at 495; Brown v. Louisiana Indem. Co., 97-1344 (La.3/4/98), 707 So.2d 1240, 1242; Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1172 (La.1986); Rue v. State, Dept. of Highways, 372 So.2d 1197, 1199 (La.1979). DOTD’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. Netecke, supra at 495; Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566, 572; Rue, supra at 1199. This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Netecke, supra at 495; Ledbetter v. State, Through La. Dept. of Transp. & Development, 502 So.2d 1383 (La.1987).

Nonetheless, DOTD is not a guarantor of the safety of all the motoring public under every circumstance. Fontenot v. Patterson Ins., 09-0669 (La.10/20/09), 23 So.3d 259, 271; Netecke, supra at 495. Nor is DOTD the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway. Id. In other words, we will not impose liability for every imperfection or irregularity, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Fontenot, supra at 271; Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983). Whether the DOTD breached its duty, that is, whether the shoulder was in an unreasonably dangerous condition, is a question of fact and will depend on the facts and circumstances of each case. Fontenot, supra at 271; Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123, 1127. If the shoulder did not present an unreasonable risk of harm then DOTD, by definition, did not owe a duty to Brooks and cannot be held liable for the damages he sustained. Oster, supra at 1288. As a question of fact, we will review the jury’s determination that the shoulder presented an unreasonable risk of harm under the manifest error standard. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362, 365. Under the manifest error standard, an appellate court may not disturb a jury’s finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176.

This Court has described the unreasonable risk of harm criterion as a guide in balancing the likelihood and magnitude of harm against the social utility of the thing, all the while considering a broad range of social and economic factors, including the cost to the defendant of avoiding the harm, as well as the risk and social utility of the party’s conduct at the time of the accident. Fontenot, supra at 268; Netecke, supra at 498. In every determination, all the circumstances surrounding the particular accident under review must be considered to determine whether DOTD’s legal duty encompassed the risk which caused the plaintiffs damages. Fontenot, supra at 268; Oster, supra at 1289.

The facts and circumstances of this accident were described at trial by an eyewitness, a police officer, and three expert witnesses. Steve Harris, Brooks’ co-employee, testified that Brooks asked him to follow him to Sygenta, where he was Isgoing to take the backhoe. Harris followed Brooks in a pickup truck. At trial, Harris testified that Brooks was traveling on the shoulder between 18 and 20 mph, and that the maximum speed of this backhoe was 20 mph. Brooks passed up the entrance to Sygenta, and instead turned into the driveway of Suttles. Harris testified he assumed Brooks had inadvertently passed up Sygenta and was attempting to turn around in the Suttles driveway. As Brooks’ made a sharp right-hand turn into the driveway, the backhoe tilted over to the left and fell on top of Brooks, killing him. In Harris’s opinion, Brooks was driving too fast for the turn. Harris testified that Brooks was driving on the shoulder to avoid traffic. He stated that their company transports backhoes by driving them on the shoulder for short distance, otherwise they haul them, which can be expensive.

Jamal Carter, the police officer called to scene of the accident, testified he did not notice anything significant about the driveway, and did not believe anything inherent in the driveway caused the backhoe to turn over. From his review of the accident scene, he believed Brooks was going too fast to turn which caused the backhoe to turn over. The police report did not mention the condition of the shoulder as a cause of the accident.

Andrew McPhate, an expert in accident reconstruction and vehicle dynamics, testified that the driveway where the accident occurred is 70 feet wide, and the highway has a 10 foot wide paved shoulder. McPhate testified there were irregularities in the asphalt at the scene of the accident, and he measured a depression of 2-4 inches in the shoulder. He described the backhoe as 2-wheel drive with a front end loader. He testified that when the outriggers are pulled up, the backhoe has a high center of gravity, with a large inertia for rocking front to back, and a propensity for acting like a seesaw. He testified the backhoe had no | (¡springs or shock absorbers, and can easily turn over, even at speeds as low as 10 mph. He believed the condition of the shoulder could have caused the front end to bounce up and if Brooks was holding on to the steering wheel, it might cause him to turn the steering wheel even more. He concluded with his opinion as to the cause of the accident as follows:

My opinion is simply that [the backhoe] was coming down the shoulder. He was going to execute and did attempt to execute a turn into that particular location. In all likelihood, the front wheels engaged these irregularities, very likely increased the angle of steering, and he entered that particular pavement, concrete pavement, turning too sharply for the speed he was traveling.
And as the vehicle starts to tip, the loading on the wheel is such that it would increase the steering and cause it to turn even more. And, so the operator to recover would have to execute some rapid steering to the left into the direction that it is trying to fall. He would actually had to steer into the direction it was trying to fall because it is wanting to turn more and more to the right. He would have to steer it back to the left, if he could do that. If he had— the problem is that once it starts up, he is hanging onto the steering wheel. And so now is he interacting with it, and depending on where he is hanging on to the steering wheel, it may have increased the steer — increased the turn rather then decreased the turn.

In his opinion, Brooks could have made the turn if the shoulder had a flat surface. He acknowledged on cross-examination that no one saw Brooks bounce or grab the steering wheel. He testified that the condition of the shoulder was not a problem for a car because a car has shock absorbers. Further, the condition was not hazardous for a van, an 18-wheeler, or any other kind of vehicle that is registered by the Department of Motor Vehicles to ride on the highway. On cross-examination, McPhate specifically declined to state that the condition of the shoulder was, more probably than not, a cause of the accident, and would only way “it is one of the possibilities.” He also stated on cross-examination that Brooks “was going too fast for the sharpness of the turn.”

17Puane Evans, an expert in traffic engineering, testified the depression was 3-4 inches, based on the fact that asphalt is usually placed in 2-inch layers. At the edge of the depression, he observed one of the layers missing, and nearer to the driveway, it looked to him that an additional layer was missing. He testified that the Louisiana Maintenance Planning Manual states that depressions in paved shoulders over one inch deep should be repaired, and that “turn outs,” such as this driveway, should be given special attention. The manual requires roads to be inspected at least every two weeks and the condition of this shoulder took many months to develop. He testified that Brooks had to traverse the depression to reach the point where he ended up. In his opinion, Brooks could have made the turn going 10-15 mph over a flat surface. He did not know how sharply Brooks turned, but there was no reason to believe he was making a sharp turn because the driveway provided such a wide radius to turn in. On direct examination, he testified that the condition of the shoulder could be a problem for any type of vehicle that had to go on to the shoulder because it could disrupt the steering. He explained that the roughness of the asphalt reduces the friction between the tire and the roadway which causes some loss of steering control. However, on cross-examination, he testified that a van, car, or 18 wheeler would have had no problems going over this depression in the shoulder at a low rate of speed.

John Mounce, an expert in accident reconstruction, highway design and maintenance, and highway operations and safety, testified he believed Brooks’ backhoe turned over because Brooks was going too fast in a sharp turn. In his view, the depression not a cause of the accident. He testified the backhoe was more prone to tip over in a turn because it is top heavy, with a high center of gravity, and that the bucket was up causing the backhoe to have an even higher | ^center of gravity. In Mounce’s opinion, the fact that Brooks fell to the left when he was turning right indicates he was going too fast and turning too sharply.

A review of the circumstances surrounding this accident reveals that DOTD’s legal duty did not encompass the risk which caused Brooks’ death. There is no doubt that the magnitude of the harm in this case, Brooks’ death, was tremendous, and this is a factor to be weighed in the unreasonable risk of harm analysis. We must also consider that Brooks was not authorized by law to drive this backhoe on the highway or the shoulder. As the court of appeal correctly recognized, Brooks was not authorized to travel on the shoulder because La. R.S. 32:299 A(l)’s limited exception allowing off-road vehicles to travel on the shoulder is limited to those off-road vehicles used “solely for the purposes of farm-related activities within a five-mile radius of a farmer’s farm.” Further, while La. R.S. 32:298 allows “farm tractors” to operate on the shoulders under certain conditions, a “farm tractor” is defined by La. R.S. 32:1(19) as a “motor vehicle designed and used primarily as a farm implement, for drawing plows, moving machines, and other implements of husbandry.” It was uncontested that the backhoe in this case was not being used for “farm-related purposes” and would not fall under either of those exceptions. However, plaintiffs argue that backhoes possess similar characteristics to those farm vehicles, including a high center of gravity. Because these statutes authorize farm tractors and other forms of farm equipment to be operated on the shoulder, DOTD was aware that backhoes and similar vehicles would be using the shoulders, and therefore their duty extended to all these vehicles, including this backhoe. We disagree. The legislature has the right to make policy decisions as to which types of vehicles are authorized to travel on this state’s highways and shoulders, taking into account all relevant safety considerations among other things. Backhoes are inherently top heavy and [ 9unstable, and are not designed to for on-road transportation of persons or things, but are instead designed to perform construction related activities. Though the legislature has made a limited exception that would allow a backhoe to be operated on the shoulder if used for farming in certain circumstances, that policy decision was within their discretion likely driven by practical considerations involving farm operations. That certainly does not mean that all backhoes are authorized to be driven on highway shoulders, or that the DOTD would necessarily owe a duty to every backhoe used for farming purposes. As stated earlier, all facts and circumstances surrounding a particular accident must be considered to determine whether DOTD’s legal duty encompassed the risk which caused the plaintiffs damages, and whether a vehicle is authorized to travel on the highway or shoulder is just one of those facts and circumstances. As highways are to be designed safely for vehicles designed to be traveled over them, the fact that the backhoe was not authorized for highway travel weighs against a finding that DOTD’s duty encompassed the risk involved here.

The physical and financial inability of DOTD to maintain the State’s roadways in anything more than a reasonably safe condition has also been considered by this Court as a factor in determining whether a particular condition presents an unreasonable risk of harm. Netecke, supra at 499 (cites omitted). The testimony indicated that this backhoe was inherently unstable and top-heavy, and very prone to tipping over, even at speeds of 10 mph. The site of the accident was an industrial area with heavy vehicles being driven over the shoulder and driveway which caused the asphalt to deteriorate somewhat. The testimony was consistent that a vehicle authorized for highway travel, such as a car, van, truck or 18-wheeler, would have encountered no difficulties traversing this shoulder during a turn. DOTD is responsible for thousands of miles of roads in this State. The cost hoto the State of maintaining the shoulders of state highways in such a condition that motorists operating vehicles not designed for highway use, and which may topple over even at low speeds traversing small areas of asphalt wear, would be great, and probably fiscally impossible.

Further, the social utility of Brooks’ conduct is minimal. Brooks was essentially taking a short cut, attempting to move the backhoe from one location to another by driving it on the shoulder, when the proper, albeit more costly method of delivery, would have been to haul it there.

Finally, we must take into account Brooks’ speed at the time of the accident in evaluating the risk of Brooks’ conduct. While there was only one eyewitness, and he testified at his deposition that Brooks was traveling 10-15 mph, and at trial that Brooks was traveling 18-20 mph, he clearly stated he felt Brooks was traveling too fast to make the turn he was attempting to make. This is consistent with the testimony of Officer Carter, as well as the expert testimony of McPhate and Mounce. Given his speed in attempting the turn in such an unstable vehicle, the risk posed by Brooks’ conduct was high. There was no reasonable factual basis for the jury to find that Brooks was a prudent driver exercising ordinary care under the circumstances. DOTD’s duty is to maintain the shoulder in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence; therefore, it was clearly wrong for the jury to find DOTD liable for Brooks’ death.

CONCLUSION

As stated, DOTD is not the guarantor of the safety of all the motoring public under every circumstance. DOTD is only liable for conditions that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. After reviewing all the circumstances surrounding this Inaccident, we find the jury was manifestly erroneous in finding the condition of the shoulder presented an unreasonable risk of harm. DOTD is simply not required to maintain the roadway in such a condition that the driver of an unstable backhoe, unauthorized for highway or shoulder driving, traveling too fast to negotiate a sharp turn in that vehicle, will be able to negotiate the turn without injury. There was no evidence in the record that the condition of this shoulder could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances, in fact all the evidence was to the contrary. Therefore, the condition of the shoulder did not present an unreasonable risk of harm and DOTD’s duty did not encompass this risk. To hold otherwise would place an unreasonable burden on the State and DOTD to ensure a pavement surface on a heavily traveled shoulder so smooth that construction vehicles not authorized for highway use can be imprudently operated upon it.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and judgment is rendered in favor of the defendant.

REVERSED AND RENDERED.

JOHNSON, Justice, dissents and assigns reasons.

KNOLL, Justice, concurs and assigns reasons.

JOHNSON, Justice,

dissents and assigns reasons.

_JjThe majority concludes that DOTD’s duty to maintain the State’s highways did not extend to Jesse Brooks since he was driving a backhoe on the shoulder of Highway 30 when it overturned, causing his death. I agree with the appellate court which concluded that the general duty owed by DOTD extends to all self-propelled vehicles that travel the highways of the state. LSA-R.S. 32:1(40). This Court has held that the State has a duty to maintain its highways and shoulders, and this duty encompasses the foreseeable risk that a driver might inadvertently find himself traveling on the highway shoulder, lose control of his vehicle, and suffer injury. See, Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682; Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979). This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Ledbetter v. State, Through La. Dep’t of Transp. & Dev., 502 So.2d 1383, 1387 (La.1987).

In the case sub judiee, the majority relies on that the fact that Brooks was not 12authorized by law to drive the backhoe on the highway or the shoulder because the backhoe is not a “motor vehicle” that is registered with the Secretary of the Department of Public Safety, requiring a vehicle license. See, LSA-R.S. 32:51. However, the fact that Brooks was not authorized to drive the backhoe on the shoulder does not alleviate DOTD of its duty to keep the highways in a reasonably safe condition nor should it prevent the decedent’s family from recovering damages for Brooks’ wrongful death. Although DOTD is not a guarantor of the safety of all travelers, it owes a duty to maintain the highways and shoulders in a reasonably safe condition for non-negligent motorists. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

Stephen Harris, who was Brooks’ coworker and the only eyewitness to the accident, testified that the accident occurred in an industrial area where construction equipment, including backhoes, tractors, and trucks, was commonly driven for short distances on the highways. He testified that it was a common practice of their employer, Industrial Plant and Maintenance, to transport equipment for short distances by driving it on the shoulder of the highway, as it was too expensive to haul the equipment. One of the experts, Andrew McPhate, also testified that while industrial/construction equipment is not designed primarily for roadway use, it was customary in this industrial area to move backhoes and other construction equipment on the state highways and its shoulders. LSA-R.S. 47:502 allows similar self-propelled equipment, such as farm tractors and farm equipment, log loaders, road rollers and road machinery, to temporarily move upon the state highways.

The record indicates that the asphalt on the shoulder where the accident occurred was crumbling, and the depth of the irregularities and depressions in the shoulder’s surface was 2 to 4 inches deep. Because this area was used repeatedly as |3a turnout, requiring a bi-weekly inspection, DOTD either knew or should have known of the shoulder’s defective condition and the dangers it presented to the motoring public. DOTD’s failure to repair the defective shoulder, which created a significant risk to all who traveled across that area, was within DOTD’s scope of protection and obligation to maintain safe highway shoulders. Thus, I conclude the risk of injury caused by the defective conditions of the roadway and shoulders was foreseeable. I would affirm the damage award for Brooks’ wrongful death.

KNOLL, J.,

concurring.

l,The majority finds “the condition of the shoulder [where the accident occurred] did not present an unreasonable risk of harm [sic] and DOTD’s duty did not encompass this risk.” I concur because, in my view, DOTD did not owe any duty to plaintiff, who was illegally driving a backhoe on the shoulder of a public road, and it is therefore unnecessary to consider any other issue regarding the scope of DOTD’s duty or the risk of harm created by the condition of the road. I further concur because the proper standard of review on the issue of DOTD’s duty toward plaintiff is de novo, and therefore a manifest error review is misplaced.

The majority correctly states DOTD has a duty “to maintain the public roadways, including adjacent shoulders and areas in DOTD’s right-of-way, in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence.” Forbes v. Cockerham, 08-0762 (La. 1/21/09), 5 So.3d 839, 858; see also, La.Rev.Stat. § 48:35(E)(l)(a) (describing DOTD’s duty in substantially similar terms). It also recognizes this duty does not apply to every potential plaintiff in any conceivable circumstance. However, the majority fails to consider whether DOTD owes this duty to plaintiff Brooks, who was injured while driving a backhoe on the shoulder of a Louisiana public highway.

|2In the duty/risk analysis applicable to all negligence claims, we consider whether the defendant owes a duty of care to the particular plaintiff in question:

Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.

Hill v. Lundin & Assoc., 260 La. 542, 256 So.2d 620, 623 (1972). These policy considerations may properly be included as part of the initial duty inquiry, especially when the primary issue is “whether the defendant stands in any relationship to the plaintiff as to create any legally recognized obligation of conduct for the plaintiffs benefit.” Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1155 (La.1988).

“Whether a duty is owed is a question of law; whether defendant has breached a duty owed is a question of fact.” Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La.3/16/10), 35 So.3d 230, 240 (citing Mundy v. Dep’t of Health & Human Res., 620 So.2d 811, 813 (La.1993)); see also, Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 5.02 (2004 ed. Supp.2010) (“Duty is generally considered a question of law, but legal causation is a mixed question of law and fact ... [so] there is a rational allocation of the decision-making function: the judge decides duty and the jury decides legal cause”) Therefore, we may review the issue de novo. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766, 770; City of New Orleans v. Bd. Of Comm’rs of Orleans Levee Dist., 93-0690 (La.7/5/94), 640 So.2d 237, 253.

Judge Parro, dissenting in the opinion of the court below, correctly observed: “[i]t belies common sense to conclude that the driver of a backhoe on a state highway would be considered as part of ‘the motoring’ public to whom DOTD owed a duty of care.” Brooks v. State, through the Dept. of Transp. & Dev., 09-1267 (La.App. 1 Cir. 7/6/10), 2010 WL 2679970 (Parro, J., dissenting) (unpublished). The backhoe Loperated by plaintiff was neither designed nor authorized for operation on any part of a highway. According to expert testimony presented at trial, the vehicle was top-heavy and prone to rocking forward and backward. It can only achieve speeds near twenty miles per hour and lacks any kind of shock absorbers or similar device. Moreover, it is susceptible to flipping over at speeds greater than ten miles per hour. This machine was clearly not designed for highway travel.

Additionally, the Louisiana legislature has not authorized plaintiffs vehicle for ordinary operation on public roads. Significantly, backhoes are not subject to motor vehicle registration and therefore cannot be lawfully operated on the public roadways under La.Rev.Stat. § 32:51. Although motor vehicles that are arguably similar to the backhoe in question are allowed to travel incidentally or temporarily on public roadways for farm-related purposes and roadwork, plaintiffs vehicle meets none of these exceptions. In this regard, the majority correctly reasons that authorization of heavy equipment similar to, and possibly including, backhoes to drive the public roadways for specific, limited purposes does not bring such vehicles within the “motoring public” such that DOTD must design and maintain every public road for their safe operation.

This understanding of the DOTD’s duty is bolstered by the legislature’s provision for an alternative means of transporting heavy machinery on Louisiana roads. Rather than driving the heavy equipment, the legislature intended for them to be carried by vehicles designed for highway travel. To this end, La.Rev.Stat. § 32:651 authorizes the creation of special permits for “transporters of heavy |4equipment,” thereby allowing trucks to exceed the typical weight and width restrictions when carrying heavy machinery.

Unlike the majority, which treats the considerations discussed above as factors in an unreasonable risk analysis, I find them determinative on the preliminary question of duty. This case is a classical example of why it is necessary to consider whether a duty is owed to this plaintiff. DOTD owes a well-recognized duty of care toward the motoring public, but not toward every individual who happens to be on the roadway. DOTD must be able to discern what types of vehicles will be travelling on the public roadways; otherwise it will be impossible to determine what standards of construction and maintenance will allow safe travel thereon. Plaintiff, driving a backhoe on the shoulder of Highway 30 with no purpose related to farming or road construction, lies outside any commonsense definition of the motoring public. Therefore, I find DOTD owed plaintiff no duty of care regarding the roadway upon which he drove.

Because I find DOTD’s lack of duty toward this plaintiff to be the dispositive issue, it is unnecessary to consider whether DOTD’s duty of care included the risk of a backhoe flipping over while turning off the shoulder of a public road or whether the depression on the shoulder of Highway 30 created an unreasonably dangerous risk of harm. Any discussion of these issues by the majority is unnecessary and, therefore, constitutes obiter dictum. For the reasons assigned above, I respectfully concur in the result.

      . At his deposition, Harris estimated Brooks' speed at between 10 and 15 mph.

      . La. Rev. Stat. § 32:298 authorizes "farm tractors” and "farm equipment” to operate on the shoulders of non-interstate highways with asphalt or concrete shoulders, but La. Rev.Stat. § 32:299 limits the operation of "off-road vehicles” by virtue of the fact that they “are not specifically designated for road use” to use "solely for the purposes of farm-related activities within a five-mile radius of a farmer's farm.” The evidence presented at trial shows plaintiff was not operating the backhoe for any farm-related purpose. Similarly, La.Rev.Stat. § 32:23 exempts motor vehicles from all restrictions governing their operation on public roads “while actually engaged in work upon a highway,” but plaintiff was clearly not engaged in road work.