author: VAN NORTWICK, J.

text:
    Brian Keith TRUETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0160.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Brian Keith Truett, appellant, seeks reversal of his conviction for felony malicious mischief and a new trial, arguing that the trial court erred in denying his request for a jury instruction on the affirmative defense of alibi. Because we agree that the trial court erred in refusing to give the alibi instruction to the jury as requested by Truett, we reverse and remand for a new trial.

The State charged Truett with felony criminal mischief of $1,000 or more as a result of the damage he allegedly caused by kicking the passenger door of an automobile owned by Chelsea McDonald. The damage was inflicted at a party or “get-together” which took place at 2768 Mesquite Avenue during the night of January 16-17, 2011. At trial, the State presented the testimony of three witnesses to establish that Truett was at the party when and where the damage occurred.

Deputy Mobley, Clay County Sheriffs Office, testified that he responded to a call placed by McDonald, and arrived on scene in the early morning hours of January 17. Deputy Mobley conducted a preliminary investigation and began searching for appellant. Deputy Mobley visited the house of Evan Hingson, who was a friend of appellant, and, although Truett was not there, Deputy Mobley found Truett’s vehicle parked at the house with a flat tire. Deputy Mobley eventually located Truett at his place of residence, where he lived with Les Lesiege. Upon Deputy Mobley’s request, Lesiege went to Truett’s bedroom, and found Truett sleeping.

Truett testified on his own behalf, while also offering the testimony of Lesiege, Hingson, and Watara Wright. Lesiege testified that he was home with Truett on the night in question and saw Truett go into his bedroom around 10:45. Lesiege further testified that he also retired around that time and was not awakened by any sound or disturbance until Deputy Mobley knocked on his door. Lesiege stated that he had no reason to believe that Truett left the house during the night because Lesiege owns a dog that will bark to wake him if there are any noises during the night and that the dog did not awaken him on the night in question.

Truett testified that he blew a tire on his way home from work, parked it at his friend Hingson’s house, and walked the rest of the way home. Truett stated that he was not present at the party at 2768 Mesquite Avenue. Hingson and Wright both testified that Truett was not at the party.

Pursuant to the testimony that Truett did not attend the party, the defense filed a notice of intention to claim alibi and requested the trial court to give the alibi instruction to the jury. The trial judge declined to give the instruction, stating, “[i]n order to have a true alibi defense it is not the absence of not seeing somebody. It’s having been with somebody at the time of the crime. You don’t have that.” Defense counsel referenced Lesiege’s testimony that he saw Truett go to bed, whereupon the trial court replied, “[h]e saw him go to bed. As far as he knows he didn’t leave. But that’s not an alibi. It is: I was with him at 3:30. We were playing cards. He couldn’t have kicked in the door.” Defense counsel responded, “Okay,” and the trial court said, “[s]o I don’t think that is a legal alibi that you presented. You could argue it certainly, but you can’t — I can’t instruct them on alibi ...”

At the close of the case, the trial court gave the jury its instructions, leaving out the instruction on alibi. After reading the instructions, the trial court asked if there were “any exceptions or objections with the reading of the instructions,” and defense counsel replied, “No, Your Honor.” The jury returned a verdict of guilty, and Truett was sentenced to twelve months imprisonment, followed by five years probation, as well as restitution to McDonald in the amount of $1,825.

In cases involving the withholding of requested jury instructions, we have explained our standard of review, as follows:

A trial court’s decision on the giving or withholding of a proposed jury instruction is reviewed under the abuse of discretion standard of review. On appeal, the trial court’s ruling on a jury instruction is presumed correct. Appellant has the burden to demonstrate reversible error in the lower court’s refusal to give the requested instruction. Each party has the right to have the court instruct the jury on the law applicable to the evidence under the issues presented. A trial court’s mere failure to give a requested instruction, if erroneous, does not constitute per se reversible error.

Langston v. State, 789 So.2d 1024, 1026 (Fla. 1st DCA 2001) (internal citations and quotations omitted). We crafted the following test to be applied to cases where the trial court refuses to instruct the jury in the manner requested by a defendant:

[T]he failure to give a requested jury instruction constitutes reversible error where the complaining party establishes that: (1) The requested instruction accurately states the applicable law, (2) the facts in the case support giving the instruction, and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case.

Id. (quoting Alderman v. Wysong & Miles Co., 486 So.2d 673, 677 (Fla. 1st DCA 1986)). Finally, it is well-settled that “[a] defendant has the right to a jury instruction on the law applicable to his theory of defense where any trial evidence supports that theory.” Gardner v. State, 480 So.2d 91, 92 (Fla.1985).

Truett relies upon Rostano v. State, 678 So.2d 1371 (Fla. 4th DCA 1996), in support of his argument that the trial court erred in failing to provide the requested alibi instruction when Truett offered the testimony of himself and three other witnesses to show that he was not at the house party when McDonald’s car was damaged. In Rostano, the Fourth District Court of Appeal reversed a conviction where the trial court refused to give an alibi instruction to the jury when the defendant provided testimony from two witnesses indicating that he was in his bedroom while the crime with which he was charged occurred in his garage. Id. at 1373.

Ramsaran v. State, 664 So.2d 1106 (Fla. 4th DCA 1995), is likewise informative in analyzing the issue before us. In Ramsar-an, the court reviewed an appellant’s claim that the trial court erred when it refused to provide the jury with the alibi instruction. Id. at 1107. The reviewing court noted that a trial court is obligated to give the alibi instruction “if there is evidence to support such instruction.” Id. The Ram-saran appellant had testified that, when the crime for which he was charged occurred, he was at his grandmother’s residence, about thirty minutes away from the scene of the crime. Id. The court also observed that the record indicated that the appellant made a timely request for the alibi instruction. Id. The reviewing court reversed the appellant’s conviction and remanded for a new trial. Id.

The State, by contrast, has offered no authority to support its argument that the trial court here did not err in refusing to deliver the requested alibi instruction. The only mention the State makes in relation to Truett’s primary argument is that the trial judge did not weigh the evidence in making his decision on the requested alibi instruction. Rather, the State focuses its argument on the issues of waiver and preservation. The State submits that Truett waived the claim he now asserts on appeal by acceding to the trial judge’s explanation of the alibi defense, and the court’s ruling that Truett had failed to adduce sufficient evidence to justify administering the alibi instruction. The State offers the fact that Truett entered no objections to the reading of the jury instructions as further proof of waiver of the claim of error, and relies upon State v. Lucas, 645 So.2d 425, 427 (Fla.1994), in support thereof.

The State’s reliance on Lucas, however, is misplaced. In Lucas, the Florida Supreme Court held that fundamental error occurs in a homicide case where the trial court failed to give a complete jury instruction on manslaughter and “the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second-degree murder.” Lucas, 645 So.2d at 427. The Florida Supreme Court stated that the only exception to this principle “is where defense counsel affirmatively agreed to or requested the incomplete instruction.” Id. (citing Armstrong v. State, 579 So.2d 734 (Fla.1991)).

Here, Truett did not request the erroneous instruction. Moreover, Truett did not affirmatively agree to the withholding of the alibi instruction. When the trial court asked the parties if they had any objections or exceptions to the reading of the jury instructions, Truett’s counsel replied that he had none. Counsel could reasonably be understood to have had no problems with the instructions that were read, as he and the assistant state attorney agreed to them, and thus responded in the negative. However, this does not mean that defense counsel did not still take exception to the failure to include the alibi instruction. The record contains no affirmative indication that Truett wished to waive his previously lodged request for an alibi instruction, or his claim that the trial court committed error by failing to include the instruction.

The State also contends that, if Truett did not waive his claim of error, then he failed to preserve it for review on appeal. The State asserts that the alleged error is unpreserved because, based on the same facts which the State references in its waiver argument, Truett abandoned his request for the alibi instruction. The State fails to offer any cases which hold that Truett’s conduct, as reflected in this record, amounts to abandonment of his claim. The State then proceeds to discuss the contours of the fundamental error analysis it asserts is appropriate to this appeal.

Truett relies upon Rodriguez v. State, 789 So.2d 513 (Fla. 5th DCA 2001), to rebut the State’s charge that he did not preserve his claim for appeal. In Rodriguez, the reviewing court examined a case where the trial court failed to give a requested jury instruction. Id. at 514. On appeal, the State conceded error, but argued that the appellant neglected to preserve the issue because defense counsel did not “object further following the court’s denial of that request.” Id. The reviewing court rejected that argument and opined, “[ojnce the record shows that counsel requested a specific instruction and the trial court clearly understood the request and just as clearly denied the request, the issue is sufficiently preserved for appellate review.” Id. at 514-15 (internal citation and quotation omitted).

Truett also quotes at length from this court’s opinion in State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006), which, in turn, quoted from the statutory definition of ‘preserved’ set forth in section 924.051(l)(b), Florida Statutes (2005). In the case under review, defense counsel’s actions track closely with the requirements of the statute and the case law. Truett’s counsel filed a notice of intention to claim alibi and submitted a specific, timely request to the trial judge to instruct the jury on the alibi defense. It was clear what Truett was asking for, as well as the grounds for the request, namely, the defense witnesses’ testimonies that Truett was not at the party where McDonald’s car was damaged.

Based on the above authority, we hold that Truett preserved this issue for appeal. Therefore, we apply the three-part Alderman test to determine whether the error constitutes reversible error. 486 So.2d at 877. First, Truett’s requested alibi instruction accurately reflects the law, because he was requesting the Florida Supreme Court approved standard alibi instruction. Second, the facts in the case support giving the instruction because Truett presented -ample testimony that he was at another location when McDonald’s car was damaged. Third, the instruction was necessary to allow the jury to properly evaluate the issues in the case because Truett had introduced evidence that he was not present where and when the crime occurred. Therefore, under the Alderman test, we hold that it was harmful error for the trial court to refuse to give Truett’s requested alibi instruction to the jury.

Accordingly, we REVERSE and REMAND for a new trial.

WOLF, and LEWIS, JJ., concur.


source: Caselaw Access Project

author: BENTON, C.J. WRIGHT, WILLIAM L., Associate Judge,

license: Public Domain

text:
    Kyle WALLING, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4434.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.

      Tatiana A. Bertsch, Equal Justice Initiative, Montgomery, Alabama, and Benjamin W. Maxymuk, Equal Justice Initiative, Montgomery, Alabama, pro hac vice, for Appellant.
    Pamela Jo Bondi, Attorney General, Therese A. Savona, Assistant Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appel-lee.
   BENTON, C.J.

Appellant Kyle Walling appeals his sentence of life without the possibility of parole for a first-degree felony murder committed when he was sixteen, imposed under a mandatory sentencing scheme. Based on Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the state concedes that his sentence is illegal, as a federal constitutional matter. On this issue alone, we reverse and remand for resentencing, following the precedent recently laid down in Washington v. State, 103 So.3d 917 (Fla. 1st DCA 2012).

The crime occurred in March of 2010. Although appellant was waiting a few blocks away when the fatal shot was fired, he participated in planning the victim’s robbery, and supplied the gun. Tried as an adult, appellant was convicted by a six-person jury of first-degree felony murder and attempted robbery. In finding him guilty of attempted robbery, the jury found his accomplice carried the firearm. As then required by statute, the sentencing judge imposed a life sentence without parole. Although still on the books, this statute has not survived the decision in Miller unscathed.

Appellant raises three other issues that merit discussion: 1) whether appellant was entitled to a twelve-member jury under section 913.10, Florida Statutes (2011); 2) whether his confession was coerced or otherwise made involuntarily; and 8) whether the jury was unfairly contaminated by prejudicial statements during voir dire. Because these issues all go to the validity of the conviction, reversal of appellant’s sentence on the authority of Miller does not resolve them.

Florida grants the right to a twelve-person jury in capital cases by statute. Acknowledging that our supreme court has defined a “capital case” as a case where the death penalty itself is a legal possibility, he contends that, in light of Roper, Graham, and Miller, the traditional definition of a capital case, see, e.g.,State v. Hogan, 451 So.2d 844, 845 (Fla.1984) (“For the purposes of defining ‘capital’ under [section 913.10] and rule [3.270, Fla. R.Crim. P.] we hold that a capital case is one where death is a possible penalty.”), no longer controls on the question of the jury’s size. Citing Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which prohibits the death penalty for juvenile offenders, appellant argues that life without parole is for juveniles the equivalent of the death penalty for adults; and thus entitles him to a twelve-member jury under section 913.10, Florida Statutes (2011), which mandates a twelve-member jury for “capital cases.”

Life without parole for a juvenile is not the legal equivalent of death for an adult. Appellant contends nevertheless that he was entitled to be tried by a twelve-person jury. He focuses on the Supreme Court’s comparisons of life without parole for a juvenile to death for an adult in Graham and Miller. But there is a difference between sharing “some characteristics” and a legal equivalence for all purposes. Appellant ignores the starkest factor distinguishing the death penalty from all other forms of punishment: its irrevocability. Unlike an adult condemned to death, a juvenile serving a life sentence without parole can be retried, resentenced or released where factual or other errors require correction. Only if the accused can lawfully be put to death does section 913.10 require a twelve-person jury. Section 913.10 has never been interpreted to apply to cases where death was not a legal possibility.

Even when a state statute defines an offense as a capital crime, section 913.10 does not require a twelve-person jury if federal constitutional requirements rule out death as a possible penalty. Rape was once punishable by death. After the Court decided Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), however, the death sentence was outlawed as punishment for the rape of an adult woman. Our own supreme court applied the rule in Coker to the rape even of a child in Buford v. State, 403 So.2d 943 (Fla.1981). The question later arose whether, where a constitutional rule precluded the possibility of a death sentence, a twelve-member jury was required for the trial of what was still nominally a “capital offense,” so classified by statute.

We were not persuaded that “the fact that Section 794.011(2) defines sexual battery of a child 11 years of age or younger as a ‘capital felony’ means, as appellant urges, that the [ ] procedural requirements [laid down in section 913.10 mandating a twelve-person jury] are still applicable notwithstanding the fact that the capital feature of the crime has been effectively eliminated.” Cooper v. State, 453 So.2d 67, 68 (Fla. 1st DCA 1984). We reach the same conclusion today.

Appellant contends that death is sufficiently different to justify its abolition as a sentence for juveniles altogether, whatever their crimes, but not so different from life without parole that the two sentences can be treated differently when it comes to the size of the jury. Such disparate analyses bespeak no discernible principle. In sum, any capital case for purposes of section 913.10 is a case where the death sentence may lawfully be pronounced.

As for appellant’s confession, we must review the trial judge’s finding that it was voluntary and not the product of coercive or other improper police conduct, in light of the decisions in Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) and Ramirez v. State, 739 So.2d 568, 576 (Fla.1999). Appellant alleges that his confession was indirectly coerced because police detectives told his mother, who then conveyed to him that, if he confessed, he would not be charged with murder. After appellant’s arrest, testimony showed, his mother came to the police station and spoke with two detectives before speaking with appellant privately: She urged honesty on her son and warned him that if he did not “speak up now,” he would be charged as an accessory to murder. She also told him that if he did not talk to the police, they would charge him with murder as a principal.

But the evidence did not persuade the trial judge that any implicit promises conveyed by appellant’s mother were actually made by the police detectives. She testified that the detectives told her appellant would not be charged as the shooter if he was not the shooter, but she did not testify that they said he would not be charged with murder as a quid pro quo for making a statement. In fact, she could not recall any discussion concerning murder charges. The trial court was free to credit the testimony of a detective that

we were relatively sure that [appellant] was not the shooter in the robbery, and that we needed his statement to make sure if he was not the shooter we did not want to have him charged as the shooter. If he committed the robbery, then he would face a charge of robbery, and I told her that he would in fact face a charge.

Any misinformation she conveyed to her son cannot be attributed to impropriety on the part of the detectives that deprived appellant of the ability to make a free choice.

Lastly, we note that appellant failed to preserve the argument that his jury was tainted by prejudicial comments made on voir dire in response to defense counsel’s questions. At no time did appellant object to any of the allegedly prejudicial comments, move to strike the panel, or request individual voir dire. Nor did appellant renew any prior objection to any member of the panel before accepting the jury that was sworn. See Joiner v. State, 618 So.2d 174, 176 (Fla.1993); § 924.051(1)(b), Fla. Stat. (2011). Actual bias or prejudice to appellant that would constitute fundamental error was not proven. See Street v. State, 636 So.2d 1297, 1301 (Fla.1994).

We affirm the conviction but vacate the sentence and remand for resentencing.

ROBERTS, J., concurs.

WRIGHT, WILLIAM L„ Associate Judge, concurs with Opinion.

WRIGHT, WILLIAM L., Associate Judge,

concurring.

I concur in the majority’s decision to remand for resentencing pursuant to Miller v. Alabama, — U.S. -, -, 132 S.Ct. 2455, 2468, 183 L.Ed.2d 407 (2012). I also agree with Judge Wolfs concurring opinion in Washington v. State, 103 So.3d 917 (Fla. 1st DCA 2012) that some guidance should be given to trial judges facing resentencing decisions.

I do not agree with the State’s position that statutory revival now requires the trial judge to resentence appellant to life in prison without the possibility of parole for 25 years. See, § 775.082(1), Fla. Stat. (1993). I again agree with Judge Wolf that this procedure would violate the separation of powers provisions of the Florida Constitution. See art. II, sec. 3, Fla. Const. Further, I think such a procedure would violate the spirit of Miller due to Miller’s emphasis on the availability of discretion by the trial judge. “We require it (sentencer) to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 132 S.Ct. at 2469. Miller does allow the trial court to resentence appellant to a life sentence, but those occasions for the ultimate penalty “will be uncommon.” Id.

A judge who encounters a Miller sentencing or resentencing should conduct a separate hearing before sentencing, allow presentations by the State and the defense, and then decide if a life without parole sentence is indicated. This hearing should be guided by the teaching in Miller and by §§ 985.556 and 985.565, Fla. Stat. (2010). These provisions require a juvenile judge to consider certain factors in determining whether to waive a juvenile to adult court and whether to impose adult or juvenile sanctions on a juvenile prosecuted as an adult. Some of the factors to be considered include the following:

2. Whether the offense was committed in an aggressive, violent, premeditated, or willful manner.
3. Whether the offense was against persons or against property, with greater weight being given to offenses against persons, especially if personal injury resulted.
4. The sophistication and maturity of the offender.
5. The record and previous history of the offender, including:
a. Previous contacts with the Department of Corrections, the Department of Juvenile Justice, the former Department of Health and Rehabilitative Services, the Department of Children and Family Services, law enforcement agencies, and the courts.
b. Prior periods of probation.
c. Prior adjudications that the offender committed a delinquent act or violation of law as a ehild[, greater weight being given if the child has previously been found by a court to have committed a delinquent act or violation of law involving an offense classified as a felony or has twice previously been found to have committed a delinquent act or violation of law involving an offense classified as a misdemeanor.]
d. Prior commitments to the Department of Juvenile Justice, the former Department of Health and Rehabilitative Services, the Department of Children and Family Services, or other facilities or institutions.
6. The prospects for adequate protection of the public and the likelihood of deterrence and reasonable rehabilitation of the offender [by the use of procedures, services, and facilities currently available to the court.]

985.565, Fla. Stat.; 985.556(4)(e)7.c., 8., Fla. Stat. (2010) (bracketed language).

The sentencing court should order a pre-sentence investigation and a pre-dispo-sition report from the Department of Juvenile Justice. After careful review, the judge may choose to make written findings to substantiate a sentence of life without parole. If a life without parole sentence is not justified, then the judge may sentence the offender to any period of years up to forty years. See Kellar v. State, 712 So.2d 1133 (Fla. 1st DCA 1998).

      . The Supreme Court in Graham v. Florida, - U.S. —, -, 130 S.Ct. 2011, 2027, 176 L.Ed.2d 825 (2010) acknowledged that life without parole sentences "share[] some of the characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender's life by a forfeiture that is irrevocable.” Id. The Supreme Court in Miller repeatedly refers to life without parole as the "harshest” possible penalty for juveniles. — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

      . Despite appellant’s mother’s urging him to tell the truth, she also said, "I’m scared to let you talk to [the detective]. Are you sure this is what you want to do? To which appellant responded, "I swear this is — this is the best thing."

      . A venireperson who said, "excuse me but I feel like he's a thug," did not serve on the jury. Defense counsel stated no objection to this comment.

      . On appeal, appellant identifies only one juror who served over objection, and this juror was excused before deliberations.


author: PER CURIAM.

text:
    Stefan JOHNSON, Appellant, v. FLORIDA DEPARTMENT OF REVENUE o/b/o Dawn Johnson, Appellee.
    No. 4D12-2652.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Stefan Johnson, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Dep’t of Revenue v. Jackson, 846 So.2d 486 (Fla.2003).

WARNER, CIKLIN and LEVINE, JJ„ concur.


text:
    Sharina GILBERT and The School Board of Palm Beach County, Petitioners, v. I.W., a minor, through her mother and next friend, S.J., Respondent.
    No. 4D12-3295.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.

      Sheryl G. Wood, General Counsel and Jon Erik Bell of The School Board of Palm Beach County, West Palm Beach, for petitioners.
    Robert M. Pickett of Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari which seeks review of a discovery order incident to the denial of a motion to dismiss a bill of discovery. See JM Family Enters., Inc. v. Freeman, 758 So.2d 1175 (Fla. 4th DCA 2000). “Under the current state of the law, the filing of a bill of discovery is justified only in ‘narrow and limited circumstances.’” Vorbeck v. Betancourt, 107 So.3d 1142 (Fla. 3d DCA 2012) (citing Venezia Lakes Homeowners Ass’n v. Precious Homes at Twin Lakes Prop. Owners Ass’n, 34 So.3d 755, 756 (Fla. 3d DCA 2010)). This case does not present such circumstances. See, e.g., Lewis v. Weaver, 969 So.2d 586 (Fla. 4th DCA 2007); Adventist Health Sys./Sunbelt, Inc. v. Hegwood, 569 So.2d 1295 (Fla. 5th DCA 1990). Rather, respondent’s intended use of the bill exceeds its residual use and is an attempt to see if causes of actions exist for a potential lawsuit.

Accordingly, we quash the order denying Petitioners’ motion to dismiss and the related discovery order.

Petition granted.

WARNER, GERBER and CONNER, JJ., concur.


text:
    ERP OPERATING LIMITED PARTNERSHIP, a foreign limited partnership, d/b/a Gatehouse on The Green Apartments, Appellant, v. Shandalyn SANDERS, as Personal Representative of the Estate of Clara Sanders, deceased, and Chauncey Sanders, deceased, Appellee.
    No. 4D11-2845.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, and Joel R. Wolpe and Alexander Alvarez of Wolpe, Leibowitz, Alvarez & Fernandez, L.L.P., Miami, for appellant.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Thaddeus Hamilton, Plantation, and Jeffrey Allen of Law Office of Jeffrey Allen, Miami, for appellee.
   PER CURIAM.

We reverse the costs judgment in favor of plaintiff, Shandalyn Sanders as Personal Representative of the Estates of Clara Sanders and Chauncey Sanders, in light of this court’s reversal of the underlying judgment in favor of plaintiff. See ERP Operating Ltd. P’ship v. Sanders, 96 So.3d 929, 930 (Fla. 4th DCA 2012).

Reversed and Remanded.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Michael J. BERGERON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3265.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Michael J. Bergeron, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand the trial court’s order denying appellant’s November 20, 2009 postconviction motion. The trial court did not consider or address the merits of fourteen of appellant’s fifteen claims. Appellant, however, failed to timely amend claim five as permitted by the court, and this claim was abandoned. We affirm the trial court’s determination that appellant’s August 27, 2010 motion was not timely filed. We remand this matter for the trial court to consider claims one through four and six through fifteen of appellant’s November 20, 2009 postconviction motion. We express no opinion as to the merits or sufficiency of any of these claims.

Reversed and remanded with directions.

STEVENSON, GROSS and CIKLIN, JJ., concur.


text:
    Gregory Van WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-808.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.

      Gregory Van Wilson, Fort Worth, Texas, pro se.
    Pamela Jo Bondi, Attorney General, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the circuit court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 motion as not having been filed within the rule’s two-year time limit. He argues that he was entitled to tolling of the two-year time limit because he was in federal custody in South Carolina and did not have access to Florida legal materials. See Demps v. State, 696 So.2d 1296, 1299 (Fla. 3d DCA 1997) (the two-year time limit by which the defendant had to file his rule 3.850 motion was tolled during the time he was incarcerated in another state and did not have access to Florida legal materials or a reasonable alternative).

We agree with the defendant’s argument. Nothing in the record conclusively shows that he had access to Florida legal materials or a reasonable alternative within the two-year time limit while he was in federal custody or that he had a meaningful opportunity to file a rule 3.850 motion before he was taken into federal custody. On the contrary, the record shows that federal authorities arrested the defendant shortly after he entered the plea in this case. Moreover, one of his postconviction claims did not arise until he was sentenced for the federal charge.

Accordingly, we reverse and remand for the circuit court to allow the defendant to establish predicate facts to avoid rule 3.850’s two-year time limitation. See Piggott v. State, 14 So.3d 298, 299 (Fla. 4th DCA 2009) (declining to adopt Demps, but remanding to allow the defendant to establish predicate facts to avoid rule 3.850’s two-year time limitation).

Reversed and Remanded.

WARNER, CIKLIN and GERBER, JJ., concur.


text:
    Steven PETRARCA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-622.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2013.
    Glenn H. Mitchell, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Steven Petrarca appeals the final order denying his rule 3.850 motion after a limited evidentiary hearing, seeking review of the trial court’s summary denial of three grounds for relief. Those grounds were not conclusively refuted by the record. To the extent the record established Petrarca was aware that his offense was punishable by up to a thirty-year statutory maximum, it did not conclusively refute his claim that his attorney told him that, unless the trial court sentenced him to a downward departure based on restitution to be paid, he would be sentenced within a “guidelines” range of 34.5 to 57.5 months, though his offenses were committed several years after the Criminal Punishment Code became effective. See Stacy v. State, 885 So.2d 474 (Fla. 4th DCA 2004); see generally Martino v. State, 83 So.3d 927 (Fla. 4th DCA 2012). Accordingly, we reverse and remand for further proceedings.

Reversed and Remanded.

POLEN, CIKLIN and CONNER, JJ., concur.


text:
    Jermaine KIRKLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3414.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2013.
    Jermaine Kirkland, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 775.082, Fla. Stat. (1995) (eliminating the possibility of parole after twenty-five years for the crime of first degree murder).


text:
    Jorge ARNAU, Appellant, v. WINN DIXIE STORES and Sedgwick CMS, Appellees.
    No. 1D12-1318.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.

      Bill McCabe, Longwood, and Michael G. Srebnick, Miami, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant asserts the Judge of Compensation Claims (JCC) erred in denying Claimant’s request for an evaluation by a thoracic surgeon and in denying claims for temporary indemnity benefits. Based on the record, the JCC improperly rejected the opinion of the expert medical advisor (EMA) because no clear and convincing evidence rebutted that opinion. Accordingly, we reverse as to all issues, including the denial of temporary indemnity benefits from July 20, 2009, onward (along with penalties, interest, costs, and attorney’s fees).

Background

While within the scope and course of his employment, Claimant suffered a chest injury in a motor vehicle accident on March 20, 2009. The Employer/Carrier (E/C) accepted the injury as compensable and provided benefits. Claimant’s authorized physician, Dr. Richard Spirer, diagnosed Claimant with a “contusion chest wall” and ordered an MRI. Upon review of the MRI, Dr. Spirer opined that Claimant had a normal xiphoid process, had reached maximum medical improvement (MMI) as of July 1, 2009, and required no further care. After Claimant’s request for a one-time change in physicians, Dr. John Badell was authorized and recommended that Claimant be examined by a thoracic surgeon to determine the cause of Claimant’s continuing chest pain. Contrarily, the E/C’s independent medical examiner (IME), Dr. Jay Stein, opined that such an examination was unnecessary.

To resolve the impasse, the E/C requested the appointment of an EMA, and the JCC appointed Dr. David Campbell. In his EMA report, Dr. Campbell opined that Claimant was not at MMI and that an evaluation by a thoracic surgeon was medically necessary as a result of the injuries Claimant suffered in his industrial accident. Although Dr. Campbell did not testify, the EMA report reflects that he reviewed Claimant’s prior medical reports, medical deposition testimony (including Dr. Spirer’s deposition testimony), records, and detailed the results of his examination of Claimant in making a determination of Claimant’s condition; he opined Claimant was in need of an evaluation by a thoracic surgeon.

In the order on appeal, the JCC rejected the EMA’s medical opinions on the basis that “Claimant’s unreliable testimony undermined the factual predicate upon which the opinion of Dr. Campbell, as [EMA], was premised and must therefore be rejected.” Consequently, the JCC accepted the medical opinions of Dr. Spirer regarding the nature of Claimant’s condition and denied Claimant’s request for an evaluation by a thoracic surgeon. In addition, the JCC denied Claimant’s claim for temporary indemnity benefits based upon the opinion of Dr. Spirer that Claimant reached MMI as of July 1, 2009.

Analysis

Section 440.13(9)(c), Florida Statutes (2008), mandates that the JCC appoint an EMA when there is a disagreement in the opinions of the health care providers. See Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352, 1356 (Fla. 1st DCA 1997). The opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC. See § 440.13(9)(c), Fla. Stat. (2004); see also Mobile Med. Indus, v. Quinn, 985 So.2d 33, 36 (Fla. 1st DCA 2008) (stating EMA’s opinion is presumptively correct unless JCC finds and articulates clear and convincing evidence to the contrary). We have explained that the EMA’s opinion has “nearly conclusive effect.” Amos v. Gartner, Inc., 17 So.3d 829, 831-32 (Fla. 1st DCA 2009) (citing Pierre v. Handi Van, Inc., 717 So.2d 1115, 1117 (Fla. 1st DCA 1998)). When the JCC rejects the opinion of an EMA, the record is reviewed for competent, substantial evidence “to support the determination ... that clear and convincing evidence existed sufficient to reject the EMA opinion.” Manuel v. Amstaff, 915 So.2d 679, 680 (Fla. 1st DCA 2005). The EMA’s opinion should be given even greater deference when the recommendation is in favor of diagnostic evaluation, because this Court has repeatedly held that diagnostic testing and evaluations are always compensable if the purpose is to find out the cause of the injured workers’ symptoms — even if the tests prove the symptoms are unrelated to the compensable injury. See Nealy v. City of W. Palm Beach, 491 So.2d 585, 586 (Fla. 1st DCA 1986); see also Superior Concrete Constr. v. Olsen, 616 So.2d 183, 183 (Fla. 1st DCA 1993); Perry v. Ridgecrest Int’l, 548 So.2d 826, 827-28 (Fla. 1st DCA 1989).

Here, the record does not support the JCC’s finding that clear and convincing evidence existed sufficient to reject the EMA’s opinion. Because Dr. Campbell did not testify in this case, there is no evidence in the record indicating the extent to which, if at all, Dr. Campbell relied on Claimant’s history. Moreover, there is no indication that Dr. Campbell relied on Claimant’s testimony at all, which was what the JCC found lacked credibility. The EMA, who had the benefit of all diagnostic testing, medical records, and the deposition testimony of Dr. Spirer, opined that Claimant “has not been completely evaluated,” and he therefore recommended additional evaluations and diagnostic measures, to include an evaluation by a thoracic surgeon. Dr. Campbell’s EMA opinion was in accord with that of Dr. Badell, who also believed Claimant should be seen by a thoracic surgeon. Further, it is difficult to consider Dr. Spirer’s opinion more reliable than the EMA’s purportedly “skewed and unreliable” opinion when Claimant provided the same history to both physicians. Accordingly, because the JCC erred in not accepting the opinion of the EMA as to the need for an evaluation by a thoracic surgeon, the order on appeal is reversed and remanded for entry of an order awarding the same. Further, because the record does not support the JCC’s finding that clear and convincing evidence existed sufficient to reject the EMA’s opinion that Claimant has not yet reached MMI, we are compelled to reverse as to the denial of temporary indemnity benefits as well.

REVERSED and REMANDED.

LEWIS, WETHERELL, and MAKAR, JJ., concur.


author: BENTON, C.J.

text:
    Hubert DAVIDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3696.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.
    Matt Shirk, Public Defender, Richard Gordon, Assistant Public Defender, and Michelle Barki, Assistant Public Defender, Jacksonville, for Petitioner.

      Pamela Jo Bondi, Attorney General, and Thomas Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   BENTON, C.J.

Hubert Davidson seeks a writ of certio-rari that would allow the video recording or, alternatively, a recording by a court reporter, of a psychological evaluation the state requested he submit to before a trial that has been scheduled to decide whether the state can continue to detain him as a sexually violent predator. We deny the petition.

The state began proceedings in 2000 to commit petitioner involuntarily as a sexually violent predator under section 894.9135 et seq., Florida Statutes (2000). A former state prisoner who has served his sentence, he faces continued civil confinement as a sexually violent predator, if a jury concludes he meets the statutory definition. After the circuit court denied a motion to dismiss filed in 2010, he filed a petition for writ of prohibition here, which we denied. See Davidson v. State, 77 So.3d 1258 (Fla. 1st DCA 2011) (Table). A trial date has now been set. As part of its preparation for the trial determining whether he qualifies as a sexually violent predator subject to detention, even though his sentence has expired, the state requested a mental status evaluation.

In order to obtain a writ of cer-tiorari, the petitioner must demonstrate “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post-judgment appeal.” Byrd v. S. Prestressed Concrete, Inc., 928 So.2d 455, 457 (Fla. 1st DCA 2006) (internal quotations and citations omitted). A ruling constitutes “a departure from the essential requirements of the law” when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983).

Parties facing mental, as well as physical, examinations have successfully invoked our certiorari jurisdiction to secure appropriate protections. Our supreme court has held that the examinee in a physical examination is entitled to have an attorney present as well as a videographer or court reporter. See U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 698-701 (Fla.2000). Six years later, this Court held that examinees are entitled to have an attorney present at examinations conducted pursuant to Florida Rule of Civil Procedure 1.360 “regardless of whether the examination is a physical, psychiatric or psychological one.” Byrd, 928 So.2d at 459.

In so holding, we relied on Freeman v. Latherow, 722 So.2d 885 (Fla. 2d DCA 1998) and Brompton v. Poy-Wing, 704 So.2d 1127 (Fla. 4th DCA 1998). In Freeman, the Second District said that the opposing party had not met its burden to demonstrate why an attorney (monitoring from an adjoining room) could not be present and why the examination could not be videotaped. 722 So.2d at 886. See also Maraman v. State, 980 So.2d 1096, 1099 (Fla. 2d DCA 2008) (granting certiorari to allow a videographer to record a sanity examination where a criminal defendant had raised insanity as a defense to murder). In Brompton, the Fourth District held that the minor plaintiff in a medical malpractice suit was entitled to have his attorney present at a court-ordered neu-ropsychological examination, absent some case-specific factor not proven there. 704 So.2d at 1128.

The proposed mental evaluation that has given rise to the present proceedings is not a section 394.913(3)(c) “personal interview” or part of the multidisciplinary team assessment that must be done before a petition for involuntary commitment as a sexually violent predator can be filed: petitioner has already been assessed by a “multidisciplinary team” which included two licensed psychiatrists or psychologists. See § 394.913(3)(b), Fla. Stat. (2000). Before the Department of Children and Families can make a recommendation to the state attorney that a person meets the definition of a sexually violent predator, he must be offered a “personal interview” by the multidisciplinary team. See § 394.913(3)(c), Fla. Stat. (2000). As part of this process, petitioner was previously evaluated by two separate doctors on his team, and was interviewed by at least one of them. Only because Dr. Waldman became unavailable to testify at trial did the state seek an additional expert witness and a third evaluation. This expert’s evaluation is to occur entirely outside the multidisciplinary team assessment phase, and is analytically indistinguishable from the adversarial examinations that occur, for example, in personal injury suits where mental status is an issue.

We assume for purposes of decision that the cases governing mental examinations in other forensic contexts apply with equal force in sexually violent predator civil confinement proceedings. See Maraman, 980 So.2d at 1099 (the defendant’s liberty interests are far higher stakes than a civil litigant’s monetary concerns). By statute, the civil rules of procedure apply in these eases. See § 394.9155(1), Fla. Stat. (2000) (“In all civil commitment proceedings for sexually violent predators under this part, the following shall apply: (1) The Florida Rules of Civil Procedure apply unless otherwise specified in this part.”); Kansas v. Hendricks, 521 U.S. 346, 369, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (“We therefore hold that the [Kansas Jimmy Ryce] Act does not establish criminal proceedings and that involuntary confinement pursuant to the Act is not punitive.”). Evaluations which may affect the public safety and may extinguish the subject’s physical liberty indefinitely require safeguards equal to, if not greater than, the safeguards available during evaluations in personal injury cases.

But petitioner’s specific contentions in the present case — taken in the context of the state’s concessions below — leave us unpersuaded. Petitioner argues that merely allowing his attorney to be present is not enough and that “the only way to preserve the integrity of the evaluation” is to produce a video recording or a court reporter’s transcript. Petitioner’s reasons for requesting a videographer, summarized at the evidentiary hearing below, are to ensure the “integrity of the process is preserved,” and that petitioner’s responses are accurately recorded in the event of a dispute involving credibility issues. But, as the state points out, an audio recording, which the state agreed to, fulfills all these purposes, and petitioner has failed to explain why an audio recording would be inadequate.

All parties agree that petitioner is entitled to the recording of his psychological or psychiatric evaluation in some fashion. But we agree with the state that the essential requirements of law do not mandate either a video recording or a court reporter’s transcript, where the state has agreed to both an audio recording and counsel’s monitoring in real time. Because the lower court’s denial of petitioner’s motion was not a departure from the essential requirements of law, we deny the petition for writ of certiorari.

ROBERTS and RAY, JJ., concur.

      . After a probable cause finding was made in purported conformity with section 394.915, Florida Statutes (2000), petitioner was transferred directly from prison to the Florida Civil Commitment Center. In 2001, his lawyer filed a motion to vacate the order determining probable cause on grounds that the "affidavit” supporting probable cause was not sworn. No action was taken on the motion until Kephart v. Hadi, 932 So.2d 1086, 1094 (Fla.2006) (holding probable cause petitions for Jimmy Ryce cases must be supported by sworn proof) came down. After Kephart, a duly sworn affidavit was filed in petitioner’s case, and the state is preparing for trial.

      . Brompton v. Poy-Wing, 704 So.2d 1127, 1128-29 (Fla. 4th DCA 1998) did not discuss video recording. In Brompton, the trial court had ruled that a court reporter could be in attendance and the defense never objected to the presence of the minor plaintiff’s mother.

      . The state agreed to allow petitioner’s counsel to monitor in real time (although the state did not specify whether the attorney could be present in the same room).

      . In fact, petitioner confusingly requested in his reply that the court' “grant the writ of certiorari and direct the lower court to allow for a video or audio taping of the proceedings,” despite the state having already acceded to an audio recording. .Taken as a whole, the petition for certiorari is fairly construed, however, as requesting specifically a video recording or alternatively a court reporter.


author: GUIDRY, Justice.

text:
    In re Justice of the Peace Thomas THREET, Parish of Calcasieu, Ward 6, State of Louisiana.
    No. 2012-O-1501.
    Supreme Court of Louisiana.
    Dec. 4, 2012.
    Office of Special Counsel, Michael D. Bewers, Barbara Lynn Edin, for applicant.
    Thomas Threet, in Proper Person, for respondent.
    Clare Dolores Fiasconaro, Interim Commission Counsel.
   GUIDRY, Justice.

11 This matter arises from a recommendation of the Judiciary Commission of Louisiana (“Commission”) regarding the failure of Justice of the Peace Thomas Threet, Calcasieu Parish, Ward 6, to comply with the financial ’ reporting requirements of Louisiana Supreme Court Rule XXXIX for calendar year 2010. For the reasons set forth below, we find the record establishes by clear and convincing evidence that Justice of the Peace Threet has failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting him to a civil monetary penalty. We further find that his continuing failure to comply with the financial disclosure requirement has been willful and knowing. After considering the facts, circumstances, and applicable law, Justice of the Peace Threet is ordered to pay a civil penalty in the amount of $2,500.00, plus costs of $253.20. In addition, Justice of the Peace Threet is ordered to file his financial disclosure statement for 2010 no later than fifteen days from the finality of this judgment.

FACTS AND PROCEDURAL HISTORY:

Supreme Court Rule XXXIX requires the filing of annual financial disclosure statements by judges and justices of the peace. See In re: Thomas, 11-0572, p. 2 (La.7/1/11), 66 So.3d 466, 467; In re: Sanborn, 10-2051, p. 2 (La.11/30/10), 50 So.3d 1279. Pursuant to Section 3 of the rule, every elected justice of the peace must file his or her financial statement by May 15th of each year, using | ?a form prescribed by the Judicial Administrator’s Office (“JAO”) for that purpose. La. Sup.Ct. Rule XXXIX, §§ 3(A) and (B). We have discussed this rule and its requirements pertaining to justices of the peace in several cases. See, e.g., In re: Hoffman, 11-0417 (La.7/01/11), 66 So.3d 455. The instant case is one of three cases decided this date involving a justice of the peace who has been charged with failing to file timely the personal financial disclosure statement required by Rule XXXIX for calendar year 2010. See In re: 29-337612Myers, 12-1500 (La. 12/04/12); In re: Landry, 12-1946 (La.12/04/12).

The first financial statements required of justices of the peace were due for calendar year 2009, to be filed no later than May 15, 2010. However, Justice of the Peace Threet (hereinafter, “Respondent”) did not file his 2009 financial statement until January 10, 2011, after the Commission filed a Formal Charge against him. On October 25, 2011, this court imposed a $300 civil penalty upon Respondent for his willful and knowing violation of Rule XXXIX. In re: Threet, 11-0875 (La.10/25/11), 74 So.3d 679 (Threet I).

Respondent’s 2010 financial statement was due on May 15, 2011. However, it was not received by that date. Accordingly, on May 27, 2011, the JAO sent Respondent a notice of delinquency by certified mail advising him that the 2010 Statement “must be filed no later than fourteen (14) business days after receipt of this notice of delinquency, or by June 21, 2011.” The notice of delinquency also stated that failure to file the 2010 Statement by the deadline “shall result in referral to the Judiciary Commission and the imposition of penalties as provided in Section 4 of Rule XXXIX.” On June 1, 2011, Respondent’s wife signed for the certified mail containing the delinquency notice, but still he did not submit the 20101 .¡Statement, On June 30, 2011, the JAO referred the matter to the Commission, based upon Respondent’s failure to timely file the 2010 Statement.

On December 12, 2011, the Commission filed a Formal Charge against Respondent. The Formal Charge was personally served upon Respondent on December 20, 2011. Respondent did not file an answer to the Formal Charge, and he still has not filed his 2010 Statement.

This matter was set for a hearing before a hearing officer on March 12, 2012. Respondent did not appear at the hearing, which proceeded in his absence. Following the hearing, the hearing officer filed findings of fact and conclusions of law with the Commission. In his report, the hearing officer found that Respondent failed to timely file his 2010 Statement, and that his failure was willful and knowing. The Commissioners then invited, but did not require, Respondent to appear before them on April 20, 2012, to make a statement in response to the hearing officer’s report. Respondent did not attend the April 2012 meeting or file a brief in the matter.

On June 29, 2012, the Commission filed its recommendation in this court. In its report, the Commission adopted the hearing officer’s proposed conclusions of fact and law, and found the allegations of the Formal Charge were proven by clear and convincing evidence. Indeed, the Commission observed that it is “hard to imagine a more egregious example of deliberate disregard for, and willful disobedience of, the Reporting Rule” than that demonstrated here:

... As did the hearing officer, the Commission found it extremely troubling that JP Threet made absolutely no effort to comply with the Reporting Rule for the year 2010 even after appearing before the Commission and the Court in the prior proceeding and testifying under oath that he would comply in a timely manner in the future. He chose to do nothing to bring himself into compliance with the Reporting Rule for the year 2010 after making those statements, even after repeated contacts from the OJA and the Commission and the rendition of this Court’s opinion in the prior case. As of the time of the hearing in this case, he still had not filed his 2010 Statement, h which was by then more than eight months late. He chose not to appear at the hearing and has offered no explanation for the delay.
JP Threet has shown a complete lack of respect for the deadlines imposed on him by the Court, even in the face of past leniency by the Court for his first ■willful and knowing violation of the Reporting Rule. Even if he does not consider the reporting requirements to be a matter of any importance, he should nevertheless understand he is obligated to comply with the Court’s rules. The Commission recommends the maximum penalty be imposed upon him in this case to impress upon him the importance of taking his financial disclosure obligations as an elected judicial officer seriously.

For his willful and knowing conduct, the Commission recommended that Respondent be ordered to pay the maximum penalty of $50 per day from June 21, 2011 (the deadline in the delinquency notice) to the date he submits his 2010 Statement or the date the court issues its decision, whichever occurs first. The Commission also recommended that he be cast with $253.20 in costs. See La. Sup.Ct. Rule XXXIX, § 4(F)(7).

DISCUSSION

After our review of the facts and applicable law, we find the record establishes by clear and convincing evidence that Respondent did not timely file his financial disclosure statement. See Threet I, p. 8, 74 So.3d at 684; In re: Sanborn, p. 4, 50 So.3d at 1281. Indeed, Respondent has not filed his 2010 Statement as of the date of this judgment. Consequently, we further find that Respondent’s violation of the reporting rule has been “willful and knowing” under Rule XXXIX, Section 4(F)(8), as both the hearing officer and the Commission concluded. There can be no doubt that Respondent knew or should have known of the need to file his 2010 Statement in a timely manner given his involvement in prior proceedings before this court concerning his failure to file his 2009 Statement timely. Indeed, we found that Respondent’s failure to file his 2009 Statement timely was a “willful and knowing” violation of the rule. Threet I, p. 9, 74 So.3d |s684. As we pointed out in Respondent’s prior case before this court, the financial disclosure form required of justices of the peace by Rule XXXIX is quite short and simple, and would have taken a minimal amount of time to complete. Respondent’s continuing failure to comply with the reporting rule for 2010 certainly demonstrates bad faith; therefore, we conclude his conduct constitutes a willful and knowing violation of Rule XXXIX.

We next decide the appropriate penalty for Respondent’s failure to timely file his financial disclosure statement under Rule XXXIX for 2010. In Threet I, we imposed a civil penalty of $300 for Respondent’s failure to timely file his 2009 Statement. Because this is Respondent’s second violation of the financial disclosure rule, a violation that continues because Respondent has yet to file his 2010 Statement as of thé date of this judgment, we find that a civil penalty of $2,500 is appropriate. We further find Respondent should be cast with costs in the amount of $258.20.

CONCLUSION

We find the record establishes by clear and convincing evidence that Justice of the Peace Threet has failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting him to a civil monetary penalty. We further find that his continuing failure to comply with the financial disclosure requirement has been willful and knowing. Accordingly, it is ordered that Justice of the Peace Threet pay a civil penalty to the State of Louisiana, Judicial Branch, in the amount of $2,500.00, plus costs in the amount of $253.20, no later than thirty days from the finality of this judgment. In addition, Justice of the Peace Threet is ordered to file his 2010 financial disclosure statement no later than fifteen days from the finality of this judgment. Failure to comply with the orders of this court may result in a finding of contempt. See In re: Hoffman, 11-0417 (La.6/22/12), 92 So.3d 334; In re: Cook, 11-0715 (La.6/22/12), 92 So.3d 333.

      . At the hearing in Threet I, Respondent expressed regret for his failure to file his 2009 Statement timely, and assured the hearing officer that he would make sure he was in compliance with the financial disclosure rule in the future.


text:
    In re Justice of the Peace Stacie P. MYERS, Pointe Coupee Parish, District 4, State Of Louisiana.
    No. 2012-O-1500.
    Supreme Court of Louisiana.
    Dec. 4, 2012.

      Office of Special Counsel, Michael D. Bewers, Diana Elizabeth Velez, for application.
    Stacie P. Myers, in Proper Person, for respondent.
    Clare Dolores Fiasconaro, Interim Commission Counsel.

      . Although Supreme Court Rule XXXIX, § 4(F)(7) now permits the court, in its discretion, to assess all or a portion of the costs incurred by the Office of Special Counsel and the Commission as part of the penalty in financial disclosure cases, the Commission did not seek reimbursement of costs in this case because Respondent fully stipulated to her misconduct.

   GUIDRY, Justice.

| ,This matter arises from a recommendation of the Judiciary Commission of Louisiana (“Commission”) regarding the failure of Justice of the Peace Stacie P. Myers, Point Coupee Parish, District 4, to comply with the financial reporting requirements of Louisiana Supreme Court Rule XXXIX for calendar year 2010. For the reasons set forth below, we find the record establishes by clear and convincing evidence that Justice of the Peace Myers failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting her to a civil monetary penalty. We further find that her failure to comply with the financial disclosure requirement was willful and knowing. After considering the facts, circumstances, and applicable law, Justice of the Peace Myers is ordered to pay a civil penalty in the amount of $1,500.00.

FACTS AND PROCEDURAL HISTORY:

Supreme Court Rule XXXIX requires the filing of annual financial disclosure statements by judges and justices of the peace. See In re: Thomas, 11-0572, p. 2 (La.7/1/11), 66 So.3d 466, 467; In re: San-born, 10-2051, p. 2 (La.11/30/10), 50 So.3d 1279. Pursuant to Section 3 of the rule, all elected justices of the peace must file his or her financial statement by May 15th of each year, using a form prescribed by the Judicial Administrator’s Office (“JAO”) for that purpose. Rule XXXIX, Sections 3(A) and (B). We have discussed this rule and its requirements pertaining to justices of the peace in several cases. See, e.g., In re: Hoffman, 11-0417 (La.7/01/11), 66 So.3d 455. The instant case is one of three cases decided this date involving a justice of the peace who has been charged with failing to file timely the personal financial disclosure statement required by Rule XXXIX for calendar year 2010. See In re: Threet, 12-1501 (La.12/04/12); In re: Landry, 12-1946 (La.12/04/12).

The first financial statements required of justices of the peace were due for calendar year 2009, to be filed no later than May 15, 2010. However, Justice of the Peace Myers (hereinafter “Respondent”) did not file her 2009 financial statement until April 13, 2011, after the Commission filed a Formal Charge against her and two months after the matter was heard by a hearing officer. On October 25, 2011, this court imposed a $500.00 civil penalty upon Respondent for her willful and knowing violation of Rule XXXIX. In re: Myers, 11-0874 (La.10/25/11), 74 So.3d 672 (“Myers I”).

Respondent’s 2010 financial statement was due on May 15, 2011. However, it was not received by that date. Accordingly, on May 27, 2011, the JAO sent Respondent a notice of delinquency by certified mail advising her that the 2010 Statement “must be filed no later than fourteen (14) business days after receipt of this notice of delinquency, or by June 21, 2011.” The notice of delinquency also stated that failure to file the 2010 Statement by the deadline “shall result in referral to the Judiciary Commission and the imposition of penalties as provided in Section 4 of Rule XXXIX.” The certified mail containing the delinquency notice was subsequently returned to the JAO unclaimed.

On June 30, 2011, the JAO referred the matter to the Commission, based upon Respondent’s failure to file the 2010 Statement timely. Respondent eventually filed the 2010 Statement on December 29, 2011, after the Commission filed a Formal Charge against her, and two months after this court’s opinion in Myers I. In her answer to the Formal Charge, Respondent stated that she | .^¡mistakenly believed her 2010 Statement was mailed with her report for 2009. She apologized for her error and pledged that she will do her “best to turn in future reports on time!”

Prior to a hearing before a hearing officer, the parties entered into a stipulation of facts in which Respondent admitted the pertinent factual allegations of this matter, including the following:

• This is the second consecutive year that JP Myers has failed to timely file her annual Statement with the [JAO] as required by Rule XXXIX, as she was fined by the Supreme Court for failing to timely file her 2009 Statement.
• JP Myers made a purposeful choice not to file her 2010 Statement because she desired not to take the time, trouble and effort to complete the form with the knowledge that it is required to be filed by a certain date.
• By reason of JP Myers’s conduct, as stipulated herein, JP Myers’s violation of Rule XXXIX was willful and knowing.

The Commission subsequently approved the stipulated facts and agreed to dispense with convening a hearing. The Commissioners invited, but did not order or require, Respondent to appear before them on April 20, 2012, to make a statement concerning the stipulations and the penalty issue. Respondent did not attend the April meeting or file a brief in the matter.

On June 29, 2012, the Commission filed its recommendation in this court. In its report, the Commission found the stipulated facts are sufficient to prove the allegations of the Formal Charge by clear and convincing evidence. The Commission observed that as a result of her involvement in prior proceedings, both before the Commission and before this court, Respondent knew or should have known of the need to timely file her 2010 Statement. For her willful and knowing conduct, the Commission recommended that Respondent be ordered to pay a ^penalty of $6,720, or $35 per day for the 192 days that elapsed between June 21, 2011 (the deadline set forth in the delinquency notice) to December 29, 2011 (the date Respondent submitted her financial disclosure statement). Regarding the $35 per day figure, the Commission stated:

The Commission found it extremely troubling that JP Myers has continued to exhibit blatant disregard for the Reporting Rule, even after appearing before the Commission and the Court in the past and being assessed with a $500.00 penalty by the Court for her first willful and knowing violation of the rule. It is obvious JP Myers has not benefited from the leniency shown to her by the Court in the prior case, nor has she made any effort to modify her behavior to comply with the reporting requirements to which she, like all other justices of the peace in this State, is subject.
The Commission considered JP Myers’ second instance of deliberate noncompliance with the Reporting Rule to be a very serious matter, for which a substantial monetary penalty should be imposed. As noted above, the rule provides for a penalty of up to $50.00 per day for justices of the peace. JP Myers ultimately did file her 2010 Statement, albeit many months late, and she cooperated with the OSC after a formal charge was brought against her by entering into stipulations that made it unnecessary to conduct a formal hearing. Under these circumstances, the Commission recommends the Court impose on JP Myers a civil penalty of $35.00 per day for one hundred ninety-two days of non-compliance, from June 21, 2011, the extended deadline in the Delinquency Notice, until December 29, 2011, the date of filing of her 2010 Statement, for a total penalty of $6,720.00.

DISCUSSION

After our review of the facts and applicable law, we find the record establishes by clear and convincing evidence that Respondent did not timely file her financial disclosure statement. See Myers I, pp. 7-8, 74 So.3d 677-78; In re: Sanborn, p. 4, 50 So.3d at 1281. We further find that Respondent’s violation of the reporting rule was “willful and knowing” under Rule XXXIX, Section 4(F)(8), as Respondent stipulated before the hearing officer. There can be no doubt that Respondent knew or should have known of the need to file her 2010 Statement in a timely manner given her involvement in prior proceedings before this court | ^concerning her failure to file her 2009 Statement timely. Indeed, we found that Respondent’s failure to file her 2009 Statement timely was a “willful and knowing” violation of the rule. Myers I, pp. 8-9, 74 So.3d 678-79. As we pointed out in Respondent’s prior case before this court, the financial disclosure form required of justices of the peace by Rule XXXIX is quite short and simple, and would have taken a minimal amount of time to complete. Accordingly, we conclude Respondent acted in bad faith and, therefore, her conduct was a willful and knowing violation of Rule XXXIX.

We next decide the appropriate penalty for Respondent’s failure to file timely her financial disclosure statement under Rule XXXIX for 2010. In Myers I, we imposed a civil penalty of $500 for Respondent’s failure to timely file her 2009 Statement. Because this is Respondent’s second violation of the financial disclosure rule, we find that a civil penalty of $1,500 is appropriate.

CONCLUSION

We find the record establishes by clear and convincing evidence that Justice of the Peace Myers failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting her to a civil monetary penalty. We further find that her failure to comply with the financial disclosure requirement was willful and knowing. Accordingly, it is ordered that Justice of the Peace Myers pay a civil penalty to the State of Louisiana, Judicial Branch, in the amount of $1,500.00, no later than thirty days from the finality of this judgment.