author: TAYLOR, J.

text:
    Richard WILLIAMS, Appellant, v. Lauren LUTRARIO, Appellee.
    No. 4D13-415.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2013.
    Rehearing Denied Dec. 27, 2013.
    Certification to S.Ct. Denied Jan. 8, 2014.

      Gary S. Israel, Orlando, for appellant.
    Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellee.
   TAYLOR, J.

The father appeals a non-final order denying his second amended motion for contempt and enforcement of a timesharing agreement. The mother cross-appeals the trial court’s determination that the father was entitled to a federal income tax exemption for the minor child. We affirm the order denying the father’s motion for contempt, but reverse the order finding the father entitled to a tax exemption.

The parties’ minor child was born on August 29, 2008. On September 29, 2010, the trial court entered a final judgment of paternity, which incorporated a parenting plan. Under the plan, the father had time-sharing of the parties’ child on weekends. And although the father disputes this point, the plan provided that summer time-sharing was to begin after the minor child started school.

The parties were to alternate the Income Tax exemption for the minor child, with the father being entitled to the exemption on odd-numbered years, and the mother being entitled to the exemption on even-numbered years. The final judgment also provided that the father was obligated to pay $226 per month in regular child support payments, plus an arrearage of $6,593 to be repaid at the rate of $100 per month.

Following an appeal by both parties of the final judgment of paternity, we affirmed the paternity judgment in most respects, but reversed the trial court’s failure to give the father credit for $850 in child support payments. We also remanded with instructions that the final judgment of paternity be amended to require the mother to execute a waiver of the dependency exemption only if the father “is current in support payments.” See Williams v. Lutrario, 81 So.3d 589, 589 (Fla. 4th DCA 2012).

Consistent with our instructions, the trial court entered an amendment to the final judgment of paternity which gave the father credit for the $850 in child support and added the following language to the final judgment: “The Mother, the custodial parent, is required to execute a waiver of the dependency exemption in the odd calendar years, only if the Father is current in his support payments.”

The parenting plan set forth in the final judgment included the following section regarding scheduling:

VI. SCHEDULING
1. School Calendar
If necessary, on or before August 1st of each year, both parents should obtain a copy of the school calendar for the next school year. The parents shall discuss the calendars and the time-sharing schedule so that any differences or questions can be resolved.
The parents shall follow the school calendar of: (Choose all that apply)
[X] the school calendar for PALM Beach County.
3. Winter Break
[X] The [] Mother [X] Father shall have the child(ren) for the entire Winter Break during [X] odd-numbered years ... every year. BEGINS ONCE CHILD STARTS GRADE K. Mother shall have the child the entire winter break in even years.
* * *
4. Spring Break (Choose only one)
[X] The parents shall alternate the entire Spring Break with the Mother having the child(ren) during the [] odd-numbered years [X] even numbered years. BEGINS ONCE CHILD STARTS GRADE K.
5. Summer Break (Choose only one)
[X] The parents shall divide the child’s Summer Break. During [X] even numbered years, the [] Mother [X] Father shall have the child(ren) from _one day_after school is out for 4 consecutive weeks. The other parent shall have the child(ren) for the remainder of the summer break. The parents shall alternate the first and second portions of the Summer Break in this fashion each year unless otherwise agreed in writing.

In June 2012, the father filed his Second Amended Motion for Contempt, claiming that he was denied summer break time-sharing and that he was denied the IRS tax exemption for the minor child for the year 2011.

Without warning, and without waiting for a hearing on his motion, the father took the three-year-old child in July 2012 and kept her for four consecutive weeks, asserting that the parenting plan gave him the right to do so. The mother maintained that the father was not entitled to four consecutive weeks of visitation time in the summer until the child started school. Consequently, she filed a verified emergency motion for return of the child. The trial court, however, denied the mother’s request for an emergency hearing.

In November 2012, the trial court held a hearing on the father’s Second Amended Motion for Contempt. The father stipulated that the child was not yet in school and would not begin kindergarten until August 2013. After reviewing the language of the final judgment, the trial court noted that it “plainly states that summer timesharing is to occur after the minor child starts school.” The trial court found that the mother was not in contempt “for failing to provide the child to the [father] for summer timesharing” in its Order on Respondent’s Second Amended Motion for Contempt and Enforcement.

We agree with the trial court’s interpretation of the summer break provision of the parenting plan and affirm the court’s ruling on this issue. By referring to the child’s summer break and stating that the father shall have the child in even numbered years from one day after school is out, the Summer Break provision is necessarily referring to a time when the child is of school age and is on break from school. We conclude that the Summer Break provision is unambiguous even without the additional language: “BEGINS ONCE CHILD STARTS GRADE K”

At the hearing on the father’s Second Amended Motion for Contempt, the trial court also heard testimony regarding the tax exemption dispute. The father claimed he was entitled to the IRS tax exemption for 2011, testifying that he “faithfully paid” child support of $226 plus $100 in arrearages every month since he received the final judgment. After hearing conflicting testimony from both parties regarding whether the father was current in his child support, the trial judge stated that she would take judicial notice of the clerk’s child support registry/ledger. The ledger reveals that the father was never current on his child support payments throughout the entire year of 2011. He was current on his child support payments only by the time of the November 2012 hearing.

The trial court entered an order stating the following: “The Court finds that Respondent/Father is current in his child support and will therefore be entitled to the Federal Income Tax Deduction for the minor child effective immediately. The Petitioner/Mother shall not take the deduction beginning in 2012.”

The mother cross-appealed the trial court’s ruling regarding the income tax exemption, arguing that the father was not current in his child support payments in 2011 and thus was not entitled to the IRS tax exemption for the minor child.

A trial court’s finding of fact which rests on undisputed evidence is in the nature of a legal conclusion and is subject to the “clearly erroneous” standard of review. See Holland v. Gross, 89 So.2d 255, 258 (Fla.1956). Where a trial court has misapplied the law to the established facts, or where a finding of the trial court is without support of any substantial evidence or is clearly against the weight of the evidence, “then the decision is ‘clearly erroneous’ and the appellate court will reverse because the trial court has ‘failed to give legal effect to the evidence’ in its entirety.” Id. Because the trial court’s finding was based upon the Clerk’s child support ledger and neither party challenged the accuracy of ledger, we apply the “clearly erroneous” standard of review.

Here, the final judgment provided that the parties were to alternate the income tax exemption for the minor child, with the father being given odd years and the mother being given even years. However, the father’s alternating years for the IRS tax exemption as reflected in the paternity judgment are conditioned on the father being current in his support payments. See Williams v. Lutrario, 81 So.3d 589 (Fla. 4th DCA 2012); § 61.30(11)(a)(8), Fla. Stat. (2011).

At the time of the November 2012 hearing, the only odd numbered year for which the father would have been entitled to the tax exemption was the year 2011, but his entitlement was conditioned upon his being current in child support payments. The Clerk’s child support ledger, which the trial court judicially noticed, clearly shows that the father was not current in his child support at the end of the year 2011. In fact, the father was never current in his child support throughout the entire year of 2011.

To be sure, the father’s child support was brought current by the time of the November 2012 hearing. This presumably explains why the trial court found that the father was “current” in his child support. However, the relevant question is not whether the father was current in his child support at the time of the contempt hearing, but rather whether the father was current in his child support at the end of the relevant tax year so as to be entitled to the dependency tax exemption under section 61.30(ll)(a)(8). The mother cannot be held in contempt for taking the exemption for a tax year during which the father was never current in his support payments, even though the father later became current on his payments. Accordingly, because the father was not current in support payments at the end of the year 2011, the mother was not required to execute a waiver of the dependency exemption for that tax year.

Accordingly, we reverse the order in part and remand with directions for the trial court to delete the following language from the order on appeal: “The Court finds that Respondent/Father is current in his child support and will therefore be entitled to the Federal Income Tax Deduction for the minor child effective immediately. The Petitioner/Mother shall not take the deduction beginning in 2012.”

Reversed in part and Remanded.

DAMOORGIAN, C.J., and KLINGENSMITH, J„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ernest JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-512.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    Rehearing Denied Feb. 17, 2014.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Ernest Johnson, a juvenile, was convicted of first-degree murder and armed robbery. We affirm his convictions without further comment. However, we vacate Johnson’s sentence for first-degree murder and remand for resentencing. When the trial court imposed Johnson’s sentence, it failed to conduct an individualized examination of Johnson’s mitigating circumstances as required by Washington v. State, 103 So.3d 917, 920 (Fla. 1st DCA 2012). See also Miller v. Alabama, _ U.S. _, _, 132 S.Ct. 2455, 2475, 183 L.Ed.2d 407 (2012) (holding that “[b]y requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment....”). We, therefore, vacate Johnson’s sentence for first-degree murder and remand for resentencing in accordance with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


author: RAY, J.

text:
    Eric Allen KAUK, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D12-6031.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.
    Rehearing Denied Feb. 2, 2014.

      Gregory Turner Elliott of Ellioti>-Ber-ger, P.A., Largo, for Appellant.
    Jessica L. Schuh Harmsen, Assistant General Counsel, Department of Financial Services, Tallahassee, for Appellee.
   RAY, J.

Eric Allen Kauk appeals from a final order of the Department of Financial Services denying his application for a license as a “resident life including variable annuity and health insurance” agent and permanently barring his licensure as an insurance agent in Florida. Mr. Kauk raises three issues, one of which has merit. He argues, and we agree, that the Department erred by imposing a per se bar to his licensure due to his convictions for manufacturing and passing counterfeit Federal Reserve notes because Mr. Kauk’s civil rights have been restored in all relevant respects. Although the Department provided an alternative analysis to justify denying the present license application, when compared with the findings the Department adopted, that analysis can only be interpreted as a misapplication of case law. Because binding precedent establishes that a per se bar cannot be constitutionally applied to Mr. Kauk, and the findings the Department adopted are inconsistent with the result it reached, we reverse and remand.

I.

In 1998, when Mr. Kauk was twenty-two years old, he and a coworker printed approximately 390 counterfeit $10 bills and purchased $2,000 in money orders with the counterfeit bills. Mr. Kauk used some of the money orders to obtain $1,400 in cash and pay his state probation officer. Mr. Kauk and the coworker discussed traveling to Georgia to pass more of the counterfeit money, but the Secret Service intervened before any such plans came to fruition. Mr. Kauk admitted his role in the scheme and, in 1999, pled guilty to manufacturing and passing counterfeit Federal Reserve notes, which constitute two separate felonies under federal law.

Mr. Kauk was sentenced to eleven months’ imprisonment followed by two years’ probation and ordered to pay restitution. As of January 2003, Mr. Kauk had served his sentence, successfully completed his probation, and paid his restitution. In June 2009, Mr. Kauk applied for licen-sure as a “resident life including variable annuity and health insurance” agent. Under the law then in effect, the Department determined that Mr. Kauk would be eligible to apply again on May 11, 2012. In the meantime, in February 2010, the Governor, with the concurrence of the requisite members of the Cabinet, restored all the civil rights Mr. Kauk had lost in Florida with the exception of the right to possess or own a firearm.

On May 17, 2012, Mr. Kauk applied again for the same licensure. The Department denied this application and issued a Notice of Permanent Bar, citing the 1999 convictions as the factual basis for the denial and permanent bar. The law applicable to Mr. Kauk’s application had been amended in 2011 to permanently preclude the licensure of any applicant who commits a felony involving fraud. The Department cited this bar, found at section 626.207(3), Florida Statutes (2011), as one statutory ground for its decision. As an alternative to section 626.207(3), the Department cited section 626.207(4), Florida Statutes (2011), which provides an absolute fifteen-year disqualification period for a felony involving moral turpitude that is not covered by section 626.207(3). In addition, the Department cited section 626.611(1), (7), and (14), Florida Statutes (2011), which list as reasons to deny applications for licensure an applicant’s lack of one or more of the qualifications specified in the Insurance Code, lack of fitness or trustworthiness to engage in the business of insurance, or conviction of a felony.

Mr. Kauk sought further proceedings, admitting the historical facts surrounding his convictions but disputing the Department’s allegation that he is unfit or untrustworthy to hold a license and arguing that he is entitled to sit for the licensure examination and complete all other requirements. The parties submitted the case to a Department hearing officer on a stipulated record. The stipulated record includes a written statement by Mr. Kauk professing rehabilitation, recalling a feeling of remorse sodn after his crimes, noting his family and employment situation, and detailing his community involvement and volunteer activities.

Before the hearing officer, the Department argued, in pertinent part, that each statutory provision cited in the notice requires denial of Mr. Kauk’s application as a matter of law due to his convictions. Mr. Kauk replied that the Department had misconstrued the applicable statutes as imposing a per se bar against his licensure even though his civil rights have been restored. He explained that this construction of the statutes is prohibited under Sandlin v. Criminal Justice Standards & Training Commission, 531 So.2d 1344 (Fla.1988), and G.W. Liquors of Collier, Inc. v. Department of Business Regulation, 556 So.2d 464 (Fla. 1st DCA 1990), which hold that a statute precluding licen-sure or certification for a particular occupation due to the conviction of a crime may not be interpreted as imposing an automatic bar against the licensure of those who have received a pardon or restoration of rights under the clemency power granted to the Governor in article IV, section 8(a) of the Florida Constitution. Mr. Kauk contended that he is entitled to apply for licensure because no per se bar applies and he is “a citizen fully rehabilitated, that conforms his behavior to societal norms, possesses good moral character, and is otherwise fit to serve as a resident life with variable annuity and health insurance agent ... in the State of Florida.”

The hearing officer agreed with Mr. Kauk and recommended approval of his application. In support of this recommendation, the hearing officer observed that Mr. Kauk has become a model citizen; is in a stable marriage and raising children; has stable, long-term employment; and contributes a substantial amount of his time to charity and community service. The hearing officer further supported his recommendation with the following finding:

The undisputed competent evidence, including the circumstances surrounding the Petitioner’s prior conviction and the undisputed evidence of his full and complete rehabilitation, show that the Petitioner currently conforms his behavior to societal norms, possesses good moral character, and is otherwise morally fit to serve as a residential life with variable annuity and health insurance agent in the State of Florida.

In its final order, the Department accepted the hearing officer’s findings, in full, while rejecting his conclusions concerning Sandlin, G.W., and the per se bar. The Department maintained that section 626.207(3) must be applied to Mr. Kauk and construed as imposing a permanent bar against his licensure. In addition, despite having accepted the hearing officer’s findings, the Department concluded that even assuming that the Department cannot impose the per se bar of section 626.207(3), the facts underlying Mr. Kauk’s convictions, when considered along with the legislative policy expressed in section 626.207(3), still require denial of his license as an exercise of the Department’s discretion. Consequently, the Department maintained the permanent bar against Mr. Kauk’s licensure.

II.

A.

Our review is governed by section 120.68(7), Florida Statutes (2012). Under this statute, we are required to remand a case to the agency for further proceedings or set aside agency action when “[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action.” § 120.68(7)(d). The Department’s first error in this case was its clearly erroneous interpretation of section 626.207(3) as requiring denial of Mr. Kauk’s application and imposition of a permanent bar as a matter of law.

Section 626.207(3) provides that “[a]n applicant who commits a felony of the first degree; a capital felony; a felony involving money laundering, fraud, or embezzlement; or a felony directly related to the financial services business is permanently barred from applying for a license under this part.” Similarly, the statute at issue in Sandlin barred from certification as a law enforcement officer any person who had been convicted of any felony or a misdemeanor involving perjury or a false statement. 531 So.2d at 1344. The Sandlin court refused to construe this statute as imposing a per se bar against certification of a pardoned felon, reasoning that such a construction would render the statute an unconstitutional infringement on the executive’s clemency power by diminishing the effect of a pardon. Id. at 1346-47. The court held that, because the Legislature is presumed to have intended a constitutional result when drafting any statute, the statute could not be read as imposing an absolute bar against certification of a pardoned felon. Id. at 1346-47.

The Department argues at length that the Sandlin construction does not apply to this case because Mr. Kauk has not been pardoned, but has merely had his civil rights restored. Although there may be wisdom in the distinction between one who has been pardoned and one who has had his civil rights restored (hereinafter “restored felon”), we are not at liberty to embrace such a distinction. In G.W., this Court extended Sandlin to require construction of a similar statute as not imposing a per se licensure bar against a restored felon, regardless of the lack of a full pardon. 556 So.2d at 465. Both this Court and the Department are required to follow the precedent established by Sandlin and G.W. and, therefore, interpret section 626.207’s per se bar as not reaching restored felons.

We also reject the Department’s claim that section 626.207 is different from the statute at issue in Sandlin because section 626.207 imposes a per se bar only where an applicant has been convicted of a particular type of felony rather than simply any felony. Because interpreting section 626.207 as precluding the licensure of those who have been pardoned of those particular felonies still would “diminish[] the effect of’ an extension of clemency, this distinction is misguided. See Sandlin, 531 So.2d at 1346. The Legislature cannot, and under the reasoning of Sandlin presumably did not intend to, restrict the Governor’s full clemency power to offenses outside certain categories.

For the foregoing reasons, Mr. Kauk is not categorically disqualified from licen-sure as an insurance agent based solely on his felony convictions for which his civil rights have been restored. The Department, therefore, erred in imposing a permanent bar.

B.

Sandlin, of course, does not require licensure simply because a per se bar cannot be applied. The Sandlin court recognized that “[pjersons seeking to practice certain professions or employments ... can be required to demonstrate their good moral character, even though they may have been fully pardoned for previous crimes.” 531 So.2d at 1346. Reasoning that “a pardon removes punishment, but not moral guilt,” the court went on to approve a licensing agency’s consideration of the facts underlying such a person’s convictions — and reasonable reliance on those facts — in the context of a complete evaluation of the applicant’s qualifications and suitability. Id. at 1346-47 (quoting Comm’r of Metro. Dist. Comm’n v. Dir. of Civil Serv., 348 Mass. 184, 203 N.E.2d 95, 103 (1964)). The court emphasized that a licensing agency is permitted to deny a license to a pardoned felon when the “serious character of the criminal conduct underlying his conviction” justifies the decision. Id. Ultimately, the court held that a licensing agency may “take into account and rely on the facts” underlying pardoned convictions and may give weight to the general policy expressed in a statute precluding licensure due to criminal convictions. See id.

In rejecting the hearing officer’s recommendation, the Department relied on these two considerations. However, when understood in the context of the findings the Department adopted and the statutory grounds the Department cited, these considerations do not explain the denial of Mr. Kauk’s application for licensure. The grounds upon which the Department relied all hinged on Mr. Kauk’s commission of the 1999 crimes and, perhaps, general notions of moral fitness and trustworthiness to engage in the business of insurance. The hearing officer addressed each ground by finding that Mr. Kauk is a completely rehabilitated model citizen with good character, whose civil rights have been restored in all relevant respects and who is “otherwise morally fit” to hold the license he seeks, and the Department adopted these findings. It is contradictory for the Department to adopt these findings and then conclude that the facts of his crimes and the policy underlying the statutory bar ipso facto render him unfit for a license. If Mr. Kauk is fully rehabilitated as to the crimes at issue, then the facts of those crimes are insignificant in an assessment of his current fitness to hold a license. Likewise, Mr. Kauk’s complete rehabilitation renders the prophylactic purpose of the statute inapplicable to him. Thus, the juxtaposition of the Department’s findings with the denial of Mr. Kauk’s application reveals that the Department misreads Sandlin.

Sandlin does not allow the denial of a license to a restored felon due to prior convictions when the licensing agency has made findings of complete rehabilitation and fitness to hold a license. If Sandlin could be applied in this way, its holding would be hollow. Because the Department accepted the hearing officer’s findings, and the only grounds upon which the denial was predicated were the crimes as to which Mr. Kauk has been rehabilitated and general notions of moral fitness and trustworthiness, a proper application of Sandlin precludes denial of Mr. Kauk’s license at this juncture. Consequently, we reverse the denial and remand for entry of an order consistent with this opinion.

REVERSED and REMANDED.

BENTON and PADOVANO, JJ., concur.

       The determination of moral fitness to hold a license is typically an issue of fact subject to ordinary methods of proof. Albert v. Fla. Dep't of Law Enforcement, Criminal Justice Standards & Training Comm'n, 573 So.2d 187, 188 (Fla. 3d DCA 1991); see also Yeoman v. Constr. Ind. Licensing Bd., 919 So.2d 542, 544 (Fla. 1st DCA 2005); Palamara v. State, Dep’t of Bus. & Prof'l Reg., 855 So.2d 706, 708 (Fla. 4th DCA 2003).


text:
    Rufus B. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6003.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Rehearing Denied Feb. 21, 2014.
    Rufus B. Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

LEWIS, C.J., PADOVANO and MARSTILLER, JJ., concur.


text:
    William Edward MEISENHEIMER, Appellant, v. In re ESTATE of Raymond Carl MEISENHEIMER, Catherine Meisenheimer Pannelli, Personal Representative, Appellee.
    No. 1D13-5441.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2014.
    Rehearing Denied Feb. 10, 2014.
    Thomas Constantine Levidiotis, Oxford, MS, for Appellant.
    Richard P. Petermann, Jr. and Jeffrey L. Burns, of Anchors Smith Grimsley, PLC, Fort Walton Beach, for Appellee.
   PER CURIAM.

DISMISSED.

LEWIS, C. J., PADOVANO and MARSTILLER, JJ., concur.


author: VAN NORTWICK, J.

text:
    Antwan J. TYLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3271.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2014.
    Rehearing Denied Feb. 21, 2014.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Antwan J. Tyler appeals a judgment of conviction for armed robbery with a firearm. We affirm all issues raised on appeal. We write because, in Issue IV, appellant’s argument misreads our decision in Mosansky v. State, 33 So.3d 756 (Fla. 1st DCA 2010), and we wish to emphasize the correct reading. In Issue IV, appellant asserts that the giving of the standard instruction on duress was fundamental error because the instruction does not adequately explain the burden of the prosecution to prove beyond a reasonable doubt that a defendant did not act out of duress. The appellant’s argument is without merit.

Appellant argues in his Initial Brief, as follows:

The defense of duress is similar to the defense of self-defense insofar as each constitutes an excuse or legal justification for the commission of the charged crime. Because of this similarity the jury considering the claim of duress should be instructed, as in the case of self-defense, that once the defendant presents a prima facie claim of duress, the burden shifts to the state to prove beyond a reasonable doubt that the defendant did not act out of duress.
The standard instruction on self-defense actually provides:
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.
Fla. Std. Jury Instr. (Crim.) 3.6(f). This instruction has been deemed sufficient. Mosansky v. State, 33 So.3d 756 (Fla. 1st DCA 2010). Based on Mosansky, a similar instruction should be used where the defense of duress is at issue. The failure to use such an instruction in the present case was error.

(Initial Brief, pp. 31-32).

The standard self-defense instruction does not provide that the burden of proof shifts to the State, as appellant suggests in the passage quoted-above. Further, the decision in Mosansky does not support a burden-shifting instruction, contrary to appellant’s argument.

In Mosansky, the appellant argued that “the trial court fundamentally erred by failing to specifically instruct the jury that the state had the burden to prove beyond a reasonable doubt that he did not act in self-defense.” Mosansky, 33 So.3d at 757. The Mosansky court expressly rejected this argument, however, explaining that the cases cited by the appellant therein “do not ... stand for the proposition that the trial court is required to specifically instruct the jury of the state’s burden to disprove the claim of self-defense.” Id. at 758; see also Elliot v. State, 49 So.3d 269, 270-71 (Fla. 1st DCA 2010).

As explained by the United States Supreme Court in Dixon v. U.S., 548 U.S. 1, 7, 126 S.Ct. 2437, 2442, 165 L.Ed.2d 299 (2006), a case not cited by either party in the case before us, the defense of duress allows the defendant to “avoid liability ... because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.” (quoting U.S. v. Bailey, 444 U.S. 394, 402, 100 S.Ct. 624, 631, 62 L.Ed.2d 575 (1980)). The Court held that there is no constitutional basis for placing upon the government the burden of disproving a defendant’s duress defense beyond a reasonable doubt. 548 U.S. at 8, 126 S.Ct. at 2442. Neither does “modern common law” require the government to bear such a burden. Id. As the Court further explained in Dixon:

it bears repeating that, at common law, the burden of proving “affirmative defenses — indeed, ‘all ... circumstances of justification, excuse or alleviation’ — rested on the defendant.” Patterson [v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)](quoting 4 W. Blackstone, Commentaries *201); see also Martin v. Ohio, 480 U.S., at 235, 107 S.Ct. 1098, 94 L.Ed.2d 267; Mullaney v. Wilbur, 421 U.S. 684, 693, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). This common-law rule accords with the general evidentiary rule that “the burdens of producing evidence and of persuasion with regard to any given issue are both generally allocated to the same party.” 2 J. Strong, McCormick on Evidence § 337, p. 415 (5th ed. 1999). And, in the context of the defense of duress, it accords with the doctrine that “where the facts with regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving the issue.” Id. at 413.

548 U.S. at 8-9, 126 S.Ct. at 2443.

We find no error in the challenged jury instructions.

AFFIRMED.

ROWE and MARSTILLER, JJ., Concur.


text:
    Tywann CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6141.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2014.
    Tywann Carter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


text:
    Jimmy GHENT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6181.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2014.
    Jimmy Ghent, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    Matthew Alexander HALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0010.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2014.
    Rehearing Denied Mar. 24, 2014.
    Petition Alleging Ineffective Assistance of Appellate Counsel — Original Jurisdiction. Matthew Alexander Hall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Jason Hardy OAKES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0263.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2014.
    Jason Hardy Oakes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


text:
    Tashawnbie GAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0139.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2014.
    Tashawnbie Gay, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


author: SWANSON, J. OSTERHAUS, J.,

text:
    Roy Howard MIDDLETON Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3659.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

In this direct criminal appeal, appellant claims his retrial and conviction for first-degree murder with a firearm violated the constitutional prohibition against double jeopardy because he was acquitted on that charge at his prior trial when the jury convicted him of the lesser included offense of second-degree murder with a firearm. We agree. Accordingly, we reverse and remand with directions that the trial court adjudicate and sentence appellant for the lesser included offense of second-degree murder with a firearm.

In June 2000, appellant was tried for first-degree murder with a firearm before a twelve-person jury. After deliberations began, the state moved to strike a juror for failing to disclose a prior felony conviction. The trial court granted the motion and asked appellant whether he wanted to proceed with just eleven jurors or replace the stricken juror with a previously dismissed alternate juror. -Appellant decided to proceed with an eleven-person jury, which returned a guilty verdict on the lesser included offense of second-degree murder with a firearm. Appellant was adjudicated guilty and sentenced to thirty-five years in prison with a three-year mandatory minimum, which this court affirmed without opinion on direct appeal. Middleton v. State, 833 So.2d 124 (Fla. 1st DCA 2002) (table).

Later, appellant filed a motion for post-conviction relief that claimed trial counsel was ineffective for failing to advise him that he had the option of moving for a mistrial when the juror was dismissed after deliberations had begun. After holding an evidentiary hearing, the trial court denied the motion. On appeal, this court concluded trial counsel was ineffective for failing to advise appellant of his right to move for a mistrial and remanded with directions that the trial court determine whether appellant demonstrated the requisite prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Middleton v. State, 984 So.2d 522 (Fla. 1st DCA 2007).

On remand, the trial court found appellant would have requested a mistrial if he had known that was an available option, but concluded appellant failed to demonstrate a reasonable probability that the outcome of a new trial would have been any different in light of the weight of the evidence. On appeal, this court reversed and remanded for a new trial, concluding appellant satisfied the prejudice prong of Strickland by showing he was deprived of his right to a mistrial. Middleton v. State, 41 So.3d 357, 359-62 (Fla. 1st DCA 2010). In a concurring opinion, Judge Thomas observed that appellant’s retrial for first-degree murder was not foreclosed by the constitutional prohibition against double jeopardy because jeopardy did not attach to the verdict of an eleven-person jury in appellant’s capital murder trial, which was rendered null and void where appellant did not knowingly and voluntarily waive his right to trial by a twelve-person jury. Id. at 362-65 (Thomas, J., concurring).

On remand, appellant filed a motion to dismiss the first-degree murder charge on the ground that it was barred by the double jeopardy clauses of the state and federal constitutions. The trial court denied the motion, concluding jeopardy did not attach to the prior jury verdict because it was null and void. The case then proceeded to trial before a twelve-person jury, which returned a verdict finding appellant guilty of first-degree murder as charged and also finding that appellant used, carried, or displayed a firearm. The trial court then adjudicated appellant guilty and sentenced him to life in prison without the possibility of parole. This appeal followed.

Appellant asserts his prior conviction for the lesser included offense of second-degree murder with a firearm was an implied acquittal on the charged offense of first-degree murder with a firearm for purposes of double jeopardy, citing Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). However, relying on Judge Thomas’ concurring opinion in Middleton, the state responds that the implied acquittal on the charge of first-degree murder with a firearm was rendered a nullity due to incurable structural error in the trial proceeding, returning appellant and the state to the status quo ante. Since the double jeopardy issue was not addressed by the majority in Middleton, Judge Thomas’ opinion is not binding on this court. For several reasons, we are unable to agree with the contention that the implied acquittal in this case was a nullity.

First, a verdict by an eleven-person jury is not a nullity in a capital murder case because defendants can waive their statutory right to a twelve-person jury. See State v. Griffith, 561 So.2d 528 (Fla.1990). We simply cannot conclude that appellant’s successful collateral challenge to the voluntariness of his waiver of a twelve-person jury retroactively nullified the jury’s implied acquittal on the charge of first-degree murder.

Second, the state’s position relies on the theory that a jury verdict of acquittal can be “nullified” due to so-called “structural error.” This broad “nullification” theory, which was announced by the Louisiana Court of Appeal in State v. Langley, 896 So.2d 200 (La.Ct.App.2004), has been disapproved by the Louisiana Supreme Court in State v. Langley, 958 So.2d 1160, 1169 (La.2007). It also has been rejected by the Alabama Supreme Court in Ex parte Gillentine, 980 So.2d 966 (Ala.2007), and our sister court, the Second District Court of Appeal, in Moody v. State, 931 So.2d 177 (Fla. 2d DCA 2006). As the Alabama Supreme Court has noted, the concept of “structural error” was developed to determine whether an error is subject to a harmless error analysis, not whether an acquittal is valid for double jeopardy purposes. Gillentine, 980 So.2d at 970-71.

Third, case law clearly distinguishes between the validity of verdicts of acquittal and verdicts of conviction. Unlike verdicts of conviction, verdicts of acquittal cannot be challenged no matter how “egregiously erroneous.” Moody, 931 So.2d at 180-81 (quoting Sanabria v. United States, 437 U.S. 54, 75, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), and Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)). For instance, the United States Supreme Court has recognized jury acquittals even though the proceedings were determined to be invalid. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (holding that jeopardy attached to acquittal on larceny charge even though defendant was tried on a defective indictment); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) (holding that jeopardy attached to acquittal on murder charge even though defendant and his codefen-dants were tried on a fatally defective indictment). Similarly, state courts have recognized acquittals even though the jury’s verdict was set aside due to juror error or misconduct. See Plate v. Alaska, 925 P.2d 1057, 1062 (Alaska Ct.App.1996) (holding that defendant could not be retried on charge that resulted in acquittal after his convictions on other charges were reversed because the trial court improperly substituted an alternate juror after the jury began deliberations); Niemand v. Dist. Ct., 684 P.2d 931 (Colo.1984) (recognizing defendant’s implied acquittal on first-degree murder charge even though the jury verdict for second-degree murder was set aside due to a juror’s consultation with a legal dictionary); Moody, 931 So.2d at 177-82 (rejecting claim that jury misconduct nullified the jury’s verdicts of acquittal).

Finally, appellant’s position is distinguishable from defendants who successfully obtain a mistrial or move to vacate their pleas and are then returned to their original position. Specifically, appellant’s case was not terminated by a declaration of mistrial, but ended with an implied acquittal on the charge of first-degree murder, which triggered the protection of the double jeopardy clause. See Moody, 931 So.2d at 181. Moreover, the United States Supreme Court has observed that “[t]he acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending ... has none of the [double jeopardy] implications of an ‘implied acquittal’ which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.” Ohio v. Johnson, 467 U.S. 493, 501-02, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

Based on the above, we conclude appellant’s retrial and conviction for first-degree murder with a firearm violated the constitutional prohibition against double jeopardy. However, we agree with the state that the proper disposition is not to reverse and remand for a new trial, but to reverse and remand with directions that the trial court reduce appellant’s conviction to the lesser included offense of second-degree murder with a firearm and resentence him accordingly. See Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986).

REVERSED and REMANDED with directions.

BENTON, J., concurs; OSTERHAUS, J., Dissents with Opinion.

OSTERHAUS, J.,

dissenting.

I respectfully dissent for reasons elaborated in the concurring opinion in Middleton v. State, 41 So.3d 357, 362-65 (Fla. 1st DCA 2010) (Thomas, J. concurring).


text:
    OKALOOSA COUNTY, Bay County, Brevard County, Broward County, Escambia County, Hernando County, Hillsborough County, Miami-Dade County, Orange County, Pinellas County, and Santa Rosa County, Appellants, v. DEPARTMENT OF JUVENILE JUSTICE, Appellee.
    No. 1D13-465.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.

      Gregory T. Stewart, Carly J. Schrader, and Lynn M. Hoshihara of Nabors, Giblin & Nickerson, P.A., Tallahassee, and John R. Dowd, County Attorney, Okaloosa County Attorney’s Office,' Shalimar, for Appellant Okaloosa County; Terrell K. Arline, County Attorney, and Jennifer W. Shuler, Assistant County Attorney, Bay County Attorney’s Office, Panama City, for Appellant Bay County; Shannon L. Wilson, Deputy County Attorney, Office of the County Attorney, Viera, for Appellant Bre-vard County; Joni Armstrong Coffey, Bro-ward County Attorney, and Adam Katz-man, Assistant County Attorney, Fort Lauderdale, for Appellant Broward County; Alison Rogers, County Attorney, and Charles V. Peppier, Deputy County Attorney, Pensacola, for Appellant Escambia County; Garth Coller, County Attorney, and Jon A. Jouben, Deputy County Attorney, Brooksville, for Appellant Hernando County; Stephen M. Todd, Senior Assistant County Attorney, Tampa, for Appellant Hillsborough County; R.A. Cuevas, Jr., Miami-Dade County Attorney, E Stephanie Resnik, Assistant County Attorney, and Cynthia Johnson-Stacks, Assistant County Attorney, Miami, for Appellant Miami-Dade County; Linda S. Brehmer Lanosa, Orange County Attorney’s Office, Orlando, for Appellant Orange County; Carl E. Brody, Senior Assistant County Attorney, and Christy Donovan Pember-ton, Senior Assistant County Attorney, Clearwater, for Appellant Pinellas County; and Angela J. Jones, Santa Rosa County Attorney, Milton, for Appellant Santa Rosa County.
    Brian D. Berkowitz, General Counsel; Michael J. Wheeler, Assistant General Counsel, and John Milla, Assistant General Counsel, Department of Juvenile Justice, Tallahassee, for Appellee.
   PER CURIAM.

This appeal arose from administrative proceedings addressing the cost-sharing procedures and the allocation of costs for secure juvenile detention pursuant to section 985.686, Florida Statutes (2008). This statute sets out the State’s and counties’ joint obligation to contribute to the funding of secure juvenile detention. § 985.686(1). Appellants, the counties, seek review of the Department of Juvenile Justice’s final order, and all but Appellant Orange County ask this Court to reverse the final order and remand with directions to the Department to adopt the administrative law judge’s (ALJ’s) recommended order in full. The ALJ concluded that the Department had misinterpreted the statutory scheme for detention cost-sharing for Fiscal Year 2008-2009. The Department filed exceptions contesting the ALJ’s determination regarding the agency’s interpretation of section 985.686, and the final order granted these exceptions. After entry of the final order in the instant case, this Court issued an opinion in Department of Juvenile Justice v. Okaloosa County, 113 So.3d 1074 (Fla. 1st DCA 2013), affirming a different ALJ’s recommended order which, the parties agree, utilized essentially the same reasoning in rejecting the Department’s interpretation of the cost-sharing law. In its answer brief, the Department acknowledges error in its final order regarding its interpretation of section 985.686 and states its intention to adopt the ALJ’s recommended order. Given this confession of error, we reverse and remand for the Department to adopt the recommended order.

Appellant Orange County seeks alternative relief relating to assessments made by the Department in the cost-sharing scheme. Generally, the counties are responsible for the actual cost of predisposition secure juvenile care, and the Department is responsible for postdispo-sition secure juvenile care. § 985.686(3). To assist the counties’ budgetary planning at the start of each fiscal year, the Department determines and provides an estimate for each county’s share of predisposition secure detention costs. Fla. Admin. Code R. 63G-1.004. At the end of the fiscal year, and no later than the following January 31, the Department must reconcile the estimated payments with the counties’ actual costs of predisposition secure detention. If the county’s actual cost is more or less than the estimated payments made, then the county will be debited or credited for the difference. § 985.686(5); Fla. Admin. Code R. 63G-1.008.

The Department issued its annual reconciliation for Fiscal Year 2008-2009 and notified the counties via a December 7, 2009 letter. For Orange County, this reconciliation resulted in a $684,481.65 overpayment credit, which the County accepted. On January 26, 2010, the Department issued a letter to the counties setting out the specific procedures for any county that wished to challenge the assessments in the annual reconciliation, and stating that the counties had twenty-one days to file their challenges. Before this deadline passed, twelve counties filed challenges to the annual reconciliation using the form prescribed by the Department, but Orange County did not file such a challenge.

In a March 23, 2010 letter to the counties, the Department advised that it had concluded its analysis of the challenges to the annual reconciliation. In addition to making adjustments to the accounts of the challenging counties, however, the Department modified the amounts set forth in the annual reconciliation for all thirty-eight non-fiscally constrained counties. Although Orange County initially had received a credit in the annual reconciliation, the March 23, 2010 “proposed adjustment” shifted additional detention days to the County and sought a payment of $701,331.63 from the County. This letter stated that if a county took issue with the proposed adjustments, then it must file a petition with the Department to initiate administrative proceedings. Orange County filed a timely petition and sought a determination that the Department should not have made any successive adjustment to the annual reconciliation. The County also challenged the procedural and eviden-tiary basis for the annual reconciliation and sought to have it redone.

At the conclusion of the consolidated administrative proceedings, which included the original challengers to the annual reconciliation and the non-challenging counties, the ALJ made the following determinations: 1) the December 7, 2009 annual reconciliation constituted final agency action for all counties that had not contested the reconciliation in accordance with the Department’s January 26, 2010 letter; 2) the Department lacked statutory authority to recalculate the amounts set forth in its annual reconciliation for the fifty-five counties that had not filed challenges; and 3) the doctrine of administrative finality precluded Orange County from belatedly challenging the annual reconciliation. See Austin Tupler Trucking, Inc. v. Hawkins, 377 So.2d 679, 681 (Fla.1979) (stating “[tjhere must be a terminal point in every proceeding both administrative and judicial, at which the parties and the public may rely on a decision as being final and dispositive of the rights and issues involved therein”). Finding that the Department acted without any legitimate reason in disturbing and adjusting the annual reconciliation as to those counties such as Orange County that did not timely challenge it, the ALJ recommended reinstatement of the amounts set forth in the December 7, 2009 annual reconciliation letter for Orange County and similarly situated counties. We conclude that these rulings fully comport with the law. Accordingly, we reverse the final order and remand with instructions to the Department to adopt the recommended order in its entirety-

REVERSED and REMANDED with instructions.

CLARK, WETHERELL, and RAY, JJ., concur.


text:
    DUVAL COUNTY SCHOOL BOARD (“School Board”), Appellant, v. Shelby BUCHANAN, by and through her Natural Parent and Guardian, Beverly COX, Appellee.
    No. 1D13-2202.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    William B. Burkett, Craig D. Feiser, and Stephen J. Powell, Office of General Counsel, Jacksonville, for Appellant.
    Thomas E. Duffy, Jr., Terrell Hogan, P.A., Jacksonville, for Appellee.
   PER CURIAM.

In this appeal, the Duval County School Board raises two issues: (1) whether the trial court erred by excluding testimony of a third party that a racial slur may have prompted the physical beating of stu-denVplaintiff Shelby Buchanan by Kiara Terry, despite neither student — nor any administrator, teacher, or other student present before or at the time of the beating — having heard a slur; and (2) whether the trial court erred in allowing the jury to consider the School Board’s prior disciplinary decisions regarding Terry in support of the alleged breach of duty. We affirm on the first issue, finding the trial court did not abuse its discretion in excluding the contested evidence, which was attenuated and amounted to no more than improperly stacked inferences. See School Bd. of Broward Cnty. v. Beharrie, 695 So.2d 437, 439 (Fla. 4th DCA 1997).

On the second issue, we likewise affirm, but explain in more detail why. On March 5, 2008, Terry, a sixth grader at a local middle school, physically attacked Buchanan, who suffered a broken leg as a result. Terry — the attacker — had an extensive disciplinary history, including bullying, fighting, disruption of classes, and — shortly before the attack on Buchanan — possession of a blade, the latter to be punished by an in-school suspension (ISS) set for March 5, 2008. One of the four theories of negligence submitted to the jury was that the School Board was negligent for failing to place Terry in ISS on the scheduled day, allowing her instead to be on the playground at her school where the incident began. The jury found in favor of Buchanan on this theory (Count 2 on the verdict form) and on a second theory', that the School Board was negligent in its supervision of Terry immediately before the physical assault, which resulted in the injury to Buchanan (Count 4 on the verdict form). The jury ruled in favor of the School Board on the other two theories of recovery (Counts 1 and 3 on the verdict form).

On appeal, the School Board argues that it owed no duty to Buchanan to discipline Terry in a particular manner on any particular day, or, in the alternative, even if it owed a duty to Buchanan to discipline Terry in a particular manner, the formulation and execution of its disciplinary policy is a discretionary function for which it has sovereign immunity. The School Board says the jury should not have been able to hold it responsible for failing to have Terry in ISS on the designated day under principles of sovereign immunity.

We need not address this issue, which relates to only Count 2 on the verdict form, because the School Board has not contested the alternative basis for liability, which was the jury’s verdict in Count 4 that the School Board’s negligent supervision of Terry resulted in the harm to Buchanan. The School Board’s initial brief specifically limited its legal arguments to the three theories in Counts 1-3 on the verdict form, only one of which — Count 2 — resulted in a jury verdict against the School Board; it did not challenge the jury’s verdict as to Count 4, which was not based on the three contested theories. In her answer brief, Buchanan pointed out that whatever error may exist as to Count 2 is harmless given that the jury’s verdict on Count 4 was not challenged. In its reply brief, the School Board addresses Buchanan’s point by acknowledging that it has a duty to supervise its students and that it was proper to present this theory of liability in Count 4 to the jury for its determination. See Doe v. Escambia County School Board, 599 So.2d 226, 227 (Fla. 1st DCA 1992). It claims for the first time, however, that it was an abuse of discretion for the trial court to have allowed evidence of “Terry’s school conduct prior to March 5, 2008 to go before the jury,” which is a different argument than the no-duty and sovereign immunity arguments in its initial brief. Because negligent supervision is an accepted basis for liability against a school board, and the record here contains plentiful evidence to support the jury verdict on Count 4, no fundamental error exists.

AFFIRMED.

THOMAS, RAY, and MAKAR, JJ., concur.


text:
    DEPARTMENT OF REVENUE obo Shemata S. WALKER, Appellant, v. Sedrick L. CODY, Appellee.
    No. 1D13-2475.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Sedrick L. Cody, pro se, for Appellee.
   PER CURIAM.

This is an appeal of a Final Administrative Support Order by the Department of Revenue on behalf of Shemata S. Walker. The order was rendered on May 17, 2013, and erroneously allowed Sedrick L. Cody a deduction from his gross income for a pri- or child support order that he was not paying. Section 61.30(3)(f) provides that “[c]ourt-ordered support for other children which is actually paid” is an allowable deduction from gross income for purposes of calculating net income available for child support. § 61.30(3), Fla. Stat. (2013) (emphasis added). See also Undercuffler v. Undercuffler, 798 So.2d 867, 869 (Fla. 4th DCA 2001) (reversing child support calculation which included a deduction for court-ordered support where no evidence was presented that the husband was currently paying that obligation); Copeland v. Copeland, 667 So.2d 487-88 (Fla. 1st DCA 1996) (“The language of 61.30(3) was intended to permit only those items listed in the statute as deductions from gross income.”).

Until and unless Cody actually pays his child support for his other child, he is not permitted a deduction. We REVERSE and REMAND for a recalculation of the child support guidelines.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Jeffrey POMERANTZ, Appellant, v. PALM BEACH COUNTY SHERIFF’S OFFICE & USIS, Appellees.
    No. 1D13-2950.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.

      Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Appellant.
    Christine M. Tomasello of Pallo, Marks, Hernandez, Gechijian & DeMay, P.A., Palm Beach Gardens, for Appellees.
   PER CURIAM.

In this Workers’ Compensation case, the Claimant challenges an order of the Judge of Compensation Claims finding his petition for benefits barred by the running of the statutory limitations period under section 440.19, Florida Statutes (2008). Finding no merit in the Claimant’s argument that the Employer/Carrier was estopped from raising the statute of limitations, we affirm this issue without comment. We also affirm the JCC’s finding that the statute of limitations was tolled under section 440.19(1) for one year from the date that the claimant was furnished with a prescription for medication by his authorized physician in July of 2011 and, as a consequence, that the Claimant’s petition for benefits filed in October of 2012 was untimely. In so doing, we reject the Claimant’s argument that the statute in this case began to run from the date he alleges he last took the prescribed medication in March of 2012.

The Claimant’s reliance on this court’s decision in Ginsberg v. ChemMed Corp., 929 So.2d 633 (Fla. 1st DCA 2006), is misplaced. In Ginsberg, the claimant argued that the statute did not begin to run until the end of a non-renewable thirty-day supply of prescribed medication. Noting that there was no dispute that the employer/carrier knew of this course of treatment, the Ginsberg court reversed the order dismissing all claims based on the running of the statute of limitations, and remanded with instructions for a finding as to when the claimant last took the medication as prescribed during the thirty-day period. Under this admittedly narrow set of facts, the Ginsberg court declined to apply prior case law citing the date the prescription was received as the date the limitations period began to run.

Here, the medical evidence indicates that the authorized treating physician allowed for refills and advised the Claimant to take the prescribed medication “as needed,” despite specific instructions for a daily dosage on the prescription itself. We decline to extend the reasoning in Ginsberg to the factual situation presented here where the course of treatment is completely within Claimant’s discretion and outside the knowledge of the Employer/Carrier. Such a result is contrary to the self-executing nature of the statute. Consequently, we hold that the JCC did not err when she found that the date the statute began to run was the date the Claimant received/filled the prescription for medication in July of 2011. See Thomas v. Jacksonville Elec. Auth., 536 So.2d 310 (Fla. 1st DCA 1988); City of Orlando v. Blackburn, 519 So.2d 1017 (Fla. 1st DCA 1987). The JCC’s order denying and dismissing the Claimant’s petition for benefits based on the running of the statute of limitations is, therefore, affirmed.

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


text:
    Willie Arthur SCULLOCK, II, Appellant, v. FLORIDA STATE HOSPITAL, et al., Appellee.
    No. 1D13-5432.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Willie Arthur Scullock, II, pro se, Appellant.
    Jacqueline H. Smith, Chattahoochee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of January 2, 2014, the Court has determined that the appeal is premature. See Pagenet, Inc. v. State, Dept. of Revenue, 843 So.2d 1027 (Fla. 1st DCA 2003); Augustin v. Blount, 573 So.2d 104 (Fla. 1st DCA 1991). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. The dismissal is without prejudice to appellant’s right to seek appellate review upon entry of a final order. All pending motions are denied as moot.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


author: ROTHENBERG, J.

text:
    Terrence and Tiwanna KELSEY, Appellants, v. SUNTRUST MORTGAGE, INC., Appellee.
    No. 3D12-2994.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2014.
    Ice Appellate, and Thomas Erskine Ice and Amanda L. Lundergan, Royal Palm Beach, for appellants.

      Broad and Cassel, and Steven Ellison and Tara S. Pellegrino, West Palm Beach, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   ON MOTION FOR REHEARING & PARTIAL CONCESSION OF ERROR

ROTHENBERG, J.

We grant the appellee’s motion for rehearing, withdraw our former opinion dated December 4, 2013, and substitute the following opinion in its stead.

This appeal comes to us from a final default judgment ordering the foreclosure of the Kelseys’ home in favor of SunTrust Mortgage, Inc. (“SunTrust”). Although the Kelseys have raised several points of error on appeal, we address only one, and based on SunTrust’s proper concession of error, we reverse and remand for further proceedings.

At trial, SunTrust’s only testifying witness was Lauren Gergeceff (“Gergeceff’), a mediation litigation specialist employed by Nationstar Mortgage, LLC (“Nations-tar”). Gergeceff testified that she had no independent knowledge of the loan, she had only seen the subject note for the first time the day of trial, and she had only become familiar with the mortgage file when she learned the case was being tried. Gergeceff also relied on a proposed final order that had been prepared by a third party to testify regarding the amount owing on the note at the time of foreclosure. The Kelseys objected to Gergeceffs authentication of the note, mortgage, and other documents because she lacked the requisite foundation and she was incompetent to testify because her purported knowledge was based entirely on out-of-court documents that had not been made available for inspection, and which were hearsay. The trial court overruled the objections, allowed Gergeceff to testify, and admitted the note and mortgage into evidence.

To establish its entitlement to foreclosure, SunTrust needed to introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the Kelseys’ outstanding debt on the note. See Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979) (holding that foreclosure plaintiffs must show: (1) an agreement, (2) a default, (3) an acceleration of debt to maturity, and (4) the amount due). Without the proper foundation, the documents Gergeceff relied upon to establish the amount due on the note were indisputably hearsay and were not properly authenticated. § 90.803, Fla. Stat. (2012); Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).

The Kelseys argue, among other things, that the trial court erred in allowing Ger-geceff to authenticate these documents without showing that she was a records custodian or that she had personal knowledge of the documents. SunTrust filed a partial concession of error in this Court, admitting that the trial court erred in allowing the documents, as they are hearsay without the proper authentication. We agree, and remand for rehearing on that issue. The Kelseys’ remaining arguments either lack merit, were decided in their previous interlocutory appeal, or are rendered moot based on our remand.

Reversed and remanded.

      . Nationstar began servicing the Kelseys’ loan and mortgage after a modification agreement had allegedly been reached with SunTrust, the original loan servicer.


text:
    Willie CUYLER, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-408.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Nancy A. Daniels, Public Defender, and Richard M. Bracey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Willie Cuyler, challenges his judgment and sentence for resisting a law enforcement officer without violence, arguing that the trial court erred by failing to conduct an adequate Faretta inquiry at the outset of trial and failing to renew an offer of counsel prior to sentencing. We hold that the trial court conducted an adequate Faretta hearing prior to allowing Cuyler to represent himself at trial, and affirm his conviction accordingly. However, we reverse Cuyler’s sentence and remand for a new sentencing hearing prior to which the trial court must conduct an adequate Faretta inquiry.

The record demonstrates that the trial court moved directly into sentencing after the verdict was announced without mentioning Cuyler’s right to counsel at that critical stage. While a full Faretta inquiry need not be conducted at every stage of criminal proceedings, once counsel has been waived under Faretta, the offer of assistance of counsel must be renewed by the court at each critical stage of the proceedings. Traylor v. State, 596 So.2d 957, 968 (Fla.1992) (holding that a critical stage of trial is “any stage that may significantly affect the outcome of the proceedings”). Sentencing is a critical stage of a criminal proceeding. See, e.g., Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999). A trial court’s failure to conduct a Faretta hearing at a critical stage of the criminal proceedings constitutes per se reversible error. See Tennis v. State, 997 So.2d 375, 379 (Fla.2008); Wilson v. State, 947 So.2d 1225, 1226-27 (Fla. 1st DCA 2007).

The state concedes that remand for re-sentencing is required. We reverse the imposed sentence and remand for a new sentencing hearing.

REVERSED and REMANDED.

VAN NORTWICK, PADOVANO, and SWANSON, JJ., Concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding defendant has constitutional right to self-representation; however, prior to defendant proceeding pro se, court must determine whether defendant has voluntarily and intelligently elected to proceed without counsel).


text:
    Loren Z. CLAYMAN MD PA, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Wendy Gonzalez, Appellees.
    No. 1D13-1563.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Jason H. Clark, West Palm Beach, for Appellant.
    Norman Blessing, General Counsel, and Amanda L. Neff, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Finding appellee’s concession of error to be well taken, the final order is reversed and the cause is remanded to the Reemployment Assistance Appeals Commission for further proceedings.

LEWIS, C.J., WOLF and ROBERTS, JJ., concur,


text:
    Antwann JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2675.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Antwann Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brittany Rhodaback, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the November 28, 2012, order denying defendant’s motion for postconviction relief in Duval County Circuit Court case number 16-2009-CF-005646-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Arthur COOPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4572.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Arthur Cooper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the October 13, 2011, order denying motion for postconviction relief in Suwannee County Circuit Court case numbers 2001-256-CF and 2009-366-CF and Columbia County case number 2001-465-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Mary Helen BROEMER, Former Wife, Appellant, v. Thomas Carl BROEMER, Former Husband, Appellee.
    No. 1D13-4809.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Seth Schwartz and Caleb D. Rowland of The Schwartz Law Group, Jacksonville, for Appellant.
    Jonathan J. Luca and Wm. Bruce Muench of the Law Offices of Muench & Luca, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Finding appellee’s concession of error to be well-taken, the second amended final judgment is quashed and the cause is remanded for further proceedings consistent with this court’s prior opinion in Broemer v. Broemer, 109 So.3d 284 (Fla. 1st DCA 2013).

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Kim MASS-RODRIGUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5247.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Kim Mass-Rodriguez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the order denying motion for postconviction relief rendered on January 31, 2012, in Santa Rosa County Circuit Court ease numbers 2008-578-CFA, 2008-728-CFA, 2008-792-CFA, and 2008-996-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Barbara J. MANN, Personal Representative, Appellant, v. James DAVIS, Interested Party, Appellee.
    No. 1D13-5571.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Jennifer L. Kerkhoff, Ocala, for Appellant.
    No appearance for appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of January 2, 2014, the Court has determined that the order on appeal does not finally determine a right or obligation of an interested party and is therefore not subject to appellate review pursuant to Florida Rule of Appellate Procedure 9.170(b). See Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005) (concluding determination that beneficiary was entitled to share of estate was not final until specific award was defined); In re Estate of Walters, 700 So.2d 434, n. 1 (Fla. 4th DCA 1997) (noting that in order to be reviewable, probate order must finally determine a right or obligation of an interested party, thereby terminating the judicial labor on the issue); see also Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009) (dismissing appeal rather than allowing lower court to enter a final order where an indeterminate amount of judicial labor remained to be done before a final order could be entered).

Moreover, because the underlying order is not a final order, the motion for relief from judgment was not an authorized motion, and the order on the motion is not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). Bennett’s Leasing, Inc. v. First Street Mortgage Corp., 870 So.2d 93 (Fla. 1st DCA 2003) (dismissing appeal where order denied relief from interlocutory order). Accordingly, the appeal is hereby dismissed.

LEWIS, C. J., WOLF and ROBERTS, JJ., concur.


text:
    DA-VI NAILS, INC., Appellant, v. DAVI NAILS SALON AND SPA, LLC, A Utah Limited Liability Company, as Successor in Interest to Davi Nails; David Ha Truong; Vi Truong Cao; Tanya Tran; and Tina Sperry, Appellees.
    No. 1D13-5872.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    William Bruce Muench and Jonathan J. Luca, Jacksonville, for Appellant.
    Michael L. Edwards, Jacksonville; Eugene Fowler, Jacksonville (no appearance), for Appellees.
   PER CURIAM.

The Court has determined that the May 23, 2013, Final Judgment is not a final appealable order. Specifically, although the order appears to determine entitlement to judgment on Count II of the complaint and on the counterclaim, it does not actually enter judgment on either claim. Moreover, it is unclear whether the order disposes of the claims raised in Count I of the complaint. The order fails to enter judgment, and the decretal portion of the order does not appear to be sufficient to dispose of the entire claim. See Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999). Nor do the subsequently entered Order Denying Plaintiffs Motion for Entry of Final Order, and Motion for Stay Pending Appellate Review, and Order Granting Defendant’s Expedited Motion to Enforce Final Judgment, render the order final. Consequently, this appeal is premature, and the appeal is dismissed without prejudice to appellant’s right to file a proper petition for writ of mandamus pursuant to Florida Rule of Appellate Procedure 9.100. See Maddrie v. McDonough, 945 So.2d 573 (Fla. 1st DCA 2006); State v. Sullivan, 640 So.2d 77 (Fla. 2d DCA 1994). Appellee’s motion to dismiss the appeal as untimely is denied.

LEWIS, C. J., WOLF and ROBERTS, JJ., concur.


text:
    J.T. TRANSPORTATION, INC. and Paul Robbins, Appellants, v. VFS LEASING CO., a Delaware Business Trust, Appellee.
    No. 1D13-5999.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    James L. Nipper, Jacksonville, for Appellants.
    Jonathan A. Huth, Murphy & Anderson, P.A., Jacksonville (no appearance), for Ap-pellee.
   PER CURIAM.

DISMISSED. Appellants’ request that the Court issue a “mandate” requiring the lower tribunal to conduct a hearing is denied without prejudice to filing a proper petition for relief pursuant to Florida Rule of Appellate Procedure 9.100.

LEWIS, C. J., WOLF and ROBERTS, JJ., concur.


text:
    Andrey Moses WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5316.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2014.
    Stacy A. Scott, Public Defender, and Susan Ward, Assistant Public Defender, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.350(b).

THOMAS, RAY, and SWANSON, JJ., concur.


author: PER CURIAM. WEIMER, J.,

text:
    Deanne WILLIAMS v. MONROE CITY SCHOOL BOARD.
    No. 2013-CA-2602.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
    Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, Patricia Hill Wilton, Assistant Attorney General, The Lawrence Law Firm, LLC, Leo Douglas Lawrence, Faircloth Law Group, LLC, Jimmy Roy Faircloth, Jr., Barbara Bell Melton, Christie C. Wood, Alexandria, LA, for Appellant.
    Blackwell & Associates, Brian Francis Blackwell, Baton Rouge, LA, for Appellee.
   PER CURIAM.

IrThe State of Louisiana and the Monroe City School Board invoke the appellate jurisdiction of this court pursuant to La. Const, art. V, 5(D), on the ground the district court declared La. R.S. 17:443(B)(1) and 17:443(B)(2) to be unconstitutional. Pretermitting the merits, we find the judgment at issue is not properly before this court because the underlying proceeding was procedurally defective. In particular, we focus on whether the attorney general was given proper notice and opportunity to participate in these proceedings, as required by La.Code Civ. P. art. 1880.

Plaintiff filed a petition for declaratory judgment and injunctive relief seeking to declare portions of Act No. 1 of 2012 unconstitutional. Although plaintiff requested service on the attorney general, there is no indication service was successfully completed. Rather, it appears the first actual notice the attorney generals office received was on August 1, 2013, when it was served with a copy of the district courts judgment granting plaintiffs request for a preliminary injunction. At that time, the district court allowed the attorney generals office thirty days to |¡>notify the court whether it intended to participate. However, the district court proceeded to try the matter on August 5, 2013, before this thirty-day period elapsed. On the morning of trial, the district court contacted the attorney generals office. From the information presented in the record, there is no indication the attorney generals office declined to participate in the action at that time.

The matter proceeded to trial without the attorney generals participation, at which time the district court declared La. R.S. 17:443(B)(1) and 17:443(B)(2), as amended by Act 1, to be unconstitutional. Thereafter, the attorney general filed a motion to intervene, and a motion for new trial. The district court denied both motions. This appeal followed.

In Vallo v. Gayle Oil Co., 94-1238 at p. 7 (La.11/30/94), 646 So.2d 859, 864, we explained “[t]he attorney general is not an indispensable party; but, he must be served in declaratory judgment actions which seek a declaration of unconstitutionality of a statute.” The purpose of the service requirement in La.Code Civ. P. art. 1880 is to ensure that the attorney general is “afforded the necessary opportunity to be heard as the codal article requires.” Burmaster v. Plaquemines Parish Govt, 07-2432, p. 5, fn. 6 (La.5/21/08), 982 So.2d 795, 801.

In the case at bar, the record indicates the attorney general was - not properly served. Although the attorney general ultimately received actual notice of the suit, the procedural facts reveal the attorney general was not afforded a meaningful opportunity to participate in the proceedings. Accordingly, we must vacate the judgment of the district court and remand the case to the district for a new trial, at [¡¡which time the attorney general shall be afforded a full opportunity to be heard and participate in these proceedings.

DECREE

For the reasons assigned, the judgment of the district court is vacated and set aside. The case is remanded to the district court for further proceedings consistent with this opinion.

WEIMER, J., dissents.

On Writ of Certiorari to the Fourth Judicial District Court for the Parish of Ouachita

WEIMER, J.,

dissenting.

| ^though I agree that the attorney general should have been allowed to participate in the proceedings before the trial court, the ultimate issue presented is a legal question, with no facts in dispute. The arguments of the school board, which fully participated in the matter before the trial court, and the arguments of the attorney general are aligned. Given the signifi-canee of the issues presented to public education and the opportunity for the attorney general to participate fully before this court, I would schedule this matter for briefing and argument to avoid delay and embrace judicial economy.

      . La.Code Civ. P. art. 1880 provides:
      When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In a proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard. If the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard, [emphasis added]

      . There is no transcript of this conversation in the record. In subsequent reasons for judgment, the district court summarized this conversation in rather cryptic terms, stating [t]he Court was not informed by Asst. A.G. Rick McGimsey of the Civil Division of the Louisiana Attorney Generals office that it did intend to participate in the proceedings on behalf of the State. Based on this language, we cannot say there is any evidence the attorney generals office made an affirmative representation that it would decline to participate in these proceedings.


text:
    STATE of Louisiana v. Joshua VALLO.
    No. 2013-K-1369.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   PER CURIAM.

| granted. The court of appeal erred in reversing defendant’s conviction on the basis that his Sixth Amendment right to confrontation was violated because the victim’s refusal to answer questions on cross-examination made her essentially unavailable. State v. Vallo, 47,995 (La.App. 2 Cir. 5/29/13), 117 So.3d 268. The defense did not, however, object to the admission of the recorded forensic interview or when the victim refused to respond on four occasions during cross-examination. La. C.Cr.P. art. 841 generally provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.” See also State v. Arvie, 505 So.2d 44, 47 (La.1987) (“One purpose of the contemporaneous objection rule is to require counsel to call an error to the judge’s attention at a time when the judge may correct the error. The rule also prevents defense counsel from ‘sitting on’ an error and gambling unsuccessfully on |2the verdict, and later resorting to appeal on an error which might have been corrected at trial.”).

In reversing the conviction despite what it acknowledged was the lack of any contemporaneous objection, the court of appeal found the present case “remarkably similar” to State v. in the Interest of R.C., 494 So.2d 1350 (La.App. 2 Cir.1986). Vallo, 47,995 at 30, 117 So.3d at 279. In R.C., however, the defense filed a motion to determine the admissibility of the recorded interview of the victim, and the defense objected to the admission of this recording on the basis that the child refused to answer some questions on cross-examination. See R.C., 494 So.2d at 1351. Nonetheless, the court of appeal in the present case applied a “plain error” rule derived from federal jurisprudence to consider the confrontation violation claim despite the lack of contemporaneous objection because “the claim ... is, if correct, one that would have substantially affected the fairness of the proceedings and the reliability of the fact-finding process.” Vallo, 47,995 at (10./29/13), 117 So.3d 268, 274.

In finding “plain error”, the court of appeal relied on its earlier decision in State v. Thomas, 27,507 (La.App. 2 Cir. 12/6/95), 665 S.2d 629, writ denied, 96-0199 (La.4/8/96), 671 So.2d 333. The court of appeal in Thomas recognized that there have been “circumstances where review has been granted in the absence of a contemporaneous objection [under] fact-specific situations where the relevant errors substantially affected the fairness of the proceeding and the reliability of the fact-finding process.” Id., 96-0199 at 7, 665 So.2d at 633. The court in Thomas relied to a great extent on this Court’s opinion in State v. Williamson, 389 So.2d 1328 (La.1980). In Williamson, this Court reversed a defendant’s conviction for attempted second degree murder because the jury was misinstructed on the | .¡definition of the charged crime and responsive verdicts, although there was no contemporaneous objection to the jury charges. In doing so, this Court stated:

In the case at hand the asserted error involves the very definition of the crime of which defendant was in fact convicted. Such an error is of such importance and significance as to violate fundamental requirements of due process.

Id., 389 So.2d at 1331. This Court has nonetheless warned that Williamson did not establish the equivalent of a federal “plain error” rule. See State v. Howard, 98-0064, p. 18 (La.4/23/99), 751 So.2d 783, 804 (noting that “this Court has also on two occasions explicitly cautioned that Williamson did not establish jurisprudentially the equivalent of a ‘plain error’ rule created by F.R.Crim.P. 52(b)”); see also State v. Thomas, 427 So.2d 428, 435 (La.1982) (on reh’g) (“Williamson should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection at occurrence. This court has not created or recognized a plain error rule of general application.”).

Williamson has never been applied in the context of a claimed confrontation violation. Notably, confrontation violations are subject to harmless-error analysis, see, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986); United States v. Stalnaker, 571 F.3d 428, 434 (5th Cir.2009), and several state courts have found confrontation violation claims waived by lack of contemporaneous objection. See State v. Sharp, 289 Kan. 72, 104, 210 P.3d 590, 610 (2009) (“We have held that a defendant’s failure to timely object at trial to alleged hearsay statements precludes raising the issue on appeal, even where contending a violation of the Confrontation Clause of the Sixth Amendment”); State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987) (“It is well settled in Iowa that objections to evidence must be raised at the earliest opportunity |4after the grounds for objection become apparent [and] [constitutional questions must be preserved in the same manner as any other issue.... There is no question in this record that the confrontation issue was not preserved at trial.”); Jenkins v. State, 102 So.3d 273, 283-84 (Miss.App.2011) (finding that defendant’s “Confrontation Clause issue is waived and not preserved for appellate review since there was no motion in limine or contemporaneous objection.”), aff'd, Jenkins v. State, 102 So.3d 1063 (Miss.2012) (finding that an objection by defense counsel sufficed to preserve the issue for review but rejecting the merits of the claim); Deener v. State, 214 S.W.3d 522, 527 (Tex.App.2006) (“[W]e disagree that Deener’s rights under the Confrontation Clause are ... not subject to the requirement that he object in order to protect them”). Similarly, as noted by a federal district court, the contemporaneous objection rule is regularly followed by Louisiana courts on collateral review to reject claimed confrontation violations. See Landry v. Cain, Slip Copy, 2013 WL 1103276 *7 (E.D.La.2013) (collecting cases).

Accordingly, we find that the court below erred to the extent it extended the principle originating in Williamson to reach an unobjected-to confrontation violation and applied what amounts to a “plain error” rule to relieve the defendant from the necessity of contemporaneously objecting to a claimed confrontation violation. Therefore, the ruling of the court below is reversed. Because defendant also argued on appeal that his sentence is excessive, which issue was not reached by the court below, the matter is remanded to the court of appeal for consideration of this preter-mitted sentencing claim.

REVERSED AND REMANDED.

HUGHES, J., dissents and would affirm the court of appeal.


author: CLARK, Justice,

text:
    STATE ex rel. Michelle NICKS v. STATE of Louisiana.
    No. 2013-KH-0979.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Eugene JOSEPH v. STATE of Louisiana.
    No. 2013-KH-1091.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Corey D. WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-0738.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Theodore MATHIS v. STATE of Louisiana.
    No. 2013-KH-0734.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE ex rel. Michael CUMMINGS v. STATE of Louisiana.
    No. 2013-KH-0739.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   CLARK, Justice,

with additional reasons for the denial.

The trial court was correct. See State v. Dick, 2006-2223 (La.1/26/07); 951 So.2d 124.

JOHNSON, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Robert WILKINS.
    No. 2013-KK-2539.
    Supreme Court of Louisiana.
    Jan. 15, 2014.
    Rehearing Denied Feb. 21, 2014.
    See also, 94 So.3d 983.
   PER CURIAM.

11 Writ granted; relief denied. We agree with defendant that there is no meaningful distinction between “retreat” and “escape” for purposes of applying Louisiana’s long-standing jurisprudential rule that a person has no absolute duty to retreat from a life-threatening situation, but that the possibility of retreat is a factor in determining whether the use of deadly force in response was justified under all of the circumstances of the lethal encounter. See State v. Brown, 414 So.2d 726, 729 (La.1982) (“Although there is not an unqualified duty to retreat the possibility of escape is a recognized factor in determining whether or not a defendant had the reasonable belief that deadly force was necessary to avoid the danger.”) (citations omitted). We further agree with defendant that the effect of the 2006 La. Acts 141, amending La.R.S. 14:20 and adding subsections C and D to the statute, was two-fold: a person may choose to defend himself or herself with deadly force under the circumstances defined in R.S. 14:20(A), without considering whether retreat or escape is possible, i.e., a person “may stand his or her ground and meet force with force” (C); and he or she may do so without fear that, if it came to it, a jury may nevertheless second guess the decision not to flee from the encounter in assessing whether the use of deadly force was justified (D). The overall effect of the 2006 amendments was thus to supplant a jurisprudential rule so deeply entrenched in |2Louisiana law that some decisions continue to adhere to it to this day. See, e.g., State v. Vedol, 12-0376, p. 7 (La.App. 5 car. 3/13/13), 113 So.3d 1119, 1124 (“[TJhis Court has continued to recognize that while there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger.”) (citation omitted). The legislature is, however, “presumed to have enacted a statute in light of preceding statutes involving the same subject matter and decisions construing such statutes, and, where the new statute is worded differently from the preceding statute, the Legislature is presumed to have intended to change the law.” State v. Johnson, 03-2993, pp. 14-15 (La.10/19/04), 884 So.2d 568, 577 (internal quotation marks and citation omitted).

We nevertheless disagree with defendant that subsection D may be detached from subsection C, and that the former, which plainly states that “[n]o finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary,” made only a purely procedural change in the law with respect to how trial judges instruct jurors and therefore applies to all trials conducted after the effective date of its enactment in 2006, although the crime for which the defendant is charged, and for which he claimed the right of self-defense, occurred before that effective date. See State v. Sepulvado, 342 So.2d 630, 635 (La.1977) (“Procedural laws relate exclusively to questions of remedy and, in criminal cases, pertain to the method prescribed for the conduct of the prosecution. Enactments of this nature may regulate the mode of prosecution after their effective date ... for no one has a vested right in a mere mode of procedure.”) (citations omitted). To the extent that subsection D [¡¡effectuates the right conferred by Subsection C on an individual to “stand his or her ground” without weighing the possibility of escape or retreat before responding with deadly force, an unqualified right that did not exist previously in Louisiana, the two subsections work in tandem, not separately, to make a substantive change in the law because they directly impact not only how trials are conducted, and how juries may be instructed, but also how individuals may conduct themselves when confronted with situations that they perceive, reasonably or not, to present an imminent threat to their own lives. Segura v. Frank, 630 So.2d 714, 723 (La.1994) (“Substantive laws establish new rules, rights, and duties or change existing ones.”). As a substantive change in the law, and as the Fourth Circuit found in State v. Mahler, 11-0857 (La.App. 4 Cir. 2/27/13), _ So.3d _, writ denied, 13-0687 (La.11/1/13), 125 So.3d 417, subsections C and D apply together and prospectively only to cases in which the charged crime, as to which the defendant asserts his right of self-defense, occurred after the effective date of the 2006 La. Acts 141.


text:
    In re Phyllis A. SOUTHALL.
    No. 2014-B-0062.
    Supreme Court of Louisiana.
    Jan. 15, 2014.
   ORDER

| ¶ Considering the Joint Petition for Interim Suspension filed by respondent, Phyllis Southall, and the Office of Disciplinary Counsel,

IT IS ORDERED that Phyllis Southall, Louisiana Bar Roll number 18693, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana