source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Fernando Garcia MANTILLA, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D11-4377.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2012.
    Fernando Garcia Mantilla, pro se, Appellant.
    M. Elaine Howard, Tallahassee, for Ap-pellee.
   MARSTILLER, J.

The Reemployment Assistance Appeals Commission (“Commission”) affirmed a decision by an appeals referee finding Fernando Garcia Mantilla ineligible for unemployment compensation benefits. Mr. Mantilla, a non-United States citizen, was deemed not available for work during the period for which he sought benefits because he failed to submit an Employment Authorization Document (“EAD”) issued by the Department of Homeland Security, U.S. Citizenship and Immigration Services (“USCIS”) showing he was authorized to work in this country during the relevant period. Mr. Mantilla appeals the Commission’s final order, arguing that the document he submitted — a USCIS-issued 1-94 form showing that he has been granted asylum — is sufficient to prove his authorization to work here.

Mr. Mantilla correctly asserts that he is authorized to work in the United States incident to his asylee status, and he does not need an EAD to effect such authorization. See 8 C.F.R. § 274a.12(a)(5) (2011); see also Immigration and Naturalization Service Policy and Procedure Memorandum HQCOU 90/15 at 1 (June 17, 2002) (“Because an alien granted asylum is employment authorized incident to his or her status, such alien is authorized for employment regardless of whether he or she has applied for or been issued an EAD.”), available at 2002 WL 82071737(INS). However, the EAD is evidence of employment authorization that benefits-issuing agencies, like Florida’s Office of Reemployment Assistance, may require in order to verify a claimant’s immigration status and authorization to work. See 8 C.F.R. § 274a.12(a) (2011); see also Immigration and Naturalization Service Memorandum for Regional Directors HQADJ 70/21.1.13 at 2 (Mar. 10, 2003), available at http:// www.uscis.gov/files/pressrelease/Asylees 031003.pdf (last accessed Dec. 6, 2012).

The Office of Reemployment Assistance (“Office”) uses the SAVE (Systematic Alien Verification for Entitlement) system to verify employment authorization. See Fla. Admin. Code R. 73B-11.013(2)(c). When authorization cannot be verified via SAVE, the Office requires “[d]ocumentation from the [USCIS] verifying authorization to work in the United States[.]” Id. In Mr. Mantilla’s case, SAVE failed to confirm his immigration and employment status. Consequently, the Office required Mr. Mantilla to submit an EAD. This was not error, and the Office will reconsider Mr. Mantilla’s claim once he provides the document. See id. (“A determination denying benefits due to the absence of authorization to work will be reconsidered when the claimant furnishes the required documentation.”).

AFFIRMED.

PADOVANO and SWANSON, JJ., concur.

      . USCIS is the successor agency to Immigration and Naturalization Service.

      . SAVE is a web-based service provided by USCIS. See http://www.uscis.gov (last accessed Dec. 6, 2012).


author: PER CURIAM.

text:
    William BROWNING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6236.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2014.
    William Browning, 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:
    Blas J. PRIETO, Appellant, v. CITIBANK, N.A., Appellee.
    No. 3D12-2489.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2014.

      Stephen H. Butter, Miami, for appellant.
    GrayRobinson, P.A., Jeffrey T. Kuntz and Thomas H. Loffredo, Fort Lauderdale, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Upon appellee’s proper confession of error, we reverse the final summary judgment and remand to the trial court for further proceedings. We conditionally grant appellant’s motion for appellate attorneys fees and'remand to the trial court for further proceedings thereon should appellant ultimately prevail below.


author: THOMAS, J.

text:
    Julius McGRIFF, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1741.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2007.
    Julius McGriff, pro se, Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the trial court’s order denying his motion for postconviction relief. Because the trial court improperly held that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), do not apply to Appellant’s case, we reverse.

On November 13, 1988, Appellant was convicted of second-degree murder with a firearm, armed burglary with a firearm, and armed robbery with a firearm. Appellant was sentenced as an habitual felony offender to an upward departure sentence of life imprisonment on the charge of second-degree murder. This court affirmed the judgment and sentence. See McGriff v. State, 553 So.2d 232 (Fla. 1st DCA 1989).

Appellant filed a rule 3.800(a) motion to correct illegal sentence, which the trial court denied. This court affirmed in part and reversed in part, directing the trial court to reconsider the claim that because the second-degree murder conviction had been enhanced to a life felony, Appellant could not be sentenced as an habitual felony offender. See McGriff v. State, 775 So.2d 371 (Fla. 1st DCA 2000). On remand, the trial court entered an amended judgment and sentence reflecting that Appellant’s life sentence was no longer an habitual felony offender sentence. Both parties appealed the trial court’s action. McGriff v. State, 796 So.2d 1207 (Fla. 1st DCA 2001); State v. McGriff, 819 So.2d 817 (Fla. 1st DCA 2002). During the pen-dency of the appeal, Appellant filed a rule 3.800(b)(2) motion to correct sentencing errors; the trial court granted the motion and vacated Appellant’s life sentence. On June 20, 2003, the trial court resentenced Appellant to life imprisonment, relying on the same reasons that were articulated by the original sentencing court to impose the upward departure.

Appellant claimed that the reasons used to support his upward departure sentence were found by a judge, which is in violation of his right to have all facts increasing his sentence beyond the statutory maximum to be found by a jury, as explained in Apprendi and Blakely. The trial court denied Appellant’s claim on the ground that Apprendi and Blakely do not apply retroactively to his 1989 conviction. This court made clear in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), however, that Apprendi and Blakely apply to cases where the defendant is resentenced after those cases were decided. This court is the only district to hold that applying Apprendi and Blakely under these circumstances does not constitute a retroactive application of those decisions. Compare Isaac, 911 So.2d at 814 (“The state’s argument that Apprendi is not retroactive is a valid statement of the law, see Hughes v. State, 826 So.2d, 1070 (Fla. 1st DCA 2002); however, as Apprendi was decided prior to appellant’s resentencing, the trial court was bound by its holding.”), with Langford v. State, 929 So.2d 598 (Fla. 5th DCA 2006) (certifying conflict with Isaac and agreeing with Judge Kahn’s dissent in Isaac that applying Blakely under these circumstances is a retroactive application of that case); Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005) (holding Apprendi does not apply retroactively to convictions rendered prior to its issuance, notwithstanding future resentencing proceedings post-Blakely, and certifying conflict with Isaac), rev. pending, SC05-1341 (Fla. July 29, 2005); Garcia v. State, 914 So.2d 29 (Fla. 4th DCA 2005) (certifying conflict with Isaac).

In the instant case, Appellant was resen-tenced on June 20, 2003, after the Supreme Court’s decision in Apprendi. Further, on June 24, 2004, while Appellant’s appeal of his new sentence was pending and not yet final, the Supreme Court decided Blakely. Because Apprendi and Blakely were decided prior to Appellant’s resentencing becoming final, Apprendi and Blakely apply to Appellant’s case.

We therefore reverse the summary denial of Appellant’s motion for postconviction relief and remand to the trial court for resentencing or to refute the claim with record attachments. We also certify conflict with Cutts v. State, 940 So.2d 1246 (Fla. 2d DCA 2006); Langford v. State, 929 So.2d 598 (Fla. 5th DCA 2006); Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005); and Garcia v. State, 914 So.2d 29 (Fla. 4th DCA 2005).

CONFLICT CERTIFIED; AFFIRMED in part, REVERSED in part, and REMANDED.

HAWKES and ROBERTS, JJ., concur.


author: LEWIS, J.

text:
    Joseph Burrell JUNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5242.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2012.
    Rehearing Denied Feb. 8, 2013.

      Nancy Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Appellee.
   LEWIS, J.

Joseph Burrell June, Appellant, appeals his conviction and five-year sentence for possession of cocaine, in violation of. section 893.13, Florida Statutes (2010). Appellant argues that the trial court erred in denying his motion to suppress and motion to dismiss. We affirm the trial court’s denial of his motion to dismiss without further discussion. Appellant challenges the denial of his motion to suppress cocaine found on his person on the ground that it was seized pursuant to an illegal stop and frisk. For the reasons that follow, we also affirm the denial of the motion to suppress.

Officer Von Ansbach Young (“Officer Young”) of the Escambia County Sheriffs Office testified that on the day at issue, Appellant was riding his bicycle on Gulf Coast Highway in Escambia County, heading eastbound. Officer Young was driving his patrol car and was also heading eastbound, approaching Appellant from behind him; he pulled his car off to the side of the road behind Appellant. Officer Young did not activate his patrol lights, but he exited the vehicle. Appellant turned around and observed Officer Young, but Officer Young did not order Appellant to stop. Officer Young had never seen Appellant in the area, so he began to converse with Appellant; he had no reason to believe that Appellant was engaged in criminal activity. Officer Young asked Appellant if he had identification, and he gave Officer Young his identification card. Officer Young took the identification card and reported Appellant’s information to dispatch to determine if Appellant had any arrest warrants, but returned the card to Appellant as he waited to hear from dispatch. When Officer Young first began talking with Appellant, he was “agreeable,” but he continued to reach into his pockets while speaking to Officer Young. Eventually, Officer Young asked for consent to search, but Appellant refused. When Officer Young asked to search Appellant, he inquired whether Appellant had any contraband on his person, and Appellant stated he did not, but also divulged that he had a pocketknife in his front-right pants pocket. Appellant then began “fidgeting” or exhibiting “nervous energy.”

Officer Young continued to speak with Appellant, and Appellant continued reaching into his pockets; at that point, Young asked him to stop doing so, as he was concerned about the pocketknife and other potential weapons. Appellant stated that the request was not a problem, and the conversation continued; however, Appellant reached into his pockets again two or three times. Officer Young then informed Appellant that he would conduct a pat-down for safety reasons, and he conducted the pat-down to secure the pocketknife and search for other possible weapons. First, Officer Young secured the pocketknife found in Appellant’s front-right pants pocket. Then, Officer Young patted down the other pockets, but “[i]t wasn’t an invasive search, by any means. It was just feeling the outer part of his clothing to make sure there were no other weapons that could harm me at that time.” The shirt pocket was part of “a plaid shirt without a top flap.” Officer Young “just felt the bottom of that pocket and immediately felt a plastic baggy with a rock-like substance in it.” The packaging was consistent with cocaine’s packaging, as it was in a plastic baggy, and Officer Young could feel the rock-like pieces at the bottom of the baggy. Officer Young stated that “[d]ue to training and experience, [he] knew immediately that it was [going to] be cocaine.” Officer Young field-tested the substance, which produced a positive result for cocaine.

At the close of testimony, the trial court denied Appellant’s motion to suppress the cocaine. In doing so, the trial court found that Officer Young had a legal right to conduct a pat-down to search for weapons when Appellant admitted that he had a pocketknife and continued to reach his hand in the pocket where he had a pocketknife, and that the cocaine would be admitted under the plain-feel doctrine because Young testified that, due to his training, he knew immediately what it was upon touching it.

“ ‘A trial court’s ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.’ ” Brye v. State, 927 So.2d 78, 80 (Fla. 1st DCA 2006) (quoting Murray v. State, 692 So.2d 157, 159 (Fla.1997)). The State Constitution requires this Court to resolve Fourth Amendment search and seizure issues in conformity with applicable United States Supreme Court precedent. See Art. I, § 12, Fla. Const. (“This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”); see also State v. Robinson, 740 So.2d 9, 12 n. 2 (Fla. 1st DCA 1999). “[A] trial court’s ruling on a motion to suppress is a mixed question of law and fact that ultimately determines constitutional rights and should be reviewed using a two-step approach — deferring to the trial court’s findings of fact as long as they are supported by competent, substantial evidence, but reviewing de novo a trial court’s application of law to the historical facts.” Delhall v. State, 95 So.3d 134, 150 (Fla.2012) (citing Connor v. State, 803 So.2d 598, 605 (Fla.2001), and Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Under the exclusionary rule created by the United States Supreme Court, “[e]vidence obtained directly or indirectly from a violation of the [F]ourth [A]mendment is not admissible against an accused at trial.” State v. Edward, 25 So.3d 610, 611 (Fla. 1st DCA 2009) (citing State v. Griffith, 500 So.2d 240, 243 (Fla. 3d DCA 1986)).

The Florida Supreme Court has explained that there are three levels of encounters between citizens and law enforcement that determine whether Fourth Amendment protections apply:

There are essentially three levels of police-citizen encounters. The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.
While not involved in the instant case, the third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed. Popple v. State, 626 So.2d 185, 186 (Fla.1993) (internal citations omitted).

“[T]he totality of the circumstances controls in cases involving the Fourth Amendment.” Brye, 927 So.2d at 83 (alteration in original) (quoting State v. Baez, 894 So.2d 115, 117 (Fla.2004)). The Fourth District has noted that “analytical difficulty in this area arises because it can be hard to distinguish a citizen encounter from an investigatory stop. Some cases turn on the fact that an officer’s conduct went beyond a consensual encounter and amounted to an investigatory stop for which there was an inadequate basis.” Johnson v. State, 785 So.2d 1224, 1228 (Fla. 4th DCA 2001) (citations omitted). It is constitutionally permissible for law enforcement to conduct a pat-down if an encounter begins as a consensual encounter, even when there is no reasonable belief at the inception of the encounter that criminal activity occurred or was underfoot, if subsequently law enforcement has a reasonable belief that the citizen is armed or potentially dangerous. See id. at 1226, 1229 (citing Lightbourne v. State, 438 So.2d 380 (Fla.1983), as controlling, and further noting that “[a]n officer’s observations during a consensual encounter can give rise to a reasonable belief of both a weapons violation and a potential danger to the officer, which transform the encounter into an investigatory stop, justifying a protective pat[-]down.”).

The Second and Fifth Districts have held that an officer’s request to remove one’s hand from a pocket will not convert a consensual encounter into an investigatory detention when made to ensure an officer’s safety. See Lang v. State, 671 So.2d 292, 294 (Fla. 5th DCA 1996) (“Nor is it improper for an officer to ask a person to remove his hands from his pockets during a citizen encounter.”) (citation omitted); Sander v. State, 595 So.2d 1099, 1100 (Fla. 2d DCA 1992) (“[I]t was not improper for [law enforcement] to ask Sander to remove his hands from his pockets.”). On the other hand, other districts have held that an officer’s request to remove one’s hand from a pocket will convert a consensual encounter into an investigatory detention. See Johnson v. State, 610 So.2d 581, 588 (Fla. 1st DCA 1992) (“Appellant was seized, as Officer Bates’ order for [ajppellant to take his hands out of his pockets and to turn around was a directive that [ajppellant was not free to disregard.”) (citing Dees v. State, 564 So.2d 1166, 1168 (Fla. 1st DCA 1990)); Evans v. State, 546 So.2d 1125, 1125 (Fla. 3d DCA 1989) (“[T]he contraband was not, as the trial judge held, voluntarily abandoned, but was rather revealed only because of a constitutionally unjustified police order.”); Lee v. State, 868 So.2d 577, 580 (Fla. 4th DCA 2004) (“The request by [law enforcement] for Lee to remove his hand from his pocket amounted to a stop.”). Under Fourth Amendment jurisprudence, a seizure or stop occurs “when one’s freedom of movement has been restrained, either by physical force or a showing of authority, so that the surrounding circumstances demonstrate a reasonable person would not have felt free to leave.” Johnson, 610 So.2d at 583 (citing, among other cases, Terry v. Ohio, 392 U.S. 1, 16-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Initially, Appellant and Officer Young were merely engaged in a consensual encounter, but based on our precedent, Appellant was seized when he was ordered to keep his hands out of his pockets. See id. Thus, Fourth Amendment constitutional safeguards applied at that point, and we must determine whether Officer Young had a reasonable belief at that time to believe that Appellant was armed and potentially dangerous to justify the pat-down.

In Johnson v. State, 785 So.2d 1224 (Fla. 4th DCA 2001), a similar case, the issue was “whether a police officer may conduct a pat-down for weapons during what began as a consensual encounter with a citizen.” Id. at 1225. The Fourth District held that “the officer made observations which supported his reasonable belief that the appellant was armed and potentially dangerous .... [and] was, therefore, entitled to conduct a pat-down under the Fourth Amendment.” Id. The Fourth District explained that the pat-down was justified because “[t]he time of day, the bulge in Johnson’s pocket, his continuous reaching toward the pocket, his nervousness, his demeanor, and his violent shaking during the interview, when viewed in light of Deputy McDonald’s experience, gave rise to a reasonable belief that Johnson was armed and potentially dangerous.” Id. at 1228.

Here, Officer Young initially began a consensual encounter with Appellant. Officer Young pulled his patrol car behind Appellant while he was riding his bicycle, and never ordered him to stop, but merely engaged in a conversation with him. Eventually, Officer Young asked Appellant to keep his hands out of his pockets, and conducted a pat-down of Appellant, after Appellant (1) divulged that he had a pocketknife after being asked if he had any contraband on his person, (2) continuously reached for the pocket carrying the pocketknife, and (3) was nervous after revealing that he had a pocketknife. Like Johnson, Appellant was nervous; particularly, he was “fidgeting” and exhibiting “nervous energy” after being asked if he had any contraband on his person. Also, instead of observing a bulge in Appellant’s pocket as occurred in Johnson, Officer Young had stronger evidence to believe that Appellant was armed and potentially dangerous: he admitted that he was carrying a pocketknife that he continuously reached for nervously. We must consider the totality of the circumstances in deciding Fourth Amendment search and seizure issues. Brye v. State, 927 So.2d 78, 83 (Fla. 1st DCA 2006). In the instant case, like Johnson, the totality of the circumstances shows that Officer Young had a reasonable belief that Appellant was armed and potentially dangerous, and thus he was entitled to conduct a pat-down of Appellant.

Further, Appellant argues that even if Officer Young was justified in conducting the pat-down, he exceeded the permissible scope of the pat-down. Specifically, Appellant argues that the trial court erred in holding that the plain-feel doctrine applies. In Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the Supreme Court established the plain-feel doctrine, in which it explained the doctrine and the rationale for creating it as follows:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Applying the newly created doctrine to the facts in Dickerson, the Supreme Court explained that law enforcement exceeded the scope of the frisk because he did not immediately recognize the lump as crack cocaine; rather, “the officer determined that the lump was contraband only after ‘squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket’ — a pocket which the officer already knew contained no weapon.” Id. at 378, 113 S.Ct. 2130.

Here, Officer Young clarified that his pat-down “wasn’t an invasive search, by any means. It was just feeling the outer part of his clothing to make sure there were no other weapons that could harm me at that time.” Officer Young also testified that he “just felt the bottom of that pocket and immediately felt a plastic baggy with a rock-like substance in it. Due to training and experience, I knew immediately that it was [going to] be cocaine.” Officer Young lightly patted the shirt pocket to determine whether Appellant had a weapon in it, and immediately recognized that the baggy probably contained crack cocaine. Thus, under the circumstances of this case, the trial court did not err in concluding that the plain-feel doctrine applies.

For the foregoing reasons, the trial court did not err in denying Appellant’s motion to suppress the cocaine. Accordingly, we affirm Appellant’s judgment and sentence.

AFFIRMED.

BENTON, C.J., and ROWE, J„ concur.

      . The record is silent as to whether Officer Young ever received a response from dispatch as to the warrants check.

      . Appellant claims that carrying a pocketknife does not render a citizen armed and dangerous, noting that a pocketknife is excluded from the definition of "weapon” in section 790.001(13), Florida Statutes (2010). However, chapter 790 "deals primarily with permitting and licensing for the carrying of concealed weapons and other firearm and weapon regulations.” Dobson v. State, 737 So.2d 590, 591 (Fla. 4th DCA 1999). In Dobson, the Fourth District stated that it would be an unreasonable interpretation that an officer could not deem a citizen armed and dangerous for purpose of the stop and frisk law merely because an item was not listed as a weapon in section 790.001(3), a regulatory statute. Id. at 592. We agree.


text:
    Jeanne Chitty CAMPBELL, Individually, As Trustee of the Jeannette Z. Chitty Revocable Trust, As Trustee U/W Henry M. Chitty, Jr., and As Trustee U/W Louise S. Zetrouer, and Chitty-Alachua, a Florida Limited Liability Company, Stardust Angus Ranch, LLC, a Florida Limited Liability Company, Stardust Angus Ranch, Ltd., a Florida Limited Partnership, Stardust Angus Ranch, Inc., a Florida Corporation, Chitty-Marion, LLC, a Florida Limited Liability Company, and Chad E. Campbell, Individually, Appellant, v. Henry M. CHITTY, III, Appellee.
    No. 1D12-0861.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2012.
    Rehearing Denied Jan. 25, 2013.
    John S. Mills and JoLen Rawls Wolf of The Mills Firm, P.A., Tallahassee, for Appellant.
    Guy W. Norris of Norris & Norris, P.A., Lake City, for Appellee.
   PER CURIAM.

Appellants challenge the trial court’s final order directing the liquidation of trust assets and imposing monetary sanctions against Jeanne Chitty Campbell for breach of her fiduciary duty as trustee of the Jeannette Z. Chitty Revocable Trust, the Henry M. Chitty, Jr. Trust, and the Louise Zetrouer Trust. Appellants raise several issues on appeal; however, we write only to address the issues arising from the imposition of money judgments against Mrs. Campbell. All other issues on appeal are affirmed without further comment.

In this case, the trial court awarded Appellee damages for Mrs. Campbell’s breach of the above-named trusts. However, the Jeannette Z. Chitty Revocable Trust contained an indemnification clause that held the trustee harmless from any damages or liabilities for the trustee’s actions or omissions as long as the trustee’s actions or omissions were not negligent. In this case, the trial court never made a finding that Mrs. Campbell’s actions as trustee of the Jeannette Z. Chitty Revocable Trust were negligent. Thus, all of the damages, including attorney’s fees, imposed for breach of this trust are reversed. On remand, the trial court is directed to make factual findings as to whether or not Mrs. Campbell’s actions rose to the level of negligence. The court may only award damages for the breach of the Jeannette Z. Chitty Revocable Trust if it finds that Mrs. Campbell’s actions were negligent.

The remaining money judgments imposed against Mrs. Campbell are also reversed. The trial court not only directed Mrs. Campbell to repay certain amounts to the trusts, but it also directed those amounts to be set off from Mrs. Campbell’s share of the trust. Thus, the trial court essentially awarded Appellee double recovery on all of the judgments. Accordingly, we reverse the remaining money judgments and remand for the trial court to enter an order directing Mrs. Campbell to repay the designated amounts or for those amounts to be set off against her share of the trust. Based on the reasoning in this opinion, we granted, by separate order, Appellant’s oral motion to stay the final judgment because liquidation of the real property is premature until the trial court can ascertain Appellant’s ultimate liability to the trust.

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

DAVIS, THOMAS, and ROWE, JJ., concur.


author: VAN NORTWICK, J. MAKAR, J.,

text:
    STATE of Florida, Petitioner, v. Stephen M. COVINGTON, Respondent.
    No. 1D12-1885.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2012.

      Pamela Jo Bondi, Attorney General, Carolyn M. Snurkowski, Associate Deputy Attorney General, and Charlie R. McCoy, Senior Assistant Attorney General, Tallahassee, for Petitioner.
    Major B. Harding and Erik M. Figlio of Ausley & McMullen, Tallahassee, for Judge Charles Dodson.
    Honorable Ronald Ficarrotta, Chair, Conference of Circuit Judges of Florida, Inc., Tampa, for Amicus Curiae.
   VAN NORTWICK, J.

The State Attorney for the Second Judicial Circuit seeks a petition for a writ of certiorari or, in the alternative, a writ of prohibition. By his petition, the State Attorney, Willie Meggs, seeks to overturn an order entered by the Honorable Charles W. Dodson in the above-styled cause. The order at issue requires the Office of the State Attorney to prepare proposed jury instructions and to submit them to the trial court on the day prior to the commencement of trial in cases pending before Judge Dodson. Because, in entering this order, the trial court did not depart from the essential requirements of the law and did not exceed its jurisdiction, we deny relief.

Certiorari is an extraordinary remedy that is available only in a limited class of cases. State v. Smith, 951 So.2d 954, 956 (Fla. 1st DCA 2007). Further, a writ of certiorari is to be granted only if a trial court commits an error so serious that it amounts to a miscarriage of justice. Id. at 957; and see State v. Pettis, 520 So.2d 250 (Fla.1988). A writ of prohibition is to be granted only when it has been shown that a lower court is without jurisdiction or is attempting to act in excess of jurisdiction. English v. McCrary, 348 So.2d 293, 296 (Fla.1977); Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992).

Petitioner argues that the trial court’s order is a departure from the essential requirements of law and is an act in excess of the trial court’s jurisdiction. We disagree. As a general matter, a trial court has considerable discretion to resolve issues relating to the course and conduct of a criminal trial. See Owen v. State, 773 So.2d 510 (Fla.2000); Green v. State, 951 So.2d 962 (Fla. 1st DCA 2007). Thus, appellate courts traditionally do not interfere with a trial court’s management of its own courtroom. See Ferrer v. State, 718 So.2d 822, 825 (Fla. 4th DCA 1998). By entering the order at issue, the trial court certainly did not depart from the essential requirements of law as a circuit court plainly has the power to create standing procedural orders directing the conduct of litigation in his or her own courtroom. Owen; Green; and see generally McGlocklin v. State, 907 So.2d 1288 (Fla. 3d DCA 2005); Tanner v. State, 724 So.2d 156 (Fla. 1st DCA 1998); Black v. State, 630 So.2d 609 (Fla. 1st DCA 1993).

Petitioner also argues that Judge Dodson’s order is contrary to the Florida Rules of Criminal Procedure, particularly rule 3.390. We cannot agree. The rules of criminal procedure do not preclude the order at issue here. Rule 3.390 requires a judge to orally and in writing instruct the jury on the law of the case at specified times throughout the trial. While the rule requires the jury to be instructed by the trial court, this rule certainly does not preclude the trial court’s consideration of proposed instructions prepared by one of the litigants.

Petitioner argues further that the trial court’s order is an administrative order, rather than a court rule, under the Florida Rules of Judicial Administration. He reasons that, while a trial court has the authority to enter a court rule, only the chief judge of a circuit may enter an administrative order for the circuit. Again, we cannot agree. The term “court rule” is defined in rule 2.120 as a “rule of practice of procedure adopted to facilitate the uniform conduct of litigation applicable to all proceedings, all parties, and all attorneys.” The order at issue plainly sets a practice of procedure for the uniform conduct of criminal litigation in Judge Dodson’s courtroom. As this order is a matter within the broad discretion accorded to a trial court over courtroom management, it is not vio-lative of the rules of judicial administration and is consistent with a trial court’s broad discretion regarding courtroom management.

Petitioner relies heavily on State, Department of Juvenile Justice v. Soud, 685 So.2d 1376 (Fla. 1st DCA 1997). Soud is plainly inapposite. The challenged order in Soud purported to apply to the conduct of all proceedings in the Juvenile Division of the Fourth Judicial Circuit and required the Department of Juvenile Justice, an executive branch agency, to prepare risk assessment instruments in accordance with factors that were inconsistent with the factors outlined in the applicable Florida statute. Judge Soud’s order, unlike Judge Dodson’s order here, was intended to have application outside of his individual courtroom. Furthermore, the order at issue in Soud attempted to legislate and violated the separation of powers because it sought to compel an executive branch agency to take actions in derogation of statutes enacted by the legislature. Id. at 1378-80. Judge Dodson’s order prescribes procedure solely with respect to a core judicial function and does not implicate the separation of powers doctrine.

Because the order of the trial court does not depart from the essential requirements of law and does not exceed the authority of the trial court, the petition for extraordinary relief is DENIED.

WETHERELL, J., Concurs and MAKAR, J., Specially Concurs with Written Opinion.

MAKAR, J.,

specially concurring.

The extraordinary relief sought is not warranted in light of the trial judge’s clarification at the hearing that he does not intend to enforce his jury instructions order in every case set for trial. Instead, he limits application of the order to only those cases where a jury has been selected. This limitation should alleviate what would otherwise be a significant hardship on the State to prepare instructions in the vast majority of cases set for trial that ultimately are resolved without a trial. The trial judge’s order, however, does not contain this verbally announced limitation; it should be amended to make this limitation more widely known so that practitioners understand its applicability.

Because state attorneys are executive branch officials, wielding the prosecutorial authority of the State of Florida, legitimate concerns regarding separation of powers with judicial branch orders can arise. See, e.g., Office of the State Att’y for Eleventh Jud. Cir. v. Polites, 904 So.2d 527, 532 (Fla. 3d DCA 2005) (finding order directing state attorneys and public defenders to pay for mental health exams for litigants they did not authorize to violate separation of powers). But state attorneys are also officers of the court who, under the inherent powers of the judicial branch, can be called upon “to prepare a document for the court’s use in connection with a specific case in which the lawyer represents one of the litigating parties.” United States v. Ray, 375 F.3d 980, 988 (9th Cir.2004); see Polites, 904 So.2d at 532 (“Although the Office of the State Attorney is found in article V of the Florida Constitution, the judicial branch of the State, ‘the decision to prosecute is an ‘executive’ function. A state attorney, while being a quasi-judicial officer, also shares some attributes of the executive.’ ” (quoting Office of the State Att’y, Fourth Jud. Cir. v. Parrotino, 628 So.2d 1097, 1099 n. 2 (Fla.1993))).

In upholding an administrative order requiring a United States Attorney to assemble information in each case for submission to a sentencing commission, the Ninth Circuit in Ray rejected separation of powers concerns, stating that the “Constitution affords courts ample space to demand the assistance of an officer of the court in the context of litigation — even when that officer is also an officer of the executive branch.” Ray, 375 F.3d at 988. In contrast, the imposition of a duty “that is unrelated to the central mission of the judicial branch” would lead to separation of powers problems. Id. Here, the challenged jury instructions order — as clarified — falls readily within the parameters of acceptable judicial practices.

The court in Ray noted that, as a factual matter, compliance with the challenged order would not impair the ability of an executive branch official to fulfill his constitutional obligations; it also found that the “administrative burdens of complying” with the order “appear to be minimal.” Id. at 996, 997 (noting that compilation of sentencing reports in the 600 cases at issue “consumed the equivalent of one-third of the time of one full-time employee in that District’s probation department”). In contrast, a judicial order that imposes undue administrative burdens could be viewed as an abuse of judicial discretion and thereby render the order invalid. Id. at 997-98.

As a judicial policy matter, it is a legitimate concern of state attorneys that an across-the-board requirement that they file jury instructions in every case set for trial would have a serious impact on their office management practices and unfairly shift the economic burden to them for this aspect of judicial administration. State attorneys (and public defenders) operate on limited budgets and have hectic schedules; a compulsory practice that applies to all cases set for trial, not just those actually going to trial, puts unnecessary and potentially wasteful pressure on these budgets and schedules. The extra time and resources expended for such a practice also necessarily displace important activities that would otherwise be performed. If an administrative order is unduly burdensome because it disrupts the operations of a state attorney’s functions in a substantial way, an abuse of discretion may be found. Here, the trial judge’s refinement of his jury instructions order is an important one that should reduce the State’s concerns, thereby making the relief sought unnecessary.


text:
    Jackie B. BELLOMY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5479.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2012.
    Rehearing Denied Jan. 30, 2013.
    Jackie Bellomy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    Ulysses BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4834.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2012.
    Rehearing Denied Jan. 31, 2014.

      Ulysses Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition is hereby dismissed, as warned in Brown v. McNeil, 22 So.3d 741 (Fla. 1st DCA 2009). Consistent with that opinion and with Section 944.279(1), Florida Statutes, this court finds the instant petition for writ of habeas corpus to be frivolous. The clerk of this court shall forward a certified copy of this order “to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.” Fla. Stat. § 944.279(1).

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


author: LaROSE, Judge.

text:
    LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellant, v. MI WINDOWS & DOORS, INC., f/k/a MI Home Products, Inc., Appellee.
    Nos. 2D12-2793, 2D12-2800.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 2013.
    Anthony J. Russo, R. Steven Rawls, and Rebecca C. Appelbaum of Butler Pappas Weihmuller Katz Craig LLP, Tampa; and Nina S. Whiston of Akerman Senterfitt, Miami, for Appellant.
    R. Hugh Lumpkin, Meghan C. Moore, W. Allen Bonner, and Dale S. Dobuler of Ver Ploeg & Lumpkin, P.A., Miami, for Appellee.
   LaROSE, Judge.

Liberty Mutual Fire Insurance Company appeals a final summary judgment ruling that Liberty had to pay its insured, MI Windows & Doors, Inc., for the $3.4 million MI paid to settle several defective-product lawsuits. We conclude that the trial court erred in ruling that the “your product” exclusion in the policy was inapplicable to the cost of replacing Mi’s defective doors. Accordingly, we reverse, in part, and affirm, in part.

MI manufactures windows and doors. In the late 1990s and early 2000s, MI sold windows and doors to All Seasons, which agreed to install these products in five condominium projects under construction along the Alabama coast. All Seasons subcontracted the installation work to third parties. In two of the condominiums, the doors were installed with no change. In the other three, All Seasons manufactured and installed transoms running atop sliding-glass doors. Apparently, this change weakened the structural integrity of the doors.

MI was a named insured under a Liberty commercial general liability (CGL) policy. During the policy period, tropical storms Hanna and Isidore slammed the Alabama coast, damaging each condominium. Five condominium associations sued MI and All Seasons. While these suits were pending, Hurricane Ivan ravaged the Alabama coast in September 2004. Without question, Ivan was a potent storm and caused extensively more damage than the tropical storms. MI settled the lawsuits. Invoking the protections of the CGL policy, MI then sued Liberty to recover the consequential damages and the cost of repairing and replacing the defective doors or windows at each condominium.

The CGL policy provides coverage on an occurrence basis. An “occurrence” is “an accident, including continuous or repeated exposure to substantially the same harmful conditions.” The policy provides a $500,000 deductible for every “occurrence.” This deductible can be satisfied with losses paid. The policy also features a “your product” exclusion which bars coverage for damage to any of Mi’s “products.”

The trial court granted summary judgment to MI. The trial court found two “occurrences.” The first was “the distribution of a series of allegedly defective windows and doors”; the second was “the unanticipated alteration of sliding glass doors [with transoms] in three of the five condominiums.” The trial court also concluded that the “your product” exclusion did not apply to the doors with transoms, because the doors were “significantly changed by others after the sale[,] contributing to the consequential damage suffered.” The court found that there was $3,484,600 worth of damages covered by the policy, $1,925,700 of which was for replacement of the transom doors. Because the policy had a $1,000,000 per-occurrence limit, the court awarded MI $2,000,000 in damages.

Dissatisfied with the result, Liberty appealed.

Standard of Review

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). We review the final summary judgment de novo. Id.

“Your Product” Exclusion

Liberty challenges the trial court’s ruling that the “your product” exclusion did not limit its liability. We must agree with Liberty. The exclusion’s language is unambiguous:

2. Exclusions This insurance does not apply to:
k. Damage to Your Product “Property damage” to “your product” arising out of it or any part of it.

Few Florida cases address the issue of coverage for altered products. Although the trial court wrote that “Florida courts have adopted a similar understanding,” it cited only one Florida case, Broward Marine, Inc. v. Aetna Insurance Co., 459 So.2d 330, 331 (Fla. 4th DCA 1984). In Broward, the insured manufactured a boat that subsequently burned to the waterline. Id. at 331-32. The insurer claimed that a “your product” exclusion barred coverage because corrective work was done before the boat burned. Id. The court held that a question of fact remained as to whether the boat was repaired to correct a defect. Id. at 332. This case, along with other Florida cases, gives no conclusive answer to the issue before us.

Despite the dearth of applicable case law, the trial court held the “your product” exclusion inapplicable because the doors were so materially changed by the addition of the transoms that they were no longer Mi’s “product.” The trial court relied on Imperial Casualty & Indemnity Co. v. High Concrete Structures, Inc., 858 F.2d 128 (3d Cir.1988), where the Third Circuit held that when the insured’s steel sheets were stamped into washers by the purchaser, they became “a new product.” Id. at 134. The trial court also cited Pittsburgh Plate Glass Co. v. Fidelity & Casualty Company of New York, 281 F.2d 538 (3d Cir.1960). In Pittsburgh, the court held that paint that had been baked into jalousies was “no longer identifiable as a separate entity” and was covered by the liability insurance policy. Id. at 541; see also Aetna Cas. & Sur. Co. v. M & S Indus., Inc., 64 Wash.App. 916, 827 P.2d 321 (1992) (holding that plywood used to construct concrete form boxes was “altered”).

These cases are distinguishable from the one before us. No alchemy confronts us. The addition of transoms to the sliding glass doors did not fundamentally change the nature and function of those doors. This is far different from stamping steel into a washer or baking paint onto a jalousie. Common sense dictates that the doors were not “made into something else.” See Imperial, 858 F.2d at 135. The doors retained their identity after being hung on transoms. They continued to operate as sliding glass doors. Thus, the doors remained Mi’s product, and the “your product” exclusion precludes any damages awarded to replace them.

We reverse the damages awarded in relation to the “your product” exclusion. In all other aspects, we affirm.

Affirmed in part; reversed in part.

KELLY and SLEET, JJ., Concur.

      . Auto-Owners Insurance Co. v. American Building Materials, Inc., 820 F.Supp.2d 1265, 1272 (M.D.Fla.2011), dealt with a “your product” exclusion. The policy defined "your product” as "[a]ny goods or products, other than real property ... sold ... by ... you.” The insurer argued that the "your product” exclusion precluded coverage for drywall that had been installed in a house. The court held that, as incorporated in the building, the drywall is "real property,” thus rendering the "your product” inapplicable. Neither party framed their issues on appeal to address this situation.


author: PER CURIAM. WETHERELL, J., MAKAR, J.,

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Vernell SMITH, as Personal Representative of the Estate of Emmon Smith, Appellee.
    No. 1D12-2778.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Rehearing Denied Feb. 6, 2014.
    Larry Hill and Charles F. Beall, Jr. of Moore, Hill & Westmoreland, Pensacola, Stephanie E. Parker and John M. Walker of Jones Day, Atlanta, Georgia, and Donald B. Ayer and Gregory G. Katsas of Jones Day, Washington, D.C., for Appellant.
    John G. Crabtree, George R. Baise, Jr., and Donald P. Fitzgerald III of Crabtree & Associates, Key Biseayne, J.B. Harris of J.B. Harris, P.A., Coral Gables, Stuart N. Ratzan and Scott Vezina of Ratzan Law Group, Miami, Richard Diaz, Coral Gables, and Robert D. Trammell, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307 (Fla. 1st DCA 2012).

CLARK, J., concurs.

WETHERELL, J., specially concurring.

WETHERELL, J.,

specially concurring.

Appellant raised six issues in this Engle progeny appeal, four of which are merit-less. The other two issues — which challenge the excessiveness of the compensatory and punitive damage awards — have merit in my view, but are foreclosed by this court’s decision in R.J. Reynolds Tobacco Company v. Townsend. Accordingly, despite my continued disagreement with Townsend, I am duty-bound to concur in the decision affirming the judgment in this case.

With respect to the compensatory damages, I agree with Appellant that the evi-dentiary basis for an eight-figure noneco-nomic damage award in this case was quite thin. However, I am persuaded based on my review of the record that the plaintiff in this case suffered as much as, if not more than, the plaintiff in Townsend. Accordingly, I agree with Appellee that there is no principled way to square a reversal of the compensatory damage award in this case with the affirmance of the similar award in Townsend.

Simply put, if the $10.8 million noneco-nomic damage award to Mrs. Townsend, who established little more than that she was saddened by her husband’s untimely death from smoking-caused cancer, was not excessive, then it logically follows that the $10 million noneconomic damage award to the plaintiff in this case — a smoker who had a lung removed due to smoking-caused cancer and then lived the final 20 years of his life with only one lung and recurring health concerns — is likewise not excessive. The problem, of course, is that the noneconomic damage award in Townsend was excessive — indeed, morbidly excessive. But, that award was affirmed by this court in a decision that the Florida Supreme Court declined to review. Accordingly, Townsend cannot be ignored simply because it was, in my view, wrongly decided.

Moreover, unlike the other Engle progeny cases in which outrageously large compensatory damage awards were reversed on appeal, there is no evidence apart from the sheer size of the verdict of a jury run amok in this case. Accordingly, even though the compensatory damage award in this case, like the award in Townsend, is conscience-shocking (at least to me) and grossly overcompensates the plaintiff for the consequences of his poor choice to smoke cigarettes for much of his life, I am compelled by this court’s precedent to join the decision affirming the compensatory damage award in this case.

Likewise, with respect to the punitive damages, although I adhere to the view expressed in my opinion in Townsend that no more than a 1-to-l ratio between compensatory and punitive damages is constitutionally appropriate where the compensatory damages include a substantial — or, as here, an über-substantial — noneconomic damage award, I recognize that the majority in Townsend rejected that view. Accordingly, even though I find the $20 million punitive damage award in this case to be constitutionally excessive in light of and in relation to the compensatory damages, I am compelled by this court’s precedent to join the decision affirming the award.

Having said that, this case proves the point I made in Townsend that “by affirming the $10.8 million award in [that] case, the majority has made it nearly impossible for a court to declare a non-economic damage award up to that amount excessive in any future Engle progeny case.” Although the Florida Supreme Court denied re-view in Townsend, I remain hopeful that that court will at some point squarely address whether there is any limit on the noneconomic damages that can be awarded in Engle progeny cases short of the $10.8 million award approved in Townsend, But, unless and until the supreme court steps in or trial courts begin reviewing mega-noneconomic damage awards in cases such as this with a greater degree of skepticism, it appears that the Town-sewd-fueled Engle verdict lottery and its jackpot-sized damage awards will continue in the trial courts within this court’s jurisdiction (and around the state) simply because noneconomic damages are difficult to measure and the tobacco companies are perceived to have sufficiently-deep pockets to pay these awards.

With these observations and reservations, I dutifully concur in the disposition of this case.

MAKAR, J., Concurring with Opinion.

MAKAR, J.,

concurring with opinion.

I concur in affirmance, but with much reluctance for many of the reasons expressed by Judge Wetherell. If this case had arisen prior to R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307 (Fla. 1st DCA 2012), review denied, 110 So.3d 441 (Fla.2013), and review dismissed, 110 So.3d 442 (Fla.2013) (Townsend I), it would be exceptionally difficult to justify the $10 million award for non-economic damages under the statutorily-required “close scrutiny” spelled out in section 768.74(3), Florida Statutes (“It is the intention of the Legislature that awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excessive.”). As noted in Townsend I, the applicable statutory “criteria include whether the award is ‘supported by the evidence,’ whether the award ‘bears a reasonable relation to the amount of damages proved and the injury suffered,’ and whether the amount of the award is ‘indicative of prejudice, passion, or corruption’ on the part of the jury.” 90 So.3d at 311 (quoting portions of section 768.74(5), Florida Statutes).

The record evidence here, absent Townsend I, would not meet the statutory criteria that the award is “supported by the evidence” and that it bear “a reasonable relationship” to the harm proven. The primary evidence the jury heard about Mr. Smith’s non-economic losses was limited to just four pages of testimony from him and his wife. Mr. Smith was 80 years old at the time his case went to trial and lived some twenty years after his 1992 surgery. He retired at age 60 from his job of thirty years with the State of Florida, but he continued a fulfilling working career as a minister in his church until roughly around 2006 or 2007. Admittedly, his testimony was limited by agreement of the parties due to his diminishing mental capacity, but in that limited testimony, Mr. Smith testified that he was able to do “most of the things” he had done before the surgery. He did not specify what he could no longer do because of his smoking-related injury (versus limitations due to his advancing age generally); when questioned about his abilities following his 1992 lung surgery, his wife testified only generally saying that he “wasn’t able to do the same things” as before (such as walks around the block or bowling) and that the couple was unable to have the “same type of intimate relationship” as before.

Applying “close scrutiny” to this Spartan record raises the proverbial judicial eyebrow, which soon recedes — as Judge Wetherell’s reflections suggest — because Townsend I and like decisions have wearied the shock to the collective judicial conscience of large jury awards; a form of judicial innumeracy and ennui takes hold. No doubt Mr. Smith proved entitlement to significant non-economic damages, but the reasonableness of a $10 million award in this case (which is $500,000 a year or about $1870 daily) is not immediately apparent on this slender record. Because it is within the “outer limits” set by Townsend I, however, we are obliged to affirm.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . 90 So.3d 307 (Fla. 1st DCA 2012).

        . See id. at 318-19 (Wetherell, J., concurring in part and dissenting in part).

      . R.J. Reynolds Tobacco Co. v. Townsend, 110 So.3d 441 (Fla.2013) (table).

      . See Philip Morris USA, Inc. v. Naugle, 103 So.3d 944 (Fla. 4th DCA 2012) (reversing $36.76 million judgment in favor of smoker and remanding for new trial on damages because the compensatory and punitive damage awards, which totaled nearly $300 million, were "infected with passion and prejudice” that could not be cured by the remittitur granted by the trial court); R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331 (Fla. 1st DCA 2012) (reversing $79.2 million judgment in favor of estate of deceased smoker where evidence at trial focused on the unrelated health problems of the smoker’s daughter and grandchild), rev. denied, 107 So.3d 406 (Fla.2012); and cf. Philip Morris USA, Inc. v. Putney, 117 So.3d 798 (Fla. 4th DCA 2013) (reversing denial of motion for remittitur of a $15 million loss of consortium award to three adult children of deceased smoker because none of the children lived with or relied on the smoker for support).

      . The plaintiff smoked for 48 years, starting at age 13 and quitting "cold turkey” in 1992 after being diagnosed with lung cancer. He died in September 2012, several months after entry of the final judgment and a few weeks shy of his 81st birthday.

      . 90 So.3d at 316 n. 11 (Wetherell, J., concurring in part and dissenting in part).

      . Id. at 315-16.

      . Id. at 318 n. 15 (Wetherell, J., concurring in part and dissenting in part).

      . See id. at 312 (stating that "the $10.8 million awarded by the jury is certainly at the outer limit of reasonableness”).

      . See § 768.74(3) and (6), Fla. Stat. (recognizing that the damages awarded by the jury should be disturbed or modified "with caution and discretion," but expressing the legislative intent that damage awards be given "close scrutiny” for excessiveness or inadequacy).

      . See Lorillard Tobacco Co. v. Alexander, 123 So.3d 67, 78-79 (Fla. 3d DCA 2013) (affirming a $10 million noneconomic damage award based on the approval of a similar award in Townsend I); Philip Morris USA Inc. v. Cohen, 102 So.3d 11, 19 (Fla. 4th DCA 2012) (same).

      .On September 25, 2012, R.J. Reynolds notified this Court that Mr. Smith died during the pendency of this appeal.


author: CLARK, Justice,

text:
    STATE ex rel. Gregory FINNEY v. STATE of Louisiana.
    No. 2013-KH-1489.
    Supreme Court of Louisiana.
    Jan. 10, 2013.
   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:
    In re Debra L. CASSIBRY.
    No. 2013-B-1923.
    Supreme Court of Louisiana.
    Nov. 1, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Debra L. Cassibry, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Cassibry, 12-0931 (La.5/2/12), 88 So.3d 442.

FORMAL CHARGES

In January 2011, respondent’s former tenant, Michael Durham, filed a complaint against her with the ODC, alleging that she is addicted to prescription drugs and was arrested for DWI in 2009. Upon investigating the complaint, the ODC learned that respondent was in fact arrested for DWI on July 2, 2009, following a high-speed chase that began in Mississippi and ended in Louisiana. According to the arrest report, as police units from Pearl River, Mississippi and Louisiana pursued respondent with lights and sirens on, she traveled in and out of traffic on 1-59 at speeds of up to 80 m.p.h. and ran other vehicles off the road. She finally stopped at the 1-59 rest area in Louisiana and was ordered to get on the ground. She refused and was then handcuffed; however, noting that her speech was slurred and she could not keep her balance, the police removed the handcuffs and administered field sobriety tests. Based on the results of the tests, respondent 12was arrested by the Louisiana State Police and transported to the Slidell Police Department, where she was booked with careless operation and DWI.

On March 23, 2011, respondent pleaded guilty to DWI in the Slidell City Court and was sentenced to serve six months in jail. The court suspended the sentence pursuant to the provisions of La.Code Crim. P. art. 894 and placed respondent on supervised probation for one year with conditions, including the requirement that she perform 32 hours of community service, pay a fine, and abstain from alcohol.

Respondent has since violated the conditions of her probation by failing to refrain from criminal activity, failing to report truthfully, failing to perform community service, failing to complete a driver’s improvement class, failing to complete a substance abuse class, failing to complete supervision payments, and failing to pay her fine. On September 1, 2011, the court issued a warrant for respondent’s arrest. The warrant remains outstanding at this time.

On December 9, 2011, the ODC wrote to respondent and instructed her to contact the Lawyers Assistance Program (“LAP”) within ten days to arrange for an independent substance abuse evaluation. Respondent did not reply to the ODC, and so the ODC sent a second letter on December 28, 2011. The ODC heard nothing further until March 15, 2012, when LAP Director Buddy Stockwell provided the following update:

I contacted Dr. Barry Pilson, the LAP-approved evaluator in this case, and Dr. Pilson indicated that Ms. Cassibry has in fact come in and participated in the LAP recommended evaluation.
I have not received any type of report, however, because at this particular time Ms. Cassibry has not elected to execute a release with Dr. Pilson for either LAP or the Office of Disciplinary Counsel. As such, until such time that Ms. Cassibry agrees to reveal the results of the Revaluation, I can make no further recommendations in this case. [Emphasis added.]

Based upon this information, the ODC sent respondent a letter by certified mail dated March 21, 2012, instructing her to contact Dr. Pilson and/or Mr. Stockwell immediately and to take whatever steps were necessary to authorize Dr. Pilson to share his evaluation report with the ODC and LAP. Respondent was also advised that if she failed to comply, the ODC would file a petition for interim suspension. The letter was subsequently returned to the ODC undelivered and marked “unclaimed; return to sender.”

Following the court’s May 2, 2012 order of interim suspension, respondent contacted the ODC for clarification. She was again orally instructed to authorize Dr. Pilson to share his evaluation report with the ODC and LAP. To date, respondent has failed to produce a copy of her substance abuse evaluation, has not entered into a recovery agreement with LAP, and is not being monitored by LAP.

DISCIPLINARY PROCEEDINGS

In June 2012, the ODC filed two counts of formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer).

Respondent was served with the formal charges via certified mail but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary ¿¿evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee accepted the deemed admitted facts as true and correct. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee further determined respondent knowingly violated a duty owed to the public by operating a motor vehicle while under the influence, which created the potential for serious harm. Respondent knowingly, if not intentionally, violated a duty to the legal profession by delaying the ODC’s investigation and withholding documentation and information pertinent to this matter. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction is suspension.

The committee found the following aggravating factors are present: refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law (admitted 1985). The committee found the following mitigating factors present: absence of a prior disciplinary record and imposition of other penalties or sanctions.

Based on this court’s prior jurisprudence involving similar misconduct, the ABA Standards, and the facts of this case, the committee recommended that respondent be suspended from the practice of law for one year and one day. The committee also recommended that prior to seeking reinstatement, respondent should be required to authorize the release of her substance abuse evaluation to LAP and the ODC and that she be required to satisfy all obligations owed to the |scourt. Finally, the committee recommended that respondent be assessed with all costs and expenses of these proceedings.

Respondent did not file an objection to the hearing committee’s report and recommendation. However, she did file a “Motion for Extension of Time to Answer with Extenuating and Exigent Circumstances or Dismiss this Action” with the disciplinary board, which was denied.

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board determined that the hearing committee’s factual findings are supported by the factual allegations in the formal charges, which were deemed admitted, and/or by the evidence submitted in support of the allegations. The board determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined respondent knowingly, if not intentionally, violated duties owed to the public and the legal profession. Her act of driving while under the influence caused significant potential harm to the public. Additionally, her failure to cooperate with the ODC in its investigation caused that agency to expend additional resources. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board found the following aggravating factors are present: substantial experience in the practice of law, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and illegal conduct, including that involving the use of controlled substances. The board found the following mitigating factors present: | (¡absence of a prior disciplinary record and imposition of other penalties or sanctions (respondent’s criminal conviction and sentence).

In recommending a sanction, the board relied upon In re: Baer, 09-1795 (La.11/20/09), 21 So.3d 941. In Baer, an attorney drove while intoxicated on two occasions, for which she was suspended from the practice of law for one year and one day. In discussing an appropriate sanction, the court applied the following analysis:

We have imposed sanctions ranging from actual periods of suspension to fully deferred suspensions in prior cases involving attorneys who drive while under the influence of alcohol. However, as a general rule, we tend to impose an actual suspension in those instances in which multiple DWI offenses are at issue, as well as in cases in which the DWI stems from a substance abuse problem that appears to remain unresolved. Both of these concerns are implicated in the instant case. Therefore, we find it is appropriate to impose a one year and one day suspension, with no portion of the suspension deferred. [Internal footnote omitted.]

The board noted that respondent has not committed multiple DWI offenses, nor is there evidence that she suffers from an unresolved substance abuse issue. Nonetheless, the board determined that the nature of respondent’s crime, when combined with her failure to cooperate with the ODC and LAP, raises serious questions as to her fitness to practice of law. The board concluded that like the attorney in Baer, respondent should be required to complete the reinstatement process and prove her fitness by clear and convincing evidence before returning to the practice of law.

Accordingly, the board recommended that respondent be suspended from the practice of law for one year and one day. The board also recommended that respondent be assessed with the costs and expenses of this proceeding.

| 7Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent pleaded guilty to DWI and failed to cooperate with the ODC in its investigation. 18Based on these facts, respondent has violated the Rules of Professional Conduct as charged by the ODC.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).

The record supports a finding that respondent knowingly, if not intentionally, violated duties owed to the public and the legal profession. Her conduct caused potential serious harm to the public and actual harm to the legal profession. The baseline sanction for respondent’s misconduct is suspension. The record supports the aggravating and mitigating factors found by the disciplinary board.

In Baer, the court indicated that actual suspensions are imposed in cases in which the DWI stems from an unresolved substance abuse problem. In the instant matter, respondent submitted to a substance evaluation following her DWI conviction. However, she has not released the results of that evaluation to LAP or the ODC, despite repeated requests. As such, we are not convinced that she has an unresolved substance abuse problem. Nevertheless, by failing to release the evaluation report, respondent has prevented the discovery of evidence that could reveal the existence of such a problem.

Under the circumstances, and particularly in light of the additional misconduct, we agree with the hearing committee and the disciplinary board that it is appropriate to impose a one year and one day suspension upon respondent, with no portion of the suspension deferred. Should respondent wish to resume the practice of law in the future, she will be required to make a formal application for ^reinstatement under Supreme Court Rule XIX, § 24 and demonstrate to our satisfaction that she meets all of the reinstatement criteria set forth therein.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Debra L. Cassi-bry, Louisiana Bar Roll number 17029, be and she hereby is suspended from the practice of law for one year and one day, retroactive to May 2, 2012, the date of her interim suspension. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . A Breathalyzer test administered to respondent revealed that she had no alcohol in her system. Suspecting that she was under the influence of a controlled substance, the police officers asked respondent to submit a urine sample for analysis. Respondent refused to do so.

      . Respondent allegedly violated the conditions of her probation and a warrant for her arrest has been outstanding since September 2011.

      . The board declined to adopt the aggravating factor of refusal to acknowledge the wrongful nature of the conduct. According to the board, respondent’s failure to participate in this proceeding does not necessarily indicate that she has refused to accept her actions, particularly since she pleaded guilty to the criminal charges, which would indicate acceptance of her actions.

      . On October 23, 2013, well after the expiration of the deadline to object to the board’s recommendation, respondent sent a letter to this court addressing the underlying facts of this matter and challenging the validity of her conviction. Because this filing is untimely, we will not consider it. Moreover, even if we were inclined to consider the letter, we would give it no weight, as respondent is precluded from challenging the fact of her criminal conviction by the clear language of Supreme Court Rule XIX, § 19(E). See In re: Minor, 12-1006 (La. 10/16/12), 100 So.3d 319 (when disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether the respondent’s crimes warrant discipline, and if so, the extent thereof).


text:
    In re Walter W. GERHARDT.
    No. 2013-OB-2310.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

|, This proceeding arises out of an application for reinstatement filed by petitioner, Walter W. Gerhardt, an attorney currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Gerhardt, 11-0687 (La.4/29/11), 64 So.3d 203 (“Gerhardt I”), we accepted a joint petition for consent discipline filed by petitioner and the Office of Disciplinary Counsel (“ODC”), in which the parties proposed that petitioner be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of supervised probation with conditions, including completion of the Louisiana State Bar Association’s Ethics School. The misconduct forming the basis of Gerhardt I consisted of petitioner’s neglect of two legal matters and his failure to communicate with two clients.

In In re: Gerhardt, 12-0893 (La.5/25/12), 89 So.3d 1169 (“Gerhardt II”), we revoked petitioner’s probation and made the previously deferred one year and one day suspension executory after petitioner neglected an additional legal matter, continued to neglect one of the legal matters subject of Gerhardt I, and failed to complete Ethics School as required by the conditions of his probation.

^Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended that petitioner be reinstated to the practice of law, subject to at least one year of supervised probation. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

After considering the record in its entirety, we will adopt the committee’s recommendation and reinstate petitioner to the practice of law. As found by the committee, the record provides clear and convincing evidence of petitioner’s compliance with the reinstatement criteria. Nevertheless, we find further precautions are warranted to insure that the public will be protected upon petitioner’s return to practice. See Supreme Court Rule XIX, § 24(J).

Accordingly, we will order that petitioner be conditionally reinstated, subject to a two-year period of supervised probation. The probationary period shall commence from the date petitioner, the ODC, and the probation monitor execute a formal probation plan. Should petitioner fail to comply with the conditions of probation, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Walter W. Gerhardt, Louisiana Bar Roll Rnumber 20827, be immediately reinstated to the practice of law in Louisiana, subject to the conditions set forth herein. All costs of these proceedings are assessed against petitioner.

      . Petitioner ultimately did attend Ethics School, but he did not do so until one month after the court’s ruling in Gerhardt II.


text:
    Patrick O’HERN v. DEPARTMENT OF POLICE.
    No. 2013-C-1416.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
    Rehearing Denied Jan. 17, 2014.
   PER CURIAM.

| iWrit granted. The ruling of the court of appeal is reversed and the decision of the Civil Service Commission is reinstated.

FACTS AND PROCEDURAL HISTORY

Officer Patrick O’Hern was employed by the New Orleans Police Department (hereinafter “NOPD”) as a classified Police Officer II. Following an investigation, the NOPD terminated Mr. O’Hern’s employment. Mr. O’Hern asserts that his termination was unlawful because of failure to timely complete the investigation.

The investigation in question stems from the following incident. While on duty on December 12, 2009, Mr. O’Hern left his patrol assignment and went to his private vehicle. He drove to the top floor of a downtown parking garage, consumed a bottle of whiskey and ingested nearly a dozen Clonazepam (anti-anxiety) tablets. He then tasered himself and discharged his firearm over twenty times, shooting through the windshield and roof of the vehicle. Responding officers found Mr. O’Hern incapacitated and took him to a medical facility where he informed | {.personnel that he attempted to commit suicide. His blood alcohol content was 0.105%.

On the same date as the incident, Sergeant Lawrence Jones (hereinafter “Sgt. Jones”) of the NOPD Public Integrity Bureau began an investigation of Mr. O’Hern, examining possible violations of rules pertaining to his professional misconduct, performance of duty and criminal activity. Sgt. Jones issued a Form DI-1: “Initiation of a Formal Disciplinary Investigation,” which placed Mr. O’Hern on notice that his actions gave rise to a possible violation of “Rule 2: Moral Conduct; Paragraph 1: Adherence to Law,” relative to the illegal use of weapons or dangerous instrumental-ities. Pursuant to this notice, NOPD began a criminal investigation of Mr. O’Hern’s actions. On December 16, 2009, Sgt. Jones requested that Mr. O’Hern submit a criminal statement, which Mr. O’Hern refused. Mr. O’Hern was later arrested and pled nolo contedere to a violation of La. R.S. 14:94, which provides:

Illegal use of weapons or dangerous instrumentalities 'is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance where it is foreseeable that it may result in death or great bodily harm to a human being.

On March 5, 2010, the NOPD began its administrative investigation and sent notice to Mr. O’Hern compelling an administrative statement, which took place on March 11, 2010. On April 27, 2010, Sgt. Jones sent Mr. O’Hern written notice pursuant to La. R.S. 40:2531(B)(7), outlining the sustained charges of misconduct and notifying him that the investigation was complete. Mr. O’Hern’s employment was subsequently terminated.

Mr. O’Hern appealed this decision, asserting unlawful termination for lack of cause and a violation of La. R.S. 40:2531(B)(7), on the basis that the investigation was not completed within sixty days. A hearing was held on August 4, 2011, before the Civil Service Commission (hereinafter “CSC”). The CSC | «denied Mr. O’Hern’s appeal, finding the NOPD established cause for the discipline imposed upon Mr. O’Hern and that the NOPD did not violate La. R.S. 40:2531 (B)(7).

Mr. O’Hern appealed the decision of the CSC, asserting the CSC erred in affirming the NOPD’s disciplinary action. The Fourth Circuit originally affirmed the decision of the CSC, finding no merit in Mr. O’Hern’s four assignments of error. On rehearing, however, the court of appeal reversed its decision and that of the CSC, finding the formal investigation exceeded the sixty-day time limit and this finding pretermitted discussion of the remaining issues.

The NOPD filed the instant writ application asserting the sixty-day time limit does not apply to the facts of this case because the investigation at issue involved allegations of criminal activity. The NOPD asserts that investigations of alleged criminal activity are not limited by the time delays set forth in La. R.S. 40:2531(B)(7), which time delays only apply to investigations that do not involve criminal activity.

DISCUSSION

On the day of the incident, the investigating officer initiated a formal DI-1: “Initiation of a Formal Disciplinary Investigation,” because Mr. O’Hern’s actions gave rise to a possible violation of “Rule 2: Moral Conduct; Paragraph 1: Adherence to Law,” pertaining to the illegal use of weapons or dangerous instrumentalities. The plaintiff contends this marked the beginning of an administrative investigation, which according to La. R.S. 40:2531(B)(7), must be completed within sixty days, unless an extension is granted.

The language found in La. R.S. 40:2531 provides that an investigation shall be initiated within fourteen days of a formal complaint and, unless involving allegations of criminal activity, must be completed within sixty days. Specifically, the statute provides: “[e]xcept as otherwise provided in this Paragraph, each | investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days ...” However, the statute further states, “ ... nothing in this Paragraph shall limit any investigation of alleged criminal activity.”

Mr. O’Hern asserts the manner in which the administrative investigation was conducted constituted a violation of La. R.S. 40:2531 because he was an officer “under investigation facing possible disciplinary action, demotion, or dismissal.” La. R.S. 40:2531(C). Thus, Mr. O’Hern contends the NOPD’s argument that the initial investigation was a criminal investigation tolling the sixty-day rule is inapplicable in this case because a criminal investigation does not result in disciplinary actions, but an administrative investigation does. On the other hand, the NOPD contends the initial investigation, which began on the date of the incident, was a criminal investigation and the administrative investigation did not begin until March 5, 2010, when the criminal investigation was converted into an administration investigation.

The plain language of the statute suggests a criminal investigation is distinct from a civil administrative investigation. At the CSC hearing, Sgt. Jones testified that because of the incriminating circumstances of the incident, a criminal investigation was required prior to an administrative investigation to determine whether Officer O’Hern was to be prosecuted by the District Attorney. Based on the criminal investigation conducted by Sgt. Jones, Mr. O’Hern was arrested and, upon release, was placed on desk duty by the NOPD so that the administrative investigation could begin. Therefore, it is clear the administrative investigation did not begin until March 5, 2010, when the NOPD informed Mr. O’Hern that his statement was required to initiate the administrative investigation. As stated above, La. R.S. 40:2531(B)(7) provides that nothing must interfere with a criminal investigation.

1 ¿Furthermore, jurisprudence establishes that a criminal investigation tolls the time limit for the administrative investigation. In Franklin v. Department of Police, 2010-1581 (La.App. 4 Cir. 4/6/11), 66 So.3d 87, (unpub’d) writ denied, 69 So.3d 1157, (La.9/23/11), the Fourth Circuit affirmed a finding of the CSC, which upheld the termination of an officer. In that case, the court found an administration investigation did not begin until the completion of a criminal investigation, and ended when the investigating officer submitted a request for a pre-disciplinary hearing, which was -within the required sixty-day period. Id.

Importantly, the court in Franklin referred to Wyatt v. Harahan Municipal Fire and Police Civil Service Board, 06-81, (La.App. 5 Cir. 7/25/06); 935 So.2d 849, wherein an officer was terminated from the Harahan Police Department .due to disciplinary actions for his failure to report an accident timely, misuse of sick time, and submission of a false police report. The officer appealed his termination alleging, as in this case, that the disciplinary investigation took more than sixty days. The Fifth Circuit sustained the termination, finding no violation of the statute because the preliminary investigation was an inquiry into “criminal activity” not governed by the sixty day rule, and the subsequent disciplinary investigation was completed within sixty days. Id.

Upon rehearing, the court of appeal in this case found Wyatt did not apply because of amendments made to the statute at issue in 2007, subsequent to the Fifth Circuit decision in Wyatt. We find, however, the amendments did not affect the language of the statute pertaining to the exception for investigations into criminal activity. In 2007, the legislature added to La. R.S. 40:2531 the requirement that an investigation commence within fourteen days of the conduct being investigated. The legislature also added Subsection (C), which provides that failure to adhere to the standards set forth in Subsections (A) and (B), with respect to an officer “under investigation facing possible disciplinary action, demotion, or | ^dismissal,” would render the disciplinary action taken absolutely null. We find the standards set forth in the statute were not violated and therefore, the disciplinary action taken is not rendered absolutely null. Moreover, we note the language found in the last sentence of Subsection (B) pertaining to the exception for criminal investigations was added in 2001, prior to the court’s decision in Wyatt. Further, we note Franklin was decided after the amendments and is therefore applicable.

Additionally, the court of appeal relied on this court’s recent decision to deny the NOPD’s writ application in Robinson v. Department of Police, 2012-1039 (La-App. 4 Cir. 1/16/13), 106 So.3d 1272, writ denied, 2013-0528 (La.4/12/13), 110 So.3d 1081. In Robinson, the CSC found an administrative investigation may be converted into a criminal investigation, thus tolling the sixty-day time period pending completion of the criminal investigation. The Fourth Circuit reversed and this court denied the writ application. We note, however, it is well established that a denial of writ has no precedential value. Giorgio v. Alliance Operating Corp., 05-002, n. 22 (La.1/19/06), 921 So.2d 58 quoting Long v. State of Louisiana, Through the Department of Transportation and Development, 04-0485, p. 4, n. 7 (La.6/29/05), 916 So.2d 87. Therefore, the Fourth Circuit erred in relying on this court’s writ denial in Robinson.

We also believe the court of appeal erred in relying on Cornelius v. Department of Police, 2009-1459 (La-App. 4 Cir. 6/9/10) 41 So.3d 617. In that case, the court found that instead of a formal investigation, an informal DI-3 investigation was opened immediately after a complaint was made and only when the informal investigation was completed and closed was the formal investigation initiated, which Officer Cornelius argued violated the sixty-day rule. We note, however, the investigation at issue in this case was a formal investigation, evidenced- by the Form DI-1 completed on the date of the incident.

17Further, we have previously recognized the NOPD is responsible for taking disciplinary action against an employee who has impaired the efficiency of public service. See Bannister v. Dept. of Streets, 95-0404, p. 7 (La.1/6/96), 666 So.2d 641, 646; Newman v. Department of Fire, 425 So.2d 753 (La.1983). In this case, Mr. O’Hern acted under the influence of alcohol and prescription medication, which interfered with performance of his job duties and impaired the efficiency of public service. Likewise, we note the Civil Service Commission has the exclusive power and authority to hear and decide all removal and disciplinary cases. The Commission’s decision is subject to review on any question of law or fact upon appeal to the court of appeal. La. Const. art X, § 12(B). Review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly wrong standard. Moore v. Ware, 2001-3341 (La.2/25/03), 839 So.2d 940, 945-946; Russell v. Mosquito Control Bd., 2006-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-640. Further, mixed questions of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. Russell, 941 So.2d at 639-640.

The CSC specifically found the preliminary investigation was a criminal investigation. The facts in this particular case support the findings of the CSC and we cannot say the CSC was manifestly erroneous or clearly wrong. Sgt. Jones initially requested a criminal statement and the defendant was ultimately charged with a criminal violation. Because the statute specifically provides that nothing shall limit an investigation involving alleged criminal activity, the sixty-day period within which to complete an investigation did not begin until the start of the administrative investigation, and was completed within sixty days.

Under the circumstances of this case, and for the reasons discussed above, we find the court of appeal erred in reversing the decision of the Civil Service Commission. Accordingly, the court of appeal’s decision on rehearing is reversed Rand the court’s finding on original hearing, wherein the CSC decision was affirmed, is hereby reinstated.

DECREE

For the foregoing reasons, we reverse the judgment of the Court of Appeal and reinstate the decision of the Civil Service Commission.

REVERSED AND RENDERED.

VICTORY, J., concurs in the result.


text:
    STATE of Louisiana v. Sidney WILLIAMS, III.
    No. 2013-K-1226.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   PER CURIAM.

| granted in part. Defendant challenged the sufficiency of the evidence generally on appeal although he did not specifically argue that possession of Butalbital when compounded with at least 325 mg of Acetaminophen per dosage unit is not criminal. See R.S. 40:964 Schedule 111(B)(3). Regardless, a lab report included in the record as State’s Exhibit 10 indicates that the Butalbital tablet in this case, in fact, was compounded with 325 mg Acetaminophen. Accordingly, defendant’s conviction and five-year sentence for possession of Butalbital must be set aside. See State v. Raymo, 419 So.2d 858, 861 (La.1982) (finding that “[b]ecause the state’s case was devoid of evidence of an essential element of the charged offense, ... defendant’s conviction and sentence must be set aside, regardless of how the error is brought to the attention of the reviewing court.” (citations omitted)). Defendant’s remaining claims lack merit and the application is otherwise denied.


text:
    In re Heather Munoz MURPHY.
    No. 2013-B-2947.
    Supreme Court of Louisiana.
    Dec. 27, 2013.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Heather Munoz Murphy, Louisiana Bar Roll number 32068, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

FOR THE COURT:

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Lonnie R. SMITH.
    No. 2013-OB-3017.
    Supreme Court of Louisiana.
    Jan. 3, 2014.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Lonnie R. Smith, Louisiana Bar Roll number 12204, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

FOR THE COURT:

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


text:
    STATE ex rel. Eric BANKS v. STATE of Louisiana.
    No. 2013-KH-1503.
    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.


text:
    STATE ex rel. Lionel LEWIS v. STATE of Louisiana.
    No. 2013-KH-1506.
    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.


text:
    STATE of Louisiana in the Interest of D.J.
    No. 2013-CK-1111.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   PER CURIAM.

| ,Writ granted. La.Ch.C. art. 877(A) sets forth the time limitations for delinquency adjudication hearings such as the present one and provides: “If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.” Additionally, La.Ch.C. art. 877(D) provides: “For good cause, the court may extend such period.” Here, through administrative error arising from the movement of the case from one section of the juvenile court to another, the adjudication hearing was set five days after the expiration of the 30-day time limit without objection by the child. Before the expiration of the time limit, the state recognized the error and requested an extension to maintain the hearing date apparently agreed upon by all parties. The juvenile court found that good cause existed and granted the state’s request. The court accordingly denied the child’s motion to dismiss on the date set for the hearing, and thereafter adjudicated the juvenile delinquent. The court of appeal, relying on State in the Interest of W.P., 11-1442 (La.App. 4 Cir. 3/7/12), 82 So.3d 571 (unpub’d), found that the juvenile court abused its discretion in denying the motion to dismiss 12because the child’s acquiescence in the setting of an untimely hearing date did not waive his right to strict compliance with La.Ch.C. art. 877(A). The court of appeal therefore reversed the juvenile court’s ruling, effectively vacating the lower court’s adjudication of the juvenile as delinquent and its disposition of the case. State in the Interest of D.J., 12-1416, pp. 5-6 (La.App. 4 Cir. 4/10/13), 113 So.3d 503, 507. The court of appeal erred in this determination. See State in the Interest of W.P., 12-0794 (La.9/28/12), 98 So.3d 802 (remanding for reconsideration). Under the facts of the matter presented, the juvenile court did not abuse its discretion in denying the motion to dismiss. See State in the Interest of R.D.C., 93-1865, p. 3 n. 4 (La.2/28/94), 632 So.2d 745, 747 (“The hearing, originally set for June 30, 1992, was continued by the court until August 4, 1992, a date outside of the ninety day period [provided by La.Ch.C. art. 877(B) for adjudication hearings when the child is not continued in custody]. However, since the court, the child and the state agreed to this August 4, 1992 date, we will treat it as an extension for good cause by the court.”).

The decision of the court of appeal is therefore reversed, and the juvenile court’s adjudication of delinquency and disposition of the case are hereby reinstated.

HUGHES, J., concurs in the result.


author: PER CURIAM. WEIMER, J.,

text:
    In re Felix Anthony DeJEAN, IV.
    No. 2013-B-2311.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   PER CURIAM.

| Respondent, Felix Anthony DeJean, IV, seeks review of a ruling of the disciplinary board imposing a public reprimand. Having reviewed the record and the briefs of the parties, we find the disciplinary board reached the correct result in concluding that respondent’s conduct was prejudicial to the administration of justice. The appropriate sanction for respondent’s misconduct is a public reprimand.

Accordingly, it is the judgment of this court that the ruling of the disciplinary board is affirmed.

WEIMER, J.,

dissenting.

| j While not condoning the actions of the respondent, based on credibility findings of the hearing committee, which are not manifestly erroneous, and the reasons of the dissenting members of the disciplinary board, I dissent and would dismiss the charges.