author: CASANUEVA, Judge.

text:
    CITY OF AVON PARK, Appellant/Cross-Appellee, v. STATE of Florida, Appellee, and Michael Rowan, Appellee/Cross-Appellant.
    No. 2D12-3978.
    District Court of Appeal of Florida, Second District.
    July 17, 2013.

      Gerald T. Buhr of Gerald T. Buhr, P.A., Odessa; and Brian Koji and Shaina Thorpe of Allen Norton & Blue, P.A., Tampa, for Appellant/Cross-Appellee.
    Jerry Hill, State Attorney, and Victoria J. Avalon, Assistant State Attorney, Bar-tow, for Appellee State of Florida.
    Robert H. Grizzard, II, Lakeland, for Appellee/Cross-Appellant Michael Rowan.
   CASANUEVA, Judge.

On October 19, 2011, the City of Avon Park terminated Michael Rowan’s employment as Chief of Police, and Mr. Rowan contests his termination in a pending administrative proceeding. The parties contend that an issue in that proceeding will be Mr. Rowan’s actions as Chief of Police in investigating certain members of the Avon Park City Council. An investigator with the State Attorney’s Office for the Tenth Judicial Circuit had conducted an investigation into the allegations raised by Mr. Rowan against some members of the City Council and allegations against Mr. Rowan that he improperly deleted information from his work computer. The investigator, Michael Ivancevich, issued a written report after concluding the investigation, and the report was eventually released as a public record pursuant to chapter 119, Florida Statutes (2011).

The City sought to have Mr. Ivancevich testify about his investigation at Mr. Rowan’s administrative hearing, and it directed the administrative hearing officer to issue a subpoena to Mr. Ivancevich. The State then filed an amended petition asking the circuit court to quash the subpoena and enter a protective order preventing another subpoena from being issued to Mr. Ivancevich. The circuit court granted in part and denied in part the State’s amended petition, quashing the subpoena and limiting the scope of Mr. Ivancevich’s testimony. The court also held that any portion of the written investigative report containing the mental impressions of Mr. Ivancevich was not admissible in the administrative hearing. The City appealed this ruling, arguing that the report is a public record and is admissible in evidence, that Mr. Ivancevich’s testimony should not have been limited, and that the circuit court improperly quashed the subpoena. Mr. Rowan filed a cross-appeal, arguing that Mr. Ivancevich should be precluded from testifying at the administrative hearing. We affirm the circuit court’s thoughtful and well-analyzed order in all respects save one. We reverse only that part of the circuit court ruling excluding from evidence the portion of Mr. Ivancevich’s report containing his mental impressions.

The City argues, and the State and Mr. Rowan agree, that Mr. Ivancevich’s report is a public record. Section 119.071(l)(d)(l), Florida Statutes (2011), provides as follows:

A public record that was prepared by an agency attorney ... or prepared at the attorney’s express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings.

(Emphasis added.)

Criminal investigative information is considered active if it is “related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future. In addition, criminal intelligence and criminal investigative information shall be considered ‘active’ while such information is directly related to pending prosecutions or appeals.” § 119.011 (3)(d)(2); see also Barfield v. City of Fort Lauderdale Police Dep’t, 639 So.2d 1012, 1018 (Fla. 4th DCA 1994) (“[Ojnce the investigations are concluded, if no charges are filed, the records would cease to be ‘active’ and thus subject to disclosure.”).

Mr. Ivancevich’s investigation and any related criminal proceedings have concluded, since no charges were filed against any of the parties mentioned in the report. Therefore, the exemption in section 119.071(l)(d)(l) no longer applies and the report was properly made a public record pursuant to section 119.07.

At this stage of the proceeding, the circuit court erred in excluding from evidence that part of the written investigative report containing the mental impressions of Mr. Ivancevich. We reverse only that part of the circuit court ruling excluding that portion of Mr. Ivancevich’s report from evidence. Our determination today should not be construed as permitting any party to go behind the written report to obtain evidence that would otherwise be excluded by the circuit court’s order. Further, we do not comment on the admissibility of the report at the administrative hearing, as we cannot anticipate what objections, if any, will be made during that hearing.

Affirmed in part; reversed in part; remanded.

CRENSHAW and SLEET, JJ., Concur.

      . At the hearing on the State’s amended petition, the circuit court first declined to rule on the admissibility of the investigator’s report, stating, "I'm not ruling on that. That’s the hearing officer's duty.” However, after the attorneys continued to seek a ruling on whether the report was admissible, the circuit court then stated that it was granting the State’s amended petition for protective order, "which says any mental impressions. And if that's in the report, if that’s in his testimony, wherever it is, I'm granting the motion for protective order on that.”


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Clifford L. PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5329.
    District Court of Appeal of Florida, Second District.
    July 17, 2013.
   NORTHCUTT, Judge.

Clifford Lee Perkins filed a motion under Florida Rule of Criminal Procedure 3.800(a), contending that his written sentences do not conform to the trial court’s oral pronouncement. The postconviction court denied Perkins’ motion on the ground that the sentences were corrected by a prior order of the court. But the written judgments and sentences, as allegedly corrected, reflect that the postconviction court is mistaken; therefore, we reverse and remand for additional correction of Perkins’ sentences.

In 2009, Perkins pleaded guilty to eight offenses. Case numbers 06-20699 and 06-20959 each involved one count of sale or delivery of cocaine within 1000 feet of a school, a first-degree felony, and one count of possession of cocaine, a third-degree felony. Case number 07-21704 involved two counts of sale or delivery within 1000 feet of a school and two counts of possession of cocaine. In resolving these cases, the trial court pronounced that Perkins was to serve a total of nine years’ imprisonment and orally structured the sentences as follows: Perkins was to serve concurrent terms of 108 months’ imprisonment on each of the first-degree felonies concurrently with concurrent terms of 60 months’ imprisonment on each of the third-degree felonies. Because each of the first-degree felonies required the imposition of a three-year minimum mandatory term, § 893.13(l)(c)(l), Fla. Stat. (2006), the trial court ran three of the minimum mandatory terms consecutively and the fourth concurrently, for a total minimum mandatory of 108 months. The intent of this sentence structure was to ensure that Perkins served a minimum mandatory term of nine years without any additional consecutive terms.

Unfortunately, the 2009 written judgments and sentences did not accurately reflect the trial court’s oral pronouncement. Instead, in each of the 2006 cases, the sentencing documents indicated that the 60-month terms for the third-degree felonies were to be served consecutively to, rather than concurrently with, the 108-month terms for the first-degree felonies. In the 2007 case, the sentencing documents indicated that the first-degree felonies were to run consecutively to each other but concurrently with the concurrent terms for the third-degree felonies. This error prompted Perkins to file a motion to correct illegal sentence. The postconviction court granted the motion in a January 2012 order directing that page seven of each of the 2006 sentencing documents be corrected to reflect that the counts in those cases were to run concurrently. However, while page six of those documents now reflects that the counts are to run concurrently, page seven was not corrected and continues to reflect that the counts run consecutively. In addition, the documents for the 2007 case do not reflect that the sentences for the four counts in that case are to run concurrently.

Perkins consequently filed the current rule 3.800(a) motion, again seeking conformance of his written sentences with the oral pronouncement. The postconviction court denied this new motion on the ground that it had previously ordered the sentences corrected. But because the corrections were not complete, Perkins is still serving an illegal sentence.

Accordingly, we reverse the postconviction court’s order and remand with instructions that the court direct the clerk to comply with the order of January 6, 2012, by correcting page seven of the judgments and sentences in case numbers 06-20959 and 06-20699 to reflect that the sentences on count two are to run concurrently with the sentences on count one. In addition, the postconviction court shall direct the clerk to correct pages four, eight, and eleven of the judgment and sentence in case number 07-21704 to reflect that the sentences on all counts are to run Concurrently-

Reversed and remanded with directions.

ALTENBERND and KELLY, JJ., Concur.

      . All of the documents correctly indicate that the sentences in the three cases are to run concurrently with each other.

      . To facilitate this court’s review, we directed the clerk of the circuit court to supplement the summary record with the judgments and sentences entered on January 6, 2012, pursuant to the postconviction court's order granting Perkins’ first rule 3.800(a) motion raising this issue.


author: DAVIS, Chief Judge.

text:
    Bernard Daniel DUFFY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5143.
    District Court of Appeal of Florida, Second District.
    July 17, 2013.
    Bernard Daniel Duffy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Chief Judge.

Bernard Daniel Duffy appeals the post-conviction court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he sought additional jail credit on the sentence he received in circuit court case number 09-2896. We reverse.

In November 2009, the trial court placed Duffy on two years’ community control in case number 07-3184 followed by fifteen years’ probation in case number 08-6562 to be served concurrently with the ten-year probationary term he received in case number 09-2896. On April 11, 2011, Duffy was arrested for violating probation in case numbers 07-3184 and 08-6562. However, an arrest warrant for case number 09-2896 was not issued until December 2011, and Duffy was apparently not formally arrested until January 4, 2012. As a result, when the trial court revoked Duffy’s probation and sentenced him in the three cases to concurrent terms of two years’ imprisonment on January 5, 2012, it gave him jail credit in case numbers 07-3184 and 08-6562 from April 11, 2011, but it gave him only three days’ jail credit in case number 09-2896. In his rule 3.800(a) motion, Duffy argued that because he violated probation in all three cases, he also was entitled to jail credit in case number 09-2896 from April 11, 2011, to January 5, 2012.

We ordered the State to respond to Duffy’s argument in light of Milligan v. State, 88 So.3d 1031, 1032 (Fla. 2d DCA 2012), in which this court concluded that although Milligan was not arrested for violating probation in one of the two cases in which he was serving concurrent terms of probation, because the record demonstrated that he was in custody in both cases, he was entitled to jail credit in both cases. The State concedes that under Milligan, Duffy is entitled to jail credit in case number 09-2896 from April 11, 2011, through January 5, 2012. Accordingly, we reverse and remand for further proceedings consistent with this opinion. Because it appears that Duffy’s release would be imminent if he were given the ádditional jail credit, the postconviction court should expedite the proceedings on remand and enter an order within fifteen days from the date of the issuance of the mandate in this proceeding.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

      . See Stafford v. State, 455 So.2d 385, 386 (Fla.1984) ("[T]he power to revoke probation is an inherent power of the trial court, which may be exercised at [any time] upon the court determining that the probationer has violated the law. Under the exercise of such inherent power, the court can revoke an order of probation, the term of which has not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation” (citations omitted) (quoting Martin v. State, 243 So.2d 189, 190-91 (Fla. 4th DCA 1971))).

      . We note that Milligan is the latest in a line of cases from this court reversing and remanding for the award of jail credit under similar circumstances. See Gonzalez v. State, 17 So.3d 1277, 1278 (Fla. 2d DCA 2009) (holding that although criminal report affidavit stated that Gonzalez was arrested in only one case, because an affidavit of violation of community control was filed in all four cases and community control was revoked in all four cases, Gonzalez was entitled to jail credit in all four cases); Tinker v. State, 870 So.2d 79, 80 (Fla. 2d DCA 2003) (holding that because affidavit of violation of probation was issued in both cases for which Tinker was serving probation, absence of one case number from arrest warrant was clerical error and Tinker was entitled to jail credit in both cases); see also Seay v. State, 928 So.2d 479, 480 (Fla. 2d DCA 2006) (holding that despite scrivener’s error Seay was entitled to jail credit in both cases in which he was placed on probation).


author: CLARK, J.

text:
    Donald Dean CARTER, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D12-4308.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Donald Dean Carter, pro se, Appellant.
    Jessica Harmsen, Assistant General Counsel, Florida Department of Financial Services, Tallahassee, for Appellee.
   CLARK, J.

This is an appeal from the final order of the Department of Financial Services (“Department”) denying Appellant’s application for reinstatement of his resident all-lines adjuster license. See §§ 626.8548, 626.855, 626.866, Fla. Stat. Because Appellant has failed to establish any of the statutory grounds upon which this court might set aside the final agency action, the final order is affirmed.

Upon the Department’s disciplinary action against Appellant in a separate proceeding, Appellant’s license was suspended by the Department on October 25, 2011. The basis for the suspension was Appellant’s plea of nolo contendere to a felony which the Department determined involved “moral turpitude.” See § 626.611(14), Fla. Stat.

The license was not automatically reinstated upon the expiration of the suspension period. Rather, as required by section 626.641(1), Florida Statutes, Appellant filed his application for reinstatement of his license on January 26, 2012. The Department notified Appellant that his application was denied due to his disqualification for reinstatement under sections 626.207 and 626.621, Florida Statutes (2011). Although he did not contest the material facts, Appellant timely requested a hearing, a hearing was held, and the hearing officer submitted a recommended order to the Department head. The agency’s final order adopted the hearing officer’s recommended order and denied Appellant’s application for reinstatement of his adjuster’s license.

Final agency action must be affirmed by this court unless one of the' statutory grounds for setting aside such action is established by the Appellant. § 120.68(8), Fla. Stat. Because a hearing took place in this case, the facts were not in dispute in the administrative proceedings, and there was no material procedural error or failure to follow procedure, the only statutory grounds upon which the agency final action might be set aside are:

(d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or
(e) The agency’s exercise of discretion was:
1. Outside the range of discretion delegated to the agency by law;
2. Inconsistent with agency rule;
3. Inconsistent with. officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency; or
4. Otherwise in violation of a constitutional or statutory provision;
But the court shall not substitute its judgment for that of the agency on an issue of discretion.

§ 120.68(7)(d)-(e), Fla. Stat.

Appellant argues that the Department was bound by its suspension order to reinstate his license after the expiration of the suspension period and upon his application. He further argues that the amendment to section 626.207 requiring the lengthy disqualification period was illegally retroactively applied to his case. Considering the clear provisions of the applicable statutes, both arguments must fail.

The Department correctly applied the law to Appellant’s application for reinstatement. Section 626.641, Florida Statutes provides that an applicant for reinstatement “is subject to denial and subject to a waiting period prior to approval on the same grounds that apply to applications for licensure” pursuant to section 626.207, Florida Statutes, and other statutes. Section 626.207(4)(a), Florida Statutes, disqualifies an applicant who has pleaded nolo contendere to a felony involving moral turpitude and the disqualification period is 15 years from the date Appellant’s probation was terminated.

The administrative disciplinary proceeding resulting in the suspension of Appellant’s adjuster’s license was a separate proceeding from Appellant’s application for reinstatement, governed by different statutes. The final agency action in that prior matter did not constitute an agreement by the Department to reinstate Appellant’s license upon his application. The Department’s denial of the application was not inconsistent with the previous final order suspending Appellant’s license, and even if it had been inconsistent with that order, the final agency action denying reinstatement was not an erroneous interpretation of any provision of law or an exercise of agency discretion in violation of any agency policy, statute, or constitutional provision. § 120.68(7)(d)-(e), Fla. Stat.

Likewise, the recent amendment to section 626.207 establishing the 15-year disqualification period (Ch. 2011-174, Laws of Fla.) was not retroactively applied to Appellant’s application. Section 18 of Chapter 2011-174, Laws of Florida, provides “the amendments to s. 626.207, Florida Statutes, made by this act do not apply retroactively and apply only to applicants whose applications are pending or submitted on or after the date that the amendments to s. 626.207, Florida Statutes, made by this act, become law.” The amending act became law in July, 2011. Appellant’s application for reinstatement was submitted on January 26, 2012. Because his application was submitted and pending after July of 2011, it was subject to the amendments to section 626.207.

Because Appellant did not establish any of the grounds in section 120.68(7), Florida Statutes, upon which this court could set aside the final agency action, the Department’s final order denying Appellant’s application for reinstatement of his adjuster’s license is affirmed.

PADOVANO, and ROBERTS, JJ., concur.

      . The felony was aggravated assault by threat. The charge stemmed from an altercation between Appellant and his (now former) wife and another man.


author: PER CURIAM.

text:
    Robert HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1B11-5147.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Robert Hall, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Robert Hall appeals the denial of his request for final disposition of violation of probation allegations in two felony cases in the Second Judicial Circuit in Leon County, Florida. Appellant is currently serving a sentence in federal prison and the outstanding violation of probation issues affect his eligibility for various benefits in the federal prison system.

The order Appellant challenges is not an appealable order under rule 9.140(b)(1)(D), Florida Rules of Appellate Procedure or section 924.06, Florida Statutes. It is not an order modifying or revoking probation and general law does not provide for appeal of the order. See Rogers v. State, 918 So.2d 390 (Fla. 5th DCA 2006).

Pursuant to rule 9.040(c), Florida Rules of Appellate Procedure, we have considered whether another appellate or extraordinary remedy is available to Appellant and conclude there is none. DeLuca v. State, 82 So.3d 948 (Fla. 4th DCA 2011); Saunders v. State, 837 So.2d 433 (Fla. 2d DCA 2002).

Accordingly, the appeal is DISMISSED.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Earl C. OGDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2604.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Earl C. Ogden appeals his judgments and sentences for possession of cocaine, possession of controlled substance paraphernalia, and burglary of a dwelling. The drag crimes were the subject of one case, and the burglary was the subject of another. Following our review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm his convictions and sentences but remand for correction of the judgments concerning costs.

Ogden filed a motion to correct sentencing errors under Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the court erred in imposing certain costs without orally pronouncing them: a $65 cost under section 939.185(l)(a), Florida Statutes (2010), in both cases; a $100 cost under section 938.25, Florida Statutes (2010), in the drug case; and sheriffs and prosecutor’s investigative costs under section 938.27, Florida Statutes (2010), in both cases. Ogden also argued that the investigative costs were improperly imposed because the agencies did not request them, as required for their imposition by section 938.27(1). Although the trial court granted Ogden’s motion in part, the order granting partial relief and the amended judgments and sentences were filed more than sixty days from the date Ogden filed the motion. Thus, the order and resulting amended judgments and sentences are legal nullities. Fla. R. Crim. P. 3.800(b)(2); Williams v. State, 72 So.3d 285, 285 (Fla. 1st DCA 2011); Brown v. State, 61 So.3d 1238, 1238 (Fla. 1st DCA 2011); Campbell v. State, 789 So.2d 1213, 1214 (Fla. 1st DCA 2001).

Although a mandatory cost need not be orally pronounced, it is error to impose a discretionary cost without orally pronouncing it. Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). The cost imposed under section 939.185(l)(a) and the local ordinance implementing it may stand, as it is not discretionary. However, the cost imposed under section 938.25 is discretionary and was not orally pronounced. Therefore, it must be stricken at this juncture. The investigative costs imposed under section 938.27 also must be stricken because the agencies did not request them. Accordingly, we affirm the convictions and sentences and remand this case to the trial court to strike the improperly imposed costs. The court may reimpose the section 938.25 cost after providing notice to Ogden and following the proper procedures. Nix, 84 So.3d at 426. It may not, however, reimpose the investigative costs imposed under section 938.27. DeSalvo v. State, 107 So.3d 1185, 1187 (Fla. 1st DCA 2013). If the trial court elects not to reimpose the section 938.25 cost, Ogden need not be present for the entry of the corrected judgments and sentences. Id.

AFFIRMED in part, REVERSED in part, and REMANDED.

LEWIS, C.J., CLARK, and RAY, JJ., concur.


text:
    Julie POWELL, Appellant, v. Circuit Judge John C. COOPER, Appellee.
    No. 1D13-2309.
    District Court of Appeal of Florida, First District.
    July 19, 2013.

      Julie Powell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

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


text:
    Ronterrius TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2665.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Ronterrius Turner, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Michael Scott SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3004.
    District Court of Appeal of Florida, First District.
    July 19, 2013.
    Michael Scott Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    John SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3113.
    District Court of Appeal of Florida, First District.
    July 19, 2013.

      John Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: WALLACE, Judge.

text:
    Shane Christopher NEWLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4815.
    District Court of Appeal of Florida, Second District.
    July 24, 2013.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Shane Christopher Newland appeals his judgment and sentences for burglary and first-degree petit theft following a jury trial. Mr. Newland argues that the trial court erred in denying his motion for judgment of acquittal on both counts. We conclude that the trial court did not err in denying Mr. Newland’s motion for judgment of acquittal concerning the burglary charge, and we affirm Mr. Newland’s conviction and sentence for burglary without further discussion. However, we conclude that the trial court erred in denying Mr. Newland’s motion for judgment of acquittal on the charge for first-degree petit theft because the State failed to establish that the value of the stolen property exceeded $100. Accordingly, we reverse his conviction for first-degree petit theft and remand for the trial court to enter a judgment for second-degree petit theft.

On March 21, 2011, Mr. Newland stole a wall-mounted air-conditioning unit from a trailer. The State charged Mr. Newland with burglary and first-degree petit theft related to that incident. In order to establish that Mr. Newland committed first-degree petit theft, the State had to prove beyond a reasonable doubt that the value of the stolen air conditioning unit was “$100 or more, but less than $300.” § 812.014(2)(e), Fla. Stat. (2010). Section 812.012(10)(a)(l) provides that “ ‘[vjalue’ means value determined according to ... the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.”

The only evidence the State introduced about the value of the stolen air-conditioning unit was the testimony of the owner, Kenneth Ford. Mr. Ford testified that he had probably purchased the unit and that he had purchased similar units from Lowe’s or Home Depot for “[pjrobably about $150.” Mr. Ford testified that the stolen air-conditioning unit was one to two years old. He stated that he had not had any problems with the unit and that it was working when it was stolen. When Mr. Ford was asked what the approximate value of the air-conditioning unit was- on March 21, 2011, he stated: “When they’re new you pay about $150 for them. So if you have to replace it, you pay $150.”

We agree with Mr. Newland’s argument that the State failed to establish beyond a reasonable doubt that the fair market value of the stolen air-conditioning unit was greater than $100.

Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase.

Mitchell v. State, 917 So.2d 1056, 1057 (Fla. 2d DCA 2006) (quoting Pickett v. State, 839 So.2d 860, 861-62 (Fla. 2d DCA 2003)); see also K.W. v. State, 983 So.2d 713, 715 (Fla. 2d DCA 2008) (“Generally, the evidence of value is insufficient when the State presents mere evidence of the purchase price of the stolen item but no evidence establishing the condition, quality, age, or depreciation of the item at the time it was stolen.”).

Here, there was no direct testimony about the fair market value of the air-conditioning unit. In addition, other than the fact that the air-conditioning unit was in working condition and about one to two years old, there was no evidence about the unit’s condition, quality, or any depreciation in value since its purchase. See K.W., 983 So.2d at 715; Mitchell, 917 So.2d at 1057. Moreover, there was no evidence to support the State’s assertion on appeal that “this was not an appliance which had a depreciation value” and that “[i]f it was working[,] it was worth $150[,] and if it was not workingU it was worth $0.” Thus the State’s evidence failed to establish the fair market value of the stolen air-conditioning unit.

In addition, the State could not rely upon Mr. Ford’s testimony about the replacement value of the air-conditioning unit to meet its burden in this case. First, replacement cost under the theft statute is not an appropriate measure of value “unless the State first presents evidence that the market value could not be satisfactorily ascertained.” A.D. v. State, 30 So.3d 676, 678 (Fla. 3d DCA 2010). Here, the State did not present any evidence that the fair market value of the air-conditioning unit could not be satisfactorily ascertained. Second, replacement value means replacement with like property that is similar in value to the item stolen at the time of the taking. Ramos v. State, 864 So.2d 1250, 1252 (Fla. 5th DCA 2004); Doane v. State, 847 So.2d 1015, 1017-18 (Fla. 5th DCA 2003). At best, Mr. Ford’s testimony established his estimate of the cost to buy a new air-conditioning unit based upon his prior purchase of similar new units from Lowe’s or Home Depot. He did not provide any testimony of the cost to replace the stolen air-conditioning unit within a reasonable time after the theft with a similar unit about one to two years old.

Because we conclude that the State failed to prove that the value of the property taken by Mr. Newland was greater than $100, we reverse his conviction for first-degree petit theft and remand for the trial court to enter a judgment against him for second-degree petit theft. See Mitchell, 917 So.2d at 1057.

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and LaROSE, J., Concur.


author: SILBERMAN, Judge.

text:
    Marcus T. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4097.
    District Court of Appeal of Florida, Second District.
    July 24, 2013.

      Peter D. Andrews, St. Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Marcus T. Brown appeals from an order revoking his sex offender probation, arguing that the State did not present competent, substantial evidence to support the revocation. The State has appropriately conceded error. Accordingly, we reverse and remand for further proceedings.

After a routine search of his home, Brown was charged with a violation of condition 22 of his sex offender probation, which prohibited him from viewing, owning, or possessing any obscene, pornographic, or sexually stimulating material relevant to his deviant behavior pattern. Specifically, Brown’s probation officers discovered two allegedly pornographic videotapes, one of which was in Brown’s VHS player. The State did not elicit much information about the VHS tapes at the violation of probation hearing, other than their titles. One probation officer described hitting the VHS play button and finding “sexual content.” Brown testified that he had received these tapes from a friend. When he put one of them in the player, he saw “nasty” images and immediately turned it off and began watching TV.

Not only did the State fail to submit evidence about the specific sexual content on the videotapes, it also failed to elicit any information about the factual circumstances of the offenses for which Brown had been placed on probation. The record demonstrates that Brown entered a plea in 2004 to one count of attempted sexual battery on a child under twelve and one count of lewd act. For the attempted sexual battery he was sentenced to ten years in prison followed by seven years of probation, and for the lewd act he was sentenced to ten years in prison followed by five years of probation, the sentences to be served concurrently. After serving an unspecified number of years in prison, Brown was released on sex offender probation. The State presented nothing at the hearing about the details of Brown’s offenses. Nevertheless, after determining that Brown had committed a willful and substantial violation by possessing and viewing a pornographic videotape, the trial court revoked his probation. The court sentenced him on the attempted sexual battery to twenty years in prison followed by ten years’ probation, and on the lewd act to a concurrent term of fifteen years in prison.

The trial court committed reversible error by revoking Brown’s probation without sufficient evidence that the videotapes Brown possessed were relevant to the deviant behavior for which he had been convicted. In Kasischke v. State, 991 So.2d 803, 815 (Fla.2008), the supreme court examined the statute that prohibits sexual offenders on probation from possessing pornographic or obscene material and determined that “[a]n offender does not violate this condition unless the ‘obscene, pornographic, or sexually stimulating’ material at issue is relevant to the ‘deviant behavior pattern.’ ” Whether this relevance requirement can be met will depend upon an examination not only of the pornographic or obscene material but also of the underlying circumstances of the probationer’s offenses. See Sellers v. State, 16 So.3d 225, 227 (Fla. 5th DCA 2009). As noted in Bauer v. State, 96 So.3d 1063, 1067-68 (Fla. 4th DCA 2012), the legislature’s inclusion of the requirement that the material be relevant to the deviant behavior pattern reflects its “recognition that, under certain circumstances, a defendant’s viewing, owning, or possessing of obscene, pornographic, or sexually stimulating visual or auditory material would not be ‘relevant.’ ” For the State to meet its burden for revocation of probation for violation of this condition, it may be necessary in some instances to present expert testimony. Id. at 1068-69; Sellers, 16 So.3d at 227.

Here, the crucial factor of relevance of the pornographic material to Brown’s deviant behavior pattern cannot be derived from the evidence submitted to the trial court. Absolutely nothing about the underlying offenses or Brown’s deviant behavior pattern was presented by the State. Furthermore, no one appears to have closely examined the videotapes, and the trial court did not do so. In an entirely conclusory summation at the end of the case, the prosecutor argued simply that “based on the fact that one of these tapes dealt with what at least appeared to be younger adults I don’t think this was actual child pornography but we feel he is a risk to the community at this point.” Despite the fact that the evidence presented by the State was legally insufficient, the trial court found that Brown had committed a willful and substantial violation, revoked his probation, and sentenced him to prison.

Because the trial court improperly revoked Brown’s probation on insufficient evidence, we reverse and remand for the trial court to vacate Brown’s prison sentence and reinstate him to probation. See Miller v. State, 958 So.2d 981, 985 (Fla. 2d DCA 2007); Hicks v. State, 890 So.2d 459, 462 (Fla. 2d DCA 2004).

Reversed and remanded.

DAVIS, C.J., and WALLACE, J., Concur.

      . § 948.03(5)(a)(7), Fla. Stat. (1998). The statute has been amended and renumbered, see § 948.30(l)(g), Fla. Stat. (2012), but the changes have no effect on this disposition.


author: CRENSHAW, Judge.

text:
    Valeera REED, Appellant, v. SCHUTZ LITIGATION LLC; Schutz & Schutz, P.A. d/b/a Schutz Litigation LLC; Law Group; and Donald J. Schutz, Appellees.
    No. 2D12-4516.
    District Court of Appeal of Florida, Second District.
    July 24, 2013.

      Michael J. Brevda of Domnick & Shevin, PL, Palm Beach Gardens, for Appellant.
    Kenneth A. Hall of Goodis Thompson Miller, P.A., St. Petersburg, for Appellees.
   CRENSHAW, Judge.

In this legal malpractice action, Valeera Reed appeals the final summary judgment entered in favor of her former attorney, Donald J. Schütz, and Schütz Litigation, LLC (collectively, Schütz). Because there are genuine issues of material fact, we reverse.

Factual Background

This case began when Ms. Reed was admitted to the hospital following a stroke. She was placed under supervision, and a physical therapist was required to accompany Ms. Reed to the restroom because Ms. Reed was at a high risk of falling. On one trip to the restroom, however, Ms. Reed was not properly supervised by her physical therapist, and she fell off the toilet, striking her head and back. Soon thereafter, Ms. Reed complained of injuries, including a severe headache. Following her fall, Ms. Reed retained Mr. Schütz as legal counsel to represent her in a medical malpractice claim against the hospital arising from the physical therapist’s failure to supervise her in contravention of the hospital’s own policies and procedures.

Eventually, Mr. Schütz withdrew as counsel for Ms. Reed’s medical malpractice claim against the hospital. Ms. Reed maintains that Mr. Schütz consistently told her that her claim against the hospital was subject to a four-year statute of limitations. In reality, Ms. Reed’s claim was subject to a two-year statute of limitations, and she was barred from bringing suit because her medical malpractice claim was not timely brought. As a result, Ms. Reed filed suit against Schütz for legal malpractice, asserting that her medical malpractice claim against the hospital was barred due to Mr. Schutz’s misinformation about the applicable statute of limitations. Ultimately, the trial court entered final summary judgment in favor of Schütz, and this timely appeal followed.

Analysis

“Summary judgment is proper only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” MarElia v. Yanchuck, Berman, Wadley & Zervos, P.A., 966 So.2d 30, 33 (Fla. 2d DCA 2007) (citing Goeree v. Mirtsou, 923 So.2d 610 (Fla. 2d DCA 2006)); see Fla. R. Civ. P. 1.510. Summary judgment should not be granted if there is “even the slightest doubt” as to whether any genuine issue of material fact exists. Rogers v. Ruiz, 594 So.2d 756, 766 (Fla. 2d DCA 1991). As one court previously stated,

[i]f material facts are conflicting, i.e., if facts permit different reasonable inferences to be drawn, or if facts even tend to prove material issues, then summary judgment may not be granted. Summary judgment is proper only where “the record affirmatively showed that the plaintiff[ ] could not possibly prove [her] case, and not because [she] had simply failed to come forward with evidence doing so.”

Hodge v. Cichon, 78 So.3d 719, 722 (Fla. 5th DCA 2012) (citation omitted) (quoting Webster v. MaHin Mem’l Med. Ctr., Inc., 57 So.3d 896, 897-98 (Fla. 4th DCA 2011)).

Applying this standard in Ms. Reed’s legal malpractice case, in order for Schutz’s motion for summary judgment to be granted, Schütz had the burden of proving that Ms. Reed could not possibly prove: (1) Mr. Schütz had been employed as her attorney, (2) Mr. Schütz neglected a reasonable duty, or (3) Mr. Schutz’s negligence was the proximate cause of loss to Ms. Reed. See Tarleton v. Arnstein & Lehr, 719 So.2d 325, 328 (Fla. 4th DCA 1998). Schütz focuses on the third element of Ms. Reed’s legal malpractice case and argues that summary judgment was properly granted because Ms. Reed failed to provide sufficient summary judgment evidence of causation in her underlying medical malpractice case. See id. (“To prevail on the [legal] malpractice claim, the client has to prove that she would have prevailed on the underlying action but for the attorney’s negligence.”).

Based on the summary judgment evidence, however, there is a genuine issue of material fact regarding causation in the underlying medical malpractice case, and summary judgment should not have been granted. In support of her case, Ms. Reed provided deposition testimony from a nurse and an occupational therapist who supervises and trains physical therapists. The nurse characterized Ms. Reed’s fall as a “significant fall” based upon the fact that Ms. Reed hit her head, landed on a concrete floor, and struck “some type of an existing apparatus.” Additionally, Ms. Reed’s medical records and deposition testimony provide some support for the assertion that Ms. Reed’s alleged injuries are causally related to the fall she suffered as a result of the physical therapist’s failure to properly supervise her. Notably, in a case such as this where the record does not affirmatively show an absence of the required causal relationship, “the plaintiff, who is opposing the motion, is under no obligation to put in evidence showing such causal relationship,” as Ms. Reed has done. Visingardi v. Tirone, 193 So.2d 601, 604 (Fla.1966).

Conclusion

For the foregoing reasons, we conclude that the trial court should not have granted Schutz’s motion for summary judgment. Accordingly, we reverse.

Reversed and remanded.

NORTHCUTT and VTLLANTI, JJ., Concur.

      . Originally, Ms. Reed also filed suit against another attorney who is not a party to this appellate proceeding.

      . Schütz does not argue that the summary judgment evidence affirmatively disproves causation in the underlying medical malpractice case.

      . Both of these medical professionals agreed that the hospital’s physical therapist deviated from the standard of care by failing to supervise Ms. Reed in the restroom. The hospital's physical therapist also admitted to violating hospital policies and procedures by failing to supervise Ms. Reed in the restroom.


author: VAN NORTWICK, JR., J.

text:
    M.D.C., Appellant, v. B.N.M.J., Appellee.
    No. 1D12-5376.
    District Court of Appeal of Florida, First District.
    July 24, 2013.

      J. Mark Dubose, Jr. of Alba & Dubose, P.A., Gainesville, for Appellant.
    No appearance for Appellee.
   VAN NORTWICK, JR., J.

M.D.C. appeals the trial court’s order dismissing with prejudice his amended petition for termination of parental rights and for adoption of an adult. Because we conclude that the trial court erred in ruling that this action was not authorized by section 63.042(2)(c), Florida Statutes (2012), we reverse and remand for further proceedings.

The amended petition alleged that B.N.M.J., the adoptee and appellee, is the biological child of M.D.C. and K.M.J. (the mother); that M.D.C. voluntarily and formally terminated his parental rights years ago when the mother married G.L.J., the step-father; and that the step-father adopted B.N.M.J. According to the amended petition, the mother and the step-father have since divorced; the stepfather has no parent-child relationship with B.N.M.J.; M.D.C. and B.N.M.J. have reestablished a healthy parent-child relationship; and M.D.C. wishes B.N.M.J. to have the same rights as his other children.

The amended petition included a consent of the adoptee, executed by B.N.M.J., and a consent and waiver of parent, executed by the step-father. The amended petition alleged that M.D.C. is currently married to T.C., who supports the adoption but is not listed as a party because B.N.M.J.’s biological mother will continue as the child’s legal mother. The mother likewise consented to the proposed adoption. The amended petition lastly asserted that M.D.C. had satisfied the statutory pleading and service requirements.

The trial court dismissed the amended petition, ruling that “[ujnder the current state of the law, this action is not authorized.” The trial court reasoned that “the plain language of [section 63.042(2)(c) ], especially when taken in context with the remainder of the language in the section, contemplates a married person adopting as a single individual. It does not describe a situation where a married person adopts a child with another married person who is not his or her spouse.” The trial court observed that public policy was in favor of allowing B.N.M.J.’s biological parents to serve as her legal parents, but the statute does not have an exception to enable that to occur in this situation. This appeal followed.

We apply a de novo standard to review a trial court’s interpretation of a statute. Hooks v. Quaintance, 71 So.3d 908, 910 (Fla. 1st DCA 2011). Legislative intent is the touchstone of statutory analysis; in determining the legislature’s intent courts should initially look to the plain meaning of a statute’s text. Id. “Courts are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications ... If the meaning of the statute is clear then the court’s task goes no further than applying the plain language of the statute.” Id. at 911 (citation and quotation omitted).

Under Florida law, “[a]ny person, a minor or adult, may be adopted.” § 63.042(1), Fla. Stat. (2012). The statutorily enumerated list of those who may adopt includes:

(a) A husband and wife jointly;
(b) An unmarried adult; or
(c) A married person without the other spouse joining as a petitioner, if the person to be adopted is not his or her spouse, and if:
1. The other spouse is a parent of the person to be adopted and consents to the adoption; or
2. The failure of the other spouse to join in the petition or to consent to the adoption is excused by the court for good cause shown or in the best interest of the child.

§ 63.042(2).

Here, B.N.M.J. is clearly eligible for adoption. M.D.C. is not precluded from seeking to adopt B.N.M.J. because he previously terminated his parental rights to her. Stefanos v. Rivera-Berrios, 673 So.2d 12, 13 (Fla.1996), reh’g denied (“[A] parent whose parental rights have been terminated is not precluded from establishing new rights to his or her child through independent adoption proceedings.”).

M.D.C. is a married person whose spouse is not joining the petition for adoption. M.D.C. explained in his amended petition that his present spouse was not joining in the adoption petition because B.N.MJ.’s biological mother would continue to fulfill the role of legal mother. If the amended petition were granted, the end result would be that B.N.MJ.’s biological parents would also be her legal parents, a circumstance which the trial court recognized to be supported by public policy.

The trial court, on its own initiative, dismissed M.D.C.’s amended petition because it found that the statute did not envision the adoption contemplated here and that no exception existed to relieve M.D.C. from the strictures of the statute. M.D.C. appears, however, at least facially, to qualify as a person who may adopt under the plain language of section 63.042(2)(c)2. Thus, no exception to the statutory mandate would be required to enable M.D.C. to adopt, or at least to proceed to an evidentiary hearing in which he would be given the opportunity either to show good cause why his present spouse did not join the adoption petition or to show that the adoption is in B.N.M.J.’s best interest.

By holding that an exception is necessary to allow M.D.C. to go forward in this action, the trial court impermissibly construed the statute to require something of M.D.C. that was not included in the plain language utilized by the legislature. See Hooks, 71 So.3d at 911. The trial court never made a ruling or conducted an evi-dentiary hearing on the issues of whether M.D.C. had established good cause for not joining his spouse in the petition or whether the adoption is in the best interests of B.N.M.J. Under the statute, the failure of M.D.C.’s spouse to join in the adoption is not fatal. The statute clearly provides that, if the married adopter does not join his or her spouse in the action, the presiding trial court may find that the failure to join is for good cause or in the best interests of the child, and allow the adoption to proceed.

Accordingly, we REVERSE the trial court’s order of dismissal and REMAND with instructions for the trial court to reinstate the amended petition and conduct an evidentiary hearing to determine, pursuant to section 63.042(2)(c)2., Florida Statutes, whether good cause exists as to why M.D.C.’s spouse is not joined in the amended petition, or whether the non-join-der of M.D.C.’s spouse is in B.N.M.J.’s best interest.

MARSTILLER and RAY, JJ., concur.


author: LaROSE, Judge.

text:
    Lee Andrew SHIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-964.
    District Court of Appeal of Florida, Second District.
    July 24, 2013.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Lee Shields entered an open plea in several cases for possession of cocaine, obstructing an officer without violence, grand theft, and felony petit theft. He now appeals an order denying his motion for postconviction relief in case number 2008-CF-3528. See Fla. R.Crim. P. 3.850. More specifically, Mr. Shields argues that his trial counsel was ineffective for advising him to plead to grand theft when the evidence did not support the original claim of burglary and the value of the stolen item supported only the offense of petit theft. See generally Marrero v. State, 71 So.3d 881, 887-88 & n. 1 (Fla.2011) (delineating value amounts relating to theft charges). To its credit, the State agrees. We reverse the order denying the motion and remand for the trial court to allow Mr. Shields the opportunity to withdraw his plea. See Matton v. State, 872 So.2d 308, 312 (Fla. 2d DCA 2004).

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: WOLF, J.

text:
    Jarvis A. HOLMES and Marsha Holmes, Appellants, v. AREA GLASS, INC. and State Farm Mutual Insurance Company, Appellees.
    No. 1D12-2739.
    District Court of Appeal of Florida, First District.
    July 26, 2013.

      John W. Wesley of Wesley, McGrail & Wesley, Ft. Walton Beach, for Appellants.
    Ellen C. Pappas of Seymour & Whitney, Ft. Walton Beach, for Appellees.
   WOLF, J.

Appellants, the plaintiffs in the trial court, raise several issues on appeal. We find that one has merit and requires reversal and remand for a new trial. It is, therefore, unnecessary to reach the other issues. We determine the trial court erred in denying the request to remove a dismissed party from the caption on the verdict form.

In March 2009, appellants, Jarvis and Marsha Holmes, filed a negligence action against Area Glass, Inc. (Area Glass) and State Farm Mutual Insurance Company (State Farm). They alleged they contacted their insurance company, State Farm, about a damaged windshield, and State Farm directed them to use Area Glass for repairs. They asserted that Area Glass negligently and improperly replaced the windshield which allowed water to leak inside the vehicle resulting in mold and mildew exposure to Mr. Holmes. Count I addressed Area Glass’ negligence in replacing the windshield. Count II alleged that State Farm was negligent by failing to investigate Area Glass adequately before hiring it and by failing to confirm that Area Glass was adequately insured against potential harm done to appellants. Appellants claimed that the actions of Area Glass and State Farm resulted in physical injury to Mr. Holmes, loss of use and value of the car, and loss of consortium to Mrs. Holmes. The complaint did not expressly allege that State Farm was in any way vicariously liable for Area Glass’ negligence.

In October 2010, appellants voluntarily dismissed Area Glass from the lawsuit. The notice of dismissal and any potential settlement agreement were not included in the record on appeal. There appears, however, to be no dispute that a settlement occurred.

Prior to trial in April 2012, the parties submitted proposed verdict forms. Appellants’ form purposely did not include Area Glass in the caption. State Farm objected, arguing that the captions of a case should not be changed. Counsel pointed to Traw-ick’s Florida Practice and Procedure, § 6-2, which states that “the names of the parties in the caption are never changed even when all original parties have ceased to be parties.” Counsel also cited to Altamonte Hitch & Trailer Service, Inc. v. U-Haul Co. of Eastern Florida, 498 So.2d 1346 (Fla. 5th DCA 1986), for the same proposition. State Farm specifically feared that, without Area Glass in the caption, the jury would believe that State Farm was Area Glass’ insurer, that Area Glass was somehow under insured or that State Farm would be “on the hook” for Area Glass’ negligence.

Appellants pointed out that witnesses were repeatedly asked the question to make it clear that State Farm was not Area Glass’ insurer, and that Altamonte Hitch was not on point since it involved the question of recovering attorney’s fees against someone listed in the caption but not in the body of the complaint. Counsel argued that listing Area Glass on the verdict form would be counter to the rule which excludes disclosure of settlement to the jury. Counsel feared the jury would be inquisitive and notice that something was amiss. The court chose to leave Area Glass in the caption of the verdict form.

Once the case was tendered to the jury for deliberation, the jury returned the question: “Why is Area Glass listed as a defendant on the top of the verdict form?” Appellants asked the court to answer that the only defendant in the case was State Farm. The court instead chose to tell the jury that it could not answer the question and that they should “look to the testimony and the evidence that was presented and draw conclusions from that.” A few minutes later the jury returned a verdict in State Farm’s favor.

Appellants filed a motion for new trial based on the inclusion of Area Glass in the caption and stated Area Glass’ absence from the case could only imply that it had settled, which was an inference the jury should not have been encouraged to make. The trial court summarily denied the motion without explanation.

We see no valid reason for including Area Glass in the caption to the verdict form and also determine the trial court’s response to the jury’s question exacerbated the problem.

Section 768.041, Florida Statutes (2012), prohibits the admission at trial of any evidence of settlement or dismissal of a defendant. Specifically, “the fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.” The unambiguous language of the statute admits no exceptions, and violation of the prohibition is reversible error. Saleeby v. Rocky Elson Const., Inc., 3 So.3d 1078, 1080 (Fla.2009). Even a reference to settlement by counsel during voir dire or arguments necessitates a new trial. See Muhammad v. Toys R Us, Inc., 668 So.2d 254 (Fla. 1st DCA 1996) and Henry v. Beacon Ambulance Service, Inc., 424 So.2d 914 (Fla. 4th DCA 1982). In other words, disclosure of the fact of settlement or dismissal is prohibited regardless of whether it is presented to the jury through evidence or through some other means.

While the jury in this case was not expressly told that Area Glass had been dismissed from the case, appellants argue that the only inference the jury could make from the caption on the verdict form was that Area Glass had been a defendant in the case and had been dismissed. Appellants further argue that the jury’s question shows that this is the very inference that the jury reached.

There is no rule that the caption listed on the verdict form must be identical to the caption used on all the pleadings. Further, Altamonte Hitch, relied on by State Farm, does not stand for the proposition that the case style can never be changed. Rather, it stands for the proposition that the caption is not part of the pleading for purposes of motions directed to the pleading. In Altamonte Hitch, an award of attorney’s fees could not be recovered against one of several parties listed in the caption when the counter complaint never sought fees specific to that party. 498 So.2d at 1347.

While there are not any Florida cases directly on point regarding the inclusion of dismissed parties on the verdict form, a case from Alabama is instructive. The Supreme Court of Alabama imposed an affirmative duty on the trial court to ensure that the jury was not inadvertently informed that the defendant had insurance. Moore v. United Services Auto. Ass’n, 898 So.2d 725 (Ala.2004). The verdict form in that case erroneously included the name of the insurance company, which was listed as a party in the style of the case but opted out of participation at trial as allowed by state law. Id.

In this case, we find that it was a violation of section 768.041 to include Area Glass on the verdict form when the defendant had been apparently dismissed from the case. The error was compounded when the trial court told the jury to “draw its own conclusions” in answer to the jury question. The trial court essentially invited the jury to infer that Area Glass had been dismissed ■ or had settled the case, information that “shall not be made known to the jury.” This constituted reversible error pursuant to Saleeby. Given the jury question, and the speed with which the jury returned a verdict after the court’s answer, it appears that the caption (and the likely inference that appellants had already recovered from Area Glass) did, in fact, influence the verdict.

As for State Farm’s fear that the jury would assume that it was Area Glass’ insurer or was required to cover appellants’ damages as their insurer, any misunderstandings could have been addressed through witness testimony and during arguments. Further, the main argument at trial was that State Farm was directly negligent in utilizing Area Glass to replace the windshield. State Farm had ample opportunity to educate the jury about its contractual duty to appellants and the lack thereof to Area Glass. The statutory prohibition against informing the jury of settlement and dismissal evinces a public policy concern that outweighs State Farm’s generalized fears that could have been resolved with proper jury education.

REVERSED and REMANDED for a new trial.

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

       The motion also pointed out that State Farm did not request that Area Glass be included in the verdict form as a Fabre defendant to apportion liability. See Fabre v. Marin, 623 So.2d 1182 (Fla.1993).


text:
    T. F., Appellant, v. N.M. n/k/a N. D., Appellee.
    No. 1D13-2892.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Angela M. Cancio, Live Oak, for Appellant.
    Robert A. Sandow, Lake City, and Christina Nieto Seifert, of Seifert Law Firm, P.A., Lake City, for Appellee.
   PER CURIAM.

This appeal is dismissed as untimely filed. See Fla. R. Juv. P. 8.265(b)(3). The dismissal is without prejudice to appellant’s filing in the trial court a petition for habeas corpus seeking belated appeal. See In the Interest of E.H., 609 So.2d 1289 (Fla.1992).

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


text:
    Robert SNIPE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2061.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Nancy A. Daniels, Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant filing a proper petition for belated appeal sworn to by petitioner or counsel. Fla. R.App. P. 9.130(c)(4).

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


text:
    RHINEHART EQUIPMENT CO., Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 1D13-1909.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Richard L. Winston of K & L Gates, LLP, Miami, for Appellant.

      Pamela Jo Bondi, Attorney General, and John Mika, Assistant Attorney General, Tallahassee; Nancy Terrel, General Counsel, Department of Revenue, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the parties’ responses to the Court’s orders of May 1, 2013, May 29, 2013, and June 17, 2013, the Court has determined that the order on appeal is not a final administrative order because it fails to bring the administrative adjudicative process to a close. See Hill v. Division of Retirement, 687 So.2d 1376 (Fla. 1st DCA 1997). Accordingly, the appeal is dismissed for lack of jurisdiction.

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


text:
    CABANA BEACH CLUB, LLC, Appellant, v. RCS-CABANA CAY, LLC, Cabana Cay Investments, LLC, et al., Appellees.
    No. 1D13-54.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Joseph M. Cook, Miramar Beach, for Appellant.
    John H. Pelzer of Greenspoon Marder, P.A., Ft. Lauderdale, for Appellees.
   PER CURIAM.

Appellant challenges the final judgment of foreclosure entered by the trial court. Appellant raises three arguments, the first two of which have no merit. Consequently, we affirm the foreclosure judgment without further comment. Appellant’s third issue raised is regarding the disbursement of escrowed funds. This issue has not been ruled on by the trial court; therefore, we remand for the trial court to rule on Appellant’s Motion to Enforce Order.

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

BENTON, THOMAS and CLARK, JJ., concur.


text:
    STATE of Louisiana v. Andrew KYLE.
    No. 2013-KK-0647.
    Supreme Court of Louisiana.
    June 14, 2013.
   PER CURIAM.

| TWrit granted; stay vacated; case remanded. This Court’s jurisprudence regarding the funding of costs and expenses of pro bono counsel appointed to represent indigent defendants in criminal cases has evolved primarily in the context of capital prosecutions in which the heightened need for reliability invariably requires substantial financial investment in the services of investigators and experts as counsel prepares for both the guilt and sentencing stages of trial. State v. Citizen, 04-1841 (La.4/1/05), 898 So.2d 325; State v. Craig, 93-2515 (La.5/23/94), 637 So.2d 437; State v. Wigley, 624 So.2d 425 (La.1993). In that context, a trial court appropriately considers at the outset whether funding is available to private counsel appointed to represent the defendant, and if it is not, as we made clear in Citizen, may consider staying the proceedings until funding is made available. The court thereby avoids confronting counsel with a choice either to undertake a considerable financial burden with no certainty of repayment or to fore-go the expense of obtaining additional resources at the risk of rendering |2ineffective assistance, particularly at the sentencing stage of the capital proceeding. See, e.g., Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

In the context of non-capital prosecutions, such as the present case, a trial court may not appropriately presume that counsel will invariably require substantial additional resources to represent the defendant adequately at trial. Testimony adduced at the hearing on counsel’s motion for funding indicated that only two pro bono counsel had asked the District Public Defender for additional funds for investigators, in amounts not more than $1000, and that the funds had in fact been found despite a cutback in overall services that led to a marked increase in the appointment of pro bono counsel. A trial court acts prematurely in staying the proceedings in non-capital cases at the outset on a generalized undifferentiated request by pro bono counsel for funding and before counsel has made a particularized showing funds are necessary for investigators or experts according to the standard we set forth in State v. Touchet, 93-2889, p. 6 (La.9/6/94), 642 So.2d 1213, 1216: “there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial.” See also State v. Madison, 345 So.2d 485, 490 (La.1977) (“The right to a private investigator may in many cases be an adjunct to the right to counsel: furnishing counsel to the indigent defendant is not enough if counsel cannot secure information on which to construct a defense.... Therefore, when an indigent defendant shows that his attorney is unable to obtain existing evidence crucial to the defense, the means to obtain it should be provided for him, and if the indigent defendant system cannot defray the expense, the State ought to supply the funds.”). If counsel makes that particularized showing, and funding |sdoes not appear forthcoming, the trial court may then consider other appropriate alternatives, including a stay of the proceedings, until funding is made available.


text:
    In re Darryl M. BREAUX.
    No. 2013-B-1123.
    Supreme Court of Louisiana.
    June 14, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled his client trust account by maintaining personal funds in the account and allowing it to become overdrawn. Respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 1.15(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Darryl M. Breaux, Louisiana Bar Roll number 01729, be suspended from the practice of law for a period of six months, fully deferred, subject to a one-year period of probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


text:
    In re Joseph SEJUD.
    No. 2013-OB-1103.
    Supreme Court of Louisiana.
    June 14, 2013.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Joseph Sejud, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of five years. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by him with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon him by the Office of Disciplinary Counsel. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re Arthur GILMORE, Jr.
    No. 2013-B-1284.
    Supreme Court of Louisiana.
    June 19, 2013.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that Arthur Gilmore, Jr., Louisiana Bar Roll number 1059, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

FOR THE COURT:

/s/ Jeannette T. Knoll Justice, Supreme Court of Louisiana


text:
    In re Frank E. LEMAIRE.
    No. 2013-OB-1380.
    Supreme Court of Louisiana.
    June 19, 2013.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Frank E. Le-maire, Louisiana Bar Roll number 22821, 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.

FOR THE COURT:

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


author: PER CURÍAM.

text:
    In re Scott David BEAL.
    No. 2013-B-0972.
    Supreme Court of Louisiana.
    June 21, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURÍAM.

11 Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Scott David Beal, an attorney licensed to practice law in the States of Louisiana, Illinois, and Mississippi, based upon discipline imposed by the Supreme Court of Illinois.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The Yankura Matter

In December 1999, John Yankura hired respondent to represent him in a personal injury matter. Respondent filed a lawsuit on Mr. Yankura’s behalf but subsequently neglected the matter. The suit was eventually dismissed due to respondent’s failure to use reasonable diligence to serve the defendant. Respondent also failed to communicate with Mr. Yankura during the representation despite Mr. Yankura’s numerous attempts to contact him. Respondent eventually moved to North Carolina but neglected to inform Mr. Yankura.

The Tribolet Matter

Un June 2006, Catherine and James Tribolet hired respondent to represent them in a pending personal injury lawsuit. Eventually, the lawsuit was dismissed for lack of prosecution. Respondent made no effort to reinstate the case and failed to tell the Tribolets of the dismissal.

The Ritchie Matter

In September 2005, Emilia Ritchie hired respondent to represent her in a personal injury matter. Respondent filed a lawsuit on Ms. Ritchie’s behalf. However, in January 2009, he settled the case for $25,000 without Ms. Ritchie’s authorization. Ms. Ritchie’s case was dismissed with prejudice, but respondent failed to inform her of the dismissal. After Ms. Ritchie refused to sign the settlement release, respondent would not return her telephone calls.

The Chester Matter

In June 2006, Rodney Chester hired respondent to represent him in a personal injury matter. Respondent filed a lawsuit on Mr. Chester’s behalf, but the case was dismissed in January 2009 for lack of prosecution. Respondent made no effort to reinstate the case and failed to inform Mr. Chester of the dismissal. Between January 2009 and February 2010, Mr. Chester tried to contact respondent regarding the status of the case, but respondent failed to return his telephone calls.

The Donnelly Matter

In 2003, Christopher Donnelly hired respondent to represent him in a personal injury matter. In October 2004, respondent filed a lawsuit on Mr. Donnelly’s behalf. In May 2009, respondent settled Mr. Donnelly’s case for $25,000 without Mr. Donnelly’s authorization. After the ease was dismissed 1 ¡¡pursuant to the settlement agreement, respondent informed Mr. Don-nelly of the settlement. Mr. Donnelly agreed to sign the settlement release, and the settlement check was sent to respondent in October 2009. However, a year later, respondent still had not made any effort to distribute the settlement proceeds to Mr. Donnelly.

Rlinois Discipline

In September 2012, the Supreme Court of Illinois suspended respondent from the practice of law for two years and until further order of the court for violating the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15(d) (failure to timely remit funds to a client or third person), 3.2 (failure to make reasonable efforts to expedite litigation), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). In re: Scott David Beal. Disciplinary Commission, M.R. 25422.

After receiving notice of the Illinois order of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Certified copies of the order of the Supreme Court of Illinois were attached to the motion. On May 2, 2013, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D). That rule provides:

| .«Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline ... unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(8) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or (4) The misconduct established warrants substantially different discipline in this state; ...
If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

In the instant case, respondent has made no showing of infirmities in the Illinois proceeding, nor do we discern any from our review of the record. Furthermore, we find no reason to deviate from the sanction imposed in Illinois. Although we are not required to impose the same sanction as that imposed by Illinois, nevertheless, only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461. See also In re Zdravkovich, 881 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”).

Here, there is little doubt that respondent’s conduct would warrant discipline in Louisiana, given that he neglected legal matters, settled cases without his | r,clients’ approval, and failed to disburse settlement funds to a client. Under these circumstances, we find that a two-year suspension is warranted.

Accordingly, we will impose the same discipline against respondent as was imposed in Illinois.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that respondent, Scott David Beal, Louisiana Bar Roll number 22941, be suspended from the practice of law for two years.

      . Respondent's license to practice law in Louisiana is currently inactive.


text:
    In re Frank D. BARBER, III.
    No. 2013-B-1132.
    Supreme Court of Louisiana.
    June 21, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Respondent was convicted of aggravated assault and driving while intoxicated. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Frank D. Barber, III, Louisiana Bar Roll number 1004, be suspended from the practice of law for a period of two years, retroactive to March 28, 2012, the date of his interim suspension.

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


text:
    In re Nelvil B. HOLLINGSWORTH.
    No. 2013-B-1225.
    Supreme Court of Louisiana.
    June 21, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Respondent was convicted of simple possession of marijuana. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Nelvil B. Hollingsworth, Louisiana Bar Roll number 20225, be suspended from the practice of law for a period of one year and one day, retroactive to May 30, 2012, the date of his interim suspension.

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


text:
    In re Michael Kevin POWELL.
    No. 2013-B-1264.
    Supreme Court of Louisiana.
    June 21, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Respondent was arrested and charged with three counts of possession of a Schedule I controlled dangerous substance. Pri- or to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Michael Kevin Powell, Louisiana Bar Roll number 25324, be suspended from the practice of law for a period of one year and one day, retroactive to April 25, 2012, the date of his interim suspension.

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


text:
    STATE of Louisiana v. Gilbert BAHAM.
    No. 2013-KK-0901.
    Supreme Court of Louisiana.
    June 28, 2013.
   PER CURIAM.

1(Writ granted. The judgment of the trial court finding no probable cause to substantiate the charges against Gilbert Baham and suppressing the evidence against him is reversed.

At the preliminary hearing, Detective Daniel Hunter of the New Orleans Police Department testified that on or about May 13, 2012, he had received information from a familiar and reliable confidential informant that a subject known as Gilbert was selling heroin from the residence at 2704 Frenchmen Street and that the subject also kept narcotics at 2305 Marigny Street.

Detective Hunter arranged for the confidential informant to participate in a controlled buy under Hunter’s supervision and observation. Prior to the controlled buy, Detective Hunter searched the confidential informant’s person to insure that he was free from any monies or contraband. After performing the search, the detective provided the confidential informant with money from the New Orleans Police Department Expense Fund. The confidential informant then contacted Baham by telephone to arrange the controlled buy, which was to take place at 2704 Frenchmen Street.

Detective Hunter transported the confidential informant to 2704 Frenchmen Street, where Detective Hunter dropped him off and watched him approach the | ^residence. The confidential informant knocked on the door, but no one answered. Shortly thereafter, however, Baham arrived at the residence in a vehicle. Baham accepted money from the confidential informant and went inside the residence. Approximately thirty seconds later, Baham emerged from the residence and handed the confidential informant a small package containing what was later confirmed to contain marijuana. Baham then returned to his vehicle and left the scene.

Detective Hunter then picked up the confidential informant and followed Baham to 2305 Marigny Street. Once at 2305 Marigny Street, Detective Hunter observed Baham exit his vehicle and enter the larger of two structures located at that address.

On the basis of the confidential informant’s information and Detective Hunter’s own observations, the detective then applied for and obtained two search warrants, one for the premises at 2704 Frenchmen Street and one for the premises at 2305 Marigny Street.

With the warrants in hand, Detective Hunter set up surveillance on May 16, 2012, at 2305 Marigny Street and assigned another detective to set up surveillance at 2704 Frenchmen Street. Within minutes, Baham was seen at 2704 Frenchmen Street. Detective Hunter relocated to 2704 Frenchmen Street and positively identified Baham. With Baham positively identified as being present at 2704 Frenchmen Street, the warrants were executed simultaneously.

The search of 2704 Frenchmen Street yielded six clear plastic bags of marijuana located on a scaffold near the front door on the left and a .38 Special revolver located on a rafter towards the interior of the residence. The search of 2305 Marigny Street turned up a digital scale and a box of ammunition. On the basis of this evidence, Baham was arrested and charged with Possession with Intent to Distribute Marijuana and Possession of a Firearm by a Convicted Felon. [SA search of Baham’s person incident to his arrest yielded approximately $950.00 in cash.

At the conclusion of the preliminary hearing, the State introduced the search warrants and returns for the search of the two addresses, the results of the drug field test, and a certified packet of convictions.

After hearing the above evidence, the trial court found no probable cause to bind Baham over for trial and suppressed the evidence in the case. In a per curiam, the trial court explained that the police could not positively link the evidence to the defendant.

The primary function of the preliminary examination is to determine if there is probable cause to believe a defendant has committed a crime in order to hold him on his bond obligation for trial. See State v. Holmes, 388 So.2d 722, 724 (La.1980); State v. Collins, 2000-1818, p. 6 (La.App. 4 Cir. 4/11/01), 787 So.2d 391, 395; La.Code CrimProc. art. 296. Probable cause exists when the facts and circumstances are sufficient to justify a man of average caution in the belief that the person has committed a crime. See, e.g., State v. Wilkens, 364 So.2d 934, 936 (La.1978). At a preliminary hearing, the State need not present all its evidence, but only a prima facie case. State v. Lewis, 09-0350, p. 5 (La.App. 4 Cir. 12/16/09), 28 So.3d 548, 552.

Here, Detective Hunter testified that a reliable confidential informant had told him that “Gilbert” was selling narcotics from the Frenchmen Street address and storing drugs at the Marigny Street address. He further testified that he personally observed Baham sell marijuana to the confidential informant from the Frenchmen Street address and return to the Marigny Street address. On the basis of this information, Detective Hunter applied for and received search warrants for the two addresses. Pursuant to the warrants obtained by showing probable cause, the police searched the two addresses at which Baham had been shown to have |4access and found marijuana, a scale which can be used in drug trafficking, a firearm, and ammunition. Furthermore, the State introduced the search warrants and returns for the search of the two addresses, the results of the drug field test on the seized marijuana, and a certified packet of convictions.

At the preliminary examination, the State was not required to prove beyond a reasonable doubt that Baham had committed the crimes with which he has been charged, but to merely adduce prima facie evidence sufficient to justify a man of average caution in the belief that Baham had committed a crime. The State met this low threshold and the trial court erred in finding otherwise.

The matter is remanded to the trial court for further proceedings in accordance with this opinion.


text:
    STATE of Louisiana v. Lawrence Akeem BLADE.
    No. 2013-K-1002.
    Supreme Court of Louisiana.
    May 15, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 303,482; to the Court of Appeal, Third Circuit, No. 12-721.

Not considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    STATE of Louisiana v. Eric MAURER.
    No. 2013-KK-1108.
    Supreme Court of Louisiana.
    May 16, 2013.
   In re Maurer, Eric; — Defendant; Applying Remedial Writs, Parish of Tangipahoa, 21st Div. D, No. 1002974 & 1004029; to the Court of Appeal, First Circuit, No. 2013-KW 0798.

Denied.


text:
    STATE of Louisiana v. Greenville MAHOGANY, et al.
    No. 2013-KK-1099.
    Supreme Court of Louisiana.
    May 16, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 511-729; to the Court of Appeal, Fourth Circuit, No. 2013-K-0256.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Necole KELSON.
    No. 2012-KP-1948.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Kelson, Necole; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, Nos. 09-0688, 09-0861, 09-1115; to the Court of Appeal, Fifth Circuit, No. 12-KH-505.

Denied.


text:
    STATE of Louisiana v. Gregory HARRIS.
    No. 2012-K-2581.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Harris, Gregory; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, Nos. 03-09-0429, 03-09-0429, 03-09-0429, 03-09-0429; to the Court of Appeal, First Circuit, No. 2012 KA 0467.

Denied.


text:
    STATE of Louisiana v. Marc A. FRUGE.
    No. 2012-K-2607.
    Supreme Court of Louisiana.
    May 17, 2013.
   Prior report: La.App., 2012 WL 5387360.

In re Fruge, Marc A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 08-CR-127; to the Court of Appeal, First Circuit, No. 2012 KA 0066.

Denied.


text:
    STATE of Louisiana v. Kendrick MATTIRE.
    No. 2012-K-2620.
    Supreme Court of Louisiana.
    May 17, 2013.
   Prior report: La.App., 2012 WL 4335432.

In re Mattire, Kendrick; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. D, No. 20698; to the Court of Appeal, First Circuit, No. 2011 KA 2390.

Denied.


text:
    STATE of Louisiana v. Timothy THIBODEAUX.
    No. 2012-K-2617.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Thibodeaux, Timothy; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. A, No. 475003; to the Court of Appeal, First Circuit, No. 2012 KA 0146.

Denied.


text:
    STATE of Louisiana v. Wiley Ernest MONCEAUX, Sr.
    No. 2012-KO-2627.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Monceaux Sr., Wiley Ernest;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. O, No. 778-09; to the Court of Appeal, Third Circuit, No. 12-599.

Denied.


text:
    STATE of Louisiana v. Ricky W. COLEMAN.
    No. 2012-K-2649.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Coleman, Ricky W.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lasalle, 28th Judicial District Court Div. O, No. 91917; to the Court of Appeal, Third Circuit, No. 12-373.

Denied.


text:
    STATE of Louisiana v. Jeremiah R. TENO.
    No. 2012-K-2652.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Teno, Jeremiah R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR-2010-701; to the Court of Appeal, Third Circuit, No. 12-357.

Denied.


text:
    STATE of Louisiana v. Michael WIGGINS.
    No. 2012-K-2653.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Wiggins, Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 468-987; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1566.

Denied.


text:
    Stephen J. WILLIAMS v. FERRY HOLDING, LLC.
    No. 2013-C-0825.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Williams, Stephen J.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. A, No. 117240; to the Court of Appeal, First Circuit, No. 2012-C-1073.

Denied.


text:
    Andres GARCIA v. HICO, INC., and Louisiana Home Builder’s Association, SIF Insurance Fund.
    No. 2013-C-0826.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Garcia, Andres; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 7, No. 11-01628; to the Court of Appeal, Fifth Circuit, No. 12-CA-748.

Denied.


text:
    Thelma DARDAR v. TRINITY UNIVERSAL METHODIST PRESCHOOL, et al.
    No. 2013-CC-0834.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Dardar, Thelma; — Plaintiff; Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation District 7, No. 12-07207; to the Court of Appeal, Fourth Circuit, Nos. 2012-CA-0659, 2013-C-0037.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Keith MARTIN.
    No. 2013-KK-0840.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Martin, Keith; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 294,839; to the Court of Appeal, Second Circuit, No. 48,-278-KW.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. David SMITH.
    No. 2013-KK-0855.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Louisiana Department of Children and Family Services; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 377-642; to the Court of Appeal, Fourth Circuit, No. 2013-K-0267.

Denied.


text:
    In re Medical Review Panel of Mae D. BROWN. Patricia Wilson on behalf of Mae D. Brown, Decedent v. Touro Infirmary.
    No. 2013-C-0863.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Touro Infirmary; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, No. 2005-12281 C/W 2007-13069; to the Court of Appeal, Fourth Circuit, No. 2011-CA-1824 C/W 2011-CA-1825.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Charles TAYLOR.
    No. 2013-KK-0942.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Taylor, Charles; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 514-965; to the Court of Appeal, Fourth Circuit, No. 2013-K-0428.

Denied.

WEIMER and HUGHES, JJ., would grant.


text:
    Joseph A. POURCIAU, Jr. v. CONAGRA GROCERY PRODUCTS COMPANY, LLC.
    No. 2013-CC-1000.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Cross, Desiree Pourciau; Plai-sance, Dawn Pourciau; Pourciau, Joan;— Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2011-8321; to the Court of Appeal, Fourth Circuit, No. 2013-C-0235.

Denied.

KNOLL, J., would grant with order.