text:
    CRYSTAL SPRINGS PARTNERS, LTD., Appellant, v. MICHAEL R. BAND, P.A., et al., Appellees.
    No. 3D13-2872.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.

      Keith Diamond, Hollywood; Jay M. Levy, Miami, for appellant.
    Dorta & Ortega, and Omar Ortega, Coral Gables; Jeffrey B. Smith, Ft.Lauder-dale, for appellees.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   SALTER, J.

Crystal Springs Partners, Ltd. (Crystal Springs), a British Virgin Islands corporation, appeals a non-final order entered after final judgment. The order denied Crystal Springs’ emergency motion to quash service of process, vacate, and set aside default final judgment, writ of execution, and post-judgment sale of real property. The essential issue for our determination is whether the trial court properly upheld substituted service of initial process on Crystal Springs under section 48.161(1), Florida Statutes (2012). Concluding that the appellee failed to comply with the strictly-enforced statutory requirements, we reverse and remand the ease with instructions to quash service and to vacate the default final judgment and sale pursuant to that judgment.

Strict compliance with the requirements of section 48.161(1) is mandatory for substituted service to be approved by the trial court and upon appellate review. Monaco v. Nealon, 810 So.2d 1084 (Fla. 4th DCA 2002).

In the present case, the appellee satisfied the first statutory requirement by forwarding a copy of the process to the Secretary of State of Florida. The next statutory requirements were not met, however. Notice of the service on the Secretary of State and a copy of the process itself was required to be sent by registered or certified mail to the defendant “forthwith.” Instead, the appellee/plaintiff sent Crystal Springs a certified letter and the requisite copies forty-two days after the Secretary of State was served (and twenty-nine days after the appellee received correspondence from the Secretary of State confirming such service). That is not “forthwith” as we and other courts have interpreted the term. Parish Mortg. Corp. v. Davis, 251 So.2d 342 (Fla. 3d DCA 1971); Paradis v. Cicero, 167 So.2d 248 (Fla. 2d DCA 1964).

A second deficiency occurred when the plaintiff/appellee, a law firm seeking to collect unpaid fees and costs from its former client, sent the certified mail to an empty condominium owned by Crystal Springs on Fisher Island. The return receipt was returned to counsel for the ap-pellee marked “unclaimed.” The appellee had additional contact information for its former client but, so far as the record discloses, did not attempt to mail the return of service and a copy of the process to Crystal Springs at that address or to email the papers to Crystal Springs at an email successfully used to communicate with its director in the past. The appellee was obligated to make an “honest and conscientious effort,” using knowledge at its command, to provide the defendant with actual notice of the lawsuit. All Mobile Video v. Whitener, 773 So.2d 587, 589-90 (Fla. 1st DCA 2000).

The appellant’s appearance through trial and appellate counsel, verified motions, and express agreement at oral argument assure that, on remand, the parties will address the merits of the appellee’s complaint without further delay. Upon the issuance of our mandate, Crystal Springs shall have twenty days within which to file and serve a responsive pleading to the complaint.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM. MAKAR, J.,

license: Public Domain

text:
    Cory Adam BOULEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1043.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2014.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore and Lauren L. Brud-nicki, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

THOMAS and MARSTILLER, JJ., concur.

MAKAR, J., Concurs with Opinion.

MAKAR, J.,

concurring.

In response to defense counsel’s closing argument that the evidence against his client was thin, the prosecutor in his closing told the jury:

We’re here because this defendant exercised his Constitutional right to a jury trial. It doesn’t mean it’s a close call. It doesn’t mean the evidence is thin. It just means that he’s exercised his Constitutional rights.

This comment was highly improper, denigrating the fundamental right to a jury trial; and it was not a legitimate “invited response” to defense counsel’s closing, there being many obvious ways to counter a claim of “thin” evidence without impugning the exercise of a constitutional freedom. This commentary exceeds that in Bell v. State, 723 So.2d 896, 897 (Fla. 2d DCA 1998), which held harmless a prosecutor’s comment that the “only one reason we’re here” was because the defendant had a right to a jury trial. The statement here — though brief — was more damning, made in the penultimate paragraph of the prosecution’s closing rebuttal argument, leaving defendant without a reply to jurors. Given the lack of an objection, but strong evidence of guilt, the question is whether fundamental error exists. Because defendant admitted to the burglary, but denied he had criminal intent, the evidence of guilt is sufficiently strong, rendering it unlikely the jury would have rendered a different verdict. As Judge Altenbernd noted in his concurrence in Bell, both sides in criminal cases sometimes make improper arguments, but in the end “appellate courts have little practical ability to police misconduct in closing arguments by either prosecutors or defense attorneys.” 723 So.2d at 897. As a consequence, it is up to state attorneys and public defenders — and trial judges— to prevent improper arguments in light of “the seriousness of these trials and the ramifications of appellate court reversals” that can be avoided. Id.


author: VAN NORTWICK, J.

text:
    Janice Y. KING, Appellant, v. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., a Florida corporation, Appellee.
    No. 1D13-2370.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2014.
    Jami M. Kimbrell of Marie A. Mattox, P.A., Tallahassee, for Appellant.
    Terrie L. Didier and Charles T. Wiggins of Beggs & Lane, Pensacola, for Appellee.
   VAN NORTWICK, J.

Janice Y. King appeals a final order granting summary judgment in favor of Blue Cross and Blue Shield of Florida, Inc., appellee. On appeal, appellant does not argue that the trial court erred in granting summary judgment. Rather, she asserts that the trial court erred by denying her motion for leave to amend the pleadings to add a count based on promissory estoppel, which motion was filed as a part of her motion for rehearing. Appellant filed her notice of appeal, however, before the trial court ruled on her motions. Under Florida Rule of Appellate Procedure 9.020(h), appellant is deemed to have abandoned her motion for rehearing, which included the motion for leave to amend, by filing a notice of appeal before the “filing of a signed, written order disposing of all such motions.” See also Jonsson v. Dickinson, 46 So.3d 1016, 1016-17 (Fla. 1st DCA 2010) (holding former husband abandoned post-judgment motion for rehearing when he filed notice of appeal before the trial court ruled on the motion). Even though the trial court denied appellant’s motion after the filing of the notice of appeal, an appellate court is without jurisdiction to review an order rendered after the filing of the notice of appeal. See, e.g., Velickovich v. Ricci, 391 So.2d 258, 259-60 (Fla. 4th DCA 1980). Because Appellant has failed to offer any basis for reversal of the only final order that is presently within this court’s scope of review, the trial court’s summary judgment order must be affirmed. See Moecker v. Antoine, 845 So.2d 904, 910 (Fla. 1st DCA 2003) (“It is the burden of the appealing party to demonstrate a basis in the record for overturning the presumptively correct decision of the trial court.”).

AFFIRMED.

PADOVANO and ROWE, JJ., concur.

      . Florida Rule of Appellate Procedure 9.020(h) provides, in pertinent part:
      An order is rendered when a signed, written order is filed with the clerk of the lower tribunal ... if a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for ... rehearing ... [or] to alter or amend ... the following exceptions apply:
      (1) If such a motion or motions have been filed, the final order shall not be deemed rendered with respect to any claim between the movant and any party against whom relief is sought by the motion or motions until the filing of a signed, written order disposing of all such motions between such parties.
      (3) If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal as to all claims between parties who then have no such motions pending between them.
      In In re Amendments To The Florida Rules Of Civil Procedure, 102 So.3d 451, 480 (Fla.2012), the Florida Supreme Court modified Rule 9.020 by moving the language that had been in subsection (h) into subsection (i); the current subsection (h) addresses the applicability of the Florida Rules of Judicial Administration to appellate proceedings. At the time of the proceedings under review, the decision modifying Rule 9.020 had not yet taken effect.


author: PER CURIAM.

text:
    Maurice ADDERLY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2702.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   PER CURIAM.

We affirm Maurice Adderl/s conviction and sentence without prejudice to him filing a Florida Rule of Criminal Procedure 3.850 motion. See Gore v. State, 784 So.2d 418, 437-38 (Fla.2001) (“A claim of ineffective assistance of counsel may be raised on direct appeal only where the ineffectiveness is apparent on the face of the record.”).


text:
    LAURAMAR I LIMITED PARTNERSHIP, et al., Appellants, v. MEL FISHER MARITIME HERITAGE SOCIETY, INC., Appellee.
    No. 3D12-3038.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Wayne Kruer (Key West), for appellants.
    The Barthet Firm, and Alexander Edward Barthet, Patrick Charles Barthet, and Paul D. Breitner, for appellee.
    Before ROTHENBERG, EMAS, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See § 695.01(1), Fla. Stat. (2012); Mayfield v. First City Bank of Fla., 95 So.Sd 398, 401 (Fla. 1st DCA 2012), review denied, 116 So.3d 1261 (Fla.2013) (“Section 695.01 is a ‘notice’ recording statute, the primary purpose of which is to protect subsequent purchasers (including mortgagees and creditors) against claims arising from prior unrecorded instruments.”); see also Sunshine State Ins. Co. v. Davide, 117 So.3d 1142, 1144 (Fla. 3d DCA 2013) (“When a cause is tried without a jury, the trial judge’s findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.”) (citations omitted).


author: PER CURIAM. EMAS, J.,

text:
    Douglas Eric BICKEL, Appellant, v. UNIVERSITY OF MIAMI and Shelton G. Berg, Appellees.
    No. 3D13-888.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Lipcon, Margulies, Alsina & Winkleman, Michael A. Winkleman and David A. Villa-real, for appellant.
    Isicoff, Ragatz & Koenigsberg, Eric Isi-eoff and Susan V. Warner, for appellees.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed.

ROTHENBERG and LOGUE, JJ., concur.

EMAS, J.,

dissenting.

Because I conclude there are genuine issues of material fact in dispute, I would reverse the final summary judgment. I therefore respectfully dissent.


text:
    Elizabeth BENKOVITCH, Appellant, v. BERGER SINGERMAN, P.A., Appellee.
    Nos. 3D13-988, 3D13-964, 3D13-965.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Ryan D. Gesten and David Vogel, for appellant.
    Berger Singerman and James C. Cunningham, Jr., for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Elizabeth Benkovitch, the defendant in proceedings supplementary, appeals from three orders in these consolidated cases. We affirm the order appealed in case number 3D13-964, denying Ms. Benkovitch’s amended motion to set aside a sheriffs sale and levy.

We dismiss the appeals from the two remaining orders, case numbers 3D13-965 and 3D13-988, as these are non-final, non-appealable orders. Machado v. Foreign Trade, Inc., 544 So.2d 1061 (Fla. 3d DCA 1989); Sverdahl v. Farmers & Merchants Sav. Bank, 582 So.2d 738 (Fla. 4th DCA 1991); Warren v. S.E. Leisure Sys., Inc., 522 So.2d 979 (Fla. 1st DCA 1988).

Affirmed in part, dismissed in part.


text:
    AGRA YACHT CORPORATION, et al., Appellants, v. Pedro DIEBRA, Appellee.
    No. 3D13-1785.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Richard Siegmeister, P.A., and Richard Siegmeister, for appellants.
    Rodriguez Schooley Law Firm, LLC, and Domingo C. Rodriguez, for appellee.
    Before LAGOA, SALTER, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).


text:
    Kevin L. RAMOS, Appellant, v. MIAMI HERALD MEDIA COMPANY, etc., et al., Appellees.
    No. 3D13-1788.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Jose Antonio Llerena, P.A., for appellant.
    Holland & Knight, and Sanford L. Bohr-er and Scott D. Ponce, for appellees Miami Herald Media Company, Diana Moskovitz, and Carol Marbin Miller; Reeder & Reed-er P.A., and L. Martin Reeder, Jr. and C. Bryce Albu (Jupiter), for appellees Palm Beach Newspapers, Inc. and Ana Valdes.
    Before ROTHENBERG, LAGOA and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1108 n. 13 (Fla.2008) (holding that “truth remains an available defense to defendants who can prove that the defamatory implication is true” in a defamation by implication action); see also Woodard v. Sunbeam Television Corp., 616 So.2d 501, 502 (Fla. 3d DCA 1993) (holding that the media has a qualified privilege to report the information they receive from government officials).


author: SHEPHERD, C.J.

text:
    The STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Alexandra R. MELENDEZ, Respondent.
    No. 3D13-3142.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Stephen D. Hurm, General Counsel, and Natalia Costea, Assistant General Counsel, for petitioner.
    Armando Alfonso (Fort Lauderdale), for respondent.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   SHEPHERD, C.J.

The State of Florida, Department of Highway Safety and Motor Vehicles, petitions this court for a writ of prohibition to prevent the circuit court, acting in its appellate capacity, from exercising jurisdiction over an untimely petition for writ of certiorari filed in that court by Alexandra R. Melendez. Ms. Melendez failed to file a response to the prohibition petition, despite our order to do so. Upon consideration, we grant the petition for prohibition for the reasons expressed in Judge Monica Gordo’s dissent to the panel opinion denying dismissal, which we adopt in haec ver-ba:

Florida Rule of Appellate Procedure requires that a petition for writ of certio-rari to review the Department’s final order be filed within SO days of the date of rendition of the order. See Fla. R.App.P.[9].100(c)(l). Here, a hearing was conducted and the Hearing Officer affirmed the order of suspension of the driving privilege of Petitioner on January 15, 2013. The Department’s Order expressly advised Petitioner of her right to appeal the Department’s decision “by filing a petition for writ of certiorari to the circuit court within 30 calendar days of [the] order by following the procedure specified in § 322.31, Florida Statutes.”- Petitioner did not file her Petition for Writ of Certiorari until March 1, 2013 — forty-five (45) calendar days after the Department’s order was rendered; and, fifteen days beyond the deadline established by Florida Rule of Appellate Procedure 9.100(c)(1) for such an appeal. The 30-day filing deadline established by Rule 9.100(c) is jurisdictional in nature and not merely a matter of procedure. See Flinchbaugh v. Burton, 312 So.2d 827 (Fla. 4th DCA 1975); Department of Highway Safety and Motor Vehicles v. Joannou, 353 So.2d 164 (Fla. 3d DCA 1977); see Serifsoy v. City of Lake Worth, 789 So.2d 1173, 1175 (Fla. 4th DCA 2001). As such, an untimely Petition divests this court of jurisdiction over the untimely filed Petition and it should be dismissed. See Joannou, 353 So.2d at 164; Capone v. Florida Bd. of Regents, 774 So.2d 825, 827 (Fla. 4th DCA 2000) (reaffirming that the Fourth District Court of Appeal’s discretionary and convenience practice of accepting pleadings as timely filed if filed by 9:00 in the morning the day after pleading was due, was never intended to apply to jurisdictional pleadings such as notices of appeal and petitions for writs of certiorari. “The previous-day filing procedure applies only to non-jurisdictional papers.”), see also Flinchbaugh, 312 So.2d at 827.

Accordingly, we grant the petition, but withhold issuance of the writ, secure in our belief that the circuit court appellate division will dismiss Ms. Melendez’ petition for writ of certiorari.


author: WOLF, J.

text:
    Roy Joseph BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4134.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2014.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal Appeals Tallahassee, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his conviction for child neglect without causing great bodily harm in violation of section 827.03(2)(c), Florida Statutes (2011). He argues the State failed to present a prima facia case, and thus the trial court erred in denying his motion for judgment of acquittal. We agree and reverse.

Facts

The State charged appellant with one count of aggravated child abuse and one count of child neglect causing great bodily harm stemming from an incident involving a fifteen-month-old girl named A.B. § 827.03(2), (3)(b), Fla. Stat. (2011).

At trial, the State presented evidence that appellant’s girlfriend left him to babysit her four children, one of whom was A.B., while she went to pay her home phone bill and have her phone reconnected. While she was gone, her ten-year-old son called her from a neighbor’s phone and stated, “hurry up and get home, [appellant] says [A.B.] fell out of the crib.” The mother returned home and found the child “unresponsive,” with her head slumped down, and her breathing was “off.” The mother called 911, and the child was taken to the hospital. A police officer responded to the hospital as a matter of procedure, and the first responders indicated that it looked as if it had been an accident. A.B.’s doctor then came and told the officer, “we’re good, you can leave.” However, doctors later performed more tests and discovered that A.B. had extensive internal injuries, including bleeding on the brain and behind the eyes and liver damage.

A nurse practitioner testified these internal injuries were caused by abuse in the form of violent shaking and blunt force trauma, and could not have been caused by A.B. falling from her crib. She also testified these injuries would not have been apparent to the first responders based only on a visual inspection of A.B. However, she stated these internal injuries could cause symptoms including irritability, changes in behavior, loss of consciousness, or need for lifesaving measures such as CPR. She stated the abuse that caused A.B.’s injuries occurred sometime during the twenty-four hours prior to A.B.’s admittance to the hospital.

Appellant testified that he asked the ten-year-old boy to call both 911 and the mother. He testified the mother arrived within 10 minutes of the call, and because the paramedics had not yet arrived, she also called 911. He denied abusing the child, and he also presented evidence that implicated the mother in the abuse.

The State’s theory of the case was that appellant committed aggravated child abuse by causing A.B.’s internal injuries, and he committed child neglect by instructing the 10-year-old boy to call the mother rather than 911 when he realized A.B. was in respiratory distress. Appellant moved for judgment of acquittal, arguing there was no evidence of either abuse or neglect. The trial court denied the motion. The jury acquitted appellant of the count involving aggravated child abuse and, as to the other count, convicted him of the lesser-included offense of child neglect not causing great bodily harm.

On appeal, he renews his argument that there was insufficient evidence of child neglect. We agree.

Child Neglect

We review an order on a motion for judgment of acquittal de novo. Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001). In moving for judgment of acquittal, a defendant admits (1) facts stated in evidence and (2) conclusions favorable to the adverse party. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The legal test for considering a motion for judgment of acquittal on appeal is “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981). “A judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party.” Criner v. State, 943 So.2d 224, 225 (Fla. 1st DCA 2006) (citing Lynch, 293 So.2d at 45).

Section 827.03 defines “[n]eglect of a child” as:

1. A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child; ....
Neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.

§ 827.03(3)(a), Fla. Stat. (2011) (renumbered § 827.03(l)(e) (2012)).

Child neglect without causing great bodily harm is prohibited by section 827.03(3)(c), which states:

(c) A person who willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 827.03(3)(c), Fla. Stat. (2011) (renumbered § 827.03(2)(d) (2012)).

This statute does not define “culpable negligence” or “willfully.” However, the standard jury instruction for child neglect, which was given here, defines culpable negligence and distinguishes it from a mere failure to use ordinary care:

I will now define what is meant by the term “culpable negligence”: Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.

Fla. Std. Jury Instr. (Crim.) 16.5.

Similarly this court has defined “culpable negligence” as “that degree of negligence that is so egregious, and flagrant, it would support a charge of manslaughter in case of death.” Jones v. State, 912 So.2d 686, 688 (Fla. 1st DCA 2005) (citations omitted).

The Second District defined “willfully” in the context of child neglect as meaning the defendant “acted voluntarily and consciously, not accidentally.” Arnold v. State, 755 So.2d 796, 798 (Fla. 2d DCA 2000) (citing Black’s Law Dictionary 1773 (4th ed. 1968)). The Arnold court also discussed the legislative history of the offense of child neglect and the level of negligence the State must prove:

By its language, the legislature has demanded that the State prove more than mere negligence to criminalize child neglect. And the legislature has required that the defendant’s acts or omissions create a “reasonably expected” potential for the child to suffer, at a minimum, serious injury. In establishing these elements for the crime of third degree felony child neglect, the legislature has responded to a series of decisions from the Florida Supreme Court declaring unconstitutional prior versions of this statute. The primary infirmity of the 1975 version of the statute was that it criminalized simple negligence and punished those with no intent to do wrong. See § 827.05, Fla. Stat. (1975); State v. Winters, 346 So.2d 991 (Fla.1977). The 1991 version of section 827.05 had added language addressing the financial ability of the caregiver and the degree of impairment or risk to the child, but those elements did not overcome the lack of scienter. See State v. Mincey, 672 So.2d 524 (Fla.1996); State v. Ayers, 665 So.2d 296 (Fla. 2d DCA 1995). The latest version of the statute, under which Mr. Arnold was convicted, has attempted to remedy that shortcoming by adding the “willfully or by culpable negligence” language and has further attempted to define what actions or omissions constitute “neglect.”

Id. at 797-98. Arnold explained this legislative history “emphasize[s] how difficult it has been for the legislature to define this crime.” Id. at 798. The resulting precedent has established that “only the most egregious conduct, done either willfully or with criminal culpability, should be criminalized.” Id.

Appellant argues here, viewing the evidence in a light most favorable to the State, the State failed to present a prima facia case of child neglect. We agree.

The State’s theory of the case, both below and on appeal, was that appellant committed child neglect by asking the ten-year-old boy to call A.B.’s mother rather than 911 when he realized the child was in respiratory distress. The State asserts that the mother’s errand was on the other side of town, which means she must have been far away when she received the call, and thus it must have taken her a long time to return. The State argues the fact that appellant waited with the child during this lengthy period of time without calling 911 constituted child neglect. However, the State failed to present any evidence to support these theories. The State presented no evidence establishing exactly how far away the phone store was, how long the mother had been gone, where she was when she received the call, or how long it took her to return. The only evidence establishing a timeline was appellant’s testimony that the mother returned home within 10 minutes of the call.

The State argues this case is analogous to Moore v. State, 790 So.2d 489, 491 (Fla. 5th DCA 2001), in which a father admitted he allowed his baby to fall head-first into the side of the bathtub, and that the baby was lethargic during the two days that followed, but he failed to seek medical attention. The baby died, and doctors later determined the child had suffered a skull fracture. Id. at 491-92. The Fifth District found there was sufficient evidence to sustain a conviction for child ne-gleet, reasoning “[t]o allow the baby to fall in a manner which produced a skull fracture, to recognize that the baby was noticeably inactive in the following two days, and to refrain from seeking medical counsel during this subsequent period, could constitute culpably negligent conduct which caused great bodily harm.” Id. at 492.

The case at hand is clearly distinguishable. Appellant did not wait two days to seek medical counsel for the child. He called the child’s mother when he realized she was in distress, and the mother returned home to evaluate the child and called 911. The only evidence in the record regarding a timeline was that the mother returned home within 10 minutes of the call.

Further, the State failed to provide evidence that appellant’s choice to call the mother rather than 911 was “gross and flagrant” negligence that was “committed with an utter disregard for the safety of others” such that he “must have known, or reasonably should have known, was likely to cause death or great bodily harm,” as required to prove culpable negligence. Fla. Std. Jury Instr. (Crim.) 16.5. The mother and appellant both testified that the girl’s breathing was “off,” but that she was breathing. The State emphasizes that the child had serious internal injuries. However, the jury absolved appellant of responsibility for those injuries when it acquitted him of aggravated child abuse. There was no other evidence presented that appellant should have known her injuries were so significant that any delay in calling 911 was likely to cause her death or great bodily harm. The State’s own witness testified that the fall from the crib could not have caused such serious injuries, and the severity of the injuries was not initially apparent to the first responders or the doctors. While appellant’s choice to seek assistance by calling the child’s mother rather than 911 may have been a failure to use ordinary care, it did not rise to the level of willful or culpable negligence under the facts as presented in this case. Therefore, we reverse.

REVERSED.

LEWIS, C.J., and ROBERTS, J„ concur.

      . Although appellant testified he asked the boy to call 911, apparently the boy did not. Also, an investigating officer testified that appellant said he asked the boy to call the mother, but appellant did not mention asking him to call 911.


text:
    Charles Litton MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2626.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2014.
    Charles Litton Morris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The second amended petition seeking a belated appeal of the judgment and sentence rendered on March 28, 2013, in Es-cambia County Circuit Court case number 2012-CF-003094, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for services of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

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


author: BENTON, J.

text:
    S.B., father of A.R.B., H.M.B., A.N.B., minor children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-5337.
    District Court of Appeal of Florida, First District.
    March 3, 2014.
    Doris Rompf, Jacksonville and Meredith A. Eng, Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Jacksonville, for Appellee; Kelley Schaef-fer, Appellate Counsel, Guardian ad Litem Program, Sanford.
   BENTON, J.

The father of three daughters, S.B. contends that the Department of Children and Families (DCF) failed to adduce competent and substantial evidence, which a reasonable fact finder could find clear and convincing proof, that his continued relationship with his children would be harmful to them, within the meaning of section 39.806(l)(d)3., Fla. Stat. (2013). DCF pleaded no other ground for termination in its petition for termination of parental rights (TPR). We agree that DCF failed to meet its burden, and reverse with directions to dismiss the petition.

Prior to his incarceration, S.B. worked as a plumber. He supported his three daughters and their mother, their half-brother (to whom he had no biological connection), and his own mother, the children’s grandmother. Dr. Bloomfield testified for DCF that S.B. was the main provider for his family, and the girls remember his working “long hours.” DCF did not allege appellant was ever violent, or that he endangered the children in any way. DCF did not allege that he neglected his children, abandoned them, or ever failed to provide shelter or food for them while he lived with them. DCF presented no evidence of any failure to provide for the children’s developmental, cognitive, psychological, or physical needs, until he was imprisoned.

Convicted of driving under the influence of alcohol a fourth time, S.B. began his prison sentence in February of 2012. Three months later, his daughters (now three, six, and seven) were taken from their mother (whose parental rights were eventually terminated by default for her failure to appear at a hearing in these proceedings). Since DCF removed the children, they (and their eight-year-old half-brother) have been placed in separate foster homes, and, during the sixteen months they spent in foster care before the trial, had been moved several times.

On August 14, 2013, DCF petitioned for involuntary termination of parental rights pursuant to section 39.806(l)(d)3., alleging that a continued parental relationship with the father would be harmful to the children because his “extensive criminal history resulting in his incarceration ... has directly impacted the parent-child relationship with each of his children” and because he has failed to maintain a meaningful relationship with the children while incarcerated. The “extensive criminal history” consists entirely of driving offenses. S.B. was convicted of three previous DUIs, one in 2000, one in 2003, and one in 2004. Since the birth of his first child in 2006, however, he had not been convicted of driving under the influence until 2012, shortly after his mother died.

DCF alleges the children will suffer harm, unless their father’s parental rights are terminated, in that they will languish in the foster care system until their father’s release from prison, and thus be “denied permanency.” According to Dr. Bloomfield, the psychologist who testified for DCF, the two older children are in their formative years and ought to be developing bonds and “attaching out to the community, with teachers and the like, and developing a sense of who they are,” and it is important that they have as few disruptions as possible in the next few years. Both Dr. Bloomfield and the family service counselor testified that, if parental rights were terminated, the children were young and resilient enough to form new bonds with parental substitutes. Dr. Bloomfield also testified that the children could form new bonds while maintaining their bonds with their father.

DCF presented evidence of the father’s relationship with his children, through a family counselor and Dr. Bloomfield, an expert who had never met S.B. or observed him interacting with his children. The evidence showed that he currently has a real relationship with the children and has been at pains to maintain it (although the youngest child has no memories of him because she was only one year old when he was sent to prison). While incarcerated, S.B. attended substance abuse and parenting classes and expects to have approximately ten certificates when he is released. According to DCF’s own evidence, S.B. had written his children fifty letters in a sixteen-month-period, not including birthday and holiday cards.

Dr. Bloomfield, the psychologist, testified to a “strong bond” between appellant and the oldest child. She reported that the oldest child said “it was better” when she lived with her father and talked about their visits to the park, and how S.B. let her play on his iPad; and added that S.B. was nice to her, and that she still considered her former home with him her “real home.” She said she was sad because she can no longer see her family. As for the second child, Dr. Bloomfield stated the bond between them was ebbing due to her fading memories of her father. But she said that both older girls “talked about how their mother and father took care of them together” and how their grandmother cooked for them. They enjoyed receiving letters and “wonderful birthday cards” from him. Although the children also remember their parents’ yelling at each other, and being spanked by their father, DCF does not contend that they suffered any harm as a result that would justify termination of parental rights.

The sole ground on which DCF sought to terminate S.B.’s parental rights is section 39.806(l)(d)3., Florida Statutes (2013), which provides:

(d) When the parent of a child is incarcerated and either:
3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child. When determining harm, the court shall consider the following factors:
a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.
e. Any other factor the court deems relevant.

As the guardian ad litem explains in her brief, the current version of the statute, applicable in S.B.’s case, was the result of an amendment in 2012. Ch. 2012-178, § 15, at 25-26, Laws of Fla.

DCF had the burden to prove the grounds for terminating S.B.’s parental rights it alleged in its petition for termination of parental rights by clear and convincing evidence. § 39.809(1), Fla. Stat. (2013). We review the circuit court’s decision to terminate parental rights for competent and substantial evidence which a reasonable finder of fact could deem clear and convincing support for the necessary findings. See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003).

S.B.’s eldest child was seven at the time of trial. Under the old statute, appellant’s four-year sentence (he is to be released in the summer of 2015), would not have been deemed a substantial portion of his children’s minority. See B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1054 (Fla.2004) (holding that a father’s incarceration which equaled 28.6 percent of the child’s remaining minority was not substantial); In re S.H., 992 So.2d 316, 317-18 (Fla. 2d DCA 2008) (holding a father’s remaining six-year incarceration was not a substantial portion of the minority of children who were two, three, and four years old); In re E.I.F., 872 So.2d 924, 928 (Fla. 2d DCA 2004) (holding a father’s eight-year sentence was not a substantial portion of time for a child who was eight months old); In re A.W., 816 So.2d 1261, 1264 (Fla. 2d DCA 2002) (holding that 54 months remaining in the father’s sentence was not a substantial portion of a four-year-old or one-year-old child’s minorities); W.W. v. Dep’t of Children & Families, 811 So.2d 791, 792 (Fla. 4th DCA 2002) (holding that 54 months is not a substantial portion of eighteen years). With S.B. scheduled to be released some fifteen months hence, DCF could not have terminated parental rights under the prior version of section 39.806(l)(d)3.

But DCF argues that the 2012 amendments justify termination of parental rights. “[A] trial court is precluded from terminating parental rights on the statutory ground that continuing the parental relationship with the incarcerated parent would be harmful to the child under section 39.806(l)(d)(3) where no evidence regarding the impact of continuing the parent-child relationship is offered.” In re N.S., 898 So.2d 1194, 1198 (Fla. 2d DCA 2005). Proof regarding factors (a) through (c) does not support termination of parental rights. All the children’s ages should be considered, given the objective of keeping them together. As for factor (d), under the amended statute, as under its predecessor, criminal history alone is not sufficient for termination. See In re E.I.F., 872 So.2d at 926-27 (holding that despite the father’s past history of drug use, suicide threats, and imprisonment for aggravated assault of a law enforcement officer, there was not competent and substantial evidence that a continued relationship between him and his children was harmful because he had had treatment while in prison and professed that he had turned over a new leaf); W.W., 811 So.2d at 793 (“Although appellant has had difficulty living within the law [the father was convicted for arson, burglary, and a lewd and lascivious act with a violation of probation], he did live with the family and provide for the children at times when he was not incarcerated.”)- The driving offenses S.B. committed are by no means the most egregious crimes parents have committed. Parental rights are a “fundamental liberty interest” that cannot be terminated based on incarceration alone. In re J.B., 923 So.2d 1201, 1205-06 (Fla. 2d DCA 2006).

Finally, factor (e) allows the circuit court to consider “[a]ny other factor the court deems relevant.” § 39.806(l)(d)3.e., Fla. Stat. (2013). The order under review concludes that the children “should not have to wait two to three years for the possibility of achieving permanency” with the father upon his release, “languishing]” in foster care until then. But there was no evidence that the father could not take care of his daughters upon his release from prison, or of any other realistic prospect for permanency.

DCF was unable to place the children together during the sixteen months they had spent in foster care, because, witnesses testified, nobody was willing to take in all four children. When the case was tried, the two older girls were in one foster home and their sister was in another. DCF denied placement with the children’s great-grandmother, a great-uncle, and an uncle in Georgia (all on the father’s side) in part because, while these relatives were willing to take the three girls, they did not want to take on their half-brother, and DCF wished to keep all four children together. The family counselor testified it was very possible that they will continue to move from placement to placement, and no DCF witness testified adoption was a possibility for the children. A1 in all, their father may well be their best chance of “permanency.”

Athough it “is the province of the fact-finder to synthesize the evidence,” and no one factor is determinative, the findings in the present ease merely underscore the lack of competent and substantial evidence to support termination. See J.S. v. Fla. Dep’t of Children & Families, 18 So.3d 1170, 1179 (Fla. 1st DCA 2009). There was no testimony that reuniting these children with their father would be harmful to them. In fact, Dr. Bloomfield, DCF’s own witness, testified that severing S.B.’s parental rights would cause the children “pain and mourning” and that they would need therapy to get through the process. Cf. R.M. v. Dep’t of Children & Families, 847 So.2d 1103, 1104 (Fla. 4th DCA 2003) (parental rights terminated where two separate therapists for two children testified that reunification with the father would be “extremely detrimental to the children’s mental health,” and one therapist said it would “ ‘completely destroy” the child).

Athough Dr. Bloomfield expressed a desire that the children “move forward in their lives with new families,” the family counselor admitted that realistically the children had only temporary foster care to look forward to, with “the idea of permanency some time down the road,” it being “very possible” that they will be shuffled from placement to placement indefinitely if S.B.’s parental rights are terminated. His release may occur as early as July 14, 2015. DCF has failed to prove the only harm it sought to prove — that a continued relationship with the father would jeopardize the children’s possibility of permanency. The girls do have a “permanent” adult in their lives who regularly sends letters and cards that may help them deal with the downside of foster care until they are reunited with their father who, the evidence showed, has retained his plumber’s license.

Reversed.

PADOVANO and ROBERTS, JJ., concur.

      . The children will also presumably still be young and resilient enough to renew their bonds with their father in the summer of 2015 when he is to be released from prison.

      . "The bill amends current law to give direction to the court to consider certain factors regarding terminating parental rights of an incarcerated parent [to] help avoid children languishing in foster care when their parent is incarcerated.” CS for CS for HB 803 (2012) Bill Analysis 1 (April 30, 2012). The amendment had the result of shifting the analysis away from solely quantitative, formulaic calculations of what portion of a child's minority a parent’s incarceration would last, see e.g., In re A.W., 816 So.2d 1261, 1264 (Fla. 2d DCA 2002) (concluding "the trial court may consider only the length of time the parent will be incarcerated in determining whether that period constitutes a ‘substantial portion of the period of time’ before the child reaches age eighteen”), to a more qualitative analysis. The Legislature changed the word "substantial” in section 39.806(l)(d)l. to “significant” in describing the time of a parent’s incarceration. Ch. 2012-178, § 15, at 25, Laws of Fla.


text:
    Angie M. ALMONOR, Appellant, v. JPMORGAN CHASE BANK, N.A., Appellee.
    No. 3D12-2795.
    District Court of Appeal of Florida, Third District.
    March 5, 2014.
    Angie M. Almonor, in proper person.
    Wargo & French, LLP, and Joseph D. Wargo and Susan Capote, for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Angie M. Almonor (“Almonor”) appeals from an October 16, 2012, order authorizing a writ of possession in favor of Federal National Mortgage Association (“FNMA”), predecessor to the appellee, JPMorgan Chase Bank, N.A. (“Chase”).

After FNMA obtained a judgment of foreclosure and certifícate of title, it sought a writ of possession for the condominium unit in which Almonor was, and apparently still is, a tenant. Almonor objected to the issuance of the writ, asserting that FNMA failed to comply with the federal Protecting Tenants at Foreclosure Act of 2009 (the “Act”) in seeking the writ. Specifically, Almonor claimed that she had a bona fide two-year lease for the unit, which commenced on February 1, 2011, and terminated on January 31, 2013, and that under the Act, FNMA was required to honor her lease until the end of its term. Over Almonor’s objection, the trial court issued the order on appeal, directing the issuance of a writ of possession.

Chase concedes that the order was entered in error for the sole reason that it failed to permit Almonor, as a bona fide tenant under the Act, to occupy the unit until the end of the lease term on January 31, 2013. On that basis, we agree. Accordingly, because the order failed to state that the writ was not to take effect until January 31, 2013, we reverse the order authorizing a writ of possession.

Reversed and remanded.

      . Pub.L. No. 111-22, § 702, 123 Stat. 1632, 1660-61 (2009) (codified as amended at 12 U.S.C. § 5220 note (2010)). The Act requires the immediate successor-in-interest to a foreclosed property to provide a bona fide tenant residing in the property with notice to vacate at least 90 days prior to date that the successor-in-interest seeks to have the tenant vacate the property. The Act also requires that the successor-in-interest allow a bona fide tenant to occupy the property until the end of the lease term, unless the successor-in-interest will occupy the property as a residence. See John R. Higgitt, Annotation, Construction and Application of Protecting Tenants at Foreclosure Act of 2009, Pub.L. 111-22, 123 Stat. 1660 (Note to 12 U.S.C.A. § 5220), 65 A.L.R. Fed.2d 217 (2012).

      . As previously noted, it appears that Almo-nor still resides in the condominium unit.


author: JOHNSON, Chief Justice,

text:
    Oscar BERTHELOT v. Richard STALDER as Secretary of the Department of Corrections.
    No. 2013-C-2290.
    Supreme Court of Louisiana.
    Jan. 10, 2014.
   JOHNSON, Chief Justice,

would grant the writ application.

hi find the lower courts erred in excluding plaintiffs expert from testifying regarding the appropriate standard of care for treatment of a diabetic foot. The lower courts applied the locality rule in La. R.S. 9:2794(A) to exclude the testimony of Dr. Willard Noyes, a Pennsylvania vascular surgeon.

This court has long held that a specialist with knowledge of the requisite subject matter was qualified to testify regarding the standard of care in a general practitioner’s locale. See Leyva v. Iberia General Hospital, 94-0795 (La.10/17/94), 643 So.2d 1236, 1239; McLean v. Hunter, 495 So.2d 1298, 1302 (La.1986). Dr. Noyes specializes in vascular surgery. Moreover, Dr. Noyes testified that he worked for twelve years as a general practitioner with actual experience working in prisons. His surgeries have included amputations above and below the knee due to diabetic foot problems. Therefore, in my view, Dr. Noyes was 12adequately qualified to testify for the plaintiff regarding the standard of care applicable to treatment of diabetic foot complications.

Moreover, this court has also recognized that where there is a uniform standard of practice, an expert having knowledge of such standard is qualified to testify, and that the testifying expert in this circumstance is not constrained by the need to have practiced in a similar community or locale and under similar circumstances. See Leyva, 643 So.2d at 1239; Piazza v. Behrman Chiropractic Clinic, Inc., 601 So.2d 1378, 1381 (La.1992). As Justice Lemmon recognized in his concurrence in Piazza, “the locality rule in medical malpractice cases is appropriately applied when there may be an acceptably different standard of care or skill for the particular treatment in the locality in which the health care provider practices, such as when the situation dictates the use of sophisticated equipment not available in the health care provider’s locale.” In this case, Mr. Berthelot suffered from diabetic neuropathy, resulting in an infection in his foot. I find plaintiff sufficiently established a uniform standard of care or skill for treatment of this medical condition. Such standard of treatment applies to all members of the medical profession, and the general practitioners who treated Mr. Berthelot in prison are no exception. Thus, I find application of a different local standard is not warranted by the circumstances of the locality.

Accordingly, I would grant the plaintiffs writ application, finding the lower courts erred in their blanket application of the locality rule to disqualify Dr. Noyes from testifying. To require that plaintiffs expert practice in similar communities and under similar circumstances by being experienced in general medicine in the Louisiana prison system was error and prejudicial to the plaintiff, and is not supported by the jurisprudence of this state.

      . La. R.S 9:2794(A) provides, in pertinent part:
      A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq. ... the plaintiff shall have the burden of proving:
      (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.


text:
    In re Anthony HOLLIS.
    No. 2013-B-2667.
    Supreme Court of Louisiana.
    Feb. 7, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|-i This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Anthony Hollis, an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1985. He was admonished in 1994 and 1998 for failing to cooperate with the ODC. In 1998, this court suspended respondent from the practice of law for a period of one year based on his failure to provide competent and diligent representation to clients, failure to communicate with clients, failure to account for or return unearned fees, failure to cooperate in a disciplinary investigation, and failure to comply with a subpoena issued by a tribunal. In re: Hollis, 98-0444 (La.6/19/98), 714 So.2d 693 (“Hollis I”). In 2001, we considered a disciplinary proceeding involving respondent’s failure to provide competent and diligent representation to clients, failure to communicate with clients, failure to account for or return unearned fees, lack of candor, unauthorized practice of law, and failure to cooperate in a disciplinary investigation, among other misconduct. As much of the misconduct occurred within the same time frame as the misconduct hat issue in Hollis I, we imposed a fully deferred one-year suspension so as not to require respondent to serve an additional period of actual suspension. In re: Hollis, 01-2127 (La.10/17/01), 797 So.2d 663 (“Hollis II”).

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed four separate sets of formal charges against respondent, consisting of a total of five counts of misconduct. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(8). No formal hearing was held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration in any of the matters.

The formal charges were considered by separate hearing committees, then consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing all four sets of formal charges.

ll-DB-045

Count I — The Anderson Matter

In December 2002, Corine Anderson retained respondent to represent her in a civil action against a finance company. Respondent accepted $2,100 in fees but | sthen failed to complete the work for which he was hired. He also refused to meet with Ms. Anderson or return her telephone calls. Due to respondent’s inaction, Ms. Anderson’s case was deemed abandoned.

In May 2010, Ms. Anderson filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena compelling him to appear on August 12, 2010. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II — The Rambo Matter

In November 2009, Dennis Rambo, Jr. paid respondent $2,500 to annul an inter vivos donation. When respondent failed to return his telephone calls, Mr. Rambo attempted to contact him via certified letter. All meetings that had been scheduled between them were subsequently cancelled by respondent, with no notice to Mr. Rambo. Respondent failed to complete the work for which he was hired and never produced any evidence to support his representations to Mr. Rambo that he was working on the matter. He also refused to refund the fee Mr. Rambo paid.

In December 2010, Mr. Rambo filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena compelling him to appear on March 31, 2011. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

I/The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, and 8.1(c).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in ll-DB-045, the hearing committee determined the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. The committee also determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent knowingly, if not intentionally, violated duties owed to his clients, the legal system, and the legal profession. The committee found the following aggravating factors are present: a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1985). The committee did not find any mitigating factors present.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for eighteen months. Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

jll-DB-108

In 1995, Darren Sloan retained respondent to represent him in a criminal matter in which he was charged with second degree murder. After he was convicted, Mr. Sloan sought review by filing a petition for post-conviction relief and a writ of habeas corpus, largely based upon respondent’s alleged failure to communicate a plea deal that was offered prior to trial. Though the writ of habeas corpus was ultimately denied, several issues arose concerning respondent’s eligibility and handling of Mr. Sloan’s defense. In his testimony at the hearing on |sMr. Sloan’s writ, respondent acknowledged that he appeared in court with Mr. Sloan on October 6, 1995, at a time when he was ineligible to practice law. In addition, Magistrate Judge Mark Hornsby determined that more probably than not, respondent had not communicated the plea offer to Mr. Sloan. Judge Hornsby also noted that the state appellate court had held respondent in contempt and fined him $100 plus costs after he failed to file an appellate brief on Mr. Sloan’s behalf, despite having been granted an extension of time and a second deadline that included a warning of potential citation for contempt.

In August 2010, the ODC’s screening counsel directed respondent to return Mr. Sloan’s file to him. In September 2010, Mr. Sloan advised the ODC that he had not heard from respondent. Respondent’s failure to respond necessitated the issuance of a subpoena to obtain his sworn statement, which was taken on January 4, 2011.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3, 1.4, 5.5 (engaging in the unauthorized practice of law), 8.1(c), and 8.4(a) (violation of the Rules of Professional Conduct).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in ll-DB-108, the hearing committee determined the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. The | f,committee also determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent violated duties owed to his clients, the public, and the legal profession. The facts suggest that his incompetence, lack of diligence, and failure to communicate were knowing. The misrepresentations he made to his clients and his lack of candor with the court were intentional acts. His failure to cooperate in the disciplinary investigation was knowing. His failure to perform the services for which he was hired jeopardized Mr. Sloan’s freedom.

The committee found the following aggravating factors are present: a prior disciplinary record, multiple offenses, and substantial experience in the practice of law. The committee made no finding concerning mitigating factors.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for two years. Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

12-DB-068

In February 2011, Kimberly and Timothy Smith retained respondent to represent them in a child custody matter, for which they paid him a total of $3,000. After he officially enrolled as counsel, respondent failed to appear for a March 2011 hearing in the matter. Thereafter, the Smiths were unable to contact respondent. In May 2011, they appeared at his office to find him moving, at which time they instructed him to file the proper pleadings in order to move the case forward. In August 2011, when they discovered that no action had been taken, they contacted respondent again and provided him with the same instructions. Mr. Smith indicated that aside from enrolling as counsel, respondent has never filed any motions or pleadings in the matter. Mr. Smith also indicated that in December 2011, respondent issued them a check in the amount of $1,850.

|7In October 2011, the Smiths filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena compelling him to appear on April 10, 2012. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, and 8.1(c).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in 12-DB-068, the hearing committee determined the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. The committee also determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent acted knowingly, if not intentionally. The committee found the following aggravating factors are present: a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The committee did not find any mitigating factors present.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for two years. Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

12-DB-078

In February 2009, Eric Ardison retained respondent to represent him in criminal matters, paying him $5,000. Mr. Ardison has since made several requests |sto respondent seeking the return of his file, to no avail. Mr. Ardison indicated that this failure is causing him irreparable harm for purposes of future litigation.

In March 2012, the ODC’s screening counsel directed respondent to return Mr. Ardison’s file to him. In April 2012, Mr. Ardison advised the ODC that he had not heard from respondent. Respondent’s failure to respond necessitated the issuance of a subpoena compelling him to appear on July 2, 2012. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.16 (obligations upon termination of the representation) and 8.1(c).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in 12-DB-078, the hearing committee determined the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. The committee also determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent acted negligently, if not knowingly, in failing to communicate with Mr. Ardison and in failing to return his file. He acted intentionally in failing to cooperate with the ODC. The committee found the following aggravating factors are present: a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The committee did not find any mitigating factors present.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for two years. Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

J¿1-DB-0I5 & ll-DB-108 & 12-DB-068 & 12-DB-078

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board determined the factual findings of the hearing committees are supported by the deemed admitted factual allegations and/or by the evidence submitted in support of the allegations. The board also determined the committees correctly applied the Rules of Professional Conduct.

The board determined respondent knowingly, if not intentionally, violated duties owed to his clients and the legal profession. He caused harm to his clients by failing to pursue their legal matters, failing to communicate with them, and failing to return their files upon demand. He caused harm to the legal profession by failing to cooperate with the ODC’s investigation of these matters, which caused the ODC to expend additional resources. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is suspension.

The board found the following aggravating factors are supported by the record: a prior disciplinary record, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law (admitted 1985). The board found that the only mitigating factor present is delay in the disciplinary proceeding (as to the substantive misconduct in ll-DB-108 only).

Turning to the issue of an appropriate sanction, the board determined that because respondent’s substantive misconduct in ll-DB-108 occurred during the same time period (between 1995 and 1996) as the misconduct subject of Hollis I and Hollis II, the approach used in Chatelain is applicable to the substantive misconduct in that matter. The board also determined that the substantive |inmisconduct in ll-DB-108 was adequately addressed by the sanction imposed in Hollis I and Hollis II, while the failure to cooperate violation should be considered separately, having occurred long after the substantive misconduct.

Considering the remaining multiple instances of misconduct, the board recommended respondent be disbarred. The board also recommended that respondent pay restitution to Ms. Anderson, Mr. Rambo, and Mr. and Mrs. Smith. The board further recommended he be assessed with all costs and expenses of these proceedings.

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

DISCUSSION

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

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

The deemed admitted facts in this consolidated matter indicate that respondent failed to provide competent representation to his clients, neglected legal matters, failed to communicate with clients, engaged in the unauthorized practice of law, abandoned his law practice without protecting the interests of his clients, and failed to cooperate with the ODC in its investigations. Based on these facts, respondent has violated the Rules of Professional Conduct as charged.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent violated duties owed to his clients and the legal profession. His misconduct was at least knowing, if not intentional, and caused harm to his clients and to the disciplinary system. The ABA’s Standards for Imposing Lawyer Sanctions establish suspension as the baseline sanction. The record supports the aggravating and mitigating factors found by the board.

Turning to the issue of an appropriate sanction, we note the substantive misconduct in ll-DB-108 occurred between 2005 and 2006, during the general time period in which the substantive misconduct in Hollis I and Hollis II occurred. 112Based on our decision in Chatelain, we agree that the substantive misconduct in ll-DB-108 should be considered along with the misconduct in Hollis I and Hollis II. Therefore, no additional discipline is necessary for this misconduct.

As for the remaining misconduct, we note that in In re: Turissini, 06-0172 (La.4/24/06), 927 So.2d 1105, we disbarred an attorney, with prior discipline for similar misconduct, who failed to communicate with a client, neglected legal matters, and failed to cooperate with the ODC in its investigation. In determining a sanction, we recognized the presence of numerous aggravating factors, including: a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, ■vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution. As in Tu-rissini, several significant aggravating factors are present in the instant case, most notably respondent’s prior disciplinary record involving misconduct identical to that at issue in this proceeding.

Considering the numerous aggravating factors present, respondent’s prior disciplinary record in particular, and the fact that he has not satisfied the professional obligations he owed to his clients, we cannot say disbarment is inappropriate.

Accordingly, we will adopt the board’s recommendation and disbar respondent. We will also order respondent to make restitution to his victims.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Anthony Hollis, Louisiana Bar Roll number 16974, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law |isin the State of Louisiana shall be revoked. It is further ordered that respondent make restitution to his victims. 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.

      . See Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991) (when a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously).

      . In his report and recommendation, Judge Hornsby stated: "Mr. Hollis had, at the relevant time, a terrible track record for communicating with his clients, responding to written requests or demands from bar officials, and even attending to the simple matters required to ensure his eligibility to practice law,” and that "[t]he combination of that history, Hollis’s lack of recollection of communicating the offer, the absence of any other evidence the offer was communicated, and the testimony from [Mr. Sloan] and his mother suffice to meet [Mr. Sloan’s] burden on this point.”

      . The board stated: "Given the presence of several mitigating factors in Hollis I and Hollis II, it is unlikely the Court would have imposed a harsher sanction if it had considered the facts of ll-DB-108 with Hollis I and Hollis II.” The mitigating factors in Hollis I include: absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems (respondent was in substance abuse recovery at the time he was retained by the complainants), "willingness to acknowledge the wrongful nature of his conduct,” and remorse "albeit belated.” The mitigating factors in Hollis II include: absence of a dishonest or selfish motive, a cooperative attitude toward the proceedings, and remorse.


text:
    In re Stacey L. THOMAS.
    No. 2013-B-2685.
    Supreme Court of Louisiana.
    Feb. 7, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ^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, Stacey L. Thomas, an attorney licensed to practice law in the States of Louisiana and Alabama, based upon discipline imposed in two separate proceedings in Alabama.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The Ineligibility Matter

In September 2011, respondent issued a $300 check to the Alabama State Bar in payment of the fee for her occupational license. The check was subsequently returned unpaid for insufficient funds. Respondent then failed to respond to the Bar’s requests for information concerning the check and failed to tender payment for her license. During this time, respondent was not licensed to practice law in Alabama, but she nevertheless continued to practice. On February 13, 2012, the Disciplinary Commission of the Alabama State Bar issued an order interimly suspending respondent from the practice of law and restricting her from 12maintaining an attorney trust account in any financial institution. In the Matter of Stacey L. Thomas, ASB No. 2012-306.

The Pinnacle Matter

From 2006 to 2008, respondent owned and operated Pinnacle Title Company (“Pinnacle”). In July 2006, Fred Thomas, respondent’s father and an employee of Pinnacle, closed the sale of a residential property located on Campanella Drive in Theodore, Alabama. According to respondent, the sale was conducted and closed without her knowledge or participation. The property was allegedly purchased by Carolyn Kelly from Michael Kennedy. A mortgage loan of $94,500 was made by New Century Mortgage Corporation in order to finance Ms. Kelly’s purchase. The mortgage was later assigned to U.S. Bank. Neither the mortgage nor the deed was recorded by Pinnacle. According to the closing statement, the sum of $56,525.57 was disbursed at closing to satisfy a prior mortgage on the property held by Option One Mortgage (“Option One”), but the disbursement was never received by Option One and the mortgage was never satisfied. In February 2009, U.S. Bank filed suit against respondent, her father, and other defendants regarding the sale of the Campanella Drive property and the failure to satisfy the first mortgage. Respondent and her father were served by the sheriff in March 2009. Respondent represented her father in the suit and failed to file a timely answer on his behalf. As a result, a default judgment was entered against them in the amount of $128,809.14.

The bank records for Pinnacle’s escrow account demonstrate that Pinnacle paid out over $112,000 in total payments on the Campanella Drive closing to Michael Kennedy, Dale Kennedy, Carolyn Kelly or SDF Properties (a business owned by Dale Kennedy). The loan from the lender for the closing on the Campanella Drive property was only $94,500. Moreover, the payments related to |sthe property were spread out over a lengthy period of time. The records also demonstrate that from May 2006 through November 2007, Pinnacle paid SDF Properties and/or Dale Kennedy almost $138,000. There were several instances where Pinnacle made multiple payments to SDF Properties and/or Dale Kennedy on individual closings. Many of the checks were signed by respondent’s father but written by Jocelyn Easter, an employee of Pinnacle who was later fired after being convicted of mortgage fraud in an unrelated matter.

Ticor Title Company (“Ticor”) also filed suit against respondent, her father, and Pinnacle in relation to another real estate transaction involving Carolyn Kelly. Ticor alleged that Pinnacle had closed a real estate transaction involving a property located on Riverside Drive in Mobile. Like the previous transaction, the mortgage and deed were never recorded and a prior mortgage on the property was not satisfied after the closing. Respondent and her father were served with Ticor’s complaint in July 2010, but respondent failed to file an answer until December 2010. She also failed to timely file and/or properly respond to motions for discovery, which led to a judgment being issued against her and her father.

In January 2007, respondent’s father refinanced his home using Pinnacle as the closing company. On January 23, 2007, approximately $199,737.45 was wired into Pinnacle’s real estate account from the lender. Rather than disbursing the loan proceeds to Mr. Thomas, the bulk of the funds were left in the account in order to float the account and to make payments on other closings or to other third parties. Respondent maintained that she was unaware of the shortages in Pinnacle’s escrow account or that her father used funds from his refinance to fund shortages on the account.

In March 2012, respondent consented to be suspended from the practice of law for a period of ninety-one days, retroactive to February 13, 2012, the date of 14her interim suspension, for violating the following provisions of the Alabama Rules of Professional Conduct: Rules 1.3 (diligence), 1.4(a)(b) (communication), and 8.4(g) (misconduct). In the Matter of Stacey L. Thomas, ASB No. 2009-1460(A); ASB No. 2012-153; Rule 20(A); and Pet. No. 2012-306.

The Purifoy Matter

In March 2010, John Purifoy hired respondent to probate the estate of his father. In February 2012, respondent failed to appear for a hearing in the matter. Thereafter, the court ruled against Mr. Purifoy and taxed costs against him.

Mr. Purifoy also hired respondent to handle a matter involving the eviction of a tenant from one of his rental properties. During the course of the matter, respondent obtained a default judgment for past due rent and was able to obtain a garnishment on the tenant’s wages. Respondent had the garnishment payments of $280 issued directly to her. She cashed the checks but failed to deposit the funds into a trust account. She also failed to maintain an IOLTA account and failed to remit some of the garnishment payments to Mr. Purifoy.

In December 2012, respondent consented to be suspended from the practice of law for a period of one hundred eighty days for violating the following provisions of the Alabama Rules of Professional Conduct: Rules 1.3, 1.15(a)(b)(g) (safekeeping property of clients or third persons), and 8.4(a)(g). In the Matter of Stacey L. Thomas, ASB No. 2011-1912. Respondent also agreed to pay restitution in the amount of $500 to Mr. Purifoy.

| sLouisiana Proceedings

After receiving notice of the Alabama orders 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 decisions and orders of the Disciplinary Commission of the Alabama State Bar were attached to the motion. On November 19, 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
(3) 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.

| fiIn the instant case, respondent has made no showing of infirmities in the Alabama proceedings, nor do we discern any from our review of the record. Furthermore, we find no reason to deviate from the sanctions imposed against respondent in Alabama. Although the sanctions do appear somewhat lenient considering the severity of the misconduct at issue, 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, 831 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”).

Under these circumstances, we agree that it is appropriate to defer to the Alabama judgments imposing discipline upon respondent. Accordingly, we will impose the same discipline against respondent as was imposed in Alabama.

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, Stacey L. Thomas, Louisiana Bar Roll number 27892, 19767, be and she hereby is suspended from the practice of law for a period of ninety-one days, retroactive to February 13, 2012, the date of her interim suspension. It is further ordered that respondent be and she hereby is suspended from the practice of law for a period of one hundred eighty days.

      . In 2012, this court accepted a joint petition for consent discipline in which respondent stipulated that she mishandled a real estate closing. For this misconduct, she was suspended from the practice of law for six months, fully deferred, subject to two years of probation. In re: Thomas, 12-1129 (La.6/22/12), 90 So.3d 1045.

      . The record does not contain any details regarding the payments made to SDF Properties and to Dale Kennedy.

      . This proceeding included respondent’s misconduct in both the Ineligibility matter and the Pinnacle matter. Because the period of suspension imposed upon respondent exceeds ninety days, the Alabama Rules of Disciplinary Procedure require that she formally petition for reinstatement to the practice of law in Alabama.


text:
    In re Royal L. COLBERT, Jr.
    No. 2013-B-2928.
    Supreme Court of Louisiana.
    Feb. 7, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent notarized a document outside the presence of the signatory. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent engaged in the alleged misconduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Royal L. Colbert, Louisiana Bar Roll number 27412, be and he hereby is publicly reprimanded.

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.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Cardell T. ELLIS.
    No. 2013-KA-0834.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, New Orleans, LA, for The State of Louisiana/Appellee.
    Benny S. George, Jr.', New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

_JjThe defendant, Cardell Ellis, is seeking to have his conviction and sentence reversed on the grounds that the evidence was insufficient to prove his guilt. The defendant was charged, convicted, and sentenced for home invasion of an apartment leased by his girlfriend’s mother. Previously on appeal, this Court, addressing the sufficiency of evidence, affirmed the conviction and remanded the matter solely for the imposition of a mandatory fine. See, State v. Ellis, 12-0540, p. 9 (La.App. 4 Cir. 1/16/13), 109 So.3d 944, 950.

Subsequently, present counsel sought an out of time appeal, which was granted. As in his last appeal, the defendant now argues that the evidence was insufficient to prove that his entry was unauthorized, as he obtained an oral sublease and was paying rent to temporarily reside in the dwelling. In his prior appeal, this Court conducted a review under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and found that though the defendant had prior consent to enter the apartment, the evidence was sufficient to prove that the defendant’s entry at the time of the incident was unauthorized. Since this Court |2has already fully addressed the assignment of error asserted here and the defendant has not asserted any error or deficiencies associated with the previous ruling, we need not address the issue again. See, State v. Winding, 00-0364, p. 5 (La.App. 4 Cir. 4/11/01), 787 So.2d 385, 389. Accordingly, the defendant’s out of time appeal is dismissed.

APPEAL DISMISSED.


text:
    STATE of Louisiana v. Gregory GODCHAUX.
    No. 2013-KA-0233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana/Appellant.
    Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET.
   ROLAND L. BELSOME, Judge.

hln this criminal case, the State is seeking review of the district court’s decision granting the defendant’s motion to quash the bill of information. For the following reasons, we reverse and remand.

STATEMENT OF PROCEDURAL HISTORY

The defendant, Gregory Godchaux, was charged by bill of information with one count of possession of a firearm while in possession of oxycodone, a controlled dangerous substance, in violation of La. R.S. 14:95(E). He pled not guilty at arraignment. After a hearing, the trial court denied his motions to suppress evidence and found probable cause. On the scheduled trial date, the defendant appeared and filed a motion to quash the bill of information. The trial court subsequently granted the defendant’s motion to quash. The State’s appeal followed.

DISCUSSION

The sole issue presented on appeal is whether the trial court erred in granting the motion to quash. In particular, the State explains that possessing a valid ^prescription is not a proper basis for quashing the instant bill of information, as the crime charged was not a violation under the Controlled Dangerous Substance Law. We agree.

In his written motion, the defendant set forth two grounds for quashing the bill of information pursuant to La.C.Cr.P. art. 532(1) and (10): 1) the bill of information failed to charge an offense punishable under a valid statute; and 2) the defendant had a valid prescription. However, there is nothing in the record to substantiate quashing the charges on these grounds.

On the claim that the indictment fails to charge an offense which is punishable under a valid statute, the motion to quash can be likened to an exception of no cause of action in the civil arena. State v. Perez, 464 So.2d 737, 739 (La.1985). In considering the motion to quash, the district court accepts as true the facts contained in the indictment or bill of information and in the bill of particulars, and determines as a matter of law and from the face of the pleadings, whether a crime has been charged. Id.; State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720, 722 (1971).

In this case, the bill of information charges the defendant with possession of a firearm while in possession of oxycodone, a Controlled Dangerous Substance (CDS). Accepting these facts as true, the bill of information adequately charges an offense punishable under a valid statute, as the elements set forth in LA R.S. 14:95(E) include possessing a firearm while possessing a controlled dangerous substance.

13Next, to support his motion on the second ground, pursuant to La.C.Cr.P. art. 532(10), the defendant introduced evidence of a valid prescription at the hearing. The trial court granted the motion, opining that the defendant had a “valid, legal, effective, timely prescription for the drugs they found.”

La.C.Cr.P. art. 532 states that a motion to quash may be based on the following grounds:

10) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.

Here, the defendant was charged with an offense affecting public safety, not a violation of the Uniform Controlled Dangerous Substances Law. See La. R.S. 14:95(E). Therefore, having a valid prescription is irrelevant, and La.C.Cr.P. art. 532(10) is inapplicable under these circumstances.

The trial court’s ruling on a motion to quash should not be reversed in the absence of a clear abuse of discretion. State v. Sorden, 09-1416, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 183. (citations omitted). We find the trial court abused its discretion in quashing the charges on grounds unsubstantiated by the record. Accordingly, the judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . During a bond hearing, the trial court heard testimony concerning possession of the firearm. In particular, the defendant's brother testified that the defendant was unaware that he had left the gun in the car the day before. During the motion to quash hearing, defense counsel commented on this evidence to demonstrate that an element of the charges could not be proved. After ruling on the motion to quash, the trial court also commented on the nature of this evidence stating: "And the gun was not in plain view for this defendant to have known it was in the car at the time that he had this newly-filled prescription in the car with him.” While evidence may be adduced at a motion to quash, such may not include a defense on the merits. State v. Byrd, 96-2302, p. (La.3/13/98), 708 So.2d 401, 411; State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) ("the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”).