text:
    Augustine LOUIS, Appellant, v. The CHRYSALIS CENTER, INC., Appellee.
    No. 4D12-1118.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Michele K. Feinzig of Law Offices of Robin Bresky, Boca Raton, and Jeffrey M. Goodz of Remer & Georges-Pierre, PLLC, Fort Lauderdale, for appellant.
    James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for appellee.
   PER CURIAM.

We reverse the final summary judgment in favor of appellant’s employer in this action for retaliation under the Florida Civil Rights Act of 1992 (“FCRA”).

The appellate court reviews de novo a summary judgment, examining the record in a light most favorable to the non-moving party. Shirey v. State Farm Mut. Auto. Ins. Co., 94 So.3d 619, 620-21 (Fla. 4th DCA 2012). In her complaint, appellant claimed that appellee, her employer, retaliated against her because she reported sexual harassment by her supervisor. To prove retaliation, appellant must show that: 1) she was engaged in a protected activity; 2) she suffered an adverse employment action; and 3) there was causal relationship between the two. Blizzard v. Appliance Direct, Inc., 16 So.3d 922, 926 (Fla. 5th DCA 2009).

It was undisputed that appellant reported allegations of sexual harassment to the employer. Evidence was presented that, after reporting these allegations, she suffered adverse employment action by being written up for various employment matters, as well as ultimately being fired. The real issue was whether there was a causal relationship between the two. In this case, there was circumstantial evidence, at the least, to support a causal relationship, including but not limited to the temporal proximity of the adverse employment actions to the report of the sexual harassment. Further, circumstantial evidence was also presented that the reasons advanced by the employer which were offered to justify the adverse employment action were pretextual. Because there remain material issues of fact, the trial court erred in granting summary judgment.

Reversed.

WARNER, CONNER, JJ., and LEVENSON, JEFFREY R„ Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Grady WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1084.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In an opinion rendered June 8, 2011, we affirmed Appellant’s convictions but withheld issuance of the mandate pending the Florida Supreme Court’s decision in Williams v. State, 123 So.3d 23 (Fla.2013). In light of the Court’s decision in Williams, we grant Appellant’s motion to withdraw the previously issued opinion and we substitute the following.

Under the Florida Supreme Court’s recent decision in Williams, the trial court committed fundamental error by delivering the standard jury instruction for attempted manslaughter by act. Accordingly, we reverse and remand Appellant’s conviction for second-degree murder with a firearm.

Reversed and remanded for a new trial.

GROSS, CIKLIN and FORST, JJ., concur.


text:
    DK ARENA, INC., a Delaware corporation, and Don King, an individual, Appellants, v. EB ACQUISITIONS I, LLC, a Florida limited liability company, Appellee.
    No. 4D09-5.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.
    Rehearing Denied Sept. 27, 2013.

      Alvin B. Davis and Tania Cruz of Squire, Sanders (US) LLP, Miami, for appellants.
    Kevin Markow, Gary C. Rosen, and Evan B. Berger of Becker & Poliakoff, P.A., Fort Lauderdale, for appellee.
   ON REMAND FROM THE FLORIDA ■ SUPREME COURT

PER CURIAM.

This case is before the court on remand from the Florida Supreme Court. See DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So.3d 85 (Fla.2013). Supplemental briefs have been provided by the parties.

Based on the factual findings of the trial court, the failure of the appellee to cause the release of the escrow deposit was a non-material breach of contract, if any. Nothing in the contract or addendum obligated appellee to take any action to cause the deposit to be released. In addition, when viewed in the light most favorable to appellee, the evidence supports the conclusion that appellant’s conduct excused ap-pellee’s failure to deliver the deposit. Finally, appellant’s breach of its obligations under section 14 of the addendum provides a separate legal basis that nullifies appellant’s claim to the security deposit.

The final judgment is affirmed in part and reversed in part and remanded to the circuit court to enter an amended final judgment in favor of appellant on the claim involving the breach of a joint venture; in all other respects, the final judgment is affirmed.

GROSS, MAY and CIKLIN, JJ„ concur.


text:
    Raymond F. GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2318.
    District Court of Appeal of Florida, Fifth District.
    Sept. 3, 2013.
    Raymond F. Garcia, Montieello, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.315(a).

TORPY, C.J., EVANDER and COHEN, JJ., concur.


author: WARNER, J.

text:
    T.J.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-835.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

A juvenile appeals the trial court’s orders of disposition and restitution, after his admission to burglary of a dwelling. He claims that the trial court erroneously included restitution for items not listed in the original charging document. The court also imposed a special condition of juvenile probation that the juvenile not associate with persons under supervision, members of gangs, or whose contact is prohibited by the juvenile’s probation officer, parent or guardian. He contends that these were not authorized conditions of release, were overbroad and vague, and violated separation of powers. As to both issues on appeal, we reverse the trial court, concluding that the court ordered restitution for items not contained in the charging document and that the conditions on release were not authorized, were over-broad, and violated separation of powers.

Restitution

The juvenile, T.J.J., entered a plea of no contest to burglary of a dwelling and agreed to pay restitution to the victim. The original charging document included a narrative and listed the items stolen as a “blue Dell lap top computer, ... assorted jewelry, a Sony PS3 [PlayStation 3] controller, three PS3 games, and a blue ray DVD system all valued at around $1,200.00.” The order notes that “these are the only items listed as having been reported stolen ... [and] no supplemental report regarding the stolen items was ever prepared, nor was an updated or amended narrative ever created.... ”

At the restitution hearing, however, the court entered an order requiring payment for assorted items of jewelry, fifty video games which included 20 PS2 video games and 30 PS3 video games, a PS3 controller, five Blue Ray DVD video games, and assorted coins and change. These all totaled $2,718, or more than twice what the charging document states. Over objection by T.J.J., the court entered an order requiring restitution in this amount.

“[W]hen a defendant agrees to pay restitution as part of a plea agreement, the defendant’s agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea....” Malarkey v. State, 975 So.2d 538, 540-41 (Fla. 2d DCA 2008); see also Siminski v. State, 1 So.3d 1161, 1162 (Fla. 2d DCA 2009) (reversing a restitution award where, “[a]t the restitution hearing, several more items were claimed to be missing and ascribed to Mr. Siminski’s theft” than were listed in the factual basis for defendant’s plea). Here, as even the state concedes, the trial court authorized restitution for items not contained in the charging document nor within the facts admitted by the juvenile at the time of the plea. In particular, the state admits that 47 video games and the assorted coins and change were not included. As to the jewelry, although the specific items were not listed in the charging document, T.J.J. was charged with taking “assorted jewelry.” Thus, the court’s inclusion of the value of the items listed at the restitution hearing is within the charging document. We conclude also that the Blue Ray DVDs are within the charging document, as the state charged T.J.J. with taking a Blue Ray system, and Blue Ray DVDs can be considered part of that system. T.J.J. also admitted to taking some DVDs.

We therefore partially reverse the order of restitution with directions to delete therefrom restitution for the coins and all video games except three PS3 games. Otherwise, we affirm the award. Although T.J.J. makes a challenge to the trial court’s valuation of various items, he did not make any objection at the restitution hearing. Therefore, the issue is not preserved for appeal.

Special Condition of Juvenile Probation

The trial court imposed a special condition of probation on T. J. J. That condition provided for no contact between T.J. J. for general groups of persons:

The child shall have no voluntary, willful and knowing contact with:
1) any person on probation or under any supervision by any juvenile or adult court;
2) any known or organized criminal street gang or gang members; or
8) any person whose contact or association is prohibited by his or her juvenile probation officer (JPO), par-entis), guardian(s), or custodian(s). Before having voluntary, willful and knowing contact with any persons outside of school, the child has the affirmative obligation to make an inquiry with his or her JPO to determine if that person is on probation or under any supervision by any juvenile or adult court. JPOs are authorized to permit, or refuse to permit, in their discretion any such voluntary, willful and knowing contact between the child and any such youth and/or adults who are not related by blood or marriage to one another on a case-by-case basis.

Defense counsel objected to this provision as: (1) not authorized by statute or rule; (2) vague and overly broad; (3) violating the separation of powers doctrine; and (4) violating double jeopardy. He appeals the inclusion of this condition of his probation.

Neither section 985.435, Florida Statutes (2012), nor Form 8.947 of the juvenile rules of procedure contains as a condition of probation, a blanket prohibition of willful contact with anyone on supervision by juvenile or adult court, a member of a criminal gang, or someone whom the child’s parent, guardian or probation officer prohibits the child from contacting. The statute contains no provision respecting contact with others; the form contains only a special condition prohibiting contact with the victim. The form contemplates that the order will include the name of a specific person. (“The child may have no.contact with victim(s),.(name(s)).”). Because it was not a statutorily imposed general condition, the condition must be related to the crime committed. See Biller v. State, 618 So.2d 734, 734-35 (Fla.1993). “A special condition of probation is invalid if a condition has no relationship to the crime committed, relates to conduct which is not in itself criminal or forbids conduct that is not reasonably related to future criminality.” A.M.B. v. State, 917 So.2d 239, 240 (Fla. 5th DCA 2005) (quoting Trent v. State, 770 So.2d 1272, 1274 (Fla. 4th DCA 2000)). Here, the condition is invalid under that test. There is no evidence in the record that the condition has any relationship to the crime charged; it is not illegal for a juvenile to contact a person under supervision or prohibited by a parent; and mere contact does not constitute conduct reasonably related to future criminality.

In addition, the condition is invalid for vagueness and overbreadth. The court may not impose conditions which are over-broad and could be violated unintentionally by the supervised individual. See Hughes v. State, 667 So.2d 910, 912 (Fla. 4th DCA 1996). Even though the court required willful and voluntary contact for a violation, the juvenile still could be considered in violation if he didn’t check with his probation officer prior to any contact with an individual outside school. Since “contact” is not defined, this could be as simple as saying a word or two to a neighbor or store clerk, if that person were under juvenile or adult supervision. Furthermore, the child would have to obtain substantial personal information from any person he wanted to come into contact with in order to provide it to his probation officer, something he could not do without having contact with an individual.

This case is similar to Huff v. State, 554 So.2d 616 (Fla. 2d DCA 1989), where the court struck as invalid a condition of probation that the probationer could not be within three blocks of a “high drug area” as defined by his probation officer. Such a condition was too vague to apprise the defendant of his limitations, according to the court, and could be violated unintentionally should the probation officer not inform him of the location of a high drug area. Id. at 617. Likewise, the condition on T.J.J. to avoid any contact with supervised individuals, gang members, or other persons for whom contact is prohibited by his parents or probation officer does not apprise T.J. J. of his limitations. He essentially cannot come into contact with any individual outside school without first contacting his probation officer, which he has an affirmative duty to do to avoid violation of the condition. Moreover, the provision does not define what constitutes a criminal gang such that the juvenile can know whom to avoid. The provision is both undefined and overbroad.

Finally, T.J.J. argues that the condition that he have no voluntary, willful and knowing contact with “any person whose contact or association is prohibited by his or her juvenile probation officer” should be stricken because it violates the separation of powers doctrine. We agree.

Only a court can set conditions of probation. In re T.L.D., 586 So.2d 1294, 1294 (Fla. 4th DCA 1991). In T.L.D., this court struck a special condition requiring the appellant to “follow the conditions imposed by the community control counsel- or.” Id. “[A] trial court reversibly errs when it delegates judicial responsibility to a probation officer.” Id. Here, the trial court delegated to the probation officer and parents the authority to expand or contract the individuals whom T.J.J. is prohibited from contact. This delegated a judicial function, which is error.

T.J.J. also argues that the clarified condition requiring the “affirmative obligation to make an inquiry with his or her JPO to determine if that person [with whom the defendant wishes to contact] is on probation or under any supervision” violates double jeopardy because it amounts to an additional condition imposed after the sentence was originally imposed without any proof that the defendant violated the terms of his probation. The state concedes that this “affirmative obligation” was not a part of the original condition and was added only after the defendant’s motion to correct disposition order.

Probation cannot be enhanced without first a determination that the probationer violated probation. J.H. v. State, 71 So.3d 202, 204 (Fla. 5th DCA 2011) (citing § 948.06, Fla. Stat. (2010)). The state concedes this argument in its answer brief. We agree, although because we are directing the deletion of the provision, no additional relief is necessary.

For the foregoing reasons, we reverse the special condition of probation. Because there are no facts in this record to suggest that a condition prohibiting contact with others is related to this case, we order its deletion from the special conditions of probation.

Reversed and remanded to comet the restitution order and conditions of probation consistent with this opinion.

GROSS and FORST, JJ., concur.


text:
    Geovany Ortiz ZUNIGA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1387.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.

      Bernard S. Fernandez, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Geovany Ortiz Zuniga appeals his convictions on multiple charges, including first degree murder. These arose from a robbery in which an innocent bystander was killed during the robbers’ escape. Zuni-ga’s involvement consisted of bringing one of the robbers to the scene. He contends that the trial court erred in allowing the state to admit a portion of his statement in which he admitted being involved in four robberies. We agree that the admission of these statements was error. We cannot conclude it was harmless. We thus reverse for a new trial.

This case involves the robbery of the Three Amigos convenience store in Boyn-ton Beach. The store cashes checks for migrant workers and therefore had a lot of cash on hand on the Friday of the robbery. In the early afternoon, several men came in the store, and one pointed a gun at the store clerk. One man hopped over the counter, and another man forced him to open the cash register and take out the money. Another man in a black hat also took money. After the robbery, the assailants fled in a red Dodge Magnum vehicle. The store clerk called 911 and then got in his car to follow the robbers. Shots were fired, and an innocent bystander was killed. After a chase, three of the robbers were caught. Their capture led the detectives to Zuniga, who was not one of the robbers at the store.

The sole evidence against Zuniga consisted of his statements to the officers who interrogated him some five months after the robbery. The lead detective questioned Zuniga twice, using another police officer as a translator, because Zuniga did not speak English. As noted by the official translators at trial, the police translator made multiple mistakes in translation and inserted his own understanding of what Zuniga said. Between the imperfect translation and the disjointed questioning, the statements are extremely difficult to follow.

In the statements, Zuniga admitted that he drove one of the robbers to a gas station where that man met up with the other robbers. Zuniga did not know that a robbery was going to take place and refused to go into the store with the other men. He stated that the men had gone to the store before, and no robbery had taken place. He did acknowledge that he would get a small cut of the money taken from the store, as well as collecting the mastermind’s share. Since he left prior to the robbery occurring, he did not know that the robbers shot a bystander while escaping from the scene. His statement was confusing but was consistent with his defense that he did not know that a robbery would occur. It is also unclear from the statement as to whether he was explaining in part a scheme to pass bad checks at check cashing stores, from which he gets a cut as well as the mastermind’s share for identifying and setting up the theft, in addition to the robbery in question.

At the end of the interrogation, after Zuniga mentioned that “they” hadn’t been doing this too long, the officer asked Zuni-ga how many times he had “helped with stores” like the jewelry store and clothing store. Zuniga answered that there have been four, and the officers then discussed among themselves the four store robberies that they already knew involved this same group of robbers.

Zuniga’s main defense at trial was that he did not know that a robbery was to take place when he drove the one robber to meet the others. He also argued that he knew nothing about the robbery itself or its aftermath and defended against the murder of the bystander on the independent acts theory. Nevertheless, he was convicted of all charges. He appeals his conviction.

The standard of review for the admission of evidence is abuse of discretion. San Martin v. State, 717 So.2d 462, 470-71 (Fla.1998). Zuniga argues that the statements at the end of the interrogation, in which he admitted to participation in four robberies, was improper admission of prior bad acts, inadmissible under section 90.404(2), Florida Statutes (2010). We agree.

In Armstrong v. State, 931 So.2d 187 (Fla. 5th DCA 2006), the Fifth District catalogued the many cases which have held that a defendant’s admission of other crimes during police interrogation of a different crime is generally inadmissible at trial unless offered as Williams rule evidence. The prosecutor and defense in this case agreed, however, that because of the nature of Zuniga’s involvement in this case, the prior robberies did not constitute Williams rule evidence. The admission of such unrelated robberies constituted improper bad character evidence and should have been excluded.

The state does not really contest that the admission of the robberies constituted bad character evidence. Instead, it claims that the statements were inextricably intertwined so that they could not be excised from the statement. In the statement pri- or to the admission to the unrelated robberies, Zuniga was attempting to explain his involvement in the Three Amigos robbery and made reference to other robberies. We have read the statements multiple times, and we cannot glean from his prior statements any admission to the unrelated robberies other than the statements to which the defense objected. While Zuniga talks about how the robbers watch the store, all of the prior comments could refer only to the Three Amigos robbery or to a check cashing scheme, not a robbery.

Regardless, the use of the “inextricably intertwined” theory of evidence is misplaced in this case. “Evidence is inextricably intertwined if the evidence is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crime(s).” McGee v. State, 19 So.3d 1074, 1078 (Fla. 4th DCA 2009) (quoting Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006)) (citations and internal quotations omitted). In McGee, we held that evidence of prior non-similar sexual acts was admissible as inextricably intertwined with the charged acts of lewd and lascivious conduct, because they were necessary to adequately describe the events leading up to the charged crimes. Id. In Dorsett, the evidence of prior drug transactions was properly admitted to prove a material fact in issue. Dorsett, 944 So.2d at 1213-18.

Here, however, the admission of the prior crimes did not prove a material fact in issue, nor was it necessary to establish context or to describe the events leading up to the charged crimes. The prosecutor simply thought that the interrogation involved the discussion of the prior crimes, and the discussion of them in the interrogation could not be separated from the admissible portions of the interrogation without stripping some of the admissible content of the statement. With this we disagree, as the prior comments do not implicate the very specific reference to involvement in the four robberies or the discussion of those after the admission by the officers.

The introduction of the defendant’s admission to the prior robberies was not harmless. Zuniga’s defense was that he did not know that a robbery was to take place. That defense was severely impacted by his admission that he had been involved in three other store robberies. Although other parts of his statement may implicate him, we cannot say that the admission is harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Zuniga raises another issue regarding the trial court’s denial of his motion to suppress statements he made after requesting counsel. We affirm based on State v. Owen, 696 So.2d 715, 719 (Fla.1997), and Davis v. United States, 512 U.S. 452, 458-62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

Reversed and remanded for a new trial

CONNER, J., and LEYENSON, JEFFREY R., Associate Judge, concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: CONNER, J.

text:
    Leon BARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4325.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.

      Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

The propriety of using the conjunctive-disjunctive phrase “and/or” in charging a defendant or instructing a jury has vexed trial and appellate courts since its use was first addressed by the Florida Supreme Court in Cochrane v. Florida East Coast Railway Co., 107 Fla. 431, 145 So. 217 (1932). On the facts of this case, we hold that the use of “and/or” in jury instructions regarding attempted felony murder against two possible victims was not fundamental error and did not create the possibility of a non-unanimous verdict.

Leon Barnett and his brother were charged in one information for a criminal episode involving two victims, M.M. and B.T. The information alleged counts against Barnett separately from his brother. Barnett was charged with attempted felony murder, aggravated battery and robbery with a weapon. Barnett’s brother was charged with the same three crimes. As to both brothers, the alleged victim of the attempted felony murder was “B.T. and/or M.M.” and the alleged victim of the aggravated battery and robbery was B.T. Barnett’s brother was charged additionally with attempted first-degree murder of M.M.

The brothers were tried together with separate juries. The jury found Barnett guilty “as charged” for attempted felony murder and aggravated battery and a lesser included offense of attempted robbery. The verdict form did not state the name of the victim for any of the counts. On appeal, Barnett raises four issues, only one of which we find merits discussion: whether the conviction for attempted felony murder is fundamentally erroneous because it cannot be determined if the verdict was unanimous.

Factual Background and the Jury Instructions

Barnett was charged for his role in the attempted robbery of B.T. and the shootings of B.T. and M.M. According to M.M.’s testimony adduced at trial, M.M. received a call from B.T. asking for a ride. M.M. drove to where B.T. was located. He saw B.T., Barnett, and Barnett’s brother walking toward his car. B.T. had his cell phone in his hand, and he was doing something with it. M.M. pulled up and stopped, and Barnett approached the front passenger window. The front windows on both sides of the car were halfway down. Barnett pulled out a black gun which appeared to be flat like a semiautomatic handgun, pointed the gun at M.M., and told him to put the car in park. Barnett then pointed the gun at B.T. and asked B.T. for his money back. At that point, Barnett was still near the front passenger window, B.T. was by the back passenger door, and Barnett’s brother was standing at the front driver’s side window. Barnett told B.T. to empty his pockets. M.M. then mumbled “that they weren’t going to get away with this.” Barnett’s brother told M.M. that he wasn’t going to talk that way to his brother, pulled out a silver revolver, and without hesitation, fired two shots into M.M. The first shot hit M.M. in the neck; the second shot was in the back, hitting the spine. A few seconds later, M.M. then heard several gunshots coming from the right rear of his car. M.M. did not see who fired those shots. After being shot, M.M. did not see where Barnett’s brother went. B.T. did not testify, and there were no other eyewitnesses to the shootings.

A witness living in the neighborhood testified that B.T. came to her door after she heard gunshots and said Barnett and his brother “did this to me.” She saw blood on his legs. An officer who arrived at the scene testified that a man identifying himself as B.T. was leaning against a vehicle when he arrived and appeared to have been shot in the leg. B.T. told the officer Barnett’s brother shot him.

An officer testified six spent .45 caliber Winchester shell casings were found in the street where the shootings occurred. A firearm examiner testified the casings found on the ground were discharged from the same semiautomatic gun, not from a revolver. He also testified that one of the bullets that struck M.M., which was expelled from M.M. a year after the incident, was .45 caliber, and it was likely fired out of a barrel larger than intended due to the lack of rifling on the outside of the bullet. The spent casings were similar, but different from the bullet that struck M.M. The firearm expert testified it was possible that the bullet that struck M.M. was fired from a revolver.

No witness testified to seeing Barnett fire his gun. There was no evidence that more than two shots were fired at M.M. M.M. testified he saw the revolver that was used to shoot him and Barnett’s brother was the one who shot him. The testimony of the gun expert could support the conclusion M.M. was shot with a revolver.

M.M. was the only eyewitness to Barnett possessing a gun, and his testimony was the gun was a flat semiautomatic gun. The shell casings found at the scene were consistent with being fired from a semiautomatic handgun. The physical evidence supports the conclusion B.T. was shot with an automatic weapon. Therefore, either B.T. was mistaken as to who shot him or Barnett passed his gun to his brother before his brother shot B.T.

On the charge of attempted felony murder, the trial court instructed the jury:

To prove the crime of attempted felony murder, the State must prove the following three elements beyond a reasonable doubt. One, Leon Barnett committed or attempted to commit a robbery. Two, while engaged in the commission or attempted commission of robbery, the Defendant committed or aided or abetted an intentional act that is not an essential element of felony murder. Three, this intentional act could have, but did not cause the death of [M.M.] and/or [B.T.]. Robbery is defined by Florida Statutes, by Florida law and will be explained in a moment. In order to convict Leon Barnett of attempted felony murder, it is not necessary for the state to prove that he had a premeditated design or intent to kill.

(emphasis added).

Legal Analysis

“While the presentation of dual theories of a crime is allowable, this occurs when a defendant is charged with the commission of one crime, and the State presents two scenarios or bases supporting the commission of the crime.” Perley v. State, 947 So.2d 672, 674 (Fla. 4th DCA 2007). In Saldana v. State, 980 So.2d 1220 (Fla. 2d DCA 2008), the defendant was charged with possession of a firearm in which the information alleged the defendant possessed a “9mm handgun and/or .45 caliber Ruger.” Saldana, 980 So.2d at 1221. As noted by the Second District,

Florida Rule of Criminal Procedure 3.140(k)(5) permits disjunctive or alternative allegations for an offense that may be committed by one or more of several means or acts. Rule 3.140(o) provides that no motion to dismiss for a disjunctive pleading defect will be granted unless the information is so vague or indistinct as to embarrass or mislead the defendant in preparing his defense.

Saldana, 980 So.2d at 1221-22. The State’s opportunity to pursue alternative theories of the commission of a crime includes situations in which the information alleges more than one victim. Knight v. State, 819 So.2d 883 (Fla. 4th DCA 2002) (a defendant’s continuous violent resistance of multiple officers constitutes only one instance of resisting arrest; naming more than one officer in that count was not in error, as appellant could be convicted of only one count of resisting arising from his confrontation with either or both officers).

It is the trial judge’s responsibility to “ensure ‘that the jury is fully and correctly instructed as to the applicable law.’ ” Love v. State, 971 So.2d 280, 288 (Fla. 4th DCA 2008) (citing Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006), and quoting Moore v. State, 903 So.2d 341, 341 (Fla. 1st DCA 2005)). The importance of proper jury instructions is particularly critical where the State pursues alternative theories of guilt.

Because Barnett admits that he did not object to the jury instruction for the attempted felony murder offense, the standard of review is whether any defects constitute fundamental error. Perley, 947 So.2d at 674; Dempsey v. State, 72 So.3d 258 (Fla. 4th DCA 2011). “[F]or jury instructions to constitute fundamental error, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008) (internal quotations omitted). “Courts must analyze the totality of the record to determine if an errant instruction is fundamental error.” Dempsey, 72 So.3d at 261 (citations omitted). “[I]f the totality of the circumstances indicates there is no reasonable possibility an alleged jury instruction error contributed to the verdict, the error is not fundamental.” Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010).

The State argues that any error in this case is not fundamental, citing Dempsey, Croom, and Provow v. State, 14 So.3d 1134, 1136 (Fla. 4th DCA 2009). In Dempsey, this court held that it was not fundamental error to use “and/or” between the names of victims in a jury instruction for robbery, relying on Croom and Provow. In Croom, the defendant was charged in the alternative with committing assault on at least one of three victims. The First District held it was not fundamental error to charge the defendant in this manner when there was overwhelming evidence that the defendant committed assault on all three of the victims. Croom v. State, 36 So.3d at 710. In Provow, the defendant was charged with resisting an officer with violence, with the court placing “and/or” between the names of the two officers that the defendant resisted in the instructions. We held there was no fundamental error when the defendant’s continuous resistance of both officers constituted only one instance of resisting. Provow, 14 So.3d at 1136.

However, the State’s reliance on Dempsey, Croom, and Provow does not address the specific argument raised by Barnett concerning his conviction on attempted felony murder. Barnett argues that the combination of the information alleging alternative victims of the attempted felony murder as “[B.T.] and/or [M.M.],” the verdict form finding Barnett guilty of attempted felony murder “as charged,” and the jury instructions explaining intentional act element “could have, but did not cause the death of [M.M.] and/or [B.T.],” created the possibility that the jury verdict for that count was not unanimous. Barnett contends the possibility the jury verdict was not unanimous constitutes fundamental error.

In support of his argument, Barnett relies on our decision in Perley, which relied on the First District’s decision in Robinson v. State, 881 So.2d 29 (Fla. 1st DCA 2004). Quoting from Robinson, we said in Perley: “As a state constitutional matter, a criminal conviction requires a unanimous verdict,” and “[wjhere a single count embraces two or more separate offenses, albeit in violation of the same statute, the jury cannot convict unless its verdict is unanimous as to at least one specific act.” Perley, 947 So.2d at 675. Unlike the offense of resisting an officer addressed in Provow, where the offense could have more than one victim, attempted felony murder, by definition, can have only one victim. By alleging two alternative victims of attempted felony murder in this case, coupled with jury instructions suggesting alternative victims, the State, arguably speaking, facially raised the possibility that a jury verdict on that count may not be unanimous.

Barnett raises an interesting argument that was apparently never addressed as an issue in Dempsey, Croom, or Provow, where the courts did not address the possibility of a non-unanimous verdict. However, Barnett’s argument fails because the State never argued to the jury a theory that Barnett shot M.M. or aided or encouraged his brother to shoot M.M., nor did the State present any evidence to support such a theory.

As the trial court instructed, to satisfy one of the elements of attempted felony murder, the State had to prove in this case that Barnett, while engaged in the attempt to rob B.T., engaged in an intentional act that was not essential to the crime of robbery. Fla. Std. Jury Instr. (Crim.) 6.3. As to that element, the State introduced evidence, regarding B.T. as the victim, that during the course of the robbery, Barnett shot B.T., an intentional act that was not necessary to accomplish the robbery. However, as to the shooting of M.M., the sole eyewitness, M.M., unequivocally testified that Barnett’s brother fired the shots to his neck and spine. There was no evidence that Barnett aided or encouraged the shooting of M.M. Regarding attempted felony murder with M.M. as the victim, Barnett argues the jury’s verdict may have rested on a finding that the shooting of M.M. by Barnett’s brother was proof of Barnett’s guilt because “the jury would not have been able to discern the legal inadequacy of this factual basis,” referring to the intentional act element. In other words, Barnett argues that the jury instruction on the intentional act element invited the jury to find M.M. was the victim when there was no evidence that Barnett shot or assisted in the shooting of M.M.

We would find merit in the argument if the State argued any theory that Barnett was the one who actually shot M.M. or aided or encouraged his brother to shoot M.M. However, after reviewing the record, it does not appear that the State put forth such a theory in opening statements, in the evidence, or in closing arguments. In essence, Barnett asks us to speculate the jury did not properly apply the evidence to the jury instructions. We do not agree there was a reasonable possibility that some of the jurors may have concluded that Barnett was guilty of the attempted murder of M.M. because of a faulty jury instruction. Although it was error for the trial court to include M.M. as a victim of attempted felony murder by Barnett in the jury instructions when there was no evidence to support that conclusion, the error was not fundamental in this case.

We again caution the State and trial judges about the use of “and/or” in infor-mations and jury instructions. We join the First District’s continued condemnation in Croom of the use of “and/or,” which dates back to our supreme court’s condemnation in Cochran in 1932. And we remind the State and trial judges of what we wrote in Provow:

[A]s a matter of legal semantics, when the law prescribes or permits that same logical possibility, and/or may properly be employed to explain it. It may not be used, however, when the only legal choice is disjunctive, with one negating the other, or when the selection of both creates a legally intolerable ambiguity.

Provow, 14 So.3d at 1136 (bold italics in original; additional italics added). The use of “and/or” may create the possibility for non-unanimous verdicts. James v. State, 706 So.2d 64, 65 (Fla. 5th DCA 1998) (“Lumping alleged victims together in a single count of aggravated assault and permitting the jury to return a verdict of “guilty as charged” creates serious due process problems.”).

Affirmed.

DAMOORGIAN, C.J., and WARNER, J., concur.

      . No issue is made on appeal about the brothers being tried together.

      . M.M. testified he was looking at Barnett’s brother as he fired both shots.

      . M.M. heard multiple gunshots at the rear passenger side of his vehicle. All of the casings found in the street were fired from the same semiautomatic gun and one casing was found near the passenger side of the vehicle. Barnett was standing at the front passenger window when M.M. was shot.

      . See Justice Shaw's concurring opinion in Bottoson v. Moore, 833 So.2d 693, 710 (Fla.2002), for a discussion of the long Florida history requiring unanimous verdicts.

      . We also note that in cases such as Garzon, Dempsey v. State, 939 So.2d 1165 (Fla. 4th DCA 2006), Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005), and Concepcion v. State, 857 So.2d 299 (Fla. 5th DCA 2003), appellate courts addressed the use of "and/or” between the defendant and co-defendant in charging documents, but there is no discussion of the issue requiring unanimous verdicts. However, in Garzón and Concepcion, there is some discussion of the use of "and/or” in jury instructions depriving the defendant of an “individualized verdict.”

      . We stated in a footnote in Love, "Given the amount of litigation generated by the use of the "and/or” locution injury instructions, trial courts should avoid the locution when drafting the jury charge on the applicable law.” Love, 971 So.2d at 288 n. 4.


author: CIKLIN, J.

text:
    Michael SEALE and Elaine Seale, Appellants, v. REGIONS BANK d/b/a Regions Mortgage, Successor by Merger to Union Planters Bank, National Association, Appellee.
    No. 4D12-3869.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.
    Andrea H. Dueñas of the Law Office of A. Dueñas, P.A., Lantana, and Brian K. Korte of Korte & Wortman, P.A., West Palm Beach, for appellants.
    Kimberly Hopkins and Ronald M. Gaché of Shapiro, Fishman & Gaché, LLP, Tampa, for appellee.
   CIKLIN, J.

Michael and Elaine Seale (the “Homeowners”) appeal the final summary judgment of foreclosure entered in favor of Regions Bank (the “Bank”). The Homeowners argue that the trial court erred in entering summary judgment when their affirmative defenses were not factually refuted or found to be legally insufficient. Because one of the legally sufficient defenses was not factually refuted, we must reverse.

In their answer, the Homeowners asserted five affirmative defenses, only three of which are relevant to this appeal. The Homeowners alleged that the Bank lacked standing, that it failed to provide the required notice of default, acceleration, and opportunity to cure, and that the Bank was not authorized to bring the action on behalf of the owner of the note. The defenses were struck as insufficiently pled, and on appeal, the Homeowners argue that the court erred in striking these defenses. We agree with the Homeowners that these defenses were sufficiently pled and thus erroneously struck. See Gonzalez v. NAFH Nat’l Bank, 93 So.3d 1054, 1057 (Fla. 3d DCA 2012) (‘“Where .... a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.’” (quoting Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884, 885 (Fla. 5th DCA 1979))).

Because the legally sufficient defenses were improperly struck, summary judgment was precluded if the defenses were not factually refuted. A wealth of case law makes it clear that in mortgage foreclosure cases, summary judgment is precluded if affirmative defenses are not factually refuted or shown to be legally insufficient. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251 (Fla. 2d DCA 2012); Thomas v. Ocwen Loan Servicing, LLC, 84 So.3d 1246 (Fla. 1st DCA 2012); Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011); Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288 (Fla. 4th DCA 2010); Leal v. Deutsche Bank Nat’l Trust Co., 21 So.3d 907 (Fla. 3d DCA 2009); Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009).

The record reflects that the defenses related to standing and authority to bring suit were refuted. However, nothing in the record refuted the Homeowners’ claim that the Bank did not provide the required notice of default and acceleration. Consequently, the trial court erred in entering summary judgment.

Reversed and remanded for farther proceedings.

WARNER and CONNER, JJ., concur.

      . The Homeowners raised five affirmative defenses, all of which were struck by the trial court. On appeal, they discuss only three of those defenses. As such, we do not address the other two.

      . Additionally, the Homeowners filed an affidavit attesting that the required notice was never received.


text:
    ATLANTA CAPITAL PARTNERS, a Georgia Limited Liability Company, Appellant, v. QUAMTEL, a Nevada corporation, Appellee.
    No. 4D12-2566.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.

      Tony Stabenow of The Stabenow Law Firm, PLLC, Miami, for appellant.
    Brett J. Horowitz of Tobin & Reyes, P.A., Boca Raton, for appellee.
   PER CURIAM.

This is an appeal of the trial court’s order denying the appellant’s motion for attorneys’ fees. This order addressed only the issue of whether the appellant was entitled to fees under section 57.105, Florida Statutes (2011). Despite the appellant also claiming it was entitled to fees pursuant to specific provisions within an alleged contract, the trial court’s order is silent on whether the appellant was entitled to fees under the terms of the contract. While appellant’s motion for rehearing to address this issue was pending, it filed the instant appeal.

Because the trial court’s order failed to address whether the contract provided a basis for an award of attorneys’ fees, we reverse the order denying the appellant’s motion for attorneys’ fees and remand the case for the trial court to determine whether the contract provides an entitlement to attorneys’ fees. See Reed v. Reed, 857 So.2d 936, 936 (Fla. 4th DCA 2003).

Reversed and Remanded.

TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.


text:
    Scott N. ERRICO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-402.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.
    Carey Haughwout, Public Defender, and Clayton R. Kaeiser, Coconut Grove, for appellant, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order denying appellant’s motion for post conviction relief to the degree appellant states a claim under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and remand for an evidentiary hearing on that issue. Appellant filed affidavits supporting the contention that at his 1985 trial, State eyewitness Patrick Menil-lo gave false testimony, that he has since recanted, and that the prosecutor knew he was presenting false testimony at the time of the trial. “To establish a Giglio violation, [appellant] must show: (1) that the testimony was false; (2) that the prosecutor knew the testimony was false; and (3) that the statement was material. If there is a reasonable possibility that the false evidence may have affected the judgment of the jury, a new trial is required.” Craig v. State, 685 So.2d 1224, 1226 (Fla.1996) (citation omitted); see also Butler v. State, 946 So.2d 30, 31 (Fla. 2d DCA 2006); Davis v. State, 31 So.3d 277, 278 (Fla. 2d DCA 2010); Cueto v. State, 88 So.3d 1064, 1067 (Fla. 3d DCA 2012).

We affirm the circuit court’s ruling on all other issues raised in appellant’s motion.

Affirmed in part, reversed in part, and remanded.

DAMOORGIAN, C.J., GROSS and GERBER, JJ., concur.


author: PALMER, J. ORFINGER, J., BERGER, J.,

text:
    Crystal L. MADDOX, Appellant, v. FLORIDA FARM BUREAU GENERAL, etc., et al., Appellee.
    No. 5D12-3577.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 2013.
    Robert J. Telfer, Jr., of Cianfrogna, Tel-fer, Reda, Faherty & Anderson, P.A., Ti-tusville, for Appellant.
    John D. Russell, of Burr & Forman LLP, Tampa, for Appellee.
   PALMER, J.

In this dog bite case, Crystal Maddox appeals the final judgment entered by the trial court granting declaratory relief to Florida Farm Bureau General Insurance Company. Determining that the trial court erred in concluding that only one “occurrence” under a homeowner’s insurance policy took place, we reverse that portion of the final judgment.

At the time of the dog attack, Maddox, together with her two sons, Logan and Ivan, lived with her boyfriend, Robert Bul-lard, and his two dogs, Dixie and Sugar, in Bullard’s home. As Maddox was dressing Logan, she heard Ivan screaming. Maddox and Bullard ran to the spare bedroom where they saw Dixie biting Ivan. They tried to get Dixie to release her grip on Ivan’s face. After Dixie finally released Ivan’s face from her mouth, she bit Maddox in the face. Both Ivan and Maddox sustained injuries from the dog bites.

Bullard’s home was insured under a homeowner’s policy issued by Florida Farm Bureau General Insurance Company. The policy declarations provided Bul-lard with personal liability coverage limited to $100,000 for each “occurrence.” The policy provided, in pertinent part, the following conditions for personal liability:

All “bodily injury” and “property damage” resulting from any one accident or from continuous or repeated exposure to substantially the same general harmful conditions shall be considered to be the result of one “occurrence”.

The policy contained the following relevant definition:

“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a. “Bodily injury”; or
b. “Property damage.”

Maddox filed a complaint against Bul-lard seeking damages for the injuries she sustained in the dog attack. Florida Farm Bureau thereafter filed a complaint for declaratory relief naming both Bullard and Maddox as defendants. The complaint alleged that Florida Farm Bureau was not liable to pay any damages to Maddox because, under Bullard’s policy, the damages claimed by Maddox for her bodily injuries were subject to the same occurrence limit applicable to the damages for injuries suffered by Ivan, and that the per occurrence limit had been exhausted because $100,000 had already been paid to Ivan. The complaint also requested the court to enter an order declaring that the entire dog attack constituted one occurrence under Bullard’s policy. Bullard and Maddox filed separate answers asserting that the injuries to Ivan and Maddox were sustained in separate occurrences.

Florida Farm Bureau and Maddox filed competing motions for summary judgment. The trial court granted Florida Farm Bureau’s motion, finding the dog bite injuries were subject to the one occurrence limit in Bullard’s policy.

Maddox appeals, arguing that the trial court erred in granting summary judgment in favor of Florida Farm Bureau because the dog bites that she and Ivan sustained were separate occurrences. We agree.

In the absence of explicit policy language to the contrary, the Florida Supreme Court has adopted the “cause theory,” which looks to the cause of a party’s injuries for determining the number of “occurrences” under an insurance policy. See Koikos v. Travelers Ins. Co., 849 So.2d 263, 269 (Fla.2003). Here, the cause theory must be applied because Bullard’s policy contains no explicit contrary language.

Whether the injuries that Maddox and Ivan sustained constitute one occurrence is controlled by American Indem. Co., v. McQuaig, 435 So.2d 414 (Fla. 5th DCA 1983), and Koikos v. Travelers Ins. Co., 849 So.2d 263 (Fla.2003).

In McQuaig, two deputy sheriffs responded to a residence where three shots were fired. The first shot struck one officer. The third shot struck another officer. The second shot struck both officers. In issuing declaratory relief, as sought by the property owner and his insurer, American Indemnity, the trial court held that each shotgun blast was a separate occurrence. American Indemnity appealed arguing that there was only one occurrence for the following three reasons: (1) one instrumentality of danger — the shotgun — caused the injuries, (2) the injuries were caused in one specific location, and (3) the injuries occurred in a short time period of less than two minutes. In rejecting this argument, our court recognized that, under the cause theory, “the inquiry is whether ‘there was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damages.’” McQuaig, 435 So.2d at 415 (quoting Bartholomew v. Ins. Co. of N. America, 502 F.Supp. 246 (D.R.I.1980)).

In Koilcos, George Koikos rented his restaurant to a fraternity for a graduation party. During the party, an intruder fired two separate, but nearly concurrent, rounds. Two guests of the fraternity party were struck by a single bullet. In addition, three other guests were injured. Koikos filed an action against its insurer, Travelers Insurance Company (Travelers) seeking declaratory relief. The case was removed to federal court. The federal district court granted summary judgment for Travelers, holding that the shooting incident amounted to one occurrence under the policy. Koikos appealed. The Eleventh Circuit certified the question to the Florida Supreme Court, and the Court concluded that each shooting of a separate victim constituted a separate occurrence. The Court held that “it is the act that causes the damage, which is neither expected nor intended, from the standpoint of the insured, that constitutes the ‘occurrence.’” The Court also rejected Travelers’ argument that all of the shots should be considered one occurrence because of the close proximity in time and space of the individual shots fired, concluding:

[Ujsing the number of shots fired as the basis for the number of occurrences is appropriate because each individual shooting is distinguishable in time and space.

Id. at 272.

In this case, the immediate injury-producing acts were the dog bites, and the dog bite that inflicted the injuries to Maddox was not the same dog bite that inflicted the injuries to Ivan. Therefore, each dog bite was a separate occurrence.

While Florida Farm Bureau argues that the “dog attack” constituted one occurrence, the Koikos Court rejected a similar argument, concluding that there was no unambiguous language in the policy to put “Koikos on notice that ‘a series of similar causes’ would be considered one occurrence.” 849 So.2d at 273. The Court further stated that the policy’s definition of occurrence was susceptible to two reasonable interpretations (specifically, that the “ ‘[ojccurrence’ can reasonably be stated to refer to the entire shooting spree or to each separate shot that resulted in a separate injury to a separate victim.”). Therefore, the policy must be construed in favor of the insured. See State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998) (explaining that where policy language is subject to differing interpretations the language “should be construed liberally in favor of the insured and strictly against the insurer.”).

Likewise, in this case, it is reasonable to construe the occurrence as the entire dog attack or as each separate dog bite. Because ambiguous provisions must be construed against the insurer, the occurrence language in the instant policy must be construed as meaning each separate dog bite that resulted in a separate injury to a separate victim was a separate occurrence. For these reasons, the trial court erred in holding that the injuries which Maddox and Ivan sustained were not separate occurrences under Bullard’s policy.

In closing, we hold that, with respect to paragraph two of the final judgment which relates to intentional infliction of emotional distress, the trial court properly granted declaratory relief for Florida Farm Bureau.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, J., concurs specially, with opinion.

BERGER, J., concurs in part and dissents in part, with opinion.

ORFINGER, J.,

concurring specially with opinion.

I concur with the majority opinion. I write separately to address the argument made in Judge Berger’s thoughtful dissent.

The facts of this case are not in dispute. Bullard’s dog, Dixie, attacked Ivan, a young child. As Bullard and Maddox, Ivan’s mother, tried to get Dixie to release her grip on Ivan’s face, Dixie attacked Maddox. Both Ivan and Maddox sustained injuries from the dog bites. The dispute here centers on whether this constitutes one or two “oecurrence(s)” under Florida Farm Bureau’s policy. I agree that this case is controlled by the supreme court’s decision in Koikos v. Travelers Insurance Co., 849 So.2d 263 (Fla.2003).

In Koikos, two people were shot by an assailant who fired multiple times in a restaurant. They filed separate lawsuits against Koikos, the restaurant’s owner, claiming that he negligently failed to provide adequate security at his restaurant. Koikos, in turn, sued his insurer, Travelers, in a declaratory judgment action. Koikos argued in favor of finding multiple occurrences under the policy, contending that the determination of the number of occurrences should be based on the immediate cause of the injuries — the gunshots. In contrast, Travelers argued that the focus should be on Koikos’s underlying negligence — his alleged failure to provide appropriate security. Koikos, 849 So.2d at 265, 267. The supreme court held that the proper focus should be on “the act that causes the damage,” the gunshots, not Koi-kos’s failure to protect his patrons. “Focusing on the immediate cause-that is the act that causes the damage — rather than the underlying tort-that is the insured’s negligence — is also consistent with the interpretation of other forms of insurance policies.” Id. at 271. In its opinion, the supreme court agreed with this Court’s decision in American Indemnity Co. v. McQuaig, 435 So.2d 414 (Fla. 5th DCA 1983), which held that consistent with the “cause theory,” an “occurrence” is the immediate injury-producing act and not the underlying tortious omission. Id. Consequently, “[t]he act which causes the damage constitutes the occurrence.” Phillips v. Ostrer, 481 So.2d 1241, 1247 (Fla. 3d DCA 1985); see New Hampshire Ins. Co. v. RLI Ins. Co., 807 So.2d 171 (Fla. 3d DCA 2002).

In Koikos, the gunshots, not the negligent security, directly caused the injury to the plaintiffs. Likewise, in McQuaig, the immediate cause of the plaintiffs’ injuries were the gunshots, not the shooter’s insanity. Similarly here, the “immediate cause” of the injuries to Ivan and Maddox was Dixie’s attacks, not Bullard’s underlying negligence of failing to control his dog, although that was, no doubt, a factor.

The dissent points to two authorities from other jurisdictions that might, if controlling, lead us to conclude that only one occurrence occurred here. Indeed, the state and federal courts have struggled with this issue and reached varying conclusions on the seemingly straightforward question of what constitutes a single “occurrence” within the meaning of an insurance policy. See generally Michael P. Sullivan, Annotation, What Constitutes Single Accident or Occurrence Within Liability Policy Limiting Insurer’s Liability to a Specified Amount Per Accident or Occurrence, 64 A.L.R.4th 668 (1988). Nonetheless, unless our supreme court recedes from Koikos, I believe the majority opinion is correct.

BERGER, J.,

concurring in part and dissenting in part.

I agree with the majority that the trial court properly granted declaratory relief for Florida Farm Bureau on Crystal Maddox’s claim for emotional distress. However, I do not agree that the injuries sustained by Maddox and her son, during a single dog attack, constituted two occurrences under Bullard’s homeowners insurance policy. In my view, the dog attack was the sole “proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damages” to both Maddox and her son and, thus, constituted only one occurrence under the policy. See Am. Indem. Co. v. McQuaig, 435 So.2d 414, 415 (Fla. 5th DCA 1983).

The Florida Supreme Court has adopted the cause theory when analyzing whether more than one occurrence has taken place under an insurance policy. See Koikos v. Travelers Ins. Co., 849 So.2d 263, 271 (Fla.2003). Under this theory, “[i]t is the act that causes the damage, which is neither expected nor intended from the standpoint of the insured, that constitutes the ‘occurrence.’ ” Id.

While the majority is correct that the cause theory must be applied in this case, I am not convinced that Koikos, or McQuaig upon which it relies, requires reversal.

Both Koikos and McQuaig involved individual tortfeasors firing multiple gunshots resulting in injury. In McQuaig, the insured, who claimed insanity, fired several shotgun blasts within a two-minute period that injured two people. 435 So.2d at 415. Utilizing the cause theory, this court held that each shotgun blast was a separate occurrence. Id. at 416. However, we noted that the result would have been different if “there was a single force, [such as one shot striking multiple people] that once set in motion caused multiple injuries.” Id. at 415.

In Koikos, the shooter was not the insured, but rather a third-party tortfeasor. 849 So.2d at 265. Relying on the McQuaig approach, the Florida Supreme Court concluded:

[CJonsistent with the “cause theory” that in the absence of clear language to the contrary, when the insured is being sued for negligent failure to provide security, “occurrence” is defined by the immediate injury-producing act and not by the underlying tortious omission. Thus, in this case, the immediate causes of the injuries were the intervening intentional acts of the third party — the intruder’s gunshots.

Id. at 271-72.

Had the injuries to Maddox and her son been caused by the intentional acts of Bul-lard or some other individual, I would agree with the majority that, based on Koikos, each act resulting in injury would constitute a separate occurrence. However, those are not the facts in this case. Maddox and her son were not injured by another person, they were injured by a dog, the insured’s property, during a single, uncontrollable attack. See Helmy v. Swigert, 662 So.2d 895 (Fla. 5th DCA 1995) (“Under Florida law, a dog is considered to be personal property.”). Indeed, the record reflects the dog in this case was out of control from the time it first bit Maddox’s son, through the time it bit Maddox in her effort to stop the attack, until the time Maddox and her son were able to flee to safety. Accordingly, much like the cases involving out of control motor vehicles, the dog attack in this case was the single force, that once set in motion caused the injury to Maddox and her son. See McQuaig, 435 So.2d at 415; see also Truck Ins. Exch. v. Rohde, 49 Wash.2d 465, 303 P.2d 659 (1956) (injuries to three motorcyclists from motorist who veered into echelon constituted one occurrence); St. Paul-Mercury Indem. Co. v. Rutland, 225 F.2d 689 (5th Cir.1955) (truck colliding with train, damaging sixteen cars belonging to fourteen owners, is one occurrence).

This view is consistent with the cause theory outlined in Koikos and McQuaig. Here, the cause of the injury was the dog attack, the effect of the attack was the injury to Maddox and her son. Since Florida does not follow the “effect theory,” I believe the trial court was correct in determining the injuries to Maddox and her son were the result of one occurrence.

      . “Under the minority view, or 'effect' theory, the courts have held that the ‘per accident’ clause in insurance policies is to be construed as referring to the result or effect of the accident on the persons injured or damaged and not as referring to the cause of the accident.” McQuaig, 435 So.2d at 415 n. 1.

      . Based on the specific facts of this case, I find no ambiguity in the insurance contract.


text:
    Robert Scott CHANDLER, Appellant, v. CITY OF SANFORD and Janet R. Dougherty, etc., Appellee.
    No. 5D12-3735.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 2013.

      Paul R. McAdoo, Gregg D. Thomas, and Sarah R. Craig, of Thomas & Locicero PL, Tampa, for Appellant.
    Lamar D. Oxford and Joseph R. Flood, Jr., of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellee.
   RODRIGUEZ, HEATHER PINDER, Associate Judge.

This appeal involves the question of whether a governmental entity may assert a public records exemption on behalf or at the direction of another governmental entity. We answer the question in the negative and reverse.

The instant appeal arises out of the trial court’s dismissal of a pro se petition for writ of mandamus and is reviewable on direct appeal. See Fla. R.App. P. 9.030(b)(1)(a); see also Mazer v. Orange Cnty., 811 So.2d 857, 858 (Fla. 5th DCA 2002). This Court reviews such orders under the de novo standard of review. Mazer, 811 So.2d at 859.

On May 24, 2012, Appellant, Robert Chandler, made an electronic public records request to the City of Sanford Police Department’s Volunteer Program Coordinator (“Coordinator”) requesting an original copy of an August 31, 2011 email sent by the Coordinator to George Zimmerman, a former neighborhood watch volunteer. At the time of the request, Mr. Zimmerman was a defendant in an active criminal investigation and prosecution related to the shooting, and ultimate death, of Tray-von Martin on February 26, 2012. The case promptly generated widespread national media attention and many local governmental entities were inundated with public records requests. Moreover, at the direction of the Governor for the State of Florida, the investigation and prosecution of Mr. Zimmerman was transferred from the local State Attorney’s Office for the Eighteenth Judicial Circuit to the State Attorney’s Office for the Fourth Judicial Circuit (“State Attorney”).

On May 25, 2012, the day after he first submitted his electronic request for the August 81, 2011 email, Chandler contacted the Coordinator by telephone and renewed his request. On June 2, 2012, Chandler contacted the attorney for the City of Sanford (“City”) and exchanged several emails with a City police department captain regarding his request. On June 6, 2012— eleven days from the date of his original request — Chandler received an email from the City advising that it was reviewing his request for processing.

On June 14, 2012, Chandler filed a pro se petition for writ of mandamus against the City (“Petition”) demanding the production of the requested records. The following day, the trial court issued an “Order Directing Petitioner to File Proof of Service and Respondents to Show Cause or File Responsive Pleading,” which each party subsequently responded to during the pendency of the case.

On June 21, 2012, the City produced to Chandler a number of August 31, 2011 emails between the Coordinator and Mr. Zimmerman in Adobe Portable Document Format (“.PDF”) and redacted Mr. Zimmerman’s email address from them. There were no other asserted redactions to the emails. At the time the redacted records were produced, the City had not been served with the Petition.

Chandler objected that the records produced were not responsive nor did they conform with the requirements of Florida’s Public Records Laws. Specifically, Chandler asserted that the City did not have the right to redact Mr. Zimmerman’s email address from the records, and was required to produce the records in the manner they were normally maintained, not as .PDF documents that could not be modified or edited.

In its defense, the City advised Chandler that it was unable to produce the requested records in their original, un-redacted format pursuant to a directive from the State Attorney. The City further advised that all of its records related to Mr. Zimmerman had been turned over to the State Attorney as part of the criminal investigation and prosecution of Mr. Zimmerman. The State Attorney then reviewed and redacted these records and returned the redacted records to the City as .PDFs purportedly for use in responding to public records requests. The City asserted that pursuant to the State Attorney’s directive and the ongoing criminal investigation and prosecution, the City did not have authority to release the original records.

On August 10, 2012, the trial court held a status hearing on the Petition. At the hearing, the City initially requested a continuance to depose Chandler and subpoena State Attorney representatives to testify at a future hearing regarding the State Attorney’s asserted exemptions. In lieu of granting the continuance, the trial court inquired if the City still possessed the original emails. The city attorney was unsure if the City still possessed the original records and reminded the trial court that the City was nevertheless under a directive from the State Attorney not to disclose the original emails.

Based on the foregoing, and without an evidentiary hearing, the trial court found that the State Attorney, not the City, was the proper party to the Petition and dismissed the Petition against the City. In so doing, the trial court advised Chandler that he was free to pursue his remedy against the State Attorney as it was the party that redacted the records and ordered dissemination of the revised public record. This appeal by Chandler ensued.

The Florida Constitution requires that the public have full access to public records, which includes any “public record made or received in connection with the official business of any public body, officer, or employee of the state.” Art. I, § 24, Fla. Const. This constitutional right of public access to government records is “virtually unfettered” save for certain constitutional and statutory exemptions. Remeses, Inc. v. Demings, 29 So.3d 418, 421 (Fla. 5th DCA 2010). As repeatedly recognized by this court and others, courts must construe the public records law “liberally in favor of openness and any exemptions from disclosure are construed narrowly and limited to their designated purpose.” Id.; Nat’l Collegiate Athletic Ass’n v. Associated Press, 18 So.3d 1201, 1206 (Fla. 1st DCA 2009) (“The right to inspect a public record in Florida is not one that is merely established by legislation, it is a right demanded by the people.... Florida courts construe the public records law liberally in favor of the state’s policy of open government.”); see also Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007); WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004); City of Riviera Beach v. Barfield, 642 So.2d 1135, 1136 (Fla. 4th DCA 1994).

Given the aggressive nature of the public’s right to inspect and duplicate public records, a governmental agency may not avoid a public records request by transferring custody of its records to another agency. See Tober v. Sanchez, 417 So.2d 1053, 1054 (Fla. 3d DCA 1982). In the case at bar, the City asserts that it was under an order from the executive branch, specifically the State Attorney, not to produce the original, unredacted email. However, despite this instruction from the State Attorney, as a matter of law, the City remained the governmental entity responsible for the public records. While the court is sympathetic that the City was placed between a proverbial “rock and a hard place,” the City cannot be relieved of its legal responsibility for the public records by transferring the records to another agency.

As set forth in Tober, “[t]o permit an agency head to avoid his responsibility simply by transferring documents to another agency or office would violate the stated intent of the Public Records Act, as well as the rule that a statute enacted for the benefit of the public is to be accorded a liberal construction.” Tober, 417 So.2d at 1054; see also City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971).

Accordingly, we hold the trial court erred when it dismissed Chandler’s petition. We decline to address the other issues argued in the trial court proceedings and on appeal, including the asserted exemptions, the alleged delays in producing the electronic records, and the form in which they were produced. The order is vacated and the case remanded to the trial court for further proceedings.

VACATED and REMANDED.

COHEN and WALLIS, JJ„ concur.

      . Although Mr. Zimmerman was found not guilty by the jury on July 13, 2013 — three days prior to the oral argument in this appeal — neither party asserts, nor does this Court find that the issue is moot.


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    Quinten WALDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3477.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 2013.
    Rehearing Denied Oct. 15, 2013.

      Quinten Walden, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We reverse the trial court’s order denying appellant’s Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence and remand for resentencing. Appellant’s forty-year sentence for attempted second degree murder with a firearm exceeds the thirty-year statutory maximum for this first-degree felony offense. Wiley v. State, — So.3d -(Fla. 4th DCA 2013); Sheppard v. State, 113 So.3d 148, 149 (Fla. 2d DCA 2013); McLeod v. State, 52 So.3d 784, 786 (Fla. 5th DCA 2010); Wooden v. State, 42 So.3d 837 (Fla. 5th DCA), rev. denied, 51 So.3d 466 (Fla.2010).

Although we affirmed this claim without discussion in Walden v. State, 57 So.3d 248, 249 (Fla. 4th DCA 2011), the manifest injustice exception to the law of the case doctrine applies. See State v. McBride, 848 So.2d 287, 289-90 (Fla.2003).

Reversed and remanded.

DAMOORGIAN, C.J., FORST and KLINGENSMITH, JJ., concur.


text:
    Jonathan Raymond NEWMAN, Former Husband, Appellant, v. Charlotte Lee NEWMAN, Wife, Appellee.
    No. 1D12-5998.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2013.
    Alexa K. Alvarez of Alvarez & Wallace, P.A., Fernandina Beach, for Appellant.
    Arthur I. Jacobs of Jacobs Scholz & Associates, LLC, Fernandina Beach, for Appellee.
   PER CURIAM.

Appellant, the former husband, appeals a final judgment of dissolution of marriage and raises four issues on appeal, only one of which warrants reversal and remand. Although we reject Appellant’s argument that the trial court erred in determining that Appellee, the former wife, was entitled to attorney’s fees, we agree that the trial court, which found that the hourly rate and number of hours claimed by Ap-pellee’s attorney were reasonable, erred in awarding fees and costs without conducting a hearing and giving Appellant the opportunity to dispute the reasonableness of the attorney’s hourly rate and time claimed. See Giovanini v. Giovanini, 89 So.3d 280, 282 (Fla. 1st DCA 2012) (noting in part that absent a stipulation, a party seeking attorney’s fees must prove with evidence at an evidentiary hearing the reasonableness of the fee sought); Duncan v. Duncan, 642 So.2d 1167, 1169 (Fla. 4th DCA 1994) (holding that the trial court erroneously awarded temporary attorney’s fees and costs without determining that the amounts sought were reasonable and without giving the appellant an opportunity to challenge their reasonableness); Broyles v. Broyles, 573 So.2d 357, 361 (Fla. 5th DCA 1990) (noting that a trial court must give notice to a party against whom an attorney’s fee award will be made and afford an opportunity to review and rebut the reasonableness of any amount claimed).

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ„ concur.


text:
    Kristin BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3330.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 2013.
    Kristin Brown, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We reverse the trial court’s order denying appellant’s emergency motion to correct illegal sentence. The motion claimed that the court failed to check the prison credit box on her sentence and that as a result the Department of Corrections has failed to grant her credit for the 252 days that she previously served in prison before the revocation of the probationary portion of her split youthful offender sentence in this case. The State concedes that remand is necessary.

A defendant is entitled to credit for time served in prison prior to a violation of probation under a split sentence. Layman v. State, 787 So.2d 44, 45 (Fla. 2d DCA 2001) (citing Singletary v. Slay, 688 So.2d 319 (Fla.1997), and Steele v. State, 733 So.2d 1117 (Fla. 4th DCA 1999)). It is well-settled that a court’s failure to check the prison credit box — which directs the Department of Corrections to calculate the amount of prison credit-can be raised in a rule 3.800(a) motion. E.g., Criswell v. State, 942 So.2d 1029, 1030 (Fla. 4th DCA 2006); Johnson v. State, 881 So.2d 88, 88 (Fla. 5th DCA 2004); Swain v. State, 845 So.2d 314, 315 (Fla. 2d DCA 2003).

Because appellant appears entitled to immediate release from prison if awarded this credit, we remand with directions that the trial court immediately address this matter. The court shall enter an order explaining why appellant is not entitled to her prior prison credit or shall enter a corrected sentence and immediately transmit the corrected sentence to the Department of Corrections.

Reversed and Remanded.

DAMOORGIAN, C.J., TAYLOR and KLINGENSMITH, JJ., concur.


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    INDIAN RIVER AUTO PARTS, LLC, et al., Appellant, v. BRANCH BANKING & TRUST COMPANY, Appellee.
    No. 4D12-3053.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 2013.
    Jeff Tomberg of Tomberg & Halper, LLC, Boynton Beach, for appellant.
    W. Glenn Jensen, Shayne A. Thomas and Christopher D. Donovan of Roetzel & Andress, LPA, Orlando, for appellee.
   PER CURIAM.

Affirmed. See § 679.604(1)(b), Fla. Stat. (2012).

WARNER, CIKLIN and GERBER, JJ., concur.


text:
    Maria SCAROLA, Appellant, v. LITTON LOAN SERVICING, L.P.; Unknown Spouse of Maria C. Scarola if any; any and all Unknown Parties Claiming by, through, under, and against the Herein Named Individual Defendant(s) Who are Not Known to be Dead or Alive, Whether said Unknown Parties may claim an interest as Spouses, Heirs, Devisees, Grantees or Other Claimants; Mortgage Electronic Registration Systems, Inc., John Doe and Jane Doe has Unknown Tenants in Possession, Appellees.
    No. 4D12-2592.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 2013.

      Andrea H. Dueñas of the Law Office A. Dueñas, P.A., Lantana, and Brian Korte of Korte & Wortman, P.A., West Palm Beach, for appellant.
    Jeremy W. Harris of Morris, Laing, Evans, Brock & Kennedy, CHTD, Wichita, Kansas, for appellee Litton Loan Servicing, L.P.
   PER CURIAM.

Affirmed. See Stockman v. Downs, 573 So.2d 835 (Fla.1991).

WARNER, CIKLIN and GERBER, JJ., concur.


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    Irma REGIS v. DEPARTMENT OF POLICE.
    No. 2013-C-1124.
    Supreme Court of Louisiana.
    June 28, 2013.
   PER CURIAM.

| Writ granted. The judgment of the Court of Appeal is reversed and the Civil Service Commission’s ruling is reinstated.

The New Orleans Police Department (“NOPD”) issued a letter of reprimand to Sgt. Irma Regis, finding she violated NOPD rules requiring employees’ adherence to state law, by placing a window tint on her personal vehicle in violation of La. Rev.Stat. § 32:361.1(B). The Civil Service Commission (“Commission”) denied Re-gis’s appeal. The Court of Appeal reversed, finding the NOPD failed to prove Regis’s actions impaired the efficient operation of the NOPD.

An employee with permanent status in the classified civil service cannot be subject to disciplinary action by his employer except for cause expressed in writing. La. Const, art. X, § 8(A); Lange v. Orleans Levee Dist., 10-0140, p. 2 n. 2 (La.11/30/10); 56 So.3d 925, 928 n. 2. Legal “cause” for disciplinary action exists 1 ¿when the employee’s conduct “impairs the efficient or orderly operation of the public service.” Civil Service Rule 1.5.2.01; AFSCME, Council # 17 v. State ex rel. Dep’t of Health & Hosp., 01-0422, p. 8 (La.6/29/01); 789 So.2d 1263, 1268. The appointing authority must prove, by a preponderance of the evidence, the occurrence of the complained of activity and that the conduct did in fact impair the efficient and orderly operation of the public service. See Newman v. Dep’t of Fire, 425 So.2d 753, 754 (La.1983). An appellate court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. Bannister v. Dep’t of Streets, 95-404, p. 8 (La.1/16/96); 666 So.2d 641, 647. “Arbitrary or capricious” means the absence of a rational basis for the action taken. Id.

In the instant case, the record contains sufficient evidence to support the letter of reprimand. The NOPD proved the occurrence of the complained of activity as Re-gis acknowledged her window tint was in violation of La.Rev.Stat. § 32:361.1(B) and that she had not received an exemption sticker from the Louisiana State Police.

Additionally, Regis’s conduct “impaired the efficiency” of the NOPD and “bears a real and substantial relationship to [its] efficient operation.” Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). Police officers are charged with enforcing the motor vehicle and traffic laws; “a police officer’s failure to comply with the laws thus gravely impairs the efficiency of the department.” Davis v. Dep’t of Police, 590 So.2d 850, 852 (La. App. 4 Cir.1991) (affirming discipline for an officer who caused a traffic accident). When an officer violates the law, “it casts doubt upon the credibility of the [police department] to ably conduct one of its principal functions.” Berry v. Dep’t of Pub. Safety & Corr., 01-2186, p. 13 (La. App. 1 Cir. 9/27/02); 835 So.2d 606, 615 (affirming discipline for a state trooper for failing to report earnings from off-duty details in violation of |3federal tax law); see Thornabar v. Dep’t of Police, 08-0464, p. 4 (La.App. 4 Cir. 10/15/08); 997 So.2d 75, 78 (officer’s failure to honor a court’s subpoena impaired the efficiency of the NOPD as it had “the appearance of a constructive contempt of court.”); Cittadino, 558 So.2d at 1316 (officer, by offering to sell illegal poker machines, impaired the efficient operation of the NOPD). Moreover, since the public puts its trust in the police department as a guardian of its safety, it is essential the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. See Newman, 425 So.2d at 756. Accordingly, the Civil Service Commission’s decision was not “arbitrary or capricious,” and the Commission properly denied Regis’s appeal.

Therefore, the judgment of the Court of Appeal is reversed and the Civil Service Commission’s ruling is reinstated.

REVERSED; CIVIL SERVICE COMMISSION JUDGMENT REINSTATED.

WEIMER, J., would grant and docket.

      . NOPD Operations Manual Rule 2: Moral Conduct, paragraph l-"Adherence to Law,” provides:
      Employees shall act in accordance with the constitutions, statutes, ordinances, administrative regulations, and the official interpretations thereof, of the United States, the State of Louisiana, and the City of New Orleans, but when in another jurisdiction shall obey the applicable laws. Neither ignorance of the law, its interpretations, nor failure to be physically arrested and charged, shall be regarded as a valid defense against the requirements of this rule.


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    In re E. Lynn SINGLETON.
    No. 2013-OB-0876.
    Supreme Court of Louisiana.
    July 16, 2013.
   LORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel, and the findings and recommendation of the hearing committee,

IT IS ORDERED that E. Lynn Singleton, Louisiana Bar Roll number 12102, be and he hereby is transferred to disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C).

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

KNOLL, J., recused.

FOR THE COURT:

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