author: ALTENBERND, Judge.

text:
    J.C.S. and J.S.S., Appellants, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 2D13-3232.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2014.
    J.C.S. and J.S.S., pro se.
    Justin Senior, General Counsel, and Cynthia L. Hain, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   ALTENBERND, Judge.

J.C.S. and her husband, J.S.S., appeal a final administrative order that addresses J.C.S.’s health maintenance organization’s failure to provide plan benefits within the contractual time requirements for eligible Medicaid recipients. The relevant contract was entered into between the State of Florida, Agency for Health Care Administration (“AHCA”), and J.C.S.’s HMO, Wellcare of Florida, Inc., d/b/a Staywell Health Plan of Florida (“Staywell”). We affirm.

In pertinent part, the hearing officer found that Staywell had ultimately secured certain appointments for J.C.S. but that it had not secured these appointments in a timely fashion. The hearing officer concluded, however, that he lacked authority to enter a penalty for Staywell’s failure to provide timely appointments. AHCA argues that the hearing officer’s order was not adverse to either J.C.S. or J.S.S. and, therefore, the appeal must be dismissed as to both appellants because neither has standing to appeal. AHCA cites case law that lends some support to its argument. See, e.g., Bodenstab v. Dep’t of Prof'l Regulation, 648 So.2d 742, 742 (Fla. 1st DCA 1994) (“Because the appellant has not been adversely affected by the Board’s action, we dismiss the appeal for lack of standing”).

Athough the order is facially favorable to J.C.S. and J.S.S., they argue that the hearing officer erred in failing to give them additional relief. In essence, their claim is that they were adversely affected by the omission of additional relief. We conclude that at least J.C.S. has standing to raise these issues in this court.

We have reviewed the record and the applicable law. We further conclude that the hearing officer granted J.C.S. and J.S.S. all of the relief that the hearing officer was empowered to provide. In this administrative proceeding, the relevant law simply did not create a claim or provide any right for J.C.S. or J.S.S. to receive the additional remedies or relief that they listed in the initial brief filed with this court. Furthermore, this court cannot grant them relief on claims they raise concerning other matters that occurred subsequent to the entry of this administrative order because they were not the subject of this administrative proceeding and they are not properly before this court.

Affirmed.

KELLY and BLACK, JJ., Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Jose Antonio VAZQUEZ, Appellant, v. Rossy VAZQUEZ-ROBELLEDO, Appellee.
    No. 2D14-1084.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2014.

      Steven Glaros and Joy Ann Demas of Steven Glaros and Associates, P.A., Tampa, for Appellant.
    Roddy B. Lanigan, Winter Park, for Ap-pellee.
   SILBERMAN, Judge.

In the midst of a very contentious divorce, Jose Antonio Vazquez (the Husband) received military orders assigning him to a post in Norfolk, Virginia. At this point in the proceedings, the Husband had majority time-sharing with the parties’ two young children and Rossy Vazquez-Robel-ledo (the Wife) had limited visitation at a supervised visitation center. It was clear that the visits with the Wife were traumatizing the children, but it was unclear whether the trauma resulted from the alleged physical abuse by the Wife or the alleged parental alienation by the Husband. Thus, the trial court was faced with an extremely difficult decision when the Husband filed a petition to temporarily relocate with the children to Virginia. The trial court granted the petition, awarded the Wife monthly supervised overnight time-sharing, and issued rulings on other related matters. The Husband challenges portions of the trial court’s order. We affirm in part and reverse in part.

The Husband did not receive a great deal of notice regarding his reassignment, and the hearings on the Husband’s petition were conducted just days before the Husband’s departure date. The parties’ experts therefore had not had the opportunity to conduct complete evaluations of the parties. There was no dispute that the Wife’s supervised time-sharing had completely broken down and that she had not had visitation for many months. Both experts agreed that the children needed additional evaluation and therapy. But the experts disagreed regarding the cause of the children’s trauma. The Wife’s expert testified that she had seen little indication of physical abuse by the Wife and that the children’s trauma may be the result of parental alienation by the Husband. The Husband’s expert testified that the trau-matization may have resulted from physical abuse by the Wife.

The trial court observed that neither party had established their respective allegations of alienation or abuse. However, it determined that the evidence supported relocation and granted the Husband’s petition to temporarily relocate. The court also awarded the Husband temporary majority time-sharing. The court recognized that relocation would make reunification with the Wife even more difficult so it ordered daily phone contact between the Wife and children and awarded the Wife time-sharing for one weekend a month. The Wife’s time-sharing would be supervised by the Wife’s mother (the Grandmother) at her home in Orlando. The court ordered the Wife to select a counsel- or and schedule monthly counseling sessions with the children during her time-sharing, and it required the parties to split the costs of counseling equally. Among other things, the court also ordered the Husband to submit to a psychological evaluation, ordered the Husband to pay $500 monthly toward his share of counseling expenses for the Wife and children, and denied the Husband’s request to discharge the guardian ad litem (GAL).

On appeal, the Husband argues that the trial court abused its discretion in awarding the Wife overnight time-sharing to be supervised by the Grandmother. The Husband also challenges the psychological evaluation requirement, the $500 monthly counseling payment, and the denial of his motion to discharge the GAL. We affirm the psychological evaluation requirement and the denial of the motion to discharge the GAL without further discussion. However, we reverse the award of overnight time-sharing and the $500 monthly payment requirement because they are not supported by the evidence.

Section 61.13(3), Florida Statutes (2013), provides that the primary consideration in establishing a time-sharing schedule shall be the best interests of the children. The record does not contain any evidence that the monthly overnight visits with the Wife are in the children’s best interests. In fact, the record contains evidence that the children exhibited fear of the Wife, they had not seen the Wife in months, and prior supervised visits with her were difficult and generally unsuccessful. It appears that the children were traumatized, and there is no evidence to suggest that the children could endure supervised time-sharing at the Grandmother’s home for an entire weekend. Furthermore, there was no evidence as to the Grandmother’s ability or desire to supervise the overnight time-sharing at her home.

As to the $500 monthly counseling payment, the order on appeal requires the Husband to make the payment “to [the] Wife’s attorney’s trust fund to cover his share of counseling expenses.” The order finds that the Husband has the ability to pay this “security deposit” and cites section 61.13001(6)(d), as authority for this provision. The Husband argues the provision is not authorized by section 61.13001(6)(d) because the court orally declined to require the Husband to post a security bond under that provision. He also argues that there was no testimony regarding the cost of counseling to support the $500 payment.

Section 61.13001(6)(d) authorizes a court that approves a temporary relocation to “require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that the court-ordered contact with the child not be interrupted or interfered with by the relocating party.” The Husband is correct that the trial court orally assured the Husband that he would not be required to post a bond under this provision. And while the court’s order refers to a “security deposit” and cites to section 61.13001(6)(d), it specifies that the $500 monthly payment is for “counseling and other related costs,” not security.

of whether the court mischaracterized the $500 monthly pay-payas a security deposit, we recognize that the court had the discretion and in-into require the Husband to pay half of the children’s psychological counseling fees. See § 61.13(l)(b): But even if the $500 monthly payment requirement was properly characterized as such, we must reverse that portion of the order because there was no evidence regarding the cost of counseling and “related costs.” See Dinsmore v. Dinsmore, 623 So.2d 638, 638 (Fla. 1st DCA 1993) (affirming the award of $4003.15 in medical expenses because it was supported by competent, substantial evidence).

In summary, we affirm the order on appeal with the exception of the provisions awarding the Wife monthly supervised overnight time-sharing and requiring the Husband to make a $500 monthly deposit towards unknown counseling expenses. On remand, the court shall reconsider the Wife’s temporary time-sharing schedule. The court may receive additional evidence on this issue if it deems it appropriate.

Affirmed in part, reversed in part, and remanded.

WALLACE and BLACK, JJ., Concur.


text:
    Robert Lee HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2770.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2014.

      Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Robert Lee Harrell ended an altercation with a man who was intent on starting a fistfight by pulling out a gun and shooting him. He now seeks, review of his judgment and sentences for aggravated battery, possession of a firearm by a convicted felon, and carrying a concealed firearm. On appeal Harrell challenges (1) the constitutionality of sections 790.23 and 790.01(2), Florida Statutes (2009), (2) the denial of his motion to dismiss under the Stand Your Ground law, and (3) the reclassification of the aggravated battery offense based on the use of a weapon. We affirm Harrell’s convictions but reverse his sentences due to the improper reclassification of the aggravated battery offense.

I. Constitutionality Challenge

Harrell argues that he is entitled to have his firearm convictions vacated bé-cause sections 790.23 and 790.01(2) are unconstitutionally vague based on their failure to apprise whether a certain type of antique firearm is included therein. We reject this constitutionality challenge because the evidence established that Harrell possessed a modern firearm, as opposed to an antique or replica firearm. See K.C. v. State, 147' So.3d 552, 553 (Fla. 2d DCA 2014); Walker v. State, 137 So.3d 594, 595 (Fla. 2d DCA 2014).

II. Motion to Dismiss Under the Stand Your Ground Law

In his motion to dismiss, Harrell argued that he was entitled to immunity from prosecution under the Stand Your Ground law as codified in sections 776.032 and 776.013(3), Florida Statutes (2009). The trial court denied the motion based on its conclusion that it was not necessary for Harrell to discharge the firearm to prevent imminent bodily harm because of the distance between Harrell and the victim. The court alternatively ruled that Harrell was not entitled to immunity because he was engaged in unlawful activity as a felon in possession of a firearm.

On appeal, Harrell argues that the trial court erred by placing the burden of proving the justifiable use of deadly force on Harrell. Harrell recognizes that the supreme court has stated that the defendant must “show[ ] by a preponderance of the evidence that the immunity attaches.” Dennis v. State, 51 So.3d 456, 460 (Fla.2010). However, Harrell argues that this court' should certify a question of great public importance regarding whether the supreme court actually meant to place the burden of proving entitlement to immunity on the defendant.

Harrell cites to Bretherick v. State, 135 So.3d 337, 341 (Fla. 5th DCA 2013), review granted, No. SC13-2312, 2014 WL 1659779 (Fla. Apr. 15, 2014), in which the Fifth District held that the defendant had the burden of proof under Dennis but certified the following question:

ONCE THE DEFENSE SATISFIES THE INITIAL BURDEN OF RAISING THE ISSUE, DOES THE STATE HAVE THE BURDEN OF DISPROVING A DEFENDANT’S ENTITLEMENT TO SELF-DEFENSE IMMU- . NITY AT A PRETRIAL HEARING AS IT DOES AT TRIAL?

Harrell argues that the supreme court would answer this question in the affirmative. He points to the following reasoning in Associate Judge Schumann’s specially concurring opinion in Bretherick:

Placing the burden of proof on the State at the pretrial hearing on a motion to dismiss based on self-defense immunity gives meaning to the grant of immunity at the earliest stages of criminal proceedings, defined to include arrest, detention, filing of charges, and prosecution. This interpretation recognizes the distinction between an assertion of a broad grant of immunity from criminal prosecution and more prosaic pretrial pleadings. It avoids a confusing shift of the burden of proof from the defense in a pretrial hearing to the State at trial. If the State is unable to sustain its lesser burden of proof at a pretrial hearing, then it would be unable to prove its case beyond a reasonable doubt at trial.

Id. at 344 (Schumann, Associate Judge, concurring specially). We are not persuaded that this reasoning would lead the supreme court to rethink its decision in Dennis, which squarely decided the issue. Therefore, we decline to certify the question.

Harrell also argues that the trial court applied the incorrect standard because section 776.013(3) does not expressly require imminent harm. Harrell cites to this court’s recent decision in Little v. State, 111 So.3d 214, 221 (Fla. 2d DCA 2018), to support his argument. In Little, this court did note the omission of the term “imminent” from section 776.013(3). Little, 111 So.3d at 221. But this court also concluded that section 776.013(3) only applied if the defendant was not engaged in unlawful activity. And being a felon in possession of a firearm constitutes unlawful activity. Little, 111 So.3d at 222. Thus, section 776.013(3) does not apply in this case.

III. Reclassification of the Aggravated Batterg Offense

The trial court reclassified the aggravated battery offense to a first-degree felony pursuant to section 775.087(l)(b), Florida Statutes (2009), which provides for reclassification “whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm.” Harrell argues that it was error to reclassify the offense because he was charged with aggravated battery with great bodily harm or a deadly weapon, the jury was instructed on both theories, and the verdict form referred to both theories but did not allow the jury to choose a theory. Thus, it was possible that Harrell was convicted for a felony in which the use of a weapon or firearm is an essential element.

The information charged Harrell with “aggravated battery (great bodily harm or deadly weapon) (firearm-discharge).” It alleged that Harrell

did unlawfully, actually, and intentionally touch or strike, or intentionally cause bodily harm to JOSEPH HARRIS, 'against his will, and in so doing did intentionally or knowingly cause great bodily harm, permanent disability or permanent disfigurement to the said JOSEPH HARRIS, or in so doing used a deadly weapon, to-wit: a firearm, and during the commission of the offense, ROBERT LEE HARRELL carried, displayed, used, threatened to use, or attempted to use a weapon, to-wit: a firearm, and actually possessed a firearm and discharged a firearm.

(Emphasis added.) The jury was also instructed in the disjunctive as follows:

To prove the crime of aggravated battery, the State must prove the following two elements beyond a reasonable doubt. The first element is the definition of batter [sic]. Number (1) Robert Lee Harrell intentionally touched or struck Joseph Harris against his will, or intentionally caused bodily harm to Joseph Harris. Number (2) Robert Lee Harrell, in committing the battery: (a) intentionally or knowingly caused great bodily harm to Joseph Harris, permanent disability to Joseph Harris, or permanent disfigurement to Joseph Harris, or used a deadly iveapon.

(Emphasis added.) The State argued both the great bodily harm and deadly weapon theories to the jury in closing argument. And the verdict form provided for a general verdict and was worded in the disjunctive as follows:

We, the jury, find as follows, as to Count I of the charge: (check only one as to this count)
x A. The defendant is guilty of Aggravated Battery With Great Bodily Harm or Deadly Weapon, as charged.
If you find the defendant guilty of Aggravated Battery With Great Bodily Harm or Deadly Weapon, you must further determine by your verdict whether during the commission of this crime (check only one, as applicable):
x The defendant did actually possess and discharge a firearm, or _ The defendant did actually possess but did not discharge a firearm, or
_ The defendant did not actually
possess and did not discharge a firearm.
_ B. The defendant is guilty of the
lesser included offense of Felony Battery.
_ C. The defendant is guilty of the
lesser included offense of Battery.
_ D. The defendant is not guilty.

(Emphasis added.)

The Florida Supreme Court has determined that the crime of aggravated battery causing great bodily harm is subject to enhancement under section 775.087(1) while the crime of aggravated battery with a deadly weapon is not. See Lareau v. State, 573 So.2d 813, 815 (Fla. 1991). While this appears to be a simple distinction, it is often muddled by instructing the jury on both methods of committing aggravated battery together. See, e.g., Webb v. State, 997 So.2d 469, 471 (Fla. 2d DCA 2008) (and cases cited therein). In order to support the enhancement under section 775.087(1), the jury must be given the option of finding the defendant guilty of aggravated battery with great bodily harm without also finding the defendant guilty of aggravated battery with a deadly weapon. Id.

Thus, it is reversible error to reclassify aggravated battery under section 775.087(1) when the jury is instructed that it may return a verdict for aggravated battery by either great bodily harm or the use of a deadly weapon and the verdict form does not reflect which theory is the basis for the conviction. Crawford v. State, 858 So.2d 1131, 1132 (Fla. 2d DCA 2003); Montgomery v. State, 704 So.2d 548, 550-51 (Fla. 1st DCA 1997). The possibility that the jury actually found the defendant guilty of aggravated battery with a deadly weapon precludes reclassification of the crime. Crawford, 858 So.2d at 1132; Montgomery, 704 So.2d at 551.

In conclusion, we reject Harrell’s challenges to the constitutionality of sections 790.23 and 790.01(2) and the denial of his motion to dismiss under the Stand Your Ground law. However, we conclude that the trial court erred in reclassifying the aggravated battery offense to a first-degree felony because the information, jury instructions, and verdict form allowed the jury to find Harrell guilty of aggravated battery using a deadly weapon. Accordingly, we affirm Harrell’s convictions but reverse and remand for resentencing.

Affirmed in part, reversed in part, and remanded.

KELLY and VILLANTI, JJ„ Concur.


author: KLINGENSMITH, J.

text:
    Rochelle GOLDBERG, Appellant, v. LAW OFFICE OF SARA LAWRENCE, P.A., et al., Appellees.
    No. 4D12-1736.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.

      Mark Bain of Mark Bain, P.A., Plantation, for appellant.
    Sara Lawrence and Frank Wolland, North Miami, for appellee Law Office of Sara Lawrence, P.A.
   KLINGENSMITH, J.

This case stems from a dissolution of marriage. Prior to the entry of the final judgment, Sara Lawrence (“respondent”) filed a notice of charging lien and requests for other relief against Rochelle Goldberg (“petitioner”), pursuant to the terms and conditions of the attorney-client retainer agreement contract she executed with petitioner. Respondent’s motion for charging lien was referred to a general magistrate, and petitioner timely filed her exceptions to recommendations contained in the magistrate’s report. The trial court subsequently entered an order denying petitioner’s exceptions, citing her failure to comply with Florida Family Law Rule of Procedure 12.490(g)(2), which required petitioner to provide opposing counsel with a copy of all pertinent transcripts and records before the hearing. Fla. Fam. L. R. P. 12.490(g)(2). Petitioner claims that her inadvertent failure to provide opposing counsel with a copy of the transcripts prior to the hearing did not merit dismissal of her exceptions. We agree.

Rule 12.490(g)(2) requires the party seeking review of a general magistrate’s order to deliver a transcript of all relevant proceedings to the judge and all other parties no less than forty-eight hours before the hearing on exceptions. Id. Although petitioner’s counsel filed all relevant records and transcripts with the trial court, a copy of the record was not delivered to opposing counsel. Petitioner’s counsel stated that he only learned that respondent did not receive the transcripts on the day of the hearing. While they did not possess a copy at the hearing, respondent’s counsel was aware that the transcripts had previously been ordered, and knew it had been filed with the court upon receiving petitioner’s notice of filing.

Dismissal is an extreme sanction, and should be reserved for cases involving flagrant violations of procedural rules. See generally Lindsey v. King, 894 So.2d 1058, 1059 (Fla. 1st DCA 2005) (stating that “ ‘[a] sanction imposed under rule 9.410 of the Florida Rules of Appellate Procedure must be commensurate with the violation. Dismissal is an extreme sanction and, as such, it is reserved for the most flagrant violations of the appellate rules’” (quoting Irvin v. Williams, 736 So.2d 705, 705 (Fla. 1st DCA 1999)); De La Torre v. Orta ex rel. Orta, 785 So.2d 553, 555 (Fla. 3d DCA 2001) (stating that “dismissal of claims or defenses is an extreme sanction which should be used sparingly”); Moose v. State, 519 So.2d 61, 62 (Fla. 2d DCA 1988) (finding that the harsh sanction of dismissal results in “the sins of the attorney being visited upon the client”).

We recognize the importance of parties complying with deadlines set by the rules of court. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (“In the interest of an efficient judicial system and in the interest of clients, it is essential that attorneys adhere to filing deadlines and other procedural requirements.”). However, there was no evidence presented that petitioner willfully or flagrantly failed to comply with rule 12.490(g)(2). It appears from the record that the failure to deliver the transcripts to opposing counsel was an inadvertent mistake, a conclusion that is corroborated by the totality of the circumstances.

The trial court abused its discretion by denying petitioner’s exceptions based solely on the inadvertent failure to provide a copy of the transcripts to opposing counsel as required by rule 12.490(g)(2). Her conduct was not sufficiently egregious to warrant the draconian sanction of dismissal. Rather than dismiss the exceptions, the appropriate remedy under these circumstances should have been to grant a continuance of the hearing and allow petitioner the opportunity to ensure the delivery of the transcripts to respondent. A continuance would have allowed opposing counsel a chance to review the transcripts, and would have preserved petitioner’s due process rights in the underlying proceeding by allowing her to litigate this case on the merits.

Reversed and Remanded.

GERBER and LEVINE, JJ., concur.

      . Petitioner's position implies that opposing counsel had an affirmative duty to request the transcripts from petitioner prior to the hearing. Although respondent's knowledge that the transcripts were available might be relevant as to whether respondent was prejudiced by having the hearing continued, we emphasize that under the rule it was the petitioner who bore the burden of providing the transcripts to all parties, and consequently it was petitioner’s responsibility to ensure it had been timely received.


author: MAY, J.

text:
    Kurt JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3374.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Rehearing Denied Dec. 12, 2014.

      Kurt James, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The pro se defendant appeals his conviction and sentence for carjacking and robbery. He raises four issues. Among them, he argues the court fundamentally erred in accepting a jury verdict that convicted him of lesser-included offenses when he did not request instructions on lesser-included offenses. We find no merit in any of the issues raised and affirm, but write to address the verdict issue.

The State charged the defendant and others with carjacking with a firearm, robbery with a firearm, resisting an officer without violence, and possession of cannabis. At the charge conference, the defendant told the court he did not want the jury instructed on lesser-included offenses; the State agreed. The court eliminated the lesser-included offenses from the jury instructions and verdict form. The jury returned the verdict form with the word “Firearm” crossed out and initialed, finding the defendant guilty of carjacking and robbery without a firearm. The jury acquitted the defendant of the two-remaining offenses.

When the court received the verdict, it noted the jury’s alteration to the verdict form. The court discussed it with the parties, but ultimately accepted the verdict as rendered.

THE COURT: All right, I’m just going to take the verdict as it is. I think there is no lesser included offense. However, you have to find beyond a reasonable doubt that he is guilty of carjacking with a firearm or not. Now possessing a firearm I guess is implicit if you find carjacking with a firearm. But I don’t' build these, I just land them. So it will be up to the state, that’s their problem.

The defendant remained silent.

After the court discharged the jury, the defendant commented, “[t]he issue was I never went to trial on carjacking or robbery.” The court asked the State to provide input on the issue. The next day, the court reconvened to further discuss the issue. The court then found the defendant had waived the issue by not objecting prior to the jury’s discharge and the verdict reflected a jury pardon.

After denying the defendant’s multiple post-trial motions, the court adjudicated the defendant guilty, and sentenced him to twenty-five years’ imprisonment for the carjacking conviction with credit for time served, followed by two years of community control and three years of probation. The court imposed a concurrent sentence of ten years’ imprisonment for the robbery conviction with credit for time served, followed by two years of community control and three years of probation.

The defendant argues on appeal that because he and the State agreed not to include the lesser-included offenses in the instructions and verdict form, it was fundamental error for the court to accept the jury’s altered verdict form finding him guilty of robbery and carjacking without a firearm. The State responds that the defendant failed to preserve the error by a timely objection, and agrees that the verdict simply reflected a jury pardon, which was supported by the evidence.

We review the orders denying the defendant’s post-trial motions for a clear abuse of discretion. State v. Woodson, 330 So.2d 152, 154 (Fla. 4th DCA 1976); see McMann v. State, 698 So.2d 386, 387 (Fla. 4th DCA 1997). We find no abuse here.

“[A]n objection to any irregularity in a verdict must be raised while the jury is still in court.” Denmark v. State, 656 So.2d 166, 167 (Fla. 1st DCA 1995); see Fla. R. Crim. P. 3.570. This is because a timely objection allows the trial court to have the jury further consider the issue and correct any mistake. Sanchez v. State, 490 So.2d 198, 199 (Fla. 3d DCA 1986).

Here, the defendant failed to preserve the issue. He did not object when the trial court had the opportunity to allow the jury to further consider the issue. We are also persuaded by the fact that the only difference in the charged crime and the jury’s finding of guilt is the absence of a firearm. Use of a firearm is actually an enhancement of the underlying crime, not a completely different offense. The jury actually acquitted the defendant of the enhancement. As the trial court noted, “there is no lesser included offense.” Instead, it was a not guilty finding of the defendant’s use of a firearm.

We agree with the trial court that this verdict reflected a jury pardon. We cannot say that such a pardon constituted fundamental error. See Jaimes v. State, 51 So.3d 445, 448 (Fla.2010).

Affirmed.

WARNER and CONNER, JJ., concur.

      . The defendant requested a Faretta hearing. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The trial court determined he could represent himself. The court appointed a public defender as standby counsel who assisted the defendant during the trial. At every stage of the trial and sentencing the defendant insisted on representing himself.


text:
    Daniel J. DIODATO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-848.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2014.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, 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.
   MAY, J.

The imposition of the State’s investigative costs are challenged by the defendant in his appeal from a conviction and sentence for battery, assault, and deriving support from the proceeds of prostitution. He argues the trial court erred in assessing the cost of DNA and firearms testing when he was acquitted of the crimes as charged. We disagree and affirm. We write due to the scarcity of case law on the issue.

The State charged the defendant by amended information with aggravated battery with a firearm, aggravated assault with a firearm, and deriving support from the proceeds of prostitution.

The charges arose during an unsuccessful romantic encounter in a trailer. An argument ensued between the first male victim and the woman. When he asked for half his money back, he was threatened with a shotgun by the woman’s husband, the defendant. Victim one hurriedly got into his car and left. When the second male victim attempted to leave, a fight ensued, and he was shot by the defendant.

The jury found the defendant guilty of the lesser-included offenses of assault on victim one, battery on victim two, and deriving support from the proceeds of prostitution. Over the defendant’s objection, the trial court assessed $9,000 for DNA testing and $780 for firearms testing. The defendant argued he did not threaten victim one with a shotgun, which accounted for the jury’s verdict. The State could not account for the jury’s verdict because victim one testified that the defendant threatened him with the shotgun and victim two testified that the defendant actually shot him.

We review orders assessing costs for an abuse of discretion. Leyritz v. State, 93 So.3d 1156, 1157 (Fla. 4th DCA 2012).

On appeal, the defendant continues to argue the trial court erred in assessing costs for DNA and firearms testing when he was acquitted of the charged crimes involving the firearm and found guilty of the lesser-included offenses without the firearm. He relies on Leyritz to support his position. The State responds that Leyritz actually supports the court’s imposition of costs.

Section 938.27(1), Florida Statutes, states, in part:

In all criminal ... cases, convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies, ... if requested by such agencies. The court shall include these costs in every judgment rendered against the convicted person.... “[Cjonvicted” means a determination of guilt, ... which is a result of ... trial, ... regardless of whether adjudication is withheld.

§ 938.27(1), Fla. Stat. (2013).

In Leyritz, the state charged the defendant with manslaughter by impairment and manslaughter based on unlawful blood alcohol level. The trial court entered a judgment of acquittal on the former and the “jury found the [defendant] guilty of the lesser-included offense of misdemeanor driving under the influence” on the latter. Leyritz, 93 So.3d at 1157. The state moved to tax $28,162 as costs of prosecution and $12,360 for two- toxicology experts. Id.

The defendant challenged the costs imposed and asked the court to allocate them to the crimes for which he had been convicted. Id. The trial court assessed all $12,360 from the toxicology experts and $15,000 of the $28,162 in costs of prosecution. Id. Significantly, the trial court remarked that it was “going to be intentionally vague,” and did not determine which costs were associated with which crime. Id.

We held that the statute was designed “ ‘to compensate the state for the expenses of prosecution associated with individual violations.’ ” Id. at 1158 (quoting Davis v. State, 42' So.3d 807, 809-10 (Fla. 1st DCA 2010)). “[A] defendant who is acquitted or discharged is not liable for any costs or fees of the court or any ministerial office.” Id. (citing § 939.06, Fla. Stat. (2010)).

The trial court has discretion to assess costs for the crimes for which the defendant is convicted. Id. The trial court cannot be intentionally vague. All that is required is for “the trial court [to] determine that the costs sought by the state were reasonably and necessarily related to the prosecution of the crime for which appellant was convicted.” Id. We reversed and remanded the case for that purpose. Id.

Here, the State charged the defendant with aggravated battery, aggravated assault, and deriving support from proceeds of prostitution. The jury found the defendant guilty of the lesser-included offenses-of simple battery and assault, and the charged offense of deriving support from proceeds of prostitution. The DNA testing was done to determine blood splatter and the involvement of each of the persons at the crime scene. This is certainly reasonably and necessarily related to the prosecution of both the assault and the battery.

The firearms testing was also reasonably and necessarily related to the battery. There was testimony that the shotgun was “fake.” Even though the jury found the defendant guilty of the lesser-included charge of battery, there is no doubt that victim two was shot. Defense counsel admitted as much in closing, but argued the defendant was justified in shooting victim two.

The trial court need not articulate specific findings in support of a cost assessment when the record reflects that the costs are reasonable and necessary for the crimes for which the defendant is convicted. When a defendant is acquitted of charged crimes and the costs are not reasonably and necessarily related to the crimes for which the defendant is convicted, then the court must allocate those costs to the convictions. Here, the court indicated that the jury verdict made it clear and the record reflects the costs imposed were reasonably and necessarily related to the prosecution of the crimes for which the defendant was convicted. We therefore affirm.

Affirmed.

WARNER and CONNER, JJ., concur.

      . We find no merit in the jury selection issue raised.


author: WALLACE, Judge.

text:
    Heidi WUNSCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3121.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.

      Howard L. Dimmig, II, Public Defender, and Dane K. Chase, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Heidi Wunsch challenges her judgment and sentence for child neglect with great bodily harm after a jury trial. She argues that the trial court committed fundamental error by instructing the jury that it could convict her of child neglect based on an uncharged theory of guilt. We agree. Accordingly, we reverse Ms. Wunsch’s judgment and sentence for child neglect with great bodily harm and remand for a new trial on that charge.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

Section 827.03(3), Florida Statutes (2007), defines “neglect of a child” and sets forth the offenses arising out of such conduct as follows:

(3)(a) “Neglect of a child” means:
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; or
2. A caregiver’s failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person.
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.
(b) A person who willfully or by culpable negligence neglects a child and in so doing causes great bodily harm, permanent disability, or permanent disfigure-m,ent to the child commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.
(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.

(Emphasis added.) Accordingly, section 827.03(3) provides two alternative theories under which a caregiver may commit child neglect: (1) by failing to provide for a child’s needs to maintain the child’s physical and mental health or (2) by failing to reasonably protect a child from abuse, neglect, or exploitation by another person. And when such neglect “causes great bodily harm, permanent disability, or permanent disfigurement to the child,” the offense increases from a third-degree felony to a second-degree felony.

Here, the State charged that Ms. Wunsch committed child neglect with great bodily harm in count III of the information, alleging that

[bjetween January 01, 2008 and January 09, 2008 in Charlotte County, Florida, [Ms. Wunsch] did unlawfully and willfully, or by culpable negligence, did knowingly or by culpable negligence, inflict or permit the infliction of physical or mental injury to said child, to wit: J.C. DOB: 6-21-2004 and in so doing caused great bodily harm, permanent disability, or permanent disfigurement to said child, contrary to Florida Statute[s][, section] 827.03(3). (Emphasis added.) Thus the State only charged Ms. Wunsch with the failure to protect J.C. from abuse by another person under section 827.03(3)(a)(2), which resulted in great bodily harm. It did not charge her with failure to provide services necessary for J.C.’s physical or mental health under section 827.03(3)(a)(l).

However, the trial court instructed the jury only that it could find Ms. Wunsch guilty of child neglect owing to her failure to provide for J.C.’s needs, an uncharged theory of the offense. The trial court instructed the jury, without objection, as follows:

To prove the crime of neglect of a child with great bodily harm the State must prove the following four elements beyond a reasonable doubt. 1) Heidi Wunsch willfully or by culpable negligence jailed, or omitted to provide [J.C.] with the care, supervision and services necessary to maintain [J.C.’s] physical or mental health. 2) In so doing Heidi Wunsch caused great bodily harm to [J.C.] 3) Heidi Wunsch was a caregiver for [J.C.] 4) [J.C.] was under the age of 18 years.

(Emphasis added.) The trial court did not instruct the jury that it could find Ms. Wunsch guilty of child neglect with great bodily harm owing to the conduct actually charged, i.e., her alleged failure to protect J.C. from abuse by others.

II. DISCUSSION

Generally, jury instructions are subject to the contemporaneous objection rule, and absent a timely objection to an erroneous instruction at trial, an error may be raised on direct appeal only if it is fundamental. Wright v. State, 975 So.2d 498, 499 (Fla. 2d DCA 2007). But “ ‘where an offense can be committed in more than one way, the trial court commits fundamental error when it instructs the jury on an alternative theory not charged in the information’ and the jury returns a general verdict of guilty without specifying the basis for the conviction.” Beasley v. State, 971 So.2d 228, 229 (Fla. 4th DCA 2008) (quoting Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005)). More specifically, “it is fundamental error to instruct the jury on an uncharged alternate theory of a particular offense when it is impossible to ascertain whether the jury convicted the defendant of the uncharged theory rather than the charged theory.” Sanders v. State, 959 So.2d 1232,1234 (Fla. 2d DCA 2007). This type of error rises to the level of fundamental error because “it is a due process violation to convict a defendant of a crime with which he was not charged.” Brown v. State, 41 So.3d 259, 262 (Fla. 4th DCA 2010).

On the other hand, when there is neither evidence nor argument on the uncharged theory of the offense

it [is] not impossible to know whether the defendant was convicted of the charged theory of the offense or the uncharged theory.... “[I]n such cases, the jury’s verdict is based not on elements that were never at issue, but on the elements on which the State actually presented evidence, on which the State based its arguments, and which the defendant contested at trial.”

Sanders, 959 So.2d at 1234 (quoting State v. Weaver, 957 So.2d 586, 589 (Fla.2007)). Under these contrasting circumstances, there is no fundamental error.

We conclude that the erroneous instruction in this case constituted fundamental error because the jury could not have found Ms. Wunsch guilty under the theory of child neglect charged in the information unless it disregarded the trial court’s jury instruction that it must find that she “failed or omitted to provide [J.C.] with the care, supervision and services necessary to maintain [J.C.’s] physical or mental health.” See Spagnolo v. State, 116 So.3d 599, 604 (Fla. 5th DCA 2013) (holding that fundamental error occurred when “[t]he information only charged Petitioner with third-degree murder while engaging in child abuse by inflicting ‘force trauma,’ yet, the jury was only instructed on the underlying felony of child neglect” as the basis for the third-degree murder charge). The only option available to the jury for convicting Ms. Wunsch of child neglect with great bodily harm under the erroneous jury instruction was on the ground of an uncharged theory of guilt.

Moreover, with respect to the offense of child neglect with great bodily harm, the State argued to the jury, in part, that the evidence proved that Ms. Wunsch committed this offense by “failing] or omitt[ing] to provide [J.C.] with the care, supervision and services necessary to maintain his physical and mental well[-]being.” The prosecutor argued that when J.C. allegedly fell off of a motorcycle, Ms. Wunsch failed to provide the care necessary to maintain his physical well-being because she only took him to see a nurse friend, instead of to a hospital or to a doctor. Thus the prosecutor told the jury that Ms. Wunsch could be convicted of child neglect with great bodily harm based upon an uncharged theory of that offense.

III. CONCLUSION

Because the trial court instructed the jury only that it could convict Ms. Wunsch of child neglect with great bodily harm based upon an uncharged theory of that offense, and because the State argued that the evidence supported a conviction under the uncharged theory, fundamental error occurred regarding Ms. Wunsch’s conviction for the offense of child neglect with great bodily harm. Accordingly, we affirm Ms. Wunsch’s judgment and sentence for child abuse, reverse her judgment and sentence for child neglect with great bodily harm, and remand for a new trial on that offense.

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and RAIDEN, MICHAEL E., Associate Judge, Concur.

      . The State charged Ms. Wunsch in a four-count information with aggravated child abuse (count I), child abuse (count II), child neglect with great bodily harm (count III), and child neglect (count IV). The jury convicted Ms. Wunsch of child abuse on count I, a lesser-included offense, and on counts II, III, and IV as charged. After the jury returned its verdict, the State dismissed the charges in counts II and IV of the information as duplicative ' of the offenses charged in counts I and III. On appeal, Ms. Wunsch does not challenge her conviction for child abuse: we affirm her judgment and sentence for that offense.

      . The prosecutor also argued that Ms. Wunsch committed child neglect with great bodily harm because she failed to protect J.C. from physical abuse by her live-in boyfriend. However, the prosecutor emphatically maintained that Ms. Wunsch had inflicted the injuries on J.C., not her boyfriend.


author: MORRIS, Judge.

text:
    SOVEREIGN HEALTHCARE OF TAMPA, LLC; Sovereign Healthcare Holdings, LLC; Southern Healthcare Management, LLC; John J. Notermann; R. Mark Cronquist; Tracy Nicole Cryree; Bruce S. Bonsel; Kirk Alan Copley; and Sandra Ann Cavanaugh-Sutkus (as to Bayshore Point Nursing & Rehab Center), Appellants, v. The ESTATE OF WILLIAM S. YARAWSKY, by and through Theresa YARAWSKY, personal representative, Appellee.
    No. 2D13-2083.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.
    Thomas A. Valdez of Quintamos, Prieto, Wood & Boyer, P.A., Tampa, for Appellants.

      Isaac R. Ruiz-Carus, Kathleen Clark Knight, and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellee.
   MORRIS, Judge.

Sovereign Healthcare of Tampa, LLC, and other nursing home defendants (collectively referred to as Sovereign) appeal a trial court order rescinding an earlier order granting arbitration. We affirm the order on appeal for the reasons explained below.

I. Background

Mr. Yarawsky was a resident of Sovereign’s nursing home for ten months. After his death, his estate filed suit against Sovereign alleging negligence and other violations of his nursing home resident’s rights. In October 2011, Sovereign moved to compel arbitration on the basis of an arbitration provision contained in the resident admission and financial agreement executed when Mr. Yarawsky became a resident of the nursing home. In April 2012, the trial court entered an order compelling arbitration.

In September 2012, the estate filed a motion to reconsider the order compelling arbitration, raising an objection to the arbitrator selected by Sovereign. In November 2012, the estate filed an amended motion to reconsider, further arguing that the Fifth District had recently held that a similar arbitration provision was unenforceable under similar circumstances. See Perry ex rel. Perry v. Sovereign Healthcare of Metro W., 100 So.3d 146 (Fla. 5th DCA 2012) (decided October 12, 2012). The estate argued that Mr. Yaraw-sky did not sign the resident admission and financial agreement and that Mrs. Ya-rawsky, who signed the agreement as the responsible party, did not have authority to sign on Mr. Yarawsky’s behalf. After holding a hearing in November 2012, the trial court stayed the matter pending the issuance of the mandate in Perry. After the mandate issued in Perry, the trial court held a second hearing in February 2013 and subsequently entered the order granting the estate’s motion and rescinding the April 2012 order compelling arbitration.

II. Analysis

Even though the trial court did not explicitly set forth its reason for rescinding the order compelling arbitration, the record indicates that the trial court likely based its decision on Perry, which was argued by the estate below. In Perry, the nursing home moved to compel arbitration based on the terms of a residency agreement signed by the daughter of the resident. Id. at 146-47. The Fifth District noted that even though the residency agreement was between the nursing home and the resident, the resident never signed the agreement and the resident’s name never appeared in the agreement. Id. at 147. The agreement allowed a person to sign on the resident’s behalf and provided a place for that person to indicate his or her relationship to the resident, but that portion of the agreement was left blank. The daughter signed the agreement where it provided for a signature for a responsible party, but the court stated that “[i]t is apparent from the agreement that [the daughter] signed as the responsible party who undertakes the obligation of a guarantor for payment on behalf of the resident.” Id. at 147-48. The court noted that nobody signed the agreement on behalf of the resident and held that the agreement could therefore not be enforced as to the resident. Id. at 148.

The Perry court went on to hold that there was “no evidence [that the resident] was incapable of signing the agreement on her own behalf’ and that even if the daughter had signed on the mother’s behalf, there was “absolutely no evidence that [the daughter] had the authority to bind [the resident] to the arbitration agreement.” Id. The Fifth District held that “it was error for the lower court to compel arbitration” and reversed the order granting binding arbitration. Id.

The relevant portions of the agreement in this case appear to be identical to those in Perry. And as in Perry, no one signed the agreement on behalf of the resident. There was a line for a person to sign for the resident, but that line was left blank. In addition, the agreement stated that “[i]f an individual other than the [resident signs on behalf of the [Resident,” the individual should “indicate the relationship and obtain copies of relevant documentation at the time of admission.” This section was also left blank. Instead, Mrs. Yarawsky signed the agreement in the place designated for the responsible party. As was the case in Perry, the agreement makes clear that the responsible party is the person obligated to pay for the resident’s services out of the resident’s assets. We note that even if Mrs. Yarawsky had signed “on behalf of the [resident,” there was no evidence that she had the authority to sign on Mr. Yarawsky’s behalf. The trial court properly relied on Perry in concluding that Mr. Yarawsky’s estate was not bound by Mrs. Yarawsky’s signature on the agreement. See also Stalley v. Transitional Hosps. Corp. of Tampa, 44 So.3d 627, 630 (Fla. 2d DCA 2010) (holding that the resident was not bound by the arbitration agreement signed by the resident’s wife because the resident’s wife had authority to sign only papers for his admission and for medical treatment, which did not include the optional arbitration agreement); McKibbin v. Alterra Health Care Corp., 977 So.2d 612, 613 (Fla. 2d DCA 2008) (holding that the resident’s estate was “not bound to arbitrate because [the resident] did not sign the residency agreement that contained the arbitration agreement and her son, who signed the residency agreement, did not have the authority to bind [the resident] to arbitrate”; there was no evidence that the resident was mentally incapacitated, and the son’s durable power of attorney did not give the “son the legal authority to enter into an arbitration agreement on behalf of his mother”); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 300-01 (Fla. 4th DCA 2005) (en banc) (holding that resident’s estate was not bound by arbitration clause within admissions agreement because the agreement was signed by resident’s son; even though resident was incompetent due to senile dementia, resident’s son was at best a health care proxy who could make only decisions related to healthcare and was not authorized to waive his mother’s “right to trial by jury, to waive common law remedies, or to agree to modify statutory duties”).

Sovereign argues that it is irrelevant whether Mrs. Yarawsky signed the contract on Mr. Yarawsky’s behalf and whether she had the authority to sign on his behalf because Mr. Yarawsky was an intended third-party beneficiary of the agreement and was bound by the agreement because he received the benefit of the bargain of the agreement. See Alterra Healthcare Corp. v. Estate of Linton, 953 So.2d 574, 579 (Fla. 1st DCA 2007) (holding that resident was bound by arbitration agreement signed by son because resident was an intended third-party beneficiary of the agreement). Many cases hold that a nonsignatory third-party beneficiary is bound by the terms of a contract containing an arbitration agreement. See, e.g., Germann v. Age Inst, of Fla., Inc., 912 So.2d 590, 592 (Fla. 2d DCA 2005); Estate of Linton, 953 So.2d at 579; Zac Smith & Co. v. Moonspinner Condo. Ass’n, 472 So.2d 1324,1325 (Fla. 1st DCA 1985). But these cases do not discuss whether the person who signed the contract purportedly on behalf of the third-party beneficiary was actually authorized to do so. And more important, the cases are not applicable in this case because the agreement at issue was not actually signed on behalf of the resident.

The concept of a third-party beneficiary applies when “the parties to the contract intended that a third person should be benefited thereby,” 11 Fla. Jur.2d Contracts § 203 (2014), and there is no requirement that the third-party have knowledge of or accept the contract, see id. at § 209. But the concept of third-party beneficiary requires that there be ht least two parties to the contract, i.e., a promisor and a promisee. See Zac Smith & Co., Inc., 472 So.2d at 1324 (“A third-party beneficiary’s rights depend upon, and are measured by, the terms of the contract between the promisor and the promisee.”); 11 Fla. Jur. 2d Contracts §§ 203, 209; 3A Fla. Jur. 2d Arbitration and Award § 26 (2014) (“Where a contract contains an arbitration clause which is legally enforceable, a third-party beneficiary of the contract is bound thereby to the same extent that the promisee is bound.”). In this case, similar to the facts in Perry, there was no promis-ee signing on behalf of the resident. Mrs. Yarawsky signed the agreement as the responsible party, who undertakes the obligation of a guarantor for payment, but nobody signed the contract on behalf of the resident. The majority of the provisions in the agreement address the resident’s rights and obligations as a resident of the nursing home, and it is clear from the agreement that the responsible party has limited rights and obligations that are separate from those of the resident.

It is undisputed that Mr. Yarawsky did not sign the agreement and that no one signed as his legal representative in the spaces provided for the resident and his legal representative; Mrs. Yarawsky signed only in her individual capacity as the responsible party. See Lepisto v. Senior Lifestyle Newport P’ship, 78 So.3d 89, 92 (Fla. 4th DCA 2012) (holding that although the wife had the authority to sign contract and arbitration addendum on behalf of her husband, the resident, “there [was] no evidence that she did so when she merely signed the [c]ontract and [a]ddendum in her individual capacity as the financially responsible party”); Fletcher v. Huntington Place P’ship, 952 So.2d 1225, 1227 (Fla. 5th DCA 2007) (holding that admissions agreement, which included arbitration agreement, was not enforceable against resident’s estate because resident’s daughter “did not sign the agreement in her capacity as her mother’s representative” but only signed as the financially responsible party). And the arbitration provision in this case expressly provides that “[i]t is the express intent of the parties to have a binding arbitration agreement[ ] and [that] the Facility and the Resident and/or the Resident’s Legal Representative acknowledge that, by their signatures of the Agreement, they are expressly and voluntarily agreeing to a mutual arbitration of claims regardless of which party is making a claim.” (Emphasis added.) Because nobody signed the agreement on behalf of the resident or as the resident’s legal representative, Mr. Yarawsky is not a third-party beneficiary of the agreement or the arbitration provisions within the contract. Because no one signed the contract on behalf of the resident, this case is distinguishable from Estate of Linton, on which Sovereign relies.

Recently, the Third District disagreed with Perry, Lepisto, and Fletcher in Mendez v. Hampton Court Nursing Center, LLC, 140 So.3d 671 (Fla. 3d DCA 2014). In Mendez, the court stated that “[t]he principle that a third-party beneficiary is bound by an arbitration provision does not depend upon whether the party to the agreement signs only as the ‘financially responsible party.’ It turns on whether the party that is being bound was the third-party beneficiary.” Id. at 675. In Mendez, the court held that the resident of the nursing home was the intended third-party beneficiary of the contract for care and had received the benefit of the bargain under the contract and therefore was bound by the arbitration provision in that contract, even though the resident himself did not sign the contract. However, the facts in Mendez are different from the facts in this case and the facts in Perry. In Mendez, on the day of admission, a doctor at the nursing home had “determined the [resident] lacked the capacity to give informed consent or make medical decisions.” 140 So.2d at 673. More important, the resident’s son “signed the agreement on a signature line indicating ‘signature of resident’s representative,’ ” who by the terms of the contract also happened to be the financially responsible party. Id. Therefore, in Mendez, a promisee (the resident’s son) bound the third-party beneficiary (the resident) by signing the contract as the resident’s representative, not simply as the financially responsible party, and it appears from the specific facts in that ease that the promisee had the authority to sign for his father. The court in Mendez did not have before it the issue of the resident’s relative signing the contract only as a financially responsible party or the issue of a resident’s relative signing the contract on the resident’s behalf without authority to do so; therefore, the Mendez court’s statements on these issues are dicta.

We recognize that while these issues arise in the common circumstance of a resident’s admission into a nursing home, these cases often involve different factual scenarios surrounding the patient’s mental state and the specific terms of the agreement containing the arbitration provisions. In applying the case law above to the facts of this case, we conclude that Mr. Yaraw-sky was not a third-party beneficiary of the agreement containing the arbitration provision because no person with authority signed the agreement on his behalf. This holding is consistent with the general rule that “[o]ne who has not agreed, expressly or implicitly, to be bound by an arbitration agreement cannot be compelled to arbitrate.” Regency Island Dunes, Inc. v. Foley & Assocs. Constr., 697 So.2d 217, 218 (Fla. 4th DCA 1997) (citing Tartell v. Chera, 668 So.2d 1105 (Fla. 4th DCA 1996)); see also Seifert v. U.S. Home Corp., 750 So.2d 683, 686 (Fla.1999) (“[N]o party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.”). Mr. Yarawsky’s estate is not bound by the arbitration provisions within the agreement, and we affirm the trial court’s order rescinding the earlier order granting arbitration.

Affirmed.

KHOUZAM and CRENSHAW, JJ, Concur.

      . We note that unlike the agreement in Perry, the agreement in this case listed Mr. Yaraw-sky in the space provided on the first page for the name of the resident. However, we do not believe that this fact is significant or renders Peny inapplicable, especially when it is clear in both cases that the admission agreements were intended to apply to the residents at issue. As explained in more detail above, we find significant the fact that no one signed the agreement on Mr. Yarawsky’s behalf.

      . In Stalley, 44 So.3d at 632-33, this court addressed the concept of a third-party beneficiary. There, the facility argued that the resident was a third-party beneficiary of the arbitration agreement even though the resident had not signed the agreement and the resident's wife did not have authority to sign the agreement. This court noted that the arbitration agreement was a separate, optional contract from the admissions agreement and that the admissions agreement did not reference the arbitration agreement. The facility provided services to the resident independent of the arbitration agreement, and therefore, the resident was not an intended third-party beneficiary of the arbitration agreement. Id. at 633. Here, the arbitration agreement is not a separate agreement from the admission agreement and there is no evidence whether the provision of services to Mr. Yarawsky was dependent upon his acceptance of the arbitration agreement within the admissions agreement, so Stalley unfortunately does not provide guidance on the issue of an intended third-party beneficiary on the facts in this case.

      . Sovereign cites Integrated Health Services of Green Briar, Inc. v. Lopez-Silvero, 827 So.2d 338, 339 (Fla. 3d DCA 2002), for the proposition that "[a] contract is binding, despite the fact that one party did not sign the contract, where both parties have performed under the contract.” In Lopez-Silvero, a representative of the nursing home had not signed the nursing home’s own contract and the court held that by providing services to the resident, the nursing home had clearly assented to the terms of its own contract. Id. But Lopez-Silvero does not discuss whether the concept of third-party beneficiary applies where the contract had not been signed on behalf of the resident, and the holding should not be extended to the facts of this case.


author: LaROSE, Judge.

text:
    GREENBROOK NH, LLC; Greystone Healthcare Management Corp.; Monika K. Peters; And Michelle E. Upton (As to Apollo Health and Rehabilitation Center, Appellants, v. The ESTATE OF Alene M. SAYRE, by and through Annette M. RAYMOND, Personal Representative, Appellee.
    No. 2D13-4009.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.

      Thomas A. Valdez and Sheila K. Nicholson of Quintairos, Prieto Wood & Boyer, P.A., Tampa, for Appellants.
    Isaac R. Ruiz-Carus, Donna K. Hanes, and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Greenbrook NH, LLC, et al. (Green-brook), appeals the trial court’s nonfinal order denying its motion to dismiss and compel arbitration and motion to stay proceedings. See § 682.03, Fla. Stat. (2010) (delineating “[proceedings to compel and to stay arbitration”). We have jurisdiction, see Fla. R. App. P. 9.130(a)(3)(C)(iv), and reverse.

Greenbrook is a skilled nursing facility in St. Petersburg. Aleñe Sayre lived there for most of 2011. Thereafter, Annette Raymond, Ms. Sayre’s daughter, as personal representative of her mother’s estate, sued Greenbrook for negligence and for violation of her mother’s nursing home residents’ rights. See §§ 400.022-.023, Fla. Stat. (2010) (addressing residents’ rights and civil enforcement).

Upon Ms. Sayre’s admission to Green-brook, Ms. Raymond, as her mother’s legally authorized representative, signed an arbitration agreement requiring Ms. Sayre to arbitrate all disputes that may arise from her stay at Greenbrook. After Ms. Raymond filed suit, Greenbrook sought to enforce that agreement.

At the hearing on the motion to compel arbitration, Greenbrook presented a copy of the signed arbitration agreement. Three portions were obscured-the title and portions of two terms. Greenbrook also presented to the trial court a complete, but unsigned, copy of the form arbitration agreement. Ms. Raymond argued that the obscured portions rendered the agreement incomplete and, therefore, invalid. The trial court agreed and denied the motion to compel arbitration.

Greenbrook contends, here, that, despite the photocopying error, the arbitration agreement is valid because the omitted portions do not alter the parties’ intent to create a binding contract to arbitrate. According to Greenbrook, the remaining terms of the agreement were sufficiently clear and definite to form a contract. We agree.

Appellate review of the trial court’s factual findings involves determining whether competent, substantial evidence supports the findings. Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin, 122 So.3d 916, 919 (Fla. 2d DCA 2013), review denied, 135 So.3d 287 (Fla.2014); Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630, 632 (Fla. 2d DCA 2008). “[T]he standard of review applicable to the trial court’s construction of the arbitration provision and to its application of the law to the facts ... is de novo review.” Woebse, 977 So.2d at 632. In assessing the enforceability of an arbitration agreement, we inquire ■ “(1) whether there is a valid written agreement to arbitrate, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived.” Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 255 (Fla. 2d DCA 2006), abrogated on other grounds by Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla. 2011). This case involves only the first issue — whether, despite a photocopying error, the arbitration agreement is valid.

There can be no quarrel that a contract cannot stand if it is missing the “essential terms of an agreement.” Bergman v. DeIulio, 826 So.2d 500, 503 (Fla. 4th DCA 2002). The essential terms of an arbitration agreement include “the form and procedure for arbitration, the number of arbitrators, how the arbitrators were to be selected, or ... the issues to be decided by arbitration.” Malone & Hydé, Inc. v. RTC Transp., Inc., 515 So.2d 365, 366 (Fla. 4th DCA 1987). These factors are not exhaustive; they offer an outline of an arbitration agreement’s basic terms. The terms must be definite enough so that the parties have some idea as to what matters are to be arbitrated and provide some procedure by which arbitration is to be effected. See id. The polestar guiding us in the construction of a written arbitration agreement, as with any contract, is the parties’ intent. Crastvell Trading Ltd. v. Marengere, 90 So.3d 349, 353 (Fla. 4th DCA 2012). We discern that intent “from the total writing and not particular provisions or disjointed parts.” SCG Harbourwood, LLC v. Hanyan, 93 So.3d 1197,1200 (Fla. 2d DCA 2012).

The trial court found that the arbitration agreement’s obscured portions were material, thus making the agreement infirm. The missing language included the title classifying the document as an arbitration agreement, the three-arbitrator panel’s decision-making process, and a portion of a severability clause. Even with these supposed deficiencies, the agreement contained clarifying and supplementary terms, establishing a valid and enforceable agreement.

First, we conclude that the title was not necessary; even a passing review of the document established that it was an arbitration agreement. Second, the executed agreement omitted the last step of the arbitration panel process, when applicable. The unobscured provision provided in part,

To the extent the parties cannot agree upon a single arbitrator, each side shall choose a single non-neutral arbitrator (a total of two), who will in turn choose a third arbitrator to serve as a neutral/umpire. In the latter case, all three arbitrators shall participate in the hearing but the ...

The obscured portion continued,

single arbitrator will decide the controversy, and the decision shall be binding on all parties, and may be enforced by a court of competent jurisdiction.

With or without the non-neutral arbitrators, the agreement, even if obscured, contemplates that the neutral arbitrator/umpire will be the ultimate decision maker. In another provision of the agreement, the parties adopted the Florida Arbitration Code. See §§ 682.01-.22. Section 682.04 provides, in part, that if the agreement on a.panel of arbitrators fails or cannot be followed, the court, on application of a party to the agreement, shall appoint one or more arbitrators or an umpire. This statutory provision, in light of the agreement’s obscured language, would cure or fill the gap should the need for a neutral umpire become an issue. Third, it was obvious that the agreement contained a severability clause. Indeed, read as whole, the arbitration agreement, even as obscured, informed the parties that the agreement would not fail if a court deemed any portion invalid. See also § 682.22.

If a party has “a meaningful opportunity to review the arbitration agreement, to obtain guidance, and to accept or reject the terms of the arbitration agreement,” the agreement is enforceable. Tampa HCP, LLC v. Bachor, 72 So.3d 323, 328 (Fla. 2d DCA 2011). Ms. Raymond had an opportunity to review the arbitration agreement before signing it for her mother. The record is unclear if Greenbrook presented Ms. Raymond with-an obscured arbitration agreement, or if the photocopying error occurred after signing. If Ms. Raymond saw the agreement’s omitted and obscured portions, she could have asked for a clean copy to sign instead of signing a clearly obscured copy with portions omitted. Ms. Raymond could have refused to sign the arbitration agreement and demanded a clean copy. If, however, the agreement included the now omitted portions, Ms. Raymond had the opportunity to review the document, signing with the clear intent to arbitrate potential disputes. On these facts, the agreement was valid and enforceable. Accordingly, we reverse the order denying the motion to compel arbitration.

Reversed and remanded with directions to grant’ the motion to compel arbitration.

CASANUEVA and SLEET, JJ., Concur.

      . The photocopying error appears to be due to copying that resulted in the top two or three lines of all three pages of the agreement being obscured.


author: CRENSHAW, Judge.

text:
    C.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6156.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

C.W., a minor, appeals from a judgment' and restitution order after he entered a plea of no contest to grand theft. He was adjudicated delinquent and placed on probation for a period not to exceed his nineteenth birthday and restitution was ordered to be paid in the amount of $664 at a rate of $25 monthly. On appeal, C.W. argues that it was error to hold the restitution hearing without his presence and that the court failed to find that C.W. had the ability to pay. As our ruling on his presence is dispositive, we do not reach the issue of ability to pay.

The State agrees that the law precludes conducting a restitution hearing without the defendant’s presence, unless waived, but does not agree that C.W. was not present. However, the record in this case affirmatively reveals that C.W. was not present at the restitution hearing and the State concedes that if C.W. was not present and had not waived his presence, reversal is required. See Bishop v. State, 148 So.3d 1073, 1075 (Fla. 2d DCA 2014). The burden to prove waiver is on the State. Id. (citing Pierce v. State, 133 So.3d 1186, 1187-88 (Fla. 2d DCA 2014)). The State did not do so.

Because the record is clear that C.W. was not present at his restitution hearing and the State has failed to meet its burden that C.W. waived his right to be present, we reverse the restitution order and remand for a new hearing.

Reversed and remanded.

CASANUEVA and SLEET, JJ., Concur.


author: DAVIS, Chief Judge.'

text:
    A.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D14-298.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2014.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Chief Judge.'

A.B. challenges the withhold of his adjudication and his placement on juvenile probation after he was found to have committed the delinquent act of delivering cocaine within 1000 feet of a church. Because the trial court erred in denying the motion for judgment of dismissal, we reverse.

A.B. was arrested after he was alleged to have sold drugs to an undercover officer. The transaction was recorded, and the video was produced at the delinquency hearing. Although there was some dispute regarding identity at the hearing, the facts surrounding the sale itself are essentially undisputed, and only the question of whether the State established that'the delivery of the cocaine occurred within 1000 feet of a church remains at issue.

At the hearing, a detective prepared and provided a scaled visual image of the location of the drug transaction and testified regarding his computer-based calculations of the distance between the transaction site and the church. According to his measurements, the New Jerusalem Haitian Baptist Church is located between 700 and 800 feet from the place where the sale occurred. He testified that he had never been inside the building but that he had been to the location and that it was a church, looked like a church, and held itself out to be a church through its outside signage. Defense counsel’s objection to this testimony based on a lack of personal knowledge was overruled. At the close of the State’s case, defense counsel moved for a judgment of dismissal, claiming that the State failed to present sufficient prima fa-cie evidence to support the requisite statutory element that regularly conducted religious services were held at the church building located within 1000 feet of the delivery of the cocaine. The trial court denied the motion, and A.B. now challenges that ruling on appeal.

Section 893.13(l)(e), Florida Statutes (2011), provides that “it is unlawful for any person to sell, manufacture, or deliver ... a controlled substance not authorized by law in, on, or within 1,000 feet of a physical place for worship at which a church or religious organization regularly conducts religious services.” (Emphasis added.) In the instant case, the testimony of the detective did not establish that the church building was a physical place of worship at which religious services are regularly conducted. As such, the trial court erred in denying A.B.’s motion for judgment of dismissal. See Moore v. State, 18 So.3d 715, 716 (Fla. 2d DCA 2009) (“In the timeframe when the offense occurred, the officer in this case could not provide evidence that the church was regularly conducting religious services.”); see also Hill v. State, 830 So.2d 876 (Fla. 5th DCA 2002) (reversing conviction for sale within 1000 feet of a place of worship where officer had attended a program in the church but could not offer testimony regarding whether services were regularly conducted there); Wallace v. State, 814 So.2d 1255, 1257 (Fla. 5th DCA 2002) (concluding that State failed to establish statutory elements of offense where officer “merely testified that he was aware (in some fashion) that services ‘go on’ in these two named churches, but there [wa]s no specification as to whether these services [wejre religious in nature or how often they occurred]”); cf. McHolder v. State, 917 So.2d 1043, 1046 (Fla. 5th DCA 2006) (“[Tjhe State sufficiently proved the sale occurred within [1000 feet of a place of worship] and that religious services [wejre regularly conducted.... [The officer] indicated that this church conducted regular worship services as he had observed people entering and leaving the church on Sunday mornings in their church attire at regular times. In addition, [the officer] testified that he had visited the House of God Church. He indicated that he often observed vehicles parked behind the church and persons in suits and dresses going in and out of the church at regular times. Moreover, photographs of the church and a church sign listing the times and days of worship were admitted as evidence.”).

We accordingly reverse the disposition finding that A.B. delivered cocaine within 1000 feet of a church and remand for the entry of a disposition based on the necessarily lesser-included offense of delivery of cocaine. See Moore, 18 So.3d at 716.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ., Concur.


author: PER CURIAM.

text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-3789.
    No. 2014-BA-2198.
    Supreme Court of Louisiana.
    Oct. 27, 2014.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

11 After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Lawyers Assistance Program (“LAP”) on December 27, 2011.

2. The period of this conditional admission shall coincide with the period of petitioner’s LAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of LAP to report any violations of the LAP agreement to the Office of Disciplinary Counsel (“ODC”).

4. Upon the expiration of the term of petitioner’s LAP agreement, the Executive Director of LAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5. Following receipt of the report from LAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6.Petitioner shall cooperate with LAP and the ODC, and shall comply with any and all requirements imposed upon him by LAP and the ODC.

12ShouId petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    A.P., Individually and on Behalf of Her Minor Children, H.H. and J.J.H. v. Lisa TADLOCK and the Family Counseling Center.
    No. 2014-C-1387.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   PER CURIAM.

hWrit granted. Because we find the plaintiff has sufficiently demonstrated there remain genuine issues of material fact, the defendants were not entitled to summary judgment as a matter of law pursuant to La.Code Civ. Proc. art. 966. Accordingly, the judgment of the district court is reversed, and the matter is remanded to that court for further proceedings.

VICTORY, J., would deny.

KNOLL, J., would deny.

CLARK, J., would deny.


author: /s/ Justice, Supreme Court of Louisiana

text:
    In re Daniel G. ABEL.
    No. 2014-C-2239.
    Supreme Court of Louisiana.
    Nov. 6, 2014.
   ORDER

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

IT IS ORDERED that respondent, Daniel G. Abel, Louisiana Bar Roll number 8348, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

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

FOR THE COURT:

/s/ Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Rasheed DAVIS.
    No. 2014-KK-2048.
    Supreme Court of Louisiana.
    Nov. 6, 2014.
   On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of Orleans.

11 Writ granted. The rulings of the lower courts are reversed, and the motion to suppress is denied for the reasons expressed in the dissent by Judge Tobias.

JOHNSON, C.J., would deny the writ.

JOHNSON, C.J., dissents.


text:
    STATE ex rel. Cherie PEREZ v. STATE of Louisiana.
    No. 2012-KH-2569.
    Supreme Court of Louisiana.
    April 26, 2013.
   In re Perez, Cherie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. D, No. 2004-407164; to the Court of Appeal, First Circuit, No. 2012 KW 1543.

Denied.

WEIMER, J., recused.


text:
    Diane JOHNSON v. NEILL CORPORATION, Paris Parker Salons and/or Neill Corporation d/b/a Paris Parker Salons; Larry Donnie Ashton, Jr.; and ABC Insurance Company.
    No. 2014-CC-2057.
    Supreme Court of Louisiana.
    Oct. 6, 2014.
   In re Ashton Jr., Larry Donnie; Neill Corporation et al; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 571,-

267; to the Court of Appeal, First Circuit, No. 2014 CW 1362.

Stay denied; writ denied.


text:
    STATE of Louisiana in the Interest of M.A., et al.
    No. 2014-CJ-1986.
    Supreme Court of Louisiana.
    Oct. 9, 2014.
   In re C.A.; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, No. 2014-JC-596; to the Court of Appeal, Third Circuit, No. JWC 14-00849.

Denied.


text:
    Rebecca BARNETT, et al. v. William BARNETT, Jr., et al.
    No. 2014-CC-2006.
    Supreme Court of Louisiana.
    Oct. 9, 2014.
   In re Barnett Jr., William et al.; Barnett, Amelia; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 59-717; to the Court of Appeal, Fourth Circuit, No. 2014-C-1025.

Denied.


text:
    Stuart H. SMITH and Barry J. Cooper v. John TSATSOULIS d/b/a Market Cafe.
    No. 2014-OC-2018.
    Supreme Court of Louisiana.
    Oct. 9, 2014.
   In re John Tsatsoulis d/b/a Market Cafe; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2001-10463; to the Court of Appeal, Fourth Circuit, No. 2014-CA-0742.

Denied.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 0030635.
    No. 2014-OB-1962.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Washington, Edward; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board.

Granted for the sole purpose of remanding this matter to the Office of Disciplinary Counsel, which shall transfer it to the hearing committee for its consideration pursuant to Supreme Court Rule XIX, § 11(B)(3).

WEIMER, J., recused.


text:
    Richard C. BENTLEY v. LCM CORPORATION, et al.
    No. 2014-C-1451.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Bentley, Richard C.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. C, No. C-20112851; to the Court of Appeal, Third Circuit, No. 14-139.

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


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 14-PDB-012.
    No. 2014-OB-1754.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Peneguy, Mark E.; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 14-PDB-012.

Leave to appeal denied.


text:
    STATE ex rel. John Thomas CZERE, III v. STATE of Louisiana.
    No. 2013-KH-1033.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Czere III, John Thomas; — Plaintiff; Applying For Reconsideration of this court’s action dated July 31, 2014, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 65012/13.

Reconsideration denied.


text:
    STATE ex rel. Jeffrey STEWART v. STATE of Louisiana.
    No. 2013-KH-2888.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Stewart, Jeffrey; — Plaintiff; Applying for Reconsideration of this Court’s action dated July 31, 2014, Parish of Orleans, Criminal District Court Div. A, No. 281-875.

Reconsideration denied.


text:
    STATE of Louisiana v. Charles RODRIGUEZ.
    No. 2013-KP-2309.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Rodriguez, Charles; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 96681; to the Court of Appeal, First Circuit, No. 2013 KW 1160.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Raymond DECKELMAN.
    No. 2013-KP-2381.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Deckelman, Raymond; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 475-289; to the Court of Appeal, First Circuit, No. 2013 KW 1191.

Denied.


text:
    STATE of Louisiana v. Johnny JONES, Jr.
    No. 2013-KP-2427.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Jones Jr., Johnny; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lasalle, 28th Judicial District Court Div. O, No. 90,277; to the. Court of Appeal, Third Circuit, No. KW 13-00704.

Denied.


text:
    STATE of Louisiana v. Roy PARKER.
    No. 2013-KP-2458.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Parker, Roy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 437-320; to the Court of Appeal, Fourth Circuit, Mo. 2013-K-0811.

Denied.


text:
    STATE of Louisiana v. Leroy McKINNEY.
    No. 2013-KP-2481.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re McKinney, Leroy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial

District Court Div. B, No. 246,429; to the Court of Appeal, Second Circuit, No. 48,-699-KW.

Denied.


text:
    STATE of Louisiana v. Jeremy JOHNSON.
    No. 2013-KP-2657.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Johnson, Jeremy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 436-479; to the Court of Appeal, Fourth Circuit, No. 2013- ' R-0882.

Denied.


text:
    STATE of Louisiana v. Daniel AUGUST.
    No. 2013-KP-2665.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re August, Daniel; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 359-625; to the Court of Appeal, Fourth Circuit, No. 2013-K-1306.

Denied.


text:
    STATE of Louisiana v. Alonzo GONZALES.
    No. 2013-KP-2730.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Gonzales, Alonzo; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 401671-1; to the Court of Appeal, First Circuit, No. 2013 KW 1259.

Denied.


text:
    STATE of Louisiana v. Isaac FIELDS, III.
    No. 2013-KP-2777.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Fields III, Isaac; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of East Carroll, 6th Judicial District Court Div. E, No. 57,851; to the Court of Appeal, Second Circuit, No. 48,-872-KW.

Denied.


text:
    STATE ex rel. Wayne GREEN v. STATE of Louisiana.
    No. 2013-KH-2831.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Green, Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 02-06-0294; to the Court of Appeal, First Circuit, No. 2013 KW1541.

Denied.


text:
    STATE ex rel. Patrick H. ARMAND v. STATE of Louisiana.
    No. 2013-KH-2989.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Armand, Patrick H.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, Nos. ll-CR-163,-319, 12-CR-167,773; to the Court of Appeal, Third Circuit, No. KH 13-01030.

Denied.


text:
    STATE ex rel. Braccarrie RAMSEY v. STATE of Louisiana.
    No. 2014-KH-0218.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Ramsey, Braccarrie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 07-2327; to the Court of Appeal, Fifth Circuit, No. 11-KH-784.

Denied.


text:
    STATE ex rel. Robert WHITAKER v. STATE of Louisiana.
    No. 2014-KH-0233.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Whitaker, Robert; — Plaintiff; Applying For Supervisory and/or Remedial

Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 03-84-0252; to the Court of Appeal, First Circuit, No. 2013 KW 1575.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Jason MIZELL v. STATE of Louisiana.
    No. 2014-KH-0237.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Mizell, Jason; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. B, No. 107,063; to the Court of Appeal, First Circuit, No. 2012 KA 2045.

Denied.


text:
    STATE ex rel. Bryan J. AUCOIN v. STATE of Louisiana.
    No. 2014-KH-0239.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Aucoin, Bryan J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. H, No. 177308; to the Court of Appeal, First Circuit, No. 2013 KW 1560.

Denied.


text:
    STATE ex rel. Addarien COTTONHAM v. STATE of Louisiana.
    No. 2014-KH-0244.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Cottonham, Addarien; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jackson, 2nd Judicial District Court Div. B, No. 35,503; to the Court of Appeal, Second Circuit, No." 41019-KW.

Denied.


text:
    STATE ex rel. Jessie MOORE v. STATE of Louisiana.
    No. 2014-KH-0246.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Moore, Jessie; — Plaintiff; Applying For Supervisory . and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 03-09-0161; to the Court of Appeal, First Circuit, No. 2013 KA 0716.

Denied.


text:
    STATE ex rel. Steven CAMPBELL v. STATE of Louisiana.
    No. 2014-KH-0248.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Campbell, Steven; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 05-578; to the Court of Appeal, Fifth Circuit, No. 14-KH-16.

Denied.


text:
    STATE ex rel. Hassan A. ABDUL v. STATE of Louisiana.
    No. 2014-KH-0249.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Abdul, Hassan A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 09-4415; to the Court of Appeal, Fifth Circuit, No. 13-KA-566.

Denied.


text:
    STATE ex rel. Jerry Wayne PRICE v. STATE of Louisiana.
    No. 2014-KH-0250.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Price, Jerry Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 496718; to the Court, of Appeal, First Circuit, No. 2013 KA 0693.

Denied.


text:
    STATE ex rel. Donald ROSS v. STATE of Louisiana.
    No. 2014-KH-0251.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Ross, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. D, No. 88-CR-000067; to the Court of Appeal, First Circuit, No. 2013 KW 1562.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Michael O. WILLIAMS v. STATE of Louisiana.
    No. 2014-KH-0252.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Williams, Michael 0.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 396-938; to the Court of Appeal, Fourth Circuit, No. 2014-K-0041.

Denied. La.C.Cr.P. art. 930.8;. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.


text:
    STATE ex rel. Derrick Dewayne DAVIS v. STATE of Louisiana.
    No. 2014-KH-0264.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Davis, Derrick Dewayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 277943; to the Court of Appeal, Third Circuit, No. KH 13-01142.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Kelvin Ray SMITH v. STATE of Louisiana.
    No. 2014-KH-0276.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Smith, Kelvin Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 02-80-0296.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Robert C. WADDELL v. STATE of Louisiana.
    No. 2014-KH-0278.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Waddell, Robert C; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 252,040; to the Court of Appeal; Third Circuit, No. KH 13-01006.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Burnell COLEMAN v. STATE of Louisiana.
    No. 2014-KH-0302.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Coleman, Burnell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 313-772; to the Court of Appeal, Fourth Circuit, No. 2014-K-0043.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Kentrell LANDRY v. STATE of Louisiana.
    No. 2014-KH-0303.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Landry, Kentrell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 04-09-0083; to the Court of Appeal, First Circuit, No. 2013 KW 1584.

Denied.


text:
    STATE ex rel. Willie MARTIN v. STATE of Louisiana.
    No. 2014-KH-0305.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Martin, Willie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 304-441; to the Court of Appeal, Fourth Circuit, No. 2014-K-0009.

Denied.


text:
    STATE ex rel. A.V. BARNETT v. STATE of Louisiana.
    No. 2014-KH-0307.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Barnett, A.V.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. K, No. 06-541; to the Court of Appeal, Second Circuit, Nos. 48,601-KH, 49,293-KH.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. John H. JONES v. STATE of Louisiana.
    No. 2014-KH-0309.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Jones, John H.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 052166; to the Court of Appeal, First Circuit, No. 2013 KW 1650.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art 351.


text:
    STATE of Louisiana v. Jason D. RENARD.
    No. 2014-KO-0416.
    Supreme Court of Louisiana.
    Oct. 10, 2014.
   In re Renard, Jason D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 517154; to the Court of Appeal, First Circuit, No. 2013 KA 0692.

Denied.