text:
    Moses TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-479.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Moses Taylor, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

This is an Anders appeal in which we find no reversible error.

Despite affirmance, we remand the judgment and sentence on Count 2 for correction of a scrivener’s error in the written sentencing documents. See, e.g., Johnson v. State, 84 So.3d 452 (Fla. 5th DCA 2012) (affirming Anders appeal, but remanding for correction of scrivener’s error). Here, the trial court habitualized appellant, Moses Taylor [“Moses”], as to Count 1 (Sale of Cocaine), but did not provide for the same enhancement for Count 2 (Possession of Cocaine). Nevertheless, the written sentence as to Count 2 incorrectly indicates habitual offender enhancement.

Consistent with the oral pronouncement (and the plea agreement), Moses received a five-year statutory maximum sentence for Count 2, a third degree felony. Section 775.084(l)(a)3., Florida Statutes, does not allow enhanced habitual offender sentences for possession of a controlled substance; thus, it was clearly not the intention of the trial court to sentence Moses as a habitual offender for Count 2.

AFFIRMED. Sentence on Count 2 VACATED; and REMANDED for correction.

LAWSON and COHEN, JJ„ concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Franklin CANALES-ORDONEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2566.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Franklin Canales-Ordonez, Perry, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying Petitioner’s motion for post-conviction relief filed October 15, 2012, in Case No. 05-2008-CF-055585, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, EVANDER and WALLIS, JJ., concur.


text:
    K.J. BRITT, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2539.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    K.J. Britt, Jr., Blountstown, Florida, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 29, 2012 denial of motion for postconviction relief, filed in case no. 05-2009-CF-027179-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, EVANDER, COHEN, JJ., concur.


text:
    Kenneth L. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2292.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Kenneth L. Williams, Sneads, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2012-CF-2616, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER and WALLIS JJ., concur.


author: NELSON, D.S., Associate Judge.

text:
    Robert SCALICE, etc., Appellant, v. ORLANDO REGIONAL HEALTHCARE, etc., et al., Appellees.
    No. 5D12-1627.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 2013.
    Shannon McLin Carlyle and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee.
   NELSON, D.S., Associate Judge.

In this medical malpractice action, the parties raise three issues on appeal, two of which merit discussion and reversal— whether the trial court properly interpreted section 766.205(4), Florida Statutes (2010), concerning admissibility of pre-suit affidavits, and whether those affidavits established a genuine issue of material fact precluding summary judgment in this case.

This case involves the alleged wrongful death of Brandon Scalice, who died two days after birth from contracting Group B Streptococcus. The personal representative of Brandon’s estate filed a medical malpractice claim against Orlando Regional Healthcare System and a number of its medical personnel and agents (collectively, “Orlando Health”), as well as the Nemours Foundation and two of its physicians, alleging that Brandon contracted the streptococcus and ultimately died as a result of their negligence.

Orlando Health filed a motion for summary judgment. In support, it attached expert affidavits of: Dr. David Soper, a board certified obstetrician and gynecologist; and, Dr. Jeffrey Brosco, a board certified pediatrician. In opposition to the motion, the Estate filed the affidavits of Dr. Arie Leon Alkalay and Dr. Frank Bot-tiglieri, both of which were originally obtained for pre-suit investigation purposes.

At the summary judgment hearing, Orlando Health argued that the Estate’s affidavits were not admissible in the summary judgment proceeding because they were the same affidavits used in the Estate’s pre-suit investigation. The trial court agreed and rendered its order granting summary judgment stating, “Since the pre-suit Affidavits submitted by Plaintiff in opposition to the Motion for Summary Judgment are inadmissible, Plaintiff has failed to produce any evidence that any alleged deviation was the direct and proximate cause of the death of Brandon Scal-ice.”

Summary judgment is proper only where no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Statutory interpretation is a question of law and the standard of review governing a trial court’s ruling on a summary judgment motion posing a pure question of law is de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Rameses, Inc. v. Demings, 29 So.3d 418, 420 (Fla. 5th DCA 2010).

At the summary judgment hearing, Orlando Health relied on the affidavits of Dr. David Soper, who opined that Orlando Health met the appropriate standard of care in the care and treatment of Sharri Scalice (Brandon’s mother), and Dr. Jeffrey Brosco, who opined that Orlando Health met the appropriate standard of care in the care and treatment of Brandon and that “the alleged acts or omissions of the above referenced Defendants were not the proximate cause of Brandon Scalice contracting Group B. Strep.”

The Estate relied on the affidavits of Dr. Alkalay, a physician board certified in pediatric and neonatal-perinatal medicine, who opined that Orlando Health breached the appropriate standard of care in its treatment of Brandon, and Dr. Bottiglieri, a board certified obstetrician and gynecologist, who opined that Orlando Health breached the appropriate standard of care in its care and treatment of both Sharri and Brandon Scalice and that Orlando Health’s breach resulted in Brandon contracting Group B Streptococcus and his death, which were both foreseeable and preventable.

The trial court refused to consider the Estate’s pre-suit affidavits based on section 766.205(4), which provides, in pertinent part: “No statement, discussion, written document, report, or other work product generated solely by the pre-suit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.” We agree with the Estate that the trial court misinterpreted the statute. The plain language of section 766.205(4) only precludes “the opposing party” from admitting pre-suit documents; it does not preclude a party from using its own pre-suit documents. For this reason, Orlando Health’s reliance on Cohen v. Dauphinee, 739 So.2d 68 (Fla.1999), is unavailing as that case involved a defendant attempting to introduce the plaintiffs pre-suit affidavit to impeach the plaintiffs expert during trial. Clearly, that use is prohibited by section 766.205(4). Here, on the other hand, the Estate sought to utilize its own pre-suit affidavits. Accordingly, we conclude that the trial court erred in refusing to consider the Estate’s pre-suit affidavits filed in opposition to summary judgment.

The court next addresses whether the pre-suit affidavits sufficiently refuted Orlando Health’s claim of lack of proximate cause. In particular, after opining that Orlando Health breached the standard of care owed to both Sharri and Brandon Scalice, Dr. Bottiglieri concluded: “Consequently, Brandon Scalice was infected with Group B Streptococcus and that the infection could not be controlled, ultimately resulting in his death, which were both foreseeable and easily preventable.” Thus, the Estate presented evidence that created a genuine issue of material fact concerning whether Orlando Health’s breach of the standard of care proximately caused Brandon’s death. Because the Estate’s affidavits contradict Orlando Health’s assertions of lack of breach and lack of causation, questions of fact exist precluding summary judgment.

We reverse the order granting summary judgment in favor of Orlando Health and remand this cause for a trial on the merits.

REVERSED and REMANDED.

ORFINGER and BERGER, JJ., concur.


text:
    STATE FARM INSURANCE COMPANY, Petitioner, v. Steven ULRICH and Ragnhild Ulrich, Respondents.
    No. 4D13-2409.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.

      Paul Nettleton of Carlton Fields, P.A., Jay B. Green of Green, Ackerman & Frost, P.A., Boca Raton, and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for petitioner.
    Benjamin C. Hassebrock and Christine G. Gudaitis of Ver Ploeg & Lumpkin, P.A., Miami, for respondents.
   PER CURIAM.

State Farm Florida Insurance Company petitions for a writ of certiorari from trial court orders that denied its motion to abate an insurance bad faith action and denied its motion for protective order from bad faith discovery. State Farm argues that respondents cannot maintain their first-party bad faith action because State Farm invoked the appraisal provision of the insurance policy and paid the appraisal award. State Farm further maintains that it cannot be liable in a statutory bad faith action under section 624.155(1)(b) 1., Florida Statutes (2012), unless there has been a determination that it breached the insurance contract. Finally, State Farm contends that the civil remedy notice filed by respondents was defective as it was not specific enough. As set forth below, this court lacks certiorari jurisdiction to review the nonfinal orders at issue, and we dismiss the petition.

Certiorari jurisdiction is lacking as State Farm is not materially harmed and has an adequate remedy on appeal from a final order. A nonfinal order denying a motion to dismiss an insurance bad faith action is not subject to interlocutory review via petition for writ of certiorari. Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.3d 344, 353-54 (Fla.2012); see also State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633, 636 (Fla. 2d DCA 2008); State Farm Fla. Ins. Co. v. Seville Place Condo. Ass’n, 74 So.3d 105, 109 (Fla. 3d DCA 2011) (en banc) (receding from prior cases to the contrary), rev. dismissed, 91 So.3d 133 (Fla.2012).

This court has granted certiorari review of premature bad faith discovery where an insurer was compelled to disclose its entire claim file and where a coverage dispute for the claim remained pending. See, e.g., State Farm Fla. Ins. Co. v. Aloni, 101 So.3d 412, 414 (Fla. 4th DCA 2012). That is not the situation here where no coverage dispute remains pending.

The alleged deficiency in the civil remedy notice that was served by respondents under section 624.155(3)(a), Florida Statutes (2012), is not renewable by cer-tiorari. Petitioner cites no authority that has held that a deficiency in a civil remedy notice under this statute may be reviewed by certiorari. Petitioner argues that the civil remedy notice is a condition precedent to bringing suit and should be subject to certiorari review like other presuit notice requirements. See Hord v. Taibi, 801 So.2d 1011, 1012 (Fla. 4th DCA 2001) (granting second-tier certiorari where plaintiff had not complied with the presuit notice requirements for bringing a medical malpractice action under Chapter 766). This argument is unavailing. Certiorari may be available where a party fails to comply with the procedural requirements of a presuit notice statute — such as by failing to file any notice at all — but certio-rari is not available to review the sufficiency of evidence presented to comply with presuit requirements. Williams v. Oken, 62 So.3d 1129, 1135-36 (Fla.2011). Similarly, certiorari is not available to review whether the civil remedy notice in this case was sufficiently specific.

Further, State Farm fails to demonstrate a departure from the essential requirements of law on any of its arguments. This court has held that an appraisal award may constitute a “favorable resolution” permitting a bad faith claim in certain circumstances. Trafalgar at Greenacres, Ltd. v. Zurich Am. Ins. Co., 100 So.3d 1155 (Fla. 4th DCA 2012); accord Hunt v. State Farm Fla. Ins. Co., 112 So.3d 547 (Fla. 2d DCA 2013). State Farm’s argument that Trafalgar was wrongly decided essentially concedes that the trial court did not depart from any clearly established law. Whether a bad faith claim may be maintained where an appraisal provision has been invoked and paid depends on the circumstances of the case, and State Farm has an adequate remedy on appeal from a final judgment in an appropriate case.

Finally, with respect to the alleged lack of sufficient specificity in the civil remedy notice, we first observe that State Farm did not object to the alleged lack of specificity when it received the notice and that the Department of Financial Services did not reject the notice for lack of specificity. See § 624.155(3)(c), Fla. Stat. (2012) (permitting the department to return a notice that does not provide the specific information required by the statute). Further, courts have rejected the argument that a civil remedy notice must allege a specific cure amount. Hunt, 112 So.3d at 551 (additional citations therein). Thus, State Farm failed to establish that the trial court departed from the essential requirements of law in rejecting this claim.

Because this court lacks certiorari jurisdiction, this petition is dismissed without prejudice for State Farm to argue these issues on appeal from a final order.

Petition dismissed.

MAY, GERBER and FORST, JJ„ concur.


author: DAMOORGIAN, C.J.

text:
    Walter TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-869.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.

      Antony P. Ryan, Regional Counsel, Jennifer Workman Jesness and Louis G. Car-res, Assistant Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Appellant, Walter Taylor (“Taylor”), appeals his conviction for sexual battery on a child less than eleven years of age. On appeal, Taylor claims the trial court erred on four grounds: (i) denying Taylor’s motion to dismiss based on preindictment delay; (ii) denying Taylor’s motion for judgment of acquittal; (iii) admitting the victim’s prior identification of Taylor; and (iv) admitting impermissible comments during the State’s closing argument. We affirm on all grounds and write only to address the issue concerning the prein-dictment delay.

The State indicted Taylor in June 2009 after DNA evidence connected Taylor to an incident that occurred twenty-six years earlier. Taylor filed a motion to dismiss, arguing that the twenty-six-year delay violated his due process rights. At the hearing on the motion to dismiss, Taylor’s counsel argued that the preindictment delay itself presumptively caused him prejudice. In support of this contention, counsel argued that -witnesses had been lost or their memories had faded, and physical evidence had been available for testing. The trial court denied the motion to dismiss without articulating any specific grounds. This appeal follows.

In Florida, the legal test to establish a due process violation based on preindictment delay has two prongs: (i) the defendant must show actual prejudice from the delay; and (ii) the trial court must weigh the State’s reasons for the delay against the specific prejudice caused to the defendant. Overton v. State, 976 So.2d 536 (Fla.2007). As a threshold requirement, the defendant bears the burden of establishing actual prejudice. State v. Grady, 657 So.2d 1254, 1255 (Fla. 2d DCA 1995); see also Evans v. State, 808 So.2d 92, 100 (Fla.2001) (same); State v. Hills, 467 So.2d 845, 848 (Fla. 4th DCA 1985) (same). The trial court engages in the second prong’s balancing test only if the defendant meets this threshold requirement. Grady, 657 So.2d at 1255.

For the trial court to find actual prejudice under the first prong, Taylor’s “contention of prejudice must be based on more than mere speculation, and must be supported by substantial evidence.” Evans, 808 So.2d at 100; see also State v. Hope, 89 So.3d 1132, 1137 (Fla. 1st DCA 2012) (“ ‘Speculative or general allegations of prejudice, such as a disappearance of alibi witnesses or failure of memory are insufficient.’ ”) (citations omitted); State v. Moore, 423 So.2d 1010, 1011 (Fla. 4th DCA 1982) (same). Further, this prejudice must constitute “a material impairment” to the preparation of the defendant’s case, and the defendant must provide an explanation of how the unavailable witnesses’ testimony “would have been both favorable and material.” State v. Ingram, 736 So.2d 1215, 1216 (Fla. 5th DCA 1999) (citations and internal quotations omitted).

Here, Taylor failed to show specific, actual prejudice. For example, Taylor merely claimed the loss of potential witnesses or a general loss of memory of unspecified witnesses. Taylor did not identify the witnesses or describe their testimony and its impact on Taylor’s guilt. Further, Taylor simply pointed out that the State may have delayed in testing the physical evidence in its possession and that lost “records” could provide exculpatory evidence. However, Taylor failed to specifically identify whether this hypothetical evidence would be material to his case or how the State’s delay in testing the physical evidence prejudiced him. In short, Taylor did not meet his burden of establishing actual prejudice, and thus the trial court was not required to engage in the balancing test under the second prong. Evans, 808 So.2d at 100; Hills, 467 So.2d at 848.

Accordingly, we affirm Taylor’s conviction for sexual battery on a child less than eleven years of age.

Affirmed.

CIKLIN and CONNER, JJ., concur.


author: GERBER, J.

text:
    STATE of Florida, Appellant, v. Barry Michael SCHULTZ, Appellee.
    No. 4D12-1961.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Barbara J. Scheffer, Palm Beach Gardens, for appellee.
   GERBER, J.

The state appeals from the circuit court’s order granting the defendant’s motion to dismiss six trafficking in oxycodone charges under section 893.135(l)(c)l.c., Florida Statutes (2009). The state argues the court erred in finding that the state was limited to charging the defendant, a medical doctor, with illicit conduct by a prescribing practitioner under section 893.13(8), Florida Statutes (2009). We agree with the state’s argument and reverse.

The state’s information charged the defendant with twelve counts. Six of those counts were charges for trafficking in oxy-codone. In each of those six counts, the state alleged that the defendant knowingly sold or delivered to a person, “by means of prescription written in bad faith and not in the course of professional practice,” 28 grams or more of oxycodone, contrary to section 893.135(l)(c)l.c., Florida Statutes 1(2009). Section 893.135(l)(c)l.e., in perti-Inent part, provides:

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:
(c)l. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydromor-phone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(l)(b), (2)(a), (3)(c)3., or (3)(c)4., or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs” .... If the quantity involved:
c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.

§ 893.135(l)(c)l.c., Fla. Stat. (2009).

The state’s other six counts against the defendant were charges for illicit conduct by a prescribing practitioner. In each of those counts, the state alleged that the defendant willfully wrote “a prescription for a controlled schedule II substance for which there is no medical necessity or which was in excess of what was medically necessary to treat” certain patients, contrary to sections 893.13(8)(b) and (d), Florida Statutes (2009). Section 893.13(8), in pertinent part, provides:

(a) ... [A] prescribing practitioner may not:
1. Knowingly assist a patient [or] other person ... in obtaining a controlled substance through deceptive, untrue, or fraudulent representations in or related to the practice of the prescribing practitioner’s professional practice;
2. Employ a trick or scheme in the practice of the prescribing practitioner’s professional practice to assist a patient [or] other person ... in obtaining a controlled substance;
3. Knowingly write a prescription for a controlled substance for a fictitious person; or
4. Write a prescription for a controlled substance for a patient [or] other person ... if the sole purpose of writing such prescription is to provide a monetary benefit to, or obtain a monetary benefit for, the prescribing practitioner.
(b) If the prescribing practitioner wrote a prescription or multiple prescriptions for a controlled substance for the patient ... for which there was no medical necessity, or which was in excess of what was medically necessary to treat the patient ... that fact does not give rise to any presumption that the prescribing practitioner violated subparagraph (a)l., but may be considered -with other competent evidence in determining whether the prescribing practitioner knowingly assisted a patient [or] other person ... to obtain a controlled substance in violation of subparagraph (a)l.
(c) A person who violates paragraph (a) commits a felony of the third degree ....
(d) Notwithstanding paragraph (c), if a prescribing practitioner has violated paragraph (a) and received $1,000 or more in payment for writing one or more prescriptions or, in the case of a prescription written for a controlled substance described in s. 893.135, has written one or more prescriptions for a quantity of a controlled substance which, individually or in the aggregate, meets the threshold for the offense of trafficking in a controlled substance under s. [893.135], the violation is reclassified as a felony of the second degree and ranked in level 4 of the Criminal Punishment Code.

§ 893.13(8), Fla. Stat. (2009).

The defendant moved to dismiss the six counts alleging violations of section 893.135(l)(e)l.c. In the motion, the defendant primarily argued that because section 893.13(8) specifically addresses a prescribing practitioner’s alleged illicit conduct, the state could not charge him with the more general crime of drug trafficking under section 893.135.

The state’s response to the motion to dismiss raised three primary arguments: (1) case law has held that physicians can be charged with trafficking of controlled substances; (2) section 893.135(l)’s introductory phrase, that its provisions apply “notwithstanding the provisions of s. 893.13,” clearly supports the state’s authority to charge physicians under section 893.135; and (3) section 893.13(8) does not eliminate the possibility of the state charging practitioners with trafficking, but rather provides the state with an alternative means to charge practitioners.

The circuit court entered an order granting the defendant’s motion to dismiss the six trafficking counts. The court’s order, in pertinent part, reasoned:

This motion involves the principle in criminal law that specific statutory provisions are to control over more general criminal provisions. In other words, if certain conduct could fairly be interpreted as violating more than one criminal statute, generally that statute which relates to the conduct in question with greater specificity is the one that should apply. Generally the statute with the lesser penalty should be favored.
The penalties for violating [section] 893.13(8) are less than for violating [section] 893.135[,] and [sections] 893.18(a)!, 2, 3[and] 4 clearly apply with great specificity to [the] conduct alleged here,

(internal citations omitted).

This appeal followed. The parties’ arguments effectively mirror those raised in the circuit court. Our review is de novo. See Knipp v. State, 67 So.3d 376, 378 (Fla. 4th DCA 2011) (a circuit court order granting a motion to dismiss is reviewed de novo); McGrill v. State, 82 So.3d 130, 131 (Fla. 4th DCA 2012) (a circuit court’s interpretation of a statute is reviewed de novo).

We conclude that the circuit court should have denied the defendant’s motion to dismiss. Our conclusion is based on three grounds.

First, the plain language of section 893.135(l)’s introductory phrase controls. Section 893.135(l)’s introductory phrase provides that the statute applies “notwithstanding the provisions of s. 893.13.” Thus, the state may charge a prescribing practitioner under section 893.135(1) notwithstanding the existence of section 893.13(8). Put another way, the existence of section 893.13(8) does not preclude the state from charging a prescribing practitioner under section 893.135(1)(c). See Therrien v. State, 914 So.2d 942, 945 (Fla.2005) (“Where the language of a statute is clear and unambiguous and conveys a definite meaning, we construe it accordingly, and need not resort to additional rules of construction.”).

Second, even if the plain language of section 893.135(l)’s introductory phrase did not control, the United States Supreme Court, our Florida Supreme Court, and this court all have held that when two statutes govern a defendant’s criminal conduct, a prosecutor has the discretion to decide whether and how to prosecute the defendant. See United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2204-05, 60 L.Ed.2d 755 (1979) (although selectivity in the enforcement of criminal laws is subject to constitutional constraints such as the Equal Protection Clause, “there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion [the prosecutor] exercises when choosing one of two statutes with identical elements”); Fayerweather v. State, 332 So.2d 21, 22 (Fla.1976) (“It is not unusual for a course of criminal conduct to violate laws that overlap yet vary in their penalties. Multiple sentences are even allowed for conduct arising from the same incident. Traditionally, the legislature has left to the prosecutor’s discretion which violations to prosecute and hence which range of penalties to visit upon the offender.”) (internal citations omitted); Seybel v. State, 693 So.2d 678, 679 (Fla. 4th DCA 1997) (“[U]n-der Florida’s constitution, the state attorney has the discretion in deciding whether and how to prosecute a defendant.”) (citation omitted). Applied here, the state has the discretion to prosecute the defendant under section 893.135(l)(c) — in order to impose that statute’s penalties of a first-degree felony with mandatory minimum prison sentences and fines — in lieu of section 893.13(8)’s penalties of either a second- or third-degree felony.

Third, denial of the motion to dismiss would be consistent with pre-section 893.13(8) precedent permitting the state to prosecute a prescribing practitioner under section 893.135(l)’s predecessor statute, section 893.13(l)(a). See, e.g., Cilento v. State, 377 So.2d 663, 666 (Fla.1979) (“Status as a physician does not in some way immunize one from charges of selling. Rather, whether the physician’s or other individual’s conduct amounts to selling or merely dispensing is a function of the particular facts of the case.... The fact that certain conduct might violate more than one criminal provision does not necessarily render it invalid.”) (citation omitted); State v. Vinson, 298 So.2d 505, 507 (Fla. 2d DCA 1974) (“[I]t seems reasonable to assume that by including the words ‘actual or constructive’ within its definition of delivery, the Legislature intended to encompass a situation where a doctor, by reason of [the doctor’s] right to issue prescriptions, does so in bad faith and thereby provides a user with the vehicle with which to obtain the drug [which the user] could not otherwise acquire.”).

The defendant nevertheless argues we should hold that section 893.13(8) is controlling over section 893.135(l)(c). He raises three grounds: (1) the rule of statutory construction that “a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms,” Adams v. Culver, 111 So.2d 665, 667 (Fla.1959); (2) a certain sentence from diento which, according to the defendant, anticipates the possibility of a different decision after the enactment of section 893.13(8); and (3) the second district’s rejection of a state argument in O’Hara v. State, 964 So.2d 839 (Fla. 2d DCA 2007), that section 893.135(l)’s introductory phrase negates the application of a different provision of section 893.13.

All three grounds are unpersuasive. We address each in turn.

Special vs. General

We recognize the rule of statutory construction that “a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms.” Adams, 111 So.2d at 667. However, when this court was confronted with a case in which that rule of statutory construction conflicted with a prosecutor’s constitutional authority to decide whether and how to prosecute a defendant, we enforced the latter. See Seybel, 693 So.2d at 679-80 (“We need not reach [appellant’s argument that a special statute is controlling over a general statute], as appellant acknowledges that under Florida’s constitution, the state attorney has the discretion in deciding whether and how to prosecute a defendant.”) (citation omitted). We maintain that position.

diento’s Reasoning

diento’s reasoning ultimately refutes the defendant’s argument.

In diento, the state charged a medical doctor with selling or delivering a controlled substance in violation of section 893.135(l)(c)’s predecessor, section 893.13(l)(a), Florida Statutes (1975). 377 So.2d at 664. Similar to the information here, the information in diento charged, in pertinent part, that the doctor “did unlawfully and feloniously sell or deliver to (a named individual), by means of a prescription issued in bad faith and not in the course of professional practice, a controlled substance, to wit: methaqualone.... ” Id.

In a motion to transfer the case from circuit court to county court, the defendant contended that the information effectively charged no more than the misdemeanor crime of distributing or dispensing a controlled substance under then-section 893.13(2), now numbered as section 893.13(7)(a)l. Id. at 664-65. The circuit court denied the motion to transfer. Id. at 664. The defendant later changed his plea to nolo contendere, but reserved his right to appeal the circuit court’s ruling. Id.

On direct appeal to our supreme court, the supreme court affirmed. Id. at 666. In reaching its decision, the supreme court stated:

Section 893.13, Florida Statutes (1975), which defines “prohibited acts” under the controlled substances law, does not explicitly cover the conduct of a medical doctor who issues a prescription for a controlled substance outside the course of his professional practice.

Cilento, 377 So.2d at 665-66.

The defendant relies on the supreme court’s above-quoted statement for the argument that, after the legislature added subsection 898.13(8) to section 893.13 in 2002, the statute “could not be clearer in specifically defining a crime and its punishment for prescriptions when unlawfully provided by practitioners.”

We disagree with this argument. While diento perhaps foreshadowed the legislature’s later creation of section 893.13(8), the coincidence of such a temporal relationship does not mean that the legislature intended to preclude the state from charging a prescribing practitioner under section 893.135(l)(c).

Moreover, the supreme court’s ultimate reasoning for its affirmance in diento refutes the defendant’s argument. The court reasoned:

Through his plea of nolo contendere, [the defendant] has conceded that he did in fact so sell or deliver quaaludes. It appears clear to us that such conduct constitutes a violation of 891.13(l)(a). The admitted facts do form an accurate basis for the charging of this felony. Status as a physician does not in some way immunize one from charges of selling. Rather, whether the physician’s or other individual’s conduct amounts to selling or merely dispensing is a function of the particular facts of the case. [The defendant] argues that this result is irrational in that it is susceptible to both felony and misdemeanor penalties, to be finally determined at the discretion of the prosecutor. The fact that certain conduct might violate more than one criminal provision does not necessarily render it invalid. Fayerweather v. State, 332 So.2d 21 (Fla.1976). [The defendant], as a physician, is capable of violating either or both of the provisions, 898.13(1) and 893.13(2).

Id. at 666 (emphásis added).

To apply dlento’s reasoning here, it is a function of the particular facts of this case, and the state’s discretion, see Fayerweather, 332 So.2d at 22, whether the defendant’s conduct amounts to:

• the first-degree felony of selling or delivering a controlled substance under section 893.135(l)(c), or
• the second- or third-degree felony of illicit conduct by a prescribing practitioner under section 893.13(8), or
• the misdemeanor of distributing or dispensing a controlled substance in violation of chapter 893 under section 893.13(7)(a).

See Cilento, 377 So.2d at 666. The fact that the defendant’s alleged conduct might violate more than one of the foregoing provisions does not necessarily render any of them inapplicable. See id. The defendant is capable of violating any or all of the provisions. See id. Thus, the defendant’s status as a prescribing practitioner does not in some way immunize him from any of the charges. See id.

O’Hara’s Reasoning

O’Hara's reasoning also ultimately refutes the defendant’s argument.

In O’Hara, the defendant (a layperson) was convicted of trafficking in hydroco-done under section 893.135(l)(c). 964 So.2d at 840. He appealed the trial court’s denial of his requested jury instruction that it was not illegal to possess hydroco-done if it had been prescribed. Id. The defendant argued, in pertinent part, that the first part of section 893.135’s introductory phrase of “Except as authorized in this chapter ... and notwithstanding the provisions of s. 893.13” made available to him the prescription defense provided in section 893.13(6), Florida Statutes (2004), which prohibits simple possession of a controlled substance. Id. at 840-41 (emphasis added). Section 893.13(6), in pertinent part, provides:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription■ or order of a practitioner while acting in the course of his or her professional practice ....

§ 893.13(6)(a), Fla. Stat. (2004) (emphasis added). The state contended that the second part of section 893.135’s introductory phrase “Except as authorized in this chapter ... and notwithstanding the provisions of s. 893.13” precluded any reliance on section 893.13(6)’s prescription defense in trafficking cases. O’Hara, 964 So.2d at 843 (emphasis added).

The second district held that the defendant was entitled to the prescription defense instruction and, accordingly, reversed for a new trial. Id. at 840. Our sister court reasoned, in pertinent part:

The State invokes the oft-cited principle that when the language of a statute conveys a clear and definite meaning, courts will not resort to rules of statutory interpretation and construction. But this seemingly simple principle is subject to a number of qualifications. Under one of these, courts are admonished not to read statutory language in isolation. It must be taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is a part. Consistent with this principle, the doctrine of in pari materia requires us to construe statutes relating to the same subject matter together in order to harmonize them and to give effect to the Legislature’s intent. Whenever possible, we must give full force to all statutory provisions.
Applying these principles here, it is obvious that sections 893.13 and 893.135 are part of a statutory scheme addressing the possession of controlled substances, with the latter statute imposing more severe penalties for possessing larger, “trafficking,” amounts of the drugs....
[The legislative] history discloses that [section 893.135’s introductory phrase] was placed in the statute to address a narrow concern: that offenders who possessed trafficking amounts of certain drugs might be prosecuted instead for simple possession under section 893.13, and thus they would be permitted to escape the more severe penalties mandated under the trafficking statute. Nothing in the enactment itself or in the history of the bills that resulted in the new law suggests that the Legislature intended or even contemplated the expansive reading advocated by the State, such that the exceptions or defenses in section 893.13 having nothing to do with penalties also would be excluded from the trafficking statute.

Id. at 843-44 (emphasis added; internal citations omitted).

The second district’s reasoning emphasized above favors the state here. Unlike O’Hara, this case has nothing to do with the exceptions or defenses in section 893.13, and has everything to do with the different penalties under sections 893.13(8) and 893.135(l)(c). Thus, just as our sister court concluded that section 893.135’s introductory phrase operates to prevent offenders who possessed trafficking amounts of certain drugs from being prosecuted for simple possession under section 893.13, we conclude that section 893.135’s introductory phrase also operates to allow the state the discretion to prosecute prescribing practitioners under the second- or third-degree felony penalties of section 893.13(8) or the more severe penalties of a first-degree felony with mandatory minimum sentences and fines under section 893.135(l)(c).

We have considered the defendant’s other arguments and conclude without further discussion that they are without merit.

Based on the foregoing, we reverse the circuit court’s order granting the defendant’s motion to dismiss the charges. We remand for proceedings consistent with this opinion.

Reversed and remanded.

MAY and TAYLOR, JJ., concur.


author: CONNER, J.

text:
    J.D.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1973.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 2013.

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

Because J.D.J. was fifteen minutes late to court, he was found in direct criminal contempt and given five additional days in secure detention. Willfulness is required for an individual to be detained or incarcerated for direct criminal contempt. Because the unrebutted facts demonstrate that J.D.J. did not have control over his arrival time, his tardiness could not have been willful; therefore, we reverse. Further, fundamental error is present when procedural rules governing due process for direct criminal contempt proceedings are not scrupulously followed. Florida Rule of Juvenile Procedure 8.150(a) requires a juvenile be given notice and an opportunity to be heard-including an opportunity to present evidence of excusing or mitigating circumstances. J.D.J. was not permitted to present such evidence; therefore, the trial court fundamentally erred. J.D.J. also argues that the trial court erred in failing to make sufficient findings of fact; we disagree and affirm on that issue without discussion.

Factual Background

At the hearing, the court called for J.D.J.; however, he was not yet present. J.D.J.’s mother, who had already arrived, explained that he was on his way to court from her daughter’s house. She further explained that she was unaware that he was going to be released from detention the night before his court date and because she was on medication she was unable to pick him up from the detention center. Instead, his sister retrieved him from the detention center and kept him overnight. His cousin was supposed to drop him off at court that morning for the hearing. The mother further explained that she had called and J.D.J. had already left with his cousin, meaning they would be at court shortly. The court asked if there were any objections to finding that he had violated home detention. J.D.J.’s counsel responded that she would prefer to wait for her client to be present. However, the court explained that it had other things to do and would not wait.

The court moved onto a different case and later returned to J.D.J.’s case. At that point, he was present, and he was asked whether he was made aware of the court date when he was released from detention the previous night. J.D.J. responded in the affirmative. The court inquired as to why he was fifteen minutes late to court, and J.D.J. responded that he was at his sister’s house and had to find a ride to the courthouse in Martin County from Fort Pierce. He explained that as soon as he woke up he called his cousin to come pick him up, but initially there was no answer.

J.D.J. was found in direct criminal contempt for his tardiness. The trial court did not make lengthy factual findings in its detention order; rather it merely explained that J.D. J. was to be detained for a total of ten days, five of which resulted from being late to court and the other five for violation of home detention.

Analysis

Willfulness

It is an abuse of discretion for the trial court to find a juvenile in direct criminal contempt absent evidence of willful conduct. G.G.J. v. State, 28 So.3d 239 (Fla. 4th DCA 2010). The conduct must also demonstrate “the accused intended to hinder or obstruct the administration of justice.” Carter v. State, 954 So.2d 1185, 1186 (Fla. 4th DCA 2007). In Carter, we explained that where the unrebutted evidence demonstrates that a defendant was told by his court-appointed counsel that it was unnecessary for him to attend docket call, there is insufficient evidence of willfulness to support a finding of direct criminal contempt. Id.

Circumstantial evidence may form a sufficient basis to demonstrate the necessary intent. Forbes v. State, 933 So.2d 706, 712 (Fla. 4th DCA 2006). In certain cases, this means that the action which leads to the finding of contempt may itself infer willfulness. Id. In Forbes, as a member of a venire, the defendant was given specific instructions on how to answer questions, and placed under oath; he failed to raise his hand when a truthful answer would have required him to do so. Id. And, when directly questioned, he answered falsely. Id. We held that in such circumstances, it is proper to infer the intent to obstruct the administration of justice and find willfulness. Id. At 713. Therefore, we affirmed the trial court’s criminal contempt order because it was supported by sufficient evidence. Id.

Unlike the facts in Forbes, the instant facts alone do not lead directly to the conclusion that J.D.J.’s tardiness was willful. Rather, the unrebutted facts demonstrate that he lacked control over his arrival time. Without a driver’s license, J.D.J. could not drive himself to court and there is nothing in the record to suggest the courthouse was within reasonable walking distance. It is not reasonable to expect a fifteen-year old to engage a cab to get to court. No facts indicated J.D.J. was dragging his feet getting to court. Because the facts of this case fall more in line with those of Carter, 954 So.2d at 1186, where unrebutted testimony demonstrated that the defendant did not voluntarily make the choice to ignore the trial court’s orders, we agree with J.D. J. that the evidence did not sufficiently demonstrate willfulness. Therefore, we find that the trial court erred and reverse.

Due Process

Because J.D.J. failed to object to insufficient notice of the contempt proceéd-ing, error arising out of failure to give notice would have to be fundamental to be reversible. See Castaneda v. State, 77 So.3d 862, 863 (Fla. 3d DCA 2012) (applying the equivalent adult standard of direct criminal contempt). However, failure to scrupulously follow the mandates of the procedural rule which guides the court in providing due process to a defendant charged with direct criminal contempt is fundamental error. Id.

Where the act giving rise to contempt occurs in the actual presence of the court, Florida Rule of Juvenile Procedure 8.150(a) specifically requires notice, an opportunity to be heard, and a recital of the facts upon which the court’s determination is based. Rule 8.150(a) expressly mandates that the opportunity to be heard includes an opportunity to present evidence of excusing or mitigating circumstances.

At no point did the trial court conduct an evidentiary hearing on contempt or allow J.D.J. the opportunity to present evidence of excusing or mitigating circumstances. Instead, the trial court developed the facts of the situation by asking questions and soliciting unsworn answers. As such, fundamental error occurred.

Having concluded the facts were insufficient to support a finding of willfulness and applicable rules of juvenile procedure were not followed, we reverse the part of the order adjudicating J.D.J. in direct criminal contempt and imposing five days of detention for contempt for failure to appear.

Reversed.

DAMOORGIAN, C.J., and CIKLIN, JJ., concur.

      . We have held that a defendant who fails to appear may be summarily punished for direct criminal contempt after failing to provide an adequate excuse for the nonappearance. Woods v. State, 600 So.2d 27, 29 (Fla. 4th DCA 1992) (citing Aron v. Huttoe, 258 So.2d 272 (Fla. 3d DCA 1972), adopted, Aron v. Huttoe, 265 So.2d 699 (Fla.1972)). But as we noted in G.G.J. v. State, 28 So.3d 239, 240 n. 1 (Fla. 4th DCA 2010), the Second District disagrees with our position. See Kelley v. Rice, 800 So.2d 247, 252-53 (Fla. 2d DCA 2001) (disagreeing with Woods' interpretation of Aron and holding that a failure to appear may be punished as indirect criminal contempt).

      . The detention center serving Martin County is located at Fort Pierce in the adjoining county, St. Lucie County.

      . No issue is raised on appeal concerning the propriety of the five days imposed for violation of home detention.


author: WALLIS, J.

text:
    Richard G. PACKO, Appellant, v. Kimberly S. PACKO, Appellee.
    No. 5D12-238.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2013.

      Brian P. North of Kenny Leigh & Associates, Gainesville, for Appellant.
    Anna K. Jarvis of Anna K. Jarvis Law, P.A., Ponte Vedra Beach, for Appellee.
   WALLIS, J.

The former husband, Richard G. Packo, appeals the final judgment that dissolved his marriage to the former wife, Kimberly S. Packo. We reverse and remand for the trial court to make the necessary valuations for the equitable distribution of marital assets and to reconsider the life insurance obligation imposed on the former husband or support such obligation with the requisite findings. We affirm the final judgment in all other respects.

We review the trial court’s final judgment dissolving the parties’ marriage for an abuse of discretion. Vitalis v. Vitalis, 799 So.2d 1127, 1130 (Fla. 5th DCA 2001). The trial court’s discretion, however, is curtailed by certain statutory and judicially created requirements. E.g., id. at 1131 (reversing final judgment of dissolution for failure to make statutorily required findings).

A. Equitable Distribution

Section 61.075(3), Florida Statutes (2011), requires a trial court to make specific findings of fact when equitably distributing marital property, “including the individual valuation of significant assets” and the “[ijdentification of marital liabilities.” Failure to comply with the requirements of section 61.075(3) is reversible error. Cook v. Cook, 714 So.2d 1158, 1158-59 (Fla. 5th DCA 1998) (citing Holmes v. Holmes, 709 So.2d 166 (Fla. 5th DCA 1998)); see also Calderon v. Calderon, 730 So.2d 400, 403 (Fla. 5th DCA 1999) (reversing and remanding, in part, because final judgment failed to state findings of value for three assets, regardless of how proper distribution appeared).

The final judgment on review lacks the requisite valuation for the marital home and other properties that the court distributed. Without proper valuation of the marital assets, this Court is unable to meaningfully review the trial court’s distribution for an abuse of discretion. Therefore, we reverse and remand for the trial court to make the required findings regarding the equitable distribution of the marital property.

B. Life Insurance Obligation

A trial court has the power to order any party responsible for payment of alimony to “purchase or maintain a “life insurance policy or a bond” to the extent necessary to protect the award.” § 61.08, Fla. Stat.; see also Foster v. Foster, 83 So.3d 747, 748 (Fla. 5th DCA 2011). This obligation, however, must be supported by “specific evidentiary findings regarding the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation.” Foster, 83 So.3d at 748 (citing Kotlarz v. Kotlarz, 21 So.3d 892, 893 (Fla. 1st DCA 2009)). A trial court’s failure to make the required findings constitutes reversible error. Id. (citing Schoditsch v. Schoditsch, 888 So.2d 709 (Fla. 1st DCA 2004)). Additionally, the amount of insurance ordered must be related to the support obligation; thus, it is error for a court to order a party to purchase a life insurance policy that is greater in value than the support obligation. Id. at 748-49 (citing Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004)).

Here, the life insurance requirement of the final judgment provides as follows:

The Husband shall be required to maintain a $500,000.00 life insurance policy, naming the Wife as the sole and irrevocable beneficiary, as security for his alimony and child support obligations. This shall be in effect within thirty (30) days of the date of this Final Judgment with written proof given to the Wife also within thirty (30) days of the date of this Final Judgment.

This language does not include the detailed findings needed to support its purpose. Accordingly, we also reverse and remand for the trial court to reconsider the life insurance obligation and, if applicable, make the necessary findings to support such an obligation.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

GRIFFIN and PALMER, JJ., concur.


author: WOLF, J.

text:
    Carlos M. GONZALEZ, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D12-3889.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2013.

      Bernard F. Daley of The Daley Law Firm, Tallahassee, for Appellant.
    Therese A. Savona, Assistant General Counsel, Prosecution Services Unit, Department of Health, Tallahassee, for Ap-pellee.
   WOLF, J.

Appellant, a licensed chiropractor, seeks review of a final administrative order from the Florida Department of Health (DOH), Board of Chiropractic Medicine (the Board), which disciplined appellant for violations of Florida Statutes and the Florida Administrative Code. He raises two issues on appeal. First, he argues the Board erred in failing to provide a formal hearing when disputed issues of material facts arose during an informal hearing. We find this argument was not properly preserved and may not be raised for the first time on appeal. Second, appellant argues the Board erred in depriving him of due process by considering matters during the hearing that were unrelated to those charged in the administrative complaint. We agree and reverse and remand for a new hearing.

1. Facts

DOH filed an administrative complaint to the Board against appellant charging him with (1) failing to keep legible chiropractic medical records in violation of multiple subsections of section 460.413(1), Florida Statutes (2007), and rule 64B2-17.0065, Florida Administrative Code; and (2) failing to provide patient records in violation of sections 460.413(1) and 456.057(6), Florida Statutes (2007), and rule 64B7-17.0055(1), Florida Administrative Code. Both violations related to appellant’s treatment of a patient in 2007.

After receiving the administrative complaint, appellant signed and notarized an “Election of Rights” form - indicating that he did not dispute the factual allegations of the complaint but elected an informal hearing to provide evidence to mitigate the violations. At the informal hearing, the Board adopted the facts of the administrative complaint as undisputed and permitted appellant to make a statement under oath. Initially, appellant addressed the sufficiency of his recordkeeping and fielded several relevant questions from board members. Appellant additionally contested the allegation that he failed to send the patient his medical records when requested. The Board’s questioning then expanded beyond appellant’s recordkeep-ing practices and his failure to send medical records. The Board made inquires into appellant’s staffing decisions, business locations, and his processes for conducting certain procedures, making diagnoses, and writing prescriptions. The board members also expressed concerns regarding appellant’s competency.

In the final order, the Board incorporated the facts from the administrative complaint, which found appellant failed to keep legible patient records and failed to provide patient records upon request. The Board “reprimanded” appellant’s license; imposed a fine of $3,500; placed his license on probation for four years; required a monitor to observe appellant’s performance and review his recordkeeping practices; and required appellant to take and pass a written examination. Additionally, appellant was charged with the cost of the investigation in the amount of $2,253.04. This timely appeal follows.

2. Failure to Terminate Informal Hearing

Appellant argues the Board erred in failing to terminate the informal hearing so that a formal hearing could be conducted when disputed issues of material facts arose. When it becomes apparent during an informal hearing that material facts are in dispute, an administrative board must grant a request for a formal hearing. Mixon v. Dep’t of State, Div. of Licensing, 686 So.2d 755, 756 (Fla. 1st DCA 1997). However, it is not the responsibility of the administrative board to terminate an informal hearing when a disputed issue of material fact becomes apparent if not requested to do so. Goodson v. Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Real Estate, 978 So.2d 195, 196 (Fla. 1st DCA 2008).

Appellant did not request a formal hearing when he believed a disputed issue of material fact arose during the informal hearing. Therefore, appellant’s argument was not properly preserved for review and may not be raised for the first time on appeal.

3. Scope of the Informal Hearing

Next, appellant argues the Board deprived him of due process by considering matters related to his competency that were not alleged in the complaint. DOH responds that all of the Board’s inquiry was related to the allegations raised in the complaint. Alternatively, DOH argues any error that may have occurred was harmless because appellant was not disciplined for any matters other than those contained in the complaint. We agree with appellant and reverse.

Administrative hearing boards may not consider matters not formally charged in the administrative complaint in imposing disciplinary sanctions without violating due process. See Chrysler v. Dep’t of Prof'l Regulation, 627 So.2d 31, 34-35 (Fla. 1st DCA 1993) (holding harmful error occurred when an administrative board discussed an unrelated civil malpractice case held in another state that was not addressed in the administrative complaint). A due process inquiry is not satisfied simply because the final order is limited only to the charges in the administrative complaint, regardless of how far the questions strayed during the hearing. Id. at 34.

Here, count 1 of the administrative complaint charged appellant with failing to keep legible chiropractic medical records, and count 2 charged him with failing to provide medical records upon request. However, the Board did not confine its inquiry to these issues during the hearing. The Board also questioned how appellant supervised his staff and his practices for diagnosing and treating patients. These discussions strayed from the sufficiency of his recordkeeping and into an inquiry regarding appellant’s competency. Further, a portion of the discipline imposed appears directly related to competency rather than the recordkeeping offenses that were charged. It is apparent the Board considered matters not charged in the complaint and therefore erred.

Further, we find this error was harmful. This court applies the harmless error test used in civil cases for violations of due process rights to a fair hearing. Chrysler, 627 So.2d at 34-35. The test for determining whether an error is harmful is “ ‘whether, but for such error, a different result may have been reached.’ ” Hogan v. Gable, 30 So.3d 573, 575 (Fla. 1st DCA 2010) (quoting Nat'l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000)).

Here, the board members made comments and raised questions that indicated, had the Board not erroneously considered appellant’s competency, a different result may have been reached. Specifically, during the penalty phase of the informal hearing, a board member suggested that the Board require appellant to take and pass a chiropractic examination because of his concerns regarding appellant’s competency. The Board imposed this examination in the final order. Additionally, the final order required monitoring not only of appellant’s recordkeeping, but also of his patient care. The final order required that the “monitor shall review ... [appellant’s] active patient records for the purpose of ascertaining whether proper care and treatment is provided and proper documentation is maintained.” (Emphasis added).

It is clear from the hearing and the discipline imposed that but for the Board’s error in considering matters related to appellant’s competency, the Board may have reached a different result. Therefore, the error was harmful. The final order is REVERSED, and this cause is remanded for a new hearing. When the Board convenes a new hearing, the Board must either confine itself to the charges in the original administrative complaint or amend the complaint to include additional charges.

REVERSED AND REMANDED.

ROBERTS and RAY, JJ., concur.


text:
    STATE of Louisiana v. Dearieus DUHEART.
    No. 2013-KA-1105.
    Supreme Court of Louisiana.
    June 14, 2013.
    Louisiana Department of Justice, James D. Caldwell, Attorney General, Jessica MP Thornhill, Assistant Attorney General, East Baton Rouge District Attorney’s Office, Hillar Clement Moore, III, District Attorney, Adam J. Haney, Assistant District Attorney, for Appellant.
    Manasseh, Gill, Knipe & Belanger, PLC, James Gordon Knipe, III, Baton Rouge, LA, for Appellee.
   PER CURIAM.

h The state has appealed for the second time from a ruling by the district court declaring La.R.S. 32:101(A)(1), which requires that a vehicle approaching and making a right hand turn do so “as close as practicable to the right-hand curb or edge of the roadway,” unconstitutionally vague.

In State v. Duheart, 12-0085 (La.10/26/12), - So.3d -, 2012 WL 5275493, this Court held that the district court erred in sua sponte declaring this statute unconstitutional as a basis for granting defendant’s motion to suppress evidence seized from him during a routine traffic stop of the vehicle in which he was riding as a passenger. In the event that its declaration of unconstitutionality did not survive appellate review, the district court also ruled that the pat-down search of defendant was justified, and, therefore, the firearm that this search yielded would not be suppressed. The court further ruled that statements made by defendant after the weapon was found but before he received Miranda warnings would be suppressed. We reversed the judgment of the district court to the extent that it suppressed the evidence based on a finding that La.R.S. 32:101 is unconstitutionally vague and remanded for reconsideration of its ruling of the motion to suppress.

|2Pefendant thereafter filed a second motion to suppress in which he expressly contended that both La.R.S. 32:101(A)(1), and comparable Baton Rouge City Ordinance Title 11:100(1), are unconstitutionally vague. The Attorney General was duly notified and filed a response. After a hearing held on February 13, 2013, the district court again granted the motion to suppress, once more ruling that both the state statute and city ordinance are unconstitutionally vague, on their face and as applied to the particular circumstances in defendant’s case.

The district court erred, however, in addressing the constitutionality of the state statute and city ordinance in the context of a motion to suppress evidence conducted in a case in which the state has not charged defendant with violation of La. R.S. 32:101(A)(1), or the city ordinance, but with commission of another crime, felon in possession of a firearm in violation of La.R.S. 14:95.1. At the time of the stop, the police acted on the basis of a presumptively valid statute (or ordinance), and a subsequent finding by a court of unconstitutionality has no bearing on the validity of the initial stop, or of the subsequent seizure of evidence, when prosecution is not for violation of that statute or ordinance but for another offense. Michigan v. DeFillippo, 443 U.S. 31, 40, 99 S.Ct. 2627, 2633, 61 L.Ed.2d 343 (1979) (“The subsequently determined invalidity of the Detroit ordinance on vagueness grounds does not undermine the validity of the arrest made for violation of that ordinance, and the evidence [consisting of controlled substances found in a search incident to that arrest] should not have been suppressed [in a prosecution for possession of controlled substances].”). Thus, in the context of a motion to suppress the firearm found on his person after the traffic stop, and statements he made on the scene to the police afterwards, defendant’s constitutional challenge presented the court with a purely hypothetical question that should not have had any bearing on the outcome of the motion, and was not a justiciable controversy 13ripe for review. See Louisiana Federation of Teachers v. State, 11-2226, pp. 4-5 (La.7/2/12), 94 So.3d 760, 763 (“The jurisprudence of this court is well settled that, courts will not render advisory opinions. Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely.... [A] case is not ripe for review unless it raises more than a generalized, speculative fear of unconstitutional action.”) (citations omitted).

Therefore, the judgment of the district court is again reversed to the extent that it suppressed the evidence based on a finding that La.R.S. 32:101(A)(1) is unconstitutionally vague. The case is remanded to the district court for reconsideration of its ruling on the motion to suppress and for further proceedings consistent with the views expressed herein.

JUDGMENT REVERSED; CASE REMANDED.


author: PER CURIAM. WEIMER, J.,

text:
    In re Subia EKRAM.
    No. 2010-OB-2415.
    Supreme Court of Louisiana.
    June 28, 2013.
    Schiff, Scheckman & White, Leslie J. Schiff, Steven Robert Scheckman, for Applicant.

      Committee on Bar Admissions, Monique Rene Drake, Scheuermann & Jones, LLC, Lawrence Joseph Centola, Jr., for Respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

|]The Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Subia Ekram, now known as Subia Ekram Weber, to sit for the Louisiana Bar Examination based on character and fitness concerns relating to (1) responses from her previous law firm employers indicating they would not rehire her or that they would not render any opinion concerning her character and fitness to practice law; (2) numerous traffic citations; and (3) her extensive involvement in civil litigation. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon her successful completion of the exam, she apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Ekram, 10-1210 (La.6/25/10), 38 So.3d 362.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon her application, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending petitioner be conditionally admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet her burden of proving that she has |2“good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(E). Among other issues revealed in the record before us, we find petitioner has engaged in a pattern of dishonest and untrustworthy behavior. This conduct is not mitigated by petitioner’s diagnosis of and treatment for a medical condition. Based upon these findings, we conclude she does not possess the requisite good moral character to practice law in Louisiana.

Accordingly, it is ordered that the application for admission be and hereby is denied.

ADMISSION DENIED.

WEIMER, Justice, dissents and assigns reasons.

HUGHES, Justice, dissents for the reasons given by WEIMER, J.

WEIMER, J.,

dissenting.

LI believe the applicant should be admitted conditionally.

Notably, the applicant graduated from Tulane University at the age of 19. Soon after graduating from college, however, she engaged in a series of youthful indiscretions, committed roughly ten years ago, which the applicant forthrightly admits are troubling. Two doctors testified that the applicant suffers from Attention Deficit Hyperactivity Disorder (ADHD), which is now controlled by medication and various coping techniques. While this does not justify some of her past behavior, it does put that behavior in perspective. The applicant acknowledges the Committee on Bar Admissions is justified in its concern and she agrees to conditional admission, which would serve to adequately protect the public. The commissioner who had the opportunity to evaluate the applicant in person recommended conditional admission. “This court generally gives deference to the credibility findings of the commissioner, although we make the ultimate decision regarding admission.” In re Holloway, 2011-0778, p. 2 n. 1 (La.7/2/12), 97 So.3d 1000, 1001 n. 1. Having reviewed the record, I concur with the commissioner’s recommendation. I would follow that recommendation.


text:
    Fred Owen MARTIN, Sr. v. Rosemary Stewart MARTIN.
    No. 2013-C-0783.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Martin, Rosemary Stewart;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 658-126; to the Court of Appeal, Fifth Circuit, No. 12-CA-549.

Denied.


text:
    Thomas Kent MORRISON, et al. v. LEFT GATE PROPERTY HOLDING, INC., et al.
    No. 2013-CC-1574.
    Supreme Court of Louisiana.
    July 16, 2013.
   In re Left Gate Properties d/b/a Texas Direct Auto;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2013-01111; to the Court of Appeal, Fourth Circuit, No. 2013-C-09240.

Denied.

KNOLL, WEIMER and HUGHES, JJ„ would grant.


text:
    Lolita WHITMORE v. Michael STAMPS.
    No. 2013-CJ-1539.
    Supreme Court of Louisiana.
    July 24, 2013.
   In re Stamps, Michael;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. D, No. 64,163 C/W 67,214; to the Court of Appeal, First Circuit, No. 2012 CU 2069 C/W 2012 CU 2070.

Denied.


text:
    STATE ex rel. Derrick GARRETT v. STATE of Louisiana.
    No. 2012-KH-1949.
    Supreme Court of Louisiana.
    July 31, 2013.
   In re Garrett, Derrick;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2012-10398; to the Court of Appeal, First Circuit, No. 2012 CW 0788.

Denied. Moot. The St. Tammany Parish District Attorney’s Office has acted.


text:
    STATE ex rel. Talmadge SEYMOUR v. STATE of Louisiana.
    No. 2013-KH-0433.
    Supreme Court of Louisiana.
    July 31, 2013.
   In re Seymour, Talmadge;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 391-294; to the Court of Appeal, Fourth Circuit, No. 2013-K-0027.

Denied. 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. Tillman ALFRED v. STATE of Louisiana.
    No. 2013-KH-0507.
    Supreme Court of Louisiana.
    July 31, 2013.
   In re Alfred, Tillman;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 45,691; to the Court of Appeal, Third Circuit, No. KH 12-01299.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Arthur BASALDUA v. STATE of Louisiana.
    No. 2013-KH-0510.
    Supreme Court of Louisiana.
    July 31, 2013.
   In re Basaldua, Arthur;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. H, Nos. 04-1922, 07-1035; to the Court of Appeal, Third Circuit, No. KH 12-00631.

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.


text:
    STATE ex rel. Kenneth MILLER v. STATE of Louisiana.
    No. 2013-KH-0531.
    Supreme Court of Louisiana.
    July 31, 2013.
   In re Miller, Kenneth;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 151,565; to the Court of Appeal, Second Circuit, No. 48,-075-KH.

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.


text:
    STATE of Louisiana in the Interest of F.V.A. and A.E.S.
    No. 2013-CJ-1840.
    Supreme Court of Louisiana.
    Aug. 1, 2013.
   In re State of Louisiana;—Other; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. C, No. 12467; to the Court of Appeal, First Circuit, No. 2013 CW 1239.

Writ granted. We find the trial court abused its discretion in ordering the children returned to the parents at this time. The children should be retained in the state’s custody pending a hearing scheduled for Friday, August 2, 2013.

HUGHES, J., would deny.


text:
    STATE of Louisiana in the Interest of F.C.
    No. 2013-CK-1379.
    Supreme Court of Louisiana.
    Aug. 2, 2013.
   In re State of Louisiana;—Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Juvenile Court Orleans Parish, No. 20136-080-04-DQ-F; to the Court of Appeal, Fourth Circuit, No. 2013-C-0814.

Denied.


text:
    STATE of Louisiana v. Stanley BERNIARD.
    No. 2013-KD-1815.
    Supreme Court of Louisiana.
    Aug. 2, 2013.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 505-697; to the Court of Appeal, Fourth Circuit, No. 2013-K-1039.

Denied.


text:
    STATE of Louisiana v. Chelsea DAIGLE.
    No. 2013-KK-1885.
    Supreme Court of Louisiana.
    Aug. 6, 2013.
   In re Daigle, Chelsea;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 03-13-0846; to the Court of Appeal, First Circuit, No. 2013 KW 0893.

Denied.


text:
    STATE of Louisiana in the Interest of F.C., et al.
    No. 2013-CK-1882.
    Supreme Court of Louisiana.
    Aug. 6, 2013.
   In re State of Louisiana;—Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 2013-080-04-DQ-F; to the Court of Appeal, Fourth Circuit, No. 2013-C-1070.

Writ granted. The rulings of the lower courts are reversed and the. evidence of other crimes, wrongs or acts is ordered to be admitted at trial.


text:
    STATE of Louisiana v. Brandy BASS.
    No. 2013-KK-1787.
    Supreme Court of Louisiana.
    Aug. 7, 2013.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 512-291; to the Court of Appeal, Fourth Circuit, No. 2013-K-0912.;

Stay denied. Writ denied.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Arnold LAGOS.
    No. 2013-KK-1907.
    Supreme Court of Louisiana.
    Aug. 7, 2013.
   In re Lagos, Arnold;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 476-371; to the Court of Appeal, Fourth Circuit, No. 2013-KH-1022.

Stay denied; writ denied.


text:
    STATE of Louisiana v. Bonnie L. ZAKOTNIK.
    No. 2013-KK-1533.
    Supreme Court of Louisiana.
    Aug. 7, 2013.
   In re Zakotnik, Bonnie L.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish First City Court, No. F1856441; to the Court of Appeal, Fifth Circuit, No. 13-K-414.

Denied.

JOHNSON, C.J., and WEIMER and HUGHES, JJ„ would grant.


text:
    Lonnie and Janice ROGERS v. Everett J. PASTUREAU.
    No. 2013-CJ-1833.
    Supreme Court of Louisiana.
    Aug. 8, 2013.
   In re Pastureau, Everett J.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, East Baton Rouge Family Court, No. 177,-826; to the Court of Appeal, First Circuit, No. 2012 CU 2008.

Stay denied. Writ denied.


text:
    PARKER, et al. v. PRO-WEST CONTRACTORS, LLC, et al.
    No. 2013-0C-1908.
    Supreme Court of Louisiana.
    Aug. 9, 2013.
   In re Parker, Jonathan;—Plaintiff; Applying For Supervisory and/or Remedial Writs.

Denied. This court lacks jurisdiction to review a judgment of the United States Court of Appeals for the Fifth Circuit.


text:
    STATE of Louisiana v. Lawrence BURTON.
    No. 2013-OK-1914.
    Supreme Court of Louisiana.
    Aug. 12, 2013.
   In re Burton, Lawrence;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 464412; to the Court of Appeal, First Circuit, No. 2013 KW 1141.

Stay denied; writ denied.

KNOLL, J., would grant and allow relator to file a new writ or to supplement the present writ in the court of appeal.

HUGHES, J., would grant and allow relator to re-file with the court of appeal.


text:
    STATE of Louisiana v. Noel JONES.
    No. 2013-KD-1912.
    Supreme Court of Louisiana.
    Aug. 12, 2013.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 511-211; to the Court of Appeal, Fourth Circuit, No. 2013-K-1105.

Writ granted. The ruling of the trial court is reversed. The evidence is part of the res gestae and provides narrative completeness to the State’s case. State v. Columb, 98-2813 (La 10/1/99), 747 So.2d 1074, 1076.

JOHNSON, C.J., and WEIMER and HUGHES, JJ. would deny.


text:
    Kevin MELBERT v. COMPSOURCE OKLAHOMA, et al.
    No. 2013-CD-1458.
    Supreme Court of Louisiana.
    Aug. 14, 2013.
   In re Melbert, Kevin;—Plaintiff; Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation, District 3, No. 1205767; to the Court of Appeal, Third Circuit, No. 00229-WCW.

Denied. Moot.


text:
    STATE of Louisiana v. George JOHNSON.
    No. 2013-KD-1890.
    Supreme Court of Louisiana.
    Aug. 23, 2013.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 515-994; to the Court of Appeal, Fourth Circuit, No. 2013-K-1071.

Stay denied; writ denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    STATE of Louisiana v. Laura HAGLE.
    No. 2013-KK-2013.
    Supreme Court of Louisiana.
    Aug. 26, 2013.
   In re Hagle, Laura;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. C, No. 2012-T-674; to the Court of Appeal, Third Circuit, Nos. KW 13-00524, KW 13-00671.

Stay denied; writ denied.


text:
    Theta Sanda, Widow of THEIN OO MYNT v. MI-DAS LINE, SA and Doun Kisen KK.
    No. 2013-CC-1704.
    Supreme Court of Louisiana.
    Aug. 28, 2013.
   In re Mi-Das Line, S.A.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 2012-9754; to the Court of Appeal, Fourth Circuit, No. 2013-C-0503.

Stay denied. Writ denied.


text:
    CAPITAL CITY PRESS, LLC d/b/a the Advocate and Koran Addo v. LOUISIANA STATE UNIVERSITY SYSTEM BOARD OF SUPERVISORS and Hank Danos, Chairman. The Times-Picayune, LLC and Quincy Hodges v. Louisiana State University System Board of Supervisors and Hank Danos, Chairman.
    No. 2013-CC-1994.
    Supreme Court of Louisiana.
    Aug. 28, 2013.
   In re Danos, Hank; Louisiana State University System Board of Supervisors et al.;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, Nos. 620,353, 620,553; to the Court of Appeal, First Circuit, No. 2013 CW 0959.

Stay denied; writ denied. Insofar as relator is aggrieved by the August 14, 2013 judgment imposing sanctions for contempt, it has an adequate remedy by suspensive appeal. See La.Code Civ. P. art. 1915(A)(6); In re: Jones, 10-0066 (La.App. 5 Cir. 11/9/10), 54 So.3d 54.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Marty G. HUVAL.
    No. 2013-KK-1965.
    Supreme Court of Louisiana.
    Aug. 28, 2013.
   In re Huval, Marty G.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. C, No. 2011-CR-54249; to the Court of Appeal, Third Circuit, No. KW 13-00647.

Denied.


text:
    In re Michael J. RILEY, Sr.
    No. 2013-OB-1475.
    Supreme Court of Louisiana.
    Aug. 28, 2013.
   In re Disciplinary Counsel;—Other; Applying For Findings and Recommendations (Readmission) Office of the Disciplinary Board, No. 09-DB-037.

Readmission denied. Petitioner may not reapply for readmission until at least three years have passed from the date of this judgment. Supreme Court Rule XIX, § 24(1).

JOHNSON, C.J., and WEIMER and HUGHES, JJ., would docket for oral argument.


text:
    STATE of Louisiana v. Brandon SMITH.
    No. 2012-K-2358.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 499-092; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1669.

Granted.


text:
    STATE of Louisiana v. Jason T. DUHE.
    No. 2012-K-2677.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re State of Louisiana;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 503047-3; to the Court of Appeal, First Circuit, No. 2012 KA 0172. •

Granted.


text:
    Mary P. OGEA v. Travis MERRITT and Merritt Construction, LLC.
    No. 2013-C-1085.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Merritt Construction, LLC; Merritt, Travis;—Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2008-2321; to the Court of Appeal, Third Circuit, No. 12-1028.

Granted.


text:
    Robert HENDERSON, Individually, and on behalf of all those similarly situated members Lasers and the Drop v. BOARD OF TRUSTEES OF LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 2013-CC-1174.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Robert Henderson, et al.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 603088; to the Court of Appeal, First Circuit, No. 2013 CW 0233.

Not considered; not timely filed.


text:
    STATE ex rel. James Lee WASHINGTON v. STATE of Louisiana.
    No. 2012-KH-2661.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Washington, James Lee;—Plaintiff; Applying for Reconsideration of this Court’s action dated April 26, 2013, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 8-92-1100; to the Court of Appeal, First Circuit, No. 2012 KW 1458.

Reconsideration denied.

WEIMER, J., recused.


text:
    STATE ex rel. Steven CAMPBELL v. STATE of Louisiana.
    No. 2012-KH-2725.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Campbell, Steven;—Plaintiff; Applying for Reconsideration of this Court’s action dated May 31, 2013, Parish of Jefferson, 24th Judicial District Court Div. F, No. 05-578; to the Court of Appeal, Fifth Circuit, No. 12-KH-735.

Reconsideration denied.

HUGHES, J„ would grant.


text:
    STATE ex rel. Marylyn A. LeBLANC v. STATE of Louisiana.
    No. 2013-KH-0027.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re LeBlanc, Marylyn A.;—Plaintiff; Applying for Reconsideration of this Court’s action dated May 31, 2013, Parish of Lafayette, 15th Judicial District Court Div. G, No. 116138; to the Court of Appeal, Third Circuit, No. KH 11-01150.

Reconsideration denied.

HUGHES, J„ would grant.


text:
    STATE ex rel. Davidson LEWIS v. STATE of Louisiana.
    No. 2013-KH-0029.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Lewis, Davidson;—Plaintiff; Applying for Reconsideration of this Court’s action dated May 31, 2013, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 04-98-0407; to the Court of Appeal, First Circuit, No. 2012 KW 1489.

Reconsideration denied.

HUGHES, J., recused.


text:
    STATE ex rel. Willie TRIPLETT v. STATE of Louisiana.
    No. 2013-KH-0038.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Willie Triplett; Plaintiff; Applying for Reconsideration of this Court’s action dated May 31, 2013; Parish of E. Baton Rouge, 19th Judicial District Court Div. L. No. 06-94-0980; to the Court of Appeal, First Circuit, No. 2012 KW 1662.

Reconsideration denied.


text:
    Dennis GLASS v. Bryan GALLEY and Maurice L. Tynes.
    No. 2013-C-1025.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Galley, Bryan;—Defendant; Applying for Reconsideration of this Court’s action dated June 14, 2013, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2006-10371; to the Court of Appeal, First Circuit, No. 2012-CA-0767.

Not considered. See Louisiana Supreme Court Rule IX, § 6.


text:
    Dennis GLASS v. Bryan GALLEY and Maurice L. Tynes.
    No. 2013-C-1026.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Tynes, Maurice L.;—Defendant; Applying for Reconsideration of this Court’s action dated June 14, 2013; Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2006-10373; to the Court of Appeal First Circuit No. 2012-CA-076.

Not considered. See Louisiana Supreme Court Rule IX, § 6.


text:
    USA DISASTER DISCOVERY, INC. v. ST. TAMMANY PARISH GOVERNMENT and St. Tammany Parish Sheriff.
    No. 2013-C-0656.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re St. Tammany Parish Government;—Defendant; Applying for Rehearing of this Court’s action dated May 31, 2013, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2006-10170; to the Court of Appeal, First Circuit, No. 2012 CA 0679.

Rehearing denied.

GUIDRY and CLARK, JJ., would grant.

HUGHES, J., recused.


text:
    Shelley McCLENDON and Johnny McClendon v. Adrienne WILLIAMS, M.D., P & S Surgery Center, L.L.C., and Rosemary B. Stage, M.D.
    No. 2013-C-0693.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re P & S Surgery Center, L.L.C.;—Defendant; Applying for Rehearing of this Court’s order dated May 24, 2013, Parish of Ouachita, 4th Judicial District Court Div. I, No. 062269; to the Court of Appeal, Second Circuit, No. 47,577-CW.

Rehearing denied.

WEIMER, GUIDRY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Barbara and William VINCENT. In re La Capital Assistance Center.
    No. 2013-KK-0848.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re LA Capital Assistance Center, et al.;—Other; Applying for Rehearing of this court’s action dated May 24, 2013, Parish of Calcasieu, 14th Judicial District Court, Div. E, No. 24292-10; to the Court of Appeal, Third Circuit, No. KW 12-01448.

Rehearing denied.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Barbara and William VINCENT. (In re Louisiana Public Defender Board).
    No. 2013-KK-0859.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Louisiana Public Defender Board, et al.;—Other; Applying for Rehearing of this court’s action dated May 24, 2013, Parish of Calcasieu, 14th Judicial District Court, Div. E, No. 24292-10; to the Court of Appeal, Third Circuit, No. KW 12-01449.

WEIMER, J., would grant.


text:
    STATE ex rel. Eric COX v. STATE of Louisiana.
    No. 2012-KH-1951.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Cox, Eric;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 482-657; to the Court of Appeal, Fourth Circuit, No. 2012-K-0995.

Denied.


text:
    STATE ex rel. Henry J. MILLER v. STATE of Louisiana.
    No. 2012-KH-2675.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Miller, Henry J.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 503038; to the Court of Appeal, First Circuit, No. 2012 KA 0581.

Denied.


text:
    STATE of Louisiana v. Jonathan DAGENHART.
    No. 2012-KP-2710.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Dagenhart, Jonathan;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 222,871; to the Court of Appeal, Second Circuit, No. 47,-943-KW.

Denied.


text:
    STATE of Louisiana v. Brandon GEORGE.
    No. 2013-KP-0008.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re George, Brandon;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court, No. 118554; to the Court of Appeal, Third Circuit, No. EW 11-01515.

Denied.


text:
    STATE of Louisiana v. Jimmy L. BARTIE.
    No. 2013-KO-0039.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Bartie, Jimmy L.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 22315-08; to the Court of Appeal, Third Circuit, No. 12-673.

Denied.


text:
    STATE ex rel. Timothy TURNER v. STATE of Louisiana.
    No. 2013-KH-0091.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Turner, Timothy;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 03-564; to the Court of Appeal, Fifth Circuit, No. 12-KH-931.

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. Ernest and Susan MENARD.
    No. 2013-K-0101.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Menard, Ernest; Menard, Susan;—Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 510-468; to the Court of Appeal, Fourth Circuit, No. 2012-K-1123.

Denied.


text:
    STATE of Louisiana v. Horace TOPPINS.
    No. 2013-K-0105.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Toppins, Horace;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 04-10-0422; to the Court of Appeal; First Circuit, No. 2012 KA 0666.

Denied.


text:
    STATE of Louisiana v. Brian THOMPSON.
    No. 2013-KD-0111.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Thompson, Brian;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 09-3443; to the Court of Appeal, Fifth Circuit, No. 12-KA-409.

Denied.


text:
    STATE of Louisiana v. William David LAUGA.
    No. 2013-KO-0157.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Lauga, William David;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 476106; to the Court of Appeal, First Circuit, No. 2012 KA 0842.

Denied.


text:
    STATE of Louisiana v. John Franklin BREAUX.
    No. 2013-KO-0204.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Breaux, John Franklin;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. J, No. 76,255; to the Court of Appeal, Third Circuit, No. 12-397.

Denied.


text:
    STATE of Louisiana v. Jeffery GUILLORY.
    No. 2013-K-0216.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Guillory, Jeffery;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 05-10-0796; to the Court of Appeal, First Circuit, No. 2012 KA 0702.

Denied.


text:
    STATE of Louisiana v. Joe Louis FLORES.
    No. 2013-K-0217.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Flores, Joe Louis;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 26617; to the Court of Appeal, First Circuit, No. 2012 KA 0694.

Denied.


text:
    STATE of Louisiana v. Kelton L. SPANN.
    No. 2013-K-0219.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Spann, Kelton L.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. G, No. 10 CR8 107535; to the Court of Appeal, First Circuit, No. 2011 KA 2366.

Denied.


text:
    STATE ex rel. Derrick Jerome ALLEN v. STATE of Louisiana.
    No. 2013-OK-0242.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Allen, Derrick Jerome;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 577205; to the Court of Appeal, First Circuit, No. 2012 CW 1393.

Denied.

JOHNSON, C.J., would deny on the showing made.

WEIMER, J., recused.


text:
    STATE of Louisiana v. James Barry MALCOMBE.
    No. 2013-K-0252.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Malcombe, James Barry;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, Lafayette City Court, No. DT2011-751; to the Court of Appeal, Third Circuit, No. KW 12-01203.

Denied.


text:
    STATE of Louisiana v. Bryant BOUDOIN.
    No. 2013-K-0255.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Boudoin, Bryant;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 10-4343; to the Court of Appeal, Fifth Circuit, No. 11-KA-967.

Denied.

GUIDRY, J., recused.


text:
    STATE ex rel. Edward L. HARRIS v. STATE of Louisiana.
    No. 2013-KH-0270.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Harris, Edward L.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. 09-F2122; to the Court of Appeal, Second Circuit, No. 46,-721-KA.

Denied.


text:
    Susan MENARD v. CITY OF NEW ORLEANS ENFORCEMENT AND HEARINGS BUREAU.
    No. 2013-C-0278.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Menard, Ernest C.; Menard, Susan;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, City of New Orleans Code Enforcement and Hearings Bureau, No. CEHB-11-7968; Civil District Court Div. C, No. 2012-00075; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1161.

Denied.


text:
    STATE of Louisiana v. James D. FLEMONES.
    No. 2013-K-0293.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Flemones, James D.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR-2011-580; to the Court of Appeal, Third Circuit, No. 12-616.

Denied.


text:
    STATE ex rel. Leslie GOODWIN v. STATE of Louisiana.
    No. 2013-KH-0297.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Goodwin, Leslie;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 375482; to the Court of Appeal, First Circuit, No. 2012 KW 1692.

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. Dale Robin MILLER v. STATE of Louisiana.
    No. 2013-KH-0329.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Miller, Dale Robin;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 92141; to the Court of Appeal, Third Circuit, No. KH 12-01371.

Denied.


text:
    STATE ex rel. CUMMINGS v. State of Louisiana.
    No. 2013-KH-0559.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Cummings, Clydell;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 272,421; to the Court of Appeal, Second Circuit, No. 48,-096-KH.

Denied.

JOHNSON, C.J., and HUGHES, J., would grant.


text:
    STATE ex rel. Troy BARBOUR v. STATE of Louisiana.
    No. 2013-KH-0568.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Barbour, Troy;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 465-662; to the Court of Appeal, Fourth Circuit, No. 2012-K-1625.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Jesse BROWN v. STATE of Louisiana.
    No. 2013-KH-0569.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Brown, Jesse;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 464,852; to the Court of Appeal, First Circuit, No. 2012 KW 1986.

Denied.


text:
    STATE ex rel. Bryant Lakeith BETHLEY v. STATE of Louisiana.
    No. 2013-KH-0570.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Bethley, Bryant Lakeith;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. A, No. 10-0787; to the Court of Appeal, Third Circuit, No. 12-844.

Denied.


text:
    STATE ex rel. Lee Roy WARREN v. STATE of Louisiana.
    No. 2013-KH-0571.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Warren, Lee Roy;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 02-F-0432; to the Court of Appeal, Second Circuit, No. 48,-094-KH.

Denied.


text:
    STATE ex rel. Jorge RODRIQUEZ v. STATE of Louisiana.
    No. 2013-KH-0603.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Rodriquez, Jorge;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 287-297; to the Court of Appeal, Fourth Circuit, No. 2013-K-0188.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Bruce HAYES v. STATE of Louisiana.
    No. 2013-KH-0633.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   In re Hayes, Bruce;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 483-109; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0357.

Denied.