author: VAN NORTWICK, J.

text:
    Brian Keith CROWLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1363.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Brian Keith Crowley appeals an order revoking his probation raising two arguments. First, he argues that, because the court erred in finding that he only completed 23 hours of community service, when he had in fact completed 25 hours of community service, the trial court’s revocation of probation should be reversed. We reject this contention. Crowley’s second argument urges this court to reverse the trial court’s revocation because the trial court erred in not making a finding as to his ability to pay. We agree and therefore remand for further proceedings.

On October, 28, 2011, Crowley entered a plea of nolo contendré in the circuit court of Escambia County for one count of Dealing in Stolen Property. He was placed on probation for a term of 12 months. As part of his probation, Crowley was ordered to perform 50 hours of community service and to pay $668.00 in court costs. The trial court later reduced his sentence to 25 hours of community service.

Thereafter, an affidavit of violation of probation was filed alleging three violations. During the subsequent hearing, the probation officer testified that, as of September 2012, Crowley had yet to complete any community service hours even though his term of probation was set to end on October 27, 2012. However, two days before the probation termination date, Crowley submitted his community service timesheet to the probation office. The probation officer testified that, after making phone calls to the place where Crowley claimed to have worked, she was unable to verify that he in fact had performed the required community service hours.

Crowley testified that he had not been employed since he was placed on probation and lived with his mother who provided him with “a little bit of [gas] money every now and then.” He further testified that he received food stamps, did not pay for a cell phone, and was not charged for rent or utilities. Crowley testified that he had “seven herniated discs, varicose veins disease, bad circulation in [his] legs and sugar diabetes” and that he had a pending social security disability claim.

The trial . court adjudicated Crowley guilty of violation of probation, orally finding that “he didn’t pay anything and he didn’t do his hours.” Thereafter, Crowley’s defense counsel raised the issue of his client’s inability to pay his cost of supervision, about which the court did not make a finding. On April 11, 2013, the trial court entered an order of revocation of probation, which found that Crowley had violated the following conditions:

I. (2) [Failure to Pay Cost of Supervision], 11.(9) [Failure to Follow Officer Instructions: Community Service Work], and 111.(8) [Failure to Complete Community Service Work] as cited in the Affidavit for Violation of Probation dated October 17, 2013[sic].

No argument is raised on appeal regarding the failure of Crowley to obey his probation officer. As the trial court did not orally revoke probation on this ground, it cannot serve as a basis for revocation. See McKinney v. State, 71 So.3d 952 (Fla. 1st DCA 2011). There is competent, substantial evidence that Crowley failed to complete his community service hours. The trial court obviously accepted as credible the testimony of Crowley’s probation officer that the claimed hours of community service could not be confirmed. Crowley was given a second opportunity to provide proof of completion of the hours, and yet he still failed to submit documentation or any other proof. Thus, revocation on this count is supported by competent substantial evidence.

Also, as noted, the trial court cited Crowley’s failure to pay court costs as one of the reasons it revoked probation. A trial court cannot revoke probation for failure to pay court costs without first explicitly finding that a defendant had the ability to pay and willfully refused to do. See Del Valle v. State, 80 So.3d 999 (Fla.2011); Odom v. State, 15 So.3d 672, 678-679 (Fla. 1st DCA 2009); Giambrone v. State, 109 So.3d 1279 (Fla. 1st DCA 2013). In the case before us, the trial court did not make an explicit finding that Crowley had the ability to pay, nor that he willfully refused pay.

This court is precluded “from inferring a finding of willfulness from the trial court’s determination that Appellant violated his probation.” Giambrone v. State, 109 So.3d 1279, 1280 (Fla. 1st DCA 2013), citing Del Valle, 80 So.3d 999. The record reflects that Crowley testified that he was unemployed, lived with his mother, received food stamps, and paid no rent or utilities. Crowley also testified that he had a pending application for social security benefits. There is no evidence affirmatively showing that Crowley had the means to pay the required court cost, or that he willfully refused to pay them.

If it is unclear from the record whether the trial court would have revoked probation absent a defendant’s ability and willful refusal to pay required costs, then the reviewing court should reverse the revocation order and remand the case for further proceedings. See Marzendorfer v. State, 16 So.3d 957, 958 (Fla. 1st DCA 2009). Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED.

PADOVANO, J., concurs.

BENTON, J., concurs in result only.

      . The referenced Affidavit for Violation of Probation is incorrectly cited as being dated "October 17, 2013.” The correct date is "October 17, 2012.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brian BROWN, Appellant, v. JERRY PYBUS ELECTRIC and North American Risk Services, Appellees.
    No. 1D13-1237.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.

      Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for Appellant.
    James N. McConnaughhay of McCon-naughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals the order of the Judge of Compensation Claims (JCC) denying the reauthorization of three doctors. For the following reasons, we reverse the rulings as to two of the doctors; we affirm the other ruling without further comment.

Regarding Dr. Rajni Patel and Dr. Douglas Stringer, the JCC ruled that the claims for reauthorization were barred by the “two-dismissal” rule:

A claim or petition may be dismissed by the claimant or petitioner without an order by filing, or announcing on the record, a voluntary dismissal at any time before the conclusion of the final hearing. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or petition for benefits previously the subject of a voluntary dismissal.

Fla. Admin. Code R. 60Q-6.116(2). The rule should be strictly construed in favor of the party whose action would be barred — and thus a voluntary dismissal must be by a “filing” or an “announcement] on the record.” Cf. Smith v. Sylvester, 82 So.3d 1159, 1161 (Fla. 1st DCA 2012) (holding that administrative rules must be interpreted according to their plain language whenever possible).

Here, the JCC found the two-dismissal rule barred the claim for reauthori-zation of Dr. Patel, based on the dismissal of five petitions for benefits (PFBs) filed (respectively) in June 2002, October 2004, January and June 2007, and April 2012, and barred the claim for reauthorization of Dr. Stringer, based on the dismissal of three PFBs filed (respectively) on July 11 and 22, 2002, and in January 2006. We conclude this was error, for the following reasons.

There is no dispute that the first two of the five PFBs on which the JCC relied in denying reauthorization of Dr. Patel, and all three of the PFBs on which the JCC relied in denying reauthorization of Dr. Stringer, were resolved administratively (by stipulation or at mediation). This fact does not answer the question, however; evidence or concession that PFBs were administratively resolved does not establish that claims therein were “voluntarily dismissed” as the term is used in the two-dismissal rule. We find error because the requirements of rule 60Q-6.116(2) are not fulfilled here; the record does not contain any filings that could constitute notices of voluntary dismissal of these claims, or announcements on the record that would indicate that the claims in those PFBs were dismissed (which announcements could perhaps be in the form of mediation agreements, or as part of the transcripts that are included in the record on appeal).

Interestingly, the record contains a 2008 order of the JCC titled “Order Closing File,” which states that “[a]ll pending [PFBs] in the above-captioned case are dismissed ... due to the issues/claims being resolved adjudicated, dismissed, or abandoned,” and that “[a]ny party may file a written objection within 30 days from the date of this Order.” Even if this order actually dismissed the PFBs at issue (save the 2012 PFB), such dismissal was not “voluntary” because it was not instigated by Claimant, and did not meet the requirements of rule 60Q-6.116(2) that it be by “filing, or announcing on the record, a voluntary dismissal.” Despite the E/C’s argument to the contrary, a claimant’s having to take action to keep the claims open (by filing a written objection) is not equivalent to a claimant’s taking action to voluntarily dismiss a PFB; in fact, to conclude such might have due process implications.

As to the remaining three PFBs on which the JCC denied reauthorization of Dr. Patel — the January and June 2007 and the April 2012 PFBs — although these were voluntarily dismissed it is not clear they request the same benefit requested now— reauthorization of Dr. Patel. See Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 873 (Fla. 1st DCA 1993) (holding factual findings are reviewed for competent substantial evidence). Specifically, they request psychotherapy pursuant to particular prescriptions — which may have been for separate time periods or a particular number of sessions — or based on a temporary change in residence (that is, during the short time Claimant lived in Jacksonville, he sought a local provider, and when he returned to Panama City he sought to return to Dr. Patel). We find error because it is not clear the JCC applied the right law, in that the burden to prove the prior PFBs were for the same claim was on the Employer/Carrier (E/C), not Claimant, and it is also not clear that such burden was met here. See Caron v. Systematic Air Servs. & State Farm Ins., 576 So.2d 372, 375 (Fla. 1st DCA 1991) (“The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.”) (quoting Albrecht v. State, 444 So.2d 8, 11-12 (Fla.1984), superseded by statute on other grounds as stated in Bowen v. Dep’t of Envtl. Regulation, 448 So.2d 566, 568-69 (Fla. 2d DCA 1984)). To be clear: the prior claims were not for reauthorization, or even authorization (not in Panama City), but were for particular treatment, and should the E/C believe otherwise, the burden is on the E/C to present evidence that, for example, the prior claims actually were for reauthorization of Dr. Patel, or were for the same psychotherapy sessions now at issue (which, in fact, does not appear to be the case: it does not appear any particular sessions are being requested via the instant PFB).

Because the JCC, by virtue of applying the two-dismissal rule, did not make findings regarding the other defenses the E/C asserted against the claims for reauthori-zation of Drs. Patel and Stringer, on remand the JCC is to consider those defenses.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings regarding reauthorization of Drs. Patel and Stringer.

LEWIS, C.J., WOLF and MAKAR, JJ., concur.


author: WOLF, J. MAKAR, J.,

text:
    Percy Edgardo TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3382.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.

      Bruce A. Rosenthal of Bruce A. Rosen-thal Law Offices, P. L., Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his conviction for first-degree sexual battery. He raises four issues. We affirm the first and third issues without comment. In the second issue, he argues counsel was ineffective. We find that issue would be more properly raised pursuant to a motion for postconviction relief and, thus, affirm. In the fourth issue, he argues the trial court committed fundamental error by sentencing him based on constitutionally impermissible factors. We agree that the trial court’s comments could reasonably be construed to suggest that the trial court based appellant’s sentence, at least in part, on religion. Therefore, we reverse and remand for re-sentencing before a different judge.

During the sentencing hearing, appellant’s father spoke on appellant’s behalf and stated, “Your Honor, I am here to tell you who is my son. And I’m telling you the truth because I am a Catholic and I believe in the Bible. As a father that I am, I could tell you that my son is innocent.”

Appellant then addressed the court and stated that he was innocent. He asserted that he had been dating the victim, although she was a troubled woman of poor character, and she set him up for the sexual battery charge. Then, the following exchange occurred:

THE COURT: You were married, weren’t you?
[APPELLANT]: Yeah. I was married, but my wife was in my country.
THE COURT: I know that. Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people — that’s not the way anybody with morals should do anything.
[APPELLANT]: We was going out like friends. Like go out.
THE COURT: [Appellant], you’re the one that said you had sex with her before this night.
[APPELLANT]: Yeah. Before this night. Yeah. We have sex.
THE COURT: But you’re married.
[APPELLANT]: Yeah. I was married.
THE COURT: That wasn’t right, was it?
[APPELLANT]: I know. Yes. It is my mistake.

(Emphasis added). At the end of the sentencing hearing, the trial court again commented on appellant’s claims that he had a consensual relationship with a woman other than his wife, stating:

If [the victim] is all what you say she is, you should have been miles and miles and miles away from her. You should never have invited her into your home. You should certainly never have gotten in a vehicle with her and gone barhopping. You should not have gone out on dates. You should not have been dancing together and by your own testimony you should not have had prior sexual encounters with her under any set of circumstances once you are married. But forget that two, she’s the kind of person that will turn on you and set you up and that’s what you told me. But yet you continue to have her, you know, be in your life even if it was her that called and said, “Let’s go out.” All you had to do was say no. The problem was, though, you didn’t.

(Emphasis added). The trial court then sentenced appellant to the statutory maximum of thirty years in prison.

“Although an appellate court generally may not review a sentence that is within statutory limits, an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence.” Santisteban v. State, 72 So.3d 187, 197 (Fla. 4th DCA 2011) (citing Nawaz v. State, 28 So.3d 122, 124 (Fla. 1st DCA 2010)). “Reliance on constitutionally impermissible factors,” including religion, “is a violation of a defendant’s due process rights.” Id. (citations omitted). “ ‘[S]imi-lar principles apply when a judge imper-missibly takes his own religious characteristics into account in sentencing.’ ” Id. (quoting United States v. Bakker, 925 F.2d 728, 740 (4th Cir.1991)). A sentence should be vacated where a trial judge’s comments “ ‘could reasonably be construed to suggest that the trial judge based [the] sentence, at least in part,’ ” on a constitutionally impermissible factor. Id. (quoting Nawaz, 28 So.3d at 125). See also Jackson v. State, 39 So.3d 427, 428 (Fla. 1st DCA 2010) (finding fundamental error where the trial court’s statement “can reasonably be read only as conditioning the sentence, at least in part, upon appellant’s claim of innocence”).

In Santisteban, a trial judge impermissi-bly based the length of a sentence on religious principles. 72 So.3d at 198. The Fourth District reasoned that because it could not say that the sentence would have been the same without reliance on that impermissible ground, the sentence should be vacated. Santisteban distinguished Singleton v. State, 783 So.2d 970, 979 (Fla.2001), in which the supreme court found that although biblical references should not be used, an “extraneous” biblical reference in a sentencing order comparing modern times to Sodom and Gomorrah was not reversible error because the order clearly stated the judge did not consider any aggravating factors other than the two set forth in the order.

Here, we find the trial judge’s comments can reasonably be construed to suggest that the trial judge based appellant’s sentence, at least in part, on religion. We note that appellant never stated he was Catholic. Instead, the trial judge apparently assumed appellant was Catholic because his father was. The court then specifically condemned appellant for his claim that he had a consensual dating relationship with the victim because it went against the judge’s own religious beliefs. The judge stated, “Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people — that’s not the way anybody with morals should do anything.” At the end of the sentencing hearing, the court again condemned appellant for having what he claimed was a consensual relationship with the victim because he was married, stating, “by your own testimony you should not have had prior sexual encounters with her under any set of circumstances once you are married.... even if it was her that called and said, ‘Let’s go out.’ All you had to do was say no. The problem was, though, you didn’t.”

It is unclear how appellant’s fidelity to his wife had any bearing on the charge of sexual battery. Further, the trial judge clearly explained that his condemnation of appellant’s behavior was based on the court’s own religious beliefs, which he assumed he shared with appellant. Thus, the judge’s comments were not merely an “extraneous” biblical reference, as in Singleton, 783 So.2d at 979.

Further, we cannot say that the sentence would have been the same without the court’s impermissible consideration of religion. The minimum guidelines sentence was 9 years and 4 months imprisonment. The State did not request a specific number of years, but instead asked the trial court not to downwardly depart. The trial judge then sentenced appellant to the statutory maximum of 30 years imprisonment. Unlike in Singleton, 783 So.2d at 979, here the judge did not specify on what factors he based the sentence.

No one should be punished, or conversely shown leniency, merely because he or she may be a member of a particular religion. Moreover, as we stated in Na-waz, “for justice to be done, it must also appear to be done.” 28 So.3d at 125. Because the court’s comments could reasonably be construed as basing the sentence, at least in part, on religion, and because we cannot say that .the sentence would have been the same without the court’s impermissible consideration of religion, we vacate appellant’s sentence and remand for resentencing before a different judge.

REVERSED AND REMANDED.

ROBERTS, J., concurs; MAKAR, J., concurs with opinion.

MAKAR, J.,

concurring with opinion.

When religious references, or appeals to religion, are made by participants in the sentencing phase of a criminal case, it places the trial judge in a difficult position; he can ignore, acknowledge, or nimbly skirt the matter. If he engages the subject, making a religiously-themed or religiously-based comment, it opens the door to criticism that the sentence ultimately imposed was due to an improper factor. Few academic articles discuss the topic, each reflecting differing views on what is appropriate or what violates constitutional norms. To similar effect are the relatively few court decisions outside of Florida.

The same appears true in Florida. Our supreme court has discussed the subject, but only briefly, creating no bright line rule. In a capital case, it was presented with a trial judge’s written sentencing recommendation that made a reference to “Sodom and Gomorrah.” Singleton v. State, 783 So.2d 970, 979 (Fla.2001). Because the jury had not been exposed to the reference, and because the judge’s order said he did not consider any aggravating factors other than those that were permissible, the supreme court held that the reference — if it was error — was harmless. Id. Similarly, it has applied harmless error analysis where prosecutors have made religious references in their closing arguments to juries. See Lawrence v. State, 691 So.2d 1068, 1074 (Fla.1997) (“Although we recognize that the prosecutor’s biblical reference in this case was not reversible error, we again caution prosecutors, as we did in [Bonifay v. State 680 So.2d 418 (Fla.1996) ], that arguments invoking religion can easily cross the boundary of proper argument and become prejudicial.”).

Thus, it appears that religious references by trial judges in the sentencing context — though potentially risky — are not per se impermissible; they become problematic, however, if they are used — or reasonably appear to be used — as the basis for the sentence itself. See, e.g., Nawaz, 28 So.3d at 125 (citing United States v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994), for proposition that “reference to national origin during sentencing ‘is permissible, so long as it does not become the basis for determining the sentence.’ ”) (citations omitted). The “Constitution, of course, does not require a person to surrender his or her religious beliefs upon the assumption of judicial office,” Bakker, 925 F.2d at 741; religious references are made with caution flags aloft.

The Fourth District has weighed in on the topic. In Scmtisteban the trial judge directly injected religion into his sentencing decision, making it clear his judgment was based on Jewish tradition. As the Fourth District noted, this “religious concept formed the very basis of calculating the sentence, not just a part.” 72 So.3d at 198. Here, it was the defendant’s father who first brought up the topic of religious faith, not the trial judge (the record is silent on the defendant’s religious views), distinguishing this case slightly from San-tisteban. The trial judge did not use religion doctrine as overtly as did the trial judge in Santisteban (nor as overtly as the trial judge used national origin in Nawaz). But it would appear to a reasonable observer that he relied, at least in part, on his disappointment in the defendant’s deviation from principles of Catholicism that would have counseled defendant to flee from the immoral conduct he pursued; this appearance matters. Nawaz, 28 So.3d at 125 (“for justice to be done, it must also appear to be done.”). Particularly so given the difference between the minimum sentence of nine years and four months and the thirty years imposed.

Because it is unclear that the defendant’s sentence would be the same without consideration of defendant’s deviation from religious norms, I concur that resentencing is appropriate. Id. at 125 (“Because it is unclear whether the trial court would have imposed the same sentence absent consideration of appellant’s national origin, we must vacate appellant’s sentence and remand for resentencing before a different judge.”); see also Santisteban, 72 So.3d at 198 (reversing because court could not “say that the sentence would be the same without reliance on the impermissible ground”).

      . See, e.g., Mark C. Modak-Truran, Reen-chanting the Law: The Religious Dimension of Judicial Decision Making, 53 Cath. U. L. Rev. 709 (2004) (discussing models of religionist/separationist decision-making in the context of judicial deliberations and explanations); Mark B. Greenlee, Faith On the Bench: The Role of Religious Belief in the Criminal Sentencing Decisions of Judges, 26 U. Dayton L. Rev. 1, 41 (2000). This latter article focuses solely on sentencing, but points out that "the closely related subject of arguments to juries about sentencing decisions” is discussed in two articles reflecting opposing views. Greenlee, supra, at 3 n. 7 (citing Brian C. Duffy, Bairing Foul Blows: An Argument for a Per Se Reversible-Error Rule for Prosecutors’ Use of Religious Arguments in the Sentencing Phase of Capital Cases, 50 Vand. L. Rev. 1335 (1997); Elizabeth A. Brooks, Thou Shalt Not Quote the Bible: Determining the Propriety of Attorney Use of Religious Philosophy and Themes in Oral Arguments, 33 Ga. L. Rev. 1113 (1999)).

      . Compare Greenlee, supra, note 1 (arguing that religious references, within certain boundaries, should be permissible), with Sanja Zgonjanin, Quoting the Bible: The Use of Religious References in Judicial Decision-Making, 9 N.Y. City L. Rev. 31, 35 (Winter 2005) ("the use of religious references in judicial decision-making should be prohibited.”).

      . See, e.g., Arnett v. Jackson 393 F.3d 681, 688 (6th Cir.2005) (trial judge’s mention of Matthew 18:5-6 did not violate defendant’s due process right because "the record does not demonstrate that the judge’s personally held religious beliefs formed "the basis of [her] sentencing decision,") (citation omitted); State v. Arnett, 88 Ohio St.3d 208, 724 N.E.2d 793, 803 (2000) (same case) (no violation of defendant’s due process right because "sentencing judge cited a religious text merely to acknowledge one of several reasons — 'one additional source’ — for assigning significant weight to a legitimate statutory sentencing factor.”); U.S. v. Bakker, 925 F.2d 728, 740-41 (4th Cir.1991) (trial judge's statement, that defendant "had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests” created “apprehension that the imposition of a lengthy prison term here may have reflected the fact that the court’s own sense of religious propriety had somehow been betrayed.”).

      . See also Bakker, 925 F.2d at 741 (“Courts, however, cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.”).


author: MARSTILLER, J.

text:
    Robert Randall RAMSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5791.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.

      Nancy A. Daniels, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan and Michael McDermott, Assistant Attorneys General, Tallahassee, for Appellee.
   MARSTILLER, J.

Robert Randall Ramsey (“Appellant”) pled no contest to attempt to commit theft of copper and conspiracy to commit theft of copper, see section 812.145(2), Florida Statutes (2011), after the trial court denied his motion to dismiss the charges. Appellant seeks reversal of the convictions for these crimes, arguing that the undisputed facts do not establish a prima facie violation of section 812.145(2). For the following reasons, we affirm the convictions.

As a preliminary matter, the record on appeal reflects that at Appellant’s plea hearing, the State stipulated the motion to dismiss was dispositive only as to the conspiracy charge. As to the attempt to commit theft charge, however, the State asserted the motion was not dispositive, and the trial court did not conclude otherwise. Appellant stated during his plea colloquy that he understood the State’s position. As the State correctly asserts, Appellant’s conviction for attempt to commit theft of copper is not subject to appellate review because his motion to dismiss was not dispositive as to that charge. See Holden v. State, 90 So.3d 902, 903 (Fla. 1st DCA 2012) (denying appellate review of conviction where defendant pled nolo contendere to attempted sexual battery, but where state did not stipulate, and trial court did not determine, defendant’s motion to suppress was dispositive); see also Holden 90 So.3d at 904 (‘Whether a ruling is disposi-tive is a question for the trial court, and not for us, in the first instance, because it is imperative that the defendant’s plea be voluntary and intelligent.”) (Benton, C.J., concurring in judgment).

Turning, then, to Appellant’s conviction for conspiracy to commit theft of copper, section 812.145(2), Florida Statutes (2011), reads:

A person who knowingly and intentionally takes copper or other nonferrous metals from a utility or communications services provider, thereby causing damage to the facilities of a utility or communications services provider, interrupting or interfering with utility service or communications services, or interfering with the ability of a utility or communications services provider to provide service, commits a felony of the first degree[.]

§ 812.145(2), Fla. Stat. (2011). To overcome Appellant’s motion to dismiss, the State had to present “sufficient facts that, when viewed in a light most favorable to the State, show that a reasonable jury could find in its favor.” Parks v. State, 96 So.3d 474, 476 (Fla. 1st DCA 2012); see State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3d DCA 2000) (stating that when considering a Rule 3.190(c)(4) motion, “the state is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant”). We review de novo the trial court’s denial of Appellant’s motion to dismiss. See O’Leary v. State, 109 So.3d 874, 876 (Fla. 1st DCA 2013).

The undisputed facts underlying Appellant’s charges are that he and another individual cut a hole in the locked fence surrounding an electric power substation, entered the grounds through the breach in the fence, and attempted to remove a spool of copper wire. The wire was located just inside the fence and was not connected to any equipment. Appellant and his co-defendant were apprehended before they could remove the wire from the property.

Appellant contends that, in order to establish a prima facie violation of section 812.145(2), the facts must demonstrate the taking of the copper — the act itself— caused damage to the facility. He asserts that moving the freestanding spool of copper wire caused no damage to the facility, and therefore, no violation of section 812.145(2) occurred. The State counters that the facts need only show damage to the facility occurred in the course of the taking. Because Appellant damaged the facility by cutting a hole in the perimeter fencing, and because the damage occurred in the course of, and to facilitate, the copper wire theft, the facts establish a violation of section 812.145(2).

As did the trial court, we agree with the State’s interpretation of section 812.145(2), and conclude that the facts set forth above show a prima facie violation of the statute. Appellant argues for application of the rule of lenity, asserting that the statutory language is ambiguous and permits both interpretations advanced by the parties. The rule of lenity is codified in section 775.021(1), Florida Statutes, and provides that “[t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (2011). We do not find the language of section 812.145(2) ambiguous and susceptible to Appellant’s interpretation. As he construes the statute, even if he had driven a bulldozer through the substation’s security fencing to gain access to the compound, that fact would not sustain a violation of section 812.145(2) because, in moving the spool of copper wire, he caused no damage. Finding such a result absurd, we reject Appellant’s assertion of ambiguity in the statute, and conclude the rule of lenity is not implicated here. See Hopkins v. State, 105 So.3d 470, 475 (Fla.2012) (finding rule of lenity inapplicable where statute was “unambiguous and not subject to differing reasonable constructions”).

Appellant’s convictions are AFFIRMED.

VAN NORTWICK and ROWE, JJ„ concur.

      . See Fla. R. Crim. P. 3.190(c)(4).

      . The State charged Appellant with two additional offenses, to which he also pled no contest: burglary of a structure and possession of burglary tools. The trial court sentenced Appellant to four concurrent terms of 18 months’ incarceration.

      .A defendant may appeal from a nolo conten-dere plea if he expressly reserves the right to appeal a prior dispositive trial court order. See Fla. R. App. P. 9.140(b)(2)(A)(i). This, Appellant did.


text:
    Jack Perry LOVELACE, Appellant, v. Brandi LOVELACE, Appellee.
    No. 1D13-723.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    Jack Perry Lovelace, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Notice of Appeal having been filed thirty-four days after rendition of the trial court’s order granting appellee’s motion to relocate with the parties’ minor children, we are compelled to dismiss this appeal as untimely. See Fla. R.App. P. 9.020(i) & 9.110(b). The law in Florida is well settled that a motion for rehearing or reconsideration does not toll the time for filing an appeal from a non-final order reviewable pursuant to the provisions of Florida Rule of Appellate Procedure 9.130. See Panama City Gen. P’ship v. Godfrey Panama City Inv., LLC, 109 So.3d 291, 292 (Fla. 1st DCA 2013) (recognizing “a motion for reconsideration of a nonfinal order does not toll the 30-day time limit for appeal”); SC. Read, Inc. v. Seminole Cnty. Sch. Bd., 932 So.2d 1255, 1256-57 (Fla. 5th DCA 2006) (holding a motion for rehearing from an appealable, non-final order “is not authorized” and “thus does not toll the time for filing an appeal”); Deal v. Deal, 783 So.2d 319, 321 (Fla. 5th DCA 2001) (concluding that a motion for rehearing directed to a non-final order determining child custody in a domestic relations matter and appeal-able pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), “is not authorized under the rules and does not toll the time for filing the notice of appeal”).

DISMISSED.

CLARK, ROWE, and SWANSON, JJ., concur.


text:
    Jennifer FLAIG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-426.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    Jennifer Flaig, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 27, 2012, judgment and sentence, in Bay County Circuit Court case number 11-000555CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Shana TISSIER, as Administrator Ad Litem of the Estate of Kathleen D. Comstock, Appellant, v. Raymond F. TISSIER and E*Trade Securities, LLC, Appellees.
    No. 1D13-1650.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    James R. Green of The Law Firm of James R. Green, P.A., Pensacola, for Appellant.
    Raymond F. Tissier, pro se, Appellee. No appearance for E*TRADE Securities, LLC, Appellee.
   PER CURIAM.

This is an appeal from a non-final order denying Appellant ⅛ motion for relief from judgment. See Fla. R. App. P. 9.130(a)(5). The lawsuit giving rise to the instant controversy was dismissed pursuant to a joint stipulation for voluntary dismissal with prejudice. After the plaintiff died, Appellant, the plaintiffs granddaughter, filed a Motion to Appoint Administrator ad Litem and Reinstate Lawsuit alleging that Appel-lee, the defendant (and plaintiffs son), had obtained the stipulation for dismissal from the ill and vulnerable plaintiff by coercion and duress. Attached to the motion was an affidavit from the plaintiffs former attorney attesting to the supporting facts. The trial court denied the motion, reasoning that, “this case was dismissed by Joint Stipulation for Dismissal with Prejudice ... and cannot now be reinstated.” (Emphasis in original.) This was error.

Although Appellant did not cite to Florida Rule of Civil Procedure 1.540(b) in her motion, the relief she sought — relief from a voluntary dismissal with prejudice — is available under the rule. See Pino v. Bank of New York, 121 So.3d 23, 35 (Fla.2013) (“Florida’s case law is replete with examples that almost exclusively show plaintiffs invoking rule 1.540(b) to seek relief and set aside voluntary dismissals inadvertently taken with prejudice.”); see also Navarro v. Castro, 110 So.3d 499, 501 (Fla. 4th DCA 2013) (holding trial court had jurisdiction to consider motion filed under rule 1.540(b) seeking relief from voluntary dismissal with prejudice based on mistake); Diaz, Rem & Targ, LLP v. Bird Wingate, LLC II, 66 So.3d 974, 976 (Fla. 3d DCA 2011) (affirming order vacating voluntary dismissal with prejudice and converting it to dismissal without prejudice). Moreover, if sufficiently alleged in the motion and established at an evidentia-ry hearing, a court may grant relief on any of the grounds provided in rule 1.540(b). See Shampaine Indus., Inc. v. S. Broward Hosp. Dist., 411 So.2d 364, 368 (Fla. 4th DCA 1982); Fla. R. Civ. P. 1.540(b) (permitting relief based on, inter alia, fraud, misrepresentation, “or other misconduct of an adverse party”).

Accordingly, we reverse the order denying Appellant’s motion, and remand to the trial court to determine whether the motion is facially sufficient, and if so, to hold an evidentiary hearing. See Southern Bell Tel. & Tel. Co. v. Welden, 488 So.2d 487, 489 (Fla. 1st DCA 1986) (“[W]here the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”).

REVERSED and REMANDED with directions.

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


text:
    Carlos M. GONZALEZ, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D12-3888.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.

      Bernard F. Daley, Jr., of The Daley Law Firm, Tallahassee, for Appellant.
    Therese A. Savona, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

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. In a separate appeal, Appellant previously sought review of a final administrative order from DOH involving another administrative complaint filed against him and obtained reversal and remand for a new administrative hearing. See Gonzalez v. Dep't of Health, 120 So.3d 234 (Fla. 1st DCA 2013). Here, Appellant has raised the same two issues that were asserted in his previous appeal. First, Appellant asserts that the Board erred in failing to provide a formal hearing when disputed issues of material facts arose during an informal hearing. Second, Appellant argues that the Board deprived him of his due process rights when it considered matters during the hearing that were unrelated to the charges filed in the administrative complaint. We affirm both issues, but remand for the Board to reduce the $50,000 fine imposed to $32,500 based upon DOH’s concession that the $50,000 fine was beyond the statutory maximum.

Regarding the first issue, similar to his previous appeal, Appellant failed to preserve any argument on appeal by failing to request a formal hearing when it became apparent that material facts were in dispute at the informal hearing below. Gonzalez, 120 So.3d at 236-37.

Concerning the second issue, we do not accept DOH’s concession that the Board considered matters not alleged in the complaint and that, as a result, Appellant was denied due process. “A confession of error ... is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions by the state.” Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002) (internal citation omitted). Unlike the administrative complaint filed in Appellant’s previous appeal, Appellant, in addition to being charged with failing to keep legibly written chiropractic medical records, was also charged in the underlying administrative complaint with improperly delegating responsibilities to an unqualified person and exploitation of patients or clients for financial gain. Considering these additional charges, we find that the Board did not consider matters unrelated to the allegations in the complaint at the informal hearing.

We do, however, note that DOH, in addressing the due process issue, has brought to this court’s attention a separate error, and we accept its argument that the $50,000 fine imposed was incorrect as matter of law. On appeal, DOH concedes that Appellant’s due process rights were violated. This was based, in part, on DOH asserting that the $50,000 fine imposed by the Board was outside the maximum aggregate amount for the statutory violations and that nothing in the record supported the increased fíne, implying that the increase was based on the Board considering matters outside the administrative complaint. The record on appeal, however, reveals that the $50,000 fíne was not erroneously imposed by the Board because it considered matters outside the administrative complaint; instead, the Board imposed the fíne after DOH, at the administrative hearing, advised the Board, with no objection raised by Appellant, that it could separately impose the maximum fíne under each of the statutory violations for each of the six patients whose treatment by Appellant formed the basis of the three counts in the administrative complaint. DOH’s counsel below advised the Board that it could impose a fíne of $8,500 to $27,500 for each patient, and requested that the Board only impose a total fíne of $50,000.

Rule 64B2-16.003 of the Florida Administrative Code, however, provides in pertinent part:

(1) When the Board finds that an applicant or licensee whom it regulates pursuant to Chapter 460, F.S., has violated the below-listed provision, it shall issue a final order imposing appropriate penalties, for each count, as set forth in Section 456.072(2), F.S., within ranges recommended in the following disciplinary guidelines.

(Emphasis added.) DOH, at the administrative hearing, incorrectly asserted that the maximum penalties that could be imposed were based upon each patient that formed the basis for the underlying complaint; Rule 64B2-16.003(1), however, clearly provides that the fine is based upon each count, and the underlying complaint did not allege separate counts for each of the six patients. Instead, only three counts were alleged in the underlying complaint. As DOH brought this error to this court’s attention on appeal and conceded that the maximum fine allowed was $32,500, we remand for the imposition of a $32,500 fine.

AFFIRMED, and REMANDED for further proceedings consistent with this opinion.

ROBERTS and CLARK, JJ., and MOSELEY, MARK W., Associate Judge, concur.


text:
    Tiderius T. WARREN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2927.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Tiderius T. Warren, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is granted. We VACATE the sentence only and REMAND with instructions to resentence the petitioner before a different judge. See Dumas v. State, — So.3d - (Fla. 1st DCA 2013) (citing Nawaz v. State, 28 So.3d 122 (Fla. 1st DCA 2010)).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Frank S. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3596.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Frank S. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the lower court’s August 21, 2013, judgment and sentence entered in Escambia County case numbers 11-5904B through 11-5906B; 11-6001B through 11-6006B; and 12-0170B through 12-0174B. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Anthony E. RAMOS, Appellant, v. FLORIDA OFFICE OF FINANCIAL REGULATION, Appellee.
    No. 1D13-3902.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Anthony E. Ramos, pro se, Appellant.
    Colin Roopnarine, General Counsel, and John Kim, Assistant General Counsel, Florida Office of Financial Regulation, Tallahassee; Douglas M. Holcomb, Assistant General Counsel, Florida Office of Financial Regulation, Orlando, for Appellee.
   PER CURIAM.

DISMISSED. Cf. Altee v. Duval County School Bd., 990 So.2d 1124 (Fla. 1st DCA 2008). Appellant’s request for costs is denied.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Raymond E. FAULK, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4284.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Raymond E. Faulk, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the January 3, 2013, order dismissing petitioner’s motion for post-conviction relief entered in Duval County Circuit Court case number 16-2008-CF-002449. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

WETHERELL, SWANSON, and OSTERHAUS, JJ„ concur.


text:
    Bernard Chalmer SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5377.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, Monique Rolla, Assistant Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This case involves the validity of a restitution order entered by the trial court after appellant Bernard Chalmer Sutton cut through the fence surrounding a private game preserve and shot and killed a relatively rare ten-point buck.

Sutton pled no contest to three counts, grand theft, trespassing, and injuring the fence. The trial court sentenced him to time served and probation and ordered him to pay restitution for both the fence ($1221.25) and the deer ($4000). Sutton stipulated to the award for the damaged fence; but he contested, and now appeals, having to pay restitution for the value of the deer. Sutton argues that the property owner does not have a property interest in the game on his property and has suffered no loss from his killing of the deer.

While generally a person does not have a property interest in a wild animal under the common law, there are exceptions in Florida law. For example, the legislature has made an exception for animals on private game preserves. Section 379.302(2), Florida Statutes, provides, in pertinent part:

All private game preserves or farms established under the provisions of this section shall be fenced in such manner that domestic game thereon may not escape and wild game on surrounding lands may not enter and shall be subject at any time to inspection by the Fish and Wildlife Conservation Commission, or its conservation officers. Such private preserve or farm shall be equipped and operated in such manner as to provide sufficient food and humane treatment for the game kept thereon. Game reared or produced on private game preserves and farms shall be considered domestic game and private property and may be sold or disposed of as such and shall be the subject of larceny.

§ 379.302(2), Fla. Stat. (emphasis added).

Courts in Florida likewise have recognized circumstances in which may acquire a property interest in wild animals. In State v. Lee, for example, the Florida Supreme Court focused on the relative liberty of animals:

The wild animals at large within the border of a sovereign State are owned by the State as distinguished from its proprietary capacity. These wild animals are not subject to private ownership so long as they remain wild and unconfined, but such animals become property when removed from their natural liberty and made the subject of man’s dominion. It will be observed that animals ferae naturae become property, and entitled to protection as such, when the owner has them in his actual possession, custody or control and usually this is accomplished by taming, domesticating or confining them.

41 So.2d 662, 663 (Fla.1949). See also Tomblin v. State, 616 So.2d 1209, 1211 n. 3 (Fla. 2d DCA 1993) (recognizing that while generally deer are considered wild animals, those raised on “deer ranches” may qualify as domesticated animals).

This case involves the killing of a ten-point buck on a licensed, private game reserve. The property was enclosed by an eight-foot fence and the owner supplied the animals with thousands of pounds of deer chow each year. Sutton only accessed the property by destroying a section of the fence, or these reasons, we find no error in the trial court’s decision to order restitution for Sutton’s killing of the deer on the grounds of the private game reserve.

The State concedes, however, that the value of the restitution ordered by the trial court was based on improper hearsay evidence and that we should remand for a new restitution hearing to establish' the value of the poached deer.

Accordingly, we REVERSE the restitution insofar as it orders appellant to pay $4000 as restitution for the deer and REMAND for a new hearing to determine the amount of restitution to be paid for the deer. In all other respects the restitution order is AFFIRMED.

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


author: WEIMER, J.

text:
    Linda DAY, Aimee Gaudet, David Shackelford, Henry Schexnayder, III, Had Properties, L.L.C. and Skr Construction, L.L.C. v. NORTHROP GRUMMAN SHIP SYSTEMS, INC., Bethlehem Steel Corporation, Cos-Mar Company, Gatx Terminals Corporation, Trinity Industries, Inc., Port Allen Marine Service, Inc., Cenac Towing Co., L.L.C., Basf Corporation, Browning-Ferris Industries Chemical Services, Inc., Brown & Root, Inc., Novartis Corporation, Lethyl Corporation, ExxonMobil Oil Corporation, Swepi, LP, Shell Offshore, Inc., Shell Oil Company, Southern Scrap Material Co., L.L.C., G & H Management Company, SBP Exploration and Production Inc., Kaiser Aluminum and Chemical Corporation, L.L.C., Dutchtown Oil Reclamation Site Participation Agreement, Dutchtown Oil Reclamation Site Committee, Ascension Holding, L.L.C., Dutchtown Oil Treatment Site Participating Group, James Glorioso, Inc.
    No. 2013-CC-0952.
    Supreme Court of Louisiana.
    Sept. 13, 2013.
   WEIMER, J.

Ill would grant and docket this matter to address the constitutional issue of whether a writ of certiorari can be denied by a vote of only three justices. See, La. Const, art. V, § 3.


text:
    In re Jose W. VEGA.
    No. 2013-B-1456.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Jose W. Vega, an attorney licensed to practice law in the States of Louisiana, Texas, and New York, based upon discipline imposed in two separate proceedings in Texas.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In March 2007, Eyennidth Castillo-Ramirez retained respondent to file an application for writ of habeas corpus. During the next two years, the client made inquiries about the status of the application, but respondent failed to respond to these inquiries and did not file the writ of habeas corpus. In December 2009, respondent’s client terminated the representation and requested that respondent cease work in the matter. Respondent failed to withdraw, however, and filed the application tor writ of habeas corpus with the Texas ^ourt of Criminal Appeals in February 2010. On May 5, 2011, respondent com sented to be publicly reprimanded for his misconduct in the Castillo-Ramirez matter' He also a£reed to Pa^ $3’000 ⅛ ^restitution to his client, plus $500 in attorney’s fees and costs to the State Bar of Texas.

Additional disciplinary proceedings were instituted against respondent arising out of his representation of Araceli Rodriguez. In that matter, respondent was retained in August 2009 to handle an immigration matter. The client paid respondent $3,250 in attorney’s fees and $2,010 for filing fees. Thereafter, respondent failed to maintain communication with his client and failed to respond to requests for information concerning the status of the immigration proceeding. The client subsequently made several requests to respondent for the return of the file and the refund of any unearned fees; however, respondent failed to comply with these requests. On October 31, 2012, respondent consented to be publicly reprimanded for his misconduct in the Rodriguez matter. He also agreed to pay $2,500 in restitution to his client, plus $500.34 in attorney’s fees and costs to the State Bar of Texas.

After receiving notice of the Texas orders of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Certified copies of the decisions and orders of the Texas court were attached to the motion. On June 25, 2013, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

jaPiscussiON

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

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

In the instant case, respondent has made no showing of infirmities in the Texas proceeding, nor do we discern any from our review of the record. Furthermore, we find no reason to deviate from the sanction imposed in Texas. Although we are not required to impose the same sanction as that imposed by Texas, nevertheless, only under extraordinary circumstances should there be a significant vari-ánee from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461. See also In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own |4sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”).

Here, there is little doubt that respondent’s conduct would warrant discipline in Louisiana, given that he neglected the legal matters of two clients and failed to communicate with his clients. Under these circumstances, we agree that a public reprimand is warranted. '

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

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that respondent, Jose W. Vega, Louisiana Bar Roll number 22216, be publicly reprimanded.

      . Respondent was admitted to the practice of law in Louisiana in 1993, but he has been ineligible to practice since June 1, 2012 for failure to comply with the mandatory continuing legal education requirements. Respondent is also ineligible for failure to pay his bar dues and the disciplinary assessment and for failure to file a trust account disclosure form.

      . Respondent did refund the $2,010 filing fee paid by his client.

      .As previously noted, respondent is also licensed to practice law in New York. On May 2, 2013, the New York Supreme Court, Appellate Division, Third Judicial Department, imposed reciprocal discipline upon respondent in the form of a public censure based upon the discipline imposed in Texas.


text:
    In re Rodney BRIGNAC.
    No. 2013-B-1535.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| Respondent was arrested and charged with driving under the influence of alcohol. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Rodney A. Brignac, Louisiana Bar Roll number 1730, be suspended from the practice of law for a period of one year and one day.

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


text:
    In re Craig Hunter KING.
    No. 2013-OB-1310.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   ON APPLICATION FOR READMISSION

PER CURIAM.

| TThis proceeding arises out of an application for readmission filed by petitioner, Craig Hunter King, a disbarred attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Petitioner was convicted of a felony criminal offense in 2007 and was subsequently charged with professional misconduct stemming from the conviction. Petitioner was placed on interim suspension on June 26, 2007. On January 8, 2010, this court rendered an order disbarring petitioner retroactive to the date of his interim suspension. In re: King, 09-1560 (La.1/8/10), 33 So.3d 873.

In December 2012, petitioner filed an application for readmission with the disciplinary board, alleging he has complied with the readmission criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) took no position regarding the application for readmission. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended that petitioner be readmitted to the practice of law. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

After considering the record in its entirety, we agree with the committee that there is clear and convincing evidence of petitioner’s compliance with the readmission criteria. Nevertheless, we find further precautions are warranted to | Jnsure that the public will be protected upon petitioner’s return to practice. See Supreme Court Rule XIX, § 24(J). Accordingly, we will order that petitioner be conditionally readmitted to the practice of law, subject to a one-year period of probation governed by the following conditions:

1. During the probationary period, petitioner shall attend and successfully complete the Louisiana State Bar Association’s Ethics School program.
2. Petitioner shall request that the ODC appoint a practice monitor to supervise his professional activities during the probationary period, including his compliance with trust account rules, accounting procedures, and office management procedures. Petitioner shall comply with all reasonable requests of his practice monitor.
3. Petitioner shall cooperate with the ODC, and shall comply with any and all requirements imposed upon him by the ODC.

Should petitioner fail to comply with these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately, or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Craig Hunter King, Louisiana Bar Roll number 19945, be immediately readmitted to the practice of law in Louisiana, subject to the conditions set forth herein. All costs of these proceedings are assessed against petitioner.

VICTORY, J., concurs.

GUIDRY and CLARK, JJ., dissents and would deny readmission.


text:
    In re Bobby HICKMAN
    No. 2013-C-1381.
    Supreme Court of Louisiana.
    Oct. 4, 2013.
    Rehearing Denied Nov. 8, 2013
   PER CURIAM.

| ¶Writ granted. The judgment of the trial court is reinstated. We take judicial notice of the employee’s federal conviction and incarceration. Thus, any alleged failure to follow the procedural requirements of La. R.S. 40:2531 et seq. and the corresponding nullification of the termination is rendered moot by the impossibility of reinstatement. See La. R.S. 33:2560(8).


author: DREW, J.

text:
    Elizabeth EKENDAHL, Individually and as Natural Tutrix of her Minor Children, Thomas Zachary Ekendahl and Emma Ekendahl, Plaintiff-Appellant v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al, Defendant-Appellee.
    No. 48,374-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 2013.

      Troy E. Bain, Shreveport, LA, for Appellant.
    Dunahoe Law Firm, Natchitoches, LA, by Edwin Dunahoe, Pugh, Pugh & Pugh, L.L.P., Shreveport, LA, By: Robert G. Pugh, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

| We review here a judgment dismissing a medical malpractice action. The litigation was brought by Mrs. Elizabeth Ekendahl (“Elizabeth”), the widow of Mr. Carl Eken-dahl (“Carl”), on behalf of herself and her children. Defendants are Dr. Kevin Murphy and his insurer.

The suit focuses on Dr. Murphy’s medical treatment provided to Carl on January 25, 2005. As of that date, the physician had worked as a family practitioner for 15 years. He was and is board-certified in family practice.

Elizabeth urges that the defendant violated the appropriate standard of care by: (1) not ordering a culture in response to a negative finding of a Quidel Quick Vue InLine Strep A Test (“QST”) as directed by the manufacturer, and (2) administering a Celestone shot for symptomatic relief for a man who presented with a sore throat and whose two children has just been diagnosed with strep.

FACTUAL BACKGROUND

During the last decade of Carl’s life, Dr. Murphy treated him 17 times for minor medical problems, including previous bouts of viral pharyngitis (inflamed tissues lining the pharynx), and other respiratory problems, often occurring during the winter months. Through the years, the doctor had occasionally administered Celestone shots to Carl, without incident. He had never treated Carl for strep.

On his last visit to Dr. Murphy, Carl complained of a sore throat over the previous 86-48 hours as well as a mild headache and chills. The | doctor's notes indicate that Carl reported that his children had been diagnosed with strep throat three to four days earlier.

Dr. Murphy performed a physical examination, finding:

• Carl’s eyes, ears, nose, sinuses, and lungs were normal;

• no nasal congestion and no postnasal drip were noted;

• Carl exhibited mild erythema (redness) in the tonsillar and posterior pharyngeal region, but without exudate (pus-like material);

• his temperature was normal, and no history of fever was reported;

• other vital signs were normal;

• no skin rashes were observed; and

• he had ulcerations in the posterior pharyngeal region and positive anterior cervical nodes.

Dr. Murphy ordered the QST. The test results were negative. Dr. Murphy further testified that:

• he did not order a culture, contrary to the manufacturer’s recommendation to do so when getting a negative reading from a QST;

• Celestone does suppress the immune system;

Is* had a culture been taken, it would have been sent to a lab in Alabama, resulting in a delay of two or three days in receiving the culture results;

• Carl’s tonsils had previously been removed, which is a factor militating against a diagnosis of strep; and

• an odor associated with strep, often noticed by clinicians, was not present.

The physician made a diagnosis of acute viral pharyngitis. Dr. Murphy administered 2 ccs of Celestone for symptomatic relief, prescribing rest and fluids, along with Tylenol or Advil. Carl was told to return if he had any problems or changes in his condition. After that office visit on Tuesday, January 25, 2005, Dr. Murphy had no more contact with Carl.

Elizabeth testified that her husband felt a little better the next day but for the rest of the week he was not “back to normal.” By Friday, January 28, Carl told her that he was not feeling well and that if he was not better by Monday he was going to contact an ENT.

Carl was a talented musician and attorney. On Saturday afternoon, January 29, he left Bossier City to fulfill a prior commitment to play music in DeRidder. After the engagement, he was too sick to make the drive home with his band. He spent the night in DeRidder, where Elizabeth picked him up the next day, Sunday, January 30. She drove him to Willis-Knighton Bossier, where he was admitted on an emergency basis. After 22 days of horrific suffering, he died on February 21, 2005. At his death, Carl was 41 Lyears of age. He was survived by Elizabeth and two young children.

Elizabeth filed a petition for a Medical Review Panel (“MRP”) on September 1, 2005.

The MRP found that Dr. Murphy met the applicable standard of care, and explained its reasons at length, concluding:

Dr. Murphy was adherent to a good standard of care and did what the competent average family physician would have done. It is unfortunate that Mr. Ekendahl succumbed to Strep bactere-mia but the evidence does not support that Dr. Murphy performed negligently or withheld proper care.
In summary, the panel is of the opinion that Dr. Kevin Murphy did not breach the standard of care in the. treatment of Mr. Carl Ekendahl.

On February 2, 2009, Elizabeth, individually and as tutrix of her two children, filed this lawsuit against Dr. Murphy and his insurer, Louisiana Medical Mutual Insurance Company.

Following a two-day trial on the merits in September 2012, the trial court ruled from the bench, finding that the defendant’s treatment was within the standard of care for treatment of a patient with Carl’s symptoms.

The trial court explicitly found that:

• there was no expert testimony that the failure to do a follow-up culture was below the standard of care;

• even the defense witnesses testified that there was no need to confirm the test with a culture; and

• injecting Carl with Celestone was not. a deviation below the standard of care required of a family practitioner.

In her personal and representative capacities, Elizabeth now appeals the trial court’s judgment on grounds that it is manifestly erroneous.

We affirm.

INEXPERT TESTIMONY

Elizabeth called three experts on her behalf:

1. Douglas Jenkins, M.D., was accepted as an expert in the field of internal medicine, including the equivalent standards of care for family physicians with respect to the treatment of strep and use of corticosteroids.

Dr. Jenkins testified that:

• the standard of care for the diagnosis and treatment of strep is the same for internal medicine practitioners as for family practitioners;

• Dr. Murphy’s January 25, 2005, treatment of Carl was below the standard of care applicable to family practitioners, as to the injection administered;

• it is improper to give an. oral or injecta-ble steroid to a patient who has a noncritical infection;

• he felt that Carl already had strep on January 25;

• he knew of no case where an injection of 2 ccs of Celestone caused the patient to end up with strep sepsis;

• the manufacturer’s warnings foretold what happened to Carl as a result of the Celestone shot: other infections came into existence, symptoms and infections were masked, the infections worsened, the body’s ability to localize the infection was compromised, and circumstances were created which led to a widespread infection;

• Celestone has no curative effect, though it can make someone “feel good”;

• an intramuscular injection of 2 ccs of Celestone is “quite a bit”;

• the rapid component of the injection stays in the body about three to five days; the longer-lasting component remains for seven to ten days, though exactitude with injections is difficult;

• the cortisone has a half-life of 30-50 hours, with progressive 16half-lives;

• the injection created an unreasonable risk of harm to Carl;

• under these facts, Dr. Murphy could have properly used his clinical judgment not to order a strep test, but he should have prescribed antibiotics, and he should not have ordered the injection;

• during his deposition, he had testified that Dr. Murphy did nothing during Carl’s visit that fell below the standard of care except for administrating the Celestone shot;

• use of a QST rather than a strep culture was within the standard of care; and

• his report reviewing Dr. Murphy’s care never stated that the use of a QST without a follow-up culture was below the standard of care.

When asked by the court whether it was a deviation beneath the standard of care to use steroids where there is a suberitieal viral infection, the doctor responded, “There is some clinical judgment there. I believe it is unnecessary. It does not pass the risk-benefit analysis; and therefore, I think that I would demonstrate a conclusion that it is below the standard of care.”

Dr. Jenkins also stated that any time a doctor gives a steroid injection or oral steroids for a suberitieal infection, or to relieve the symptoms of a suberitieal viral infection, it is a deviation beneath the standard of care.

2. Richard Kamm, M.D., who was accepted as an expert in the field of pathology, discussed in generic terms how a QST should be performed. He offered no opinion as to the standard of care for a family practitioner and |7never stated that the defendant improperly performed the test. He noted that the manufacturer of the QST reported a sensitivity of 92% and a specificity of 99%.

3. Raymond Coghlan, M.D., who was accepted as an expert in the field of internal medicine and infectious diseases, testified that:

• he was Carl’s treating physician at Willis-Knighton Bossier;

• he was not sure whether Carl had strep on Tuesday, January 25, 2005;

• children in the home having strep is a significant factor to consider;

• he personally relies upon strep cultures, as opposed to the QST;

• a culture is the gold standard for Strep A, with accuracy close to 100%;

• a physician who performs a QST, however, is within the standard of care;

• results from a strep culture usually take 24 to 48 hours;

• many primary care physicians use Cele-stone for various illnesses including suspected viral pharyngitis;

• the Infectious Disease Society of America (“IDSA”), the major and most authoritative organization for infectious disease physicians, issued guidelines in 2002 approving usage of the QST for adult patients;

• the IDSA guidelines also approve using or not using a culture for adults, if the QST is negative;

• had he been treating Carl, he may have cultured him;

• based on Dr. Murphy’s findings, he would not have placed Carl on antibiotics;

• exudate is normally associated with strep, and strep patients usually have elevated temperatures;

• ulcers are usually associated with viral diseases;

• strep is usually involved with children, not adults;

|s* after the negative result of the QST, he would have followed the manufacturer’s recommendation and performed a confirming culture;

• 2 ccs of Celestone was a “small” dose considering this patient’s size, and this dosage would not affect the immune system very much;

• even though Celestone’s effect on an immune system is transient, he still prefers not altering an immune system, since strep is so aggressive;

• he had never seen a patient develop strep sepsis from one Celestone shot;

• there is no causal relationship between this dosage and the strep sepsis;

• he analogized strep to a battle within the body, noting that a steroid (Celestone) temporarily holds up the immune system’s attack on the invading strep, which can give strep an advantage; and

• Dr. Murphy’s assessment that Carl had acute viral pharyngitis was within the standard of care.

Dr. Kevin Murphy, M.D., the defendant, was qualified and accepted as an expert in the field of family practice. His testimony has been outlined above.

Dr. Murphy called two experts to testify in court, and entered into a stipulation as to the testimony of another.

1. Thomas E. Kinstrey, M.D., a member of the MRP, was accepted as an expert in the field of family practice. He testified that:

• he had been a family practitioner for over 30 years;

• untreated strep can result in throat abscesses or rheumatic fever, though rheumatic fever is much more likely in children;

• he found the QST to be excellent, accurate, and reliable;

|n* it is much faster and less expensive than a strep culture;

• the national guidelines for primary care physicians recommend usage of the QST in adults, and do not require a culture upon a negative QST;

• he used Celestone shots for his patients for a multitude of problems and frequently used Cortisone for comfort and symptom relief in pharyngitis;

• “almost all” primary care practitioners use Celestone the same way, as well as for numerous purposes not specifically listed by the manufacturer;

• he had never seen or read that a single shot of Celestone would significantly affect someone’s immune system, requiring extended use of corticosteroids, lasting for weeks or months;

• the amount of symptomatic relief medicines offered in this case were innocuous;

• he does not perform a culture for adults in this situation;

• his office does not have an in-house lab;

• getting lab results back usually takes three to five days;

• the manufacturer’s instructions do not supply the standard of care;

• the standard of care is established by national organizations, including associations of the medical profession;

• he pays no attention to the manufacturer’s insert included with Celestone, considering it legalese and overly protective language;

• he acknowledged that the Centor scale recommends a throat culture and antibiotics for patients scoring two (15% risk of strep) or three |in(32% risk of strep) points, and Carl would have scored two points (tender anterior cervical adenopa-thy and no cough);

• he pointed out that more recent studies and learned treatises in 2004 and since do not recommend throat cultures at the primary care level; and

• Dr. Murphy’s actions exemplified the appropriate standard of care.

2. A stipulation was entered that W. Phillip Kinnebrew, M.D. (also a member of the MRP), would have testified, if called, in conformity with Dr. Kinstrey.

3. Adrian M. Casillas, M.D., who was accepted as an expert in the fields of internal medicine, asthma, clinical immunology, and allergy, testified that:

• the Celestone shot administered to Carl was within the standard of care expected of a family practitioner;

• the one shot did not lead to his strep sepsis;

• ordering either a QST or a culture is within the requisite standard of care;

• he has used both the QST and strep cultures;

• the two tests are comparable and within the same range of reliability;

• the QST at the hospital was positive for strep; the culture was negative;

• since 2001, the guidelines of the Centers for Disease Control, the American Academy of Family Physicians, and the American Society of Internal Medicine state that throat cultures are not recom-mendedJjjfor the routine primary evaluation of adults with pharyngitis or for confirmation of negative results on QST when the sensitivity of the QST exceeds 80%;

• the guidelines of the IDSA, the major and most authoritative organization for infectious disease physicians, state that either a QST or a strep culture is appropriate for adults, and makes optional the use of a culture for adults if the QST is negative;

• he could not find a' case where this small amount of Celestone weakened the immune system so much that a patient ended up with strep sepsis;

• the manufacturer’s warning about Cele-stone was a general statement that said nothing about duration or amount of corticosteroids administered;

• such warning statements are issued regarding all types of steroids, including over-the-counter topical steroids; and

• Dr. Murphy-was within the standard of care in (1) diagnosing Carl with viral pharyngitis, (2) using the QST, and (3) not following up with a culture.

ANALYSIS

I. ISSUE ONE: Failure to Culture

Elizabeth argues that the trial court was manifestly erroneous in reaching its conclusion that a culture was not required in this case.

Defendants respond that the trial court did not commit manifest error in concluding that Dr. Murphy did not violate the applicable standard of care by using a QST alone rather than following it up with a strep culture.

The QST package insert, provided by the manufacturer, recommends that a negative result be followed with a throat culture. A manufacturer’s warning is evidence, but not conclusive evidence, of a standard of care.

In Terrebonne v. Floyd, 99-0766 (La. App. 1st Cir.5/23/00), 767 So.2d12 758, the court explained that a manufacturer’s specific warning can be sufficient to establish a prima facie showing of negligence.

In Christiana v. Sudderth, 02-1080 (La. App. 5th Cir.2/25/03), 841 So.2d 911, the court stated that a “health-care provider’s deviation from a manufacturer’s warning may be negligence for which expert testimony is not required to establish the applicable standard of care, because such evidence may be sufficient to make a prima facie showing of negligence.”

Dr. Kamm testified that the- rate of sensitivity for the QST is 92%. Dr. Coghlan testified that the sensitivity of a strep culture is 90-95%. Dr. Casillas called the false negative incident rate of the QST and strep cultures “roughly comparable.”

Articles from peer-reviewed medical journals demonstrate that it is within the standard of care to use a QST rather than a throat culture. The articles also discuss the high levels of sensitivity and accuracy of the QSTs.

In its conclusion, the MRP discussed the Centor criteria for diagnosing whether pharyngitis is viral or bacterial strep. They found that if a patient has a score of 2-3, the physician can decide to either do a QST or a throat culture and prescribe antibiotics with a positive result. Dr. Murphy appropriately chose to do a QST and appropriately decided not to use antibiotics. The MRP further found no medical evidence that Carl had strep when evaluated by Dr. Murphy, or that Dr. Murphy ignored any compelling reason to use antibiotics.

| ^Elizabeth introduced an abstract of a 2005 article entitled “Triage Options for Strep Throat” from American Family Physician. The authors of the article, which was based upon a study involving an unspecified number of Canadians, recommended culturing children and adults with a Centor score of 2 or 3. No physician who testified at trial concurred with this approach.

Elizabeth’s argument that the standard of care should be set by the manufacturer of the QST and not by physicians is contrary to well-settled law.

II. ISSUE TWO: The Celestone Shot

Elizabeth’s second issue is that Dr. Murphy’s administration of Celestone to Carl violated the appropriate standard of care, as the physician ignored package insert warnings that the drug has the potential to mask infections, allow other infections to come into existence during its use, decrease resistance, and inhibit the body’s ability to localize an infection. Here, all these events took place.

We certainly understand that physicians cannot create a standard of |14care just because a particular drug is economically to their advantage and their patients “swear by it” and “ask for it.” That is not the situation here. The medical literature, the national associations, and the experts at trial delineated the applicable standard of care. We find that the Celestone injection was not a deviation below that standard of care.

Some of the trial court’s comments could lead to a conclusion that it had preconceived notions about the applicable standard of care, particularly when the court spoke of the testimony of Dr. Jenkins.

The evidence does not support Elizabeth’s argument that the injection ruined Carl’s immune system such that he developed strep sepsis. Apparently the trial court’s decision was guided, in large part, by the almost unanimous conclusions of the medical experts.

III. SUMMARY

Plaintiff called three experts.

• Dr. Kamm gave helpful information about the QST, but very little disposi-tive information about the merits of this case.

• Dr. Jenkins testified that failing to culture was not a deviation below the standard of care, but that giving the Celestone shot was a deviation below the standard of care.

• Dr. Coghlan testified that failing to culture was a deviation below the standard of care, but that giving the Cele-stone shot was not a deviation below the standard of care.

Defendant’s medical expert, Dr. Kin-strey, testified that Dr. Murphy’s 11fitreatment of Carl exemplified the appropriate standard of care.

Dr. Casillas was also called as a medical expert by Dr. Murphy. His testimony was that the administration of the Celestone shot was within the standard of care.

To reverse the trial court’s judgment would require our finding it to be manifestly erroneous, and this we cannot do, as the overwhelming weight of the evidence in this record supports the findings of the trial court.

DECREE

At the cost of plaintiff, the judgment of the trial court, dismissing this lawsuit with prejudice, is AFFIRMED.

      . Mr. and Mrs. Ekendahl are referenced herein as Carl and Elizabeth. This is for ease of understanding by the writer, the panel, and the readers of this opinion. It should in no way signify a lack of respect for the Ekendahl family.

      . Actually, Carl’s daughter had been diagnosed with strep on Saturday, January 22, 2005. His son was diagnosed with strep on Monday, January 24, the day before Eken-dahl’s last visit to Dr. Murphy. Each diagnosis was rendered by a pediatrician.

      .Fever and exudate are often associated with a diagnosis of strep. Ulcers more often relate to viral illness.

      . The doctor’s trial testimony differed somewhat from his deposition testimony, as to whether he suspected strep on this last visit, and whether the positive strep tests of Carl’s children influenced his treatment decision. He admitted seldom, if ever, ordering strep cultures.

      . Usage of the QST, without a confirming culture, has been endorsed by the Centers for Disease Control, the Infectious Disease Society of America, the American Family Practice Association, the Internal Medicine National Organization, the Medical Review Panel ("MRP”), as well as the testimony of Doctors Coghlan, Kinstrey, and Jenkins. It was stipulated that Dr. W. Phillip Kinnebrew, another member of the MRP, would have testified in conformity with Dr. Kinstrey.

      . In adults, pharyngitis is most commonly caused by a virus. In contrast, strep throat, which is caused by bacteria, is more common in children.

      . The death certificate provides this information as to cause of death: Multisystem organ failure, due to or as a consequence of toxic shock syndrome, due to or as a consequence of Streptococcal sepsis, due to or as a consequence of Streptococcal pharyngitis.

      . Curiously, he testified in his deposition that he gaye oral steroids fairly commonly. He testified that he never gave intramuscular injections of steroids.

      . In his deposition, Dr. Jenkins said that the rapid release of the Celestone would occur over a period of one to two days.

      . Dr. Jenkins testified that:
      • the QST is "a good test,” with a sensitivity of 87%, i.e., if 100 patients presented with strep, the QST would pick up 87 of them;
      • the QST has a specificity of over 90%, meaning that 95% or more of its positives are accurate;
      • he never uses the QST in his practice and very seldom cultures; but
      • if Dr. Murphy used a QST, he should have followed its instructions about using a culture.

      . Dr. Kinstrey testified that both the sensitivity and specificity of the QST are upwards of 90%, and he further testified that the QST “encroaches on the actual accuracy of the gold standard, or the throat culture.”

      . Dr. Kinstrey testified that the specificity of a QST is 93%, while the specificity of a throat culture 97%. He stated that “there's almost no place for a throat culture in primary care anymore.” He further noted that the hospital records indicate that a QST was run upon admission at the emergency room at Willis-Knighton Bossier, with a positive result. The culture yielded a negative result three days later.

      . Examples: Centers for Disease Control, the American Academy of Family Physicians, and the American College of Physicians Society of Internal Medicine.

      . The "Centor Scale” was created in 1981 by Dr. R.M. Centor, and it has been used in the medical profession for many years.

      . Particularly, a March 15, 2004, article in the American Family Physician, which is the national journal for family practitioners, flatly states: “Rapid Strep antigen tests are easy to perform and results are available within minutes. Because of improvements in the sensitivity of these tests, negative results no longer have to be confirmed by throat culture.”

      . Guidelines for numerous national medical organizations endorse this concept. The manufacturer of the QST, however, recommends a confirming culture upon a negative result.

      . The consensus in the industry is that the sensitivity of the QST was well over 80%.

      . These two cited opinions were rendered in the context of motions for summary judgment. Neither opinion held a trier of fact to be manifestly erroneous in relying on the testimony of medical experts as opposed to a manufacturer's statement.

      . Carl’s Centor score was a 2.

      . Elizabeth also relied on a Wikipedia article entitled "Centor criteria” as support for her argument that someone scoring a 2 or 3 on the scale (like Carl) required a culture rather than a QST. The authority cited is an article by Dr. R.M. Centor published in 1981. Dr. Casillas testified that he was not sure whether the QST was even available in 1981, and that the initial QSTs did not have the high level of sensitivity as did versions manufactured after 2000.

      . "Expert testimony is generally required to establish an applicable standard of care and whether or not that standard was breached, except where negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.” Roberts v. Marx, 47,658 (La.App. 2d Cir.1/16/13), 109 So.3d 462, writ denied, 2013-0649 (La.4/26/13), 112 So.3d 847. No physician testified that a manufacturer's recommendations can constitute a physician’s standard of care, and Dr. Kinstrey noted that such manufacturer statements are placed for legal reasons so as to not be sued if there is a false negative when a patient actually has the disease.

      . Dr. Jenkins testified that giving Celestone whenever an infection was present was below the standard of care. In its ruling, the trial court relied on its life experiences in stating, "I simply don’t believe that.” Nonetheless, the evidence in this record strongly preponderates that the trial court made the right decision.

      . Dr. Jenkins also testified at trial that Dr. Murphy should have administered antibiotics. This criticism was not found in his deposition.

      . By stipulation, it was agreed that had Dr. Kinnebrew testified, his testimony would have replicated Dr. Kinstrey. Both doctors served on the MRP.

      . Our findings on the merits herein obviate the need to focus on the damages here, which far exceed the medical malpractice "cap” of $500,000.00. Carl went through unimaginable pain, suffering, and anguish from January 30, 2005, the date of his hospital admission, until his death 22 days later. Medical expenses alone totaled $829,785.86. He suffered bilateral leg amputations above the knees, an open abdominal wall surgery, and ultimately, necrosis of his organs and internal systems. His brain was simply dissolving, and he mercifully passed away on February 21, 2005, after three agonal weeks. At death, Carl was an attorney earning in excess of $69,000 per year, plus other income as a musician. The testimony of Elizabeth and her children was heartbreaking.
      These three analogous cases support Elizabeth’s position that her claim far exceeds the medical malpractice cap: Raymond v. Government Employees Ins. Co., 2009-1327 (La.App. 3d Cir.6/2/10), 40 So.3d 1179, writ denied, 2010-1569 (La. 10/8/10), 46 So.3d 1268; Roberts v. Owens-Corning Fiberglas Corp., 2003-0248 (La.App. 1st Cir.4/2/04), 878 So.2d 631, writ denied, 2004-1834 (La. 12/17/04), 888 So.2d 863; and Wingfield v. State ex rel. Dept. of Transp. & Dev., 2001-2668 (La.App. 1st Cir. 11/8/02), 835 So.2d 785, writs denied, 2003-0313 (La.5/30/03), 845 So.2d 1059, 2003-0339 (La.5/30/03), 845 So.2d 1060, and 2003-0349 (La.5/30/03), 845 So.2d 1060.