author: BLACK, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. William Joseph KELLEY, Appellee/Cross-Appellant.
    No. 2D11-4403.
    District Court of Appeal of Florida, Second District.
    March 15, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee and Jonathan P. Hurley, Assistant Attorneys General, Tampa, for Appellant/Cross-Appellee.
    Kevin G. Humphries, Lakeland, for Ap-pellee/Cross-Appellant.
   BLACK, Judge.

William Joseph Kelley was charged with grand theft, money laundering, and exploitation of an elderly person. A jury acquitted Kelley of the first two charges but found him guilty of exploitation of an elderly person, his mother. The trial court entered judgment in accordance with the verdict and, finding that the need for restitution outweighed the need for incarceration, sentenced Kelley to probation.

The State appealed the judgment and sentence, arguing that the trial court reversibly erred in imposing a downward departure sentence. Kelley cross-appealed, arguing that the court erred in denying his motion for judgment of acquittal and arrest of judgment based on true inconsistent verdicts. We find Kelley’s cross-appeal well-taken and reverse his conviction on the exploitation charge. As a result, the State’s appeal is moot.

The nature of our holding is such that an exhaustive recitation of the facts is unnecessary. Kelley handled his widowed mother’s finances, and when there were insufficient funds in one of her bank accounts, she became suspicious. An investigation revealed a number of suspect transactions brought about by way of a durable power of attorney executed in favor of Kelley, which his mother denied giving to him. Kelley contended his mother voluntarily executed the power of attorney in his favor. In total, the victim alleged she had lost over $100,000 through Kelley’s use of the power of attorney. Kelley denied stealing the money and took the position that he lost it through poor investment decisions, principally the making of unsecured loans. He also denied any criminal intent. A review of the second amended information, under which the case proceeded to trial, reveals that the conduct underlying the theft charge is the identical conduct underlying the theft element of the exploitation charge. In each count, only one act of theft was charged; the State did not charge or identify individual events. At the conclusion of the evidence at trial, the jury found Kelley guilty of exploitation in an amount in excess of $20,000 but less than $100,000. He was found not guilty of theft and money laundering.

As he did in his motion for judgment of acquittal and arrest of judgment, Kelley argues on appeal that his conviction for exploitation of an elderly person must be reversed because the jury’s verdict is truly inconsistent. An inconsistent verdict claim presents a pure question of law which we review de novo. Brown v. State, 959 So.2d 218, 220 (Fla.2007).

“Inconsistent verdicts are ordinarily considered to arise from a jury’s exercise of its ‘inherent authority to acquit’ even if the facts support a conviction.” State v. Cappalo, 932 So.2d 331, 334 (Fla. 2d DCA 2006) (quoting State v. Connelly, 748 So.2d 248, 253 (Fla.1999)). And, as a general rule, Florida permits inconsistent verdicts. State v. Powell, 674 So.2d 731, 732-33 (Fla.1996). The sole exception to the general rule is inconsistent verdicts resolving legally interlocking charges. Cappalo, 932 So.2d at 334 (citing Connelly, 748 So.2d at 253). “‘This exception [is] referred to as the “true” inconsistent verdict exception....’” Id. (quoting Powell, 674 So.2d at 733). “True” inconsistent verdicts are “ ‘those in which an acquittal on one count negates a necessary element for conviction on another count.’ ” Id. (quoting Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983)); accord Everett v. State, 831 So.2d 738, 743 (Fla. 4th DCA 2002).

Here, the State contends that the charges against Kelley were not legally interlocking but factually interlocking and that therefore the inconsistent verdict was a permissible exercise of the jury’s pardon power. The State is mistaken. In both the grand theft count and the exploitation count, the State charged Kelley with obtaining or using funds of the elderly victim with the intent to temporarily or permanently deprive her of those funds. The State did not charge Kelley with multiple counts of theft or exploitation; rather, Kelley’s actions across multiple dates and involving multiple bank accounts were charged as one episode. And, as a result, the acquittal on the theft charge “negated the necessary element of theft in the exploitation count,” making the two legally interlocking. See Everett, 831 So.2d at 743; see also Rich v. State, 823 So.2d 208, 209 (Fla. 2d DCA 2002); Cappalo, 932 So.2d at 334. “Consequently, there could be no conviction on the exploitation charge, which was based on the underlying grand theft.” Everett, 831 So.2d at 743; see also Cappalo, 932 So.2d at 334 (“Because ‘the underlying felony [is] a part of the crime charged[,] without the underlying felony the charge [ean]not stand.’ ” (quoting Eaton v. State, 438 So.2d 822, 823 (Fla. 1983))); Louberti v. State, 895 So.2d 479, 480 (Fla. 4th DCA 2005) (reversing conviction for organized scheme to defraud where grand theft charges for which defendant was acquitted were same thefts which were elements of the organized scheme to defraud charge).

Accordingly, we reverse Kelley’s conviction for exploitation of an elderly person and order that his judgment and sentence be vacated.

Reversed and remanded.

CASANUEVA and KELLY, JJ„ Concur.

      . Obtaining or using property, including money, of the victim with the intent to temporarily or permanently deprive the victim of that property is an essential element of both theft, see § 812.014(1), Fla. Stat. (2011), and exploitation of an elderly person, see § 825.103(l)(a), Fla. Stat (2011).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carver ASKEW, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0586.
    District Court of Appeal of Florida, First District.
    March 18, 2013.
    Carver Askew, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice as to the appellant’s right to file a petition for a belated appeal. The appellant’s motion for extension of time to file an initial brief is denied as moot.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Timothy Jerome BANKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5404.
    District Court of Appeal of Florida, First District.
    March 18, 2013.

      Timothy Jerome Banks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the June 27, 2012, order denying defendant’s motion for postconviction relief in Wakulla County Circuit Court case number 08-100-CFA. 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).

PETITION GRANTED.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Kareem A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D11-3205, 1D11-956.
    District Court of Appeal of Florida, First District.
    March 18, 2013.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kareem Johnson, Appellant, challenges his convictions and sentences in two cases that we sua sponte consolidate for the purpose of this opinion. We affirm Appellant’s convictions without comment. However, we reverse Appellant’s habitual offender sentences imposed in both cases and remand for resentencing.

The habitual felony offender statute provides that a “(w]ritten notice (of intent to habitualize] shall be served on the defendant and the defendant’s attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant.” § 775.084(3)(a)2, Fla. Stat. (2010). In Ashley v. State, 614 So.2d 486, 490 (Fla.1993), the Florida Supreme Court held that “in order for a defendant to be habitualized following a guilty or nolo plea, the following must take place prior to acceptance of the plea: 1) The defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization.”

Here, the record reflects that the State did not file the notices of intent to habitu-alize in both cases until almost two months after Appellant pled to the charges. While the record discloses that the State verbally informed Appellant that it would seek sentencing as an habitual felony offender, that fact does not cure the failure to timely file a written notice. See Stanford v. State, 69 So.3d 1039, 1040 (Fla. 1st DCA 2011) (holding that the fact that the State verbally informed a defendant of its intent to habitualize does not cure the failure to timely file a written notice). By failing to give Appellant written notice of intent to habitualize prior to the trial court’s acceptance of his pleas, the State was not entitled to seek habitual offender status for Appellant. As such, the trial court erred in imposing habitual offender sentences. Accordingly, we reverse Appellant’s habitual offender sentences in both cases and remand the causes to the trial court for resentencing under the sentencing guidelines.

AFFIRMED in part, REVERSED in part, and REMANDED.

LEWIS, CLARK, and RAY, JJ., concur.


author: CASANUEVA, Judge.

text:
    Michael SCHULTZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5639.
    District Court of Appeal of Florida, Second District.
    March 20, 2013.
    Howard L. Dimmig, II, Public Defender, and Joshua Schoen, Special Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Michael Schultz appeals his judgments and sentences for burglary of an unoccupied dwelling and grand theft. We agree with Mr. Schultz that the trial court erred in denying his motion for judgment of acquittal as to both charges because the only evidence of his guilt was circumstantial and the evidence was not inconsistent with Mr. Schultz’s reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 188 (Fla.1989) (“A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.”). We therefore reverse.

Evidence Presented at Trial

The victim of both offenses, Meon Thomas, testified at trial that on January 20, 2009, she returned to her house sometime around 9 a.m. because she had forgotten her lunch. There was a strange white car parked in her driveway. Ms. Thomas pulled in behind the white car, got out of her car, and saw a black hand slam shut a door to her house. This door is located under the carport. She could not tell if the hand belonged to a man, a woman, or a child. Ms. Thomas also saw her microwave fall to the ground.

A man got out of the passenger seat of the white car and asked her to move her car, and he then got in the driver’s seat. Ms. Thomas ran to her neighbor’s house and called 911, and she saw the white car drive across her grass as it left the area. An officer responding to the burglary call saw the white car driving through a ditch as it was leaving the area, and the officer eventually stopped the car. The car was being driven by Mr. Schultz’s cousin, and it belonged to Mr. Schultz’s girlfriend.

Detective Jose Raya testified that after arriving at the victim’s residence, he decided to drive around surrounding neighborhoods. About three and a half blocks away from the burglary, he noticed Mr. Schultz in front of a residence talking on his cell phone. As soon as Mr. Schultz saw Detective Raya’s unmarked police car, he turned away from the car and concealed his face. The detective thought this was suspicious so he parked his car in a field and watched Mr. Schultz. Mr. Schultz walked up to a trailer, climbed the steps to the front door, and knocked on the door.

Realizing that Mr. Schultz did not live at the residence, Detective Raya drove from the field to the driveway of the residence and asked Mr. Schultz to talk to him in front of his car. Mr. Schultz was talking to Dawn Wiley, who had answered the door. Mr. Schultz claimed that Ms. Wiley was his girlfriend. Detective Raya asked Mr. Schultz to come to his car three times before Mr. Schultz complied. The detective testified that when Mr. Schultz turned away from Ms. Wiley, she made a motion with her hand, indicating that she did not know him. Ms. Wiley appeared frightened.

Mr. Schultz said that this was his girlfriend’s home and that he was just visiting his girlfriend. Based on Mr. Schultz’s physical condition, it was obvious that he had been running. Ms. Wiley told the detective that she was not Mr. Schultz’s girlfriend. Ms. Wiley testified that when Mr. Schultz knocked on the front door, he said that he was looking for a guy named Chris who did tattoos. She had never seen Mr. Schultz before that day.

Detective Raya testified that he was not sure what time he saw Mr. Schultz at Ms. Wiley’s residence, but it was before 11 a.m. Dawn Wiley also testified that she was not sure what time Mr. Schultz knocked on the front door and that it was somewhere around 10 or 11 a.m. Detective Raya testified that about an hour after Mr. Schultz was arrested, he received a call to go back to Ms. Wiley’s residence because she had found a jewelry box in her trash can. The trash can was next to the steps that led to Ms. Wiley’s front door, where Mr. Schultz had been standing. Detective Raya took the lid off the trash can, and the jewelry box was under a bag of trash. Although the area had been searched when Mr. Schultz was arrested, Detective Raya testified that he did not see anyone go through the trash can. Latent fingerprints were found inside the victim’s house, but none of the prints belonged to Mr. Schultz.

After being arrested, Mr. Schultz told police that he walked his daughter to school that morning and left his car at home. His cousin called him and told him that he and another man had borrowed the car. Mr. Schultz said he did not know what the two men did with the car. Mr. Schultz further stated that he knew Ms. Wiley from seeing her in a store and that he went to her house that morning to ask her for a light for his cigarette. Mr. Schultz denied knowing anything about the burglary or the jewelry box in the trash can.

At trial, Mr. Schultz testified that he walked his daughter to school, bought cigarettes from a Citgo, and then looked for an acquaintance named Chris who does tattoos. Mr. Schultz decided to knock on a trailer door to ask if anyone knew where Chris lived. However, Mr. Schultz saw Ms. Wiley open her door and asked if she knew Chris. He denied knocking on her door and denied that the detective had to ask him more than one time to walk to the police car.

Law on Circumstantial Evidence

“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Law, 559 So.2d at 188.

The circumstantial evidence must establish to a reasonable certainty ‘that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent -with, guilt. They must be inconsistent with innocence.’ ” Lindsey v. State, 14 So.3d 211, 215 (Fla.2009) (quoting Frank v. State, 121 Fla. 53, 163 So. 223, 223 (1935)). “While the state does not have to rebut every possible event variation that might be inferred from the evidence, it has to produce evidence that contradicts the defendant’s theory.” Graham v. State, 56 So.3d 97, 101 (Fla. 4th DCA 2011) (citing Haugabrook v. State, 827 So.2d 1065, 1068 (Fla. 2d DCA 2002)). We review the denial of Mr. Schultz’s motion for judgment of acquittal de novo, viewing the evidence in a light most favorable to the State. See Gizaw v. State, 71 So.3d 214, 217 (Fla. 2d DCA 2011).

The facts in the present case are similar to those in Bronson v. State, 926 So.2d 480, 481 (Fla. 2d DCA 2006), where the victims’ house was burglarized sometime before 9:30 a.m. and a neighbor told police that he saw an older model white pickup truck in front of the victims’ home between 8:30 and 9 a.m. that morning, when the victims were not home. Police issued a BOLO describing the pickup truck and later that same morning, an older model white pickup truck was stopped about a mile and a half to two miles away from the victims’ home. Id. at 482. The appellant’s father was the driver of the truck, and the appellant was the passenger. The tires on the truck had a distinctive tread that matched the tire tracks left at the victims’ house. The truck contained some of the victims’ property, but the neighbor could not identify either man as the person he had seen at the home.

This court noted that “the circumstantial evidence test protects against a conviction based on impermissibly stacked inferences” and that suspicion “does not satisfy the State’s burden of proving an accused’s guilt beyond a reasonable doubt.” Id. This court held that the trial court erred in denying the appellant’s motion for judgment of acquittal, reasoning that the strength of the suspicion in that case was based solely on the appellant’s proximity to the stolen property an hour or two later in a truck in which he was a passenger. Id. at 483. Similar to Mr. Schultz’s case, there was no evidence placing the appellant at or near the burglarized residence. Id.

This court also noted in Bronson that the inference regarding possession of recently stolen property would not apply because the appellant did not have exclusive possession of the property. Id. at 484. To be entitled to the presumption, “[t]he possession must be more than superficial; it must be conscious and substantial. And, most important, it must be both personal and exclusive.” Id. (citing Garcia v. State, 899 So.2d 447, 451 (Fla. 4th DCA 2005)).

Similarly in Garcia, 899 So.2d at 448, the victim left his house for about ten minutes and when he returned, he saw a red van parked on his lawn, backed up to the front door of his house. When the victim arrived, a woman in the driver’s seat of the van frantically began honking the horn and a Hispanic man with sideburns came out of the house and dove into the van’s front passenger side. The woman drove away and within ten minutes of receiving a BOLO concerning the van, a deputy stopped a van matching the BOLO description. There were four people inside the van, including the appellant, and the van contained the stolen property. None of the latent fingerprints inside the victim’s home matched the appellant, and the victim could not identify the person he saw running out of his house. Id. at 449.

The Fourth District held that there was no competent evidence that was inconsistent with the appellant’s theory of innocence, noting that “[mjere knowledge that an offense is being committed and mere presence at the scene of the crime are insufficient to establish participation in the offense.” Id. at 450. The court also noted that although the inference of guilt from the unexplained possession of the recently stolen property would support a conviction for burglary, such inference only applies when the appellant actually possessed the property. Id. at 451.

Mr. Schultz’s Motion for Judgment of Acquittal

We conclude that the State’s circumstantial evidence was not inconsistent with Mr. Schultz’s hypothesis of innocence, and therefore, the trial court erred in denying his motion for judgment of acquittal. Mr. Schultz’s hypothesis of innocence was that he was in the area because he was walking home from a Citgo store and decided to look for someone named Chris. Although there was conflicting testimony regarding his reasons for approaching Ms. Wiley’s residence, these conflicts are not inconsistent with Mr. Schultz’s hypothesis of innocence that he did not enter the victim’s house. There were no witnesses placing Mr. Schultz at the burglarized home, and none of the latent fingerprints found in the home belonged to him. Although Mr. Schultz was found three and a half blocks away from the burglarized house, neither Detective Raya nor Ms. Wiley was sure regarding what time he arrived at her house. The detective testified that it was before 11 a.m., and Ms. Wiley testified that it was somewhere around 10 or 11 a.m. Taking the evidence in a light most favorable to the State, if Mr. Schultz did arrive at 10 a.m., this would have been an hour after the burglary. His presence near the scene an hour later would not support his conviction. See Remor v. State, 991 So.2d 957, 960 (Fla. 4th DCA 2008) (“Presence near the scene of a burglary, without more, is not enough to support a burglary conviction.” (citing Garcia, 899 So.2d at 450)).

Further, the jewelry box found in the trash can does not support an inference of Mr. Schultz’s guilt. Although an inference of guilt can be made from possession of recently stolen property, Bronson, 926 So.2d at 484, there was no evidence that Mr. Schultz ever had possession of the property. Although Detective Raya was watching Mr. Schultz as he approached Ms. Wiley’s door, he never saw him place the jewelry box in the trash can, and no fingerprints were found on the box.

Conclusion

Accordingly, Mr. Schultz’s judgments and sentences for burglary of an unoccupied dwelling and grand theft are reversed and remanded for the trial court to discharge him.

VILLANTI and MORRIS, JJ., Concur.

      . It was later determined that the jewelry box belonged to the victim.


author: GROSS, J.

text:
    Reginald MASSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1750.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Following a jury trial, Reginald Massey was convicted of possession of cocaine and possession of a firearm by a convicted felon. We reverse because the defense was precluded from placing into evidence certain non-hearsay statements of the lead detective and the State’s main witness.

The charges in this case arose from a traffic stop. A detective with the Okeechobee County Sheriffs Office came across a car with two men stopped at a stop sign. The detective recognized Massey as the passenger, whom the detective described as having a “very panicked look in his eye.” The detective then proceeded to follow the car and keep it in sight, during which he eventually witnessed the driver of the car run a stop sign.

The detective conducted a traffic stop and arrested the driver for driving without a valid license. He then searched the car but found “nothing illegal.” Another detective searched Massey and found no illegal narcotics or weapons, just a “large sum of cash.” Massey was released from the scene.

Another officer then told the detective that he found a gun and drugs about 100 yards from the location of the traffic stop, near where the detective had first encountered the car. When the detective asked the driver what had been thrown from the car, the driver stated that it was a “gun or drugs probably, I don’t know.” The State was unable to identify Massey’s fingerprints on the gun.

At trial, the driver of the car testified that it was Massey who threw something out of the window and that he did not know of anything illegal in the car.

The driver’s jailhouse interview with the arresting detective is central to this appeal. After the arrest at the traffic stop, the driver remained in custody. Ten days after the arrest, the detective, who said he made no promises or threats, tape-recorded an interview with the driver. The detective did a majority of the talking during the interview, “going back over what [the driver] had told him.” To illustrate the one sidedness of the discussion, an excerpt is in the footnote below. After the interview, Massey was charged in this case and the driver was released from jail.

At trial, Massey sought to introduce the recorded jailhouse interview. Defense counsel argued that the jury should hear the “manner in which this statement was taken,” to support the defense theory that the driver was “basically going with whatever he [wa]s told or whatever w[ould] assist him in this case,” and that the driver was “following and saying what he ha[d] to say.” In support of this argument, defense counsel explained that the tape recording was not hearsay, since the defense was not seeking to admit it for the truth of the matters asserted in the statement, which placed the blame for the criminal conduct on Massey. The trial judge refused to allow the defense to offer the tape recording, reasoning that it was not impeachment, that the driver’s statements were not inconsistent with his testimony at trial, and that it was “wholesale admission of a hearsay statement.”

I

Massey first argues that the trial court erred in allowing testimony that a search of Massey at the scene of the stop uncovered “a large sum of cash.” At trial, defense counsel’s objection was that such evidence was “irrelevant and prejudicial.” In response, the trial judge informed counsel that there was case law holding such evidence to be admissible and that he thought he could put his hands on it if counsel wanted. Defense counsel told the judge not to “worry about it” and said he would withdraw his objection.

Because Massey was charged only with possession of cocaine, as opposed to sale or trafficking, his objection to the introduction of evidence of a “large sum of cash” discovered during the search of his person at the traffic stop was well taken. See Buitrago v. State, 950 So.2d 531, 532 (Fla. 4th DCA 2007); Ferguson v. State, 697 So.2d 979, 980-81 (Fla. 4th DCA 1997). However, defense counsel did not obtain a ruling from the trial court and ultimately withdrew his objection, so the issue was not preserved for appellate review. See Carratelli v. State, 832 So.2d 850, 856 (Fla. 4th DCA 2002) (noting that “[a] plethora of Florida cases support the notion that a party must obtain a ruling from the trial court in order to preserve an issue for appellate review”); Rios v. State, 920 So.2d 789, 790 (Fla. 5th DCA 2006).

II

We agree with Massey that it was error to exclude the tape recording of the jailhouse interview of the driver because, as offered by the defense, the recording was non-hearsay admissible to contradict the driver’s trial testimony by showing that the driver was a parrot repeating the testimony spoon-fed to him by the detective.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2010). The Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So.2d 906, 914-15 (Fla.2000). If an out-of-court statement “ ‘is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case.’ ” Jackson v. State, 25 So.3d 518, 530 (Fla.2009) (quoting Penalver v. State, 926 So.2d 1118, 1132 (Fla.2006)).

No aspect of the hearsay rule is as misunderstood as the second part of the definition of hearsay—that the out of court statement is “offered in evidence to prove the truth of the matter asserted”—which McCormick describes as a “complicated and confusing condition.” McCormick on Evidence § 246 (2d ed. 1972). To explain the rationale for this aspect of the hearsay definition, McCormick looks to the reasons that hearsay is inadmissible in evidence, namely

the want of the normal safeguards of oath, confrontation and cross-examination for the credibility of the out-of-court declarant. W, a witness, reports on the stand that D, a declarant, has stated that X was driving a stolen car 60 miles an hour at a given time and place. If the proponent is trying with this evidence to prove those facts about X’s conduct we are vitally interested in the credibility of D, his opportunity and capacity to observe, his powers of memory, the accuracy of his reporting, and his tendency to he or tell the truth. The want of oath, confrontation and opportunity to cross-examine D may greatly diminish the value of his testimony; the “hearsay dangers” are present. But the same evidence of D’s declaration may be offered for quite different purposes, as for example, to show that D at the time he spoke, was conscious, or was able to speak English, or as evidence of the utterance by D of defamatory statements in an action for slander brought by X. Where offered for these purposes, the evidence would still be evidence of an out-of-court statement by D, but its value would not at all hinge upon D’s credibility. Hence, when declarations are offered for these purposes, the want of safeguards for his credibility is of no consequence. We are interested only in the question, did D speak these words, and for that we have the testimony of W, on the stand, fully supported by all the safeguards.

Id. (footnotes omitted). Out-of-court statements may be offered for a multitude of purposes other than to prove the truth of the facts asserted in them. Florida has recognized these common types of non-hearsay utterances: (1) prior inconsistent statements, because they are “not offered to prove [their] truth, only to show the inconsistency for impeachment purposes,” K.P. v. State, 90 So.3d 890, 891 (Fla. 4th DCA 2012) (quoting Marshall v. State, 68 So.3d 374, 375 (Fla. 5th DCA 2011)) (internal quotations omitted); (2) statements offered to prove motive, Foster v. State, 778 So.2d 906, 915 (Fla.2000), Eugene v. State, 53 So.3d 1104, 1109 (Fla. 4th DCA 2011); (3) statements used to establish an element of a crime, S.D.T. v. State, 33 So.3d 779, 780 (Fla. 4th DCA 2010); (4) statements that describe and give significance to ambiguous acts, Stotler v. State, 834 So.2d 940, 944 (Fla. 4th DCA 2003); (5) statements that are “verbal acts,” such as the words of an oral contract or of slander, which have “independent legal significance” because “the law attaches duties and liabilities to their utterance,” A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996); and, (6) statements offered to show the state of mind of, or notice to, the listener, Dorsey v. Reddy, 931 So.2d 259, 267 (Fla. 5th DCA 2006); Alfaro v. State, 837 So.2d 429, 432 (Fla. 4th DCA 2002). See generally Charles W. Ehrhardt, Florida Evidence §§ 801.4, 801.6 (2012 ed.).

In this case, the defense’s proposed introduction of the tape recording was not hearsay because it was not offered to prove the truth of the matters contained in the driver’s jail house “statement” to the police; if taken as true, the taped statements established Massey’s guilt of the crimes charged. Rather, the detective’s statements were important because of how they were made; they supported the defense theory that the detective supplied the driver with the testimony the State wanted, so that, at trial, the driver would merely repeat this version of the facts. The detective could have authenticated the tape recording since he was present at its creation. Used in this manner, the tape contradicted the testimony of the driver, because it tended to show that the true facts were not “as testified to by the witness being impeached.” § 90.608(5), Fla. Stat. (2010).

Not finding the error in excluding the testimony to be harmless, we reverse and remand for a new trial.

DAMOORGIAN, J., and STONE, BARRY J., Senior Judge, concur.

      .
      Detective: Okay. Uh, now from where I was at I can look over and see him in the passenger side of your vehicle.... I can see him. He’s reaching — he's looking down, he’s looking over at me, he's looking down, he's looking over at me, we’re parallel to each other. You’re driving obviously and he’s looking over at me. And then is when were [sic] initially saw me, you come across the road and keep going. We turn — we meet like — you actually waited till I got down to the stop, then you turned beside. I go to turnaround [sic], that's when you come down and you ran the stop sign down here at 5th and 10th — or 4th and 10th, I’m sorry. You went back west on 10th. After I had got you stopped, you advised me you had no ... you had a ... Jamaican license you said. Uh, didn't have your license with you nor did you have your passport with you, you told me that. Uh, I verified through dispatch you had no ... U.S. license. Uh, I asked for consent to search the vehicle, you said no problem. You gave me verbal consent to search, is that correct?
      Driver: Yes sir.

      Detective: ... I asked you if he threw something out the window, you said, yes. Is that correct?
      Driver: I said he threw something but I don't know what it was.
      Detective: Right. When I asked you I said, do you know what it was? You said, I don’t know, but he did throw something out. I said, well, what did he throw? You said, I don't know, but it was wrapped in black shirt. Is that correct? Is that what you said?
      Driver: Yes.
      Detective: I'm sorry, I couldn’t hear you. Driver: Yes sir.
      Detective: Okay. Then I asked you where he threw it and you said over there and you kind of motioned in a general direction. I said, no, no, point to it. And you pointed over to a particular area, did you or did you not?
      Driver: Yes sir.
      Detective: You did?
      Driver: Yes.
      Detective: Okay. Uh, that is the area where I found the gun — a loaded nine millimeter and a, uh, 26.7 grams of crack cocaine. Uh, you advised me at the time that you did not see the gun, uh, or the dope. He had something in a black shirt and he threw something out, but you don't know what it was. Uh, I asked you what you thought it was and your response was what? ... Uh, according to you when asked why Massey, uh, let me just give an exact what you told me. Let me see. When I asked [the driver] what he thought Massey threw from the gun — threw from the car he stated, a gun and drugs probably. When I asked why he would say a gun and drugs, because at that point nothing had been mentioned about either one of them, uh, you stated that’s normally what gets thrown from a car when a cop stops you. Is that correct? Driver: Yes sir.

      . Section 90.802, Florida Statutes (2010) provides that, "[e]xcept as provided by statute, hearsay evidence is inadmissible.”


author: HANZMAN, MICHAEL J., Associate Judge.

text:
    CARRIAGE HILLS CONDOMINIUM, INC., Appellant, v. JBH ROOFING & CONSTRUCTORS, INC., a Florida corporation, Appellee.
    No. 4D11-2251.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Andrew J. Márchese and Wendy S. Leavitt of Marshall Dennehey Warner Coleman & Goggin, P.C., Fort Lauderdale, for appellant.
    Paul K. Silverberg and Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for appellee.
   HANZMAN, MICHAEL J., Associate Judge.

Appellant, Carriage Hills Condominium, Inc., (“Carriage Hills”), appeals the trial court’s entry of a summary final judgment in favor of Appellee, JBH Roofing and Construction, Inc., (“JBH”). Carriage Hills contends that the lower court erred by: (a) striking two affidavits filed in opposition to JBH’s motion on the basis that each directly contradicted deposition testimony of its corporate representative, and (b) entering summary final judgment based solely on that deposition testimony which, according to Carriage Hills, did not establish the absence of any genuine issue of material fact to be tried. We agree and reverse.

A. FACTS AND RELEVANT PROCEDURE

Despite being over pled, this case presents a garden-variety contract dispute. Carriage Hills, through its board of directors (“Board”), operates an “over 55” condominium community. In 2006 the Board retained JBH to repair roof damage resulting from Hurricane Wilma. The parties entered into what is referred to in the industry as a “full scope contingency contract,” which obligated JBH to perform only work approved by Carriage Hills’ public adjuster, and to accept payments approved by, and received from, Carriage Hills’ insurer.

In July 2007, shortly after its contract was terminated by the Board, JBH filed suit asserting claims for breach of contract, tortious interference, promissory es-toppels, and unjust enrichment. Count I (“Breach of Contract”) alleges no less than thirteen claimed breaches, including: (a) an alleged failure to pay for repairs approved by the carrier; (b) an alleged failure to diligently present claims for loss to the carrier; and (c) the retention of other roofing contractors to perform work that should have gone to JBH pursuant to the contract. In Count II (“Tortious Interference with Business Relationships”), JBH claims that Carriage Hills intentionally interfered with advantageous business relationships it enjoyed with Carriage Hills’ public adjuster and insurance carrier. Count III (“Promissory Estoppel”) alleges that JBH forewent other opportunities in detrimental reliance on Carriage Hills’ promise to retain it to perform roofing work, including work for damages caused by Hurricane Wilma. Finally, Count IV (“Unjust Enrichment”) alleges that Carriage Hills would be unjustly enriched if allowed to retain the benefits of repairs made by JBH without paying for them.

Carriage Hills answered and raised twelve affirmative defenses alleging, among other things, that (1) the contract was “executed without Board approval”; (2) that it had already paid JBH in full for all work performed; (3) that JBH failed to mitigate damages; and (4) that JBH faded to perform its repairs satisfactorily or with due diligence. Carriage Hills also filed counterclaims for breach of contract, breach of the covenant of good faith and fair dealing, and slander of title.

While both parties were quick out of the gate with aggressive pleadings, it was not until January 2010 that the first — and to date only — deposition was taken. It occurred when JBH noticed the “Corporate Representative of Carriage Hills Condo with the most knowledge of the allegations contained in the complaint.” The notice made no reference to any particular issued) to be addressed, or to Carriage Hills’ affirmative defenses and counterclaims. Carriage Hills tendered Ms. Diane Foley, who at that time was one of its board members. Ms. Foley, in her then capacity as President of the association, executed the JBH contract and was apparently the person with “the most knowledge” of the allegations in the complaint. Carriage Hills nevertheless maintains that its Board was divided on the issue of whether to terminate the JBH contract, and that Ms. Foley was in the minority.

After testifying that she was authorized to execute the contract, a point now conceded by Carriage Hills, Ms. Foley was repeatedly asked whether, in her “opinion,” contentions within the parties’ pleadings were accurate. When asked whether she “believed” JBH had breached the contract, she responded, “In my layman opinion, no.” Similarly, when directed to Carriage Hills’ contention that JBH failed to exercise due diligence in the performance of the contract, she acknowledged that while other board members were of that view, she did not “share with that opinion.” She testified that she was “not aware” of any unauthorized work performed, and that she “believed” that JBH completed all the tasks it was authorized to do up to the time of termination. She also did not believe JBH’s work was defective. On the question of whether JBH was owed money, Ms. Foley responded that “in my opinion, it is possible,” but she did “not know” whether JBH was in fact due additional funds.

Armed with Ms. Foley’s testimony, JBH filed its Motion for Summary Judgment. According to JBH there was no issue to be tried because Ms. Foley admitted: “(1) the existence of a contract; (2) general liability; (3) that damages [are] due to JBH; (4) a denial on their [Carriage Hills] own affirmative defenses ...; and (5) a general admission that their entire defense is a vendetta against a former board president and current representative [Ms. Foley].” The Motion did not specify whether it was seeking an adjudication on all — or only some — of the counts asserted in the complaint, or whether it also sought an adjudication on any of the counterclaims.

Carriage Hills responded with the affidavits of Ralph D’Alconzo, its former president, and Grace Barona, its treasurer. Mr. D’Alconzo testified that JBH performed “substandard work with respect to the roof systems” and “submitted duplicate charges.” He also testified that JBH “conducted unauthorized work, including work that was not paid for [by the carrier].” Ms. Barona similarly testified that due to JBH’s shoddy repair work, Carriage Hills was forced to retain other roofing contractors to fix “water leaks and problems encountered with the roof system,” and that JBH improperly invoiced Carriage Hills for work that had not been approved by the insurance carrier. She also testified that JBH was paid all of the funds approved by — and received from— the insurer.

Finding that Ms. Foley, as its corporate representative, was “Carriage Hills,” and that her testimony was therefore disposi-tive, the trial court struck the D’Alconzo and Barona affidavits, invoking the principle that “[i]n situations where the non-movant in a motion for summary judgment submits an affidavit which directly contradicts an earlier deposition ..., courts may disregard the later affidavit.” Hyde v. Stanley Tools, 107 F.Supp.2d 992, 993 (E.D.La.2000). The trial court then granted JBH’s Motion for Summary Judgment based on Ms. Foley’s testimony. Carriage Hills timely appealed. Our review is de novo. See Carnes v. Fender, 936 So.2d 11, 13 (Fla. 4th DCA 2006).

B. RULE 1.310(b)(6) AND THE BINDING EFFECT OF A CORPORATE REPRESENTATIVE’S TESTIMONY

To place matters in a proper context we begin our review by summarizing how Florida Rule of Civil Procedure 1.310(b)(6) — which governs corporate representative depositions — is supposed to operate, an exercise which illustrates that the present dispute resulted in large part due to both parties’ failure to follow its procedures.

As we have previously pointed out, the substance of Rule 1.310(b)(6) was borrowed from a 1970 amendment to its federal counterpart, Federal Rule of Civil Procedure 30(b)(6). See Plantation-Simon Inc. v. Bahloul, 596 So.2d 1159, 1160 (Fla. 4th DCA 1992). Designed in part to streamline litigation, Rule 30(b)(6) imposes burdens upon both parties. The party seeking discovery is required to describe, with reasonable particularity, the matter(s) for examination. The responding entity must then produce one or more witnesses who can testify as to the corporation’s knowledge of the specified topics. Great Am. Ins. Co. of New York v. Vegas Constr. Co., 251 F.R.D. 534, 538 (D.Nev.2008). This “enables [the] deposing party to gather information from [the] corporation by way of a human being named by that corporation to serve as the corporation’s voice.” Bracco Diagnostics Inc. v. Amersham Health Inc., No. 03-6025, 2005 WL 6714281, at *1 (D.N.J. Nov. 7, 2005).

Moreover, the person(s) designated to testify represents the collective knowledge of the corporation, not of the individual deponents. As the corporation’s “voice” the witness does “not simply testify [ ] about matters within his or her personal knowledge, but rather is ‘speaking for the corporation.’ ” Rainey v. Amer. Forest & Paper Ass'n, 26 F.Supp.2d 82, 94 (D.D.C.1998) (citing U.S. v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.1996)). Put simply, the corporation appears vicariously through its designees. Taylor, 166 F.R.D. at 361.

As the “voice” of the entity, the witness is required to “testify about matters known or reasonably available to the organization.” Fla. R. Civ. P. 1.310(b)(6). “The [organization] must prepare the des-ignee to the extent matters are reasonably available, whether from documents, past employees, or other sources.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir.2006) (citation omitted). That preparation must enable the designee to “give complete, knowledgeable, and binding answers on behalf of the corporation.” Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C.1989). If the deponent cannot answer questions regarding the designated subject matter, “the corporation has failed to comply with its [Rule 1.310(b)(6) ] obligation and may be subject to sanctions.... ” King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475, 476 (S.D.Fla.1995).

Rule 1.310(b)(6) does not require— or for that matter even contemplate — that the corporation produce the witness with the “most knowledge” on the specified topic(s), and the witness is not required to possess any personal knowledge at all. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146 (10th Cir.2007); Federal Civil Rules Handbook, 2012 Ed. at p. 838 (“[T]he individual will often testify to matters outside the individual’s personal knowledge.”); see also PPM Fin., Inc. v. Norandal USA, Inc., 392 F.Sd 889, 894-95 (7th Cir.2004) (a Rule 30(b)(6) witness is “free to testify to matters outside his personal knowledge as long as they were within the corporate rubric.”). In fact, a corporation may have good reason not to produce the “most knowledgeable” witness as its Rule 1.310(b)(6) desig-nee, see QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 688-89 (S.D.Fla.2012), an example being a case such as this where the person with the “most knowledge” (i.e., Ms. Foley) may not totally embrace the corporation’s position.

Utilized properly, Rule 1.310(b)(6) streamlines the discovery process and gives the corporation being deposed more control by permitting it to select and prepare a witness to testify on its behalf. See Taylor, 166 F.R.D. at 361. In exchange for that control the entity is required to “have the right person present at the deposition.” King, 161 F.R.D. at 476. This of course benefits the requesting party as it prevents the corporation from frustrating the “opposing party’s discovery by simply playing ‘ping-pong” with him: the first official would disclaim knowledge, as would the second, and so on.” Plantation-Simon Inc., 596 So.2d at 1160.

When a Rule 1.310(b)(6) deposition is properly noticed and conducted, the testimony of the designee “is deemed to be the testimony of the corporation itself.” State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 212 (E.D.Pa.2008). As such, the testimony is binding on the entity. See, e.g., Resolution Trust Corp. v. Farmer, No. 92-3310, 1994 WL 317458, at *1 (E.D.Pa. June 24, 1994) (“The purpose behind Rule 30(b)(6) is to create testimony that will bind the corporation.”) (citations omitted). That does not, however, mean that the testimony is akin to a judicial admission which conclusively establishes a fact and estops the corporate party from offering other evidence on the matter. See State Farm Mut. Auto. Ins. Co., 250 F.R.D. at 212. Rather, “testimony given at a [Rule 1.310(b)(6)] deposition is evidence which, like other deposition testimony, can be contradicted.” Indus. Hard Chrome, Ltd. v. Hetran, Inc., 92 F.Supp.2d 786, 791 (N.D.Ill.2000). As one court put it:

It is true that a corporation is “bound” by its Rule 30(b)(6) testimony, in the same sense that any individual deposed under Rule 30(b)(1) would be “bound” by his or her testimony. All this means is that the witness has committed to a position at a particular point in time. It does not mean that the witness has made a judicial admission that formally and finally decides an issue.

W.R. Grace & Co. v. Viskase Corp., No. 90 C 5383, 1991 WL 211647, at *2 (N.D.Ill. Oct. 15, 1991); see also Trunnell v. Advance Stores Co., No. 1:11CV38-SPM/GRJ, 2012 WL 629527, at *2 (N.D.Fla. Feb. 28, 2012) (citing AstenJohnson, Inc. v. Columbia Cas. Co., 562 F.3d 213, 229 n. 9 (3d Cir.2009); A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir.2001); R & B Appliance Parts, Inc. v. Amana Co., 258 F.3d 783, 787 (8th Cir.2001); and 8A Wright, Miller and Marcus, Federal Practice and Procedure § 2103 at 469-71 (3d ed. 2010)).

The fact that Rule 1.310(b)(6) testimony is not conclusive does not mean that the corporation “may retract prior testimony with impunity.” State Farm Mut. Auto. Ins. Co., 250 F.R.D. at 212. Like any litigant a corporate party, “when met by a motion for summary judgment, may not repudiate or contradict by affidavit [its] previous deposition testimony so as to create a jury issue.” Cary v. Keene Corp., 472 So.2d 851, 853 (Fla. 1st DCA 1985) (citation omitted). As the Florida Supreme Court put it, a party should not be permitted to “baldly repudiate his previous deposition so as to create a jury issue.” Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954); see also Ondo v. F. Gary Gieseke, P.A., 697 So.2d 921 (Fla. 4th DCA 1997).

This principle, designed to protect the integrity of the judicial process, is not absolute. An exception arises when there is a “credible explanation by the affiant as to the reason for the discrepancy between his earlier and later” testimony. Croft v. York, 244 So.2d 161, 165 (Fla. 1st DCA 1971); see also Van T. Junkins v. U.S. Industries, Inc., 736 F.2d 656, 656 (11th Cir.1984) (“Although there may be some occasions where a party may by affidavit clarify testimony given in [a] deposition and thereby create a genuine issue as to a material fact, we ... hold a district court may find an affidavit which contradicts testimony on deposition a sham when the party merely contradicts its prior testimony without giving any valid explanation.”). As a result, every discrepancy between deposition testimony and a later affidavit does not justify a trial court’s “refusal to give credence to such evidence.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980); see also Choudhry v. Jenkins, 559 F.2d 1085, 1090 (7th Cir.1977) (finding summary judgment improper since later testimony was not a transparent sham).

C. ANALYSIS

Returning to the facts at hand, we first observe that the deposition of Ms. Foley was not properly noticed — or conducted — as prescribed by Rule 1.310(b)(6). The deposition notice makes no reference to the Rule at all, nor does it request that Carriage Hills “designate” one or more witnesses “to testify on its behalf ... about matters known or reasonably available to the organization.” Fla. R. Civ. P. 1.310(b)(6). It instead recites that JBH will take the deposition of the “corporate representative of Carriage Hills Condo with the most knowledge of the allegations of the complaint.” Though many members of the bar send such notices, “[n]ot only does the rule not provide for this type of discovery demand, but the request is also fundamentally inconsistent with the purpose and dynamics of the rule.” QBE Ins. Corp., 277 F.R.D. at 688. As we discussed earlier, Rule 1.310(b)(6) allows the corporation to select and prepare a designee without regard to his personal knowledge — or lack thereof. The notice also fails to “designate with reasonable particularity the matter on which examination is requested,” as required by Rule 1.310(b)(6). Its reference to “the allegations contained in the complaint” is unduly broad, particularly in a case involving a multi-count pleading sounding in contract and tort.

In response to this defective notice, Carriage Hills obliged JBH and produced Ms. Foley — the person who it believed had the “most knowledge” of the allegations in the complaint. She was tendered despite the fact that she disagreed with many of the corporation’s positions. And contrary to the trial court’s finding, Carriage Hills was not obligated to also designate “those persons it [Carriage Hills] felt had a different opinion from Mr. Foley.” If Rule 1.310(b)(6) was followed, Carriage Hills was free to designate anyone it wished, so long as it adequately prepared the witness to speak as the “voice” of the corporation. The notice sent by JBH, however, asked not for a Rule 1.310(b)(6) designee, but rather for the person with the “most knowledge”—and JBH received exactly what it requested. Had JBH wanted to ensure the attendance of a witness who would act solely as the “voice” of the corporation—and convey only the corporation’s position, it was required to comply with Rule 1.310(b)(6).

Carriage Hills likewise failed to satisfy its burden under Rule 1.310(b)(6), perhaps because the deposition was not noticed under the Rule. It did not prepare Ms. Foley to testify as to the corporation’s position, and she in fact did just the opposite, making clear that her “beliefs” and “opinions” were not necessarily “shared” by the Board. She also repeatedly disclaimed knowledge on critical issues such as whether JBH was paid all amounts it was owed, and repeatedly testified that she was “not aware” of facts tending to prove—or disprove—JBH’s claims and Carriage Hills’ defenses. In sum, it is clear that she testified only as to her personal knowledge, regardless of whether her views were shared by the corporation. She was not prepared to—nor did she— serve as Carriage Hills’ “voice” as would a properly noticed and prepared Rule 1.310(b)(6) designee.

Ms. Foley’s testimony, including that relied upon as a basis for the trial court’s summary judgment order, also exceeded the scope of the deposition notice. Even assuming she appeared as a properly noticed Rule 1.310(b)(6) designee on the subject of the allegations contained in JBH’s complaint, the testimony JBH highlighted in support of its motion was directed largely at Carriage Hills’ affirmative defenses, and in particular, defenses that were totally distinct from the complaint’s averments. As a result, her testimony clearly exceeded the scope of the notice and did not bind Carriage Hills. See Fal-chenberg v. New York State Dep’t of Educ., 642 F.Supp.2d 156, 164 (S.D.N.Y.2008) (“Questions and answers exceeding the scope of the ... notice will not bind the corporation, but are merely treated as the answers of the individual deponent.”).

Moreover, even if we considered Ms. Foley to be a proper Rule 1.310(b)(6) des-ignee as to all matters addressed in the deposition, the affidavits proffered by Carriage Hills did not “directly contradict” her testimony. On the question of whether JBH was owed money, Ms. Foley conceded only that “it is possible.” Similarly, she offered only her “layman opinion” on the question of whether JBH breached the agreement, an opinion she made clear was not shared by the corporation. She also said that she was “not aware” of any unauthorized or defective work, not that Carriage Hills’ claims to the contrary were false. This is hardly the type of unequivocal testimony that Carriage Hills would be precluded from rebutting. Compare with Hyde, 107 F.Supp.2d at 993 (E.D.La.2000) (subsequent affidavit contradicted deposition testimony regarding identity of manufacturer of the hammer at issue).

To be sure, the trier of fact will be able to consider Ms. Foley’s testimony, and Carriage Hills may be “bound” by it as any witness is bound “by his or her prior deposition testimony.” R & B Appliance Parts, Inc. v. Amana Co., L.P., 258 F.3d 783, 786 (8th Cir.2001) (noting that witnesses may change their testimony at trial subject to the risk of having their credibility impeached with deposition testimony). But the alleged discrepancy between Ms. Foley’s deposition testimony and that offered by Carriage Hills was not the type of “red light—green light” bald repudiation or contradiction warranting the extreme measure employed below, a measure courts should invoke sparingly, particularly when the witness is a person other than the individual who testified as the corporate designee. It is one thing to strike the testimony of a witness who directly contradicts his own prior statements given under oath. It is another thing to strike the testimony of a witness on the basis that it contradicts that of another person “designated” to speak on behalf of a corporation. In a situation where both witnesses clearly “speak” for the corporate party — and the contradiction is clear and unequivocal — such relief is surely permissible. See, e.g., Hyde, 107 F.Supp.2d at 993. The option to strike relevant testimony should, however, be exercised only when necessary to protect “the integrity of the judicial process.” R & B Appliance Parts, Inc., 258 F.3d at 787.

To summarize, we hold that before a trial judge may strike testimony offered by an entity on the basis that it repudiates or contradicts prior testimony given by a corporate representative, it must find that: (1) the prior deposition testimony was provided by a duly noticed Rule 1.810(b)(6) designee on a matter specified in the deposition notice, see Fla. R. Civ. P. 1.310(b)(6); (2) that the testimony subject to the motion to strike directly contradicts or repudiates unequivocal prior testimony regarding matters of fact, see Cary, 472 So.2d 851; Kennett-Murray Corp., 622 F.2d 887; R & B Appliance Parts, Inc., 258 F.3d 783; (3) that there is no credible and reasonable explanation for the discrepancy, see Hyde, 107 F.Supp.2d at 993; and (4) that striking the testimony is necessary in order to protect “the integrity of the judicial process,” see R & B Appliance Parts, 258 F.3d at 787. Absent such findings the alleged discrepancy is a matter to be considered by the trier of fact. As none of these criteria are satisfied here, the trial court erred in striking Carriage Hills’ affidavits.

Having found that the trial court erred in striking the testimony proffered by Carriage Hills in opposition to JBH’s Motion for Summary Judgment, we need not address the question of whether Ms. Foley’s testimony, standing unopposed, established the absence of any genuine issue of material fact. Nor do we need to address Carriage Hills’ contention that it was deprived due process by JBH’s failure to articulate the claims and defenses on which judgment was being sought.

The trial court’s order entering summary final judgment in favor of JBH is reversed and this cause is remanded for further proceedings consistent with this opinion.

GROSS and DAMOORGIAN, JJ., concur.

      . Because our rules of court procedures were patterned closely after the federal rules, federal cases interpreting comparable provisions are persuasive and routinely looked to for interpretive guidance. See Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 611 (Fla. 4th DCA 1975).

      . As the QBE court also noted, "permitting a requesting party to insist on the production of the most knowledgeable witness could lead to tíme wasting disputes over the comparative level of the witness' knowledge.” 277 F.R.D. at 688.


text:
    STATE of Florida, Appellant, v. Wallace DEATON, Appellee.
    No. 4D11-4628.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellee.
   GROSS, J.

We affirm the circuit court’s order granting the defendant’s motion to suppress because the arresting officer lacked probable cause to make an arrest despite finding one loose oxycodone pill in the defendant’s pocket during a consensual search performed after a traffic stop for a parking violation.

After witnessing Wallace Deaton improperly park his car, a detective conducted a traffic stop. The detective asked Deaton for his driver’s license and confirmed it “was good.” Deaton then “consented” to a search of his person, during which the detective found one 30 mg oxy-codone pill loose in the right coin pocket of his pants. Deaton explained that he had a prescription at home, but the detective arrested him on the spot.

Deaton moved to suppress the seizure of the pill, arguing that the detective lacked probable cause to make the warrantless arrest. The circuit court agreed and granted the motion, concluding that “there was nothing in and of itself in terms of the nature of the pill and how the pill was being carried on his person that gave [the detective] probable cause to arrest for the felony.”

“A law enforcement officer may arrest a person without a warrant when ... [a] felony has been committed and he or she reasonably believes that the person committed it.” § 901.15(2), Fla. Stat. (2011). The statute incorporates a probable cause standard, which exists “‘when the circumstances are sufficient to cause a reasonably cautious person to believe that the person [arrested] is guilty of the offense charged.” Daniel v. Village of Royal Palm Beach, 889 So.2d 988, 990 (Fla. 4th DCA 2004) (quoting Mailly v. Jenne, 867 So.2d 1250, 1251 (Fla. 4th DCA 2004)) (alterations in original). “The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based.” Blue v. State, 837 So.2d 541, 546 (Fla. 4th DCA 2003).

Unlike a drug such as heroin, oxy-codone may be lawfully possessed with a prescription. See §§ 893.03(2)(a)l.o, 893.13(6)(a), Fla. Stat. (2011). Deaton’s possession of a single pill in his pocket implied that he “was the ultimate user and nothing more.” People v. Coates, 266 P.3d 397, 400 (Colo.2011). Possession of the lone pill did not create a “fair probability that he had more of the same.” Id. Likewise, nothing Deaton did prior to the stop was consistent with a person trying to buy or sell drugs on the street. When confronted by the detective, Deaton did not engage in guilty behavior by running away or dropping the pill on the roadway. As the circuit judge noted, it is not unusual for a traveler with a valid prescription to separate a pill from a prescription bottle for later consumption. Deaton’s possession of the single pill did not give rise to probable cause that he was committing a felony.

The State cites to State v. Casey, 908 So.2d 600 (Fla. 2d DCA 2005), but, that case is distinguishable. In Casey, an officer made a traffic stop, discovered that the driver had a suspended license, and arrested her. Id. at 601. A search of her purse revealed five loose oxycodone pills. Id. The officer then told the driver to empty her pockets, which turned up an additional 11 oxycodone pills. Id. At the time of the search of the purse and pockets, the driver in Casey was already under arrest and was subject to a search incident to an arrest. The number of pills and the way they were carried generated far more suspicion of criminal conduct than the lone pill in this case.

Affirmed.

DAMOORGIAN, J., and STONE BARRY J., Senior Judge, concur.


text:
    C.M., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D12-3763.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Richard F. Joyce of Law Office of Richard F. Joyce, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.
    Hillary S. Kambour, Tavares, for appel-lee Guardian ad Litem Program.
   PER CURIAM.

Affirmed. See W.S. v. Dep’t of Children and Families, 961 So.2d 1131 (Fla. 4th DCA 2007); T.C. v. Dep’t of Children and Families, 961 So.2d 1060 (Fla. 4th DCA 2007).

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


text:
    Edgar B. FARMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4287.
    District Court of Appeal of Florida, First District.
    March 22, 2013.
    Edgar B. Farmer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on December 30, 2011, in Escambia County Circuit Court case numbers 2011-CF-002785-A and 2011-CF-002786-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

LEWIS, CLARK, and RAY, JJ., concur.


text:
    Dale Lee LENOIR, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D13-0430.
    District Court of Appeal of Florida, First District.
    March 26, 2013.
    Dale Lee Lenoir, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee (no appearances), for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R. Civ. P. 1.530(b); Fla. R.App. P. 9.020(0.

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Eduardo VARGAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-349.
    District Court of Appeal of Florida, Fourth District.
    March 27, 2013.
    Rehearing Denied March 27, 2013.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, and Eduardo Vargas, Blountstown, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing.

PER CURIAM.

Upon consideration of the appellant’s motion for rehearing, we find the facts of this case distinguishable from those in Herring v. State, 501 So.2d 19 (Fla. 3d DCA 1986), and Menna v. State, 846 So.2d 502 (Fla.2003). Accordingly, the appellant’s motion for rehearing is denied.

POLEN, GROSS and CONNER, JJ., concur.


text:
    In re J. Michael CUTSHAW.
    No. 2013-B-0348.
    Supreme Court of Louisiana.
    Feb. 20, 2013.
   ORDER

h Considering the Joint Petition for Interim Suspension filed by respondent, J. Michael Cutshaw, and the Office of Disciplinary Counsel,

IT IS ORDERED that J. Michael Cut-shaw, Louisiana Bar Roll number 4690, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana


text:
    In re Caecilie R. SCHWARZ.
    No. 2013-B-0160.
    Supreme Court of Louisiana.
    Feb. 22, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent twice forged her deceased father’s name on documents needed to transfer the title of a 1995 Dodge Neon to her name. Respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Caecilie R. Schwarz, Louisiana Bar Roll number 19992, be and she hereby is suspended from the practice of law for one year and one day. All but six months of this suspension shall be deferred. It is further ordered that respondent attend the Louisiana State Bar Association’s Ethics School and make restitution to her parents’ succession in the amount of the fair market value of the 1995 Dodge Neon. Any failure of respondent to comply with these conditions, or any additional misconduct during the period of suspension, may be grounds for making the deferred portion of the suspension executory or imposing additional discipline, as appropriate.

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 Alan Dean ALARIO, II.
    No. 2013-B-0166.
    Supreme Court of Louisiana.
    Feb. 22, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into respondent’s arrests for driving while intoxicated. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Alan Dean Alario, II, Louisiana Bar Roll number 26780, be suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety, subject to the conditions set forth in the petition for consent discipline. Any failure of respondent to comply with said conditions may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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:
    STATE of Louisiana v. David HARDY.
    No. 2013-KK-0301.
    Supreme Court of Louisiana.
    March 15, 2013.
   PER CURIAM.

We grant the State’s application to consider the propriety of orders issued by the district court, and affirmed by the court of appeal, which directed the prosecution to preserve and protect already collected biologic evidence, relative to this case, and prohibited the “undertaking or completing” by the prosecution of any further collection, examination, review, or testing of the biologic evidence, without prior notice to the defense and without allowing an opportunity for the defense to “appear at, witness and record such undertakings.” For the reasons that follow, we vacate the district court orders.

After the defendant’s genetic profile was linked to evidence in the May 20, 1993 aggravated kidnapping and aggravated rape of C.H., via an FBI Combined DNA Index System (“CODIS”) “hit,” he was indicted by a grand jury, on or about February 24, 2011, for these crimes. Subsequently, the defendant filed a motion requesting that an expert (to be retained on his behalf at a later date) be allowed to be present for the prosecution’s DNA testing of the biologic material, which had been obtained from the defendant, via a subsequent buccal swab, for the purpose of confirming the DNA match with the evidence obtained in connection with the rape and kidnapping of C.H. Despite the prosecution’s offer to provide the defense with one-half of the biologic specimen collected from the defendant, so that the defense could conduct independent testing, the district court issued orders, on March 30, 2012 and on September 26, 2012, that would allow a defense expert (who, at that time, still had not been identified) to be present at the Louisiana State Police Crime Lab (“LSPCL”), when DNA testing was conducted on behalf of the prosecution, and that would prohibit the prosecution from proceeding with the testing until said expert could be retained by defense.

Louisiana Code of Criminal Procedure Article 719 provides that, upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial; exculpatory evidence must be produced under this article even though not intended for use at trial. In addition, Article 719 states that, upon motion of the defendant, whenever the court orders the defendant to provide urine, blood, saliva, or hair samples or samples of other bodily substances for de-oxyribonucleic acid testing in a criminal case, the defendant must be allowed to acquire one-half of the deoxyribonucleic acid sample, for separate testing by the defendant at his expense.

In the instant case, the prosecution’s offer to provide the defense with one-half of the biologic specimen collected from the defendant, for independent testing, satisfied the requirements of LSA-C.Cr.P. art. 719, and there was no showing by the defendant that he was entitled to discovery beyond that authorized by LSA-C.Cr.P. art. 719. To the extent that the defendant expressed an interest in discovering the LSPCL’s testing methods and procedures, he is limited, by the Code of Criminal Procedure’s discovery provisions, to requesting discovery of any existing written or recorded books, papers, documents, photographs, and/or other tangible objects, such as texts or manuals, subject to the limitations set forth in LSA-C.Cr.P. art. 928. See LSA-C.Cr.P. art. 918; LSA-C.Cr.P. art. 928. See also State v. Manning, 2003-1982 (La.10/19/04), 885 So.2d 1044, 1087-88 (noting that the computer program used by the prosecution’s expert, to calculate the frequency rates of specific DNA profiles appearing in various populations, had been made available to the defense during discovery); State v. Stelly, 94-306 (La.App. 3 Cir. 11/2/94), 645 So.2d 804, 808, writ denied, 94-3103 (La.4/28/95), 653 So.2d 589 (wherein the defendant had been allowed access to scientific texts utilized by the prosecution’s genetics testing laboratory).

Accordingly, we conclude that the district court erred in issuing its March 30, 2012 and September 26, 2012 orders in favor of the defendant, which placed limitations on the prosecution’s DNA testing of biologic samples; therefore, we hereby vacate those orders and remand for further proceedings in accordance with the foregoing.

WRIT GRANTED; MARCH 30, 2012 AND SEPTEMBER 26, 2012 DISTRICT COURT ORDERS VACATED; REMANDED.

      . See LSA-R.S. 15:601 etseq.

      . Article 918 provides:
      Subject to the limitation of Article 723, and except as otherwise prohibited by law, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant, or an expert working with the defendant, to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof that are within the possession, custody, or control of the state, and that:
      (1) are favorable to the defendant and that are material and relevant to the issue of guilt or punishment, or
      (2) are intended for use by the state as evidence at the trial, or
      (3)were obtained from or belong to the defendant.
      The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.

      . Article 923 provides:
      Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.


text:
    Michael DUPLANTIER and Kim Duplantier v. KREWE OF PYGMALION, Paidia Club, Inc. d/b/a Bards Of Bohemia, Entergy Corporation, New Orleans Police Department, ABC Tractor Driver, Lloyds of London Insurance Company, and DEF Insurance Company.
    No. 2013-CC-0006.
    Supreme Court of Louisiana.
    March 15, 2013.
   PER CURIAM.

Writ granted.

Considering the unique circumstances of this case, the judgment of the trial court denying the exception of insufficiency of service and ordering Mr. Guillot to answer is vacated and set aside. The court is directed to order Mr. Guillot be personally served or appoint an attorney pursuant to LSA-C.C.P. art. 5091 if his whereabouts cannot be ascertained.


text:
    Lela JOHNSON v. UNIVERSITY MEDICAL CENTER IN LAFAYETTE, et al.
    No. 2013-C-0040.
    Supreme Court of Louisiana.
    March 15, 2013.
   PER CURIAM.

In Johnson v. University Medical Center in Lafayette, 2007-1683 (La.11/21/07), 968 So.2d 724, this court reversed a district court’s judgment, which had refused to grant the State defendants’ motion (filed pursuant to LSA-C.C.P. art. 1672(C)) to dismiss the plaintiffs petition, on the State’s contention that the plaintiff had failed to properly request service within ninety days of the filing of the original petition (as required by LSA-R.S. 13:5107(D)); judgment was entered in favor of the State defendants, dismissing the plaintiffs suit (which had been instituted on March 16, 2006), without prejudice.

On January 31, 2011, rather than filing a new suit, the plaintiff requested the Lafayette Parish Clerk of Court to again serve her March 15, 2006 petition on the State defendants. The State defendants responded by filing exceptions of insufficiency of process and prescription, as well as a motion to dismiss the suit. Thereafter, the district court dismissed the plaintiffs suit.

The plaintiff filed an appeal of this dismissal, but failed to pay the appeal costs to the clerk of court within twenty days of the mailing of notice of the estimated costs of appeal, as required by LSA-C.C.P. art. 2126. The State filed a motion to dismiss the appeal for nonpayment of costs, and following an October 31, 2011 hearing on the motion, the plaintiffs appeal was dismissed by the district court, despite the plaintiffs October 28, 2011 payment, albeit late, of the estimated appeal costs.

The plaintiff appealed the dismissal of her appeal to the Third Circuit. The appellate court noted that the limited issue before it was whether the trial court erred in dismissing the plaintiffs appeal as having been abandoned, and that it considered only that issue. The Third Circuit reasoned that the plaintiffs payment of appeal costs, prior to the district court’s October 31, 2011 hearing, satisfied the dual purpose of LSA-C.C.P. art. 2126, as stated in Pray v. First National Bank of Jeffer son Parish, 93-3027 (La.2/11/94), 634 So.2d 1163 (i.e., (1) to dismiss appeals for nonpayment of costs in those cases in which the appellant files a timely appeal and thereafter decides not to pursue it, and (2) to ensure prompt payment of costs of appeal by dilatory appellants; however, the focus of district courts, in deciding Article 2126 motions to dismiss, should be on securing payment of costs in order to move appeals forward rather than on dismissing appeals that obviously have not been abandoned, even though a motion to dismiss may have been filed immediately after expiration of the twenty-day period for paying the costs). Noting that jurisprudence has held that an appellant’s payment of appeal costs, prior to a hearing on a motion to dismiss an appeal, evidences an intent by the appellant to maintain the appeal, rather than to abandon, the Third Circuit concluded that, although the district court may have applied other sanctions, it abused its discretion in dismissing the plaintiffs appeal. See Johnson v. University Medical Center in Lafayette, 2012-0586 (La.App. 3 Cir. 12/5/12), 104 So.3d 726. The State defendants have now applied to this court for review.

Louisiana Code of Civil Procedure Article 1673 provides, in pertinent part: “A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.” (Emphasis added.) When an action has been dismissed by final judgment, that action is at an end, and a plaintiff cannot thereafter assert new allegations or demands in that proceeding; the plaintiffs remedy is to file a new and separate suit. See Hayes v. Muller, 248 La. 934, 183 So.2d 310 (La.1966). The dismissal of the plaintiffs suit, as instituted by her March 16, 2006 petition, was fully and finally dismissed, without prejudice, pursuant to LSA-R.S. 13:5107(D), by this court’s November 21, 2007 judgment, rendered in Johnson v. University Medical Center in Lafayette, 2007-1683, supra. That judgment of dismissal is now res judicata, which can be noticed by either the trial or an appellate court on its own motion. See LSA-C.C.P. art. 927.

Accordingly, we grant the application for certiorari in this case, and we conclude that any further allegations or demands are now barred in this suit. The judgment of the appellate court is reversed and the district court judgment of dismissal is reinstated.

WRIT GRANTED; APPELLATE COURT DECISION REVERSED; DISTRICT COURT JUDGMENT OF DISMISSAL REINSTATED.

      . Article 1672(C) provides:
      A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

      . Revised Statute 13:5107(D) provides:
      (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
      (2) If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C)....

        See also LSA-C.C.P. art. 1201(C) (providing: "Service of the citation shall be requested on all named defendants within ninety days of commencement of the action.”).


text:
    In re Lenise Rochelle WILLIAMS.
    No. 2013-B-0417.
    Supreme Court of Louisiana.
    March 15, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to provide competent representation to a client, neglected a legal matter, and failed to adequately communicate with a client. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Lenise Rochelle Williams, Louisiana Bar Roll number 29706, be publicly reprimanded.

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


text:
    STATE of Louisiana v. Dale ELMORE.
    No. 2013-KK-0483.
    Supreme Court of Louisiana.
    March 6, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 505-700; to the Court of Appeal, Fourth Circuit, No. 2013-K-0231.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Michael LOUDING.
    No. 2013-KK-0436.
    Supreme Court of Louisiana.
    March 6, 2013.
   In re Louding, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 06-10-0234; to the Court of Appeal, First Circuit, No. 2012 KW 1954.

Denied.

VICTORY, WEIMER and HUGHES, JJ., would grant in part; deny in part.


text:
    STATE of Louisiana v. Darrius R. WILLIAMS.
    No. 2012-K-1723.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Williams, Darrius R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 273,438; to the Court of Appeal, Second Circuit, No. 47,146-KA.

Granted in part; otherwise denied. This case is remanded to the district court for reconsideration of sentence after conducting a hearing in accord with the principles enunciated in Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and stating the reasons for reconsideration and sentencing on the record. See State v. Graham, 11-2260 (La.10/12/12), 99 So.3d 28. In all other respects, the application is denied.


text:
    Brenda B. SQUARE v. Leonce “Lee” HAMPTON, et al.
    No. 2013-CC-0167.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Amistad Research Center; Hampton, Leonce Lee et al.; Query, Lance;— Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2009-07175; to the Court of Appeal, Fourth Circuit, No. 2012-C-1545.

Granted. Plaintiff has failed to produce factual support for her claim of intentional infliction of emotional distress. See White v. Monsanto Co., 585 So.2d 1205 (La.1991). Accordingly, the judgment of the district court is reversed, and relators’ motion for summary judgment is granted.


text:
    Valerie D. HARRIS v. LOUISIANA STATE UNIVERSITY BEHAVIORAL HEALTH SERVICES (Interim LSU Public Hospital).
    No. 2013-C-0193.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Harris, Valerie D.; — Plaintiff; Applying For Writ of Certiorari and/or Review State of Louisiana Civil Service Commission, No. S-16894; to the Court of Appeal, First Circuit, No. 2012 CA 0033.

Granted. Case remanded to the court of appeal for reconsideration in light of City of Bossier City v. Vernon, 12-0078 (La.10/16/12), 100 So.3d 301.


text:
    STATE of Louisiana v. Freddie BANKS.
    No. 2012-K-1984.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Banks, Freddie; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 09-4518; to the Court of Appeal, Fifth Circuit, No. ll-KA-961.

Not considered. Untimely.


text:
    Donald WILLIAMS, III v. THE LIBRARY, Fre-Mon, Inc. and Donovan Fremin.
    No. 2013-C-0155.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Donald Williams, III; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. B, No. 118,142; to the Court of Appeal, First Circuit, No. 2012 CA 0220.

Not considered. Untimely.


text:
    The NEW ORLEANS JAZZ AND HERITAGE FOUNDATION, INC. v. Karlton KIRKSEY.
    No. 2013-C-0203.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Kirksey, Karlton; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 11-04670; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0202.

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


text:
    HOLLOWAY DRILLING EQUIPMENT, INC., et al. v. Danielle BODIN, et al.
    No. 2013-C-0251.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Holloway Drilling Equipment, Inc. et al.; Holloway Rentals, Inc.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. G, No. 2010-1717; to the Court of Appeal, Third Circuit, No. 12-355.

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


text:
    STATE ex rel. Johnny Dekeon EDWARDS v. STATE of Louisiana.
    No. 2012-KH-2111.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Edwards, Johnny Dekeon; — Plaintiff; Applying for Reconsideration of this court’s action dated February 8, 2013, Parish of Caddo, 1st Judicial District Court, Div. 8, No. 292620; to the Court of Appeal, Second Circuit, No. 47,711-KH.

Reconsideration denied.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2012-KH-2113.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Lay, Richard; — Plaintiff; Applying for Reconsideration of this Court’s action dated February 8, 2013, and from Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 383759-F; to the Court of Appeal, First Circuit, No. 2012 KW 1066.

Reconsideration denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Edward BURTON.
    No. 2012-KP-1708.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Burton, Edward; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 391-509; to the Court of Appeal, Fourth Circuit, No. 2012-K-0479.

Denied.


text:
    STATE of Louisiana v. Jemdry GUITY.
    No. 2012-K-1836.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Guity, Jemdry; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 494-004; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0907.

Denied.


text:
    STATE of Louisiana v. Catrina L. WALLACE.
    No. 2012-K-1861.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Wallace, Catrina L.; State of Louisiana; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of La-salle, 28th Judicial District Court Div. 0, No. 89648; to the Court of Appeal, Third Circuit, No. 11-1258.

Denied.

VICTORY, KNOLL and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Catrina L. WALLACE.
    No. 2012-K-1865.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Wallace, Catrina L.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lasalle, 28th Judicial District Court Div. O, No. 89648; to the Court of Appeal, Third Circuit, No. 11-1258.

Denied.


text:
    STATE of Louisiana v. Cornelius ARMSTEAD.
    No. 2012-KO-1881.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Armstead, Cornelius; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 495-147; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1344.

Denied.


text:
    STATE of Louisiana v. Christopher D. TAYLOR.
    No. 2012-KO-1898.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Taylor, Christopher D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 271,412; to the Court of Appeal, Second Circuit, No. 47,400-KA.

Denied.


text:
    STATE of Louisiana v. David HENRY.
    No. 2012-KO-1917.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Henry, David; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 5, No. 281,828; to the Court of Appeal, Second Circuit, No. 47,323-KA.

Denied.


text:
    STATE of Louisiana v. Scott Lynn JONES.
    No. 2012-KO-1935.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Jones, Scott Lynn; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 5, No. 286,836; to the Court of Appeal, Second Circuit, No. 47,-249-KA.

Denied.


text:
    STATE ex rel. Glenn BRUMFIELD v. STATE of Louisiana.
    No. 2012-KH-2088.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Brumfield, Glenn; Plaintiff; Applying for Reconsideration of this Court’s action dated January 25, 2013; Parish of Jefferson, 24th Judicial District Court Div. F, No. 00-5362, 03-2741; to the Court of Appeal, Fifth Circuit, No. 12-KH-275.

Reconsideration denied.


text:
    STATE of Louisiana v. Kristopher HOUGH.
    No. 2012-KO-1936.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Hough, Kristopher; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. A, No. 82177; to the Court of Appeal, Second Circuit, No. 47,-308-KA.

Denied.


text:
    STATE of Louisiana v. Jermaine WILLIAMS.
    No. 2012-K-1942.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Tensas, 6th Judicial District Court Div. A, No. 82671; to the Court of Appeal, Second Circuit, No. 46,814-KA.

Denied.


text:
    STATE of Louisiana v. Daniel Frank GUESS, Jr.
    No. 2012-KO-1987.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Guess Jr., Daniel Frank; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. F, No. 10-F0144; to the Court of Appeal, Second Circuit, No. 47,370-KA.

Denied.


text:
    STATE ex rel. Glenn Charles AYO v. STATE of Louisiana.
    No. 2012-KH-2093.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Ayo, Glenn Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 07-369; to the Court of Appeal, Fifth Circuit, No. 12-KH-583.

Denied.


text:
    STATE ex rel. Darryl HOLMES v. STATE of Louisiana.
    No. 2012-KH-2223.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Holmes, Darryl A.;- — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 130,157; to the Court of Appeal, Third Circuit, No. KH 11-1507.

Denied.


text:
    STATE ex rel. Michael C. WILSON v. STATE of Louisiana.
    No. 2012-KH-2255.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Wilson, Michael C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 471-804; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0960.

Denied.


text:
    STATE ex rel. Ragan MAYO v. STATE of Louisiana.
    No. 2012-KH-2256.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Mayo, Ragan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 50,271; to the Court of Appeal, Third Circuit, No. KH 12-01026.

Denied. Repetitive. Cf. La.C.Cr.P. art. 980.4(D).


text:
    STATE ex rel. Franklin REDFEARN v. STATE of Louisiana.
    No. 2012-KH-2258.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Redfearn, Franklin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 07-F-21074; to the Court of Appeal, Second Circuit, No. 47,757-KH.

Denied.


text:
    STATE ex rel. Nat’e WALKER v. STATE of Louisiana.
    No. 2012-KH-2311.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Walker, Nat’e; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, No. 22852; to the Court of Appeal, First Circuit, No. 2012 KW 1343.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Levell H. DOUGHTY v. STATE of Louisiana.
    No. 2012-KH-2313.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Doughty, Levell H.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, to the Court of Appeal, Fourth Circuit, No. 2012-K-1380.

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


text:
    STATE ex rel. Christopher BELL v. STATE of Louisiana.
    No. 2012-KH-2314.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Bell, Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bienville, 2nd Judicial District Court Div. C, No. 40,414; to the Court of Appeal, Second Circuit, No. 47,-694-KH.

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


text:
    STATE ex rel. Robert SALTZMAN v. STATE of Louisiana.
    No. 2012-KH-2317.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Saltzman, Robert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, No. 53535; to the Court of Appeal, Third Circuit, No. KH 10-00778.

Denied.


text:
    STATE ex rel. Rickey GIPSON v. STATE of Louisiana.
    No. 2012-KH-2318.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Gipson, Rickey; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 145,576; to the Court of Appeal, Second Circuit, No. 47,812-KH.

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


text:
    STATE ex rel. Sugar Ray LEWIS v. STATE of Louisiana.
    No. 2012-KH-2337.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Lewis, Sugar Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 372-469; to the Court of Appeal, Fourth Circuit, No. 2012-K-1392.

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


text:
    QUANTUM RESOURCES MANAGEMENT, L.L.C. and Milagro Producing, L.L.C. v. PIRATE LAKE OIL CORP., et al. Quantum Resources Management, L.L.C. and Milagro Producing, L.L.C. v. Pirate Lake Oil Corp., et al.
    No. 2013-C-0084.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Jones, Jennifer Elizabeth; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 686-816; to the Court of Appeal, Fifth Circuit, Nos. 12-CA-256, 12-CA-338.

Denied.