text:
    Lorenza SESSIONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1061.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

The defendant appealed from his conviction and sentence for attempted second degree murder as a lesser included offense of attempted first degree murder. This court affirmed. Sessions v. State, 59 So.3d 1208 (Fla. 4th DCA 2011). Our affirmance was based on our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (“Williams I ”). Williams I held that the giving of the standard jury instruction on attempted voluntary manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder.

The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court quashed this court’s opinion in Williams I. Williams v. State, 123 So.3d 23, 30 (Fla.2013) (“Williams II”). The Court held:

[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense. Id. at 27. The Court then, by order, accepted jurisdiction of this case, quashed this court’s opinion in this case, and remanded for reconsideration upon application of its opinion in Williams II. Sessions v. State, No. SC11-894, 2014 WL 289813 (Fla.2014).

In light of Williams II, we hold that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter by act. We reverse and remand for a new trial on the charge of attempted second degree murder.

Reversed and Remanded for proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jakall WALDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-503.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Rehearing Denied May 7, 2014.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jakall Walden appeals the denial of his motion to withdraw plea, as well as his two convictions for aggravated assault on a law enforcement officer and three convictions for high speed or wanton fleeing, claiming that such convictions violate double jeopardy. We affirm the trial court’s rulings.

With regard to the multiple convictions for high speed or wanton fleeing, the record does not clearly indicate the number of officers and authorized law enforcement patrol vehicles that were involved in the chase. Because the record does not sufficiently demonstrate the necessary facts that we would need to resolve the issue, we affirm. See Boress v. State, 902 So.2d 852 (Fla. 5th DCA 2005) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (“[T]he decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.”)).

Affirmed.

WARNER, CONNER and FORST JJ., concur.


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. Ensi PRUDENT, Appellee.
    No. 3D12-1852.
    District Court of Appeal of Florida, Third District.
    April 9, 2014.

      Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellee.
    Before ROTHENBERG, EMAS, and SCALES, JJ.
   ROTHENBERG, J.

The defendant, Ensi Prudent, filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, asserting ineffective assistance of trial counsel. Following an extensive evi-dentiary hearing, the trial court granted the defendant’s motion and awarded him a new trial. Based on the trial court’s relevant findings of fact, which are supported by competent, substantial evidence, we find no error in the trial court’s legal conclusion that trial counsel’s performance was deficient, and that the deficiency prejudiced the defendant. See Rojas v. State, 922 So.2d 350, 352 (Fla. 3d DCA 2006) (“A claim of ineffective assistance of counsel is a mixed question of law and fact. The trial court’s factual findings and credibility determinations are afforded deference and if supported by competent, substantial evidence, will not be disturbed on appeal.”). Accordingly, we affirm the order under review.

Affirmed.


text:
    Devin ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3385.
    District Court of Appeal of Florida, Third District.
    April 9, 2014.
    Rehearing Denied May 9, 2014.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, SALTER and LOGUE, JJ.
   PER CURIAM.

Devin Robinson appeals an order finding that he violated his probation and imposing a prison sentence. We affirm the violation of probation. However, the affir-mance is without prejudice to the defendant filing an appropriate Rule 3.800 motion to correct the written sentence. The record demonstrates that defense counsel did bring the correct credit time to the court’s attention, and the court orally awarded the proper credit. The written order does not reflect this award.

Affirmed without prejudice.


text:
    R.B., Appellant, v DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D13-2753.
    District Court of Appeal of Florida, Third District.
    April 9, 2014.
    Thomas Butler, P.A., and Thomas J. Butler, for appellant.
    Before LAGOA, SALTER, and LOGUE, JJ.
   PER CURIAM.

Karla Perkins, for the Department of Children and Families; Hillary S. Kamb-our, Guardian ad Litem Program.

We affirm the termination of the appellant’s parental rights as to his minor child, E.B., based on the evidence that he has been convicted and sentenced to fifteen years in prison. The appellant testified that his incarceration began June 19, 2011, when E.B. was two and one-half years old. Setting aside the speculative possibility of a pardon, substantial competent evidence supports the trial judge’s determination that the appellant will be incarcerated for a period of time that constitutes a significant portion of E.B.’s minority. See § 39.806(l)(d)l, Fla. Stat. (2013).

Affirmed.


author: ROBERTS, J.

text:
    Ashley Renee CRITTENDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4677.
    District Court of Appeal of Florida, First District.
    April 14, 2014.
    Rehearing Denied May 20, 2014.

      Nancy A. Daniels, Public Defender, and Colleen Dierdre Mullen, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Kristen Lynn Bonjour and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Ashley Crittenden, was charged with one count of battery on a person 65 years of age or older, a third-degree felony, and one count of misdemeanor battery both arising out of an altercation that occurred on April 20, 2013. The appellant filed a motion to dismiss the felony battery charge, arguing that there were no material disputed facts and the undisputed facts did not establish a pñma facie case of battery on a person 65 years of age or older. The appellant did not contest the misdemeanor battery. The State filed a traverse and demurrer in response. After a hearing, the trial court denied the motion to dismiss. The appellant subsequently pled no contest to the charges, reserving the right to appeal the denial of the motion to dismiss. We affirm.

The undisputed facts are as follows. The appellant was engaged in a physical altercation with Kiani Dale. While attempting to strike Dale, the appellant inadvertently hit the victim when he stepped in between the two women. The victim was hit on the side of the head, which caused him to fall to his knees and break his eyeglasses. It is undisputed that the victim was 65 years or older at the time of the altercation.

Section 784.08, Florida Statutes (2013), provides, in part:

(2) Whenever a person is charged with committing ... a battery ... upon a person 65 years of age or older, regardless of whether he or she knows or has reason to know the age of the victim, the offense for which the person is charged shall be reclassified as follows:
(c) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

§ 784.08(2)(c), Fla. Stat. (2013).

The appellant’s argument below and on appeal is that her intent to hit Dale could not be transferred to the victim in order to enhance the battery from a first-degree misdemeanor to a third-degree felony. In support, she heavily relies upon Mordica v. State, 618 So.2d 301 (Fla. 1st DCA 1993), in which this Court held that the State could not apply the doctrine of transferred intent to enhance the severity of the appellant’s crime from simple battery (on an inmate) to battery of a law enforcement officer (LEO) by only proving that simple battery against the inmate was intended. This Court viewed the doctrine of transferred intent as operating to “transfer the defendant’s intent as to the intended victim to the unintended victim, and nothing more.” Id. at 304. Because battery of a LEO required proof of the specific intent to knowingly commit battery against a LEO, proof that the defendant intended to commit simple battery was insufficient. Id. The rationale in Mordica has been discussed in other contexts. See e.g., V.M. v. State, 729 So.2d 428 (Fla. 1st DCA 1999) (stating that the doctrine of transferred intent would not apply to elevate V.M.’s general intent to commit a simple battery on her brother to the specific intent required to commit a battery on a pregnant person); S.G. v. State, 29 So.3d 383 (Fla. 5th DCA 2010) (stating that the doctrine of transferred intent would not apply to transfer the intent to strike a student, a simple battery, to the intent to strike a school employee).

What distinguishes Mordica, V.M., and S.G. from the instant case is that the enhancement statutes at issue all required proof of specific intent. See Mordica, 618 So.2d at 304 (stating that battery of a LEO under section 784.07, Florida Statutes (1989), was a specific intent crime that required that the offender knowingly commit the offense on a LEO); V.M., 729 So.2d at 429 (stating that the general intent to commit a simple battery would not transfer to the specific intent required to violate section 784.045(l)(b), Florida Statutes (1997), which required that the offender “knew or should have known that the victim was pregnant”); S.G., 29 So.3d at 384 (stating that the first-degree misdemeanor battery conviction could not be reclassified to a third-degree felony under section 784.081(2)(c), Florida Statutes (2008), which required that the offender knew or had reason to know the identity or position or employment of the victim).

In contrast here, battery on a person 65 years of age or older is a general intent crime. There is no requirement here that the appellant knew or reasonably should have known the victim’s age. In other words, the appellant’s general intent to commit simple battery upon Dale could transfer to the victim who, from the appellant’s perspective under the law, effectively occupied the same status as Dale. Cf. Sagner v. State, 791 So.2d 1156 (Fla. 4th DCA 2001) (finding the doctrine of transferred intent was applicable where the evidence showed that the defendant struck a bystander “occupying the same status as the intended victim, i.e. just ‘another person.’”). Accordingly, the appellant’s motion to dismiss the charge of felony battery on a person over 65 years of age was properly denied.

AFFIRMED.

WETHERELL and OSTERHAUS, JJ., concur.


text:
    V.M. Mother of S. M., A Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D14-0657.
    District Court of Appeal of Florida, First District.
    April 14, 2014.
    Rehearing Denied May 16, 2014.
    V.M. Mother of S. M., a Child, pro se, Appellant.
    Dwight O. Slater, Florida Department of Children and Families, Tallahassee; Kelley Schaeffer, Guardian ad Litem Program, Sanford, for Appellee.
   PER CURIAM.

The Court has determined that appellant’s notice of appeal failed to invoke its appellate jurisdiction in a timely manner. Accordingly, the appeal is dismissed. All pending motions are denied.

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


author: BENTON, J. MAKAR, J.,

text:
    Kelvin Terrill DORTCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0328.
    District Court of Appeal of Florida, First District.
    April 16, 2014.
    Rehearing Denied May 6, 2014.

      Tatiana A. Bertsch, of Equal Justice Initiative, Montgomery, Alabama, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On this appeal from resentencing required in the wake of Graham v. Florida, 560 U.S. 48, 180 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Kelvin T. Dortch challenges his new sentences: combined prison terms of 80 years, imposed for non-homicide offenses he committed as a fourteen-year-old. He raises several constitutional questions, none of which we find necessary to reach, because we agree with his contention that ordering his new sentences to run consecutively to a sentence imposed in another case, so that his sentences exceeded 100 years’ imprisonment in the aggregate, violated a binding pretrial stipulation. Accordingly, we reverse and remand for re-sentencing, with directions that the stipulation be honored.

Tried as an adult, the then youthful Mr. Dortch was convicted of armed sexual battery, two counts of armed robbery, and two counts of false imprisonment. He had earlier been convicted and sentenced to twenty-two years’ imprisonment for attempting escape while awaiting trial on the charges at issue in the present case. The original trial on the more serious charges was repeatedly delayed because of the unavailability of a state forensic expert. Anticipating further delays for the same reason, the prosecutor, Mr. Dortch and his trial counsel, signed a pretrial stipulation, which the prosecution drafted and the trial court approved.

In order “to expedite the trial of this case” and “to secure certain benefits to the Defendant,” the parties agreed that the state could introduce certain evidence without the forensic expert’s having to testify at trial to establish a predicate for its admission. If the state did use any of the evidence at trial, the stipulation provided, “the State and the Court agree that any sentence imposed in this case will be concurrent with the sentence imposed in case number 92-4605.” Case No. 92-4605 arose out of the attempted escape from county jail for which he had been separately convicted and sentenced.

At trial, the state adduced evidence permitted under the stipulation, without establishing the predicate that would have been necessary otherwise. But the jury hung. A few weeks before the retrial, the prosecutor sent defense counsel a letter taking the position that the stipulation was “nullified” because the forensic witness was available to testify at the second trial. The letter announced that “the State no longer agrees nor will the Court be bound by any limitation on the sentence imposed if the defendant is convicted.” On retrial, again as an adult, Mr. Dortch was found guilty on all charges.

He was adjudicated guilty and sentenced to three life sentences without parole on the sexual battery and robbery counts, with two of the three life sentences to run consecutively to each other, and all life sentences to run consecutively to the twenty-two years imposed for attempted escape in Case No. 92-4605. As far as the record reveals, the stipulation was not invoked at the original sentencing, on the direct appeal that ensued, or in any postconviction proceeding prior to 2011.

Some sixteen years after Mr. Dortch was originally sentenced, the United States Supreme Court decided Graham, holding for the first time that sentencing juvenile offenders to life imprisonment, without the possibility of parole, for non-homicide offenses violates the Eighth Amendment’s ban on cruel and unusual punishment. See Graham, 560 U.S. at 82, 130 S.Ct. 2011. Because he was a juvenile when he committed the non-homicide offenses for which he received life sentences, the trial court granted a state motion to correct what the state conceded was an illegal sentence, and set a resentencing hearing.

At resentencing, the defense sought specific performance of the stipulation, and defense counsel also asked the trial judge for a more lenient sentence, citing language in Graham, expounding on juveniles’ lack of maturity, diminished culpability, and capacity for growth and rehabilitation, as factors distinguishing juvenile from adult offenders. See Graham, 560 U.S. at 68-74, 130 S.Ct. 2011. The state argued that the stipulation was no longer binding and opposed leniency. The trial court resentenced Mr. Dortch to forty years’ incarceration on each of the “life without parole” counts, and ordered two of the forty-year sentences (but not the third) to run consecutively to each other. Ruling that it was not bound by the parties’ stipulation, the court ordered the forty-year sentences to run consecutively to the sentence in Case No. 92-4605, for a total of 102 years’ imprisonment.

On November 4, 2011, Mr. Dortch moved to correct the new sentence under Florida Rule of Criminal Procedure 3.800(b)(1). Among other things, the motion asserted that the resentencing court had unlawfully disregarded a binding, court-approved stipulation. After the trial court denied the Rule 3.800(b)(1) motion, Mr. Dortch appealed the denial on multiple grounds, but we address only the stipulation, and remand for resentencing because the trial court failed to honor the stipulation.

The motion to correct sentence filed November 4, 2011, preserved the point, even though the stipulation was not urged at the original sentencing. See State v. Collins, 985 So.2d 985, 989 (Fla.2008); Galindez v. State, 955 So.2d 517, 525 (Fla.2007) (Cantero, J., specially concurring) (“We have consistently held that resentencing proceedings must be a ‘clean slate,’ meaning that the defendant’s vacated sentence becomes a ‘nullity' and his ‘resentencing should proceed de novo on all issues bearing on the proper sentence.’” (citations omitted)). See also, e.g., Altman v. State, 756 So.2d 148, 150 (Fla. 4th DCA 2000) (holding defendant could challenge assignment of victim injury points for first time at resentencing); Baldwin v. State, 700 So.2d 95, 96 (Fla. 2d DCA 1997) (holding defendant could challenge the accuracy of a list of prior convictions on his scoresheet for first time at resentencing). The resen-tencing court ruled on the point but came to the conclusion that it was not bound by the stipulation, on grounds that the mistrial the first time out frustrated the purpose of the stipulation, and extinguished the parties’ rights and obligations under the stipulation, for that reason.

Here, as below, the appellant contends that the stipulation remains valid and binding because the trial court never formally authorized withdrawal from the stipulation, and because good cause to allow the state to withdraw never existed, in any event. He maintains that the letter the prosecutor sent purporting to rescind or nullify the agreement before the retrial was ineffective to override the stipulation. The state argues that the stipulation applied only to the original trial, and that, even if it remained in effect thereafter, Mr. Dortch should not be allowed to raise the issue now, after failing to raise it for some seventeen years.

At the outset, we reject any suggestion that a party to a stipulation may unilaterally “nullify” the stipulation as the state attempted to do in the present case. “A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971). A stipulation cannot be “impeached or swept aside” merely by the “bald statement” of a party desiring to renege. State ex rel. Alfred E. Destin Co. v. Heffeman, 47 So.2d 15, 17 (Fla.1950). “Although a stipulation is comparable to a contract in that it may embody all the essential elements of a contract, unlike a contract, the parties to a stipulation are before the court, and their agreement is subject to its supervision and may bind those incapable of binding themselves outside of court.” 2A Fla. Jur. 2d Agreed Case and Stipulations § 1 (footnotes omitted). To be relieved from a stipulation, a party must make a motion seeking the court’s leave to withdraw or amend, with notice to the other party, supported by an affidavit showing good cause. See Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991). There was no such motion in the present case. Nor was there good cause for such a motion, given the fact that appellant had already performed or discharged all his obligations under , the stipulation.

The state argues that the defendant’s failure to invoke the stipulation at the original sentencing operated as an implicit waiver of his rights under the stipulation, citing contract law like the following:

Contractual terms may be waived implicitly, as well as expressly, by the party that the term benefits. A party may waive a provision of a contract by a course of conduct in connection with the performance of the provision. Acts or conduct giving rise to a waiver need not be affirmative in nature; a waiver of one’s rights can occur by failing to speak out in vindication of a claim when there is duty to do so.
Waiver may also take place where the person for whom performance is to be rendered fails to exercise care or diligence as to performance by the other party. Thus, the failure of one party to object to the performance of the other party for a lengthy period of time constitutes a waiver, while forbearance for a reasonable time does not.

11 Fla. Jur. 2d Contracts § 254 (footnotes omitted); accord Medico-Dental Bldg. Co. of Los Angeles v. Horton & Converse, 21 Cal.2d 411,132 P.2d 457, 469 (1942); Arbogast v. Bryan, 393 So.2d 606, 608-09 (Fla. 4th DCA 1981); Pfeifle v. Tanabe, 620 N.W.2d 167, 172 (N.D.2000). But this is not a civil case, and a judicially approved stipulation is no mere contract.

In entering into the stipulation, the appellant waived important trial rights that would otherwise have operated in his favor and might even have resulted in an acquittal at the original trial. Nor, by its terms is the stipulation limited to the first trial. The stipulation provides:

If at trial the State uses any of the evidence permitted by this stipulation for the purposes stated herein, the State and the Court agree that any sentence imposed in this case will be concurrent with the sentence imposed in case number 92-4605.

Had the parties (and the trial court who approved the stipulation) intended that the stipulation apply only to the first trial, they could have drafted language to that effect. But they did not. Instead, the state tellingly attempted to “nullify” the stipulation.

A mistrial does not automatically wipe away all stipulations previously entered into. The question whether “a judicial admission continues to have effect for a subsequent part of the same proceedings, including a new trial” is answered in the affirmative by “orthodox English practice.” 9 John Henry Wigmore, Evidence in Trials at Common Law § 2593 (Chadbourn rev. 1981). See Mugge v. Jackson, 50 Fla. 235, 39 So. 157,158-59 (1905) (“The rule is that such agreements, when their terms are not limited to a particular occasion or temporary object, may be used on a second trial.”). See also Carrasco v. State, 122 S.W.3d 366, 369 (Tex.App.2003) (concluding that a pretrial stipulation to admission of certain exhibits in which the defendant admitted stabbing the victims to death was equally binding at a second murder trial, after the first trial ended in a mistrial, where nothing in the stipulation limited its use to the first trial). The state was entitled to rely on the stipulation upon retrial in the present case, even though it elected not to do so.

We may safely infer that the evidence the state did adduce under the stipulation at the original trial was — in the prosecution’s considered judgment at the time— critical to the case it put on at the first trial. It was apparently important to the state to go forward with the original trial when it did. The state, as the burdened party, has good reasons for trying cases sooner rather than later. Speedy trial rule aside, witnesses’s memories fade, and evidence goes missing. That the first trial ended in a mistrial did not end the stipulation’s effect or significance for either party, just because the state did not avail itself of the stipulation on the retrial. Although the first trial did not result in conviction, it is the legal and logical predicate for the conviction that was obtained on retrial. If the first trial had ended in acquittal, there could have been no retrial.

The state having had the benefit of the stipulation — an opportunity to present evidence it thought crucial, evidence that may have made the difference between a hung jury and an acquittal — the defense is likewise entitled to the benefit of the bargain. Because the stipulation was violated at resentencing, the appellant is entitled to be resentenced in accordance with the stipulation. Any constitutional or other issues to which resentencing may give rise can be dealt with in due course. See Alexander v. State, 821 So.2d 1270, 1271 (Fla. 5th DCA 2002) (“The other issues presented by Alexander in his brief can be addressed at the resentencing hearing-”). See also State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995) (holding as a “settled principle of constitutional law” that courts should avoid constitutional issues unnecessary to decision of a case).

Reversed and remanded.

RAY, J., concurs; MAKAR, J., dissents with opinion.

MAKAR, J.,

dissenting.

Tried, convicted and sentenced in 1994 as an adult, Dortch claimed at his Graham resentencing hearing that a stipulation entered prior to his original trial — one he had never previously sought to enforce — remains binding and should now operate to limit his decades-old sentence. While his life without parole sentences in 1994 must be adjusted in light of Graham, the revivification of the abandoned stipulation is unjustified and the recasting of its purpose is contrary to principles of finality.

Dortch and the State stipulated prior to his first trial in January 1994 that the State need not produce a forensic witness who was suffering from an injury. After the mistrial, the prosecutor announced via a letter his view that the stipulation was no longer applicable because the forensic expert would be available for the second trial scheduled for March 1994.

I have been advised this date that both Julie Cooper and Charlotte Word will be available for trial during the week of March 7, 1994. You were out of your office so I told Judge Tarbuck of their availability. Judge Tarbuck tentatively set the Dortch trial for Tuesday, March 8, beginning at 9:30 a.m. Jury selection will be on a regular jury selection date prior to the trial date. Please let Judge Tarbuck know immediately if this is not acceptable to you.
As you know, the State, the defendant and defense counsel entered into a stipulation which was agreed to by the Court. The case then proceeded to trial which resulted in a hung jury and’ a mistrial. Since Julie Cooper is now available, the stipulation relating to the diagnostic testing by Cellmark Diagnostics previously entered into is hereby nullified. Specifically the State will be required to prove chain of custody, the amplification of the DNA and DNA typing. Likewise, the State no longer agrees nor will the Court be bound by any limitation on the sentence imposed if the defendant is convicted. Specifically, the Court may impose any legal sentence either concurrent or consecutive to any other sentence previously imposed.

Dortch did not object to the State’s position. The trial proceeded, the State met its evidentiary obligations at trial via its live expert, and the jury rendered guilty verdicts as to all charges. At sentencing, Dortch again lodged no objection to the State’s position; nor did he affirmatively assert the stipulation applied to his sentence. Likewise, Dortch never raised the stipulation as an issue in a direct appeal; nor did he do so in any collateral review of his conviction or sentence. Ordinarily, this wholesale failure to assert an entitlement to a claimed right affecting sentencing amounts to waiver, or abandonment. Kilpatrick v. State, 422 So.2d 934, 935 (Fla. 1st DCA 1982) (The fact that the basis of the defendant’s collateral attack is alleged to be one of constitutional dimension does not preclude a waiver by the failure to assert it on direct appeal.”) (quoting Roth v. State, 385 So.2d 114, 115 (Fla. 3d DCA 1980)).

Seventeen years passed. In 2011, the State filed a motion seeking resentencing of Dortch in light of the Graham decision because Dortch had yet to do so. But for the happenstance of Graham resentencing, the 1994 stipulation was a closed chapter whose vitality seemingly had expired long ago. During the resentencing hearing, however, the defense verbally raised the issue of the stipulation for the first time without notice to the State or the trial court, which continued the issue to a second hearing. After carefully reviewing the issue (including a memorandum provided at the second hearing), the trial court concluded that it was not bound by the stipulation, and imposed forty years’ imprisonment on each of the “life without parole counts,” ordered two of those sentences to run consecutively, and ordered those sentences to run consecutively to the twenty-two year sentence imposed in another case.

On the merits, the trial court was correct in disallowing Dortch to resuscitate his abandoned claim of right under the stipulation, which was not asserted for nearly two decades; even a stipulation can be foregone. See generally Fed. Land Bank of Columbia v. Brooks, 139 Fla. 506, 516,190 So. 737 (1939) (stipulations are not to be construed technically, but rather in accordance with their spirit and in the furtherance of justice). No case holds that a resentencing court must ignore a nearly two-decade failure to assert what is essentially a stale and abandoned issue as to a stipulation’s applicability, wording, and intent. It was Dortch’s obligation to raise the issue long ago; his total inaction amounts to waiver and abandonment.

Even if the stipulation could be resuscitated, its language indicates that it would apply to “any sentence imposed in this case,” a phrase that should be understood in light of circumstances existing at the time of the original trial, which show that its only purpose was to avoid delay due to the unavailability of the witness for the January trial date. To enforce the stipulation, the court had to construe it. Naghtin v. Jones By and Through Jones, 680 So.2d 573, 576 (Fla. 1st DCA 1996). And in so doing, it was required to interpret the stipulation in view of the result the parties were trying to accomplish. Fed. Land Bank of Columbia, 139 Fla. at 516, 190 So. 737. While stipulations differ from contracts in some ways, construing them is ultimately a judicial function akin to contractual interpretation. That is what the trial court did here, concluding that even if the stipulation had not been abandoned or waived, it was inapplicable to other than the original trial.

Indeed, Dortch relied almost exclusively on contract principles below, characterizing the parties’ agreement as a “stipulation contract” and arguing contract theory in support of his interpretation. The heading in his brief stated “THIS COURT’S SENTENCE UNLAWFULLY BREACHED A BINDING PRE-TRIAL STIPULATION CONTRACT.” He argued the “plain language of the [stipulation] contract” supported his view; that his contractual right should not be forfeited even though he failed to exercise it; he concluded by saying the resentencing court’s “sentence unlawfully breached a binding, pretrial stipulation contract from which the State never properly withdrew.”

A prescient prosecutor (which all must now be in light of this court’s decision) might have drafted the stipulation to take into account the potential for a mistrial and made it applicable only for the first one; but it is unfair to impose that obligation on the State twenty years later when Dortch himself remained silent and never objected or sought to enforce the claimed right. It also second-guesses the trial court’s interpretation of the stipulation’s language by imputing motives and intents to the participants, none of whom are readily available to explain the context and intent of the stipulation decades later. The record — rather than supporting a perpetual, non-waivable right flowing from the stipulation — supports the contrary conclusion: that Dortch and his prior counsel understood the stipulation applied only to expedite the first trial and that it was never contemplated it would be used in a later trial when the injured witness would become available. If they had a different view, the time to assert it has long since passed. The trial court’s holding in this regard is wholly supportable. Reviving the stipulation a generation after its conception has a prestidigitational quality that rewards inaction and undermines principles of finality; even if timely raised, the record does not support construing the stipulation so broadly. I would affirm on this issue.

I.

One benefit of reviving the stipulation is avoidance of the question of whether the 102-year cumulative sentence imposed for the two criminal episodes by the resen-tencing court violates Graham. On its face, this seemingly extra-life-size sentence flirts with the limits of this district’s current Graham jurisprudence, but it cannot be said to violate it. The total sentence arises from two separate criminal episodes, one netting Dortch twenty-two years and the other resulting in four forty-year sentences (two to be served consecutively); each of the individual sentences falls short of the life without parole sentence at issue in Graham. Under the cumulative sentence at issue, Dortch’s potential for gain-time — as noted by the trial, court — makes him eligible for release at age seventy-nine, which is within the outer parameters of our post-Graham cases. See Smith v. State, 93 So.3d 371 (Fla. 1st DCA 2012) (eighty-year consecutive sentence upheld because Smith would be scheduled for release at age eighty-one with gain-time); cf. Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012) (aggregate eighty-year sentence violates Graham where offender would be scheduled for release at eighty-five with gain-time). Affirmance on the Graham issue would seem to apply here.

That said, it is an understatement to note the fluidity of how the judiciary views Graham. Resentencing of juvenile offenders post-Graham has followed many incongruous paths. One simply says Graham does not apply to a term-of-years sentence, no matter how lengthy; another estimates the juvenile offender’s expected life span and upholds a term-of-years sentence that — with credits for good-time and other actuarial and demographic adjustments— should afford release before the then-to-be-geriatric prisoner’s statistically-determined death date (both approaches emphasizing the goals of deterrence, retribution and protecting society from recidivism). Yet another reads Graham as constitutionally requiring that states institute or restore parole and provide rehabilitative treatment services to repristinate juvenile offenders — -while they are still young, but imprisoned — to hasten their earlier release from prison; a related, but less ambitious, path is to provide for parole, but only after a minimum number of years of incarceration (both approaches emphasizing the goal of rehabilitation). These reactions to Graham — along with others — are understandable given the lack of guidance on what the Court meant when it said juvenile offenders must be given some “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” 560 U.S. at 75, 130 S.Ct. 2011 but concurrently said that the Eighth Amendment “does not require the State to release that offender during his natural life,” id., only that a juvenile sentenced to life must have “some realistic opportunity to obtain release before the end of that term.” Id. at 82, 130 S.Ct. 2011. How is the judiciary to reconcile the Court’s Rashomonic language, when four different readers can see four (or more) different interpretive paths? Our Court has chosen a path, one that would necessitate affirmance on the Graham issue in this case; but, I am doubtful this path will be without significant detours and roundabouts in the years to come.

      . He also contends that scoring prior juvenile adjudications as if they were adult convictions violates due process and the requirements of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and constitutes cruel and unusual punishment; and that Dortch’s aggregate sentence denied him any meaningful opportunity for release, contrary to Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

      . Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

      . The State said “Since the defendant had not filed a motion, we went ahead and did that just to bring it in front of the Court.”

      . See generally Krisztina Schlessel, Graham's Applicability to Term-of-Years Sentences and Mandate to Provide A “Meaningful Opportunity" for Release, 40 Fla. St. U. L. Rev. 1027, 1028 (2013) (providing overview of cases interpreting Graham's application to term-of-years sentences), and Therese A. Savona, The Growing Pains of Graham v. Florida: Deciphering Whether Lengthy Tenn-of-Years Sentences for Juvenile Defendants Can Equate to

        the Unconstitutional Sentence of Life Without the Possibility of Parole, 25 St. Thomas L. Rev. 182, 199 (2013) (surveying Florida and California appellate decisions post-Graham that can be "conflicting and curious”).

      . See, e.g., Smith v. State, 93 So.3d 371, 378 (Fla. 1st DCA 2012) (Padovano, J., concurring) (suggesting that section 947.16(6), Florida Statutes, should be deemed unconstitutional “to the extent that it removes parole eligibility for juvenile offenders who have been sentenced as adults.”); Gridine v. State, 89 So.3d 909, 911 (Fla. 1st DCA 2011) (Wolf, J., dissenting) (noting the "only logical way to address the concerns” in Graham ... is to provide parole opportunities for juveniles. The Legislature, not the judiciary, is empowered to create a provision for parole.”) (citation omitted), review granted, 103 So.3d 139 (Fla.2012).

      . See generally Sally Terry Green, Realistic Opportunity for Release Equals Rehabilitation: How the States Must Provide Meaningful Opportunity for Release, 16 Berkeley J. Crim. L. 1, 32 (2011) (stating that “Graham requires that a release process operate during the incarceration of the juvenile life sentence offender” such that "reinstitution of a parole-like system that focuses on rehabilitative reform purposes is paramount to the States’ compliance with Graham."); Marsha L. Levick & Robert G. Schwartz, Practical Implications of Miller and Jackson: Obtaining Relief in Court and Before the Parole Board, 31 Law & Ineq. 369, 393 (2013) (discussing parole systems for juveniles and the lack of available prison programming for juvenile offenders who enter “prison at a tumultuous developmental time in their lives.”).

        .See, e.g., Barry C. Feld, Adolescent Criminal Responsibility, Proportionality, and Sentencing Policy: Roper, Graham, Miller/Jackson, and the Youth Discount, 31 Law & Ineq. 263, 264 & 322-32 (2013) (proposing a categorical "Youth Discount” that provides a "proportional reduction of adult sentence lengths” via a "sliding scale of diminished responsibility” that "gives the largest sentence reductions to the youngest, least mature offenders.”).


text:
    Gean DANIEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2104.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   ROTHENBERG, J.

The defendant, Gean Daniel, appeals his convictions for armed burglary of a dwelling and grand theft. Although the defendant raises two issues on appeal, only one merits discussion. The defendant contends the trial court erred in failing to instruct the jury on trespass, a permissive lesser-included offense of armed burglary of a dwelling, and that the error constitutes per se reversible error. Although the State confesses error as to this point and agrees that the defendant is entitled to a new trial, we reject the State’s confession of reversible error and affirm because the error was harmless beyond a reasonable doubt.

THE CHARGES

The defendant was charged with and convicted of armed burglary of a dwelling and grand theft. The information alleges the following:

Count 1

GEAN DANIEL, on or about April 09, 2010, in the County and State aforesaid, did unlawfully enter or remain in a structure, to wit: a dwelling located at [the address of the victim’s dwelling], Miami-Dade County, Florida, the property of [the victim], without the consent of [the victim] as owner or custodian, the same being unoccupied the defendant having an intent to commit an offense therein, to wit: THEFT, and during the commission of the offense, said defendant possessed a firearm or destructive device, in violation of s. 810.02(2)(b) and s. 775.087, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

Count 2

And the aforesaid Assistant State Attorney, under oath, further information makes GEAN DANIEL, on or about April 09, 2010, in the County and State aforesaid, did unlawfully and knowingly obtain or use, or endeavor to obtain or use, GUN and/or ELECTRONICS valued at three hundred dollars ($800.00) or more, but less than five thousand dollars ($5,000.00) the property of [the victim], as owner or custodian, with the intent to either temporarily or permanently deprive said owner or custodian of a right to the property or a benefit therefrom, or appropriate the property to said defendant’s own use or to the use of a person not entitled thereto, in violation of s. 812.014(2)(c), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

FAILURE TO GIVE A TRESPASS INSTRUCTION

The defendant claims that the trial court’s failure to instruct the jury on trespass, a permissive lesser-included offense of burglary, as requested by defense counsel, constitutes reversible error. Lesser-included offenses fall within two categories: (1) category one necessary lesser-included offenses; and (2) category two permissive lesser-included offenses. See State v. Wimberly, 498 So.2d 929, 930 (Fla.1986); Wright v. State, 983 So.2d 6, 8 (Fla. 1st DCA 2007). Whereas the trial court must instruct the jury on category one necessary lesser-included offenses, see State v. Montgomery, 39 So.3d 252, 259 (Fla.2010), the trial court is only required to instruct the jury on a category two permissive lesser-included offense if: (1) the charging document alleges all of the statutory elements of the permissive lesser-included offense; and (2) there is some evidence adduced at trial which establishes all of these elements. Khianthalat v. State, 974 So.2d 359, 361 (Fla.2008).

It is undisputed that the information charging the defendant with armed burglary of a dwelling in the instant case contains all of the necessary elements of trespass and that there was evidence introduced at trial to support both the charged offense and the lesser-included offense of trespass. Thus, we agree with the defense and the State that the trial court erred by failing to instruct the jury on the requested lesser-included offense of trespass. See Bordes v. State, 34 So.3d 215, 217 (Fla. 4th DCA 2010) (finding error when the trial court failed to instruct the jury on trespass as a lesser-included offense of burglary of a dwelling). However, we disagree that the error constitutes per se reversible error.

Unlike the failure to instruct the jury on a category one necessary lesser-included offense, which constitutes per se reversible error requiring a new trial, the failure to instruct the jury on a category two permissive lesser-included offense is subject to a harmless error analysis if it is at least two steps removed from the charged offense. In State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), the Florida Supreme Court held:

Thus, to the extent that the broad language employed in Lomax intimates that the harmless error doctrine cannot be invoked whenever there has been a failure to instruct on any lesser-included offense, it is disapproved. Only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible. Where the omitted instruction relates to an offense two or more steps removed, DeLaine continues to have vitality, and reviewing courts may properly find such error to be harmless.

Thus, the analysis this Court must perform in this case on appeal is whether the failure to instruct the jury on the category two permissive lesser-included offense of trespass was harmless error. The answer to that question is first dependent on whether trespass is one step removed or more than one step removed from the offense charged and found by the jury. Abreau, 363 So.2d at 1064; see also Pena v. State, 901 So.2d 781, 787 (Fla.2005) (“[Wjhen the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.”).

In Pena, the Florida Supreme Court explained the reasoning of this “two-steps-removed” requirement.

[T]he significance of the two-steps-removed requirement is more than merely a matter of number of degree. A jury must be given a faff opportunity to exercise its inherent “pardon” power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.

Id. at 787.

In the instant case, the jury found the defendant guilty of armed burglary of a dwelling, a first degree felony punishable by life imprisonment. The jury was also instructed on and provided with the option of finding that the defendant committed the following lesser-included offenses of an armed burglary of a dwelling: (1) unarmed burglary of a dwelling; (2) burglary of a structure; or (3) trespass.

An unarmed burglary of a dwelling is a lesser-included offense of armed burglary of a dwelling and is a second-degree felony. See Reddick v. State, 394 So.2d 417, 417-18 (Fla.1981) (noting that robbery with a weapon is a lesser-included offense of robbery with a deadly weapon). The jury was also instructed on and given the option of finding the defendant guilty of burglary to a structure, a third-degree felony and a lesser-included offense of armed burglary of a dwelling. Burglary to a structure is a lesser-included offense that is two degrees removed from the offense of armed burglary of a dwelling. Trespass, a misdemeanor, is at least three degrees removed from armed burglary of a dwelling. Because the trial court instructed the jury on at least one lesser-included offense that the jury rejected, and trespass is even further removed than the lesser-included offenses for which the trial court gave instructions and the jury rejected, the failure to instruct the jury on trespass is subject to a harmless error analysis. See McKiver v. State, 55 So.3d 646, 650 (Fla. 1st DCA 2011) (holding that simple burglary is a necessary lesser-included offense of burglary of a dwelling that is one step removed, whereas trespass is a permissive lesser-included offense of burglary of a dwelling that is two steps removed).

In applying the harmless error analysis in this case, we find that the failure to instruct the jury on trespass, a three-steps-removed permissive lesser-included offense of armed burglary of a dwelling, is harmless beyond a reasonable doubt. First, the crime of burglary differs from the crime of trespass in that the crime of trespass requires only the unlawful entry by the defendant (in this case, a structure), whereas the crime of burglary requires the unlawful entry or remaining in the structure and the additional element of the defendant’s intent to commit a crime therein. Compare § 810.02, Fla. Stat. (2010), with § 810.08, Fla. Stat. (2010). Here, the State charged the defendant with entering or remaining in the victim’s dwelling while in possession of a firearm and with the intent to commit a theft therein. The State also charged the defendant with committing the offense of grand theft by taking the victim’s property, which was valued at $300 or more.

The evidence at trial established that the defendant broke into the victim’s home and took electronics and a firearm. Although the jury was given the option of finding the defendant guilty of the lesser-included offenses of armed burglary of a dwelling and/or a lesser-included offense of grand theft, or finding him not guilty of either offense, they returned a verdict of guilt as to the highest offenses charged. Importantly, the difference between burglary and trespass is the intent to commit a crime during the commission of the unlawful entry into the structure.

Because the jury found that the defendant actually committed the offense of grand theft, they also necessarily found that he committed a burglary, not a trespass. Further, the jury clearly did not exercise its jury pardon power because it found the defendant guilty of armed burglary of a dwelling rather than guilty of the lesser-included offenses of burglary of a dwelling or burglary of a structure, and grand theft in the third degree rather than either first-degree or second-degree petit theft, which they were given the option to do. We therefore find that the failure to instruct the jury on the permissive, lesser-included, three-steps-removed offense of trespass in this case was harmless beyond a reasonable doubt.

Affirmed.

      . The defendant also claims he is entitled to a new trial based on a comment made by the State in closing arguments. We find that the comment, if error, was harmless beyond a reasonable doubt and decline to specifically address it.

        . Lomax v. State, 345 So.2d 719 (Fla. 1977).

      . DeLaine v. State, 262 So.2d 655 (Fla. 1972).

      . Arguably simple trespass is even more than three steps removed from armed burglary of a dwelling, but we need not determine how many steps removed it is above and beyond the requisite two steps removed required to perform a harmless error analysis because it is clearly greater than one step removed from armed burglary of a dwelling.


text:
    Gerard P. FRANCOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2788.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.

      Entin & Della Fera, P.A., and Alvin E. Entin, Fort Lauderdale, and Jorge J. Garcia, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.
   ROTHENBERG, J.

Gerard P. Francois (“the defendant”) appeals his convictions for aggravated battery and misdemeanor battery based on the trial court’s denial of his ore tenus motions for a continuance and for substitution of private counsel for his court-appointed counsel after the jury had been selected and sworn, and he also asks us to find ineffective assistance of his court-appointed counsel on the face of the record. Because we find that the trial court did not abuse its discretion by denying the motion for a continuance to obtain substitute counsel and that the defendant’s court-appointed counsel was not clearly incompetent based on the face of the appellate record, we affirm.

In 2010, the defendant was charged with attempted second-degree murder, burglary with an assault or battery, aggravated assault with a firearm, and misdemeanor battery. Shortly thereafter, an attorney from the office of regional counsel, Arthur McNeil, was appointed to represent the defendant.

After several continuances, the defendant filed a demand for speedy trial on August 8, 2012. The record reflects that on. August 17, 2012, the trial court addressed the defendant’s demand for speedy trial, colloquied the defendant, who was present in court, and, with the defendant present, set the case for trial for the following Monday, August 20, 2012. On Monday, August 20, a jury was selected and sworn, and the case was adjourned until the following day for opening statements and presentation of the evidence. When the trial reconvened the following day, however, the defendant’s court-appointed counsel, Mr. McNeil, informed the trial court that the defendant wanted to continue the case. Mr. McNeil explained that the defendant had relayed to him that the defendant did not feel ready for trial, and that the defendant’s family had spoken to a private attorney about representing the defendant. Mr. McNeil told the trial court that he believed the private attorney had agreed to represent the defendant, although that attorney had not yet met with the defendant.

In addressing the defendant’s untimely motion for a continuance, the trial court noted that the defendant had filed a demand for speedy trial; the trial court had asked the defendant the preceding Friday if he was ready for trial and whether he was satisfied with his attorney; the trial had already commenced; and when the jury was selected and sworn the preceding day, the defendant had raised no concerns and had not requested a continuance. The trial court explained that it was “a little late” for a continuance since the jury had been selected and sworn, but nonetheless asked the defendant why he believed he needed a new attorney. The defendant responded by stating that Mr. McNeil had not deposed all of the police officers involved in the case; Mr. McNeil did not schedule a Franks hearing or move for pretrial prosecutorial immunity based on a stand-your-ground defense, despite the defendant’s request to do so; and the defendant had written the prior judge explaining his dissatisfaction with Mr. McNeil.

The trial court noted, and the record reflects, that no motion or letter from the defendant had been filed. Upon inquiry, however, the defendant produced a copy of the letter he claimed he had sent to the prior judge. In this letter, the defendant stated he wanted a new lawyer based on Mr. McNeil’s attitude towards him during a telephone call.

In addressing the defendant’s concerns, the trial court asked Mr. McNeil why he had not deposed all of the officers and filed the requested motions. Mr. McNeil explained that he had deposed all of the witnesses except some officers who provided their reports, but had no substantial testimony to offer. The trial court told the defendant that in the unlikely event any of these officers were called to testify, it would allow Mr. McNeil to speak with the officer before allowing the testimony.

With regard to Mr. McNeil’s failure to request a Franks hearing, the trial court asked the defendant if he wanted his lawyer to file a motion to suppress. The defendant replied that he did not want the evidence suppressed, he wanted a Franks hearing to contest the search. Mr. McNeil, however, explained that the defendant signed a form consenting to the search, that in his sworn taped statement the defendant admitted that he signed the consent to search form freely and voluntarily, and that no one threatened or forced him to sign it. Additionally, the defendant contacted the police, provided his location, and was attempting to fully cooperate with their investigation when he consented to the search. Thus, Mr. McNeil had no good faith basis to request a Franks hearing.

The defendant’s complaint regarding Mr. McNeil’s failure to litigate a stand-your-ground pretrial motion fared no better after the defendant told the trial court that he wanted to have a stand-your-ground hearing “because it wasn’t — it wasn’t self-defense at all, it was an accident. I told Mr. McNeil that.” When the trial court explained that if the defendant was contending the shooting was an accident, stand-your-ground would not apply, Mr. McNeil informed the trial court that he had explained the same thing to the defendant when he decided not to file the motion.

After carefully considering the defendant’s stated reasons for requesting a continuance, the procedural posture of the case, and Mr. McNeil’s responses, the trial court denied the defendant’s ore tenus motion for a continuance. Because the record reflects that the trial court’s denial of the defendant’s motion for a continuance was not an arbitrary decision, but rather an exercise of the trial court’s discretion after considering, weighing, and balancing the defendant’s right to be represented by private counsel of his choosing with the proper administration of justice, we find no abuse of discretion.

A trial court is vested with broad discretion when ruling on a motion for a continuance. Holman v. State, 347 So.2d 882, 836 (Fla. 3d DCA 1977). This discretion extends to motions requesting a continuance for the purpose of allowing substitution of new counsel. See Alvarez v. State, 75 So.3d 420, 422 (Fla. 4th DCA 2011). Likely recognizing heightened incentives for criminal defendants to seek delay, Florida Rule of Criminal Procedure 3.190(f) requires a party seeking a continuance in a criminal case to show good cause for the motion and explicitly commits the decision to the trial court’s discretion. These requirements do not apply in civil cases. See Fla. R. Civ. P. 1.460. Thus, although criminal defendants have the right to a reasonable opportunity to select and to be represented by their chosen counsel, that right is not absolute, McKay v. State, 504 So.2d 1280, 1282 (Fla. 1st DCA 1986), and the trial court’s denial of a defendant’s motion for a continuance to allow for substitution of counsel of his choice is reviewed under an abuse of discretion standard. Lelieve v. State, 7 So.3d 624, 629 (Fla. 3d DCA 2009).

When the defendant requests a continuance on the eve of trial or in the middle of trial, as in this case, to allow time to retain counsel and for counsel to prepare, the trial court must balance the countervailing interests of the effective administration of the courts with the defendant’s right to private counsel of his choice. Id. Some of the factors that should be considered in striking this balance are: how long the case has been pending; the likelihood of prejudice from denial; the adequacy of the defendant’s current counsel; and the complexity of the case and time it would take for the defendant’s chosen counsel to prepare the case for trial. See McKay, 504 So.2d at 1282. However, as the United States Supreme Court noted in Wheat v. United States, the evaluation of the facts and circumstances of each case must be left primarily to the informed judgment of the trial court. 486 U.S. 153, 164, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

In McKay, the First District found that the trial court did not abuse its discretion by denying McKay’s motion for a continuance where he was represented by the public defender and an attorney he had retained appeared in court on the day of trial and requested a continuance to prepare. Likewise, in Mena v. State, 451 So.2d 1012, 1013 (Fla. 3d DCA 1984), this Court found no error in the trial court’s denial of the defendant’s motion for a continuance and to allow defense counsel to withdraw as counsel for the defendant, which was made on the day of trial. See also Hurtado v. State, 760 So.2d 279, 280 (Fla. 4th DCA 2000) (affirming the trial court’s denial of the defendant’s motion to discharge counsel made on the eve of trial and where the trial court found the motion was motivated by a desire to delay the proceedings).

In the instant case, when deciding whether to grant the defendant’s motion for a continuance in order to obtain privately retained counsel, the trial court considered and weighed the facts that the defendant had filed a demand for a speedy trial, which signifies that a defendant is ready for trial and is demanding an expedited trial date; the jury had already been selected and sworn and, therefore, trial had officially begun; the defendant had announced he was ready for trial and had not indicated any displeasure with his court-appointed counsel the previous day when the jury was being selected; the defendant raised no concerns three days before the trial began when he was collo-quied by the trial court; the defendant’s purported reasons for being dissatisfied with Mr. McNeil were largely erroneous; Mr. McNeil had expended considerable time and effort investigating and preparing the case; and the defendant’s proposed private counsel had not yet met with the defendant or been retained and was not present in court although the trial had already commenced. Based on the totality of these circumstances, we cannot say that the trial court abused its discretion by denying the defendant’s request for a continuance.

Although there is no evidence that the defendant’s request for a continuance was made in bad faith, the request for substitution was not made until after the trial, which was expedited by the defendant’s speedy trial demand, had already begun. That fact distinguishes this case from others that have found the denial of a motion to substitute counsel was an abuse of discretion. See, e.g., Alvarez, 75 So.3d 420, 421-22 (private counsel substituted prior to trial); Jackson v. State, 979 So.2d 442, 443 (Fla. 4th DCA 2008) (request for new counsel made prior to jury voir dire); Foster v. State, 704 So.2d 169,170-71 (Fla. 4th DCA 1997) (request for private counsel made before jury selection and where private counsel had already been retained and was willing to step in quickly). Once trial has begun and jeopardy has attached, a trial court will rarely abuse its discretion by denying a motion for a continuance to substitute counsel when that request had not been previously raised. This is particularly so when the defendant has taken affirmative steps to expedite the trial date and the privately retained counsel is not present before the court. We therefore find no error on this point.

Lastly, the defendant contends he received ineffective assistance of counsel. Claims of ineffective assistance of counsel are rarely appropriately addressed via direct appeal, and are only cognizable when “the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). Because the record does not establish ineffective assistance of counsel on its face, and, in fact, the defendant’s complaints thus far appear to be unjustified, we reject the argument that he is entitled to a new trial on this claim as well.

Affirmed.

      . Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). "Franks permits defendants to attack a warrant where police intentionally lie or misstate information material to the probable cause determination in the affidavit supporting the warrant in order to deceive the judge into issuing the warrant.” State v. Petroni, 123 So.3d 62, 64 (Fla. 1st DCA 2013) (citing Franks, 438 U.S. at 171-72, 98 S.Ct. 2674).


author: SUAREZ, J.

text:
    Jacqueline DUTRA, Appellant, v. Chance T. KAPLAN and Marnie Kaplan, husband and wife, Appellees.
    No. 3D13-647.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Rehearing Denied May 23, 2014.

      Stolzenberg Gelles Flynn & Arango and Cheryl Ziekler, Miami, for appellant.
    Boies, Schiller & Flexner and Bruce Alan Weil and Andrew Beyda, Miami, for appellees.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   SUAREZ, J.

Appellant Jacqueline Dutra (“Dutra”) appeals a summary final judgment entered in favor of Appellee Dr. Chance Kaplan (“Kaplan”) based upon the trial court’s finding that the statute of limitations on Dutra’s claim, filed in 2009, had expired. We reverse. The limitations period for Dutra’s breach of contract claim began to run in 2009, and not in 2004, as argued by Kaplan. Therefore, Dutra timely brought her claim.

In 2002, the parties entered into a written agreement regarding their mutual purchase of a house. The agreement contained a provision regarding the disposition of the house in the event the parties no longer desired to reside there together. In pertinent part that provision states:

... in that event, the interest of Ms. Dutra in the Property shall first be offered to Dr. Kaplan and if he shall elect to purchase Ms. Dutra’s interest then he shall repay to Ms. Dutra the monies invested by her in acquiring subject Property, over a period of not more than five (5) years interest free ...

In March 2004, the parties determined that they would no longer reside together in the house. Dutra moved out and, pursuant to the agreement, Kaplan elected to purchase Dutra’s interest in the house. A dispute then arose as to the amount Kap-lan was obligated to pay Dutra pursuant to the agreement. In April 2004, Kaplan advised Dutra that if she did not accept the amount he offered, he would not repay her any of the money she claimed was owed under the agreement. Kaplan continued to live in the house and, true to his word, made no payments under the agreement to Dutra before April 2009. In August 2009, Dutra filed this action for breach of contract and other relief.

Kaplan argued below, as he does here, that the statute of limitations began to run in April 2004, when he made clear to Dutra that he would not make payment under the agreement. Kaplan’s theory was that the five year statute of limitations for breach of contract, section 95.11(2)(b), Florida Statutes (2004), began to run on that date and, therefore, the time for Du-tra to file her breach of contract claim expired in April 2009. We do not agree.

Kaplan’s statement constituted an anticipatory breach of contract which gave rise to three options for Dutra. As was stated in Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So.2d 571 (Fla. 4th DCA 2006), when an anticipatory breach occurs, the non-breaching party has the right:

[F]irst, to rescind the contract altogether; second, to elect to treat the repudiation as a breach by bringing suit or by making some change in position; or, third, to await the time for performance of the contract and bring suit after that time has arrived.

Id. at 575, citing Williston on Contracts and Perry v. Shaw, 152 Fla. 765, 13 So.2d 811 (1943). See also, Franconia Assocs. v. U.S., 536 U.S. 129, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002) (“the promisor’s renunciation of a ‘contractual duty before the time fixed in the contract for performance is a repudiation.’ [] Such a repudiation ripens into a breach prior to the time for performance only if the promisee ‘elects to treat it as such.’ ”) and Degirmenci v. Sapphire-Fort Lauderdale, LLP, 693 F.Supp.2d 1325,1345 (S.D.Fla.2010), citing Franconia and Barbara G. Banks, supra.

In this case Dutra elected the third option. She gave Kaplan the full five years to make the payment due under the contract. When he failed to do so, Dutra’s claim for breach of contract accrued. See, § 95.031(1), Fla. Stat. (2004) (“A cause of action accrues when the last element constituting the action occurs.”). Plainly, Du-tra brought her action within five years of that breach. Thus, the trial court erred when it ruled that the statute of limitations had expired prior to the institution of this action.

Reversed and remanded for further proceedings.

      . Kaplan argued that Dutra changed her position by ceasing to make mortgage payments on- the property and by failing to pay taxes and other costs related to the property. We reject that argument because the agreement does not obligate Dutra to make such payments after ceasing to reside in the property.


text:
    Karlo M. MOISE and Guerda Moise, Appellants, v. JP MORGAN CHASE BANK NATIONAL ASSOCIATION, Appellee.
    No. 3D13-1467.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    The Ticktin Law Group and Peter Tick-tin and Josh Bleil and Kendrick Almaguer (Deerfield Beach), for appellants.
    McGlinchey Stafford and William L. Grimsley (Jacksonville), for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Lopez v. U.S. Bank N.A., 116 So.Sd 640 (Fla. 3d DCA 2013); The Tower Grp., Inc. v. Thyssen Elevator Co., 823 So.2d 264 (Fla. 3d DCA 2002); Parrish v. Dougherty, 505 So.2d 646 (Fla. 1st DCA 1987).


text:
    Ariel CUBELO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1625.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   ON REMAND

ROTHENBERG, J.

Upon remand by the Florida Supreme Court for reconsideration based upon its decision in Haygood v. State, 109 So.3d 735 (Fla.2013), we reverse Ariel Cubelo’s conviction and sentence for second-degree murder with a weapon (a knife) and remand for a new trial.

In State v. Montgomery, 39 So.3d 252, 258 (Fla.2010), the Florida Supreme Court held that use of the standard jury instruction for manslaughter by act was erroneous and that giving the erroneous instruction was fundamental error where Montgomery was convicted of second-degree murder, which is only one step removed from manslaughter. In Haygood, the Florida Supreme Court addressed whether the trial court’s fundamental error in giving the erroneous manslaughter by act jury instruction was cured by also giving the jury an instruction on manslaughter by culpable negligence. The Court concluded that the erroneous manslaughter by act instruction was not cured by also giving the jury a manslaughter by culpable negligence instruction where the evidence supports a finding of manslaughter by act, the evidence does not support a finding of manslaughter by culpable negligence, and the defendant is convicted of second-degree murder. Haygood, 109 So.3d at 737.

Upon review, because Cubelo’s jury was provided with the same erroneous manslaughter by act instruction the Florida Supreme Court addressed in Montgomery and Haygood, the evidence presented supports manslaughter by act and does not support manslaughter by culpable negligence, and Cúbelo was convicted of second-degree murder, the error was fundamental error requiring a reversal. Accordingly, we reverse Cubelo’s conviction and sentence for second-degree murder and remand for a new trial.

Reversed and remanded.


author: EMAS, J.

text:
    Jack JUBRAN, Appellant, v. BAY COURT TOWERS CONDOMINIUM, INC., et al., Appellees.
    No. 3D12-2503.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Charles L. Truncale (Jacksonville), for appellant.
    Wicker Smith O’Hara McCoy & Ford, P.A. and William F. Fink and David R. Cook; White & Case, LLP and Raoul G. Cantero and Maria J. Beguiristain and Michelle Holmes Johnson, for appellees.
    Before SUAREZ, SALTER and EMAS, JJ.
   EMAS, J.

Appellant Jack Jubran appeals the trial court’s order granting Appellees’ motion and dismissing Appellant’s complaint with prejudice as a sanction for his failure to comply with numerous court orders over the course of the six years during which this action was pending below.

Jubran was represented by four different attorneys at various stages of the litigation, the last of which had withdrawn by the time the hearing was held on Appel-lees’ motion to dismiss. Jubran represented himself for significant periods of time when he was “between counsel” and proceeded pro se at the hearing.

Following the hearing on the motion, the court announced its findings on the record and rendered an order which thoughtfully analyzed and applied the requisite factors under Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). The record contains competent substantial evidence to support the trial court’s order of dismissal, and we find no abuse of discretion.

Affirmed.


text:
    Dianne CORSBIE, individually and as personal representative of Estate of Percy Corsbie, deceased, Appellant, v. Keith CORSBIE, Appellee.
    No. 3D12-3326.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Arthur J. Morburger, for appellant.
    Robert P. Kelly and Roger G. Pickles (Hollywood), for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

We agree with the appellant that it was error for the trial court to have denied the motion to amend with prejudice. An amendment to the complaint identifying the plaintiff as the personal representative and limiting the claims to conversion would relate back and should have been allowed. See Eisen v. Philip Morris USA, Inc. 126 So.3d 323 (Fla. 3d DCA 2013). We affirm the remainder of the trial court’s order denying the motion to amend with prejudice.

Reversed in part and remanded for further proceedings.


author: SCALES, J.

text:
    Eileen DIAZ, Appellant, v. HOME DEPOT USA, INC., etc., et al., Appellees.
    No. 3D13-1024.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Wasson & Associates, Chartered, and Erin E. Pogue; Anidjar & Levine, P.A. (Ft. Lauderdale), for appellant.
    Hightower, Stratton, Wilhelm, Novigrod & Kantor, and Nicholas D. Mermiges; Cole, Scott & Kissane, P.A., and Scott Cole and Kathryn L. Smith, for appellees.
    Before WELLS, EMAS and SCALES, JJ.
   SCALES, J.

Appellant, Eileen Diaz, appeals from an order dismissing her case with prejudice on the basis of fraud on the court.

For procedural reasons, we remand for an evidentiary hearing. See Medina v. Fla. E. Coast Ry., L.L.C., 866 So.2d 89, 90 (Fla. 3d DCA 2004) (stating dismissal as a sanction should be employed only after a plaintiff has been given fair notice and an opportunity to be heard and reversing where the trial court did not grant the plaintiffs request for an evidentiary hearing); Sklandis v. Walgreen Co., 832 So.2d 942, 942 (Fla. 2d DCA 2002) (“The plaintiff is entitled to fair notice and an opportunity to be heard, prior to any order being entered which would dismiss the case on the basis of fraud and perjury.”). We express no opinion on the merits of the motion or any sanction which ultimately may be imposed.

Reversed and remanded.


text:
    H.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1243.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.

      Before EMAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Hunter v. State, 660 So.2d 244, 249 (Fla.1995); Hernandez v. State, 784 So.2d 1124, 1126 (Fla. 3d DCA 1999); State v. Bell, 382 So.2d 119, 119-20 (Fla. 3d DCA 1980); Rodriguez v. State, 948 So.2d 912, 914 (Fla. 4th DCA 2007).


author: CASANUEVA, Judge.

text:
    Luca BARICCHI, Appellant, v. Loraine BARRY, Appellee.
    No. 2D12-6381.
    District Court of Appeal of Florida, Second District.
    April 23, 2014.
    Virginia R. Vetter, Tampa, for Appellant.
    Michelle Ralat Brinner of Older & Lun-dy, Tampa, for Appellee.
   CASANUEVA, Judge.

Luca Baricchi appeals the final judgment dissolving his marriage to Loraine Barry. We find merit in his first contention that the trial court erred in proceeding on Ms. Barry’s amended petition and reverse.

BACKGROUND

Ms. Barry instituted this dissolution proceeding in late 2011, alleging that Mr. Baricchi had left the marital home earlier in the year and that his present whereabouts, although unknown, were believed to be in California. Subsequent events suggested that he was located in Italy and that Ms. Barry was aware of his location.

The initial petition, in ten numbered paragraphs, sought exclusive use and possession of the marital condominium in Tampa and exclusive use and possession of other Tampa real property. Further, the initial petition listed a house in Italy owned jointly and two apartments in Italy in Mr. Baricchi’s name that had been recently sold. The initial petition requested that the proceeds of the sale of the two apartments be divided between the parties, but there was no prayer for relief regarding the jointly-owned house in Italy. Otherwise, this petition sought generally equitable distribution of marital assets and debts without mentioning other items of personal property, whether tangible or intangible, or the couple’s business, a dance studio owned with a third party.

Following publication in a penny saver’s-type weekly and the execution of an affidavit of diligent search, Ms. Barry obtained a clerk’s default against Mr. Bariechi. Notice of the default final hearing was mailed by Ms. Barry or her counsel to Mr. Baric-chi in care of his counsel in Italy.

Following the entry of the default, Ms. Barry filed an amended petition for dissolution of marriage that differed materially from her initial pleading. The amended petition now alleged fourteen numbered paragraphs and a prayer for relief that specifically sought for the first time the distribution of a promissory note and title to the two Tampa properties rather than just exclusive use and possession of them. The amended petition also sought an interest in another property in Italy that Mr. Bariechi had allegedly bought with marital funds and, as her sole property, the parties’ six motorcycles and their Mercedes automobile.

ANALYSIS

Mr. Bariechi asserts that he was denied due process by the trial court’s procedure permitting Ms. Barry to proceed to final judgment on an amended petition for dissolution • of marriage that had not been served upon him. We agree.

The record shows, as set forth above, that the amended petition asserted new claims and requested relief that was not specifically identified in the initial pleading. This is critical because a default only admits the well-pleaded facts and acquiesces only to relief specifically prayed for. In Ruble v. Ruble, 884 So.2d 150, 152 (Fla. 2d DCA 2004), this court held that it was error for the trial court to grant to the father in the final judgment permanent custody of the parties’ minor son where his petition had never requested that relief, despite the fact that the father had moved to have custody determined by mediation and had also moved for temporary custody during the proceedings; but the father had never amended his petition to request permanent custody. See also Freeman v. Freeman, 447 So.2d 968, 965 (Fla. 1st DCA 1984) (holding that the issue of child custody could not be tried by express or implied consent where the party seeking custody had introduced a new cause of action without notice to and service upon the opposing party). “[A] default is not designed to give a strategic advantage to the plaintiff so that it may obtain a judgment without dealing with the defendant’s challenges and defenses.” Makes & Models Magazine, Inc. v. Web Offset Printing Co., 13 So.3d 178, 181 (Fla. 2d DCA 2009) (citing Ole, Inc. v. Yariv, 566 So.2d 812, 814-15 (Fla. 3d DCA 1990)). Operationally, without service of the amended petition, that is what transpired in this instance. Ms. Barry was afforded a strategic advantage to which she was not entitled.

This court has addressed, in Rogers v. Rogers, 905 So.2d 1050 (Fla. 2d DCA 2005), a property award without a prior, triggering pleading allegation or prayer for relief requesting it. There the wife’s petition requested that the husband be granted exclusive use and possession of the marital residence until a certain date and that he pay her directly a certain sum as her share of the equity in the residence. Alternatively, she requested that he vacate the marital residence on that same date, that the residence be placed on the market, and that the parties equally divide the proceeds upon its sale. The husband defaulted, and the final judgment of dissolution awarded the wife the entire equity in the marital residence.

Writing for this court in Rogers, Judge Whatley observed that where a default is entered against a party, its reach is limited to “ ‘admitting] the well-pleaded facts’ ” and “ ‘acquiescing] in the relief specifically prayed for.’ ” Id. at 1051 (quoting Longo v. Longo, 576 So.2d 402, 403 (Fla. 2d DCA 1991)). Thus, it was improper to award relief not requested in the petition. See also Amick v. Amick, 854 So.2d 811, 811 (Fla. 2d DCA 2003) (holding it was error in a default final judgment of dissolution to award to the wife a mobile home, that the wife’s petition for dissolution had asserted was in the husband’s possession and which petition had specifically requested that the mobile home be awarded to the husband).

We find additional guidance and support for our conclusion in this court’s opinion in Miceli v. Miceli, 489 So;2d 1235 (Fla. 2d DCA 1986). There the husband had instituted dissolution proceedings and caused them to be served upon his spouse in Illinois. His petition sought dissolution of marriage only. Because his wife failed to answer the petition, a default was entered against her. Thereafter, the husband sought leave to file an amended petition to assert adjudication of property, support, and alimony rights. Leave to amend was granted but before the wife’s time to answer the amended petition had expired, the husband had not only obtained a default but also had presented evidence to the court and obtained a final judgment affording the relief requested in the amended petition. Id. at 1236. In reversing, this court held that the amended petition required renewed service of process because it asserted new and additional claims. Without service, the trial court was without jurisdiction to enter a valid final judgment. Id.

The decisional law is consistent with the requirements of Florida’s procedural rules. Florida Family Law Rule of Procedure 12.080(c)(1) states that service of process is not required on a party against whom a default has been entered except where the subsequent pleading asserts “new or additional claims.” Ms. Barry’s amended petition did assert new or additional claims.

CONCLUSION

Because the circumstances of this case require that Ms. Barry’s amended petition be served on Mr. Baricchi, and it was not, the trial court erred in entering final judgment. The amended petition is now the operative pleading, and it must be served before further proceedings can occur. We do not disturb the trial court’s order dissolving the marriage of the parties. Neither party challenged that determination in the appeal.

Final judgment reversed and cause remanded.

ALTENBERND and BLACK, JJ., Concur.

      . This disposition moots Mr. Baricchi’s second contention that the trial court erred in distributing the equity of property located in Italy.

      . We find it interesting to note, although not dispositive of the issue presently before us, that following default Ms. Barry was able to identify specific marital properties in Italy and where Mr. Bariechi might be located in Italy rather than, as she previously alleged as his likely location, in California. Like Columbus, Ms. Barry sought in the West riches held in an eastern land.


text:
    Tyron EASTWOOD and Rebecca Eastwood v. NIBLETT’S BLUFF PARK AUTHORITY, et al.
    No. 2013-CC-2408.
    Supreme Court of Louisiana.
    April 17, 2014.
   PER CURIAM.

|, Granted. The mere fact that a public entity charges a minimal fee for use of its facilities does not mean the premises were “used principally for a commercial, recreational enterprise for profit” for purposes of the exception to immunity set forth in La. R.S. 9:2791(B). See Benoit v. City of Lake Charles, 05-89 (La.App. 3 Cir. 7/20/05), 907 So.2d 931. The undisputed evidence in the record establishes the majority of the park’s funding came from local property taxes. Therefore, the district court erred in denying defendants’ motion for summary judgment on the ground there were questions of fact as to whether the park was operated as a commercial enterprise.

Accordingly, the writ is granted. The judgment of the district court is reversed, and summary judgment is granted in favor of defendants.

      . The district court also suggested there might be questions of fact as to whether defendants' actions amounted to "deliberate and willful or malicious injury” for purposes of La. R.S. 9:2791(B)(2). Viewing the facts in the light most favorable to plaintiffs, we find defendants’ actions might at most constitute ordinary negligence. However, defendants' actions were clearly not grossly negligent, nor did defendants act with intent to cause injury or with indifference to the consequences of their actions. See DeLaFosse v. Village of Pine Prairie, 08-0693, p. 5 (La.App. 3 Cir. 12/10/08), 998 So.2d 1248, 1251, writ denied, 09-0074 (La.2/4/09), 999 So.2d 766.


text:
    In re Kimberly Marie RICHARDSON.
    No. 2014-B-0621.
    Supreme Court of Louisiana.
    April 25, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

LThe instant disciplinary proceeding arises from a motion and rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kimberly Marie Richardson, for her alleged failure to comply with the conditions of probation imposed in In re: Richardson, 12-1213 (La.6/15/12), 90 So.3d 1032 (“Richardson I ”).

UNDERLYING FACTS AND PROCEDURAL HISTORY

The record in Richardson I demonstrated that respondent signed the name of another attorney as notary on two affidavits. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, proposing that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a five-year period of probation to coincide with a recovery agreement with the Lawyers Assistance Program (“LAP”) because her misconduct was precipitated in large measure by the alcoholism from which she suffers. On June 15, 2012, this court accepted the petition for consent discipline in Richardson I. The court’s order stated in pertinent part as follows:

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Kimberly Marie Richardson, Louisiana Bar Roll number 23552, 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 and that respondent shall be placed on probation for a period of five years, subject to the conditions set forth in the petition for consent discipline. _[gAny failure of respondent to comply with the conditions of probation may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. [Emphasis added.]

Following the court’s ruling, respondent entered into a probation agreement providing that the period of probation would commence on the effective date of her LAP agreement, which was dated September 27, 2012. Upon respondent’s non-compliance with her LAP agreement in May 2013, the ODC filed a motion and rule to revoke her probation. However, the disciplinary board dismissed the motion, upon the ODC’s request, when respondent signed a new probation agreement and a new LAP agreement in December 2013.

DISCIPLINARY PROCEEDINGS

Motion and Rule to Revoke Probation

On February 20, 2014, the ODC filed the instant motion and rule to revoke respondent’s probation, alleging that she had failed to comply with the conditions of her probation in Richardson I. Essentially, the ODC alleged that respondent tested positive for alcohol use on January 15, 2014 and was, consequently, not in compliance with her LAP agreement. Accordingly, the ODC prayed for revocation of respondent’s probation and the imposition of the previously deferred one year and one day suspension.

Respondent did not file an answer to the motion and rule to revoke probation.

Hearing on Revocation of Probation

This matter proceeded to a hearing before an adjudicative panel of the disciplinary board on March 13, 2014. The ODC called two witnesses to testify before the board panel: Buddy Stockwell, LAP’S executive director, and Michael |3Wilson, the ODC Deputy Disciplinary Counsel who oversees probation monitoring.

Mr. Stockwell testified that, under respondent’s first LAP agreement, she missed 94 check-ins and four drug screens. Then in May 2013, she admitted to consuming alcohol. He was able to find a free inpatient treatment program for respondent, but she did not wish to stay in the treatment program and consumed alcohol while there, resulting in her expulsion. Respondent entered another free inpatient treatment program but did not complete same and did not have the money for an intensive outpatient program. As such, Mr. Stockwell gave her one more chance with a new LAP agreement, following which respondent missed all of her scheduled check-ins and drug screens until she finally admitted to consuming alcohol on February 4, 2014. Mr. Stockwell stated that, until respondent completes inpatient treatment, she will not be allowed back into the LAP program.

Mr. Wilson testified that respondent is not in compliance with her probation agreement by virtue of her failure to comply with her LAP agreement.

Disciplinary Board Recommendation

On March 24, 2014, the disciplinary board filed its report with this court, recommending that the ODC’s motion to revoke probation be granted.

The board found the testimony of Mr. Stockwell and Mr. Wilson to be credible. The board further found that the ODC’s additional evidence was sufficient to prove respondent was not in compliance with her LAP agreement or her probation agreement. Therefore, the board determined respondent has failed to comply with the court’s order in Richardson I.

Based on the above findings, a majority of the board recommended that the ODC’s motion to revoke respondent’s probation be granted and that the one year and one day suspension imposed in Richardson I be made executory. One board Rmember dissented and indicated that he would afford respondent another chance to complete an inpatient treatment program before her probation is revoked.

DISCUSSION

A review of the record reveals that respondent is not in compliance with her LAP agreement. The record further reveals that this is the second instance of non-compliance since respondent was ordered to participate in LAP in Richardson I. She has been given ample opportunity to address her alcoholism and receive treatment while still maintaining her law license, and she has continuously failed to comply. To protect the public, we find it is necessary to revoke her probation and impose the previously deferred suspension.

Accordingly, we will accept the disciplinary board’s recommendation and revoke respondent’s probation at this time, making the deferred one year and one day suspension immediately executory.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously deferred one year and one day suspension imposed in In re: Richardson, 12-1213 (La.6/15/12), 90 So.3d 1032, is hereby made immediately executory. All costs and expenses in the matter are assessed against respondent, Kimberly Marie Richardson, Louisiana Bar Roll number 23552, 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:
    CITY OF NEW ORLEANS, et al. v. Kevin M. DUPART. Kevin M. Dupart v. City of New Orleans, et al. City of New Orleans, et al. v. Kevin M. Dupart.
    No. 2014-C-617.
    Supreme Court of Louisiana.
    May 2, 2014.
   PER CURIAM.

| ¶ This civil writ calls into question the sufficiency of the notice sent in a code enforcement proceeding brought by the City of New Orleans (City) against Kevin M. Dupart, as owner of property located in New Orleans, Louisiana. Finding the City substantially complied with the notice requirements at issue, we grant this writ to reverse the court of appeal, reinstate the trial court’s judgment, and remand to the court of appeal to address defendant’s remaining assignments of error.

After noting violations of the unoccupied property standards code then located in Chapter 28 of the New Orleans Code of Ordinances (City Code), the City scheduled an administrative hearing and sent a Notice of Hearing to Dupart 12via certified mail. At the hearing, the Administrative Hearing Officer (AHO) determined the condition of the property was in violation of the City Code, but granted Dupart an extension of two months to demonstrate substantial work in progress so as to suspend or rescind the fines assessed against him.' The AHO again determined the property was in violation of the City Code at the second hearing, but further granted Dupart another two-month extension. Du-part failed to appear for the third hearing where the AHO determined the property was blighted and a public nuisance. The property was later seized and sold at a sheriffs sale, but before the purchase price was paid and the deed issued, Dupart filed a petition to annul the sale and administrative judgment, for temporary restraining order, for preliminary and permanent injunction, and for damages, seeking to enjoin the completion of the sale and delivery of the deed.

The trial court granted the temporary restraining order, and at the preliminary injunction hearing, Dupart argued the administrative judgment was null and void for defects patent on the face of the proceedings, specifically the Notice of Hearing did not comply with City Code Sec. 28-39(d), which provides: “The notice shall state that the owner or alleged violator shall have seven days from the postmark date to respond in writing to request an extension of time prior to an administrative enforcement hearing to bring the unoccupied property within compliance with the Code.”

The trial court denied Dupart’s motion reasoning Dupart had been granted two extensions of time to bring the property into compliance and therefore the City substantially complied with the law, Du-part was proeedurally noticed regarding the condition of his property, he failed to remedy the defects, and he was afforded reasonable opportunities to be heard. The Court of Appeal reversed, finding the | ¡¡trial court committed legal error in finding the City’s substantial compliance with Sec. 28-39(d), which must be strictly construed, was sufficient.

While the notice might not have explicitly provided notice of Dupart’s right to request an extension prior to the first administrative hearing, we find Dupart was given two extensions and each time was also given a two-month window within which to remedy the defects or show substantial work in progress before the next administrative hearing. Significantly, the property was not even adjudicated blighted until the third hearing and only after the two extensions had lapsed and the property had still not been brought into compliance. Moreover, Dupart appeared at both hearings during which he was granted his extensions and never contested the notice.

Accordingly, we agree with the trial court that under these particular circumstances, substantial compliance with the notice requirements was sufficient as Du-part was proeedurally noticed regarding the condition of his property and was afforded reasonable opportunities to be heard, but still failed to remedy the defects even after multiple extensions. Accordingly, we reverse the judgment of the court of appeal, reinstate the trial court’s judgment on this issue, and remand to the court of appeal to address Dupart’s remaining assignments of error on appeal.

REVERSED; REINSTATED; and REMANDED TO THE COURT OF APPEAL.

      . The record does not contain a copy of the original Notice of Hearing.