author: WALLIS, J.

text:
    C.G., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4725.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   WALLIS, J.

C.G., a minor, appeals the trial court’s denial of his Motion for Judgment of Dismissal after he was found guilty of first-degree petit theft for stealing a cell phone with a value of $100 or more but less than $300. See § 812.014(1), (2)(e), Fla. Stat. (2012). We conclude that the evidence was insufficient to prove that the value of the cell phone was at least $100. We, therefore, vacate C.G.’s conviction and sentence, and reverse and remand with instructions for the lower court to enter a judgment and sentence for second-degree petit theft, under section 812.014(3)(a), Florida Statutes (2012).

At trial, the victim testified that: (1) he paid approximately $200 for the phone six months before the theft; (2) the phone was in “really good condition”; (3) he purchased a case for the phone and a protective screen for the glass right after purchasing it; (4) there were no cracks or nicks on the phone, case, or screen; (5) the phone’s software was working identically to when the item was first purchased and was operating at the same speed; and (6) the phone was essentially in the same condition at the time it was stolen as it was when purchased. The trial court ruled that “the victim’s testimony is sufficient to establish [value] — since it was only six months before that the value would’ve been in excess of $100.” Appellant’s testimony challenged the condition of the victim’s phone. The trial court determined that there was sufficient evidence of the phone’s value in excess of $100.

The value of a stolen item at the time of the theft is a necessary element of first-degree petit theft; it must be established beyond a reasonable doubt. See Smith v. State, 955 So.2d 1227, 1228 (Fla. 5th DCA 2007) (stating that conviction of grand theft must be supported by proof of item’s value beyond reasonable doubt). Value may be established through direct testimony of fair market value. Id. (citing Pickett v. State, 889 So.2d 860, 861-62 (Fla. 2d DCA 2003)). The owner of stolen property is competent to testify as to the fair market value of the property. Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983). Alternately, in the absence of direct testimony, value can be established through evidence of: (1) the original market cost; (2) the manner in which the property was used; (3) the condition of the property; and (4) the percentage of depreciation of the items since the purchase. Smith, 955 So.2d at 1228. In Smith, the victim testified “that the stolen computer was a Dell laptop, less than a year old, and ‘might have been about six months old at the time’ of the theft.” Id. at 1228. The victim also testified that he paid around $1,200 when he purchased the laptop and that it was working when it was returned. Id. No further testimony was presented concerning the laptop’s value, such as its percentage of depreciation since the purchase date. Our court held that the victim’s testimony was insufficient to establish the value of the computer at the time of theft. Id. at 1229. We have noted that “computer equipment can become obsolete very quickly” and, as a result, that the value is “not ‘so obvious as to defy contradiction.’ ” Id. (quoting Doane v. State, 847 So.2d 1015, 1017-18 (Fla. 5th DCA 2003)). We view cell phones similarly.

Here, the State did not attempt to establish value of the cell phone through direct testimony. The State also concedes it did not present evidence regarding the depreciation in value. The evidence of value was “not ‘so obvious as to defy contradiction’ ” and, therefore, was insufficient to establish the stolen property’s value at the time of the theft. Accordingly, we vacate C.G.’s conviction and sentence for first-degree petit theft and remand with instructions for the trial court to enter a judgment and sentence under section 812.014(3)(a), Florida Statutes, for second-degree petit theft.

REVERSED and REMANDED with INSTRUCTIONS.

ORFINGER and EVANDER, JJ., concur.


source: Caselaw Access Project

author: DAVIS, Chief Judge.

license: Public Domain

text:
    Leslie V. GRILL, Appellant, v. John T. GRILL, Appellee.
    No. 2D12-5080.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2013.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
    Michael S. Farrell of Law Office of Michael S. Farrell, P.A., Lakeland, for Appel-lee.
   DAVIS, Chief Judge.

Leslie V. Grill, the Former Wife, appeals from the final judgment that dissolved her marriage to John T. Grill, specifically challenging the trial court’s denial of her request for alimony. Because the final judgment fails to make sufficient findings to support the denial of alimony, we reverse.

On February 3, 2011, the Former Husband filed his petition for dissolution of marriage. The Former Wife filed her answer and counterpetition in which she made a claim for permanent periodic alimony. A final hearing was held on July 31, 2012, and the trial court entered the final judgment on September 20, 2012.

The final judgment made certain specific findings, including that the marriage was “barely a long term marriage, just over [seventeen (17) years in duration.” This finding indicates a presumption that some amount of alimony should be awarded to the Former Wife if a need is demonstrated. See Schomburg v. Schomburg, 845 So.2d 257, 258 (Fla. 2d DCA 2003) (“Because of the long term of the marriage, there is an initial presumption that permanent alimony is proper.”); see also § 61.08(4), Fla. Stat. (2011) (“For purposes of determining alimony, there is a rebuttable presumption that a ... long-term marriage is a marriage having a duration of seventeen years or greater.”). But while the trial court found that the Former Husband has the ability to pay some alimony, the trial court found that the Former Wife failed to demonstrate a need for it.

During the trial, the testimony showed that the Former Wife eo-owns with her family certain unspecified nonmarital properties. During the marriage, she received a minimal monthly income from earnings on these properties. Also during the marriage, the parties retained an attorney to file a partition action in order to obtain the Former Wife’s individual ownership of some of the property. During the dissolution litigation, the Former Wife sold one of these nonmarital properties for the sum of $180,000. She spent this full amount during a twelve-month period but could not explain to the court where the money was spent. Additionally, she was unable to explain to the trial court the nature or value of her remaining property interests. The Former Husband argued below that because the Former Wife has sufficient nonmarital property, she is not in need of alimony. He cited the fact that she “blew” $180,000 without being able to explain where the money was spent to suggest that her other assets are of significant value and that her ambiguity as to the value of the assets was an intentional attempt to preclude identification of her postmarriage holdings.

The trial court seemingly accepted the Former Husband’s arguments in its denial of the requested alimony. The trial court’s conclusion suggests that the Former Wife had sufficient nonmarital assets such that, if she were to liquidate them, she would be able to meet her living expenses without the need of alimony. Such reasoning is error. In the circumstances of this long-term marriage and under section 61.08, the Former Wife is not required to liquidate and deplete her assets to provide for her living expenses in lieu of the Former Husband’s anticipated contribution. See Blakistone v. Blakistone, 462 So.2d 883, 884 (Fla. 2d DCA 1985).

Accordingly, we reverse and remand for either the entry of a final judgment with sufficient findings or for further proceedings, if necessary. On remand, the trial court will necessarily have to address the respective incomes and living expenses of the parties. Until such time as the findings regarding need and ability to pay are made, this court is unable to further review the Former Wife’s need for an alimony award.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . There is no definitive testimony as to the actual nature of the properties or certainty of the monthly income derived therefrom. The record indicates that the Former Wife receives between $300 to $600 in income each month; however, the final judgment does not make any findings as to the total monthly incomes of the parties.


author: PER CURIAM.

text:
    FESTIVAL FUN PARKS, LLC, d/b/a Boomers!, Appellant, v. Yahtavian BELLAMY, Appellee.
    No. 4D12-82.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.

      Stephanie L. Varela and Elliot H. Scherker of Greenberg Traurig, P.A., Miami, and Jeffrey W. Johnson and Timothy F. Malin of The Johnson Law Group, Boca Raton, for appellant.
    Gary M. Farmer, Sr., of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L., Fort Lauderdale, for appellee.
   PER CURIAM.

The plaintiff sued Festival Fun Parks, LLC, d/b/a Boomers!, in a negligence action after the plaintiff was shot by a third party while leaving the defendant’s amusement park. The jury returned a verdict in favor of the plaintiff, and final judgment was entered per the verdict. We partially reverse the judgment as it relates to the award of future medical expenses, but we affirm as to the other issues on appeal.

Appellate courts review a trial court’s decision to deny a motion for a new trial on damages or remittitur for an abuse of discretion. R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 310 (Fla. 1st DCA 2012) (citing Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1263 (Fla.2006)). “A court cannot allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial.” Truelove v. Blount, 954 So.2d 1284, 1287 (Fla. 2d DCA 2007) (quoting McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So.2d 7, 9 (Fla. 1st DCA 2003)).

Section 768.043(2), Florida Statutes (2011), requires a trial court to consider the following when determining whether an award of damages is clearly excessive or inadequate:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.043(2), Fla. Stat. (2011).

During jury deliberations in this case, the jurors requested to review the present and future value tables for medical expenses of the plaintiff. The future medical expenses table was prepared by an economist, who based his calculations on the continuation of care report prepared by the plaintiffs future care expert. The expert’s continuation of care report indicated that the plaintiff would need a “dorsal column stimulator” every five years for the rest of his life, totaling ten procedures. Using this information, the economist prepared a “Summary of the Present Value Analysis of the Cost of Dorsal Column Stimulator for [the plaintiff].” The economist calculated the cost of ten separate dorsal column stimulators over the course of the plaintiffs life, which the continuation of care report indicated would be necessary, and concluded that the plaintiff would likely spend a present value of $497,681.00 on dorsal column stimulators.

At trial, however, the plaintiffs expert testified that the plaintiff would probably need only two dorsal column stimulators over the course of his life, not ten. The economist’s summary of the total cost of dorsal column stimulators, which calculated ten separate payments over the plaintiffs lifetime, therefore did not accurately reflect the evidence presented at trial.

During deliberations, the jury requested to see the economist’s summary. Counsel for both parties recognized the discrepancy between the evidence presented at trial and the data used by the economist to calculate future medical expenses relating to the dorsal column stimulators. Before allowing the economist’s summary to be taken back to the jury room, the attorneys for both sides attempted to correct the summary so that it accurately reflected the evidence presented at trial. The problem, however, was that the lawyers — who, by all indications within the record on appeal, are not economists or mathematicians themselves — inaccurately adjusted the chart as it pertained to the dorsal column stimulators. Although their collective intention to alter the summary was a seemingly innocent attempt to comport the summary to the evidence actually introduced at trial, the math was simply incorrect. This concern was noted by defense counsel’s objection that he did not believe the adjustments to the summary were correct.

The jury returned a verdict for the full amount of damages listed in the economist’s summary. It is apparent that the jury relied extensively, if not exclusively, on the figures within the economist’s summary when calculating future medical expenses. It also appears that the jury intended to award the plaintiff the entire amount contained in the summary; however, this calculation did not accurately reflect the evidence presented at trial regarding the cost of the dorsal column stimulators.

It appears from the record that the jury-ignored the evidence presented at trial when reaching its verdict and instead relied on inaccurate modifications to the economist’s summary of the evidence as it related to these dorsal column stimulators. These hastily-made modifications, although an earnest effort to comport the summary to the evidence actually presented at trial, were nevertheless not supported by the evidence. Therefore, the trial court abused its discretion by denying the defendant’s motion for remittitur. See § 768.043(2), Fla. Stat. (2011) (stating that, when deciding whether a verdict is excessive, the trial court shall consider “[wjhether it clearly appears that the trier of fact ignored the evidence in reaching the verdict ... [or][w]hether the amount awarded bears a reasonable relation to the amount of damages proved [or][w]hether the amount awarded is supported by the evidence”); Truelove, 954 So.2d at 1287 (“A court cannot allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial.”) (quoting McCarthy Bros. Co., 849 So.2d at 9).

Because a correct calculation of the evidence presented at trial can be garnered from the record on appeal, we remand this case with instructions to reduce the award of damages for future medical expenses by $212,834.00. This results in a total award of $1,048,996.00 for future medical expenses. In lieu of an entirely new trial on damages, this remedy achieves both accuracy in the amount of-future medical expenses proved by the evidence, as well as an effectuation of the jury’s intent to award the plaintiff the full amount of future medical expenses contained within the economist’s summary.

With regard to the other issues on appeal, we note that trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant. See McCain v. Fla. Power Corp., 593 So.2d 500, 503-04 (Fla.1992) (“[T]he question of foreseeability as it relates to proximate causation generally must be left to the fact-finder to resolve.”). We further note that a “trial court has broad discretion in ruling on motions for new trial and mistrial, and its denial of such motions is reviewed under an abuse of discretion standard.” Saunders v. Dickens, 103 So.3d 871, 877 (Fla. 4th DCA 2012) (quoting Philippon v. Shreffler, 33 So.3d 704, 709 (Fla. 4th DCA 2010), abrogated on other grounds by Allstate Ins. Co. v. Marotta, 125 So.3d 956, 2013 WL 2420451 (Fla. 4th DCA June 5, 2013)). With these principles in mind, we affirm the judgment with respect to the remaining issues on appeal.

Based on the foregoing, we partially reverse the judgment as it relates to the calculation of future medical expenses. On remand, and consistent with this opinion, the trial court shall reduce the award of future medical expenses by the amount of $212,834. We otherwise affirm the judgment with respect to the other issues on appeal.

Affirmed in part, reversed in part, and remanded with instructions.

GROSS, MAY and FORST, JJ„ concur.

      . We note appellee counsel’s concession, both at oral argument and in its "Notice of Correction as to Misrepresentations during Oral Argument,” that the evidence at trial showed the present value of these stimulators was less than the amount stated in the attorney-modified summary of future medical expenses. Although we have taken note of the concession in appellee’s "Notice,” we have not otherwise relied upon this document in reaching our decision with respect to the other issues on appeal or any other aspect of the damages award.

      . The economist’s summary of future medical expenses were inaccurately modified to reflect a total present value of $331,787.00 for two dorsal column stimulators. The plaintiff's expert’s testimony was that the plaintiff would need two dorsal column stimulators, every eight to ten years, after turning fifty years old. Using the "Summary of the Present Value Analysis of the Cost of Dorsal Column Stimulator for [the plaintiff],” this court is able to calculate the correct present value of these two dorsal column stimulators to be $118,953.00. The difference, therefore, between the incorrect present value — which went to the jury — and the correct present value is $212,834.00. This amount should be deducted from the total award for future medical expenses in order to accurately reflect the evidence presented at trial.


author: FORST, J.

text:
    Edward A. WADSWORTH, Appellant, v. JP MORGAN CHASE BANK, N.A., et al., Appellees.
    No. 4D12-3057.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Edward A. Wadsworth, West Palm Beach, pro se.

      Thomas H. Loffredo and Shayna A. Freyman of GrayRobinson, P.A., Fort Lauderdale, for appellee JP Morgan Chase Bank, N.A.
   FORST, J.

In this mortgage foreclosure case, after finding Edward A. Wadsworth in default for failure to file an answer in response to JP Morgan Chase Bank’s (“Chase Bank”) complaint, the trial court granted summary judgment against Wadsworth, in favor of Chase Bank. Wadsworth now appeals the entry of default and the summary judgment order against him. For reasons discussed below, we find that the trial court improperly granted Chase Bank’s motions for default and summary judgment, and thus we reverse these orders and remand for appropriate proceedings.

Facts

The parties executed a mortgage document and mortgage note in March 2007, with Chase Bank as the lender and Wads-worth as the borrower. The mortgage document includes an acceleration clause requiring Chase Bank to notify Wadsworth before accelerating the mortgage note. The provision further specifies that the notice must provide a date by which Wads-worth may cure the default, which cannot be less than thirty days from the date notice is given to Wadsworth.

Wadsworth failed to pay the required installment payment for the mortgage note in December 2007. On April 4, 2008, Chase Bank sent a letter to Wadsworth notifying him that Chase Bank “has accelerated all sums due and owing.” Three days later, on April 7, Chase Bank filed a mortgage foreclosure complaint against Wadsworth, alleging default and requesting payment of the principal of the note, the interest due, and costs of collection. This is the only letter of notice in the record.

Wadsworth responded to the complaint with a motion to dismiss on April 30, 2008, which the trial court denied. Chase Bank filed two motions for default and a motion for summary judgment against Wadsworth for “failure to serve any papers on the undersigned or any papers as required by law.” The trial court denied Chase Bank’s motions for default on January 20, 2009, because Wadsworth had filed a pleading (i.e., his motion to dismiss). Chase Bank later filed a third motion for default against Wadsworth for “failure to file an Answer in this matter” on June 26, 2012. Wadsworth then filed an answer on July 6, 2012.

On July 10, 2012, the trial court granted both Chase Bank’s motion for default and motion for summary judgment against Wadsworth. Wadsworth immediately filed a motion to vacate the final order and for reconsideration, arguing that the default was improper because he had filed an answer and that Chase Bank had not complied with the notice requirement in the acceleration clause. The trial court denied Wadsworth’s motion and this appeal followed.

For this appeal, Chase Bank has filed a partial confession of error, in which it agrees with Wadsworth that the trial court erred in entering a default against him after Wadsworth had filed an answer and that the trial court further erred in granting summary judgment against Wads-worth where issues of material fact remain to be addressed in regards to compliance with the acceleration clause. Thus, we reverse the orders below with brief remarks on the errors and to also briefly address the issue to which Chase Bank does not confess error.

Entry of Default Against Wadsworth

We review an order denying a motion to vacate an entry of default for abuse of discretion. Gibson Trust, Inc. v. Office of the Attorney Gen., 883 So.2d 379, 382 (Fla. 4th DCA 2004).

Florida Rule of Civil Procedure 1.500(c) allows a party to file a pleading any time before a default is entered. Only after a party has failed to serve any paper in an action may a default be entered. Fla. R. Civ. P. 1.500(a), (b). Because the dates are clear that Wadsworth filed an answer on July 6, before default was entered on July 10, we find that the trial court abused its discretion in entering default against Wadsworth. Therefore, reversal of the order entering default is required.

Summary Judgment Against Wadsworth

We review an order granting summary judgment de novo. Scott v. Williams, 107 So.3d 379, 384 (Fla.2013); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. Pro. 1.510(c); Volusia County, 760 So.2d at 130. Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment. Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009) (quoting Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995)). In Frost, we reversed an order granting summary judgment against a defendant in a foreclosure action where the plaintiff bank did not meet its burden to refute the [defendants] lack of notice and opportunity to cure defense. Id.

As in Frost, Wadsworth’s answer asserts that Chase Bank did not comply with the notice requirement in the acceleration clause. The only notice of record Chase Bank gave was on April 4 and the bank subsequently filed a foreclosure complaint on April 7, giving Wadsworth less than thirty days of notice of Chase Banks intent to accelerate the mortgage and effectively no opportunity to cure the default. No evidence of record exists showing that Chase Bank otherwise complied with the acceleration clause, and the trial court did not address Wadsworth’s defense of lack of notice in its final summary judgment order. Thus, at least one genuine issue of material fact exists to be addressed, making summary judgment improper in this action.

Mediation and Summary Judgment of Foreclosure

Wadsworth also argues in this appeal that summary judgment is improper in a foreclosure proceeding where mediation has not first been held. To this point alone, Chase Bank does not confess error.

In 2009, the Florida Supreme Court mandated mediation in homestead residential mortgage foreclosure cases. In re Final Report & Recommendations on Residential Mortg. Foreclosure Cases, 2009 WL 5227471 (Fla. Dec. 28, 2009). In response, Florida’s Fifteenth Judicial Circuit issued Administrative Order Number 3.308-12/10, which provided for mediation in residential mortgage foreclosure cases filed on or after July 12, 2010. Case Mgmt. of Residential Foreclosure Cases & Mandatory Mediation Referral, Admin. Order No. 3.308-1/12 (Fla. 15th Cir. Ct. Jan. 12, 2012) (emphasis added). The program was later terminated in 2011. Id.

The complaint giving rise to the instant foreclosure case was filed on April 7, 2008, which is outside the time of mandated mediation under Administrative Order Number 3.308-12/10. No such requirement exists outside of this Administrative Order to support Wadsworth’s argument that he is entitled to mediation. We still reverse the order of summary judgment on the grounds stated above, but we note that summary judgment against Wads-worth would not be improper merely because mediation was not held beforehand.

Conclusion

For the reasons set forth above, we reverse the entry of default and the order of summary judgment against Wadsworth.

Reversed and remanded for further proceedings.

GROSS and MAY, JJ., concur.

      . We need not determine whether a failure to mediate would necessarily preclude a final judgment of foreclosure for a case filed after July 12, 2010.


text:
    Orlando Javier GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2779.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant in this case pled guilty to the charges of cultivation of cannabis (Count I) and trafficking in cannabis over twenty-five pounds (Count II). He was adjudicated guilty and sentenced to sixty months in prison on each count, the sentences to run concurrently. The defendant appeals his conviction on the cultivation charge and his sentence, arguing that being convicted under both counts violates double jeopardy. We agree with the defendant that his dual convictions violate double jeopardy, and we therefore reverse on the cultivation charge and remand for resentencing for the reasons stated below.

Although the defendant never raised the double jeopardy argument in the circuit court, the defendant correctly states that the issue can be raised as fundamental error on direct appeal. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994) (noting an exception to the waiver of a later double jeopardy attack -with a guilty plea and subsequent adjudication of guilt). We review this purely legal issue de novo. Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008) (citing State v. Florida, 894 So.2d 941, 945 (Fla.2005)).

In following the Florida Supreme Court’s double jeopardy analysis in Johnson v. State, 712 So.2d 380, 381 (Fla.1998), this court, as well as the Fifth District, has held that dual convictions for sale or delivery or manufacture of a controlled substance and the trafficking of that controlled substance in the same quantity and under the same conduct violate double jeopardy. See Latos v. State, 39 So.3d 511, 513-14 (Fla. 4th DCA 2010); Fonseca v. State, 114 So.3d 1010 (Fla. 5th DCA 2012); Odom v. State, 104 So.3d 1238, 1239 (Fla. 5th DCA 2012). In the present case, as in Latos, the trafficking conduct was the same conduct constituting the lesser offense, rendering the defendant’s conviction under both counts violative of double jeopardy. The State does not argue that the cultivation count is for cannabis distinct from the cannabis involved in the trafficking count, but even if it did, such an argument has been rejected by this court. See Sims v. State, 793 So.2d 1153, 1154 (Fla. 4th DCA 2001) (holding that convictions for possession with intent to sell cannabis and simple possession of cannabis could not be grounded on cannabis being found in different places in the house).

Therefore, we reverse the defendant’s conviction and sentence for cultivation of cannabis (Count I), and remand for the circuit court to vacate that conviction and sentence and to resentence the defendant based on the trafficking count (Count II) alone.

Reversed and Remanded.

GROSS, MAY and FORST, JJ., concur.

      . "Manufacture” is defined, in relevant part, as "the production, preparation, compounding, cultivating, growing, conversion, or processing of a controlled substance ...."§ 893.02(14)(a), Fla. Stat. (2010) (emphasis added).


text:
    Gordon Phelps KELLEY, III, Petitioner, v. Joanna KELLEY, individually and as Personal Representative of the Estate; Joanna Kelley and Northern Trust Bank of Florida, N.A., as Co-Trustees of the Marital Trust created under the 2008 Will; Bank of New York, Camille Weiss and Erret Van Nice, as Co-Trustees of the Gordon P. Kelley, Jr. Agreement; Northern Trust Company, Camille Weiss and Erret Van Nice, as Co-Trustees of the Hortense Henry Prosser Agreement; Amnesty International of the U.S.A., Inc., Cousteau Society; World Wildlife Fund; and the Class of Persons Referenced as “living great-nieces and great-nephews” of the Decedent, Respondents.
    No. 4D13-1113.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Edward Downey of Downey & Downey, P.A., Palm Beach Gardens, and Law Offices of Ernest A. Burguieres, New Orleans, LA, for petitioner.
    Bernard Allen and Frank T. Adams of Katz Barron Squitero Faust, Miami, and Douglas F. Hoffman of Rudolf & Hoffman, P.A., Fort Lauderdale, for respondents Joanna Kelley, Amnesty International of the U.S.A., Inc., World Wildlife Fund, and The Cousteau Society, Inc.
   PER CURIAM.

Petitioner challenges an order that denied his Louisiana attorney’s motion to appear pro hac vice in the underlying litigation. Because the motion was sufficient, and there were no legally sufficient reasons to deny the motion, we grant the petition for writ of certiorari.

Florida Rule of Judicial Administration 2.510(a) provides that a foreign attorney must file a verified motion to appear as counsel showing that he or she is a member in good standing of the bar of another state. The court may grant permission if the motion provides all of the information required by rule 2.510(b), if the foreign attorney is qualified under the rule, and if the foreign attorney has associated local counsel who is a member of The Florida Bar. The motion in this case provided all the necessary information, and the foreign attorney met all the qualifications.

Irreparable harm in denying the motion is two-fold. First, a party is deprived of counsel of choice. Info. Sys. Assocs., Inc. v. Phuture World, Inc., 106 So.3d 982, 984 (Fla. 4th DCA 2013). Second, the denial or revocation of counsel’s admission has future adverse consequences on the attorney. Id.; see also Brooks v. AMP Servs. Ltd., 979 So.2d 435, 437-38 (Fla. 4th DCA 2008).

The trial court’s view that the attorney needed to show a “special background,” suitable to the type of litigation in which the attorney appears, departs from the essential requirements of law. Neither the rule nor case law requires such a showing.

Although the trial court has discretion in determining whether to grant pro hac vice status, that discretion is not unlimited or absolute. See Brooks, 979 So.2d at 439. “[T]he ruling should be based on matters that appear of record before the court.” THI Holdings, LLC v. Shattuck, 93 So.3d 419, 423 (Fla. 2d DCA 2012) (quoting Huff v. State, 569 So.2d 1247, 1249-50 (Fla. 1990)). “For example, something which easts doubt upon whether the applicant is actually a member of the bar of another jurisdiction or whether ... the applicant is a member in good standing [within his designated jurisdiction] may support a denial of the motion.” Id. (quoting Huff, 569 So.2d at 1250) (emphasis omitted). None of those reasons are apparent in this record.

Consequently, we grant the petition and quash the order that denied the motion to appear pro hac vice.

Petition granted.

WARNER, STEVENSON and MAY, JJ., concur.


text:
    John REASEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4597.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

Reasee, the defendant below (“the defendant”), appeals the trial court’s order correcting his sentence. The defendant argues that the court should have awarded credit for 478 days of pre-sentence jail time, rather than the 451 days of pre-sentence jail time that were credited to his sentence. We agree and reverse.

The defendant was initially charged with violating his probation (“VOP-I”), and a violation of probation hearing was held on February 17, 2011. The defendant appeared in court and pled guilty to the violation of probation. Before the defendant was taken from the courtroom, he was observed threatening the victim, who was in attendance. The presiding judge deemed this to be a new violation of probation (“VOP-II”). The presiding judge then sentenced the defendant on VOP-I, and contemporaneously ordered that the defendant be held until further order from the court as to VOP II. At the judge’s direction, a violation of probation warrant for VOP-II was executed on March 18, 2011. The defendant was sentenced on VOP-II on November 21, 2011.

The defendant filed a motion to correct his sentence for VOP-II, arguing that the trial court should give him credit for 478 days of pre-sentence jail time. The State agreed to a 451-day credit, but it argued that the twenty-seven days the defendant spent in jail between February 17, 2011 and March 17, 2011 were not pre-sentence jail time. The trial court agreed with the State and awarded credit for only 451 days of pre-sentence jail time. It is the time between February 17, 2011 and March 17, 2011 which is the subject of the instant appeal. We hold that the trial court should have considered this time to be pre-sentence jail time because it was time served in jail prior to being sentenced on VOP-II.

“[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” Waithe v. State, 941 So.2d 534, 535 (Fla. 4th DCA 2006) (quoting § 921.161(1), Fla. Stat. (2011)). This credit for time served is mandatory under section 921.161 and includes any portion of jail time served for the current violation of probation and prior violations of the same probation. Id,.; Davis v. State, 88 So.3d 1055, 1056-57 (Fla. 4th DCA 2012).

The twenty-seven days that the defendant spent in jail between February 17 and March 17, even if these days coincided with the period that the defendant was in county jail awaiting transfer to prison on the VOP-I sentence, should be counted as pre-sentence jail time for the VOP-II sentence. The record reflects that the defendant was held on VOP-II beginning on February 17, 2011, and remained in jail until November 21, 2011, when he was finally sentenced on VOP-II.

The cases cited by the State support the proposition that the defendant must seek jail time credit from the Department of Corrections for any time served in jail after sentencing, but before transfer to state prison. See, e.g., Smith v. State, 932 So.2d 594, 595 (Fla. 5th DCA 2006). Such is not the case here. In this case, the judge presiding over the original VOP-I hearing ordered the defendant held until further notice as to VOP-II at the time this second violation occurred on February 17, 2011. The twenty-seven days between February 17 and March 17 were served before the defendant was sentenced on VOP-II; therefore, the defendant is entitled to have his sentence on VOP-II corrected to reflect credit for those twenty-seven days.

Accordingly, we remand this case for proceedings consistent with this opinion.

Reversed.

GROSS and MAY, JJ., concur.


author: EMAS, J.

text:
    Melanie and David LAWRENCE, etc., Appellants, v. BEAULIEU GROUP, Appellee.
    No. 3D12-2226.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2013.

      Curt Obront, Miami, for appellants.
    Lane, Reese, Summers, Ennis & Perdo-mo and Kevin D. Franz, Coral Gables, for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   EMAS, J.

Appellants/Plaintiffs, Melanie and David Lawrence, co-personal representatives of the estate of Dorvil Lawrence, file this appeal following a jury verdict, and final judgment, in favor of Appellee/Defendant Beaulieu Group, and the trial court’s order denying plaintiffs’ motion for new trial. Plaintiffs raise numerous claims, including pretrial rulings on motions in limine, evi-dentiary rulings during trial, improper closing argument, and an assertion that a new trial should have been granted because the verdict was contrary to the manifest weight of the evidence.

Having reviewed the entire record below, we conclude that the trial court did not abuse its discretion in its pretrial rulings on the motions in limine and in its evidentiary rulings during trial. See Jimenez v. Gulf & W. Mfg. Co., 458 So.2d 58 (Fla. 3d DCA 1984).

Further, Plaintiffs failed to object at trial to those portions of the closing argument they now assert were improper, and failed to raise this claim in their motion for new trial. Even if we were to conclude these comments were improper, they do not, individually or cumulatively, rise to the level of fundamental error, rendering this claim without merit. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000).

Finally, the trial court determined that the verdict was not contrary to the weight of the evidence, and upon our review we conclude that the trial court did not abuse its discretion in so finding. Weatherly v. Louis, 31 So.3d 803 (Fla. 3d DCA 2009). In order to determine that a trial court abused its discretion in denying a motion for new trial, the evidence must be clear and obvious, and not conflicting. Id. at 805 (citing Dewitt v. Maruhachi Ceramics of Am., Inc., 770 So.2d 709, 711 (Fla. 5th DCA 2000)). Here, the case was vigorously contested and the evidence presented was in conflict. Weighing the evidence and resolving those conflicts is within the province of the jury. There was a rational basis in the evidence to support the jury’s determination that there was no negligence on the part of Beaulieu Group which was a legal cause of the death of Dorvil Lawrence. Therefore the trial court did not abuse its discretion in denying Plaintiffs’ motion for new trial.

Affirmed.


text:
    S.L. WADE, Petitioner, v. D.T. WADE, Respondent.
    No. 3D13-2354.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2013.
    Lisa Marie Macci, Boca Raton, for petitioner.
    Marks & West, Carolyn W. West and Evan R. Marks, Miami; Beermann, Priti-kin Mirabelli Swerdlove and James B. Pri-tikin, Chicago, for respondent.
    Before SHEPHERD, C.J., and FERNANDEZ and EMAS, JJ.
   PER CURIAM.

Petitioner S.L. Wade (“the Mother”) seeks the issuance of a writ of prohibition following an order denying, as legally insufficient, an initial motion for disqualification of the trial judge. The standard of review of a trial court’s determination on a motion to disqualify is de novo. MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990).

Having reviewed the petition and the response thereto, we conclude that the facts alleged in the motion to disqualify, which must be taken as true, “would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Rodriguez, 919 So.2d at 1274.

As set forth in the sworn motion to disqualify, the trial judge held a hearing on the emergency motion of Respondent, D.T. Wade (“the Father”), seeking to suspend the Mother’s timesharing. The Father presented, as his first witness, the parenting coordinator. During his testimony, the parenting coordinator began listing several “recommendations” which he believed should be implemented. The trial judge stopped the witness during his direct testimony and announced that the court was adopting one of these “recommendations.” The Mother objected to the court making such a determination without affording her an opportunity to cross-examine the Father’s witness or to present her own evidence on the issue.

Further, at the conclusion of the hearing, the trial court on its own ordered that the mother undergo a psychological evaluation. The Mother objected and requested the opportunity to present testimony from her expert witness (a psychiatrist, who was present at the hearing) before the court ordered such an evaluation. The trial court denied this request.

By announcing its ruling, adopting one of the recommendations of the Father’s witness before the Mother was afforded an opportunity to cross-examine the witness or present any evidence on the issue, and by ordering a psychological evaluation of the Mother, again without giving the Mother an opportunity to present evidence, the trial judge denied the Mother a most basic right of due process and reasonably caused her to fear that she would not receive a fair and impartial hearing.

We grant the writ of prohibition. We withhold formal issuance of the writ, confident that the trial judge will promptly issue an order of disqualification. We remand this cause for reassignment to a successor judge and for further proceedings consistent with this opinion.

      . In considering an initial motion to disqualify, the trial court "shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” Fla. R. Jud. Admin. 2.330(f); Rodriguez v. State, 919 So.2d 1252, 1274 (Fla.2005).

      . It should be noted that, in an opinion released simultaneously with this opinion, this Court granted the Mother's petition for writ of certiorari and quashed a portion of the same order which forms a basis for the instant petition. See Wade v. Wade, No. 3D13-2317, 124 So.3d 369, 2013 WL 5735321 (Fla. 3d DCA Oct. 23, 2013).


text:
    R.C., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-471.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, R.C., challenges a delinquency disposition order adjudicating him delinquent and committing him to a moderate-risk facility. Appellant argues that the court erred by failing to comply with the requirements enunciated in E.A.R. v. State, 4 So.3d 614 (Fla.2009), when it deviated from the Department’s recommendation of probation and that the court erred by failing to make written findings as required by section 985.441(2)(d), Florida Statutes. Because the Department did not have sufficient input regarding the appropriate restrictiveness level for Appellant and because the court failed to make the statutorily required findings, we reverse and remand for further proceedings.

After being unsuccessfully terminated from the drug court program, Appellant pled no contest to trespass on school property and to petit theft. The predisposition report discussed Appellant’s family and educational background and his drug addiction. The Department determined that Appellant was a low risk to reoffend, and it recommended placing Appellant on probation. During the disposition hearing, the State objected to the probation recommendation and asked the court to place Appellant in a moderate-risk facility. Based on the predisposition report and the testimony presented, the trial court determined that probation did not sufficiently address Appellant’s need for residential drug treatment, and it committed Appellant to a moderate-risk facility. The court declined to enter a written order stating the reasons for deviating from the Department’s recommendation.

Appellant argues that the trial court erred by failing to comply with the requirements in E.A.R. when it placed him in a moderate-risk facility. As explained in B.K.A. v. State, 122 So.3d 928 (Fla. 1st DCA 2013), E.A.R. does not apply to the trial court’s initial determination of whether a juvenile should be committed to the Department. However, the trial court erred in failing to request an additional multidisciplinary assessment and follow-up predisposition report, as the court did in J.B.S. v. State, 90 So.3d 961, 967 (Fla. 1st DCA 2012), before it determined that a moderate-risk placement was appropriate for Appellant. Id. The trial court also erred in failing to enter a written order in compliance with section 985.441(2)(d), Florida Statutes. K.M.H. v. State, 91 So.3d 262, 263 (Fla. 1st DCA 2012).

We AFFIRM the adjudication of delinquency, but we REVERSE Appellant’s commitment and remand for further proceedings consistent with B.K.A. and section 985.433(7), Florida Statutes.

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


text:
    A.G., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-559.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2013.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, A.G., challenges a delinquency disposition order adjudicating her delinquent and committing her to a moderate-risk facility. Appellant argues that the court erred by failing to comply with the requirements enunciated in E.A.R. v. State, 4 So.3d 614 (Fla.2009), when it deviated from the Department’s recommendation of probation. Because the Department did not have sufficient input regarding the appropriate restrictiveness level for Appellant, we reverse and remand for further proceedings.

In 2010, Appellant pled no contest to trespass in an occupied structure and resisting an officer without violence, and she was placed on probation. Appellant absconded from probation later that year. In 2013, she admitted to violating her probation. The predisposition report indicated that Appellant had not lived with any family members since she ran away from her father’s home in 2010, that she failed to complete any terms of prior probation, and that she had charges pending under a false name in another county. The Department concluded that Appellant was a moderate risk to reoffend, and it recommended placing her on probation. At the disposition hearing, the State objected to the recommendation and asked the court to place Appellant in a moderate-risk facility. Based on the predisposition report and the testimony presented, the court determined that probation did not sufficiently address Appellant’s need for supervision and protection, and it committed Appellant to a moderate-risk facility.

Appellant argues that the trial court erred by failing to comply with the requirements in E.A.R. when it placed her in a moderate-risk facility. As explained in B.K.A. v. State, 122 So.3d 928 (Fla. 1st DCA 2013), E.A.R. does not apply to the trial court’s initial determination of whether a juvenile should be committed to the Department. However, the trial court erred in failing to request an additional multidisciplinary assessment and follow-up predisposition report, as the court did in J.B.S. v. State, 90 So.3d 961, 967 (Fla. 1st DCA 2012), before it determined that a moderate-risk placement was appropriate for Appellant. Id.

We AFFIRM the adjudication of delinquency, but we REVERSE Appellant’s commitment and remand for further proceedings consistent with B.K.A. and section 985.433(7), Florida Statutes.

REVERSED and REMANDED.

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


author: BENTON, J.

text:
    Justin A. MARTINEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5066.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2013.

      Joseph P. Klock, Jr. and Hilton Napoleon, II of Rasco, Klock, Perez, Nieto, Coral Gables, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   BENTON, J.

Justin A. Martinez petitions for writ of habeas corpus, contending that he received ineffective assistance of counsel on direct appeal of his sentence for attempted second-degree murder. During his sentencing hearing, he maintains, the trial court relied on purported facts not proven (or even at issue at trial — and not established otherwise), thereby denying him due process. Petitioner contends that this amounted to fundamental error, and that appellate counsel was ineffective for not raising the error as a point on direct appeal. We grant the writ.

Ineffective assistance of appellate counsel claims are properly raised by petitions for writs of habeas corpus filed directly in the appeals court. See Rutherford v. Moore, 774 So.2d 687, 643 (Fla.2000). Under Florida Rules of Appellate Procedure 9.100 and 9.141(d), our jurisdiction to issue such writs is clear. The rules of decision governing ineffective assistance of appellate counsel claims parallel those laid down in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for ineffective assistance of trial counsel claims. See Rutherford, 774 So.2d at 643. To prevail, the petitioner must show that appellate counsel’s performance was so deficient as to fall “ ‘measurably outside the range of professionally acceptable performance’ and that the petitioner was prejudiced as a result because the deficiency “ ‘compromised the appellate process’ ” to the extent of undermining confidence in the result of the appeal. Id. (quoting Thompson v. State, 759 So.2d 650, 660 (Fla.2000)).

Appellate counsel cannot be deemed to have performed deficiently for failing to raise an issue trial counsel did not preserve for appeal, see Dennis v. State, 109 So.3d 680, 702 (Fla.2012), unless fundamental error infected the trial court proceedings. See id.; Derrick v. State, 983 So.2d 443, 464 (Fla.2008); Branch v. State, 952 So.2d 470, 481 (Fla.2006). On the other hand, because fundamental error is reviewable on direct appeal even in the absence of a contemporaneous objection in the trial court, appellate counsel’s failure to argue fundamental error, despite trial counsel’s dereliction, has been held to constitute ineffective assistance of counsel. See Spagnolo v. State, 116 So.3d 599, 605 (Fla. 5th DCA 2013) (granting new trial on one count); Fluker v. Buss, 112 So.3d 503, 503-04 (Fla. 3d DCA 2012) (ordering new trial); Alexis v. State, 112 So.3d 144, 145 (Fla. 1st DCA 2013) (ordering second appeal); Cummings v. State, 103 So.3d 1048, 1048 (Fla. 2d DCA 2013) (ordering new trial); Riley v. State, 25 So.3d 1, 3-4 (Fla. 1st DCA 2008) (reversing conviction and sentence and remanding for new trial on one count).

On direct appeal, before filing an initial brief, moreover, appellate counsel can file a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to preserve many sentencing errors. See Fortner v. State, 23 So.3d 1275, 1276 (Fla. 2d DCA 2010) (“A claim that counsel was ineffective in failing to file a rule 3.800(b)(2) motion to correct sentencing error when the sentence imposed is not authorized by law is cognizable in a petition alleging ineffective assistance of counsel.”); Mack v. State, 955 So.2d 51, 55 (Fla. 1st DCA 2007) (deciding that, because appellate counsel could have preserved Apprendi issue by filing 3.800(b)(2) motion before the first brief was served, it is no defense to petitioner’s claim of ineffective assistance that appellate counsel (like trial counsel) failed to do so”). See also Anderson v. State, 988 So.2d 144, 146 (Fla. 1st DCA 2008) (“[G]iven that ... the issue could have been raised by rule 3.800(b)(2) motion, ... appellate counsel’s failure to do so constitutes ineffective assistance.”); Flowers v. State, 965 So.2d 1233, 1234 (Fla. 1st DCA 2007) (same); Jones v. State, 964 So.2d 855, 856-57 (Fla. 2d DCA 2007) (“Appellate counsel’s failure to preserve this sentencing error for appellate review by way of a rule 3.800(b)(2) motion constitutes ineffective assistance of counsel.”); Evans v. State, 904 So.2d 638, 639 (Fla. 1st DCA 2005) (concluding Evans satisfied his burden of demonstrating entitlement to relief because “his appellate counsel was ineffective for failing to preserve the sentencing error by motion pursuant to rule 3.800(b)(2)”).

A sentence within statutory limits like petitioner’s is generally unassailable on appeal. See Howard v. State, 820 So.2d 337, 339 (Fla. 4th DCA 2002). But a sentence cannot stand, at least on direct appeal, if the sentencing judge considered constitutionally impermissible factors in arriving at the sentence. See Yisrael v. State, 65 So.3d 1177, 1178 (Fla. 1st DCA 2011). Relying on pending or dismissed charges, in effect deeming such charges established without proof or a conviction, violates a defendant’s right to due process. See id. Taking “unsubstantiated allegations of wrongdoing” as established fact violates due procéss. See Reese v. State, 639 So.2d 1067, 1068 (Fla. 4th DCA 1994).

When the prosecutor in Reese v. State informed the sentencing judge that the state had filmed the defendant participating in other, uncharged crimes, see id. at 1068, and the court indicated it would consider the uncharged crimes in sentencing the defendant, see id., the Fourth District held that, where “there was no evidence placed in the record to support the state’s allegations,” deeming the allegations established for sentencing purposes violated the defendant’s right to due process. Id. Because a sentence based on mere allegation or surmise violates the fundamental constitutional rights of the defendant, it is renewable as fundamental error even in the absence of a contemporaneous objection. See Nawaz v. State, 28 So.Sd 122, 124 (Fla. 1st DCA 2010).

The state introduced no evidence in the present case that drugs had anything to do with petitioner’s crime. The state’s unsupported allegations cannot serve as evidence of drug possession. See Eight Hundred, Inc. v. Fla. Dep’t of Revenue, 887 So.2d 574, 576 (Fla. 1st DCA 2008) (“Representations by an attorney for one of the parties regarding the facts ... do not constitute evidence.”). Mr. Hernandez’s statement that the bag contained “stuff’ was highly ambiguous and fell far short of proof of drug involvement the court could consider in sentencing while remaining within the bounds of due process.

But the sentencing judge plainly proceeded on the assumption that a drug transaction had been in progress when the charged offense took place. While agreeing that petitioner met the criteria under the youthful offender statute, the prosecutor asked that he be sentenced instead to the thirty-year maximum. In support, the state misstated the trial record, as follows:

There was testimony from a law enforcement officer that the entire incident occurred based upon two, two and a half pounds of marijuana that was found in the backpack.

When petitioner’s trial counsel pointed out that no evidence of drugs of any kind had been adduced, the trial court mistakenly responded that there were “no actual drugs but there was testimonial evidence that drugs were involved in the incident.” In fact, there was no such testimony, as we know from our own records in Martinez v. State, 80 So.3d 1025 (Fla. 1st DCA 2012), the direct appeal. Petitioner’s trial counsel challenged the sentencing judge’s recollection in a timely fashion, stating: “[TJhere was no evidence to suggest that. I mean, there may have been an inference [as] to drugs but there was no hard evidence .... What was in the car is, you know, it’s questionable.” But the trial court did not acknowledge its mistake and eventually decided:

Okay. So based on everything that I’ve heard here I’m going to adjudicate you guilty. I’m going to sentence you to the 20 year minimum mandatory that’s required [absent sentencing as a youthful offender] in this case.

On direct appeal, we affirmed (per curiam) petitioner’s judgment and sentence in Martinez, 80 So.3d at 1025 (Table). Appellate counsel did not argue that appellant’s sentencing was in any way improper. On the basis of this omission, the pending petition for writ of habeas corpus claims his appellate counsel rendered ineffective assistance. If trial counsel’s exchange with the learned trial judge had not itself been sufficient to preserve the point, appellate counsel would have been under an obligation to file a motion under Florida Rule of Criminal Procedure 3.800(b)(2). See, e.g., Agosto-Molina v. State, 933 So.2d 26, 28 (Fla. 2d DCA 2006) (holding “appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct sentencing error”).

The trial court’s incorrect statement that there existed “testimonial evidence that drugs were involved” indicated it was considering unsubstantiated allegations in its sentencing decision. The burden thus fell on the state to show that this consideration played no part in the sentence imposed. See Williams v. State, 8 So.3d 1266, 1267 (Fla. 1st DCA 2009); Epprecht v. State, 488 So.2d 129, 130 (Fla. 3d DCA 1986) (“[T]he State has the burden to show from the record as a whole that the trial judge did not rely upon impermissible considerations in passing sentence upon the defendant where portions of the record reflect that the trial judge may have so relied.”); see also Reese, 639 So.2d at 1068 (holding “unsubstantiated allegations of misconduct” an impermissible sentencing factor). The state did not meet this burden. The state’s request for the 10-20-Life sentence was based in part on its allegation that drugs were involved in the crime. The trial court agreed that drug-related testimonial evidence was introduced at trial. Although Petitioner’s counsel sought to correct the error, the court neither acknowledged its mistake nor made any indication that the presence of drugs played no role in its sentencing decision. On the contrary, it stated that the sentence was “based on everything [it had] heard.” The state has not demonstrated that the phantom evidence played no role in the sentencing decision. See Epprecht, 488 So.2d at 130.

In order to establish prejudice, petitioner need only show that the trial court’s error undermines confidence that the sentence was correctly imposed. See Thompson v. State, 990 So.2d 482, 491 (Fla.2008). In the present case, the trial court clearly indicated that it was considering an unsubstantiated factual claim. This undermines confidence in the fairness, regularity and propriety of petitioner’s sentence. We are unable to say he would have received the same sentence, absent the court’s error. In this way, petitioner has shown prejudice.

Although appellate counsel has wide latitude in deciding which issues to raise, omitting a “dead-bang winner” constitutes deficient performance. Page v. United States, 884 F.2d 300, 302-03 (7th Cir.1989); see also Provenzano v. Dugger, 561 So.2d 541, 549 (Fla.1990) (“[C]ounsel need not raise every nonfrivolous issue revealed by the record.”). Appellate counsel performed deficiently by failing to raise the trial court’s uncritical acceptance of the prosecutor’s argument as fact, which led to consideration of constitutionally impermissible sentencing factors. See Ritter v. State, 885 So.2d 413, 414-15 (Fla. 1st DCA 2004). Appellate counsel’s failure to raise the trial court’s error on appeal was deficient performance that prejudiced the appellant, petitioner here. As the remedy for appellate counsel’s failure to assert this deprivation of due process as error, we grant the writ, vacate petitioner’s sentence, and remand for resentencing. See Jones v. State, 964 So.2d 855, 857 (Fla. 2d DCA 2007) (“Because a new appeal would be redundant, we reverse Jones’s sentence and remand with directions to the trial court to resentence Jones in accordance with this opinion.”). As in Anderson, 988 So.2d at 146, “we deem a second appeal to be unnecessary.”

The petition for writ of habeas corpus is granted, petitioner’s sentence is vacated and the case is remanded for resentencing.

CLARK, J. concurs.

THOMAS, J., concurs in result only.

      . In its opening statement, the prosecutor told the jury they would hear that a bag contained marijuana. But there was no such testimony at trial. In fact, when Mr. Sutton took the stand, he testified that the bag probably contained money. The state’s contention that the bag contained marijuana relies entirely upon testimony that Mr. Hernandez asked petitioner whether he was "going to let him take the stuff like that?” The state argues that the word "stuff" often refers to drugs, and that Mr. Hernandez's use of the term suggested drugs were involved in the crime.

      . Although petitioner faced a mandatory minimum of twenty years under the 10-20-Life statute, he was subject to a maximum sentence of only six years if sentenced as a youthful offender. See § 958.04(2), Fla. Stat. (2012); Bennett v. State, 24 So.3d 693, 694 (Fla. 1st DCA 2009) ("[A] trial court has the option of avoiding a 10/20/Life sentence, and may instead impose a youthful offender sentence.”). Petitioner produced several witnesses in support of sentencing him as a youthful offender, including a psychologist, his mother, and his godmother.

      ."This court is of course entitled to take judicial notice of its own records[.]” Kensler v. State, 890 So.2d 282, 282 n. 1 (Fla. 1st DCA 2004) (Ervin, L, concurring). See e.g., Foxworth v. Wainwright, 167 So.2d 868, 870 (Fla.1964) (holding that courts may take judicial notice of their own records).


text:
    In re John D. RAY.
    No. 2013-B-1275.
    Supreme Court of Louisiana.
    Sept. 13, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John D. Ray, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

From September 10, 2010 to June 3, 2011, respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment. In fact, since his admission to the Louisiana bar in April 1999, respondent has had a history of ineligibility to practice law for failing to comply with his professional obligations. During a sworn statement taken by the ODC in September 2011, respondent acknowledged that he engaged in the practice of law during these periods of ineligibility.

^DISCIPLINARY PROCEEDINGS

In November 2011, the ODC filed formal charges against respondent, alleging that his conduct, as set forth above, violated the following provisions of the Rules of Professional Conduct: Rules 1.1(c) (failure to pay bar dues and the disciplinary assessment), 5.5(a) (engaging in the unauthorized practice of law), and 8.4(a) (violation of the Rules of Professional Conduct). Respondent, through counsel, answered the formal charges and admitted to the basic factual allegations, with the exception of the allegation concerning his CLE ineligibility, and rule violations. The matter then proceeded to a formal hearing conducted by the hearing committee.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee also made the following additional factual findings:

1. Respondent received adequate notice of his bar dues and assessments on a yearly basis.
2. Respondent received adequate notice of his MCLE non-compliance relative to year 2002.
3. Prior to the year 2010, respondent never petitioned the LSBA and the Louisiana Attorney Disciplinary Board (“LADB”) for relief.
|34. Respondent did not disclose his various periods of ineligibility to his employer(s).
5. Respondent never self-reported to the LSBA that he had engaged in the practice of law while ineligible.
6. Respondent has cured his ineligibility in every instance by paying his dues and assessments, a late fee, and a reinstatement fee.
7. Respondent failed to obtain the required hours of professionalism and ethics in 2002, which resulted in his being declared MCLE ineligible in 2004.
8. Respondent has consistently in years other than 2002 obtained continuing legal education in excess of the required amount for lawyers admitted in Louisiana, in some years receiving as much as five times the required amount.
9. Respondent has paid all of the monetary sanctions levied in connection with his reinstatement following the various periods of ineligibility.

The committee determined that respondent’s failure to pay his bar dues and assessments was either knowing or intentional, and that his failure to comply with the MCLE requirements in 2002 was negligent. The committee also determined that respondent knowingly engaged in the practice of law while he was ineligible to do so. His actions created the potential for client harm, although no actual harm has been established. The committee noted respondent’s apparent professionalism and diligence in the actual practice of law and stated that this was “truly a case where an otherwise competent and ethical attorney simply failed, repeatedly, to comply with the Rules governing payment of fees and assessment of dues timely and did not cease to practice during the ensuing periods of ineligibility.” After previewing the ABA’s Standards for Imposing Lawyer Sanctions and the jurisprudence of this court, the committee determined the applicable baseline sanction is a one year and one day suspension.

In aggravation, the committee found a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1999). In mitigation, the committee found the absence of a pri- or disciplinary record, absence of a dishonest or selfish motive, personal “financial” problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, physical disability, “outstanding” character, and remorse. The committee noted that respondent’s candor, cooperation and attitude towards these proceedings was exemplary. According to the committee, respondent maintained a high level of professionalism, which weighed heavily on the committee in arriving at a recommended sanction.

Based on the nature of the violations, the totality of the record, and given aggravating factors balanced with factors in mitigation, the committee recommended respondent be suspended from the practice of law for one year and one day, with all but sixty days deferred, followed by two years of probation with the following conditions:

(1) During the entire time of the probation, respondent shall pay all bar dues and assessments levied by the bar association when due without fail;
(2) During the entire time of the probation, respondent shall comply with all MCLE requirements and shall do so in a timely manner;
(3) Any subsequent disciplinary complaints with alleged offenses arising during the probationary period may be treated by the ODC in a summary fashion as probation violation matters; and
|fi(4) Respondent will pay all costs and expenses of this proceeding.

The ODC filed an objection to the hearing committee’s report and recommendation, arguing that the committee had a sufficient factual basis upon which to determine that respondent intentionally violated Rule 1.1(c) and knowingly violated Rule 5.5(a). The ODC also argued that the committee erred in deferring all but sixty days of the suspension.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings do not appear to be manifestly erroneous as they are supported by the testimony and documentary evidence. The board also determined that the committee correctly applied the Rules of Professional Conduct.

The board determined respondent violated duties owed to his clients, the public, and the legal profession. He violated a duty to his clients and to his employer by leading them to believe that he was eligible to represent them. He violated a duty to the public by holding himself out to be a licensed attorney eligible to practice law. He intentionally failed to comply with MCLE requirements, intentionally failed to pay his bar dues and disciplinary assessments, and knowingly engaged in the practice of law while ineligible. Although no actual harm resulted from his actions, the potential to harm the adjudicative process was created when he engaged in the practice of law while he was ineligible. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board adopted the aggravating and mitigating factors found by the committee. However, the board declined to adopt the aggravating factor of [(¡substantial experience in the practice of law, noting that respondent’s first period of ineligibility occurred two years after he was admitted to the practice of law.

After further considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day, with all but sixty days deferred, followed by two years of probation with the following conditions:

(1) During the entire time of the probation, respondent shall pay all bar dues and assessments levied by the disciplinary board and bar association when due without fail;
(2) During the entire time of the probation, respondent shall comply with all MCLE requirements and shall do so in a timely manner; and
(3) Respondent should be assessed with all costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

17In this matter, the record supports a finding that respondent continued to practice law during multiple periods of ineligibility. Based on these findings, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In prior cases involving the practice of law by attorneys who are ineligible to do so for failure to comply with professional obligations, we have generally imposed a one year and one day suspension from the practice of law, some portion of which may be deferred. The board’s recommendation in this matter is [sconsistent with this jurisprudence. Accordingly, we will accept the board’s recommendation and suspend respondent from the practice of law for one year and one day, with all but sixty days deferred. Following the active portion of his suspension, respondent shall be placed on unsupervised probation for a period of two years. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan, which shall incorporate a requirement that respondent timely fulfill his professional obligations each year. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that John D. Ray, Louisiana Bar Roll number 26101, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that all but sixty days of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for two years governed by the conditions set forth in this opinion. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The records of the Louisiana State Bar Association ("LSBA”) reflect that respondent has been declared ineligible to practice law as follows:

        September 4, 2001-September 11, 2001 Failure to pay bar dues and disciplinary assessment
      September 4, 2002-September 4, 2002 Failure to pay bar dues and disciplinary assessment
      June 2, 2004-December 20, 2004 Failure to attend mandatory CLE
      September 7, 2004-December 20, 2004 Failure to pay bar dues and disciplinary assessment
      October 31, 2005-December 28, 2005 Failure to pay bar dues and disciplinary assessment
      October 8, 2007-October 22, 2007 Failure to pay bar dues and disciplinary assessment
      September 9, 2009-June 17, 2010 Failure to pay bar dues and disciplinary assessment
      September 10, 2010-June 3, 2011 Failure to pay bar dues and disciplinary assessment

      . The period of ineligibility in question relates back to a deficiency from 2002. Respondent failed to attend the requisite ethics and professionalism hours in 2002. However, due to an administrative delay, he was not certified ineligible until 2004. Therefore, despite having the requisite number of hours for 2004, he was still ineligible as a result of the 2002 deficiency.

      . The committee stated that "in multiple years and on multiple instances, Respondent knowingly failed to pay his bar dues and assessments ... timely resulting in seven (7) separate periods of ineligibility over the course of several years,” but then stated that "[rjespondent intentionally violated Rule 1.1(c) of the Rules of Professional Conduct in that he intentionally failed to pay his Bar dues and disciplinary assessment on multiple occasions.”

      . Between 2000 and 2001, respondent suffered from various medical conditions precipitated by a congenital birth defect that necessitated three operations.

      . See In re: Moeller, 12-2460 (La.3/19/13), 111 So.3d 325 (one year and one day suspension, with all but ninety days deferred, followed by a two-year period of probation with conditions, imposed upon an attorney who made court appearances on behalf of his clients during periods in which he was not eligible to practice law; the attorney had a long history of ineligibility and a prior disciplinary record); In re: Fisher, 09-1607 (La.12/18/09), 24 So.3d 191 (one-year suspension, with all but ninety days deferred, followed by a one-year period of supervised probation with conditions, imposed upon an attorney who represented a client in a bankruptcy matter during a period in which he was not eligible to practice law; the attorney had a long history of ineligibility but numerous mitigating factors were present); In re: Oldenburg, 09-0991 (La.10/16/09), 19 So.3d 455 (six-month suspension, with all but thirty days deferred, followed by a two-year period of probation with conditions, imposed upon an attorney who appeared in court on behalf of a client while he was ineligible to practice law); In re: Hardy, 03-0443 (La.5/2/03), 848 So.2d 511 (two-year suspension imposed upon an attorney for failing to comply with the minimum continuing legal education requirements, failing to cooperate with his probation monitor, and practicing law during a period of ineligibility; numerous aggravating factors present); In re: Richard, 00-1418 (La.8/31/00), 767 So.2d 36 (disbarment imposed upon an attorney without a prior disciplinary record who engaged in the practice of law while ineligible for more than six years); In re: Grady, 99-0440 (La.4/9/99), 731 So.2d 878 (one year and one day suspension imposed upon an attorney who failed to terminate a representation after he became ineligible and failed to advise his client of the status of her case; numerous aggravating factors present); and In re: Jones, 98-0207 (La.3/27/98), 708 So.2d 413 (one year and one day suspension, with six months deferred, imposed upon an attorney who practiced law while ineligible; numerous aggravating factors present).


author:
      PER CURIAM.

      KNOLL, J.,

text:
    Lenshonda ALEXANDER, Individually and on Behalf of her Minor Son, Damian Alexander and Darlene Myers-Alexander v. TOYOTA MOTOR SALES, U.S.A.; ABC Insurance Co.; General Motors Corporation; EFG Insurance Co.; New United Motor Manufacturing, Inc.; XYZ Insurance Co.; MNO Airbag Manufacturer; QRS Insurance Co.; State Farm Fire and Casualty Co., et al.
    No. 2013-C-0756.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   PER CURIAM.

hAt issue is the appropriateness of summary judgment in a case where a car dealership, not acting as the direct seller to an injured plaintiff, is alleged to owe a duty to warn about the dangers of first generation airbag deployment in a vehicle manufactured prior to the national campaign that promoted revised warning labels. Specifically, the plaintiff purchased the 1995 Toyota Corolla in question from A-Quality Auto Sales, LLC, (“A-Quality”), a used car dealership that immediately purchased the vehicle from Lakeside Toyota after a trade-in. Several months after the plaintiffs acquisition, the plaintiff was involved in an automobile accident wherein she suffered severe injuries. Among other allegations, the plaintiff alleged that Lakeside Toyota failed to attach a revised airbag warning label to her vehicle which would have prevented her injuries.

Lakeside Toyota filed a motion for summary judgment, claiming it owed no duty to warn the plaintiff. The trial court agreed and granted Lakeside Toyota’s 12motion for summary judgment.

The majority of the court of appeal reversed the grant of summary judgment. It noted that absence of privity of contract between the dealership and the plaintiff did not preclude a finding that a duty to warn was owed. La.Civ.Code art. 2315 and Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972). Additionally, the majority engaged in a duty-risk analysis and found Lakeside Toyota’s failure to warn its immediate buyer, A-Quality, of the danger was easily associated to the harm suffered by the plaintiff. It emphasized the fact that Lakeside Toyota had previously serviced this exact vehicle regularly and, accordingly, found that Lakeside Toyota shared with the immediate seller and the manufacturer the responsibilities to warn the plaintiff, as a foreseeable future user, that the vehicle at issue did not contain the revised warning label relative to the airbag. Finding that a duty could be owed, it analyzed the remaining duty-risk factors for the limited purpose of determining whether genuine issues of material fact existed. Ultimately, the court of appeal found there were remaining issues of fact that required the matter to proceed to trial and precluded the availability of summary judgment.

Judge Landrieu dissented with reasons, finding there was no proof of a defect and, thus, nothing about which to warn. Observing the fact that the plaintiffs vehicle complied with the federal standards for vehicles manufactured at that time, Judge Landrieu opined that the cause of action could only conceivably be based upon the Louisiana Products Liability Act and, in the absence of a dangerous or defective product, no duty to warn could be imposed.

Judge Lombard also dissented, characterizing the majority opinion as creating “an expansive duty to warn a third-party purchaser” of potential dangers.

Lakeside Toyota filed the instant writ application, wherein it contends that the |sappellate decision vastly broadens the potential liability of an automobile dealer even in its role as the non-manufacturing and non-selling entity. Further, Lakeside Toyota asserts the existing warning label was not inadequate or defective. Importantly, and as noted by Judge Landrieu, the replacement warning label which was required and promoted by a federal rule was only applicable to vehicles manufactured after 1997—not the plaintiffs 1995 Corolla. Accordingly, Lakeside Toyota argues there is no duty imposed by federal law in this matter. Regarding liability under state law, Lakeside Toyota asserts without proof of a defective condition or evidence of inadequacy, it owed no duty to warn the plaintiff of issues related to first generation airbags.

We agree with Lakeside Toyota and find summary judgment was appropriate for the following reasons. First, we note that it was uncontested that the federal rule promulgated by the National Highway Traffic Safety Administration did not require manufacturers or dealerships to install the revised warning labels in vehicles that were manufactured prior to February 1997. Because the vehicle at issue was manufactured prior to this date, no legal duty arose pursuant to this federal regulatory action.

We next analyze whether a duty could have arisen under the laws of Louisiana, in particular, the Louisiana Products Liability Act. La.R.S. 9:2800 et seq.

Insofar as Lakeside Toyota is not the manufacturer of the 1995 Corolla, any responsibility for tort damages it may have would necessarily arise under its role as a non-manufacturing seller. To find liability in this context, three requirements must be met: First, the product sold by Lakeside Toyota must be defective. Second, Lakeside Toyota must have had actual or constructive knowledge that the product it sold was defective. Lastly, Lakeside Toyota must have failed to declare the defect. Reaux v. Deep South Equipment Co., 02-1571, pp. 5-6 (La.App. 4 Cir. 2/5/08), 840 So.2d 20, 23-24. Further, because Lakeside Toyota did not sell the vehicle directly to the plaintiff, it must be demonstrated that the plaintiff falls within the ambit of those persons to whom the seller owes a duty. Gammill v. Invacare Corp., 08-0833 (La.App. 4 Cir. 12/17/08), 2 So.3d 557, 559.

All elements must be proven to succeed on this claim; therefore, a lack of factual support for just one element renders summary judgment in favor of Lakeside Toyota appropriate. We find the plaintiffs failed to produce factual evidence of a defect and therefore cannot prevail on the motion. Under the Louisiana Products Liability Act, “the manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.” La.R.S. 2800.54.(A). Louisiana Revised Statutes 2800.54(B) elaborates on the definition of “unreasonably dangerous”:

B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.

Because the plaintiffs admitted in their pleadings that, at the time of the accident, the airbags functioned as designed, the only possible argument that a defect existed is | abased in the inadequate warning category. La.R.S. 2800.54(B)(3). A product is “unreasonably dangerous” by virtue of an inadequate warning “if at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.” La.R.S. 9:2800.57(A).

We find the plaintiffs produced no evidentiary support to show that the lack of the 1997 revised airbag warning labels in the plaintiffs 1995 vehicle rendered the car unreasonably dangerous under the cited definition. As noted by Judge Lan-drieu in her dissent, “the mere fact that revised airbag warning labels were developed and were required in newly manufactured vehicles does not render older vehicles with first generation airbag and original caution labels defective.”

Because we find proof of a defect was lacking and we need only point to the absence of one of the required elements, we are not required to analyze the remaining factors. However, we make the following observations to further support our holding. As this court stated in Meany v. Meany, 94-0251, p. 6 (La.7/5/94), 639 So.2d 229, 233, certain policy considerations are to be taken into account in analyzing whether a duty is owed:

In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiffs harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving.

The majority of the court of appeal found an ease of association between the plaintiffs injuries and Lakeside Toyota’s conduct, emphasizing the fact that Lakeside | fiToyota had regularly serviced the vehicle when it was owned by the previous owner. Both parties concede, however, that Lakeside Toyota never worked on the mechanism at issue, the airbags. The majority of the court of appeal, though, found this to be non-dispositive, relying instead on the broader obligation of Lakeside Toyota, as the entity that serviced the vehicle, to promote safe transportation. While we acknowledge a general duty to advance safe travel and again note that duties may be owed in the absence of privity of contract, we find the instant facts are too attenuated to conclude an ease of association is present.

Lastly, as directed by Meany, 639 So.2d 229, we considered the policy concerns, and we find that permitting these facts to serve as the basis for a finding that a duty exists expands too greatly the potential liability of Louisiana automobile dealerships and the provisions of the Louisiana Products Liability Act. Accordingly, we reverse the court of appeal and reinstate the grant of summary judgment in favor of Lakeside Toyota.

REVERSED AND RENDERED.

KNOLL, J., dissents with written reasons.

KNOLL, J.,

dissenting.

With all due respect, I dissent, as I believe plaintiff, Lenshonda Alexander, has established triable issues of fact as to whether defendant Lakeside Toyota breached its duty to plaintiff in failing to provide adequate warning.

The majority finds plaintiff failed to produce sufficient factual evidence of a defect due to inadequate warning under the Louisiana Products Liability Act La.Rev.Stat. § 9:2800 et seq. to withstand defendant’s motion for summary judgment. I disagree. Generally, whether a warning is adequate is a question for the trier of fact. Jack v. Alberto-Culver USA, Inc., 06-1883 (La.2/22/07), 949 So.2d 1256. It is difficult to say plaintiff did not demonstrate she could meet her burden of proof at trial, as there is evidence in the record indicating both an inadequate warning and Lakeside’s knowledge.

• Federal Motor Vehicle Safety Standard 208 was amended because the pre-1997 warning labels were insufficient to address the dangers of first generation airbags.

• The National Highway Traffic Safety Administration (“NHSTA”), drafter of the rule, stated the new warning labels would “help reduce the adverse effects by increasing the number of people who read and understand the message of the warning labels.”

• Toyota wrote to the NHSTA recognizing “the seriousness of airbag aggres-sivity to an occupant closely situated to the airbag.”

• Toyota also wrote the NHSTA in 1996 to comment on the proposed warning label, noting the new label should be “mandatory and exclusive” and “the user will understand the danger once the label is read.”

• Toyota recognized the danger of first generation airbags by preparing a mass mailing to Toyota owners in 1997, containing a letter warning of the dangers of first generation airbags and two 1997 warning labels to affix to their vehicles.

• Toyota maintains Lakeside, as one of Toyota’s official dealers, would have received the same warning letter and copies of the 1997 warning label.

• Finally, Lakeside has admitted it had “knowledge of issue regarding first generation air-bags and of the air-bag warning labels” during 1996-2001.

This showing in the record demonstrates multiple genuine issues of material fact, including the adequacy of the original warning label, Lakeside’s knowledge of the inadequacy of the warning label, and whether the lack of adequate warning regarding the aggressivity of the airbags was cause-in-fact of plaintiffs injuries.

Furthermore, the Court of Appeal properly found Lakeside stood in relationship to plaintiff so as to create a legally recognized duty to plaintiff. Lakeside clearly qualifies as a “seller” under the LPLA, as it “is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.” La.Rev.Stat. § 9:2800.53(2). Under the LPLA, a non-manufacturing seller of products is responsible for damages in tort if: 1) the product he sold was defective; 2) he knew or should have known the product he sold was defective and 3) he failed to declare its defect. See, e.g., Reaux v. Deep South Equipment Co., 02-1571, pp. 5-6 (La.App. 4 Cir. 2/5/03), 840 So.2d 20, 23-24. However, after taking into account the policy considerations outlined in Meany v. Meany, 94-251, p. 6 (La.7/5/94), 639 So.2d 229, 233, the majority declines to find defendant owed a duty to plaintiff, declaring the factual circumstances of the case “too attenuated to con-elude an ease of association is present” between defendant’s conduct and plaintiffs injuries. I respectfully disagree. It is a general principle of tort law that one who supplies goods through a third person for use by another is subject to liability to those whom the supplier should expect to use the goods. Restatement (Second) of ToRts § 388. As the Restatement notes, where a supplier sells to a retailer “goods which are obviously to be used by the persons purchasing them from him” the question may arise as to whether the supplier is “exercising that reasonable care, which he owes to those who are to use it, by informing the [retailer] of its actual character.” Id. at § 388 cmt. n.

The facts of this case fit the Restatement’s scenario: Lakeside sold a product to a retailer who, in turn, sold the product to a customer. Lakeside knew A-Quality was buying cars for resale to others. The Court of Appeal correctly found an ease of association between a seller’s failure to warn and the harm suffered by a foreseeable user, “where the seller knew or should have known that the manufacturer did not furnish the user with a warning and at the same time the seller failed to adequately warn his immediate buyer (such as A-Quality) of the danger.” Alexander v. Toyota Motor Sales, 11-1259, p. 8 (La.App. 4 Cir. 3/6/13), 110 So.3d 668.

Moreover, I strongly disagree with the majority’s view of policy concerns. The basis of plaintiffs’ suit supports consumer protection. The consumer should have been informed of the dangers of first generation airbags, which were well-established and well-known by Toyota, but Lakeside simply failed to pass this information on to the consumer. In my view, I find the policy concerns support plaintiffs’ suit.

Given defendant’s duty to foreseeable users such as plaintiff and the complicated factual circumstances of this case, I believe summary judgment was inappropriate in the instant case. Accordingly, I would affirm the holding of the Court of Appeal.

       Chief Justice Johnson recused


text:
    STATE ex rel. Darrell THOMAS v. STATE of Louisiana.
    No. 2013-KH-0775.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Thomas, Darrell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 479-328; to the Court of Appeal, Fourth Circuit, No. 2013-K-0330.

Denied.


text:
    STATE ex rel. Francis BRAUNER v. STATE of Louisiana.
    No. 2013-KH-0776.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Brauner, Francis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 394-652; to the Court of Appeal, Fourth Circuit, No. 2013-K-0213.

Denied.


text:
    STATE ex rel. Leo JOSEY v. STATE of Louisiana.
    No. 2013-KH-0788.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Josey, Leo; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 394-653; to the Court of Appeal, Fourth Circuit, No. 2013-K-0261.

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


text:
    STATE ex rel. Edward THIBODEAUX v. STATE of Louisiana.
    No. 2013-KH-0789.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Thibodeaux, Edward; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, No. 46854; to the Court of Appeal, Third Circuit, No. KH 12-00683.

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


text:
    STATE ex rel. Edmond D. SPENCER v. STATE of Louisiana.
    No. 2013-KH-0797.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Spencer, Edmond D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 12-WCR-312; to the Court of Appeal, First Circuit, No. 2013 CW 0268.

Denied.


text:
    STATE of Louisiana v. Dominique VALLIER.
    No. 2013-KP-0806.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Vallier, Dominique; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 557,415; to the Court of Appeal, First Circuit, No. 2013 KW 0060.

Denied.


text:
    STATE of Louisiana v. George SPEARS.
    No. 2013-KP-0810.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Spears, George; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 07-04-0733; to the Court of Appeal, First Circuit, No. 2013 KW 0123.

Denied.


text:
    STATE ex rel. Bobby Joe HENDERSON v. STATE of Louisiana.
    No. 2013-KH-0816.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Henderson, Bobby Joe; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 26,935; to the Court of Appeal, Second Circuit, No. 48,-2S8-KH.

Denied.


text:
    STATE ex rel. Lorenzo C. WIGGINS v. STATE of Louisiana.
    No. 2013-KH-0832.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Wiggins, Lorenzo C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 08-03-0580; to the Court of Appeal, First Circuit, No. 2013 KW 0218.

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


text:
    STATE ex rel. Renil Escobar RIVERA v. STATE of Louisiana.
    No. 2013-KH-0833.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Rivera, Renil Escobar; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 08-5641; to the Court of Appeal, Fifth Circuit, No. 13-KH-106.

Denied.

GUIDRY, J., recused.


text:
    STATE ex rel. Alvin James SHANNON v. STATE of Louisiana.
    No. 2013-KH-0843.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Shannon, Alvin James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 316-027; to the Court of Appeal, Fourth Circuit, No. 2013-K-0364.

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